On March 27, 2009, residents of Mars Hill living within 3600 feet of First Wind's wind facility filed a civil complaint in Maine's Superior Court seeking relief from the "significant harm" caused by First Wind and others by the construction and operation of the site. Medical professionals recognize the health problems related to the turbines at Mars Hill are valid.
The past two and one-half years have been a trying and difficult time for the families of Mars Hill and their decision to file the suit was not an easy one. But it is also clear to Windaction.org that the State of Maine has washed its hands of Mars Hill, placing its pursuit of wind energy development ahead of the health, welfare, and safety of its residents. And the State's continuing down this path in Roxbury, Maine.
Here's the history: Shortly before the Mars Hill wind project went online in March 2007, problems of intrusive sound levels were reported despite repeated assurances by developer, First Wind, and town officials that there would be no noise. Andrew Fisk of the Bureau of Land & Water Quality at the Maine Department of Environmental Protection (ME-DEP), the agency which approved the facility, responded by requiring First Wind to conduct sound surveys during four seasons of operation to determine whether the project was in compliance with its permit. The permit allows the project to produce nighttime noise levels of 50 decibels at sensitive receptors near the homes. Resource Systems Engineering (RSE), who designed and conducted the pre-construction noise modeling study for First Wind was also engaged to conduct the subsequent monitoring studies.
When RES delivered its first sound survey report in June 2007, the residents, and others, raised questions related to the protocols used. ME-DEP hired Warren Brown of EnRad Consulting to peer-review and validate the survey work. Mr. Brown identified problems with the methodology employed by RSE but determined the findings to date were still substantially in compliance with the permit conditions.
RSE implemented some adjustments and the last two surveys were conducted in winter and spring 2008. It was not until December 5, 2008 that Warren Brown issued his final report to the State; the families received their copy of Brown's report on December 17, 2008 one day prior to a face-to-face meeting scheduled between the Mars Hill residents, First Wind representatives and Andrew Fisk to discuss Brown's findings. Other attendees at the meeting included Richard James of E-Coustic Solutions , an acoustics engineer engaged by the families to help sort through the noise issues, and Lisa Linowes of Windaction.org.
Despite having only one day to review Brown's findings, the families were well aware that doubts about the project's compliance remained. Even in his vaguely worded report, it was apparent Brown still had concerns:
"It is the opinion of the reviewer that this 4th assessment of the project demonstrates compliance at nearly all bordering protected locations, except the protected location adjacent MP-8, as established in the Control of Noise rules and the variance given in Department Order L-21635-26-A-N/L-21365-TG-B-N, dated June 1, 2004. ...In instances where operation levels approach or exceed regulatory limits testing methodologies have not been sufficiently refined to adequately isolate operation sound levels."
And Rick James raised the point that RSE's sampling of turbine noise at 5 second intervals, outside the protocol defined under Maine State law which requires 1/8 of a second intervals, would mute, or even mask short duration repetitive sounds (thumping, whooshing, popping) generally accepted as a characteristic of all modern industrial wind turbines.
Despite these and other serious questions regarding the adequacy of the sound surveys, Fisk announced at the outset of the December 18 meeting that he had approved and mailed on that day, a letter to First Wind notifying the developer that the project was in compliance with its permit.
We disagree with Mr. Fisk.
And it's quite possible so does Mr. Brown. Meeting minutes taken during a March 5, 2009 conference call with Maine's Public Health Director Dr. Dora Mills, Andrew Fisk, Warren Brown and others reveals a very different situation. Here, Mr. Brown highlights concerns with existing studies and states "Wind turbine noise needs more investigation!" (exclamation included).
What's more intriguing from the meeting minutes are the statements by Dr. Mills who appears to be quarreling with Brown over whether turbine noise has any adverse health effects. While Mr. Brown is steadfast in raising his concerns, it is disconcerting to see how Dr. Mills carefully scripted her June 21 public comments after knowing what she was told just three months before.
