Allen Appointed to Wisconsin Bioenergy Council
In October 2013, Michael Allen, owner and founder of Energy Law Wisconsin, was appointed to the Wisconsin Bioenergy Council by Ben Brancel, Secretary of the Wisconsin Department of Agriculture, Trade & Consumer Protection. The Bioenergy Council was created in 2009 to bring together representatives from varied backgrounds and expertise with an interest in biomass and biofuels to establish best practices for fuel production and make other recommendations to the DATCP Secretary. The Bioenergy Council’s meetings are open to the public, and persons wishing to participate should contact Mr. Allen or visit the Bioenergy Council’s webpage. Mr. Allen will serve a three year term on the Council.
Written on November 25, 2013 at 2:47 pm, by Energy Law Wisconsin
Energy Law Wisconsin in the Community: Paralegal Notes from Leadership Sun Prairie
[This entry was written by Colleen Wenos, describing her initial experiences in the 2013-2014 Leadership Sun Prairie Program.]
Continuing education is a big part of staying up to date, both inside and outside the world of law, so when I heard about the Sun Prairie Chamber of Commerce’s networking group Leadership Sun Prairie, I jumped to apply. Leadership Sun Prairie was created in the mid-1990s to develop future business leaders and promote positive community development in Sun Prairie. Energy Law Wisconsin’s owner, Michael Allen, was part of the team that developed the program.
This year’s crop of 15 professionals, Class XVII, is culled from Sun Prairie businesses and organizations. At each session (one per month September through May), participants concentrate their efforts and learn in depth about a specific sector of the community, with tours, field trips and speakers. For example, while September provided ice breakers and an overview of community involvement information, October gave me a wealth of information on community volunteer needs and opportunities to make a difference, including helping at Sunshine Place, the Red Barn, Big Brothers Big Sisters, Habitat for Humanity, the Colonial Club, and Shelter from the Storm Ministries.
One of the valuable aspects of Leadership Sun Prairie to me is that the other participants and myself are challenged by having to try new things and take on responsibilities with little or no prior notice. I’ve spontaneously delivered meals to seniors and have been given only 15 minutes to create a news segment that was recorded for Sun Prairie’s Community Access Channel KSUN at the Sun Prairie Media Center . Even longtime Sun Prairie residents will learn something new in Leadership Sun Prairie’s comprehensive look at the city, and with themes like health & wellness, education, business and government coming up, there’s more in store!
Energy Law Wisconsin and I would like to thank Wisconsin Distributors, the Colonial Club and Sun Prairie Utilities for meeting space in 2013 and to thank all businesses and organizations who donated their time, resources and people to make it a richly rewarding program. Chris Mertes, Sun Prairie Star Managing Editor, chimes in about his speaking opportunity here.
Written on November 25, 2013 at 12:33 pm, by Colleen Wenos
Summer Tip: A Word of Caution Regarding Vacation Homes on Private Roads
Required Formal Disclaimer: Since this entry involves some discussion of legal principles, there is at least a theoretical possibility that one of you out there may read this blog entry and conclude that: (a) you and I have entered into an attorney client relationship; or (b) I am offering you specific legal advice for your specific legal situation. In the unlikely event you reach either conclusion, I must inform you that sadly, it is not true. Persons accessing this site are encouraged to seek independent counsel for advice regarding their individual legal issues.
This blog most often addresses energy issues, particularly in Wisconsin. However, the summer weather and a client’s recent real estate deal have brought to my attention a concern that is increasingly likely to be encountered by people who own or wish to purchase a home in the Northwoods of Wisconsin and similar rural locations.
If you own a home on private road that is not maintained by the local municipality, you need to check in the real estate records to see whether there is an enforceable maintenance agreement binding current and future owners of homes served by the road. If the answer to this question is “No”, you could find yourself in a bind when it comes time to sell your property.
Fannie Mae, the federal residential mortgage underwriting agency, clarified its underwriting guidelines in 2008 with respect to homes located on a community-owned or privately-owned and maintained street. See Fannie Mae Announcement 08-01 (January 31, 2008). In this announcement, Fannie Mae stated:
“If the property is located on a community-owned or privately-owned and maintained street, Fannie Mae will now require one of the following:
1. An adequate, legally enforceable agreement or covenant for maintenance of the street. The agreement or covenant should include the following provisions and be recorded in the land records of the appropriate jurisdiction:
- Responsibility for payment of repairs, including each party’s representative share;
- Default remedies in the event a party to the agreement or covenant fails to comply with his or her obligations; and
- The effective term of the agreement or covenant, which in most cases should be perpetual and binding on any future owners.
