News from around Iowa: More MidAmerican Energy wind investments

To conclude what I’ve come to think of as “wind week” here at the BLUZ, here is a story of MidAmerican Energy’s latest western Iowa project.  The Iowa-based utility company will add 67 wind turbines at two western Iowa locations:  64 in Adams County in southwest Iowa, and three in O’Brien County northwest Iowa.  The turbines have the potential to generate 162 megawatts of energy, enough to power 48,000 homes.

More than 27 percent of Iowa’s energy comes from wind, the highest state percentage in the nation. Iowa also has the seventh-best wind resource, or potential for wind energy generation, in the U.S. (in other words, the wind blows a lot here).  Wind energy production in Iowa has received little of the resistance experienced in other locations around the country.  The western Iowa counties where the wind farms are locating – in addition to being the windiest parts of the state – are also some of the most sparsely populated.  Few of the rural residents are non-agland holders, meaning that the landowners affected by the turbines are also the people that gain the most financially from the industry’s growth.

The Des Moines Register article is here.  It includes a good summary of the investments in the wind industry in Iowa.

Vermont neighbor can bring nuisance claim for wind farm, despite losing fight against permit

Note:  This case is from the Federal District Court for Vermont, but it is interesting and in keeping with our “wind week” theme.   It was originally posted by Patricia Salkin on her blog, The Law of the Land http://lawoftheland.wordpress.com.

Brouha v Vermont Wind, LLC
(Federal District Court for Vermont, September 23, 2014)

Plaintiff alleges that the Sheffield Wind Project that the Defendants owned and operated created an unreasonable noise impact, that the noise prevented the Plaintiff from gardening, eating outside, walking and other activities similar, and the Plaintiff therefore suffered stress, pain and suffering and loss of the use of his property.

The District Court of Vermont found that the Plaintiff submitted sufficient information for a private nuisance claim, due to interference with the use and enjoyment of another’s property that is both unreasonable and understanding. Defendants contended that the Plaintiff’s complaint should be collaterally estopped because the claims litigated were already decided when the Plaintiff unsuccessfully contended and appealed against the granting of the permit, but Plaintiff in return claims that the standard applied for the permit were different from the standard applied for private nuisance.

The court found that the enjoyment of the Plaintiff’s property has never been litigated, and the restrictions imposed by the permit did not cover a private nuisance issue. Collateral estoppel does not apply here as the private nuisance claim was not raised in the first action, and the general nuisance claim that focused on the impact to the community was not identical to the private nuisance issue. Defendants’ motion was to dismiss Plaintiff’s private nuisance claim was therefore denied.

 

Delay that doomed wind farm project did not give rise to substantive due process claim

by Rachel Greifenkamp and Gary Taylor

CEnergy-Glenmore Wind Farm #1, LLC v. Town of Glenmore
(Federal 7th Circuit Court of Appeals, August 7, 2014)

In Glenmore, Wisconsin, CEnergy planned to develop a wind farm. CEnergy obtained a conditional use permit from the town but did not obtain the required building permits for the wind turbines. CEnergy had entered into a power purchase agreement with the Wisconsin Public Service Corporation to sell wind energy for 20 years; however, the agreement was contingent upon CEnergy satisfying a variety of requirements, including obtaining all necessary permits, by March 1, 2011.

In September of 2010 the applications for the building permits to build the turbines were submitted to the Town Board.  In December 2010, CEnergy had provided all necessary information for the permits and informed the Chair of the Board that the permits would need to be approved by March 1 for CEnergy to satisfy the power purchase agreement. Over the course of the next three months, public sentiment had turned decidedly against the project, with the Board Chair receiving threats to his physical safety.  The Board did not take up the the issue of the building permits at the January or February meetings, ostensibly because the town’s attorney needed more time to review the documentation submitted by CEnergy.   The applications for building permits were finally considered and granted at a meeting on March 7, but citizens at that meeting became “accusatory and threatening” toward Board members and other town officials.  The Chair reopened the meeting and, after further discussion, the Board voted to rescind the granted permits.  One week later, however, the Board held a special meeting and nullified the rescission, thereby reinstating the granted permits.

When the Wisconsin Public Service Corporation backed out of the power purchase agreement due to CEnergy’s failure to obtain the necessary permits in time, CEnergy filed suit against the Town of Glenmore claiming a denial of its right to substantive due process and a violation of the town’s state law obligation to deal in good faith. The federal district court dismissed the due process claim for failure to state a claim upon which relief can be granted, the district court also declined to retain jurisdiction over the supplemental state law claim. CEnergy appealed the decision to the Seventh Circuit Court of Appeals.

On the issue of the denial to substantive due process, the Court of Appeals noted that while both the Supreme Court and the 7th Circuit Court of Appeals have acknowledged the possibility that a land-use decision could constitute a deprivation of property without substantive due process of the law, neither have definitively concluded such. However, like the district court, the Court of Appeals concluded that the substantive due process claim fails because the Board’s actions were not arbitrary.  “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….The idea in zoning cases is that the due process clause permits municipalities to use political methods to decide.”  While the courts have stated the substantive due process standard in many ways – decisions must “shock the conscience,” be “egregious,” “arbitrary and capricious,” or “random and irrational” – the Board’s decision making process did not meet any of the tests.

