Chapter 66

66.0401(5) (5) Public service commission review.

66.0401(5)(a) (a) A decision of a political subdivision to determine that an application is incomplete under sub. (4) (a) 1., or to approve, disapprove, or impose a restriction upon a wind energy system, or an action of a political subdivision to enforce a restriction on a wind energy system, may be appealed only as provided in this subsection.

66.0401(5)(b) (b)

66.0401(5)(b)1. 1. Any aggrieved person seeking to appeal a decision or enforcement action specified in par. (a) 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. For purposes of this subdivision, if a political subdivision fails to complete its administrative review process within 90 days after an aggrieved person begins the review process, the political subdivision is considered to have completed the process on the 90th day after the person began the process.

66.0401(5)(b)2. 2. Rather than beginning an administrative review under subd. 1., an aggrieved person seeking to appeal a decision or enforcement action of a political subdivision specified in par. (a) 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 or initiation of the enforcement action.

66.0401(5)(b)3. 3. An applicant whose application for approval is denied under sub. (4) (f) 2. may appeal the denial to the commission. The commission may grant the appeal notwithstanding the inconsistency of the application for approval with the political subdivision’s planned residential or commercial development if the commission determines that granting the appeal is consistent with the public interest.

66.0401(5)(c) (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 or enforcement action within 30 days after receiving notice. The commission may request of the political subdivision any other relevant governmental records and, if requested, the political subdivision shall provide such records within 30 days after receiving the request.

66.0401(5)(d) (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 records 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 or enforcement action 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.

66.0401(5)(e) (e) In conducting a review under par. (d), the commission may treat a political subdivision’s determination that an application under sub. (4) (a) 1. is incomplete as a decision to disapprove the application if the commission determines that a political subdivision has unreasonably withheld its determination that an application is complete.

66.0401(5)(f) (f) Judicial review is not available until the commission issues its decision or order under par. (d). Judicial review shall be of the commission’s decision or order, not of the political subdivision’s decision or enforcement action. The commission’s decision or order is subject to judicial review under ch. 227. Injunctive relief is available only as provided in s. 196.43.

66.0401(6) (6) Applicability of a political subdivision or county ordinance.

66.0401(6)(a) (a)

66.0401(6)(a)1. 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).

66.0401(6)(a)2. 2. If a town enacts an ordinance under sub. (2) after a county has enacted an ordinance under sub. (2), the county ordinance does not apply, and may not be enforced, in the town, except that if the town later repeals its ordinance, the county ordinance applies in that town.

66.0401(6)(b) (b)

66.0401(6)(b)1. 1. Subject to subd. 2., a county ordinance enacted under sub. (4) applies only in the unincorporated parts of the county.

66.0401(6)(b)2. 2. If a town enacts an ordinance under sub. (4), either before or after a county enacts an ordinance under sub. (4), the more restrictive terms of the 2 ordinances apply to the town, except that if the town later repeals its ordinance, the county ordinance applies in that town.

66.0401(6)(c) (c) If a political subdivision enacts an ordinance under sub. (4) (g) after the commission’s rules promulgated under s. 196.378 (4g) take effect, the political subdivision may not apply that ordinance to, or require approvals under that ordinance for, a wind energy system approved by the political subdivision under a previous ordinance or under a development agreement.

66.0401 History History: 1981 c. 354; 1981 c. 391 s. 210; 1993 a. 414; 1999 a. 150 ss. 78, 79, 84; Stats. 1999 s. 66.0401; 2001 a. 30; 2009 a. 40.

66.0401 Annotation This section is a legislative restriction on the ability of municipalities to regulate solar and wind energy systems. The statute is not superseded by s. 66.0403 or municipal zoning or conditional use powers. A municipality’s consideration of an application for a conditional use permit for a system under this section must be in light of the restrictions placed on local regulation by this section. State ex rel. Numrich v. City of Mequon Board of Zoning Appeals, 2001 WI App 88, 242 Wis. 2d 677, 626 N.W.2d 366, 00-1643.

