LRB-2755/1
MES&MDK:kjf:jf
2009 - 2010 LEGISLATURE
May 5, 2009 - Introduced by Representatives Soletski, Parisi, Montgomery, Black,
Clark, Hilgenberg, Honadel, Mason, Molepske Jr., Pasch, Pocan, Richards,
Roys, Smith, Spanbauer, Stone, Suder, Townsend, Vruwink
and Wood,
cosponsored by Senators Plale, Hopper, Coggs, Hansen, Holperin, Kreitlow,
Miller, Risser, Sullivan, Taylor
and Wirch. Referred to Committee on
Energy and Utilities.
AB256,1,5 1An Act to renumber and amend 66.0401 (1); to amend 66.0401 (2) and
266.0403 (1) (m); to repeal and recreate 196.378 (4) (title); and to create
366.0401 (1e), 66.0401 (3), 66.0401 (4), 66.0401 (5), 66.0401 (6), 196.378 (4g) and
4196.491 (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:
AB256, s. 1 1Section 1. 66.0401 (1) of the statutes is renumbered 66.0401 (1m), and 66.0401
2(1m) (intro.), as renumbered, is amended to read:
AB256,3,8
166.0401 (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
5subdivision
may place any restriction, either directly or in effect, on the installation
6or use of a solar energy system, as defined in s. 13.48 (2) (h) 1. g., or a wind energy
7system, as defined in s. 66.0403 (1) (m), unless the restriction satisfies one of the
8following conditions:
AB256, s. 2 9Section 2. 66.0401 (1e) of the statutes is created to read:
AB256,3,1010 66.0401 (1e) Definitions. In this section:
AB256,3,1311 (a) "Application for approval" means an application for approval of a wind
12energy system under rules promulgated by the commission under s. 196.378 (4g) (c)
131.
AB256,3,1414 (b) "Commission" means the public service commission.
AB256,3,1615 (c) "Large wind energy system" means a wind energy system that has a nominal
16capacity of at least one megawatt.
AB256,3,1717 (d) "Municipality" means a city, village, or town.
AB256,3,1818 (e) "Political subdivision" means a city, village, town, or county.
AB256,3,1919 (f) "Wind energy system" has the meaning given in s. 66.0403 (1) (m).
AB256, s. 3 20Section 3. 66.0401 (2) of the statutes is amended to read:
AB256,4,521 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
24energy, as defined in s. 66.0403 (1) (k), from a collector surface, as defined under s.
25700.41 (2) (b), or that blocks wind from a wind energy system, as defined in s. 66.0403

1(1) (m)
. The ordinance may include, but is not limited to, a designation of
2responsibility for the costs of the trimming. The ordinance may not require the
3trimming of vegetation that was planted by the owner or occupant of the property on
4which the vegetation is located before the installation of the solar or wind energy
5system.
AB256, s. 4 6Section 4. 66.0401 (3) of the statutes is created to read:
AB256,4,117 66.0401 (3) Testing activities. A political subdivision may not prohibit or
8restrict any person from conducting testing activities to determine the suitability of
9a site for the placement of a wind energy system. A political subdivision objecting
10to such testing may petition the commission to impose reasonable restrictions on the
11testing activity.
AB256, s. 5 12Section 5. 66.0401 (4) of the statutes is created to read:
AB256,4,2213 66.0401 (4) Local procedure. (a) 1. Subject to subd. 2., a political subdivision
14that receives an application for approval shall determine whether it is complete and,
15no later than 45 days after the application is filed, notify the applicant about the
16determination. If the political subdivision determines that the application is
17incomplete, the notice shall state the reason for the determination. An applicant
18may supplement and refile an application that the political subdivision has
19determined to be incomplete. There is no limit on the number of times that an
20applicant may refile an application for approval. If the political subdivision fails to
21determine whether an application for approval is complete within 45 days after the
22application is filed, the application shall be considered to be complete.
AB256,5,523 2. If a political subdivision that receives an application for approval under
24subd. 1. does not have in effect an ordinance described under par. (g), the 45-day time
25period for determining whether an application is complete, as described in subd. 1.,

