Wind Energy System Siting Ordinance

1.01 PURPOSE AND INTENT

It is the intended purpose of the Town of Smelser to regulate Wind Energy Systems to promote

the health, safety, and general welfare of the citizens of the Town and to establish reasonable and

uniform regulations for the operation thereof so as to minimize potentially dangerous effects of

Wind Energy Systems on the community.

1.02 JURISDICTION

Jurisdiction of these regulations shall include all lands within the Town of Smelser.

1.03 AUTHORITY

These regulations are adopted under the general police powers authority granted pursuant to s.

60.10(2)(c), 60.22(3), and 60.34(1) of the Wisconsin Statutes. These regulations conform to the

specific authority granted pursuant to sec. 66.0401 of the Wisconsin Statutes.

1.04 DEFINITIONS

The following terms have the meanings indicated:

(a) Ambient Sound. Ambient noise encompasses all sound present in a given environment,

being usually a composite of sounds from many sources near and far. It includes

intermittent noise events, such as, from aircrafts flying over, dogs barking, wind gusts,

mobile farm or construction machinery, and the occasional vehicle traveling along a

nearby road. The ambient also includes insect and other nearby sounds from birds and

animals or people. The nearby and transient events are all part of the ambient sound

environment but are not to be considered part of the background sound. If present, a

different time or location should be selected for determining the L90 background sound

levels.

(b) Applicant means the individual or business entity that seeks to secure a license under this

Ordinance.

reflect the response of the human ear, which does not respond equally to all frequencies.

It is used to describe sound in a manner representative of the human ear's response. It

reduces the effects of the low with respect to the frequencies centered around 1000 Hz.

The resultant sound level is said to be A-weighted and the units are dBA. Sound level

meters have an A-weighting network for measuring A-weighted sound levels (dBA)

meeting the characteristics and weighting specified in ANSI Specifications for

Integrating Averaging Sound Level Meters, S1.43-1997 for Type 1 instruments and be

capable of accurate readings (corrections for internal noise and microphone response

permitted) at 20 dBA or lower.

(d) Background Sound (L90) refers to the sounds that would normally be present at least

90% of the time. Background sounds are those heard during lulls in the ambient sound

environment. That is, when transient sounds from flora, fauna, and wind are not present.

Background sound levels vary during different times of the day and night. Because a

WES operates 2417, the background sound levels of interest are those during the quieter

periods which are often the evening and night. Sounds from nearby birds and animals or

people must be excluded from the background sound test data.

(e) Background sound level (dBA and dBC (as L90» is the sound level present for at least

90% of the time during a period of observation that is representative of the quiet time for

the soundscape under evaluation and with duration of ten continuous minutes. Several

contiguous ten minute tests may be performed in one hour to determine the statistical

stability of the sound environment. Longer term tests, such as 24 hours or multiple days

are not appropriate since the purpose is to define the quiet time background sound level.

It is defined by the L90A and L90C descriptors. It may be considered to be the quietest

one minute during a ten minute test. L90A results are valid only when L 1 OA results are

no more than 10 dBA above L90A for the same time period. LI0C less L90C should not

exceed 15 dBC to be valid.

Measurement periods such as at dusk when bird and insect activity is high or the early

morning hours when the 'dawn chorus' is present are not acceptable measurement times.

Further, background L90 sound levels documenting the pre-construction baseline

conditions should be determined when the ten minute average wind speed is 2 meters per

second (4.5 mph) or less at the ground level/microphone location.

(f) Blade Passage Frequency (BPF) means the frequency at which the blades of a turbine

pass a particular point during each revolution (e.g. lowest point or highest point in

rotation) in terms of events per second. A three bladed turbine rotating at 28 rpm would

have a BPF of 1.4 Hz. [E.g. «3 blades times 28rpm)/60 seconds per minute = 1.4 Hz

BPF)]

(g) C-Weighted Sound Level (dBC). Similar in concept to the A-Weighted sound Level

(dBA) but C-weighting does not de-emphasize the frequencies below 1k Hz as

A-weighting does. It is used for measurements that must include the contribution of low

frequencies in a single number representing the entire frequency spectrum. Sound level

meters have a C-weighting network for measuring C-weighted sound levels (dBC)

meeting the characteristics and weighting specified in ANSI S1.43-1997 Specifications

for Integrating Averaging Sound Level Meters for Type 1 instruments.

(h) Decibel (dB). A dimensionless unit which denotes the ratio between two quantities that

are proportional to power, energy or intensity. One of these quantities is a designated

reference by which all other quantities of identical units are divided. The sound pressure

level (Lp) in decibels is equal to 10 times the logarithm (to the base 10) of the ratio

between the pressure squared divided by the reference pressure squared. The reference

pressure used in acoustics is 20 MicroPascals.

(i) Frequency. The number of oscillations or cycles per unit of time. Acoustical frequency is

usually expressed in units of Hertz (Hz) where one Hz is equal to one cycle per second.

G) Good Utility Practice. Means any of the practices, methods and acts with respect to the

safe operation of a WESF engaged in or approved by a significant portion of the electric

utility industry and, in particular, those portions of the industry with experience in the

construction, operation and maintenance of wind turbines during the relevant time period;

or any of the practices, methods and acts which, in the exercise of reasonable judgment in

light of the facts known at the time the decision is made, could be expected to accomplish

the desired result at a reasonable cost consistent with good business practices, reliability

and safety. Good Utility Practice is not intended to be limited to the optimum practice,

method or act to the exclusion of all others, but rather to be acceptable practices, methods

or acts generally accepted in the region.

(k) Health means a state of complete physical and mental well being, not merely the absence

of disease or infirmity.

(1) Height means the total distance measured from the grade of the property as existed prior

to the construction of the wind energy system, facility, tower, turbine, or related facility

at the base to its highest point.

