[Added 8-13-2008 by L.L. No. 2-2008[1]]
[1]
Editor's Note: This local law also repealed
original Section 609, Alternative Energy Systems, as amended 7-10-2007
by L.L. No. 2-2007.
The purpose of these supplemental requirements
and standards is to regulate the development of a wind energy conversion
project (wind turbines) and related structures in the Town of Barre.
This article is to be consistent with the general purposes stated
in the Comprehensive Plan of the Town, to accommodate the necessary
infrastructure for the provision of commercial wind powered electricity
generation facilities so that they may be developed in a manner hereby
deemed to be compatible with the general health, welfare and safety
of the residents of the Town of Barre. Furthermore, this article is
enacted to address the visual, aesthetic and the land use compatibility
aspects of wind energy conversion units, and more specifically to:
A.
Encourage the location of wind energy conversion units
in areas where adverse impacts on the community are minimized.
B.
Encourage the configuration of wind energy conversion
units in a way that minimizes adverse visual impact of the towers.
C.
Encourage the co-location or shared use of proposed
and existing wind energy conversion unit sites.
This article is enacted pursuant to the following
authority granted by:
B.
New York Statute of Local Governments § 10,
Subdivisions 1, 6 and 7.
C.
New York Municipal Home Rule Law § 10, Subdivision
1(i) and (ii) and Subdivision 1(a)(6), (11), (12) and (14).
D.
The supersession authority of New York Municipal Home
Rule Law section 10(2)(d)(3).
E.
New York Town Law Article 16 (Land Use).
F.
New York Town Law § 130, Subdivision 1 (Building
code), Subdivision 3 (Electrical code), Subdivision 5 (Fire prevention),
Subdivison 7 (Use of streets and highways), Subdivision 7-a (Location
of driveways), Subdivision 11 (Peace, good order and safety), Subdivision
15 (Promotion of public welfare), Subdivision 15-a (Excavated lands),
Subdivision 16 (Unsafe buildings), Subdivision 19 (Trespass), and
Subdivision 25 (Building lines).
G.
New York Town Law § 64, Subdivision 17-a
(protection of aesthetic interests) and Subdivision 23 (General powers).
The Town Board of the Town of Barre finds and
declares that:
A.
Wind energy is an abundant, renewable, and nonpolluting
energy resource of the Town, and its conversion to electricity may
reduce dependence on nonrenewable energy sources and decrease the
emission of hydrocarbons that result from the use of conventional
energy sources.
B.
The generation of electricity from properly sited
wind turbines, including private systems, can be cost effective, and
in many cases, existing power distribution systems can be used to
transmit electricity from wind-generating stations to utilities or
other users, or on-site consumption can be reduced.
C.
Regulation of the siting and installation of wind
turbines is necessary for the purposes of protecting the environment
as well as the health, safety and welfare of neighboring property
owners and the general public from any potential impacts, including,
but not limited to, those set forth herein.
D.
Wind energy systems represent significant potential
aesthetic impacts because of their large size, lighting, shadow flicker
effects, and visual impacts associated with collection systems.
E.
If not properly regulated, installation of wind energy
conversion systems can create drainage problems through erosion and
lack of sediment control for system sites and access roads, and harm
farmlands through improper construction methods.
F.
Wind energy conversion systems may present a risk
to bird and bat populations if not properly cited.
G.
If not properly sited, wind energy conversion systems
may present risks to the property values of adjoining property owners.
H.
Wind energy conversion systems can be a significant
source of noise, which if unregulated can negatively impact adjoining
properties.
I.
Construction of wind energy conversion systems can
create traffic problems and damage local roads.
J.
Wind energy conversion systems can cause electromagnetic
interference issues with various types of communications.
K.
Wind energy conversion systems can impact on emergency
and response services.
L.
Wind energy conversion systems can have environmental
impacts on wetlands, streams and other natural habitats.
M.
Wind energy conversion systems can impact area groundwater,
private wells and particularly, as a result of blasting, operations
that might be necessary for construction of such systems.
As used in this article, the following terms
shall have the meanings indicated:
Any structure, other than a wind energy conversion unit,
related to the use and purpose of deriving energy from such towers
located at the wind energy conversion system.
Any person or entity applying to develop, own, locate, construct
or operate a wind energy conversion system within the Town. All requirements
placed upon an applicant under this article or by way of approval
of a permit issued hereunder shall be fully and completely binding
upon the owner, his/her/its successors, heirs and assigns of the wind
energy conversion system being submitted for review hereunder.
The intermittent reflection of the sun off the surface of
the blades of a wind energy conversion unit.
Status applied to a wind energy conversion unit when it has
been nonproductive for a period of one year, or when the unit or project
no longer provides a useful service.
A level distance perpendicular to the base equal to the total
height of the wind energy conversion unit plus the rotor at a full
and upright vertical position.
The portion of the wind energy conversion unit that connects
the rotor to the support tower and houses the generator, gearbox,
drive train and braking system.
The Town of Barre Planning Board.
A meeting announced and advertised in advance, and open to
the public, with the public given an opportunity to talk, participate
and express their opinions, support or concerns.
Any permanent structure or mobile home for human habitation
with electric power and running water.
A strip of land acquired by reservation, dedication, forced
dedication, prescription or condemnation and intended to be occupied
by a road, crosswalk, railroad, electric transmission lines, oil or
gas pipeline, water line, sanitary storm sewer, and other similar
uses.
The area of land measured along the ground out a horizontal
distance in any direction from the structure or facility being regulated
under this article.
The effect from the sun shining through the turning blades
on the wind energy conversion unit and casting a shadow over the landscape,
most noticeably during sunrise and sunset.
Tip height is equal to the distance from the ground to the
tip of the rotor blade in a full and upright vertical position.
Tower height is equal to the distance from the ground to
the top of the tower not including the nacelle or rotor blades.
Site where one or more wind energy conversion unit or wind
turbines will be located, including all accessory facilities or equipment.
All structures and facilities utilized or necessary for the
normal operation of the project being submitted by an applicant under
this article, including, but not limited to, wind energy conversion
units, all accessory facilities and equipment thereto, and/or any
portion thereof.
Any tower, pole or other structure, whether attached to a
building or freestanding, designed to be used for the support of a
rotor that consists of blades and hub, as well as a nacelle and generator
for the purpose of producing electricity.
