May 4, 2009 - Introduced by Senators Plale, Hopper, Hansen, Holperin, Kreitlow,
Taylor, Sullivan, Miller, Risser, Wirch and Coggs, cosponsored by
Representatives Soletski, Montgomery, Parisi, Black, Mason, Spanbauer,
Hilgenberg, Roys, Townsend, Richards, Suder, Honadel, Pocan, Clark,
Wood, Smith, Pasch, Vruwink, Molepske Jr. and Stone. Referred to
Committee on Commerce, Utilities, Energy, and Rail.
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 bill 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 bill 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 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 the systems.
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
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 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.
Finally, the bill 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 bill does not affect
that provision, the authority of a political subdivision to regulate a wind energy
system under the bill is limited to those wind energy systems with a nominal
operating capacity of less than 100 megawatts. However, the bill 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 or more.
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:
SB185, s. 1
66.0401 (1) of the statutes is renumbered 66.0401 (1m), and 66.0401 2
(1m) (intro.), as renumbered, is amended to read:
66.0401 (1m) Authority to restrict systems limited.
(intro.) No county, city,
2town, or village political subdivision may place any restriction, either directly or in
3effect, on the installation or use of a wind energy system that is more restrictive than
4the 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 6
or use of a solar energy system, as defined in s. 13.48 (2) (h) 1. g., or a wind energy 7
system, as defined in s. 66.0403 (1) (m),
unless the restriction satisfies one of the 8
SB185, s. 2
66.0401 (1e) of the statutes is created to read:
66.0401 (1e) Definitions.
In this section:
(a) "Application for approval" means an application for approval of a wind 12
energy system under rules promulgated by the commission under s. 196.378 (4g) (c) 13
(b) "Commission" means the public service commission.
(c) "Large wind energy system" means a wind energy system that has a nominal 16
capacity of at least one megawatt.
(d) "Municipality" means a city, village, or town.
(e) "Political subdivision" means a city, village, town, or county.
(f) "Wind energy system" has the meaning given in s. 66.0403 (1) (m).
SB185, s. 3
66.0401 (2) of the statutes is amended to read:
66.0401 (2) Authority to require trimming of blocking vegetation. A county,
22city, village, or town Subject to sub. (6) (a), a political subdivision
may provide by 23enact an
ordinance for relating to
the trimming of vegetation that blocks solar 24
energy, as defined in s. 66.0403 (1) (k), from a collector surface, as defined under s. 25
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 2
responsibility for the costs of the trimming. The ordinance may not require the 3
trimming of vegetation that was planted by the owner or occupant of the property on 4
which the vegetation is located before the installation of the solar or wind energy 5
SB185, s. 4
66.0401 (3) of the statutes is created to read:
66.0401 (3) Testing activities.
A political subdivision may not prohibit or 8
restrict any person from conducting testing activities to determine the suitability of 9
a site for the placement of a wind energy system. A political subdivision objecting 10
to such testing may petition the commission to impose reasonable restrictions on the 11
SB185, s. 5
66.0401 (4) of the statutes is created to read:
66.0401 (4) Local procedure.
(a) 1. Subject to subd. 2., a political subdivision 14
that receives an application for approval shall determine whether it is complete and, 15
no later than 45 days after the application is filed, notify the applicant about the 16
determination. If the political subdivision determines that the application is 17
incomplete, the notice shall state the reason for the determination. An applicant 18
may supplement and refile an application that the political subdivision has 19
determined to be incomplete. There is no limit on the number of times that an 20
applicant may refile an application for approval. If the political subdivision fails to 21
determine whether an application for approval is complete within 45 days after the 22
application is filed, the application shall be considered to be complete.
2. If a political subdivision that receives an application for approval under 24
subd. 1. does not have in effect an ordinance described under par. (g), the 45-day time 25
period for determining whether an application is complete, as described in subd. 1.,
does not begin until the first day of the 4th month beginning after the political 2
subdivision receives the application. A political subdivision may notify an applicant 3
at any time, after receipt of the application and before the first day of the 4th month 4
after its receipt, that it does not intend to enact an ordinance described under par. 5
3. On the same day that an applicant makes an application for approval under 7
subd. 1. for a wind energy system the applicant shall mail or deliver written notice 8
of the application to the owners of land adjoining the site of the wind energy system.
