[HISTORY: Adopted by the Village Board of the Village of
Fox Point as Ch. 43 of the 1961 Code. Amendments noted where applicable.]
It is the intended purpose of the Village to regulate wind energy
systems to promote the health, safety, and general welfare of the
citizens of the Village and to establish reasonable and uniform regulations
for the operation thereof so as to minimize potentially dangerous
effects of these systems on the community, pursuant to the authority
granted by §§ 66.0401 and 66.0403, Wis. Stats., and
other applicable laws.
The following terms have the meanings indicated:
The individual or business entity that seeks to secure a
license under this chapter of the Village Code.
The Village Board for the Village of Fox Point, Milwaukee
County, Wisconsin.
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.
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.
All residences which are not subject to an agreement, authorization
or lease with the wind energy system facility developer.
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 systems contact person for the municipality.
An individual, proprietorship, corporation, association,
partnership, limited liability entity, or other legal entity.
A wind energy system that has a nameplate capacity of 100
kilowatts or less and a total height of 170 feet or less.
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.
Any structure that is designed and constructed primarily
for the purpose of supporting the wind turbine.
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.
Equipment that converts and then stores or transfers energy
from the wind into usable forms of energy.
All of the land and equipment used by the wind energy system
and its support facilities, including the wind turbine, tower, access
roads, control facilities, meteorological towers, maintenance and
all power collection and transmission systems.
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.
A.
Licenses required. From and after the effective date of this chapter,
no wind energy system shall be operated or maintained in the Village
without first obtaining a license to operate issued by the Village.
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 systems license under
this chapter.
C.
Nontransferability of licenses. The license is not assignable or
transferable to any other person without the express prior written
consent of the Village, such consent not to be unreasonably withheld;
provided, however, that the licensee may assign the license once to
a new entity, upon notice to the Village, if the licensee submits
an affidavit demonstrating the following:
(1)
The new entity is wholly owned by the licensee;
(2)
The new entity is properly formed and authorized to do business in
Wisconsin; and
(3)
The written assignment requires the new entity to assume all of the
licensee's rights, duties and obligations under the license,
including but not limited to the letter of credit requirements and
the certificate of insurance requirements.
A.
Any person desiring to secure a wind energy systems license shall
file an application together with two additional copies of the application
with the Village Clerk/Treasurer.
B.
The application shall be on a form provided by the Village Clerk/Treasurer.
C.
The following information shall be required of each applicant and
must be provided under oath or affirmation:
(1)
Name, address, and phone number.
(2)
If the applicant is a corporation, partnership, limited liability
company or limited liability partnership, the application shall include
the name of the business entity; the date of incorporation, registration
or organization; the state in which the entity was incorporated, registered
or organized; the name and address and phone numbers of the registered
agent, where applicable; the names and addresses of all officers and
directors; operating or managing partners or general partners; managing
members or managers, whichever is applicable for the particular form
of business entity.
(3)
Name and address of any other current or past wind energy systems
operated by the applicant whether in this state or any other state
or district within the United States.
(4)
Name, address and phone number of an individual who is responsible
for the day-to-day operation of the facility, who will be deemed the
operator for purposes of this chapter, and who will be the contact
person for the municipality.
(5)
A statement that the applicant is familiar and in compliance with
the provisions of this chapter of the Village's municipal code,
including the responsibility to reimburse all reasonable costs and
professional fees associated with the processing, examination and
analysis of the proposed facility.
D.
Each application
shall be accompanied by a site plan which meets all the requirements
of this chapter, as well as any additional site-specific requirements
of the Village Board and/or the Director of Public Works/Village Engineer
in accordance with the technical requirements in this chapter. Each
application shall be accompanied by a site plan of the wind energy
system tower site(s), including total acreage occupied by the facility.
E.
Each application
shall be signed by the applicant.
F.
Each application
shall be accompanied by payment of nonrefundable application fee to
be determined from time to time by separate resolution of the Village
Board. Filing of the application does not occur until this fee has
been paid.
G.
The Village
Clerk/Treasurer shall date the filing of the application on the face
of the application.
H.
Upon receipt
of the application, the Village Clerk/Treasurer shall distribute a
copy of the application to the Village Board and Building Inspector.
I.
The Village
Board may refer the application to the Director of Public Works/Village
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.
J.
The Village
Board may but shall not be obligated to refer the application to the
Plan Commission for review and recommendation.
