HomeMy Public PortalAbout140_041_F-GA Model Wind Ordinance Guidebook for Local Governments 1-11-11 DRAFT—DO NOT CITE OR CIRCULATE
The Georgia Model Wind Ordinance Guide The Georgia Model Wind Ordinance was crafted
for Local Governments: by the Georgia Wind Working Group to both
Land Based Wind Installations encourage the responsible development of wind
University of Georgia Land Use Clinic energy and protect local communities from
potential improper siting or installation of wind
Acknowledgements: energy. The process for developing a Model
Wind Ordinance for Georgia included research
The publication"The Georgia Model Wind and review of successful model wind ordinances
Ordinance Guide for Local Governments: Land from other U.S. states and Canadian provinces,
Based Wind Installations"was produced by the including other southeastern states. The Georgia
University of Georgia Land Use Clinic (LUC) Wind Working Group gives special
on request by the Georgia Wind Working acknowledgment to the following individuals for
Group. It was prepared by Andrew Pinson. their extensive work on the model wind
LUC Managing Attorney Jamie Baker Roskie ordinance: Teresa Eldredge,Mary Hallisey
provided guidance and editing. Guide Hunt,Mary Carr Bendeck,Rita Kilpatrick,
contributors and reviewers included Teresa Wayne Hildreth, Glenn Mauney, Paul Wolff,
Eldredge of TJ Schell,Mary Hallisey Hunt of Chrissy Marlowe and Lydia Doyle.
Georgia Tech's Strategic Energy Institute, and
Mary Carr Bendeck,Rita Kilpatrick,Anna
Cayce and Glenn Mauney of Southern Alliance These and other related activities of the Georgia
for Clean Energy. Wind Working Group were made possible by
funds from the U.S. Department of Energy's
Graphic images courtesy of the National Wind Powering America Initiative and the
Renewable Energy Laboratory and Anna Cayce Georgia Environmental Finance Authority.
of Southern Alliance for Clean Energy.
I. Introduction energy can provide a host of significant benefits
to a community. Some of these include:
The Georgia Wind Working Group, formed in • Addition of a clean, quiet, renewable, and
2005, has over 60 active members representing locally available resource to the local energy
utility companies, wind developers, government supply,' which reduces pressure on local
agencies, universities, and other stakeholders.' energy grid, increases local energy
Its aim is to educate Georgia's citizens and independence, and diversifies the energy
communities about the benefits and impacts of supply.8
wind as a contributor to the satisfaction of • An economic boost in the form of local jobs
Georgia's energy needs. To further this goal, the and increased tax revenue, especially for
Georgia Wind Working Group has drafted a rural areas in need of new industry.9
Model Wind Ordinance, a document intended to • Eligibility for federal grants and state tax
aid Georgia's local governments in adopting incentives for clean energy property.10
their own ordinances to promote responsible • Individual advantages such as personal
development of wind energy installed by energy independence and increased property
individuals2, government agencies, and values.11
businesses in their communities.3
Georgia's wind potential varies greatly, with
The purpose of this guidebook is to provide stronger winds found along mountain ridges, and
local governments a starting place and the in coastal regions.12 Even areas of lower wind
information necessary to craft an effective wind potential,however,may support residential scale
ordinance for their municipality.4 Recognizing wind power generators.13 Determining a
that each municipality in Georgia is unique, this municipality's wind potential is important for
guidebook explains the provisions of the Model deciding how comprehensive its wind ordinance
Wind Ordinance and then suggests ways to tailor needs to be. Wind maps are a good starting place
those provisions to a particular municipality's for determining an area's wind potential.14
needs and desires. Using the Model Wind Small residential wind turbine installations
Ordinance and the Georgia Wind Working generally present fewer regulatory issues than
Group's Guidebook to Wind Development,5 larger utility-scale wind projects although siting
local officials will have the tools to craft an in an area that is more densely populated may
effective wind ordinance. This will allow for require more interaction and communication
responsible development of wind energy and the with neighbors (both residential and business) to
economic and environmental benefits that come ensure goodwill.15
with it.
Why Enact a Wind Ordinance?
Wind Energy in Georgia
Wind is harnessed as an energy source through
wind turbines that produce electricity.6 Wind 'Id.;see also GWWG Wind Development Guidebook,supra note 1.
8 American Wind Energy Association,In the Public Interest:How
and Why to Permit for Small Wind Systems 4-5(2008)available at
Georgia Wind Working Group,A Guidebook to Wind http://www.awea.org/smallwind/pdf/InThePublicInterest.pdf
Development in Georgia(2009),available at [hereinafter AWEA Guidebook].
http://gawwg.org/images/UpdatedGuidebook November_2009.p 9 See GWWG Wind Development Guidebook,supra note 1.
df[hereinafter GWWG Wind Development Guidebook]. '4 Id.
2 See infra notes 22-29 and accompanying text. 11 See AWEA Guidebook,supra note 8,at 5.
3 Wind Working Group,Model Wind Ordinance(2009),available 12 Id.
at http://gawwg.org/images/Final-GA Model_Wind_Ordinance_9- 13 Id.
22-09.pdf[hereinafter Model Wind Ordinance]. 14 See,e.g.,AWS TrueWind,Georgia Wind Resource Map,
4 Although"municipality"usually connotes towns and cities,this http://gawwg.org/resources/georgiawindresourcemap.html;Nat'l
guidebook uses the term to mean any political subdivision in the Renewable Energy Lab.,Georgia Wind Map and Resource
state of Georgia with the authority to draft a wind ordinance, Potential,
including cities,towns,and counties. http://www.windpoweringamerica.gov/wind_resource_maps.asp?st
5 GWWG Wind Development Guidebook,supra note 1. ateab=ga.
6 Wind Working Group,Wind Energy in Georgia(2009),available 15 Discussion with Mary H.Hunt,Director,Special Projects,
at http://gawwg.org/images/GAWWG_Final_Fact_Sheet_11-6- Strategic Energy Institute,Georgia Institute of Technology,
06.pdf. February 10,2010.
2
Wind installations are rare in Georgia today. and hearings.20 Review of potential wind
While this may seem to indicate that regulation projects without standards tailored to wind
of wind facilities is not a pressing need, the lack power could also lead to unfair or inconsistent
of established facilities provides local permitting of those projects. These issues might
governments with the opportunity to be discourage residents and developers from trying
proactive in regulating the development of wind to install a wind facility in a community and thus
energy. Besides avoiding issues that may arise deprive that community of the many benefits
from dealing with nonconforming uses (i.e., that wind energy provides.
grandfathering already existing wind energy
facilities that do not conform to a newly enacted Without the protections that regulation provides,
regulation), a proactive approach to wind energy developers may install wind facilities that do not
regulation benefits local communities in several comport with a community's desired standards
ways. for safety, environmental impact, or aesthetics.
While existing environmental or zoning
Maximizes Benefits. Proactive regulation regulations may address these issues to some
maximizes the potential benefits that wind extent, many may contain loopholes that allow
energy can provide to a community. Established, for undesirable practices because wind energy
well-written and reasonable regulation allows has not been specifically addressed. Fixing these
for the responsible development of wind energy loopholes after offending facilities have already
and creates certainty for residents or developers been installed could entail costly and uncertain
deciding whether and where to invest in wind litigation.
energy.16 This certainty provides an incentive for
potential investors to place wind facilities in a Retains Local Autonomy. Some states have
community that has a wind ordinance rather than already enacted statewide wind regulation.21
one in which the potential for regulatory or While statewide regulation may provide
bureaucratic hurdles is higher, or at least less uniformity within a state, it may not cater to the
clear.'' Also, wind regulation can clarify a unique geography and community values of
community's vision for wind energy in its area.18 individual municipalities in the way that local
regulation can. Municipalities that enact their
Having wind regulation in place also allows own wind energy regulation will retain control
residents and developers to take advantage of over aspects of wind energy that uniquely
federal and state incentives available to investors impact the locality.
in clean energy property like wind energy
facilities.'9
How to Use This Guidebook
Minimizes Costs. Proactive wind regulation also This guidebook should be a helpful tool for
minimizes certain costs that could otherwise navigating the Ordinance. Part II of this
burden a community when investors choose a guidebook discusses the scope of the Model
site in that community for a wind project. Wind Ordinance and suggests general areas in
which tailoring the Ordinance to a specific
Providing a streamlined permitting process with municipality is especially important. Part III
clear guidelines can save significant time and "unpacks" the Model Wind Ordinance, breaking
money that both the local government and wind it down section by section. Each section of Part
investors might spend on case-by-case reviews III explains its corresponding section in the
Ordinance, along with that section's purpose.
