Cohocton Wind Watch: Certain questions must be asked, answered
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Friday, September 04, 2009

Certain questions must be asked, answered

BLOOMINGTON – There are four major issues with which landowners should be comfortable before agreeing to allow a wind farm project on their property.

The first two involve the land to be given over to the wind energy company, and exactly what the company will do on the land.

Third is the terms of the agreement, or contract, between the landowner and wind energy company.

Fourth is the rent the landowner will receive for the part of his property the wind farm occupies.

“Go over these documents adequately, and review them with your advisers so you can understand the things you are to get,” noted attorney Jerry Quick, legal adviser on the staff of the Illinois Farm Bureau in Bloomington. “Then you decide if you’re OK with that.”

On the first question, the landowner must decide if he is comfortable with the precise boundaries of the land the wind company will take over. The issue is that, within those precise boundaries, some of the landowner’s activities will be more curtailed than before the property was turned over to the wind company.

“Some farming and related activities will be more limited because of the presence of that development on that piece of property,” Quick said.

Secondly, the landowner should understand the wind energy company will take rights over the farmland — surface, air, and underground privileges — for things like transmission lines and for digging the base of the turbines.

“Because land has field tile and such on it, the landowner has to understand there could be damaging things like that,” Quick said. “Are you comfortable with it? Do you understand what they’re going to do?”

The third question — which, perhaps, looms as the biggest of the four — is the term, or length, of the agreement.

“If they find adequate wind after some testing, and they like the wind, the patterns, the quality, the reliability, and whatever standards they have, they’re going to want you to sign a fairly long-term agreement,” he said.

“The shortest agreement I’ve seen is 30 years, with two five-year extensions. The longest I’ve seen is 65 to 70 years.”

Thirty years would be one generation, and 70 years several generations.

Which means landowners must decide whether they are committing something they own to the wind farm, possibly well beyond their lifetime and, maybe, that of their children.

“Am I OK with that? What if, during that period of time, I could sell it to a developer who may want to build apartments or condos, or some big merchandising chain wants to buy it?" Quick said.

“Well, guess what. It’s committed to turbines. Those are the types of issues you get.”

County zoning ordinances do have setbacks. Some regulations space wind turbines a minimum of 11,050 feet from a residence.

Quick wonders, however, if there would be interest in building any structures near an 80-acre field housing two to three turbines.

“The turbines wouldn’t bother me because I’ve been around them, and they are quiet. But I don’t think most people would want to have an apartment close to them because of the visibility issue,” he said.

“ Arguably, there would be no legal impediment to building them there, but I can’t see it being readily done.”

On the fourth question, the landowner should understand the amount of rent he will receive for having wind turbines on his land. He should also know the form in which the payments will be made – whether by certified check or bank draft or whatever – and how frequently – like monthly, quarterly, weekly, every two years, five, or 10 years.

Also to be considered is whether the landowner wants an escalator clause to increase the income on a long-term agreement, and the formula for determining the amount of increase, like using the Dow Jones average or something similar.

“There’s a thousand ways to do it,” Quick said.

Backing away from a wind farm contract isn’t simple once it’s signed.

“I’ve never seen any kind of an easy out,” he noted.

“There are always possible outs in the law if the other party has materially breached the agreement. If the wind energy company promised to pay, and in two or three years you haven’t seen a nickel, they’re in breach of contract. That would arguably terminate the agreement.”

Which leaves the landowner with the wind turbines sitting on his property.

“Sometime, somebody may very well have to face the issue of a company becoming insolvent, or otherwise walking away and leaving the turbines behind. The landowner says, ‘Oh my God, how am I going to get rid of them, and who is going to pay for it?’ That’s something we still need to be working on,” Quick said.

“You can’t pull wind turbines over with a tractor or cut them down with a chain saw. We have no experience in Illinois, as far as I know, in deconstructing one of these things. I’m guessing dynamite is not the way, nor is putting a big cable on it and attempting to pull it over.”

Wind turbines are so tall and anchored in such a way it appears deconstruction would have to start at the top, with the first section being unbolted and lowered to the ground, then unbolting the next section and lowering it, and so on.

Deconstruction is another of those unanswered questions, like how much will it cost, who has the expertise for that kind of work, and who pays for damage to the land incurred by hauling the debris away.

In Bureau County, Big Sky Wind Farm spokesman Tim Polz told the county board in March the cost to decommission, or bring down, each Big Sky Wind turbine is about $19,860.

The cost includes removing the turbine, blades, tower, foundation, and any associated meteorological towers, underground cables and access roads.

Quick says he is neither pro- nor anti-wind farm.

“But, if I was the lawyer to a client, I’d say, ‘If you can overcome these four issues, then we can talk about the rest of the aspects of these complex contracts,’” he added.

“‘If you’ve got problems with any or all four issues, then you probably should not go any further with the wind energy company on the proposal.’”

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