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ARTICLE 5 AFR Agriculture - Forestry - Residential District Section 5.02. SPECIAL LAND USES. Wind Energy Conversion Systems
M.
INTENT AND PURPOSE.
1. a)
Purpose. The most common and prevalent land use in Ellington Township is agricultural and its preservation has been an ongoing goal within the community for many years. This Ordinance is intended to protect the health, safety and welfare of the residents of the Township and to encourage the safe, effective, efficient and orderly development and operation of wind energy resources in the Township while preserving and protecting the character and the stability of residential, agricultural, recreational, commercial and other areas within the Township.
b)
With advances in technology of "wind energy development" in general, specific locations within the Township may support the implementation of Utility Grid Wind Energy Systems. To prepare for potential "wind development projects" within the Township, this Ordinance will require such developments to obtain a Special Land Use Permit to ensure wind development sites are appropriately located so as to protect the character and stability of the Township's residential, agricultural, recreational, commercial and/or industrial areas and character while simultaneously preserving and protecting the Township's important and sensitive environmental and ecological assets and areas, open space, viewscapes and aesthetics, wetlands, and other ecological and environmentally sensitive areas. Accordingly, regulations are necessary to further the above goals and, equally important, to minimize the potential adverse effects of this emerging land use on adjacent properties. FINDINGS.
2. a)
This Ordinance has been developed with the intention of obtaining an appropriate balance between the desire for renewable energy resources and the need to protect the public health, safety, and welfare of the community and the character and stability of the Township's residential, agricultural, recreational, commercial and/or industrial areas and preserving and protecting the Township's important and sensitive environmental and ecological assets and areas, open space, viewscapes and aesthetics, wetlands, and other ecological and environmentally sensitive areas.
b)
Based on evidence presented in this State and others concerning the adverse secondary effects of wind energy systems on communities, including but not limited to findings from the Wind Turbine Health Impact Study: Report of Independent Expert Panel, prepared for the Massachusetts Department of Environmental Protection (2012); Strategic Health
Impact Assessment on Wind Energy Development in Oregon, prepared for the State of Oregon (2012); Potential impact on the Public's Health from Sound Associated with Wind
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Turbine Facilities, prepared for the State of Vermont's Department of Health (2010); Analysis of the Research on the Health Effects from Wind Turbines, Including Effects From Noise, prepared for the Maine Department of Health and Human Services (2012); Jeffrey et al, "Adverse Health Effects of Industrial Wind Turbines," 59 Can Fam Physician 473475 (2013); Salt, A., and Kaltenbach, J, Infrasound From Wind Turbines Could Affect Humans, 31(4) Bulletin Science, Technology and Society, 296-302 (2011), the following are among the potential harmful secondary effects of wind energy systems: 1)
Falling ice or "ice throws" is physically harmful and measures should be taken to protect the public from the risk of "ice throws."
2)
Nighttime wind turbine noise can cause sleep disturbance. Generally, sleep disturbance can adversely affect mood, cognitive functioning and one's overall sense of health and well-being. Chronic stress and sleep disturbance could increase the risk for cardiovascular disease, decreased immune function, endocrine disorders, and mental illness. In addition, possible health effects include increased heart rate, insomnia, fatigue, accidents, reduction in performance and depression.
3)
Sound from wind energy facilities could potentially impact people's health and wellbeing if it increases background sound levels by more than 10 dB(A) or results in long term outdoor community sound levels above 35-40 dB(A).
4)
There is evidence that wind turbine sound is more noticeable, annoying and disturbing than other community industrial sounds at the same level of loudness.
5)
People who live near wind turbines are more likely to be impacted by wind turbine than would those far away.
6)
Alternating changes in light intensity caused by the moving blades of wind turbines on the ground and stationary objects, also known as shadow flicker.
7)
The Township desires to protect ecological and environmentally sensitive areas in the Township, which comprises part of the Saginaw Bay Area, including but not limited to habitats for endangered species or heavily used migration routes for species of waterfowl and other migratory birds (some of which are protected species), including tundra swans and sand hill cranes. Thus, the Township has determined that wind development sites can adversely impact wildlife and their habitats and makes evaluation of proposed wind development sites essential. The Township finds that any wind development sites should have the lowest potential for negative impacts on wildlife resources and avoid locations with higher concentrations of migratory birds. Further, any wind development sites that would fragment sensitive habitat areas, like rivers, streams and wetlands, should be avoided.
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c) The general welfare, health, and safety of the citizens of the Township will be promoted by the enactment of this ordinance. 3.
DEFINITIONS a)
Ambient: Ambient is defined as the sound pressure level exceeded 90% of the time over a 96-hour measurement period
b)
ANSI: American National Standards Institute.
C)
dB(A): The sound pressure level in decibels. Refers to the a weighted scale.
d)
dB(C): The sound pressure level in decibels. Refers to the c weighted scale.
e)
Decibel: A unit of measure used to express the magnitude of sound pressure and sound intensity.
f) g)
Decommission: To remove or retire from active service. Equivalent Sound Level (or Leq): The sound level measured in decibels and averaged on an energy basis over a specific duration.
h)
Height of Structure: The height of the structure is to the highest point on the tip of a fully vertical rotor blade from ground level.
I)
IEC: International Electrotechnical Commission. The IEC is the leading global organization that prepares and publishes international standards for all electrical, electronic and related technologies.
j)
Instantaneous Sound Pressure: Total instantaneous pressure, in a stated frequency band, at a point in the presence of a sound wave, minus the atmospheric pressure at that point measured in unit pascal (Pa)
k)
ISO: International Organization for Standardization. ISO is a network of the national standards institutes of 156 countries.
I)
MET Tower: Anemometer towers used to conduct temporary wind assessment studies for possible installation of Wind Energy Conversion Systems.
M)
Non-Participating Parcel: A parcel of land within Ellington Township that is not subject to a wind turbine lease or easement or other contractual agreement at the time an application is submitted for a Special Land Use Permit for the purposes of developing and constructing a utility grid wind energy system.
n)
On Site Use Wind Energy Systems: An On Site Use wind energy system is intended to primarily serve the needs of the consumer and is not intended for wholesale or retail sale off-site.
o)
Participating Parcel: A parcel of land within Ellington Township that is subject to a wind turbine lease or easement or other contractual agreement at the time an application is submitted for a Special Land Use Permit for the purposes of developing and constructing a utility grid wind energy system.
P)
Pasquill: An atmospheric stability class to categorize the amount of turbulence present.
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q)
Rotor: An element of a wind energy system that acts as a multi- bladed airfoil assembly, thereby extracting through rotation, kinetic energy directly from the wind.
r)
SCADA Tower: A freestanding tower containing instrumentation such as anemometers that is designed to provide present moment wind data for use by the supervisory control and data acquisition (SCADA) system.
s)
SCADA (Supervisory Control and Data Acquisition): A computer system that monitors and controls Wind Energy Conversion System units and data.
t)
Shadow Flicker: Alternating changes in light intensity caused by the moving blade of a wind energy system casting shadows on the ground and stationary objects, such as a dwelling or other structure.
u)
Sound Pressure: Root mean square of the instantaneous sound pressures in a stated frequency band and during a specified time interval, unless another time-averaging process is indicated measured in unit
v)
Sound Pressure Level (SPL): Twenty times the common logarithm of the ratio of the sound pressure to the reference sound pressure of 20 micropascals measured in decibel (dB).Note that, unless expressed with reference to a specific weighing network (such as dB(A)), the unit dB shall refer to an un-weighted measurement.
w)
Utility Grid Wind Energy Systems: A Utility Grid wind energy system is designed and built to provide electricity to the electric utility grid for resale to consumers.
x)
Wind Energy Conversion System (WECS): A wind energy conversion system which converts wind energy into electricity through the use of a wind turbine generator and includes the turbine, blades, and tower as well all related electrical equipment, building or other structures, including wiring to interconnect the wind energy system to the electrical transmission grid.
y)
Wind Site Assessment: An assessment to determine the wind speeds at a specific site and the feasibility of using that site for construction of a wind energy system.
z)
On Site Wind Energy Systems (Net Metering): An On Site Use wind energy system is intended to serve the needs of the consumer on the site where such system is located and not primarily for wholesale or retail sale off site. (See Section 12.12.13) WIND ENERGY SYSTEM SITE ASSESSMENT FOR UTILITY GRID WIND ENERGY SYSTEMS: Prior to
4.
construction of a Utility Grid wind energy system, a wind site assessment is conducted to determine the wind speeds and the feasibility of using the site. Anemometer towers or 'Met Towers," more than 65 feet in height used to conduct a wind site assessment for possible installation of a utility grid wind energy system shall also be a Special Land Use. a)
The distance from the center of a Met tower and the property lines between the leased property and the non-leased property shall be at least the height of the Met tower. Leased property can include more than one piece of property and the requirement shall apply to the combined properties.
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b)
Prior to the installation of the tower, an application for a Special Land Use permit shall be filed with the local government that will include: 1)
applicant identification,
2)
a site plan,
3)
a copy of that portion of the applicant's lease with the land owner granting authority to install the Met tower and requiring the applicant to remove all equipment and restore the site after completion of the wind site assessment, and
4)
proof of the applicants public liability insurance of at least $1 million in coverage.
UTILITY GRID WIND ENERGY SYSTEMS: A Utility Grid wind energy system is designed and built
5.
to provide electricity to the electric utility grid. Utility Grid wind energy systems shall be considered a Special Land Use. Due to the industrial nature of WECS projects, it is important for WECS developers to not only provide modeled (estimated) pre-construction performance data, but to also provide WECS facility actual post-construction performance data. Additionally, the ordinance provides for property owners to have methods for validating WECS performance ordinance compliance. Prior to the installation of a Utility Grid wind energy system, an application for a Special Land Use permit shall be filed with the local government and shall include the following: a)
Applicant Identification: Applicant name and address in full, a statement that the applicant is the owner involved or is acting on the owners behalf, the address of the property involved in the application (substitution may include a legal description or parcel identifications number(s)), and any additional contact information. Each application for a utility grid wind energy system shall also be dated to indicate the date the application is submitted to Ellington Township.
b)
Project Description: A general description of the proposed project including a legal description of the property or properties on which the project would be located and an anticipated construction schedule.
c)
Insurance: Proof of the applicant's public liability insurance shall be provided at the time of application and if the application is approved, proof of insurance shall be provided to the Township annually thereafter. The applicant shall insure for liability forthe WECS until removed for at least $5,000,000 to protect the applicant, Township and property owner.
d)
Noise Level: A sound modeling report for the project. The sound model report shall include a map with sound contour lines for dB(A) Leq 1 second and dB(C) Leq 1 second sound emitted from the proposed wind energy system. The study shall include a map (at 1:8000 scale or bigger) showing sound contours at 5 dB intervals, proposed wind turbine locations, participating and non-participating properties, and all occupied and unoccupied buildings. The applicant shall identify each operational component of a wind turbine that will produce sound that will be audible at the property line of a nonparticipating parcel. The predicted values must include cumulative sound levels created by all existing, approved, and proposed turbines. The sound study and accompanying map shall extend out to the 30 dB sound pressure contour line or 1 mile from a wind turbine generator, whichever is furthest from the nearest wind turbine.
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The modeling and analysis must confirm that the Utility Grid wind energy system will not exceed the maximum permitted sound pressure levels and will not exceed the maximum permitted infrasonic acoustic pressure oscillations. Modeling and analysis shall conform to: 1)
IEC 61400 and ISO 9613,
2)
modeling factors will be set for the worst-case environment, such as high humidity (90%), frozen ground (non-porous), no ground cover (G=0), low temperature (below O'C), and stable wind (Pasquill stability classes E and F),
3)
modeling shall include the WECS Manufacturer's uncertainty factor (minimum 2 dB) and the ISO 9613 uncertainty factor (minimum 3 dB),
4)
modeling can be based on the WECS manufacturer data. However, measured data from existing and similar WECS facilities shall be submitted with the modeling report.
e)
A pre-construction background (ambient) sound study shall be performed and a report provided at the time of the application which indicates Leq 1 second, Lb. and L90sound levels using A-weighting and C-weighting. Data shall be collected at the nearest nonparticipating property line. Measurement procedures to follow the most recent versions of ANSI 512.18 and ANSI S12.9, Part 3 guideline (with an observer present). Measurements shall be taken using an ANSI or IEC Type 1 Precision Integrating Sound Level Meter. The study must include a minimum of a four-day (96 hour) testing period, including one Sunday, and produce data that includes a variety of ground and hub height wind speeds, at low (between 6-9mph) medium (between 9-22mph) and high (greater than 22mph). The sound background study shall report for the period of the monitoring topography, temperature, weather patterns, sources of ambient sound, and prevailing wind direction.
f)
Certifications: Certification that applicant has complied or will comply with all applicable state and federal laws and regulations. Copies of all such permits and approvals that have been obtained or applied for at the time of the application. Note: Land enrolled in Michigan Farmland Preservation Program through Part 361 of the Natural Resources and Environmental Protection Act, 1994 Act 451 as amended, more commonly known as PA 116, must receive approval from the Michigan Department of Agriculture to locate a WECS on the property prior to construction.
g)
Visual Impact: Visual simulations of how the completed project will look from four viewable angles: north, south, east and west.
h)
Shadow Flicker: A shadow flicker analysis and report shall be completed for the project. The analysis shall include potential shadow flicker created by each proposed wind turbine at all non-participating property lines with direct line-of-sight to a wind turbine. Such analysis shall be documented in a shadow flicker modeling report to be submitted as part of the Special Land Use Permit Application to the Planning Commission.
i)
Safety Manual: Applicant shall provide a safety manual for each type and size of turbines proposed in the project as well as safety data sheets that include the type and quantity
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of all materials used in the operation of all equipment including, but not limited to, all lubricants and coolants. j)
Decommissioning: A decommissioning plan shall be provided detailing the useful life of each type and size of turbine located in the project. The decommissioning plans shall include a description of how any surety bonds applied to the decommissioning process. The plan shall include: 1)
the anticipated life of the project,
2)
the estimated decommissioning costs net of salvage value in current dollars,
3)
the method of ensuring that funds will be available for decommissioning and restoration per below,
4)
the anticipated manner in which the project will be decommissioned and the site restored to original condition
5)
detailed policy and process book for the repair, replacement, and removal of malfunctioning, defective, worn, or non-compliant WECS components.
k)
An applicant shall remit an application fee and an escrow deposit, in the amount specified in the fee schedule adopted by the Board of Trustees. All review costs shall be borne by the applicant and deducted from the escrow. An escrow account shall be set up when the applicant applies for a Special Use Permit for a WECS. The monetary amount filed by the applicant with the Township shall be in an amount estimated by the Township Board to cover all costs and expenses associated with the special use zoning review and approval process, which costs can include, but are not limited to, fees of the Township Attorney, Township Planner, and Township Engineer, as well as any reports or studies which the Township anticipates will be required during the review process for the particular application. Such escrow amount shall include regularly established fees. At any point during the zoning review process, the Township may require that the applicant place additional monies into escrow with the Township should the existing escrow amount filed by the applicant be insufficient in the determination of the Township. If additional funds are required by the Township to be placed in escrow and the applicant refuses to do so within fourteen (14) days after receiving notice, the zoning review and approval process shall cease until and unless the applicant makes the required escrow deposit. Any escrow amounts which are in excess of actual costs shall be returned to the applicant. An itemized billing of all expenses shall be provided to the applicant and planning commission upon request.
I)
Fire suppression and emergency response plan.
M)
Site Plan: The site plan shall include maps showing the physical features and land uses of the project area, both before and after construction of the proposed project. The site plan shall include 1) the project area boundaries,
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2)
the location, height, and dimensions of all existing and proposed structures and fencing, and anti-climbing devices,
3)
the location, grades, and dimensions of all temporary and permanent on-site and access roads from the nearest county or state maintained road,
n)
4)
traffic routes and time of year,
5)
existing topography,
6)
water bodies, waterways, wetlands, and drainage channels, and
7)
all new infrastructure above ground related to the project.
Environmental Impact: 1)
The applicant shall have a third party, approved by the Township or their engineer, qualified professional conduct an analysis to identify and assess any potential impacts on the natural environment including, but not limited to wetlands and other fragile ecosystems, historical and cultural sites, and antiquities. The applicant shall take appropriate measures to minimize, eliminate or mitigate adverse impacts identified in the analysis.
2)
The applicant shall identify and evaluate the significance of any net effects or concerns that will remain after mitigation efforts. The applicant shall comply with applicable parts of the Michigan Natural Resources and Environmental Protection Act (Act 451 of 1994, MCL 324.101 et seq.) including but not limited to Part 31 Water Resources Protection (MCL 324.3101 et seq.), Part 91 Soil Erosion and Sedimentation Control (MCL 324.9101 et seq.), Part 301 Inland Lakes and Streams (MCL 324.30101 et seq.). Part 303 Wetlands (MCL 324.30301 et seq.), Part 323 Shoreland Protection and Management (MCL 324.32301 et seq.), Part 325 Great Lakes Submerged Lands (MCL 324.32501 et seq.), and Part 353 Sand Dunes Protection and Management (MCL 324.35301 et seq.). The applicant shall be responsible for making repairs to any public roads, drains and infrastructure damaged by the construction of the Utility Grid wind energy system.
3)
The applicant must provide a statement demonstrating that there is no substantial adverse effect on the natural environment including, but not limited to wetlands and other fragile ecosystems, historical and cultural sites, and antiquities.
o)
Avian and Wildlife Impact: The applicant shall have a third party, approved by the Township or their engineer, qualified professional conduct an analysis to identify and assess any potential impacts on wildlife and endangered species. The applicant shall take appropriate measures to minimize, eliminate or mitigate adverse impacts identified in the analysis. The applicant shall identify and evaluate the significance of any net effects or concerns that will remain after mitigation efforts. 1) Sites requiring special scrutiny include wildlife refuges, other areas where birds are highly concentrated, bat hibernacula, wooded ridge tops that attract wildlife, sites that are frequented by federally and/or state listed endangered species of birds and
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bats, significant bird migration pathways, and areas that have landscape features known to attract large numbers of raptors. 2)
At a minimum, the analysis shall include a thorough review of existing information regarding species and potential habitats in the vicinity of the project area. Where appropriate, surveys for bats, raptors, and general avian use should be conducted. The analysis shall include the potential effects on species listed under the federal Endangered Species Act and Michigan's Endangered Species Protection Law.
3)
The analysis shall indicate whether a post construction wildlife mortality study will be conducted arid, if not, the reasons why such a study does not need to be conducted. Power lines should be placed underground, when feasible, to prevent avian collisions and electrocutions. All above- ground lines, transformers, or conductors should follow any Avian Power Line Interaction Committee (APLIC, http://www.aplic.org/) guidelines to prevent avian mortality.
4)
The applicant must provide a statement demonstrating that there is no substantial adverse effect on wildlife and endangered species
p)
Complaint Resolution: An independent complaint resolution process shall be proposed and approved by the township. The process shall be, but not limited to: 1)
A third party answering switchboard, website or equivalent, paid for by the applicant or owner of the WECS for the life of the WECS facility without interruption, not to exceed $1,000/yr. The WECS owner shall set up and fund an incoming complaint process escrow account for the amount of $5,000 and renew every 5 years.
2)
A complaint investigation escrow account shall be set up for investigation of complaints, but not limited to, shadow flicker, stray voltage, noise, and signal interference. The WECS owner shall maintain the amount of $15,000 in this account to be used at the discretion of the Township Board.
3)
SCADA data from any turbine will be required from the WECS owner upon request within 15days of notification by any township resident with a fee of $200/request. SCADA data will include meteorological and performance data such as, but not limited to, temperature, humidity, power output, wind velocities, and nacelle vector.
4)
Inclusion of a flow chart showing complaint response protocol including (1) a time limit for acting on and resolving complaints (2) how complaints are recorded and dealt with, and (3) a provision specifying that resolution in some instances shall include rendering the unit inoperable.
q)
Certification that the system complies with or will comply with guidelines and regulations for setbacks as required by any and all registered Airports, Airfields or Landing Strips, public or private, within the township and as required for any Public Airport in the State of Michigan as established by MDOT and the FAA and complying to the Michigan Tall Structures Act (Public Act 259 of 1959).
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r)
Additional detail(s) and information as requested by the Planning Commission. PROCEDURE FOR UTILITY GRID WIND ENERGY SYSTEMS SPECIAL LAND USE PERMIT
6.
APPROVAL: The Planning Commission review of a Special Land Use Permit application for a utility grid wind energy system is a two- step process. The first step is the public hearing and recommendation by the Planning Commission followed by a decision made by the Township Board to approve, approve with conditions, or disapprove the application, per the procedures for review in Article 16. The second step, which may occur at a separate meeting for a utility scale wind energy system, is the site plan review process by the Planning Commission as described in Article 15. A decision on the Special Land Use Permit application by the Township Board is inclusive of all proposed wind turbine components, underground electrical lines, substation(s), underground electrical lines, junction boxes, laydown yard(s), concrete batch plant(s), and any operations/maintenance building(s). UTILITY GRID WIND ENERGY SYSTEMS: STANDARDS AND REQUIREMENTS. The Utility Grid
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wind energy system project shall meet the following standards and requirements: a)
Setbacks from Property Lines: 1)
Participating Parcel: A setback for a wind turbine from the property lines of adjacent participating property is not required.
2)
Non-Participating Parcel: The minimum setback from any property line of a nonparticipating property owner shall be equal to five (5)times of the height of any WECS or WECS Testing Facility, measured with the windmill blade at its highest point and to the closest point at the base of the tower.
3)
The minimum setback from any "State" highway, public road right of way, power lines, gas line or County drain, or any other WECS shall be equal to three (3) times the height of any WECS or WECS Testing Facility, measured with the windmill blade at its highest point to the closest point at the base of the tower.
4)
In the event the WECS does not meet the minimum setback requirements, a waiver may be approved by the Township, providing documentation in the form of a signed agreement with the affected property owner(s) that is recorded with the Tuscola County register of deeds.
b)
The maximum height of any WECS shall not exceed SOOft measured with the windmill blade at its highest point from ground level.
c)
WECS systems near the township border must also comply with setback and sound pressure limits of the neighboring township to that border.
d)
Wind turbines and access roads: Wind related facilities shall be located so as to minimize the disruption to agricultural activity and, therefore, the location of towers and access routes is encouraged along internal properly lines.
e)
SCADA (supervisory control and data acquisition) or meteorological (Met) towers shall also comply with the property set-back requirement. The setback shall be at least the height of the SCADA or Met tower. An Operations and Maintenance Office building, a substation, or ancillary equipment shall comply with any property set-back requirement that
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may be applicable to that type of building or equipment. Overhead transmission lines and power poles shall comply with the set-back requirements applicable to public utilities. f)
Noise levels produced by the WECS shall not exceed 40 dB(A) Leq 1 second or 50 dB(C) Leq 1 second anywhere at any time on a non-participating property. In the event the noise levels resulting from the WECS exceed the criteria listed above, a waiver to said levels may be approved by the Township, providing documentation in the form of a signed agreement with the affected property owner(s) that is recorded with the Tuscola County register of deeds.
g)
Measurable infrasonic acoustic sound pressure level from the WECS shall be less than 50dB as totalized in the range of 0.1-20 Hz, using low-pass filtering, or by computing the log-subtraction of the Fast, C-weighted (dB(C) level from the Fast, unweighted SPL, at any location, outdoors or indoors, on non-participating property. Time-level-averaging if used shall be limited to 1-second or faster sampling. A minimum sampling rate of at least 10 times per second is required.
h)
Post Construction Sound Survey. Documentation of sound pressure level measurements shall be provided to the Planning Commission by a third-party qualified professional, INCE Board Member in good standing, selected by the Planning Commission and at the expense of the wind energy system owner within 2 months of project activation, but not more than 6 months from the project commencement. The post construction study shall be performed at the same locations as the pre-construction study. However, additional locations may be required by the Planning Commission. The study should follow the procedures Type 1 Sound Level Testing and ANSI S12.9 Part 3 (with an observer present) and ANSI 512.18. All sound pressure levels shall be measured with instruments that meet ANSI or IEC Type 1 Precision integrating sound level meter performance specifications. One second interval SCADA data is required to be submitted with all measurement reports. Township may request different forms of SCADA data.
i)
The current WECS owner/operator shall provide to the Township a written description of the maintenance program for the WECS, including typical problem/failure and corrective actions, procedures, and schedules. Current WECS owner/operator shall also submit data from existing and similar WECS installations showing aged sound measurements (to demonstrate compliance potential over life of WECS) in accordance with this ordinance for 5, 10, and 15 year-old units.
j)
Construction Codes, Towers, and Interconnection Standards: Utility Grid wind energy systems including towers shall comply with all applicable state construction and electrical codes and local building permit requirements. Utility Grid wind energy systems including towers shall comply with Federal Aviation Administration requirements, the Michigan Airport Zoning Act (Public Act 23 of 1950) the Michigan Tall Structures Act (Public Act 259 of 1959), and local jurisdiction airport overlay zone regulations. Any and all registered Airports, Airfields or Landing Strips, public or private, within the township will require the same guidelines for setbacks as required for any Public Airport in the State of Michigan as established by MDOT and the FAA and complying to the Michigan Tall Structures Act (Public Act 259 of 1959). In the event the WECS does not meet the Michigan Airport
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Zoning Act and Michigan Tall Structures Act, a waiver may be approved by the Township, providing documentation in the form of a signed agreement with the affected property owner(s) that is recorded with the Tuscola County register of deeds. The minimum FAA lighting standards shall be required. All tower lighting required by the FAA shall be shielded to the extent possible to reduce glare and visibility from the ground. The tower shaft shall not be illuminated unless required by the FAA. Utility Grid wind energy systems shall comply with applicable utility, Michigan Public Service Commission, and Federal Energy Regulatory Commission interconnection standards. In addition, the application shall include documentation that the applicant has contacted the Tuscola County Airport Ordinance Administrator to determine what is required by the Tuscola Area Airport in terms of any required Airport Zoning Permits and how any proposed structures related to the utility grid wind energy system may be affected by any imposed height limitations as determined by the Tuscola Area Airport. Radar activated lighting shall be required if allowed by the FAA. k)
Safety: All Utility Grid wind energy systems shall be designed to prevent unauthorized access to electrical and mechanical components and shall have access doors that are kept securely locked at all times when service personnel are not present. All spent lubricants and cooling fluids shall be properly and safely removed immediately from the site of the wind energy system. A sign shall be posted near the tower or Operations and Maintenance Office building that will contain emergency contact information. Signage placed at the road access shall be used to warn visitors about the potential danger of falling ice. The minimum vertical blade tip clearance from grade shall be 95 feet for a wind energy system employing a horizontal axis rotor. The current WECS owner/operator shall, upon request by the township, make available a copy of the manufacturers' safety manual for reviewing during normal business hours within 24 hours of the request. The current WECS owner/operator shall provide a safety manual for distribution to first responders to be kept with the Tuscola County Emergency Manager and the Township Board. This safety manual should include but not be limited to; identifying a run away, what to do during a run away, what to do if it catches fire, what to do if someone is stranded on the turbine, etc. Each WECS shall be equipped with a braking device capable of stopping the WECS operation in high winds and the current WECS owner/operator to provide information and data to support the capability. Braking system shall be effective during complete GRID power failure where WECS is unable to communicate with SCADA control or receive power. Visual Impact: Utility Grid wind energy system projects shall use tubular towers and all Utility Grid wind energy systems in a project shall be finished in a single, non-reflective matte finished color. A project shall be constructed using wind energy systems of similar design, size, operation, and appearance throughout the project. No lettering, company insignia, advertising or graphics shall be on any parts of the tower, hub, or blades. Nacelles may have lettering that exhibits the manufacturer's and/or owner's identification. The applicant shall avoid state or federal scenic areas and significant visual resources listed in the local unit of government's comprehensive plan. There shall be no illumination other than that required of the FAA.
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M)
Shadow Flicker: Under no circumstances shall a WECS or Testing Facility produce shadow flicker on non-participating properties without a signed release from non-participating property owner. Documents in full shall be recorded with the Tuscola County Register of Deeds.
n)
Electromagnetic Interference: No Utility Grid wind energy system shall be installed in any location where its proximity to existing fixed broadcast, retransmission, or reception antennae for global positioning system correction systems (RTK), radio, television, or wireless phone or other personal communication systems would produce electromagnetic interference with signal transmission or reception unless the current WECS owner/operator provides a replacement signal to the affected party that will restore reception to at least the level present before operation of the wind energy system. No Utility Grid wind energy system shall be installed in any location within the line of sight of an existing microwave communications link where operation of the wind energy system is likely to produce electromagnetic interference in the links operation unless the interference is insignificant.
o)
Decommissioning: To ensure proper removal of the structure when it is abandoned or non-operational, any application shall include a proof of the financial security active before the permit is approved. The security shall be in the form of: 1) cash deposit or 2) performance (surety) bond selected by the PC (bonded by a top institution from the Department of the Treasury's Listing of Approved Sureties -Department Circular 570, Tlist). The duration of the security shall be termed to the removal of each WECS as stated in the ordinance. Additionally, security is to be backed with parent company assets, and lease holder assets approved by the PC and township attorney. The amount of such security guarantee (surety) shall be no less than $650,000 per WECS. Security guarantee will be updated every 5 years at the rate of 1.5 times CPI (consumer price index) for each year. Such financial guarantee shall be deposited or filed with the Township Clerk after a special use has been approved but before construction commences on the WECS project. Failure to keep such financial security in full force and effect at all times while the structure exists or to otherwise fail to comply with the requirements of this Ordinance shall constitute a material and significant violation of a special use approval and will subject the current WECS owner/operator to all available remedies to the Township, including enforcement action, fines, and revocation of the special use approval. The current WECS owner/operator shall be responsible for the payment of all attorney fees and other costs incurred by the Township in the event that the structure is not voluntarily removed and the Township has to enforce removal. In the event the current WECS owner/operator defaults on any or all of the previously outlined requirements, the property owner upon which any WECS are located shall be responsible and liable for the removal of WECS. Failure of the property owner's compliance to the removal/decommissioning guidelines would result in the Township having the unit(s) removed at the expense of the property owner. If funding is not available to cover the costs of removal by the property owner, legal action to pursue the seizure of property(s) will take place to cover such costs.
Ellington Township Wind Ordinance - April 10t/ 2018 - Board Approved Draft
Page 14
The property owner may waive the complete caisson removal and remove caisson to a depth of eight (8) feet if the property owner executes a waiver and records same in full with Tuscola Country Register of Deeds. Should any WECS be left unused or inoperable for more than six (6) months the owner shall be required to provide a status report to the Township. Should any WECS be left unused or inoperable for more than twelve (12) months it shall be deemed to be inactive. The owner has eight (8) months to remove the inactive WECS. p)
Change in Ownership: The special land use permit is transferrable. The proposed new WECS owner/operator shall be required to register with the Township Clerk prior to the transfer of ownership or operation of the WECS. The original security guarantee bond shall remain held by the Township notwithstanding any change of ownership. The new WECS owner/operator shall conform to all requirements of this Ordinance and any special land use permit issued pursuant to this Section.
q)
Conflicting Provisions: In the event of a conflict between any provision in this section and any other section of this Zoning Ordinance with regard to Utility-Scale Wind Energy Systems, the provisions of this section shall control.
r)
Liability Insurance: The current WECS owner/operator shall insure for liability for the WECS without interruption until removed for at least $5,000,000 to protect the current WECS owner/operator, Township and property owner. UTILITY GRID WIND ENERGY SYSTEMS: NOISE MEASUREMENT and COMPLIANCE.
8. a)
Noise Compliance: Compliance noise measurements are the financial responsibility of the owner of the facility and shall be independently performed by a qualified professional as directed by the Township Board or their designated agent. Compliance noise measurements shall not exceed the stipulated noise limits and shall assess for and apply tonal 5 dB noise penalty per ANSI S12.9-2005/Part 4 Table 2.
b)
Noise Measurement: The measurements shall have an observer present. All noise measurement shall exclude contributions from wind on microphone, tree/leaf rustle, flowing water, and natural sounds such as tree frogs and insects. The wind velocity at the sound measurement microphone shall be between 2m/s (4.5 mph) and 4.5m/s (9 mph) during measurements. During testing of elevated sources including but not limited to WECS systems, the atmospheric profile shall be relatively calm, Pasquill Stability Class D or calmer during the day and Class E or calmer during the Night.
c)
Noise Level: Noise measurements shall be conducted consistent with ANSI S12.18 Procedures for Outdoor Measurement of Sound Pressure Level ANSI S12.9 Part 3 (Quantities and Procedures for Description and Measurement of Environmental Sound Part 3: Short-term Measurements with an Observer Present), using Type 1 meter, Aweighting, Fast Response.
d)
Tonal Noise: Tonal noise shall be assessed using unweighted (linear) 1/3 octave band noise measurements with time-series, level-versus-time data acquisition. A measurement shall constitute prima facie evidence of a tonal noise condition if at any time (single sample or time interval) the noise spectrum of the noise source under investigation shows
Ellington Township Wind Ordinance -April 10t? 2018 - Board Approved Draft
Page 15
a 1/3 octave band exceeding the average of the two adjacent bands by 15 dB in low onethird octave bands (10-125 Hz), 8 dB in middle-frequency bands (160-400 Hz), or 5 dB in high-frequency bands (500-10,000 Hz). e)
Sample Metric and Rate: Noise level measurements for essentially continuous non-timevarying noise sources shall be acquired using the Leq(Fast) metric at a sample rate of 1per-second. For fluctuating or modulating noise sources including but not limited to wind turbines, a 10-per-second sample rate shall be used. These sample rates shall apply to dB(A), dB(C) and unweighted 1/3 octave band measurements.
f)
Reporting: Measurements of time-varying dB(A) and dB(C) noise levels and 1/3 octave band levels shall be reported with time-series level-versus-time graphs and tables. Graphs shall show the sound levels graphed as level-versus-time over a period of time sufficient to characterize the noise signature of the noise source being measured. For 1-per-second sampling, a 5-minute-or-longer graph shall be produced. For 10-per-second sampling, a 30-second-or-longer graph shall be produced. Reporting shall identify and graphs shall be clearly notated identifying what was heard and when the noise source is dominating the measurement. Reporting shall furnish all noise data and information on weather conditions and, Pasquill Class if an elevated source is measured. All measured data shall be accompanied by SCADA data confirming full power operation during testing of the WECS systems. COMPLIANCE.
9. a)
In addition to any other remedies or complaint resolution procedures set forth in this Article, violations of this Article shall also constitute a municipal civil infraction in accordance with Article 20 of this Ordinance. Each day on which any violation of this Article continues shall constitute a separate offense and shall be subject to penalties or sanctions as a separate offense under Article 20.
b)
In addition to any other remedies set forth in this Article, the Township may bring an action for an injunction or other action to restrain, prevent or abate any violation of this Article.
Ellington Township Wind Ordinance - April lOu' 2018 - Board Approved Draft
CHARTER TOWNSHIP OF ALMER ORDINANCE TO AMEND ZONING ORDINANCE TO PROVIDE FOR PUBLIC UTILITY FACILITIES AND WIND ENERGY CONVERSION SYSTEMS ORD. NO. THE CHARTER TOWNSHIP OF ALMER ORDAINS: Section 1. Purpose. The Charter Township of Almer (the "Township") adopts the following revisions to the Township's Zoning Ordinance for the health, safety, and welfare of Township residents. Section 2. Amendment of Section 1522. Section 1522 of the Zoning Ordinance is hereby amended to read as follows: Section 1522. PUBLIC UTILITY FACILITIES AND WIND ENERGY CONVERSION SYSTEMS (WECS) A. INTENT AND PURPOSE. 1. Purpose. The most common and prevalent land use in Almer Charter Township is agricultural, and its preservation has been an ongoing goal within the community for many years. This Ordinance is intended to protect the health, safety and welfare of the residents of the Township and to encourage the safe, effective, efficient and orderly development and operation of wind energy resources in the Township while preserving and protecting the character and the stability of residential, agricultural, recreational, commercial and other areas within the Township. 2. With advances in technology of "wind energy development" in general, specific locations within the Township may support the implementation of Utility Grid Wind Energy Systems. To prepare for potential "wind development projects" within the Township, this Ordinance will require such developments to obtain a Special Land Use Permit to ensure wind development sites are appropriately located so as to protect the character and stability of the Township's residential, agricultural, recreational, commercial and/or industrial areas and character while simultaneously preserving and protecting the Township's important and sensitive environmental and ecological assets and areas, open space, viewscapes and aesthetics, wetlands, and other ecological and environmentally sensitive areas. Accordingly, regulations are necessary to further the above goals and, equally important, to minimize the potential adverse effects of this emerging land use on adjacent properties. B. FINDINGS. 1. This Ordinance has been developed with the intention of obtaining an appropriate balance between the desire for renewable energy resources and the need to protect the public health, safety, and welfare of the community and the character and stability of the Township's Almer Charter Township + Amendment of Section 1522 + Page 1 of 17 201 8March
residential, agricultural, recreational, commercial and/or industrial areas and preserving and protecting the Township's important and sensitive environmental and ecological assets and areas, open space, viewscapes and aesthetics, wetlands, and other ecological and environmentally sensitive areas. 2. Based on evidence presented in this State and others concerning the adverse secondary effects of wind energy systems on communities, including, but not limited to, findings from the Wind Turbine Health Impact Study: Report of Independent Expert Panel, prepared for the Massachusetts Department of Environmental Protection (2012); Strategic Health Impact Assessment on Wind Energy Development in Oregon, prepared for the State of Oregon (2012); Potential impact on the Public's Health from Sound Associated with Wind Turbine Facilities, prepared for the State of Vermont's Department of Health (2010); Analysis of the Research on the Health Effects from Wind Turbines, Including Effects From Noise, prepared for the Maine Department of Health and Human Services (2012); Jeffrey et al, "Adverse Health Effects of Industrial Wind Turbines," 59 Can Fam Physician 473-475 (2013); Salt, A., and Kaltenbach, J, Infrasound From Wind Turbines Could Affect Humans, 31(4) Bulletin Science, Technology and Society, 296-302 (2011), the following are among the potential harmful secondary effects of wind energy systems: (a) Falling ice or "ice throws" is physically harmful and measures should be taken to protect the public from the risk of "ice throws." (b) Nighttime wind turbine noise can cause sleep disturbance. Generally, sleep disturbance can adversely affect mood, cognitive functioning and one's overall sense of health and well-being. Chronic stress and sleep disturbance could increase the risk for cardiovascular disease, decreased immune function, endocrine disorders, and mental illness. In addition, possible health effects include increased heart rate, insomnia, fatigue, accidents, reduction in performance and depression. (c) Sound from wind energy facilities could potentially impact people's health and wellbeing if it increases background sound levels by more than 10 dB(A) or results in long term outdoor community sound levels above 35-40 dB(A). (d) There is evidence that wind turbine sound is more noticeable, annoying and disturbing than other community industrial sounds at the same level of loudness. (e) People who live near wind turbines are more likely to be impacted by wind turbine than would those far away. (f) Alternating changes in light intensity caused by the moving blades of wind turbines on the ground and stationary objects, also known as shadow flicker, can cause health issues. (g) The Township desires to protect ecological and environmentally sensitive areas in the Township, which comprises part of the Saginaw Bay Area, including, but not limited to, habitats for endangered species or heavily used migration routes for species of waterfowl and other migratory birds (some of which are protected species), including tundra swans and sand hill cranes. Thus, the Township has determined that wind development sites can adversely impact wildlife and their habitats and makes evaluation of proposed wind development sites essential. The Township finds that any wind development sites should
Almer Charter Township + Amendment of Section 1522 + Page 2 of 17 201 8March
have the lowest potential for negative impacts on wildlife resources and avoid locations with higher concentrations of migratory birds. Further, any wind development sites that would fragment sensitive habitat areas, like rivers, streams, and wetlands, should be avoided. (h) The general welfare, health, and safety of the citizens of the Township will be promoted by the enactment of this ordinance. C. Public Utilities. Transmission lines, sewer lines, water mains, pumping stations, substations, poles, and related equipment owned or provided by public utility companies or by the Township shall be permitted in all zoning districts. Any equipment enclosures, substations, equipment storage buildings or similar structures shall be subject to the site plan review requirements of Article 21. Any office, manufacturing, or sales buildings must be located in the Commercial or Industrial zoning district. All communication towers or commercial wind energy conversion systems operated by public utility companies shall be subject to the requirements of section "Commercial Wind Energy Conversion Systems (WECS)". Unless specifically noted, all WECS permit information and supporting documentation shall be allocated reasonable Township review time based on complexity and outside expertise review. Requirements shall be presented in written form and allow minimum thirty (30) days before Township discussion. Township may at its discretion review provided documents sooner than thirty (30) days. Providing documents without time for Planning Commission to review shall result in permit denial and require WECS application to reapply. Each ordinance section requires approval by the Planning Commission unless otherwise noted. Township shall review all documentation to assure that residents' health, welfare, and safety are not negatively impinged. Communication D. Exempt Towers and Wind Energy Conversion Systems (WECS). towers, antennas, wind energy conversion systems (windmills, turbines) and related facilities located on the premises of a farm, home, or business and which do not primarily involve the sale of electricity or communication services off the premises shall be exempt from the requirements of section "Commercial Wind Energy Conversion Systems (WECS)" except for the requirement to comply with "Noise" sections 23 (a) and 23 (b) . Such units shall be allowed as a permitted accessory use in all zoning districts, providing the electricity or communication services are primarily used on site for a farm, home or business. In the case of a WECS, the total height with the blade fully extended (Tip Height) shall not exceed one hundred thirty (130) feet, and the minimum clearance from ground level to the blade at its lowest point shall be twenty (20) feet. The minimum set-back from property lines and road right of way lines shall be equal to 3 times the Tip Height of the unit (WECS blade at its highest point). Wind energy conversion F. Commercial Wind Energy Conversion Systems (WECS). systems and WECS testing facilities, other than those exempted under section D "Exempt Towers and Wind Energy Conversion Systems (WECS)", shall only be allowed as special land uses in the AG Agricultural, B- 1 and B-2 Business, I industrial, and F Forestry Zoning Districts. An application for a special land use permit shall be filed with the Township pursuant to Article 24 as to Special Land Use approvals. Supporting data and documentation must be submitted in their entirety at time of application. Applicant shall provide to the Township updated documents throughout the lifespan of the WECS upon request by the Township Board or Planning Commission. Applicant shall also include the following: Almer Charter Township 4 Amendment of Section 1522 4 Page 3 of 17 201 8March
1. Permitting Costs: An escrow account shall be set up when the Applicant applies for a Special Use Permit for a WECS and WECS Testing Facilities. The monetary amount filed by the Applicant with the Township shall be in an amount estimated by the Township Board to cover all reasonable costs and expenses associated with the special use zoning review and approval process, which costs can include, but are not limited to, fees of the Township Attorney, Township Planner, and Township Engineer, as well as any reports or studies which the Township anticipates it may have done related to the zoning review process for the particular application. Such escrow amount shall include regularly established fees. At any point during the zoning review process, the Township may require that the Applicant place additional monies into the Township escrow should the existing escrow amount filed by the Applicant prove insufficient. If the escrow account needs replenishing and the Applicant refuses to do so within fourteen (14) days after receiving notice, the zoning review and approval process shall cease until and unless the Applicant makes the required escrow deposit. Any escrow amounts which are in excess of actual costs shall be returned to the Applicant within ninety (90) days of permitting process completion. An itemized billing of all expenses shall be provided to the Applicant. The Township shall hire qualified professionals for each and any of the technical fields associated with the Special Use Permit, such as, but not limited to, electrical, acoustics, environment, economics, wildlife, health, and land-use. 2. Environmental Assessment: The Applicant shall fund an environmental assessment or impact study and other relevant report(s) or studies (including, but not limited to, assessing the potential impact on endangered species, eagles, birds, and/or other wildlife) as required by the Township for review. Studies shall be limited to the area within three (3) miles outside of the Township boundaries. (a) A background (ambient) sound study shall be performed and a report provided which indicates Leq I second, LI 0, and L90 sound levels using A-weighting and C-weighting. Data shall be collected at midpoints along property lines of adjoining Non-Participating and Landowners Participating. Measurement procedures are to follow the most recent versions of ANSI S12.l8 and ANSI S12.9, Part 3 guideline (with an observer present). Measurements shall be taken using an ANSI or LEC Type I Precision Integrating Sound Level Meter. The study must include a minimum of a four-day (96 hour) testing period, include one Sunday, and divide data by daytime and nighttime. The sound background study shall report for the period of the monitoring topography, temperature, weather patterns, sources of ambient sound, and prevailing wind direction. 3. Economic Impact: The Applicant shall fund and provide an economic impact study for the area affected by the WECS project. Such a study shall include probable financial impact regarding jobs, tax revenue, lease payments and property values at a minimum and average set-backs distances. Business and residential growth potential shall be considered. 4. Site Plan: The Applicant shall submit a site plan in full compliance with Article 21 of this Ordinance. The Applicant shall also submit a written explanation of the design characteristics and the ability of the structure(s) and attendant facilities to withstand winds, ice and other naturally occurring hazards, as well as information regarding health, welfare and safety in areas including, but not limited to, noise, vibration, shadow flicker, and blade ice deposits. This information shall also address the potential for the WECS to structurally fail or collapse, and what results should be expected in such an event. Additional Alrner Charter Township 4 Amendment
of Section 1522
+ Page 4 of 17 201 8March
requirements for a WECS site plan are as follows: (a) Building Siting: GIS locations and height of all proposed buildings, structures, electrical lines, towers, guy wires, guy wire anchors, security fencing, and other above-ground structures associated with the WECS. (b) Nearby Building Siting: GIS locations and height of all adjacent buildings, structures, and above ground utilities located within three (3) times minimum set-back distance for Non-Participating Landowners where the proposed WECS and WECS Testing Facility will be located. The location of all existing and proposed overhead and underground electrical transmission or distribution lines shall be shown, whether to be utilized or not with the WECS or Testing Facility, located on the lot or parcel involved. (c) Access Driveways: GIS location of WECS and Testing Facility access driveways together with details regarding dimensions, composition, and maintenance of the proposed driveways. The site plan shall include traffic routes, time of the year use, staging areas, and any other physical sites related to WECS. Construction of the Access Driveway that serves a WECS or Testing Facility is required to protect the public health, safety, and welfare by offering an adequate means by which governmental agencies may readily access the site in the event of an emergency. All such roads shall be constructed to allow access at all times by any emergency service vehicles, such as fire, police, and repair. Access driveways shall be no closer than 300' to adjacent property unless Applicant provides documentation in the form of a signed approval by affected Participating and Non-Participating Landowners. Such approval shall be recorded with Tuscola County Register of Deeds using only the WECS Waiver Form Revision 1 or later. (d) Facility Security: Security measures shall be sufficient to prevent unauthorized trespass and to protect health, welfare, and safety. (e) Maintenance Program and Resolution Program: The Applicant shall provide to the Township a written description of the problem and failure program to be used to resolve the WECS and WECS Testing Facility issue, including procedures and schedules for removal when determined to be obsolete or abandoned. (1) Site Lighting: A lighting plan for each WECS and Testing Facility. Such plan must describe all lighting that will be utilized and documentation that FAA requirements are met. RADAR activated lighting shall be utilized if allowed by FAA. Such a plan shall include but is not limited to, the planned number and location of lights, light color, activation methods, effect on township residents and whether any lights blink. Due to complexity in describing lighting effects for health, welfare, and safety, Applicant shall, if available, provide example locations with product descriptions, where similar, or proposed, lighting solutions are currently deployed. Lighting shall be fully shielded from ground, be FAA compliant, and be of most current design, to minimize lighting blinking and brightness nuisance. (g) Proof of documents recorded at the Tuscola Country Register of Deeds utilizing Article 1522 WECS Waiver Form Revision 1 (or later).
Almer Charter Township + Amendment of Section 1522 + Page 5 of 17 201 8March
(h) Supplemental: Additional detail(s) and information as requested by the Planning Commission. 5.
Site Insurance: The Applicant shall provide proof of insurance for each WECS at all times for at least $2,000,000 for liability, property damage, livestock damage, and future earnings loss. Applicant shall provide yearly proof of insurance to Township that confirms active coverage for the Applicant, Township, Participating Landowners, and Non-Participating Landowners. Aggregate policies are allowed if minimum coverage per WECS is satisfied and coverage is provided for every site where Applicant's equipment is located. Removal Insurance (decommissioning): To ensure proper removal of each WECS structure when it is abandoned or non-operational, application shall include a proof of the financial security in effect before permit is approved. The security shall be licensed in the State of Michigan and be in the form of 1) cash deposit or 2) performance (surety) bond selected by the Planning Commission and bonded by a top institution from the Department of the Treasury's Listing of Approved Sureties -Department Circular 570, T-list. The duration of the security shall be termed to the removal of each WECS as stated in the ordinance. Additionally, security is based on each WECS and is to be backed by owner assets, operator assets, parent company assets, and leaseholder assets approved by the Planning Commission. (a) The amount of each WECS security guarantee (surety) shall be the average of at least two independent (of Applicant) demolition (removal) quotes, obtained by the Planning Commission and approved by the Board, plus 10%. If the quantity of quotes obtained is two, the formula shall be (quote! + quote2)/2 * 1.10. The security guarantee shall be no less than $800,000 per WECS. Quotes shall be based on individual WECS removal and shall not group multiple WECS simultaneous removals together. Quotes shall be ordered and obtained by the Township from established demolitions companies. Quotes shall not include salvage values. Security guarantee shall be updated every five (5) years at the rate of 1.5 times CPI (consumer price index) for each year. (b) Such financial guarantee shall be deposited or filed with the Township Clerk after a special use has been approved but before construction operations begin on the WECS project. Failure to keep such financial security in full force and effect at all times while the structure exists shall constitute a material and significant violation of a special use approval and this ordinance, and shall subject the Applicant to all available remedies to the Township, including enforcement action, fines, revocation of the special use approval and WECS removal. (c) The Applicant shall be responsible for the payment of all attorney fees and other costs incurred by the Township in the event that the structure is not voluntarily removed and the Township has to enforce removal. (d)
In the event the WECS owner, operator, parent company, performance bond defaults on any or all of the previously outlined decommissioning requirements, the Participating Landowner upon which each WECS is located shall be responsible and liable for the removal of each WECS. Failure of the Participating Landowner to comply with the removal and decommissioning guidelines shall result in the Township having the WECS removed at the expense of the Participating Landowner. If funding is not available to cover the costs of removal by the Participating Landowner, legal action to pursue the Almer Charter Township 4 Amendment of Section 1522 + Page 6 of 17 201 8March
seizure of Participating Landowner property(ies) will take place to cover such costs. Safety Manual: The Applicant shall provide an unredacted copy of the manufacturer's safety manual for each model of turbine without distribution restraints to be kept at the Township Hall and other locations deemed necessary by Planning Commission or local first responders. The Manual should include standard details for an industrial site such as materials, chemicals, fire, access, safe distances during WECS failure, processes in emergencies, etc. 8. Repair Policy Documentation: Applicant shall provide a detailed policy and process book for the repair, replacement, and removal of malfunctioning, defective, worn, or noncompliant WECS. Sections of the process book should consider any ordinance requirement or WECS performance deficiency. 9. Noise: Applicant shall provide an initial sound modeling report and post-construction report for the project with a schedule and documentation which adhere to the following: (a) Chart outlining ordinance requirements and a description of compliance or noncompliance. (b) Declaration whether submitted data is modeled or measured. (c) Declaration of values, test methods, data sources, and similar for all modeled or measured data. (d) Estimated timeline for project including ordinance requirements completed, construction, post construction, and validation testing. (e) Applicant measured data shall be accompanied by SCADA data confirming full power during testing. Unless otherwise requested, minimum SCADA data format shall be grouped in 24hr periods and I second intervals including wind vector, wind speed, temperature, humidity, time-of-day, WECS power output, WECS amps, WECS volts, WECS nacelle vector, WECS blade RPM, WECS blade pitch. (f) Permitting data may be submitted based on WECS manufacturer data. However, measured data from active and similar WECS facilities shall be simultaneously submitted. (g) It is acknowledged that WECS units sustain wear over time. Applicant is to submit data from existing and similar WECS installations showing aged sound measurements (to demonstrate compliance potential over the life of WECS) in accordance with this ordinance for 5, 10, and 15-year-old units. (h) Modeling factors shall be set for the worst-case environment, such as high humidity, frozen ground (non-porous), atmospheric variances (atmospheric profile Pasquill Stability Class E or F preferred), elevated noise source and no ground cover. Use of modeling methods (standards) shall have deficiencies (limitations) fully disclosed and shall include known error margins. Non-disclosure of modeling method deficiencies shall require resubmission of SLUP in its entirety with complete modeling deficiencies disclosed. Almer Charter Township + Amendment
of Section 1522
+ Page
7 of 17 201 8March
F. Commercial Wind Energy Conversion Systems (WECS) - Standards and Requirements. The WECS project shall meet the following standards and requirements: 1. Set-Back: The minimum set-back from any property line of a Non-Participating Landowner or any road right-of-way shall be no less than four (4) times Tip Height of WECS or WECS Testing Facility unless Applicant provides documentation in the form of a signed approval by affected Participating and Non-Participating Landowners waiving these requirements. Documents in full shall be recorded using only the WECS Waiver Form Revision 1 or later, with the Tuscola County Register of Deeds. For WECS, use turbine pole centerline as WECS measuring point. 2. Ground Clearance: The minimum clearance from ground level to the blade at its lowest point shall be one hundred (100) feet. 3. Applicant Compliance: The WECS and related equipment shall comply with any and all State, Federal, County and Township requirements. 4. Blade Clearance: Blade arcs created by a WECS shall have a minimum of one hundred (100) feet of clearance over and from any structure. Braking: Each WECS shall be equipped with a braking, or equivalent device, capable of stopping the WECS operation in high winds with or without SCADA control. Braking system shall be effective during complete GRID power failure where WECS are unable to communicate with SCADA control or receive power. 6. Signage: Each WECS and Testing Facility shall have one sign per turbine, or tower, located at the roadside and one sign attached to base of each WECS, easily visible throughout four seasons. Signs shall be at least two square feet in area. Signs shall be the same and shall uniquely identify each WECS. Signage shall comply with Article 19. Additional signage on and around the tower is recommended. The sign shall contain at least the following: (a) Warning high voltage. (b) Participating Land owner's name, WECS owner's name, and operator's name. (c) Emergency telephone numbers and web address. (list more than one number). (d) If WECS uses fencing, place signs on the perimeter fence at fence entrance door. (e) Unique identification such as address of WECS. If more than one WECS on access drive, units shall have further identification such that first responders can positively identify. An identification example is "321 Ruger Rd, Caro, MI Unit A" 7. Communication Interference: Each WECS and Testing Facilities shall be designed, constructed and operated so as not to cause radio and television or other communication interference. In the event that verified interference is experienced and confirmed by a licensed engineer, the Applicant must produce confirmation that said interference had been resolved to residents' satisfaction within ninety (90) days of receipt of the complaint. Any such complaints shall follow the process stated in Complaint Resolution sections E. 18 and E. 19. Almer Charter Township + Amendment of Section 1522
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Page 8 of 17 20I8March
8. Infrastructure Wiring: All electrical connection systems and lines from the WECS to the electrical grid connection shall be located and maintained underground. Burial depth shall be at a depth that causes no known environmental, land use, or safety issues. Depth shall be a minimum of 6ft below grade, be deeper than drain tile and be in compliance with NEC 2014 or newer Code standards. The Planning Commission may waive the burial requirement and allow above-ground structures in limited circumstances, such as geography precludes, or a demonstrated benefit to the township. The waiver shall not be granted solely on cost savings to Applicant. Request for variation shall consider aesthetics, future use of land, and effect on nearby landowners. 9. Road Damage: Any damage to a public road located within the Township resulting from the construction, maintenance, or operation of a WECS or Testing Facility shall be repaired at the Applicant's expense pursuant to Tuscola County Road Commission requirements within ninety (90) days of project completion, or maintnance completion, but shall not exceed 365 days from project commencement or maintenance cmpletion. 10. Liability Insurance: The current WECS owner and operator shall insure for liability for the WECS without interruption until removed and comply with section "Site Insurance" to protect the current WECS owner and operator, Township and property owner. 11. Coating and Color: A WECS shall be painted a non-obtrusive (light environmental color such as beige, gray or off-white) color that is non-reflective. The wind turbine base and blades shall be of a color consistent with all other turbines in the area. No striping of color or advertisement shall be visible on the blades or tower. 12. Strobe Effect: Under no circumstances, shall a WECS or Testing Facility produce shadow flicker, or strobe-effect, on properties without a signed release from affected Participating and Non-Participating Landowners. Such releases shall be recorded with the Tuscola County Register of Deeds waiving these requirements. Documents in full shall be recorded using only the WECS Waiver Form Revision 1 or later, with the Tuscola County Register of Deeds. 13. Voltage: The Applicant shall be responsible for compensation to residents for property, including livestock, health or other damage by stray voltage caused by a WECS. The Applicant shall demonstrate WECS prohibits stray voltage, surge voltage, and power from entering ground. 14. Protection of Adjoining Property: In addition to the other requirements and standards contained in this section, the Planning Commission shall not approve any WECS or Testing Facility unless it finds that the WECS or Testing Facility will not pose a safety hazard or unreasonable risk of harm to the occupants of any adjoining properties or area wildlife. 15. Removal and Site Renovation: A condition of every approval shall be adequate provision for the removal of the structure in its entirety whenever it ceases to actively produce power for one hundred eighty (180) days or more. The Planning Commission can grant an extension of an additional one hundred eighty (180) days upon the WECS owner demonstrating that the structure will be put back into use. Removal shall include the proper receipt of a demolition permit from the Building Official and proper restoration of the site to original condition. Removal of the structure, wiring, and its accessory use facilities shall include Almer Charter Township + Amendment of Section 1522 + Page 9 of 17 201 8March
removing the caisson and all other components in their entirety. Restoration must be completed within 365 days of non-operation. (a) Participating Landowners may waive complete underground wiring removal if they can demonstrate that any and all remaining underground wiring will not negatively affect environment, such as , but not limited to, water quality, natural water flow, or area wildlife. Participating Landowner shall execute a waiver and record same in full with Tuscola County Register of Deeds waiving these requirements. 16.
Aesthetic and Scenic Vista: The maximum Tip Height of any WECS or WECS Testing Facility shall not exceed 500 ft.
