Editor’s note: The author of this guest column wrote a two-part series, “Citizens fight back with factual rebuttal,” with part one appearing in the Jan. 16-22, 2013, issue, and part two appearing in the Jan. 23-29, 2013, issue.
By Karen Kenny
The Concerned Citizens of Boone County
Responsible wind turbine siting protects the property rights of all residents and, thus, must clearly be stated in a Boone County Wind Energy Conversion System (WECS) ordinance, regardless of whether a special-use permit has been filed or granted. Zoning code is intended to minimize the conflicts between any special use and existing uses, and to promote the public health, safety and welfare of its citizens.
A picture (see accompanying image) of a DeKalb, Ill., non-participant resident showed multiple turbines located near their primary structure. What if this were Boone County with 500-foot turbines and 1,000-foot setback from all homes and schools?
Why does Boone County have a setback of 1,000 feet for residents?
In Illinois and elsewhere, many counties fell all over themselves to adopt the so-called “1,000-foot voluntary industry setback” between large wind turbines and residences. In some states, it has become part of the “model” wind ordinance created by wind developers and energy agencies. Boone County is not an exception; rather, it appears to have fallen into the same trap as many other counties in the state.
It is extremely difficult to find any publicly available information from state agencies or the wind energy industry that directly addresses the scientific basis for adopting “1,000 feet” as the de facto setback between wind turbines and residences. The relatively frequent use of a 1,000-foot setback appears to result not from a confluence of independent studies or literature reviews, but rather from the common (and readily admitted) practice of one jurisdiction simply “cloning” another’s ordinance with little deliberation or modification. Simply adopting a setback ordinance because someone else did too does not constitute a scientific basis for that setback, but it does tend to result in a frequent repetition of that distance, both among zoning officials and the media, leading to a perception that it is some kind of “standard” based on empirical evidence.
Does the 1,000-foot setback have any basis in science? And, if 1,000 feet does have a justifiable basis in science and legal theory, why aren’t government agencies and wind proponents extolling it? Where are the studies and the independent peer review process showing that a setback of 1,000 feet adequately removes the human health, safety and welfare issues associated with ice and debris throw, noise, shadow flicker, decline in property values, and other well-documented side effects of large wind turbines?
Why two setbacks are necessary, one setback for the participant and another for the non-participant
1. Setbacks, noise standards and property value guarantees are the KEY to defining health, safety and welfare.
2. Participating landowners in a wind project are willing to take on more risk than non-participating landowners.
3. The current Boone County WECS ordinance is written for the participant and NOT for the non-participant.
Why should the county want to protect non-participant residents at their property line?
1. Zoning precedence:
u The Boone County Zoning ordinance establishes the primary setback from the following items/establishments from the property or lot line: these include, but are not limited to, building structures, signs and outdoor advertising, adult entertainment establishments, mobile home parks, temporary use and special events, lighting for off-street parking, swimming pools, hot tubs, outdoor spas, utility meters, and distribution boxes and fences.
• The primary language in our ordinance establishes setbacks from property lines as precedence for the protection of the neighbor.
• To be consistent with our county code, the primary setback for wind turbines should be from the neighbor’s property lines, not from the neighbor’s primary structure.
2. Buildable lots/lots of record:
• Unless your home is in existence when the turbines are sited, a developer is not required to conform to any setback ordinance for your “future” home.
• Mainstream Renewables was asked about this topic at the 2010 dinner that was held in Boone County, and their response was that they do not take future building locations (i.e., lots of record, home sites that would be granted through putting some of your farmland into a farmland conservation area) into consideration when siting turbines.
• For instance, using the 1.1x height from property line setback, you could have a wind turbine 550 feet from a property line, but the 1,000-foot wind turbine setback would encroach into the neighboring property by 450 feet. THIS IS A TAKING OF A USE!
• The Fifth Amendment states that when private property is “taken” by the government (or, in this case, a utility entity granted a siting by the government), then the property owner is to be “justly compensated” for that taking.
• The county must honor each lot of record by having setbacks from property lines in the WECS ordinance.
3. Wind Project Developers use non-participant’s property as a nuisance/impact buffer:
• Matt Boss (Mainstream Renewables) stated at the Dec. 12, 2012, county board meeting that the proposed text amendment of 1,500 feet from property lines “basically gives the same rights to an acre of corn as it gives to a home.” This statement says a great deal:
— Wind Farm developers treat a non-participant’s corn differently than a non-participant’s home. What right does the wind developer have to use my corn — or anything else on my property, for that matter (equestrian center, horse barn and pasture, alpaca barn, dairy, sheep, beef and goat barn, dog kennel, fruit farm, nursery stock acreage, bee hives, golf course, school playground, etc.) — for their benefit? But, this is exactly how the developer views your farm land. If it’s corn (or anything else), then they use it as a buffer for all the nuisance issues caused by industrial wind turbines.