If the property is located within a state that has statutory provisions that define the responsibilities of property owners for the maintenance and repair of a private street, no separate agreement or covenant is required.
2. If the property is not located in a state that imposes statutory requirements for maintenance, and either there is no agreement or covenant for maintenance of the street, or an agreement or covenant exists but does not meet the requirements listed above, the lender must indemnify Fannie Mae for any losses or expenses it may incur due to the physical condition of the street or in order to establish and/or retain access thereto. Announcement 08-01, page 4.
Although this policy has been in place for several years, vacation home buyers and sellers are increasingly bumping into it as we emerge from the recent recession. The impact is that prospective purchasers of homes served by private roads may not be able to obtain financing and owners of such homes may have a difficult time selling them to anyone who requires financing to complete the purchase.
Freddie Mac has not yet adopted such a requirement, but several mortgage professionals my client spoke to have indicated that that it is only a matter of time until Freddie Mac adopts the same policy.
The solution to this problem is for the homeowners who share the private roadway to enter into a legally enforceable maintenance agreement, which obligates them and their successors. This type of a document is not particularly difficult to prepare, but it can be a chore to get it signed by all the right people on the spur of the moment. Existing homeowners who don’t have any immediate plans to sell may be apprehensive about agreeing to an unknown amount of future maintenance expense. It can take time to get everyone on board.
The bottom line is that buyers looking at vacation homes need to make road access issues part of their due diligence and offers to purchase. Persons who own vacation homes served by private roads need to find out where they stand, so that, if possible, they can take the necessary steps to make their property saleable to someone who needs bank financing.
Written on July 12, 2013 at 2:39 pm, by Energy Law Wisconsin
APA and Green Communities Research Center Release Solar Briefing Papers
Over the past year, The American Planning Association, working with the International City/County Management Association (ICMA), the National Association of Regional Councils (NARC), and alongside ICLEI – Local Governments for Sustainability on the SunShot Solar Outreach Partnership, an initiative of the U.S. Department of Energy (DOE), has developed a set of briefing papers covering the following subjects.
Solar Community Engagement Strategies for Planners
Integrating Solar Energy into Local Plans
Integrating Solar Energy into Local Development Regulations
Balancing Solar Energy Use with Potential Competing Interests
Recycling Land for Solar Energy Development
Energy Law Wisconsin was privileged to be part of the team that provided input on the briefing paper “Balancing Solar Energy Use with Competing Interests” and was part of an APA webinar last fall on this topic.
The APA website has a wealth of resources on solar planning and other APA research. We encourage you to visit the website and take a look around.
Written on February 14, 2013 at 11:50 am, by Energy Law Wisconsin
Allen to Speak at Upcoming American Planning Association Webinar
On September 18, 2012, the American Planning Association (APA) will be hosting a webinar titled “Balancing Solar and Other Potential Competing Interests in Communities”. The webinar is one of the activities that the APA has undertaken as a participant in the SunShot Solar Outreach Partnership, an initiative of the United States Department of Energy.
The webinar will focus on community planning decisions when other interests compete with solar energy development. The two competing interests that will be addressed are tree preservation, which will be addressed by Michael Allen, and historic preservation, which will be addressed by Kim Kooles, policy analyst with the North Carolina Solar Center.
The webinar will take place from noon-1 p.m. CST on September 18, 2012. Registration for the webinar is free.
Written on September 3, 2012 at 12:53 pm, by Energy Law Wisconsin
Energy Law Supports Local Library’s Book N It Run/Walk
On August 4, 2012 the entire Energy Law Wisconsin family joined the Sun Prairie Public Library Foundation‘s 9th annual fundraising Book N It Run/Walk. The team expended its own energy 3.2 miles for this good cause, complete with two children and an antiquated stroller. Energy Law Wisconsin has long supported the Sun Prairie Public Library, going back to the late 1990s, when Attorney Michael Allen served on the library’s Board of Trustees in the 1990s and worked on many of the Foundation’s formative legal documents. The Foundation reported its biggest turnout ever for the event, which is great news, as past proceeds have funded displays in the children’s Early Literacy area and the Radio Frequency Identification (RFID) project (immediate book check-in software). Energy Law’s youngest reader, Isaac, enjoyed meeting Sun Prairie’s mascots and shared this hug with the “Book N It Guy”. Our calendar is already marked for next year’s event, on Saturday, August 3, 2013.
