April 15, 2021 Dear Supervisor Buyze and members of the Pierson Township Board: On February 16, the Pierson Township Board voted to establish a wind energy zone covering areas east of Federal Rd (Northland Dr). Many counties and townships across Michigan have gone this same route, designating specific areas of their township where wind energy development is appropriate and compatible with surrounding agricultural land uses. As the board reviews its ordinance in this new context, we wanted to offer the following comments for consideration if the board indeed wants to preserve the private property rights of landowners in this new overlay district to explore wind energy development on their properties. Background – Origin and Intent of Current Ordinance First, it is important to note that the ordinance on which the current Pierson Township ordinance is based was originally written with the intent of discouraging wind energy development. It originated in Almer Township in Tuscola County and was later replicated in Casanovia Township in Muskegon County following a lengthy fight over a proposed wind project in that community. Almer Township is facing ongoing litigation over a different wind development. Apex Clean Energy cannot speak to the specifics of either because we were not involved in either of these two communities. As you examine the ordinance more closely, its original intentions become clear. One example is found early on. Section 5.05(c)(2) cites a number of sources as evidence that was considered in the development of the ordinance and used to set the tone for the rest of the document. Unfortunately, several of these publications are from opinion pieces or sources that lack sound scientific standing. One of the referenced pieces of “evidence” is an opinion piece published in Canadian Family Physician magazine (not a study, even though it is often referenced as such by people who express concern over wind energy). Here is how it was described in a literature review by Frontiers in Public Health a multidisciplinary open-access journal which publishes rigorously peer-reviewed research: “Overall, the authors did not provide adequate data or support for their arguments, in both papers, nor did they provide accurate information regarding the weight of scientific data on the issue.” (Source: https://www.frontiersin.org/articles/10.3389/fpubh.2014.00063/full)
Another citation, (Salt,A., and Kaltenbach, J, Infrasound From Wind Turbines Could Affect Humans, 31(4) Bulletin Science, Technology and Society, 296-302 (2011)), was also critically reviewed by Frontiers in Public Health. Their review found that “the series suffers numerous flaws from a scientific, technological, and social basis. Many of the claims used as evidence of a relationship between health effects and wind turbines were unsubstantiated, entirely unsupported and contains alarmist extrapolations.” (Source: https://www.frontiersin.org/articles/10.3389/fpubh.2014.00063/full)
A third reference, Strategic Health Impact Assessment on Wind Energy Development in Oregon (2013), is a review of respondents conducted between 2010 and 2011, a time when wind energy technology was far less efficient, quiet and evolved than it is today, which states in the opening pages of its Key Findings and Recommendations that “our review was constrained by limited scientific information on some topics, and limited staff time and resources to conduct an exhaustive review of these issues. Given the evolving scientific evidence on how environmental, social, and economic factors influence health, the findings and recommendations in this report may need to be revisited as new information becomes available.” The presence of these sources, and given the advancements in turbine technology and additional scientific research that has been conducted since these documents were originally compiled, we question the intent behind the ordinance upon which this was modeled. Zoning for Wind Energy If the intent of Pierson Township is to allow for the potential responsible development of wind energy in a specific and restricted area of the township, the current ordinance is not compatible with those goals. Casanovia Township does not have a wind project and certain members of the Almer Township community are known to fight wind energy across the state, including some who are very involved in that process here in Montcalm County. Multiple ordinances throughout Michigan are demonstrated to be more compatible with this approach, including the Isabella County Zoning Ordinance, the Pine River Township Zoning Ordinance, or the Huron County Wind Ordinance, which also uses an overlay approach (note that the Huron County ordinance from 2015 is already out of date when it comes to modern turbine heights). Typically, an overlay zoning approach would set standards for wind energy systems as an allowable use and utilize the site plan review process, rather than the special use permit process, to approve specific developments. Those standards would be specified in the ordinance (see MSU Extension Sample Zoning for Wind Energy Systems, p.19 for more on this approach). Specific Provisions Regarding the current ordinance, below are some specific provisions that may be amended to better protect the property rights of both participating and non-participating landowners while also ensuring appropriate rules are in place for safe, responsible wind development. These suggestions will provide the township with appropriate measures for evaluating wind energy projects on a case by case basis while maintaining strong standards consistent with those seen in other communities throughout Michigan. Height Limit In general restricting turbine height to 500 feet will increase the number of turbines required to generate a proposed project’s maximum output. For this reason, communities across the upper Midwest are removing height restrictions to allow for the most advanced and efficient turbines to be installed at proposed wind projects. A height limit allowing for taller turbines will allow a project to install 40-50% fewer turbines than with a 500-foot limit, due to improvements in technology. Modern turbines with longer blades and larger capacity generators are also quieter due to slower revolution of the blades. It is also important to note that 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 enforce airspace restrictions. These agencies also monitor impacts to radar and microwave beam paths and may require 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 cited in your community. In short – taller turbines means fewer turbines, less sound and visual impacts, and fewer acres taken out of agricultural production. For that reason, we recommend removing the height limit restriction. Sound The current language regarding sound is overly complex for both the township and a potential developer. In general, the section on sound is not fully based on science and has several extraneous requirements. The limits on dBA for non- participating parcels should be measured at a residence. •
Sound limit at property line as opposed to 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 10minute 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 sound at the edge of an open field. If a property line sound limit is deemed necessary, 50 dBA would be more appropriate, as was done in Isabella County.
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Sound level limit: There is no scientific basis for the ordinance’s current proposed limit of 39 dBA at a property line. A report by Health Canada in 2014 found no adverse health effects up to a level of 46 dBA at a residence. A 2018 conditional recommendation by the World Health Organization (WHO) suggests a 45 dBA at a residence (measured as an annual average), which is made not based on adverse health impacts (WHO found no evidence of this) but rather potential annoyance impacts.It is worth noting that sound is measured on a logarithmic scale, meaning that a 45 dBA sound is perceived to be half as loud as a 55 dBA sound. 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 dB Leq, so that people may sleep with bedroom windows open.”
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Sound measurement time period: The most-regarded recommendations on sound and health, from the WHO to Health Canada, use an average, rather than an Lmax measurement, for safe sound limits. A sound limit of 45 dbA from a non-participating residence could be an appropriate design standard, provided it is measured in the same way that all of the sound science, including the WHO, suggests – as an average. The WHO guidance uses essentially a year-long average. That obviously isn’t practical for compliance purposes so we think a one hour average [Leq-1 hour] makes sense. This means the loudest possible hour of operations would have to have an average sound level that was below the decibel limit. Some states, such as New York, use an 8-hour average. A 45 db limit at a residence will ensure a 30db level in the house as a residence, even with the windows open, provides insulation from about 15 db, and closer to 20-db with the windows closed according to the U.S. EPA.
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dbC Low Frequency Noise Limit: Low frequency noise and infrasound from turbines is similar to noise from many other natural and human-made sources. Infrasound produced by wind turbines is not within the human hearing range (many orders of magnitude below the human hearing threshold). ANSI standards for low frequency noise suggest minimal annoyance at a limitof 65 dB, measured at a residence. Low frequency noise measured from
operating wind farms is consistently below this level. There is no scientifically or medically supported evidence that wind turbines have direct impacts on human health or welfare including low-frequency-sound or infrasound. Since everyday occurrences introduce higher levels of infrasound than wind turbines and these activities do not cause health concerns and are not regulated by a dBC threshold, in our opinion the concept of a turbine dBC limit should be removed from the ordinance and this would be consistent with the vast majority of wind ordinances throughout the state and country. If a dbC threshold is included, it should be 65 dBC to be consistent with ANSI standards. Setbacks •
Setbacks should be based on valid safety considerations. The four (4) times tip height setback in the current Pierson township ordinance exceeds public safety requirements and industry standards and would have the practical effect of exclude wind energy development from the township based on the road right of way setback alone, based on the typical layout of Michigan townships. Based on the latest guidance from wind turbine manufacturers and Apex Clean Energy’s internal standards, setback distances of 1250 ft. or 2x total height, whichever is greater, from an occupied building or residence and 1.1x total height from the lot lines of a non-participating parcel are more appropriate. Public safety impacts of wind turbine failure events have been studied extensively with over 60,000 wind turbines currently operating safely in the U.S. In 2018, General Electric Renewable Energy (a leading U.S. wind turbine manufacturer) released guidance on Setback Considerations for Wind Turbine Siting. This document outlines the potential safety risks associated with wind turbines, even in the rarest instances, including: Falling Objects, Tower Collapse, Ice Throw, and Blade Failure. It then provides recommendations for industry best practices and safety setback considerations, all of which are less than or equal to the proposed setbacks outlined above.
There are many other aspects of the current ordinance that I could discuss, including overly burdensome language on issues ranging from decommissioning to shadow, but the ultimate question for the Pierson Township board is whether you want to allow farmers and interested landowners in the wind energy zone east of Federal Road to use their private property for wind energy development. If the answer is yes, the current ordinance should be reworked with that in mind. If the answer is no, then the current zoning ordinance may likely exclude wind from the township, disadvantaging those landowners who are interested in pursuing this type of land use. Thank you again for your continued work on your ordinance and for giving serious thought to where and how wind energy fits with Pierson Township. If you have any questions or would like to discuss the above items further, please do not hesitate to contact us. Sincerely, Albert Jongewaard Senior Development Manager Apex Clean Energy
Clerk From: Sent: To: Cc: Subject: Attachments:
Supervisor <supervisor@piersontwp.org> Thursday, June 3, 2021 7:51 AM 'Albert Jongewaard' 'Clerk' FW: Public Hearing - Pierson Wind Ordinance PiersonParcelOverview_Imagery.pdf; Pierson Ordinance Setbacks (Apex Standards - all parcels over 20 acres signed).pdf; Pierson Ordinance Setbacks (Proposed Pierson Ordinance - all parcels over 20 acres signed).pdf; Pierson Township Ordinance Letter (4.15.21).pdf; HEI - Review of Pierson Township Noise Ordinance_20210528.pdf
Good morning Albert, I had a prior commitment yesterday and was not near a computer, so just reading this material. With the clock ticking to the hearing, Sara took it upon herself to forward on to the rest of our Board and Planning Committee, so they had time to get to it prior to tonight’s hearing. THANK YOU SARA! The Planning Committee to date has, in my opinion, done a good job of taking all views into consideration on an extremely emotional issue. I’m confident they will continue to do so in evaluating the attached and in their recommendations to the Board on the amendments to be discussed this evening. See you this evening! Dan Dan Buyze Supervisor, Pierson Township supervisor@piersontwp.org (616) 636-8570 ext 205 (616) 366-1615
From: Clerk <Clerk@piersontwp.org> Sent: Wednesday, June 2, 2021 3:03 PM To: Dan Buyze ~ Supervisor <supervisor@piersontwp.org>; treasurer@piersontwp.org; cmhyrns@att.net; sacbbb727@gmail.com; 'Jason Bergman Trustee' <trustee1@piersontwp.org>; Bill Grice <trustee2@piersontwp.org> Cc: jnward2@frontier.com; donnaericksen@charter.net; wgrice10@gmail.com; Tylerlecc@aol.com; zoning@piersontwp.org Subject: FW: Public Hearing - Pierson Wind Ordinance Please see attached email. Sara
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From: Albert Jongewaard [mailto:albert.jongewaard@apexcleanenergy.com] Sent: Wednesday, June 2, 2021 1:49 PM To: Dan Buyze <supervisor@piersontwp.org> Cc: clerk@piersontwp.org Subject: Re: Public Hearing - Pierson Wind Ordinance Dear, Supervisor Buyze, and members of the Pierson Township Board and Planning Commission: In advance of the Public Hearing on wind ordinance setbacks scheduled for June 3, 2021, enclosed please find several documents and comments on behalf of Apex Clean Energy, the Montcalm Wind project, and the supportive landowners from Pierson Township who have chosen to exercise their private property rights and participate in this project. First, attached please find three maps that are intended to help depict the impact of the proposed setbacks on potential usable ground within the township’s wind energy district East of Federal Rd. The first map is an overview of the township, depicting the portion of the township where wind energy is being considered vs. not. The next two maps are designed with the assumption that every parcel larger than 20acres in allowable wind district has chosen to participate in the project. This is of course not the case in real life, however, for the purpose of this exercise it allows us to show the difference between what is “buildable” and “not buildable” based on changes to setback distances. One map depicts the proposed Pierson Twp. setbacks, and the second is modeled on the internal best practices that Apex Clean Energy would otherwise normally use when designing a responsible and safe project. As one can see, the differences in “buildable” ground is significant, and these boundaries do not take into consideration environmental, shadow or the myriad other regulations that a project developer must adhere to. Secondly, and with reference to the maps and setbacks in general, I would like to reiterate a couple points from the letter we submitted to the township on April 15, 2021. Specifically, the portion devoted to setbacks: Setbacks should be based on valid safety considerations. The four (4) times tip height setback in the current Pierson township ordinance exceeds public safety requirements and industry standards and would have the practical effect of exclude wind energy development from the township based on the road right of way setback alone, based on the typical layout of Michigan townships. Based on the latest guidance from wind turbine manufacturers and Apex Clean Energy’s internal standards, setback distances of 1250 ft. or 2x total height, whichever is greater, from an occupied building or residence and 1.1x total height from the lot lines of a non-participating parcel are more appropriate. Public safety impacts of wind turbine failure events have been studied extensively with over 60,000 wind turbines currently operating safely in the U.S. In 2018, General Electric Renewable Energy (a leading U.S. wind turbine manufacturer) released guidance on Setback Considerations for Wind Turbine Siting. This document outlines the potential safety risks associated with wind turbines, even in the rarest instances, including: Falling Objects, Tower Collapse, Ice Throw, and Blade Failure. It then provides recommendations for industry best practices and safety setback considerations, all of which are less than or equal to the proposed setbacks outlined above. (A full copy of this letter is attached).
