Town of Wheatfield, NY
Niagara County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Wheatfield as indicated in article histories. Amendments noted where applicable.]
GENERAL REFERENCES
Subdivision of land — See Ch. 169.
Towers — See Ch. 177.
Zoning — See Ch. 200.
[Adopted 8-27-2007 by L.L. No. 6-2007]

§ 198-1 Definitions.

As used in this article, the following terms shall have the meanings indicated:
COMMERCIAL WIND ENERGY CONVERSION SYSTEM (WECS)
A wind energy conversion system consisting of one wind turbine, one tower and associated control or conversion electronics, which has a rated capacity greater than 250 kilowatts and a total height of more than 150 feet and is intended to solely supply electrical power into a power grid for sale.
NONCOMMERCIAL WIND ENERGY CONVERSION SYSTEM
A wind energy conversion system consisting of one wind turbine, one tower and associated control or conversion electronics, which has a rated capacity of not more than 250 kilowatts and a total height of not more than 150 feet and is intended to solely supply electrical power for the use on the subject property.
TOTAL HEIGHT (also "maximum overall height")
The height of the wind energy conversion system measured from the ground elevation to the top of the tip of the blade in the vertical position.
TOWER
The support structure, including guyed, monopole and lattice types, upon which a wind turbine and other mechanical devices are mounted.
TOWER HEIGHT
The height above grade of the uppermost fixed portion of the tower, excluding the length of any axial rotating turbine blades.
WIND ENERGY CONVERSION SYSTEMS
One or more mechanical devices which are designed and used to convert wind energy into a form of electric energy.
WIND ENERGY FACILITY
Any wind energy conversion system, wind measurement tower or wind energy system, including all related infrastructure, electrical lines and substations, access roads and accessory structures.
WIND MEASUREMENT TOWER
A tower used for the measurement of meteorological data, such as temperature, wind speed and wind direction.
WIND TURBINE
Any piece of electricity-generating equipment that converts wind energy into electrical energy through the use of airfoils, rotating turbine blades or similar devices to capture the wind.

§ 198-2 Intent and purpose.

A. 
The Town of Wheatfield recognizes that wind energy is a renewable and clean energy resource of the Town and that its conversion to electricity will reduce the dependence on nonrenewable energy resources and decrease air and water pollution.
B. 
The Town recognizes that previous wind energy codes were outdated and desires a more comprehensive, up-to-date code that sets standards for the development of wind energy conversion systems while ensuring the safety, heath and welfare of the public.

§ 198-3 Commercial wind energy conversion systems (WECS).

