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HomeMy WebLinkAboutMDGComRelAndComResPlanComments-v201/09/17 Comm. Rel. and Comp. Res. Proc. Comments 1 of 8 Marcus Gingerich Comments on the Town of Enfield Community Relations and Complaint Resolution Procedure 1. First, here are some general overarching comments: a) In general, the complaint resolution proposals in the plan are entirely unacceptable since it leaves everything to the discretion of the Sponsor and there are no time limits or enforcement penalties. In terms of enforcement, the Town's Code Enforcement Officer should take the lead, not the Sponsor. There needs to be some way to deal with emergencies and serious violations on an expedited basis. In the WFAC amended law proposal, provisions were included for emergency shutdowns in the event of imminent threat of bodily harm or significant property damage and there was provision for a 5 day response with a maximum of an additional 10 days to mitigate for serious violations. Something of this nature needs to be considered here. b) It is critical that this document establish the sound thresholds that the project will be held to since the Town law is inadequate. This is the residents’ only line of defense for sound problems. As a first argument, the town should insist that this plan should adopt the assessment guidelines found in the NYSDEC’s Assessing and Mitigating Noise Impacts. This is the same sound standard that BOWF references in its Noise Study. The difference, of course, is that in its study BOWF used an average for ambient sound instead of the night- time and day-time ambient sound levels and this document should state that the noise levels should be assessed using the daytime and nighttime ambient sound levels independently. It would be best if the plan specifically stated that there would be ambient sound levels taken for both daytime and nighttime before the project goes live that will be used for purposes of the sound standards under the plan since BOWF never shared those readings. As a fallback, this plan should flatly state that the sound levels cannot exceed 46 dBa at a residence which matches the maximum sound level BOWF states the turbine will hit. c) The proposed plan includes a complaint resolution process but the law does not require that every unresolved complaint go to mediation or arbitration – only that they act on complaints in a definite timeframe. Therefore, as long as BOWF responds to the complaint, there is no requirement to send it to a mediator or arbitrator; the Plan says that it “may” do so. Ultimately, BOWF might respond to every complaint by saying it complies with the permit and the Wind Law. There must be an independent method of resolving complaints if the parties cannot agree. d) The procedure for reduction in residential property value is essentially worthless. It requires a property owner to keep his/her property on the market with an agent without selling for at least 270 days, before any payment kicks in. The burden is on the property owner to prove that the sole reason that the selling price was so low was because of the proximity to a turbine, which is virtually impossible to do. If there is a dispute over payment, BOWF may, but is not required to, refer it to a “mutually acceptable mediator or arbitrator”. Furthermore, the plan does not say whether that possible mediation or arbitration is binding, so the whole thing might just be a lengthy waste of time and they still might not pay anything. Compensation is only available for those who own the property at the time the permit is issued and it is not available to any owner who has entered into a good neighbor agreement (i.e., it’s one or the other). While BOWF has eliminated the 80% limit, the "value" of the property is still based solely on the assessed value determined by the County. 01/09/17 Comm. Rel. and Comp. Res. Proc. Comments 2 of 8 Marcus Gingerich As long as the offer equals or exceeds the assessed value, there is have no claim under the plan no matter what an actual appraisal shows the property is worth. The agent’s commission and typical closing costs are also deducted from the amount “guaranteed” so the property owner is essentially paying double for those on top of his/her loss of value without any good justification. And finally, it only applies if the property owner ultimately sells his/her property. For those owners who are unable to find a buyer, there is no relief whatsoever. e) Finally, the “Complaint Resolution Procedure for the Town” is strange because it makes the Town negotiate on behalf of the residents. That is probably good for the residents, but the plan should make clear that it is not meant to supplant the Town’s authority to enforce the provisions of the permit or the Wind Law. In other words, if BOWF’s construction or operation violates a specific permit condition or a specific provision of the Law, the Town should make it clear (and the Plan should specify) that the Town retains all rights and authority to enforce violations in accordance with the Wind Law. Otherwise, BOWF might argue that the Town must arbitrate any Wind Law or permit violations in accordance with the Plan, rather than utilize the enforcement power the Town has under its Wind Law. 2. The following comments are specific to this particular version of this plan and to particular sections of this plan, some may be somewhat repetitious. When this plan is revised and the project details are finalized, then this plan needs to be reviewed again with that new information. 