Mar 9 - McClatchy-Tribune Regional News - Ed Lowe The Post-Crescent, Appleton, Wis.

The town's new ordinance regulating free-standing solar installations isn't restrictive enough to do what some of its proponents hoped, but could be stretching the town's legal authority just the same.

So says a state solar power expert, who said it may take a precedent-setting lawsuit to answer whether the town's new law stands up to that of the state.

Either way, Niels Wolter, the solar electric program manager for Focus on Energy, a public-private partnership funded by state power utility user fees, described the new Grand Chute political response to a request to erect a solar generator as "very unusual."

Wolter said several recent disputes involving solar installations in other Wisconsin communities were resolved with significantly less red tape. Most were approved once the leaders of the affected communities learned of the state law designed to eliminate local barriers to a renewable energy system, he said.

The Town Board approved the ordinance Tuesday, about nine months after some neighbors of Grand Chute resident Donna Kuether caught wind of her plan to erect a 23-foot-tall solar collector in her backyard.

The board ordinance was stripped of its most rigid proposed restriction, one that would have killed Kuether's $26,000 project, by a vote of 4-1.

Supv. Dave Schowalter cast the sole opposing vote, saying he thinks Kuether's plans should not overshadow the property rights of neighbors preferring not to view the solar collector from their own backyards.

"I still don't particularly agree with what the state has to say here," Schowalter said.

Kuether was pleased the town ordinance would no longer delay her plans, but wasn't fully satisfied.

"What about the (permit applicant) who comes along five years from now?" she warned the board.

Blinded by the sun

Supv. Jeff Nooyen sided with opponents of Kuether's construction plan throughout the debate, but voted with the majority in approving an ordinance that would not stop it.

"Reluctantly, I supported it," Nooyen said Wednesday. "It's pretty clear right now with the way the state statute is written that the law is on Mrs. Kuether's side."

Kuether told the board she would sue the town if it stalled her plans longer. She would argue that the town violated the 1983 state law intended to prevent counties and communities from trying to thwart development of renewable energy systems, except when addressing human health and safety concerns.

The new town ordinance still says free-standing solar installations can be no taller than the "primary structure" on the property, and must be sited in a lot's backyard. It also says the height of such structures can't exceed their distance from the nearest property line.

Nooyen said those restrictions are justified in the context of health and safety, as the state law allows, since free-standing collectors could topple and pose a hazard to adjacent properties.

"I felt it was best that the town would have an enforceable ordinance," Nooyen said.

The town Plan Commission had recommended the ordinance require that any free-standing system taller than 10 feet be sited at least 100 feet from property lines. That would have eliminated their use on typically sized residential lots, including Kuether's.

Supv. Travis Thyssen proposed the less-rigid restriction included in the new ordinance, but noted concerns that the setback requirement still may be more restrictive than the state law allows.

"Even now, we could be possibly opening ourselves up for litigation," Thyssen said.

Shedding light

Nooyen concedes the ordinance passed Tuesday was prompted as much by concerns about aesthetics and neighboring property values as any real or imagined dangers associated with solar energy collectors.

"I'm not at all opposed to solar energy development, but I would like to see it done in a way that respects the visual character of our neighborhoods," Nooyen said.

However, Nooyen said he is confident the new town ordinance's restrictions are reasonable in the context of public health and safety.

Wolter said he isn't so sure.

"If you're going to look at a solar system in terms of health and human safety, then you should look at everything that might be similar, like a basketball hoop or a satellite dish -- garden sheds and fences, too," he said.

"Is it an undue restriction" on solar systems? Wolter asked. "That's something the courts would have to figure out."

The matter could be settled by clarifying legislative action as well, Wolter said, though in that case, "local governments wouldn't even have the chance to say anything about it."

Opponents of Kuether's plan, including those who prompted the town's newest ordinance, argue that's largely the case already.