HomeMy WebLinkAboutSTATEMENT FROM SIERRA CLUB 47
STATEMENT OF SIERRA CLUB
CONCERNING
REZONING OF LAND FOR ELK RUN ENERGY
This is a joint statement by the Cedar Prairie Group
of the Sierra Club and the Iowa Chapter of the Sierra Club.
The Cedar Prairie Group of the Sierra Club has members in
Black Hawk, Bremer, Butler, Grundy, Chickasaw, and Hardin
Counties. The Iowa Chapter of the Sierra Club has
approximately 6, 000 members residing across the state of
Iowa, including members in the Cedar Prairie Group.
STATE REQUIREMENTS FOR REZONING
Pursuant to Iowa Code § 414 . 3, zoning decisions must
be made in accordance with a comprehensive plan and
designed to preserve the availability of agricultural land;
to consider the protection of soil from wind and water
erosion; to encourage efficient urban development patterns;
to lessen congestion in the street; to secure safety from
fire, flood, panic, and other dangers; to promote health
and the general welfare; to provide adequate light and air;
to prevent the overcrowding of land; to avoid undue
concentration of population; to promote the conservation of
energy resources; to promote reasonable access to solar
energy; and to facilitate the adequate. provision of
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transportation, water, sewerage, schools, parks, and other
public requirements .
In addition, that Iowa Code section states that zoning
decisions must be made with reasonable consideration as to
the changing character of the area of the district and the
peculiar suitability of such area for particular uses, and
with a view to conserving the value of buildings and
encouraging the most appropriate use of land throughout
such city.
PROCEDURAL REQUIREMENTS
In the case of Sutton v. City Council of Dubuque, 729
N.W. 2d 796 (Iowa 2006) , the Iowa Supreme Court held that a
rezoning proceeding is a quasi-judicial process. That means
that the decision by the Council must be based on
substantial evidence; the applicant (Elk Run) has the
burden of proof to show that the proposed rezoning
satisfies the statutory requirements discussed above; and
there must be a written decision of the Council justifying
its decision.
STATUTORY CRITERIA APPLIED TO THIS CASE
1 . Conformity With Comprehensive Plan
The rezoning in this case cannot possibly be in
conformance with the City' s comprehensive plan because the
land being rezoned has not been in the city. The property
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is being annexed contemporaneously with the rezoning, at
the request of Elk Run. Even if, as argued by the City
Planning Department, the area in the current city
boundaries closest to the property to be rezoned is
designated as industrial in the land use plan, that does
not make this property industrial . The maximum extent of
that argument is that perhaps, if the property were in the
city, it might be designated as industrial in the
comprehensive plan.
But even that argument is insufficient. A
comprehensive plan cannot be changed just to satisfy the
desires of one property owner, i . e. , Elk Run. The Iowa
Supreme Court, in Wolf v. City of Ely, 493 N .W. 2d 846 (Iowa
1992) , said that a comprehensive plan is required to
prevent "piecemeal and haphazard" decisions. It is an
integrated product of a rational process . Even if the
City' s comprehensive plan were changed to accommodate the
Elk run project, the plan would not be an integrated
product of a rational process, but would be a piecemeal and
haphazard process designed for the benefit of a single
landowner. So a rezoning of the land to industrial would
not be valid because it would be based on an improper
comprehensive plan.
2 . Preserving Agricultural Land
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All of the land sought to be rezoned is agricultural
in nature . The actual amount of land to be purchased by Elk
Run is 494 acres, all of it agricultural . The rezoning
request applies to 260 . 36 acres, but the effect of the
rezoning request is to take the entire 494 acres out of
agricultural use, because if not for the rezoning request,
Elk Run would not have purchased the entire 494 acres .
So the proposed rezoning violates the state statute
because it does not preserve agricultural land, but rather,
destroys it .
The City Planning Department argues that the Land
Evaluation and Site Assessment (LESA) score is 174 out of
300 and that this score represents a low agricultural
value. We disagree with that assessment, but it is still
the fact that the land is being actively farmed and is
agricultural land which the state law requires to be
protected.
The corn suitability rating (CSR) for the land is in
the mid-70' s . The CSR evaluates the productivity of
cropland on a scale of 1-100 . So a CSR in the 70' s
indicates good, productive farmland. This is a score based
on soil type and scientific conclusions from that soil type
and other factors .
