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.
As used in this chapter, the following terms
shall have the meanings indicated:
ACCESSORY FACILITIES OR EQUIPMENT
Any structure other than a wind turbine, related to the use
and purpose of deriving, collecting or distributing energy from such
wind turbines located on or associated with a wind energy facility,
small wind energy facility or wind measurement tower.
PERMIT
A permit issued pursuant to this chapter granting the holder
the right to construct, maintain and operate a wind energy facility,
small wind energy facility or wind measurement tower.
PUBLIC ROAD
Any federal, state, county, city, Town or village road which
is open to the public, or private road regularly used by multiple
persons for access to separate off-site parcels of land, access to
which is unrestricted by the owner(s) of said private road.
RESIDENCE
Any dwelling located off-site which is suitable for habitation on the date a wind energy facility, small wind energy facility or wind measurement tower permit application is received by the Town and deemed complete by the Planning Board in accordance with §
269-9 of this chapter, and for which a valid certificate of occupancy has been issued or should have been issued prior to such date. A residence may be part of a multifamily dwelling or multipurpose building, and shall include buildings such as hotels or motels, hospitals, day-care centers, dormitories, sanitariums and nursing homes.
SETBACK AGREEMENT
Any agreement, contract, easement, covenant or right in land
which burdens land for the benefit of an applicant or permittee, such
that the burdened land is similar in character to land on which any
wind energy facility is located. A setback agreement must expressly
release any right which the owner(s) of such burdened land may have
in the enforcement of this chapter, and acknowledge the applicable
requirements of this chapter. All setback agreements shall run with
the land and be recorded to apprise any potential purchasers of such
land of the same at least for as long as any permit issued under this
chapter shall remain in effect. In the event a setback agreement lapses
prior to full decommissioning of the wind energy facility, small wind
energy facility or wind measurement tower, the previously burdened
land shall be considered off-site and the applicant, permittee or
owner of the same shall be required to bring the project into conformance
with the requirements of this chapter.
SITE
The parcel(s) of land where a wind energy facility, small
wind energy facility or wind measurement tower is to be placed. The
site can be publicly or privately owned by an individual or a group
of individuals controlling single or adjacent properties. Where multiple
lots are in joint ownership, the combined lots shall be considered
as one for purposes of applying setback requirements. Any property
which has a wind energy facility, small wind energy facility or wind
measurement tower or has entered an agreement for said facility or
a setback agreement shall not be considered "off-site."
SMALL WIND ENERGY FACILITY
A wind energy conversion system consisting of a wind turbine,
a tower, and associated control or conversion electronics and electrical
collection and distribution equipment, and accessory facilities or
equipment, which has a nameplate capacity of not more than 100 kilowatts.
TOTAL HEIGHT
The highest point above ground level of any improvement related
to a wind energy facility, small wind energy facility or wind measurement
tower. Total height as applied to wind turbines shall include the
highest point of any wind turbine blade above the tower.
WIND ENERGY FACILITY
Any wind turbine or array of wind turbines designed to deliver
electricity to the power grid for sale with a combined production
capacity of more than 100 kilowatts, including all related infrastructure,
electrical collection and distribution lines and substations, access
roads and accessory structures, including accessory facilities or
equipment.
WIND MEASUREMENT TOWER
A tower used for the measurement of meteorological data such
as temperature, wind speed and wind direction.
WIND TURBINE
A wind energy conversion system consisting of turbine blades
and hub connected to a drive train and electrical generator housed
in a nacelle mounted on a tower together with associated control or
conversion electronics and equipment.
A complete application for a wind energy facility
permit, small wind energy facility permit or wind measurement tower
permit shall include:
A. A completed application for a permit on a form provided
by the Town Zoning Officer, Code Enforcement Officer or other Town
designee.
B. A site plan prepared by a licensed professional engineer,
including:
(1) Property lines and physical dimensions of the site;
(2) Location, approximate dimensions and types of existing
structures and uses on the site, public roads, and adjoining properties
within 500 feet of the boundaries of any proposed wind turbine, accessory
facilities or equipment, or 1 1/2 times the total height of such
wind turbines, whichever shall be greater;
(3) Location of each proposed wind turbine, wind measurement
tower and accessory facilities or equipment;
(4) Location of all above- and below-ground utility lines
on the site as well as transformers, the interconnection point with
transmission lines, and other ancillary facilities or structures,
including, without limitation, accessory facilities or equipment;
(5) Locations of setback distances as required by this
chapter;
(6) All other proposed facilities, including, without
limitations, access roads, electrical substations, storage or maintenance
units, and fencing;
(7) All site plan application materials required under §
270-129 of the Zoning Law of the Town of Rotterdam; and
(8) Such other information as may be required by the Planning
Board.
