memorandum
to: Town
Council
from: Charlestown Planning Commission
subject: advisory opinion, Ordinance No. 317, WIND
energy generators
date: 9/10/09
Under
section 218-16 of the Zoning Ordinance, The Planning Commission shall file
with the Town Council an advisory opinion on all proposed amendments to this
Ordinance within forty-five days of receipt of such a proposal. Among its findings and recommendation the Planning
Commission is required to include a statement on the consistency of the
proposal with the Comprehensive Plan and with each of the applicable purposes
of zoning as presented in section 218-2.
We have prepared our advisory in five parts: a Summary which
follows below; Consistency with the Comprehensive Plan; Consistency with the
Purposes of Zoning; an explanation of
Planning Commission amendments to the proposed ordinance; and suggested
amendments to the proposed ordinance.
Summary
The Planning Commission finds that the proposed wind
ordinance as written, and the process used to create it are not in compliance
with CharlestownÕs Comprehensive Plan and with the applicable purposes of
zoning.
The Planning Commission supports the construction of wind
turbines in Charlestown as long as there is public out reach and a demonstration
of public support; a study of wildlife impacts and mitigation of those impacts
where they exist; and protection of surrounding residents or some benefit or
tradeoff to compensate for change for those living nearby. The Planning
Commission also recognizes that there may be a great difference in the impacts
of a 5kw or 10kw turbine that a homeowner might install and a 400-foot high or
greater utility scale turbine. We believe that a zoning ordinance for wind
should address those differences.
Wind turbines and met towers are allowed currently by zoning
and applicants can apply under applicable sections of the cell tower ordinance.
In the short term, the Zoning Board could easily use this proposed ordinance as
guidance in granting a special use permit for a pair of wind turbines.
The Land Use, Services and Facilities, and Implementation
elements of CharlestownÕs Comprehensive Plan all contain the following language
ÒAmend the zoning ordinance to require a special use permit for installation
of wind turbines and meteorological towers for residential, commercial, or
municipal use.Ó The
Town Council is proposing an ordinance that exempts several classes of turbines
from special use permit, site plan review, notice to abutters, and in some
cases makes the Town Council the body that reviews and approves development
proposals.
The Implementation Element of the Comprehensive Plan
describes the actions that should be taken to implement the Comp Plan and the
Commission or Department responsible for that action. The Implementation
Element gives the responsibility for this amendment entirely to the Planning
Commission. The Planning Commission is being allowed to comment on this
ordinance as is required by state law, but we were not involved in writing it,
we do not support it as written, and this process does not follow the
Implementation Element of the Comprehensive Plan.
The Land Use Element of the Comprehensive Plan has two
stated goals; one is to ÒEncourage public participation throughout the
process, including the business community, interest groups, and residents.Ó State law has changed to allow
direct sale of electricity by individuals. We think that the Comprehensive Plan
may not technically have to be amended since it does say wind turbines by
special use permit, but we think the Town should still go through the public
out reach process to find out what the people of the Town want. Block Island
surveyed their residents, Narragansett and DEM are doing a survey, residents of
Portsmouth and other communities were surveyed. We think it very likely that
the feeling in Charlestown is generally positive, but no one really knows.
There are some technical concerns with the ordinance as
well. DEM is planning to site large turbines in Narragansett and as part of
that process has released guidelines for setbacks, noise and some wildlife
impacts. The ordinance the Town Council is proposing provides much less
protection to neighbors and important wildlife areas than what the state is
proposing.
We have provided you with a marked up ordinance in the event
you decide to go forward immediately with this Zoning Ordinance amendment. But
it is our recommendation that you return to the process of land use change that
is outlined in our Comprehensive Plan. This is a process that attempts to
engage and involve the public and measure public opinion before the Zoning
Ordinance is changed in ways that may change the landscape of the town. Those
changes may in fact be very positive, but the process used for this amendment
has only allowed limited involvement by the Planning Commission and even less
involvement by the public.
Consistency with the
Comprehensive Plan
As part of an advisory opinion we
are required to find consistency with the Comprehensive Plan.
