MADISON – A Wisconsin appeals court upheld the state’s wind turbine construction rules Tuesday, saying they’re valid even though regulators didn’t develop a report on how the regulations would affect the housing industry.
The Public Service Commission in March 2012 implemented rules establishing uniform limits on sound levels and shadow flicker, minimum distances between homes and turbines and other construction standards. The Wisconsin Realtors Association, the Wisconsin Builders Association and the Wisconsin Towns Association filed a lawsuit in Brown County challenging the regulations that June.
They argued Wisconsin law requires the state to produce a report on rule proposals that would directly or substantially affect the housing industry. The siting rules directly affect housing since they require turbines be set back certain distances from homes and impose limits on noise and shadow flicker, the associations contended. The PSC decided no such report was needed, rendering the rules invalid, they maintained.
But Circuit Judge William M. Atkinson ultimately ruled in the commission’s favor last year, finding no report was necessary. The 3rd District Court of Appeals agreed with him on Tuesday.
Appellate Judge Lisa K. Stark wrote in the court’s 12-page opinion that the PSC considered voluminous evidence about turbines’ effects on housing, including a report from its own wind siting council, other states’ regulations, expert testimony and public comments, and reasonably concluded the machines don’t hurt residential property values. Based on that finding, the commission could reasonably conclude that the rules don’t directly or substantially affect housing development, construction, cost or availability, negating the need for a report, Stark wrote.
She went on to note that state rules come with a presumption they’re valid and were drafted properly. The associations failed to show any evidence rebutting that presumption, the court said.
The associations’ attorney, listed in online court records as James Kassner III, didn’t immediately return a telephone message Tuesday.
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