[HISTORY: Adopted by the Town Board of the Town of Holland 3-18-2013 by Ord. No.
5-2013. Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 330.
The purpose of this chapter is to provide a regulatory scheme
for the construction and operation of wind energy systems in the Town
of Holland, Sheboygan County, Wisconsin. This chapter is adopted pursuant
to Wis. Stats., § 66.0401, and PSC 128[1] and pursuant to the Town's general police powers. All
regulations contained herein are adopted to preserve and protect the
public health and safety.
[1]
Editor's Note: Refers to Chapter PSC 128 of the Wisconsin
Administrative Code.
A.
SMALL WIND ENERGY SYSTEM
WIND ENERGY SYSTEM
As used in this chapter, the following terms shall have the meanings
indicated:
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.
Has the meaning given in Wis. Stats., § 66.0403(1)(m),
and is used to convert wind energy to electrical energy.
B.
Other definitions. The remaining definitions set forth in PSC 128.01
are incorporated by reference as though fully set forth herein.
No wind energy system may be installed, constructed or expanded
in the Town without a wind energy system permit granted pursuant to
this chapter.
Every application for a wind energy system permit shall be made
in writing accompanied by the fees required by this chapter and shall
include 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 system
on local infrastructure.
E.
Information regarding noise anticipated to be attributable to the
wind energy system, including options considered to eliminate noise,
GIS maps showing noise levels surrounding wind turbines, computer
modeling of noise impacts, information on ground absorption coefficients
used to model noise, measures used to address low-frequency noise
and infrasound, and any other information necessary for the Town to
assess noise impacts.
F.
Information regarding shadow flicker anticipated to be attributable
to the wind energy system, including alternate turbine locations considered
by the applicant that would eliminate shadow flicker, GIS maps showing
shadow flicker zones for each turbine, shadow flicker computer monitoring
results, and any other information necessary for the Town to assess
shadow flicker impacts.
G.
Information regarding the anticipated effects of the wind energy
system on existing land uses within 0.5 mile of the wind energy system.
H.
Information regarding the anticipated effects of the wind energy
system on airports and air space.
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, copies of all correspondence with
state and federal agencies, statements as to whether each permit has
been approved or denied, and, for those permits that have not yet
been obtained, the anticipated timeline for obtaining the permit.
K.
Information regarding the planned use and modification of roads within
the Town 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 copy of all emergency plans developed in collaboration with appropriate
first responders under PSC 128.18(4)(b). An owner may file plans using
confidential filing procedures as necessary.
M.
A decommissioning and site restoration plan providing reasonable
assurances that that the owner will be able to comply with PSC 128.19.
N.
A representative copy of all notices issued under § 324-7 of this chapter and PSC 128.105(1)(a) and 128.42(1).
O.
Certification that the preapplication notice requirements of PSC
128.105(1) were met, including a list of all landowners who received
preapplication notices under PSC 128.105(1)(a) and the date that the
landowners were provided preapplication notices.
P.
Information regarding any additional turbines that may be added to
the project in the future.
Q.
Copies of all correspondence to or from Town residents.
R.
Any other information necessary to understand the construction, operation
or decommissioning of the proposed wind energy system.
The owner shall certify that the information contained in an
application is accurate. The Town may reject or deny the application
if it contains false, misleading, or inaccurate information.
The applicant shall file an original and three copies of the
application with the Town. One copy shall be an electronic copy. Each
copy shall include, but is not limited to, all worksheets, maps, and
other attachments included in the application.
A.
On the same day an owner files an application for a wind energy system,
the owner shall, under § 66.0401(4)(a)3, Wis. Stats., 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.
At the same time, a copy of the written notice shall be provided to
the Town. The notification shall include all of the following:
(1)
A complete description of the wind energy system, including the number
and size of the wind turbines.
(2)
A map showing the locations of all proposed wind energy system facilities.
(3)
The proposed timeline for construction and operation of the wind
energy system.
(4)
Locations where the application is available for public review.
(5)
Owner contact information.
B.
After the Town receives an application for a wind energy system,
the Town shall publish the notice required by Wis. Stats., § 66.0401(4)(a)1,
which shall include a brief description of the proposed wind energy
system and its proposed location, the locations where the application
is available for public review, the method and time period for the
submission of public comments to the Town, and the approximate schedule
for review of the application by the Town.
A.
The Town shall make a copy of an application for a wind energy system
available for public review at a local library and at the Town Hall
or location where the Town maintains records for public access, and
it may make an application available on the Town website.
B.
The Town shall accept written public comments on an application for a wind energy system filed with the Town Clerk and shall make them part of the record at the public hearing held pursuant to Subsection C.
C.
