Town of Herman, WI
Dodge County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Herman 1-16-2014 by Ord. No. 14-02. Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 384.

§ 375-1 Authority; findings of fact.

A. 
These regulations are adopted under the authority granted pursuant to § 66.0401, Wis. Stats.[1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).
B. 
The Town Board has established that wind energy systems are a permitted land use in the A-1 and A-2 Agricultural Districts of Chapter 384, Zoning, of this Code and are uses consistent with agricultural use.[2]
[2]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).
C. 
The Town Board finds that wind energy systems operating in the Town require special licensing by the Town in order to protect and preserve the health, safety, and welfare of the citizens of the Town and people in general.
D. 
Licensing is a legitimate and reasonable means of accountability to ensure that the construction of and operation by employees of wind energy systems comply with reasonable regulations and to ensure that operators and employees do not allow their establishments to be hazardous to the public health or safety.
E. 
It is not the intent of this chapter to significantly increase the cost of the system or significantly decrease the efficiency of any wind energy system proposed to be located in the Town.

§ 375-2 Purpose and intent.

Based upon the findings stated above, it is the intended purpose of the Town to regulate wind energy systems to promote the health, safety, and general welfare of the citizens of the Town and to establish reasonable and uniform regulations for the operation thereof so as to minimize potentially dangerous effects of these systems on the community.

§ 375-3 Definitions.

The following terms have the meanings indicated:
APPLICANT
The individual or business entity that seeks to secure a license under this chapter of the Town Municipal Code.
BOARD
The Town Board for the Town of Herman, Dodge County, Wisconsin.
EMPLOYEE
Any and all persons, including but not limited to operators, who work in or at or render any services directly related to operation of wind energy systems.
GOOD UTILITY PRACTICE
Any of the practices, methods and acts with respect to the safe operation of the wind energy system facility engaged in or approved by a significant portion of the electric utility industry and, in particular, those portions of the industry with experience in the construction, operation and maintenance of wind turbines during the relevant time period, or any of the practices, methods and acts which, in the exercise of reasonable judgment in light of the facts known at the time the decision was made, could have been expected to accomplish the desired result at a reasonable cost consistent with good business practices, reliability, safety and expedition. "Good utility practice" is not intended to be limited to the optimum practice, method, or act to the exclusion of all others but rather to be acceptable practices, methods or acts generally accepted in the region.
NONPARTICIPATING RESIDENT
All residences which are not subject to an agreement, authorization or lease with the wind energy system facility developer.
OPERATOR
The person who is designated on the license application to be the person in charge of the daily operation of the premises and who is to be the wind energy system's contact person for the municipality.
PERSON
An individual, proprietorship, corporation, association, partnership, limited liability entity, or other legal entity.
STRAY VOLTAGE
Neutral-to-earth voltage measured from the electrical system neutral and/or any structure bonded to this neutral to earth that adversely affects humans or animals.
WIND ENERGY SYSTEM
Equipment that converts and then stores or transfers energy from the wind into usable forms of energy and includes all of the land, buildings, structures and equipment used by the wind energy system and its support facilities, including the wind turbine, tower, access roads, control and office facilities, meteorological towers, maintenance and all power collection and transmission systems.
WIND ENERGY SYSTEM TOWER
Any structure that is designed and constructed primarily for the purpose of supporting the wind turbine.
WIND ENERGY SYSTEM TOWER SITE
The land area encompassing a tower and all related equipment, structures, paved or graveled areas, safe clearance areas, fencing and other items used in connection with said tower.
WIND TURBINE
A mechanical device which captures the kinetic energy of the wind and converts it into electricity. The primary components of a wind turbine are the blade assembly, electrical generator and tower.

§ 375-4 License required; transfer of license.

A. 
License required. From and after the effective date of this chapter, no wind energy systems shall be operated or maintained in the Town without first obtaining a license to operate issued by the Town.
B. 
Effect of other licenses. The fact that a person possesses any other valid license or permit required by law does not exempt that person from the requirement of obtaining a wind energy system license under this chapter.
C. 
Transferability of licenses. Licenses may be transferred pursuant to § PSC 128.32(4), Wis. Adm. Code.

§ 375-5 License application procedure.

