The Albemarle County Planning Commission held a public hearing, work session and meeting on Tuesday, October 6, 2009, at 6:00 p.m., at the County Office Building, Lane Auditorium, Second Floor, 401 McIntire Road, Charlottesville, Virginia.
Members attending were Marcia Joseph, Don Franco, Calvin Morris, Bill Edgerton, Linda Porterfield, Thomas Loach, Vice Chairman and Eric Strucko, Chairman. Julia Monteith, AICP, non-voting representative for the University of Virginia was absent.
Other officials present were Wayne Cilimberg, Director of Planning; Elaine Echols, Principal Planner; Mark Graham, Director of Community Development; Scott Clark, Senior Planner; David Benish, Chief of Planning; Bill Fritz, Director of Current Development; Francis McCall, Planner; Amelia McCulley, Director of Zoning/Zoning Administrator and Greg Kamptner, Deputy County Attorney.
Call to Order and Establish Quorum:
Mr. Strucko called the regular meeting to order at 6:00 p.m. and established a quorum.
ZTA-2009-00001 Wind Turbines
Adopt Resolution of Intent and
review ordinance proposal prior to drafting an ordinance amendment for public
hearing (Mark Graham)
Mr. Graham presented a PowerPoint presentation and summarized the executive summary. (See Executive Summary)
The purpose of this report is for the Planning Commission to adopt a Resolution of Intent and to review the current ordinance proposal prior to a Planning Commission public hearing scheduled for November 17, 2009.
On May 6, 2009, the Board of Supervisors (Board) and Planning Commission held a joint work session to consider an ordinance proposal and provide direction on how to proceed. Staff was directed to draft an ordinance amendment, working in cooperation with Mr. Slutzky, Mr. Edgerton, and Ms. Joseph and to maintain the previously approved Community Development work program in scheduling this effort. Staff gratefully notes its appreciation for the help provided by Ms. Joseph, Mr. Edgerton, and Mr. Slutzky in preparing an ordinance proposal.
Based on the direction at the joint work session and subsequent guidance by the representatives of the Planning Commission and Board, staff has revised the previous April 2009 proposal. The revised October 2009 proposal is Attachment A.
Among the changes with this proposal are:
1. Advise staff of any additional changes the Planning Commission wishes to see with an ordinance presented for public hearing.
2. Adopt the Resolution of Intent provided in Attachment B
Wind Turbine Outline
October 7, 2009 Proposal
Small Wind Turbine - A wind energy conversion system used for the generation of power to support an allowed activity on the property. This includes all components of the system such as the tower, guy wires, wiring, rotors and turbine blades, generators, and control systems. The small wind turbine may be connected to a public utility and sell power to that utility provided the power sold is not in excess of that typically used for the primary use on that property.
This definition effectively restricts small wind turbines to an accessory use of the property. For those turbines that are an accessory to a single family residence or agricultural use, no site plan is required per 18-32.2 of the Zoning Ordinance. For other uses (e.g. power for a commercial greenhouse), there would still be a site plan requirement to satisfy before a building permit for the small wind turbine could be issued.
A small wind turbine located on property within any zoning district except within a County recognized Historic District or within the Mountain Contour List as defined in the County’s Comprehensive Plan.
A Tier I system would be considered a “by right” use, subject to the conditions in the Supplementary Regulations of the Zoning Ordinance but administratively handled with minimal cost to applicants. These facilities are anticipated to result in very little or no impact to the community and would have minimal costs associated with County requirements.
A small wind turbine that does not qualify as a Tier I, requiring the Planning Commission to waive Supplemental Conditions for the use. This would include situations such as a system within a County recognized Historic District, reduced setbacks, or height above that allowed for buildings in that zoning district.
This would require the Planning Commission waiving a condition of the Supplemental Regulations. The administrative cost for such a system would be considerably higher than a Tier I.
Supplemental Regulations for Small Wind Turbines
Within Section 5 of the Zoning Ordinance (Supplementary Regulations), establish conditions for wind turbines. As a Supplementary Regulation, the Planning Commission may waive or modify these conditions, for a Tier II facility. This provides the simplest oversight for situations where project specific conditions may require special consideration. The following are the recommended conditions:
1. Small wind turbines are an allowed use within any zoning district, except within County recognized Historic District or the Mountain Overlay District.
This makes wind turbines a “by right” use within any zoning district and allows the Planning Commission to decide if the use is appropriately sited in the overlay district where the potential for conflict is higher.
2. Require a minimum setback from property lines of the height of the structure, plus twenty feet. It is recommended this include a provision for an administrative waiver where the applicant has demonstrated to the satisfaction of the Agent and County Attorney that the adjoining property owner has agreed to restrict development within that part of their property that would be within this setback distance.
