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Resource Documents: Law (53 items)

RSSLaw

Documents presented here are not the product of nor are they necessarily endorsed by National Wind Watch. These resource documents are provided to assist anyone wishing to research the issue of industrial wind power and the impacts of its development. The information should be evaluated by each reader to come to their own conclusions about the many areas of debate.


Date added:  November 20, 2017
Health, New Zealand, Noise, RegulationsPrint storyE-mail story

Expert Witness Statement of Sarah Laurie, Waubra Foundation

Author:  Laurie, Sarah

Requested by Stockyard Hill Landscape Guardians –

I have used my previous clinical experience as a rural General Practitioner to interview individuals reporting adverse health effects from a range of industrial noise sources, and then used the information obtained together with my clinical insights and experience, to collaborate with trained health and acoustics professionals in Australia and internationally to plan and implement new multidisciplinary research methodologies and develop new acoustic instrumentation, to facilitate accurate measurement and recording of acoustic exposures, and concurrent physiological data (sleep and heart rate), where people are reporting adverse impacts with exposure to industrial noise sources.

The aim of this work is to identify the precise acoustic triggers for the reported symptoms, including particularly the triggering of the acoustic startle reflex that underpins much of the reported illness, especially when the acoustic startle reflex is repeatedly triggered during sleep, resulting in chronic sleep deprivation which worsens with progressive low frequency noise sensitization.

The acoustic exposures have been in residential as well as occupational settings, at open cut and underground coal mines, coal, gas and wind power generators, and other noise sources such as CSG field compressors and urban data storage centres.

International collaboration has occurred with experts such as Dr Paul Schomer, immediate past Director of Acoustical Standards in the USA. At Dr Schomer’s invitation, I was asked to join the international working group on Wind Turbine Noise in May 2015 in Pittsburgh, USA, and to present at the American Society of Acoustics conference [http://waubrafoundation.org.au/resources/acoustical-society-america-conference-2015-waubra-foundationpresentation- notes/]. I work closely with independent Acousticians, Psychoacousticians and others both in Australia and internationally who are leading the world in investigation of industrial noise inside impacted residents homes, together with the collection of concurrent physiological data.

I have collaborated with others in the development of affordable dual channel broad spectrum acoustic soundscape recording units, in order to capture scientifically important data which is being missed if averaging and sampling techniques are used, or if infrasound and low frequency noise inside and outside homes is excluded from measurement and analysis as is the case with many existing sound level meters and regulatory requirements and standards. …

I note that experienced Danish Professor of Acoustics Henrik Møller and his colleague Christian Pedersen coauthored a peer reviewed paper published in May 2011 which demonstrated (using wind industry data) that as power generation capacity increased (which can be achieved via increased tower height and blade length), so too did the proportion of low frequency noise emitted also increase. They noted that therefore it was predictable that “annoyance” for the neighbours would also increase. [https://www.wind-watch.org/documents/low-frequency-noise-from-large-wind-turbines-2/]

This increase in “annoyance” including sleep disturbance is precisely what has happened to rural residents in Victoria living near the Macarthur Wind Power Development, documented in a preliminary Community Noise Impact Survey at Macarthur Wind Power Development in 2013 by Mrs Anne Schafer, and also in numerous public submissions and oral Testimony to Federal Senate Inquiries and legal proceedings. …

The acoustic startle reflex is epitomized by the description given by residents living near various sources of industrial noise, including particularly wind turbines, of “waking up at night suddenly in an anxious frightened panicked state”. These episodes correlate directly with wind direction and weather conditions, with the worst experiences being when they are downwind, with either heavy cloud cover or temperature inversion conditions.

The acoustic startle reflex is a simple neural reflex, which is extremely rapid. The neural pathway does not travel to the cortex or thinking part of the brain, but rather goes from the peripheral sensory receptors directly to the primitive part of the brain in the brainstem, and then straight to the heart where one of the effects of the sympathetic nervous system activation is to increase heart rate. In layman’s terms, this is known as the “fight flight” response, and is the core of the physiological stress response.

By its very nature (simple and very rapid neural reflex), the acoustic startle reflex cannot be induced by “suggestion” so the assertion by wind industry advocates and some acousticians that a “nocebo” effect is responsible for the annoyance/physiological stress reactions or sleep disturbance episodes is not supported by the scientific evidence in animal studies.

Nor is the “nocebo effect” excuse supported by detailed clinical history taking directly from noise affected people by experienced medical practitioners. When such medical histories are gathered, clinical diagnoses of Environmental Sleep Disorder and other conditions including Wind Turbine Syndrome become clear, as do the serious adverse health consequences of the diagnosis of Environmental Sleep Disorder if the excessive noise exposure and sleep deprivation continue.

