July/August 2025 Issue

Also in this issue: Wisconsin Supreme Court Decision Limits Legislative Oversight of Administrative Rulemaking     |     U.S. Supreme Court Eases Standard for Plaintiffs to Prove “Reverse Discrimination” Claims

Circuit Court Judge Upholds Local Wind Siting Ordinances

Richard Heinemann | 08.04.25

A Marathon County Circuit Court Judge has dismissed a lawsuit filed by a wind developer, Marathon Wind Farm LLC, that had sought to nullify the wind siting ordinances of the Towns of Brighton and Eau Pleine as being overly restrictive and thus violative of state law.

The case has been closely watched as a litmus test on the enforceability of local siting ordinances that impose requirements for the establishment, operation, and permitting of wind energy systems (MLN July/​August, 2024).

The decision in Marathon Wind Farm LLC vs. Town of Brighton and Town of Eau Plaine (May 19, 2025, Case No. 2024CV000394)(​“Marathon Wind Farm”) includes a detailed analysis of the interplay between local siting authority, state statute, and the regulatory role played by the Public Service Commission of Wisconsin (PSCW).

The case arose through a complaint filed by the developer seeking declaratory and injunctive relief from the town ordinances, which contain an initial licensing period of 15 years with a renewal term of ten years; pre-application consulting and detailed application requirements; decommissioning requirements; compliance monitoring; and a host of ​“subjective criteria” such as zoning or land-use designations, a review of ​“net economic liability” to the region, environmental and land use concerns.

The towns moved to dismiss the complaint, arguing that the developer had failed to state a claim upon which relief can be granted and, in particular, that the ordinances do not violate state law and are therefore valid. The developer objected on procedural grounds without briefing the merits of its position. The Court rejected the developer’s procedural arguments and granted the towns’ requested relief after undertaking a detailed legal analysis of the merits of the case.

Citing Ecker Bros. v. Calumet County, 2009 WI App 112, ¶21, 321 Wis. 2d 51, 772 N.W.2d 240, the Court hinges its analysis on the notion that the legislature expressly gives political subdivisions ​“the power to assist in the creation of renewable energy systems and thus become an integral and effective factor in the State’s renewable energy goal”. Thus, the restrictions in local siting authority contained in Wis. Stat. §66.0401(1m) do not require local ordinances to simply ​“parrot” PSCW regulations (Marathon Wind Farm at 7).

With respect to license term and renewal, for example, the Court rejects the developer’s claim that a local ordinance is more restrictive than state statute when it includes a specific time limit for an initial license term and a renewal procedure because PSCW rules and accompanying guidelines expressly contemplate that local authorities must have a procedure to monitor compliance, even though the rules do not use the word ​“license” or specify a specific time period for the initial term or renewal period.

Similarly, on the inclusion of the various ​“subjective criteria” in the ordinances, the Court emphasizes that a local government remains subject under Wis. Stat. §66.0401 to a reasonableness standard and must issue its decision with written findings of fact supported by evidence that are subject to administrative review. The Court reasoned that in this instance the developer’s complaint was unwarranted because the PSCW rules expressly limit the discretion of the local authorities by also subjecting them to a reasonableness standard. Here, according to the Court, that standard was met because the factors at issue concern safety, zoning, economic impact, health risks, nature, radar effectiveness, and impacts on the military, all of which are reflected in state law, explicitly enumerated in Chapter 128 of the administrative code and included in the PSCW’s application guidelines. Hence, ​“the subjective criteria listed in the ordinances are not a basis to invalidate them” (Marathon Wind Farm at 17).

In the absence of the developer’s briefing on the merits of its legal challenge to the town ordinances, Marathon Wind Farm is not definitive precedent that local governments have free reign to impose standards that may be deemed overly restrictive by wind developers. Quite the contrary; the case underscores the importance of drafting wind siting ordinances that adhere closely to the framework of PSCW rules and its guidance for local authorities.