K.
The Village
Board may but shall not be obligated to refer the application to a
public hearing for purposes of receiving public comment.
L.
Following
review, the Village Board shall grant the license, grant the license
subject to specified conditions, or deny the application after reviewing
the application for compliance with the licensing standards found
in this chapter and under state law.
M.
If the
license is granted by the Village Board, then the Village Clerk/Treasurer
shall issue the license as soon as practicable. If the license is
granted subject to specified conditions, the conditions shall be described
in writing and provided to the applicant.
N.
If the
Village Board decides to deny the application for a license, the Board
shall notify the applicant in writing of the reasons for denial.
O.
Any applicant aggrieved by such a decision of the Village Board shall be entitled to immediately appeal the Board's decision in circuit court. Such an appeal must be made within 30 days of the date of the written decision by the Board. The administrative review described in Chapter 7 of this Code shall not apply to any appeal of the Village Board's decision to grant, conditionally grant, or deny an application under this chapter. The Village explicitly elects not to be governed by Chapter 68, Wisconsin Statutes, and instead review shall be as described in this section.
P.
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.
Design, construction and operation of wind energy systems shall
be subject to the requirements of this chapter. 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 that applicant shall
have notified the Village 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 off white,
light gray or other neutral color, including the blades. The finish
shall be flat or matte. 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 not exceed
50 dBA as measured as the average dBA at the neighboring property
lines, or outside of boundary lines of any noise attenuation easement
obtained and recorded by licensee, whichever distance is greatest.
H.
Public roads. At licensee's expense, licensee shall provide
the Director of Public Works/Village Engineer a videotape documenting
the condition of all haul roads in the Village prior to beginning
and after completing construction of the facility. At 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
a hazardous road condition exists that is not promptly corrected by
licensee, the Director of Public Works/Village Engineer may order
emergency road repairs be performed by qualified contractors, and
licensee shall promptly reimburse the Village for reasonable emergency
road repair costs. Licensee shall assure funding of the road repair
obligations by a letter of credit or guaranty from a contractor of
applicant. Weather permitting, the final road repair obligations shall
be completed to the reasonable satisfaction of the Director of Public
Works/Village Engineer within six months after completion of construction
of the facility, or as soon thereafter as weather conditions permit.
The Director of Public Works/Village Engineer may waive the requirements
of this section for a small wind energy system, upon the applicant
demonstrating to the satisfaction of the Director of Public Works/Village
Engineer that there will be no adverse impact upon Village roads in
the transport or construction of the small wind energy system.
I.
Screening. Licensee shall design the facility so as to minimize visual
impacts such as glare, reflection or shadow flicker. Complaint of
such visual impacts occurring inside any residence exceeding five
hours per year shall be dealt with in accordance with the reporting
and complaint resolution procedures herein.
J.
Setback.
(1)
Wind turbines shall be set back a distance of 1.1 times their height
from the nearest property line, unless appropriate waivers or easements
in a recordable form are secured from adjacent property owners or
other acceptable mitigation is approved by the Village Board.
(2)
Wind turbines shall be set back a distance of no less than three
times their total height from the nearest residence, school, hospital
or church unless waived in a recordable form by the affected property
owner or owners. In no event shall the setback distance be less than
1.1 times the total height of the wind turbine.
(3)
Wind turbines shall be set back a distance of no less than their
total height from the nearest aboveground public electric power line
or telephone line, unless waived in a recordable form by the affected
property owner and utility company.
K.
Signage and fencing.
(1)
Except for small wind energy systems, 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
less than two conspicuous places for every 40 acres within the facility.
(2)
No advertising material or signage other than warning, equipment
information or indicia of ownership shall be allowed on the wind energy
system tower or turbine. 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. 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. Licensee shall report
to the Village as follows:
(1)
Extraordinary events. Within 24 hours of any extraordinary event,
licensee shall notify the Village. "Extraordinary events" 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 licensee's opinion reasonably impacts the public
health and safety of the Village.
(2)
Complaints. The licensee of the wind energy system facility shall, at the licensee's expense and in coordination with the Village, develop a system for logging and investigating all complaints related to the operational standards set forth in Subsections B, D, E, F, G, I, L of this section and § 567-7B. If the Village determines that it is reasonably necessary, it may undertake an investigation of the alleged operational violation by a qualified individual mutually acceptable to the Village and the owner of the wind energy system facility. The reasonable cost and fees incurred by the Village in retaining said qualified individual shall be reimbursed by the owner of the wind energy system facility. After the investigation, if the Village Board reasonably concludes that operational violations are shown to be caused by the wind energy system facility, the licensee shall use reasonable efforts to mitigate such problems on a case-by-case basis, including measures such as planting trees and installing awnings.