A. 
The placement, construction and major modification of all commercial WECS within the boundaries of the Town of Wheatfield shall be permitted only by special use permit in the M-1 and M-2 Industrial Zoning Districts upon concurrent site plan approval issued by the Town of Wheatfield Planning Board, as provided herein, after SEQRA review, with the Town of Wheatfield Planning Board designated as lead agent, and upon issuance of a building permit, and shall be subject to all provisions of this article.
B. 
Applications under this article shall be made as follows:
(1) 
Applicants for a special use permit to place, construct or modify a commercial WECS within the Town of Wheatfield shall submit the following information to the Planning Board for its referral to a professional engineer or consultant for review and recommendation:
(a) 
Name and address of the applicant.
(b) 
Evidence that the applicant is the owner of the property involved or has the written permission of the owner to make such an application.
(c) 
Visual environmental assessment form (EAF), landscaping plan and visual assessment report, including appropriate models and photography assessing the visibility from key viewpoints identified in the visual EAF (or by the Town of Wheatfield Planning Board), existing tree lines and proposed elevations. The visual EAF shall include a detailed or photographic simulation showing the site fully developed with all proposed wind turbines and accessory structures.
(d) 
A site plan drawn in sufficient detail to show the following:
[1] 
Location of the tower(s) on the site and the tower height, including blades, wind turbine diameter and ground clearance.
[2] 
Utility lines, both above and below ground, within a radius equal to the proposed tower height including the blades.
[3] 
Property lot lines and the location and dimensions of all existing structures and uses on site.
[4] 
The location and dimension of all existing structures and uses on all adjacent properties, including across the street or other rights-of-way.
[5] 
Dimensional representation of the various structural components of the tower construction including the base and footing.
[6] 
Certification by a professional engineer licensed in New York State that the tower's design is sufficient to withstand wind-loading requirements for structures as established by the New York State Uniform Construction Code.
[7] 
Existing topography.
[8] 
Proposed plan for grading and removal of natural vegetation.
[9] 
Proposed plan for restoration after construction according to New York State Agriculture and Markets and New York State Department of Environmental Conservation guidelines.
[10] 
Wind characteristics and dominant wind direction from which 50% or more of the energy contained in the wind flows.
[11] 
Plan for ingress and egress to the proposed project site, including:
[a] 
A description of the access route from the nearest state-, county- and/or Town-maintained roads, to include:
[i] 
Road surface material stating the type and amount of surface cover;
[ii] 
Width and length of access route; and
[iii] 
Dust-control procedures.
[b] 
A road maintenance schedule or program.
[c] 
Review of railroad accessibility for deliveries.
[12] 
Detailed construction plan, including, but not limited to, a construction schedule, hours of operation, designation of heavy haul routes, a list of material, equipment and loads to be transported, identification of temporary facilities intended to be constructed, and contact representative in the field with name and phone number.
[13] 
All groves of trees shall be located on the site plan at time of application. No grove or woodlots of trees shall be removed without approval of the Planning Board.
(e) 
Specific information on the type, size, height, rotor material, rated power output, performance, safety and noise characteristics of all commercial WECS.
(f) 
Photographs or detailed drawings of each wind turbine model, including the tower and foundation.
(g) 
A noise report shall be furnished which shall include the following:
[1] 
A description and map of the project's noise-producing features, including the range of noise levels expected and the tonal and frequency characteristics expected. The noise report shall include low-frequency, infrasound, pure tone and repetitive/impulsive sound;
[2] 
A description and map of the noise-sensitive environment, including any sensitive noise receptors, i.e., residences, hospitals, libraries, schools, places of worship and other facilities where quiet is important, within two miles of the proposed facilities;
[3] 
A survey and report prepared by a qualified engineer that analyzes the preexisting ambient noise regime (including seasonal variation), including, but not limited to, separate measurements of low-frequency and A-weighted noise levels across a range of wind speeds (including near cut-in), turbulence measurements, distance from the turbines, location of sensitive receptors relative to wind direction, and analyses at affected sensitive receptors located within two miles of the proposed project site;
[4] 
A description and map showing the potential noise impacts, including estimates of expected noise impacts upon construction and operation workers and estimates of expected noise levels at sensitive-receptor locations;
[5] 
A description and map of the cumulative noise impacts;
[6] 
A description of the project's proposed noise-control features, including specific measures proposed to protect workers and specific measures proposed to mitigate noise impacts for sensitive receptors consistent with levels in this article;
[7] 
Identification of any problem areas;
[8] 
Manufacturers' noise design and field testing data, both audible (dBA) and low frequency (deep bass vibration), for all proposed structures; and
[9] 
A report that outlines issues and considerations for individuals that use hearing aids.
(h) 
A geotechnical report (by a licensed professional) shall be furnished which shall, at a minimum, include the following:
[1] 
Soils engineering and engineering geologic characteristics of the site based on on-site sampling and testing;
[2] 
Foundation design criteria for all proposed structures;
[3] 
Slope stability analysis; and
[4] 
Grading criteria for ground preparation, cuts and fills, and soil compaction.
(i) 
Ice throw calculations. A report from a professional engineer licensed in New York State that calculates the maximum distance that ice from the wind turbine blades could be thrown. (The basis of the calculation and all assumptions must be disclosed.)
(j) 
Blade throw calculations. A report from a professional engineer licensed in New York State that calculates the maximum distance that pieces of the turbine blades could be thrown. (The basis of the calculation and all assumptions must be disclosed.)
(k) 
Catastrophic tower failure. A report from the turbine manufacturer stating the wind speed and conditions that the wind turbine is designed to withstand (including all assumptions).
(l) 
Federal Aviation Administration (FAA) notification. A copy of written notification to the FAA, the local Air Force base and Mercy Flight.
(m) 
Utility notification. Utility interconnection data and a copy of a written notification to the utility of the proposed interconnection.
(n) 
Notification to microwave communications link operators. An application that includes any commercial WECS which is located within two miles of any microwave communications link shall be accompanied by a copy of a written notification to the operator of the link.
(o) 
Floodplain. An application that includes any commercial WECS which is located within a one-hundred-year floodplain area, as such flood hazard areas are shown on the floodplain maps, shall be accompanied by a detailed report which shall address the potential for wind erosion, water erosion, sedimentation and flooding, and which shall propose mitigation measures for such impacts.
(p) 
Other information. Such additional information as may be reasonably requested by the Town Engineer or Planning Board.
C. 
Special use permits issued for a commercial WECS shall be subject to the following conditions:
(1) 
Minimum lot area:
(a) 
The minimum lot area for a commercial WECS shall be two acres;
(b) 
An additional two acres shall be required for each additional tower.
(2) 
Setbacks. Any commercial WECS shall adhere to the following setbacks.
(a) 
From all property lines:
[1] 
A minimum 1 1/2 times the total height of the commercial WECS from any property line excluding adjoining lot lines of project participants.
(b) 
From residential zoning districts:
[1] 
A minimum 1,000 feet from any residential district boundary line.
(c) 
From structures:
[1] 
A minimum 1 1/2 times the total height of the commercial WECS from any building or structure; and
[2] 
A minimum of 1,500 feet from any dwelling, regardless of the zoning district in which the dwelling exists.
(d) 
From public roads and public railroads:
[1] 
A minimum 1 1/2 times the total height of the commercial WECS from any public road or railroad; and
[2] 
Where the lot line abuts a public right-of-way, the setbacks specified above shall be measured from the center line of such right-of-way.
[3] 
The required setbacks shall not apply to private roads, private driveways or private railroads.
(e) 
From aboveground transmission lines greater than 12 kilovolts:
[1] 
A minimum 1 1/2 times the total height of the commercial WECS from any aboveground transmission line greater than 12 kilovolts.
(f) 
Notwithstanding the provisions set forth in these subsections, such setbacks from property lines, public roads and public railroads do not apply if the application is accompanied by a legally enforceable agreement(s) that runs with the property for a period of 25 years or the life of the permit, whichever is longer, that the adjacent landowners agree to the elimination of the required setbacks. Any agreement to the elimination of such property line setbacks shall not constitute the reduction or elimination of required setbacks from structures, as identified herein, and such setbacks from structures for safety reasons shall not be reduced or eliminated.
(3) 
