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1/29/08 P is for Pressure, Permits, Powerlines and the Public Service Commission

P is for Pressure, Permits,

Powerlines and the PSC.

These are excerpts from a transcribed audio recording of the March 8, 2007, Town of Magnolia Planning and Zoning Commission meeting in Rock County, Wisconsin. The topic is a wind developer's application to the township for a permit to erect a tower to measure wind speeds

Instead of speaking to the commissioners directly, the wind developer has decided to have a lawyer do the talking for them. The map above shows the developer's target area.

The voices in this transcript have been identified to the best of our ability. If we've made any errors, please contact us and we will correct them.

Attorney David Moore: I’m Dave Moore. I’m an attorney from Janesville and EcoEnergy LLC has asked me to both take a look at this and kind of assist them in telling you folks what this application is about and where we’re coming from.

I hope to bring some clarity to, uh, what we’re asking for here.

I wasn’t present at the last meeting of course, and I know many of you were, and as you pointed out Mr. Chairman, I know there was a lot of discussion about wind farms and wind generated energy at that time, which is understandable, but from our perspective and for what we have applied for here, uh, that’s—that’s not the issue we intended to address.

The sole issue we’re going to talk about here, and are prepared to talk about—and Wes Slaymaker is an engineer and is prepared to show what ever you want to know about that particular structure. We are talking about a temporary use, uh, tower, and that tower, because it is temporary, it comes under a particular section of your ordinance which is referenced in the agenda for the meeting

The, - my clients and I understand that, they approached the town board back in December, and I didn’t realize this until today, but they have already installed, with the town boards consent, anchors for this particular temporary tower in the area where the desire is to erect it.

[Note: Mr. Moore is mistaken here, the town board did not give their consent to install the tower anchors.]

One of the things I noticed about your ordinance and this is typical of ordinances in this county is that temporary use is limited to twelve months, and I recognize that, and I recognize that the application makes reference to a 36 month period, so that if you grant a temporary use, it can only be for the twelve months. And my clients understand that and are prepared to accept that.

I also want to acknowledge that even though we are talking about a tower, ultimately everyone knows this is something to do with wind energy.

But I want to explain what would happen in our minds if you grant this particular request for this temporary tower. And that would be one of three things. Because the purpose of this tower is to determine what winds blow, uh, in the area the tower is located, it’s a meteorological device put up to test the winds.

So if this tower goes up, at the end of 12 months the client is going to do one of three things:

Either they’re going to determine there is an adequate or stable—Wes can talk it in engineers terms but—is there going to be adequate wind for this to be a viable uh, wind project.

Or it’s conceivable my client would ask for additional time, that is, an extension for that temporary permit so that they can continue to do studies,

-or they could conclude this tower—after they’ve done their tests, that they would want to proceed in seeking a conditional use permit, or multiple conditional use permits to put up, uh, multiple wind energy systems.

That’s the truth. There’s no secret about it. That’s what this is all about.

What I want to bring into play, just so that everyone is aware of, that there’s a statute that governs wind energy in the state of Wisconsin. It’s section 66.0401.

And what that statute does—I don’t know any other way to say it—that it restricts a town’s ability – or anyone in this town’s ability- to prevent wind constructions.

It doesn’t mean that they can go up without any say by the town, but it restricts the town’s ability to challenge it, and uh, the statute says no county, city, town or village can place a restriction on a wind energy system unless the restriction satisfies one of the following conditions:

A) It serves to preserve protect the public health and safety
B) It does not significantly increase the cost of the system or decrease its efficiency
C) Allows for an alternative system of comparable cost and efficiency.

So when we come in asking to do something like that, we will be invoking that statute.

Quite frankly the statute in Wisconsin, and this law has been around for quite a long time, the state of Wisconsin encourages these things.

So it is, and frankly it trumps the town’s ordinances in many respects.

However, that is not the issue before you.

Because from this company's perspective, they can approach this in a couple of different ways and I think the way they have chosen to do this is the best way to do it.

To take a preliminary step, lets look at the tower, and, uh, look at putting up one of these temporary towers, and take a look at the wind, and decide what we are going to do next. And that is appropriately before you as a temporary -- as a temporary use.