The effects of chronic sleep deprivation have been summarized in the 2009 World Health Organisation’s Night Noise Guidelines for Europe [https://www.wind-watch.org/documents/night-noise-guidelines-for-europe/], and include serious physical and mental health consequences. …

Two important Victorian wind turbine noise investigations since 2010 are the acoustic and health study conducted by Dr Bob Thorne at the Waubra and Cape Bridgewater Wind Power Developments [http://waubrafoundation.org.au/resources/thorne-r-victorian-wind-farm-review-updated-june-2014/], and the Pacific Hydro initiated and partly funded Cape Bridgewater Acoustic Investigation by Steven Cooper [https://www.wind-watch.org/documents/results-of-an-acoustic-testing-program-cape-bridgewater-wind-farm/]. The existence of repeated sleep disturbance was confirmed in both.

Both these wind power developments have been deemed to be compliant with their permit conditions and the NZ Standard. If they are in fact compliant, then it is clear that the NZ standard is allowing people to become chronically sleep deprived, and progressively sensitized to low frequency noise, both of which have serious adverse health sequelae for both physical and mental health.

Those who find the noise becomes unbearable, (as stated in the Victorian Health Department Technical report quoted from earlier), can become a serious suicide risk. The Waubra Foundation Administrator and Directors have direct experience and knowledge of the desperation of low frequency noise sensitized people, and I have personally prevented a number of suicides by responding rapidly, and locating local health providers in a timely fashion. My own experiences are supported by the data contained in Dr Bob Thorne’s study report referred to above, and by independent psychological assessment in some instances – these people are very unwell, physically and often mentally, and exhausted. Their psychological distress is further compounded by the lack of any action to alleviate their situation by responsible authorities at every level of government, and sometimes ignorance of their treating health professionals. …

30th January, 2017

Download original document: “Expert Witness Statement of Sarah Laurie, CEO, Waubra Foundation

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Date added:  November 6, 2017
Law, Michigan, Noise, OrdinancesPrint storyE-mail story

Opinion and Order Affirming the Decision of the Almer Charter Township Board of Trustees

Author:  Ludington, Thomas

On February 15, 2017, Plaintiff Tuscola Wind III, LLC, (“Tuscola”) filed a complaint naming the Almer Charter Township and that Township’s Board of Trustees as Defendants. Count One of the Complaint is the “Claim of Appeal.” Tuscola Wind’s claims arise out of Defendants’ denial of a Special Land Use Permit (“SLUP”) that would have permitted Tuscola Wind to construct the “Tuscola III Wind Energy Center” in Tuscola County, Michigan. Oral argument on the claim of appeal was held on October 5, 2017. For the following reasons, the Board of Trustee’s denial of the SLUP will be affirmed. …

The Zoning Ordinance addresses noise emissions from the turbines:

Noise emissions from the operations of a [Wind Energy Conversion System] shall not exceed forty-five (45) decibels on the dBA scale as measured at the nearest property line of a non-participating property owner or road. A baseline noise emission study of the proposed site and impact upon all areas within one mile of the proposed WECS location must be done (at the applicant’s cost) prior to any placement of a WECS and submitted to the Township. The applicant must also provide estimated noise levels to property lines at the time of a Special Use application.

Similarly, “[a]ll efforts shall be made not to affect any resident with any strobe effect or shadow flicker.” And the Zoning Ordinance provides the general admonishment that “[t]he wind energy conversion system shall not be unreasonably injurious to the public health and safety or to the health and safety of occupants of nearby properties.”

On September 23, 2016, Tuscola submitted its SLUP application to the Almer Township Planning Commission. …

To assist in its consideration of the application, the Township retained the Spicer Group, Inc., an engineering consulting firm. On October 25, 2016, the Spicer Group sent Tuscola an email requesting clarification and/or additional information regarding several aspects of the application. Three of the Spicer Group’s concerns are relevant. First, Spicer questioned several aspects of the sound emissions report, including how Tuscola chose the 1-hour LEQ as the proper metric. The Spicer Group further asked when Tuscola would be submitting an economic impact study, indicating concern that “the property value information provided on pages 10 through 11 of the TW3 SUP Application is not local and not pertinent to Almer Township.” Finally, the Spicer Group indicated that Tuscola’s proposal to place the power lines above the ground did not conform with the Zoning Ordinance requirement that all electrical connection systems and lines from a wind farm be placed underground. The Spicer Group acknowledged that the Planning Commission has discretion to waive that requirement, but suggested that Tuscola had not yet sought that waiver.

