A town board did not act unconstitutionally when it waffled on issuing permits for a proposed wind farm that ultimately fell through, according to a federal appeals court ruling.
The 7th U.S. Circuit Court of Appeals, in a decision authored by David Hamilton, ruled that CEnergy LLC had no claim against the town of Glenmore. The Eau Claire-based company claimed the town failed to diligently act to issue a permit for the construction of seven turbines. But, according to the Thursday decision, the approval process was protracted “because of threats made to the physical safety of those officials by a mob of citizens.”
CEnergy alleged the town cost the company a $7 million deal to sell power to the Wisconsin Public Service Corp. But the appeals court, which upheld a July 2013 ruling by Eastern District of Wisconsin Chief Judge William Griesbach, decided that the town board’s decisions to delay the vote were not arbitrary, since it was done at the behest of at least some of the residents it represents.
According to the decision, CEnergy failed to properly appeal the board’s decision in state court before bringing the federal suit.
“As far as the Constitution is concerned, popular opposition to a proposed land development plan is a rational and legitimate reason for a legislature to delay making a decision,” according to the appellate court’s decision.
The project in question first was proposed in 2007 by Prelude LLC, which CEnergy later bought. Prelude entered into a contract with WPS about two years later.
The contract was contingent on Prelude being able to obtain all the necessary permits before March 1, 2011. The company submitted its requests to the town’s board in September 2010, but the board refused to accept it until it received more information about the project, according to the court’s decision.
Meanwhile public opposition to the project grew, as residents expressed concerns about the potential health effects of wind turbines. CEnergy submitted all of its materials to the board by Dec. 31, 2010, but the board did not take up the requests at its meetings in January or February 2011, according to the decision.
On March 1, 2011, the board agreed to let CEnergy submit its applications for the permit and said it would vote on it the following week. The board approved the permit, but the residents became “accusatory and threatening” to the public officials, according to the decision, so the meeting was reopened and the vote was rescinded.
A week later, the board held yet another meeting to reinstate the vote. But by then, WPS had backed out of the deal and would not renegotiate.
Joseph Cincotta, an attorney with Kerkman & Dunn, Milwaukee, representing CEnergy, declined to comment on the decision.
A representative for CEnergy could not immediately be reached Friday. Glenmore town board Chairman Rick Loppnow did not return a voicemail.
Remzy Bitar, the town’s attorney, said he and his client were pleased with the decision.
“A lot of the allegations in this case were that the town wrongfully was sensitive to the public uproar and delayed in making a decision,” Bitar, an attorney with Crivello Carlson SC, Milwaukee, said. “The court flatly rejects that. It’s pretty common for elected officials to take into consideration concerns of their constituents.”
Glenmore – as well as the eastern part of the state – has been ground zero for wind turbine projects and related fights, both in court and at the municipal level. In 1998, the town was the site of the first two wind turbines put up in the state. Shirley Wind Farms, another contentious project with eight turbines, was installed in 2011.
Concerns about health effects from the turbines have sparked larger debate in the Legislature about how to regulate these projects. State Sen. Frank Lasee, R- De Pere, in a failed bill from the past session, would have given local boards more power to restrict the projects than the state administrative code currently allows.
Lasee’s spokesman, Rob Kovach, said Friday that it’s too early to tell whether the senator will introduce the bill in the next session.
A Legislature-created study committee is set to release a report in October to better answer questions about potential health problems associated with the turbines.Follow @eheisigWLJ