Wind Turbine Regulations Approved by Planning and Zoning Board at Valentine Meeting

January 24, 2019. Wind turbine regulations approved by Planning and Zoning Board at Valentine meeting. Grant County News 134(26): 1, 4, 7.

Requests to ban industrial wind turbines in Cherry County and to reclassify massive wind turbine structure as industrial from their current commercial/utility classification in applicable regulations were approved by the members of the Planning and Zoning board at their meeting on January 15th at Valentine.

A public comment period allowed further details to be given for the requests by Messrs. Wayne Eatinger and William Weller.

Eatinger was the first to speak while presenting a map graphic that showed the potential impact that wind turbine developments could have upon the Cherry County landscape. Circles with a diameter of 24 miles were centered on land spaces where turbine developments might occur because the land owners are associated with legally filed easements. The vast majority of the county was within one circle or another. Especially indicative were the four circles originating on the periphery of the McKelvie Division, Nebraska National Forest. There would be one place or another within this grassland and forest plantings expanse – with some of the best dark skies of the central Great Plains – where 600 foot-tall wind turbines could always be seen from a prominent vantage.

The 12-mile radius represented by the map was a conservative estimation. This distance is now known to be inadequate. A tall wind turbine 15 miles away can be readily seen from the right point of view. One turbine west of Valentine can be seen from near Kilgore, a distance of 24 miles, according to west Kilgore resident Carolyn Semin.

There are apparently plans to revise this map to indicate a distance of 15 miles.

The next map graphic was personally presented. It had a title of “Map Graphic Indicating Property Owner Perspectives Regarding Placement of Industrial Wind Turbines Within Cherry County” based upon individual considerations a vast amount of land parcels.

This evaluation indicated what is known for vast swaths of the county. Thanks to Brock Moreland and Rick Weber for their help in getting the map steadily placed on an easel so the P&Z board could get a suitable view.

These are the indicative color-codes on the map graphic, and they are indicative, as derived from known facts:

• Red: property owners opposed to industrial wind turbines. Derived from comments at public hearings, public records and most recently, direct personal communications (i.e., phone calls and conversations) as a result of ongoing efforts by many concerned residents that want a range and ranch land setting. Red is the most prominent color on the map graphic, readily indicating the expansive opposition by ranch families, individuals, ranch corporations, and others to industrial wind turbines. Many neighbors stand together in their solidarity of opposition to industrial wind turbine development in Cherry County country. Nearly every proposed wind turbine locality is surrounded by red because the neighbors do not want any turbines among the hills.
  

  A multitude of parcels for owners of some of the largest tracts of land in the county are included in this category.
  Green: public property including Valentine NWR and Fort Niobrara NWR, Niobrara Valley Preserve owned by The Nature Conservancy, wildlife management areas owned by the Nebraska Game and Parks Commission, Nebraska National Forest - McKelvie Division, Niobrara National Scenic River, Bowring Ranch State Historical Park. There are also sites where conservation easements conserve the range land setting (i.e., Vanderploeg place along the Niobrara River south of Valentine, Horse Creek Ranch, and Jumbo and Pullman Valley Fen, etc.). There are also a few USA owned tracts where turbines could not be placed on these small, publicly owned and isolated land parcels. Some of these parcels are managed as part of Valentine NWR.
  

• Yellow: spaces where turbines could or would not be placed based upon location or public sentiment. There will be no industrial wind turbine facilities placed within Valentine, nor amidst any housing tracts or local to Miller Airport. There will be no industrial wind turbines placed within county villages. There are also land tracts where a land-owner has not indicated whether they are for or against wind turbines but will not have wind turbines on their property. This coloration also includes a few sections owned by the State of Nebraska, without a BELF ownership designation, and where the citizens of Nebraska need to be able to voice their opinion on any and all drastic land management decisions.
  
• Brown: enrolled members of Cherry County Wind LLC or people that have expressed support for wind turbines being placed upon their property. The extent of land enrolled by “forwindees” is readily available in Cherry county public records.
  
