Divided Floyd County Board of Supervisors hires attorney for second opinion on wind ordinance

By Bob Steenson, bsteenson@charlescitypress.com

In another 2-1 vote, a majority of the Floyd County Board of Supervisors approved hiring an outside attorney to advise them on the potential relevance of a recent Worth County court decision regarding wind energy.

At a special board meeting Thursday afternoon, Supervisors Dennis Keifer and Jim Jorgensen approved hiring attorney Thomas Reavely of the Whitfield & Eddy Law firm of Des Moines for that second opinion, over the objection of Supervisor Chair Mark Kuhn and against the advice of County Attorney Todd Prichard.

The question is whether the current path that Floyd County is on regarding a commercial wind energy ordinance might end in a result similar to what happened in Worth County.

In that case, the Worth County District Court recently ruled that county had acted “in bad faith” and with “improper purpose” in passing a moratorium and then an ordinance that made a proposed wind energy project in that county not possible.

The result of that decision is the energy company, Invenergy, which is also trying to develop a commercial wind project in Floyd County, can proceed building its project in Worth County under older zoning rules that were in place before the new zoning ordinance was passed.

At the special meeting Thursday afternoon, Kuhn pushed back as to why Keifer had suggested hiring Reavely. Kuhn said his “simple online research” into the attorney showed that Reavely had been representing landowners fighting against wind energy projects and Kuhn was concerned Reavely might be biased.

Keifer said Madison County Supervisor Heather Stancil had heard about the Floyd County situation and had called him and suggested Reavely as someone who had been involved in wind energy.

Kuhn then asked Keifer if he was “aware you are taking the recommendation of an anti-wind advocate,” saying that Stancil has presented herself online as being against wind energy projects and was part of a 2-1 majority that passed a Madison County ordinance that in effect made wind energy development impossible in that county.

Keifer said he has “no personal knowledge” of any biases by Stancil or Reavely, and he “wouldn’t know him (Reavely) if he walked into the courthouse.”

“​​I’m not convinced he’s biased, but we’ll see what his opinion is,” Keifer said.

Jorgensen said Reavely could be questioned about his background and biases when he presents his opinion at the board meeting Monday, Oct. 28. That meeting might be called for a later time that day than its usual 9 a.m. to give Reavely time to attend in person.

Keifer and Jorgensen have been on the majority side of many 2-1 votes regarding amending the current proposed Floyd County commercial wind energy ordinance, increasing restrictions on how and where wind energy projects could be developed.

The two supervisors have said they are responding to the concerns of many rural residents regarding safety and health concerns about wind energy turbines.

Other Floyd County residents, including more than 80 who have signed voluntary agreements with Invenergy to have wind turbines located on their properties, have lobbied the board to approve an ordinance that would allow wind projects.

Representatives of two companies trying to develop Floyd County wind projects have said the current amendments would kill any chances of future commercial wind energy in the county.

An attorney from Invenergy has said that company might take legal action if the Floyd County ordinance is passed in its current form, as the company did in Worth County.

Floyd County Attorney Prichard had advised the Floyd County board at its regular meeting Oct. 14 that, “from my observations of the actions of the Floyd County Board of Supervisors, it is my legal opinion that Floyd County would very likely have a very similar or identical outcome in potential litigation as Worth County.”

“I strongly recommend that the Board of Supervisors amend the Wind Ordinance to provide reasonable regulation and avoid the cost of a long-term court battle that the county will most likely lose. The highly probable outcome of a loss in court will leave the county vulnerable to inadequate wind regulations,” Prichard wrote.

The special meeting Thursday afternoon was called so that a decision could be made regarding getting a second legal opinion before next week, when the continuation of the third (and possibly final) reading of the wind ordinance is scheduled for Tuesday evening, Oct. 29.

Kuhn said that in 16 years as a supervisor at different times in three decades he had never been part of a board “that completely rejected a written legal opinion of the Floyd County attorney, as my current colleagues are doing today.”

Both Keifer and Jorgensen said they just wanted another opinion, and would consider that opinion as well as Prichard’s.

At the special meeting, Prichard said it was prudent to get a second opinion on a matter with as many potential litigation consequences as this issue, but his choice of that attorney wouldn’t be Reavely, whose website says he “focuses on plaintiff litigation involving personal injury accidents, workers compensation claims, medical malpractice issues, will contests, business and shareholder disputes, securities litigation and FINRA security arbitration.”

“You could be potentially wading into a large liability for the county. You could be potentially looking at other lawsuits, from not just wind developers, but possibly the other landowners,” Prichard said.

“The first attorneys I would turn to are the attorneys that represented Worth County, because they can tell you from first-hand experience what the case involved, what the facts are,” he said.

Those attorneys, from Hopkins & Huebner P.C., with offices around Iowa, are possibly the attorneys that Floyd County’s own insurer will suggest if the county needs to be defended in wind energy lawsuits, Prichard said.

“I really don’t understand why we’re going out to this attorney with this skillset and not to a firm that’s actually involved in defending counties. That kind of boggles my mind,” Prichard said.

Kuhn said, “We shouldn’t be seeking a second opinion from a Des Moines law firm with a history of anti-wind representation, because the majority of the board doesn’t like the legal opinion of our own county attorney.”

Keifer responded, “I personally don’t think there’s anything wrong with getting a second opinion on something. You apparently don’t agree with the person that we want to get the second opinion from. But I think that’s a little premature, to be honest with you right now. You’re assuming a lot of things. We don’t know his opinion. Maybe it’s the same as Todd’s.”

After some more discussion, Jorgensen moved hiring Reavely “for a review of the ruling in the District Court case Worthwhile Wind LLC vs Worth County Board of Supervisors, and how the ruling may impact Floyd County if the Board of Supervisors approves the current proposed wind ordinance amendment set for consideration at the October 29 board meeting.”

The motion passed 2-1 with Kuhn voting against.