The purpose of this article is as follows:

(1)

To encourage wind energy systems and other alternative energy uses within the city in accordance with Wis. Stats. § 66.0401.

(2)

To encourage wind energy systems and other alternative energy uses within the city within the pertinent regulatory provisions of the Federal National Wild and Scenic Rivers Act and the Federal Lower St. Croix River Act, and regulations of the Federal Aviation Authority and in accordance with provisions of the community character ordinance which incorporates Wis. Admin. Code ch. NR 118 throughout affected areas of the city.

(3)

To encourage wind energy systems and other alternative energy uses within the city in a manner that preserves and protects the public health and safety.

(Code 2006, § 17.181(1); Ord. No. 1-19, § 1, 6-24-2019)

(a)

Required. No alternative energy system shall be constructed, installed, reconstructed, substantially repaired, improved, extended, enlarged, relocated, or converted without a conditional use permit (or building permit) as required under this section. The term "wind energy system" (WES) means equipment that converts and then stores or transfers energy from the wind into usable forms of energy. The term "wind turbine" means that mechanical device that captures the kinetic energy of wind and converts it into energy.

(b)

Application/site plan. An application for a conditional use permit under this section shall be made to the zoning administrator. The application shall consist of a letter addressed to the administrator requesting a permit under this section, scaled drawings, and other descriptive information sufficient to enable the administrator to determine whether or not provisions of this section will be satisfied. Additionally, the application shall include the name, address and telephone number of owners of property on which an impermissible interference is alleged to exist. The burden of establishing the existence of an impermissible interference is on the applicant. If the applicant feels that no impermissible interference shall take place the applicant shall sign a waiver of such. The waiver shall state that no impermissible interference is alleged. The signing of the waiver shall be absolute, meaning an applicant cannot later attempt to seek remedy for any impermissible interference which may occur. Waiver of the impermissible interference shall exempt the applicant from impermissible notices and remedies sections of this article. The application shall include a site plan to include, at minimum, the following:

(1)

Physical dimension of the property, existing structures and proposed structures.

(2)

Location of existing and proposed structures.

(3)

Location of electrical lines and facilities.

(4)

Existing topography.

(5)

Proposed elevation of structure and height elevation fully assembled and operating.

(6)

An energy evaluation review as described in subsection (d) of this section.

(7)

Proposed setbacks and site layout.

(8)

Impermissible interference. Evidence that the applicant has negotiated with adjacent property owners and has obtained written agreements with all landowners that could potentially interfere with the applicants access to the sun, wind, or other source of alternative energy, or a signed waiver of such.

(9)

Alternative energy specifications. Specific information on the type of collector to be used, position on the property, expected gain in energy production, impact on the environment and neighbors, for instance in the case of wind generators the type size, height, rotor material, rated power output, performance, safety, and noise characteristics of the proposed wind turbine, tower and foundation.

(10)

Minimal visual intrusion.

a.

Applicants who propose to place an alternative energy system on lands where it is determined that such systems will present a visual intrusion upon the National Scenic St. Croix Riverway shall identify measures proposed to be undertaken in accord with subsection (b)(10)b of this section to minimize such visual intrusion and shall identify potential alternative locations on their property which may be less visually intrusive.

b.

The term "visual intrusion" is defined as that structure which exceeds the height limitations of Wis. Admin. Code ch. NR 118 and which, when fully assembled and in-place, shall be located at such a height as to be above the existing treeline or vegetative cover and which, when fully assembled, shall be visible from the viewshed of the National Scenic St. Croix Riverway and its slope protection zones. The term "viewshed" means the total visibility zone which may be viewed from the St. Croix Riverway within the incorporated areas of the city.

(c)

Impermissible interference. The term "impermissible interference" means the obstruction of access to alternative energy such as the sun or wind or geothermal for which a permit has been granted under this section if such blockage is by any structure or vegetation on property, an owner of which was duly notified under the provisions of this section. Such impermissible interference does not include:

(1)

Blockage by a narrow protrusion, including, but not limited to, a pole or wire, which does not substantially block wind from a WES.

(2)

Blockage by any structure constructed, under construction or for which a building permit has been applied for before the date the last notice is mailed under subsection (e) of this section.

(3)

Blockage by any vegetation planted before the date the last notice is mailed or delivered under subsection (e) of this section.

