IN THE SUPREME COURT OF IOWA
No. 18–1431
Filed May 3, 2019
BERTHA MATHIS, STEPHEN MATHIS, TILLFORD EGLAND, THOMAS
STILLMAN, LOIS STILLMAN, MICHAEL REDING, and SUZANNE
REDING,
Appellants,
vs.
PALO ALTO COUNTY BOARD OF SUPERVISORS,
Appellee,
and
PALO ALTO WIND ENERGY, L.L.C. and MIDAMERICAN ENERGY
COMPANY,
Appellees.
Appeal from the Iowa District Court for Palo Alto County, Nancy L.
Whittenburg, Judge.
Landowners appeal a district court order granting summary
judgment and sustaining the actions of a county board of supervisors
adopting a wind energy ordinance and approving a wind energy project.
AFFIRMED.
Wallace L. Taylor of Law Offices of Wallace L. Taylor, Cedar Rapids,
and John M. Murray of Murray and Murray, Storm Lake, for appellants.
Sheila K. Tipton, Haley R. Van Loon, and Adam C. Van Dike of
Brown, Winick, Graves, Gross, Baskerville & Schoenebaum, PLC, Des
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Moines, and Peter C. Hart, Palo Alto County Attorney, for appellee Palo
Alto County Board of Supervisors.
Bret A. Dublinske and Brant M. Leonard, of Fredrikson & Byron,
P.A., Des Moines, for appellees Palo Alto Wind Energy, L.L.C. and
MidAmerican Energy Company.
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MANSFIELD, Justice.
In this case we are called upon to review the decisions of a county
board of supervisors approving a wind energy ordinance and a specific
wind energy project. Although the challengers raise a number of well-
presented arguments, in the end we conclude they were matters for the
board of supervisors—not the courts—to resolve. We therefore affirm the
judgment of the district court granting summary judgment and dismissing
the plaintiffs’ claims.
I. Background Facts and Proceedings.
In late July 2015, the development manager for a renewable energy
company asked Joseph Neary, the Palo Alto County planning and zoning
administrator, about Palo Alto County’s zoning ordinances relating to wind
energy turbines. Approximately four months later, Mark Zaccone of
another company, Invenergy, L.L.C., contacted Neary with the same
inquiry. Invenergy is the parent company of Palo Alto Wind Energy, L.L.C.
(PAWE). Invenergy was interested in developing a 340-megawatt, 170-
turbine wind energy project in Palo Alto County that would be owned and
operated by MidAmerican Energy Company (MidAmerican).
At that time, there were only a few wind turbines in Palo Alto County.
The existing ordinance, which had been modified most recently in 2003,
contained only a single paragraph devoted to wind turbines. The members
of the Palo Alto County Planning and Zoning Commission believed that a
more detailed ordinance was needed.
During the first half of 2016, County Attorney Peter Hart worked on
drafting a new zoning ordinance, modeling his efforts on ordinances from
other Iowa counties. Invenergy personnel interacted with Hart and offered
suggestions during the drafting process. However, Invenergy and
MidAmerican were not satisfied with the final draft that emerged from the
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Commission meeting on August 11. On August 26, they sent strongly
worded written comments to each member of the Palo Alto County Board
of Supervisors, explaining that “nearly all of these revisions are necessary
in order to establish a wind ordinance that will actually allow a wind
project to be developed.”
Among other things, Invenergy and MidAmerican urged the Board
to reconsider the Commission’s proposed 2640-foot setback for wind
turbines from permanent residential dwellings. They said such a setback
“would make developing a Wind Energy Conversion System in the County
practically impossible.” They pointed out that other counties have
generally implemented a 1000- to 1320-foot setback, and a setback greater
than 1500 feet “would make it virtually impossible for Invenergy to move
forward with the proposed project and may very well deter other wind
development within the County.” Invenergy and MidAmerican also
proposed that the Board modify a proposed 2640-foot setback from
cemeteries in favor of a 1000-foot setback.
In addition, Invenergy and MidAmerican urged the Board to remove
a provision from the ordinance that prohibited the occurrence of any
shadow flicker on an existing residential structure, explaining that shadow
flicker (i.e., the shadows cast by a rotating turbine within a residence) “is
an unavoidable consequence of having an operational Wind Energy
Conversion System in the County.” Invenergy and MidAmerican proposed
instead a provision that
no non-participating Permanent Residential Dwelling will
experience more than 30 hours per year of shadow flicker
under planned operating conditions. If an owner of a non-
participating Permanent Residential Dwelling experiences
more than 50 hours of shadow flicker per year under . . .
normal operating conditions, then the Owner/Developer shall
be obligated to mitigate such shadow flicker to comply with
the terms of this ordinance.
