A recently enacted piece of legislation regarding solar and wind power signals a shift in landowner rights when it comes to the location of these energy developments. 

Senate Bill 52 gives county commissioners new authority to decide on which areas within their jurisdiction solar and wind development can take place. Commissioners also have authority to ban development in certain areas entirely. There is a window for those opposed to the commissioners’ decision to intervene with a petition, but it is a slim 30-day time frame. 

“That’s a pretty new and unprecedented government restriction on land use and something that we’re concerned about,” said Brandon Kern, senior director of state and national policy for Ohio Farm Bureau. “If you look at the process of zoning, the decisions that are made to implement zoning in an unincorporated area in a county are much more thorough. Voters have to give government permission to go down that road, not just government automatically having the ability to place those restrictions on land use in unincorporated areas. So we’re concerned about that piece of it and the precedent that it sets.”  

The legislation, which takes effect in October, has a significant impact on these projects before they ever reach the Ohio Power Siting Board process, which is the first public review of a project that has generally taken place. Before construction can begin on any major utility facility or economically significant wind farm within the state of Ohio, a certificate of environmental compatibility and public need must be obtained from the OPSB. But often, the public and even the affected landowner may not understand the scope of a project until it is well into the OPSB process. 

While Ohio Farm Bureau took a position against the legislation based on the precedent it set, Kern said there were provisions of SB 52 which the policy set by Farm Bureau members clearly supported, including the need for transparency about the energy projects. 

“We certainly understand the concern about transparency, having an understanding for community members and for the landowners involved regarding, quite frankly, the scale and scope of these projects,” he said. Farm Bureau had proposed a measured approach to balancing landowner rights and transparency that did not make it into the final version of the bill. 

SB 52 will have an immediate impact on projects around the state, according to Ohio Farm Bureau Policy Counsel Leah Curtis. If a wind project application has already been certified complete by OPSB or a solar project has a completed system impact study from PJM Interconnection that has been paid for, those will be allowed to move forward.

“Anything that has reached those stages will advance the way it always has with the power siting board,” Curtis said. “Local residents who may be interested and local governments can intervene in those proceedings, just as they always have been able to. However, if you are involved with (wind or solar) developers and have not reached that stage, it is possible that (SB 52) will apply.”

Online extra

In this Legal with Leah, Ohio Farm Bureau’s Policy Counsel, Leah Curtis, talks about the consequences of the legislation and what those currently in a lease or thinking about a lease need to know.