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.