§ 108-8Creation of Wind Overlay Zones.
§ 108-9Applications for special use
§ 108-10Application review process.
§ 108-11Standards for WECS.
§ 108-12Required safety measures.
§ 108-13Traffic routes.
§ 108-14Noise standards and setbacks
for wind energy conversion systems.
§ 108-15Issuance of special use permits;
§ 108-17Limitations on approval; easements
on Town property.
§ 108-18Permit revocation.
Wind Overlay Zones shall be created by the Town Board to delineate those areas in the Town of Potsdam that are appropriate for the development of wind energy conversion systems (WECS) and related infrastructure, electrical lines and substations, access roads and accessory structures.
The Town Board shall refer development of Wind Overlay Zones to the Town Planning Board. The Town Planning Board shall hold public meetings, after public notice, at which the Planning Board shall consider the landscape and topography of the Town, current land uses and future development patterns, natural resources, unique or sensitive environments, the local existence of wildlife and plant species, viewsheds, zoning districts, residents' opinions, and other pertinent information.
After considering these items and any other information presented at the public hearing, the Town Planning Board shall determine those areas which are not considered appropriate for development of wind energy conversion systems (WECS) and related infrastructure, electrical lines and substations, access roads and accessory structures. Any other areas of the Town of Potsdam may be designated by the Town Planning Board to be potential Wind Overlay Zones.
The Town Planning Board shall report its findings and make recommendations to the Town Board.
The Town Board shall hold a public hearing after public notice as required, and shall consider the recommendations of the Town Planning Board and all other comments, reviews, and statements pertaining thereto. After considering these items and any other information presented at the public hearing, the Town Board shall determine which areas of the Town of Potsdam shall be determined to be Wind Overlay Zones.
If approved, the Town Board will direct the Town Clerk to modify the Official Map to reflect the creation of the Wind Overlay Zones.
Once a Wind Overlay Zone has been created, new WECSs or accessory structures or facilities may be added in that zone by grant of a special use permit pursuant to the requirements of this article.
Construction, reconstruction, modification or operation of small wind energy conversion systems (small WECS) or wind measurement towers, as defined in this chapter, shall not be limited to Wind Overlay Zones, as long as these other projects comply with all other regulations contained herein.
An application for a special use permit for an individual WECS shall include the following:
Name, address and telephone number of the applicant. If the applicant is represented by an agent, the application shall include the name, address and telephone number of the agent as well as an original signature of the applicant authorizing the representation.
Name, and address 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:
Address or other property identification of each proposed tower location, including Tax Map section, block, and lot number, latitude and longitude coordinates.
A description of the project, including the number and maximum rated power output capacity of each WECS.
For each WECS proposed, a plot plan prepared by a licensed surveyor or engineer drawn in sufficient detail to clearly describe the following:
Property lines and physical dimensions of the site.
Location, approximate dimensions and types of existing structures and uses on site, public roads, and adjoining properties within 500 feet of the site.
Location and ground elevation of each proposed WECS.
Location of all aboveground utility lines on the site, and all related transformers, power lines, interconnection point with transmission lines, and other ancillary facilities or structures.
Location and size of structures above 35 feet within a five-hundred-foot radius of the proposed WECS. For purposes of this requirement, electrical transmission and distribution lines, antennas and slender or open lattice towers are not considered structures.
The zoning designation of the subject and adjacent properties as set forth in Town Zoning Law.
Boundaries of the Wind Overlay Zone, to demonstrate that each proposed WECS is located within said overlay zones.
To demonstrate compliance with the setback requirements of this article, circles drawn around each proposed tower location equal to: (i) perimeter equal to 1 1/2 times the tower height; (ii) five-hundred-foot perimeter. (iii) one-thousand-foot perimeter. Information shall be provided concerning ownership and land uses within the above-mentioned perimeters.
Location of the nearest residential structure on the site and located off-site, and the distance from the proposed WECS.
All proposed facilities, including access roads, electrical lines, substations, storage or maintenance units, and fencing.
