Focusing zoning on health, safety, welfare

“Put another way, if the proposed activity cannot be performed in our communities in keeping with health, safety and welfare, it must not be permitted,” he said.

Martis believes reasonable wind energy zoning regulations driven by the principles of consent and compensation can place the burden of deciding whether a community hosts utility-scale wind development upon the developer rather than upon the zoning authority. He said as long as zoning regulations are not arbitrary or capricious, they are legally strong if challenged in court.

“There are benefits to wind energy, let’s be clear about that,” he said. “Turbines do pay off their C02 debt in about 18 months and they are carbon negative, but at a very high price. The main benefit is for the developers.”

Martis focused on turbine height, setbacks, noise and property values in his presentation:

• HEIGHT: Martis noted many local zoning ordinances restrict residences to two- or three-story homes even though four- or five-story homes can be built safely.

“In general, communities are free to regulate the height of structures simply on the basis of appearance,” he said. “Wind turbines are no different than any other lawful use. You may restrict their size for the sake of appearance.”

Martis said often township or county officials fall into a false debate in which they believe that unless you can prove turbine noise or flicker harms health, there is no basis for limiting size or increasing setbacks.

“But there is no such legal requirement,” he said. “We can regulate solely on aesthetics, just as we do with maximum home heights and setbacks, maximum sign sizes, buffers and berms between conflicting uses, etc.”

• SETBACKS: Martis noted that turbine setbacks vary widely depending on location – from 1,000 feet in Michigan to 1,500 feet in Illinois to 2,500 feet by the U.S. National Research Council to 5,280 feet in France and Germany to 6,500 feet in Manitoba, Canada.

Martis said according to health and safety instruction manuals from Vestas and Nordex (turbine manufacturers), if a runaway turbine operation or fire should occur, access to the area must be restricted by 1,640 feet.

In response to this portion of Martis’ presentation, Albert Jongewaard of Apex provided the Daily News with a copy of a letter from Nordex Vice President of Operational Excellence for North America John Blaylock and Vice President of Engineering for North America Robbie Lovstuen. The letter written in September 2020 states that Nordex’s product manuals should not be misinterpreted as guidance for setback distances for turbines from homes, roads and property lines. The letter says the safety manual guidelines are specifically intended to protect the safety of turbine mechanics and technicians regarding working on turbines during lightning storms.

Similarly, a letter from Vestas American Wind Technology written in April 2019 states that Vestas’ site emergency response plans should not be misinterpreted as guidance for setback distances for turbines from homes, roads or property lines and that the language of the plans only applies in case of an incident.

Jongewaard also provided the Daily News with a 2018 report from GE Renewable Energy which recommends setback considerations of 1.1 times the tip height of a turbine with a minimum setback distance of 170 meters (about 558 feet) from a residence when it comes to considering blade failure or ice throw.

Martis recommended that turbine setbacks be measured from people’s homes, not from property lines, in order to avoid trespass zoning, as he noted the express goal of zoning regulations is to separate conflicting land uses.

“If you are regulating setbacks to protect families and private property from fire or rotor failure, 1,640 feet or a multiple of turbine height equal to 1,640 feet as measured to property lines would be a reasonable minimum for 500-foot class turbines,” Martis said. “If you are regulating setbacks to serve as a proxy for noise regulations, then distances up to 1.25 miles from unleased property lines may be reasonable. Equitable wind energy zoning should not forcibly donate unleased property to the neighboring landowner’s tenant. By setting large setbacks to unleashed property lines but small ones to leaseholder’s homes and permitting a waiver, you are in a stronger position in the unlikely event of a legal challenge.”

• NOISE: Martis noted that 20 decibels of noise is often compared to the sound of rustling leaves, 30 decibels to the sound of a whisper, 40 decibels to the sound of a refrigerator and 50 decibels to normal conversational speech; however, he pointed out that the 55 decibels some turbines emit are a much higher noise level than people currently experience in the quiet parts of their community. He said according to the World Health Organization in 2018 conditionally recommended reducing noise levels produced by turbines to below 45Lden, as turbine noise above this level is associated with adverse health effects (45Lden meaning 45 decibels in the daytime, 40 in the evening and 35 at night).

