U.S. Court of Appeals for the 7th Circuit
Constitutional Law — substantive due process — windmills
Where a windmill developer failed to take advantage of state law remedies when it was unable to get required building permits, its substantive due process rights were not violated.
“Confusingly, CEnergy contends elsewhere in its appellate brief that the decision whether to issue the permits was not ‘subject to legislative or political whims.’ Yet the company chose to ask a legislative body, the Town Board, to vote on the permit requests rather than proceeding under the zoning ordinance or arguing in state court for mandamus relief on the basis that the Board’s consideration of the permit requests was actually an administrative function rather than a legislative one. CEnergy is thus like the unsuccessful plain-tiff in River Park, which alleged in support of its due process claim that the city council was obliged by state law to approve a subdivision plan but intentionally delayed approval until the subdivision project was no longer feasible. CEnergy also ‘went along with the political process until it was too late’ for another course of action and then ‘lost the political fight.’ 23 F.3d at 167. Now CEnergy seeks a judgment in federal court that would cost each resident of Glenmore roughly $6000. The company, however, must live with its strategic choices. No do-over is available through federal litigation. Id.”
Appeal from the United States District Court for the Eastern District of Wisconsin, Griesbach, J., Hamilton, J.