Steps of the complicated process laid out in this article
The future of wind turbines in Henderson County hinges on the contents of an ordinance that has yet to be written or approved, and a piece of local legislation that would be first of its kind in the commonwealth.
“We would be writing the first wind turbine ordinance in the entire state of Kentucky,” said Brian Bishop, the executive director of the Henderson-Henderson County Joint Planning Commission.
Bishop said there are regulations regarding smokestacks and cell towers, but nothing to cover large-scale wind turbine projects like what is being proposed in Henderson County.
Locally, writing a wind turbine ordinance is the first step in the local government’s process that may or may not ultimately allow wind turbines to locate in the county.
A recent study conducted by the Federal Aviation Administration shows a proposal to place 93 wind turbines across a wide area in eastern Henderson County. The plan comes from Cordelio Power, which has a local representative agency, Rock Bluff Energy, working on securing leases with landowners and the Penn-Virginia coal company, which owns some 13,000 acres of reclaimed mine land in the eastern part of the county.
Cordelio has said that the 93 wind turbine locations in the FAA study are a representation of every place that a wind turbine could be placed, which is needed so that the study takes into account all the possibilities affecting air travel in the county. The company said it does not intend to build 93 wind turbines, but hopes for between 50 and 70.
Since the study was first made public in a Hendersonian article, scores of residents have expressed outrage and have said on social media that bringing wind turbines to the county is a done deal. Many comments have also said that residents didn’t get a chance to make public comments regarding the turbines.
According to Bishop, though, no wind turbine can be built without the county first having a wind turbine ordinance in place. He said residents will have several chances to make their voice heard during the local governmental process to create that ordinance.
The drafting and then approval or disapproval of the ordinance will occur in multiple steps in both the realms of the planning commission and the Henderson County Fiscal Court. Officials have said that the ordinance may end up being so restrictive that Cordelio won’t want to build turbines here. Judge-Executive Brad Schneider said in a previous article that there’s the possibility of “whether we want to permit them at all.” As of yet, there has been no determination about the ordinance’s contents as local officials continue to study the issue.
Schneider has also said that he would like for a draft to be complete before the end of the year.
Here are the steps of the entire process:
1. The first step in the local process is to draft a wind turbine ordinance. Bishop said there is no requirement to hold public meetings at this point of the process. He did say, however, that the planning commission can call for a public hearing if it chooses so that it can take public comments that would help the writers put together the document. This has been done in the past when local officials were putting together a study concerning the U.S. 41-Strip and compiling the Comprehensive Plan, he said.
Schneider said the fiscal court will probably request that the planning commission staff draft an ordinance, which would then be passed to the court for review. He said he and magistrates could work together to make tweaks to an ordinance before it is ready for a vote.
Magistrate Taylor Tompkins agreed that magistrates will be able to review the draft and make suggestions before voting on it. He also said he’d like to be a part of writing the draft but that has not yet been determined.
2. The wind turbine ordinance would need to be “originated” in Henderson County Fiscal Court, Bishop said. The ordinance will be passed or not passed by the fiscal court, and if passed, county government has enforcement ability, Bishop said. “It is their ordinance,” he said. The planning commission has no enforcement ability, said Bishop. Even though an ordinance can legally originate at the planning commission, it’s the planning commission’s current policy for an ordinance or zoning text amendment to originate at the fiscal court or the Henderson City Commission.
3. Once an ordinance originates in the fiscal court, it will be sent to the planning commission, which will hold a public hearing on the ordinance, Bishop said.
The planning commission is “legally required to hold a public hearing,” he said. Depending on the number of people who want to speak on a particular topic, the planning commission typically cuts off public hearings at 9 p.m. (after a 6 p.m. meeting start time). If there are people who signed up to speak who didn’t get a chance to speak, the planning commission continues the public comment the next day. The planning commission’s agreed upon policy is to continue until everybody who wants to speak has been given a chance.
Typically, David Dixon, the planning commission’s chair, asks people not to repeat the same points as previous speakers. But Dixon never tells people they can’t speak. He will often come back—after all have spoken—and ask if anyone wants to speak again, Bishop said.
4. After the public hearing is held, the planning commission will vote on a recommendation regarding the ordinance that will be sent to the fiscal court. For instance, the planning commission may pass a recommendation for the fiscal court to approve or not approve the ordinance, or that the fiscal court approve the ordinance with specific changes made to it.
