Cumberland Times-News

Local News

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.

1
Text Only
Local News
  • Easter experience Easter experience

    April 18, 2014 1 Photo

  • Game on: City interested in baseball study

    After it looked like the objection of a couple of constituents to a study on the feasibility of bringing a minor league baseball team to the area may have torpedoed the thought, county commissioners and some city officials sounded ready to sing a chorus of “Take Me Out to the Ballgame” on Thursday.

    April 18, 2014

  • DEREK SHEELY Charges against helmet maker stand in case of Frostburg player’s death

    A Montgomery County judge this week declined to dismiss charges against a helmet manufacturer in a case brought by the parents of a Frostburg State University football player who died of head injuries in August 2011 following four straight days of heavy contact drills in practice.

    April 18, 2014 1 Photo

  • GAYLE MANCHIN W.Va. BOE president speaks on issues at WVSDB

    West Virginia Board of Education President Gayle Manchin responded to issues at the West Virginia Schools for the Deaf and the Blind during an interview with the Times-News Wednesday morning.

    April 18, 2014 1 Photo

  • REGINALD REDMAN Moorefield man jailed on felony drug count

    A Moorefield man was arrested on various charges Thursday, including a felony drug offense for possession of amphetamines, according to the Keyser Police Department.

    April 18, 2014 1 Photo

  • Blossoming optimism Blossoming optimism

    April 18, 2014 1 Photo

  • Cemetery group’s efforts revive Oak Hill grounds Cemetery group’s efforts revive Oak Hill grounds

    After you drive Alexander and Furnace streets then navigate a couple of switchbacks on Cemetery Road, you’d figure there would be no more uphill.

    April 17, 2014 2 Photos

  • Proposed county budget holds most agencies flat

    After taking into account an income tax shortfall, Allegany County Finance Director Jason Bennett said he’ll propose a budget that holds most outside agencies to flat funding and funds the Board of Education at what county officials say are maintenence of effort levels for 2015.

    April 17, 2014

  • RYAN WOLF Wolf named 2014-15 Garrett Teacher of the Year

    Southern Garrett High School teacher Ryan Wolf has been named the 2014-15 Garrett County Teacher of the Year.

    April 17, 2014 1 Photo

  • Rep. Delaney discusses congressional gridlock Rep. Delaney discusses congressional gridlock

    While giving a civics lesson at Frostburg State University on Thursday, U.S. Rep. John Delaney, congressman from Maryland’s sixth district, told students that the polarization in Congress is due primarily to redistricting and a poorly designed Congressional schedule.

    April 17, 2014 1 Photo

Facebook
Must Read
News related video
Ceremony Marks 19th Anniversary of OKC Bombing Raw: Fire Destroys 3 N.J. Beachfront Homes Raw: Space X Launches to Space Station Man Charged in Kansas City Highway Shootings Obama Awards Navy Football Trophy Ceremony at MIT Remembers One of Boston's Finest Raw: Students Hurt in Colo. School Bus Crash Raw: Church Tries for Record With Chalk Jesus Police Arrest Suspect in Highway Shootings Drought Concerns May Hurt Lake Tourism Vermont Goat Meat Gives Refugees Taste of Home Calif. Investigators Re-construct Fatal Bus Cras Appellate Court Hears Okla. Gay Marriage Case Horseless Carriage Introduced at NY Auto Show Chelsea Clinton Is Pregnant Beau Biden Plans 2016 Run for Del. Governor Flamingo Frenzy Ahead of Zoo Construction Obama: 8 Million Healthcare Signups Obama Hopeful on Ukraine, Will Watch Russians U.S. Sending Nonlethal Aid to Ukraine Military