Blatant Bribery--"Maine-- the way life SHOULD be"???

I grew up in a home where we Bessey children were expected to conform to a certain set of principles. My parents were strict, but not unreasonable. They accepted the fact that as their children developed and grew--we would occasionally feel the need to ‘buck the system’. It’s only natural to rebel against authority. But even though Mum and Dad gave their children some leeway and practiced a bit of forbearance, there were some things which were not tolerated. Period.

Lying was not allowed. It was far better to have broken a rule and admitted to it, than to have lied about it. Neither was stealing acceptable--or unkindness, or swearing, or breaking the law. Disrespect was not looked upon favorably, but I think Mum and Dad recognized that young adults didn’t always display the best judgment, and once in awhile, we could rebel against them (and them, only--and somewhat respectfully) without suffering any grave consequences.

But that was when we were adolescents. Our brains--and our personalities--were still expanding and being cultivated. It was always taken for granted that—as adults—we would ‘know better’. That the foundation given us of morality and propriety would serve us well and guide us into adulthood.

I’ve been reviewing the revised permit application which Highland Wind, LLC submitted to Maine’s Land Use Regulation Commission two weeks ago; on December 28, 2010. For those of you who follow this blog, you will know that the original permit application was submitted one year ago. It was deemed ‘complete’ by LURC at the end of January, 2010 and the Friends of the Highland Mountains worked feverishly for the next two weeks to gather enough petition signatures to convince LURC to grant us a Public Hearing on this wind development proposal.

In March 2010, at the first LURC Commissioners’ meeting wherein HW LLC’s permit application was part of the agenda, we learned from the Commissioners that the permit application was NOT, in fact, complete--and we lodged a formal complaint requesting that the ‘expedited permitting clock’ be stopped, and the permit set aside until such a time as the developers met the ‘completeness’ standard. At the April 2010 meeting, the Commissioners agreed to pull the application, citing the fact that Highland Wind, LLC, did not have sufficient title, right or interest (TRI) in a parcel of land which they needed to cross in order to transmit their wind-generated power from Highland Plantation to Wyman Station.

Yesterday, I began to review Highland Wind LLC’s revised permit application. What I read should deeply trouble every Mainer. Every American! For in this permit application, Highland Wind LLC offers what I consider to be a blatant bribe to a government agency.


This is a quote taken from the permit application submitted by Angus King and Rob Gardiner, the principles in Independence Wind, of which Highland Wind, LLC is a subsidiary. I took it from the ‘tangible benefits’ section of the application…

For the Maine Department of Conservation, Bureau of Parks and Lands: Highland Wind will provide $1,040,000 to the Maine Department of Conservation, Bureau of Parks and Lands (BPL)over a twenty year period, as a “donation for land or natural resource conservation” pursuant to 35-A MRSA §3451 (1-C) (C). This land or natural resource conservation will be comprised of two
Elements:

A. Permanent protection for Stewart Mountain from the development of wind turbines. On or before the triggering date, Highland Wind shall execute or cause to be executed a legally sufficient document that will extinguish in perpetuity all rights of any current or future landowner to site wind turbines on the land comprising approximately 572 acres on Stewart Mountain that was previously proposed by Highland Wind as the location for eight wind turbines. The current fair market value lost for extinguishing these wind turbine development rights is $253,000.
B. Payments for Additional Bigelow Preserve Viewshed Protection. Highland Wind will made twenty annual payments of $39,350 to BPL, to be used for protecting the viewshed from trails in the Bigelow Preserve. Over 20 years, BPL will receive $787,000 in total annual payments. The initial annual payment from Highland Wind is due on the triggering date. In the alternative, and at the request of BPL, Highland Wind is prepared to make the entire 20-year value of these twenty payments available to BPL as a single, lump-sum payment due at the triggering date, with the
lump-sum amount calculated as a net present value of this twenty-year income stream.
All payments owed to BPL would be distributed by Highland Wind to an agreed-upon third-party escrow/disbursal agent and placed in a segregated, separately invested and administered Bigelow Preserve Scenic Viewshed Fund. (Viewshed Fund). BPL will be granted the authority to use the monies in the Viewshed Fund to acquire in fee or easement properties that it deems to be valuable for protecting the viewshed from trails in the Bigelow Preserve. At BPL’s choosing, a modest percentage of these funds (e.g., 10-20%) could be used for viewshed trail maintenance activities in the Preserve.
(The statute quoted therein may be found in the Expedited Wind Permitting Law.)

