Rick's Notebook Archive

Every month as I post my newest magazine article I will also archive older articles.
Regards, Rick Stadelman - Executive Director

Wind Turbine Siting - March, 2008

Many towns across the state have been facing the issue of siting of wind turbines used to create power. Proposed turbines have been from one or two towers to multiple turbines in grid patterns over several square miles. Some towers would exceed 350 to 400 feet in height. These proposal have triggered local neighbors to the proposed wind turbines to push the town and county boards to adopt ordinances to try to regulate the siting to protect their interests and the community interests.
 

The concerns raised from neighbors include the danger from a tower collapsing, noise impacts, impact on birds and other wildlife, shadow/flicker effect, possible throwing ice, reduction in property values, impacts on local roads, and more. To protect these neighbors and the community interests there have been ordinances drafted.
 

The state law however limits the restrictions that a town, village, city or county can adopt on the installation of wind energy systems (as well as solar energy systems) under Sec. 66.0401 of Wis. Statutes by saying that any local restriction must satisfy one of the following:
(a)Serves to preserve or protect the public health or safety;
(b)Does not significantly increase the cost of the system or significantly decrease its efficiency;
(c)Allows for an alternative system of comparable cost and efficiency.
 

While there has been several different examples of ordinances that have been examined and even adopted by some towns and counties around the state, the wind turbine developers continue to argue that most local ordinances are not defendable because they do not meet the criteria in Sec. 66.0401 of Wis. Statutes.
 

The ordinances that have some of the strongest limitations have established setbacks and noise restrictions on the proposed wind turbines. Trempealeau County for example has set a minimum setback from any wind turbine to a neighboring residence of at least one mile in distance. Other examples have picked ½ mile setback down to as low as 1,000 feet from residences. For noise restrictions some ordinances have limited the noise at the property line of the wind turbine to no more than 5 dba over ambient noise levels. While these standards are very technical, the industry has stated that these limitations are beyond any standards for any other industry and are not reasonable limitations. Several lawsuits against towns and counties have been threatened by wind turbine developers, including the filing of notices of claims, which is the first step in filing a lawsuit.
 

Several towns officers over the last year have asked our Association for a model ordinance to regulate wind turbine siting. We have not felt comfortable recommending any one ordinance as the best example, because there does not appear to be a good consensus on what are reasonable and defendable setback and noise levels, among other issues to be included in these ordinances. Several citizens groups around the state have cited studies to defend the higher standards, but the industry counters that the studies are not scientific or peer reviewed studies that support the standards.
 

Our Association has always believed in local control over impacts over business and industries that impact their citizens and community. We also have recognized that at times state guidelines for local governments to adopt and enforce have been beneficial to avoid continued legal challenges. The use of state standards applied locally for new and expanding livestock facilities over 500 animal units is one example of this practice.

The town and county have the authority to adopt local ordinances to require permits under either a licensing ordinance or zoning conditional use for new and expanding livestock facilities. The state law and administrative rules set the minimum standards the livestock facilities are required to meet to address odor, groundwater runoff, manure management, and other requirements. The state rule developed a standard application for local governments to use in judging whether the livestock facility meets the state standards. This model also allowed for the local authority to enforce and regulate the livestock facilities once in operation.
Many may remember that before the livestock facility siting law (Sec. 93.90 of Wis. Statutes) in 2004, there were legislative bills to totally preempt the town and county authority over adopting local ordinances which established setbacks and standards which many believed were unreasonable. While no bill has been introduced to totally preempt local control over wind turbines in Wisconsin, some have advocated that all licensing and regulation be moved to the State Public Service Commission without any local control involved.
 

It also needs to be pointed out that the use of “wind energy” as an alternative source of energy in our state has been advocated by many groups. The state has goals to have 25% of its state energy generated by renewable sources by 2025. The Governor has created both a Task Force on Global Warming and an Office of Energy Independence within the Governor’s administration to seek these goals. While “wind energy” is one of the politically popular alternative energy sources being promoted, the impacts of the wind turbines on immediate neighbors can be very significant.
 