A. 
Any person desiring to secure a wind energy system license shall file an application together with two additional copies of the application with the Town Clerk.
B. 
The application shall be in the form prescribed at § PSC 128.30(2), Wis. Adm. Code.
C. 
Each application shall be accompanied by payment of a nonrefundable application fee to be determined from time to time by separate resolution of the Town Board.
D. 
The Town Clerk shall date the filing of the application on the face of the application.
E. 
Upon receipt of the application, the Town Clerk shall distribute a copy of the application to the Town Board, Building Inspector and Town Fire Departments.
F. 
The Town Board may refer the application to the Town Engineer or a qualified consulting engineer for further review. The reasonably necessary costs associated with the engineering review shall be the responsibility of the applicant, in accord with the terms of this chapter.
G. 
The Town Board may but shall not be obligated to refer the application to the Plan Commission for review and recommendation.
H. 
Hearing.
(1) 
The Town Board shall hold a public hearing for the purpose of receiving public comment and providing information regarding the wind energy system application.
(2) 
The Town Board will receive written comments through the 15th business day following the public hearing. The written comments will be considered by the Board in making its determination on the application.
(3) 
The Town Board shall place a copy of the application for public review at two locations as established from time to time by resolution.
I. 
Following review, the Town Board shall either grant the license or deny the application after reviewing the application for compliance with the licensing standards found in this chapter and under state law. A decision granting the license shall be made in writing, including findings of fact supported by evidence in the record. A copy of the decision, whether granted or denied, shall be filed with the Public Service Commission. If granted, a duplicate original must be given to the owner/applicant. The application shall be processed within the time frames established by § 66.0401(4), Wis. Stats.
J. 
If the license is granted by the Town Board, then the Town Clerk shall issue the license on the next business day.
K. 
If the Town Board decides to deny the application for a license, the Board shall immediately notify the applicant in writing of the reasons for denial. Such notice shall be sent to the applicant within five days of the decision by certified mail, return receipt requested.
L. 
Appeal of the Board's determination shall proceed as directed in § 66.0401(5), Wis. Stats.
M. 
Each license issued for a wind energy system shall state on its face the name of the licensee, the name of the establishment, the street address of the establishment, the date of issue of the license and its expiration date.

§ 375-6 Technical requirements for licensing.