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Other modifications were also sought. In conclusion, their letter made it
clear that without a number of these requested changes, the 340-
megawatt wind project would not go forward.
In September, the Board approved a modified wind energy ordinance
that incorporated a number of Invenergy and MidAmerican’s demands,
including a minimum setback of 1500 feet from residences. However, the
Board did not adopt everything Invenergy and MidAmerican had
requested. For shadow flicker, the ordinance imposed a mitigation
obligation whenever thirty hours per year (not fifty) of shadow flicker
occurred. The ordinance also established a 1500-foot setback (not 1000)
from cemeteries.
Three public readings of the ordinance occurred on September 13,
September 20, and September 27. At the final public reading on
September 27, the Board unanimously passed and approved the “Wind
Energy Conversion Systems Ordinance” (Ordinance) for Palo Alto County.
Nearly one year later, on August 31, 2017, Invenergy and its
subsidiary PAWE submitted an application for site plan review and
approval. The application requested approval for the 340-megawatt wind
energy project, including 199 potential turbine locations.
The Board held an informational meeting on the application on
September 21 and a public hearing on October 5. The project was
discussed as well at other public Board meetings in September and
October. The Board also received correspondence from the Iowa
Department of Natural Resources and the state archaeologist who made
recommendations for reducing or avoiding environmental or cultural
harms the project could cause. In addition, the Board received a report
from acoustician Richard James of E-Coustic Solutions contending the
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sound volume produced by the wind energy project would at times exceed
fifty decibels in violation of the ordinance.
On October 24, the Board held a further meeting and received
additional oral and written comments, including remarks by plaintiff
Stephen Mathis. At the conclusion of the meeting, the Board granted
conditional approval to PAWE’s application by a 3–2 vote.
At the time of the approval, PAWE and not MidAmerican owned the
project. However, MidAmerican acknowledged that it “intend[ed] to
acquire, but ha[d] not yet acquired, the Project from PAWE based on and
subject to certain development milestones pursuant to a purchase
agreement executed by PAWE and MidAmerican.” MidAmerican was not
then legally obligated to acquire the project and could have terminated the
asset purchase agreement for its convenience.
On November 22, the plaintiffs filed a petition for declaratory and
injunctive relief and for a writ of certiorari against the Board in the Iowa
District Court for Palo Alto County. As amended, the petition sought (1) a
declaration that the ordinance was arbitrary, capricious, unreasonable,
void, and unenforceable; and (2) a writ determining that the approval of
PAWE’s application should be set aside as illegal, arbitrary, capricious,
unreasonable, and void. PAWE and MidAmerican were granted leave to
intervene as defendants.
On June 8, 2018, PAWE and MidAmerican filed a motion for
summary judgment seeking to dismiss the plaintiffs’ claims. On June 11,
the Board joined in PAWE and MidAmerican’s motion. On July 25, the
district court entered an order sustaining the motion for summary
judgment. The plaintiffs appealed, and we retained the appeal.
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II. Standard of Review.
“We review summary judgment rulings for correction of errors at
law.” Johnson Propane, Heating & Cooling, Inc. v. Iowa Dep’t of Transp.,
891 N.W.2d 220, 224 (Iowa 2017). “Summary judgment is appropriate if
the record, shows ‘that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.’ ”
TSB Holdings, L.L.C. v. Bd. of Adjustment for City of Iowa City, 913 N.W.2d
1, 10 (Iowa 2018) (quoting Iowa R. Civ. P. 1.981(3)).
Regarding certiorari proceedings, we have held,
[T]he district court finds the facts anew only to determine if
there was illegality not appearing in the record made before
the board. Fact-findings or issues that were before the board
for decision are “reviewed under the substantial evidence
standard.”
Id. (citation omitted) (quoting Bontrager Auto Serv. v. Iowa City Bd. of
Adjustment, 748 N.W.2d 483, 494–95 (Iowa 2008)).
III. Analysis.
A. Legality of the Ordinance.
We start this discussion with the strong presumption of
the validity of the ordinance and amendments thereto. If the
reasonableness of the amendment is fairly debatable, we will
not substitute our judgment for that of the Board of
Supervisors.
