[HISTORY: Adopted by the Town Board of the
Town of Wheatfield as indicated in article histories. Amendments noted
where applicable.]
[Adopted 8-27-2007 by L.L. No. 6-2007]
As used in this article, the following terms
shall have the meanings indicated:
A wind energy conversion system consisting of one wind turbine,
one tower and associated control or conversion electronics, which
has a rated capacity greater than 250 kilowatts and a total height
of more than 150 feet and is intended to solely supply electrical
power into a power grid for sale.
A wind energy conversion system consisting of one wind turbine,
one tower and associated control or conversion electronics, which
has a rated capacity of not more than 250 kilowatts and a total height
of not more than 150 feet and is intended to solely supply electrical
power for the use on the subject property.
The height of the wind energy conversion system measured
from the ground elevation to the top of the tip of the blade in the
vertical position.
The support structure, including guyed, monopole and lattice
types, upon which a wind turbine and other mechanical devices are
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 which are designed and used
to convert wind energy into a form of electric energy.
Any wind energy conversion system, wind measurement tower
or wind energy system, including all related infrastructure, electrical
lines and substations, access roads and accessory structures.
A tower used for the measurement of meteorological data,
such as temperature, wind speed and wind direction.
Any piece of electricity-generating equipment that converts
wind energy into electrical energy through the use of airfoils, rotating
turbine blades or similar devices to capture the wind.
A.
The Town of Wheatfield recognizes that wind energy
is a renewable and clean energy resource of the Town and that its
conversion to electricity will reduce the dependence on nonrenewable
energy resources and decrease air and water pollution.
B.
The Town recognizes that previous wind energy codes
were outdated and desires a more comprehensive, up-to-date code that
sets standards for the development of wind energy conversion systems
while ensuring the safety, heath and welfare of the public.
A.
The placement, construction and major modification
of all commercial WECS within the boundaries of the Town of Wheatfield
shall be permitted only by special use permit in the M-1 and M-2 Industrial
Zoning Districts (excluding any locations within the Niagara Falls
Boulevard Overlay District) upon concurrent site plan approval issued
by the Town of Wheatfield Planning Board, as provided herein, after
SEQRA review, with the Town of Wheatfield Planning Board designated
as lead agent, and upon issuance of a building permit, and shall be
subject to all provisions of this article.
[Amended 11-7-2022 by L.L. No. 3-2022]
B.
Applications under this article shall be made as follows:
(1)
Applicants for a special use permit to place, construct
or modify a commercial WECS within the Town of Wheatfield shall submit
the following information to the Planning Board for its referral to
a professional engineer or consultant for review and recommendation:
(a)
Name and address of the applicant.
(b)
Evidence that the applicant is the owner of
the property involved or has the written permission of the owner to
make such an application.
(c)
Visual environmental assessment form (EAF),
landscaping plan and visual assessment report, including appropriate
models and photography assessing the visibility from key viewpoints
identified in the visual EAF (or by the Town of Wheatfield Planning
Board), existing tree lines and proposed elevations. The visual EAF
shall include a detailed or photographic simulation showing the site
fully developed with all proposed wind turbines and accessory structures.
(d)
A site plan drawn in sufficient detail to show
the following:
[1]
Location of the tower(s) on the site and the
tower height, including blades, wind turbine diameter and ground clearance.
[2]
Utility lines, both above and below ground,
within a radius equal to the proposed tower height including the blades.
[3]
Property lot lines and the location and dimensions
of all existing structures and uses on site.
[4]
The location and dimension of all existing structures
and uses on all adjacent properties, including across the street or
other rights-of-way.
[5]
Dimensional representation of the various structural
components of the tower construction including the base and footing.
[6]
Certification by a professional engineer licensed
in New York State that the tower's design is sufficient to withstand
wind-loading requirements for structures as established by the New
York State Uniform Construction Code.
[7]
Existing topography.
[8]
Proposed plan for grading and removal of natural
vegetation.
[9]
Proposed plan for restoration after construction
according to New York State Agriculture and Markets and New York State
Department of Environmental Conservation guidelines.
[10]
Wind characteristics and dominant wind direction
from which 50% or more of the energy contained in the wind flows.
[11]
[12]
Detailed construction plan, including, but not
limited to, a construction schedule, hours of operation, designation
of heavy haul routes, a list of material, equipment and loads to be
transported, identification of temporary facilities intended to be
constructed, and contact representative in the field with name and
phone number.
[13]
All groves of trees shall be located on the
site plan at time of application. No grove or woodlots of trees shall
be removed without approval of the Planning Board.
(e)
Specific information on the type, size, height,
rotor material, rated power output, performance, safety and noise
characteristics of all commercial WECS.
(f)
Photographs or detailed drawings of each wind
turbine model, including the tower and foundation.
(g)
A noise report shall be furnished which shall
include the following:
[1]
A description and map of the project's noise-producing
features, including the range of noise levels expected and the tonal
and frequency characteristics expected. The noise report shall include
low-frequency, infrasound, pure tone and repetitive/impulsive sound;
[2]
A description and map of the noise-sensitive
environment, including any sensitive noise receptors, i.e., residences,
hospitals, libraries, schools, places of worship and other facilities
where quiet is important, within two miles of the proposed facilities;
[3]
A survey and report prepared by a qualified
engineer that analyzes the preexisting ambient noise regime (including
seasonal variation), including, but not limited to, separate measurements
of low-frequency and A-weighted noise levels across a range of wind
speeds (including near cut-in), turbulence measurements, distance
from the turbines, location of sensitive receptors relative to wind
direction, and analyses at affected sensitive receptors located within
two miles of the proposed project site;
[4]
A description and map showing the potential
noise impacts, including estimates of expected noise impacts upon
construction and operation workers and estimates of expected noise
levels at sensitive-receptor locations;
[5]
A description and map of the cumulative noise
impacts;
[6]
A description of the project's proposed noise-control
features, including specific measures proposed to protect workers
and specific measures proposed to mitigate noise impacts for sensitive
receptors consistent with levels in this article;
[7]
Identification of any problem areas;
[8]
Manufacturers' noise design and field testing
data, both audible (dBA) and low frequency (deep bass vibration),
for all proposed structures; and
[9]
A report that outlines issues and considerations
for individuals that use hearing aids.
