CHAPTER 357
HB 310 – FINAL VERSION
06Mar2007… 0268h
23Jan2008… 2008-0047h
05/08/08 1623s
04Jun2008… 2064cofc
04Jun2008… 2166eba
2008 SESSION
08/03
HOUSE BILL 310
AN ACT allowing municipalities to regulate small wind energy systems.
SPONSORS: Rep. W. Chase, Ches 1; Rep. Knox, Carr 4
COMMITTEE: Science, Technology and Energy
This bill allows municipalities to regulate small wind energy systems.
This bill also requires municipal building inspectors to notify abutters of a building permit issued to construct a small wind energy system.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
06Mar2007… 0268h
23Jan2008… 2008-0047h
05/08/08 1623s
04Jun2008… 2064cofc
04Jun2008… 2166eba
07-0916
08/03
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eight
AN ACT allowing municipalities to regulate small wind energy systems.
Be it Enacted by the Senate and House of Representatives in General Court convened:
357:1 New Subdivision; Small Wind Energy Systems. Amend RSA 674 by inserting after section 57 the following new subdivision:
674:58 Definitions. In this subdivision:
I. “Small wind energy system” means a wind energy conversion system consisting of a wind turbine, a tower, and associated control or conversion electronics, which has a rated capacity consistent with the net metering specifications of RSA 362-A:9 and which will be used primarily for onsite consumption.
II. “System height” means the height above grade of the tower plus the wind generator.
III. “Tower height” means the height above grade of the fixed portion of the tower, excluding the wind generator.
IV. “Wind generator” means blades and associated mechanical and electrical conversion components mounted on top of the tower.
674:59 Municipal Regulations of Small Wind Energy Systems. Ordinances or regulations adopted by municipalities to regulate the installation and operation of small wind energy systems shall not unreasonably limit such installations or unreasonably hinder the performance of such installations. Unreasonable limits or hindrances to performance shall include the following:
I. Prohibiting small wind energy systems in all districts within the municipality.
II. Restricting tower height or system height through application of a generic ordinance or regulation on height that does not specifically address allowable tower height or system height of a small wind energy system.
III. Requiring a setback from property boundaries for a tower greater than 150 percent of the system height. In a municipality that does not adopt specific setback requirements for small wind energy systems, any small wind energy system shall be set back from the nearest property boundary a distance at least equal to 150 percent of the system height; provided, however, that this requirement may be modified by the zoning board of adjustment upon application in an individual case if the applicant establishes the conditions for a variance under this chapter.
IV. Setting a noise level limit lower than 55 decibels, as measured at the site property line, or not allowing for limit overages during short-term events such as utility outages and severe wind storms.
V. Setting electrical or structural design criteria that exceed applicable state, federal, or international building or electrical codes or laws.
674:60 Aviation Requirements. Small wind energy systems shall be built to comply with all applicable Federal Aviation Administration requirements, including 14 C.F.R. part 77, subpart B regarding installations close to airports, and the airport zoning regulations adopted under RSA 424:5.
674:61 Abandonment. A small wind energy system that is out-of-service for a continuous 12-month period shall be deemed abandoned. The planning board administrator may issue a notice of abandonment to the owner of an abandoned small wind energy system. The owner shall have the right to respond to the notice of abandonment within 30 days from the receipt date. The planning board shall withdraw the notice of abandonment and notify the owner that the notice has been withdrawn if the owner provides the planning board with information demonstrating the small wind energy system has not been abandoned. If the small wind energy system is determined to be abandoned, the owner of the small wind energy system shall remove the wind generator from the tower at the owner’s sole expense within 3 months of receipt of notice of abandonment. If the owner fails to remove the wind generator from the tower, the administrator may pursue a legal action to have the wind generator removed at the owner’s expense.
674:62 Abutter and Regional Notification.
I.(a) A municipal building inspector shall notify all abutters by certified mail upon application for a building permit to construct a small wind energy system. Abutters shall be afforded a 30-day comment period prior to the issuance of a building permit. An appeal may be made to the building code board of appeals pursuant to RSA 674:34 or to the zoning board of adjustment pursuant to RSA 676:5, as may be appropriate.
(b) The cost of abutter notification shall be borne by the applicant.
(c) The building inspector shall provide notice of the application for a building permit to the local governing body.
II. The building inspector, acting as a local land use board pursuant to RSA 672:7, shall review an application for a small wind energy system pursuant to RSA 36:56 to determine whether it is a development of regional impact, as defined in RSA 36:55. If the building inspector determines that the proposal has the potential for regional impact, he or she shall follow the procedures set forth in RSA 36:57, IV.
357:2 Renewable Energy; Zoning. Amend RSA 672:1, III-a to read as follows:
III-a. Proper regulations encourage energy efficient patterns of development, the use of solar energy, including adequate access to direct sunlight for solar energy uses, and the use of other renewable forms of energy, and energy conservation. Therefore, [zoning ordinances should not unreasonably limit] the installation of solar, wind, or other renewable energy systems or the building of structures that facilitate the collection of renewable energy shall not be unreasonably limited by use of municipal zoning powers or by the unreasonable interpretation of such powers except where necessary to protect the public health, safety, and welfare;
357:3 Renewable Energy; Zoning. Amend RSA 672:1, III-d to read as follows:
III-d. For purposes of paragraphs III-a, III-b, III-c, and III-e, “unreasonable interpretation” includes the failure of local land use authorities to recognize that agriculture, forestry, renewable energy systems, and commercial and recreational fisheries, when practiced in accordance with applicable laws and regulations, are traditional, fundamental and accessory uses of land throughout New Hampshire, and that a prohibition upon these uses cannot necessarily be inferred from the failure of an ordinance or regulation to address them;
357:4 New Section; Model Ordinance. Amend RSA 4-C by inserting after section 5 the following new section:
4-C:5-a Model Ordinance. The director of the office of energy and planning shall develop a technical bulletin relative to model municipal ordinances for the construction of small wind energy systems. Prior to development, the director shall hold one or more public hearings and solicit comments from interested parties. The office shall provide a copy of the technical bulletin to any New Hampshire municipality that requests it. The technical bulletin shall be complete by September 30, 2008.
357:5 New Paragraph; Building Inspectors. Amend RSA 36:57 by inserting after paragraph III the following new paragraph:
IV. Notwithstanding the foregoing, when the building inspector determines that a use or structure proposed in a building permit application will have the potential for regional impact and no such determination has previously been made by another local land use board, he or she shall notify the local governing body. The building inspector shall also notify by certified mail the regional planning commission and the affected municipalities, who shall be provided 30 days to submit comment to the local governing body and the building inspector prior to the issuance of the building permit.
357:6 Contingent Renumbering. If SB 342-FN-LOCAL of the 2008 legislative session becomes law, then RSA 674:58 through RSA 674:62, as inserted by section 1 of this act, shall be renumbered as RSA 674:62 through RSA 674:66, respectively.
357:7 Effective Date.
I. Sections 1-3 of this act shall take effect one year after its passage.
II. The remainder of this act shall take effect upon its passage.
Approved: July 11, 2008
Effective Date: I. Sections 1-3 shall take effect July 11, 2009.
II. Remainder shall take effect July 11, 2008.