(Note: the Montcalm Wind project has set an internal design goal for 1.5x tip height from any non-participating property line. This setback is greater than what was referenced in our April letter.) Lastly, in reviewing the township’s ordinance, we asked Hankard Environmental, a professional acoustical consultant with more than thirty (30) years working in the energy sector to please review the sound component of this ordinance. Though we are aware that the focus of this week’s public hearing is on physical distance setbacks, we wanted to share this analysis of portion of the ordinance pertaining to sound with you for future and current review and consideration. Thank you for your attention to these materials. I look forward to speaking with the members of the planning commission tomorrow evening. 2
Kindly, ALBERT JONGEWAARD Senior Development Manager Apex Clean Energy, Inc. 8665 Hudson Blvd. N., Suite 110 Lake Elmo, MN 55042 cell: 251-402-6831 | office: 612-315-6171 | fax: 651-315-1519 albert.jongewaard@apexcleanenergy.com | www.apexcleanenergy.com
Safety • Integrity • Entrepreneurship • Sustainability • Professionalism This transmittal may be privileged or confidential. If you are not the intended recipient, please immediately notify us by email and do not copy or retransmit. Not printing this email saves energy and conserves resources.
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May 28, 2021 Pierson Township Board and Planning Commission 21156 W. Cannonsville Road Pierson, MI 49339 Re:
Review of Noise-Related Portions of the Township of Pierson Wind Energy Ordinance
Dear Board and Commission Members, I understand that the Pierson Township Planning Commission (Commission) is currently reviewing the Township’s wind ordinance, and that the ordinance does and will govern wind development within a specific zone identified by the Township. On behalf of Apex Clean Energy, I reviewed the noise-related portions of the Ordinance (Ordinance to Amend Zoning Ordinance to Provide for Public Utility Facilities and Wind Energy Conversion Systems, Ord. No. 2020-01, Amended to 2021-01). The Town may not have known it when it adopted the current Ordinance, which has its origins at the local level in Michigan, but the ordinance was written to be challenging and as it stands it effectively rules out any chance for wind development. If you are considering changes to it, I urge you to at least understand what you have now, and I offer suggested edits that if adopted will allow responsible wind development (from an acoustic perspective at least). My qualifications for conducting this review are (1) I have been a practicing acoustical consultant in the energy sector for 30 years and have had the opportunity to review and work with ordinances, laws, and regulations on 50 wind projects in 15 states, (2) I regularly measure noise from operating wind farms and predict noise levels as part of permitting of proposed wind projects, and therefore have a firsthand understanding of both the science and of what residents experience, and (3) I am a member of the subset of the acoustics profession (INCE, ASA) that studies the issues surrounding noise from wind turbines and I regularly testify along with medical and other scientific professionals at local and state hearings. A very high-level summary of my review of the noise-related aspects of the Township of Pierson wind energy ordinance is as follows (with references to subsections of the Ordinance, Section 5.05). Additional information and references are attached, as is an edited version of the current Ordinance with my recommended changes.
In very simple terms, based on my experience, no existing or future wind energy project (wind farm) could meet any of these limits contained in the current ordinance: o 5.05(h)(30)(i): 39 dBA. This is lower than any functional limit I am aware of in the U.S. at either a state or local level. By “functional limit” I mean one that could feasibly be met by a project. Non-functional limits may or may not have the express purpose of banning wind development, but that is their outcome. 39 dBA is a non-functional limit. o 5.05(h)(30)(i): 49 dBC. This is far lower than the typical low frequency noise limit of 65 dBC (used in New York, for example). This level of sound is lower than what is made by a slight breeze blowing through trees or crops and as a result could not be measured.
C O L O R A D O
W I S C O N S I N
phone (303) 666-0617 www.hankardinc.com phone (608) 345-1445
o 5.05(h)(30)(iii): 50 dB from 0.1 to 1 Hertz (infrasound). First, this level of infrasound is present around us from other sources (driving in a car, the wind). Second, infrasound from turbines has been repeatedly shown to be inaudible and have no demonstrated health outcomes. o 5.05(h)(30)(i-iv, vii): Furthermore, the current Pierson limits are applied at any point within a non-participating parcel. These limits are not possible to meet (nor warranted) at a residence, let alone at a property line.
The following aspects of the ordinance are either technically incorrect, unworkable in the real world, onerous, or duplicative and unnecessary: o 5.05(h)(30)(ix): The current Pierson ordinance tries to limit noise based on a one-second time interval. In other words, the turbine noise level cannot exceed the stated limits for even a second. This stands in stark, and incorrect, contrast to the studies on which all noise limits in use today are based. That is, almost all of the noise level limits in use today in the U.S. at local, county, and state levels have their roots in work conducted decades ago by the U.S. EPA and also that of the World Health Organization (WHO). The studies on which their recommendations are based use average times of hours, days, and even years. The most recent WHO guidelines for wind turbines are based on the annual average of the 24-hour average. The use of one-second by the authors of the current ordinance was meant as a scare tactic. Wind turbines, when operating at or near their full acoustic output, are a very constant source of noise and should be regulated on a ~1-hour basis like all other sources of environmental noise. o 5.05(h)(30)(i, ii): Establishing a dBC limit at 10 dB above the dBA limit is an inappropriate and misguided approach to controlling low frequency noise. The standard approach to assessing low frequency noise is to compare the dBC level with the dBA level of the same sample. If the difference between dBC and dBA exceeds a threshold then the sample is recognized as having a prominent low frequency component. A typical threshold for this is 15 to 20 decibels, not 10 dB as the ordinance suggests. When a substantial low-frequency component is established, only then does it become relevant to impose a dBC limit. Such a limit should be specified in absolute terms (not relative to a dBA limit), and a commonly recommended level is 65 dBC. o 5.05(h)(30)(i, ii, vi): There is not an explicit need for separate day/night limits, as wind turbines operate similarly 24 hours per day. Nighttime is often the time of concern, due to expectations of quiet for sleeping and better noise propagation conditions. On some projects we have seen turbines operate differently during the night versus the day, but that is the exception. o 5.05(h)(30)(iii, iv): In the current ordinance, Section 30 Noise, subsections iii and iv are complex, beyond the scope of any regulatory study I have been a part of. They are geared toward infrasound, which as explained below, is inaudible to humans and has never been shown to cause adverse health effects. o 5.05(h)(30)(ix): The existing ordinance refers to the measurement of one-second average noise levels, versus what is appropriate and used elsewhere in practice which is the 10minute or 1-hour Leq. HEI’s experience, and that of other practitioners, is that 10-seconds yields the best results for a “small block” of time (following ANSI S12.9 Part 3) and 10-
Review of Noise-Related Portions of the Township of Pierson Wind Energy Ordinance May 28, 2021
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minutes or one-hour yield the best results for a large block of time. In fact, ANSI S12.9 Part 3, which is a measurement standard the existing ordinance refers to, suggests an average of 10 to 30 minutes. o 5.05(g)(2)(ii): Ambient noise surveys are required in some places, such as Minnesota and Wisconsin, but the data are not significantly useful. It is understood and agreed that wind turbine farms are often located in rural/agricultural areas, and that it is quiet in many of these areas. What is of importance is how loud it is when the wind turbines operate. On some nights the turbines will be operating fully and the ambient noise levels are as low as 30 to 35 dBA. Most nights they are 35 to 45 dBA. Some nights 45 to 55 or more dBA. This is known and understood. o 5.05(g)(9)(v): The list of “SCADA data” required under the ordinance is onerous, not typically collected, and not needed for a noise analysis. All that is needed are 10-minute average values of the following for the nearest turbines to a measurement location: hubheight wind speed and direction, rotor speed, electrical energy output as a percentage of full-load, and possibly blade pitch angle. Typically, only the closest three or four turbines are audible at any one measurement location. o 5.05(g)(9)(v): The issue of turbine wear over time, and thus the possibility of increasing noise levels over time, is presented in the ordinance as something to be concerned with and to measure, but the literature does not support this. Properly maintained gears, motors, and blades have yet to demonstrate any measurable increase in noise levels at operating wind farms. o 5.05(i)(2): The current ordinance calls for all measurements to be attended. This is understood, and in fact called for by ANSI S12.9 Part 3. However, the amount of useful data that can be obtained by fully attended measurements is limited to what the weather provides. In addition to some initial period of attended measurements, it is recommended that turbine conditions, noise, and wind conditions be monitored over an extended period of time, i.e., at least one month. This way the true turbine-only noise level pattern will become clear over many different nights and atmospheric conditions. I have been party to projects that require attended-only measurements and the data recovery and quality of the assessment were not as good as those projects where long-term unattended monitoring was also conducted. o 5.05(g)(9)(viii): The paragraph on modeling in the current ordinance appears to be geared toward replicating the theoretical, absolute worst-case noise level that turbines could produce at any second. There is no longer a need to replicate, or fear, hypothetical conditions. HEI and other practitioners have conducted many model-to-actual measurement comparison studies to the point where the relationship between the two is well understood for the ISO 9613-2:1996 method.
Despite all of the above criticisms, the existing ordinance provides a reasonable framework for a workable wind turbine noise ordinance. Attached is a “tracked changes” version with my recommended changes. A summary of the changes is as follows:
Review of Noise-Related Portions of the Township of Pierson Wind Energy Ordinance May 28, 2021
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o Change the limits to 45 dBA and 65 dBC, as measured as a one-hour Leq for loudest-hour conditions (all nearby turbines operating, stable atmospheric conditions). These are applicable during both the daytime and nighttime. o If an ambient noise survey is deemed necessary, the survey should be conducted at representative residences not along property lines, it should be longer (two weeks), and geared toward assessing ambient noise levels during the periods that wind turbines would operate. The survey should not be conducted according to ANSI S12.9 Part 3, as the intent of that standard is to measure noise from a specific source (not the ambient). The data should be collected in 10-minute intervals. o The modeling (prediction) of noise levels from wind turbines is a well-understood process at this point. The section on modeling should be reworded to express the following: Modeling should be conducted using the ISO 9613-2:1996 method. Input parameters shall be set based on the known relationship between this method and worst-case (loudest) measured wind turbine noise levels, including: manufacturer’s sound emission levels corresponding to maximum acoustic output, temperature and relative humidity values providing the least attenuation, no barriers or terrain effects, a 0.5 ground factor, and 2 dBA added to the results. Noise levels shall be predicted using the L eq metric with a time interval of 10 minutes to one hour. o More detail is needed to define the post-construction noise measurement protocol. The ordinance properly specifies following ANSI S12.18 and S12.9 Part 3. For the latter, it is recommended that a combination of attended and unattended measurements be conducted. The data should be collected in both 10-second and 10-minute intervals. o The following sections of the ordinance can be deleted either because they are duplicative, incorrect, or beyond the scope of what is necessary and common practice: Section (g)(9)(vii), wear. Section (h)(30)(ii), daytime noise limits. Section (h)(30)(iii) and (iv), infrasound. Section (h)(30)(viii), infrasound limits. Please let me know if you have any questions regarding the above or would like additional information. Sincerely,
Michael Hankard Owner and Principal Acoustical Consultant Full Member of INCE and ASA Attachments:
Supporting Information Township of Pierson Ordinance Mark-up (electronic)
Review of Noise-Related Portions of the Township of Pierson Wind Energy Ordinance May 28, 2021
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The following provides supporting information for Hankard Environmental’s review of the noise-related aspects of the Township of Pierson, Michigan’s wind energy ordinance.
1. Adequacy of current standards (dBA) Wind energy opponents often recommend an artificially low noise limit for wind projects, such as 39 dBA, which is known to be financially infeasible. This is a lower limit than (1) the level of 45 dBA recommended by the World Health Organization (WHO, 2018), (2) 46 dBA, which is the level below which the Health Canada study found no Adverse Health Effects (AHE), (3) the 45 to 50 dBA range of limits which is overwhelmingly common at a local and county level throughout the Midwest where wind projects have been successfully developed, or (4) the limits imposed by U.S. states (WI 45 dBA, IL ~47 dBA, MN 47 to 50 dBA, South Dakota 45 dBA, New York 45 dBA, Colorado 50 dBA). The use of 39 dBA as a limit has been argued at hearings in McLean County, IL, before the South Dakota PSC, and in many other hearings and forums. In the cases of McLean county and South Dakota, the existing limits of 45 to 47 dBA were upheld. Figure 1 below shows the measured noise levels from nine field studies conducted by Hankard Environmental at seven different operating wind farms across the U.S., including four in the Midwest. All the reported levels are based on measurements spanning multiple nights with high wind/power conditions. These are the very loudest turbine-only noise levels measured at each location, and in most cases the levels were measured at the residences located closest to turbines. The measured levels range from 39 to 48 dBA and in all cases demonstrated that the applicable standard was being met. In other words, with a reasonable limit, e.g., 45 to 50 dBA, wind turbine projects have been and can be successfully designed and operated.