17. Operational, Maintenance, and issue Resolution: Each WECS and Testing Facility must be kept and maintained in good repair and condition at all times. If a WECS is not maintained in operational and reasonable condition or poses a potential safety hazard, the Applicant shall take expeditious action to correct the situation, including WECS removal. The Applicant shall keep a maintenance log on each WECS and must provide complete log to the Township within thirty (30) days of request. 18. Complaint Resolution: A complaint resolution process shall be established by the township. The form shall be, but not limited to: (a) Receiving and Forwarding of Complaints: A third party answering switchboard, website or equivalent, paid for by the Applicant or WECS or Testing Facility owner. The cost to maintain and support shall be funded in the amount of $10,000.00 and be replenished at least every five (5) years by the Applicant or WECS owner. The Planning Commission shall select a complaint resolution process that is independent of the facility operator or owner and that reports to the Township first and operator second. (b) Investigation of Complaints: Township shall initiate an investigation into a complaint within sixty (60) days utilizing escrow funds to hire the appropriate expert(s). (c) Hearing of Complaints: Township Board shall set a hearing date within sixty (60) days of completion of Investigation of Complaints where experts, residents and/or Applicant may present information before the Township Board. Notice of hearing shall be via certified mail. (d) Decision of Complaints: Township Board shall issue a decision and corrective actions within forty-five (45) days from Hearing of Complaints. 19. Applicant shall be required as a condition of approval to fund an escrow account for investigation of complaints for, but not limited to, shadow flicker, stray voltage, noise, and signal interference to the amount of $15,000.00 to be used at the discretion of the Almer Township Board. When escrow account balance is below $5,000.00, Township shall notify Applicant and Applicant shall replenish account in the amount of$ 15,000.00 within 45 days. 20. Regulation of WECS Commercial and Industrial Noise: To preserve quality of life, peace, and tranquility, and protect the natural quiet of the environment. This ordinance establishes the acoustic baseline, background sound levels for project design purposes, and limits the
Almer Charter Township + Amendment of Section 1522 + Page 10 of 17 201 8March
maximum noise level emissions for commercial and industrial developments. Residents shall be protected from exposure to noise emitted from commercial and industrial development by regulating said noise. 21. The Township Board reserves the right to require WECS Applicant to shutdown any WECS unit that does not meet ordinance requirements until such WECS unit meets ordinance requirements or is removed. 22. Complaints: If the Township Board confirms and issues a corrective action, SCADA data from WECS within 2 miles of issue shall be required and delivered to Township within twenty (20) days of notification. SCADA data format shall be determined by Township, Township licensed engineers, or Township professional acousticians. Unless otherwise requested, minimum SCADA data format shall be grouped in 24hr periods and l second intervals including wind vector, wind speed, temperature, humidity, time-of-day, WECS power output, WECS amps, WECS volts, WECS nacelle vector, WECS blade RPM, WECS blade pitch. Fees for providing SCADA data are not to exceed S 100/request. Residents shall have the right to also request SCADA data in at least the minimum format at the cost of S200/WECS per time period requested. Common SCADA formats shall include meteorological and performance data such as, but not limited to, temperature, humidity, power output, RPM, wind velocity, wind direction, and nacelle vector. Data format shall be determined by Township, such as "csv" or "xlsx". 23. Noise: (a) No WECS shall generate or permit to be generated audible noise from commercial or industrial permitted facilities that exceeds 39 dBA or 49 dBC (dBC to dBA ratio of 10 dB per ANSI standard S 12.9 Part 4 Annex D) during the night 10 pm to 7 am for any duration, at a property line or any point within a Non-Participating property, unless Applicant provides documentation in the form of a signed agreement by the Participating and Non-Participating Landowner waiving these requirements. Said documents in full shall be recorded with the Tuscola County Register of Deeds waiving these requirements. Documents in full shall be recorded using only the WECS Waiver Form Revision 1, or later, with the Tuscola County Register of Deeds. (b) No WECS shall generate or permit to be generated plainly audible noise from commercial or industrial permitted facilities that exceeds 45 dBA or 55 dBC during the day 7 am to 10 pm for any duration, at a property line or at any point within a NonParticipating property, unless Applicant provides documentation in the form of a signed agreement by the Participating and Non-Participating Landowner waiving these requirements. Said documents in full shall be recorded with the Tuscola County Register of Deeds waiving these requirements. Documents in full shall be recorded using only the WECS Waiver Form Revision 1, or later, with the Tuscola County Register of Deeds. (c) No WECS shall generate or permit to be generated from commercial or industrial permitted facilities any acoustic, vibratory, or barometric oscillations in the frequency range of 0.1 to 1 Hz that is detectable at any time and for any duration by confirmed human sensation or exceeds a sound pressure level from 0.1 to 20 Hz of 50 dB(unweighted) re 20uPA or exceeds an RMS acceleration level of 50 dB(unweighted) re 1 micro-g by instrumentation at a Non-Participating Landowner's property line or at Almer Charter Township
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Amendment
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any point within a Non-Participating Landowner's property. (d) No WECS shall generate or permit to be generated from commercial or industrial permitted facilities any vibration in the low-frequency range of 0.1 to 20 Hz, including the 1, 2, 4, 8, and 16 Hertz octave bands that is perceivable by human sensation or exceeds an rms acceleration level of 50 dB(unweighted) re 1 micro-g at any time and for any duration either due to impulsive or periodic excitation of structure or any other mechanism at a Non-Participating Landowner's property line or at any point within a Non-Participating Landowner's property. (e) A tonal noise condition generated from commercial or industrial permitted facilities shall be assessed an upward noise penalty of 5 dBA (example 42 increased to 47 dBA) for assessment to the nighttime and daytime noise limits. (I) A noise level measurement made in accordance with methods in section "NOISE MEASUREMENT AND COMPLIANCE" that is higher than 39 dBA or 49 cIBC during the nighttime hours or 45 cIBA or 55 dBC during the daytime hours, adjusted for the penalty assessed for a tonal noise condition, shall constitute prima facie evidence of a nuisance. (g) An acoustic, vibratory or barometric measurement documenting oscillations associated to commercial or industrial permitted facilities with levels exceeding the limits in 23 shall constitute prima facie evidence of a nuisance. (h) All commercial and industrial activity shall comply with limits and restrictions anywhere at any time on another property unless Applicant provides documentation in the form of a signed approval by affected Participating and Non-Participating Landowners. Documents in full shall be recorded with the Tuscola County Register of Deeds waiving these requirements. Documents in full shall be recorded using only the WECS Waiver Form Revision 1 or later, with the Tuscola County Register of Deeds. (i) Leq 1-sec shall be used for all measurements and modeling. G. NOISE MEASUREMENT AND COMPLIANCE Post construction validation and compliance testing shall include a variety of ground and hub height wind speeds, at low (between 6-9mph) medium (between 9-22mph) and high (greater than 22mph). SCADA data shall be provided in the format determined by Township, Township licensed engineers, or Township professional acousticians. Compliance noise measurements are the financial responsibility of the WECS owner of the facility and shall be independently performed by a qualified professional acoustician approved by the Planning Commission when directed by the Almer Charter Township Board or their designated agent. Compliance noise measurements shall not exceed the stipulated noise limits and shall assess for and apply tonal noise penalties when warranted. 2. Quality: Measurements shall be attended. All noise measurements shall (must) exclude contributions from wind on microphone, tree/leaf rustle, flowing water, and natural sounds such as tree frogs and insects. The latter two can be excluded by calculating the dBA noise level by excluding octave band measurements above the 1000 Hz band as in ANSI S12.100
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3.11. The ANS-weighted sound level is obtained by eliminating values for octave bands above 1000 Hz, or one-third octave bands above 1250 Hz, and A-weighting and summing the remaining lower frequency bands. The wind velocity at the sound measurement microphone shall not exceed 3 m/s (7 mph, maximum) during measurements. A 7-inch or larger diameter windscreen shall be used. Instrumentation shall have an overall internal noise floor that is at least 5 dB lower than what is being measured. During testing of elevated sources including, but not limited to, wind turbines, the atmospheric profile shall be Pasquill Stability Class E or F preferred, Class D as alternate. Noise Level: Noise measurements shall be conducted consistent with ANSI S12.18 Procedures for Outdoor Measurement of Sound Pressure Level and ANSI S12.9 Part3 (Quantities and Procedures for Description and Measurement of Environmental Sound - Part 3: Short-term Measurements with an Observer Present), using Type 1 meter, A-weighting, Fast Response. 4. Tonal Noise: Tonal noise shall be assessed using unweighted (linear) 1/3 octave band noise measurements with time-series, level-versus-time data acquisition. A measurement shall constitute prima facie evidence of a tonal noise condition if at any time (single sample or time interval) the noise spectrum of the noise source under investigation shows a 1/3 octave band exceeding the average of the two adjacent bands for by 15 dB in low one-third octave bands (10-125 Hz), 8 dB in middle-frequency bands (160-400 Hz), or 5 dB in highfrequency bands (500-10,000 Hz). 5. Sample Metric and Rate: Noise level measurements for essentially continuous non-timevarying noise sources shall be acquired using the Leq(Fast) metric at a sample rate of 1-persecond. For fluctuating or modulating noise sources including, but not limited to, wind turbines, a 10-per-second sample rate or faster shall be used. These sample rates shall apply to dBA, dBC and unweighted 1/3 octave band measurements. 6. Reporting: Measurements of time-varying dBA and dBC noise levels and 1/3 octave band levels shall be reported with time-series level-versus-time graphs and tables. Graphs shall show the sound levels graphed as level-vs-time over a period of time sufficient to characterize the noise signature of the noise source being measured. For 1-per-second sampling, a 5-minute-or-longer graph shall be produced. For 10-per-second sampling, a 30second-or-longer graph shall be produced. Reporting shall identify, and graphs shall be clearly notated, identifying what was heard and when the noise source is dominating the measurement. Reporting shall furnish all noise data and information on weather conditions and, Pasquill Class occurring during testing. H. COMPLIANCE I. Non-compliance with ordinance requirements during SLUP process shall result in denial or revocation of the permit. 2. Non-compliance with post-construction ordinance requirements shall result in fines (minimum $250/day), permit denial, and WECS decommissioning. 3. Nuisance compliance complaints shall be resolved after section "Complaint Resolution" is completed. Applicant shall provide resolution plan within 30 days and resolve complaint
Almer Charter Township + Amendment of Section 1522 + Page 13 of 17 201 8March
within 90 days. WECS may be shut down during resolution time to extend resolution time to 180 days. 4. For non-nuisance compliance, and upon formal notice from Township or Resident to WECS permit holder, WECS permit holder shall respond within thirty (30) days with resolution plan, and up to one hundred eight (180) days to resolve compliance breach. Failure to resolve any compliance breach shall result in permit loss. Unless otherwise stated, Applicant shall provide in advance and comply with ordinance requirements prior to Township granting the permit. Conditional permits shall not be allowed. 5. In addition to any other remedies or complaint resolution procedures set forth in this Article, violations of this Article shall also constitute a municipal civil infraction in accordance with Article 20 of this Ordinance. Each day on which any violation of this Article continues shall constitute a separate offense. The Township may bring an action for an injunction to restrain, prevent or abate any violation of this Article. 6. Upon change of ownership, operator or parent company, the Township shall receive from the new owner, operator or parent company notification and updated documents within 90 days including, but not limited to, legal proof of change, corporate legal contact, security bond updates, emergency contact, and local contact. Section 3. Amendment of Section 1523. Section 1523 of the Zoning Ordinance is hereby amended to read as follows: Section 1523. DEFINITIONS. A. Participating Landowner: A landowner who has leased land to the WECS Applicant, received financial remuneration from the WECS Applicant, recorded with the Tuscola County Register of Deeds said agreement, and has a contract with the WECS Applicant. A Participating Landowner may also be called a WECS contract leaseholder. A Participating Landowner may or may not have turbines or infrastructure located on their property. B. Non-Participating Landowner: A landowner who has not signed a contract or any legal document with the WECS Applicant and has not given up rights to their owned land to the WECS Applicant. C. SCADA (supervisory control and data acquisition): A computer system that monitors and controls WECS units. D. dBA: The A-weighted sound level. E. dBC: The C-weighted sound level. F. Pasquill Stability Class: Reference, wikipedia.org "Outline of air pollution dispersion". G. Adverse Sound Character: Sound that causes building rattle, is impulsive, tonal, or has low-frequency bass rumble. Almer Charter Township + Amendment of Section 1522 + Page 14 of 17 201 8March
H. ANSI: the American National Standards Institute. I. Audible: The varying degrees of sound perception as reported by affidavit, including, but not limited to, just perceptible, audible, clearly audible, and objectionable. J. Decibel (dB): The practical unit of measurement for sound pressure level; the number of decibels of a measured sound is equal to 20 times the logarithm to the base 10 of the ratio of the sound pressure of the measured sound to the sound pressure of a standard sound (20 microPascals); abbreviated "dB." K. Emergency work: Any work or action necessary to deliver essential services in an emergency situation, including, but not limited to, repairing water, gas, electricity, telephone and sewer facilities and public transportation, removing fallen trees on public rights-of-way, and abating life-threatening conditions. L. Equivalent Sound Level (or Leq): The sound level measured in decibels with an integrating sound level meter and averaged on an energy basis over a specific duration. M. Excessive noise: Sound that is determined by ordinance to be too loud or unnecessary or creates a noise disturbance. N. Ambient: Ambient is defined as the sound pressure level exceeded 90% of the time over a 96-hour measurement period with daytime/nighttime division. 0. Noise: A sound, especially one that is loud or unpleasant or that causes disturbance. Any airborne sounds of such level and duration as to be or tend to be injurious to human health or welfare (well-being) or that would unreasonably interfere with activities or the enjoyment of life or property. P. Quiet Rural or Residential property: Any property where there is an inherent expectation of quiet, including, but not limited to, all residential, business, or agricultural-zoned properties, single family homes, and retirement homes. Q. Sound level meter: An instrument for the measurement of sound levels that meets the ANSI requirements of Si .4-1983 (or later revision) for Type 1 or 2 instruments. For frequency analysis, octave and 1/3 octave filters shall conform to ANSI Si.!!- 1986 (or later revision). R. GIS: Geographic Information System and is comparable to GPS (global positioning system) coordinates. S. Survival Wind Speed: The maximum wind speed, as designated by the WECS manufacturer, at which a WECS in unattended operation (not necessarily producing power) is designed to survive without damage to any structural equipment or loss of the ability to function normally. T. Tip Height: The height of the turbine with a blade at the highest vertical point. U. Wind Energy Conversion System (WECS): Any combination of the following:
Almer Charter Township + Amendment of Section 1522 + Page 15 of 17 201 8March
(a) A mill or machine operated by wind acting on oblique vanes or sails that radiate from a horizontal shaft; (b) A surface area such as a blade, rotor, or similar device, either variable or fixed, for utilizing the wind for electrical or mechanical power; (c) A shaft, gearing, belt, or coupling utilized to convert the rotation of the surface area into a form suitable for driving a generator, alternator, or other electricity-producing device; (d) The generator, alternator, or another device to convert the mechanical energy of the surface area into electrical energy; (e) The tower, pylon, or other structure upon which any, all, or some combination of the above are mounted. (1) Any other components not listed above but associated with the normal construction, operation, and maintenance of a wind energy conversion system. V. WECS Applicant: The person, firm, corporation, company, limited liability corporation or other entity, as well as the Applicant's successors, assigns and/or transferees, which applies for Township approval (permit) to construct a WECS and WECS Testing Facility. An Applicant must have the legal authority to represent and bind the Participating Landowner, or lessee, who will construct, own, and operate the WECS or Testing Facility. The duties and obligations regarding a zoning approval for any approved WECS or Testing Facility shall be with the WECS or Testing Facility owner, and jointly and severally with the owner, operator, and lessee of the WECS or Testing Facility if different than the WECS owner. W. Wind Energy Conversion System (WECS) Testing Facility: A structure and equipment such as a meteorological tower for the collection of wind data and other meteorological data and transmission to a collection source, shall not be deemed to be a communication tower. X. Li 0: Is the noise level exceeded for 10% of the time of the measurement duration. This is often used to give an indication of the upper limit of fluctuating noise, such as that from road traffic. Y. L90: Is the noise level exceeded for 90% of the time of the measurement duration and is commonly used to determine ambient or background noise level. Section 4. Validity and Severability. Should any portion of this Ordinance be found invalid for any reason, such holding shall not be construed as affecting the validity of the remaining portions of this Ordinance. Section 5. Repealer.
Almer Charter Township + Amendment of Section 1522
4 Page 16 of 17 201 8March
All other ordinances inconsistent with the provisions of this Ordinance are hereby repealed but only to the extent necessary to give this Ordinance full force and effect.
Section 6. Effective Date. This Ordinance shall be published and take effect seven days after publication as provided by law.
The undersigned Supervisor and Clerk of the Charter Township of Almer hereby certify that this Zoning Ordinance Amendment was duly adopted by the Township Board at a meeting held on the day of and was published in the Tuscola County Advertiser on the day of 2018. This Zoning Ordinance Amendment shall take effect seven (7) days after said date of publication.
Jim Mantey, Township Supervisor
Peggy Reavey, Township Clerk
84044:00001:3574757-3
Almer Charter Township + Amendment of Section 1522 4 Page 17 of 17 20 I 8March
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Why. does wind matter in Belvidere Township.?
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Our Local research Current Wind Zoning Ordinance (Section 10.28)
W,nd Lease
Minimum lot size is 10 acres (A, 1)
Home,'
510-15.000 pe' yea, pe' lwblne
i Shall not exceed 350 feet (A, 2) Test tower max 300 feet (A, 2) Minimum setback from existing residence=500 feet (A, 3)
III.
64OFoo
Separation distance refers to manufacturer recommendations (A, 3) Blades are able to be only 20 feet off the ground (B, 1) Shadow flicker based on roadways and buildings (B, 4) o
No noise level shall exceed 55 decibels (B, 6) Par;?I
i Sound pressure level measurement submitted AFTER installation (B, 6) I
Artificial lighting must meet Federal Aviation requirements (B, 7B)
Usable Land,
After one year of no use, WECF is considered abandoned and must be Removed (B, 10) Special Authorization and Approval Procedure
(c)
Citizen recommended changes Tower height shall not exceed 500 feet to tip of blade in vertical position Blade clearance from ground shall be 75-100 feet minimum Shadow flicker shall not fall on nonparticipating property lines Decommission of turbine i Cash in funds for removal of each turbine built by company that builds them 100,000-500,000 each to remove tower and base Aircraft Detection Lighting System Sound limits must not exceed 45 dba Lmax at any time at the property line of non-participating Landowners. Intermittent sound is produced so it is not comparable to a constant sound Prevents averaging of noise Minimum lot size should be sufficient to allow setbacks to be completely included within bounds of leased property Setback of 400 feet for every 100 feet of tower (to tip of blade in vertical position) from property lines of nonparticipating landowners. Setback of 500 feet for every 100 feet of tower (to tip of blade in vertical position) from lakes, rivers and streams Groundwater contamination concerns, sight pollution
Belvidere Township Zoning Ordinance
Section 10.27 Veterinary Clinics A. Compliance with Table 3-4: See Table 3-4 for standards pertaining to minimum lot area, width, frontage, and yard setbacks, and maximum building height and lot coverage, except as follows: 1. Buildings where animals are kept, dogruns, paddocks, and/or exercise areas shall not be located nearer than one hundred feet (100) to any adjacent lot line in a Residential District, or to any adjacent building used by the general public. B. Additional Standards: 1. There boarding of animals shall be limited to only those receiving care that requires overnight boarding unless otherwise approved as part of an application for a kennel. 2. No dogs shall be permitted in open run areas between the hours of 10:00 p.m. and 7:00 am. 3. An adequate, enclosed method of refuse storage and disposal shall be maintained so that no public nuisance shall be created at any time. 4. See also Article 5, Signs; Article 6, Access Management and Private Roads; Article 7, Off-Street Parking and Loading; Article 8, Landscaping and Screening; Article 9, Environmental Standards: Article 20, Supplemental Provisions, and other Articles as applicable.
Section 10.28 Wind Energy Conversion Facility, Commercial A. Compliance with Table 3-4: See Table 3-4 for standards pertaining to minimum lot area, width, frontage, and yard setbacks, and maximum building height and lot coverage, except as follows: 1. The minimum lot area shall be as necessary to meet required setbacks and any other standards of this Ordinance, but in no case shall the lot be less than ten (10) acres. 2. The permitted maximum total wind turbine height shall be 350 feet. The permitted maximum total test tower height shall be 300 feet. All heights shall comply with the requirements of the Federal Aviation Authority and county, state and federal regulations including the Michigan Tall Structures Act and Airport Zoning Act. As a condition of approval of a commercial WEOF, the Township may require a lesser height for a wind turbine if reasonably necessary to comply with the general special land use approval standards of Section 5.6. 3. No part of a commercial WECF or test tower (including guy wire anchors associated with a test tower) shall be located within or above any required front, side or rear yard setback according to Table 3-4. In addition, such turbine shall be set back a minimum distance from all property lines and above-ground public electrical and communication lines a distance equal to the wind turbine height, but in no case shall a wind turbine be located within five-hundred (500) feet of an existing residence. No wind turbine shall be located closer to another wind turbine than the minimum separation distance recommended by the manufacturer or the wind energy industry as may be published from time to time. B. Additional Standards: No rotor/blade shall approach closer than twenty (20) feet to the ground surface below and seventy-five (75) feet to any structure or tree on the same parcel. 2. Safety Measures: a. All access doors to turbine towers and electrical equipment shall be lockable, and no climbing device shall be made part of a wind turbine except within the interior of the tower from such lockable door or where not located within twelve (12) feet of the ground when placed on the exterior of the tower. b. A tower capable of being climbed shall be enclosed by a locked, protective fence at least ten (10) feet high with barbed wire fence. c. All electrical equipment shall include applicable warning signs. d. All electrical wiring shall comply with all applicable safety and stray voltage standards including any connections to an off-site electrical network. e. All electrical distribution lines from the WECF to an off-site electrical network shall be located and maintained underground on the property where the WECF will be located. f. AWECF shall include a system to prevent uncontrolled rotation at excess wind speeds unless the manufacturer certifies that such a system is not necessary. 3. A test tower shall be temporary and removed within twenty-four months of erection. 4. A WECF shall be sited in such a manner to minimize shadow flicker from the blades on any road or on any building on an adjacent property existing at the time the application is considered. The approving body may require the applicant to submit a shadow report illustrating or otherwise delineating the projected shadow pattern of the WECF on June21 and December 21, specific to the Belvidere Township area, including the source and basis for such projections. Article 10: Standards and Regulations for Specific Land Uses 10-20
Belvidere Township Zoning Ordinance
2.
3. 4. 5.
6. 7.
8.
9.
10.
11.
feet of the exterior boundaries of the parcel where the proposed commercial WECF and/or test tower will be located. Specific distances to other on-site buildings, structures, and utilities shall also be provided. The location of all existing and proposed overhead and underground electrical transmission or distribution lines shall be shown, whether to be utilized or not with the commercial WECF or test tower, located on the parcel involved, as well as within 1,000 feet of the boundaries of such parcel. A lighting plan describing all lighting that will be utilized, including any lighting that may be required by the Federal Aviation Authority. Such plan shall include but shall not be limited to the planned number and location of lights, light color and whether any lights will be flashing. Location of access drives and their dimensions and construction profiles. Planned security measures to prevent unauthorized trespass and access. Narrative description of facility operations including anticipated regular and unscheduled maintenance, and the manner in which the site will be returned to its original condition upon termination of its use as a commercial WECF. Proof that the proposed WECF site has a minimum wind rating of 3 according to the U.S. Department of Energy, National Renewable Energy Laboratory. A description of the routes to be used by construction and delivery vehicles and of any road improvements that will be necessary in the county to accommodate construction vehicles, equipment or other deliveries. The applicant shall conduct an analysis of the alternating changes in light intensity caused by the moving blades of a WECF casting shadows on the ground and stationary objects, commonly referred to as "shadow flicker." The analysis shall identify the locations of shadow flicker that may be caused by the WECF and the expected durations of the flicker at these locations where located on adjacent properties, from sunrise to sunset over the course of the year. The analysis shall identify areas where shadow flicker may affect such properties including persons in structures or on roads, measures that shall be taken to eliminate or mitigate flicker in such circumstances, and the source and basis for such flicker projections. Where the Planning Commission determines that a proposed WECF site is part of an area characterized by a comparatively high concentration of birds, bat hibernacula, sites that are frequented by federally and/or state listed endangered species of birds and bats, significant bird migration pathways, and/or areas that have landscape features known to attract large numbers of raptors, the applicant shall fund an environmental study assessing the potential impact on such wildlife. At a minimum, the analysis shall include a thorough review of existing information regarding species and potential habitats in the vicinity, the potential effects on specifies listed under the federal Endangered Species Act and Michigan's Endangered Species Protection Law, and the extent to which the WECF conforms to the "Interim Guidance on Avoiding and Minimizing Wildlife Impacts from Wind Turbines" as prepared by the U.S. Fish and Wildlife Service. The applicant shall submit modeling and analysis that will confirm that the WECF will not exceed the maximum permitted sound pressure levels specified in subsection (13)(1). Modeling and analysis shall conform to International Electrotechnical Commission 61400 and International Organization for Standardization 9613. A copy of the manufacturer's installation instructions and blueprints shall be provided to the Township. Included as part of or as an attachment to the installation instructions shall be standard drawings of the structural components of the WECF and support structures, including base and footings provided along with engineering data and calculations to demonstrate compliance with the structural design provisions of the Building Code as adopted by the Township. Drawings and engineering calculations shall be certified by a registered engineer licensed in the State of Michigan.
Section 10.29 Wind Energy Conversion Facility, Private A. Compliance with Table 3-4: See Table 3-4 for standards pertaining to minimum lot area, width, frontage, and yard setbacks, and maximum building height and lot coverage, except as follows: 1. The minimum lot area for a private WECF, or test facility, shall be as necessary to meet required setbacks and any other standards of this Ordinance, but in no case shall the lot be less than the minimum lot area required for the principal use. 2. The permitted maximum total private wind turbine or test tower height shall be ninety (90) feet. All heights shall comply with the requirements of the Federal Aviation Authority and county, state and federal regulations including the Michigan Tall Structures Act and Airport Zoning Act. 3. No part of a private WECF or test tower (including guy wire anchors associated with a test tower) shall be located within or above any required front, side or rear yard setback according to Table 3-4. In addition, in the case of a wind turbine serving a private WECF, such turbine and test tower shall be set Article 10: Standards and Regulations for Specific Land Uses 10-22
Belvidere Township Zoning Ordinance operational information including, but not necessarily limited to, a warning of high voltage and a specification of the manufacturer's name, company/utility operator, and emergency number(s). Under no circumstances shall any WECF or test tower produce vibrations or wind currents humanly perceptible beyond the property boundaries of the parcel on which the WECF or test tower is located. See also Article 5, Signs; Article 6, Access Management and Private Roads; Article 7, Off-Street Parking and Loading; Article 8, Landscaping and Screening; Article 9, Environmental Standards; Article 20, Supplemental Provisions, and other Articles as applicable. C. Special Authorization and Approval Procedures for Private WECF: 1. 2.
Private WECFs shall be construed as accessory structures, as defined in this Ordinance, and are permissible in all districts. Approval Procedures: a. A private WECF that has a wind turbine height of no greater than sixty (60) feet, is subject to Zoning Administrator approval according to Section 2.4(B). The applicant shall submit a plot plan containing the information required by Section 2.4(B)) and any additional information necessary to demonstrate conformance with the standards of this Section. The Zoning Administrator shall approve such application upon finding that the WECF application complies with the standards and regulations of this Section and Ordinance. b. A private WECF that has a wind turbine height greater than sixty (60) feet, is subject to Planning Commission approval. The applicant shall submit a plot plan containing the information required by Section 2.4(B) and any additional information necessary to demonstrate conformance with the standards of this Section. The Planning Commission shall approve such application upon finding that the WECF application complies with the standards and regulations of this Section and Ordinance, and that the WECF is sited to maximize compatibility with surrounding conditions to the greatest extent practical.
Section 10.30 Wireless Communication Towers A. Definitions: For the purposes of this Section, the following phrases shall have the following meanings: 1.
2. 3.
4.
5.
6.
Collocate: To place or install wireless communications equipment on an existing wireless communications support structure or in an existing equipment compound. 'Collocation" has a corresponding meaning. Equipment compound: An area surrounding or adjacent to the base of a wireless communications support structure and within which wireless communications equipment is located. Wireless communications equipment: The set of equipment and network components used in the provision of wireless communications services, including, but not limited to, antennas, transmitters, receivers, base stations, equipment shelters, cabinets, emergency generators, power supply cables, and coaxial and fiber optic cables, but excluding wireless communications support structures. Wireless communications support structure: A structure that is designed to support, or is capable of supporting, wireless communications equipment, including a monopole, self-supporting lattice tower, guyed tower, water tower, utility pole, or building. Wireless Communication Facility: All structures and accessory facilities, and improvements thereto, relating to the use of the radio frequency spectrum for the purpose of transmitting or receiving radio signals; including, but not limited to, equipment compounds, wireless communications equipment, and wireless communications support structures. Not included in this definition are: citizen band radio facilities; short wave receiving facilities; radio and television broadcast reception facilities; satellite dishes; federally licensed amateur (HAM) radio facilities, towers for personal communications only, and governmental facilities which are subject to state or federal law or regulations which preempt municipal regulatory authority. Wireless Communication Facility, Class One: Any wireless communication facility and modifications thereto that meet all of the following requirements: a. No construction or other improvements provide for the erection of a new wireless communications support structure, but may provide for an increase in height of an existing tower as provided by subsection (d)(1) below. b. All proposed wireless communications equipment will be collocated on an existing wireless communications support structure or in an existing equipment compound. c. The existing wireless communications support structure or existing equipment compound is in compliance with this Ordinance or was previously approved by the municipality in which it is located.
Article 10: Standards and Regulations for Specific Land Uses 10-24
Date: 04/06/2021
New Belvidere Township Wind Ordinance 2021: 1) Wind Tower height measured to the tip of the blade when it is in vertical position will not exceed 500 feet. 2) Blade clearance from the ground shall not be less than 75-100feet. 3) Shadow Flicker shall not fall on any nonparticipating property line.3) Distance from nonparticipating landowner's property lines, 400 feet for every 100 feet of tower. If tower is 500 feet at vertical tip of the blade the setback would be 2000 feet. 4) Cash fund to decommission a tower no longer in working condition of $100,0004500,000 for each turbine to completely remove tower and base. Based on inflation. 5) Aircraft Detection Lighting System. 6) Sound limits must not exceed 45dba Lmax at any time at the property line of nonparticipating landowners. 7) 2500 feet for setbacks from lakes, rivers, wetlands, and streams, this would be for a 500-foot turbine.
Concerns: 1) Effects on wells, lakes, rivers, wetlands, and streams. 2) Effects on wildlife. 3) Health issues. 4) Lawsuits currently pending in other townships in the state of Michigan and other states. 5) Tourism costs. 6) Efficiency rating for each turbine. 7) Carbon footprint on manufacturing, operating and building of towers. 8) Property Values. Listen to Kevon Martis via Zoom April 8, 2021 @ 7PM TOPIC: Pine Township Coalition for Safe Energy Meeting ID:830 8807 7109 Passcode C5pPan Gratiot County resident willing to host anyone interested in seeing turbines: Nancy Mumby-Welke 11652 Van Buren Road Merrill, Ml
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Belvidere Township Residents Montcalm County, Michigan March 2021
Many townships in Montcalm County have been targeted for Wind Turbines to be built here. Belvidere township is among the targeted areas chosen for this. Other townships in Montcalm County have now put a pause on current wind ordinances until all information can be gathered for good business practices, and safety can be addressed. Belvidere township is now changing monthly board meetings to 9am monthly on the second Wednesday of each month. We would like to have a moratorium put on any changes to our wind ordinance for six months until all issues are researched on the effects of having wind turbines approved for our township. I will be attending the Planning Commission meeting on April 6th at 6pm to discuss what issues we think need to be addressed. I will also attend the next board meeting on April 14th and invite all of you attend with me to learn more what is happening and why we need to protect our township residents. Here are some of the points concerning wind turbines that we would like to be considered and addressed:
A) Proper setbacks from property lines, lakes, and rivers. B) Lmax noise. C) Blade clearance from the ground. D) Shadow flicker. Please print your name and address and sign the petition. JOIN MONTCALM COUNTY CITIZENS UNITED ON FACEBOOK to help you review what is going on in your surrounding townships as well as the township you live in.
Kenneth Purchase Belvidere Township Resident (989)287-0572
3/10/21 Letter to the Board Regarding: What other Townships are implementing. Points of Concern. Long Term Interest or Belvidere Township (Board Meeting) 3/16 Tarin Minkel Presentation Too PC 3/16/21 PC voted to recommend to the board a moratorium of 6 months on new wind ordinance. 4/14/21 Gratiot County Harold Lawsuit Article (BOARD MEETING) Board voted to put a moratorium of 6 months on new wind ordinance and no permits to be issued in regards to putting up wind turbines. 5/4/21 PC Meeting: More concern over lawsuits and money lost to township over to restrictive ordinance. (PC MEETING) 5/4/21 Proposed changes to wind ordinance were discussed. 5/12/21 PRESENT THREE CURRENT LAWSUITS PENDING IN MICHIGAN. PRESENT 3 CURRENT NEW WIND ORDINACES THAT ARE RESTRICKTIVE TO BE ENTERED INTO THE RECORD TO BE REVIEWED BY OUR PC AND BOARD. 5/12/21
Main Concerns: Health, Welfare & Safety OF OUR RESIDENTS
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HOMES AND WIND TURBINES DOU'T MIX
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BELVIDERE TOWNSHIP MASTER PLAN
Importance and Application of the Master Plan The importance and application of the Belvidere Township Master Plan are demonstrated in the longterm interests of the township and the day-to-day administration of the townships planning and zoning program.
Long Term Interests
There are a number of interests shared by residents and officials today that can be expected to continue for years to come and be similarly shared by future residents and new officials. Some of these important interests include: • Protecting the township's rural atmosphere. • Protecting the quality of life. • Protecting the township's natural resources, including its lakes and other water resources, woodlands, wetlands, wildlife, and farmland. • Minimizing tax burdens. • Ensuring appropriate land use and adequate services to protect the public health, safety, and welfare of residents and visitors. • Ensuring compatibility with the use and development of neighboring properties. The Master Plan presents a future-oriented growth strategy that seeks to further these interests.
Day-To-Day Administration
In addition to furthering the long-term interests of the township, the Master Plan also plays an important role in the day-to-day planning and zoning efforts of the township: • Advisory Policies: The Plan is an official advisory policy statement that should be readily shared with existing and prospective landowners and developers. The Plan informs them of the long term intentions of the township regarding land use and public services and encourages development proposals more closely integrated with the policies of the Plan. • Regulatory Programs: The Plan establishes a practical basis for the township to revise, update, or otherwise prepare regulatory programs, including zoning and land division regulations, intended to ensure that the policies of the Plan are implemented. • Review of Land Development Proposals: Chapter Two includes a list of township goals and objectives which should be reviewed when consideration is given to future proposed rezoning requests, site plans, and related land use proposals, to further establish a record upon which the proposal can be evaluated. Equally important, Chapter Three provides policies regarding the planned future land use pattern in the township —valuable reference points upon which land use proposals should be evaluated. • Public Services Improvements: The identification of a planned future land use pattern enables the township to pinpoint areas that may be in need of current or future public services improvements. The identification also enables the township to better determine areas of future need, rather than playing "catch-up" while the township's health, safety, and welfare may be at risk. Chapters Four and Five provide important guidance in this area.
Chapter One: Introduction 1-3
How to Regulate Wind Energy Projects Although wind turbines have been used for centuries, recent advancements in technology have made wind turbines a viable source of alternative renewable energy. The increase in demand for energy produced from wind has caused a proliferation of commercial-scale wind farms in Michigan. The location and siting of large wind turbines in a small area may cause local impacts. Townships have the authority to address these concerns through reasonable regulation, as explained in this month's E-Letter.
Harvesting the Wind To reduce reliance on fossil fuels (coal, gas and oil), Michigan commenced an initiative to supplement existing utility facilities with alternative renewable energy. Due to the number of hours providing useable sunlight, Michigan's most viable alternative energy is produced by wind turbines at this time. As solar technology improves this may change, but the current preferred alternative energy is wind energy.
Wind turbines range in size and complexity. The size and complexity of the turbine is directly related to the use to which the turbine will be used. The potential uses can be divided into two categories: (1) commercial-scale wind energy production for wholesale and (2) on-site wind energy production for personal needs. The potential concerns differ depending on the scale of the wind turbines, the number of turbines in a proposed project, and the intended use. Commercial-scale operations for wholesale production are more intensive. A single commercial-scale wind turbine can generate up to 5 megawatts of power, providing enough electricity for more than 500 homes. On the other hand, private-scale wind turbines designed to generate power for on-site uses can be harmonious and have minimal impact on surrounding properties.
Does the Township Need to Regulate Wind Turbines? The threshold question for any township is whether the township needs a wind ordinance. This depends on numerous factors that are specific to each township, including:
• The township's perspective and position on wind turbines being sited and located in the township. • The growing interest in wind turbines caused by the State of Michigan's mandate for renewable energy production goals, and federal and state tax incentives. While many think of large developments, farmers are also expressing an interest in wind energy to curtail their significant energy consumption. Certain programs are available to also assist with financing these projects. • Available land in the township for siting wind turbines and the local potential wind-energy capacity. Each area in the State has a different wind speed, which directly impacts the amount of energy that can be produced. Some areas, such as the Thumb, have had developments for 10 years or more due to the available wind speed. Other areas may not have sufficient wind to make a commercialscale project viable. Even if a township determines that it needs a wind ordinance, the amount of regulation and the concerns regulated can be specifically tailored to the township. For instance, more developed townships may be concerned with which areas turbines can be located to minimize disruption with neighboring residential areas. Others may be comfortable with siting turbines in the open agricultural areas and are only concerned with abandonment and decommissioning of the turbines 20 to 30 years later.
What Options Are Available to Regulate Wind Turbines? The authority vested in a township under the Michigan Zoning Enabling Act, the Michigan Planning Act, and MCL 41.181 provide a township three viable options for regulating wind turbines. The options can be broken down as follows:
• Adopting a zoning ordinance or amending a current zoning ordinance; • Adopting a non-zoning ordinance to protect the public health, safety, general welfare of township residents; • Adopting both a zoning ordinance and non-zoning ordinance.
The Zoning Approach The power to adopt and amend zoning ordinances is governed by the Zoning Act, which was comprehensively amended in 2006. The Zoning Act provides the township authority to regulate land uses and buildings by districts, locations and areas. Townships that choose to regulate wind energy under the zoning approach must have a planning
commission and a zoning ordinance (or otherwise create them). Wind turbine provisions in a zoning ordinance can address the peculiar impacts of a commercial-scale wind farm and an on-site wind turbine with the following methods:
• Identify and provide for the zoning districts where wind-energy use is permitted by right or by special use • Creation of a new zoning district, identified as wind energy overlay, that can allow wind turbines to be sited in the locations of the township where wind turbines are most compatible with surrounding uses and the subject property is rezoned to such use Depending on a township's goal in regulating wind turbine projects, providing for wind-energy zoning districts by right and special use permits is significantly different than requiring the rezoning of a subject property to fall within a wind-energy district. The special use permit process will be carried out by the township planning commission and township board. The decision to approve the special use permit will rest with either the township planning commission or the township board, depending on the township's zoning ordinance. But, a township that adopts a zoning ordinance requiring the subject property to be rezoned for wind-energy use ultimately subjects the decision of the township board to referendum. Since the rezoning is considered an amendment to the zoning map, residents of the township are provided the ability to circulate a petition and subject the decision to a vote at a general election. While this approach can slow the development process and also limit potential developers interested in creating projects in a township, it also provides a mechanism to ensure that the majority of voters in the township support the development.
In addition to how and where to site and locate wind turbine projects, the zoning approach allows the township's zoning board of appeals to provide a mechanism to address and vary non-use conditions that don't work for a specific project. For instance, a township may adopt a regulation limiting the height of turbines to 425 foot tall. A developer, however, could request a variance to construct a project with 450 foot tall turbines.
Non-zoning Approach
The power to adopt a non-zoning ordinance is provided under MCL 41.181, which provides for the adoption of ordinances "regulating the public health, safety, and general welfare of persons and property" of the township. The ordinance cannot regulate by districts. Townships that do not currently have a planning commission or zoning ordinance may find that a non-zoning ordinance best suits its needs. This type of ordinance is not subject to referendum and regulates current and future wind turbine projects. "Grandfathering" of nonconforming uses does not apply to a non-zoning ordinance.
Non-zoning regulations can be comprehensive ordinances addressing all concerns regarding wind turbines or be a general noise or nuisance ordinance. The difficulty with general noise and nuisance ordinances is that they often do not provide sufficient protection to address the specific concerns that are raised by wind turbine construction and operation. A non-zoning ordinance adopted to address these specific concerns may be a better approach.
Townships subject to county zoning ordinances, however, must be cautious when adopting a non-zoning ordinance. Any inconsistency between a township's non-zoning ordinance and a county zoning ordinance could make the township's ordinance unenforceable. See MCL 125.3209 and MCL 125.3210. In these instances, the township may find that it is best to adopt a zoning ordinance.
Combined Approach All townships are provided statutory authority to adopt non-zoning ordinances under MCL 41.181. Those townships that also have a zoning ordinance may find that a combined approach of adopting a non-zoning ordinance and wind energy provisions in a zoning ordinance provides a flexible and defensible approach. The combined approach provides a method for a township to address specific concerns that arise in each land use district, but also create general standards that regulate the operation of any wind turbine in the township.
What Issues Should be Addressed in an Ordinance?
Wind turbines, either as a commercial-scale operation or a wind turbine providing power for on-site operations only, cause impacts to the local community that are different than uses and activities currently regulated by a township. The following list provides issues that a township should consider when drafting and adopting a wind ordinance (either as a zoning or non-zoning ordinance):
• Setbacks • Height • Noise • Shadow flicker • Decommissioning/abandonment • Environmental impact • Compliance with building codes • Compliance with federal, state and local agency statutes, codes and ordinances • Permitting test facilities and meteorological towers • Rotor clearance and length • Tower access and safety • Aesthetics, including neutral colors and lighting • Signage on the turbine and related facilities • Inspections and owner/operator maintenance • Permit terms and fees • Liability to property owners • Security and escrow accounts to handle damage during construction, postconstruction damages and liability and the costs for application review of a permit requests and site plans • Safety (ice-throw, blade-failure, tower-failure) • Turbine technologies capable of mitigating or resolving concerns
Although all of the issues listed above should be considered, setbacks, turbine heights, noise, and shadow flicker are "hot button" issues for residences.
Townships that regulate wind-energy turbines currently set the height of turbines from 350 to 600 foot tall. The height of the turbine affects setback considerations, which provide aesthetic and safety concerns (i.e., fall zone), and noise reduction. The taller the turbine permitted, generally there is a greater need for larger setbacks. Some regulations include 1600 feet or 4 times the height of the turbine (tower and blades) from residential structures and parcel lines. Participating property owners and non-participating property owners (neighbors to a project)
could be permitted to waive setback distances to a certain extent from impacted buildings or property lines.
The height of the turbines and the setback from structures or parcel lines also impacts noise issues. The larger the setback, less noise will be audible on adjacent properties or near structures. Generally, noise limits are set in a township so that an operating turbine produces noise similar to the ambient environment. Many in the industry suggest that a turbine should operate in a range of 35 dB to 55 dB. Some townships even adjust the noise level depending on the time of day (i.e., daytime or nighttime).
A concern similar to noise is shadow flicker. Shadow flicker is created by the shadow cast from the turbines as they rotate. Technology on new turbines can minimize or eliminate this issue. Setbacks from residential structures can also mitigate the impact on residents. Many townships set a maximum number of hours that a turbine can operate while causing shadow flicker. Guidelines are currently recommending approximately 30 to 40 hours a calendar year.
—Christopher Patterson cpatterson@fsbrlaw.com
Click here for a PDF version of this publication. Fahey Schultz Burzych Rhodes PLC, Your Township Attorneys, is a Michigan law firm specializing in the representation of Michigan townships. Our lawyers have more than 150 years of experience in township law, and have represented more than 150 townships across the state of Michigan. This publication is intended for our clients and friends. This communication highlights specific areas of law, and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.
• Looking for Additional Resources? ve pusi penxic owieurns o newseUers, as well as provide presentations and seminars to our clients. Contact us or check out our resources to learn more. LEARN MORE
Talk to an Attorney
John Anderson, Sheilia Smith, Forrest Herzog, Carolyn Kelsey, Andrew Reynolds Belvidere Township Officials Montcalm County, Michigan Date: 03/10/2021 Other townships in Montcalm County have now put a pause on new wind ordinances until all information can be gathered for good business practices, and safety can be addressed. Going forward, it is our opinion that township meetings should be held with Zoom Meetings available for township residents due to Covid-19 and with meetings now changing to 9am monthly on the second Wednesday of the month, it will seriously restrict the ability for residents to attend. Here are some of the points concerning wind turbines that we would like to be considered and addressed: A) Proper setbacks from property lines, lakes, and rivers. B) [max noise. C) Blade clearance from the ground. D) Shadow flicker. Township Residents,
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General Description
1 Introduction This document provides setback guidance for the siting of wind turbines. This guidance considers potential safety risks associated with wind turbines such as objects (maintenance tools, ice, etc.( directly falling from the wind turbine, unlikely occurrences such as tower collapse and blade failure, and environmental
I operational risks such
as ice throw. The guidance is general in nature, and is based on the published advice of recognized industry associations. Local codes and other factors may dictate setbacks greater than the guidance in this document. The owner and the developer bear ultimate responsibility to determine whether a wind turbine should be installed at a particular location, and they are encouraged to seek the advice of qualified professionals for siting decisions. It is strongly suggested that wind developers site turbines so that they do not endanger the public.
2 Falling Objects There is the potential for objects to directly fall from the turbine. The objects may be parts dislodged from the turbine, or dropped objects such as tools. Falling objects create a potential safety risk for anyone who is within close proximity to the turbine, i.e., within approximately a blade length from the turbine.
3 Tower Collapse In very rare circumstances a tower may collapse due to unstable ground, a violent storm, an extreme earthquake, unpredictable structural fatigue, or other catastrophic events. Tower collapse presents a possible risk to anyone who is within the distance equal to the turbine tip height (hub height plus ½ rotor diameter) from the turbine.
4 Ice Shedding and Ice Throw As with any structure, wind turbines can accumulate ice under certain atmospheric conditions. A wind turbine may shed accumulated ice due to gravity, and mechanical forces of the rotating blades. Accumulated ice on stationary components such as the tower and nacelle will typically fall directly below the turbine. Ice that has accumulated on the blades will likewise typically fall directly below the turbine, especially during start-up. However, during turbine operation under icing conditions, the mechanical forces of the blades have the potential to throw the ice beyond the immediate area of the turbine.
5 Blade Failure During operation, there is the remote possibility of turbine blade failure due to fatigue, severe weather, or other events not related to the turbine itself. If one of these events should occur, pieces of the blade may be thrown from the turbine. The pieces may or may not break up in flight, and are expected to behave similarly to ice thrown from the blade. Blade failure presents a possible risk for anyone beyond the immediate area of the turbine.
PUBLIC - May be distributed external to GE on an as need basis. UNCONTROLLED when printed or transmitted electronically. © 2018 General Electric Company and/or its affiliates. All rights reserved. SetbackConsideratuons_Generic_xxHzENr04.dc,cx
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GE Renewable Energy
- Original
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General Description
7 Setback Considerations Setback considerations include adjoining population density, usage frequency of adjoining roads, land availability, and proximity to other publicly accessed areas and buildings. Table 1 provides setback guidance for wind turbines given these considerations. GE recommends using the generally accepted guidelines listed in Table 1, in addition to any requirements from local codes or specific direction of the local authorities, when siting wind turbines.
Setback Distance from center of turbine tower
Objects of concern within the setback distance
All turbine sites (blade failure/ice throw): 1.1 x tip height', with a minimum setback distance of 170 meters
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Public use areas Residences Office buildings Public buildings Parking lots Public roads Moderately or heavily traveled roads if icing is likely Heavily traveled multi-lane freeways and motorways if icing is not likely Passenger railroads -
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All turbine sites (tower collapse): 1.1 x tip height'
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All turbine sites (rotor sweep/falling objects): 1.1 x blade length 3
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Public use areas Residences Office buildings Public buildings Parking lots Heavily traveled multi-lane freeways and motorways Sensitive above ground services 2 Property not owned by wind farm participants' Buildings Non-building structures Public and private roads Railroads Sensitive above ground services
Table 1: Setback recommendations
The wind turbine buyer should perform a safety review of the proposed turbine location(s). Note that there may be objects of concern within the recommended setback distances that may not create a significant safety risk, but may warrant further analysis. If the location of a particular wind turbine does not meet the Table 1 recommended guidelines, contact GE for guidance, and include the information listed in Table 2 as applicable.
1
The maximum height of any blade tip when the blade is straight
up
(hub height + ½ rotor diameter).
2 Services that if damaged could result in significant hazard to people or the environment or extended loss of services to a significant population. Examples include pipelines or electrical transmission lines. 3 Use ½ rotor diameter to approximate blade length for this calculation. 4 Property boundaries to vacant areas where there is a remote chance of future development or inhabitancy during the life of the wind farm. PUBUC - May be distributed externai to GE on an as need basis. UNCONTROLLED when printed or transmitted electronically. © 2018 General Electric company and/or its affiliates. All rights reserved. Set back_considerations_Generic_xxHz_E4_rO4.docx
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Vestal's February 13, 2019
Re: Safe radius requirements for wind turbines under normal and emergency operating conditions It has come to our attention that a Vestas manual is being referenced as a reason for Neosho County to reconsider the setback distances required for wind turbines. We would like to clarify the purpose of this manual. Vestas' Site Emergency Response Plan (ERP) should not be misinterpreted as guidance for setback distances for wind turbines from homes, roads, property lines or otherwise. Outdated Vestas work instructions unfortunately continue to be quoted by opponents of wind energy projects. as appears to be the case here. Vestas has updated our manuals, and we now address 'clearance areas in the case of incident" in site-specific ERPs that are tailored for each wind farm. The ERP for a specific project will include temporary clearance areas that should be used when the area is cleared in the case of an incident. This specification of a clearance area, however, should not be cited as support for any siting distance for wind turbines, as this does not apply to normal operating conditions. Rather, the language applies only in case of an incident. Vestas turbines are designed and tested according to recognized industry standards, including those issued by the IEC, and are independently certified. As in any emergency situation, good judgement and common sense should be used to establish a temporary clearance area, local requirements and site safety protocol should be followed, and local emergency personnel should be alerted. If a turbine incident is identified, but the situation has been mitigated. the establishment of a temporary clearance area may not be required. As with any sophisticated electric generation equipment. abnormal operating conditions can occur, in which case the turbine monitoring sensors and control system logic are set to automatically shut down the equipment. Further, the turbines are monitored by highly trained operators who are ready to quickly respond. The many redundant systems preventing abnormal operation mean that emergency situations requiring temporary clearing of an area are extremely rare. As information provided by Vestas regarding the establishment of siting distances has commonly been taken out of context and misquoted, we no longer publish guidance on the topic, and we instead refer to the information provided by relevant expert associations such as the American Wind Energy Association. Sincerely, Vestas - American Wind Technology 1417 NW Everett St. Portland, OR 97208
Vestas-American Wind Technology, Inc. 1417 NW Everett Street, Portland, OR 97209, USA Tel .1 503 327 2000. Fax 1 503 327 2001, vestas-amencaslvestas corn. www vestas.corn V0000 P1000 otory No0oe Trs 0000nneot 00010,1,0 00b10 cont400ya ,01oo,robon 01 000100 W,00 SyOtOOrO 0o4 1,0 proceolotI by COpyoght Ow 00 On 'Owrk Veo003 ,000roes 00 paie't cccynght 000101 o.',d other 000pnetary 091110 tot 11.0 ,r11onrr00ot, fl 110,0 000,00001 r10 not be 0000 '09 ,011001111 or aooio,0ed 000001 I and to the 011001 nghto we 00p1000y gterfiett by Veotoo
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Re: Creating an Emergency Response Plan for a wind energy facility As described in a previous letter, when Vestas is the turbine supplier for a wind energy facility, it will work with the project's operator to develop a site-specific Emergency Response Plan (ERP) before commercial operation begins. This plan will be customized to the site and will incorporate site-specific information that includes: • Topography and vegetation of the site; • Weather patterns (for example likelihood of icing) on the site; • Training, expertise, and resources of local emergency responders; • Specific turbine model used (hub height and access); • Final layout; and • Proximity to existing emergency response facilities. The ERP will be developed in coordination and consultation with: • Local hospital and EMT departments; and • Local fire and police departments It will include a map of turbine locations and other project infrastructure, including best and alternate access routes to be provided confidentially to first responders. Because the ERP is based on a final facility design, the ERP cannot be completed until a site plan is finalized. The final locations of turbines, access roads, and other project facilities must be identified before an ERP may be created. The following rough timeline describes the typical order of events that must occur to prepare a wind energy facility for turbine erection: 1. Developer enters Turbine Supply Agreement with turbine vendor 2. Developer makes required financial deposit to secure turbines for project (usually in the tens of millions of dollars) 3. Turbine supplier locks in production plans for turbines that will be used for the project 4. Final turbine locations selected and final geotechnical analysis takes place to ensure appropriate construction plans for turbines 5. Developer finalizes access road locations 6. Working with selected BOP contractor, developer finalizes transportation plan 7. Turbine supplier works with project operator to draft site-specific Emergency Response Plan for the project 8. Turbine deliveries begin to the project site As previously stated, Vestas' Site Emergency Response Plans (ERP) should not be misinterpreted as guidance for setback distances for wind turbines from homes, roads, property lines or otherwise. Any specification of an emergency clearance area in an ERP should not be cited as support for any siting distance for wind turbines, as this does not apply to normal operating conditions. Rather, the language applies only in case of an incident. Vestas turbines are designed and tested according to recognized industry standards, including those issued by the lEO, and are independently certified. As in any emergency situation, good judgement and common sense should be used to establish a temporary
Vestas-American Wind Technology, Inc. 147 NW Everett Street, Portland, OR 97209, USA Tel: ti 503 327 2000. Fax: +1 503 327 2001, vestas.amencas@vestas.com , www.vestas.com
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Nordex USA. Inc. • 300 South Wacker Drive • Suite 1400 • Chicago • Illinois 60606 / USA
Ohio Power Siting Board 180 E. Broad Street Columbus, Ohio 43215 September 01, 2020 Re: Nordex Delta Safety Manual re Lightning Safety To Whom It May Concern, It has come to our attention that a Nordex manual is being referenced as a reason for the Ohio Power Siting Board to reconsider the setback distances required for wind turbines. We would like to clarify the purpose of this manual and our company's assessment of certain risks associated with operating wind turbines. Overall, Nordex's product manuals should not be misinterpreted as guidance for setback distances for wind turbines from homes, roads, and property lines or otherwise. Regarding lightning: We have become aware that there may be some misunderstanding around the safety guidance published in our N149 manual regarding lightning. The manual is intended to protect the safety of Delta turbine mechanics and technicians by advising personnel not to work on turbines during lightning conditions. More generally speaking, it is never advisable to stand near tall objects during lightning conditions. This is true whether the "object" is a tree, a house, a silo, a utility pole, or a wind turbine. When turbines are built, they are often the tallest structures in an area, and therefore, they are more likely than other lower structures in the area to receive a lightning strike. That said, turbines are also better suited than other structures to receive a lightning strike safely. Each wind turbine is a grounded system, designed to ensure that electricity produced by it or traveling through it does not escape its footprint. Though the turbine is equipped with a lighting protection system, this system is designed to protect the equipment, not personnel. Nordex prohibits workers from standing inside of a wind turbine or within the turbine footprint during a thunderstorm. Furthermore, it is generally not advisable to work or loiter outside in an open area during a thunderstorm, whether or not one is close to a wind turbine, and similarly, it is advisable to either stay indoors or stay away from tall structures during a thunderstorm. Regarding safe radius requirements for wind turbines under normal and emergency operating conditions: Nordes USA, Inc. 300 South Wacker Drive Suite 1400 Chicago, Illinois 60606 USA hone .4-1-312-386-4100 fax: +1-312-386-4101
nordexusa@lnordex-onhine.com www.nordex-online.com
President: Pablo Pulpeiro
Registered in Delaware N°3149241 United States of America
Board of Directors. José Luis Blanco (Chairman) Christoph Burkhard Pablo Pulpeiro
MONTCALM WIND PROJECT PROFILE LOCATION:
• MONTCALM WIND
Montcaim County, Michigan
TOTAL CAPACITY:
Up to 375 MW
NUMBER OF TURBINES:
Up to 75
ANTICIPATED START DATE OF COMMERCIAL OPERATION: Apex Clean Energy is exploring the feasibility of constructing Montcalm Wind, a wind energy project expected to generate up
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• Minimal environmental impacts I
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A Clean Economic Opportunity for Montcalm County Using an innovative, community-based lease that spreads some of the financial benefits from the project more broadly among landowners, Montcalm Wind will create jobs and generate an entirely new source of long-term revenue for local schools, government services, and property owners. The total direct financial impact to the community will be in the tens millions of dollars over the life of the project, with additional indirect economic benefits to the local economy. Landowners participating in the wind project will receive annual lease payments. These payments will continue over the projected 30-year lifespan of the wind farm, injecting millions of dollars into the local economy to support local merchants, contractors, equipment suppliers, auto dealers, and others. The power from Montcalm Wind will be delivered into the Michigan electrical grid, reducing the need to import electricity from outside markets.
Local Economic Benefits • Enough power for up to 89.800 U.S. homes (375 MW) • Hundreds of jobs and significant local spending during construction • Up to 15 full-time local jobs for operations and maintenance • Taxpayers protected against decommissioning costs • 30-plus years of annual revenue for county, local landowners, and local schools, totaling millions of dollars over the life of the project • Existing high-voltage power lines and highways would limit the need for new infrastructure
info,, MontcalmWind.com 1 (989)787-3029 1 MontcalmWlnd.com
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Subject: Wind Ordinance Follow-up Brian O'Shea <brian.osheaapexcleanenergy.com > *
Sun, May 16, 11:41 PM (6 days
to Wayne Watts
You are viewing an attached message. ISP Management Mail can't verify the authenticity of attached messages.
