Jun 25, 2010 By Amy Revak 4 min read

The Fayette County commissioners Thursday tabled a request by a company planning to construct a wind turbine project on Chestnut Ridge to change the measurement of sound levels and where they are measured in the county zoning ordinance. Iberdrola Renewables of Portland, Ore., formerly PPM Atlantic, is slated to construct 23 wind turbines in Georges, Springhill and Wharton townships this summer. Construction is expected to take a year.

Iberdrola was requesting that the ordinance be changed to eliminate one sound measurement and change where the sound measurement on neighboring properties occurs.

Iberdrola was seeking for the ordinance to only include a measurement of 55 “dBA” decibels from a certain point, and exclude any reference to a “dBC” decibel level. The “A” scale is more widely used than the “C” scale for measuring sound.

The ordinance currently reads that the allowable sound level from the neighboring property line is 55 dBA and dBC.

The second change alters the site of the decibel level measurement from “at the lot line of a non-participating lot” to “from any permanently occupied building existing as of the date of the application for the windmill/wind turbine(s) on a non-participating lot unless the non-participant shall have executed and recorded a consent.”

After tabling the request by Iberdrola, commission Chairman Vincent Zapotosky suggested that the commissioners submit an alternative to the Fayette County Planning Commission for consideration to have the sound level be raised to 70 dBA, and the measurement occur from the property line of adjoining property owners.

Zapotosky said the former ordinance was at 70 decibels, and he wants to remain consistent.

Zapotosky referenced a recent opinion by Judge Steve P. Leskinen stemming from an appeal by Iberdrola in response to a denial by the Fayette County Zoning Hearing Board for some of the wind turbines. In the opinion, Leskinen indicated that the zoning board required Iberdrola to conduct sound studies to determine the decibel level at each properly line once each turbine is operational.

Leskinen noted that the impact of the noise “is an appropriate zoning concern” under the municipal planning code. However, he also wrote that the condition is not reasonable because the zoning ordinance states that the noise cannot exceed 70 decibels from a property line.

The jurist wrote that the condition is further unreasonable because a representative from the turbine company presented uncontradicted testimony that it was “impossible” for the turbines to reach that decibel level, even at the base of one of the towers.

“There is no evidence of ‘harm’ at this point, so a condition dealing with such a non-existent harm is an abuse of discretion,” Leskinen wrote.

“If the towers ever do reach 70 decibels at a non-participant’s property line, then the ordinance as written should allow them to protect themselves.”

Thomas J. Bozek III of Springhill Township, whose property is located near the proposed wind farm, said the issue has been discussed at length, and he doesn’t understand why the noise level needs to be changed now.

Zapotosky said he believes 70 dBA is fair from the property line, adding that Leskinen’s ruling reflects that opinion as well.

Bozek said that it was stated that 70 dBA is too high.

Zapotosky said surface mining and industrial uses set the decibel level at 90 dBA. Under the current ordinance, wind turbines are permitted in agricultural and industrial zones.

Zapotosky and Commissioner Vincent A. Vicites voted to pass the recommendation on to the planning commission, with Commissioner Angela M. Zimmerlink voting against it. Zimmerlink said she hasn’t read the court opinion.

Zapotosky said once the planning commission reviews the issue, it would come back to the commissioners twice before it could be changed, once for a rezoning hearing and at a public meeting.

The matter started in 2007 when the company filed petitions with the zoning board asking for variances and special exceptions to permit construction of the project.

Following several hearings, the board denied all of the requests, prompting Iberdrola to appeal.

In April 2009, Judge Ralph C. Warman sent the application back to the board, which granted requests related to 22 turbines, and denied requests for eight others.

Iberdrola appealed again and the case was assigned to Leskinen. The company alleged the board should have granted setback various and special exceptions for the eight unapproved turbines.

Leskinen agreed, and granted setback variances and special exceptions for those turbines.

The company also claimed that five of the seven conditions that the board imposed on the 22 approved turbines were unreasonable.

The conditions included a requirement that the company construct a 12-foot-high, chain-link fence around the base of each turbine, revegetate any forestland that was disturbed in construction and conduct sound studies.

Leskinen found that fence construction and revegetation were unreasonable and threw out those conditions.

He also found that the sound requirements were unreasonable and threw those out.