Measured Turbine Noise Level (dBA)
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Measurement Location
Figure 1: Measured Turbine-Only Noise Levels at Full Operation
Review of Noise-Related Portions of the Township of Pierson Wind Energy Ordinance May 28, 2021
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2.
Low Frequency Noise (dBC)
First, it should be understood that measured LFN levels from wind turbines are not as loud as those produced by cars and trucks, barn ventilation fans, and even a moderate wind blowing through the trees. LFN levels from watching television or those produced by a forced-air home heating system can be higher than those from wind turbines. Modern studies confirm that turbines are not a source of significant LFN levels. Second, the manner in which the current ordinance attempts to regulate LFN is incorrect and completely unworkable. For example, Hessler’s 2004 work defines a source with excessive/unbalanced LFN as having dBC – dBA noise level delta of >20 dB. The ordinance currently uses a threshold of 10 dB, which is not supported or used in other jurisdictions. Noise levels measured at modern wind farms by Hankard Environmental do not meet this criterion, as demonstrated by the data shown in Table 1 below (the differences range from 11 to 19 dB but do not exceed 20 dB). These data represent LFN levels measured at multiple modern wind farms in the U.S. Hessler’s 2004 work indicates that turbines are not a significant source of LFN. Furthermore, in 2017 Hessler, Leventhall, Schomer, and Walker wrote that these dBC to dBA differences do not occur when assessing LFN at wind turbine sites. (“A wind turbine is not a classic LFN source; that is, one with excessive low frequency spectral content.” Hessler et al., 2017) Even if one were to assume turbines might be a source of significant LFN, the measured absolute dBC levels do not meet established standards. As demonstrated by the data in the table below, measured LFN levels range from 53 to 63 dBC, and never exceed Hessler’s recommended limit of 65 dBC for intermittent sources of noise (which wind turbines are; as demonstrated below, again with real-world data, they produce full noise emissions only 25 to 30 percent of the time). Measured dBC levels even comply with Hessler’s 60 dBC recommendation (for sources that operated continuously) more than ½ of the time. Note, Hessler’s work regarding dBC levels was with respect to conventional gas-fired power plants, which can be an actual source of LFN.
Review of Noise-Related Portions of the Township of Pierson Wind Energy Ordinance May 28, 2021
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Table 1 – Measured dBA and dBC Wind Turbine Noise Levels
As noted by the most recent and relevant study of the impacts of wind turbine noise on humans, the Health Canada Study: “No additional benefit was observed in assessing LFN because C- and A-weighted levels were so highly correlated (r=0.94) that they essentially provided the same information. It was therefore not surprising that the relationship between annoyance and WTN levels was predicted with equal strength using dBC or dBA and that there was no association found between dBC levels and any of the self-reported illnesses or chronic health conditions assessed (e.g., migraines, tinnitus, high blood pressure, etc.)” Also from the Health Canada Study, “... based on the field studies that are currently available the argument can be made that the change in high annoyance due to WTN is not driven by LFN and is effectively approximated by a long-term A-weighted metric.” (Michaud, et. al., 2016).
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3.
Assessment Point (residence versus property line)
It is perfectly acceptable to limit noise levels at a property line versus a residence, as long as the limit chosen is appropriate for the use being protected. Land use at vacant or agricultural land along a property line would only see daytime use on any kind of a regular basis. In acoustics, 50 to 55 dBA is generally considered protective of daytime land use (e.g., to protect against speech interference). The current Pierson daytime limit of 45 dBA is very low compared to other standards and limits. As discussed above, 45 dBA is meant to be protective of sleep which would only occur at a residence on a regular basis. Table 2 summarizes a survey of daytime noise standards and limits applicable to wind farms as specified in official ordinances from the WHO, EPA, and various Midwest jurisdictions. All of these jurisdictions specify a daytime limit to be applied at a residence (or similar terminology referring to occupied structures). Most of the daytime limits are 50 dBA or greater. Those that specify 45 dBA do so at residences and simply have one limit for all times of the day. Only one of these jurisdictions, Shiawassee County, specifies a property line limit. While the Shiawassee noise limit for a residence is 45 dBA, their limit for a property line is 55 dBA. As currently written, the Pierson ordinance limit of 39 dBA would apply to a property line measurement noise measurement during the daytime. Most other jurisdictions specified daytime limits at residences, where their limits were between 6 and 16 dB higher than the Pierson property line-based limit. The only other jurisdiction in our sample to have a property line limit (Shiawassee) was 16 dB higher than the Pierson ordinance. The Pierson limit is an extreme outlier among other counties and states in the region.
Table 2 – Specific Daytime Noise Limits in Various Midwestern Jurisdictions Daytime Noise Limit at Non-participants
Property line or structure?
Time Interval
50 to 55 dBA Leq 55 dBA 45 dBA Leq 55 dBA Leq 55 dBA Leq 45 dBA Leq 50 dBA Leq >55 dBA Leq equivalent
At use point At use point residence residence property line residence residence residence
16 hours 24-hours 2-hours unspecified unspecified unspecified 1-hour 1-hour
Minnesota
60 dBA L50
residence
1-hour
South Dakota (Deuel County)
45 dBA Leq
residence
unspecified
Jurisdiction/Agency WHO EPA Huron County, MI Gratiot Count, MI Shiawassee County, MI Shiawassee County, MI Wisconsin Illinois*
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4.
Infrasound
Wind turbines do produce infrasound. As with LFN, it is imperative to understand that humans routinely experience infrasound, as it is produced by sources such as the wind, ocean waves, home heating systems, etc. Riding in a car, tractor, or plane a person experiences far higher levels of infrasound than those produced by wind turbines (Sonus, 2010). However, none of these sources, including wind turbines, produce enough infrasound for humans to detect. The levels produced are, to put it in layman’s terms, very far below the threshold of hearing in humans at these very low frequencies. This fact has been measured and verified by leading researchers, as infrasound levels from modern wind turbine facilities have been measured at and inside homes by an international cast of researchers (Baden-Wuerttemberg, 2016; Hessler et al., 2017; van den Kamp and van den Berg, 2018). Furthermore, the threshold of human hearing has been tested and measured on a range of human populations and in a number of technical ways (Pedersen, 2008; Maijala, 2021). The LFN levels produced by wind turbines are more than 50 dB below the lowest threshold of hearing in humans. This is a logarithmic relationship, meaning that the differences are far greater than in the conventional (arithmetic) mathematics we are used to. The figure below shows infrasound measured from a modern ~2.5 MW turbine conducted by researchers, including Hessler and Schomer (Walker, et al., 2012). The small peaks in energy from about 1 Hz to 5 Hz are the result of the blades passing the tower. This is a known and expected result. The figure below illustrates that the infrasound levels produced by wind turbines are 50 dB below the threshold of human hearing. The plot shows several hearing thresholds, as they have been tested by many researchers over the decades, in different ways, and over different frequency ranges. The thresholds shown are the lowest recorded, thus most people can’t even hear this well. Note – most of the thresholds shown are from Walker et al.’s (2012) Shirley report where they cite the ISO threshold and others. We have added elements to the plot from the only report that goes to the wind turbine infrasound frequency of ~1 to 5 Hz, which is from Pedersen (2008). Pedersen looked at all the thresholds measured since ~1920 and extended them down in frequency and published the one we show, which is the lowest of all he found.
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Delta ≥ 50 dB
Infrasound Threshold (Pedersen, 2008)
Wind Turbine Infrasound
Figure 2: Human Hearing Thresholds Compared to Measured Turbine Sound
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< Infrasound Range >
1 Hz
8 Hz
Figure 3: Turbine Noise Levels Measured Indoors and Outdoors Wind energy opponents have for at least a decade theorized, again be mindful of the fact that these are only theories, that perhaps there is something about infrasound that makes it different from other sources such that it could impact humans more directly or severely. In this regard wind energy opponents routinely cite the words and non-peer-reviewed references of other wellknown wind energy opponents – Jerry Punch, Richard James, Stephen Cooper, and Dr. Salt. These claims can be summarized to include: (1) Infrasound can enter or affect the human body through a pathway other than the ear; (2) Humans can “sense” infrasound from turbines, even though they do not sense it from the other sources; and (3) That the pulsating nature of wind turbine infrasound makes it more impactful.
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It is best to understand what leading researchers and governments across the world have said based on their research into wind turbine infrasound’s impact to humans: A 2021 study conducted in Finland demonstrates that humans cannot detect infrasound from wind turbines (Maijala, et al., 2021): “An extensive study involving both psychoacoustical and psychophysiological measurements of the autonomic nervous system was carried out to investigate whether infra-sound in wind turbine noise may have some adverse effects on humans. The participants represented individuals who experienced symptoms from wind turbines and those with-out symptoms.” “In the conditions used in the current study, infrasound did not contribute to the detection, annoyance, or physiological reactions to wind turbine sound.” Japan Ministry of the Environment study: “Super-low frequency range components of wind turbine noise [20 Hz or lower] are at imperceptible levels. Therefore, wind turbine noise is not an issue caused by super-low frequency range.” (Kimura, et al., p. 5760) French Government (ANSES) measurement study at three wind farms concluded: “The results of these campaigns confirm that wind turbines are sources of infrasound and low sound frequencies, but no exceedance of the audibility thresholds in the areas of infrasound and low frequencies up to 50 Hz has been found.” The study also noted “all the experimental and epidemiological data available today do not show any health effects related to exposure to noise from wind turbines, other than noise-related annoyance.” (ANSES, 2017) Health Canada’s 2015 Community Noise and Health Study is the largest-yet epidemiological study conducted to address community health concerns in relation to wind turbines. It concluded the following regarding infrasound: “Within the normal hearing frequency range, sounds have to be at a very low level to be non-audible, and at those levels would not contribute to any type of known hearing dysfunction. For low-frequency signals, including infrasound, activation of the vestibular system is possible if the signal levels are at high intensity. For both normal subjects and even for individuals with certain medical conditions that result in lowered vestibular activation thresholds (e.g., Tullio syndrome, superior canal dehiscence, perilymphatic fistula, or enlarged vestibular aqueduct), wind turbine signals are unlikely to reach the activation threshold. It is therefore unlikely that wind turbine noise could directly cause any symptoms associated with vestibular dysfunction, such as vertigo, dizziness, vision problems, or nausea.” (Council of Canadian Academies, 2015, p. 101). The Australian Medical Association evaluated the health impact relative to wind turbines and released a position statement: “The available Australian and international evidence does not support the view that the infrasound or low frequency sound generated by wind farms, as they are currently regulated in Australia, causes adverse health effects on populations residing in their vicinity. The infrasound and low frequency sound generated by modern wind farms in Australia is well below the level where known health effects occur, and there is no accepted physiological mechanism where sub-audible infrasound could cause health effects.” (AMA, 2014). A 2016 German study, which spanned two years and examined six wind turbines by different manufacturers and with different sizes and covering a power range from 1.8 to 3.2 MW,
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concluded that “Infrasound is caused by a large number of different natural and technical sources. It is an everyday part of our environment that can be found everywhere. Wind turbines make no considerable contribution to it. The infrasound levels generated by them lie clearly below the limits of human perception. There is no scientifically proven evidence of adverse effects in this level range” (LUBW, 2016). A well-known wind energy opponent and purveyor of misleading information is Jerry Punch. Punch is an audiologist (not a doctor nor an acoustician), has done no independent research nor has he published any peer-reviewed articles, and therefore merely parrots the theories of others. Richard James, an acoustical consultant and another well-known opponent of wind energy, has measured infrasound from turbines. However, as discussed above, there is no question that such infrasound exists. Mr. James has tried to opine on the health impacts of infrasound, but he is not a doctor and does not have the qualifications to do so (his opinions have repeatedly been rejected by courts of law). Stephen Cooper conducted measurements of infrasound and collected the comments and reports of residents who claimed that they were being impacted by wind turbine infrasound. Again, the measurements only validate what is already known. The reports of residents are valid at face value, but do not comport with the studies by international governments, as discussed above. Dr. Alec Salt conducted an experiment involving the application of a low frequency “bias-tone” to the ears of guinea pigs (Salt, 2014). He then extrapolated (theorized) the measured effect on guinea pigs to the response we might get from a human ear. His work suggested (hypothesized) that humans might have a lower threshold of hearing at infrasonic frequencies due to the “Outer Hair Cell response.” He theorized that the threshold might be as much as 40 dB below the accepted threshold of hearing. Regardless, wind turbine infrasound is still below Salt’s theorized Outer Hair Cell response threshold. Note, to my knowledge Salt’s work has not been carried on by either him or others. In conclusion, much of the work that wind energy opponents cite only verifies what is known about the levels of infrasound, that they exist at extremely low levels; lower than the levels of infrasound produced by other sources and far lower than human hearing capabilities. Other work that they cite theorizes about potential impact to humans that academic and government researchers have been unable to verify are real (despite many attempts).
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5.