Perkins v. Bd. of Supervisors of Madison Cty., 636 N.W.2d 58, 67 (Iowa
2001) (citation omitted); see also TSB Holdings, 913 N.W.2d at 14. “[T]he
general rule [is] that zoning determinations are a legislative function of a
city council or board of supervisors.” Residential & Agric. Advisory Comm.,
LLC v. Dyersville City Council, 888 N.W.2d 24, 40 (Iowa 2016).
The plaintiffs do not contend that the ordinance was procedurally or
substantively improper, or that it varies significantly from wind energy
ordinances adopted in other Iowa counties. Instead, their objection is that
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Invenergy and MidAmerican allegedly wrote the ordinance, thus rendering
it illegal.
We are not persuaded. The record indicates that the ordinance was
drafted primarily by County Attorney Hart. Invenergy and MidAmerican
had input on the ordinance, and on August 26, 2016, made clear that they
could not go forward unless certain modifications were made. However,
the mere fact that an ordinance incorporates one or more requests from a
private party does not make the ordinance unlawful. Lobbying our
government is every citizen’s constitutional right, and both the plaintiffs
and the intervenors exercised that right here. See Iowa Const. art. I, § 20
(“The people have the right freely to assemble together to counsel for the
common good; to make known their opinions to their representatives and
to petition for a redress of grievances.”).
We draw guidance from our decision in Montgomery v. Bremer
County Board of Supervisors, 299 N.W.2d 687 (Iowa 1980). There we held
that the mere fact that rezoning had been requested by a company
proposing to erect and operate a hog-slaughtering plant did not render it
unlawful. Id. at 691, 695. We noted, “While the rezoning was prompted
by the request from Hormel, the Board did not merely rubberstamp the
request.” Id. at 695.
The same is true here. The Board considered Invenergy and
MidAmerican’s suggestions and accepted some but not all of them. The
members educated themselves and made their own decisions. As one
supervisor put it, “I spent two hours a day for one month calling all over
the United States checking on wind energy.” This supervisor understood
that “Invenergy gets more money the more windmills they put up . . . .”
He believed the 1500-foot setback that was ultimately adopted came out
of Wisconsin as he “talked to some people up there.” While defending the
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process by which the ordinance was adopted, this supervisor ultimately
voted against the PAWE project. As he explained, after circulating a
questionnaire in his district, “it [came] back pretty strong in my
questionnaire that in my district they didn’t want windmills. The majority
didn’t want windmills.” Another supervisor explained that he supported
the 1500-foot setback because it was the most stringent in Iowa and he
“thought it was fair to everybody.” 1 As he testified, “[P]eople that did not
want [wind] energy . . . were . . . expressing their views, and people that
wanted to have it were expressing theirs, so we tried to pick something
that was fair to everybody.”
Based on our review of the summary judgment record, we find no
basis for setting aside the Ordinance as approved by the county’s elected
legislative body. We hold that the district court did not err in granting
summary judgment in favor of the defendants on the plaintiffs’ claim that
the Ordinance was void and unenforceable.
B. Approval of the PAWE Wind Energy Project.
The plaintiffs next contend that the Board’s approval of the wind
energy project violated the terms of the Ordinance and was arbitrary and
capricious. As noted above, we do not get to decide the facts. Our portfolio
is simply to determine whether substantial evidence supports the Board’s
findings. See, e.g., Bontrager Auto Serv., 748 N.W.2d at 495.
1. The owner/developer issue. The plaintiffs first claim that
approval should not have been granted because PAWE and Invenergy,
which submitted the request for approval, were not the “Owner/Developer”
of the project. Section 3(e) of the ordinance defines “Owner/Developer” to
1Cf. In re Application of Champaign Wind, LLC, 58 N.E.3d 1142, 1153–54 (Ohio
2016) (upholding an agency determination that an appropriate minimum residential
setback was 919 feet).
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“mean the individual, firm, business or entity that intends to own and
operate a Wind Energy Conversion System in accordance with this
Ordinance.” Section 4 requires any request for site plan and approval to
be submitted by the “Owner/Developer.” The plaintiffs argue that PAWE
and Invenergy did not meet the requirements of the section 3(e) definition,
because PAWE intended to transfer ownership of the project to
MidAmerican and thus never intended to “operate” it.
We agree with the district court’s resolution of this issue.