Maximum overall height:
(a) 
The maximum overall height of any commercial WECS shall be 500 feet, consistent with Federal Aviation Administration (FAA) regulations. The maximum height shall be measured from the ground elevation to the top of the tip of the blade in the vertical position.
(4) 
Signage.
(a) 
No advertising sign or logo shall be placed or painted on any commercial wind energy facility.
(5) 
Color and finish.
(a) 
Wind turbines and towers shall be painted a nonobtrusive (e.g., light environmental color such as white, gray or beige) color that is nonreflective.
(b) 
The design of commercial WECS buildings and related structures shall, to the extent reasonably possible, use materials, colors, textures, screening and landscaping that will blend the facility to the natural setting and the existing environment.
(6) 
Lighting.
(a) 
The applicant shall submit a commercial wind energy facility lighting plan that describes all lighting that will be required, including any lighting that may be required by the FAA. Such plan shall include, but is not limited to, the planned number and location of lights, light color, whether any such lights will be flashing, and mitigation measures planned to control the light so that it is does not spill over onto neighboring properties.
(7) 
Compliance with regulatory agencies.
(a) 
The applicant is required to obtain all necessary regulatory approvals and permits from all federal, state, county and local agencies having jurisdiction and approval related to the completion of the commercial WECS.
(8) 
Safety and security requirements. The applicant shall adhere to the following safety and security requirements:
(a) 
Safety shutdown. Each commercial WECS shall be equipped with both manual and automatic controls to limit the rotational speed of the blade within the design limits of the wind turbine. Manual electrical and/or over-speed shutdown disconnect switches shall be provided and clearly labeled on the commercial WECS. No wind turbine shall be permitted that lacks an automatic braking, governing or feathering system to prevent uncontrolled rotation, over-speeding and excessive pressure on the tower structure, rotor blades and wind turbine components.
(b) 
All structures which may be charged with lightning shall be grounded according to applicable electrical codes.
(c) 
All wiring between the wind turbines and the commercial WECS substation shall be underground. The applicant is required to provide a site plan showing the locations of all overhead and underground electric utility lines, including substations, for the project.
(d) 
All transmission lines from a commercial WECS to on-site substations shall be underground. The Planning Board shall have the authority to waive this requirement if the owner of the property upon which the transmission line will be sited consents to aboveground transmission lines or if the Planning Board has sufficient engineering data submitted by the applicant to demonstrate that underground transmission lines are unfeasible.
(e) 
Ground clearance. The blade tip of any wind turbine shall, at its lowest point, have ground clearance of not less than 50 feet.
(f) 
Climbability. Wind turbine towers shall not be climbable up to 15 feet above ground level.
(g) 
Access doors locked. All access doors to commercial WECS structures and electrical equipment shall be lockable and shall remain locked at all times when operator personnel are not present.
(h) 
Self-supporting structures. All towers shall be of monopole construction (single pole). No lattice structures or guy-wire-supported structures shall be permitted.
(i) 
Signage. Appropriate warning signage shall be placed on a commercial WECS and at all entrances. Signage shall also include two twenty-four-hour emergency contact numbers to the owner of the commercial WECS in accordance with local, state and federal codes.
(j) 
Ice throw. Special use permit shall determine the acceptable ice throw range based on the activities in the area, location and calculations of the ice throw.
(9) 
Noise requirements. The applicant shall adhere to the following noise requirements:
(a) 
Compliance with noise regulations required. A commercial WECS special use permit shall not be granted unless the applicant demonstrates that the proposed project complies with all noise regulations.
(b) 
Noise study required. The applicant shall submit a noise study based on the requirements set out in the § 198-3B(1)(g) of this article. The Planning Board shall determine the adequacy of the noise study and, if necessary, may require further submissions. The noise study shall consider the following:
[1] 
Low-frequency noise;
[2] 
Infrasound noise;
[3] 
Pure tone; and
[4] 
Repetitive/impulsive sound.
(c) 
Noise setbacks. The Planning Board may impose a noise setback that exceeds the other setbacks set out in this article if it deems that such greater setbacks are necessary to protect the public health, safety and welfare of the community.
(d) 
Audible noise standard. The audible noise resulting from the operation of any commercial WECS shall not be created which causes the noise level at the boundary of the proposed project site to exceed that of the mean twenty-four-hour dBA operating noise that currently exists for more than five minutes out of any one-hour time period.
(e) 
Operations, low-frequency noise. A commercial WECS shall not be operated so that impulsive sound below 20 Hz adversely affects the habitability or use of any dwelling unit, hospital, school, library, nursing home or other sensitive noise receptor.
(f) 
Noise complaint and investigation process required. The applicant shall submit a noise complaint and investigation process. The Planning Board shall determine the adequacy of the noise complaint and investigation process.
(10) 
Fire hazard protection. The applicant shall submit a fire control and prevention program that is appropriate and adequate for the proposed facility. The proposed program may include, but is not limited to, the following:
(a) 
Fireproof or fire-resistant building materials;
(b) 
Buffers or fire-retardant landscaping;
(c) 
Availability of water;
(d) 
An automatic fire-extinguishing system for all buildings or equipment enclosures of substantial size containing control panels, switching equipment or transmission equipment - without regular human occupancy; and
(e) 
Provision of training and fire-fighting equipment for local fire-protection personnel.
(11) 
Impact on wildlife species and habitat. The applicant shall adhere to the following regarding the impact on wildlife species and habitat:
(a) 
Endangered or threatened species. Development and operation of a commercial WECS shall not have a significant adverse impact on endangered or threatened fish, wildlife or plant species or their critical habitats, or other significant habitats identified in the Town of Wheatfield Comprehensive Plan and/or the studies and plans of the regional planning commissions based on criteria established by the federal or state regulatory agencies.
(b) 
Migratory birds. Development and operation of a commercial WECS shall be evaluated based on SEQRA findings.
(12) 
Unsafe and inoperable commercial WECS; site reclamation. The applicant shall adhere to the following:
(a) 
Removal and site restoration. An unsafe commercial WECS, inoperable commercial WECS, and commercial WECS for which the special use permit has expired shall be removed by the owner. All safety hazards created by the installation and operation of the commercial WECS shall be eliminated, and the site shall be restored to its natural condition to the extent feasible. A bond or other appropriate form of security shall be required to cover the cost of the removal and site restoration.
(b) 
Removal and site restoration plan required. The applicant shall submit a removal and site restoration plan and removal and site restoration plan cost estimate to the Town of Wheatfield Planning Board for its review and approval. The restoration plan shall identify the specific properties to which it applies and shall indicate removal of all buildings, structures, wind turbines, access roads and/or driveways, foundations to four feet below finish grade, road repair costs, if any, and all regrading and revegetation necessary to return the subject property to the condition existing prior to establishment of the commercial WECS. The restoration shall reflect the site-specific character, including topography, vegetation, drainage and any unique environmental features. The plan shall include a certified estimate of the total cost (by element) of implementing the removal and site restoration plan.
(c) 
Public nuisance. Every unsafe commercial WECS and every inoperable commercial WECS is hereby declared a public nuisance which shall be subject to abatement by repair, rehabilitation, demolition or removal. An inoperable commercial WECS shall not be considered a public nuisance, provided that the owner can demonstrate that modernization, rebuilding or repairs are in progress or planned and will be completed within no more than six months.
(d) 
"Inoperable" defined. A commercial WECS shall be deemed inoperable if it has not generated power within the preceding six months.
(13) 
Interference with residential television, microwave and radio reception.
(a) 
The applicant must submit information that the proposed construction of the commercial WECS will not cause interference with microwave transmissions, cellular transmissions, residential television or radio reception of domestic or foreign signals. The applicant shall include specific measures proposed to prevent interference, a complaint procedure and specific measures proposed to mitigate interference impacts.
(14) 
Interference with aviation navigational systems. The applicant shall adhere to the following:
(a) 
No interference with aviation facilities. No commercial WECS shall be installed or operated in a manner that causes interference with the operation of any aviation facility.
(b) 
Compliance with FAA regulations. All commercial WECS sitings shall comply with FAA regulations.
(c) 
