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Although wind turbines have been used for centuries, recent advancements in technology have made wind turbines a viable source of alternative renewable energy. The increase in demand for energy produced from wind has caused a proliferation of commercial-scale wind farms in Michigan. The location and siting of large wind turbines in a small area may cause local impacts. Townships have the authority to address these concerns through reasonable regulation, as explained in this month’s E-Letter.

Harvesting the Wind

To reduce reliance on fossil fuels (coal, gas and oil), Michigan commenced an initiative to supplement existing utility facilities with alternative renewable energy. Due to the number of hours providing useable sunlight, Michigan’s most viable alternative energy is produced by wind turbines at this time. As solar technology improves this may change, but the current preferred alternative energy is wind energy.

Wind turbines range in size and complexity. The size and complexity of the turbine is directly related to the use to which the turbine will be used. The potential uses can be divided into two categories: (1) commercial-scale wind energy production for wholesale and (2) on-site wind energy production for personal needs. The potential concerns differ depending on the scale of the wind turbines, the number of turbines in a proposed project, and the intended use. Commercial-scale operations for wholesale production are more intensive. A single commercial-scale wind turbine can generate up to 5 megawatts of power, providing enough electricity for more than 500 homes. On the other hand, private-scale wind turbines designed to generate power for on-site uses can be harmonious and have minimal impact on surrounding properties.

Does the Township Need to Regulate Wind Turbines?

The threshold question for any township is whether the township needs a wind ordinance. This depends on numerous factors that are specific to each township, including:

• The township’s perspective and position on wind turbines being sited and located in the township.
• The growing interest in wind turbines caused by the State of Michigan’s mandate for renewable energy production goals, and federal and state tax incentives. While many think of large developments, farmers are also expressing an interest in wind energy to curtail their significant energy consumption. Certain programs are available to also assist with financing these projects.
• Available land in the township for siting wind turbines and the local potential wind-energy capacity. Each area in the State has a different wind speed, which directly impacts the amount of energy that can be produced. Some areas, such as the Thumb, have had developments for 10 years or more due to the available wind speed. Other areas may not have sufficient wind to make a commercial-scale project viable.

Even if a township determines that it needs a wind ordinance, the amount of regulation and the concerns regulated can be specifically tailored to the township. For instance, more developed townships may be concerned with which areas turbines can be located to minimize disruption with neighboring residential areas. Others may be comfortable with siting turbines in the open agricultural areas and are only concerned with abandonment and decommissioning of the turbines 20 to 30 years later.

What Options Are Available to Regulate Wind Turbines?

The authority vested in a township under the Michigan Zoning Enabling Act, the Michigan Planning Act, and MCL 41.181 provide a township three viable options for regulating wind turbines. The options can be broken down as follows:

• Adopting a zoning ordinance or amending a current zoning ordinance;
• Adopting a non-zoning ordinance to protect the public health, safety, general welfare of township residents;
• Adopting both a zoning ordinance and non-zoning ordinance.

The Zoning Approach

The power to adopt and amend zoning ordinances is governed by the Zoning Act, which was comprehensively amended in 2006. The Zoning Act provides the township authority to regulate land uses and buildings by districts, locations and areas.  Townships that choose to regulate wind energy under the zoning approach must have a planning commission and a zoning ordinance (or otherwise create them). Wind turbine provisions in a zoning ordinance can address the peculiar impacts of a commercial-scale wind farm and an on-site wind turbine with the following methods:

• Identify and provide for the zoning districts where wind-energy use is permitted by right or by special use
• Creation of a new zoning district, identified as wind energy overlay, that can allow wind turbines to be sited in the locations of the township where wind turbines are most compatible with surrounding uses and the subject property is rezoned to such use

Depending on a township’s goal in regulating wind turbine projects, providing for wind-energy zoning districts by right and special use permits is significantly different than requiring the rezoning of a subject property to fall within a wind-energy district. The special use permit process will be carried out by the township planning commission and township board. The decision to approve the special use permit will rest with either the township planning commission or the township board, depending on the township’s zoning ordinance. But, a township that adopts a zoning ordinance requiring the subject property to be rezoned for wind-energy use ultimately subjects the decision of the township board to referendum. Since the rezoning is considered an amendment to the zoning map, residents of the township are provided the ability to circulate a petition and subject the decision to a vote at a general election. While this approach can slow the development process and also limit potential developers interested in creating projects in a township, it also provides a mechanism to ensure that the majority of voters in the township support the development.

