A COMPREHENSIVE WIND SITING ORDINANCE

IN AN URBAN SETTING

Background Paper Prepared by the Environment and Development Clinic

University at Buffalo Law School

May 2004

Written

by

Andrew Montroy

Introduction

The siting of a wind turbine farm raises numerous issues and concerns that must be addressed prior to the actual construction of the wind energy facility. An important question for any municipality is whether to have a specific ordinance addressing wind power developments and what issues such a ordinance should cover. Since the Wind Action Group (WAG) may want to consider proposing some type of model siting ordinance for the city of Buffalo and surrounding urban areas of western New York, the group should be aware of the relevant issues and possibilities. A proposed ordinance could act as benchmark for other municipalities interested in regulating large wind turbines. We have discovered no examples of ordinances for siting wind turbines in an urban setting in the United States.

This paper only addresses siting large wind turbines, not small wind turbines. While there is some overlap between siting large and small wind projects there are significant differences. (Link to the following AWEA website for further details: http://www.awea.org/smallwind.html).

Another important distinction that WAG should recognize is that there are differing considerations relating to the rural landscape than those at an urban landscape. For instance, in an urban setting, the group might want to consider whether the height of the towers should have a maximum restriction. In rural areas, many ordinances have this restriction to minimize visual impacts. However, that might not be as much of a concern considering the other tall structures in an urban setting. Another consideration peculiar to the urban setting is the allowable property on which the turbines are sited in an urban area. For instance, can the property be used as a parking lot. Currently, no provisions address how land should be used concurrently with wind turbines.

The following is a synopsis of the sections of this paper.

In Section One, there is a general overview of issues that both citizens and environmental groups may raise when siting a wind energy facility, and also specific concerns that a siting ordinance may want to include or exclude. For instance, should the ordinance include setbacks, lighting requirements, height restrictions, special district designations, etc..?

In Section Two, this paper examines processes that should be followed, and those that might be recommended to follow. For example, New York State has developed a guide for local authorities concerning wind energy development. Specifically, the document provides an overview of the roles of the Federal Government, New York State and local cities and towns in zoning and permitting wind energy facilities.

In Section Three, this paper draws on the Sierra Club’s comprehensive analysis of appropriate areas for wind siting as well as examples of other ordinances, many of which were established in cities and towns with a relatively small population and less urban surroundings. While the physical surroundings of these ordinances differ, the important aspect of these ordinances are the clear examples of issues that have been included in their laws recognizing that some may be specific attempts to either zone in or zone out wind energy facilities. Finally, this paper will highlight exactly why some of the provisions from the example ordinances might be more relevant than other provisions when considering an urban landscape.

Section 1

A Wind Turbine Farm raises numerous issues and concerns when a city, town, or municipality attempts to institute a siting ordinance. One very important point is the possibility of designating specific areas for wind development as appropriate and others as less appropriate. For instance, relevant to the Wind Action Group is the Buffalo Local Waterfront Revitalization Program’s (LWRP) recognition of the possibility of wind development. Later on this paper will expand on specific designation issues by incorporating industry standards, the Sierra Club’s guidelines and other ordinances. Before expanding on this, it is important to analyze more general concerns when siting a wind turbine. The National Wind Coordinating Committee provides: 1.) a general step-by-step process when siting and 2.) how to involve the community with the entire process. An analogous document providing useful information is British Wind Energy’s: Best Practice Guidelines @ http://www.bwea.com/pdf/bpg.pdf.

The National Wind Coordinating Committee (NWCC) suggests some issues that should be addressed in order to facilitate a smoother siting process. Here are some key points:

i. Significant Public Involvement (specifics highlighted further down).

ii. Issue-Oriented Process

iii. Clear Decision Criteria

iv. Coordinated Permitting Process

v. Reasonable Time frames

vi. Advance Planning

vii. Timely Administrative and Judicial Review Active Compliance Monitoring.[I]

Together these bullets provide a solid overview of a general, but comprehensive, permitting plan. This paper discusses a possible ordinance that incorporate the considerations of bullets #i through v.