Elevation drawing of the WECS showing total height, turbine dimensions, tower and turbine colors, ladders, distance between ground and lowest point of any blade, location of climbing pegs, and access doors. One drawing may be submitted for each WECS of the same type and total height.
Landscaping plan depicting vegetation, describing the area to be cleared of vegetation and areas where vegetation shall be added, identified by species and size of specimens at installation, and their locations.
Lighting plan showing any FAA-required lighting and other proposed lighting. The application should include a copy of the determination by the Federal Aviation Administration to establish required markings and/or lights for the structure, but if such determination is not available at the time of the application, no building permit for any lighted facility may be issued until such determination is submitted.
Decommissioning plan. The applicant shall submit a decommissioning plan, which shall include:
The anticipated life of the WECS;
The estimated decommissioning costs in current dollars;
How said estimate was determined;
The method of ensuring that funds will be available for decommissioning and restoration;
The method, such as by annual re-estimate by a licensed engineer, that the decommissioning cost will be kept current; and
The manner in which the WECS will be decommissioned and the site restored, which shall include removal of all roads, structures, and debris to a depth of three feet, restoration of the soil, and restoration of vegetation (consistent and compatible with surrounding vegetation), less any fencing or residual minor improvements requested by the landowner.
Complaint resolution. The application will include a complaint resolution process to address complaints from nearby residents. The process shall use an independent mediator or arbitrator and include a time limit for acting on a complaint. The applicant shall make every reasonable effort to resolve any complaint.
An application shall include information relating to the construction/installation of the wind energy conversion facility as follows:
Completed Part 1 of the full EAF.
Applications for wind energy permits for wind measurement towers subject to this chapter may be jointly submitted with the WECS.
For each proposed WECS, include make, model, picture and manufacturer's specifications, including noise decibels data. Include manufacturer's material safety data sheet documentation for the type and quantity of all materials used in the operation of all equipment, including, but not limited to, all lubricants and coolants.
If the applicant agrees in writing in the application that the proposed WECS may have a significant adverse impact on the environment, the Town Board may issue a positive declaration of environmental significance.
If a positive declaration of environmental significance is determined by the SEQRA lead agency, the following information shall be included in the draft environmental impact statement (DEIS) prepared for a wind energy facility. Otherwise, the following studies shall be submitted with the application:
Shadow flicker: The applicant shall conduct a study on potential shadow flicker. The study shall identify locations where shadow flicker may be caused by the WECSs and the expected durations of the flicker at these locations. The study shall identify areas where shadow flicker may interfere with residences and describe measures that shall be taken to eliminate or mitigate the problems.
Visual impact: Applications shall include a visual impact study of the proposed WECS as installed, which may include a computerized photographic simulation, demonstrating any visual impacts from strategic vantage points. Color photographs of the proposed site from at least two locations accurately depicting the existing conditions shall be included. The visual analysis shall also indicate the color treatment of the system's components and any visual screening incorporated into the project that is intended to lessen the system's visual prominence.
Fire protection: a fire protection and emergency response plan, created in consultation with the fire department(s) having jurisdiction over the proposed Zone.
Noise analysis: a noise analysis by a competent acoustical consultant documenting the noise levels associated with the proposed WECS. The study shall document 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 include low-frequency noise.
Property value analysis: property value analysis shall be prepared by a licensed appraiser in accordance with industry standards, regarding the potential impact of values of properties neighboring WECS sites.
Electromagnetic interference: an assessment of potential electromagnetic interference with microwave, radio, television, personal communication systems and other wireless communication.
Transportation impacts: An analysis of impacts on local transportation shall be prepared, regarding impacts anticipated during construction, reconstruction, modification, or operation of WECS. Transportation impacts to be considered shall include, at a minimum, potential damage to local road surfaces, road beds and associated structures; potential traffic tie-ups by haulers of WECS materials; impacts on school bus routes; impacts of visitors to the WECS facilities.
Groundwater impacts: An analysis of impacts on local groundwater resources shall be prepared, regarding impacts anticipated during construction, reconstruction, modification or operation of WECS.