(d)

Energy evaluation review. The applicant for an alternative energy permit shall submit an energy evaluation review showing that the benefits to the applicant and the public will exceed any burdens, in accordance with Wis. Stats. § 66.0403. The energy evaluation review shall include a manufacturers statement or engineer's study that evaluates the energy that is to be produced by the alternative energy system at the proposed location, the estimated cost of the system, and the expected pay-back period on the investment. A "power production report" shall be supplied that indicates the minimum amount of energy projected to be produced. This report would include the expected pay-back period of the system. For a WES the energy evaluation review would take into account average wind speeds at the proposed location, in accord with the state department of administration, state energy division standards, in determining the amount of energy that is to be produced. Data shall represent average annual wind speeds in miles per hour and calculating the amount of megawatt hours of electricity to be produced at this location annually.

(e)

Notice to adjacent property owners. The zoning administrator shall determine if an application is sufficient and shall notify the applicant of the determination. If an applicant receives notice that an application has been deemed sufficient, the applicant shall deliver, by certified mail or by hand, a notice to the owner of any property which the applicant proposes to be restricted by the permit. The applicant shall, within 15 days of delivery of the last notice, submit to the administrator a copy of a signed receipt for every notice delivered under this subsection. If the applicant feels that no adjacent owner of property will be restricted by the permit, the applicant shall submit a signed statement to that effect, waiving any future claims of such. The waiver shall exempt the applicant from following these provisions. The information on the notice form shall include, without limitation by enumeration:

(1)

The name and address of the applicant and the address of the land upon which the alternative energy system will be located.

(2)

That an application has been filed by the applicant.

(3)

That the conditional use permit, if granted, may affect the rights of the notified owner to develop his property and to plant vegetation.

(4)

The telephone number, address and office hours of the zoning administrator.

(f)

Fee. An application for a conditional use permit under this section shall not be accepted unless accompanied by a non-refundable fee of $350.00 to cover costs of processing the application, including hearing notices, mailings, or energy evaluation studies and verification.

(g)

Hearing. Within 60 days after last notice under section 40-818 is delivered, or 45 days after receipt of an application with a signed waiver alleging no impermissible interference, the plan commission shall conduct a hearing on the application. At least 30 days prior to the hearing date, the city shall notify the applicant and all owners noticed of an impermissible interference of the time and place of the hearing. The hearing shall comply with all notice provisions for conditional uses.

(Code 2006, § 17.181(2); Ord. No. 1-19, § 1, 6-24-2019)

(a)

The plan commission shall recommend to the council the granting of a conditional use permit if the commission determines that:

(1)

The requirements of this section are met.

(2)

The granting of a conditional use permit shall not unreasonably interfere with the orderly land use and development plans of the city, specifically as such plans are described in this Code, the city comprehensive plan, city zoning and the city community character ordinance, and in accord with the standards and intent of Wis. Admin. Code ch. NR 118 and the Wild and Scenic Rivers Act as applied and expanded by the city.

(3)

No person has demonstrated that she or he has present plans to build a structure that would create an impermissible interference by showing that he has applied for a building permit prior to receipt of a notice under section 40-815(e), has expended at least $500.00 on planning or design of such a structure or by submitting any other credible evidence that she or he has made substantial progress toward planning or constructing a structure that would create an impermissible interference.

(4)

The benefits to the applicant and the public will exceed any burdens. This determination shall be based on the energy evaluation review and a determination as to the burdens to the city or general population the installation of such system may impose as contrasted with the benefits to the applicant and the public.

(5)

More appropriate alternative locations could not be found or determined where such alternative locations do not significantly increase the cost of the system or significantly decrease its efficiency.

(6)

An alternative system of comparable cost or efficiency which would best meet the city's land use and development plans could not be identified.

(7)

The proposed structure is not detrimental to the public health and safety of the community.

(8)

The proposed use complies with all aspects of this Code.

(b)

The common council may grant a conditional use permit subject to any condition or exemption the plan commission deems necessary to minimize the possibility that the future development of nearby property will create an impermissible interference or to minimize any other burden on any person affected by granting the permit. Such conditions or exemptions may include, but are not limited to, restrictions on location of alternative energy systems and requirements for the compensation of persons affected by the granting of the conditional use permit.

(c)

A conditional use permit holder for alternative energy systems shall not exercise any of the privileges and rights granted under said permit until and unless the financial assurances (i.e., performance bond, completion bond or other absolute guaranty) described in section 40-829 are in full force and effect and until and unless the plan commission recommendation has been approved and endorsed by the common council.

(d)

The common council shall consider the plan commission recommendation at its next regularly scheduled meeting. The council may grant the recommendation or refer the matter back to the commission for clarification.

