ZBA Meeting, Tuesday, January 22, 2013, 7:00PM—Note change

ATTENTION:   IT APPEARS THAT TESTIMONIES ON THE WIND SETBACKS WILL BE POSTPONED.  PLEASE READ THE EMAILS WHICH FOLLOW

Bev KoppenActions
To:MCounty Board
Tuesday, January 22, 2013 10:22 AM
County Board members:
FYI from Kathy Miller about the ZBA meeting tonight, January22, 7:00 p.m.

Bev Koppen (for Ken Terrinoni)
From: Ken Terrinoni
Sent: Tuesday, January 22, 2013 10:16 AM
To: Bev Koppen
Subject: FW: ZBA meeting

From: Kathy Miller
Sent: Monday, January 21, 2013 1:44 PM
To: Ken Terrinoni; Bob Walberg
Subject: ZBA meeting
Ken and Bob,
FYI
Both sides of the WECS discussion tried to have individuals for direct
testimony at the January 22 meeting.
Both sides will not be able to present on the 22nd, so at the meeting
the ZBA chair will suggest postponing the WECS hearing to the ZBA
February meeting on February 26,2013 at 7:00pm.
Kathy

 

What will be happening at the ZBA Meeting.Note the probable change in wind turbine setback testimony.

First, the agenda is shown below.

The above is taken from:  http://www.boonecountyil.org/sites/default/files/ZBA%201-22-2013%20Agenda.pdf

Second, the proposed rules for testimony.

Dear Board Members:

Attached is an email from Kathy Miller about the ZBA hearing Tuesday January 22^nd.

Have a good weekend all.

Ken Terrinoni

_____________________________________________
From: Kathy Miller
Sent: Thursday, January 17, 2013 3:44 PM
To: Ken Terrinoni; Bob Walberg
Subject: ZBA meeting January 22

Ken and Bob,

FYI

The ZBA Chair requested that time be allotted for “expert” or “first hand” testimony for both sides at the next ZBA meeting.

Both sides will be allowed 20-30 minutes for presentation and questions pertaining to setbacks. If there are others to present information that has not

been presented, they will be allowed five minutes each. I contacted Vince Green at Main Stream and Karen Kinney with the concerned citizen group to let them know of the chair’s request. Both groups were amicable to the idea. Realizing that it is short notice, if either group cannot get a presenter or

presentation together by January 22, the ZBA Chair is open to postponing the hearing to January 29 or February 26.

I just wanted to let you know where we were. The agenda was mailed out and posted on our website today. The staff report and clean ordinance elements are attached for your information.

Please let me know if you have questions.

Thanks.

Kathy

Thirdly,  the advisory report from the Planning Department.

BELVIDERE - BOONE COUNTY

PLANNING DEPARTMENT

401 Whitney Boulevard, Suite 400 - Belvidere, Illinois 61008 PH 815 544-5271 FAX 815 547-9214

January 7, 2013

ADVISORY REPORT

CASE NO: 10-2012 APPLICANT: Boone County Board Revisions for WECS

REQUEST:

On December 19, 2012, the Boone County Board approved a portion of the original text amendment, mainly focusing on the decommissioning plan; the entire setback section (4.8.7.H) was sent back to the Zoning Board of Appeals for further review. This was done based on the advice of the State’s Attorney due to the significant changes made to the language (setbacks measured from primary structure to property lines). The proposed text amendment reads as follows:

4.8.7.H. Setbacks. All WECS towers shall provide the following minimum setbacks:

1. WECS towers shall be setback a distance of one and one-half miles from a municipal zoning jurisdiction unless the Applicant has submitted a setback waiver from all municipalities within one and one-half mile of the WECS (65 ILCS 5/11-13-26.)

2. From non-participating property lines Primary Structure(s): Three times the WECS tower’s height One thousand (1,000) feet from non-participating property line. Primary Structure. The distance shall be measured from the point of the property line closest to the WECS tower foundation Primary Structure. The owner of the property Primary Structure may waive this setback requirement but in no case shall a WECS tower be located closer to a property line Primary Structure than 1,200 feet 1.10 times the WECS tower’s height. The applicant does not need to obtain a variance from the county upon waiver by the property owner of this setback requirement. Any waiver of this setback shall run with the land and be recorded as part of the chain of title in the deed on the subject property.

3. From Platted Subdivision: 1,500 feet or 3.5 times the WECS tower height, whichever is greater from the platted lot line. The distance shall be measured from the point of the platted lots nearest property line to the center of the WECS tower foundation.

4. From public roads, all utility easements, access easements, recorded easements, third party transmission lines, and communication towers: 1.10 times the WECS tower’s height.