One or more towers, poles or other structures, whether attached
to a building or freestanding, designed to be used for the support
of a rotor that consists of blades and hub, as well as a nacelle and
generator for the purpose of producing electricity intended to provide
wholesale electricity production for delivery on the local transmission
network. Any wind energy conversion unit/wind turbine not meeting
the definition of a wind energy conversion unit/wind turbine (small
project) shall, for the purposes of this article, be considered a
wind energy conversion unit/wind turbine (large project).
One or two towers, poles or other structures,
whether attached to a building or freestanding, designed to be used
for the support of a rotor that consists of blades and hub, as well
as nacelle and generator for the purpose of producing electricity
intended to reduce on-site consumption of utility power. Such towers
shall be limited in height to 150 feet and to a power generating rating
of 250 kw (kilowatts).
Any wind energy conversion unit/wind turbine
not meeting this definition shall, for the purposes of this article,
be considered a wind energy conversion unit/wind turbine (large project).
A district which encompasses part or parts of one or more
underlying districts and that establishes requirements for wind energy
conversion systems.
A tower used for the measurement of meteorological data such
as temperature, wind speed, and wind direction.
A.
The Town Board of the Town of Barre hereby adopts
the rules and procedures for creating Wind Energy Overlay Zones to
allow consideration of the effective and efficient use of the Town's
wind energy resource through wind energy conversion systems (WECS),
and to regulate or prohibit the placement of such systems so that
the public health, safety and welfare will not be jeopardized.
B.
A Wind Energy Overlay District may be created in any
zoning districts of the Town of Barre consistent with the rules and
procedures established herein.
C.
Initial requests for Wind Energy Overlay Districts
shall be submitted with applications for WECS special use permits.
No Wind Energy Overlay District may be initially created without specific
requests for special use permits for individual WECS.
D.
Once a Wind Energy Overlay District has been created,
new WECS or accessory structures or facilities may be added in that
district by grant of a special use permit pursuant to the requirements
of this article.
A.
The Town Board is hereby authorized to approve, approve
with conditions, or disapprove wind energy conversion project applications
with the advice and written recommendations of the Town Planning Board.
B.
No wind energy conversion system or any portion thereof
shall be located or operated in the Town unless and in accordance
with a special use permit duly issued by the Town Board under this
article and the other applicable provisions of this chapter.
C.
No wind energy conversion system or any portion thereof
shall be constructed, reconstructed, modified, or operated in the
Town of Barre, except in a Wind Energy Overlay District, pursuant
to an application for rezoning and for a special use permit and building
permit approved pursuant to this article.
D.
The Town Board shall determine, on a case-by-case
basis, based upon the specific aspects of the application and the
complexity of the application, whether an independent professional
engineer and/or consultant will be required to assist in the review
of an application, including review of SEQRA documentation and outside
legal services on behalf of the Town. If so determined that such independent
professional or consulting services are required, the applicant shall
be responsible for any and all fees associated with such services.
The costs of such services shall be limited to the reasonable standard
fees for such independent third party as determined upon review of
such fees charged by such consultant in the Town and surrounding municipalities
to the Town. Upon submission of the application, the Town shall obtain
a good faith estimate of the fees to be charged by said independent
third-party consultant and advise the applicant of said estimate of
fees to which the applicant shall remit an amount to the Town equal
to such estimate within 15 days of such demand. These funds shall
be held by the Town in trust to reimburse and be drawn upon by the
Town when the Town incurs and pays the appropriate voucher for such
third-party services. Should the fees for such third-party consultant
exceed said estimated amount, the applicant shall immediately deliver
and file with the Town an additional sum in an amount equal to the
original estimated amount, or such sum as deemed appropriate and necessary
to cover the remaining charges anticipated to be incurred by the Town
thereafter. Any funds held in trust following completion of said third-party
review shall be returned to the applicant upon presentation of a duly
executed voucher seeking the same. If the applicant fails to pay any
and all such fees incurred relative to such independent third-party
services or the estimated fees to be deposited in trust with the Town
prior to the date such fees are demanded to be paid by the Town to
the Town, such failure shall constitute a withdrawal of the applicant's
application under this article and thereafter such application shall
be considered null and void by the Town for all purposes relative
thereto.
E.
No wind measurement tower shall be constructed, reconstructed,
modified or operated in the Town of Barre except pursuant to a special
use permit and building permit issued pursuant to this article.
F.
Notwithstanding any other provisions of this article
or other portions of this chapter, special use permits for wind energy
conversion systems shall be issued by the Town Board.
G.
Transfer. No transfer of any wind energy conversion
system or special use permit will occur without prior approval of
the Town, which approval shall be granted upon written acceptance
by the transferee of the obligations of the transfer or under this
article, and the transferee's demonstration, in the sole discretion
of the Town Board, that it can meet the technical and financial obligations
of the transferor. No transfer shall eliminate the liability of the
transferor nor of any other party under this article unless the entire
interest of the transferor in all facilities in the Town is transferred
and there are no outstanding obligations or violations.
H.
Notwithstanding the other requirements of this article,
replacement in kind or modification of a wind energy conversion system
may occur without Town Board approval when:
A.
The applicant for the proposed development of a wind
energy conversion project shall submit 15 copies of the application
and site plan showing the following information, unless such information
requirements are waived by the Town Board for good cause shown. In
addition, the Town Board may request, and the applicant shall provide,
any and all additional information the Town Board and Town Planning
Board might deem necessary for review of such application.
(1)
Name of the project, an instrument survey map
indicating boundary lines of the parcel (or parcels) that the project
will include and the proposed site location(s), date, north arrow,
scale of the plan, and Tax Map identification number(s). The maps
shall include an overall map of the project, as well as individual
site maps for each proposed wind energy conversion unit location.
(2)
Name and address of the owner(s) of record of
the parcel(s) where the project is proposed to be sited, name and
address of the project sponsor and the seal, including the name and
address of the engineer, architect, or surveyor preparing, or assisting
in the preparation of, the site plan. If the property owner is not
the applicant, the application shall include a letter, or other written
permission, signed by the property owner:
(3)
Name and addresses of all property owners of
record, as indicated in the Town Assessor's office, of all adjacent
property owners to the project and all property owners of any and
all parcels within the property setback requirements as specified
in § 350-103A of this article.
