John Wendell Woods, Ronald Woods, C&W Farms and Woods Construction, Inc, James Richard Costello and City of Fairbank v. Fayette County Zoning Board of Adjustment, Catherine Miller as Fayette County Zoning Administrator, Dante Wind 6, L.L.C., Galileo Wind 1 L.L.C., Venus Wind 4 L.L.C., Mason Wind L.L.C., Optimum Renewables L.L.C., and Thomas G. Rourke and Kimberly K. Rourke ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-0090
Filed February 21, 2018
JOHN WENDELL WOODS, RONALD WOODS, C&W FARMS and WOODS
CONSTRUCTION, INC, JAMES RICHARD COSTELLO and CITY OF
FAIRBANK,
Plaintiffs-Appellees,
vs.
FAYETTE COUNTY ZONING BOARD OF ADJUSTMENT, CATHERINE MILLER
AS FAYETTE COUNTY ZONING ADMINISTRATOR, DANTE WIND 6, L.L.C.,
GALILEO WIND 1 L.L.C., VENUS WIND 4 L.L.C., MASON WIND L.L.C.,
OPTIMUM RENEWABLES L.L.C., and THOMAS G. ROURKE and KIMBERLY
K. ROURKE,
Defendants-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Fayette County, John Bauercamper,
Judge.
Defendants appeal the district court’s reversal of the decision of the Fayette
County Zoning Board of Adjustment to uphold the issuance of permits for the
construction of three wind turbines. AFFIRMED.
Alexander M. Johnson and Adam C. Van Dike of Brown, Winick, Graves,
Gross, Baskerville and Schoenebaum, P.L.C., Des Moines, for appellants Dante
Wind 6 L.L.C., Galileo Wind 1 L.L.C., Venus Wind 4 L.L.C., Mason Wind L.L.C.,
Optimum Renewables L.L.C., Thomas G. Rourke, and Kimberly K. Rourke.
2
James J. Burns of Miller, Pearson, Gloe, Burns, Beatty & Parrish, P.L.C.,
Decorah, for appellants Catherine Miller as Fayette County Zoning Administrator
and Fayette County Zoning Board of Adjustment.
Heather A. Prendergast, Carter J. Stevens, and David W. Hosack of
Roberts, Stevens & Prendergast, P.L.L.C., Waterloo, for appellee City of Fairbank.
Patrick B. Dillon of Dillon Law, P.C., Sumner, for appellees Ronald Woods,
John Woods, James Costello, C&W Farms, and Woods Construction, Inc.
Heard by Danilson, C.J., and Vaitheswaran and Bower, JJ.
3
VAITHESWARAN, Judge.
A zoning administrator granted applications for zoning compliance, which
allowed the construction of wind turbines on agricultural land. The board of
adjustment denied appeals from the decision. The district court, however,
concluded the zoning administrator acted illegally in granting the applications. We
must decide if the district court’s decision was correct.
I. Background Facts and Proceedings
The Fayette County Zoning Ordinance lists several “permitted uses” in
agriculturally-zoned districts, including use for “[e]lectrical and natural gas
transmission and regulating facilities.” The ordinance also authorizes “special use
permits” following notice and hearing:
Section 9. AG DISTRICT REGULATIONS (Agricultural Districts).
Statement of Intent. The AG District is intended and designed to
preserve agricultural resources and protect agricultural land from
encroachment of urban land uses.
A. Principal Permitted Uses. Only the use of structures or land
listed in this section shall be permitted in the AG District.
....
12. Electrical and natural gas transmission and
regulating facilities.
B. Special Use Permits. The following uses may be permitted
in the AG District subject to approval by the Board of
Adjustment after notice and public hearing. In its
determination upon the particular use at the location
requested, the Board shall consider all of the following
conditions [not relevant for purposes of this appeal]. . . .
Zoning Ordinance for the Unincorporated Area of Fayette County, Iowa, January
1973 (revised March 1976) (emphasis added).
Thomas and Kimberly Rourke granted easements to Dante Wind 6 L.L.C.,
Galileo Wind 1 L.L.C., Venus Wind 4 L.L.C., Mason Wind L.L.C., and Optimum
Renewables L.L.C. (collectively—including the Rourkes—”Optimum”) to construct
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three wind turbines on their agriculturally-zoned property. Optimum applied to the
Fayette County Board of Adjustment for special use permits to construct the
turbines. The Board denied the application.
