(Feb. 27, 2015) Local homeowner Jim Motsko’s proverbial boulder has just rolled back down the hill in his Sisyphean effort to get a small wind turbine in his yard.
After four and a half years of regulatory ups and downs, Motsko’s final conditional use application before City Council last Thursday was denied by the lack of a quorum, as well as some councilmanic confusion concerning what councilmembers could and could not do in a zoning hearing.
The council cast a three-to-two vote in favor of Motsko’s application, but with two members of the council – Mary Knight and Matt James – absent, the vote did not receive the four-person quorum necessary to take action in a seven-person voting body.
“Needless to say, I wasn’t really happy with it,” Motsko said after the hearing. “It’s been at least four-and-a-half years since I started trying to get this through.”
Motsko’s proposal is for the installation of a wind turbine, roughly 39 feet in height, to be installed in the yard of his bayfront home, which sits just north of Sixth Street. The turbine would provide a considerable amount of electricity, enough to power the Motsko family residence, as well as receive credits from Delmarva Power for putting more energy into the system than Motsko pulls out.
“It’s the right thing to do,” Motsko said. “Renewable sources of energy are the right way to go. I’m not the only person around here who’s thought this – the wind on the water, especially in the winter, is always blowing.”
When he first pitched the idea, however, the city had no regulatory policies covering wind turbines. Eventually, city officials settled on the idea of allowing wind turbines in residential zones as a “conditional use,” meaning that such a use would be permitted as long as it was subjected to review by both the council and the city’s Planning and Zoning Commission, to ensure that it would not have an undue adverse effect on the neighborhood. Such a process is supported by the state’s zoning articles.
Specifically, the city’s clause for turbines required that they not exceed the 60-decibel noise limit, and that land easements be secured around the mounting pole at a distance of at least the pole’s height, to ensure that there would be no damage liability if the turbine were to fall over.
The council, however, balked several times at passing the final ordinance creating the new zoning clause.
“I actually took a break for a couple of years … after the mayor and council came to a tie vote about changing the ordinance, because one of the council members had abstained, I was kind of in limbo and it took me a while to figure out what I wanted to do next,” Motsko said.
Eventually, Motsko moved forward again, only to discover that the Maryland Department of Natural Resources would not give him a formal easement for the turbine’s reach out over the bay.
Motsko then had to lobby the city to change the turbine ordinance, allowing a letter of approval in lieu of an actual easement in cases where government agencies were not permitted to grant marine easements.
Finally, several weeks ago, the Planning and Zoning Commission unanimously approved Motsko’s complete application under the amended ordinance.
At the council hearing, however, recently elected members Wayne Hartman and Tony DeLuca both voiced similar concerns about noise, maintenance and hassle for surrounding property owners.
“It sounds like a lot to maintain and a lot in a residential neighborhood,” DeLuca said. “I don’t support it … often, as I read, they try to control the noise [from the turbine] but it’s a lot for homes and condos.”
“Perception is property values … the integrity of residential neighborhoods is what I support.”
Hartman also raised questions about the impact on future development, noting that growth was happening across the street from Motsko’s property, where the turbine’s blades would be visible to neighbors from behind Motsko’s single-story home.
“We already have a multi-story condo going up right next to it,” Hartman said.
However, simply having doubts about the efficacy of a wind turbine is not grounds to deny a conditional use. As is often the case, the council struggled with keeping its issues within the grounds of the law it had already passed, which permits wind turbines by their very nature and thus means that wind turbines must be suitable applications in at least some residential zones.
In order to issue a denial, there would need to be some prevailing issue not related to the inherent operation of wind turbines, but rather to a specific condition in the neighborhood.
“When you’re sitting up here entertaining an application for conditional use, you’re not sitting in your legislative capacity, you’re in a quasi-judicial capacity,” City Solicitor Guy Ayres reminded the council. “In order to turn down a conditional use, you have to make a determination that this particular use at this particular location is more onerous than it would be in any other similarly zoned property.”
In other words, the council is not legislating the appropriateness of wind turbines, a matter that was decided by a previous council, but rather is adjudicating within the law that was previously made.
“You can’t turn it down because you don’t think [turbines] should be appropriate to begin with,” Ayres said.
Supporters of the application, particularly Mayor Rick Meehan, pointed out that if the city was to determine that turbines were appropriate under certain conditions, which it previously had, then there was more of an argument that Motsko’s property was uniquely better suited to being such a situation as compared to other residential areas.
Motsko’s property has one of the widest bay frontages in town, much larger than the average 50-foot lot, and protrudes away from nearby condos. Additionally, the turbine will only make the most noise when winds are highest, which is also when the noise of the bay waves, as well as surrounding HVAC systems, will be much louder. Motsko is also insulating the pole to reduce noise.
“If you’re not going to grant it, you might as well get rid of the ordinance,” Meehan said. “If you’re not going to allow a windmill at this location, without any other properties around it … let’s not put somebody else through all this if in the end, in fact, the council just doesn’t want to allow windmills.”
Hartman pointed to a sound study that was done on a similar turbine on a rural property in St. Martin’s Neck, where the decibel levels approached the city’s limit.
“I think there’s enough justification to take a meaningful vote,” Hartman said.
However, zoning law stipulates that believing something might happen is different than proving it will happen, which is what the council – not the applicant – has to do to reject an otherwise permitted use.
Ayres noted to city Zoning Administrator R. Blaine Smith that he would now have to file a finding-of-fact indicating the turbine’s unsuitability, as opposed to the preponderance of evidence that it was, in fact, no different than any other turbine.
“Good luck,” Ayres quipped.
If four members of the council were to be in favor at any time, however, the decision could be brought up for reversal.
Alternatively, Motsko could appeal the decision to Maryland Circuit Court, as zoning rules themselves are regulated by the state.
“I’m not sure where we’re going to go with this yet,” Motsko said. “I’m still trying to figure out what my options are.”