The Town shall hold at least one public meeting to obtain comments
on and to inform the public about a proposed wind energy system.
If a wind energy system is proposed to be located in the Town
and at least one other municipality with jurisdiction over the wind
energy system, the Town may participate in the joint application review
process set forth in PSC 128.30(7).
A.
Complete applications.
(1)
An application is complete if it meets the filing requirements set
by this chapter and PSC 128.50(1).
(2)
The Town 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, unless
the application was filed prior to adoption of this chapter, in which
case the Town shall notify the owner in writing of the completeness
determination no later than 45 days after the day this chapter is
adopted. An application is considered filed the day the owner notifies
the Town in writing that all the application materials have been filed.
If the Town determines that the application is incomplete, the notice
provided to the owner shall state the reasons for the determination.
(3)
The owner may file a supplement to an application that the Town has determined to be incomplete. There is no limit to the number of times that an owner may refile an application. For incomplete applications, the owner shall provide additional information as specified in the notice under Subsection A(2).
(4)
An additional forty-five-day completeness review period shall begin the day after the Town receives responses to all items indentified in the notice under Subsection A(2).
(5)
If the Town does not make a completeness determination within the
applicable review period, the application is considered to be complete.
B.
Requests for additional information. The Town may request additional
information necessary to understand the wind energy system after determining
that an application is complete. An owner shall provide additional
information in response to all reasonable requests. An owner shall
respond to all inquiries made subsequent to a determination of completeness
in a timely, complete and accurate manner.
Pursuant to PSC 128.10(1), the Town incorporates by reference
all owner requirements set forth in Subchapter II of PSC 128 (and
all subsequent amendments thereto) to their fullest extent. (For example,
all permissive provisions are mandatory, and all quantifiable standards
are adopted in their most-stringent form.) A copy of Subchapter II
is attached for reference as Exhibit A. The attached Exhibit A is
a current version of Subchapter II. It may be replaced without further
notice, hearing, or Town approval in the event it is amended.
A.
The Town shall issue a written decision to grant or deny an application.
The written decision shall include findings of fact, supported by
evidence in the record. If an application is denied, the decision
shall specify the reason for the denial. The Town shall provide its
written decision to the owner and to the Public Service Commission
of Wisconsin. If the Town approves an application for a wind energy
system, the Town shall provide the owner with a duplicate original
of the decision. If an application is approved, the Town will issue
a written permit with conditions.
B.
The owner shall record the duplicate original of a decision approving
an application with the Register of Deeds for Sheboygan County, Wisconsin.
C.
The Town shall keep a complete written record of its decision-making
relating to an application for a wind energy system. The record of
a decision shall include all of the following:
(1)
The approved application and all additions or amendments to the application.
(2)
A representative copy of all notices issued under PSC 128.105(1)(a),
128.30(5) and 128.42(1).
(3)
A copy of any notice or correspondence that the Town issues related
to the application.
(4)
A record of any public meeting under PSC 128.30(6)(c) and any hearing
related to the application. The record shall include any documents
or evidence submitted by meeting or hearing participants.
(5)
Copies of any correspondence or evidentiary material that the Town
considered in relation to the application, including copies of all
written public comments filed under PSC 128.30(6)(b).
(6)
Minutes of any Town Board or committee meetings held to consider
or act on the application.
(7)
A copy of the written decision under PSC 128.32(3)(a).
(8)
Other materials that the Town prepared to document its decision-making
process.
(9)
A copy of any Town ordinance cited in or applicable to the decision.
D.
If the Town denies an application, the Town shall keep the record
for at least seven years following the year in which it issues the
decision.
E.
If the Town approves an application, the Town shall keep the record
for at least seven years after the year in which the wind energy system
is decommissioned.
F.
The Town may deny without a hearing an application for approval of
a wind energy system with a nominal capacity of at least one megawatt
if the proposed site of the wind energy system is in an area primarily
designed for future residential or commercial development as shown
on a map adopted as part of the Town of Holland Comprehensive Plan
prior to June 2, 2009, or on such maps adopted by the Town after December
31, 2015, under Wis. Stats., § 66.1001(2)(i).
[Amended 4-12-2021 by Ord. No. 3-2021]
Approval of a wind energy system remains in effect if there
is a change in ownership of the wind energy system. However, a wind
energy system owner must provide notice within 30 days to the Town
of any change of ownership of the wind energy system.
A.
