Better Plan, Wisconsin

VILLAGE OF CASCADE FACING LAWSUIT OVER OPEN MEETINGS VIOLATIONS

Written by Eric Litke,

SOURCE www.sheboyganpress.com

November 15, 2011

Cascade officials were more than happy to talk publicly about their two wind turbines last summer, when the 120-foot generators made the village the first in the state to power its wastewater treatment plant solely by wind.

But one resident says village government was too quiet in the months leading up to construction, alleging in a lawsuit that the seven-member board violated state open meetings law by repeatedly discussing the $500,000 expenditure using vague agenda items that gave residents no warning or chance for input.

Susan Lodl, 60, of Cascade, filed the lawsuit in November 2010, and her effort garnered some judicial backing last month when Sheboygan County Circuit Court Judge Terence Bourke ruled there was enough evidence to proceed toward trial on the core allegations.

Lodl said she didn’t set out to sue the village that has been her home since 1974, but she was left with no recourse when the board responded to her initial objections with indifference and even hostility.

“A number of us started going to meetings, and we were treated quite rudely. A friend of mine was even called names,” she said. “I even told them at one of the board meetings, ‘Your agenda and your minutes do not coincide.’ And they just kept doing their thing. … They just blew me off as a disgruntled village resident.”

So Lodl decided to take a stand.

“It’s been a haul, let me tell you. It’s been very hard, very time consuming and nerve-wracking and hard for some common Joe Citizen to do this,” she said. “I (hope) the Village Board — and I’m hoping other municipalities — will learn from this that they have responsibilities to their constituents to be specific on what they’re going to do and vote on at meetings, and they have to abide by the laws that govern them. The public has a right to know.”

‘Their meetings have been a sham’

The lawsuit alleges an array of open meetings law violations from November 2008 to February 2011, but the wind turbines are at the heart of Lodl’s concerns.

The pair of 100-kilowatt generators went into service in June 2010 next to the wastewater treatment plant, located on Bates Road on the east side of the village. Cascade received $400,000 in grants but still had to borrow about $500,000 to finish the project.

The turbines were projected to save $30,000 in electricity annually and generate additional power for sale to WE Energies, meaning they should pay for themselves in about 12 years, officials said at the time. The Sheboygan Press filed an open records request Nov. 4 seeking documentation on the cost and savings to date, but the village has not yet responded.

Lodl, who lives just over 1,000 feet from the turbines, was unaware of the project until the village sent a letter in May 2009 advising residents of a special meeting. By then, she said, the time for input had clearly passed.

“Our president informed me and everyone else sitting in the room, that yeah, this was basically a done deal,” said Lodl, who was on the Village Board about 10 years ago. “We’ve been sold a bill of goods all the way down. This was planned. They had this thing staked out. Their meetings have been a sham.”

When Lodl objected to the lack of prior notice, she said one board member “very snidely turned and said, ‘It’s your responsibility to go to the meetings, and everything is posted on the agendas.’” So Lodl looked back at those agendas, and what she found — allegedly — were meetings where the turbines and other topics were discussed with little or no mention on the agenda.

The lawsuit, filed Nov. 11, 2010, names as defendants the Village of Cascade, the Village Board, the village’s Sewer and Water Committee, Village President David Jaeckels, Village Clerk Sherry Gallagher, the six village trustees, one former trustee and one other citizen who sits on the sewer committee. An amended complaint was filed March 10 that contains a total of 19 purported violations.

Meetings cited in the complaint include a Feb. 10, 2009, board meeting where a discussion about purchasing the wind turbines and land took place under an agenda heading of “sewer and water — 2nd well / facility plant update.” Similar discussions occurred under the same heading April 14, 2009, the same day the board declared the meeting was a public hearing regarding floodplain and shoreland ordinances even though the agenda made no mention of a public hearing, the complaint said.

On March 10, 2009, the sewer committee discussed hiring a consultant for the turbine project without any mention in the agenda. The committee also discussed the appraisal and purchase of property for the wind turbine without agenda notice on May 12, 2009.

The board also discussed a truck purchased in January and February 2009 although there was no mention of the truck on the agendas.

Judge rules lawsuit has merit

The village claimed in court filings that the agendas were sufficient because items discussed without notice were listed in previous agendas, meaning residents had sufficient notice that the issues would be discussed at some point. Judge Bourke rejected that claim.

