[HISTORY: Adopted by the Board of Supervisors of Grant County 11-13-2018 by Ord. No. 70. Amendments noted where applicable.]
A.
Title. This chapter is entitled "The Grant County Wind Energy System
Siting Ordinance."
B.
Purpose. The purpose of this chapter is to adopt and incorporate
the requirements of § 66.0401, Wis. Stats., and § PSC
128, Wis. Admin. Code, as a local ordinance and to establish local
regulations on the installation and use of 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.
C.
Authority. This chapter is adopted pursuant to § 66.0401,
Wis. Stats., and § PSC 128, Wis. Adm. Code.
D.
Applicability. This chapter applies to all lands within the boundaries
of the County lying outside the limits of incorporated cities and
villages.
E.
Severability. If any provision of this chapter or its application
to any person or circumstance is held invalid, the invalidity does
not affect other provisions or applications of this chapter that can
be given effect without the invalid provision or application, and
to this end the provisions of this chapter are severable.
F.
Administration. This chapter shall be administered by the Grant County
Conservation, Sanitation and Zoning Department.
As used in this chapter, the following terms shall have the
meanings indicated:
The Public Service Commission.
The Grant County Conservation, Sanitation and Zoning Committee.
The director of the Grant County Conservation, Sanitation
and Zoning or the department director's designee.
A wind energy system that has a total installed nameplate
capacity of more than 300 kilowatts and that consists of individual
wind turbines that have an installed nameplate capacity of more than
100 kilowatts.
The Grant County Conservation, Sanitation and Zoning Department.
A zoning permit issued by the Grant County Conservation,
Sanitation and Zoning Department.
§ PSC 128, Wis. Admin. Code, Wind Energy Systems.
A wind energy system that has a total installed nameplate
capacity of 300 kilowatts or less and that consists of individual
wind turbines that have an installed nameplate capacity of not more
than 100 kilowatts.
Equipment and associated facilities that convert and then
store or transfer energy from the wind into usable forms of energy.
A.
Permit requirement and fee.
(1)
No wind energy system shall be constructed, located, installed, reconstructed, enlarged, or relocated, including the placement of additional buildings or other supporting equipment used in connection with said wind energy system, without first obtaining a zoning permit and a conditional use permit, except as allowed under Subsection A(2), and without full compliance with the provisions of this Code and all other applicable County and state requirements.
(2)
A single personal wind energy system (PWES) that is for use by the individual landowner on which the PWES is to be located that is 75 feet or under in total height and that has a nameplate capacity of less than five kilowatts may be located on a lot with a County zoning permit. No conditional use permit will be required for a single PWES meeting these requirements. The location of two or more PWESs on a lot, the location of a PWES that exceeds 75 feet in total height or that has a nameplate capacity greater than five kilowatts and/or the location of any other wind energy system on a lot shall require a zoning permit and conditional use permit in accordance with Subsection A(1).
(3)
Applications for conditional use permits and zoning permits must meet the requirements in Subsection C. The exemptions listed under § PSC 128.60 Wis. Adm. Code, shall apply to an application that is submitted for a small wind energy system.
(4)
All fees shall be established by the resolution by the Grant County
Board of Supervisors.
(5)
For large wind energy systems:
(a)
The applicant is responsible for paying all costs incurred by
the County 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
deemed necessary by the County.
(b)
The County shall make the applicant aware of any such costs
prior to incurring the cost and, if the applicant decides not to pay
the costs, the application shall be denied.
(c)
The County shall invoice the applicant for the actual and necessary
costs incurred pursuant to this chapter. The applicant will be provided
15 days from the date of the invoice to reimburse the County.
(d)
The office 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.
(e)
The corporation counsel is authorized to contract with outside
legal counsel to perform services in connection with this chapter.
B.
Permit expiration and extension. A zoning permit issued under this
chapter shall expire if the project construction has not been started
within 18 months of the permit issue date. An extension may be requested
in writing to the director for up to 12 additional months provided
the original permit has not yet expired. The director shall grant
an extension provided the project is not inconsistent with any subsequently
enacted law, rule or regulation under the purview of the office.
C.
Application requirements.
(1)
For small wind energy systems - An owner shall file an application
with the office that, at a minimum, includes the following information:
(a)
Wind energy system description and maps showing the locations
of all proposed wind energy facilities.
(b)
Technical description of wind turbines and wind turbine sites.
(c)
Timeline and process for constructing the wind energy system.
