Agenda - Planning Commission - 11/06/2014

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Zoning Bulletin September 25, 2014 I Volume 8 I Issue 18 The Seventh Circuit has jurisdiction over Illinois, Indiana, and Wisconsin. SEVENTH CIRCUIT (WISCONSIN) (02/10/11)—This case ad- dressed the issue of whether a town board's delay in granting an applica- tion for building permits violated the developer's right to substantive due process. The Background/Facts: CEnergy-Glenmore Wind Farm #1, LLC ("CEnergy") sought to build a wind farm in Glenmore, Wisconsin (the "Town"). In 2007, CEnergy's predecessor in interest, Prelude, began the process of attempting to develop the wind faun. Prelude contracted with a family in Glenmore to build a wind farm on the family's property. In 2007, Prelude obtained a conditional use peiiiiit ("CUP") from the Town to develop the wind farm. Then, in 2009, Prelude contracted with the Wisconsin Public Service Corporation ("WPS") to sell wind turbine -generated electricity for 20 years at specified rates. Preludes contract with WPS was subject to Pre- lude obtaining all necessary permits by March 1, 2011. In September 2010, Prelude learned it would also need building permits for each of its seven planned wind turbines. Prelude submitted applications to the Town Board. The Board refused to accept the applica- tions unless Prelude provided all requested information. Prelude provided all requested information by December 31, 2010. At that time, Prelude advised the Town Board that it needed the building permits to be ap- proved by March 1, 2011, in order for the power purchase agreement with WPS to take effect. In December 2010, CEnergy agreed to purchase Prelude's assets, including the right to develop the wind farm. The sale closed February 2011. In the meantime, public sentiment in Glenmore grew against the wind farm project. Town Board members were receiving threats to their phys- ical safety should they approve the project. Purportedly because the Town's attorney needed more time to review the information related to the building permits, the Town Board did not take up the issue of the building permits until March 7, 2011. The Town Board then voted to approve the building permits. However, the Town Board rescinded that vote after citizens at the meeting became "accusa- tory and threatening." A week later, the Town Board reinstated the vote in favor of granting the peiiuits. That vote came too late for CEnergy, as WPS had backed out of the power purchase agreement on March 4, 2011, citing the March 1, 2011 deadline to obtain necessary permits. CEnergy then sued the Town. It claimed that it had "vested property rights granted to it in the CUP and the requested building permits." It fur- ther claimed that the Town Board's failure to take action on the building © 2014 Thomson Reuters 3