The Court of Appeals further held that CEnergy’s claim must fail because it did not seek recourse under state law. The court has held in the past that a plaintiff who ignores potential state law remedies cannot state a substantive due process claim in federal court.  The standard process for obtaining a building permit in Glenmore involves submitting the request to the Town Zoning Administrator and then, if denied, bringing the request to the Board of Appeals. This typical process does not involve the Town Board at all. Because CEnergy went along with the political process and did not seek another administrative course of action to get their building permits approved, there is no opportunity for them to regain the lost profits from the wind farm.

The 7th Circuit Court of Appeals affirmed the judgment in favor of the Town of Glenmore.

 

News from around Nebraska: 11,000-acre wind farm proposed south of Lincoln runs into turbulence

An 11,000-acre wind farm proposed for southern Lancaster and northern Gage county is running into public resistance. Volkswind USA wants to build 54 turbines on 7,000 acres of land in Lancaster County and 4,000 acres in Gage County, near Hallam and Cortland.  More than 50 landowners already have signed leases; however, Volkswind has already withdrawn its permit application for one wind turbine on 160 acres within the one-mile territorial jurisdiction of Hallam and canceled a planned public meeting.  Volkswind had invited neighbors to attend after some area residents voiced concerns at at a Hallam village board meeting that the turbines would be unsightly and noisy and would cause health problems and lower their property values.

The Lincoln Journal-Star articles are here:  September 29, October 8.

News from around North Dakota: Western ND county approves first wind farm

Stark County (Dickinson), a gateway to the northern fracking region, is also promoting renewable energy by approving its first proposed wind farm for 55 turbines.  An article from the Prairie Business Magazine is here.

Wyoming wind task force votes for limits on eminent domain

The Associated Press released the following article concerning the use of eminent domain in Wyoming for private companies building collector lines for wind turbines:

CASPER, Wyo. (AP) — Private companies that want to string small power lines from wind turbines to the main power grid wouldn’t be able to seize land from Wyoming landowners under a recommendation made by a task force Thursday.

The Wind Energy Task Force voted 5-4 to deny the power of eminent domain to private companies building so-called collector lines for wind projects in the state. Eminent domain is the forced acquisition of private property for public use and has been used to build railroads, pipelines and other projects.

At the same time, the panel recommends that regulated public utilities retain the power of eminent domain. Public utilities are subjected to more scrutiny from state Public Service Commission regulations and oversight.
Task force chairman Rep. Kermit Brown, R-Laramie, said the panel’s eminent domain recommendation seeks fairness for landowners whose land is needed only for small collector lines.

“All he gets is one lump sum payment for the fair market value of what little property they need and he never sees another dime,” Brown said.

Landowners with the wind turbines on their land pocket monthly checks from the wind producer, Brown said.
The task force’s recommendations go the Legislature, which would have to approve any change in state eminent domain law.

Wyoming imposed a moratorium on the use of eminent domain for collector lines that went into effect in March and will last through June 30, 2011. It’s meant to buy some time for Wyoming citizens and policymakers to examine the issue.

The Legislature last made changes to the state’s eminent domain law in 2007 mainly because of complaints from landowners who felt run over by booming oil and gas development. The process proved contentious.
Brown still refers to the 2007 debate as the “eminent domain wars.”  “They’re just tough, tough issues every time they come up,” he said.

Jill Morrison, an organizer with the Powder River Basin Resource Council, which advocates for private landowners, applauded the panel’s decision.

“If we can restrict eminent domain in any way I think our landowners support that because we believe these issues should be addressed through private negotiations and agreement, not through holding a gun to somebody’s head and threatening eminent domain, which basically forces the landowner to take whatever the condemner is offering because they have the greater power,” Morrison said.

Cheryl Riley, executive director of the Wyoming Power Producers Coalition, declined immediate comment on the task force’s action until she can study its recommendation.

Brown said he couldn’t say how the task force’s recommendations might affect the growing wind industry in Wyoming.
The dozens of wind farms that have been built or are being proposed in the state so far have hugged the main power transmission lines that cross the state. Building wind farms farther away from the grid will mean erecting many more of the collector lines.

Wyoming is one of the most reliably windy inland areas of the United States, and its wind energy potential has attracted wide interest in recent years.

