[HISTORY: Adopted by the Town Board of the
Town of Rotterdam 10-8-2008 by L.L. No. 10-2008. Amendments noted
where applicable.]
This chapter may be cited as the "Town of Rotterdam
wind energy facility Law."
The purpose of this chapter is to guide the
construction and operation of wind energy facilities, small wind energy
facilities and wind measurement towers in the Town of Rotterdam, Schenectady
County, subject to reasonable conditions that will protect the public
health, safety and welfare.
The Town Board of the Town of Rotterdam enacts
this chapter under the authority granted by § 10 of the
Municipal Home Rule Law.
The requirements of this chapter shall apply
to all wind energy facilities, small wind energy facilities and wind
measurement towers proposed, operated, modified, or constructed within
the municipal boundaries of the Town of Rotterdam, Schenectady County.
Wind energy facilities, small wind energy facilities and wind measurement
towers shall be allowed throughout all areas of the Town subject to
the requirements of this chapter.
A.
Permit requirement. No wind energy facility, small
wind energy facility or wind measurement tower shall be constructed,
reconstructed, modified, or operated in the Town of Rotterdam except
by first obtaining, as applicable, a wind energy facility permit,
small wind energy facility permit or wind measurement tower permit
as provided under this chapter.
B.
Permitting authority. The Town of Rotterdam Planning Board as established pursuant to § 270-179 of the Zoning Law of the Town shall have sole discretion to review, consider and issue wind energy facility permits, small wind energy facility permits and wind measurement tower permits in accordance with this chapter.
C.
Exemptions. In the event that an applicant or permittee
intends to undertake in-kind replacement of a wind energy facility,
small wind energy facility or wind measurement tower, the Town Code
Enforcement Officer, Building Inspector or other Town designee shall
be notified prior to any such replacement. The Town Code Enforcement
Officer, Building Inspector or other Town designee may approve such
in-kind replacement or refer the applicant or permittee to the Planning
Board to determine whether a wind energy facility, small wind energy
facility or wind measurement tower permit must first be obtained.
As used in this chapter, the following terms
shall have the meanings indicated:
Any structure other than a wind turbine, related to the use
and purpose of deriving, collecting or distributing energy from such
wind turbines located on or associated with a wind energy facility,
small wind energy facility or wind measurement tower.
A permit issued pursuant to this chapter granting the holder
the right to construct, maintain and operate a wind energy facility,
small wind energy facility or wind measurement tower.
Any federal, state, county, city, Town or village road which
is open to the public, or private road regularly used by multiple
persons for access to separate off-site parcels of land, access to
which is unrestricted by the owner(s) of said private road.
Any dwelling located off-site which is suitable for habitation on the date a wind energy facility, small wind energy facility or wind measurement tower permit application is received by the Town and deemed complete by the Planning Board in accordance with § 269-9 of this chapter, and for which a valid certificate of occupancy has been issued or should have been issued prior to such date. A residence may be part of a multifamily dwelling or multipurpose building, and shall include buildings such as hotels or motels, hospitals, day-care centers, dormitories, sanitariums and nursing homes.
Any agreement, contract, easement, covenant or right in land
which burdens land for the benefit of an applicant or permittee, such
that the burdened land is similar in character to land on which any
wind energy facility is located. A setback agreement must expressly
release any right which the owner(s) of such burdened land may have
in the enforcement of this chapter, and acknowledge the applicable
requirements of this chapter. All setback agreements shall run with
the land and be recorded to apprise any potential purchasers of such
land of the same at least for as long as any permit issued under this
chapter shall remain in effect. In the event a setback agreement lapses
prior to full decommissioning of the wind energy facility, small wind
energy facility or wind measurement tower, the previously burdened
land shall be considered off-site and the applicant, permittee or
owner of the same shall be required to bring the project into conformance
with the requirements of this chapter.
The parcel(s) of land where a wind energy facility, small
wind energy facility or wind measurement tower is to be placed. The
site can be publicly or privately owned by an individual or a group
of individuals controlling single or adjacent properties. Where multiple
lots are in joint ownership, the combined lots shall be considered
as one for purposes of applying setback requirements. Any property
which has a wind energy facility, small wind energy facility or wind
measurement tower or has entered an agreement for said facility or
a setback agreement shall not be considered "off-site."
