The utilities behind some of Wisconsin’s largest solar generators say nothing in the state constitution banning long-term leases that opponents claim are illegal.
Last month, opponents of a 2,400-acre solar and storage project in southeastern Dane County asked regulators to reject the permit application on the grounds that the 25-year leases violate the language of the constitution which seems to limit agricultural leases to 15 years. .
They say projects that depend on “legally void” leases are not in the best interests of taxpayers and should be stopped.
Similar petitions have been filed asking the Public Service Commission to revoke permits for two other large-scale projects, including one already in operation in Iowa County.
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Lawyers for WEC Energy Group and Madison Gas and Electric, which co-own the Iowa County solar farm and are seeking to buy the project from Dane County for $649 million, say opponents misunderstand the constitution and that their “strange” interpretation would upend nearly 200 years of real estate law and invalidate leases for things like cellphone towers, billboards and mines.
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In responses filed Tuesday, the utilities asked the PSC to dismiss the petitions, which they called “frivolous and unfortunate,” and chastised opponents for basing their reading on a one-page introduction to the law on agricultural leases prepared by a former professor at UW-Extension.
The language in question comes from Section 1 of the Constitution, which states:
“All state lands are declared allodial and feudal tenures are prohibited. Leases and grants of agricultural land for a term exceeding fifteen years, in which rent or service of any kind shall be reserved, and all fines and other restrictions similar to alienation reserved in any grant of land, hereinafter made, are declared void.
The utilities say opponents have misinterpreted the 174-year-old provision, which exists primarily to differentiate the US system of land ownership from that of medieval Europe, where people who farmed land were rarely allowed to own it and instead had access to them in exchange for promises of loyalty and service.
“This provision is intended to make land more transferable, not less,” the utilities say.
Moreover, they say that this only applies to land leased for agricultural purposes. And while most of the land under lease is currently farmland, that’s not how the utilities plan to use it.
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Citing the tax code and a Supreme Court decision, they argue that agricultural use “essentially means growing crops. There is no doubt that the land dedicated to solar panels, batteries and related equipment will not be used to grow crops.
The utilities say adopting the opponents’ interpretation “would void any long-term leases of any land that was agricultural at any time in the past, including countless leases of cell towers, wind turbines, billboards and mining”.
The PSC has not indicated whether it will consider the petitions.
In November, the commission denied a motion to deny Dane County’s permit application on the grounds that the utilities and developer Invenergy were exploiting a legal loophole to avoid regulatory review.
The project, known as Koshkonong Energy Center, has drawn fierce opposition from neighbors and the nearby village of Cambridge, which wants to develop some of the farmland for future housing.