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Judge assigned to Forest lawsuit against PSC

By LeAnn R. Ralph

HUDSON — A judge has now been assigned to the Forest Town Board’s civil lawsuit filed in St. Croix County against the Public Service Commission of Wisconsin for the PSC’s approval of the Highland Wind Farm project.

The Honorable Edward Vlack was assigned to the case last week as a substitution judge.

The Honorable Howard Cameron had initially been assigned to the case on January 31, but attorneys representing the Forest Town Board immediately filed a request for a substitution of judge.

At issue is the PSC’s approval last year of the Highland Wind Farm project to build up to 44 wind turbines in the Town of Forest.

The substation for the wind farm would be located in the Town of Cylon.

In the civil lawsuit, the Forest Town Board is asking the court to overturn the PSC’s approval.

When the PSC reopened the Highland application last summer after denying the application earlier in the year, the Forest Town Board wanted to add testimony to the record, such as a suggestion to use smaller wind turbines in the project.

The Forest Town Board was not allowed to include certain testimony during the rehearing last summer because the issue was whether Highland could meet the noise limits set in PSC-128 using a method called curtailment that slows down the wind turbines or changes the pitch of the blades.

One issue in the town board’s civil lawsuit is the 50-decibel noise limit during the day and 45 decibels at night set by PSC-128.

The lawsuit alleges that PSC-128, which establishes the noise limits, went into effect in March of 2010, shortly after Highland filed the application with the PSC.

PSC-128 did not go into effect until March 16, 2012.

Initially, Emerging Energies had been working with the Forest Town Board to obtain permits to build a 97-megawatt wind farm.

The former town board members were removed from office during a recall election in early 2011, and the new town board approved motions to revoke all of the permits that had been issued.

Highland then increased the size of the project to 102.5 megawatts so that it fell under the jurisdiction of the PSC rather than the Forest Town Board.

Highland submitted an application with the PSC in December of 2011 about four months prior to PSC-128 going into effect.

Residential

In the 25-page petition for judgment, the Forest Town Board alleges that the Highland project would consist of between 41 and 44 of “the largest wind turbines installed in a residential area in the United States.”

In Highland’s response to the Forest petition, Highland denies that the wind turbines would be installed in a residential area.

At the time Highland submitted the application to the PSC, the Town of Forest was not zoned, so no residential zoning classification existed in the township.

The Town of Forest’s Smart Growth Comprehensive land use plan, which is not zoning, indicates that most of the township is agricultural or agricultural/residential with a commercial district along state Highway 64 in the hamlet of Forest.

Curtailment

In the petition for judgment, the Forest Town Board argues that the PSC cannot legally have jurisdiction over the Highland project because if curtailment is used to slow down the wind turbines, the project would fall below the 100 megawatt limit over which the PSC has jurisdiction.

In another part of the petition for judgment, the Forest Town Board states that the curtailment methods have never been used and there is no evidence that the wind turbines could be slowed down or the pitch of the blades changed to reduce noise.

Highland voluntarily agreed to curtail the wind turbines to 40 decibels at night in the vicinity of six residences that have been identified as being occupied by people with medical conditions that could potentially be made worse by exposure to noise.

The PSC identifies the medical conditions as “self-reported.”

The Forest Town Board’s petition for judgment refers to the wind turbines subjecting township residents to “loud noise.”

PSC-128 sets the daytime noise limit at 50 decibels.

A computer hard-drive operates at between 40 and 50 decibels. A refrigerator or a person talking in a normal voice is about 50 decibels.

Whispering is in the 40-decibel range.

Evidence

The petition for judgment indicates in several places that the Forest Town Board and a concerned citizens’ group called the Forest Voice presented evidence and testimony before the PSC on various issues.

In Highland’s response to the lawsuit, it is noted that the Forest Town Board and Forest Voice are often referring to briefs that were filed.

A legal brief is not evidence or testimony, but rather, is a written document submitted to a court containing arguments about why the party in question believes that it should win the case.

Smart Growth

The Forest Town Board also argues that while the township’s Smart Growth plan approved in December of 2009 after following the public-participation procedure required by state law supported renewable energy, such as wind energy, the Smart Growth plan did not mean support for a large-scale wind farm.

The current town board and the township’s plan commission approved an updated version of the comprehensive plan late last year that removed support for renewable energy, particularly wind energy, and also removed language supporting the Right to Farm.

The new version of the comprehensive plan supports residential development and indicates that the new bridge at Stillwater will make it easier to commute to the Town of Forest.

A concerned citizens group called Preserving Rural Values, Inc. alleges that the town board and the plan commission failed to follow the public-participation procedure required by state law to update and amend Forest’s comprehensive plan.

Legal fees

As a party in the civil lawsuit that would be directly affected by overturning the PSC’s approval of the Highland project, Highland is asking that the PSC’s decision be affirmed, that the Forest Town Board’s petition for judgment be dismissed, and the court should order the Town of Forest to pay Highland’s legal fees.

The PSC’s response to the civil lawsuit filed by the Forest Town Board is about a dozen pages long and considers the town board’s petition by paragraph number and either indicates that the allegations are denied or that the PSC’s final decision on the Highland application speaks for itself.

The Town of Forest is represented by Marcel Oliveira of Reynolds & Oliveira LLC out of Madison.

The PSC is represented by John J. Lorence of Madison.

Highland is represented by Michael Screnock of Michael Best and Friedrich LLP out of Madison.

No court hearings have yet been scheduled in St. Croix County for the Town of Forest’s civil lawsuit.

The Forest Town Board has spent about $400,000 so far on legal fees and expert witnesses to fight against the Highland project.

During the June 21, 2013, PSC meeting, the Forest Voice filed a request with the PSC for money to help them with their case in the amount of $199,605.

The Forest Voice also filed a supplemental request for intervenor compensation in the amount of $37,350.

The PSC modified the request and awarded $32,000 in supplemental intervenor compensation for the Forest Voice to participate in the reopening of the Highland Wind Farm application last year.

The Wisconsin Legislature created the intervenor compensation program in 1983 so that financial assistance would be available for individuals or organizations who wished to intervene in a PSC proceeding.