(Host) Recently, commentator and Vermont Law School professor Donald Kreis has been spending some time
staring at wind turbines. And all that staring, whether hypnotic or not,
has gotten him thinking about the law that applies to building those
turbines.
(Kreis) If you drive
Route 8 in Searsburg, south toward Massachusetts, you come across one of
the most breathtaking sights in Vermont. Atop an evergreen ridge is a
stand of tall and gently rotating wind turbines. On the winter’s day
when I happened upon them, they were stark and stunning.
Now,
for the first time since those turbines went on line in 1997, Vermont is
sprouting more of them. First Wind in Sheffield is just going on line.
Kingdom Community Wind in Lowell is under construction. Both projects
have towers that are nearly twice as tall as the ones in Searsburg. So,
I’ve been thinking about what Vermont law has to say about whether wind
turbines are beautiful or not.
Our law governing major land-use
decisions – Act 250 – contains ten criteria that regulators must
consider. Although Act 250 is not directly applicable to public
utilities, the Legislature has told the Public Service Board it must use
the same criteria.
Criterion 8 of Act 250 says that a project
may not have, quote, "an undue adverse effect on the scenic or natural
beauty of the area, aesthetics, historic sites, or rare or irreplaceable
natural areas."
What does this mean? The precedent-setting case
was decided in 1985 by the Vermont Environmental Board and is called "
In re Quechee Lakes Corporation ." What has come to be known as the
Quechee standard requires the decision-maker to consider two distinct
questions.
Question 1: Does the project have an adverse impact?
To answer this question, decision-makers must ponder whether the project
is compatible with the surrounding area, how visible it is, how suitable
its colors and materials are – that sort of thing.
And if the
project does have an adverse impact, the decision-maker moves on to
Question 2: Is the adverse impact "undue?" To answer that question, the
regulators must consider whether the project would violate some clearly
written community standard or whether the average person would find the
project shocking or offensive.
Well, I have a quarrel with
Quechee . Think of your favorite iconic and historic Vermont structure –
a barn, or a church, or maybe the oldest building on a college campus
somewhere. And consider that, had the Quechee standard for evaluating
aesthetic impacts applied to that structure, it could never have been
built. The first of them, after all, would have been incompatible with
its surroundings, and would surely have been shocking to average people.
Here is a modest proposal. What we need is an aesthetic impacts
standard that considers the possibility that a new structure will
actually have a positive impact on the aesthetics of its site.
If
it’s hard to imagine, it’s probably because most of what we build today
really is cheap and ugly. As a culture, we have lost our collective
sense of man-made beauty, however much we sense it in our historic
buildings.
I realize that not everyone in Vermont will find wind
turbines beautiful. But I wish Vermont’s land use law would at least
consider the possibility.