Part III also provides more specific ideas about
16 AWEA Guidebook,supra note 8. tailoring the Model Wind Ordinance to a
"Id.at 5(Manufacturers ask:"In which state should I base my particular municipality. Finally, Part IV
operations?"The answer is:"States with the best policies.")
1s Id.
19 For examples of federal and state incentives for wind energy
development,see GWWG Wind Development Guidebook,supra 20 Id.
note 1,at§VI. 21 Id.
3
addresses additional considerations such as state turbines that can each power hundreds of
preemption and interconnection with local homes.24
power grids. These considerations are included
primarily for informative purposes, but some The Model Wind Ordinance was designed for
municipalities may need to look at them more multiple types of wind turbine applications.
closely. Wind turbine installations in Georgia are
expected to have stand-alone turbines in areas
Seeking Out Legal Counsel. While this that lack the wind potential for utility-scale
guidebook provides information for local installations. However, municipalities in some of
governments to start thinking about wind the mountainous and coastal areas of Georgia
regulation, neither this guidebook nor the Model may find that their wind potential is high enough
Wind Ordinance should be considered a to support utility-scale wind projects.25
substitute for quality legal counsel. A model
ordinance and guidebook cannot replace the Additional planning may be necessary to ensure
individualized aid and specialized knowledge of effective regulation of larger facilities. These
an attorney who can draft an ordinance using utility-scale installations present their own set of
language that effectuates intent and is consistent challenges because such facilities may be
with state and local law. subject to additional federal regulations and
guidelines.26 Therefore, the current Model
II.About the Model Wind Ordinance Ordinance may not comprehensively address all
associated issues. If larger scale wind facilities
The Model Wind Ordinance applies to all sizes are considered, research will be necessary to
of wind installations. Generally the size of wind ensure that local wind regulations comply and
turbine installations are determined by the on- comport with these federal laws.
site wind resource, the availability of land to site
turbines, financial resources, and aesthetics. Tailoring the Model Wind Ordinance
"Small wind" primarily includes wind turbines The Model Wind Ordinance is the product of
that residents, farmers, or business owners many hours of research and drafting, and is an
install as individual or accessory energy excellent example of an effective ordinance as
sources.22 "Community wind" describes is.27 However, the intent is for local officials to
projects that are locally owned developments ensure the ordinance meets the desires of their
arranged to optimize local benefits and respective community. To enact effective wind
whose owners can include an individual, a regulation, each locality should ensure that its
group of farmers, a cooperative, a municipal wind ordinance is both consistent with existing
utility, a Native American tribe, a school, or a state and local law and adapted to that
town or city. 23 "Utility-scale" or "commercial- municipality's particular needs and qualities.
scale wind" refers to wind energy projects
greater than 100 kW, and typically the 24 Windustry,Wind Basics:Know Your Options(2006)available
electricity generated is sold rather than used athttp://www.windustry.com/wind-basics/learn-about-wind-
energy/wind-basics-know-your-options/know-your-options
on-site.This category can include large arrays 25 Discussion with Mary H.Hunt,Director,Special Projects,
of turbines owned by large corporations or a Strategic Energy Institute,Georgia Institute of Technology, Mary
single locally-owned wind turbine greater Carr,SAGE, and Teresa Eldredge,Registered Landscape
Architect,President,TJ Schell,February 10,2010;see also AWS
than 100 kW in size. Typically, commercial- True Wind,supra note 15;Nat'l Renewable Energy Lab.,supra
scale wind energy developments use the large note 15.
26 Id.Some of these additional federal regulations may include the
Endangered Species Act,the Migratory Bird Treaty Act,and the
National Environmental Policy Act,as well as those promulgated
by the Federal Aviation Administration and the U.S.Fish and
Wildlife Service.
27 The Model Wind Ordinance was designed by specialists
22 AWEA Guidebook,supra note 8,at 2 including a registered landscape architect,a local government
23 Windustry,Wind Basics:Know Your Options(2006)available official,academic and legal specialists,renewable energy and wind
at http://www.windustry.com/wind-basics/learn-about-wind- consultants,NGO representatives,and various business
energy/wind-basics-know-your-options/know-your-options representatives.
4
While Part III of this guide will discuss tailoring permit for wind energy facilities seeking
the particular provisions of the Model Wind placement in certain zoning districts. It will be
Ordinance, certain general considerations are important to follow the procedures for notices
best addressed when considering the Ordinance and hearings required by the ZPL when issuing
as a whole: special use permits for the installation of
individual turbines and/or wind energy
Consistency with Georgia Law. When adopting facilities.33 These procedures include providing
any local ordinance, it is important to make sure for a hearing on the proposed action and
that state law does not preempt the proposed publication of notice for the hearing between
local regulation. Simply put, Georgia law fifteen and forty-five days prior to the hearing
preempts local regulations whenever the date.34 This notice and hearing requirement need
legislature has passed a general law regulating not be repeated in the ordinance, but some local
the same subject matter.28 Georgia has not governments may wish to include the
adopted any general laws regulating wind requirement as a reminder.
energy generally or the siting and installation of
individual turbines and /or wind energy General Consistency with Local Charter or
facilities. The only state laws dealing with wind Code. New ordinances should be consistent with
energy at all have to do with interconnection of existing local law. Before drafting any part of a
wind energy facilities to electric service wind ordinance, look to the local charter and
providers29 and tax credits for construction of code of ordinances for guidance. These
wind energy facilities.30 Neither of these laws documents generally provide procedures for
could be considered "general laws" regulating enacting and amending local ordinances,35
wind energy in that they only mention wind including structure and format requirements.36
energy as one type of energy eligible for
interconnection and tax credits. Thus, as long as Municipalities should also consider where to
a local government limits its wind ordinance to place the wind ordinance within the existing
wind energy (as opposed to also attempting to code. Municipal codes vary widely in scope,
regulate areas like water or air quality), state law complexity, and organization, so there is no one-
will almost certainly not preempt a newly size-fits-all answer to the question of where to
adopted wind ordinance. include a wind ordinance. This wind ordinance
essentially provides requirements for installing
While preemption by state law should not be an and maintaining wind energy facilities. Code
issue, Georgia law imposes an important chapters that a person might check for such
procedural requirement to keep in mind. The information might include "Environment,"
Georgia Zoning Procedures Law (ZPL) imposes "Land Use," or "Zoning." If the wind ordinance
notice and hearing requirements on all actions does not naturally fit in a similar category in a
leading to a "zoning decision,"31 which includes given code, consider giving it its own chapter.
issuance of special use permits.32 The Model
Wind Ordinance suggests requiring a special use If a municipality does have a zoning ordinance
or "Zoning" chapter, the Wind Working Group
recommends placing the wind ordinance near or
28 Franklin County v.Fieldale Farms Corp.,270 Ga.272,275
(1998)("The[uniformity clause in the Georgia Constitution]...
preclud[es]local or special laws when general laws exist on the
same subject").This"field preemption"is subject to an exception
that allows local governments to regulate in the otherwise a O.C.G.A.§36-66-4(2010).
preempted subject area"when general law authorizes the local 34 O.C.G.A.§36-66-4(a)(2010).
government to act and the local ordinance does not conflict with 35 Steve Lobertini,University of Tennessee Municipal Technical
general law."Id. Advisory Service,Ordinance Drafting and Enactment:Issues and
29 O.C.G.A.§46-3-56(2010). Recommendations 2(2007),
O.C.G.A.§48-7-29.14(2010). http://www.tmaa.us/pdfs/mtas_ord_drafting.pdf.
31 O.C.G.A.§36-66-4(2010). 36 Jamie Baker Roskie et.al.,Land Use Clinic,University of
32 O.C.G.A.§36-66-3(4)(E)(2010)(stating that a zoning decision Georgia,Drafting Local Ordinances for Natural Resource
includes"[t]he grant of a permit relating to a special use of Protection 4(2008);see,e.g.,Gainesville,Georgia Code of
property"). Ordinances,Ch.2,Art.4(2007).