“Looking at other agendas to understand what’s in a particular notice I don’t believe would reasonably apprise an individual of what was going on at that particular meeting,” Bourke said.

Raymond Pollen, an attorney representing the village in the lawsuit, would not elaborate on the village’s defense in an interview last week.

“I think the village has a long history of trying to prepare agendas that completely and accurately communicate what they’re going to be talking about,” Pollen said. “I think they tried to do that here.”

The village made a motion for summary judgment — asking Bourke to rule in their favor without going to trial — and on Oct. 18 Bourke ruled the wind turbines and the truck objections were sufficient to go to trial.

“I believe there’s a genuine issue of fact for trial regarding those allegations,” Bourke said, according to a court transcript. “If I had appeared in Cascade at that particular time and I was unfamiliar with the issues going on in the village, I would not know what the notice meant.”

Bourke ruled Lodl’s complaint was not sufficient in its objections to numerous discussions from 2009 to 2011 under vague headings such as “committee reports,” “old business,” “new business” and “letters.” He then dismissed 10 of the 19 counts in the amended complaint.

“Those counts (that remain) really address the issues that were most dear to my client,” said Matthew Fleming, Lodl’s attorney. “The other things we just kind of threw in there to address what we thought was a pattern of not living up to what the open meetings law required.”

State statute says “every public notice of a meeting of a government body shall set forth the time, date, place and subject matter of the meeting … in such a form as is reasonably likely to apprise members of the public and the news media thereof.”

A brief filed by the village said Village Board and committee members were not aware general topic headings “may not be sufficient to give public notice under all circumstances” and did not intend to violate open meetings requirements. It said the village has since changed its procedures to provide more specific notice.

Fleming noted in a reply brief that state statute does not allow ignorance of the law as a defense and that the village’s response “implicitly admitted” to violating the law.

“Intentional or not, the village has at least been willfully negligent in how it noticed its meetings,” Fleming’s brief said. “Because of its shoddy practices, two wind turbines were all but approved for purchase for use across from Ms. Lodl’s home before she or many other concerned members of the public ever knew about the plans.”

Lodl open to resolving case

Lodl’s complaint said she is asking that each defendant be ordered to pay a forfeiture of $25 to $300 for each violation, and Lodl is seeking reimbursement for her court costs and any other payments “as the court deems just and equitable.”

But Lodl and her attorney said they may settle for simply better government.

“The real goal here is to get the village to start following the open meetings law the way they should and give better notice on their public meeting notices,” Fleming said.

Added Lodl: “They have to change and they have to start learning things and they have to start conducting their meetings differently.”

To this point, however, Lodl said her objections and her lawsuit have been met only with enmity.

“The village president won’t even acknowledge me standing next to him in a public building,” she said. “Now we go (to meetings) and they just glare at us — just glare. You do not feel welcome, and that’s sad.”

Pollen, the village’s attorney, said he was unaware of any proposed settlement but would be happy to pass word to the village.

“I’m encouraged … that Mrs. Lodl and her counsel are looking at alternatives to continuing the litigation, and I hope that they will be able to speak with me so that I can communicate that back to the village,” he said. “That’s a very positive thing.”

Pollen said his firm has so far accumulated $33,500 in legal fees from the case, costs that have been billed to the village’s insurance company, Rural Insurance.

Village officials refused to discuss the case, so it was not clear what deductible, if any, the village has been responsible to pay.

NEXT STORY

From Illinois

BEEF UP LAW; END TRESSPASSING BY WIND FARM CREWS

By the Sauk Valley Media Editorial Board,

SOURCE www.saukvalley.com

November 16, 2011

It’s bad enough when poachers or irresponsible hunters trespass on a farmer’s property. But when a wind farm company is alleged to have done the trespassing, that’s worse.

A Compton farmer, Gale Barnickel, told the Lee County Zoning Board of Appeals recently about his beef with contractors building Goldwind USA’s 71-turbine Shady Oaks wind farm in eastern Lee County.

Barnickel told board members that wind farm construction crews had repeatedly trespassed on his family’s property. Transit of construction equipment over farmland caused crop damage, he said.

Barnickel posted signs that prohibited trespassing at various places along his property line. Workers who entered the property should have been aware of what they were doing.

After all, what part of “no trespassing” would they not understand?

According to a Goldwind spokesman, the whole situation was a mistake. The contractor apologized to Barnickel, and the contractor took “concrete steps” to clearly mark the farmer’s land so no further trespassing would occur.

