Delay in Acting on Wind Permits Not Unconstitutional
The 7th Circuit Court of Appeals recently dismissed a case challenging a local governmental body's actions regarding an application for permits for a proposed wind farm. CEnergy-Glenmore Wind Farm #1, LLC v. Town of Glenmore, (7th Cir. August 7, 2014).
The plaintiff sought building permits from the town to build seven wind turbines. The project was highly controversial, and angry citizens attend town board meetings to protest the proposed wind farm project. After months of meetings, the town board did finally approve the building permit applications at a public meeting. However, after citizens threatened the chair and board members, the board voted to rescind its approval at that same meeting. Then, a week later, the town board rescinded its decision to rescind approval. The approvals were never issued, however, because of deficiencies in the applications.
Since CEnergy failed to obtain the necessary permits by March 1st, it lost its contract rights to build the wind farm project, and it sued the town claiming that the delay in granting the permits violated its due process rights and vested rights. The district court disagreed, finding that the plaintiff failed to show that its due process rights were violated. The court also held that plaintiff should have sought state law relief to challenge the local land use decision rather than file a federal court action.
The 7th Circuit agreed with the district court, finding that the plaintiff's due process claims fail because the town board's actions were not arbitrary and because CEnergy failed to seek state law relief. The court noted that in order to be "arbitrary," a land use decision must "shock the conscience" or be "egregious official conduct." Here, the town board's decision to delay action on the building permits because of popular opposition to the project was a "rational and legitimate reason for a legislature to delay making a decision." In any event, plaintiff should have brought its land use case to state court, which offers a variety of remedies, including a writ of mandamus.
Post Authored by Julie Tappendorf, Ancel Glink
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