Wind project plans prompt commissioners to impose moratorium on zoning rules | Select

The moratorium means that Madison County’s existing zoning rules adopted in 2018 — which favor wind farm development — will be sent back to the county’s Planning and Zoning Commission for review for possible changes. The Joint Planning Commission can then make recommendations to the County Council for changes it deems necessary, though the commission could decide the rules are fine as is.

Tuesday’s discussion was the result of a last-minute addition to the agenda of the commission’s board meeting at Schmidt’s request on Monday morning, just over the required 24 hours before the meeting was to begin.

Schmidt said he added the item to the agenda late at the recommendation of a central Nebraska attorney. He said his moratorium proposal was not intended to stop wind turbines in Madison County but instead was intended to give officials time to review issues that could arise from wind energy projects.

Among Schmidt’s concerns were dust control during the transportation of turbine equipment; the ability of county roads and bridges to withstand the transportation of equipment; aviation applications; insecticides; shadow flicker; setbacks; and retiring turbines after they expire in 20 to 30 years. He also said wind turbines are being built taller now than they were six years ago.

“So I want to make it clear right away that the moratorium is not intended to stop wind turbine construction,” said Schmidt, who recently voted to approve the construction of weather towers in western Madison County by wind companies looking to evaluate the feasibility of building wind farms.

He recommended a moratorium of at least six months.

“New evidence” is needed

Heather McWhorter, county administrator for planning and zoning, addressed many of Schmidt’s concerns, explaining that in order to impose a moratorium, new evidence is needed to show that the county’s current zoning regulations create an emergency health hazard.

The regulations adopted in 2018 were the subject of public hearings at both the Planning Commission and the Commission’s board meetings, McWhorter said, and the Planning Commission recommended the regulations after extensive research, lengthy discussions and public comment.

Any wind company that builds an operation in the county will be required to sign a road use agreement and obtain a permit from the Federal Aviation Administration, which will require notifying landowners who will be using the equipment to spray crops.

Truck routes used by wind companies would be established by the county board as part of a conditional use permit for any wind farm development, McWhorter said. The potential use permit would also include a decommissioning bond subject to approval by the board of commissioners.

“So I understand Ron is concerned about those things,” McWhorter said. “But we talked about there being things that will be added to the conditional use permit when it’s applied for. And the moratorium … that’s like an emergency. So if new evidence comes out or something like that, (or) if we find out there’s a manufacturing issue that’s going to impact us, let’s say, ‘Hey, we should probably come in here and change something because there’s new evidence since 2018.’

“That’s what we would do with a moratorium. As a zoning administrator… I don’t see any reason for a moratorium because we only introduced zoning regulations in 2018.”

The board then imposed a 12-month moratorium while it adopted revised zoning regulations. At the time, McWhorter said, there were no zoning regulations for wind towers, which justified the moratorium recommendation from the planning commission and the subsequent vote by the county board.

Madison County District Attorney Joe Smith urged the board to be cautious in deciding whether to vote for a moratorium because there are already leases in place with landowners and weather towers in place.

If the zoning law issue went to trial, he said, the judge would apply a test of whether wind companies had fundamentally changed their positions regarding the wind farm plans. The court would also apply a “good faith, bad faith” test to the moratorium and subsequent zoning law review.

“Are you acting in the overall public interest or do you just want to get the project done?” Smith asked.

Schmidt said it would take two years for wind energy companies to conduct research to determine next steps.

“So I don’t see any reason right now why the moratorium would in any way harm or violate anything on the wind company’s part,” Schmidt said. “… And so I just say, let’s take a breather.”

McWhorter said if zoning laws are changed, wind companies would have to create new site and engineering plans, which could cost them the money they were hoping for, and the county could be responsible for that. Changing setback laws — which determine the closest a turbine can be built to an opponent’s property — would change the entire landscape of wind projects, she added.

“This is not the end of these things”

Uhlir said he did not intend to put the county in a position where it would be held responsible.

“I understand the security perspective and I make sure it’s the right thing to do,” Uhlir said. “But I think if there’s a moratorium, it’s not to end it. That’s the reality.”

The board chairman said the moratorium would allow time to review documented evidence of wind turbine impacts from credible sources, not just rumors or video footage. He made clear that voting for the moratorium does not mean zoning laws will be changed.

“(I hope) everyone in this room understands that a moratorium doesn’t necessarily change anything,” Uhlir told a group of about 30 meeting participants, most of them opponents of wind farms.

Uhlir said he didn’t think the moratorium would need to last longer than four months.

Stinson said he wouldn’t oppose a moratorium, but he also opposes exposing the county to liability. Officials need to be careful, he said, not to make zoning rules so restrictive that wind farms become impossible in Madison County.

“People have been reaching out to me (and saying) whatever we do, we have to do it so that they (wind farms) never happen, never exist,” Stinson said. “And that’s not my intention.”

At recent county council meetings, which held public hearings on proposals to build weather towers, commissioners were accused of dishonesty and undermining authority, largely because many opponents of wind power were caught off guard by the wind companies’ impending proposals to the county council.

“And I feel like it happened today,” Uhlir said. “Because I didn’t know until 10:00 yesterday (Monday) that this hearing was going to happen. So there are two sides to this. And I’m not talking about you, Ron. I just don’t like this process.”

Schmidt stated that the late addition of the item to the agenda was at the request of his own attorney (not Smith) and that others had asked him to propose a moratorium.

“But I take full responsibility,” Schmidt said. “If people feel like I’m acting suspiciously, I think you know better.”

Uhlir replied, “Yes, I believe, and that’s why I was really surprised.”

Madison County Clerk Anne Pruss said she received a public records request from a media outlet regarding a “suspicious” item that was added to the agenda.

McWhorter, meanwhile, said she also wasn’t notified of the revised agenda until Monday, even though the issue directly affected her department. The late addition left her and others unprepared, she said.

“I think that was the goal of doing it at the last minute,” McWhorter said.

John Dittrich, a wind energy advocate who signed a lease with the wind company, said landowners and companies involved with easements had virtually no opportunity to prepare for and participate in Tuesday’s meeting.

Commissioners taking action Tuesday would disenfranchise 409 Nebraska landowners — 320 of them living in Madison County — who signed the easement application, Dittrich said.

“With all due respect, Ron, you say you don’t want to stop the wind, but if you move the offsets to a certain area, you can kill all wind projects,” he said. “If you change them, you’re willing, by default, to kill a potential wind project. That’s the optics.”

Uhlir plans to hold a meeting during which both sides of the dispute will be able to speak and “credible” people will be able to reveal information.

Meanwhile, officials responsible for planning and spatial development will take up the issue at a meeting in August.

“The bottom line is I think it’s going to be an ugly process. I really do,” Uhlir said. “I mean, it’s not going to be friendly; it’s going to be ugly. And what it boils down to is that we’re all going to go through this again, with the potential that nothing will change unless we find the basis for change.”