A wind energy conversion system consisting of a wind turbine,
a tower, and associated control or conversion electronics and electrical
collection and distribution equipment, and accessory facilities or
equipment, which has a nameplate capacity of not more than 100 kilowatts.
The highest point above ground level of any improvement related
to a wind energy facility, small wind energy facility or wind measurement
tower. Total height as applied to wind turbines shall include the
highest point of any wind turbine blade above the tower.
Any wind turbine or array of wind turbines designed to deliver
electricity to the power grid for sale with a combined production
capacity of more than 100 kilowatts, including all related infrastructure,
electrical collection and distribution lines and substations, access
roads and accessory structures, including accessory facilities or
equipment.
A tower used for the measurement of meteorological data such
as temperature, wind speed and wind direction.
A wind energy conversion system consisting of turbine blades
and hub connected to a drive train and electrical generator housed
in a nacelle mounted on a tower together with associated control or
conversion electronics and equipment.
A complete application for a wind energy facility
permit, small wind energy facility permit or wind measurement tower
permit shall include:
A.
A completed application for a permit on a form provided
by the Town Zoning Officer, Code Enforcement Officer or other Town
designee.
B.
A site plan prepared by a licensed professional engineer,
including:
(1)
Property lines and physical dimensions of the site;
(2)
Location, approximate dimensions and types of existing
structures and uses on the site, public roads, and adjoining properties
within 500 feet of the boundaries of any proposed wind turbine, accessory
facilities or equipment, or 1 1/2 times the total height of such
wind turbines, whichever shall be greater;
(3)
Location of each proposed wind turbine, wind measurement
tower and accessory facilities or equipment;
(4)
Location of all above- and below-ground utility lines
on the site as well as transformers, the interconnection point with
transmission lines, and other ancillary facilities or structures,
including, without limitation, accessory facilities or equipment;
(5)
Locations of setback distances as required by this
chapter;
(6)
All other proposed facilities, including, without
limitations, access roads, electrical substations, storage or maintenance
units, and fencing;
(7)
All site plan application materials required under § 270-129 of the Zoning Law of the Town of Rotterdam; and
(8)
Such other information as may be required by the Planning
Board.
C.
The proposed make, model, picture and manufacturer's
specifications of the proposed wind turbine and tower model(s), including
noise decibel data, and material safety data sheet documentation for
all materials used in the operation of the equipment shall be provided
for each proposed wind turbine. If a particular wind turbine has not
been selected by the applicant at the time of application due to a
constraint as to the availability of equipment or the inability of
the applicant to obtain appropriate supplier commitments, such information
shall nevertheless be provided to the Planning Board with an acknowledgement
that the type of wind turbine may be modified during application review.
D.
A proposed lighting plan to be submitted to and reviewed
by the Federal Aviation Administration for any structure equal to
or more than 200 feet above ground, or as may otherwise be required
by the Federal Aviation Administration or local, state or federal
law or regulation.
E.
A construction schedule describing anticipated commencement
and completion dates, including a traffic analysis with a description
of the routes to be used by construction and delivery vehicles.
F.
An operations and maintenance plan providing for regular
periodic maintenance schedules, any special maintenance requirements.
Procedures and notification requirements for restarts during icing
events should be proposed and established by the Planning Board.
G.
List of property owners, with their mailing addresses,
within 500 feet of the outer boundaries of the proposed site.
H.
Application requirements for wind energy facilities
only:
(1)
A decommissioning plan that provides for an estimation
of decommissioning costs, the method of ensuring that funds shall
be available for decommissioning and restoration of the site and any
off-site areas disturbed by or utilized during decommissioning, the
method by which the decommissioning cost estimate and funding shall
be kept current, and the manner in which the wind energy facility
shall be decommissioned.
(2)
A complaint resolution process to address complaints
from nearby residents.
(3)
A transportation plan (see § 269-13) describing routes to be used in delivery of project components, equipment and building materials and those to be used to provide access to the site during and after construction. Such plan shall also describe any anticipated improvements to existing roads, bridges or other infrastructure, as well as measures which will be taken to restore damaged/disturbed access routes following construction.
(4)
A fire protection and emergency response plan to address
emergency response and coordinate with local emergency response providers
during any construction or operation phase emergency, hazard or other
event and funding mechanism for any special first responder equipment
and/or training if any, to address emergency/rescue situations.