The other way to approach this, for an energy company, is to come in and say, well, we’ll file a CUP for the whole shooting match, for the testing all the way up to putting up an energy turbine.

But then we get into statute and application and these issues of public safety and public health that go with that, and all the considerations that the state law provides.

That’s a choice that the tower company has in how they approach this.

And you also have some choice of as to how you want us to approach this, and we’re assuming that you want to talk about this tower.

Uh, If it is your desire, ultimately, to say, no, we want to know everything about the wind technology and what these things look like and how they run and that sort of thing, we can come back to you with that. We would want to amend the application, it would be a much more comprehensive thing than what we’ve done here, which is to file a one page request for a temporary tower.

So that is your choice, how you want us to proceed, and I know that this company wants to work with the town or whatever they do, and we think this is the best most unintrusive way to do that.

We want to come in, put up this tower, find out how the wind works here. And then a decision will be made as to what to do next.

So that’s why we’re approaching this the way we are.

Now, for what we’re proposing to do, I know that Wes can describe what this tower looks like, and I don’t know the extent to which you discussed this at the last meeting, but Wes is the person who can tell you what it’s going to look like, how tall it is, how it’s anchored, how it works. So I’m going to defer to him unless you have any questions for me.

If not… Wes?

[Mr. Slaymaker gives some basic information about the met tower and then the discussion turns to wind turbines]

Commissioner#1: What is the optimum wind for the production—is it 14 miles an hour or is it--

Slaymaker: Well I, I’m just giving you a broad overlook. It’s just all economics. Electricity in the area--

Commissioner #1: What wind does it take to turn them?

Slaymaker: Oh. Wind turbines start turning at 10 or 12 miles an hour. So it’s hard to compare the average speed of the wind to how they turn.

[Somebody asks about the size of the turbines]

Slaymaker: Oh the size. That depends on who's selling what, what you can get at a reasonable price, that kind of thing. The sizes these days are all within a small band, just like General Electric is making 2000 a year of this size turbine. You know, that’s all they make. So that’s what you take.

Commissioner#2: What’s the current— one and half megawatts?

Slaymaker: Yeah. Right. The GE machines are one and a half megawatt machines.

Commissioner#2: And then the total size of the windmill itself? 400 feet?

Slaymaker: Little under. Yeah. To the tip of the blade. We didn’t want to get too much into talking about wind turbines.

Commissioner #2: From your view of— obviously your company or you or some expert must think there is potential here or they wouldn’t be wasting their time hiring lawyers-

Slaymaker: Right.

Commissioner #2: And putting up a wind tower. What is it that--

Slaymaker: Two items. Power line— there’s a 138,000 volt line across the southern part of the state. It has the potential to carry, uh, energy, and second item is, you know, elevation. You got these maps here and they indicate it’s above 1000 feet. The elevation of the area surrounding is 150 feet lower. Agricultural ground— those are probably a couple of items--

Commissioner#2: Where is the power line that you looked into?

Slaymaker: Um, from here it’s about four miles south— its--what’s the cross---?

[Developer #2] Dorner road. South of Dorner road. Off of 213.

Commissioner#2: Do you have a number of wind turbines that seems to fit the budget of your company and the potential of this area?

Slaymaker: I couldn’t say exactly what that would be. The power line obviously makes a big determination on that. Um, so it’s hard to guess on the number of turbines, etcetera.

I’ll just— uh, Wisconsin just passed a 10% renewable requirement for all utilities, so Wisconsin is a state, and all the utilities within it are to acquire quite a number of megawatts of wind energy to meet the state mandates. And, you know, the federal mandate may [unintelligible]

[Further discussion about met towers]

Commissioner #3: So if you were to get your tower and you get enough wind— where do you want to put up all these other turbines, within a certain— five miles from this tower or—a hundred miles or what do you want to do?

Slaymaker: Yeah, well, it’s, you know, I guess if you’re familiar with the area you’ll be familiar with the elevated terrain is, and we talked about the power line, so, you know, you’d say, well here’s the power line and here’s the elevated terrain, we’d like to just set some wind turbines within a reasonable distance on the elevated terrain. That’s the big picture idea.