Written on August 21, 2012 at 2:33 pm, by Energy Law Wisconsin
Speedskater Luke Tweddale: A Different Kind of Energy
Photo credit: Mike Bernico
With the 2012 Summer Olympics in full swing, we’d like to depart from our usual practice of profiling recent developments in the world of energy resources and focus on a different type of energy: the energy of an aspiring Olympic athlete. No one typifies this type of energy better locally than 18 year oldlong track speedskater Luke Tweddale
of Madison, Wisconsin. Luke last represented the U.S. at the Junior World Championships in Obhiro, Japan in March 2012. Energy Law Wisconsin has been a proud sponsor of Luke’s training and competitive efforts for several years now.
We thought it would be fascinating to gain some insight into the “personal energy” that an athlete
like Luke brings to his pre-Olympic journey. So we posed Luke a few questions, which he was kind enough to answer.
What motivates and inspires you to put in the long hours of work necessary to become a competitive long track speedskater at the international level? What is your ultimate goal?
Well, as far as motivation, nothing gives me more fuel to keep going than skating a great race. My motivation comes from a desire to make every race a great one, or at least make the spaces between those good races significantly shorter. My ultimate goal is to represent my country in the Olympics. I can imagine no greater honor than carrying the pride of this great nation into the Olympic Stadium alongside my teammates.
You’ve been training for a number of years now and have also had the opportunity to interact with many outstanding speedskaters, including Olympic medalists like Casey FitzRandolph and Shani Davis. Are there any particular characteristics that you have experienced or observed that are critical to becoming competitive and, equally important, to keeping balanced, through the process of training and competition?
Absolutely. There are two modern speedskaters who come to mind as shining examples of attributes I wish to have for myself. The first is Jilleanne Rookard, 2010 member of our Olympic Long Track Team. In 2009, few people outside of Milwaukee knew the extent of her abilities, and she had faced some considerable challenges to pursuing her dream.
She excels because she has the courage of utter conviction.
The second skater is John Richard “JR” Celski, 2010 Short Track Olympian. JR was up against the most celebrated American short track speedskater, Apolo Anton Ohno, at the 2008 World Team Championships in Vienna, Austria. JR had just made his first senior World Team, and was very new to the arena.
He not only swept Apolo, but became third overall in the world, behind two Korean skaters who are some of the most talented skaters in history. He was only 20 at the time. In addition, at the 2010 Olympic Trials, JR sustained a catastrophic injury during the quarterfinals of the 500-meter, in which he cut his entire upper leg open, right on the all-important quad muscle. However, he skated to bronze in the Olympics a mere five months later. That kind of recovery can only be attributed to an unbreakable spirit.
With the Summer Olympics in progress, are there any athletes or teams from the 2012 U.S. squad that you find particularly inspiring?
Missy Franklin, a swimmer and world record holder, is the personification of not only a great Olympic athlete, but a great human being. From everything I’ve heard and seen, Missy seems grounded, modest, kind, and most impressively, surprisingly carefree for such a serious athlete. Add to that the fact that she’s only 17 and the only word for her is unique. The way her parents put it is that she’s a normal teenager who just happens to have a gift for swimming. That’s how I want to be, not just a skater, but someone worthy of note beyond the 17-day period of the Olympiad.
What are the lessons you’ve learned from your speedskating career to date that you think you will carry with you the rest of your life, regardless of whether you continue to skate for many years or turn your attention to something else?
One important lesson that I have learned is how to be committed to something and to see it through to the end. Every time I finish a race, even if it wasn’t a terribly good one, I can say, “I saw that race through, and I didn’t give up.” It’s a great approach to life.