Within the past month the State Public Service Commission staff has met with our Association, Wisconsin Counties Association, wind developers, and promoters of wind energy to discuss the development of a possible model to site wind turbines in Wisconsin and still protect the interests of neighbors and the community. The concepts discussed have paralleled the processes in the livestock facility siting law and rule.
 

First, the state legislature would give legislative authority to the Public Service Commission to develop state standards (minimum and maximum limitations) on such things that would include “visual appearance, lighting, electrical connections to the power grid, setback distances, maximum audible sound levels, proper means of measuring noise, interference with radio, telephone, or television signals, decommissioning, or matters of public health and safety concerning wind energy systems.”
 

Second, the standards would be developed by administrative rule by the Public Service Commission (PSC), however, there would be no authority for emergency rule making. Our Association’s concern is that the rule making be as open to public input as possible, in fact we would encourage a technical advisory committee be developed by PSC, which would include individuals representing the
neighbors most impacted by wind turbines.

Third, the wind turbine siting rules would allow towns and counties the option of adopting the state standards or not adopting any requirements if they so choose. The state standards would include a process with timelines for decisions by local government to give predictability to the industry. Appeals of local decisions applying the state standards to wind turbines over 1 megawatt in size would be to the PSC. Appeals of local decisions applying the state standards to wind turbines under 1 megawatt in size would be to circuit courts.
 

Fourth, we have expressed as one of our bottom lines in this process that control over weight limits on town and county highways would remain in full control of the town and county as it did under the livestock facility siting law. Town and county authority to establish both seasonal and special weight limits under Sec. 349.16 of Wis. Statutes has always been subject to a standard of reasonableness. It should be recognized that with large wind turbines in excess of 200 or 300 feet in height, that there will be impacts on local highways both at the time of construction and during times of needed maintenance. To reach the “hub” of a large wind turbine, a very large and heavy crane will be needed to service the facility.
 

While there will be some who will argue that we should not allow any wind turbines within a mile or less of residences in Wisconsin for various reasons, the reality is that the proponents of wind energy will keep pushing for siting of these large turbines in Wisconsin. We want to retain as much local control and oversight over these facilities as possible.
 

The Wisconsin Towns Association Board of Directors has authorized the staff to support a legislative bill to authorize the PSC to develop state standards for local ordinances for wind turbine siting. The board has expressed two points that need to be recognized in this bill and the rules. First, that the rule development by PSC be done in the most deliberative process possible taking into account impacts on immediate neighbors by using a technical advisory committee or advisory committee including citizen neighbors in development of the rules. Second, that the law and rule recognize impacts on adjacent neighbors to the wind turbines and that such impacts be compensated appropriately by the wind turbine developers.
It needs to be pointed out that at the time of writing this article (late February, 2008) that the state legislature is nearing the end of the current regular floor session, scheduled to end as of March 13, 2008. It may be too late in this session to pass such a law. Current ordinances in place will stand until challenged in courts. If current ordinances can meet one of the limitations mentioned on page one of this article under Sec. 66.0401 of Wis. Statutes, they will stand. However, if the current ordinances will not meet one of these limitations, the ordinances may be struck down. Thus in the present state of the law, towns and counties will have to individually be able to defend their local standards. We will provide an update on the status of this issue in coming months.
 

WTA Capitol Day
On behalf of the WTA Board of Directors and the Urban Towns Committee Executive Board, thank you to the 125 town officers who attended the 2008 WTA/UTC Capitol Day on Wednesday, February 13, 2008. Through the efforts of these individuals we were able to promote the interests of town government on several key issues. Participants came from across the state, including by bus from Barron, Rusk, and Chippewa counties. Again, for all that attended, thank you for your personal efforts!
 

