Town of Rotterdam, NY
Schenectady County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Rotterdam 10-8-2008 by L.L. No. 10-2008. Amendments noted where applicable.]
GENERAL REFERENCES
Electrical inspections — See Ch. 112.
Noise — See Ch. 188.
Subdivision of land — See Ch. 249.
Zoning — See Ch. 269.

§ 269-1 Title.

This chapter may be cited as the "Town of Rotterdam wind energy facility Law."

§ 269-2 Purpose.

The purpose of this chapter is to guide the construction and operation of wind energy facilities, small wind energy facilities and wind measurement towers in the Town of Rotterdam, Schenectady County, subject to reasonable conditions that will protect the public health, safety and welfare.

§ 269-3 Authority.

The Town Board of the Town of Rotterdam enacts this chapter under the authority granted by § 10 of the Municipal Home Rule Law.

§ 269-4 Applicability.

The requirements of this chapter shall apply to all wind energy facilities, small wind energy facilities and wind measurement towers proposed, operated, modified, or constructed within the municipal boundaries of the Town of Rotterdam, Schenectady County. Wind energy facilities, small wind energy facilities and wind measurement towers shall be allowed throughout all areas of the Town subject to the requirements of this chapter.

§ 269-5 Permits.

A. 
Permit requirement. No wind energy facility, small wind energy facility or wind measurement tower shall be constructed, reconstructed, modified, or operated in the Town of Rotterdam except by first obtaining, as applicable, a wind energy facility permit, small wind energy facility permit or wind measurement tower permit as provided under this chapter.
B. 
Permitting authority. The Town of Rotterdam Planning Board as established pursuant to § 270-179 of the Zoning Law of the Town shall have sole discretion to review, consider and issue wind energy facility permits, small wind energy facility permits and wind measurement tower permits in accordance with this chapter.
C. 
Exemptions. In the event that an applicant or permittee intends to undertake in-kind replacement of a wind energy facility, small wind energy facility or wind measurement tower, the Town Code Enforcement Officer, Building Inspector or other Town designee shall be notified prior to any such replacement. The Town Code Enforcement Officer, Building Inspector or other Town designee may approve such in-kind replacement or refer the applicant or permittee to the Planning Board to determine whether a wind energy facility, small wind energy facility or wind measurement tower permit must first be obtained.

§ 269-6 Definitions.

As used in this chapter, the following terms shall have the meanings indicated:
ACCESSORY FACILITIES OR EQUIPMENT
Any structure other than a wind turbine, related to the use and purpose of deriving, collecting or distributing energy from such wind turbines located on or associated with a wind energy facility, small wind energy facility or wind measurement tower.
PERMIT
A permit issued pursuant to this chapter granting the holder the right to construct, maintain and operate a wind energy facility, small wind energy facility or wind measurement tower.
PUBLIC ROAD
Any federal, state, county, city, Town or village road which is open to the public, or private road regularly used by multiple persons for access to separate off-site parcels of land, access to which is unrestricted by the owner(s) of said private road.
RESIDENCE
Any dwelling located off-site which is suitable for habitation on the date a wind energy facility, small wind energy facility or wind measurement tower permit application is received by the Town and deemed complete by the Planning Board in accordance with § 269-9 of this chapter, and for which a valid certificate of occupancy has been issued or should have been issued prior to such date. A residence may be part of a multifamily dwelling or multipurpose building, and shall include buildings such as hotels or motels, hospitals, day-care centers, dormitories, sanitariums and nursing homes.
SETBACK AGREEMENT
Any agreement, contract, easement, covenant or right in land which burdens land for the benefit of an applicant or permittee, such that the burdened land is similar in character to land on which any wind energy facility is located. A setback agreement must expressly release any right which the owner(s) of such burdened land may have in the enforcement of this chapter, and acknowledge the applicable requirements of this chapter. All setback agreements shall run with the land and be recorded to apprise any potential purchasers of such land of the same at least for as long as any permit issued under this chapter shall remain in effect. In the event a setback agreement lapses prior to full decommissioning of the wind energy facility, small wind energy facility or wind measurement tower, the previously burdened land shall be considered off-site and the applicant, permittee or owner of the same shall be required to bring the project into conformance with the requirements of this chapter.
SITE
The parcel(s) of land where a wind energy facility, small wind energy facility or wind measurement tower is to be placed. The site can be publicly or privately owned by an individual or a group of individuals controlling single or adjacent properties. Where multiple lots are in joint ownership, the combined lots shall be considered as one for purposes of applying setback requirements. Any property which has a wind energy facility, small wind energy facility or wind measurement tower or has entered an agreement for said facility or a setback agreement shall not be considered "off-site."
SMALL WIND ENERGY FACILITY
A wind energy conversion system consisting of a wind turbine, a tower, and associated control or conversion electronics and electrical collection and distribution equipment, and accessory facilities or equipment, which has a nameplate capacity of not more than 100 kilowatts.
TOTAL HEIGHT
The highest point above ground level of any improvement related to a wind energy facility, small wind energy facility or wind measurement tower. Total height as applied to wind turbines shall include the highest point of any wind turbine blade above the tower.
WIND ENERGY FACILITY
Any wind turbine or array of wind turbines designed to deliver electricity to the power grid for sale with a combined production capacity of more than 100 kilowatts, including all related infrastructure, electrical collection and distribution lines and substations, access roads and accessory structures, including accessory facilities or equipment.
WIND MEASUREMENT TOWER
A tower used for the measurement of meteorological data such as temperature, wind speed and wind direction.
WIND TURBINE
A wind energy conversion system consisting of turbine blades and hub connected to a drive train and electrical generator housed in a nacelle mounted on a tower together with associated control or conversion electronics and equipment.

