2013 -- S 0815

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LC02169

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

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A N A C T

RELATING TO AGRICULTURE AND FORESTRY -- RENEWABLE ENERGY FACILITIES

     Introduced By: Senator Louis P. DiPalma

     Date Introduced: April 04, 2013

     Referred To: Senate Environment & Agriculture

It is enacted by the General Assembly as follows:

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     SECTION 1. Title 2 of the General Laws entitled "AGRICULTURE AND FORESTRY"

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is hereby amended by adding thereto the following chapter:

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     CHAPTER 23.3

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FARM CONSERVATION AND RENEWABLE ENERGY

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     2-23.3-1. Short title. -- This act shall be known and may be cited as the "Farm

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Conservation and Renewable Energy Act of 2013."

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     2-23.3-2. Legislative findings and purposes. -- (a) Findings. The general assembly finds

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and declares that:

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     (1) Rhode Island agriculture has survived and flourished because it has innovatively

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pursued revenue sources that are not typically accounted for in measurements of farm income;

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     (2) Renewable energy facilities have the potential of reducing the operating costs of

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farms and of providing additional revenue to farms, which can be critical to maintaining

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economically viable agricultural operations;

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     (3) Rhode Island has established preserving farmland and strengthening the viability of

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farming in the state as important public purposes, necessary to health and welfare of the people of

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the state; and

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     (4) Rhode Island has established ambitious goals for securing energy from renewable

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resources, including obtaining sixteen percent (16%) of the electricity consumed in the state from

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renewable resources by 2019, and created programs for distributed generation standard contracts

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(chapter 39-26.2) and net-metering (chapter 39-26.4) to facilitate meeting its energy goals.

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     (5) Historically and currently, farms and farm operations are both energy users and

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energy producers from renewable resources; given their parcel size and the absence of

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nonagricultural uses, farms can be good locations for locating renewable energy facilities, which

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help to meet established goals for obtaining energy from renewable energy sources.

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     (b) Purposes. The purposes of this chapter are to:

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     (1) Conserve farmland by increasing the economic viability of farm operations;

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     (2) Accomplish farmland preservation by restricting the development of non-farm uses in

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the area of a farm dedicated to a renewable energy facility from wind resources;

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     (3) Assure that farms of similar size are treated in a consistent manner throughout the

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state, with regard to renewable energy facility siting; and

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     (4) Contribute to meeting goals for energy use from renewable energy resources in the

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state in a manner that is cost effective.

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     2-23.3-3. Definitions. -- (a) "Agricultural product" means the product of the propagation,

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care, cultivation, raising, and harvesting of the products of truck farming, horticulture, turf,

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viticulture, viniculture, floriculture, forestry/tree farming, growing vegetables for farming, sugar

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bush, stabling of five (5) or more horses, dairy farming, or aquaculture or the raising of livestock,

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including for the production of fiber, furbearing animals, poultry, or bees.

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     (b) "Division" means the division of agriculture within the department of environmental

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management.

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     (c) "Farmer" means a person who is the owner or tenant of a farm and is actively engaged

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in farming and either files a 1040F U.S. Internal Revenue Form, or otherwise reports income

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from farming for income tax purposes with the Internal Revenue Service, and has a state tax

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number or is a nonprofit corporation that has as its purpose providing for agriculture.

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     (d) "Flicker" means alternating changes in light intensity caused by the moving blade of a

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wind turbine casting shadows on the ground and stationary objects.

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     (e) "Net metering" means net metering as that term is defined and used in chapter 39-

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26.4.

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     (f) "Renewable energy facility" means a facility that supplies energy, including but not

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limited to, electrical and thermal energy from a renewable energy resource as defined in section

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39-26-5.

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     (g) "Self-generator" means a farm-end user of energy in Rhode Island that displaces all or

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part of its energy consumption through the use of a customer-sited renewable energy facility.

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     2-23.3-4. Self-generator and net-metered projects. -- Self-generator and net-metered

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renewable energy facilities shall be considered integral and necessary part of the agricultural

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operation of the farm unit and their location on a farm shall be allowed, consistent with the

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operational standards provided for in section 2-23-4.6, and shall not be prohibited for purposes of

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agricultural preservation or treated differently for purposes of taxation than the energy supply and

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facilities using energy from retail or other commercial suppliers.

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     2-23.3-5. Siting and operating standards. -- Renewable energy facilities may be located

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on farms of farmers providing the following siting and operational standards are met:

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     (1) Flicker -- The renewable energy facility shall not result in more than thirty (30) hours

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of flicker on any occupied structure in any calendar year or more than fifteen (15) minutes of

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flicker on any occupied structure in any day.

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     (2) Noise -- The renewable energy facility shall not produce, at the property line of the

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farm, more than fifty (50) decibels or more than a ten (10) decibel increase over the ambient level

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decibel level, which level is the greater.

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     (3) Set back -- The renewable energy facility shall be setback from the property line by at

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least the required set back for new buildings or structures, and for renewable energy facilities

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using wind resources, by at least one and one tenth (1 1/10) times the maximum height of the

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renewable energy facility, and the total area dedicated to the fall zone of a wind turbine shall be at

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least equal to the area of a circle with a radius of one and one-quarter (1 ¼) times the maximum

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height of the wind turbine.

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     (4) Dedication of fall zone for production of agriculture products. The area fall zone

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described in subdivision (3) above shall be dedicated by written agreement for the production of

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agricultural products so long as the wind turbine remains standing.

