The Butler County Board of Supervisors went on the record Monday in regard to recent regulations that six townships passed regarding wind energy development.
County Attorney Julie Reiter, who advised the board on the issue, said it was not a question of whether the County Board supported or opposed wind energy development.
The issue, she said at Monday's board meeting, was the opinion that she put forward two weeks ago: That the county, not the townships, has the authority to enact what amount to zoning regulations.
The County Board voted 6-1, with District 6 Supervisor Greg Janak voting no, to send the letters to board members of the county’s 17 townships. The regulations were passed in September by six townships: Franklin, Savannah, Linwood, Skull Creek, Oak Creek and Richardson.
Reiter's letter cited state statutes granting certain powers to electors of townships.
“The regulations passed by the electors in your township exceed these powers. They are in the nature of zoning regulations described under Neb. Rev. Stat. 23-114(2) in that they regulate height of structures, setbacks noise levels and uses of land,” Reiter wrote.
She added that counties, not townships have authority to adopt zoning regulations, and in addition, those regulations can only be enacted by a county board after it has appointed and approved and adopted a comprehensive development plan.
Butler County officials have worked on, but ultimately shelved a comprehensive plan and disbanded its planning commission.
The letter further states that the regulations cause confusion “to other entities that may be affected” and asks the townships to take action to void them.
The letter emphasized that the regulations, not the wind farms, were the issue of concern.
“The County Board respects your concerns regarding commercial wind energy conversion systems; however the regulations that have been passed are not enforceable under law. The board is hopeful that your concerns and interest of all parties involved can be addressed through mutual cooperation. The board is also willing to address your concerns with the wind farms that are seeking to locate in Butler County and help work toward an amicable solution that would be beneficial for all.”
Drawn up by the Bohemian Alps Wind Watchers, a group of concerned citizens, the regulations were proposed as safety rules. The first banned high voltage power lines under township roads. The second placed setback limits of 1,640 feet from wind turbines to the nearest township road and non-participating property. The second set of rules also placed lower overnight noise limits, as determined by a study, on the turbines.
Lincoln attorney Greg Barton, representing Linwood, Oak Creek and Richardson townships, presented the opposing view. He said the regulations were not a grab for the county’s authority.
“By enacting these regulations the townships were not trying to usurp or interfere with the county’s authority. I can tell you that all of these regulations were structurally patterned after (those of) Summit and Read townships in 2006 and 2007,” Barton said.
Read and Summit enacted regulations related to Butler County Dairy’s use of pipelines to pump liquid manure to center pivot operations for use in irrigation. The townships banned the pipelines under township roads. The regulations also included setbacks in them, Barton said.
“No one was claiming Read or Summit was claiming to usurp the county’s authority,” Barton said.
The Butler County Dairy vs Butler County case began as a case involving the dairy and Read Township, but Butler County was pulled in as an indispensable party because Dairy owner Todd Tuls asked the County Board to overrule the township’s ban on manure pipelines. The Supreme Court upheld the township’s rule and the dairy had to built a longer pipeline to go under the state right-of-way to the land across the road.
Barton noted that District Judge Mary C. Gilbride ruled the township’s rules were not illegal zoning, Barton said.
Bartin clarified that busy schedules had prevented a meeting between him and Reiter on the issue. And there was no intention to “start a fight,” he said, noting that lawyers often disagree on opinions.
“(Reiter) and I are just going to have to agree to disagree on this,” Barton said.
Still, the regulations stand approved by the six townships, Barton said.
“What is the end game here? The regulations have been enacted by vast majorities,” Barton said. “That train has left the station.”
He also said that the township boards are limited undoing the regulations. Policy votes only take place at the townships’ annual meetings in September. To repeal the rules, electors would have to bring forward a motion to do so, he said.
He also noted that the regulations were not “anti-wind farm.” The drafters of the regulations have stated that the rules are for safety of the township, its property and neighboring landowners and residents.
County Board Chairman Dave Mach asked how the regulations can single out one wind development. He also asked whether the noise limits put in place would affect farmers with noisy grain dryers and combines.
Bruce Bostelman, a member of the Wind Watchers, said that the state’s Right to Farm Act precludes such limits on farm machinery. The wind noise limits, Bostelman said, were derived from those proposed in Lancaster County and were based on health studies.
Supervisor Dave Potter, who works as a community planner, said that he questioned the legality of the ban on power lines under the township roads. He said lower levels of voltage can also be injurious. And he also didn’t see how electricity could be compared to the “injurious substance” of manure in the dairy court case.
Potter said, and Mach agreed, that the townships have always had the first authority governing utility lines under the road. Mach said the setbacks were the main problem for the board, not the electrical lines.
The ordinance regarding underground electric lines "may not fall within the power of the township,” she said.
Some supervisors said the letter was a “general” message to the townships about their authority, but Janak disagreed.
“When she asks them to void it. I don’t know if it is so general,” he said, adding that in the Oak Creek meeting he attended, the vote was overwhelmingly in favor of the regulations. The tally was 168-1 on one of the regulations.
Janak said he needed to represent his constituents on the matter.
Reiter said supervisors could represent their constituents, “under the powers you are granted.”
“This is the board that has the power to (regulate). Through the comprehensive plan,” she said.
Reiter addressed the “slippery slope” of townships enacting regulations.
“If you allow every township to start to enact (regulations). Who is going to enforce these things?”
Potter, citing his planning background, followed: “You don’t want that. You can’t have that.”
Before the board voted, Potter said that the township’s adoption of wind turbine rules was “sending a message to the county. Some folks want some rules and regulations.”
In each of the six townships, only a handful of people voted against the regulations.
NextEra Energy Resources is looking to build complex of up to 112 wind turbines across northern and eastern Butler County and western Saunders County. The company has acquired about a dozen easements on property so far.
Aside from NextEra, the regulations in Franklin Township also could affect Bluestem Energy, based in Omaha. The company proposes to build two turbines east of David City. Bluestem is developing the project under allowances made by the Nebraska Public Power District for a percentage of electricity to come from alternative or “green” sources.
Here are summaries of the regulations passed.
A ban on the placement of a high voltage (greater than 480 volts) power line under the town (township) property, including town roads, right-of-ways, and ditches within the township.
Each turbine will be no less than 1,640 feet from any property line of an owner not associated with the project. Each turbine will be no less than 1,640 feet from any town road.
The regulations also limit the amount of noise a turbine can generate between the hours of 7 a.m. and 10 p.m., and lower limits for the period between 10 p.m. and 7 a.m. The limits would be set by a pre-construction noise study.
The turbines also must meet federal aviation requirements, including lighting and interference issues. Strobe lighting should be avoided if alternative lighting is allowed.
The distance between tower supports bases must be spaced a minimum of five rotor diameters distance figured by the size of the largest rotor.
Each tower must have a decommissioning plan to outline the means, procedures and cost of removing the turbines and all related supporting infrastructure and a bond or equivalent enforceable resource to guarantee removal and restoration within a year of decommissioning.