Regional Planning Commission will again see Tradewind application

Gordon Woods
Posted 9/29/19

Sometimes confusing, occasionally convoluted and frequently open to interpretation, discussions about the pending Tradewind special use permit continued recently, during which all of those elements were still in play.

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Regional Planning Commission will again see Tradewind application


CLINTON — Sometimes confusing, occasionally convoluted and frequently open to interpretation, discussions about the pending Tradewind special use permit continued recently, during which all of those elements were still in play.

DeWitt County zoning administrator Angie Sarver felt the latest application for the Alta Farms II wind energy project was incomplete, and she has spelled out her reasons to county board members on several occasions.  But, during a special county land use meeting on September 26, attorney Jim Griffin argued successfully to advance Tradewind Energy’s special use application to the county’s Regional Planning Commission (RPC) for consideration.

Sarver covered her reasons again for why she felt the new special use permit application filed by Tradewind did not meet application requirements.  The county board ultimately denied Tradewind’s original application primarily because members felt it lacked a plan for future decommissioning of the project, issues over the aircraft warning lighting system and missing signatures from landowner lease agreements, among other concerns.

Tradewind’s attorney Jim Griffin argued September 26 the new application did satisfy the county’s requirements and felt items asked for by the zoning administrator were not part of the county’s wind energy ordinance under the special use permit requirements.

“The application contained all the materials required under the DeWitt County zoning ordinance,” Griffin told committee members.

Then, Griffin read from a portion of the county ordinance:

“The zoning administrator’s duties relating to special use applications are:  receiving applications for special use permits, referring the applications to the appropriate body, notifying affected property owners of the required public hearings, and publishing notice of the hearings.”

In another portion of the ordinance, Griffin read, “The zoning administrator shall refer applications to the planning commission.”

“These laws have not been followed as of yet,” Griffin said.  “And, we’re asking for them to be followed.”

Griffin said the zoning administrator had no authority to deny a special use application by refusing to process the application.

“Only the county board has the authority to grant or deny special use applications,” he said.

Griffin said the deficiencies cited in Tradewind’s special use application by the zoning administrator had no basis in the zoning ordinance to support the claim the application was incomplete.

Griffin argued that the county ordinance did not require approval of a decommissioning plan in advance of the county’s granting of the special use permit.

“That would be illogical,” Griffin said.  “And, it’s not supported by any language of the zoning ordinance.

Griffin said it would not make sense to require approval of a decommissioning plan for a project that did not yet exist.

He also argued that Tradewind had followed the county ordinance with regard to the aircraft warning lighting system as it was submitted in the application.

The fee paid by Tradewind for the special use permit would $117,758.58.

“We request the county follow its own zoning ordinances, accept the application fee, and schedule the application for consideration by the RPC and the ZBA,” Griffin said.

As in earlier meetings, the use of the word “pursue” in the county’s ordinance language caused some ambiguity among committee members, particularly committee chairman Terry Ferguson.

The ordinance requires the project developer to “pursue” an aircraft warning lighting system of the type the county asks for.

Ferguson’s interpretation of the word meant Tradewind would already have applied to the Federal Aviation Administration (FAA) for the system.

The county is asking Tradewind to use an aircraft lighting warning system that is activated only when aircraft are within a preset range.  The rest of the time, the lights would be off.

Griffin said the county reserved the right to determine which lighting system is most effective.  The FAA must then approve the county’s choice.

Tradewind has been in contact with the FAA to determine the type of lighting system the FAA would be likely to approve.

“But, of course, we need, under your ordinance, to get approval from the county board a determination that this is the most effective system,” Griffin said.

He said, in that sense, Tradewind had “pursued” a lighting system they believe would be the most effective to meet the county’s requirement.

This was a point of contention between Tradewind and Ferguson.  Ferguson felt the county’s approval of the aircraft lighting system should come before granting of the special use permit.  Griffin felt it was part of the application approval process.

“In my mind, I’m determining that this is something where you should have come to the county board and asked for approval of a company and then make the application to the FAA utilizing that as a precursor to the application for the special use permit,” Ferguson said.

Griffin disagreed, telling land use members approval of the application as a whole was the county board’s responsibility.

“So, the only way that the county board gets to make that decision is if the application is processed,” Griffin said.

Land use member and board vice chairman Camille Redman asked board member Lance Reece to explain why the word “pursue” became part of the portion of the ordinance pertaining to the aircraft lighting system.

Reece said it was not possible for the county to require a particular lighting system in the ordinance language because the final decision on the system rests with the federal government.  So, they settled on the word “pursue.”  He said the main purpose of the lighting portion of the ordinance was to address an issue non-participating landowners had with warning lights being on at night even when aircraft were not present.

Reece said when the ordinance was written, it was not known which lighting systems might be available for the proposed project.  He felt too much attention was being paid to one word in the ordinance.

Griffin said Tradewind had researched aircraft warning lighting companies and selected the one they felt would best suit the project. 

“And, we have included that in our application,” he said.  “We have “pursued” this as far as we can without the county board blessing our provider.”

Finally, the issue of missing signatures that existed with the original application has continued with the new application.

Zoning administrator Angie Sarver reported that five signatures were missing from lease agreements with the first application.  Six signatures were missing with the new application.  She said she requires both signatures when the permit applicant and the landowner are different.

“I do it in every one of my processes,” Sarver said.

However, even Ferguson conceded that leaseholders’ agreements gave the applicants for the permit signatory authority, which would require only one signature.

“So, that’s really sort of a moot point,” Ferguson said.

Redman repeated a position she voiced at a previous meeting that Sarver had fulfilled the requirements of zoning administrator, and the application should advance to the RPC.

Committee member Melonie Tilley defended Sarver’s position.

“If she felt the application was incomplete, why would she send it,” Tilley asked.

Griffin said, under the zoning ordinance, it was not the zoning administrator’s responsibility to make that decision.

“It’s very clear, it is the zoning administrator’s job to send it on.”

In a brief statement to the land use committee, opponent of the Alta Farms II project, Andrea Rhoades, said she agreed Tradewind’s application was incomplete.  She felt Tradewind was receiving special treatment not afforded other special use permit applicants.

In the end, the committee approved a compromise of sorts by voting 3-2 to send the application on to the RPC with a letter detailing concerns of the zoning administrator and some committee members.

The Regional Planning Commission voted in March to not recommend the original Tradewind application.  The Zoning Board of Appeals followed suit by voting likewise in April.