Another important aspect looks into the role that the community should play in the entire process. The NWCC suggests a plan in which there is comprehensive community involvement:

viii. Developers consulting with potentially affected or interested persons and giving them the opportunity to comment before proposals are submitted for permit approval.

ix. Permitting agencies notifying potentially affected persons at the time of filing to inform them that a permitting process is beginning and describing how they can participate.

x. Public agencies holding public information meetings at the beginning of the permitting process to inform the public of the project, permitting process, possible issues, and ways they can provide input.

xi. Permitting agencies holding meetings or workshops in the community.

xii. Permitting agencies sending copies of any analyses or pre-decision documents.

xiii. Permitting agencies providing advanced notice to all affected.

xiv. Decision-making agencies allowing formal public involvement in open hearings.[II]

Another example, proposed for Canada, is the flow chart that the Canadian Institute for Environmental Law and Policy (CIELAP) created in order to illustrate the role that municiplities can play in encouraging wind energy development by building early commnity support through consultation and by establishing a clear planning framework for this emerging land use.

For further info go to: http://www.cielap.org/.

Finally, it is important to note that the provisions may differ for various siting ordinances depending on the particular circumstances of the community such as physical surroundings, population density, etc… However, there tends to be some specific provisions that remain throughout varying ordinances. On the following page are some brief explanations, and the provisions themselves are individually analyzed in Section Three:

Ordinance Provisions Description

Zoning Designation	Provision that some ordinances utilize in order to specify where the turbines can and cannot be located
Visual Impacts	Physical landscape can be a determining factor when providing an expansive visual appearance provision. As this paper mentioned earlier, an urban setting provides different challenges then a rural setting.
Setbacks	Essentially the distance surrounding each turbine. For instance, an ordinance may require that each turbine be located at least 200 feet away from residential homes or have a fall zone at least half the height of the tower.
Height Restrictions	Somewhat self-explanatory, mandating a maximum height that each of these towers may be built; some may also require a minimum clearance.
Noise Level Limits	Simply restricts the maximum amount of decibels that any of the turbines may emit.
Lighting Requirements	Addresses the concern for lighting towers beyond the standards of the FAA.

Section 2

This section addresses the overall legal framework for a wind project in New York State and puts any proposed local ordinance in its proper context. New York State Officials produced a document entitled “Wind Energy Development: A Guide for Local Authorities in New York. In the third chapter of the document it highlights the role that government agencies play in the development process by identifying federal, state, regional, and local involvement as well as more comprehensive permitting processes in other states. The most pertinent state process for WAG is the SEQR Act, which is expanded on further in this section below. There is also a more in-depth analysis of the process on the Wind Action Group’s Website:

http://greengold.org/wind/documents/29.htm.

As discussed in the New York wind energy document, the federal government plays a limited role in wind energy development unless construction is on federal lands where NEPA would come into play. The document also points out that the FAA can have controlling authority particularly when height and lighting issues are prevalent. (These are the dimensions of most large wind turbines.) However, “the FAA has yet to establish any standard approach for lighting wind turbines that is consistent across the country.”[III]

There is also another federal agency that may become involved with the process: Fish and Wildlife Service (FWS). According to a memorandum produced by the agency, it made suggestions as to where wind development siting should occur. Essentially, the site recommendations were in areas that would have minimal impact on the “local bird migration pathways or in areas where birds are highly concentrated.”[IV] The document further identifies some high concentration areas of birds, which include: “wetlands, State or Federal Refuges, private duck clubs, and landfills.”[V]

According to New York State Guidelines, there are recommended avenues that an interested wind developer would follow: 1.) the New York State Public Service Commission (PSC), 2.) New York State Environmental Quality Review (SEQR) Act, and 3.) compliance with New York State Department of Agriculture and Markets. (The third point is not relevant to a wind turbine sited in an urban surrounding, so it will not be discussed in this paper).

First, in regards to the PSC, the document points out that New York State does not have specific processes established for wind energy projects, yet “New York State has a consolidated electric generating facility review process that applied to all types of large electric generation facilities.”[VI] This previously fell under NYS Public Service Law Article X which regulates any facility with a capacity of 80 MW or more. However recently, sections of Article X of the Public Service Law that governed the siting of major electric generating facilities expired on 12/31/02. Proposed bills to re-enact Article X died in the legislature in 2002 and in 2003 before the legislature adjourned in June. At the time of publication of this document there have not been any bills which re-enacted Article X. Siting of major electric transmission facilities (125 kV or greater) are reviewed under Article VII of the Public Service Law.  Therefore, after the expiration of Article X, SEQR Act review was required, by default, of all electric generating facilities.