The applicant shall deposit an application fee of $15,000 with the
Town at the time the application is filed. All costs incurred by the
Town relating to the review and processing of the application, including
the cost of services necessary to review an application that are provided
by outside engineers, attorneys, planners, environmental specialists,
acousticians, and other consultants or experts, shall be billed against
the deposit. The applicant shall maintain a minimum of $2,000 in the
account until the review process and construction (if approved) is
completed. If the balance in the account drops below $2,000, the applicant
shall deposit additional money to bring the account balance to $5,000
within five business days. The Town will refund any remaining balance
in the account within 60 days after the final inspection of the constructed
wind energy system. The Town reserves the right to refuse review of
an application in the event an applicant fails to comply with this
subsection.
B.
The Town's fee or reimbursement requirement under Subsection A is based on the actual and necessary cost of the review and processing of the wind energy system application and may include the cost of services necessary to review an application that are provided by outside engineers, attorneys, planners, environmental specialists, and other consultants or experts.
The Town requires the following as conditions for approval of
an application to construct a wind energy system:
A.
Information. The owner shall inform the Town in writing whether the
owner has consulted with and received any nonbinding recommendations
for constructing, operating or decommissioning the wind energy system
from a state or federal agency and whether the owner has incorporated
such nonbinding recommendations into the design of the wind energy
system.
B.
Studies. The owner shall cooperate with any study of the effects
of the wind energy system coordinated by a state agency.
C.
Monetary compensation. The owner of a wind energy system shall offer
an agreement that includes annual monetary compensation to the owner
of a nonparticipating residence if the residence is located within
0.5 mile of a constructed wind turbine. For one turbine located within
0.5 mile of a nonparticipating residence, the initial annual monetary
compensation shall be $600. For two turbines located within 0.5 mile
of a nonparticipating residence, the initial annual monetary compensation
shall be $800. For three or more turbines located within 0.5 mile
of a nonparticipating residence, the initial annual monetary compensation
shall be $1,000. The initial monetary compensation under this subsection
shall apply to agreements entered into in 2011. For agreements entered
into in 2012 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 Wis. Stats., § 196.374(5)(bm)2.b,
from the previous year. An agreement offered under this subsection
shall specify in writing any waiver of a requirement or right under
PSC 128 and whether the landowner's acceptance of payment establishes
the landowner's property as a participating property under PSC 128.
D.
Aerial spraying. The owner of a wind energy system shall offer an
agreement that includes monetary compensation to a farm operator farming
on a nonparticipating property located within 0.5 mile of a constructed
wind turbine if the farm operator demonstrates all of the following:
(1)
Substantial evidence of a history, before the wind energy system
owner gives notice under PSC 128.105(1), of using aerial spraying
for pest control or disease prevention for growing potatoes, peas,
snap beans or sweet corn on all or part of a farm field located within
0.5 mile of a constructed wind turbine.
(2)
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 0.5 mile of a constructed wind turbine as a result
of the wind energy system's effect on aerial spraying practices.
E.
Permits. The owner shall submit to the Town copies of all necessary
county, state, and federal permits and approvals.
F.
Annual reports. The owner shall file an annual report with the Town
documenting the operation and maintenance of the wind energy system
during the previous calendar year. The annual report must be filed
on or before the anniversary date of the issuance of the owner's permit.
Within 90 days of the date a wind energy system commences operation,
the owner shall file with the Town 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. An owner shall, in the filings under this section,
label each wind turbine location with a unique identifier consistent
with the information posted at the wind turbine location under PSC
128.18(1)(g).
A.
Material change.
(1)
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 Town, unless the Town automatically approves the material
change by taking either of the steps specified in PSC 128.32(2)(b)1
or 2.
(2)
An owner shall submit to the Town an application for a material change
to an approved wind energy system.
B.
Review limited.
(1)
The Town, upon receipt of an application for a material change to
a wind energy system, may not reopen the merits of the earlier approval
but may consider only those issues relevant to the proposed change.
(2)
An application for a material change is subject to PSC 128.30(1),
(3) to (5), (6)(a) and (b) and (7) and 128.31 to 128.34.
(3)
An application for a material change shall contain information necessary
to understand the material change as determined by the Town.
(4)
The Town 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.
A.
Monitoring procedure. The Town may establish a procedure to monitor
compliance by the owner with any condition on an approved wind energy
system or to assess when wind energy system facilities are not maintained
in good repair and operating condition. The procedure may include
timelines, provide for payment of reasonable fees for conducting an
assessment, and provide for notification to the public. Such procedures
shall be included in the permits granted under this chapter. The owner
shall cooperate with the Town during its monitoring.
B.
Third-party inspector during construction. The Town may require an
owner to pay a reasonable fee for a third-party inspector to monitor
and report to the Town regarding the owner's compliance with permit
requirements during construction. An inspector monitoring compliance
under this subsection shall also report to a state permitting authority
upon the state permitting authority's request.
A.
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) for submitting a complaint to the owner, a petition
for review to the Town, 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.
A.
