[Added 11-20-2006 by L.L. No. 9-2006]
The Town of Tonawanda has determined that a comprehensive local law regulating the development of WECS is necessary to protect the interests of the Town and its residents. The Town adopts this law to promote the effective and efficient use of the Town's wind energy resource through WECS, and to regulate the placement of such systems so that the public health, safety and welfare will not be jeopardized, and that the WECS will not have a significant adverse impact on the aesthetic qualities of the Town.
[Amended 2-5-2018 by L.L. No. 2-2018]
As used in this article, the following terms shall have the meanings indicated:
- BUILDING-MOUNTED WIND ENERGY CONVERSION SYSTEM
- A WECS attached to an existing building or structure, with no new tower component.
- COMMERCIAL WIND ENERGY CONVERSION SYSTEM
- A WECS consisting of a wind turbine, tower, and associated control or conversion electronics, with a total height of more than 165 feet, but less than 300 feet.
- EMERGENCY INGRESS AND EGRESS PLAN
- Plan illustrating how emergency service personnel should respond to emergencies in and around the WECS. Plan should illustrate: ingress and egress routes for emergency service personnel, evacuation routes for WECS staff, and minimum safe distance to establish an evacuation perimeter.
- EVACUATION PERIMETER
- Minimum safe distance specified by the WECS manufacturer that people should be removed from the radius of the WECS in the event of an emergency.
- FIRE SAFETY PLAN
- Plan illustrating how the manufacturer's WECS is designed to respond in the event of a fire. Plan also includes the manufacturer's recommendations for emergency service personnel response in the event of a fire. The Fire Safety Plan shall be approved by the Town Building Department.
- INDUSTRIAL GRADE WIND ENERGY CONVERSION SYSTEM
- A WECS of either greater than 300 feet in height or a system that it is intended to solely supply electrical power into a power grid for sale.
- MAXIMUM OVERALL HEIGHT
- See "total height."
- NONCOMMERCIAL WIND ENERGY CONVERSION SYSTEM
- A WECS consisting of a wind turbine, tower, and associated control or conversion electronics, with a total height less than 165 feet.
- TOTAL HEIGHT (also MAXIMUM OVERALL HEIGHT)
- The height of the WECS measured from the ground elevation to the top of the tip of the blade in the vertical position.
- The support structure, including guyed, monopole and lattice types, upon which a wind turbine or other mechanical device is 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 SYSTEM (WECS)
- One or more mechanical devices such as wind chargers, windmills or wind, turbines which are designed and used to convert wind energy into a form of useful energy for use on site to reduce power costs for sale or redistribution to others. WECS include both commercial and noncommercial systems.
- WIND ENERGY FACILITY
- Any WECS or wind measurement tower, including all related infrastructure, electrical lines and substations, access roads and accessory structures.
- WIND ENERGY SYSTEM
- The equipment that converts and then stores or transfers energy from the wind into usable forms of energy and includes any base, blade, foundation, generator, nacelle, rotor, tower, transformer, turbine, vane, wire, substation, maintenance or control facilities or other component used in the system.
- WIND MEASUREMENT TOWER (MET)
- A tower used for the measurement of meteorological data such as temperature, wind speed and wind direction.
Applicability. The requirements of this article shall apply to all WECS proposed, operated, modified, or constructed after the effective date of this article.
[Amended 2-5-2018 by L.L. No. 2-2018]
No WECS shall be constructed, reconstructed, modified, or operated in the Town of Tonawanda except in compliance with this article.
Industrial grade WECS are not allowed in the Town of Tonawanda.
No WECS shall be constructed, reconstructed, modified, or operated in any residential district (First Residential - A, Second Residential - B or Multifamily Dwelling - M-F), or Waterfront Mixed Use District - W-MU, Neighborhood Business District - NB, Traditional Neighborhood Design District - TND, or commercial district (Restricted Business - C-1, Commercial District - C-2, General Business District - C, Performance Standards Use - P-S, Waterfront Business -WB, or Retail-Highway Commercial - RHC) in the Town of Tonawanda.
Building-mounted WECS are allowed in the General Industrial District - G-I, Waterfront Mixed Use District - W-MU, or Waterfront Industrial District - WID through the prescribed building permit process in this article. These systems must meet the height requirements in that district and be restricted to a maximum of 15 feet above the roofline, or receive the appropriate variance from the Zoning Board of Appeals.
Noncommercial WECS or MET shall only be constructed, reconstructed, modified, or operated in the Town of Tonawanda in the General Industrial District - G-I, Waterfront Mixed Use District - W-MU, or Waterfront Industrial District - WID and shall require a special use permit approved pursuant to this article, the completion of SEQR, site plan approval, and upon issuance of a building permit.