(m) Hertz (Hz). Frequency of sound expressed by cycles per second.

(n) Impulsive Sound refers to short-term acoustical impulses typically lasting less than one

second each. It may be the only sound emitted from a noise source or it may be a

component of a more complex sound. For evaluation of wind turbines, impulsive sound

includes swishing or thumping sounds.

(0) INCE means Institute of Noise Control Engineers. The Institute of Noise Control

Engineering of the USA ("INCEIUSA") is a non-profit professional organization

incorporated in Washington, DC. A primary purpose of the INCEIUSA is to promote

engineering solutions to environmental, product, machinery, industrial and other noise

problems. INCEIUSA is a Member of the Society of the International Institute of Noise

Control Engineering, an international consortium of organizations with interest in

acoustics and noise control.

(P) Measurement Point (MP) means location where sound and/or vibration measurements are

taken such that no significant obstruction blocks sound and vibration from the site. The

Measurement Point should be located so as to not be near large objects such as buildings

and in the line-of-sight to the nearest turbines. Proximity to large buildings or other

structures should be twice the largest dimension of the structure, if possible.

(q) Measurement of Wind Speed. For measurements conducted to establish the background

sound pressure levels (dBA, dBC, L90 10 min, and etc.) the wind speed at the

microphone's Measurement Point shall average 2 mls (4.5 mph) or less for valid

background measurements. For valid measurements conducted to establish the postconstruction

sound level the wind speed at the microphone's Measurement Point shall not

exceed 4 mls (9 mph) average and the wind speed at the WES blade height shall be at or

above the nominal rated wind speed. For purposes of enforcement, the wind speed and

direction at the WES blade height shall be selected to reproduce the conditions leading to

the enforcement action while also restricting wind speeds at the microphone to 4 mls

(9 mph).

For purposes of models used to predict the sound levels and sound pressure levels of the

WES to be submitted with the Application, the Wind Speed shall be the speed that will

result in the worst-case dBA and dBC sound levels in the community adjacent the nearest

WES. For the purpose of constructing the model the wind direction shall consider the

dominant wind direction for the seasons from the late spring to early fall. If other wind

directions may cause levels to exceed those of the predominant wind direction at nearby

sensitive receptors, these levels and conditions shall be included in the Application.

(r) Noise means any unwanted sound. Not all noise needs to be excessively loud to represent

an annoyance or interference.

(s) Non-Participating Parcel means a parcel of real estate that is neither a Project Parcel nor a

Participating Parcel.

(t) Occupied Structure means a building in which people live, work or frequent.

(u) Participating Parcel means a parcel of real estate that is not a Project Parcel, but is subject

to an agreement between the owner and applicant allowing the construction of all or part

of a WESF closer to a Participating Parcel property line or structure on the Participating

Parcel than would be permitted under this Ordinance in the absence of such an

agreement. To qualify as a Participating Parcel, the agreement between the owner and

the applicant must be approved by the Town Board under this Ordinance.

(v) Project Boundary means the boundaries of the WESF as shown on the site plan submitted

to and approved by the Town in accordance with this Ordinance.

(w) Project Parcel or Project Parcels means the parcel or parcels of real estate on which all or

any part of a WESF will be constructed.

(x) Property Line means the recognized and mapped property parcel boundary line.

(y) Qualified Independent Acoustical Consultant. Qualifications for persons conducting

baseline and other measurements and reviews related to the application for a WES or for

enforcement actions against an operating WES include, at a minimum, demonstration of

competence in the specialty of community noise testing and Full Membership in the

Institute of Noise Control Engineers (INCE). Certifications such as Professional Engineer

(P.E.) do not test for competence in acoustical principles and measurement and are thus

not, without further qualification, appropriate for work under this Ordinance. The

Independent Qualified Acoustical Consultant can have no direct or indirect financial or

other relationship to an Applicant.

(z) Sensitive Receptor means places or structures intended for human habitation, whether

inhabited or not, public parks, state and federal wildlife areas, the manicured areas of

recreational establishments designed for public use, including but not limited to golf

courses, camp grounds and other nonagricultural state or federal licensed businesses.

These areas are more likely to be sensitive to the exposure of the noise, vibration, shadow

or flicker, etc. generated by a WES or WESF. These areas include, but are not limited to:

schools, daycare centers, elder care facilities, hospitals, places of seated assemblage, nonagricultural

businesses and residences.

(aa) Sound. A fluctuation of air pressure which is propagated as a wave through air

(bb) Sound Power. The total sound energy radiated by a source per unit time. The unit of

measurement is the watt. Abbreviated as Lw. This information is determined for the WES

manufacturer under laboratory conditions specified by IEC 61400-11 and provided to the

local developer for use in computer model construction. It cannot be assumed that these

values represent the highest sound output for any operating condition. They reflect the

operating conditions required to meet the IEC 61400-11 requirements. The lowest

frequency is 50 Hz for acoustic power (Lw) requirement in IEC 61400-11. This

Ordinance requires wind turbine certified acoustic power (Lw) levels at rated load for the

total frequency range from 6.3 Hz to 10k Hz in one-third octave frequency bands

tabulated to the nearest 0.1 dB. The frequency range of 6.3 Hz to 10k Hz shall be used

throughout this Ordinance for all sound level modeling, measuring and reporting.

(cc) Sound Pressure. The instantaneous difference between the actual pressure produced by a

sound wave and the average or barometric pressure at a given point in space.

(dd) Sound Pressure Level (SPL). 20 times the logarithm, to the base 10, of the ratio of the

pressure of the sound measured to the reference pressure, which is 20 micronewtons per

square meter. In equation form, sound pressure level in units of decibels is expressed as

SPL (dB) = 20 log p/pr.