Okay. If you’ve read this far, then you probably know where I’m going with this. But in case you don’t, I’ll spell it out.

The Bureau of Parks and Lands is a State agency which operates under the Maine Department of Conservation. The BPL is also listed (as is the Friends of the Highland Mountains, the Maine Appalachian Trail Club, and many others) as an ‘intervenor’ in the original Highland Wind, LLC permit application which was submitted one year ago.

The approval or denial of a permit for this wind turbine development will be decided by the Land Use Regulation Commission. That agency (LURC) is also an agency under the direction of the Department of Conservation.

I’ve spoken in the past about the ‘tangible benefits’ and the ‘mitigation’ which is allowable under the ‘Expedited Wind Permitting Law’. I’ve openly called this practice ‘State-sanctioned bribery’. Wind developers have been allowed to go into towns wherein they hope to construct these developments and offer ‘cash incentives’ to people and businesses in the hopes that they will support their projects. In fact, Maine law compels them to spend money in these communities. I have always believed this allowable practice is corrupt and morally wrong.

But here, in this revised application, the developers have descended to new depths. In an open and public document, Highland Wind LLC is blatantly offering a bribe of more than three-quarters of a million dollars to an agency of the State of Maine. They are offering an inducement to the same agency which will be deciding its fate—deciding whether or not to consent to their permit--the approval of which will allow Highland Wind, LLC to acquire millions of dollars of tax-payer subsidies.


This is illegal, is it not? Is this not immoral? To my way of thinking, it is unconscionable! The Maine Attorney General’s Office should—no, it must--investigate this. And then—the AG should prosecute to the fullest extent of the law.

Mum and Dad would have warmed my rear--at the very least--if I’d ever tried to pull off something so despicable—no matter what the scope. I call upon the Attorney General and the People of the State of Maine to take a stand.

This type of corruption has been over-looked and tolerated for far too long. Wind developers are desperate to acquire their cash rewards, and it has become apparent that there are no depths to which they will not sink.

I’m not willing to sit back while this great State goes down with them. It's time that we, the People, stood up and condemned this type of practice.

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A friend just told me that--while it SHOULD be illegal--this type of payoff is NOT illegal, because the state of Maine allows it. Wind developers are required to pay a 'community benefit' of $4,000.00 per turbine per year (not each and every year, necessarily, but annualized) when they build a wind facility. I do not change my stance on this issue. That three-quarters of a million dollars is not being offered to Highland, or to a private organization which could invest the money in conservation or natural resource protection. That money is being offered as an inducement to the very State Agency which is deciding whether or not to grant Highland Wind LLC's permit. That is wrong. And if LURC takes this application under consideration, they will have a huge conflict of interest. I don't care if Maine has 'allowed' this type of thing in the past, or not. It's wrong.

It's wrong.

Sight and Sound-- Sufficient!

The last few weeks have been incredibly intense and fast-paced, and I apologize for not posting to GAG more often. As many of you know, my family lost our beloved mother and grandmother, Ruth Dolley, on November 28th. In addition, the Friends of the Highland Mountains held a big fund-raiser/comedy/music event in Kingfield on Saturday night. And then… there was Thanksgiving—and now, we are all preparing for the upcoming holidays.

Phew….

I have a lot I’d like to say. I’m sure that comes as no surprise, as I’ve never been one to sit quietly in a corner as nothing more than window dressing or eye candy. Snort!!! Oh, fine! I’m neither, but I AM a woman who likes to communicate!

