Wendie Holland, 58, a healthcare consultant, was conscious of her rising energy bills and increased environmental impact.[1] In an eco-conscious attempt to reduce her carbon footprint, Ms. Holland’s planned to erect a 132-foot windmill in her backyard of her residential property in Cape Cod, Massachusetts.[2] The wind turbine, designed for residential use, could potentially generate enough energy to power her home.[3] Ms. Holland’s plans, however, quickly began to sputter.[4] Citing safety concerns and adverse impact on neighborhood character, the local planning board twice rejected Ms. Holland’s bid.[5] Undeterred, she appealed to the Cape Cod Superior Court.[6] The Court backed the planning board forcing Ms. Holland to abandon her endeavor.[7]

Ms. Holland is not alone.[8] Many other Americans share her desire to reduce their energy costs and their carbon footprint by erecting small windmills in their backyards.[9] Many of these Americans face the same hurdles as Ms. Holland encountered.  Wind energy harvested via low-cost residential windmills is gaining traction as a viable source of energy.  According to an American Wind Energy Association (AWEA) Small Wind Turbine Global Market Study, the US Market for small wind turbines grew 78% in 2008, with industry experts predicting a 30-fold increase by the end of 2013.[10] Increased residential use was attributable to a growing concern of energy prices and a heightened appreciation for the environmental impact of green energy.[11] Federal and state governments are encouraging the growth of residential renewable energy systems by providing tax incentives.[12] Some states, including California, Nevada, Arizona, Oregon, New York, Massachusetts and Ohio have followed the federal government’s lead offering residential consumers incentives of about $2 per Watt of capacity or greater for small wind energy production.[13]

Yet, “there is a surprising lack of information about what local governments can and should do about the smallest of systems – the backyard wind turbine systems.”[14] Local zoning laws and city ordinances written for a different era have proven themselves as formidable obstacles.[15] The study found that “[p]oor or absent local permitting practices thwart an estimated 1/3 of all potential small wind turbine installations.  Unnecessarily restrictive regulations, particularly height limitations, can limit a turbine’s productivity, discourage customers and investment, and repel local industry related business from communities”[16]

Some states have already taken legislative steps by enacting statewide small wind energy system regulations that preempt local zoning board rules.  For example, on May 4, 2009, the Wisconsin legislature passed a bill requiring its Public Service Commission to “promulgate rules establishing common standards for political subdivisions to regulate the construction and operation of wind energy systems.”[17] The pertinent section provides:

“No political subdivision may place any restriction, either directly or in effect, on the installation or use of a wind energy system that is more restrictive than the rules promulgated by the commission…No political subdivision may place any restriction, either directly or in effect, on the installation or use of…a wind energy system…”[18]

Later that same month, on May 22, Iowa’s Governor, Chet Culver, signed a similar bill to establishes small wind innovation zones that will “optimize local regional, and state benefits from wind energy and to facilitate and expedite the interconnection of small wind energy systems with electric utilities throughout this state.[19]

New Jersey followed suit and on January 16, 2010 passed S2528, a renewable energy law that “provides for the regulation of small wind energy systems” and prohibits municipalities from “unreasonably limit[ing] such installations or unreasonably hinder[ing] the performance of such installations.[20] The statute defines “unreasonable limits” as:

Prohibiting small wind energy systems in all districts within the municipality; Restricting tower height or system height through application of a generic ordinance or regulation on height that does not specifically address allowable tower height or system height of a small wind energy system; Requiring a setback from property boundaries for a tower that is greater than 150 percent of the system height. In a municipality that does not adopt specific setback requirements for small wind energy systems, any small wind energy system shall be set back from the nearest property boundary a distance at least equal to 150 percent of the system height; provided, however, that this requirement may be modified by the zoning board of adjustment upon application in an individual case if the applicant establishes the conditions for a variance under this act; Setting a noise level limit lower than 55 decibels, as measured at the site property line, or not allowing for limit overages during short-term events such as utility outages and severe wind storms; Setting electrical or structural design criteria that exceed applicable State, federal or international building or electrical codes or laws.

Despite the recent legislative success in New Jersey, Iowa and Wisconsin, other states have struggled to pass legislation aimed at combating zoning problems for residential wind systems.  Minnesota, for example, recently passed legislation enabling the state to regulate wind energy systems.[21] However, the Minnesota legislature was forced to strike a balance; the new 2009 legislation allows the state to review applications for wind farms but small wind energy systems (under five megawatts) are still subject to local jurisdiction and review.[22]

Minnesota’s recent attempt to create statewide regulations for wind energy systems is indicative of many of the potential pitfalls legislators across the country will face as they attempt to standardize small wind energy system regulation. In an attempt to strike an appropriate balance, state legislatures should pass legislation that that would authorize homeowners associations to determine their own regulations regarding residential renewable energy systems. Such legislation could be narrowly tailored to allow homeowners association to amend only their bylaws with respect to widely supported carbon reducing technologies such as small wind turbines and residential solar panels.  However, this legislation would primarily impact small wind turbines in residential settings since local zoning rules tend to be much more restrictive of windmills,  compared to those regulating solar panels.

As conventional energy resources become more scarce causing electricity bills to increase, American families are increasingly tapping into alternative energy by investing in a wide-range of technologies that capture wind, heat and sunlight from their own residential properties.  The wind energy market is poised for rapid growth in the coming decades.  Systems that capture wind’s kinetic energy and convert it into usable electric energy have become affordable for homeowners to purchase and are increasingly efficient.  Yet significant barriers in the form of antiquated zoning rules threaten to head off any hope of widespread use of these systems.

States reluctant to pass far-reaching legislation homogenizing small wind energy system regulations have another option in their legislative arsenal; the use of homeowners associations as a vehicle for change. They can take the intermediary step by allowing homeowners associations to act as the intermediary between state legislatures and township zoning boards by allowing associations to amend their bylaws to permit them to determine the rules governing the placement, installation, specification, etc. of small residential wind turbine systems as opposed to the local zoning board.

-Drew Cohen, Senior Notes Editor

For more from Drew Cohen, check out his article in the ABA’s Energy and Environmental Business Law Reporter:

The Outer Continental Shelf Lands Act Revisited: The Status of the Hornbeck Case and Recent Legislation