§ 269-7 Application requirements.

A complete application for a wind energy facility permit, small wind energy facility permit or wind measurement tower permit shall include:
A. 
A completed application for a permit on a form provided by the Town Zoning Officer, Code Enforcement Officer or other Town designee.
B. 
A site plan prepared by a licensed professional engineer, including:
(1) 
Property lines and physical dimensions of the site;
(2) 
Location, approximate dimensions and types of existing structures and uses on the site, public roads, and adjoining properties within 500 feet of the boundaries of any proposed wind turbine, accessory facilities or equipment, or 1 1/2 times the total height of such wind turbines, whichever shall be greater;
(3) 
Location of each proposed wind turbine, wind measurement tower and accessory facilities or equipment;
(4) 
Location of all above- and below-ground utility lines on the site as well as transformers, the interconnection point with transmission lines, and other ancillary facilities or structures, including, without limitation, accessory facilities or equipment;
(5) 
Locations of setback distances as required by this chapter;
(6) 
All other proposed facilities, including, without limitations, access roads, electrical substations, storage or maintenance units, and fencing;
(7) 
All site plan application materials required under § 270-129 of the Zoning Law of the Town of Rotterdam; and
(8) 
Such other information as may be required by the Planning Board.
C. 
The proposed make, model, picture and manufacturer's specifications of the proposed wind turbine and tower model(s), including noise decibel data, and material safety data sheet documentation for all materials used in the operation of the equipment shall be provided for each proposed wind turbine. If a particular wind turbine has not been selected by the applicant at the time of application due to a constraint as to the availability of equipment or the inability of the applicant to obtain appropriate supplier commitments, such information shall nevertheless be provided to the Planning Board with an acknowledgement that the type of wind turbine may be modified during application review.
D. 
A proposed lighting plan to be submitted to and reviewed by the Federal Aviation Administration for any structure equal to or more than 200 feet above ground, or as may otherwise be required by the Federal Aviation Administration or local, state or federal law or regulation.
E. 
A construction schedule describing anticipated commencement and completion dates, including a traffic analysis with a description of the routes to be used by construction and delivery vehicles.
F. 
An operations and maintenance plan providing for regular periodic maintenance schedules, any special maintenance requirements. Procedures and notification requirements for restarts during icing events should be proposed and established by the Planning Board.
G. 
List of property owners, with their mailing addresses, within 500 feet of the outer boundaries of the proposed site.
H. 
Application requirements for wind energy facilities only:
(1) 
A decommissioning plan that provides for an estimation of decommissioning costs, the method of ensuring that funds shall be available for decommissioning and restoration of the site and any off-site areas disturbed by or utilized during decommissioning, the method by which the decommissioning cost estimate and funding shall be kept current, and the manner in which the wind energy facility shall be decommissioned.
(2) 
A complaint resolution process to address complaints from nearby residents.
(3) 
A transportation plan (see § 269-13) describing routes to be used in delivery of project components, equipment and building materials and those to be used to provide access to the site during and after construction. Such plan shall also describe any anticipated improvements to existing roads, bridges or other infrastructure, as well as measures which will be taken to restore damaged/disturbed access routes following construction.
(4) 
A fire protection and emergency response plan to address emergency response and coordinate with local emergency response providers during any construction or operation phase emergency, hazard or other event and funding mechanism for any special first responder equipment and/or training if any, to address emergency/rescue situations.
(5) 
Predicted wind-turbine-only sound analysis.
(a) 
A sound level analysis shall be prepared to determine predicted sound levels at off-site property lines and residences from operation of wind turbines. Such analysis shall be referred to as "wind turbine Only Sound." The analysis shall include the sound level, dBA, for the wind turbine operating at rated power output and for the wind turbine shut down.
(b) 
Wind-turbine-only sound shall be predicted based upon appropriate ambient noise levels obtained from field or laboratory measurements of the wind turbine proposed to be installed. Daytime and nighttime ambient noise levels of the site and nearby off-site areas shall be determined for wind speeds corresponding to rated operation of the wind turbine and for wind speed of one meter/second or less.
(c) 
Except as otherwise provided herein, wind turbines shall be located so that predicted wind-turbine-only sound at ground-level property lines shall not exceed the appropriate ambient noise level by eight dBA, and wind-turbine-only sound at residences shall not exceed the appropriate ambient noise level by four dBA with the turbine operating or shut down. If the spectra of the wind-turbine-only sound contain dominant, steady pure tones, as for instance a whine, screech or hum, the standards for audible noise set forth in this subsection shall be reduced by four dBA. A pure tone is defined to exist if the one-third octave band sound pressure level in the band, including the tone, exceeds the average of the sound pressure levels of the two contiguous bands by five dBA for center frequencies of 500Hz or above, eight dBA for center frequencies between 160 Hz and 400 Hz, or by 15 dBA for center frequencies less than or equal 125 Hz. Exceedence of these noise standards shall be deemed a violation of the permit.
(d) 
Statement of projected noise measurements.
[1] 
The applicant shall provide a statement listing the existing and maximum future projected measurements of noise from the proposed wind energy conversion facility, measured in decibels Ldn (logarithmic scale, accounting for greater sensitivity at night), for the following:
[a] 
Existing or ambient: the measurements of existing noise.
[b] 
Existing plus the proposed wind energy conversion facility: maximum estimate of noise from the proposed facility plus the existing noise environment.
[2] 
Such statement shall be certified and signed by a qualified engineer, stating that noise measurements are accurate and meet the noise standards of this chapter and applicable state requirements.
(6) 
A post-construction sound monitoring plan shall be developed which, at a minimum, requires annual certification by a qualified engineer of the permittee or applicant to the Planning Board that the wind energy facility remains in conformance with the requirements of this chapter. If no complaints regarding noise are received in a five-year period from operation, the applicant may request that the annual certification be suspended.

