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Court ruling wipes out local wind ordinances

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GINA R. HEINE
August 2, 2009

A recent Wisconsin appeals court ruling wipes away ordinances written in Union and Magnolia townships to regulate wind energy systems, experts say.


But the court ruling would be trumped if the state Legislature approves a bill to develop statewide siting standards.


“Even though we apparently wasted $40,000 coming up with an ordinance, I don’t think the money was completely wasted because I think we have solid, scientific facts that will give our community and the Union Town Board the basis for evaluating these proposals on a case-by-case basis,” said Tom Alisankus, who chaired Union’s wind study committee.


Although the ruling by the District 2 Court of Appeals in Ecker Brothers versus Calumet County applies statewide, the opinion is based on current law. If the proposed wind siting statute is approved, it would override the court ruling, experts say.


Meanwhile, Calumet County and the Wisconsin Counties Association plan to continue the fight in court with an appeal to the Wisconsin Supreme Court, said John Reinemann, legislative director of the counties association.


The judges said Calumet County could not use an ordinance to apply setback, height and other restrictions to all wind energy systems, he said.


The opinion reads: “We hold that this ‘one size fits all’ scheme violates the legislative idea that localities must look at each wind system on its own merits and decide, in each specific case, whether the wind system conflicts with public health or safety.”


Alisankus, a lawyer and municipal judge, said the ruling is misguided because it invalidates ordinances, which is typically how things are regulated.


“Oftentimes, the whole reason you put out an ordinance is so everyone knows ahead of time what the standards are,” he said. “More importantly, everyone is treated the same way.”


Vote on Tuesday

A bill working its way through the Legislature would have the state Public Service Commission develop statewide permitting standards. Now, wind projects of 100 megawatts and more go through the PSC for permitting, and smaller projects are permitted through local municipalities.


That’s created a patchwork of ordinances that make permitting difficult or impossible, the wind industry says.


Officials at the counties association think statewide standards probably are on the way, so they’ve been in contact with those “framing the law in an effort to preserve as much local control as possible,” Reinemann said.


The Senate Commerce, Utilities, Energy and Rail committee is scheduled to vote on the wind siting bill Tuesday, said Kevin Brady, a spokesman for Sen. Jeff Plale, D-South Milwaukee, a co-sponsor of the bill.


The Assembly version of the bill already has passed the Assembly Utilities Committee and is ready for a vote on the Assembly floor, he said.



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