(h)
A geotechnical report (by a licensed professional)
shall be furnished which shall, at a minimum, include the following:
(i)
Ice throw calculations. A report from a professional
engineer licensed in New York State that calculates the maximum distance
that ice from the wind turbine blades could be thrown. (The basis
of the calculation and all assumptions must be disclosed.)
(j)
Blade throw calculations. A report from a professional
engineer licensed in New York State that calculates the maximum distance
that pieces of the turbine blades could be thrown. (The basis of the
calculation and all assumptions must be disclosed.)
(k)
Catastrophic tower failure. A report from the
turbine manufacturer stating the wind speed and conditions that the
wind turbine is designed to withstand (including all assumptions).
(l)
Federal Aviation Administration (FAA) notification.
A copy of written notification to the FAA, the local Air Force base
and Mercy Flight.
(m)
Utility notification. Utility interconnection
data and a copy of a written notification to the utility of the proposed
interconnection.
(n)
Notification to microwave communications link
operators. An application that includes any commercial WECS which
is located within two miles of any microwave communications link shall
be accompanied by a copy of a written notification to the operator
of the link.
(o)
Floodplain. An application that includes any
commercial WECS which is located within a one-hundred-year floodplain
area, as such flood hazard areas are shown on the floodplain maps,
shall be accompanied by a detailed report which shall address the
potential for wind erosion, water erosion, sedimentation and flooding,
and which shall propose mitigation measures for such impacts.
(p)
Other information. Such additional information
as may be reasonably requested by the Town Engineer or Planning Board.
C.
Special use permits issued for a commercial WECS shall
be subject to the following conditions:
(2)
Setbacks. Any commercial WECS shall adhere to the
following setbacks.
(a)
From all property lines:
[1]
A minimum 1 1/2 times the total height
of the commercial WECS from any property line excluding adjoining
lot lines of project participants.
(b)
From residential zoning districts:
[1]
A minimum 1,000 feet from any residential district
boundary line.
(d)
From public roads and public railroads:
[1]
A minimum 1 1/2 times the total height
of the commercial WECS from any public road or railroad; and
[2]
Where the lot line abuts a public right-of-way,
the setbacks specified above shall be measured from the center line
of such right-of-way.
[3]
The required setbacks shall not apply to private
roads, private driveways or private railroads.
(e)
From aboveground transmission lines greater
than 12 kilovolts:
[1]
A minimum 1 1/2 times the total height
of the commercial WECS from any aboveground transmission line greater
than 12 kilovolts.
(f)
Notwithstanding the provisions set forth in
these subsections, such setbacks from property lines, public roads
and public railroads do not apply if the application is accompanied
by a legally enforceable agreement(s) that runs with the property
for a period of 25 years or the life of the permit, whichever is longer,
that the adjacent landowners agree to the elimination of the required
setbacks. Any agreement to the elimination of such property line setbacks
shall not constitute the reduction or elimination of required setbacks
from structures, as identified herein, and such setbacks from structures
for safety reasons shall not be reduced or eliminated.
(3)
Maximum overall height:
(a)
The maximum overall height of any commercial
WECS shall be 500 feet, consistent with Federal Aviation Administration
(FAA) regulations. The maximum height shall be measured from the ground
elevation to the top of the tip of the blade in the vertical position.
(4)
Signage.
(a)
No advertising sign or logo shall be placed
or painted on any commercial wind energy facility.
(5)
Color and finish.
(a)
Wind turbines and towers shall be painted a
nonobtrusive (e.g., light environmental color such as white, gray
or beige) color that is nonreflective.
(b)
The design of commercial WECS buildings and
related structures shall, to the extent reasonably possible, use materials,
colors, textures, screening and landscaping that will blend the facility
to the natural setting and the existing environment.
(6)
Lighting.
(a)
The applicant shall submit a commercial wind
energy facility lighting plan that describes all lighting that will
be required, including any lighting that may be required by the FAA.
Such plan shall include, but is not limited to, the planned number
and location of lights, light color, whether any such lights will
be flashing, and mitigation measures planned to control the light
so that it is does not spill over onto neighboring properties.
(7)
Compliance with regulatory agencies.
(a)
The applicant is required to obtain all necessary
regulatory approvals and permits from all federal, state, county and
local agencies having jurisdiction and approval related to the completion
of the commercial WECS.
(8)
Safety and security requirements. The applicant shall
adhere to the following safety and security requirements:
(a)
Safety shutdown. Each commercial WECS shall
be equipped with both manual and automatic controls to limit the rotational
speed of the blade within the design limits of the wind turbine. Manual
electrical and/or over-speed shutdown disconnect switches shall be
provided and clearly labeled on the commercial WECS. No wind turbine
shall be permitted that lacks an automatic braking, governing or feathering
system to prevent uncontrolled rotation, over-speeding and excessive
pressure on the tower structure, rotor blades and wind turbine components.
(b)
All structures which may be charged with lightning
shall be grounded according to applicable electrical codes.
(c)
All wiring between the wind turbines and the
commercial WECS substation shall be underground. The applicant is
required to provide a site plan showing the locations of all overhead
and underground electric utility lines, including substations, for
the project.
(d)
All transmission lines from a commercial WECS
to on-site substations shall be underground. The Planning Board shall
have the authority to waive this requirement if the owner of the property
upon which the transmission line will be sited consents to aboveground
transmission lines or if the Planning Board has sufficient engineering
data submitted by the applicant to demonstrate that underground transmission
lines are unfeasible.
(e)
Ground clearance. The blade tip of any wind
turbine shall, at its lowest point, have ground clearance of not less
than 50 feet.
(f)
Climbability. Wind turbine towers shall not
be climbable up to 15 feet above ground level.
(g)
Access doors locked. All access doors to commercial
WECS structures and electrical equipment shall be lockable and shall
remain locked at all times when operator personnel are not present.