(ee) Spectrum. The description of a sound wave's resolution into its components of frequency

and amplitude. The WES manufacturer is required to supply a one-third octave band

frequency spectrum of the wind turbine sound emission at 90% of rated power. The

published sound spectrum is often presented as A-weighted values. This information is

used to project the wind farm sound levels at all locations of interest. Confirmation of the

projected sound spectrum can be determined with a small portable one-third octave band

frequency (spectrum) analyzer. The frequency range of interest for wind turbine noise is

approximately 10Hz to 10k Hz.

(ft) Statistical Noise Levels. Sounds that vary in level over time, such as road traffic noise

and most community noise, are commonly described in terms of the statistical

exceedance levels LAN, where LAN is the A-weighted sound pressure level exceeded for

N% of a given measurement period. For example, LlO is the noise level exceeded for

10% of the time. Of particular relevance, are: LAlO and LClO the noise level exceed for

10% of the ten minute interval. This is commonly referred to as the average maximum

noise level. LA90 and LC90 the noise level exceeded for 90% of the ten (10) minute

sample period. The L90 noise level is described as the average minimum background

sound level (in the absence of the source under consideration), or simply the background

level. Leq is the frequency-weighted equivalent noise level (basically the average noise

level). It is defined as the steady sound level that contains the same amount of acoustical

energy as the corresponding time-varying sound.

(gg) Town. The Town of Smelser

(hh) Town Board. The Town of Smelser Board of Supervisors.

(ii) Town Clerk. The clerk of the Town of Smelser.

OJ) Wind Energy Systems (WES) means equipment that converts and then transfers energy

from the wind into usable forms of energy on a large, industrial scale for commercial or

utility purposes. Small scale wind systems of less than 170 feet in height with a 60-foot

rotor diameter and a nameplate capacity of less than 100 kilowatts are exempt from this

definition and the provisions of this Ordinance.

(kk) Wind Energy Systems Facility or Facility or WESF means all of the land and equipment

used by the Wind Energy System and its support facilities including the wind turbine,

tower, access roads, control facilities, meteorological towers, maintenance and all power

collection and transmission systems.

(11) Wind Energy Systems Facility License or WESF License means a license to construct

and operate a Wind Energy System issued by the Town of Smelser in accordance with

this Ordinance.

(mm) Wind Turbine or Turbine (WTi) means a mechanical device which captures the kinetic

energy of the wind and converts it into electricity. The primary components of a wind

turbine are the blade assembly, electrical generator and tower.

1.05 LICENSE REQUIRED FOR WIND ENERGY SYSTEM

No Wind Energy System under 100 MW shall be constructed or operated in the Town without

first obtaining a WES License in accordance with this Ordinance.

1.06 APPLICATION PROCEDURE FOR WIND ENERGY SYSTEM LICENSE

(a) Applications for a WES License shall be submitted to the Town Clerk. The application

shall include a completed application form as provided by the Town Clerk, and shall

include all of the information, documents, plans, deposits and other things required to be

submitted with an application under section 1.07, payment required by section 1.09(a),

and a preliminary cost reimbursement agreement pursuant to section 1.09(b).

(b) The Town Board shall, with assistance from such staff, consultants, committees or

commissions as it deems appropriate, determine whether the application is complete and

contains all of the materials, information, agreements, deposits and payments required to

be submitted with an application under sections 1.07 and 1.09. If an application is not

complete, the applicant shall be so advised, and no further action shall be taken by the

Town until a complete application is received.

determine whether the application meets all requirements of this Ordinance. In

determining whether the application meets the requirements of this Ordinance, the Town

Board may obtain assistance from such staff and consultants as it deems appropriate. The

Town Board shall process the application as soon as reasonable and feasible, given the

complexity of the application, other business facing the Town, staff and other resources,

questions that arise during the review process, and other matters affecting the time

needed to complete the review process.

(d) If an application is complete and meets all requirements of this Ordinance, and the

applicant has paid all fees and costs pursuant to section 1.09 of this Ordinance, the Town

Board shall approve a WES License for the WESF, subject to the execution of a WESF

licensing agreement pursuant to this Section. If an application does not meet all

requirements of this Ordinance or the applicant has not paid all fees and costs pursuant to

section 1.09, the Town Board may deny the application or approve the application with

conditions that will assure compliance with this Ordinance. If an application is approved

with conditions, a WES License for the WESF shall be issued when all conditions of

approval have been satisfied.

(e) The Town Board shall require an applicant to enter into a WESF licensing agreement

with the Town as a condition of approving a WESF License. The WESF licensing

agreement shall include all provisions deemed appropriate by the Town to assure that the

WESF is constructed and operated, and that all fees, costs and sureties are paid and

provided, as required by the Town Board and by this Ordinance.

(f) If a WESF is not constructed within 30 months after a license is issued, the license shall

expire.

1.07 APPLICATION AND LICENSING REQUIREMENTS AND STANDARDS

(a) Sound Modeling, Sound Standards and Sound-Related Enforcement Procedures.

1. Applicant's Pre-licensing Sound Studies and Modeling. An application for a

WESF License shall include a sound prediction model that meets the

requirements in section 1.07 and includes the following information:

Information regarding the make and model of the turbines, Sound Power Levels

(Lw) for each one-third octave band from 6.3 Hz up through 10,000 Hz, and a

projection showing the expected dBA and dBC sound levels computed using the

one-third octave band sound power levels (Lw) with appropriate corrections for

modeling and measurement accuracy tolerances and directional patterns of the

WTi for all areas within and to one mile from the project boundary for the wind

speed, direction and operating mode that would result in the worst case WTi

sound emissions.

The prediction model shall assume that the winds at hub height are sufficient for

the highest sound emission operating mode even though the enforcement tests

will be with ground level winds of 10 mph or less. This is to accommodate

enforcement under weather conditions where there is significant difference in the

wind speed between ground and hub heights. This condition often occurs during

summer evenings when wind shear is affected by the reduction in solar heating of

the earth's surface between sunset and sunrise.