• Black: isolated parcels where the Board of Educational Lands and Funds colluded with Cherry County Wind LLC to enroll publicly-owned parcels for involvement in potential wind-turbine development. There was no public involvement in any decision by the agency board. There had to have been some collusion as the parcels indicated by county records of agreement match so well with associated private property included for potential, future industrial wind turbine development.
  
• 
  Purple: land owned by R.E. “Ted” Turner and former state senator Al Davis. Both have been involved in efforts to promote wind turbines but have not indicated whether they would allow turbines on their property. Turner has replied to inquiries on whether industrial wind turbines would be placed on any of the Sandhills Ranch Properties in Cherry, Sheridan and Garden counties. There has been no definitive answer provided.
  
• Blue: wetlands including so many special lakes, including at Valentine NWR where millions of dollars are being spent to improve the quality of the waters for subsequent values for people fishing and bird-watching. There are also prominent sections of rivers where industrial wind turbines will never be built.
  
• White: representing property owners that are neutral in regards to the placement of industrial wind turbines or land-owners whose view is not yet known. There are multiple blank parcels included in this category because they are owned by members of the planning board as well as a county commissioner or two.
  

Efforts will continue to determine landowner positions and further convey perspectives on the map graphic until the day when the commissioners have their required public hearing.

During the meeting, several people vividly expressed their views. Others were present to convey their support for the two amendments.

There is “overwhelming support for not having wind turbines in Cherry County,” said Craig Andresen of Wood Lake.

Mr. Rick Weber indicated that the people he deals with in his real estate business want to come to the sandhills because of the great grass resources and since it is such a unique place. The “wind turbine gold rush is over,” he said.

When William “Billy” Weller stood and spoke in support of his amendment request, his poignant point was that current residents are “stewards of our heirs.” His request is another piece of the puzzle that fits together in the discussion regarding wind turbines, and received great support.

From the Brownlee village country, there came additional voices.

“There is a lot of wisdom in both amendments,” said Craig Miles, while he came to town from his legacy ranch way to the south of the Heart City. He has spoken to again and again and once more in opposition to wind turbines. On the 15th he expressed the importance of dialog and the value of listening.

Barb Welch of the Brush Creek Ranch with its north unit west of Brownlee added other indicative comments. “There is a time and place for everything,” she said. “Stop and think of what you are doing,” she said while continuing to speak to the Planning and Zoning Board. There are important places where there should not be industrial wind turbines. She conveyed once again the views from a woman against wind, that no one wants wind turbines to be seen from Mount Rushmore and other important national monuments citizens know to be are important. “Don’t put turbines in a place we treasure,” while she spoke about the Great American Sandhills.

Gary and Glenda Phipps residing in the north Whitman country also drove a bunch of miles to be present. Wind turbines are a “little bit of money for some people,” he said.

When Bob Stetter stood to speak, there was complete silence in respect as there had been throughout the public comment period. Bob got his notes together and then expressed a local radio station comment spoken on the local radio station: “welcome to paradise.” “Keep the sandhills a paradise,” Stetter said in agreement, adding other expressions indicating that industrial wind turbines should be kept out of the Sand Hills.

A complete slate of P&Z board members was not present on the 15th. At least newly appointed member Duane Kime was there. The newly appointed woman from the Cody was not seen anywhere near the Valentine meeting room. She was appointed and could not even attend the first meeting of her tenure.

About 50 people attended the meeting and when the crowd was asked to stand if they supported the two amendments, everyone stood. This included stalwarts that have once and again stood with their neighbors in opposing wind, including personal time, travelling to pertinent meetings, doing research and otherwise being involved in the process for the past few years. They included these neighbors, as representative: Semin, Weber, Moreland, Welch, MacLeod, Trimble, Witt, Young, Wolfenden, McCormick, Rhoades, Mundorf, Gallinol, Warren and Hanna, et al.

Both amendments will henceforth by submitted to the county commissioners. A public hearing will then be scheduled. The three commissioners will then decide on whether these amendments would be enacted, and thus the fate of Cherry County in regards to industrial wind turbines.

