[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]
A.
BUILDING-MOUNTED WIND ENERGY CONVERSION SYSTEM
COMMERCIAL WIND ENERGY CONVERSION SYSTEM
EMERGENCY INGRESS AND EGRESS PLAN
EVACUATION PERIMETER
FIRE SAFETY PLAN
INDUSTRIAL GRADE WIND ENERGY CONVERSION SYSTEM
MAXIMUM OVERALL HEIGHT
NONCOMMERCIAL WIND ENERGY CONVERSION SYSTEM
TOTAL HEIGHT (also MAXIMUM OVERALL HEIGHT)
TOWER
TOWER HEIGHT
WIND ENERGY CONVERSION SYSTEM (WECS)
WIND ENERGY FACILITY
WIND ENERGY SYSTEM
WIND MEASUREMENT TOWER (MET)
As used in this article, the following terms shall have the meanings
indicated:
A WECS attached to an existing building or structure, with
no new tower component.
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.
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.
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.
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.
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.
See "total height."
A WECS consisting of a wind turbine, tower, and associated
control or conversion electronics, with a total height less than 165
feet.
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.
The height above grade of the uppermost fixed portion of
the tower, excluding the length of any axial rotating turbine blades.
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.
Any WECS or wind measurement tower, including all related
infrastructure, electrical lines and substations, access roads and
accessory structures.
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.
A tower used for the measurement of meteorological data such
as temperature, wind speed and wind direction.
B.
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]
A.
No WECS shall be constructed, reconstructed, modified, or operated
in the Town of Tonawanda except in compliance with this article.
B.
Industrial grade WECS are not allowed in the Town of Tonawanda.
C.
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.
D.
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.
E.
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]
A.
Applications for a building-mounted WECS shall be made through the
Town Building Department on a specially designated building permit
application.
B.
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:
(1)
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:
(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 (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.
(d)
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.
(e)
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.
(f)
SEQR full environmental assessment form (EAF).
(g)
A site plan drawn in sufficient detail to show the following:
[1]
Location of the WECS on the site and the tower height, including
blades, rotor 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 within 1,000 feet of the WECS.
[4]
Surrounding land use and all structures within 1,500 feet of
the WECS.
[5]
Dimensional representation of the various structural components
of the tower construction including the base and footing.
[6]
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:
[7]
Existing topography.
[8]
Proposed plan for grading and removal of natural vegetation.
[9]
Proposed plan for restoration after construction according to
Town of Tonawanda 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:
[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]
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.
(h)
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.
(i)
Turbine drawings. Photographs or detailed drawings of each wind
turbine model including the tower and foundation.
(j)
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):
[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 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.
[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.
[9]
A report that outlines issues and considerations for individuals
that use hearing aids.
(k)
A geotechnical report shall be furnished which shall at a minimum
include the following:
(l)
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.)
(m)
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.)
(n)
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).
(o)
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.
(p)
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.
(q)
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.
(r)
FAA notification. A copy of written notification to the Federal
Aviation Administration.
(s)
Utility notification. Utility interconnection data and a copy
of a written notification to the utility of the proposed interconnection.
(t)
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.
(u)
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.
(v)
Other information. Such additional information as may be reasonably
requested by the Development Services Staff, Planning Board or Town
Board.
C.
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.
D.
Special use permits issued for WECS shall be subject to the following
conditions.
(1)
Setbacks: The applicant shall adhere to the following setbacks.
(c)
From property lines (other than residential districts):
[1]
A minimum 1.5 times the total WECS height from any property
line excluding adjoining lot lines of project participants.
(e)
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.
(2)
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.
(3)
Signage. Signage limited: No advertising sign or logo shall
be placed or painted on any commercial wind energy facility.
(4)
Color and finish.
(a)
Color and finish: Wind turbines shall be painted a nonobtrusive
natural (such as white, gray, or beige) color that is nonreflective.
(b)
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.
(5)
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.
(6)
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.
(7)
Safety and security requirements. The applicant shall adhere
to the following safety and security requirements:
(a)
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.
(b)
Grounding. All structures which may be charged with lightning
shall be grounded according to applicable electrical codes.
(c)
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.
(d)
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.
(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 (exterior)
up to 15 feet above ground level.
(g)
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.
(h)
Self-supporting structures. All structures 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 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.
(8)
Noise requirements. The applicant shall adhere to the following
noise requirements:
(a)
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.
(b)
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:
(c)
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.
(d)
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.
(e)
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.
(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.
(9)
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:
(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.
(e)
Provision of training and fire-fighting equipment for local
fire protection personnel.
(10)
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 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.
(b)
Migratory birds. Development and operation of a commercial WECS
shall be evaluated based on SEQRA findings.
(11)
Unsafe and inoperable wind energy facilities; site reclamation.
The applicant shall adhere to the following:
(a)
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.
(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 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.
(c)
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.
(d)
Inoperable, defined. A commercial wind energy facility shall
be deemed inoperable if it has not generated power within the preceding
six months.
(12)
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.
(13)
Interference with aviation navigational systems. The applicant
shall adhere to the following:
(a)
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.
(b)
Compliance with FAA regulations. All wind energy siting shall
comply with Federal Aviation Administration (FAA) regulations.
(c)
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.
(14)
Erosion control. The applicant shall adhere to the following:
(a)
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.
(b)
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.
(15)
Certification. The applicant shall provide the following certifications:
(a)
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.
(b)
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.
(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 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.
(e)
Certification of project. Certificate of completion must be
supplied by the applicant and approved by the Town of Tonawanda Code
Enforcement Officer.
E.
Monitoring requirements for wind energy conversion systems:
(1)
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.
(2)
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.
(3)
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.
(4)
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.
(5)
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.
(6)
General complaint process.
(a)
During construction, the Town of Tonawanda Code Enforcement
Officer can issue a stop-work order at any time for any violations
of the permit.
(b)
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.
F.
Application and development fees and costs:
(1)
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.
(2)
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.
(3)
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.
G.
Findings.
(1)
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:
(a)
Consistent with the Comprehensive Plan. The proposed commercial
wind energy facility project is consistent with the Comprehensive
Plan of the Town of Tonawanda.
(b)
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.
(c)
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.
(d)
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.
H.
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.
I.
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.
J.
The special use permit shall not be assignable or transferable.
K.
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.
L.
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.
M.
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.
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 applications
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.
A.
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.
B.
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.
C.
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.
A.
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.
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.
