Wind Access and Permitting Law

In July 2009, the Delaware legislature enacted a law (HS 1 for H.B. 70) prohibiting unreasonable public and private restrictions on the installation of wind energy systems on single-family residential properties. The prohibition includes restrictions put in place by county and local governments; homeowner's associations; and organizations formed for the management of commonly owned properties. The provisions apply only to wind energy systems that qualify for support under the state Green Energy Fund -- which offers incentives for residential wind energy systems -- or similar programs administered by Delaware's State Energy Office.

The law also defines a limited set of reasonable restrictions that governments and associations are permitted to use in regulating residential wind energy systems. Any limitations put in place may not be more restrictive than the following:

• Setbacks: 1.0 times the height of the turbine (base to tip of a blade) from property lines.
• Noise: No more than 5 decibels above average existing noise level up to a maximum of 60 decibels at any location along the property line.
• Appearance: Systems must be free from signage, advertising, streamers and other decorative items not related to their operation. Electrical wiring of non-building integrated systems must be placed underground.

The originally adopted law declared all such restrictions enacted after the effective date (30 days after enactment) to be void and unenforceable; thus, it did not affect existing restrictions or those put in place before August 8, 2009. However, in July 2010 the code was amended (H.B. 500, Section 88) to declare that existing county or municipal zoning prohibitions or restrictions that are not consistent with the wind access provisions described above are no longer in effect, and that qualifying wind energy systems do not require a conditional use or other zoning review process. This change does not appear to affect private restrictions put in place before August 8, 2009.