[Amended 3-26-2007 by L.L. No. 2-2007; 11-19-2007 by L.L. No. 12-2007; 8-29-2016 by L.L. No. 1-2016; 2-5-2018 by L.L. No. 2-2018]
Applications for a building-mounted WECS shall be made through the Town Building Department on a specially designated building permit application.
Applications for a special use permit for noncommercial WECS will follow the general process for the issuance of a special use permit as described in Article XIV of the Town Code and this article, and shall be made as follows:
Applicants for a special use permit for WECS within the Town of Tonawanda shall submit the following information to the Town for its referral to a professional engineer or consultant and the Planning Board of the Town for review and recommendation to the Town Board:
Name and address of the applicant.
Evidence that the applicant is the owner of the property involved or has the written permission of the owner to make such an application.
Visual environmental assessment form (visual EAF), including appropriate models to scale elevations, renderings and photography assessing the WECS from key viewpoints identified in the visual EAF (or by the Town of Tonawanda). The visual EAF shall include a detailed photographic simulation showing the site fully developed with all proposed WECS and accessory structures. Each photo must be labeled with line of sight, elevation and with date taken imprinted on the photograph.
Landscaping plan indicating the proposed placement of the facility on the site, location of existing structures, and any other significant environmental features. Shall include the type and location of plants proposed to screen the WECS at ground level; method fencing prohibiting unauthorized entry, and any ground level lighting.
A narrative describing the distance of the proposed WECS, and the extent to which it would be visible, from any local, county, state, or national scenic, historic, or environmental resources located within its viewshed, including any proposed mitigation measures.
SEQR full environmental assessment form (EAF).
A site plan drawn in sufficient detail to show the following:
Location of the WECS on the site and the tower height, including blades, rotor diameter and ground clearance.
Utility lines, both above and below ground, within a radius equal to the proposed tower height, including the blades.
Property lot lines and the location and dimensions of all existing structures and uses on site within 1,000 feet of the WECS.
Surrounding land use and all structures within 1,500 feet of the WECS.
Dimensional representation of the various structural components of the tower construction including the base and footing.
Certification by a registered New York State professional engineer that the tower's design is sufficient to withstand wind loading requirements for structures as established by the New York State Uniform Construction Code:
Proposed plan for grading and removal of natural vegetation.
Proposed plan for restoration after construction according to Town of Tonawanda and New York State Department of Environmental Conservation guidelines.
Wind characteristics and dominant wind direction from which 50% or more of the energy contained in the wind flows.
Plan for ingress and egress to the proposed project site including:
A description of the access route from the nearest state-, county-, and/or Town-maintained roads to include:
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.
Tree delineation. All groves of trees shall be located on the site plan at time of application. No tree of three inches DBH or greater shall be removed without approval of the Planning Board.
Turbine information. Specific information on the type, size, height, rotor material, rated power output, performance, safety, and noise characteristics of each commercial wind turbine model, tower, and electrical transmission equipment.
Turbine drawings. Photographs or detailed drawings of each wind turbine model including the tower and foundation.
Noise report. [See § 215-172D(8) for report requirements.] A noise report shall be furnished which shall include the following (the noise report requirement may be waived by the Town for noncommercial WECS):
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.
A description and map of the noise-sensitive environment, including any noise-sensitive receptors, i.e., residences, hospitals, libraries, schools, places of worship and other facilities where quiet is important within two miles of the proposed wind energy facility.
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.
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.
A description and map of the cumulative noise impacts.
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.
Identification of any problem areas.
Manufacturers noise design and field testing data, both audible (dBA) and low frequency (deep bass vibration), for all proposed structures.
A report that outlines issues and considerations for individuals that use hearing aids.
A geotechnical report shall be furnished which shall at a minimum include the following:
Ice throw calculations (for commercial WECS): a report from a New York State professional engineer that calculates the maximum distance that ice from the turbine blades could be thrown. (The basis of the calculation and all assumptions must be disclosed.)
Blade throw calculations (for commercial WECS): a report from a New York State professional engineer 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.)
Catastrophic tower failure. A report from the turbine manufacturer stating the wind speed and conditions that the turbine is designed to withstand (including all assumptions).
Emergency ingress and egress plan. Plan illustrating how emergency service personnel should respond to emergencies in and around the WECS Plan should illustrate: ingress and egress routes for emergency service personnel, evacuation routes for WECS staff, and minimum safe distance to establish an evacuation perimeter.