(Code 2006, § 17.181(3); Ord. No. 1-19, § 1, 6-24-2019)

If the plan commission recommends approval of a conditional use permit and approval is granted by the common council:

(1)

The plan commission, in its recommendation, shall specify the property restricted by the conditional use permit under the impermissible interference provisions and shall prepare notice of the granting of the permit. The notice shall include the identification required under Wis. Stats. § 706.05(2) for the owner of the property upon which the alternative energy system is or will be located, and for any owner and property restricted by the conditional use permit, and shall indicate that the property may not be developed and vegetation may not be planted on the property so as to create an impermissible interference with the alternative energy system which is the subject of the permit unless the permit affecting the property is terminated or unless an agreement affecting the property is filed.

(2)

The applicant shall record with the count register of deeds the notice under subsection (1) of this section for each property specified under subsection (1) of this section for the property upon which the WES is or will be located.

(Code 2006, § 17.181(4); Ord. No. 1-19, § 1, 6-24-2019)

(a)

Any person who uses property which he or she owns or permits any other person to use the property in a way which creates an impermissible interference under a conditional access permit which has been granted or which is the subject of an application shall be liable to the permit holder or applicant for damages, except as provided under subsection (b) of this section, for any loss due to the impermissible interference, court costs and reasonable attorney fees unless:

(1)

The building permit was applied for prior to receipt of a notice to restrict such interference or the plan commission determines not to grant a permit after a hearing under section 40-815(e).

(2)

A permit affecting the property is terminated under section 40-819.

(3)

An agreement affecting the property has been filed.

(b)

A permit holder is entitled to an injunction to require the trimming of any vegetation which creates or would create an impermissible interference. If the court finds on behalf of the permit holder, the permit holder shall be entitled to a permanent injunction, damages, court costs and reasonable attorney fees.

(c)

The onus to proceed and the burden of proving the existence of an impermissible interference rests with the permit holder.

(Code 2006, § 17.181(5); Ord. No. 1-19, § 1, 6-24-2019)

(a)

Any right protected by a permit under this section shall terminate if the plan commission and/or common council determines that the alternative energy system which is subject of the permit is:

(1)

Permanently removed or is not used for two consecutive years, excluding time spent on repairs or improvements.

(2)

Not installed and functioning within two years after the date of issuance of the permit.

(3)

Fails to produce annually the minimum amount of energy projected as part of the energy evaluation review as submitted at the time the permit is granted.

(b)

The plan commission shall give the permit holder written notice and an opportunity for a hearing on a proposed termination under subsection (a) of this section.

(c)

If the plan commission terminates a permit, the commission may charge the permit holder for the cost of recording and record a notice of termination with the county register of deeds.

(Code 2006, § 17.181(6); Ord. No. 1-19, § 1, 6-24-2019)

A permit holder by written agreement may waive all or a part of any right protected by a permit. A copy of such agreement shall be recorded with the county register of deeds.

(Code 2006, § 17.181(7); Ord. No. 1-19, § 1, 6-24-2019)

The transfer of title to any property shall not change the rights and duties under this article.

(Code 2006, § 17.181(8); Ord. No. 1-19, § 1, 6-24-2019)

This article shall be construed to mean that the public safety is not preserved or protected unless an owner obtains a conditional use permit prior to installing, operating or maintaining an alternative energy system. The owner is also responsible for obtaining any county or other jurisdictional permits that may apply.

(Code 2006, § 17.181(9); Ord. No. 1-19, § 1, 6-24-2019)

Alternative energy systems within the viewshed of the St. Croix National Scenic Riverway, where such proposed systems is determined, by a city authorized viewshed analysis, to be visually intrusive and stand in contrast to the intent of the Wild and Scenic Riverway and Wis. Admin. Code ch. NR 118 as applied by the city, and thus impede the established orderly land use and development plan of the community, as especially identified in the city comprehensive plan and community character ordinance, shall be restricted where one of the following criteria is established:

(1)

The plan commission determines that an alternative location exists, either on or off the applicant's property, which is less visually intrusive and which, by locating the system at this alternative location, does not significantly increase the cost of the system or significantly decrease its efficiency;

(2)

An alternative energy system less visually intrusive can be placed at the same or alternate location provided such system, based in part on the energy evaluation review, is of comparable cost and efficiency. This alternative energy system shall be one that does not adversely impact upon the viewshed of the St. Croix National scenic riverway;

(3)

The city provides an alternative location for the placement of the alternative energy system in an area designated for such uses, provided the alternative location provides energy at sufficient cost and efficiency. Under this provision, the city shall work with the applicant and the local energy company to arrange for an energy exchange credit to the applicant. The intent of designated alternative energy system areas is to consolidate alternative energy systems within or away from the viewshed to minimize negative visual impacts. The city shall provide an easement to the applicant, provided the applicant pays costs associated with other provisions of this section to ensure the public health and safety. Certain provisions can be waived by the plan commission in order to consolidate such uses in a designated and controlled area;

(4)

The city determines that placement of the structure impedes the orderly development plan of the city by violating provisions established to protect the intent of the wild and scenic riverway as applied by the city and that violating such intent does place a burden upon the community and its orderly land use and development plans in a manner that exceeds any benefit to the applicant that the granting of a permit would provide.

