City of Madison
Legislative File ID   11077
Type:   Ordinance    Status:   Passed
Enactment Date:   10/28/2008    Enactment No.:   ORD-08-00122
Title:  
AMENDED SUBSTITUTE - Amending Sec. 28.03(2), creating Sec. 28.04(18)(e); repealing Secs 28.08(2)(c)16., 28.08(9)(c)5., 28.08(11)(c)9., 28.12(13)(a)10.d.; renumbering current Secs. 28.12(13)(a)10.e. through g. to Secs. 28.12(13)(a)10.d. through f., respectively; amending Secs. 30.01(3)(b)5., 30.01(5)(b); repealing Secs. 30.01(9)(c)9. and 11.; renumbering current Sec. 30.01(9)(c)10. to Sec. 30.01(9)(c)9, respectively.; amending Sec. 30.05(1)(d); repealing 30.05(2); repealing Sec. 30.05(5); renumbering current Secs. 30.05(6) through (17) to Secs. 30.05(5) through (16), respectively; amending Secs. 30.05(7) and (9); creating new Sec. 30.05(13)(d); renumbering current Secs. 30.05(13)(d) through (f) to Secs. 30.05(13)(e) through (g), respectively; creating new Secs. 30.05(13)(h), 30.05(15)(b), 30.05(15)(c); renumbering current Secs. 30.05(15)(b) and (c) to Secs. 30.05(15)(d) and (e), respectively; and repealing Sec. 33.19(12)(d)3.; renumbering Sec. 33.19912)(d)4. through 11. to 3. to 10., respectively; repealing Sec. 33.19(12)(f)1.f.; renumbering Sec. 33.19(12)(f)1.g. to f.; repealing 33.19(13)(d)8. and renumbering Sec. 33.19(13)(d)9. through 13. to 8. through 12., respectively, of the Madison General Ordinances to update provisions relating to solar/wind systems.
Controlling Body:   COMMON COUNCIL
Introduced:   6/24/2008    Version:   3
Final Action:   10/28/2008    Contact:   dalthaus@cityofmadison.com
Name:  
Solar energy
Extra Date 1:  
Requester:   PLAN COMMISSION
Sponsors:  
Satya V. Rhodes-Conway, Marsha A. Rummel, Brian L. Solomon
Legislative History
DateActing BodyAction TakenMotion
6/24/2008Attorney's Office/Approval GroupThis Ordinance was Referred for Introduction
Notes: Plan Commission, Sustainable Design and Energy Committee, Urban Design Commission, Landmarks Commission. Public Hearing: PC, 7/21/08 and CC, 8/5/08
7/1/2008COMMON COUNCILThis Ordinance was Refer For Public Hearing to the PLAN COMMISSION
Notes: Additional Referral(s): Sustainable Design and Energy Committee, Urban Design Commission, Landmarks Commission
7/1/2008PLAN COMMISSIONThis Ordinance was Refer to the SUSTAINABLE DESIGN AND ENERGY COMMITTEE
Notes:
7/1/2008PLAN COMMISSIONThis Ordinance was Refer to the URBAN DESIGN COMMISSION
Notes:
7/1/2008PLAN COMMISSIONThis Ordinance was Refer to the LANDMARKS COMMISSION
Notes:
7/7/2008LANDMARKS COMMISSIONA motion was made by Levitan, seconded by Taylor, to Return to Lead with the Recommendation for Approval to the PLAN COMMISSION. The motion passed by the following vote:Pass
(5:0)
Notes:
7/9/2008URBAN DESIGN COMMISSIONA motion was made by Wagner, seconded by Rummel, to Return to Lead with the Following Recommendation(s) to the PLAN COMMISSION. The motion passed by the following vote:Pass
(5:1)
Notes: On a substitute motion by Wagner, seconded by Rummel, the Urban Design Commission VOTED TO NOT RECOMMEND APPROVAL of Legistar I.D. 11077, Amending Sec. 28.03(2), creating Sec. 28.04(18)(e); repealing Secs 28.08(2)(c)16., 28.08(9)(c)5., 28.08(11)(c)9., 28.12(13)(a)10.d.; renumbering current Secs. 28.12(13)(a)10.e. through g. to Secs. 28.12(13)(a)10.d. through f., respectively; amending Secs. 30.01(3)(b)5., 30.01(5)(b); repealing Secs. 30.01(9)(c)9. and 11.; renumbering current Sec. 30.01(9)(c)10. to Sec. 30.01(9)(c)9.; amending Sec. 30.05(2); repealing Sec. 30.05(5); renumbering current Secs. 30.05(6) through (17) to Secs. 30.05(5) through (16), respectively; amending Sec. 30.05(9); repealing 30.05(11)(e); creating new Sec. 30.05(13)(d); renumbering current Secs. 30.05(13)(d) through (f) to Secs. 30.05(13)(e) through (g); creating new Secs. 30.05(13)(h), 30.05(15)(b), 30.05(15)(c); renumbering current Secs. 30.05(15)(b) and (c) to Secs. 30.05(15)(d) and (e); and repealing Sec. 33.19(12)(d)3.; renumbering Sec. 33.19912)(d)4. through 11. to 3. to 10.; repealing Sec. 33.19(12)(f)1.f.; renumbering Sec. 