Creating a Renewable Energy Opportunity Plan for Southwest Wisconsin

Legal Considerations

Michael Allen

October 21st 2011

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What I Will Cover

• Affected parties and their interests• Legal issues relating to each party• Issues that generate controversy• Potential solutions

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Affected Parties

• Local government• Developers/utilities• Land owners hosting renewable energy

facilities • Neighbors

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Concerns of developers/utilities

1. Seeking proximity to renewable resourcea. Windb. Feedstock

2. Proximity to transportation resource a. Electric transmission lines

b. Railroad/Barge/Highways3. Required investment

a. Land resourcesb. Improvementsc. Cost of entitlements (permits, rezoning, etc.)

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Concerns of host landowner

1. Maximizing the value of renewable energy resource on their land

2. Minimizing adverse impact on remaining land3. Length and reliability of income

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Concerns of neighboring landowners

1. Adverse impacts (Real and Perceived)

a. aesthetics b. property valuec. healthd. noisee. safety

2. Equity considerations a. sharing the wealthb. sharing the adverse impacts

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Concerns of local government1. Enforcing local zoning and building

regulations2. Economic Development/Tax Base3. Balancing preservation of reasonable future

development with preserving opportunities for the existing land owners to make optimal use of their land

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Local government control depends upon local legal infrastructure

1. Some towns have ordinances that address specific renewable energy facilities

a. in these towns, regulations occurs through a conditional use permit or rezoning.

2. Some towns have no zoning ordinances.a. In these towns regulation occurs through a joint development

agreement3. Municipal regulation is still subject to State regulation(e.g., PSCW

and requirements of wind siting regulations*)4. Municipal regulation is still subject to Federal regulation(FAA

regulations, etc.)

* Subject to outcome of administrative rules impasse.

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Typical issues that are addressed by the local municipality

1. When will project begin?2. Setbacks3. Noise4. Impact on local roads5. Construction impact on wells6. Removal after project term7. Payments to municipality for mitigating adverse impact8. Health and safety impacts9. Complaint and dispute resolution

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Issues that can generate controversy

1. Unequal sharing of payments between host landowners and neighboring landowners

2. Noise3. Aesthetics4. Property value5. Perceived health effects

a. shadow flicker b. wind turbine syndrome

6. Odor(for biomass/biofuel)

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Potential solutions

1. Good neighbor payments2. Buffer zones3. Payments to local municipalities for local

impacts (e.g. Road repairs and money to train local first responder personnel in new risks associated with tower rescue)

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Success results when the interests of the affected parties are balanced equitably

• If regulation is overly restrictive, landowners who oppose renewable energy facilities will benefit, but developers and host landowners will be harmed, and the municipality will miss out on economic development opportunities.

• If regulation is too lax, costs that should be incurred by the host landowners or the developers may be borne by the entire community, including persons who receive little or no benefit from the development, and other harms, such as environmental degradation may occur.

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Questions

Michael AllenPhone: 608-837-0111Fax: 808-837-0181Address: 1500 W. Main St. Suite 300

Sun Prairie Wi 53590Email: mallen@energylawwisconsin.com

Website: www.energylawwisconsin.com