The Charlestown Comprehensive Plan update was adopted by the
Town Council on October 16, 2006 and approved by the State Department of
Administration on April 28, 2008. We did talk about wind power when we worked
on the Comp Plan update in 2005. At that point turbines to provide energy to an
individual home or business or school were all that were imagined. What was
allowed at that time was limited to net metering. Utility scale (sometimes
called industrial scale) turbines were not fully contemplated. Since that time
there have been changes in State Law to allow the direct sale of electricity by
individuals; and now there are new government grants and changes in taxes to
make it more economically feasible.
In the Land
Use element of the
Comp Plan, under Policies and Actions there is a bullet for wind power under
policy 7.
LAND USE
GOAL
Encourage
public participation throughout the process
Policy
7: Encourage sustainable land uses that support protection of the aquifers and
reflect green space development.
¤
Amend
the zoning ordinance to require a special use permit for installation of wind
turbines and meteorological towers for residential, commercial, or municipal
use. (See Services and Facilities Policy 16).
Although this proposed ordinance amendment may require a
special use permit, it also exempts many applicants from the special use
permit. Since the Comprehensive Plan specifically states that the zoning
ordinance should be amended to require a special use permit for wind turbines,
then this ordinance which exempts industrial scale turbines and other turbines
from special use permit and site plan review is not in conformance with
CharlestownÕs Comprehensive Plan.
The Services and Facilities element of the Comp Plan also
mentions wind under its Policies section.
o
Consider
use of wind energy to harness one of CharlestownÕs natural resources, wind, to
reduce municipal energy costs
o
Apply
for federal and state funding to investigate wind and other sustainable energy
opportunities.
o
Consider
role of wind and other sustainable energy sources to eco-tourism in
Charlestown.
¤
Provide
comment to proposals by state and federal agencies and private development for
wind energy projects located both on and offshore. Issues could include
aesthetic, environmental, fiscal, and tourism impacts.
¤
Amend
zoning ordinance to require a special use permit for installation of wind
turbines and meteorological towers (See Land Use Element Policy 7).
Here again there is a requirement for a special use permit
for both wind turbines and met towers. Both of these Comp Plan elements are
supporting, even promoting, wind power and yet they say to do so with a
requirement for a special use permit. There also is guidance here to consider
aesthetic, environmental, fiscal, and tourism impacts.
The Implementation Element of the Comprehensive Plan
describes the actions that should be taken to implement the Comp Plan and the
Commission or Department responsible for that action. It lists the following
action: Amend the zoning ordinance to require a
special use permit for installation of wind turbines and meteorological towers
for residential, commercial, or municipal use. The Implementation Element gives the responsibility
for this amendment entirely to the Planning Commission.
The Planning Commission is being allowed to comment on this
ordinance as is required by state law, but we were not involved in writing it
and we do not support it as written and that certainly does not follow the
Implementation Element of the Comprehensive Plan.
The Land
Use Element of the Comprehensive Plan has two stated goals: To protect the natural and cultural resources and
rural character of the Town while providing the housing, economic base, and
services necessary for the broad range of residents to enjoy the high quality
of life associated with the Town; Encourage public participation throughout the
process, including the business community, interest groups, and residents.
We think utility scale wind turbines and the number of
possible turbines go beyond what the public might have imagined just 4 years
ago. As we mentioned before, state law has changed to allow direct sale of
electricity by individuals.
We think that the Comprehensive Plan may not technically
have to be amended since it does say wind turbines by special use permit, but
we think the Town should at least go through the public out reach process to
find out what the people of the Town want before we change the townÕs
landscape. Four years ago wind turbines were expected to be for individual use
in this area. You need to engage the people and find out how they feel about
utility scale turbines, how many they think we should have, how close do they
want to live to a wind turbine and lots of other questions. Block Island
surveyed their residents, Narragansett and DEM are doing a survey, residents of
Portsmouth and other communities were surveyed. We think it very likely that
the feeling in Charlestown is generally positive, but no one really knows.