Cultural resources: An analysis of impacts on cultural resources shall be prepared, regarding impacts anticipated during construction, reconstruction, modification or operation of WECS.
Wildlife impacts: An analysis of impacts on local wildlife shall be prepared, regarding impacts anticipated during construction, reconstruction, modification or operation of WECS. Wildlife impacts to be considered shall include, at a minimum, anticipated impacts on flying creatures (birds, bats, insects), as well as wild creatures existing at ground level.
The applicant shall, prior to the receipt of a building permit, provide proof that it has executed an interconnection agreement with the New York independent system operator and the applicable transmission owner.
A statement, signed under penalties of perjury that the information contained in the application is true and accurate.
Applicants may request a preapplication meeting with the Town Planning Board, or with any consultants retained by the Planning Board for application review. Meetings with the Planning Board shall be conducted in accordance with the Open Meetings Law.
Twelve copies of the application shall be submitted to the Town Clerk. Payment of all application fees shall be made at the time of application submission. If any variances are requested, variance application fees shall be paid at the time of the receipt of the application.
Town staff or Town-designated consultants shall, within 30 days of receipt, or such longer time as agreed to by the applicant, determine if all information required under this article is included in the application. Unless the Planning Board waives any application requirement, no application shall be considered until deemed complete.
If the application is deemed incomplete, the Planning 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 shall be required upon submittal of the additional information unless the number of WECSs proposed is increased.
Upon submission of a complete application, including the grant of any application waiver by the Planning Board, the Town Clerk shall transmit the application to the Planning Board.
The Planning 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 each proposed WECS and published in the Town's official newspaper, no fewer than 10 nor more than 20 days before any hearing, but, where any hearing is adjourned by the Planning Board to hear additional comments, no further publication or mailing shall be required. The applicant shall prepare and mail the notice of public hearing prepared by the Planning Board and shall submit an affidavit of service. The assessment roll of the Town shall be used to determine mailing addresses.
The public hearing may be combined with public hearings on any environmental impact statement or requested variances.
SEQRA review. Applications for WECS are deemed Type I projects under SEQRA. The Planning Board may conduct its SEQRA review in conjunction with other agencies, in which case the records of review by said communities shall be part of the record of the Planning Board's proceedings. The Planning Board may require an escrow agreement for the engineering and legal review of the applications and any environmental impact statements before commencing its review.
Upon receipt of the report of the recommendations of the County Planning Board (where applicable), the holding of the public hearing, and the completion of the SEQRA process, the Planning Board may approve, approve with conditions, or deny the applications, in accordance with the standards in this article.
The following standards shall apply to all WECS, unless specifically waived by the Town Board as part of a permit:
All power transmission lines from the tower to any building or other structure shall be located underground to the maximum extent practicable.
No television, radio, or other communication antennas may be affixed or otherwise made part of any WECS, except pursuant to the Town Zoning Law. Applications may be jointly submitted for WECS and telecommunications facilities.
No advertising signs are allowed on any part of the wind energy facility, including fencing and support structures.
Lighting of tower. No tower shall be lit except to comply with FAA requirements. Minimum security lighting for ground level facilities shall be allowed as approved on the site plan.
All applicants shall use measures to reduce the visual impact of WECs to the extent possible. All structures in a project shall be finished in a single, nonreflective matte finished color or a camouflage scheme. Individual WECSs within a Wind Overlay Zone shall be constructed using wind turbines whose appearance, with respect to one another, is similar within and throughout the zone, to provide reasonable uniformity in overall size, geometry, and rotational speeds. No lettering, company insignia, advertising, or graphics shall be on any part of the tower, hub, or blades.
The use of guy wires is disfavored. A WECS using guy wires for tower support shall incorporate appropriate measures to protect the guy wires from damage which could cause tower failure.
No WECS shall be installed in any location where its proximity to existing fixed broadcast, retransmission, or reception antennas for radio, television, or wireless phone or other personal communication systems could produce electromagnetic interference with signal transmission or reception. No WECS 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 WECS 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 the impacted parties. Failure to remedy electromagnetic interference is grounds for revocation of the wind energy permit for the specific WECS or WECSs causing the interference.
