An ordinance protecting developers, but residents not so much
The North East Township supervisors seem determined to use a wind energy ordinance designed for the benefit of wind developers and the few land owners who have leased their property to them. The revised draft ordinance was presented at the July 1st meeting, incorporating changes made since their first draft on April 15th. You can download a copy of the revised ordinance here. (UPDATE: Revised again to reduce setbacks. See below.) It has been sent to the Erie County planning office for comment, after which it will be returned to North East, when a public hearing must then be advertised and scheduled.
Here’s a look at some of the sections and unresolved serious issues:
H. Turbine Height shall not exceed five hundred fifty (550) feet.
Since the first draft, a height restriction was added for a maximum of 550 feet, because, as we noted before, supervisors had not included any limits in the original draft. The height seems to be growing since the drawings shown in the supervisors meetings indicates 500 feet and the turbines may actually be taller than that. Do you really understand how tall a 500 foot wind turbine actually is? You’ll see them from everywhere and they cast a long shadow, … literally.
What does this ordinance apply to?
Section 4. APPLICABILITY:
A. This Ordinance applies to all Wind Energy Facilities proposed to be
constructed after the effective date of the Ordinance, except that this Ordinance is not intended to apply to stand-alone Wind Turbines less than two hundred (200) feet in total height and constructed primarily for residential or farm use on the property where the Wind Turbine is located.
Turbines installed for residential or farm use, if under 200 feet in height, are unregulated by the ordinance.
How many local farmers and other property owners, now signing leases to host these 500 foot tall monster turbines, have shown any interest in installing these smaller and far less intrusive turbines with their own money? Others in North East have installed smaller turbines on their own, why are these new turbine advocates suddenly in favor of “green energy” only when taxpayers and electric rate payers like you have to pay for it? What other “green energy” projects have they done on their own? It seems, as we’ve noted so many times, this has nothing to do with their alleged support of “green energy,” it’s simply a way to collect government handouts at your expense.
Section 9. SETBACKS.
A. Occupied Buildings. Wind Turbines shall be set back from the nearest Occupied Building a distance of not less than five (5) times the Hub Height, as measured from the center of the Wind Turbine base to the nearest point on the foundation of the Occupied Building.
B. Property lines. All Wind Turbines shall be set back from the nearest property line a distance of not less than the normal setback requirements for that zoning classification, 1.1 times the Turbine Height or one thousand (1,000) feet, whichever is greater. The setback distance shall be measured to the center of the Wind Turbine base.UPDATED: The supervisors voted to REDUCE the setbacks by using a formula of 1.75 times the turbine height without any minimum distance, so the 1000 foot setback no longer applies.
C. Public Roads: All Wind Turbines shall be set back from all public roads a distance of not less than 1.1 times the Turbine Height, as measured from the nearest right-of-way line of the public road to the center of the Wind Turbine base.
1000 feet 1.75 times turbine height from the property lines of any non-participating land owner, five times the hub height to any occupied building and 1.1 times the hub height to any public road.
This is completely inadequate. Setbacks should be a MINIMUM of 500 meters or 1640 feet as recommended by turbine manufacturers. With the new formula, a 500 foot turbine could be only 875 feet from a property line. Think about that.
Have supervisors overstepped their authority?
In the last meeting, one supervisor stressed repeatedly that our insistence on a minimum 1300 foot setback based on the 1300 foot safety radius as stated in the Vestas manual, was incorrect since the Vestas number only applied in an emergency situation. In an emergency, they would require evacuation of anyone within that distance, even if they are not hosting land owners.
So, he and the other supervisors have chosen to intentionally, for the benefit of certain individuals hosting turbines, place the property of non-participating owners within that safety radius, knowing those affected may have to be evacuated from or restricted from using, some portion of their own property in the case of an emergency.
If a hosting landowner knows there may be an emergency evacuation within 1300 feet of a turbine placed on his property, that is his voluntary decision to put himself, his family and his property under that potential risk, but a non-participating property owner, who has not signed any such agreement, should never have any portion of his property deliberately placed within that emergency zone, a completely preventable occurrence if proper setbacks are used. This infringement would have a dramatic effect on neighboring property values, knowing a portion of the property was within an evacuation area for a wind turbine, an inclusion the owner never agreed to. What compensation would be offered for this involuntary loss of value? Is this theft of immovable property?
§ 3921. Theft by unlawful taking or disposition. (b) Immovable property.
A person is guilty of theft if he unlawfully transfers, or exercises unlawful control over, immovable property of another or any interest therein with intent to benefit himself or another not entitled thereto.
Does the 1000 foot setback fit this definition of theft? Let’s see.