All of the provisions of this chapter apply to small wind energy
systems except for provisions adopted under the following subsections
of PSC 128: PSC 128.14(4)(d), 128.15(1)(c), (3)(b) to (e), and (5),
128.16(2) to (4), 128.18(1)(g), (2)(b) and (c), (3)(am), (b) and (c),
and (4)(b) to (f), 128.19(1)(c) to (e), (3), and (4), 128.30(2)(l)
and (m), 128.33(1) to (3m) and (5), 128.34(3), 128.36, 128.40(2)(b)
to (e), 128.41, and 128.42.
B.
The standards in this chapter applicable to wind energy systems are
modified for small wind energy systems as follows:
(1)
The preapplication notice shall be filed at least 60 days before
an owner files an application to construct a small wind energy system,
and the notice shall be provided only to adjacent landowners and the
Town.
(2)
Setback distances for small wind energy systems are as set forth
in PSC 128.61(3).
(3)
An owner shall provide notice of the requirements of PSC 128.14 only
to each adjacent nonparticpating residence or occupied community building
before the initial operation of the small wind energy system.
(4)
For purposes of PSC 128.19(1) a small wind energy system is presumed
to be at the end of its useful life if it generates no electricity
for a continuous five-hundred-forty-day period.
(5)
For purposes of PSC 128.30(2)(g), the information regarding the anticipated
effects of the small wind energy system on existing land uses shall
be only for parcels adjacent to the wind energy system.
(6)
Written notice of the filing of an application shall be provided
only to property owners and residents located adjacent to the small
wind energy system.
(7)
Under PSC 128.30(6)(c) the Town may hold at least one public meeting
to obtain comments on and to inform the public about a proposed small
wind energy system.
C.
The applicant shall deposit an application fee of $5,000 with the
Town at the time the application is filed. All costs incurred by the
Town relating to the review and processing of the application, including
the cost of services necessary to review an application that are provided
by outside engineers, attorneys, planners, environmental specialists,
acousticians, and other consultants or experts, shall be billed against
the deposit. The applicant shall maintain a minimum of $1,000 in the
account until the review process and construction (if approved) is
completed. If the balance in the account drops below $1,000, the applicant
shall deposit additional money to bring the account balance to $2,000
within five business days. The Town will refund any remaining balance
in the account within 60 days after the final inspection of the constructed
wind energy system. The Town reserves the right to refuse review of
an application in the event an applicant fails to comply with this
subsection.
Any permit granted for the installation, construction or expansion
of a wind energy system may be revoked by the Town if the permit holder,
its heirs, or assigns, violates the provision of this chapter or the
provisions of a wind energy system permit granted pursuant to this
chapter. Violations of this chapter are also punishable by forfeitures
of not less than $200 and not more than $500 per violation plus costs
and attorneys' fees. Each day a violation exists constitutes a separate
offense. The Town may also seek equitable and injunctive relief in
the event of a violation. Further, the Town may deny a pending application
in the event of the applicant's failure to comply with the provisions
of this chapter.
If any section, subsection, sentence or phrase of this chapter
shall be held invalid, illegal, unenforceable, or unconstitutional
by a court of competent jurisdiction, such portion shall be deemed
a separate, distinct, and independent provision, and such holding
shall not affect the validity of the remaining portions of this chapter;
and there shall be substituted for the provision at issue a valid
and enforceable provision as similar as possible to the provision
at issue.
By filing an application, the owner agrees that neither the
owner nor the Town is an agent, employee, contractor, vendor, representative,
or partner of the other and that neither shall owe a fiduciary duty
to the other or hold itself out to third parties that it is capable
of binding the other party to any obligation or liability. The Town's
approval of an application does not create or constitute a partnership,
joint venture, or any other form of business organization or arrangement
between the Town and the owner.
In their interpretation and application, the provisions of this
chapter shall be considered minimum requirements. Where the provisions
of this chapter impose greater restrictions than any statute, other
regulation, ordinance or covenant, to the extent allowed by law the
provisions of this chapter shall prevail. Where the provisions of
any statute, other regulation, ordinance, or covenant impose greater
restrictions than the provisions of this chapter, to the extent allowed
by law the provisions of such statute, other regulation, ordinance
or covenant shall prevail. All references to statutes and regulations
in this chapter and in Exhibit A refer to the current version of the
statute or regulation referenced, as amended from time to time.
Nothing in this chapter may be interpreted as guaranteeing or
warrantying that any method, construction, product, service, building,
or structure is free from risk. No issuance of a license or permit,
approval, inspection, or other action by any Town official, employee,
or agent shall constitute a warranty or guaranty that any method,
construction, product, service, building, or structure is free from
risk.
This chapter shall take effect and be in force on March 31,
2013.