4. If an applicant's application is approved or considered to be approved under 10
subd. 1., or if the application is not subject to regulation because the political 11
subdivision does not enact an ordinance described under par. (g) within the time 12
specified in subd. 2., a political subdivision may not consider an applicant's minor 13
modification to the application to constitute a new application for the purposes of this 14
5. If an applicant's application is considered to be approved under subd. 1., or 16
if the application is not subject to regulation as described in subd. 4., a political 17
subdivision may not regulate the wind energy system, to which the application 18
applies, under par. (g).
(b) A political subdivision shall make a record of its decision making on an 20
application for approval, including a recording of any public hearing, copies of 21
documents submitted at any public hearing, and copies of any other documents 22
provided to the political subdivision in connection with the application for approval. 23
The political subdivision's record shall conform to the commission's rules 24
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) A political subdivision may not deny or impose a restriction on an application 21
for approval unless the political subdivision enacts an ordinance that is no more 22
restrictive than the rules the commission promulgates under s. 196.378 (4g) (b).
(g) A political subdivision that chooses to regulate wind energy systems shall 24
enact an ordinance, subject to sub. (6) (b), that is no more restrictive than the
applicable standards established by the commission in rules promulgated under s. 2
SB185, s. 6
66.0401 (5) of the statutes is created to read:
66.0401 (5) Public service commission review.
(a) A decision of a political 5
subdivision to determine that an application is incomplete under sub. (4) (a) 1., or to 6
approve, disapprove, or impose a restriction upon a large wind energy system, or an 7
action of a political subdivision to enforce a restriction on a large wind energy system, 8
may be appealed only as provided in this subsection.
(b) 1. Any aggrieved person seeking to appeal a decision or enforcement action 10
specified in par. (a) may begin the political subdivision's administrative review 11
process. If the person is still aggrieved after the administrative review is completed, 12
the person may file an appeal with the commission. No appeal to the commission 13
under this subdivision may be filed later than 30 days after the political subdivision 14
has completed its administrative review process. For purposes of this subdivision, 15
if a political subdivision fails to complete its administrative review process within 90 16
days after an aggrieved person begins the review process, the political subdivision 17
is considered to have completed the process on the 90th day after the person began 18
2. Rather than beginning an administrative review under subd. 1., an 20
aggrieved person seeking to appeal a decision or enforcement action of a political 21
subdivision specified in par. (a) may file an appeal directly with the commission. No 22
appeal to the commission under this subdivision may be filed later than 30 days after 23
the decision or initiation of the enforcement action.
(c) Upon receiving an appeal under par. (b), the commission shall notify the 25
political subdivision. The political subdivision shall provide a certified copy of the
record upon which it based its decision or enforcement action within 30 days after 2
receiving notice. The commission may request of the political subdivision any other 3
relevant governmental records and, if requested, the political subdivision shall 4
provide such records within 30 days after receiving the request.
(d) The commission may confine its review to the records it receives from the 6
political subdivision or, if it finds that additional information would be relevant to 7
its decision, expand the records it reviews. The commission shall issue a decision 8
within 90 days after the date on which it receives all of the records it requests under 9
par. (c), unless for good cause the commission extends this time period in writing. 10
If the commission determines that the political subdivision's decision or enforcement 11
action does not comply with the rules it promulgates under s. 196.378 (4g) or is 12
otherwise unreasonable, the political subdivision's decision shall be superseded by 13
the commission's decision and the commission may order an appropriate remedy.
(e) In conducting a review under par. (d), the commission may treat a political 15
subdivision's determination that an application under sub. (4) (a) 1. is incomplete as 16
a decision to disapprove the application.
(f) Judicial review is not available until the commission issues its decision or 18
order under par. (d). Judicial review shall be of the commission's decision or order, 19
not of the political subdivision's decision or enforcement action. The commission's 20
decision or order is subject to judicial review under ch. 227. Injunctive relief is 21
available only as provided in s. 196.43.
SB185, s. 7
66.0401 (6) of the statutes is created to read:
66.0401 (6) Applicability of a county ordinance.
(a) 1. A county ordinance 24
enacted under sub. (2) applies only to the towns in the county that have not enacted 25
an ordinance under sub. (2).