Application for Replacement of a US Cellular Communications Tower

Comments submitted to Cherry County Planning and Zoning Board by James E. Ducey; May 1, 2018. A copy of these comments was provided to each member of the board.

A public hearing cannot be held on this Conditional Use Permit 002/18 request to replace a communications tower north of Valentine because the application is not complete. There was not a suitable public notice as a single sentence within an ongoing paragraph on the public notice of the local newspaper is not sufficient, especially in comparison to the more prominent public notice issued for a public hearing at the county commissioner meeting.

The application associated with CUP 002/18 should not even be considered, and especially not approved, because it is deplorably inadequate. It does not include many items as required by Cherry County Zoning regulations, dating to 2008. The following refer to a specific item(s) as required for any CUP proposed and as applied for by the CUP application for this site.

This is "exhibit two" which was submitted to show the locations of residential dwellings. This aerial photo depicts a locality and does not indicate a single dwelling.

Application item Number 4, item g: “The locations of residential dwellings and other non-agricultural land uses within four miles of the property to be affected by the proposed Conditional Use.”

The application refers to Diagram 2. This large-scale aerial photograph diagram does not have any of the detail necessary to determine any of the many residences within four miles of the site that will be affected by the proposed conditional use. Also, obviously, any other land uses are not indicated, including wildlife, park areas and natural spaces owned by the citizens of Valentine.

Also missing from the CUP applicant and application material provided to the zoning administrator are these items as specifically referred to in the Cherry County zoning regulations.

Section 612.01 Intent

“Telecommunication facilities, towers and antennas in the County, to protect residential areas and land uses from potential adverse impact due to the installation of towers and antennas through special design, siting, and camouflaging, to promote and encourage shared use/collocation of towers and other antenna support structures rather than the construction of additional single use towers, to avoid potential damage to property caused by towers, telecommunications facilities and antennas. ... Also to ensure such structures are soundly and carefully designed, constructed, modified, maintained, repaired and removed when no longer used or are determined to be structurally unsound and to ensure that towers and antennas are compatible with surrounding land uses.”

There is no mention in the CUP application on how camouflaging will be used to screen the tower property tract, notably landscaping such as planting trees to mask the fence, building and base of the tower.

How has the applicant indicated that a cellular tower is compatible with “surrounding land uses” which includes, residential acreages and agricultural-related uses? There is also Government Canyon, which is a state of Nebraska wildlife management area established and maintained for many years for a wide variety of outdoor recreation pursuits. The proposed tower is an industrial use and does not conform to any of these land uses and their associated values.

Section 612.03

“2. No proposed tower shall be located within five miles of any existing tower, without approval of the Cherry county Board of Commissioners.”

How can this criteria be suitably evaluated if the necessary information is not provided by the applicant’s request.

“4. ... Upon completion of construction of a tower and prior to the commencement of use, an engineer’s certification that the tower is structurally sound and in conformance with all of the aforementioned applicable regulatory standards shall be filed with the Zoning Administrator.”

There was no item found in the application on how the applicant will comply with this regulation, nor the timeframe when it will be completed?

Section 612.04

“1. ...Applicants shall include the owner of the tract of land and all persons having an ownership interest in the proposed tower. The application shall be executed by all applicants.”

These details were not found in the applicant’s request packet. And note that the zoning regulations states “all persons” having an ownership interest, not just the company business name. “All persons” indicates everyone that has any ownership stake in the US Cellular. This would perhaps include users of the companies’ cellular service? This application was not “executed” by all applicants, but instead by an “agent” company for the owner of the proposed tower.

“2. The legal description and address of the tract of land on which the tower is to be located.”

There is no apparent proper road address included with the application that is a requirement for emergency response crews. Also, there is only a partial, and insufficient legal description; indicating the north one-half of a section is not detailed enough for a facility as small as the communications tower tract which is just relatively a short bunch of feet in extent. The quarter section should be specifically indicated, and even more details as appropriate.

“3. An affidavit attesting to the fact that the applicant has made diligent but unsuccessful effort to obtain permission to install or collocate the applicant’s telecommunication facilities on a tower or useable antenna support or written technical evidence from an engineer that the applicant’s telecommunications facilities cannot be installed or collocated on another tower or useable antenna support structure.”

