Chapter 19: Solar Energy System Permit
19.01 PREAMBLE
The purpose of this ordinance is to promote the health, safety, prosperity, aesthetics and general welfare of the people and communities within the Town of Dunkirk, Dane County, Wisconsin and set forth the rules and procedures for this municipality regarding solar energy systems (“Systems”) within the Town. This ordinance is adopted pursuant to the Town’s village and police powers under secs. 60.10(2)(c) and 61.34, Wis Statues.
19.02 INTENT
(1) The general intent of this ordnance is to regulate the location, construction, installation, alteration, design, operation, and use of all solar energy systems (“Systems”) within the Town of Dunkirk designed for nominal operation at a capacity of 1,000 kilowatts (kW) or more, but less than 100 MW
(2) Wisconsin courts have recognized that the evaluation of an application for local approval of a System requires a case-by-case approach and that a municipality must receive information about the specifics of a particular proposed System and then decide whether a restriction is warranted. This ordinance is intended to comply with such requirements and is not intended to arbitrarily set a one size fits all scheme of requirements for any system.
19.03 DEFINITIONS
(1) “Construction Activities” means initiation of any construction, land clearing or land disturbance related to construction, installation or operation of a solar energy system.
(2) “Solar energy system” or “System” has the meaning provided in Wis. Stat. Sec. 13.48(2)(h)1.g. and includes transmission facilities dedicated to the solar energy system.
19.04 PERMIT REQUIRED
(1) Permit Requirement. A person, firm. corporation or other legal entity is prohibited from commencing construction activities on a System or operation of a System in the Town without first obtaining a permit from the Town Board (“solar permit”). The procedure for apply for a solar permit is provided in Section 19.05 below.
(2) Permit Term. An initial permit may be approved for a maximum of thirty-five (35) years. A permit renewal under section 19.05(2) may be for a term of up to ten (10) years.
(3) Permit Amendment. If the town has issued a solar permit, the operator may request an amendment to that permit during the permit term, using the same process as applies to the original permit application
(4) Permit Transfer. A solar permit may be assigned or transferred only with the express written consent of the Town upon delivery to the Town of documentation that the transferee to be bound by the obligations of the permitee under this Ordinance and any developer agreement between the Town and the permitee
(5) Permit Revocation. A solar permit may be suspended or revoked under the procedures in section 19.08, below.
19.05 REQUIREMENT FOR APPLY FOR A SOLAR PERMIT OR RENEWAL OF AN APPROVAL
(1) Application for a Solar Permit. The applicant shall submit an application that contains all required documentation required under section 19.07 and shall pay the required application fee of $1,000 to the Town Clerk at the time of submitting the application.
(2) Application for Renewal of a Permit. The operator shall make a written request to the Town Clerk for a renewal of the permit no later than October 1 of the year in which the permit will expire
(3) Preliminary Review, Preliminary Hearing and Proposed Decision.
(a) Preliminary Review. The Town Clerk shall forward an application or a request for renewal to the Plan Commission for initial review to determine if additional information or expertise is necessary to properly evaluate the application. Once the initial review is complete, the Plan Commission will forward the application with recommendations to the Town Board.
(b) Additional Information. The Town Board may request that the applicant submit additional information if the Town Board determines that the application or request for renewal is incomplete, or if the Town Board determines that additional information is needed to determine whether the requested approval will meet the requirements of this Ordinance.
(c) Proposed Decision. Upon completion of its review of the application and a review of any report from retained experts, the Town Board shall issue a proposed decision on whether to grant a solar permit, with or without conditions, or to deny the application or request.
(4) Decision by the Town Board.
(a) Notice and Hearing: Proposed Decision. Upon the issuance of a proposed decision under sub. (3)(c), the Town Clerk shall place preliminary decision of the Town Board on the Town’s website and make it available for public inspection at the Town Hall. The Town Board shall set a date for a public hearing on the preliminary decision and, for an application for a solar permit, give Class II public notice and post notices int he designated posting places at least 15 days prior to the date scheduled for the hearing, and mail the notice to all neighboring landowners. At the public hearing, the town board shall take public comment on the proposed decision.
