February 20, 2011
Delaware

County looks to reconcile windmill rules with state law

By M. Patricia Titus, News Editor, Coastal Point, www.coastalpoint.com 18 February 2011

Sussex County Council members this week reviewed a revised draft of ordinances related to wind-energy generating devices – windmills and more – as the county attempts to reconcile the restrictions of county code with the state legislature’s efforts to remove blockades that would prevent the devices from being installed on residential properties.

At a Feb. 1 council meeting, council members had determined that the county cannot issue a building permit for a residential lot of less than 5 acres, as it has no mechanism to approve such permits – “an unintended consequence of the new state law,” they said. That law sought to eliminate both new local restrictions on windmills and the variance process that they have generally required to be legally erected.

County staff noted that the state law did establish setback requirements, as well as restrictions on sound from and signage on the devices, and he said the draft ordinance would offer possible regulations on wind turbines, permitting them as an accessory use on residential properties of less than 5 acres, pursuant to state law.

State requirements for wind turbines now require that there be no more than one wind turbine per lot and that the minimum setback size for the installation is equal to the device’s height. Under the proposed county ordinance discussed on Feb. 15, when placed on residential property, a turbine must also be less than 100 feet tall, comply with existing height restrictions and airport hazard zoning, and be installed per manufacturer’s specifications, with an engineer’s certification that it was installed per those specifications.

Per recommendations from the county’s land-use consultant, the county would also limit installations of wind turbines taller than 100 feet, or of more than one turbine of any height on a given lot, to lots no smaller than 5 acres, in non-residential areas, allowing for a “wind-farm-type” operation.

Additionally, wind turbines of more than 200 feet in height would be limited to industrial zoning districts. All of the taller wind turbines must comply with the same setback requirements, airport hazard zoning requirements and lighting requirements.

Under the draft ordinance, lighting for the wind turbines would follow county regulations for cellphone communications towers, with lighting required every 50 feet.

But Councilman Sam Wilson said he believed the FAA regulations on lighting required only that such structures be lit every 50 feet above 150 feet in height.

“You have trees taller than 50 feet,” Wilson pointed out. “Are you going to have to light them?”

County Planning Director Lawrence Lank noted that there had been complaints from crop-dusting operations about the erection of cell towers without notice to them, as they do fly lower than 150 feet. He said he would work to verify whether the FAA regulations required lighting every 50 feet or only above 150 feet. If it is, in fact, only required above 150 feet, he said changes to the county’s regulations on cell phone towers might also be changed. Either change would mean a separate ordinance would need to be introduced.

Councilwoman Joan Deaver asked whether the new ordinances would permit people to install wind turbines attached to a building, or would require they be on a separate tower.

“They can be,” Lank confirmed of the on-building installations. “But the few we had that were attached were taken off, due to vibration,” he said, specifying that the reason for their removal had not been noise. Lank said the property owners in those cases had needed to go back to the county Board of Adjustments for a second variance to erect the separate structure. He said one of those cases was appealed and the turbine was actually taken down in that case. Some installing the turbines had seen complaints of “some noise and some vibration,” he noted.

“It’s similar to living next to a railroad track,” Lank related, saying that dishes sometimes jiggled.

“Should we continue to allow that?” Deaver asked. “Are engineers looking at that?”

Lank said the law required that the installation be certified to comply with manufacturer specifications, in order to obtain a certificate of compliance, not that it be checked at some later time for possible damage to its supporting structure.

Cole also suggested the county specify what types of engineers can make that certification, so as to not leave room for, for example, a chemical engineer to make the certification.

Additionally, Cole pointed out the requirement that those installing wind turbines remove associated ground structures within 12 months of their no longer being used to generate electricity.

“How do we know?” he said of the removals. “We don’t want the skeletons of these things hanging around because they’re too expensive to take down,” he added, noting a problem with older mobile homes being abandoned because they were too expensive to demolish.

Cole said he felt the county should keep specifications for installed turbines on record, so that the county could keep track of issues related to the devices’ maintenance and removal.

“If a turbine only has a life of – if it’s only safe for 20 years… Our permission is not time-limited,” he noted. “Twenty years down the road, say there’s 50, a hundred, of them, and they’re just sitting there, rusting. We need to have manufacturer’s specifications and a time frame,” he said of their safe operational lifespan.

Some of the questions raised here, I wish our legislature had raised,” Moore said. “This does create legitimate issues that need to be looked at. We need to discuss what kind of restrictions you can put on them and still comply with the state law.”

“We’re supposed to take the Board of Adjustments out of it,” Moore replied. “State law says we can’t be having hearings. Our code has to be consistent with state law. … It’s not a variance. We’re amending the code,” he reminded council members.

Cole suggested that the way to deal with the eventual failure of turbine structures would be to grant permission for them to remain only for a certain number of years, based on manufacturer’s specifications in each case.

The draft ordinance was still being vetted this week, with County Attorney Everett Moore saying he would be checking it to ensure it complies with state code before it is introduced.