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Resource Documents: Ordinances (53 items)

RSSOrdinances

Unless indicated otherwise, documents presented here are not the product of nor are they necessarily endorsed by National Wind Watch. These resource documents are shared here 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. • The copyrights reside with the sources indicated. As part of its noncommercial effort to present the environmental, social, scientific, and economic issues of large-scale wind power development to a global audience seeking such information, National Wind Watch endeavors to observe “fair use” as provided for in section 107 of U.S. Copyright Law and similar “fair dealing” provisions of the copyright laws of other nations.


Date added:  November 12, 2019
Michigan, Noise, Ordinances, SitingPrint storyE-mail story

Wind Energy Conversion Systems Zoning Ordinance

Author:  Monitor Township, Bay County, Mich.

Section 3.48 [excerpts]

This Ordinance is intended to protect the health, safety and welfare of the residents of the Township and to encourage the safe, effective, efficient and orderly development and operation of wind energy resources in the Township while preserving and protecting the character and the stability of residential, agricultural, recreational, commercial, industrial and other areas within the Township.

Adverse Sound Character: Sound that causes building rattle, is impulsive, tonal, or has low-frequency bass rumble.

Ambient is defined as the sound pressure level exceeded 90% of the time over a 96-hour measurement period with daytime/nighttime division.

Lmax (LAmax or LCmax): The maximum dB(A) or dB(C) sound level measured using the “fast response” setting of the sound meter (equivalent to 0.125 second exponential averaging time).

L10 is the noise level exceeded for 10% of the time of the measurement duration. This is often used to give an indication of the upper limit of fluctuating noise, such as that from road traffic.

L90 is the noise level exceeded for 90% of the time of the measurement duration and is commonly used to determine ambient or background noise level.

Utility-Scale (also known as Commercial and Large-Scale) Wind Energy Conversion System: A wind energy conversion system greater than sixty (60) feet in total height (tip height) intended to generate power from wind primarily to supplement the greater electric utility grid. Utility-Scale WECS includes accessory uses such as, but not limited to, SCADA towers, anemometers, or electric substations.

Review Standards for Commercial Wind Energy Conversion Systems (WECS).

Height and Scenic Vista. The maximum height of any Utility-Scale WECS is 500 feet. The height of a WECS is measured from the lowest natural grade at the base of the pole to the highest point of the WECS when a blade is in its vertical orientation.

Abandonment. Any WECS that is not used to produce energy for a period of six (6) successive months or longer shall be deemed to be abandoned and shall be promptly dismantled and removed from the property in accordance with the decommissioning regulations of this ordinance, unless the applicant receives a written extension of that period from the Township Board in a case involving an extended repair schedule for good cause.

Vibrations. Wind turbines shall not create vibrations that are detectable by humans on non-participating properties.

Safety Manual. The Applicant must provide an unredacted copy of the manufacturer’s safety manual for each model of turbine without distribution restraints to be kept at the Township Hall and other locations deemed necessary by Planning Commission or local first responders. The Manual should include standard details for an industrial site such as materials, chemicals, fire, access, safe distances during WECS failure, processes in emergencies, etc.

Noise. Applicant shall provide an initial sound modeling report and, within six (6) months of commencing operation of the WECS, a postconstruction report for the project with a schedule and documentation …

Setback. The minimum setback from any property line of a Non- Participating Landowner or any road right-of-way shall be no less than 2000 feet. The minimum setback from any property line of a Participating Landowner shall be no less than 1640 feet.

Communication Interference. Each WECS and Testing Facilities shall be designed, constructed and operated so as not to cause radio and television or other communication interference. In the event that verified interference is experienced and confirmed by a licensed engineer, the Applicant must produce confirmation that said interference had been resolved to residents! satisfaction within ninety (90) days of receipt of the complaint. Any such complaints shall follow the process stated in Complaint Resolution sections.

