On March 26, an Iowa Court of Appeals ruled that the Poweshiek County Board of Supervisors acted legally in rezoning land for a proposed ethanol plant, paving the way for construction of the plant just south of Grinnell.

The plant comes from a decision in 2006 when the Poweshiek County Board of Supervisors rezoned 185 acres south of Grinnell from agricultural to industrial. This change would allow Big River Resources to build an ethanol plant.

After the Board decided to rezone the property and enter into an agreement with Big River for construction of the plant, residents nearby the proposed development site requested that the Board rezone their homes from agricultural to residential. The Board dismissed the claim, even though according to County zoning laws, “No building structure or parcel of land shall be used for manufacturing, fabricating, repairing, storing, cleaning, servicing of materials, products or goods, within 1000 feet of any lot line adjoining a residential district.” The plaintiffs’ homes are within 1000 feet of the proposed plant site.

The plaintiffs in the case, two couples who owned property near the proposed site of the plant, alleged that meetings related to the zoning decision were not appropriately advertised in accordance with the state’s open meetings laws and that requests to rezone their own property were unlawfully dismissed.

“They zoned it industrial and this is not an industrial area out here at all,” said Loretta Van Wyk, one of the plaintiffs in the case. “So we feel there has been spot zoning and they only zoned it industrial so that the ethanol plant could go in, not because it made sense to zone it industrial out here, but because they were doing it for one particular company.”
Vernon Van Wyk, another plaintiff, said that members of the Board had not fully weighed citizen concerns in the issue. “We had the opportunity [to voice concerns], but the Board of Supervisors, which is where this started, they weren’t listening,” Vernon Van Wyk said. “They were so hell-bent on getting this monstrosity into our community that they threw all caution to the wind.”

In the decision, the Court granted substantial deference to the County Board’s judgment, stating it would not overturn the decision unless there was “clear evidence” of impropriety. While the Court of Appeals acknowledged that the Board had not adhered to all provisions regarding public notice, it had acted in a way that substantially satisfied the intent of those provisions.

Richard Updegraff, a Des Moines attorney representing Big River in the case, without commenting on specifics of the case, said that the Court of Appeals’ decision was largely expected. “It was the County’s feeling and Big River’s feeling that the supervisors followed the right procedures to rezone and considered all relevant factors in the decision to rezone,” he said. “[The decision] was no surprise on our part.”

Karl Knudson, a Decorah lawyer representing the plaintiffs, filed a petition for further review in the Iowa Supreme Court. Knudson declined to comment on the petition but said, “I certainly do hope that the Supreme Court will grant further review and take a look at it.”

The Clerk of Courts Office said the petition has yet to be reviewed by the Court.

While the legal arguments involved in the Big River suit hinged on issues of zoning and state open meeting laws, resident concerns extended to broader fears about the potential impact of the plant. These concerns ranged from fears that water vapor emitted by the plant could freeze on the highway, making for treacherous driving conditions to worries that the 100-gallon plant’s water needs could lead to a local water shortage.

Ethanol, which is chiefly produced from corn in the Midwest, was once heralded as a boon to American energy needs, that could simultaneously reduce greenhouse gas emissions and the country’s reliance on foreign oil. Recently, though, the industry has come under attack for its hefty government subsidies and low energy content. Some critics contend that the fuel’s production—via sugar fermentation and then distillation—actually produces more net pollution than it saves as a substitute for fossil fuels.

The town of Grinnell draws roughly 1.3 million gallons of water daily from the Jordan Aquifer, the underground water reservoir which serves as the town’s water source. At current consumption rates, the City expects the aquifer to be depleted in ten to 50 years. According to a report by the Institute for Agriculture and Trade Policy, producing one gallon of ethanol requires, on average, four gallons of water. Based on national averages, the Big River plant would consume a little over 1 million gallons of water a day, close to doubling the town’s daily water consumption.

Earlier this year, conservation groups and residents in Eyota, Minn. sued to stop the construction of a local ethanol plant over concerns regarding the plant’s environmental impact, while earlier last month another plant in Oshkosh, Wis. was sued for violating the Clean Water Act.

“Maybe the next generation of nuisance lawsuits will involve ethanol plants. It’s the same type of issues,” said Roger McEowen, the Director of the Center for Agricultural Law and Taxation at Iowa State. “Potential contamination of groundwater is a concer noise is a concern and trucks coming in and out of a plant and the associated decline of adjacent property values.”

“We are seeing fewer docketed cases at the trial court level involving nuisance claims against livestock operations, but we’re starting to see them against ethanol plants and wind energy companies,” McEowen said. “So it’s the same type of issue, it’s just a different type of defendant.”

Grinnell City Manager Russ Behrens, who helped negotiate with Big River over the plant, said that while alternative locations were briefly considered, the current site had a number of advantages, including its proximity to a highway, easy access to the electrical grid and, most importantly, the ability to connect to the nearby Union Pacific railway.

Behrens primarily cited economic issues as the reason for the City’s permission for the plant’s construction. “Just trying to provide a market for farmers for their commodities was probably one of the driving forces,” said Behrens. Secondary to that would be the job creation directly related to the operation of the plant and the construction of the plant.” The City even offered Big River a property tax abatement as an additional incentive to locate nearby.

Before stumbling over the legal obstacles, Big River had made significant progress at the development site, including drilling a well and conducting a number of engineering feasibility studies and “grading” the land to ensure that it is flat and stable for both the plant and the extra railway.