This affidavit was not provided in the material provided to the zoning office, as it was not found among the application material available for review at the zoning administrator office on the morning of 26 April. Any cost to conduct this evaluation and prepare this affidavit should be paid for by the CUP applicant, and should be done by an independent engineer, not a company employee, nor a hired agent submitting the application, and not an employee of a subsidiary company of the applicant. This affidavit needs to represent an independent and non-biased perspective.

“5. Designation of an appropriate space for Cherry County’s operational and emergency services communication equipment to be provided at no cost to the County by the applicant.”

How has the applicant indicated that this requirement will be met?

Section 612.06

“4. Towers must meet the following minimum separation requirements from other towers:

“A. Monopole tower structures shall be separated from all other towers, whether monopole, self-supporting lattice, or guyed by a minimum of 750 feet.

“B. Self-supporting lattice or guyed towers shall be separated from all other self-supporting lattice or guyed towers by a minimum of 1,500 feet.”

Building a new monopole tower within less than 100 feet of another tower does not conform to these zoning regulations. Any excuse that one tower will replace another means this regulation will temporarily not be in compliance (when will the old tower be removed?). The regulations are obvious ... remove the first tower and then build the new tower to comply with this zoning requirement.

Also, by-the-way, the filing fee for communication tower applications should be increased to $250 to pay expenses for publishing suitable public notices – and which should not be a sentence in an ongoing meeting notice - and to offset costs for the time required by the zoning administrator to review applications and to make sure they are filed in accordance with all applicable zoning regulations. County residents should not be required to pay any sort of costs for a tower being placed by a for-profit company such as US Cellular, as indicative by this application.

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Though most of these items were not considered by the members of the Planning and Zoning Board, the request for the CUP was approved by an unanimous vote.

It is a common point-of-view that the members basically ignored the zoning regulations. What is the purpose of regulations if they are ignored by a board responsible for making sure that any CUP application meets the requirements?

Changes to Zoning Regulations Approved by Cherry County Planning Board

November 16, 2017. Grant County News 133(16): 1, 4.

Valentine — Several significant changes to the zoning regulations were approved by the Cherry County Planning and Zoning Board at their monthly meeting during the evening on November 7th.

Items approved by a board member vote of 6-2 were:

• a setback of one mile from a non-participant property boundary for any turbine
  
• a setback of two mile from the dwelling of any non-participant
  
• a setback of three times total wind tower height from any road right-of-way or other rights-of way; and associated with this: no wind energy conversion system (WECS) shall cast any shadow flicker on any public road
  
• a setback of one mile from any public conservation lands including wildlife management areas and state recreation areas
  
• no WECS shall exceed 35 dba at the nearest non-participant dwelling during normal weather conditions
  

There were 28 people that provided testimony during the public hearing, with 18 against wind turbines in the county, and ten turbine proponents. Many of the comments made represent the many topics heard since an initial proposal for a conditional use permit for a wind turbine facility south of Kilgore, many months ago. Several people that spoke had not originally planned to speak, but after hearing comments, added their testimony to the public discourse.

An essential item not included in the tentative regulation revisions was a suggestion that there be legal documentation that a non-participant in a project has waived any setback distance(s). It was suggested that there be a “wind energy easement” filed as an official county record. No action was taken on this.

These items will be further considered by the Cherry County commissioners, probably before the end of the year.

Also approved at the meeting was a document giving a report on three items, as requested by the commissioners. The zoning board had been working on the report since January, and during this period there was a “moratorium” on any conditional use permits associated with wind turbines. The three topics were:

1) influence of wind turbines on property values

2) findings regarding a wind turbine fire and how it will be dealt with by volunteer fire departments

3) impacts on health because of operational turbines

In addition, the report identified five other “major concerns” including viewscape/landscape; wildlife protection; powerline encroachment; decommissioning of WECS; and, property rights. There was also some verbiage that the commissioners review details associated with Nebraska legislative bill 504 and testimony presented at a public hearing at Lincoln on legislative resolution 125.

