Paul Brouha: Good Neighbors Don’t Trespass | April 2, 2016 | www.caledonianrecord.com
It is there as day breaks on a still spring morning when I am outside listening for a wild turkey’s gobble. It is there when I cross the yard to work in my garden. When I go out for a walk with the dogs it comes along. I feel its vibrations while sitting at my desk with the windows closed on a winter afternoon. It is wind turbine noise from the Sheffield Wind Project which invades our property on a northwest wind. It is especially evident on rainy/snowy days when the clouds hang low over our neighbor’s ridgeline where the 16 wind turbines have been erected.
In Vermont, we homeowners have a right to the peaceful use and enjoyment of our property. We also have a right to be protected against unlawful trespass on our property.
In granting Certificates of Public Good and their associated establishment and measurement of noise standards for wind turbines inside neighboring homes rather than at property lines, the Vermont Public Service Board (PSB) has essentially awarded wind developers an uncompensated nuisance noise, health, and safety easement across private property even though that neighboring parcel has not been leased to the wind developer.
In effect, future development rights on thousands of acres of private property have been stripped from Vermont’s rural citizens and handed to their neighbor’s tenant, the wind developer, without compensation as required by Article 2 of the Vermont Constitution.
The basic premise of zoning is to separate conflicting uses of land. When the PSB establishes safety setbacks and noise emissions that are measured at or inside a neighboring home rather than at a property line, there is in fact NO separation of the conflicting use.
The definition of trespassing is “to enter the owner’s land or property without permission.”
Vermont’s PSB has established noise limit criteria at and inside neighboring homes rather than at property lines. Vermont has legalized trespassing onto our properties, inside our homes and in our rural communities. It has enacted trespass zoning.
Here is how it works: First, after filing a noise complaint, the wind company is supposed to review its data to ensure the noise is within the noise limit. Most often, and in my particular case, the wind company reported data that showed it was in compliance with the CPG. I then had to prove the noise was too loud on my property. Even when I submitted an expert report that showed the noise on my property exceeded the noise limit, in order to establish whether a violation of the noise standard had occurred, the PSB authorized the developer to come into our home (into our 2nd floor bedroom, actually) to conduct another test. As a result of that test, which confirmed my expert’s report, the out-of-state wind company now wants to monitor and audio record what is happening in our bedroom 24/7 for a month. And the wind company’s owners want access to our bedroom at any time they feel like making a measurement.
Neighbors who oppose wind developments are often characterized by wind developers as NIMBYs. While we don’t want wind developments in our back yards, we neighboring landowners simply recognize that the trespass zoning granted to wind developers is in reality a subsidy extracted from us without any compensation. Worse yet, the regulators in this state allow the wind industry to intrude inside people’s homes to determine compliance with the state’s already-poor noise standards. Basically, they and the developer want to make the whole complaint process so intrusive and unpalatable that we’ll never complain again!
Where the wind developer can use these unleased properties for nuisance noise and safety easements free of charge, they have no reason to approach the neighbors to negotiate a fair price for their loss of amenity and property values. Trespass zoning has deprived wind project neighbors of all economic bargaining power. The PSB’s approval of trespass zoning has donated Vermonters’ private property to the neighboring landowner’s wind developer tenant.
What the Legislature needs to do is to amend Section 248 to require developers to comply at all times of operation with a reasonably recognized noise level. The current noise limits in most CPGs are 45 dBA for specified outside zones and 30 dBA for inside a neighboring residence. These noise limits are not enforced evenly at all locations and the wind company is able to manipulate the data to show compliance, when the noise exceeds the established levels.
To combat the lack of integrity from both the PSB and the wind developer, Vermont landowners propose a 37 dBA LMax noise limit standard attributable to the wind turbine generators at and beyond the plant facility property line and 30 dBA LMax in residence interiors neighboring the plant facility property. Further, to ensure that landowners are protected from future violations, the Legislature must require the wind developer to fund the costs of continuous independent transparent monitoring at all existing and future wind projects, and data collection and reporting of noise generated by the plant facility at and beyond the property line.
By moving turbine noise standards to property lines and requiring monitoring, the Vermont Legislature would simply be holding wind developers (and the PSB) accountable for the effects of their projects: noise pollution, turbine rotor failure and its attendant debris field, property value loss, and visual blight. During the current session, the Legislature needs to restore property rights by eliminating trespass zoning and to hold the PSB accountable for respecting the private property rights of Vermonters. Good neighbors don’t trespass.
Paul Brouha, of Sutton, lives on property that abuts the Sheffield Wind Project.
URL to article: https://www.wind-watch.org/news/2016/04/02/good-neighbors-dont-trespass/