— Below is the gag order statement from GSG V LLC (Mainstream) contract for Boone County participants that admits impacts causing nuisance issues.
— Sec 13. (k) Estoppel.
“The Landowner understands that the Wind Power Project will cause impacts to the Lands. The Landowner shall not commence any action or proceeding with respect to noise, odors, vibrations, lightening, electromagnetic fields, or any other perceived or real nuisance related to the Wind Power Project and is hereby estopped from pursuing such action or proceeding.”
• Mainstream’s sound and acoustic expert Ms. Erin Johnston, employed by GL Garrad Hassan out of Portland, Ore., testified in Lee County on Nov. 13, 2012, that Class C land in Illinois has no audible sound limits. Ms. Erin Johnson also admitted, under oath, that Mainstream provided a chart showing all of the township land to be only labeled as Class C, agriculture land. This chart did not indicate any land for residential functions, except for the actual residence. Hence, not only does the wind developer use your corn as an impact buffer, but also your residential property around your home such as porches, patios, swimming pools, playgrounds, etc. This would also be true of schools and their school yards. The land surrounding the primary structure is all considered Class C land that has no sound limits, according to Ms. Erin Johnston.
• Studies have shown that an average-size turbine (2 megawatts, 100 meters high) located 1,000 feet away from your residence can produce the same amount of noise on your property — day and night — as a suburban area during the day (51 decibels).
Why should the county protect our schools, students and teachers with a safe setback?
1. A North Boone District No. 200 board member was quoted in the July 2011 Boone County Journal as saying, “I don’t think 1,000 feet is enough of a setback. There are a lot of issues with the ordinance. It is very weak.”
2. In DeKalb County, Illinois, a blade was thrown 1,500 feet from a 400-foot turbine onto a neighbor’s property. This is a safety issue, not only for residents, but for our schools as well — which is why setbacks must be from property lines.
3. Adams County, Illinois, specifies in their WECS ordinance that the setback from schools will be 1,500 feet from property lines, whereas the Boone County ordinance says 1,000 feet from our school buildings.
Why should the county protect our private landing strips and our Poplar Grove Airport?
1. The airports and RLAs (Restricted Landing Area) were here first. They have been granted the privilege by special-use permits before any wind project; thus, their rights need to be protected. Without protection, the RLAs may lose their ability to use their runways and/or pilot safety will be compromised.
2. Northern Boone County is used for student pilot training by the Poplar Grove Airport and the RLAs located in northern Boone County act as known emergency landing areas.
3. FAA regulations state flight operations must remain 500 feet below the clouds and 500 feet from the nearest obstruction during daylight hours, at a minimum. At night, those restrictions are even higher with a distance of 1,000 feet above the highest obstacle within a horizontal distance of 5 miles. These are minimums, and visibility conditions and other requirements only add to the minimums mandated by the FAA.
4. Iroquois County, Illinois, has a 2-mile setback for RLAs, and several other counties in Illinois are adding tall structure ordinances to their zoning code to protect the existing RLAs.
Why should the county protect the existing oil pipeline?
1. The Enbridge line located in our county is a crude oil line transporting tar sands crude oil from Alberta, Canada. This oil is heavy crude that is diluted with a toxic mix of hydrocarbons (typically toluene and benzene) to “lighten” up the oil so it can flow.
2. The point here is that if the pipeline were ruptured, you not only have an oil spill on your hands, but also a spill of highly toxic hydrocarbons, which can leach into the groundwater. (See Enbridge oil pipeline rupture in Kalamazoo, Mich., July 26, 2010, to see what happens to groundwater, rivers and property when a pipeline is ruptured. It still is not cleaned up, and 70 percent of the property owners are in suit against the pipeline company.)
3. The pointed question regarding wind turbine siting should be, “How to prevent a pipeline rupture from a wind turbine collapse or malfunction?”
4. A typical pipeline is buried 5 feet deep. This depth may be adequate for some land uses, but is woefully inadequate to protect from a large structure or blade penetrating the ground because of a wind turbine collapse or malfunction.
5. The pipeline not only needs to be protected from the fall-over of a turbine but also from the stray voltage that is typically emitted from turbines and can cause premature pipeline deterioration.