(4)
A plot plan prepared by a licensed surveyor
or engineer drawn in sufficient detail and scale to clearly describe
the following:
(a)
Property lines and physical dimensions of the
site;
(b)
Location, approximate dimensions and types of
major existing structures, including all residences and uses on the
site, public roads, and adjoining properties within 1,000 feet of
the boundaries of the proposed Wind Energy Overlay Zone.
(c)
Location and elevation of each proposed wind
energy conversion unit.
(d)
Location of all aboveground utility lines on
the site or within one radius of the total (tip) height of the proposed
wind energy conversion unit(s), transformers, power lines, interconnection
point with transmission lines, microwave and communication towers,
and other ancillary facilities or structures.
(e)
Location of all structures, both residential
and commercial, within 1,000 feet of each proposed tower. The distance
from the center of the tower to any off-site residence within 1,000
feet shall be noted.
(f)
All proposed facilities, including access roads,
electrical lines, substations, storage or maintenance units and fencing.
(g)
Proposed boundaries of the Wind Energy Overlay
Zone.
(h)
The location, alignment and width of existing
and proposed easements and rights-of-way.
(5)
A map showing existing and proposed topography
at five-foot intervals.
(6)
Vertical drawing of the wind energy conversion
system showing tip height, turbine dimensions, tower and turbine colors,
ladders, distance between the ground and the lowest point of any blade,
location of climbing pegs and access doors. One drawing may be submitted
for each wind energy conversion system of the same type and total
height.
(7)
A landscape plan showing all existing natural
land features, trees, forest cover and all proposed permanent changes
to these features, including size and type of plant material and erosion
control measures, to be included in the project upon completion. Also
to be included are temporary erosion control methods to be used during
the construction of the WECS.
(8)
A fully completed State Environmental Quality
Review Act (SEQRA)[1] environmental assessment form (EAF). If a positive declaration
of environmental significance is determined by the SEQRA lead agency,
the following information, at a minimum, shall be included in the
draft environmental impact statement (DEIS) prepared for a wind energy
conversion system. Otherwise, the following studies, at a minimum,
shall be submitted with the application:
(a)
A visual impact study assessing the visibility
of the project from key viewpoints relative to such project, existing
tree lines, and proposed elevations. This study shall be digitally
enhanced to simulate the appearance of the as-built project as such
completed project would appear from distances specified by the Town
Board or Planning Board within a five-mile radius of the location
of such project, or any portion thereof. Additional pictures from
specific locations may be required by the Town Board or Planning Board,
and all such pictures shall be in color and no smaller than five inches
by seven inches.
(b)
The applicant shall provide a shadow flicker
and blade glint study for the area within the boundaries of the parcel
upon which the project, or any portion thereof, is to be sited and
for any additional area located within a radius of one mile beyond
the boundaries of each wind turbine. Such information shall include
a shadow flicker zone map and documentation of the nonreflective coating
for the blades. Accompanying such information shall be the proposed
schedule with which the nonreflective coating for the blades shall
be reapplied as based on the manufacturers suggested life of the coating
product. The study will:
[1]
Designate and describe the zones within the
project where shadow flicker is likely to affect existing residential
structures, roadways and other similar areas of public or private
use. The study shall represent the most probable scenarios of wind
constancy, sunshine constancy, and wind direction and speed;
[2]
Identify the most likely locations of shadow
flicker, estimate the expected duration of such shadow flicker at
these locations per day, and calculate the potential total number
of hours per year at each location such shadow flickers may occur;
[3]
Identify potential problem zones where shadow
flicker may interfere with existing residences and roadways, and describe
proposed measures to mitigate these problems, including, but not limited
to, a change in siting of the unit, a change in operation of the unit,
or grading or landscaping mitigation measures; and
[4]
Provide tax identification numbers for all properties
within the potential shadow flicker zones.
(c)
Noise analysis. The applicant shall provide
a noise analysis prepared by a competent acoustical consultant documenting
the noise level as associated with the proposed wind energy conversion
system. The study shall predict noise levels at property lines and
at the nearest residence not on the site (if access to the nearest
residence is not available, the Town Board may modify this requirement).
The noise analysis shall provide preexisting ambient noise levels
and include low-frequency noise.
(d)
Property value analysis. This study shall be
prepared by a licensed and certified real estate appraiser, in accordance
with industry standards, regarding the potential impact of values
of properties adjoining wind energy conversion system sites, including
properties across public roads from the site.
(e)
An assessment of potential electromagnetic interference
with microwave, radio, television, personal communications systems
and other forms of wireless communication.
[1]
Editor's Note: See Environmental Conservation
Law § 8-0101 et seq.
(9)
Tower design information sufficient to demonstrate
compliance with wind-loading, and other applicable state and federal
codes and requirements.
(10)
An analysis of potential ice-throwing and damage
from blade throw impacts.
(11)
Documentation of the proposed intent and capacity
of energy generation to be derived from the completed project. In
addition, the applicant shall, prior to the receipt of a building
permit, demonstrate that the proposed WECS meets system reliability
requirements of the New York independent system operator, or provide
proof that it has executed an interconnection agreement with the New
York State independent operator and/or the applicable transmission
owner.
(12)
Preliminary report prepared by the applicant
describing:
(a)
Surrounding topography in relation to the capabilities
for generation of electricity by wind and why the project site was
selected for development.
(b)
Required improvements for construction activities,
including those within the public right-of-way or land controlled
by the Town of Barre.
(c)
Proposed mitigation measures for visual impacts
of any and all components, structures, and materials related to the
wind energy conversion project, including, but not limited to, wind
energy conversion units, substation(s), meteorological (MET) towers,
support structures and access roads.
(d)
Proposed safety measures to mitigate any potential
wind energy conversion unit failure.
(e)
Documentation and justification for any proposed
land clearing around structures within the project.
(13)
Elevation map showing the wind energy conversion
unit's height and design, including a cross-section of the structure
and components of the nacelle; statement of compliance documenting
the unit's compliance with applicable structural standards; and the
wind energy conversion unit's abilities in terms of producing energy.
(14)
Lighting plan. This must include location and
type of lighting, as well as the expected impact on residential property
within a five-mile radius of the project, and must be in compliance
with Federal Aviation Administration (FAA) minimum lighting requirements.
