Critique of wind farm law recently enacted by Town of Holland, Erie County, NY

Attorney Arthur J. Giacalone critiques the Wind Energy Regulation recently adopted by the Town of Holland in New York State. His comments, while specific to Holland's law, are applicable to other jurisdictions within New York State. Additionally, the issues he highlights apply to locations outside of the State.

As a resident of East Aurora, and a lawyer who has spent the past six years assisting homeowners throughout western and upstate New York concerned about the impact of wind farms, I read with interest the article in the March 26, 2009 East Aurora Advertiser entitled "Town of Holland Passes Wind Energy Regulations." What stood out the most to me in the story was the assertion by the Holland Town Supervisor, Michael Kasprzyk, that the new wind law was "neutral" and "did not unduly favor or unduly restrict" wind turbines, and the comment by Councilwoman Roberta Herr that it would "not be fair as a town to say no" to wind farms.

I decided to find out for myself just how "fair" and "neutral" Holland's "Wind Energy Conversion Systems" [WECS] law actually is, and closely reviewed its provisions. What I found was a set of regulations that is decidedly pro-wind, and that does not adequately protect either the health of residents who may find themselves living near 400-foot tall industrial-scale turbines, or the character of a rural and residential community that prides itself on its charming, small-town atmosphere.

There are two general observations I would like to share before addressing specific provisions in the local law. It appears that the Holland town board adopted its WECS law without first preparing a draft Environmental Impact Statement [EIS] and using the procedures mandated by the State Environmental Quality Review Act [SEQRA] to fully and objectively assess areas of environmental concern, potential mitigation measures, and alternatives to allowing industrial-scale wind farms. Common sense alone dictates that a town board should comprehensively examine the likely adverse impacts of large-scale wind farms before it decides whether to ban them from their community (as a growing number of towns have done), or to embrace them and establish specific criteria and standards to regulate such projects. It is truly unfair to the residents of a town to say "Yes" to wind farm development without first being fully informed of the pros and cons. As the elected officials in Hamlin, a Monroe County town located on Lake Ontario, learned this past January, it is also illegal to adopt a wind energy law without first taking a "hard look" at all relevant areas of environmental concern. Hamlin's wind law was challenged by a group of residents concerned about health issues, their town's rural character, and impacts on property values. A State Supreme Court Justice concluded that the Hamlin town board had failed to the "hard look" mandated by SEQRA and nullified the law (which, frankly, did a better job protecting the town's residents than Holland's WECS law).

A second observation I have concerns the zoning "tool" used by the Holland town board to regulate wind farms. Holland's WECS law seeks to control wind farms by way of a "special use permit." By selecting this relatively weak zoning mechanism rather than requiring a wind developer to obtain a rezoning, the Holland Town Board has significantly reduced its ability to say "No" to a future wind project. Under NYS zoning law, the inclusion of an activity in a zoning law as a special permit use is tantamount to a legislative finding that the permitted use is in harmony with a community's general zoning plan and will not adversely affect the neighborhood. If the standards spelled out in the zoning regulations are met, the applicant has a virtual right to the special use permit. In contrast, if a rezoning were required for a wind project, the town board would have far greater discretion in deciding whether the location and scale of a proposed wind farm were in the best interest of the community and consistent with the town's comprehensive plan. Armed with the broader discretion inherent in a rezoning decision, the town board would have greater flexibility in deciding whether to approve or deny the proposed wind farm.

The following is a sampling of specific inadequacies in Holland's WECS law that convince me that its provisions unduly favor wind farm development at the expense of the health and welfare of the town's residents:

1. Human health impacts. Holland's WECS law requires wind turbines to be setback a mere 1,000 feet from residences and 1.5 times the height of the towers from property lines. These minimum setbacks reflect a willingness to facilitate wind energy projects, not a desire to protect the wellbeing of town residents. The town board either chose to ignore, or did not know about, the substantial and growing body of literature from U.S. and international scientists concerning the potential health hazards associated with the operation of wind turbines near homes, schools, and other "sensitive receptors." For example:

A. Dr. Nina Pierpont, a physician and scientist residing in Franklin County, New York, has written extensively about "wind turbine syndrome," explaining the potential health effects associated with the audible and low-frequency noises (infrasound) created by wind turbines. She has chronicled a variety of symptoms that appear when wind farm operations start up, and continue until the patient is no longer living near a large-scale wind turbine, including chronic sleep problems; increased frequency and severity of headaches; dizziness, unsteadiness and nausea; exhaustion, anxiety, anger, irritability and depression; problems with concentration and learning; and, tinnitus (ringing in the ears). Dr. Pierpont recommends a minimum setback of 1 ΒΌ miles (6,600 feet) between industrial-scale wind turbines and residences, schools, etc.

B. A group of scientists from Portugal, led by Prof. Mariana Alves-Pereira and Dr. Nuno A.A. Castelo Branco, presented a report at the 2007 Wind Turbine Noise Conference in Lyon, France, expressing the conclusion that in-home infrasound and low frequency noise generated by wind turbines can lead to severe health problems, specifically vibroacoustic disease (VAD), involving a thickening and other damaging changes to specific tissues in the heart, lungs, and brain.

C. France's top medical society, the National Academy of Medicine, issued a report, entitled "Repercussions of wind turbine operations on human health," acknowledging that industrial wind turbines may pose a significant health hazard to people living nearby. The Academy recommends that the French government impose a moratorium on all wind turbine construction within a radius of 1.5 km (approximately 0.96 mile or 5,069 feet) of residences while further research is conducted on the health effects of wind turbine noise and infrasound.

