Chapter 33 Wind Energy
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Chapter 33 Wind Energy
A. Introduction
It is clear that the United States as well as other countries around the world will increasingly be using wind energy to generate electricity. It is a relatively low-cost form of energy and will certainly help alleviate this country's dependence on foreign oil. In 2014 American wind farms generated just over 4.4 percent of U.S. electricity, powering the equivalent of over 16.7 million homes.1 That can be expected to grow over the next several years as the United States begins to realize wind energy's potential as a renewable energy source.
T. Boone Pickens, a billionaire and legend in the oil and gas business, has said that "the United States is the Saudi Arabia of wind power."2 He points out that 20 percent of America's electricity could come from wind. He further emphasizes that the development of wind power is an investment in America that holds the promise of creating high-skill jobs for thousands of Americans who would be employed in the manufacture of turbines and blades. A 2005 a Sanford University study found that there is enough wind power worldwide to satisfy global demand seven times over—even if only 20 percent of wind power could actually be captured.3 In 2008, American wind farms produced an estimated 48 billion kilowatt hours of energy.4 The American Wind Energy Association explains that one megawatt of electricity can power 250 to 300 homes. At the end of 2008 the power capacity was 1,000 megawatts in Illinois, with projects under construction that will provide an additional 171 megawatts. Illinois ranks eighth in the United States in wind existing capacity.
There is no question that wind energy will continue to be developed in the United States and that its growth and advancement will create jobs as well as an alternative and cheaper form of energy. For municipalities the issue becomes: How can it be of benefit to the community and what are the sources of local regulation?
On one level, alternative forms of energy such as wind energy can reduce costs for municipalities in the same way that costs can be reduced for homeowners and businesses. It simply becomes cheaper to operate, provided there is a legal mechanism for offsetting the costs between the electricity provided in the traditional manner from a utility company and the electricity provided by wind energy. Utility companies themselves will benefit from wind energy by having an alternative source of power.
On another level, small wind turbines can directly benefit the homeowner or business. In fact, small wind turbines were common on farms and ranches across the Midwestern United States before rural electrification programs. Wind generators power lights, radios, and kitchen appliances in rural areas. Further, small turbines contribute a larger public benefit by reducing demand on utility systems now supplied primarily by centralized fossil fuel plants.5 These rural systems are relatively small, but come with a high return in energy production. Specifically, small turbines or small wind energy conversion systems are variously described but generally consist of a wind turbine, one tower, support system, blades, associated controls, and conversion electronics. It has a rated capacity of 10 to 100 kilowatts and a height of 35 feet or more up to 100 or even 200 feet. Mini wind energy conversion systems are generally at a height of 35 feet or less and have a rated capacity of less than 10 kilowatts.
B. Specific Zoning Provisions
The following is a list of specific issues that are found in approving a special or conditional use for a wind energy system or a part of a zoning ordinance. In this case, we have used the Sangamon County Wind Energy Zoning Ordinance, which is found in Appendix B hereto as a sample ordinance for the practitioner.
1. Wind Energy Conversion System
The wind energy conversion system (WECS) is the system by which wind energy is converted to electricity. WECSs include wind turbines, towers, support systems, blades, associated controls, and conversion electronics with a rated capacity over 100 kilowatts.
2. Small Wind Energy Conversion System
The small wind energy conversion system (SWECS) is the system by which wind energy is converted to electricity. These systems include a wind turbine, one tower, support system, blades, associated controls, and conversion electronics with a rated capacity of 10 to 100 kilowatts or a system height of 35 feet or more.
3. Mini Wind Energy Conversion System
The mini wind energy conversion system (MINI WECS) is the system by which wind energy is converted to electricity. These systems include a wind turbine, one tower, support system, blades and associated controls, and conversion electronics that have a rated capacity of less than 10 kilowatts and a system height of less than 35 feet.
4. Setback Requirements
Setback requirements include setbacks from adjacent property lines and overhead utility or transmission lines, as well as setbacks from other buildings or structures, with at least the maximum height or height plus 10 percent. In Sangamon County the setback is limited to not more than 1.1 times the height of the wind tower.6
5. Noise Standards
The issue of noise is raised repeatedly in regard to the grant of special use or conditional use permits for wind farms, and a typical standard is 50 decibels when measured at any residential, school, hospital, church, or public library building.
6. Height Limitations
Especially insofar as there is an airport in the vicinity, there are height restrictions on wind farm developments. The Federal Aviation Administration has to approve the siting so there is no question of possible interference with the airport (499 feet in one ordinance).7
7. Road Issues
The right of the developer to use existing roads would seem clear, but many communities require road maintenance agreements as part of the overall wind farm agreement so that roads are repaired at the expense of the developer following the construction of the wind farm. See the sample road maintenance agreement in Appendix C.
8. Interconnections
The wind energy conversion system developer has to provide for interconnections to an electric transmission grid which might very well mean the electrical power lines exist along rights-of-way. This raises the separate issue of the right of the municipality to charge for the use of its rights-of-way. In this regard, see the Electricity Infrastructure and Maintenance Fee Law, 35 ILCS 645/5-1, et seq. The statute provides:
This law is intended to create a uniform system for the imposition and collection of fees associated with the privilege of using the public right of way for the delivery of electricity.8
In addition, 35 ILCS 645/5-4 provides:
A municipality shall be entitled to require a franchise contract from an electricity deliverer as a condition of allowing the electricity deliverer to use any portion of any public right of way within the municipality for the placement and maintenance of facilities for distributing, transmitting, or delivering electricity. Such franchise contract shall be established by ordinance and shall be valid and accepted in writing by the electricity deliverer.
One of the issues to be considered is what the municipality is actually approving. Specifically, does the grant of a zoning permit also include the transmission lines and their location? In most cases, the plan for the development of the wind farm also includes the location of power lines to be run on private property for extended distances. For example, "such transmission lines and appurtenances may also be located on any other real property for which licenses, easements, leases, rights-of-way, or similar land rights have been obtained by the developer." (This is in addition to the public right-of-way.)
9. Decommissioning
The issue of decommissioning has become an important one when negotiating an agreement with a developer. It involves removal of the turbines and equipment from the project site and restoring the site to its original condition. Generally issues arise as to posting of a bond or letter of credit and how much of a bond or a letter of credit has to be posted to ensure the cost of the decommissioning. Many developers maintain that the projected salvage value of the turbines and other equipment exceeds the cost of the decommissioning.
10. Property Value Guarantee Agreement
If a property owner decides to sell property, a qualified appraiser, or an average of two appraisers, should determine the asking price. The property should be listed with a broker and sold within 180 days at the asking price. If not, then it should be sold for any bona fide offer and the guarantor will make good the difference in the price.
The concern that property values will be adversely affected by wind energy facilities is often made in wind siting cases. This concern is not unreasonable given that the effect of wind energy facilities on property values has not been thoroughly investigated. However, there is a study by the Lawrence Berkeley National Laboratory entitled "The Impact of Wind Power Projects on Residential Property Values in the United States: A Multi-Site Hedonic Analysis" that concludes that neither a view of the wind facilities nor the distance of homes from those facilities has any consistent, measureable, or significant effect on the selling prices of those homes.9 In short, if negative impacts do exist they are either too small or infrequent to have any widespread statistically observable effect.
This valuation process is an evolving subject that requires thorough analysis by the practitioner along with the assistance of appraisal experts. The Berkeley study is a good starting point for the research.
11. Exclusionary Zoning Issues
Exclusionary zoning issues involve an effort to exclude wind energy systems. One of the most significant problems facing municipalities relates to exclusion of particular uses from a given district or...
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