A Message from the President: If Not Us, Who?

 Mike Theo  |    May 02, 2012

If not us, who? If not now, when?

You’ve probably heard this saying numerous times. But nowhere is the application of this principle more appropriate than our association’s efforts to balance windpower with property rights here in Wisconsin. 

The WRA has been criticized in the media and in the capitol over the past year for being the leading opponent to new wind turbine siting rules that are based on a state law passed several years ago. The law, pushed by the wind industry, eliminated local government power to regulate wind turbines and instead created a single statewide standard. Without local control, landowners were left to fend for themselves against large wind developers and their lawyers. 

Despite risks to private property rights and local control, the WRA did not oppose the law when it was being considered by the legislature. We clearly understood the need for clean, alternative energy sources in Wisconsin. But we wanted to ensure that property owners received pertinent, understandable and timely information on which to make an informed decision. We also wanted to make sure turbines were placed far enough away from homes and other structures to protect property owners and neighbors from excessive noise and visual pollution as well as to protect property values for all. 

Supporters of the legislation assured us that our concerns would be addressed in the administrative rulemaking process that followed passage of the law. However as the rulemaking process proceeded, it became increasingly clear that none of the key property rights issues we sought to protect would be addressed. The louder we complained, the more apparent it became the wind developers controlled the majority of the committee, and they had no intention of weakening their hand. As a result, the rules, like the law, advanced without the property rights protections we sought.

It was a fight we didn’t seek and very much wanted to avoid. In our minds, solutions seemed eminently reachable. But the wind developers and their supporters wanted to protect profits and alternative energy — not the rights of land owners. Most uplifting was the support we received from hundreds of property owners who were overjoyed at the WRA’s resolve to stand with them. Together, we argued that allowing massive industrial wind turbines — some as high as 500 feet — within 1,200 feet of a home and within 550 feet of a commercial or industrial building would negatively impact property values and create significant health and safety risks to area residents. We proposed numerous alternatives. 

We argued to give homeowners some time after entering into a contract with a wind energy company to have an attorney review the contract. We argued the state provide an informational brochure to homeowners describing wind energy systems, state standards and possible impacts. 

We argued that anyone negotiating a lease on behalf of a wind developer must have a real estate license, as required under Chapter 452 of Wisconsin law so they must obey the fiduciary obligations such as honesty and fairness and disclosure of all material adverse information like other real estate licensees who negotiate leases. 

And we argued that the state should be required to conduct longer-term studies about the true impacts of wind energy systems on neighboring property owners.

Despite bipartisan legislative support for our efforts, the Public Service Commission (PSC) refused to make any changes.

Gov. Walker sided with property owners immediately upon taking office and began efforts to reverse the rules. He was joined by many lawmakers who also championed private property rights. However despite numerous legislative and administrative efforts, and our best attempts at shuttle diplomacy, the clock ran out on the legislative session without resolving the issue and as a result, these flawed wind rules went into effect March 15. Delighted wind developers promised to begin siting new turbines immediately. This means property rights are under a real and imminent threat right here, right now. 

We fought hard for fairer wind siting rules and for the rights of property owners. We endured damning media stories that failed to focus on the land owners’ rights being lost or the reasonable alternatives we were offering. 

But it was all worth it. Not just for the people, but for the principle. 

For affected property owners, they now face health problems such as insomnia, anxiety, headaches and nausea — symptoms illustrated repeatedly at public hearings by those living near existing wind turbines. They face the noise pollution caused by a constant “whooshing” or pulsating noise that can be heard day and night, inside and outside homes located too close to turbines that are too big. Neighbors will be subject to “shadow flicker” when the clouds and the sun align with massive turning blades and cast rhythmic shadows across the rural landscape. And they face falling property values, estimated by one Wisconsin-based study to up to 43 percent on vacant land and up to 39 percent on improved property. 

The protection of property values and property rights is not an abstract theory we are fighting for here. It is a very fundamental legal right that is also the underlying basis for our entire industry. As a legal right, the 5th and 14th Amendments to the United States Constitution say governments shall not arbitrarily infringe on the basic rights of individuals to acquire, possess and freely transfer real property. Indeed, the REALTOR® organization is founded on the principle of protecting the freedom to buy, sell and use property — which is the basis of all real estate transactions and markets. Government-imposed restrictions or limitations that deny property owners the highest and best use of their property not only hinder economic freedom, they hamper social freedom as well. Governments certainly have the right to protect public health, safety and the environment. But when government acts outside those legitimate police powers and violate fundamental rights like the rights of private property owners, we as REALTORS® must be prepared to actively oppose them. 

If not us, who? If not now, when?

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