But, as the saying goes, it’s like closing the barn door after the horse ran away.

Goldwind and its contractor should have had a better plan in place to avoid trespassing on a non-participating farmer’s land.

Barnickel filed two reports with the Lee County Sheriff’s Department about the trespassing incidents. He decided not to file any more, as they apparently weren’t doing any good, and he wanted to avoid wasting taxpayers’ money.

The whole situation should be a wake-up call to county governments near and far – especially in Whiteside and Ogle counties, where new wind farms are contemplated.

Are there strong enough trespassing laws in place to keep wind farm construction crews in line?

Are enforcement provisions ready so that if construction crews trespass, authorities can mount a swift and effective response?

Are the fines large enough to discourage construction crews from ever entering private property unless they are absolutely certain it belongs to a participating landowner?

Farmer Barnickel stated: “It’s nerve-wracking being pushed around. Why should I have to put up with that?”

He shouldn’t.

Neither should anyone else.

Goldwind spokesman Colin Mahoney said his company was committed to minimizing the impact of wind farm construction.

We think area counties should strengthen their ordinances so landowners are better protected when wind farm companies stray from such commitments.

FROM WISCONSIN:

WE ENERGIES CANCELS RENEWABLE AID PROGRAM

READ ENTIRE STORY HERE: Journal Sentinel, www.jsonline.com

May 13, 2011

By Thomas Content

We Energies is canceling a program that funded small-scale renewable energy development, including projects that resulted in solar power being generated at GE Healthcare and smaller projects at churches and nonprofits such as the Urban Ecology Center.

The utility announced on its website Friday that it has decided to terminate its Renewable Energy Development programs.

The utility had committed in 2002 to spending $6 million a year on renewable energy development initiatives but has decided to end that program, utility spokesman Brian Manthey said.

The company is no longer offering grants for nonprofits and will continue education and training programs “until committed funds are depleted,” the utility’s message said.

The announcement came weeks after the company reported record quarterly earnings and the same month that the utility plans to file a plan to increase rates for its electricity customers next year. The utility’s customers have seen bills rise by more than 5% this year, with a typical residential customer now paying $105 a month for electricity.

The power company said its decision is based on its increased investment in building renewable energy projects to meet the state’s 10% renewable energy target. Total spending in renewable energy, including two large wind farms and a portion of its investment in a $255 million biomass power plant in north-central Wisconsin, will exceed $800 million by the end of this year, Manthey said.

“There’s an awful lot going from customers to pay for renewable energy both for the projects as well as funds for the Focus on Energy program,” he said.

Focus on Energy is a statewide initiative funded by utility ratepayers that provides incentives for energy efficiency and renewable energy.

The utility’s $800 million estimate includes $120 million that would be spent this year on the biomass project the utility has proposed to build in north-central Wisconsin. As of Friday, however, the utility had not decided whether to build that project because it and Domtar Corp. were still reviewing whether they can accept conditions imposed by the state Public Service Commission that aim to bring down the overall cost of the project to customers.

A leading state renewable energy advocate said Friday that We Energies was backing away from a $60 million commitment with only about half of the money collected.

Renew Wisconsin, a group that worked with We Energies and other groups on a renewable energy collaborative, agreed not to object to the utility’s plan to build new coal and natural gas-fired power plants as part of that commitment, said Michael Vickerman, executive director.

“We looked at it as a commitment. They looked at it as a commitment, until a couple days ago,” Vickerman said of We Energies. “Now that the coal plant is up and running, it appears that the program has outlived its usefulness to We Energies.”

The 12.7% profit the utility earns on its investment in the $2.38 billion coal plant has been a key driver in record profits the utility reported in 2010. With the second unit of the coal plant completed in January, 2011 will be another record year for Wisconsin Energy Corp.

To Vickerman, the announcement is the latest in a string of setbacks for efforts to develop homegrown renewable energy and stem the flow of energy dollars out of the state. That includes Republican Gov. Scott Walker’s proposal to make it more difficult to build wind farms in the state and a GOP-sponsored bill to be considered in the Legislature next week that would allow utilities to import hydro power from large dams in Manitoba to meet the state’s renewable energy mandate.

Manthey, of We Energies, says circumstances have changed since its commitment, including the 2006 state law that requires 10% of Wisconsin’s electricity to come from renewable sources by 2015.

