SENATE DOCKET, NO. 2381 FILED ON: 1/13/2010
SENATE . . . . . . . . . . . . . . No. 2245
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The Commonwealth of Massachusetts
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In the Year Two Thousand Ten
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An Act relative to comprehensive siting reform for land based wind projects.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
SECTION 1. This act shall be construed in a manner to achieve its public purposes, which are to encourage the development of clean, renewable, electric generating plants and ancillary facilities powered by wind, ensure that such facilities are sited in appropriate locations based on clear, predictable and protective environmental, cultural and historic resource standards and streamline the permitting of such facilities at the state and local level and reduce delays associated with appeals of such permits.
SECTION 2. Section 10 of chapter 25A of the General Laws, as amended by section 22 of chapter 169 of the Acts of 2008, is hereby amended by adding the following subsection:-
(g) The department shall have a full-time employee who shall work within the division and collaborate with regional planning authorities to provide technical assistance to municipalities with respect to the siting of wind energy facilities.
SECTION 3. Section 3 of chapter 40A, as appearing in the 2008 Official Edition, is hereby amended by inserting after the words “public service corporation” in lines 46 and 53-54 the following words:- or by any person or entity to generate and transmit electricity derived from wind.
SECTION 4. Said section 3 of said chapter 40A, as so appearing, is hereby amended by inserting after the words “the corporation” in line 56 following:- or of any person or entity to generate and transmit electricity derived from wind.
SECTION 5. The General Laws are hereby amended by inserting after Chapter 40S the following chapter:-
Chapter 40T: Wind Energy Permitting
Section 1. As used in this chapter, the following words shall, unless the context clearly requires otherwise have the following meanings:-
“Facility”, a wind energy facility.
“Local boards”, boards, commissions, officials or other municipal agencies or authorities who would otherwise have jurisdiction over any portion or all of the siting of a proposed facility.
“Interested Party”, an abutter; abutting municipality; a lawfully established trust, corporation, partnership, sole proprietorship, firm, franchise, association, organization, holding company, joint stock company, receivership, business or real estate trust or any other legal entity organized for profit or charitable purposes who is substantially and specifically affected by a proposed facility; or any group consisting of not fewer than 10 residents of the municipality in which the facility is proposed.
“Regional planning agency”, an agency with regulatory authority to issue permits, licenses or other governmental approvals for particular land uses within its jurisdiction.
“Wind energy facility”, a facility including blades, turbines, towers, supports, foundations and any ancillary facilities such as roadways, transmission or distribution lines, substations and any other buildings, structures or equipment whose primary purpose is to support the generation and delivery of electricity of at least 2 megawatts powered by wind; provided, however, that wind energy facility shall not include structures or buildings whose primary purpose is unrelated to the generation and delivery of electricity powered by wind.
“Wind energy permitting board”, municipal board appointed under section 3 or if no board has been appointed, the planning board in the city or town of the proposed facility.
Section 2. A municipality with significant wind resource areas as determined by the department of energy resources, in consultation with the Massachusetts Municipal Association and applicable regional planning authorities, shall establish a wind energy permitting board to conduct local permitting of a wind energy facility, within 30 days of receipt of a letter of intent from an applicant seeking to file an application under this chapter. In all other municipalities, the municipality may establish a wind energy permitting board, or the municipality’s planning board shall implement the provisions of this chapter.
Section 3. In the case of towns, the board of selectmen, and in the case of cities, the mayor, shall establish and appoint the wind energy permitting board, to be composed of either 3 or 5 members, at the discretion of the board of selectmen or mayor. A 3 member board shall consist of 1 representative from the conservation commission, 1 member from the zoning board of appeals, and 1 member from the planning board. A 5 member board shall consist of 2 members of the conservation commission, 1 member from the zoning board of appeals and 2 members from the planning board. The board of selectmen or mayor shall appoint 1 member of the board to be the chairman. If the board of selectmen or mayor determines that it is infeasible to establish a wind energy permitting board, the planning board shall serve as the wind energy permitting board. In such instances, the planning board shall take actions to maximize the opportunity for input from other municipal boards, and shall at a minimum ensure that the conservation commission and zoning board of appeals are provided with copies of the application and notices of all public hearings relating to the application.
Section 4. (a) A person who proposes to construct a wind energy facility with a capacity of at least 2 megawatts may elect to follow the procedure established by this chapter.
(b)A proposal to develop a wind energy facility that complies with the standards established under section 69V of chapter 164 shall be eligible for the fast-track permitting set forth in this section and section 69W of chapter 164.
(c)The project proponent shall file an application with the wind energy permitting board and the town or city clerk in lieu of separate applications to the local boards. The proponent shall also file the application with the town or city clerk of any abutting municipality. The application shall identify all provisions of local laws or regulations from which a waiver is sought. Within 30 days of receipt, the chairman of the wind energy permitting board, or the chairman’s designee, shall determine whether the application is complete and inform the proponent of that decision. If the application is incomplete, the proponent shall be allowed 30 days or such longer time as may be mutually agreed upon to complete the application. After the expiration of this period, the proponent may elect to go forward with the information provided, and the procedures and timelines in this section shall apply.
