The purpose of these regulations is to provide for the construction
and operation of wind energy facilities in The Town of Phelps, subject
to reasonable conditions that will protect the public health, safety
and welfare.
As used in this chapter, the following terms shall have the
meanings indicated:
APPLICANT
The person or entity filing an application under these regulations.
FACILITY OWNER
The entity or entities having an equity interest in the wind
energy facility, including their respective successors and assigns.
HUB HEIGHT
The distance measured from the surface of the tower foundation
to the height of the wind turbine hub, to which the blade is attached.
NONPARTICIPATING LANDOWNER
Any landowner except those on whose property all or a portion
of a wind energy facility is located or who has an agreement with
the facility owner or operator.
OCCUPIED BUILDING
A residence, barn, shop, garage, school, hospital, church,
public library (or other building used for public gathering) that
is occupied or in use when the permit application is submitted.
OPERATOR
The entity responsible for the day-to-day operation and maintenance
of the wind energy facility.
PARTICIPATING LANDOWNER
Any landowner on whose property all or a portion of a wind
energy facility is located or who has an agreement with the facility
owner or operator.
SMALL WIND ENERGY SYSTEM
A wind energy conversion system consisting of a wind turbine,
a tower, and associated control or conversion electronics, which has
a rated capacity of not more than 250 kW and which is intended to
primarily reduce on-site consumption of utility power.
TOWER HEIGHT
The height above grade of the fixed portion of the tower,
excluding the wind turbine itself.
TURBINE HEIGHT
The distance measured from the surface of the tower foundation
to the highest point of the turbine rotor plane.
WIND ENERGY FACILITY
An electric-generating facility, whose main purpose is to
supply electricity, consisting of one or more wind turbines and other
accessory structures and buildings, including substations, meteorological
towers, electrical infrastructure, transmission lines and other appurtenant
structures and facilities.
WIND TURBINE
A wind energy conversion system that converts wind energy
into electricity through the use of a wind turbine generator, and
includes the nacelle (structure which houses all of the generating
components, gearbox, drive train, etc.), rotor, tower, and pad transformer,
if any.
Wind energy facilities shall be permitted in all zoning districts
except R1 and R2 Districts.
No special use permit shall be granted unless it is determined
by the Zoning Board of Appeals that the proposed use meets all of
the following criteria:
A. The location, size and use of structure(s), nature and intensity
of operations involved, size of site in relation to the proposed structure(s),
and the location of the site with respect to roads giving access to
it are such that the proposed use will be in harmony with orderly
development of the district.
B. The location, nature and height of buildings, walls and fences will
not discourage the appropriate development and use of adjacent land
and buildings.
C. The proposed use shall not conflict with the Town Comprehensive Plan.
D. Operations of any special use shall not be more objectionable to
nearby properties than would be the operations of any unconditionally
permitted use.
E. A special use permit shall not be issued for a use on property where
there is an existing violation of this chapter.
F. The use shall not have an adverse effect on the agriculture of the
area.
G. The proposed use shall be in compliance with the requirements of
this chapter.
The Planning Board shall review the site plan and supporting
data before approval, rejection or approval with stated conditions
as given, and take into consideration the following:
A. Harmonious relationship between proposed uses and existing adjacent
uses.
B. Maximum safety of vehicular circulation between the site and road
network.
C. Adequacy of interior circulation, parking and loading facilities,
with particular attention to vehicular and pedestrian safety.
D. Adequacy of landscaping and setbacks in regard to achieving maximum
compatibility and protection to adjacent residential districts and
properties.
Property owners may not waive or vary setback requirements and
must adhere to setbacks as defined in this chapter, unless such variance
or waiver is approved by the Town Zoning Board of Appeals. Any resolution
to vary or waive any of the above setback requirements shall run with
the land and be recorded as part of the chain of title in the deed
of the subject property and shall be filed with the County Clerk.
Prior to issuance of a building permit, the applicant shall
provide the Town of Phelps with proof in the form of a duplicate insurance
policy or a certificate issued by an insurance company of liability
insurance of a level to be determined by the Town Board in consultation
with the Town's insurer to cover damage or injury which might
result from the failure of a tower or towers or any other part(s)
of the generation and transmission facility.
Permitted use. Small wind energy systems shall be a permitted
use in all zoning classifications subject to certain requirements
as set forth below:
A. Tower height. For property sizes between 1/2 acre and one acre, the
tower height shall be limited to 80 feet. For property sizes of one
acre or more, the tower height shall be limited to 200 feet, except
where such height does not conform to regulations imposed by the FAA.