5
in that ordinance or chapter.37 This is because to the state minimum standard codes as well as
the permitting system the Model Ordinance provisions unique to a particular municipality.
utilizes is grounded in zoning. If a municipality While the Model Wind Ordinance should not
lacks traditional zoning the wind ordinance will conflict with the standard building codes, local
need to be located in a different section. governments should make sure that (1) the
Model Wind Ordinance as written complies with
Beyond choosing a commonsense place for the any local additions to the standard codes and (2)
wind ordinance within the context of existing any changes the local government chooses to
zoning codes, it is important to make sure that make to the Model Wind Ordinance when
the words and phrases in the ordinance comport enacting its own wind ordinance also comply
with any existing definitions or uses of particular with the local building ordinance as a whole.
language in the code or chapter in which the Some potential conflict areas might include
ordinance is placed.38 Inconsistency in height restrictions, setbacks (if not found in a
definitions in a local code can lead to confusion municipality's zoning code), interconnection to
at best and inadvertent invalidation of existing the power grid, and aesthetic considerations.
law at worst.39 If the wind ordinance becomes
confusing because it is placed within a chapter Consistency with Zoning Ordinance. To limit
that provides conflicting definitions or confusion and ensure the effectiveness of a local
provisions, it is probably best to either place the wind ordinance, it should be consistent with the
ordinance in a different section or carefully go existing zoning code. Much of the Model Wind
through the ordinance and chapter to ensure Ordinance is couched in terms and concepts also
consistency. Keep in mind that the latter route commonly used in zoning, including accessory
may entail amendment of existing law, the uses, special use permits, and setbacks. The
procedure for which will also be governed by Model Wind Ordinance also uses differences in
the existing code or charter.40 zoning to determine which permits a particular
wind energy project will require.42 The
Consistency with Construction Codes. Because a Ordinance basis in zoning makes it easier to
wind energy facility requires construction and integrate into existing land use law in a
installation, it will need to conform to local municipality.
building ordinances. The Model Wind
Ordinance expressly requires code compliance. Some of these terms and concepts may be
A local wind ordinance itself, however, must defined or used differently in local zoning
also be consistent with existing local building ordinances. For example, the Wind Working
ordinances. Local building ordinances contain Group suggests considering wind energy
both standard and local components. Local facilities as an accessory use in certain zoning
building ordinances in the state of Georgia districts. Different zoning ordinances may define
generally incorporate eight mandatory and two an accessory use in different ways, some of
permissive standard construction codes.41 which may not comport with considering a wind
Beyond these standard codes, however, local energy facility as an accessory use without
codes may also include both local amendments amendment.43
37 E-mail from Teresa Eldredge,Registered Landscape Architect,
President,TJ Schell,to Andrew Pinson,Land Use Clinic, 42 Wind Working Group of Georgia,Model Wind Ordinance,§7
University of Georgia(Mar. 11,2010,08:51:33 EST)(on file with (2009).
author). 43 See,e.g.,Whitfield County,Ga.,Code of Ordinances,app.A,
38 W.Eskridge,Jr.&P.Frickey,Our Theory of Statutory Drafting: art.II,§2-2(2010)("Accessory use.A use of land or of a structure,
Cases and Materials on Legislation 831(1988). or portion thereof,customarily incidental to and subordinate to the
39 Baker Roskie,supra note 39,at 3. principal use of the land or structure and located or utilized upon
40 Id.at 4. the same lot or parcel as the principal use.").This example
41 O.C.G.A.§8-2-20(9)(B)(2010)(identifying ten"state minimum definition of accessory use from Whitfield County may not be
standard codes").The state minimum standard codes potentially interpreted as allowing wind energy facilities as an accessory use
applicable to wind energy facilities include the Georgia State to any principal use—wind energy facilities,it could be argued,are
Minimum Standard(GSMS)Building Code,the GSMS Fire Code, not"customarily incidental"to any use of land given that they are
the GSMS Mechanical Code,and the GSMS Electrical Code. a relatively new and uncommon land use.Moreover,common
6
energy facility in a given municipality.47 Thus,
Generally, inserting a new type of land use into which governmental body makes the final
an existing zoning ordinance will require decision on an application for installation of a
amendment of the zoning ordinance to ensure wind energy facility depends on which permit or
consistency and effectiveness. For example, the permits are required for the installation.
Model Wind Ordinance requires granting a Requiring a special use permit, for example,
special use permit to install wind energy would subject approval of a wind facility
facilities in certain zoning districts,44 but allows installation to the body in a municipality that
wind facilities as a permitted or accessory use in reviews applications for special use permits
other zoning districts. In order to effectuate this (typically the general legislative body).48
scheme, local governments need to amend many Requiring only a building permit (and the
provisions of an existing zoning ordinance to associated construction permits), would subject
include wind energy facilities as permitted, the application to the administrative approval
accessory, or special uses in particular districts. generally required for such permits.49 These
approval processes may differ in their standards
Finally, existing zoning ordinances may contain of review, procedures, and appeals processes.5°
substantive provisions that would restrict the Each of these differences should inform the
otherwise available options for constructing decision to require particular permits for wind
wind energy facilities under the Model Wind facilities.
Ordinance. For example, many zoning
ordinances include special regulations for Note that the decision to provide for staff versus
structures like communications towers and radio legislative approval of wind facilities involves a
antennae.45 These regulations govern height, tradeoff between control and efficiency.
setbacks, aesthetics, decommissioning, and other Keeping control of such decisions with the
areas that may conflict with similar provisions in general legislative body will likely lead to the
the Model Wind Ordinance.46 It will be higher costs of dealing with each application
important to consider such existing provisions individually (as well as the additional notice and
and decide whether and how to amend them to hearing required by the Georgia Zoning and
comport with a new local wind ordinance. Procedures Law).51 Delegating permit
Desired Degree of Delegation. Local 47 These permits primarily include building permits,required under
governments should consider their preferences local building codes,and special use permits,which may be
required in some or all zones in which wind energy facilities are to
for delegating the decision making power over be allowed,depending on the desires of a particular municipality.
permit applications for proposed wind energy 48 In many municipalities,the general legislative body is charged
facilities. While Part III discusses the specifics Ordinances,granting special use permits.See,e.g.,Atlanta,Ga.,Code of
Ordinances,Land Dev.Code,§ 16-25.003(2010)(requiring City
of the Model Wind Ordinance's proposed Council to grant special use permits);Athens-Clarke County,Ga.,
permitting process for wind energy facility Code of Ordinances,§9-20-1(2010)(requiring Mayor and
Commission to grant special use permits);Whitfield County,Ga.,
installation, a short explanation is necessary at Code of Ordinances,app.A,art.V,§1(2010)(requiring Board of
this point. In the Model Wind Ordinance, the Commissioners to approve special use permits).
49
permit application required for installation of see,e.g.,Athens-Clarke County,Ga.,Code of Ordinances,§7-
1-6(2010)(building official reviews and grants building permit
wind energy facilities is tied to the required issued after application review by building official);Whitfield,
permits applicable to construction of a wind County,Ga.,Code of Ordinances,§ch.5,art.I,§ 12(2010)
(building permit issued after application review by building
inspector).
50 Compare Athens-Clarke County,Ga.,Code of Ordinances,§7-
1-6(f)(1)(2010)(stating that chief building official shall issue
building permit upon satisfaction of conformance with building
perception of wind energy often includes wind farms in fields,not code and other pertinent laws or ordinances and that appeals of
single wind turbines helping to power a house in a neighborhood. decision are to be handled by construction board of appeals),with
44 Georgia Wind Working Group,Model Wind Ordinance,§7 Athens-Clarke County,Ga.,Code of Ordinances,§§9-20-5,9-4-8
(2009). (2010)(stating that special use permit shall be granted if proposed
45 See,e.g.,Whitfield County,Ga.,Code of Ordinances,app.A, use conforms to wide variety of approval conditions and that
art.VI(2010). appeal of decision is subject to judicial review).
