County blocks wind turbines on less than 5 acres

When Greg Menoche of Dagsboro installed his own wind turbine a few years back, it was fairly simple. With plenty of acreage at his home, he fit under Sussex County’s 5-acre minimum for windmills nicely, and after getting the various permits and approvals, he was in business.

Drivers riding by on Nine Foot Road would stop and ask about the wind turbine, and Menoche eventually put a sign up and started advertising. He was on his way to becoming a dealer.

Over the past few years, as a dealer, Menoche has gotten familiar with the Sussex County Board of Adjustments process, because there are many homeowners who are interested in renewable energy who live on less than 5 acres, and they have required variances in order to be able to install turbines.

To make installation easier for his clients, and to keep it as affordable as possible, Menoche suggested to the county more than a year ago that the $400 non-refundable fee for a BoA application was too high for residents who were applying for variances for residential wind turbines, and he asked about the lowering the acreage minimum, all to no avail.

Menoche recently appealed county again, pleading for them to once again look at the situation because, under county code, he cannot sell turbines to anyone not having at least 5 acres. And, now, because of verbiage in a new state law, Menoche has been told there is no way for those owning less than 5 acres to even apply for a variance.

“Here’s the problem,” explained Rick Berl, attorney for Sussex County Board of Adjustments, which until recently had heard applications for exemptions for wind turbine placement quite frequently, “the state law doesn’t address acreage or height.”

“The problem with the way that statute [HB 70] was written was that it did not address ordinances which existed at the time of its enactment, such as those on the books in the county. Instead, it prohibited future restrictions,” Berl noted. “As a result, the County continued to enforce its existing code, since the state law did not address existing ordinances.”

“After that, there were several instances in which the Board of Adjustment denied applications to reduce the 5 acre rule, by and large because of significant opposition within neighborhoods,” Berl added.

“Because the State was interested in pushing a ‘green energy’ policy, even over the objection of neighboring homeowners, it appears that an effort was made to try to address the problems inherent in the 2009 legislation, and essentially circumvent the county code.”

According to Berl and County Attorney Everett Moore, in the related bond bill language, the state has now eliminated even the possibility of getting a variance.

HB 500, in Section 88, states, “Notwithstanding the provisions of any existing county or municipal zoning ordinance or regulation, no prohibition against or restriction on wind energy systems for residential single-family homes that is inconsistent with 29 Del. C. §8060 and adopted prior to August 8, 2009, shall be effective and no conditional use or other zoning review process shall be required.”

Since county officials maintain that the law on their books is not “inconsistent” with 29 Del. C. 8060 – because acreage is not mentioned – Moore said, they are faced with an “unintended consequence” of HB 500: the county has not been able to hold public hearings on BoA applications for wind turbines on less than 5 acres.

Menoche said his hands are now tied. Even though people are calling him about installing wind turbines, he can’t do much more than educate potential customers about the turbines before asking how much land they have.

All of this comes despite the newly enacted bond bill, which – according to state Sens. William Oberle and Robert Venables, and state Rep. Gerald Hocker – was supposed to help to clarify the state law and make it easier for property owners to install green energy/renewable energy systems, not harder.

Oberle explained that HB 70 and its amendments established setbacks relating to the height of the turbine’s tower, so that, in the case of any malfunction, no surrounding property would be affected. (The original HB 70 had language regarding a minimum of one acre, but that language was taken out before the final passage of the bill.)

The setbacks are at “1.0 times the turbine height from adjoining property line,” and turbine height is defined as the tower height plus the length of one blade. He emphasized that the epilogue language in the bond bill should have resolved any issues with minimum land requirements, which would be considerably less than 5 acres under those setback requirements.

“Sussex County has decided they were still the dominant decision-maker in terms of placement,” he said this week.

Oberle explained that the language in HB 500 was intended to make it clear that HB 70 was the dominant law. He said Sussex County’s viewpoint – saying that people cannot even get a variance – is “absurd.”

“It’s beyond my ability to comprehend,” he said.

Oberle explained the intention of the bill was to promote alternative energy sources.