Good evening Wayne, Following up from our conversation, here is some additional information regarding turbine height, blade length, an ground clearance to help inform your conversations. I've also attached a few specific wind ordinances from parts the state that have seen wind development in the event they are helpful to review as you craft your ordinance. The include ordinances from Gratiot County, Isabella County, Huron County, and Pine River Township in Gratiot Count Also attached is a copy of the Michigan State University Extension Zoning Guide for Wind Energy and a publicatic Planning & Zoning that does a deep dive for both wind and solar energy. Both of these can be very helpful docum for you and your board members to review and both were also included in that Montcalm Wind resource binder
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provided to you. Now, on to the specific items you had questions about: Turbine Height
In general, restricting turbine height to 500 feet will increase the number of turbines required to generate a project's maximum output. For this reason, communities across the upper Midwest are revisiting or removing height restrictions to allow for the most advanced and efficient turbines to be installed at proposed wind proje A height limit allowing for taller turbines will allow a project to install 40-50% fewer turbines than with a 500-I limit, due to improvements in technology. Modern turbines with longer blades and larger capacity generators also quieter due to slower revolution of the blades.
The Federal Aviation Association (FAA), National Oceanic and Atmospheric Administration (NOAA), North American Aerospace Defense Command (NORAD), and the Department of Defense (DOD) all monitor and enf airspace restrictions. These agencies also monitor impacts to radar and microwave beam paths and may requi mitigation or avoidance of any such impacts. These federal agencies have extensive review processes in place. Because of the extensive regulation of airspace by specialized federal agencies, a tip height restriction is unnecessary to protect airspace. Your local setbacks will also dictate what size turbines are possible to be cite( your community. In short - taller turbines means fewer turbines, less sound and visual impacts, and fewer acr , taken out of agricultural production. For that reason, we recommend removing the height limit restriction.
Height of other Michigan wind projects: • The first wind farm built in the thumb has a tip height of 393 feet. The smallest operating wind farm in Michi has a tip height of 389ft.
Height of other Michigan wind projects: • The first wind farm built in the thumb has a tip height of 393 feet. The smallest operating wind farm in Michi has a tip height of 389ft.
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These turbines generated 1.5 MW per turbine. We would need 250 turbines of that size to generate 375 MW of capacity available in Montcalm County. • The first wind farm in Gratiot had a tip height of 462 feet. This was a 1.6MW turbine. • More recently, Pine River Wind and Gratiot Farms (right on the Montcalm Border) use a 2.5 MW turbine wit height of 483 feet. 150 turbines of this size would be necessary to generate 375 MW. • Our most recent project, Isabella Wind, used 136 turbines. Most of which had a tip height of 583ft (the remaining were 499 feet). These were 2.82 MW wind turbines. • For Montcalm Wind we would ideally use more advanced technology allowing for 5-6MW turbines. These v turbines range from 625-675 feet in total height. We would only need 75 5MW turbines to generate the plar capacity for the project. Blade Length
• Blades on the early Michigan wind farms, built in the Thumb, ranged from 125ff-1 50ff long. • The Gratiot Farms Project near Carson City uses blades that are about 200ff long. • Isabella Wind uses Blades that are 204ff long. • Tip Height/Total Height in an ordinance is defined as the distance from the ground to the tip of the blade at highest point (pointed at 12 o'clock).
Ground Clearance
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• After going back to review some of the ordinances above, several do include a 75ff ground clearance minimum. That does take a few specific turbine models out of contention, but in general a ground cIearanc level of 50ff is certainly appropriate and 75ff is still workable. The most recent wind farms built in Isabella at Gratiot Counties had a blade-to-ground clearance of between 80-100 feet.
A Note on Sound
As was mentioned by myself and one other gentleman during the last meeting, it is important for the sound Iangu in the ordinance to be specific regarding how measurements should be taken. Here are a few minor notes on sour for your consideration. The MSU Zoning Guide can also be helpful as a reference for this topic. • Sound level limit: There is no scientific basis for the ordinance's current proposed limit of 35 dBA at
residence. A report by Health Canada in 2014 found no adverse health effects up to a level of 46 dBA residence. A 2018 conditional recommendation by the World Health Organization (WHO) suggests a dBA at a residence (measured as an annual average), which is made not based on adverse health imr (WHO found no evidence of this) but rather potential annoyance impacts. It is worth noting that soul measured on a logarithmic scale, meaning that a 45 dBA sound is perceived to be half as loud as a 55 dBA sound. A 35 dBA sound limit would be half as loud as the level suggested as safe by the research The World Health Organization's 1999 Guidelines for Community Noise also recommended that "At night-time, outside sound levels about 1 meter from facades of living spaces should not exceed 45 dE Leq, so that people may sleep with bedroom windows open."
• Sound limit at a residence: It is better to have a reasonable fixed limit like 45 dBA measured as the
loudest hour [Leq-1 hour] or loudest 10-minute period [Leq 10 min] at a non-participating residence. This would provide the necessary protection for the public based on peer-reviewed science and recommendations. Sound limits are meant to regulate noise where people reside, as opposed to sou at the edge of an open field. If a property line sound limit is deemed necessary, 50 dBA would be mo
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• Sound level limit: There is no scientific basis for the ordinance's current proposed limit of 35 dBA at z
residence. A report by Health Canada in 2014 found no adverse health effects up to a level of 46 dBA residence. A 2018 conditional recommendation by the World Health Organization (WHO) suggests a dBA at a residence (measured as an annual average), which is made not based on adverse health im (WHO found no evidence of this) but rather potential annoyance impacts. It is worth noting that sour measured on a logarithmic scale, meaning that a 45 dBA sound is perceived to be half as loud as a 55 dBA sound. A 35 dBA sound limit would be half as loud as the level suggested as safe by the research The World Health Organization's 1999 Guidelines for Community Noise also recommended that "At night-time, outside sound levels about 1 meter from facades of living spaces should not exceed 45 dE Leq, so that people may sleep with bedroom windows open."
• Sound limit at a residence: It is better to have a reasonable fixed limit like 45 cIBA measured as the
loudest hour [Leq-1 hour] or loudest 10-minute period [Leq 10 min] at a non-participating residence. This would provide the necessary protection for the public based on peer-reviewed science and recommendations. Sound limits are meant to regulate noise where people reside, as opposed to sou at the edge of an open field. If a property line sound limit is deemed necessary, 50 dBA would be mo appropriate, as was done in Isabella County.
• Sound measurement time period: The most-regarded recommendations on sound and health, from
WHO to Health Canada, use a short-term average (Leq). A sound limit of 45 dbA from a non-participa residence could be an appropriate design standard, provided it is measured in the same way that all the sound science, including the WHO, suggests - as an average. The WHO guidance uses essentially year-long average. That obviously isn't practical for compliance purposes so we think a one hour aver [Leq-1 hour] makes sense. This means the loudest possible hour of operations would have to have ar average sound level that was below the decibel limit. Some states, such as New York, use an 8-hour average. Other jurisdictions use a 10-minute Leq. Any of these options are workable. A 45 db limit at residence will ensure a level of about 30db inside the house. A residence, even with the windows op provides insulation from about 15 db, and closer to 20-db with the windows closed according to the EPA.
I hope this information is helpful to you and the board in reviewing your draft ordinance and incorporating feedbacl from the public and other stakeholders. If you have any additional questions or would like to visit on any of these topics further, I will be in Michigan this week and would be happy to connect on Tuesday or Wednesday if you are interested and available. Just let me know if you would like to connect. Thanks you, BRIAN O'SHEA Public Engagement Manager Apex Clean Energy, Inc. 8665 Hudson Blvd North, Suite 110 Lake Elmo, MN 55042 4'fl3.11 I ,fl Q
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average sound level that was below the decibel limit. Some states, such as New York, use an 8-hour average. Other jurisdictions use a 10-minute Leq. Any of these options are workable. A 45 db limit at residence will ensure a level of about 30db inside the house. A residence, even with the windows op provides insulation from about 15 db, and closer to 20-db with the windows closed according to the EPA.
I hope this information is helpful to you and the board in reviewing your draft ordinance and incorporating feedbacl from the public and other stakeholders. If you have any additional questions or would like to visit on any of these topics further, I will be in Michigan this week and would be happy to connect on Tuesday or Wednesday if you are interested and available. Just let me know if you would like to connect. Thanks you, BRIAN O'SHEA
Public Engagement Manager Apex Clean Energy, Inc. 8665 Hudson Blvd North, Suite 110 Lake Elmo, MN 55042 office: 612-260-6611 I cell: 952-393-29861 fax: 612-315-1519 brian.osheapexcleanenergyQ I www.apexcleanenergyQffi
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CL&'N ENERI3Y
Safety• lntegrity• Entrepreneurship• Sustainability• Professionalism This transmittal may be privileged or confidential. If you are not the intended recipient, please immediately notify us by e-mail and do not cc re-transmit.
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6 Attachments
ISABELLA COUNTY ZONING ORDINANCE --
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Isabella County
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Gratiot County Wi.
Huron County Wi..
Sample Zoning for Wind Energy systerns
Pine River Twp Z...
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MSU Extension
Planning Zoning..
ISABELLA COUNTY ZONING ORDINANCE
EFFECTIVE DATE OF ORDINANCE: FEBRUARY 15, 1939 REFORMATTED (07-10 Eff. January 28, 2008) THIS DOCUMENT CONTAINS ALL AMENDMENTS TO ORDINANCE THROUGH 2018
ZONING ORDINANCE
ISABELLA COUNTY
potential safety hazard, the owner shall take expeditious action to correct the situation. 00. Solid Waste Disposal Areas
Solid waste disposal areas shall be located in Ag-2 and I-i Districts. These uses shall meet all of the requirements of the Solid Waste Management Act, Act 641 of 1978 and the Isabella County Solid Waste Management Plan. PP. State Licensed Residential Facilities
State Licensed Residential Facilities as defined an properly licensed by Act 218 P.A. of 1979 and Act 116 of 1973 as amended, which provide resident services for seven or more persons under 24 hour supervision shall only be permitted in AG-i, AG-2 and AG3 Districts. (98-01 Eff. November 28, 1998) QQ. Utility Grid Wind Energy Conversion Systems (WECS), On Site WECS over 66 feet in height, and Anemometer Towers over 66 feet in height.
(17-05 Eff. July 5, 2017)
Such facilities are permitted by special use in the AG-i, AG-2 and AG-3 Districts. 2.
In addition to the applicable information required by Article 11, the application shall include: a.
The estimated construction timeline.
b.
Location of overhead electrical transmission or distribution lines.
C.
Location and height of all buildings, structures, towers, security fencing and other above ground structures associated with the WECS.
d.
Location and height of all adjacent buildings, structures, and above ground utilities located within six hundred (600) feet of the proposed WECS or Anemometer Tower. Specific distances to other on-site buildings, structures, and utilities shall also be provided.
e.
Existing and proposed setbacks of all structures located on the property. Sketch elevation of the premises accurately depicting the proposed WECS and its relationship to all structures within six hundred (600) feet. For wind farms in which case numerous WECS of similar height are planned, sketches are necessary only at borders of
ARTICLE 12
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ZONING ORDINANCE
proposed project and when adjacent to other established structures within six hundred (600) feet. g.
Access road to the WECS and Anemometer Tower with detail on dimensions, composition, and maintenance.
h.
Planned security measures to prevent unauthorized trespass and access. A copy of the manufacturer's installation instructions shall be provided. Included as part of or as an attachment to the installation instructions shall be standard drawings of the structural components of the wind energy conversion system and support structures, including base and footings provided along with engineering data and calculations to demonstrate compliance with the structural design provisions of the County Building Code; drawings and engineering calculations shall be certified by a registered engineer licensed to practice in the State of Michigan. A detailed description of the complaint resolution process developed by the applicant to resolve complaints from nearby residents concerning the construction or operation of the WECS. The process shall not preclude the County from acting on the complaint. During construction the applicant shall maintain and make available to nearby residents a telephone number where the project representative can be reached during normal business hours. An analysis on potential shadow flicker at occupied structures. The analysis shall identify the locations of shadow flicker that may be caused by the project and the expected durations of the flicker at these locations from sunrise to sunset over the course of a year. Wind Energy Conservation Systems shall be placed such that shadow flicker to any occupied buildings occurs no more than 30 hours per year. The WECS application shall contain a Decommissioning Plan to ensure it is properly decommissioned upon the end of project life, inoperability of individual WECS turbine, or facility abandonment. Decommissioning shall include the removal of all structures, fencing and equipment, foundations, footings and debris to a depth of four (4) feet, as well as restoration of the soil and vegetation. The decommissioning including restoration shall be completed within one (1) year of the end of project life, inoperability of individual WECS turbine or facility abandonment. Extensions may be granted upon written request to the Planning Commission prior to expiration
ARTICLE 12
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ZONING ORDINANCE
of the one (1) year decommissioning period. The Decommissioning Plan shall state (a) how the facility will be decommissioned, (b) the Professional Engineer's estimated cost of decommissioning, (c) the financial resources to be used to accomplish decommissioning, and (d) the escrow agent with which the resources shall be deposited. The Decommissioning Plan shall also include an agreement between the applicant and the County specifying that: 1. The financial resources for decommissioning shall be in the form of a surety bond or letter of credit, which shall be deposited in an escrow account with an escrow agent acceptable to the County. 2, The County shall have access to the escrow account funds for the express purpose of completing the decommissioning, if decommissioning is not completed by the applicant within one (1) year of the end of project life, inoperability of individual WECS turbine, or facility abandonment, or upon expiration of any extension granted by the Planning Commission. Escrow funds may be used for administrative fees and costs associated with decommissioning. 3. The County is granted the right of entry onto the site, pursuant to reasonable notice, to effect or complete decommissioning as necessary. 4. The County is also granted the right to seek and obtain injunctive relief to effect or complete decommissioning, as well as the right to collect reimbursement from applicant or applicant's successor for decommissioning costs in excess of the amount deposited in escrow and to file a lien against any real estate owned by applicant or applicant's successor, or in which they have an interest, for the amount of the excess costs, and to take all steps allowed by law to enforce the lien. 3.
WECS shall be exempt from the height requirements of this ordinance, subject to the provisions of Article 12 and compliance with all State and Federal regulations.
4.
WECS and Anemometer Towers shall be setback from non-participating property lines one (1) foot for every one (1) foot of tower height. This requirement may be modified by the planning commission if sufficient information is provided to reduce said setback.
5.
WECS and Anemometer Towers shall be set back from the nearest public road a distance no less than 400 feet or 1.5 times the tower height,
ARTICLE 12
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ZONING ORDINANCE
whichever is greater, determined at the nearest boundary of the underlying right-of-way for such public road. 6.
WECS and Anemometer Towers shall be set back from the nearest railroad or rail trail a distance no less than 400 feet or 1.5 times the tower height, whichever is greater, determined at the nearest boundary of the underlying right-of-way for such railroad or rail trail.
7.
WECS and Anemometer Towers shall be set back from the nearest residence, school, hospital, church or public library, or any other occupied buildings a distance no less than the greater of (a) two (2) times the tower height, or (b) one thousand (1,000) feet.
8.
WECS and Anemometer Towers shall not be located within thirty (30) feet of an above ground utility line.
9.
The minimum vertical blade tip clearance from grade shall be 75 feet for a WECS employing a horizontal axis rotor.
10.
WECS and Anemometer Towers shall comply with all applicable state construction and electrical codes and local building permit requirements. WECS and Anemometer Towers shall comply with Federal Aviation Administration requirements, the Michigan Airport Zoning Act (PA 23 of 1950), the Michigan Tall Structures Act (PA 259 of 1959) and any local jurisdiction airport overlay zone regulations.
11.
WECS shall comply with all applicable parts of the Michigan Natural Resources and Environmental Protection Act (Public Act 451 of 1994, as amended).
12.
WECS shall have automatic braking, governing, or a feathering system to prevent uncontrolled rotation or over speeding.
13.
WECS and Anemometer Towers shall not have affixed or attached any lights, reflectors, flashers or any other illumination, except for illumination devices required by Federal regulations. All required lighting shall be shielded to the extent possible to reduce glare and visibility from the ground.
14.
WECS shall be of monopole design and shall not have guy wires.
15.
If the Anemometer Tower is supported by guy wires, the wires shall be clearly visible to a height of at least six (6) feet above the guy wire anchors.
ARTICLE 12
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SPECIAL LAND USES
ZONING ORDINANCE
ISABELLA COUNTY
16.
Noise emanating from the WECS shall not exceed 50 dB(A) (not calculated as an average) at a non-participating property line. This sound pressure level may be exceeded during short term events such as utility outages and/or severe wind storms. If the ambient sound pressure level exceeds 50 dB(A), the standard shall be ambient dB(A) plus 5 dB(A).
17.
Within 12 months of the project completion, the applicant shall submit to the Zoning Administrator the following: a.
As-built site plan drawings of the constructed WECS, in the formats of Adobe PDF, or similar as a hard copy and as saved on electronic media, including location data (x,y coordinates) of site features, inclusive of turbines, access roads, junction boxes, the underground power collection system, and any borings underneath roads or drains. The applicant shall also submit all information listed above in GIS and CAD, or similar formats. A summary of all data collected by Anemometer Towers associated with the project. (18-02 Eff. March 19, 2018)
18.
Color and surface treatment of the WECS and supporting structures shall minimize disruption of the natural characteristics of the site. No lettering, company insignia, advertising or graphics shall be on any part of the tower, hub or blades of the WECS.
19.
Each WECS shall have one sign posted at the base of the tower containing the following information: a.
Warning high voltage.
b.
Manufacturer's name.
C.
Emergency phone number.
d.
Emergency shutdown procedures.
20.
Signage placed at the road access shall be used to warn visitors about the potential danger of falling ice.
21.
No WECS and Anemometer Towers shall be installed in any location where its proximity with existing fixed broadcast, transmission, or reception antennas for television, radio, or wireless phone or other personal communications systems would produce electromagnetic interference with signal transmission or reception.
ARTICLE 12
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ZONING ORDINANCE
22.
No WECS shall be interconnected with a local electrical utility company until the utility company has reviewed and commented upon it. The interconnection of the WECS with the utility company shall adhere to the State Electrical Code as adopted by the County.
23.
The on-site electrical collection lines connecting the WECS to the public utility electricity distribution system shall be located underground where applicable. The interconnection of the WECS with the utility company shall adhere to the State Electrical Code.
24.
A change in location of a WECS and/or Anemometer Tower shall be approved by the Zoning Administrator provided the change in location is not more than one hundred (100) feet from the approved location and provided that the amended plans contain all information required in this Ordinance and the alternative location satisfies the conditions set forth in this section of the Ordinance.
25.
An approved special use permit for a utility grid WECS project shall expire if construction of the WECS has not commenced within twenty-four (24) months from the date of issuance. An applicant may request an extension of the approval of the special use permit by letter addressed to the planning commission. The planning commission may grant an extension of up to eighteen (18) months for the construction to commence provided the written request to extend the special use permit is submitted prior to the expiration of the special use permit and provided that the proposed use continues to satisfy the applicable standards set forth within the ordinance.
26.
An approved special use permit for a utility grid WECS and/or Anemometer Tower shall be deemed to constitute approval to operate and use the utility grid WECS and/or Anemometer Tower twenty four (24) hours per day.
27.
The County hereby reserves the right upon issuing any WECS or Anemometer Tower special land use permit to inspect the premises on which the WECS is located. If a WECS is not maintained in operational condition and poses a potential safety hazard, the owner shall take expeditious action to correct the situation.
28.
A post construction study documenting sound pressure level measurements shall be provided to the Zoning Administrator by a third party qualified professional, selected by the Planning Commission and at the expense of the applicant and/or owner, within 12 months from the commencement of operation of the project. The post construction study shall be performed as established by the Community Development Department prior to the study. (18-02 Eff. March 19, 2018)
ARTICLE 12
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SPECIAL LAND USES
Chapter 1 SECTION 1.25 WIND ENERGY FACILITY SPECIAL USE DEFINITIONS Alternative Energy - Renewable energy sources, such as wind, flowing water, solar energy and biomass, which create less environmental damage and pollution than fossil fuels, and offer an alternative to nonrenewable resources. Ambient - Ambient is defined as the sound pressure level exceeded 90% of the time or L90. ANSI - American National Standards Institute. County Commissioners - The Gratiot County Board of Commissioners, Gratiot County Michigan. County Zoned Townships - Shall mean Elba. Hamilton, Lafayette, Newark, North Star & Sumner. db(A) - The sound pressure level in decibels. Refers to the "a'S weighted scale defined by ANSI. A method for weighting the frequency spectrum to mimic the human car. Decibel - The unit of measure used to express the magnitude of sound pressure and sound intensity. FAA - The Federal Aviation Administration. Hub Height - When referring to a Wind Energy System. the distance measured from ground level to the center of the turbine hub. Hub height is defined as the height from the Ground Level (GL) at which the hub of the windmill or the hub of the propeller blades of the wind energy generator is situated.
IEC - International Electro Technical Commission. The IEC is the leading global organization that prepares and publishes international standards for all electrical. electronic and related technologies. ISO - International Organization for Standardization. ISO is a network of the national standards institutes of 156 countries. Met Tower - A meteorological tower used for the measurement of wind speed. Michigan Tall Structure Act (M.C.L. 259.481 and following) - Governs the height of structures in proximity to airport related uses and is included as a standard in the Article by reference.
Habitable Structure - Any structure usable for living or business purposes, which includes but is not limited to working, sleeping, eating, cooking, recreation, office, office storage, or any combination thereof. An area used only for storage incidental to a residential use, is not included in this definition. Non-Participating Parcel - Any parcel of property in the County not within the Wind Energy Overlay District. On Site Use Wind Energy Systems - This system is intended to primarily serve the needs of the consumer, and is considered an accessory building. Planning Commission - The Gratiot County Planning Commission. Rotor - An element of a wind energy system that acts as a multi-bladed airfoil assembly, thereby extracting through rotation, kinetic energy directly from the wind. SCADA Tower - A freestanding tower containing instrumentation such as anemometers that is designed to provide present moment wind data for use by the supervisory control and data acquisition (SCADA) system. Shadow Flicker - Alternating changes in light intensity caused by the moving blade of a wind energy system casting shadows on the ground and stationary objects, such as a window in a dwelling. Sound Pressure - Average rate at which sound energy is transmitted through a unit area in a specified direction. The pressure of the sound measured at a receiver. Sound Pressure Level - The sound pressure mapped to a logarithmic scale and reported in decibels (dB). Tip Height - When referring to a Wind Energy System, the distance measured from ground level to the furthest vertical extension of the rotor. Utility Grid Wind Energy Systems - This system is designed and built to provide electricity to the electric utility grid. Wind Energy Conversion Facility, (WECF) or Wind Energy Facility - An electricity generating facility consisting of one or more wind turbines under common ownership or operation control, and includes substations, MET Towers, cables/wires and other buildings accessory to such facility, whose main purpose is to supply electricity to offsite customers. Wind Energy Facility Site Permit - A permit issued upon compliance with the standards enunciated in this Section
Wind Energy Overlay District - Districts created by the Gratiot County Board of Commissioners upon receiving a recommendation from the Planning Commission, by identifying specific areas within the County best situated for development of wind energy facilities. This District will be defined by the Gratiot County Wind Energy Overlay District Map, as approved by the Gratiot County Planning Commission.
Wind Energy Overlay District Map - This will be a Map showing the areas that are considered to be acceptable siting locations for Wind Energy Facilities. This overlay Map will be created and approved by the Gratiot County Planning Commission. This Map will also include exclusionary zones that are considered to be unsuitable for location of these facilities. Wind Energy System - A wind energy conversion system which converts wind energy into electricity through the use of a wind turbine generator and includes the turbine, blades, and tower as well as related electrical equipment. This does not include wiring to connect the wind energy system to the grid. Wind Site Assessment - An assessment to determine the wind speeds at a specific site and the feasibility of using that site for construction of a wind energy system.
Chapter 14 SECTION 14.4 SITE PLAN REVIEW D. Wind Energy Facility Special Use Site Plan Review Required 1. Wind Energy Conversion Facilities shall not be located, constructed, erected, altered, or used without first obtaining a Wind Energy Facilities Permit pursuant to this Section. The wind Energy Facilities Site Plan must be reviewed and approved by the Planning Commission pursuant to standards contained herein. An applicant proposing a Wind Energy Facility must submit the following site plan materials: a. Company contact information (telephone numbers and e-mail addresses), including name of company, name of project, key company contacts with titles. EIN (Employer Identification Number) b. A narrative describing the proposed Wind Energy Facility, including an overview of the project c. Site plan (GIS shape file overlay, electronic file and paper copy) of the property showing existing and proposed features such as buildings, structures, roads (right of ways), applicable utility easements, county drains, land use, zoning district, ownership of property, location of proposed turbine towers (with required setbacks, exclusion zones and nonparticipating properties), underground and overhead wiring (including depth underground), access roads (including width), substations and accessory structures d. Details or drawings shall show features in the design of a typical tower and its base, that upon removal of said tower will allow restoration of the soil at the site to a depth of 4 feet pursuant to Chapter 16 Section 7. e. Anticipated construction date and anticipated completion date f. The lessor must acknowledge the fact in writing that the decommissioning process poses some risk of the concrete bases remaining in place, if the responsible party (lessee) was unable to properly remove the bases as required in this ordinance. This acknowledgement is to be submitted with the application package and can be in the form of the actual lease language that has been signed by the lessor or an "Acknowledgement Letter" that documents this understanding and has been signed by the lessor.
g. The applicant shall post a performance bond or equivalent financial instrument for decommissioning. The bond shall be in favor of Gratiot County and may be provided jointly as a single instrument for multiple Townships within a single wind farm, provided that any such single instrument shall be an amount of at least $1 million and shall contain a replenishment obligation.
2. Application Material. The following shall be included and/or be utilized as
standards when preparing, submitting and reviewing an application for a Wind Energy Facility. a. Applicant shall show evidence of compliance with applicable statutes and County ordinances including, but not limited to: i. Part 31 Water Resources Protection (M. C.L324.3101 et seq.), ii. Part 91 Soil Erosion and Sedimentation Control (M. C.L. 324.9101 et seq.), and the corresponding County ordinance. iii. Part 301 inland Lakes and Streams (M.C.L 324.30101 et seq.), iv. Part 303 Wetlands (M.C.L. 324.30301 et seq.), v. All other applicable laws and rules in force at the time of Application
b.
Visual Appearance, Lighting, Power lines. The applicant shall use measures to reduce the visual impact of wind turbines to the extent possible, utilizing the following:
i. Wind turbines shall be mounted on tubular towers, painted a nonreflective, non-obtrusive color. The appearance of turbines, towers and buildings shall be maintained throughout the life of the wind energy facility (i.e., condition of paint, signs, landscaping, etc). ii. Wind turbines and meteorological towers shall not be artificially lighted, except to the extent required by the FAA or other applicable authority, or otherwise necessary for the reasonable safety and security thereof. iii. Wind turbines shall not be used for displaying any advertising except for reasonable identification of the manufacturer or operator of the Wind Energy Facility. iv. The electrical collection system shall be placed underground at a depth designed to accommodate the existing agricultural land use to the maximum extent practicable. The collection system may be placed
overhead from substations to points of interconnection to the electric grid or in other areas as necessary. 3. Setbacks, Separation and Security. The following setbacks and separation requirements shall apply to all wind turbines within a Wind Energy Facility.
a. Occupied Buildings: Each wind turbine shall be set back from the nearest residence, school, hospital, church or public library, or any other occupied buildings a distance no less than the greater of (a) two (2) times its Hub Height, or (b) one thousand (1,000) feet. b. Shadow flicker minimization: Wind turbines shall be placed such that shadow flicker to any occupied buildings occurs no more than 30 hours per year. c. Property line setbacks: Except a set forth in this section, wind turbins shall not be subject to a property line setback. Wind turbines and access roads shall be located so as to minimize the disruption to agricultural activity and, therefore, the location of towers and access routes is encouraged along internal property lines. Wind turbines shall not be located within 1.5 times Hub Height of the property line of a NonParticipating Parcel. d. Boundaries with non participating parcels: Wind turbins shall not be located within 1.5 times Hub Height of the property line of a nonparticipating parcel. e. Public roads: Each wind turbine shall be set back from the nearest public road a distance no less than 400 feet or 1.5 times its Hub Height, whichever is greater, determined at the nearest boundary of the underlying right-of-way for such public road. f. Railroads & "Rails to Trails": Each wind turbine shall be set back from the nearest Railroad or "Rails to Trails" a distance no less than 400 feet or 1.5 times its Hub Height, whichever is greater, determined at the nearest boundary of the underlying right-of-way for such Railroad & Rails to Trails". 4. Compliance with Wind Energy Site Permit: Following the completion of constructions, the applicant shall certify that all construction is completed pursuant to the Wind Energy Site Permit. (GIS overlay)
5. Wind Turbine/Tower Height: The applicant shall demonstrate compliance with the Michigan Tall Structure Act (MCL 259.481 and following), FAA guidelines, and local airport zoning as part of the approval process. 6. Noise: Wind Energy Facilities shall not exceed 55 db(A) at the habitable structure closest to the wind energy system. This sound pressure level may be exceeded during short-term events such as utility outages and/or severe wind storms. If the ambient sound pressure level exceeds 55 dB(A), the standard shall be ambient dB(A) plus 5 dB(A). 7. Minimum Ground Clearance: The blade tip of any Wind turbine shall, at its lowest point, have ground clearance of not less than seventy five (75) feet. 8. Signal Interference: No large scale Wind Energy Facility shall be installed in any location where its proximity with existing fixed broadcast, retransmission, or reception antennas for television, radio, or wireless phone or other personal communication systems would produce electromagnetic interference with signal transmission or reception. 9. Safety a. All collection system wiring shall comply with all applicable safety and stray voltage standards. b. Wind turbine towers shall not be climbable on the exterior. c. All access doors to wind turbine towers and electrical equipment shall be lockable. d. Appropriate warning signs shall be placed on wind turbine towers, electrical equipment, and Wind Energy Facility entrances. e. Appropriate signage for emergency contact information shall be located at the wind turbine tower.
10. Transportation: Submit a copy of a proposed transportation plan to be used by construction and delivery vehicles. Approval of appropriate authorities required prior to construction; 2.1 Application Fee. An applicant for a Wind Energy Facility shall remit a fee in the amount specified in the approved schedule adopted by resolution of the County Board of Commissioners. This schedule shall be based on the cost to the County of the review, which may be adjusted from time to time.
Chapter 16 SECTION 16.7 SPECIFIC LAND USE STANDARDS QQ. Wind Energy Facility 1. Wind Energy Facility Special Use Purpose and Intent The purpose of this Article is to provide a regulatory scheme for the designation of properties suitable for the location, construction and operation of Wind Energy Conversion Facilities (Wind Energy Facilities) in Gratiot County, in an effort to protect the health, welfare, safety, and quality of life of the general public, and to ensure compatible land uses in the vicinity of the areas affected by wind energy facilities. A Wind Energy Facility Overlay District shall be considered a map amendment, wherein lands so classified shall become pre-qualified for a Wind Energy Facility with construction of such facility approved pursuant to Chapter 14 Wind Energy Facility Site Plan review portion of the Gratiot County Zoning Ordinance. It is further recognized that a Wind Energy Facility Overlay District is intended as an agricultural preservation measure. This shall be applicable for wind turbines with a total height greater than 200 feet.
2. Regulatory Framework 2.1 Zomn2 A Wind Energy Facility may be constructed on land that is within a Wind Energy Facility Overlay District on the official zoning map for the County, subject to provisions and standards of the Zoning Ordinance, Wind Energy Facility Site Plan Review and other appropriate Approvals. 2.2 Principal or Accessory Use A Wind Energy Facility and related accessory uses may be considered either principal or accessory uses. A different existing use or an existing structure on the same parcel shall not preclude the installation of a Wind Energy Facility or a part of such facility on such parcel. Wind Energy Facilities that are constructed and installed in accordance with the provisions of this Section shall not be
deemed to constitute the expansion of a non-conforming use or structure. Wind Energy Facilities shall be reviewed and approved pursuant to the Zoning Ordinance. 2.3 Overlay District After designation as a Wind Energy Overlay District, new uses within the "overlay" area shall be limited to those uses identified within the applicable zoning district and Wind Energy Facilities, subject to any additional standards of this Section.
3. APPLICABILITY The requirements in this ordinance shall apply to all Wind Energy Conversion Facilities, which shall be permitted as a special use in a Wind Energy Facility's Overlay District. Wind Energy Facilities Site Plan Review standards shall be used when reviewing any application for a wind energy facility.
4. CERTIFICATION Any approval for Wind Energy Facilities shall require the applicant to provide a postconstruction certification that the project complies with applicable codes and industry practices. Applicant shall provide as-built GIS shape file, electronic file, and paper site plan.
5. INSPECTIONS The applicant's maintenance and inspection records shall be generated annually and are subject to audit by the County. Inspection Reports shall contain current contact information and be updated whenever the contact information changes.
6. DECOMMISSIONING The applicant shall post a performance bond or equivalent financial instrument for decommissioning. The bond shall be in favor of Gratiot County and may be provided jointly as a single instrument for multiple Townships within a single wind farm, provided that any such single instrument shall be in an amount of at least $1 million and shall contain a replenishment obligation The applicant shall submit a plan describing the intended disposition of the alternative energy project at the end of its useful life and shall describe any agreement with the landowner regarding equipment removal upon termination of the lease. Within 12 months of any tower or turbine not operating, the applicant/owner must submit a plan to the Township concerning the status of the wind power project and steps that shall be taken to either decommission the tower or turbine, or to achieve renewed Commercial Operation. Any tower/turbine left unused or inoperable for over 24 months would be
deemed to be disposed of by developer/applicant. The land must be returned to its original state. Concrete bases will be removed four feet below ground level with appropriate drainage and filled with like soil that was removed.
Wind Energy Facility Overlay Zoning Revised Ordinance J5_PH Adopted November 10, 2015; Eff. November 27, 2015 ADOPTED 81 HURON C'ouvi'y Bow Of coMMissioNERs, TUFSDA, November 10, 2015 iN Opoj.v,r,'ce FoRJ. No. 15-154, ZA 2015 -04 H1TH ElK DATE November 27, 2015
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ARTICLE X. HURONCOUNTY WINDENERGY CONVERSION FACILITY OVERLAY ZONING ORDINANCE SECTION 1. PURPOSE AND INTENT
The purpose of this Article is to provide a regulatory scheme for the designation of properties suitable for the location, construction and operation of Wind Energy Conversion Facilities (Wind Energy Facilities) in Huron County; to meet the needs of the County's citizens for energy and other natural resources, places of safe residence, recreation, industry, trade, service, tourism, and other uses of land, to ensure that use of the land is situated in appropriate locations and relationships, to facilitate adequate and efficient provision for water, energy, recreation, including habitat for wildlife, and other public service and facility requirements; and to promote and protect the health, welfare, safety, and quality of life of the general public, and to ensure compatible land uses in the vicinity of the areas affected by wind energy facilities. A 'Wind Energy Facility Overlay District shall be considered a map amendment, wherein lands so classified shall become pre-qualified for a 'Wind Energy Facility with construction of such facility approved pursuant to Section 5 Wind Energy Facility Site Plan Review, of this Article. It is further recognized that a Wind Energy Facility Overlay District is intended as an agricultural preservation measure. SECTION 2.DEFINITIONS
As used in this Article, the following terms shall have the meaning indicated: Airport Zoning Ordinance shall mean the Huron County Memorial Airport Zoning Ordinance. Ambient Sound shall mean the all-encompassing sound associated with a given environment, being usually a composite of sound from many sources near and far, as defined by ANSI S 12.9 Part 3. A-weighted sound level shall mean the sound pressure level in decibels as measured on a sound level
meter using the A-weighting network, a method for weighting the frequency spectrum to mimic the human ear. Expressed as dB(A) or dBA. ANSI shall mean the American National Standards Institute. The current revision of each referenced standard shall be used. ASTM shall mean the American Society for Testing and Materials. Background Sound shall mean the all-encompassing sound associated with a given environment
without contribution from the source or sources of interest, as defined by ANSI S 12.9 Part 3. Board of Commissioners shall mean the Huron County Board of Commissioners. Commission shall mean the Huron County Planning Commission. County (County Zoned Township) shall mean the County of Huron. Page 1of 16
Wind Energy Facility Overlay Zoning Revised Ordinance V5_PH Adopted November 10, 2015; Eff. November 27, 2015
Continuous Background Sound shall mean background sound measured during a measurement period, after excluding the contribution of transient background sounds, as defined by ANSI S 12.9 Part 3. Decibel: see Sound Pressure Level and Sound Power Level Downwind shall mean a position where the direction of the wind vector is within an angle of ±45° of the direction connecting the center of the sound source and the center of the specified receiver area, as defined by ANSI S12.18. End of Useful Life shall mean the Wind Energy Conversion Facility, or a portion thereof, such as one or more individual wind turbines, that have not produced electrical energy for twelve (12) consecutive months. Equivalent A-weighted Continuous Sound Level shall mean the level of a steady sound which, in a stated time period and at a stated location, has the same A-weighted sound energy as the time varying sound, denoted as L A, and expressed as dBA. FAA shall mean the Federal Aviation Administration. FERC means the Federal Energy Regulatory Commission. Frequency shall mean the number of oscillations or cycles per unit of time, expressed as Hertz (Hz). Hertz means the frequency of sound expressed by cycles per second. Hub Height shall mean, when referring to a Wind Turbine, the distance measured from ground level to the center of the turbine hub. IEC means the International Electrotechnical Commission. The current revision of each referenced standard shall be used. ISO means the International Organization for Standardization. The current revision of each referenced standard shall be used. INCE means the Institute of Noise Control Engineering. Inhabited means to live or reside in. Inhabited Structure means a structure designed for human occupancy and provides complete independent living facilities for one or more persons, including permanent provisions for living, sleeping, eating, cooking and sanitation. MET Tower shall mean a meteorological tower used for the measurement of wind speed. Michigan Tall Structure Act (Act 259 of 1959) shall govern the height of structures in proximity to airport related uses and is included as a standard in this Article by reference. NERC means the North American Electric Reliability Corporation. Page 2 of 16
Wind Energy Facility Overlay Zoning Revised Ordinance V5_FH Adopted November 10,2015; Eff. November 27, 2015
Noise Sensitive Facility means an inhabited structure, school, hospital, church, public library, or other area designated by the Planning Commission. Non-participating parcel means a parcel of real property which is not under lease or other property agreement with a Wind Energy Conversion Facility (WECF) owner/operator. Octave Band shall mean the frequency interval where the upper frequency is twice the lower frequency. One-Third Octave Band shall mean the frequency interval where the upper frequency is the lower frequency times the cube root of two. Participating parcel means a parcel of real property which is under lease or other property agreement with a Wind Energy Conversion Facility (WECF) owner/operator. Rotor means an element of a wind energy system that acts as a multi-bladed airfoil assembly, thereby extracting through rotation, kinetic energy directly from the wind. SCADA shall mean supervisory control and data acquisition, a computer system for gathering and analyzing real time data. Shadow Flicker shall mean alternating changes in light intensity caused by the moving blade of a wind energy system casting shadows on the ground and stationary objects, such as but not limited to a window at a dwelling. Sound Power shall mean the rate per unit time at which sound energy is radiated, expressed as watts (W). Sound Power Level shall mean ten times the logarithm to the base 10, of the ratio of a given sound power to the reference sound power of 1 picowatt, expressed as decibels (dB). Sound Pressure shall mean the difference at a given point between the pressure produced by sound energy and the atmospheric pressure, expressed as pascals (Pa). Sound Pressure Level shall mean twenty times the logarithm to the base 10, of the ratio of the rootmean-square sound pressure to the reference pressure of twenty micropascels, expressed as decibels (dB). Note that, unless expressed with reference to a specific weighing network (such as dBA), the unit dB shall refer to an un-weighted measurement. Tip Height means the distance measured from ground level to the furthest vertical extension of the rotor and blade. Transient Background Sound shall mean background sound associated with one or more sound events which occur infrequently during the basic measurement period, a measurement interval with or without the source operating, as defined by ANSI S 12.9 Part 3. Wind Energy Conversion Facility (WECF) or Wind Energy Facility shall mean an electricity generating facility consisting of one or more wind turbines under common ownership or operation control, and includes substations, MET Towers, cables/wires and other buildings accessory Page 3 of 26
Wind Energy Facility Overlay Zoning Revised Ordinance V5 PH Adopted November 10, 2015; Eff. November 27, 2015
to such facility, located on private land which is under lease or other property agreement with a WECF owner/operator, whose main purpose is to supply electricity to off-site customers(s). It includes substations, MET towers, cables and wires and other buildings accessory to such facility. Wind Energy Conversion Facility accessory structures shall comply with the requirements of the Agricultural (AGR) zoning district in addition to the area, height, bulk and placement provisions as required by Article IX, Schedule of Regulations, of this Ordinance. Wind Energy Facility Site Permit is a zoning permit issued upon compliance with standards of this Article. Wind Energy Facility Site Plan Review is the process used to review a proposed Wind Energy Facility. Wind Energy Overlay Districts are districts created by the Huron County Board of Commissioners, upon receiving a recommendation of the Planning Commission, by identifying specific areas within the Agricultural District best situated for development of wind energy facilities and adopting specific provisions that apply in that area in addition to other provisions of the zoning ordinance. Wind Turbine shall mean a wind energy conversion system which converts wind energy into electricity through the use of a wind turbine generator, and includes the turbine, blade, tower, base and pad transformer, if any; provided that such a system shall only be a wind turbine for purposes of this Article if it both has a total height greater than 150 feet and nameplate capacity of greater than 100 kilowatts. SECTION 3.REGULATORYFRAMEWORK 3.1 Zoning A Wind Energy Facility may be constructed on land that is zoned Agricultural and within an area designated as a Wind Energy Facility Overlay District on the official zoning map for the County, subject to provisions and standards of Section 5 Wind Energy Facility Site Plan Review of this Article. 3.2 Principal or Accessory Use Wind Energy Facility ailrelated accessory uses may be considered either principal or accessory uses. A different existing use or an existing structure on the same parcel shall not preclude the installation of a Wind Energy Facility or a part of such facility on such parcel. Wind Energy Facilities that are constructed and installed in accordance with the provisions of this Article shall not be deemed to constitute the expansion of a nonconforming use or structure. Wind Energy Facilities shall be reviewed and approved pursuant to Section 5 of this Article. After designation as a Wind Energy Overlay District, new structures and uses within the "overlay" area shall be limited to those uses identified within Article IV. Agricultural District and wind energy facilities, subject to any additional standards of this Article. SECTION 4.0 APPLICABILITY A Wind Energy Conversion Facility (WECF) or Wind Energy Facility (WEF) shall be permitted in Agricultural Districts with a Wind Energy Facility Overlay District Classification. Wind Energy Facility Site Plan Review standards shall be used when reviewing an application for wind energy facility permit. Page 4 of 16
Wind Energy Facility Overlay Zoning Revised Ordinance J'5_PH Adopted November 10, 2015; Eff. November 27, 2015
SECTION 4.1 PRIOR APPROVALS Wind Energy Conversion Facilities which had site plan review applications pending before the Planning Commission on or before February 10, 2015, and which subsequently received site plan approval are exempt from the provisions of this Article X and such facilities shall be constructed and operated in accordance with the provisions of Article X: Huron County Wind Energy Conversion Facility Overlay Zoning Ordinance dated June 1, 2010. SECTION 5.0 WIND ENERGY FACILITIES SITE PLAN REVIEW PROCEDURE
(Adogted asofNovember 10,2015)
The following process shall be utilized when reviewing an application for a Wind Energy Facility Permit: Within an Agricultural District, a Wind Energy Facility Overlay District shall be created based on "attributes" and "limitations" identified in the Huron County Master Plan. A "Wind Energy Overlay District" classification is a prerequisite to developing a Wind Energy Facility. It is the intent of this "overlay district" to identify agricultural land eligible for commercial, large-scale wind energy conversion facilities and, at the same time, provide for maximizing and preserving agricultural activity. 5.1 SitePlanReviewRequired. Wind Energy Conversion Facilities shall not be located, constructed, erected, altered, or used without first obtaining a Wind Energy Facilities Permit pursuant to this Article. The Wind Energy Facilities Site Plan must be reviewed and approved by the Huron County Planning Commission pursuant to standards contained herein, and in conjunction with Article XIV Section 14.28. An applicant proposing a Wind Energy Facility must submit the following site plan materials: 1. Survey of the property showing existing features such as contours, large trees, buildings, structures, roads (rights-of-way), utility easements, land use, zoning district, ownership of property, and vehicular access; 2. Plan(s) showing the location of proposed turbine towers, underground and overhead wiring (including depth of underground wiring), access roads (including width), substations and accessory structures; 3. A description of the routes to be used by construction and delivery vehicles and of any road improvements that will be necessary in the County to accommodate construction vehicles, equipment or other deliveries, and an agreement or bond which guarantees the repair of damage to public roads and other areas caused by construction of the Wind Energy Facility; 4. Engineering data concerning construction of the tower and its base or foundation, which must be engineered and constructed in such a manner that upon removal of said tower, the soil will be restored to its original condition to a depth of (4) feet from established ground level; 5. Anticipated construction schedule; 6. Description of operations, including anticipated regular and unscheduled maintenance; 7. Digital versions of all planning and construction documents required pursuant to Section 5.1 Site Plan Review. Digital submittals are in addition to paper plans and do not replace any current submission requirements. Digital versions shall be submitted in PDF (Adobe Acrobat/Portable Document File) format. Page 5 of 16
Wind Energy Facility Overlay Zoning
Revised Ordinance V5_PH Adopted November 10, 2015; Eff. November 27, 2015 8. Plan(s), permits, and/or data showing compliance with the Huron County Memorial Airport Zoning Ordinance. 5.2 Application Fee: An applicant for a Wind Energy Facility shall remit an application fee to the County in the amount specified in the fee schedule adopted by resolution of the Huron County Board of Commissioners. Payment shall be made at time of application submission. 5.3-ApplicationMaterial. The following shall be included and/or be utilized as standards when preparing, submitting and reviewing an application for a Wind Energy Facility. A. Avian Analysis. The applicant shall submit an avian study to assess the potential impact of proposed Wind Energy Facilities upon bird and bat species. The avian study shall at a minimum report on a literature survey for threatened and endangered species, and any information on critical flyways. The applicant must identify any plans for post-construction monitoring or studies. The analysis should also include an explanation of potential impacts and propose a mitigation plan, if necessary. The applicant shall include documentation pertaining to compliance with the U.S. Fish and Wildlife Service voluntary Land-Based Wind Energy Guidelines, as amended. Developer shall provide affidavit of delivery (i.e. USPS Return Receipt) of any documentation requested by the U.S. Fish and Wildlife Service and the applicant's response. The applicant shall use measures to reduce the B. Visual Appearance; Lighting; Powerlines. visual impact of wind turbines to the extent possible, utilizing the following: 1) Wind turbines shall be mounted on tubular towers, painted a non-reflective, non-obtrusive color. The appearance of turbines, towers and buildings shall be maintained throughout the life of the wind energy facility pursuant to industry standards (i.e., condition of exterior paint, signs, landscaping, A certified registered engineer and authorized factory representative shall certify that the etc.). construction and installation of the wind energy conversion system meets or exceeds the manufacturer's construction and installation standards. 2) The design of the 'Wind Energy Facility's buildings and related structures shall, to the extent reasonably possible, use materials, colors, textures, screening and landscaping that will blend facility components with the natural setting and then existing environment. 3) Wind Energy Facilities shall not be artificially lighted, except to the extent required by the FAA or other applicable authority, or otherwise necessary for the reasonable safety and security thereof. 4) Wind turbines shall not be used for displaying any advertising except for reasonable identification of the manufacturer or operator of the Wind Energy Facility. 5) The electrical collection system shall be placed underground within the interior of each parcel at a minimum burial depth of five (5) feet. The communication system shall be placed underground within the interior of each parcel at a minimum burial depth of four (4) feet. The final location of the electrical collection system installation shall be identified by GPS location. The actual installed burial depth of underground wiring shall be verified by the developer of the wind energy facility. The developer shall provide certification from the installing contractor of the actual installed burial depth of all underground wiring. Such certification shall be under the penalty of perjury. The collection system may be placed overhead adjacent to County roadways, near substations or points of interconnection to the electric grid or in other areas as necessary. Page 6of16
Wind Energy Facility Overlay Zoning Revised Ordinance V5_PH Adopted November 10, 2015; Eff. November 27, 2015
6) Shadow Flicker: The allowable shadow flicker measured at the nearest external wall or walls of participating inhabited structures shall be limited to a maximum of 30 hours per year. Shadow flicker measured at the nearest external wall or walls of non-participating inhabited structures shall be limited to 3 0 hours per year. In the event shadow flicker from the Wind Energy Facility exceeds the limits stated above, a waiver to said limits may be approved provided that the following has been accomplished: (a) Written consent from the affected property owner(s) has been obtained stating that they are aware of the Wind Energy Facility and the shadow flicker limitations imposed by this Article, and that consent is granted to allow shadow flicker limits to exceed the maximum limits otherwise allowed; and (b) A shadow flicker impact easement shall be recorded with the Huron County Register of Deeds office which describes the benefitted and burdened properties and which advises all subsequent owners of the burdened property that shadow flicker limits in excess of those otherwise permitted by the ordinance may exist on or at the burdened property. The following setbacks and separation requirements shall C. Setbacks, Separation and Security. apply to all wind turbines within a Wind Energy Facility; 1) Inhabited structures: On a participating parcel, each wind turbine shall be set back from the Regarding a non-participating nearest inhabited structure a distance of no less than 1320 feet. parcel, each wind turbine shall be set back from the nearest inhabited structure a distance of no less than 1640 feet. A lesser setback may be approved pursuant to Section 5.1 of this Article if the intent of this Article would be better served thereby. A reduced setback shall be considered only with Where a turbine within a Wind written approval from the owner of the inhabited structure. Energy Facility is located in the vicinity of a school, hospital, church, public library, city, village, or self-zoned township, a setback of 1320 feet from the structure and/or boundary shall be required. Where a turbine location is proposed nearer to an inhabited structure than allowed by this section, an easement shall be established on the affected parcel(s), recorded with the Huron County Register of Deeds. 2) Property line setbacks: Excepting locations of public roads (see below), drain rights-of-way and parcels with inhabited structures, wind turbines shall not be subject to property line setbacks on participating parcels within the Wind Energy Facility Overlay District. Along the border of the Wind Energy Facility Overlay District, there shall be a setback distance equal to 1320 feet measured from the nearest wind turbine. Wind turbines and access roads shall be located so as to minimize the disruption to agricultural activity and, therefore, the location of towers and access Where a turbine location is routes is encouraged along internal participating property lines. proposed nearer to a non-participating internal property line than one and one-half (1.5) times the tip of the blade at its highest position [max height 499'], an easement shall be established on the abutting parcel(s). 3) Public Roads: Each wind turbine shall be set back from the nearest public road a distance no less than 500 feet or 1 .5 times its Hub Height, whichever is greater, determined at the nearest boundary of the underlying right-of-way for such public road.
Page 7 of 16
Wind Energy Facility Overlay Zoning Revised Ordinance V5 PH Adopted November 10, 2015; Eff. November 27, 2015
4) Communication and electrical lines: Each wind turbine shall be set back from the nearest above-ground public electric power line or telephone line a distance no less than 500 feet or 1.5 times its Hub Height, whichever is greater, determined from the existing power line or telephone line. 5) Tower separation: Turbine/tower separation shall be based on 1) industry standards, and 2) manufacturer certification. At a minimum, there shall be a separation between towers of not less than 3 times the turbine (rotor) diameter; and, the Wind Energy Facility shall be designed to minimize disruption to farmland activity. Documents shall be submitted by the developer/manufacturer confirming specifications for turbine/tower separation. 6) Following the completion of construction, the applicant shall certify that all construction is completed pursuant to the Wind Energy Site Permit and, in addition, that appropriate security will be in place to restrict unauthorized access to Wind Energy Facilities. 7) Shoreline Protection: A Wind Energy Turbine/Tower shall be located at least three (3) miles from the ordinary high water mark of the Lake Huron/Saginaw Bay shoreline, as established by the Michigan Department of Environmental Quality MCL 324.32502. Wind TurbinilTower Height (Total Height): The total height of a wind turbine shall be a maximum of 499 feet. The applicant shall demonstrate compliance with the Michigan Tall Structure Act (Act 259 of 1959, as amended) and FAA guidelines as part of the approval process.
D.
E. S o u n d (developed by Acoustics by Design)
1) The audible sound from a Wind Energy Facility at a Noise Sensitive Facility may not exceed the Equivalent A-weighted Continuous Sound Level (L.q) limits set forth in Table 1, measured in accordance with the methodology described in Sections (6) and (7). Table 1 —Equivalent A-weighted Continuous Sound Level (L eq) Limits Time
Zone Participating parcel
ff~~
cipating parcel __________________
7 a.m. to 10 p.m. p.m. to 7 a.m. 7 a.m. to 10 p.m. 10 p.m. to 7 a.m.
10
Equivalent A-weighted Continuous Sound Level (dBA) 50 45 45 45
2) In the event audible noise from the operation of the Wind Energy Facility contains a prominent discrete tone, the limits set forth in Table 1 shall be reduced by five (5) dBA. For a prominent discrete tone to be identified as present, the equivalent-continuous sound pressure level in the onethird octave band of interest is required to exceed the arithmetic average of the equivalentcontinuous sound pressure level for the two adjacent one-third octave bands by five (5) dB for center frequencies of five hundred (500) Hz and above, by eight (8) dB for center frequencies between one hundred and sixty (160) Hz and four hundred (400) Hz, or by fifteen (15) dB for center frequencies between twenty five (25) and one hundred and twenty-five (125) Hz as specified by ANSI S12.9 Part 3, Annex B. Page 8 of 16
Wind Energy Facility Overlay Zoning Revised Ordinance V5_PH Adopted November 10,2015; Eff. November 27, 2015 3) Any noise level falling between two whole decibels shall be rounded to the nearest whole number. 4) In the event the noise levels resulting from the Wind Energy Facility exceed the criteria listed above, a waiver to said levels may be approved provided that the following has been accomplished: (a) Written consent from the affected property owner(s) has been obtained stating that they are aware of the Wind Energy Facility and the noise limitations imposed by this Article, and that consent is granted to allow noise levels to exceed the maximum limits otherwise allowed; and (b) A noise impact easement shall be recorded in the Huron County Register of Deeds office which describes the benefitted and burdened properties and which advises all subsequent owners of the burdened property that noise levels in excess of those otherwise permitted by the ordinance may exist on or at the burdened property. 5) Sound Modeling Study - The applicant shall provide a predictive sound modeling study of all turbine noise for a Wind Energy Facility to verify that ordinance requirements can be met for the Equivalent A-weighted Continuous Sound Level limits in Table 1. The sound modeling must follow International Standard, ISO 9613-2 "Acoustics - Attenuation of sound during propagation outdoors Part 2: General method of calculation." The sound modeling study shall use the maximum apparent wind turbine sound power levels as determined by measurement according to IEC 61400— Part 11, or as determined by analytical calculations according to the manufacturer, plus 2 dB to each frequency band. The sound power source shall be modeled at hub height. Modeling shall include topographical information and assume hard ground (G0) for all large areas of pavement and water, and mixed ground (G=0.5) for all other land. The sound modeling study shall include a map with all proposed wind turbine locations, all Noise Sensitive Facilities, and all participating and non-participating parcels. The sound study map shall be overlaid with sound contour lines extending out to the 30 dBA sound contour line, at 5 dBA intervals from the center of the proposed Wind Energy Facility. 6) Post Construction Sound Survey - The applicant shall complete a post construction sound survey within 12 months of the commencement of the operation of the project. The applicant shall be able to determine compliance with the Equivalent A-weighted Continuous sound level limits set forth in Sections (1) and (2). The measurements and the reporting of the data shall be conducted in accordance with Section (6)(a) through Section (6)(c). The survey shall address noise complaints on file with the County and may require additional measurement locations as deemed necessary by the Planning Commission. Should the sound survey indicate a non-compliant measurement, the owner of the Wind Energy Facility will be required to obtain compliance through mitigation or other measures. (a) Methodology i) Refer to Section (8) for measurement personnel and instrumentation requirements. ii) A calibration check shall be performed and recorded before and after each measurement period. iii) The nighttime measurement period shall be 2 hours minimum and shall be continuously observed by a trained attendant. Sound level data shall be aggregated in 10-minute measurement intervals within the nighttime compliance measurement period (nighttime: 10:00 pm to 7:00 am). Page 9 of 16
Wind Energy Facility Overlay Zoning Revised Ordinance V5_PH Adopted November 10, 2015; Eff. November 27, 2015 iv) The daytime measurement period shall be 2 hours minimum and shall be continuously observed by a trained attendant. Sound level data shall be aggregated in 10-minute measurement intervals within the daytime compliance measurement period (daytime: 7:00 am to 10:00 pm). Because compliance with nighttime noise limits presumes compliance with the less stringent daytime noise limits, this requirement may be waived by the Planning Commission. v) Compliance will be demonstrated when the Equivalent A-weighted Continuous Sound Level of every twelve representative 10-minute measurement interval is less than or equal to the Equivalent A-weighted Continuous sound level limits as set forth in Sections (1) and (2) of this rule. Representative intervals are defined as: a. Periods complying with the general method for routine measurements of ANSI S 12.18. Measurements shall be made either downwind as defined in ANSI S 12.18, or if the atmospheric conditions are such that the direction of the wind vector is within an angle of± 45 degrees of the annual prevailing wind direction. b. Periods where the concurrent turbine hub-elevation wind speeds are sufficient to generate within 1 dB of the maximum continuous rated sound power from the nearest wind turbine to the measurement location. c. Periods where ground level gusts are equal to or less than 7 m/s (15.66 mph). vi) The sound level measured in each 10-minute measurement interval above may be corrected for transient background sound and continuous background sound, according to ANSI S 12.9 Part 3. (b) Measurement Locations i) The measurement locations shall be chosen by the developers' Measurement Personnel and by the Planning Commission prior to the Post Construction Sound Survey. ii) The measurement locations shall be performed at Noise Sensitive Facilities in close proximity to one or multiple wind turbines and/or locations which have modeled sound levels closest to limits identified in Table 1. A 3:1 ratio (wind turbines to measurement locations) will be used to determine the number of measurement locations, with a minimum of 8 measurement locations. The measurement locations shall include, but are not limited to, the following: a. A minimum of four measurements of different non-participating parcels. The measurement location shall be at the Noise Sensitive Facility, measured 50 feet from the façade nearest the closest wind turbine of the Wind Energy Facility. b. A minimum of two measurements of different participating parcels. The measurement location shall be at the Noise Sensitive Facility, measured 50 feet from the façade nearest the closest wind turbine of the Wind Energy Facility. c. Any measurement location determined necessary by the Measurement Personnel and Planning Commission. If both parties agree, a measurement location deemed unnecessary may be omitted from the required locations.