Today we learned that the Record Hill wind energy facility in Roxbury Maine received conditional approval by the Maine DEP to proceed. Based on the brief glimpse afforded us by the meeting minutes, we can only guess what the internal debates were like within ME-DEP prior to ‘green-lighting' this project. What is obvious, however, is that Maine has picked its sides, and we can expect Roxbury to be a repeat of Mars Hill.
The public push for renewable energy solutions has quickly filtered into the business and personal market and more and more communities are finding themselves confronted with some of the same land use issues we see with utility-scale turbines. Establishing appropriate siting standards to address minimum lot size, maximum tower heights, property line setbacks, and noise levels are essential in ensuring adjacent properties are not harmed and the health and safety of the public are maintained.
In a few instances, communities made the conscious decision to move slowly, enacting moratoria until reasonable regulatory protections are developed. But this is not the norm. Rather, we are finding communities racing to adopt land use laws aimed at inviting the turbines but with little regard for the impacts. In an extreme example, the State of New Hampshire applied the heavy-hand of "governance" and imposed standards on its communities that prohibited "unreasonable limits" on turbine installations related to tower height, setbacks, and noise. In every case where regulations were pushed through to accommodate turbine use, including in New Hampshire, Windaction.org found little justification for the standards adopted.
This reckless approach to permitting small wind systems was certain to lead to a court case, and that's exactly what happened in Libertyville, Illinois.
The residents of Libertyville, IL have been struggling since April with the decision made by Libertyville officials to permit Aldridge Electric to erect a 50 kilowatt Entegrity wind turbine to help power the business. The 120-foot structure is located as close as 250-feet1 to a residential property. Despite assertions by Aldridge Electric and officials of Libertyville that the turbine would be quiet and blade/shadow flicker would not be a problem, in fact, the noise and other nuisances have proven unbearable to the neighbors.
In May, Chicago Attorney Richard Porter filed this motion on behalf of the residents seeking a temporary and permanent shut down of the turbine. He argues in the filing that procedural errors made by Libertyville officials in approving the special permit violated his clients' rights of due process and that the operating turbine has, and continues to endanger the health, safety, comfort and general welfare of the public.
Lake County Judge Mitchell Hoffmann, in his initial ruling last June, granted the injunction to turn the turbine off. Last week Judge Hoffmann issued his final compromise ruling where he confirmed the turbine was negatively affecting the neighbors and ordered that turbine operation be restricted to weekdays only during the hours of 9am to 3pm.
This action by the Illinois court should be applauded.
It remains to be seen whether the Illinois courts would consider similar action if the case involved an industrial wind facility and the opportunity for millions in county revenues at stake. We may find out soon enough.
A group of Illinois residents is suing Dekalb County over its recent decision to permit NextEra (formerly FPL Energy) to construct and operate a massive industrial-scale wind energy facility adjacent to their homes. Although the Dekalb County residents are not living with the impacts of the towers yet, they, like their counterparts in Libertyville, have fully documented procedural irregularities that paved the way for the project's approval.
1 A resident of Libertyville supplied Windaction.org with the corrected distance of 250-feet.
This year, the City of Newburyport, Massachusetts paved the way for large-scale wind turbines within the city limits. A three-person subcommittee was formed in January, 2008 and charged with writing an ordinance governing the siting and construction of turbines.
The city's planning director, Nancy Colbert (no longer with the City), acknowledged in the press that "The structures can be obtrusive, and that is why it is even more important for the city to weigh in."
By March 5, according to minutes of the Newburyport Planning Board, the subcommittee reported "They are trying to fast track the zoning because they are expecting a proposal to be submitted soon and would like to have a zoning ordinance in place beforehand." By April, the City amended its zoning ordinance allowing turbines up to 400-feet in height with minimum setbacks of 150 feet from abutting property lines and 300-feet from residential zoning districts.
