New wind energy resource for planning commissions

While wind energy systems continue to be a hot topic in Michigan, the updated sample zoning and planning discussion is for local governments.

An updated sample zoning for wind energy systems is now available for local governments to use with its zoning and planning programs. This document has undergone major revisions and updates since March 2017. Versions of the document dated prior to August 2017 should not be used or referenced.

It’s the first time the sample zoning has been updated since 2008 when the Michigan Energy Office prepared the first sample zoning on this subject. Since then, there has been more research, and compilation of research on various aspects of utility wind energy farms as well as experience by a larger number of local governments on the subject. So, a number of changes were introduced into the sample zoning prepared by Michigan State University Extension.  

In brief the changes from the 2008 version to this version include:

  • A starting point (for discussion) of 45dB(A) noise threshold at the residence property line, edge of the curtilage, or other point.
  • 60 versus 90 days for sound testing.
  • Road modification plan as a required part of a zoning permit application.
  • Greater distances for which flicker mitigation may be required or modeled to determine mitigation practices if needed.
  • Introducing the possibility of a lease unit boundary and distances the tower needs to be from that boundary.

As wind farms have developed in different parts of Michigan, some have been very controversial, and others have not. The Land Use Series “Sample Zoning for Wind Energy Systems” devotes a section reviewing research done and compiled by Peggy Kirk Hall, J.D., of The Ohio State University as to why some are controversial and others are not. 

The findings of that research focus on these elements:

  • Anticipated effects
  • Fairness of the development
  • Values and beliefs in the community

Finally, the new publication shares some zoning administration lessons learned from community experiences in Michigan with wind energy systems. The purpose is to stress that basic rules and limitations of zoning authority do not go away or become diminished just because a project has a great deal of vocal opposition or support. The same basic legal principles apply to wind energy projects as they do to other development projects. Legal requirements to follow procedural due process practices, such as public notices, hearings, unbiased decision makers and making decisions based on ordinance standards (and nothing else) have to still be done.

Substantive due process also still applies. The regulation must be a subject that is appropriate and legal for a local government to have regulations about, must be related to a public purpose and must be the least amount of regulation necessary to achieve the public purpose.

The Michigan Zoning Enabling Act requires that a zoning ordinance, or decision, does not have the effect of totally prohibiting a land use in a local government when there is a demonstrated need for that land use in the surrounding area of the state – unless there is not an appropriate place for the land use or the land use is not legal (MCL 125.3207).

The list of special uses for a zoning district in a zoning ordinance must be “specific,” not general or broad categories of land uses.

Standards in a zoning ordinance cannot be written such as to depend on approval of a neighbor, or agreement of a neighbor. Requirements of “good neighbor payments” cannot be done. If standards in the zoning ordinance are found to have all been met, then the zoning permit must be issued. If one or more standard is not met, then conditional approval or denial of a zoning permit can be considered. Only the standards in the zoning ordinance should be cited or used – not some standard(s) from other documents, or requirements people feel should or ought to be in place.

Community dispute resolution processes are not appropriate for the zoning amendment process.

Rules concerning conflict of interest also still apply. A conflict of interest occurs when a member of the planning commission, or zoning board of appeals has a relationship (e.g. is a relative) with the applicant, owns property in proximity to the proposed project, or may have financial gain resulting from the proposed project. In those situations the member should declare a conflict exists and not vote, debate, deliberate or otherwise participate in the meetings on the subject.

As with any issue, a member of a planning commission should never publicly (or privately) announce support or opposition to a wind energy project before the case has been heard and the hearing is over.

Nonconforming land uses still must be allowed to continue, and regulations must not result in a taking of private property. Equal protection of all persons is still a standard to be followed. The hierarchy for different types of municipal and county ordinances also stays the same.

Those in Michigan State University Extension that focus on land use provide various training programs on planning and zoning, which are available to be presented in your county. Contact your local land use educator for more information.

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