Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP
One objective of this weekly land use blog is to provide the most current information and report on matters you might otherwise miss through normal channels. Yes, the big cases and developments are covered, but this week I went behind the news, wrote to a company official named in a story, and just this morning acquired a decision worth reading which is not yet officially reported.
The case comes out of Fayette County, Pennsylvania. CLICK HERE for the story reported in the paper on Saturday and updated yesterday.
This is about a special permit/conditional use. If the standards are met, it should be approved providing there is unrebutted substantial evidence of compliance. It has the twist of involving a substantial wind farm project.
PPM Atlantic Renewables proposed to erect 24 wind turbines along 3.5 miles of Chestnut Ridge to generate enough electricity, 50.4 megawatts to be exact, to service 17,000 homes. It submitted 20 – count ‘em – 20 special exception applications. Two townships with a single Zoning Hearing Board (ZHB) – the third has its own ZHB which granted the requested special exception – voted to deny, largely on the grounds that the towers were too tall and would kill bats.
Judge Ralph C. Waxman, in a 33-page decision, held that the ZHB had abused its discretion in denying the applications. CLICK HERE for the decision, available exclusively from IMLA.
People complained of the appearance and implied it would hurt tourism.
Judge Waxman said: “The Objectors seem to assume that just because the turbines would be added to the Chestnut Ridge viewshed that this would cause a negative impact. The Objectors presented no expert testimony to support their position and they admit that there is no way to predict if people will stop coming to the area due to the turbines. While the concept of the general welfare of a community in zoning matters includes a consideration of aesthetics, aesthetics alone cannot support a determination that the health, safety and general welfare of a community would be adversely affected by the grant of a special exception.”
The court found that PPM had met its initial burden and that the burden had shifted to the objectors to rebut the presumption.
“Since the ZHB has exclusive jurisdiction to hear and render final adjudications in applications for variances, and upon consideration that the ZHB has failed to do so in this case, we remand this action back to the ZHB for further proceedings consistent with this opinion. The ZHB shall consider and grant each special exception as required by law, and may impose whatever conditions they deem fit to protect the health, safety and general welfare of the community.”
The County apparently supported the project. Two of its commissioners voted to intervene in the appeal on the side of the wind power developer. One commissioner, after the court decision was issued, is reported in the Herald-Standard article as saying: “There [is] some optimism that Fayette County will participate in something that is not only good for the county and our commonwealth, but also our nation. I hope the project comes to fruition.”
Posted By: Adrian Herbst, The Baller Herbst Law Group, P.C.
On Monday, January 26, 2009 HR 1 was introduced to the 111th Congress. This Bill as an Act is cited as the “American Recovery and Reinvestment Act of 2009” (“Act”). For the full text connect to: http://www.rules.house.gov/111/LegText/111_hr1_text.pdf. For a summary of the broadband portion of the Act prepared by the Committee on Energy and Commerce, connect to: http://energycommerce.house.gov/images/stories/Documents/Markups/PDF/broadband%20stimulus%20language%20%28ec%29.pdf. Although the Act contains numerous provisions, with over 650 pages, and titles of importance to state and local governments, this article briefly describes the part of the Act which provides for broadband stimulus, including $6 billion for infrastructure development.
The National Telecommunications and Information Administration (“NTIA”) is directed to create a national “broadband inventory map” that identifies the geographic extent to which broadband service capability is available. In addition, it includes the requirement that the NTIA establish “wireless and broadband grant programs.” The purpose is to provide for a comprehensive nation‑wide inventory of existing broadband and to establish grants that will stimulate the development of broadband infrastructure for economic development and the availability of wired and wireless broadband throughout the country. The needs and priorities will be identified by each state and at least one grant must be available in each state. The following provides a brief summary of grant funding and purposes:
· Grants will be available for rural open access broadband with 50% to be awarded no later than September 30, 2009.
· Grants for wireless deployment and broadband deployment for the development of basic broadband service and advanced broadband service capabilities.
· Grants to fund state broadband tracking initiatives; with the NTIA, to develop and maintain broadband inventory maps of the United States.
· Grants for wireline to be split 75% for advanced broadband in underserved areas and 25% for basic broadband in unserved areas.
· Grants for wireless to be split 75% for advanced broadband in underserved areas and 25% for basic wireless in unserved areas.
The Act requires the FCC to define in much greater detail the meaning of “unserved” and “underserved” areas. This should not be construed as limiting the extent of the grant program and, by way of example, NATOA has developed a list of projects that can be initiated in a matter of months, and completed within approximately two years. For the NATOA list connect to: http://www.natoa.org/policy-advocacy/documents/NATOACBBexamples.pdf.