Infrastructure Wiring. All electrical connection systems and lines from the WECS to the electrical grid connection shall be located and maintained underground. …

Road Damage. The Contractor shall inform the Bay County Road Commission (BCRC) of all the roads they propose to use as haul routes to each construction site. This shall be done prior to beginning any construction at any site. The identified haul routes shall be videotaped by either the BCRC or Contractor prior to the beginning of construction and after construction has been completed. Upon review of the before and after videos and physical review of each roadway, the BCRC shall determine what damage, if any, was caused by the Contractor! s vehicles. If it is determined damage to the road was caused by the Contractor! s vehicles or activities, the Contractor shall work with the BCRC to determine the extent of the roadway repair needed. This may include, but is not limited to, crush and shaping the roadway, placing additional aggregate, placing a new chip seal surface (two courses minimum), placing a new asphalt surface or a combination thereof. In all cases, the roadway shall be constructed in accordance with the BCRC! s current specifications and requirements associated with the type of roadway to be installed. All costs for said work shall be the responsibility of the Contractor.

Shadow Flicker. No amount of Shadow Flicker may fall on or in a Non-Participating Parcel. … Participant parcels shall not exceed 30 hours of shadow flicker per
calendar year.

Strobe Effect. No amount of Strobe Effect may fall on or in any parcel. Under no circumstances, shall a WECS or Testing Facility produce strobe effect on properties.

Voltage. The Applicant shall be responsible for compensation to residents for property, including livestock, health or other damage by stray voltage caused by a WECS. The Applicant shall demonstrate WECS prohibits stray voltage, surge voltage, and power from entering ground.

Regulation of WECS Commercial and Industrial Noise. To preserve quality of life, peace, and tranquility, and protect the natural quiet of the environment. This ordinance establishes the acoustic baseline, background sound levels for project design purposes, and limits the maximum noise level emissions for commercial and industrial developments. Residents shall be protected from exposure to noise emitted from commercial and industrial development by regulating said noise.

Non-Compliance with Standards. The Township Board reserves the right to require WECS Applicant to shut down any WECS unit that does not meet ordinance requirements until such WECS unit meets ordinance requirements or is removed.

Noise.

a) No WECS shall generate or permit to be generated audible noise from commercial or industrial permitted facilities that exceeds 45 dBA (Lmax) or 55 dBC (Lmax) (dBC-to-dBA ratio of 10 dB per ANSI standard S12.9 Part 4 Annex D) for any duration, at a property line or any point within any property.

b) No WECS shall generate or permit to be generated from commercial or industrial permitted facilities any acoustic, vibratory, or barometric oscillations in the frequency range of 0.1 to 1 Hz that is detectable at any time and for any duration by confirmed human sensation or exceeds a sound pressure level from 0.1 to 20 Hz of 50 dB(unweighted) re 20 µPA or exceeds an RMS acceleration level of 50 dB(unweighted) re 1 micro-g by instrumentation at a landowner’s property line or at any point within a landowner’s property.

c) No WECS shall generate or permit to be generated from commercial or industrial permitted facilities any vibration in the low-frequency range of 0.1 to 20 Hz, including the 1, 2, 4, 8, and 16 Hertz octave bands that is perceivable by human sensation or exceeds an rms acceleration level of 50 dB(unweighted) re 1 micro-g at any time and for any duration either due to impulsive or periodic excitation of structure or any other mechanism at a landowner’s property line or at any point within landowner’s property.

d) A noise level measurement made in accordance with methods in section “Noise Measurement and Compliance” that is higher than 45 dBA (Lmax) or 55 dBC (Lmax), adjusted for the penalty assessed for a tonal noise condition, shall constitute prima facie evidence of a nuisance.

e) An acoustic, vibratory or barometric measurement documenting oscillations associated to commercial or industrial permitted facilities with levels exceeding the noise limits shall constitute prima facie evidence of a nuisance.

f) All commercial and industrial activity shall comply with limits and restrictions anywhere at any time on another property.

g) Leq 1-sec shall be used for all measurements and modeling.

Noise Measurement and Compliance. …

Wind Energy Conversion System (WECS) Site Plan Review Procedure. …

Economic Impact. …

—Adopted March 25, 2019

Wind Energy Conversion Systems Zoning Ordinance

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Date added:  November 20, 2018
New York, OrdinancesPrint storyE-mail story

Wind Energy Facilities Law, Town of Richland, New York

Author:  Town Board, Richland, N.Y.

