[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.
B.
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.
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.
The following terms have the meanings indicated:
The individual or business entity that seeks to secure a
license under this chapter of the Town Municipal Code.
The Town Board for the Town of Herman, Dodge 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 system's contact person for the municipality.
An individual, proprietorship, corporation, association,
partnership, limited liability entity, or other legal entity.
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.
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.
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.
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.
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.
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.
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]
(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.
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.
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.
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.
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.
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.
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.
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.
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.