3. “Project Sponsor and the Town work cooperatively together to resolve any complaints that may arise.” While this is stated, based on the contents of this plan, most everything is  basically left up to the sponsor's discretion.  This is backwards.  The town should have final say.   Also, it should be that there are certain default standards such as time frame for responses,  etc., and then under extenuating circumstances the sponsor can request exceptions to the  default standards. 4. Community Relations “Many complaints relating to the development of the Project can be pro- actively avoided by communicating widely and often with the Town and the property owners.” Since to date, communication and transparency have been very poor, there is no reason to believe that will change unless required by the town. The town must set the requirements for these as it would seem apparent that the sponsor is not able to provide reasonable self-direction. 5. “If the community is made aware ahead of time of activities that could cause disruption such as construction noise,...” What about making the community aware of wind turbine noise and potential health effects? The sponsor's approach seems to be to ignore any reported/potential problems rather than being transparent about them. The plan should include communication about potential risks and adverse effects. While the Project Sponsor may not agree and it may not be in their own interest to agree, they should point out the reports of potential adverse effects and then the community residents can do their research and come to their own conclusions. This should be part of community education and outreach. 6. “1. Throughout the construction of the Project, a communication link with the Town will be maintained in order to maximize cooperation during the construction phase. “ Who is the liaison for the town and the sponsor? There needs to be a little more detail as to what that link is and what it actually involves. If it is the town board, is the sponsor going to hold up the project until the next town board meeting? This link needs to be agreeable to the town. 01/09/17 Comm. Rel. and Comp. Res. Proc. Comments 3 of 8 Marcus Gingerich 7. “2. Prior to the commencement of any construction,...” Since construction has already started as per BOWF statements, is it safe to assume this documentation is complete? This is not likely. Again, this document is incorrect as it currently stands. 8. “the Project Sponsor will coordinate with the Highway Superintendents to develop and provide the Town with a documented record of all existing major roads and infrastructure with which the project will interact.” What sort of documentation? For example, will it be 100% photographic documentation or will it be a general overall classification? This needs to be included in the plan. 9. “3. All equipment transportation schedules and transportation routes will be made public through the established communications link.” What is the established link? The details of established link need to be defined in this plan so that the town board can determine if it is acceptable. This should not be limited to a notice via the internet, e-mail or website, unless the project sponsor is willing to verify that all of the residents in the area have internet access. 10. “4. During construction, speed limits will be imposed and enforced on construction traffic.” What are the proposed speed limits? There are already speed limits. Are the proposed speed limits different than the existing speed limits? The exact speed limits need to be defined for the various construction traffic on the relevant roads. Until this detail is included, no final plan should be approved. 11. “5. The Project Sponsor shall comply with the conditions of the authorizing permits and conditions applying to construction and maintenance activities.” This is a very strange statement, doesn't this go without stating? Does this mean that if this statement is not made in this document that the sponsor may not necessarily comply with such conditions, etc.? Or is this the means by which the sponsor is folding into this plan all of the conditions as mentioned? This statement and its intent needs to be clarified. 12. “In order to resolve complaints in a prompt and effective manner, complaint procedures should be followed as closely as reasonably possible under the circumstances.” Who has the final say in what is 'reasonably possible'? This seems very open ended and needs to be clarified and defined a little better. So what if they are not followed. Are there consequences? The town needs to consider enforceable metrics and impose penalties for failure to comply. Can realistic noise limits (not the flawed town law limit) be incorporated into this plan? What about flicker limits (max. per day, max. per year)? 13. The plan includes no penalties for failure to address and resolve complaints in a timely manner. In general, the time limits are poorly defined or not defined at all. By default, the time limits need to be reasonable to the needs of the residents or those affected by the problems. If the wind project feels it needs more time, then it needs to make its case to the town board for extenuating circumstances. The town's purpose should be to protect the residents not the commercial entity. 