Last night I attended an ‘informational meeting’ on mountaintop industrial wind sponsored by the Somerset Economic Development Corporation. I respect the mission statement of this group. Who among us doesn’t want economic development, especially when times are so tough? But this ‘informational meeting’ was not a fair dissemination of the FACTS about industrial wind. This forum was designed to peddle Big Wind in Somerset County, based on the promises of significant monetary gain to the county. Promises made by developers of Big Wind.

Jim Beatty, the president of the SEDC, openly admitted his bias. He WANTS these wind developments—in Highland, in Bingham, in Mayfield and Moscow and Caratunk and Lexington and Concord. He supports TIFs (Tax Increment Financing Agreements) for these developers. I can’t speak for Jim-- a man whom I like--but my sense is that he can’t see the forest for the wind turbines. His goal—his organization’s goal—is to spur the local economy, and short-sightedly, he believes that goal can be met by catering to wind development in our county’s most wild places.


What I don’t believe he fathoms is what the long-term effects of hundreds of miles of 400’ tall turbines atop our mountains will be. I’m not sure he and many others yet understand that our future economy is directly tied to the fact that we here in Maine have what so many other places have already—and regrettably-- sacrificed. We have unspoiled vistas. Abundant wildlife. Open land for hunting, hiking, camping, snowmobiling, skiing. We can still find places where there is no artificial light on our horizon. We can still sit in silence.

Silence. And darkness. Do you realize how rare those two things have become?

I’ve been exasperated by the fact that wind supporters have unfairly labeled opponents of industrial wind as selfish people whose only concern is for their ‘view’. That is undeserved, and it is shameless and slanted propaganda. There is so much else about this wind plan which makes it a terrible idea. In a future posting, I will go into some of those other reasons, as I have in the past.

But what if it WAS just about the look and the sound of these colossal machines? What if? Is it really so bad, to oppose them for that reason?

Knowing that Maine does not need the power that wind will produce…

Knowing that wind energy does not significantly reduce carbon emissions…

Knowing that wind turbines have been proven to emit noises which are detrimental to humans’ health when those humans are subjected to them for long periods of time…

Knowing that wind turbines do not even need to produce electricity in order for the developers to cash in-- and that up to 60% of that ‘cash’ comes from our pockets in the form of multiple types of subsidies…


Knowing that without the proposed placement of wind developments on our pristine ridges, Maine would not need the $1.4billion transmission upgrade, which will cut a 400+ mile swath through 75 Maine towns-- and which will be paid for, in large part, by every CMPC customer, regardless of whether we need or use that power…

Knowing that ‘wind power’ is being used as the catapult for installing ‘smart meters’ at every CMPC-serviced household in Maine so that our electricity usage can be monitored and regulated, and knowing that the cost of this ‘upgrade’ is ALSO being paid for by us (from American Recovery Act Stimulus funds) and that many CMPC employees (meter readers) will lose their jobs once this installation is complete….

And knowing that Maine citizens lost their right to oppose wind development due to aesthetic value, even though that very ‘value’ is what brings vacationers and retirees to Maine, and what causes many of us locals to stay…

So, let’s take all that other stuff out of the equation. Let’s suppose that I, a NIMBY of the First Order (and proud of it!) decided to oppose industrial wind due, solely, to its look and sound.

I purchased my homestead for its lovely mountain views and its solitude; for its location away from all the hustle and bustle of town or city life. My husband and I sacrificed convenience for a quiet place in the country. Many of my friends and neighbors have done the same thing.

Many of my neighbors also make a living from the land. They are guides and sporting lodge owners. They are proprietors of diners which cater to both locals, and those ‘from away’. They are real estate agents; they are workers in the tourist industry. They rent camps to hunters and snowmobilers. Some of them don’t draw a paycheck from the land, but they support their families in other ways unique to rural life. They raise farm animals. They grow vegetable gardens to feed their families, to share with others, or to sell at local farmers’ markets. In many cases their livelihoods and their lives are dependent upon the natural resources which surround us.