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Wind Energy Facility Overlay Zoning Revised Ordinance VS _PH Adopted November 10, 2015; Eft November 27, 2015
iii) The microphone shall be positioned at a height of 5 feet E 1 foot above the ground, and oriented in accordance with the characteristics of the microphone so that the frequency response is as flat as possible. iv) To the greatest extent possible, measurement locations should be located away from potential contaminating sources of noise such as major highways, industrial facilities and urban areas. v) To the greatest extent possible, measurement locations shall be at the center of unobstructed areas that are maintained free of vegetation and other structures or material that is greater than 2 feet in height for a 50-foot radius around the sound monitoring equipment. vi) To the greatest extent possible, measurement locations should be at least 50 feet from any known sound source. vii) Meteorological measurements of the surface wind speed and direction shall be collected using anemometers at a height of 6.6 foot ± 0.7 foot above the ground, near each noise measurement location. Care should be taken to avoid noise measurement contamination from the anemometer operation. (c) Reporting of Measurement Data Measurement Reports shall be submitted to the Planning Commission within 45 days of completion of the post-construction survey and shall include, at a minimum, the following: i) A narrative description of the sound from the Wind Energy Facility for the compliance measurement period result. ii) A narrative description of the sound measurements collected. iii) A map showing the wind turbine locations, noise measurement locations, and all Noise Sensitive Facilities. iv) The dates, days of the week and hours of the day when measurements were made. v) The wind direction and speed, temperature, precipitation, and sky condition for each 10minute measurement interval. Meteorological measurements of the wind speed and direction will be reported at both the surface height, and at hub level (to be provided by the Wind Energy Facility from the closest wind turbine), based on five second integration intervals. Both the average and maximum wind speeds for each 10- minute measurement interval shall be reported. vi) The wind energy output for each 10- minute measurement interval for the closest wind turbine. vii) Identification of all measurement equipment by make, model and serial number. viii) All meteorological, sound, windscreen and audio instrumentation specifications and calibrations. ix) All A-weighted equivalent sound levels for each 10-minute measurement interval. x) All 1/3 octave band linear equivalent sound levels for each 10-minute measurement interval and identification of tonal periods. Page 11 of 16
Wind Energy Facility Overlay Zoning Revised Ordinance V5 PH Adopted November 10, 2015; Eff. November 27, 2015
xi) All attendant's notes and observations. xii) All concurrent time stamped turbine operational data including the date, time and duration of any noise reduction operation or other interruptions in operations if present. xiii) All periods removed from the data due to temperatures above or below manufacturer specifications, wind speeds above ANSI S12.18 limits. xiv) All corrections for transient background and continuous background sound according to ANSI S12.9 Part 3. All methodology, data, field notes, and calculations shall be included. Audio recordings may be submitted for identification of intrusive noise events. Audio collection shall occur through the same microphone/sound meter as the measurement data. Audio recordings shall be time stamped (hh:mm:ss), at an adequate quality for identifying events, and in mp3 format. xv) All other information determined necessary by the Planning Commission. 7) Measurement of the Sound from Routine Operation of the Developments - Measurements of the sound from routine operation of completed Wind Energy Facilities are generally necessary only for specific compliance testing purposes in the event that community complaints result from operation of the development, for validation of an applicant's calculated sound levels when requested by the Planning Commission, or for enforcement by the Department. The applicant shall be able to determine compliance with the Equivalent A-weighted Continuous sound level limits set forth in Sections (1) and (2). The measurements and the reporting of the data shall be conducted in accordance with Section (7)(a) through Section (7)(c). Should the measurements indicate a noncompliant measurement, the owner of the Wind Energy Facility will be required to obtain compliance through mitigation or other measures. (a) Methodology - Refer to Section (6)(a). (b) Measurement Locations i) Measurement locations shall be conducted at the property of the complainant and chosen by the Measurement Personnel and by the Planning Commission beforehand. The measurement locations shall include, but are not limited to, the following representative locations: A minimum of one measurement location at the Noise Sensitive Facility of the complainant, measured 50 feet from the façade nearest the closest wind turbine of the Wind Energy Facility. b. Any measurement location determined necessary by the Measurement Personnel and Planning Commission. ii) The microphone shall be positioned at a height of 5 feet ± 1 foot above the ground, and oriented in accordance with the characteristics of the microphone so that the frequency response is as flat as possible. iii) To the greatest extent possible, measurement locations should be located away from potential contaminating sources of noise such as major highways, industrial facilities and urban areas. Page 12 of 16
Wind Energy Facility Overlay Zoning Revised Ordinance VS_PH Adopted November 10, 2015; Eff. November 27, 2015
iv) To the greatest extent possible, measurement locations shall be at the center of unobstructed areas that are maintained free of vegetation and other structures or material that is greater than 2 feet in height for a 50-foot radius around the sound monitoring equipment. v) To the greatest extent possible, measurement locations should be at least 50 feet from any known sound source. vi) Meteorological measurements of the surface wind speed and direction shall be collected using anemometers at a height of 6.6 foot ± 0.7 foot above the ground, near each noise measurement location. Care should be taken to avoid noise measurement contamination from the anemometer operation. (c) Reporting of Measurement Data Measurement Reports shall be submitted to the Planning Commission within 45 days of completion and shall include, at a minimum, the following: i) Refer to Section (6)(c)(i) through Section (6)(cXxv) 8) General Sound Survey Methodology (a) Measurement Personnel. Measurements shall be supervised by personnel who are independent of the Wind Energy Facility, well qualified by training and experience in measurement and evaluation of environmental sound, and are Board Certified members of the Institute of Noise Control Engineering (INCE). (b) Measurement Instrumentation. Measurement devices shall comply with the following requirements: 1) A sound level meter or alternative sound level measurement system used shall meet all of the Type 1 performance requirements of American National Standard Specifications for Sound Level Meters, ANSI S 1.4. ii) An integrating sound Level meter (or measurement system) shall also meet the Class 1 performance requirements for integrating/averaging in the International Electrotechnical Commission Sound Level Meters, IEC Publication 61672-1. iii) A filter for determining the existence of tonal sounds shall meet all of the Class 1 performance requirements of American National Standard Specification for Octave- Band and Fractional Octave-Band Analog and Digital Filters, ANSI S1.1l. iv) An acoustical calibrator shall be used of a type recommended by the manufacturer of the sound level meter and that meets the Type I performance requirements of American National Standard Specification for Acoustical Calibrators, ANSI S 1.40. v) A microphone windscreen shall be used of a type that meets or exceeds the recommendations of manufacturer of the sound level meter. vi) The sound level meter shall have been calibrated by a laboratory within 24 months of the measurement, and the microphone's response shall be traceable to the National Bureau of Standards. Page 13 of 16
Wind Energy Facility Overlay Zoning Revised Ordinance V5_PH Adopted November 10, 2015; Eff. November 27, 2015
vii) The sound level meter shall be used with the fast meter response and sampling frequency of one sample per second. viii) Anemometer(s) used for surface wind speeds shall have a minimum manufacturer specified accuracy of±1 mph providing data in five second integrations. ix) Compass used for surface wind direction shall have a minimum manufacturer specified accuracy of ±30 providing data in five second integrations. x) Thermometer used for surface temperature shall have a minimum manufacturer specified accuracy of ±2°C providing data in five second integrations. xi) A digital recording device used to store the time waveform of the sound pressure levels shall comply with the requirements of ANSI/ASA SI. 13.
G. Minimum Ground Clearance The blade tip of any Wind Turbine shall, at its lowest point, have ground clearance of not less than seventy-five (75) feet. H. Signal Interference No Wind Energy Facility shall be installed in any location where its proximity with existing fixed broadcast, retransmission, or reception antennas for radio, television, or wireless phone or other personal communication systems would produce electromagnetic interference with signal transmission or reception. No Wind Energy Facility shall be installed in any location along the major axis of an existing microwave communications link where its operation is likely to produce electromagnetic interference in the link's operation.
I. Safety 1) All collection system wiring shall comply with all applicable safety and stray voltage standards. 2) Wind Turbine towers shall not be climbable on the exterior. 3) All access doors to wind turbine towers and electrical equipment shall be lockable. 4) Appropriate warning signs shall be placed on wind turbine towers, electrical equipment, and Wind Energy Facility entrances. 5.4—Site Plan Approval, Amendments, Expiration and Revocation. A Wind Energy Conversion Facility Site Plan shall be permitted to be approved, approved with conditions, or denied. Site plans must also comply with Article XIV, Section 14.28 Site Plan Review (All Districts). An approved site plan and/or "conditionally approved" site plans are valid for 12 months from date of approval by the planning commission. The approved site plan shall be considered exercised once a building permit has been issued and substantial construction commenced. Any amendments to an approved site plan, accompanied by supporting documentation, shall be submitted to the planning commission prior to permit issuance. The planning commission shall review the amendment and may grant, deny or amend such amendment as deemed necessary. An approved site plan shall be revoked if the applicant fails to comply with conditions imposed by the planning commission, Article X provisions, and Section 14.28 of this Ordinance. Page 14 of 16
Wind Energy Facility Overlay Zoning Revised Ordinance J'5_PH Adopted November 10, 2015; Eff. November 27, 2015
SECTION 6.0 CERTIFICATION. Operation of a wind energy facility shall require certification of compliance; a certification report from the wind facility's owner/operator is required within twelve (12) months of the facility's initial operation (start-up) date. The post-construction certification report shall confirm the project's compliance with provisions of this code as well as all other all applicable laws and conformity with wind industry practices. "As Built List" 1. "As-built" construction plans 2. Digital version 3. Paper Copy SECTION 7.0 INSPECTIONS. The applicant (owner/operator) shall submit annual reports to the Planning Commission or its designated officer confirming continued compliance with applicable county codes or ordinances. This requirement shall not preclude the county from undertaking a separate compliance report, where confirmation of data provided by the facility's operator is desired. The cost of a county- sponsored report shall be reimbursed to the county by the facility's owner/operator through an escrow fund established pursuant to the 'schedule of fees for wind energy facilities', adopted from time-to-time by the Board of Commissioners. SECTION 7.01 COMPLAINT RESOLUTION. The Michigan Zoning Enabling Act allows a local unit of government to enact through ordinance regulations to achieve specific land management objectives and avert or solve specific land use problems; see MCL 125.3201(3). The Thumb area has been designated as a primary wind zone area and as a result it is anticipated that Huron County will experience substantial growth in wind energy facilities. In light of the foregoing, the County has developed a process for the resolution of complaints unique to wind energy systems. A description of a complaint resolution process shall be established by an applicant of a wind energy facility permit as part of its initial application for zoning approval. The process is intended to facilitate resolution of complaints concerning the construction or operation of the wind energy facility from nearby residents and/or property owners. The process may use an independent mediator or arbitrator and shall include a time limit for acting on a complaint. A complaint resolution process approved through a wind energy facility permit shall be prepared utilizing, at a minimum, guidelines which are established by resolution of the Board of Commissioners after recommendation by the Planning Commission; and, said process shall not preclude the county from pursuing any and all appropriate legal action on a complaint. Any person who SECTION 7.02 FALSE REPORT OF OFFICIAL COMPLAINT. intentionally makes a false complaint or intentionally causes a false report of a complaint or violation of Article X to the official in charge of enforcing the Wind Energy Facility Overlay Zoning Ordinance, knowing the report is false, is guilty of a civil infraction, and upon a finding of responsibility is subject to a fine of up to $500.00 for each violation and all costs associated with the investigation and prosecution thereof.
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Wind Energy Facility Overlay Zoning Revised Ordinance V5 PH Adopted November 10, 2015; Eff. November 27, 2015
SECTION 8.0 DECOMMISSIONING. The applicant shall submit a plan describing the intended disposition of the Wind Energy Facilities and/or individual wind turbines at the end of their useful life, and shall describe any agreement with the landowner regarding equipment removal upon termination of the lease. A performance bond or equivalent financial instrument shall be posted in an amount determined by the County (to be utilized in the event the decommissioning plan needs to be enforced with respect to tower removal, site restoration, etc.). The bond shall be in favor of Huron County, and may be provided jointly as a single instrument for multiple townships within a single wind farm, provided that any such single instrument shall be in an amount of at least $I million and shall contain a replenishment obligation. The replenishment obligation shall be satisfied with other additional documentation determined by the County, if the bond is not replenishable. The County reserves the right to review the decommissioning plan every 5 years, and revise requirements as necessary. SECTION 9.0. A moratorium adopted by the Huron County Board of Commissioners, adopted April 14, 2015, effective May 1, 2015, for a 90 day period, with a provision for a one-time 90 day extension, which became effective on July 30, 2015, which expired on October 27, 2015, and is no longer in effect due to the sunset provision.
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PINE RIVER TOWNSHIP ZONING ORDINANCE
SECTION 1528. WIND ENERGY FACILITIES. 1. DEFINITIONS. The following definitions shall apply to the issuance of special use permits and the approval of site plans for Wind Energy Facilities:
Alternative Energy Renewable energy sources, such as wind, flowing water, solar energy, and biomass, which create less environmental damage and pollution than fossil fuels, and offer an alternative to nonrenewable resources. Ambient The sound pressure level exceeded 90% of the time or L90.
ANSI American National Standards Institute. Legislative Body The Township Board of the Township of Pine River. db(A) The sound pressure level in decibels. Refers to the "a" weighted scale defined by ANSI. A method for weighting the frequency spectrum to mimic the human ear.
Decibel- The unit of measure used to express the magnitude of sound pressure and sound density. FAA The Federal Aviation Administration,
Habitual Structure Any structure usable for living or business purposes, which includes but is not limited to working, sleeping, eating, cooling, recreation, office, office storage, or any combination thereof. An area used only for storage incidental to a residential use, is not included in this definition,
Hub Height When referring to a Wind Energy System, the distance measured from ground level to the center of the turbine hub. Hub height is defined as the height from the Ground Level (GL) at which the hub of the windmill or the hub of the propeller blades of the wind energy generator is situated. IEC International Electro Technical Commission. The lEO is the leading global organization that prepares and publishes international standards for all electrical, electronic and related technologies. ISO International Organization for Standardization. ISO is a network of the national standards institutes of 156 countries.
Met Tower A meteorological tower used for the measurement of wind speed. Michigan Tall Structure Act (MCL 249.481 et seq) Governs the height of structures in proximity to airport related uses and is included as a standard in the Township's Zoning ordinance in regards to Wind Energy Facilities. Non-Participating Lot Any lot of property in the township not within the boundaries of a Wind Energy Facility.
On Site Use Wind Energy Systems This system is intended to primarily serve the needs of the consumer, and is considered an accessory building. Planning Commission The Township of Pine River Planning Commission. Rotor An element of a wind energy system that acts as a multi-bladed airfoil assembly, thereby extracting through rotation, kinetic energy directly from the wind.
PINE RIVER TOWNSHIP ZONING ORDINANCE
SCADA Tower A freestanding tower containing instrumentation such as anemometers that is designed to provide present moment wind data for use by the supervisory control and date acquisition (SCADA) system. Shadow Flicker Alternating changes in light intensity caused by the moving blade of a wind energy system casting shadows on the ground and stationary objects, such as a window in a dwelling. Single WECS for Commercial Purposes A single WECS placed upon a lot with the intent to sell or provide electricity to a site or location other than the premises upon which the structure is located. The WECS may or may not be owned by the owner of the property upon which the WECS is placed. Single WECS for On-site Service Only A single WECS placed upon a lot with the intent to service the energy needs of only that lot upon which the structure is placed. Sound Pressure Average rate at which sound energy is transmitted through a unit area in a specified direction; the pressure of the sound measured at a receiver. Sound Pressure Level The sound pressure mapped to a logarithmic scale and reported in decibels (dB). Tip Height When referring to a Wind Energy System, the distance measured from ground level to the furthest vertical extension of the rotor. Utility Grid Wind Energy Systems This system is designed and built to provide electricity to the electric utility grid. WECS Testing Facility or Testing Facility A structure and equipment used to determine the potential for the placement of a WECS. Wind Energy Facility or Wind Energy Conversion Facility (WECS) An electricity generating facility consisting of one or more wind turbines under common ownership or operation control, and includes substation, Met Towers, cables/wires and other buildings accessory to such facility, whose main purpose is to supply electricity to off-site customers. Wind Energy Facility Special Use Permit A permit issued upon compliance with the standards enunciated in the Township's Zoning Ordinance in regards to Wind Energy Facilities. Wind Energy System A wind energy conversion system which converts wind energy into electricity through the use of a wind turbine generator and includes the turbine, blades, and tower as well as related electrical equipment. This does not include wiring to connect the wind energy system to the grid. Wind Site Assessment An assessment to determine the wind speeds at a specific site and the feasibility of using that site for construction of a wind energy system.
PINE RJVER TOWNSHIP ZONING ORDINANCE
2. SPECIAL USE PERMIT AND SITE PLAN REVIEW. Wind Energy Facilities, except for WECS for On-Site Service Only, shall not be located, constructed, erected, altered, or used without first obtaining a Wind Energy Facilities Special Use Permit and Site Plan Approval pursuant to this Section. The Wind Energy Facilities Site Plan must be reviewed and approved by the Planning Commission pursuant to standards contained herein. An applicant proposing a Wind Energy Facility must submit the following site plan materials. 1. Company contact information (telephone numbers and e-mail addresses), including name of company, name of project, key company contacts with titles, EIN (Employer Identification Number). 2. A narrative describing the proposed Wind Energy Facility, including an overview of the project. 3. Site plan (GIS) shape file overlay, electronic file and paper copy of the property showing existing and proposed features such as buildings, structures, roads (right of ways), applicable utility easements, county drains, land use, zoning district, ownership of property, location of proposed turbine towers (with required setbacks, exclusion zones and nonparticipating properties), underground and overhead wiring (including depth underground), access roads (including width), substations and accessory structures. 4. Details or drawings shall show features in the design of a typical tower and its base that upon removal of said tower will allow restoration of the soil at the site to a depth of 4 feet pursuant to Chapter 15 Section 7. 5.
Anticipated construction date and anticipated completion date.
6. The lessor must acknowledge the fact in writing that decommissioning process poses some risk of the concrete bases remaining in place, if the responsible party (lessee) was unable to properly remove the bases as required in this ordinance. This acknowledgment is to be submitted with the application package and can be in the form of the actual lease language that has been signed by the lessor or an Acknowledgment Letter" that documents this understanding and has been signed by the lessor. b.
Application Material. The following shall be included and/or be utilized as standards when preparing, submitting and reviewing an application for a Wind Energy Facility, except for WECS for On-Site Service Only. Applicant shall show evidence of compliance with applicable statutes and County and Township ordinances including, but not limited to: a. b. c. d. e. 2.
Part 31 Water Resources Protection (MCL 324.3101 et seq.) Part 91 Soil Erosion and Sedimentation Control (MCL 324.9101 et sec), and the corresponding County Ordinance. Part 301 Inland Lakes and Streams (MCL 324.30101 et seq.) Part 303 Wetlands (MCL 324.30301 et seq.) All other applicable laws and rules in force at the time of Application
Visual Appearance, Lighting, Power lines. The applicant shall use measures to reduce the visual impact of wind turbines to the extent possible, utilizing the following: a. Wind turbines shall be mounted on tubular towers, painted a non-reflective, nonobtrusive color. The appearance of turbines, towers and buildings shall be maintained throughout the life of the wind energy facility (i.e., condition of paint, signs, landscaping, etc).
PINE RIVER TOWNSHIP ZONING ORDINANCE
Wind turbines and meteorological towers shall not be artificially lighted, except for to the extent required by the FAA or other applicable authority, or otherwise necessary for the reasonable safety and security thereof. Wind turbines shall not be used for displaying any advertising except of reasonable identification of the manufacture or operator of the Wind Energy Facility. The electrical collection system shall be placed underground at a depth designed to accommodate the existing agricultural land use to the maximum extent practicable. The collection system may be placed overhead from substations to points of interconnection to the electric grid or in other areas as necessary. C.
Setbacks, Separation and Security. The following setbacks and separation requirements shall apply to all wind turbines within a Wind Energy Facility, except for WECS for On-Site Service Only. 1.
Occupied Buildings: Each wind turbine shall be set back from the nearest residence, school, hospital, church or public library, or any other occupied buildings a distance no less than the greater of (a) two (2) times its Hub Height, or (b) one thousand (1,000) feet.
2.
Shadow flicker minimization: Wind turbines shall be placed such that shadow flicker to any occupied buildings occurs no more than 30 hours per year.
3.
Property line setbacks: Except a set forth in this section, wind turbines shall not be subject to a property line setback. Wind turbines and access roads shall be located so as to minimize the disruption to agricultural activity and, therefore, the location of towers and access routes is encouraged along internal property lines. Wind turbines shall not be located with 1.5 times Hub height of the property line of a Non-Participating Lot.
4.
Boundaries with non-participating lots: Wind turbines shall not be located within 1.5 times Hub Height of the property line of a non-participating lot.
5.
Public roads: Each wind turbine shall be set back from the nearest public road a distance no less than 400 feet or 1.5 times its Hub Height, whichever is greater, determined at the nearest boundary of the underlying right-of-way for such public road.
6.
Railroads & "Rails to Trails": Each wind turbine shall be set back from the nearest Railroad or "Rails to Trails" a distance no less than 400 feet or 1.5 times its Hub Height, whichever is greater, determined at the nearest boundary of the underlying right-of-way for such Railroad & "Rails to Trails".
d.
Compliance with Wind Energy Site Permit: Following the completion of construction. the applicant shall certify that all construction is completed pursuant to the Wind Energy Site Permit. (GIS overlay)
e.
Wind Turbine,Tower Height: The applicant shall demonstrate compliance with the Michigan Tall Structure Act (MCL 259.481 and following), FAA guidelines, and local airport zoning as part of the approval process.
f.
Noise: Wind Energy Facilities shall not exceed 55 dB(A) at the habitable structure closest to the wind energy system. This sound pressure level may be exceeded during short-term events such as utility outages and/or severe wind storms. If the ambient sound pressure level exceeds 55 dB(A) the standard shall be ambient dB(A) plus 5 dB(A).
g.
Minimum Ground Clearance: The blade tip of any Wind turbine shall, at its lowest point, have ground clearance of not less than seventy five (75) feet.
h.
Signal Interference: No large scale Wind Energy Facility shall be installed in location where its proximity with existing fixed broadcast. retransmission, or reception antennas for television,
PINE RIVER TOWNSHIP ZONING ORDINANCE
radio, or wireless phone or other personal communication systems would produce electromagnetic interference with signal transmission or reception. i.
3.
Safety 1.
All collection system wiring shall comply with all applicable safety and stray voltage standards.
2.
Wind turbine towers shall not be climbable on the exterior.
3.
All access doors to wind turbine towers and electrical equipment shall be lockable.
4.
Appropriate warning signals shall be placed on wind turbine towers, electrical equipment, and Wind Energy Facility entrances.
5.
Appropriate signage for emergency contact information shall be located at the wind turbine tower.
j.
Transportation: Submit a copy of proposed transportation plan to be used by construction and delivery vehicles. Approval of appropriate authorities required prior to construction.
k.
Application Fee. An application for a Wind Energy Facility shall remit a fee in the amount specified in the approved schedule adopted by resolution of the legislative body. This schedule shall be based on the cost of the township of the review, which may be adjusted from time-totime.
SPECIFIC LAND USE STANDARDS FOR WIND ENERGY FACILITIES. a.
Wind Energy Facility Special Use Purpose and Intent. The purpose of this Section is to provide a regulatory scheme for the designation of properties suitable for the location, construction and operation of Wind Energy Conversion Facilities (Wind Energy Facilities) within the township, in an effort to protect the health, welfare, safety, and quality of life of the general public, and ensure compatible land uses in the vicinity of the areas affected by wind energy facilities.
b.
Regulatory Framework 1.
Zoning. A Wind Energy Facility may be constructed by special use permit on land that is within an Agricultural District on the official zoning map for the Township, subject to provisions and standards of this Section and the Site Plan Review requirements and other appropriate Approvals.
2.
Principal or Accessory Use. A Wind Energy Facility and related accessory uses may be considered either principal or accessory uses. A different existing use or an existing structure on the same lot shall not preclude the installation of a Wind Energy Facility or part of such facility on such lot. Wind Energy Facilities that are constructed and installed in accordance with the provisions of this Section shall not be deemed to constitute the expansion of a non-conforming use or structure. Wind Energy Facilities shall be reviewed and approved pursuant to the Zoning Ordinance.
PINE RIVER TowNsHIP ZONING ORDINANCE
c.
Applicability. The requirements in the Township's Zoning Ordinance in regards to Wind Energy Facilities shall apply to all Wind Energy Conversion Facilities, which shall be permitted as a special use in an Agricultural District. Wind Energy Facilities Site Plan Review standards shall be used when reviewing any application for a wind energy facility.
d.
Certification. Any approval for Wind Energy Facilities shall require the applicant to provide a postconstruction certification that the project complies with applicable codes and industry practices. Applicant shall provide as-built GIS shape file, electronic file, and paper site plan.
e.
Inspections. The applicant's maintenance and inspection records shall be generated annually and are subject to audit by the township. Inspection Reports shall contain current contact information and be updated whenever the contact information changes.
f.
Decommissioning. The applicant shall submit a plan describing the intended disposition of the alternative energy project at the end of its useful life and shall describe any agreement with the landowner regarding equipment removal upon termination of the lease. Within 12 months of any tower or turbine not operating, the applicant/tower must submit a plan to the township concerning the status of the wind power project and steps that shall be taken to either decommission the tower or turbine, or to achieve renewed commercial operation. Any tower/turbine left unused or inoperable for over 24 months would be deemed to be disposed of by developer/applicant. The land must be returned to its original state. Concrete bases will be removed four feet below ground level with appropriate drainage and filled with like soil that was removed. The applicant shall post a performance bond or equivalent financial instrument for decommissioning. The bond shall be in favor of the township and may be provided jointly as a single instrument for multiple governmental units within a single wind farm, provided that any such single instrument shall be in an amount of at least $1 million and shall contain a replenishment obligation.
4. REQUIREMENTS FOR SINGLE WECS FOR ON-SITE SERVICE ONLY. Single WECS For On-Site Service Only that are designed and intended to service the energy needs of only the property where the structure is located may be approved in any zoning district as a Special Use, provided the property upon which the Single WECS is to be located is at least three and one-half (3-1/2) acres in size and subject to the special use permit and site plan review and approval procedures and standards/criteria of this Ordinance, as well as all of the following: a.
The tower shall not exceed a height of 80 feet.
b.
The blade diameter (tip to tip) shall not exceed 100 feet.
c.
The height of the overall WECS (with the blade in the vertical position) shall not exceed 130 feet above ground level (at normal grade).
d.
The distance of the tower from all property lines shall be at least two (2) times the WECS height.
Michigan State University Extension Land Use Series
Sample Zoning for Wind Energy Systems Original version: March6,2017 Last revised: October 6,2020'
This document presents zoning ordinance sample amendments for utility scale wind energy systems (WES) and smaller wind electric generation systems for an individual business or home. Contents
2 Purpose and Use of Sample Zoning........................ 3 Due Process.................................................................... RelatedCase Law................................................................................................................................................................10 Public Acceptance Factors Related to Wind Energy Development......................................................................11 Towardsa Better Process..................................................................................................................................................15 Sample Zoning Amendments for Wind Energy Systems...................................................................................17 Authors..................................................................................................................................................................................35 AppendixA. Wind Turbine Noise ...............................................................................................................................36 Appendix B: Comparison of Regulation......................................................................................................................42 Appendix C: Shadow Flicker, FAA Lighting..............................................................................................................44 Appendix D: Summary of Michigan-Specific Wind Energy Research and Information...............................47 Appendix E: List of Revisions to this Document.......................................................................................................48
"Thirty seven million acres is all the Michigan we will ever have" William G. Milliken 'There are earlier versions of this document dating back to 2008. They should not be used. There are significant and important updates and changes to this version.
Purpose and Use of Sample Zoning Background
Michigan's entry into wind energy production started in 1996 with a single commercial wind turbine installed in Traverse City. In 2019, approximately 2000 megawatts (MW) are generated by wind energy in Michigan accounting for about 5% of the total energy produced.' This document is designed for local units of governments in Michigan that are amending a zoning ordinance to include wind energy systems (WES) for the first time or amending an existing regulation. As of December 2019, less than half of all Michigan communities had adopted wind energy zoning ordinances (753 out of 1773 total units of government). 3 This sample zoning resource was originally developed in 2008 and is periodically revised with the intent of striking a balance between the need for clean, renewable energy and the necessity to protect the public health, safety, and welfare. New research and technological advances around wind energy invite periodic revision. While some communities will choose to model zoning on similarly situated communities in Michigan, it is beneficial to consider recent research, experiences, standards, and regulations in the broadest context. This document refers to wind energy system regulations and research from Michigan, other states, Canada, and Europe. Policy and Process
This sample zoning resource begins with a discussion of due process, related case law, public acceptance factors related to wind energy development, and steps towards a better process. Wind energy proposals can bring controversy and the size of a project can be at a scale the community has not yet experienced. Despite the large scale or changes to normal procedure, the basics of due process and reasonable regulation based on a plan still apply. The guidelines, court cases, and cautions in this document offer supplemental policy and process considerations for wind energy regulation. Sample Zoning
Sample zoning language is included as a resource for local governments to consider when amending the zoning ordinance to include WES. This document offers sample regulation for temporary anemometers, on-site, and utility-scale WES. Temporary anemometers are often installed as a precursor to a utilityscale WES to assess the wind resource. On-site WES, generally, are sized to primarily serve the needs of a single home, farm, or small business. Utility-scale WES are sized to provide power to wholesale or retail customers using the electric utility transmission and distribution grid to transport and deliver the wind generated electricity. The sample zoning language offers a range of options and does not prescribe a specific set of zoning requirements. Michigan's land use patterns, average parcel sizes, and dwelling densities vary among communities, making a one-size-fits-all recommendation impractical. Additionally, grid-like road networks, major transmission lines, and natural features, can have the effect of creating a relatively more
2
U.S. Energy Information Administration (ELA), Michigan State Profile Estimates (2020). https://www.eia.gov/state/analysis.php?sid-MI Michigan Department of Environment, Great Lakes, and Energy (EGLE), Office of Climate and Energy, Zoning for Renewable Energy Database (2019). https://ww.michian.ov/c1irnatcandcnervi0.4580.7-364--51995l--,00.htm1 Land U.c&rkcSamplcZonrngforWindEwg
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confined canvas for wind energy development in Michigan than in other areas of the country with significantly larger parcels or limited road networks. Appendix
This updated version also includes detailed information on wind turbine noise (Appendix A: Wind Turbine Noise) as certain aspects sound and noise regulation introduce complex regulatory language that may be unfamiliar. This is followed by a comparison of WES zoning regulation in Michigan communities and Midwestern states (Appendix B: Comparison of Regulation) and a more detailed look at shadow flicker and Federal Aviation Administration (FAA) lighting (Appendix C: Shadow Flicker, FAA Lighting). An annotated bibliography of Michigan wind energy research (Appendix D: Summary of Michigan-Specific Wind Energy Research and Information) and revision history (Appendix E List of Revisions to this Document) are also provided. This is a fact sheet developed by educators within MSU Extension and was reviewed by outside agencies and experts. This work refers to university-based peer reviewed research, when available and conclusive, and based on the parameters of the law as it relates to the topic(s) in Michigan. This document is written for use in Michigan and is based only on Michigan law and statute. One should not assume the concepts and rules for zoning or other regulation by Michigan municipalities and counties apply in other states. This is not original research or a study proposing new findings or conclusions.
Due Process All the principles and rules for zoning apply to zoning regulations relating to WES. Strong opposition or support of a WES does not mean that basic due process and other rules do not apply. These issues are covered here because communities have been observed trying to circumvent these basic principles because of strong feelings for or against WES development in their jurisdiction.
Procedural Due Process Requirements for procedural due process,' meaning going through all the notifications, rendering decisions based on standards in the zoning ordinance and competent and material evidence, and more, must be followed. Although wind energy developments can be controversial and potentially overwhelming to a rural community, there are no shortcuts or exceptions to following zoning procedures outlined by the Michigan Zoning Enabling Act.' A failure to follow procedural due process, 6 such as improper noticing or an incomplete record of proceedings, is one of the fastest ways to land in court. Procedural due process errors might also include assigning alternates to serve on a planning commission (when there is no legal authority to do so) or missing addresses in the required noticing area for a public hearing. Communities reviewing a wind
U.S. Const., amend. V. Michigan Const. of 1963. Art. I, 17. 'Schindler, K. (2013,July 22). "Due Process" is often a source of lost court cases in local government. MSU Extension. 2013. https://www.canr.msu.edu/news/due process is often a source of lost court cases in local government 6 Comell Law School. (n.d.). Procedural due process. In Legal Infonnation Institute's Wex Retrieved September 3, 2020, from https://wwwiaw.corndll.edu/wex/proccdural due process 4
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energy system application should work closely with an experienced municipal attorney to satisfy all procedural due process requirements.
Substantive Due Process When regulating property, one of the major concerns in the United States is that the regulation is not too restrictive thereby infringing on a person's private property rights, or regulating areas of personal life outside of what is appropriate for government. Substantive due process has three key components: the substance of the regulation, that the regulation has a logical connection between the government's purpose and the regulation itself and that the regulation is the least amount possible while still achieving the public purpose of the regulation. Substantive due process is one of the constitutional rights found in the Fifth and Fourteenth Amendments of the United States Constitution. Substance of the Regulation An initial consideration for determining if substantive due process is met is whether the issue is a legitimate one for the government to regulate. Not every issue is a legitimate subject for local government regulation. For example, local government regulation that infringes on constitutional rights, such as freedom of speech or freedom of the press, would be out-of-bounds for a local ordinance. The regulation has to have a rational government purpose, or further a legitimate governmental interest in preserving public health, safety, and welfare. A common example of this within zoning is sign regulation. The regulation of signs is permissible provided it is about placement, size, lighting and so on. if the regulation is based on the content of the sign, or what the sign says, that regulation conflicts with constitutionally protected free speech.' Thus, regulation of signs must be content-neutral. Government cannot regulate what the sign says and cannot treat one sign differently than another based on what the sign says. Again, government must have the constitutional or statutory authority to regulate the subject in the first place. Regulation Related to Purpose The second part of substantive due process is that the regulation relates to the government's purpose. In simple terms, that means the local government should be able to explain how the regulation accomplishes its purpose or goal. In Michigan, the master plan contains the vision, goals, objectives, and strategies upon which a zoning ordinance (regulation) is based. Within the master plan there are certain elements, comprising the zoning plan, which more directly tie regulations in zoning to goals and objectives in the master plan. Zoning ordinances include a zoning map dividing the municipality or county into various zoning districts. The zoning plan elements of the master plan should clearly show how the master plan supports the configuration of those particular geographic areas. Supporting elements of the master plan include text and existing land use maps and analyses, the future land use map, projections showing future housing, commercial and industrial needs, natural resource attributes for working lands and so on.
7
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Least Regulation
Local ordinance standards should be the least amount of regulation possible to achieve the public purpose. If research shows a minimal regulation will do the job, then that is all that should be required. It would not be appropriate to require additional regulation beyond that minimum threshold. With respect to WES regulation, this concept is easily explained with standards related to wind turbine noise, if research concludes that noise beyond a specified level can be harmful to human health, then that noise level is the least regulation to accomplish the public purpose of protecting health, safety, and welfare. Adopting a more stringent regulation that requires a lower noise level may go too far - beyond what is appropriate for government to regulate and defend if challenged in court. Master Plan and Research
As zoning must be based on a plan, the master plan process is the starting point for understanding local support for different types of renewable energy such as wind. The legitimacy of government regulation of WES is strengthened by a clear relationship between the master plan and the zoning ordinance. Some communities specifically address renewable energy (such as solar and wind) in their master plans. 8 Other communities do not, but still regulate WES through zoning. Communities that identify policy directions for renewable energy in their master plans are more clearly able to show the rational relationship between their zoning regulations and the government's purpose. When planning for renewable energy, a community would be wise to seek public input on multiple forms of renewable energy such as solar, wind, geo-thermal, and biomass. This planning process may start with educating the public about different types of renewable energy, how renewable energy relates to climate change and related community goals, and possibly followed by a visual preference survey with photos of small, medium, and large-scale development (on-site vs. utility-scale, for example). The 2020 Draft Huron County Master Plan includes survey results for resident preferences of various forms of renewable energy (solar, geothermal, wind, etc.). 9 Community preferences for type, location, and scale of renewable energy can help to assign various uses (or not) to specific zoning districts or an overlay zone. The plan also includes policies on decommissioning or repowering existing WES once they reach the end of their useful life. The regulation of wind energy should also be informed by the most recent published, peer-reviewed research findings. This documentation ties to the substance of the regulation and how the regulation relates to the public purpose. As such, the master plan process sets the stage that frames and legitimizes particular zoning approaches.
8 Gratiot County. (2017). County-Wide MastcrPlan. htcps://www.gorowgratiot.org/uploads/9/5i'3/0/9530559/fina1 gr:ttict master plan 1.14.19.pdf Objective 4.3, Strategy 4.3.2 "Continue to pursue alternative energy companies, market the County as an alternative energy industry hub." Objective 1.3, Strategy 1.3.7 "Pursue existing funding opportunities and create incentives for large farms to utilize, maintain, and create green energy." 9 Huron County. (2020). Master Plan Draft, 2020. https://590e4aa5-9f61-478f-8f4cd72a53f03ffb.filesusr.com/ugd/f69a3e ab4ea34605a1455e992278a4cd90ab7e.12df Figures 20 and 21 "Alternative Energy Options" present the results of a survey question that asked "Through the zoning ordinance, Huron County should provide avenues to pursue the following alternative energy development:" with wind ranking higher than biomass and anaerobic digesters, but lower than solar, geothermal, and methane gas capture. The "Vision for Huron County-Goals and Action Items" contains a section on Renewable Energy Goals, including those for utility-scale Wind Energy.
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Accommodate All Land Uses A separate concept is that of accommodating all legitimate land uses in zoning. The Michigan Zoning Enabling Act requires a zoning ordinance to accommodate all legitimate land uses in the presence of a demonstrated need: A zoning ordinance or zoning decision shall not have the effect of totally prohibiting the establishment of a land use within a local unit of government in the presence of a demonstrated need for that land use within either that local unit of government or the surrounding area within the state, unless a location within the local unit of government does not exist where the use may be appropriately located or the use is unlawful.'° There is a need for reliable, clean energy, as prescribed in Michigan's Clean and Renewable Energy and Energy Waste Reduction Act of 2008 (amended in 2016 with the new target of producing 35% of the state's electric needs through energy waste reduction and renewable energy sources by 202511). Local units of government must consider whether overly restrictive zoning regulations for utility-scale wind energy systems (or solar energy systems) amount to an unlawful exclusion of a land use where there is a demonstrated need (referred to as exclusionary zoning). Isabella County used a Geographic Information System (GIS) to determine how different setbacks would change the potential number of turbines that could be built within a square mile section (if any at all). Planners applied different setback distances using GIS datasets for roads, wetlands, water bodies, parcel lines, and primary dwellings. This mapping exercise illustrated how setbacks, between 1,000 feet and 2,000 feet, would substantially change the number and placement of utility-scale wind towers within a study area) A larger setback may have the effect of severely limiting or even excluding wind energy from a jurisdiction. It is likely that some land uses cannot be reasonably accommodated in every local unit of government in Michigan. A local unit of government with concerns about excluding a specific land use in the presence of a demonstrated need, or severely limiting the extent or scale of a land use, should consult an experienced municipal attorney to better understand potential consequences. Takings Local zoning cannot amount to a taking, which occurs if a regulation requires or permits physical invasion by others onto private property or is so sweeping that it, in effect, takes away all economically viable use of land.11 Property owners or wind energy developers might challenge a zoning ordinance in court by alleging that regulations are overly restrictive (i.e. unreasonable) and deprive them of economical use of Michigan Zoning Enabling Act. Mich. Comp. Laws. 125.3207(2006). http://legislature.mi.gov/doc.aspx'mcl-125-3207 Michigan Clean, Reliable, and Efficient Energy Act. Mich. Compi. Laws (PA 342 of 2016). Amends Act 295 of 2008. http://1eislature.mi.gov/doc.aspx?mc1-460-1001 11
n Tim Nieporte, Director of Isabella County Community Development. Interview (2019). Planners used a set of assumptions including each parcel under 10 acres being considered non-participating (did not sign a lease) and about 80% of parcels over 40 acres considered participating (did sign a lease). 13 Both state and federal constitutions prohibit taking of private property for public use without just compensation - U.S. Constitution, Amendment V. and Michigan Constitution 1963, Article 10 Q. The U.S. Supreme Court has recognized that the government effectively takes a person's property by overburdening that property with regulations. Pennsylvania Coal Co. v. Mahon, 260 US 393,415; 43 S Ct 158; 67 L Ed 2d322 (1922). As has the Michigan Supreme Court. K& K Construction, Inc v. Department of Natural Resources, 456 Mich 570,576; 575 NW2d 531 (1998). See also Land Use Series "Property Taking, Types and Analysis:" https://www.canr.msu.edu/resources/roertv taking types and analysis Land U.cScncs:Sampk Zoning for\Vind EncrgySy.tcms I OMwhiganStatc University Board ofTrusues I Page 6of49
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their property. Case law establishes that a regulatory taking only occurs if the regulation in question results in total (i.e. 100%) economic deprivation. 14
Equal Protection Zoning must provide equal protection of all persons affected by the laws." Equal protection means similarly situated individuals are treated in a similar manner and bear no greater burdens than are imposed on others under like circumstances. Therefore, local zoning regulations must be applied uniformly across all the properties within a zoning district. It is common for wind energy regulations in the Midwest to include differential standards based on the presence of a wind energy lease or not (i.e. participating parcel vs. non-participating parcel). Such an approach does not violate equal protection because the property owner in this instance is electing to live under a different regulatory regime in exchange for monetary compensation from the wind energy developer or energy utility. However, it is not appropriate for local regulations to in any way require or otherwise coerce such payments as a condition of approval.
Cannot Delegate Legislative Decisions A local elected body cannot delegate away its legislative authority. In practice, this may occur if a zoning standard includes a requirement for neighbors to sign off as a condition of approval. A zoning ordinance provision may be invalidated if it effectively delegates the legislative power, originally given by the people to a legislative body, to a narrow segment of the community. 16
Police Power Versus Zoning For purposes of this discussion there are two different types of ordinances: (1) police power ordinances (sometimes referred to as regulatory ordinances) and (2) zoning ordinances. The two types of ordinances deal with entirely different subjects and have different procedures for adoption. If a police power ordinance purports to regulate use of land, then it is a zoning ordinance and will be struck down if not adopted according to the procedures in the Michigan Zoning Enabling Act, and vice versa. 17
Palazzolo v. Rhode Island, 533 U.S. 606 (2001) ' U.S. Const, amend. IV. '6 There is more to consider about delegating away legislative authority as pointed out in Howard Twp. Bd. of Trs v. Waldo, 168 Mich. App. 565,573-74,425 N.W.2d 180,184 (1988): "Zoning ordinances have been invalidated when a consent provision, in effect, delegates the legislative power, originally given by the people to a legislative body, to a narrow segment of the community. City of Eastlake v Forest City Enterprises, Inc. 426 U.S. 668,677; 96 S Ct 2358; 49 L Ed 2d 132 (1976). However, not all consent provisions are invalid. As stated in Cadyv Detroit, 289 Mich 499,515; 286 N%V 805 (1939): "A distinction is made between ordinances or regulations which leave the enactment of the law to individuals and ordinances or regulations prohibitory in character but which permit the prohibition to be modified with the consent of the persons who are to be most affected by such modification." 43 CJ, p 246. If such consent is used for no greater purpose than to waive a restriction which the legislative authority itself has created and in which creation it has made provision for waiver, such consent is generally regarded as being within constitutional limitations. City of East Lansing' Smith, 277 Mich 495 [269 NW 573 (1936)]. Here, the consent provision does not delegate legislative power to a narrow segment of the community. Rather, it merely requires a waiver as the first step in an administrative procedure authorized by the zoning ordinance." 17 In Forest Hill Energy-Fowler Farms, LLC. v. Township of Bengal Michigan Court of Appeals (Unpublished, No. 319134, December 4, 2014), the court expressed a jurisdictional hierarchy as follows: '4
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The Michigan Zoning Enabling Act reads: Except as otherwise provided under this act, an ordinance adopted under this act [a zoning ordinance] shall be controlling in the case of any inconsistencies between the [zoning] ordinance and an ordinance adopted under any other law."' The Michigan Zoning Enabling Act also preserves the historical priority of township zoning over county zoning. It reads: Except as otherwise provided under this act, a township that has enacted a zoning ordinance under this act is not subject to an [zoning] ordinance, rule or regulation adopted by a county under this act. 19
Conflict of Interest Conflict of interest is common among members of the legislative body and/or the planning commission when rural wind energy projects are being considered. This may be the case because wind energy developments span large geographic areas and often involve many separate landowners, some of which may be elected or appointed local officials. The legislative body or planning commission may have existing rules or bylaws on what constitutes a conflict of interest for one of its members and how a conflict of interest is handled. Planning commissions are required to have bylaws with rules on handling a conflict of interest. 20 If no such rules or bylaws are in place, they should be established and would apply to all matters before the board or commission. A conflict of interest for the board or commission member could, among other things, result from: 1. Relationship: A.The member is the applicant B.A member's relative is the applicant (how distant a relative should be defined in the board rules or bylaws.) 2. Proximity. A.The member is the property owner B.The member's property is adjacent, or within a certain proximity to the land under consideration. Proximity could be established in the board rules or bylaws. 3. Financial:
• County police power ordinances. (Counties have very limited police power ordinance adoption authority. See County government powers are very limited: https://www.canr.msu.edulnews/county government powers are very limited) • Municipal (Township, city, and village) police power ordinances will supersede the above ordinances. • County zoning ordinance will supersede each of the above ordinances. • Township zoning ordinance will supersede each of the above ordinances (except townships and counties do not have general jurisdiction within the boundaries of a village or city). 18 Michigan Zoning Enabling Act. Mich. Comp. Laws. 125.3210(2006). http://legislature.migov!doc.aspx?rncl-125-3210 19 Michigan Zoning Enabling Act. Mich. Comp. Laws. 125.3209(2006). http://legislacure.mLgov/doc.aspx?mcl-125-3209 20 Michigan Planning Enabling Act, Mich. Comp. Laws. 125.3815 (2008). http://legislature.mi.gov/doc.aspx?mcl-125-3815 Also see the MSU Extension Sample Bylaws for a Planning Commission: https://www.canr.msu.edu/resources/sarnple Ic bylaws for a planning commission Land UscScries. Sample ZoningforWind Eney Systems I "Mtehigan State Univeriity Board of Trustees I MSII Exzcn.sion I October 6, 2020 Page 8of49
A. The member (or relative) stands to gain or lose financially by the decision of the decisionmaking body. Involvement of the community's attorney that is experienced in municipal (planning and zoning) law is advised when a conflict of interest issue presents itself for one or more board members (such as they have signed a lease or easement with a wind energy company).
Neutrality As with any zoning issue, members of the planning commission and zoning board of appeals should not announce or conclude publicly they are for or against a WES or wind energy project before the public hearing and all the information has been presented and deliberated, findings of fact have been adopted and reasons in support of the decision formulated, and a motion containing a decision has been made and seconded. Just like any issue, members have the task of remaining neutral so that an applicant's due process rights are upheld. When this has not been done, disgruntled applicants have applied to circuit court asking the judge to remove the member of the planning commission or appeals board who is displaying bias by announcing his or her favor or opposition to a wind energy project. Special land use standards can invite and encourage differing viewpoints coming into the meeting (as compared to appeals board variance standards). Outside of the public hearing, however, members of the planning commission or appeals board should remain neutral for all pending administrative decisions. It is not appropriate for a planning commission member or an appeals board member to say "1m going to vote against X no matter what because I dislike X." Following the hearing and discussion of facts relating to standards in the ordinance, it is fine for a planning commissioner or zoning board of appeals member to express an opinion that is factually based such as, "I don't think that your evidence describing no risk to the community is convincing or meets this standard in the ordinance." A healthy outcome of deliberation and debate during a public meeting is being able to consider a change of approach or opinion. It is okay (and normal) for opinions to change through a public hearing process. The job of the planning commission and zoning board of appeals is to thoroughly review the request according to the ordinance standards and make a decision. Dialogue and debate help to shape that decision. When tensions are high, a planning commission or legislative body may be less inclined to deliberate or share opinions. The chairperson will have to provide strong leadership here to make sure that the public, the applicant, and the board feel safe and supported when offering opinions and questions.
Must approve if all standards are met Like any land use application, whether a permitted use or a special use under the local zoning ordinance, a WES application must be granted if the applicant satisfies the standards and conditions set forth in the zoning ordinance. To protect the public interest and to assure compliance with the ordinance, reasonable conditions may be imposed as a requirement for approval. 21
Leases and Easements Developers may not own the property on which wind turbines sit, but instead sign private leases or easements with landowners that convey certain rights from the landowner to the developer. Zoning has 21
Michigan Zoning Enabling Act. Mich. Comp. Laws. 125.3504 (2006). http:I/legislature.mi.gov/doc.aspx'nlcl-125-3504 Land U.ceScri cr.Sampkzoningfor Wind EnogySystcm.c
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no authority to require specific content or performance within a lease or easement or enforce the provisions of a lease or easement among private parties. Leases and easements are binding legal agreements that define what is required of each party, such as tax payments, revenue payments to the landowner, access to the property, expiration of the agreement, and options for renewal. There may be agreements with landowners who will not have a wind turbine on their property but who made an agreement with the wind developer, for example, to not construct another structure such as a cellular tower that might alter access to the wind resource; Furthermore, these agreements can be secured by one party/developer and then sold to another.
Related Case Law Utility-scale WES have been very controversial in some communities. Even so, there has been relatively few published court opinions that have precedenthi value. 22 In Tuscola Wind III, LLCv. Almer Charter Township et al.23 the court upheld the township's regulation of wind energy development. This 2017 opinion emphasizes the importance of defining a noise descriptor (such as Leq, 1-90) to determine zoning compliance rather than specifying only a maximum sound level (such as 45 dBA) without a noise descriptor. The Township prevailed in representing that they interpreted their ordinance sound level of 45 dBA as an Lmax, (the maximum sound level during a measurement period or a noise event) although it was not written in the ordinance. See Appendix A: Wind Turbine Noise for definitions of various sound descriptors. In a second case, Tuscola Wind 111, LLC v. Ellington Township cv aL,24 the court found the Township's wind energy moratorium enacted by resolution, not by ordinance was in violation of the Michigan Zoning Enabling Act. The court concluded that a 2015 ordinance in effect prior to the invalid" moratorium was the standard of review, but recognized there was no timeline in the ordinance for the township to act, so it could wait to consider the application until after adoption of a subsequent, more restrictive amendment to the zoning ordinance was enacted. Additional arguments around due process, injunctive relief, and the Open Meetings Act were dismissed or found to be moot. These cases were heard by the United States District Court Eastern District of Michigan, Northern Division.25 Typically, a federal district court's interpretation of state law (as opposed to federal law) is not binding on state courts, although state courts may adopt their reasoning as persuasive. Thus, for example, if a case is construing the Michigan Zoning Enabling Act, it will not have any precedential effect on Michigan courts.
The March/April 2020 issue of PlannuigcY Zoning News reviews several Michigan court cases involving wind energy. Copies can be ordered at: http://pznews.net/. 23 Tuscola Wind 111, LLCv. Almcr Charter Twp., 327 F. Supp. 3d 1028 (ED. Mich. 2018) U.S. District Court, Eastern District of Ml, Northern Division 14 Tuscola Wind Ill, LLCv. Ellington Twp., Case No. 17-cv-11025 (E.D. Mich. Jul. 27. 2018) U.S. District Court, Eastern District of MI, Northern Division 6th Circuit Court of Appeals takes the position that the doctrine of stare dccisis makes a federal district court 25 decision binding precedent in future cases in the same court (until reversed, vacated, or disapproved by a superior court, overruled by the court that made it, or rendered irrelevant by changes in the positive law). Copy of opinion: Land U5cSerie Sampkzoningfor Wind Enciy Sytentc I OMichiganState Univcrsity Board of Truscc.c J IMSUExtmsion I October 6, 2020 Page 100149
In a published Michigan Court of Appeals opinion, Ansel v. Delta County Planning Commission, 26 appellants expressed concern over noise and shadow flicker that turbines "would be expected to produce" 27 and the plaintiff asserted that they were not aggrieved parties and lacked standing to appeal the decision to Circuit Court (the ZBA is not authorized to hear appeals of special land use permits in Delta County, so the party appealed the matter directly to Circuit Court). The Court affirmed the trial court's ruling that the appellants lacked standing to appeal because they failed to show they suffered special damages or unique harm not common to other property owners. To be an aggrieved party, one must "show damages of a special character distinct and different from the injury suffered by the public generally." 28 Although maps were available that specified the anticipated noise and flicker on particular properties, the "...appellants happen to be residents scattered about the community whose objections ... are more apparently driven by concerns of a general nature than by expected consequences of operation of the turbines peculiar to themselves." 29 An unpublished opinion from the Michigan Court of Appeals regarding an attempt to regulate wind energy by police power (i.e. regulatory) ordinance is worth mentioning too, Forest Hill Energy-Fowler Farms, LLC v Bengal Twp., Dallas Twp., and Essex Twp. 30 After Forest Hill applied for a special land use permit under the Clinton County Zoning Ordinance, Bengal, Dallas and Essex Townships, who were subject to the county zoning ordinance, each adopted a wind energy ordinance under the Township Ordinances Act. 3" These regulatory ordinances had the effect of prohibiting Forest Hill's proposal due to height, setback, noise, and shadow flicker standards. Forest Hill filed a lawsuit and the Court of Appeals ultimately agreed with the trial court's finding that the townships' ordinances actually constituted zoning ordinances, and that because the townships' ordinances were not enacted under the Michigan Zoning Enabling Act, the county ordinance was controlling.
Public Acceptance Factors Related to Wind Energy Development Development and siting of a large wind energy project can be one of the more controversial issues that a rural community faces. However, not all wind energy projects are controversial. Community acceptance factors are complex and varied. 32 One analysis of North American wind energy research over the past 30 years identified six factors that help explain wind energy acceptance by individuals living near proposed or existing wind energy developments: (1) socioeconomic aspects: (2) sound annoyance and health risk perceptions; (3) visual/landscape aspects, annoyance, and place attachment; (4) environmental concerns
26 Arell v. Delta County Planning Commn,
2020 Mich. App. LEXIS 3688, 2020 WL 3005856 (Court of Appeals of Michigan June
4, 2020, Decided) 27 Ar4I v. Delta Cnty. Planning Conmfn, 28
p. 5
Olsen v. Jude C'Rced, LLC, 325 Mich. App. 170,924 N.W.2d 889 (Mich. Ct. App. 2018)
v. Delta Cnry. Planning Comm n , p. 5 ' Forest Hill Energy-Fowler Farms, LLC, LLC v. Twp. of Bengal, 2014 Mich. App. LEXIS 2380 (Court of Appeals of Michigan December 4, 2014, Decided) 31 Township Ordinances Act. Mich. Compi. Laws (PA 246 of 1945). http:/ilegislature .mi.gov/doc.aspx?mc1Act-246-of 1945 Fournis, Y. & Fortin, Mj. (2017). From social 'acceptance' to social 'acceptabih . of wind energy projects: Towards a territorial perspective. Journal of Environmental Planning and Management, 60(l),1-21. https:I/doi.orr/10.1080109640568.2015.1133406. 29 Ai1l
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and attitudes; (5) distance from turbines; and (6) perceptions of planning process, fairness, and trust. 33 The relationships between each of these factors and public acceptance of wind energy developments are briefly summarized in the following sections.
Socioeconomic Aspects Research points to both potential positive and negative economic impacts from wind energy development. Studies on this theme explore impacts on local job creation, local tax revenue, landowner compensation, impacts on tourism, electricity bills, and property value impacts. Economic benefits and negative economic impacts of wind energy developments - and the extent to which community members put weight into each - vary from place to place. One consistent theme in how individuals respond to wind development proposals relates to the concept of distributional justice, referring to the distribution of the costs and benefits of wind energy developments. 34 Some of these concerns are on the distribution of benefits and costs between the host community and the greater region or society at large. This can include concern that rural communities are bearing the burden of reaching renewable energy goals with projects owned my multinational (i.e., non-local) corporations and producing much more power than the rural community itself needs, thus having that power exported to an urban area. 35 There is also often concern about distributional justice between those residents who would receive direct compensation from the wind developers and those who would not. A nationwide study by Firestone et al.16 and a study of Michigan windfarms by Mills et al." find this direct compensation important in influencing attitudes toward wind energy projects. As a result, developers have broadened the geographic extent of royalty payments to include residents within the entire area of a project. While this does tend to influence attitudes positively, it also has the effect of increasing the number of township board or planning commission members who may have a conflict of interest.
Sound Annoyance and Health Risk Perception There are two key strands of research connecting how noise from wind turbines impacts an individual's attitude about wind turbines: those related to annoyance and direct impacts to human health. There is evidence that the sound generated by wind turbines causes more annoyance than a similar sound produced from some other source. Research of U.S. wind turbines by Haac et al}s showed that while an individual's annoyance with wind turbine sound is linked to measured turbine noise levels, annoyance is 33
Rand,J. & Hoen, B. (2017). Thirty years of North American wind energy acceptance research: What have we learned?
