CEnergy-Glenmore Wind Farm v. Town of Glenmore

Prelude, a wind-farm-development company, obtained a conditional-use permit from the Town of Glenmore (defendant) to develop farmland to build a wind farm. Later, Prelude entered into a power-purchase agreement with the Wisconsin Public Service Corporation to sell wind energy produced by Prelude for 20 years at set rates. The agreement was binding on the two parties only if Prelude obtained the requisite permits by March 1, 2011. In September 2010, Prelude learned that it needed a building permit for each wind turbine that it constructed. When the company tried to submit permit applications to the town board, the board refused to accept the applications and called for additional information. By December 31, 2010, Prelude had submitted the additional information and informed the board that the power-purchase agreement would not take effect unless the permits were approved by March 1, 2011. Prelude also informed the board that the project was not financially feasible without the power-purchase agreement because of changes in the energy market. In December 2010, CEnergy-Glenmore Wind Farm (CEnergy) (plaintiff) agreed to purchase the right to develop the wind farm from Prelude along with Prelude’s other assets. CEnergy asked the board to act on the applications for the building permits at the January and February board meetings, but the board failed to do so. In January 2011, public sentiment turned against the project. Glenmore citizens angrily opposed the project at the board’s public meetings in January and February, and board members received threats. The board finally considered the applications on March 7. After reversing course twice, the board approved the applications, but because the March 1 deadline had passed, the project was unsalvageable. CEnergy filed suit against Glenmore for a deprivation of its vested property rights under the conditional-use permit without substantive due process. CEnergy argued that the board’s delay was an arbitrary and egregious abuse of authority that shocked the conscience, costing CEnergy millions in profits. The district court dismissed CEnergy’s suit for failure to state a claim.