§ 269-8 Environmental review.

A. 
Compliance with the State Environmental Quality Review Act ("SEQRA") shall be required.
B. 
Applicants shall submit the following materials to the Town of Rotterdam Planning Board:
(1) 
Small wind energy facilities and wind measurement towers: Applicants shall be required to prepare and submit Part 1 of a full environmental assessment form.
(2) 
Wind energy facilities: Applicants shall be required to prepare and submit a full environmental assessment form which, unless a lead agency other than the Planning Board has already been established in accordance with the requirements of the State Environmental Quality Review Act, shall be distributed by the Planning Board to all involved agencies prior to any determination of significance by the lead agency. All environmental impact statements for wind energy facilities shall contain, but not be limited to:
(a) 
A visual impact analysis, including:
[1] 
Mapping of scenic resources of statewide significance, as defined by the New York State Department of Environmental Conservation Visual Policy (Policy DEP-00-2), and of local significance, as officially listed by the relevant municipality within the study area.
[2] 
Viewshed mapping and/or cross-section analysis to identify areas (including the significant resources identified above) with potential views of the project.
[3] 
Description of the character and quality of the affected landscape.
[4] 
Photographic simulations of what the proposed project will look like from a reasonable number of representative viewpoints within the five-mile-radius study area to be selected in consultation with the Planning Board.
[5] 
Evaluation of the project's visual impact based on the viewshed mapping and photographic simulations described above.
[6] 
Recommended visual mitigation measures (in accordance with DEC Policy DEP-00-2), if warranted, based on the results of the impact evaluation described above.
(b) 
An avian impact study: Appropriate bird and bat migration, nesting and habitat studies shall be submitted. The applicant shall solicit input from the New York State Department of Environmental Conservation on such studies and shall follow any required protocols established, adopted or promulgated by the Department.
(c) 
Archaeological and architectural impact analysis: The applicant shall solicit input from the New York State Historic Preservation Office.
(d) 
Fiscal and economic impact analysis.
(e) 
An assessment of potential electromagnetic interference with microwave, radio, television, personal communication systems, 911 and other wireless communication.
(f) 
An assessment of potentially impacted wetland, surface water and groundwater resources, and the geology and land use of the site, as well as an assessment of construction phase impacts, traffic impacts and adverse sound impacts which may arise from project construction or operation.
(g) 
An assessment of potential shadow flicker at off-site residences and roadways.