Evacuation perimeter: minimum safe distance specified by the WECS manufacturer that people should be removed from the radius of the WECS in the event of an emergency or catastrophic tower failure.
Plan illustrating how the manufacturer's WECS is designed to cease operations in the event of a fire. Plan also includes the manufacturer's recommendations for emergency service personnel response in the event of a fire. The Fire Safety Plan shall be approved by the Town of Tonawanda Fire Chief or appropriate Building Department designee.
FAA notification. A copy of written notification to the Federal Aviation Administration.
Utility notification. Utility interconnection data and a copy of a written notification to the utility of the proposed interconnection.
Notification to microwave communications link operators. An application that includes any wind turbine 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.
Floodplain. An application that includes any wind turbine which is located within a one-hundred-year floodplain area shall submit the appropriate floodplain study to the Town and any additional information as requested by the Town.
Other information. Such additional information as may be reasonably requested by the Development Services Staff, Planning Board or Town Board.
Application for site plan approval for noncommercial WECS. Applications for site plan approval for noncommercial WECS shall be made as follows: filing of a special use permit (SUP) application to the Town Board, who will then initiate the State Environmental Quality Review (SEQR) of the proposed project. The Planning Board shall then review the SUP application and make a recommendation on its merits to the Town Board. The Town Board shall then hold a public hearing on the proposed application for site plan approval and after giving full consideration to the Planning Board's recommendation and input received through the SEQR and public hearing processes, shall approve, approve with conditions, or deny the application. Once the applicant has been granted site plan approval, and any applicable conditions of approval have been met, the applicant can apply for a building permit to begin construction.
Special use permits issued for WECS shall be subject to the following conditions.
Setbacks: The applicant shall adhere to the following setbacks.
From property lines (other than residential districts):
A minimum 1.5 times the total WECS height from any property line excluding adjoining lot lines of project participants.
From aboveground transmission lines greater than 12 kilovolts: A minimum 1.5 times the total WECS height from any aboveground transmission line greater than 12 kilovolts, excluding where transmission lines are located within PUD zones.
Maximum overall height: The maximum overall height of any noncommercial WECS shall be 165 feet. The maximum height shall be measured from the ground elevation to the top of the tip of the blade in the vertical position.
Signage. Signage limited: No advertising sign or logo shall be placed or painted on any commercial wind energy facility.
Color and finish.
Color and finish: Wind turbines shall be painted a nonobtrusive natural (such as white, gray, or beige) color that is nonreflective.
Camouflage facilities: The design of 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.
Lighting. Lighting plan required: The applicant shall submit a noncommercial 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.
Compliance with regulatory agencies. 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 wind energy conversion system.
Safety and security requirements. The applicant shall adhere to the following safety and security requirements:
Safety shutdown. Each wind turbine shall be equipped with both manual and automatic controls to limit the rotational speed of the blade within the design limits of the rotor. Manual electrical and/or overspeed-shutdown-disconnect switches shall be provided and clearly labeled on the wind turbine structure. No wind turbine shall be permitted that lacks an automatic braking, governing, or feathering system to prevent uncontrolled rotation, overspeeding and excessive pressure on the tower structure, rotor blades, and turbine components.
Grounding. All structures which may be charged with lightning shall be grounded according to applicable electrical codes.
Wiring. All wiring between the wind turbines and the wind energy facility 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.
All transmission lines from WECS to on-site substations shall be underground. The Town 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 Town Board has sufficient engineering data submitted by the applicant to demonstrate that underground transmission lines are unfeasible.
Ground clearance. The blade tip of any wind turbine shall, at its lowest point, have ground clearance of not less than 50 feet.
Climbability. Wind turbine towers shall not be climbable (exterior) up to 15 feet above ground level.
Access doors locked. All access doors to wind turbine towers and electrical equipment shall be lockable and shall remain locked at all times when operator personnel are not present.
Self-supporting structures. All structures shall be of monopole construction (single pole). No lattice structures or guy wire supported structures shall be permitted.
Signage. Appropriate warning signage shall be placed on WECS and all WECS appurtenances (towers, electrical equipment, and wind energy facility entrances, etc.). Signage shall also include two twenty-four-hour emergency contact numbers to the owner of the wind turbine in accordance with local, state, and federal codes.
Noise requirements. The applicant shall adhere to the following noise requirements:
Compliance with noise regulations required. A WECS permit shall not be granted unless the applicant demonstrates that the proposed project complies with all noise regulations.
