A.
The purpose of this article is to adopt and incorporate the requirements
of § 66.0401, Wis. Stats., and Ch. PSC 128, Wis. Adm. Code,
as a local ordinance and to establish local regulations on the installation
and use of large wind energy systems that are authorized by, compliant
with, and no more restrictive than the rules promulgated by the Wisconsin
Public Service Commission, and that serve to preserve or protect the
public health or safety, do not significantly increase the cost of
the system or significantly decrease its efficiency, or allow for
an alternative system of comparable cost and efficiency. Local regulations
on the installation and use of small wind energy systems are contained
in Article 17.
All definitions contained in § 66.0401, Wis. Stats.,
and Ch. PSC 128, Wis. Adm. Code, as amended from time to time, are
hereby incorporated by reference.
A.
An owner must obtain the Village's approval before constructing a wind energy system or expanding an existing or previously approved wind energy system, and no wind turbine may be installed, constructed or expanded without a zoning permit issued for a principal commercial structure by the Department under Article 3.
B.
The owner must pay an application fee at the time the application for a wind energy system is filed with the Department. See § 490-18.21 for additional required fees.
C.
A zoning permit issued by the Department expires if construction
of the wind energy system is not commenced within 24 months from the
date of the permit.
A.
An owner shall file an original application which contains the information
required by § PSC 128.30(2), Wis. Adm. Code, with the Planning
and Development Department (hereinafter referred to as the "Department").
B.
The owner shall submit 11 copies of the application to the Department.
C.
The owner may submit one digital copy of the application to the Department
in a format that is acceptable to the Department.
D.
Each copy of the application shall include all documents, drawings,
maps, worksheets, and other materials that are included in the original
application.
A.
Any document or paper required to be filed with the Village pursuant
to Ch. PSC 128, Wis. Adm. Code, or this chapter must be filed at or
delivered to the Department's office.
B.
Any document, paper or other material submitted to the Village that
relates to an application must be delivered to the Department's office
or submitted to the Department on the record at a public hearing.
C.
Any document or paper filed or otherwise submitted by an owner or
any other interested party that relates to an application must be
8 1/2 inches by 11 inches in size. A person who wishes to submit
a paper that is larger than 8 1/2 inches by 11 inches in size
shall also submit a reduced copy that is 8 1/2 inches by 11 inches
in size.
A.
An owner shall provide information about whether it has consulted
with and received any nonbinding recommendations for construction,
operating or decommissioning the wind energy system from any federal
or state agency and whether the owner has incorporated the nonbinding
recommendation into the design of the wind energy system.
B.
An owner shall cooperate with any study of the effects of wind energy
systems that is coordinated by a state agency.
C.
An owner shall submit a copy of all necessary state and federal permits
and approvals to the Village.
D.
An owner shall provide information showing that is has complied with
the notification requirements specified in §§ PSC 128.105(1),
PSC 128.14(6) and PSC 128.15(5), Wis. Adm. Code.
E.
An owner shall provide information showing that it has complied with the financial responsibility requirements specified in § 490-18.10.
F.
An owner shall submit a copy of all necessary state and federal permits
and approvals to the Village within 30 days of the owner's receipt
of any permit or approval that was not provided with the owner's application.
An owner shall offer an agreement that includes monetary compensation
to a farm operator farming on a nonparticipating property located
within 1/2 mile of a constructed wind turbine if the farm operator
demonstrates all of the following:
A.
Substantial evidence of a history, before the wind energy system
owner gives notice under § PSC 128.105(1), Wis. Adm. Code,
of using aerial spraying for pest control or disease prevention for
growing potatoes, peas, snap beans, or sweet corn on all or part of
the farm field located within 1/2 mile of a constructed wind turbine.
B.
A material reduction in potato, pea, snap bean, or sweet corn production
or a material increase in application costs on all or part of a farm
field located within 1/2 mile of a constructed wind turbine as a result
of the wind energy system's effect on aerial spraying practices.
An owner shall, on or before January 31 of each year, file an
annual report with the Department documenting the operation and maintenance
of the wind energy system during the previous calendar year.
A.
An owner shall establish and maintain a liaison with each political
subdivision within which its wind energy system facilities are located
and with fire, police and other appropriate first responders serving
the area in which the wind energy system facilities are located in
order to create effective emergency plans as required by § PSC
128.18(4)(b), Wis. Adm. Code.
