Cumberland Times-News

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September 3, 2013

Part of Garrett wind bill said to be invalid

OAKLAND — A portion of Senate Bill 370, which deals with setback requirements for wind turbines, was deemed unconstitutional by Maryland Attorney General Douglas Gansler because it would have given adjacent neighbors zoning authority.

Gansler sent a letter in May to Gov. Martin O’Malley saying that certain provisions of that bill are unconstitutional and can’t be enforced, said Monty Pagenhardt, county administrator, during the commission meeting on Tuesday.  

“The bill will proceed, as it was written into law during the last session, except those certain provisions of the bill that were declared unconstitutional,” said Pagenhardt.

“There is a bill right now that is ready to be drafted by the department of legislative services that will address the certain provisions that pertain to setbacks and variances. That will be amended during the 2014 General Assembly,” he said.

The provision of the bill that was deemed unconstitutional deals with an adjoining property owner’s consent to a variance for a wind turbine setback requirement, according to the letter.

“While it is our view that this consent provision is likely to be unconstitutional, we believe that it can be severed from the bill,” wrote Gansler. “There are also other legal problems relating to this variance provision that should be corrected in the next session of the General Assembly.”

By requiring the consent of all adjoining property owners prior to applying for the variance, the bill has given neighboring property owners the power to determine whether or not a variance from setback requirements for wind turbines would be detrimental to the public health and welfare, according to the letter.

“Thus, it is our view that such delegation of zoning authority to individual landowners is of doubtful constitutionality,” read the letter.

Gansler suggests that, should the county approve the bill in spite of the defect, that they should administer the law as if adjoining property owners’ consent is not required.  

State Sen. George Edwards is aware of the defect with the bill and indicated that the matter should be placed on the agenda for Tuesday’s meeting and open to public comment, according to Pagenhardt.

Commissioner Jim Raley stressed that all the setbacks in the bill are legal but the variances aren’t.

The bill provides for a minimum setback for a wind turbine of, “no less than two and half times the structure height,” in the county.

“I think  (Edwards) views that (the bill is) salvageable, there are certain sections that are already enforceable on new future projects,” said Raley.

The portions of the bill that are enforceable don’t apply to wind systems that have submitted a specified interconnection application to the PJM before March 1.   

Oakland area resident Eric Robison, who testified for the bill, suggested that additional language in the bill should be amended.

Robison suggested that a portion of the bill dealing with the definition of setback distance be amended to non leased property line.

The current definition of a setback distance is the distance measured from the base of the tower of a wind turbine in a wind system to any residential, commercial, public or agricultural building in all directions.

“This would allow those property owners that didn’t enter into a lease the full lease of their land,” said Robison. “I think that the county should open this back up to some type of transparent stakeholder participation in how that language would come forward.”

Robison suggested that the county utilize the same process that the Department of Planning and Land Development uses when when determining  wind turbine setback regulations.

Edwards negotiated the terms for setbacks in the bill with the Maryland Energy Administration and in doing so changed the initial setback, according to Robison.

The setback was changed from property line to occupied structures, buildings and out buildings.

The change in the initial setback allows for energy development to occur at a property line which in turn allows for wind turbines to go in adjacent property close enough to experience possible ice throw from the turbines, according to Robison.

Robison said that after looking at any documents in the county pertaining to setbacks that they were all done within the property line, with the bill being the exception.

Contact Elaine Blaisdell at eblaisdell@times-news.com.

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