The Town of Islip, NY recently amended its zoning ordinance to allow the construction of wind turbines on residential, commercial and industrial properties within the town. The ordinance provides guidelines for the deployment of wind energy power facilities and puts Islip a step ahead of other Long Island municipalities by permitting the use of wind power as an alternative energy source in a suburban area. According to the town, this ordinance was enacted in response to constituent requests to use wind turbines as alternative energy sources and to address concerns about the use of fossil fuels and global climate change.

The town’s wind energy accommodations are timely given the volatility of the cost of fossil fuels and the stated goals of the Obama administration to encourage and bolster new clean-energy initiatives.

The town will treat the application approval process for wind energy turbines as an administrative review by the Town Building Department or the Town Planning Department. A site plan review may be necessary where a turbine’s location affects landscaping and/or parking. If an application is denied, an applicant can seek a variance from the Town Zoning Board of Appeals.

The ordinance, entitled “Accessory Wind Energy Turbines,” establishes comprehensive rules governing height, setback restrictions, noise and color of turbines on properties. The ordinance permits free standing tower turbines and roof mounted turbines, and has two separate height restrictions, depending on the primary use of the property. The minimum set back restrictions are controlled by the height of the wind turbine.

The ordinance was enacted primarily to allow property owners to construct wind energy turbines to provide supplemental power to structures or dwellings located on individual properties. Turbines would be considered accessory to these primary structures. The ordinance does not permit the sharing of power between adjacent properties, but any excess power produced by a turbine should be purchased by the local utility as required by federal regulations. Moreover, the ordinance does not limit the number of turbines on a property provided they comply with the newly prescribed height and setback restrictions. Otherwise, variance relief would be required where there is non-compliance.

The ordinance prohibits free standing tower turbines in front yards, and all wind turbines must be set back from a rear or side property line at a distance greater than the height of the turbine. Roof mounted turbines may be on the rear portion of flat roof or the rear facing part of a pitched roof.

Further, if the primary structure’s use is residential, commercial, office or general service, a wind turbine’s height cannot exceed 45 feet or a maximum of 42% of the lot width. For a structure whose primary use is industrial, a wind turbine cannot exceed 70 feet or a maximum of 50% of the lot width. These limits are for free standing wind turbines, as well as roof-mounted.

Additionally, in order to reduce the visual impact of wind turbines, Islip may further limit a turbine’s height to what it would consider a maximum effective height. Height limitations “may be approved only upon submission of proof satisfactory to the Building Department and/or the Commissioner of Planning that such height is necessary in order to extend a proposed turbine beyond a zone of turbulence created by surrounding trees, roofs or other structures which may affect the efficiency or total power output of said turbine.”

Other restrictions in the ordinance govern certain characteristics of the wind energy turbine facility, such as noise, color and “shadow flicker.” The wind turbine noise output must not exceed 55 decibels,5 and the turbine cannot be lighted beyond what the FAA requires. The wind energy turbine should be an unobtrusive color and be designed to withstand 120 mph winds. Shadow flicker on adjacent properties must be reasonably minimized.

This ordinance’s restriction on the sharing of power raises interesting questions concerning how the town will deal with large commercial properties that are owned by the same principal, but where individual adjoining lots are held in the names of different holding companies.

Furthermore, given that the ordinance allows a greater height for wind turbines constructed accessory to an industrial use, it is more likely that industrial property owners will erect turbines on their property. The Town, though, may reduce the height of any turbine to what it would consider a maximum effective height and thus limit a turbine’s effectiveness.

The Town of Islip has established practical guidelines for the placement of wind energy turbines within the town, and has taken the lead among suburban towns by allowing its property owners to embrace wind energy as an alternative power source. However, it will remain to be seen if the ordinance results in the construction of any wind turbines within the town.

Keith P. Brown. Esq. is a partner in the Garden City, NY, law firm Brown & Altman LLP, which specializes in real estate and environmental law.

Click to read more: BA Islip Wind Legal