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Kiowa County’s 1041 Setback Meeting Attracts Large Attendance and Many Opinions


By Betsy Barnett

May 17, 2023

Nearly 60 people attended the Kiowa County Board of County Commissioners’ 1041 Setback meeting held on May 11 at the Kiowa County Courthouse in Eads. Approximately another 50-60 attended either over the county’s digital meeting software or watched on the livestream provided by the Kiowa County Independent on their Facebook page.

At the forefront of the conversation, and the reason that attracted so many attendees at the meeting, was the controversy surrounding the Planning & Zoning Commission’s April 4 decisions on setbacks for Wind Turbines, Transmission Lines, and Solar Developments. As reported by the Independent in the May 3, 2023 edition, those April 4th setback rules were stringent and had caught the concern of local renewable energy companies, particularly Invenergy Energy Company that was representing their Towner Energy Center project.

After input from Invenergy, concerned citizens, and the BOCC the Planning & Zoning commission took another look at the setbacks at their May 2nd meeting and ended up relaxing their original setback standards to align the county more within the realm of what other renewable energy projects had determined were effective.

Among the crowd in attendance at the county’s 1041 Setback Hearing on May 11 were numerous project members from Invenergy, representatives from other renewable energy companies looking to develop in Kiowa County, landowners who are participating in the projects as well as non-participating landowners, and other interested individuals.

Also present were members of the Planning & Zoning committee.

The overall discussion was informative, respectful, and eventually productive for all who attended. All got a chance to voice their concerns and opinions in a safe and accepting environment and all opinions were understood based on the person’s perspective. One thing was agreed upon by all in attendance—Kiowa County is a county that has struggled economically for many decades and still struggles today being in the lower ranks of the wealthiest counties list in Colorado, and therefore the possibility of a whole renewable energy industry coming into Kiowa County is most fortunate and much-needed.

But how much should Kiowa County regulate the renewable energy industry that is coming in—that was the question all were trying to answer.

After the Planning & Zoning meeting on May 2, 2023 the following recommended setbacks were presented to the commissioners, land owners (participating and non-participating), and renewable energy companies:

Wind Turbines

  • Setback 1 mile (5,280 feet) from incorporated towns and unincorporated towns.
  • Setback .5 miles (2,640 feet) from residential structures (occupied or unoccupied) and schools.
  • Setback 1.2 times the tip height of the turbine from non-residential structures, public roads, or property lines.
  • Setback requirements will not apply to participating landowner’s residences, other structures or property lines within the boundaries of a lease for development. Setbacks from non-participating residences, other structures and property lines may be negotiated by the landowner and the developer which would require a waiver to be issued by the Board of County Commissioners.

Transmission Lines

  • All NESC (National Electric Safety Codes) Standards will apply.
  • Exceptions will be made for public utilities according to state and federal regulations.
  • All existing transmission lines will be grandfathered in.

Solar Developments

  • Setback 1 mile (5,280 feet) from incorporated towns and unincorporated towns.
  • Setback .5 miles (2,640 feet) from residential structures (occupied or unoccupied) and schools.
  • Setback 50’ from non-residential structures, public roads, or property lines.
  • Setback requirements will not apply to participating landowner’s residences, other structures or property lines within the boundaries of a lease for development. Setbacks from non-participating residences, other structures and property lines may be negotiated by the landowner and the developer which would require a waiver to be issued by the Board of County Commissioners.

Invenergy was the company that indicated they would have been compromised by the April 4 setback standards as they had stated those setbacks would have affected 52% of their overall project—meaning they would have had to spend a great deal of time and money on changing leases, placement plans, and permitting paperwork. In addition, the more stringent setbacks would have completely eliminated 18% of their project at the Towner Energy Center. On Thursday at the hearing Director of Renewable Development for Invenergy, Natacha Kiler, said the adjustments made by Planning & Zoning were more workable, “I’m more content where we are today.”

Kiler and her team presented a heat map on powerpoint that compared the amount of land that would have been unused within the April 4 setback requirements vs the same image taking into consideration of the newly proposed May 2 setback requirements. Kiler pointed out that even the newest standards resulted in a large swath of area that was still regulated and not able to be developed.

A representative of GoodWay Energy, who is focusing on a solar project in Kiowa County, did make a request to the commissioners, who will have the final decision on the setback requirements, to change the Solar Developments setback to structures and roads of .5 miles to .25 miles. That way, they indicated, the largest distance of separation would be .5 miles instead of 1 mile. The representative said, “I’d recommend a ¼ mile setback because a ½ mile on each side of the road or right-of-way makes the total separation a mile and would impact the projects.”

The discussion then turned to the difference between “waivers” and “exemptions” when it comes to the regulations. The request was made that the 1041 Plan include clear language to address this. Exemptions come in when the participating land is continuous even though there are different landowners involved. Waivers can be applied for when non-participating and participating landowners have to make an agreement on the setbacks in their specific situation.

Kiowa County Extension Agent Tearle Lessenden addressed the commissioners and urged them to realize that much of the land in Kiowa County is already non-participating in these renewable energy projects. There are various reasons for that including the close proximity to the Sand Creek Massacre National Historic Site, location within a protected Lessor Prairie Chicken area, or location within the government’s no-fly zone which is a strip of land where training maneuvers take place. Therefore, Lessenden argued since those conditions take a large part of central and western Kiowa County out of the equation, they should consider setbacks that don’t hinder what opportunity there is in the county.

Greg Brophy from Yuma County who has been involved with renewable energy development in Colorado, brought up other considerations for the commissioners. First, Brophy indicated in the projects he’s seen that a 1.1 times the distance of the tip height of a wind tower is normal and standard. This is slightly less than what is being proposed, and Brophy urged the commissioners to consider that change.

Brophy also brought up the problem with have a 50’ setback for solar projects. A 50’ setback of pastureland becomes a hazard because who is going to maintain that kind of acreage of weeds that will grow. There was some discussion, without a solid answer, as to whose maintenance responsibility the 50’ setback area would be. Brophy said that big of a setback area for solar is not needed and there should be no setbacks, besides what would be standard at the national level, for solar projects from the roads and property lines.

Finally, Brophy questioned the Planning & Zoning commission as to what their definition of an “unoccupied residence” is. Brophy went on to say that out here there are many old homesteads that are unlivable and would never be lived in, but there is nothing in the 1041 plan to define these types of structures. He suggested a definition should be put in place and such buildings that are falling down and unlivable should not be considered to require a setback.

Most of the following discussion was in favor of less regulation for the setbacks. However, one landowner who lives on the east end of the county said he is surrounded by participating properties, but he does not want to participate. He requested the waiver option be in the guidelines so landowners like him can maintain the quality of life they seek. He said he understands the importance of the renewable energy projects for his neighbors and the county but wants his right to not participate within the plan.

Some members of the Planning & Zoning committee spoke as well. Greg Miller, the newest member of the committee, wanted to make sure everyone understood the differences between waivers and exemptions. The committee wanted to make sure that non-participating landowners had options as well.

P & Z board member Roger Saffer gave an interesting background history on what the committee has been facing during the negotiations for the setbacks. He said, “We feel these setbacks presented today represent a balanced proposal. For the information we were given, including some wanting 3-5 mile setbacks, we feel this is workable for most involved.” Saffer went on to convey that they felt the county should not provide too much of a blank check, but also provide tools to assist developers and landowners to make proposals that will work for them.

The county commissioners heard all the concerns from both sides of the issue and will now take into consideration all that was said. They will more than likely make their final 1041 Setback determination at the May 25 BOCC meeting.