The Town Board of the Town of Richland finds and declares that:

5-1 The New York State Constitution’s “Bill of Rights for Local Governments” (Article IX, §2-10) obligates local legislators to protect the health, safety and well-being of their community.

5-2 While wind energy is a semi-renewable energy resource of electricity generation, and under some circumstances it may reduce the use of nonrenewable energy sources, the possible benefits must be balanced against potential negative impacts to local citizens, local economy, local ecosystems and regional military facilities.

5-3 Regulation of the siting and installation of wind turbines is necessary for protecting the health, safety and well-being of neighboring property owners, the general public, the local economy and local ecosystems.

5-4 Several independent legal and economic experts have concluded that there can be serious legal and economic detriments for landowners entering into the secretive, complicated and one-sided lease/easement contracts written by industrial wind energy developers.

5-5 Large-scale multiple-turbine industrial wind energy facilities present significant potential negative aesthetic impacts because of their enormous size, lighting, dissimilarity from the natural environment, and possible shadow flicker effects.

5-6 Installation of large-scale multiple-turbine industrial wind energy facilities can create and/or exacerbate drainage problems through erosion and lack of sediment control of facility and access road sites, and harm farmlands and agriculture through construction methods utilized and arable land conversion to industrial purposes.

5-7 Construction of industrial wind energy facilities can create traffic problems, dangerous road conditions for local and other travelers and damage local roads

5-8 There is significant evidence from independent appraisers that industrial wind energy facilities will likely reduce property values of nearby property owners. Said property value reductions will reduce the Town’s tax base, resulting in a tax rate increase on all Town property owners.

5-9 A large-scale industrial wind energy facility may be a significant source of noise and vibration, These can have negative health impacts on residents in neighboring properties, particularly in areas with low ambient noise levels. According to various medical experts (by way of limited example, the World Health Organization), the infrasound component of such noise can be the most problematic.

5-10 In certain circumstances, industrial wind energy facilities can cause electromagnetic interference with some types of communications.

5-11 Independent experts have concluded that bats killed by industrial wind energy turbines can result in an appreciable reduction in regional agricultural yields. Estimates have been done for every county in the United States, and these experts have projected that this could adversely affect our local community’s economy.

5-12 Independent experts have concluded that turbines kill large quantities of birds. Especially troublesome are the raptors that are destroyed. The Town of Richland is located on a major migration route for many species of birds, and is habitat for many species, both year-round and seasonal.

5-13 Independent experts have concluded that industrial turbines can have a variety of adverse health effects on other wildlife, livestock and domestic animals.

5-14 Independent experts have also concluded that industrial turbines can have a variety of adverse effects on hunting and fishing.

5-15 The Town of Richland has many scenic viewsheds, and some of these would be negatively affected by industrial wind energy facilities.

5-16 The Town of Richland is considering adopting a Local Waterfront Revitalization Plan which will include the establishment of a Scenic Overlay District in recognition of the importance of the scenic assets of the community.

5-17 Public and private dollars have been invested in infrastructure within the Town to enhance and promote tourism, an important regional industry. Several studies by independent experts have concluded that nearby industrial wind energy facilities can have a major negative economic impact on tourism-sensitive communities.

5-18 The Town and its citizens desire to maintain the pastoral, rural nature of this region. An industrial wind energy facility is in conflict with the culture and character of this community.

5-19 Due to the unusually broad array of potentially problematic findings (and lack of scientifically proven net benefits), the precautionary principle dictates that the Town be particularly conservative and cautionary in its regulation of industrial wind energy.

5-20 In formulation of this Local Law, many studies have been reviewed – and those written by independent experts were given the greatest consideration. (See WiseEnergy.org for good examples of such reports.) Many wind energy ordinances through the United States have been analyzed. Experiences of other communities with industrial wind energy have been studied. An ad hoc Committee was appointed to make recommendations regarding industrial wind energy regulation. Some of the Committee’s conclusions were incorporated into this Local Law.

Noise Impacts:

Applicant will provide a post-construction noise monitoring plan which shall, at a minimum, provide verification from a qualified party that at the WEF [Wind Energy Facility] boundaries and at proximate residences, WEF noise does not exceed 35 dBA for more than five (5) consecutive minutes during a representative range of operating and atmospheric conditions. Instrumentation to verify this shall meet ANSI or IEC Type 1 standards, and measurement procedures shall comply with relevant portions of ANSI 812.9, Part 3. Each report will include the SCADA/Power output data at the time of the testing.

