Government : Tama Co. Farmer Challengers Supervisors Action Reaffirming Outdated Ordinance

By Kathy Krafka Harkema

Ordinance reaffirmed unchanged, despite hundreds of Tama County residents calling for necessary changes for public safety

On June 22, Plaintiff Richard W. Arp, a fourth-generation Tama County crop and livestock producer who farms near Clutier, filed a petition for declaratory judgment against the Tama County Board of Supervisors in the Iowa District Court in and for Tama County.

A declaratory judgment is a binding judgment from the Court to determine the rights and obligations of each party.

Arp, a member of the Tama County Against Turbines LLC (TCAT) coalition asks the Court to declare the May 16, 2022, Tama County Board of Supervisors' re-adoption of the 2010 Tama County Zoning Ordinance VI.I Amendment Number 1, regulating commercial wind projects, as illegal and void as the Supervisors failed to provide required notice or to hold the requisite public hearing to allow for public input.

Supervisors reaffirmed the ordinance May 16 without any changes, despite the public outcry by hundreds of residents calling for a comprehensive revision and modernization of the ordinance.

Hundreds of petitioners have called for significant changes to the ordinance last approved 12 years ago, in 2010, after first being a part of the County's master zoning ordinance adopted in 1998.

"Nothing of substance has changed in Tama County's ordinance requirements for industrial wind projects for 24 years," said Tama County Against Turbines Chairman Jon Winkelpleck, a fourth-generation crop and livestock farmer from rural Dysart. "Wind turbines now can tower 65 stories or more, operate at much greater speeds, and can cause more potential interference with communications signals like emergency 911 and other communications systems. That's why ordinances must be updated to better protect public safety," he said.

Arp said, "The minimal Tama County ordinances don't provide safe setbacks from property lines which are necessary to better protect the property rights of non-participating landowners who have not signed easements for wind projects. Tama County's current ordinance also allows far too much sound to be emitted from wind turbines."

Arp also said, "The current 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. 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."

About the lawsuit and Tama County wind energy ordinance regulations

The lawsuit claims the Board has used the outcome of the May 16 vote "as a weapon to stifle further discussion on the matter." For example, despite numerous public requests, the Board has refused to include concerns about the Wind Energy Ordinance on any meeting agenda since May 16, and essentially claims that the concerns by Arp, as the Plaintiff, and other residents of Tama County are now moot.

The lawsuit seeks to require the Supervisors to follow Iowa law, by providing the required public notices and holding a public hearing to allow for public input, before adopting the County's Wind Energy Conversion System ordinance (WECS).

Supervisors failed to meet statutory procedural requirements before their May 16 re-adoption of the Wind Energy Conversion System Ordinance without being considered and voted on for passage at two meetings of the Board of Supervisors prior to the meeting at which it may finally be passed. The multiple public hearing requirement may only be waived upon a recorded vote of not less than two-thirds of the members of the Board of Supervisors.

Supervisors failed to hold the series of public meetings, or to provide required 15-day public notice before its first consideration by the Board, as specified in Tama County Ordinance I.2, Section 4: Iowa Code section 331.305. Nor was there any notice of the Supervisors' intent to reaffirm the ordinance published in any newspapers of record, as required by Iowa Code section 618.14.

The only "notice" provided by the Board of Supervisors before they re-adopted the ordinance was an agenda posted in the County Administration Building in Toledo, 24 hours prior to the May 16 meeting.

The Tama County Zoning Ordinance was adopted twenty-four years ago, in 1998, when language regulating industrial wind projects was included in the master zoning ordinance.

The wind ordinance was later separated out from the master zoning ordinance, as the Tama County Zoning Ordinance VI.I Amendment Number 1, including the Tama County Wind Energy Conversion System (WECS) Ordinance was approved and adopted in 2010.

The legal action claims the Supervisors failed to comply with the adoption procedures set forth in Iowa Code Sections 335.6 and 331.305, and Tama County Ordinance I.2.

The lawsuit also claims the Board's compliance with the Iowa Code section 335.6 is mandatory, and a condition precedent to the Board's exercise of its legislative zoning power.

The lawsuit claims the Board's failure to comply with the adoption procedures including public notice and public hearing requirements set forth in the Code of Iowa and Tama County Ordinances, "renders its decision to reaffirm the Wind Energy Ordinance illegal and void, as it lacked the requisite authority to act."

Coalition calls for a moratorium on wind projects, changes to County ordinances regulating them

"Despite packing the Tama County Board of Supervisors meetings each week since April 25, with the largest total and sustained crowds to attend their meetings in 27 years, the Tama County Board of Supervisors still refuses to enact a moratorium or to update ordinances regulating any new industrial wind project approval, as requested by the Tama County Against Turbines' (TCAT) coalition, which includes more than 1,000 members," Winkelpleck said.

The coalition calls for many ordinance changes, including significantly greater distance and safer setbacks for any permitted wind turbines from the property lines of non-participating wind project landowners. They also want the County to require that the costs of decommissioning - or removing wind turbines - be addressed upfront with sufficient money to cover the cost of removing turbines be set aside in escrow and adjusted for inflation to cover the costs that can run more than $500,000 per turbine to remove it and restore the land to its original condition. The coalition also calls on the County to add requirements to reduce the harmful effects of shadow flicker triggered by turbines, and for stricter requirements to reduce the oppressive sound levels of wind turbines to help protect public health. The coalition calls for the County to ensure that proposed turbine locations are properly and precisely sited up front before any permits are issued by the County, or before any turbine sites are constructed, to avoid disrupting the county's new $6.6 million emergency communications system or any other communications signals. That includes requiring developers to fully and specifically disclose the exact total height of wind turbines with blades fully extended, and the make, model and nameplate capacity of each specific turbine as part of the required upfront application process.

"The current ordinance setbacks for turbine placement from structures is a bare minimum that means wind turbines can create danger zones on the property of landowners who have not signed easements with wind project developers," Arp said. "It's not right that wind turbines can be allowed to encroach on the property rights, and negatively impact the safety and property values of those who choose not to sign an easement," Arp said.

"Tama County's ordinances must be strengthened to better protect all Tama County residents from the noise pollution, shadow flicker, the flashing red lights at night that disrupt sleep for people and animals, and to ensure that they do not disrupt emergency communications systems, among the many other concerns taxpayers have about living near industrial wind turbines," Winkelpleck said.

Benton County doesn't allow industrial wind or solar projects on highly-productive farmland

Neighboring Benton County, Iowa, does not allow industrial wind turbines to be placed on ag farmland with a Corn Suitability Rating (CSR), which measures potential soil productivity, of 70 or higher. TCAT speakers pointed to Benton County's land use regulations as an example of how to update and enforce Tama county's ordinances to protect highly-productive farmland from being used for industrial purposes like wind turbines. On June 7, Benton County Supervisors swiftly rejected a proposal by a Canadian wind project developer who sought approval to build an industrial wind project in Benton County.

More information about TCAT is available on the group's Facebook group @Tama County Against Turbines.