This report was approved by an 8-0 vote of planning board members.

More than 50 people attended the meeting held in the county court room.

The county commissioners will also have a public hearing before voting on any permanent changes to the zoning regulations.

Cherry County Planning Board Violates Open Meetings Act

(Copyright 2017 James E. Ducey. All rights reserved) Also issued in the Grant County News.

The Cherry County Planning and Zoning Board violated the Open Meetings Act during their morning meeting on July 21st at the commissioner’s room at Valentine.

The three items which were violations are indicated in Section 84-1412 of the Act.
The first and most egregious violation was of subsection 1, which states: “…the public has the right to attend and the right to speak at meetings of public bodies …”

There was no comment period item on the agenda and there was no opportunity given to allow public comments by attendees.

This is especially problematic because Gary Swanson stated at the previous meeting of the board in early July that public comment would not be allowed at their next meeting. Despite my objections at that time that this would violate the Open Meetings Act and with a strident request to the board that this objection be entered into the public record, this statement was not corrected, nor was any subsequent action taken by board chair Jim Buer. These two board members and everyone on the board was told that to not allow public comments would be a violation of the Open Meetings Act.
Buer stated I should talk to Eric Scott, the county attorney. Following a meeting with the attorney there was a better understanding on how to deal with any potential violations.

A subsection 4 of the Act states: “Any member of a public body who knowingly violates or conspires to violate or who attends or remains at a meeting knowing that the public body is in violation of any provision of the Open Meetings Act shall be guilty of a Class IV misdemeanor for a first offense and a Class III misdemeanor for a second or subsequent offense.”

Therefore, each member of the board present on July 21st knowingly violated the Open Meetings Act, especially since each of them had been present at the meeting earlier in the month and heard the notice that to not allow public comment would be a violation. This means there has been a legal offense by eight members of the board, including messrs. Billings, Buer, Ericksen, Lee, Mathis, Pabst, Swanson and Wheeler.

Another pertinent subsection states that “Public bodies shall make available at the meeting or the instate location for a telephone conference call or videoconference, for examination and copying by members of the public, at least one copy of all reproducible written material to be discussed at the open meeting.”

There was no public copy available in the meeting room of a) the meeting agenda, and b) the minutes, so there were two distinct, additional violations. Photocopies of both items were however given to members of the board by the county zoning administrator.

Just before adjournment of the meeting – with an insistence to speak – a formal, verbal objection was made with a request that it be entered into the public record. This was personally done to comply with an annotation to Sec. 84-1412, which states: “To preserve an objection that a public body failed to make documents available at a public meeting as required by subsection (8) of this section, a person who attends a public meeting must not only object to the violation, but must make that objection to the public body or a member of the public body.”

This clause was read in its entirety to ensure that the board members and public present understood the complaint. The objection was told to the eight members of the board that were present, as well to the more than ten members of the community present. The entire meeting was videotaped by an attendee so there is an obvious record.

Because of these violations, there is an opportunity to file a civil law suit as Section 84-1414, subsection 1 allows recourse: “Any motion, resolution, rule, regulation, ordinance, or formal action of a body made or taken in violation of the Open Meetings Act shall be declared void by the district court if the suit is commenced within one hundred twenty days of the meeting of the public body at which the alleged violation occurred.” This language is reinforced in subsection 3.

Subsection 2 states that the “… county attorney of the county in which the public body ordinarily meets shall enforce the Open Meetings Act.” This would be Mr. Scott in Cherry county.

It also needs to be known that despite multiple and repeated requests by some meeting attendees for a sign-in sheet, both the planning and zoning board and county commissioners continue to disregard this means of getting into the official record the names of people that have taken the time to be involved in the public discourse. The excuse given is that this is a courtesy not a legal requirement. It is a request which elected public officials apparently prefer to ignore. At multiple meetings, an attendee has personally gotten together a sign-in sheet and spread it around so that public involvement would be documented.