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The LESA score, on the other hand, is determined by
working through a score sheet that is subjective and can be
manipulated. A sample LESA score sheet is attached to this
statement so the Council can see what is involved. Unless
the Council reviews and analyzes the LESA score sheet for
this property, the LESA score should not be relied upon.
3 . Protect Soil From Wind and Erosion
Although Elk Run proposes in its site plan for the
project to make efforts to prevent erosion, this plan
appears to be simply an attempt to make the project look
good.
4 . Efficient Urban Development Patterns
It is obvious at the outset that an annexation of land
to the City solely for the benefit of one entity and then
to rezone the area, again for the purpose of benefiting
that same entity, with the annexed and rezoned area
contiguous to the existing city boundaries only by a
railroad right-of-way is not an example of an efficient
urban development pattern.
And a more detailed structured examination of the facts
just verifies that initial judgment . Another term for
efficient urban development patterns is smart growth. Land
use planners have established ten principles of smart
growth. See, Getting to Smart Growth, International
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City/County Management Association. Following are these
principles discussed in the context of the Elk Run rezoning
request :
1 . Mix land uses . The essence of this principle is to
have efficient communities that allow people to
live, work and obtain services without having to
travel great distances. Therefore, it is imperative
that the mixed uses must be compatible and
complimentary. In this case, there has been no
effort to examine whether the Elk Run project
complies with this principle. It is certainly clear
that the project is incompatible with the
agricultural nature of the area, and with the
residential uses of the people who live in the
area, especially those in the unincorporated area
of Dewar. The proposed power plant does not benefit
the people or existing uses in the area as the
principle of mixed uses would require.
2 . Take advantage of compact building design. Rather
than compact building design, the Elk Run facility
will be a sprawling complex of buildings and
support facilities, with additional land taken up
by attempts to put a more acceptable face on the
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project. The project certainly does not make
efficient use of space and is not compact .
3 . Create a range of housing opportunities and
choices . Rather than creating housing opportunities
and choices, the Elk Run project will impose an
industrial use on residents who already live in the
area . And the project will affect not only
residents in the immediate area, but the visual
effects of a monstrous industrial facility will be
felt by people living in an even larger radius from
the plant . In addition, the residents in the wider
area will suffer the side effects of rail transport
of coal, truck traffic hauling coal combustion
residue from the site and chemicals to the site.
This will increase congestion and affect other uses
along the path of the traffic congestion. This will
make the residences in the area less desirable and
could lead to blight. This certainly does not
create a range of housing opportunities and
choices .
4 . Create walkable neighborhoods. This rezoning has
nothing to do with walkable neighborhoods . Because
it is a classic example of urban sprawl, it has
nothing to do with this concept .
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5 . Foster distinctive, attractive communities with a
strong sense of place. The Elk Run project is not a
part of the community. It is a project unto itself,
annexed into Waterloo only by virtue of the
thinnest of threads, a railroad right-of-way. It
does not provide any sense of being part of
Waterloo.
6. Preserve open space, farmland, natural beauty, and
critical environmental issues . As previously
explained, the Elk Run project does not preserve
farmland. Furthermore, it does not enhance the
natural beauty of the area to build a power plant
in what is now and agricultural and residential
area. Elk Run has proposed to create a wetland, an
agricultural demonstration plot (by destroying
existing productive farmland) , and an area of
native grasses . But this proposal is nothing but a
façade to persuade the community to buy in to the
project.
7 . Strengthen and direct development towards existing
communities . This principle attempts to prevent
urban sprawl. This rezoning is a poster child for
urban sprawl. There is existing area within the
current boundaries of Waterloo where this power
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plant could be built . The area of this project is
near an existing area of Waterloo that is already
extending far out from the contiguous area of the
city. Moreover, this annexation and rezoning is a
classic case of leapfrog sprawl . That means that
the city is sprawling to an area that is not
adjacent to the city, but is "leapfrogging" to an
area away from the current city boundary. An
attempt has been made to avoid this problem by
annexing the railroad right-of-way, but that is
clearly a pretext to comply with the annexation
statute requiring an adjacent boundary of at least
50 feet . Any rational person looking at a map of
the annexation would conclude that this is actually
leapfrog sprawl, and probably spot zoning.
8 . Provide a variety of transportation choices. The
basis of this principle is to allow and encourage a
community to be less dependant on motor vehicle
transportation. In this case, having a power plant
located beyond the current boundary of the city
actually relies on motor vehicle traffic for
employees to get to the job, for trucks to haul
away the coal combustion waste, and for trucks to
provide chemicals and other products used by the
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plant. Urban sprawl like this always creates more
dependence on motor vehicles .