The projection may be by means of computer model but shall include a

description of all assumptions made in the model's construction and algorithms. If

the model does not consider the effects of wind direction, geography of the

terrain, and/or the effects of reinforcement from coherent sounds or tones from

the turbines these should be identified and other means used to adjust the model's

output to account for these factors. These results may be displayed as a contour

map of the predicted levels, but should also include a table showing the predicted

levels at noise-sensitive receptor sites and residences within the model's

boundaries. The predicted values must include dBA and dBC values but shall also

include un-weighted octave band sound pressure levels from 8 Hz to 10k Hz in

data tables.

The Town will refer the applicant's information and sound studies to the Town

engineer (if qualified in acoustics) or a Qualified Independent Acoustical

Consultant for review and a determination whether the proposed WES will, based

on pre-licensing studies and sound modeling, comply with the sound limits set

forth in this Ordinance.

2. Independent Pre-licensing Sound Modeling. In any case in which a WES is

located within one mile of a sensitive receptor the Town shall, and in other cases

the Town may, require the preparation of an independent preconstruction noise

study for each proposed Wind Turbine location conducted by a Qualified

Independent Acoustical Consultant, in accordance with the procedures provided

in this section. The preconstruction baseline studies shall be conducted by an

Independent Qualified Acoustical Consultant selected by the Town. The Qualified

Independent Acoustical Consultant shall be selected and retained by the Town.

The applicant shall be responsible for paying the Independent Qualified

Acoustical Consultant's fees and all costs associated with conducting the study.

The applicant shall provide financial security and reimburse the Town for the cost

of the study in accordance with section 1.09 of this ordinance.

3. Sound Limits. No license shall be issued unless the pre-licensing information and

sound modeling shows that the proposed WES will comply with the following

sound limits and requirements.

a. Audible Sound Limit

(1) No WTi or WES shall be located so as to cause an exceedance of

the preconstruction/operation background sound levels by more

than 5 dBA. The background sound levels shall be the L90A sound

descriptor measured during a preconstruction noise study during

the quietest time of night (lOpm until4am). All data sampling shall

be one or more contiguous ten (10) minute measurements. L90A

results are valid when L 1 OA results are no more than 10 dBA

above L90A for the same time period and L 1 OC less L90C is no

more than 15 dBC. Noise sensitive sites are to be selected based on

wind development's predicted worst-case sound emissions (in

LeqA and LeqC) which are to be provided by Applicant.

(2) Test sites are to be located along the property line(s) of the

receiving nonparticipating parcels.

(3) A 5 dB penalty is applied for tones as defined in IEC 61400-11 .

b. Low Frequency Sound Limit

The LeqC and L90C sound levels from the wind turbine at the receiving

property shall not exceed the lower of either:

(1) LeqC-L90A greater than 20 dB outside any occupied structure, or

(2) A maximum not-to-exceed sound level of 50 dBC (L90C) from the

wind turbines without contribution from other ambient sounds for

properties located one mile or more away from state highways or

other major road or 55 dBC (L90C) for properties closer than one

mile from a state highway or other major road.

These limits shall be assessed using the same nighttime and wind/weather

conditions required in section 1.07(a)3.a.(1). Turbine operating sound

emissions shall represent worst case sound emissions for stable nighttime

conditions with low winds at ground level and winds sufficient for full

operating capacity at the hub.

c. General Standard

Not to exceed 35 dBALeq 10 min. within 100 feet of any occupied structure.

4. Sound Study and Measurement Requirements.

a. All instruments must meet ANSI or IEC Type 1 Precision integrating

sound level meter performance specifications.

b. Procedures must meet ANSI S12.9 Part 3. Where there are differences

between the procedures and definitions of this document and ANSI

standards the procedures and definitions of this document shall be applied.

Where a standard's requirements may conflict with other standards the

most stringent requirement shall apply.

c. Measurements for background sound levels shall be made when ground

level winds are 2 mls (4.5 mph) or less with wind speeds at the hub at or

above nominal operating requirements and for other tests when ground

level winds are 4 mls (9 mph). Weather in the night often results in low

ground level wind speed and nominal operating wind speeds at wind

turbine hub heights.

d. IEC 61400-11 procedures are not suitable for enforcement of these

requirements except for the presence of tones.

5. Postconstruction Sound Measurements.

Within twelve months after the date when the project is fully operational, and

within four weeks of the anniversary date of the pre-construction background

noise measurements, the Licensee shall repeat the existing sound environment

measurements taken before the project approval. Post-construction sound level

measurements shall be taken both with all WES' s running and with all WES' s off.

At the discretion of the Town, the preconstruction background sound levels

(L90A) can be substituted for the "all WES off' tests if a random sampling of

10% of the pre-construction study sites shows that background L90A and C

conditions have not changed more than +1- 5 dB (dBA and dBC) measured under

the preconstruction nighttime meteorological conditions. The post-construction

measurements shall be reported to the Town (and available for public review)

using the same format as used for the preconstruction sound studies. Postconstruction

noise studies shall be conducted by a firm chosen by the Town. Costs

of these studies shall be reimbursed by the Licensee. The security required by

section 1.09(b) shall include these costs. The WES Licensee shall provide all

technical information and wind farm data required by the Independent Qualified

Acoustical Consultant before, during, andlor after any acoustical studies required

by this document and for local area acoustical measurements.

(b) Site Plan and Set-Back Requirements.

