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Despite the best efforts of one planning commissioner to add greater setback distances from roads and property lines to the county’s proposed regulations for commercial wind farms, the Reno County Planning Commission on Thursday night voted to go forward with the document as written.
The board set a public hearing for 4:30 p.m. Sept. 17 in the Encampment Building on the Kansas State Fairgrounds.
The members agreed to stay until 8 p.m. that night for anyone who can’t come that early, and have reserved the building for a second night if continuation of the hearing is necessary.
The draft regulations set limits on noise and shadow flicker that would determine how close a turbine could be to a home, but don’t spell out specific setback distances other than the height of the turbine plus 50 feet as a setback from roads and property lines.
The amendments for the proposed regulations, attached here, are also available for inspection 8 a.m. to 5 p.m. weekdays at the Reno County Public Works Facility, 600 Scott Boulevard in South Hutchinson, or can be reviewed online a www.renogov.org.
The board spent about 90 minutes discussing the regulations Thursday night, most of that time going around and around on suggestions by Commissioner Steve Seltzer.
“I feel we’ve got two issues with the proposed draft,” Seltzer said. “One is the regulations do not provide really any, or very little, protection for a non-participating property owner who happens to adjoin the project boundaries.
“Second, we’re deferring a lot of enforcement, if you will, to provisions in a development agreement, which I understand is negotiated between the county commission and the developer. To me, that makes it a political process, rather than a regulatory one.”
In particular, Seltzer said, he wanted wind farm decommissioning and mitigation requirements for violating noise, shadow or other stipulations spelled out in the regulations, rather than as part of a negotiated development agreement.
Seltzer said he asked his daughter, a land use and zoning attorney in Arizona, to review the draft and she agreed with his concerns.
Commissioner Lisa French joined Seltzer in seeking a specific process to be spelled out in the regulations for mitigating complaints by residents if the wind farm developer violated noise or shadow flicker agreements.
But in the end, French agreed to have county counselor Joe O’Sullivan review the issue and make recommendations, which the board will consider at the public hearing.
“I just don’t feel putting a 500-foot tower 550 feet from a roadway is proper,” Seltzer said. “I don’t feel putting a tower 550 feet from a non-participating landowner’s property is proper. These people have owned the land for generations. If not generations, years and decades, and we suddenly say you lose the enjoyment of that land, depending on what the current use of the land is, by locating these towers in close proximity.”
Asked what he recommended, Seltzer said “something like 4 to 5 times the tower height.”
“At 500 feet (for a tower height) you’re looking at 2,000 feet,” he said, which is the height NextEra Energy agreed to during negotiations with the county on its permit application.
Commission Chair Russ Goetzen explained that the thought process of the subcommittee, which drafted the proposed regulations, was that anything other than the tower height plus 50 feet would preclude someone with a 40-acres parcel of land from participating.
“We don’t want to go that far in precluding participation,” Goertzen said.
“I don’t necessarily agree,” Seltzer said. “Are we doing to tell other landowners ‘OK, because this guy only had 40 acres and wanted to put a tower we’re going to let him do that so you live with the consequences of that. I don’t think 40 acres should be controlling as far as considering setbacks.”
“To me, the primary responsibility is to protect the landowners of Reno County,” he said.
“All landowners,” Commissioner Bruce Buchanan countered. “It’s a difficult balance. I think we did a good job maintaining that balance. I’m comfortable with tower height plus 50 feet. If you don’t want wind towers at all, adopt the coalition’s recommendations. Four to five times is the same result… This Planning Commission voted against the last proposal.”
“I agree with Bruce,” said French, “If our working goal is to make wind regulations that make wind farms possible… address individual problems as we look at individual permits.”
In a brief letter sent to the commission after its July 31 meeting, Reno County Citizens for Quality of Life asked for “clearly defined setbacks”
“It is irresponsible of the county to expect a developer to be the only protector of landowner rights,” the group, an LLC formed by residents living in the southeast corner of the county where NextEra Energy unsuccessfully attempted to locate a wind farm, stated.
“These regulations will provide guidelines for developers that need to be met prior to submitting a project proposal. However, the primary objective of the county should be to protect the county. This kind of ambiguity leaves the county vulnerable to legal action from both developers and private citizens.”
That group previously submitted its recommendations, which called for setbacks for non-participating landowners equal to 10 times the height of the tower unless waived.
Seltzer – appointed to the planning board in December to replace Steve Westfahl, who two of the three county commissioners voted not to reappoint – also asked that a lower turbine noise limit at night be added to the regulations.
“Studies I’ve read indicate it should be different because of the effect of noise in the evening, versus the daytime. When it’s quiet and you’re trying to sleep, it’s more noticeable.”
The proposed regulations set a maximum annualized noise level of 40 decibels. Seltzer proposed setting it at 35 decibels at night.
Goertzen noted that the 40 decibels was a compromise based on recommendations from the National Association of Regulatory Commissioners, which suggested “40 as the ideal and 45 as an appropriate regulatory limit,” and that the subcommittee was trying to keep the regulations simple.
At this point, the debate again turned to whether mitigation for violating noise and shadow flicker limits should be part of the regulation or the negotiated development agreement.
French said the regulations should at least spell out a path for resolving disputes, with specific measures in the development agreement.
“There should be a clear resolution dispute process lined out ahead of time,” she said. “So we know the process from the beginning, not after the fact.”
Seltzer contended having specifics in the regulations would take the politics out of it and make it uniform for all applicants, since county commission members change with each election.
Public works director Don Brittain argued, however, the county commission is the highest authority and it was up to that board to determine how to ensure the regulations are followed.
Buchanan said he agreed there should be more definition in the regulations, but without specifying the entire process. He suggested having County Counselor Joe O’Sullivan draft something.
“It does not need to be a 30-page document,” Buchanan said. “Maybe a couple of more paragraphs describing it.”
Following the public hearing, Reno County planner Mark Vonachen advised the board in response to questions about the process. The board can accept the draft as proposed, stipulate amendments to it or ask staff to research issues or draft changes and adjourn the hearing to a later date, he said.
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