Second, the SEQR Act “requires that local and state agencies give equal consideration to environmental protection, human and community resources, and economic factors when considering proposed actions.”[VII] It is important to note that this process simply acts as an assessment and that a permit does not automatically follow the completion of the assessment. Furthermore, when assessing a wind project the two main aspects of the SEQR are the Environmental Impact Statement (EIS) and Environmental Assessment (EA) forms. The EA occurring first, and then depending on the assessment, a determination if an EIS should follow. Additional information on this Act can be found at: http://www.dec.state.ny.us/website/dcs/seqr/index.html.

Other states have attempted to provide a more comprehensive and “consolidated” siting and permitting process. Two such states are Oregon and Minnesota. In Oregon, “a specific permitting track is identified for wind energy projects.”[VIII] Oregon differs from New York by not requiring a “public need” but requiring a site certificate for any facility that averages 35 MW or more. In addition, Oregon has an “Energy Facility Siting Council, made up of citizen volunteers appointed by the Governor.”[IX] For further details about this council go to: http://www.energy.state.or.us/siting/noise.htm. Also, more general details about Oregon’s siting procedures can be found at: http://www.energy.state.or.us/siting/sitehm.htm.

“In Minnesota, the Environmental Quality Board (EQB) is responsible for issuing site permits to wind projects larger than 5 MW (nominal) in capacity.”[X] One of the most significant aspects of Minnesota protocol is that the EQB “pre-empts local review of the project and eliminates the need for developments to seek project approval from different local agencies.” Further information can be found at: http://www.eqb.state.mn.us/EnergyFacilities/wind.html. Also, for more specific information about the EQB’s rules go to: http://www.revisor.leg.state.mn.us/arule/4401/. Finally, the entire Minnesota statute enacted in 1995 can be found at: http://www.revisor.leg.state.mn.us/stats/116C/.

The final part of this section addresses local involvement and its role in New York State. Essentially, the most relevant aspects of local agencies’ authority are zoning provisions which can vary from county-to-county and town-to-town. A few examples include:

· Town of Fenner, Madison County

· Town of Stockbridge, Madison County (zoning requirements pending)

· Town of Harrisburg, Lewis County

· Town of Martinsburg, Lewis County (All of these discussed in further detail in Section 3).

Section 3

This section analyzes the siting process by examining the most relevant provisions from model and analogous ordinances, both here in New York State and those in other states. Specifically, the provisions analyzed are: Zoning Designation, Visual Impacts, Height Restrictions, Noise Limits and Lighting Requirements. This paper attempts to present what specific issues WAG should consider by looking to provisions from other ordinances while also taking into consideration the differences between these provisions and those that might exist in an urban setting. (The following link from the Washington Center for Energy Research provides an array of sample ordinances dealing with each of the following provisions: http://www.mrsc.org/subjects/planning/energy/E-wind.aspx.)

Zoning Designation

In some instances, municipalities designate specific areas where wind turbines may be constructed and other areas in which these turbines are prohibited. This is an issue that has been considered in the LWRP. More information detailing the plan can be found at the following link @ http://www.city-buffalo.com/Files/1_2_1/Hub/5cityScale.htm.

Similarly, the Sierra Club takes a comprehensive approach by recommending what it considers appropriate areas for siting in a document entitled Sierra Club Wind Siting Advisory Document.[XI] According to the document, the group focuses on land use, avian and wildlife impacts, visual or scenic and noise impacts and safety. Regarding land use, Sierra recommends developed public and private land as suitable for production. It further opposes development in “protected areas such as national and state parks, national monuments, wilderness areas, wildlife refuges, designated roadless areas, critical habitat and designated habitat recovery areas for wildlife, and areas of cultural significance, sacred lands, and other areas that have special scenic, natural or environmental value.”[XII] This was envisioning a rural area, but would include sites such as state parks and nature preserves which can be present in urban areas. Sierra further details what it considers to be most appropriate, less appropriate and inappropriate sites with the most appropriate being on agricultural land and brownfields. Inappropriate areas include national parks, state parks, etc… According to these guidelines, Sierra might discourage siting in a place like Tift Farm, in South Buffalo.

Another group that directly recommends the designation of inappropriate wind siting areas but does so in relation to population density is the Niagara Escarpment Commission. Essentially, this Canadian Commission argues that wind facilities should not be sited in highly populated areas. The following link fully expands on its arguments: http://www.escarpment.org/Publications/Wind_Power.pdf.