14. Complaint Resolution Procedure for Residents and Property Owners, “Prior to construction, the Project Sponsor shall set up a toll-free number for use by the local residents of the community...” Again, there is a statement about something being done prior to construction. Unless there is a toll free number already available, then this statement can not be correct. This needs to be clarified at what point the toll free number will be set up. 15. “By calling the toll-free number;” Is this a number which is manned by a person (24/7) or is it 01/09/17 Comm. Rel. and Comp. Res. Proc. Comments 4 of 8 Marcus Gingerich simply voice mail? Is this the number to call in an emergency? Does the response clock start timing as soon as the call is made to the toll-free number? If it is voice-mail, there needs to be a time-limit within which the wind facilities returns the call to the complainant. 16. Wouldn't it also make sense to setup an e-mail address or other internet-based system of contacting the relevant agencies? This would be useful for most residents, but there would still have to be a method for residents who may not have internet access. 17. Unless its a very non-time-sensitive complaint, then it is difficult to imagine why anyone would utilize the slow means of a written complaint. 18. “3. In the event the Project Sponsor receives a telephone or written complaint, the Project Sponsor shall inform the Town Board in writing within 5 days of the details of such complaint.“ Is this within 5 calendar days or business days? If it is 5 business days, then that is essentially the same as 7 calendar days. Clarification is needed here. 19. ...”the Town Board shall inform the Project Sponsor in writing within 10 days of the details of such complaint.” Again, clarification is needed as to whether this is calendar or business days. 20. “ 5. A log will be kept by the Project Sponsor of the name and contact details of the complainant and the actions taken to resolve the complaint. The Project Sponsor shall make the log available to the Town Board for inspection upon request.” Is there a good reason not to make this log available on the wind facilities website and/or the town website? This might provide an incentive to the Project Sponsor to resolve complaints in a more timely fashion. Does the Project Sponsor have to reimburse the town for time spent by the town employees on dealing with complaints? In the spirit of the developer’s agreement, it would seem reasonable that this would apply. It would also seem reasonable that any expert testing, legal work, etc. that the town must continue to do to resolve these complaints should also be paid by the Project Sponsor. Ultimately, the sponsor should be responsible for actively tracking all complaints, actions, mitigations while copying the town on all communication/actions so that the town (likely Code Enforcement) can maintain a log/record of it all for historical/legal purposes and/or oversight. This really suggests that the Town needs to have an Operating Permit fee structure just to help defray the costs of monitoring the Project. It is does not appear that it will be minimal effort on the Town’s part to oversee a Project like this. 21. “6. Upon the Project Sponsor’s receipt of a complaint, either directly or through the Town Board the Project Sponsor shall promptly contact the complainant to investigate and resolve the issue to the satisfaction of both parties.” Promptly needs to be clarified or additionally a time limit needs to be specified with penalty(ies) for failure to comply. There should also be levels of urgency, e.g., if something is causing noise which makes difficult or impossible for a local resident to sleep, then the problem needs to be resolved in a matter of a day or so. Depriving a resident of sleep should not be acceptable. 22. “In the event that the complaint is not resolved to the satisfaction of the complainant, or that an agreed upon solution is not under development within thirty (30) days of receipt of the complaint,...” Thirty days to resolve an issue which may be making a residents home unlivable is not an acceptable time-frame. If that is going to be the time limit, then the Project Sponsor needs to be prepared to pay for the resident to live in another location. 23. “...the complainant may refer the matter to a mutually acceptable mediator or arbitrator.” It is apparently left to the complainant to find a mediator that is acceptable to the Project Sponsor. 01/09/17 Comm. Rel. and Comp. Res. Proc. Comments 5 of 8 Marcus Gingerich How much time and effort must the complainant expend to find an acceptable mediator? While I appreciate the Project Sponsor giving the option to the complainant, this seems like an undo burden on the complainant. Again, it seems very open ended. Would it be unreasonable to place a limit on the number of mediators that the Project Sponsor could find unacceptable? Are there time limits within which the Project Sponsor must respond to the suggestion of a mediator? Is the arbitration/mediation binding? Where are the ‘teeth’ in this process? The Project Sponsor can ultimately say that they’ve made a ‘reasonable effort to resolve all complaints’ and simply drop it. This needs to be fixed. If necessary, the town needs to have a final say in what the resolution should be. 24. These amount of time that it could require to resolve these issues appears to be unacceptably long, though its not even clear what the time limits are in most cases. In the meantime the non- participating resident must endure the problem and/or incur additional expenses to alleviate the problem such as living elsewhere or attempting to ameliorate the problem through their own means. If this is necessary, then the Project Sponsor should be required to reimburse the non- participating resident for those expenses. This plan should be changed to address this. 25. It would be very helpful to include a complete time-line with the requisite time limits for the various steps within which the resolution process must be completed. 