The application should include a copy of the determination by the
FAA to establish required markings and/or lights for the structures.
But if such determination is not available, at the time of the application,
no special use permit or building permit for any lighted facility
may be issued until such determination is submitted.
(15)
Decommissioning plan.
(a)
The applicant shall submit a decommissioning
plan, which shall include at a minimum:
[1]
The anticipated life of the wind energy conversion
system;
[2]
The estimated decommissioning costs in current
dollars;
[3]
How said estimate was determined;
[4]
The method of insuring that funds will be available
for decommissioning and restoration;
[5]
The method, such by annual reestimate by a licensed
engineer, that the decommissioning cost will be kept current;
[6]
The manner in which the wind energy conversion
system will be decommissioned and the site restored, which shall include
removal of all structures and debris to a depth of three feet, or
greater where required by other law, regulation or guideline, restoration
of vegetation (consistent and compatible with surrounding vegetation)
less any fencing or residual minor improvements requested by the landowner.
(b)
The plan shall include the decommissioning bond
required by this article.
(c)
The decommissioning plan shall be in accordance
with New York State Department of Agriculture and Markets regulations
and guidelines where applicable.
(16)
Description of the applicant's twenty-year plan
for the project that shall include the estimated market demand and
long-term project expansion needs within the Town associated with
the project for the duration of the required twenty-year plan.
(17)
Report showing soil logs and soil profile analysis
for any area being disturbed as part of the project. The report shall
indicate any anticipated need for blasting and the information relied
upon for such anticipated blasting.
(18)
Plans to prevent the pollution of surface water
or groundwater, erosion of soil both during and after construction,
excessive runoff, and flooding of other properties. The plan shall
outline the following:
(a)
The impact the project will have on surface
runoff and erosion, groundwater and wells, including projected impact
on existing downstream drainage infrastructure.
(b)
Steps to mitigate any anticipated issues, including
a stormwater pollution prevention plan (SWPPP) in accordance with
NYSDEC General Permit requirements.
(c)
Plans to revisit the project at no less than
two-year intervals, for a period of four years, to confirm the impact
was as anticipated and take corrective action if necessary
(19)
The applicant shall, in consultation with the
Town of Barre Volunteer Fire Department and Orleans County Hazardous
Response Teams, establish an emergency preparedness plan, in the event
of an emergency requiring immediate response or attention during the
construction and operation of the wind energy conversion project or
any portion thereof.
(20)
The applicant shall present a spill containment
response plan, to be implemented in the event of any environmental
contamination resulting from, but not limited to, oil or other chemicals.
A performance bond or other appropriate mechanism shall be required
to deal with this situation.
(21)
Proof of all required financial surety or other
similar financial requirements relative to the project. Such proof
may include, but is not limited to, proof of liability insurance,
decommissioning funds, development mitigation funds and whatever other
financial requirements relative to the application.
(22)
Complaint resolution. The application will include
a complaint resolution process to address complaints from nearby residents
both during construction and while any WECS is in place. The process
may use an independent mediator or arbitrator and include a reasonable
time limit for acting on a complaint.
(23)
An application shall include information relating
to construction/installation of the wind energy conversion system
as follows:
(a)
A construction schedule describing commencement
and completion dates;
(b)
A WECS traffic routes plan addressing the standards
set forth in § 350-103G(3) herein below.
(24)
A statement, signed under penalty of perjury,
that the information contained in the application is true and accurate.
B.
Waivers. In the case of applications for small WECS
projects, the Town Board may reduce the required number of copies
of the application to be submitted and may waive those application
requirements set forth above that may not be relevant to the project.
A.
Applicants may request a preapplication meeting with
the Town Board or with any consultants retained by the Town Board
for application review.
B.
Payment of all application fees shall be made at the
time of application submission. If variances are requested, variance
application fees shall also be paid at the time of application submission.
C.
Town staff or Town-designated consultants shall, within
60 days of receipt, or such longer time if agreed upon by the applicant,
determine if all information required under this article is included
in the application.
D.
If the application is deemed incomplete, the Town
Board or its designated reviewer shall provide the applicant with
a written statement listing the missing information. No refund of
application fees shall be made, but no additional fees application
fees shall be required upon submitted of the additional information
unless the number of wind energy conversion units proposed is increased.
E.
Upon submission of a complete application, including
the grant of any application waiver by the Town Board, the Town Clerk
shall transmit the application to the Town Board and the Town Planning
Board. The applicant shall post the completed application and any
accepted environmental impact statements on the Internet.
F.
The Town Board shall hold at least one public hearing
on the application. Notice shall be given by first-class mail to property
owners within 1,000 feet of the boundaries of the proposed Wind Energy
Overlay District, and published in the Town's official newspaper,
no less than 10 nor more than 20 days before any hearing, but where
any hearing is adjourned by the Town Board to hear additional comments,
no further publication or mailing shall be required. The Town will
prepare the mailing and mail the notice of public hearing prepared
by the Town. The assessment roll of the Town shall be used to determine
mailing addresses.
G.
The public hearing may be combined with public hearings
on any environmental impact statement or requested variances.
I.
SEQRA review. Applications for wind energy conversion
systems are deemed Type I projects under the State Environmental Quality
Review Act (SEQRA).[1] The Town shall conduct its SEQRA review in conjunction
with other agencies, and the record of the review by said agencies
shall be part of the record of the Town's proceedings. At the completion
of the SEQRA review process if a positive declaration of environmental
significance has been issued and an environmental impact statement
prepared, the Town shall issue a statement of findings, which statement
may also serve as the Town's decision on the application(s).
[1]
Editor's Note: See Environmental Conservation
Law § 8-0101 et seq.
J.
Upon receipt of the report of the recommendations
of the County Planning Board, where applicable, and the report of
the recommendation of the Town Planning Board, where applicable, the
holding of the public hearing, and the completion of the SEQRA process,
the Town Board may approve, approve with conditions, or deny the application(s).
Wind energy conversion systems and all related
structures thereto may be permitted to be constructed within the Town
only upon receiving prior special use permit approval from the Town
Board and issuance of building permits. The application for a special
use permit shall only be granted if the application complies with
the following requirements and such other reasonable conditions that
the Town Board requires as part of any conditional approval issued
hereunder:
A.