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     2-23.3-6. Relation to statewide planning standards and guidelines. -- The provisions

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of this chapter including, but not limited to, the siting and operational standards provided for in

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section 2-23.3-5, shall be deemed to satisfy any guidance or standards issued by the statewide

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planning program or the state planning council pursuant to subdivision 42-11-10 (f)(7).

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     2-23.3-7. Duties of the division. -- (a) The division shall, in consultation with the office

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of energy resources, determine whether a proposed renewable energy facility subject to the

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provisions of this chapter is consistent with the siting and operating standards provided for in

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section 2-23.3-7 and whether the proposed renewable energy facility qualifies as a self-generator

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or net-metered project.

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     (b) The division shall issue a "certificate of conformity" to a farmer:

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     (1) If the division determines that a proposed renewable energy facility would be

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consistent with the siting and operating standards provided for in section 2-23.3-5;

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     (2) If the division determines that a proposed renewable energy facility would also meet

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the requirements for a self-generator or net-metered project as provided for in section 2-23.3-4,

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the division shall so certify; and

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     (3) The certificate at the discretion of the division may include such requirements and/or

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provisions as the division deems necessary to assure that the renewable energy facility will be in

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conformity with the requirements of this chapter during the period of its operation.

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     (c) The certificate of the division shall be deemed a determination that a renewable

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energy facility meets the requirements of this chapter.

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     (d) The division may issue such forms and establish such application requirements,

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including reasonable applications fees, which may be based on the size and/or complexity of the

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proposed renewable energy facility, and such procedures as it deems necessary to administer the

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provisions of this chapter.

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     2-23.3-8. Construction. -- This chapter, being necessary for the welfare of the state and

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its inhabitants, shall be liberally construed so as to effectuate its purposes.

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     2-23.3-9. Severability. -- If any clause, sentence, paragraph, section, or part of this

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chapter shall be adjudged by any court of competent jurisdiction to be invalid, that judgment shall

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not affect, impair, or invalidate the remainder of the chapter, but shall be confined in its operation

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to the clause, sentence, paragraph, section, or part directly involved in the controversy in which

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that judgment shall have been rendered.

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     SECTION 2. Section 45-24-37 of the General Laws in Chapter 45-24 entitled "Zoning

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Ordinances" is hereby amended to read as follows:

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     45-24-37. General provisions -- Permitted uses. -- (a) The zoning ordinance provides a

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listing of all land uses and/or performance standards for uses which are permitted within the

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zoning use districts of the municipality.

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      (b) Notwithstanding any other provision of this chapter, the following uses are permitted

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uses within all residential zoning use districts of a municipality and all industrial and commercial

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zoning use districts except where residential use is prohibited for public health or safety reasons:

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      (1) Households;

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      (2) Community residences; and

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      (3) Family day care homes.

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      (c) Any time a building or other structure used for residential purposes, or a portion of a

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building containing residential units, is rendered uninhabitable by virtue of a casualty such as fire

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or flood, the owner of the property is allowed to park, temporarily, mobile and manufactured

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home or homes, as the need may be, elsewhere upon the land, for use and occupancy of the

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former occupants for a period of up to twelve (12) months, or until the building or structure is

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rehabilitated and otherwise made fit for occupancy. The property owner, or a properly designated

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agent of the owner, is only allowed to cause the mobile and manufactured home or homes to

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remain temporarily upon the land by making timely application to the local building official for

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the purposes of obtaining the necessary permits to repair or rebuild the structure.

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      (d) Notwithstanding any other provision of this chapter, appropriate access for people

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with disabilities to residential structures is allowed as a reasonable accommodation for any

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person(s) residing, or intending to reside, in the residential structure.

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      (e) Notwithstanding any other provision of this chapter, an accessory family dwelling

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unit in an owner-occupied, single-family residence shall be permitted as a reasonable

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accommodation only for family members with disabilities. The appearance of the structure shall

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remain that of a single-family residence and there shall be an internal means of egress between

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the principal unit and the accessory family dwelling unit. If possible, no additional exterior

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entrances should be added. Where additional entrance is required, placement should generally be

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in the rear or side of the structure. When the structure is serviced by an individual sewage

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disposal system, the applicant shall have the existing or any new system approved by the

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department of environmental management. The zoning enforcement officer shall require that a

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declaration of the accessory family dwelling unit for the family member or members and its

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restrictions be recorded in the land evidence records and filed with the zoning enforcement officer

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and the building official. Once the family member or members with disabilities no longer resides

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in the premises on a permanent basis, or the title is transferred, the property owner shall notify the

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zoning official in writing, and the accessory family dwelling unit shall no longer be permitted,

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unless there is a subsequent, valid application.

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      (f) When used in this section the terms "people with disabilities" or "member or

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members with disabilities" means a person(s) who has a physical or mental impairment which

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substantially limits one or more major life activities, as defined in section 34-37-3 of the general

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laws.

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      (g) Notwithstanding any other provisions of this chapter, plant agriculture is a permitted

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use within all zoning districts of a municipality, including all industrial and commercial zoning

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districts, except where prohibited for public health or safety reasons or the protection of wildlife

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habitat.

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     (h) Notwithstanding any other provisions of this chapter, renewable energy facilities

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located on farms in accordance with chapter 2-23.3 are a permitted use within all zoning districts

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of a municipality, including all industrial and commercial zoning districts.

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SECTION 3. This act shall take effect upon passage.

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LC02169

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO AGRICULTURE AND FORESTRY -- RENEWABLE ENERGY FACILITIES

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     This act would regulate the placement of renewable energy facilities on farmlands.

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     This act would take effect upon passage.

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LC02169

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