Library filed under Legal from Wisconsin
A state appeals court Thursday, Jan. 3 dealt the town of Forest another legal blow in its attempt to limit noise levels the Highland Wind Farm would generate. The District III Court of Appeals upheld a ruling by St. Croix County Circuit Judge Edward Vlack dismissing the town's request to review part of the Public Service Commission's approval of the 44-wind turbine project.
The PSC decision defies St. Croix County Circuit Court Judge Vlack’s August 2015 Order and Decision. Judge Vlack’s ruling specifically stated that the Commission must explain why six sensitive residences were identified and selected for lower noise limits and not an additional eleven residences.
Judge Vlack ruled that more explanation by the PSC was due as to why six sensitive residences with health conditions were selected for lower noise standards while eleven other similar residences on record were denied consideration. Judge Vlack also made note of apparent ex parte communications between PSC staff and the wind developer in the selection of the six sensitive residences that excluded participation by the Town and the Forest Voice in those determinations.
The issue has long plagued local health boards in Massachusetts. Fairhaven, Mass., for example, in June 2013 shut down the town's two turbines at night in response to complaints about sleep deprivation. Falmouth, Mass., found in 2012 that one turbine was violating local ordinances because it was too close to a home and emitting too much audible noise -- not infrasound. But the controversy spurred studies by acousticians, including Rand, that concluded the turbines produce sounds capable of disturbing nearby residents and may lead to annoyance, sleep disturbance and other impacts. That led multiple residents to file lawsuits seeking damages for their health problems, claiming the turbines were to blame.
The Town has long fought and will continue to oppose the Highland Wind Farm project, which would place 42 500-foot tall wind turbines close to homes. The Shirley Wind Farm project, a wind farm designed by the same company behind the Highland Wind Farm project and which uses similar turbines, has been declared a public health hazard by the Brown County Board of Health after its excessive noise led families to abandon their homes.
Judge Ed Vlack said the PSC created a new compliance standard that amounted to rule-making that exceeded its authority and that the PSC failed to provide a full hearing on the selection of certain residences for additional protective standards.
At issue for the court was the PSC's finding that the wind developer would be considered in compliance with state noise standards if measurements of noise from turbines demonstrate that they are within maximum decibel levels 95% of the time — or just under 23 hours a day. Vlack said the commission had previously expressed concern that more information was needed before imposing that kind of standard, and because of that said it's important for the PSC to ensure it has sufficient grounds for allowing the 95% standard.
Despite the fact that St. Croix County Judge Edward Vlack Wednesday ruled that Highland Wind Farm’s noise curtailment plan “ensures compliance” with state wind siting regulations, the judge stated in an order this week that the Public Service Commission did not provide, among other things, “proper notice and hearing” for discussion of the state’s compliance standard.
In a 5-2 decision, the court upheld lower court rulings that determined a housing impact report did not need to be prepared before the PSC submitted its wind tower siting rules to the Legislature. State law requires agencies to prepare reports for any agency rules that "directly or substantially" affect development, construction or cost of housing.
Plaintiff CEnergy-Glenmore Windfarm #1, LLC, obtained a conditional use permit from the town of Glenmore, Wisconsin, to develop a wind farm there. But the company did not obtain required building permits in time to take advantage of a lucrative opportunity to sell electricity generated by wind turbines to a Wisconsin power company. CEnergy then filed this lawsuit against Glenmore claiming a denial of its right under the Fourteenth Amendment to substantive due process and a violation of the town’s state law obligation to deal in good faith. The district court dismissed the due process claim for failure to state a claim upon which relief can be granted and declined to retain jurisdiction over the supplemental state law claim. CEnergy has appealed. The appeals court upheld the lower court's ruling. The facts and procedural background of the case is provided below. The full decision can be accessed by clicking the links on this page.
The Wisconsin Realtors Association, Wisconsin Builders Association, Wisconsin Towns Association and others filed suit, claiming that Public Service Commission rule 128 is invalid because it was installed without a housing impact report. A Brown County judge upheld the PSC’s rules and Tuesday’s decision affirmed that ruling.
Susan Lodl was taken aback when she and other residents in the Sheboygan County village of Cascade received postcards in 2009 describing plans to use about $500,000 of village money on two wind turbines to power a new wastewater treatment plant. ...Lodl said she found a pattern of vague and misleading agenda items that failed to give residents proper notice and a chance for input.
A St. Croix County town has filed suit to block construction of a wind farm proposed by Emerging Energies. The $250 million project, the Highland Wind Farm, has been on the drawing board for several years and was initially rejected by the state Public Service Commission. The commission later reconsidered and gave the project the go-ahead last fall.
Town officials in St. Croix county are suing Wisconsin's Public Service Commission after the regulator reversed itself and approved the Highland Wind Farm last year. Emerging Energies is seeking to erect 44 wind turbines, each standing up to 500-feet tall, in the Town of Forest. In February 2013, Wisconsin's Public Service Commission denied a permit for the project due to noise concerns, but Emerging Energies officials urged the commission to reopen the case, citing new technology that permitted the project owner to control the turbine speeds at night. The PSC agreed and approved the permit shortly after.
Wisconsin lawmakers are scheduled to take up a bill next week that would make it easier for people to sue for perceived health symptoms and property value impacts they attribute to wind turbines.
Under the proposal, anyone living within 1.5 miles of a wind turbine could sue for damages related to physical or emotional suffering, loss of property value, moving expenses, or lost profits, and the wind farm owner or operator would be forced to pick up the tab for the plaintiffs’ attorney fees.
In this case, Glenmore Windfarm # 1, LLC obtained a conditional use permit from the town of Glenmore, Wisconsin, to develop a wind farm there. The company failed to obtain the necessary building permits in time to take advantage of an offer to sell the project's output to a Wisconsin utility. CEnergy sued the town claiming its Fourteenth Amendment due process were violated. In this decision, the district court dismisses CEnergy's complaint. A portion of the decision is provided below and can be accessed in full at the links on this page.
"This bill makes it easier for families that have been hurt by industrial wind turbines to receive compensation for their losses," Senator Lasee said. "It is unconscionable for a family that has invested hundreds of thousands of dollars in their home that they have lived in for years to be forced to move because an industrial wind tower is built nearby. Or wish that they could move and just can't afford it."