Commissioner #3: Would you like to put them all in Magnolia?

Slaymaker: Hmm?

Commissioner #3: Would you like to put all the turbines in Magnolia or--

Slaymaker: Ah—not necessarily, I mean, again it’s just the elevated feature and the power line. This isn’t the only project we’re looking toward working on in the state. And in each case, you know, it can kind of show, here’s the elevated feature, here’s the power line, site some turbines---connect them here--- it’s a long, lengthy process to site wind turbines and it would be many years before we would be doing anything like that in this location.

Commissioner #2: Where are your other projects?

Slaymaker: The one that’s probably closest to going for permitting is in Calumet County, Wisconsin, [unintelligible] and we started that one back in 2005, and we have two wind measurement towers, we’re hoping to maybe apply for permits maybe later this year. It’s kind of time frame--

Commissioner #3: Now Calumet county, is that on the east side of Lake Winnebago?

Slaymaker: Yes. Apparently there are some very large permitted projects— permitted through the public service commission—just south of there in Fond du Lac county.

Commissioner#2: Is that the Horicon Project?

Slaymaker: One of those is, yes. That one was permitted first but just a couple of weeks ago another project was permitted that WE energies is currently the owner of.

Commissoner# 2: And that’s a project you’re working on?

Slaymaker: No. No. Again, That’s Wisconsin Energies project. I was mentioning it offhand.

Commissioner #3: You said it was permitted. Permitted by who?

Slaymaker: The Public Service Commission. That’s kind of what David [the attorney] was alluding to- um— larger projects are required to be permitted by the public service commission through- with- a standard utilities certificate. A CPCN, a certificate of public.... I’m sorry but I can’t remember exactly what those words mean, but any utility structure were there is power lines or power plants or anything, all go that same route, through the PSC. It’s a lengthy process, and and certainly they involvelocal government, except for I don’t know all the details of it because we haven’t been through that yet, to you know, discuss it with those that have--

Commissioner #3: So then if you put up one turbine or a hundred turbines you still have to get a permit from the public service commission?

Slaymaker: No. If you do one turbine, you can go to the local government. But if you do a larger project, then it’s required. And that’s something that was mentioned previously that there’s laws on the books, you know, if the project is over 50 megawatts, then it’s utility-er-uh- the state recognizes that project is a utility project and it has to do with shared revenue payments and there’s other things, so there’s a number of laws, Wisconsin laws that control how these things proceed--

Chairman: Our conversation is getting away from this wind tower.

Slaymaker: Yeah it is. Alright so anymore questions on the met tower?

Chairman Anymore questions?

[Attorney for the Developer] David Moore: You know, if they answer these questions, but again, we would also entertain coming back for additional meetings for information on these items, but mainly right now we just want to focus on the met tower. We certainly don’t want anybody in the dark on our bigger picture activities.

Chairman: Our zoning ordinance states that all towers shall be mono pole. So, that means no guy wires.

Attorney Moore: I am familiar with that provision, the question, and I didn’t know whether your town attorney was going to be here--

Attorney Reynolds [Indicating he is there]

Attorney Moore: [surprised] Oh-- the question—um— we brought this as an application under your temporary use provision of your ordinance. And, um, I’m aware that you have a separate tower overlay district, and the question is whether a temporary use comes under the same provisions as your tower chapter— I would assume you could consult with Mr. Reynolds on that issue.

From the position of the company here, this is a necessary step, as the first step to evaluating wind energy, um, and, the problem, from our perspective, is there really isn’t any other way to do it. And a monopole is not practical in terms of expense. A monopole would be a permanent, very expensive, solid structure.

So the best alternative, not just for this company but for any wind energy company is to use a temporary tower. If your ordinance prevents that from occuring, then, then we, we would probably have an issue under the state law--- I haven’t raised that, because I— I don’t know whether---and I didn’t get a chance to talk to Mr. [unintelligible] about this, uh, whether you see it as a problem.

My perspective was, if it was done as a temporary [unintelligible] and not a permanent tower then it would be something that you could do as a temporary permit. But if the interpretation is that any tower, including a temporary structure of this nature must be a monopole, then we would have a legal issue that we’d have to hash out, I guess.