WISLINE Training in coming Months
Please note the special WISLINE training programs on topics from Annual Meeting to Alcohol Licensing to Open Meeting to Public Records to Parliamentary Procedure to Minute Taking which are noticed later in this magazine. If you want more information call (608) 262-9960.

Revisions to Impact Fee - February, 2008

On January 4, 2008, Governor Doyle signed Assembly Bill 341 into law. It was published as 2007 Wis. Act 44 on January 18, 2008 and therefore became effective the next day. This new law revises the impact fee law, primarily Sec. 66.0617 of Wis. Statutes. Our Association supported AB 341 because we believed that the changes to the impact fee law enacted in 2006 seriously limited local government’s ability to use impact fees to pay for new public facilities which are necessary to accommodate development in the town, village, or city.
 

First let’s talk about impact fees in Wisconsin, which have been authorized by law since 1995. Impact fees are a concept where local government charges a fee upon approval of a residential development, usually a subdivision plat, based upon the projected public facilities that will be needed to provide service to the new development. The intent is to require that new development pay for these additional costs rather than pass the burden upon existing taxpayers. Public facilities is defined in Sec. 66.0617 (1)(f) of Wis. Statutes to mean “highways, as defined in Sec. 340.01 (22), and other transportation facilities, traffic control devices, facilities for collecting and treating sewage, facilities for collecting and treating storm and surface waters, facilities for pumping, storing, and distributing water, parks, playgrounds, fire protection facilities, law enforcement facilities, emergency medical facilities and libraries.”
The statute goes on to state that public facilities under the Wisconsin law does not include facilities owned by a school district.
 

Specific procedures are required for towns, villages, and cities to enact impact fees. First, before enacting an impact fee ordinance, the town, village, or city must prepare a needs assessment for the public facilities for which the impact fees will be imposed. The details of the needs assessment are spelled out in Sec. 66.0617 (4)(a) of Wis. Statutes. The needs assessment must include (i) an inventory of existing public facilities; (ii)an identification of the new public facilities or improvements to existing public facilities that will be required to meet the needs of the new land development; (iii) a detailed estimate of the capital costs of providing these new facilities or improvements to existing facilities.
 

Second the local government must hold a public hearing (after giving a Class I notice) on the proposed ordinance imposing an impact fee or an amendment to an existing impact fee ordinance. The needs assessment described in the paragraph above must be available for public inspection at least 20 days before the public hearing to enact or amend the impact fee ordinance.
 

Third, the statute states standards for impact fees under Sec.66.0617 (6):
(a) Shall bear a rational relationship to the need for new, expanded or improved public facilities that are required to serve land development.
(b) May not exceed the proportionate share of the capital costs that are required to serve land development, as compared to existing
uses of land within the municipality.
(c) Shall be based upon actual capital costs or reasonable estimates of capital costs for new, expanded or improved public facilities.
(d) Shall be reduced to compensate for other capital costs imposed by the municipality with respect to land development to provide or pay for public facilities, including special assess-ments, special charges, land dedications or
fees in lieu of land dedications under ch. 236 or any other items of value.
(e) Shall be reduced to compensate for moneys received from the federal or state government specifically to provide or pay for
the public facilities for which the impact fees are imposed.
(f) May not include amounts necessary to address existing deficiencies in public facilities.
(g) Shall be payable by the developer or the property owner to the municipality in full within 14 days of the issuance of a building
permit or within 14 days of the issuance of an occupancy permit by the municipality.

One of the key standards is the very first standard, that an impact fee “shall bear a rational relationship to the need for new, expanded, or improved public facilities that is required to serve the land development.” While impact fees are intended to require new development to pay for the added public facilities to serve the new development, the new development is not responsible for the share of public facilities or improvements that existing development should pay for. The public needs assessment should identify what this proportionate share of the public facility improvements should be borne by the new development versus existing development.
 