(Code 2006, § 17.181(10); Ord. No. 1-19, § 1, 6-24-2019)

Applicants within the viewshed of the scenic St. Croix Riverway, as applied by the city in accordance with Wis. Admin. Code ch. NR 118, shall be required, as part of the permit, to submit a plan identifying any cooperative efforts to minimize the visual intrusion of the alternative energy system. The plan commission may allow for alternative energy systems within the viewshed of the national scenic St. Croix Riverway if the applicant works to undertake certain agreeable measures to ensure minimal visual intrusion. Such measures may include helical or other blade assemblies that minimize the blade intrusion of WES on the skyline, locating the system at a less intrusive location where appropriate, or a combination of like or similar measures. The plan commission may require, as part of the permit for those applicants within the viewshed of the scenic St. Croix Riverway, to adopt minimal visual intrusion measures, or to place such structures at available alternative and less visually intrusive locations, unless the applicant can demonstrate that such measures significantly increase the cost of the system or significantly decreases its efficiency. The intent of this section is to encourage cooperative efforts to minimize visual intrusion within the viewshed of the St. Croix Riverway.

(Code 2006, § 17.181(11); Ord. No. 1-19, § 1, 6-24-2019)

In order to encourage forms of renewable energy, the city shall establish a designated alternative energy systems area, namely an approximate 1.2 acre parcel designated as Outlot 1, CSM 4165 in the city industrial park. Conflicting provisions of this article shall be waived to accommodate and encourage alternative energy uses at this location. The city shall also review other lots and city-owned land to determine the appropriateness of WES systems. This site is available only to the extent that systems can be designed or constructed in a manner that has a minimal visual impact upon the viewshed of the St. Croix Riverway. The intent of this provision is to allow for alternative energy systems for those homeowners unable to build such systems on their property due to an inability to meet setback or other standards of this article.

(Code 2006, § 17.181(12); Ord. No. 1-19, § 1, 6-24-2019)

These requirements are in place to protect the public health and safety from alternative energy systems, ensure protection against ice flown from WES blades during certain weather conditions, protection of adjacent property owners from noise or other reverberations that may be associated with the operation of the WES, protection against interference in the orderly land use and development plans of the city, to ensure federal regulatory standards associated with the Wild and Scenic Rivers Act are adhered to and incorporated, and to minimize the impact of impermissible restrictions, now or in the future, and to ensure the orderly development plans of the city are administered in accordance with zoning and comprehensive land use plans and studies.

(1)

Setbacks. Wind energy systems shall meet the following spacing and other requirements:

a.

Distance from existing on- or off-site residences, businesses and public buildings (i.e., the height of the tower plus the length of the blade, or 150 feet, whichever is greater).

b.

Distance from centerline of public roads (i.e., the height of the tower plus the length of the blade measured from the ground surface when in a full vertical position, or 150 feet, whichever is greater).

c.

Distance from any property lines (i.e., the height of the tower plus the length of the blade measured from the ground surface when in a fully vertical position, or 150 feet, whichever is greater).

(2)

Noise. All alternative energy systems shall comply with chapter 14, article II regulating loud and unnecessary noise.

(3)

Compliance with the Federal Aviation Authority (FAA). It shall be the responsibility of the applicant to complete the proper FAA applications and obtain the proper permits for the WES project. It shall also be the responsibility of the applicant to obtain a determination of no significant impact to air navigation from the FAA. Such FAA determination must be submitted to the zoning administrator prior to issuance of a conditional use permit.

(4)

Color. Applicants who propose alternative energy systems in areas on the bluff slope of the St. Croix Scenic Riverway, where alternative locations or systems cannot be established, and where it is determined by a city viewshed analysis that such a system would impact the viewshed of the scenic river corridor, shall be required to take measures to paint the equipment a light blue, light gray or light green to minimize adverse visual impacts, unless the applicant can demonstrate that such a requirement would significantly increase the cost of the system or significantly decrease its efficiency.

(5)

Electrical wires. All electrical transmission wires associated with WES shall adhere to section 34-648.

(6)

Exterior surface; color and finish. The exterior surface of alternative energy systems shall be uniform in color; the finish of the exterior surface shall be non-reflective and non-gloss.