B. Setback. No part of the wind system structure, including guy wire
anchors, may extend closer than 1.25 times the turbine height to the
property boundaries of the installation site.
C. Noise. Small wind energy systems shall not exceed 50 dBA, as measured
at the closest nonparticipating landowner's occupied building.
The level, however, may be exceeded during short-term events such
as utility outages and/or severe wind storms.
D. Approved wind turbines. Small wind turbines must have been approved
under the Emerging Technologies Program of the California Energy Commission
or any other small wind certification program recognized by the American
Wind Energy Association.
E. Compliance with Uniform Building Code. Building permit applications
for small wind energy systems shall be accompanied by standard drawings
of the wind turbine structure, including the tower, base, and footings.
An engineering analysis of the tower showing compliance with the Uniform
Building Code and certified by a licensed professional engineer shall
also be submitted. This analysis is frequently supplied by the manufacturer.
Wet stamps shall not be required.
F. Compliance with FAA regulations. Small wind energy systems must comply
with applicable FAA regulations, including any necessary approvals
for installations close to airports.
G. Compliance with National Electric Code. Building permit applications
for small wind energy systems shall be accompanied by a line drawing
of the electrical components in sufficient detail to allow for a determination
that the manner of installation conforms to the National Electrical
Code. This information is frequently supplied by the manufacturer.
H. Utility notification. No small wind energy system shall be installed
until evidence has been given that the utility company has been informed
of the customer's intent to install an interconnected customer-owned
generator. Off-grid systems shall be exempt from this requirement.
Wind power construction projects located in county-adopted,
state-certified agricultural districts shall comply with the following
guidelines. The project sponsor is encouraged to coordinate with the
New York State Department of Agriculture and Markets (Ag and Markets)
to develop an appropriate schedule for milestone inspections to assure
that the goals of these guidelines are being met. For larger projects,
the project sponsor shall hire an environmental monitor to oversee
the construction and restoration in agricultural fields.
A. Siting guidelines.
(1) Minimize impacts to normal farming operations by locating structures
along field edges and in nonagricultural areas where possible.
(2) Locate access roads which cross agricultural fields along ridge tops
where possible to eliminate the need for cut and fill and reduce the
risk of creating drainage problems.
(3) Avoid dividing larger fields into smaller fields, which are more
difficult to farm, by locating access roads along the edge of agricultural
fields and in nonagricultural areas where possible.
(4) All existing drainage and erosion control structures such as diversions,
ditches, and tile lines shall be avoided or appropriate measures taken
to maintain the design and effectiveness of the existing structures.
Any structures disturbed during construction shall be repaired to
as close to original condition as possible, as soon as possible, unless
such structures are to be eliminated based on a new design.
B. Construction guidelines.
(1) The surface of access roads constructed through agricultural fields
shall be level with the adjacent field surface.
(2) Where necessary, culverts and water bars shall be installed to maintain
natural drainage patterns.
(3) All topsoil must be stripped from agricultural areas used for vehicle
and equipment traffic and parking. All vehicle and equipment traffic
and parking shall be limited to the access road and/or designated
work areas such as tower sites and laydown areas. No vehicles or equipment
will be allowed outside the work area without prior approval from
the landowner and, when applicable, the environmental monitor.
(4) Topsoil from work areas (tower sites, parking areas, open-cut electric
cable trenches, along access roads) shall be stockpiled separate from
other excavated material (rock and/or subsoil). At least 50 feet of
temporary workspace is needed along open-cut electric cable trenches
for proper topsoil segregation. All topsoil will be stockpiled immediately
adjacent to the area where stripped/removed and shall be used for
restoration on that particular site. Topsoil stockpile areas shall
be clearly designated in the field and on the on-site working set
of construction drawings.
(5) In cropland, hayland and improved pasture, a minimum depth of 48
inches of cover will be required for all buried electric cables. In
unimproved grazing areas and land permanently devoted to pasture,
a minimum depth of 36 inches of cover will be required. In areas where
the depth of soil over bedrock ranges from zero to 48 inches, the
electric cables shall be buried entirely below the top of the bedrock
or at the depth specified for the particular land use, whichever is
less. At no time will the depth of cover be less than 24 inches below
the soil surface.