Ordinances should be read as a whole. See Ames 2304, LLC, v. City of
Ames, Zoning Bd. of Adjustment, ___ N.W.2d ___, ___ (Iowa 2019) (“Our
court must consider a statute or ordinance ‘in its entirety [and] not just
[through] isolated words or phrases.’ ” (alterations in original) (quoting
State v. Romer, 832 N.W.2d 169, 176 (Iowa 2016))). Section 9 authorizes
a change in ownership of a wind project if the Board consents. It adds,
“[S]uch consent shall not be unreasonably withheld.” Hence, the
Ordinance permits the initial owner of the wind project to transfer
ownership to another entity with the consent of the Board. Nothing here
limits the time period when this transfer may occur, so long as the Board
consents.
Reading the Ordinance in its entirety, we conclude that an
application would be compliant if filed by the party or parties that own the
project at the time of the application, with disclosure of any anticipated
future transfer. That occurred here. In their application, PAWE and
Invenergy actually asked for advance approval to transfer the permit,
agreements, and other project assets and interests to MidAmerican. The
October 24, 2017 resolution conditionally approving the project does not
reflect such an approval, but the point remains that MidAmerican’s
potential future ownership was made known. MidAmerican appeared
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during the public proceedings and stated that it would purchase the
development once it was complete and then manage construction of the
project. Thus, the members of the Board were aware that MidAmerican
could (and even likely would) take over ownership and operation of the
project. We agree there was no violation of the ordinance.
We also find no merit in plaintiffs’ argument that “due diligence to
ensure that the proper entity is submitting the permit application” means
MidAmerican must be the applicant so as to “be obligated to the county to
be responsible for the requirements of the permit.” It is undisputed that
if MidAmerican took over the permit as an assignee, it would succeed to
PAWE’s legal obligations thereunder. See TSB Holdings, 913 N.W.2d at 16
(“An assignment occurs when an assignor transfers to its assignee ‘the
whole of any property or right in the property’ such that ‘the assignee
assumes the rights, remedies, and benefits of the assignor,’ and ‘also takes
the property subject to all defenses to which the assignor is subject.’ ”
(quoting Red Giant Oil Co. v. Lawlor, 528 N.W.2d 524, 533 (Iowa 1995))).
In any event, substantial compliance with the Ordinance would have
been sufficient here. See Bontrager Auto Serv., 748 N.W.2d at 488; Obrecht
v. Cerro Gordo Cty. Zoning Bd. of Adjustment, 494 N.W.2d 701, 703 (Iowa
1993). In Obrecht, a county zoning ordinance required that an application
for special use be signed by the landowner. Obrecht, 494 N.W.2d at 703.
The application had been signed by the lessee of the land, not the owner,
but the owner appeared at the hearing and voiced no opposition. Id. at
702, 703. The owner was available to answer any questions. Id. at 703.
We held that this was substantial compliance because “[t]he objectives of
the owner filing requirement were more than satisfied.” Id.
In similar fashion, there was substantial compliance with the
Ordinance here. The current owner of the project submitted the
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application with full disclosure of its plans to transfer ownership and
operation to another entity. MidAmerican, the expected transferee,
attended both the October 5 public hearing and the October 24 meeting at
which the application was approved. MidAmerican was asked to speak at
both meetings. The Board was aware of MidAmerican’s anticipated role.
2. DNR and the state archaeologist. The plaintiffs next argue that
the Board acted arbitrarily and capriciously in disregarding the
recommendations of the DNR and the state archaeologist. The DNR
provided letters of June 2016 and May 2017 that applied to potential wind
projects in Clay, Kossuth, and Palo Alto Counties. In the letters, the DNR
acknowledged that it “does not regulate wind farms.” Nonetheless, the
DNR recommended a one-mile buffer area between wind turbines and
wildlife conservation and riparian areas as well as special measures to
protect threatened and endangered species. It also recommended
conducting pre- and post-construction surveys for birds and bats.
The office of the state archaeologist reviewed this specific wind
project and shared its recommendations in a May 8, 2017 email. The office
recommended that pre-construction surveys be performed by qualified
archaeologists because of the possibility of unmarked graves or
cemeteries.
The undisputed record indicates that the Board reviewed these
recommendations but elected not to follow them. One supervisor testified
that “these were recommendations that we looked at” but they were “just
too stringent on some of this.” Another supervisor confirmed that the
Board “reviewed their information.” Yet another supervisor explained that
the Board talked to the County’s own conservation director about
environmental issues. We agree with defendants that the summary
judgment record fails to show the Board acted arbitrarily or capriciously.
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3. The noise issue. The plaintiffs also urge that the Board acted
illegally, arbitrarily, and capriciously in disregarding a submission from
an acoustical expert. According to the plaintiffs, this showed that the
project would at times exceed the maximum permissible fifty-decibel noise
level as measured at the exterior wall of any residential building.
