8/10/08 Why Does Your Township Need a Wind Ordinance? The breakdown of the basics of the recently passed wind ordinances, and what you should know before you sign up to host industrial turbines on your land.
We opened our mail today and found this letter:
Dear Better Plan, Rock County,
What is a wind ordinance? Can you tell me why my township needs one?
Thanks in advance for your consideration.
A Spring Valley Resident
Dear Spring Valley Resident,
We've been getting a lot of email with questions much like yours and we are more than glad to answer them! A wind ordinance is a set of regulations relating to siting of wind turbines in your township. The ordinance we are urging townships in Rock County to adopt has to do with regulating industrial scale wind turbines -- these are industrial machines 40 stories tall with blade spans wider than a 747. However, the newer turbines can reach fifty stories with even larger blade spans.
Machines this large have known noise problems, problems with casting large strobing shadows over homes, and each unit requires FAA approved lighting at night much like the strobing lights seen on communication towers. They are expected to be here for at least 30 years and will change life as we know it in Rock County forever.
The wind developers would like to be able to put these machines 1000 feet from our homes. This about is 350 steps. Unless a township enacts an ordinance to establish further setbacks, at present the state of Wisconsin allows them to do this.
The ordinances recently adopted in five Wisconsin townships ask for a set back of 2640 feet. The ordinances do not prohibit a land owner from signing a waiver to allow the turbines to be sited closer than that. If a landowner would like a 40 to 50 story turbine 350 steps from his door, he is welcome to arrange that with the wind developer. (The wind developer most active in our county is EcoEnergy) But for those who do not want such machines so close to their homes, an ordinance adopted by the township gives them this protection.
ARE WIND DEVELOPERS LOOKING TO PUT TURBINES IN TOWNSHIPS BESIDES UNION AND MAGNOLIA?
We know that they have been investigating sites in the townships of Spring Valley, Center and Janesville. Due to the secretive nature of wind development, most of us won't know about plans for wind development in our community until things are well underway. Wind developers often contact members of township boards first to offer them contracts. In Union township, Alvin Francis, Chairman of the P&Z board there has signed on with EcoEnergy to host a turbine. He has recused himself from the Union P&Z board's work on the ordinance because of this conflict of interest.
We've heard from board members of other townships who tell us they were also contacted by the developer to host turbines, but how many have already signed on, we do not know.
We also know that the issue of working on a wind ordinance has been brought up in the townships of Center, Spring Valley and Plymouth. The status of wind ordinance work in other Rock County Townships is unknown, but residents in these townships are urged to attend their town board meetings and ask their elected officials to begin work on adopting a protective ordinance. Luckily a good, defensible ordinance adopted by five other townships and vetted by five towns attorney's already exists. (You can download them by clicking here)
WHAT OTHER SORTS OF THINGS BESIDES SETBACKS DO WIND ORDINANCES COVER?
Wind ordinances address issues of health, safety and welfare of the residents of the township. They require the construction and operation of turbines to comply with township regulations in order to protect the things township residents hold most dear: Our families, our homes, our community and our land.
The ordinances address turbine-related issues such as:
Road use and repair obligations during and after construction including recording pre-construction road conditions and requiring road restoration to pre-construction conditions
-Groundwater contamination during and after construction including depth of excavation limits, well drilling, and surface water run-off management
-Ice throw from turbine blades
-Blade throw and turbine collapse
-Fire prevention and response
-Decommissioning, turbine removal, site restoration
-Review of plan by qualified engineer
-Above ground height limit of turbine
-Requirement of underground wiring
-Remedies for electromagnetic interference of radio, telephone and television signals.
-Setbacks from property lines, homes and other inhabited structures, public roads, power lines, telephone lines, and emergency communication towers
-Spacing and density
-Signage and fencing
-Insurance and indemnification
There are other issues addressed in the ordinance as well.
FOR THOSE OF US WHO LOVE OUR HOMES AND COMMUNITIES AND SURROUNDING LAND, FOR THOSE OF US WHO WANT TO PROTECT OUR PROPERTY VALUES, PEACEFUL NIGHTS, AND NEIGHBOR RELATIONS, YOUR TOWNSHIP'S ADOPTION OF A WIND ORDINANCE IS CRITICAL.