§ 269-9 Application review process.

A. 
Applicants must arrange a preapplication meeting with the Department of Public Works and consultants retained by the Town for application review.
B. 
Following the preapplication meeting, 12 copies of the application shall be submitted to the Town Planner or other Town designee. Payment of all application fees shall be made at the time of submission.
C. 
The Planning Board shall hold at least one public hearing on the application. Notice shall be published in the Town's official newspaper, no less than five days before any hearing, but, where any hearing is adjourned by the Planning Board to hear additional comments, no further publication shall be required. The public hearing may be combined with public hearings on any environmental impact statement or requested waivers. All adjoining property owners within 1,500 feet of the outer boundary of the site shall be given written notice of a public hearing via certified mail at the expense of the applicant.
D. 
Notice of the project shall also be given in accordance with the General Municipal Law.
E. 
Following the holding of the public hearing and completion of the SEQRA process, the Planning Board may approve, approve with conditions, or deny the permit application, in accordance with the standards in this chapter. All approvals and denials shall be in writing, setting forth competent reasons for such approval or denial.

§ 269-10 Wind energy facility development standards.

The following standards shall apply to wind energy facilities only:
A. 
Unless an environmental constraint prohibits burial, all power transmission lines from the tower to any building, substation, or other structure shall be located underground in accordance with National Electrical Code standards, unless an environmental constraint requires such transmission lines to be located above ground.
B. 
Wind turbines and towers must be white in color.
C. 
No advertising signs are allowed on any part of the wind energy facility, including fencing and support structures.
D. 
No tower shall be lit except to comply with Federal Aviation Administration (FAA) requirements. Minimum security lighting for ground-level facilities shall be allowed as approved on the wind energy facility development plan.
E. 
The wind energy facility shall be designed to minimize the impacts of land clearing and the loss of important open spaces. Development on agricultural lands shall follow the Guidelines for Agricultural Mitigation for Wind Power Projects published by the New York State Department of Agriculture and Markets.
F. 
Stormwater run-off and erosion control shall be managed in a manner consistent with all applicable local, state and federal laws and regulations and such standards as shall be applied by the Planning Board on the advice of the Town consultants.
G. 
Wind turbines shall be located in a manner that minimizes shadow flicker on residences and roadways.
H. 
No wind energy facility shall be installed in any location where its proximity with existing fixed broadcast, retransmission, or reception antennas for radio, television, or wireless phone or personal communication systems would produce electromagnetic interference with signal transmission or reception. No wind energy facility shall be installed in any location along the major axis of an existing microwave communications link where its operation is likely to produce electromagnetic interference in the link's operation. If it is determined that a wind energy facility is causing electromagnetic interference, the operator shall take the necessary corrective action to eliminate this interference, including relocation or removal of the facilities, or resolution of the issue with impacted parties.

§ 269-11 Setbacks, noise and height limits.

