## Facts

- A wind developer obtained a conditional use permit from a Wisconsin town to build a seven-turbine wind farm and later entered a long-term power-purchase agreement contingent on obtaining all required permits by March 1, 2011.
- The developer learned it needed separate building permits for each turbine; when it attempted to apply, the town board refused to accept the applications until it received additional information.
- By December 31, 2010, the developer supplied the requested information and told the board the March 1 deadline was essential because market conditions made the project infeasible without the power-purchase agreement.
- CEnergy purchased the project assets and repeatedly requested board action during January and February 2011, but the board did not act while local opposition intensified and board members received threats.
- The board first considered the applications on March 7, 2011; the utility terminated the power-purchase agreement on March 4 due to the missed deadline.
- The board eventually approved the building permits, but the project was no longer financially viable.
- CEnergy sued alleging a Fourteenth Amendment substantive due process violation based on property rights in the conditional use permit and building permits, and asserted a supplemental state-law good-faith claim.

## Issues

1. Whether the town board’s delay in acting on building-permit applications was so arbitrary and oppressive as to violate substantive due process under the Fourteenth Amendment.
2. Whether a plaintiff asserting a state-created property interest may pursue a federal substantive due process claim without first pursuing available state-law remedies.
3. Whether the district court properly declined supplemental jurisdiction over the state-law good-faith claim after dismissing the federal claim.

## Decision

- The Seventh Circuit affirmed dismissal under Rule 12(b)(6) of the substantive due process claim.
- The court held the delay, even if politically motivated by community opposition, did not constitute constitutionally arbitrary conduct that “shocks the conscience.”
- The court held, independently, that CEnergy failed to state a substantive due process claim because it did not pursue available state-law remedies for the asserted state-created property interest.
- The court affirmed the district court’s discretionary decision to decline supplemental jurisdiction over the state-law claim once the federal claim was dismissed.

## Legal Principles

- Substantive due process does not federalize ordinary land-use disputes; the challenged action must be arbitrary in the constitutional sense, typically described as conscience-shocking.
- Political responsiveness and popular opposition can be rational reasons for delay in local land-use decisionmaking and generally do not meet the conscience-shocking threshold.
- When the alleged property right is created and defined by state or local law, a plaintiff who does not pursue reasonably available state-law remedies cannot state a federal substantive due process claim based on that right.
- After dismissal of all federal claims at the pleading stage, a federal court may decline supplemental jurisdiction over remaining state-law claims.

## Conclusion

The Seventh Circuit held that the town’s delay in processing wind-farm building permits—though it caused loss of a time-sensitive power contract—was not conscience-shocking and, in any event, could not support a substantive due process claim where the plaintiff bypassed available state-law remedies for a state-created property interest.


CEnergy–Glenmore Wind Farm #1, LLC v. Town of Glenmore, 769 F.3d 485 (7th Cir. 2014)