(h)
Self-supporting structures. All towers shall
be of monopole construction (single pole). No lattice structures or
guy-wire-supported structures shall be permitted.
(i)
Signage. Appropriate warning signage shall be
placed on a commercial WECS and at all entrances. Signage shall also
include two twenty-four-hour emergency contact numbers to the owner
of the commercial WECS in accordance with local, state and federal
codes.
(j)
Ice throw. Special use permit shall determine
the acceptable ice throw range based on the activities in the area,
location and calculations of the ice throw.
(9)
Noise requirements. The applicant shall adhere to
the following noise requirements:
(a)
Compliance with noise regulations required.
A commercial WECS special use permit shall not be granted unless the
applicant demonstrates that the proposed project complies with all
noise regulations.
(b)
Noise study required. The applicant shall submit a noise study based on the requirements set out in the § 198-3B(1)(g) of this article. The Planning Board shall determine the adequacy of the noise study and, if necessary, may require further submissions. The noise study shall consider the following:
(c)
Noise setbacks. The Planning Board may impose
a noise setback that exceeds the other setbacks set out in this article
if it deems that such greater setbacks are necessary to protect the
public health, safety and welfare of the community.
(d)
Audible noise standard. The audible noise resulting
from the operation of any commercial WECS shall not be created which
causes the noise level at the boundary of the proposed project site
to exceed that of the mean twenty-four-hour dBA operating noise that
currently exists for more than five minutes out of any one-hour time
period.
(e)
Operations, low-frequency noise. A commercial
WECS shall not be operated so that impulsive sound below 20 Hz adversely
affects the habitability or use of any dwelling unit, hospital, school,
library, nursing home or other sensitive noise receptor.
(f)
Noise complaint and investigation process required.
The applicant shall submit a noise complaint and investigation process.
The Planning Board shall determine the adequacy of the noise complaint
and investigation process.
(10)
Fire hazard protection. The applicant shall
submit a fire control and prevention program that is appropriate and
adequate for the proposed facility. The proposed program may include,
but is not limited to, the following:
(a)
Fireproof or fire-resistant building materials;
(b)
Buffers or fire-retardant landscaping;
(c)
Availability of water;
(d)
An automatic fire-extinguishing system for all
buildings or equipment enclosures of substantial size containing control
panels, switching equipment or transmission equipment - without
regular human occupancy; and
(e)
Provision of training and fire-fighting equipment
for local fire-protection personnel.
(11)
Impact on wildlife species and habitat. The
applicant shall adhere to the following regarding the impact on wildlife
species and habitat:
(a)
Endangered or threatened species. Development
and operation of a commercial WECS shall not have a significant adverse
impact on endangered or threatened fish, wildlife or plant species
or their critical habitats, or other significant habitats identified
in the Town of Wheatfield Comprehensive Plan and/or the studies and
plans of the regional planning commissions based on criteria established
by the federal or state regulatory agencies.
(b)
Migratory birds. Development and operation of
a commercial WECS shall be evaluated based on SEQRA findings.
(12)
Unsafe and inoperable commercial WECS; site
reclamation. The applicant shall adhere to the following:
(a)
Removal and site restoration. An unsafe commercial
WECS, inoperable commercial WECS, and commercial WECS for which the
special use permit has expired shall be removed by the owner. All
safety hazards created by the installation and operation of the commercial
WECS shall be eliminated, and the site shall be restored to its natural
condition to the extent feasible. A bond or other appropriate form
of security shall be required to cover the cost of the removal and
site restoration.
(b)
Removal and site restoration plan required.
The applicant shall submit a removal and site restoration plan and
removal and site restoration plan cost estimate to the Town of Wheatfield
Planning Board for its review and approval. The restoration plan shall
identify the specific properties to which it applies and shall indicate
removal of all buildings, structures, wind turbines, access roads
and/or driveways, foundations to four feet below finish grade, road
repair costs, if any, and all regrading and revegetation necessary
to return the subject property to the condition existing prior to
establishment of the commercial WECS. The restoration shall reflect
the site-specific character, including topography, vegetation, drainage
and any unique environmental features. The plan shall include a certified
estimate of the total cost (by element) of implementing the removal
and site restoration plan.
(c)
Public nuisance. Every unsafe commercial WECS
and every inoperable commercial WECS is hereby declared a public nuisance
which shall be subject to abatement by repair, rehabilitation, demolition
or removal. An inoperable commercial WECS shall not be considered
a public nuisance, provided that the owner can demonstrate that modernization,
rebuilding or repairs are in progress or planned and will be completed
within no more than six months.
(d)
"Inoperable" defined. A commercial WECS shall
be deemed inoperable if it has not generated power within the preceding
six months.
(13)
Interference with residential television, microwave
and radio reception.
(a)
The applicant must submit information that the
proposed construction of the commercial WECS will not cause interference
with microwave transmissions, cellular transmissions, residential
television or radio reception of domestic or foreign signals. The
applicant shall include specific measures proposed to prevent interference,
a complaint procedure and specific measures proposed to mitigate interference
impacts.
(14)
Interference with aviation navigational systems.
The applicant shall adhere to the following:
(a)
No interference with aviation facilities. No
commercial WECS shall be installed or operated in a manner that causes
interference with the operation of any aviation facility.
(b)
Compliance with FAA regulations. All commercial
WECS sitings shall comply with FAA regulations.
(c)
Locking mechanisms to limit radar interference
required. All commercial WECS shall include a locking mechanism which
prevents the blades from rotating when not producing power in order
to limit airport radar interference or "clutter." This provision does
not apply while the commercial WECS is freewheeling during start-up
and shutdown. The Planning Board may modify or eliminate the requirement
for a locking mechanism if sufficient evidence is presented that no
significant airport radar interference or clutter will be caused by
the commercial WECS.
