Better Plan, Wisconsin

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What does the appeals court ruling on the Calumet County wind ordinance really mean?

To some it means all local ordinances have been "wiped out".

To others it means that ordinances enacted to protect health and safety still stand.

The answer may be somewhere in the middle.

[Download the entire decision by clicking here]

One view of the ruling goes like this:

Local Wind Ordinances Stand:

Appeals Court ruling expressly allows local control for reasons of health and safety.

Local Wind Ordinances were not struck down by last months appeals court ruling on the Calumet County wind ordinance.

Although initial media reports stated all local wind ordinances in the state were nullified by this ruling, a closer reading of the decision now has brought this into question.

From the language in the decision on this case:

Pages 6-7

"¶10 Now we can get to the substantive issue, which concerns the scope of the State’s delegation of authority to its political subdivisions to restrict wind energy systems.

WISCONSIN STAT. § 66.0401(1) is the primary statute governing this issue. This statute is a state legislative restriction that expressly forbids political subdivisions from regulating solar and wind energy systems. State ex rel.

Numrich v. City of Mequon Bd. of Zoning Appeals, 2001 WI App 88, ¶17, 242 Wis. 2d 677, 626 N.W.2d 366.3

The scope of this preemption, however, expressly allows some local control insofar as they satisfy one of three conditions.

(1) AUTHORITY TO RESTRICT SYSTEMS LIMITED. No county, city, town, or village may place any restriction, either directly or in effect, on the installation or use of a … wind energy system, as defined in s. 66.0403 (1) (m), unless the restriction satisfies one of the following conditions:

(a) Serves to preserve or protect the public health or safety.

(b) Does not significantly increase the cost of the system or significantly decrease its efficiency.

(c) Allows for an alternative system of comparable cost and efficiency.

Thus, a political subdivision’s consideration of a wind energy system must be in light of the conditions placed on local regulation by this section. Numrich, 242 Wis. 2d 677, ¶17."

The ruling introduces nothing new, but rather follows the state statute as written. Only ordinances by this which contain arbitrary restrictions are affected by this ruling.

Local wind ordinances which follow the letter of the law and regulate only for reasons of health and safety still stand.

“The council for Calumet County may have failed to make the link between their setback and health and safety, but that failure does not mean all local wind ordinances are negated by this ruling,” said Jim Bembinster at the Town of Union’s Plan and Zoning Commission Meeting on Thursday. Mr. Bembinster was a member of the Town of Union wind ordinance study committee.

The Town of Union spent 14 months creating a wind ordinance, which adheres strictly to the restrictions of the state statute and regulates only for reasons of health and safety. All restrictions in the Town of Union ordinance are supported by the most recent medical and scientific data. Similar ordinances have been adopted in at least 10 Wisconsin Towns.

An early press release stating ordinances are overturned by this decision appears to be the source of the misunderstanding.

Spring Valley resident Kevin Kawula believes the confusion was a result of a lobbying group’s continued efforts to overturn local ordinances, “They took an out of bounds ball and ran it into the end zone, and yelled, “touchdown!”, he said, “They just hoped nobody would notice. Well, they were wrong.”

ANOTHER VIEW OF THE RULING:

Court Ruling Wipes Out Local Wind Ordinances

[Click Here to read at source]

By GINA DUWE

Janesville Gazette

Sunday, Aug. 2, 2009

A recent Wisconsin appeals court ruling wipes away ordinances written in Union and Magnolia townships to regulate wind energy systems, experts say.

But the court ruling would be trumped if the state Legislature approves a bill to develop statewide siting standards.

“Even though we apparently wasted $40,000 coming up with an ordinance, I don’t think the money was completely wasted because I think we have solid, scientific facts that will give our community and the Union Town Board the basis for evaluating these proposals on a case-by-case basis,” said Tom Alisankus, who chaired Union’s wind study committee.

Although the ruling by the District 2 Court of Appeals in Ecker Brothers versus Calumet County applies statewide, the opinion is based on current law. If the proposed wind siting statute is approved, it would override the court ruling, experts say.

Meanwhile, Calumet County and the Wisconsin Counties Association plan to continue the fight in court with an appeal to the Wisconsin Supreme Court, said John Reinemann, legislative director of the counties association.

The judges said Calumet County could not use an ordinance to apply setback, height and other restrictions to all wind energy systems, he said.

The opinion reads: “We hold that this ‘one size fits all’ scheme violates the legislative idea that localities must look at each wind system on its own merits and decide, in each specific case, whether the wind system conflicts with public health or safety.”

Alisankus, a lawyer and municipal judge, said the ruling is misguided because it invalidates ordinances, which is typically how things are regulated.

“Oftentimes, the whole reason you put out an ordinance is so everyone knows ahead of time what the standards are,” he said. “More importantly, everyone is treated the same way.”

Vote on Tuesday

A bill working its way through the Legislature would have the state Public Service Commission develop statewide permitting standards. Now, wind projects of 100 megawatts and more go through the PSC for permitting, and smaller projects are permitted through local municipalities.

That’s created a patchwork of ordinances that make permitting difficult or impossible, the wind industry says.

Officials at the counties association think statewide standards probably are on the way, so they’ve been in contact with those “framing the law in an effort to preserve as much local control as possible,” Reinemann said.

The Senate Commerce, Utilities, Energy and Rail committee is scheduled to vote on the wind siting bill Tuesday, said Kevin Brady, a spokesman for Sen. Jeff Plale, D-South Milwaukee, a co-sponsor of the bill.

The Assembly version of the bill already has passed the Assembly Utilities Committee and is ready for a vote on the Assembly floor, he said.

NOTE FROM THE BPWI RESEARCH NERD:

 Is the answer somewhere in the middle?

Journalist Gina Duwe was kind enough to provide some clarification for us when we contacted her about this story.

She told us that from what she'd gathered, the ruling means instead of one municipal ordinance regulating everything, a municipality has to evaluate projects individually but they can still use all the research and findings that went into developing their ordinances when evaluating specific cases.

We thank Ms. Duwe for this clarification!