An ordinance may limit the siting of wind turbines by zoning: 1.) specific areas for turbines (specific districts), 2.) generally, with creation of an overlay district, 3.) through a special use permit, or 4.) turbine density ordinance.

Specific Districts:

· Mackinaw City, MI – Wind Turbine Generators (WTG’s) are permitted only in the Sewer Plant district. (Most recently amended in August 2003).

District Overlay:

· Wisconsin Model Wind Ordinance (WMWO)-a proposed ordinance by the Wind Power Siting Collaborative (see footnote for further explanation[XIII]) - Wind Energy Facilities may only be constructed in areas that are zoned [insert permitted zoning. See Appendix] and within areas designated as a Wind Energy Facility Overlay District on the official zoning map for the Town/County. (October 2003)

Special Use:

· Town of Fenner, NY- requires granting special use permits in order to build wind energy facilities. These are only granted when certain criteria are met. The following link outlines this criteria:

http://www.greengold.org/wind/documents/27/htm.

Turbine Density:

· Mackinaw City, MI - the minimum eligible site area shall be twenty (20) acres, but a minimum of five (5) acres of site area is required for each WTG tower proposed within an eligible property. Art. XXIII 116.

These examples provide clear illustrations that some municipalities have narrowly defined notions of exactly where a developer may construct wind turbine farms. An ordinance might incorporate more general designation, such as “areas zoned industrial”, or leave even more flexibility through the special use device.

Mackinaw City, MI – Sewer District

Visual Impacts

For many, this is one of the primary concerns about the development and location of wind turbine farms. While some support the construction of turbines in most locations, others are extremely concerned about the trend to build turbines in what they consider more controversial areas. One organization that has expressly conveyed its recommendation where turbines should and should not be located is the Sierra Club. As this paper mentioned earlier, Sierra proposes that certain physical surroundings are not appropriate for turbine construction. The following are some examples of visual impact considerations:

· (WMWO) – a.) Wind Turbines shall be painted a non-reflective, non-obtrusive color; b.) At Wind Energy Facility sites, the design of the buildings and related structures shall, to the extent reasonably possible, use materials, colors, textures, screening and landscaping that will blend the Wind Energy Facility to the natural setting and then existing environment; c.) Wind Turbines shall not be used for displaying any advertising except for reasonable identification of the manufacturer or operator of the Wind Energy Facility; and d.) Electrical controls and control wiring and power-lines shall be wireless or not above ground except where wind farm collector wiring is brought together for connection to the transmission or distribution network, adjacent to that network.

· Rice County, MN - All connecting power lines shall be buried underground. Tower and facilities shall be designed to minimize their visual impact.

· Town of Fenner, NY – No individual tower facility shall be installed in any location that would substantially detract from or block view of a portion of a recognized scenic viewshed, as viewed from any public road right-of-way or publicly owned land within the Town of Fenner.

Another way an ordinance can address visual impacts is by requiring visual simulations:

· Town of Fenner, NY - Digital elevation model-based project visibility map showing the impact of topography upon visibility of the project from other locations, to a distance radious of three miles from the center of the project. Scale used shall depict 3-mile radius as no smaller than 2.7 inches, and the base map used shall be a published topographic map showing cultural features

Further analysis of Fenner’s special use permits is located at:

http://www.greengold.org/wind/documents/27.htm.

Setbacks

As this paper briefly mentioned above, setbacks are a crucial provision of many ordinances because of how the distance affects the other provisions that this paper expands on, such as noise and visual impacts. The following are some examples of setback requirements for wind farms in New York State as well as other states. However, it must be reiterated that these are not urban settings, but rural. Therefore, WAG might want to consider how to incorporate a setback requirement that is appropriate and feasible in an urban setting but suggest some other means of ensuring safety considerations. The following are examples of setbacks in rural areas.

Requiring setbacks from residences:

· Fenner/Stockbridge, NY-1.5 x structure plus rotor radius

· Martinsburg, NY - 1500 Feet

· Mackinaw City, MI - Setbacks must equal half (1/2) the height of the tower including the height of the blade in its vertical position.

· Rice County, MN - Non-owned residence - 750 feet

· WMWO- Inhabited structures: Each Wind Turbine shall be set back from the nearest residence, school, hospital, church or public library, a distance no less than the greater of (a) two (2) times its Total Height or (b) one thousand (1,000) feet.