B.
An owner shall distribute a copy of its emergency plans to the following:
(1)
Kenosha County Office of Emergency Management –
|
Kenosha County Office of Emergency Management
Attn: Emergency Management Director
1000 55th Street
Kenosha, WI 53140-3707
|
(2)
Kenosha County Sheriff's Department –
|
Kenosha County Sheriff's Department
Attention: Kenosha County Sheriff
1000 55th Street
Kenosha, WI 53140
|
(3)
Clerk for any town or village within which its wind energy system
facilities are located or that is within 1/2 mile of any of its wind
energy system facilities.
(4)
Clerk for any city within 1/2 mile of any of its wind energy
system facilities.
(5)
Any fire, police or other first responder identified by the
county's emergency management director or the clerk of any city, village,
or town who has received a copy of the owner's emergency plans.
C.
An owner shall provide annual training for the County's Emergency
Management Department, Sheriff's Department, and any other fire, police
or other first responder identified in the owner's emergency plans.
An owner shall provide at least eight hours of training during each
calendar year and is responsible for all direct training costs.
D.
If an owner is required to implement its emergency plans as the result of a wind energy system emergency, it shall conduct a review of employee activities to determine whether the procedures were effectively followed. The owner shall provide the county's emergency management director with a copy of its review. If the review results in any changes to its emergency plans, the owner shall distribute the revised emergency plans as provided in Subsection B.
E.
An owner shall notify the county and Village of the occurrence and
nature of a wind energy system emergency within 24 hours of the wind
energy system emergency.
A.
An owner with a nameplate capacity of one megawatt or larger shall
provide the Village with financial assurance of the owner's ability
to pay the actual and necessary cost to decommission the wind energy
system before commencing major civil construction activities.
B.
An owner shall provide the Village with three estimates of the actual
and necessary cost to decommission the wind energy system. The cost
estimates shall be prepared by third parties agreeable to the owner
and the Village. The amount of financial assurance required by the
Village will be the average of the three estimates.
C.
An owner shall establish financial assurance that is acceptable to
the Village and that places the Village in a secured position. The
financial assurance must provide that the secured funds may only be
used for decommissioning the wind energy system until such time as
the Village determines that the wind energy system has been decommissioned,
as provided for in § PSC 128.19(5)(b), Wis. Adm. Code, or
the Village approves the release of the funds, whichever occurs first.
The financial assurance must also provide that the Village may access
the funds for the purpose of decommissioning the wind energy system
if the owner does not decommission the system when decommissioning
is required.
D.
The Village may periodically request information from the owner regarding
industry costs for decommissioning the wind energy system. If the
Village finds that the future anticipated cost to decommission the
wind energy system is at least 10% more or less than the amount of
financial assurance provided under this section, the Village may correspondingly
increase or decrease the amount of financial assurance required.
E.
The Village may require an owner to submit a substitute financial
insurance of the owner's choosing if an event occurs that raises material
concern regarding the viability of the existing financial assurance.
A.
An owner shall, within 30 days of consulting with any federal or
state agency about the construction, operation or decommissioning
of the wind energy system, provide the Village with information about
the reason for the consultation.
B.
An owner shall, within 30 days of receiving any nonbinding recommendation
for the construction, operation or decommissioning of the wind energy
system from any federal or state agency, provide the Village with
information about the consultation and recommendation and whether
the owner has incorporated the nonbinding recommendation into the
design of the wind energy system.
A.
An owner shall take appropriate measures to ensure that a wind turbine
is not readily climbable except by authorized personnel.
B.
All ground-mounted electrical and control equipment must be labeled
and secured to prevent unauthorized access. An owner shall ensure
that all wind turbine access doors and electrical equipment are locked
when authorized personnel are not present.
C.
An owner shall place appropriate warning signage on or at the base
of each wind turbine.
D.
An owner shall post and maintain up-to-date signs containing a twenty-four-hour
emergency contact telephone number, information identifying the owner,
and sufficient information to identify the location of the sign within
the wind energy system. An owner shall post these signs at every intersection
of a wind energy system access road with a public road and at each
wind turbine location.
E.
An owner shall clearly mark guy wires and supports for a wind energy
system, meteorological tower or other device for measuring wind speeds,
so that the wires and supports are visible to low-flying aircraft
under fair weather conditions.
F.
