Turbine plan stirs Chowan County
CHOWAN COUNTY — Elliott Engstrom, an attorney for the Center for Law and Freedom, which is funded by the Civitas Institute, sent a letter to Chowan County officials in mid-August clarifying points of law in the ongoing wind energy controversy.
He has taken up the cause of local residents working for stricter protections in the face of possible explosion of wind energy in northeast North Carolina.
Earlier this month, the Chowan County Board of Commissioners directed County staff to convey the recommendations of the County Planning Board for changes to the energy ordinance into a formal amendment for consideration– ahead of a possible public hearing on the proposed changes in the coming months.
In his letter, Engstrom took issue with a statement from the commission, saying that it could adjust County zoning ordinances concerning wind energy if the existing ordinance, submitted by Apex Clean Energy, turns out not to be in the best interest of the residence of Chowan County.
“This is an incorrect statement of law,” he wrote. “Once Apex submits its conditional use permit and begins construction, it will gain certain rights under North Carolina law.”
One of the rights is to have the project carried out under the original ordinance and not under any changes made after the project was approved.
“The time to amend the Chowan County wind ordinance is now,” he wrote.
Engstrom also took issue with a claim that his organization was coming in to stir up trouble, when in fact he was brought to help local residents amend the County wind ordinance.
A citizen group is pushing for the commissioners to take up the planning board recommendations, which include protections for wildlife, health and property owners in line with similar ordinances passed by localities across the country.
The first step — after county staffers draft the amendment — will be for the Planning Board to sign off on the text of the amendment, followed by a public hearing on the proposed changes.
Residents say current the ordinance leaves citizens unprotected.
The current ordinance limits the height of wind turbines to 600 feet, includes a 55 decibel acoustic limit at any occupied, nonparticipating land owner’s property, and requires a buffer zone around the wind turbines to the nearest occupied building on the closest nonparticipating property to be equal to 2 ½ times the height of the wind turbine.
The term ‘non-participating property’ is any land that has not been leased, or otherwise compensated, by the wind energy developer.
The ordinance also requires builders of wind turbines to remove them after 12 months of no power generation and to maintain a bond for the estimated removal cost, minus the value of the materials if sold for scrap.
Proponents of the proposed amendments say existing law does not provide sufficient protections for all issues involved with wind turbines.
Proposed amendments built off of existing ordinances elsewhere.
The proposed amendments, which were gathered from other local ordinances across the country, include an extension of the buffer zone to one mile, provisions to reimburse pay landowners for any independently verified property value losses, a new upper acoustic level of 35 decibels as well as the formation of an escrow account to pay County expenses related to the wind turbines.
To compile the proposed amendments, ordinances in Idaho, Maine, New York, Wisconsin and elsewhere in North Carolina were considered.
Some localities have placed 5 decibels limits over pre—construction noise levels at property lines and 20 decibels limits over preconstruction levels in occupied dwellings.
Five of the eight localities examined utilized a 35 decibel level.
In a related story:
Chowan Commissioners Stack the Planning Board in favor of Apex Development
The Chowan County Planning Board met on Aug. 24 at 6 pm and continued until approximately 9:30 pm, then recessed until the 26th at 7 pm. The main purpose was to discuss the recommendations made to improve the county’s wind energy facility ordinance, which the Planner, Elizabeth Bryant, was directed to put into text amendment format.
The meeting did not go smoothly. Ms. Bryant read a letter from Civitas attorney Elliott Engstrom, which warned the officials about potential conflicts of interest, hinting that if they did not follow the law, a civil suit would be forthcoming. The County attorney, Lauren Womble, added a few comments about conflict of interest. She expressed her views about financial conflicts and the difference between legislative and quasi-judicial hearings. There were about 30 to 40 people in attendance, mostly supporters.
