Credit: Tom Hart / Creative Commons

An Ohio Republican’s bill would relax one of the nation’s strictest wind farm setback laws, but a proposed rule change could make getting variances next to impossible.

Ohio’s four-year-old setback law calls for wind turbines on commercial wind farms to be about 1,300 feet from the closest property line. The provision was adopted as a last-minute amendment to a 2014 budget bill. Since then, not a single land-based wind farm has been approved in Ohio.

“Without setback reform, projects are not going to move forward,” said Andrew Gohn, a policy advocate and attorney with the American Wind Energy Association, a national trade group that represents the industry.

A bill from Ohio Sen. Matt Dolan (R-Chagrin Falls) would ease property line setbacks to 120 percent of a turbine’s height. For a 500-foot tall turbine, including blade height, that would be 600 feet. A turbine would also have to be at least 1,225 feet from the nearest habitable residential structure on adjacent property.

Those requirements are stricter than the previous property line in 2014, which had been 110 percent of a turbine’s height. Senate Bill 238 also has new language to make sure potentially affected landowners get notice about proposed projects.

“This legislation finds the right balance between protecting the rights of both participating and non-participating landowners and will enable responsible wind development to move forward,” Dolan said last month when the Energy and Natural Resources Committee took up the bill.

A bipartisan group of 13 co-sponsors have signed on, out of a total of 33 Ohio state senators. If the bill passes, it would go to the House of Representatives, where passage could present challenges. Rep. Bill Seitz, a Cincinnati Republican who as a senator introduced the 2014 setback amendment, has said any setback bill needs to be considered alongside another bill, HB 114, which would effectively make the state’s renewable energy standards voluntary.

Seitz, the House Floor Majority Leader, helped kill an effort last year to change the setback rules. After an amendment was added to a budget bill, Seitz complained that such a provision “had no place in a budget bill.” A stand-alone bill was later introduced but stalled after its author, Sen. Cliff Hite, resigned abruptly and apologized for comments to a female state employee that were “not appropriate for a married man.”

Meanwhile, the Ohio Power Siting Board has proposed a change to the rules for getting a variance from the property line setbacks. The one-word change would require a wind farm developer to get a waiver from the owners of all property adjacent to any wind farm property.

“The addition of the word ‘all’ could be interpreted to put a requirement on developers to obtain waiver of the minimum setback distance from each and every owner of property adjacent to the property on which the turbine will be sited, even where those adjacent property lines meet and/or exceed the minimum setback distance,” Ohio Environmental Council attorney Miranda Leppla wrote in comments on the rule. That reading “defies common sense and infringes upon the property rights of the individual who agrees to waive the minimum setback distance for their property.”

That appears to be what Seitz and wind farm opponents want.

Seitz said the Board’s chair and the head of the legislature’s committee for rules review “reached out to me for comment” on an earlier version of the rule, and he conveyed his opposition. “The newly proposed rule is an improvement over the prior one, in that it clarifies that all property owners adjacent to the wind farm property must concur in any waiver of the setback,” he said.

But, Seitz added, “the rules still do not define what comprises the wind farm property.” He referred to comments filed on behalf of an anti-wind group by Columbus attorney Sam Randazzo. Randazzo is also chief counsel and a lobbyist for Industrial Energy Users-Ohio, an organization of mostly large manufacturers that has opposed the state’s renewable energy and energy efficiency standards.

Those comments on behalf of Greenwich Neighbors United suggest defining the wind farm property as the entire “project area.” That interpretation could potentially include hundreds of parcels spread over large areas.  Among other things, Randazzo also objected that any “minimum setback evasion” cannot take place without a procedure specified by the Board in rules.

Gohn, of the wind energy association, said the proposed rule changes are “fundamentally unfair” and potentially unconstitutional.

“In America, where we value private property rights, we do not place zoning authority in the hands of random strangers.” Legal authority cited in comments filed by the American Wind Energy Association and other industry interests include a 90 year-old decision by the U.S. Supreme Court.

For now, no new wind farm applications have been approved for land projects since the 2014 law changes. And project developers who submitted one application earlier this month have said the project will only move forward if Ohio adopts setback reform.

Yet the proposed rule change could keep wind farms from moving forward even if the overall setback requirements were eased.

“These are sort of cumulative obstacles,” Gohn said.

Dolan’s bill will require additional hearings by the Energy and Natural Resources Committee before any vote by the Ohio Senate.  Meanwhile, a decision on the proposed variance rule change rests in the hands of the Ohio Power Siting Board.

Correction: One wind farm application has been submitted in Ohio since the state adopted its 2014 setback rules. A previous version of this story misstated the number.

Kathi is the author of 25 books and more than 600 articles, and writes often on science and policy issues. In addition to her journalism career, Kathi is an alumna of Harvard Law School and has spent 15 years practicing law. She is a member of the Society of Environmental Journalists and the National Association of Science Writers. Kathi covers the state of Ohio.