Hunter v. Page Cnty.

653 F.Supp.3d 600

James HUNTER, Sheri Hunter, Bradley Hutchison, Katherine Hutchison, Susan Kelley,William McConnell, Cindy O'Hearn, Michael O'Hearn, Barbara Oliver,James Rine, Mary Rine, and Stephanie Sholes, Plaintiffs, v. PAGE COUNTY, IOWA; Board of Supervisors of Page County, Iowa; Alan Armstrong;Jacob Holmes; James King; Chuck Morris; and Carl Sonksen, Defendants,Shenandoah Hills Wind Project, LLC, Intervenor.

1:22-cv-00017

United States District Court, S.D. Iowa, Western Division

Signed January 31, 2023

Theodore F. Sporer, Sporer Law Firm, Des Moines, IA, Shawn Shearer, The Shearer Law Office, Des Moines, IA, for Plaintiffs.

Jason Michael Craig, Emily Kolbe, Maria Evelyne Brownell, Ahlers & Cooney PC, Des Moines, IA, for Defendants Iowa Page County, Board of Supervisors of Page County, Iowa.

Robert M. Livingston, Stuart Tinley Law Firm LLP, Council Bluffs, IA, for Defendant Jacob Holmes.

Brant Michael Leonard, Bret Alan Dublinske, Kristy Dahl Rogers, Fredrikson & Byron, P.A., Des Moines, IA, for Intervenor.

ORDER

ROBERT W. PRATT, Judge

Pending before the Court are Plaintiffs' Motion for Temporary Restraining Order (TRO), ECF No. 5; Motion for Reconsideration of the Court's Order granting Shenandoah Hills Wind Project, LLC (SHW)'s Motion to Intervene, and Motion for Reconsideration of the Court's Order denying Plaintiffs' Motion to Strike SHW's Resistance to TRO, ECF No. 25; Motion to Remand to State Court and/or In the Alternative, Abstain, Remand in Part & Stay, ECF No. 33; and Appeal of Magistrate Judge Decision granting leave for SHW to file a motion to dismiss, ECF No. 53.¹ Defendants filed a Motion to Dismiss for Lack of Subject-Matter Jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and Failure to State a Claim under Rule 12(b)(6). ECF No. 12. Defendant Holmes filed a Motion to Remand and Joinder in Plaintiffs' Motion to Remand. ECF No. 40. Defendants also filed a Notice and Consent to Remand. ECF No. 76. Intervenor filed a Motion to Dismiss for failure to state a claim under Rule 12(b)(6). ECF No. 54. Responsive briefs have been filed on the pending motions. On January 6, 2023, the Court heard oral argument on the Motions to Dismiss, ECF Nos. 12 and 54, and the Motions to Remand, ECF Nos. 33 and 40. The matter is fully submitted.

I. FACTUAL AND PROCEDURAL BACKGROUND

The public interest in developing clean, renewable energy is demonstrated by bipartisan state and federal policy goals. See ECF No. 54-1 at 3. "President Biden wants the nation's electricity to be 100 percent carbon-free by 2035, and many states and utilities plan to ramp up wind and solar power." David Gelles, The U.S. Will Need Thousands of Wind Farms. Will Small Towns Go Along?, N.Y. Times (Dec. 30, 2022), https://www.nytimes.com/2022/12/30/climate/wind-farm-renewable-energy-fight.html. Similarly, Iowa has an official policy "to encourage the development of alternate energy production facilities . . . to conserve [the State's] finite and expensive energy resources and to provide for their most efficient use." Iowa Code §§ 476.41; see also § 18B.1(3) (listing "clean, renewable, and efficient energy" as a smart principle of planning, zoning, and resource-management). While alternate-energy production is prioritized, Iowa balances that goal with maintaining community character, preserving agricultural land, and conserving its natural resources. See §§ 18B.1(7)-(9). That said, the advancement of wind energy as an alternate-energy source is met by strong opposition in some rural communities concerned about the impact of wind-energy systems on their health, property values, and overall quality of life. E.g., Mathis v. Palo Alto Cnty. Bd. of Supervisors, 927 N.W.2d 191 (Iowa 2019).

In 2019, Page County, Iowa's Board of Supervisors enacted the Wind Energy Conversion Systems (WECS) on Property Located in the Unincorporated Areas of Page County Ordinance ("Wind Ordinance"). WECS are windmill-like structures that include "[a]ll necessary devices that together convert wind energy into electricity, including Wind Turbines, electrical components, transformers, feeder lines, substation and meteorological towers." ECF No. 1-11 at 33. The purpose of the Wind Ordinance is "to promote the public health, safety, comfort and general welfare, while facilitating economic opportunities, for rural residents and promoting a goal of increased energy production from renewable energy sources." Id. at 31. The Wind Ordinance "serve[s] to establish guidelines for the siting, construction and operation of [WECS] which generate electricity." Id. Representatives from Invenergy,² a third-party wind project developer, attended Board meetings prior to enactment of the Wind Ordinance and allegedly were involved in drafting the Wind Ordinance. ECF No. 1-2 at 17. Though Invenergy's level of involvement in drafting the Wind Ordinance is not clearly established in the record. The Board provided publication and notice of the proposed Wind Ordinance to the public on September 17, 2019, and a public reading was held on October 29, 2019. Id. at 15-16. Additional public readings were waived, and the Wind Ordinance was subsequently adopted by a majority vote. Id.; see also Iowa Code § 331.302(6)(a)-(b).

