SPARTA - At their September 2 meeting, the Monroe County Climate Change Task Force (CCTF) heard from UW-Extension’s Lynn Markham about how to regulate development of industrial solar and wind projects, and data center development. Markham is a Land Use Specialist that operates out of Stevens Point.
“I have worked as a Land Use Specialist since 2000, and a couple of years ago, one of our towns contacted me and said, ‘We have a large solar proposal coming to our town. Can you come help?’ So, I've gotten involved that way and learned about utilities and solar. The data center thing is new to me,” Markham explained.
Markham started with a discussion of energy sources for electricity in Wisconsin. She said that in 2009, solar was the most expensive way to produce electricity, but by about 2016, solar and wind became the least expensive way. By 2019, we started to see utility-scale solar and wind.
“So, what do these costs include? They include building the power plant, including any fuel that’s necessary, and dividing that by the amount of electricity that’s generated,” Markham explained. “These numbers do not include any subsidies that may be provided.”
She said that developers perform a calculation of ‘solar suitability’ in identifying areas for development. Their calculation takes into account a number of physical factors, such as where the transmission lines and substations are located, what the slope of the land is. The solar developers prefer flatter land. What kind of cover is it? Is it ag land? Is it forest land?
“What's not included in this is large single-owner acreages,” Markham said. “Solar developers prefer to work with landowners that have many acres because then they have to negotiate fewer leases in order to get a project moving forward.”
Markham explained that in Wisconsin, 88% of the electricity comes from out-of-state energy sources: coal, natural or fossil gas, and nuclear. Coal is 32%, fossil gas is 40%, nuclear is 16%. Markham pointed out that we have no fossil fuel in Wisconsin. She said that as a result, we pay $14 billion a year to import coal, natural gas, and uranium as energy sources for electricity, for our heating, and for our vehicle fuels.
“Currently, 12%, maybe a little bit more today, comes from in-state energy sources, which include solar, wind, hydroelectric, and biomass, which is mostly burning wood. All energy sources have advantages and disadvantages,” Markham stated. “Currently also, we have about a million acres of field corn in Wisconsin that are grown for ethanol fuel, and solar lease payments in Wisconsin are typically running between $500 and $1,500 an acre. If we think of all the land uses that are whittling away at crop land, whether it's industrial, commercial, roads, residential, it's unlikely that any of those land uses are going to go back to farmland or crops. Solar projects can go back to crops after the 20 to 30-year lease is done, or they can continue in solar.”
Project permitting
Markham said that from a permitting standpoint, when a solar project is proposed, the question is, “how big is it?” If it's less than 100 megawatts, which is around 600 acres, it's decided by local government. Local zoning regulations are limited by state law to standards that relate to public health and safety, not related to aesthetics or other topics. If the project is 100 megawatts or larger, greater than 600 acres, the decision is made by the Wisconsin Public Service Commission, which is three commissioners plus a large staff.
“This is where local governments are choosing when it's a project greater than 100 megawatts, to work with developers to negotiate a contract, putting some standards on those solar projects,” Markham explained. “What is a solar contract? It's local government officials negotiating directly with the solar developers to approve a contract, in which the solar developer and local government basically say what each will do, what their financial commitments are, how they're going to comply with local standards, such as zoning or state standards, for instance erosion control. These solar contracts provide greater certainty, both for the local governments and the solar developer.”
Markham said these contracts are typically called a Joint Development Agreement (JDA). She said they are also sometimes called a “local operating contract.” She said that aren’t really many limits on what can be included in such a contract. She said two things local governments seem to be very interested in include what roads will be used, and if there’s road damage, who will pay for it; and decommissioning – determining who will take it down, and how, at the end of the project life.