(5)
Predicted wind-turbine-only sound analysis.
(a)
A sound level analysis shall be prepared to
determine predicted sound levels at off-site property lines and residences
from operation of wind turbines. Such analysis shall be referred to
as "wind turbine Only Sound." The analysis shall include the sound
level, dBA, for the wind turbine operating at rated power output and
for the wind turbine shut down.
(b)
Wind-turbine-only sound shall be predicted based
upon appropriate ambient noise levels obtained from field or laboratory
measurements of the wind turbine proposed to be installed. Daytime
and nighttime ambient noise levels of the site and nearby off-site
areas shall be determined for wind speeds corresponding to rated operation
of the wind turbine and for wind speed of one meter/second or less.
(c)
Except as otherwise provided herein, wind turbines
shall be located so that predicted wind-turbine-only sound at ground-level
property lines shall not exceed the appropriate ambient noise level
by eight dBA, and wind-turbine-only sound at residences shall not
exceed the appropriate ambient noise level by four dBA with the turbine
operating or shut down. If the spectra of the wind-turbine-only sound
contain dominant, steady pure tones, as for instance a whine, screech
or hum, the standards for audible noise set forth in this subsection
shall be reduced by four dBA. A pure tone is defined to exist if the
one-third octave band sound pressure level in the band, including
the tone, exceeds the average of the sound pressure levels of the
two contiguous bands by five dBA for center frequencies of 500Hz or
above, eight dBA for center frequencies between 160 Hz and 400 Hz,
or by 15 dBA for center frequencies less than or equal 125 Hz. Exceedence
of these noise standards shall be deemed a violation of the permit.
(d)
Statement of projected noise measurements.
[1]
The applicant shall provide a statement listing
the existing and maximum future projected measurements of noise from
the proposed wind energy conversion facility, measured in decibels
Ldn (logarithmic scale, accounting for greater sensitivity at night),
for the following:
[2]
Such statement shall be certified and signed
by a qualified engineer, stating that noise measurements are accurate
and meet the noise standards of this chapter and applicable state
requirements.
(6)
A post-construction sound monitoring plan shall be
developed which, at a minimum, requires annual certification by a
qualified engineer of the permittee or applicant to the Planning Board
that the wind energy facility remains in conformance with the requirements
of this chapter. If no complaints regarding noise are received in
a five-year period from operation, the applicant may request that
the annual certification be suspended.
A.
Compliance with the State Environmental Quality Review
Act ("SEQRA") shall be required.
B.
Applicants shall submit the following materials to
the Town of Rotterdam Planning Board:
(1)
Small wind energy facilities and wind measurement
towers: Applicants shall be required to prepare and submit Part 1
of a full environmental assessment form.
(2)
Wind energy facilities: Applicants shall be required
to prepare and submit a full environmental assessment form which,
unless a lead agency other than the Planning Board has already been
established in accordance with the requirements of the State Environmental
Quality Review Act, shall be distributed by the Planning Board to
all involved agencies prior to any determination of significance by
the lead agency. All environmental impact statements for wind energy
facilities shall contain, but not be limited to:
(a)
A visual impact analysis, including:
[1]
Mapping of scenic resources of statewide significance,
as defined by the New York State Department of Environmental Conservation
Visual Policy (Policy DEP-00-2), and of local significance, as officially
listed by the relevant municipality within the study area.
[2]
Viewshed mapping and/or cross-section analysis
to identify areas (including the significant resources identified
above) with potential views of the project.
[3]
Description of the character and quality of
the affected landscape.
[4]
Photographic simulations of what the proposed
project will look like from a reasonable number of representative
viewpoints within the five-mile-radius study area to be selected in
consultation with the Planning Board.
[5]
Evaluation of the project's visual impact based
on the viewshed mapping and photographic simulations described above.
[6]
Recommended visual mitigation measures (in accordance
with DEC Policy DEP-00-2), if warranted, based on the results of the
impact evaluation described above.
(b)
An avian impact study: Appropriate bird and
bat migration, nesting and habitat studies shall be submitted. The
applicant shall solicit input from the New York State Department of
Environmental Conservation on such studies and shall follow any required
protocols established, adopted or promulgated by the Department.