Locking mechanisms to limit radar interference required. All commercial WECS shall include a locking mechanism which prevents the blades from rotating when not producing power in order to limit airport radar interference or "clutter." This provision does not apply while the commercial WECS is freewheeling during start-up and shutdown. The Planning Board may modify or eliminate the requirement for a locking mechanism if sufficient evidence is presented that no significant airport radar interference or clutter will be caused by the commercial WECS.
(15) 
Erosion control. The applicant shall adhere to the following:
(a) 
Erosion control plan required. Before the Town of Wheatfield shall issue a grading or building permit for the commercial WECS, the applicant shall submit an erosion control plan to the Planning Board and Town Engineer for their review and approval. The plan shall minimize the potential adverse impacts on wetlands and Class I and II streams and the banks and vegetation along those streams and wetlands and minimize erosion or sedimentation.
(b) 
If the proposed project disturbs over one acre, the applicant must comply with the New York State Department of Environmental Conservation (NYSDEC) SPDES general permit for stormwater discharges from construction activity (Permit No. GP-02-01). A copy of the notice of intent (N.O.I.) and stormwater pollution prevention plan (SWPPP) as required by the general permit must be filed with the Town of Wheatfield prior to construction. Per the general permit, construction cannot begin until the required time period for NYSDEC review has passed.
(16) 
Certification. The applicant shall provide the following certifications.
(a) 
Certification of structural components. The foundation, tower, wind turbine and compatibility of the tower with related equipment shall be certified in writing by a structural engineer registered in New York State. The engineer shall certify compliance with good engineering practices and compliance with the appropriate provisions of the Uniform Construction Code that have been adopted in New York State.
(b) 
Certification post construction. After completion of the commercial WECS, the applicant shall provide a post-construction certification from a professional engineer licensed in New York State that the project complies with applicable codes and industry practices and has been completed according to the design plans.
(c) 
Certification of electrical system. The electrical system shall be certified in writing by an electrical engineer registered in New York. The engineer shall certify compliance with good engineering practices and with the appropriate provisions of the Electric Code that have been adopted by New York State.
(d) 
Certification of wind turbine over-speed control. The wind turbine over-speed control system shall be certified in writing by a mechanical engineer registered in New York State. The engineer shall certify compliance with good engineering practices.
(e) 
Certification of project. Certificate of completion must be supplied by the applicant and approved by the Town of Wheatfield Code Enforcement Officer.
D. 
Monitoring requirements for commercial WECS:
(1) 
Right to enter premises for monitoring. Upon reasonable notice, Town of Wheatfield officials or their designated representatives may enter a lot on which a commercial WECS special use permit has been granted for the purpose of compliance with any permit requirements. Twenty-four-hours' advance notice by telephone to the owner/operator or designated contact person shall be deemed reasonable notice.
(2) 
Avian/bat impact study plan. The applicant shall submit a plan for monitoring the avian impact of the commercial WECS to the Planning Board for its review and approval. Such plan shall document and follow accepted scientific study procedures.
(3) 
Periodic reporting required. The Planning Board may request that the applicant periodically submit documentation reporting the environmental impacts of the operational commercial WECS that shall contain content and be in the form prescribed by the Planning Board.
(4) 
Power production report required. The Planning Board may request that the applicant periodically submit documentation reporting that power is being generated by the commercial WECS.
(5) 
Inspections. Unless waived by the Planning Board, a commercial WECS shall be inspected annually by a professional engineer licensed in New York State that has been approved by the Town or at any other time upon a determination by the Town's Code Enforcement Office that the wind turbine, tower or other commercial WECS components have sustained structural damage, and a copy of the inspection report shall be submitted to the Town Code Enforcement Officer. Any fee or expense associated with this inspection shall be borne entirely by the permit holder.
(6) 
General complaint process:
(a) 
During construction, the Town of Wheatfield Code Enforcement Officer can issue a stop order at any time for any violations of the special use permit.
(b) 
Post construction. After construction is complete, the permit holder shall establish a contact person, including name and phone number, for receipt of any complaint concerning any permit requirements. Upon receipt of complaint from the Town of Wheatfield Code Enforcement Officer, the permit holder/contact person shall have seven working days to reply to the Town in writing.
E. 
Application and permit fees and costs:
(1) 
Application fee. The applicant shall pay all costs associated with the Town of Wheatfield's review and processing of the application. The applicant shall submit a deposit with the application in the amount as determined by resolution by the Town Board. The Town of Wheatfield may require additional deposits to cover the costs of reviewing and processing the application. Such additional deposits, if requested, shall be promptly submitted by the applicant. Following action on the application, any unused amount of the deposit(s) shall be returned to the applicant with a summary of the costs incurred.
(2) 
Permit fee. The applicant shall pay a permit fee, in the amount as determined by resolution by the Town Board, to cover the costs incurred by the Town associated with a commercial WECS special use permit and building permit, such as administration, inspections and enforcement.
(3) 
Proof of applicable permits. Prior to the issuance of a building permit, the applicant shall document that all applicable federal, state, county and local permits have been obtained.
(4) 
Proof of insurance. Prior to the issuance of a building permit, the applicant shall provide the Town Clerk with proof of insurance in a sufficient dollar amount to cover potential personal and property damage associated with construction and operation thereof.
(5) 
The Town of Wheatfield reserves the right to, by local law, provide that no exemption pursuant to the provision of the New York State Real Property Tax Law (RPTL) § 487 shall be applicable within its jurisdiction.
F. 
Findings:
(1) 
Findings necessary to grant a commercial WECS special use permit. In order to grant a commercial WECS special use permit, the Town of Wheatfield shall review the application, all filings by any other party, and conduct a public hearing. A commercial WECS special use permit shall not be granted unless the Town of Wheatfield Planning Board makes the following findings based on substantial evidence:
(a) 
The proposed commercial WECS project is consistent with the Town of Wheatfield Comprehensive Plan.
(b) 
The proposed commercial WECS project will not unreasonably interfere with the orderly land use and development plans of the Town of Wheatfield.
(c) 
The benefits to the applicant and the public of the proposed commercial WECS project will exceed any burdens.
(d) 
The proposed commercial WECS project will not be detrimental to the public health, safety or general welfare of the community.
(e) 
The proposed commercial WECS project shall comply with all required provisions of the Zoning Code, unless variances have been properly applied for and granted pursuant to the Zoning Code of the Town of Wheatfield.[1]
[1]
Editor's Note: See § 200-93 in the Zoning chapter.
G. 
The Planning Board may grant the special use permit, deny the special use permit, or grant the special use permit with written stated conditions. Denial of the special use permit shall be by written decision based upon substantial evidence submitted to the Board. Upon issuance of the special use permit, the applicant shall obtain a building permit for each tower.
H. 
The Planning Board shall have the authority to waive any of the requirements of this commercial WECS chapter, provided that any waivers are only granted for extenuating circumstances and do not reduce the intent or protection of the chapter.
(1) 
In granting any waivers, the Planning Board shall take into consideration:
(a) 
The benefit of the waiver weighed against the detriment to the health, safety and welfare of the adjacent properties and community; and
(b) 
Whether an undesirable change will be produced in the character of the project or neighborhood or a detriment to nearby properties will be created by the waiving of certain requirements.
(2) 
The Planning Board, in waiving any requirements, shall grant the minimum waivers deemed necessary. The Board must provide, in writing, its reasoning for issuing waivers.
I. 
Before a commercial WECS special use permit can be assigned or transferred to another operator or owner, notification shall be given to the Planning Board and the new operator or owner shall be made aware of and accept the conditions of the commercial WECS special use permit.
J. 
Amendments to special use permit. Any changes or alterations post construction to the commercial WECS shall be done only by amendment to the special use permit and subject to all requirements of this article.
K. 
Repair to or replacement of a commercial WECS. Any repairs made to any component of a commercial WECS or any replacement of any component of a commercial WECS with a similar component, provided the use, size and character are not altered and requirements of the special use permit are not violated, shall be done only by review and approval of the Building Inspector.