33.19(12)(f)1.g. to f.; repealing 33.19(13)(d)8. and renumbering Sec. 33.19(13)(d)9. through 13. to 8. through 12., respectively of the Madison General Ordinances to update provisions relating to solar/wind systems, but if approved require actual approval by the Director of the Planning and Community & Economic Development Department, not a designee with the Director empowered to ask for additional advice and feedback from relevant committees and commissions such as the Landmarks Commission and the Urban Design Commission. The motion was passed on a vote of (7-1) with Cosgrove voting no. In its discussion on the motion the Urban Design Commission affirmed its support for solar/wind systems but noted the need to make a strong statement that the State statute and ordinance amendment as presently before it ignore important matters as to design and aesthetics.
7/14/2008SUSTAINABLE DESIGN AND ENERGY COMMITTEEHoffman reviewed the ordinance and the process for approval. Host-Jablonski indicated that the UDC had concerns about the process. The Committee had a lot of discussion about historic districts, process, etc. This included Vickerman, Drummond, Schroeder, Host-Jablonski, Gruder, Hoffman and Compton. Compton suggested putting in some language to deal with Historical Districts and Urban Design Districts. Muench asked how did the ordinance come about? Hoffman mentioned MadiSUN and the code issues in the past. Vickerman explained this issues regarding the State Statutes and the potential litigation that could result if the City doesn’t do something. Compton again suggested that we add some language to deal with the concerns expressed for Historical and Urban Design Districts. Hoffman did indicate that if staff has questions about an applicant they could have the project referred to Landmarks or UDC. Host-Jablonski Moved and Compton Seconded to: Refer #11077 back to the SDE for their August meeting, to invite staff (UDC, Landmarks, Zoning, BI and City Attys staff) and to ask the City Attorney’s office to redraft language that would: Provide a public and transparent process that deals with aesthetics, historical and live-ability issues, such as an appeal process. And further staff needs to come to the August meeting better able to explain the consumer protection aspects of this ordinance. Muench also wanted to know from staff what happens if we don’t do this? Passed unanimously.
Notes:
7/21/2008PLAN COMMISSIONA motion was made by Basford, seconded by Cnare, to RECOMMEND TO COUNCIL TO REREFER - PUBLIC HEARING to the PLAN COMMISSION. The motion passed by voice vote/other.Pass
Notes: The Plan Commission recommended referral of this ordinance for 60 days (September 15, 2008) pending a recommendation by the Sustainable Design and Energy Committee and also recommended that the Common Council re-referral of this ordinance to the Landmarks Commission and Urban Design Commission for reconsideration by those bodies. In recommending referral, the Plan Commission asked that staff provide additional information regarding the impacts of the proposed ordinance on private restrictions and historic tax credit projects, and the noise impacts of wind turbines.
8/5/2008COMMON COUNCILA motion was made by Ald. Clear, seconded by Ald. Verveer, to Rerefer for Recessed Public Hearing to the PLAN COMMISSION. The motion passed by voice vote/other.Pass
Notes:
8/11/2008SUSTAINABLE DESIGN AND ENERGY COMMITTEE
Notes:
9/3/2008URBAN DESIGN COMMISSIONA motion was made by Wagner, seconded by Luskin, to Return to Lead with the Recommendation for Approval to the PLAN COMMISSION. The motion passed by the following vote:Pass
(7:1)
Notes: The motion required that new construction in Urban Design Districts shall require review by the Urban Design Commission consistent with State statute, in addition the record should reflect that the Urban Design Commission adds value and that it has the ability to make decisions relevant to health and safety consistent with the State law, and alternative costs as part of its design review.