(c)
Archaeological and architectural impact analysis:
The applicant shall solicit input from the New York State Historic
Preservation Office.
(d)
Fiscal and economic impact analysis.
(e)
An assessment of potential electromagnetic interference
with microwave, radio, television, personal communication systems,
911 and other wireless communication.
(f)
An assessment of potentially impacted wetland,
surface water and groundwater resources, and the geology and land
use of the site, as well as an assessment of construction phase impacts,
traffic impacts and adverse sound impacts which may arise from project
construction or operation.
(g)
An assessment of potential shadow flicker at
off-site residences and roadways.
A.
Applicants must arrange a preapplication meeting with
the Department of Public Works and consultants retained by the Town
for application review.
B.
Following the preapplication meeting, 12 copies of
the application shall be submitted to the Town Planner or other Town
designee. Payment of all application fees shall be made at the time
of submission.
C.
The Planning Board shall hold at least one public
hearing on the application. Notice shall be published in the Town's
official newspaper, no less than five days before any hearing, but,
where any hearing is adjourned by the Planning Board to hear additional
comments, no further publication shall be required. The public hearing
may be combined with public hearings on any environmental impact statement
or requested waivers. All adjoining property owners within 1,500 feet
of the outer boundary of the site shall be given written notice of
a public hearing via certified mail at the expense of the applicant.
D.
Notice of the project shall also be given in accordance
with the General Municipal Law.
E.
Following the holding of the public hearing and completion
of the SEQRA process, the Planning Board may approve, approve with
conditions, or deny the permit application, in accordance with the
standards in this chapter. All approvals and denials shall be in writing,
setting forth competent reasons for such approval or denial.
The following standards shall apply to wind
energy facilities only:
A.
Unless an environmental constraint prohibits burial,
all power transmission lines from the tower to any building, substation,
or other structure shall be located underground in accordance with
National Electrical Code standards, unless an environmental constraint
requires such transmission lines to be located above ground.
B.
Wind turbines and towers must be white in color.
C.
No advertising signs are allowed on any part of the
wind energy facility, including fencing and support structures.
D.
No tower shall be lit except to comply with Federal
Aviation Administration (FAA) requirements. Minimum security lighting
for ground-level facilities shall be allowed as approved on the wind
energy facility development plan.
E.
The wind energy facility shall be designed to minimize
the impacts of land clearing and the loss of important open spaces.
Development on agricultural lands shall follow the Guidelines for
Agricultural Mitigation for Wind Power Projects published by the New
York State Department of Agriculture and Markets.
F.
Stormwater run-off and erosion control shall be managed
in a manner consistent with all applicable local, state and federal
laws and regulations and such standards as shall be applied by the
Planning Board on the advice of the Town consultants.
G.
Wind turbines shall be located in a manner that minimizes
shadow flicker on residences and roadways.
H.
No wind energy facility shall be installed in any
location where its proximity with existing fixed broadcast, retransmission,
or reception antennas for radio, television, or wireless phone or
personal communication systems would produce electromagnetic interference
with signal transmission or reception. No wind energy facility shall
be installed in any location along the major axis of an existing microwave
communications link where its operation is likely to produce electromagnetic
interference in the link's operation. If it is determined that a wind
energy facility is causing electromagnetic interference, the operator
shall take the necessary corrective action to eliminate this interference,
including relocation or removal of the facilities, or resolution of
the issue with impacted parties.
A.
Except as provided herein, each wind turbine associated
with a wind energy facility shall be set back as follows:
(1)
A distance no less than 1,500 feet from residences.
(2)
A distance no less than the greater of 1.5 times the
total height of the wind turbine or 500 feet from off-site property
boundaries.
(3)
A distance no less than the greater of 1.5 times the
total height of the wind turbine or 500 feet from public roads.
B.
Small wind energy facility wind turbines and wind
measurement towers shall be set back from off-site property boundaries
at least 1.5 times the structure height.
C.
Except as provided herein, the sound pressure level generated by a wind energy facility or small wind energy facility shall not exceed the sound levels required and established in accordance with § 269-7H(5)(c) of this chapter. Compliance shall periodically be determined by the Town Code Enforcement Officer, or such other officer or employee which the Town Board may designate. This shall be the only project operation phase noise requirement applicable to a project under this chapter, except that the Planning Board may impose appropriate additional requirements in accordance with § 269-14 of this chapter.