66.0401 Annotation Sub. (1) [now sub. (1m)] requires a case-by-case approach, such as a conditional use permit procedure, and does not allow political subdivisions to find legislative facts or make policy. The local governing arm must hear the specifics of the particular system and then decide whether a restriction is warranted. It may not promulgate an ordinance in which it arbitrarily sets a “one size fits all” scheme of requirements for any system. The conditions listed in sub. (1) (a) to (c) [now sub. (1m) (a) to (c)] are the standards circumscribing the power of political subdivisions, not openings for them to make policy that is contrary to the state’s expressed policy. Ecker Bros. v. Calumet County, 2009 WI App 112, 321 Wis. 2d 51, 772 N.W.2d 240, 07-2109.

66.0403 66.0403 Solar and wind access permits.

66.0403(1) (1) Definitions. In this section:

66.0403(1)(a) (a) “Agency” means the governing body of a municipality which has provided for granting a permit or the agency which the governing body of a municipality creates or designates under sub. (2). “Agency” includes an officer or employee of the municipality.

66.0403(1)(b) (b) “Applicant” means an owner applying for a permit under this section.

66.0403(1)(c) (c) “Application” means an application for a permit under this section.

66.0403(1)(d) (d) “Collector surface” means any part of a solar collector that absorbs solar energy for use in the collector’s energy transformation process. “Collector surface” does not include frames, supports and mounting hardware.

66.0403(1)(e) (e) “Collector use period” means 9 a.m. to 3 p.m. standard time daily.

66.0403(1)(f) (f) “Impermissible interference” means the blockage of wind from a wind energy system or solar energy from a collector surface or proposed collector surface for which a permit has been granted under this section during a collector use period if such blockage is by any structure or vegetation on property, an owner of which was notified under sub. (3) (b). “Impermissible interference” does not include:

66.0403(1)(f)1. 1. Blockage by a narrow protrusion, including but not limited to a pole or wire, which does not substantially interfere with absorption of solar energy by a solar collector or does not substantially block wind from a wind energy system.

66.0403(1)(f)2. 2. Blockage by any structure constructed, under construction or for which a building permit has been applied for before the date the last notice is mailed or delivered under sub. (3) (b).

66.0403(1)(f)3. 3. Blockage by any vegetation planted before the date the last notice is mailed or delivered under sub. (3) (b) unless a municipality by ordinance under sub. (2) defines impermissible interference to include such vegetation.

66.0403(1)(g) (g) “Municipality” means any county with a zoning ordinance under s. 59.69, any town with a zoning ordinance under s. 60.61, any city with a zoning ordinance under s. 62.23 (7), any 1st class city or any village with a zoning ordinance under s. 61.35.

66.0403(1)(h) (h) “Owner” means at least one owner, as defined under s. 66.0217 (1) (d), of a property or the personal representative of at least one owner.

66.0403(1)(i) (i) “Permit” means a solar access permit or a wind access permit issued under this section.

66.0403(1)(j) (j) “Solar collector” means a device, structure or a part of a device or structure a substantial purpose of which is to transform solar energy into thermal, mechanical, chemical or electrical energy.

66.0403(1)(k) (k) “Solar energy” means direct radiant energy received from the sun.

66.0403(1)(L) (L) “Standard time” means the solar time of the ninetieth meridian west of Greenwich.

66.0403(1)(m) (m) “Wind energy system” means equipment and associated facilities that convert and then store or transfer energy from the wind into usable forms of energy.

66.0403(2) (2) Permit procedure. The governing body of every municipality may provide for granting a permit. A permit may not affect any land except land which, at the time the permit is granted, is within the territorial limits of the municipality or is subject to an extraterritorial zoning ordinance adopted under s. 62.23 (7a), except that a permit issued by a city or village may not affect extraterritorial land subject to a zoning ordinance adopted by a county or a town. The governing body may appoint itself as the agency to process applications or may create or designate another agency to grant permits. The governing body may provide by ordinance that a fee be charged to cover the costs of processing applications. The governing body may adopt an ordinance with any provision it deems necessary for granting a permit under this section, including but not limited to:

66.0403(2)(a) (a) Specifying standards for agency determinations under sub. (5) (a).

66.0403(2)(b) (b) Defining an impermissible interference to include vegetation planted before the date the last notice is mailed or delivered under sub. (3) (b), provided that the permit holder shall be responsible for the cost of trimming such vegetation.