The utility says its projects are a significant investment in the state’s economy. When completed later this year, the Glacier Hills Wind Park in Columbia County will be the state’s largest wind farm, and its Blue Sky Green Field project is the second biggest renewable project in the state, Manthey said.

A recipient of funding from We Energies was disappointed with the utility’s decision. We Energies provided $30,000 toward a $160,000 solar and energy efficiency project at the Unitarian Universalist church on Milwaukee’s east side, said Tom Brandstetter, who led the project.

Without the utility’s help, completing the project “would have made it much more difficult,” he said.

Plus, he said, the program helped the utility’s image that it was committed to green power at a time when it was building new coal plants. “We’re going in the exact opposite direction that we need to,” Brandstetter said.

Manthey said the utility’s shift on the renewable energy development program would have no impact on its Energy for Tomorrow initiative, a green-pricing program under which certain utility customers agree to pay more on their monthly electric bills to support renewable energy.

By the end of the month, the utility is expected to file a detailed plan with state regulators to raise bills in 2012 and again in 2013. The funding plan would pay for the wind farm now under construction northeast of Madison as well as environmental controls being installed at the original Oak Creek coal plant.

FROM AUSTRALIA:

WIND TURBINE SYNDROME

READ FULL STORY AT THE SOURCE: ABC1, hungrybeast.abc.net.au

May 11, 2011

Wind energy supplies approximately 2% of Australia’s overall electricity needs. The Waubra Wind Farm in rural Victoria is one of Australia’s largest wind farms and home to 128 wind turbines. As farmers Carl and Samantha Stepnell discovered, living near wind turbines can sometimes result in unexpected consequences.

To read more about Carl and Samantha’s story, a full transcript from the Ballarat Public Hearing of the Senate Inquiry into The Social and Economic of Rural Wind Farms can be read and downloaded here: “Health effects of living close to the Waubra wind turbines”.

FROM OKLAHOMA:

GOVERNOR SIGNS EMINENT DOMAIN LAW TO PROTECT LANDOWNERS FROM WIND FARM THREAT

READ FULL STORY AT THE SOURCE: The Oklahoman, www.newsok.com 14 May 2011

“The Southern Great Plains Property Rights Coalition supports any legislation which will help landowners protect their property now and for future generations,” the group said Friday. “We feel this is a step in the right direction since the use of eminent domain for profit is becoming a hot topic.”

Gov. Mary Fallin has signed into law an eminent domain measure that protects rural landowners from the threat of companies looking for locations to build wind turbines.

The bill’s author, Sen. Ron Justice, of Chickasha, said wind power provides a tremendous boost to the state’s economy, but he said it is important to protect landowners’ rights.

The law was heralded by a northwest Oklahoma property owners group.

“The Southern Great Plains Property Rights Coalition supports any legislation which will help landowners protect their property now and for future generations,” the group said Friday. “We feel this is a step in the right direction since the use of eminent domain for profit is becoming a hot topic.”

The law prohibits use of the power of eminent domain for the siting or erection of wind turbines on private land. It says landowners have the right to decide whether they want turbines on their land.

Justice said Senate Bill 124 was requested by landowners who were approached by wind industry representatives who mentioned the possible use of eminent domain.

Jaime McAlpine of Chermac Energy Corp. said wind developers and utility companies helped craft the bill’s language.

FROM ONTARIO:

ONTARIO GREEN ENERGY PROJECT COULD KILL, HARM AND HARASS ENDANGERED SPECIES

READ ENTIRE STORY AT SOURCE: National Post, nationalpost.com

May 13, 2011

By Sarah Boesveld

A Toronto-based wind energy company will have the legal right to “kill, harm and harass” two endangered species if Ontario approves their permit to build over the creatures’ habitat on the shores of Lake Ontario.

Gilead Power Corporation is proposing a green energy project in Prince Edward County, home of the Blanding’s turtle and the whippoorwill. The area where the endangered turtles rest is also considered an “important bird area.”

The project is a complicated one that carries a certain kind of irony for environmental activists who largely approve of green energy projects but have a mandate to protect wildlife in their natural habitats. Ontario Nature, an organization that “protects wild species and wild spaces through conservation, education and public engagement,” said sometimes good projects are proposed in areas that compromise the well being of animals. This is a clear example, said director of conservation and education Anne Bell, who stresses Ontario “absolutely needs wind” to help battle climate change.