E.
Wind energy facilities shall not exceed 500 feet in
total height. Small wind energy facility wind turbines and wind measurement
towers shall not exceed 200 feet in total height. Any small wind energy
facility wind turbine or wind measurement tower which exceeds 200
feet in total height shall be reviewed by the Planning Board and considered
a wind energy facility for purposes of this chapter, except that the
preparation of a draft environmental impact statement shall be at
the discretion of the Planning Board and in accordance with the State
Environmental Quality Review Act.
F.
Prior to issuance of a building permit for wind energy
facilities only, the applicant shall provide the Town proof, in the
form of a duplicate insurance policy or a certificate issued by an
insurance company, of liability insurance, of a level to be determined
by the Town Board in consultation with the Town's insurer, to cover
damage or injury which might be caused by or result from the operation
or maintenance of such wind energy facility.
A.
All wind turbines shall have an automatic braking,
governing or feathering system to prevent uncontrolled rotation, overspeeding
and excessive pressure on the tower structure, rotor blades and turbine
components.
B.
With the exception of electrical collection and distribution
lines, accessory facilities or equipment shall be gated, fenced or
secured appropriately to prevent unrestricted public access to the
facilities.
C.
Warning signs shall be posted at the entrances to
the wind energy facility and at the base of each tower warning of
electrical shock or high voltage and containing emergency contact
information.
D.
The minimum distance between the ground and any part
of the rotor or blade system shall be 30 feet for any wind turbine
associated with a wind energy facility, and 15 feet for any wind turbine
associated with a small wind energy facility.
E.
Wind energy facilities shall be designed to prevent
unauthorized external access to electrical and mechanical components
and shall have access doors that are kept securely locked at all times.
F.
Prior to issuance of a building permit for wind energy
facilities only, the applicant shall provide the Town proof, in the
form of a duplicate insurance policy or a certificate issued by an
insurance company, of liability insurance, of a level to be determined
by the Town Board in consultation with the Town's insurer, to cover
damage or injury which might be caused by or result from the operation
or maintenance of such wind energy facility.
The provisions of this section shall apply to
wind energy facilities only.
A.
Designated traffic routes for construction and delivery
vehicles to minimize traffic impacts, wear and tear on local roads
and impacts on local business operations shall be proposed by the
applicant and reviewed by the Planning Board.
B.
To the extent the designated traffic routes will include
use of Town, county, or state roads, the applicant is responsible
for executing a road use agreement with the appropriate agency which
shall provide for the remediation of damaged roads upon completion
of the installation or maintenance of a wind energy facility, and
for adequate maintenance of the roads during construction of the wind
energy facility such that the roads will remain open and passable.
Prior to the issuance of any building permit, the cost of remediating
road damage shall be secured in the form of a bond, letter of credit
or other surety acceptable to the appropriate agency and sufficient
to compensate the agency for any damage to public roads.
C.
The applicant shall provide predevelopment and post-development
photographic evidence of the condition of Town, county, or state roads
to be traveled upon by construction and delivery vehicles.
Issuance of wind energy facility, small wind
energy facility and wind measurement tower permits and certificates
of conformity shall be as follows:
A.
The Planning Board shall, within 180 days of either
issuing SEQRA findings or a SEQRA negative declaration or conditioned
negative declaration, issue a written decision with the reasons for
approval, conditions of approval or disapproval fully stated. This
time period may be extended with consent of the applicant.
B.
The Planning Board is hereby expressly empowered to
impose conditions governing the issuance of the permit as well as
construction and operational phases of the project which it deems
necessary and appropriate to ensure compliance with this chapter,
the State Environmental Quality Review Act, conformity of project
construction and operation with representations made by the applicant
during the application review process, as well as with any determinations
or findings issued by the Planning Board or any other involved agency
under the State Environmental Quality Review Act, compliance with
any other federal, state or local laws or regulations applicable to
the project, and as may be necessary to promote the public health,
safety and welfare.
C.
If approved, the Planning Board shall direct the Town
Zoning Officer, Code Enforcement Officer, Building Inspector or other
designee authorized by the Town Board to issue a permit upon satisfaction
of any and all conditions precedent set forth under this chapter,
the terms of approval or conditions of the permit or any additional
requirement of the Town Board imposed in connection with any other
project approval or agreement deemed necessary to the issuance of
the permit.