Meeting Postponement Inhibits Civic Involvement in Cherry County

An error in a published, public legal notice for a conditional use permit was apparently a basis for the postponement of the February 7th meeting of the Cherry County Planning and Zoning Board at Valentine.

At the January 31st meeting of the Cherry County Commissioners, it was indicated by public comment that the legal description given in the public notice in the newspaper of record – and as also sent to adjacent landowners – was erroneous. It stated: “section 20, T34N R29S” instead of the accurate T34N R29W. There was agreement that there is no such place, based upon accepted means of identifying land parcels.

After some discussion, the commissioners agreed – based up people in attendance as well as a prominent attorney – that the procedure to follow would be to open the scheduled public hearing at the zoning meeting, and then close the hearing for the CUP 01-17 application, and for it to be considered at a later meeting, following the publication of a corrected legal description via a public notice. The county attorney had a similar point of view.

The result. The meeting was postponed for some unapparent reason.

What a mistake this was as there were other items on the meeting agenda that had been properly placed by personal request. There were two items indicated under old business as item a: 1) deicing turbine blades, and 2) Wetlands (zoning and general plan). Dean Smith was also an invited guest that was going to speak on land values in regards to wind turbines. An ongoing item that would have been dealt with was to “review progress on wind study & commissioner’s request.”

The people that had properly requested that these items were on the agenda, were stifled from speaking in a timely manner and being involved in a civic manner for items which should have been addressed at the 7th meeting. Since when do items of concern to county residents be cancelled, seemingly because of a CUP request – which is not entirely compliant - by a corporate interest. The public hearing for this CUP was just one item on the agenda.

A request will be made for the “record” of how and why the meeting was postponed. For example, what discussions occurred, and by whom, prior to the decision for the postponement? This was a decision made by people representing Cherry county and is therefore public information.
This is another example – as well as several others previously – how mistakes are mistakes are being made that cause unnecessary travel, result in inaction, cause frustration, as well as other issues by county residents that expend their personal time and money to be involved with county government action or inaction.

It is obvious that the procedure to reschedule was deficient.

There had been a change in the meeting date placed on the front door of the Cherry county administrative center, apparently on February 3rd, according to a county official.
This is wholly inadequate. How many people drove in from homes many miles distant to check the front door about a significant change in a previously scheduled public meeting? There had been nothing heard on the radio. There was nothing in the local newspaper, but to learn from that source would require a subscription or purchase.

The six people present for the meeting had driven a distance of either 38 miles, 45 miles, 65 miles and 25 miles, and even walked two miles in cold weather to be at the meeting room at Valentine.
There is an indication that a phone call was made to one of the people, but they had been traveling, so the phone message received was known too late to change travel plans that included hurried travel of hundreds of miles.  Should an email be sent to another person with indicated items on the agenda, as they cannot afford a phone? During a discussion at the Valentine sale barn, a county landowner said they had heard that the days’ meeting was cancelled. This ranch wife then called the wife of a member of the zoning board to confirm that this was the case.

The meeting should have occurred as scheduled so that other important items on the agenda would have been dealt with!

There was enough concern/frustration about this situation that a small contingent of concerned citizens walked southward along Main Street to meet with Eric Scott, county attorney. He graciously took time to listen and respond to key topics of interest. All of the seats within the office of attorney Scott were appropriately occupied during the evening hour.

There are also other items of concern in regards to the planning meeting agenda. As given on the official Cherry county website, the date of the meeting was indicated as February 6th, though the meeting was to occur on the 7th, the previously defined Tuesday afternoon meeting day. Also, there was no “public comment” period agenda item as had been indicated at the January 3rd meeting would henceforth be a regular agenda item.

Ironic is that a newly issued public notice for a public hearing on CUP 01-17 – as issued in the February 8th newspaper of record, the legal description given is still not completely accurate; “Section 20, T34N R29” does not meet any required designation as required for any land parcel, and would be found to be inadequate in regards to any land transaction. The CUP application may be accurate, but the public notice is not. As least the revised notice had been revised to remove inconsistencies about the ability for members of the public to speak, as indicated at the most recent county commissioner meeting.