(d)
Information regarding anticipated impact of the wind energy
systems on local infrastructure.
(e)
Information regarding noise anticipated to be attributable to
the wind energy system.
(f)
Information regarding shadow flicker anticipated to be attributable
to the wind energy system.
(g)
Information regarding the anticipated effects of the wind energy
system on existing land uses adjacent to the wind energy system.
(h)
Information regarding the anticipated effects of the wind energy
system on airports and airspace.
(i)
Information regarding the anticipated effects of the wind energy
system on line-of-sight communications.
(j)
A list of all state and federal permits required to construct
and operate the wind energy system.
(k)
Information regarding the planned use and modification of roads
during the construction, operation, and decommissioning of the wind
energy system, including a process for assessing road damage caused
by wind energy system activities and for conducting road repairs at
the owner's expense.
(l)
A representative copy of all notices issued under section (5)[1] and §§ PSC 128.105(1) and 128.42(1), Wis.
Adm. Code, which are:
[1]
PSC 128.105(1) and 128.61: Pre-application notice. At least
60 days before an owner files an application to construct a wind energy
system, an owner shall use commercially reasonable methods to provide
written notice of the planned wind energy system to all of the following:
[1]
Editor's Note: So in original.
(2)
For large wind energy systems: An owner shall file an application
with the office that, at a minimum, includes the following information:
(b)
Information regarding the anticipated effects of the wind energy
system on existing land uses within 0.5 mile of the wind energy system.
(c)
A representative copy of all notices issued under section (5)[2] and §§ PSC 128.105(1) and 128.42(1), Wis.
Adm. Code, which are:
[1]
PSC 128.105(1): Pre-application notice. At least 90 days before
an owner files an application to construct a wind energy system, an
owner shall use commercially reasonable methods to provide written
notice of the planned wind energy system to all of the following:
[a]
Land owners within one mile of the planned wind
turbine host property.
[b]
Political subdivisions within which the wind energy
system may be located.
[c]
Emergency first responders and air ambulance service
providers serving the political subdivisions within which the wind
energy system may be located.
[d]
The Wisconsin Department of Transportation.
[e]
The Public Service Commission.
[f]
The Wisconsin Department of Natural Resources.
[g]
The Wisconsin Department of Agriculture, Trade
and Consumer Protection.
[h]
The office of the Deputy Undersecretary of the
United States Department of Defense.
[2]
PSC 128.42(1): Notice of process for making complaints. Before
construction of a wind energy system begins, an owner shall provide
written notice of the process for making complaints and obtaining
mitigation measures to all residents and landowners within 0.5 mile
of any wind energy system facility. An owner shall include in the
notice the requirements under § PSC 128.40(1), Wis. Adm.
Code, for submitting a complaint to the owner, a petition for review
to the political subdivision, and an appeal to the Commission, and
shall include a contact person and telephone number for the owner
for receipt of complaints or concerns during construction, operation,
maintenance and decommissioning.
[2]
Editor's Note: So in original.
(d)
A copy of all emergency plans developed in collaboration with
appropriate first responders under § PSC 128.18(4)(b), Wis.
Adm. Code. An owner may file plans using confidential filing procedures
as necessary.
(e)
A decommissioning and site restoration plan providing reasonable
assurance that the owner will be able to comply with § PSC
128.19, Wis. Adm. Code.
(3)
For all applications, the owner shall ensure that information contained
in the application is accurate.
(4)
Evidence shall be included for all applications to show that, on
the same day an owner filed an application under this chapter, the
owner did use commercially reasonable methods to provide written notice
of the filing of the application to property owners and residents
located within one mile of the proposed location of any wind energy
system facility. The notice shall include all of the following:
(a)
A complete description of the wind energy system, including
the number and size of the wind turbines.
(b)
A map showing the location of all proposed wind energy system
facilities.
(c)
The proposed timeline for construction and operation of the
wind energy system.
(d)
Locations where the application is available for public review.
(e)
Owner contact information.
A.
Abandonment and decommissioning.
(1)
For small wind energy systems:
(a)
A small wind energy system that does not generate electricity
for a continuous period of 540 days will be deemed abandoned and the
office 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 office with information showing that the small
wind energy system has not been abandoned, the office will withdraw
the notice.
