Wisconsin court rules on wind

For 2 cents and a cup of coffee, I am in the habit of providing advice to Maine's burgeoning community wind power groups. I also advise on municipal wind power ordinances.

Wind ordinances are a class of regular planning ordinances and are subject to both explicit constitutional restrictions, which although written down in court precedent for anyone to read, are often poorly defined; and implicit restrictions that emanate from the right of all groups affected to sue in civil court, which as you can probably guess are also poorly defined.

Most frequently an ordinance is found wanting through the civil court process.

Occasionally, as in key cases like Lucas versus South Carolina Coastal Commission, which planning and policy wonks like me are required to study in grad school, the Supreme Court intervenes. In either case, the effect is most often to throw out badly written restrictive ordinances.

Lucas cases involve situations where landowners sue to remove local, county, or state restrictions on property development. The constitution protects economic rights in private property, and the Lucas precedent establishes that any restrictions that jurisdictions implement have to be capable of proving a clear pubic interest in avoiding a public nuisance, and must not be capricious in any way, so evenly applied to all landowners. Here's the money extract from the Supreme Court of the United States:

"A review of the relevant decisions demonstrates that the "harmful or noxious use" principle was merely this Court's early formulation of the police power justification necessary to sustain (without compensation) any regulatory diminution in value; that the distinction between regulation that "prevents harmful use" and that which "confers benefits" is difficult, if not impossible, to discern on an objective, value-free basis; and that, therefore, noxious-use logic cannot be the basis for departing from this Court's categorical rule that total regulatory takings must be compensated....Although it seems unlikely that common-law principles would have prevented the erection of any habitable or productive improvements on Lucas's land, this state-law question must be dealt with on remand. To win its case, respondent cannot simply proffer the legislature's declaration that the uses Lucas desires are inconsistent with the public interest, or the conclusory assertion that they violate a common-law maxim such as sic utere tuo ut alienum non laedas, but must identify background principles of nuisance and property law that prohibit the uses Lucas now intends in the property's present circumstances."

(Citation: LUCAS v. SOUTH CAROLINA COASTAL COUNCIL, 505 U.S. 1003 (1992))

In other words, you had better write a pretty good ordinance, carefully identifying the nuisance and showing how the regulation works to prevent it, if you want your ordinance to stick. The State Planning Office now has a model wind energy ordinance available, written by a team of experts. You can find it here. (Scroll down to find the ordinance.)

However, other Maine jurisdictions, including my own home town of Jackson, have anti-wind groups seeking more restrictive ordinances. In some cases these involve blanket restrictions, or blanket restrictions embedded, perhaps secretively, in setbacks (as in the Wisconsin case).

Blanket restrictions are a problem under the Lucas and related precedents. The underlying issue on which to base any restriction must be a clearly defined public nuisance, and jurisdictions have a responsibility to consider scientific evidence as to whether or not a nuisance such as sound or ice throw would exist, or actually be avoided by a restriction. If they don't the landowner or developer may sue. In some cases a blanket restriction will be found unlawful if it can be proved that the nuisance would have been present in some cases and not in others.

The Wisconsin courts just ruled on a case in that state, a ruling which we may find can also apply to Maine municipal ordinances in the case of a court test, albeit modified by Maine's "Home Rule" law, which makes clear the priority of local jurisdictions in most planning law.

(Home Rule doesn't abrogate the Lucas standard: Even Home Rule planning regulations may not be capricious, and must serve a clear public interest.)

Here's the news article on the Wisconsin matter:


Wisconsin Court Confirms Wind Farm Siting is Not a County Issue

In a decision that erases several local restrictive ordinances that
attempted to regulate wind energy at a time when the state legislature
is preparing to tackle siting standards itself, a court of appeals ruled
that local units of government (e.g., counties) do not have the power to
adopt such standards of general applicability for wind energy.

The case, Ecker Brothers v. Calumet County, involved two farmers who
challenged the county's right to pass more restrictive ordinances that
would prevent them from adding more wind turbines on their farm. The
court effectively ruled that the county's role is limited to considering
wind installations on an individual basis based on whether they are
legal under state health-and-safety regulations. The decision comes at a
time when the state legislature is working to come up with a policy for
the whole state.


"The ruling casts substantial uncertainty about wind energy regulation
in Wisconsin," said Curt Pawlisch, an attorney for RENEW Wisconsin. "In
order for the state to move forward with a balanced approach to
renewable energy growth, the legislature must pass uniform siting
standards. We urge the legislature to act quickly and pass uniform
siting standards when it returns in September."

SB 185/AB 256 directs the Public Service Commission of Wisconsin (PSCW)
to initiate an administrative rulemaking process to establish statewide
siting standards for wind energy projects. The bill draft requires the
PSCW to establish an advisory committee of diverse interests to advise
it on the rules. AB 256 was voted out of the Assembly Committee on
Energy & Utilities on a 10-2 vote last month and, like its Senate
companion, has strong bipartisan support, according to RENEW Wisconsin.
Moreover, it appears that the recent court decision strengthens the
bill's case.

"I think the [court decision] gives the bill even more momentum for
passage," said state Senator Jeff Plale.

"The court did more than simply declare Calumet County's wind ordinance
to
be unlawful," said Michael Vickerman, executive director of RENEW
Wisconsin.
"The court's decision also stripped away the legal foundation supporting
all
Wisconsin ordinances that contain blanket restrictions on wind projects.
The decision erases unreasonable local ordinances that effectively
prohibited any new wind development in this state for projects under 100
MW."

Vickerman said that SB 185/AB 256 would make the state "more attractive
to manufacturing and other supply chain businesses that create state
jobs. By establishing statewide standards for siting small and medium
sized wind farms, legislators can provide enduring economic opportunity
for Wisconsin."