(15)
Erosion control. The applicant shall adhere
to the following:
(a)
Erosion control plan required. Before the Town
of Wheatfield shall issue a grading or building permit for the commercial
WECS, the applicant shall submit an erosion control plan to the Planning
Board and Town Engineer for their review and approval. The plan shall
minimize the potential adverse impacts on wetlands and Class I and
II streams and the banks and vegetation along those streams and wetlands
and minimize erosion or sedimentation.
(b)
If the proposed project disturbs over one acre,
the applicant must comply with the New York State Department of Environmental
Conservation (NYSDEC) SPDES general permit for stormwater discharges
from construction activity (Permit No. GP-02-01). A copy of the notice
of intent (N.O.I.) and stormwater pollution prevention plan (SWPPP)
as required by the general permit must be filed with the Town of Wheatfield
prior to construction. Per the general permit, construction cannot
begin until the required time period for NYSDEC review has passed.
(16)
Certification. The applicant shall provide the
following certifications.
(a)
Certification of structural components. The
foundation, tower, wind turbine and compatibility of the tower with
related equipment shall be certified in writing by a structural engineer
registered in New York State. The engineer shall certify compliance
with good engineering practices and compliance with the appropriate
provisions of the Uniform Construction Code that have been adopted
in New York State.
(b)
Certification post construction. After completion
of the commercial WECS, the applicant shall provide a post-construction
certification from a professional engineer licensed in New York State
that the project complies with applicable codes and industry practices
and has been completed according to the design plans.
(c)
Certification of electrical system. The electrical
system shall be certified in writing by an electrical engineer registered
in New York. The engineer shall certify compliance with good engineering
practices and with the appropriate provisions of the Electric Code
that have been adopted by New York State.
(d)
Certification of wind turbine over-speed control.
The wind turbine over-speed control system shall be certified in writing
by a mechanical engineer registered in New York State. The engineer
shall certify compliance with good engineering practices.
(e)
Certification of project. Certificate of completion
must be supplied by the applicant and approved by the Town of Wheatfield
Code Enforcement Officer.
D.
Monitoring requirements for commercial WECS:
(1)
Right to enter premises for monitoring. Upon reasonable
notice, Town of Wheatfield officials or their designated representatives
may enter a lot on which a commercial WECS special use permit has
been granted for the purpose of compliance with any permit requirements.
Twenty-four-hours' advance notice by telephone to the owner/operator
or designated contact person shall be deemed reasonable notice.
(2)
Avian/bat impact study plan. The applicant shall submit
a plan for monitoring the avian impact of the commercial WECS to the
Planning Board for its review and approval. Such plan shall document
and follow accepted scientific study procedures.
(3)
Periodic reporting required. The Planning Board may
request that the applicant periodically submit documentation reporting
the environmental impacts of the operational commercial WECS that
shall contain content and be in the form prescribed by the Planning
Board.
(4)
Power production report required. The Planning Board
may request that the applicant periodically submit documentation reporting
that power is being generated by the commercial WECS.
(5)
Inspections. Unless waived by the Planning Board,
a commercial WECS shall be inspected annually by a professional engineer
licensed in New York State that has been approved by the Town or at
any other time upon a determination by the Town's Code Enforcement
Office that the wind turbine, tower or other commercial WECS components
have sustained structural damage, and a copy of the inspection report
shall be submitted to the Town Code Enforcement Officer. Any fee or
expense associated with this inspection shall be borne entirely by
the permit holder.
(6)
General complaint process:
(a)
During construction, the Town of Wheatfield
Code Enforcement Officer can issue a stop order at any time for any
violations of the special use permit.
(b)
Post construction. After construction is complete,
the permit holder shall establish a contact person, including name
and phone number, for receipt of any complaint concerning any permit
requirements. Upon receipt of complaint from the Town of Wheatfield
Code Enforcement Officer, the permit holder/contact person shall have
seven working days to reply to the Town in writing.
E.
Application and permit fees and costs:
(1)
Application fee. The applicant shall pay all costs
associated with the Town of Wheatfield's review and processing of
the application. The applicant shall submit a deposit with the application
in the amount as determined by resolution by the Town Board. The Town
of Wheatfield may require additional deposits to cover the costs of
reviewing and processing the application. Such additional deposits,
if requested, shall be promptly submitted by the applicant. Following
action on the application, any unused amount of the deposit(s) shall
be returned to the applicant with a summary of the costs incurred.
(2)
Permit fee. The applicant shall pay a permit fee,
in the amount as determined by resolution by the Town Board, to cover
the costs incurred by the Town associated with a commercial WECS special
use permit and building permit, such as administration, inspections
and enforcement.
(3)
Proof of applicable permits. Prior to the issuance
of a building permit, the applicant shall document that all applicable
federal, state, county and local permits have been obtained.
(4)
Proof of insurance. Prior to the issuance of a building
permit, the applicant shall provide the Town Clerk with proof of insurance
in a sufficient dollar amount to cover potential personal and property
damage associated with construction and operation thereof.
(5)
The Town of Wheatfield reserves the right to, by local
law, provide that no exemption pursuant to the provision of the New
York State Real Property Tax Law (RPTL) § 487 shall be applicable
within its jurisdiction.
F.
Findings:
(1)
Findings necessary to grant a commercial WECS special
use permit. In order to grant a commercial WECS special use permit,
the Town of Wheatfield shall review the application, all filings by
any other party, and conduct a public hearing. A commercial WECS special
use permit shall not be granted unless the Town of Wheatfield Planning
Board makes the following findings based on substantial evidence:
(a)
The proposed commercial WECS project is consistent
with the Town of Wheatfield Comprehensive Plan.
(b)
The proposed commercial WECS project will not
unreasonably interfere with the orderly land use and development plans
of the Town of Wheatfield.
(c)
The benefits to the applicant and the public
of the proposed commercial WECS project will exceed any burdens.
(d)
The proposed commercial WECS project will not
be detrimental to the public health, safety or general welfare of
the community.
G.
The Planning Board may grant the special use permit,
deny the special use permit, or grant the special use permit with
written stated conditions. Denial of the special use permit shall
be by written decision based upon substantial evidence submitted to
the Board. Upon issuance of the special use permit, the applicant
shall obtain a building permit for each tower.