5. From water wellheads: Three times the WECS tower’s height. This separation may be reduced to a minimum of 1.1 times the WECS tower’s height upon submission of a private waiver signed by the owners of the wellhead. The private waiver must specify the agreed minimum separation.

6. From liquefied natural gas storage or liquefied petroleum gas storage or gasoline and volatile oils storage exceeding a 10,000-gallon capacity in the aggregate: Three times the WECS tower’s height.

7. From an easement for a gas pipeline, a hazardous liquid pipeline and/or an underground water main: Three times the WECS tower’s height.

8. There shall be a one-mile buffer around all restricted landing areas, regional airstrips and airports.

xxxxxxxxxxx = (Standard text) existing text within the zoning code; no changes proposed.

xxxxxxxxxxx = (Strike through text) text that is proposed to be deleted from the zoning code.

xxxxxxxxxxx = (Underlined and highlighted text) new text that is proposed to be inserted into the zoning code

BACKGROUND AND SUMMARY OF FINDINGS:

The public hearing for the originally proposed text amendment had three days of public testimony with additional public comment at the Planning, Zoning and Building Committee and County Board meetings. The majority of the information presented was not based on first-hand testimony; individuals with the first-hand knowledge were not present for cross examination or to answer public hearing questions leaving many unanswered questions and conflicting testimony.

The planning staff has the following comments regarding the eight proposed setbacks:

1. The one and one-half mile setback from municipalities is reiterating state law. The proposal for the Zoning Ordinance does not specifically call out Illinois municipalities; therefore, the staff believes that municipalities in Wisconsin are included in this requirement.

1. Language for the non-participating property owner setback was amended multiple times with some suggestions that were not decided. Two major changes from the originally proposed text are being proposed; one is changing the setback from a primary structure to a non-participating property line; the other is changing the distance from 1,000 feet (current ordinance) to three times the tower height.

During the public hearing process, there was testimony regarding residents not able to build houses because of the required setback. The setback within the Zoning Ordinance is not a reverse setback. The current Zoning Ordinance states that the WECS is to be 1,000 feet (or greater depending on the discussion) from a primary structure. The setback is for WECS tower and not for residences. The ordinance allows a residence to be constructed less than 1000 feet to a constructed WECS as long as it met all regulations of the zoning district (setbacks range from 15 to 75 feet from property lines), if they chose to do so.

The planning staff is supportive of the set-back distance based on a multiplier. This allows for setbacks to change with technology; however, the multiplier of three times or three and one-half times the tower height is excessive. During the public hearing process, data was not submitted that stated that three times the tower height was the definite distance needed for public safety; however, most of the suggested setbacks seemed to be based on personal preference and not verifiable data. A review of twelve Illinois counties (Bureau, DeKalb, Iroquois, LaSalle, Lee, Livingston, Logan, Marshall, McLean, Stephenson, Tazewell and Woodford) with existing WECS projects shows only one county (Livingston) with a setback as great as three times the tower height (the waiver allows for a setback reduction to 1.1 times the tower height). All of the other eleven county’s setbacks range from 500 feet to 1,400 feet from a primary structure or 429 feet to 1.1 times the tower height from a property line. The majority of counties measure WECS setbacks from the primary structures and not the property lines.

These distances concur with the information provided to the planning staff from counties with WECS application and construction process experience; these counties leave the zoning ordinance setback minimal and regulate the setbacks individually during the special use process. By reviewing the specific facts during the special use process, setbacks can be determined with the actual studies rather than on hypothetical situations. If this setback scenario was not adequate, the planning staff believes that the contacted counties would not provide such advice and would not continue the practice themselves if it was found to be detrimental.

If the setback is amended to a multiplier, the accompanying waiver should be a multiplier as well. Having a waiver of 1,200 feet is only beneficial if the WECS are significantly taller than 400 feet. Since the text amendment impacts all potential projects, the 1,200-foot waiver could be meaningless. If the waiver was a multiplier less than the required multiplier, then any proposed project would be able to utilize the waiver--the purpose of placing a waiver in the zoning ordinance.

It appears that a setback of three times the tower height or 1,500 feet (as commonly discussed) from the property line would make it impossible to site a single WECS regulated by the Zoning Ordinance within Boone County.

3. The planning staff does not see the purpose of the 1,500-foot or 3.5 times the WECS tower height from the lot line of platted subdivision setback if the WECS setback is being changed from a primary structure to a property line. Previously it was discussed that the platted subdivisions should be given extra consideration because not all the lots have structures and the setback was from existing primary structures. Now that the proposed setback is from a property line, there is no need to consider un-built primary structures.

4. The intent of the 1.1 times the WECS tower height setback from public roads and utility easements is not greatly different than the current text.

