Zoning, financial, legal details outlined at forum

SUPPORTERS Ed West, left, and Harold Gasaway, make their opinions known Thursday during Fulton County Commissioners’ wind power forum at the Fulton Community Center.

SPOKESMAN Aaron Ault speaks on behalf of the Fulton County Property Rights Group during Thursday’s wind power forum organized by Fulton County Commissioners.

OPPOSED A member of the audience at Fulton County Commissioners’ wind power forum holds a sign, but won’t show his face. The Sentinel photos/Shelby Lopez

(The following was originally published in The Rochester Sentinel of Rochester, IN on Monday, November 13, 2017.)

BY WESLEY DEHNE
Staff Writer, The Sentinel

Hundreds of people turned out for a public meeting Thursday in Fulton County to hear information regarding a renewable energy company’s plans to develop a wind farm in the county.

The meeting was organized by Fulton County Commissioners, who are considering a set of proposed amendments to the county’s commercial wind energy zoning ordinance. Despite an occasional mild outburst and unsolicited applause from both camps, the tenor of the public meeting was fairly cordial.

“I know this is an emotional issue,” Fulton County Commission President Bryan Lewis said, asking attendees to hold their applause and be respectful. “We’re just trying to get as much information as quick as we can and get everybody who would like to speak through this.”

Prior to the meeting, representatives of renewable energy developer RES and the Fulton County Property Rights group spoke to the public and distributed handouts.

RES, which is interested in bringing 133 wind turbines to Fulton County at an estimated investment of $591,055,643, spoke about the potential benefits of its project.

The property rights group, which is calling for stricter wind turbine setbacks that would halt the development of RES’ project, spoke on the purported detriments and adverse effects of having to live near wind turbines.

Regulations

Fulton County Area Plan Director Casi Cowles was first on the agenda. She explained the county’s planning and zoning standards that apply to wind farms.

“One of the biggest questions is whether or not we currently have wind ordinances. We do, and they do allow wind development, so this is not something new in the Fulton County Zoning Ordinance,” she said. The plan commission began writing regulations in 2005. They were made effective in 2008 and have been modified once prior to the amendments now pending.

She said the ordinance was the culmination of multiple public hearings, meetings and talks between county officials and residents over the years. Ordinances of at least 14 other counties were also reviewed, she noted. “We’ve had many wind developers come in and talk to us, but it’s never gotten to this point,” she said.

Among the proposed amendments, Cowles discussed wind turbine setbacks, height restrictions, waivers, shadow flicker and noise, as well as the enforcement process if any wind turbine is declared unsafe or a public nuisance.

A setback of 1.5 times the total height of a wind turbine from a property line and 2 times the height from a residential dwelling are among the amendments being considered by commissioners. That would require a wind turbine of 600 feet to be located 900 feet from a property line and 1,200 feet from a residence.

Waivers

“There are waivers that are allowed for some of the proposed setbacks,” Cowles said. “A couple of the setbacks cannot be waived. Road right-of-way setbacks cannot be waived by anyone. Public utility easements, railroad right-of- ways, any established right-of-way or easement cannot be waived, so whatever that setback is that’s the setback that the turbine has to be.”

A setback waiver is allowed if participating landowners share a common property line or a nonparticipating landowner signs a waiver, Cowles said. She also noted there is no restriction on the maximum height of a wind turbine, but added that any wind energy conversion system, or WECS, with a height of more than 200 feet requires a special exception.

There is also a reciprocal setback included in the amendments stating that no dwelling can be constructed within 1,000 feet of an existing wind turbine.

“My suggestion to the commissioners would be to take a hard look at this code,” Cowles said. “There’s a lot of concern about this, and their concern is very valid. If I own a 12-acre parcel and I happen to sit within this, what if I want to split off a part of it and give it to my son? This particular code wouldn’t allow me to do that.”

She suggested commissioners either include a waiver in the ordinance related to the reciprocal setback or strike it completely. She also spoke about how setbacks could overlap into a parcel and restrict new home construction, an instance referred to as “trespass zoning.”

Other setbacks Cowles touched on include those related to DNR-controlled lakes, platted subdivisions, residential districts and incorporated municipal limits. She noted a half a mile setback is required from the Tippecanoe River due to the shifting flood plain and discussed how the Caston School Board requested a 660-foot setback.

Neighbors

“Their feelings on this were our tax base lives around us, and we want to restrict them as little as possible,” she said. “Some of the comments were also that they felt it was a good learning tool for the children.”

Cowles noted shadow flicker cannot occur more than 30 hours per year or 30 minutes in a day on any nonparticipating house within a one-mile radius of a wind turbine. There is also a proposed amendment stating that the noise generated from a wind turbine cannot exceed 50 decibels, which is measured 50 feet from the foundation of the nearest nonparticipating dwelling.

