The supervisors’ chambers at the Tama County Administration Building in Toledo pictured on Tuesday, Nov. 12, during a Zoning Board of Adjustment appeal hearing held in regard to Zoning Administrator Bob Vokoun’s Sept. 16 issuance of 60+ zoning certificates to Salt Creek Wind. Those pictured at the front table among the standing room only crowd include counsel for the board, attorney Steve Leidinger, left, and petitioner Beverly Espenscheid’s counsel, attorney Shawn Shearer, right. PHOTO BY RUBY F. MCALLISTER

TOLEDO – In what has become a multiyear saga mired in controversy, the developers behind Salt Creek Wind (SCW) – the latest iteration of a central Tama County commercial wind energy project – might finally begin construction following the outcome of a contentious Tama County Zoning Board of Adjustment appeal hearing.

On Tuesday, Nov. 12, more than 50 people were in attendance at the county administration building in Toledo for the hearing held to address an appeal lodged by Traer resident Beverly Espenscheid through her attorney Shawn Shearer of Des Moines.

Espenscheid was appealing Tama County Zoning Administrator Bob Vokoun’s recent issuance of zoning certificates for the erection of 60 wind turbines and one (1) substation by SCW’s developers. So many folks elected to learn the outcome of the appeal on Tuesday evening, the venue was standing room only well before the 6 p.m. start time; at least a dozen people were forced to listen in from outside the meeting room’s open doors.

Ahead of the appeal, Vokoun received written correspondence from SCW on Aug. 21, 2024, in which the developers surrendered the 60 zoning certificates they held at that time while also withdrawing any requests related to said certificates.

According to Vokoun, some two weeks later on Sept. 6, SCW submitted a new set of applications for 60 zoning certificates and a substation.

Many citizens were forced to attend the hearing on Tuesday evening from the hallway outside the standing-room only conference room. PHOTO BY RUBY F. MCALLISTER

“After requesting additional information and confirming the applications’ compliance with the existing Conditional Use Permit, each of the applications was approved and Zoning Certificates were issued on September 16, 2024,” Vokoun told the newspaper in an email on Oct. 7. He further said per the county’s ordinances, the certificates would expire within 90 days of issuance “if a substantial beginning has not been made in the construction or if the use applied for has not been established within one (1) year of issuance, subject to possible extension upon written request.”

Espenscheid’s appeal asserted Vokoun “acted illegally” when issuing the zoning certificates.

Specifically, her appeal stated the following: (1) the conditional use permit (CUP) – first issued to SCW in December of 2020 – was “obtained fraudulently” thereby negating the issuance of subsequent zoning certificates; (2) Vokoun acted “without substantial evidence” due to the various studies and documentation cited in the CUP having “long ago become stale” – thus requiring an update before zoning certificates could be issued; (3) Vokoun’s “actions were unreasonable, arbitrary and capricious;” and (4) the County, Board of Adjustment, and Vokoun lack authority – per county ordinance – to issue zoning certificates regulating the use of “active agricultural land.”

In reference to the first point, Espenscheid alleged that between the time the CUP application was submitted up to the present, SCW’s developers, Eric and Robert Bergstrom “used data and studies that did not belong to them”; “intentionally impersonated” the former iteration of Salt Creek Wind which first began development of the project in 2009; have “no financial ability to complete the project”; “concealed information regarding ongoing litigation” they have been involved in due to the use of proprietary information; “intentionally deceived by manufacturing blame on the war in Ukraine and COVID as the reason for 26-months to commence construction” (construction which still has not started as of press time); and “used four different law firms through this process, each firm being provided only limited information.”

“This dishonesty, lack of disclosure, shystering, thievery, and thuggery should not be rewarded by this BOA (board of adjustment),” the appeal reads. “Since 2019, Bob Bergstrom and his enterprise have been dishonest and deceptive with the landowners of Tama county, this BOA, and the County in general.”

