International Municipal Lawyers Association - Local Government Blog

Big Wind In Kansas Begets Another Battle

October 31, 2009
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Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP

My favorite movie is The Wizard of Oz, so I couldn’t help but notice the decision of the Kansas Supreme Court yesterday on a wind energy issue in Wabaunsee County.  Zimmerman v Wabaunsee County.

Wabaunsee County is in the eastern part of the state 30 miles west of Topeka.  In 2008 it had 6,922 people in an area of 791 square miles.  The county lies within the Flint Hills, a six million acre grassland ecoregion of hills largely of limestone and shale.  Here is the Flint Hills area in Kansas.  “WB” is Wabaunsee County.

flinthills

The Flint Hills extend into Oklahoma where they are known as the Osage Hills.

The soil is no good for growing crops, so ranching has predominated.  Today, the largely native Flint Hills Tallgrass Prairie, most of it unplowed, is one of the last intact preserves of the ecosystem which once was characteristic of the Midwest just east of the Great Plains.  There’s a Tallgrass Prairies National Preserve in the Flint Hills.

The Flint Hills not only has plenty of steady wind, but it also has a good infrastructure of transmission lines – thus, the interest in commercial wind power.

J.W. Prairie Windpower, the Lawrence subsidiary of a German company, proposed a wind farm. What followed were 54 public hearings with the majority of the people attending opposing the project because it would adversely affect the views.  The County adopted these changes to its ordinance: 

207. Wind Energy Conversion System (WECS). The combination of mechanical and structural elements used to produce electricity by converting the kinetic energy of wind to electrical energy. Wind Energy Conversion systems consist of the turbine apparatus and any buildings, roads, interconnect facilities, measurement devices, transmission lines, support structures and other related improvements necessary for the generation of electric power from wind. 

208. Commercial Wind Energy Conversion System: A Wind Energy Conversion System exceeding 100 kilowatt or exceeding 120 feet in height above grade, or more than one Wind Energy Conversion System of any size proposed and/or constructed by the same person or group of persons on the same or adjoining parcels or as a unified or single generating system. (Commercial Wind Energy Conversion Systems are specifically prohibited as a use in Wabaunsee County.)

210. Small Wind Energy Conversion System. A wind energy conversion system consisting of wind turbine, a tower, and associated control or conversion electronics, which has a rated capacity of not more than 100 kilowatt, which is less than 120 feet in height and which is intended solely to reduce on-site consumption of purchased utility power.

30. Commercial Wind Energy Conversion Systems are not a use that may be approved or permitted as a Conditional Use in Wabaunsee County and are specifically prohibited.

The resolution in support of the amendments explained the rationale for the changes prohibiting commercial wind power anywhere in the county:

The basis of the amendments to the Zoning Regulation is that Commercial Wind Energy Conversion Systems would not be in the best interests of the general welfare of the County as a whole. They do not conform to the intent and purpose of the Zoning Regulations. In light of the historical, existing and anticipated land uses in the County, they would adversely affect the County as a whole. They would be incompatible with the rural, agricultural, and scenic character of the County. They would not conform to the Wabaunsee County Comprehensive Plan, including the goals and objectives that were identified by the citizens of the County and incorporated as part of the Plan. They would be detrimental to property values and opportunities for agricultural and nature based tourism. Each reason stands on its own. This motion is based upon what has been presented at public hearings, public meetings, letters and documents that have been produced, as well as experience and personal knowledge of the issues involved.

The Kansas Supreme Court, in a unanimous decision which may be the first in the country to allow a local government to completely ban commercial wind power, upheld the ordinance prohibiting the wind farm construction on aesthetic grounds, finding it reasonable based on related objectives of protecting ecology, flora and fauna of the Flint Hills.

Here is the Kansas Judicial Branch report of October 30 on the decision.

Justice Lawton R. Nuss, writing for the court, noted that the Wabaunsee County Commission had identified these adverse effects of commercial wind farms:

The Flint Hills of Kansas, of which Wabaunsee County is a part, contain the vast majority of the remaining Tallgrass Prairie, which once covered much of the central United States and which is considered one of the most endangered ecosystems in North America.
Wind farms could have a detrimental effect on the ecology of the area, affecting prairie chicken habitat, breeding grounds, nesting areas, feeding areas and flight patterns. 
Wind farms would not be in the best interest of the general welfare of the county as a whole based on aesthetics, size and scope of the complexes needed for them and their placement on the ridge lines of the county, which make them “objectionable and unsightly.”
Wind farms would be detrimental to property values and opportunities for agricultural and nature based tourism.  The Flint Hills are unique in their ecology, heritage, and beauty.

The court found the ordinance reasonable when it assessed the totality of these permissible governmental objectives, the will of the people, and the wind farms’ lack of conformity with the county’s Comprehensive Plan.