“There's also payments to local government called utility aid payments, but there is not a requirement for these developers to make the local school districts and technical colleges whole, so that can be included in these solar contracts,” Markham explained. ‘There’s also, road setbacks, setbacks from nearby residences, noise, glare restrictions, reimbursement for if the local government is hiring an attorney or engineer or both to figure out what's necessary for standards. There can be payments to build community amenities, whether that's a new hall or something like that, and then many of these solar contracts also include conservation commitments, stormwater management that can go above what DNR requires, what kind of vegetation is going to be planted, and how it's going to be managed, and then topsoil preservation, making sure all that topsoil is staying on site.”
Markham said that a JDA is typically seen with the larger developments, and not for smaller ones under 100 megawatts.
Negotiations
Monroe County Sanitation, Planning & Zoning Administrator Alison Elliott asked who typically initiates conversations?
“Some of the developers that have done a number of projects in Wisconsin say, ‘here's our draft JDA.’ That's probably true of most of the developers in Wisconsin, but not all. What we recommend if they're not reaching out to you, reach out to them as a local government because you want to make sure that you get the discussion started,” Markham responded. “The sooner in the process you start it, the more likely you're going to get whatever standards you're after because they're still in the early planning processes. We recommend if you're interested in pursuing a solar contract, that you do it either before the Public Service Commission process or during that one year.”
Elliott asked Markham how counties are typically notified that a developer is looking at doing something?
“I know when the sand mines came in, there were shell corporations buying property. It didn't look like sand mines were buying property. It just looked like some other company was buying, and they were all different names,” Elliott stated. “So, it was challenging to tell what was really going on way ahead of time.”
Markham said she’d seen a mix of things. She said she’d seen developers come to local government six months to a year before applying for a permit. She said that developers typically like to have some land base under lease before talking to local government. Sometimes, they come before applying to the PSC, and sometimes they don’t.
“The other way to find out is working with your Register of Deeds to see if you can find those leases out there,” Markham suggested.
“Our center sent a questionnaire out last fall to 19 counties that had solar projects of 100 megawatts or larger proposed in their county. We got a number of responses from counties and towns, and many of those sent us their solar contracts,” Markham said. “Most solar projects that are 100 megawatts or larger have a solar contract - 16 out of 21. The contracts are also common for data centers.”
Identify priorities
Markham said that one of the critical things local governments should do at the front end of the process in regulating development is to identify community priorities.
“You need to use strong language in a solar contract, language that's binding, not just encouraging. Pay attention to who's responsible for implementing the standards,” Markham urged. “Then, it's important to share that with the contractors and subcontractors who are actually building the project, because that doesn't always happen. “Make sure that it goes down the line so that the people on the ground, doing the work, know what those standards are.”
Markham said that in terms of sharing the workload, counties that were involved in developing a JDA were successful because they shared the workload involved. Typically, the board chair, corporate counsel, highway and road staff, planning and zoning staff, and then also often water, fire, and EMS in the towns.
“To craft the JDA, it took anywhere from three to four, up to seven plus meetings. That probably depends both on how many standards you want to achieve, and the level of experience that people have with developing a JDA,” Markham said. “There are helpful resources available on the Wisconsin Land and Water webpage, including a solar contract process handout.”
Markham said the key points from the materials available are plan early before a solar project is proposed, and identify your community’s priorities. Decide who you would use as an attorney. If you want to negotiate a solar contract, what do you want to address in it? And if you want to participate in the public service commission process, if so, which part? Public comment or being an intervenor?
Data centers
Markham was quick to say she is not a data center expert. For those wanting deeper treatment of the topic, she urges municipalities to reach out to her colleague Karl Green, a community planning specialist. He can be reached at 608-785-9763.
“Local governments do have jurisdiction to regulate data centers in Wisconsin,” Markham stated. “Like zoning for any land use, the zoning provisions have to be adopted before a development application is submitted in order to apply.”
Markham said that local governments can use JDAs as well as zoning, and county rules to regulate data centers. If you have countywide zoning, county rules would only apply to townships that have adopted county zoning.
“You need a definition for what qualifies as a data center. You need to determine which zoning districts a data center will or won't be allowed in. You need to develop standards if a data center is going to be allowed, for instance, in an industrial zone, what standards does it need to meet, and then the administrative processes as well,” Markham said.”