Location. All wind energy conversion systems shall
be located, erected and sited in accordance with the following requirements:
(1)
No individual wind energy conversion unit shall
be installed in any location along the major axis of existing communications
links or telephone transmission lines where the operation is likely
to produce interference in said link's operation. If such problem
is found to exist, such problem shall be resolved at the applicant's
sole and complete expense to the satisfaction of the property owner
and/or the Town Code Enforcement Officer.
(2)
No individual wind energy conversion unit shall
be installed in any location where such unit's proximity with existing
fixed broadcast, or reception antenna (including residential reception
antenna or satellite system) for radio, television or wireless phone
or other personal communication systems where such unit would produce
interference with signal transmission or reception. The applicant
shall correct (or document significant progress toward corrective
action on) any unforeseen interference to the satisfaction of the
Code Enforcement Officer within 30 days of any complaint being given
to the applicant by the Code Enforcement officer or affected person.
To correct such problem:
(a)
The applicant shall provide the affected person(s)
with service equal to or better than the service that was interrupted,
or an acceptable alternative to such service has been agreed to by
the Code Enforcement Officer and the affected property owner.
(b)
If emergency service needs have been affected,
such problem shall be remedied by the applicant within 36 hours of
notification being given to the applicant by the Code Enforcement
Officer or affected person.
(3)
All wind energy conversion units shall be located
in a manner that minimizes significant negative impacts on rare animal
species in the vicinity, particularly bird and bat species.
(4)
No individual wind energy generating unit shall
be installed in any location where it may interfere with the normal
flight patterns at area airports and private airstrips.
(5)
Wind energy conversion systems and related infrastructure
shall be located in a manner consistent with all applicable state
and federal wetlands laws and regulations.
(6)
The use of guy wires is prohibited except in
the case of a wind energy conversion unit/wind turbine (small project).
(7)
No advertising signs, or television, radio,
cellular telephone or other communication antennas are allowed on
any part of the wind energy conversion system, including fencing and
support structures. Signage to inform persons of ownership and contact
information is permitted so long as such signage is erected in accordance
with Town Law.
(8)
All wind energy conversion units shall only
be located, installed, or constructed on the subject parcel in accordance
with the following setbacks:
(a)
A distance not less than 1.5 times the tip height
of the wind energy generating unit as measured from any and all public
roadways or aboveground power lines in the vicinity of said unit,
to the base of such unit.
(b)
A distance not less that 1,000 feet from any
existing residential or commercial building. This distance may be
reduced for WECS small projects.
(c)
A distance not less than 1.5 times the tip height
of the wind energy generating unit as measured from the property lines
of the parcel on which said unit is to be sited.
B.
Noise.
(1)
The level of noise produced by or from the operation
of the wind energy conversion system shall not exceed 45 dBA 10 (which
means the 45 dBA may statistically be exceeded only 10% of the time
six minutes of every hour) measured at a distance of 1,000 feet from
the base of the wind energy conversion unit or that portion of the
wind energy conversion system causing the noise level that is in violation
of these requirements. During any allowed period of sound level excedence,
as set forth hereinabove, the noise level shall not exceed 51 dBA.
(2)
In the event that the ambient noise level (exclusive
of the development in question) exceeds the applicable standard given
above, the applicable standard shall be adjusted so as to equal the
ambient noise level. The ambient noise level shall be expressed in
terms of the highest whole number sound pressure level in dBA, which
is not exceeded for more than six minutes per hour (L 90). Ambient
noise levels shall be measured at a distance of 1,000 feet from the
base of the wind energy conversion unit. Ambient noise level measurement
techniques shall employ all practical means of reducing the effect
of wind-generated noise at the microphone. Ambient noise level measurements
may be performed when wind velocities at the proposed project site
are sufficient to allow wind turbine operation, provided that the
wind velocity does not exceed 30 mph at the ambient noise measurement
location.
(3)
Any noise level falling between two whole decibels
shall be the lower of the two.
C.
Emergency shutdown/safety operations.
(1)
The applicant shall file emergency contact information,
including, but not limited to, a telephone number and unique identification
number, for each wind energy conversion unit with the Town Clerk.
At least one sign shall be posted at the base of each tower warning
of electrical shock or high voltage. A sign shall be posted on the
entry area of the fence around each tower or group of towers and any
building (or on the tower or building if there is no fence) containing
emergency contact information, including a local or toll-free telephone
number with twenty-four hour, seven-day-a-week coverage. The Town
Board may require additional signs based on safety needs.
(2)
Each wind energy conversion unit shall have
an automatic manufacturer certified or engineer certified braking,
governing, or feathering system to prevent uncontrolled rotation,
overspeeding, and excessive pressure on the tower structure, rotor
blades, and turbine components or nacelle.
D.
Lighting.
(1)
No wind energy conversion unit shall be artificially
lighted unless such lighting is required by a local, state or federal
statue, rule or regulation. The use of nighttime and overcast daytime
condition stroboscopic lighting shall be the minimum required by law
to satisfy the lighting requirements as issued by the Federal Aviation
Administration.
(2)
Light shields, if commercially available, or
other devices to mitigate or control light pollution/spilling of light
shall be used to minimize the amount of light visible at ground level.
The applicant shall submit a study of the potential impact of the
proposed aviation, security and operational lighting, as well as any
required alterations as determined and required for approval hereunder,
on the area surrounding the subject project.
(3)
Prior notification of any changes in the lighting
plan for the project must be communicated to the Town Planning Board
prior to installation of such new lighting scheme, and such alterations
shall only be approved for installation for good cause shown or in
order to bring such project into compliance with any and all statutory
and regulatory requirements.
(4)
If the minimum lighting requirement, as determined
by applicable federal, state or local rules, regulations or statutes,
change during the course of operation of the wind energy conversion
system, the applicant shall alter the lighting plan and install such
lighting in the wind energy conversion system that is at a level equal
to such revised minimum requirements.
E.
Utility service.
(1)
All power transmission lines servicing the project
or any portion thereof shall be underground to a minimum depth of
48 inches or to such depth as required by applicable state and federal
regulations and codes, whichever is greater. If this standard is deemed
to be technically infeasible, rationale and alternative solutions
and designs shall be submitted with the completed application for
review and approval by the Town Board. Such approval shall be granted
if such alternative is deemed acceptable by the Town Board based upon
substantial evidence in the record ensuring such alternative provides
the level of protection and safety afforded by the standard set forth
hereinabove.
