February 4, 2011
Delaware

County council to draft new ordinance on windmills

By Monica Scott, Staff Reporter, Coastal Point, www.thecoastalpoint.com 4 February 2011

Sussex County Council members this week moved to have an ordinance regarding wind turbines drafted. The council, at its Feb. 1 meeting, instructed staff to look at tackling how the county might change its restrictions on energy-generating wind turbines – particularly to address what some perceive as conflicts between county code and a 2009 state law that was intended to prevent local government and home owners associations from prohibiting windmills and other wind-energy devices from being installed.

County Administrator David Baker reminded the council that their land-use consultant, Paul Driscoll, had spoken to them last fall about possible amendments that would eliminate the county’s pre-existing 5-acre minimum lot size for windmills, eliminate the process requiring special-use exemptions for the devices, allowing windmills as accessory uses, and eliminate language that states they must be used only on farms.

In October of 2010, the council questioned whether there was a need to even look at their existing ordinance, since the current ordinance includes windmills on less than 5 acres of land as one of the uses permitted as a special-use exceptions, provided that the Board of Adjustment finds that the uses in each individual case will not “substantially affect adversely the uses of adjacent and neighboring properties.”

Sussex County also permits, in most zoning districts, windmills and wind-powered generators either as special-use exceptions or as an accessory use. (In AR-1 and AR-2, they are permitted as an accessory use on a “farm 5 acres or more,” and as a special-use exception on a “farm less than 5 acres.”)

That might suggest that the county’s existing Board of Adjustments process would continue for those applying for a windmill permit. However, what has happened is that the county has ceased to offer the Board of Adjustments process altogether – leaving would-be windmill owners and their installers in limbo.

County officials say they believe the State of Delaware eliminated any way for anyone who has less than 5 acres to plead an exception case before the county’s Board of Adjustments – in what they say has been an unintended consequence of the new state law. The state law does not allow for any hearing processes – according to legislators, to permit windmills without requiring hearings. But the county argues that the law now specifically prohibits such hearings, even though the county code requires them for exemption to the existing 5-acre minimum.

They argue that the state law has therefore stripped the county of the authority to grant special-use exceptions for windmills that do not comply with existing county code, which requires 5 acres. The county argues that it is in compliance with state law, as the county has a specific acreage rule written in their existing ordinance, but the state does not mention minimum parcel sizes in its law.

Despite that contention by the county, the council revisited the subject of windmills again at this week’s council meeting.

It is that “unintended consequence” that has local business owners stating their concern over the county’s interpretation.

“At the present time, I am unable to obtain a building permit for my customers who wish to have a wind turbine installed on their property unless that customer has at least 5 acres of land or more,” local business owner Greg Minoche wrote in an e-mail addressed to county council and forwarded to the Coastal Point. “When asked why they would want to have a wind turbine installed on their property, the two most common responses are to reduce their electric bill and to use the natural resources God has provided us. The inability for my business and my customers who reside in Sussex County to gain an approved building permit is effecting more than a half a dozen local businesses.”

Councilman George Cole, who said in October that the county should be lobbying the State about the importance of private deed restrictions, reiterated that he thought the council should do just that.

The state law prohibits enforcement of any ordinance or rule enacted by a county, municipality or homeowner’s association after August 2009 that limits or restricts use of renewable energy systems. But, because the state law did not address minimum lot size – instead, offering setback requirements – the county council believes their current ordinance could stand as is.

“Private deed restrictions are important in land use,” Cole said. He also noted the part of the state law that states ordinances drafted after August 2009 they are null and void. “So anything before, it’s valid?” he asked.

“It says you can’t adopt anything [after 2009],” said Cole, adding that it doesn’t address laws already on the books prior to that point. “But you’d have to go back to existing subdivisions, and the government comes in and says, ‘You are going to get them [windmills]? Can we get some clarification?”

“What direction do you want to take?” asked Council President Michael Vincent of council members. “Do you want to drop it or do something?”

Cole also asked about inspections of towers, and asked if the county would require some type of inspection process. “A number of things go into it.”

“If we went from 5 [acres] to one, are we allowed to do that?” asked Cole. Moore noted what areas the state regulations address – including setbacks, sounds, signage and historical district placement – and that the law said specifically that county laws could not be more restrictive.

“I believe that’s the direction that’s been taken,” said Moore. “There are certain things we cannot address.”

Moore said Rick Berl (Board of Adjustment attorney), Lawrence Lank (director of Planning & Zoning), Vince Robertson (Planning & Zoning attorney) and Patrick Vanderslice (staff attorney under County Attorney J. Everett Moore) would be drafting the new ordinance, but he later clarified that it would be drafted by one of those men and then circulated for comment.

As to when that will happen, Moore said they were meeting this Friday to discuss the direction they might take. Baker said they would bring it back to the council once something was put together.