[Added 12-8-2005 by L.L. No. 2-2005[1]]
The Planning Board is authorized to approve cluster residential
development in the A, R-1, R-2, and R-3 Districts of the Town pursuant
to § 278 of the Town Law.
[1]
Editor's Note: This local law also repealed former § 144-16,
Purpose, former § 144-17, Amusements and exhibitions; former
§ 144-18. Excavation of earth products, as amended; former
§ 144-19, Single owner/operator businesses, as amended;
former § 144-20, Storage of flammable liquids or gas; and
former § 144-21, Storage of vehicles, machinery and materials
used in business, which immediately followed.
[Added 3-15-2017 by L.L.
No. 1-2017; amended 6-15-2023 by L.L. No. 3-2023]
A.
Authority. This solar energy systems section is adopted pursuant
to §§ 261 through 263 of the Town Law for the State
of New York, which authorizes the Town to adopt zoning provisions
that advance and protect the health, safety and welfare of the community,
and, in accordance with the Town Law of New York State, to make provision
for, so far as conditions may permit, the accommodation of solar energy
systems and equipment and access to sunlight necessary therefor.
B.
Findings. The Town Board of the Town of Hartland makes the following
findings:
(1)
The Town Board finds a growing need to properly site and regulate
solar energy systems within the boundaries of the Town of Hartland
to protect residential, agricultural, commercial, and other land uses,
to preserve the overall beauty, nature, and character of the Town
of Hartland, promote the effective and efficient use of solar energy
resources, protect the health, safety, and general welfare of the
citizens of the Town of Hartland, and to create synergy between solar
and the Town's Comprehensive Plan.
(2)
Solar energy systems deplete land available for other uses, introduce
industrial-type usages into other nonindustrial areas, and can pose
environmental challenges and compete with other activities.
(3)
Solar energy systems need to be regulated for removal when no longer
utilized, to prevent environmental problems and abandoned industrial
equipment.
C.
APPLICANT
BUILDING-INTEGRATED SOLAR ENERGY SYSTEM
BUILDING-MOUNTED SOLAR ENERGY SYSTEMS
FARMLAND OF STATEWIDE IMPORTANCE
GLARE
GLINT
GROUND-MOUNTED SOLAR ENERGY SYSTEM
HOST COMMUNITY AGREEMENT
LARGE-SCALE SOLAR ENERGY SYSTEM
NATIVE PERENNIAL VEGETATION
NONPARTICIPATING PROPERTY
PARCEL(S)
PARTICIPATING PROPERTY
POLLINATOR
PRIME FARMLAND
ROOFTOP-MOUNTED SOLAR ENERGY SYSTEM
SMALL GROUND-MOUNTED SOLAR ENERGY SYSTEM
SOLAR ENERGY SYSTEM
UTILITY-SCALE SOLAR ENERGY SYSTEM
Definitions. The following definitions shall apply to this section:
The person or entity filing an application and seeking an
approval under this section; the owner of a solar energy system or
a proposed solar energy system project; the operator of solar energy
system or a proposed solar energy system project; any person acting
on behalf of an applicant, solar energy system or proposed solar energy
system. Whenever the term "applicant" or "owner" or "operator" is
used in this section, said term shall include any person acting as
an applicant, owner, or operator.
A combination of solar panels and solar energy equipment
integrated into any building envelope system, such as vertical facades,
semi-transparent skylight systems, roofing materials, or shading over
windows, which produce electricity for on-site consumption.
A solar energy system that is affixed to the side(s) of a
building either directly or by means of support structures or other
mounting devices, but not including those mounted to the roof or top
surface of a building and designed and intended to generate electricity
solely for use primarily on said building or connected through a net-metering
system.
Land, designated as "farmland of statewide importance" in
the U.S. Department of Agriculture Natural Resources Conservation
Service's (NRCS's) Soil Survey Geographic (SSURGO) Database
on Web Soil Survey, that is of statewide importance for the production
of food, feed, fiber, forage, and oilseed crops as determined by the
appropriate state agency or agencies. Farmland of statewide importance
may include tracts of land that have been designated for agriculture
by state law.
The effect by reflections of light with intensity sufficient
as determined in a commercially reasonable manner to cause annoyance,
discomfort, or loss in visual performance and visibility in any material
respects.
Giving out or reflecting small flashes of light.
A solar energy system that is anchored to the ground via
a pole or other mounting system, detached from any other structure,
that generates electricity for on-site or off-site consumption.
A contract between a developer and a local governing body,
whereby the developer agrees to provide the community with certain
benefits and mitigate specified impacts of the solar project.
Any ground-mounted solar energy system that is designed and
intended to supply energy primarily into a utility grid for sale and
is 50 acres or less in size (defined as the fenced-in area that encloses
the panels and other related solar energy equipment, as determined
by the Town).
Native wildflowers, forbs, and grasses that serve as habitat,
forage, and migratory way stations for pollinators, and shall not
include any prohibited or regulated invasive species as determined
by the New York State Department of Environmental Conservation.
A property that is not affiliated with a solar energy system
project in any way.
A tract of land owned by an individual or entity leased or
otherwise controlled by an applicant upon which a solar energy system
is proposed to be constructed.
A property that is being leased for solar usage, or a property
that has an agreement or lease but is not having solar-related improvements
constructed upon it.
Bees, birds, bats, and other insects or wildlife that pollinate
flowering plants, including both wild and managed insects.
Land, designated as "prime farmland" or "prime farmland where
drained" in the U.S. Department of Agriculture Natural Resources Conservation
Service's (NRCS's) Soil Survey Geographic (SSURGO) Database
on Web Soil Survey, that has the best combination of physical and
chemical characteristics for producing food, feed, forage, fiber,
and oilseed crops and is also available for these land uses.
Any solar energy system that is affixed to the roof of a
legally permitted building or structure and wholly contained within
the limits of the roof surface and is designed and intended to generate
electricity primarily for on-site use or connected through a net-metering
system.
A solar energy system that is affixed to the ground either
directly or by support structures or other mounting devices. Said
system is an accessory structure, limited in size to 750 square feet
for residential use and 1,500 square feet for business use, and designed
and intended to generate electricity primarily for use on said lot
or through a net-metering system. (It can be sized to generate power
of no more than 110% of the site usage, as documented through NYSERDA.)
Any system or group of components designed to produce power
from the sun and affixed to real property, except self-contained,
single-purpose components, such as signage lighting panels. A solar
energy system in the Town of Hartland is classified as a rooftop-mounted
system, a small building-mounted system, a small ground-mounted system,
a large-scale solar energy system, or a utility-scale solar energy
system.
Any ground-mounted solar energy system that is designed and
intended to supply energy primarily into a utility grid for sale and/or
does not meet the definition of a small or large-scale solar energy
system.
D.
Applicability.
(1)
The requirements of this section shall apply to all solar energy
systems permitted, installed, or modified in the Town after the effective
date of this section, excluding general maintenance and repair.
(2)
Solar energy systems constructed or installed prior to the effective
date of this section shall not be required to meet the requirements
of this section.
(3)
Modifications to an existing solar energy system that increase the
solar energy system area by more than 5% of the original area of the
solar energy system (exclusive of moving any fencing) shall be subject
to this section.
(4)
All solar energy systems shall be designed, erected, and installed
in accordance with all applicable codes, regulations, and industry
standards as referenced in the NYS Uniform Fire Prevention and Building
Code (Building Code), the NYS Energy Conservation Code (Energy Code),
and the Town Code.
(5)
This section shall not apply to any lot owned by a municipality.
E.
General requirements.
(1)
A building permit shall be required for installation of all solar
energy systems.
(2)
Issuance of permits and approvals by the Planning Board shall include
review pursuant to the State Environmental Quality Review Act, ECL
Article 8, and its implementing regulations at 6 NYCRR Part 617 (SEQRA).
(3)
This section shall take precedence over any inconsistent provision
of the Zoning Law of the Town of Hartland.
F.
Use districts where allowed. No solar energy systems shall be permitted
in the Town of Hartland except in the zoning districts specified in
this section:
(1)
Rooftop-mounted, building-integrated, and building-mounted solar
energy systems are permitted in all zoning districts in the Town,
subject to setback and height restrictions and meeting glare and fire
safety requirements.
(2)
Small ground-mounted solar energy systems are permitted as accessory
structures in all zoning districts of the Town subject to all setback,
height, and area coverage restrictions and meeting glare and fire
safety requirements.
(3)
Large-scale solar energy systems are permitted (by the process described
later in this section) only in an Agricultural Use (AG), Agricultural-Business
Use (AB), or Light Industrial Use (I) District.
(4)
Utility-scale solar energy systems are permitted (by the process
described later in this section) only in an Agricultural Use District
(AG District), Agricultural Business Use District (AB District), or
Light Industrial Use District (I District), and as restricted as detailed
in this section.
G.
Approval requirements. The placement, construction, and major modification
of all solar energy systems within the boundaries of the Town of Hartland
shall be permitted as follows:
(1)
Rooftop-mounted, building-integrated, and building-mounted solar
energy systems shall follow building permit procedures for solar rooftop-mounted
systems meeting the requirements of this section.
(2)
Small ground-mounted solar energy systems shall follow building permit
procedures for small ground-mounted systems meeting the requirements
of this section and must be accompanied by a to-scale map showing
location, setbacks, and lot coverage.
(3)
Large-scale solar energy systems shall be permitted only by special
permit by the Town of Hartland Planning Board in use districts, where
allowed, in accordance with the criteria established in this section,
after SEQRA review, upon concurrent site plan approval issued by the
Town of Hartland Planning Board, and upon issuance of a building permit,
and shall be subject to all provisions of this section. In order to
ensure that the benefits of the community solar energy resource are
available to the entire community, the Town of Hartland requires the
applicant to enter into a solar energy system host community agreement
with the Town of Hartland.
(4)
Utility-scale solar energy systems shall be permitted only by special
permit by the Town of Hartland Planning Board in use districts, where
allowed, in accordance with the criteria established in this section,
after SEQRA review, upon concurrent site plan approval issued by the
Town of Hartland Planning Board, and upon issuance of a building permit,
and shall be subject to all provisions of this section. In order to
ensure that the benefits of the community solar energy resource are
available to the entire community, the Town of Hartland requires the
applicant to enter into a solar energy system host community agreement
with the Town of Hartland.
H.
General criteria and other requirements for rooftop-mounted, building-mounted
and small ground-mounted systems.
(1)
A rooftop-mounted solar energy system shall not be more than three
feet higher than the finished roof to which it is mounted, and in
no instance shall any part of the system extend beyond three feet
before the edge of the roof. Solar panels on pitched roofs shall be
installed parallel to the roof surface on which they are mounted and
shall be mounted with a maximum distance of eight inches between the
roof surface and the highest edge of the system. Maintenance access
shall be incorporated into the system as determined by the Building
Inspector.
