2009 - 2010 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 1,
TO 2009 ASSEMBLY BILL 256
June 17, 2009 - Offered by Committee on Energy and Utilities.
1An Act to renumber and amend
66.0401 (1); to amend
66.0401 (2) and 2
66.0403 (1) (m); 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), 196.378 (4g) and 4
196.491 (3) (dg) of the statutes; relating to: regulation of wind energy systems
5and 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. Current law defines "wind energy
system" as equipment that converts and then stores or transfers energy from the
wind into usable forms of energy.
This substitute amendment requires the Public Service Commission (PSC) to
promulgate rules establishing common standards for political subdivisions to
regulate the construction and operation of wind energy systems. The substitute
amendment also revises the definition of "wind energy system" to include associated
facilities of the equipment specified under current law. The PSC's rules must specify
the restrictions a political subdivision may impose on the installation or use of such
a system, and may include subjects such as visual appearance, setback distances,
decommissioning, shadow flicker, electrical connections to the power grid, and
interference with radio, telephone, or television signals. The PSC must also
promulgate rules specifying requirements and procedures for a political subdivision
to enforce such restrictions.
If a political subdivision chooses to regulate such systems, its ordinances may
not be more restrictive than the PSC rules. The substitute amendment also specifies
various standards, procedures for applicants, and approval timelines for political
subdivisions that must be contained in a political subdivision's ordinance regulating
The substitute amendment 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.
The substitute amendment provides that any person who is aggrieved by a
political subdivision's decision or enforcement action may seek review by the PSC.
If the PSC determines that the political subdivision's decision or enforcement action
does not comply with the agency's rules or is unreasonable, it must issue a
superseding decision and order an appropriate remedy. The PSC's decision or order
may be appealed to circuit court.
The substitute amendment specifies that if a county enacts an ordinance
relating to the construction or operation of a wind energy system, as provided by the
substitute amendment, 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.
Finally, the substitute amendment does not affect a provision under current
law that exempts certain electric generating facilities from local ordinances. Under
current law, a person may not construct an electric generating facility with a nominal
operating capacity of 100 megawatts or more unless the PSC grants a certificate of
public convenience and necessity (CPCN) to the person. If the PSC has granted a
CPCN to such a facility, and if installation or utilization of the facility is precluded
or inhibited by a local ordinance, current law provides that the installation and
utilization of the facility may nevertheless proceed. Because this substitute
amendment does not affect that provision, the authority of a political subdivision to
regulate a wind energy system under the substitute amendment is limited to those
wind energy systems with a nominal operating capacity of less than 100 megawatts.
However, the substitute amendment requires the PSC to consider the restrictions
specified in the rules described above when the PSC determines whether to grant a
CPCN to a wind energy system with a nominal operating capacity of 100 megawatts
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
223.39 Placement of wind turbines.
The department shall identify areas in 3
this state where wind turbines, if placed in those areas, may have a significant 4
adverse effect on bat and migratory bird populations. The department shall 5
maintain an Internet Web site that provides this information to the public and that 6
includes a map of the identified areas.
AB256-ASA1, s. 2
66.0401 (1) of the statutes is renumbered 66.0401 (1m), and 66.0401 8
(1m) (intro.), as renumbered, is amended to read:
66.0401 (1m) Authority to restrict systems limited.
(intro.) No county, city,
10town, or village political subdivision may place any restriction, either directly or in
11effect, on the installation or use of a wind energy system that is more restrictive than
12the rules promulgated by the commission under s. 196.378 (4g) (b). No political
may place any restriction, either directly or in effect, on the installation 14
or use of a solar energy system, as defined in s. 13.48 (2) (h) 1. g., or a wind energy 15
system, as defined in s. 66.0403 (1) (m),
unless the restriction satisfies one of the 16
66.0401 (1e) Definitions.
In this section:
(a) "Application for approval" means an application for approval of a wind 20
energy system under rules promulgated by the commission under s. 196.378 (4g) (c) 21
(b) "Commission" means the public service commission.
(c) "Municipality" means a city, village, or town.
(d) "Political subdivision" means a city, village, town, or county.
(e) "Wind energy system" has the meaning given in s. 66.0403 (1) (m).
66.0401 (2) Authority to require trimming of blocking vegetation. A county,
3city, village, or town Subject to sub. (6) (a), a political subdivision
may provide by 4enact an
ordinance for relating to
the trimming of vegetation that blocks solar 5
energy, as defined in s. 66.0403 (1) (k), from a collector surface, as defined under s. 6
700.41 (2) (b), or that blocks wind from a wind energy system, as defined in s. 66.0403
. The ordinance may include, but is not limited to,
a designation of 8
responsibility for the costs of the trimming. The ordinance may not require the 9
trimming of vegetation that was planted by the owner or occupant of the property on 10
which the vegetation is located before the installation of the solar or wind energy 11
66.0401 (3) Testing activities.
A political subdivision may not prohibit or 14
restrict any person from conducting testing activities to determine the suitability of 15
a site for the placement of a wind energy system. A political subdivision objecting 16
to such testing may petition the commission to impose reasonable restrictions on the 17
66.0401 (4) Local procedure.
