William J. Seitz and Kevon Martis: Trespass zoning is wind energy’s secret subsidy

By William J. Seitz and Kevon Martis - Contributing Columnists

There was a time when the environmental movement opposed noise pollution, fought industrial blight, and supported “little guys” whose quality of life was threatened by “corporate greed.”

But that was a long time ago, before wind energy.

The American Wind Energy Association and its allies at the Sierra Club and the Ohio Environmental Council continue to press the Ohio legislature to overturn recent wind energy siting guidelines that corrected a grievous fault in the earlier state guidelines.

The old regulations measured turbine setback distances and noise limits from the 500 foot to 600 foot tall wind turbines from the foundation or bedroom windows of neighboring homes. The new regulations established by the legislature measure setback distance and noise limits from neighboring property lines. Establishing siting regulations from property lines is standard practice for all other land use regulations. After all, homeowners are not confined to their homes. They and their kids like to play in the yard, enjoy outdoor picnics, or watch sunsets from patios and decks.

By measuring noise and setbacks for wind turbines from neighboring homes rather than property lines, the old law essentially awarded wind developers an uncompensated nuisance noise and safety easement across private property even though that neighboring parcel was not leased to the wind developer.

In effect, future development rights on thousands of acres of private property were stripped from Ohio’s rural citizens and handed to their neighbor’s tenant: the wind developer.

The basic premise of zoning is to separate conflicting uses of land. If safety setbacks and noise emissions are measured at a home rather than a property line, there is in fact NO separation of the conflicting use.

The definition of trespassing is “to enter the owner’s land or property without permission”.

By establishing the setback and noise limit criteria from neighboring homes rather than from property lines, Ohio’s former wind turbine siting guidelines had effectively legalized trespassing in our rural communities. It essentially established trespass zoning.

The legislature simply moved the setback distances to the property lines, thus replacing trespass zoning with property rights zoning. The legislature did not change the setback distance itself which remains at 1,125 feet—a distance that is consistent with the wind turbine manufacturers’ own safety manuals. The only change was to restore property rights zoning by eliminating trespass zoning.

Since 2008 when Ohio’s wind mandate was adopted, one thing has become clear: wind development brings controversy and sharply divides residents in our rural communities.

People opposing wind development are often crudely caricatured by wind developers and wind lease holders as NIMBYs-Not In My Back Yard. In truth these are landowners who simply recognize that the trespass zoning demanded by wind developers like the U.K.’s EverPower and Spain’s Iberdrola-is a de facto subsidy extracted from the neighbors without any compensation.

Where the wind developer can use these unleased properties for nuisance noise and safety easements free of charge, they have no reason to approach the neighboring residents to negotiate a fair price for their loss of amenity. Trespass zoning has deprived wind plant neighbors of all economic bargaining power. Trespass zoning has donated their private property to the neighboring landowner’s wind developer tenant.

By replacing trespass zoning with property rights zoning as the Legislature did in 2014 in House Bill 483, the wind developer can no longer ignore the private property rights of rural Ohioans.

The environmental lobby regularly demands that “fossil fuel” utilities be held accountable for the “externalities” of their conventional coal- and gas-fired power generation. By moving turbine setbacks to the property lines the Ohio Legislature has simply held wind electric generators accountable for the externalities of wind development: noise pollution, turbine rotor failure and its attendant debris field, property value loss and visual blight.

Good neighbors don’t trespass. If Big Wind wants to be a good neighbor in rural Ohio, it needs to abandon its demand for trespass zoning.

By William J. Seitz and Kevon Martis

Contributing Columnists

William J. Seitz is a state senator. Kevon Martis is executive director of the Interstate Informed Citizens Coalition.

William J. Seitz is a state senator. Kevon Martis is executive director of the Interstate Informed Citizens Coalition.

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