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Published: July 30, 2009
Authors:
Robert Procter and
Charles (Buck) Sweeney
written with Patrick J. Farley
The Ecker Brothers sued Calumet County when the County passed an ordinance essentially banning all wind energy systems. The Ecker Brothers claimed that such a blanket ban contravenes Wis. Stat. §60.0401 (2007-8), and the Wisconsin Court of Appeals agreed. In Ecker Bros. v. Calumet County, No. 2007AP2109, 2009 WL 2032336 (Wis. App. July 15, 2009), the Court of Appeals interpreted the Wisconsin Statutes to say that the Wisconsin legislature favors alternative energy systems, and that localities may enforce established policy, but may not create a contrary policy of their own. The Court of Appeals then struck down the County ordinance as ultra vires.
The Ecker Brothers are farmers who were seeking to expand their wind energy output by supplementing their one wind turbine with additional wind turbines. In order to get funding for the expansion, they needed an acknowledgement letter from Calumet County, which the County refused to grant. Instead, the County passed an ordinance restricting wind energy systems uniformly, based on whether the system was classified as large or small. The Ecker Brothers brought a facial challenge to the ordinance claiming the County had exceeded its authority under Wis. Stat. §60.0401.
The County argued that the Ecker Brothers had not given the County proper notice under Wis. Stat. §893.80. The trial court agreed and dismissed the case. On appeal, the Court of Appeals found that although the Ecker Brothers had not provided proper written notice under §893.80, the County had actual notice, which satisfied the statute.
Getting to the substance of the dispute, the Court of Appeals noted that Wis. Stat. §60.0401 expressly forbids localities from regulating solar and wind energy systems apart from three specific exceptions. Calumet County argued that as long as its regulations fell under one of the three exceptions, the County was permitted to regulate as it desired. The Court of Appeals disagreed with the notion that simply because the statute contemplates exceptions, localities are free to find their own legislative facts and set their own policies contrary to the purpose of the statute.
The Court of Appeals noted that whatever powers counties have to govern is given to them by the legislature and that powers of an administrative nature do not allow counties to set policy. Instead, the County must rely upon the facts of each individual situation and must regulate on a case-by-case basis. The County’s ordinance prohibiting wind turbines without individualized review was outside of the County’s power and properly struck down as ultra vires.
Charles V. (Buck) Sweeney is a partner at Axley Brynelson, practicing primarily in the areas of environmental law and construction law. Robert C. Procter is a partner in the firm, representing businesses in various matters including contracts, construction law and real estate. For more information on Wisconsin alternative energy systems, please contact Mr. Sweeney at 608.283.6743 or csweeney@axley.com or Mr. Procter at 608.283.6762 or rprocter@axley.com.
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