Energy Research cSodal Science, 29,135-148. https://doLorg/1O.1016/j.erss.2017.05.O19
Rand,J. & Hoen, B. (2017). Thirty years of North American wind energy acceptance research: What have we learned? Energy Research & Social Science, 29,135-148. https://doLorg/lO.1016/j.crss.2017.05.019
Groth, T.M. & Vogt, C. (2014). Residents' perceptions of wind turbines: an analysis of two townships in Michigan. Energy Policy, 65.251-260. https://doi.2rgtlO.101!2.enpol.2013.10.055
Firestone,J., Hoen, B., Rand,J., Elliott, D., Hübner, G., & Pohl,J. (2017). Reconsidering barriers to wind power projects: community engagement, developer transparency and place. Journal of Environmental Policy & Planning, 20(3),370-386. https:;/doi.or/10.1080/l523908X.20l7.1418656 37 Mills, S., Bessette, D., & Smith, H. (2019). Exploring landowners' post-construction changes in perceptions of wind energy in Michigan. Land use Policy, 82, 754-762 https:J/doi.org,'1O.1016;'j.hmdusepol.2019.01.010 Haac, T.R., Kaliski, K., Landis, M., Hoen, B., Rand, J., Firestone, J., Elliott, D., Hubner, G., Pohl, J. (2019). Wind turbine audibility and noise annoyance in a national U.S. survey: Individual perception and influencing factors, The Journal of the Acoustical Society oJAmerica, 146,1124-1141. https://doi.org/10.112111.5121309 Land LIcSeries. Sample Zoni ngfor Wind EnctgySycccntc
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better explained by how the individual felt about the visual appearance of the wind turbine (i.e., those who reported disapproving of the looks of wind turbines were also more likely to report being annoyed by their sound) and whether or not the individual was receiving direct compensation. As to direct health risk, although an individual's perception of health risk increases their opposition to wind turbines, Rand and Hoen (2017) write "Recent epidemiological research concludes that wind turbine sound and infrasound are not directly related to adverse human health effects or sleep quality." Even so, since the perception of health risk plays a role in acceptance of wind energy facilities, project developers may see value in addressing these concerns through appropriate changes to project design beyond what local regulations might minimally regulate.
Visual/Landscape, Annoyance, and Place Attachment The idea that beauty is in the eye of the beholder is true for wind turbines. Many studies of public opinion in host communities of utility-scale WES have found negative perceptions of turbine impact on scenic beauty. Research found that this opposition to wind energy development is most common when individuals feel that the turbines threaten what makes a particular landscape special, and is particularly evident in places where people have strong attachment to the landscape. 19 Recent research, for example, found more opposition to wind energy in landscapes that are national parks or other protected areas . 41' However, the negative reaction to turbines within a landscape is not universal. Many agricultural communities have shown moderate to high support for wind energy, as residents see wind turbines as protecting the rural farming character of the landscape by preventing suburban expansion, or see them as another productive use of the land . 41 Related research suggests that wind turbines in operation are perceived more positively as compared to when not operating and idle . 42 Other research finds that some perceive the visual impact of wind energy facilities to be symbolic and positive, a way of showing progress or a commitment to the environment. 43 How well wind turbines might be perceived to fit within the landscape may vary from community to community, and even within communities. As a result, it is not uncommon to see modern-day discussions about wind energy resembling those that gave rise to Right to Farm laws 40 years ago: trying to balance the rights of those who see the land for productive uses and those who value it for other reasons, including but not limited to aesthetics. With this in mind, local officials should consider how their local master plans and zoning ordinance provisions balance these competing landscape views and apply that logic to WES, as appropriate and legally defensible.
9 Devine-Wright, P. (2009). Rethinking NIMBYism: The Role of Place Attachment and Place Identity in Explaining Placeprotective Action. Journalof Community eApplied Social Psychology, 19,426-441. htt2s://doi.org/l0 . 1002/cas12. 1004 ° Giordono, LS., Boudet, H.S., Karmazina, A., Taylor, C.L, & Steel, B.S. (2018). Opposition "overblown"? Community response to wind energy siting in the Western United States. Energy Research & Social Science, 43,119-131. https://doi.orgflO.1016/j.crss.2018.05.016 41 Banas Mills, S., Borick, C., Gore, C., & Rabe, B.G. (2014, April). "Wind Energy Development in the Great Lakes Region: Current Issues and Public Opinion." Issues in Energy and Environmental Policy No. 8. Centerfor Local, State, and Urban Policy, Ford School of Public Policy, University of Michigan. https://papers.ssrn.com/sol3/papers.cfin?abstract id-2652865 42Fergen, J. &Jacquet,J. (2016). Beauty in motion: Expectations, attitudes, and values of wind energy development in the rural U.S. Energy Research &Social Science, U, 133-141. http://dx.doi.orgI10.10I61j.erss.2015.09.003 41 Mulvaney, K.K., Woodson, P., & Stalker Prokopy, L (2013). A tale of three counties: Understanding wind development in the rural Midwestern United States. Encigy Policy. 56,322-330. httDs://doi.or2/10.1016/j.enpol.2012.12.064
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Environmental Concerns and Attitudes It is common for environmental concerns to be brought up both by proponents and opponents of wind energy. Wind energy development—like any other development—will have impacts on wildlife, particularly during construction. While many wildlife will return following construction, that may not be the case if the project impacts niche habitat. There are also often concerns over the long-term impact on birds and bats, and there is no shortage of research estimating bird and bat fatalities. 14 There is also research putting these fatalities in perspective of other human activities. 45 Further, many environmental organizations, including the National Audubon Society, support properly sited wind energy, as it helps mitigate climate change, which poses an even graver threat to species. 46 The American Wind Wildlife Institute, a collaboration that includes equal representation of environmental organizations and wind energy developers, includes numerous research studies and recommendations on best practices to avoid conflict with wildlife.
Distance from Turbines As Rand and Hoen (2017) write in their review of research articles on wind energy perceptions, "researchers have consistently examined the hypothesis that those living closest to turbines will have the most negative attitudes about the local wind facility. These studies, however, have produced no clear consensus" (p. 142). 47 1n some cases, those nearest the turbines had more positive views; in other cases, these nearest neighbors had more negative views. As suggested in a paper based on a study of Michigan windfarms, this is likely because many previous studies do not take into account that the most intense impacts—both positive and negative—often accrue to those nearest the turbines . 41 While those closest to the turbines may be the most likely to hear the turbines, they are also the most likely to be financially compensated. As a result, the distribution of those nearest neighbors who receive compensation versus those that do not across the projects that have been studied may lead these conflicting research findings. Again, this is likely among the reasons wind developers have broadened the geographic extent of royalty payments to include residents within the entire area of a project.
Perceptions of Planning Process, Fairness, and Trust Countless studies point to community trust in the wind energy development siting process as being extremely important to public acceptance or acceptability. Indeed, research from Michigan finds that attitudes about the siting process to be even more important to perceptions about wind energy than whether or not the respondent is financially compensated by a wind developer . 9 Further, this research 44
American Wind Wildlife Institute. (2017, June). Wind Turbine Interactions with Wildlife and Their Habitats: A Summary of Research Results and Priority Questions. Washington, D.C. ht9ps:!/awwi.orgwpcontent/uploads/2017/07/AWVVI-Wind-Wild]ife-Intcractions-Summarv-Iune-2017.pdf 45 Zimnierling.J., Pomeroy, A., dEntremont, M., & Francis, C. (2013). Canadian estimate of bird mortality due to collisions and direct habitat loss associated with wind turbine developments. Avian Consen'ation and Ecology, 8(2)10. http//dx.doi.org/10.5751/ACE-00609-080210 46 Sovacool, B. K. (2013). The avian benefits of wind energy: A 2009 update. Renewable Energy, 49,19-24. https:!/doi.org/l0.1016/j.renene.2012.Ol.074 47 Rand,J. & Hoen, B. (2017). Thirty years of North American wind energy acceptance research: What have we learned? Energy Research ei-Sodal Science, 29,135-148. https://doi.org/10.1016/j.erss.2017.05.019 48 Mills, S., Bessette, D., and Smith, H. (2019). Exploring landowners' post-construction changes in perceptions of wind energy in Michigan. Land Use Policy, 82, 754-762. https://doi.org/10.1016/j.L'tndusepol.2019.01.010 49 Mills, S., Bessette, D., and Smith, H. (2019). Exploring landowners' post-construction changes in perceptions of wind energy in Michigan. Land Use Policy, 82, 754-762. https://doi.orgilO.1016/i.landusepoL20l9.OLO1O Land UscScrw.cSwnpleZoni ngfor Wind Energy Sy.ctentc
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found that attitudes about process fairness have impacts not just in the short-term (i.e., about how contentious the process is or whether or not a wind project gets built), but can shape how residents feel about a wind energy project long after the project has been built. A study from 2017 provides a useful summary on procedural fairness in the wind energy development process and its relationship to the overall community attitudes associated with wind projects. 54 Researchers find that 1) a developer being open and transparent, 2) a community having a say in the planning process, and 3) a community being able to influence the outcome are all statistically significant predictors of a process perceived as being fair. Trust and sense of fairness are directly tied to meaningful public engagement in the siting and decisionmaking process. This includes both actions taken by wind developers as well as those taken by local officials (i.e., planning commissioners and township/county board members)." If kept out of the siting, review, and decision-making process, community members may perceive that concerns related to anticipated effects are not being addressed and costs and benefits are not being fairly distributed across the community and with the developer. This can lead to community members feeling that local officials are not listening to them and the community as a whole is being treated unfairly, which can result in opposition directed both at the developer and the policymakers who reviewed the project. 52 As a result, it is imperative that local governments follow a process that is open and allows for meaningful participation by members of the community (discussed in further detail below). Additionally, wind energy developers "...have to negotiate expectations with host communities and articulate a shared vision for a project. This requires interacting with a wider segment of the public than NGOs or municipal decision makers and making concerted efforts to learn the history and culture of a place" (p. 29).
Towards a Better Process Research recommends wind developers and local governments provide meaningful education, collaborative discussions, and robust public participation opportunities very early in the process in order to lessen friction among parties. Very early in this context means prior to wind studies or installation of anemometer towers, etc. 54 When communities plan and zone for wind energy facilities prior to a project being proposed, they have the benefit of time to more thoughtfully consider whether, how, and where it fits within their community. Proactive planning can also send a message to wind developers that your community would welcome a renewable energy development or not. If a developer has already submitted
°Firestone,J., Hoen, B., Rand,J., Elliott, D., Htbner, G., & PohI,J. (2017). Reconsidering barriers to wind power projects: community engagement, developer transparency and place. Journal of Environmental Policy c!rPlanning, 20(3),370-386. htrps://doi.org40.1080/1523908X.2017.1418656 51 Bidwell, D. (2013). The role of values in public beliefs and attitudes towards commercial wind energy. Energy Policy, 58,189199. https://doi.orgf10.1016/jenpoL2013.03.010 12 Ellis, G., Barry,J. & Robinson, C. (2007). Many ways to say 'no', different ways to say 'yes': Applying Q-methodology to understand public acceptance of wind farm proposals. Journal of Environmental Planning and Management, 50(4), 517-551. https:1/doLorg/10.1080/09640560701402075 53 Fast, S. & Mabee, W. (2015). Place-making and trust-building. The influence of policy on host community responses to windfarms. Energy Policy, 81,27-37. bttp://dx.doi.org/10.1016/j.enpol.2015.02.008 " Romich, E., Hall, P. & Beyea, W. (2013 December 18). Utility Scale Renewable Energy Development - Project Siting & Conflict Resolution. Recorded webinar. North Central Regional Center for Rural Development. https://www.canr.msu.cdu/ncrcrd/webinars/chronoIoicaI archive/index 5
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an application in a community, there are still steps that can be taken to help increase public involvement in the siting process.
Community-Wide Education The time to increase awareness and to educate and inform people about wind energy development is ideally before a project application is submitted or land easement acquisition starts. 55 Education should not have a goal to convert or persuade members of the community to oppose or support a wind energy project, but rather to provide fact-based information about the benefits and negative impacts of wind energy. Educational efforts can include open houses with experts or a storefront where representatives of the project are accessible. Education should be about: 1. Wind energy generally, 2. Siting issues, 3. Findings from published academic research and peer-reviewed studies, and 4. Possibly include tours of existing wind energy developments. This education should be done by a trusted third party, not the developer, not the local government, not the local chamber or economic development office, all which may be perceived as on one side of the issue. This may be a role for Michigan State University Extension, a community college, other universities, League of Women Voters or similar organizations. Process for Drafting the Zoning Ordinance While planning commissions typically operate via public hearings, as required by the Michigan Zoning Enabling Act, this format has certain shortcomings, particularly while drafting zoning ordinance amendments related to WES. For example, public hearings invite for or against comments and do not allow or encourage the planning commission to engage in a conversation with community members or other interested stakeholders. As with other types of development, there are a variety of public engagement techniques for collecting public opinion on potential land uses and appropriate standards. These, however, should be conducted before an application for that type of development is submittedY For a complex issue such as wind energy development, focus or working groups, made up of community members, including local planning commissioner(s) and developers, could be formed by the local unit of government to dig deeper into key issues and concerns. A list of potential discussion topics is included in
There may be push-back to this approach. Developers want to get easements as quietly and as quickly as possible. The belief is publicity just raises the price of leases for a developer. However, there are examples where education before the project application or land easement acquisition starts has worked, e.g., earlyJohn Deere wind energy projects in Huron County and other developers in Gratiot County, Michigan. Further Reading from Michigan State University Extension on public participation: The Public Hearing is the worst way to involve the public: https://www.canr.msu.edu/news/the public hearing as the worst way to involve the public Before settling for a public hearing, consider the continuum of public involvement: https://www.canr.msu.edu/ncws/before settling for a public hearing consider the continuum of public invol Increasing public participation in the planning process: https://www.canr.msu.edulncws/increasing public participation in the planning process 55
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a "Lessons Learned" document from the first decade of wind development in MichiganY These groups would provide a better opportunity for dialogue than the more rigid public hearing format, particularly with regard to a proposed zoning amendment. Focus groups or other intentional facilitated sessions, when organized by a unit of government, would be subject to the Open Meetings Act and Freedom of Information Act. To reiterate, focus groups would be appropriate for a zoning amendment process in instances where a zoning application has yet to be submitted. Exparte communication (discussing the business of the public body outside of a public meeting) would become an issue if planning commissioners were meeting in a focus group after a developer had submitted an application for a wind energy system.
Process for Evaluating Zoning Applications Once a zoning application for a wind development is submitted, local officials still have a role to play in helping ensure that the community understands the planning process. One important role of the planning commission is articulating to the public what amount of discretion they have once a zoning application is submitted. In many cases, the public hearing format can lead to a perception of lack of fairness, especially when a clear majority of the comments are opposed or in support of a certain proposal and the planning commission makes a decision contrary to the opinion of the majority of the public in the room during the formal hearing. This is not an outcome unique to wind energy development. This is all too often the outcome of new development proposals because the planning commission is an administrative body that has the primary responsibility to uphold and apply the ordinance as written. Community members, however, rarely know that this is the case. In these situations, the planning commission should be clear to remind the public that the planning commission has very little discretion in applying the ordinance standards. Instead, they are obliged to review the application against the current ordinance standards and render a decision as to whether the development proposal satisfies all applicable ordinance standards. If the proposal satisfies those standards, it must be approved, if it does not satisfy one or more standard, it must be denied. Further, while planning commissioners may be tempted to ignore points made in public comments that do not pertain to the ordinance standards before them, it may be helpful to acknowledge those points and to, again, educate the public on why the commission cannot consider them in evaluating the proposal.
Sample Zoning Amendments for Wind Energy Systems The following is offered as sample zoning ordinance amendment language. It is intended as a starting point for a community to use when considering this issue. This sample ordinance is not a definitive recommendation by the authors or MSU Extension. A sample is a starting point for discussion and development of an ordinance or ordinance amendment that is Wind Energy Stakeholder Committee. (2018 January). Lessons Learned: Community Engagement for Wind Energy Development in Michigan, Wind Energy Stakeholder Committee (WESC). Le arned WESC.Report Final.pdf Land UseS ccSampleZoni ngfor Wind EnagySys tems I OMichiganState Univcr.sity Board of Trustees MSU Extension I Octobcr6,2020 Page 17of 49
appropriate for a particular community. That means any numerical standard (dimensional standard) offered in the sample zoning amendment is just a starting point for discussion. The commentary shown in highlighted boxes in the sample ordinance is intended to provide more detailed information to aid local policy decisions around numeric standards or other regulation. This document is written for use in Michigan and is based only on Michigan law and statute. One should not assume the concepts and rules for an ordinance by Michigan municipalities and counties apply in other states. In most cases they do not. First, consider the following: • If zoning exists in a city, village, township, or county, then a zoning ordinance amendment must be adopted pursuant to the Michigan Zoning Enabling Act. A step-by-step checklist of procedures to amend a zoning ordinance is available from Michigan State University Extension's Land UscSeries: 'Checklist # 4 For Adoption of a Zoning Ordinance Amendment (including some PUN in Michigan".59 • In a township with county zoning the township, or residents of the township, must work with the county planning commission to consider a zoning amendment to the county's zoning ordinance pursuant to the Michigan Zoning Enabling Act. Checklist #4 is also applicable here. • Where there is a Joint Planning Commission the municipality must work with the joint planning commission to amend a zoning ordinance pursuant to the Michigan Zoning Enabling Act, Joint Municipal Planning Act, and the local Joint Planning Ordinance and Agreement. Checklist #4 is also applicable here. • if zoning does not exist, then it is not possible to adopt these regulations apart from the adoption of a complete zoning ordinance establishing rules and creating the public offices and bodies necessary pursuant to the Michigan Zoning Enabling Act.
Options for Ordinance Structure There are different ways for a WES to be classified in a zoning ordinance. The zoning classification for a WES is influenced by the height and scale (on-site v. utility-scale) of the systems, and the potential for impact to neighboring properties. Communities typically use two or more of the following regulatory approaches for different types of WES: • Permitted use: Often used for on-site systems under a certain height, often approved administratively with basic site plan or plot plan. • Special land use (system): Used for utility-scale systems as one application for the entire system. Although dozens or hundreds of turbines may be included under one application, community members can object to the placement of specific turbines or request turbine specific mitigations. • Special land use (individual turbine): Applications are submitted and reviewed for each wind turbine generator (this is not acommon approach). Some communities designate larger on-site systems (such as those over 90 feet) as a special land use. 58
Schindler, K. (2016 May 31). Check List #4 For Adoption of a Zoning Ordinance Amendment (including some PUDs) in
Michigan. Michigan State University Exxension.
hui,s://www.canr.msu.edu/resources/check list 4 for adoption of a zonina ordinance amendment includina some nu 59 Also see MSU Extension article "Amending a zoning ordinance requires adopting an ordinance" at: https://www.canr.msu.edu/news/amcnding a zoning ordinance rcguires adopting an ordinance
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• Overlay district: A specific zoning district that applies over underlying zoning districts that specifies areas for wind development and uses the site plan review process rather than a special land use approval process (Huron and Gratiot County are examples of this approach and it is discussed in more detail below). • Planned unit development (PUD): This option has not been utilized in Michigan to date, but it offers yet another approach to design a wind energy system that meets performance standards designed for overall community benefit. The sample provided here uses the special land use approach, but there are others to consider. The sample zoning for utility-scale WES is written with the following assumptions: a) The municipality has a site plan review process in its zoning ordinance and follows it. b) The municipality's attorney whom is experienced in municipal law (planning and zoning) will review any proposed amendments before they are adopted. The Overlay Zoning Approach
An alternative option to the special land use provided in this sample zoning ordinance, is the overlay zoning district approach. The method uses zoning amendments (map and text) to identify and approve land areas suitable for wind energy development. Some overlay zoning districts are considered floating and are not mapped until the applicant requests a map amendment. Once land is approved in the wind energy overlay district classification, the wind turbine locations and other features of the development (like access roads) are subject only to site plan review procedures. A benefit of the overlay district is that it allows for more careful targeting of sections of the township or county that are appropriate for the use, rather than allowing for WES in the entirety of the Agriculture district (some of which may have an agresidential character as compared to areas dominated by agricultural production). The overlay zoning approach can be used to craft predictable and transparent WES regulation and it can be tailored in many ways. In Huron County, as one example, WES are classified as a permitted use and the overlay district regulation details required studies, setbacks, sound standards, and site plan requirements. This approach offers an option to remove the discretionary standards common to the special land use process, such as "will be harmonious with the essential character or the area" or "will not be hazardous or disturbing' When conditions on a permit are tied to these types of broad discretionary standards, rather than putting the standards into the ordinance language, it can create a less predictable and potentially more inefficient process. 60
Definitions Add the following definitions to Section 503' (or the section of the zoning ordinance that defines words used in the ordinance).
A-WEIGHTED SOUND LEVEL means the sound pressure level in decibels as measured on a sound level meter using the A-weighting network, expressed as dB(A) or dBA.
60
ro County. (n.d.) Wind Facility Overlay DistrictZoning. Retrieved September 3,2020 from
61 This number system comes from the MSU Extension zoning ordinance codification system found here: https:!/www.canr.msu.edu/rcsources/oranization and codification of a zoning ordinance. A community should stick to their own numbering system.
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AMBIENT SOUND means the all-encompassing sound associated with a given environment, being usually a composite of sound from many sources near and far, as defined by ANSI S12.9 Part 3, current revision. ANEMOMETER TOWER means a freestanding tower containing instrumentation such as anemometers that is designed to provide present moment wind data for use by the supervisory control and data acquisition (SCADA) system which is an accessory land use to a utility-scale wind energy system. Also includes the same equipment for evaluating wind characteristics in preparation of or evaluation of construction of on-site wind energy system and utility-scale WES. ANSI means the American National Standards Institute. BACKGROUND SOUND means sound from all sources except the source of interest. dBA means the sound pressure level in decibels using the "A" weighted scale defined by ANSI. DECIBEL means a unit used to measure the intensity of a sound or the power level of an electric signal by comparing it with a given level on a logarithmic scale. END OF USEFUL LIFE means the end of the manufacturer's recommended useful life of the product, when lease or easements expire, the WES or parts of the WES are abandoned for 12 months or more, or power purchase agreements expire.
Commentary. The end of useful life provision provides direction to the next generation of planners as to what will happen in 20-30 years when a WES owner requests to re-tool (such as install new equipment to extend the life of the project), modify, or remove the project. [End of commentary] HEIGHT means the distance between the base of the wind turbine tower at grade to the tip of the blade at its highest reach. HORIZONTAL AXIS WIND TURBINE means a wind turbine that utilizes a main rotor shaft and electrical generator at the top of the tower and points into the wind for optimal operation. lEO means the International Electrotechnical Commission.
Commentary. The IEC is the leading global organization that prepares and publishes international standards for all electrical, electronic, and related technologies. [End of commentary] ISO means the International Organization for Standardization.
Commentary. ISO
is a network of the national standards institutes of 156 countries. [End of
commentary LAYDOWN AREA means a designated area where turbine components are temporarily stored prior to erection. A central laydown area may be used for the project or there may be several laydown areas. A laydown area may be used temporarily during construction or may be a permanent feature of the WES development. Leq means the equivalent average sound level for the measurement period of time. Ln, PERCENTILE-EXCEEDED SOUND LEVEL means the A-weighted sound pressure level which is exceeded by a specified percent of the time period during which a measurement is made, denoted as LXX and expressed as dBA. (For example a 10-Percentile-Exceeded Sound Level shall mean the Aweighted sound pressure level which is exceeded 10 percent of the time period during which a measurement is made, denoted as L10 and expressed as dBA. L90 denotes the sound level exceeded 90 percent of the time period.) Land U,c Series: Sample Zara ng for Wind Eneigy Systems
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PARTICIPATING PARCEL means one or more parcels under a lease or easement for development of a utility-scale WES. NON-PARTICIPATING PARCEL means a parcel for which there is not a signed lease or easement for development of a utility-scale WES associated with the applicant project. ROTOR means an element of a WES that acts as a multi-bladed airfoil assembly, thereby extracting through rotation, kinetic energy directly from the wind. ON-SITE WIND ENERGY SYSTEM (WES) means a land use for generating electric power from wind and is often an accessory use that is intended to primarily serve the needs of the consumer on-site or an adjacent property. SHADOW FLICKER means alternating changes in light intensity caused by the moving blade of a WES casting shadows on the ground and stationary objects, such as but not limited to a window at a dwelling. SOUND PRESSURE means the difference at a given point between the pressure produced by sound energy and the atmospheric pressure, expressed as pascals (Pa). SOUND PRESSURE LEVEL means twenty times the logarithm to the base 10, of the ratio of the root-mean-square sound pressure to the reference pressure of twenty micropascals, expressed as decibels (dB). Unless expressed with reference to a specific weighing network (such as dBA), the unit dB shall refer to an un-weighted measurement. UTILITY-SCALE WIND ENERGY SYSTEM (WES) means a land use for generating power by use of wind at multiple tower locations in a community and includes accessory uses such as but not limited to a SCADA Tower, electric substation. A utility-scale WES is designed and built to provide electricity to the electric utility. VERTICLE AXIS WIND TURBINE means a wind turbine utilizing a vertical rotor shaft, these are often mounted the ground or a building and do not need to point into the wind to be effective. WES means wind energy system (see on-site WES and utility-scale WES). WIND SITE ASSESSMENT means an assessment to determine the wind speeds at a specific site and the feasibility of using that site for construction of a WES. WIND TURBINE means a group of component parts used to convert wind energy into electricity and includes the tower, base, rotor, nacelle, and blades.
62
Note: earlier versions of this document, described this concept as a lease unit. A "pool" or "pooled parcels" may also describe a group of parcels under lease or easement. Land UcScrics:Samplc Zoning for Wind Fnci'Sy.tcms
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General Provisions (On-Site WESlTemporary Towers) Add to Article 10 subpart 107 (on-site WES) and 108 (Temporary towers) 6 the following provisions for small WES and temporary towers as a use by right. That means a special use permit is not required. Permanent anemometers included as part of utility-scale WES are included in sections on utility-scale WES. 107. An on-site WES is a permitted or accessory use which shall meet the following standards: A. Designed to primarily serve the needs of a home, agriculture, or small business or to test wind or other environmental conditions in the area for a period not to exceed 3 years from the date the permit is issued. Commentary: A way to differentiate between on-site and utility-scale WES is height or electrical generation capacity of the generators. Due to changes in efficiency and technology, it is recommended to use height rather than rated capacity to classify on-site WES in a zoning ordinance. Height in this sample ordinance refers to the tower height plus the length of the blade at its highest reach. On-site WES tower heights generally range between 30 to 70 feet. Nearby trees may require an increase in the tower height to adequately capture the wind resource. Not all on-site WES are on towers, smaller systems are often mounted directly to the peak of a building or other structure, such as a pole. Larger on-site WES between 70 to 120 feet could be used to serve more energy intensive principal uses, such as agricultural operations. A community may choose to designate these taller systems as a special land use and may exempt smaller, mounted systems from requiring a zoning permit as shown below. [End of commentary] B. Height: Total height for on-site WES shall not exceed
[for example: 66, 90, or 120] feet.
C. On-Site System Exception: On-site WES mounted to existing structures (such as a roof or pole) [for example: 8] feet or less above the highest point of the structure are exempt from that extend this zoning ordinance. D. Property Setback: The horizontal distance between the base of an on-site WES and the owner's [for example: 1.1] times height. No part of the WES structure, property lines shall be no less than including guy wire anchors, may extend closer than [for example: 25] feet to the owner's property lines, or the distance of the required setback in the respective zoning district, whichever results in a greater setback. Commentary: The property setback for on-site systems is intended to protect neighbors from potential noise and/or in the unlikely event of a tower failure. A setback relative to the height as opposed to the same setback distance for all property (such as 50 feet) helps to maintain an appropriate relationship between the height of the on-site system and the subject property. Due to the wind resource, trees, topography, lot size, and many other factors, some properties will be more well-suited to on-site WES - The turbine setback must have a rational basis and purpose, that protects health, safety, and welfare. Review the local zoning setbacks for on-site television antennas/Wi-Fi towers - a similar setback rule for on-site WES may be appropriate. [End of commentary] E. Sound Pressure Level: The audible sound from an on-site WES shall not exceed minute) at the [for example: property line or dwelling] closest to the WES.
dBA L_
63
L-
This number system shown here comes from the MSU Extension zoning ordinance codification system found here: https:!/wwv.canr.msu.edufresources/oraniation and codification of a :oning ordinance. A community should stick to their own numbering system. Land UscSencs:SampkZozungfor Wind EnagySystcms
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For example (above) the audible sound from an on-site WES shall not exceed dBAi,q (10 minute) at the property line closest to the WES. Manufacturers of on-site turbines provide a maximum predicted sound level as part of the documentation given to the owner or installer. A zoning administrator can ask for this information upon application to verify sound levels will meet the regulation. It is unlikely that the owner of the on-site WES will be able to afford a detailed sound study, like those required of a utility-scale WES. The manufacturer's predicted sound level is important documentation to keep in the file should a complaint arise. In the event that two or more on-site systems are requested for the same property, additional detail may be needed from the manufacturer to obtain the cumulative sound level contributed by more than one turbine. [End of commentary] Commentary:
F.
Construction Codes, Towers, and Interconnection Standards: On-site WES towers shall comply with all applicable state construction and electrical codes and local building permit requirements. An interconnected on-site WES shall comply with Michigan Public Service Commission and Federal Energy Regulatory Commission standards. Off-grid systems are exempt from this requirement.
G. Aviation and Airports: Where applicable, on-site WES shall comply with Federal Aviation Administration requirements, the Michigan Airport Zoning Act (Public Act 23 of 1950, MCL 259.431 at seq.), the Michigan Tall Structures Act (Public Act 259 of 1959, MCL 259.481 at seq.), and local jurisdiction airport overlay zone regulations.
Commentary: Structural and electrical safety issues are addressed by reference to these other codes. Depending on the height of the tower and distance to the airport, FAA, Michigan Tall Structures, and/or local airport zoning permits may not be required. [End of commentary] H. Safety: An on-site WES shall have automatic braking, governing, or a feathering system to prevent uncontrolled rotation or over speeding. All wind towers shall have lightning protection. If a tower is supported by guy wires, the wires shall be clearly visible to a height of at least six feet above the guy wire anchors. 1.
[for example: Ground Clearance: The minimum vertical blade tip clearance from grade shall be 20] feet for a horizontal axis wind turbine 64 . Vertical axis wind turbines are exempt from this ground clearance provision, but sufficient clearance should be maintained for the safety of people, animals, machinery, or others that may traverse under or near the vertical turbine.
108. Temporary Towers (temporary anemometers for wind testing, bat testing towers) A Height: Temporary anemometers or other temporary testing towers (such as for bat studies) shall not exceed feet [for example: 200]. B Setback: The horizontal distance between the base of a temporary anemometer tower and the owner's property lines shall be no less than - [for example: 1.1] times height. No part of the tower structure, including guy wire anchors, may extend closer than - [for example: 25] feet to the owner's property lines, or the distance of the required setback in the respective zoning district, whichever results in a greater setback. C
Construction Codes, Towers, and Interconnection Standards: Temporary towers shall comply with all applicable state construction and electrical codes.
D Aviation and Airports: Where applicable, temporary anemometers shall comply with Federal Aviation Administration requirements, the Michigan Airport Zoning Act (Public Act 23 of 1950, MCL 259.431 etseq.), the
Rynne, S., Flowers, L., Lantz, E.,& Heller, B. (ed.) (2011). Planning for Wind Energy. American Planning Association, Planning Advisory Service Report Number, 566. https:I/wv.plannins.or/pub1icationsircport/9026890/ 64
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Michigan Tall Structures Act (Public Act 259 of 1959, MCL 259.481 et seq.), and local jurisdiction airport overlay zone regulations. E
Performance Guarantee: The Planning Commission shall obtain a performance guarantee for a temporary anemometer or other temporary tower in an amount sufficient to guarantee removal of the tower at the end of three years. The performance guarantee shall be obtained in compliance with Section of this ordinance.
Commentary: It is typical for a developer to test the wind resource for a year or more in an effort to determine if an area is well-suited for wind development. More than one tower may be necessary. Wind testing is done by using temporary towers to record wind speeds and directions at higher heights. In Mason County, a temporary bat tower was also erected to monitor bat activity prior to submittal of a WES application 65 . [ End of commentary]
Resolution Approving Utility Grid Wind Energy System, Special Land Use, Part B (12) Impacts on Bird and Bat Species: Study Required, https:i/www.nasoncounty.ncdcpartincnts/zonin/lakc.winds-cneri-park.hrrnl
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I MS[I Exicnsion I October 6, 2021)
Special Use Standards Add a section to Article 16 (the part of the zoning ordinance for specific special use permit standards) to regulate utility-scale wind energy system (WES) which may include Anemometer Towers accessory to the proposed Utility-Scale WES. 1609 Utility-Scale WES (including permanent Anemometer Towers accessory to the project). A. Setbacks: 1. An Anemometer Tower shall be setback a distance equal to a property line or road right-of-way.
[for example: 1.1] times height from
2. A wind turbine setback shall be measured from - [for example: the closest point of the base of the wind turbine to the [property line] or [inhabited structure]] and shall not exceed: Road right of way: A horizontal distance equal to - [for example: 1.1 or 1.5] times the height or feet [for example 500] from the edge of the road right-of-way, whichever is greater; ii.
Non-participating parcels: A horizontal distance equal to - [for example: 1,300 feet or 3 times height] from the [property line] or [dwelling];
iii.
Participating parcels: A horizontal distance equal to [for example: 1,l0O feet or2.5times height (something less than 2. ii above) from the [property line] or [dwelling];
Commentary:
Deciding whether setbacks are measured to a property line or a dwelling is a common issue when crafting a zoning ordinance for WES. Some communities use setbacks to dwellings or inhabited structures, others use setbacks to property lines, and some use a combination of both (See Appendix A: Wind Turbine Noise for more information on setbacks). When using both, there may be a setback to a dwelling for a participating parcel and a setback to a property line for a non-participating parcel. In Michigan, wind development has generally occurred in areas with around 2 to 2.5 times height or 1,000 to 1,250 foot setbacks to a dwelling or property line. Geographic Information Systems (GIS) can be a helpful tool to model various setbacks from roads, property lines, dwellings, and natural features (lakes, rivers, natural areas). Seeing how setback distances change the viability or the density of a WES can help a Planning Commission determine a point at which a combination of setbacks would allow for, or potentially exclude, wind energy development. Setback to property line or dwelling:
Participating and non-participating properties: Property owners that enter into a lease or easement agreement with a wind energy developer are referred to here as participating properties. Those that were asked but declined, or those that were never approached, are nonparticipating. It is important to remember that not all properties that are impacted by a WES will have been approached about signing a lease or easement. This is certainly the case for properties lying just outside the boundaries of the wind development. With this in mind, some communities adopt separate standards for each type of property, with more restrictive standards applied to non-participating properties and that approach is used here (Appendix A: \tvind Turbine Noise, Table 1: Utility-Scale Wind Energy Zoning Regulation Comparison in Michigan). The purpose for doing so is to further minimize nuisance for those not receiving compensation from the wind energy development and create an incentive for developers to work with property owners in the vicinity of the project.
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Setback distances vary: Setback distances vary among Michigan communities and other Midwestern states (Appendix A: Wind Turbine Noise, Table 2: Comparison of Midwestern State
Standards Regulating Wind Energy Development). Land use patterns and parcel sizes in the area can impact local regulation. In many parts of Europe where land use controls and patterns restrict residential development in rural areas, 500 meters (1,640 feet) to 1,000 meters (3,280 feet) for a setback is common. The Canadian province of Ontario starts at a 550 meters (1,804 feet) and the setback increases with wind turbine sound power and the number of turbines within 3 kilometers (1.86 miles),". In Michigan and nearby Midwestern states where a system of roads bordering one mile sections are common, the constraints on development are different. This is where the use of GIS can be helpful in Michigan to illustrate local opportunities or constraints. Setback to roads and other infrastructure: In addition to setbacks to road right of way
(ROW), some communities adopt setbacks to railroads, major gas lines, and electrical transmission lines, such as 1.1 times turbine/tower height. In the absence of these additional setbacks, the location of transmission lines and railroads should be shown on site plans and communication between the developer and major utilities/railways can be facilitated through the site plan review process. [End of commentary] 3. A Wind Turbine is not subject to property line setbacks for common property lines of two or more participating parcels, except road right-of-way setbacks shall apply. [this is the height standard B. Height: WES are not subject to height limitations found in Section applied to buildings and signs in the zoning district, such as a maximum of 30' or 40'].
Commentary: Modern utility scale wind turbines include a tower (90 to 110 meters) and blades (45 to 55 meters) for a total height of about 440 to 550 feet. Generally, wind turbines are getting taller and more powerful. Where a single turbine might have produced 1.4 megawatts (MW) in the early 2000s, a modern onshore wind turbine can produce 2.5 to 3 MW. Using this example, building a 100 MW wind farm two decades ago would require about 70 turbines. In 2020, 33 to 40 turbines would be needed to produce the same amount of energy. If a community limits turbine height to 200,300, or even 400 feet, they may be excluding modern utility-scale wind development and/or creating an incentive to site more, smaller turbines. [End of commentary] C. Accessory Uses: An Operations and Maintenance Office building, a sub-station, or ancillary equipment shall comply with property setback requirements of the respective zoning district. Overhead transmission lines and power poles shall comply with the setback and placement requirements applicable to public utilities. D. Laydown Area: A centralized temporary laydown area for wind turbine component parts and other related equipment shall comply with property-setback requirements of the district and be detailed in the application. E. Sound Pressure Level: The sound pressure level shall not exceed the following: dBA L_ L-minute) 1. Non-participating property: Sound from a WES shall not exceed [dwelling] or [property line] of a non-participating property. If the average measured at the Summary of Wind Energy Policies by Country (2012) Minnesota Environmental Review of Energy Projects, Minnesota Department of Commerce, http:!/mn.gov!eera; Ontario Environmental and Energy. (nd.). Chapter 3: Required setbacks for wind turbines. In Technical Guide to Renewable Encsgy Approvals. turbines/$ Land U.sc Series: SanipkZonuigfor Wind Ene ty Systems I C)Michigan State U;uvercity Board of Trustees I MSU Extciision I ()ctober6, 2020 Page 26 of 49
background sound pressure level exceeds - dBA L_ L-minute) the standard shall be background sound dBA plus [for example: 5 or 10] dBA. 2. Participating property: Sound from a WES shall not exceed dBA L_ L-minute) measured at the [dwelling] or [property line] of a participating property. If the average background sound pressure level exceeds - dBA L_ L-minute) the standard shall be background sound dBA plus - [for example: 5 or 10] dBA. 3. Sound measurement methodology: Sound pressure level measurements shall be performed by
a third party, qualified professional selected by the developer and approved by the Planning Commission. Testing shall be performed according to the procedures in the most current version of ANSI S12.18 and ANSI S12.9 Part 3. All sound pressure levels shall be measured with a sound meter that meets or exceeds the most current version of ANSI S1.4 specifications for a Type II sound meter. 4. Post-construction sound survey: A post-construction sound survey shall commence within the
first year of operation to document levels of sound emitted from wind turbines. The study will be designed to verify compliance with sound standards applicable to this ordinance. The WES owner shall provide SCADA data during the testing period to the sound consultant completing the study.
Choosing a regulation and methodology for post-construction sound compliance testing should involve an acoustic consultant with a background in wind turbine noise compliance testing. The testing methodology should be related to the regulation and public purpose and be detailed enough that if two acousticians are tasked with compliance testing at the same location at the same time, they would end up with similar results. If the ordinance provides no detail on how the testing will be performed, the details will have to be negotiated at a later date. An acoustic consultant can provide details and recommendations on the most recent methodologies (such as using attended and unattended measurement), number of testing locations, times of day/night, and data needed to determine compliance. The detail required and necessary tailoring to the regulation precludes a full outline of compliance testing methodology here. See Mason and Huron County's ordinances in the Michigan Zoning Database. [End of commentary] Commentary:
F. Safety: Utility-scale WES shall be designed to prevent unauthorized access to electrical and
mechanical components and shall have access doors that are kept securely locked at all times when service personnel are not present. All spent lubricants and cooling fluids shall be properly and safely removed in a timely manner from the site of the WES. A sign shall be posted near the tower or Operations and Maintenance Office building that will contain emergency contact information. A sign shall be placed at the road access to a wind turbine to warn visitors about the potential danger of [for example: 201 feet falling ice. The minimum vertical blade tip clearance from grade shall be for a WES employing a horizontal axis rotor. G. Construction Codes, Towers, and Interconnection Standards: Utility-scale WES shall comply
with all applicable state construction and electrical codes and local building permit requirements. H. Pre-Application Permits: Utility-scale WES shall comply with applicable utility, Michigan Public
Service Commission, Federal Energy Regulatory Commission interconnection standards, FAA requirements, and tall structures requirements, including but not limited to: 1. Aviation and Airport
Michigan Department of Energy, Great Lakes, and Environment. (2019). Michigan Zoning Database (April 1, 2019) [Data set]. 519951-,00.htm1 Land U.e Series: SampleZonthgforVindEnc:jSysterns
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Federal Aviation Administration (FAA) requirements. The minimum FAA lighting standards shall not be exceeded. The lighting plan submitted to the FAA shall include an Aircraft Detection Lighting System (ADLS) for the utility-scale WES. The tower shaft shall not be illuminated unless required by the FAA. ii.
Michigan Airport Zoning Act (Public Act 23 of 1950 as amended, MCL 259.431 et seq.).
iii.
Michigan Tall Structures Act (Public Act 259 of 1959 as amended, MCL 259.481 et seq.).
iv.
Local jurisdiction airport overlay zone regulations.
Commentary: For additional commentary on FAA standards and Aircraft Detection Lighting
Systems (ADLS) see "FAA lighting" in Appendix C: Shadow Flicker, FAA Lighting. [End of commentary.] 2. Environment: The application will demonstrate mitigation measures to minimize potential impacts on the natural environment including, but not limited to wetlands and other fragile ecosystems, historical and cultural sites, and antiquities, as identified in the Environmental Analysis. The application shall demonstrate compliance with: Michigan Natural Resources and Environmental Protection Act (Act 451 of 1994, MCL 324.101 et seq.) (including but not limited to: Part 31 Water Resources Protection (MCL 324.3101 et seq.), ii.
Part 91 Soil Erosion and Sedimentation Control (MCL 324.9101 et seq.)
iii.
Part 301 Inland Lakes and Streams (MCL 324.30101 etseq.)
iv.
Part 303 Wetlands (MCL 324.30301 et seq.)
V.
Part 323 Shoreland Protection and Management (MCL 324.32301 et seq.)
vi.
Part 325 Great Lakes Submerged Lands (MCL 324.32501 et seq.)
vii.
Part 353 Sand Dunes Protection and Management (MCL 324.35301 et seq.)
Commentary: Environmental issues are complex. These guidelines identify areas that should be
addressed in an Environmental Impact Assessment, but do not specify how the assessment should be conducted. Site specific issues should determine which issues are emphasized and studied indepth in the assessment. There are a number of state and federal laws that may apply depending on the site. [End of commentary] 3. Avian and Wildlife Impact: Site plan and other documents and drawings shall provide mitigation measures to minimize potential impacts on avians and wildlife, as identified in the Avian and Wildlife Impact analysis. i.
The application shall demonstrate consultation with the U.S. Fish and Wildlife Service's Land-Based Wind Energy Guidelines.
ii.
Applicants must comply with applicable sections of the Federal Endangered Species Act and Michigan's endangered species protection laws (NREPA, Act 451 of 1994, Part 365).
iii.
The applicant or the applicant's impact assessment must show consultation with the U.S. Fish and Wildlife Service regarding federally listed species and the Michigan Department of Natural Resources for state listed species. Early coordination with state and federal agencies is recommended.
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Commentary: Wind turbines do kill birds in some areas, but they are not a major contributor to bird mortality. According to research published in 2015, an estimated 234,000 birds were killed annually in the US from wind turbines. This is below other causes of direct bird mortality, including communication towers (6.6 million), building collisions (599 million) and cats (2.4 billion)." This sample zoning requires an Avian and Wildlife Impact Analysis but does not specify how the analysis should be conducted. Site specific issues should determine which issues are emphasized in the analysis. To assist applicants to minimize, eliminate, or mitigate potential adverse impacts, the U.S. Fish and Wildlife Service has developed the Land-Based Wind Energy Guidelines (2012)7' If the local government desires more structure to the analysis requirements, the Potential Impact Index developed by the U.S. Fish and Wildlife Service provides a framework for evaluating a project's impact on wildlife. [End of commentary] H. Performance Security: Performance security, pursuant to Section of this Ordinance, shall be provided for the applicant to make repairs to public roads damaged by the construction of the WES. In lieu of a performance security agreement with [County or Township], the applicant may enter into a road use agreement with the - County Road Commission to cover the costs of all road damage resulting from the construction of the WES. Commentary: Many ordinances defer to the County Road Commission to enter into a separate road use agreement with the developer or project owner because public roadways in Michigan are under the jurisdiction of Michigan Department of Transportation or the County Road Commission. A road use agreement typically specifies a performance guarantee, detailed documentation/videos/photos of roadway condition before and after construction, road intersection modifications to accommodate the enlarged turning radius associated with turbine component transport, and more. The local Road Commission should provide feedback on this ordinance provision to help shape a regulation around performance guarantees for public road repairs. [End of commentary] 1. Utilities: Electric transmission lines extending from a wind turbine to a sub-station should be placed underground to a minimum depth of feet to allow for continued farming and existing land use operations in the vicinity of the WES, and to prevent avian collisions and electrocutions. All other above-ground lines, transformers, or conductors should comply with the Avian Power Line Interaction Committee (APLIC) published guidelines72 to reduce avian mortality. J. Visual Impact: Utility-scale WES projects shall use tubular towers and all utility-scale WES in a project shall be finished in a single, non-reflective, matte finish, color approved by the Planning Commission. A project shall be constructed using WES components (tower, nacelle, blade) of similar design, size, operation, and appearance throughout the project. An area of - square feet or [for example: 5] percent of the nacelle [on one or two sides] may be used for a sign, such as for turbine identification or other insignia. The applicant shall avoid state or federal scenic areas and significant visual resources listed in the local unit of government's Master Plan.
Breining. Greg (2020) Power or Prairie? It doesn't have to be an either/or. Living Bird, Cornell Lab of Ornithology. 65. Loss, S., Will, T. & Marra, P. (2015). Direct Mortality of Birds from Anthropogenic Causes. Annual Review of Ecology. Evolution and Systematics, 46, 99-120. 71 U.S. Fish and Wildlife Service. (2012). U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines. https:'!www.fvs.ov/ecologica1services/es-1ihrarv/pdfs/\VEG Einal.pdf Avian Power Line Interaction Committee & US Fish and Wildlife Service. (2005). Avian Protection Plan (APP) Guidelines. https://vvw.aplic.org/up1oads.ilcs/2634/APPguidclincs final draft Apr12005.1)df -
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Commentary: These guidelines try to address visual impact issues by providing some design standards around color and finish and by limiting commercial advertising. Allowing for signage on a turbine is optional; the content of a small identification sign on a turbine (letters, numbers, logos, corporate insignia) cannot be dictated by the zoning ordinance and are protected by the P Amendment .71 [End of commentary K. Shadow Flicker: Shadow flicker shall not exceed [for example: 30] hours per year and/or [for example: 30] minutes per day measured to the exterior wall of a dwelling or other occupied building on a non-participating parcel. Mitigation measures to minimize or eliminate potential impacts from shadow flicker, as identified in the Shadow Flicker Impact Analysis for human-occupied structures, shall include, but not be limited to: 1. Change the proposed location of the wind energy tower; or 2. The utility-scale WES shall be turned off by manufacturer approved automated system during the period of time an inhabited structure receives shadow flicker; or 3. The utility-scale WES shall be turned off during flicker events after flicker on an inhabited structure; or
hours/year of shadow
4. There is screening (forest, other building(s), topography, window treatments/blinds) which shields the inhabited structure from a direct line of sight to the rotors causing shadow flicker.
Commentary: See Appendix C: Shadow Flicker. I End of commentary] L.
llicicr. lA.\
Lighting for more information on Shadow
Signal Interference: No utility-scale WES shall be installed in any location where its proximity to existing fixed broadcast, retransmission, or reception antennae for radio, television, or wireless phone or other personal communication systems would produce interference with signal transmission or reception unless the applicant provides a replacement signal to the affected party that will restore reception to at least the level present before operation of the WES. No utility-scale WES shall be installed in any location within the line of sight of an existing microwave communications link where operation of the WES is likely to produce electromagnetic interference in the link's operation.
M. Decommissioning: A planning commission approved decommissioning plan indicating 1) the anticipated life of the project, 2) the estimated decommissioning costs net of salvage value in current dollars, 3) the method of ensuring that funds will be available for decommissioning and restoration, 4) the anticipated manner in which the project will be decommissioned and the site restored, and 5) the review of the amount of the performance guarantee based on inflation and current removal costs to be completed every [for example 3 or 5] years, for the life of the project, and approved by the ________ [legislative body] board.
Commentary: A periodic review of the amount required to remove the system (such as every 3 to 5 years) will ensure adequate funds are available to cover decommissioning costs 20 to 30 years down the road. A review might also he triggered by a change of ownership, for example. The ordinance should specify which body is responsible for approving the amount of the performance guarantee; the planning commission could recommend an amount with the legislative body making the final decision. A community could review how performance guarantees are handled for other types of developments, such as landscaping guarantees, and discuss how this could be similar or require a higher level of review. [End of commentary]
73 Reed, era! v. Town of Gilbcrt, AZet at, 135 S. Ct. 2218, 576 U.S. _(2015) Land Use Series: Sample Zoning for Wind Energy Systcms
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N. Complaint Resolution: A complaint resolution plan shall be presented to the planning commission and approved prior to approval of a special land use permit. The complaint resolution program will describe how the developer receives, responds, and resolves complaints that may arise from the operation of the WES. The complaint resolution plan shall include appropriate timelines for response and other detailed information (such as forms, and contact information). As a condition of filing a complaint, a landowner must allow the staff or designated agents and WES owner or agents on the subject property for further investigation. 0. Annual Maintenance Review: The WES shall be maintained and kept in a safe working condition. The WES owner shall certify on an annual basis that all turbines are operating under normal conditions. Non-operational turbines at the time of the annual review, shall be identified and provided an expected date to resolve the maintenance issue. A wind turbine generator that has not been operational for over 12 months shall be considered abandoned and a violation of the special land use permit. P. End of Useful Life: At the end of the useful life of the WES, the system owner: 1. Shall follow the decommissioning plan approved by the Planning Commission under Section [from local government ordinance] and remove the system as indicated in the most recent approved plan; or, 2. Amend the decommissioning plan with Planning Commission approval and proceed with P.1 above; or, [local unit of government] reserves the right to approve, deny, or modify an application 3.The to modify an existing WES at the end of useful life, in whole or in part, based on ordinance standards at the time of the request. Expenses for legal services and other studies resulting from an application to modify or repower a WES will be reimbursed to the _______ [local unit of government] by the WES owner in compliance with established escrow policy. Commentary: There are many scenarios that could occur at the end of useful life of a WES, other than decommissioning and removal. In Minnesota, several projects 74 constructed in the late 1990s or early 2000s are being repowered with new wind turbines". For the Jeffers Wind Energy Center Repower Project in Minnesota, 2.5 MW turbines are being replaced with a 2.2 MW turbines. There are no examples in Michigan, to date, of repowering or replacing an existing WES. During the initial special land USC permit review, a municipal attorney could help to frame a process for a request to repower or modify the proposed WES at the end of useful life. [End of commentary]
Minnesota Department of Commerce. (n.d.) Wind Turbines, Open Projects. Environmental Review of Energy Projects. Retrieved September 3. 2020 from https://mn.gov/commerce/encmyfacili ticsturhine Minnesota Department of Commerce. (nd.) Jeffers Wind Repowering Project. Environmental Review of Energy Projects. Retrieved September 3, 2020 from https:iimn.ov/ccraiwcbprojcct/13517' Land U.cc Series: SampleZoningfor Wind Enesgy Systems I ONfichigan State University Board of Trustees I MS[1 Extcnsion I (kcobcr6, 2020 Page 31 of 49
Site Plan Review Add a section to Article 94 (the part of the zoning ordinance covering what is included in a site plan) to include additional items which should be shown on a site plan, and included in supporting documents for utility-scale WES, which may also include permanent anemometer towers. 9408. Site Plans for Utility-Scale WES. Commentary: Site Plan required (at the time of application): As indicated earlier, this sample is written
with the assumption that site plans are already a requirement in the zoning ordinance. Further, that the site plan and/or permit application requires basic information such as parcel identification including property boundaries, scale, north point, natural features, water bodies, location of structures and access drives (existing and proposed), neighboring drives, buildings, etc., topography, existing and proposed utilities, landscaping, buffering features, soils data, and so on. Scale/Format Modifications: The applicant is required to produce site plans and studies that
are both readable and useable for the staff, Planning Commission, and the public. It is reasonable to request large-scale composite maps (such as on a 36-inch x 48-inch format) of the entire project and more detailed site plans (such as 1:100 or 1:200 scale) for each wind turbine or grouping of turbines. Participating and non-participating parcels should be identified on the composite maps (especially when an ordinance requires different standards for these two groups). Some communities have minimum Site plan requirements (such as a 1:100 scale) that may need to he amended to accommodate these unique, large-area projects. Obtain all other permits first: Most zoning ordinances require (and if they don't, it is a best practice) that all other applicable permits he obtained prior to submission of the site plan, or at least the site plan will include the same information that will be required by other agencies for review. This includes local airport zoning permits. Michigan Tall Structures, FAA, and U.S. Fish and Wildlife/MDNR consultation for avian and bat studies. Fees/Escrow: Application fees and a site plan review fee may need to be modified to cover the
cost of review for a Utility Scale WES. The work is substantially more time consuming than a typical application on which most fees are based. A revised fee schedule must be adopted by the legislative body of the local unit of government. In addition, many communities have an escrow deposit system to cover costs of more involved special use permit reviews. As with all fees, the amount must be set by the legislative body to cover anticipated actual cost of the application review and not more. [End of commentary] Site plans and supporting documents for permanent Anemometer Tower or utility-scale WES shall include the following additional information: A. Documentation that construction code, tower, interconnection (if applicable), and safety requirements have been reviewed and the submitted site plan is prepared to show compliance with these issues as applicable: 1. Proof of the applicant's public liability insurance for the project. 2. A copy of that portion of all the applicant's lease(s) with the land owner(s) granting authority to install the Anemometer Tower and/or utility-scale WES; legal description of the property(ies). 3. The construction schedule including details of all phases. Land 1I.ccSo*.c:SarnpkZonrngfor Wind EncrgySysrem.c
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4. Participating and non-participating parcels within the project area boundary and non-participating parcels extending a quarter-mile beyond the edge of the project boundary. 5. The location, height, and dimensions of all existing and proposed structures and fencing. 6. The location, grades. and dimensions of all temporary and permanent roads from the nearest county or state maintained road. 7. The location, grade, and dimension of all temporary or permanent laydown areas for turbine component parts (if in a central location).
8. All new infrastructure above ground related to the project. 9. A copy of Manufacturers' Material Safety Data Sheet(s) which shall include the type and quantity of all materials used in the operation of all equipment including, but not limited to, all lubricants and coolants. B. Sound Modeling Study: A copy of a predictive noise modeling and analysis report showing sound levels at various distances. The modeling must show compliance with sound standards applicable to this ordinance. The modeling study shall use turbine locations identical to the site plans submitted with this application. The analysis will show that the WES will not exceed the permitted sound pressure levels under any conditions. The noise modeling and analysis should utilize the methods outlined in ISO 9613-2 (or most recent version), including sound power levels determined using lEO 61400-11. Commentary: Maps of sound modeling isolines are effective in showing anticipated sound levels and can be shared with the public early in the process. Predicted sound is usually expressed in 35, 40, 45, 50 cIBA intervals. With the use of GIS both sound and Bicker maps can he overlaid on a parcel layer map and shared with the public. [End of commentary]
C. Transportation Plan: A detailed road modification plan to accommodate delivery of components of the WES along existing and proposed roads and return of those roads and adjacent lands to their original condition after construction. D. Visual Impact Simulation and Materials: A visual impact simulation showing the completed WES from multiple angles, locations and scales. The simulation should show the non-reflective, low-gloss finish of a finished turbine and be a neutral color such as white, off-white, or gray. The application shall include a sample of finished component materials to demonstrate finish and color of wind turbine components. E. Environment Analysis: An analysis by a third party qualified professional shall be included in the application to identify and assess any potential impacts on the natural environment including, but not limited to wetlands and other fragile ecosystems, historical and cultural sites, and antiquities. The analysis shall identify all appropriate measures to minimize, eliminate or mitigate adverse the impacts identified and show those measures on the site plan, where applicable. The applicant shall identify and evaluate the significance of any net effects or concerns that will remain after mitigation efforts. F. Avian and Wildlife Impact Analysis: The application shall include an Avian and Wildlife Impact Analysis by a third party qualified professional to identify and assess any potential impacts on wildlife and endangered species. The applicant shall take appropriate measures to minimize, eliminate or mitigate adverse impacts identified in the analysis, and shall show those measures on the site plan. The applicant shall evaluate the significance of any net effects or concerns that will remain after mitigation efforts. The analysis must show consultation and evaluation based on applicable U.S. Fish and Wildlife Service Land-Based Wind Energy Guidelines (2012 or latest version).
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1. At a minimum, the analysis shall include a thorough review of existing information regarding species, potential habitats, and sites requiring special scrutiny (such as endangered or threatened species habitat or other known special habitat) in the vicinity of the project area. Where appropriate, surveys for bats, raptors, and general avian use should be conducted. The analysis shall include the potential effects on species listed under the federal Endangered Species Act and Michigan's endangered species protection laws (NREPA, Act 451 of 1994, Part 365). 2. The analysis shall indicate whether a post construction wildlife mortality study will be conducted and, if not, the reasons why such a study does not need to be conducted. G. Shadow Flicker Study: The application shall include a shadow flicker analysis extending [for example: 5,280] feet or [for example: 20] times the rotor diameter (whichever is less) from proposed wind turbine generator locations. The study shall indicate all modeling assumptions. The site plan and study shall describe the predicted annual amount of flicker on inhabited structures on non-participating properties impacted by shadow flicker. The study shall detail one, or more mitigation strategies to comply with the hour per year regulation. Commentary: A community can require a shadow flicker analysis tailored to their regulation.
Shadow flicker modeling can produce a very detailed, predictive analysis for each inhabited structure. Some communities find that having detailed shadow flicker modeling data is important when responding to flicker complaints or undertaking enforcement efforts. See Shadow Flicker in Appendix C: Shadow Flicker, FAA Lighting. [End of commentary] H. Decommissioning Plan: A decommissioning plan shall be included in the site plan application. I.
