Iowa Appeals Court rules against Fairbank wind farm

Source: By TIM JAMISON, The Courier • Posted: Tuesday, February 27, 2018

FAIRBANK — The Iowa Court of Appeals dealt a blow Wednesday to three wind turbines built just east of Fairbank.

The appeals court upheld a Fayette County District Court rulingthat Mason Wind and Optimum Renewables built the wind energy towers in violation of the county zoning ordinance.

The turbine developers, which completed the three 445-foot wind towers with an estimated cost of $11 million while the appeals were still pending, now face a court ruling to remove them.
Surrounding property owners and the city of Fairbank filed a lawsuit in late 2015 after voicing concerns the turbines near the Flint Hills Resources ethanol plant would hurt their quality of life and lower property values.
But the issue before the court centered around whether the county Board of Adjustment and zoning administrator correctly interpreted the county’s zoning ordinance when issuing approvals for the project.

County officials had concluded the wind turbines were “electrical transmission and regulating” facilities that did not require a special permit approved by the Board of Adjustment.

District Court Judge John Bauercamper in late 2016 ruled the turbines were actually electrical generating devices that did require approval from the Board of Adjustment.

Mason Wind and Optimum Renewables challenged the interpretation to the Court of Appeals, which agreed with Bauercamper.

“The question is whether or not a wind turbine that produces electricity is or is not an electrical transmission and regulation facility,” the ruling states. “… As commonly understood, this language would not encompass wind turbines.”

The protracted legal battle prompted Fayette County to amend its zoning ordinance to more clearly define the process for locating wind turbines.

The new ordinance, among other things, requires any commercial wind energy project to get approval from the Board of Supervisors; to be at least three times the tower height or 1,500 feet from any occupied building; and does not allow construction within one mile of an incorporated city without that’s city’s written permission.

The Courier reached out to attorneys on both sides of the case but did not get a response Thursday.