H.
The Planning Board shall have the authority to waive
any of the requirements of this commercial WECS chapter, provided
that any waivers are only granted for extenuating circumstances and
do not reduce the intent or protection of the chapter.
(1)
In granting any waivers, the Planning Board shall
take into consideration:
(a)
The benefit of the waiver weighed against the
detriment to the health, safety and welfare of the adjacent properties
and community; and
(b)
Whether an undesirable change will be produced
in the character of the project or neighborhood or a detriment to
nearby properties will be created by the waiving of certain requirements.
(2)
The Planning Board, in waiving any requirements, shall
grant the minimum waivers deemed necessary. The Board must provide,
in writing, its reasoning for issuing waivers.
I.
Before a commercial WECS special use permit can be
assigned or transferred to another operator or owner, notification
shall be given to the Planning Board and the new operator or owner
shall be made aware of and accept the conditions of the commercial
WECS special use permit.
J.
Amendments to special use permit. Any changes or alterations
post construction to the commercial WECS shall be done only by amendment
to the special use permit and subject to all requirements of this
article.
K.
Repair to or replacement of a commercial WECS. Any
repairs made to any component of a commercial WECS or any replacement
of any component of a commercial WECS with a similar component, provided
the use, size and character are not altered and requirements of the
special use permit are not violated, shall be done only by review
and approval of the Building Inspector.
The Town of Wheatfield acknowledges that, prior
to construction of a commercial wind energy conversion system, a wind
site assessment is conducted to determine the wind speeds and feasibility
of using particular sites. Installation of wind measurement towers,
also known as anemometer ("met") towers, shall be permitted by special
use permit in the same zoning districts as the commercial WECS.
A.
An application for a wind measurement tower shall
include:
(1)
Name, address and telephone number of the applicant.
If the applicant is represented by an agent, the application shall
include the name, address and telephone number of the agent as well
as an original signature of the applicant authorizing the representation.
(2)
Name, address and telephone number of the property
owner. If the property owner is not the applicant, the application
shall include a letter or other written permission signed by the property
owner confirming that the property owner is familiar with the proposed
application and authorizing the submission of the application.
(3)
Address of each proposed tower site, including Tax
Map section, block and lot number.
(4)
Site plan.
(5)
Decommissioning plan, including a security bond or
cash for removal.
A.
Testing fund. A commercial WECS special use permit
shall contain a requirement that the applicant fund periodic noise
testing by a qualified independent third-party acoustical measurement
consultant, which may be required as often as every two years or more
frequently upon request of the Town of Wheatfield Town Board in response
to complaints by residents. The scope of the noise testing shall be
to demonstrate compliance with the terms and conditions of the special
use permit and this article and shall also include an evaluation of
any complaints received by the Town. The applicant shall have 90 days
after written notice from the Town Board to cure any deficiency. An
extension of the ninety-day period may be considered by the Town Board,
but the total period may not exceed 180 days.
B.
Operation. A commercial WECS shall be maintained in
operational condition at all times, subject to reasonable maintenance
and repair outages. "Operational condition" includes meeting all noise
requirements and other permit conditions. Should a commercial WECS
become inoperable, or should any part of the commercial WECS be damaged,
or should a commercial WECS violate permit conditions, the owner or
operator shall remedy the situation within 90 days after written notice
from the Town Board. The applicant shall have 90 days after written
notice from the Town Board to cure any deficiency. An extension of
the ninety-day period may be considered by the Town Board, but the
total period may not exceed 180 days.
C.
Notwithstanding any other abatement provision under
this article, if the commercial WECS is not repaired or made operational
or brought into permit compliance after said notice, the Town Board
may, after a public hearing at which the operator or owner shall be
given opportunity to be heard and present evidence, including a plan
to come into compliance, order either remedial action within a particular
time frame or order revocation of the commercial WECS special use
permit and require the removal of the commercial WECS within 90 days.
If the commercial WECS is not removed, the Town Board shall have the
right to use the security posted as part of the decommission plan
to remove the commercial WECS.
A.
All fees shall be approved by the Town Board by resolution.
Nothing in this article shall be read as limiting the ability of the
Town to enter into host community agreements with any applicant to
compensate the Town for expenses or impacts on the community. The
Town shall require any applicant to enter into an escrow agreement
to pay the engineering and legal costs of any application review,
including the review required by SEQRA.
A.
Any person owning, controlling or managing any building,
structure or land who shall undertake the construction or operation
of a commercial WECS in violation of this article or in noncompliance
with the terms and conditions of any permit issued pursuant to this
article or any order of the Code Enforcement Officer and any person
who shall assist in so doing shall be guilty of an offense and subjected
to a fine of not more than $250 or to imprisonment for a period of
not more than six months, or both. Every such person shall be deemed
guilty of a separate offense for each week such violation shall continue.
The Town may institute a civil proceeding to collect civil penalties
in the amount of $250 for each violation, and each week said violation
continues shall be deemed a separate violation.
B.
In case of any violation or threatened violation of
any of the provisions of this article, including the terms and conditions
imposed by any permit issued pursuant to this article, in addition
to other remedies and penalties herein provided, the Town may institute
any appropriate action or proceeding to prevent such unlawful erection,
structural alteration, reconstruction, moving and/or use and to restrain,
correct or abate such violation to prevent the illegal act.
[Adopted 12-14-2009 by L.L. No. 3-2009[1]]
[1]
Editor's Note: This ordinance superseded former Art. II, Residential
WECS, adopted 9-15-2008 by L.L. No. 8-2008.
As used in this article, the following terms
shall have the meanings indicated:
A wind energy conversion system consisting of one wind turbine,
one tower, and associated control or conversion electronics, which
has a rated capacity of not more than 250 kilowatts and a total height
of not more than 150 feet, and is intended to solely supply electrical
power for the use on the subject property.
The height of the wind energy conversion system measured
from the ground elevation to the top of the tip of the blade in the
vertical position.
