Montana Supreme Court
Choteau Acantha Article – Industrial wind farm has broken ground in county–pub 3-30-16–
Choteau, Montana March, 30, 2016
By Nancy Thornton, Choteau Acantha reporter
A second industrial wind farm has broken ground southeast of Choteau, even as a wind farm half the size located on the new project’s western boundary was sold to a New York-based renewable energy investment company.
Teton County Commissioner Jim Hodgskiss said a Greenfield Wind LLC official, Matt Wilson, notified him that contractors would break ground during the week of March 20 for a 15-turbine wind farm next to the six-turbine Fairfield Wind project that was completed in May 2014.
The Teton County commissioners last summer approved a 10-year tax abatement for the proposed $47 million Greenfield Wind project while denying an abatement for the $19 million Fairfield Wind project.
Subsequently, Fairfield Wind appealed the state Department of Revenue’s determination that Fairfield Wind had a $19,118,781 market value. The matter is now before the Montana Board of Tax Appeals with all “discovery” documents due by April 25 and the hearing set for July 19.
Fairfield Wind’s 2015 tax bill was $323,569.83, an amount, with some later adjustments, that was paid under protest.
The Fairfield Wind farm is located in the Choteau elementary and high school districts and the proposed Greenfield Wind farm is in the Power High School and the Greenfield Elementary School districts.
Revenue officials estimated that Greenfield Wind would generate an estimated annual tax bill in the neighborhood of $863,000 under the cost approach, although with the tax abatement set for 50 percent during the first five years, local governments would receive only half of that.
Wilson works for Foundation Windpower LLC that owns a majority-member equity interest in Greenfield Wind LLC. The minority member of Greenfield Wind is Fairfield resident Martin Wilde who developed both wind farm projects under his company, WINData LLC.
Wilson and Wilde did not respond to invitations for telephone interviews.WINData has filed two lawsuits against Foundation Windpower in Teton County District Court that Judge Robert Olson recently dismissed. However, WINData has appealed the two cases to the Montana Supreme Court.
In December 2015 Foundation Windpower sold its interest in the Fairfield Wind project (the legal entity at that point was called Fairfield Wind Master Tenant LLC) to Greenbacker Wind LLC, which is a business created by Greenbacker Renewable Energy Corp. and Greenbacker Renewable Energy Co. LLC of New York, New York.
Greenbacker, in a December press release, said it acquired the Fairfield Wind project for $6,615,000 in cash and the assumption of $12,412,000 in debt for a total of $19,027,000 on Dec. 8, 2015. It is a “publicly registered, non-traded limited liability company that expects to acquire a diversified portfolio of income-producing renewable energy power plants, energy efficient projects and other sustainable investments,” according to its website.
The wind farm has two 1.6-megawatt and four 1.7-megawatt turbines. The generated electricity is sold to NorthWestern Energy under a long-term power purchase agreement that has 18.5 years remaining on the contract.
Greenbacker, citing the project as a “fund portfolio” for its investors, forecasts a 10.7 percent initial yield on the investment, but cautioned in its literature that that yield is not a measure of the fund’s performance and it is not necessarily indicative of distributions that the fund may provide to investors.
Wilde has had disputes with Foundation Windpower since mid-2015 and in court documents said he filed a notice of dissociation with the Fairfield Wind entity over Foundation Windpower’s refusal to supply him with accounting information, among other things. He refused to sign off on Foundation Windpower’s proposed monetary value of WINData’s 10- percent equity interest in Fairfield Wind and he declined to agree to the sale.
However, Foundation Windpower’s attorney Stephen Brown of Missoula successfully argued in Olson’s court in February that the operating agreement the pair of companies signed required that the dispute be brought in a California forum, not one in Montana.
Brown successfully argued a similar point when in July 2014, the Montana Supreme Court found in favor of San Diego Gas & Electric Co., (against Naturener USA that owns wind farms in Glacier and Toole counties) determining that the “consent to conduct all” provision of the first contract between the two parties required the parties to litigate all disputes Industrial wind farm has broken ground in county–pub 3-30-16– 2 pertaining to that contract in California. Brown represented San Diego Gas.
In a similar way, Olson dismissed Wilde’s lawsuit against Foundation Windpower, first in the dispute over Fairfield Wind, and second, over the Greenfield Wind