(2)
Building-mounted solar energy systems shall not be more than three
feet from the building wall, and in no instance shall any part of
the system extend beyond the roof line or parapet wall.
(3)
Small ground-mounted solar energy systems shall be subject to the
following requirements:
(a)
The location of said solar energy system shall be placed in
accordance with setback requirements for an accessory structure of
the use district in which it is located;
(b)
The location of said solar energy system shall be only located
in the side or rear yard;
(c)
The total surface area of said solar energy system on a lot
shall not exceed the allowed accessory structures or combinations
of accessory structures where permitted in the district; and
(d)
Site plans for small ground-mounted systems shall include a
professionally prepared survey indicating the location of the proposed
system and setbacks from property lines and buildings.
(5)
Any solar energy system shall be accessible by all emergency service
vehicles and personnel.
(6)
All structures and devices used to support solar collectors shall
be nonreflective and/or painted a subtle or earth-tone color. All
solar panels shall not glint or glare, and proof to such must be submitted
at time of application and when the building permit is applied for.
(7)
The design, construction, operation, and maintenance of any solar
energy system shall prevent the misdirection and/or reflection of
solar rays onto neighboring properties, public roads, and public parks.
(8)
Artificial lighting of any solar energy systems shall be limited
to lighting required for safety and operational purposes and shall
be shielded from all neighboring properties and public roads.
(9)
If the use of a solar energy system is discontinued or not maintained,
the owner or operator shall notify the Building Inspector within 30
days of such discontinuance and shall remove the system and properly
dispose of all materials. (Reference the Niagara County solar panel
recycling law.) If a solar energy system is to be retained and reused,
the owner or operator shall further inform the Building Inspector
of this in writing at such time and obtain any necessary approvals
within one year; otherwise it shall be automatically deemed nonoperating
or abandoned.
I.
Special permit requirements for large-scale solar energy systems.
Applications under this section shall be made as follows:
(1)
Applicants for a special permit to place, construct, or make a major
modification to a large-scale solar energy system within the boundaries
of the Town of Hartland shall submit 12 sets of the following information
to the Building Inspector, who shall first present it to a Town-designated
professional engineer or consultant for an initial review and then
to the Planning Board for its review and recommendation. Once the
application is deemed complete and while the Planning Board is completing
its review, the project/application shall be referred to the Town
Board to begin completion of the host community agreement; this agreement
will need to be finalized before the Planning Board acts on the special
use permit.
(2)
The Planning Board may make such additional referrals as it deems
appropriate. No such application shall be deemed filed until any required
application fee has been paid. After considering such application
in accordance with this section, the Planning Board may grant the
special use permit, deny the special use permit, or grant the special
use permit and impose reasonable conditions and restrictions as authorized
by Town Law § 274-b, Subdivision 4. The following information
shall be contained in or accompany the application:
(a)
A completed State Environmental Quality Review Act (SEQRA) form.
(b)
Name, address, and telephone number of the property owner. If
the property owner is not the applicant, the application shall include
the name, address, and telephone number of the applicant and a letter
or other written permission signed by the property owner authorizing
the applicant to represent the property owner.
(c)
Documentation of access to the project site(s), including location
of all access roads, gates, parking areas, etc. Vehicular access/paths/roads
within the site must be designed to minimize the extent of impervious
materials and compaction and meet requirements to provide emergency
vehicle access.
(d)
Stormwater management and erosion and sediment control plans.
(e)
Utility interconnection data and a copy of written notification
to the utility of the proposed interconnection.
(f)
One- or three-line electrical diagram detailing the solar energy
system installation, associated components, and electrical interconnection
methods, with all disconnects and overcurrent devices.
(g)
A property owner who has installed or intends to install a large-scale
solar energy system may choose to negotiate with other property owners
in the vicinity for any necessary solar skyspace easements. The issuance
of a special use permit does not constitute solar skyspace rights,
and the Town shall not be responsible for ensuring impermissible obstruction
to the solar skyspace as a result of uses or development performed
in accordance with Town Code. In the event that solar easements are
negotiated by an applicant or property owner for a large-scale solar
energy system, a copy or documentation of any solar skyspace easements
shall be provided, properly recorded as such, negotiated with neighboring
property owners that shall, at a minimum, include:
[1]
The restrictions placed upon buildings, structures, vegetation,
and other objects or uses that would potentially obstruct the solar
skyspace of the solar energy system; and
[2]
A description of the dimensions of the easement expressed in
measurable terms, such as the maximum height of buildings and structures,
vertical or horizontal angles measured in degrees, or the hours of
the day on specified dates during which direct sunlight to a specified
surface of a solar collector may not be obstructed, or a combination
of these descriptions; and
[3]
The amount, if any, of permissible obstruction of the solar
skyspace through the easement, expressed in measurable terms, such
as a specific percentage of the solar skyspace that may be obstructed
or hours during the day; and
[4]
Provision for trimming vegetation that would impermissibly obstruct
solar skyspace, including any compensation for trimming expenses;
and
[5]
Provisions for compensation of the owner/operator benefiting
from the easement in the event of impermissible obstruction of the
solar skyspace that would be in violation of the easement; and
[6]
The terms or conditions, if any, under which the easement may
be revised or terminated.
(3)
Information on the groundwater conditions in the area and all public
and private wells within 500 feet of the site.
(4)
A lighting plan. Lighting of the solar energy systems shall be limited
to that minimally required for safety and operational purposes and
shall be reasonably shielded and downcast (dark-sky-compliant) from
abutting properties.
(5)
Information on any noise impacts on surrounding homes or other sensitive
receptors. The one-hour average noise generated from the solar energy
system's components and associated ancillary equipment shall
not exceed 45 decibels, as measured from the boundary of any nonparticipating
property. Applicants may submit equipment and component manufacturers'
noise ratings to demonstrate compliance. The applicant may be required
to provide operating sound pressure level measurements from a reasonable
number of sampled locations at the perimeter of the solar energy system
to demonstrate compliance with this standard.
(6)
Clearing and grading plan(s). Removal of existing trees larger than
six inches in diameter should be minimized to the extent possible.
No more than 10% of the existing trees larger than six inches in diameter
should be removed.
(7)
Information on planned signage:
(a)
No signage or graphic content shall be displayed on the solar
energy system except the manufacturer's name, equipment specification
information, safety information, and twenty-four-hour emergency contact
information. Said information shall be depicted within an area no
more than eight square feet.
(b)
As required by National Electrical Code (NEC), disconnect and
other emergency shutoff information shall be clearly displayed on
a light-reflective surface. A clearly visible warning sign concerning
voltage shall be placed at the base of all pad-mounted transformers
and substations.
(8)
An operation and maintenance plan for all leased and owned lands
(including required setbacks/buffers). Maintenance includes equipment,
roadways/access drives, plantings under the panels, landscaped areas,
and all other areas of the site.
(9)
A safety plan (including communication with emergency service providers).
(10)
An emergency operations plan must be submitted at the time of
application. This plan shall address the issues in the Town's
guidance document and any additional items that are requested by the
Planning Board. The Planning Board will receive input from emergency
service providers and others as deemed necessary. If approved, a copy
of the approved emergency operations plan shall be given to the system
owner, the local fire department, and local fire code official. A
permanent copy shall also be placed in an approved location to be
accessible to facility personnel, fire code officials, and emergency
responders.
(11)
Information on the environmental and cultural resources (as
identified through the NYSDEC mapping system and by the Town of Hartland)
on the subject property and surrounding properties.
(12)
A site plan in accordance with the Town of Hartland's site
plan requirements and drawn in sufficient detail as follows:
(a)
Plans and drawings of the solar energy system installation signed
by a professional engineer registered in New York State showing the
proposed layout of the entire solar energy system along with a description
of all components, whether on-site or off-site, existing vegetation
and proposed clearing and grading of all sites involved, and utility
lines, both above and below ground, on the site and adjacent to the
site; and
(b)
A landscape plan signed by a professional landscape architect;
and
(c)
Property lot lines and the location and dimensions of all existing
structures and uses on site within 500 feet of the solar panels, and
the zoning of the site and surrounding properties; and
(d)
Proposed fencing and/or screening for said project; and
(e)
Information on the equipment to be installed, including the
requirement that the system components not contain any hazardous substances.
(13)
Any such additional information as may be required by the Town's
professional engineer or consultant, Town of Hartland Planning Board,
Town Attorney, or Building Inspector.
J.
Special permit criteria; restrictions. Special permits issued for
a large-scale solar energy system shall meet the following conditions:
(1)
Minimum lot area. The minimum lot upon which the system is to be
constructed shall be 15 acres. For purposes of this calculation, contiguous
participating parcels may be treated as a single lot.
(2)
Maximum coverage area. The maximum coverage area of the system (within
the fenced-in area) shall be 50 acres.
(3)
Setbacks. Any large-scale solar energy system shall adhere to the
following setbacks (from the fenced-in area). Greater setbacks may
be needed due to specific property issues and adjoining uses (determined
through the SEQR process).
(a)
From any zoning district boundary: a minimum of 200 feet from
all nonparticipating property lot lines bordering any residential
use district.
(b)
From any property lot lines: a minimum of 100 feet from any
nonparticipating property lot line, and 10 feet from any participating
property line.
(d)
From buildings or structures on a participating property: a
minimum of 100 feet from any building, structure or dwelling.
(e)
From public roads: a minimum of 100 feet from any public road
(measured from the road right-of-way line).
(f)
From schools and public parks: a minimum of 1,000 feet from
all property lot lines bordering a school or public park.
(4)
Maximum overall height. The height of a large-scale solar energy
system shall not exceed 20 feet when oriented at maximum tilt.
(5)
Number of large-scale solar energy systems allowed per lot. There
shall only be allowed one large-scale solar energy system per lot.
(6)
A large-scale solar energy system shall adhere to all applicable
federal, state, county and Town of Hartland laws, regulations, building,
plumbing, electrical, and fire codes, and the applicant shall provide
any requested documentation of such correspondence.
(7)
Development and operation of a large-scale solar energy system shall
not have a significant adverse impact on fish, wildlife, or plant
species or their critical habitats, or other significant habitats
identified by the Town of Hartland or other federal or state regulatory
agencies.
(8)
All transmission lines and wiring associated with a large-scale solar
energy system shall be buried and include necessary encasements in
accordance with the National Electrical Code and Town requirements.
The applicant is required to show the locations of all proposed overhead
and underground electric utility lines, including substations and
junction boxes and other electrical components for the project on
the site plan.
(9)
All transmission lines and electrical wiring shall be in compliance
with the utility company's requirements for interconnection.
(10)
A berm and/or screening may be required along property lines
abutting a residential lot.
(11)
Prior to issuance of a certificate of occupancy, the applicant
shall provide a post-construction certification from a professional
engineer registered in New York State that the project complies with
applicable codes and industry practices and has been constructed and
is operating according to the design plans.