As part of their application, PAWE and Invenergy submitted a
detailed noise analysis. That analysis predicted sound levels at each
permanent residence (a total of 268 receptor points). It assumed (1) full
simultaneous operation of all 198 turbines (even though no more than 170
would actually be operational), (2) the maximum noise emission value
provided by the manufacturer for each turbine, (3) completely reflective
ground, and (4) the lowest degree of atmospheric absorption—i.e., a set of
conditions that would produce the greatest noise. Using these
assumptions, PAWE and Invenergy’s analysis projected noise levels of 27.4
decibels to 49.9 decibels.
The report cited by plaintiffs from E-Coustic Solutions did not make
an independent prediction of noise levels. Instead, it simply reanalyzed
the work of PAWE and Invenergy’s expert by pointing out that wind
turbines can have noise levels fluctuating by plus or minus five decibels.
Thus, according to this expert, a projected noise level of no more than
forty-five to fifty decibels could result in some instances where noise
actually exceeds fifty decibels.
Once again, we are not persuaded that the Board acted illegally,
arbitrarily, or capriciously. The record does not indicate that the Board of
Supervisors ignored E-Coustic’s expert submission. To begin with, as
noted by the district court, PAWE and Invenergy’s analysis was predicated
on a series of pessimistic assumptions. And according to the Ordinance,
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the fifty-decibel maximum only applied “under normal operating
conditions.”
Regardless, Board members testified that they relied on the fact that
the Ordinance imposed a maximum. If PAWE and Invenergy’s predictions
were off, they would still be legally obligated to reduce the noise. As one
supervisor put it, “[U]ntil you put in the project and see what the noise
level is, there’s no way of knowing. And with us having in place a decibel
limit . . . I’m comfortable with that.” Another supervisor commented, “[I]f
they don’t meet the ordinance they’re not in compliance, so . . . there would
be consequences.”
4. Decommissioning cost. Lastly, the plaintiffs insist that the Board
acted illegally, arbitrarily, and capriciously in accepting PAWE and
Invenergy’s $33,480 per-turbine cost figure for decommissioning. The
Ordinance requires each application for permit to include a
decommissioning plan “outlining the anticipated means and cost of
removing each Wind Energy Device at the end of its serviceable life or upon
becoming a discontinued use.” The Ordinance further requires the cost
estimate to be performed by a professional engineer licensed in Iowa, and
it requires the owner/developer to enter into a binding decommissioning
and removal agreement.
PAWE and Invenergy complied with these provisions. A licensed
Iowa professional engineer prepared their decommissioning plan. PAWE
and Invenergy entered into a binding agreement to decommission and
remove the wind turbines and any other structures associated with the
wind project and restore the ground cover. As mandated by the Ordinance,
PAWE promised to provide a bond in the amount of $5,691,655 ($33,480
times 170 wind turbines). It also promised to bear any additional expenses
of turbine decommissioning and removal. These obligations would be
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assumed by MidAmerican if ownership of the project were transferred to
it.
The plaintiffs argue that the Board “gave no consideration to the
probability that the decommissioning would be underfunded.” They cite
to an email that the supervisors received from a business professor at
Clarke University in Dubuque urging that the cost of removal is presently
closer to $200,000 per turbine. But this individual was not a licensed
engineer and was merely relaying information from another study relating
to another project in another state. His email made it clear that he was
not a supporter of wind farms: “This whole industry is a giant tax credit
program for the companies putting them up. They have virtually zero
effect on carbon emissions and produce little energy that is astronomical
in terms of cost—government subsidies are propping the whole industry.”
We do not find the Board acted improperly in relying on the only cost
estimate that came from a licensed professional engineer. See Perkins,
636 N.W.2d at 67 (“We will uphold the action of the Board of Supervisors
if it is supported by competent and substantial evidence.”). Furthermore,
under the decommissioning agreement, PAWE and Invenergy committed
to updating the decommissioning plan annually and to increasing the
bond “[i]f an updated Decommissioning Plan indicates a Decommissioning
cost greater than $33,480.00 per turbine.”
IV. Conclusion.
For the foregoing reasons, we affirm the judgment of the district
court. As this case reveals, wind farms are not without drawbacks. But
in this case the weighing of those drawbacks against any benefits was
entrusted to the elected representatives on the Palo Alto County Board of
Supervisors.
AFFIRMED.