46 See generally Whitfield County,Ga.,Code of Ordinances,app. 51 AWEA Guidebook,supra note 8,at 5("Case-by-case application
A,art.VI(2010). reviews and hearings cost time and money.Proactively planning
7
application review to staff or other officials will wind ordinance for local use to ensure a viable
be more efficient,52 but the general legislative approval process for siting wind energy
body will have less discretion to scrutinize structures and facilities.
projects that do not conform to their vision for
the community. Municipalities in coastal areas also may have
special concerns when drafting a wind
Finally, a simpler, streamlined approval process ordinance.55 Similar to mountainous regions in
will encourage installation of wind facilities, Georgia, coastal areas have the potential for
while a drawn out process requiring hearings small, community-based and utility-scale wind
and a decision by a city council or county installations because of good and consistent
commission will probably discourage wind resources. Aesthetics and viewsheds may
development of wind energy. be a concern to be considered in a wind
ordinance adopted for a coastal municipality.
Adaptation to Local Geography. A
municipality's local geography affects the Fit with Current and Desired Land Use. While
development of a wind ordinance in several wind energy provides many benefits to
ways. First, different areas of Georgia differ communities, like any proposed land use, it must
significantly in their wind potential—that is, be situated within a municipality's broader
their capacity for generating wind power.53 vision for the community. When deciding in
Municipalities with greater wind potential will what zones or areas of a community to allow
need to consider more closely whether they want certain classes of wind energy facilities,
to include additional provisions that better reviewers should consider this question
regulate utility-scale and large commercial-scale alongside both a zoning map and the
wind facilities that may be feasible in areas of municipality's comprehensive plan. While wind
greater wind potential. turbines are relatively unobtrusive in the right
settings, foresight is required to ensure that
Second, municipalities located in areas with turbines built in the future will fit in with their
certain types of geography may need to make surroundings. For example, if a town has a
accommodations to protect features with current or proposed historic district, wind
particular aesthetic or community value. For turbines may not comport with the goal of
example, municipalities in the more preserving the district's historic character, or, if
mountainous areas of Georgia will need to take a future land use map envisions residential
special care to ensure that wind energy develops development in an area that is currently
in accordance with their uses of and desires for agricultural, it may be prudent to either limit the
those areas. Mountainous areas can have classes of wind energy facilities that can be
relatively high wind potential, which may make installed in that area to prevent problems down
them good sites for wind energy facilities.54 the road or to incorporate wind facilities within
Therefore, it is important for municipalities the earliest stages of the proposed community's
adopting a wind ordinance in these areas to layout and design.
consider both the specific community benefits
and potential opposition when tailoring their The subjects discussed above are a few of the
general considerations to keep in mind when
for small wind installations can be a rewarding investment."). planning to adopt a local wind ordinance. The
52 rd. next Part focuses on the details of the Model
53 GWWG Wind Development Guidebook,supra note 1,at§I;see Wind Ordinance to provide guidance and
also AWS True Wind,supra note 15;Nat'l Renewable Energy
Lab.,supra note 15. suggestions for how to use it to draft a local
54 GWWG Wind Development Guidebook,supra note 1,at§I ordinance.
("Strong,frequent winds are ideal for generating electricity.").But
see Windustry,Know Your Land,
http://www.windustry.com/wind-basics/learn-about-wind- 55 Discussion with Mary H.Hunt,Director,Special Projects,
energy/wind-basics-know-your-land/know-your-land(last visited Strategic Energy Institute,Georgia Institute of Technology,
April 7,2010)("Just because a site is windy does not necessarily February 10,2010.For a wind map detailing wind potential in
mean it is suitable for wind turbines."). Georgia,see AWS TrueWind,supra note 12.
8
local governing body's findings of fact and
III.Unpacking the Model Wind Ordinance intent may go a long way towards preventing
litigation as well as defending any lawsuits that
The previous Parts of this guidebook discussed may arise with respect to the ordinance.59
some of the general considerations for a local
government and community when determining Tailoring. When adapting this resolution to a
what sort of wind ordinance to adopt and how to specific locality, it is important to ensure
address the community's unique characteristics compliance with local rules and customs for
and laws. This Part focuses on the Model Wind adopting ordinances.60 In particular, documents
Ordinance, which the Georgia Wind Working like city charters may contain required
Group crafted to give municipalities a starting procedures for adopting resolutions.61 Beyond
point for adopting their own ordinances. This procedural requirements, it may be beneficial to
Part proceeds section by section through the include community-specific findings, including
Model Wind Ordinance and provides an findings about wind potential and specific
explanation of each provision, the policy benefits to the local community. Disclosing such
justifications behind the provisions, and findings (or even citing commissioned reports
suggestions for tailoring specific provisions to a that include these findings) will bolster a local
particular municipality. wind ordinance's legitimacy.
Note that some municipalities and counties
Preamble(Resolution) require an enacting clause that gives an
ordinance full force and effect.62 If required, the
The Model Wind Ordinance begins with a operative language for the clause will generally
preamble in the form of a resolution. This be given by the provision requiring it.63 Such a
resolution, like most preambles, declares the clause should be included if required.
findings, reasons, and purposes behind the
Model Wind Ordinance.56 Essentially, this Title and Purpose
resolution states that (1) the local government
acknowledges that producing electricity Many local codes require ordinances to include
efficiently without negative externalities is in the both a title and a purpose.64 These codes also
public interest, (2) wind power is one such limit the substance of an ordinance to the subject
method of producing electricity, (3) the matter contained in the title.65 The Model Wind
municipality has wind resources, and (4) the Ordinance's title, "Wind Energy Facility
municipality is committed to encouraging wind Ordinance for [county or municipality]" should
power. suffice unless the local governing authority
Rationale. By making official statements of
prohibiting adult entertainment in places where alcoholic
purpose and intent, the resolution demonstrates beverages were served).
that the local government has put thought into 59 Baker Roskie,supra note 39,at 7.This is particularly true with
the new ordinance and has sound reasons for respect to claims of substantive due process violations.Providing
57 evidence in the preamble that the governing authority had a
adopting it. During litigation, courts may look rational basis for adopting an ordinance is greatly beneficial for
to such resolutions to determine the governing ensuring compliance with substantive due process.Id.
authority's intent as an aid to interpreting the 6o Baker si n Roskie,with note Baker Rat oskie,4.
Discussion with Jamie Baker Roskie,Director,Land Use Clinic,
ordinance.58 Having a clear statement of the University of Georgia,February 10,2010.
62 Baker Roskie,supra note 39,at 4;see,e.g.,Suwanee,Ga.,Code
of Ordinances,ch.2,art.2,§2-114(2010);Snellville,Ga.,Code
of Ordinances,ch.2,art.2,§2-114(2010).
56 Lobertini,supra note 38,at 5. 63 See,e.g.,Suwanee,Ga.,Code of Ordinances,ch.2,art.2,§2-
57 Discussion with Teresa Eldredge,Registered Landscape 114(2010);Snellville,Ga.,Code of Ordinances,ch.2,art.2,§2-
Architect,President,TJ Schell,February 10,2010. 114(2010).
58 Lobertini,supra note 28,at 5;see,e.g.,Oasis Goodtime 64 See,e.g.,Suwanee,Ga.,Code of Ordinances,ch.2,art.2,§2-
Emporium I,Inc.v.DeKalb County,272 Ga.887(2000)(looking 114(2010);Snellville,Ga.,Code of Ordinances,ch.2,art.2,§2-
to preamble of DeKalb County ordinance to discern findings of 114(2010).
fact upon which Board of Commissioners relied to enact statute 65 See,e.g.,Gainesville,Ga.,Charter,ch.2,art.4,§2.40(2010).
9
decides to include in the wind ordinance
provisions that regulate subject areas beyond Facility Classifications. The Model Wind
wind energy facilities. Ordinance breaks down Wind Energy Facilities
into four classifications based on the rated
The Purpose in the Model Wind Ordinance is energy capacity of a facility's turbine(s). Class I
straightforward and contains two parts. First, it Systems are single-turbine systems rated at less
states the obvious intent of the ordinance, which than 20 kilowatts (kW). This classification
is "to provide guidance for the regulation of the encompasses the vast majority of small wind
construction and operation of Wind Energy systems.69 Class II Systems are also single-
Facilities." Second, it states that the regulation turbine systems, but those rated at 20-100 kW.
subjects construction and operation of the wind 100 kW systems are generally considered the
facilities "to reasonable conditions that will upper limit of"small wind" systems.70 Class III
protect the environment, public health, safety, and IV Systems are single or multiple turbine
and welfare." This latter clause invokes the systems rated from 100kW to over 2 MW. These
police power of the county or municipality, latter two Classes are meant to encompass
which gives the local government the authority utility-scale and large commercial-scale wind
to enact laws like the wind ordinance.66 facilities.