Modeling method and accuracy
Hankard Environmental analyzed long-term noise data collected at seven operating wind farms consisting of 30 individual measurement locations in the U.S. We assembled the very highest turbine-only noise levels measured at each location. These maximum levels occurred for only a few hours at each site over the course of many weeks, and in some cases, months of data collection. These maximum turbine-only noise levels were compared to the levels predicted at each location using the methodology employed to predict noise levels on practically every proposed wind turbine project in the U.S. (ISO 9613-2:1996). The results are shown in the figure below. The data confirm that the model predicts with almost perfect accuracy on average. There are times when the measured level is approximately 1 dBA over the “base” prediction, and on a few occasions 2 dBA over the base case. Thus, full compliance with the desired limit will always be achieved if one adds 2 dBA to the base predictions. This has become a commonplace method of prediction. In summary, the industry has a proven method to predict noise levels from future projects to assure compliance with applicable limits.
Figure 4: Measured Turbine-Only Noise Levels vs Predicted Noise Levels Using ISO 9613-2
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6.
Measurement Approach
To assess actual noise levels upon operation the Pierson ordinance requires the applicant to measure compliance following the ANSI S12.9 Part 3 standard. The Pierson ordinance also requires that all measurements be attended, as is specified by ANSI S12.9 Part 3. Finally, the ordinance recommends that measurements be conducted when turbines are operating fully and the atmosphere is stable. I completely agree this is an appropriate standard to follow and that noise levels during times of full turbine operation in a stable atmosphere is the case all parties want to understand. But I have conducted more than 14 compliance studies and know that a week or two of attended measurements may or may not yield enough turbine-only noise data to make a determination. We recommend, in addition to some degree of attended monitoring, leaving monitors unattended for at least one month. In the spring and fall this is adequate to capture many hours spread over many nights where the turbine-only noise level is clear. This is because during times of stable atmosphere there is often very little ground wind, and therefore little to no background noise. We recommend the ordinance be amended to reflect this approach. Again, this approach is in agreement with the spirit of the existing language which recommends compliance be determined when the turbines are producing full acoustic output but the atmosphere is stable.
7.
Measurement Intervals for Compliance Determination
The current Pierson ordinance requires noise levels be measured using 1-second time intervals. The rationale behind this is unclear, with one possible explanation being to effectively make it more difficult to permit a wind farm. There is no basis for 1-second measurements in the professional standards applied to wind projects, or in the well-established ordinances of other jurisdictions. This is a completely misguided practice for any environmental noise situation, particularly wind turbine projects. The noise standards that the ordinance should reflect, i.e., those of EPA, WHO, etc., were developed based on the results of long-term studies that measure noise and report outcomes over the course of years. These studies were conducted primarily on highways and airports, but also on railroads and industrial facilities. The measurements were conducted using one-hour and 24-hour intervals, and often these were aggregated into annual averages. The assessment of a noise source on a short time interval is reserved for highly impulsive sources, such as metal stamping, jackhammering, pile driving, and gunshots.
WHO 1999, 45 dBA at night based on 8-hour average,
WHO 2009, annual average nighttime noise level of 40 dBA,
WHO 2018, annual average of the 24-hour average (Lden).
EPA, 24-hour average (Ldn) based on annual operations of highways and airports.
IL, MN, WI: one hour
Huron: two hours
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References 1. World Health Organization (WHO), 2018, Environmental Noise Guidelines for the European Region (published in various formats) 2. Council of Canadian Academies, Understanding the Evidence: Wind Turbine Noise. Ottawa (ON): The Expert Panel on Wind Turbine Noise and Human Health, Council of Canadian Academies. (Health Canada) 2015. 3. Hessler G., Proposed Criteria for Low Frequency Noise from Combustion Turbine Power Plants. Presentation at Noise-Con, July 2004, pp 924 - 931. 4. Hessler G, Leventhall G, Schomer P, Walker B., Health effects from wind turbine low frequency noise & infrasound. Sound and Vibration. January, 2017. 5. Wind Turbine Noise and Human Health. The Government of Canada (2014). (“Health Canada”) 6. Michaud et al., Personal and situational variables associated with wind turbine noise annoyance. The Journal of the Acoustical Society of America, March 2016 (“Health Canada”) 7. Sonus, Infrasound Measurements from Wind Turbines and Other Sources, 2010 8. Baden-Wuerttemberg, Ministry for the Environment, Climate and Energy of the Federal State of Baden-Wuerttemberg, Low-frequency noise incl. infrasound from wind turbines and other sources, 2016. 9. van Kamp, I., van den Berg, F., Health Effects Related to Wind Turbine Sound, Including Low-Frequency Sound and Infrasound. Acoustics Australia 46, 31–57 (2018). 10. Pedersen, C.S., Human hearing at low frequencies with focus on noise complaints, Acoustics, Department of Electronic Systems Aalborg University, Denmark March 2008 11. Walker, B., Hessler, G., Hessler, D., Rand, R., Schomer, P. A cooperative Measurement Survey and Analysis of Low Frequency and Infrasound at the Shirley Wind Farm in Brown County Wisconsin, Public Service Commission of Wisconsin, Report Number 122412-1, 2012. 12. Maijala, P., et al., Annoyance, perception, and physiological effects of wind turbine infrasound, The Journal of the Acoustical Society of America 149, 2238 (2021) 13. Kimura, H., Momose, Y., Deguchi, H., and Nameki, M., Investigation, prediction and evaluation of wind turbine noise in Japan, Inter-Noise 2016, pp 5758-5765 14. ANSES (National Agency for Food Safety, Environment and Labor) of France, “report on the health effects of low frequency sound and infrasound due to wind farms”, April 2017
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15. Australian Medical Association (AMA, 2014), “Wind Farms and Health 2014” (AMA Position Statement), Australian Medical Association Limited ABN 37 008 426 793 16. Philippe Lepoutre, Paul Avan, Anthony Cadene, David Ecotière, Anne-Sophie Evrard, Frédérique Moati, Esko Topilla. LUBW (Germany), 2016, “Low-frequency noise incl. infrasound from wind turbines and other sources, Report on results of the measurement project 2013-2015”, www.lubw.baden-wuerttemberg.de 17. Salt, A. and Lichtenhan, J., How Does Wind Turbine Noise Affect People?, Acoustics Today, 2014.
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Attachment: Hankard Environmental's in-line comments and recommendations for the Pierson Ordinance.
TOWNSHIP OF PIERSON ORDINANCE TO AMEND ZONING ORDINANCE TO PROVIDE FOR PUBLIC UTILITY FACILITIES AND WIND ENERGY CONVERSION SYSTEMS ORD. NO. 2020-01 Amended to 2021-01 THE TOWNSHIP OF PIERSON ORDAINS: Section 1. Purpose. The Township of Pierson(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 3.24 5.05 Section 5.05 of the Zoning Ordinance is hereby amended to read as follows: Section 5.05 AG Zone: Wind Energy Zone
(a) Wind Energy Zone as adopted February 16, 2021 (1) Commercial Wind Tower construction is allowable in those areas east of Federal Rd (Northland Dr) in Pierson Township. The Special Use Application must be submitted for approval to the Pierson Township Planning Commission. (2) Private Wind Energy is allowable and determined by set-backs established by Wind Ordinance. The Special Use Application must be submitted for approval to Pierson Township Planning Commission. (b) Intent and Purpose (1) Purpose. The most common and prevalent land use in Pierson 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 1
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.
(c) 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 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: (i)
Falling ice or “ice throws” is physically harmful and measures should be taken to protect the public from the risk of “ice throws.”
(ii) 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. (iii) Sound from wind energy facilities could potentially impact people’s health and well- being 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). (iv) There is evidence that wind turbine sound is more noticeable, annoying and disturbing than other community industrial sounds at the same level of loudness. (v) People who live near wind turbines are more likely to be impacted by wind turbines 2
than would those far away.
(vi) 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. (vii) The Township desires to protect ecological and environmentally sensitive areas in the Township, 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). 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. (viii) The general welfare, health, and safety of the citizens of the Township will be promoted by the enactment of this ordinance. (d) Definitions (1) Participating Landowner: A landowner who has leased land to the WECS Applicant, received financial remuneration from the WECS Applicant, recorded with the Montcalm 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. (2) 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. (3) SCADA (supervisory control and data acquisition): A computer system that monitors and controls WECS units. (4) dBA: The A-weighted sound level. (5) dBC: The C-weighted sound level. (6) Pasquill Stability Class: Reference, wikipedia.org “Outline of air pollution dispersion”. (7) Adverse Sound Character: Sound that causes building rattle, is impulsive, tonal, or has lowfrequency bass rumble. (8) ANSI: the American National Standards Institute. (9) Audible: The varying degrees of sound perception as reported by affidavit, including, but not limited to, just perceptible, audible, clearly audible, and objectionable. 3
Decibel (dB): The practical unit of measurement for sound pressure level; the (10) 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." Emergency work: Any work or action necessary to deliver essential services in an (11) 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. Equivalent Sound Level (or Leq): The sound level measured in decibels with an (12) integrating sound level meter and averaged on an energy basis over a specific duration. Excessive noise: Sound that is determined by ordinance to be too loud or (13) unnecessary or creates a noise disturbance.
(14) Ambient: Ambient is defined as the sound pressure level exceeded 90% of the time over a 96-hour measurement period with daytime/nighttime division. (15) 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. (16) Quiet Rural or Residential property: Any property where there is an inherent expectation of quiet, including, but not limited to, all residential, business, or agriculturalzoned properties, single family homes, and retirement homes. (17) Sound level meter: An instrument for the measurement of sound levels that meets the ANSI requirements of S1.4-1983 (or later revision) for Type 1 or 2 instruments. For frequency analysis, octave and 1/3 octave filters shall conform to ANSI S1.11-1986 (or later revision). (18) GIS: Geographic Information System and is comparable to GPS (global positioning system) coordinates. (19) 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. (20)
Tip Height: The height of the turbine with a blade at the highest vertical point.
(21) Wind Energy Conversion System (WECS): Any combination of the following: (i) A mill or machine operated by wind acting on oblique vanes or sails that radiate from a horizontal shaft; (ii) A surface area such as a blade, rotor, or similar device, either variable or fixed, for 4
Commented [MH1]: The ambient noise level is that created by all non-turbine sources. It can and often is quantified using the level exceed 90 percent of the time over a stated time interval (L90).
Commented [MH2]: Not generally placed in the category of quiet.
utilizing the wind for electrical or mechanical power; (iii)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;
(iv) The generator, alternator, or another device to convert the mechanical energy of the surface area into electrical energy; (v) The tower, pylon, or other structure upon which any, all, or some combination of the above are mounted. (vi) Any other components not listed above but associated with the normal construction, operation, and maintenance of a wind energy conversion system. WECS Applicant: The person, firm, corporation, company, limited liability (22) 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.
(23) 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. (24) L10: 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. L90: Is the noise level exceeded for 90% of the time of the measurement duration (25) and is commonly used to determine ambient or background noise level.
(e) 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 19. 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 5
sooner than thirty (30) days. Providing documents without time for Planning Commission to review shall result in permit denial and require WECS applicant 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.
(f) Exempt Towers and Wind Energy Conversion Systems (WECS). Communication 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)”. However, exempt towers and WECS are subject to the following noise regulations of the Pierson Township Zoning Ordinance: Article 2, Section 2.42 and Article 3, Section 3.12. 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). (g) Commercial Wind Energy Conversion Systems (WECS). Wind energy conversion systems and WECS testing facilities, other than those exempted under section (e) “Exempt Towers and Wind Energy Conversion Systems (WECS)”, shall only be allowed as special land uses in the A-1 Exclusive Agricultural Zoning District. An application for a special land use permit shall be filed with the Township pursuant to Article 17 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: (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 in accordance with the Township Escrow Policy 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 anyreports 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 6
not limited to, electrical, acoustics, environment, economics, wildlife, health, and landuse.
(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. (i)
The Applicant shall perform pre-construction ground water testing on all wells located within the required setback distance of a proposed turbine location. The operation of the WECS shall not negatively impact any groundwater well or groundwater source in the vicinity of the WECS. Complaints regarding impact of the WESC on groundwater sources shall be promptly forwarded to the Township Board as part of the complaint resolution process. The Township Board will consider proof of a negative impact arising from the installation and/or operation of the WECS on a groundwater well or source in the vicinity of the WECS as a violation of the conditions of the special use approval.
(ii) A background (ambient) sound study shall be performed and a report provided which indicates Leq 10 minutesecond, L10, and L90 sound levels using Aweighting and C-weighting. Data shall be collected near representativeat midpoints along property lines of adjoining Non-Participating and Landowners Participatingresidences. Measurement procedures are to follow the most recent versions of ANSI S12.18 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 twoweekfour-day (96 hour) testing period, include two one Sundays, 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 19 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 requirements for a WECS site plan are as follows: (i)
Building Siting: GIS locations and height of all proposed buildings, structures, electrical lines, towers, guy wires, guy wire anchors, security fencing, and other 7
Commented [MH3]: The need for this is questioned. It is understood and agreed that wind turbine projects are often located in rural/agricultural areas, where it can be quiet particularly on calm nights. However, the ambient noise level of importance is that created by the wind blowing through trees and crops, which almost always accompanies wind turbine operation. If an ambient study is conducted, the noise level should be assessed for conditions when turbines would be operational.
above-ground structures associated with the WECS.