9 . Make development decisions predictable, fair and
cost effective. This is the smart growth principle
that is most blatantly violated by this proposal .
Rezoning in this case would not be a predictable
and fair land use decision. It would be an ad hoc,
after-the-fact decision based on the desire of a
single entity, a desire based on the speculative
decision by Elk Run to buy property not in the city
that is zoned agricultural, on the guess that the
City would annex the property and rezone it just
for the benefit of Elk Run.
10 . Encourage community and stakeholder collaboration
in development decisions . There has been no effort
in this case to encourage collaboration. It is just
an effort to impose on the citizens of Waterloo and
the residents of the area in and around the Elk Run
property a land use that is incompatible and does
not incorporate the principles of smart growth.
5 . Street Congestion
Elk Run has hired a consulting firm to justify this
project in terms of projected traffic issues . The report by
Earth Tech documents an increase in truck traffic due to
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deliveries in and out of the plant and the increased
traffic from employees of the plant going to and from work.
This is obviously going to increase congestion on the
streets . Although Earth Tech suggests some alleged
mitigation measures, the point is still that there will be
an increase in traffic congestion caused by a project that
does not have to be, and should not be, located in that
area.
6 . Safety From Disasters
The extra rail traffic has implications for people
wanting to get from one side of the railroad tracks to
another. The issue is more than just the amount of time it
takes to clear a crossing; it also is dependant on how long
the line of traffic becomes during the wait.
There is no provision for providing pedestrian bridges
over the railroad tracks near areas where there is heavy
foot traffic.
7 . Health and General Welfare
With respect to the health aspects of the Elk Run
project, the Black Hawk County Board of Health has
recommended a statewide moratorium on coal-fired power
plants because of the health effects of emissions from such
plants . The Board' s action was based on research and a
report by Dr. William Stigliani from UNI .
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Although the term `general welfare" is somewhat vague
and subjective, we must remember that zoning is a land use
decision. The promise of alleged economic benefits, jobs,
tax revenues, etc. , from the entity seeking the rezoning
are not proper considerations in a land use decision. The
basis of a land use decision is what is the best use of the
land and would the land be used in a way that is compatible
with the uses of other land and the people on that land. So
any promises of economic benefits, jobs, tax revenues, etc.
should not be considered in this decision.
8 . Adequate Light and Air
This factor is not really an issue with respectto the
Elk Run project, but on the other hand, the project
certainly does not encourage adequate light and air.
Clearly the plant will produce significant air pollution,
ranging from carbon dioxide which is one of the main green
house gases, to particulate matter, to mercury.
Particulate matter is implicated in respiratory problems,
including asthma, and coronary heart disease. Mercury is a
powerful neurotoxin. Once mercury leaves the smokestack,
falls on the ground, and is carried to water bodies via
storm water runoff, mercury changes its composition to
methylmercury. The methylmercury contaminates fish, which
when eaten, then poison the person who eats tZe fish.
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Mercury toxicity can harm developing fetuses in mothers who
have been exposed to mercury. Iowa has a number of water
bodies that carry advisories warning people not to eat more
than one fish a week due to mercury contamination. Coal-
fired power plants are the chief source of mercury
contamination.
9. Overcrowding of Land
Because the area to be rezoned is now agricultural
land, the imposition of a large industrial plant
contributes to overcrowding of the land.
10 . Undue Concentration of Population
This is not a significant factor in this case.
11 . Conservation of Energy Resources
Conserving energy resources is accomplished by
promoting growth within the core area of a city. When
development occurs outside of that area, i.e. , urban
sprawl, it results in energy being consumed for
transportation and services. The Elk Run project, as
previously discussed, is urban sprawl and contributes to
unnecessary use of energy resources .
12 . Reasonable Access to Solar Energy
This issue is not directly affected by this project .
However, it can be argued that reliance on coal-fired
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electricity generation avoids development of solar energy
as a non-polluting alternative energy source.
13. Adequate Provision of Transportation, Water, Sewerage,
Schools, Parks and Other Public Requirements
It has been publicly stated that the reason Elk Run
wants to be annexed into the City of Waterloo and have the
property rezoned is so it can receive services from the
City. Elk Run proposes to take wastewater from the City' s
sewage treatment plant and to transport the wastewater to
the Elk Run plant to use in its cooling process. To
accomplish this, a pipe would be connected between the
sewage treatment plant and the power plant, with an
easement created for the pipeline. This is a benefit to Elk
Run, not to the public.
