SB99 By Senators Butler and Reed RFD Veterans and Military Affairs Rd 1 04-FEB-20

SYNOPSIS: Under existing military land use planning law, a county or a municipality whose territorial boundaries are within two miles of any portion of a military installation is required to give notice to the military installation and an opportunity for review of any local impact. The existing law does not address tall structures and wind energy facilities that could have an adverse impact on military aviation and other operations.

This bill would revise these notification and review requirements to require a county or municipality to give an affected military installation notice and an opportunity for review of any proposed tall structure or wind energy facility for potential impacts prior to approving the tall structure or wind energy facility.

A BILL TO BE ENTITLED AN ACT

To amend Sections 11-106-3 and 11-106-4, Code of Alabama 1975, and to add Section 11-106-6 to the Code of Alabama 1975, relating to military land use planning; to further define terms; to require certain reviews to be conducted for any tall structure or wind energy facility regardless of distance from a military installation; to require adequate notice to the military installation of applications to construct tall structures and wind energy facilities to ensure the military installation is able to resolve adverse impacts prior to a local government approving a tall structure or wind energy facility.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:Section 1. Sections 11-106-3 and 11-106-4, Code of Alabama 1975, are amended to read as follows:

§11-106-3.

"As used in this chapter, the following words shall have the following meanings:

"(1) ADVERSE IMPACT ON MILITARY OPERATIONS AND READINESS. The same meaning as provided for that term in Section 183a(h) of Title 10 of the United States Code.

"(2) DEPARTMENT OF DEFENSE SITING CLEARINGHOUSE. The Military Aviation and Installation Assurance Siting Clearinghouse of the Department of Defense, as established by section 183a of Title 10 of the United States Code.

"(1)(3) LOCAL GOVERNMENT. Any county or municipality.

"(2)(4) LOCAL IMPACT ISSUE. Any adoption or amendment by a local government of a proposed zoning plan, comprehensive master plan, or land development regulations that, if approved, may or will significantly affect any area or airspace that is within two miles of a military installation.

"(3)(5) MILITARY INSTALLATION. Any base, camp, post, station, airfield, yard, center, or any other land area under the jurisdiction of the United States Department of Defense, including any leased facility, the total acreage of which installation is in excess of 500 acres. The term military installation does not include any facility used primarily for civil works, river projects, or flood control projects.

"(6) NOTICE OF PRESUMED RISK. The notice provided by the Department of Defense Siting Clearinghouse to an owner of an energy facility pursuant to Section 183a(c)(2) of Title 10 of the United States Code.

"(7) TALL STRUCTURE. Any building, structure, or unit within a multiunit building with a vertical height of more than 200 feet measured from the top of the foundation of the building, structure, or unit and the uppermost point of the building, structure, or unit. The term does not include: wind energy facilities, electrical transmission towers, slender structures, or minor vertical projections of a parent building, including, but not limited to, chimneys, flagpoles, flues, spires, steeples, belfries, cupolas, antennas, poles, lines, or wires, except that no such structure or vertical projection may project more than 20 vertical feet above the parent building.

"(8) WIND ENERGY FACILITY. Facilities for the generation of electricity by wind power.

§11-106-4.

"(a) Each local government whose territorial boundaries are within two miles of all or any portion of a military installation shall provide written notice to the military installation's commanding officer and the flying mission commanding officer if applicable, or their designees, of any local impact issue.

"(b) Prior to approving any proposed tall structure or wind energy facility, the local government shall follow the requirements of Section 11-106-6. The requirements of Section 11-106-6 shall apply regardless of the distance of the tall structure or wind energy facility from any military installation and regardless of whether the local government’s territorial boundaries are within two miles of all or any portion of a military installation."

Section 2. Section 11-106-6 is added to the Code of Alabama 1975, to read as follows:

§11-106-6.

(a) The construction or operation of any tall structure or wind energy facility in this state shall not encroach upon or otherwise have an adverse impact on military operations and readiness of any military installation or branch of military.

(b) A local government, prior to approving an application for the construction of a tall structure shall require the applicant to file an application with the Federal Aviation Administration under Section 44718 of Title 49 of the United States Code, and provide the local government either of the following:

(1) A written "Determination of No Hazard to Air Navigation" issued by the Federal Aviation Administration pursuant to Subpart D of Part 77 of Title 14 of the Code of Federal Regulations.

(2) In coordination with any affected military installation and the state Military Department, a written determination resolving any adverse impact to military operations identified during the aeronautics study conducted pursuant to Subpart D of Part 77 of Title 14 of the Code of Federal Regulations.

(c) A local government considering an application for the construction of a wind energy facility, shall require the applicant provide the following at least 270 days prior to planned construction:

(1) Documentation that the owner or applicant has transmitted notice relating to the construction of the wind energy facility to the Department of Defense Siting Clearinghouse, the state Military Department, and the state Department of Transportation.

(2) A map showing the specific location and tower hub height with rotor diameter for each proposed wind turbine.

(3) Documentation that the facility owner has either initiated an informal review with the Department of Defense Siting Clearinghouse under Section 211.7 of Title 32 of the Code of Federal Regulations or filed for a formal review with the Secretary of Transportation and the Federal Aviation Administration pursuant to Section 44718 of Title 49 of the United States Code.

(d) A local government may not approve an application for the construction of a wind energy facility prior to receiving documentation of one of the following:

(1) A completed Department of Defense Siting Clearinghouse informal review resulting in a determination of no presumed risk.

(2) A mitigation agreement between the owner or applicant and the Department of Defense Siting Clearinghouse resolving any notice of presumed risk.

(3) A written "Determination of No Hazard to Air Navigation" issued by the Federal Aviation Administration pursuant to Subpart D of Part 77 of Title 14 of the Code of Federal Regulations.

(e) If any dispute arises between a local government and an applicant or military installation relating to the approval of any tall structure or wind energy facility, the local government shall provide notice to the Governor or the Governor’s designee to facilitate resolution of the dispute.

Section 3. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

Military

Planning and Zoning

Zoning

Telecommunications

Wind Energy

Utilities

Counties

Municipalities

Code Added

Code Amended