The court left open the question of whether the prohibition might be a taking.  The County Board has argued the “whole parcel” rule – the Board thinks the owners of the wind rights should not be able to segment the wind rights from all of the other rights when they determine the impact on value.  If you are not familiar with the law of the relevant parcel, you may wish to read this article I wrote a few years ago: Rules for the Relevant Parce (double page version).

There is also a Commerce Clause claim still outstanding because the ordinance only allows wind power systems “to reduce on-site consumption of purchased utility power,” essentially limiting them to personal use rather than production and sale of power to others.  Briefs are due on both issues December 11 and oral argument will be on January 27.


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Don’t Bogart that Joint My Friend

October 26, 2009
1 Comment

Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP

Lyrics: Lawrence Wagner
Music: Elliot Ingber

(on the soundtrack of “Easy Rider”)

Chorus
Don’t bogart that joint my friend
Pass it over to me
Don’t bogart that joint my friend
Pass it over to me

Roll another one
Just like the other one
You’ve been holding on to it
And I sure will like a hit

[chorus]

Roll another one
Just like the other one
That one’s burned to the end
Come on and be a real friend

[chorus]

Marijuana is prescribed for certain medical conditions, such as pain relief, control of nausea and vomiting, and appetite stimulation. Since 1996, at least 13 states have legalized the sale of medical marijuana.

Now, check your zoning regulations and see what districts allow this land use:  “Retail Sales – Medical Marijuana.”  Couldn’t find it, right?

I first saw mention of this issue in Longmont, Colorado. It’s legal there and buyers now don’t have to drive into Boulder to get their meds.  Here’s a local proprietor with product to be prepared for sale.  One of his newest patients has had 14 knee surgeries and needs the pain relief.

Larry Hill — owner of the The Apothecary, 1314 Coffman St. — displays a medical marijuana plant Thursday that he has grown and harvested. Hill said he opened his medical marijuana dispensary in February and has “over 50 patients.” Lewis Geyer/Times-Call

Larry Hill — owner of the The Apothecary, 1314 Coffman St. — displays a medical marijuana plant Thursday that he has grown and harvested. Hill said he opened his medical marijuana dispensary in February and has “over 50 patients.” Lewis Geyer/Times-Call

When I started searching for other communities facing the issue of local zoning for medical marijuana sales, it was obvious there is a widespread debate.  Interestingly, Colorado and California, two of the 13 states allowing the sale, have most of the news stories.  Do you suppose their residents in those two states have special needs for pain relief, control of nausea and vomiting, and appetite stimulation?

Aspen, Colorado allows sale anywhere an office is permitted, says the city’s planning director.    

It’s being debated in Brush, Colorado, where there has been discussion (click here and here) about distancing requirements which would put the dispensaries on the same footing as liquor stores and sexually oriented business, hardly the medical treatment model. 

San Diego, California, has created a task force on the subject, but police are reportedly raiding dispensaries, guns drawn, bursting in using battering rams.

Charles Ziegenfelder, owner of PB 420 Cheech & Chong Headquarters, poses for a portrait just minutes before being informed that raids are being conducted at dispensaries in the area. Photo: Sam Hodgson. Courtesy www.voiceofsandiego.org

Charles Ziegenfelder, owner of PB 420 Cheech & Chong Headquarters, poses for a portrait just minutes before being informed that raids are being conducted at dispensaries in the area. Photo: Sam Hodgson. Courtesy http://www.voiceofsandiego.org

And, yes, there is even case law on the subject, from California, of course, where the Court of Appeal, Second Appellate District held that Claremont did not have to zone for the use and that the city could declare the dispensing to be a nuisance, at least where it appears the use is not permitted.  Go here for the actual decision.

For a good model zoning ordinance on “Medical Marijuana Dispensaries”, where else better to go than Berkeley, California?


Local Governments, Cell Phones, and Health

October 13, 2009
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Posted By: Joseph Van Eaton, Matthew Schettenhelm and James Hobson

Do cell phones cause brain tumors or other health risks? At a September 14, 2009 hearing before a subcommittee of the U.S. Senate Committee on Appropriations, leading researchers testified that more research is needed before we definitively have an answer. This renewed attention to the health risks associated with cell phones and towers may mean that local governments, which regulate cell tower siting, may face an increasing number of questions from concerned citizens about the risks of radiofrequency emissions. Local government attorneys should be aware of both the limits upon their authority and the opportunities for local action in this area.

The Health Issues

The evidence of a link between cell phones and adverse health effects has been described as contradictory. Unlike x-rays or other forms of radiation that have been shown to cause harm, cell phones operate in frequencies that produce non-ionizing radiation, which does not independently mutate cells. As a result, many have argued that cell phones do not pose a health risk, and that the current evidence of a link between cellphones and cancer is weak or nonexistent. CTIA, the cell phone trade association, maintains that the “scientific evidence to date does not demonstrate any adverse health effects associated with the use of wireless phones.” This is consistent with the current views of the American Cancer Society, the FCC, and the FDA.