Once the conflict of interest recusals began, the County attorney declared that Planning Board member Monds could not vote for the same reason that she had declared Commissioner Smith to have a conflict as well. She stated that because both had been offered a lease by Apex for the use of their property, that a conflict of interest existed. However, Linda Peterson was a different story. Several people brought up the fact that she was an advocate for renewable energy and had a financial interest as a paid employee of the Albemarle Resource Conservation and Development center, which has a mandate for pushing all things “green”.
Mrs. Petersen then spent 15 minutes or more stating all the good work that her employer was doing, going back at least five years. That was all well and good, but she had sent everyone three documents that turned out to be propaganda promoting the wind industry and, based on that, appeared to be a lobbyist. It was further noted that the Clean Energy Technology Center, at NC State, from whom she had gotten the questionable materials, was nothing but a tenant organization with no academic ties to the University and was lobbying for renewable energy. That surprised a lot of people, but not enough to vote for her recusal.
County Planner Bryant went through both of her drafts, one of which incorporated most of the Planning Board recommendations, but used wording lifted wholesale from the Carteret County ordinance with the second draft being her recommended version which left out most of the recommendations from the Planning Board. She explained that her use of the Carteret County wording was because the subcommittee had given that counties ordinance the highest rating, but not realizing that it was not the basis for the subcommittee recommendations. She should have and could have contacted the subcommittee members for clarification but chose not to do so.
A citizen prepared version was also under consideration and this was reviewed point by point emphasizing that the subcommittee deliberately did not recommend the Carteret County ordinance because it was considered to be too restrictive. Each of the recommendations were reviewed following which a motion was made to set aside the version of the Carteret County wording. Ms. Peterson asked some questions and then seconded the motion, which passed 3 to 1.
Chairman Hare wanted the Planner to put the citizen version into “text amendment format”. He was advised that it already was in that format but he wanted a line-by-line sameness so that an accurate comparison could be performed. The one that was recommended had major flaws including lack of a 1 mile setback, no 35 dB noise limit, no escrow requirements to allow hiring independent experts, reasonable environmental standards determined by independent experts and a bond requirement for decommissioning that excludes estimated salvage value.
The supporters of the Planning Board amendment did not believe that the Planner had the authority to make substantive changes to the recommendations that were passed by a majority vote of the Planning Board, into a text amendment format to be submitted to the Commissioners.
On the 26th, the Planning Board met again, this time without any public comment allowed. It was clear from the beginning that Chairman Hare and Board Members Peterson and Winborne were in favor of the wind developer proposal. Board member Jim Robison, who was a member of the prior Planning Board that had prepared the revised Ordinance, was the only person in favor of keeping the old ordinance without modification. Board member Leggitt who had abstained in the original vote, a few months ago, abstained again. In so doing, his abstention was treated as opposing the changes, and he knew that was the effect of his actions, but he stated that he did not vote for the original document because he felt that it was tainted by the input of a anti-wind energy expert. He stated that this time, he felt that the process was tainted again but for a different reason. Mr. Robison tried to maintain his composure in the face of the suggestions by his opponents that were in favor of changing the recommendations, but in the end the vote was 3-2 to change they suggested ordinance that had been voted on previously.
Once the vote was taken, all of the discussion turned to language changes that had some bearing on the substance of the ordinance but not the implications. In the end, Apex it is an ordinance that is favorable to their review.
The significance of these developments in the Planning Board was to remove the Commissioners from the controversy. Approximately one month ago, the Commissioners were prepared to vote to overturn the recommendations of the Planning Board. But the citizen group had collected 650 signatures on a petition stating that they not want industrial wind turbines in their County. So the commissioners reverse their position and referred the matter back to the Planning Board to review the changes to the ordinance that they had already voted to approve.
Then Commissioner Winborne and others sought to replace supporters of the old ordinance with planning board members of their own choosing that would be more favorable to overturning the previously agreed to language, which is exactly what they got in the vote that took place last week. In this way, the commissioners can vote on the new recommendations from the planning board without taking responsibility to the citizens that had signed the petition. The only way that the citizens will be heard by these commissioners is to turnout at the next Commissioner meeting and speak to them directly and forcefully.