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ClientAlert

Boston Proposes Wind Energy Zoning

By Jean C. Bowe and Matthew J. Kiefer
September 2008
People: Jean C. Bowe
PDF

Responding to an increase in wind energy proposals, which are currently not addressed by the Boston Zoning Code, the Boston Redevelopment Authority (BRA) has proposed a new zoning article to regulate the design, construction and operation of wind turbines and other wind energy facilities.

The proposed article would establish approval requirements for three types of wind energy facilities:

Building-Integrated Wind Energy Facilities: Facilities of any capacity permanently mounted to a building would require a Conditional Use Permit from the Board of Appeal in most industrial, commercial, manufacturing, waterfront, institutional, economic development and multifamily residential subdistricts and would require a variance in all other subdistricts. Such facilities could have a maximum height of no more than 25% of the height of the building on which they are constructed.

Small Wind Energy Facilities: Free-standing facilities with a capacity less than 100kW/0.1MW would require a Conditional Use Permit in several industrial, manufacturing, waterfront, institutional and economic development subdistricts, and would otherwise require a variance. Such facilities could have a maximum height of 250 feet and would be required to be set back from the property line by an amount equal to their height.

Large Wind Energy Facilities: Free-standing facilities with a capacity more than 100kW/0.1MW would require a Conditional Use Permit in only a few industrial, manufacturing, institutional and waterfront subdistricts and would otherwise require a variance. Such facilities could have a maximum height of 500 feet and would be required to be set back from the property line by an amount equal to 1.2 times their height.

Conditional Use Permits for wind facilities would be valid for 25 years, at which time they would need to be renewed by the Board of Appeal. Additionally, facilities would need to be maintained by the owner or removed within 150 days of ceasing operation. Any facility not operating for more than one year without City of Boston Inspectional Services Department approval will be deemed abandoned and must be removed.

Wind facilities included in institutional projects could be approved in an Institutional Master Plan as an alternative to seeking conventional zoning relief from the Board of Appeal. The proposed article would require all wind energy facilities to undergo design review under the procedures contained in Article 80 for Small Project Review, or, if the overall project requires it, Article 80 Large Project Review. During design review, the BRA would evaluate the facility’s security and access restrictions, shadow, flicker, noise, soil erosion and habitat impacts, appearance, lighting and signage.

The BRA has scheduled a public meeting on September 24, 2008 at 6:30 p.m. at Boston City Hall, Room 900 and will accept community comments on the proposed zoning article.

Jean Bowe, an associate, and Matthew Kiefer, a Director, are members of the Goulston & Storrs real estate group. They focus their practices on complex urban development projects and can be contacted as follows:

Jean Bowe
617-574-7918
jbowe@goulstonstorrs.com

Matthew J. Kiefer
617-574-6597
mkiefer@goulstonstorrs.com

This client advisory should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer concerning your situation and any specific legal questions you may have.

Pursuant to IRS Circular 230, please be advised that, to the extent this communication (including any attachments) contains any federal tax advice, it is not intended to be, was not written to be and cannot be used by any taxpayer for the purpose of (i) avoiding penalties under U.S. federal tax law or (ii) promoting, marketing or recommending to another taxpayer any transaction or matter addressed herein.

© 2008 Goulston & Storrs – A Professional Corporation All Rights Reserved

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