A.
Insurance. All licensees shall maintain the following insurance coverages
commencing upon construction of the facility, unless reduced or waived
in writing by the Village Board.
(1)
The licensee shall, at its expense, maintain a broad form comprehensive
coverage policy of public liability insurance insuring applicant and
participating landowners against loss or liability caused by applicant's
occupation and use of the property, 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 Village
shall be named as an additional insured on the policy.
(2)
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.
(3)
Certificates of insurance evidencing compliance with these requirements
shall be provided upon request of the Village. The insurer will provide
notice to the Village 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, licensee shall reimburse the Village its reasonable
attorney's 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
Village pursuant to this chapter. If the Village seeks reimbursement,
it shall notify 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 Village with respect
to any such liability, action or claim if the Village fails to notify
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
licensee has actually resulted in prejudice or damage to licensee.
With respect to any third-party action, lawsuit, proceeding, investigation
or other claim which is subject to reimbursement under this section,
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 licensee's expense; provided, however, that
the Village 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 Village)
and to assert against any third party any and all cross claims and
counterclaims the Village may have, subject to licensee's consent,
which consent shall not be unreasonably withheld. If 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 Village, or licensee shall obtain
the prior written consent of the Village (which consent shall not
be unreasonably withheld). If licensee elects to assume the defense
of any claim, the Village shall fully cooperate with licensee and
its counsel in such defense.
(2)
Indemnification. The licensee shall defend, indemnify and hold harmless
the Village 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's fees (such liabilities together known as "liability")
arising out of 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 Village's other indemnification rights available under law.
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 Village
concludes that a wind turbine is not constructed in compliance with
good utility practice or constitutes 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 Village 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 Village to demand 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 Village. 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, when required.
D.
Wind turbine safety standards. The licensee shall comply with the
following safety standards:
(1)
All wiring between the wind energy system tower, the turbine, and
the substation shall be underground;
(2)
The outside of wind energy system towers 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.
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 the 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 the license, even if it extends the useful life of the facility.
If licensee desires to extend the term of the license in the future,
the licensee shall be required to apply for such extension or amendment
of the license in accordance with the terms of this chapter.
A.
Cessation of operation. Upon expiration of the license or should
removal of all or part of the wind energy systems facility otherwise
be required under this chapter, the licensee shall effectuate the
removal of the wind energy system affected. Further, if the licensee
ceases 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 Milwaukee County Register of Deeds and
shall show the locations of all such foundations.
B.
Financial assurance.
(1)
The licensee shall assure funding of the removal obligations by a
letter of credit, cash or the equivalent held in trust in favor of
the Village, in a form to be approved by the Village Attorney in an
amount to be determined by the Village Board using the following procedure.
The licensee shall submit an estimate of the removal obligations by
a qualified engineer, approval of which shall not be unreasonably
withheld. The Village Board may waive this requirement for a financial
guarantee in the case of a small wind energy system.
(2)
The amount of the required financial guarantee may be adjusted by
the Village Board on an annual basis in accord with the Consumer Price
Index as published by the United States Department of Labor, Bureau
of Labor Statistics, in which circumstance the licensee shall be required
to submit new surety in the adjusted amount. Further, and 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 Village's written notice, the Village and/or its
agents shall be allowed to enter onto the premises for purposes of
razing and removing the subject structures. All costs associated with
the Village's efforts in this regard shall be placed upon the
real estate tax bill of the site as a special charge.
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 Village 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 Village 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 the 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 the license or this chapter for a period of 30 days
after it has received written notice of such failure from the Village;
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 Village 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 Village 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.
Unless the Village Board authorizes a different term based upon
analysis of the useful life of the wind energy systems facility, every
license issued pursuant to this chapter will terminate upon the expiration
of 30 years from the date of issuance.
The licensee shall reimburse the Village as required by Chapter 67, Finance and Taxation, Article III, Charges for Professional Fees, of the Village Code for all costs and expenses incurred by the Village in relation to the application and the facility, both at the time of the application and throughout the term of the license.
