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Wind turbine ordinances revisited

Posted on: November 15th, 2017
by David Ganje

Walworth County passed a new wind turbine Zoning Ordinance this past spring.   It is a comprehensive planning and zoning ordinance which holds the ominous name of Ordinance #2017-1. What is the most controversial provision of the ordinance?  Wind turbines must meet the following minimum spacing requirements:  A distance at 10,560 feet or 2 miles from existing off-site residence, business and churches.  The distance from other existing buildings or structures shall be at least 1,000 feet with distance from on-site or lessor’s residence shall be a least 500 feet.  Is it reasonable? Yes. These terms require a greater setback than several other wind project ordinances in North and South Dakota. It is also contrary to the South Dakota Public Utility Commission’s ridiculously inadequate recommendation of a 1000 foot setback.  The ordinance was challenged; first by petitions for a special election by county residents, and then by a court challenge which invalidated the petitions. Welcome to America.  I would prefer that a special election of Walworth County residents go forward, but that is not the subject of today’s sermon.

This opinion piece discusses the terms of the ordinance not the pending legal procedures.  I am not involved in the legal challenge to the ordinance.   Let us remember that all politics is local. Indeed, all planning and zoning politics should be local. One cannot compare the wind tower setback of ‘two miles’ for Walworth County with ordinances written for Lincoln County or other South and North Dakota counties. Why the difference? Population densities are different. Topography is different. Traffic patterns for road and highway use are different.  Local economies and local communities are always unique: What percentage of an affected wind farm area is ag?   What percentage of effected land is industrial or commercial?  What are the preferences of the local community and its political leaders?  All this is very relevant and sui generis to the county.

A nationally recognized expert in property valuations and land use evaluations, Michael S. McCann, has used a recommended two-mile minimum as a benchmark for turbine setbacks in his advocacy. He uses a ‘use and enjoyment’ argument regarding surrounding properties. His arguments regarding setback terms merit consideration.

Is the proposed Walworth Ordinance perfect? No. It contains certain errors and general provisions that do not necessarily fit the locale. It is part template and part editing from other ordinances. Is it better than the prior ordinance? Yes. Is it workable? Yes. Could it use improvement? Please don’t ask my ex-girlfriend about making improvements.

Does wind power have a place in the region’s economy?  Indeed it should and it does. Consider the local economic effects of a wind farm.  I will leave for a separate discussion significant and relevant environmental impact and risk issues which matters should also be properly and concisely addressed in any proposed project plans. What are the local economic benefits of a wind project? 1. Landowner rental payments. 2. Initial construction jobs. 3. Some additional regional long term employment. 4. Limited albeit local redistribution of tax collections. 5. Wind projects put minimal strain on local government on matters of law enforcement, or on increased costs to maintain local school districts. Brookings County has 140 wind turbines. I know of no farmer or politician in Brookings County who complains of the many turbines in the county. 6. I have not experienced one case of an actual reduction in agricultural or livestock production caused by a nearby wind farm in either state.  And I know of no evidence that the value of agricultural or ranch land is reduced by operating wind turbines which are properly maintained.  Nevertheless it is my opinion (notwithstanding a 2009 US Department of Energy study to the contrary) that residential property values located close to wind turbines are negatively affected by the presence of nearby turbines.

Perfect legislation and rule-making are not achievable on this earth. The Walworth Ordinance has imperfections.  I would place other safeguards and standards in the ordinance. It is nevertheless a good step forward, and brings into today’s world the 1983 Walworth County Zoning Ordinance. The proposed ordinance is a modern, good effort toward rule-making oversight for wind farms.

David Ganje practices in the area of natural resources, environmental and commercial law in South Dakota and North Dakota.