Definitions These classifications separate wind turbines
based on generator size, which is a good proxy
While the definitions provided in the Model for the scale of use for which a particular
Wind Ordinance are straightforward, the generator is meant.71 A turbine with a smaller
Definitions section is quite important to an generator (Class I or Class II) will more likely
effective wind ordinance. In general, definitions be used for non-utility applications such as
make an ordinance less ambiguous and easier to providing power for a home or retail store, while
read and understand.67 The definitions found in turbines with much larger generators will likely
the Model Wind Ordinance use the defined be used for utility-scale or large commercial-
words within the ordinance in a way that is both scale wind generation.72 These classifications,
consistent and logical. Before making any however, do not necessarily separate wind
changes to these definitions, drafters should turbines based on height.73 This is important to
consider the impact that such changes would note because these classifications are used in the
have for each instance in which the defined wind ordinance to determine both the setbacks
word is used in the ordinance. required for wind turbines (Section 5A of the
Model Wind Ordinance) and whether the
As with all language in a new ordinance, it is installation of particular turbines will require
important to make sure that the definitions found
in the wind ordinance do not conflict with those
69 American Wind Energy Association,Small Wind Factsheet,
found in other code sections. A simple way to http://www.awes.org/smallwind/toolbox2/factsheet what is small
prevent conflict with definitions or language in wind.html(last visited April 25,2010)(noting that the size of
other code sections might be to include language turbine required to power a home can range from 2 kW to 10 kW).
70 American Wind Energy Association,Small Wind,
at the beginning of the Definitions section such http://www.awea.org/smallwind/(last visited April 26,2010)
as "for the purposes of the provisions of the ("[S]mall wind turbines...are defined as having rated capacities
of 100 kilowatts and less....").
[insert municipality] wind ordinance, certain 71 E-mail from Mary H.Hunt,Director,Special Projects,Strategic
terms shall be defined as follows."68 Energy Institute,Georgia Institute of Technology,to Andrew
Pinson,student,Land Use Clinic,University of Georgia School of
Law,(Apr.26,10:50 AM EDT).
66 Regulation of wind energy facilities is clearly a justified exercise 72 Windustry,Wind Basics:Know Your Options(2006)available
of this police power given that the Georgia Supreme Court stated at http://www.windustry.com/wind-basics/learn-about-wind-
that even aesthetic purposes could justify exercise of the police energy/wind-basics-know-your-options/know-your-options
power.City of Smyrna v.Parks,242 S.E.2d.73(1978). 73 American Wind Energy Association,Small Wind Factsheet,
'Baker Roskie,supra note 39,at 4. http://www.awea.org/smallwind/toolbox2/factsheet what is small
68 See,e.g.,Ashburn,Ga.,Code of Ordinances,appx.A,§2("For wind.html(last visited April 25,2010)(noting that the size of
the purposes of these regulations,certain terms or words used turbine required to power a home can range from 2 kW to 10 kW).
herein shall be defined as follows:"). ("Generator size and tower height are not generally related.").
10
special use permits (Section 7). Thus, when codes are required to incorporate the applicable
deciding how to calibrate the setback and permit state and international codes, this effectively
requirements based on these classifications, requires conformance with the applicable local
local governments should realize, for example, construction codes.78 Applicable codes may
that Class I Systems could still reach heights of include general building codes as well as
140 feet, even if only powering a home.74 electrical codes, fire codes, and mechanical
codes. If a municipality has specific codes that it
Installation and Design considers particularly relevant or applicable to
installation of wind turbines, it should mention
The Installation and Design section of the Model these codes under this section, especially if these
Wind Ordinance governs the installation of wind codes are not well known or are unique to the
energy facilities as well as their electrical and municipality. This will notify potential investors
mechanical components and their visual in wind energy that a municipality has special
appearance. codes with which wind facilities must comply.
Section 4A requires installation and design of Section 4C standardizes the visual appearance of
the Wind Energy Facility to conform to wind energy facilities. Specifically it provides
"applicable industry standards." For small wind standards for finish, color, lighting, and displays
installations, the primary standards are those of of advertising. These requirements are meant to
the American National Standards Institute reduce the aesthetic impact of wind energy
(ANSI).75 The American Wind Energy facilities.79 Galvanization inhibits rust. Colors
Association (AWEA) also recently promulgated like white and gray blend well into the
a standard specific to small wind turbines that surrounding environment.80 The prohibition
will be submitted to ANSI for adoption as an against most advertising, including flags and
American National Standard.76 Another resource streamers, is also intended to help wind turbines
for small wind turbines is the Small Wind blend into their surroundings.81
Certification Council which is an independent
certification body that ensures that small wind Because these visual appearance requirements
turbines meet or exceed the AWEA Small Wind stem from aesthetic concerns, they are
Turbine Performance and Safety Standard. necessarily subjective assessments of visual
Larger-scale commercial wind farms would also appeal. Some communities may wish to adjust
need to conform to occupational standards like or augment these requirements.82 Such changes,
those of the Occupational Safety and Health however, might discourage installation of wind
Administration." energy facilities. For example, "monopole"
turbine towers are generally sleeker and less
Section 4B requires conformance with relevant noticeable than lattice-style towers.83 Although
local, state and national codes. Because local monopole towers can cost significantly more
than other types of towers; they have lower rates
74 See,e.g.,AWEA Guidebook,supra note 8,at 2(showing small of failure due to fatigue; and they do not provide
wind towers ranging from 30 to 140 feet tall).
75 American Wind Energy Association,Small Wind,U.S.Industry
Consensus Standards Development Activities,
http://www.awea.org/smaliwind/standards.html(last visited April 78 See supra note 44 and accompanying text(discussing local,
16,2010). state,and international building codes).
AWEA Small Wind Turbine Performance and Safety Standard. 7°Email from Mary H.Hunt,Director,Special Projects,Strategic
This standard was created to"provide a common North American Energy Institute,Georgia Institute of Technology,to Andrew
standard for reporting turbine energy and sound performance,and Pinson,Land Use Clinic,University of Georgia(April 7,2010,
help small wind technology gain mainstream acceptance." 04:06:39 PM EDT).
American Wind Energy Association,Small Wind,U.S.Industry 8°Cf.AWEA Guidebook,supra note 8,at 10("Studies show that
Consensus Standards Development Activities, turbines best blend into the sky when painted the factory-default
http://www.awea.org/smallwind/standards.html.The standard is color.")Requiring owners to paint turbines colors like green or
going to be submitted to ANSI as an American National Standard, blue to match other parts of the environment"would actually make
but is not yet a binding standard.Id it stand out more and should be avoided."Id.
77 Discussion with Mary H.Hunt,Director,Special Projects, 8'Id.
Strategic Energy Institute,Georgia Institute of Technology, 82 AWEA Guidebook,supra note 8,at 10.
February 10,2010. 83 Id.
