Site selection for wind turbine generation presents one of the first legal issues to consider in the construction of a wind farm. It is not surprising that the law addressing site selection for wind farms is generally more developed than the law regarding the unique construction aspects of wind farms, such as land use agreements, equipment contracts, construction contracts, power supply agreements, and the incorporation of wind farm output into the power grid.

Historically, rights to a view from property were not enforceable unless those rights were spelled out in local subdivision regulations or in covenants, conditions, and restrictions that bound individual property owners. Views, or vistas, were regulated, if at all, at the municipal level or even more locally, by development or residential complex. However, in recent years, an increasing number of states and localities have passed laws protecting scenic and historic views, and Wind Turbine Generator (WTG) sitings are susceptible to challenge under these laws.

Some plaintiffs have claimed that WTG sitings spoil scenic views and reduce property values. The U.S. Supreme Court held in 1954 that promotion of the "general welfare" can include passage of regulations that preserve or enhance aesthetics (Berman v. Parker, 348 U.S. 26 (1954)). The Berman ruling provided the basis for numerous state and local laws that prohibit the interruption of scenic views by housing developments, commercial real estate projects, and in particular, construction occurring in or near lakes, streams, wetlands, and coastal areas. State laws or constitutional provisions in Hawaii, Maine, Minnesota, New York, Oregon, Vermont, and Wisconsin all establish design controls or other regulations to "conserve and protect scenic beauty." See, e.g., New York Mun. Home Rule Law Sec. 10(1)(a)(1) (permitting passage of local laws to "protect and enhance. . . physical and visual environments"). See Kevin E. McCarthy, "Regulating Scenic Views," Connecticut Office of Legislative Research, No. 2002-R-0653, September 18, 2002., at 3.

Even where state legislatures have not enacted laws authorizing subdivisions to regulate views, local zoning powers often allow municipalities to do so on their own initiative. Local ordinances in California, Colorado, Maryland, New York, Oregon, Texas, Utah, and Wisconsin all restrict development and/or subdivision of land with an aim toward preserving or enhancing scenic views or otherwise avoiding construction that will "result in a clearly adverse aesthetic impact." See McCarthy at 4, quoting Wal-Mart Stores, Inc. v . Planning Board of the Town of North Elba, N.Y.S. 2d 774 (1998). Most of these restrictions appear in county or municipal code sections that are based on the Model Zoning Enabling Act (MZEA). The MZEA lists "promotion of the general welfare" as a primary goal of zoning and thereby draws its credibility from the Supreme Court's 1954 holding in Berman. See McCarthy, supra, at 1.

Common law doctrines can also be used to attack WTG facility sitings. In Burch v. Nedpower Mount Storm, LLC, 647 S.E.2d 879 (W. Va. 2007), a group of private homeowners sued to enjoin construction of a WTG facility less than two miles from their properties. The plaintiffs claimed that the facility would constitute a private nuisance due to noise and dangers from exposure to industrial equipment, and would correspondingly reduce their property values. The appellate court reversed a judgment on the pleadings for the wind power companies, finding that even the state Public Service Commission's approval of the project did not preclude a claim for nuisance. The court concluded that although approval by a state agency was "persuasive evidence of the reasonableness and social utility" of a WTG facility (Id. at 895), it was not beyond doubt that plaintiffs could not prove "certain injury to the use and enjoyment of their properties as a result of constant loud noise. . . unsightliness, and reduction in. . . property values." Id. at 893.

Some local governments in the United States have established moratoria on development of new WTG facilities. Wendie L. Kellington, "Siting Wind Energy Facilities in the United States and Key Local Land Use Issues," ALI-ABA Land Use Institute: Planning, Regulation, Litigation, Eminent Domain, and Compensation (Course of Study Materials), August 16-18, 2007, citing Ecogen LLC v. Town of Italy, 438 F. Supp. 2d 149
(2006). In Ecogen, a local moratorium on construction of WTG facilities survived a substantive due process attack. The U.S. District Court for the Western District of New York found that a municipality's prohibition of WTGs is "rationally related" to the goal of preserving the municipality's aesthetic character.

The Ecogen Court did require, however, that the town establish a revised zoning plan that accounted for the construction of WTGs within its boundaries. Zoning plans that accommodate WTGs "avoid ambiguities that otherwise attend wind power facility siting." Kellington, supra, at 3. Existing zoning plans seldom accommodate the unusual conditions associated with construction of WTG facilities. In Bomba v. Zoning Board of Appeals of the Town of Princeton (2005 WL 2106162 (September 1, 2005) (unreported)), for example, the court concluded that a wind turbine was subject to a 35-foot height limitation, and was not excepted from the limitation under provisions applicable to "buildings" or "towers," though the wind turbine was neither. The applicability and impact of local zoning laws is therefore a key consideration in siting WTG facilities.

More and more state legislatures are amenable to WTG facilities under the right conditions. In Ohio, for example--a state with significant wind energy potential but minimal current infrastructure to harness it--the state legislature passed a law in July 2008 that requires all incumbent utilities and marketers to obtain at least 25 percent of the electricity sold to consumers from alternative energy sources by the year 2025. One-half of that energy must come from renewable sources, and another percentage must come from "advanced energy" resources. Further, at least one-half of that 25 percent of renewable-source energy must come from Ohio-based generation facilities. The law exempts suppliers from compliance with the law in the event that there are not enough renewable energy resources available in the marketplace to comply with the law's benchmarks. This is a key escape provision in the law, given that Ohio's market for alternative energy is still far from robust.

Other cases demonstrate the resistance wind companies or WTG developers face in siting decisions. In Boyle v. McGlynn, 28 A.D.3d 994 (N.Y. Ct. App. Apr. 20, 2006), the court found that material issues of fact existed in a real estate rescission case where sellers had failed to notify buyers that a WTG facility was planned for an adjacent parcel. Although the land use request for the WTG facility had been filed a month after the sale closed, the project had generated controversy for months, and one seller admitted that he would be "forced" to sell his property if the WTG facility was completed. The buyers were allowed to proceed on claims for fraud, money damages, misrepresentation by silence, and rescission.

Notice of administrative hearings addressing WTG projects has received attention in several recent cases as well. See, e.g., Sprenger v. Public Service Commission of Maryland, 926 A.2d 238 (Ct. App. Md. June 21, 2007) (plaintiffs claimed published notice of administrative hearing to approve wind turbine facility was inadequate and violative of due process); see also Roberts v. Manitowoc County Board of Adjustment, 721 N.W.2d 499 (Ct. App. Wis. July 5, 2006) (notice of hearing on WTG facility's conditional use permit was inadequate and agency failed to adequately consider evidence of environmental, safety, and property impacts).

Thus, a wind farm must survive site selection scrutiny the same as any other power generation facility. Developers have to be prepared to respond to site selection challenges. Examples include: a distaste for wind turbines obstructing views; migratory birds and bats; threats to adjacent property through potential tower collapse, noise, or the flicker effect (a strobe-like occurrence caused when the sun is aligned to either pass through or reflect off of turbine blades). Overcoming site selection challenges can be accomplished, in part, with conscientious construction planning and techniques.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.