An owner shall construct, operate, repair, maintain and replace wind
energy system facilities as needed to keep the wind energy system
in good repair and operating condition in a manner that protects individuals
from injury.
An owner shall use shielding or control systems approved by
the Federal Aviation Administration to reduce visibility of light
to individuals on the ground.
A.
An owner shall offer an agreement to the owner of a nonparticipating
residence, if the residence is located within 1/2 mile of a constructed
wind turbine, that includes the following initial annual monetary
compensation of $600 for one turbine located within 1/2 mile of a
nonparticipating residence, $800 for two turbines located within 1/2
mile of a nonparticipating residence, and $1,000 for three or more
turbines located within 1/2 mile of a nonparticipating residence.
B.
The initial annual monetary compensation under this section shall
apply to agreements entered into in 2014. For agreements entered into
in 2015 and thereafter, the initial annual amounts shall increase
each year by the greater of 2% or the increase in the Consumer Price
Index, as described in § 196.374(5)(bm)2, Wis. Stats., from
the previous year.
C.
An agreement offered under this section shall specify in writing
any waiver of a requirement or right under this chapter or Ch. PSC
128, Wis. Adm. Code, and whether the landowner's acceptance of payment
establishes the landowner's property as a participating property under
this chapter or Ch. PSC 128, Wis. Adm. Code.
If an owner receives a complaint of a violation of the noise
standards contained in § PSC 128.14, Wis. Adm. Code, and
the owner has not provided the Department with the results of an accurate
test conducted within two years of the date of the complaint showing
that the wind energy system is in compliance with the noise standard
at the location relating to the complaint, the owner shall promptly
conduct a noise study to evaluate compliance with the noise standards
at that location using the most current version of the noise measurement
protocol as described in § PSC 128.50(2), Wis. Adm. Code.
A.
An owner shall provide the Village with notice of any change in ownership
of the wind energy system on or before the effective date of the change.
A.
An owner shall use reasonable efforts to avoid causing interference
with commercial and personal communications in use when the wind energy
system begins operation, to the extent practicable.
B.
An owner shall use reasonable and commercially available technology
to mitigate interference with personal communications that were in
use when the wind energy system began commercial operations. An owner
shall also use reasonable and commercially available technology to
mitigate interference with personal communications that were not in
use when the wind energy system began commercial operations, if the
wind energy system is causing the interference and the interference
occurs at a location at least 1/2 mile from a wind turbine.
C.
An owner shall use reasonable and commercially available technology
to mitigate interference caused by a wind energy system with commercial
communications in use when a wind energy system begins operation.
D.
Before implementing mitigation measures, the owner shall consult with the affected parties regarding the preferred mitigation solution for personal and commercial communications interference problems. Except as provided in Subsection E, an owner shall mitigate personal communications interference caused by the wind energy system by making the affected party's preferred reasonable mitigation solution effective until either the wind energy system is decommissioned or the communication is no longer in use, whichever is earlier.
E.
An owner shall, under a protocol established by § PSC 128.50(2),
Wis. Adm. Code, implement a new technology solution that becomes commercially
available before the wind energy system is decommissioned to address
interference for which mitigation is required under § PSC
§ 128.16(2) and (3), Wis. Adm. Code, and for which the original
mitigation solution is only partially effective.
A.
Wind energy system facilities shall not be located within an emergency
communications corridor, which is defined as the area within an existing
line-of-sight communication path that is used by a government or military
entity to provide services essential to protect public safety.
B.
Kenosha County will provide the locations of emergency communications
services and line-of-sight corridors that are essential to protect
public safety.
A.
An owner shall utilize all applicable best practices in the placement,
construction, operation and maintenance of its wind energy facilities
in order to minimize soil compaction, protect the topsoil, prevent
topsoil mixing, and avoid and repair any damage to drainage systems
on agricultural land.
B.
An owner shall describe the applicable best practices that it intends
to use in the placement, construction, operation and maintenance of
its wind energy facilities in its application.
An owner shall cooperate with any study of the effects of wind
energy systems that is coordinated by a state agency.
A.
An applicant shall pay an application fee to the Village at the time
that it files its application. The fee will be applied to the cost
of reviewing the application.
B.
An applicant is responsible for paying all costs incurred by the
Village in connection with the review and processing of the application,
including the cost for services provided by outside attorneys, engineers,
environmental specialists, planners and other consultants and experts.