This chapter is intended to require implementation of restrictions through licensing regarding the design, construction and operation of wind energy systems. It is recognized that the restrictions herein are neither exclusive nor exhaustive. In instances where a health or safety concern is identified with regard to any application for a wind energy system, additional and/or more restrictive conditions may be included in the license to address such concerns.
A. 
Aircraft protection. The wind turbine generator tower shall be marked as required by the Federal Aviation Administration (FAA). There shall be no lights on the outside of the tower other than what is required by the FAA or other applicable authority or as otherwise agreed in connection with the issuance of the license. Notwithstanding the foregoing, this restriction shall not apply to infrared heating devices used to protect the monitoring equipment. The tower shall be connected to an uninterruptible backup power source to ensure continuous compliance with FAA regulations. To the extent consistent with FAA regulations, shrouding for the lights shall direct reflection of light up.
B. 
Blasting. The licensee shall not undertake any blasting in connection with the construction of the facility unless the applicant shall have notified the Town and submitted a blasting plan consistent with applicable laws and regulations.
C. 
Color. Except as may be required by the FAA, the coloration of the exterior components and each wind turbine tower shall be of a conventional or unobtrusive finish, including the blades. The licensee throughout the term of this license shall maintain the required coloration and finish.
D. 
Electromagnetic interference. The licensee shall not operate the facility so as to cause microwave, television, radio, or navigation interference contrary to Federal Communications Commission regulations or other law.
E. 
Emergency shutdown. The licensee shall be required to immediately cease operations for the duration of any emergency. "Emergency" shall mean a proven condition or situation caused by the facility that presents an imminent physical threat of danger to life or significant threat to property.
F. 
Groundwater protection. The licensee shall operate the facility so as not to cause groundwater contamination in violation of applicable law.
G. 
Noise. The noise design limit for each wind turbine shall be as set forth at § PSC 128.14, Wis. Adm. Code.
H. 
Public roads. The licensee shall, prior to the initiation of construction and use of haul roads, consult with the Town Road Superintendent, the Wisconsin state police and the Dodge County Sheriff's Office for load paths and restrictions on their respective roads or bridges. At the licensee's expense, the licensee shall provide the Town Road Superintendent with a videotape documenting the condition of all haul roads in the Town prior to beginning and after completing construction of the facility. At the licensee's expense, the licensee shall contract with qualified contractors to repair any damage to the haul roads due to transportation of equipment and facility components ("road repair obligations"). In the event that a hazardous road condition exists that is not promptly corrected by the licensee, the Town Road Superintendent may order emergency road repairs to be performed by qualified contractors, and the licensee shall promptly reimburse the Town for reasonable emergency road repair costs. The licensee shall assure funding of the road repair obligations by a letter of credit or guaranty from a contractor of the applicant. Weather permitting, the final road repair obligations shall be completed to the reasonable satisfaction of the Town Road Superintendent within six months after completion of construction of the facility, or as soon thereafter as weather conditions permit.
I. 
Screening. The facility shall be designed to minimize shadow flicker as set forth in § PSC 128.15, Wis. Adm. Code.
J. 
Setback. Wind turbines shall be set back pursuant to the regulations set forth in § PSC 128.13, Wis. Adm. Code.
K. 
Signage and fencing.
(1) 
The licensee shall provide reasonable signage at the facility, identifying the premises as being part of the facility and providing appropriate safety notices and warnings against trespassing. The "No Trespassing" signs shall be posted around the entire premises at an appropriate distance for posting but no fewer than two conspicuous places for every 40 acres within the facility.[1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).
(2) 
No advertising material or signage other than warning, equipment information or indicia of ownership shall be allowed on the wind turbines. This prohibition shall include the attachment of any flag, decorative sign, streamers, pennants, ribbons, spinners or waiving, fluttering or revolving devices, but not including weather devices.
L. 
Stray voltage. The licensee shall utilize good utility practice to minimize, to the extent practicable, the impact, if any, of stray voltage caused by the facility.
M. 
Reporting and complaint resolution procedure. The licensee shall report to the Town as follows:
(1) 
Extraordinary events. Within 24 hours of any extraordinary event, the licensee shall notify the Town. "Extraordinary event" shall include tower collapse, catastrophic turbine failure, unauthorized entry to the tower base, thrown blade or hub, any injury to a facility worker or other person that requires emergency medical treatment, or other event that in the licensee's opinion reasonably impacts the public health and safety of the Town.
(2) 
Complaints.
(a) 
Parties shall follow the procedures established in § PSC 128.40, Wis. Adm. Code.
(b) 
Upon petition from an aggrieved person, the Town may undertake an investigation of the alleged problem and attempted resolution by the wind energy system owner. If reasonably necessary, the Town may hire a qualified individual to assist in the investigation, the cost of which shall be reimbursed by the wind energy system owner. Upon review of the complaint or an investigative report, the Town may order operational changes, additional mitigation measures or other reasonable resolution of the complaint.

§ 375-7 Insurance and indemnification.

