Wisconsin wind energy facility law preempts county ordinance

by Allison Arends

Ecker Brothers v. Calumet County
(Wisconsin Court of Appeals, July 15th, 2009)

Wisconsin state statute concerning wind energy systems preempts county permitting scheme. 

The Ecker Brothers, who had one working wind turbine on their farm already, wanted to build more wind turbines on their farm property in order to generate energy to sell back to the power company. In order to do so, the brothers needed to obtain a grant. The grant required the Calumet County and the Town of Stockbridge to provide an acknowledgement letter stating that the Ecker Brothers did not need a permit to build wind turbines.  The Town sent a letter but the County did not.  The County instead passed a wind turbine ordinance which categorized wind turbines as either small or large systems, and established across the board regulations for each.  Under this ordinance the Ecker Brothers were required to apply for a permit illustrating that their wind turbine projects met the ordinance’s restrictions.  The Ecker Brothers filed a declatory judgment action in which they stated that the county exceeded its authority under Wis. Stat. 66.0401.  The circuit court agreed with the county, and the Ecker Brothers appealed.

The issue before the Wisconsin Court of Appeals was the extent to which political subdivisions in Wisconsin have the authority to regulate wind energy systems.  Wis. Stat. 66.0401 specifically states that no city, county, town or village may place any restriction on a solar or wind energy system unless the restriction satisfies one of the three following conditions: (1) it serves to preserve or protect the public health or safety; (2) it does not significantly increase the cost of the system or significantly decrease its efficiency; or (3) it allows for an alternative system of comparable cost and efficiency.  The statute also specifically states that political subdivisions can grant permission to trim vegetation causing interference with wind or solar systems, as long as the vegetation was planted after the placement of the energy collection unit.  Calumet County’s ordinance set minimum setback, height and noise requirements for any wind system locating in Calumet County. 

Noting that the intent of the state statute was to favor wind energy systems, the Court of Appeals considered Calumet County’s across the board regulation of all wind energy systems to be a “one size fits all” method of control that was preempted by state statute.  Although the county argued that its ordinance did not violate the state statute because all of its restrictions conform with the three exceptions stated within Wis. Stat. 66.0401, the Court instead viewed the county’s determination that in all cases setback, height and noise limitations were necessary to preserve public health, safety and welfare to be an impermissible intrusion into legislative policy-making.  Wis. Stat. 66.0401 instead contemplates that cities, counties, towns and villages “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.”  The Court took the view that the state statute thus contemplated local regulation in the form of a conditional use permit procedure that restricts systems as needed on a case-by-case basis, rather than a local ordinance creating a permit system with across-the-board regulations based on legislative policy-making. 

The Court of Appeals reversed and remanded the case to the circuit court for reconsideration, in light of the fact that the county exceeded its authority under Wis. Stat. 66.0401 when it adopted its wind energy ordinance.





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