Identifying a portion of neighboring immovable property (real estate is immovable property) and placing it in an emergency evacuation zone, is exercising control over that portion of the property to which no one other than the owner is entitled to exercise control. The benefit to that other person, not the land owner, is the ability to place an income generating turbine in a location that would not be allowed without the ordinance. It seems to fit the definition.
It seems the setback requirement is being written to accommodate one particular land owner who will not be able to install turbines with a 1300 foot setback instead of being drafted in the interests of all of the residents of North East Township. Are North East Township supervisors now advocating the writing of ordinances specifically for the benefit of one individual? A law or ordinance applicable to a class of individuals, (in this case either land owners or residents of North East Township) should be written for the benefit of everyone it applies to. The guiding principle should be to answer the question, “How can we write this ordinance to best protect the interests of all residents?” not “How can we write this ordinance so this specific person can do what he wants.” If this setback wasn’t specified to satisfy the needs of one individual, it will be interesting to hear the scientific and technical basis used by the supervisors to justify this setback of 1000 feet. Another interesting legal question.
This 1300 foot setback requirement does not prevent any other land owner from installing turbines and, therefore, does not “zone out” or “ban” wind energy in North East Township, a situation the supervisors and solicitor keep warning against and which we are not demanding. If one particular land owner cannot place turbines on his property in a safe manner as specified by this setback and without infringing on his neighbor’s property as outlined above, that in no way prevents others from leasing their land if they so choose and can place turbines accordingly. If the developer needs that one specific land owner for their wind energy project to make economic sense or for any other reason, that is a business decision for their benefit only and is not the result of any ban as a result of this ordinance.
However, another major turbine manufacturer, Nordex, has a newer manual, written just two years ago in July of 2011, where they have an emergency procedure section referring to turbine fires. Here’s what they say:
DANGER FALLING TURBINE PARTS
In case of a fire in the nacelle or on the rotor, parts may fall off the wind turbine. In case of a fire, nobody is permitted within a radius of 500 m from the turbine.
There’s that 500 meter (1640 foot) distance again. So the emergency evacuation distance isn’t the safety radius of 1300 feet, it’s actually 1640 feet.
Now, remember, in the proposed North East Township wind energy ordinance, setbacks to occupied buildings, like the home of someone who is a non-participating land owner are set out like this:
Wind Turbines shall be set back from the nearest Occupied Building a distance of not less than five (5) times the Hub Height, as measured from the center of the Wind Turbine base to the nearest point on the foundation of the Occupied Building.
With a hub height of something like 300 feet, (we don’t know the exact number because no one has publicly disclosed the exact model of turbine the developers want to install), the total setback to a house would be 1500 feet, 140 feet inside the emergency evacuation zone. This means not only will some portion of his property be in the emergency zone, his house will be in the zone, too!
Again, landowners who have signed no agreements with any wind developers, will have their homes placed, without their permission, inside an emergency evacuation zone for a turbine on neighboring property. Township supervisors are insisting that landowners who want turbines should be accommodated in their desires without regard for their neighbor’s safety or obvious loss of property value.
Section 12. LOCAL EMERGENCY SERVICES
A. The Applicant shall provide a copy of the project summary and site plan to local emergency services, including paid or volunteer Fire Department(s).
B. Upon request of the Township, the Applicant shall cooperate with emergency services to develop and coordinate implementation of an emergency response plan for the Wind Energy Facility.
Emergency plans will be interesting to see, since local fire departments have no equipment capable of reaching or dealing with fires at the 300+ foot height of a wind turbine rotor. We’ve already noted what the repercussions of a fire that must burn itself out, might be. Land owners hosting turbines seem willing to gamble with the safety of the surrounding area since a wind turbine fire may spread, especially if flaming debris falls on dry brush or trees, requiring the fire department to chase that debris wherever it may land. Are you willing to take the same chance?
Section 13. NOISE AND SHADOW FLICKER
A. Audible sound from a Wind Energy Facility shall not exceed fifty (50) dBA, as measured at the exterior of any Occupied Building on a Non-participating Landowner’s property. Methods for measuring and reporting acoustic emissions from Wind Turbines and the Wind Energy Facility shall be equal to or exceed the minimum standards for precision described in AWEA Standard 2.1 -1989 titled Procedures for the Measurement and Reporting of Acoustic Emissions from Wind Turbine Generation Systems Volume I: First Tier. Upon request of the Township, the Facility Owner and Operator shall institute testing and provide all data showing compliance.
This section needs substantial modification and requires more comment than can be included in this post, however, a few points should be mentioned.
During our investigation, Vestas was contacted and they stated that noise is an issue and they have found an ordinance written in South Australia to be the best out there. It must be repeated, this ordinance was brought to our attention by Vestas! It is not hard to read and it’s very interesting.