1. Site Plan Requirements. An application for a WESF License shall include a site

plan containing the following information and meeting the following

requirements:

a. The boundaries of all Project Parcels and Participating Parcels.

b. The boundaries of all Non-Participating Parcels located within 2,640 feet

of any boundary of a Project Parcel.

c. The names, addresses and phone numbers of the owners of all Project

Parcels, Participating Parcels, and Non-Participating Parcels located

within 2,640 feet of any boundary of a Project Parcel.

d. An aerial photo showing all Project Parcels, Participating Parcels, and

Non-Participating Parcels located within 2,640 feet of any boundary of a

Project Parcel.

e. Existing zoning of each Project Parcel and all required zoning setbacks on

each Project Parcel.

f. The proposed location of all components of the proposed WESF,

including but not limited to the wind turbine, tower, access roads, control

facilities, meteorological towers, maintenance and all power collection and

transmission systems.

g. The location and description of all structures located on Project Parcels,

Participating Parcels, and any Non-Participating Parcel located within

2,640 feet of any boundary of a Project Parcel.

h. The location of all above-ground utility lines, telephone lines, and railroad

rights-of-way located within 1000 feet of, or three times the total height of

a proposed Wind Turbine, whichever is greater.

i. The location of all public roads located within 1000 feet of, or three times

the total height of a proposed Wind Turbine, whichever is greater.

J. Dimensional representation and sizes of the structural components of the

tower construction including the base, footings, tower, and blades.

k. The distance between each WES tower and each of the following shall be

shown on the site plan: structures on all Project Parcels and Participating

Parcels; structures on all Non-Participating Parcels located within 2,640

feet of any boundary of a Project Parcel; above ground utility lines,

telephone lines, railroad rights of way, and public roads located within

1000 feet or three times the total height of any proposed Wind Turbine,

whichever is greater.

1. Schematic of electrical systems associated with the proposed WESF

including all existing and proposed electrical connections.

m. Manufacturer's specifications and installation and operation instructions.

n. The size and scale of the site plan shall be as determined by the Town

engineer. The scale map shall include a north arrow, the date, the scale,

and reference to a section comer.

o. The site plan shall include such additional information as the Town

engineer or Town Board may require.

2. Set-Back Requirements. A WESF shall comply with the following set-back

requirements, which shall apply in addition to the siting requirements in section

1.07(a).

a. All parts of a WESF shall comply with all applicable set-back

requirements in the Town's zoning ordinance.

b. Each Wind Turbine shall be set back at least 1,000 feet and at least five

times the rotor diameter from the property line of any Non-Participating

Parcel.

c. Each Wind Turbine shall be set back not less than the greater of 1,000 feet

or three times the total height of the Wind Turbine from any public road.

d. Each Wind Turbine shall be set back not less than the greater of 1,000 feet

or three times the total height of the Wind Turbine from any above-ground

electric power line, telephone line, or railroad right-of-way, except that a

lesser setback shall be permitted if the utility or railroad agrees In a

writing approved by the Town.

e. Each Wind Turbine shall be set back not less than 2,640 feet from any

residence, business, school, daycare facility, church, hospital, or other

occupied structure on any Non-Participating Parcel.

f. Each Wind Turbine shall be set back not less than 1,000 feet from any

residence, business, school, daycare facility, church, hospital, or other

occupied structure, including on any Participating Parcel or Project Parcel.

1. An application for a WESF License shall include a road use and risk assessment

plan containing the following information and meeting the following

requirements:

a. A description and map of all public roads in the Town to be used in

connection with the construction of the WESF, including a description of

how and when such roads will be used in connection with the construction

of the WESF.

b. A description of the type and length of vehicles and type, weight and

length of loads to be conveyed on all public roads in the Town.

c. A complete assessment of the proposed use of roads in the Town in

connection with the construction of the WESF, including the adequacy of

turning radii; the ability of the roads to sustain loads without damage; the

need to remove (permanently or temporarily) signs, trees, utilities, or

anything else; any reasonably foreseeable damage to roads or other

property; any reasonably foreseeable costs the Town may incur in

connection with the use of roads in the Town, including but not limited to

costs relating to traffic control, public safety, or damage to roads or

property.

d. A traffic control and safety plan relating to the use of roads in the Town in

connection with the construction of the WESF.

e. Any additional information the Town may request relating to the use of

roads in the Town in connection with the WESF.

2. The Town will evaluate the road use and risk assessment plan with assistance

from such consultants it deems appropriate. The Town may document the

condition of all roads to be used in connection with the construction of the WESF

in such manner as it deems appropriate. The Town may require changes to the

road use and risk assessment plan it deems appropriate to protect public safety, to

protect Town roads, and to address anticipated costs to the Town associated with

applicant's use of roads in the Town.

3. The Town may require the applicant to enter into an agreement relating to the use

of roads in the Town. The Town may require the applicant to provide a deposit or

letter of credit in an amount the Town determines appropriate to secure any

obligations under the agreement, including but not limited to any obligation

relating to alterations or improvements to roads needed in connection with

applicant's use of roads in the Town, and the reimbursement of the Town for any

costs the road use and risk assessment indicates the Town may incur in

connection with applicant's use of the roads in the Town.

(d) Design Plan and Design Requirements.

An application for a WESF License shall include a design plan containing the

information and meeting the requirements in this section. Each Wind Turbine shall

consist of a tower, generator(s), nacelle and blades. The total height of a Wind Turbine

shall not exceed 400 feet above grade. Each WESF must have access roads, underground

transmission cabling to connect the generators to utility electric distribution lines, and

underground communication lines. The design plan shall describe the nature and type of

the Wind Turbines proposed to be installed. Manufacturer's specifications and

installation and operation instructions shall be included. Each Wind Turbine shall

comply with the following requirements:

1. Location of Wind Turbines shall have the least impact on agriculture productivity

and comply with the goals and policies of the Town of Smelser Land Use Plan.

2. Wind Turbines shall be painted a non-reflective, non-obtrusive color.

3. The design of the buildings shall, to the extent reasonably feasible, use materials,

colors, textures, screening and landscaping that will blend with and be compatible

with the natural setting and the existing environment.