A. 
Except as provided herein, each wind turbine associated with a wind energy facility shall be set back as follows:
(1) 
A distance no less than 1,500 feet from residences.
(2) 
A distance no less than the greater of 1.5 times the total height of the wind turbine or 500 feet from off-site property boundaries.
(3) 
A distance no less than the greater of 1.5 times the total height of the wind turbine or 500 feet from public roads.
B. 
Small wind energy facility wind turbines and wind measurement towers shall be set back from off-site property boundaries at least 1.5 times the structure height.
C. 
Except as provided herein, the sound pressure level generated by a wind energy facility or small wind energy facility shall not exceed the sound levels required and established in accordance with § 269-7H(5)(c) of this chapter. Compliance shall periodically be determined by the Town Code Enforcement Officer, or such other officer or employee which the Town Board may designate. This shall be the only project operation phase noise requirement applicable to a project under this chapter, except that the Planning Board may impose appropriate additional requirements in accordance with § 269-14 of this chapter.
D. 
The setback and noise requirements set forth at Subsections A, B and C of this § 269-11 shall not apply in the event that a proper setback agreement is obtained by the permittee or applicant, or if the property is on-site.
E. 
Wind energy facilities shall not exceed 500 feet in total height. Small wind energy facility wind turbines and wind measurement towers shall not exceed 200 feet in total height. Any small wind energy facility wind turbine or wind measurement tower which exceeds 200 feet in total height shall be reviewed by the Planning Board and considered a wind energy facility for purposes of this chapter, except that the preparation of a draft environmental impact statement shall be at the discretion of the Planning Board and in accordance with the State Environmental Quality Review Act.
F. 
Prior to issuance of a building permit for wind energy facilities only, the applicant shall provide the Town proof, in the form of a duplicate insurance policy or a certificate issued by an insurance company, of liability insurance, of a level to be determined by the Town Board in consultation with the Town's insurer, to cover damage or injury which might be caused by or result from the operation or maintenance of such wind energy facility.

§ 269-12 Required site safety measures.

A. 
All wind turbines shall have an automatic braking, governing or feathering system to prevent uncontrolled rotation, overspeeding and excessive pressure on the tower structure, rotor blades and turbine components.
B. 
With the exception of electrical collection and distribution lines, accessory facilities or equipment shall be gated, fenced or secured appropriately to prevent unrestricted public access to the facilities.
C. 
Warning signs shall be posted at the entrances to the wind energy facility and at the base of each tower warning of electrical shock or high voltage and containing emergency contact information.
D. 
The minimum distance between the ground and any part of the rotor or blade system shall be 30 feet for any wind turbine associated with a wind energy facility, and 15 feet for any wind turbine associated with a small wind energy facility.
E. 
Wind energy facilities shall be designed to prevent unauthorized external access to electrical and mechanical components and shall have access doors that are kept securely locked at all times.
F. 
Prior to issuance of a building permit for wind energy facilities only, the applicant shall provide the Town proof, in the form of a duplicate insurance policy or a certificate issued by an insurance company, of liability insurance, of a level to be determined by the Town Board in consultation with the Town's insurer, to cover damage or injury which might be caused by or result from the operation or maintenance of such wind energy facility.

§ 269-13 Traffic routes and road maintenance.

The provisions of this section shall apply to wind energy facilities only.
A. 
Designated traffic routes for construction and delivery vehicles to minimize traffic impacts, wear and tear on local roads and impacts on local business operations shall be proposed by the applicant and reviewed by the Planning Board.
B. 
To the extent the designated traffic routes will include use of Town, county, or state roads, the applicant is responsible for executing a road use agreement with the appropriate agency which shall provide for the remediation of damaged roads upon completion of the installation or maintenance of a wind energy facility, and for adequate maintenance of the roads during construction of the wind energy facility such that the roads will remain open and passable. Prior to the issuance of any building permit, the cost of remediating road damage shall be secured in the form of a bond, letter of credit or other surety acceptable to the appropriate agency and sufficient to compensate the agency for any damage to public roads.
C. 
The applicant shall provide predevelopment and post-development photographic evidence of the condition of Town, county, or state roads to be traveled upon by construction and delivery vehicles.

§ 269-14 Issuance of permits and certificates of conformity.