A. 
Insurance.
(1) 
All licensees shall maintain the following insurance coverages commencing upon construction of the facility:
(a) 
The licensee shall, at its expense, maintain a broad form comprehensive coverage policy of public liability insurance insuring the applicant and participating landowners against loss or liability caused by the applicant's occupation and use of the property under the lease, in an amount not less than $5,000,000 of combined single limit liability coverage per occurrence, accident or incident, which has a commercially reasonable deductible. The Town shall be named as an additional insured on the policy.
(b) 
Workers' compensation coverage in an amount required by Wisconsin law. The applicant shall require subcontractors and others not protected under its insurance to obtain and maintain workers' compensation and employers' liability insurance.
(2) 
Certificates of insurance evidencing compliance with these requirements shall be provided upon request of the Town. The insurer will provide notice to the Town in the event there is a lapse in coverage exceeding 30 days. All policies other than workers' compensation shall be written on an occurrence and not on a claim made basis.
B. 
Defense of land use decision and indemnity.
(1) 
Defense of land use decision. In addition to the indemnification described below, the licensee shall reimburse the Town its reasonable attorney fees incurred in defending any legal actions brought by third parties challenging the legality or enforceability of this chapter or any portion thereof, or the issuance of a license by the Town pursuant to this chapter. If the Town seeks reimbursement, it shall notify the licensee in writing promptly upon discovering any claim entitling it to a land use defense reimbursement, but in no event later than 120 days after receiving written notice of any action, lawsuit, proceeding, investigation or other claim against it which may give rise to a claim for a land use defense reimbursement. The licensee shall not be obligated to reimburse the Town with respect to any such liability, action or claim if the Town fails to notify the licensee thereof in accordance with the provisions of this section in sufficient time, including, without limitation, any responsive motion or answer to a complaint, petition, notice, or other legal, equitable action or claim, but only insofar as such knowing failure to notify the licensee has actually resulted in prejudice or damage to the licensee. With respect to any third party action, lawsuit, proceeding, investigation or other claim which is subject to reimbursement under this section, the licensee shall be entitled to assume and control (with counsel of its choice) the defense of such action, lawsuit, proceeding, investigation or other claim at the licensee's expense; provided, however, that the Town shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose (the fees and expenses of such separate counsel to be borne by the Town) and to assert against any third party any and all cross claims and counterclaims the Town may have, subject to the licensee's consent, which consent shall not be unreasonably withheld. If the licensee elects to assume the defense of any such claim, it may settle such claim in its sole discretion so long as either such settlement provides an unconditional release of the Town or the licensee shall obtain the prior written consent of the Town (which consent shall not be unreasonably withheld). If the licensee elects to assume the defense of any claim, the Town shall fully cooperate with the licensee and its counsel in such defense.
(2) 
Indemnification. The licensee shall defend, indemnify and hold harmless the Town and its officials, employees and agents from and against any and all claims, demands, losses, suits, causes of action, damages, injuries, costs, expenses and liabilities whatsoever, including reasonable attorney fees (such liabilities together known as "liability") arising out of the licensee's selection, construction, operation and removal of the wind turbines and affiliated equipment, including, without limitation, liability for property or personal injury (including death), whether said liability is premised on contract or on tort (including without limitation strict liability or negligence). This general indemnification shall not be construed as limiting or qualifying the Town's other indemnification rights available under law.

§ 375-8 Standards.

A. 
Construction standards. Wind turbines shall be constructed in compliance with good utility practice for wind turbines. In the event that, after inspection by a qualified expert in good utility practice, the Town concludes that any of the wind turbines were not constructed in compliance with good utility practice or constitute a danger to persons or property, then upon notice being provided, the licensee shall have 90 days to bring the noncompliant wind turbine(s) into compliance with such standards or, if 90 days is insufficient time to cure the noncompliance, the licensee shall present a plan to the Town describing the reason for the delay and the time frame for the cure to be put in place. Failure to bring such noncompliant wind turbine(s) into compliance or failure to provide a plan for compliance within 90 days shall constitute grounds for the Town to request removal of said wind turbine(s) at the licensee's expense.
B. 
Performance standards. Any wind energy system or wind energy system facility shall be operated and maintained consistent with good utility practice for comparable facilities.
C. 
State and federal standards. Construction of wind turbines shall meet or exceed current standards and regulations, if any, of any other agency of the state or federal government with the authority to regulate wind-powered generators. If such standards and regulations are changed and retroactive application is required for the change, then the licensee shall bring the wind turbine(s) into compliance with such applicable revised standards and regulations within six months of the effective date of such standards and regulations, unless a different compliance schedule is permitted by the controlling state or federal agency or approved by the Town. A determination of no hazard for each wind turbine must be obtained from the FAA as a condition precedent for the installation of each turbine.
D. 
Wind turbine safety standards. The licensee shall comply with the following safety standards:
(1) 
All wiring between the wind turbines and the substation shall be underground;
(2) 
The outside of wind turbines shall not be climbable;
(3) 
All access doors to the towers and electrical equipment shall be locked; and
(4) 
Appropriate warning signage shall be placed on each tower, all electrical equipment, and all entrances.

§ 375-9 Repair and replacement.

The licensee shall be authorized to repair and replace the wind turbine generator and associated equipment consistent with good utility practice during the term of this license as needed to keep the facility in good repair and operating condition. However, no such repair or replacement shall entitle the licensee to any extension of the term of this license, even if it extends the useful life of the facility. If the licensee desires to extend the term of this license in the future, the licensee shall be required to apply for such extension or amendment of this license in accordance with the terms of this chapter.

§ 375-10 Removal.

