Bethany Beach planning commissioners this week continued their work on town legislation related to “green” energy systems with work on a second draft of a proposed ordinance on solar energy systems.
The legislation is expected to move forward in coming months after the commission holds another of its roundtable meetings with industry experts – a process that generated high praise for its new geothermal heating and air systems legislation. That roundtable is expected to happen in November.
Commissioners made minor changes to a first draft of their legislation at their Aug. 22 meeting, incorporating some suggestions from a neighbor of Commissioner Fulton Loppatto. He said the neighbor has solar energy systems installed on two of his homes, including one in Bethany Beach.
Among those suggestions was to specify in the “legislative intent” section of the ordinance that the town would like those installing solar energy systems to avoid using the front-facing slope of roofs whenever possible, for aesthetic reasons.
The top point of a roofline also remains a concern in the town, with suggestions that the legislation require roof-mounted systems to be located so as not to increase the structure’s height above the town’s allowable limit, though Loppatto said his neighbor recommended the town allow them to exceed the height limit, but by no more than 1 foot.
Commissioners said they were skeptical of allowing even that much leeway for solar installations.
“That’s what the Board of Adjustments is for,” said Council Member and Commission Chairman Lew Killmer, suggesting property owners should go through the process of applying for a variance for exceeding the town’s height limit. “Once you open that door, it becomes ‘How about letting that be a little higher? How about that a little higher?’ They can ask for a variance.”
Commissioners also noted that solar systems are sometimes lifted above the structure’s roof peak to maximize their efficiency, and while not all are necessarily above the roof peak, they can go above ridge lines. Loppatto pointed out that the installations can also be angled more steeply than the roof pitch, to maximize solar production.
Killmer said he hoped to have participation in the November roundtable from manufacturers of solar energy systems, vendors who install them, a consultant or expert in the field of solar energy and interested members of the public. The town will also have an architectural expert available, as new building inspector Susan Frederick is a certified architect and will fill the ex officio role of that position on the Planning Commission.
On Aug. 22, Killmer also noted the limited amount of guidance for installing the systems that is provided in recently passed state legislation designed to prevent new local legislation or home owner association rules that would prohibit installation of solar and wind energy systems.
“It’s unbelievable,” said Killmer. “It’s so short you can read it right now - but it doesn’t say anything.”
Loppatto said he figured state legislators’ expected to have property owners installing such systems still be limited by existing municipal building codes, such as the town’s building height limit.
Killmer emphasized that he had carefully reviewed the state legislation. “I wanted to make sure we wouldn’t be in violation, that we weren’t doing anything the state doesn’t want,” he said.
One key difference between the proposed town legislation and the state legislation is the state’s reference to “solar photovoltaic systems,” while the proposed town legislation refers to use of “solar energy systems.”
Killmer said that difference was intentional, because the town intends to include in its legislation passive solar systems, which he said “can be as aesthetically not done well as photovoltaic.”
Wind-energy systems on back burner
Commissioners reiterated last Saturday that they do not plan, at this time, to tackle the issue of wind energy systems, which were likewise impacted by state legislation this summer, in that they cannot be prohibited in many cases. The commission sent the issue back to the town council this summer, for their guidance, and the council elected not to continue work on the issue.
Killmer noted that the new state legislation says that municipalities, county government and home owners’ associations cannot prohibit either tower-mounted wind systems on properties of larger than 1 acre or the installation of any type of roof-mounted turbines.
“But there’s no mention of whether you can require a variance,” he pointed out.
That leaves town – and county – officials in the dark as to whether to continue what might have been the ordinary process in the case of a property owner wishing to install a roof-mounted wind system on a home already at or near a building height limit. Roof-mounted residential systems typically require 6 to 8 feet of clearance above a roof for preferred conditions for power generation.
“I don’t know if we can stop them,” he said. “It’s not clear to me. The state law says you cannot refuse to allow them to put up a roof-mounted turbine, but it doesn’t say whether they can do it if it would violate municipal code already on the books.”
“It may be an issue of maximum height,” he concluded. “Ideally, they’re installed 6 to 8 feet above the house, and, at that height, you’re way out of our code. But does the state say you cannot say, ‘No’ to this person? It doesn’t make clear to me whether, if you have laws on the books about maximum height, whether you can say no.”
Killmer noted that Ocean City, Md., officials had recently adopted legislation that said that, if installing a wind-energy system would require a variance from the town, property owners simply can’t install that system. There is no ability for Ocean City property owners to request an exception in those cases.
The state code does deal with issues of noise and reflections caused by a wind-energy system, as well as requiring that tower-mounted systems would stay on the property if the tower were to fall and requiring a 1-acre lot size for installation to be a right. But, he emphasized, it says nothing about the height of roof-mounted systems.
Loppatto said he also felt that the issues surrounding wind-energy technology are still being discovered.
“Solar and geothermal are kind of proven tech,” he said, noting that wind power has been popular primarily in rural areas. “It’s going to be a while before we get some new technology,” he predicted, noting that Delaware manufacturer Flexera is working on such technology, “before they have a design somebody wants to put on their house.”
Killmer said he was aware of one property owner who had put a wind-energy system on his home in the Poconos but then took down because, when it was windy, it was shaking the whole house.
Locally, wind-energy systems have more commonly been installed in the form of tower-mounted systems on larger properties, but Sussex County’s Board of Adjustments has also had a number of requests for variances to allow roof-mounted systems in residential neighborhoods. County officials, too, are working to determine what impact the new state law has on that existing process.
Also on Aug. 22:
• The commissioners scrapped plans to begin a discussion of potential remedies to help protect residential properties that are adjacent to the town’s commercial districts. The move came at the recommendation of Town Solicitor Terence Jaywork, as the town is currently involved in a lawsuit related to the issue. Killmer said the commission could deal with the issue once the courts have weighed in.
• Commissioners said they would hold their October meeting early, on Oct. 3, to consider the application by the Cooper and Addy families for combining of property on Kent Avenue for a planned major subdivision to contain 16 single-family lots. The commission is also set to complete a public hearing and consideration of the preliminary subdivision plan for the project on Oct. 3.
Killmer said he and town officials hoped to get together prior to Oct. 3 with the people behind the project to deal with issues raised by the town engineer over those preliminary plans, including a required tree inventory and concerns about stormwater management. He noted that prior issues with Delaware Department of Transportation approvals for the project had been resolved in recent weeks.
No September meeting of the commission is planned.