(6) All excess subsoil and rock shall be removed from the site. On-site
disposal of such material may be allowed if approved by the landowner
and, when applicable, the environmental monitor, with appropriate
consideration given to any possible agricultural or environmental
impacts. (Any permits necessary for disposal under local, state and/or
federal laws and regulations must be obtained by the contractor, with
the cooperation of the landowner when required.)
(7) In pasture areas, work areas will be fenced to prevent livestock
access, consistent with landowner agreements.
(8) All pieces of wire, bolts, and other unused metal objects will be
picked up and properly disposed of as soon as practical after the
unloading and packing of turbine components so that these objects
will not be mixed with any topsoil. (Any permits necessary for disposal
under local, state and/or federal laws and regulations must be obtained
by the contractor, with the cooperation of the landowner when required.)
(9) Excess concrete will not be buried or left on the surface in active
agricultural areas. Concrete trucks will be washed outside of active
agricultural areas. (Any permits necessary for disposal under local,
state and/or federal laws and regulations must be obtained by the
contractor, with the cooperation of the landowner when required.)
C. Restoration guidelines.
(1) Following construction, all disturbed agricultural areas will be
decompacted to a depth of 18 inches with a deep ripper or heavy-duty
chisel plow. In areas where the topsoil was stripped, soil decompaction
shall be conducted prior to topsoil replacement. Following decompaction,
all rocks four inches and larger in size will be removed from the
surface of the subsoil prior to replacement of the topsoil. The topsoil
will be replaced to original depth and the original contours will
be reestablished where possible. All rocks four inches and larger
shall be removed from the surface of the topsoil. Subsoil decompaction
and topsoil replacement should be avoided after October 1, unless
approved on a site-specific basis by the landowner in consultation
with Ag and Markets. All parties involved should be cognizant that
areas restored after October 1 may not obtain sufficient growth to
prevent erosion over the winter months. If areas are to be restored
after October 1, some provision should be made to restore any eroded
areas in the springtime to establish proper growth.
(2) All access roads will be regraded to allow for farm equipment crossing
and to restore original surface drainage patterns or other drainage
pattern incorporated into the design.
(3) All restored agricultural areas shall be seeded with the seed mix
specified by the landowner in order to maintain consistency with the
surrounding areas.
(4) All surface or subsurface drainage structures damaged during construction
shall be repaired to as close to preconstruction conditions as possible,
unless said structures are to be removed as part of the project design.
(5) Following restoration, all construction debris will be removed from
the site.
D. Two-year monitoring and remediation.
(1) The project sponsor will provide a monitoring and remediation period
of no less than two years immediately following the completion of
initial restoration. The two-year period allows for the effects of
climatic cycles such as frost action, precipitation and growing seasons
to occur, from which various monitoring determinations can be made.
The monitoring and remediation phase will be used to identify any
remaining agricultural impacts associated with construction that are
in need of mitigation and to implement the follow-up restoration.
(2) General conditions to be monitored include topsoil thickness, relative
content of rock and large stones, trench settling, crop production,
drainage and repair of severed fences, etc. Impacts will be identified
through on-site monitoring of all agricultural areas impacted by construction
and through contact with respective farmland operators and the Department
of Agriculture and Markets.
(3) Topsoil deficiency and trench settling shall be mitigated with imported
topsoil that is consistent with the quality of topsoil on the affected
site. Excessive amounts of rock and oversized stone material will
be determined by a visual inspection of disturbed areas as compared
to portions of the same field located outside the construction area.
All excess rocks and large stones will be removed and disposed of
by the project sponsor.
(4) When the subsequent crop productivity within affected areas is less
than that of the adjacent unaffected agricultural land, the project
sponsor as well as other appropriate parties will help to determine
the appropriate rehabilitation measures to be implemented. Because
conditions which require remediation may not be noticeable at or shortly
after the completion of construction, the signing of a release form
prior to the end of the remediation period will not obviate the project
sponsor's responsibility to fully redress all project impacts.
(5) Subsoil compaction shall be tested using an appropriate soil penetrometer
or other soil compaction measuring device. Compaction tests will be
made for each soil type identified on the affected agricultural fields.
The subsoil compaction test results within the affected area will
be compared with those of the adjacent unaffected portion of the farm
field/soil unit. Where representative subsoil density of the affected
area exceeds the representative subsoil density of the unaffected
areas, additional shattering of the soil profile will be performed
using the appropriate equipment. Deep shattering will be applied during
periods of relatively low soil moisture to ensure the desired mitigation
and to prevent additional subsoil compaction. Oversized stone/rock
material which is uplifted to the surface as a result of the deep
shattering will be removed.