There's no question the ordinance was "fast-tracked", and perhaps tailor made to accommodate the expected proposal. In August, the City granted a special permit for Mark Richey to erect a 292-foot wind turbine located just 319-feet from the public pedestrian rail trail, 350-feet from heavily-traveled U.S. Route 1, and 800-feet from the nearest residence. Last month, Windaction.org highlighted some of the safety risks to the public should the Richey turbine be erected.
Immediately after the special permit was granted, two families living near the project site filed an appeal seeking to have the permit overturned. With the appeal still pending, Richey announced the turbine components had been secured and construction was to begin January 5th.
Last week, one City Councilor sent a letter to fellow councilors asking that they take another look at the wind turbine ordinance stating there is "public safety concern affecting the health and welfare of our citizens with respect to industrial wind turbines" over 100 feet high. In addition, a petition containing two-hundred and seventy signatures was submitted to the Council in support of the request and the majority of residents who spoke at the December 29 Council meeting pleaded for action.
At-large Councilor Donna Holaday informed the residents that the City's attorneys advised no action due to the pending appeal. Pointing the finger of blame at all residents Holaday added "You have made a choice to file a lawsuit naming the city. We need to wait." (Only two families filed the appeal.)
Holaday's statements were grossly out of line and should outrage all citizens of Newburyport, no matter where they stand on the wind turbine issue.
Further, using the ineffectual excuse of pending litigation as the reason for delaying another look at the ordinance is unsupportable. At the point when the application for a special permit was submitted to the City, all actions pertaining to approvals and subsequent appeals became subject to the laws then on the books. Whether the ordinance were to be changed, rescinded, or a moratorium enacted, there would be no impact on how the appeal was dealt with in the courts, with one important exception and perhaps the true reason the Council is uninterested in acting now.
If the courts were to find in favor of the appellants and overturn the City's decision on the special permit, Mr. Richey's application might be subject to any new zoning changes. If the City took the time to enact even the most minor changes aimed at protecting the public, such changes could outlaw the proposed turbine, and for good reason.
The State of New Hampshire, long recognized for respecting local governance, stepped over the bounds last month when the Governor signed into law HB 310, a statute oddly described as “allowing municipalities to regulate small wind energy systems”. In fact, the law is designed to deliberately remove authority from municipalities by establishing prohibitions on what a community can and cannot regulate.
HB 310 asserts that any “ordinances or regulations adopted by municipalities to regulate the installation and operation of small wind energy systems shall not unreasonably limit such installations or unreasonably hinder the performance of such installations”. The statute defines unreasonable limits as those including:
1) restricting tower heights through a generic ordinance that does not specifically address small wind energy systems.
2) establishing turbine setbacks from property lines larger than 1.5x the system height (tower plus blade).
3) defining noise level limits lower than 55 decibels, as measured at the property line, or not allowing for limit overages during utility outages and severe wind storms.
In an apparent attempt to show its “green” credentials, the State of New Hampshire demonstrated surprising ignorance of the facts and arrogance in its authority. Had the bill’s sponsors bothered to look, they would have found a large body of stories nationwide detailing cases where other States wrestled with small wind systems.
Consider these four recent news reports:
Coming soon to a neighbor near you, a 200-foot wind tower?
Wind turbines found to cause sickness
Neighbor's windmill lowers property value, civil board rules
Trees Block Solar Panels, and a Feud Ends in Court
The last article tells the story of a California man who sued his neighbors because their redwoods cast shadows on his solar panels. The court found in favor of the plaintiff and ordered the trees cut. Similar wording in HB 310 could easily create similar unfortunate circumstances.
Windaction.org has no issue with small wind systems if properly regulated and the health, safety, and welfare of surrounding property owners protected. As written, the State failed to comprehend the implications of HB 310 at the peril of New Hampshire residents. But worse, the State’s actions portend comparable reckless efforts to force industrial-scale wind turbines on rural New Hampshire communities.