On March 7, 2022, Invenergy submitted a Commercial WECS (C-WECS) application to the Board, in accordance with the Wind Ordinance. ECF No. 1-11 at 8; ECF No. 1-2 at 143-56. Invenergy sought to build approximately thirty-one wind turbine sites spanning over 30,000 acres of land in rural Page County. ECF No. 1-2 at 146-47. On March 8, 2022, the Board publicly discussed Invenergy's C-WECS application. Id. at 28. Many community members had recently expressed their concerns about the proposed wind project. Id. at 25. Community members asked the Board to take time to address problems in the Wind Ordinance before approving Invenergy's C-WECS application. Id. at 28-29. As a result, on March 29, 2022, the Board decided to enact a 180-day moratorium on approval of all C-WECS construction permits through September 24, 2022. Id. at 30. The moratorium, Resolution #26-2022 Moratorium on C-WECS Construction Permits, concludes as follows:

NOW THEREFORE BE IT RESOLVED by the Board of Supervisors of Page County, Iowa, that Page County now imposes a moratorium, effective immediately and for a period of one-hundred eighty days, on C-WECS permit applications for the purposes of drafting and adopting any necessary and proper revisions to the existing C-WECS ordinance. This moratorium shall not affect any construction permits already filed with Page County as of the effective date of this resolution.

Id. at 157-56. Notably, "C-WECS permit applications" would be temporarily suspended, but the moratorium would not impact construction permits already filed on or before March 29, 2022. Id. The purpose of the moratorium was for the "drafting and adopting any necessary and proper revisions to the existing C-WECS ordinance." Id.

Months passed and the Board agreed to hire outside legal counsel to provide advice and answer questions about Invenergy's pending C-WECS application. Id. at 38. Then, on August 2, 2022, the Board heard additional concerns from the community, and it became clear that some project agreements had yet to be worked out. Id. at 40-41. In addition, at least one citizen questioned a specific Board member about a potential conflict of interest with Invenergy, which the Board member denied. Id. at 40. The Board determined by a majority vote that Invenergy sufficiently met the minimum C-WECS permit application requirements under the Wind Ordinance and thus a motion was carried to approve Invenergy's application. Id. at 41. On August 9, 2022, the C-WECS Moratorium was extended an additional 180 days through March 24, 2023. Id. at 42. The Court takes judicial notice that the Board also approved the August 2, 2022, meeting minutes on August 9, 2022. See Minutes, Page County Board of Supervisors, available at https://pagecounty.iowa.gov/offices/board-of-supervisors (last accessed Jan. 24, 2023).³ The Board posted its meeting minutes to the County's website and the minutes were available for public viewing. Id. These minutes provided community members with notice that approval of Invenergy's C-WECS application was a final decision. See Burroughs v. City of Davenport Zoning Bd. of Adjustment, 912 N.W.2d 473, 485-86 (Iowa 2018) (holding that approval of minutes containing board's decision and posting minutes to board's official website constitutes "filing of the decision in the office of the board").

Today, Invenergy possesses an approved C-WECS application—in other words, a C-WECS permit—but there are additional steps that must occur before the wind project may commence, including: (a) entering into road-use and decommissioning agreements with Defendants, (b) providing proof of any necessary Federal Aviation Administration and Federal Communications Commission permits, and (c) obtaining construction permits from the County to build each wind turbine.⁴ See ECF No. 1-2 at 121. A construction permit is issued by the Zoning Administrator and is different than a C-WECS permit. Id. at 121, 211-13. In addition, the purpose of a road-use agreement is to establish the expectations for road restoration and maintenance during and following C-WECS construction. Id. at 124, 127-32. The purpose of a decommissioning plan is to agree on coverage of the means and costs for dismantling and removing wind turbines 180 days after cessation of use. Id. at 124, 136-41. These agreements are necessary before the Zoning Administrator may issue construction permits. Also, if prior to construction "there are any material changes to the information provided," then Invenergy must submit a new C-WECS application for approval. Id. at 121. In that sense, Invenergy has a conditional C-WECS permit until all of the above steps are completed.

Approximately forty-one days after the Board's decision approving Invenergy's C-WECS...