(12)
Compliance with regulatory agencies. The applicant is required
to obtain and maintain all necessary regulatory approvals and permits
from all federal, state, county, and local agencies having jurisdiction
and approval related to the completion of a large-scale solar energy
system.
(13)
Decommissioning.
(a)
Solar energy systems that have been abandoned and/or are not
producing electricity (defined as operating below 50% capacity of
the system for a period of at least six months over a twelve-month
period) shall be removed at the owner's and/or operator's
expense, which at the owner's option may come from any security
made with the Town as set forth in this section. A yearly operational
report will be required to be submitted to the Town documenting the
system's performance.
(b)
A decommissioning plan signed by the owner and/or operator of
the solar energy system shall be submitted by the applicant, addressing
the following:
[1]
The cost of removing the solar energy system (no allowance for
recycle/salvage value).
[2]
The time required to decommission and remove the solar energy
system and any ancillary structures, including sight barriers.
[3]
The time required to repair any damage caused to the property
by the installation and removal of the solar energy system.
[4]
If on agricultural lands, the plan must meet the NYS Department
of Agriculture and Markets standards for decommissioning (and will
be a condition of the SUP).
(c)
Security.
[1]
The deposit, execution, or filing with the Town Clerk of cash,
bond, or other form of security reasonably acceptable to the Town
Attorney and/or Engineer and approved by the Town Board, shall be
in an amount sufficient to ensure the good-faith performance of the
terms and conditions of the permit issued pursuant hereto and to provide
for the removal and restorations of the site subsequent to removal.
The amount of the bond or security shall be 125% of the cost of removal
of the solar energy system and restoration of the property with an
escalator of 2% annually for the life of the solar energy system.
The decommissioning amount shall not be reduced by the amount of the
estimated salvage value of the solar energy system. This security
amount shall be reviewed periodically and updated/renewed as necessary
(determined at the time of the first security agreement). This "security"
shall be in place prior to the start of construction.
[2]
In the event of default upon performance of such conditions,
after proper notice and expiration of any cure periods, the cash deposit,
bond, or security shall be forfeited to the Town, which shall be entitled
to maintain an action thereon. The cash deposit, bond, or security
shall remain in full force and effect until restoration of the property
as set forth in the decommissioning plan is completed.
[3]
In the event of default or abandonment of the solar energy system,
the system shall be decommissioned as set forth in this section.
(14)
Clearing, grading, and stormwater and erosion control.
(a)
Before the Town of Hartland shall issue a clearing, grading,
stormwater or building permit for a large-scale solar energy system,
the applicant shall submit a stormwater and erosion control plan to
the Engineering Department for its review and approval; and
(b)
The stormwater plan must identify any existing ditches and drainageways
on the subject property and provide any drainage easements required
by the Town of Hartland (these easements are typically 100 feet in
width, centered on the ditch or drainageway); and
(c)
The plan shall minimize the potential adverse impacts on wetlands
and Class I and II streams and the banks and vegetation along those
streams and wetlands and minimize erosion or sedimentation.
(15)
Screening and visibility.
(a)
Solar energy systems with a coverage area of less than five
acres shall have views minimized from adjacent nonparticipating properties
to the extent reasonably practicable using architectural features,
earthen berms, landscaping, or other screening methods that will harmonize
with the character of the property and surrounding area.
(b)
Solar energy systems with a coverage area larger than five acres
shall be required to:
[1]
Conduct a visual assessment of the visual impacts of the solar
energy system on public roadways and adjacent properties. At a minimum,
a line-of-sight profile analysis must be provided. Depending upon
the scope and potential significance of the visual impacts, additional
impact analyses, including, for example, a digital viewshed report,
may be required to be submitted by the applicant.
[2]
Submit a screening and landscaping plan to show adequate measures
to screen through landscaping, grading, or other means so that views
of solar panels and solar energy equipment shall be minimized as reasonably
practical from public roadways and adjacent properties to the extent
feasible at the start of activation. The Planning Board will in good
faith determine the adequacy of these measures in its sole and absolute
discretion.
[a]
The screening and landscaping plan shall specify
the locations, elevations, height, plant species, and/or materials
that will comprise the structures, landscaping, and/or grading used
to screen and/or mitigate any adverse aesthetic effects of the system.
The landscaped screening shall be comprised of a minimum of one evergreen
tree, at least six feet high at time of planting, plus two supplemental
shrubs at the reasonable discretion of the Town Planning Board, all
planted every 10 linear feet along the perimeter of the solar energy
system. Existing vegetation on the subject property may be used to
satisfy all or a portion of the required landscaped screening. A list
of suitable evergreen tree and shrub species shall be provided by
the applicant for the Town to review. This minimum screening requirement
will be reduced if adjoining properties are participating properties.
Every effort should be made to plant native trees and shrubs to preserve
the character of the area and support local wildlife. The contractor,
in conjunction with a local nursery, should recommend shrub screening
for Planning Board approval.
(c)
For all large-scale solar energy systems, the recommendations
of a landscape professional are required. The Planning Board can require
that large-scale systems involving complex or sensitive visual and/or
aesthetic concerns be approved by a New-York-State-registered landscape
architect. All large-scale solar energy systems landscape plans must
be designed/approved by a New-York-State-registered landscape architect.
(d)
For any buildings or structures (not panels) to be placed on
the site, the applicant shall be required to submit plans illustrating
how these structures will blend into the character of the area. For
example, any buildings can be made to look like agricultural structures
such as barns.
(16)
Hazardous materials. Proof that the project components shall
not contain any hazardous materials that could contaminate soils or
the air by their release (Units shall not contain cadmium, lead or
other hazardous substances such as PFAS substances used in coatings,
etc.) must be provided. MSD sheets for all materials considered hazardous
shall be provided to the Barker Fire Department, Code Enforcement
Officer, and Town Planning Board.
(17)
Agricultural resources. For projects located on agricultural
lands:
(a)
Any large-scale solar energy system shall not be permitted if
the coverage area contains 50% or more land classified as prime farmland
or farmland of statewide importance. Prime farmland is determined
and classified by the US. Department of Agriculture (USDA), and the
percentage of prime farmland and farmland of statewide importance
is calculated using USDA maps and online data tools, including any
amendments made to those maps and data. It is the responsibility of
the developer and/or landowner to provide written evaluation, data,
and mapping to the Planning Board that the coverage area does not
meet this 50% threshold. The evaluation must contain data and maps
that are supported, approved and/or published by the USDA, NYS Agriculture
and Markets and/or Niagara County Soil and Water Conservation District
(NRCS). The Planning Board may require that this evaluation be reviewed
by the Town Engineer, consultant, or local agricultural services agent,
where the cost of this review will be the responsibility of the developer
or landowner.
(b)
Large-scale solar energy systems located on farmland shall be
constructed in accordance with the construction requirements of the
New York State Department of Agriculture and Markets. (See NYS Agriculture
and Markets Guidelines.)
(c)
Large-scale solar energy system owners shall develop, implement,
and maintain native vegetation to the extent practicable pursuant
to a vegetation management plan by providing native perennial vegetation
and foraging habitat beneficial to game birds, songbirds, and pollinators.
To the extent practicable, when establishing perennial vegetation
and beneficial foraging habitat, the owners shall uses native plant
species and seed mixes. Once established, other agriculture uses such
as pasturing livestock and apiculture are permissible and encouraged.
(d)
Agricultural restoration requirements. Once the system is decommissioned,
the site shall be restored and remediated in accordance with the NYS
Agriculture and Markets Guidelines. (This will be a condition of the
special use permit.)
K.
Special permit requirements for utility-scale solar energy systems.
All utility-scale solar energy systems are permitted through the issuance
of a special use permit and are subject to the site plan and special
use permit requirements set forth in the large-scale solar energy
system requirements and the additional or replacement requirements
listed in this section. These utility-scale solar energy systems are
very large systems that have a potential to significantly impact the
Town of Hartland, its citizens, and the character and the economy
of the community. Therefore, utility-scale systems shall require the
following additional (in addition to those for the large-scale scale
solar energy systems) submittals and requirements, or include revisions
to the large-scale system requirements as follows:
(1)
Any utility-scale solar energy system shall not be permitted if the
coverage area contains 25% or more land classified as prime farmland
or farmland of statewide importance.
(2)
Utility-scale solar energy systems shall not be allowed in any areas
of the Town that are restricted from these types of projects as denoted
in the Town of Hartland Comprehensive Plan (on file with the Town
Clerk). They also cannot be located within 1/2 mile of any other large-scale
or utility-scale system.
(3)
Submittal of an agricultural impact statement to determine the solar
system's impact on agriculture in the Town. The Planning Board,
on a project-by-project basis, can amend the scope and detail of information
required from the applicant, and the applicant should consult with
NYS Agriculture and Markets, USDA, and the Natural Resources Conservation
District (NRCS) representatives in preparation of this statement.
(4)
Submittal of an economic impact analysis to determine the effect
a utility-scale solar energy system will have on the economy of the
Town. This includes those outlined in the agricultural impact statement
and other factors related to commerce, employment, housing, transportation,
tourism, education, environmental protection, municipal services,
revenues, and taxation. The Planning Board, on a project-by-project
basis, can further amend the scope and detail of information required
from the applicant.
L.
Special permit criteria; restrictions for utility-scale solar energy
systems:
(1)
Maximum coverage area. There is not a maximum coverage area for a
utility-scale system.
(2)
Setbacks. Any utility-scale solar energy system shall adhere to the
following setbacks (from the fenced-in area). Greater setbacks may
be needed due to specific property issues and adjoining uses.
(a)
From any zoning district boundary: a minimum of 100 feet from
all nonparticipating property lot lines bordering any residential
zoning district boundary.
(b)
From any property lot lines: a minimum of 50 feet from any nonparticipating
property lot line, and no setback requirement from any participating
property line.
(d)
From buildings or structures on a participating property: a
minimum of 100 feet from any building, structure or dwelling.
(e)
From public roads: a minimum of 50 feet from any public road
(measured from the road right-of-way line).
(f)
From schools and public parks: a minimum of 1,000 feet from
all property lot lines bordering a school or public park.
(3)
Maximum overall height. The height of a utility-scale solar energy
system shall not exceed 25 feet when oriented at maximum tilt.
M.
Maintenance, procedures, and fees.
(1)
Time limit on completion. Upon the granting of a special use permit
for a large-scale or utility-scale solar energy system by the Planning
Board, the building permit shall be obtained within six months of
the granting of the special use permit, and the project shall be completed
within 12 months of the issuance of the building permit. If not constructed,
the special use permit and site plan approval and building permit
shall automatically lapse without notice.