Others cite contrary findings, however, which do suggest reason for concern. For example, researchers have found that people who use cell phones for more than 10 years are more likely to get tumors on the side of the head on which they usually hold their phone; that exposure to such frequencies causes the blood brain barrier to be breached; and that DNA in rats is damaged by exposure to very low levels of cellular radiation. Some also contend that, just as early data failed to show a link between cancer and other harmful radiation, it may be too early to see a definitive link between cell phones and health risks. While these findings and views are now subject to vigorous debate, most do agree that additional research is needed with respect to long-term exposure and the effects on children, who appear to be more susceptible to potential harms. Thus, the placement of wireless antennas at or near schools, and the increasing use by young people of cell phones or other sources of non-ionizing radiation, has come under particular scrutiny by citizens and their elected officials. Several local government actions are noted below.

FCC Regulation

 Acting through the National Environmental Policy Act (“NEPA”), the FCC currently regulates non-ionizing radiation from broadcast, cellphone, and other wireless transmitters, including cell phone towers, pursuant to 47 C.F.R. § 1.1310 and 47 C.F.R. § 1.1310. The FCC also regulates the Specific Absorption Rate (“SAR”) for individual cell phones. The SAR is a measure of the rate at which energy is absorbed by the body when exposed to a radio frequency electromagnetic field pursuant to 47 C.F.R. § 2.1093.

The FCC’s current rules for cell phones date from 1996, and are founded on scientific knowledge of the 1980s and 1990s. The rules are based on avoiding “thermal” harm – that is, overheating of the human body by direct exposure to radiation from antennas or from a wireless receiver itself, such as a cell phone. Under the current standard, before any cell phone is released on the market, it is tested to confirm that its maximum SAR level does not exceed 1.6 W/kg.

In 2003, the EMR Network urged the FCC to reconsider its antenna radiation and SAR standards, arguing that it is dated and fails to consider the potential health risks of non-thermal effects or long-term exposure. The FCC refused to revisit the issue. The FCC maintained that in adopting its regulation, the agency has relied on both standards produced by IEEE and ANSI, and on agencies such as the EPA and the FDA that have primary expertise and responsibility for ensuring health and safety. The FCC said it would reconsider its regulation in the event such agencies or other expert sources found reason for concern.

Local Government Role

With respect to cell tower siting, local governments can only consider the potential health effects of radiofrequency emissions within the limits of the Communications Act. Section 332(c)(7)(B)(iv) of the Communications Act provides that no local government may regulate siting based on the effects of radiofrequency emissions if the facility complies with the FCC’s regulations on the issue. Accordingly, local governments that deny a siting request based on health concerns beyond the FCC ‘s regulations may find their decisions overturned by the courts.

However, while local government’s role in regulating radiofrequency emissions is limited, local entities can bring pressure to bear on Congress and on the FCC to address the health concerns. Some local entities – including Los Angeles County, California; the Los Angeles City School District; Glendale, California; Sebastopol, California; and Pima County, Arizona – have responded to local concerns by calling on Congress to revise Section 332(c)(7)(B)(iv) to allow local jurisdictions to more broadly consider the health effects of cell tower placement in their community. In May 2009, the City of Portland adopted a resolution calling for the FCC to work with the FDA and other relevant federal agencies to revisit and update studies on potential health concerns arising from RF wireless emissions.

Local governments can also educate citizens in this area. Those concerned about the potential adverse effects of cell phones often cite the precautionary principle. They maintain that even if we lack scientific proof of a link between cell phones and adverse health effects, we should take low-cost measures in order to avoid even the possibility of very costly future outcomes. Local governments officials can encourage such low-cost measures. They can urge cell phone users to take very basic steps, such as using a head-set or speaker, that will greatly reduce any potential risk. Local governments can also encourage users to check the SAR level of their cell phone at a site provided by the Environmental Working Group, or by inserting their cellphone’s FCC ID # at the FCC’s webpage.

Conclusions

Local counsel for communities should recognize:

  • This is a hot issue, and it may become hotter.
  • Citizens may want to raise the issue in hearings on particular applications to site cell phone towers. But beyond ensuring compliance with FCC rules, local governments should not allow radio frequency and health issues to become, or even to appear to become, the driving force behind zoning decisions. There are often legitimate reasons for denying a request for permission to construct a cell tower, and decision-makers must focus on those grounds, or risk having a decision overturned.
  • A local government can respond to community concerns without putting its zoning decisions at risk. Local governments can both urge Congress to grant it further authority in this area, and call upon the FCC and other agencies to revisit regulations with respect to cell phones radiation.

About author

This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.

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