Changes in ordinances that have the potential to radically
change the landscape, even in positive ways, should only be done after soliciting
and considering public input. A public hearing is not the same as public
outreach. Most people in this town have never been to a Town Council meeting
and are not likely to come, but they might respond to a survey.
Therefore we find that the ordinance itself and even the
method used to develop and write the ordinance do not comply with the Land Use,
Services and Facilities, and Implementation elements of CharlestownÕs
Comprehensive Plan.
State law requires that we comply with our Comprehensive
Plan
45-22.2-13 Compliance.
(c) For those municipalities with comprehensive plans
approved pursuant to this chapter all municipal land use decisions shall be in
conformance with the approved municipal comprehensive plan.
Consistency with the Purposes of
Zoning
As part of
an advisory opinion we are required to find consistency with the purposes of
Zoning.
As part of
an Advisory Opinion we are required to (2) Include
a demonstration of recognition and consideration of each of the applicable
purposes of zoning as presented in ¤ 218-2,
Purpose/consistency with Comprehensive Plan/state laws.
¤ 218-2.
Purpose/consistency with Comprehensive Plan/state laws.
A. Comprehensive Plan. The Zoning Regulations set forth in
this Ordinance are adopted to be consistent with the Town of Charlestown
Comprehensive Plan 1991, and any amendments thereto. The Regulations are made
with reasonable consideration, to preserve the rural character of the Town, to
encourage the most appropriate use of land, to enhance the beauty of the
community, to be consistent with the RI CRMC SAM Plan and to protect the
character of neighborhoods. This Ordinance shall be construed in a manner that
will further the implementation of the goals and policies and applicable
elements of the Town of Charlestown Comprehensive Plan 1991, and any amendments
thereto.
The
Planning Commission members have their own personal opinions about wind
turbines with respect to beauty. But without public outreach, modeling to see
how much land is available to large turbines, and computer aided visioning to
see what that will look like, we canÕt tell you the cumulative impacts of wind
turbines on Òthe rural character of the TownÓ or Òthe beauty of the communityÓ. We think the setbacks proposed in
the ordinance are not sufficient to Òprotect the character of neighborhoodsÓ if there is not considerable public
support to have them sited near houses.
B.
Purposes. Adopted pursuant to R.I. Gen. Laws 45-22.2 for the following purposes
that are intended to be given equal priority and are numbered for reference
only:
(1)
Promoting the public health, safety, and general welfare.
Rhode
IslandÕs Terrestrial Wind Turbine Siting Report, includes the following
advice for setback distances, ÒUntil a scientific risk based standard is
developed, DEM should consider a siting-criteria for placement of a wind
turbine near property lines, permanent residential structures, roads and trails
that would be 1.5 times the hub height plus the rotor radius. This is the
distance recommended in Massachusetts and a number of other states. This would
provide for an adequate margin of safety factor in the event of a structure
failure.Ó
The
ordinance you are proposing has only a 1.1 setback to property lines and no
setback for residential uses on the property where the turbine is located. The
ordinance you are proposing would provide less protection to public health and
safety than the State is recommending for itself.
(2)
Providing for a range of uses and intensities of use appropriate to the rural
character of the Town and reflecting current and expected future needs.
The
question of whether Wind Turbines are appropriate to rural character is one
that we need to go to our residents and visitors with. The Planning Commission
does not think there has been adequate visioning to know what impact large or
utility scale turbines will have on the perceived character of the town. Many
people find them beautiful, but will they change the character in ways that
make people decide not to summer here or will they attract tourists?
(3)
Providing for orderly growth and development that recognizes:
(a) The
goals and patterns of land use contained in the adopted Comprehensive Plan and
foster the Plan's implementation.
Depending
on whether you view turbines as works of art or industrial development you may
find that these enhance or violate the patterns of land use. Very little of the
Town is zoned Industrial. This is an industrial use at the utility scale, but
it may be well accepted again depending on public opinion, which has never been
measured with a scientifically based survey.
