SB544: Bill Text

LRB-4108/4

MES&MDK:wlj:pg

2007 - 2008 LEGISLATURE

2007 Senate BILL 544

February 29, 2008 - Introduced by Senator Plale, cosponsored by Representative Montgomery. Referred to Committee on Commerce, Utilities and Rail.

SB544,1,5 An Act to renumber and amend 66.0401 (1); to amend 66.0401 (2); to repeal and recreate 196.378 (4) (title); and to create 66.0401 (1e), 66.0401 (3), 66.0401 (4), 66.0401 (5), 66.0401 (6) and 196.378 (4g) of the statutes; relating to: requiring that local regulation of a wind energy system be consistent with Public Service Commission rules and granting rule-making authority.

Analysis by the Legislative Reference Bureau

Under current law, a city, village, town, or county (political subdivision) may not place any restrictions on the installation or use of an energy system (a solar energy system or a wind energy system) unless the restriction is for health or safety reasons, does not significantly increase the cost of the system or decrease its efficiency, or allows for an alternative comparable system.

This bill requires the Public Service Commission (PSC) to promulgate rules establishing common standards for political subdivisions to regulate the construction and operation of wind-powered generating projects. The rules must specify the restrictions a political subdivision may impose on the installation or use of such a project, and may include subjects such as visual appearance, setback distances, decommissioning, electrical connections to the power grid, and interference with radio, telephone, or television signals.

If a political subdivision chooses to regulate such projects, its ordinances may not be more restrictive than the PSC rules. The bill also specifies various standards, procedures for applicants, and approval timelines for political subdivisions that must be contained in a political subdivision's ordinance regulating wind-powered generating projects.

The bill prohibits a political subdivision from prohibiting or restricting any person from conducting tests to determine the suitability of a site for the possible placement of a wind energy system, although the political subdivision may petition the PSC to impose reasonable restrictions on the testing.

With regard to a proposed wind energy system that is one megawatt or larger, the bill provides that any person who is aggrieved by a political subdivision's decision may seek review by the PSC. If the PSC determines that the political subdivision's decision does not comply with the agency's rules or is unreasonable, it must issue a superseding decision and issue an appropriate remedy. The PSC's decision may be appealed to circuit court.

The bill specifies that if a county enacts an ordinance relating to the construction or operation of a wind energy system, as provided by the bill, the county ordinance applies only in the unincorporated parts of the county, except that if a town enacts a similar ordinance, the more restrictive terms of the two ordinances apply to the town.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB544, s. 1 Section 1. 66.0401 (1) of the statutes is renumbered 66.0401 (1m), and 66.0401 (1m) (intro.), as renumbered, is amended to read:

SB544,2,10 66.0401 (1m) Authority to restrict systems limited. (intro.) No county, city, town, or village political subdivision may place any restriction, either directly or in effect, on the installation or use of a wind energy system that is more restrictive than the rules promulgated by the commission under s. 196.378 (4g) (b). No political subdivision may place any restriction, either directly or in effect, on the installation or use of a solar energy system, as defined in s. 13.48 (2) (h) 1. g., or a wind energy system, as defined in s. 66.0403 (1) (m), unless the restriction satisfies one of the following conditions:

SB544, s. 2 Section 2. 66.0401 (1e) of the statutes is created to read:

SB544,2,12 66.0401 (1e) Definitions. In this section:

SB544,3,3 (a) "Application for approval" means an application for approval of a wind energy system under rules promulgated by the commission under s. 196.378 (4g) (c) 1.

SB544,3,4 (b) "Commission" means the Public Service Commission.

SB544,3,6 (c) "Large wind energy system" means a wind energy system that has a nominal capacity of at least one megawatt.

SB544,3,7 (d) "Municipality" means a city, village, or town.

SB544,3,8 (e) "Political subdivision" means a city, village, town, or county.

SB544,3,9 (f) "Wind energy system" has the meaning given in s. 66.0403 (1) (m).

SB544, s. 3 Section 3. 66.0401 (2) of the statutes is amended to read:

SB544,3,20 66.0401 (2) Authority to require trimming of blocking vegetation. A county, city, village, or town Subject to sub. (6) (a), a political subdivision may provide by enact an ordinance for relating to the trimming of vegetation that blocks solar energy, as defined in s. 66.0403 (1) (k), from a collector surface, as defined under s. 700.41 (2) (b), or that blocks wind from a wind energy system, as defined in s. 66.0403 (1) (m). The ordinance may include, but is not limited to, a designation of responsibility for the costs of the trimming. The ordinance may not require the trimming of vegetation that was planted by the owner or occupant of the property on which the vegetation is located before the installation of the solar or wind energy system.

SB544, s. 4 Section 4. 66.0401 (3) of the statutes is created to read:

SB544,4,2 66.0401 (3) Testing activities. A political subdivision may not prohibit or restrict any person from conducting testing activities to determine the suitability of a site for the placement of a wind energy system. A political subdivision objecting to such testing may petition the commission to impose reasonable restrictions on the testing activity.