“We’re totally supportive of wind, but at the same time, you can’t be putting up projects in the middle of areas where you know there’s going to be a significant ecological impact. It doesn’t make sense,” she said. “It’s not green. It’s green that’s not green.”

The organization has been speaking with interested parties about the project “for a long time,” their attention first drawn to it by the local conservation group Prince Edward County Field Naturalists.

The company’s plans are so far at a standstill, as it must first earn the permit from the province that clears the way for construction — construction that would involve clearing away grasslands and marshes in order to build the towers.

“For the most part, we can find ways to mitigate around endangered species reasonably, so that the species continues, and continues to thrive,” said Ontario Natural Resources minister Linda Jeffrey.

The whippoorwill, widely referenced in North American folk songs and literature, was listed as a threatened species by the Committee on the Status of Endangered Wildlife in Canada in 2009. Blanding’s turtle is protected under the Ontario Provincial Policy Statement of the Planning Act and is also protected federally.

FROM OREGON:

BPA SAYS IT WILL TAMP DOWN WIND FARMS WHEN TOO MUCH POWER FLOODS THE SYSTEM

READ ENTIRE STORY AT THE SOURCE: The Oregonian, www.oregonlive.com

May 13, 2011

By Ted Sickinger,

The Bonneville Power Administration will rein in the wind, and is likely to reap the legal whirlwind.

In a decision that speaks to the region’s ability — or inability — to effectively manage all the simultaneous wind and water energy being generated in the Columbia Gorge, the Bonneville Power Administration said Friday it will pull the plug on wind farms at times when excess generation threatens to swamp the system’s ability to handle it.

That could come early next week, as spring runoff increases hydroelectric generation, the agency said.

BPA’s decision is almost certain to trigger litigation from wind farm operators, including independent producers and utilities — whose projects won’t generate expected financial returns. They depend on turbines running flat out when the wind blows to generate not only power, but the renewable energy and tax credits that make up a sizeable slice of their revenue stream.

Wind operators say BPA’s plan, which would unilaterally override their transmission contracts, is discriminatory and designed to protect the agency’s surplus power sales revenue. That revenue goes to lower the rates of the 140 public utilities who buy their power from the federal agency.

“This is a very loud and unmistakable signal to the wind industry that this might not be the place to do business,” said Robert Kahn, executive director of the Northwest & Intermountain Power Producers Coalition. “This was predictable and preventable. We should never be in a position of having too much of a good thing.”

BPA sells power from 31 hydroelectric dams in the region and operates much of its transmission network. The agency’s administrator, Steve Wright, has been pressured by members of Congress to back away from the plan. He acknowledged Friday that BPA could quickly face litigation, but said he had little choice.

“We wouldn’t do this if we didn’t have a good chance of winning, so we’re ready if folks choose to sue, he said. “What I regret is that we haven’t found a better solution.”

BPA finalized the policy to prepare for what could be the highest runoff in the Columbia Basin since 1999. That could boost power production from its own dams beyond limited spring electricity demands. The agency is also responsible for integrating generation from wind farms connected to its grid, toggling its own production up and down to match power demand and supply and keep the grid humming along in balance.

Under the terms of the plan, the agency will respond to overgeneration by first curtailing as much coal and natural gas generation as possible, then pull the plug on windfarms. BPA will substitute free hydropower to make up the energy deliveries that the wind farms are otherwise scheduled to make.

The agency contends it can’t turn off its own hydroelectric turbines and spill more water to accommodate wind because the resulting turbulence would violate limits on dissolved nitrogen in the water, harming fish. That leaves wind curtailment as the only choice.

BPA is aware that wind farms don’t want free hydropower because power buyers are also after renewable energy credits. Utilities use the RECs to comply with state renewable energy mandates, and they’re generated only when the turbine blades are spinning. RECs and federal production tax credits can make up 50 percent of the revenue stream for a wind farm.

“We feel there are other options,” said Roby Roberts, vice president at Horizon Wind Energy, which operates three wind farms in Oregon and one in Washington. “We’re going to push for a different resolution.”

BPA has worked on a variety if interim solutions to accommodate more wind, but crtitics say it’s been too little too late. Wright said Friday that most of those measures were stopgaps. What the region needs, he said, is more physical assets, either new transmission or storage of some form, both of which are expensive, longer-term solutions.

“We’ll have to explore all these things,” he said. “The other thing that’s clear is that there’s a lot of wind still coming on the system and the problem keeps getting bigger.”