Court rules against local wind restrictions

Wednesday, July 15, 2009

From the written decision of the Wisconsin Court of Appeals, District 2 in ruling against Calumet County's restrictive ordinances that blocked the Ecker Brothers from adding turbines to the one already on their farm:

To encourage the use of renewable sources of energy, the legislature resolved to remove legal impediments to such systems in four ways: (1) codifying the right of individuals to negotiate and establish renewable energy resource easements; (2) clarifying the authority of, and encouraging, political subdivisions to employ existing land use powers for protecting access rights to the wind and sun; (3) creating a procedure for issuing permits to owners and builders of active solar and wind energy systems; and (4) encouraging political subdivisions to grant special exceptions and variances for renewable energy resource systems. Numrich, 242 Wis. 2d 677, ¶18 (citing Laws of 1981, ch. 354, § 1(2)(b)). No. 2007AP210913

These strategies indicate that the legislature determined it appropriate to give political subdivisions the power to assist in the creation of renewable energy systems and thus become an integral and effective factor in the State’s renewable energy goal. But, this history does not indicate that the State intended to delegate the power of policymaking. Instead, the evidence is that the State delegated the authority to execute and administer its established policy of favoring wind energy systems, and the statutory scheme was intended to create avenues for political subdivisions to assist the State. If the County and other similarly situated localities believe that localities should be able to decide for themselves whether and to what extent wind systems are welcome in their geographical area, their argument is best made to the legislature.

Because the legislature did not delegate legislative powers to localities, the County cannot make findings of legislative fact. The County thus exceeded its authority under WIS. STAT. § 66.0401 when it created its wind energy ordinance. We therefore hold the ordinance to be [beyond the authority of the county].

We reverse and remand with directions that the circuit court reconsider the Ecker Brothers’ declaratory judgment action given that the ordinance is [beyond the authority of the county].