A judge has dismissed a lawsuit from a wind farm developer that argued Manitowoc County's wind turbine ordinance violates state law and makes the company's proposed project "cost-prohibitive."

Manitowoc County Circuit Judge Darryl Deets on Wednesday dismissed the case, which was filed by Emerging Energies LLP of Hubertus, in May 2007.

Emerging Energies is proposing a seven-turbine wind farm in the town of Mishicot. The plan has been met with criticism. In April 2007, the project was derailed when opponents won a favorable ruling in a civil suit seeking to void a conditional-use permit the county had granted under its original ordinance.

In an interview, Deets said the company would have to apply for a conditional-use permit under the most recently amended ordinance before the court could determine if the ordinance's restrictions violate state law.

The ruling means Emerging Energies would have to file its permit application through the county Board of Adjustment and receive a decision before the company could proceed with a lawsuit, according to Susan Lovern, a Milwaukee-area attorney representing the county.

"We think these are intentional arrangements to ban wind development in Manitowoc County," said Edward Ritger, an attorney for Emerging Energies.

Ritger said his client has been subject to several pre-conditions in the amended ordinance that have prevented the company from submitting a permit application.

The company's project costs have increased $1 million per month since the company's original permit was voided last year, he said.

"I don't know of any other county that has this kind of arrangement where you use one local government as a veto to the other local government," he said. "It's kind of in an almost orchestrated web."

Emerging Energies had asked Deets to void 20 requirements in the amended ordinance because "they do not allow for an alternative (energy) system of comparable cost and efficiency" and "do not serve to preserve or protect the public health and safety."

The amended ordinance includes a requirement for a 1,000-foot setback for wind turbines from a neighbor's property line, while allowing an easement for a lesser setback if an adjacent landowner agrees.

Company seeks damages

Emerging Energies has been unable to obtain a written statement from the Mishicot Town Board on the project, which is required in the permit application under the amended ordinance, Ritger said.

The company is seeking financial damages from the town for $1 million per month since February. The company also is seeking $5 million in punitive damages due to the "willful" and "malicious actions" of the town to "thwart" the company's application, according to a claim issued this week.

Town officials will have 120 days to respond to the claim, Ritger said.

The town board decided to table the written statement, according to Steve Rollins, county corporation counsel.

He said the town's decision would be taken under consideration if the company applies to the county Board of Adjustment for a permit.

Emerging Energies filed its first permit application in April 2005. A year later, the Manitowoc County Board approved an updated ordinance that took effect in May 2006.

The company's permit was granted in July 2006, using the ordinance in place when the application was submitted.

But Manitowoc County Circuit Judge Patrick Willis in April 2007 ruled the county Board of Adjustment had failed to act "according to law" when the permit was approved because it did not apply the most recently amended version of the ordinance.