(2)
In the unlikely event of a stray voltage occurrence,
the applicant shall be notified, and corrective action shall be taken
immediately by the applicant fully remedying such occurrence.
F.
Blade sweep and tip height. The minimum height of
the lowest part of the blade sweep area shall be 30 feet above the
highest existing major structure or tree within a one-hundred-fifty-foot
radius of the base of the wind energy conversion unit. The total tip
height for each wind energy conversion unit cannot exceed 500 feet
as measured from the base of the unit to the tip of the unit's longest
blade.
G.
Access roads and road mitigation.
(1)
In an effort to minimize curb cuts, existing
roadways shall be used for access to the site whenever possible.
(2)
If existing roadways are not practicable to
be utilized for such access, any necessary new roadway shall be constructed
in a way so that they are level to the surrounding environment. Unless
the landowner upon which such new access road is located signs a waiver
requesting such property not be gated, new access roads constructed
from existing roadways shall be gated and locked near the vicinity
of the intersection of the access road and the existing roadway with
breakaway gates allowing emergency access to the roadway.
(3)
Construction of WECS poses potential risks because
of the large size construction vehicles and their impact on traffic
safety and their physical impact on local roads. Construction and
delivery vehicles for WECS and associated facilities shall use traffic
routes established as part of the application review process. Factors
in establishing such corridors shall include: 1) minimizing traffic
impacts from construction and delivery vehicles; 2) minimizing WECS-related
traffic during times of school bus activity; 3) minimizing wear and
tear on local roads; and 4) minimizing impacts on local business operations.
Special use permit conditions may require documentation of road conditions
prior to and following construction from the Town Highway Superintendent,
remediation during construction, limit WECS-related traffic to specified
routes, and include a plan for disseminating traffic route information
to the public and all applicable state, county and municipal highway
authorities and superintendents whose roads are included in the WECS
traffic routes plan. Notification to all applicable highway authorities
and superintendents will include the number and type of vehicles and
their size, their maximum gross weight, the number of round trips
per day and the dates and time periods of expected use of designated
traffic routes. The applicant shall obtain any necessary road use
agreements with agencies and municipalities over whose roads and rights-of-way
will be used in the construction or reconstruction of any WECS, and
provide documentation of same to the Town.
(4)
The applicant, or its successor, is responsible
for remediation of damaged roads upon completion of the installation
or maintenance of a WECS. A public improvement bond shall be posted
prior to the issuance of any building permit in an amount determined
by the Town Board, sufficient to compensate the Town for any damage
to local roads.
(5)
If the applicant or successor uses any seasonal
use highway in the off season, it shall be solely responsible for
the maintenance of said highway, including, but not limited to, snowplowing.
No acts of maintenance on a seasonal use highway by an applicant or
successor shall be considered as Town maintenance of that highway
for purposes of determining the seasonal use status of the highway.
H.
Accessory structures/facilities. Transmission facilities
and/or buildings shall be located along roadways, below ridgelines
or behind vegetation to screen such facilities and/or buildings from
visibility. If such a facility or building is to be located in or
along the side of an open field, the facility or building shall be
landscaped in such a way as to blend such facility or building in
with the surrounding environment.
I.
Security. To secure each and every wind energy conversion
unit so constructed within the Town, each such unit shall:
(1)
Not have any climbing pegs, tower ladders or
other climbing device of any kind attached to the wind energy conversion
unit closer than 15 feet from the ground.
(2)
Have a locked anticlimbing device installed
on the unit.
(3)
If the property owner submits a written request
that fencing be required, a minimum six-foot high fence with a locking
portal shall be required to enclose each tower or group of towers.
The color and type of fencing for each WECS installation shall be
determined on the basis of individual applications as safety needs
dictate.
(4)
WECS shall be designed to prevent unauthorized
external access to electrical and mechanical components, and shall
have access doors that are kept securely locked.
(5)
Accurate maps of the underground facilities
shall be filed with the Town and with "Dig Safely New York" (1-800-962-7962)
or its successor.
J.
Shadow flicker. The wind energy conversion system
shall be designed such that shadow flicker from an individual wind
energy conversion unit will not fall on any specific area of a roadway
or a portion of a residential structure in excess of 25 hours per
year. If an individual residence is being impacted by multiple wind
energy conversion units, the cumulative affect of said impact shall
not exceed 25 hours per year. If shadow flicker exceeds these conditions,
the source wind energy conversion unit shall be shut down until the
offending condition is remedied.
K.
Environmental contamination by oil or other chemicals.
The applicant of a wind energy conversion system, after such application
has been approved and before a special use permit is issued, shall
submit the maximum amount letter of credit or other mechanism necessary
to ensure the cleanup of any contamination according to DEC requirements.
The Town Board and the Attorney for the Town shall judge the letter
of credit or other surety as adequate and satisfactory before such
a special use permit is granted.
L.
Below-grade foundations. The foundation top of each
wind energy conversion unit shall be buried to a depth of four feet
below ground, or to the specifications of the New York State Department
of Agriculture and Markets guidelines, whichever is greater, to enable
use of the land for farming/agriculture during the life of the project.
M.
Construction hours. No construction or reconstruction
of any WECS shall begin before 6:00 a.m. nor end after 8:00 p.m. Except
in cases of emergencies, all maintenance of WECS shall take place
within those same time frames.
N.
Removal of solid waste. The applicant/operator of
a WECS shall remove and properly dispose of any solid waste or other
unused construction materials in accordance with applicable laws and
regulations.
O.
Post installation.
(1)
On an annual basis a post-installation field
report identifying the wind energy conversion system's generation
of electricity and impacts upon the environment, including, but not
limited to, any adverse drainage patterns then existing, sites of
erosion in vicinity of the system, and other potential adverse environmental
conditions, shall be submitted by the applicant to the Town Board.
The report shall also include any and all work-related calls logged
by the applicant, and any other reasonable items that may be requested
by the Town Board. This report shall be filed with the Town Clerk
annually in the month of June for review at the July Town Board meeting.