9/10/2008LANDMARKS COMMISSIONA motion was made by Levitan, seconded by Gehrig, to Return to Lead with the Recommendation for Approval to the PLAN COMMISSION. The motion passed by voice vote/other.Pass
Notes:
9/23/2008SUSTAINABLE DESIGN AND ENERGY COMMITTEESherrie Gruder indicated there are a lot of documents to review and that this topic was discussed at our last meeting. Sherrie Gruder asked the committee how they wanted to proceed. Satya Rhodes Conway moved approval and Michael Vickerman second the motion to approve. Satya Rhodes Conway had two amendments. At the bottom of 2. (e) 1 a. A small wind energy system shall be located at a distance no less than its total height from: i. any public right of way, unless an easement is granted by the government entity with jurisdiction over the public right of way; ii. any overhead utility lines, unless an easement is granted by the affected utility; iii. all property lines, unless an easement is granted from the affected land owners. Lou Host Jablonski second the motion and offered a suggested that we add the words “mounted on a tower” to describe the wind system. The maker of the motion considered this friendly. The entire committee considered this amendment friendly. Sherrie Gruder wanted it stated for the record that wind turbines are very sturdy and they are sturdier than a tree and the City does not restrict trees. However, she is comfortable with this because Madison does not have a good wind resource and has too many trees and buildings to successfully site wind in the City. Michael Vickerman added that this amendment does make provisions that would allow a wind tower if people understand the issues and MGE might not object because they understand the issues. Satya Rhodes Conway then moved her 2nd amendment At the bottom 2. (e) 1 but before the above amendment Some development that includes solar or wind energy systems may also require approval under other ordinances, including but not limited to Planned Unit Development approval by the Plan Commission, Urban Design Commission, and Common Council; some construction in Urban Design Districts; and Certificate of Appropriateness Approval by the Landmarks Commission. Satya Rhodes Conway moved and Lou Host Jablonski seconded. Satya Rhodes Conway indicated that this amendment means that there is a process and that these projects will still go through. Sherrie Gruder asked if this is approved by the City Attorney’s Office and Satya Rhodes Conway indicated that it was drafted by the City Attorney’s Office. Paul Muench asked if this language impacts the ordinance? Kitty Noonan indicated that it does not. This is a zoning ordinance. There are other processes in our zoning ordinances, like a PUD, that still exist and that projects will still need to get those approvals. This language helps to clarify that. Just because you have solar project doesn’t mean you will not go through the process for a PUD or other types of projects too. Paul Muench ask if by going through the process will these projects be able to reviewed that contrary to this ordinance? Kitty Noonan stated no. That is not the intent; the intent is for these projects to still go through the design process. Judy Compton stated that she doesn’t support this because this language doesn’t do anything and does not provide any process for someone who has a health and safety issue to come to a public hearing. We should table this because of the proposed state statute that is currently being discussed at the state level and then we may need to change this ordinance again, so we should wait. Judy Compton also stated that we don’t have the right to deny but we do need to let the public speak. Finally, she suggested that we deal with solar now and then deal with wind next. Satya Rhodes Conway asked Kitty Noonan to speak regarding approvals to other accessory uses. Kitty Noonan stated that it depended on what type of accessory use. With the chicken ordinance the owner needs to notify neighbors within a 200 feet radius. The issue that she has regarding notification is that if this is not a public health issue and the City can not deny this, then the idea of having a public hearing sets up a false expectation because there is nothing the City can do if there is not a clear public health issue. And again, if one person comes in with a health issue that does not mean there is a public health issue. Kitty Noonan suggested that the ordinance could identify other public health and safety issues like the wind tower amendment and that they could be added to the draft, but it has be recognized as a public health issue, such as there are noise issues and there could be noise limit provided. Kitty Noonan again suggested that simply notifying someone when there is not opportunity to change the outcome is notification that gives a false promise. Satya Rhodes Conway stated that generally she likes more public notification, but that she believes that this issue needs to be address through the re-write of the zoning code. There is a continuum of approval in the zoning and there is a continuum of notification and this should be something that is done through the zoning code re-write because we need to look at public notification all together...chickens, wind turbines, etc. She feels that we will get a better process if we deal with public notification as one item in the zoning code re-write process. Finally, this is not the place to make this type of change. This committee could ask the Zoning Code Rewrite Committee to look at this. Lou Host Jablonski asked about the state statutes