If you haven’t had occasion to view the types of wind turbines slated for these mountains, perhaps you can’t comprehend their massive intrusion into our landscape. These things are HUGE. Not merely big, but staggeringly immense.


Their blade sweep is more than an acre and a half in size. Picture a Boeing 747. A jet that size would fit within the area though which those blades course.

These turbines are more than TWICE as tall as Maine’s tallest skyscraper—those tall buildings confined to within city limits. LURC has a 25 foot height cap for other structures in our unorganized territories. This limit, which we average citizens must build in conformance to, is due to the adverse visual impact such structures would have in these rural areas.

Wind turbines must be lit with flashing red lights. They are so tall that they create a hazard for air traffic and therefore, must be lit. And while you may not think seeing flashing red lights above the horizon is a big deal, it is. Our area of Maine is the very last place on the eastern seaboard—except for Key West—which does not have light pollution. We enjoy dark night skies, and a view of the firmament in all its natural glory.

During two summers in the late 1990’s, we hosted a teenager from New York City as part of the Fresh Air Kids program. I don’t think I ever appreciated what we had until I saw the night sky through the eyes of a child who had never viewed the stars, or seen a comet or a meteor or a constellation.
Recently, I had to travel to Northport for an awards ceremony, and I drove to within a few miles of the three wind turbines at Beaver Ridge, Freedom. Only three turbines, but the sight of those flashing strobes was an anathema in an otherwise bucolic setting. I could only imagine what it would look like to have our ridges peppered with those, all across the state.

And then… there is the sound. The NOISE. Noise like a jet passing overhead-- but perpetual. Endless. And that doesn’t take into account those noises which cannot be picked up by our human ears, but which can be felt imperceptibly by our bodies’ systems. I have met and spoken with Maine victims of Wind Turbine Syndrome. Men whose doctors have told them: “Move. Your health is at risk!” Women who can’t sleep, can’t relax, have heart palpitations and high levels of anxiety. Our DEP does not have sound standards which are designed to protect Mainers from turbines’ unique noises. Until they do, and until they enforce those new standards, a wind turbines’ sounds will absolutely be part of the equation when debating their presence in our neighborhoods.

What I’m saying is this: If the sight and sound of industrial wind turbines WERE the only objections we Mainers had, I think that would-- and should-- be enough to stop this disastrous plan for our state. When we include all the other scientific and economic reasons why wind doesn’t ‘work’, the answer is simple.

Industrial wind developments do not belong in the state of Maine.

Guidelines for Municipal Regulation of Wind Power

What follows is rather long, but it provides an excellent guide for municipalities who are facing potential wind turbine developments.

Municipal Regulation of Wind Power
(from Maine Townsman, March 2010)
by James N. Katsiaficas, Esq., Perkins Thompson

The combination of volatile oil prices and the need to reduce greenhouse gas emissions is leading consumers, business and government to seek alternatives to fossil fuels to generate electricity. One resource Maine has as an alternative to fossil fuels to generate electricity is wind. The Governor’s Task Force on Wind Power issued a report in 2008 identifying the significant land and offshore wind resources in the state. This report notes that wind power will be an important contributor to the state’s energy mix, and establishes wind-energy generation goals of 2,000 megawatts of installed capacity by 2015 and 3,000 megawatts of installed capacity by 2020, with approximately 300 megawatts from offshore wind and coastal waters. (By comparison, an average nuclear power plant generates about 1,000 megawatts.)
While the greater use of wind power to generate electricity may seem a viable alternative to fossil fuel electrical generation in Maine, as with any use, commercial wind power energy presents issues for Maine municipalities to address. The term “commercial wind power project” as used in this article means what the Governor’s Task Force Report refers to as “grid-scale” wind power development -- development that is large enough to trigger review under Maine’s Site Location of Development Act (“Site Law”), because it is a development that occupies 20 or more acres or has disturbed area, including structures, of three acres or more. Another definition of “commercial wind power project” would be a project that generates 100 kilowatts or more of electricity for sale or use by another party.