§ 198-4 Wind measurement towers.

The Town of Wheatfield acknowledges that, prior to construction of a commercial wind energy conversion system, a wind site assessment is conducted to determine the wind speeds and feasibility of using particular sites. Installation of wind measurement towers, also known as anemometer ("met") towers, shall be permitted by special use permit in the same zoning districts as the commercial WECS.
A. 
An application for a wind measurement tower shall include:
(1) 
Name, address and telephone number of the applicant. If the applicant is represented by an agent, the application shall include the name, address and telephone number of the agent as well as an original signature of the applicant authorizing the representation.
(2) 
Name, address and telephone number of the property owner. If the property owner is not the applicant, the application shall include a letter or other written permission signed by the property owner confirming that the property owner is familiar with the proposed application and authorizing the submission of the application.
(3) 
Address of each proposed tower site, including Tax Map section, block and lot number.
(4) 
Site plan.
(5) 
Decommissioning plan, including a security bond or cash for removal.

§ 198-5 Permit revocation.

A. 
Testing fund. A commercial WECS special use permit shall contain a requirement that the applicant fund periodic noise testing by a qualified independent third-party acoustical measurement consultant, which may be required as often as every two years or more frequently upon request of the Town of Wheatfield Town Board in response to complaints by residents. The scope of the noise testing shall be to demonstrate compliance with the terms and conditions of the special use permit and this article and shall also include an evaluation of any complaints received by the Town. The applicant shall have 90 days after written notice from the Town Board to cure any deficiency. An extension of the ninety-day period may be considered by the Town Board, but the total period may not exceed 180 days.
B. 
Operation. A commercial WECS shall be maintained in operational condition at all times, subject to reasonable maintenance and repair outages. "Operational condition" includes meeting all noise requirements and other permit conditions. Should a commercial WECS become inoperable, or should any part of the commercial WECS be damaged, or should a commercial WECS violate permit conditions, the owner or operator shall remedy the situation within 90 days after written notice from the Town Board. The applicant shall have 90 days after written notice from the Town Board to cure any deficiency. An extension of the ninety-day period may be considered by the Town Board, but the total period may not exceed 180 days.
C. 
Notwithstanding any other abatement provision under this article, if the commercial WECS is not repaired or made operational or brought into permit compliance after said notice, the Town Board may, after a public hearing at which the operator or owner shall be given opportunity to be heard and present evidence, including a plan to come into compliance, order either remedial action within a particular time frame or order revocation of the commercial WECS special use permit and require the removal of the commercial WECS within 90 days. If the commercial WECS is not removed, the Town Board shall have the right to use the security posted as part of the decommission plan to remove the commercial WECS.

§ 198-6 Fees; costs.

A. 
All fees shall be approved by the Town Board by resolution. Nothing in this article shall be read as limiting the ability of the Town to enter into host community agreements with any applicant to compensate the Town for expenses or impacts on the community. The Town shall require any applicant to enter into an escrow agreement to pay the engineering and legal costs of any application review, including the review required by SEQRA.

§ 198-7 Enforcement; penalties for offenses; remedies for violations.

A. 
Any person owning, controlling or managing any building, structure or land who shall undertake the construction or operation of a commercial WECS in violation of this article or in noncompliance with the terms and conditions of any permit issued pursuant to this article or any order of the Code Enforcement Officer and any person who shall assist in so doing shall be guilty of an offense and subjected to a fine of not more than $250 or to imprisonment for a period of not more than six months, or both. Every such person shall be deemed guilty of a separate offense for each week such violation shall continue. The Town may institute a civil proceeding to collect civil penalties in the amount of $250 for each violation, and each week said violation continues shall be deemed a separate violation.
B. 
In case of any violation or threatened violation of any of the provisions of this article, including the terms and conditions imposed by any permit issued pursuant to this article, in addition to other remedies and penalties herein provided, the Town may institute any appropriate action or proceeding to prevent such unlawful erection, structural alteration, reconstruction, moving and/or use and to restrain, correct or abate such violation to prevent the illegal act.
[Adopted 12-14-2009 by L.L. No. 3-2009[1]]
[1]
Editor's Note: This ordinance superseded former Art. II, Residential WECS, adopted 9-15-2008 by L.L. No. 8-2008.

§ 198-8 Definitions.

As used in this article, the following terms shall have the meanings indicated:
RESIDENTIAL WIND ENERGY CONVERSION SYSTEM
A wind energy conversion system consisting of one wind turbine, one tower, and associated control or conversion electronics, which has a rated capacity of not more than 250 kilowatts and a total height of not more than 150 feet, and is intended to solely supply electrical power for the use on the subject property.
TOTAL HEIGHT (also "maximum overall height")
The height of the wind energy conversion system measured from the ground elevation to the top of the tip of the blade in the vertical position.
TOWER
The support structure, including guyed, monopole and lattice types, upon which a wind turbine and other mechanical devices are mounted.
TOWER HEIGHT
The height above grade of the uppermost fixed portion of the tower, excluding the length of any axial rotating turbine blades.
WIND ENERGY CONVERSION SYSTEMS
One or more mechanical devices which are designed and used to convert wind energy into a form of electric energy for sale or redistribution to others.
WIND MEASUREMENT TOWER
A tower used for the measurement of meteorological data, such as temperature, wind speed and wind direction.
WIND TURBINE
Any piece of electricity-generating equipment that converts wind energy into electrical energy through the use of airfoils, rotating turbine blades, or similar devices to capture the wind.