(b) The
natural characteristics of the land, including its suitability for use based on
soils characteristics, topography, and susceptibility to surface or groundwater
pollution;
We believe
that the impacts of wind turbines on land are small since the area on the
ground for a foundation and fencing etc., is a small area. So we believe they
will have a neutral impact on surface or groundwater pollution. Where they are
proposed to be the only use of a parcel of land they would have nearly the same
benefit to ground water as open space and could in that way benefit the long
term quality of surface and groundwater.
(c) The
values and dynamic nature of coastal and freshwater ponds, the shoreline, and
freshwater and coastal wetlands;
In terms of water quality and
quantity our analysis would be the same as (b) above.
(d) The
values of unique or valuable natural resources and features;
In our
research and in our discussions with staff at the local US Fish and Wildlife
Service we have learned that wildlife impacts from wind turbines are greatly
reduced from what they were in older designs. Still USFWS has commented that
studies should be undertaken to determine migratory paths of birds and
especially bats. Bat mortality from large turbines can be extreme as they seem
to be attracted to turbines and their lungs explode from the air pressure
differences near turbines. Bats are extremely important in mosquito control and
their populations are already under great pressure from disease. We have asked
for mitigation measures in the wind turbine operation. The ordinance as written
has no provision for a meaningful study of bird and bat impacts and we think
that is a flaw.
The
DEM siting guidelines contain the following: ÒThe Division of Fish
and Wildlife analyzed the possible impacts of wind turbines on avian resources.
In their analysis, they suggested consideration for a 100-200 yard buffer along
the coast. Young passerines often get blown off course, especially during fog
events and head for shore at daylight. They are often exhausted and stop at the
first available cover near the dunes. The Division also indicated DEM should
avoid siting a wind turbine on East Matunuck Beach due to the piping plover
issue.Ó
The
proposed ordinance has property line setbacks, but no setbacks for coastal
avian impacts. Again this is less natural resource protection than the state is
proposing and is not addressed in your ordinance.
(e) The
availability and capacity of existing and planned public and/or private
services and facilities;
Whether
National Grid will eventually need to upgrade or add transmission lines because
of terrestrial wind turbines in Charlestown is unknown. That is the kind of
modeling that needs to be done. We need to decide if we want to permit so many
utility scale turbines that we need bigger transmission lines which would have
more impact on community character than the turbines themselves.
(f) The
need to shape and balance urban and rural development; and
(g) The
use of innovative development regulations and techniques.
(4)
Providing for the control, protection, and/or abatement of air, water,
groundwater, and noise pollution, and soil erosion and sedimentation.
Noise
will be a major issue in siting wind turbines. Setting noise standards through
regulation may not take into account site conditions such as vegetation, which
acts as a noise suppressor and background noise such as traffic, wind noises
and if at an ocean setting, the sound of the waves on the beach. Some
ordinances have required a site-specific noise study to be conducted in the
vicinity of the installation of a wind turbine. The noise study would allow for
actual measurements of background noise levels and would also take into account
impacts of vegetation. The noise study would account for local conditions and
would determine if the wind turbines could meet noise standards prior to
construction of the turbines.
The
proposed ordinance does not require any study of predevelopment conditions and
the noise levels allowed are more consistent with denser development noise
levels than rural noise levels. Depending on siting, the wind turbines may have
little impact on noise levels, but the ordinance does not provide enough
protection or enough incentive to acquire the best available technology in
terms of noise protection.
(5)
Providing for the protection of the natural, historical, cultural, and scenic
character of the Town or areas therein.
Again,
there needs to be modeling done (before an ordinance can be passed) of the
possible number of large turbines and the cumulative visual impact of those
turbines to know how it impacts scenic character. And public opinion may
support a change in the scenic character if that is coupled with the threat of
climate change and wars fought over fossil fuels. Presently public opinion in
Charlestown is unknown.
(6)
Providing for the preservation and promotion of agricultural production,
forest, silviculture, aquaculture, timber resources and open space.
Where wind turbines are proposed to
be the only new use on a parcel of land they could be used to provide the
financial means to preserve land for agriculture, forestry or open space.
