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Planning commission delays action on proposed wind regulations after 8-hour meeting

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Planning commissioners asked many questions but opted not to take any final action on proposed wind regulations at 2:37 a.m. Tuesday after hearing from 80 people and one peregrine falcon.

The Lawrence-Douglas County Planning Commission in January 2022 asked city staff members to review existing regulations for wind energy systems, particularly commercial ones, to better align them with recently adopted solar regulations. City staff members produced a draft of new regulations in January 2023. The planning commission voted in March to form an ad hoc committee to help revise that into a second draft. Get a look at the draft and how it compares to the initial draft at this link.

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Meetings on wind regulations have been long, tense and emotional for many members of the public who have spoken during them. A vast crowd spilled out of the Lawrence City Commission meeting room Monday evening.

Gary Rexroad, chair of the planning commission, on Monday asked people to keep their comments to the proposed regulations because the commission was not there to consider policy or bans on wind energy. Some did.

Lawrence and Douglas County community members fill the Lawrence City Commission meeting room and beyond, Oct. 23, 2023 during a Planning Commission meeting about wind regulations. (Screenshot / City of Lawrence YouTube)

About two-thirds of the 80 speakers spoke against wind energy, about one-quarter spoke in favor of it and a handful were unclear or expressed mixed opinions.

Community members raised a litany of concerns about wind turbines in general. Several raised concerns about noise and its potential effects, particularly on neurodivergent people and people on the autism spectrum. Some were concerned about fires, ice throws from wind turbine blades, shadow flicker and more.

Some comments were more specific to the regulations. Some said the draft’s proposed setbacks — or required distances between windmills and other structures or property lines — were not enough and proposed bigger numbers, 2,500 feet to a mile or more.

One person brought a feathered friend: a peregrine falcon.

“The industry is constantly evolving, and there are new innovative ways of protecting migratory birds and lots of different ways being trialed right now, and I believe the language in the proposed regulation is too vague when it comes to ensuring the newest and best technologies adapted in our county,” Christopher Ly, a federally licensed falconer, told commissioners. “This body of commissioners needs to ensure that we have the power to force implementation of future innovations.”

Christopher Ly holds a peregrine falcon as he speaks to the planning commission, Oct. 23, 2023.

On the other side of the issue, community members and some representatives of the wind energy industry spoke in favor of green renewable energy, warning of the dangers of climate change. Some said that the health concerns opponents were concerned about paled in comparison to the health ramifications of coal-fired power plants.

Some of those in favor of wind energy said they believed the regulations were too strict. Several suggested that the regulations should only require 1.1 times the height of wind turbines between the turbines and other structures. Fiona Bagwell, of renewable energy company NextEra Energy Resources, said the regulations and particularly the required setbacks essentially functioned as a ban on wind energy.

Comments from industry proponents drew the ire of some, who told planning commissioners that they should not “put the fox in the henhouse.”

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Shortly after public comment wrapped up around midnight Tuesday, Planning Commissioner Charlie Thomas made a motion to defer the agenda item until the next available meeting time. Jeff Crick, director of planning and development services, said the commission could defer the item and come back to it without reopening public comment. Crick said the commission would probably be looking at bringing it back for further discussion in January.

After about 20 minutes of discussion, Thomas’ motion failed 5-4. Commissioners wanted to keep pushing through and clarify more questions with the ad hoc committee who had worked on the draft.

Commissioner Chelsi Hayden wanted to get more feedback from fire chiefs in the rural fire districts, which sparked similar questions and concerns for other commissioners.

Commissioner Sharon Ashworth asked about cleanup in the event that there was a blade failure or other extraordinary event. Rexroad said that under the regulations, neighboring landowners would be compensated if there were a disaster that caused loss of crops or livestock.