WEF Dimensional Requirements:

To provide for at least minimal operational safety for persons and property located outside of a WEF, all WEFs shall comply with the minimums and maximums contained in the following table:

Type of Wind Energy Facility

Minimum Wind Turbine Setback* from any Property Line, Public or Private Right of Way, and/or Access Easement

Maximum Wind Turbine Height†

Small (≤100 kW)

1.5 feet for each foot of height from any property line and any vacant or occupied dwelling unit on the same property

75 feet

Large (>100 kW)

One (1( mile from facility property lines

500 feet

* Such minimum setbacks for a WEF shall be measured from its outermost extension (whether blade tip, nacelle/turbine housing, or tower/pole edge) that is nearest the WEF property line, public or private right-of- way, and access easement.

† Height is measured from the lowest adjacent grade to the highest point of the structure, including any attachments (such as a lightening protection device or a turbine rotor or tip of the turbine blade when it reaches its highest elevation). No portion of any wind turbine blade shall be closer than 25 feet to any portion of the ground that surrounds any WEF. No LWEF wind turbine shall be permitted to be within five (5) miles of any operating or proposed radar facility (NEXRAD, military, commercial etc.).

Download original document: “Wind Energy Facilities Law, Town of Richland, New York

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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:  November 27, 2015
Maine, OrdinancesPrint storyE-mail story

Town of Freedom Wind Turbine Ordinance

Author:  Town of Freedom, Maine

9.1 Wind Turbine Classifications

Type 1 – Small Wind Turbine means a wind turbine with a nameplate capacity less than 10 kW, and a turbine height less than 150 feet.

Type 2 – Intermediate Wind Turbine means a wind turbine with a nameplate capacity between 10 kW and 100 kW, and a turbine height less than 150′.

Type 3 – Large Wind Turbine means up to three wind turbines with a nameplate capacity less than 1 MW, and a turbine height less than 300′, regardless of whether approval is required by the Department of Environmental Protection under 35-A M.R.S.A. §3451, et seq. (Expedited Permitting of Grid-Scale Wind Energy) or Title 38 M.R.S.A § 481, et seq. (Site Location of Development Act).

Type 4 – Industrial Wind Turbine means one or more wind turbines with a Nameplate capacity of greater than or equal to 1 MW, and/or a turbine height greater than 300′, regardless of whether approval is required by the Department of Environmental Protection under 35-A M.R.S.A. §3451, et seq. (Expedited Permitting of Grid-Scale Wind Energy) or Title 38 M.R.S.A § 481, et seq. (Site Location of Development Act).

13.1 Setback Standards

13.1.1 Setback standards for Type 1 Wind Turbines:

a. Non-participating Landowner Property Lines –Type 1 Wind Turbines less than or equal to 100′ shall be set back from the property line of any Nonparticipating Landowner a distance of no less than 1.5 times the turbine height. Type 1 Wind Turbines greater than 100′ and less than 150′ shall be set back from the property line of any Non-participating Landowner a distance of no less than 3 times the turbine height. Non-participating property owners may waive this setback with a written Mitigation Waiver. (See Section 13.4 -Mitigation Waiver), but in no event shall any Wind Turbine be located at a distance from an Occupied Building that is less than the height of the Turbine.

b. Public Roads – Type 1 Wind Turbines shall be set back from any public road, from the edge of the right of way, a distance no less than 1.5 times the turbine height.

13.1.2 Setback standards for Type 2, 3, and 4 wind turbines:

a. Non-participating Landowner Property Lines – Type 2, 3 and 4 Wind Turbines To protect the health, safety and welfare of the citizens of Freedom, Turbines shall be set back from the property line of any non-participating land owner a distance of no less than 13 times the turbine height. Nonparticipating property owners may waive this setback with a written Mitigation Waiver (see Section 13.4 – Mitigation Waiver), but in no event shall any WindTurbine be located at a distance from an Occupied Building that is less than the height of the Turbine.

b. Public Roads – Type 2, 3 and 4 Wind Turbines will be set back from any public road, from the edge of the right of way, a distance no less than 4 times the turbine height.