(c)
Unless the office withdraws the notice of abandonment, a small
wind energy system tower must be decommissioned as prescribed by § PSC
128.19, Wis. Adm. Code. If the owner fails to remove a small wind
energy system and reclaim the site, the County may remove or cause
the removal of the small wind energy system and arrange for the 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.
(2)
For large wind energy systems:
(a)
An owner with a nameplate capacity of one megawatt or larger
shall provide the County 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 County 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 County. The amount of financial assurance required
by the County will be the average of the three estimates.
(c)
An owner shall establish financial assurance that is acceptable
to the County and that places the County 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 County determines that the wind energy system has been decommissioned,
as provided for in § PSC 128.19(5), Wis. Adm. Code, or the
County approves the release of the funds, whichever occurs first.
The financial assurance must also provide that the County 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 County may periodically request information from the owner
regarding industry costs for decommissioning the wind energy system.
If the County 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 County may
correspondingly increase or decrease the amount of financial assurance
required.
(e)
The County 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.
(f)
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 County with information about
the reason for the consultation.
(g)
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 County with information
about the consultation.
C.
Noise.
(1)
For small wind energy systems:
(a)
The noise generated by the operation of a small wind energy
system may not exceed 50 dB(A) during the daytime hours and 45 dB(A)
during the nighttime hours as measured at the outside wall of a nonparticipating
residence or occupied community building that existed when the owner
gave notice pursuant to § PSC 128.105(1), Wis. Adm. Code,
or for which complete publicly available plans for construction were
on file with a political subdivision within 30 days of the date when
the owner gave notice pursuant to § PSC 128.105(1), Wis.
Adm. Code.
(b)
The owner of an adjacent nonparticipating residence or adjacent
occupied community building may relieve the owner of the small wind
energy system of the requirement to meet any of the noise limits in
this section by written contract as provide in § PSC 128.14(5)
and (6), Wis. Adm. Code.
(c)
The owner shall provide the notice as prescribed by § PSC
128.61(4), Wis. Adm. Code.
(d)
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 small 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.
(2)
For large wind energy systems:
(a)
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 office 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.
D.
Ownership change.
(1)
An owner shall provide the County with notice of any change in ownership
of the small wind energy system on or before the effective date of
the change.
E.
Setbacks.
(1)
For small wind energy systems:
(a)
A small wind energy system must be set back at least 1.0 time
the maximum blade tip height from any nonparticipating property line,
nonparticipating residence, occupied community building, or overhead
communication and electrical transmission line, not including utility
service lines to individual houses or outbuildings.
(b)
The owner of an adjacent nonparticipating residence or adjacent
occupied community building may waive the required setback distance
by providing a written agreement with the owner to the office and
if the director is in agreement.
(2)
For large wind energy systems:
(a)
A large wind energy system shall comply with the setback distances
shown in Table 1 in § PSC 128.13, Wis. Adm. Code, which
are:
Setback Description
|
Setback Distance
|
---|---|
Occupied community buildings
|
The lesser of 1,250 feet or 3.1 times the maximum blade tip
height
|
Participating residences
|
1.1 times the maximum blade tip height
|
Nonparticipating residences
|
The lesser of 1,250 feet or 3.1 times the maximum blade tip
height
|
Participating property lines
|
None
|
Nonparticipating property lines
|
1.1 times the maximum blade tip height
|
Public road right-of-way
|
1.1 times the maximum blade tip height
|
Overhead communication and electric transmission or distribution
lines, not including utility service lines to individual houses or
outbuildings
|
1.1 times the maximum blade tip height
|
Overhead utility service lines: lines to individual houses or
outbuildings
|
None
|
A.
Application processing.
(1)
Within 30 days of receiving the application, the office shall notify
the applicant whether the application is complete and, if it is not,
what the applicant must do in order to make it complete.
(a)
The applicant shall provide the additional information specified
in the notice to the office within 60 days of the date of the notice.
(b)
If the applicant fails to provide additional information specified
in the notice to complete the application within 60 days of the date
of the notice, the application shall be deemed abandoned. The owner
may file a new 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 file an application.
(2)
As soon as possible after receiving a complete application, the office
shall publish a class 1 notice, under Ch. 985, Wis. Stats., stating
that an application for approval has been filed with the County. If
the application is deemed incomplete, the notice shall state the reason
for the determination. The office will accept written comments on
the application for a period of 10 days following the date of the
published notice.
(3)
The County shall make a record of its decision making on an application
for approval, including a recording of any public hearing, copies
of documents submitted at any public hearing, and copies of any other
documents provided to the political subdivision in connection with
the application for approval.