The support structure, including guyed, monopole and lattice
types, upon which a wind turbine and other mechanical devices are
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 which are designed and used
to convert wind energy into a form of electric energy for sale or
redistribution to others.
A tower used for the measurement of meteorological data,
such as temperature, wind speed and wind direction.
Any piece of electricity-generating equipment that converts
wind energy into electrical energy through the use of airfoils, rotating
turbine blades, or similar devices to capture the wind.
A.
The placement, construction and major modification
of all residential WECS within the boundaries of the Town of Wheatfield
shall be permitted only by special use permit on an operable farm,
as defined by the Town of Wheatfield Assessor's Office, within an
Agriculture-Residential (A-R) Zoning District, upon concurrent site
plan approval issued by the Town of Wheatfield Planning Board, as
provided herein, after SEQR review, with the Town of Wheatfield Planning
Board designated as lead agency, and upon issuance of a building permit,
and shall be subject to all provisions of this Code.
B.
Applications under this article shall be made as follows:
(1)
Applicants for a special use permit to place, construct,
or modify residential WECS within the Town of Wheatfield shall submit
the following information to the Planning Board for its referral to
a professional engineer or consultant for review and recommendation:
(a)
Name and address of the applicant.
(b)
Evidence that the applicant is the owner of
the property involved or has the written permission of the owner to
make such an application.
(c)
A site plan drawn in sufficient detail to show
the following:
[1]
Location of the tower(s) on the site and the
tower height, including blades, wind turbine diameter, and ground
clearance;
[2]
Dimensional representation of the various structural
components of the tower construction, including the base and footing;
[3]
Property lot lines and the location and dimensions
of all existing structures and uses on site within 300 feet of the
residential WECS;
[4]
Proposed plan for restoration after construction
according to NYS Agriculture and Markets and NYS Department of Environmental
Conservation guidelines;
[5]
Certification by a professional engineer licensed
in the State of New York that the tower's design is sufficient to
withstand wind-loading requirements for structures as established
by the New York State Uniform Construction Code; and
[6]
Wind characteristics and dominant wind direction
from which 50% or more of the energy contained in the wind flows.
(d)
Specific information on the type, size, height,
rotor material, rated power output, performance, safety, and noise
characteristics of all residential WECS.
(e)
Photographs or detailed drawings of each wind
turbine model, including the tower and foundation.
(f)
A noise report shall be furnished, which shall
include the following:
[1]
A description and map of the project's noise-producing
features, including the range of noise levels expected and the tonal
and frequency characteristics expected. The noise report shall include
low frequency, infrasound, pure tone, and repetitive/impulsive sound;
[2]
A description and map of the noise-sensitive
environment, including any sensitive noise receptors, i.e., residences,
hospitals, libraries, schools, places of worship, and other facilities
where quiet is important within two miles of the proposed facilities;
[3]
A survey and report prepared by a qualified
engineer that analyzes the preexisting ambient noise regime (including
seasonal variation), including, but not limited to, separate measurements
of low frequency and A-weighted noise levels across a range of wind
speeds (including near cut-in), turbulence measurements, distance
from the turbines, location of sensitive receptors relative to wind
direction, and analyses at affected sensitive receptors located within
two miles of the proposed project site;
[4]
A description and map showing the potential
noise impacts, including estimates of expected noise impacts upon
construction and operation workers and estimates of expected noise
levels at sensitive receptor locations;
[5]
A description of the projects proposed noise-control
features, including specific measures proposed to protect workers
and specific measures proposed to mitigate noise impacts for sensitive
receptors consistent with levels in this Code; and
[6]
Manufacturers' noise design and field testing
data, both audible (dBA) and low frequency (deep bass vibration) for
all proposed structures.
(g)
A geotechnical report (by a licensed professional)
shall be furnished which shall, at a minimum, include the following:
[1]
Foundation design criteria for all proposed
structures.
(h)
A report from the turbine manufacturer stating
the wind speed and conditions that the wind turbine is designed to
withstand (including all assumptions).
(i)
A copy of written notification to the Federal
Aviation Administration (FAA), the local Air Force base, and Mercy
Flight.
(j)
Utility interconnection data and a copy of a
written notification to the utility of the proposed interconnection.
(k)
Notification to microwave communications link
operators: An application that includes any residential WECS which
is located within two miles of any microwave communications link shall
be accompanied by a copy of a written notification to the operator
of the link.
(l)
An application that includes any residential
WECS which is located within a one-hundred-year floodplain area, as
such flood hazard areas are shown on the floodplain maps, shall be
accompanied by a detailed report which shall address the potential
for wind erosion, water erosion, sedimentation, and flooding, and
which shall propose mitigation measures for such impacts.
(m)
Such additional information as may be reasonably
requested by the Town Engineer or Planning Board.
C.
Special use permits issued for residential WECS shall
be subject to the following conditions.
(1)
Minimum lot area:
(a)
The minimum lot area of a farm where a residential
WECS can be located shall be five acres.
(2)
Setbacks. Any residential WECS shall adhere to the
following setbacks.
(a)
From all property lines:
[1]
A minimum 1 1/2 times the total height
of the residential WECS from any property line.
(b)
From residential zoning districts:
[1]
A minimum 500 feet from any residential zoning
district boundary line.
(e)
From aboveground transmission lines greater
than 12 kilovolts:
[1]
A minimum 1 1/2 times the total height
of the residential WECS from any aboveground transmission line greater
than 12 kilovolts.
(f)
Notwithstanding the provisions set forth in
these subsections, such setbacks from property lines do not apply
if the application is accompanied by a legally enforceable agreement
that runs with the property for a period of 25 years or the life of
the special use permit, whichever is longer, that the adjacent landowner(s)
agrees to the elimination of the required setbacks. Any agreement
to the elimination of such property line setbacks shall not constitute
the reduction or elimination of required setbacks from structures,
as previously identified, and such setbacks from structures, for safety
reasons, shall not be reduced or eliminated.
(3)
Maximum overall height:
(a)
The maximum overall height of any residential
WECS shall be 100 feet. The maximum height shall be measured from
the ground elevation to the top of the tip of the blade in the vertical
position.