2. If a town enacts an ordinance under sub. (2) after a county has enacted an 2
ordinance under sub. (2), the county ordinance does not apply, and may not be 3
enforced, in the town, except that if the town later repeals its ordinance, the county 4
ordinance applies in that town.
(b) 1. Subject to subd. 2., a county ordinance enacted under sub. (4) applies only 6
in the unincorporated parts of the county.
2. If a town enacts an ordinance under sub. (4), either before or after a county 8
enacts an ordinance under sub. (4), the more restrictive terms of the 2 ordinances 9
apply to the town, except that if the town later repeals its ordinance, the county 10
ordinance applies in that town.
SB185, s. 8
66.0403 (1) (m) of the statutes is amended to read:
(m) "Wind energy system" means equipment and associated
that converts convert
and then stores store
or transfers transfer
from the wind into usable forms of energy.
SB185, s. 9
196.378 (4) (title) of the statutes is repealed and recreated to read:
(title) Renewable resource rules.
SB185, s. 10
196.378 (4g) of the statutes is created to read:
196.378 (4g) Wind siting rules.
(a) In this subsection:
1. "Application for approval" has the meaning given in s. 66.0401 (1e) (a).
2. "Political subdivision" means a city, village, town, or county.
3. "Wind energy system" has the meaning given in s. 66.0403 (1) (m).
(b) The commission shall promulgate rules that specify the restrictions a 23
political subdivision may impose on the installation or use of a wind energy system 24
consistent with the conditions specified in s. 66.0401 (1m) (a) to (c). The subject 25
matter of these rules may include visual appearance, lighting, electrical connections
to the power grid, setback distances, maximum audible sound levels, shadow flicker, 2
proper means of measuring noise, interference with radio, telephone, or television 3
signals, decommissioning, or other matters. A political subdivision may not place a 4
restriction on the installation or use of a wind energy system that is more restrictive 5
than these rules.
(c) In addition to the rules under par. (b), the commission shall promulgate 7
rules that do all of the following:
1. Specify the information and documentation to be provided in an application 9
for approval to demonstrate that a proposed wind energy system complies with rules 10
promulgated under par. (b)
2. Specify the information and documentation to be included in a political 12
subdivision's record of decision under s. 66.0401 (4) (b).
3. Specify the procedure a political subdivision shall follow in reviewing an 14
application for approval under s. 66.0401 (4).
4. Specify the requirements and procedures for a political subdivision to enforce 16
the restrictions allowed under par. (b).
SB185, s. 11
196.491 (3) (dg) of the statutes is created to read:
(dg) In making a determination under par. (d) that applies to a large 19
electric generating facility, if the large electric generating facility is a wind energy 20
system, as defined in s. 66.0403 (1) (m), the commission shall consider whether 21
installation or use of the facility is consistent with the restrictions specified in the 22
rules promulgated by the commission under s. 196.378 (4g) (b).
(1) Advisory committee.
(a) In this subsection:
1. "Political subdivision" means a city, village, town, or county.
2. "Wind energy system" has the meaning given in section 66.0403 (1) (m) of 3
the statutes, as affected by this act.
(b) Before the public service commission may promulgate the rules required 5
under section 196.378 (4g) of the statutes, as created by this act, the commission shall 6
establish an advisory committee under section 227.13 of the statutes, composed of 7
representatives of wind energy system developers, political subdivisions, energy 8
groups, environmental groups, realtors, landowners who live adjacent to or in the 9
vicinity of wind energy systems and who have not received compensation by or on 10
behalf of owners, operators, or developers of wind energy systems, and the public, to 11
advise the commission on the rules.
(1) The public service commission review process for a political subdivision's 14
decision or enforcement action under section 66.0401 (5) of the statutes, as created 15
by this act, first applies to a local decision or action that is issued or initiated after 16
the public service commission's rules under section 196.378 (4g) of the statutes, as 17
created by this act, take effect.
(2) The treatment of section 196.491 (3) (dg) of the statutes, as created by this 19
act, first applies to applications for certificates of public convenience and necessity 20
that are received after the public service commission's rules under section 196.378 21
(4g) of the statutes, as created by this act, take effect.