8
(ii) Nearby Building Siting: GIS locations and height of all adjacent buildings, structures, and above ground utilities located within three (3) two (2) 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. (iii) 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 Montcalm County Register of Deeds using only the WECS Waiver Form Revision 1 or later. (iv) Facility Security: Security measures shall be sufficient to prevent unauthorized trespass and to protect health, welfare, and safety. (v) 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 any WECS and WECS Testing Facility issues, including procedures and schedules for removal when determined to be obsolete or abandoned. (vi) 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. (vii) Proof of any applicable documents recorded at the Montcalm Country Register of Deeds utilizing Article 1522 WECS Waiver Form Revision 1 (or later). (viii) If there are any changes to any site plan for a WECS or Testing Facility, including any changes in road locations, road access, the location of accessory structure, and/or the location of any turbine, a revised site plan shall be submitted and approved prior to construction. Any revised site plan must provide revised 9
calculations to address all of the items required under the original plan submission (i.e. setbacks, shadow flicker, noise, etc.).
(ix) 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 $10,000,000 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. (6) 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 this 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. (i)
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 obtainedis two, the formula shall be (quote1 + 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 demolition companies. The demolition method shall be approved by the Township Board. 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.
(ii) 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. (iii) 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. 10
(iv) 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 seizure of Participating Landowner property(ies) will take place to cover such costs. (7) 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 non- compliant 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 a 6-month postconstruction report for the project with a schedule and documentation which adhere to the following: (i)
Chart outlining ordinance requirements and a description of compliance or noncompliance.
(ii) Declaration whether submitted data is modeled or measured. (iii) Declaration of values, test methods, data sources, and similar for all modeled or measured data. (iv) Estimated timeline for project including ordinance requirements completed, construction, post construction, and validation testing. (v) Applicant measured data shall be accompanied by SCADA data confirming full power during testing. Unless otherwise requested, minimum SCADA data format shall be provided grouped in 24hr periods and 10 minute 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. (vi) Permitting data may be submitted based on WECS manufacturer data. However, measured data from active and similar WECS facilities shall be simultaneously submitted. 11
(vii) It is acknowledged that WECS units sustain wear over time. Applicant is to submit
12
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.
(viii) Modeling (prediction) of wind turbine noise levels shall be conducted using the ISO 9613-2 method. Input parameters shall be set based on the known relationship between this method and worst-case (loudest) measured wind turbine noise levels, including: manufacturers sound emission levels corresponding to maximum acoustic output, temperature and relative humidity values providing the least attenuation, no barriers or terrain effects, a 0.5 ground factor, and 2 dBA added to the results. Noise levels shall be predicted using the Leq metric with a time interval of 10 minutes to one hour.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. (h) 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 Montcalm 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. (5) 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 3 Section 3.21 Signs and Billboards. Additional signage on and around the tower is 13
Commented [MH4]: There is no significant evidence that wind turbine noise increases over time. Suggest striking this.
recommended. The sign shall contain at least the following:
(i)
Warning high voltage.
(ii) Participating land owner’s name, WECS owner’s name, and operator’s name. (iii) Emergency telephone numbers and web address. (list more than one number).
14
(iv) If WECS uses fencing, place signs on the perimeter fence at fence entrance door. (v) 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 section (g)(25). (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 shallbe a minimum of 6ft below grade, be deeper than drain tile and be in compliance with NEC 2014 or newer Code standards. All utility lines shall be staked in the field, so as to provide notice to property owners as to the location of utilities, including installing a marker at 4-feet below-grade to identify the utility line location. 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: The Applicant shall post a financial security in the form of a surety bond from a surety company that is listed as an acceptable surety on Federal Surety Bonds in circular 570 of the U.S. Department of Treasury, or letter of credit from, or an escrow account established in, a financial institution licensed in the State of Michigan for the cost of repairs of Montcalm County roads within the Township, in an amount of $1,250,000. The amount and standards for road repair work shall be determined by a third party road inspector appointed by mutual agreement of the Township, Applicant and Montcalm County Road Commission. The bond shall only be released (in whole or in part) when the Township Board, in consultation with the Montcalm County Road Commission and said third party inspector, determines that all required road work has been completed and approved by the road inspector in consultation with the Montcalm County Road Commission and/or MDOT. The Township may consult with the third party road inspector to verify the proposed bond amount of $1,250,000. If the third party inspector determines that the amount needed for road repairs and upgrades is higher, the Applicant will post a financial security in the amount determined by the third party inspector. All road repairs must be complete within ninety (90) days of project completion, or maintenance completion, but shall not exceed 365 days from project commencement or maintenance completion. 15
(10) Road Use Agreement: The Applicant shall provide and execute a Road Use Agreement with the Township and shall file a copy of such Agreement with the Township Clerk before construction of any accessory road and/or road improvements. The Road Use Agreement is subject to review and approval of the Township attorney. The Applicant shall provide a written status report annually to the Township Board as to the ongoing scope of road work and shall also provide written notice to the Township Board when all required road work has been completed. The Township may require the renewal of the bond for road work to cover costs of road work to be completed in the future. (11) 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. (12) 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. (13) 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. Documents in full shall be recorded using only the WECS Waiver Form Revision 1 or later, with the Montcalm County Register of Deeds. Each wind turbine shall also use a shadow flicker mitigation system, including but not limited to the Vestas Shadow Detection System, or other similar system. (14) Ice Detection: The Applicant shall install an ice detection system on each turbine, including but not limited to the system developed by Vestas, or other similar system, to monitor ice formation on each wind turbine (WECS) and to facilitate immediate shutdown of any wind turbine if ice is detected on the turbine. (15) Fire Suppression: The Applicant shall provide and install on an WECS a fire suppression system, including but not limited to Fire Trace or other similar system, and insure that such system is operable at all times. (16) Voltage: The Applicant shall demonstrate WECS prohibits stray voltage, surge voltage, and power from entering ground, and shall correct any voltage issued that is caused by the WECS. (17) 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. (18) 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 16
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 removing the caisson and all other components in their entirety. Restoration must be completed within 365 days of non-operation. The Planning Commission can grant an extension of one hundred eighty (180) days upon the WECS owner demonstrating that an extension is necessary.
(i)
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 Montcalm County Register of Deeds waiving these requirements.
(19) WECS Height: The maximum Tip Height of any WECS or WECS Testing Facility shall not exceed 500 ft. (20) Avian Protection: Each wind turbine shall have a bird/bat sensor installed and utilized upon it. (21) Post-Construction Studies: The applicant shall prepare a post-construction avian and wildlife study 1-year post-construction, as well as 5-years post-construction of the completion of a WECS, which shall comply with the requirements of the U.S. Fish and Wildlife Service and the Michigan Department of Natural Resources. A copy of the study shall be provided to the Township Board. (22) Post-Construction Documents: The Applicant shall provide a complete set of as built drawings for electrical structures, collection lines and surface markings to the Township Clerk within 6 months of completing work on the WECS. (23) Operations Training: The Applicant shall provide training for the Village of Howard City and/or Village of Sand Lake Fire Department(s) on behalf of Pierson Township and all fire departments that provide mutual aid to Pierson Township before beginning operations of the Utility Grid Wind Energy System and shall likewise provide regular training at least annually thereafter. The Applicant shall report annually to the Township Board as to the status of the training of the Township Fire Department, in addition to reporting annually to the Township Board of any incidents that required response by the Fire Department (or any Fire Departments responding via mutual aid) to the WECS. (24) 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. (25) Complaint Resolution: A complaint resolution process shall be established by the 17
township. The form shall be, but not limited to:
(i)
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. Upon receiving a complaint, the Township shall forward said complaint to the WECS owner.
(ii) Investigation of Complaints: Township shall initiate an investigation into a complaint within sixty (60) days utilizing escrow funds to hire the appropriate expert(s). (iii) Hearing of Complaints: Township Board shall set a public 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. (iv) Decision of Complaints: Township Board shall issue a decision and corrective actions within forty-five (45) days from Hearing of Complaints. (26) 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 Pierson 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. (27) 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 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. (28) The Township Board reserves the right to require WECS Applicant to shut down any WECS unit that does not meet ordinance requirements until such WECS unit meets ordinance requirements or is removed. (29) 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 1 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 18
to exceed $100/request. Residents shall have the right to also request SCADA data in at least the minimum format at the cost of $200/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”.
(30) Noise: (i)
No WECS shall generate or permit to be generated audible noise from commercial or industrial permitted facilities that exceeds 4539 dBA or 6549 dBC, as modeled or measured using the Leq metric (interval of 10-minutes to one-hour) (dBC to dBA ratio of 10 dB per ANSI standard S12.9 Part 4 Annex D) during the night 9 pm to 8 am for any duration, at a property line or any point within a Non-Participating residenceproperty, 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 Montcalm 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 Montcalm County Register of Deeds.
(ii) 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 8 am to 9 pm for any duration, at a property line or at 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 Montcalm 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 Montcalm County Register of Deeds. (iii) 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 any point within a Non-Participating Landowner’s property. (iv) 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. (v) A tonal noise condition generated from commercial or industrial permitted facilities 19
Commented [MH5]: Not needed.
Commented [MH6]: Not needed – no scientific basis for this.
Commented [MH7]: Not needed – no scientific basis for this.
shall be assessed an upward noise penalty of 5 dBA (example 42 increased to 47
20
dBA) for assessment to the nighttime and daytime noise limits.
(vi) A noise level measurement made in accordance with methods in section “NOISE MEASUREMENT AND COMPLIANCE” that is higher than 4539 dBA or 6549 dBC during the nighttime hours or 45 dBA 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. (vii) 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.
Commented [MH8]: Ok to keep, but wind turbines have never been shown to be tonal. They are the opposite, a broadband source of sound.
Commented [MH9]: Not needed – no scientific basis for this.
(viii) All commercial and industrial activity shall comply with limits and restrictions anywhere at any time as measured at any Non-participating residenceon 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 Montcalm 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 Montcalm County Register of Deeds. (ix) Leq 1-hoursec shall be used for all measurements and modeling. Measurements shall be conducted using both 10-second and 10-minute time intervals, per ANSI S12.9 Part 3. (31) Pierson Township and its representatives shall have the authority to inspect the WECS (any of the wind turbines, the roads and/or accessory structures) upon reasonable notice of at least 24 hours to the Applicant. The Applicant may require that a representative of the Applicant accompany the Township and/or its representatives on any inspection. (32) The Applicant shall enter a Host Agreement with Pierson Township regarding taxation. (i) Noise Measurement and Compliance (1) 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 Pierson 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 ANSIS12.100 3.11. The ANS-weighted sound level is obtained by eliminating values 21
Commented [MH10]: The only condition that really matters is the loudest condition, which occurs when all nearby turbines are producing full acoustic emissions (hubheight wind speed of approximately 10 m/s or greater).
Commented [MH11]: This poses a great number of challenges. A mix of attended and unattended monitoring is recommended.
for octave bands above 1000 Hz, or one-third octave bands above 1250 Hz, and Aweighting and summing the remaining lower frequency bands. The wind velocity at the
22
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.
(3) 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, Aweighting, 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 high- frequency 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 and a 10-second and 10-minute time intervalat a sample rate of 1- per- second. 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 shallapply to dBA, dBC and unweighted 1/3 octave band measurements. (5)(6) Compliance determination: The measured data shall be analyzed to obtain the turbine-only noise level measured under worst-case conditions (turbines fully operational, atmosphere conducive to sound propagation). Determine Leq of all valid turbine-only samples and compare to noise limits. (6)(7) 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 1per-second sampling, a 5-minute-or-longer graph shall be produced. For 10-per-second sampling, a30- 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 occurring during testing. (j) Compliance (1) All applicable requirements of the Zoning Ordinance must be met in their entirety as well as all other applicable laws, ordinances, and rules of the federal, state, county, and township governments. Any subsequent development or change on the property shall comply with all requirements of the Township Zoning Ordinance or other ordinances 23
Formatted: Font: 12 pt Formatted: Justified, Indent: Left: 0.53", Hanging: 0.28", Right: 0", Space Before: 0 pt, No bullets or numbering, Tab stops: Not at 0.73"
and regulations in effect at that time. 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.
24
(3) Nuisance compliance complaints shall be resolved after section “Complaint Resolution” is completed. Applicant shall provide resolution plan within 30 days and resolve complaint 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 Ordinance Number 2012-02. 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 30 days including, but not limited to, legal proof of change, corporate legal contact, security bond updates, emergency contact, and local contact. Section 3. 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 4. Repealer. 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 5. Effective Date. This Ordinance shall be published and take effect seven days after publication as provided by law. The undersigned Clerk of the Pierson Township hereby certify that this Zoning Ordinance Amendment was duly adopted by the Township Board at a meeting held on the 20th day of October 20, 2020 and was published in the River Valley News on the day of October, 2020. This Zoning Ordinance Amendment shall take effect seven (7) days after said date of publication.
Sara Burkholder, Township Clerk
25
The undersigned Clerk of the Pierson Township hereby certify that this Zoning Ordinance Amendment 2020-01 was amended correcting Section 3.24 to Section 5.05 by the Township Board at a meeting held on the 17th day of November, 2020.
Sara Burkholder, Township Clerk
The undersigned Clerk of the Pierson Township hereby certify that this Zoning Ordinance was amended to 2021-01 to add “Wind Energy Zones” by motion at a meeting held by the Township Board on the 16th day of February 2021.