Martis added that the Ontario Ministry of Environment’s Sound Guidelines for rural areas establish maximum permissible sound levels at residences of 40 decibels, which is consistent with standards set by the U.S. Environmental Protection Agency.

• PROPERTY VALUES: Martis said wind developers like to cite a study on the topic of turbines and property values published in 2013 (which can be read at real-analytics.com/Wind%20Turbine%20Study.pdf) which says there’s no significant impact on property values. However, Martis also noted that Ben Hoen, one of the authors of that piece went on to say, “I think one of the things that often happens is that (wind) developers put our report forward and say ‘look, property values aren’t affected,’ and that’s not what we would say specifically. On the other hand, they have little ground to stand on if they say we won’t guarantee that.”

Martis cited independent studies showing a 14% to 59% loss in property values. He also cited a Berkley Lab report from 2018 (which can be read at emp.lbl.gov/projects/wind-neighbor-survey) which he said shows that one in four people within half a mile of turbines have a negative attitude about turbines. He noted the study also showed nearby turbine neighbors could hear the turbines inside their homes, whether their windows were open or closed. Meanwhile, 42% of people within half a mile of the turbines simply didn’t like the visual impact while 30% of people three to five miles away were annoyed by the visual impact.

“Twenty-five percent of the people living near turbines will not like it,” he said. “The closer you are, the more negatively you view it. If you stood underneath one and did not hear it, it was not at full power.”

• DECOMMISSIONING & ENFORCEMENT: Martis recommended zoning ordinance language for decommissioning – a financial guarantee to take care of the removal of inoperable turbines. He recommended language that requires bond to be posted in an amount equal to the cost of decommissioning as determined by a third party engineer as selected by a local municipality and paid for by the developer. He said the language should include a reassessment every three years and that a cash escrow is stronger than a bond.

Martis also recommended an enforcement escrow account, as he noted a municipality’s liability policy doesn’t pay for enforcement action but only helps pay if a municipality is sued.

“One thing turbine host communities have discovered is that enforcing wind turbine ordinances is expensive when the regulated entity – the developer – has financial resources that outstrip township or even county coffers,” he said.

Martis recommended local municipalities find out what the majority of their community wants either by conducting a survey or by adopting a strong wind ordinance. He noted that if a wind developer has adequate support, they can place an amendment on the ballot for a referendum and if they prevail, the majority of the people will have spoken.

“Place the burden of proof on the developer, rather than your constituents,” he said.

Martis concluded his presentation by noting that while most land-use changes are fairly benign (lot size changes or sign ordinances), wind turbine impacts are disproportionately large due to their size.

“Wind developers ask communities to adopt zoning language that essentially awards free safety and nuisance easements across non-participating properties,” he said. “Reasonable wind zoning demands that those easements be negotiated individually and privately between the developer and the impacted landowners rather than forced upon them by zoning regulation.

“The wind developer prefers to place the difficult decision of ‘do we let wind in or not?’ in the hands of the zoning authority alone. By creating two-stage zoning and setting those limits at the property line, the decision as to whether the project proceeds or not is now in the hands of the private property owners and the developer.

“Wind and solar are not a special land use,” he summarized. “You can regulate them as you see fit. The state will not come in and take control. Local officials have sworn an oath to protect their citizens’ health, safety and welfare. Developers are under no such oath. Keep that in mind when they are testifying before you.”

Martis answered multiple questions from community members during his more than two-hour presentation (which can be viewed by searching for “Kevon Martis Montcalm County Wind Zoning Meeting 4-8-2021” on YouTube). Martis welcomes additional questions via email at kevon@kevonmartis.com.

“I believe in direct science and everybody doing their due diligence and research and sir, I commend you for what you have been able to do for us tonight,” David Bean of Pine Township told Martis. “Thank you.”