The high-low range for setbacks varies from the low-750 feet to the high-1500 Feet.

Requiring setbacks from property lines:

· Fenner/Stockbridge, NY – 1.5 x structure height plus rotor

· Martinsburg, NY – 300 Feet (rear and side lot lines)

· Cook County, MN – Tower Height

· WMWO - Property lines: Each Wind Turbine shall be set back from the nearest property line a distance no less than 1.1 times its Total Height, unless appropriate easements are secured from adjacent property owners, or other acceptable mitigation is approved by the Committee.

· Rice County, MN - 200 feet

The range = around 200 Feet to possibly 400 Feet or even greater.

Requiring setbacks from road right-of-way:

· Rice County, MN – 300 feet. (Also, Setbacks shall be increased to the tower fall zone if it is greater that any of the above.)

· WMWO – Public Roads: Each Wind Turbine shall be set back from the nearest public road a distance no less than 1.1 times its Total Height, determined at the nearest boundary of the underlying right of-way for such public road.

Height Restrictions

According to New York State guidance, “height restrictions are a part of most land use plans and such regulations often have an adverse, though unintended, impact on wind turbine installations.”[XIV] One point worth highlighting is that some ordinances appear to establish certain provisions, such as height restrictions in order to prohibit large wind turbine farms. Also, many include some type of low-level above ground clearance as well. The height of wind turbines is a very heated issue because the trend over the last few years has been to build taller and taller turbine with the hope of capturing greater amounts of wind power. Again, in certain areas of an urban setting height may not be as controversial as in a rural setting. WAG might want to consider whether setting maximum height restrictions on the towers is necessary in light of the other tall structures located in an urban area. The following are some examples of municipalities that place certain restrictions.

Maximum height restrictions:

· Rice County, MN - Tower shall be of a monopole type (self-supporting, tubular) and shall be no more than 300 feet in height, except for towers supporting generation units with a rated capacity of less than 40 Kilowatts. Rotor blades shall not exceed 500 feet from the ground. (Enacted 2003)

· Wasco County, Oregon – total height of wind turbine cannot exceed 200 feet. (Enacted February 1989)

· Cook County, MN – limits total height to 200 feet. (August 2001)

The Range = 200 Feet – 500 Feet.

Minimum ground clearance:

· Mackinaw City, MI - The lowest point of the arc created by rotating blades shall be at least twenty (20) feet above ground level at the tower location.

· WMWO - The blade tip of any Wind Turbine shall, at its lowest point, have ground clearance of no less than seventy-five (75) feet.

The range = 20 feet – 75 feet.

An important question that WAG might also want to consider is the reality of technological advances. Should an ordinance establish a fixed height restriction which would prohibit other larger and possibly more efficient turbines. In addition, the ground clearance requirement might need to differ in an urban setting. For instance, a minimum 20 foot ground clearance might not be sufficient from safety concerns in an urban setting.

Noise Limits

Wind turbines do emit some type of sound as a result of the blades rotating and cutting through the air. There are numerous factors that affect the amount of sound emitted from the turbine such as “wind direction, atmospheric conditions, wind speed, vegetation cover, topography and local background noise conditions.”[XV] The Oregon Department of Energy explains that Noise standards for wind energy facilities have been the subject of four rulemaking hearings throughout Oregon with the intent to amend existing regulations in order to facilitate further wind energy development.[XVI] The focal point of most noise, standard ordinances are: 1.) ambient decibel level and 2.) absolute noise amount. Below are some examples:

· Town of Fenner, Madison County – Noise from individual turbines shall not exceed 50 dbA as measured at the boundaries of all the closest parcels that are owned by non-site owners and about site parcels.

· Riverside County, California – 50 to 55 decibels depending on size of project and location. Certain conditions may trigger an acoustic study. Low frequency noise (between 5 to 100 hertz) is limited to 67 to 75 decibels. (March 1993)

· Mackinaw City, MI - The maximum level of noise generated by any WTG shall not exceed sixty (60) decibels as measured on the dB(A) scale, measure at the property line, including downwind. The applicant/owners shall provide certification before and after construction, that the WTG’s do not exceed the maximum noise standard.

· Rice County, MN - Noise shall be limited to a maximum level of 50dB(A) at the nearest property line.

·