Tama County Zoning Board of Adjustment member Nancy Yuska, second from right, reads a letter submitted by a member of the public during a hearing held on Tuesday, Nov. 12, in Toledo to address an appeal filed by Traer resident Beverly Espenscheid. Also pictured (from left), then-vice chair Todd Sebesta, chair Mike Seda, and board member Nikki Novak (far right).PHOTO BY RUBY F. MCALLISTER

At minimum, Espenscheid asked that the board “suspend or invalidate” the 60+ zoning certificates Vokoun issued on Sept. 16 while also investigating “why SCW forfeited existing zoning certificates only to re-apply.”

She also asked that the board investigate Vokoun’s “relationships with the zoning certificate applicants in this case” – the Bergstroms.

The hearing

The Nov. 12 hearing lasted for nearly two hours and included both Espenscheid’s attorney Shawn Shearer and the board of adjustment’s attorney, Steve Leidinger of Cedar Rapids providing testimony to the five-member board.

Vokoun, who was taking minutes during the hearing, was also brought in front of the board – placed in a “witness chair” – to answer questions from both Shearer and Leidinger.

Tama County Zoning Administrator Bob Vokoun, left, sits in the witness chair while being questioned by attorney Shawn Shearer (seated at the right side of the table) on Tuesday, Nov. 12. The Board of Adjustment’s counsel, attorney Steve Leidinger, center, is also pictured. PHOTO BY RUBY F. MCALLISTER

Prior to the attorneys’ testimony, chair Mike Seda made clear there was only one reason for the hearing – to determine whether Vokoun acted within the ordinances of Tama County when issuing the zoning certificates to SCW on Sept. 16.

“That’s the only issue we’re talking about … keep comments strictly to that agenda item,” Seda warned.

Board members Nikki Novak and Nancy Yuska then proceeded to briefly address ‘conflicts of interest’ charges that had been leveled against them separately by members of the public. In Novak’s case because she holds a “good neighbor lease” with SCW, while in Yuska’s case because, prior to her service on the board, she publicly advocated for updating the county’s wind energy conversion system ordinance. Both women declined to recuse themselves from the appeal hearing.

Yuska then read aloud four letters the board had received from members of the public unable to attend the hearing including one from Charles and Lori Johnson who hold a SCW lease but – ‘knowing what they know now’ – wished they had never signed such a lease.

In his letter to the board, Laverne Wegner, a Spring Creek Township farmer who also holds a SCW turbine lease, stated he was in favor of the Salt Creek Wind project and felt “tax receipts” would benefit the county by supporting various services including first responders.

PHOTO BY RUBY F. MCALLISTER

Much like the Johnsons’ letter, the other two letters were written in favor of the appeal including one from rural Clutier resident Chris Behrens.

The attorneys then took turns speaking to the board with Shearer going first.

Throughout Shearer’s testimony on behalf of Espehscheid’s appeal, Leidinger repeatedly stated his objections to any discussion of the CUP, telling the board they “must presume [Salt Creek Wind’s CUP] to be a valid conditional use permit because it has not been overturned by a court of law.”

During his initial testimony, Shearer referenced the four types of wind turbine models that SCW listed in the original CUP application, stating that SCW’s new zoning certificate application listed a completely different model

“[T]he CUP does not give authorization for [Vokoun] to issue a building permit for a model of turbine that’s not in the CUP,” Shearer said.

During Vokoun’s turn on the witness chair, Leidinger asked a series of questions regarding how he made his decision on Sept. 16 to issue the new zoning certificates to SCW.

“What process did you go through to evaluate the applications to make the decision to approve?” Leidinger asked.

“Going through each one and individually,” Vokoun replied. “Specifically the maps, checking distances. I did have a question on some distances – I would refer back to counsel on that. Going over things to make sure that the CUPs were still valid … Making sure that everything was in line the way it was supposed to be, that I wasn’t missing something or somebody else wasn’t missing something.”

During his time questioning Vokoun, Shearer asked the zoning administrator if he had noticed that the substation’s location had changed and also that the turbine model was different.

“I don’t recall where the original one was,” Vokoun said about the substation; in response to the turbine model change he said, “I referred those questions to counsel.”

Shearer also asked Vokoun if he knew when SCW would begin construction.

“What I was advised, they would commence construction as soon as possible,” Vokoun said.

Nearly 40 minutes later, Leidinger gave his final statement to the board.

