Regulators that limited government intrusion in wind turbines failed to consider housing effects, a realty trade group told the Wisconsin Supreme Court on Thursday.
The Wisconsin Realtors Association is the lead plaintiff in the action over PSC 128, the Public Service Commission of Wisconsin’s answer to the demand for uniform regulations defining what local governments could require of wind energy systems.
With the commission finding “insufficient evidence” of negative effects by wind turbines on nearby property values, it proposed a rule preventing the requirement by local governments of setbacks greater than 1,250 feet, among other regulations, according to a case summary from the court’s public information office.
PSC 128 took effect on March 16, 2012, after the rule’s approval from the Wisconsin Legislature. The lawsuit by the Wisconsin Realtors Association (WRA) followed in June.
Saying the commission skipped a crucial step in promulgating the rules, the WRA cites the failure to obtain a housing-impact report on wind turbines from the then-Department of Commerce, the functions of which are now housed in the Department of Administration.
Without that report, the Legislature was incapable of making an informed decision about the wind turbine regulations, von Briesen & Roper attorney John Kassner argued on behalf of the WRA.
“They can’t decide whether housing, and the people who live in that housing, would pay that price if they don’t even know what that price is,” Kassner told the court.
But Cynthia Smith, chief legal counsel for the commission, told the court that her organization heard testimony and read research on the effects of wind turbines on property values during the three-year process of passing the rules.
A question several judges posed Thursday echoed the commission’s defense: that the WRA failed to mention a housing-impact report in the three-year development process of the rule.
Indeed, the record shows that no party in the process asked for the report, including the reviewers in the Legislative Council.
“Surely that learned staff there would have at least raised the question, but they didn’t,” Smith told the court.
Kassner countered that the statute makes no mention of such a requirement. He said it is the responsibility of the agency promulgating the rules to obtain the report.
Justice Patience Drake Roggensack questioned the commission’s decision not to order the report in the interest of being thorough.
“Why not just wear a belt and suspenders and get the report suggested in 227.115?” she asked.
Smith replied that the move would likely have been circular. The commission had been doing research for months before sending the rules to the Legislature, so a report by the Department of Commerce or Administration would likely have drawn on the commission’s conclusions, she said.
Justice Patrick Crooks found it significant that the legislators themselves never asked for a report after reviewing the research.
Kassner posited that some legislators did not want a report detailing the effects of wind turbines on housing – they wanted the rules to pass, and knew a report would support the WRA’s assertion that wind systems negatively affect housing.
Justice Annette Kingsland Ziegler expressed a similar sentiment.
“It’s a stretch for me to say that wind turbines don’t affect housing,” Ziegler said.
Smith emphasized the importance of having peoples’ feelings and perceptions translated into data on property values. The commission’s findings show they do not, she added.
After the hearing, Smith declined to comment other than saying her team will “anxiously await the court’s opinion.”
Kassner said the goal of the lawsuit is to strengthen the rule requiring an impact report on projects that will affect housing; such a report, he said, has never once been filed on any project since the requirement was codified in the 1995-96 legislative session.
“We’re trying to make agencies comply, but it’s a little difficult,” Kassner said after the hearing. “We’re hoping this will make a difference.”
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