International Municipal Lawyers Association - Local Government Blog

Be the First to Feel the Breeze…

May 4, 2009
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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.”


Wind’s Winning Ways

January 27, 2009
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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).

[2]

For a comprehensive analysis of the trade-offs between continuing to use fossil fuels to generate electricity and the aesthetics of wind turbines, see Avi Brisman, “The Aesthetics of Wind Energy Systems,”  New York University Environmental Law Journal, 13 NYU Envtl. L.J. 1 (2005). 
 
 
 

 

 


Wind Blows in New Sheriff to Address Municipal Ethics Concerns

December 3, 2008
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Posted By: Professor Patricia E. Salkin

Amid allegations of corruption, conflicts of interest, self-dealing and lack of transparency in the siting of wind turbines throughout Upstate New York, Attorney General Andrew Cuomo has unveiled a new voluntary code of ethics for wind developers with far-reaching impacts on the conduct of municipal officials. By setting his sights on the industry actors, as opposed to the municipal officials, the Attorney General may have scored a big win in finding an opening to regulate the activities of local government officials who would not have otherwise been subject to the jurisdiction of the Attorney General in regard to these issues.

Wind, a source of free green energy, can be captured through the use of high-standing turbines in areas rich with wind resources and converted to electricity for use by individual, municipal and private sector power grids. So, what’s the problem? It’s a classic land use issue plain and simple – some people think that the turbines are ugly, that they will devalue property, that they are dangerous (e.g., if they should fall, if ice is thrown from the blades, etc.), that they have harmful effects on the environment because birds and bats may get caught in the turbine rotors, and that they create nuisance-like situations with light flicker and with noise. These community members are finding themselves pitted against not only those who support the turbines because of the promise of green energy, but they are fighting their neighbors, a number of whom are receiving financial remuneration from the wind companies for easements to allow access for the construction of the turbines and for lease options to host the turbines on their land. The tension had been ratcheted up by the interests of some local government officials who both have a role in the municipal approval process and who have been offered easement and lease deals by the wind companies.

Municipal ethics 101 – of course municipal officers who have a financial interest in the outcome of a decision should both disclose and recuse themselves from further discussion on such applications. Further, where immediate relatives of municipal officials have such financial interests (usually those residing in the same household and/or dependents for purposes of income taxes), this too should be disclosed and is disqualifying. Sometimes municipal officials find that the issues are not so cut-and-dry when there is no present easement or lease, only the possibility of one that may or may not be realized. When confronted with questions from the public, too often municipal officials get defensive and refuse to answer questions. These scenarios and others led in part, to the production of the Wind Development Code of Ethics.

The Code, which has already been signed by two companies who had been under investigation by the Attorney General and local district attorneys for alleged corruption in their dealings with municipalities, regulates much more than the conduct of wind companies, touching indirectly the world of municipal ethics otherwise regulated by state and local ethics codes and rules. While the signatories to the voluntary Code are the wind development companies, not the municipalities, the Code regulates activities such as gift giving, disclosure, employment, honoraria and confidential information. While a number of these items are generally consistent with modern municipal ethics laws, a two year prohibition on hiring municipal officials (and their relatives) who had anything to do with the wind development application and certain public disclosures that apply not just to municipal officials but to relatives as well, may be the farther reaching than most existing municipal ethics codes. The Code also provides a minimal training requirement for wind company employees (notably not for municipal officials), and establishes a task force to oversee the implementation and enforcement of the Code. The work of the task force is to be funded by the companies who voluntarily agree to adopt the Code.

The bottom line – state attorneys general may use this approach as a template to explore potential involvement in myriad other controversial land use topics such as siting of bog box retail and drilling for natural gas.

The lesson: Municipal Counsel must remain constantly vigilant to remind municipal clients of the ethics rules and regulations that should inform their decision making to most appropriately guide their conduct. Anything less leaves the door open for a new sheriff to ride into town to clean up corruption and abuse.

For other comments/reactions to the Code see:

Law of the Land

Turbulent Time for Wind Development in NY (Newsday)

Wind-Farm Code of Ethics Established (Press Republican)

Editorial: Power Used for Power (Press Republican)


Wind Power Whac-a-Mole™ Wrangling

November 24, 2008
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Posted By: Dwight Merriam, Partner, Robinson & Cole LLP

So, who controls the wind?  Perhaps it is the Greek wind gods, the Anemoi (Boreas, Notus, Zephyrus, and Eurus) or the Roman god, Venti.  In Washington State, it looks like it is Governor Christine Gregoire.

With wind power capable of producing electricity at rates quite comparable with fossil fuel and nuclear, but maybe not hydro, and federal and state economic incentives, the growth has been substantial.  Last year, production grew 45% and over 1% of our power now comes from the wind.  By way of comparison, nuclear provides 20%.

With wind turbines popping up across the landscape, local governments have started playing a game of Whac-a-Mole™ — doing what hey can to regulate the installation of wind turbines.  Often, local governments lump all types together: from backyard systems of 10 kWh or less, to mid-sized systems such as governments themselves might install to power local operations including schools and waste water treatment; to wind farms, the largest of which in the United States may be the Horse Hollow Wind Energy Center, in Taylor County, Texas, with 421 wind turbines and a capacity of 735 megawatts.

If you want to read just one article on the subject, I suggest Professor Ron Rosenberg’s recent contribution.  He spoke on the subject at IMLA’s Nashville conference.  He and I attended to graduate planning school together.  He knows better than most what is going on.  See Ronald H. Rosenberg, “Diversifying America’s Energy Future: The Future of Renewable Wind Power,” Virginia Environmental Law Journal, Vol. 26, p. 505 (2008) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1152405.  He suggests that decision making might be vested in the states with state consideration of local policies. At 543.  He describes the law as “evolving.”

I have a forthcoming article in the Vermont Journal of Environmental Law on backyard wind turbines in which I discuss permissive local regulation for small systems.  The state may not have any real interest in the small systems.

On November 20th the State of Washington Supreme Court handed down a decision in Residents Opposed to Kittitas Turbines v. State Energy Facility Site Evaluation Council, available at http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=813329MAJ.  The Washington State Energy Facilities Site Locations Act governs the relocation, construction, and operating conditions of energy facilities in Washington.  The law creates a process for determining energy facility locations across the state and requires site certification, a binding agreement between the applicant and the State, and conditions of approval that will assure the applicant’s compliance with regulations related to the construction and operation of the facility. 

The Energy Facility Site Evaluation Council is a multiagency body which administers the site certification process.  The county where a proposed facility might be located appoints a representative to the Council for consideration of the application.  The Council holds a hearing on a proposed facility to determine if it is consistent with the county land use plans and zoning laws.

Horizon Wind Energy proposed 121 wind turbine towers in Kittitas County.  The County had adopted a Wind Farm Resource Overlay Zone ordinance.  At the hearing the Council and the County agreed the application was inconsistent with the County ordinance.  There was lots of procedural wrangling and going back and forth.  The decision runs 59 pages, so you’ll have to read it if you want to know all the machinations.

The “bottom line” – and isn’t the world of the blogosphere all about the sound-bite bottom line?  — is that the Energy Facilities Site Locations Act does not violate the state’s Grwoth Management Act in preempting the County’s land use and zoning laws.  There was substantial evidence to support the preemption, adequate mitigation of visual impacts and no violation of the appearance of fairness doctrine.

As Seneca said: “If a man does not know what port he is steering for, no wind is favorable to him.”  The first step in an orderly process of promoting wind power development is to decide who decides….


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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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