(b) Town Board Final Decision. Following the receipt of public comments at the public hearing and any submitted written comments, the Town Board will make a final decision whether to grant a solar permit or to renew a permit, or set a date for a subsequent Town Board meeting during which the Town Board will make a final decision.
(c) Basis of Proposed and Final Decisions. The Town Board shall base its proposed and final decisions on a review of the application, any available retained experts’ reports, public comments and information provided at the public hearing, and other relevant information at the discretion of the board.
(d) In the case of an application solar permit, the Town Board shall grant the permit if it determines that the operation of the system will be consistent with the standards and purpose of this Ordinance.
(e) In the case of a request for renewal of the permit, the Town Board shall grant the request for renewal if it finds that there have been no material violations of the Ordinance or the permit which have not been appropriately remedied, the operator has not received multiple or recurring citations or orders for violations of the solar permit or this ordinance.
(f) If the Town Board denies an application for a solar permit or denies a request for renewal of a permit, the Town Board shall notify the applicant in writing.
19.06 APPLICATION
(1) Application Requirements. All applicants for a solar permit shall submit a detailed site plan, including a map, with the applicant’s application. The applicant shall also submit information about the owner of any lands upon which any part of the System will be located, the name, address, phone number and email address of the operator, an operation plan detailing the construction, operations and decommissioning phases over the life of the project, including estimated timelines for each. The applicant shall also provide information addressing the factors set out in section 19.07
(2) Developers Agreement. The Town Board may enter into a developer agreement with an applicant that supersedes in whole or in part of the requirements of this ordinance.
19.07 DECISION FACTORS
(1) The Town Board shall grant the permit, either with or without conditions, if it determines that the development and operation of the System is in the best interest of the citizens of the Town, and will be consistent with the protection of public safety and general welfare. The Town Board shall deny the permit if it determines that the development and operation of the System is not in the best interest of the citizens of the Town, and will bot be consistent with the protection of public safety or general welfare.
(2) The Town Board may conditionally approve the permit and attach conditions to it to protect public health and safety and promote the general welfare of the Town. In making its decision, the Town Board shall consider the following factors:
(a) The size of the parcel to be dedicated to solar energy production.
(b) The proposed height of the photovoltaic panels.
(c) The proposed setbacks from any side or rear property lines
(d) The security measures proposed with regard to fencing, lock boxes, and other items.
(e) The proposed plans for buffering and screening the System from public view.
(f) The proposed plans for complying with state and federal environmental requirements included in stormwater management, impact on water quality and water supply in the area, and control of dust from project activities.
(g) The possible adverse impact the construction and operation of the System will have on town roads and any proposed restrictive provisions and proof of financial security for road maintenance and repair.
(h) The operator’s plans for hours of operation at the site, particularly during construction.
(i) The operator’s plans for limiting night lighting and controlling off-site nose levels to avoid adverse impact on neighboring properties.
(j) The operator’s plans for limiting impact on the wildlife that inhabits the site.
(k) The estimated number of temporary and permanent jobs that will be associated with the development and maintenance of the System.
(l) The proposed time frame, project life, development phases, and future expansion of the project.
(m) The likely markets for the generated energy.
(n) The operator’s plans for emergency and normal shutdown procedures.
(o) The extent of any electromagnetic filed and communications interference that will be generated by the project and the operator’s plans for limiting such.
(p) The operator’s plan for storing, using and disposing of hazardous chemicals or other materials so as to be in compliance with applicable state and federal law.
(q) The operator’s plans for decommissioning the project and reclamation of the land after the anticipated useful life or abandonment or termination of the project, including plans for environmentally safely removing the power generating equipment and any proof of financial security for reclamation
(r) Any other factors relating to the best interest of the citizens of the Town and protection of public health, safety and general welfare.
(3) The evaluation of such factors shall be made by the Town Board on a case-by-case basis.
(4) All Applications shall have applicable federal, state, and local permits and approvals in place or to be in place prior to commencement of operation.
(5) The Town permit shall be void if the permitee violates any conditions of the permit or and conditions of any required Federal, State or County permits or if the System is abandoned.
19.08 INSPECTION, ENFORCEMENT PROCEEDURES, AND PENALTIES
(1) Inspection. The Town Board, a retained expert, or other authorized representative of the Town, may make inspections or undertake other investigations to determine the condition of the System in the Town to safeguard the health and safety of the public and to determine compliance with this Ordnance, upon showing proper identification and providing reasonable notice.
