Wind energy company warns of litigation if amended Floyd County ordinance is approved

By Bob Steenson, bsteenson@charlescitypress.com

An attorney representing one of the companies working on developing a commercial wind energy project in Floyd County has sent a letter to the Board of Supervisors and county attorney, advising that the company will take legal action if the county approves a new zoning ordinance that would effectively eliminate the chance of wind energy projects in the county.

The letter was mentioned at a Board of Supervisors meeting Monday and set as an agenda item for discussion at the next regular meeting, Monday, Oct. 7.

The proposed county wind energy zoning ordinance, which has been significantly amended, has passed its first two readings by 2-1 votes, and is scheduled for a third reading next week at a 6:30 p.m. meeting on Wednesday, Oct. 9. That third reading could be – but doesn’t have to be – the final reading for passage.

Samantha Norris, an attorney with BrownWinnick Law in Des Moines, wrote that the supervisors had passed Resolution No. 42-23 in November last year when the county started working on a revision of the county’s zoning ordinance regarding wind energy and battery storage.

That resolution, which was passed by all three supervisors, “states a purported goal of protecting landowners while still allowing for reasonable and responsible development of wind within Floyd County,” Norris wrote.

Based on the zoning ordinance that existed in 2021 when Invenergy LLC began developing its Marble Ridge Wind Energy project, and based on the later resolution, Invenergy “has invested well over $5 million in Floyd County,” she wrote.

Invenergy’s costs include conducting numerous studies, paying 86 individual Floyd County landowners who have signed voluntary easement agreements, and pursuing grid interconnection, including posting “a substantial amount of funds for interconnection security,” Norris wrote.

“The county’s Planning and Zoning Commission undertook a reasoned, methodical review and proposed a balanced ordinance under a unanimous 5-0 vote that largely met” the goals that had been set out in the supervisor’s resolution, she wrote.

However, amendments to the ordinance that were passed at meetings held Aug. 6 and Sept. 24 “fall far short of and, in fact, are contrary to Resolution #42-23’s goals and the recommendations of the Planning and Zoning Commission,” Norris wrote.

Although an Invenergy representative and the representative of NextEra Energy both said the amendments were “poison pills” that would kill any potential wind development in Floyd County, and Supervisor Chair Mark Kuhn said the amendments would kill any potential wind development, the amended ordinance was passed at its second reading by Supervisors Dennis Keifer and Jim Jorgensen, Norris wrote.

“It is clear that the amendments to the ordinance approved by Supervisors Jorgensen and Keifer at the meetings were a bad faith attempt to prevent any further wind development from occurring in Floyd County,” Norris wrote.

“Under Iowa law, the application of a new ordinance can be voided if the board acts in bad faith,” Norris wrote, citing Iowa case law.

“It appears that the Board is now trying to zone Marble Ridge out of the county using arbitrary requirements that make commercial wind development both economically infeasible and operationally impossible,” Norris wrote.

“Several of the amendments proposed and passed by Supervisors Jorgensen and Keifer are arbitrary and capricious with no relation to a legitimate government interest,” she wrote. “As one example, with respect to the 70-turbine cap within Floyd County, Supervisor Jorgensen even agreed in the September 3, 2024, meeting that the 70-turbine cap was an arbitrary number, stating that he wanted the cap because he believes Floyd County is already ‘energy positive.’

“His comment is contrary to long-standing state policy and also provides no connection between the arbitrary cap and any legitimate government interest,” Norris wrote.

“If the Board continues down this path and the current, amended ordinance is passed at the October 9, 2024, meeting, Marble Ridge may have no other choice but to enforce its rights, including but not limited to pursuing causes of action discussed in this letter,” Norris wrote.

“We hope that judicial intervention can be avoided through revisions to the proposed amendments that connect the new or revised zoning ordinances to legitimate government interests, restore the consensus ordinance unanimously approved by the Planning and Zoning Commission, and remove the artificial and arbitrary barriers to reasonable and responsible wind development, consistent with the Board’s resolution,” Norris wrote.

During a brief discussion whether the letter should be on next week’s agenda, Jorgensen suggested that discussion should be held in closed session.

Asked after the meeting if next week’s agenda would include a closed meeting discussion on the topic, Supervisor Chair Kuhn said he would not support a closed hearing.

The Iowa Open Meetings law allows a public meeting to be closed “To discuss strategy with counsel in matters that are presently in litigation or where litigation is imminent where its disclosure would be likely to prejudice or disadvantage the position of the governmental body in that litigation.”

The litigation must be in progress or “imminent,” not just likely or possible at some future date.