6. To resolve any future conflict, the pipeline company and the wind developer should sign off on all wind turbine sitings, therefore releasing the county from any responsibility for determining a safe setback distance greater than the fall distance plus the pipeline easement of 90 feet.
Why should the county be more specific and less vague with their WECS ordinance?
1. Neither the citizens nor the developer like the uncertainty of a vague ordinance in which no one knows what the rules are and much time is spent defining specifications for each special-use application.
2. From July 2012, through February, 2013, Lee County ZBA members listened to 25-plus public hearings on a new proposed wind project in their county. Lee County must go through this process each time a special-use permit is filed because their ordinance is vague.
3. Matt Boss, vice president for Mainstream, presented at the 2011 Illinois Wind Conference and stated in his presentation titled “Developers Like Clarity and Certainty,” “Mainstream is attracted to counties where the ordinance provides certainty for developers who meet its requirements.” The residents also want clarity and certainty!
Boone County ZBA to meet Feb. 26, and local government in action
The Boone County Zoning Board of Appeals (ZBA) public hearing on the Boone County Wind Energy Conversion System (WECS) ordinance will begin at 7 p.m., Tuesday, Feb. 26, at the North Boone Fire District No. 3 Building (off Route 173, just east of Poplar Grove Road).
We encourage Boone County Board members, local and county officials, residents, business owners, bankers and Realtors to attend this very important, informative public hearing!
Concerning the April 2013 election, ask yourself which Boone County candidates are going to support the proper siting of wind turbines, and vote in elected officials who will protect the health, safety and welfare of all Boone County residents
An example of your local government, the LeRoy Township Planning Commission, in action: a (5-0) Compromise vote regarding controversial topic — county setbacks and industrial wind turbines.
1. The LeRoy Township Planning Commission is composed of five members, three who have signed contracts with the wind project, one who has not but is interested in ecology and conservation, and one who is for the responsible siting of wind turbines.
2. And, they unanimously accepted the attached recommended changes to the text amendment. The text amendment recommended by the LeRoy Township Planning Commission is a compromise that looks like a win-win solution.
3. Non-participants get space from the WECS — not just from their residence, but from their entire property — and the recommended distance does not kill the wind project.
4. Participants get the opportunity to downsize the setback, thus allowing smaller farms to participate in the wind project. Adjacent non-participants will be involved because they must agree to the downsize for that site.
5. Moreover, the compromise maintains the right of eminent domain for each property owner. The neighborhood will at least have the opportunity to come to a compromise, one on one.
6. The LeRoy Township Board voted 5-0 to accept the LeRoy Township Planning Commission’s changes to the text amendment. Please see the changes to the proposed text below:
a. Recommendations for the proposed text amendment to the WECS Ordinance:
i. 4.8.7.H. Setback. All WECS towers shall provide the following minimum setbacks:
1. WECS towers shall be setback a distance of 1 1/2 miles from a municipal zoning jurisdiction (including Sharon, Wis., along Sharon’s village/city limits) unless the Applicant has submitted a setback waiver from all municipalities within 1 1/2 mile of the WECS (65 ILCS 5/11-13-26).
2. From non-participating property lines: Three times the WECS tower’s height from any non-participating property line. The distance shall be measured from the point of the property lines closest to the WECS tower to the center of the WECS tower-foundation. (A participant or non-participant can waive their setback to a minimum of 750 feet from their property line(s). A participant or non-participant can waive their setback to a minimum of 750 feet from their primary structure.) The applicant does not need to obtain a variance from the county upon waiver by the property owner of this setback requirement. Any waiver of this setback shall run with the land and be recorded as part of the chain of title in the deed on the subject property.
3. No recommended changes or actions for Nos. 3, 4, 5 and 6.
4. From the easement for a gas pipeline, hazardous liquid pipeline or underground water main: Three times the WECS tower’s height. (The WECS developer will need to obtain a waiver agreement from the owner/operator of the gas pipeline, hazardous liquid pipeline and/or underground water main to obtain a minimum setback distance of 1.1 times WECS tower’s height from respective easement.)
5. There shall be a 1-mile buffer around all restricted landing areas, regional airstrips and airports.
Please remember, the Concerned Citizens of Boone County are concerned with: 1. Responsible siting of industrial wind turbines that protect the health, safety and welfare of Boone County residents; 2. No Boone County taxpayer should pay 1 cent for any wind project; and 3. Since the current county budget is operating in the black, we support responsible development that benefits the future growth of the county and does not burden the taxpayers.
From the Feb. 20-26, 2013, issue