August 12, 2016                                                                                       www.nacone.org   NACO E-Line Archive  

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NACO Associate and Sustaining Members enable NACO to enhance its continuing education programs for county officials across the state. Visit NACO's complete associate and sustaining membership list here.

TopIn This Issue
windenergyWind Energy and Zoning
In recent years, developers have installed renewable energy projects across the country.  Nebraska's vast landscape provides developers numerous opportunities for Commercial and Utility Grade Wind Energy Conversion Systems ("CWECS").  To accommodate the state's growing wind industry, local regulators may need to understand and apply zoning regulations to CWECS.  When regulating a CWECS, primary areas of interest are setback requirements, noise limits, and a phenomenon known as "shadow flicker."

Applicable law allows zoning regulations that are necessary to protect the public health, safety and welfare.  A regulation that goes beyond that purpose may amount to an unconstitutional taking of private property.  At a minimum, an overzealous or unnecessarily burdensome regulation undermines the economic opportunities for landowners and the economic development and property tax relief opportunities for local communities.

CWECS regulations differ at times for participating and nonparticipating landowners, with increased emphasis on nonparticipants.  Participating land is property that contains a turbine or easement connected to the CWECS, and has a financial stake in the project.  Nonparticipating property has no involvement, and particularly no financial stake.  Wind regulations may offer extra protection to these nonparticipants because while they have no share in the financial benefits of the CWECS, due to proximity, they may share in some of the impacts.

A setback requirement refers to the physical distance that a CWECS must be from a dwelling, property line, or public road.  These are typically measured from a wind turbine base.  While most county zoning regulations require some degree of setback, these regulations usually allow participants and nonparticipants to wave these setback requirements.  Most Nebraska regulations require a CWECS to be at least 1,000 feet away from the nearest occupied participant dwelling.  A CWECS must also generally be a quarter-mile or more away from occupied nonparticipant dwellings and one-half to two times the diameter of the wind turbine rotor from nonparticipating property lines and roads.

Noise restrictions are another common regulation.  The typical zoning standard for noise restrictions ranges from 50 to 60 A-weighted decibels at an occupied dwelling unit.  However, some counties have begun considering lower levels for nonparticipants.

Shadow flicker is a strobe effect caused by sunlight reflecting off turbine blades. Regulations often restrict the amount of shadow flicker a CWECS can create.  In addition, CWECS permit applications generally require developers to produce a study detailing the amount of shadow flicker the proposed CWECS will produce.  Typically, regulations require that shadow flicker may not fall on an occupied, nonparticipant dwelling for more than sixty minutes per day or thirty hours per year.  

As the wind power industry expands in Nebraska, zoning regulations will become increasingly vital to protecting the continued growth of the industry, while accommodating nonparticipants and making good neighbors.  Setback, noise, and shadow flicker regulations are some of the more notable aspects of typical wind zoning regulations.  With any new CWECS, local officials will need to gather information and feedback from all sides of the project to ensure the protection of all interested parties and compliance with applicable regulations.

To network, learn and be inspired by quality speakers and timely presentations on renewable energy, over 500 people are expected to attend the 9th Annual Nebraska Wind and Solar Conference in Lincoln on November 7-8, 2016. Participants are encouraged to take advantage of the early registration discounts and industry related companies should also consider exhibiting at or sponsoring the event.  To obtain more detailed information click on the Nebraska Wind and Solar Conference logo in the left column or click here.

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legalineLegal Line

Editor's Note: Legal Line is a feature that will periodically appear in NACO E-Line. This edition has been prepared by Elaine Menzel of the NACO legal staff. Legal Line is not intended to serve as legal advice. Rather, it is published to alert readers to court decisions and legal or advisory matters important to county government. For a specific opinion on how the information contained in this article or that which will be discussed in future issues relates to your county, consult your county attorney or personal counsel.

Political Activity Employment Case Decided by the U.S. Supreme Court

In a 6-2 U.S. Supreme Court case, the Court considered an employee's claim about whether the official's factual mistake made a critical legal difference when a government official demoted an employee because the official incorrectly believed that the employee had supported a particular candidate for office.  See Heffernan v. City of Paterson, 578 U.S. --- (2016).  The Court's further explanatory question was, did his demotion deprive him of a right secured by the Constitution, although the employee had not engaged in protected political activity.  See 42 U.S.C. 1983.  The Court held it did.

The First Amendment generally prohibits government officials from dismissing or demoting an employee because of his or her engagement in constitutionally protected activity.  As stated by the Court, "The basic constitutional requirement reflects the First Amendment's hostility to government action that "prescribe[s] what shall be orthodox in politics." The exceptions take account of "practical realities" such as the need for "efficiency" and "effective[ness]" in government service."

49 U.S.C. 1983 authorizes a lawsuit by a person "depriv[ed]" of a "right secured by the Constitution."  However, that "right" is not specifically defined.  The Court questions whether it is a right that primarily focuses upon the employee's actual activity or a right that primarily focuses on the supervisor's motive pertaining to what the supervisor believes the activity to be.  It is opined that the text of the statute does not say nor does court precedent.

Ultimately, the Court concluded, the government's reason for demoting the employee is what counted in this case.  The majority of the Court agreed that the employee had a First Amendment claim even though he engaged in no political activity protected by the First Amendment because the employer's motive was to retaliate against the employee for political activity.

For the full text of this case, click here 
 
Countygovernementdaycd County Government Day PowerPoint
The PowerPoint presentation is available electronically at no charge (sent via e-mail) for use by counties during their annual County Government Day. The PowerPoint provides a comprehensive look at county government functions in the State of Nebraska and can be customized by each county. CD's are also available for $10.00 each to cover processing, shipping and handling. To request the County Government Day PowerPoint electronically, please e-mail your request to larrydix@nacone.org. The CD order form is available here.

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NACO's 2015 Directory of County Officials is a valuable resource that not only gives you names, addresses, phone numbers, fax numbers and e-mail addresses of every county official in the state, but includes a listing of county board meeting days, NACO districts, county seats, NACO officers and directors, affiliate officers and NACO staff.

As of  January 2016, NACO will no longer print the hard copy of the directory and send one to each county.  The directory has been made a part of the NACO website through a clickable and searchable icon and will be updated as corrections are submitted. The directory on the website is downloadable for a printed copy and it can also be transferred electronically to office computers and devices with memory storage such as smartphones and ipads.

For a copy of the latest 2015 directory, click here for the order form.

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County_Board_Handbook_2012 2015 County Board  Handbook and Revisions
The 2015 County Board Handbook and related revisions are now available! The cost for a current handbook, including legislative information from the 2015 session, is $80.00/book plus $18.00 shipping and handling per book. The 2015 Supplement to the County Board Handbook is available for $25.00 plus $5.00 shipping and handling. The order form is available on the NACO website. For questions, contact Elaine Menzel by email or call her at (402) 434-5660 ext. 225.

News From NACo

NACo members adopted more than 100 policy resolutions at their Annual Business Meeting. The new resolutions adopted for the first time at the 2016 business meeting can be reviewed here.

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Leadership Development Series: The Pitfalls of Decision Making

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