Tuscola responded to the Spicer Group’s inquiries on October 31, 2016. …

On November 8, 2016, the Spicer Group submitted a report to the Planning Commission analyzing Tuscola’s SLUP application. In the report, the Spicer Group concluded that Tuscola had complied with many, indeed most, of the Zoning Ordinance’s requirements. But the Spicer Group did identify a number of outstanding issues. …

On November 10, 2016, the Planning Commission held a public hearing to discuss the SLUP application. At the hearing, a representative from Tuscola discussed the project. … For the rest of the hearing, members of the community expressed their opinions on the proposals. Most speakers communicated objections to various aspects of the application (if not the project as a whole), but some expressed support for the wind energy project. Two sound engineers testified at the hearing. The first engineer, Rick James, is an employee of e-Coustic Solutions and was hired by concerned citizens. First, Mr. James opined that Tuscola’s noise emissions report likely understated the dBA level at several property lines. Second, Mr. James challenged Tuscola’s assertion that the noise emissions provision in the Zoning Ordinance allowed for an averaged sound level measurement, as opposed to a maximum level: “[T]he words are very explicit, they say, ‘Shall not exceed 45 dBA.’ When you read law you can’t read into it when the words aren’t there. It doesn’t say 45 dBA Leq, it does not say 45 dBA average, it says not exceed 45 dBA.” Id. at 109. Ms. Kerrie Standlee, the principle engineer for Acoustics by Design [Acoustics by Design was retained by the Township to assist in reviewing the application], also testified. Ms. Standlee concurred with Mr. James’s interpretation of the ordinance:

[T]he limit is stated in there that the level shall not exceed 45 dBA. It doesn’t give any descriptor, is it supposed to be the Lmax or – and as was mentioned, an L90 or an L10 at 50, an Leq, it doesn’t specify. Mr. James is correct in that when something is not specified, you take the normal interpretation, which would be Lmax. I’m with – I’m on the City of Portland Noise Review Board and we have an Lmax standard. It’s not specified as the Lmax it’s just – like yours it says it shall not exceed this level. And that is an absolute level, not – not an equivalent energy level.

Ultimately, the Planning Commission concluded that additional information was necessary before the SLUP application could be ruled upon. …

The day after the public hearing, Tuscola sent the Planning Commission a response addressing several of the concerns raised by the Spicer Group. …

Several days later, Tuscola sent another communication to the Planning Commission further addressing several of the issues identified by the Spicer Group. …

On November 17, 2016, the Almer Township Board approved a “Wind Energy Conversion Systems Moratorium Ordinance.” … Thus, the Board enacted a

moratorium, on a temporary basis, on the establishment, placement, construction, enlargement, and/or erection of Wind Energy Conversion Systems within the Township and on the issuance of any and all permits, licenses or approvals for any property subject to the Township’s Zoning Ordinance for the establishment or use of Wind Energy Conversion Systems. … [T]his Ordinance shall apply to any applications pending before any Township board or commission, including the Township Board, Planning Commission or Zoning Board of Appeals.

… On December 7, 2016, the Planning Commission held a second public hearing. … In large part, the Tuscola representative summarized the company’s November 15, 2016, submission to the Planning Commission. … The Planning Commission discussed the outstanding issues, and … [t]he Township’s attorney summarized the requested information as follows: “[Y]ou want to request information from NextEra on property values, noise, sound models based on Lmax and if there is the justification you just referenced regarding the cost estimate on the decommissioning of the individual towers.”

On December 22, 2016, Tuscola provided the supplemental information which the Planning Commission had requested. … On December 29, 2016, the Spicer Group responded to Tuscola’s supplemental memorandum. … On January 3, 2017, Tuscola’s representative sent a letter to the Planning Commission addressing the Spicer Group’s memorandum. …

On January 4, 2017, the Planning Commission held its third and final public hearing on the SLUP application. … Planning Commission member Daniels moved to recommend denial of the SLUP application. … He asserted that “[t]he ordinance does not allow for the averaging varying levels of sound. We, as a Planning Commission, are not here to rewrite the ordinance, but to enforce the ordinance as written. And it mandates a maximum sound level of 45 decibels.” …

Ultimately, the Planning Commission voted 3 to 1 to recommend denial of the SLUP application (two members did not vote because of a conflict of interest).

