Late last week, an administrative law judge (“ALJ”) found that the Minnesota Public Utilities Commission (the “Commission”) is not obligated to consider or apply a county wind ordinance containing siting standards that are stricter than the Commission’s statewide standards. And even if the Commission were obligated to consider and apply the more stringent standards, the ALJ recommended that the Commission be excused from doing so for lack of good cause under the Minnesota Wind Siting Act (the “Act”). The ALJ’s recommendations to the Commission were released at the same time Minnesota legislators are considering a proposed state law that would require larger setbacks for wind turbines from neighboring property lines statewide.
In October 2010, Goodhue County amended its zoning ordinance for wind projects to, among other things, require turbines to be setback 10 rotor diameters (or about half a mile) from dwellings of landowners not participating in the project. In comparison, the project developers proposed setbacks of 1,500 feet from non-participating dwellings and the Minnesota Office of Energy Security recommended this setback distance as a permit condition. State standards typically require setbacks of 750 to 1,500 feet to comply with noise standards. Two weeks after Goodhue County adopted its wind ordinance, the Commission determined that it did not have a sufficient record before it to determine how or whether to apply the county’s standards. To develop that record, the matter was referred to an ALJ at the Office of Administrative Hearings for a contested case proceeding.
The Act provides that a state site permit for a wind project 5 MW or larger is the only site approval required. The state permit supersedes and preempts all local zoning, building, or land use rules, regulations, or ordinances. Local governments retain authority to regulate siting and construction of wind projects 5 MW and smaller. The Act allows counties to assume responsibility for permitting wind projects 5 MW and larger up to 25 MW using general permit standards developed by the Commission. However, the Act includes a provision that allows counties to adopt more stringent standards for wind energy projects 5 MW and larger, which the Commission must consider and apply before granting a site permit in that county unless the Commission finds good cause not to do so. The ALJ found that the Act does not require the Commission to consider or apply Goodhue County’s ordinance and that, even if it did, there would not be good cause to do so. The case now moves back to the Commission for a final decision.
Recent attention to wind siting standards in Minnesota hasn’t been limited to the Goodhue County case. Yesterday, the Minnesota Senate Energy, Utilities and Telecommunications Committee heard wind siting/setback legislation (S.F. 1069) that would require wind turbines to be set back one-half mile or more from property lines of non-participating landowners in townships exceeding certain population densities. The House companion bill (H.F. 811) was heard last week and failed to pass out of committee on a tied vote. The setback requirements proposed in these bills could significantly reduce the amount of land area available for wind development in Minnesota.