Sara Burkholder, Township Clerk
26
Michigan State University Extension Land Use Series
Sample Zoning for Wind Energy Systems Original version: March 6, 2017 Last revised: October 6, 20201 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 Purpose and Use of Sample Zoning ................................................................................................................................. 2 Due Process ..............................................................................................................................................................................3 Related Case Law ................................................................................................................................................................ 10 Public Acceptance Factors Related to Wind Energy Development ......................................................................11 Towards a Better Process .................................................................................................................................................. 15 Sample Zoning Amendments for Wind Energy Systems ................................................................................... 17 Authors .................................................................................................................................................................................. 35 Appendix A: 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
1 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.
Michigan State University Extension Land Use Series
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.2 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 (EIA), Michigan State Profile Estimates (2020). https://www.eia.gov/state/analysis.php?sid=MI 3
Michigan Department of Environment, Great Lakes, and Energy (EGLE), Office of Climate and Energy, Zoning for Renewable Energy Database (2019). https://www.michigan.gov/climateandenergy/0,4580,7-364--519951--,00.html Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 2 of 49
Michigan State University Extension Land Use Series 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,4 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.5 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
4
U.S. Const., amend. V.; Michigan Const. of 1963, Art. I, §17.
5 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
Cornell Law School. (n.d.). Procedural due process. In Legal Information Institute’s Wex. Retrieved September 3, 2020, from https://www.law.cornell.edu/wex/procedural_due_process Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 3 of 49
Michigan State University Extension Land Use Series 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.7 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
US Const. amend. I. Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 4 of 49
Michigan State University Extension Land Use Series 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 Master Plan. https://www.gogrowgratiot.org/uploads/9/5/3/0/9530559/final_gratiot_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.pdf 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. Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 5 of 49
Michigan State University Extension Land Use Series 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.10 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 2025 11). 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.12 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.13 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 10 Michigan
Zoning Enabling Act. Mich. Comp. Laws. 125.3207 (2006). http://legislature.mi.gov/doc.aspx?mcl-125-3207
11 Michigan
Clean, Reliable, and Efficient Energy Act. Mich. Compl. Laws (PA 342 of 2016). Amends Act 295 of 2008. http://legislature.mi.gov/doc.aspx?mcl-460-1001 12
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 §2. 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 2d 322 (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/property_taking_types_and_analysis Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 6 of 49
Michigan State University Extension Land Use Series 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.15 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
14
Palazzolo v. Rhode Island, 533 U.S. 606 (2001)
15 U.S.
Const, amend. IV.
16
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 Cady v Detroit, 289 Mich 499, 515; 286 NW 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 v 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, L.L.C. v. Township of Bengal Michigan Court of Appeals (Unpublished, No. 319134, December 4, 2014), the court expressed a jurisdictional hierarchy as follows: Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 7 of 49
Michigan State University Extension Land Use Series 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.18 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.edu/news/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.mi.gov/doc.aspx?mcl-125-3210
19 Michigan
Zoning Enabling Act. Mich. Comp. Laws. 125.3209 (2006). http://legislature.mi.gov/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/sample_1e_bylaws_for_a_planning_commission Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 8 of 49
Michigan State University Extension Land Use Series 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 “I'm 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://legislature.mi.gov/doc.aspx?mcl-125-3504
Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 9 of 49
Michigan State University Extension Land Use Series 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 precedential value.22 In Tuscola Wind III, LLC v. 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, L90) 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 III, LLC v. Ellington Township et 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.
22 The
March/April 2020 issue of Planning & Zoning News reviews several Michigan court cases involving wind energy. Copies can be ordered at: http://pznews.net/. Tuscola Wind III, LLC v. Almer Charter Twp., 327 F. Supp. 3d 1028 (E.D. Mich. 2018) U.S. District Court, Eastern District of MI, Northern Division 23
24
Tuscola Wind III, LLC v. Ellington Twp., Case No. 17-cv-11025 (E.D. Mich. Jul. 27, 2018) U.S. District Court, Eastern District of MI, Northern Division 25 The
6th Circuit Court of Appeals takes the position that the doctrine of stare decisis makes a federal district court 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: https://www.gpo.gov/fdsys/pkg/USCOURTS-mied-1_17-cv-10497/pdf/USCOURTS-mied-1_17-cv-10497-1.pdf. Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 10 of 49
Michigan State University Extension Land Use Series 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. 31 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
Ansell v. Delta County Planning Comm'n, 2020 Mich. App. LEXIS 3688, 2020 WL 3005856 (Court of Appeals of Michigan June 4, 2020, Decided) 27
Ansell v. Delta Cnty. Planning Comm'n, p. 5
28
Olsen v. Jude & Reed, LLC, 325 Mich. App. 170, 924 N.W.2d 889 (Mich. Ct. App. 2018)
29 Ansell v. Delta Cnty. Planning Comm'n,
p. 5
30 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. Compl. Laws (PA 246 of 1945). http://legislature.mi.gov/doc.aspx?mcl-Act-246-of-1945
32 Fournis,
Y. & Fortin, M.J. (2017). From social ‘acceptance’ to social ‘acceptability’ of wind energy projects: Towards a territorial perspective. Journal of Environmental Planning and Management, 60(1), 1-21. https://doi.org/10.1080/09640568.2015.1133406. Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 11 of 49
Michigan State University Extension Land Use Series 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.36 and a study of Michigan windfarms by Mills et al.37 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.38 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 & Social Science, 29, 135-148. https://doi.org/10.1016/j.erss.2017.05.019 34
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://doi.org/10.1016/j.erss.2017.05.019 35 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.enpol.2013.10.055 36
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.org/10.1080/1523908X.2017.1418656 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://doi.org/10.1016/j.landusepol.2019.01.010 38 Haac, T.R., Kaliski, K., Landis, M., Hoen, B., Rand, J., Firestone, J., Elliott, D., Hübner, 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 of America, 146, 1124-1141. https://doi.org/10.1121/1.5121309 Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 12 of 49
Michigan State University Extension Land Use Series 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.39 Recent research, for example, found more opposition to wind energy in landscapes that are national parks or other protected areas.40 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.
39 Devine-Wright,
P. (2009). Rethinking NIMBYism: The Role of Place Attachment and Place Identity in Explaining Placeprotective Action. Journal of Community & Applied Social Psychology, 19, 426–441. https://doi.org/10.1002/casp.1004 40 Giordono,
L.S., 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.org/10.1016/j.erss.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. Center for Local, State, and Urban Policy, Ford School of Public Policy, University of Michigan. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2652865 42 Fergen,
J. & Jacquet, J. (2016). Beauty in motion: Expectations, attitudes, and values of wind energy development in the rural U.S. Energy Research & Social Science, 11, 133–141. http://dx.doi.org/10.1016/j.erss.2015.09.003 43 Mulvaney,
K.K., Woodson, P., & Stalker Prokopy, L. (2013). A tale of three counties: Understanding wind development in the rural Midwestern United States. Energy Policy, 56, 322-330. https://doi.org/10.1016/j.enpol.2012.12.064 Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 13 of 49
Michigan State University Extension Land Use Series 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.44 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 In 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.48 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. 49 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. https://awwi.org/wpcontent/uploads/2017/07/AWWI-Wind-Wildlife-Interactions-Summary-June-2017.pdf 45 Zimmerling,
J., Pomeroy, A., d'Entremont, M., & Francis, C. (2013). Canadian estimate of bird mortality due to collisions and direct habitat loss associated with wind turbine developments. Avian Conservation 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/10.1016/j.renene.2012.01.074 47
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://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.landusepol.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.org/10.1016/j.landusepol.2019.01.010 Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 14 of 49
Michigan State University Extension Land Use Series 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. 50 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).51 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).53
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
50 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.org/10.1080/1523908X.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.org/10.1016/j.enpol.2013.03.010 52 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://doi.org/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. http://dx.doi.org/10.1016/j.enpol.2015.02.008 54
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.edu/ncrcrd/webinars/chronological_archive/index Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 15 of 49
Michigan State University Extension Land Use Series 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 submitted.56 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
55 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., early John Deere wind energy projects in Huron County and other developers in Gratiot County, Michigan. 56
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_is_the_worst_way_to_involve_the_public Before settling for a public hearing, consider the continuum of public involvement: https://www.canr.msu.edu/news/before_settling_for_a_public_hearing_consider_the_continuum_of_public_invol Increasing public participation in the planning process: https://www.canr.msu.edu/news/increasing_public_participation_in_the_planning_process Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 16 of 49
Michigan State University Extension Land Use Series a “Lessons Learned” document from the first decade of wind development in Michigan. 57 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. Ex parte 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 57
Wind Energy Stakeholder Committee. (2018 January). Lessons Learned: Community Engagement for Wind Energy Development in Michigan, Wind Energy Stakeholder Committee (WESC). https://static1.squarespace.com/static/564236bce4b00b392cc6131d/t/5a848c6771c10b7697cb6c50/1518636136391/Lessons+Le arned_WESC+Report_Final.pdf Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 17 of 49
Michigan State University Extension Land Use Series 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 Use Series: "Checklist # 458: For Adoption of a Zoning Ordinance Amendment (including some PUDs) 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 a common 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 Extension. https://www.canr.msu.edu/resources/check_list_4_for_adoption_of_a_zoning_ordinance_amendment_including_some_pu 59 Also
see MSU Extension article “Amending a zoning ordinance requires adopting an ordinance” at: https://www.canr.msu.edu/news/amending_a_zoning_ordinance_requires_adopting_an_ordinance Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 18 of 49
Michigan State University Extension Land Use Series
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 50361 (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 Huron
County. (n.d.) Wind Facility Overlay District Zoning. Retrieved September 3, 2020 from https://www.dropbox.com/s/37850k50b328cct/Wind%20Energy%20Facility%20Overlay%20Zoning%20Revised%20Ordia nce.pdf?dl=0 61 This
number system comes from the MSU Extension zoning ordinance codification system found here: https://www.canr.msu.edu/resources/organization_and_codification_of_a_zoning_ordinance. A community should stick to their own numbering system. Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 19 of 49
Michigan State University Extension Land Use Series 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. IEC 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 Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 20 of 49
Michigan State University Extension Land Use Series PARTICIPATING PARCEL means one or more parcels under a lease or easement for development of a utility-scale WES62. 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 Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 21 of 49
Michigan State University Extension Land Use Series General Provisions (On-Site WES/Temporary Towers) Add to Article 10 subpart 107 (on-site WES) and 108 (Temporary towers)63 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: 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] Height: Total height for on-site WES shall not exceed ___ [for example: 66, 90, or 120] feet. On-Site System Exception: On-site WES mounted to existing structures (such as a roof or pole) that extend ___ [for example: 8] feet or less above the highest point of the structure are exempt from this zoning ordinance. Property Setback: The horizontal distance between the base of an on-site WES and the owner’s property lines shall be no less than ___ [for example: 1.1] times height. No part of the WES 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.
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] Sound Pressure Level: The audible sound from an on-site WES shall not exceed ___ dBA L__ (_minute) at the ___ [for example: property line or dwelling] closest to the WES. 63
This number system shown here comes from the MSU Extension zoning ordinance codification system found here: https://www.canr.msu.edu/resources/organization_and_codification_of_a_zoning_ordinance. A community should stick to their own numbering system. Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 22 of 49
Michigan State University Extension Land Use Series Commentary: For example (above) the audible sound from an on-site WES shall not exceed 45 dBA Leq (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] 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. 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 et seq.), the Michigan Tall Structures Act (Public Act 259 of 1959, MCL 259.481 et 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] 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. Ground Clearance: The minimum vertical blade tip clearance from grade shall be ___ [for example: 20] feet for a horizontal axis wind turbine64. 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 et seq.), the
64
Rynne, S., Flowers, L., Lantz, E., & Heller, E. (ed.) (2011). Planning for Wind Energy. American Planning Association, Planning Advisory Service Report Number, 566. https://www.planning.org/publications/report/9026890/ Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 23 of 49
Michigan State University Extension Land Use Series 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 application65. [End of commentary]
65 Resolution
Approving Utility Grid Wind Energy System, Special Land Use, Part B (12) Impacts on Bird and Bat Species; Study Required, https://www.masoncounty.net/departments/zoning/lake-winds-energy-park.html Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 24 of 49
Michigan State University Extension Land Use Series 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). Setbacks: 1. An Anemometer Tower shall be setback a distance equal to ___ [for example: 1.1] times height from a property line or road right-of-way. 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: i.
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: 1,100 feet or 2.5 times height (something less than 2. ii above) from the [property line] or [dwelling];
Commentary: Setback to property line or dwelling: 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. 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: Wind 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.
Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 25 of 49
Michigan State University Extension Land Use Series 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 common66. 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)67. 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. Height: WES are not subject to height limitations found in Section ___ [this is the height standard 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] 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. 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. Sound Pressure Level: The sound pressure level shall not exceed the following: 1. Non-participating property: Sound from a WES shall not exceed ___ dBA L_ (_-minute) measured at the ___ [dwelling] or [property line] of a non-participating property. If the average 66Summary
of Wind Energy Policies by Country (2012) Minnesota Environmental Review of Energy Projects, Minnesota Department of Commerce, https://mn.gov/eera/ 67
Ontario Environmental and Energy. (n.d.). Chapter 3: Required setbacks for wind turbines. In Technical Guide to Renewable Energy Approvals. https://www.ontario.ca/document/technical-guide-renewable-energy-approvals/required-setback-windturbines# Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 26 of 49
Michigan State University Extension Land Use Series background sound pressure level exceeds ___ dBA 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_ (_-minute) measured at the ___ [dwelling] or [property line] of a participating property. If the average background sound pressure level exceeds ___ dBA 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.
