Sussex County code regulating wind turbines is out of step with a new state law and will likely be updated.
County legal staff was instructed at the Tuesday, Oct. 5 county council meeting to draft an amended ordinance, because the current antiquated regulations – dating back to the late 1960s – conflict with state law.
Under county code, windmills, primarily for farm use, are restricted to parcels of at least 5 acres. A special-use exception with a public hearing before the board of adjustment is required for placement of a wind turbine on a smaller parcel. State law now prohibits any type of zoning review process – or a public hearing – as a requirement to obtain a permit for a wind turbine.
But as Richard Berl, assistant county attorney, pointed out, the state law does not address lot size and height restrictions. “That means the 5-acre rule is still in effect,” he said. And since hearings are not permitted, the county can no longer grant special-use exception to allow for construction of a wind turbine on smaller lots. Berl called that an unintended consequence of the state law.
“The state wanted us out of the process,” Berl said. “We are stuck and we can’t take any more applications on less than 5 acres.”
Berl said state lawmakers might not be able to fix the law, so there are two options: work to rescind the law or update the county’s code.
Land-use consultant Paul Driscoll of Urban Research and Development Corp. provided council with a detailed analysis of a proposed draft amendment.
Driscoll recommended amending the county ordinance to eliminate the minimum 5-acre regulation, remove farm use and the special-use permit and add that only one wind turbine could be placed on a lot. He said state standards relating to setbacks and noise should also be adopted. Those regulations specify windmill height cannot exceed the distance it is set back from the closest property line, which would generally restrict wind turbines to lots of about an acre; the noise cannot exceed 60 decibels; and wiring must be underground.
Driscoll recommended provisions for commercial wind turbines should be covered by appropriate zoning regulations in commercial and industrial zones. State law addresses only residential wind turbines and not those in commercial areas.
Berl said while homeowners associations may not be able to prohibit wind turbines, covenants can be adopted on height and lot-size requirements.
Council gave no indication it would even support an amended ordinance. Council President Vance Phillips, R-Laurel, hinted he had more support for an effort to rescind state law. “What they are doing is taking the voice of the people away,” he said. “It’s another example how a state law takes away home rule.”
He added he would save his final judgment until after hearing comments during a future public hearing on the amended ordinance. He said it was important to evaluate the effect of an ordinance that would allow residential wind turbines on all lots of about an acre or greater throughout the county.
“It was a knee-jerk reaction that made them [legislators] feel good,” said Councilman George Cole, R-Rehoboth Beach. “We need a good ordinance to address all the concerns.”