Another hard lesson I’ve learned is that, since so much of life nowadays, both in professional and sporting careers, is results-oriented, if you don’t produce, you’re labeled as not very valuable or noteworthy, regardless of your other attributes. It’s easy to feel like you’re only as good as your list of achievements, but that has never been my philosophy, even when I’m pursuing a specific goal like skating a perfect 500-meter sprint. The thing is, in 15 years, no one will care that you won a medal in the National Championships or even in the Olympics. You’ll be judged on your personal attributes, which endure forever, not on your fastest times, which you can usually only skate once or twice in a relatively short period of your life.
What question would you like to be asked that you have never been asked? How would you answer it?
I’m rarely asked about the series of steps that have led up to where I am now, or the series of steps that will hopefully lead me to the Olympics in the future. I also notice that most interviewers never ask Olympians this question, probably because the answer can’t be condensed into a sound bite. The public only sees these athletes once every four years and focuses on their brief performances. However, whatwe see during the
Olympics is not remotely representative of the full effort it takes to compete at that level. I like to use the metaphor of the 10,000-hour rule, which is generally how long it takes to become a true expert at something. You do it and do it and do it until you have it down perfectly. There are numerous training sessions, some brutal, some boring, some fun. If you take all that training, mix in some mental preparation, a big dose of family support, and good old-fashioned hard-headedness, then you are ready to perform for a few blissful (or catastrophic) moments at the Olympics. The process is methodical, measured, and concerted.
Too often, I feel that athletes are only judged solely on the basis of a single performance, which you see in a vacuum during a time of extremely high stress which is not conducive to the highest performance that an athlete can achieve, and which is not indicative of that long and laborious process. Because the Olympics are so popular, it is an unavoidable fact that a lot of people, coaches, media, family, and the public put athletes under tremendous pressure to win when the whole world is watching. We devote our lives to our sports, sometimes for decades, and those long years of effort should be appreciated and recognized more.
If people are interested in learning more about and/or supporting the efforts of you and other hardworking U.S. speedskaters, where can they look to follow and/or support all of you?
There are several great ways to support us, but one thing we all appreciate is an enthusiastic crowd! Please come to the Pettit National Ice Center in Milwaukee on November 2, 3, and 4, and cheer for the top U.S. long track speedskaters during the World Cup Qualifier and American Cup 1 competition, which is usually free of charge to spectators. Better yet, put on some skates yourself! Visit the Pettit website above, or the website of your local ice arena
for public skating times and costs. Finally, we send out a monthly email update on my progress during the skating season – feel free to send a message to Dad at firstname.lastname@example.org and ask to be added to our mailing list.
Energy Law Wisconsin wishes Luke the best in his future endeavors. We’ll be watching his upcoming races with interest!
Written on August 6, 2012 at 10:46 am, by Energy Law Wisconsin
Crowdfunding in the Energy Arena: A Child of Necessity
“Necessity is the Mother of Invention” – Unknown
If “Necessity is the Mother of Invention”, then crowdfunding could be considered one of Necessity’s healthy and growing offspring. Generally speaking, “crowdfunding” refers to a growing phenomenon through which people who wish to individually provide relatively modest amounts of financial support for a creative project can pool their resources and collectively raise a significant amount to permit the project to go forward. These pooled funds are used to finance the creative endeavors of artists, musicians, and inventors, among others, with projects ranging from concert tours, to independent films, to inventions and recently to renewable energy projects, such as installing solar panels on the home office of a non-profit organization.
How does Crowdfunding work? Crowdfunding comes in different varieties of business models. Some crowdfunding efforts are limited to donations in support of a project. Others involve pre-purchases of products and some involve the sale of securities to investors. This last variety of crowdfunding and persons who promote it as intermediaries will be receiving attention from the Securities and Exchange Commission in the coming months, as discussed in greater detail below.
Crowdfunding is typically accomplished over the Internet and a growing number of internet sites provide a forum for interested patrons to pool their resources in support of projects they deem worthy. One well known crowdfunding site is Kickstarter. It is important to remember, however, that not all crowdfunding sites operate by the same rules. Some require that a project seeking funding obtain its full funding target before the money is released to the project developer; others will turn over whatever is raised regardless of whether the targeted funding level is achieved.
