Board Properly Granted Approval for Wind Turbine Project

On January 21, 2021, the Iowa Court of Appeals issued a ruling considering whether a county zoning Board of Adjustment properly granted an application for a wind turbine project. Despite the Board misinterpreting which ordinances were applicable, the court affirmed that the Board did rely on the relevant ordinances and factors when granting the utility company’s request. Additionally, the court affirmed that the Board gave proper notice.

Background

Intending to build a fifty-two turbine wind farm, MidAmerican filed an “application for a variance” and a “special use permit & zoning certificate application” with Madison County. The county zoning ordinance limited the height of structures in agricultural districts to two and a half stories or thirty-five feet “except as provided in Section 14” of the ordinance. Because each wind turbine would be 494 feet tall, MidAmerican requested that the authorization allow it to exceed the height restriction.

At the start of a public hearing, the Board’s chairperson stated that as required by the county zoning ordinance, “a special use permit and variance granted by the Madison County Board of Adjustments is required for each wind generator in this request.” After three hours of public comment, one Board member moved to deny the request for a variance. The Board member believed MidAmerican did not meet all of the elements of unnecessary hardship required to grant a variance under section 17 of the ordinance.

In response, the Zoning Administrator stated section 14 granted the Board of Adjustment “the authority to issue variances to the height that’s approved by the Board of Adjustment.” Section 14(C)(1) of the ordinance lists several structures, including “necessary mechanical appurtenances,” which could exceed the height restriction if the Board grants approval. Wind turbines are not specifically mentioned in this section. After discussion of the Board’s power to grant variances, three of the five board members voted against the motion to deny the variance.

After some disagreement on whether the unnecessary hardship test was satisfied, the Board in a 3-2 vote approved the request for a variance and special use permit “to allow the location of 52 wind energy device locations, each up to 494 feet….” In the Board’s ruling titled “finding of facts and legal principles upon which the Board acts,” each member attached handwritten notes.

In their reasoning, one board member circled the “necessary mechanical appurtenances” language and underlined the “Conditional Uses” subchapter in section 14. She also underlined one of the elements required for a variance under section 17. The Chairperson likewise referenced section 17 for granting a variance. The third member voting in favor of the request simply stated that he believed the “regulations had been met.” The two members who voted against approving the application stated that MidAmerican did not meet the required unnecessary hardship factor for a variance under section 17.

A group of landowners in the area challenged the Board’s ruling. These plaintiffs alleged that the variance approval was illegal because wind turbine was not specifically listed in section 14(C)(1) nor did it qualify as a “necessary mechanical appurtenance.” The plaintiffs alleged that the Board granted the special use permit illegally as well because the Board did not consider the applicable section 14 factors for granting a special use permit. Finally, the plaintiffs claimed the Board did not have the authority to grant a variance because it did not consider section 17 setting forth three elements which establish unnecessary hardship, a necessary requirement to grant a variance.

District Court Decision

The district court found that the Board misunderstand the distinction between conditional use permits and variances and which rules applied to each. This was likely due to the use of the word “variance” on the application. The district court found that although a wind turbine did not fall within the definition of “necessary mechanical appurtenances,” the Board could grant a conditional use permit under section 14(E)(12). Section 14(F) requires a wide variety of conditions to be assessed before the Board can grant a conditional use permit. Based on the language of the ordinance, the court found that the Board did consider the conditional use permit factors in section 14 and the Board properly granted the application. The plaintiffs appealed.

Ordinance Interpretation

On appeal, the plaintiffs claimed that MidAmerican needed both a variance and a conditional use permit in order to exceed the height restriction. The court explained that the terms “special use” and “conditional use” can be used interchangeably. In fact, the county zoning ordinance uses those terms interchangeably. Both allow a board of adjustment to grant permits for predetermined exceptions to the zoning ordinances. These terms, however, differ from a variance. A variance allows an exception if a party can show undue hardship to use the property due to the zoning regulation. This is a higher standard to meet.

The zoning ordinance prohibits structures over thirty-five feet in agricultural districts except as provided in section 14(C)(1). However, the ordinance does not state that this is an exclusive list. Section 14(E)(12) allows the Board to grant a conditional use permit for any structure that is used by a public utility company for public utility purpose. The court affirmed that a wind turbine would fall under the definition of “any structure.” Additionally, MidAmerican is a utility company and the wind farm project was for a public purpose. Therefore, the court affirmed that MidAmerican was not required to obtain both a conditional use permit and a variance. 

Approval of a Conditional Use Permit

Alternatively, the plaintiffs claimed the Board did not grant a conditional use permit under section 14(C)(1) or, if it did grant a permit, did not make consider the relevant factors under section 14(F). The court ruled, however, that the Board’s expanded findings submitted to the district court demonstrated that the Board granted a variance using the conditional use permit standard of review rather than the elements set forth in section 17. The court noted the district court’s finding that “a majority of the [Board] concluded sufficient evidence was presented . . . for the issuance of a special use permit.” Additionally, there was substantial evidence to grant a permit under section 14(C)(1). Therefore, the court affirmed that the Board did sufficiently consider the special use permit application despite referencing non-applicable provisions.

Section 14 requires certain conditions be met regarding the surrounding area, infrastructure, intent of the ordinance, nuisance factors, comprehensive plan, and cumulative impact before the Board can grant a special use permit. The Board’s expanded findings stated it considered information regarding the “siting of the turbines, noise, shadow flicker, impact to property values, and the overall benefits and detriments of the project.” Therefore, the court affirmed that the Board properly granted a permit after considering the section 14 conditional use factors.

Adequacy of Notices

Finally, the plaintiffs claimed that the Board did not have jurisdiction because the notices for the variance were inadequate. The court stated that a claim regarding a board’s scope of authority must first be presented to the Board and then before the district court to preserve appellate review. Here, the variance was not necessary so the notice requirements do not apply. Additionally, Iowa Code sections 335.10 and 335.15 grant a Board of Adjustment the ability to grant special or conditional use permits. Therefore, because the notice included a request for a special use permit, the notices were adequate.