66.0403(3) (3) Permit applications.

66.0403(3)(a) (a) In a municipality which provides for granting a permit under this section, an owner who has installed or intends to install a solar collector or wind energy system may apply to an agency for a permit.

66.0403(3)(b) (b) An agency shall determine if an application is satisfactorily completed and shall notify the applicant of its determination. If an applicant receives notice that an application has been satisfactorily completed, the applicant shall deliver by certified mail or by hand a notice to the owner of any property which the applicant proposes to be restricted by the permit under sub. (7). The applicant shall submit to the agency a copy of a signed receipt for every notice delivered under this paragraph. The agency shall supply the notice form. The information on the form may include, without limitation because of enumeration:

66.0403(3)(b)1. 1. The name and address of the applicant, and the address of the land upon which the solar collector or wind energy system is or will be located.

66.0403(3)(b)2. 2. That an application has been filed by the applicant.

66.0403(3)(b)3. 3. That the permit, if granted, may affect the rights of the notified owner to develop his or her property and to plant vegetation.

66.0403(3)(b)4. 4. The telephone number, address and office hours of the agency.

66.0403(3)(b)5. 5. That any person may request a hearing under sub. (4) within 30 days after receipt of the notice, and the address and procedure for filing the request.

66.0403(4) (4) Hearing. Within 30 days after receipt of the notice under sub. (3) (b), any person who has received a notice may file a request for a hearing on the granting of a permit or the agency may determine that a hearing is necessary even if no such request is filed. If a request is filed or if the agency determines that a hearing is necessary, the agency shall conduct a hearing on the application within 90 days after the last notice is delivered. At least 30 days prior to the hearing date, the agency shall notify the applicant, all owners notified under sub. (3) (b) and any other person filing a request of the time and place of the hearing.

66.0403(5) (5) Permit grant.

66.0403(5)(a) (a) The agency shall grant a permit if the agency determines that:

66.0403(5)(a)1. 1. The granting of a permit will not unreasonably interfere with the orderly land use and development plans of the municipality;

66.0403(5)(a)2. 2. No person has demonstrated that she or he has present plans to build a structure that would create an impermissible interference by showing that she or he has applied for a building permit prior to receipt of a notice under sub. (3) (b), has expended at least $500 on planning or designing such a structure or by submitting any other credible evidence that she or he has made substantial progress toward planning or constructing a structure that would create an impermissible interference; and

66.0403(5)(a)3. 3. The benefits to the applicant and the public will exceed any burdens.

66.0403(5)(b) (b) An agency may grant a permit subject to any condition or exemption the agency deems necessary to minimize the possibility that the future development of nearby property will create an impermissible interference or to minimize any other burden on any person affected by granting the permit. Such conditions or exemptions may include but are not limited to restrictions on the location of the solar collector or wind energy system and requirements for the compensation of persons affected by the granting of the permit.

66.0403(6) (6) Record of permit. If an agency grants a permit:

66.0403(6)(a) (a) The agency shall specify the property restricted by the permit under sub. (7) and shall prepare notice of the granting of the permit. The notice shall include the identification required under s. 706.05 (2) (c) for the owner and the property upon which the solar collector or wind energy system is or will be located and for any owner and property restricted by the permit under sub. (7), and shall indicate that the property may not be developed and vegetation may not be planted on the property so as to create an impermissible interference with the solar collector or wind energy system which is the subject of the permit unless the permit affecting the property is terminated under sub. (9) or unless an agreement affecting the property is filed under sub. (10).

66.0403(6)(b) (b) The applicant shall record with the register of deeds of the county in which the property is located the notice under par. (a) for each property specified under par. (a) and for the property upon which the solar collector or wind energy system is or will be located.

66.0403(7) (7) Remedies for impermissible interference.

66.0403(7)(a) (a) Any person who uses property which he or she owns or permits any other person to use the property in a way which creates an impermissible interference under a permit which has been granted or which is the subject of an application shall be liable to the permit holder or applicant for damages, except as provided under par. (b), for any loss due to the impermissible interference, court costs and reasonable attorney fees unless:

66.0403(7)(a)1. 1. The building permit was applied for prior to receipt of a notice under sub. (3) (b) or the agency determines not to grant a permit after a hearing under sub. (4).