“My understanding – especially with the clean-up language – was to make sure there were no misunderstandings. And it has evolved into a turf war. And the people [wanting to install the systems] are the losers. It’s just ridiculous.”

Oberle also said that legislators thought they had “dotted our I’s and crossed our T’s. I never in 100 years would imagine that Sussex County Council would be so small-minded around this issue. That language was placed to make sure there could be no misunderstandings.”

He added that he thinks the county is “playing both ends,” in not allowing the placement of the turbines and yet not allowing hearings for variances, and using the same legislation to do both.

Asked to clarify whether there should be a need for the variance in light of the new language, Oberle said, “Typically, you could give a variance, but state law says you can’t? My understanding is, if you meet the setbacks, you can put one up,” he said.

Rep. Gerald Hocker concurred with the intent of the law, saying that legislators’ intent was to make it easier – not harder – on homeowners. He said it’s is as if “the county is taking it just the opposite of what we intended.” He also said the issue would be something legislators “would clarify when we go back” to Dover for the January legislative session.

Hocker also pointed out that county law cannot override state law.

Venables, a co-sponsor of HB 500, confirmed that the intent of the language in the law was to make it easier for people to have alternative energy systems – both solar and wind-powered.

“If memory serves me right, it was to make it a lot easier for alternative energy,” he said.

Venables said he didn’t remember specifically discussing the Sussex County’s 5-acre ordinance during the creation and passage of HB 500. He said legislators had wanted to make sure that homeowner’s associations, primarily, would not be able to restrict such systems.

He added that legislators did not spend too much time discussing the counties’ specific ordinances, if any, but that the 5-acre minimum in Sussex County was precisely the type of barrier they didn’t want people to encounter when endeavoring to put up a wind turbine.

“The very reason we did that is because we didn’t want people to have to have 5 acres,” Venables emphasized. “It was to remove the restrictions, not to make it more difficult.”

Menoche emphasized that Sussex County is standing by the 5-acre rule adopted years ago as a minimum acreage for windmills, and he has asked that they change or amend the ordinance, so that it will no longer restrict owners of 5 acres or less from be able to construct renewable energy systems, such as wind turbines.

Sussex County Councilman George Cole said the options to make such a change would be to introduce a new ordinance, or to “lobby the state to get out of the land-use business.”

Cole also asked about what towns were doing on the issue. For example, Fenwick Island last year capped a wind turbine’s maximum allowable height at 33 feet.

Citing HB 70, Fenwick Island Councilman Todd Smallwood said, “We can certainly hold our ground on the 30-foot height limit. And it’s not our fault if they don’t work” at that height. “It’s not our problem.”

Moore explained that it would be just as lengthy a process to get a county ordinance drafted, introduced and circulated, and to hold public hearings prior to possible adoption, as it would be to have the state legislation address the issue in January.

“We can’t just snap our fingers,” he said. “We feel this was not what the State wanted, but with passing it so late in the session, in the epilogue language, this is what we are faced with.”

Menoche said he did not get the direction he was looking for from the county council.

“It wasn’t, ‘All right, we can see where Planning and Zoning could change the policy.’ It wasn’t, ‘We’ll see where we can make changes. It was just. ‘All right, see ya.’”

He also asked why he, as a business owner, should have to file a lawsuit against the county to spur such a change, or wait until the next General Assembly session for changes to happen, when legislators have said their intention was clear.

Menoche said he also wonders where the enforcement from the state comes in and that he questions the original ordinance. He currently has two interested customers – one near Fenwick Island and one near Laurel, the latter a homeowner with more than 4 acres – and yet sits with his hands tied.

“Why 5 acres?” he asked, emphasizing the financial loss to the county, as well. “They are losing money because we’ve not been able to get any building permits.”

But Menoche also noted that, even in light of the new language – which the county interprets as prohibiting people from even being able to apply for variances for wind turbines on less than 5 acres – he had been to county offices within the past week and was handed an application and told he would need to fill it out.

That’s something the county council said they would address after it was brought to their attention on Sept. 14.