Amendment SSA3-SB544

LRBs0364/1

MES&MDK:cs:nwn

2007 - 2008 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 3, TO 2007 SENATE BILL 544

March 12, 2008 - Offered by Senators Vinehout and Cowles.

SB544-SSA3,1,5 An Act to renumber and amend 66.0401 (1); to amend 15.795 (title) and 66.0401 (2); and to create 15.795 (2), 66.0401 (1e), 66.0401 (3), 66.0401 (4), 66.0401 (5), 66.0401 (6), 66.0401 (7) and 165.25 (4) (aw) of the statutes; relating to: local regulation of wind energy systems, creation of a wind energy system siting review board, and granting rule-making authority.

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

SB544-SSA3, s. 1 Section 1. 15.795 (title) of the statutes is amended to read:

SB544-SSA3,1,7 15.795 (title) Same; attached office and board.

SB544-SSA3, s. 2 Section 2. 15.795 (2) of the statutes is created to read:

SB544-SSA3,1,10 15.795 (2) Wind energy system siting review board. (a) In this section, "wind energy system" has the meaning given in s. 66.0403 (1) (m).

SB544-SSA3,2,3 (b) There is created a wind energy system siting review board which is attached to the public service commission under s. 15.03. The board consists of the following members:

SB544-SSA3,2,5 1. A member representing the interests of towns, selected from a list of names submitted by the Wisconsin Towns Association.

SB544-SSA3,2,7 2. A member representing the interests of counties, selected from a list of names submitted by the Wisconsin Counties Association.

SB544-SSA3,2,9 3. A member representing wind energy development interests, selected from a list of names submitted by wind energy developers.

SB544-SSA3,2,12 4. A member representing renewable energy or environmental interests, selected from a list of names submitted by statewide renewable energy or environmental organizations.

SB544-SSA3,2,13 5. Three other members.

SB544-SSA3,2,15 (c) The members under par. (b) shall be nominated by the governor, and with the advice and consent of the senate appointed, for 5-year terms.

SB544-SSA3, s. 3 Section 3. 66.0401 (1) of the statutes is renumbered 66.0401 (1m), and 66.0401 (1m) (intro.), as renumbered, is amended to read:

SB544-SSA3,2,24 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 board under sub. (7). 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-SSA3, s. 4 Section 4. 66.0401 (1e) of the statutes is created to read:

SB544-SSA3,3,1 66.0401 (1e) Definitions. In this section:

SB544-SSA3,3,3 (a) "Application for approval" means an application for approval of a wind energy system under rules promulgated by the board under sub. (7) (b) 1.

SB544-SSA3,3,5 (am) "Board" means the wind energy system siting review board under s. 15.795 (2).

SB544-SSA3,3,6 (b) "Commission" means the Public Service Commission.

SB544-SSA3,3,8 (c) "Large wind energy system" means a wind energy system that has a nominal capacity of at least one megawatt.

SB544-SSA3,3,9 (d) "Municipality" means a city, village, or town.

SB544-SSA3,3,10 (e) "Political subdivision" means a city, village, town, or county.

SB544-SSA3,3,11 (f) "Wind energy system" has the meaning given in s. 66.0403 (1) (m).

SB544-SSA3, s. 5 Section 5. 66.0401 (2) of the statutes is amended to read:

SB544-SSA3,3,22 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-SSA3, s. 6 Section 6. 66.0401 (3) of the statutes is created to read:

SB544-SSA3,4,3 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 board to impose reasonable restrictions on the testing activity.

SB544-SSA3, s. 7 Section 7. 66.0401 (4) of the statutes is created to read:

SB544-SSA3,4,11 66.0401 (4) Political subdivision procedure. (a) 1. Subject to subd. 2., no later than 45 days after a political subdivision receives an application for approval, the political subdivision shall notify the applicant whether the application for approval is complete and, if it is not complete, what information is needed to complete the application for approval. As soon as the applicant has provided all of the required information, the political subdivision shall notify the applicant that the application for approval is complete.