Issuance of wind energy facility, small wind energy facility and wind measurement tower permits and certificates of conformity shall be as follows:
A. 
The Planning Board shall, within 180 days of either issuing SEQRA findings or a SEQRA negative declaration or conditioned negative declaration, issue a written decision with the reasons for approval, conditions of approval or disapproval fully stated. This time period may be extended with consent of the applicant.
B. 
The Planning Board is hereby expressly empowered to impose conditions governing the issuance of the permit as well as construction and operational phases of the project which it deems necessary and appropriate to ensure compliance with this chapter, the State Environmental Quality Review Act, conformity of project construction and operation with representations made by the applicant during the application review process, as well as with any determinations or findings issued by the Planning Board or any other involved agency under the State Environmental Quality Review Act, compliance with any other federal, state or local laws or regulations applicable to the project, and as may be necessary to promote the public health, safety and welfare.
C. 
If approved, the Planning Board shall direct the Town Zoning Officer, Code Enforcement Officer, Building Inspector or other designee authorized by the Town Board to issue a permit upon satisfaction of any and all conditions precedent set forth under this chapter, the terms of approval or conditions of the permit or any additional requirement of the Town Board imposed in connection with any other project approval or agreement deemed necessary to the issuance of the permit.
D. 
The decision of the Planning Board shall be filed within five days in the office of the Town Clerk and a copy shall be mailed to the applicant by first class mail.
E. 
If any approved wind energy facility, small wind energy facility or wind measurement tower is not completed within 24 months of issuance of the permit, the permit shall expire unless the Planning Board shall have granted an extension.
F. 
Upon commissioning of the project, which for purposes of wind energy facilities and small wind energy facilities shall mean the conversion of wind energy to electrical energy for on-site use or distribution to the electrical grid, and for purposes of wind measurement towers shall mean the collection of wind speed and/or other data by the wind measurement tower equipment, the Town Zoning Officer, Code Enforcement Officer, Building Inspector or other designee authorized by the Town Board shall determine whether the project is in compliance with the permit. If the Town Zoning Officer, Code Enforcement Officer, Building Inspector or other designee determines the project is in compliance with the Permit, a certificate of conformity shall be promptly issued to the permittee.

§ 269-15 Abatement of abandoned or discontinued towers.

A. 
If any wind turbine stops converting wind energy into electrical energy and/or distribution of that energy for on-site use or transmission onto the electrical grid for a continuous period of 12 months, the applicant/permittee shall remove said system at its own expense following the requirements of the decommissioning plan required under this chapter or any permit. In measuring the period of continuous inactivity, operations that are temporary in nature (energy is distributed for fewer than 14 continuous days and followed by a period of inactivity) shall not restart, suspend, or otherwise toll the running of the aforesaid twelve-month time period. The Town Board may grant an extension to this time period for one year or less.
B. 
At such time that a wind energy conversion facility is scheduled to be abandoned or discontinued, the applicant will notify the Town by certified U.S. mail of the proposed date of abandonment or discontinuation of operations. Such notice shall be given no less than 30 days prior to abandonment or discontinuation of operations. In the event that an applicant fails to give such notice, the facility shall be considered abandoned upon such discontinuation of operations.
C. 
Upon abandonment or discontinuation of use, the carrier shall physically remove the wind energy conversion facility within 90 days from the date of abandonment or discontinuation of use. "Physically remove" shall include, but not be limited to:
(1) 
Removal of all machinery, equipment, equipment shelters and security barriers from the subject property.
(2) 
Proper disposal of the waste materials from the site in accordance with local and state solid waste disposal regulations.
(3) 
Restoring the location of the wind energy conversion facility to its natural condition, except that any landscaping, grading or below-grade foundation shall remain in the "after" condition.
D. 
If an applicant fails to remove a wind energy conversion facility in accordance with this chapter, the Town shall have the authority to enter the subject property and physically remove the facility.
E. 
The Planning Board or Town Board may require the applicant to post a bond or letter of credit at the time of construction to cover costs of the removal in the event the Town must remove the facility. The amount of such bond or letter of credit shall be reviewed and approved by the Planning Board under the approved decommissioning plan.

§ 269-16 Permit revocation.

All wind energy facilities, small wind energy facilities and wind measurement towers 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 wind turbine or wind measurement tower become inoperable, or any part of a wind energy facility or small wind energy facility be damaged, or should a violation of a permit condition occur, the permittee, owner or operator shall remedy the failure within 90 days. Upon a failure to perfect a timely remedy, project operation shall cease. Application of this section of the chapter shall in no way extend or toll any time periods set forth under § 269-15 of this chapter.

§ 269-17 Fees; hiring of consultants.

A. 
Upon application for a wind energy facility permit, the applicant shall pay a permit fee equal to $500 per megawatt of proposed nameplate capacity of a project. Upon application for a small wind energy facility permit or wind measurement tower permit, the applicant shall pay a permit fee of $100. This permit fee shall be used to offset any internal costs the Town may occur in administering a permit and shall be in addition to any application fee or other fees or host community payments required of the applicant.
B. 
In addition to any fees collected in accordance with Subsection A of this section, the Town Planning Board, Zoning Officer, Building Inspector, Code Enforcement Officer and Town Board may hire any consultant and/or experts necessary to assist the Town in reviewing and evaluating permit applications, including, but not limited to, site inspections, the construction and modification of the site once permitted, and any requests for certification or recertification that the project is in conformity with the permit or the Law. An applicant shall deposit with the Town funds sufficient to reimburse the Town for all reasonable costs of consultant and expert evaluation and consultation to the Town in connection with the review of the application.