All solid waste and hazardous waste and construction debris shall be removed from the site and managed in a manner consistent with all appropriate rules and regulations.
WECSs shall be designed to minimize the impacts of land clearing and the loss of open space areas. Land protected by conservation easements shall be avoided when feasible. The use of previously developed areas will be given priority wherever possible. All topsoil disturbed during construction, reconstruction or modification of WECS shall be stockpiled and returned to the site upon completion of the activity which disturbed the soil.
WECSs shall be located in a manner that minimizes significant negative impacts on animal species in the vicinity, particularly bird and bat species, including those that may be listed by the U.S. Fish and Wildlife Service as threatened or endangered.
Wind energy conversion facilities shall be located in a manner consistent with all applicable state and federal wetlands laws and regulations.
Stormwater run-off and erosion control shall be managed in a manner consistent with all applicable state and federal laws and regulations.
The New York State Department of Agriculture and Markets guidelines for agricultural mitigation for wind power projects shall be adhered to, both inside and outside of agricultural districts.
The maximum total height of any WECS shall be 500 feet from the ground, including the blades.
If it is determined that a WECS is causing stray voltage issues, the operator shall take the necessary corrective action to eliminate these problems, including relocation or removal of the facilities, or resolution of the issue with the impacted parties. Failure to remedy stray voltage issues is grounds for revocation of the wind energy permit for the specific WECS or WECSs causing the problems.
Each WECS shall be equipped with both manual and automatic controls to limit the rotational speed of the rotor blade so it does not exceed the design limits of the rotor.
If the property owner submits a written request that fencing be required, a 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.
Appropriate warning signs shall be posted. At least one sign shall be posted at the base of the tower warning of electrical shock or high voltage. A sign shall be posted on the entry area of 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 telephone number with twenty-four-hour, seven-day-a-week coverage. The Town Planning Board may require additional signs based on safety needs.
No climbing pegs or tower ladders shall be located closer than 12 feet to the ground level at the base of the structure for freestanding single-pole or guyed towers.
The minimum distance between the ground and any part of the rotor or blade system shall be 35 feet.
WECSs shall be designed to prevent unauthorized external access to electrical and mechanical components and shall have access doors that are kept securely locked.
Copies of all reports concerning operating and safety inspections for each WECS shall be filed with the Town Clerk.
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/or 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. Permit conditions may limit WECS-related traffic to specified routes, and include a plan for disseminating traffic route information to the public.
The applicant 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.
If the applicant 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 snow plowing. No act of maintenance on a seasonal-use highway by an applicant shall be considered as Town maintenance of that highway for purposes of determining the seasonal-use status of the highway.
The statistical sound pressure level (L10) generated by a WECS shall not exceed 50 dBA when measured at the nearest inhabited off-site dwelling, school, hospital, church or public building existing at the time of application. If the ambient sound pressure level exceeds 50 dBA, the standard shall be ambient dBA plus five dBA. Independent certification shall be provided before and after construction demonstrating compliance with this requirement.
In the event audible noise due to wind energy facility operations contains a steady pure tone, such as a whine, screech, or hum, the standards for audible noise set forth in Subsection A of this section shall be reduced by five dBA. A pure tone is defined to exist if the 1/3 octave band sound pressure level in the band, including the tone, exceeds the arithmetic average of the sound pressure levels of the two contiguous 1/3 octave bands by five dBA for center frequencies of 500 Hz and above, by eight (8) dBA for center frequencies between 160 Hz and 400 Hz, or by fifteen (15) dBA for center frequencies less than or equal to 125 Hz.
In the event 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 exceeded for more than five minutes per hour. Ambient noise levels shall be measured at the exterior of potentially affected existing residences, schools, hospitals, churches, and public libraries. 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 miles per hour at the ambient noise measurement location.
Any noise level falling between two whole decibels shall be the lower of the two.
Each WECS shall be set back from site boundaries, measured from the center of the WECS:
From the nearest site boundary property line: 500 feet.
From the nearest public road: 500 feet.