Elk Run has characterized the wastewater being
discharged into the Cedar River as having no beneficial
use, but using it to cool the power plant as a beneficial
use is showing only a portion of the wastewater issue. As
it is being used in the cooling process, the wastewater
most likely will be treated with chemicals to prevent
scaling and rust. Additionally, the water will rise in
temperature . As soon as Elk Run has used the water for its
cooling process, it will be discharged back into the Cedar
River.
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This scheme will require a pipeline from the City' s
wastewater treatment plant to the Elk Run facility. This
would be a much more efficient process if the Elk Run
facility were closer to the City' s core and the wastewater
treatment plant . Instead, because Elk run chose to acquire
land outside the current city boundary and assumed the City
would annex and rezone the property, it will require at
least 5 miles of pipeline to transport the water.
14 . Character of the Area and Suitability for Particular
Uses
These issues have been discussed under previous
headings in this statement. To summarize, the character of
the area is agricultural and residential . There can be no
more incompatible use with this character than an
industrial use. The area is outside the current city
boundary and is not even adjacent to the existing boundary
except through the artifice of annexing the railroad right-
of-way between the existing boundary and the Elk Run
property.
And there is no particular suitability of this property
to the industrial use of a power plant . It is not close to
city services, especially to the source of water for the
plant operation. The property is close to a railroad
access, but other areas would be just as close to the
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railroad and would be more available to other city
services.
15 . Conserving the Value of Buildings
Elk Run financed a report from a real estate appraiser
regarding the possible effect of the Elk Run plant on
property values in the area. The report is short and lacks
the usual analysis of property values and comparable sales
that real estate appraisers usually use. The concern is
with the value of the residential property near the
proposed plant.
The appraiser' s report makes the statement that it
appears that the supply of residential property surrounding
the Elk Run site exceeds demand. But there is absolutely no
data or information substantiating that statement. The fact
is that the people living in the area have had no desire to
move and sell their property, so there is no market . Thus,
there is no basis for determining market demand. But, if a
monstrous power plant complex is constructed adjacent to
the residential areas, the landowners will want to sell,
but no one will want to buy. That situation creates a loss
in property value .
The appraiser attempts to compare the experience with
property values in Cedar Falls, with two small generating
plants in that city. This experience is not comparable to
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what would be experienced by the residents around the Elk
Run plant . The Cedar Falls plants are much smaller and
would not create the visual problems, traffic congestion,
and other adverse effects that the Elk Run plant would
create. In addition, there are other reasons that people
want to live in Cedar Falls that would overcome any minor
problems caused by the two power plants there .
Finally, the appraiser claims that a large power plant
in Council Bluffs operated by MidAmerican Energy has not
stopped a developer from developing a small residential
subdivision close to the plant . Again, there may be other
factors weighing in favor of people living in Council
Bluffs. Also, the appraiser' s report does not say whether
the developer has been able to sell homes in the
subdivision. Developers do not respond to a need. They
develop a project and then hope to create a need.
In summary, the appraiser' s report is just not
sufficient to be relied upon.
16. Encouraging Most Appropriate Use of Land
This issue has essentially been discussed previously
in this statement under other headings . It is just not an
appropriate use of land to place an industrial facility in
the middle of and agricultural and residential area. It is
not appropriate to place an industrial facility outside the
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current city boundary and expect the City to annex and
rezone the property and extend city services to the area,
when an area closer to city services would be more
appropriate . It is not appropriate to destroy almost 500
acres of farmland for an industrial use.
CONCLUSION
For too long we in Iowa have paid little or no
attention to proper land use. Zoning and land use decisions
have been made on an ad hoc basis to suit the whim of a
single developer or corporation. We are lured with the
promise of jobs, economic benefits, and increased tax base.
These promises are often unrealized. In any event, these
issues are not a proper basis for land use decisions . They
are nothing more than bribes and extortion.
Good land use planning requires us to look beyond the
immediate situation, and decide what kind of world we will
leave to future generations. Will those future generations
say that we fell victim to our own greed, or will they say
that we had the foresight to create a world built on a
sustainable economy that benefits everyone and shows
respect for the land?
/s/ Carafe Fates /s/ Wallace L. Taylor
Carole Yates, Chapter Delegate Wallace L. Taylor
Cedar Prairie Group Legal Chair, Iowa Chapter
of the Sierra Club of the Sierra Club
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