While impact fee in Wisconsin have been in the law since 1995, significant changes to the law were enacted by 2005 Wis. Act 477, which became effective in June, 2006. These changes were pushed through by organizations trying to limit the use of impact fees over the objection of municipal associations. The changes enacted in 2006 limited the time to hold impact fees from the date of collection to seven years. Impact fees were not payable until 14 days of issuance of a building permit or occupancy permit and not at the time of the plat approval (as historically been required). The 2006 changes also prohibited the use of “fees in lieu of land dedication,” a common practice used by many municipalities in lieu of full fledge impact fees.
 

Now to the new act signed by Governor Doyle in early January, 2008. 2007 Wis. Act 44 modifies some of the most significant changes enacted in 2006.
 

First, impact fees may now be held for ten years from the time collected plus three years longer if the municipality finds due to extenuating circumstances or hardship a longer time to hold the impact fees is needed.

Second, impact fees collected before January 1, 2003, must be used for the purpose for which it was imposed not later than December 31, 2012. {The changes in 2006 required that any impact fees held beyond these time limits must be paid to the current owner of the property upon which the unused impact fee was imposed, has not been changed by Act 44.}

Third, the change in 2006 that provided impact fees were only payable to the town, village, or city upon the issuance of the building or occupancy permit, has been modified under 2007 Wis. Act 44 to provide that impact fees are payable at the time of issuance of a building permit.

Fourth, the municipality may not pass on costs for professional services (in reviewing plats) in excess of the actual fees paid by the municipality. Further the third party professional may not charge a rate for reviewing plat in excess of the rate customarily paid for the similar services by the municipality.
 

Fifth, Wis. Act 44 modified the changes in 2006 which prohibited the use of fees in lieu of land dedication. The new law allows such fees to be imposed by the municipality for the acquisition or initial improvement of land for public parks. These fees must bear a “rational relationship” to the need for parkland or park improvements.
 

Sixth, a new provision not included in the impact fee law, provides the municipality must accept as a public facility for which the municipality is responsible, “storm water management or treatment facilities” (such as storm water sedimentation ponds) under certain conditions. These conditions are: (a) the storm water management facility must have been shown on the preliminary plat as a “Dedicated to the Public for Storm Water Management Purposes”; (b) the storm water facility does not have to be accepted until 80% of the lots in the subdivision have been sold; and (c) a professional engineer certifies to the municipality that all of the following conditions have been met: (i) the storm water facility is functioning properly in accordance with the plans and specifications of the municipality, (ii) any required plantings are adequate, well-established, and reasonably free of invasive species, and (iii) any necessary maintenance, including removal of construction sediment has been properly performed.
 

Seventh, the effective date for the changes related to the fees in lieu of land dedication for parks and storm water facilities are applicable to preliminary plats submitted for approval after the effective date of the law (which would be after January 19, 2008).
While this new act does not return town, village or city authority with regard to impact fees to the law prior to 2006, the new law does make the use of impact fees more practical. We would commend Rep. Mark Gottlieb of Port Washington for his work in getting the groups that had passed the changes in 2006 to the table and accepting these revisions.
 

We would encourage all towns and villages that have impact fee ordinances to review their current ordinances and consult with their town or village attorney to revise them accordingly to comply with 2007 Wis. Act 44 and take advantage of the revisions that this new law gives municipalities. The new law can be obtained at the Wisconsin State Legislature’s website at: http://www.legis.state.wi.
 

We will have information on these changes at the upcoming WTA District meetings in the next two months.
If you town or village does not have an impact ordinance, but are experiencing new residential development which is placing a burden on your existing public facilities, you may want to consider adopting an impact fee ordinance. We would suggest consulting with professional services (engineers and other professional consultants) to consider the benefits of an impact fee ordinance for your town or village.

Revisions to Boundary Agreement Law
Governor Doyle also signed AB 254 into law on January 4, 2008, which was published as 2007 Wis. Act 43 on January 18, 2008. This bill is the work of a Legislative Council Study Committee created in 2004 on “Municipal Annexation.” The new law makes modifications to Sec. 66.0307 of Wis. Statutes regarding “Boundary Agreements by Cooperative Plan.” Our Association did not oppose the bill, but have continued to express our concern that the bill did not go far enough to force cities and villages to negotiate and attempt to reach cooperative boundary agreements.
 