§ 269-18 Waivers and immaterial modifications.

A. 
Waivers.
(1) 
The Planning Board may grant a waiver from the strict application of the provisions of this chapter to improve the quality of any existing wind energy facility, small wind energy facility or wind measurement tower and to better protect the health, safety and welfare of the Town. Area requirements, including setbacks, noise requirements and height limits, shall not be waived by the Planning Board except as described in § 269-11 of this chapter.
(2) 
The Planning Board shall consider the impact of the waiver on the neighborhood, including the potential benefits or detriment to nearby properties, the benefits or detriments to the applicant, feasible alternatives and the magnitude of the request. The Planning Board may attach such conditions as it deems appropriate to waiver approvals to ensure that such waiver adequately protects the public health, safety and welfare.
B. 
Immaterial modifications.
(1) 
Unless expressly limited by a condition imposed in the Permit, the Town Zoning Officer, Code Enforcement Officer, Building Inspector or other Town designee may, during project construction, allow immaterial modifications to the design of the project as represented in the final set of site plans reviewed and considered by the Planning Board. Such immaterial modifications shall only be allowed, if at all, in response to a written request by the applicant or permittee. All such requests shall be submitted in writing, addressed to the authorized Town designee, with copies to the Chairman of the Planning Board, the Town Planner or other Town designee, and the Town's designated consultants. The Planning Board Chairman shall review the proposed immaterial modifications and, if deemed necessary, require the applicant to appear before the Planning Board to grant approvals for the modifications.
(2) 
Immaterial alterations shall only include a change in the location, type of material or method of construction of a wind energy facility, small wind energy facility or wind measurement tower that will not result in any material increase in any environmental impact of the project as compared to the impacts reviewed and accepted for the project by the Town Planning Board; cause the project to violate any applicable setbacks or other requirements of this chapter; or cause the project to not conform to the SEQRA determination or findings issued by the Planning Board. The applicant or permittee shall be required to acknowledge to the Town in written form that the requested modification is immaterial in accordance with the requirements of this § 269-18. At the request of the Town designee, Planning Board, Town's designated consultants or the Town Board, the Town may commission appropriate analyses to verify this acknowledgement, and the cost of any such analysis shall be paid in accordance with § 269-17 of this chapter.

§ 269-19 Enforcement; penalties for offenses.

A. 
Enforcement officer. The Town of Rotterdam Town Board shall designate an officer of the Town to enforce the provisions of this chapter. Such designated officer may, with the consent of the Town Board, contract with professional consultants to assist in the enforcement and administration of this chapter. Such professional fees shall be the responsibility of the applicant to pay (see § 269-17). In the absence of a designated enforcement officer, the Town Code Enforcement Officer shall be considered the enforcement officer for purposes of this chapter.
B. 
Penalties. Any person owning, controlling, operating or managing a wind energy facility, small wind energy facility or wind measurement tower in violation of this chapter or in noncompliance with the terms and conditions of any permit issued pursuant to this chapter, or any order of the enforcement officer, and any person who shall assist in so doing, shall be guilty of a violation of this chapter and subject to a fine of no less than $500 nor more than $1,000 or imprisonment for a period not to exceed 15 days, or both, for conviction of a first offense; for conviction of a second offense, both of which were committed within a period of five years, punishable by a fine not less than $1,000 nor more than $1,500 or imprisonment for a period not to exceed 15 days, or both; and upon conviction for a third or subsequent offense, all of which were committed within a period of five years, punishable by a fine not less than $1,500 nor more than $2,000 or imprisonment for a period not to exceed 15 days, or both. Each day of continued violation shall constitute a separate, additional offense.
[Amended 6-12-2013 by L.L. No. 7-2013]
C. 
Special proceeding. The designated enforcement officer may, with the consent of the Town Board, institute an action or proceeding available at law to prevent, correct or abate any unlawful construction, erection, structural alteration, reconstruction, modification and/or use of a wind energy facility, small wind energy facility or wind measurement tower in the Town. This shall be in addition to other remedies and penalties herein provided or available at law.