SB544, s. 5 Section 5. 66.0401 (4) of the statutes is created to read:

SB544,4,13 66.0401 (4) Local procedure. (a) A political subdivision that receives an application for approval shall determine whether it is complete and, no later than 45 days after the application is filed, notify the applicant about the determination. If the political subdivision determines that the application is incomplete, the notice shall state the reason for the determination. An applicant may supplement and refile an application that the political subdivision has determined to be incomplete. There is no limit on the number of times that an applicant may refile an application for approval. If the political subdivision fails to determine whether an application for approval is complete within 45 days after the application is filed, the application shall be considered to be complete.

SB544,4,19 (b) A political subdivision shall make a record of its decision making on an application for approval, including a recording of any public hearing, copies of documents submitted at any public hearing, and copies of any other documents provided to the political subdivision in connection with the application for approval. The political subdivision's record shall conform to the commission's rules promulgated under s. 196.378 (4g) (c) 2.

SB544,4,23 (c) A political subdivision shall base its decision on an application for approval on written findings of fact that are supported by the evidence in the record under par. (b). A political subdivision's procedure for reviewing the application for approval shall conform to the commission's rules promulgated under s. 196.378 (4g) (c) 3.

SB544,5,3 (d) Except as provided in par. (e), a political subdivision shall approve or disapprove an application for approval no later than 90 days after the day on which it notifies the applicant that the application for approval is complete. If a political subdivision fails to act within the 90 days, or within any extended time period established under par. (e), the application is considered approved.

SB544,5,7 (e) A political subdivision may extend the time period in par. (d) if, within that 90-day period, the political subdivision authorizes the extension in writing. Any combination of the following extensions may be granted, except that the total amount of time for all extensions granted under this paragraph may not exceed 90 days:

SB544,5,9 1. An extension of up to 45 days if the political subdivision needs additional information to determine whether to approve or deny the application for approval.

SB544,5,11 2. An extension of up to 90 days if the applicant makes a material modification to the application for approval.

SB544,5,13 3. An extension of up to 90 days for other good cause specified in writing by the political subdivision.

SB544,5,16 (f) A political subdivision may not deny or impose a restriction on an application for approval unless the political subdivision enacts an ordinance that is no more restrictive than the rules the commission promulgates under s. 196.378 (4g) (b).

SB544,5,19 (g) A political subdivision that chooses to regulate wind energy systems shall enact an ordinance, subject to sub. (6) (b), that is consistent with the applicable standards established by the commission in rules promulgated under s. 196.378 (4g).

SB544, s. 6 Section 6. 66.0401 (5) of the statutes is created to read:

SB544,5,23 66.0401 (5) Public service commission review. (a) The decision of a political subdivision to approve, reject, or impose a restriction upon a large wind energy system may be appealed only as provided in this subsection.

SB544,6,5 (b) 1. Any aggrieved person seeking to appeal a decision of a political subdivision to approve, reject, or impose a restriction upon a large wind energy system may begin the political subdivision's administrative review process. If the person is still aggrieved after the administrative review is completed, the person may file an appeal with the commission. No appeal to the commission under this subdivision may be filed later than 30 days after the political subdivision has completed its administrative review process.

SB544,6,11 2. Rather than beginning an administrative review under subd. 1., an aggrieved person seeking to appeal a decision of a political subdivision to approve, reject, or impose a restriction upon a large wind energy system may file an appeal directly with the commission. No appeal to the commission under this subdivision may be filed later than 30 days after the decision of the political subdivision to approve, reject, or impose a restriction upon the large wind energy system.

SB544,6,15 (c) Upon receiving an appeal under par. (b), the commission shall notify the political subdivision. The political subdivision shall provide a certified copy of the record upon which it based its decision, and of any other relevant governmental records the commission may request, within 30 days after receiving notice.

SB544,6,24 (d) The commission may confine its review to the records it receives from the political subdivision or, if it finds that additional information would be relevant to its decision, expand the record it reviews. The commission shall issue a decision within 90 days after the date on which it receives all of the records it requests under par. (c), unless for good cause the commission extends this time period in writing. If the commission determines that the political subdivision's decision does not comply with the rules it promulgates under s. 196.378 (4g) or is otherwise unreasonable, the political subdivision's decision shall be superseded by the commission's decision and the commission may order an appropriate remedy.

SB544,7,4 (e) Judicial review is not available until the commission issues its decision under par. (d). Judicial review shall be of the commission's decision, not of the political subdivision's decision. The commission's decision is subject to judicial review under ch. 227. Injunctive relief is available only as provided in s. 196.43.

SB544, s. 7 Section 7. 66.0401 (6) of the statutes is created to read:

SB544,7,8 66.0401 (6) Applicability of a county ordinance. (a) 1. A county ordinance enacted under sub. (2) applies only to the towns in the county that have not enacted an ordinance under sub. (2).