(7)
Providing for the protection of public investment in transportation, water,
stormwater management systems, sewage treatment and disposal, solid waste
treatment and disposal, schools, recreation, public facilities, open space, and
other public requirements.
(8)
Promoting a balance of housing choices, for all income levels and groups, to
assure the health, safety and welfare of all citizens and their rights to
affordable, accessible, safe and sanitary housing.
(9)
Promoting safety from fire, flood, and other natural or man-made disasters.
(10)
Promoting quality in design of private and public facilities.
(11)
Providing for coordination of land uses and resources with contiguous Towns,
the State, the Narragansett Indian Tribe, and other agencies, as appropriate.
(12)
Providing for efficient review of development proposals, and to clarify the
zoning approval process.
(13)
Providing for procedures for the administration of the zoning ordinance,
including, but not limited to, variances and special use permits.
This ordinance contains a basis for
exemptions from special use permits that we can find in no other wind
ordinance.
(14)
Promoting an economic climate that increases quality job opportunities and the
overall well-being of the Town.
Allowing wind turbines may not
promote jobs in Charlestown, but it does promote energy independence and it may
provide a financially viable use of land that is more desirable than other
uses.
---
As
part of an advisory opinion we are required to find consistency with the
Comprehensive Plan and with the purposes of Zoning which we have done above. We
have also marked up the proposed ordinance with suggested changes. Those
markups bring the ordinance closer to consistency with the Comprehensive Plan
and the purposes of zoning, but that doesnÕt mean that we recommend its
adoption if it is amended or that those changes bring it into full conformance
with the Comp Plan or purposes of Zoning. But if the Town Council chooses to
ignore our advisory and pass an ordinance, then we would hope that you would
make our suggested changes to the ordinance to at least move it in a direction
of compliance and to better protect natural resources and the character of the
community.
Explanation of Planning Commission amendments to
the proposed ordinance
The
definitions used in the proposed ordinance for Small and Large Wind Facility are industry standard for utility scale and
non-utility scale turbines. The new wind turbine installed at New England
Institute of Technology is a 100kW turbine. This is small perhaps by industry
standards, but not by community standards. We have chosen a cut-off of 20kW for
our definition of small. Most residential turbines will be in the 5 to 10kW
range, so even 20 may be too large, but certainly 100 should not be installed
without a special use permit as this ordinance allows. We have added a
definition of Utility-Scale Wind Facility.
As
we mentioned previously, the Comprehensive Plan direction was for a requirement
for special use permit. All zoning decisions are appealable, no matter who
makes the decision, even a building permit is appealable. Using this exemption
and the process of Town Council review of a land development we believe makes
appeal more likely, and perhaps more successful.
5. Site Control
The
proposed ordinance is copied from the ordinance from Quincy Massachusetts that
in turn is based on the Massachusetts model ordinance. Both of these ordinances
require this site control language for large turbines. We have added this only
for Utility-Scale.
2. Setbacks
The
proposed ordinance language is nearly identical to the Quincy Massachusetts
ordinance except in terms of setbacks. That ordinance, the Massachusetts model
ordinance and most model ordinances require the 1.5 setback and some require
more. We require a 1.5 setback for cell towers. These setbacks are not just
fall zones. They allow an abutting property owner to have enough of a setback
to not perceive the tower or turbine towering over them and allow them to see
that they are not in any possible fall zone. A setback of 1.5 is also what is
advised by the state. Rhode
IslandÕs Terrestrial Wind Turbine Siting Report, includes the following
advice for setback distances, ÒUntil a scientific risk based standard is
developed, DEM should consider a siting-criteria for placement of a wind
turbine near property lines, permanent residential structures, roads and trails
that would be 1.5 times the hub height plus the rotor radius. This is the
distance recommended in Massachusetts and a number of other states. This would
provide for an adequate margin of safety factor in the event of a structure
failure.Ó
4. Noise
These (in yellow) are the
noise levels advised by DEM for their turbines. The noise levels in the
proposed ordinance are consistent with more urban areas.