SB544-SSA3,4,16 2. If a political subdivision that receives an application for approval under subd. 1. does not have in effect an ordinance described under par. (g), the 45 day time period for determining whether an application is complete, as described in subd. 1., does not begin until the first day of the 7th month beginning after the political subdivision receives the application.

SB544-SSA3,4,20 (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.

SB544-SSA3,4,23 (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).

SB544-SSA3,5,8 (d) Except as provided in par. (e), a political subdivision shall approve or disapprove an application for approval no more than 90 days after the day on which it notifies the applicant that the application for approval is complete. If an applicant complies with the rules promulgated under sub. (7) (b) 1. and the information and documentation provided by the applicant is sufficient to establish, without considering any other information or documentation, that the application complies with applicable requirements for approval, the political subdivision shall approve the application unless the political subdivision finds, based on other clear and convincing information or documentation in the record, that the application does not comply with applicable requirements.

SB544-SSA3,5,13 (e) A political subdivision may extend the time limit in par. (d) if the political subdivision needs additional information to determine whether to approve or deny the application for approval, if the applicant makes a material modification to the application for approval, or for other good cause specified in writing by the political subdivision.

SB544-SSA3,5,16 (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 board promulgates under sub (7) (a).

SB544-SSA3,5,19 (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 board in rules promulgated under sub. (7) (a).

SB544-SSA3,5,22 (h) A political subdivision may not place a restriction on the installation or use of a wind energy system that is more restrictive than the rules the board promulgates under sub (7) (a).

SB544-SSA3, s. 8 Section 8. 66.0401 (5) of the statutes is created to read:

SB544-SSA3,6,3 66.0401 (5) Review of siting decisions. (a) In this subsection "aggrieved person" means a person who applied to a political subdivision for approval of a wind energy system, a person who lives within 2 miles of a wind energy system that is proposed to be sited, or a person who owns land within 2 miles of a wind energy system that is proposed to be sited.

SB544-SSA3,6,13 (b) An aggrieved person may challenge the decision of a political subdivision on an application for approval on the grounds that the political subdivision incorrectly applied the state standards under sub. (7) (a) that are applicable to the wind energy system siting by requesting the board to review the decision. An aggrieved person is not required to exhaust the political subdivision's administrative remedies before requesting review by the board. An aggrieved person shall request a review under this paragraph within 30 days after the political subdivision approves or disapproves the application for approval or, if the aggrieved person chooses to exhaust the political subdivision's administrative remedies, within 30 days after the final decision in the political subdivision's administrative review process.

SB544-SSA3,6,17 (bm) Upon receiving a request under par. (b), the board shall notify the political subdivision of the request. The political subdivision shall provide a certified copy of the record under sub. (4) to the board within 30 days after the day on which it receives the notice.

SB544-SSA3,6,24 (c) Upon receiving the certified copy of the record under par. (bm), the board shall determine whether the challenge is valid. The board shall make its decision without deference to the decision of the political subdivision and shall base its decision only on the evidence in the record under sub. (4) (b). The board shall make its decision within 60 days after the day on which it receives the certified copy of the record under par. (bm), except that the board may extend this time limit for good cause specified in writing by the board.

SB544-SSA3,7,5 (d) If the board determines that a challenge is valid, the board shall reverse the decision of the political subdivision. The decision of the board is binding on the political subdivision, subject to par. (e). If a political subdivision fails to comply with a decision of the board that has not been appealed under par. (e), an aggrieved person may bring an action to enforce the decision.

SB544-SSA3,7,8 (e) An aggrieved person or the political subdivision may appeal the decision of the board to circuit court. The filing of an appeal does not in itself stay the effect of a decision of the board.

SB544-SSA3,7,11 (f) A circuit court to which a decision of the board is appealed under par. (e) shall review the decision of the board based on the evidence in the record under sub. (4) (b).