Model As-of Right Zoning Ordinance or Bylaw: Allowing Use of Wind Energy Facilities

Summary

Note: This model ordinance was designed to provide guidance to local governments seeking to develop their own siting rules for wind turbines. While it was developed as part of a cooperative effort involving several state agencies, the model itself has no legal or regulatory authority. 

In 2007, the Massachusetts Department of Energy Resources (DOER) and the Massachusetts Executive Office of Environmental Affairs (EOEA) issued a model ordinance or by-law that may be modified and adopted, as necessary, by local governments that want to promote wind-energy development. In 2009, DOER and EOEA amended the model ordinance to cover both small and large wind developments and to incorporate “as-of-right siting,”* which generally means as long as developments follow the local, state, and federal laws, they are allowed. 

The model applies to all land-based utility-scale and on-site wind facilities. The model “as-of-right” siting must allow for wind energy facilities with at least one turbine of 600 kilowatts (kW) or more. An essential part of “as-of-right” siting is the establishment of designated locations. Once the location(s) is (are) designated within a local jurisdiction, a wind development may proceed without the need for any special permits. A standard building permit and compliance with local zoning bylaws is required.

The state model includes the following provisions:

• Compliance with Laws, Ordinances, and Regulations Construction and operation of proposed wind facilities must be consistent with all applicable local, state, and federal requirements, including but not limited to all applicable safety, construction, environmental, electrical, communications, and aviation requirements.
• Building Permit and Inspection All wind energy systems must first obtain a building permit and work must then commence within 6 months (per state building code laws). Extensions may be requested and granted multiple times.
• Fees The fee required for a building permit.
• Height Wind facilities should not exceed 450 feet above the current grade of the land. (Some exceptions apply.)
• Setbacks Wind turbines must be set back a distance equal to 3 times the height of the turbine from the nearest existing residential or commercial structure, and 1.5 times the height of the turbine from the nearest property line, other public ways, buildings, and critical infrastructure. 
• Color and Finish Shall comply with the Federal Aviation Administration safety requirements.
• Noise The wind-energy facility and associated equipment must conform to the provisions of the Massachusetts Department of Environmental Protection’s noise regulations (310 CMR 7.10).
• Shadow/Flicker Wind facilities must be sited in a way that minimizes shadow and flicker impacts. The applicant has the burden of proof to show that there is not a significant adverse impact.
• Site Plan Review All wind projects must go through a Site Plan Review prior to any construction (or modification). This review is strictly to verify that the project complies with the zoning by-law.

The state model also includes provisions regarding wind-energy facility removal requirements, abandonment, project financial surety, and lighting and signage. The state model lists documents required for the site plan review, including a location map, a site plan, visualizations, landscape plans, operation and maintenance plans, proof of liability insurance, and all relevant compliance documents (such as building permits and approvals).

*As-of-right siting is defined in the model ordinance as "development may proceed without the need for a special permit, variance, amendment, waiver, or other discretionary approval. As-of-right development may be subject to non-discretionary site plan review to determine conformance with local zoning bylaws as well as state and federal law. As-of-right development projects that are consistent with zoning bylaws and with state and federal law cannot be prohibited."