Some issues, such as whether commercial wind power is a desirable use at all, whether it is a cost-effective alternative to oil and to other alternative energy sources (such as hydropower) and whether the location of wind power projects near scenic vistas in western and eastern Maine is consistent with the preservation of Maine’s natural environment and surroundings and with the branding of Maine’s “sense of place,” are more global policy issues that are better addressed at the state and federal government levels.

Other, more site-specific issues are appropriately addressed at the municipal level. Assuming that wind power is a lawful use that has its place among the various land uses that might occur in Maine communities, this article focuses upon the more site-specific issues that are within the scope of municipal land-use review. For example, the movement of the sun through rotating turbine blades as seen from a nearby dwelling or business can produce the effect of alternating sunlight and darkness -- the phenomenon called “shadow flicker” -- for a period of time each day. Rotating turbine blades and the turbines themselves generate noise, both audible and low frequency (which may be felt as vibration). Snow and ice can be thrown from rotating turbine blades. In the unlikely event that a tower would fall, the site would need to accommodate its length in order to avoid harm to adjoining users, structures and properties. Also, there are impacts on the environment, from the development of large land areas for commercial wind power systems and from the effects of turbine blades on birds and bats. In addition, there is the impact of commercial wind power development on adjoining scenic and recreational resources.

As with the potential adverse impacts of any use, these are not reasons to prohibit commercial wind power development entirely from a community, but instead are reasons to responsibly regulate this use to ensure that it is compatible with other land use activities and uses in the municipality. This article reviews current federal and state regulation of commercial wind power and, as to municipal regulation, outlines potential local concerns, municipal regulatory authority and the planning, zoning and land use tools that can be implemented by exercising that municipal regulatory authority.

Federal and state regulation

Before discussing the details of municipal regulation of commercial wind power, it may be helpful to review regulation at the federal and state level.

There are several ways in which a commercial wind power development might be subject to federal regulation. Wind power projects on federal lands (and perhaps offshore projects) may require U.S. Environmental Protection Agency National Environmental Policy Act review, in the form of an environmental assessment or impact statement. Concerns about endangered species and migratory birds may require a U.S. Fish & Wildlife Service review; this agency has issued interim guidelines to protect wildlife resources and to streamline permitting. The Federal Aviation Administration requires approval for structures greater than 200 feet in height above ground level in order to avoid or minimize obstruction to navigable air space; its regulations also require appropriate lighting. If fill or dredging is necessary as part of a project, a U.S. Army Corps of Engineers permit may be required.

Please note that at present, nothing in federal law preempts or limits municipal regulation of wind power development. This is an important consideration. In many ways, the land use concerns regarding wind power are similar to those associated with cellular telephone towers but, while federal law bans municipal regulation of wireless facilities that prohibits or has the effect of prohibiting wireless communications, there is no such federal prohibition or restriction on municipal regulation of wind power development.

On the state level, several statutes and regulations might come into play with regard to commercial wind power projects. The Site Law most likely would be triggered by such a project. This would require an applicant to comply with the Site Law and the corresponding Maine Department of Environmental Protection (DEP) rules, including Chapters 375(10) (“Control of Noise”), 375(14), (“No Unreasonable Impact on Scenic Character”) and 375(15) (“Protection of Wildlife and Fisheries”). The Natural Resources Protection Act (NRPA) also can be triggered by development in fragile mountain areas, over or abutting stream crossings and abutting or near wetlands. In addition, if an area of an acre to more is disturbed by a project, a stormwater management permit may be necessary.

Also, Maine’s Legislature enacted a bill in 2008 implementing recommendations of the Governor’s Wind Power Task Force (P.L. 2007, c. 661) which streamlines review of wind power projects. In particular, it creates “expedited permit zones” which include virtually all of the organized areas of the State and that area of the unorganized and deorganized territories which LURC has zoned (approximately 1/4 to 1/3 of the townships in the unorganized and deorganized territories). Decisions by DEP and/or LURC generally are issued within 185 days of application (270 days if a public hearing is held). In these expedited permit zones, LURC and DEP review standards are amended, particularly with regard to protection of scenic resources and fitting harmoniously into the existing natural environment. This law explicitly provides that “This act is not intended to limit a municipality’s authority to regulate wind energy development.”