(d)The wind energy permitting board shall immediately notify each such local board, as applicable, of the filing of such application by sending a copy thereof to such local boards for their recommendations and shall, within 60 days of the board’s determination that an application is complete or the expiration of the additional information period described in subsection (c), and in compliance with the notice and publication provisions of section 11 of chapter 40A, hold a public hearing and a written public comment period of not less than 45 days on the application. The wind energy permitting board shall request the recommendations of the local boards as are deemed necessary or helpful in making its decision upon such application and shall have the same power to issue a permit or other approval as any local board or official who would otherwise act with respect to such application, including, but not limited, to the power to attach conditions to said permit or approval as are consistent with this section and all other laws and regulations.
(e)The wind energy permitting board, in making its decision on the application, shall apply all applicable local by-laws and ordinances, and take into consideration the recommendations of the local boards and shall have the authority to assess fees to retain consultants under the provisions of section 53G of chapter 44. The board shall have the authority to waive zoning and non-zoning requirements of the municipality’s local laws, regulations, policies or other regulatory requirements.
(f)The wind energy permitting board shall file with the city or town clerk a written decision, based upon a majority vote of the board, within 120 days from the filing of the application, unless the time period is extended by mutual agreement by the board and the applicant, and the agreement is filed with the city or town clerk prior to the expiration of the 120 day period. Failure to file a written decision or extension within the 120 day period shall result in a constructive approval of the application, unless a municipal board has made a timely referral of an application to a regional planning agency.
(g)A wind energy facility that does not comply with the standards established under section 69Vof chapter 164 shall be governed by subsections (a) through (f) of this section, except that the deadline for a decision shall be 180 days. If the applicant states that the project complies with the standards, but the wind energy permitting board determines through a vote or interim written decision within the 120 day period that the application does not comply with the standards, the deadline for decision shall be extended so that the deadline is 180 days from the filing of the application unless a municipal board has made a timely referral of an application to a regional planning agency.
(h)The wind energy permitting board is authorized to assess a community mitigation fee upon the applicant, which shall not exceed a cap established by the department of energy resources through regulations. The cap shall be set so as to ensure that community mitigation fees do not render the project economically non-viable.
(i)The applicant must offer the host municipality or its designee the option of entering into a legally enforceable purchase and sale agreement for not more than 10 per cent of the electricity generated on site for use by the host municipality or its designee; provided, however, that the wind energy permitting board may accept other forms of mitigation in lieu thereof, including, but not limited to, a purchase and sale agreement for electricity between the applicant and a municipality, a county, a regional planning agency or other regional governmental entity, a municipal electric cooperative or a municipal aggregator of energy. The host municipality is also authorized to enter into legally enforceable agreements with the applicant for additional mitigation measures.
(j)Notwithstanding any general or special law to the contrary, a municipality in which the wind energy permitting board has issued an approval under this chapter shall be deemed to have met the green community eligibility requirements set forth in subsections (2) and (3) of section 10(c) of chapter 25A, and if the municipality seeks a waiver of any of the other eligibility requirements under section 10(c) of chapter 25A, shall be entitled to a finding that the municipality has committed to alternative measures that advance the purposes of the green communities program as effectively as adherence to the requirements.
(k) If a project proponent proposes a single wind energy facility in more than 1 municipality, the wind energy permitting boards, or planning boards, if applicable, may hold joint hearings in 1 or more municipalities.
(l) In areas where regional planning agencies have regulatory authority, a local wind energy permitting board or planning board shall refer an application to the regional planning agency in accordance with the special act establishing the regional planning agency. Notwithstanding any general or special law to the contrary, prior to the regional planning agency’s final determination on the application, the local wind energy permitting board may review and hold public hearings and meetings on the application; provided, however, that no final determination shall be made until the regional planning agency has issued an approval or approval with conditions. Notwithstanding any general or special law to the contrary, in areas where regional planning agencies have regulatory authority, a wind energy permitting board and regional planning agency may hold joint hearings concerning a proposed facility so that both boards may review a project simultaneously. A wind energy permitting board shall file its written decision with the city or town clerk within 60 days of the date on which a regional planning agency issues its final decision of approval or approval with conditions. Failure of the wind energy permitting board to file a written decision or an agreed upon extension within the 60 day period shall result in a constructive approval of the application by the wind energy permitting board. If a regional planning agency denies a development of regional impact permit to a proposed wind energy facility, the wind energy permitting board shall not issue any permits for such a facility and no constructive approval shall result.
(m) (i) An interested party who is substantially and specifically aggrieved by a decision of the wind energy permitting board or a regional planning agency granting a permit or permit with conditions to the applicant, or constructively approving such a permit may appeal the decision to the energy facilities siting board and this appeal shall be the exclusive means of review of such decisions of a wind energy permitting board or a regional planning agency. The appeal shall be filed with the energy facilities siting board no later than 30 days after the wind energy permitting board’s decision is filed with the city or town clerk or rendered by a regional planning agency, and shall be governed by section 69W of chapter 164.