§ 198-9 Residential wind energy conversion systems (WECS).

A. 
The placement, construction and major modification of all residential WECS within the boundaries of the Town of Wheatfield shall be permitted only by special use permit on an operable farm, as defined by the Town of Wheatfield Assessor's Office, within an Agriculture-Residential (A-R) Zoning District, upon concurrent site plan approval issued by the Town of Wheatfield Planning Board, as provided herein, after SEQR review, with the Town of Wheatfield Planning Board designated as lead agency, and upon issuance of a building permit, and shall be subject to all provisions of this Code.
B. 
Applications under this article shall be made as follows:
(1) 
Applicants for a special use permit to place, construct, or modify residential WECS within the Town of Wheatfield shall submit the following information to the Planning Board for its referral to a professional engineer or consultant for review and recommendation:
(a) 
Name and address of the applicant.
(b) 
Evidence that the applicant is the owner of the property involved or has the written permission of the owner to make such an application.
(c) 
A site plan drawn in sufficient detail to show the following:
[1] 
Location of the tower(s) on the site and the tower height, including blades, wind turbine diameter, and ground clearance;
[2] 
Dimensional representation of the various structural components of the tower construction, including the base and footing;
[3] 
Property lot lines and the location and dimensions of all existing structures and uses on site within 300 feet of the residential WECS;
[4] 
Proposed plan for restoration after construction according to NYS Agriculture and Markets and NYS Department of Environmental Conservation guidelines;
[5] 
Certification by a professional engineer licensed in the State of New York that the tower's design is sufficient to withstand wind-loading requirements for structures as established by the New York State Uniform Construction Code; and
[6] 
Wind characteristics and dominant wind direction from which 50% or more of the energy contained in the wind flows.
(d) 
Specific information on the type, size, height, rotor material, rated power output, performance, safety, and noise characteristics of all residential WECS.
(e) 
Photographs or detailed drawings of each wind turbine model, including the tower and foundation.
(f) 
A noise report shall be furnished, which shall include the following:
[1] 
A description and map of the project's noise-producing features, including the range of noise levels expected and the tonal and frequency characteristics expected. The noise report shall include low frequency, infrasound, pure tone, and repetitive/impulsive sound;
[2] 
A description and map of the noise-sensitive environment, including any sensitive noise receptors, i.e., residences, hospitals, libraries, schools, places of worship, and other facilities where quiet is important within two miles of the proposed facilities;
[3] 
A survey and report prepared by a qualified engineer that analyzes the preexisting ambient noise regime (including seasonal variation), including, but not limited to, separate measurements of low frequency and A-weighted noise levels across a range of wind speeds (including near cut-in), turbulence measurements, distance from the turbines, location of sensitive receptors relative to wind direction, and analyses at affected sensitive receptors located within two miles of the proposed project site;
[4] 
A description and map showing the potential noise impacts, including estimates of expected noise impacts upon construction and operation workers and estimates of expected noise levels at sensitive receptor locations;
[5] 
A description of the projects proposed noise-control features, including specific measures proposed to protect workers and specific measures proposed to mitigate noise impacts for sensitive receptors consistent with levels in this Code; and
[6] 
Manufacturers' noise design and field testing data, both audible (dBA) and low frequency (deep bass vibration) for all proposed structures.
(g) 
A geotechnical report (by a licensed professional) shall be furnished which shall, at a minimum, include the following:
[1] 
Foundation design criteria for all proposed structures.
(h) 
A report from the turbine manufacturer stating the wind speed and conditions that the wind turbine is designed to withstand (including all assumptions).
(i) 
A copy of written notification to the Federal Aviation Administration (FAA), the local Air Force base, and Mercy Flight.
(j) 
Utility interconnection data and a copy of a written notification to the utility of the proposed interconnection.
(k) 
Notification to microwave communications link operators: An application that includes any residential WECS which is located within two miles of any microwave communications link shall be accompanied by a copy of a written notification to the operator of the link.
(l) 
An application that includes any residential WECS which is located within a one-hundred-year floodplain area, as such flood hazard areas are shown on the floodplain maps, shall be accompanied by a detailed report which shall address the potential for wind erosion, water erosion, sedimentation, and flooding, and which shall propose mitigation measures for such impacts.
(m) 
Such additional information as may be reasonably requested by the Town Engineer or Planning Board.
C. 
Special use permits issued for residential WECS shall be subject to the following conditions.
(1) 
Minimum lot area:
(a) 
The minimum lot area of a farm where a residential WECS can be located shall be five acres.
(2) 
Setbacks. Any residential WECS shall adhere to the following setbacks.
(a) 
From all property lines:
[1] 
A minimum 1 1/2 times the total height of the residential WECS from any property line.
(b) 
From residential zoning districts:
[1] 
A minimum 500 feet from any residential zoning district boundary line.
(c) 
From buildings or structures:
[1] 
A minimum 1 1/2 times the total height of the residential WECS from any building or structure; and
[2] 
A minimum of 500 feet from any dwelling regardless of the zoning district in which the structure exists.
(d) 
From public roads and railroads:
[1] 
A minimum 1 1/2 times the total height of the residential WECS from any public road or railroad; and
[2] 
Where the lot line abuts a public right-of-way, the setbacks specified above shall be measured from the center line of such right-of-way.
(e) 
From aboveground transmission lines greater than 12 kilovolts:
[1] 
A minimum 1 1/2 times the total height of the residential WECS from any aboveground transmission line greater than 12 kilovolts.
(f) 
Notwithstanding the provisions set forth in these subsections, such setbacks from property lines do not apply if the application is accompanied by a legally enforceable agreement that runs with the property for a period of 25 years or the life of the special use permit, whichever is longer, that the adjacent landowner(s) agrees to the elimination of the required setbacks. Any agreement to the elimination of such property line setbacks shall not constitute the reduction or elimination of required setbacks from structures, as previously identified, and such setbacks from structures, for safety reasons, shall not be reduced or eliminated.
(3) 
Maximum overall height:
(a) 
The maximum overall height of any residential WECS shall be 100 feet. The maximum height shall be measured from the ground elevation to the top of the tip of the blade in the vertical position.
(4) 
Only one residential WECS per legal lot shall be allowed, or as determined by the Planning Board.
(5) 
The power produced from the residential WECS shall only be used for on-site consumption and at no times shall electricity be distributed across property lines.
(6) 
Residential WECS shall be located in rear yards.
(7) 
Notification of adjacent property owners:
(a) 
All applicants are required to notify all property owners within 1,000 feet of the property line of the proposed parcel where the residential WECS will be erected.
(b) 
The adjacent property owners shall be notified by the Town Clerk in writing within 10 days of the filing of an application for a residential WECS special use permit with the Town of Wheatfield. This notification shall include the size, location, and planned construction date of the residential WECS.
(8) 
Signage:
(a) 
No advertising sign or logo shall be placed or painted on any residential WECS.
(b) 
A residential WECS special use permit may allow the placement of the tower's manufacturer's logo on a system generator housing in an unobtrusive manner.
(9) 
Color and finish:
(a) 
Wind turbines and towers shall be painted a nonobtrusive (e.g., light environmental color such as white, gray, or beige) color that is nonreflective.
(b) 
The design of residential WECS buildings and related structures shall, to the extent reasonably possible, use materials, colors, textures, screening, and landscaping that will blend the facility to the natural setting and the existing environment.
(10) 
Lighting:
(a) 
Exterior lighting on any structure associated with the system shall not be allowed except that which is specifically required by the FAA.
(11) 
Compliance with regulatory agencies:
(a) 
The applicant is required to obtain all necessary regulatory approvals and permits from all federal, state, county, and local agencies having jurisdiction and approval related to the completion of the residential WECS.
(b) 
The applicant is required to submit a long environmental assessment form (EAF) with the Town of Wheatfield to comply with the SEQR process.
(12) 
Safety and security requirements:
(a) 
Safety shutdown: Each residential WECS shall be equipped with both manual and automatic controls to limit the rotational speed of the blade within the design limits of the wind turbine. A manual electrical and/or over-speed shutdown disconnect switches shall be provided and clearly labeled on the residential WECS. No wind turbine shall be permitted that lacks an automatic braking, governing, or feathering system to prevent uncontrolled rotation, over-speeding, and excessive pressure on the tower structure, rotor blades, and wind turbine components.
(b) 
All structures which may be charged with lightning shall be grounded according to applicable electrical code.
(c) 
The blade tip of any wind turbine shall, at its lowest point, have ground clearance of not less than 30 feet.
(d) 