When Optimum contested the denial, the Fayette County Zoning
Administrator requested a legal opinion from the county attorney. After examining
the permitted use language for “[e]lectrical and natural gas transmission and
regulating facilities,” the county attorney opined, “To the extent [wind turbines] can
be determined to transmit electrical power,” and “[i]n the absence of specific rules
or regulations regarding wind turbines, then no special use permit is called for or
required by the Fayette County Zoning Ordinances and . . . placement of them in
the Ag District would be legal without a special use permit.” The zoning
administrator thereafter approved Optimum’s applications for zoning compliance.
The City of Fairbank (“City”) within Fayette County as well as Fairbank
residents or businesses Ron Woods, John Woods, James Costello, C&W Farms,
and Woods Construction (collectively, “Woods”) appealed the approval of
Optimum’s applications. They expressed concern that construction of the wind
turbines would disrupt their use and enjoyment of their land and would diminish
the value of the land in and around the City. After considering arguments from all
sides, the Board voted to deny the appeals.
The City and Woods petitioned the district court for writs of certiorari. The
district court held an evidentiary hearing at which a law professor from the West
Virginia University College of Law testified to the meaning of terms in the
ordinance, the zoning administrator testified about her decision, and the City mayor
5
testified to who was present at the hearing before the Board and certain
procedures used by the Board.
Following the hearing, the district court declared the approvals of the
applications for zoning compliance “illegal and void” and sustained the writs. In a
posttrial ruling, the court remanded the applications “to the Fayette County Zoning
Board of Adjustment and the Fayette County Zoning Administrator to take all
actions required by law to implement the ruling of the district court declaring these
permits void and bring the offenders into compliance.” The court stated, “Such
actions should include the removal of all structures which were erected without
valid permits as determined by the court.” Optimum and the Board appealed.
II. Analysis
The district court framed the core question as follows:
All the issues in this case center on the interpretation of the
language of the zoning ordinance, in order to determine whether or
not the zoning administrator and the board of adjustment have
correctly interpreted and applied the ordinance to the uncontroverted
facts of this case. The question is whether or not a wind turbine that
produces electricity is or is not an electrical transmission and
regulating facility.
The court answered the question as follows:
The petitioner’s argument that electrical transmission facilities are
limited to electrical power grid apparatus such as poles, lines, and
other items used to move electrical power from the source of its
production to the end users of electric current to light and power their
homes, plants, businesses, etc. is persuasive, based upon the
ordinary dictionary usage of these terms, together with the industry
and government uses of those terms cited by the petitioners.
On appeal, Optimum argues the district court (1) erred “by failing to limit its
review to whether the board’s decision was supported by substantial evidence”
and (2) “improperly considered additional evidence because only questions arising
6
upon the existing record were presented for review.” The Board argues its findings
“were supported by the evidence” and it “applied the proper rule of law.”
We begin with our scope of review. As Optimum asserts, a board’s fact
findings are reviewed for substantial evidence. Bontrager Auto Serv., Inc. v. Iowa
City Bd. of Adjustment, 748 N.W.2d 483, 495 (Iowa 2008). But neither the zoning
administrator nor the board made fact findings and, in any event, the material
facts—the construction of three wind turbines on agriculturally zoned land—were
undisputed. The substantial evidence standard of review is not implicated.
The question before the zoning administrator, the Board, and the district
court involved an interpretation of the zoning ordinance. “Although we give
deference to the board of adjustment’s interpretation of its city’s zoning ordinances,
final construction and interpretation of zoning ordinances is a question of law for
us to decide.” Lauridsen v. City of Okoboji Bd. of Adjustment, 554 N.W.2d 541,
543 (Iowa 1996). Our review is for errors of law. Ackman v. Bd. of Adjustment for
Black Hawk Cty., 596 N.W.2d 96, 100 (Iowa 1999).
This brings us to the record for review. By statute, a challenge to a decision
of a county board of adjustment is tried de novo in the district court. Iowa Code §
335.21 (2015). The court “may take evidence” if “testimony is necessary for the
proper disposition of the matter.” Testimony is necessary “[o]nly when the illegality
does not appear in the record made before the board,” as for example, a conflict
of interest. Bontrager, 748 N.W.2d at 494.
Here, the illegality—a claimed misinterpretation of the zoning ordinance—
appeared in the record before the board. The county attorney’s opinion letter on
which the board’s decision was predicated was part of the “return on writ of
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certiorari.” The Iowa Environmental Council also argued in favor of the zoning
administrator’s decision. These opinions were discussed at the hearing before the
board of adjustment, as were contrary views about the meaning of the ordinance.