(2) Violations. The following are violations under this Ordinance:
(a) Engaging in construction, installation, or operation of a System without a solar permit granted by the Town Board or a developer agreement.
(b) Making an incorrect or false statement, including the information and documentation submitted during the permitting process or during an inspection by the Town or its dually appointed representative, or a representative of another regulatory agency.
(c) Failure to comply with any conditions of an approval or permit, or any agreements entered into as a condition of approving a permit.
(d) Failure to take appropriate action in response to a notice of violation or citation, or other order issued by the Town.
(3) Hearings.
(a) Any person affected by a notice, order or action under sub. (4) or upon denial of an application for a permit or permit renewal, may request a hearing on the matter before the Town Board, provided such person files with the Town Clerk a written petition requesting a hearing and setting forth his or her name, address, telephone number, and a brief statement of the reason for requesting the hearing. Such petition shall be filed within 30 days of the date of notice, order or action under sub. (4) is served or within 30 days of the date of the approval or denial of the permit or an application for renewal. Upon receipt of the petition, the Town Clerk may set a time and place for a hearing before the Town Board and, if a hearing is scheduled, shall give the petitioner and other interest parties written notice thereof.
(b) After a hearing under par. (a), the Town Board, by a majority vote of the members present, shall sustain, modify or withdraw the notice, order, or action under sub. (4) or grant or deny Ordinance have been complied with. The petitioner shall be notified within 10 days, in writing, of such findings.
(c) The proceedings of the hearing, including the findings and decision of the Town Board and the reasons thereof, shall be summarized in writing and entered as a matter of public record in the office of the Town Clerk. Such record shall be include a copy of every notice, order issues in connection with the case.
(4) Remedies. The Town Board may take any appropriate action or proceeding against any person in violation of this Ordnance, including the following:
(a) Issue a stop work order.
(b) Issue a notice of violation and order that specifies the action to be taken to remedy a situation.
(c) Issue a citation.
(d) Refer the matter to legal counsel for consideration and commencement of legal action, including the assessment of forfeitures under sub. (6) and injunctive relief.
(e) Suspend or revoke the solar permit under sub. (5) in the event there are repeated violations of the conditions incorporated into a solar permit or developer agreement.
(5) Permit Suspension or Revocation. After giving notice and holding a hearing, the Town Board may suspend or revoke a solar permit for a violation under sub. (2).
(6) Penalties.
(a) Any person or entity who violates this Ordinance may be assessed a forfeiture of not less that $500 per violation nor more than $5,000 per violation and/or be subject to injunctive relief. Each day a violation exists is a separate violation.
(b) Any person or entity who violates this Ordinance shall pay court costs and reasonable attorney’s fees associated with a forfeiture assessed under sub. (6)(a) and for any action for injunctive relief sought by the Town. The remedies provided herein shall not be exclusive of other remedies.
(7) Non-Wavier. One or more waivers of any provision of the solar permit by the Town shall not be construed as a waiver of a further breach of the same provision of any other provision of the solar permit. Waivers must be in writing to be effective.
19.09 SEVERABILITY, INTERPRETATION, ANROGATION
(1) Severability.
(a) Should any section, clause, provision, standard, or portion of this Ordinance be adjudged unconstitutional or invalid, unlawful, or unenforceable by a final order of a court of competent jurisdiction, the remainder of this Ordinance shall remain in full force and effect.
(b) If any application of this Ordinance to a particular parcel of land or System or project is adjudged unconstitutional, or invalid by a final order of a court of competent jurisdiction, such judgement shall bot be applicable to any other parcel of land not specifically included in said judgement .unless specifically required by the court.
(2) The provisions of this Ordinance shall be liberally construed in favor of the Town and shall not be construed to limit or repeal any other power now possessed by or granted to the Town
(3) This Ordinance is not intended to repeal, annul or interfere with easements, covenants, deed restrictions or agreements created prior to the effective date of this ordinance.
19.10 EFFECTIVE DATE
(1) Following the passage of the Town Board, this Ordinance shall take effect the day after the date of publication or posting as provided by Wis. Stat. Sec. 60.80.