The entire document is online, but here are a few quotes and a short summary:
Wind farms need specific guidelines because wind turbines have unique noise generating characteristics and the environments surrounding wind farms usually have low ambient noise.
Most wind farm sites are within or next to areas where low ambient noise levels are a significant component of that area’s amenity. These might include rural living zones or zones that are not intended to be subject to any other significant ambient noise sources from adjacent premises.
The predicted equivalent noise level, adjusted for tonality in accordance with these guidelines, should not exceed:
• 35dB(A) at relevant receivers in localities which are primarily intended for rural living*,or
• 40dB(A) at relevant receivers in localities in other zones,or
• the background noise by more than 5dB(A),
whichever is the greater, at all relevant receivers for wind speed from cut-in to rated power of the WTG and each integer wind speed in between.
A ‘rural living’ zone is a rural−residential ‘lifestyle’ area intended to have a relatively quiet amenity. The area should not be used for primary production other than to produce food, crops or keep animals for the occupiers’ own use, consumption and/or enjoyment. The noise amenity should be quieter than in an urban−residential area.
What those few quotes say is that the noise should be no more than 35dBA in a rural-residential environment (like North East) and no more than 40dBA in an urban-residential area. Why does the ordinance the supervisors are submitting say “shall not exceed fifty (50) dBA?” What is the scientific and technical basis used by supervisors for the 50dBA number? Was it simply chosen because the short setbacks in this ordinance will make it impossible to adhere to the recommended levels? That is 15dBA higher than recommended in the noise ordinance referenced above.
Vestas now says that a 400 to 500 meter (1,300 to 1,640 ft) setback is required to maintain 45dBA. Again, both recommendations are far beyond the 1000 foot setback called for in the North East ordinance.
Creating huge animosity in every community where turbines are installed is not good for the business of wind energy or any wind turbine manufacturer. It is only when over zealous wind developers and agreeable local officials try to force turbines into areas too populated for proper placement (like North East) that problems arise. Far greater setbacks can alleviate much of the problem and many communities in the US and around the world are beginning to insist on that very requirement. Our local officials would do well to take heed of developments now happening everywhere, it seems, other than in North East.
Once a turbine is installed, what happens if the noise level requirements are not met? One suggestion would be to make the developer fix the problem at the turbine within a set period of time, no more than 60 days. There should be nothing required of any non-participating property owner. If the developer cannot meet the noise requirements after that time, the turbine should be shut down and removed.
Of course, the developer will probably go to great lengths to not do that, saying the noise is within limits and offering some “fixes” to the property owner like extra insulation or some such thing, which is why there should be a very clear procedure to be followed. Who will measure the noise, who will determine if any problem has been fixed, and if not, who will make a ruling to take the turbine down. This is also a great reason for a fund held in escrow in the bank, to be used to carry out the removal if the developer refuses.
B. The Facility Owner and Operator shall make every effort to minimize shadow flicker to any Occupied Building.
This is entirely inadequate. There must be no shadow flicker whatsoever on any property of a non-participating land owner. If a hosting land owner wants to subject his own family to shadow flicker without concern for their well being, that’s up to him, but neither he nor township supervisors, have the right or authority to impose his or their disregard for the welfare of others upon his neighbors.
Section14. SIGNAL INTERFERENCE.
The Applicant shall make every effort to avoid any disruption or loss of radio, telephone, television or similar signals, and shall mitigate any harm caused by the Wind Energy Facility.
This is a hold over from the original draft and is inadequate. The desire of certain land owners to host wind turbines on their own property does not give them the right to interfere with the radio, telephone or television signals of anyone else in the surrounding area. The word “mitigate,” which simply means “minimize,” allows far too much leeway for interpretation in determining when the problem is “fixed,” it must be replaced with the word “eliminate.”
If you have a satellite dish for your TV, like DISH network or DirectTV, you can have degraded reception due to wind turbines. Hosting land owners don’t seem to care about your reception. Do you?
If you use a cell phone in the North East area, your phone reception can be affected. Some of you may have only cell phones and no landline at your home. Suppose you have to call 911, are you willing to take the chance that their effort to avoid and minimize interference is enough to guarantee that 911 connection if you need it? Hosting land owners aren’t concerned with your 911 calls or any other calls. Are you?
All North East residents MUST read this ordinance. You need to know what it says and how it will affect you. You’re paying for this with your tax dollars and higher electric rates, don’t ignore it! Wind turbines will have ZERO POSITIVE BENEFIT to North East residents. The ONLY residents to benefit in any way are those who have leased their land and are anticipating payments as a result. If there are any other benefits anticipated by township supervisors, those benefits should be clearly explained to township residents.
Don’t wait to find out about these turbines. If they are built and you only learn about them later, it will be too late to make any changes or voice your opinion. The time to learn and voice your opinion is now.