(2)
Inspections. Upon reasonable notice, the Town of Hartland Building
Inspector or his or her designee may enter a lot on which a solar
energy system has been approved for the purpose of ensuring compliance
with any requirements or conditions. 24 hours' advance notice
by telephone to the owner/operator or designated contact person shall
be deemed reasonable notice. The applicant/operator shall authorize
and cooperate in such inspection. Furthermore, a large scale or utility-scale
solar energy system shall be inspected annually or at any other time
deemed necessary by the Town's Building Inspector by a New-York-State-licensed
professional engineer that has been approved by the Town. Any fee
or expense associated with this inspection shall be borne entirely
by the permit holder.
(3)
General complaint process. During construction, the Town Building
Inspector can issue a stop order at any time for any violations of
the special use permit or building permit. After construction is complete,
the permit holder of a large-scale or utility-scale solar energy system
shall establish a contact person, including name and phone number,
for receipt of any complaint concerning any permit requirements.
(4)
Continued operation. A solar energy system shall be maintained in
operational condition at all times, subject to reasonable maintenance
and repair outages. Operational condition includes meeting all approval
requirements and conditions. Further, the Building Inspector shall
also have the right to request documentation from the owner of a solar
energy system regarding the system's usage at any time.
(5)
Annual report. The owner and/or operator of a large-scale or utility-scale
solar energy system must submit to the Town's Code Enforcement
Officer a yearly report, due no later than February 15, which is certified
as accurate and complete under penalty of perjury and contains the
following information:
(a)
The rated capacity of the system;
(b)
The amount of electricity generated by the system in the most
recent twelve-month period;
(c)
The amount of electricity transmitted to the power grid in the
most recent twelve-month period;
(d)
Identification of any change of ownership of the large-scale
solar energy system or the owner of the land upon which it is sited;
(e)
Identification of any change in the party responsible for decommissioning
and removal of the system upon its abandonment;
(f)
Evidence that the surety required for decommissioning remains
in effect and is irrevocable for at least the next two years; and
(g)
A report on any damage or fires that have occurred and testing
of groundwater and wells (if any fire or damage has occurred) and
the findings of that testing provided to the Town.
(6)
Removal. All solar energy systems shall be dismantled and removed
by the owner/operator immediately from a lot when the special use
permit or approval has been revoked by the Town of Hartland Planning
Board or the solar energy system has been deemed to be nonoperating
or abandoned by the Building Inspector for a period of more than 365
days at the cost of the owner. If the owner/operator does not dismantle
and remove said solar energy system as required, the Town Board may,
after a hearing at which the owner shall be given an opportunity to
be heard and present evidence, dismantle and remove said facility
and place the cost of removal as a tax lien on said parcel. Such action
shall be in addition to and not in lieu of any other enforcement remedies
the Town may have.
(7)
Determination of abandonment or nonoperation. A determination of
the abandonment or nonoperation of a solar energy system shall be
made by the Town Building Inspector, who shall provide the owner/operator
with written notice by personal service or certified mail at the address
shown in the records of the Town or the application. Any appeal by
the owner of the Building Inspector's determination of abandonment
or inoperability shall be filed with the Town of Hartland Zoning Board
of Appeals within 30 days of the Building Inspector causing personal
service or mailing certified mail of his written determination, and
the Board shall hold a hearing on same. The filing of an appeal does
not stay the following time frame unless the Zoning Board of Appeals
or a court of competent jurisdiction grants a stay or reverses said
determination. At the earlier of 366 days from the date of determination
of abandonment or inoperability without reactivation approved or upon
completion of dismantling and removal, any approvals for the solar
energy system shall automatically expire.
(8)
Application and annual fees.
(a)
Large-scale and utility-scale solar energy systems. An applicant
shall pay an initial application fee of $2,500, or such other amount
as the Town Board may, from time to time, determine by resolution,
upon filing its special use permit and site plan application to cover
the cost of processing and reviewing the application (including legal
and consulting costs). If approved, the owner shall pay an annual
fee of $1,000, or such other amount as the Town Board may, from time
to time, determine by resolution, to cover the cost of processing
and reviewing the annual inspection report and for administration,
inspections, and enforcement.
(9)
Prior to the issuance of a building permit, the applicant shall document
that all applicable federal, state, county, and local permits have
been obtained.
(10)
Prior to the issuance of any building permit for a large-scale
or utility-scale solar energy system and as a condition to any special
use permit being issued, the applicant and its general contractor
shall enter into a written road use agreement benefiting the Town,
and in a format acceptable to the Town at its sole discretion. Such
road use agreement will require the applicant and the general contractor
to indemnify and hold the Town harmless from any and all damage to
the roadways within the Town that may result from the development
of the applicant's large-scale or utility-scale solar energy
system. As a part of such road use agreement, the applicant shall
provide an irrevocable financial security bond (or other form of surety
acceptable to the Town at its sole discretion), benefiting the Town
that shall ensure the indemnification and hold-harmless provisions
above.
(a)
In the event that any damage is done to any Town road as a result
of the development of the applicant's large-scale or utility-scale
solar energy system, said applicant and/or general contractor shall
be responsible to perform repairs to such road that are acceptable
to the Town Highway Superintendent in his/her reasonable discretion.
(b)
Such repairs shall be completed within 60 days of when written
notice of a demand to repair was personally served or sent via certified
mail to the applicant or its general contractor. Should the applicant
or its general contractor fail to effectuate such repairs within 60
days, or within a different timeline at the discretion of the Highway
Superintendent, the Town shall be permitted to execute on the irrevocable
financial security bond (or other form of surety) with written notice
to the applicant or its general contractor.
(c)
The provisions of the road use agreement required hereby and
the requisite financial security bond (or other form of surety) shall
remain in full force and effect for no less than one year after all
construction has been completed and the project has been certified
as complete by a professional engineer.
(d)
No building permit may be issued for any approved large-scale
or utility-scale solar energy system until such time as a road use
agreement has been executed by all parties.
(11)
Special use permits for a large-scale or utility-scale solar
energy system granted under this section shall be issued only following
a public hearing held as required for special use permits under the
New York State Town Law.
(12)
The Planning Board may:
(a)
For large-scale or utility-scale solar energy systems, grant
a special use permit, deny a special use permit, or grant a special
use permit with written stated conditions. Upon issuance of a special
use permit, the applicant shall obtain a building permit for the large-scale
or utility-scale solar energy system.
(13)
Any changes or alterations post-construction to a large-scale
or utility-scale solar energy system shall be allowed only by amendment
to the special use permit and/or site plan (if required), subject
to all requirements of this Code.
(14)
Special use permits for large-scale or utility-scale solar energy
systems shall be assignable or transferable so long as they are in
full compliance with this section and all the conditions, and the
Building Inspector is notified in writing at least 15 days prior thereto.
(15)
In addition to the requirements of this section, the special
use permit application shall be subject to any other site plan approval
requirements set forth in the Zoning Law.
N.
Solar energy system liability insurance.
(1)
The holder of a special use permit for a solar energy system shall
agree to secure, and maintain for the duration of the permit, public
liability insurance as follows:
(a)
Commercial general liability covering personal injuries, death,
and property damage: $5,000,000 per occurrence ($10,000,000 aggregate),
which shall specifically include the Town of Hartland and its officers,
councils, employees, attorneys, agents, and consultants as additional
named insureds.
(b)
Umbrella coverage: $10,000,000.
(2)
Insurance company. The insurance policies shall be issued by an agent
or representative of an insurance company licensed to do business
in New York State and with at least a Best's rating of "A."
(3)
Insurance policy cancellation. The insurance policies shall contain
an endorsement obligating the insurance company to furnish the Town
of Hartland with at least 30 days' prior written notice in advance
of cancellation.
(4)
Insurance policy renewal. Renewal or replacement policies shall be
delivered to the Town of Hartland at least 15 days before the expiration
of the insurance that such policies are to renew or replace.
(5)
Copies of insurance policy. No more than 15 days after the grant
of the permit before construction is initiated, the permit holder
shall deliver to the Town of Hartland a copy of each of the policies
or certificates representing the insurance in the required amounts.
(6)
Certificate of insurance. A certificate of insurance states that
it is for informational purposes only and does not confer sufficient
rights upon the Town of Hartland; therefore, a certificate of insurance
shall not be deemed to comply with this section.
(7)
Indemnification. Any application for a solar energy system within
the Town of Hartland shall contain an indemnification provision. The
provision shall require the applicant/owner/operator to at all times
defend, indemnify, protect, save, hold harmless, and exempt the Town
of Hartland and its officers, councils, employees, attorneys, agents,
and consultants from any and all penalties, damages, costs, or charges
arising out of any and all claims, suits, demands, causes of action,
or award of damages, whether compensatory or punitive, or expenses
arising therefrom either at law or in equity which might arise out
of or are caused by the placement, construction, erection, modification,
location, equipment's performance, use, operation, maintenance,
repair, installation, replacement, removal, or restoration of said
solar energy system; excepting, however, any portion of such claims,
suits, demands, causes of action or award of damages as may be attributable
to the negligent or intentional acts or omissions of the Town of Hartland
or its employees or agents. With respect to the penalties, damages,
or changes referenced herein, reasonable attorneys' fees, consultant
fees, and expert witness fees are included in those costs that are
recoverable by the Town of Hartland.
O.
Violation/revocation.
(1)
Any violation of this section or of the terms of a special use permit
constitutes a violation pursuant to the Zoning Code.
(2)
The Town may enforce this section by obtaining an injunction, temporary
restraining order, temporary injunction, or any other remedy available
in law or equity.
(3)
If the applicant violates any of the conditions of its special use
permit or site plan approval or violates any other local, state, or
federal laws, rules, or regulations, this shall be grounds for revocation
of the special use permit or site plan approval. Revocation may occur
after the applicant/owner/operator is notified in writing of the violations
and the Town of Hartland Planning Board holds a hearing on same.
P.
Severability. If any section, subsection, phrase, sentence, or other
portion of this section is for any reason held invalid, void, unconstitutional,
or unenforceable by any court of competent jurisdiction, such portion
shall be deemed a separate, distinct, and independent provision, and
such holding shall not affect the validity of the remaining portions
hereof.
[Added 3-15-2017 by L.L.
No. 3-2017]
A.
Findings. The Town Board of the Town of Hartland makes the following
findings:
(1)
The Town Board of the Town of Hartland finds that there is a growing
need to properly site and regulate noncommercial wind energy conversion
systems. Prior to the adoption of this section, no specific procedures
existed to address the siting of noncommercial wind energy conversion
systems. Accordingly, the Town Board finds that the promulgation of
this section is necessary to direct the location, construction and
maintenance of these systems.
(2)
Noncommercial wind energy towers have a potential beneficial effect
of producing "clean energy," low-cost power to residents of and businesses
in the Town, but also can adversely affect the enjoyment of adjacent
areas, can cause aesthetic problems, and are not compatible with other
land uses in some cases.