Crowdfunding in the Energy Arena. A recent example of crowdfunding success in the energy arena is the tPOD1 developed by Tellurix. The tPOD1 is a device that converts thermal electricity from a small source, such as a tea candle, to an electric current, which is then used through a charger to repower small mobile electric devices, such as cell phones, iPods, etc. One of the possible applications of this invention would be for outdoor enthusiasts, who might need to recharge a mobile device to make an emergency phone call or send a text message. Tellurix sought to raise $85,000 via Kickstarter. It met its goal on June 22, 2012 and as of July 15, 2012, had raised $111,697.
Another forum for crowdfunding in the energy arena is the New Generation Energy website. This site limits fundraising to non-profits and allows the public to donate to “green energy projects” at nonprofits nationwide. On a recent visit to the site, I saw requests for projects that included high-efficiency lighting and HVAC equipment, solar PV systems, and a geothermal energy system.
While not crowdfunding in the strict use of the word, a new company in Oakland, California, Mosaic, Inc., is in the process of raising $2.5 million to fund a crowdfunding-like platform specifically for solar projects. Mosaic, Inc.’s website says that it is currently in a “quiet period” following its April 24, 2012 filing with the SEC to offer “Solar Power Notes” to investors. In response to my initial online request for more information, Mosaic, Inc. informed me that the initial launch of its platform will not include Wisconsin. Additionally, Mosiac, Inc’s services do not constitute “crowdfunding” as described in Title III of the Jumpstart Our Business Startups Act (JOBS Act), according to their website.
How might Crowdfunding be Helpful for Renewable Energy Projects in Wisconsin? Crowdfunding offers renewable energy projects developers, particularly solar projects undertaken by nonprofits, a source of funding that can be well-suited to their needs. Crowdfunding can address one of the biggest barriers to project development: the high initial capital cost of a project. Moreover, single building solar PV projects are often in the price range (10s to 100s of thousands of dollars) where crowdfunding business models and platforms may be able to help in raising funds without expenses that are disproportionately large relative to the size of the project.
Crowdfunding may turn out to be particularly helpful for Wisconsin nonprofits, who currently face daunting project development barriers in that they cannot: (a) directly take advantage of the benefits of tax credits and depreciation to assist in financing a project; and (b) indirectly take advantage of such tax benefits through leases and power purchase agreements with third parties without the third party risking being deemed as acting as a unregulated public utility.
Legal Issues with Crowdfunding. From a legal perspective, crowdfunding is a new phenomenon and is getting increasing regulatory attention, particularly where the sale of securities is involved. In the JOBS Act signed into law of April of this year, Congress amended Section 4 of the Securities Act of 1933 to create a new exemption for offerings of “crowdfunded securities”.
According to FAQs about Crowdfunding Intermediaries published by the SEC in May 2012, the exemption would apply to issuers of such securities when they offer and sell when they offer and sell up to $1 million in securities, provided that individual investments do not exceed certain thresholds and the issuer satisfies other conditions in the JOBS Act, some of which will require rulemaking by the SEC”. It is important to remember that the exemption will not be available until after the SEC has adopted rules creating the new exemption.
Crowdfunding has already had a significant impact on the entrepreneurial marketplace. A news article from May 2012 estimated that crowdfunding raised $1.2 billion globally in 2011. It is likely to receive additional attention in the future.
Early commentators are split on whether by the time the SEC issues its final crowdfunding rules, crowdfunding will remain a viable avenue to raise funds from small investors or whether it will be choked by onerous disclosure requirements and red tape. It will be interesting to see the requirements that the final SEC crowdfunding intermediary regulations establish for such intermediaries and future crowdfunding portals.
Written on July 9, 2012 at 11:50 am, by Michael Allen
Community Solar: Finding the Model That’s Right for You
An example of a community solar project: Convergence Energy Solar Farm in Walworth County, Wisconsin.
Required Formal Disclaimer: Since what follows involves some discussion of legal principles, there is at least a theoretical possibility that one of you out there may read this blog entry and conclude that: (a) you and I have entered into an attorney client relationship; or (b) I am offering you specific legal advice for your specific legal situation. In the unlikely event you reach either conclusion, I must inform you that sadly, it is not true. Persons accessing this site are encouraged to seek independent counsel for advice regarding their individual legal issues.
I have attended a number of public presentations over the past several weeks about community solar. What I have taken away from these presentations: First, there is a high degree of interest in promoting community solar in Wisconsin. Second, the legal underpinnings of community solar are not well understood by the general population. This blog post is an attempt to shed a little light on this area.