11
areas that can be used by nesting birds as lattice elevation."89 These setbacks range from 0 to 1.5
towers. This additional cost might cause times the Wind Turbine Height depending on the
potential investors in wind energy to place their Wind Energy Facility Class (I, II, III, or IV) as
turbines in an area that does not require this well as from which category of property (e.g.,
additional cost.84 Therefore, local governments Occupied Buildings on Participating Landowner
should think carefully about the potential Property, Public Roads, etc.) the setback is
consequences of adopting burdensome aesthetic measured. For example, according to the setback
restrictions to the extent that they want to chart provided in the Model Wind Ordinance, a
maximize wind development in their Class I Wind Energy Facility with a Wind
communities. Turbine Height of 40 feet would need to be
positioned at least 44 feet from a Non-
The height of wind turbines may also be a Participating Landowner's property line and at
concern to some community members because least 60 feet from any Occupied Buildings on
height allows turbines to be seen from greater that Non-Participating Landowner's property.
distances. However, "a tall tower is the single
most important factor in the economic viability Calculation and Purpose. These setbacks are
of a small wind system."85 Taller towers can minimum requirements set primarily for
exponentially increase a turbine's efficiency, insurance and safety purposes.90 In other words,
creating more and cheaper energy.86 Thus, the setbacks are calculated to protect adjacent
setting height restrictions on wind turbines could property—that of both Participating and Non-
seriously discourage wind development in a Participating Landowners—from problems that
community.87 AWEA recommends that "height may arise from potential damage caused by the
restrictions, if any, should only reflect sound and wind turbine and/or wind facilities.
safety concerns.i88 Thus, the Model Wind
Ordinance does not contain explicit height Because these setbacks are minimum
restrictions—height is only limited indirectly requirements, some municipalities may want to
through setbacks, discussed in the next section. increase the setbacks to mitigate the aesthetic
impact of turbines and reduce the possibility of
Setbacks noise and shadow flicker issues. On the other
hand, significant increases in setback
Section 5 of the Model Wind Ordinance requirements might discourage use of wind
provides setback requirements for Wind Energy turbines, particularly in residential and
Facilities. The setbacks (minimum distances commercial areas. Again, the turbine height is of
between a Wind Energy Facility and certain critical importance for efficient energy
property lines and buildings) required for a generation.91 This fact, combined with the
particular wind turbine correspond to the Wind relatively smaller sizes of residential and
Turbine Height,which is "the distance measured commercial lots (as opposed to agricultural
from the grade at the center of the tower to the tracts), may effectively prohibit installation of
highest point of the turbine rotor or tip of the wind turbines on many residential and
turbine blade when it reaches its highest commercial properties. Of course, if a
municipality would prefer to limit wind turbine
installation in this manner, it can, but
consequences of discouraging wind energy
84 Id. should be noted when considering the decision
85 Id.at 6. to increase the setback requirements.
"Id.
n Id.at 6-7("`Hiding'a turbine from neighbors using a shorter
tower almost always means hiding it from the wind,too.").Also
note that the setback restrictions contained in the Model Wind
Ordinance should effectively limit the height of towers, n Wind Working Group of Georgia,Model Wind Ordinance,§3
particularly on smaller residential lots.See infra note 97 and (2009).
accompanying text(noting that setbacks correspond to tower 90 Discussion with Teresa Eldredge,Registered Landscape
height). Architect,President,TJ Schell,February 10,2010.
88 AWEA Guidebook,supra note 8,at 7. 91 See supra notes 92-93 and accompanying text.
12
Consistency with Existing Setback When adopting this noise provision, local
Requirements. Many municipalities will already governments should ensure that it is consistent
have setback requirements as part of their zoning with other noise ordinances found in the local
or other land use ordinances.92 Given the height code. A municipality's noise ordinance may not
of most wind turbines, the setback requirements address noise produced by machinery like wind
found in the Model Wind Ordinance may not turbines,99 but if it does, it may conflict with the
conflict with existing setback requirements. noise provision found in the Model Wind
Ordinance and one of the provisions would need
Noise and Shadow Flicker to be amended for consistency.
Section 6 of the Model Wind Ordinance limits Shadow Flicker. Shadow flicker occurs when
noise and shadow flicker of wind energy low level sunlight passes through the moving
facilities. rotor of wind turbines, causing visible
intermittent shadows on the ground or
Noise. Section 6A limits audible sound from structures.100 This effect is rare even with utility-
Wind Energy Facilities to fifty-five (55) dBA, as scale wind turbines, which spin more slowly,
measured at the property line of a Non- and almost nonexistent with small wind
Participating Landowner.93 The 55 dBA limit turbines, which probably will not spin slowly
represents a mid-range average taken from enough to cause significant shadow flicker.101
several wind ordinances from other The Model Wind Ordinance's setback
jurisdictions.94 Modern wind turbines, requirements should also mitigate this
particularly those used for small wind facilities, concern.102
are very efficient and should have no problem
operating well below this threshold,95 Still, for the rare case that shadow flicker may
particularly given the height of most turbines become an issue, Section 6B of the Model Wind
and the setback requirements found in the Model Ordinance limits shadow flicker cast on an
Wind Ordinance.96 In fact, many noise issues Occupied Building on a Non-Participating
that may arise with small wind turbines might be Landowner's property to thirty(30)hours per
caused by improper installation, lack of regular year. Shadow calculators and professional wind
maintenance of the turbines97 or utility software can help estimate potential shadow
blackouts.98 flicker,but these can be expensive and require
technical training for accurate results. For most
residential and some community wind projects,
their use is probably unnecessary. While not
92 See,e.g.,Catoosa County,Ga.,Official Code,appx.B,art.VIII, likely to be a problem, a shadow flicker study
§8-1(2010)(establishing"area,yard,and height requirements" should be a requirement for any wind farm or
according to zoning districts). when a single turbine is to be installed within
93 55 dBA equates to approximately the sound level of normal 103
speech at a distance of three feet indoors,or the sound level of a 1000 feet of an occupied building.
quiet urban daytime or commercial area outdoors.Jacques
Whitford,Model Wind Turbine By-laws and Best Practices for Permit Requirement-Generally
Nova Scotia Municipalities 19(2008).
94 E-mail from Paul Quinlan,North Carolina Sustainable Energy
Association,to Andrew Pinson,University of Georgia Land Use
Clinic(April 13,2010,12:22:27 PM EDT)(on file with author).
95 GWWG Wind Development Guidebook,supra note 1("As wind
turbines have become more efficient,more of the wind is
converted into rotational torque and less into acoustic noise.");see 99 See,e.g.,Athens-Clarke County,Ga.,Code of Ordinances,§3-
also AWEA Guidebook,supra note 8,at 11. 5-24(2010)(restricting only noise from mechanical sound-making
96 Id.("Sound decreases significantly with distance from the source devices,human-produced sound,commercial advertising,and
(including height—another good reason to allow tall towers).Note party noise).
that diluting noise is another effect of not placing burdensome 100 AWEA Guidebook,supra note 8,at 17.
height restrictions on wind turbines.Id.at 6. 101 Id.
97 Interview with Mary H.Hunt,Director,Special Projects, 102 Id.
Strategic Energy Institute,Georgia Institute of Technology, 103 For background on shadow flicker relevancy for distances less
February 10,2010. than 1000 feet from a building,see Wind Energy Engineering,
9s AWEA Guidebook,supra note 8,at 11. Pramad Jain,2010,at 258.
13
The Model Wind Ordinance primarily regulates permit system is designed in this fashion to
installation of wind facilities through its permit allow local governments to calibrate the degree
requirement. Section 7A notes that "[p]ermits of oversight and control they have over the
are required for building, special use, and other installation of wind facilities. For example, if a
"action" based activity tied to this ordinance" local government foresees no issues with
and requires the Facility Owner or Operator to installation of a Class I System to power a
have been issued a permit to construct a Wind farmhouse seated on land wholly within an
Energy Facility. This raises an important point: agricultural zoning district, it can choose to
to regulate wind energy, the Model Wind require only a building permit. For additional
ordinance uses permits that a locality already oversight and control over installation of wind
requires. These permits include building facilities that potentially present additional
permits—required by local governments to complexity or fit less ideally with their
enforce both local building laws and Georgia's surroundings, (e.g. a Class III System to be
state minimum standard codes104—and special installed in a commercial zoning district), the
use permits required under a locality's zoning local government can additionally require a
ordinance. This section will first describe how special use permit.
this permitting process works. It will then point
out things to consider with respect to a locality's The Sample Permitted Use Table found in
existing building permit (building code) and Section 7 of the Model Wind Ordinance
special use permit(zoning) systems. illustrates this two-tiered system. For example,
according to the sample table, Class I Wind
The Permit System. The Model Wind Ordinance Energy Facilities to be sited in an Agricultural
provides for a permit system that requires one or zoning district would only require a building
more permits. First, all Wind Energy Facilities permit. Class III facilities to be sited in a
require a local building permit. To obtain a Residential district, on the other hand, would
building permit, the Facility Owner or Operator also require a special use permit.
will need to file the permit application required
by Section 7D of the wind ordinance (discussed One of the most important steps a local
below) and the application will undergo the government must take in adapting the Model
review process prescribed by the municipality's Wind Ordinance is to tailor this permitted use
building code (just like any other building table (and the associated building code and
permit). This review process would likely be an zoning ordinance) to their local codes. First,
administrative, staff-driven approval process.105 each municipality's own zoning districts should
be substituted for the example districts. Then,
Second,Wind Energy Facilities may also require the municipality should consider each of its
a special use permit depending on (1) the zoning districts and decide which class(es) of
classification of the Wind Energy Facility and wind turbines will conform to those zoning
(2) the zoning district in which a proposed Wind districts. In making this decision, the local
Energy Facility is to be sited. Unlike building government should first consider its land use
permits, special use permits generally require goals. It should review the current permitted
approval by the local legislative body (i.e., the uses for each zoning district and the
city council or county commission).106 The municipality's long-term land use plans and then
decide how well a particular class of wind
turbine would fit in each zoning district.