(3)
Furthermore, the Town Board finds that the small-Town atmosphere
and character of the Town of Hartland requires regulation of noncommercial
wind energy conversion systems, and this section is necessary to direct
the location of noncommercial wind energy conversion systems within
the boundaries of the Town of Hartland to address the number of such
towers, to protect residential, business areas and other land uses
from potential adverse impacts of noncommercial wind energy conversion
systems to preserve the overall beauty, nature and character of the
Town of Hartland and to protect the health, safety and general welfare
of the citizens of the Town of Hartland.
(4)
Noncommercial wind energy conversion systems need to be regulated
for removal when no longer utilized.
B.
APPLICANT
NONCOMMERCIAL WIND ENERGY CONVERSION SYSTEM
SEQRA
TOTAL HEIGHT (also MAXIMUM OVERALL HEIGHT)
TOWER
TOWER HEIGHT
WIND ENERGY CONVERSION SYSTEMS
WIND TURBINE
Definitions. The following definitions shall apply to this section:
The person or entity filing an application and seeking a
permit under this section; the owner of a noncommercial wind energy
conversion system or a proposed project; the operator of a noncommercial
wind energy conversion system or proposed project; any person acting
on behalf of an applicant, noncommercial wind energy conversion system
project or proposed noncommercial wind energy conversion system. Whenever
the term "applicant" or "owner" or "operator" is used in this section,
said term shall include any person acting as an applicant, owner or
operator.
A wind energy conversion system, which may be referred to
as "NCWECS" throughout this section, consisting of one wind turbine,
one tower, and associated control or conversion electronics, with
a total maximum height of not more than 165 feet, as measured from
the ground elevation to the top of the tip of the blade in the vertical
position, and is intended to primarily supply electrical power for
the use on the subject property.
The New York State Environmental Quality Review Act, as amended
from time to time, and the regulations promulgated pursuant thereto.
The height of the wind energy conversion system measured
from the ground elevation to the top of the tip of the blade in the
vertical position.
The support structure, including guyed, monopole, and lattice
types, upon which a wind turbine and other mechanical devices are
mounted.
The height above grade of the uppermost fixed portion of
the tower, excluding the length of any axial rotating turbine blades.
Any machine or wind facility that converts the kinetic energy
of wind into electricity, and all related infrastructure and appurtenances.
Any piece of electrical generating equipment that converts
wind energy into electrical energy through the use of airfoils, rotating
turbine blades, or similar devices to capture the wind.
C.
Use districts where allowed. No wind energy conversion systems shall be allowed in the Town of Hartland (unless authorized as a commercial/industrial wind energy System) except as authorized in this § 144-18. Subject to the provisions of this section, NCWECS shall be allowed only in the Agricultural Use District (A District), or Industrial Use (I District). Any inconsistent provisions of the Zoning Law which may be interpreted to allow noncommercial wind energy conversion systems in other districts are hereby superseded.
D.
General regulations. The placement, construction, and major modification
of all NCWECS within the boundaries of the Town of Hartland shall
be permitted only by special use permit by the Town of Hartland Planning
Board in use districts where allowed in accordance with the criteria
established in this section, upon concurrent site plan approval issued
by the Town of Hartland Planning Board. The provisions of this section
shall supersede any inconsistent provisions of the Zoning Code.
E.
Special permit requirements. Application for a special use permit
shall be made as follows: Applicants shall submit 12 sets of the following
information to the Building Inspector, who may submit the application
to a professional engineer or consultant for an initial review and
then onto the Planning Board for its review and recommendation. The
Planning Board may require such additional referrals as it deems appropriate.
No such application shall be deemed filed until any required application
fee has been paid. After compliance with the requirements of this
section, the Planning Board may grant the special use permit, deny
the special use permit or grant the special use permit and impose
reasonable conditions and restrictions by Town Law § 274(b)(4).
The following information shall be contained in the application:
(1)
A completed State Environmental Quality Review Act (SEQRA) short
form environmental assessment form (EAF), in accordance with SEQRA
regulations.
(2)
Necessary permit information:
(a)
Name and address of the applicant;
(b)
Evidence that the applicant is the owner of the property involved
or has the written permission of the owner to make such an application;
(c)
Specific information on the type, size, height, rotor material,
rated power output, performance, safety, and noise characteristics
of all NCWECS components;
(d)
Photographs or detailed drawings of each NCWECS component including
the tower and foundation;
(e)
Utility interconnection data and a copy of a written notification
to the utility of the proposed interconnection;
(f)
An acoustic report shall be furnished for the specific wind
turbine technology which provides sound curve based on production
levels for the overall dB(A) measurement of the wind turbine at different
wind speeds based on field testing. This shall be done in accordance
with the Small Wind Certification Council (SWCC) standards which have
standardized North American reporting on turbine energy and sound
performance;
(g)
A report from the turbine manufacturer stating the wind speed
and conditions that the wind turbine is designed to withstand (including
all assumptions);
(h)
A copy of written notification to the Federal Aviation Administration
(FAA) and to Mercy Flight, and any correspondence from said entities;
(i)
If a proposed NCWECS is located within two miles of any microwave
communications link, then the application shall include a copy of
a written notification to the operator of the link; and
(j)
If a proposed NCWECS is located within a one-hundred-year floodplain
area, then the application shall include any such flood hazard areas
are shown on the floodplain maps with a detailed report which shall
address the potential for wind erosion, water erosion, sedimentation,
and flooding, and which shall propose mitigation measures for such
impacts.
(3)
A site plan drawn in sufficient detail to show the following:
(a)
Location of the tower(s) on the lot and the tower height, including
blades, wind turbine diameter, and ground clearance;
(b)
Dimensional representation of the various structural components
of the tower construction including the base and footing;
(c)
Property lot lines and the location and dimensions of all existing
structures and uses on the lot within 500 feet of the NCWECS;
(d)
Proposed plan for restoration of the site after construction
according to New York State Department of Environmental Conservation
and Town of Hartland guidelines and requirements;
(e)
Certification by a registered New York State professional engineer
that the tower's design is sufficient to withstand wind loading requirements
for structures as established by the New York State Uniform Construction
Code; and
(f)
Wind characteristics and dominant wind direction from which
50% or more of the energy contained in the wind flows.
(4)
Any such additional information as may be required by the Town's
professional engineer or consultant, Town of Hartland Planning Board,
Town Attorney or Building Inspector.
F.
Special permit criteria. Special permits issued for an NCWECS shall
meet the following conditions:
(1)
Minimum lot area: The minimum lot area needed for one tower and one
wind turbine shall be 10 acres. (Two wind towers and two wind turbines
need a minimum lot area of at least 20 acres.)
(2)
Setbacks: Any NCWECS shall adhere to the following setbacks:
(a)
From any use district boundary, a minimum 750 feet.
(b)
From any property lot lines: A minimum 1 1/2 times the
total height of the NCWECS from any property lot line.
(d)
From public roads and railroads:
(e)
From schools, public parks: A minimum of 750 feet from all property
lot lines bordering a school or public park.
(f)
From aboveground transmission lines: A minimum 1 1/2 times
the total height of the NCWECS from any aboveground transmission line
greater than 12 kilovolts.
(3)
Maximum overall height: The maximum overall height of any NCWECS
shall be 165 feet, as measured from the ground elevation to the top
of the tip of the blade in the vertical position.
(4)
Number of towers and wind turbines allowed per lot: There shall only
be allowed a maximum of two wind towers and two wind turbines per
lot or parcel of land.
(5)
The power produced from an NCWECS shall only be used for on-site
consumption (except for net metering purposes).
(6)
NCWECS shall only be located to the rear of any dwelling.
(8)
Color and finish:
(a)
Wind turbines and towers shall be painted an unobtrusive (e.g.,
light environmental color such as white, gray, or beige) color that
is nonreflective; and
(b)
The design of NCWECS buildings and related structures shall,
to the extent reasonably possible, use materials, colors, textures,
screening, and landscaping that will blend the facility to the natural
setting and the existing environment.
(9)
Lighting: Exterior lighting on any structure associated with the
system shall not be allowed except that which is specifically required
by the FAA or required by Mercy Flight (and approved by the Town of
Hartland Planning Board).
(10)
Compliance with regulatory agencies: The applicant is required
to obtain all necessary regulatory approvals and permits from all
federal, state, county, and local agencies having jurisdiction and
approval related to the completion of an NCWECS.
(11)
Safety and security requirements:
(a)
Safety shutdown: Each NCWECS shall be equipped with both manual
and automatic controls to limit the rotational speed of the blade
within the design limits of the wind turbine. Manual electrical and/or
over-speed shutdown disconnect switches shall be provided and clearly
labeled on the NCWECS. No wind turbine shall be permitted that lacks
an automatic braking, governing, or feathering system to prevent uncontrolled
rotation, over-speeding, and excessive pressure on the tower structure,
rotor blades, and wind turbine components;
(b)
All structures which may be charged with lightning shall be
grounded according to applicable electrical code;
(c)
The blade tip of any wind turbine shall, at its lowest point,
have ground clearance of not less than 30 feet;
(d)
Wind turbine towers shall not be climbable up to 15 feet above
ground level;
(e)
All access doors to NCWECS structures and electrical equipment
shall be lockable and shall remain locked at all times when operator
personnel are not present;
(f)
Anchor points for any guy wires for a system tower shall be
located with the property that the system is located on and not on
or across any aboveground electric transmission or distribution lines.
The point of attachment for the guy wires shall be enclosed by a fence
six feet high or sheathed in bright orange or yellow covering to eight
feet above the ground. The minimum setback for the guy wire anchors
shall be 20 feet from the property boundary; and
(g)
Appropriate warning signage shall be placed on wind turbine
towers and electrical equipment. Signage shall also include one twenty-four-hour
emergency contact number to the owner of the wind turbine as well
as signage warning of electrical shock or high voltage and harm from
revolving machinery.
(12)
(13)
Impact on wildlife species and habitat:
(14)
Interference with residential television, microwave, and radio
reception:
(a)
The applicant must submit information that the proposed construction
of an NCWECS will not cause interference with microwave transmissions,
cellular transmissions, residential television interference, or radio
reception of domestic or foreign signals; and
(b)
The applicant shall include specific measures proposed to prevent
interference, a complaint procedure, and specific measures proposed
to mitigate interference impacts.
(16)
Bond: A bond or other appropriate form of security may be required
to cover the cost of the removal and site restoration.
(17)
Erosion control:
(a)
If required by the Planning Board, before the Town of Hartland
shall issue a grading or building permit for an NCWECS, the applicant
shall submit an erosion control plan to the Engineering Department
for its review and approval; and
(b)
The plan shall minimize the potential adverse impacts on wetlands
and Class I and II streams and the banks and vegetation along those
streams and wetlands and minimize erosion or sedimentation.