From the nearest edge of the Wind Overlay District Zone: 500 feet.
From the nearest off-site residence existing at the time of application: 1,000 feet, measured from the exterior of such residence.
From any non-WECS structure or any aboveground utilities: 1 1/2 times the total height of the WECS.
From state-identified wetlands or bodies of water: 500 feet. This distance may be adjusted to be greater at the discretion of the reviewing body, based on topography, land cover, land uses, and other factors that influence the flight patterns of resident birds, bats, or other creatures.
Upon completion of the review process, the Town Planning Board shall, upon consideration of the standards in this chapter and the record of the SEQRA review, issue a written decision with the reasons for approval, conditions of approval, or disapproval fully stated.
If approved, the Town Planning Board will issue a special use permit for each WECS upon satisfaction of all conditions for said permit, and direct the Building Inspector to issue a building permit, upon compliance with the Uniform Fire Prevention and Building Code and the other conditions of this chapter.
The decision of the Town Planning Board shall be filed within five days in the office of the Town Clerk and a copy mailed to the applicant by first class mail.
If any approved WECS is not substantially commenced within two years of issuance of the permit, the special use permit shall expire.
If any WECS remains nonfunctional or inoperative for a continuous period of one year, the applicant agrees that, without any further action by the Town Planning Board, it shall remove said system at its own expense. Removal of the system shall include at least the entire aboveground structure, including transmission equipment and fencing, from the property. This provision shall not apply if the applicant demonstrates to the Town that it has been making good faith efforts to restore the WECS to an operable condition, but nothing in this provision shall limit the Town Planning Board's ability to order a remedial action plan after public hearing.
Nonfunction or lack of operation may be proven by reports to the Public Service Commission, NYSERDA, or by lack of income generation. The applicant shall make available (subject to a nondisclosure agreement) to the Town Planning Board all reports to and from the purchaser of energy from individual wind energy conversion systems, if requested, necessary to prove the WECS is functioning, which reports may be redacted as necessary to protect proprietary information.
Decommissioning bond or fund. The applicant, or successors, shall continuously maintain a fund or bond payable to the Town for removal of nonfunctional towers and appurtenant facilities in an amount to be determined by the Town for the period of the life of the facility. 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. All decommissioning funding requirements shall be met prior to commencement of construction.
Nothing in this chapter shall be deemed to give any applicant the right to cut down surrounding trees and vegetation on any property to reduce turbulence and increase wind flow to the wind energy facility. Nothing in this chapter shall be deemed a guarantee against any future construction or Town approvals of future construction that may in any way impact the wind flow to any wind energy facility. It shall be the sole responsibility of the facility operator or owner to acquire any necessary wind flow or turbulence easements, or rights to remove vegetation.
Pursuant to the powers granted to the Town to manage its own property, the Town may enter into noise, setback, or wind flow easements on such terms as the Town Planning Board deems appropriate, as long as said agreements are not otherwise prohibited by state or local law.
Testing fund. A special use permit shall contain a requirement that the applicant fund periodic noise testing by a qualified independent third-party acoustical measurement consultant, which may be required as often as every two years, or more frequently upon request of the Town Board in response to complaints by neighbors. The scope of the noise testing shall be to demonstrate compliance with the terms and conditions of the special use permit and this chapter and shall also include an evaluation of any complaints received by the Town. The applicant shall have 90 days after written notice from the Town Board to cure any deficiency. An extension of the ninety-day period may be considered by the Town Board, but the total period may not exceed 180 days.
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 permit conditions. Should a WECS become inoperable, or should any part of the WECS be damaged, or should the WECS violate a permit condition, the owner or operator shall remedy the situation within 90 days after written notice from the Town Board. The applicant shall have 90 days after written notice from the Town Board to cure any deficiency. An extension of the ninety-day period may be considered by the Town Board, but the total period may not exceed 180 days.
Notwithstanding any other abatement provision under this chapter, and consistent with Subsections A and B, if the WECS is not repaired or made operational or brought into permit compliance after said notice, the Town may, after a public meeting at which the operator or owner shall be given 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 wind energy 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.