104 See O.C.G.A.§8-2-25(a)(2010)(authorizing governing
authority of any municipality or county to enforce state minimum
standard codes). In creating their permitted use table, local
105 See,e.g.,Athens-Clarke County,Ga.,Code of Ordinances,§7- governments should also consider the extent of
1-6(2010)(building official reviews and grants building permit their commitment to encouraging wind energy
issued after application review by building official);Whitfield,
County,Ga.,Code of Ordinances,§ch.5,art.1,§12(2010) development and the degree of control they
(building permit issued after application review by building desire over the process. Investors will be more
inspector).
06 see supra note 51 and accompanying text. likely to promote wind energy if the approval
14
process is painless and not too risky. The facilities. Most localities likely require building
administrative approval typically required for a permits for all "buildings" and "structures,"107
building permit will likely be quicker and more and a wind turbine would probably be
certain than the legislative approval needed for a considered a"structure"under the plain meaning
special use permit. Thus, listing a particular of the word. However, a municipality can more
class of wind turbine as a permitted use in a clearly signal that a building permit is required
zoning district may encourage installation in that for wind turbines by inserting language into the
zoning district. Requiring a special use permit building codes expressly requiring a building
may provide the local government with more permit for "Wind Energy Facilities" as defined
control over each particular wind energy in the wind ordinance.
installation, but it makes the approval process a
little riskier and less streamlined for potential Zoning Ordinance. If a municipality wishes to
investors. require a special use permit for any classes of
wind facilities, it will need to amend its zoning
The Sample Permitted Use Table provides the ordinance to reflect this requirement. Some
Wind Working Group's suggestions on how to zoning ordinances provide a permitted use table
balance these competing desires to encourage that lists every permitted land use, the zones in
wind development while retaining control over which that land use is permitted, and whether a
proposed installations. The sample table allows land use requires a special use permit for any of
Class I Systems—which includes most small those zones.108 For municipalities with these
wind systems—as a permitted use (that is, type of ordinances, the primary modification
construction requires a building permit,but not a would be to add each class of Wind Energy
special use permit) in all zoning districts. Class I Facility to this table and to note the permitted
Systems are smaller, include only one turbine, zones and special use requirements for each
and will usually be used to power the property class. Other zoning ordinances specify which
on which they rest. These systems may fit well uses require special use permits within the
in any zoning district with sufficient setbacks. provision that defines a particular zoning district
Class II Systems, with their larger generators, (also usually with a permitted use table).1°9
are permitted uses in Agricultural zones but Municipalities with this ordinance structure
require a special use permit in all other zones. would need to add Wind Energy Facilities of
Class III and IV Systems, which can have each class to the permitted use section of each
multiple turbines, require special use permits zoning district in which they wished to allow
due to their added complexity and greater wind facilities, and further specify which classes
potential impact on surrounding land use. The will need a special use permit in each district.
sample table provides a useful starting point.
Localities with No Zoning. Some municipalities
To implement this two-tiered permit system, in Georgia have chosen not to implement
municipalities must review their existing traditional zoning of any sort. A municipality
building code and zoning ordinance and will without zoning can still use the permit
need to amend at least the zoning ordinance, if requirement of the Model Wind Ordinance. If
not both. The next subsections discuss what such a municipality will allow any class of wind
changes might be necessary in these existing facility with only a building permit, it can
ordinances to implement an effective permit
system.
107 See,e.g.,Athens-Clarke County,Ga.,Code of Ordinances,tit.
7,§7-1-6(2010)("[N]o building,structure,or building service
Building Code. To use building permits as one equipment regulated by this code...shall be...constructed...
of the regulatory mechanisms for wind energy, unless a separate,appropriate building permit...has first been
as the Model Wind Ordinance does, localities obtained from the building official.")
See,e.g.,Murray County,Ga.,Code of Ordinances,appx.B,ch.
should confirm that their building or 2,§6.3(2010);Whitfield County,Ga.,Code of Ordinances,appx.
construction codes contemplate wind energy A,art.XIA(2010).
facilities and require building permits for such 09 See,e.g.,Athens-Clarke County,Ga.,Code of Ordinances,tit.
9,art.I,§9-10-2(permitted use table for commercial districts).
15
remove the permitted use table altogether and introduce these regulations and their potential
just note that the permit application is for a effect on wind turbine siting.
building permit. If a municipality without zoning
wants the additional oversight of a special use The Endangered Species Act protects species of
permit requirement (particularly for Class III fish or wildlife listed in accordance with the Act
and IV given their larger scale), it will need to by placing significant restrictions on actions that
draft additional provisions for its wind ordinance affect those species and their habitats.112 With
that outline the process required for approval of respect to wind facilities, the primary
a special use permit application. This process consideration will be whether constructing the
would likely need to include notice, a hearing, wind facility constitutes a "take" of an
and a vote by the municipality's general endangered species.113 Courts construe "take" as
legislative body (if the local government wants broadly as possible,114 and eliminating or
to mirror the oversight provided by a zoning modifying an endangered species' habitat can be
special use permit).11o a "taking" under the ESA.115 The ESA does
provide for incidental take permits that allow
Permit Requirement—Application what would otherwise be a taking to proceed if
certain conditions are met.116 Thus, to meet the
The Model Wind Ordinance requires Facility requirements of Section 7D of the wind
Owners or Operators to submit a specific permit ordinance, a permit application will need to
application to receive the necessary permit or disclose the existence of endangered species, if
permits to install a wind facility. Section 7D lists any, in the proposed project area and provide
the permit application requirements. These evidence of compliance with the ESA with
requirements provide the local government with respect to that endangered species, including the
upfront assurance that the Facility Owner and procurement of an incidental take permit if
Operator will abide by the wind ordinance in the required.
installation and operation of the Wind Energy
Facility. For the most part, the required The United States Corps of Engineers, among
disclosures describe the proposed project to aid other things, regulates navigable waters of the
in classification and to demonstrate how the United States. Section 10 of the Rivers and
wind turbine and/or facility will comply with the Harbors Act of 1899 requires a USCOE permit
standards set by the wind ordinance for for construction of any structure in or affecting
aesthetics, setbacks, noise, shadow flicker, navigable waters of the United States.117
maintenance, and decommissioning. The Navigable waters include "those waters that are
required narratives and descriptions will also subject to the ebb and flow of the tide" as well
help determine whether the facility will comply as those used in interstate or foreign commerce,
with local building codes. including oceanic waters.118 Note that the model
wind ordinance does not apply to wind
Certification of Compliance with Regulations. structures placed in navigable waters. However,
Facility Owners may be required to include in
their permit application certification of
12 See 16 U.S.C.§ 1538(2006)(listing acts prohibited with
"compliance with applicable local, state and respect to endangered species).
federal regulations," such as Endangered 113 16 U.S.C.§ 1532(19)(2006)("The term'take'means to harass,
Species Act (ESA), United States Corps of harm,pursue,hunt,shoot,wound,kill,trap,capture,or collect,or
to attempt to engage in any such conduct.")
Engineers (USCOE), Federal Aviation 14 See U.S.v.Town of Plymouth,6 F.Supp.2d 81(D.Mass.
Administration (FAA) and Federal 1998)("A`take'is construed in the broadest possible manner to
include every conceivable way in which a person can`take'or
Communications Commission (FCC) attempt to`take'any fish or wildlife."(internal quotation marks
regulations."111 The following paragraphs briefly omitted)).