Noise study required. The applicant shall submit a noise study based on the requirements set out in Subsection B of this section. The Planning Board and Technical Support Department shall determine the adequacy of the noise study and, if necessary, may require further submissions. The noise study shall consider the following:
Noise setbacks. The Town Board may impose a noise setback that exceeds the other setbacks set out in this section if it deems that such greater setbacks are necessary to protect the public health, safety and welfare of the community.
Audible noise standard. 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.
Operations, low frequency noise. A WECS facility 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.
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.
Fire hazard protection. The applicant shall submit a fire control and prevention program that is appropriate and adequate for the proposed facility as determined by the Town of Tonawanda Building Department or its designee. The proposed program may include, but is not limited to, the following:
Fireproof or fire-resistant building materials.
Buffers or fire-retardant landscaping.
Availability of water.
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.
Provision of training and fire-fighting equipment for local fire protection personnel.
Impact on wildlife species and habitat. The applicant shall adhere to the following regarding the impact on wildlife species and habitat:
Endangered or threatened species. Development and operation of a WECS facility 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 Tonawanda Comprehensive Plan and/or the studies and plans of the regional planning commissions based on criteria established by the federal or state regulatory agencies.
Migratory birds. Development and operation of a commercial WECS shall be evaluated based on SEQRA findings.
Unsafe and inoperable wind energy facilities; site reclamation. The applicant shall adhere to the following:
Removal and site restoration. Unsafe WECS facilities, inoperable WECS facilities, and WECS facilities for which the permit has expired shall be removed by the owner at their expense. All safety hazards created by the installation and operation of the commercial wind energy facility shall be eliminated, and the site shall be restored to its natural condition to the extent feasible as per Subsection D(11)(b) of this section. A bond or other appropriate form of security shall be required to cover the cost of the removal and site restoration at the time of building permit application. The bond shall be payable to the Town of Tonawanda for the removal of nonfunctional WECS and appurtenant facilities in an amount to be determined by the Town for the period of the life of the facility. Any fund established may consist of a letter of credit from a State of New York licensed financial institution. All costs of the financial security shall be borne by the applicant.
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 Code Enforcement Officer and Technical Support Department for review and approval. The restoration plan shall identify the specific properties it applies to and shall indicate removal of all buildings, structures, wind turbines, access roads and/or driveways and foundations to four feet below finished 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 WECS facility. 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.
Public nuisance. Every unsafe WECS facility and every inoperable WECS facility is hereby declared a public nuisance which shall be subject to abatement by repair, rehabilitation, demolition, or removal. An inoperable WECS facility 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.
Inoperable, defined. A commercial wind energy facility shall be deemed inoperable if it has not generated power within the preceding six months.
Interference with residential television, microwave and radio reception. The applicant must submit proof that the proposed construction of the WECS will not cause interference with microwave transmissions, cellular transmissions, residential television interference 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.
Interference with aviation navigational systems. The applicant shall adhere to the following:
No interference with aviation facilities. No commercial wind energy facility shall be installed or operated in a manner that causes interference with the operation of any aviation facility.
Compliance with FAA regulations. All wind energy siting shall comply with Federal Aviation Administration (FAA) regulations.
Locking mechanisms to limit radar interference required. All WECS facilities 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 WECS is "free-wheeling" during startup and shutdown. The Town 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 WECS facility.
Erosion control. The applicant shall adhere to the following:
Before the Town of Tonawanda shall issue a grading or building permit for the WECS facility, the applicant shall submit a stormwater pollution prevention plan (SWPPP) consistent with the requirements of Chapter 73, Stormwater Management, of the Code of the Town of Tonawanda, if applicable. The SWPPP shall meet the performance and design criteria and standards in § 73-9 of the Code of the Town of Tonawanda or most recent standard.
If the proposed project disturbs over one acre, the applicant must comply with the New York State Department of Environmental Conservation 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 Tonawanda prior to construction. Per Permit No. GP-02-01, construction cannot begin until the required time period for NYSDEC review has passed.
Certification. The applicant shall provide the following certifications:
Certification of structural components. The foundation, tower and compatibility of the tower with the rotor and rotor-related equipment shall be certified in writing by a structural engineer licensed and registered in New York. The engineer shall certify compliance with good engineering practices and compliance with the appropriate provisions of the Uniform Building and Construction Code that have been adopted in New York State.
Certification of postconstruction. After completion of the WECS, the applicant shall provide a postconstruction certification from a licensed professional engineer licensed and registered 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.
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.
Certification of rotor overspeed control. The rotor overspeed control system shall be certified in writing by a mechanical engineer licensed and registered in New York State. The engineer shall certify compliance with good engineering practices.
Certification of project. Certificate of completion must be supplied by the applicant and approved by the Town of Tonawanda Code Enforcement Officer.