2. Scenic vistas. Scenic views and vistas contribute significantly to Holland's charm and rural character. Despite that fact, the new law fails to protect in any meaningful way the aesthetic environment of importance to residents and tourists alike. The WECS law's "criteria for approval" make no mention of scenic vistas, and do nothing to prevent the installation of 400-foot turbines at locations where they would detract from or obscure views that contribute to the overall visual character of the town. In contrast, even the model wind energy law prepared by NYSERDA (a staunchly pro-wind State agency) includes the following protective provisions: "The tower shall not significantly impair a scenic vista or scenic corridor as identified in the Town's comprehensive plan or other published source." "No individual tower facility shall be installed at any location that would substantially detract from or block the view of the major portion of a recognized scenic vista, as viewed from any public road right-of-way or publicly-accessible parkland or open space within the Town." "Towers shall be designed and located to minimize adverse visual impacts from neighboring residential areas, to the greatest extent feasible."

3. Noise standards. According to the State's Dept. of Environmental Conservation (DEC) noise policy, humans find an increase in sound pressure between 5 to 10 decibels to be "intrusive", between 10 to 15 decibels "very noticeable", between 15 to 20 decibels "objectionable", and over 20 decibels "very objectionable to intolerable". The DEC noise policy also indicates that sound pressure level increases approaching 10 decibels result in a perceived doubling of loudness. In light of these human reactions to an increase in noise, the DEC recommends that in "non- industrial settings" (such as Holland's Residential-Agricultural zoning districts) new sources of noise should not be allowed to increase sound pressure by more than six decibels above the ambient or existing sound level. The Holland WECS law does appear to protect individuals while indoors at homes, schools, places of worship, etc., by limiting the audible noise created by the operation of a large-scale WECS to no more than 3 decibels above the existing sound level at a "sensitive noise receptor" within 2,500 feet of a turbine. However, no such protection is given to individuals outdoors at work or play (which might be fine if Holland residents and visitors were all perpetual couch potatoes). Audible noise due to wind turbine operations "at the boundary of the proposed project site" is allowed to reach 45 decibels at all times under Holland's WECS law, and may exceed 45 decibels for up to 5 minutes an hour, as long as the noise level does not exceed 50 decibels for any time period.

While the wind industry will insist that noise levels between 45 and 50 decibels are reasonable, the noise study done by the wind farm developer in the Wyoming County Town of Sheldon suggests otherwise. The ambient noise level in Sheldon, a rural and residential community that straddles Route 20A about 12 miles east of East Aurora, was measured at 14 "receptor" locations in the vicinity of the proposed wind farm. The pre-wind farm noise levels in Sheldon averaged 35 decibels during the nighttime and 40 decibels during the day. Using the DEC's "human reaction" continuum as a guide, and assuming the wind turbines would result in a noise level of 45 decibels, 5 of the 14 receptor locations in Sheldon would experience an increase in noise levels characterized as "intrusive" (that is, between 5 - 10 decibels), 4 of the 14 receptor locations would experience a "very noticeable" increase in noise levels (between 10 - 15 decibels), 4 of the 14 receptor locations would experience an "objectionable" increase in noise levels (between 15 - 20 decibels), and 1 of the 14 receptor locations would experience a "very objectionable to intolerable" increase in noise levels (over 20 decibels). Similar increases in noise levels could be expected in Holland, and would be unacceptable to many residents, adversely impacting health and the town's rural and residential character.

4. Information submitted by applicant. The information required of the applicant is not sufficient to allow the Town Board or public to adequately evaluate the potential impact of a proposed wind farm. For example:

A. The project's site plan is required to show surrounding land use and all off-site structures within 1,000 feet of the WECS, the noise analysis is required to show any "sensitive noise receptors" within 1,000 feet, and the applicant's noise survey and report is asked to analyze pre-existing ambient sound levels at affected sensitive noise receptors within 1,500 feet of each turbine. With such limited information, it is difficult to see how the town board will be in a position to determine whether the operation of the proposed wind turbines meets the "criteria for approval" that prohibits an increase in sound level of more than 3 decibels at any sensitive receptors within 2,500 feet of a turbine.

B. The WECS law does not require the applicant to provide any studies or reports evaluating the potential harm to property values of parcels and residences in close proximity to, or within the viewshed of, the wind turbines.

C. The geotechnical report submitted by the applicant is not required to include a groundwater assessment at each proposed tower location to determine the possible detrimental effects the tower construction may have on underground water sources. Neither is the applicant required to conduct a residential well survey for properties near the WECS site. Such a survey would allow the town board to determine if there are any potentially sensitive wells close to the construction areas, and would provide residents documentation of pre-construction conditions.

5. Conflict resolution. The WECS law adopted by the Holland town board does not include a procedure for the prompt and effective resolution of the conflicts that will certainly arise between town residents and the wind farm developer during the construction and operation stages of the wind energy project. Additionally, it gives the project operator much too long a period (a minimum of 90 days, and up to 180 days or longer) to remedy a violation of noise requirements or other mandated standards after receipt of a written notice from the town Code Enforcement Officer.

Holland's wind energy law does not appear to me to be a "neutral" or "fair" regulation of wind farms.

Town Of Holland Wind Law Critique 03 29 09

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MAR 29 2009
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