Complaint Resolution Plan: The application shall include a description of a complaint resolution process including forms, phone numbers, and timelines for complaint referral, response, and resolution. The plan must be approved by the Planning Commission. Commentary: A complaint resolution plan or regulation is optional. The benefit of requiring a Plan is that it provides a pro-active measure to anticipate issues from the WES, such as with shadow flicker or unexpected changes in television reception. A complaint resolution plan as part of the site plan documentation a) assists landowners/local unit of government/WE S owner with the details and methods needed to submit a complaint b) allows the local unit of government and the system owner to work out a shared agreement on expected timelines for resolution and c) allows the community and system owner a way to track complaints from start to finish. Some may view this as unnecessary because if the complaint stems from a zoning violation, then it falls on the local unit of government to enforce the regulation. If the complaint is not a zoning violation, then it should not be regulated here. Another concern is that the complaint resolution requirement is arbitrary, particularly if wind energy is the only special land use with a complaint resolution requirement. [End of commentary]
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Authors This publication was developed in collaboration by: • Bradley Neumann, AICP, Senior Educator, Michigan State University Extension, Government and Community Vitality • Mary Reilly, AICP, Educator, Michigan State University Extension, Government and Community Vitality Reviewers to this 2020 version include: • Jeff Smith, Director/Zoning Administrator/Building Official, Huron County Building and Zoning. • Sarah Banas Mills, Ph.D., Senior Project Manager, Ford School of Policy and Graham Sustainabthty Institute, University of Michigan • Mike Hankard, (only acoustic content), Hankard Environmental, Inc. • Brian Ross, AICP, LEED Green Associate, Senior Program Director, Great Plains Institute • Tyler Augst, Educator, Michigan State University Extension, Government and Community Vitality Reviewers and Authors of prior versions of this document: • (Author) Kurt H. Schindler, AICP, Distinguished Senior Educator (past author; retired), Government and Public Policy • Wendy Walker, Esq., [former] Educator, Government and Public Policy • Richard M. Wilson, Jr. Esq. Mika Meyers, PLC. Manistee, Michigan • David Ivan, Ph.D., Director for Community, Food and Environment Institute of MSU Extension. • Ken Kaliski, (only on acoustic content) Senior Director, Resources Systems Group (RSG) Inc. • John Sarver, Energy Office (retired), Michigan Dept. of Labor and Economic Growth • Mark Wyckoff, FAICP, Professor (retired), MSU Land Policy Institute To find contact information for authors or other MSU Extension experts use this web page: httns://www.canr.msu.cdu/outreacWexnerts/. MSLT is an affim'iative-action, equal-opportunity, employer, committed to achieving excellence through a diverse workforce and inclusive culture that encourages all people to reach their full potential Michigan State University Extension programs and materials are open to all without regard to race, color, national origin, gender, gender identity, religion, age, height, weight, disability, political beliefs, sexual ol'ientation, marital status, family status or veteran status Issued in furtherance of MSU Extension work, acts of May S and June 30.1914, in cooperation with the U.S. Department of Agriculture. Jeffrey W. Dsyer, Director, MSU Extension, East Lansing, Nil 48824. This information is for educational purposes only. Reference to commercial products or trade names does not imply endorsement by MSU Extension or bias against those not mentioned. The name 4-H and the emblem consisting of a four-leaf dover with stem and the Hon each leaflet are protected under Title 18 USC 707.
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Appendix A: Wind Turbine Noise Wind Turbine Noise Noise issues can be a technically complex aspect of WES. Many planners, appointed officials, and elected leaders that have dealt with WES in Michigan find themselves trying to learn more about wind turbine noise, and quickly. What they may find is that the study of sound is highly technical and uses unfamiliar language. The purpose of this section is to provide background information on wind turbine noise and commonly used terminology that may be presented by citizens or sound experts. Setting a maximum sound level in an ordinance speaks to volume or loudness measured in decibels, but this is not the only characteristic of sound. Pitch, tone, and rhythm also characterize sound. Quiet, rhythmic sounds can be highly annoying (mosquito, dripping sink) and louder sounds can be quite enjoyable (waterfalls, music). Wind turbine noise can invite detailed regulation, often beyond a simple decibel level (such as 45 dBA). This is because the noise produced by wind turbines differs from other power generation facilities in how it is created, how it is propagated, and how it is perceived. 76 Measuring wind turbine sound is a unique and specialized field among acousticians and requires special attention when regulating WES. Regulation of noise, defined as unwanted sound or sound determined to be unpleasant, tends to focus on volume or sound pressure, expressed as a maximum decibel (dB) limit. Sound maximums shown as dBA mean that the sound is measured based on the A-frequency weighted scale, a scale that most closely represents what humans typically hear (the A-weighting scale mimics the fact that humans are more sensitive to higher frequency sound than to low frequency sound). It is most common for wind turbine ordinances to use the A-weighted scale, expressed in dB(A) or dBA. This sample ordinance uses the dBA scale with the goal of regulating audible sound. Infrasound (1 to 20 Hz) and low frequency (20 to 200 Hz) sound generated by WES may be a public concern. Questions may arise around using the dEC scale in regulation as the C-scale is better suited to measure low frequency sound. Communities that desire to regulate with the dEC scale (in addition to dBA) should only do so with the consultation of an acoustician experienced in measuring wind turbine noise.
Sound Studies and Standards There are documented health issues with excessive noise exposure from a range of different noise sources. Noise standards may consider the potential for bodily injury, long term health effects, interference with speech, sleep, and other activities. Many noise standards parallel the United States Department of Labor Occupational Safety and Health Administration (OSHA) workplace safety regulations. The 1974 standards from the United States Environmental Protection Agency (EPA) indicate that 55 dBA Ldn is too low to produce hearing loss or long-term health effects! 7 He1er, D. (2011). Best Practice GuidclincsforAsscssingSound Emissions from Proposed Wind Farms and Measuring Performanceof Completed Projects. Minnesota Public Utilities Commission. 76
https://www.michkzan.ovIdocuments/energv/MLUI9 NARUC 420200 7.pdf U.S. Environmental Protection Agency. 1978. Protective Noise Levels Condensed Version of EPA Levels Document.
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There have been no updated noise standards, such as for WES, published by any agency within the United States government since those 1974 standards (at a federal level). The World Health Organization (WHO), other nations, and states have published recommendations specific to WES or determined thresholds at which annoyance and/or health effects occur. Several studies have found statistical associations between high degrees of annoyance toward noise and self-reported health effects that include, but are not limited to, migraines, heart disease, diabetes, and hypertension. 78 In a 2019 study, researchers found that outdoor audibility of turbine sound was "overwhelmingly dependent on turbine sound level, [but] noise annoyance was best explained by visual disapproval" (p. 1124)! Meaning that wind turbine sound levels are not necessarily the strongest predictor of what causes annoyance from wind turbines. The Canadian government undertook a multi-year research study in 2012 carried out by Health Canada and Statistics Canada called the Wind Turbine Noise & Health Study "to explore the relationship between exposure to sound levels produced from wind turbines and the extent of health effects reported by, and objectively measured in, those living near wind turbines" (2014 para. 3). 10 The Health Canada study included survey results from 1,238 households in Ontario and Prince Edward Island living near wind turbines. Several peer-reviewed journal articles resulted from the study, one of which concluded at the highest wind turbine noise levels (40-46 dBA) 16.5% in the Ontario study and 6.3% in the Prince Edward Island study were very or extremely annoyed by the wind turbine noise."' Wind turbine noise is not the only factor that contributes to annoyance, other factors such as distance to turbines, changes to views, and monetary benefit have can increase or decrease in annoyance. 82 The 2018 World Health Organization (WHO) Environmental Noise Guidelines for the European Region provide a conditional recommendation 8' of 45 dBA (Lien) for wind turbine noise. The 2018 WHO guideline is specific to wind turbine noise and further states "To reduce health effects, the Guidance Development Group conditionally recommends that policymakers implement suitable measures to cs-&Ouerv-&Tme-&EndTime&Sech\1ethod-1&TocResrict-n&Toc-&TocEntry&OField=&OFieldYcar-&OFicldMo nth-&OFiddDav-&IntOFieldOp-0&ExtOFiedOp-O&XmlOuery-&File-D%3A%SCzvfiles%5Cladex%2OData%SC76thru8 0%5CTxt%5C0000008%5C20012HG5.tt&User=ANONYMOUS&Password"anonymous&SortMethod-h'Yo7C&MaxmumDocuments-1&FuzzyDegree=0&ImageOuar758/r758/xl50vl50g16/i425&Disp1av-hpfr&DefSeekPage.x& SerchEack-ZvActionL&Back=ZyActionS&BackDesc-Results'3b2Opage&MaxirnumPaes-1&ZvEntrv-1&SeekPae=x&ZvP URL Michaud, D.S., Keith, S.E., Feder, K & Voicescu, S.A. (2016). Personal and situational variables associated with wind turbine noise annoyance. Journalof the Acoustical Society of America, 139(3),1455-1466. htrps://doi.or10.112IJ1.4942390 79 Haac, R., Kaliski, K, Landis, M., Hoen, R., Rand, J., Firestone, J., Elliott, D. & Hubner. G. (2019). Wind turbine audibility and noise annoyance in a national U.S. Survey: Individual perception and influencing factors. The Journal of the Acoustical Society of America, 146,1124-1141. https://doi.org/10.112111.5121 309 Health Canada. (2014 May 10). Wind Turbine Noise. https:i/www.canada.ca/enlhca.lth-canadaiservices/hcakh-riskssafctv/radiation/cvcrvdav-things-emic-radiation/wind-turbine-noisc.htnil 81 Michaud, D.S., Feder, K., Keith, S.E., & Voicescu, S.A. (2016). Exposure to wind turbine noise: Perceptual responses and reported health effects. Journal of the Acoustical Society of America, 139(3), 1443-1454. http://dx.doi.org/10.112lJI.4942391. 82 Michaud, D.S., Feder, K., Keith, S.E., & Voicescu, S.A. (2016). Personal and situational variables associated with wind turbine noise annoyance. Journal ofthe Acoustical Society of America, 139(3),1455-1466. htrps://doi.orgf10.1121/1.4942390 8 ' World Health Organization. "Environmental Noise Guidelines for the European Region." 2018. Within the Guidelines, a "strong recommendation" can be adopted as policy in most situations. A conditional recommendation (as given for wind turbine noise) "requires a policy-making process with substantial debate and involvement of various stakeholders. There is less certainty of the efficacy owing to the lower quality of evidence of a net benefit ... meaning there may be circumstances or settings in which it will not apply" (p. 23). http://www.euro.who.int/en/iublicacions/abstracts/environmental-noiseguiddlines-for-the-european'reion-2018 Land Use Scrim Sample Zoningfor Wind EneySysrem.c 1 0 Michigan State University Board of Trustec.c I MSU Extension I October 6, 2020 Page 37of49
reduce noise exposure from wind turbines in the population exposed to levels above the guideline values for average noise exposure."
Sound Descriptors It is important to consider the sound descriptor and sound level together when writing regulation. The regulation should be based on current studies, such as the WHO recommendation, peer reviewed research, and other studies specific to wind energy such as the Health Canada" study. Sound descriptors are the way in which sound is quantified, analyzed, and described. Leq and 150 are the descriptors most commonly used for wind energy (Figure 1, Common Sound Descriptors). Some Michigan communities have adopted regulation using the Lmax descriptor, which is a different standard than L or other sound descriptors that average sound pressure over a period of time (such as 10 minutes or one hour). Lmax measures the instantaneous, loudest sound coming from a WES, such as within 1 second. Communities adopting a lower sound level maximum (40 dB or lower) in combination with an Lmax descriptor are adopting a standard that is not supported by long-term studies. By design, long-term noise studies that describe the impact of WES on health (sleep, annoyance) are based on descriptors that average sound (L, L&, or Lnight,outside which is the L over the entire night) and use measurements over the course of hours, days, and years—not seconds. Those seeking to regulate with Lmax descriptor should first consult with an acoustician and review Tuscola Wind III, LLC, v. Alnier Charter Township.
In addition, the commonly used ISO 9613-2 standard (Acoustics-Attenuation of sound during propagation outdoors) uses Leq to model predicted sound pressure level at a receiver in pre-construction sound studies, as does the IEC 61400-11 standard used to measure the noise output of a single turbine. Figure 1. Common Sound Descriptors dB means decibels. dBA means A-weighted decibels, relative loudness of sounds reducing low frequency sounds because the human ear is less sensitive to low audio frequencies. L means sound level. Ljo is the sound level that is exceeded 10% of the time. For 10% of the time, the noise has a sound pressure level above 110 Lso means the sound level exceeded 50% of the time. It represents the median sound level and is the statistical mid-point of the noise readings. L90 means the sound level that is exceeded 90% of the time. For 90% of the time, the noise is above this level. Lj is an equivalent sound level, day-night average, over a 24-hour period where a 10 dB penalty is added to nighttime sounds (10 pm to 7 am) La is an equivalent sound level, day-evening-night average, over a 24-hour period at the most exposed façade, outdoors; a 10 dB penalty is added to night time noise and 5 dB ' Health Canada. (2014). Wind Turbine Noise and Health Study. https://www.canada.caien/hcalch-canada/scrviccs/health-risks results.html Tuscola Wind III, LLC, v. Abner Charter Township, et al, US District Court, Eastern District of MI, Norther Division, Case No. 17-
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penalty is added to evening noise (7pm to 10pm). Lmax means the maximum sound pressure level associated with an individual noise event L0jt,0jd means the equivalent outdoor sound pressure level associated with a particular type of noise source during nighttime (at least 8 hours), calculated over a period of a year. Leq means equivalent sound level over a given period of time (e.g., one hour) - average of all sound. For example, Le q i hour is the average noise level over one hour. See: https://ww'¼v.fhwa.dot.gov/Environmentlnoise/resources/fhwahepl7O53.pdf
Sound Levels and Measurement When selecting a maximum sound level, a community should ask if it is defensible, reasonable, and supported by evidence or research. After a sound level is determined, it should be accompanied by a testing methodology that can verify compliance with the regulation. Huron County is one example approach with a detailed measurement methodology. 81 Mason County is another example approach. Wind turbine noise measurement for compliance purposes is a highly sophisticated endeavor requiting specific sound measurement equipment, a knowledge of complex mathematical calculations, and experience applying ANSI and ISO standards to measure wind turbine noise. Measuring noise from WES poses unique challenges different from measuring other kinds of noise. Relatively few acousticians have this expertise. A local enforcement official will not have the expertise or tools to measure wind turbine noise for making a determination of compliance or non-compliance. However, a local zoning enforcement officer may be an asset to help diagnose a complaint and inform the need for additional sound testing by an acoustic expert (often from out-of-state and at some expense). For example, some zoning administrators in Michigan have worked under the guidance of an acoustician to take short term measurements using a Type 1 sound level meter. These short-term measurements helped to provide more clarity and direction as to whether an acoustician was needed to perform additional testing. A local zoning administrator may also be helpful in scouting measurement locations for post-construction studies for access or other obvious issues that may interfere with sound testing, such as a barking dog.
Sound Measurement to the Dwelling or Property Line Communities in Michigan typically measure sound from either the property line, near the exterior wall of a dwelling, or other distance defining a curtilage around the perimeter of dwelling. The required setback to the wind turbine (being from the house or property line) is often mirrored for the noise regulation. For example, if a participating property setback from a wind turbine is measured to the dwelling, sound is also measured at the dwelling. Sound maximums measured to property lines would preserve the existing soundscape when outside in a yard or walking the property and may support future development options. Measuring sound levels at the dwelling protects the place where people spend the Huron County. (nd.) Wind Facility Overlay Distri ct Zoning. Retrieved September 3, 2020 from ncc.pdf?dI=0 87 Mason County. (n.d) Zoning Oridinance Section 17.70, Utility Grid Wind Energy Systems Zoning Ordinance (Wind Turbines). Retrieved September 3, 2020, from http://www.masoncountv.net/userfiles/fikmanager/1494i Curtilage means the land immediately surrounding a house including any closely associated buildings or structures. Land Use Series Sample Zonf ngfor Wind EneigySy.ctcms
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most time and provides a greater level of flexibility in locating wind turbines. Some standards apply at the residence at the most exposed facade, such as the WHO's, which includes sleep disturbance as a measured health outcome. Another approach is to measure noise at a distance of about 50 feet toward the wind tower from the dwelling. This 50-foot buffer would be considered the curtilage. This avoids excessive regulation of noise on large parcels where no one resides, but still covers a dwelling and a defined area around the house where people may spend time outside on their decks, in their gardens, etc. It also satisfies the typical requirement of acoustical measurement standards to stay away from large reflective surfaces, such as a building. The number and location of sites used in compliance testing must be consistent with the regulation, such as measuring at the dwelling if the ordinance specifies the sound maximum is measured at the dwelling. Whatever noise standard or measurement is used, it is important that the regulation has the following attributes: 90 • Relevant. The regulation is based on adopted ordinance or other law that is within requirements of substantive due process and reflects the way humans hear and react to sound. • Repeatable. It is important for the method for taking sound measurements produce similar results under similar conditions, including when measured by other parties. • Predictable. This is so that, during the design, the developer and community have a reasonable expectation of the noise standard requirement and resulting noise which can be modeled with a high degree of confidence. • Implementable. An acoustician experienced in wind turbine sound will perform sound compliance testing and sound modeling. Consider the possibility of using both attended and unattended measurements in order to obtain enough data to determine compliance. 9 Opportunities for compliance testing are dictated by meteorological conditions and are relatively limited during the course of a year. Consultants look for periods with low ground wind combined with high hub height winds, so the turbines are operating at full power with limited extraneous noise at ground level. Sound testing is avoided on a typical windy day or stormy/gusty day where winds are high at ground level. Low-level ground wind is a prerequisite of acceptable testing methodology. Testing is also generally done at night to avoid other background noise, such as traffic and the activities of residents.
'
Relative Sound Standards Rather than a maximum sound level (such as 45 dBA L) some communities opt for a relative sound standard. This is typically expressed as something like 5 decibels above the background sound level. In Massachusetts, wind energy facilities are regulated by the Massachusetts Department of Environmental
World Health Organization. "Environmental Noise Guidelines for the European Region." 2018. (p. 85) http://www.euro.who.int/enlpublicationsfabstracts/environmental noise-6-uiddines-for-the-european-region-2018 ResourceSystems Group. (2016) Massachusetts Study on Wind TurbineAcoustics. Massachusetts Clean Energy Center and Massachusetts Department of Environmental Protection. Retrieved September 3, 2020 from https:iltethvs.pnnLgovIsires!defaultlfilesipublicationslRSG-2016-Report.pdf 9' Attended testing allows for a technician to tag extraneous noise in real time (such as a car passing) but requires that all meteorological conditions support meeting ANSI standards (low ground wind, high hub height wind), and consultants are on site; this can be difficult to predict. Unattended testing means leaving equipment on-site for several days to capture data without a person present. With unattended measurement, a tape recorder is used and the data is analyzed at a later date to remove extraneous sounds. A combination of attended and unattended measurement is a compliance testing option. ' 0
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Protection air pollution regulations where noise sources are limited to 10 decibels over ambient sound levels.92 Relative noise standards create a variable sound maximum throughout the project as ambient noise levels can change from day to day and location to location. Atmospheric conditions, corn or tree leaves rustling, traffic, and insects can significantly change background sound levels day to day and season to season. Because of this, a relative sound standard is more difficult to determine compliance with. For example, if a community opts for a 10 dB over background noise standard, the maximum noise regulation could range from 36 CIBA in the quietest areas to 55+ CIBA in the areas near a busier road. Preconstruction sound studies would be essential when using relative sound standards because setbacks to dwellings or property lines could vary significantly to achieve compliance. Some communities opt to lockin the pre-construction background noise measurements for future compliance testing postconstruction. A more common approach is to turn wind turbines on and off during post-construction compliance testing to obtain background sound during the testing. On-off testing can be difficult to execute, particularly when wind speed and/or direction changes over the course of a several hour testing period Sound Mitigation It is best practice that a WES be initially designed and built to meet the noise regulation using conservative estimates and worst-case scenario conditions. This would include environmental conditions such as wind shear and ground cover. Standard departures of 1 to 2 dB from the manufacturer's sound power levels for a given WES model are also be taken into account. 93 The purpose of wind turbine setbacks is, among other things, to support compliance with a sound standard. Multiple turbines, a downwind orientation to predominant wind direction, and other environmental factors can increase the audibility of wind turbines. Sound modeling can account for this variability. After wind turbines are erected, noise mitigation options are limited. Turbine manufacturers offer some variation of Noise Reduced Operations (NRO) modes which can typically reduce sound emissions by 1 to 3 dB. NRO modes decrease sound by changing the orientation of the turbine blades in relation to the wind and cause a slight decrease in turbine power production. In addition, serrated edges can be affixed to blades if not already present.
Massachusetts Department of Environmental Protection, 310 CMR 7.10. https:!/www.sec.state.ma.us/reg puh/pdf/300/310007a.12df Keith, S.E., Feder, K. Voicescu, Sit., & Soukhovtsev, V. (2016). Wind turbine sound power measurements. The Journalof the Acoustical Society of America, Volume 139(3), 1431. htrps://doi.org/10.1121/1.4942405 OfeliaJ., Rosen, M.A., Naterer, G., (2011 November). Noise Pollution Prevention in Wind Turbines; Status and Recent Advances, presented at the 1 4 World Sustainabthty Forum, November 2011. Retrieved September 3. 2020 from httt)s:,'/sciforum.net/manuscrivrs/623/original.pd Land Use Scrim SanipkZoni ng for Wind EncrgySystems 10 Michigan Stare University Board of Trustees I MSU Extension I October 6. 2020 Page 41 of 49
Appendix B: Comparison of Regulation Regulations vary among communities
Depending on local conditions, setbacks can play a major role in allowing, limiting, or functionally prohibiting a WES. Michigan communities represent a variety of landscapes, population densities, lot sizes, agriculture types, topographies, and coastlines. Among Michigan local units of government, WES regulations for setbacks, sound, and other regulations are highly variable (See Table 1). Unlike other Midwestern states (See Table 2), Michigan does not have a state agency charged with wind energy siting or regulation of WES noise. In addition to setbacks, the Tables 1 and 2 below include sound maximums and where the sound is measured from (property line or dwelling). Measuring to the property line is perhaps done for the public purpose of unspoiled use and enjoyment of one's property. Measuring to the dwelling is perhaps done to minimize nighttime noise disturbance. It is reasonable that the noise standards associated with these two measurement points and associated public purposes would be different.
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TABLE 1: Utility Scale Wind Energy Zoning Regulation Comparison in Michigan 95
Jurisdiction
Type
Setback to participating parcel
Setback to nonparticipating parcel
Setback to ROW
Sound maximum
Grai.iot County*
Overlay District
2 X height or 1,000 feet (whichever is greater) to inhabited building
Minimum of 1.5 X height to the property line of non-participating
The greater of 400 feet or 1.5 X height
55 dBA at the habitable structure closest to the wind energy system
Huron County**
Overlay District
1,320 feet to inhabited structure
1,640 feet to inhabited structure
The greater of 500 feet or 1.5 X height
45
Isabella County*
SLU
2 X height or 1,00K) feet (whichever is greater) to inhabited building
Same setback as participating.
The greater of 400 feet or 1.5 X height
50 dBA 'not calculated as an average' at non-participating property line
Mason Counry **
SLU
3 X height to inhabited structure
4X
height to property line
1.5 X height
45
Schoolcraft County
SLU
3 X height to inhabited structure
6 X height to property line
6 X height to State ROW, 2 X height to other ROW
45
Ellington Township
SLU
None
5 X height to property line of non-participating property (with waiver option)
3 X height
40 dBA (Leq 1-second) or (50
Lonç Lake Township
SLU
2 X height to property line and 1.25 X height to inhabited structure (max height 199 feec
2 X height to property line (max height 199 fect)
2 X height
,a Ri.c, Township
SLU
2.5 X height to inhabited structure, waiver option allowing up to 2 X height
4 X height to property line, can be waived up to 2.5 X height
1.5 X
dBA non participating (day/night); 45 CIBA day, 50 dBA night (10 pinto 7 am) for participating (Leq 10-minute)
dBA for non-participating property line; 55 dl3A to participating inhabited structure (Leq 10-minute) dBA participating / 35 dBA non-participating
dB(C) Leq 1-second) on any non-participating property (with waiver option)
height
10 decibels over ambient baseline sound level at the property line 40 dBA (10 pm to 6 am), 45 dBA (6 am to 10 pm) at property line of nonparticipating parcel
*WES projects were approved under these listed ordinance requirements. **Huron and Mason Counties approved WES under less restrictive setbacks than those in the current regulation listed here. These communities referenced in Table 1 were not selected for the purpose of directing the reader to model ordinances, but rather to illustrate variation in local zoning regulations in Michigan.
Land WcScncs:Sampkzotungfor%Vind Enay Systems
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TABLE 2: Comparison of Selected Midwestern State Standards Regulating Wind Energy Development
State regulation
Approving body
Setback to participating property
Setback to non-participating property
Setback to ROW
Sound maximum
Ohio
Ohio Power Siting Board
1.1 X height from participating property line,
1125 feet plus the length of the turbine blade at 90-degrees (about 1300 feet) measured to the property line.
1.1 X height
Ambient plus 5 cIBA and/or a 24 hour Leq of max of 50 dBA
Wisconsin
Wisconsin Public Service Commission
1.1 X height from participating residences.
The lesser of 1250 feet or 3.1 X tip height from occupied community buildings and non-participating residences.
1.1 X height
45 dBA (10 pm to 6 am applied as onehour Leq), 50 dBA (6 am to 10 pm). A community may adopt a less restrictive standard.
Illinois (sound only)
Local unit of government,
Determined by local jurisdiction
Determined by local jurisdiction.
Determined by local jurisdiction,
Minnesota
Minnesota Public Utilities Commission
500 feet plus the distance required to meet the state noise standard
3 rotor diameters (RD) (760 to 985 feet) for secondary wind axis (typically east-west) and 5 RD (1280 to 1640 It) for primary wind axis (typically north-south) for turbines with 78 to 100 meter rotor diameter.
250 feet
Illinois Pollution Control Board limits sound by octave band sound pressure levels, onehour Leq. 50 dBA (night) 150 one-hour.
Appendix C: Shadow Flicker, FAA Lighting Shadow flicker is a shadow that is cast by the spinning wind turbine blades which causes a strobe effect to be cast on a dwelling window or similar structure. There is no scientific evidence that shadow flicker causes seizures. There may be some increased risk of seizure with smaller wind turbines that interrupt sunlight more than three times per second 97. Despite the lack of health effects, shadow flicker is often cited as a public concern and can result in annoyance.
Harding, G., Harding, P., & Wilkins, A. (2008). Wind turbines, flicker, and photosensitive epilepsy: Characterizing the flashing that may precipitate seizures and optimizing guidelines to prevent them. Epilepsia 49(6),1095-1098. https://doior10.1111/j.1528-1167.2008.01563.x Smedley, A.R.D., Webb, A.R., Wilkins, A.J. (2010). Potential of wind turbines to elicit seizures under various meteorological conditions. Epikpsia,51(7), 1146-1151. htrps://doi.org/10.11ll/j.1528-1167.2009.02402.x ' 6
Lard UcScric Sample Zoning for Wind EnoySy.ctems
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A 2016 article based on data from the Health Canada Wind Turbine Noise & Health Study sought to better understand how exposure to shadow flicker correlates with an annoyance response. The study found that exposure to wind turbine noise, blinking lights, and concerns for physical safety were better predictors of annoyance caused by shadow flicker than the level of shadow flicker exposure modeled to be present 98 In general, the farther away the turbine is from a particular observation point the less the duration of the flicker, the less intense the flicker (i.e. it is more diffuse and so bothers a smaller percentage of people), and the lower the likelihood it is observed because of various obstructions, such as trees, structures, topography, etc. that block the shadow. Atmospheric conditions play a role in the distance flicker travels. Clear, dry weather (i.e., a sunny day in winter) is when flicker will be most noticeable at longer distances. Haze, humidity, fog, and partial clouds diminish flicker intensity and length of travel. Wind energy developments in the United States are commonly designed for a maximum shadow flicker of 30 minutes a day or 30 hours per year measured on a dwelling. Most Michigan communities and Midwestern states have adopted a standard of 30 hours per year of actual shadow flicker on a dwelling. This 30 hours metric is based on a German standard. 99 The German standard, however, is an astronomical maximum of 30 hours per year and eight(8) hours per year maximum of actual shadow fficker'°°. The astronomical maximum refers to a theoretical condition where the sun is always shining, wind turbines are always operating, the blades are oriented to make maximum shadow flicker, and there are no obstacles (buildings, vegetation, etc.) between the turbine and the shadow receptor (e.g. an occupied dwelling). Computer models calculate an astronomical maximum and then apply a reality factor (depending on the location, dominant wind direction, available sunny days, etc.) to estimate actual shadow fficker)°' Flicker mitigation technology continues to advance and allows for turbines to be turned off when flicker may occur on a receptor. This involves the use of computer modeling and light sensors on a turbine to alert the turbine if the conditions exist to create a shadow or not. In Mason County's experience with Vestas systems'02, flicker mitigation technology was effective for minimizing or eliminating shadow flicker on inhabited structures. With available technology, it is possible to adopt a flicker standard lower than 30 hours per year. Many communities require that flicker mitigation technology be installed on turbines predicted to cause shadow flicker above the maximum allowable amount. Other forms of flicker mitigation may include moving a wind turbine in the design phase or the installation of window treatments and/or large trees/shrubs after construction and at the expense of the WES owner. In Huron County, some owner/operators voluntarily turned off turbines for the duration of a predicted shadow flicker event when a complaint was received. Other owner/operators in nearby developments chose not to turn off the turbines when the flicker event(s) were within regulatory compliance.
Voicescu, S.A., Michauda, D.S., & Feder, K. (2016). Estimating annoyance to calculated wind turbine shadow flicker is improved when variables associated with wind turbine noise exposure are considered. The Journal of the Acoustical Society of America, 139(3), 1480. https://doi.org/10.1121/1.4942403 WEA-Schattenwurf-Hinwcise (German). 100 Update of UK Shadow Flicker Evidence Base. Department of Energy and Climate Change (2010); p.14. hrxps://assets.publishin.service.gov.uk/overnmcnt/up1oads/svstem/up1oads/arcachment data/fi1e/48052/1416-update-ukshadow-flicker-evidence-base.pdf '°'Haugen. International Review; p.6. 112 Mason County adopted a 10 hour flicker maximum per year, then lowered the limit to zero hours/year based on the effectiveness of the Vestas shadow detection technology and time/resources needed to enforce a 10 hour/year maximum. Land U.'.cScrics; SampkZoningforWnd EnetSyrcm
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For ease of enforcement, modeling, and mitigation technology, this sample ordinance recommends regulating shadow flicker at the dwelling rather than the property line.
Shadow Flicker Travel The distance that shadow flicker can travel is dependent on a number of conditions such as topography, obstructions (trees, structures), height of turbine, and blade length. Based on multiple field observations in Mason County, flicker from a 476-foot turbine located a mile (5,280 feet) away is visible and perceptible. Due to these observations, Mason County adopted regulations to require flicker modeling at 20 times the rotor diameter: 2,000 meters (6,561 feet) for a 50 meter (164 foot) blade, which is twice the industry standard of 10 times the rotor diameter. In another study, a wind turbine with a blade 45 meters (148 feet) long and 2 meters (6.6 feet) wide, produced shadow flicker visible up to a distance of 1.4 kilometers (4,593 feet), with weak shadow casting observed at a distance of 2 kilometers (6,562 feet).' ° This sample zoning presents a sample standard of requiring shadow flicker modeling to a distance or 20 times rotor diameter based on experience in Mason County. This is a conservative approach that will provide a community with a more accurate assessment of total shadow flicker impacts when enforcing an hours/year maximum. A 10-foot rotor diameter model can also be used, but it may result in an under prediction of total flicker and/or some individuals may experience flicker that were not modeled to receive it.
FAA Lighting and ADLS The Federal Aviation Administration (FAA) requires obstruction lighting on wind turbines characterized by red, blinking lights located on top of the nacelle. Obstruction lighting is synchronized to go on and off at the same time. Lighting plans are submitted to the FAA for review and approval. FAA authority supersedes local zoning on obstruction lighting. Not every wind turbine may be required to have obstruction lighting within a utility-scale WES. The FAA reviews the perimeter of the WES and clusters of turbines within the development to determine which turbines are required to have lighting. Turbines that are above 499 feet to the tip of the blade at the highest reach are required to have slightly different lighting configurations than those below 499 feet. A newer technology known as Aircraft Detection Lighting Systems (ADLS) provides a potential alternative to night time lighting that operates all night, every night. ADLS is a sensor-based system designed to detect aircraft as they approach. When an aircraft approaches, it activates the obstruction lights until they are no longer needed. The FAA reviews and approves ADLS applications on a case-by-case basis. A local unit of government cannot require the FAA to approve an ADLS application, but it may require the applicant to submit an ADLS application for FAA review. The FAA reviews the application for proximity to airports, lowaltitude flight routes, military training areas, and other areas of frequent flight activity. The FAA can approve, modify, adjust, or deny an application. Some portions of a WES may be approved for an ADLS while other areas are required to maintain obstruction lighting during night time hours. 104 Katsaprakakis, D.A. (2012). A review of the environmental and human impacts from wind parks. A case study for the Prefecture of Lasithi, Crete. Renewable and Sustainable Energy Reviews, 16(5), 2850-2863. https:ffdoL2rgIlO.1016/j.rser.2012.02.041. US Department of Transportation. (2015). Federal Aviation Administration, Advisory Circular No: 70/7460-11, 104 Obstruction Marking and Lighting. Retrieved September 3, 2020 from https://www ,faa.gov/documenthbrary/mcdia/advisory circular/ac 70 7460-I L.1!4! 13
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Appendix D: Summary of Michigan-Specific Wind Energy Research and Information The Michigan Office of Climate and Energy'°' maintains resources on wind energy, as well as Michigan Wind Energy Resource Maps prepared by the U.S. Department of Energy.'° 6 Other Michigan-specific academic research is listed here in an attempt to provide a comprehensive list of locally relevant information. Not all of the resources are published in peer-reviewed journals, however all research is from academic institutions. Michigan-specific academic resources include: Adelaja, S. & Hailu, Y.G. (2008). Renewable energy development and implications to agricultural viability. Paper presented at the American Agricultural Economics Association annual meeting, Orlando, FL, July 2008, Retrieved September 3, 2020 from httl?://a gecon.search.umn.edu/bitstream/6132/2/470566.1 2 S., Hailu,Y.G., Warbach,J., Kiepinger, M., McKeown, C., Calnin, B., & Fulkerson, M. (2007). Meeting Michigan's 2015 Renewable Portfolio Standard (RPS): Wind Turbines Required and Projected Land Usage. Michigan State University Land Policy Institute.' 07
Banas Mills, S., Borick, C., Gore, C., & Rabe, B.G. (2014, April). "Wind Energy Development in the Great Lakes Region: Current Issues and Public Opinion." Issues in Energy and Environmental Policy No. 8. Centerfor Local, State, and Urban Policy, Ford School of Public Policy, University of Michigan.
https://papers.ssrn.comlsol3/papers.cfm?abstract id2652865 Bidwell, D. (2016). The effects of information on public attitudes toward renewable energy. Environment and Behavior, 48(6), 743-768. https://doi.orgIlO.1177/0013916514554696 Bidwell, D. (2013). The role of values in public beliefs and attitudes towards commercial wind energy. Energy Policy, 58,189-199. https://doi.org/10.1016/j.enpol.20l3.03.O1O Groth, T.M. & Vogt, C. (2014). Residents' perceptions of wind turbines: an analysis of two townships in Michigan. Energy Policy, 65,251-260. https://doi.org/10.1016/j.enpoL2013.10.055 Michigan State University Land Policy Institute & Great Lakes Commission. (2011). Wind Farm Development in Coastal Communities Integrated Assessment Factsheet Series. Available at: https://'www.canr.msu.edu/planning/zoning ordinance resources/wind-energy-alternativeenergv#perl Michigan State University Land Policy Institute. Renewable Energy Policy Program. 2007-2013 Archive. Accessed April 2020: htrps://www.canr.msu.edu!landpolicv/programarchive/renewable energy policy program/ Mills, S. (2015 January). Farming the Wind: The impact of wind energy on Farming - Summary Survey Results. Centerfor Local, State, and Urban Policy, Ford School of Public Policy, University of
Michigan. Retrieved April 2020: http://closup.umich.edu/wind/f arming-the-wind-the-impact-ofwind-encrgy-on-farming.php Mills, S. (February 2017). "Views of Wind Development from Michigan's Windfarm Communities Landowner Survey Summary." Centerfor Local, State, and Urban Policy, Ford School of Public Policy, University of Michigan. Retrieved September 3, 2020 from Michigan Department of Environment, Great Lakes, and Energy (n.d.) Office of Climate and Energy: Overview. Retrieved September 3,2020 from hts://wwv.michigan.gov/cimateandenergv '° Office of Energy Efficiency & Renewable Energy. (n.d.) Wind Energy in Michigan. Retrieved September 3, 2020 from https://windexchange.energv.gov/states/mi 107 For a copy of this report contact: charron@msu.edu . For other MSU Land Policy Institute energy related materials see https:I/www.canr.msu.edu/landpolicyiorogram-archive/renewable energy policy program Land Use Serim Salle Zoningfor Wind EnySys tems
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Mills, S., Homer, D., & Ivacko, T. (2014 July). Wind power as a community issue in Michigan. Michigan Public Policy Survey. Center for Local, State; and Urban Policy, Ford SchoolofPublic Policy, University ofMichigan. Retrieved September 3, 2020 from http://closup.umich.edu/michiganpublic-policv-survev/34/wind-power-as-a-communitv-issue-in-michigan! Nordman, E., VanderMolen,J., Gajewski, B., Isely, P., Fan, Y., Koches,J., Damm, S., Ferguson, A., & Schoolmaster, C. (2015). An integrated assessment for wind energy in Lake Michigan coastal counties. Integrated Environmental Assessment and Management, 11(2), 287-297. https://doi.orgJ10.1002/ieam.1602 Phadke, R., Manning, C., Buchanan, A., Dejong, E., & Camplair, N. (2011 August 6). Michigan Wind Energy Landscape Symposium - Workshop Report. Macalester College - Understanding Wind Initiative. Retrieved September 3, 2020 from https://www.maca1ester.edu/windenerv/svmposiaIMlSymposiumWorkshopReporrxdf Nordman, E. (n.d.) West Michigan Wind Assessment. Grand Valley State University Retrieved September 3, 2020 from https://www.gvsu.edu/wind/ Wind Energy Resource Zone Board. (2009). Final Report of the Michigan Wind Energy Resource Zone Board. Retrieved September 32020 from board
Appendix E: List of Revisions to this Document August 24, 2017: • Many non-substantive edits throughout. • Additional reviewers of this material: Sarver, Ivan, Banas-Mills, Kaliski, and Wyckoff. • Added disclaimers indicating this is not a new study, not recommendations by MSU or MSUE (it is a sample, not a model, zoning ordinance) and disclaimers and assumptions about use of sample ordinance language. • Updated and more detail about the 2008 sample zoning and this document. • Considerable additional information in the introductory material and sample ordinance on regulation of noise, with suggestion to move noise regulation to a police power ordinance, importance of specifying method of measuring noise, location of noise measurement (edge of the curtilage), differentiation of the decibel level depending on method and location of measurement, complexity of noise standards (consult/hire an acoustic specialist) and attributes for the same.'°8 • Changing the sample ordinance to present a range of possible standards (rather than a single numeric standard) for a community to consider and adopt what is appropriate for the respective zoning district, community, and so on. The March 6, 2018 version of the Sample Zoning had problems that resulted in confusion and misinterpretation. The March version of this document was a substantial update from a 2008 document issued by the State of Michigan on the same topic (Michigan Siting Guidelines for Wind Energy Systems). Specifically, research and definitions related to noise measurement and regulation needed to be updated and expanded. The intent with any work by MSUE is to provide (1) the current university-based (peer reviewed, double blind, repeatable, published) research and (2) the legal parameters on a topic. 108
Land USeriv Sample Zontngfcr Wind Energy Syacntc
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• In the sample ordinance a differentiation between a parcel setback for wind energy towers and a required distance from the edge of a unit boundary - now handling those as two separate distinct standards. • Added definitions to the sample ordinance. • Additional options for addressing shadow flicker. • Use of a sound modeling study and shadow flicker study as part of the application. • Further explanation of the use of Mason and Huron Counties in the document. • Further vetting of cited resources (adding some and removing some). September 2020
• Added new state and federal cases to "Court and Case Law." • Added caution to use a very specific measurement methodology tied to the public purpose of the regulation for sound measurements. • Added summary of additional research on public engagement and education. • Added detail on sound regulation, sound descriptors to a new Appendix A. • Added FAA and ADLS information to an Appendix C. • Added comparative regulatory table Appendix B. • Added section on leases and easements (zoning has no authority). • Added information on relative sound standards. • Removed noise compliance tied to a police power ordinance (rather than regulating in the zoning ordinance). • Moved history of the sample zoning document to a new Appendix E. • Replaced language about a lease unit boundary with participating and nonparticipating standards • Modified "commentary" on performance guarantees and many other sections. • Added commentary (in footnote) cautioning against property owners or neighbors waiving or reducing zoning standards (page 7). • Added new language about "End of Life" of a wind energy system • Additional reviewers, Sarah Banas Mffls,Jeff Smith, Brian Ross, Tyler Augst, Mike Hankard (Hankard Environmental, Inc.) (sound only).
The March 6, 2018 version of the Sample Zoning had problems that resulted in confusion and misinterpretation. The March version of this document was a substantial update from a 2008 document issued by the State of Michigan on the same topic (Michigan Siting Guidelines for Wind Energy Systems). Specifically, the use of the word 'setback' in connection with the lease unit boundary concept needed to be clarified. The zoning setbacks and distance from lease unit boundaries are two different things, The March 2017 version of the document did not make a clear distinction between a property line setback and a distance required from a lease unit boundary. (We should not have used the word "setback" for both, and do not in the August Version). The August version tries to clarify this, but does not change the original intent in any material way. For example, the March version introduced a minimum distance from a lease unit boundary of 1,640 feet. The August version introduced a distance from a lease unit boundary of 1,000 feet or more based on an observed shortest distance from one wind generator to another wind generator from a sampling of 28 built wind generator pairs near Pigeon, Ludington, and Ithaca, Michigan. (Also, we did not want to give a single distance (prescriptive) but rather a range so the community makes an informed decision as to what is right for them.) A definition for a lease unit boundary, which includes compensated buffer properties, was also added to the August version of the document. The August version actually increases the suggested distance to consider as a possible lease unit boundary distance to anything 1,000 feet or greater and makes a clearer distinction between lease unit boundary distance and property line setback. 109
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Vol. 38 No5, Match & April2020
INSIDE Renewable Energy in Michigan, Andrew Light, Hannah Smith, and Sarah Mills, 2-15 An Examination of Wind Energy Litigation in Michigan & Suggested Planning & Zoning Improvements, Mark A. Wyckoff, 17-26 MSU Extension Updating Sample Zoning for Wind Energy Systems, Brad Neumann and Mary ReiUy, 27 & Backcover Resources and References, Backcover Iannç &Zonit9 Newt) :PZN) 5 pbsd by ac Plafirxng & Zoq Center, In ,,., 710 N. Ccsr St Suhn 2, Lonsise, tI 409C6; ph. 517-856-)555. Cøpyright 2020, all rights reserved
RENEWABLE ENERGY IN MICHIGAN By Andrew Light, Hannah Smith, and Sarah Mills, University of Michigan itive, especially in light of unknown future prices for fossil fuels. As shown in Table 1, renewable energies like wind and solar have increased substantially over the last two decades in Michigan and throughout the Great Lakes region, while cool fired power plants have increasingly been retired. This transition to renewable energy has meant a shift in the geography of electricity production. Currently, most of our electricity comes from large, centralized fossil fuel and nuclear power plants sited in or near urban areas and especially along our coastlines where much of that
Introduction ikethe rest of the world. Michigan has begun to switch how its electricity is produced. It is moving away from fossil fuels-especially coal-and toward renewable energy sources such as wind and solar power. This is a result of two primary factors. First, concern is increasing among citizens, businesses and governments to reduce carbon emissions as the effects of climate change emerge (often in the form of more intense rainfall). Second, this rise in renewables is also a result of the rapidly dropping costs of wind and solar making them increasingly cost compet-
L
Table 1: Utility-scale Wind and Solar Net Generation in Midwest States and Ontario, Canada (in thousands of megawatt hours) Coal
Wind and Solar State Illinois
'AlIli
2010 0
'A*Iii
2018
4,468
11,965
'
'Alit'
79,551
93,611 112.238
77,455
'
59,642
Indiana
0
2,934
5,728
116,067
Michigan
0
360
5,575
68,263
65,604
42,331
897
4,792
11,756
31,819
28.083
23,455
0
13
1,869
124,213
117,628
58.727
Pennsylvania
11
1,862
3.629
111,900
110,369
44.068
Wisconsin
72
1,088
1,678
41,253
40,169
33,322
1,847,290
1,145,962
Minnesota Ohio
U.S. Total
Ontario
6.087
95,864
336,475
1.903.956
2005
2015
2016
2005
2010
2018
26
13.201
15,589
29,428
12,285
0
Source: ela.gov; statcan.gc. f'1cte' Most of the decline in coal produced power that has not been replaced by w:nd and solar has come from conversion to natural gas powered Utility plants.
About the Authors ndrew Light (lightandiumich.edu ) is working on his MS in Environmental Policy from the University of Michigan's School for Environment and Sustainability (SEAS).
A
annah Smith (horaces(Siumich.edu ) is a MURP student at University of Michigan's Urban and Regional Planfling Program.
H
S
arah Mills, PhD, (sbmilisumich, 9) is a researcher at University of Michigan's Graham Sustainability Institute. Her PhD is in urban planning, and her work has explored the connection between renewable energy and farmland preservation. She currently has a grant from the Michigan Department of Environment, Great Lakes, and Energy (EGLE) to help communities across the state plan and zone for clean energy.
power is used. By contrast, renewable energy sources are scalable, allowing for a more widely distributed power generation network. But these renewable energy sources also require more land area than traditional power plants to produce the same amount of power. What this means is that a shift toward renewable energy will put far more-and different--people in contact with energy infrastructure Deploying rooftop solar throughout a community. for example, will put many more people in daily contact with their local 'power plant." But even if solar panels were put on all available surfaces. there is simply not enough land area in cities to produce as much electric power as these cities consume. As a result, the ongoing energy transition will require siting renewable energy infrastructure-and the transmission lines to bring that power to urban areas-in rural communities, providing a new economic development opportunity for these communities.
While few planners in the past have bad the need to give much consideration to siting energy infrastructure, that can no longer be the case. The transition to alternative energy is underway, and it is now more important than ever for all Michigan communities to decide v)hether, how, and where new energy infrastructure fits within their community. That means educating and asking the public for input, amending the master plan, and then zoning accordingiy. Thereafter, it will be important to frequently reassess thqse ordinances to make sure they are keeping pace with changes in renewable energy technology. This article will examine the geography of wind and solar in Michigan, how utility-scale renewable energy development works, what developers are looking for when siting projects, community benefits and drawbacks of renewable energy projects, and how to properly plan and zone for renewable energy. This article does not address other forms of renewable energy production like hydroelectric, geothermal, tidal, or others. Geography of Wind and Solar in the Midwest As shown in Figure 1, there is already considerable renewable energy development across the Great Lakes regionboth in the U.S., and in Ontario. Most of the existing projects are wind farms, due largely to a more mature market for that technology. However, In recent years, as the costs of solar have begun to significantly decline, solar projects are becoming increasingly prevalent throughout the region. In Michigan, of the 2,241 MW (megawatts) of utility-scale renewable energy currently deployed, 2,139 MW are wind energy. Most of this development has occurred near the Saginaw Bay and in the central Lower Peninsula region One of the early investments made when developing clean energy in the state was to run transmission lines through the "thumb' of Michigan, which has some of the highest potential for wind energy production that could support utility-scale wind power At the same time, the increased, rapid development of wind projects in that region has likely been a catalyst for some of the harsher resistance that wind developers have faced. The region now includes moratoriums on utility-scale wind projects, legal battles, and ongoing rezoning efforts. While the transmission lines might entice further alternative energy development, a lack of community support and many other factors that will be explored more fully later, will likely determine the future of additional energy development near the Saginaw Bay P!anning & Zoning News(,.t/March & April 2020
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Instead, most development attention on wind energy has shifted to other areas of the state, notably along the US-127 corridor and other parts of central Michigan. More efficient blade design and taller wind turbine towers have made wind energy production viable in more areas in Michigan, though access to transmission lines and finding a welcoming community continue to limit how many wind projects will be built in the state. There are currently eight wind projects, totaling 1,215 MW, in the MISO (Mldcontlnent Independent System Operator) queue—that is, wind developers are studying to see if there is space on the transmission grid for these potential projects. See Figure 2 and Table 2 on pages 4 and 5. There is far less utility-scale solar power currently developed in the state, and those projects that do exist are far smaller in size than wind energy projects. In part, this is because solar can occur at much different scales. While there are economies of scale for both wind and solar, the large equipment required to erect a wind turbine means that projects of one or two—or even 10—turbines are often cost prohibiPlanning & Zoning News©JMarcl, & April 2020
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tive. For solar, it is more possible to create projects of varying scale from 1 MW to hundreds of MWs The 12 utility-scale solar installations currently in the state total 102 MW. or 8.5 MW on average. The largest existing solar project is a 50 MW project sited largely on city-owned property in the City of Lapeer. However, change is afoot. There is currently a 239 MW solar farm under construction in Shiawassee County that will single-handedly triple the state's installed solar capacity when it comes online, expected later in 2020. Furthermore, the MISO queue currently contains 49 solar projects totaling 6,253 MW of capacity, averaging 127 MW per project. Additionally, there are hundreds of smaller scale solar projects—more on the order of 1 to 20 MW—that would connect to distribution lines rather than transmission lines, which are not shown on these maps. Transmission lines are higher voltage electrical wires that transfer electricity from power plants to substations, where the power is stepped down to a lower voltage to reach end-users via distribution lines, While most of the solar projects are in the south-
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ern third of the state, there Is active discussion of solar in the Upper Peninsula and in the Northwestern Lower Peninsula, demonstrating that much of the state has viable solar resources. See Figure 3 and Table 3 on pages 6 and 7. Renewable Energy Goals and Commitments One driver of renewable energy development in Michigan has been the renewable portfolio standard (RPS) initially passed by the Legislature in 2008 which required utilities to get 10% of their electricity from renewable energy sources by the year 2015. In 2016, the RPS was legislatively increased to 15% by 2021, a target which the utilities in the state expect to meet. This puts the state roughly on par with the other states in the Great Lakes region. See Table 4 on page 8. At the same time that the state increased the RPS, it also required the major investor-owned utilities, including DTE and Consumers Energy, to file integrated resource plans (IRP), showing how they plan to supply electricity to customers for the next 15-20 years, Both DTE and 3
buildings in Michigan as well as worldwide. And both Consumers Energy (Solar Gardens) and DIE (MiGreonPower) offer green pricing programs for customers of all sizes, allowing customers to opt into a program to get a larger percentage of their power from renewable energy sources than the current utility mix provides.
Figure 2: Existing and Proposed Utility-Scale Wind Projects in Michigan
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Some municipalities have also been active in this space, calling for higher levels of renewable energy either for their city's own power use, or for the needs of all electricity customers in the city limits. Cities around the Midwest have found ways to place solar panels on municipal buildings or offset their energy use by purchasing power from larger renewable energy installations. Additionally, there are an increasing number of cities that have committed to 100% renewable energy goals, a list of which can be found in Table 5 on page 8. Many businesses and other consumers have committed to renewable energy goals as well, Switch, a technology infrastructure company with a campus in Grand Rapids. Ml, has worked with Consumers Energy to power their campus with 100% renewable energy. General Motors has signed on to RE103, a list of businesses committed to 100% clean energy. General Motors hosts solar panels on many of their
There are other federal and state policies that have facilitated the deployment of renewable energy. At the federal level, both wind and solar technologies have received tax incentives to make them more cost-competitive with nonrenewable projects like natural gas or coal. These tax incentives have expired and later been renewed numerous times, and there is increasing discussion about whether they are needed any longer given the declining costs of wind and solar technologies. At the state level, one significant policy for renewable energy production is the adjustment to the state Farmland and Open Space Preservation act, known as PA 116. This act, originally enacted in 1974, allows farmers around the state to voluntarily limit development on farmland in exchange for tax benefits. This popular program has more than 3.3 million acres (as of 2018), or about 33% of the state's best farmland enrolled. Prior to June 2019, PA 116 policies largely allowed utility-scale wind energy development, while utility-scale solar was not, This effectively made a significant portion of the state's farmland off-limits to solar developers. In June 2019, Governor Whitmer announced a change to the policy as a result of a workgroup analysis. The new policy allows landowners to effectively put their PA 116 agreements on hold to pursue solar development so long as a list of conditions are met. Those conditions include maintaining the existing field tile (underground drainage), planting pollinator habitat and ground cover, and the developer posting a surety bond or letter of credit with the State to ensure that the solar panels are removed and the land is returned to a condition in which it can be farmed at the end of the project. The move was intended to allow farmers to be eligible to take advantage of the economic opportunity presented by renewable energy development while putting safeguards in place to preserve the ability to farm the land in the future. There are also a number of state-level policies that have helped accelerate the deployment of smaller-scale renewable energy systems, including rooftop or small-ground-mounted solar installations. These include net metering—the ability for customers with renewable energy systems to sell excess power to a utility; and a 2019 change to Michigan's property tax policy for small-scale less than 150kW) solar energy systems to prevent an in-
Planning & Zoning News/March & April 2020
Table 2: List of Operating Utility-scale Wind Projects in Michigan
Wind Energy
Wind turbines come in two main size categories. Large-scale wind turbines County/Towri%hips R111Efthrare used for utility-scale energy production, or "wind farms." The size of these large turbines has grown over time to 2017 1 CO.-:) Huron' Winsor 22 Apple Blossom Wind Farm allow for larger rotor diameters (which 2001 1.8 2 Cheboygan/ Wawatam Bay Windpower I produce more power) and to take advantage of steadier wind speeds at Gratiot! Emerson, North 21 2014 50.4 Beebe lB Star - higher altitudes. As shown in Figure 4 (on page 9), these turbines are close to GratiotI Emerson, Harniton, 3.4 2012 81.6 Beebe Renewable Energy LLC twice the height of tw& new farm silos. North Star In Michigan, most of the existing wind 10 2014 Huron! Rubicon 20.0 Big Turtle Wind Farm I turbines are just under 500 feet tall, reflecting the technology that was largely 14 2016 29.4 Big Turtle Wind Farm ... Huioril Bloomfield available from 2010 to 2018, when most Huron! Brooktielc, Grant. of the state's wind turbines were erect74.8 44 2014 Brookfield Sebewaing, Wnsor ed. However, some of the earliest turbines in the state are shorter, and many 111.0 2014 Tuscola/ Akron, Columbia 62 Cross Winds Energy Park of those under construction right now 2018 19 44.0 Tuscola] Columbia Cross Winds Energy Park II are taller. The two turbines just south of the Mackinaw Bridge, built in 2001, for 76.0 33 2019 Tuscola! Columbe Cross Winds Energy Park Ill example, are roughly 325' tall, and the Huron! Bloomfield, Dwight, 2017 72 standard size in 2008, when Michigan's 149.0 Deerfield Wind Energy, LLC Huron, Lincoln first large-scale wind turbines went onHuron' Chandler. McKinley, line, was closer to 400'. By comparison, 2014 70 112.0 Echo Wind Park Oliver a wind farm currently under construction in Isabella County is the first to utiGratiot! Bethany, Emerson. 2012 110.4 69 Gratiot County Wind LLC lize turbines taller than 500'. Lafayette,City of St. Louis Because constructing modern wind : Gratot/ Bethany, Lafayette, 2311 64 102,0 turbines requires developers to bring in Gratiot Wü-id Park Wheeler special cranes, developers often need 2008 32 Huron! Chandler, Oliver 52.8 Harvest I to site multiple turbines in an area to reach economies of scale. There are 1 HurOn! Chandler, McKinley, 2012 59.4 33 Harvest examples of one or two smaller turbines Oliver deployed in Michigan (e.g., by Macki14 2012 28.0 Delta! Garden Heritage Garden Wind Farm I naw Bridge. outside Traverse City, and 2'J12 in Northport) and elsewhere, especially 56 Mason, Riverton, Summit 100.8 Lake Winds Energy Park in Minnesota and across New England. 2012 Huron! McKinley 14.4 9 McKinley Wind Park However, these smaller installations 2008 46 69.0 produce less power and are still expenHuron/ Bingham, Sheridan Michgn Wind 1 sive, so there is limited interest in this Sanilac! Delaware, Marion 2011 50 90.0 size of development. Michigan Wind 2 Minden There are, however, even smaller2012 20 SanilacJ Delaware. Minder 32.0 Minden Wind Park scale wind turbines that do not require construction cranes that are possible in Huron! Brookfield. 2013 smaller numbers. Small-scale turbines 44 i 74.8 Fairhaven, Oliver, Pheasant Run Wind LLC Sebewa rig, Winsor can range from a short, roof-mounted turbine to a turbine that is upwards of Gratiob Bothany, Coe, Pine 2019 65 161.3 Pine River W.cd Farm 150' tall, depending on the local ordiRiver nance limitations. Most often, these Huron! Chandler, Colfax, turbines produce energy to off-set the 2018 30 50.0 Pinnebog Wind Park Oliver use of grid power (similar to rooftop 40 2012 64.0 Huron! Bloom fi eld, Sigel Sigel Wind Park solar panels). While the primary use of small-scale wind is for on-site consumpMissaukee/ Highland, 2009 29 600 Stoney Corners Wind Farm tion, excess electricity produced may be Rlch:and sold back to the local utility, depending 75 2012 1200 Tuscola/ Blumfield, Gilford Tuscola Say Wind upon the net-metering policies in the utility territory. Small-scale wind energy Tuscola/ Akron, Fairgrove, 2013 59 100.3 Tuscola Wind II LLC systems may also use batteries to store Gilford, Wisner excess energy. There is also often talk of offshore Different Scales of Wind crease in taxable value until the home is wind, since some of the best wind resold. As is the case in many states, Michiand Solar Energy Projects sources in Michigan are over the Great gan's current policies for these smallerAs noted earlier, renewable energy Lakes. The primary obstacle to offshore scale systems are in flux, with utilities of technologies are scalable and so are dewind in the Groat Lakes is the cost: both ten proposing changes that make it more ployed in many different sizes of applicabecause it is more expensive to do condifficult—or less lucrative—for residential tions. Understanding these differences in struction and maintenance in water, but and small business owners to sell excess scale—and how technologies have shiftalso because offshore wind brings with solar power to the grid. There are currented over time—is important to considering it additional regulation. The costs have ly legislative efforts by several groups to their fit in a community master plan. been declining, however, and so offshore eliminate impediments to installing smallscale solar energy projects. Nameplate Capacity
Planning & Zoning News©/March & April 2020
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wind development is picking up. The first offshore wind project in the United States is near Block Island, Rhode Island. It came online in 2016, and more offshore wind is currently being planned along the East Coast. Currently, there is only one offshore wind project being planned in the Great Lakes. The Icebreaker Wind Project (so-named because of this additional challenge in fresh water compared to salt water). it is proposed to be located in Lake Erie 8-10 miles off the shore of Cleveland. Solar Energy Solar energy, can largely be thought of at two different scales: utility-scale and small-scale for on-site use. Utility-scale solar energy systems typically use panels that are affixed to support posts that are driven into the ground. The support structures can be made taller to create, for example, covered carports, as
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has been done on Michigan State University's campus. Solar panels can also be mounted on ballasted supports (effectively heavy concrete blocks) and sit on top of the ground, which is more expensive, but allows solar panels to be deployed on browrifield sites incLiding capped landfills, where you are not permitted to penetrate the ground. There are also solar panel support systems that float on water such as at ponds or water treatment plants. Solar panels themselves can be fixed—facing the same direction all day--or may be tracking" systems, rotating slowly to follow the sun throughout the day. As noted earlier, it is more feasible for solar energy installations to come in a variety of sizes, Compared to a wind farm, there is far less specialty equipment that is needed to construct a solar farm, and while there are economies of scale (for example, in solar panel purchasing, engi-
neering, and permitting fees), installations of various sizes mounted close to the ground are often feasible. Indeed, many of the existing utility-scale solar installations in Michigan are modest in size and connect to the distribution grid rather than the transmission grid. Some of these projects are "community solar" projects where utility customers can "buy a share" of the - solar project—as they might if they had solar panels on their roof. Their utility bill is charged for the cost of the panels, but they are credited with the power the panels produce, with the idea that once the panels are paid off, they are receiving free electricity. The Lansing Board of Water and Light, for example, has a community solar project on a capped Jandfill. producing around 430,000 kWh per year. Not all of these small-scale systems, though, fall under that definition, but often these community-scale" projects are viewed more favorably by neighbors than larger installations. Small-scale projects for on-site use have been around for decades. Electricity customers—residences, but also commercial or industrial businesses—often have the option of placing solar panels on rooftops or using ground-mounted solar panels as an accessory structure on their property. The primary use of the property is for residential, commercial, or industrial -= use. Solar power is an "accessory use' of these properties. Sometimes these systems are sized to not produce any excess power: other times, they are sized to produce enough power to cover the building's needs over the course of the year, relying on net-metering to sell excess power to the grid, or increasingly to store some of the excess power in a battery. More information about planning and zoning for small-scale renewable energy starts on page 11. In contrast, a utility-scale solar farm would be considered the primary use of the land.