Monitoring requirements for wind energy conversion systems:
Right to enter premises for monitoring. Upon reasonable notice, Town of Tonawanda officials or their designated representatives may enter a lot on which a WECS facility permit has been granted for the purpose of monitoring 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.
Avian/bat impact study plan. The applicant shall submit a plan for monitoring the avian impact of the commercial wind energy facility to the Planning Board for its review and approval. Such plan shall document and follow accepted scientific study procedures. In addition, the applicant shall agree to submit a report to the Planning Board according to the requirements of the applicable regulatory agencies that identifies all dead birds found within 500 feet of the commercial wind energy facility.
Periodic reporting required. The applicant shall agree to submit periodic monitoring reports to the Town. The report shall contain data on the operations and environmental impacts and shall be in the form prescribed by the Code Enforcement Officer.
Power production report required. The applicant shall agree to submit a quarterly power production report to the Town. The power production report shall cover the preceding calendar quarter and shall be in the form prescribed by the Technical Support Department and shall include actual power production in kilowatt hours for each WECS facility.
Inspections. Unless waived by the Town Board, all commercial WECS shall be inspected annually by a New York State licensed professional engineer 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 pole may 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.
General complaint process.
During construction, the Town of Tonawanda Code Enforcement Officer can issue a stop-work order at any time for any violations of the permit.
Postconstruction. 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 Tonawanda Code Enforcement Officer, the permit holder/contact person shall have seven working days to reply to the Town in writing.
Application and development fees and costs:
Application fee. The applicant shall pay all costs associated with the Town of Tonawanda'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 Tonawanda 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.
Development fees to be paid. A one-time or periodic fee and a requirement to provide public works or services may be imposed as a condition of a commercial WECS permit. Such fees must be related to the public need created by the wind energy development. The purposes for which the permit fee may be used include, but are not limited to, providing roads required by the wind energy development, providing fire protection services, and establishing and operating a monitoring system.
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.
Findings necessary to grant a WECS facility permit. In order to grant a WECS facility permit, the Town of Tonawanda shall review the application, all filings by any other party, and conduct a public hearing. A commercial wind energy facility permit shall not be granted unless the Town of Tonawanda makes the following findings based on substantial evidence:
Consistent with the Comprehensive Plan. The proposed commercial wind energy facility project is consistent with the Comprehensive Plan of the Town of Tonawanda.
Will not unreasonably interfere with the orderly land use and development plans. The proposed WECS facility will not unreasonably interfere with the orderly land use and development plans of the Town of Tonawanda.
Benefits to the applicant and public will exceed any burdens. The benefits of the proposed WECS facility project to the applicant and the public will exceed any burdens.
Not detrimental to the public health, safety and general welfare of the community. The proposed WECS facility will not be detrimental to the public health, safety or general welfare of the community.
The Town 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.
WECS permits approved by the Town Board of the Town of Tonawanda shall be renewed annually. The permit holder shall make renewal application to the Code Enforcement Officer 60 days prior to expiration to allow for inspection and full compliance with all applicable laws and regulations. The renewal application will include a fee as set by the Town Board.
The special use permit shall not be assignable or transferable.
Amendments to special use permit. Any changes or alterations postconstruction to the WECS shall be done only by amendment to the special use permit and subject to all requirements of this article.
The applicant shall agree to indemnify and save the Town, its Town Board, officers, agents and employees harmless from any liability imposed upon the Town, its officers, agents and/or employees arising from the construction, operation or maintenance of the WECS.
The applicant shall certify to the Town that appropriate security will be in place to restrict access to the WECS and facilities following completion of construction.
[Amended 2-5-2018 by L.L. No. 2-2018]
The Town Board acknowledges that, prior to construction of a WECS, 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 under the laws as a temporary special use (for up to two years) in the same zoning districts as the WECS.
An application for a wind measurement tower shall include:
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.
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 applications and authorizing the submission of the application.
Address of each proposed tower site, including Tax Map section, block and lot number.
Decommissioning plan, including a security bond or cash for removal.
Testing fund. A special use permit shall contain a requirement that the application 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 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.
Operation. A 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 WECS become inoperable, or should any part of the WECS be damaged, or should a 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.
Notwithstanding any other abatement provision under this article, if the WECS is not repaired or made operational or brought into permit compliance after said notice, the Town 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: 1) order either remedial action within a particular time frame, or 2) order revocation of the wind energy permit or the WECS and require the removal of the WECS within 90 days. If the 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 WECS.
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.
Any person owning, controlling or managing any building, structure or land who shall undertake a WECS or wind measurement tower 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 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.
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.