“I can appreciate folks caring about their community. I can appreciate that people have differences of opinions with respect to whether alternative energy – or wind turbines in particular – are a helpful or hurtful thing. But the sole issue here is not whether these are good or bad. And the time for public opinion would have been back in 2020. Doesn’t mean that public opinion is invalid or that people’s thoughts and opinions don’t matter, they just don’t matter to this particular proceeding. And it would be unfair to this proceeding to allow those [opinions] to enter in, and further, it’s inviting the [Tama County] Board of Adjustment to make decisions it has no right to make when you’re asked to review the validity of that CUP.”

Leidinger continued: “The standard that the zoning administrator is required to look at when permits come in … As Bob testified, those documents were provided. I think it’s important to remember that a zoning certificate is not the end of the story. It doesn’t supersede the zoning ordinance. It doesn’t supersede the conditional use permits. It merely permits the applicant to commence constructing what was approved previously. And ultimately, you’re looking to confirm that what’s been built is what was approved and that they situated appropriately on the property. The wind turbines and the substation still have to comply with the zoning ordinance and the conditional use permits as constructed. It has to comply with all state [and] federal laws and regulations. … Again, it’s not the end of the story when a zoning certificate is issued.”

He further said no zoning administrator is a “judge” but rather must administer the laws and rules put in place by the county.

Leidinger ended his testimony by asking the board to “focus on the facts at hand” as to whether or not Vokoun “acted appropriately” when he issued the zoning certificates, and to “decline any invitation to exceed your jurisdiction.”

The public was then invited to submit comments with several members of the audience standing up to do so including Tama County Supervisor-elect Heather Knebel (R-Traer) who at one point said, “As an upcoming supervisor, I’m going to make sure this county is protected.”

Tama County Supervisor-elect Mark Doland (R-Toledo) also spoke, accusing Vokoun of providing “orchestrated testimony.”

The board’s decision

In the final 10 minutes of the meeting, the five-member board held a brief discussion before voting on the appeal.

For her part, Yuska said she had gone through the new zoning certificate applications “with a fine-tooth comb” and felt the change in turbine model as well as the advanced age of the various studies in the original CUP application were reason enough to affirm Espenscheid’s appeal.

While board member Kurtis Kelley, who was attending the meeting by phone, had no comments, Novak said she agreed with Yuska. Vice chair Todd Sebesta also had no comments.

Chairman Mike Seda rounded out the discussion by, again, insisting the board focus solely on whether or not Vokoun followed the county ordinance in his decision to grant SCW the new zoning certificates.

Yuska then said, “I make a motion that we reject, rescind, revoke, or overturn and reverse Bob’s decision to assign all these certificates,” but Leidinger took issue with the wording of her motion and Seda subsequently never asked for a second nor allowed any discussion on the motion. Yuska was then asked to make another motion that affirmed Vokoun’s Sept. 16 decision.

Following some confusion on Yuska’s part and a brief discussion between Shearer, Leidinger, and Seda, Vokoun said the board would be voting to affirm his Sept. 16 decision, explaining that a ‘yes’ vote would affirm the issuance of the zoning certificates while a ‘nay’ vote would strike down the decision to issue the certificates.

“Now that everyone understands that, hopefully, is there a second?” Leidinger asked to which Novak seconded it.

Adding more confusion to the proceedings, Seda then asked the board to first vote on a ‘motion’ to use Yuska’s new motion – a move which Leidinger said was not required but the board undertook anyway.

A roll call vote was then taken on Yuska’s motion to affirm Vokoun’s decision with Seda offering no chance for further discussion.

Kelley voted yes; Novak voted nay; Yuska voted nay; Sebesta voted yes; and Seda voted yes. The motion carried, 3-2, affirming Vokoun’s decision. The meeting was then abruptly adjourned.

In the wake of the hearing, Tama County received a resignation letter on Nov. 14 from Sebesta dated Nov. 12 – the day of Espenscheid’s appeal hearing.

In his letter Sebesta wrote, “​​This letter is to inform you that I am resigning as a member of The Board of Adjustment, effective November 13, 2024. It has been my pleasure to serve on the Board. However for personal reasons it is time for me to step down. I wish the best for the Board.”