Because there will be a push beginning in January by lobbyists for the wind developers to get the state of Wisconsin to take local control over the siting and regulation of industrial wind farms in our own communities and hand it to the Public Service Commission. The PSC endorses the 1000 foot set back and other lax restrictions on wind developers. By adopting a wind ordinance before this issue comes up in Madison, Rock County townships will let it be known that local control over what goes on in our communities is something we've already taken a stand on.
We do not yet know if ordinances passed prior to the possible adoption of this legislation will be grandfathered in, but having an ordinance in place before the legislature re-convenes in January will be a definite advantage.
Below are some of the basic set back requirements in the ordinances passed last week in the Monroe County townships of Wilton and Ridgeville. They closely mirror the setbacks in the Magnolia ordinance passed in July and the ordinance now being readied in the town of Union.
L. Setbacks. Setbacks shall be measured from the outermost edge of the closest of the circular path of the wind turbine rotor blade. The Town Board may increase the following minimum setbacks on a case-by-case basis, in order to protect public health and safety.
1. Participating Property Line: 1.1 times the total height of the Wind Turbine from the nearest property line of a participating property owner.
2. Non-participating Property Line:
Five (5) times the rotor diameter but not less than 1,300 feet from the nearest property line of a non-participating property, unless the owner of the non-participating property grants an easement for a lesser setback. The easement must be recorded with the County Register of Deeds and may not provide for a setback that is less than 1.1times the total height of the Wind Turbine.
3. Public Roads and Highways: 1,300 feet or three (3) times the total height of the Wind Turbine, whichever is greater.
4. Above Ground Power/Telephone Lines: 1,300 feet or three (3) times the total height of the Wind Turbine, whichever is greater, from the nearest above-ground public electric power line or telephone line.
5. Residences & Other Buildings: 2,640 feet from the nearest residence, business, school, daycare facility, church, hospital and other sensitive receptors.
6. Wetlands: 1,000 feet from all sinkholes and wetlands.
7. Water Bodies Setbacks: 1,300 feet from the ordinary high water mark of all navigable water bodies.
8. Parks & Public Property: 2,640 feet from any town, county or state park, property, recreational or rest area.
Better Plan, Rock County invites you to contact us about any questions you may have about how to help your township adopt a wind ordinance that provides protection for your community. Our email address is email@example.com
WHAT SHOULD YOU KNOW BEFORE SIGNING A CONTRACT TO HOST AN INDUSTRIAL WIND TURBINE?
The following has been excerpted from a document developed by Roger McEowen PhD, Director of the Iowa State University Center for Agricultural Law & Taxation (CALT).
Legal Issues for Landowners
A wind energy agreement should never be negotiated without first having the agreement reviewed by legal counsel. Wind energy agreements are long-term agreements that will impact the land subject to the agreement for many years, likely beyond the lifetime of the landowner who executes the agreement. The following is a list of questions that landowners should ask when analyzing any wind energy agreement:
1. How much of the land will be subject to the agreement?
2. How long will the land subject to the agreement be affected?
3. Based on the property rights that are given up, are the proposed payments adequate for the present time and for the life of the agreement? (Note: The answer to this question requires an understanding of the mechanics and economics of wind energy production.)
4. If the agreement offers an up-front lump-sum payment, is the payment representative of a fair amount for the rights involved?
5. What are the tax consequences of the wind energy payments that will be paid under the agreement? (Note: The answer to this question depends on tax changes at the federal and state levels; the area is in an almost constant state of flux.)
6. Does the developer want to develop the land or simply use a portion of the surface for a term of years?
7. Does the agreement guarantee that a set number of wind energy turbines will be constructed on the land by a specific date and, if not, is the developer willing to guarantee a minimum amount of payments?
8. Are payments under the agreement based on revenues generated by the wind turbines? Can the landowner get information as to how the owner's revenue will be calculated?
9. Is the developer able to sell or transfer without the landowner's consent any of the land use rights obtained under the agreement? If so, will the original developer remain liable if the new developer or holder of the easement right does not pay the landowner or otherwise defaults?
10. What events trigger the developer's right to terminate the contract? Can the developer terminate the contract at any time without cause? If so, how are payments due under the agreement to be handled?