Wind turbine towers shall not be climbable up to 15 feet above ground level.
(e) 
All access doors to residential WECS structures and electrical equipment shall be lockable and shall remain locked at all times when operator personnel are not present.
(f) 
Anchor points for any guy wires for a system tower shall be located with the property that the system is located on and not on or across any aboveground electric transmission or distribution lines. The point of attachment for the guy wires shall be enclosed by a fence six feet high or sheathed in bright orange or yellow covering to eight feet above the ground. The minimum setback for the guy wire anchors shall be 10 feet from the property boundary.
(g) 
Appropriate warning signage shall be placed on wind turbine towers and electrical equipment. Signage shall also include one twenty-four-hour emergency contact number to the owner of the wind turbine as well as signage warning of electrical shock or high voltage and harm from revolving machinery.
(13) 
Noise requirements:
(a) 
The audible noise standard due to wind turbine operations shall not be created which causes the noise level at the boundary of the proposed project site to exceed 45 dBA for more than five minutes out of any one-hour time period or to exceed 50 dBA for any time period.
(b) 
A residential WECS shall not be operated so that impulsive sound below 20 Hz adversely affects the habitability or use of any dwelling unit, hospital, school, library, nursing home, or other sensitive noise receptor.
(14) 
Impact on wildlife species and habitat:
(a) 
Development and operation of a residential WECS shall not have a significant adverse impact on endangered or threatened fish, wildlife, or plant species or their critical habitats.
(b) 
Development and operation of a residential WECS shall not have an adverse impact on migratory bird species.
(15) 
Interference with residential television, microwave, and radio reception:
(a) 
The applicant must submit information that the proposed construction of the residential WECS will not cause interference with microwave transmissions, cellular transmissions, residential television interference, or radio reception of domestic or foreign signals.
(b) 
The applicant shall include specific measures proposed to prevent interference, a complaint procedure, and specific measures proposed to mitigate interference impacts.
(16) 
Interference with aviation navigational systems:
(a) 
No residential WECS shall be installed or operated in a manner that causes interference with the operation of any aviation facility.
(b) 
All residential WECS sitings shall comply with FAA regulations.
(17) 
Unsafe and inoperable residential WECS; site reclamation:
(a) 
Unsafe residential WECS, inoperable residential WECS, and residential WECS for which the special use permit has expired shall be removed by the owner. All safety hazards created by the installation and operation of the residential WECS shall be eliminated, and the site shall be restored to its natural condition to the extent feasible. A bond or other appropriate form of security shall be required to cover the cost of the removal and site restoration.
(b) 
Every unsafe residential WECS and every inoperable residential WECS is hereby declared a public nuisance, which shall be subject to abatement by repair, rehabilitation, demolition, or removal. An inoperable residential WECS shall not be considered a public nuisance, provided that the owner can demonstrate that modernization, rebuilding, or repairs are in progress or planned and will be completed within no more than six months.
(c) 
A residential WECS shall be deemed inoperable if it has not generated power within the preceding six months.
(18) 
Erosion control:
(a) 
Before the Town of Wheatfield shall issue a grading or building permit for the residential WECS, the applicant shall submit an erosion control plan to the Engineering Department for its review and approval.
(b) 
The plan shall minimize the potential adverse impacts on wetlands and Class I and II streams and the banks and vegetation along those streams and wetlands and minimize erosion or sedimentation.
(19) 
Certification:
(a) 
The foundation, tower, wind turbine, and compatibility of the tower with related equipment shall be certified in writing by a structural engineer registered in New York State. The engineer shall certify compliance with good engineering practices and compliance with the appropriate provisions of the Uniform Construction Code that has been adopted in New York State.
(b) 
After completion of the residential WECS, the applicant shall provide a post-construction certification from a professional engineer licensed in the State of New York that the project complies with applicable codes and industry practices and has been completed according to the design plans.
(c) 
The electrical system shall be certified in writing by an electrical engineer registered in New York. The engineer shall certify compliance with good engineering practices and with the appropriate provisions of the Electric Code that has been adopted by New York State.
(d) 
The wind turbine over-speed control system shall be certified in writing by a mechanical engineer registered in New York State. The engineer shall certify compliance with good engineering practices.
(e) 
A certificate of completion must be supplied by the applicant and approved by the Town of Wheatfield Code Enforcement Officer.
D. 
Monitoring requirements for residential WECS:
(1) 
Upon reasonable notice, Town of Wheatfield officials or their designated representatives may enter a lot on which a residential WECS special use permit has been granted for the purpose of compliance with any permit requirements. Twenty-four hours' advance notice by telephone to the owner/operator or designated contact person shall be deemed reasonable notice.
(2) 
Unless waived by the Planning Board, a residential WECS shall be inspected annually by a professional engineer licensed in the State of New York that has been approved by the Town or at any other time, upon a determination by the Town's Code Enforcement Officer, that the wind turbine, tower, or other residential WECS components have sustained structural damage, and a copy of the inspection report shall be submitted to the Town Code Enforcement Officer. Any fee or expense associated with this inspection shall be borne entirely by the permit holder.
(3) 
General complaint process:
(a) 
During construction, the Town of Wheatfield Code Enforcement Officer can issue a stop order at any time for any violations of the special use permit.
(b) 
After construction is complete, the permit holder shall establish a contact person, including name and phone number, for receipt of any complaint concerning any permit requirements. Upon receipt of a complaint from the Town of Wheatfield Code Enforcement Officer, the permit holder/contact person shall have seven working days to reply to the Town in writing.
E. 
Application fees and costs:
(1) 
The applicant shall pay all costs associated with the Town of Wheatfield's review and processing of the application. The applicant shall submit a deposit with the application in the amount as determined by resolution by the Town Board. The Town of Wheatfield may require additional deposits to cover the costs of reviewing and processing the application. Such additional deposits, if requested, shall be promptly submitted by the applicant. Following action on the application, any unused amount of the deposit(s) shall be returned to the applicant with a summary of the costs incurred.
(2) 
The applicant shall pay a permit fee, in the amount as determined by resolution of the Town Board, to cover the costs incurred by the Town associated with a residential WECS special use permit and building permit, such as administration, inspections and enforcement.
(3) 
Prior to the issuance of a building permit, the applicant shall document that all applicable federal, state, county and local permits have been obtained.
(4) 
Prior to the issuance of a building permit, the applicant shall provide the Town Clerk with proof of insurance in a sufficient dollar amount to cover potential personal and property damage associated with construction and operation thereof.
F. 
Findings:
(1) 
Findings necessary to grant a residential WECS special use permit: In order to grant a residential WECS special use permit, the Town of Wheatfield shall review the application, all filings by any other party, and conduct a public hearing. A residential WECS special use permit shall not be granted unless the Town of Wheatfield Planning Board makes the following findings based on substantial evidence:
(a) 
The proposed residential WECS project is consistent with the Town of Wheatfield Comprehensive Plan.
(b) 
The proposed residential WECS project will not unreasonably interfere with the orderly land use and development plans of the Town of Wheatfield.
(c) 
The benefits to the applicant and the public of the proposed residential WECS project will exceed any burdens.
(d) 
The proposed residential WECS project will not be detrimental to the public health, safety, or general welfare of the community.
(e) 
The proposed residential WECS project shall comply with all required provisions of the Zoning Code,[1] unless variances have been properly applied for and granted by the Town of Wheatfield Board of Zoning Appeals.
[1]
Editor's Note: See Ch. 200, Zoning.
G. 
The Planning Board may grant the special use permit, deny the special use permit, or grant the special use permit with written stated conditions. Denial of the special use permit shall be by written decision based upon substantial evidence submitted to the Board. Upon issuance of the special use permit, the applicant shall obtain a building permit for each tower.
H. 
The Planning Board, on request from the applicant, shall have the authority to waive any of the requirements of this article, except for zoning districts in which residential WECS are permitted by special use permit; Subsections C(1) minimum lot size; C(2) setbacks; C(3) height regulations; and C(4), number of residential WECS per lot, can only be reduced through a variance obtained from the Town of Wheatfield Zoning Board of Appeals. The Planning Board must provide, in writing, its reasoning for issuing waivers.
I. 
Any changes or alterations post construction to the residential WECS shall be done only by amendment to the special use permit and subject to all requirements of this article.

