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‘Second opinion’ attorney recommends tabling Floyd County wind energy ordinance

By Bob Steenson, bsteenson@charlescitypress.com

An attorney previously hired by a divided Floyd County Board of Supervisors urged the board at its meeting Monday morning, Oct. 28, to table final action on a proposed commercial wind energy ordinance that is scheduled to be discussed at a meeting Tuesday evening, then negotiate with the company proposing to build a wind project.

Or else, he said, the board could go ahead and pass the final reading of the ordinance Tuesday evening, but it should still discuss potential agreements with the wind energy company after the fact.

Thomas Reavely, an attorney from Des Moines who has represented people and organizations in many commercial wind energy cases, was hired last Thursday, Oct. 24, in a 2-1 vote by Supervisors Dennis Keifer and Jim Jorgensen to give a second opinion on the potential impact in Floyd County of a recent Worth County District Court decision that overturned that county’s wind ordinance.

Reavely said he dictated an opinion, but he didn’t have it typed because he didn’t want to produce it in an open meeting, arguing instead that the matter should be discussed with the supervisors in a closed session.

The Iowa Open Meetings law includes an exemption “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 government body in that litigation.”

Supervisor Chair Mark Kuhn, who had voted against hiring Reavely, and who has been on the losing end of many 2-1 votes regarding the proposed wind energy ordinance, said the supervisors had already received an opinion from County Attorney Todd Prichard that litigation was “likely, but not imminent,” and did not meet the Open Meetings Law exemption standard to close a meeting to the public.

In any case, potentially closing a meeting to the public has to be listed on the agenda, and that was not the case for Monday morning’s board meeting, Kuhn said.

Keifer and Jorgensen approved hiring Reavely for his opinion at a special meeting last Thursday, after having received an opinion from Prichard at a meeting Oct. 14 that said, “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.”

In that case, the Worth County District Court 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.

“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 supervisors took a break from discussing the agenda item regarding Reavely’s opinion for awhile, then came back to it later in the meeting.

Kuhn went through a list of what he said were cases where Reavely represented persons or groups in litigation against wind energy companies, and meetings where Kuhn said Reavely had spoken in opposition to wind energy.

But Reavely said, “I think wind power is essential.”

“I am not anti-wind. What I am against is where they place them,” he said, adding that he has had clients who have had to move because of the noise or shadow flicker from wind turbines, or who have had the turbines effect their livestock.

“I’m very, very concerned about setbacks and about people being able to enjoy their home,” he said.

Reavely said the fact that the Worth County decision is recent and the judge in the case, District Court Judge Colleen Weiland, is respected by other judges, would likely mean that other judges would consider her decision if a similar case came up.

“I always like to try to sit down and see if there’s a compromise or resolution before you step off the cliff,” he said.

“So what I wanted to say in private, I’ll say it now, is that I do think that my recommendation would be to table that resolution tomorrow night. And I thought differently yesterday. But the more I thought about it, is to table that and see what the wind people say and see whether that can fit in anything you’re comfortable with,” Reavely said.

“If you’re not comfortable with it, then you end up just like Worth County. Worth County they didn’t get together, so they went to court. So that’s my recommendation,” he said.

The continuation of the third reading of the Floyd County commercial wind energy ordinance is set for 6:30 p.m. today (Tuesday, Oct. 29) in the Emergency Operations Center/Training Room in the atrium between the courthouse and the law enforcement center.

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