(4)
The County shall base its decision on an application for approval
on written findings of fact that are supported by the evidence in
the record of any public hearing.
(5)
The County shall approve or disapprove an application for approval
no later than 90 days after the day on which it notifies the applicant
that the application for approval is complete. The County may extend
this time period in writing provided the extension is done during
the initial ninety-day period, except the total amount of time for
all extensions granted may not exceed 90 days. Any combination of
the following extensions may be granted: an extension of up to 45
days if the County needs additional information to determine whether
to approve or deny the application; an extension of up to 90 days
if the applicant makes a material modification to the application;
and/or an extension of up to 90 days for other good cause specified
in writing by the County. If the County fails to act within the initial
90 days, or within any extended time period, the application is considered
approved.
(6)
For large wind energy systems, the County may deny an application
if the proposed site of the wind energy system is in an area primarily
designated for future residential or commercial development as shown
in an adopted comprehensive plan.
(7)
The decision/denial by the County of any application shall be made in writing to the applicant and must include the reasons for the decision/denial. Any decision/denial by the County of an application may be appealed to the Grant County Board of Adjustment following the procedure outlined in Chapter 315 of the Grant County Comprehensive Zoning Ordinance.
(8)
The County shall provide a written decision to the applicant and
the public service commission. Said decision shall contain findings
of fact supported by evidence in the record.
A.
Material change. An owner may not make a material change in the approved
design, location or construction of a wind energy system without the
prior written approval of the office. An owner shall submit an application
for a material change to an approved wind energy system to the County.
The County may not reopen the merits of the earlier approval, but
shall consider only those issues relevant to the proposed change.
B.
An application for material change is subject to § PSC
128.35, Wis. Adm. Code.
C.
At its discretion, the County may hold at least one public meeting
to obtain comments on and to inform the public about a proposed material
change to an approved wind energy system.
The office may contract with a third-party inspector to monitor
and report to the office regarding the owner's compliance with
permit requirements during construction. The inspector monitoring
compliance under this section shall also report to a state permitting
authority upon the state permitting authority's request. The
inspector shall make monthly written reports to the office. The owner
shall reimburse the County for the actual and necessary cost of the
inspector.
A.
Within 90 days of the date a wind energy system commences operation,
the owner shall file with the office and the public service commission
an as-built description of the wind energy system, an accurate map
of the wind energy system showing the location of all wind energy
system facilities, geographic information system information showing
the location of all wind energy system facilities, and current information
identifying the owner of the wind energy system.
B.
An owner shall label each wind turbine location described in its
filing and shown on the map of the wind energy system with a unique
identifier consistent with the information posted at the wind turbine
location under § PSC 128.18(1), Wis. Adm. Code.
B.
An owner shall, at the owner's expense, provide the office with
a copy of the maintenance log for each wind turbine for each month
upon the request of the County.
C.
The office 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.
An owner shall file a notice of decommissioning completion with the
County and any political subdivision within which its wind energy
system facilities are located when a wind energy system approved by
the County has been decommissioned and removed.
B.
The office 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 County by participating in the
decommissioning review process.
A.
A decision by the office that the application is not complete, to
approve or disapprove the application, or to impose a restriction
on a small wind energy system may be appealed to the Public Service
Commission.
B.
Any action by the County to enforce a restriction on a small wind
energy system may be appealed to the Public Service Commission.
C.
An appeal must be filed with the Public Service Commission within
30 days after the date of the decision or the start of the enforcement
action that is being appealed.
A.
Complaint process for wind energy systems.
(1)
An aggrieved person who has made a complaint to an owner in accordance
with § PSC 128.40, Wis. Adm. Code, may petition the County
for review of the complaint if it has not been resolved within 45
days of the day the owner received the original complaint.
(2)
The petition for review must be filed with the office within 90 days
of the date of the original complaint and shall contain the following:
(a)
Name, address, and telephone number of the person filing the
petition.
(b)
Copy of the original complaint to the owner.
(c)
Copy of the owner's original response.
(d)
Statement describing the unresolved complaint.
(e)
Statement describing the desired remedy.
(f)
Any other information the complainant deems relevant to the
complaint.
(g)
Notarized signature of the person filing the petition.
(3)
The office shall forward a copy of the petition to the owner by certified
mail within 10 days of the office receiving the petition.