(18)
Certification:
(a)
The foundation, tower, wind turbine, and compatibility of the
tower with related equipment shall be certified in writing by a structural
engineer registered in New York State. The engineer shall certify
compliance with good engineering practices and compliance with the
appropriate provisions of the Uniform Construction Code that have
been adopted in New York State;
(b)
After completion of the NCWECS, the applicant shall provide
a post-construction certification from a licensed professional engineer
registered in the State of New York that the project complies with
applicable codes and industry practices and has been completed according
to the design plans;
(c)
The electrical system shall be certified in writing by an engineer
registered in New York. The engineer shall certify compliance with
good engineering practices and with the appropriate provisions of
the Electric Code that have been adopted by New York State;
(d)
The wind turbine over-speed control system shall be certified
by an engineer registered in New York State; and
(e)
Certificate of completion must be supplied by the applicant
and approved by the Town of Hartland Code Enforcement Officer, prior
to the issuance of a certificate of occupancy.
G.
Maintenance, procedures, and fees.
(1)
Time limit on completion. After approval of an NCWECS, the building
permit shall be obtained within six months and the project shall be
completed within 12 months. If not constructed, the special permit
shall automatically lapse within 12 months after the date of approval
by the Town of Hartland Planning Board.
(2)
Inspections. Upon reasonable notice, Town of Hartland Code Enforcement
officials or their designated representatives may enter a lot on which
an NCWECS special permit has been granted for the purpose of compliance
with any permit requirements. The Building Inspector may require the
owner to have a licensed engineer inspect and report on the NCWECS
when he determines it necessary to guarantee the safety and proper
operation of the NCWECS.
(3)
General complaint process. During construction, the Town Building
Inspector can issue a stop order at any time for any violations of
the special permit. After construction is complete, the permit holder
shall establish a contact person, including name and phone number,
for receipt of any complaint concerning any permit requirements. Upon
receipt of any complaint from the Town of Hartland Code Enforcement
Officer, the permit holder/contact person shall have seven working
days to reply to the Town in writing before any determination or decision
is made by the Building Inspector.
(4)
Continued operation. An NCWECS 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. Further, the Building Inspector shall
also have the right to request documentation from the owner for the
NCWECS regarding the NCWECS's usage at any time.
(5)
Removal. At the cost of the owner, all NCWECS facilities, including,
but, not limited to, towers, blades, and accessory structures, shall
be dismantled and removed immediately from the site when the permit
has been revoked by the Town of Hartland Planning Board or the NCWECS
has been deemed inoperative or not operating by the Building Inspector
for a period of more than 180 days or revocation of the special use
permit. If the owner does not dismantle and remove said NCWECS facility
as required, the Town Board may, after a hearing at which the owner
shall be given an opportunity to be heard and present evidence, dismantle
and remove said facility and place the cost of removal as a tax lien
on said parcel and may recover the cost of the removal from the owner.
This remedy is in addition to and not in lieu of any other enforcement
remedy available to the Town.
(6)
Determination of abandonment or inoperability. A determination of
the abandonment or inoperability or non-operation of an NCWECS shall
be made by the Town Building Inspector, who shall provide the owner
with written notice by personal service or certified mail. Any appeal
by the owner of the Building Inspector's determination of abandonment
or inoperability or non-operation shall be filed with the Town of
Hartland Zoning Board of Appeals within 30 days of the Building Inspector
causing personal service or mailing certified mail his written determination
and the Board shall hold a hearing on same. The filing of an appeal
does not stay the following time frame unless the Zoning Board of
Appeals or a court of competent jurisdiction grants a stay or reverses
said determination. At the earlier of 181 days from the date of determination
of abandonment or inoperability without reactivation or upon completion
of dismantling and removal, any special permit and/or variance approvals
for the NCWECS shall automatically expire.
(7)
Special permit term. Special permits granted pursuant to this section
may be limited in duration by the Town of Hartland Planning Board.
(8)
Application and annual fees. Applicant shall pay an initial application
fee of $500, or such other amount as the Town Board may, from time
to time, determine by resolution, upon filing its application to cover
the cost of processing and reviewing the application.
(9)
Prior to the issuance of a building permit, the applicant shall document
that all applicable federal, state, county, and local permits have
been obtained.
(10)
Special permits granted under this section shall be issued only
following a public hearing held as required by the Town Zoning Law.
(11)
The Planning Board may grant the special permit, deny the special
permit, or grant the special permit with written stated conditions.
Denial of the special permit shall be by written decision based upon
substantial evidence considered by the Board. Upon issuance of the
special permit, the applicant shall obtain a building permit for each
NCWECS.
(12)
Any changes or alterations post construction to an NCWECS shall
be done only by amendment to the special permit and subject to all
requirements of this Code.
(13)
In addition to the requirements of this section, the special
permit application shall be subject to any other site plan approval
requirements set forth in the Zoning Law.
H.
Permit revocation. If the applicant violates any of the conditions
of its permit or violates any other local, state or federal laws,
rules or regulations, this shall be grounds for revocation of the
special permit. Revocation may occur after the applicant is notified
in writing of the violations and the Town of Hartland Planning Board
holds a hearing on same.
I.
Interpretation; conflict with other laws. In their interpretation
and application, the provisions of this section shall be held to be
minimum requirements, adopted for the promotion of the public health,
safety and general welfare. It is not intended to interfere with,
abrogate, or annul other rules, regulations or laws, provided that
whenever the requirements of this section are at a variance with the
requirements of any other lawfully adopted regulations, rules or laws,
the most restrictive, or those which impose the highest standards,
shall govern.
J.
Severability. If any section, subsection, phrase, sentence, or other
portion of this section is for any reason held invalid, void, unconstitutional,
or unenforceable by any court of competent jurisdiction, such portion
shall be deemed a separate, distinct, and independent provision, and
such holding shall not affect the validity of the remaining portions
hereof.
[Added 3-15-2017 by L.L.
No. 2-2017]
A.
Purposes. The Town Board of the Town of Hartland adopts this section
to regulate the placement of commercial and industrial wind energy
conversion systems to protect the public safety health and welfare;
to provide a regulatory structure that promotes the protection of
the Town of Hartland residents; to minimize the adverse impacts on
the Town's character and environment and economy and property values;
to minimize negative impacts on the unique resources including, but
not limited to, the Seaway Trail, the Lake Ontario shoreline corridor
and adjacent lands and waterways; the residential and farming communities
of the Town.
B.
Authority. The Town Board of the Town of Hartland, enacts this section
under the authority granted by:
(2)
New York Statute of Local Governments, § 10(1), (6) and
(7).
(3)
New York Municipal Home Rule Law, § 10(1)(i) and (ii) and
§ 10(1)(a)(6), (11), (12) and (14).
(4)
The supersession authority of New York Municipal Home Rule Law, § 10(2)
(d) (3), specifically as it relates to determining which body shall
have power to grant variances under this section, and what variances
may be granted to the extent such grant of power is different than
under Town Law § 267 and § 274-b, and as it relates
to the power of the Town Board to regulate land use within the Town
to the extent the provisions of this section differ from the authority
granted to the Town by Article 16 of the Town Law.
(5)
New York Town Law, Article 16 (Zoning).
(6)
New York Town Law § 130(1) (Building Code), (3) (Electrical
Code), (5) (Fire Prevention), (7) (Use of Streets and Highways), (7-a)
(Location of Driveways), (11) (Peace, Good Order and Safety), (15)
(Promotion of Public Welfare), (15-a) (Excavated Lands), (16) (Unsafe
Buildings), (19) (Trespass), and (25) (Building lines).
(7)
New York Town Law § 64(17-a) (Protection of Aesthetic Interests),
(23) (General powers).
(8)
New York Real Property Tax Law § 487.
(9)
Police Powers of the Town of Hartland; Laws of the State of New York.
C.
Findings. The Town Board of the Town of Hartland makes the following
findings:
(1)
Short-sighted planning has often resulted in creation of problem industries which adversely affect public health and quality of life. Examples are found in Hartland, as well as many other areas of New York State, where abandoned buildings and brownfields exist, health has been adversely affected, pollution has been proliferated, quality of life has been diminished, aesthetics have been compromised and community character has been degraded. Commercial wind energy facilities are not exempt from these problems and careful siting and protections are of paramount importance. Local communities have, through zoning, site plan approval, regulation and careful planning been primary protectors of their citizenry. This section will contribute to this effort. The existence of Article X of the Public Service Law does not negate this responsibility, and in fact recognizes it. Further, Article X remains untested by judicial review addressing several potential legal issues. This section is not unduly burdensome to the mandates or the process set forth in Article X, but is rather compatible with them.
(2)
The findings set forth in this section are cumulative and interactive,
and shall be liberally interpreted in conjunction, one with another.
(3)
Commercial/industrial wind energy facilities have increased significantly
in number, and can potentially be sited without sufficient regard
to their impact on the health, welfare and safety of residents, especially
in small rural communities.
(4)
Commercial/industrial wind energy facilities should benefit the residents
of the local areas where they are sited.
(5)
Commercial/industrial wind energy facilities are, by their very nature
not aesthetically pleasing, due their height, disruption of views
and skylines, especially in rural flat landed communities without
many high structures.
(6)
The Town of Hartland is a rural community devoid of large hills and
consists of mostly flat terrain.
(7)
The Town of Hartland is an agricultural community supporting varied
agricultural uses and is in the heart of Western New York's fruit
growing region, grain and dairy.
(8)
The Town of Hartland has very few tall structures.
(9)
The Town of Hartland is bordered on the north, south, east and west
by Towns which share Hartland's agricultural and rural residential
character, and are similarly low, flat areas.
(10)
The only other municipality in the Town of Hartland is the Village
of Middleport, which is a small Village bedroom community, and which
is also part of the rural, residential community devoid of high structures.
(11)
Commercial/industrial wind energy facilities represent potential
for extreme adverse aesthetic impacts due to their height as well
as other affects.
(12)
The Town of Hartland is located on a major migration route for
many species of birds, and is habitat for many species, both year
round and seasonal.
(13)
The bat population in the Town of Hartland is important and
in distress.
(14)
Commercial/industrial wind energy facilities are known to pose
danger to birds and bats, and have been demonstrated to kill numerous
members of both species annually.
(15)
Commercial/industrial wind energy facilities can cause danger
to humans and animals, including livestock resulting from ice throw.
(16)
If not properly regulated, installation of commercial/industrial
wind energy facilities can create drainage problems through erosion,
lack of sediment control for facility and access road sites, and can
harm farmland through improper construction methods.
(17)
Commercial/industrial wind energy facilities, when improperly
sited, are known to adversely affect property values, and cause economic
hardship to property owners.
(18)
The Town of Hartland contains clusters and stretches of homes,
in and around the Village of Middleport, Johnson Creek, Hartland Corners,
Ridge Road Corridor, as well as disbursed residences which residents
have chosen as their homes, often because of a love for rural pastoral
lifestyle.
(19)
Town of Hartland residents and visitors enjoy outdoor activities,
including hunting, hiking, cycling, snowmobiling, jogging, etc., all
of which are potentially adversely affected by presence of commercial/industrial
wind energy facilities.
