March 10, 2013

Heron Bay Homeowners Association Appeals Approval of Halus Wind Turbine

Two weeks after San Leandro's Board of Zoning Adjustments (BZA) approved a height variance for a 100-foot-tall wind turbine at Halus Power Systems at its February 7, 2013, meeting, the Heron Bay Homeowners Association filed an appeal with the San Leandro City Council.

On February 7, 2013, the BZA voted 4-0 to approve a height variance for a wind turbine at Halus Power Systems at 2539 Grant Avenue. Halus filed an application to install a wind turbine that exceeds by 40 feet the 60-foot height limit for structures on properties that are zoned IG (General Industrial), which necessitated approval of a variance. BZA members Janet Palma, Thomas Makin, and Jane Abelee were not present at the meeting. Catherine Vierra Houston, who was re-appointed to the BZA by District 4 Councilmember Benny Lee just three days earlier, voted in favor of the variance. BZA members Rene Mendieta, Phil Daly, and Lee Thomas also voted in favor of the variance. Councilmember Lee has actively opposed the wind turbine and was President of the Heron Bay Homeowners Association when it threatened to sue the City of San Leandro unless an Environmental Impact Report was required.

The appeal, filed by A. Alan Berg, the attorney for the Heron Bay Homeowners Association, claims that the BZA “improperly and illegally granted a variance to Halus Power Systems,” that approval of the variance was “not supported by required findings,” and that BZA member Janet Palma's actions prior to the hearing constituted possible prejudice.

The actions of Janet Palma referred to in the appeal are comments she posted to a San Leandro Patch article about the November 2012 election. Palma's comments that mentioned Halus included “...not true that Halus has no local support, in fact just the opposite.” and “I do believe that there is support for the Halus wind turbine and that all information needs to be heard before it is considered a dead deal.” These comments were made on November 8, 2012, three months before the BZA meeting. Palma did not attend the February 7, 2013, BZA meeting and did not vote on the variance. The appeal states, “...her prejudicial comments regarding appellant and her pre-determined decision to grant the variance were published on or about November 7, is certainly arguable and possible, that Ms. Palma infected and influenced the remaining Board members and city staff well before the public hearing.”

The appeal states that “it takes no great imagination to see that the turbine will constitute an eyesore. One that damages the near perfect scenic view of the marsh, the creek and the bay.” Halus is bordered on the west by a salvage yard, on the south and east by commercial/industrial properties, and 120-foot-tall electrical transmission towers are located between the Heron Bay development and San Francisco Bay. Photo simulations showing the wind turbine were prepared by Halus, but the appeal rejects the photo simulations, stating, “the subject photos simulations are all taken from public trail and bay views. None of them are taken from the home sites of the approximately 25 homes that would be directly affected...”

Councilmember Benny Lee's letter opposing the wind turbine is cited in the appeal: “The Association is aware that Benny Lee, the president of the Heron Bay Homeowners Association, has independently sent written comments listing six separate concerns that he has with the proposed project. The Association hereby incorporates and adopts each and every point raised by Mr. Lee in his comments.”

The wind turbine is cited as a potential hazard to air navigation, with the appeal stating, “There is little doubt that should an air catastrophe occur, and should disaster be traced back to interference from the proposed wind turbine, that the City would be liable for all resultant damages as the result of their refusal to demand a full EIR...” The Federal Aviation Administration disagrees, and on June 21, 2012, issued a letter stating the wind turbine “would not be a hazard to air navigation..."

The appeal claims that “All studies of wind turbines as they relate to property values indicate that property values will decline for both permanent and temporary periods.” However, a 2009 study by Lawrence Berkeley National Laboratory entitled “The Impact of Wind Power Projects on Residential Property Values in the United States” concluded, “Based on the data and analysis presented in this report, no evidence is found that home prices surrounding wind facilities are consistently, measurably, and significantly affected by either the view of wind facilities or the distance of the home to those facilities.”

The risk of bankruptcy is the final argument against the wind turbine, even going so far as to cite Solyndra's 2011 bankruptcy: “There also appears to be no plan in effect in the event that Halus would abandon the project and the site or file bankruptcy. This risk has certainly become more obvious is [sic] recent times as evidenced by the Solyndra disaster.”

According to city staff, there have been four appeals of BZA decisions in the past nine years. In all four cases, the City Council upheld the BZA's decision.

The appeal is scheduled for the April 1, 2013, San Leandro City Council meeting.

Posted by Mike Katz-Lacabe at March 10, 2013 10:34 AM | TrackBack
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