A new state law conflicts with Sussex County’s windmill ordinance – bringing the local wind turbine industry to a grinding halt.
Under county regulations, at least 5 acres of land are required for placement of a wind turbine without a variance from the board of adjustment. Over the past two years, several variances have been granted for turbines placed on smaller parcels.
Under new state law, House Bill 70, which also includes section 88 in the bond bill, no conditional uses or other zoning review processes are required for placement of a wind turbine. The new law nixes the public hearing process – even though a public hearing is required under the county’s board of adjustment process. In addition, no restrictions inconsistent with state statutes can be placed on windmills.
County assistant attorney Rick Berl said state law does not address lot size, so the county ordinance remains effective.
“Had the state law said that windmills would be permitted on any lot size, the county’s 5-acre requirement would have been rendered inconsistent and would have become unenforceable,” Berl said. “The same is true with height, which is similarly not addressed by the state law.”
Berl said the problem with the new law is that it does not address existing ordinances in county code. Those with lots of less than 5 acres who want wind turbines – and those who install them – are left in a state of confusing limbo.
“It’s one of those laws with unintended consequences,” said county attorney J. Everett Moore. “We can’t take any more applications for wind turbines because they are in violation of state law [on parcels less than five acres].”
Greg Menoche of Dagsboro, an airline pilot who also installs wind turbines, told county council members Tuesday, Sept. 14, the county should adopt regulations within the state law and update its current ordinance. He said the 5-acre regulation on wind turbines is outdated since it was written for agricultural windmills back in the late 1970s.
“What is the reason to keep 5 acres?” he asked. “If we can meet the setback requirements under the state law, what’s the purpose of 5 acres?”
Instead of lot-size restrictions, regulations in the new state law include a minimum setback of 1.5 times the turbine height including the height of one blade from adjacent property lines. Any county or homeowner association restriction or covenant prohibiting wind turbines is void if the installation location is at least 1 acre. Roof-mounted systems have no minimum parcel size restrictions.
But none of those state regulations pertain to Sussex County, according to the interpretation of the county legal staff, because of the 5-acre requirement in county code.
Menoche, who first addressed council nearly two years ago on updating regulations, said people in the wind-turbine business are worse off now than before. “At least we could go to the board of adjustment to try for a variance, and now they have taken that away,” he said.
County officials have contacted legislators to discuss the ramifications of the bill, and there is a chance a change could be made next year.
“We are hesitant to do anything until we know what the state is going to do,” Berl said. “They wrote this law without a lot of input. We need one comprehensive law throughout the state.”
Even if the county did start the process to update its code, it would take at least until the time the General Assembly goes back into session in January 2011, Berl said.
That time frame doesn’t sit well with Menoche, who has two customers waiting for wind turbines.
He said if a decision by county or state officials is not made soon, he may be forced to take legal action to get back into the business of constructing wind turbines.
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