(2)
If it is determined that any wind energy conversion
system or portion thereof is operating outside the parameters of the
zoning requirements and conditions of approval, the applicant shall
be notified, and any and all necessary remedies implemented. If the
problem cannot be remedied within an appropriate amount of time, based
on its nature and severity, the Code Enforcement Officer may require
the wind energy conversion system or portion thereof be shut down
until such repairs can be affected. If the applicant and the Code
Enforcement Officer are unable to agree on an appropriate time or
method for remedying such problem, either party shall ask the Town
Board to determine such a reasonable time or method of remedy, which
determination shall be final unless successfully appealed to the Orleans
County Supreme Court by way of a Civil Practice Law and Rules § 78
proceeding, which said petition must be filed with said Court within
30 days of the issuance of the determination by the Town Board being
so appealed.
(3)
Safety issues deemed to be of an imminent significant
threat to the health, safety and/or welfare of any person affected
by the wind energy conversion system or any portion thereof, as determined
by the Code Enforcement Officer, shall require the immediate shut
down of the wind energy conversion system or portion thereof until
corrective action is taken and the imminent significant threat fully
mitigated.
(4)
In the event a wind energy conversion system
or portion thereof requires attention, whichever entity is notified
first, the applicant or the Code Enforcement Officer, such entity
shall immediately contact the other party to report the matter being
attended to.
A.
In the event the noise levels resulting from a WECS
exceed the criteria established in this article, or a setback requirement
is not met, a waiver is hereby granted from such requirement where
the property adjacent to that hosting the wind energy conversion unit
is also part of the WECS site due to hosting a wind energy conversion
unit or other ancillary components.
B.
Written consent from the affected property owners
shall be obtained stating that they are aware of the WECS and the
noise and/or setback limitations imposed by this article, and that
they wish to be a part of the site as defined herein, and that consent
is granted to:
C.
In order to advise all subsequent owners of the burdened
property, the consent, in the form required for an easement, shall
be recorded in the County Clerk's office describing the benefitted
and burdened properties. Such easements shall be permanent and may
not be revoked without the consent of the Town Board, which consent
shall be granted upon either the completion of the decommissioning
of the benefitted WECS in accordance with this article, or the acquisition
of the burdened parcel by the owner of the benefitted parcel or the
WECS.
D.
In any case where written consent is not obtained,
and, therefore, a property is not part of the site, a variance from
the Zoning Board of Appeals shall be required.
A.
Prior to application approval, the applicant shall
be referred to the Town Board for determination of any financial surety
required in accordance with § 350-101 of this article.
B.
The applicant, or successors, shall continuously maintain
a fund or bond payable to the Town for the removal of nonfunctional
towers and appurtenant facilities in an amount to be determined by
the Town for the period of the life of the wind energy conversion
system. This fund may consist of a letter of credit from a State of
New York licensed financial institution. All costs of the financial
security shall be borne by the applicant and/or its successor.
C.
The applicant shall notify the Code Enforcement Officer
within 30 days of the discontinuance of use of the wind energy conversion
system or any portion thereof. Should the applicant fail to notify
the Town Code Enforcement Officer as required, the applicant shall
be subject to all penalties provided under this article and the following
additional penalties: $200 per day from the time the applicant should
have notified the Town Code Enforcement Officer and the date the wind
energy conversion system or portion thereof is removed or made operational
as set forth under Subsection E of this section.
D.
Should the wind energy conversion system or any portion
thereof not operate for a total period of 60 days within any ninety-day
period, the Town shall notify the applicant that such offending wind
energy conversion system or portion thereof shall be removed or made
operational as provided in Subsection E of this section.
E.
The applicant shall remove any discontinued, decommissioned,
obsolete or unused wind energy conversion system or portions thereof
and restore the site to preconstruction conditions, or make the wind
energy conversion system or portion thereof fully operational, within
90 days of delivery or receipt of the notification set forth in Subsection
D of this section, unless such time limit is extended by the Town
Board for good cause shown, but the total period shall not exceed
180 days. Nonfunction or lack of operation may be proven, among other
means, by reports to the Public Service Commission, NYSERDA, or by
lack of income generation. The applicant or its successor shall make
available (subject to a nondisclosure agreement, if requested) to
the Town Board all reports to and from the purchaser of energy from
individual wind energy conversion systems, if requested, necessary
to prove the system is functioning, which reports may be redacted
as necessary to protect proprietary information.
F.
Prior to the expiration of this time, the applicant
may apply to the Town Board for a further extension in time for which
such wind energy conversion system or portion thereof needs to be
removed or made operational, up to an additional time of 180 days.
Such extension shall only be granted if the applicant demonstrates
good cause that such extension is necessary as a result of uncontrollable
events such as weather delays, repair delays or other similar conditions
requiring the need for such extension.
G.
Failure to notify and/or remove any discontinued,
decommissioned, obsolete or unused wind energy conversion system or
portion thereof in accordance with this article shall be in violation
of this article and subject the applicant to the penalties set forth
herein. In addition, the cost of removing the offending wind energy
conversion system or portion thereof shall be drawn against the financial
surety posted by the applicant for demolition or decommissioning of
the project as set forth in this section.
H.
Any costs incurred by the Town that exceeds the amount
of such financial surety or not be covered by said surety shall be
the complete and sole responsibility of the applicant. If the applicant
is insolvent and such costs cannot be practicably collected from said
applicant, then such costs shall become a lien upon the property upon
which the costs were incurred and said lien shall thereafter be assessed
on the next succeeding year's tax bill for such parcel and collected
in accordance with normal tax foreclosure proceedings if such tax
bill remains unpaid thereafter.
I.
Upon completion of all such removal activities by
the Town, any remaining portion of the posted surety shall be returned
to the applicant forthwith.
A.
Landscaping. Upon completion of installation, the
site shall be returned as close as possible to its natural state,
and in conformity with applicable state and federal regulations and
guidelines, including, but not limited to, restoring the subsoil and
topsoil to preconstruction condition and reforestation of at least
40% for any woodlands that have been cleared.
B.
Building and grounds maintenance. Any damaged or unused
parts shall be removed from the premises within 30 days or stored
in a locked on-site storage building. All maintenance equipment, spare
parts, oil or chemicals (cleaning, pesticides, fuels) shall also be
stored in said on-site locked storage building.
C.