In addition to how and where to site and locate wind turbine projects, the zoning approach allows the township’s zoning board of appeals to provide a mechanism to address and vary non-use conditions that don’t work for a specific project. For instance, a township may adopt a regulation limiting the height of turbines to 425 foot tall. A developer, however, could request a variance to construct a project with 450 foot tall turbines.

Non-zoning Approach

The power to adopt a non-zoning ordinance is provided under MCL 41.181, which provides for the adoption of ordinances “regulating the public health, safety, and general welfare of persons and property” of the township. The ordinance cannot regulate by districts.  Townships that do not currently have a planning commission or zoning ordinance may find that a non-zoning ordinance best suits its needs.  This type of ordinance is not subject to referendum and regulates current and future wind turbine projects. “Grandfathering” of nonconforming uses does not apply to a non-zoning ordinance.

Non-zoning regulations can be comprehensive ordinances addressing all concerns regarding wind turbines or be a general noise or nuisance ordinance. The difficulty with general noise and nuisance ordinances is that they often do not provide sufficient protection to address the specific concerns that are raised by wind turbine construction and operation. A non-zoning ordinance adopted to address these specific concerns may be a better approach.

Townships subject to county zoning ordinances, however, must be cautious when adopting a non-zoning ordinance. Any inconsistency between a township’s non-zoning ordinance and a county zoning ordinance could make the township’s ordinance unenforceable. See MCL 125.3209 and MCL 125.3210. In these instances, the township may find that it is best to adopt a zoning ordinance.          

Combined Approach

All townships are provided statutory authority to adopt non-zoning ordinances under MCL 41.181. Those townships that also have a zoning ordinance may find that a combined approach of adopting a non-zoning ordinance and wind energy provisions in a zoning ordinance provides a flexible and defensible approach. The combined approach provides a method for a township to address specific concerns that arise in each land use district, but also create general standards that regulate the operation of any wind turbine in the township.

What Issues Should be Addressed in an Ordinance?

Wind turbines, either as a commercial-scale operation or a wind turbine providing power for on-site operations only, cause impacts to the local community that are different than uses and activities currently regulated by a township. The following list provides issues that a township should consider when drafting and adopting a wind ordinance (either as a zoning or non-zoning ordinance):

• Setbacks
• Height
• Noise
• Shadow flicker
• Decommissioning/abandonment
• Environmental impact
• Compliance with building codes
• Compliance with federal, state and local agency statutes, codes and ordinances
• Permitting test facilities and meteorological towers
• Rotor clearance and length
• Tower access and safety
• Aesthetics, including neutral colors and lighting
• Signage on the turbine and related facilities
• Inspections and owner/operator maintenance
• Permit terms and fees
• Liability to property owners
• Security and escrow accounts to handle damage during construction, post-construction damages and liability and the costs for application review of a permit requests and site plans
• Safety (ice-throw, blade-failure, tower-failure)
• Turbine technologies capable of mitigating or resolving concerns

Although all of the issues listed above should be considered, setbacks, turbine heights, noise, and shadow flicker are “hot button” issues for residences.

Townships that regulate wind-energy turbines currently set the height of turbines from 350 to 600 foot tall. The height of the turbine affects setback considerations, which provide aesthetic and safety concerns (i.e., fall zone), and noise reduction. The taller the turbine permitted, generally there is a greater need for larger setbacks. Some regulations include 1600 feet or 4 times the height of the turbine (tower and blades) from residential structures and parcel lines.  Participating property owners and non-participating property owners (neighbors to a project) could be permitted to waive setback distances to a certain extent from impacted buildings or property lines.

The height of the turbines and the setback from structures or parcel lines also impacts noise issues. The larger the setback, less noise will be audible on adjacent properties or near structures. Generally, noise limits are set in a township so that an operating turbine produces noise similar to the ambient environment. Many in the industry suggest that a turbine should operate in a range of 35 dB to 55 dB. Some townships even adjust the noise level depending on the time of day (i.e., daytime or nighttime).

A concern similar to noise is shadow flicker. Shadow flicker is created by the shadow cast from the turbines as they rotate. Technology on new turbines can minimize or eliminate this issue. Setbacks from residential structures can also mitigate the impact on residents. Many townships set a maximum number of hours that a turbine can operate while causing shadow flicker. Guidelines are currently recommending approximately 30 to 40 hours a calendar year.

–Christopher Patterson  cpatterson@fsbrlaw.com

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Fahey Schultz Burzych Rhodes PLC, Your Township Attorneys, is a Michigan law firm specializing in the representation of Michigan townships. Our lawyers have more than 150 years of experience in township law, and have represented more than 150 townships across the state of Michigan. This publication is intended for our clients and friends. This communication highlights specific areas of law, and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.