that Judy Compton referred to. Michael Vickerman stated that this law, which Renew Wisconsin is working on, will have no impact on the City’s ability through this ordinance because the state statute that is being considered is for standards for commercial systems. The state’s likely action is not regarding residential wind development – but commercial wind development. Judy Compton stated again that it was her understanding is that there were changes that will address residential wind too. She also stated we need to talk about public safety and that there needs to be a process so that the neighbors can be heard, just like conditional use, there is still a process. Satya Rhodes Conway stated that this is a permitted use we don’t have hearings for permitted used. Judy Compton indicated that there could be a new type of process. She also indicated that she has more issues with wind. Solar is ok. Sherrie Gruder asked if there was additional discussion and seeing none she asked for the amendment to be read again. Satya Rhodes Conway read the amendment. Some development that includes solar or wind energy systems may also require approval under other ordinances, including but not limited to Planned Unit Development approval by the Plan Commission, Urban Design Commission, and Common Council; some construction in Urban Design Districts; and Certificate of Appropriateness Approval by the Landmarks Commission. Garrick Maine asked if this language help anything? Jeanne Hoffman stated that this language helps to explain that that UDC and other committees will still be able to review projects. Judy Compton asked does this language do anything? Kitty Noonan stated that the language helps to clarify that projects still need to go through the process whether it is a PUD or other process. Lou Host-Jablonski indicated that as a UDC member, this does provide clarification. For many projects that UDC deals with, all elements of the project are in play this language clarifies that. The 2nd amendment was approved with everyone voting for it except Paul Muench. Lou Host-Jablonski then asked a question regarding the 20% shading. Kitty Noonan stated that this ordinance change is not just zoning codes but all codes including building codes to bring them up-to-date. Satya Rhodes Conway asked for George Hank to talk on this. George Hank indicated that the 20% shading is a consumer protection provision. That the City should not base ordinances on state grants that may not be there in the future. Sherrie Gruder stated that the language sounds like this is a mandate. Kay Schindel and George Hank indicated that the language shown is only the change. With the current language it is clear that if the owner signs off that he/she knows the shading is more that 20% then they can proceed with the project. Michael Vickerman wanted to know what happens to the form? George Hank indicated that it goes into building file. Michael Vickerman asked why isn’t there something in there about angle of the systems. Kay Schindel indicated that that is already addressed in the code. The reason for the 20% change was to make this simpler and this doesn’t prevent anyone from doing it. Lou Host Jablonski suggested that we should create a brochure instead and lets eliminated this language and come up with a booklet with best practices. Satya Rhodes Conway did state that this language is much better than the original language. So we either delete the language all together or accept staff’s language. Michael Vickerman made a motion to delete section 12. (2). Regarding the 20% shading. Judy Compton seconded the motion. Judy Compton suggested that we ask that this be deleted and Plan Commission deal with the draft. Sherrie Gruder indicated that this language does not do any harm. Satya Rhodes Conway asked George if there is consumer protection throughout the code? George Hank indicated that consumer protection is throughout the entire code by stating minimum standards such as insulation standards. This consumer protection is in both the state and city codes, however there are places where the City can be more restrictive. Lou Host-Jablonski asked how far you go with consumer protection in the code and where do you stop. George Hank indicated that a lot of this language was added during the last energy crisis and that the intent was to make sure that the City had the ability to stop bad practices. Sherrie Gruder stated that this issue is not just in the HVAC areas of the building codes that there are issues with other sections and that we should be using the best technology. She also stated that Focus on Energy is working on standards. George Hank stated that if we take all of this out, then there would be nothing the City can do to stop bad contractors because the City needs laws that can be enforced. He further stated that if there was a set of standards for solar thermal that the City could point to – that the City could use this set of standards, but to his knowledge this does not exist. He also stated that the City does use adopted standards for other areas of the code. He again added that if something like that existed for solar thermal, that the City could use that. Judy Compton asked George what does the BI inspectors look for? George Hank indicated that BI inspectors inspect for all state and City codes. Satya Rhodes Conway explained that Chapter 30 deals solely with solar systems and that it is quite extensive. She suggested that unless this committee wants to rewrite this entire section, which she does not recommend, that the committee should accept staff