WY Supreme Court Upholds Board’s Approval of a Wind Energy Conversion System

This post was authored by Gabriella Mickel, Elisabeth Haub School of Law at Pace University (JD and LLM Candidate 2004)

ConnectGen Albany County LLC (ConnectGen) submitted an application for a Wind Energy Conversion System (WECS) permit to develop a wind farm in Albany County. The Board of County Commissioners of Albany County (Board) approved ConnectGen’s WECS permit application subject to certain conditions. Neighbors, including an adjacent farm, Monaghan Farms, Inc., sought judicial review of the Board’s decision, but the district court affirmed the approval. The Landowners and Monaghan Farms appealed the district court’s decision to the Supreme Court of Wyoming.

The court consolidated the two cases and identified the following issues: (1) whether ConnectGen was required to obtain a conditional use permit in addition to the WECS special use permit? (2) was the Board’s approval of the WECS special use permit application arbitrary and capricious? (3) was the Board’s approval of the WECS special use permit a taking of private property in violation of Wyo. Const. art. 1, § 32?

The Appellants argued that the Albany County Zoning Resolution (ACZR) required ConnectGen to obtain a conditional use permit in addition to the WECS special use permit. The Appellants’ argument arose from a table in the ACZR that seemed to reference a need for a conditional use permit. The court held that the ACZR does not require ConnectGen to obtain both permits, as it would be duplicative and opposed to the Board’s understanding of the ACZR.

To support their claim that the Board’s approval of the WECS special use permit application was arbitrary and capricious, the Appellants contended that the Board did not adequately consider and address the potential impacts of the wind energy facility, including visual impacts, light impacts, shadow flicker, noise impacts, and impacts on wildlife, particularly the golden eagle population and the sage-grouse habitat. Additionally, the Appellants argued that ConnectGen failed to provide letters of consent from all property owners, as required by the regulations. The court held that the Board’s approval of the wind energy facility was not arbitrary and capricious, noting that any timing discrepancies did not invalidate the Board’s decision.

Finally, Monaghan Farms argued that a setback condition imposed by the Board effectively prohibited them from building dwellings and amounted to a taking. The court determined that the condition did not result in a physical taking or a per se regulatory taking. Applying the Penn Central balancing test, the court found that the condition served a legitimate purpose and did not go too far to be considered a taking.

Monaghan Farms, Inc. v Board of County Commissioners of Albany County, 527 P. 3d 1195 (WY 4/17/2023)