Kansas Supreme Court rules on county ban on wind energy

by Allison Arends

Zimmerman, et. al. v. Wabaunsee County Board of Commissioners
(Kansas Supreme Court, October 30, 2009)

Wabaunsee County had no zoning regulations on wind energy systems.  A month after the Wabaunsee county zoning administrator notified the Board of Commissioners that a company was interested in building a wind farm in the county, the Board passed a temporary moratorium on the acceptance of applications for wind farm projects until the planning commission held a public hearing to deliberate possible zoning changes.  As part of the deliberation the Board ordered the planning commission to review and recommend updates to the county’s comprehensive plan, which had not been updated since 1974.  In 2004, the planning commission recommended changes to the comprehensive plan which included goals such as increasing the organizational pattern of land use, maintaining rural character of the county, promoting business growth etc.  Although the planning commission recommended allowing commercial wind farms, the Board added a new paragraph to the comprehensive plan which recommended prohibiting the development of commercial wind farms, and followed it up with zoning changes that carried out the ban.  The Board found that, “They would be incompatible with the rural, agricultural, and scenic character of the County. They would not conform to the Wabaunsee County Comprehensive Plan including the goals and objectives that were identified by the citizens of the county and incorporated as part of the Plan.  Land owners in Wabaunsee county interested in developing commercial wind farms on their properties sued the Board arguing that the Board acted unlawfully and unreasonably in its prohibition of commercial energy conversion systems.

The Kansas Supreme Court supported the Board’s actions, finding that the Board acted within its legislative powers to adopt the ban despite the planning commission’s recommendations to the contrary.  The court also validated the Board’s use of aesthetics as a justification for its decision, citing K.S.A 12-757(a) which states, “the governing body may adopt zoning regulations which may include but not be limited to, provisions which… (4)control the aesthetics of redevelopment or new development.” The court also noted that the Board acted reasonably when they argued that the commercial wind farms would not be in conformance with the Comprehensive Plan amended in 2004, and that the restriction would, “maintain the rural character of the county with respect to its landscape, open spaces, peace, tranquility and solitude.” The court recognized the wishes of the county’s residents as another factor that validated the Board’s  decision to ban commercial wind farms.

Moreover, the court specifically addressed the ecological harm commercial wind farms would have upon the endangered Tall Grass Prairie ecosystem located within the county. The court observed that “Wind farms could have a detrimental effect on the ecology of the area, affecting prairie chicken habitat, breeding grounds, nesting areas, feeding areas and flight patterns. Wind farms would not be in the best interest of the general welfare of the county as a whole based on aesthetics, size and scope of the complexes needed for them and their placement on the ridge lines of the county,” which make them “objectionable and unsightly.”

Wisconsin wind energy facility law preempts county ordinance

by Allison Arends

Ecker Brothers v. Calumet County
(Wisconsin Court of Appeals, July 15th, 2009)

Wisconsin state statute concerning wind energy systems preempts county permitting scheme. 

The Ecker Brothers, who had one working wind turbine on their farm already, wanted to build more wind turbines on their farm property in order to generate energy to sell back to the power company. In order to do so, the brothers needed to obtain a grant. The grant required the Calumet County and the Town of Stockbridge to provide an acknowledgement letter stating that the Ecker Brothers did not need a permit to build wind turbines.  The Town sent a letter but the County did not.  The County instead passed a wind turbine ordinance which categorized wind turbines as either small or large systems, and established across the board regulations for each.  Under this ordinance the Ecker Brothers were required to apply for a permit illustrating that their wind turbine projects met the ordinance’s restrictions.  The Ecker Brothers filed a declatory judgment action in which they stated that the county exceeded its authority under Wis. Stat. 66.0401.  The circuit court agreed with the county, and the Ecker Brothers appealed.

The issue before the Wisconsin Court of Appeals was the extent to which political subdivisions in Wisconsin have the authority to regulate wind energy systems.  Wis. Stat. 66.0401 specifically states that no city, county, town or village may place any restriction on a solar or wind energy system unless the restriction satisfies one of the three following conditions: (1) it serves to preserve or protect the public health or safety; (2) it does not significantly increase the cost of the system or significantly decrease its efficiency; or (3) it allows for an alternative system of comparable cost and efficiency.  The statute also specifically states that political subdivisions can grant permission to trim vegetation causing interference with wind or solar systems, as long as the vegetation was planted after the placement of the energy collection unit.  Calumet County’s ordinance set minimum setback, height and noise requirements for any wind system locating in Calumet County. 

Noting that the intent of the state statute was to favor wind energy systems, the Court of Appeals considered Calumet County’s across the board regulation of all wind energy systems to be a “one size fits all” method of control that was preempted by state statute.  Although the county argued that its ordinance did not violate the state statute because all of its restrictions conform with the three exceptions stated within Wis. Stat. 66.0401, the Court instead viewed the county’s determination that in all cases setback, height and noise limitations were necessary to preserve public health, safety and welfare to be an impermissible intrusion into legislative policy-making.  Wis. Stat. 66.0401 instead contemplates that cities, counties, towns and villages “must look at each wind system on its own merits and decide, in each specific case, whether the wind system conflicts with public health or safety.”  The Court took the view that the state statute thus contemplated local regulation in the form of a conditional use permit procedure that restricts systems as needed on a case-by-case basis, rather than a local ordinance creating a permit system with across-the-board regulations based on legislative policy-making. 

The Court of Appeals reversed and remanded the case to the circuit court for reconsideration, in light of the fact that the county exceeded its authority under Wis. Stat. 66.0401 when it adopted its wind energy ordinance.

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