Commentary: 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 Database68. [End of commentary] 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 falling ice. The minimum vertical blade tip clearance from grade shall be ___ [for example: 20] feet for a WES employing a horizontal axis rotor. 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
68 Michigan
Department of Energy, Great Lakes, and Environment. (2019). Michigan Zoning Database (April 1, 2019) [Data set]. https://www.michigan.gov/climateandenergy/0,4580,7-364--519951--,00.html Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 27 of 49
Michigan State University Extension Land Use Series i.
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: i.
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 et seq.)
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.
Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 28 of 49
Michigan State University Extension Land Use Series Commentary: Wind turbines do kill birds in some areas, but they are not a major contributor to bird mortality69. 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).70 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).71 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] 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] 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. 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.
69 Breining,
Greg (2020) Power or Prairie? It doesn’t have to be an either/or. Living Bird, Cornell Lab of Ornithology. 65.
70 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.fws.gov/ecological-services/es-library/pdfs/WEG_final.pdf 72 Avian
Power Line Interaction Committee & US Fish and Wildlife Service. (2005). Avian Protection Plan (APP) Guidelines. https://www.aplic.org/uploads/files/2634/APPguidelines_final-draft_Aprl2005.pdf Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 29 of 49
Michigan State University Extension Land Use Series 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 1st Amendment.73 [End of commentary] 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 ___ hours/year of shadow flicker on an inhabited structure; or 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, FAA Lighting for more information on Shadow Flicker. [End of commentary] 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. 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 be 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, et al v. Town of Gilbert, AZ et al., 135 S. Ct. 2218, 576 U.S. ___ (2015) Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 30 of 49
Michigan State University Extension Land Use Series 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. 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. 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, 3.The _______ [local unit of government] reserves the right to approve, deny, or modify an application 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 projects74 constructed in the late 1990s or early 2000s are being repowered with new wind turbines75. 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 use 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]
74
Minnesota Department of Commerce. (n.d.) Wind Turbines, Open Projects. Environmental Review of Energy Projects. Retrieved September 3, 2020 from https://mn.gov/commerce/energyfacilities/#turbine 75 Minnesota
Department of Commerce. (n.d.) Jeffers Wind Repowering Project. Environmental Review of Energy Projects. Retrieved September 3, 2020 from https://mn.gov/eera/web/project/13517/ Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 31 of 49
Michigan State University Extension Land Use Series 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 be 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 be 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: 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 Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 32 of 49
Michigan State University Extension Land Use Series 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. 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 IEC 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 dBA intervals. With the use of GIS both sound and flicker maps can be overlaid on a parcel layer map and shared with the public. [End of commentary]
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. 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. 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. 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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Michigan State University Extension Land Use Series 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. 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] Decommissioning Plan: A decommissioning plan shall be included in the site plan application. 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/WES 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]
Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 34 of 49
Michigan State University Extension Land Use Series
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 Sustainability 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: https://www.canr.msu.edu/outreach/experts/. MSU is an affirmative-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 orientation, marital status, family status or veteran status. Issued in furtherance of MSU Extension work, acts of May 8 and June 30, 1914, in cooperation with the U.S. Department of Agriculture. Jeffrey W. Dwyer, Director, MSU Extension, East Lansing, MI 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 clover with stem and the H on each leaflet are protected under Title 18 USC 707.
Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 35 of 49
Michigan State University Extension Land Use Series
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 dBC scale in regulation as the C-scale is better suited to measure low frequency sound. Communities that desire to regulate with the dBC 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.77 76
Hessler, D. (2011). Best Practice Guidelines for Assessing Sound Emissions from Proposed Wind Farms and Measuring Performance of Completed Projects. Minnesota Public Utilities Commission. https://www.michigan.gov/documents/energy/MLUI9_NARUC_420200_7.pdf 77
U.S. Environmental Protection Agency. 1978. Protective Noise Levels: Condensed Version of EPA Levels Document. https://nepis.epa.gov/Exe/ZyNET.exe/20012HG5.TXT?ZyActionD=ZyDocument&Client=EPA&Index=1976+Thru+1980&Do Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 36 of 49
Michigan State University Extension Land Use Series 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).79 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).80 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.81 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 recommendation83 of 45 dBA (Lden) 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=&Query=&Time=&EndTime=&SearchMethod=1&TocRestrict=n&Toc=&TocEntry=&QField=&QFieldYear=&QFieldMo nth=&QFieldDay=&IntQFieldOp=0&ExtQFieldOp=0&XmlQuery=&File=D%3A%5Czyfiles%5CIndex%20Data%5C76thru8 0%5CTxt%5C00000008%5C20012HG5.txt&User=ANONYMOUS&Password=anonymous&SortMethod=h%7C&MaximumDocuments=1&FuzzyDegree=0&ImageQuality=r75g8/r75g8/x150y150g16/i425&Display=hpfr&DefSeekPage=x& SearchBack=ZyActionL&Back=ZyActionS&BackDesc=Results%20page&MaximumPages=1&ZyEntry=1&SeekPage=x&ZyP URL 78 Michaud,
D.S., Keith, S.E., Feder, K. & Voicescu, S.A. (2016). Personal and situational variables associated with wind turbine noise annoyance. Journal of the Acoustical Society of America, 139(3), 1455-1466. https://doi.org/10.1121/1.4942390 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/10.1121/1.5121309 80 Health
Canada. (2014 May 10). Wind Turbine Noise. https://www.canada.ca/en/health-canada/services/health-riskssafety/radiation/everyday-things-emit-radiation/wind-turbine-noise.html 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/10.1121/1.4942391 . 82 Michaud,
D.S., Feder, K., Keith, S.E., & Voicescu, S.A. (2016). Personal and situational variables associated with wind turbine noise annoyance. Journal of the Acoustical Society of America, 139(3), 1455-1466. https://doi.org/10.1121/1.4942390 83 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/publications/abstracts/environmental-noiseguidelines-for-the-european-region-2018 Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 37 of 49
Michigan State University Extension Land Use Series 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 Canada84 study. Sound descriptors are the way in which sound is quantified, analyzed, and described. Leq and L50 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 Leq 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 (Leq, Lden, or Lnight,outside which is the Leq 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. Almer Charter Township.85
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. L10 is the sound level that is exceeded 10% of the time. For 10% of the time, the noise has a sound pressure level above L10 L50 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. Ldn 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) Lden 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 84
Health Canada. (2014). Wind Turbine Noise and Health Study. https://www.canada.ca/en/health-canada/services/health-riskssafety/radiation/everyday-things-emit-radiation/wind-turbine-noise/wind-turbine-noise-health-study-summaryresults.html 85 Tuscola Wind III, LLC, v. Almer Charter Township, et al, US
District Court, Eastern District of MI, Norther Division, Case No. 17-
cv-11025 (2018) Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 38 of 49
Michigan State University Extension Land Use Series penalty is added to evening noise (7pm to 10pm). Lmax means the maximum sound pressure level associated with an individual noise event. Lnight,outside 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, Leq 1 hour is the average noise level over one hour. See: https://www.fhwa.dot.gov/Environment/noise/resources/fhwahep17053.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. 86 Mason County is another example approach.87 Wind turbine noise measurement for compliance purposes is a highly sophisticated endeavor requiring 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 curtilage88 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 86
Huron County. (n.d.) Wind Facility Overlay District Zoning. Retrieved September 3, 2020 from https://www.dropbox.com/s/37850k50b328cct/Wind%20Energy%20Facility%20Overlay%20Zoning%20Revised%20Ordia nce.pdf?dl=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.masoncounty.net/userfiles/filemanager/1494/ 88 Curtilage
means the land immediately surrounding a house including any closely associated buildings or structures.
Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 39 of 49
Michigan State University Extension Land Use Series 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 outcome89. 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.91 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 Leq) 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
89 World
Health Organization. “Environmental Noise Guidelines for the European Region.” 2018. (p. 85) http://www.euro.who.int/en/publications/abstracts/environmental-noise-guidelines-for-the-european-region-2018 90 Resource
Systems Group. (2016) Massachusetts Study on Wind Turbine Acoustics. Massachusetts Clean Energy Center and Massachusetts Department of Environmental Protection. Retrieved September 3, 2020 from https://tethys.pnnl.gov/sites/default/files/publications/RSG-2016-Report.pdf 91 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. Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 40 of 49
Michigan State University Extension Land Use Series 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 dBA in the quietest areas to 55+ dBA 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 dB94. 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.
92 Massachusetts
Department of Environmental Protection, 310 CMR 7.10. https://www.sec.state.ma.us/reg_pub/pdf/300/310007a.pdf 93 Keith,
S.E., Feder, K. Voicescu, S.A., & Soukhovtsev, V. (2016). Wind turbine sound power measurements. The Journal of the Acoustical Society of America, Volume 139(3), 1431. https://doi.org/10.1121/1.4942405 94
Ofelia J., Rosen, M.A., Naterer, G., (2011 November). Noise Pollution Prevention in Wind Turbines; Status and Recent Advances, presented at the 1st World Sustainability Forum, November 2011. Retrieved September 3, 2020 from https://sciforum.net/manuscripts/623/original.pdf Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 41 of 49
Michigan State University Extension Land Use Series
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.
Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 42 of 49
Michigan State University Extension Land Use Series TABLE 1: Utility Scale Wind Energy Zoning Regulation Comparison in Michigan95 Jurisdiction
Type
Setback to participating parcel
Setback to nonparticipating parcel
Setback to ROW
Sound maximum
Gratiot 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 dBA non participating (day/night); 45 dBA day, 50 dBA night (10 pm to 7 am) for participating (Leq 10-minute)
Isabella County*
SLU
2 X height or 1,000 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 County**
SLU
3 X height to inhabited structure
4 X height to property line
1.5 X height
45 dBA for non-participating property line; 55 dBA to participating inhabited structure (Leq 10-minute)
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 dBA participating / 35 dBA non-participating
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 dB(C) Leq 1-second) on any non-participating property (with waiver option)
Long Lake Township
SLU
2 X height to property line and 1.25 X height to inhabited structure (max height 199 feet)
2 X height to property line (max height 199 feet)
2 X height
10 decibels over ambient baseline sound level at the property line
Riga 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 height
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. 95
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.
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Michigan State University Extension Land Use Series 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 dBA 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.
Illinois Pollution Control Board limits sound by octave band sound pressure levels, onehour Leq.
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 ft) for primary wind axis (typically north-south) for turbines with 78 to 100 meter rotor diameter.
250 feet
50 dBA (night) L50 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 seizures96. There may be some increased risk of seizure with smaller wind turbines that interrupt sunlight more than three times per second97. Despite the lack of health effects, shadow flicker is often cited as a public concern and can result in annoyance.
96
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://doi.org/10.1111/j.1528-1167.2008.01563.x 97
Smedley, A.R.D., Webb, A.R., Wilkins, A.J. (2010). Potential of wind turbines to elicit seizures under various meteorological conditions. Epilepsia, 51(7), 1146-1151. https://doi.org/10.1111/j.1528-1167.2009.02402.x Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 44 of 49
Michigan State University Extension Land Use Series 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 present98. 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 flicker100. 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 flicker.101 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 systems102, 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 98
99 WEA-Schattenwurf-Hinweise
(German).
100
Update of UK Shadow Flicker Evidence Base, Department of Energy and Climate Change (2010); p.14. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/48052/1416-update-ukshadow-flicker-evidence-base.pdf 101 Haugen,
International Review; p. 6.
102 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 Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 45 of 49
Michigan State University Extension Land Use Series 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).103 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
103 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://doi.org/10.1016/j.rser.2012.02.041. 104
US Department of Transportation. (2015). Federal Aviation Administration, Advisory Circular No: 70/7460-1L, Obstruction Marking and Lighting. Retrieved September 3, 2020 from https://www.faa.gov/documentlibrary/media/advisory_circular/ac_70_7460-1l_.pdf Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 46 of 49
Michigan State University Extension Land Use Series
Appendix D: Summary of Michigan-Specific Wind Energy Research and Information The Michigan Office of Climate and Energy105 maintains resources on wind energy, as well as Michigan Wind Energy Resource Maps prepared by the U.S. Department of Energy.106 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 http://ageconsearch.umn.edu/bitstream/6132/2/470566.pdf Adelaja, S., Hailu,Y.G., Warbach, J., Klepinger, 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.107 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. Center for Local, State, and Urban Policy, Ford School of Public Policy, University of Michigan. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2652865 Bidwell, D. (2016). The effects of information on public attitudes toward renewable energy. Environment and Behavior, 48(6), 743-768. https://doi.org/10.1177/0013916514554696 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.2013.03.010 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.enpol.2013.10.055 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-alternativeenergy#per1 Michigan State University Land Policy Institute. Renewable Energy Policy Program. 2007-2013 Archive. Accessed April 2020: https://www.canr.msu.edu/landpolicy/programarchive/renewable_energy_policy_program/ Mills, S. (2015 January). Farming the Wind: The impact of wind energy on Farming – Summary Survey Results. Center for Local, State, and Urban Policy, Ford School of Public Policy, University of Michigan. Retrieved April 2020: http://closup.umich.edu/wind/farming-the-wind-the-impact-ofwind-energy-on-farming.php Mills, S. (February 2017). “Views of Wind Development from Michigan’s Windfarm Communities – Landowner Survey Summary.” Center for Local, State, and Urban Policy, Ford School of Public Policy, University of Michigan. Retrieved September 3, 2020 from 105 Michigan
Department of Environment, Great Lakes, and Energy (n.d.) Office of Climate and Energy: Overview. Retrieved September 3, 2020 from https://www.michigan.gov/climateandenergy 106
Office of Energy Efficiency & Renewable Energy. (n.d.) Wind Energy in Michigan. Retrieved September 3, 2020 from https://windexchange.energy.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://www.canr.msu.edu/landpolicy/program-archive/renewable_energy_policy_program Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 47 of 49
Michigan State University Extension Land Use Series https://static1.squarespace.com/static/564236bce4b00b392cc6131d/t/575b315d9f7266050a4143a a/1465594217864/Sarah+Mills+Summary+Findings.pdf Mills, S., Horner, 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 School of Public Policy, University of Michigan. Retrieved September 3, 2020 from http://closup.umich.edu/michiganpublic-policy-survey/34/wind-power-as-a-community-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.org/10.1002/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.macalester.edu/windenergy/symposia/MISymposiumWorkshopReport.pdf 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 3 2020 from https://www.canr.msu.edu/resources/final_report_of_the_michigan_wind_energy_resource_zone _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.108 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.