A transcription of the hearing was included with the writ.
The record before the board was sufficient to resolve the legality of the
board’s interpretation of the ordinance, a question that was exclusively within the
court’s purview. See Lauridsen, 554 N.W.2d at 543. No additional record was
necessary for proper disposition of the matter. The West Virginia University law
professor’s testimony was particularly problematic because, as Optimum points
out, he “improperly sought to advise the court on the proper interpretation of the
underlying zoning ordinance.” The remaining witnesses who testified before the
district court also added little if anything that was not already in the record. The
zoning administrator’s testimony was largely a rehash of the duly admitted records.
As for the mayor’s testimony, his summary of who was present at the board
meeting and the procedures used by the board were apparent in the transcript of
board proceedings.
We conclude the district court erred in taking additional evidence on the only
question before it, “whether or not a wind turbine that produces electricity is or is
not an electrical transmission and regulating facility.” We will limit our review to
the records included in the return of the writ of certiorari.1
1
Even if we were to consider the evidentiary record created in the district court, we would
reach the same conclusion.
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We turn to the district court’s interpretation of the ordinance. “In the
absence of a legislative definition, we strive to give words their ordinary meaning.”
Simon Seeding & Sod, Inc. v. Dubuque Human Rights Comm’n, 895 N.W.2d 446,
461 (Iowa 2017); Kordick Plumbing & Heating Co. v. Sarcone, 190 N.W.2d 115,
117 (Iowa 1971) (“Generally speaking, ordinances promulgated pursuant to
authority delegated to a local governing body are extensions of state statutes and
are to be construed as statutes . . . .”). “The ordinance must be read as a whole,
and each section thereof given consideration so as to give the ordinance its natural
and intended meaning.” Kordick, 190 N.W.2d at 117-18.
It is undisputed wind turbines “generate” electricity. See Merriam-Webster’s
Collegiate Dictionary 945 (3rd ed. 2002) (defining “generate” as “to bring into
existence” and “to originate by a vital, chemical, or physical process” such as
“generate electricity”). The question is whether they “transmit” and “regulate”
electricity within the meaning of the ordinance. The ordinance does not define
those terms. Looking to the ordinary meaning, “transmit” is defined as “to send or
convey from one person or place to another” and “to cause or allow to spread.”
Merriam-Webster’s Collegiate Dictionary 2429; see also Black’s Law Dictionary
1505 (7th ed. 1999) (defining “transmit” as “to send or transfer (a thing) from one
person or place to another”). The dictionary defines “regulate” as “to bring order,
method, or uniformity to” and “to fix or adjust the time, amount, degree, or rate of.”
Merriam-Webster’s Collegiate Dictionary 1913. Based on the “ordinary dictionary
usage of these terms,” the district court found that the wind turbines would not fall
within the permitted use language. On this record, we agree.
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The ordinance provision begins with the sentence, “Only the use of
structures or land listed in this section shall be permitted in the AG District.” The
ordinance goes on to provide a detailed listing of permitted uses, including
dwellings, places of worship, schools, recreational areas, airports, cemeteries,
kennels, nurseries, and water supply and sewage treatment facilities. All are
commonly understood structures or facilities. Last but not least are “[e]lectrical
and natural gas transmission and regulating facilities.” As commonly understood,
this language would not encompass wind turbines. Although the Iowa
Environmental Council cited industry definitions of these systems and cogently
argued the systems also transmitted and regulated electricity, none of the wind
turbine companies produced evidence at any stage of the proceedings on the
transmission and regulation capacities of their systems. We simply do not know
whether the three turbines would have comported with industry specifications. Cf.
Hamby v. Bd. of Zoning Appeals of Area Plan Comm’n of Warrick Cty., 932 N.E.2d
1251, 1255 (Ind. Ct. App. 2010) (acknowledging homes traditionally received
electricity from a power company via a power plant, but stating the court would not
construe terminology within an ordinance to prevent the implementation of new
technologies and affirming the grant of a variance for the construction of a
residential wind turbine as an accessory use). In the absence of a more
comprehensive record on the nature of the three wind turbines, and accepting the
ordinary meaning of the terms “transmit” and “regulate,” we conclude the district
court did not err in excluding wind turbines from “electrical transmission and
regulating facilities.” We affirm the sustention of the writ of certiorari.
AFFIRMED.