C. The proposed make, model, picture and manufacturer's
specifications of the proposed wind turbine and tower model(s), including
noise decibel data, and material safety data sheet documentation for
all materials used in the operation of the equipment shall be provided
for each proposed wind turbine. If a particular wind turbine has not
been selected by the applicant at the time of application due to a
constraint as to the availability of equipment or the inability of
the applicant to obtain appropriate supplier commitments, such information
shall nevertheless be provided to the Planning Board with an acknowledgement
that the type of wind turbine may be modified during application review.
D. A proposed lighting plan to be submitted to and reviewed
by the Federal Aviation Administration for any structure equal to
or more than 200 feet above ground, or as may otherwise be required
by the Federal Aviation Administration or local, state or federal
law or regulation.
E. A construction schedule describing anticipated commencement
and completion dates, including a traffic analysis with a description
of the routes to be used by construction and delivery vehicles.
F. An operations and maintenance plan providing for regular
periodic maintenance schedules, any special maintenance requirements.
Procedures and notification requirements for restarts during icing
events should be proposed and established by the Planning Board.
G. List of property owners, with their mailing addresses,
within 500 feet of the outer boundaries of the proposed site.
H. Application requirements for wind energy facilities
only:
(1) A decommissioning plan that provides for an estimation
of decommissioning costs, the method of ensuring that funds shall
be available for decommissioning and restoration of the site and any
off-site areas disturbed by or utilized during decommissioning, the
method by which the decommissioning cost estimate and funding shall
be kept current, and the manner in which the wind energy facility
shall be decommissioned.
(2) A complaint resolution process to address complaints
from nearby residents.
(3) A transportation plan (see §
269-13) describing routes to be used in delivery of project components, equipment and building materials and those to be used to provide access to the site during and after construction. Such plan shall also describe any anticipated improvements to existing roads, bridges or other infrastructure, as well as measures which will be taken to restore damaged/disturbed access routes following construction.
(4) A fire protection and emergency response plan to address
emergency response and coordinate with local emergency response providers
during any construction or operation phase emergency, hazard or other
event and funding mechanism for any special first responder equipment
and/or training if any, to address emergency/rescue situations.
(5) Predicted wind-turbine-only sound analysis.
(a)
A sound level analysis shall be prepared to
determine predicted sound levels at off-site property lines and residences
from operation of wind turbines. Such analysis shall be referred to
as "wind turbine Only Sound." The analysis shall include the sound
level, dBA, for the wind turbine operating at rated power output and
for the wind turbine shut down.
(b)
Wind-turbine-only sound shall be predicted based
upon appropriate ambient noise levels obtained from field or laboratory
measurements of the wind turbine proposed to be installed. Daytime
and nighttime ambient noise levels of the site and nearby off-site
areas shall be determined for wind speeds corresponding to rated operation
of the wind turbine and for wind speed of one meter/second or less.
(c)
Except as otherwise provided herein, wind turbines
shall be located so that predicted wind-turbine-only sound at ground-level
property lines shall not exceed the appropriate ambient noise level
by eight dBA, and wind-turbine-only sound at residences shall not
exceed the appropriate ambient noise level by four dBA with the turbine
operating or shut down. If the spectra of the wind-turbine-only sound
contain dominant, steady pure tones, as for instance a whine, screech
or hum, the standards for audible noise set forth in this subsection
shall be reduced by four dBA. A pure tone is defined to exist if the
one-third octave band sound pressure level in the band, including
the tone, exceeds the average of the sound pressure levels of the
two contiguous bands by five dBA for center frequencies of 500Hz or
above, eight dBA for center frequencies between 160 Hz and 400 Hz,
or by 15 dBA for center frequencies less than or equal 125 Hz. Exceedence
of these noise standards shall be deemed a violation of the permit.
(d)
Statement of projected noise measurements.
[1]
The applicant shall provide a statement listing
the existing and maximum future projected measurements of noise from
the proposed wind energy conversion facility, measured in decibels
Ldn (logarithmic scale, accounting for greater sensitivity at night),
for the following:
[a]
Existing or ambient: the measurements of existing
noise.
[b]
Existing plus the proposed wind energy conversion
facility: maximum estimate of noise from the proposed facility plus
the existing noise environment.
[2]
Such statement shall be certified and signed
by a qualified engineer, stating that noise measurements are accurate
and meet the noise standards of this chapter and applicable state
requirements.
(6) A post-construction sound monitoring plan shall be
developed which, at a minimum, requires annual certification by a
qualified engineer of the permittee or applicant to the Planning Board
that the wind energy facility remains in conformance with the requirements
of this chapter. If no complaints regarding noise are received in
a five-year period from operation, the applicant may request that
the annual certification be suspended.
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.
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.
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.