Recently, several Ohio cities have started to update their zoning codes in light of increasing solar and wind development in their jurisdictions. As new technologies and new developments move into Ohio communities, issues regarding access to solar panels and height variances for wind turbines are quickly becoming unavoidable. Jurisdictions on each coast, and other areas where solar and wind development is more seasoned, have already wrestled with their zoning codes. The successes, and challenges faced by those other jurisdictions can be instructive to Ohio cities, townships and counties moving forward.
We conducted a review of model zoning codes from across the county, as well as studies, litigation, media reports, and other literature about zoning regulations for wind and solar projects. Our review highlighted the importance of having a reasonable code that encouraged development, but balanced the needs of property owners in the process. Successful zoning codes also seemed to follow a similar process or template for considering industry standards, balancing property needs, and spurring economic development.
Importance of Zoning. Lawsuits and public disputes in other jurisdictions across the country highlight the importance of having balanced zoning regulations. In New York, the town of Centerville had a local zoning ordinance encouraging wind power struck down after citizens claimed that the town did not follow the proper environmental review procedures before enacting the law1.
In contrast, residents of Sunnyvale, California, were forced to significantly trim or cut down mature redwood trees after their neighbor took them to criminal court over the trees blocking out light to solar panels in violation of California's "Solar Shade Act" of 19782.
In another New York town, a group of residents thought the setback requirements for wind turbines in the town's zoning law were overly restrictive and stifled economic development. They circulated a petition to require a supermajority to pass a wind energy facility law, fought for that petition through the New York State appellate court, and eventually prevailed3.
A Wishek, North Dakota resident recently threatened to sue his city council over attempts to require him to remove a wind turbine because of violations of zoning restrictions4. Arguing that the city ordinance prohibiting wind turbines was enacted after his was installed, the resident refuses to take down the structure. A fight may be brewing, however, as some residents have complained about the noise the turbine makes. If the city argues a violation of the city noise ordinance, the resident may be forced to modify or remove the turbine.
These situations are just a few examples of the hundreds, if not thousands, of zoning-related disputes cropping up across the country related to solar development, wind turbines, and other advanced energy technologies. A review of the literature suggest that failure to address advanced energy development in zoning codes seems to be as likely to generate problems as is an overly restrictive code. At the same time, academics contend that it is "initiatives at the local level that have the greatest potential for most quickly and most efficiently slowing the pace of global warming." 5. A balanced approach that allows reasonable wind and solar development, while still considering landowner concerns, may be the best way for Ohio jurisdictions to stay ahead of this rapidly-developing issue.
Template for Zoning Advanced Energy. Ohio municipalities that decide to update zoning codes to include advanced energy concerns can start by answering a few threshold questions. The following questions can frame the direction for new zoning measures:
- Will the code address wind, solar, and other sustainability issues, or a combination of all three?
- Will certain advanced energy uses be limited to special districts?
- How will the zoning code interact with neighboring city, township, and county legislation?
- Are wind turbines, solar panels, and geothermal systems considered a permitted use or allowed by zoning as-of-right?
- Will the inclusion of advanced energy products be allowed based on objective criteria or a more subjective "impact" test?
- Will a "bonus" system be implemented whereby increased density is allowed commensurate with use of sustainable practices?
After setting the general framework for a new zoning code, Ohio jurisdictions should consider the guiding principles that will determine if a project will focus on specific advanced energy land use practices or more general community planning language. Guiding principles should include:
- Definitions of the advanced energy technologies involved that capture existing technologies, but leave reasonable room for new developments;
- Building form and orientation for energy efficiency considerations;
- Landscaping principles;
- Storm water management solutions;
- Architectural expressions;
- Residential liveability;
- Safety; and
- Removal/abandonment of equipment.
A green zoning code should pay particular attention to definitions, advanced energy project description and criteria, and any and all legal considerations. A thorough understanding of the advanced technologies that are currently on the market, as well as those in development is very helpful. Legal considerations may include anything from liability for damage caused by renewable product failure, structural and building code requirements, as well as any Federal Aviation Commission concerns or air and water rights.
In addition, green zoning codes must take into consideration the issues of concern to residents and neighbors of advanced energy projects. Understanding light emittance, ice shearing, reflectivity and shadow flicker are important to developing a balanced zoning code.
Why Density Matters. A "great debate" between sustainable development practices and environmentally friendly zoning may be looming for green zoning scholars and practitioners. At the forefront is a concept known as "density zoning," a type of cluster zoning used to regulate open spaces, population density, and land use.
Many communities are considering "transit oriented development," cluster development, and mixed use development as techniques to battle sprawl6. Density is encouraged for increased access to public transportation, reduction of sprawl, and the creation of "walkable" neighborhoods. Access to public transportation and density considerations can even contribute points to Leadership in Energy and Environmental Design (LEED) projects. Many municipalities are entertaining "density bonuses" which will permit relaxed height and setback requirements for building more dense developments7.
This focus on density can come in direct conflict with many advanced energy and environmentally friendly considerations. In particular, dense developments can contribute to increased runoff from impermeable surfaces and heightened "heat islands" which can drastically impact energy efficiency measures.
Perhaps most important, the denser an urban neighborhood, the greater the risk of impacting small-scale wind and solar development. A community that encourages transit oriented or cluster development may discover conflicts with a community's desire to encourage light access to solar panels or safe setbacks for wind turbines.
In Cleveland, for instance, the City Council is debating new zoning rules for wind turbines8. One component of the language is a setback for all turbines equaling 1.1 times the turbine's height to create a safe "fall-zone" for any accidents that may occur. With a proposed height limit of 35 feet for residential wind structures, the setback requirements could greatly impact dense development plans.
Conclusion. A community should carefully weigh all potential factors involved in "greening" the local zoning code. With a clear understanding of the end goal, a municipality can satisfy residents' concerns while encouraging new energy development. Elected officials and planning officials must have a plan when updating their zoning code to react to a new advanced energy world. With that plan, the process can go smoothly and result in real benefits to the community as a whole.