C.
An owner is responsible for paying all costs incurred by the Village
in connection with monitoring compliance during construction and assessing
when wind energy facilities are not maintained in good repair and
operation condition.
D.
The Village shall invoice the applicant or owner for the actual and
necessary costs incurred pursuant to this chapter. The applicant or
owner shall reimburse the Village for those costs within 15 days of
the date of invoice.
A.
The Department is authorized to contract with one or more engineers,
environmental specialists, planners and other consultants and experts
to perform necessary services in connection with this chapter.
B.
The Village Attorney is authorized to contract with outside attorneys
to perform necessary services in connection with this chapter.
A.
An application is complete if it complies with the filing requirements
of this chapter and of §§ PSC 128.30(2) and PSC 128.50(1),
Wis. Adm. Code.
B.
An application is considered filed the day the owner notifies the
Department in writing that all the application materials have been
filed.
C.
The Department shall determine the completeness of an application
and shall notify the owner in writing of the completeness determination
no later than 45 days after the day the application is filed.
D.
If the Department determines that the application is incomplete,
it shall provide the owner with written notice stating the reasons
for the determination. The owner shall provide additional information
specified in the notice, and an additional forty-five-day completeness
review period will begin the day after the Department receives responses
to all items identified in the notice.
E.
If the owner fails to provide additional information specified in
the notice of an incomplete application within 90 days, the application
will be deemed abandoned. The owner may refile the application at
a later date, subject to payment of a new application fee. There is
no limit to the number of times that an owner may refile an application.
F.
If the Village does not make a completeness determination within
the applicable review period, the application is considered to be
complete.
A.
The Department may request additional information necessary to understand
the wind energy system after determining that an application is complete.
B.
An owner shall provide additional information in response to all
reasonable requests.
C.
An owner shall respond to all inquiries made subsequent to a determination
of completeness in a timely, complete and accurate manner.
D.
If the owner fails to provide additional information requested within
90 days, the application will be deemed abandoned. The owner may refile
the application at a later date, subject to the payment of a new application
fee. There is no limit to the number of times that an owner may refile
an application.
A.
The Department shall have 90 days from the date that it notifies
the owner that the application is complete in which to approve or
disapprove the application.
B.
The review period may be extended upon written notice to the applicant
for one or more of the following reasons; but the total time for all
extensions may not exceed 90 days:
C.
If the Department fails to act within the 90 days, or within any
extended time period, the application will be considered approved.
D.
The Plan Commission shall hold one public hearing during the initial
ninety-day application review period for the purpose of receiving
public comments on the application. A hearing notice will be published,
and the hearing will normally be held at the first Commission meeting
following notice to the applicant that the application is complete.
E.
Written comments will be accepted for 10 days following the close
of the hearing.
A.
The Department shall issue a written decision to grant or deny an
application for a wind energy system. The written decision must include
findings of fact supported by evidence in the record. If an application
is denied, the decision must specify the reason for the denial.
B.
The Department shall provide a duplicate original of its written
decision to the owner and the Commission.
C.
The owner shall record the duplicate original of a decision approving
an application with the Register of Deeds.
The Department may contract with a third-party inspector to
monitor and report to the Department regarding the owner's compliance
with permit requirements during construction, as provided for in § PSC
128.36(2), Wis. Adm. Code. The owner shall reimburse the Village for
the actual and necessary cost of the inspector.
Within 90 days of the date a wind energy system commences operation,
the owner shall file with the Department and the Commission an as-built
description of the wind energy system and all other information described
in § PSC 128.34(3), Wis. Adm. Code.
B.
An owner shall, at the owner's expense, provide the Department with
a copy of the maintenance log for each wind turbine for each month
within five calendar days after the end of the month.
C.
The Department may retain such consultants or experts as it deems
necessary to assess and determine whether the wind energy system facilities
are compliant or to assess whether the wind energy system facilities
are being maintained in good repair and operating condition.
A.
A large wind energy system that does not generate electricity for
a continuous period of 360 days will be deemed abandoned, and the
Department may issue a notice of abandonment to the owner.
B.
If within 30 days of receipt of a notice of abandonment, the owner
provides the Department with information showing that the large wind
energy system has not been abandoned, the Department will withdraw
the notice.
C.
