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Two lawsuits over one project

Two lawsuits have been brought over a project proposed by Madison Gas & Electric (MG&E) near the town of Stockbridge, one filed by the proponents of the wind farm and the other filed by its opponents. This article covers the intricate details of the case, which has its beginnings in September 1998.

Not in my backyard opposition to wind plant is not new in Wisconsin. The fallout from a previous wind power siting struggle is still being felt: two lawsuits have been brought over a project proposed by Madison Gas & Electric (MG&E) near the town of Stockbridge, one filed by the proponents of the wind farm and the other filed by its opponents.

The wind farm was scuttled when the Town of Stockbridge issued a moratorium in September, 1998 on construction of "towers or other structures over 100 feet in height and located along and on the Niagara Escarpment." MG&E attorney Richard Nordeng says the moratorium was "tailored specifically to prevent construction of the wind farm -- supposedly for an interim period while they evaluated other ordinances -- though they knew full well that the practical effect of the moratorium was to prohibit the project."

The first suit, by the project's opponents, was filed in early 1999 at the Calumet County circuit court in Chilton. It alleges that the state Public Service Commission improperly granted construction authority for the project, since it did not complete a thorough environmental impact analysis, especially on the effects of the wind farm on birds and bats. William Engler, a local attorney, is apparently the major driver behind the suit. Engler is the former owner of a large birdseed company who owns property that overlooks Lake Winnebago near the proposed wind site. The land is valuable for future housing development.

Nordeng thinks Engler's suit is without merit. "The commission is not required to assure there is maximum and complete study of every effect before they approve a project," he says. "They just need to make a reasonable interpretation." In approving the construction permit, the commission had reviewed the literature on avian mortality and ordered a study of the effects of the wind farm on birds after it was built. Final briefs were submitted June 15 and Judge Donald Poppy is expected to rule on the case by December.

While Nordeng thinks the Stockbridge ordinance is invalid and asked the judge to overturn it, the issue is only peripheral to the case and the judge may or may not rule on the ordinance. Nonetheless, MG&E does not intend to challenge the ordinance further.

The ordinance, however, is key to the second lawsuit, filed by the two landowners who would have hosted the project. They say Stockbridge acted beyond its authority, and violated state statutes by basing the moratorium on aesthetics and effects on land values. Under state statute, towns may only block wind projects based on public health and safety issues.

After the moratorium, MG&E moved on to Kewaunee County, where it received permits and constructed an 11.2 MW wind farm earlier this year (Windpower Monthly, January 1999). The Stockbridge landowners, who had negotiated land leases with MG&E, allege in their suit that they lost money when the project was blocked, and are now suing the town for loss of $1,195,931.

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