Farmer sues Tama County supervisors over wind ordinance reaffirmation
TOLEDO — After asking the Tama County Board of Supervisors week after week to consider enacting a moratorium on future industrial wind energy projects – only to have the requests denied or dismissed – a petition has been filed against the board by a member of the Tama County Against Turbines coalition in regards to the board’s recent action to ‘reaffirm’ the county’s wind energy conversion system (WECS) ordinance.
On June 23, Dysart resident and farmer Richard W. Arp filed a petition for declaratory judgment in the local district court against the Tama County Board of Supervisors alleging, in part, that action taken by the three-member board during its regular, weekly meeting on May 16 violated Iowa Code.
The board includes supervisors Dan Anderson, Bill Faircloth, and Larry Vest. A declaratory judgment is a binding judgment to determine the rights and obligations of each party.
In his petition, Arp alleges the board did not follow both Iowa Code and the county’s own policies when members voted 3-0 to “reaffirm” the 2010 Tama County Zoning Ordinance VI.I Amendment No. 1 – which includes the WECS ordinance – “as is” after only one posting of the agenda item at least 24 hours prior and following no opportunity for public input.
Tama County’s WECS ordinance dates back to 2010, when it was added to the county’s 1998 set of zoning ordinances by amendment.
Arp alleges in Count I of his petition that the board’s decision to reaffirm the ordinance is illegal and void as the board lacks “requisite authority to act.” The petition states that both the Code of Iowa and Tama County’s ordinance make no differentiation between “adopting an ordinance” and “readopting” or “reaffirming” an ordinance.
Under Iowa Code, the passage of any proposed ordinance or amendment by a county’s legislative body can only be accomplished following consideration and passage “at two meetings of the board prior to the meeting at which it is to be finally passed.” This law can only be circumvented by suspending the rules with a recorded vote of not less than a majority of the supervisors.
In his petition, Arp alleges the county failed to hold the requisite three readings of the ordinance before final passage and “readoption,” and also did not hold a public hearing as required.
Arp further alleges that the board of supervisors did not follow Iowa Code when the board failed to adhere to the 15-day notice/publication requirement for any proposed ordinance or amendment prior to first consideration.
Arp states in the petition that the only notice provided that the board intended to “reaffirm” the WECS ordinance on May 16, was the meeting notice and agenda posted in the Tama County Administration Building at least 24 hours prior to the meeting.
Under Count II, Arp alleges the board of supervisors’ decision to reaffirm the ordinance “is not supported by substantial evidence, and is arbitrary, capricious and unreasonable under the circumstances.”
Arp cites the purpose and intent of the county’s zoning ordinances — to “promote the safety, health and general welfare of the residents of Tama County” — was bypassed by the board on May 16 when they failed to first “undertake reasonable consideration and meaningful review of the county’s regulations.”
By refusing to take a moratorium vote on future industrial wind energy projects in order to review the county’s “outdated” WECS ordinance as the coalition Tama County Against Turbines repeatedly asked the board to do on multiple occasions, Arp alleges the decision to reaffirm was not supported by evidence.
Arp also alleges the “sole stated basis for the Board’s refusal to vote on the question of proposing a moratorium” was the threat of a lawsuit by the wind energy developer Salt Creek Wind LLC, which is currently developing a wind farm in the central part of the county.
The letter Arp cites, dated May 11, 2022, was addressed to the board supervisors and sent to Tama County Attorney Brent Heeren from the law offices of Sullivan & Ward. It threatens the county with a possible lawsuit if a moratorium is enacted but does not mention legal action if the county simply decided to review its 2010 WECS ordinance.
The threat of legal action alone, Arp states in his petition, “bears no reasonable relationship to the promotion of health, safety or general welfare of Tama County residents.” Arp further finds it “unreasonable” that the board did not consider “on the record” any other information beyond the Salt Creek letter in its May 16 decision to reaffirm.
In his petition, Arp asks the court to declare the board of supervisors’ May 16 vote to reaffirm the 2010 WECS ordinance as illegal and void.
Arp further asks the court to command the board to follow Iowa law by publishing notice in accordance with Iowa Code and to hold a public hearing regarding reconsideration of the 2010 WECS ordinance.
Arp would also like the court to enact a temporary order restraining the board and other Tama County agencies from “authorizing or approving any permits for new commercial wind energy projects, or additional permits for existing wind energy projects” until after the board has held a public hearing to reconsider the 2010 WECS ordinance.
Supervisors retain counsel, Conifer speaks
During the June 27 supervisors meeting, the board discussed hiring attorney Carlton Salmons of Heartland Insurance Risk Pool as counsel for Tama County in the suit brought by Arp.
As the county’s risk pool attorney, Salmons originally advised the board to reaffirm their current ordinances and avoid making comments on the questions posed by the turbine coalition.
Vest made the motion to approve Salmons, which was seconded by supervisor Anderson and ultimately approved.
When contacted late last week regarding both the Arp petition and the question of who would be representing the board in the lawsuit, Tama County Attorney Brent Heeren declined to discuss specifics, instead referring to the meeting agenda item pertaining to the litigation.
“Any comment would be speculation and premature,” Heeren wrote in an email. “To avoid prejudice or disadvantage regarding the position of the Office of the Tama County Board of Supervisors relative to the pending litigation; no comment will be forthcoming.”
During the aforementioned meeting, the three supervisors said very little regarding the lawsuit, although a representative from Conifer Power, which owns Salt Creek Wind LLC, was present during the meeting and part of the agenda.
Tom Swierczewski stood in front of the packed boardroom to address some of the main concerns behind the Tama County Against Wind Turbines coalition.
“I’ve stayed silent until now because Conifer Power didn’t feel the need to take valuable time from your community during these meetings to answer questions about Salt Creek Wind. Because it has been clear to us that there is little interest in the truth,” Swierczewski said. “Put simply, Salt Creek Wind, once built, will be an economic engine for Tama County.”
Swierczewski indicated his presence was motivated by a desire to educate the coalition on what he viewed as misinformation being spread while also highlighting the benefits that come from wind energy.
In a press release from Tama County Against Wind Turbines dated June 24, Arp included the following statement.
“The current [Tama County] ordinance lacks a detailed public complaint resolution process, and does not provide the necessary clarity on Tama County’s role in enforcing the ordinance, including fines and consequences for failing to comply with it. Nor is there any language about restricting shadow flicker or infrasound that can be harmful to people and animals,” he wrote. “Those are among the reasons why the coalition has been calling for the many necessary changes to the ordinance to provide greater public safety for current and future generations.”