Wisconsin Voids Subdivision Covenants Against Solar and Wind

Section 236.292 sits in Wisconsin's subdivision plat chapter and is titled "Certain restrictions void." Subsection (1) voids restrictions that interfere with development of the Ice Age Trail under § 23.17. Subsection (2), added by 1991 Wis. Act 39 and amended by 1993 Wis. Act 414, voids all restrictions on platted land that prevent or unduly restrict the construction and operation of solar energy systems or a wind energy system. Two words in that sentence do the work. "Void" means the covenant is a nullity rather than something an owner must apply to escape: there is no variance process, no architectural review deadline, and no requirement that the owner ask first. And "construction and operation" means a covenant cannot be salvaged by allowing panels to be installed and then restricting how they are used, oriented, or maintained.

What counts as a protected system is fixed by cross-reference, and the definitions are narrower than the headline suggests. A solar energy system is defined in Wis. Stat. § 13.48(2)(h)1.g. as equipment which directly converts and then transfers or stores solar energy into usable forms of thermal or electrical energy. A wind energy system is defined in Wis. Stat. § 66.0403(1)(m) as equipment and associated facilities that convert and then store or transfer energy from the wind into usable forms of energy. Rooftop photovoltaic arrays, ground-mounted arrays, solar thermal collectors and residential wind turbines fall inside those definitions. Equipment that does not convert energy into a usable thermal or electrical form is outside them, which is why § 236.292 does not reach clotheslines, drying racks, rain barrels or landscaping choices.

The other boundary is the phrase "restrictions on platted land." Section 236.292 protects owners of lots in a subdivision plat recorded under ch. 236, the ordinary Wisconsin residential subdivision. A condominium is not created that way: under Wis. Stat. § 703.11 a condominium is described by a separate condominium plat filed in the register of deeds' condominium plat book, and the Attorney General has advised that the requirements of ch. 236 may not be used to legally describe condominium units, 75 Atty. Gen. 94, an opinion the Legislature prints as an annotation to § 703.12. A Wisconsin condominium owner therefore should not assume § 236.292 clears a declaration that bars panels on the roof of a building that is a common element; the condominium route runs through the declaration, the bylaws under § 703.10, and the 67 percent amendment vote in § 703.10(5).

The companion restraint on government is Wis. Stat. § 66.0401, and Wisconsin courts read it strictly. In State ex rel. Numrich v. City of Mequon Board of Zoning Appeals, 2001 WI App 88, 242 Wis. 2d 677, 626 N.W.2d 366, the court of appeals called § 66.0401 a legislative restriction on the ability of municipalities to regulate solar and wind energy systems and held that it is not superseded by § 66.0403 or by municipal zoning or conditional use powers. In Ecker Bros. v. Calumet County, 2009 WI App 112, 321 Wis. 2d 51, 772 N.W.2d 240, the court held that the statute demands a case-by-case approach such as conditional use review, that a political subdivision may not find legislative facts or make policy, and that it may not promulgate an ordinance arbitrarily setting a one size fits all scheme of requirements for any system.

Separately, Wis. Stat. § 66.0403 lets a Wisconsin municipality with zoning authority create a solar access or wind access permit that restrains neighbors rather than associations. The protected window, the collector use period, is 9 a.m. to 3 p.m. standard time daily. An agency grants a permit if it will not unreasonably interfere with the municipality's land use and development plans, if no neighbor has shown present plans to build an obstructing structure, and if the benefits to the applicant and the public exceed any burdens. A neighbor defeats the application by showing a building permit application filed before notice, at least $500 spent on planning or designing the structure, or other credible evidence of substantial progress. Granted permits are recorded with the register of deeds against both the collector property and every restricted property. Blockage by a narrow protrusion such as a pole or wire is not an impermissible interference, and neither is vegetation planted before the last notice went out unless the municipal ordinance says otherwise. Section 66.0403(12)(a) is explicit that a permit is not a precondition to installing a system at all, and § 66.0403(12)(b) preserves the separate renewable energy resource easement available under § 700.35.

292 provides no penalty and names no enforcement agency, because it does not need one: the offending covenant is void, so an association that records or enforces an anti-solar restriction on platted land has nothing to sue on. An owner facing enforcement raises the statute defensively, and an owner who wants certainty before spending money can bring a declaratory judgment action in circuit court to have the restriction declared void. Where the dispute is with a neighbor rather than an association, the remedies are in Wis.

0403(7). 0403(7)(b) entitles the permit holder to a permanent injunction requiring the trimming of offending vegetation, again with damages, costs and fees. 0403(9) the agency terminates the protected rights if the system is permanently removed or goes unused for 2 consecutive years excluding repairs, or if it is not installed and functioning within 2 years after the permit issues, and the holder gets written notice and an opportunity for a hearing first. 0403 may be appealed to the circuit court under sub. (8).