Loading...
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 1 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 2 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 3 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 . 4 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 5 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 6 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 . 7 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 8 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 9 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 10 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 . 11 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. 12 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 13 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. lQ 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 15 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 16 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 17 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 18