Damakant Jayshi

Marathon County Environmental Resources Committee on Tuesday declined to approve an ordinance on wind energy systems from the Town of Rietbrock that legal experts warned was more restrictive than state laws allowed and could result in legal liability.

Citing health and safety concerns, among other reasons, the town board adopted the new ordinance in March and requested the Marathon County Board of Supervisors to approve it. Since the ordinance placed more restrictions on the operation of renewable energy in Rietbrock, it required rezoning. Early last month, the members of the committee requested that Corporation Counsel Michael Puerner examine the legality of the ordinance.

On Tuesday, Puerner, based on his analysis and advice from legal experts from the Wisconsin Counties Association, advised against approving the ordinance because it conflicts with state laws. He cautioned that this could lead to legal issues for the county but clarified that his comments were not about the policies regarding wind energy.

“With our role in approval, I could see us being implicated in that,” Puerner told the ERC members, warning of legal liability. He added that the policy of passing an ordinance that is contrary to state law has the risk of creating a precedent. “Where do we draw the line? I would advise against adopting or approving an ordinance we believe exceeds state law.”

The county’s legal advisor mentioned that Attolles Law, S.C. also believes the county has more freedom compared to towns when it comes to making zoning changes. The WCA had hired this law firm to provide their opinion after Puerner had asked for it. This advice was presented during the committee meeting.

The town ordinance was modeled on Wisconsin Public Service Commission’s Chapter 128, which relates to the wind energy systems.

Rietbrock Town Chair Lyonel Wisnewski called the statute outdated and said their ordinance was based on thorough research. Referring to a 2014 report – terming it “outdated” too – from the Wind Siting Council, an advisory body of PSC, he said earlier the wind turbine towers would typically be 75 feet tall, generating approximately 0.5 megawatt of energy. Now, the turbine towers are 600-650 feet tall, generating 4.5MW. They make loud noise, he added, while speaking during the public comments period of the meeting.

“I do not believe it is in the best interest of public health and safety of our residents, our domestic animals, our wildlife, the safety of our residents, the recreational opportunities, nor preservation of prime agricultural farmland in our community,” Wisnewski said.

However, the council report points out that there are “substantial individual differences in how people report their perception of wind energy systems and a negative perception affects whether an individual reports adverse health effects that they attribute to wind energy systems.” The report adds: “The majority of individuals living near utility-scale wind systems do not report stress, sleep deprivation, or chronic adverse health effects attributed to wind turbines.”

During the discussion, Supervisor Allen Drabek said the PSC was supposed to redo all the setback distances, the distances that are considered safe from property where windmill turbines are installed.

“They haven’t been really doing what they’re supposed to be doing,” Drabek said. “So what is our response? Let them do whatever they want?”

ERC Chair Jacob Langenhahn agreed that the PSC should update its wind energy systems-related provisions to reflect the current modern era.

“It is a shame that the state has put us in a situation like this. It’s very unfortunate,” he said. “Unfortunate, but it still does not take away our responsibility to uphold the state laws as they are written.”

Langenhahn also referred to PSC and other Wisconsin statutes regarding restrictions, saying they prevent a political subdivision from placing any restriction on the installation or use of a wind energy system except by adopting an ordinance. But those have to comply with the statute and cannot be more restrictive than the existing regulation.

A number of Rietbrock’s ordinance are more restrictive.

On noise, the ordinance stipulates that the “noise generated by a wind energy system may not exceed 35 dBA for no more than five minutes in one occurrence, as measured at the outside wall of a nonparticipating residence. The existing PSC provision says the noise from the system should not exceed 50 dBA during daytime hours and 45 dBA during nighttime hours.

Similarly, the ordinance demands that the turbine owner provide reasonable shadow flicker mitigation at the owner’s expense to a nonparticipating residence or community building, like schools. It does not mention the duration of the shadow flicker but the PSC regulation does. It says the owner shall provide reasonable shadow flicker mitigation if the nonparticipating residence or occupied community building experiences 20 hours or more per year of shadow flicker.

Another variation is related to property use. The ordinance states that an “owner shall make reasonable efforts to ascertain and accommodate any land use or commercial enterprise located on nonparticipating property within one mile of a proposed wind turbine site.” The PSC provision is nearly identical, but it limits the distance to half of what the ordinance recommended.

When some of the committee members wondered if they could use different words instead of “approve” or “adopt,” the Corporation Counsel, Mr. Puerner, explained that those were the only options. They could either approve the ordinance to send it to the full county board or deny the town’s request. If they deny it, the ordinance will be discarded, he added.

The ERC rejected the ordinance by adopting a motion not to approve it by a majority during a voice vote. Drabek voted against the committee motion.

This is not the first time that the committee and the county board made a decision on wind energy systems. Last year, they wrote to the Wisconsin Legislature asking for restoration of more local control over wind energy, mining and farm runoff.