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January 20, 2011

Starting Over: Wind Power in Whitley County

Editor:

On November 17, 2010, the Plan Commission agreed that the process to develop a wind power ordinance, which was to go to a vote that evening, had been tainted by a previously undisclosed conflict of interest between the President of the Plan Commission and the wind power development company.  They decided to start over.
This is a huge project; and all projects essentially follow the same phases  that could be applied here:
(1) Conceive - something triggers an awareness of an issue; the situation is reviewed to understand what will happen under the current scenario if no action is taken; a preliminary analysis is done to determine the effects and materiality of the impact, and affected parties are notified.  
(2) Define - a ‘project charter’ is created that outlines the issues and needs, goals, objectives, risks, benefits, assumptions, deficiencies if any relative to the current status that need to be considered, and the anticipated format of the deliverable.
(3) Start - the project and plan is announced to the necessary and interested parties to obtain preliminary input, consensus, and identify resources; then the in-depth study and analysis (using independent professionals without a bias toward certain outcomes) begins, usually starting with obtaining all existing information related to similar situations - which will save time and avoid ‘reinventing the wheel’ but also requires considerable insight to determine how and why the given situation is different from the other situations studied.  
(4) Perform - do the work; the analysis is completed, published for comment, additional input is obtained, problems arise and are fixed; subsequent revisions are published for review and communicated for final input.
(5) Close - the final project deliverable is created and distributed.          
Except for using other counties’ ordinances as templates, the first attempt by the Whitley County plan commission appears to have gone straight from the first part of step (1) to a 'completed' step (5) - from becoming aware of the plans of a wind developer, to immediately creating a complete wind energy ordinance except for a single open issue related to setbacks, when it was presented in October for the commission's vote.  
The minutes of the March 2010 Plan Commission meeting, when this wind energy issue first appeared, indicate that “Whitley County has recently had applications submitted for the installation of wind energy conversion systems (WECS) or wind turbines on towers to be placed on private property.”  Per the minutes, the first step taken was by David Sewell to “research surrounding county wind ordinances… Noble , Steuben, and Wells …” - counties where it was noted later in those minutes that “there are no wind farms.”  Ordinance 'Draft A', substantially similar to those of these other surrounding counties, was created and submitted for the first time to the commission as noted in the minutes of the June 2010 meeting - just 3 meetings and 3 months later.  
 

Since the plan commission has decided to start over, the following might be considered to help repair the damage to the plan commission's credibility and do the job right:
1.    Admit to the public there is a project and THAT has been the driver of the apparent urgency.  This admission should not depend on what the definition of a 'project' is .  Clearly the creation of a wind ordinance by the plan commission was not simply a random act of inspiration, in anticipation of some unknown future possibility.  We all now know that Wind Capital Group initiated a 'project' by or before March 2010.  Let's put honesty and transparency back into the process.    

2.    Obtain independent legal opinion as to whether or not industrial wind turbine power towers can be erected in rural Whitley County zoned agricultural under the current ordinance.  As presented in the November meeting, there is strong, well-supported legal opinion that these cannot be installed under the current ordinance.  Make the legal opinion public.

3.    Answer, as a group, this simple question:  Do we want hundreds of 400' + wind turbine power towers in Whitley County Indiana?  Yes or No.  If the turnout at the November meeting is any indication, a far greater number of citizens in Whitley County would say 'No', relative to the 100 or so landowners that signed up that might say 'Yes'.  If, as stated by Plan Commission member Brandon Forrester in the November meeting, there are two sides to the issue and the commission's answer is 'Yes', then clearly state what the other side is - and support it with facts, figures and analysis.  Those of us who could be nearby landowners see 'one side' as the county establishing setbacks in an ordinance that are too close and allow wind developers to set towers in such a way that our property values and quality of life will be significantly diminished.  What, then, is this 'other side' that comes at our expense?  As is stated in the preamble of the current wind ordinance, this will be "beneficial to the County and its residents" (stated another way, it sounds like "the benefit to the many outweighs the harm to the few").  If you - the plan commission members, not the Executive Director - really believe it is fair that those 'few' should be expected to make such a huge financial and quality of life sacrifice, then by God you owe them a public explanation and very specific analysis.  And this time, be prepared to defend it.

4.    Understand the entire impact of your proposal.  If the creation of a similar Wind Ordinance with a WECS Overlay District is again the conclusion that is reached after starting over, then do the math.  Recognize that a setback of 1.1 times height to the property line, combined with a setback of 1,200 feet to a residence, means you have enacted an ordinance which could take away a non-Co-Applicant's full ability to use over 10 to 20 acres of his/her property.  Why does the plan commission believe it has the right to take away an individual’s right to develop or sell over 10 to 20 acres of his/her property?  Neither the wind developer nor a neighbor has the right of eminent domain, yet this essentially allows them to exercise it.     


Potential serious loss of property value is a major concern for rural Whitley County residents - and apparently some plan commission members as well.  Per the minutes of the March 17th meeting:  “Mr. Forrester stated his concern is for those who may have ground that they have been saving to sell for retirement, and because a turbine is erected, their property value is lost because no one wants to build a house next to a turbine.  Mr. Sewell commented that he does not know what the resolve is to that, which is an old land use conflict.”  Mr. Forrester stated again per the September 15th minutes, that “he does not think it is right to restrict non-participating (residents’) land use.”  

Explain how the plan commission reconciles this with its charge to preserve private property rights, given that the Whitley County Zoning Ordinance 'Basic Provisions' section 1.11 (D) states the commission is required to uphold "The conservation of property values throughout the jurisdiction."

