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Increasingly, it seems, municipalities are dealing with permit requests for wind turbines, both for residential and industrial/commercial use. Like any other kind of development, wind energy has its detractors, with shadow flicker being one of the biggest complaints (noise is a close second).

To get a sense of what some wind turbine/shadow flicker opponents are asserting, there are some compelling videos presented here.

As wind turbine requests come up more frequently, and in order to address legitimate concerns of residents, cities and towns are starting to get proactive about shadow flicker and what will (and will not) be tolerated.

Take the Town of Kingston, Massachusetts, for example. According to a recent article, in April the town voted to approve a two-year moratorium (lasting until mid-April 2016) that will prevent installation of any industrial-sized wind turbines. Going forward, any proponent of such a project will have to show that the shadow flicker will not affect nearby residences. The Town is now exploring the best options for drafting a workable flicker regulation, with the goal to provide advance notice to wind turbine developers once the moratorium is over. Ideally, the drafter(s) will seek guidance from existing flicker regulations in other communities, like those found in Bourne, which has already addressed this issue. Shelburne also appears poised to address flicker to some degree.

In Bourne, shadow flicker is regulated by the Board of Health. The Wind Energy Conversion System (WECS) regulations were implemented in 2011, and later amended in 2012. The performance standards of the WECS regulations provide that, with respect to shadow flicker,

Shadow flicker shall not extend beyond the lot lines of the property upon which the WECS is located. A variance may be obtained to allow shadow flicker to extend beyond the lot lines as provided for in the section on Variances. A shadow flicker of 3 to 60 hertz shall never be allowed. Shadow flicker shall not create a nuisance.

Failure to comply with the WECS regulations could result in enforcement action by the board of health, including injunctive relief and/or fines.

Sometimes the problems associated with shadow flicker become apparent only after the installation of the wind turbine. This is what has happened with one turbine in Scituate where the amount of flicker being created is greater than what was originally predicted, much to the demise of some nearby residents. The town and the developer have looked into some mitigation efforts, but it is unclear whether the flicker will ever be fully resolved.

The need for more studies and clearer regulations-in advance of constructing these wind turbines-seems to make the most sense, if only so that residents do not have to endure the burden of poor planning and foresight on the part of the town and/or the developer after the fact. For this reason, it will be interesting to see how Kingston addresses this issue with its forthcoming shadow flicker regulations, and to see if other towns and cities eventually follow suit too.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2014 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

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