(20)
Commercial/industrial wind energy facilities may be significant
sources of noise, including infrasound that, if unregulated, can negatively
affect quiet enjoyment of the area, properties, and health and quality
of life of residents.
(21)
Construction of wind facilities can create traffic problems
and can cause damage to local roads and infrastructure.
(22)
Commercial/industrial wind energy facilities have the potential
to cause electromagnetic interference with various types of communications.
(23)
Commercial/industrial wind energy facilities have the potential
to adversely interfere with orderly development of the Town of Hartland,
including single-family residences and small subdivisions by making
such development unappealing.
(24)
Commercial/industrial wind energy facilities need to be regulated
for removal when no longer utilized.
(25)
Commercial/industrial wind energy facilities provide renewable
energy. Their viability is highly dependent on state and federal subsidies,
and renewable energy companies are subject to economic pressure and
potential bankruptcies. Funding and mechanism for removal when no
longer operating need to be in place.
(26)
In formulation of this section, many studies have been reviewed
and taken into consideration. Wind energy laws in other locations
have been reviewed and considered; experiences of other areas have
been studied; the Town of Hartland Comprehensive Plan has been considered
and complied with.
(27)
When considering large-scale construction and maintenance, due
weight should be given to the following:
(a)
The relative distress caused to a community and its residents;
(b)
The actual necessity for such facility given energy production
in the area and region, including clean energy production;
(c)
Past and present stresses and disruption imposed upon an area
due to all types of energy production;
(d)
Alternatives to facilities, including location in other areas,
location in areas where demand is needed, alternative methods of producing
clean energy;
(e)
Location in areas of highest consumption;
(f)
Burden on a community and its residents versus reward to community
and its residents, with emphasis upon quality of life.
D.
Definitions.
(1)
As used in this section, the following definitions apply. If any definition herein conflicts with a definition found elsewhere in the Town Code, the definitions set forth here apply. If not defined in this section, the definitions as set forth in § 144-4 shall apply.
(2)
AMBIENT SOUND
ANSI
APPLICANT
BACKGROUND SOUND
dBA
DBC
DECIBEL
EAF
NONPARTICIPANT
PARTICIPANT
PERSON
QUALIFIED ACOUSTICAL CONSULTANT
RESIDENCE
ROTOR DIAMETER
SECTION or THIS SECTION
SEQRA
SETBACKS
SHADOW FLICKER
SITE
SOUND PRESSURE LEVEL
SPECIAL USE PERMIT
TOTAL HEIGHT
TOWER HEIGHT
WIND ENERGY CONVERSION SYSTEM (WECS) or WIND ENERGY CONVERSION
FACILITY
As used in this section, the following terms shall have the meanings
indicated:
Ambient sound encompasses all sound present in a given environment,
being usually a composite of sounds from many sources near and far.
It includes intermittent noise events, such as, from aircraft flying
over, dogs barking, wind gusts, mobile farm or construction machinery,
and the occasional vehicle traveling along a nearby road. The ambient
sound also includes insect and other nearby sounds from birds and
animals or people. The nearby and transient events are part of the
ambient sound environment but are not to be considered part of the
long-term background sound.
Refers to or means the American National Standards Institute.
The person or entity filing an application and seeking license
under this section; the owner of a WECS or a proposed project; the
operator of a WECS or proposed project; any person acting on behalf
of an applicant, WECS project or proposed WECS. Whenever the term
"applicant" or "owner" or "operator" are used in this section. Said
term shall include any person acting as an applicant, owner or operator.
Background sounds are those heard during lulls in the ambient
sound environment and represent the quietest 10% of the time: for
example, the quietest one minute.
A weighted sound pressure level. A measure of overall sound
pressure level designed to reflect the response of the human ear,
which does not respond equally to all frequencies. It is used to describe
sound in a manner representative of the human ear's response. It reduces
the effects of the low with respect to the frequencies centered around
1,000 Hz. The resultant sound level is said to be "weighted" and the
units are "dBA." Sound level meters have an A-weighting network for
measuring A-weighted sound levels (dBA) meeting the characteristics
and weighting specified in ANSI Specifications for Integrating Averaging
Sound Level Meters, 51.43-1997, for Type 1 instruments and be capable
of accurate readings (corrections for internal noise and microphone
response permitted) at 20 dBA or lower. In this section, dBA means
LAeq unless specified otherwise.
C-weighted sound pressure level. Similar in concept to the
A-weighted sound level (dBA), but C-weighting does not deemphasize
the frequencies below 1,000 Hz as A-weighting does. It is used for
measurements that must include the contribution of low frequencies
in a single number representing the entire frequency spectrum. Sound
level meters have a C-weighting network for measuring C-weighted sound
levels (dBC) meeting the characteristics and weighting specified in
ANSI SI. 43-1997 Specifications for Integrating Averaging Sound Level
Meters for Type 1 instruments. In this section, dBC means L unless
specified otherwise.
A dimensionless unit describing the amplitude of sound and
denoting the ratio between two quantities that are proportional to
power, energy, or intensity. One of these quantities is equal to 20
times the logarithm to the base 10 of the ratio of the measured pressure
to the reference pressure, which is 20 microparscals.
Environmental Assessment Form used in the implementation
of the SEQRA as that term is defined in Part 617 of Title 6 of the
New York Codes, Rules, and Regulations.
Any and all Hartland landowners having no contractual relationship
with a wind developer.
Any and all landowners having a signed lease, easement, or
good neighbor agreement with a wind developer.
Any person, partnership, LLC, corporation, joint venture,
trust or other entity.
A person with demonstrated competence in the specialty of
community noise testing who is a person with full membership in the
Institute of Noise Control Engineers (INCE).
Any building suitable for habitation in the Town of Hartland
on the date an application for a wind energy facility permit is received.
A residence may be part of a multi-dwelling or multipurpose building,
and shall include buildings such as hunting camps, seasonal residences,
hotels, hospitals, motels, dormitories, nursing homes, schools churches
or buildings used for educational purposes, or public gatherings.
The diameter of the largest swept area of a rotating turbine
blade.
Unless otherwise identified, § 144-19 and its subsections.
The New York State Environmental Quality Review Act and its
implementing regulations in Title 6 of the New York Codes, Rules and
Regulations, Part 617.
A distance measured from the closest right-of-way line of
the road right-of-way, property lines, village limits, edge of wetlands,
edge of streambed, closest point of residence foundation to the base
of the turbine or measurement tower, zoning districts, or other point
or line of reference.
The visual effect of viewing the moving shadow of the wind
energy conversion system (WECS) rotor blades when they are in a position
between the receptor (person viewing them) and the sun and/or the
"strobe" lighting effect of this condition as perceived by the receptor
whether directly or indirectly (as in a reflection off a light-colored
wall).
The minimum area necessary for a wind energy facility to
satisfy the required setbacks and any other standards in this section.
The site may be publicly or privately owned by an individual or a
group of individuals controlling single or adjacent properties. Where
an individual or group of individuals own or control adjacent properties,
those properties may be combined for the purposes of this section
through an easement or other legally enforceable agreement recorded
in the real property records in the Niagara County Clerk's Office.
The agreement must, at a minimum, describe all lands that may be impacted
if the WECS fell and must remain in effect as long as the WECS is
in place. Where multiple adjacent lots are in single ownership or
are combined through such agreement, such multiple or combined lots
shall together be considered the "site".
The level, expressed in decibels, which is equaled or exceeded
a stated percentage of time. Sound pressure level is spectrally weighted
to correspond to a spectrum of interest. For example, the A-weighted
decibel scale (dBA) represents those frequencies most readily audible
to the human ear. The C-weighted decibel scale (dBC) approximates
response of the human ear to low-frequency sounds. The G-weighted
decibel scale (dBG) is designed for infrasound. Sound measurements
shall use sound meters that meet the American National Standard Institute
Specifications for Integrating Averaging Sound Level Meters, SI. 43-1997,
for Type I instruments and be capable of accurate readings (corrections
for interval noise and microphone response permitted) at 20 dBA or
lower.
A construction and operating permit granted in accordance
with the provisions of this section.
The height of the tower from the finished ground elevation
to the furthest vertical extension of the turbine rotor plane.
The height of the tower from the finished ground elevation
at the tower base to the center of the hub forming the attachment
point for turbine blades.
Any machine or wind facility that converts the kinetic energy
in the wind into electricity, including all related infrastructure,
electrical lines and substations, access roads and accessory structures,
also known as a commercial/industrial wind energy conversion system.
Excluded from the definition are noncommercial wind energy conversion
systems having a height of 165 feet or less.
E.
Applicability; severability.
(1)
No wind facility or wind energy conversion system shall be constructed,
reconstructed, modified or operated in the Town of Hartland, except
in compliance with this section, and in compliance with all conditions
of approval established by the Town Board.
(2)
If any provision of this section conflicts with any other provision
of the Town of Hartland Code, provisions of this section shall apply.
(3)
If any provision, section or requirement of this section shall be
finally determined not to apply, or to be unenforceable or void, by
any court, state or federal agency having authority to so determine,
it shall not affect the validity or enforceability of this section
as a whole or any other part thereof.
(4)
Nothing in this section shall prevent the ability of the Town of
Hartland to appeal or seek court determination of any action by any
agency, tribunal, or lower court.
F.
Applications for wind energy conversion systems.
(1)
An application for special use permit for a wind energy facility
or a single WECS shall include the following:
(a)
Name, address, 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.
(b)
Name and address of the property owner. If the property owner
is not the applicant, the application shall include proof of site
control by recorded document establishing that applicant is authorized
to utilize the property for the intended purpose.
(c)
Address, or other property identification, of each proposed
WECS location, including Tax Map section, block and lot number, latitude
and longitude coordinates.
(d)
A description of the project, including the number and maximum
rated power output capacity of each WECS.
(e)
For each WECS proposed, a plot plan prepared by a licensed surveyor
or engineer drawn in sufficient detail to clearly describe the following:
[1]
Property lines and physical dimensions of the site;
[2]
Location, approximate dimensions and types of existing structures
and uses on site, public roads, and adjoining properties within a
three-thousand-foot radius of the proposed WECS.
[3]
Location and ground elevation of each proposed WECS.
[4]
Location of all above and below ground utility lines on the
site, and all related transformers, power lines, interconnection point
with transmission lines, and other ancillary facilities or structures.
[5]
Location and size of structures above 35 feet within a three-thousand-foot
radius of any proposed WECS. For purposes of this requirement, electrical
transmission and distribution lines, antennas and slender or open
lattice towers are considered structures.
[6]
Location of and measured distances (accurate GPS measurements
may be utilized) of each proposed WECS tower from every setback required
pursuant to this section.
[7]
To help demonstrate compliance with the setback requirements
of this section, circles drawn around each proposed tower site having
a radius equal to:
[8]
All proposed facilities, including access roads, electrical
lines, substations, storage or maintenance units, and fencing.