(a) 1. Subject to subd. 2., a political subdivision 20
that receives an application for approval shall determine whether it is complete and, 21
no later than 45 days after the application is filed, notify the applicant about the 22
determination. As soon as possible after receiving the application for approval, the 23
political subdivision shall publish a class 1 notice, under ch. 985, stating that an 24
application for approval has been filed with the political subdivision. If the political 25
subdivision determines that the application is incomplete, the notice shall state the
reason for the determination. An applicant may supplement and refile an 2
application that the political subdivision has determined to be incomplete. There is 3
no limit on the number of times that an applicant may refile an application for 4
approval. If the political subdivision fails to determine whether an application for 5
approval is complete within 45 days after the application is filed, the application 6
shall be considered to be complete.
2. If a political subdivision that receives an application for approval under 8
subd. 1. does not have in effect an ordinance described under par. (g), the 45-day time 9
period for determining whether an application is complete, as described in subd. 1., 10
does not begin until the first day of the 4th month beginning after the political 11
subdivision receives the application. A political subdivision may notify an applicant 12
at any time, after receipt of the application and before the first day of the 4th month 13
after its receipt, that it does not intend to enact an ordinance described under par. 14
3. On the same day that an applicant makes an application for approval under 16
subd. 1. for a wind energy system the applicant shall mail or deliver written notice 17
of the application to the owners of land adjoining the site of the wind energy system.
4. A political subdivision may not consider an applicant's minor modification 19
to the application to constitute a new application for the purposes of this subsection.
(b) A political subdivision shall make a record of its decision making on an 21
application for approval, including a recording of any public hearing, copies of 22
documents submitted at any public hearing, and copies of any other documents 23
provided to the political subdivision in connection with the application for approval. 24
The political subdivision's record shall conform to the commission's rules 25
promulgated under s. 196.378 (4g) (c) 2.
(c) A political subdivision shall base its decision on an application for approval 2
on written findings of fact that are supported by the evidence in the record under par. 3
(b). A political subdivision's procedure for reviewing the application for approval 4
shall conform to the commission's rules promulgated under s. 196.378 (4g) (c) 3.
(d) Except as provided in par. (e), a political subdivision shall approve or 6
disapprove an application for approval no later than 90 days after the day on which 7
it notifies the applicant that the application for approval is complete. If a political 8
subdivision fails to act within the 90 days, or within any extended time period 9
established under par. (e), the application is considered approved.
(e) A political subdivision may extend the time period in par. (d) if, within that 11
90-day period, the political subdivision authorizes the extension in writing. Any 12
combination of the following extensions may be granted, except that the total amount 13
of time for all extensions granted under this paragraph may not exceed 90 days:
1. An extension of up to 45 days if the political subdivision needs additional 15
information to determine whether to approve or deny the application for approval.
2. An extension of up to 90 days if the applicant makes a material modification 17
to the application for approval.
3. An extension of up to 90 days for other good cause specified in writing by the 19
(f) 1. Except as provided in subd. 2., a political subdivision may not deny or 21
impose a restriction on an application for approval unless the political subdivision 22
enacts an ordinance that is no more restrictive than the rules the commission 23
promulgates under s. 196.378 (4g) (b).
2. A political subdivision may deny an application for approval if the proposed 25
site of the large wind energy system is in an area primarily designated for future
residential or commercial development, as shown in a map that is adopted, as part 2
of a comprehensive plan, under s. 66.1001 (2) (b) and (f), before June 2, 2009, or as 3
shown in such maps after December 31, 2015, as part of a comprehensive plan that 4
is updated as required under s. 66.1001 (2) (i).
(g) A political subdivision that chooses to regulate wind energy systems shall 6
enact an ordinance, subject to sub. (6) (b), that is no more restrictive than the 7
applicable standards established by the commission in rules promulgated under s. 8
66.0401 (5) Public service commission review.
(a) A decision of a political 11
subdivision to determine that an application is incomplete under sub. (4) (a) 1., or to 12
approve, disapprove, or impose a restriction upon a wind energy system, or an action 13
of a political subdivision to enforce a restriction on a wind energy system, may be 14
appealed only as provided in this subsection.
(b) 1. Any aggrieved person seeking to appeal a decision or enforcement action 16
specified in par. (a) may begin the political subdivision's administrative review 17
process. If the person is still aggrieved after the administrative review is completed, 18
the person may file an appeal with the commission. No appeal to the commission 19
under this subdivision may be filed later than 30 days after the political subdivision 20
has completed its administrative review process. For purposes of this subdivision, 21
if a political subdivision fails to complete its administrative review process within 90 22
days after an aggrieved person begins the review process, the political subdivision 23
is considered to have completed the process on the 90th day after the person began 24
2. Rather than beginning an administrative review under subd. 1., an 2
aggrieved person seeking to appeal a decision or enforcement action of a political 3
subdivision specified in par. (a) may file an appeal directly with the commission. No 4
appeal to the commission under this subdivision may be filed later than 30 days after 5
the decision or initiation of the enforcement action.