Testing and inspection fund. A special use permit
shall contain a requirement that the applicant, or successor, fund
periodic structural inspections and noise testing by a qualified,
independent, third-party consultant, which may be required as often
as every two years, or more frequently upon request of the Town Board
in response to complaints by neighbors. The scope of the inspections
and 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 or successor shall have 90 days, after written notice
from the Town Board, to cure any deficiency. Any extension of the
ninety-day period may be considered by the Town Board, but the total
period may not exceed 180 days.
D.
Operation. A WECS shall be maintained in operational
condition at all times, subject to reasonable maintenance and repair
outages. Operational condition includes meeting all noise requirements
and other special use permit conditions. Should a WECS become inoperable,
or should any part of the WECS be damaged, or should a WECS violate
a special use permit condition, the owner or operator shall remedy
the situation within 90 days after written notice from the Town Board.
The applicant, or successor, shall have 90 days, after written notice
from the Town Board, to cure any deficiency. Any extension of the
ninety-day period may be considered by the Town Board, but the total
period may not exceed 180 days.
E.
Revocation of special use permit. Notwithstanding
any other abatement provision under this article, if the WECS is not
repaired or made operational, or brought into special use permit compliance
after notice and within the time limitations set forth above, the
Town may, after a public meeting at which the operator or owner shall
be given an opportunity to be heard and present evidence, including
a plan to come into compliance : 1) order either remedial action within
a particular time frame; or 2) order revocation of the special use
permit for the WECS and require the removal of the WECS within 90
days. If the WECS is not removed, the Town Board shall have the right
to use the security posted as part of the decommission plan to remove
the WECS.
A.
Routine inspection report. An inspection report prepared
by an independent professional engineer licensed in the State of New
York shall be required at the completion of the installation of the
wind energy conversion system. Said inspection report shall certify
the wind energy system and any portion thereof complies with all manufacturing
specifications and any and all rules, regulations and statues pertaining
thereto. Said inspection report shall be filed with the Code Enforcement
Officer and the Town Clerk.
B.
Insurance liability. Prior to the issuance of a building
permit regarding an approved wind energy conversion system, the applicant
shall file with the Town proof, in the form of a duplicate insurance
policy or a certificate issued by an insurance company, of liability
insurance in a reasonable level as determined by the Town Board in
consultation with the Town's insurer, guided by industry standards,
to cover damage or injury which might result from the wind energy
conversion system or any portion thereof. Such liability insurance
shall also name the Town and the current property owner of record
as an additional insured, unless said property owner waives such coverage
in writing.
C.
National and state standards. In addition to any requirements
of this article, the applicant shall show that all applicable manufacturer's,
New York State and U.S. standards and guidelines for the construction,
operation and maintenance of the proposed wind energy conversion units
have been met or are in compliance. Wind energy conversion units shall
be built, operated and maintained to applicable industry standards,
including, but not limited to, the Institute of Electrical and Electronic
Engineers (IEEE), the International Electrotechnical Commission (IEC)
and the American National Standards Institute (ANSI).
D.
Continuing obligations. All requirements detailed
in this article shall remain in full force and effect for the duration
of the granted special use permit.
A.
Wind site assessment. The Town Board acknowledges
that prior to construction of a WECS, a wind site assessment is conducted
to determine the wind speeds and the feasibility of using particular
sites. Installation of wind measurement towers, also known as anemometer
("met") towers, shall be permitted as special use in the Town.
B.
Applications for wind measurement towers. An application
for a wind measurement tower shall include:
(1)
The name, address and telephone number of the
applicant.
(2)
The 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:
(3)
The address of each proposed tower site, including
Tax Map number.
(4)
Site plan.
(5)
Decommissioning plan based on the same criteria
for WECS, including a security bond or cash for removal.
C.
Standards for wind measurement towers.
(1)
The distance between a wind measurement tower
and the property line shall be at least the total height of the tower.
Sites can include more than one piece of property, and the requirement
shall apply to the combined properties. Exceptions for neighboring
property are also allowed with the consent of those property owners.
(2)
Special use permits for wind measurement towers
may be issued by the Town Board for a maximum period of up to three
years. Special use permits shall be renewed annually if the facility
is in compliance with the conditions of the special use permit.
A.
Any person who violates or knowingly permits the violation
of this article shall be punishable as provided in § 350-8
of this chapter. Further, every day such violation is determined to
have existed shall be deemed to constitute a separate and additional
offense for which the person may be subject to the penalties set forth
herein for each and every day such violation so existed.[1]
B.
In the 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 the
unlawful erection, structural alteration, reconstruction, moving,
and/or use and to restrain, correct, or abate such violation to prevent
the illegal act.
A.
There shall be nonrefundable application fees for
each of the following categories, to be fixed by resolution of the
Town Board from time to time:
B.
Building permits. The Town believes the review of
building and electrical permits for WECS requires specific expertise
for those facilities. Accordingly, the permit fees for such facilities
shall be increased by administrative costs which shall be fixed by
resolution of the Town Board from time to time but no less than $100
per permit request, plus the amount charged to the Town by the outside
consultants hired by the Town to review the plans and inspect the
work. In the alternative, the Town and the applicant may enter into
an agreement for an inspection and/or certification procedure for
these unique facilities. In such case, the Town and the applicant
will agree to a fee arrangement and escrow agreement to pay for the
costs of the review of the plans or certifications, or to conduct
inspections as agreed by the parties.
C.
Nothing in this section shall be read as limiting
the ability of the Town to enter into host community agreements with
any applicant. The applicant, or its successors, shall be required
to pay the Town a host community fee annually to compensate the Town
for expenses or impacts on the community. The amount of the host community
fee shall be determined by applying a rate per MW (megawatt), or part
thereof, of rated maximum generation capacity per year, prorated for
any portion of a year of energy production. The host community fee
may be in addition to any payment in lieu of taxes which may be authorized
to be collected by the Town pursuant to § 487 of the Real
Property Tax Law of the State of New York. The amount of the host
community fee will be determined by the Town Board from time to time
but not more frequently than annually. All such fees shall be negotiated
and determined prior to the approval and issuance of a special use
permit for any WECS.
D.
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.
The Town hereby exercises its right to opt out
of the tax exemption provisions of the Real Property Tax Law § 487,
pursuant to the authority granted by Subdivision 8 of that law.