13.1.3 Setbacks from Scenic or Special Resources:

All Wind Turbines exceeding 80 feet or average tree height on site, whichever is greater, must be set back a minimum of 2,500 feet from any Scenic or Special Resource as defined in Section 8.

13.2 Noise Standards

13.2.1 Noise Standards for Type 1 and 2 wind turbines:

For Type 1and Type 2 Wind Turbines, audible noise levels (dBA)at any property line due to wind turbine operations shall not exceed 35 dB(A) from 6 AM (8 AM on Sundays) to 8:30 PM and 30 dB(A) from 8:30 PM to 6 AM (8 AM on Sundays). Property owners may waive this noise restriction with a written Mitigation Waiver. (see Section 13.4 -Mitigation Waiver).

13.2.2 Noise Standards for Type 3 and 4 wind turbines:

a. Audible noise levels (dBA) due to wind turbine operation shall not exceed either of the following two conditions:

1. The pre-construction ambient noise level by more than 5dBA as measured at any property line. Pre-construction ambient noise studies shall be conducted, by the applicant, for all properties located within 2 times the setback of proposed wind turbine site.

2. The audible noise levels will not exceed 40 dBA during the day or 35 dBA during the night.

b. Low frequency noise levels (dBC) due to wind turbine operation as measured inside an occupied building or at any property line will not exceed:

1. 20 decibels (measured as dBC) above the pre-construction ambient noise level (measured as dBA). Pre-construction ambient noise studies shall be conducted, by the applicant, for all properties located within 2 times the setback of proposed wind turbine site.

2. 50 dBC.

13.3.1 Wind Turbines shall be designed and sited so that shadow flicker and/or blade reflection will not fall on a shadow flicker receptor as defined in Section 8. The flicker or reflection shall not exceed 10 hours per year for any given receptor.

16.7.1 Wind Turbine Projects shall be sited and operated so that they do not interfere with emergency (fire, police/sheriff, ambulance) radio two way communications (base stations, mobile, and hand held radios, including digital) and/or paging, television, telephone (including cellular and digital), microwave, satellite (dish), navigational, internet or radio reception to neighboring areas. The Owner/operator of the project shall be responsible for the full cost of any remediation necessary to provide equivalent alternate service or correct any problems, including relocation or removal of the Wind Turbine, and any and all related transmission lines, transformers, and other components related to the interference.

23.0 Decommissioning Standards

23.1 The Owner/operator shall, at its expense, complete decommissioning of the Wind Turbine Project within:

1) twelve (12) months after the end of the useful life of the Wind Turbine as determined by the Owner/operator or;

2) as specified in the materials provided at the time of application or;

3) pursuant to remedies described in Section 22.8, The Wind Turbine will be presumed to be at the end of its useful life if no electricity is generated for a continuous period of twelve (12) months.

23.2 Decommissioning shall include removal of wind turbines and foundations to a depth of 36 inches. All buildings, cabling, electrical components, roads, and any other associated facilities shall be removed unless, at the end of the Turbine or Wind Turbine Project‟s useful life, as determined in accordance with section 23.1, the Applicant provides written evidence of plans for continued beneficial use of these components of the Wind Turbine Project.

23.3 Except as otherwise provided by section 23.2, disturbed earth shall be graded and re-seeded, unless the Participating Landowner of the affected land requests otherwise in writing. Any alterations to Town roads or property during decommissioning must be approved by the Town.

23.4 Special Decommissioning Standards for Type, 3 and 4 Wind Turbine Projects

23.4.1 An independent and certified Professional Engineer shall be retained to estimate the total cost of decommissioning (“Decommissioning Costs”) without regard to salvage value of the equipment and the cost of decommissioning net salvage value of the equipment (“Net Decommissioning Costs”). The Planning Board shall review the estimates and determine the amount of decommissioning funds that must be guaranteed prior to operation of the Wind Turbine Project. Additional estimates by an independent and certified Professional Engineer shall be submitted to the Code Enforcement Officer every fifth year after approval, along with the application for renewal of the Operational License, and additional funds shall be guaranteed at that time if necessary in accordance with the revised estimate.