4. Wind Turbines shall not be artificially lighted, except to the extent required by

law, and strobe or other intermittent lights are prohibited unless required by law.

5. No advertising or display shall be permitted, other than reasonable identification

of the manufacturer or operator of the Wind Turbines or WESF.

6. Electrical controls and control wiring and power-lines must be wireless or below

ground, except where wind farm collector wiring is brought together for

connection to the transmission or distribution network, adjacent to that network.

7. The clearance between the ground and the Wind Turbine blades shall be not less

than 75 feet.

( e) Aircraft Protection Requirements. An application for a WESF License shall include a

statement from the Federal Aviation Administration that the proposed WESF will not

pose a hazard to aircrafts, and a statement from the Wisconsin Department of

Transportation that the proposed WESF complies with Wis. Admin. Code § Trans 56.

(t) Blasting Plan and Requirements. An application for a WESF License shall include a

blasting plan containing the information and meeting the requirements in this section.

The blasting plan shall comply with all requirements under Wisconsin law governing

blasting, including ground vibration limits. The plan shall require that flyrock traveling

in the air or along the ground shall remain in the controlled blasting area site owned or

controlled by the applicant. All blasting must be performed by or under the direct

supervision of a state-licensed blaster. A blasting log for each blast shall be kept by the

applicant for not less than 5 years, and copies of the required blasting log shall be

promptly submitted to the Town upon the Town's request. A resident call list shall be

established for the purpose of notifying neighbors at homes in the vicinity of the WESF

of blasting activity. The call list shall be maintained and used on a request basis only for

all residents in the vicinity of the WESF who ask to be notified before any blast.

Explosives shall be stored in accordance with Wis. Admin. Code Ch. Comm. 7.

(g) Microwave Beam Study and Requirements. An application for a WESF License shall

include a microwave beam study and electromagnetic interference mitigation plan. All

Wind Towers shall be sited in accordance with the findings of the microwave beam study

and electromagnetic interference mitigation plan. The applicant shall mitigate any

electromagnetic interference such as to radio or television.

(h) Shadow Flicker and Blade Glint Assessment and Requirements. Shadow flicker occurs

when the blades of a Wind Turbine pass between the sun and an observer, casting a

readily observable, moving shadow on the observer and his or her immediate

environment. An application for a WESF License shall include a detailed shadow flicker

and blade glint assessment model and plan containing the following information and

meeting the following requirements.

1. The model shall be prepared by a registered professional regularly engaged in tbis

type of work with not less than three years experience.

2. The model study area will examine areas where shadow flicker will occur within

a one mile radius of the Project Parcels.

3. The model will be calculated using the following minimum inputs:

a. Turbine locations (proposed and existing)

b. Shadow flicker receptor locations

c. Existing topography (elevation contours and vegetation)

d. Rotor diameter and hub height

e. Joint wind speed and direction distribution (wind rose table)

f. Hours of sunshine (long term monthly references)

4. All existing occupied structures, structures permitted for construction and

roadways shall be identified within the model as receptors. Each individual

receptor that is a residential parcel shall be defined by the perimeter of the

building plus an additional 100 foot boundary around the building. Schools,

churches, and other public building receptors shall be defined by the entire

outdoor area routinely utilized in their operation.

5. The model may be prepared by use of current aerial photography and

topographical maps. A site visit by the preparer is required to identify receptors

and verify the existing conditions.

6. The model shall calculate the locations and durations of shadow flicker caused by

the proposed WESF within the study area. The model shall clearly indicate the

duration of shadow flicker at each receptor and across the entire study area

showing the total number of hours per year anticipated.

7. Wind Turbines shall be sited such that shadow flicker will not fall on a receptor,

except that shadow flicker expected to fall on a roadway or a residential parcel

shall be acceptable if all of the following conditions are satisfied:

a. The flicker will not exceed 10 hours per year at anyone receptor measured

as the sum of those times during which shadow flicker occurs during any

calendar year.

b. The flicker will fall more than 100 feet from all existing or permitted

residences.

c. The traffic volumes are less than 500 vehicles per day on the affected

roadway.

d. The flicker will not fall onto an intersection.

8. Problem zones where shadow flicker will interfere with existing and future

receptors and which is not allowable under this section shall be identified, and

measures to mitigate problems shall be described, including but not limited to

siting changes, operational procedures, grading or landscaping.

9. Blade glint, defined as the intermittent reflection of the sun off the surface of the

blades of a Wind Turbine, is prohibited. The applicant shall submit a paint

sample that demonstrates the color, texture and gloss of the proposed surface

coating. The applicant shall also submit a certification by the manufacturer

stating that the proposed surface coating will not create a reflective surface

conducive to blade glint.

(i) Sign Plan and Sign Requirements. An application for a WESF License shall include a

sign plan meeting the requirements in this section.

1. The plan shall provide reasonable signage at the WESF, identifying the Project

Parcels as being part of the WESF and providing appropriate safety notices and

warnings about trespassing. The no trespassing signs shall be posted as follows:

one on each side of each Wind Turbine, and one at the beginning of each access

drive to the WESF. Signs shall be sized at a minimum to meet the provisions of

Wis. Stat. § 943.13(2).

2. No advertising material or signage other than warning, equipment information or

indicia of ownership shall be allowed on the Wind Turbines. This prohibition

shall include the attachment of any flag, decorative sign, streamers, pennants,

ribbons, spinners or waving, fluttering or revolving devices, but not including

weather devices.

3. The WESF licensee's address and phone number shall be posted on each Wind

Turbine.

G) Stray Voltage Assessment and Requirements.

1. An application for a WESF License shall include reports of stray voltage analyses

in accordance with this section. The applicant shall conduct and include a report

of a preconstruction stray voltage test on all livestock facilities located within a

one-mile radius of the Project Parcels. The tests shall be performed by a

Wisconsin certified stray voltage investigator approved by the Town. The tests

shall be performed according to PSCW Phase II Stray Voltage Testing Protocol.

