Town of Forest loses district court appeal in wind farm case
MADISON — 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 turbines would tower more than 400 feet across predominantly agricultural land spread over a 26,550-acre project boundary in the towns of Forest and Cylon.
The town of Forest has been contesting the $250 million project since Emerging Energies sought approval for it in 2011. The project was sold in February 2017 to Leeward Renewable Energy, LLC, of Dallas.
The long legal battle includes the PSC initially rejecting the project in 2013 finding that it would exceed the nighttime noise limit. The PSC subsequently reopened the case after Highland proposed slowing the speed of turbines near affected residences, called the curtailment plan, to a nighttime noise level below state code. The town objected but the PSC approved the project. The agency found that a curtailment plan would reduce nighttime noise measured at six affected residences 95 percent or more of the time, a standard the PSC said would comply with the nighttime noise regulations.
The town appealed that decision, and although Vlack largely upheld it, he returned the case to the PSC in 2013 with orders to hold a hearing on whether 95 percent compliance was an acceptable standard. Vlack also required the PSC to explain why it applied the lower nighttime noise limit to only six residences and not 11 additional residences also deemed affected but weren't included.
The PSC took public comments on the issues Vlack identified and received more than 130 during a 30-day span.
The PSC then removed the 95 percent compliance standard and said it would address any noise complaints at the time they are alleged.
The PSC also found that Highland was not required to comply with noise levels below state regulations for the six or the additional 11 residences identified as sensitive to turbine noise.
The PSC said it was not required to hold a public hearing on the 95 percent compliance standard as it decided not to implement it.
That set up the grounds for the town appeal decided in Thursday's ruling. The town contended the PSC misapplied the curtailment standard and it asked that the PSC be held in contempt of court for failing to hold public hearing that Vlack had ordered.
In late, 2016, Vlack dismissed the town's contempt request and its appeal regarding use of the 95 percent curtailment standard, finding that the issue had previously been decided.
The town appealed Vlack's rulings but on Thursday the appeals court agreed with Vlack, concluding that the PSC was not in contempt for failing to hold a public hearing and the nighttime noise issue as it pertained to the affected residences had been previously ruled upon.
"Judicial efficiency and judicial rationality did not support holding the PSC in contempt for failing to hold a hearing regarding the 95 percent compliance standard," according to the 20-page opinion.
The appeals court also concluded that the town wouldn't get another chance to challenge the 95 percent compliance issue.
"Highland's (construction) application ... included curtailment as part of its compliance plan from the beginning. Nothing prevented the Town from raising the same argument regarding curtailment in (Vlack's 2013 decision) that it attempted to raise in its present (appeal)," according to the opinion.
Town Chair Jaime Junker declined to comment on the opinion Friday or the possibility of further appeal of the suit.
Rob Benninghoff, of Leeward Renewable Energy, said the firm was waiting until the case is finally over before beginning any construction activity.
"We weren't a party to this suit and technically, the town could seek to appeal it to the state supreme court. We'd just like to see it resolved," Benninghoff said.
If the case is concluded in Leeward's favor, the company wants to meet with the town officials and residents about the project and then work out an agreement with Midcontinent Independent System Operator to connect Highland to the transmission grid, Bennington said.
The wholesale market for electric power is healthy today, he added.
"I'd say it's pretty good with the increased interest and demand for energy produced from renewable sources," he said.