1does not begin until the first day of the 4th month beginning after the political
2subdivision receives the application. A political subdivision may notify an applicant
3at any time, after receipt of the application and before the first day of the 4th month
4after its receipt, that it does not intend to enact an ordinance described under par.
5(g).
AB256,5,86 3. On the same day that an applicant makes an application for approval under
7subd. 1. for a wind energy system the applicant shall mail or deliver written notice
8of the application to the owners of land adjoining the site of the wind energy system.
AB256,5,149 4. If an applicant's application is approved or considered to be approved under
10subd. 1., or if the application is not subject to regulation because the political
11subdivision does not enact an ordinance described under par. (g) within the time
12specified in subd. 2., a political subdivision may not consider an applicant's minor
13modification to the application to constitute a new application for the purposes of this
14subsection.
AB256,5,1815 5. If an applicant's application is considered to be approved under subd. 1., or
16if the application is not subject to regulation as described in subd. 4., a political
17subdivision may not regulate the wind energy system, to which the application
18applies, under par. (g).
AB256,5,2419 (b) A political subdivision shall make a record of its decision making on an
20application for approval, including a recording of any public hearing, copies of
21documents submitted at any public hearing, and copies of any other documents
22provided to the political subdivision in connection with the application for approval.
23The political subdivision's record shall conform to the commission's rules
24promulgated under s. 196.378 (4g) (c) 2.
AB256,6,4
1(c) A political subdivision shall base its decision on an application for approval
2on 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
4shall conform to the commission's rules promulgated under s. 196.378 (4g) (c) 3.
AB256,6,95 (d) Except as provided in par. (e), a political subdivision shall approve or
6disapprove an application for approval no later than 90 days after the day on which
7it notifies the applicant that the application for approval is complete. If a political
8subdivision fails to act within the 90 days, or within any extended time period
9established under par. (e), the application is considered approved.
AB256,6,1310 (e) A political subdivision may extend the time period in par. (d) if, within that
1190-day period, the political subdivision authorizes the extension in writing. Any
12combination of the following extensions may be granted, except that the total amount
13of time for all extensions granted under this paragraph may not exceed 90 days:
AB256,6,1514 1. An extension of up to 45 days if the political subdivision needs additional
15information to determine whether to approve or deny the application for approval.
AB256,6,1716 2. An extension of up to 90 days if the applicant makes a material modification
17to the application for approval.
AB256,6,1918 3. An extension of up to 90 days for other good cause specified in writing by the
19political subdivision.
AB256,6,2220 (f) A political subdivision may not deny or impose a restriction on an application
21for approval unless the political subdivision enacts an ordinance that is no more
22restrictive than the rules the commission promulgates under s. 196.378 (4g) (b).
AB256,7,223 (g) A political subdivision that chooses to regulate wind energy systems shall
24enact an ordinance, subject to sub. (6) (b), that is no more restrictive than the

1applicable standards established by the commission in rules promulgated under s.
2196.378 (4g).
AB256, s. 6 3Section 6. 66.0401 (5) of the statutes is created to read:
AB256,7,84 66.0401 (5) Public service commission review. (a) A decision of a political
5subdivision to determine that an application is incomplete under sub. (4) (a) 1., or to
6approve, disapprove, or impose a restriction upon a large wind energy system, or an
7action of a political subdivision to enforce a restriction on a large wind energy system,
8may be appealed only as provided in this subsection.
AB256,7,189 (b) 1. Any aggrieved person seeking to appeal a decision or enforcement action
10specified in par. (a) may begin the political subdivision's administrative review
11process. If the person is still aggrieved after the administrative review is completed,
12the person may file an appeal with the commission. No appeal to the commission
13under this subdivision may be filed later than 30 days after the political subdivision
14has completed its administrative review process. For purposes of this subdivision,
15if a political subdivision fails to complete its administrative review process within 90
16days after an aggrieved person begins the review process, the political subdivision
17is considered to have completed the process on the 90th day after the person began
18the process.
AB256,7,2319 2. Rather than beginning an administrative review under subd. 1., an
20aggrieved person seeking to appeal a decision or enforcement action of a political
21subdivision specified in par. (a) may file an appeal directly with the commission. No
22appeal to the commission under this subdivision may be filed later than 30 days after
23the decision or initiation of the enforcement action.
AB256,8,424 (c) Upon receiving an appeal under par. (b), the commission shall notify the
25political subdivision. The political subdivision shall provide a certified copy of the

