Proposed Wind Power Facilities Law Now Before Planning Board
By Chris Hoffman
(Madison, NY- Feb. 2013) On Feb. 6, at the regular meeting of the Planning Board of the Town of Madison, Roger Williams, Chairman of the Wind Advisory Committee and also Chairman of the Planning Board, presented a proposed Wind Power Facilities Law and Committee Report for consideration by the Planning Board. However, the Planning Board declined to discuss the proposed law at the public meeting and instead scheduled a closed workshop for Monday, Feb. 11 at 9 am. Members of the Wind Advisory Committee were invited to attend the workshop in order to answer any questions that might arise.
The following morning, all members of the Wind Advisory Committee received an email from Williams rescinding that invitation and advising them of the Planning Board’s decision to “officially discharge” the Committee – a decision made after the Planning Board meeting the night before had been adjourned.
After being advised that it would violate the Open Meetings Law because no public notice was published and the public would be excluded, Williams cancelled the closed workshop.
The next steps are not clear. The next regular Planning Board Meeting is scheduled for March 6 at 7 p.m. at the Town Offices located at 7358 Route 20, Madison.
In the meantime, Madison Matters, Inc. sponsored an educational forum on Saturday, Feb. 9 to explain the law to interested residents. No one on the Town Planning Board attended.
The proposed law, if passed, would replace the existing Windpower Facility Special Use Permit Regulations for the Town of Madison, a law believed by many to be inadequate to deal with the complicated issues inherent in industrial scale wind energy facilities.
The proposed law creates specifically defined terms used consistently throughout the body of the law; declares that no Wind Energy Facility can be constructed, modified, or replaced unless a permit has been issued by the Planning Board pursuant to and in accordance with the proposed law (the one exception to this provision pertains to Small Wind Energy Conversion Systems used solely for agricultural or farm operations in an agricultural district); prohibits the sale or transfer of any permit or Industrial Scale Wind Energy Facility (ISWEF) without a showing of the transferee’s financial worthiness and its assumption of all of the transferor’s obligations; and creates an important distinction between Nonparticipating Property Owners (NPOs) and Participating Property Owners (PPOs) that reflects an attempt to create a balance and an element of choice.
An NPO is a property owner who has no contractual agreement with the Applicant. The proposed law creates for NPOs the greatest possible protections against interference with their lives, their homes, their property, their safety, and well-being. A PPO is a property owner whose land or any interest therein is leased, optioned, or otherwise encumbered by a contractual agreement with the Applicant or any affiliate of the Applicant. The law attempts to accommodate the decision of PPOs to live with the turbines near them.
The proposed law would require a permit to construct and operate a wind measurement tower (WMT) and would mandate that the Applicant notify all property owners within 7,500 feet. It sets forth the requirements and the application process and establishes standards for the development and operation of any WMT, including a height limit of 150 feet and a minimum distance of 3,560 feet between a WMT and the nearest property line of any NPO.
For small wind energy conversion systems (Small WECS), consisting of a wind turbine, a tower, and associated control or conversion electronics, which are intended to primarily reduce on-site consumption of power and are owned and operated by the property owner, the proposed law limits production capacity to 100kW and height to 150 feet and mandates the distance between a Small WECS and the property line of the nearest NPO to not less than 10 times the turbine height, including the vertical extension of the blade.
Application and notice requirements and development and operation standards for industrial scale wind energy facilities (ISWEF) are more detailed in the proposed law than those governing WMTs and Small WECS. An ISWEF is defined as one or more wind energy conversion systems, each with a turbine height in excess of 150 feet and each producing in excess of 100kW, designed primarily to deliver electrical power to the grid, together with all access roads, electric systems, underground collection lines, substations, and other components incidental to operation.
Application requirements for an ISWEF include a fully-executed PILOT Agreement or evidence of the Town’s exercise of its right to opt out of the tax exemption provisions of the State Tax Law; evidence that the applicant controls the property necessary to build the proposed ISWEF; and a complete site-specific Environmental Impact Statement, which the Planning Board must accept before a public hearing pursuant to SEQRA (State Environmental Quality Review Act) can be scheduled.
The proposed law would mandate a minimum setback of 3,560 feet from the property line of any NPO; 2.5 times the turbine height between each ISWEF and 2.5 times the turbine height from any residence or structure; and 2,600 feet or eight rotor diameters, whichever is greater, from state-identified wetlands and public highways. Additionally, no ISWEF could exceed preconstruction, preoperational background noise by more than 5 dBA (a-weighted decibels). The proposed law requires a preconstruction noise study conducted between midnight and 4 a.m. and establishes strict sound measurement standards and procedures for preconstruction and operational testing, as well as enforcement measures.
The proposed law would also limit the turbine height of an ISWEF to 390 feet, would require the applicant to test the water supply of any property owner within 7,500 feet, and would require that construction and delivery routes be approved and an adequate bond be posted to ensure compliance, repair and remediation.
Additionally, the proposed law would establish general requirements for the developer and operator, including evidence of commercial general liability insurance coverage; a decommissioning plan; a performance bond for decommissioning, remediation and restoration; structural and operational integrity inspections; decommissioning of any WEF turbine that remains nonfunctional or out compliance for more than 12 consecutive months; and remediation, including shutdown and fines, for violations.
Chris Hoffman is a freelance writer/reporter for the Madison County Courier. She can be reached at firstname.lastname@example.org.