What Utility-Scale Renewable Energy Developers are Looking For There are many factors energy developers consider when trying to develop a new renewable energy project. These are some of the most common to help local governments better identify which parts of their community are most viable for renewable energy development.
Planning & Zoning Now-s©/March & April 2020
Land Availability and Contours
Table 3: List of Operating Utility-scale Solar Projects in Michigan
Project Name
county/ Township or
city Watervliet PV
Domino Farms Solar Ford World Headquarters
Berrien/WatcrVet T Washtenawl Ann Arbor
Output (MW)
What was there before
5
'Cleared land since the year 2030 at least. Substation there since 2015 (Google Earth)
1
Dearborn
Year Built
30 acres
2015
under-jtilized parcel of land' also apparently coLId not be used for agriculture
9.37 acres
2015
1
This is a covered parking lot
360 parking spots
2015
Twp.
Waynel City of
Size
Greenwood Solar Farm
StClair/ Greeiwood Twp.
2
Unused land on site of gasfired power olant
UpIc 180 acres on parcel o1475 acres
2016
Western Michigan Solar Gardens
Kalamazoo
1
Land part of WMU campus. Been a field since 2007 at jeast (Google Earth)
Almost 10 acres
2016
Grand Valley Solar Gardens
Ottawa' * Allendale Tp
3
Former farm field
17 acres
2016
City-owned land. One parcel of a 'former state-run Inslitulion that closed more than 25 years aco" and one parcel that had been leased out to a farmer
400 acres
2017
20 Acre park, 9.6 acres taken up by solar panels
2017
Lapeer Solar Farm
Lapeer/ City Lapeer
O'Shea Solar Farm
Waynel City of Detroit
2
Abandoned Park
Spartan PV 1, LLC
Ingriam/Cityof East Lansing
11
Five park ng lots
DG AMP Solar Coldwater
Branch/ City of Coldwater
Delta Solar Power I
Eaton' Delta Twp.
IKEA Canton Rooftop PV System
Wayne City cf Canton
of
24
.
2017
Midwest Foundry
7 acres
2018
Most land was ether vancart or farmland
190 acres
2018
Rooftop
162.000 square feet
2016
Resource Access One of the first steps in deciding where to place wind turbines and solar panels is identifying geographic regions where wind and solar access is sufficient for energy production. For a longtime, it was often assumed that Michigan did not hove enough wind or solar access to make large-scale renewable projects viable. As technology has advanced, though, this has been proven to not be true. Turbines are taller and solar panels are more efficient than ever. Maps (htti2s://www.nrel,gov/Q s/datatools.htm) and online calculators (htts:// pvwatts.nrej.qpv/) available from the NatIonal Renewable Energy Laboratory (NREL) help to show where there is ample wind and solar access in the state.
Transmission Access For utility-scale renewable energy projects, another key consideration is access to transmission lines and electric substations so the electricity can move from the project site to the consumers. The electricity grid Consists of different levels of lines that can handle varying levels of
Planning & Zoning News©114arch & April 2020
electricity transmission. High output projects like wind farms and large solar farms require the use of high voltage transmission lines, and tend to be located within a couple of miles of an existing line. Some wind projects in the state have built new substations to connect to those transmission lines, while solar projects have tended to try to tap into existing substations. The online Energy Zones Mapping Tool (EZMT) from the U.S. Department of Energy includes layers with transmission lines and transmission-level substations. Smaller utility-scale solar projects produce somewhere in the 1-5 MW range. These projects can be connected to exsting distribution lines, so long as there is Capacity on the system. These smaller projects are particularly sensitive to current electrical infrastructure capabilities, as they cannot typically afford to pay to upgrade infrastructure as part of the project. While there are not good online maps of distribution-level electrical lines, your local utility should be able to help you identify where there might be lines with existing capacity in your community.
As noted earlier, one of the reasons that renewable energy is posing new challenges—and opportunities—to planners is that it is shifting the geography of energy. In part this is because, on a per MW basis, renewable cnergy power plants take up more land than conventional power plants (though when you consider the land required for coal mining or natural gas drilling, there are fewer disparities in this number). While a 1.000 MW conventional power plant might take 100 acres, 1.000 MW of solar requires anywhere from 5,000-7.000 acres, and a 1,000 MW wind farm could easily span 100.000 acres, though typically only 500 of those acres are actually occupied with the wind turbines and turbine access roads (typically 1-2 acres per turbine). This is one of the reasons why rural communities are often sought out for wind energy project locations. Farmland in particular is sought out by both wind and solar developers because it is generally flat, has already been cleared of trees, and typically has a relatively affordable land price with relatively low township taxes. These are the same reasons that farmland has been desirable for so many other types of development projects. But neither wind nor solar projects must be confined to farmland. Some wind projects, particularly in other parts of the country, have been developed in more forested areas, often on ridgelines. Soar is possible on pretty much any property that is not shaded from S the sun. Solar is also often possible on brownfields sites (the Environmental Protection Agency has a program called "Brightfieids" which provides case studies and considerations for using brownfields for solar). though typically these parcels are not large enough for large-scale solar facilities which typically require at least 500 acres of land. For wind development, it is important to note that wind developers rarely own the land that the project sits on. Instead. they enter into long-term leases with the landowner. Also, because wind turbines require unimpeded access to the wind. w:nd developers commonly enter into agreements with neighboring land owners to ensure those lands do not erect, for example, their own wind turbines or cell phone towers which might alter downwind flows. This is among the reasons that wind turbines soread across such large landscapes: turbines themselves cannot be lined up right next to each other. Solar farms. in comparison, have comparatively consolidated footprints, and while large-scale solar farms may span multiple parcels. solar developers try to keep these parcels contiguous. In addition to being on land that is free of trees which could shade the panels, solar is typically
the primary factors impacting a F7L'11m1w Year Goal State renewable energy developer's ability Mandatory 2026 IL 25% to site a project. This is particuVoluntary IN 10% 2025 larly true because, Mandatory Ml 2021 15% as noted, there -, are economies of 2025 Mandatory MN 25% scale associated 2026 Mandatory with renewable OH 12.5% energy. Zoning or2021 Mandatory PA 18% dinances that limit wind or solar to 10% 2015 Mandatory WI ' only a small area Note. The Michigan Clean. Renewable and Efficient Energy Act of 2008, of the commuamended in 2017. set a goal that not less than 35% of the state's electrical nity or in isolated needs be met through energy waste reduction and renewable energy pockets within by 2025. individual propersited on flat land or those with a very genties may make a tle slope, to avoid topography changes in project financially infeasible. On the othwhich one row of panels would shade the er hand, zoning ordinances that provide others at some portions of the day. many opportunities for renewable energy In terms of land ownership, some solar development might attract developers to a developers do enter into long-term leases community with otherwise mediocre wind with landowners, as is done with wind deor solar resources. The zoning ordinance velopment, while other solar developers effectively sends the message to potential purchase the land outright. This is largely developers that the community is 'open because. while wind turbines occupy a for business' or that the developer should relatively small portion of the land under not bother trying to site a project in the lease (and so most of the land can concommunity. tinue to be farmed), solar development While there are many variations on how typically occurs on most of the land that to consider renewables in zoning ordiis under lease. While some niche farming nances, it is important to understand that opportunities exist under the panels (e.g., by not addressing the subject at all, a comsheep grazing, hand-harvested vegetamunity is likely prohibiting renewables in bles, and bee-keeping), most solar farms a way that constitutes exclusion of lawful as currently deployed in Michigan do not land uses in violation of the Michigan Zontypically have active farming. ing Enabling Act (MZEA, MCL 125.3101, et seq.). This is due to the fact that zoning Environmental Permitting in Michigan is structured so that any land Developers have to comply with various use that is not specifically listed in the zonstate and federal environmental regulaing ordinance is generally prohibited. At tions. At the state level, developers must the same time, Section 207 of the MZEA acquire a permit from the Department of provides that a community is not permitEnvironment, Great Lakes, and Energy ted to exclude a lawful land use in the face (EGLE) if the proposed project is close of a demonstrated need unless there is no to any wetlands or other regulated lands, appropriate location for that land use in including brownfields. At the federal level, the area. In effect, unless there is no cathe Endangered Species Act protects the pacity in the electric grid system for power habitat of any species that is on the Engenerated by utility-scale reneviables. or dangered Species List. For wind energy in no viable wind resource. communities are Michigan, this is most commonly associrequired to provide for them, as there is ated with protection of bald eagles. demand for power produced by alternative energy (at least for the foreseeable Zoning future). However, communities are given As might be expected. zoning is one of wide discretion as to the contents of those
Table 4: Renewable Energy Goals of States in the Midwest
zoning regulations. Restrictions to certain locations, or regulations on height, setback and noise are common regulations. Such regulations should be consistent with the goals of the local master plan. and the regulations must be reasonable. The standards cannot be set at a level that effectively excludes a lawful land use. What this means in practice is that corn- munities should determine whether, how and where utility-scale renewable energy fits within their community, plan accordingly, and then set zoning regulations that reasonably match that intent
Benefits and Drawbacks of Utility-scale Renewables
There are uridoubzedly environmental benefits at the state, notional, and global scale associated with a transition to clean energy. Our state has already begun to see the effects of climate change, and these effects will only increase in coming years. There is no shortage of data telling us that climate change is exacerbated by land use decisions (such as those that discourage high-density development in urban areas), but also that climate change will require land use changes in the form of clean energy development to limit the growth of greenhouse gases. As a result, there is a clear need for communities to provide opportunities in their zoning ordinances for clean energy production. Similarly at the national level energy security is a particularly high priority. At the moment, energy production is dependent on not only domestic supply of fossil fuels, but foreign supply of fossil fuels as well. Trade deals, conflicts, and a large portion of U.S. foreign policy has an energy security component as the government works hard to guarantee a cheap and constant flow of fossil fuels. Communities providing opportunities in their zoning ordinances for clean energy will help enable the United States to guarantee an energy supply to the country without concern over price fluctuations and global conflicts that could jeopardize electricity flow in the country. Furthermore, zoning ordinances that create opportunities for renewable energy can improve the air quality in communities across our state and nation that currently host fossil fuel power plants. These plants emit particulate matter that exacerbates various health problems like asthma, and other respiratory diseases, as well as Table 5: Michigan Communities that have Passed 100010 Renewable Energy Goals cause cancer with prolonged exposure. Historically, these power plants have been Goal city State sited in historically disadvantaged corn2035 100% renewable for city operations Ann Arbor Ml '' munities, like communities of color or low income neighborhoods This has led to 2025 100% renewables Grand Rapids Ml an increase in negative health impacts to these populations. Transitioning to clean 2035 100% clean energy citywide Ml Petoskey energy removes this burden from those 2040 100% renewables community-wide Traverse City Ml communities. These are all valid reasons why each 2035 100% reriewables for municipal Ml Meridian Township community should consider providing opportunities within their master plan and 2025 100% renewables Ml Northport Village zoning ordinance for renewable energy.
Planning & Zoning NewstMarch & April 2020
Figure 4: Comparison of Wind Turbine Heights Over Time in Michigan
Wind Turbine Size: Michigan
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Note: New silos may be 300 feet tall, whereas older silos often ranged from 30' to 100. At the very least, doing so will help meet the energy needs of their own community. But there are other benefits and some negative impacts in certain situations that should also be considered. Following are some of the common community-level benefits and potential negative impacts of wind and solar energy production.
Benefits Utility-scale wind and solar projects offer many of the same benefits to communities who host these projects. Landowner Payments As mentioned earlier, wind developers often enter into leases or other contracts with property owners in the project area, many of whom may not actually have a wind turbine sited on their property. For solar development, the developer either cases or buys the land on which the solar panels will sit. While the value of these eases varies across the state. it can be on the order of a few thousand dollars per year for wind, and commonly the going and rental rate for solar. Research conductec by the University of Michigan in Michigan communities with existing wndfarms has found that landowners often use the revenues that they receive from wind leases to reinvest in their property: improving the barn, buying new equipment, tiling their fields, and improving their home. These landowners also are able to solidify succession plans. as they now have a guaranteed revenue stream that helps to weather times of low crop prices or drought/flooding. Sotar leases are often even more lucrative Planning & Zoning News'JMarch & Apr72020
to the landowner than a wind lease, allowing landowners an additional revenue stream—and not just for farmland owners, but in the case of solar on brownfields. for the owners of these under-utilized properties. Examples of solar on brownfields in Michigan include projects in Goldwater (1.3 MW on a demolished foundry site), East Lansing (0.6 MW on a landfill site), and Cadillac (0.5 MW on a former industrial site). Tax Revenue There are also community-wide economic benefits from renewable energy. The infrastructure of both utility-scale wind and solar projects are taxed as personal property, and because both constitute relatively high dollar value investments, this can translate into significant tax revenues. While the exact amount will vary depending upon the size of the investment and the local millage rate, a case study we developed from Shiawassee County - where both a wind and a solar project were proposed - found tax payments for both technologies to average roughly $100,000 per MW over the 25-30 year life of the project. Notably, both wind and solar currently have multiplier tables set by the State Tax Commission that reduces the taxable value over time, so commu-nities would see the largest tax benefits in the first few years of the project. Also, some (mostly urban) communities may be eligible to give tax incentives for personal properly taxes, including for solar farms. For a better understanding of what tax revenue might be possible in your community. contact your assessor.
Employment According to a 2019 report from the non-profit E2. 10,202 Michiganders are employed in the renewable energy industry statewide. However, not all—or even most—of the jobs in the wind and solar energy industry are in the communities With wind arid solar farm projects. Many of the jobs are in the manufacturing and construction sectors. What is often of most interest to communities who are considering hosting renewable energy projects is how many long-term local jobs will be created that will stay in that community. University of Michigan's research into Michigan clean energy projects finds that for wind energy, there are between 7 and 11 lorig-teriTi operations and maintenance jobs in or near the community where the wind farm is sited for each 100 MW, so a 200 MW wind farm would be expected to have 14-22 long-term local jobs. There is less information on solar jobs in part because that sector is currently so much smaller in Michigan, but as a single datapoint, the solar farm under construction in Shiawassee County is projecting 4-6 long-term jobs based in or near Shiawassee County. Local Environmental Benefits Specifically for solar energy, there is potential for water quality improvements depending on what is planted under the panels and what was planted prior to the solar development. Since solar is often (though not exclusively) sited on farmland, it often displaces crops that would have had fertilizers and pesticides applied, which can cause downstream water quality prob-
ems if not properly managed. Planting ground cover aimed at retaining the soil and minimizing fertilizer use may lead to downstream benefits (the Department of Energy is currently funding a study to quantify these benefits). Water quality benefits may also accrue in urban environments, where large-scale so:ar developments might provide site improvements including stormwater management to alleviate downstream flooding. [Stormwater detention or retention basins may not be a good idea on farmland if the intention is to farm the land again.] Furthermore, planting native plants or pollinator habitat under solar panels is an easy way to increase hiodiversity in areas that are historically dominated by monoculture. which may provide additional ecological benefits for neighboring lands. Drawbacks While there are many global and local benefits of renewable energy, it is important to remember that every energy source has some negative impact (which is why energy conservation is so important: the cleanest energy is the energy that does not have to be produced) It is important for communities to understand those drawbacks ahead of time, so that they can both tailor their own expectations. and figure out whether and how these technologies fit within their community. Human Health impacts Given zoning's objective to protect pubic health, safety, and general welfare, concerns about health impacts are common when renewable energy is proposed. For both wind and solar, this often takes the form of concern over noise, as both wind turbine blades and the inverters utilized within a solar array do emit sound. We were unable to find any studies specifically considering solar farm noise, but many exist for wind energy. Most of this research has found that there are no direct human health impacts from wind turbines. There is ongoing research into the indirect impacts of wind turbines, specifically in determining whether or not wind turbines can induce stress or annoyance in local residents, which may lead to other human health problems. Additionally, there is evidence that the shadow flicker from wind turbines could negatively affect those with epilepsy, though occurrences of negative outcomes are rare. New turbines are built to spin at a slower rate than older turbines, making the impacts of shadow flicker less prevalent, and turbines can be programmed to not operate when shadow flicker might affect an epileptic person's home, for example. Wildlife Impacts The most immediate impact to wildlife from both wind and solar projects is the displacement of habitats during construction. While many wildlife will return fol-
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lowing construction, that may not be the case if the project impacted niche habitat. For wind farms, there is often concern over the long-term impact on birds and hats. Many environmental organizations, including the National Audubon Society. support properly sited wind energy, as it helps mitigate climate change which poses an even graver threat to species. Research and recommendations on best practices to avoid conflict with wildlife is available from the American Wind Wildlife Institute, among other sources. For solar farms, one consideration is that the National Electrical Code requires developers to fence in the solar array which may impede large wildlife movement. Visual Impacts The primary and undeniable concern about utility-scale renewable energy projects is that they change the landscape. This is clearly evident for wind turbines. At 500-600 feet tall, modern wind turbines are impossible to conceal, and the red lights atop of the towers—which the Federal Aviation Administration (FAA) requires-. are visible from even greater distances at night. [The FAA has approved a technology that would activate the lights only when an aircraft is within the vicinity of the windfarm, but that technology has not yet been deployed in Michigan.] This is particularly relevant In communities where aesthetic considerations are a high priority—for example, areas where the economy is based on tourism, or where a high number of people live in the area for its' rural character." University of Michigan research from across Michigan finds that property owners who see the landscape more for its productive value (for example, as a good place to farm) tend to be more supportive of wind turbines than those who place a higher aesthetic value on the landscape. While the most rigorous property value studies in the U.S. have found lithe to no impact on property values as a result of wind development. the reality is that most windfarms in the U.S. are in the "wind-bell "from Iowa down through west Texas, where productive landscapes dominate. Generally, the visual impact of solar farms is far less than wind farms, and is largely limited to those that drive by. Even so, when solar is proposed on farmland, this divide between those who have a productive versus aesthetic view of the landscape often arises. For a person who built a house in a township to enjoy a bucolic rural setting, having solar panels across the road—or even surrounding their home— Is a significant change to that vision. Solar or brownfield sites, by comparison. may actually be seen as an aesthetic improvement. particularly if the property was historically poorly maintained. Impact to Farm Economy Wind energy is generally seen as a benefit to the economy in farming commu-
nities. as it diversifies farm incomes and lakes little to no land out of production. For solar energy, there are more questions about the Impacts that large solar arrays may have in farming communities. Some of the concerns relate to the long-term farmability of the land: will the land be able to be farmed at the end of the solar project's life? While this question is rarely asked of other land uses in farming communities (for example, golf courses are often allowed in agricultural districts, though that land would not necessarily be farmable again), given the scale of solar projects on the horizon and that prime farmland is a limited commodity, it is a reasonable concern. There is nothing inherent in solar development that would make the iand unfarmable: the panels and support posts can all be removed. It is unknown what long-term impacts solar farm driving paths or the concrete pads on which the nverters sit will have on farmland, particularly with respect to soil compaction. But these tend to be a relatively small percentage of the land area of a solar farm. A bigger concern for long-term tarmability is local requirements, for example. to provide on-site stormwater detention, plant landscaping, or to berm as a screening mechanism. This movement of topsoil or planting of trees may jeopardize the ability to farm the land in the future. The guidelines outlined in PA 116—to maintain the field tile and plant pollinator habitat and other environmentally friendly ground cover—are good models to follow to help ensure the future ability for the land to be farmed. Another concern of particularly large solar arrays is what impact they will have on agricultural supply chains in farming communities. To be sure. even if the state were to get 100% of its power from solar energy, it would only cover a small portion of the state's farmland (and again, solar development is possible on rooftops and brownfields). But within any one county, the impacts of many thousand-acre solar farms may incrementally impact farm economies: fewer people buying tractors, selling their products through the co-op, buying seed and fertilizer, etc. These declines might be offset by additional local economic activity either directly related to solar energy or induced by landowners with solar leases who spend those lease revenues in the community; but to date, there has been no systematic study of this, in Michigan or elsewhere. The University of Michigan and Michigan State University have recently jointly proposed research into this topic.
The Planning Imperative Since utility-scale renewable energy is a relatively new land use to Michigan, it is understandable that not all jurisdictions have provided for it. EGLE's Michigan Zoning Database finds roughly half of zoning ordinances in the state mention Planning & Zoning News©IMarch & April 2020
utility-scale wind energy (49%) or smallscale wind (56%) while 27% mention small-scale solar and just 19% mention utility-scale solar. This is problematic, though, because communities without any regulations end up being reactive rather than proactive. As with most types of land development, the strongest community reaction comes when a large scale proposal is made. This is no different with utility-scale renewable energy projects. When communities plan and zone for renewable energy facilities prior to a project being proposed, they have the benefit of time to more thoughtfully consider whether, how, and where it fits within their community. Proactive planning can also either send a message to developers that your community would welcome a renewable energy development or not. The proactive response of Gratiot County has been celebrated nationally as a model for how to get ahead of energy development with a collaborative process to understand how renewable energy fits with other long-term community goals. See sidebar.
Planning for Renewable Energy As wind and solar energy become more prevalent in Michigan, it is increasingly important that communities have comprehensive plans that encompass renewable energy. This can be done in a few different ways, most often by integration of a section in the master plan or in specific functional plans like a sustainability plan. The first step of this process is determining how renewable energy fits into the tong-term plan for the community and the overall vision that is likely already in your master plan. There are many considerations that should be taken into account when determining the role of renewable energy in your community. First, you might consider whether the environmental or energy security benefits of renewable energy resonate with the other goats of your community. This need not suggest carte blanche support for renewable energy at all scales, but would help set the stage for considering opportunities for small-scale systems. For example, some communities may have a goal of allowing homeowners to produce some of their own electricity to offset reliance on the grid. Secondly, as it relates to larger utilityscale systems, it should be considered what role wind or solar energy might play in the community long-term economic development plan. if your community has economic development goals focused on a diverse or expanded tax base. renewable energy could serve as an action item to contribute to that goat. If your primary economic development goal is to establish a large number of permanent full-time jobs, utility-scale renewable energy development might not be as strong of a supporting action. You should also consider how renewPlanning & Zoning News©/March & April 2020
Collaborative Planning for Renewable Energy: Gratiot County By Jessica Crawford, Michigan State University
History of Collaborative Planning Gratiot County has used collaborative planning between residents, businesses, and municipalities since the 1970s. In 2008. Greater Gratiot Development. Inc. (GGDI). a public/private partnership devoted to economic growth, worked with local leaders to apply for and receive funding from the Partnership for Change to suppor4 the formation of a countywide master plan. In 2011, the Gratiot Regional Excellence and TransformatIon (GREAT) plan was the first of its kind in Michigan to establish collective goals for renewable energy across municipal boundaries.
Exploration of Wind Wind developers oegan approaching Gratiat County during the creation of the GREAT plan because they saw the logistics associated with jurisdictiois' universal ambitions as an opportunity. Wind Resource, LLC found that the county had suitable wind as well as grid availability residing from industries that left in the 1970s. As a result, the developer prompted the county to consider wind energy. Information was shared with the community as the idea of wind energy began to he explored. The developer was instrumental in offering technical assistance, knowledge. and even guided wind farm tours for those who wanted to experience wind in action. Michigan State University Extension experts also hosted an education session open to the public. People exressed little to no opposition towards wind energy which encouraged authorities to move forward in turning this concept into reality.
Public Engagement The same collaborative framework used to form the GREAT plan was followed to simultaneously establish a countywide wind ordinance, The creation of this ordinance was fully transparent to attempt to disclose and address any concerns about wind energy. The county out out widespread notices for the ordinance meetings through newspapers, radio, and social media. Anyone could participate in crafting the wind ordinance if they des red. As many as 300 people attended any of the given 20+ meetings. It took two years to articulate and formulate Gratiot County's final wind ordinance. The county ordinance was the template for other municipalities to use. which 14 of the 16 townships adopted. Gratiot County Wind was the first project to go online just a year after the GREAT plan and wind ordinance were completed. Invenergy became the developer of the project while Wind Resource, LLC stayed on as a consultant. Over 250 families signed on to be part of the oroject area. A "pooling easement' was produced to grant each of these families a lease payment even if they did not host a turbine. Negotiations for land leases occurred at the same time as the wind ordinance public meetings. After this project was built, the residents regrouped to initiate an increase in the ordinance's setback distance from 500 feet to 1,000 feet from a building. No major changes have been made to the document since. The expansion of wind projects has continued to progress in Gratiot County. Currently, the county has 217 wind turbines and two more projects under development. The prevalence of wind farms has provided landowner payments, jobs, tax revenue, and electricity to the region. able energy fits into your existing land use mix and future land use plan. With this, you must determine what kind of renewable energy and at what scale of projects the land use classes/districts in your community can support. Wind developments typically require more land than solar due to the size of the turbines. Large amounts of contiguous land are often required to support utility-scale wind and solar energy projects, while smaller projects may be more amenable to a diverse land use mix and can be implemented into more zoning districts. If your community has a large amount of agricultural land and if farmland preservation is a land use goal, utility-scale wind energy development might be a good fit. If there is already substantial residential development in your
agricultural areas, solar might be more appropriate If your community's primary land use is industrial, both wind and solar could be accommodated, but with attention paid to existing water and sewer infrastructure—neither solar nor wind require this infrastructure and so preserving those lands For land uses which require sewer and water connections might be more appropriate. If there is already considerable residential development, or your future land use plan calls for expanded single or multiple-family residential, large-scale renewable energy may not be compatible, but small-scale accessory solar might be suitable. Incorporation of renewable energy development into your master plan is a good opportunity for community engagement,
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as is a good standard practice for any amendment to master plans. Community participation can allow an opportunity to demonstrate the benefits and drawbacks of renewable energy, as well as got input from residents and a sense of the community's understanding and acceptance of incorporating wind and/or solar development. While amending your master plan to cover renewable energy, there is an opportunity to incorporate energy informa-
tion into your 'existing conditions and trends" section that may provide support for the introduction of wind and/or solar into your community. This information could include a baseline assessment of energy usage in the community and the current mix of renewable and non-renewable energy sources and development within your jurisdiction's boundaries. This is also a good opportunity to identify areas in the municipality that have the greatest potential for wind or solar development by incorporating information on the quality of wind resources and existing transmission lines and substations. This analysis can also be used to help guide future zoning decisions. Once you have determined how and where wind or solar energy fits into your community, you can incorporate renewable energy into your planning goals and objectives. One way to do this is to use the development of wind or solar energy as a way to reach existing goals. For example, renewable energy development can support economic development goals by expanding the property tax base and providing additional income to landowners through landowner payments. If farmland preservation is a goat in your master plan, wind energy specifically offers an oppor-
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tunity to help farmers diversify while still sustaining their agricultural production. Wind and solar might also be appropriate if your plan calls icr increasing opportunities for on-farm income generation. If you have goals focused on sustainability in the community, renewable energy serves as a cleaner energy source that harnesses natural resources without depleting them. Another way to incorporate renewable energy into your goals is to create new goals specific to energy. For example, communities might consider a goal of diversifying and localizing the energy base through renewable energy production. For solar specifically, there are a few additional considerations to take into account relative to your land use mix and goals. Solar, more than wind, presents an economic opportunity for development of brownfield sites and vacant or compromised land. Solar energy requires less site remediation than many other uses, so it can offer a good development opportunity for sites that have challenges in terms of redevelopment. Additional considerations for solar include competing uses, particularly with historic districts. If historic preservation through historic districts is a main goal of your community, the role of solar relative to aesthetics should be carefully taken into consideration. Because of their scale and land use requirements, most of the existing and proposed large-scale wind energy projects cross township boundaries. Increasingly. large solar projects that are being proposed also cross township boundaries. As the Gratiot sidebar demonstrates, a county wide or at least a joint plan among several adjoining jurisdictions often makes the most sense, particularly if the area is interested in attracting renewable
energy development. Coordinated planning and 2onirg makes it easier for renewable energy developers.- and community members—to understand what rules are in place throughout the area, rather than having to deal with a patchwork of different zoning regulations
Zoning for Renewable Energy Once the role of renewable energy in your long-term plan is established, it is vital that your zoning matches what has been established in your master plan and is consistent with what you have decided about wind and solar energy development in your community. The zoning specifics matter here, as these requirements are what allow effective implementation of renewable energy. It is crucial that zoning language and regulations are thoughtfully and clearly laid out in your ordinance. since these can minimize or maximize opportunities for wind and solar development and aid or impede future application and enforcement. For utility-scale renewable energy development, this sends developers the message about whether or not they should come into your community. Ills also important for small-scale accessory uses. as clearly laid Out requirements allow homeowners and business owners to more confidently work with a solar installer, for example. A caution though: beware of taking regulations suggested by supporters and opponents of renewable energy and simply averaging, for example, the setback distances to try to accommodate both audiences. Rather than satisfying both groups, this approach tends to satisfy neither, but can have real consequences on either making renewable energy deployment commercially viable or not in your com-
Planning & Zoning NewsiMarch & April 2020
What Can be Learned from Huron County? Relevance of Huron County Huron County, the tip of Michigan's Thumb, has some of the best wind resource in the state. In 2009. a report from the Wind Energy Resource Zone Board identified the Thumb as having the highest potential to produce wind energy to meet the states renewable portfolio standard, but noted the Thumb lacked transmission capacity to bring the renewable energy to load centers elsewhere in the state. This report paved the way for construction of a 140 mile transmission line—the Thumb Loop.—to enable power generated by windfarms in Huron, Tuscola, Sanilac, and St. Clair counties to connect to existing electrical infrastructure north of metro Detroit. For much of the last decade, the Thumb—and Huron County in particular—has been Michigan's wind capital. The county's first two utility-scale wind projects went online in 2008. Subsequently. eleven more projects were built in Huron County. As a result, the County's 13 wind projects account for about 41% of the state's total wind capacity (870 of the state's 2,139 MW).
The County chose to regulate utilityscale wind energy through an overlay district. As a result, once a wind energy overlay district is applied, turbines can be sited within that district after a straightforward site plan review. However, because every wind project effectively requires a rezoning to apply the overlay district, each of these projects is subject to a referendum petition. This allows all voters who are registered in townships covered by county zoning to vote on whether the overlay district should be approved. In 2010, a ballot measure challenging an overlay district that spanned four townships passed with 59% of the voters supporting the district.
No Longer the Wind Capital
This growth of wind energy in Huron County was aided by planning and zoning that largely viewed wind energy development as a land use generally compatible with the County's agricultural goals, particularly related to farmland preservation. This was the yew taken both by the County—which is responsible for zoning 16 townships—as well as by a number of other townships in the county that are self-zoned.
Though the projects approved through the 2010 ballot referendum were constructed, wind energy became increasingly divisive in Huron County. In 2015, the Planning Commission issued a moratoria on wind development to consider changes to the zoning ordinance. The County made changes to the ordinance and subsequently approved two new overlay rezonings. Enough signatures were gathered to put these rezonings before voters on the May 2017 ballot, and both were rejected by 63% of volers. For all intents and purposes, any wind developer interest in Huron County has stopped. The County is currently undergoing a review of its Master Plan, and while not yet finalized as of March 2020, the draft Master Plan indicates that the referendum vote and a resident survey suggest that support for future wind development is uncertain.
munity. Instead, it is better to fall back to your master plan and determine whether and where renewable energy—at different scales—is compatible and incompatible with those goals, and then adopting an ordinance that is more tailored to achieving that end. Remember that zoning for renewables need not be all or nothing: you do not have to zone the whole community as eligible for renewable energy development or conversely create an ordinance where renewables are not allowed anywhere. As with other uses, you can designate certain zoning districts as eligible and decide which districts in your municipality are appropriate for development of wind and solar energy, and at what scale (from on-site use, to large utility-scale). It is very common to have different regulations and zoning requirements based on the scale of projects. Smaller-scale systems, especially solar energy systems,
are often permitted ny-right as an accessory use and allowed in most districts. Utility-scale systems tend to not be permitted by-right, but rather as conditional or special permit uses, and to be confined to certain districts. Another option sometimes utilized for utility-scale projects is overlay zoning. While the land retains its base zoning designation. you also 'overlay" regulations specific to a particular lane use (in the case of energy development, it would tend to be an ordinance that would be more permissive of renewables). You could proactively apply that zone to some areas of your community. for example, if only the farmland on the eastern side of your township is appropriate for utility-scale wind, or if you want to identify particular parcels in your city that are appropriate for utilityscale solar development. This approach would typically also allow developers who may be interested in siting a project out-
Huron County's Planning and Zoning for Wind
Planning & Zoning News'March & April 2020
What Happened in Huron County? No one knows for sure. There is some speculation that Huron County just reached a saturation point: that people decided existing wind turbines were enough. However, that idea is not ubiquitous, and research from other states and nations with wind has not consistently supported the idea of a satdration point. One reason explicitly called out in the Master Plan review likely has to do with tax payments. The State Tax Commission has changed the tax table for wind turbines three times since it was initially adopted. often resulting in less money going to local governments than what was originally expected. This has led to legal disputes when wind developers appeal their tax assessments to the Michigan Tax Tribunal. It has also meant that local governments are hesitant to make long-term plans for the tax revenues associated with wind development since there is still some uncertainty about the revenue stream. Another possible reason that there has been such a change in Huron County's approach to v/md development may be that—as the first in the state—there was a learning curve for both communities and developers about how wind best fit in communities, and how to best engage residents in planning for renewable energy. Many of those lessons have been documented in "Lessons Learned: Community Engagement for Wind Energy Development in Michigan" (see Wind Resources on backcover) and are increasingly becoming standard practice in planning for wind. Many are also trying to apply these same lessons to solar energy as it emerges as a larger player in Michigan.
side of these designated zones to apply to have the land rezoned to utilize the overlay district. This overlay district model is used by Huron County. Sec sidebar above. There is no shortage of models and sample ordinances available online to assist with alternative energy zoning. Links at the end of this article point to an online cLlrated" repository of guidance on the Michigan Department of Environment, Great Lakes, and Energy's (EGLE) website, which provide sample planning and zoning tanguage, along with annotated rationale behind them. EGLE also has a database of zoning ordinances from across the state, noting which have regulations for renewable energy systems of varying sizes so that communities can see models from similarly situated places. See page 16. Remember that these communities may have different goals than yours in either minimizing or maximizing opportunities for energy development. Do not just
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copy and paste regulations from another community. There are a number of land use specific standards that are commonly taken into account relative to wind and solar energy. Some of the primary considerations are discussed below.
Wind Energy Setbacks
Setbacks are extremely important for wind energy development, both for ensuring safety and for determining the commercial viability of a project. The larger the setback distance, the more difficult it is to site wind turbines. Turbines are typically set back at least 1-1.5 times the height of the turbine from the property line for safety considerations. Many communities have different setback requirements based on surrounding land uses (e.g., from residentially-zoned property, roads, streams, etc.). Zoning requirements can also differentiate between setbacks for adjacent participating properties and nonparticipating properties. To understand the impact that varying setback distances have on the ability to site wind turbines, it is highly recommended that communities use GIS analysis to model varying setback distances before making a decision. Height Turbine height is often used within ordinances to differentiate between smallscale and large, utility-scale turbines. Some ordinances also set a height limit. Because the trend has been for wind turbines to get taller over time, the height of a normal" or 'typical" turbine has also grown. There are numerous instances
in Michigan where ordinances that were written a decade ago to attract wind development no longer achieve that objective because the height limit in the ordinance has not kept pace with the technology. Conversely, if your community has a reasonable rationale for limiting infrastructure height and does so for other land uses (such as cell phone towers), setting a height limit of anywhere under 300' is unlikely to result in a wind farm development, as turbines used in modern windfarms are at least 450' tall (from ground to tip of blade). For this, and other reasons, it is important to frequently reevaluate zoning ordinance standards for wind energy development. Noise '1 here are many different ways to measure noise in terms of the measurement technique, over how much time noise is measured. and from where the measurement is taken. Also, there is conflicting guidance on health-based standards, in part because of the on-going research on the adirect health impacts from noise annoyance. The World Health Organization (WHO) has issued a "conditional" recommendation for the European Region of 45 dBL,,: there is not a commensurate recommendation n the U.S. Communities should consider how their community regulates noises from other land uses. Adopting a reasonable standard that is not exclusionary on its face may be very important in a future legal challenge. As science changes, the reasonableness of standards should be reexamined to ensure they remain lawful.
Visual Impact An ordinance can require measures that minimize the visual impacts of turbines. This includes the use of non-obtrusive colors, like white and gray non-reflective surfaces. A typical practice is to prohibit advertising or signage on the turbines, as well While the FAA will require lighting, communities can consider requiring that developers seek approval from the FAA to use an Aircraft Detection Lighting System (ADLS). This new technology only activates the red FAA lights when an aircraft is nearing the windfarm, reducing the hours that the red lights are on in most communities. Note that the FAA may not approve ADLS for all windfarms (which is why you would want to require the windfarm seeks approval, and not necessarily require its use;. This technology would add additional cost to the windfarrn which may make your community less attractive to a wind developer. But, this may be one way to address public concerns over red lights. Shadow Flicker Many ordinances require an analysis demonstrating which properties or residences might be impacted by shadow flicker. Some ordinances set a maximum threshold for flicker while others require mitigation measures such as planting vegetative screening or programming turbines to not spin during the time of day (and time of year) when they may adversely impact neighboring residences. Decommrssioning Many ordinances require developers to submit a decommissioning plan, explaining how the turbines will be deconstructed
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P!enning & Zoning NewsYMarch & April 2020
at the end of their useful life. This may be appropriate since there is specialty equipment required for constructing and deconstructing turbines. Requirements for a decommissioning plan could include an outline for the life of the project, decommissioning costs, and the planned procedures for removal of equipment and restoration of the site. It is also common that municipalities require a financial guarantee or surety bond for decommissioning.
Solar Energy Temporary or Permanent Installation Zoning regulations for utility-scale solar should be based on whether the solar array is to be a long-term or temporary/transitional land use. This distinction is true in both urban and rural environments. Utilityscale solar installations on brownfields, for example, may be seen as an opportunity to generate lease and tax revenue that can then be used to remediate the site for future development as another use. Solar installations on farmland can be seen as a temporary opportunity to diversify farm incomes, with the expectation [hat the land will be farmable again in the future. Or, in both cases, solar energy may be seen as a long-term land use. Site improvements such as landscaping, stormwater management, and decommissioning could be substantially different depending on whether the use is considered a temporary or longterm use. Setbacks For both smaller-scale accessory uses and larger solar developments, it is typically recommended that solar energy projects follow the setbacks for the zoning districts they are located in. In reality, the setback may be greater as it typically makes sense to leave room between panels and property lines in order to avoid shading from neighboring vegetation, which reduces solar production. If a utility-scale development is located adjacent to a residential use, communities might consider adding an additional setback requirement if the district standard is considered too small.
Height For both small-scale accessory and utility-scale solar prolects, it is typically recoinmended that height restrictions follow those of the zoning district they are located in. It is not likely that the district requirements will overly restrict the solar developments. For rooftop accessory uses, the accessory height restriction may be different than the standard district requirement. Some communities, for example, allow rooftop panels (especially those on fiat roofs) to exceed district height requirements so long as the rest of the building conforms. Reflection/Glare If glare is a concern, you can require measures to be taken to minimize the effects of glare from the panels on adjacent
Planning & Zoning News©/March & April 2020
properties and surrounding roads. This can be done by changing the location, orientation, or design of the solar panels, or by erecting a small shield, fence, or berm
Visual Impacts It is also an option to regulate the visual impacts of solar energy developments by requiring that visibility of panels is limited from residential structures and public uses or, in the case of small-scale ground mounted systems, screening the back side of the panels, as with fencing or landscaping. For utility-scale systems, some communities require landscaping or other screening between panels and residential uses. Communities that require landscaping along roadways may consider extending this to solar energy systems. However, caution should be taken with these provisions, as requiring panels to be too far out of vision or screened with landscaping can dramatically limit energy production. As noted earlier, these screening requirements are generally only appropriate if the solar land use is considered a long-term land use.
Lot Coverage/Storm water Management Some communities have concerns over solar panels adding impervious surface and have set policies to limit lot coverage. This is appropriate where solar is seen as an accessory land use, as with small-scale systems But for utility-scale projects, which may make use of an entire parcel— and often many parcels—lot coverage maximums tend to prevent development. Typically, stormwater management is not a problem for ground-mounted systems, so long as they are planted with vegetated ground cover. Where solar development is seen as an opportunity to address downstream flooding, requiring stormwater detention or retention may be appropriate. Note, though, that requiring such stormwater management is generally incompatible with goals that the land be able to be farmed in the future.
Decommissioning For utility-scale solar projects, most communities require developers provide a decommission plan at the time of site plan approval. This plan should include details about the decommissioning process including removal of panels and foundations, and restoration of the site. Where solar is seen as a temporary land use, it is common to require a financal guarantee or surety bond to ensure the project is decommissioned. Where a system is seen as a long-term land use, requirements for such financial guarantees might follow what your ordinance requires for other forms of development.
0
C 0
Summary and Conclusion As a result of market forces, federal anc state policies, and consumeremand, renewable energy is becoming an increasingly common way to generate electricity. While already present on the Michigan landscape, wind and solar energy systems at both the small- and large-scale will continue to be pursued in the coming years Proactively planning and zoning can allow a community to decide whether and where both small-scale and utility-scale wind and solar projects fit within their community, and communicate to both landowners and energy developers those positions. Furthermore, since energy technology is continuously changing, communities that have already established policies might reconsider whether their ordinance is accomplishing its intended purpose in light of the existing technology and development landscape. A number of communities across the state have already developed ordinances and many are being updated. A database of zoning ordinances, available on the Department of Energy, Great Lakes, and Environment's (EGLE) website catalogues which Michigan communities have incorporated energy into their zoning ordinances and links to the specific language. Table 6 and Figures 5-7 on page 16 are drawn from this new database. The EGLE website also has factsheets and case studies from wind and solar projects in the state, and a curated repository of planning and zoning guidance for both wind and solar. Links to some of these resources are included on the back cover, but the whole list can be found on the project website: htto;/Jcuphpm. urn ich.eduicli mate -energy/ energy-futures Further, EGLE has provided funding for the University of Michigan to answer questions and help develop additional resources to enable communities to plan and zone for clean energy. This includes providing presentations and technical assistance to communities who wish to learn more, and teaching a workshop on Clean Energy Planning administered through the Michigan Association of Planning. If your community has any questions, feel free to reach out to Dr. Sarah Mills at the University of Michigan (sbmitlsumich.eduj. J
15
Figure 5: Table 6: Renewable Energy in Zoning Ordinances Jurisdiction Type & #
~
Utility Wind
Utility Solar
SmallScale Wind
SmallScale Solar
Electric Vehicles
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d townsrps are unoer county zoning. wrucri is not separately renectec i n these numbers
NQ: The data in Table 6 and represented in Figures 5-7 are derived from the Wind and Solar Energy Zon i ng Ordinance Database collected by the Graham Sustainability Institute at the University of Michigan, under contract to the Michigan Department of Environment, Great Lakes & Energy. The database and these maps are available from MichigangovlEnergy (at httsJ/www, michioangov'climateandenergyIO458O7-364-85453---,OO. ijirn!). Additional case study resources are available at the project websile: httc://graham.umicheduIclimate-enerovfenerg futures (click under Products"). Additional resources and references are listed on the back cover.
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Planning & Zoning NewsJMarch & April 2020
AN EXAMINATION OF WIND ENERGY LITIGATION IN MICHIGAN & SUGGESTED PLANNING & ZONING IMPROVEMENTS By Mark A. Wyckoff, FA/CP. Editor
LITIGATION EXAMINED FOR THIS ARTICLE iting utility-scale wind energy pro jects has been controversial and has spawned litigation in widely different places in Michigan over the last decade. Some of that litigation has been resolved at the circuit court level, but a few cases have been appealed to the Court of Appeals, and some cases have been resolved in the federal court system. Local controversy typically focuses on: • The adequacy of commercial wind energy project zoning regulations; • Conformance or nonconformance by wind energy project developers with local wind energy regulations: prior to and after project approval: • A variety of nuisance claims related to interference with the pleasant use and enjoyment of residential property, including reduced rural aesthetics; • A variety of health claims involving low-frequency noise and infrasound from wind turbine blades (ranging from annoyance, to stress, to headaches, fatigue, and hearing problems), and eye and body tremor problems from the strobe effect or shadow flicker; • Concern over avian and bat deaths: • Concern over diminished property values; and The sharing of benefits from lease or property payments, or from mitigation measures implemented for a smaller subset of property owners, than some believe is fair. The parties involved in these controversies are often very committed to their cause for personal, public interest or a combination of personal and public interest reasons. As a result, they not only are active participants in local public meetings and public hearings regarding wind energy projects, but also frequently engage in conversations with local public officials, write letters to the editor. participate in radio and TV interviews, post internet blogs, and even go door-to-door for conversation and pamphlet distribution Sometimes they employ a variety of aggressive political tactics including intimidation, petition gathering, ordinance referendum, recall of elected officials, and running of candidate slates to replace existing elected leaders. If elected, they have been known to replace existing appointed officials like planning commissioners and to dramatically revise or replace local wind energy regulations, sometimes in exclusionary ways. While these measures have long been associated with various controversial land uses in Michigan, they have been used with considerable frequency and consistency in wind energy siting controversies. This may have to do with the existence of small national groups that provide technical support to local groups opposed to wind energy projects. One indirect benefit of common characteristics in local controversies, is that for those that wish to learn from such controversy, the likelihood is high that the nature of local wind energy conflicts in one locale will reappear elsewhere, along with similar tactics to challenge local decision making, or wind energy project managers. This consistency makes examination of some of the litigation involving controversial wind energy projects in Michigan more likely than not, to provide insights into local policies, procedures and practices that may contribute to controversy. It also presents the potential through thoughtful change in policies, procedures and practices to lead to a more even-handed, predictable, local regulatory development, review, approval and implementation process
S
Planning & Zoning News©/Marct, & April 2020
Tuscola Wind Ill, LLC v Almer Charter Twp. ot al. U.S. District Court Eastern District of Michigan. Northern Division. Case No. 17-cv-1 0497. • Opinion & Order Affirming the Decision of the Twp. Board of Trustees. Decided Nov. 3, 2017. • Opinion & Order Denying Plaintiffs Motion for Reconsideration & Denying Plaintiff's Motion for Sanctions. Decided March 12. 2018. Tuscola Wind Ill, LLC v Ellington Twp. et al. U.S. District Court Eastern District of Michigan. Northern Divsion. Case No. 17-cv11025. • Order Granting Motion for Judgment on the Pleadings as to Count One. Dec,ded March 13. 2018. • Opinion & Order Denying Motion to Enforce Judgment, Denying Defendants' Motion for Summary Judgment, Denying Plaintiffs' Motion for Summary Judgment, Denying Motion to Certify Interlocutory Appeal, and Dismissing Counts Two, Three and Four as Moot. Decided July 27, 2018. Garden Peninsula Foundation, et al. v Heritage Garden Wind Farm I, LLC. U.S. District Court Western District of Michigan, Northern Division. Case No. 2:15-cv-8. Decided July 13, 2017.
Forest Hill Energy-Fowler Farms, LLC v Bengal Twp., Dallas Twp. and Essex Twp. Case No. 319134. Decided Dec. 4, 2014. Unpublished. [Reviewed in P2W May 2015, pages 4-5; and excerpts are used for the case summary In the accompanying article.] Consumers Energy v Mason County. Case No. 322765. (La:<e Winds Project). Application for leave to appeal filed. July 18, 2014. Leave to appeal granted Feb. 10, 2015; ;oint motion for voluntary dismissal by stipulation granted Dec. 21 1015. [No opinion by COA.] Heritage Sustainable Energy v Schooicraft County. Case No. 331279. Decided Oct. 20, 2016. Unpublished. [Reviewed in PZN, April 2017, page 2: and excerpts are used for the case summary in the accompanying article.] Lockwood et al v Ellington TWP., et at. 917 N.W.2d 413. (Tuscola Wind Ill project). Decided March 13,2018. [Reviewed in PZN, Dec. 2018, pages 3-4: and excerpts are used for the case summary in the accompanying article.] Earl L Ansell, et at. v Delta County Planning Commission (and Heritage Garden Wind Farm). Case No. 345993. Appeal filed 101912018, case had oral argument 10/2/2019, decision is pending.
Out-of-Court settlements involving Michigan Wind I project ir Huron Ccunty, 2012 Out-of-Court settlements involving Consumers Energy Lake Winds project in Mason County, Oct. 2014. Out-of-Court settlements involving Heritage Garden Wind Farm In Delta County pending for all but two plaintiffs as of Oct. 7, 2019.
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This article presents observations gleaned from ten court opinions (involving six wind projects) in Michigan (see sidebar on page 17) and material on existing and proposed utility scale wind generation projects described in the feature article starting on page 2. Five of the opinions reviewed are from two U.S. District Courts, and five are from various panels of the Michigan Court of Appeals. The opinions reviewed are unlikely to be the only lawsuits that have been filed in Michigan involving wind farms, but the author believes they are representative of the scope of sucri litigation in Michigan. While review of only appellate court decisions would be better because more judges would have looked at the issues during two separate trips through the justice system, there are not that many appellate court decisions on wind energy projects and the lower court decisions that were examined are generally quite thorough at describing the conflicts. The article also presents observations about out-of-court civil settlements at the circuit court level involving wind energy companies and property owners that have dainied they have been damaged because of wind farm operation. Most of the limited information available on these private civil suits has been gleaned from newspaper articles. The article does not examine any of the many lawsuits related to local disputes over taxation of wind farms. The article concludes with observations and suggestions that may help inform improved planning, zoning, and approval of future wind farms in Michigan for municipalities, interested landowners, and the wind energy industry.
Four of these opinions deal with the same wind energy project in Almer and Ellington Townships north of Caro in the rolling farmland of Tuscola County. The project was called Tuscola Wind Ill and was owned by NextEra Energy Resources. LLC. At the time. NextEra was the largest generator of wind energy in the U.S. The project involved 55 wind turbines that would produce enough energy to supply 50000 homes with wind energy. It included agreements with 87 landowners (192 parcels of land). Because the zoning ordinances were unique to each township, the litigation focused on different issues in each township. Both sets of cases overlapped In time, and the same federal judge wrote all four of these opinions.
Tuscola Wind III in Almer Township, Tuscola County The litigation in Almor Township concerned Tuscola Wind's effort to secure special land use permit (SLUP) approval. Most ordinance requirements were met by the site plan and submittal package, but issues remained concerning standards associated with. economic impact (notably property value impact), the braking devices' ability to stop the turbine in high winds, and whether the noise limit was measured to the closest road, or simply to the closest road adjacent to nonparticipating property. The applicant also asked for an exception to the 8' fence requirement around the turbines, and requested approval to build above ground transmission lines instead of buried power lines as required by the or dinance At a Nov. 10, 2016 public hearing, objections to use of the 1-hour L, decibel metric used by the applicant were made by two different noise consultants hired by a property owner. The consultants argued the ordinance required use of an L, standard of 45 decibels (a not to ever exceed standard typically measured over a very short period, such as one second), not an averaged standard over a period of time as asserted by the applicant (and is common in the industry across the U.S.). The planning commission deter mined additional information was needed. The rest of the application review process and two additional public hearings revolved around these issues. Tuscola Wind argued it had already met each of the ordinance requirements and subsequent information it offered was rejected by the township. Much of the dispute centered on interpretation of the ordinance noise standard which got into considerable technical information 18
for the township planning commission, township board and ultimately the court to consider. Tuscola Wind argued against an L,, standard and said: 'that using an L, metric would make development of commercial wind energy in A/flier Township impossible. Indeed, using that metric, a single wind turbine could not be sited within 2.775 feet (over ,!4 mile) from a non-participating property line." In short, it argued that no commercially viable wind turbines could be sited in the township with an L metric. Tuscola Wind also challenged that interpretation as exclusionary. Over the next two, months. the township planning commission determined that the noise standard in the ordinance could only be interpreted as a maximum (not an averaged aver time) standard and that Tuscola Wind did not meet that standard. On January 4, 2017 the township planning commission, and on January IT" the township board denied the special land use permit application. The township hoard cited five reasons for denial associated with failure of Tuscola Wind to conform with ordinance requirements on economic impact, noise, fencing, turbine braking, and buried power lines (as the planning commission had refused to waive that requirement). "Finally, the board noted that it had previously approved a moratorium on wind energy projects in the township and thus was precluded from approving the SLUR application even if it had complied with the zoning ordinance." Tuscola Wind had requested an ordinance interpretation of the noise standard from the ZBA before the township board made its decision, but the ZBA did not act before the township board did, so Tuscola Wind withdrew its application for the interpretation. Tuscola Wind then initiated the lawsuit. Tuscola Wind argued each of the township board's purported reasons for denying the SLUP application were' "contrary to Michigan law and not supported by substantial evidence. Tuscola further argues that the board did not have the authority to enact a moratorium on wind energy projects in the township. For its part, the township argues that Tuscola's appeal is not ripe because the company did not appeal from a final decision of the township. Next, the township argues that each of the board's expressed reasons for denying the SLUR application were reasonable and permitted bylaw. And, finally, the township argues that the temporary moratorium on wind energy project permits was valid." The U.S. District Court reviewed relevant Michigan statutory and case law and determined: • The case was ripe for review because the township board's decision was a final decision since the ordinance did not provide for an appeal of the SLUP decision by the township board to the ZBA as permitted by the Michigan Zoning Enabling Act (MZEA): plus the Court noted it is counterintuitive to do so, since the ZBA is appointed by the township board. • Noncompliance with the noise emission limit was a permissible basis for the township board to oremise its denial of the SLUP application. The standard was clear and unambiguous and the township board interpreted it as written. • Since one reason (failure to comply with the noise standard) cited by the township board had a substantial basis (bullet above), it was unnecessary for the court to consider the other four reasons for denial. The U.S. District Court affirmed the decision of the township board. The second opinion in this case was issued in response to a request for reconsideration by Tuscola Wind. The court said there was substantial evidence in the record of the township board to support their conclusion that the noise standard was not met. The court also rejected allegations that in subsequent negotiations to settle the case the township did not act in good faith, and consequently, that no sanctions against the township were justified.