26. “a. Sound:In the event of a complaint about potential turbine noise, the Project Sponsor shall conduct site-specific sound studies at those locations related to the complaint. If the turbine noise exceeds the existing sound standards for the Project based on the Acoustic Study and Acoustic Study Update,...” Will the Project Sponsor have one of their employees conduct the study or will it be performed by an independent consultant? The nature and standards of the sound studies should be specified. The choice of consultant should be determined by or in conjunction with input from the town. 27. What exactly are the existing sound standards? Since the project keeps changing, it is not clear what the sound standards are. Unless the exact project configuration is definitively known, then the standard needs to be included in this plan. It would seem that here would be an appropriate place to specify realistic standards with which the project is required to adhere. The town board needs to take the step of adding in those standards and relevant penalties for non-compliance. 28. “The Project Sponsor shall have reasonable discretion in proposing effective responses to satisfy the complainant as permitted under applicable laws and regulations.” While on its face 'reasonable discretion' seems okay, it seems to basically be saying that the Project Sponsor gets to decide. Again, there needs to be time limits and escalations in the plan. If the 'effective response' is not sufficient to resolve to problem, then the town should retain the authority to resolve the complaint up to and including shutting down one or more of the turbines until it is satisfied the problem is resolved. The resolution(s) should not require the complainant to make significant changes to their own property or life style to accommodate the problem, e.g., cover up all of their windows or refrain from going outside for portions of the day to avoid flicker, or avoid going outside or sleeping in their basement to ameliorate noise issues, or avoid portions of their property to alleviate risk of being hit by ice flying off a turbine. 29. There must be reasonable time limits with penalties in place in this plan for addressing noise issues and all complaints. 30. “b. Shadow Flicker: In the event of a complaint about turbine shadow flicker, the Project Sponsor shall conduct site-specific studies at those locations related to the complaint.” Since 01/09/17 Comm. Rel. and Comp. Res. Proc. Comments 6 of 8 Marcus Gingerich the project keeps changing, it is not clear what the prevailing shadow flicker standards are. It would be best to simply include the standards directly into this plan and indicate what steps will be taken to insure compliance and/or resolve complaints. If the standards are not set, then the Project Sponsor has nothing to be held to. 31. “c. Electromagnetic Interference: In the event of a complaint about turbine interference with microwave radio or television reception, the Project Sponsor shall conduct site-specific and spectrum specific studies at such locations.” There is no designation as to who will conduct the studies or exactly what those studies entail. If it is to be done by Project Sponsor employee(s), then the employee should have the requisite training and the proper equipment. 32. “...or the securing of electronic interference easements from the complainant.” The last resort appears to be to buy an easement from the complainant. If the complainant does not wish to give up his/her rights, there needs to be provisions for a full and complete resolution. This plan needs to include time limits (and penalties for failure to meet) for the various steps to reach final resolution. The town needs to maintain full and final authority to enforce these time-limits and not leave it up to the discretion of the Project Sponsor. The town needs to protect its residents' interests. The time limits should be reasonable t to the resident by default. If necessary, the Project Sponsor can see approval from the town board for extension of time limits under extenuating circumstances. The onus should be upon the Project Sponsor to resolve problems with a due haste rather than letting it languish at the expense of the resident(s). 33. There is no mention of dealing with ‘stray voltage’ or induced EMF issues. With 34kV collection lines running underground, it is certainly conceivable that there could be small unnoticed leakage and/or inductive coupling to the surroundings and eventually into properties and homes. What are the means of addressing something like this and/or some other unforeseen issue(s) that might arise from the installation of the Project? 34. The default for time limits should be short (in the interest of the residents), but allow the option for extension by the town board for extenuating circumstances. 35. “In the event of complaints relating specifically to a reduction in residential property value…” The addition of this section is a great improvement; however, it is deficient. What if a resident is suffering from adverse health effects from the wind facilities and must move as soon as possible? What recourse do they have? What about the extra expenses incurred such as the cost of moving or the cost of renting another home until their property sells or the 270 days on the market is up? What happens if the property simply does not sell? Will the Project Sponsor purchase the property? 