(4)
Only one residential WECS per legal lot shall be allowed,
or as determined by the Planning Board.
(5)
The power produced from the residential WECS shall
only be used for on-site consumption and at no times shall electricity
be distributed across property lines.
(6)
Residential WECS shall be located in rear yards.
(7)
Notification of adjacent property owners:
(a)
All applicants are required to notify all property
owners within 1,000 feet of the property line of the proposed parcel
where the residential WECS will be erected.
(b)
The adjacent property owners shall be notified
by the Town Clerk in writing within 10 days of the filing of an application
for a residential WECS special use permit with the Town of Wheatfield.
This notification shall include the size, location, and planned construction
date of the residential WECS.
(9)
Color and finish:
(a)
Wind turbines and towers shall be painted a
nonobtrusive (e.g., light environmental color such as white, gray,
or beige) color that is nonreflective.
(b)
The design of residential WECS buildings and
related structures shall, to the extent reasonably possible, use materials,
colors, textures, screening, and landscaping that will blend the facility
to the natural setting and the existing environment.
(10)
Lighting:
(a)
Exterior lighting on any structure associated
with the system shall not be allowed except that which is specifically
required by the FAA.
(11)
Compliance with regulatory agencies:
(a)
The applicant is required to obtain all necessary
regulatory approvals and permits from all federal, state, county,
and local agencies having jurisdiction and approval related to the
completion of the residential WECS.
(b)
The applicant is required to submit a long environmental
assessment form (EAF) with the Town of Wheatfield to comply with the
SEQR process.
(12)
Safety and security requirements:
(a)
Safety shutdown: Each residential WECS shall
be equipped with both manual and automatic controls to limit the rotational
speed of the blade within the design limits of the wind turbine. A
manual electrical and/or over-speed shutdown disconnect switches shall
be provided and clearly labeled on the residential WECS. No wind turbine
shall be permitted that lacks an automatic braking, governing, or
feathering system to prevent uncontrolled rotation, over-speeding,
and excessive pressure on the tower structure, rotor blades, and wind
turbine components.
(b)
All structures which may be charged with lightning
shall be grounded according to applicable electrical code.
(c)
The blade tip of any wind turbine shall, at
its lowest point, have ground clearance of not less than 30 feet.
(d)
Wind turbine towers shall not be climbable up
to 15 feet above ground level.
(e)
All access doors to residential WECS structures
and electrical equipment shall be lockable and shall remain locked
at all times when operator personnel are not present.
(f)
Anchor points for any guy wires for a system
tower shall be located with the property that the system is located
on and not on or across any aboveground electric transmission or distribution
lines. The point of attachment for the guy wires shall be enclosed
by a fence six feet high or sheathed in bright orange or yellow covering
to eight feet above the ground. The minimum setback for the guy wire
anchors shall be 10 feet from the property boundary.
(g)
Appropriate warning signage shall be placed
on wind turbine towers and electrical equipment. Signage shall also
include one twenty-four-hour emergency contact number to the owner
of the wind turbine as well as signage warning of electrical shock
or high voltage and harm from revolving machinery.
(13)
Noise requirements:
(a)
The audible noise standard due to wind turbine
operations shall not be created which causes the noise level at the
boundary of the proposed project site to exceed 45 dBA for more than
five minutes out of any one-hour time period or to exceed 50 dBA for
any time period.
(b)
A residential WECS shall not be operated so
that impulsive sound below 20 Hz adversely affects the habitability
or use of any dwelling unit, hospital, school, library, nursing home,
or other sensitive noise receptor.
(14)
Impact on wildlife species and habitat:
(15)
Interference with residential television, microwave,
and radio reception:
(a)
The applicant must submit information that the
proposed construction of the residential WECS will not cause interference
with microwave transmissions, cellular transmissions, residential
television interference, or radio reception of domestic or foreign
signals.
(b)
The applicant shall include specific measures
proposed to prevent interference, a complaint procedure, and specific
measures proposed to mitigate interference impacts.
(17)
Unsafe and inoperable residential WECS; site
reclamation:
(a)
Unsafe residential WECS, inoperable residential
WECS, and residential WECS for which the special use permit has expired
shall be removed by the owner. All safety hazards created by the installation
and operation of the residential WECS shall be eliminated, and the
site shall be restored to its natural condition to the extent feasible.
A bond or other appropriate form of security shall be required to
cover the cost of the removal and site restoration.
(b)
Every unsafe residential WECS and every inoperable
residential WECS is hereby declared a public nuisance, which shall
be subject to abatement by repair, rehabilitation, demolition, or
removal. An inoperable residential WECS shall not be considered a
public nuisance, provided that the owner can demonstrate that modernization,
rebuilding, or repairs are in progress or planned and will be completed
within no more than six months.
(c)
A residential WECS shall be deemed inoperable
if it has not generated power within the preceding six months.
(18)
Erosion control:
(a)
Before the Town of Wheatfield shall issue a
grading or building permit for the residential WECS, the applicant
shall submit an erosion control plan to the Engineering Department
for its review and approval.
(b)
The plan shall minimize the potential adverse
impacts on wetlands and Class I and II streams and the banks and vegetation
along those streams and wetlands and minimize erosion or sedimentation.
(19)
Certification:
(a)
The foundation, tower, wind turbine, and compatibility
of the tower with related equipment shall be certified in writing
by a structural engineer registered in New York State. The engineer
shall certify compliance with good engineering practices and compliance
with the appropriate provisions of the Uniform Construction Code that
has been adopted in New York State.
(b)
After completion of the residential WECS, the
applicant shall provide a post-construction certification from a professional
engineer licensed in the State of New York that the project complies
with applicable codes and industry practices and has been completed
according to the design plans.
(c)
The electrical system shall be certified in
writing by an electrical engineer registered in New York. The engineer
shall certify compliance with good engineering practices and with
the appropriate provisions of the Electric Code that has been adopted
by New York State.
(d)
The wind turbine over-speed control system shall
be certified in writing by a mechanical engineer registered in New
York State. The engineer shall certify compliance with good engineering
practices.