23.4.2 The Owner/operator shall post and maintain decommissioning funds in an amount equal to Net Decommissioning Costs; provided that at no point shall decommissioning funds be less than twenty five percent (25%) of Decommissioning Costs. The decommissioning funds shall be posted and maintained with a bonding company or Federal or State-chartered lending institution chosen by the Owner/operator and Participating Landowner posting the financial security, provided that the bonding company or lending institution is authorized to conduct such business within the State and is approved by the Town of Freedom, whose approval shall not be unreasonably withheld. Adequate funds shall be posted or guaranteed before the Code Enforcement Officer may issue an Operational License to the Owner/operator.

Appendix A – Noise Measurement Standards and Procedures

1. A qualified independent acoustical consultant shall conduct all noise studies. The acoustical consultant shall be hired by and report to the Permitting Authority during the permitting review stage, and by the Code Enforcement Officer for review of any suspected violations or for review of an Operational License.

2. Sound level meters and calibration equipment must comply with the latest version of the American National Standards Institute “American Standard Specifications for General Purpose Sound Level Meters” (ANSI Standard S1.4) and shall have been calibrated at a recognized laboratory within one month prior to the initiation of the study.

3. Except as specifically noted otherwise, measurements shall be conducted in compliance with ANSI Standard S12.18-1994 “Outdoor Measurements of Sound Pressure.

4. Prior to permit application approval, a pre-construction ambient noise level study shall be conducted at each Occupied Building within 2 miles of any proposed Wind Turbine.

5. The tests shall be conducted using both an A-weighting scale (dBA) and low frequency C weighting scale (dBC).

6. Tests shall be reflective of seasonal changes to vegetation and atmospheric conditions. At a minimum one set of tests should be performed during each of the four (4) calendar seasons of the year.

7. All measuring points shall be located in consultation with the property owners and such that no significant obstruction blocks noise and vibration to the site.

8. Outdoor noise level measurements must be taken at 6 feet above the ground and at least 15 feet from any reflective surface.

9. Duration of measurements shall be a minimum of ten continuous minutes for each criteria at each location.

10. Measurements must be made when the wind levels are less than 4.5 mph and with appropriate wind screening for the recording device.

11. Measurements should be obtained during representative weather conditions when the Wind Turbine noise is most noticeable, including periods of temperature inversion most commonly occurring at night.

12. Measurements shall be taken at each of the following three time periods:

13. Each measurement shall be replicated during the same time period over three different days within the same season for a total of 9 measurements per location per season (i.e., three daytime measurements in the winter, three evening measurements in the winter, three night time measurements in the winter). The lowest of the three measurements per time period, per season, will be used to determine the pre-construction ambient noise for that time period and season.

14. For each measurement the following minimum criteria will be recorded:

15. A 5 dBA and/or a 5 dBC penalty shall be applied for short duration repetitive noise or repetitive impulse noise. This is a characteristic “thumping” or “whooshing” sometimes exhibited by larger Wind Turbines. Per Maine TA Bulletin #4, intermittent noise is a more serious nuisance than constant noise.

16. A 5 dBA penalty shall be applied for tonal noise. This is a single or limited frequency noise (vs. broadband noise) associated with mechanical noise artifacts (i.e. high pitched whining, screeching, buzzing). Per Maine TA Bulletin #4, noise over a narrow frequency is a more serious nuisance than broadband noise.

17. For sites being measured with existing Wind Turbines two sets of measurements are required: 1) one set with the Wind Turbine(s) off and; 2) one set with the Wind Turbine(s) running.

18. For nuisance complaints after the Wind Turbines are operational, the measurement points, season, time, and duration of measurements shall be selected in consultation with the affected property owner. If requested by the property owner, continuous measurements may be taken for longer periods of time to capture intermittent nuisance noise patterns.

19. When conducting their pre-construction noise prediction analysis, the Applicant shall make specific reference to: 1) the unique aspect of the mountainous contours and terrain of the area and its effect on noise predictability and 2) line source noise predictions ( emanating from a line of Wind Turbines) in addition to the traditional single point source predictions.

20. Any noise level falling between two (2) whole decibels shall be deemed the higher of the two.

Download original document: “Town of Freedom Wind Turbine Ordinance

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