15 Envtl.Protection Info.Center v.Simpson Timber Co.,255 F.3d
1073(9th Cir.2001)(citing Babbitt v.Sweet Home Chapter of
14 See supra notes 35-37 and accompanying text(discussing Communities for a Great Oregon,515 U.S.687,703-04(1995)).
Georgia's Zoning Procedure Law,including requirement for notice 16 16 U.S.C.§ 1539(a)(2006).
and hearing before issuing special use permits). 117 33 U.S.C.403(2006).
"'Model Wind Ordinance,supra note 3,at§7Dvii. 118 33 C.F.R.§329(2010).
16
if a proposed on-shore wind project is to be sited constructed in Georgia will be under 200 feet124
where it affects these navigable waters, a permit and building near airports will probably be
application will need to include evidence of a uncommon, these requirements should be noted
USCOE permit to build a structure in those and kept in mind. If a proposed project did
areas. include a 200+ foot turbine or construction near
an airport, the permit application would need to
As mentioned, the USCOE requires Nationwide include evidence of FAA approval of the wind
Permits (NWPs) for a variety of activities turbine's construction.
affecting wetlands, including a few that may
come into play during the installation of wind The Federal Communications Commission
facilities. NWPs may be required if the primarily regulates interstate and international
construction of the wind facility requires communications "by radio, television, wire,
activities like disturbing wetlands in coastal satellite, and cable."125 While wind turbines do
areas, building access roads to the wind facility not currently fall under the FCC's regulations,
site that disturb wetlands, or even building the FCC has proposed rules that may limit
access roads to the site that require multiple construction of towers near AM radio
stream crossings.119 Given the complexity of the antennae.126 Thus, applications for proposed
USCOE requirements for NWPs, including wind projects to be sited near radio towers may
whether a NWP is required for a particular require additional review,particularly if the FCC
project, applicants interested in constructing does begin regulation of non-radio towers
wind energy facilities would be well advised to including wind turbines.
hire an environmental consultant to help with the
NWP application process.120 Construction of wind energy facilities,
particularly small wind facilities,may not trigger
The Federal Aviation Administration oversees any of these federal regulations. Still, it will be
anything that could impact navigable airspace, important for the staff reviewing the permit
communications and navigation technology of applications to be familiar with these regulations
aviation, or Department of Defense to know when they may come into play.
operations.121 In particular, the FAA requires
filing of a Notice of Proposed Construction for Mountain Protection Ordinance and Coastal
objects that would extend more than 200 feet Ordinance Narrative. As part of the permit
above ground level and objects close to certain application, Facility Owners or Operators must
airports.122 This filing is required so that the submit a "narrative describing how the proposed
FAA can undertake an aeronautical study to project will address compliance with any
determine any potential impacts on air Mountain Protection Ordinance or any
operations.123 While most wind turbines to be equivalent coastal ordinance that has been
adopted.i127 Georgia law requires local
governments in mountainous areas to
19 E-mail from Teresa Eldredge,Registered Landscape Architect, promulgate mountain protection ordinances.128
President,TJ Schell,to Andrew Pinson,student,Land Use Clinic These ordinances may include provisions that
(May 4,2010,09:18 AM EDT);see 72 Fed.Reg.11092,11180-98
(Mar. 12,2007),available at limit the height of structures, require
http://www.usace.army.mil/CECWIDocuments/cecwo/reg/nwp/nw landscaping plans, and limit land disturbances in
p_2007_final.pdf(listing and describing each NWP).
20 E-mail from Mary Can Bendeck,Renewable Energy
Coordinator,Southern Alliance for Clean Energy,to Andrew
Pinson,student,Land Use Clinic,University of Georgia School of
Law(May 5,2010,10:31 AM EDT). 124 See supra note 81 and accompanying text.
121 Ma.Tech.Collaborative,Airspace Issues in Wind Turbine 125 FCC,About the Federal Communications Commission,
Siting,available at http://www.fcc.gov/aboutus.html(last visited May 3,2010).
http://www.masstech.org/renewableenergy/MTC_FAA.pdf(last 126 Federal Communications Commission,An Inquiry Into the
visited May 3,2010).This document provides an abundance of Commission's Policies and Rules Regarding AM Radio Service
useful information about the FAA's guidelines and how they may Directional Antenna Performance Verification,MM Docket No.
affect wind turbine siting. 93-177,at appx.E(2008).
122 Id. 127Id.at§7Dvi.
123 Id. 128 O.C.G.A.§12-2-8(a),(h)(2010).
17
protected areas.129 The required narrative well as associated buildings and mechanical
ensures that Facility Owners will abide by any components.
applicable Mountain Protection Ordinances
when installing a wind facility. Sanctions
Georgia law also protects coastal waters, Section 9 provides for criminal sanctions in the
beaches and sand dunes. Separate permits are form of fines and imprisonment for violation of
required to construct any structure on Georgia's the provisions of the wind ordinance. Sanctions
shoreline, which includes the submerged provide the regulatory "teeth" to ensure that
shoreline out to the edge of Georgia's owners and operators comply with the wind
jurisdiction.130 Moreover, coastal municipalities ordinance. Without explicit sanctions, owners
may have their own shoreline protection and operators are far more likely to attempt to
programs.131 The wind ordinance permit cut corners or entirely disregard parts of the
application requires Facility Owners or wind ordinance that may entail additional costs
Operators to include a narrative describing how or complications. Section 9A makes violation of
the proposed project will comply with any such any provision of the ordinance a misdemeanor
shoreline protection ordinances. It will be punishable by a fine of up to $1000 or
important to ensure compliance with such imprisonment of up to a year in jail. It also
ordinances if a potential wind investor wants to requires enjoinment of the activity that violates
take advantage of the good, consistent wind on the ordinance. Also, each day that the violation
the lands adjacent to Georgia's coast..132 occurs is a separate offense, which makes
violation of the ordinance over time more costly
Decommissioning than compliance.
Section 8 of the Model Wind Ordinance requires Severability
wind facilities to be decommissioned if not used
for electricity generation for a continuous period Finally, section 10 of the Model Wind
of twelve months. Decommissioning is required Ordinance declares that each section, paragraph,
both for aesthetic and safety purposes.133 A sentence, clause, and phrase of the ordinance is
nonfunctioning wind turbine could eventually "severable." This essentially tells a court that
rust or fall apart and become an eyesore.134 More decides it needs to strike down any part of the
important, it may become a safety hazard if left ordinance that the local government intended the
in disrepair.135 Section 8A gives those associated rest of the ordinance to remain intact. While
with the wind facility three months from the end courts are not required to uphold severability
of the 12-month period of inactivity to complete provisions, they may take them into account to
decommissioning. Three months should be prevent a municipality from being left without a
sufficient to allow for removal of the turbine as wind ordinance. It is unlikely that a court will
strike down a wind ordinance modeled closely
after the Model Wind Ordinance, but the
129 See,e.g.,Fannin County,Ga.,Code of Ordinances,§42-412 severability provision at least provides an added
(2010).
130 O.C.G.A.§12-5-320(2010). precaution in such a case.
131 See O.C.G.A.§ 12-5-241(a),-243(2010)(allowing local
governments to adopt shore protection programs and ordinances)
32 See,e.g.,AWS TrueWind,Georgia Wind Resource Map,
http://gawwg.org/resources/georgiawindresourcemap.html;Nat'l IV. Conclusion
Renewable Energy Lab.,Georgia Wind Map and Resource
Potential,
http://www.windpoweringamerica.gov/wind_resource_maps.asp?st Wind energy is a rapidly growing industry that
ateab=ga. can provide significant economic and
133 Discussion with Mary H.Hunt,Director,Special Projects, environmental benefits to communities in
Strategic Energy Institute,Georgia Institute of Technology, Mary
Carr,SACE, and Teresa Eldredge,Registered Landscape Georgia. Providing an effective wind ordinance
Architect,President,TJ Schell,February 10,2010. is one of the best ways to encourage responsible
34 rd. development of wind energy facilities in a
135 Id.
development energy
1.8
community. While drafting a new ordinance can
be complicated, this guide should be invaluable
for helping local governments become aware of
the many considerations that go into drafting
wind ordinances and how to best tailor the
Model Wind Ordinance to a specific
municipality. For further guidance and
information to aid in adopting a wind ordinance,
please contact the Georgia Wind Working
Group at www.gawwg.org or email
wind @gawwg.org.
19