Limitations on local zoning restrictions
First, under Wis. Stat. § 66.0401, local governments -- counties, towns, cities and villages -- may not place any restriction on the installation or use of solar or wind energy systems unless the restriction:
- serves to preserve or protect public health or safety
- does not significantly increase system cost or efficiency
- allows for an alternative system of comparable cost and efficiency
This law effectively prohibits unreasonable public land use controls covering solar and wind energy systems by defining a fairly narrow set of "reasonable" conditions. The law subsequently allows for a local permitting procedure for guaranteeing unobstructed access to wind or solar resources. A permit will not be granted if obstruction already exists or if the construction of such an obstruction is already well into the planning stages. The effect of the permit is similar to a private solar easement agreement, except it does not require the consent of a neighboring property owner. It is important to note that system owners are not required to obtain a permit under this subsection prior to installing a solar or wind energy system. If a permit is necessary as the result of a local zoning ordinance, the permitting burden may not deviate from Wis. Stat. § 66.0401 as described above.
Limitations on private land use restrictions
A separate law, Wis. Stat. § 236.292, voids all restrictions on platted land that prevent or unduly restrict the construction or operation of solar and wind energy systems. This law effectively prohibits private land use controls (e.g., deed restrictions, homeowner association regulations, easements, etc.) from preventing the installation and operation of wind and solar energy systems. In the case of both access laws - public and private - solar energy systems are defined broadly to include both thermal and electrical technologies.
Right to sun and wind
Other sections of Wisconsin law address a solar or wind system owner's right to retain unobstructed access to the wind or sun. Wis. Stat. § 700.41 effectively freezes the permitted building envelope of properties adjacent to a solar or wind system to whatever it was at the time the system was constructed. This allows the system owner to construct a system based on existing zoning regulations and be certain that future zoning amendments and development will not render the system ineffective. Separately, Wis. Stat. § 844.22 states that any structure or vegetative growth that occurs after the installation of a solar or wind energy system and interferes with its function is considered to be a private nuisance. The purpose of this law is to provide system owners with a remedy to prevent interference with their systems in a situation where none of the other statutory protections can be applied. The right to unobstructed resource access can only be applied to actions that take place after a system is constructed.