Rietbrock ordinance rejected

By Kevin O’Brien

Following the advice of the county’s attorney, the Marathon County Environmental Resources Committee on Tuesday voted not to advance an ordinance adopted by the town of Rietbrock for regulating industrial wind operations.

ERC chairman Jacob Langenhahn said the committee’s decision was based on a question of process and not about the merits of the underlying policy. Langenhahn said he agrees with those who say the state is long overdue in updating its wind power restrictions, but state law is clear that local governments cannot set stricter rules.

“It is a shame that the state has put us in a position like this,” he said. “It’s very unfortunate, but that still does not take away our responsibility to uphold the state laws as they are written. I think the laws need to change, but we have to uphold those laws as they are currently written.”

Corporation counsel Michael Puerner told the committee that, based on his review of the state statutes and advice from an attorney representing the Wisconsin Counties Association, he believes Rietbrock is “exceeding its legal authority to enact that ordinance.”

In offering his advice, Puerner cited Stat. 66.0401(1m), which says: “No political subdivision may place any restriction, either directly or in effect, on the installation or use of a wind energy system that is more restrictive than the rules promulgated by the commission (Public Service Commission).”

Puerner said the county could potentially face legal liability if it signed off on a town ordinance that was later challenged in court.

Supervisor Tim Sondelski, however, questioned whether the town and the county could pass stricter regulations than the state under 66.0401(1m)(a), which allows for restrictions that “preserve or protect the public health or safety.”

“As county board supervisors, we have a

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duty and a responsibility to protect the safety and health of the citizens we serve here in Marathon County,” he said.

Sondelski said industrial wind operations have many “devastating” health impacts on residents, citing the example of a man who spoke to the committee last year about suffering from migraines and insomnia due to the sound of the turbine next to his home.

In response, Puerner said his reading of the statute makes it clear that the health and safety exemption is separate from the prohibition against local units of government passing more restrictive rules than those in PSC 128 (the administrative code that applies to all large wind operations statewide.)

“If there is a specific requirement under PSC 128 — for instance, distance, shadow flicker, those type of things — there is no authority to exceed those regulations,” he said. “In effect, that’s what portions of this town ordinance accomplishes.”

Langenhahn agreed with Puerner’s interpretation of the statute, saying the first part of the statute stands on its own to block towns and counties from adopting ordinances that are more restrictive than the state.

Supervisor Allen Drabek asked if the committee could take some other action besides recommending approval of the ordinance to the full board or declining to do so, but Puerner said he doesn’t see “any way around” an up-or-down vote on the ordinance. Drabek voted against the motion to not recommend the ordinance to the full board.

Rietbrock is one of more than a dozen townships on the western side of the county that have adopted ordinances restricting wind operations beyond what the state does, but Rietbrock was the first to adopt a zoning amendment that required county approval.

During public comment, Rietbrock town chairman Lyonel Wisnewski urged the committee to vote in favor of his town’s ordinance and suggested that it could be used as a “template” for a countywide ordinance.

Wisnewski noted that wind turbines have grown in height from 75 feet to over 600 and are now emitting more noise and energy than when the state updated its regulations.

“We do not believe it is safe. We do not believe it is economically viable without federal subsidies, which are ongoing,” he said. “We do not believe it is in the best interest of the public health and safety of our residents, our domesticated animals, the wildlife... nor in the preservation of prime agricultural farmland in our community.”