Municipal Regulation

What concerns does a commercial wind energy project raise that a municipality might want to regulate?

Many potential local concerns involve the location of commercial wind power projects. These include safety of uses and activities on the same and on adjacent property, fall-down zones, shadow flicker, wind access and conflicts between incompatible uses. Failure to appropriately site projects and to provide adequate setbacks from adjoining buildings and properties may result in adverse impacts on neighbors. Here are some of the local concerns that may arise:

Turbine blades can be up to 100 feet in length. Therefore, moving blades can throw ice great distances. Also, severe weather conditions may cause catastrophic turbine failure and in the event of turbine failure, blades may be thrown great distances. Therefore, turbines should be equipped with automatic and manual emergency shut-offs, grounded to avoid lightning damage. Turbines should have appropriate ground clearance and, because they may be attractive to would-be climbers, they should not be climbable. Turbine doors should be locked and fencing or other measures should be considered to limit access to the site. Certification of safety of structural, electrical and rotor components by a qualified engineer may be required before operations can commence.


A falling tower could cause damage to the same or adjoining property, thus requiring “fall down zones” equal to or greater than the combined length of tower and blades.

A municipality may require tower owners/operators to obtain and maintain general liability insurance.

Regulations may specify tower structure type, such as monopoles.

Shadow flicker can be disorienting to neighbors. DEP is working with a nationally recognized limit of no more 30 hours of shadow flicker per year (assuming the same period of sunlight and shadow flicker occurs each day). Shadow flicker also may be minimized by specifying minimum distances between turbines and dwellings.

Wind access is necessary to the proper operation of a wind tower and turbine, but may be impaired by buildings and structures constructed by adjacent landowners.

There also are concerns about the aesthetics of towers, turbines and blades. Turbines may impair scenic views if improperly located.

Regulations may require towers, turbines and turbine blades to be painted a non-obtrusive, non-reflective color such as white or gray to avoid or mitigate negative visual impacts.

Wind tower projects can generate noise as well as power. Some of this is audible noise, and some is low-frequency noise that is felt as vibrations. Many variables can affect noise impacts on nearby residents; impacts may affect areas for several thousand feet or even several miles.

Regulatory limits might address general audible noise as well as “low frequency” or “infrasound” noise and might set noise limits at the boundary of adjoining properties. Turbine noise may be minimized by specifying minimum distances between turbines and dwellings

Possible solutions include: noise modeling in advance and/or post-construction impact studies; establishing a noise complaint-resolution program; shutdown of turbines or restrictions on maximum turbine speeds during certain times; or, other mitigating measures, if post-construction noise studies show unreasonable adverse impacts.

Municipalities might seek to avoid unreasonable adverse impact on wildlife.

To minimize bird collisions, projects may be sited to avoid nesting, feeding and roosting areas and located away from migratory bat and bird habitat.

Applicants may agree to post-construction impact studies to monitor any negative impacts on wildlife and follow up actions, such as operational changes, to address these negative impacts.

Towers may be abandoned at some time in the future. Municipalities may wish to require turbine removal and site restoration upon facility abandonment, and may require a tower owner/operator to post a performance guaranty (bond, cash escrow or irrevocable letter of credit) to ensure funds for the same.

Local regulation could prohibit the location of signs and lights on towers (except as required by the FAA).

The cost of municipal project review of these projects may be substantial. Therefore, any municipal regulations should include appropriate application fees, as well as the standard engineering/consulting/legal peer review escrows to ensure sufficient funding for adequate expert review of applications.