This allows a margin of safety for structure collapse and ice throws from turbines.
3. Prohibit collocation of personal wireless service antenna.
This avoids situations where wind turbines might be constructed to circumvent wireless facility ordinance requirements rather than being primarily intended for generation of wind energy.
4. Prohibit all lighting of the wind turbine and tower.
This restriction recognizes the dark skies provisions in the Comprehensive Plan.
5. Prohibit wind turbines within the Entrance within the Mountain Contour List as defined by the Comprehensive Plan. This assures oversight by the Planning Commission for visual impacts within the Entrance Corridors and mountains. Within the EC, the Planning Commission may also request input from the Architectural Review Board before considering a request.
Under the Supplemental Conditions for small wind turbines, add a provision for small wind turbines to meet the height limits within the underlying zoning district. Thus, the Planning Commission could modify this requirement.
Unlike previous proposals, this eliminates the need for a Special Use Permit, which greatly reduces the administrative burden for the County and the cost to the applicant while still assuring there is a process where exceptions are vetted in public.
A building permit is required prior to the County permitting construction of a small wind turbine. A site plan may be required before a building permit application is submitted per 18-32.2 of the Zoning Ordinance for those uses that are not exempted from the site plan requirements. . The following information must be provided with the building permit application.
1. A plat of the property that clearly shows the boundary lines, location of the proposed small wind turbine, and setbacks to the property line.
2. Plans that clearly show the total height of the proposed structure and satisfy all provisions of the Building Code.
3. A signed and notarized affidavit using a County form that demonstrates the small wind turbine will be used to support an allowed use of the property and assures the small wind turbine shall be removed if the supported use is ended.
Tier I -
A Tier I small wind turbine is a “by right” use and will typically only require a building permit.
Recognizing administrative costs can be a significant deterrent to use of small wind turbines, this provision attempts to keep that cost to a minimum.
Tier II -
A Tier II small wind turbine shall require Planning Commission approval of a waiver or modification of the conditions in the Supplemental Regulations prior to approval of a building permit or site plan. As part of approving a waiver or modification, the Planning Commission may establish reasonable conditions to assure the ordinance intent is maintained. If the commission denies an application, it shall identify which requirements were not satisfied and inform the applicant what needs to be done to satisfy each requirement.
Recognizing site specific considerations may suggest a small wind turbine should be allowed, the Planning Commission can waive or modify the requirements as related to setbacks, zoning districts and overlay districts, collocation of antenna, lighting, and height. Depending on the submission requirements, the cost of this application may be a significant deterrent to applicants constructing small wind turbines.
Mr. Graham noted that this is a follow up from the joint work session of the Planning Commission and Board of Supervisors held earlier this year. Staff has been working with Ms. Joseph, Mr. Edgerton and Mr. Slutzky on this since then. The purpose of this review is for the Planning Commission to adopt a Resolution of Intent and to review the current ordinance proposal prior to a Planning Commission public hearing scheduled for November 17, 2009. Staff has had one question since the staff report on whether an appeal could be made on one of these modification requests. The answer is yes it could be appealed by the applicant to the Board if the modification is denied by the Planning Commission.
Staff recommends approval of the resolution of intent noting that they plan to bring this back to the Planning Commission for a public hearing on November 17. If there is any other changes the Commission would like to see with this advertised ordinance staff will try to incorporate those as well.
Mr. Strucko invited questions for staff.
Mr. Edgerton asked on page 3 in the definition of small wind turbine if the last part of the first paragraph, “Provided that the power sold is not in excess of the typically used for the primary use of that property” was necessary. The current net metering system regulation coming down from the State actually says that. He was hoping that at some future date when Dominion Power is more inclined to be going towards renewable energy that regulation will be adjusted to allow and encourage private property owners to generate as much power as they can into the grid. Right now it is kind of a protection. So they have a regulation right now that will keep it that way regardless of whether it is a solar system or a wind system. He was wondering if they want to add that extra language in an ordinance because if the regulations in Richmond change then they would have to come back and adjust this later. He asked if there was some legal reason that has to be in there.
Mr. Kamptner replied no that there was none that he was aware of. He thought that the reason for this language is to assure that the scale of the wind turbine was appropriate to the primary use. They can probably develop some other language that will accomplish the same thing. That is to just assure that the scale is consistent, but to provide the flexibility that he was referring to.