The term “Community Solar” is not a universally understood term with the same meaning in every context. Rather, it is a general expression used with different meanings at different times, like the word “green” when referring to environmental and sustainability benefits. In my own usage, the term “Community Solar” has a broad and a narrow meaning:
Broad Definition: An effort by a group of people (or community) to promote the development of solar energy through a collective effort, frequently when some or all of the members of the group lack the ability or financial resources to own and operate a solar energy system on their own property.
Used in this sense, community solar can include utility and other green power programs and renewable energy credit (REC) aggregation efforts in which individuals make contributions, municipal utility “adopt a solar panel” programs, as well as all organizational structures and models for community investment in solar that are included in the narrower definition. It could even include “crowdfunding” to support a solar project. (ELW will address crowdfunding in an upcoming blog post.)
Narrow Definition: This narrower concept means a collective effort by a group of investors (this could include equity investors and/or lenders) to develop an entity or organization to own and operate a solar energy system and make a financial return on their investment. Examples of this would include all of the following, among others:
- A group of homeowners who can’t individually afford the entire up-front cost of a solar energy system or whose roofs are too shaded to permit effective production of solar power, pool their funds to purchase interests in a limited liability company that owns a solar energy system.
- A group of tenants within a building who wish to put solar on the roof get the rights to lease the roof of the building to install a solar energy system and create a co-op in which each of them is a member, getting the use of the solar power produced by the solar energy system and furnished to the building.
- A homeowner or business owner who has most of the funds necessary to purchase a solar energy system, but needs to borrow funds that it cannot get a loan for from the bank enters into a series of loan agreements with friends or investors, each of whom will lend a portion of the money necessary to get the system owner “over the top” in financing the system. In return, the system owner guarantees them a fixed interest repayment over the loan term.
Which Type of Community Solar is the Best? This is a question that is complex and requires careful consideration of all of the following before the project is commenced:
- The regulatory scheme of your state, and, if you are in a regulated utility market, what business models are permitted without being deemed to be acting as a regulated utility.
- The buyback rate (if any) and tariffs offered by the local utility who may be the power purchaser.
- Whether the primary use of the system will be to self-serve, act as an independent power producer (selling the electricity to a utility), or to serve other third parties.
- Whether the project can be set up to take advantage of federal tax incentives, including the Investment Tax Credit and accelerated depreciation.
- The rate of return that has to be offered to investors to get them to participate and whether the business structure necessary to secure such participation requires compliance with state and federal securities laws.
While answering these questions may seem daunting, the good news is that there are a growing number of people, the author of this blog included, who are devoting their time to developing community solar business models and the supporting documents to implement them. There is also a lot of room for creativity to meet the specific needs of individuals who wish to participate in community solar. Also, there are an increasing number of resources being developed by government agencies, utilities and others to assist people in finding the resources they need to develop community solar projects.
Written on June 26, 2012 at 3:34 pm, by Michael Allen
U.S. DOE Debuts Solar 3.0 to Reduce Soft Costs of Solar PV
This spring the U.S. Department of Energy launched Solar 3.0, as part of the SunShot initiative, which initiative aims to dramatically decrease the total costs of solar energy systems by 75% before the end of the decade and make solar energy cost-competitive with conventional forms of electricity without subsidies. Solar 3.0 aims to reduce “soft costs” (i.e., non-equipment and hardware costs) of solar photovoltaic (PV) by 50% by 2014. It is designed to adapt to the needs of major U.S. cities and addresses certain community challenges that slow solar PV development, including permitting rooftop systems and training. Solar 3.0 works by promoting regulatory innovation, rather than technological innovation.
Solar 3.0 is managed by SolarTech, which is a consortium of stakeholders in the solar industry. One hundred initial cities will be targeted in S2012’s initial stage. Eligible communities will receive a resource tool kit with curriculum, metrics, and information about continuing education.
Wisconsin is one of the 2012 Target States for the Solar 3.0 program, and in fact is the only such target state in the Midwest.
How can you keep pace with the new initiative? Visit www.solar30.org to keep informed by signing up to receive e-news or follow Solar 3.0 on LinkedIn.com.
Written on June 21, 2012 at 1:15 pm, by Colleen Wenos