Finally, a proposed commercial wind power project may raise the same land use issues and concerns as any other commercial or industrial land use, including: vehicular access; buildings and accessory structures; stormwater; solid waste; septic; and, general compliance with municipal zoning and shoreland zoning ordinances.

What regulatory authority does a city or town have to address these commercial wind power project concerns?

Three basic sources of municipal authority in Maine permit local regulation of commercial wind power development: zoning ordinance authority, police power authority and home rule ordinance authority. State law specifically authorizes a municipality to enact zoning ordinances, which allow it to divide the municipality into districts and to prescribe and apply different regulations in each district. Such ordinances must be consistent with the comprehensive plan. In addition, municipalities have the inherent police power authority to regulate activities to protect the public health, safety and welfare. Finally, Maine municipalities enjoy statutory home rule authority to enact ordinances to “exercise any power or function which the Legislature has power to confer upon it, which is not denied either expressly or by clear implication, and exercise any power or function granted to the municipality by the Constitution of Maine, general law, or charter.” The typical municipal “Site Plan Review” ordinance is an example of a common home rule land use ordinance.

How can municipalities address their concerns?

Comprehensive Plan Zoning/Planning Ordinance Enactment or Amendment. A municipality can take the proactive step of locating appropriate areas where commercial wind power projects fit in the community by amending the comprehensive plan, zoning ordinance and zoning map accordingly. It then can enact reasonable regulations in the zoning ordinance to allow commercial wind power project review, either by performance standards to be applied in site plan review or by a separate wind power section. This is a complete approach that would give the municipality the greatest latitude in regulating the location of and standards for such development.

As part of this complete approach, a municipality could amend its comprehensive plan and zoning ordinance to provide for the use as: (1) a permitted use within specific zoning districts; (2) a conditional use or special exception use within certain zoning district(s); or (3) within overlay district(s), which would allow the municipality to designate places in municipality where development of wind projects is deemed appropriate, regardless of existing zoning district boundaries. Because existing zoning ordinance height limits may prohibit all wind power turbines within the municipality; ordinance height restrictions may need to be amended for wind projects.

In addition to addressing the location of wind power projects, a municipality also could amend its zoning ordinance to include performance standards for commercial wind power uses and facilities in order to address specific land use concerns. The ordinance might require these performance standards to be addressed through site-plan review or special exception/conditional use review, or might include these standards as part of a commercial wind power review section.

Also, whether the commercial wind power use is a permitted use, a special exception or conditional use or one allowed only in overlay districts, a municipality can amend its zoning ordinance to require site plan review for wind energy development, to address general development concerns that might apply to any development. These general concerns may be vehicular access, stormwater management, solid waste disposal, septic systems and compliance with general zoning dimensional standards.

Stand-Alone Site Plan Ordinance. Alternatively, a municipality simply can enact a stand-alone site plan ordinance or commercial wind power ordinance to regulate such projects without having to enact a comprehensive plan, zoning ordinance and zoning map. The Maine State Planning Office has prepared a Model Wind Energy Facility Ordinance (available online at http://www.maine.gov/spo/landuse/docs/ModelWindEnergyFacilityOrdinance.doc) that may be enacted on its own or may be integrated into an existing zoning ordinance. However, enactment of a stand-alone wind power ordinance without also enacting a comprehensive plan, zoning ordinance and zoning map means that a commercial wind power project could be located anywhere within the municipality, so long as it meets the standards in the wind power ordinance. Thus, this form of regulation may not provide the desired level of local control over the location of a wind power project.

Moratorium. Finally, in the absence of any land use ordinances to regulate a commercial wind power project, a municipality can enact a temporary moratorium ordinance if it finds that the municipality’s current ordinances are inadequate to protect the public from serious public harm from such development. However, this is only a temporary remedy that allows the municipality time to develop and enact the necessary ordinances, and a moratorium ordinance should not be used to prohibit or indefinitely delay a proposed commercial wind power project.

(This article is based on a presentation made by the author at Androscoggin Valley Council of Government’s Planning Day, Nov. 5, 2009.)