§ 198-10 Permit revocation.

A. 
A residential WECS shall be maintained in operational condition at all times, subject to reasonable maintenance and repair outages. "Operational condition" includes meeting all noise requirements and other permit conditions. Should a residential WECS become inoperable, or should any part of the residential WECS be damaged, or should a residential WECS violate permit conditions, the owner or operator shall remedy the situation within 90 days after written notice from the Town Board. The applicant shall have 90 days after written notice from the Town Board to cure any deficiency. An extension of the ninety-day period may be considered by the Town Board, but the total period may not exceed 180 days.
B. 
Notwithstanding any other abatement provision under this article, if the residential WECS is not repaired or made operational or brought into permit compliance after said notice, the Town Board may, after a public hearing at which the operator or owner shall be given opportunity to be heard and present evidence, including a plan to come into compliance, order either remedial action within a particular time frame or order revocation of the residential WECS special use permit and require the removal of the residential WECS within 90 days. If the residential WECS is not removed, the Town Board shall have the right to use the security posted as part of the decommission plan to remove the residential WECS.

§ 198-11 Fees and costs.

All fees shall be approved by the Town Board by resolution. Nothing in this article shall be read as limiting the ability of the Town to enter into host community agreements with any applicant to compensate the Town for expenses or impacts on the community. The Town shall require any applicant to enter into an escrow agreement to pay the engineering and legal costs of any application review, including the review required by SEQRA.

§ 198-12 Enforcement; penalties for offenses; remedies for violations.

A. 
Any person owning, controlling or managing any building, structure or land who shall undertake the construction or operation of a residential WECS in violation of this article or in noncompliance with the terms and conditions of any permit issued pursuant to this article or any order of the Code Enforcement Officer, and any person who shall assist in so doing, shall be guilty of an offense and subjected to a fine of not more than $250 or to imprisonment for a period of not more than six months, or both. Every such person shall be deemed guilty of a separate offense for each week such violation shall continue. The Town may institute a civil proceeding to collect civil penalties in the amount of $250 for each violation, and each week said violation continues shall be deemed a separate violation.
B. 
In case of any violation or threatened violation of any of the provisions of this article, including the terms and conditions imposed by any permit issued pursuant to this article, in addition to other remedies and penalties herein provided, the Town may institute any appropriate action or proceeding to prevent such unlawful erection, structural alteration, reconstruction, moving and/or use, and to restrain, correct, or abate such violation, to prevent the illegal act.