(e)
A certificate of completion must be supplied
by the applicant and approved by the Town of Wheatfield Code Enforcement
Officer.
D.
Monitoring requirements for residential WECS:
(1)
Upon reasonable notice, Town of Wheatfield officials
or their designated representatives may enter a lot on which a residential
WECS special use permit has been granted for the purpose of compliance
with any permit requirements. Twenty-four hours' advance notice by
telephone to the owner/operator or designated contact person shall
be deemed reasonable notice.
(2)
Unless waived by the Planning Board, a residential
WECS shall be inspected annually by a professional engineer licensed
in the State of New York that has been approved by the Town or at
any other time, upon a determination by the Town's Code Enforcement
Officer, that the wind turbine, tower, or other residential WECS components
have sustained structural damage, and a copy of the inspection report
shall be submitted to the Town Code Enforcement Officer. Any fee or
expense associated with this inspection shall be borne entirely by
the permit holder.
(3)
General complaint process:
(a)
During construction, the Town of Wheatfield
Code Enforcement Officer can issue a stop order at any time for any
violations of the special use permit.
(b)
After construction is complete, the permit holder
shall establish a contact person, including name and phone number,
for receipt of any complaint concerning any permit requirements. Upon
receipt of a complaint from the Town of Wheatfield Code Enforcement
Officer, the permit holder/contact person shall have seven working
days to reply to the Town in writing.
E.
Application fees and costs:
(1)
The applicant shall pay all costs associated with
the Town of Wheatfield's review and processing of the application.
The applicant shall submit a deposit with the application in the amount
as determined by resolution by the Town Board. The Town of Wheatfield
may require additional deposits to cover the costs of reviewing and
processing the application. Such additional deposits, if requested,
shall be promptly submitted by the applicant. Following action on
the application, any unused amount of the deposit(s) shall be returned
to the applicant with a summary of the costs incurred.
(2)
The applicant shall pay a permit fee, in the amount
as determined by resolution of the Town Board, to cover the costs
incurred by the Town associated with a residential WECS special use
permit and building permit, such as administration, inspections and
enforcement.
(3)
Prior to the issuance of a building permit, the applicant
shall document that all applicable federal, state, county and local
permits have been obtained.
(4)
Prior to the issuance of a building permit, the applicant
shall provide the Town Clerk with proof of insurance in a sufficient
dollar amount to cover potential personal and property damage associated
with construction and operation thereof.
F.
Findings:
(1)
Findings necessary to grant a residential WECS special
use permit: In order to grant a residential WECS special use permit,
the Town of Wheatfield shall review the application, all filings by
any other party, and conduct a public hearing. A residential WECS
special use permit shall not be granted unless the Town of Wheatfield
Planning Board makes the following findings based on substantial evidence:
(a)
The proposed residential WECS project is consistent
with the Town of Wheatfield Comprehensive Plan.
(b)
The proposed residential WECS project will not
unreasonably interfere with the orderly land use and development plans
of the Town of Wheatfield.
(c)
The benefits to the applicant and the public
of the proposed residential WECS project will exceed any burdens.
(d)
The proposed residential WECS project will not
be detrimental to the public health, safety, or general welfare of
the community.
G.
The Planning Board may grant the special use permit,
deny the special use permit, or grant the special use permit with
written stated conditions. Denial of the special use permit shall
be by written decision based upon substantial evidence submitted to
the Board. Upon issuance of the special use permit, the applicant
shall obtain a building permit for each tower.
H.
The Planning Board, on request from the applicant, shall have the authority to waive any of the requirements of this article, except for zoning districts in which residential WECS are permitted by special use permit; Subsections C(1) minimum lot size; C(2) setbacks; C(3) height regulations; and C(4), number of residential WECS per lot, can only be reduced through a variance obtained from the Town of Wheatfield Zoning Board of Appeals. The Planning Board must provide, in writing, its reasoning for issuing waivers.
I.
Any changes or alterations post construction to the
residential WECS shall be done only by amendment to the special use
permit and subject to all requirements of this article.
A.
A residential WECS shall be maintained in operational
condition at all times, subject to reasonable maintenance and repair
outages. "Operational condition" includes meeting all noise requirements
and other permit conditions. Should a residential WECS become inoperable,
or should any part of the residential WECS be damaged, or should a
residential WECS violate permit conditions, the owner or operator
shall remedy the situation within 90 days after written notice from
the Town Board. The applicant shall have 90 days after written notice
from the Town Board to cure any deficiency. An extension of the ninety-day
period may be considered by the Town Board, but the total period may
not exceed 180 days.
B.
Notwithstanding any other abatement provision under
this article, if the residential WECS is not repaired or made operational
or brought into permit compliance after said notice, the Town Board
may, after a public hearing at which the operator or owner shall be
given opportunity to be heard and present evidence, including a plan
to come into compliance, order either remedial action within a particular
time frame or order revocation of the residential WECS special use
permit and require the removal of the residential WECS within 90 days.
If the residential WECS is not removed, the Town Board shall have
the right to use the security posted as part of the decommission plan
to remove the residential WECS.
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 the construction or operation
of a residential WECS in violation of this article or in noncompliance
with the terms and conditions of any permit issued pursuant to this
article or any order of the Code Enforcement Officer, and any person
who shall assist in so doing, shall be guilty of an offense and subjected
to a fine of not more than $250 or to imprisonment for a period of
not more than six months, or both. Every such person shall be deemed
guilty of a separate offense for each week such violation shall continue.
The Town may institute a civil proceeding to collect civil penalties
in the amount of $250 for each violation, and each week said violation
continues shall be deemed a separate violation.
B.
In case of any violation or threatened violation of
any of the provisions of this article, including the terms and conditions
imposed by any permit issued pursuant to this article, in addition
to other remedies and penalties herein provided, the Town may institute
any appropriate action or proceeding to prevent such unlawful erection,
structural alteration, reconstruction, moving and/or use, and to restrain,
correct, or abate such violation, to prevent the illegal act.