(4)
The owner shall file an answer to the petition with the office and
provide a copy of its answer to the complainant within 30 days of
its receipt of the petition.
(5)
The answer must include the following:
(a)
Name, address, and telephone number of the person filing the
answer.
(b)
Statement describing the actions taken by the owner in response
to the complaint.
(c)
Statement of the reasons why the owner believes that the complaint
has been resolved or why the complaint remains unresolved.
(d)
Statement describing any additional action the owner plans or
is willing to take to resolve the complaint.
(e)
Any other information the owner deems relevant to the complaint.
(f)
Notarized signature of the person filing the answer.
(6)
The complainant and the owner may, within 30 days following the owner's
filing of its answer, file such additional information with the office
as each deems appropriate.
(7)
The office may request such additional information from the complainant
and the owner as it deems necessary to complete its review.
(8)
The office may retain such consultants or experts as it deems necessary
to complete its review.
(9)
The office shall issue a written decision and may take such enforcement
action as it deems appropriate with respect to the complaint.
(10)
The decision of the office and enforcement action is subject
to review under § 66.0401(5), Wis. Stats.
B.
Additional process for large wind energy systems.
(1)
An owner shall comply with the notice requirements contained in § PSC
128.42(1), Wis. Adm. Code.
(2)
An owner shall, before construction of a large wind energy system
begins, provide the office 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.
(3)
An owner shall, before construction of a large wind energy system
begins, file with the office 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 office current.
A.
Violations.
(1)
It is unlawful for any person to violate any provision of this chapter.
(2)
It is unlawful for any person to knowingly provide false information,
make a false statement, fail to provide, or misrepresent any material
fact to a county agent, board, commission, committee, department,
employee, official, or officer acting in an official capacity under
this chapter.
(3)
It is unlawful for a person to disobey; fail, neglect, or refuse
to comply with; or otherwise resist a permit or order issued pursuant
to this chapter.
(4)
A separate offense is deemed committed on each day that a violation
occurs or continues.
B.
Enforcement.
(1)
Office authority. The office shall enforce this chapter and may conduct
inspections and investigate complaints relating to compliance with
this chapter.
(2)
Inspection authority. The office may request permission to inspect,
at a reasonable time and date, any premises or structure for which
a permit has been applied for or granted to determine compliance with
this chapter. Refusal to grant permission is grounds for denial or
revocation of a permit. If permission is not given, the office may
apply for, obtain, and execute a special inspection warrant pursuant
to § 66.0119, Wis. Stats.
(3)
Notice of noncompliance. If the office finds a violation of any provision
of this chapter, the office may issue a written notice to the owner
stating the conditions of noncompliance, specifying the action required
to come into compliance, and providing a reasonable amount of time
within which compliance is required.
(4)
Permit revocation authority. The office may revoke a permit for substantial
noncompliance with any provision of this chapter, refusal to permit
inspection of wind energy systems facilities for which a permit has
been granted, or failure to comply with the action requirement contained
in a notice of noncompliance.
(5)
Citation authority. The office may issue a citation for any violation
of this chapter. The office is not required to issue a notice of noncompliance
or take any other action prior to issuing a citation.
(6)
Legal referral. The office may refer a violation of this chapter
to corporation counsel for legal action, including an action seeking
injunctive relief. The office is not required to issue a notice of
noncompliance or take any other action prior to referring a violation
to corporation counsel.
(7)
Other enforcement means. Nothing in this section may be construed
to prevent the County from using any other lawful means to enforce
this chapter.
C.
Penalties.
(1)
A person will, upon conviction for any violation of this chapter,
forfeit not less than $100 nor more than $1,000 for each offense,
together with the costs of prosecution for each violation, and may
be ordered to take such action as is necessary to abate the offense
within a specified time.
(2)
The minimum and maximum forfeitures specified in this section are
doubled each time that a person is convicted for the same violation
of this chapter within any twelve-month period.
(3)
A person who has the ability to pay a forfeiture entered pursuant
to this chapter, but who fails or refuses to do so may be confined
in the County jail until the forfeiture and costs are paid, but the
period of confinement may not exceed 30 days. In determining whether
a person has the ability to pay, all items of income and all assets
may be considered regardless of whether the income and assets are
subject to garnishment, lien, or attachment by creditors.
(4)
The failure of a county employee, official, or officer to perform
an official duty imposed by a section of this Code will not subject
the employee, official, or officer to a penalty unless the section
imposing the duty also specifies the penalty.