2007 Wis. Act 43 first simplifies the current procedures in Sec. 66.0307, by substituting for the current detailed planning requirements, a general requirement for consistency with a comprehensive plan. The bill also reduces from 120 days to 60 days the minimum number of days that must pass, following the last authorizing resolution by a participating municipality, before the public hearing on the proposed cooperative plan may be held. The length of time involved under Sec. 66.0307 under the past law had been a criticism of the law.
 

Act 43 also provides an incentive for towns, villages, and cities to negotiate the development of a cooperative plan through mediation. If a city or village refuses to engage in mediation after being requested to do so, an annexation commenced during the shorter of 270 days after the refusal or the period beginning after the refusal until the city or village agrees to engage in mediation may be contested by the petitioning town if the Department of Administration (DOA) determines the annexation is not in the public interest following an advisory review of the annexation. On the other hand if a town refuses to engage in mediation, the town may not contest any annexation of its territory to the petitioning city or village that is commenced during the shorter of 270 days after the refusal or the period beginning after the refusal until the town agrees to engage in mediation. If both parties (the town and city/village) agree to engage in mediation, the mediation period expires after 270 days unless the participating municipalities agree to extend the period.
 

The third important focus of Act 43 relates to a procedure for boundary agreements under the “General Intergovernmental Cooperation Law,” Sec. 66.0301 of Wis. Statutes. This new law establishes a specific procedure for common municipal boundaries to be determined by agreement under Sec. 66.0301. These agreements may include other provisions which the parties may agree upon including municipal revenue sharing under Sec. 66.0305 of Wis. Statutes. These boundary agreements expire at the end of ten years. The new law also requires a public hearing on the proposed agreement and provides for a referendum of the electors residing within the territory whose jurisdiction is subject to change as a result of the agreement if a petition with sufficient signers is timely submitted asking for such a referendum.
 

The new law limits the application of Sec. 66.0225 (which is a statute that fixes boundaries by court judgment) to contested annexations and limits the scope of a boundary determination under this procedure to that portion of the boundary “that is the subject of the annexation.”
 

Lastly, Act 43 encourages towns, villages, and cities to use “alternative dispute resolution” (ADR) procedures under Sec. 802.12 of Wis. Statutes. The DOA is to make a list of professionals qualified to facilitate ADR of annexation, boundary, and land use disputes. While Act 43 as passed does take steps to encourage cooperative boundary agreements between towns and cities/villages, our Association does not see that the steps in this new law went far enough to protect towns and town residents and property owners. Encouraging mediation and voluntary dispute resolution to reach agreements is good, but the consequences under Act 43 for cities and villages that do not want to negotiate in good faith is minimal. Our Association has established its two priorities in this legislative session to pass both houses and be signed by the Governor to be AB 423 (which is the reversal of the Wood v. City of Madison, Supreme Court case that gave cities and villages unlimited power to deny plats within extraterritorial areas) and AB 79 or SB 36 (which is the charter town bill).
 

We would like to commend Sen. Alan Lasee, chairperson of the Legislative Special Study Committee in 2004, and Rep. Mark Gottlieb, lead author of AB 254 this session, for their efforts to seek a stronger bill. We hope that legislators do not claim that 2007 Wis. Act 43 is the “end all, cure all” to boundary issues, but address the concerns of towns, town residents and property owners to level the playing field in boundary issues. The state law has been all too long tilted in favor of cities and villages. Reversing the Wood v. City of Madison case as AB 423 would do and giving additional powers to a limited number of charter towns (typically only over 2,500 in population) would be two small steps to level the playing field, yet not prevent annexation or cities and villages from exercising other extraterritorial powers.