A. 
Cessation of operation. Upon expiration of this license or should removal of all or part of the wind energy system facility otherwise be required under this chapter, the licensee shall effectuate the removal of the whole or part of the wind energy system affected. Further, if the licensee ceases commercial operation of the facility for a continuous period of one year, the licensee shall take all measures necessary to accomplish such removal. Unless otherwise agreed to with landowners in a recordable form, said removal shall be to a depth of 48 inches beneath the soil surface, and the licensee shall restore the premises to substantially the same physical condition which existed immediately before the construction of the facility (the "removal obligations"). Any agreement for removal of a foundation to a lesser depth or for no removal of the foundation shall be recorded with the Dodge County Register of Deeds and shall show the locations of all such foundations.
B. 
Financial assurance.
(1) 
The owner shall provide financial assurance of the ability to pay the actual and necessary cost to decommission the wind energy system before blasting or foundation construction as provided in § PSC 128.19(3), Wis. Adm. Code.
(2) 
Notwithstanding the surety, in the event that the licensee has failed, refused or neglected to comply with the removal requirements herein within 12 months of the Town's written notice, the Town or its agents shall be licensed to enter onto the premises for purposes of razing and removing the subject structures. All costs associated with the Town's efforts in this regard shall be placed upon the real estate tax bill of the site as a special charge. The removal obligations shall be completed within 12 months after decommissioning of the facility, cessation of the commercial operation regarding the facility, or the expiration of this license, whichever first occurs.

§ 375-11 Alteration of licensed premises; revocation of license.

A. 
Amendment. Following the granting of a license, any licensee who wishes to materially alter any aspect of the licensed premises which was required to be described in the building plan or site plan required under this chapter shall apply to the Town Board for an amendment to the license. The application shall explain the nature of the alteration and the reasons therefor and include a nonrefundable application fee. The applicant shall pay the reasonably necessary engineering expenses, if any, associated with the review. The Town Board shall act on the amendment application consistent with the terms of this chapter.
B. 
Revocation of license. Each of the following occurrences shall constitute a violation of the terms and conditions of this license (a "violation"), and any such violation shall be grounds for revocation of this license (whatever the reason for such an event of default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, order or regulation) after the expiration of the notice and cure period and revocation hearing as set forth below:
(1) 
If the licensee abandons the wind turbine generators located on the premises for a period of one year or more;
(2) 
If the licensee fails to observe or perform any material condition or provision of this license for a period of 30 days after it has received written notice of such failure from the Town; provided, however, that a violation shall not occur if the licensee commences performance of such obligation within such thirty-day period and is diligently proceeding to complete such performance; or
(3) 
If there is a material failure by the licensee to comply with any statute, regulation, rule, or license administered by any federal, state or county department, agency, or commission directly related to the operation of the wind turbine generator, and if the licensee fails to cure the material failure to comply for a period of 30 days after the date the licensee receives written notice of such failure from the Town or the federal, state or local governmental body or agency with jurisdiction; provided, however, that a violation shall not occur if the licensee commences performance of such obligation within such thirty-day period and is diligently proceeding to complete such performance.
C. 
Hearing. The Town shall not revoke any license without first providing the licensee a hearing and the right to respond, including the right to present evidence regarding any defenses or extenuating circumstances (such as the applicant's prompt commencement of remedial measures that cannot reasonably be concluded within 30 days) regarding the alleged violations.
D. 
Judicial review. The licensee shall have the right to appeal any revocation to Circuit Court within 30 days of the date of the revocation.

§ 375-12 Term of license.

Unless the Town Board authorizes a different term based upon analysis of the useful life of the wind energy system facility, every license issued pursuant to this chapter will terminate upon the expiration of 30 years from the date of issuance.

§ 375-13 Location of wind energy system.

If all the requirements for a license as stated in this regulation are met, a wind energy system shall only be allowed to locate in the zoning district(s) provided for by the Town and shall not be allowed to locate in any other district.

§ 375-14 Revenue payments; professional fees.

A. 
Guarantee of state revenue payments. The Town may require assurance of continued revenue from the licensee in the event and to the extent the state shared revenue payments are reduced or eliminated.
B. 
Professional fees. The licensee shall agree to reimburse the Town's reasonable attorney and qualified engineering fees relating to the evaluation, preparation and issuance by the Town of the license.