(7)

Height. The minimum height of blade tips, measured from the ground surface when a blade is in fully vertical position, shall be 25 feet. The city community character ordinance, other land use zoning provisions and directives of Wis. Admin. Code ch. NR 118 limit structure height to 40 feet. In accordance with Wis. Stats. § 66.0401, the city shall allow for WES to violate this height restriction where such violation does not unreasonably interfere with the orderly development plans of the city, as defined in the comprehensive plan, community character ordinance or other established plans of the city.

(8)

Lighting. All exterior lighting, except where required for aircraft safety, and for security, shall be prohibited.

(9)

Buildings and outdoor storage. All service and maintenance buildings associated with an alternative energy system shall be located under or adjacent to the equipment being serviced. Likewise, all outdoor storage shall be so located.

(10)

Signs. No alternative energy system shall be used to advertise or promote the sale of any product. No words or graphic representations on any wind turbine shall be visible from any public road.

(Code 2006, § 17.181(13); Ord. No. 1-19, § 1, 6-24-2019)

In order to encourage alternative energy systems, the city shall enact the following provisions to allow for and encourage such energy uses where the applicant cannot meet the health and safety, setback or other requirements of this article:

(1)

The provisions of section 40-825 establishing designated areas for alternative energy systems shall be made available to all city residents, provided sufficient land for such purposes is available and provided such can be designed in a manner that does not have an adverse visual impact on the viewshed of the St. Croix Riverway, and on a first-come basis.

(2)

The city shall make available the roofs of all city-owned buildings and other appropriate city structures for the placement of solar panels or other appropriate alternative energy uses, with the benefit of such going to the applicant, provided the applicant pays for a structural determination, an easement regulating its construction is secured, and an agreement on the use and maintenance of space can be negotiated. Any costs associated with the placement and maintenance of such structures shall be borne by the applicant.

(Code 2006, § 17.181(14); Ord. No. 1-19, § 1, 6-24-2019)

Any alternative energy system which does not produce energy for two years, excluding time spent on repairs or improvements, or fails to maintain minimum power output, shall be considered as having ceased operation. Within six months of the permit holder being notified that a system is considered to have ceased operation, system shall be removed from the property and the property cleaned up as herein required:

(1)

All aboveground improvements shall be removed from the property.

(2)

All items in outdoor storage shall be removed from the property.

(3)

All building foundations, tower pads, and buried electrical improvements shall be removed to a depth of four feet below the ground surface. All excavated areas shall be filled in and made level with the ground surface surrounding the excavated area with unconsolidated soil material, at least the top four inches of which shall be topsoil.

(4)

Any hazardous material, either in containers or spilled upon or in the ground, shall be removed and disposed of in a manner prescribed by applicable state and federal law.

(Code 2006, § 17.181(15); Ord. No. 1-19, § 1, 6-24-2019)

As a condition precedent to granting of a conditional use permit and to ensure full performance of the requirements of this article, the applicant shall provide a performance bond, completion bond, or other absolute guaranty of performance. Any such bond shall carry a penalty of not less than $3,000.00 per alternative energy system and shall be conditioned on the faithful performance of the requirements of the conditional use permit. Applicant shall submit to the zoning administrator evidence that such performance bond, completion bond, or other absolute guaranty is in full force and effect.

(Code 2006, § 17.181(16); Ord. No. 1-19, § 1, 6-24-2019)

The plan commission may require an alternative energy system within the viewshed of the scenic St. Croix Riverway to submit, within 30 days after each second anniversary of the granting of a conditional use permit, written certification of compliance with provisions of the permit to include a power production report in kilowatt hours and proof of continuance of the financial assurance provisions.

(Code 2006, § 17.181(17); Ord. No. 1-19, § 1, 6-24-2019)

It shall be unlawful to construct, install, reconstruct, substantially repair, improve, extend, enlarge, relocate, or convert any WES in violation of the provisions of this section. It shall also be unlawful to fail to obtain wind access permits as required by this section or to fail to comply with any condition of the wind access permit as may be imposed by the board of zoning appeals or the common council.

(Code 2006, § 17.181(18); Ord. No. 1-19, § 1, 6-24-2019)

The city may enforce this article by any lawful enforcement method it deems to be appropriate and necessary.

(Code 2006, § 17.181(19); Ord. No. 1-19, § 1, 6-24-2019)

Any person, firm, association, corporation, or representative agent who fails to comply with the provisions of this article shall, upon conviction thereof, forfeit not less than $500.00 nor more than $10,000.00 for each day of continued violation. The city shall also be entitled to other relief including a temporary or permanent injunction, costs and reasonable attorney fees.

(Code 2006, § 17.181(20); Ord. No. 1-19, § 1, 6-24-2019)