9/7/09 What's eminent domain got to do with it? The PSC's Environmental Impact Statement for the Glacier Hills Wind Farm:
Now that the turbine siting reform legislation has passed and the Public Service Commission moves to create uniform siting guidelines for wind farms in our state, many of us who live in areas where wind farms have been proposed are wondering what will happen next.
A glimpse of the future for rural residents may be had by taking a closer look at the September 2009 Public Service Commission of Wisconsin’s final Environmental Impact Statement (EIS) for the proposed Glacier Hills wind farm in the Columbia County Towns of Randolph and Scott.
Background: Wisconsin Electric Power Company (WEPCO) proposes to build a new wind farm in the townships of Randolph and Scott in northeast Columbia County. The proposed facility is referred to as Glacier Hills and will be comprised of at least 90 industrial wind turbines, each approximately 410 feet tall. Currently the proposal calls for 1000 foot setbacks from non-participating homes. The image below shows the proposed turbine locations as red dots, and the non-participating homes that will be affected as small red squares in yellow circles. The yellow circles indicate the 1000 foot setback.
The project area consists of about 17,350 acres of predominately agricultural land in Columbia County. The village of Friesland lies within the project area, while the village of Cambria is just south and the village of Randolph just southeast of the project area.
WEPCO estimates the capital cost of the proposed Glacier Hills project, exclusive of an allowance for funds used during construction (AFUDC), to be between $335.2 million and $413.5 million, including up to 30% of the costs in the form of direct cash grants from the federal government.
The project would be owned and operated by WEPCO. WEPCO expects the proposed project to have a lifespan of 30 years. The average life used in economic analyses is 26 years.
On October 30, 2008, WEPCO submitted an application to the Public Service Commission of Wisconsin for a Certificate of Public Convenience and Necessity (CPCN)
Why is a CPCN so important and what happens when a CPCN is granted?
On Page 29 of the EIS we read:
WEPCO needs long-term easements for the land used by the wind turbines, access roads, and collector circuits. WEPCO has stated it intends to obtain easements from willing landowners. However, WEPCO could use the power of eminent domain if it is granted a CPCN by the Commission.
Let’s stop right there:
What is Eminent Domain?
Eminent domain refers to the power possessed by the state over all property within the state, specifically its power to appropriate property for a public use.
In some jurisdictions, the state delegates eminent domain power to certain public and private companies, typically utilities, such that they can bring eminent domain actions to run telephone, power, water, or gas lines.
In most countries, including the United States under the Fifth Amendment to the Constitution, the owner of any appropriated land is entitled to reasonable compensation, usually defined as the fair market value of the property. Proceedings to take land under eminent domain are typically referred to as "condemnation" proceedings.
The Process of Eminent Domain
Eminent domain law and legal procedures vary, sometimes significantly, between jurisdictions. Usually, when a unit of government wishes to acquire privately held land, the following steps (or a similar procedure) are followed:
* The government attempts to negotiate the purchase of the property for fair value.
* If the owner does not wish to sell, the government files a court action to exercise eminent domain, and serves or publishes notice of the hearing as required by law.
*A hearing is scheduled, at which the government must demonstrate that it engaged in good faith negotiations to purchase the property, but that no agreement was reached. The government must also demonstrate that the taking of the property is for a public use, as defined by law. The property owner is given the opportunity to respond to the government's claims.
* If the government is successful in its petition, proceedings are held to establish the fair market value of the property. Any payment to the owner is first used to satisfy any mortgages, liens and encumbrances on the property, with any remaining balance paid to the owner. The government obtains title.
* If the government is not successful, or if the property owner is not satisfied with the outcome, either side may appeal the decision.
There are several types of takings which can occur through eminent domain:
Complete Taking - In a complete taking, all of the property at issue is appropriated.
Partial Taking - If the taking is of part of a piece of property, such as the condemnation of a strip of land to expand a road, the owner should be compensated both for the value of the strip of land and for any effect the condemnation of that strip has on the value of the owner's remaining property.
Temporary Taking - Part or all of the property is appropriated for a limited period of time. The property owner retains title, is compensated for any losses associated with the taking, and regains complete possession of the property at the conclusion of the taking. For example, it may be necessary to temporarily use a portion of an adjacent parcel of property to complete a construction or highway project.
Easments and Rights of Way - It is also possible to bring an eminent domain action to obtain an easement or right of way. For example, a utility company may obtain an easement over private land install and maintain power lines. The property owner remains free to use the property for any purpose which does interfere with the right of way or easement.
Fair value is usually considered to be the fair market value - that is, the highest price somebody would pay for the property, were it in the hands of a willing seller. The date upon which the value is assessed will vary, depending upon the governing law. If the parties do not agree on the value, they will typically utilize appraisers to assist in the negotiation process. If the case is litigated, both sides will ordinarily present expert testimony from appraisers as to the fair market value of the property.
