Carbon pipeline ordinance approved by planning and zoning commission

The Montgomery County Planning and Zoning Commission has moved forward with a new carbon pipeline ordinance.
The commission met Dec. 29 to discuss and approve the new ordinance that was drafted through the Ahlers & Cooney law firm out of Des Moines. The new ordinance would put restrictions in place on the proposed Summit Carbon pipeline project, yet to be approved by the Iowa Utilities Board.
The commission held a public hearing on the new ordinance at the meeting. Resident Jan Norris, who would have the pipeline go between her two farms, expressed her appreciation at the new draft being created.
“I am grateful Montgomery County engaged a firm with this expertise and deferred to their advice,” Norris said. “The City of Shenandoah passed a resolution opposing the pipeline and is pursuing an ordinance also. Page County and Fremont County are looking into ordinances as well.”
Tim Whipple, who helped draft the new ordinance, said it was made to mesh with the county’s existing comprehensive plan.
“It may bear some similarities with some of the ordinances that others have produced but this complies with what the county needs to comply with in terms of the comprehensive plan,” Whipple said.
The commission was presented two versions, a red-line draft and an updated draft. Whipple said the intent of the ordinance was to comply with federal and state laws and allow the county to do as much as the county was allowed to do under federal and state law. The basic framework of the updated draft was still the same as the red line draft.
“It still requires the same types of permits from the same types of groups, it still contains setbacks, and it still has an annual fee to help fund your emergency management agency,” advised Whipple. “There is an annual fee and an application fee. The application fee can be whatever the county needs to set to cover the time of the staff, and are within your discretion.  With the annual fee, the emergency response teams will likely incur some additional expenses for training and equipment. You don’t know what those are sitting here today, so the ordinance uses the same per-mile basis that the Office of Pipeline Safety uses to regulate.”
Funds can be used for potential new vehicles, safety apparatus, or training, and the language, Whipple said, stated the funds would be directly put towards that purpose.
Planning and Zoning Board Chairman Bryant Amos said after reviewing the draft, he felt the ordinance was drafted well enough to pass on to the Montgomery County Board of Supervisors for review.
Commissioner Randy Pendleton shared his sentiments on the ordinance and felt it was definitely a good starting point, and that while he had no personal issue with the carbon pipeline project itself, it needed some regulations.
“I farm, and I sell 70% of my corn to an ethanol plant. My truck is running on E-85, and it’s going to benefit me for ethanol plants to do well. The ordinance says the importance of farming in the county cannot be overstated. If ethanol plants don’t make a go of it, the farm economy will crumble in a heartbeat. That being said, I don’t think the pipelines should be able to come into our county, go anywhere they want, and go right next to somebody’s house. There needs to be some stipulations and setbacks.”
Pendleton added once the ordinance got passed by the supervisors, it would quickly be challenged in court, and that would be the starting point.
Commissioner Vicky Rossander asked Whipple for comment in regards to concerns county residents had stated about passing an ordinance that would immediately be challenged in court.
Whipple said it was their view that federal law and Iowa law allows a place for zoning and setbacks, and the view of all three of the pipeline companies was that it didn’t.
“Whether or not it’s a good idea to adopt an ordinance that another party may challenge, it’s really a policy decision by the board. As your lawyers, we are trying to make this as strong as possible, so that if it is challenged, it can make it out of court still standing,” explained Whipple. “There are no guarantees it will be held up or struck down. Reasoned arguments and briefs will all be made to a federal judge, that’s the way our system works. It’s also helpful to point out that the county has insurance coverage that will go towards expenses, and the county is not going to be sued for damages. It’s a question about whether you have the authority to take the action as a county. The liability is attorneys’ fees and court costs.”
Whipple said they are already making the arguments about who has the authority to do what in the Shelby County and Story County cases, and the same arguments would likely be made in regard to the county’s proposed ordinance.
Rossander agreed that any ordinance the county had could potentially be challenged in court, and if those fears were followed, no ordinances would ever get passed.
Amos said he felt they had progressed to the stage where it was time to follow legal advice.
“We are not legal scholars. We set a guideline we would like to see set, and at that point, you have to turn it to legal. You may be sued, or you may not be sued,” commented Amos.
Whipple also pointed out that whether or not the county adopted a dedicated pipeline ordinance with specific setbacks for that type of land use, it remained the case that the way the zoning ordinance was constructed, the county still had an industrial-use pipeline project proposing to go through agricultural areas which weren’t zoned to allow it.
“Whether or not you adopt this ordinance, unless the court strikes down all local zoning ordinances as being pre-empted, the board of adjustment may find it has to decide, without any guidance from the supervisors, what to do about a permit application. You can’t just put an industrial use pipeline project in an agriculture-zoned area. That’s how zoning works across the whole country,” Whipple said.
Rossander made it clear that the planning and zoning commission wasn’t taking a stand and saying the project shouldn’t come through the county, it was merely putting an ordinance in place that protected people if it did.
The commission approved the revised ordinance as presented, pending completion of a report.
“According to Iowa Code, you have to make a report on your recommendations. With an issue like this that’s high-profile, I’d like some time to work with zoning administrator Barry Byers to make sure we have a thorough report that summarizes the findings, and then the commission can meet one more time to approve the report once it’s drafted,” Whipple stated.
The date and time for the meeting to approve the report has yet to be determined.

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