It's an ill wind in Colebrook: Zoning loophole allows preliminary work for wind turbines without local debate
COLEBROOK – Renewable energy is now an American mantra, but homeowner Stephen King has learned that a legal limbo awaits anyone who wakes up to discover that a wind farm might be going up next door.
Because of a loophole that allows zoning boards to approve test towers for wind turbines without notifying neighbors, residents near terrain favorable for wind energy could face the prospect of a major wind energy project being built in their community with limited ability to challenge it.
What’s more, the state, through its clean energy grants and its final permitting authority – the Connecticut Siting Council – inadvertently supports the bypassing of local zoning during a wind energy development.
That is the issue being tested as Connecticut’s first potential site for a wind farm has entered its research phase on the western fringes of the Hartford suburbs.
Last fall, two politically connected wind-energy entrepreneurs who run BNE Energy Inc. of Waterbury, cleared 2 acres along Route 44 in Colebrook and put up a 180-foot meteorological tower to test the feasibility of developing a wind farm. The tower has anemometers and wind vanes to test the speed and direction of wind over eight months to a year, data that are required before the siting council can begin the approval process.
Even though the test tower could lead directly to a commercial enterprise – within a year or two, as many as five, 320-foot turbines with blades as long as 115 feet could be whirling over the site – and even though the proposed wind facility would be in a residential zone, the town of Colebrook issued permits for the project without a public hearing or notifying neighbors.
That decision – affirmed at a contentious zoning board of appeals hearing in Colebrook in February – is now being challenged by King and other neighbors in a case scheduled to reach Superior Court in Litchfield in August.
King, a network manager for a Torrington manufacturing company whose house and land borders the BNE site on Flagg Hill Road, first learned about the wind farm while making coffee in early December. Through the windows of his kitchen, King saw a Volvo excavator widening an access road in the woods south of his home.
When he called a neighbor about the excavator, King learned that about 2 acres on the 75-acre property owned by BNE had been cleared and that the town had approved a permit to install the research tower.
Two days later, when he met with Colebrook First Selectman Thomas McKeon and Karen Griswold Nelson, the zoning enforcement officer, King was told that a permit was issued for the tower because zoning regulations allowed such “temporary uses” in a residential zone, and thus no prior notice to neighbors was required.
The state legislation creating the siting council in 1972, revised in 1981, gave the state the authority to override local zoning because electrical generating facilities – from nuclear plants to trash-to-energy projects – are unpopular and invariably arouse local opposition. These powers now apply to any wind turbine facility that will generate more than 1 megawatt of electricity. BNE has said that it plans to build a 10-megawatt facility, which would probably mean between three and six wind turbines over 300 feet high apiece.
Colebrook had just set in motion a large and highly visible energy project that it would have virtually no control over if BNE decides to build on the site. BNE’s exploration of the Colebrook site, and another in Prospect, was supported by $121,000 in low-cost loans from the Connecticut Clean Energy Fund, a state agency that provides seed money for renewable energy projects from surcharges paid by Connecticut electricity consumers.
BNE Energy is a partnership between Greg Zupkus, a former aeronautical engineer and telephone company executive, and Paul Corey, the former chairman of the Connecticut State Lottery. Corey was most recently in the news in 2005 for giving John Rowland, the former governor, a hot tub.
“I don’t know anything about the local process or informing the neighbors beyond what the town told me to do,” Zupkus said. “The first selectman and the zoning officer in Colebrook were very helpful and supportive from the get-go, and they never informed us that we had anything else to do.”
King said he feels torn between two allegiances – the need for renewable energy and his rights as a homeowner.
“I am actually a very strong supporter of green initiatives, and I might agree in the end that a wind farm here makes sense,” King said. “But, especially since state money is involved, I think that these ‘green entrepreneurs’ should follow local zoning laws.
“This is a huge decision for Colebrook. Five, 300-foot towers right over Route 44 is a massive commercial presence for a rural town. This should have been done out in the open, with everyone in town participating in the process and having their say.”
At a zoning board of appeals meeting in February, King and several other Colebrook residents asked zoning officials if they were aware, when they permitted the temporary meteorological tower, that they had in effect ceded all local decision-making power to the state Siting Council.
Nelson, the zoning enforcement officer, said that because the test tower was installed on a lot previously zoned for a single-family home, where temporary research structures are allowed, the tower was allowed.
“I signed the zoning permit for a temporary [meteorological] tower on land owned by BNE,” Nelson said at the zoning hearing. “Pure and simple, that’s what it is, similar to a zoning permit for an accessory structure for [a] house, for a deck or for whatever.”
Nelson conceded later at the hearing that the state Siting Council will be able to pre-empt town zoning laws and would have final jurisdiction over the permitting of the wind farm.
After the Zoning Board of Appeals rejected his bid, King hired a lawyer and sued the town and BNE. His complaint lists, among other charges, that Colebrook had failed to follow its own zoning procedures, which forbid commercial structures in a residential neighborhood without public hearings and a special use permit. The case is scheduled to be heard in August at Superior Court in Litchfield.
Virtually everyone involved in the zoning for BNE’s tower agrees that the issue of how to regulate wind farms exists in a legal limbo that gives neighbors very few rights. On the one hand, local land use regulations tend to favor research projects for renewable energy. But once the feasibility of a project is established, the state Siting Council – with its powers to override local zoning – takes over.
“The siting council will bend over backwards to make sure the people of Colebrook feel that they’ve had their say in this project,” said Derek Phelps, the executive director of the state agency. “We will notify the town, every neighbor and concerned party, and hold hearings out there. All the relevant state agencies from transportation to the Department of Environmental Protection will have a chance to weigh in.”
“But,” Phelps said, “a project that falls under our jurisdiction does not require compliance with local zoning codes. We try to minimize environmental impact to the maximum extent possible, but there is no local planning and zoning input required of our decisions.”
Colebrook officials say a decision to allow a temporary meteorological tower could pave the way to permanent wind turbines. But, they say, they are powerless to change the process right now.
“Obviously local community attitudes and local zoning have not caught up with wind power,” said John Garrells III, Colebrook’s planning and zoning chairman.
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