5. The three-times-the-tower-height setback (1.1 times the tower height with waivers) was amended to regulate only water wellheads. Although the waiver and setback are both multipliers, the required minimum of three times the WECS tower height is still excessive and was not based on any specific data but personal preference. Is this setback meant to regulate well heads for the participating property owner or is this meant to regulate well heads for non-participating property owners that already have a three-times-the-height-of-the-tower setback from the property line? The planning staff believes that section #5, #6 and #7 are unnecessary as utility easements are addressed in section #4.

6. The planning staff does not understand why setbacks for gas storage and gas pipelines (#6 and #7) are called out differently and why neither one allows a waiver. If the company controlling the pipelines and easements are acceptable to a waiver, why prohibit them from providing one. The three-times-the-tower-height setback was not based on any data, rather personal preference. In ordinance interpretation, #4 and #7 are presenting conflicting information as one section requires a setback of 1.1 times the height of the tower for utility easements and the other section of the ordinance requires a setback of three times the height of the tower for gas-line utility easements.

7. There was conflicting testimony presented regarding setbacks from gas pipelines such as the Enbridge line. Public hearing testimony indicated the industry standard for WECS setback was 1,600 feet. The planning staff has not been able to find any factual evidence to support an industry standard. The planning staff contacted Lorraine Little with Enbridge Inc. (phone 715-398-4677) and she stated that Enbridge did not say that a WECS needs to be 1,600 feet from their pipelines or that they prefer the setback to be that great. When the staff requested the information in writing, Joel Kanvic, Enbridge’s in-house counsel responded by phone. He reiterated what Lorraine Little stated and said that as legal counsel, he does not advise putting things in writing. Mr. Kanvic indicated he would be glad to speak with anyone that wished to contact him. The planning staff also contacted Phil Dick, McLean County Building and Zoning Department Director and Chris Henkel, Lee County Zoning and Plat Officer with questions regarding utilities and pipelines. Mr. Dick and Mr. Henkel have both stated that their Zoning Ordinance does not specifically call out setbacks for such improvements and that none of the county’s special uses for wind projects addressed them any differently than a setback from a right-of-way. If there was a true industry standard for such setbacks, then the planning staff believes that Enbridge Inc. would have stated so and that the other counties in Illinois that have projects would have to comply with the 1600-foot setback. This does not appear to be the case. The three-times-the-tower-height setback seems excess and is not based on verifiable data.

8. There is no argument that restricted landing areas, air strips or airports should be considered when siting WECS; however, there was no verifiable evidence stating the required distance for safety. The planning staff believes that such setbacks should be handled through the special use process. A reference was made regarding ultra light landing areas and setbacks. This would be a difficult setback to enforce since ultra-lights do not need landing areas; they can take off and land anywhere.

Based upon the above information, the planning staff recommends denial of the setbacks amendments for case 10-2012.

Submitted by: Reviewed by:

___________________________ _______________________________

Gina DelRose, Associate Planner Kathy Miller, Interim Planning Director

Fourthly, The proposed ordinance change

. Setbacks. All WECS towers shall provide the following minimum setbacks:

1. WECS towers shall be setback a distance of one and one-half miles from a municipal zoning jurisdiction unless the Applicant has submitted a setback waiver from all municipalities within one and one-half mile of the WECS (65 ILCS 5/11-13-26.)

2. From non-participating property lines: Three times the WECS tower height from any non-participating property line. The distance shall be measured from the point of the property line closest to the WECS tower to the center of the WECS tower foundation. The owner of the property may waive this setback requirement but in no case shall a WECS tower be located closer to a property line than 1,200 feet. The Applicant does not need to obtain a variance from the county upon waiver by either the county or property owner of this setback requirement. Any waiver of this setback shall run with the land and be recorded as part of the chain of title in the deed of the subject property.

3. From Platted Subdivision: 1,500 feet or 3.5 times the WECS tower height, whichever is greater from the platted lot line. The distance shall be measured from the point of the platted lots nearest property line to the center of the WECS tower foundation.

4. From public roads, all utility easements, access easements, recorded easements, third party transmission lines, and communication towers: 1.1 times the WECS tower’s height.

5. From water wellheads: Three times the WECS tower height. This separation may be reduced to a minimum of 1.1 times the WECS tower’s height upon submission of a private waiver signed by the owner of the wellhead. The private waiver must specify the agreed minimum separation.

6. From liquefied natural gas storage or liquefied petroleum gas storage or gasoline and volatile oils storage exceeding a 10,000-gallon capacity in the aggregate: Three times the WECS tower height.

7. From a gas pipeline or hazardous liquid pipeline, underground water main or easements for such utilities: Three times the WECS tower height.

8. There shall be a one-mile buffer around all restricted landing areas, regional airstrips and airports.