On January 17, 2017, the Almer Township Board held a public meeting to review the Planning Commission’s recommendation regarding the SLUP application. … The Board simultaneously issued a Resolution articulating its rationale for denying the SLUP application. In the Resolution, the Board identified five areas in which the SLUP application did not comply with the Zoning Ordinance. … Finally, the Board noted that it had previously approved a moratorium on wind energy projects in the Township and thus was precluded from approving the SLUP application even if it had complied with the Zoning Ordinance. …


Tuscola argues each of the Board’s purported reasons for denying the SLUP application were contrary to Michigan law and not supported by substantial evidence. Tuscola further argues that the Board did not have the authority to enact a moratorium on wind energy projects in the did not appeal from a final decision of the Township. For its part, the Township argues that Tuscola’s appeal is not ripe because the company did not appeal from a final decision of the Township. Next, the Township argues that each of the Board’s expressed reasons for denying the SLUP application were reasonable and permitted by law. And, finally, the Township argues that the temporary moratorium on wind energy project permits was valid. …

A. The denial of the SLUP application is ripe for review.

(Although the moratorium on wind energy projects was enacted after Tuscola’s SLUP application was submitted (but before it was rejected), the Planning Commission and Township Board proceeded to consider the SLUP application on its merits. At most, the Township Board relied upon the moratorium as an alternative (and secondary) basis for denying the SLUP application. Because the Board’s denial of the application was supported by substantial evidence and was not contrary to law, the legitimacy of the moratorium need not be resolved.)

B. Michigan Courts have repeatedly confirmed that courts should defer to municipal interpretations of zoning ordinances. … Thus, this Court does not sit in de novo review of the Zoning Ordinance provision regarding noise emission levels (assuming that the ordinance is ambiguous). Rather, the question is whether the Township Board’s interpretation of the ordinance was “reasonable.” … The “[s]hall not exceed” language in § 1522(C)(14) is facially indistinguishable from a Lmax standard. … Even if the Court were to conclude that § 1522(C)(14) is ambiguous regarding how to measure sound emissions (and not just ambiguous regarding the length of time over which to measure them), Tuscola’s argument still falls short. …

Tuscola’s final argument regarding § 1522(C)(14) is that the Township Board’s interpretation would result in exclusionary zoning,* which is prohibited by Michigan law. Specifically, Tuscola argues that “[u]sing an Lmax metric would make development of commercial wind energy in the Township impossible because a single wind turbine could not be sited within at least a half-mile of a nonparticipating line.” This conclusory argument has no merit. Under Michigan, “a zoning ordinance may not totally exclude a land use where (1) there is a demonstrated need for that land use in the township or surrounding area, (2) the use is appropriate for the location, and (3) the use is lawful.” Even assuming that the Township Board’s interpretation of the ordinance completely excludes wind energy development in the Township, Tuscola cannot prevail.

(*And that assumption is questionable. Tuscola asserts that application of an Lmax standard would prevent the company from siting a turbine within 2,775 feet from a nonparticipating property line. See Dec. 22, 2016, Supp. Info. at 1. Thus, Tuscola would be forced to reach agreements with a significantly larger number of property owners in order to build the turbines as currently planned. But it seems plausible that Tuscola might be able to enter into more land use contracts with property owners and/or site a fewer number of turbines in Almer Township. Both of those alternatives would undoubtedly impact the profitability of the project, but Tuscola has not demonstrated that it is entitled to deferential or economically favorable conditions. Perhaps application of an Lmax standard creates such an economic hardship that it constitutes de facto exclusionary zoning. But Tuscola’s conclusory briefing on this point falls far short of showing that to be true.)

Tuscola has made no attempt to show that there is a “demonstrated public need” for wind turbines in Almer Township, and the Court cannot comprehend why such a need would exist. “Presumably any entrepreneur seeking to use land for a particular purpose does so because of its perception that a demand exists for that use. To equate such a self-serving demand analysis with the ‘demonstrated need’ required by the statute would render that language mere surplusage or nugatory, in contravention of usual principles of construction.” Outdoor Sys., Inc. v. City of Clawson. Further, “the public need must be more than mere convenience to the residents of the community.” DF Land Dev., LLC v. Charter Twp. of Ann Arbor.

Wind turbines produce energy, which is, of course, needed by the Almer Township community. But Tuscola cannot reasonably argue that the Township will have inadequate access to energy absent the wind energy project. The Michigan Court of Appeals has explained that, to show demonstrated public need, the plaintiff must do more than show that “residents of the township would benefit from” the excluded use. Tuscola has not carried that burden here.