36. The means of determining the value of the property seems deficient. While the assessed value of the property is supposed to be market value, the reassessment often lags. This value should be determined by an independent appraisal(s). 37. “a. If the complainant’s property…for (270) days consecutively,” The 270 day time limit is simply too long, particularly if the resident is experiencing health related issues from the turbines. This is apparently a controversial issue, but it must be dealt with. 38. “d. ...and reasonable proof the purchaser would not pay the assessed price because of the property’s proximity to a wind turbine.” How does one go about establishing reasonable proof? This is an unacceptably vague criteria which allows the project sponsor to simply say, “your 01/09/17 Comm. Rel. and Comp. Res. Proc. Comments 7 of 8 Marcus Gingerich proof is not reasonable, we won’t pay.” Is reasonable proof also required to show that he reason a property simply will not sell at all is because of its proximity to a wind turbine? 39. “f. If there is a dispute…refer the matter to a mutually acceptable mediator or arbitrator.” Is this binding? This just seems like another step in a long drawn out process with no definitive end. There must be time-limits. 40. If someone must leave their property because of the installation and operation of the wind facilities, then the project sponsor should be required to cover costs of selling, moving, and purchasing a new property of equal value. For example, the project sponsor would be responsible for 120% of the appraised value of the property in order cover the extra costs of the resident(s) who has to relocate away from the wind farm. If the property quickly sells for 90% of appraised value, then the project sponsor would have to pay the resident the other 30% of appraised value. 41. Complaint Resolution for the Town, “1. In the event the Town submits a complaint to the Project Sponsor on behalf of the residents and property owners of the Town, the Project Sponsor shall promptly conduct any appropriate studies...” Again, there is no time limit actually specified, it needs to be specified and it needs to be reasonable in the favor of the residents and/or town. Who determines the appropriate study? The town should retain authority over and input into the independent consultant(s), oversight in how the tests are conducted and final authority on what studies are appropriate. The town can give the Project Sponsor leeway, but should retain final say. 42. “2. If a problem is found to exist, the Project Sponsor and Town will engage in discussions to develop and propose actions to resolve the problem.” There is no time limit on these discussions. This approach seems potentially unreasonably long depending on the particular complaint. In the meantime, a resident may be suffering from the problem. There must be time limits and penalties for failure to meet those time limits unless it is due to the town's or resident's actions or inaction. 43. “5. In the event that an agreed upon solution is not under development within thirty (30) days of receipt of the complaint, ...” This needs to be clarified as calendar days or business days. This also seems like a very long time depending upon the nature of the complaint. A resident could potentially have to suffer a lot for a long time until this is resolved. 44. “The Project Sponsor shall make every reasonable effort to resolve all complaints of the Town.” This is not a plan that is acceptable. The town must require the project sponsor to resolve all complaints. This must not be left to the discretion of the Project Sponsor. There needs to be time-limits, escalation, and penalties for failure to comply. 45. “Unless otherwise specified herein, any notification required by the complaint procedures described herein shall be made in writing and delivered or mailed by first class mail to the Town Board or the Project Sponsor at the following locations:...” In the age of the internet, it seems that a more expeditious method of notification could be made electronically, particularly in cases where the complaint is in regard to a health or safety issue. There is the option of the toll-free number to call, but that needs to have more detail as to the response time(s). 46. “made in writing and delivered or mailed by first class mail to the Town Board or the Project Sponsor at the following locations:... Black Oak Wind Farm, LLC 01/09/17 Comm. Rel. and Comp. Res. Proc. Comments 8 of 8 Marcus Gingerich Attn: Marguerite Wells, Project Manager 863 Hayts Road Ithaca, New York 14850” Is this still accurate? It seems quite clear that the project will be immediately sold to BayWa, if at all possible. So, what will the contact location be at that point? According to BayWa, if they do take over, the current management will no longer be in place, so it seems reasonable for the town to ask for such information before finalizing this plan. 47. There is no mention of provisions for other complaints. There should be an overarching complaint resolution procedure with default time-limits, escalation and penalties. This is because one can never anticipate all of the potential problems of such a project. 48. If this plan is meant to cover decommissioning, is the town prepared to cover similar activities if a town-directed decommissioning project must be undertaken? Have funds been allocated in the decommissioning bond to cover included activities and expenses?