5.    Will the Plan Commission stand for, and defend, the preservation of private property rights?   According to the current wind ordinance section WECS-02 (C):  "At any non-Co-Applicant residentially zoned lot... the audible A-weighted sound pressure levels as a result of the sound emitted by the WECS shall not exceed either, the greater of 45 decibels or, 5 decibels above the Ambient Baseline Sound Pressure Level of the wind farm project area at Critical Wind Speeds. At any non-Co-Applicant residence on Agricultural land … the audible A-weighted sound pressure levels as a result of the sound emitted by the WECS shall not exceed either, the greater of 51 decibels or, 5 decibels above the Ambient Baseline Sound Pressure level ...  Noise and vibration levels shall also be in compliance with all other applicable county, state and federal regulations."  

If the plan commission answers 'Yes', then it must publicly answer the following as well:

- Why is it acceptable to be louder for those that live in the country than those zoned ‘residential’?  Why is the decibel level proposed (51) higher than most counties' ordinances?  
- What exactly are the 'noise and vibration levels' that are applicable in 'county, state and federal regulations' with which the wind farm needs to comply?  If referenced, then tell us what they are.
- Why is there no 'enforcement provision' in this ordinance?  How will all this be enforced?  Per minutes of the Sept. 15th meeting: “Mr. Sewell would be the one enforcing the provisions of the ordinance” which begs the question:  How?  To wit -
- In what manner will a 'non-Co-Applicant' file a complaint when noise and vibration are excessive?
- What will be the criteria for acceptable evidence?
- How will a (presumably independent) 'enforcement entity' verify complaints?  What equipment will be used to record proof, for what period of time and under what conditions, day and night?  When a complaint is independently validated, and the problem can't be fixed to the landowner's satisfaction, what is the recourse - will the ordinance require the offending wind turbine to be torn down?
- When (not if ) the wind developer subsequently asks for variances that will clearly negatively affect the non-Co-Applicants, even though they knew the rules up front (for example, shorter setbacks in some cases or higher acceptable sound decibels), what can residents expect the county's response to be?  

6.    Ensure that your plan and work will 'pass muster' for independence and transparency.  Involve county residents that expect to be affected by the ordinance, and independent professional resources.  Do not rely on information from the wind developers, other counties' ordinances where there are no wind farms, and do not lay the responsibility or the work at the doorstep of the Executive Director.  It’s your responsibility, not his.  To the degree that the plan and work are not public, transparent, and independent, the plan commission may find itself continually accused of questionable behavior and 'backroom' deals.


7.    Don't just copy ordinances of other counties and say 'if we do what they did, it'll be good enough'.
We're not the same as Benton or White counties (or others) - as already proven, our population density is much greater and, as stated by Mr. Sewell per the minutes of the May 19th plan commission meeting, “farms in White County are … thousands of acres compared to Whitley (where they are ) several hundred acres.”  Go back to those counties where there are actually wind farms with hundreds of 400' wind turbine power towers and ask county officials as well as residents, what's worked and what didn't.    What were the 'lessons learned'?  What would they do differently if they had to do it again?  Would they do it again?  Otherwise, you're just copying their mistakes.  "And if the blind lead the blind, both shall fall into the ditch" (Matthew 15:14).  

8.    Propose setbacks supported by mathematical and analytical processes, not just a member 'vote'.  There is a better way than just throwing numbers against a wall to see what 'sticks'.  Engineers, medical doctors, audiologists, realtors, and other professionals should be consulted to determine any setback.

9.    Know your partners.  Obviously much of the information and influence already incorporated into the existing wind ordinance came from Wind Capital Group (WCG).  It cannot be a coincidence that the setbacks the WCG says are ‘standard’ to make a project feasible are being pushed into the ordinance.    

Whether the plan commission realizes it or not, if the ordinance they approve allows wind developers like WCG to do projects, then they are ‘hitching their wagon’ - the county’s wagon – for a very long time to the same developer as the landowner who signs a lease.  

WGC had to knowingly seek out the President of the Plan Commission with a lucrative lease agreement.  The citizens of this county do not yet have complete assurance that no other plan commission members' relatives have done the same.  Regardless of the Plan Commission President’s motives or whether or not he realized the consequences, there can be no doubt that WCG knew.  This is an unscrupulous company.

WCG is a subsidiary of NTR plc  located in Dublin, Ireland, one of the most ‘broke’ countries in the world, and NTR is not profitable.  And its annual losses are increasing.  NTR lost 286 million euros for the year ended March 2010 (at 1.35 = $385 million ); in 2009, it lost $61 million.  If the rate of loss in 2010 continues, the company's equity of 680.1 million euros  (about $918 million) will be exhausted and it will be bankrupt in less than 3 years.  In that event, it is doubtful that the country of Ireland would bail out NTR as 'too big to fail.'  Presumably this would make it difficult for WCG to pay the leaseholders for 25 years (if I signed a lease agreement, I think I'd want to know that).  It could obviously lead to considerable legal and financial problems for the county as well.

10.    The plan commission is creating a set of rules that could completely change the face of the county, have a significant negative financial impact on many of its residents, and negatively affect the quality of life for many of its residents - forever.  So after you finish your work and are getting ready to deliver your proposal to the public, go back out to Benton and White counties again for a day; get up close; pretend you're in your own backyard; then make sure what you are proposing is something that you could accept every day the rest of your life if that’s where you owned a house and lived.

Nick Stanger


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