It is important for state and local governments to begin to think about the importance of the Act and the broadband portion and identify state and local priorities. The time periods under the Act for submitting grant requests will, as currently written in the Act, be somewhat short as it is very clear that the intention is for fast action to enable rapid economic recovery. Further, the Obama administration has made it clear that this Act and the stimulus and economic recovery programs to be initiated by the Obama administration are absolutely essential for our national recovery, including jobs creation and business stimulation. This Obama administration has sent a clear message to Congress of the importance of taking action at an early date. An understanding of the Act and its relationship to state and local governments requires prompt attention to state and local government plans, and goals for economic development and improvement will be ready for submittal of an application for participation in the wireless and broadband grant programs.
There have been numerous articles regarding economic stimulus programs and the goals and policies of the new Obama administration. While the Obama administration has made it clear that this Act, and in particular the broadband portions of the Act briefly outlined above, are a good start, they do not meet the full extent of the administration’s goals for infrastructure development necessary for economic recovery as well as advancing the state of broadband capabilities throughout the country.
Our purpose in writing this brief overview of the American Recovery and Reinvestment Act of 2009 is to bring to the attention of IMLA members and local officials the importance of the Act for state and local governments and to set the stage for subsequent articles about this Act that we will include as postings to the IMLA Blog as the Act winds its way through Congress and its ultimate passage.
Posted by: Dwight Merriam, Partner, Robinson & Cole, LLP
With increasing concerns about global climate change, carbon footprints, sustainability and the price of oil, everyone seems to be looking for alternatives to produce electricity. Surprisingly, it is believed that there are only 4,000 residential small wind turbines in the country, so there remains the potential for rapid growth.[1] Wind power is the best alternative in terms of the lowest cost per kilowatt hour among the technologies that are practical and reasonably available.[2]
Electric generators come in a wide variety of shapes and sizes from a few hundred watts such as might be used to provide additional power on a small boat or to run a water pump in a distant farm field, to a 50 kW or larger unit where the basic enclosure for the wind turbine is the size of a city bus.
While much has been written on planning for regulating large wind farm systems, there is a surprising lack of information about what local governments can and should do about the smallest of systems, the backyard wind turbine systems. How do we plan for them? How should they be regulated? What should local officials be doing to assist homeowners in making decisions about the installation of residential wind turbines?
I have an article on the regulation of small “backyard” wind turbines forthcoming in the Vermont Journal of Environmental Law in which I attempt to answer these questions, at least in part. Professor Ronald H. Rosenberg made a great presentation on the subject of wind power generally at IMLA’s Nashville meeting in October 2007. His comprehensive article is “Diversifying America’s Energy Future: The Future of Renewable Wind Power,” Virginia Environmental Law Journal, Vol. 26, p. 505 (2008) and is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1152405. It’s the place you want to start it if you need to get up to speed quickly.
One of the best places to go to keep up with latest developments is National Wind Watch, Inc., which is — in its own words — “a nonprofit corporation that promotes knowledge and raises awareness of the negative environmental and social impacts of industrial wind energy development.”I don’t find the news they report all that negative and I have not found a better source for local developments in planning and regulation. Information, analysis, and other materials are available on its website, http://www.wind-watch.org. You can sign up for its news feed at http://www.wind-watch.org/lists/?p=subscribe. Their channel on YouTube is www.youtube.com/windwatchorg.
This last week the site reported on a zoning amendment initiative which may make good sense (especially since I suggest it in my upcoming article…) – eliminate most regulations for smaller systems under a certain capacity and height.
The hot issue right now is the Cape Wind project off of Cape Cod, opposed by Senator Kennedy and supported by Massachusetts Governor Patrick – both close to President Obama, who wants to promote sustainable, renewable power. For the latest news on the project, go to this recent Associated Press report. http://www.google.com/hostednews/ap/article/ALeqM5iynzQewvfjpZVZhSlaj5eMCohGXAD95V13SO0. The final environmental impact statement supporting the project has just been issued. http://www.mms.gov/offshore/AlternativeEnergy/PDFs/FEIS/Cape%20Wind%20Energy%20Project%20FEIS.pdf.
[1]Kristin Dispenza, “Cities Look into Changing Zoning Laws to Accommodate Wind Power Generators” Energy, Energy Production (June 24, 2008 ) available at http://greenbuildingelements.com/2008/06/24/cities-look-into-changing-zoning-laws-to-accommodate-wind-power-generators/. An overview of the issues is found in Michael Donohue, “Siting of Wind Power Developments,” Zoning and Planning Law Report, Westlaw 28 NO. 4 ZPLR 1 (April 2005).