Tuscola Wind itt in Ellington Township, Tuscola County This case involved a challenge by Tuscola Wind to the decision of the Ellington township board to enact a second moratorium on all wind energy projects by resolution, contrary to established law Planning & Zoning Newsc0/March & April 2020
that requires adoption by means of an ordinance. The township had worked for several years to adopt a new wind energy ordinance with consultant assistance that was far more robust than the one it replaced. A moratorium was put in place at the end of this process to consider some additional changes to noise and setback requirements. The planning commission seriously considered the proposed amendments that an anti-wind group supported, and in the end decided not to adopt any changes. The U.S. District Court provided additional relevant context: "After Tuscola formally proposed the project. and approximately a year after the wind ordinance was amended, 'a group foamed The Ellington-Almer Township Concerned Citizens Group] was formed to oppose the Project and to pressure the Township to enact a much more restrictive wind ordinance.' According to Tuscola, tne anti-wind Group has connections with a larger group, called the Interstate informed Citizens Coalition, that opposes wind as a matter of policy and lobbies against wind energy in Ohio and Michigan. The Group contends in public that it is 'pro-reasonable regulation' of wind energy, but Tuscola believes that the Group is fundamentally opposed to wind energy. Tuscola also believes that the interstate Coalition coaches local anti-wind groups on tactics of intimidation, threats of lawsuits, referenda, and recalls . . . in an effort to prevent the development of wind projects. 'Among other tactics, the local anti-wind Group decided to run some of its members as candidates for the township board. Four members of the Group ran in the 2016 election, and all four were elected. The members of the anti-wind Group have provided contentious and confrontational opposition to prowind advocates in the community. Tuscola alleges that these tactics have included 'threats and intimidation." The tour new members of the township board formed a controlling 4-1 majority. It wasted no time enacting a 12 month moratorium on all wind energy projects precluding the planning commission from considering the SLUP application that was already pending from Tuscola Wind. The new board also replaced two members of the planning commission and the township board liaison to the planning commission. The township argued that adopting an ordinance by resolution was appropriate when the purpose was to pause the issuance of permits. Tuscola Wind argued that only a moratorium adopted by ordinance was lawful under the MZEA. The court reviewed applicable statutes and case law and concluded that the moratorium regulated land use and could not be enacted pursuant to the township boards broad police powers, and that "under Michigan law, an ordinance cannot be suspended by resolution." "Even if the court concluded that the moratorium did not regulate land use and thus could have been adopted pursuant to the boards police powers, the moratorium would still be void. As plaintiffs argue. under Michigan law, an ordinance cannot be suspended by resolution." Many cases are cited by the judge under the doctrine of legislative equivalency [an ordinance can only be amended/suspended by an ordinance; a resolution can be amended/suspended by a resolution; but an ordinance car,not be amended or suspended by a resolution]. The court went on to say: "Because the moratorium is void, defendants cannot use the moratorium as a reason to refuse to consider the SL UP application. In other words, the operative law in Ellington Township is the existing zoning ordinance. Tuscola is entitled to the procedures and consideration guaranteed by the ordinance. As defendants emphasize, however, that zoning ordinance provides no deadlines for the planning commission or township board to review the applicaiion. Accrj,riingly, the appropriate tii'nehine for consideration of the Tuscola SLUP application is uncertain. The due process implications of that issue are not framed by the current motion, and thus are left unresolved."
maining counts: enforcement of the invalidity of the moratorium as it related to the pending SLUP application, the allegation that newly elected members of the township violated the Michigan Open Meetings Act, the allegation that the moratorium violates Tuscola Winds substantive and procedural due process rights, and cross motions for summary judgment and interlocutory appeal. On Oct. 17. 2017 the new township board extended the 12 month moratorium another 6 months. On March 8, 2018, the U.S. District Court invalidated the moratorium. On April 10. 2018, the township board adopted a second set of amendments to the wind energy ordinance. On May 18, the township informed Tuscola Wind that all applications for SLIJF's for wind energy had to comply with the 2018 ordinance and that its' pending application would not be considered under the old ordinance. In response, Tuscola Wind argued that the township had to process me pending SLUP application under the ordinance in effect when the application was submitted The township denied that request. The court denied the motion to enforce the prior order saying: "The general rule in Michigan is that the law to be applied is that which was in effect at the time of decision [by the trial court]. Thus, if a zoning ordinance has been amended [after suit was filed].. . a court will give effect to the amendment[]"' GrandlSakwa of Northfield, LLC v. Northfield Twp., 304 Mich. Asp. 137, 141 (2014) (quoting Klyman v. City of Tray, 40 Mich. App. 273, 277-278 (1972)). The court went on to say: "Tuscola did not file suit until March 31, 2017, months after the amendment process had been initiated by both the passage of the moratorium and by the direction to the planning commission to initiate amendments. Tuscola has identified no evidence which suggests that the board's predominant motivation in enacting the 2018 amendments was to advance the township's litigation position at the expense of the best policy decision for the township. To the contrary, the undisputed record makes clear that the new board members chose to run for office, in large part, because of their belief that the 2015 amendments were inadequate to protect the township." "Because Tuscola had sought only the invalidation of the moratorium and had not challenged the first amended ordinance on its face or as applied, any further relief would have constituted an advisory opinion. Besides the court noted, there
Because the first opinion only dealt with the first count on the validity of the moratorium, the second opinion addressed the re-
Planning & Zoning News©iMarch & April 2020
19
was no 1/memo in the ordinance for the township to act, so it could simply wail until the 2018 amendments were enacted." With regard to the remaining counts, the court said they were moot. A judgment in favor of Tuscola on any of those claims would
change nothing about any parties' legal rights or expectations." "Tuscola has no protected property interest in the" zoning application procedures themselves. See Anderson, 2014 WL 40879137, at 9 (quoting Richardson, 218 F.3d at 518). Given the township's inherent discretion regarding whether to grant or deny a SLOP application. Tuscola cannot reasonably assert a right to its approval." See EJS Properties, LLC, 698 F.3dat 856. The cross motions for summary judgment, and to certify interlocutory appeal, were also denied as moot. Also as to the allegations of Open Meetings Act violations, the Michigan Court of Appeals had resolved that issue in a separate opinion before this case was decided. See summary of that Ellington Township case on page 21.
Heritage Garden Wind Farm in the Garden Peninsula, Delta County The plaintiff's complaint lays out the following background information:
"In 2012, defendant Heritage Sustainable Energy. LLC ('Heritage') began operation of 14 wind turbines on Michigan's Garden Peninsula in Delta County. The Garden Peninsula is home to generations of farmers and is a rural and picturesque community on the shores of Lake Michigan. It is also a we//known migratory bird haven in a crucial migratory pathway. These turbines were constructed and began operation with no environmental impact assessment performed by any federal or state agency, despite known use of the area for nesting, foraging and migration by numerous birds including eagles and protected species. The Garden Peninsula is also known for its extraordinary bat populations. Since 2012, the environmental and human impacts from the towers have become more and more known to residents of the Garden Peninsula, including the plaintiff group and individual plaintiffs in this case. Now, defendant Heritage is planning additional turbines on the Garden Peninsula and just north of the Peninsula, near Cooks, Michigan. Additional turbines will mean additional negative impacts to humans and animals using these areas, including the Endangered Kirtland's warbler. Defendant United States Fish end Wildlife Service (FWS) has made no indication that it intends to properly apply environmental laws to the additional industrial wind development. The group and individuals herein seek compensation for negative impacts to their health and well-being, use and enjoyment of their property and diminution in value of their property due to the turbines. They also seek proper environmental reviews and enforcement of federal and state environmental laws to protect their own interests as well as those of impacted wildlife." Plaintiffs laid out seven counts in their complaint: 1) violations of the National Environmental Policy Act and the Administrative Procedures Act: 2) the federal Endangered Species Act: 3) the federal Bald and Golden Eagle Protection Act; 4) the Michigan Environmental Protection Act (MEPA); 5) private nuisance; 6) public nuisance; and 7 1, negligence. The U.S. District Court dismissed counts 1, 2 and 3 for a variety of different reasons. With regard to the four remaining counts. the court dismissed them without prejudice so that plaintiffs could re-file them in State court. The U.S. District Court said:
'In this case, the issues of State law regarding the operation of wind turbines as they relate to Michigan residents use of adjoining property and the individual health concerns of Michigan citizens that may arise from the operation of wind turbines raise important State interests. 'The interests of justice and comity are best served by deferring to Michigan's courts, which are best equipped to interpret their own State's environmentai
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Iandj nuisance' policies and laws. Zanke-Jodway v. Capital Consultants, Inc.. 1.'08-cv-930, 2010 WL 12136219. 7 (W.D. Mich. 2010)." Note, the author could not find a circuit court opinion involving these parties after dismissal of the case from the U.S. District Court. However, there is a case pending in the Court of Appeals involving some of these parties, but not the four remaining issues. See Delta County case summary on page 22.
Five opinions on wind energy projects by various panels of the Michigan Court of Appeals emerged while researching the cases for this article. Two of them have direct ties to cases reviewed above from the U.S. District Court,
Forest Hill Energy Project in Bengal, Dallas and Essex Townships in Clinton County Plaintiff Forest Hill Energy-Fowler Farms, LLC (Forest Hill) owns and operates wind energy systems in Clinton County and began leasing land from landowners in the county. in April 2010. the county passed a wind energy amendment ordinance to the county's zoning ordinance and Forest Hill applied for a permit under the amended ordinance. The county issued a special land use permit to Forest Hill in January 2013. Prior to the issuance of the permit, but after Forest Hill had submitted an application, defendant Townships of Bengal, Dallas and Essex who were subject to the Clinton County Zoning Ordinance each adopted a separate police power wind energy ordinance that had the effect of prohibiting Forest Hill's proposal due to height, setback. noise and shadow flicker standards. Forest Hill filed a lawsuit claiming that the township police power ordinances prohibited wind turbines in the township and requested that the township ordinances be found invalid and preempted by the county's wind energy zoning ordinance provisions. A trial court granted Forest Hill's motion for summary disposition. The trial court found that the townships ordinances were zoning ordinances and that they were unenforceable because the ordinances were adopted under the iownship Ordinances Act instead of the Michigan Zoning Enabling Act, as ordinances regulating land are required to be. The Court of Appeals agreed with the trial court's finding that the townships' ordinances constituted zoning ordinances and that because the townships' ordinances were not enacted under the Michigan Zoning Enabling Act (MZEA), the county ordinance was controlling. The Court of Appeals affirmed the trial court's ruling.
Lake Winds Project in Mason County The first case involving this project was filed by a citizen's group, CARRE, against Mason County and Consumers Energy, challenging the county ZBA decision that upheld the special use permit approved by the planning commission. Because a lawsuit was possible, early on the county and its consultant went to great lengths to document analysis of the project, and for the planning commission and ZBA to document the reasons for finding that the standards in the ordinance were met. This made it comparatively more straightforward for the circuit court to hold in favor of the county and for the project to proceed. Shortly after Consumers Energy completed construction and began operating the Lake Winds project, there were complaints from nearby residents that resulted in an investigation by Mason County into ordinance conformance. Complaints largely focused on noise, as well as shadow flicker and aesthetic concerns. By the end of 2013, the county began enforcement action against Consumers in circuit court for violation of the ordinance noise standard. The circuit court ruled in favor of the county and Consumers appealed to the Court of Appeals. The leave to appeal
Planning & Zoning NewsOYMarch & April 2020
was granted Feb. 10, 2015. on Dec. 21, 2015 the appeal was voluntarily dismissed by stipulation and no opinion was rendered by the Court of Appeals on claims in the lawsuit. The county and Consumers Energy had reached agreement on a new acoustic testing protocol over a three year period. That period has since passed and in 2019, it was determined that Consumers was operating in complance with the ordinance noise standard except for one site, which was addressed by Consumers by placing two turbines in a noise reduction operating mode. Heritage Sustainable Energy Project
In Schoolcraft County Plaintiffs owned wind energy leases in association with properties in defendant Schooicraft County, for the purposes of erecting wind energy systems (WES) comprised of wind turbine generators to provide electricity to the utility grid. At the time, the Schoolcraft County Zoning Ordinance (SCZO) provided that such facilities were prohibited in all districts except upon approval of a variance from the Board of Zoning Appeals (ZBA, the more common acronym). In 2014, the county amended Section 508(D) of the SCZO to provide that "Utility Grid WESs applications and projects shall require a variance and may be permitted only if all of the following are met. The amended Section 508(0) went on to list 25 site development standards for such projects including that a utility grid WES must be set back at least 3,960' from all lot lines and certain other features. Plaintiffs filed a lawsuit later that year, claiming inverse condemnation. Plaintiffs claimed that the SCZO amendments prohibited them from erecting a WES on their leased properties and deprived them of all economically beneficial use of their property interests - a violation of the Takings Clause of the U.S. Constitution. Defendant Schoolcraft County filed a motion for summary disposition, claiming that plaintiffs' claim was not ripe for adjudication due to the rule of finality. Specifically, plaintiffs did not exhaust their options for approval by first seeking a variance from the ZBA. Plaintiffs moved for summary disposition on the basis that there was no factual dispute that the SCZO amendments amounted to a taking. The trial court granted the county motion for summary disposition. On appeal to the Court of Appeals, plaintiffs claimed that the SCZO amendments prohibited the ZBA from granting a variance, rendering any effort to acquire a WES variance to be futile and thereby doing away with the rule of finality. Plaintiffs claimed that the words "only if" in the amended Section 508(D) tied the hands of the ZBA and prohibited the ZBA from issuing a WES variance. The Court disagreed. 'A/though the SCZO is not as artfully drafted as might be hoped. § 508(D) clearly states that unless the 25 sub factors are all met, no variance can be granted. but § 905 essentially provides an exception to § 508(D) by stating that if a literal enforcement would create unnecessary hardship or practical difficulties, then a variance can be granted under § 905. It is possible for one statute or statutory provision 10 create an exception to the mandatory language used in another... § 905 granted defendant's Board of Zoning Appeals the discretion to grant plaintiff a variance to build its utility grid wind energy systems, even if the 25 specific requirements under the amended § 508(D) were not met.' The Court of Appeals concluded that because a reasonable potential existed for the ZBA to Issue a variance to plaintiffs for a WES application, plaintiffs did not satisfy the rule of finality and their claim was not ripe for adjudication. The Court affirmed the trial court's ruling. [Ed. Note: The case did not address the obvious question as to why the SCZO amendment to permit the WES by conformance with 25 standards was delegated to the ZBA, The Michigan Zoning Enabling Act (MZEA) clearly permits such standards as part of a special land use review and approval process which can be decided by the planning commission or the commission could be charged with providing a recommendation to the county board Planning & Zoning News©/March & April 2020
of commissioners who would make the final administrative decision. AND an appeal could be provided to the ZBA(generally not a good idea viher' the governing body makes the administrative decision - it is fine to structure an appeal to the ZBA if the planning commission makes the administrative decision). However, the option for the original administrative decision to be made by the ZBA is NOT authorized in the MZEA because the ZBA is a quasi-judicial body, not an administrative body.]
Tuscola Wind Ill Project in Ellington Township, Tuscola County Plaintiffs included two former planning commissioners (former PCs) and others to benefit from a proposed wind generation pro 1ect that covered several townships including defendant's township. Plaintiffs opposed the "removal" of the former PCs and appointment of two new planning commissioners (new PCs) by the defendant township board. These actions occurred as a result of the township board's rescheduling their regular board meeting, which would have been on the 2016 General Election day. The meeting was rescheduled for a week earlier. But was done so without posting a notice of the meeting as required by the Open Meetings Act (OMA). At the rescheduled meeting, the board appointed the former PCs, who took their oath of office to begin the first of the year. However, at a later meeting, where a new township board was installed (following the general election), the new board recognized the former meeting and that the appointments were in violation of the OMA. It then scheduled a reenactment of that meeting at their next meeting. At that next meeting the board. instead of appointing the former PC members, appointed the two new PC members. Plaintiffs challenged the legality of this action. Plaintiffs claimed the board was attempting to stop the wind generation project. It argued that the Michigan Planning Enabling Act (MCL 125.3815(9) and the planning commissions bylaws only permitted the removal of its members for misfeasance, malfeasance, or nonfeasance in office, after written charges were made with notice, and the member(s) had an opportunity to be heard: which did not occur. Nor did the board make a determination of whether the public would be impaired because no notice was given for the rescheduled meeting. They further asserted the board's reenactment to cure the OMA violation could only occur after litigation was filed. The defendants argued that the old board did not act properly in appointing the former PCs as the meeting was in violation of the OMA and they had the right to correct the defect. They were not limited to curing only if there was litigation. The trial court found for the plaintiffs The court determined it had no jurisdiction to hear the matter as the case arose more than 60 days after the first (non-noticed) meeting. It also held that since there was no misfeasance, malfeasance, or nonfeasance cited, the new board acted improperly. Defendant's appealed. The Court of Appeals reversed the decision of the trial court. The Court explained that although the board could ratify a decision, it was not required to accept the same decision, only to correct the action of the meeting. If not ratified, then it is not valid and has no effect. The board is free to make any decision in a
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later ('corrected') meeting. Further there is nothing in the OMA that requires filing of a lawsuit to correct any procedural violation on its own although it may be required for other circumstances). To require so, would be a waste of public and judicial resources, The Court concluded that notwithstanding the trial courts jurisdictional position. it erred in not permitting the appointment of the new PC members.
Heritage Garden Wind Farm In Delta County The Heritage Garden Wind Farm was the first in the Upper Peninsula. The first phase had 14-2 MW wind turbines generating 28 MW. This is enough energy to power nearly 7.000 households (1/2 of the households in Delta County). It began operation in 2012. A second project expands the wind farm by 20 more turbines and is expected to be operational in 2020.The original expansion called for 44 new turbines, but public opposition resulted in elimination of some the turbine sites, and moving of others. A lawsuit between Garden Township and Heritage Sustainable Energy. LLC owner of the wind 'arm, was amicably settled in 2016. Heritage argued that the township noise ordinance was unreasonable and would prevent the company from profitably operating their wind farm. A new conflict resolution system was put in place whereby residents effected by wind turbine noise could call a designated phone number at Heritage. A representative of Heritage would meet at the caller's location within six days to investigate and if necessary, to take action. The township could take action if a satisfactory result was not achieved. The settlement also included a requirement for Heritage to provide reporting on the noise complaints they receive with site specific information cn wind speed, wind direction, and noise level in decibels. The township also agreed to change an ordinance reference from' nuisance noise" to "excessive noise. This Court of Appeals case occurred after the 2017 U.S. District Court case on the Heritage Garden Wind Farm (summarized above). It does g.oJ address the four counts left unaddressed by the U.S. District Court in that decision, but instead is a suit that seeks a remedy for alleged damages incurred by 20 property owners who live near the expanded wind farm. Plaintiffs lost their case in circuit court because the judge ruled they were not "aggrieved parties" and hence could not appeal to the court for assistance. Plaintiffs appealed to the Court of Appeals. Both plaintiffs and defendants agree that the Michigan Zoning Enabling Act (MZEA) fails to provide a circuit court appeal of a decision by a planning commission on a special use permit In contrast, the MZEA clearly provides for appeal of ZBA decisions by aggrieved parties to circuit court. Plaintiff's attorney argues that the Michigan Constitution permits appeals of administrative decisions under Article 6 Section 28. and that no special damages must be shown; although plaintiffs did claim specific damages that were unique to them, and not to property owners farther away from the wind farm. Most of these alleged damages related to diminished property values, wind turbine noise, loss of oleasant use of their property. diminished aesthetics, avian and bat deaths, shadow flicker and other complaints that are commonly expressed by those living near wind farms. The county argued three prior Michigan Court of Appeals decisions "filled in the blanks" from the MZEA omission on appeal of planning commission decisions, and effectively permitted appeal of administrative decisions to circuit court, but that plaintiffs had to meet the aggrieved party standard applicable to ZBA appeals. Plaintiffs argued none of the cases cited by the county applied to their appeal, nor did any requirement to show special damages. At the end of oral argument. the Court of Appeals was interested to hear that 18 of the 20 plaintiffs had reached agreement on an out-of-court settlement with Heritage Garden Wind Farm. The Court also noted that as long as there were any plaintiffs that had not settled. the case was still viable. According to records of the Court of Appeals, no further action has been taken on the case since October 2, 2019
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Dut-of-Cci Several out-of-court settlements were mentioned as a part of the descriptions of the cases summarized above. Plus, in the process of identifying and researching these cases, a number of additional out-of-court settlements between wind energy companies and nearby landowners were also identified (listed in sidebar on page 17). That means that both the complaining landowners and the wind energy company were sufficiently satisfied with negotiations to enter into a written settlement agreement. These settlements were indiviCual to each of the plaintiffs and the respective wind energy company, and were also private with restrictions that prohibit the individual landowners or the energy company from discussing me terms of the settlements. The settlements also typically provide that the parties relinquish their rights to pursue judicial remedies. The fact tha: these settlements have occurred as a pert of the projects described in the court opinions above, as well as by means of separate litigation (and there are probably more), and that so many involve landowners near wind turbines that were "nonparticipating" in the original planning project, suggests that wind energy companies can do a better job on the front end of identifying potentially impacted landowners and not simply trying but successfully entering into an agreement to share revenues or mitigate fmpacts with those landowners before project approval The after-the-fact costs of these settlement agreements must be horrendous for all parties. They certainly take a lot of time for the local unit of government, the wind energy company. and the complaining landowners.
Following are observations that can be drawn from these ten court opinions and from material in the accompanying feature article. These observations were made by the author within the context of thousands of other land use court cases he has reed and edited for inclusion in PZN over the last 38 years. A review of more than ten wind energy court opinions may result in an even longer list of observations. Nevertheless, these observations provide insights into ways that local governments and wind energy companies can exercise their responsibilities differently in the future to avoid the negative elements of the observations that follow. 1. Many proposed wind farms generate controversy and the amount of controversy is in part related to the scale of the project and the large physical size of the wind towers, turbines and blades. This part of the controversy is often related to the social acceptability of the project (see some of the wind energy resources on the backcover). This is because commercial wind turbines significantly change the landscape once they are erected to trie delight or chagrin of those that see them. Those who own the land on which the turbines are sited, are generaliy happy because they receive some form of compensation from the wind energy company. Those who are unhappy may feel that way because they are outside the project boundaries but feel impacted and thus feel they are being unfairly treated because they are not compensated. Others outside project boundaries may have a predisposition or revulsion against wind turbines as a land use nearly anywhere they are located. These "anti-wind" opinions are sometimes fueled by organzations from far away as mentioned in the Tuscola Wind Ill project cases. 2. Where there is controversy, for the most part, the same complaints are raised: diminished property values diminished use and enjoyment of residences because of turbine noise, claims of negative health impacts, shadow flicker annoyance and stress, an impacted rural character or sense of place, and increased morbidity of birds and bats. 3. Where there is controversy, the loudest voices in opposition seem to be coming from people who live in residences inside the boundaries of the wind park or outside the boundaries but near to them, and who were not parties to the leases, conPlanning & Zoning Newsc.YMarch & April 2020
tracts or payments set up by the wind farm operator. Some refer to them as nonparticipating landowners" in the original project design. That does not mean they were ignored by the wind energy company, they may simply have been unable to reach agreement over compensation or mitigation with the wind energy company. 4. Where there is controversy, there is often considerable time and expense in litigation for the municipality and for the wind energy developer before or after approval. This litigation di minishes the benefits of the wind energy project and raises the direct and indirect costs of the project to the muncipality and the wind energy company in unpredictable ways. 5. By failing to adequately address the complaints of wind er.ergy project opponents within and adjacent to the wind energy project boundaries (i.e. nonparticipating landowners), the project developers become subject to the old adage that you can pay now or pay later and generally not paying on the front end means you pay much more on the back end (although the author does not know for sure that is true as the settlement agreements are private). Apparently in at least some cases, paying on the back end is a risk wind developers are willing to take, despite the additional costs that the municipality and objecting landowners may incur. 6. Litigation is ether of the "kitchen sink variety" (throw in many claims not knowing which will be successful) or very narrow (like challenging legal standing of plaintiffs, or an open meetings act violation This is likely because the industry is still young and there are not yet predictable outcomes to litigation for either side. 7. Litigation occurs in both the federal and state court systems as plaintiffs seek advantages they believe exist in one of the systems over the other. From review of these cases it is not apparent there are strategic advantages in one system over the other, but as the federal judges acknowledge, state judges are more familiar with the applicable statutory and case law of the individual states. Over time, cases heard in the state court system are most likely to create a common body of law in this topic area. 8. Some litigation is initiated at least in part, if not primarily, in order to get parties to the table to negotiate an acceptable solution, because other less dramatic efforts were unsuccessful. 9. Wind companies are willing to reach settlements with private parties after the fact, as a result of litigat i on and this begs the question as to whether being more inclusive in sharing benefits on the front end would have saved time and money on the back end. 10. There has been little direct challenge to the reasonableness of (especially) restrictive local wind turbine zoning standards (like a 45 dBL,rr~lstandard, as opposed to an averaged L Q standard), but once facial challenges to standards start, especially if made in the context of standards being unreasonably restrictive in order to be exclusionary, communities are not likely to be able to defend their ordinances in the courts. These cases will increasingly include inverse condemnation and takings claims as well. If enough communities fail to stoo intentionally being exclusionary, the legislature may start to pay attention, and it could take away local ab i lity to set the wind turbine standards, as has occurred in other states. This is usually done by some form of preemption and the establishment of a single stateviice standard. 11. There is disagreement over what an optimum, cefensible decibel level for a wind standard is and how to fairly and uniformly measure it, and whether "one size fits all situations makes any sense in this arena. In contrast, there is not a lot of disagreement on the basic parameters for a reasonable noise standard although as science improves, those parameters may change over time. At the same time ills apparent that to a great extent, separation distance between residences and a wind turbine can be just as effective as a decibel standard to minimize negative impacts with very few subsequent enforcement issues. Communities are likely -
Planning & Zoning News©/March & April 2020
I o gravitate to greater reliance on separation distances over time, but the distance must be reasonable and effectively achieve the same level of mitigation as a decibel level. Some communities are already using two separation distances: a shorter one, such as 1000 1200 feet between a participatng residence and a turbine within project boundaries and a greater one, of say 1320 feet. between a turbine and a nonparticipating landowner inside the project boundaries, or from a residence outside the project boundaries. Over time perhaps, conimunities could allow wind developers to choose whether to be locked into a reasonable averaged decibel standard, or a fixed separation distance between residences and wind turbines if the same protective effect can be achieved. More research into setbacks relative to noise standards would be helpful. 12. Science is not yet completely in agreement on the full scope or degree of negative health impacts on humans from wind energy generation, as there is some evidence of some negative health impacts for some people, especially as relates to stress from annoyance and the strobe effect on persons that are prone to certain seizures. Several well conducted studies show no direct negative health impacts from noise or irfrasound from the wind turbines or blades themselves. Some research attributes health symptoms from wind turbines to the 'nocebo" hypothesis where the expectation of negative health effects influences the symptoms identified by those who claim to be harmed. But as a practical matter, the cer tainty or uncertainty of health research findings in this area is less important than the sometimes widespread percept i on of health, annoyance, or stress effects, and of general wind turbine nuisance noise. There is remarkable overlap (if not actual agreement) among those who claim negative nuisance, health or annoyance impacts and their proximity to wind turbines. Thus this perception cannot be ignored by wind developers or municipal policy makers For the general public, perception is often reality. 11 Every residence within a reasonable distance of a wind turbine should get compensated in some way by agreements reached on the front end of project planning. Local regulators and wind energy project developers probably both have an unrealistic view of likely project review and approval time, as well as of enforcement risks at the front end of a project proposal. Controversy may be quick, or it may take time to develop. As a result, wind developers may undervalue equal treatment and equity considerations on the front end when working with property owners within and near a project boundary. setting themselves up for unnecessary conflict and uncertainty that ultimately results in significant additional direct costs, project delay costs, and enforcement costs that could have been avoided. A broader view of impacted parties and what it would take to minimize controversy by including everyone in front-end agreements could result in less controversy, lower overall costs, and more satisfaction on the part of all affected parties, including the municipality and the wind project developer. The Gratiot County sidebar on page 11 demonstrates this is possible. There are multiple ways (politically or by regulatory means) communities could effectively require wind developers to show that they have done everything prudent to prevent these anticipatable problems as a part of their applicat i ons or before final approval to a wind project is granted. [There may even be ways to incent such behavior in the ordinance more creative thinking is required here.] Some non-participants may always be holdouts. even if the wind energy company offered to buy their property, so local approval cannot be conditioned on agreement by all property owners within the project area. But if project benefits are not spread widely enough (in some cases to everyone within the entire township), then unnecessary controversy, if not conflict and then additional costs may arise 14. Some opponents to wind energy Will not be appeased by any local policy that does not effectively exclude wind turbines. -
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White local policy that excludes a lawuI land use is illegal, it is sometimes difficult to orove in court. But such conflict is largely avoidable if all rural communities took active measures to plan and zone for some form of energy production that met all the needs of the people and businesses in their community. In this age of rapid climate change, it is not legitimate for local policy to exclude one form of alternative energy without the community affirmatively allowing another form, or at least meaningfully contributing in some other way to the provision of energy that does not further degrade the earth's atmosphere. Every community must do its part or we will not reverse global warming. 15. Low population rural townships face a huge problem with conflicts of interest (Cot) when it comes to making zoning decisions on siting wind energy projects. Some of the townships involved in wind energy projects have fewer than 1,000 residents. Even those with 3-4,000 residents are unlikely to have elected township trustees, appointed planning commissioners and ZBAs that do not have members who do not have a lease agreement, or other form of compensation or mitigation agreement with a oroposed wind energy company. Under existing common law, and often under statutory or local ordinances, that means those persons with a COI would have to declare a COI and request to be excused from participating in the public consideration and vote on a wind energy proposal in their township. With a large number of CCI persons on such boards and commissions, quorums would be impossible. There may not be enough persons without a COI to legally vote on a matter. Or the reduced number of decision makers may make consensus impossible and lead to tie votes. Either situation makes it very difficult to proceed and fuels distrust among voters in general. If decisions were made by elected or appointed officials with COI, then the legal validity of those decisions could be challenged and the decision overturned by a court. These are reasons why joint planning and zoning among several adjoining townships. or by a county for all or a large number of the townships in the county is often more likely to be fairer and more transparent, and less likely to be subject to allegations of COI or at risk of court invalidation on these grounds. 16. Solutions to problems facing wind energy siting will necessarily involve changes in planning and zoning by local governments, in how wind developers secure leases and win property owner support while designing a wind energy project. This will require using strategies that fully engage the whole community in understanding and ultimately supporting a wind energy project. Whether we like it or not, we are all in the same boat when it comes to our energy future and we can all chose to row in the same direction toward a more sustainable future, or we can all fight among ourselves for control of the ship knowing that the likely outcome is either no progress, or total failure. A climate that warms much more will be so cestructive of our collective future options that we will look back in disgust at communities that erected artificial barriers to alternative energy projects. Our children will pay a much higher price than simply moral indignation however, and that is why we must do a better job of finding common ground in siting alternative energy projects that take advantage of available natural resources, like wind and sunshine. 17. The cases reviewed above show no respect for the fact that provision of energy to meet public electricity needs using a common resource (e.g. wind, sunlight, river water, geothermal, or waves) bestows an oblication on municipalities, on energy companies (whether private, public or quasi-public), as well as on individual citizens and property owners to behave in a manner that fully respects broader public interests. In the end, society needs electricity to function, and continued efforts that only focus on stopping wind power, or attempting to ram an energy project down people's throats, or ignoring real nuisance impacts will only ensure that the broader public need is never adequately met. Energy facili-
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ties need to be sited somewhere, and great care needs to be exercised when s;ting them, but every community cannot say "no. "Every community must accept a fair share of the overall responsibility for energy production and for energy conservation. We all need to accept this responsibility going forward and use improved methods to get there.
Simply reacting to a new land use that has potential negative impacts and is therefore controversial has never worked well, no matter 'what the land use or where it is locatec. But wind energy projects are no longer "new" land uses. Municipalities in many wind resource rich places have simply been slow to prepare for them That is shortsighted and inappropriate municipal behavior in light of the number of completed wind energy projects, the pubtic benefits of alternative energy, and the growing Threat of climate change that is fueled in part by burning of fossil fuels in conventional power plants. Municipalities must be proactive, inclusve, seek broad public participation and be fair in how they plan and zone for wind and solar energy projects. Such projects can be sited in large parts of Michigan, but if your community is in a windy area and wind energy is commercially viable (including access to the electrical gild), it is irresponsible to not proactively plan for potential wind energy.
If a community goes through a thorough and inclusive public planfling process to consider wind energy and concludes it is no' what the community wants, then the community has an obligation to provide for solar energy (or hydroelectric, or geothermal or waste to energy, or other alternative energy) unless it is not viable there. Why an obligation? We all use electricity Cost effective power generation is no longer limited to large-scale fossil fuel based locations. As those plants are retired, rural communities will need to pick up more of the power generation burden—not only for their community, but for urban communities miles away. This transition will take decades, but communities must start making the transition now, and not wait until a wind or solar energy company comes knocking at the door. Because wind and solar power offer significant opportunities for farmers to secure supplementary income from their land, there is serious tnequity created when one township embraces wind energy and an adjacent one also in an area with good wind resources rejects it, but does nothing else to address the inequity. Most rural communities embrace their farm heritage and agricultural economy. Yet every year there are fewer farms and farmers, and at some point that becomes a local (and increasingly a state and national) food security issue. Farmland acreage far outnumbers rionfarm acreage in many rural parts of Michigan. But nonfarmers increasingly outnumber farmers in terms of total numbers of people in a community and sometimes make decisions in their own best interest that undermine the integrity of local farming, and the broader public interest Overtime, such decisions may undermine the long-term integrity of agriculture in the area. This is often contrary to the stated goal in many rural master plans - maintaining or protecting farmland for tong-term farming. In rural townships where the public does not want winc (or solar) energy projects, it is essential that the community must be honest about that AND immediately provide for other alternative energy. OR find ways to compensate the farmers on wind resource rich land for the lost economic value that farmers in the neighboring townships are able to enjoy. Failure to do so will, over time, make the farmers not enjoying those benefits less able to compete with farmers in the next community that receive wind farm revenue, and their farmland will be lost to other land uses. There is plenty of land available for nonfarm residences. but no excess of arable land, so converting quality farmland to nonfarm use makes no sense relative to the broader public interest. Policies that make t easier for farmers to farm, and do not cost the public money (like utility-scale windfarrns) make sense in areas with rich farmland soils and good wind resources. Planning & Zoning Nev,s©/March & April 2020
Farmland is saved and wind resources are tapped. There are multiple ways to accomplish what some describe as competing goals, while still ensuring fair treatment of farmers and non-farmers alike. For example, a community could create a community power company (solar or other alternative energy) and share the costs and benefits with everyone in the whole community. A community could develop a purchase of development rights (PDR) program that pays farmers for the value of their land for wind energy production; the farmers would still own the land but no wind towers could be erected there. A community could develop a transfer of development rights (TDR) program where farmers with good wind resources in one part of a township coud sell their wind energy potential for transfer to a different part of the township where the public wants wind energy projects to occur and more wind turbines could be erected. There are certainly other creative ideas that could be explored, but the broader public interest demands we stop allowing opponents of wind energy from escaping their public interest obligation to offer an alternative energy source or payment scheme to those who would legitimately lose a commercial opportunity that may help them continue farming thereby achieving a broader public farmland protection goal (and increased food security). This obligation does not exist for most land uses, but it does with energy because of its role as a necessary public good. For communities that decide to fully embrace wind energy, and triose that only choose to partially embrace it, it is critical that adopted standards are reasonable. Sometimes well-intentioned communities inadvertently adopt standards that are not commercially viable, like a height standard that leaves turbines below the wind resource. Standards that are significantly more restrictive than a widely accepted noise standard would be another example of an unreasonable standard. it may not be apparent to a community when it is adopting unreasonable standards. so it is important to check with various experts as to the reasonableness of a particular standard, at that point in time. Protection of residences from noise that is too loud, and other nuisance impacts in and near wind turbines is critical, but if ordinance standards are excessive and make a project unviable, then the community will not achieve its sustainability goals or fairly treat all its residents. This is why agreements between wind energy companies and farmers, as well as with others within the immediate area, are a critical component of the balancing act. Reasonable and fair standards will make this process easier and more likely to be successful. If a community adopts a master plan embracing wind energy and then adopts standards that effectively exclude a lawful land use they should expect to be sued, and overtime, they should expect to lose those lawsuits. The few cases in Michigan in which a facial challenge has been made to unreasonable local standards, and in which a frontal exclusionary zoning challenge has been raised were uninspired attempts. I predict it will not be long until a more skillful legal challenge is raised, and until it will be successful. If that challenge includes a well-crafted inverse condemnation or takings claim, the potential exists for some unwitting community to lose the lawsuit and have to accept the project with little control over it, or to have to pay legal fees, or worse, damages to a wind developer because of municipal premeditated efforts to exclude a lawful land use whether or not it is in the context of a demonstrated need. It is probably more likely for a community that adopts exclusionary standards to face (and possibly lose) a camages claim to farmers within the boundaries of a failed wind energy project who file a civil suit against the community for their lost potential revenues. While both of these types of cases are a stretch to win at the present time, both scenarios are more Iikey to occur in the future if communities adopt exclusionary practices. Michigan courts take substantiated claims of exclusionary zoning seriously and have sometimes been very hard on municipalities that conspire to stop a project. Millions of dollars in damages are possible, and would likely exceed typical municipal liability insurance coverage. At the same time, wind energy companies have to also step up to the plate and do a better job planning, siting, and entering
Planning & Zoning NewsMarch & April 2020
into agreements with landowners impacted by their wind energy project. Some wind energy companies are already doing so. For example, it is critically important that jj those impacted by a wind energy project within a project boundary or who live nearby rnt share in the benefltslmitigation measures up front - if at all possible. That means everyone (whether you are a farmer with 200 acres, or a nonfarm resident on a two acre parcel) must receive payments or leases up front, or some acceptable form of mitigation - including, in some cases. buying them out. To ensure this happens, communities must incorporate ways into the project submittal, review and approval process to require a wind project developer to demonstrate that everyone directly impactee to a certain distance from wind turbines will have expected impacts mitigated, or are included in payments or leases, or are bought out, on the front end of the project. Similarly, any nonparticipating landowners clearly negatively impacted in ways proactively addressed with participating landowners, but missed during the olanning phase must, after project approval and &clear demonstration of negative project impact, be promptly mitigated. or compensated, depending on the circumstances. This is necessary for the wind energy company to retain its honor, and the respect of not only that community, but every community it wants to work in thereafter. It may even be necessary for a project director, or the community if it is a community energy project, to create a fund to buy nonparticipating landowners out, and certainly to negotiate a first right of refusal with any participating landowner within proeut boundaries that subsequently decides to sell their property. While these ideas may seem far out, or even radical to some. they are reasonable responses to the circumstances demonstrated in just the ten court opinions summarized above. They are also supported by the practices of some wind energy companies today. At least one law review article [Jake Hays, Feeling the Noise: Proposed Standards and Alternatives to Wind Energy Nuisance Litigation. Fordham Environmental Law Review, Vol 28, No 2, Spring 2017, as well as community surveys and other articles in the planning field provide support for greater equity in siting. Good planning includes municipal obligations to treat all landowners and businesses fairly (it is not fair, or lawful, to use excessive standards to exclude an otherwise lawful land use). If municipalities and wind energy companies each moved quickly in the direction indicated above, there would be significantly more community support (as in the Gratiot County example on page 11) for wind energy projects, and far less public opposition. This is because the benefits are clearer and more broadly shared. The public benefits of wind energy would not be clouded by antt-wind sentiment. When everyone impacted is fairly compensated, or negative impacts are reasonably mitigated, not only is everyone being reasonably treated, everyone is happier. There will be less costly lawsuits, less time lost in Court, less tarnish to wind energy company reputations, and fewer ailments experienced by those impacted. There will also be less time for a larger number of people to develop ill feelings against the whole wind energy industry.
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It would be great if the science on appropriate wind turbine noise standards and setbacks. as well as on all the claimed health impacts of wind turbines was more advanced. But it is not, and is unlikely to get there fast enough to create optimum ordinance standards and oroader public policy. However, that is not enough reason to stop wind energy projects or slow them down, but it is enough reason to change municipal and wind energy company behaviors to do things differently - as described above. Perception is often more important than science in driving personal and public opinion. Changing the way a municipality and wind energy company treats peOple up front, and then consistently thereafter, is the only way to change perception and to prevent it from becoming "anti" in the first place. In summary, an alternative proactive approach to local planning and zoning for wind energy (arid potentially all other forms of alternative energy) includes the following elements. 1. Every rural community broadly involves the public in the preparation of the local master plan. That requires the community offer significant education to the public on various topics, including alternative energy, before meaningful public input. One section of the master plan addresses the types of energy production the community wants to allow and where. This is done in the context of planning for enough energy production to meet more, if not all of the community's own energy needs and where feasible to meet broader energy needs, including those of urban communities that have no viable way to meet all of their needs tall of this should be done within the context of more cohesive state energy policy where every community has an obligation and a way to contribute to meeting statewide energy needs). Wind, solar, hydro, thermal, waste to energy, or other alternative energy means should be the focus, except where a community already produces natural gas powered energy (or is adequately served by a company that expects to do so for at least the next twenty years). because the latter contributes to climate change and the former does not directly do so. If the community chose not to allow wind or solar energy and it was in a rural area with good wind and/or solar potential, the community would include in its plan the means for equitably compensating farmers for the lost energy producing potential of their land by POR, TDR, or some other means This plan element could be in the context of a master plan that fits into a local or regional sustairiability plan. 2. Local zoning would reflect community desires laid out in the master plan with reasonable provisions for the types of alternative energy sources the community wishes to promote. 3. Zoning standards would require energy project developers to delineate a project area that had a buffer area around it that ensured a reasonable level of impact protection, mitigation or compensation for every existing residence. In addition, there would be a new ordinance provision that permitted no new residences to be built within that project boundary or buffer area except by means of a waiver or variance that ensured the future homeowners fully understood the implications of their decision and that they were not entitled to future compensation or mitigation by the wind energy company. The respective wind energy company would be involved in the review of such proposals and waiver requests. Any decision by the municipality to allow a waiver on the affected property would be filed in the county register of deeds office so future purchasers understood these limitations on their property. 4. Zoning standards would be developed that could give the wind developer the choice of conforming with a reasonable averaged noise decibel level standard (based on widely accepted available scientific evidence) and the uncertainty associated with subsequent enforcement measures: OR a fixed minimum separation distance between residences and wind turbines that was potentially greater than most common sep-
26
aration distances (such as 1200 for participating landowners or 1320 feet for nonparticipating landowners), but still within the parameters for a commercially viable project. These distances could be subject to modest variation based on preestablished parameters such as unusual topography or vegetation, prevailing winds etc., with the amount of variation to be permitted established in the ordinance. 5. Zoning standards would be created that require the wind developer to establish up front how the project contributed to advancing or achieving the energy goals set forth in the community master plan (which ideally should be part of a larger regional or statewide policy), and did not unreasonably undermine the quality of life of people living in residences within or adjacent to the boundaries of the project. The developer would be required to demonstrate how all the landowners within a project area would individually benefit from the project by means of leases, contracts, fees. outright land purchase or specific mitigation measure.9 agreed to by the landowners, such as reduced operation of certain wind towers at certain times. Evidence that all the landowners within the project area were in agreement with such measures would be required to be submitted, although the actual individual landowner agreements themselves would not be required. If all the landowners were not in agreement, the wind energy developer would have to identify the number of properties affected and lay out its mechanism for addressing future complaints from such landowners in the event the project was approved. 6. The wind energy developer would be required to commit to a plan that affirmatively and quickly addressed negative impacts of their operation on nonparticipating property owners inside the project boundaries as well as outside the boundary of the project and within the buffer area that had not been anticipated when the project was proposed. This 'plan" may or may not be a dispute resolution process (because they sometimes involve foot dragging and do not proceed fast enough). The wind energy developer would be required to promptly report to the municipality the measures it took to address the problem and the degree to which they satisfactorily resolved the complaints. 7. The community and the wind energy company would agree to periodic review of ordinance requirements and mitigation measures to ensure that mutually agreeable refinements to procedures and outcomes on both sides were made as needed. 8. Every five years the community would conduct the statutorily required review of its master plan and would make appropriate revisions to the energy section based on what it had learned over the last five years. That update would occur only alter meaningful opportunities for public and wind energy company input. Farmland protection and alternative energy production are necessary for a long-term sustainable future in Michigan. It is hoped that the observations and alternative planning and zoning elements outlined above will stimulate further creative thinking on how to better achieve those goals with fewer negative impacts than the present planning and zoning processes do. The observations and alternatives proposed above are unlikely to satisfy all municipalities, wind energy developers, nearby landowners or anti-wind advocates. However, they are intended to address all the existing major problems in ways that fairly balance the affected interests while ensuring that both broad and narrow public and private interests are reasonably considered. Refinements to the observations and elements proposed above are welcome, as are any alternative proposals that do at least as good a job at balancing all the broad public, municipal, wind energy developer and private citizen interests addressed in this article. U
Planning & Zoning NewsVMarch & April 2020
MSU EXTENSION UPDATING SAMPLE ZONING FOR WIND ENERGY SYSTEMS By Brad Neumann, Sr. Extension Educator and Mary Reilly. Extension Educator Michigan State University
T
he Michigan State University (MSU) Extension Land Use Series 'Sample Zoning for Wind Energy Systems" is currently being updated and a new version will soon be available online at: ,Q rL. This resource for Michigan local governments is a sample zoning ordinance amendment for utility-scale wind energy systems and smaller, on-site wind electric generation systems for individual businesses or homes. It is not original research or a study proposing new findings or conclusions. The latest version replaces previous versions of the document, which should no longer be used or referenced. The resource is written primarily for rural jurisdictions, though urban jurisdictions will find the sample standards for on-site wind energy generation systems instructive. The updated version adds more background information on sound descriptors and sound measurement methodology to the document. Certain aspects of wind energy regulation, such as sound, introduce highly technical regulatory language that is quite complex to many local government officials. The new version will also include more commentary providing background and explaining different approaches to wind energy regulation. Other substantial updates to the document include: • New case law references: • New research citations on public engagement and community outreachleducation: • New content on Aircraft Detection Lighting Systems (ADLS): • Additional considerations for shadow flicker; • Replacing language about a lease unit boundary with sample standards for participating and nonparticipating parcels; and other minor updates. Michigan local governments now have 12+ years of experience with utility-scale wind energy development, plus evolving published peer-reviewed research at the state, national, and international levels, all of which have informed the latest MSU Extension sample zoning. It was April 2008 when the Michigan Department of Labor & Economic Growth first released a set of guidelines for local government zoning standards related to wind energy development. The guidelines were written to assist local governments in preparing siting requirements for wind energy systems and were developed with input from members of the state's first Wind Working Group. The year 2008 was early for wind energy development in Michigan and was the same year Michigan lawmakers adopted the states first renewable portfolio standard (RPS) with the passage of the Clean and Renewable Energy and Energy Waste Reduction Act, PA 295 of 2008. Michigan's first RPS required utilities to produce 10 percent of energy from renewable sources by 2015.
About the Authors rad Neumann, AIC?, is an MSU Senior Extension Educator who serves as an educational resource for local and tribal governments across Michigan's Upper Peninsula in the areas of land use planning and zoning. community and economic development and general governance topics. Brad has studied renewable energy siting and delivered training for Michigan local governments on the topic since 2008. ary Reilly, AICP. is an MSU Extension Educator that serves local government and communities i n northern lower Michigan. She specializes in zoning, land use planning, and community development. Mary has been engaged with various aspects of wind energy since 2004 and has 10 years of direct experience addressing planning, development public process. and enforcement for a wind energy system in Mason County.
B
M
In 2008, wind energy generation in Michigan produced 141,000 megawatthours of electricity, climbing to 4,696000 MWh in 2016 - an increase of several thousand percent that led the way to satisfying the RPS of several electric utilities.' With the growth of the industry and the varied experiences of Michigan local governments in regulating and siting wind energy development, MSU Extension rewrote the State of Michigan guidelines with new sample provisions releasing its "Sample Zoning for Wind Energy Systems" in 2016 and publishing an update In 2017. During that timeframe, the state's RFS was also amended (by PA 342 of 2016) to mandate that utilities product 15 percent of energy from renewable sources by 2021 and establish the goal of 35 percent of energy coming from renewable sources and energy conservation by 2025. Yet, in Michigan. there is no state government authority, role, or modern guidance for siting or regulating wind energy facilities. Several Midwestern state governments, including Iowa, Minnesota, Wisconsin, and Ohio influence the siting of new utility-scale wind energy, either through shared authority with local governments or outright preemption.-' In Michigan, local units of government regulate the siting of wind energy systems through the zoning ordinance, if a local or county zoning ordinance is adopted. The State's role in energy siting is carried out by the Michigan Public Service Commission in reviewing and approving integrated resource plans and certificate of necessity requests for utilityconstructed electric generation resources, among other roles. The MSU Extension "Sample Zoning for Wind Energy Systems" is intended to assist Michigan local governments when making public policy decisions related to wind energy development. The sample zoning is written with the intention of striking a balance between the need for clean, renewable energy and the necessity to protect public health, safety, and welfare. It underscores the need for due process and reasonable regulations based on a plan, with sample provisions and commentaries that offer policy and process considerations for wind energy regulation. The work draws from published peer-reviewed research, plus the experiences of Michigan local governments with wind energy siting, regulation. and development to date. The updated resource includes references to wind energy regulations and research from Michigan, other states, Canada, and Europe. While some communities will choose to mooel zoning on similarly situated communities in Michigan. it is a benefit to consider recent research, experiences, standards and regulations in the broadest context. Further, Michigan's land use patterns, aver age parcel sizes, and dwelling densities, vary from community to community. Research findings and sample approaches from other countries and states may not be appropriate to Michigan's settlement pattern - that of one-mile-square sections and cor responding grid-like road networks, power lines, and parcel divisions For these reasons, the sample wind energy zoning provisions are presented as information to begin a community conversation on the development of wind energy zoning or zoning amendments. The resource is not prescriptive in setting particular setback or sound regulations. This is intentional, recognizing that local communities are responsible for establishing policy to support zoning in Michigan. The resource helps to explain the "why" and the "how" for varied approaches by other Michigan communities or states, including the research related to such approaches. New research, new statutory and case law, and technological advances of wind energy systems invite revisions to the MSU Extension sample zoning. Huron County, for example, is beginning to contemplate how to address the conversion of wind en(continued on Backcover
Planning & Zoning News@iMarch & April 2020
27
PLANNING & ZONING NEWS" Mark A. Wyckoff, FAICP, Editor 715 N. Cedar Street, Suite 2 Lansing Ml 48906-5275
PH (517) 886-0555 www, pznews . net
FIRST CLASS MAIL
(continued from page 27) ergy generators and towers that will one day need to be replaced by more current technology As the center for early wind energy development in the state, Huron County will likely lead the way among Michigan communities in developing plans and ordinance standards to address retrofitting, rebuilding, or otherwise modifying existing wind energy systems. The sample zoning provisions will indeed be updated again as Michigan's energy future unfolds and communities are faced with the need to adapt local public policies to the current technology, desires of community members, and the legal framework of the state. Find the new-
est version of MSU Extensions "Sample Zoning for Wind Energy Systems" online soon at: httosilwww.cpnr.msu.edu/planning/
MSU Extension helps people improve their lives by bringing the vast knowledge resources of MSU directly to individuals, communities and businesses. E ND NOT ES 1 "Nind Energy in Michigan"WlNDExchange. Office of Energy Efficiency & Renewable Energy, Wind Energy Technologies Office, U.S. Department of Energy. httos:flwindexcflanae.enerov.00v/stateslrrii 2 "State Legislative Approaches to Wind Energy Facility Siting. "Jesse Heibel and Jocelyn Di.rkay. November 1, 2016. National Conference of State Legislatures. htts.//www, ncsl.ora/research/enecuv/statewind-enorgy-silnoesox J
zoning ordinance resources.
WIND
&
SOLAR ENERGY RESOURCES
Resources on Wind Energy •
•
•
-
Sample Zoning for Wind Energy Systems, Michigan State Urnversity Extension, November 2017, /iwww.caorrnsg.eW resources'samole zoning for viind_eniergy systems 2017 Lessons Learned: Community Engagement for Wind Energy Development in Mchigari, Wind Energy Stakeholder Committee (WESC), January 2018 U.S. Department of Energy. Office of Energy Efficiency & Renewable Energy. Frequently Asked Questions about Wind Energy, https;!/www.enerpv gov/eere/windfrppent!y-a,d gLiestons-about-wind-eneray. Environmental Law Institute. (2013). Siting Wind Energy Facillties - What Dc Local Elected Officials Need to Know? Qjj www.eli orafsites/dp.fult/fiIes/eii-nnuhs/n123-O3.cdf. Health, siting impacts, and community acceptance research httos:/!emp.lbLaov/projects/communtv-imoacts-and-publicacceptance httos;//emo. lbi.gov/pubiicatioris/thirty-years-nof,jjj american-wind ht1o:/idci.omcl10.2Li696D70
Resources on Solar Energy • Grow Solar Toolkit, Great Plains Institute, httos;!Iwww.cictteren • • •
•
Integrating Solar Energy into Local Plans, American Planning Association, Solar Briefing Paper 3. American Planning Association. KnowleogeBase Collection Solar Energy. httos:lIoIanning.ora/knowledgebaselsolar/. SolSmart. Solar Energy; SolSmarts Toolkit for Local Governments. httns:i/nLsmart prolsplpr-eperc.y-n-ronlkjf-fnr-Iocni-npverrtments/otanning-zoning -development! Michigan Energy Office. (2013). Becoming a Solar-Ready Cornmunity: A Guide for Local Governments,
References E2. (2019). Clean Jobs America Report. Retrieve March 26 2020 from hltus:,/wv.e2.orgiwo-contentlop load sl2019/04/E2. 201 9-C$ear-Jobs-Arner1ca.pdf Gong, A. (nd.). Retrieved from to-kr.ow-about-dies-net-meterin.g-reolacament-in-michigan Heisig, E. (2019. December 12). Bird conservation groups sue to try and block 'Icebreaker wind farm project in Lake Erie
C!eveland.corn. !,,J Pnnt,d on recycod paper.
&
REFERENCES
Iloen, S.D.. Diffendorfer, J.E., Rand, J.T., Kramer, L.A.. Garrity. CF., and Hunt, H.E., 2018, United States WInd Turbine Database (ver. 2.3, Jarnary 2020): U.S. Geological Survey, Amencan Wind Energy Association, and Lawrence Berkeley National Laboratory data release, httosJ/doi.or/10.5066IF7TX3DN0. Lazard. (rid.). L.azam"sLevelized Cost of EnergyAnaivsi.s. McGinn, A. (2019). Fact Sheet- Jobs in Renewable Energy, Enorgy Efficiency, and Resilience . Environmental and Energy Study Institute. Retrieved from eesi.org Miao, R., Ghosh, P. N., Khanna, M., Wang. W., & Rong, J. (2019). Effect of wind turbines on bird abundance: A national scale analysis based on fixed effects models Energy Policy. 132, 357-366. doi: 10.1016li.enpol.2019.04.040 National Energy Board. (2010, August 28). Canada's Renewable Power Landscape 2017 - Energy Market Analysis. Retrieved March 26, 2020 from https;I/www.cer-rec.ac cpinrg/sttstc/lctrct'rprt'20 1 7cndrnwblown/n'vnclpn-eng.html Ohio Power Siting Board. (n.d.). 16-1871 -EL-BGN; Icebreaker Wind Facility. Retrieved February 24, 2020, from httos./!www. oD$b.Ohio.gOv/$itiflQcasebreakdOW nil 6-1 871 -el -ben-cebreaker-wind-facility-lake-erie/ Sources of Greenhouse Gas Emissons. (2019, September 13). Retrieved March 26, 2020, from https:liwww.eoagovighgsmisState Energy Data System. (nd.). Retreved March 26, 202, from httos:/!www,aia.aov/state/seds/ State Renewable Portfolio Standards and Goats. (2019, December 31). Retrieved March 26. 2020, from hps:/lw,ncst,orp! research!enerav'renewabls-portfolio-standards,asox Statistics Canada. Table 25-10-0019-01, Electricity from fuels, annual generation by electric utility thermal plants. dpi; hps:/! dui,cirgll 0.25318/2.510001901-eng U.S. Energy Information Administration. Electricity Data Browser. Retrieved March 26. 2020 from b.tQsJiwww.eia.00v/electrici! data.nho. World Health Organization. (2018). Environmental Noise Guidelines for the European Region. Retrieved from httoilwww.eurQ.
who.int,er.Ihorne
BRIAN O'SHEA Public Engagement Manager Apex Clean Energy, Inc.
8665 Hudson Blvd North, Suite 110 Lake Elmo, MN 55042 office: -260-6611 cell: 952-393-2986 brian.osheapexcleanenergy.com
I
www.apexcleanenergy.com
From: Wayne Watts <wwatts1420(gmail.com > Sent: Thursday, May 6, 20219:27:24 AM To: Brian O'Shea <brian.osheaapexcleanenergy.com >
Subject: Re: Planner Recommendations Good morning Brian,
I appreciate you taking part in our meeting Tuesday and for the information your provided the PC. After speak with a board member they would prefer I wait until Mark provides us with a completed final draft before sendir over to you. The first draft was just that, an early draft of updates and recommended changes to our ordinan By our next meeting everyone will have had the opportunity to review the materials you provided and ask questions should they have any. Once again thank you for attending our meeting and we look forward to seeing you on 8th of June if you canr it. If there is anything else you need please let me know. Wayne On Wed, May 5, 2021 at 7:23 PM Brian O'Shea <brian.oshea©pexcleanenergy,&grn> wrote: Hi Wayne,
Thank you again for the opportunity to participate in Tuesday's meeting. As a follow-up, I wanted to request copy of Mark Eidelson's recommendations to the PC regarding changes to the ordinance so that we could prepare a few maps to share with the PC at the next meeting where wind is discussed to illustrate the impa of the various setback criteria on buildable area for wind energy in the township.
Thank you and if you have any additional questions after reviewing some of the folder materials, please do hesitate to let me know.
-Brian O'Shea
Subject: Fwd: Wind Energy Myth Slides ,
Wayne Watts <wwattsl420©gmailcom>
Tue, May 4,
to Sheila Smith
You are viewing an attached message. ISP Management Mail cant verify
the authenticity of attached messages.
Forwarded message --------From: Brian O'Shea <brian.osheapexcIeanenergy.com > Date: Tue, May 4, 2021 at 12:51 PM Subject: Wind Energy Myth Slides To: wwattsl 420gmail.com <wwatts 1 420©gmail.com >
Hi Wayne, See attached for an updated version of these slides including Montcalm-specific slides. These can be printed for ti members for this evening. There are a few other updates since this was last made as well. Thanks, Brian O'Shea
Cot-ron Qaostn> ond W,rd Enery M,lis
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Subject: Re: Solar Ordinance example ,
Wayne Watts <wwatts1420gmail.com >
Mon, May 17, 12:31 PM (5 d
to Brian O'Shea
You are viewing an attached message. ISP Management Mail cant verify the authenticity of attached messages.
Brian, Thank for getting back to me so quickly on the wind information that was perfect. Also I appreciate you sending thi nformation. Yes hopefully the meeting will be a productive one. Regards, Wayne On Mon, May 17, 2021 at 12:28 PM Brian O'Shea <brian.patrick.osheagmail.corn> wrote: Hi Wayne, I don't have a dog in the hunt for Solar in your neck of the woods but if you are looking for a comprehensive ord that allows for Solar Farms while still covering all your bases, Sheridan Township has a strong model that! have replicated in other communities. Just passing it along as a reference. Good luck with your meeting tomorrow. Brian Get Outlook for Android