D.
The decision of the Planning Board shall be filed
within five days in the office of the Town Clerk and a copy shall
be mailed to the applicant by first class mail.
E.
If any approved wind energy facility, small wind energy
facility or wind measurement tower is not completed within 24 months
of issuance of the permit, the permit shall expire unless the Planning
Board shall have granted an extension.
F.
Upon commissioning of the project, which for purposes
of wind energy facilities and small wind energy facilities shall mean
the conversion of wind energy to electrical energy for on-site use
or distribution to the electrical grid, and for purposes of wind measurement
towers shall mean the collection of wind speed and/or other data by
the wind measurement tower equipment, the Town Zoning Officer, Code
Enforcement Officer, Building Inspector or other designee authorized
by the Town Board shall determine whether the project is in compliance
with the permit. If the Town Zoning Officer, Code Enforcement Officer,
Building Inspector or other designee determines the project is in
compliance with the Permit, a certificate of conformity shall be promptly
issued to the permittee.
A.
If any wind turbine stops converting wind energy into
electrical energy and/or distribution of that energy for on-site use
or transmission onto the electrical grid for a continuous period of
12 months, the applicant/permittee shall remove said system at its
own expense following the requirements of the decommissioning plan
required under this chapter or any permit. In measuring the period
of continuous inactivity, operations that are temporary in nature
(energy is distributed for fewer than 14 continuous days and followed
by a period of inactivity) shall not restart, suspend, or otherwise
toll the running of the aforesaid twelve-month time period. The Town
Board may grant an extension to this time period for one year or less.
B.
At such time that a wind energy conversion facility
is scheduled to be abandoned or discontinued, the applicant will notify
the Town by certified U.S. mail of the proposed date of abandonment
or discontinuation of operations. Such notice shall be given no less
than 30 days prior to abandonment or discontinuation of operations.
In the event that an applicant fails to give such notice, the facility
shall be considered abandoned upon such discontinuation of operations.
C.
Upon abandonment or discontinuation of use, the carrier
shall physically remove the wind energy conversion facility within
90 days from the date of abandonment or discontinuation of use. "Physically
remove" shall include, but not be limited to:
(1)
Removal of all machinery, equipment, equipment shelters
and security barriers from the subject property.
(2)
Proper disposal of the waste materials from the site
in accordance with local and state solid waste disposal regulations.
(3)
Restoring the location of the wind energy conversion
facility to its natural condition, except that any landscaping, grading
or below-grade foundation shall remain in the "after" condition.
D.
If an applicant fails to remove a wind energy conversion
facility in accordance with this chapter, the Town shall have the
authority to enter the subject property and physically remove the
facility.
E.
The Planning Board or Town Board may require the applicant
to post a bond or letter of credit at the time of construction to
cover costs of the removal in the event the Town must remove the facility.
The amount of such bond or letter of credit shall be reviewed and
approved by the Planning Board under the approved decommissioning
plan.
All wind energy facilities, small wind energy facilities and wind measurement towers shall be maintained in operational condition at all times, subject to reasonable maintenance and repair outages. Operational condition includes meeting all noise requirements and other permit conditions. Should a wind turbine or wind measurement tower become inoperable, or any part of a wind energy facility or small wind energy facility be damaged, or should a violation of a permit condition occur, the permittee, owner or operator shall remedy the failure within 90 days. Upon a failure to perfect a timely remedy, project operation shall cease. Application of this section of the chapter shall in no way extend or toll any time periods set forth under § 269-15 of this chapter.
A.
Upon application for a wind energy facility permit,
the applicant shall pay a permit fee equal to $500 per megawatt of
proposed nameplate capacity of a project. Upon application for a small
wind energy facility permit or wind measurement tower permit, the
applicant shall pay a permit fee of $100. This permit fee shall be
used to offset any internal costs the Town may occur in administering
a permit and shall be in addition to any application fee or other
fees or host community payments required of the applicant.
B.
In addition to any fees collected in accordance with Subsection A of this section, the Town Planning Board, Zoning Officer, Building Inspector, Code Enforcement Officer and Town Board may hire any consultant and/or experts necessary to assist the Town in reviewing and evaluating permit applications, including, but not limited to, site inspections, the construction and modification of the site once permitted, and any requests for certification or recertification that the project is in conformity with the permit or the Law. An applicant shall deposit with the Town funds sufficient to reimburse the Town for all reasonable costs of consultant and expert evaluation and consultation to the Town in connection with the review of the application.