At times, fair value includes more than the price of an item of property or parcel of real estate. If a business is operating from the condemned real estate, the owner is ordinarily entitled to compensation for the loss or disruption of the business resulting from the condemnation. In a minority of jurisdictions, the owner may also be entitled to compensation for loss of "goodwill", the value of the business in excess of fair market value due to such factors as its location, reputation, or good customer relations. If the business does not own the land, but leases the premises from which it operates, it would ordinarily be entitled to compensation for the value of its lease, for any fixtures it has installed in the premises, and for any loss or diminishment of value in the business.
Ordinarily, a government can exercise eminent domain only if its taking will be for a "public use" - which may be expansively defined along the lines of public "safety, health, interest, or convenience". Perhaps the most common example of a "public use" is the taking of land to build or expand a public road or highway. Public use could also include the taking of land to build a school or municipal building, for a public park, or to redevelop a "blighted" property or neighborhood.
Abuses of Eminent Domain
In recent decades there has been growing concern about the manner in which some states and units of government exercise their power of eminent domain. Some governments appear inclined to exercise eminent domain for the benefit of developers or commercial interests, on the basis that anything that increases the value of a given tract of land is a sufficient public use. Critics respond that this is absurd, and that there are few properties, no matter how upscale, which could not be made more valuable if developed in a different manner. They also note that if a developer is unable to purchase the property on the open market, it is unlikely that the landowners will truly be offered the value of the property through condemnation proceedings. The governmental response to that point is that the law of eminent domain arose from the experience that some property owners are unwilling to negotiate a reasonable sale price, and such unreasonableness should not provide a basis to extort an above-market price or to prevent the completion of a public project.
For example, in one case a town wished to exercise eminent domain over a residential neighborhood, so that an upscale condominium development could be built on that land. To advance that goal, they defined any home within the neighborhood as "blighted" if it did not have three bedrooms, two bathrooms, an attached two car garage, and central air conditioning. The homeowners challenged the definition in court, and were ultimately successful in fighting the municipality's efforts to take their homes.
The PSC is now taking comments on the Glacier Hills EIS. If you'd like to comment on page 29 of the EIS which says WEPCO will have the power to use eminent domain if granted the CPCN, CLICK HERE
To review the entire docket for this project CLICK HERE and enter docket number 6630-CE-302.
The purpose of the final EIS is to provide the decision makers, the public, and other stakeholders with an analysis of the economic, social, cultural, and environmental impacts that could result from the construction and operation of the new wind electric generation facility.
It was prepared prepared by the Public Service Commission of Wisconsin (Commission or PSC) with input from the Wisconsin Department of Natural Resources (DNR) and the Department of Agriculture, Trade, and Consumer Protection (DATCP).
This final EIS will be a subject of the hearing to be held for the Glacier Hills project. The Commission’s decision to approve, modify, or deny ATC’s application for this project will be based on the record of the technical and public portions of the hearing.
SAVE THE DATE:
The public hearing will be held at 3:00 and 7:00 p.m. on November 4, 2009, at the Randolph Town Hall, 109 South Madison Street, Friesland, Wisconsin.
At the hearing, members of the public may testify about the project or the final EIS. In addition, written comments may be submitted in any of the following ways:
• Written comments submitted at the public hearing.
• Written comments submitted via the Commission’s ERF system by October 28, 2009. The form used to file comments electronically can be found on the Commission’s web page, http://psc.wi.gov/, by selecting the Public Comments button, then selecting Wisconsin Electric PowerCompany (WEPCO) Glacier Hills Wind Park, docket 6630-CE-302 from the list provided.
• Written comments may be submitted by mail by October 28, 2009, addressed to:
Docket 6630-CE-302 Comments
Public Service Commission of Wisconsin
P.O. Box 7854
Madison, WI 53707-7854
Members of the public who submit comments should understand that those comments will be included in the record on which the Commission will base its decision to approve, modify, or deny Wisconsin Electric Power Company’s application. As such, the comments are subject to objection during the hearing.
If objected to, the comments might not be admitted into the hearing record. Members of the public who have doubts about the admissibility of their comments should plan to provide oral testimony at the public hearing. All comments and a transcript of oral testimony will be posted to the Commission’s website as an open public record.
The public and technical portions of the hearing will satisfy the WEPA requirements of both the Commission and DNR. A Commission decision on the proposed project is expected January 2009.
Specific questions on the final EIS should be addressed to:
Michael John Jaeger
Public Service Commission
NOTE FROM THE BPWI RESEARCH NERD: You can help by reading over the EIS [download it by clicking here] and commenting on specific parts of it is one way for the PSC to understand what the concerns are of rural residents in our state. There is no limit to how many comments you can file. Supporting documents are always welcome.
Better Plan will continue to look closer at the Glacier Hills EIS in the up-coming days.