Zoning options
Focusing on zoning, her area of expertise, Markham said that one option would be to allow data centers in industrial districts. She said that if you said they were included in industrial, it would be limited to relatively small areas. She said she doesn’t know of any counties that have allowed them in agricultural districts. A third option would be to list data centers in floating zones - unmapped zones. They're not included anywhere on the county zoning map, and in order to allow a data center, a re-zoning process would be required.
“The city of Menominee has been dealing with some data center proposals, and has updated their zoning ordinance with a floating zone approach,” Markham shared. “They created a new zoning district, and called it I-4. Agriculture is a permitted use in it, and it allows data centers in I-4 as a conditional use. But because it's a floating zone and not mapped, there would need to be a re-zone before a conditional use application.”
Markham explained that a re-zone includes a public hearing, a decision by the governing body, the county board, with plan commission recommendations. If it was town zoning, it would be by the town board, with the town plan commission recommendations.
“There is greater local government discretion or flexibility in deciding a rezone than for a conditional use. And if the area to be re zoned falls under county zoning, the county and the affected towns both have a say in re-zones, Markham said. “If you put data centers in existing mapped zoning districts, whether that's industrial or ag or something else, then it could be decided by conditional use or permitted use.”
Markham said that usually, for large uses that could have significant effects on neighbors, those land uses are listed as conditional uses. Permitted uses have no public hearing, no additional conditions. It's a staff permit through the office for conditional uses. Who decides depends on what your local ordinance says. It could be any of these three: the county board, the zoning committee, or the zoning board. There is a public hearing for conditional uses, and the ordinance standards apply. There is potential to add conditions if they're reasonable, measurable, and relate to the ordinance purposes.
“We had a change in state law a couple years ago that now says a conditional use permit must be granted if the applicant meets or agrees to meet the ordinance standards and conditions,” Markham said. “Thus, there is a limit to what local government can do if it's listed as a conditional use in a district that's already mapped.”
Markham said she’d seen different counties take different approaches to how they get changes in their ordinance.
“Some have chosen to put a moratorium in place to give themselves some time -a year or 18 months - to draft the amendments to the zoning ordinance,” Markham said. “Others have made basic changes in a short time frame, such as which districts are data centers allowed in, and put that through as the first round, and then come back later with those conditional use standards that would need to be met.”
Political processes
Elliott asked Markham if there is any talk of the state taking over data center regulations like they did with the solar wind?
“The reason I'm asking is we spent a lot of time in this county on wind towers and developing a county ordinance, and just when we got a county ordinance in place and we were ready to start processing potential applications, the state came in and took over and said you can't regulate these anymore. It was very disheartening because there was a lot of people involved, a lot of towns involved,” Elliott explained. “The community really came together and discussed that issue, and put a lot of time and effort into it. And it would just be disheartening again if the state then came in after we went through this whole process and said, "Nope, you can't control these anymore.”
Wisconsin State Representative Jill Billings was in attendance at the meeting, and responded to Elliott’s question.
‘There are two plans circulating in the state legislature, one from either side of the aisle,” Billings said. “It's hard to predict what legislators will do, but I think that local control is important to legislators on this issue. There was just a Marquette poll that shows more than 70% of people are concerned about data centers in Wisconsin. The fact that the governor-level people are throwing bombs over this issue tells you that elected officials understand that this is a concern with locals, and they'd be wise to make sure that locals control where these go.”
Billings said this issue remains a priority, and she envisions the legislature taking it up again promptly when they are back in session in January of 2027.
“Is there any sense of how quickly something could be passed?” Elliott asked.
“We reorganize in January, and this is a priority, so probably pretty quickly,” Billings responded.
“We can clearly see the conversation is unsettling to say the least as we move through the challenges in our county,” the Monroe County Land Conservation Director observed. “One thing to keep in mind is that any action as humans that we think is good or bad, there's always a reaction. So again, that's that planning process - thinking proactively, getting in front of things, and that's what we're trying to do in Monroe County.”
