The Union County Board of Supervisors is taking a second look at its wind energy conversion ordinances after listening to the concerns from a group of residents.
In May several residents including Francine Ide, appeared before the supervisors with a petition with more than 600 signatures and approximately 30 videos of those who oppose building more wind turbines in Union County.
Union County Attorney Tim Kenyon addressed the board Monday during its regular weekly meeting in the Union County Courthouse to explain the board’s legal options.
Supervisor Rick Friday opened the discussion by reminding attendees that before passing the current ordinance the board had14 discussions and three public hearings over a period of several months.
Kenyon said the county’s actions regarding the wind turbine construction has to include a specific issue of risk or danger to the county and a rule that allows the county to intervene.
“The fact that ‘I don’t like it,’ can’t be a factor,” he said.
The current ordinance is designed to “avoid or mitigate damage to the public infrastructure” such as roads and bridges, Kenyon said. Beyond that, regulating the wind turbines becomes tricky.
Land use rights are protected by the Iowa Constitution as “fundamental rights here in Iowa dealing with acquiring, possessing, and utilizing personal property rights” Kenyon said. The county cannot make a law that “impairs financial obligations.”
In this equation, Mid-American Energy is considered a “person” according to Iowa code and, as such, has the right to engage in contracts with other persons. The county does not have the right to interfere in those contracts.
“We’re talking about a situation where up front, on its face, the county’s really not involved,” Kenyon said.
Zoning
There are some tools the board could use to further regulate the turbines. One of those tools would be to establish zoning in the unincorporated areas of Union County, Historically, residents of rural Union County have opposed zoning.
Kenyon said whenever a group starts speaking about restricting the use of land — including because of the impact on neighbors, the general public or environmental issues — they are essentially talking about zoning, even if they do not use the word.
Iowa code has very strict rules regarding the development of zoning. Any county ordinance that attempts to regulate land usage without following those rules would not stand in a court, Kenyon said.
He also cautioned that creating zoning, even if specifically designed to regulate wind turbines, might create unforeseen problems with other agricultural activities such as feeding operations.
Nuisance
A second idea the board could look at is the nuisance laws. However, Kenyon advised that a nuisance suit would be more appropriate coming from landowners who are affected by neighboring wind turbines rather than the county. Nuisance complaints are most often due to odor problems but noise and health concerns could apply.
Taxation
Another notion brought up in the meeting was the idea of using taxes to limit the turbines. Kenyon explained that using exorbitant taxes in order to discourage or eliminate wind farms would be indirect zoning and would, therefore, not hold up in court.
Public input
The board will be accepting feedback from the public in the form or written or oral comments over the next few weeks and expects to make a decision on whether a temporary moratorium on allowing new permits for wind turbines is justified.
“This request is certainly reasonable, ... to do otherwise I think is disrespectful to the question I think it’s disrespectful to the folks that say, ‘We’d like an answer,’” Kenyon said.
A moratorium would allow time for more study to be done regarding the concerns brought up by residents and other questions such as whether or not there is land available in Union County that would be suitable for wind turbines and the effect on property values and rural developmental growth. It would not, however, affect those projects that are already in progress.