A report of the tests shall be provided with the WESF License application and

shall be provided to the owners of all property included in the study area.

Applicant shall seek written permission from property owners prior to conducting

testing on such owners' property. Applicant shall not be required to perform

testing on property where the owners have refused to grant permission to conduct

the testing.

2. Following construction of the WESF, the applicant shall conduct a postconstruction

stray voltage test on all livestock facilities located within a one-mile

radius of the Project Parcels. The tests shall be performed by a Wisconsin

certified stray voltage investigator approved by the Town. The tests shall be

performed according to PSCW Phase II Stray Voltage Testing Protocol. A report

of the tests shall be provided to the Town and to the owners of all property

included in the study area. Applicant shall seek written permission from property

owners prior to conducting testing on private property. Applicant shall not be

required to perform testing on property where the owners have refused to grant

permission to conduct the testing.

(k) Security Plan and Requirements. An application for a WESF License shall include a

security plan that contains the information and meets the requirements in this section.

1. All wiring between the Wind Turbines and substations shall be installed not less

than four feet underground.

2. The outside of Wind Turbines shall not be climbable.

3. All access doors to the towers and electrical equipment shall be locked.

4. Warning signs shall be placed on each tower, all electrical equipment, and each

entrance to the WESF.

5. The WESF Licensee shall, in addition to randomized two-token authentication for

Internet protection, adopt and maintain physical security protocols including locks

and remote intrusion monitoring.

(1) Fire Prevention and Emergency Response Plan and Requirements. An application for a

WESF License shall include a fire prevention and emergency response plan containing

the information and meeting the requirements in this section. The plan shall describe the

potential fire and emergency scenarios that may require a response from fire, emergency

medical services, police or other emergency responders. The plan shall designate the

specific agencies that would respond to potential fire or other emergencies, shall describe

all emergency response training and equipment needed to respond to a fire or other

emergency, shall include an assessment of the training and equipment available to the

designated agencies, and shall provide for any special training or emergency response

equipment that the designated agencies need to use in responding to a potential fire or

other emergency at applicant's cost.

(m) Emergency Shutdown Plan and Requirements. An application for a WESF License shall

include an emergency shutdown plan. The plan shall describe the circumstances under

which an emergency shutdown may be required to protect public safety, and shall

describe the procedures that the Town and the WESF Licensee will follow in the event an

emergency shutdown is required.

(n) Decommissioning and Site Restoration Plan and Requirements. An application for a

WESF License shall include a decommissioning and site restoration plan containing the

information and meeting the requirements in this section.

1. The plan shall provide for the removal from the Project Parcels, and lawful

disposal or disposition of, all Wind Turbines and other structures, hazardous

materials, electrical facilities, and all foundations to a depth of not less than

42 inches below grade. The plan shall provide for the removal of all access roads

that the owner of the Project Parcels wants removed. The plan shall provide for

the restoration of the Project Parcels to farmland of similar condition to that

which existed before construction of the WESF.

2. The plan shall provide for the decommissioning of the site upon the expiration or

revocation of the WESF License, or upon the abandonment of the WESF. The

WESF shall be deemed abandoned if its operation is ceased for 12 consecutive

months.

3 _ The plan shall include provisions for financial security to secure completion of

decommissioning and site restoration, in form and amount satisfactory to the

Town. A letter of credit, cash on deposit with the Town, or cash held in escrow

pursuant to an agreement acceptable to the Town, shall be acceptable security.

The amount of the financial security shall be equal to the estimated cost of

completing the decommissioning and site restoration in accordance with the

approved plan, as approved by the Town.

4. The plan shall include written authorization from the WESF Licensee and all

owners of all Project Parcels for the Town to access the Project Parcels and

implement the decommissioning and site restoration plan, in the event the WESF

Licensee fails to implement the plan. The written authorization shall be in a form

approved by the Town.

1.08 CONSTRUCTION, OPERATION, MAINTENANCE, AMENDMENTS, AND

MISCELLANEOUS REQUIREMENTS

(a) A WESF shall be constructed, operated, and maintained in accordance with the plans

required under section 1.07 as approved by the Town, with the WESF License, with the

WESF Agreement, and with this Ordinance. Where a standard or requirement is not

provided by either this Ordinance, the WESF License or the WESF Agreement, the

WESF Licensee shall comply with Good Utility Practice.

(b) The WESF Licensee shall repair and replace parts of the WESF in accordance with

Good Utility Practice, and in accordance with the WESF License, the WESF

Agreement, and this Ordinance.

Agreement. The application shall describe the requested change or changes. The Town

Board shall review the application and determine what provisions of this Ordinance,

including sections 1.06 and 1.07, will apply to the application. The application will then

be processed in accordance with all provisions of this Ordinance deemed applicable by

the Town Board. The provisions of section 1.09 relating to the reimbursement of fees

and costs shall apply to any application for changes to a WESF License or WESF

Agreement.

1.09 REIMBURSEMENT OF FEES AND COSTS

(a) Reimbursable Costs. The Town Clerk and other Town staff may expend time in the

review and processing of WESF Licenses. The Town may also retain the services of

professional consultants in reviewing, processing and acting upon WESF License

applications, including but not limited to engineers, attorneys, planners, environmental

specialists, and other consultants with skills relevant to WESF Licensing issues arising

under this Ordinance. Any applicant for a WESF License shall reimburse the Town for

staff time expended, and shall reimburse the Town for the cost to the Town charged by

any consultant retained by the Town, in the administration, investigation, and processing

of such WESF License application.