Chairman: It says that all towers shall be monopole—that’s by temporary or permanent or--

Attorney Reynolds: But there is an exception— unless engineering documentation is provided by a licensed professional engineer stating that such a design is not structurally possible. In an event a monopole is not feasible, options for alternatives tower zones shall be brought before the P&Z for a design review and recommendation for the town board for approval. But then it comes to this kind of catch all—it says no towers utilizing guy wires shall be permitted.

Attorney Moore: Right. That’s the problem. Simply stated, if that provision prevents the possibility of testing for wind tower and ultimately wind turbines in your township, the position would have to be that that violates the state statute.

That would be our perspective on it. But I don’t know— don’t want to go there at this point—because I’m trying to interpret your ordinance.

Attorney Reynolds: The only response I have is that statute you quote is for wind systems. And this really isn’t a wind system.

Attorney Moore: No, no it isn’t, and that’s why the alternative way to go about this would be for us to file a CUP [conditional use permit] for a wind system, and step one in that CUP would be the tower, and step two would be evaluation process, step three would be determining whether, um, whether um, [unintelligible] turbines we would want to place, and that would be to put the whole shooting match before you, which for me is putting the cart before the horse, and the better way to do it is to find out whether there is a wind—a wind-uh, possibility here where this is going to be feasible, and not deal with the other stuff unless, and until we have to.

If you prefer that, and that’s why I prefaced this, if you want us to come back with an application that covers the whole shooting match, we’ll do that. And then we’ll be here with uh, a lot more information than what I have tonight. So--

[Discussion continues]

Chairman: I was a little uncomfortable, it just sounds like we’re supposed to get out of the way here—

Attorney Moore:If that's how you feel--

Chairman: That’s what I got from the opening statement. I’m uncomfortable with that.

Attorney Moore: Well, you know, aside from all that, and the priorities of wind power, I think, uh, unless you read this in---- I know as a lawyer, you can read language in very creative ways, and say that this—no tower shall have guy wires— only means this kind of tower. But um, one thing that I would suggest, is— and perhaps you haven’t done that or maybe there isn’t an in-between as to— see if there isn’t some in-between that doesn’t— doesn’t, uh, require the ordinance to be re-written, because I think it would be, technically, from a strict words perspective (laughing) it says no towers. There’s no variance, there’s no exception, it says no towers utilizing guy wires shall be permitted, it doesn’t say “no permanent towers” but, um, there is this option of looking for, you know, a licensed professional engineer stating that such a design is not structurally feasible, and looking for this alternative design, something in between a guy tower, which is prohibited by the statute, and something which would work for this purpose, I don’t know, I’m --

[discussion on what the definition of a tower is- ]

Attorney Moore:The legal argument, I’m sure you understand, if that’s the only way to read the ordinance, then we would argue the ordinance violates the state law.

But I don’t think that’s the only way to read the ordinance.

I mean, your ordinance is law, it’s a good ordinance, but I don’t think it was intended to apply to temporary structures.

If it was, then you have a problem with the state statute.

NOTE FROM THE BPWI RESEARCH NERD: Since this discussion, the met tower in Magnolia was permitted, erected, and the developers have applied for their third 12 month extension to keep the met tower in place.

The wind developer has proposed a 67 turbine project for the town of Magnolia. This size of a project allows the developer to bypass local government and local ordinances and send the project to the Public Service Commission for approval.

The Public Service Commission approved the 86 turbine wind farm in Dodge and Fond du Lac county. Since that project went on line in March of 2008  there been have many complaints from residents about noise, shadow flicker, loss of wildlife, and homes that will not sell.

In July of 2008, the town of Magnolia passed a large wind ordinance which, for reasons of health and safety, includes a 2640 foot setback from homes unless a homeowner signs a waiver to have them closer. (download the Magnolia ordinance by clicking here)

At some point in 2007or 2008, the wind developer, EcoEnergy, was bought by Acciona of Spain which will own the project the developers call "EcoMagnolia"

At this time it is not known if the developer has approached the PSC to begin the permitting process.

Posted on Thursday, January 29, 2009 at 04:46PM by Registered CommenterThe BPRC Research Nerd | Comments Off

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