Unless the Department withdraws the notice of abandonment, the large
wind energy system must be decommissioned as prescribed by § PSC
128.19, Wis. Adm. Code. If the owner fails to remove the large wind
energy system and reclaim the site, the Village may remove or cause
the removal of the large wind energy system and arrange for reclamation
of the site. The cost of removal and reclamation will become a lien
upon the property and may be collected in the same manner as property
taxes.
A.
An owner shall file a notice of decommissioning completion with the
Village and any political subdivision within which its wind energy
system facilities are located when a wind energy system approved by
the Village has been decommissioned and removed.
B.
The Department shall conduct a decommissioning review to determine
whether the owner has decommissioned and removed the wind energy system
as required by § PSC 128.19(1)(a), Wis. Adm. Code, and whether
the owner has complied with its site restoration obligation under
§ PSC 128.19(4), Wis. Adm. Code.
C.
The owner shall cooperate with the Village by participating in the
decommissioning review process.
A.
A decision by the Department that the application is incomplete,
to approve or disapprove the application, or to impose a restriction
on a wind energy system may be appealed in accordance with the procedures
set forth by the Zoning Board of Appeals or by appealing to the Commission.
B.
Any action by the Village to enforce a restriction on a wind energy
system may be appealed to the Commission.
C.
An appeal must be filed with the Commission within 30 days after
the date of the decision or the start of the enforcement action that
is being appealed.
A.
An owner shall comply with the notice requirements contained in § PSC
128.42(1) and (2), Wis. Adm. Code.
B.
An owner shall, before construction of a wind energy system begins,
provide the Department with a copy of the notice issued pursuant to
§ PSC 128.42(1), Wis. Adm. Code, along with a list showing
the name and address of each person to whom the notice was sent and
a list showing the name and address of each political subdivision
to which the notice was sent.
C.
An owner shall, before construction of a wind energy system begins,
file with the Department the name and telephone number of the owner's
contact person for receipt of complaints or concerns during construction,
operation, maintenance and decommissioning. The owner shall keep the
name and telephone number of the contact person on file with the Department
current.
A.
An owner shall maintain a complaint log as required by § PSC
128.40(2)(d), Wis. Adm. Code.
B.
An owner shall, at the owner's expense, provide the Department with
a copy of the complaint log for each month within five calendar days
after the end of the month.
C.
An owner shall, before construction of a wind energy system begins,
provide the Department with a written copy of the owner's complaint
resolution process. An owner shall provide the Department with a written
copy of any changes to the complaint resolution process at least 30
days prior to implementing the change.
A.
An aggrieved person who has made a complaint to an owner in accordance
with § PSC 128.40, Wis. Adm. Code, may petition the Village
for review of the complaint if it has not been resolved within 45
days of the day the owner received the original complaint.
B.
The petition for review must be filed with the Department within
90 days of the date of the original complaint.
C.
The petition must include the following:
(1)
Name, address and telephone number of the person filing the
petition.
(2)
Copy of the original complaint to the owner.
(3)
Copy of the owner's initial response.
(4)
Statement describing the unresolved complaint.
(5)
Statement describing the desired remedy.
(6)
Any other information the complainant deems relevant to the
complaint.
(7)
Notarized signature of the person filing the petition.
D.
The Department shall forward a copy of the petition to the owner
by certified mail within 10 days of the Department's receipt of the
petition.
E.
The owner shall file an answer to the petition with the Department
and provide a copy of its answer to the complainant within 30 days
of its receipt of the petition.
F.
The answer must include the following:
(1)
Name, address and telephone number of the person filing the
answer.
(2)
Statement describing the actions taken by the owner in response
to the complaint.
(3)
Statement of the reasons why the owner believes that the complaint
has been resolved or why the complaint remains unresolved.
(4)
Statement describing any additional action the owner plans or
is willing to take to resolve the complaint.
(5)
Any other information the owner deems relevant to the complaint.
(6)
Notarized signature of the person filing the answer.
G.
The complainant and the owner may, within 30 days following the owner's
filing of its answer, file such additional information with the Department
as each deems appropriate.
H.
The Department may request such additional information from the complainant
and the owner as it deems necessary to complete its review.
I.
The Department may retain such consultants or experts as it deems
necessary to complete its review.
J.
The Department shall issue a written decision and may take such enforcement
action as it deems appropriate with respect to the complaint.
K.
The Department's decision and enforcement action is subject to review
under § 66.0401(5), Wis. Stats.
