Wind Energy Projects - Jobsite Selection Takes Center Stage

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...