(b) Preliminary Cost Reimbursement Agreement. At the time an application for a WESF

License is filed with the Town, the applicant shall execute for the benefit of the Town an

agreement agreeing to pay and providing adequate security guaranteeing payment of the

cost of the investigation, review and processing of the application, including without

limitation by way of enumeration, legal, engineering, acoustical, planning,

environmental, and staff administrative costs. The agreement and the security shall be in

form and substance acceptable to the Town. The Town shall not begin processing the

application until the preliminary cost reimbursement agreement is approved and signed

and until the required security is provided to the Town.

1.10 VIOLATIONS AND PENALTIES; COMPLAINTS AND MODIFICATION,

SUSPENSION OR REVOCATION OF LICENSE

(a) Violations of This Ordinance. It shall be unlawful to construct or operate any WESF or

part thereof in violation of any provision of this Ordinance, a WESF License, or a WESF

License Agreement. Any person who violates or fails to comply with any provision of

this Ordinance, a WESF License or a WESF License Agreement shall, upon conviction

thereof, be subject to forfeitures of not less than $250.00 and not more than $700.00, and

shall pay all costs and expenses of enforcement, including attorney and other fees

incurred by the Town. Each day a violation exists or continues shall constitute a separate

offense.

(b) Complaints and Modification, Revocation or Suspension. The Town Board shall retain

continuing jurisdiction to modify, suspend or revoke all WESF Licenses in accordance

with this section. Such authority shall be in addition to the Town's authority to prosecute

violations and take other enforcement action.

1. In this section, "violation" means a violation of this Ordinance, or a violation of a

WESF License issued under this Ordinance, or a violation of a WESF License

Agreement entered into under this Ordinance.

2. Any resident of the Town or Town official may file a written complaint with the

Town Clerk alleging that a WESF Licensee has committed or is committing a

violation. Such complaints shall be forwarded to the Town Plan Commission.

3. The Town Plan Commission shall preliminarily review the complaint. In

connection with its preliminary review, the Town Plan Commission may require

the Town building inspector, engineer, attorney or other person or persons to

conduct such investigations and make such reports as the Town Plan Commission

may direct. The Plan Commission may request information from the holder of a

WESF License, the complainant, and any other person or entity to assist with its

preliminary review.

4. Following its preliminary review, the Town Plan Commission may:

a. Dismiss the complaint;

b. Refer the complaint to the Town attorney for prosecution; or

c. Conduct a hearing to determine whether the alleged violation(s) have

occurred, and what remedial action should be taken. Prior to such hearing,

notice of the hearing shall be given to the holder of the WESF Licensee

and the complainant, and in accordance with the Open Meeting Law. The

holder of the WESF License and the complainant, and any other person,

may appear at the hearing and may offer testimony and other relevant

evidence, and may be represented by any attorney. If the Plan

Commission concludes that violations have occurred, the Plan

Commission may:

(1) Impose conditions on the WESF License to the extent reasonably

necessary to discontinue the violation( s) or avoid any recurrence

thereof; or

(2) Suspend the WESF License until such time as the WESF License

holder presents a plan, satisfactory to the Plan Commission. that

will discontinue the violation( s) or prevent any recurrence thereof,

and on such further conditions as the Town Plan Commission

deems appropriate to discontinue and prevent further violations; or

(3) Revoke the WESF License and direct decommissioning of the

WESF, if the Town Plan Commission concludes that no reasonable

modification can be made to the WESF to discontinue or prevent

violations; or

(4) Refer the matter to the Town attorney for prosecution, subject to

Town Board approval; or

(5) Take no action, if the Town Plan Commission concludes that no

further action is needed to discontinue or prevent violations, and

that prosecution is unwarranted.

d. Following any such hearing, the Plan Commission's written decision shall

be furnished to the WESF License holder and to the complainant. An

appeal from a decision of the Town Plan Commission may be taken to the

Town Board as provided in this section.

e. An appeal from the decision of the Town Plan Commission may be taken

to the Town Board by the WESF License holder or a complainant. Such

appeal must be in writing and must specify the grounds thereof, and must

be filed with the Town Clerk within ten days after the final action of the

Town Plan Commission. The Town Clerk shall provide any appeal to the

Town Board. The Town Board shall fix a reasonable time for the hearing

of the appeal, and shall give public notice thereof as well as due notice to

the WESF Licensee and the complainant. The action of the Town Plan

Commission shall be sustained unless the Town Board, by a favorable

vote of the majority of all members of the Town Board, reverses or

modifies the Town Plan Commission's determination. An appeal from a

decision of the Town Board shall be by certiorari review, which shall be

commenced within 30 days after the decision ofthe Town Board.

1.11 SEVERABILITY

The provisions of this Ordinance shall be deemed severable. It is expressly declared that the

Town Board would have passed the other provisions of this Ordinance irrespective of whether or

not one or more provisions may be declared invalid.

1.12 EXPIRATION

Unless the Town Board approves a different term based on an analysis of the anticipated useful

life of the WESF. a license issued under this Ordinance shall expire thirty years after the date it

is issued.

1.13 EFFECTIVE DATE

This Ordinance shall take effect and be in force from and after the day after passage and

publication as required by law.

1. Town Board Approval. This Ordinance was adopted by the Town Board on this 29th day

of September, 2011.

Approved: Arnold Rawson, Robert Droessler & Pat Klar

Attest: Kim Kieler

2. Public Notice.

3. Public Review. A notice was published in the Tri-County Press newspaper on

9/15/11 & 9/22/11 (date) to inform residents that a final draft of this Ordinance was on file

with the Town Clerk for a two week period ( 9/15/11 - 9/29/11) during which it was

available for inspection.

(b) Posting. This Notice of Adoption of Ordinances relating to this Ordinance was posted on

9/30/11 (date) at the Smelser Town Hall.

the Tri-County Press newspaper, the publication of record for the Town of Smelser on

10/6/11 (date).