108 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. Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 48 of 49
Michigan State University Extension Land Use Series
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.109 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 Mills, Jeff Smith, Brian Ross, Tyler Augst, Mike Hankard (Hankard Environmental, Inc.) (sound only).
109 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. Land Use Series: Sample Zoning for Wind Energy Systems | © Michigan State University Board of Trustees | MSU Extension | October 6, 2020 Page 49 of 49
WIND ENERGY IN MONTCALM COUNTY: A SIX MONTH STRUGGLE By Robert Scott April 20, 2021 What follows is a bullet point summary of some, but not all, of what the residents of Montcalm County have experienced over the past six months. Unless otherwise indicated, when an individual is quoted below, the quote is taken from a Greenville Daily News article. • On October 28, 2020 a member of the Sidney Township planning commission posted on the Sidney Township Facebook page that “our board is having discussions on wind turbines coming to the township. There are many people coming to talk to the board and all of them have a vested interest.” Before this, few people in our township had any idea that a new wind ordinance was under consideration. The two or three articles about wind in the Daily News went relatively unnoticed, and residents had little reason to know that something this significant was being considered. We learned from that post that the effort for the new ordinance was being driven by one member of the Sidney Township board who had already signed a lease with Apex. The very next day the Montcalm County Citizens United (MCCU) Facebook page was created in order to get the word out and encourage residents to learn more about what wind turbines would mean to our township and Montcalm County. • Members of the MCCU group soon learned that Apex had been working for almost two years in 11 townships in Montcalm County to get leases signed with area landowners and to convince township officials to adopt new or amended wind ordinances—all with little or no notice to the rest of the county. It was only after the MCCU group exposed what Apex was up to that Apex started a public campaign in support of their project including ads and guest articles in the Daily News, radio interviews, mailed fliers, grants to local non-profits and, most recently, billboards. • On November 9, 2020 the Sidney Township board held its regular monthly board meeting at Sidney Park due to COVID concerns. By then, many township residents had heard about the wind turbine proposal and were beginning to become educated about what it might mean to our township. The terms “tip height,” “shadow flicker,” “setbacks,” “decibel levels,” “infrasound,” “referendum,” and “conflict of interest” were becoming part of everyone’s vocabulary. About 120 people attended the meeting and heard Albert Jongewaard from Apex give his sales pitch for wind turbines. The township had been advised by attorneys for the MTA that the board member who had leased with Apex had a conflict of interest. On that basis, the board instructed him not to participate in the discussions about a wind ordinance or vote on its adoption. (A six part video of the November 9, 2020 Sidney Township board meeting has been posted on YouTube and can be found by searching “Sidney Twp Board Meeting 11 9 2020.” ) • After obtaining a copy of the Apex lease in January, 2021, I was able to compare what Mr. Jongewaard had said at the November 9, 2020 Sidney Township board meeting with what the lease actually provided. The discrepancies were quite significant. That resulted in my February 22, 2021 letter to the Sidney board. I presented my letter in summary form at a board meeting on March 1, 2021. A few days later my letter was posted on both the Sidney Township website and the MCCU Facebook page. Mr. Jongewaard attended that meeting and indicated that he looked forward to reading my letter and responding. Thus far, I have heard nothing from Mr. Jongewaard. Copies of my letter have also been provided to other township officials in Montcalm County. • Later in November 2020, members of the MCCU group discovered that the Douglass Township board had adopted an amended wind energy ordinance without the knowledge of most township residents. The changes were clearly designed to accommodate a wind energy company like Apex. Based on that information, township residents resolved to file a referendum petition to put the amended ordinance to a vote. While looking in the Daily News
referendum petition to put the amended ordinance to a vote. While looking in the Daily News classified section for the published notice of the amendment, members of the MCCU group came across a notice that Maple Valley Township had recently adopted a similar pro-wind ordinance, again without the knowledge of most residents. The necessary referendum petition signatures for both ordinances were easily obtained, and the petitions were filed within the 30 day deadline. Both ordinances have since been rescinded. • On November 9, 2020, the Winfield Township planning commission held a 2 ½ hour special meeting with representatives of Apex. No notice of the meeting was ever posted. The chairman was notified of that failure prior to the meeting but elected to proceed anyway in clear violation of the Open Meetings Act. Both the chairman and one other member of the planning commission have leases with Apex recorded with Montcalm County. • In mid-November 2020, members of the MCCU group discovered that Richard Karnatz, the chairman of the Montcalm Township planning commission, had signed two separate leases with Apex, covering several hundred acres. They also discovered a letter on Apex letterhead, dated November 4, 2019 which Mr. Karnatz signed as a member of the “leadership steering committee” supporting Apex’s plans. The letter was included in Apex’s sales materials and used to induce farmers to sign leases with Apex. In August, 2020, Mr. Karnatz voted with the other members of the planning commission to approve proposed amendments to the Montcalm Township wind ordinance. All of the changes were as requested by Apex and included eliminating a 400 foot turbine height limitation and measuring noise levels from occupied dwellings rather than property lines. As the result of the residents’ objections, a public hearing was never held on the amendment, and the planning commission is now in the process of reconsidering a wind ordinance amendment. In spite of being challenged for having a conflict of interest, Mr. Karnatz has refused to recuse himself from that reconsideration. However, at a March 3, 2021 meeting, Mr. Karnatz and the other planning commission members acknowledged that the township’s current wind energy ordinance is not strong enough to protect township residents and property owners. • The November 19, 2020 edition of the Daily News reported that on November 17, 2020 the Pierson Township board had adopted a new “restrictive” wind energy ordinance. Initially, there was some confusion among the MCCU members about the provisions of the ordinance. However, upon further examination, the Pierson Township ordinance was pronounced to be the “Gold Standard” in restrictive wind energy ordinances. Copies of the ordinance were sent by residents of other townships to their township officials asking that similar wind ordinances be adopted. On February 16, 2021, the Pierson Township board amended its wind energy ordinance to create a wind overlay zone to limit the construction of wind turbines to certain AG zoned areas east of Federal Road. It appeared to be an attempt to further insulate the lake areas on the west side of the township from wind development. • In December 2020 members of the MCCU group began posting township maps showing where Apex had leased properties. Those maps were based on memoranda of the leases Apex had recorded with Montcalm County as of November 23, 2020. Each post included cautionary language similar to the following: “Please remember that Apex, not our farm neighbors, is the reason we are even having to address these issues. Please do not let Apex destroy the social fabric of our community by turning on each other.” Apex has claimed that it has many more signed leases but has not recorded any more since November 23, 2020. Apex has also refused to provide members of the MCCU group with copies of the unrecorded leases or information regarding the additional leased properties. • On December 21, 2020, the Winfield Township board and planning commission held a special joint board meeting. One purpose of the meeting was to have the township’s attorney advise them on conflict of interest issues. (In addition to the two planning commission members mentioned above, the township supervisor has also signed a lease with Apex.) As part of his comments, the attorney expressed his opinion regarding the “rule of necessity,” a concept other municipal attorneys have rejected. According to the attorney, township officials who have conflicts of interest can still vote on a matter if those conflicted officials constitute a majority of the board or commission. Some members of the planning commission then questioned the attorney on this point in an apparent effort to determine how conflicted members can fall under the rule of necessity and still vote on wind issues. This did not set well with township residents.
well with township residents. • At its regular meeting on January 20, 2020, the Douglass Township planning commission discussed the anticipated public vote on the wind energy ordinance amendment that had been subject to the referendum petitions. The commission members also considered a possible moratorium on wind energy development in the township. During that discussion, the planning commission chairman said, “I haven’t signed a lease yet. But if we put a moratorium on them and Apex pulls out, who am I going to sue for the development rights I just lost? How many thousands of dollars am I going to be out with my development rights?” At an April 14, 2021, Douglass Township planning commission meeting, the wife of the chairman spoke at length in favor of wind turbine development. As part of her comments, the chairman’s wife said the following: “I apologize if I have upset anybody, but you guys need to understand, this is our retirement. We don’t have a retirement, so yes, we want to make a little bit of extra money.” Once again, this did not set well with township residents. • The Pine Township planning commission held a special meeting on February 2, 2021 to focus on its wind energy ordinance. The meeting was held in part because residents of Pine Township had been urging township officials to revise the township’s current ordinance to better protect township residents. At the meeting Mr. Jongewaard gave an approximately 40 minute presentation promoting Apex’s proposed wind project. At a subsequent board meeting on February 8, 2021, township residents asked that Kevon Martis be allowed to speak at a future board to provide a different point of view from that presented by by Apex. (Among other credentials, Mr. Martis is an MSU Certified Zoning Administrator and Citizen Planner.) The township supervisor denied that request claiming that Mr. Martis was biased. Nonetheless Pine Township later hosted a wind energy webinar by Sarah Mills, a planner and researcher from the University of Michigan. During her presentation Mills admitted in response to a question that her bias is toward farmland preservation. As a result, a group of township residents known as The Pine Township Coalition for Safe Energy took matters into their own hands. On April 8, 2021 they hosted a Zoom presentation by Mr. Martis with more than 160 people in attendance. A video of Mr. Martis’ presentation and the Q&A session that followed can be seen on YouTube by searching “Kevon Martis Montcalm County Wind Zoning Meeting 4-8-2021”. (As of this date there have been over 550 views of the video.) At a meeting on April 12, 2021, the Pine Township board voted to place a six month moratorium on wind energy permits and to send a survey regarding wind energy issues to township landowners and voters. • At a February 8, 2020 Maple Valley Township board meeting, the supervisor announced that a current trustee had resigned. As a result, the board summarily appointed a new trustee to fill the vacancy. That new trustee has a lease with Apex. A member of the MCCU group had offered to fill that position but was rejected because she threw her name in at the last minute. There was no posting of the open position on the township’s website or Facebook page. When asked why the board chose the new trustee for the position, the supervisor responded, “I asked Ben if he was interested because he’d come to us before saying he was interested in township and government.” During the discussion on this issue between the supervisor and residents in attendance, the following exchange occurred between the supervisor and a resident: “We’re doing the best we can to keep going here,” [the supervisor] added, visibly frustrated. “If we didn’t have a wind energy program going right now, none of you would be here for this meeting. We usually only have two or three people show up for our meetings.” The resident responded: “That’s because when we elect you, we assume you have our best interests at heart. With all the comments tonight, you can’t tell me you have the best interest of Maple Valley Township.” Thus far the new trustee has recused himself from voting on wind energy related matters. • With this as a background, one of the MCCU members posted this on their Facebook page at 7:15 pm on April 15, 2021: “Pierson planning commission is on Zoom now!!! Trying to change set back!!” When people joined the Zoom meeting, they were shocked to discover that Mr. Jongewaard was giving a sales pitch. He repeated several claims about the Apex lease that had been refuted in my February 22, 2021 letter to the Sidney Township board. MCCU members and others then watched and listened as the planning commission proceeded to amend the “Gold Standard” wind energy ordinance by cutting in half the wind turbine setback from non-participating properties. All of that was then topped off by the
turbine setback from non-participating properties. All of that was then topped off by the planning commission claiming it did not have to hold a public hearing on the changes. Following the meeting, it was discovered that the “Gold Standard” wind energy ordinance was adopted three days before a new board took office with a new supervisor and two new trustees. On top of that, the clerk who continued to serve on the board was the one member who had voted against the “Gold Standard” wind ordinance as being too restrictive. Suddenly, the belief that at least one township in Montcalm County was safe from Apex seemed to disappear. And hope that the same could be true for other townships seemed to vanish. People asked themselves, “Where are the township officials who place the health, safety and welfare of their residents as their primary and overriding purpose?” Conclusion: None of what’s described above can excuse or serve as a defense for some of the things that were said both during and after last week’s planning commission meeting. But, perhaps, peoples’ passionate reactions and words are at least understandable given what most of them have been though over the past 6 months. Coming from different townships these Montcalm County residents have joined together to support one another, educate one another, and advocate for one another. Why? Because if Apex succeeds with its plans, every resident in the county will be affected, regardless of where Apex constructs its wind turbines. 1