Mr. Edgerton said if it was to try to keep the scale he felt the high limitation is going to do a rather dramatic job of doing that anyhow it being limited to the current height regulations in the underlying zoning district. But if they can leave that language out and achieve what they are trying to do somewhere else he would prefer to do it that way because this is so specific. Then they go back and look at last year’s electric bill and limit them to what that is. Right now the explanation he has been given on the limitation is that it is a protection for the power company, which happens to be Dominion Power in Albemarle, but the power company under law has to credit the individual for electricity that is being generated into the grid from a renewable source. He thought that this clause in the current legislation protects them from having to credit the land owner with more than what had been done before. So it is a protection clause. He was hoping that this changes. There are a number of people working on changing this legislation in the General Assembly. But if they can leave it out of our ordinance and achieve the scale or issue that everybody is worried about some other way he felt it would be a healthier way to go about it.
Mr. Graham replied that Mr. Kamptner had it right. The intent was just to assure that this was not turning into a small commercial wind farm with someone putting up 30 or 40 for the purposes of making money by selling electricity.
Ms. Porterfield asked if there was a limitation on how many wind turbines can be placed on a piece of property.
Mr. Graham replied not as proposed. That was the important part of limiting the power that could be sold to no more than the use of that property. That was the intent so that it remains accessory to that use on the property.
Ms. Porterfield asked if it would be possible that somebody would not want to sell the power but would put more on their property.
Mr. Graham replied absolutely. One of the things that they were trying to recognize is that the state of the art is changing so quickly and for example one of the things that is happening is people are putting many turbines along the edges of certain buildings. They may be a foot in diameter and may have 30 or 40 wind turbines setting on the parapet of the building and that is what generates their power. The question is raised in how they regulate the number and still not impact the state of the art as it is moving forward here.
Mr. Morris noted that many of those he just described are not propeller driven.
Mr. Graham agreed because there are egg beaters and all sorts of different shapes and sizes.
Ms. Porterfield pointed out that wind turbines would be allowed in the Entrance Corridor without any review.
Mr. Graham agreed that was the way it was being proposed right now. As proposed right now the wind turbines would have to meet the setback requirement as discussed.
Ms. Porterfield questioned wind turbines in the Entrance Corridor not having to meet other regulations.
Ms. Joseph noted that cell towers on commercial buildings and multi-family residence in the Entrance Corridor required review by the Architectural Review Board.
Mr. Graham summarized the concerns as follows:
· Leave the proposal for the EC District the way staff has presented it and PC can discuss it after receiving public input at the public hearing;
· Need to have a provision for removal of derelict or abandoned wind turbines;
· Regarding Tier II, staff needs to provide for a notification of adjacent property owners on modifications or waivers; and
· Regarding ridgelines, as alluded to by Mr. Kamptner, staff will need to more clearly define what those areas are.
Mr. Franco noted that he did not hear Mr. Edgerton’s proposed modification in the list to relook at the language.
Mr. Edgerton agreed and noted that it was in regards to the scale issue and taking out the limitation on how much is being produced. He asked that this be encouraged. In discussion with Ms. Joseph they felt the fair way to do this would be to model it after the cell tower ordinance. But that is such an onerous thing that it could only happen with a huge commercial investment, which a private land owner that wanted to stipulate more use of renewal energy would not be able to afford to participate. That would in fact kill it. That is why they are where we are. He thought that the conversation going around amongst the Commission and the concerns expressed are certainly valid and he thought that they ought to be vetted in a public hearing. They need to hear if there are other concerns.
Ms. Porterfield suggested that additional thought be given to regulations for wind turbines in the Entrance Corridor.
Motion: Mr. Edgerton moved and Mr. Franco seconded for adoption of the resolution of intent for ZTA-2009-00001 Wind Turbines.
The motion passed by a vote of 7:0.
Mr. Strucko said that the resolution of intent for ZTA-2009-00001 Wind Turbines has passed. Staff would proceed to set the public hearing and incorporating the Commission’s and public’s comments and suggestions to the draft.
RESOLUTION OF INTENT
WHEREAS, wind turbines have been determined to not be accessory to primary commercial, industrial and residential uses in Albemarle County because, historically, they have not been customarily incidental to those primary uses; and
WHEREAS, the County of Albemarle desires to promote renewable energy sources such as wind turbines; and
WHEREAS, it is desired to amend the Albemarle County Zoning Ordinance to permit wind turbines that provide energy for the primary use or uses to which they are accessory in various zoning districts under appropriate regulations.
NOW, THEREFORE, BE IT RESOLVED THAT for purposes of public necessity, convenience, general welfare and good zoning practices, the Planning Commission hereby adopts a resolution of intent to add to and amend the appropriate sections of the Albemarle County Zoning Ordinance to achieve the purposes described herein; and
BE IT FURTHER RESOLVED THAT the Planning Commission shall hold a public hearing on the zoning text amendment proposed by this resolution of intent, and make its recommendation to the Board of Supervisors, at the earliest possible date.
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