C. The Township Board reasonably interpreted its Zoning Ordinance and, under that reasonable interpretation, Tuscola was undisputedly in noncompliance with the Zoning Ordinance. Because at least one of the bases on which the Board premised its denial was lawful, the remaining four bases need not be examined. The Township Board’s denial will be affirmed.

Accordingly, it is ORDERED that Defendant Almer Township Board’s denial of Plaintiff Tuscola Wind III, LLC’s, SLUP application is AFFIRMED.

Dated: November 3, 2017

THOMAS L. LUDINGTON
United States District Judge

Case No. 17-cv-10497
United States District Court
Eastern District of Michigan
Northern Division

Download original document: “Tuscola Wind III, LLC,, Plaintiffs, v Almer Charter Township, et al, Defendants

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Date added:  October 28, 2017
Minnesota, Noise, Regulations, SitingPrint storyE-mail story

Wind Turbine Siting in Minnesota

Author:  Rosenquist, Kristi

A Report for the Legislative Energy Commission, 10/19/2017 —

Many Minnesotans report sleep deprivation, migraine headache, vertigo and ringing in the ears after large wind turbines are installed near their homes. Some have left their homes.

MN Department of Health identified low-frequency noise as the most likely cause and confirms that the health of some Minnesotans is being harmed by wind turbines.

Setback distance between a turbine and a home is based on wind turbine noise. State agencies concur that they understand so little about wind turbine noise they cannot even enter into rulemaking on wind turbine noise.

Minnesotans who are harmed have no recourse.

European countries more experienced with wind turbines than Minnesota have setbacks that are 10 times the height of the turbine to the blade tip at its highest point (5000 feet for large modern wind turbines).

Contents:

  • Background
  • Site permit setback distance from homes is based on “noise” even though the State knows so little about turbine noise they cannot enter into rulemaking on the topic.
  • Minnesotans’ homes are inside the turbine Safety Evacuation Zone.
  • What studies does the PUC have in front of it and how did they respond?
  • Citizens whose health and peaceful enjoyment of their private property are harmed by wind turbines have no recourse.
  • PUC approved research of LFN by the University of Minnesota that fails to study LFN in homes and the health of people living next to turbines.
  • Audible Noise – agreement that 40 dB(A) should be the limit, but no good measurement protocol to determine if it is met.
  • Low-Frequency Noise is the problem. Measurable – but no standards.
  • What should the Minnesota Legislature adopt for a siting standard?
  • Appendix: Partial list of wind turbine LFN and health studies in PUC Docket 09-845

Download original document: “Wind Turbine Siting in Minnesota: A Report for the Legislative Energy Commission

Download presentation (view below): “Presentation to the Legislative Energy Commission, October 19, 2017

(Bill creating a process to address certain noise complaints resulting from wind energy siting: HF2170, SF1906)

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Date added:  October 20, 2017
Health, Human rights, Law, New York, Noise, Property valuesPrint storyE-mail story

Lawsuit against Invenergy for loss of amenity and well-being

Author:  Andre, Mark; Andre, Donna; et al.

State of New York Supreme Court, County of Wyoming—

FACTS

33. Upon information and belief, Defendant Invenergy created and owns a wind energy operation, including wind turbines on property located within 800-1500 feet from the properties owned by Plaintiffs.

34. Upon the construction of and operation of the· wind turbines, Defendant has destroyed Plaintiffs’ rural viewshed from their property.

35. Upon the construction of and operation of the wind turbines, Defendant has caused constant noise, vibrations and flicker to enter Plaintiffs’ property, significantly impacting the health and wellbeing of the Plaintiffs and causing them to become sick, sore, lame and disabled.

36. Upon the construction of and operation of the wind turbines, Defendant has caused constant noise and vibrations significantly diminishing the value of Plaintiffs’ property and home.

37. Upon information and belief, Defendant’s wind turbines have violated, on a regular basis, town noise ordinances that restrict the noise levels to 50 decibels.

38. Moreover, Defendant’s operation of such wind turbines caused noise pollution, vibrations, and flicker to occur, creating a nuisance and interfering with Plaintiffs’ exclusive possessory interest in their property, and causing Plaintiffs’ quality of life to be significantly diminished.

39. In spite of being informed of the nuisance condition created by the Defendant, the Defendant has refused to either abate the nuisance or otherwise engage in any mitigating measures, intentionally continuing the nuisance that they have created, causing a significant diminishment of the Plaintiffs’ use and enjoyment of their property, quality of life, health, value of Plaintiffs’ property and economic wellbeing.

Download original document: “Andre et al. v. Invenergy

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