11. What termination rights does the landowner have? How does the landowner exercise those rights?
12. If the agreement is terminated, whether by agreement of the parties or otherwise, what happens to the wind energy structures and located facilities erected on the property? What is the developer required to remove? How soon must structures be removed? Who pays for their removal?
When a wind energy agreement is being negotiated, certain issues are critical to the creation of an equitable agreement. Unfortunately, a common problem with many wind energy agreements is that once they are proposed and submitted to a landowner, the company wanting to execute an agreement tends to refuse to negotiate changes to the terms of the agree¬ment. The company's ability to refuse to negotiate terms of the proposed agreement will depend largely on whether a landowner has meaningful options and competent legal representation.
1. Is the proposed contract a lease or an easement? If a lease is involved, it should be long enough for the developer to recoup its investment (probably at least 20 years). Does the developer have a right of renewal? If so, does the landowner have the right to renegotiate any of the lease terms? Any lease should not be perpetual — a violation of the rule against perpetuities might be involved (at least in those states that have retained the rule).
2. If an easement is involved, does the easement include turbine sites, substations, air space, buffer areas, vegetation restrictions, building restrictions, transmissions, and associated rights of way?
3. Is a sale of the land contemplated? If so, how is the selling price computed? Any sale price should consist of the fair market value of the land plus the wind energy value.
4. What is the amount of compensation to be paid? Take care to ensure that the definition of “gross revenue” is done properly. Is it defined as the sale of electrons or the sale of green credits, or is it calculated in some other manner?
5. Is the revenue to be a flat amount annually, an annual payment per tower, a percentage of gross proceeds, a payment of a certain amount of kilowatt hours generated annually, or an amount based on the selling price of megawatts per year, whichever amount is greater?
6. Is an inflationary factor built into the contract payment provisions? To protect the landowner’s interest, there should be.
7. Does the agreement cover land that will not be needed for the wind farm and related structures? From the landowner’s perspective, there shouldn’t be such coverage.
8. An up-front lump-sum payment has tax consequences — make sure they are understood.
9. What are the intentions of the developer concerning the use of the land? That makes understanding the use provisions of the agreement of primary importance. The construction clause should limit the construction of wind energy structures to not more than 3 or 4 years with adequate compensation paid to the landowner for restricting the use of the land during that time.
10. Can the developer assign the agreement? If so, a clause should be inserted that ensures the original developer’s liability if the assignee defaults under the terms of the agreement. (Note: Developers want the ability to assign the agreement and subordination language.)
11. Is the landowner willing to consent to a mortgagee of the developer? If so, a clause should be included that limits the landowner’s obligations to the mortgagee.
12. Consider including an indemnification clause that indemnifies the landowner for any liability incurred as a result of permissive activities (such as crop tenants, custom harvesters, and subsurface tenants) on the property subject to the wind energy agreement.
13. What are the landowner’s rights concerning usage of the property?
14. Consider the use of a clause that requires the landowner to be treated as favorably as neighbors (consider how to define “neighbor”) executing similar agreements.
15. Include a clause requiring the removal of all improvements the developer makes upon termination (whether voluntary or otherwise) of the agreement. Relatedly, for developments in the Flint Hills, include a provision specifying which party gets the rock that gets excavated to build the wind energy structures.
16. Require the agreement to be recorded (not just a memorandum of the agreement) to eliminate the necessity of having to locate a copy of the lease in the event of sale or mortgage of the property.
17. Never agree to confidentiality clauses concerning the terms and conditions of the agreement.
18. Have the contract reviewed by the landowner’s insurance agent for analysis of any additional risks created by the wind energy project.
19. Will the agreement violate any USDA land-use restrictions if the subject land is enrolled in a USDA program? If such a possibility exists, consider including in the agreement a clause requiring the developer to indemnify the landowner for any lost government payments or the imposition of any penalties.
20. Evaluate the agreement with an eye toward the risk faced by the landowner. That includes environmental concerns, issues that could be raised by neighbors (i.e., nuisance-related concerns), and potential violation of applicable zon¬ing and set-back requirements.
Clearly, wind farming has the potential to provide significant economic benefits for rural landowners. However, substantial peril exists that landowners who don't carefully evaluate proposed agreements with developers can be taken advantage of significantly. Landowners should have any proposed agreement evaluated by legal counsel and attempt to negotiate any unfavorable terms. Failure to do so could result in many years of dissatisfaction for landowners.