Commissioner Pedro Borroto asked about a timeframe for cleanup; Planner Cece Riley said there were different standards for certain issues. Significant noise, for instance, could require operators to shut off turbines until mitigating measures are in place. If there was an extraordinary event, operators would have three business days to come up with an event response plan, which would then be reviewed by the Zoning and Codes office, and then a timeline would be established.

Ashworth also asked about telecommunications interference. Rexroad said there was nothing he could identify specifically that seemed to be a credible report of such interference, but that it would not be allowed under the draft regulations.

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Hayden said there was some ambiguity and passive voice in the draft’s language on enforcement standards. “If this is the place with the teeth, how do we enforce that?” she asked.

Riley said language in the regulations such as “failure to comply with these standards may be grounds for suspension, amendment or revocation of the CUP (conditional use permit) as determined by the Board of County Commissioners” was the “teeth,” and that language was consistent with other CUPs.

Shortly before 2 a.m., commissioners were about to start discussing setbacks.

Thomas said there were still hundreds of pages of new information that commissioners had been provided shortly before their meeting and had not yet had time to review.

“I just think we are selling the public and ourselves short when we don’t have time to look at all the information before we make decisions,” Thomas said. He said the ad hoc committee knew from day one that the biggest issue would be setbacks, and to start that discussion at 2 a.m. didn’t reflect well on the commission.

Commissioner Mike Kelso agreed. He also said he was concerned about approving the draft regulations to send them on to the Douglas County Commission for consideration when they didn’t know exactly what the final wording was going to be, if little changes were made to the draft after the meeting based on the discussion.

Ashworth said she hadn’t heard any substantial changes throughout the meeting, and she wouldn’t need to see another draft to incorporate minor changes that had been discussed. Commissioner Jane Eldredge said she would want to see a final draft later on because she wasn’t sure what else she would learn in the near future, and she was uncomfortable.

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As commissioners began to discuss setbacks, Riley explained that a landowner who wanted to participate would need about 207 acres to place a single turbine in order to meet the 1,500-foot setback requirements in the draft regulations, which could be limiting for owners of smaller properties.

A 1-mile setback would require 2,560 acres of land, Riley said, and the proposed 3-mile setback from any Kansas Department of Wildlife and Parks managed properties, in order to mitigate harm to wildlife, would eliminate large swaths of the county.

The yellow areas of this diagram indicate a 3-mile radius around Kansas Department of Wildlife and Parks managed properties. Draft wind energy regulations propose a 3-mile setback between any wind turbine and KDWP-managed land. (Screenshot / City of Lawrence YouTube)

Rexroad said that in his mind, 1,500-foot setbacks from occupied dwellings were “defensible in each of those elements of sound and ice throw and flicker, and the way we’ve managed all those things.” He said he could not make that defense of 2,500 feet.

Ashworth said she recalled teaching KU students 20-plus years ago: “I warned about this very situation, where if we as a society did not curtail our energy use, we would be making some gut-wrenching decisions. And here we are.” She said she’s looked at research, and she agreed with Rexroad and that she has found no defensible reason to move setbacks back to 2,500 feet. She said some setbacks would naturally be bigger than 1,500 feet, and she was comfortable with the draft regulations.

Kelso said he disagreed and that he could defend 2,500 feet, but he would rather not get into his reasoning as the clock approached 2:30.

Commissioners had concerns about the next steps. Although they did not want to have several more hours of public comment, they did not want to limit themselves if they receive new information that could be pertinent to the regulations.

Rexroad made a motion to ask staff to create a memo with their feedback, “and to defer this conversation at its current point after public comment has been closed to the very first available time on the planning commissioners’ calendar.” Commissioners unanimously approved.

The planning commission next meets at 6:30 p.m. Wednesday, Oct. 25 at City Hall. See the agenda at this link.

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Mackenzie Clark (she/her), reporter/founder of The Lawrence Times, can be reached at mclark (at) lawrencekstimes (dot) com. Read more of her work for the Times here. Check out her staff bio here.

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