recommendations. Michael Vickerman then amended his motion to completely strike 30.05 (2) entirely and to also delete section 30.05 (1) d... the words... and the shading percentage. Sherrie Gruder seconded the motion. Jeanne Hoffman asked if it helps BI to have this documentation? George Hank again stated that the main purpose of this language is consumer protection and to make sure that the owner knows that the solar thermal system is shaded 20% or more. Sherrie Gruder and Michael Vickerman both indicated that Focus on Energy does this already. George Hank again stated that the City ordinance should not rely on a state program that may not continue and that it is OK for now because Focus on Energy does a good job, but they might not be there in the future. Finally, the City does not change its ordinances very often so the idea of coming back and updating it later is a good idea that does not happen very often. Judy Compton called the question. The amendment passed with Garrick Maine and Satya Rhodes Conway abstaining. Judy Compton proposed an amendment to delete 2. 2. The provision that deals with restrictive covenants. Michael Vickerman seconded the motion. Judy Compton stated that she has a problem with this section. This is not needed, as there is already a statute that deems it illegal to prohibit renewable energy systems through restrictive covenants. Garrick Maine asked Kitty Noonan to speak to this issue. Kitty Noonan stated that there is a state statue where you cannot restrict these systems through restrictive covenants. The idea of putting this in our ordinance is that the City would/could become involved in what would otherwise be a private legal matter. The City would only become involved through a forfeiture of some kind, but it certainly helps everyone know that these provisions in restrictive covenants are not legal. Judy Compton again stated that this language does not need to be there because a state statute already exists. Kitty Noonan stated that if the City wanted to become involved in this through enforcement, then the City would need this language in our ordinance to allow for enforcement. The likely enforcement would be through a citation of some kind. The City does not enforce state statutes. Bill Bremer indicated that he wants to keep this language in the ordinance because it supports to the property owner and encourages solar. Michael Vickerman asked that if the City included this language would the City have the power to stop these restrictive covenants. Kitty Noonan indicated that the City would and then gave the example of grocery stores restrictive covenants where if a grocery went out of business, other grocery could not lease that space. The City passed an ordinance to prohibit that practice. Lou Host-Jablonski called the question. Judy Compton voted yes Michael Vickerman abstained The rest of the committee voted no. Motion is not approved. Sherrie Gruder indicated that we are now at the main motion. The motion passed with only Judy Compton voting no.
Notes:
10/6/2008PLAN COMMISSIONA motion was made by Bowser, seconded by Gruber, to RECOMMEND TO COUNCIL TO ADOPT - RECESSED PUBLIC HEARING. The motion passed by the following vote:Pass
(7:1)
Notes: The Plan Commission recommended adoption of the Substitute ordinance (7 AYES, 1 NO). A motion by Ald. Cnare, seconded by Heifetz, to recommend approval of the zoning text amendment with a condition that a courtesy notice be sent to property as part of the approval and installation of solar and wind apparatus failed on the following vote: AYE: Ald. Cnare, Heifetz; NAY: Ald. Gruber, Ald. Kerr, Basford, Bowser, Olson, Sundquist, Whitaker; NON-VOTING: Fey.
10/28/2008COMMON COUNCILA motion was made by Ald. Sanborn, seconded by Ald. Compton, to Adopt the following amendment. The motion passed by the following vote:Pass
(11:8)
Notes: Strike paragraph 28.04(18)(e)(2).
10/28/2008COMMON COUNCILA motion was made by Ald. Compton, seconded by Ald. Schumacher, to Refer to the COMMON COUNCIL, due back on 3/3/2009. The motion FAILED by the following vote:Fail
(6:13)
Notes:
10/28/2008COMMON COUNCILA motion was made by Ald. Webber, seconded by Ald. Rhodes Conway, to Move the Previous Question. The motion FAILED by the following vote:Fail
(7:12)
Notes:
10/28/2008COMMON COUNCILA motion was made by Ald. Schumacher, seconded by Ald. Kerr, to Adopt the following amendment. The motion FAILED by the following vote:Fail
(10:9)
Notes: Add "Provide public notification to residents within 200 feet when an application is made to install a wind tower (structure)."
10/28/2008COMMON COUNCILA motion was made by Ald. Compton, seconded by Ald. Schumacher, to Adopt the following amendment. The motion FAILED by voice vote/other.Fail
Notes: Add "Applicant would be required to notice the neighbors who are contiguous and abutting. Noticed neighbors would have 30 days to appeal a hearing would need to be scheduled 90 days from notice of appeal."
10/28/2008COMMON COUNCILA motion was made by Ald. Rhodes Conway, seconded by Ald. Bruer, to Adopt With Amendment(s). The motion passed by voice vote/other.Pass
Notes: 3 Registrant(s) in support wishing to speak; 2 Registrant(s) neither in support nor opposition wishing to speak; 6 Registrant(s) in support not wishing to speak.
Approvals
ApproverDateApproval Status
Daniel Bohrod6/26/2008Approved
Michael May6/26/2008Approved
Daniel Bohrod10/15/2008Approved
Michael May10/15/2008Approved
Daniel Bohrod11/3/2008Escalated for Inaction
Michael May11/3/2008Approved
Debra Simon Approved

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