“Another big question that we keep getting is about the enforcement,” Cowles said. “As far as interference, with pre-construction we require a communication study for the company to go out and to look for these interference points. Post-construction, if an owner or operator receives a written complaint of interference then they have the duty to remedy that situation. If they fail to remedy that complaint, the plan commission can take action.”

Cowles said a warning letter would be issued to any wind energy developer if they’re found to be in violation of codes related to noise or shadow flicker. A $50 fine would be required 15 days after the issuance of such letter. The fine would then double and accrue up to $2,000.

“Then we take the person that is in violation to court,” Cowles said. If the county wins, “They pay our attorney fees, they pay their fine and they have to apply with the code.”

She went on to say: “Any WECS declared unsafe by the plan commission and declared a public nuisance has to be abated, repaired or removed. Any WECS that’s considered discontinued after one year without energy production is subject to removal … ”

Agreements required

She noted that before a wind farm project can be considered by the plan commission under a development plan review process, the developer and commissioners have to sign off on an economic development agreement, decommissioning plan, drainage plan and road use and road improvement plan.

“We require all of those contracts to be signed, so if those contracts cannot be negotiated and signed, it never comes to the plan commission for development plan review and the project never goes through,” she said.

Once that development process is approved, the wind energy developer is required to apply for a special use permit. Future owners are contractually obligated to assume all responsibilities of the original applicant.

“That’s the code in a nutshell,” Cowles said. “There are other codes. I just hit the high points because of the short time tonight.”

Online

The ordinance, including its proposed amendments, is available on the county’s website at https://www.co.fulton.in.us.

In answering questions from the public, Cowles said she believes a setback of 2,640 feet from a property line would negate development. “If that’s the purpose of the commissioners, then they can choose to put that in there,” she said. “If they want to allow development and make sure there’s kind of a happy medium, then they can look at other setbacks.”

She also answered a question about the potential devaluation of property, saying “I can tell you that I’ve actually spoke to assessors in White, Benton and Tipton counties. I asked them if the land values change, they said no. I had many people tell me they spoke to appraisers and realtors in those areas, including auction houses, and they said that they did not see a detrimental impact.”

Tax impact

Jason Semler of financial consulting firm H.J. Umbaugh & Associates followed Cowles, speaking on the financial impact of RES’ proposed project.

Semler estimated that RES’ investment of nearly $600 million would increase the assessed valuation in the wind farm area by $177 million. The property tax impact, he said, would mostly come in a boost to cumulative capital development funds. Tax caps would prevent a big difference on any other fund, he added, although all property owners would see a slight benefit.

Wayne Township, with 70 proposed turbines, would see a $91.8 million assessed value hike. That would mean $18,545 more a year for its cumulative fire fund. Liberty Township, with 50 proposed turbines, would see a $70.5 million assessed value hike and have $9,881 more a year for its cumulative fire fund. Property taxes in both townships would drop $91.21 on a $95,400 home – the median in the county. Estimated taxpayer impacts were also figured for Union and Rochester townships, where 13 wind turbines have been proposed by RES.

“Everyone in the county would see a slight benefit,” Semler said. “These townships will see the largest reduction because that is where the turbines will be located.”

Semler noted a business in Liberty, Wayne or Union townships would receive a property tax reduction of nearly $400 for every $100,000 of assessed value. He estimated there would also be a $7.26 reduction per acre of farmland in those townships.

Legal matters

Rick Hall, an attorney with Barnes and Thornburg, spoke in more depth on the agreements county officials would need to reach with RES prior to development.

“These agreements have not been negotiated yet with the wind company,” he said. “I’m speaking from experience of what we’ve negotiated in other counties and what I would recommend be used in this county.”

He spoke first of the road use agreement, saying “If the project goes forward, the wind company will have to use the county roads. The trucks that they bring the turbines in on are massive, and your roads don’t have the capacity to accommodate those trucks.”

He said RES would have an obligation to “build up the roads to make sure they can use them safely.”

“At the completion of the project, they have to restore the roads to a certain condition and that condition is agreed upon upfront between the county and the wind company,” he added. “One of the benefits that we’ve seen in other counties is that, at the end of the day, you typically have roads that are better than what you had at the start.”

Hall went on to say that RES would be required to post third-party security under the road use agreement to ensure that any damage is fixed. Similar conditions would be required under a drainage agreement, he said.

A surety

Financial backing in the form of a letter of credit, surety bond or cash would also be required of RES under the decommissioning agreement. This agreement, Hall said, protects the county if a wind developer goes bankrupt or abandons its system. At one point he drew laughter from the audience when he referred to wind turbines as eyesores.

Of an economic development agreement, Hall said: “This would be some cash that would go to the county that could be used to do other economic development in the county. It could be shared with other taxing units in the county. It’s been handled a number of different ways in other areas of the state. … This provides some additional cash that can really be rolled into a significant project in the community.”

Tuesday: Comments from RES, the Fulton County Property Rights group and the audience – both for and against.

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