66.0403(7)(a)2. 2. A permit affecting the property is terminated under sub. (9).

66.0403(7)(a)3. 3. An agreement affecting the property is filed under sub. (10).

66.0403(7)(b) (b) A permit holder is entitled to an injunction to require the trimming of any vegetation which creates or would create an impermissible interference as defined under sub. (1) (f). If the court finds on behalf of the permit holder, the permit holder shall be entitled to a permanent injunction, damages, court costs and reasonable attorney fees.

66.0403(8) (8) Appeals. Any person aggrieved by a determination by a municipality under this section may appeal the determination to the circuit court for a review.

66.0403(9) (9) Termination of solar or wind access rights.

66.0403(9)(a) (a) Any right protected by a permit under this section shall terminate if the agency determines that the solar collector or wind energy system which is the subject of the permit is:

66.0403(9)(a)1. 1. Permanently removed or is not used for 2 consecutive years, excluding time spent on repairs or improvements.

66.0403(9)(a)2. 2. Not installed and functioning within 2 years after the date of issuance of the permit.

66.0403(9)(b) (b) The agency shall give the permit holder written notice and an opportunity for a hearing on a proposed termination under par. (a).

66.0403(9)(c) (c) If the agency terminates a permit, the agency may charge the permit holder for the cost of recording and record a notice of termination with the register of deeds, who shall record the notice with the notice recorded under sub. (6) (b) or indicate on any notice recorded under sub. (6) (b) that the permit has been terminated.

66.0403(10) (10) Waiver. A permit holder by written agreement may waive all or part of any right protected by a permit. A copy of such agreement shall be recorded with the register of deeds, who shall record such copy with the notice recorded under sub. (6) (b).

66.0403(11) (11) Preservation of rights. The transfer of title to any property shall not change the rights and duties under this section or under an ordinance adopted under sub. (2).

66.0403(12) (12) Construction.

66.0403(12)(a) (a) This section may not be construed to require that an owner obtain a permit prior to installing a solar collector or wind energy system.

66.0403(12)(b) (b) This section may not be construed to mean that acquisition of a renewable energy resource easement under s. 700.35 is in any way contingent upon the granting of a permit under this section.

66.0403 History History: 1981 c. 354; 1983 a. 189 s. 329 (14); 1983 a. 532 s. 36; 1993 a. 414; 1995 a. 201; 1999 a. 150 s. 82; Stats. 1999 s. 66.0403; 2007 a. 97; 2009 a. 40.

66.0403 Annotation Discussing the common law right to solar access. Prah v. Maretti, 108 Wis. 2d 223, 321 N.W.2d 182 (1982).

66.0403 Annotation The owner of an energy system does not need a permit under this section. Barring enforceable municipal restrictions, an owner may construct a system without prior municipal approval. This section benefits and protects the owner of the system by restricting the use of nearby property to prevent an interference with the system. State ex rel. Numrich v. City of Mequon Board of Zoning Appeals, 2001 WI App 88, 242 Wis. 2d 677, 626 N.W.2d 366, 00-1643.

66.0403 Annotation Wisconsin Recognizes the Power of the Sun: Prah v. Maretti and the Solar Access Act. Grunow. 1983 WLR 1263.

66.0404 66.0404 Mobile tower siting regulations.

66.0404(1) (1) Definitions. In this section:

66.0404(1)(a) (a) “Antenna” means communications equipment that transmits and receives electromagnetic radio signals and is used in the provision of mobile services.

66.0404(1)(b) (b) “Application” means an application for a permit under this section to engage in an activity specified in sub. (2) (a) or a class 2 collocation.

66.0404(1)(c) (c) “Building permit” means a permit issued by a political subdivision that authorizes an applicant to conduct construction activity that is consistent with the political subdivision’s building code.

66.0404(1)(d) (d) “Class 1 collocation” means the placement of a new mobile service facility on an existing support structure such that the owner of the facility does not need to construct a free standing support structure for the facility but does need to engage in substantial modification.

66.0404(1)(e) (e) “Class 2 collocation” means the placement of a new mobile service facility on an existing support structure such that the owner of the facility does not need to construct a free standing support structure for the facility or engage in substantial modification.