1record upon which it based its decision or enforcement action within 30 days after
2receiving notice. The commission may request of the political subdivision any other
3relevant governmental records and, if requested, the political subdivision shall
4provide such records within 30 days after receiving the request.
AB256,8,135 (d) The commission may confine its review to the records it receives from the
6political subdivision or, if it finds that additional information would be relevant to
7its decision, expand the records it reviews. The commission shall issue a decision
8within 90 days after the date on which it receives all of the records it requests under
9par. (c), unless for good cause the commission extends this time period in writing.
10If the commission determines that the political subdivision's decision or enforcement
11action does not comply with the rules it promulgates under s. 196.378 (4g) or is
12otherwise unreasonable, the political subdivision's decision shall be superseded by
13the commission's decision and the commission may order an appropriate remedy.
AB256,8,1614 (e) In conducting a review under par. (d), the commission may treat a political
15subdivision's determination that an application under sub. (4) (a) 1. is incomplete as
16a decision to disapprove the application.
AB256,8,2117 (f) Judicial review is not available until the commission issues its decision or
18order under par. (d). Judicial review shall be of the commission's decision or order,
19not of the political subdivision's decision or enforcement action. The commission's
20decision or order is subject to judicial review under ch. 227. Injunctive relief is
21available only as provided in s. 196.43.
AB256, s. 7 22Section 7. 66.0401 (6) of the statutes is created to read:
AB256,8,2523 66.0401 (6) Applicability of a county ordinance. (a) 1. A county ordinance
24enacted under sub. (2) applies only to the towns in the county that have not enacted
25an ordinance under sub. (2).
AB256,9,4
12. If a town enacts an ordinance under sub. (2) after a county has enacted an
2ordinance under sub. (2), the county ordinance does not apply, and may not be
3enforced, in the town, except that if the town later repeals its ordinance, the county
4ordinance applies in that town.
AB256,9,65 (b) 1. Subject to subd. 2., a county ordinance enacted under sub. (4) applies only
6in the unincorporated parts of the county.
AB256,9,107 2. If a town enacts an ordinance under sub. (4), either before or after a county
8enacts an ordinance under sub. (4), the more restrictive terms of the 2 ordinances
9apply to the town, except that if the town later repeals its ordinance, the county
10ordinance applies in that town.
AB256, s. 8 11Section 8. 66.0403 (1) (m) of the statutes is amended to read:
AB256,9,1412 66.0403 (1) (m) "Wind energy system" means equipment and associated
13facilities
that converts convert and then stores store or transfers transfer energy
14from the wind into usable forms of energy.
AB256, s. 9 15Section 9. 196.378 (4) (title) of the statutes is repealed and recreated to read:
AB256,9,1616 196.378 (4) (title) Renewable resource rules.
AB256, s. 10 17Section 10. 196.378 (4g) of the statutes is created to read:
AB256,9,1818 196.378 (4g) Wind siting rules. (a) In this subsection:
AB256,9,1919 1. "Application for approval" has the meaning given in s. 66.0401 (1e) (a).
AB256,9,2020 2. "Political subdivision" means a city, village, town, or county.
AB256,9,2121 3. "Wind energy system" has the meaning given in s. 66.0403 (1) (m).
AB256,9,2522 (b) The commission shall promulgate rules that specify the restrictions a
23political subdivision may impose on the installation or use of a wind energy system
24consistent with the conditions specified in s. 66.0401 (1m) (a) to (c). The subject
25matter of these rules may include visual appearance, lighting, electrical connections

1to the power grid, setback distances, maximum audible sound levels, shadow flicker,
2proper means of measuring noise, interference with radio, telephone, or television
3signals, decommissioning, or other matters. A political subdivision may not place a
4restriction on the installation or use of a wind energy system that is more restrictive
5than these rules.
AB256,10,76 (c) In addition to the rules under par. (b), the commission shall promulgate
7rules that do all of the following:
AB256,10,108 1. Specify the information and documentation to be provided in an application
9for approval to demonstrate that a proposed wind energy system complies with rules
10promulgated under par. (b)
AB256,10,1211 2. Specify the information and documentation to be included in a political
12subdivision's record of decision under s. 66.0401 (4) (b).
AB256,10,1413 3. Specify the procedure a political subdivision shall follow in reviewing an
14application for approval under s. 66.0401 (4).
AB256,10,1615 4. Specify the requirements and procedures for a political subdivision to enforce
16the restrictions allowed under par. (b).
AB256, s. 11 17Section 11. 196.491 (3) (dg) of the statutes is created to read:
AB256,10,2218 196.491 (3) (dg) In making a determination under par. (d) that applies to a large
19electric generating facility, if the large electric generating facility is a wind energy
20system, as defined in s. 66.0403 (1) (m), the commission shall consider whether
21installation or use of the facility is consistent with the restrictions specified in the
22rules promulgated by the commission under s. 196.378 (4g) (b).
AB256, s. 12 23Section 12. Nonstatutory provisions.
AB256,10,2424 (1) Advisory committee.
AB256,10,2525 (a) In this subsection:
AB256,11,1
11. "Political subdivision" means a city, village, town, or county.
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