A.
Waivers.
(1)
The Planning Board may grant a waiver from the strict application of the provisions of this chapter to improve the quality of any existing wind energy facility, small wind energy facility or wind measurement tower and to better protect the health, safety and welfare of the Town. Area requirements, including setbacks, noise requirements and height limits, shall not be waived by the Planning Board except as described in § 269-11 of this chapter.
(2)
The Planning Board shall consider the impact of the
waiver on the neighborhood, including the potential benefits or detriment
to nearby properties, the benefits or detriments to the applicant,
feasible alternatives and the magnitude of the request. The Planning
Board may attach such conditions as it deems appropriate to waiver
approvals to ensure that such waiver adequately protects the public
health, safety and welfare.
B.
Immaterial modifications.
(1)
Unless expressly limited by a condition imposed in
the Permit, the Town Zoning Officer, Code Enforcement Officer, Building
Inspector or other Town designee may, during project construction,
allow immaterial modifications to the design of the project as represented
in the final set of site plans reviewed and considered by the Planning
Board. Such immaterial modifications shall only be allowed, if at
all, in response to a written request by the applicant or permittee.
All such requests shall be submitted in writing, addressed to the
authorized Town designee, with copies to the Chairman of the Planning
Board, the Town Planner or other Town designee, and the Town's designated
consultants. The Planning Board Chairman shall review the proposed
immaterial modifications and, if deemed necessary, require the applicant
to appear before the Planning Board to grant approvals for the modifications.
(2)
Immaterial alterations shall only include a change in the location, type of material or method of construction of a wind energy facility, small wind energy facility or wind measurement tower that will not result in any material increase in any environmental impact of the project as compared to the impacts reviewed and accepted for the project by the Town Planning Board; cause the project to violate any applicable setbacks or other requirements of this chapter; or cause the project to not conform to the SEQRA determination or findings issued by the Planning Board. The applicant or permittee shall be required to acknowledge to the Town in written form that the requested modification is immaterial in accordance with the requirements of this § 269-18. At the request of the Town designee, Planning Board, Town's designated consultants or the Town Board, the Town may commission appropriate analyses to verify this acknowledgement, and the cost of any such analysis shall be paid in accordance with § 269-17 of this chapter.
A.
Enforcement officer. The Town of Rotterdam Town Board shall designate an officer of the Town to enforce the provisions of this chapter. Such designated officer may, with the consent of the Town Board, contract with professional consultants to assist in the enforcement and administration of this chapter. Such professional fees shall be the responsibility of the applicant to pay (see § 269-17). In the absence of a designated enforcement officer, the Town Code Enforcement Officer shall be considered the enforcement officer for purposes of this chapter.
B.
Penalties. Any person owning, controlling, operating
or managing a wind energy facility, small wind energy facility or
wind measurement tower in violation of this chapter or in noncompliance
with the terms and conditions of any permit issued pursuant to this
chapter, or any order of the enforcement officer, and any person who
shall assist in so doing, shall be guilty of a violation of this chapter
and subject to a fine of no less than $500 nor more than $1,000 or
imprisonment for a period not to exceed 15 days, or both, for conviction
of a first offense; for conviction of a second offense, both of which
were committed within a period of five years, punishable by a fine
not less than $1,000 nor more than $1,500 or imprisonment for a period
not to exceed 15 days, or both; and upon conviction for a third or
subsequent offense, all of which were committed within a period of
five years, punishable by a fine not less than $1,500 nor more than
$2,000 or imprisonment for a period not to exceed 15 days, or both.
Each day of continued violation shall constitute a separate, additional
offense.
[Amended 6-12-2013 by L.L. No. 7-2013]
C.
Special proceeding. The designated enforcement officer
may, with the consent of the Town Board, institute an action or proceeding
available at law to prevent, correct or abate any unlawful construction,
erection, structural alteration, reconstruction, modification and/or
use of a wind energy facility, small wind energy facility or wind
measurement tower in the Town. This shall be in addition to other
remedies and penalties herein provided or available at law.