It’s important to note that the recommendation is just that—a recommendation. Most of the time, the planning commission’s recommendation is followed when the governmental body votes on the ordinance or text amendment. But neither the fiscal court nor city commission is required by law to vote in line with the planning commission’s recommendation.
5. Once the planning commission makes its recommendation, it will send it and copies of the transcribed public comments to the fiscal court. Magistrates and the judge-executive will have time to review the public comments and documents related to the ordinance before a first reading is put on the agenda of a fiscal court meeting.
6. During the meeting in which the fiscal court hears the first reading and makes its first vote, residents may again be given a chance to make public comments. “May” is the key word at this point. Depending on the amount of comments a governmental body already has in its possession, it may allow for more public comments before its first reading.
7. The second reading would most likely occur at the next meeting. Again, it’s the fiscal court’s discretion to hear public comments again before the final vote, Bishop said.
The final vote after second reading determines if the wind turbine ordinance is dead, or at that point, if the company may begin the process of locating individual wind turbines on individual property owners’ land and the thousands of acres of reclaimed mine land owned by Penn-Virginia. Cordelio officials say they’ve secured agreements with both landowners and Penn-Virginia.
The contents of the ordinance shape the remaining steps of the process. There are many facets of an ordinance that writers will need to consider, according to Bishop. Some of those include if a wind turbine will be a permitted use on parcels already zoned as agricultural or surface mining, as is most of the land in question. Or, the ordinance could be written to where a wind turbine is allowed as a conditional use on agricultural or surface mining, Bishop said. Some examples of conditions that a wind turbine project would need to add include use of vegetative screening, setbacks and distance from fence lines, Bishop said.
With either a permitted use in a zone or a conditional use in a zone, the ordinance would contain limitations on sound and height, and some language concerning shadow flicker, Bishop said.
But there’s another wrinkle to all this.
As executive director of the planning commission, Bishop said he’s going to recommend in the draft of the ordinance to include a provision that each parcel of land on which a wind turbine is proposed be subdivided from the parcel where it currently sits and then go through the rezoning process. He said the appropriate zoning for a wind turbine is light industrial or industrial.
If that designation were to be written into the ordinance, that would mean 50-70 individual subdivisions and rezonings. The subdivisions can be conducted in-house with planning commission staff, including Bishop and Jennifer Marks, the planning commission’s assistant director. But a rezoning requires a public hearing in front of the planning commission, which would then vote on a recommendation to send to the fiscal court. The fiscal court votes on final approval or disapproval.
Once a tract has been subdivided and rezoned, an engineering site plan would need to be submitted to the planning commission for approval. The engineering site plan would include information about the workings of the turbine, such as flicker and noise data.
Theoretically, an engineering site plan could be denied by the planning commission even if the fiscal court has already approved the rezoning of that tract of land for the purpose of erecting a wind turbine, Bishop said.
There’s also another provision in county zoning ordinances regarding conditional uses that could allow for public comment. If the approved ordinance states that it is acceptable to erect wind turbines on land zoned agricultural or surface mining—which appears to be the zoning for most of the proposed locations in the FAA study—but in addition requires the company to be granted a conditional use permit, the county’s board of zoning adjustments would hold a public hearing and then vote if the company is granted the conditional use permit.
Cordelio also has a lot of state and federal red tape
Cordelio officials in a Friday interview said the company has numerous permits and agency reviews on both the state and federal level before it could pursue building the wind turbines in the county.
Tim Vought, the vice president of development for Cordelio Power, said the company is still gathering information and data that will allow it to speak to residents more knowledgeably about the specifics of the project.
The company will need to provide information for a wetlands, bodies of waters and streams study that will be conducted by the Army Corps of Engineers, Vought said.
The company will also need to go through regulatory processes associated with the Kentucky Electric Generation and Transmission Siting Board, Vought said.
Vought said the FAA has determined that Cordelio’s plans would not interfere with aircraft activity in the county, which was the point of the initial study and public comment taken by the FAA. The FAA’s website also shows that the wind turbines in question have been determined to be “No Hazard.”
There will also be regulation regarding the U.S. Fish and Wildlife Service as well as cultural and historic surveys to determine if artifacts are present in affected areas, Vought said.
Vought said Cordelio will begin to hold public meetings when enough information from the studies has been gathered to give residents detailed answers, such as regarding locations and height, that they want. Without that information currently, he said holding meetings would not allow residents to get the information they need. He said public meetings hosted by Cordelio will occur in about a year’s time.
