This is a re-posting of a post from May 1,2012
I am re-posting this because I have been getting an inordinate amount of traffic to this post.
It is my understanding that by New York State Law , a good neighbor agreement cannot be used to subvert a communities zoning law. If these agreements were to be honored the land owner would essentially be writing their own land use variance.
Below are excerpts from a BP good neighbor agreement also known as an easement.
Additionally at the end of this post, I have added a link to a BP good neighbor agreement contract.
Although Grantee (BP)adheres to generally recognized wind industry practices and applies commercially reasonable measures to minimize effects of its wind farm activities on neighboring properties, will acknowledges the grantee's wind power facilities may still impact the owner's property. Owner has agreed to grant certain rights and easements to accommodate any impact that Grantee's (BP’s) wind power facilities they have on owners property.
This clause is an acknowledgement disclosure the landowner acknowledges that they are aware that there are impacts and they are giving informed consent.Wind farm operations easement.Owner grants Grantee (BP) an exclusive easement in, on, over, across and through owners property, for the purpose of allowing any audio, visual, view, light, noise, vibration, shadow flicker, air turbulence, wake, ice, electromagnetic, electric and radio interference, ice throw or other, whether created hazards, or other effect of any kind whatsoever resulting, directly or indirectly from any construction, development, repair, maintenance, replacement, or operation of grantee's wind power facilities or other of grantee's activities on wind farm.
This clause allows broad unlimited surface and subsurface property uses.Noise waiver.Owner grants Grantee and easement for the right and privileges to generate and maintain audible noise levels in excess of 50 dBA(L 90) on and above the noise easement property at any times of the day or night(" noise easement"). The "noise easement property" shall mean owners property, except those portions within a two hundred (200) – foot radius circle (or lesser distance with owner's prior consent). Centered on the inside of each presently existing, occupied residents on the owner's property. If noise levels produced by the turbines exceed 50 dBA (L90), as measured within (200) feet (or lesser agreed distance) from inside of a presently existing, occupied residents on owners property by an independent, professional applying commonly accepted measurement instruments and standards, grantee shall reduce the noise levels produced by the turbines to 50 dBA (L 90) at two hundred (200) feet (or lesser agreed distance) from the residence. Said noise easement shall further permit the grantee to generate and maintain audible noise levels, emitting from grantee's wind turbines installed on property adjacent to owner’s property, up to 55 dBA at the property boundaries.
This noise waiver allows Grantee (BP) to maintain audible noise levels day and night exceeding 50 dBA (L90). Noise may affect wildlife, as well as other landowners and the quiet enjoyment of the Owner’s Property.)Owner understands and acknowledges that by ordinance, and otherwise, Jefferson County and other governmental entities may now and in the future require, unless waived, certain setbacks of wind turbine generators from property boundaries based on their noise levels. Owner for itself and it's successors and assigns, as owner of the property, waives any and all claims that it may now or hereafter have against Grantee or against Jefferson County, New York, in connection with noise levels that may be generated on owners property by the wind farm.
Setback waiver Grantee(BP) or any affiliate of Grantee (BP) owns, leases or holds an easement in other land concerning or contiguous to the owner's property and has installed or constructed or desires to install construct wind power facilities such adjacent land at or near, the boundary with owners property, owner hereby waives any and all setbacks and setback requirements, whether now or hereafter imposed by applicable law, or by any person or entity, including, without limitation, any setback requirements described in current or future zoning ordinances. In Jefferson County, New York, or in any governmental entitlement or permit heretofore or hereafter issued to Grantee (BP) or such affiliate provided, however, Grantee (BP) agrees that no generating unit shall be located closer than 500 feet from owner’s property line or 1200 feet from any occupied residence on the property, such measurements to be calculated from the center point- of the generating unit.
Upon Grantee (BP) or an affiliates request, owner shall at no additional cost to Grantee (BP)execute(and if appropriate cause to be acknowledged) any setback waiver, setback elimination or other document or instrument reasonably requested by Grantee(BP), its members, or lenders, Jefferson County real estate of New York or any applicable governmental authorities in connection there were, – return the same for any applicable governmental authorities in connection there with – return the same thereto within 10 days after such request, and – provide such public support as Grantee(BP) may reasonably request in connection with any related zoning variance or other government applications by grantee(BP).This clause seemingly overrides without limitation, any setback requirements described in current or future zoning ordinances of Jefferson County.
Additionally the Owner agrees to execute a setback waiver as requested by BP or their lenders. and the owner will publicly support BP's request.
Link here to read entire Good Neighbor agreement