[9]
The names and addresses of all property owners within a three-thousand-foot
radius of each WECS, as shown on the assessment roll of the Town of
Hartland, together with the current use of all such property.
(f)
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.
(g)
Landscaping plan: depicting vegetation and forest cover describing
the area to be cleared of vegetation and forest cover and areas where
vegetation and forest cover shall be added, identified by species
and size of specimens at installation, and their locations.
(h)
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, the application shall so
state and such determination shall be submitted prior to final approval.
(i)
Decommissioning plan: A decommissioning plan as specified in
this section.
(j)
Complaint resolution plan: A complaint resolution plan to address
complaints within 24 hours of receipt of notice thereof and to resolve
any complaint in a diligent and timely manner under the circumstances.
(k)
Information relating to the construction/installation of the
wind energy facility as follows:
(l)
Completed Part 1 of the full EAF.
(m)
For each proposed WECS, include make, model, picture, and manufacturer's
specifications, including noise decibels data. Include manufacturers'
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.
(n)
As part of the application, or as a supplement to the application, simultaneously submitted, the following: Each submittal shall contain a thorough analysis/explanation of the ability and means to comply with the "Standards for commercial/industrial WECS," Subsection H of this section.
[1]
Shadow flicker: The applicant shall submit a study on potential
shadow flicker. The study shall identify locations where shadow flicker
may be caused by the WECS and the expected durations of the flicker
at these locations. The study shall identify areas where shadow flicker
may be present at locations of any residences, highways, parks or
open recreation areas and detail measures that will be taken to mitigate
or eliminate such interference and to comply with the requirements
of this section.
[2]
Visual Impact: Applications shall include a visual impact study
of the proposed WECS as installed, which shall include a computerized
photographic simulation, demonstrating any visual impacts from strategic
vantage points. Color photographs of the proposed site from at least
several 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.
[3]
Fire Protection/Emergency Response Plan: A fire protection and
emergency response plan, created in consultation with the fire department(s)
having jurisdiction over the proposed wind energy facility to address
coordination with local emergency/fire protection providers during
the construction or operation phase in the event of an emergency,
fire or other hazard.
[4]
Noise analysis/study: A noise analysis by a qualified acoustical consultant documenting the noise levels associated with each proposed WECS. The study shall document noise levels at property lines and at the property line of the nearest residences not on the site for each residence in a 360° circle of the site. The noise analysis shall be performed according to the International Standard for Acoustic Noise Measurement Techniques for Wind Generators (IEC 61400-11), or other procedure accepted by the Town Board, and shall include both a dBA analysis and dBC analysis. The noise analysis/study shall demonstrate compliance with the noise provisions as set forth in the "Standards for commercial/industrial wecs," Subsection H of this section.
[5]
Property value analysis: Property value analysis prepared by a New-York-State-licensed appraiser experienced in appraising rural properties of the type and nature typically found in the Town of Hartland evaluating the potential impact of the project on values of properties in the Town of Hartland, and in addition a proposed means to protect property owners from decrease in values caused by the establishment and operation of the proposed WECS, and to comply with the property value preservation subsection set forth in the "Standards for commercial/industrial wecs," Subsection H of this section.
[6]
Electromagnetic interference: An assessment of potential electromagnetic
interference with microwave, radio, television, satellite systems,
personal communication systems and other wireless communication, including
broadband, weather and other radar, identifying specific potential
interference established systems.
[7]
Transportation impacts: An analysis of impacts on local transportation
identifying impacts anticipated during construction, reconstruction,
modification, or operation of each 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. Local roads shall include
all state highways, county highways, Town highways, and village streets
and highways, which will be or may be used by the applicant.
[8]
Transportation plan: A transportation plan describing routes
to be used in delivery of project components, equipment and building
materials, and those to be used to provide access to the site during
and after construction. Such plan shall also describe any anticipated
improvements to existing roads, bridges or other infrastructure, and
measures to restore damaged/disturbed access routes and all other
infrastructure following construction. Roads shall include all state
highways, county highways, Town highways, and village streets and
highways, which will be or may be used by the applicant.
[9]
Ground water impacts: An analysis of impacts on local groundwater
resources shall be prepared, regarding impacts anticipated during
construction, reconstruction, modification, or operation decommissioning
and post decommissioning of each WECS. A geotechnical report shall
be provided and shall include: soil and geologic characteristics of
the site based on site sampling and testing, a bedrock profile within
one mile of the site, information on depth of well, average flow rate,
and with permission by owner, test of water equality for all wells
within two miles of the site, grading criteria for ground preparation,
cuts and fills, soil compaction, and a slope stability analysis.
[10]
An assessment of potential immediate and long-term
impacts to local flora and fauna, micro and macro habitats, and ground
and surface water related, but not limited to, excavation, blasting,
clear-cutting and grading during the site preparation phase.
[11]
Cultural, historical and archeological resources
plan: An analysis of impacts on cultural, historical and archeological
resources addressing and assessing impacts anticipated during construction,
reconstruction, modification or operation of each WECS. This assessment
shall be conducted in accordance with standards of the New York State
Office of Parks, Recreation and Historic Preservation.
[12]
Wildlife impacts: An analysis of impacts on local
wildlife shall be prepared, addressing impacts anticipated during
construction, reconstruction, modification, or operation of each 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. An assessment of the impact of
the proposed development on the local flora and fauna. The analysis
will include migratory and resident avian species and bat species.
The scope of such assessment shall take into consideration New York
State Department of Environmental Conservation and the United States
Fish and Wildlife Service studies, standards and recommendations and
must at a minimum consist of pre-construction data of three years,
and literature/studies/survey for threatened and endangered and species
of concern and migratory species that provide relevant information
on critical flyways and migration routes, and shall describe the potential
impacts of any proposed facilities on bird and bat species, and an
avoidance or mitigation plan to address any impacts, as well as plans
for three-year post-installation studies. The reports shall provide
sufficient information to allow the Town Board to make a determination
on any mitigation conditions or a denial of permits as provided in
standards for commercial/industrial WECS section.[1]
[13]
Maintenance plan providing for regular periodic
wind energy facility schedules, any special maintenance requirements
and procedures and notification requirements for restarts during icing
events.
[14]
Blade throw report: A report from a New York State
professional engineer that calculates the maximum distance that ice
from the turbine blades and pieces of turbine blade may be thrown.
(The basis of the calculation and all assumptions must be thoroughly
explained and justified.) The frequency incidence of reported ice
and blade throws and the conditions at the time of the ice and blade
throw must be included and the report must specifically address the
climatic and weather conditions found in the Town of Hartland.
[15]
Stray voltage report: An assessment, pre- and
post-installation, of possible stray voltage problems on the site
and neighboring properties within one mile of the project boundary
to show what properties need upgraded wiring and grounding.
[16]
A health report utilizing available background
health, including mental health, analysis for the Town, and the region
including age, proliferation of known health disorders; effects of
noise presence of WECS and flicker effect on people, as well as a
proposed means of accessing a health background on individuals who
wish to participate for determination of health effects if a WECS
is constructed. A thorough analysis of the potential health effects,
including mental health related to commercial/industrial wind turbines,
and a plan to mitigate each affects and to address them.
[17]
An agriculture effect report, including impacts
on all types of agricultural activities present in the Town of Hartland.
The report shall address effect of wind turbulence and disruption
on fruit production, effect on beef and dairy farms, grain farming
and all other farming activities. The report must address insect and
bee population effects, effects on orchard and crop pollination, microclimate
effects and impacts on orchard and crop growing seasons.
[18]
A report/analysis of the effects on the economy
of the Town, including income of residents and effects on other industries
and jobs.
[19]
A report and analysis on any effect on any military
installation in the County of Niagara, including the Niagara Falls
Air Reserve Station, its potential effects on flight patterns, its
potential to cause radar interference, effect on base siting evaluations,
the potential economic effect on the County of Niagara should the
base be closed, including job loss and economic impact.
[20]
A report and analysis on any outdoor activities
common in the Town of Hartland, including hunting, hiking, biking,
etc.
[21]
A complete report on:
[a]
The need for the project including demand analysis,
limitations on transport of power to high demand areas.
[b]
Other "clean" energy power projects in the area,
including the Niagara Power Project, with analysis of total clean
power generated in Niagara County versus other areas in the state.
[c]
The effect on Route 104 (Ridge Road), a historic
highway.
[d]
Increase expenses imposed upon the Town of Hartland
as a result of the proposed project.
[e]
All alternative sites identified by the applicant
and its affected entities.
[f]
Local power needs in the Town of Hartland and total
power generated.
[g]
Total disruption/burden placed upon the Town of
Hartland for all power generation activities, including existing facilities
and infrastructure. Compare to other areas of the state; use population/energy
usage per capita verses total energy burden.
[h]
For any requirement of a report, analysis or study, required pursuant to this Subsection F(1)(n) or required by any other provision of this section, or by the Town Board in its review process, the Town may require an expanded or supplemental report or study by the applicant, or an independent study, analysis or report by a consultant of the Board's choosing. Applicant shall be responsible for the cost of any review/report study or analysis commissioned by the applicant, to be paid for from the escrow fund established pursuant to this section.
[i]
The applicant shall, prior to the receipt of a
special use permit, provide proof that it has executed an interconnection
agreement with the New York independent system operator and the applicable
transmission owner. Applicant shall also provide proof of complying
with Public Service Commission power purchase requirements.
[j]
A statement, signed under penalties of perjury
that the information contained in the application is true and accurate
to the best of applicant's knowledge.
[k]
Proof of continuous liability insurance in the
amount of $5,000,000 per occurrence with a total policy minimum of
$10,000,000 per year. This shall be submitted to the Town of Hartland
indicating coverage for potential damages or injury to landowners
and the public.
[l]
Disclosure of financial interests. For any financial
interest held by a Municipal Officer or his or her relative in any
wind development company or its assets within three years prior to
the date of an application for a permit under this section, the wind
company shall disclose the application the municipal officer or his
or her relative, and the nature and scope of the financial interest
of each person.
[m]
All wind speed data obtained by applicant from
any wind measurement tower in the Town, including explanation of methodology
utilized to obtain measurements.
[n]
The applicant shall fund an escrow as required
by this section to cover the amount by which the Town's cost to review
the applicant's application, including the cost of any independent
study, analysis or report and the cost of the Town Engineer exceed
the application fees paid by the applicant. The applicant and the
Town may enter into an agreement as to the amount of the escrow. If
no agreement is reached prior to review, the fund shall be 1.5% of
the total estimated cost of the project, including both "hard" and
"soft" costs, approvals, etc. The amounts paid to the Town shall not
exceed this amount. This amount is determined to be the best estimate
of all costs to the Town for its review process as set forth in this
section. The escrow shall be funded prior to review of the application.
If at the end of the review process, and decision on the application
by the Town Board, funds remain in the escrow fund, the balance shall
be returned to the applicant together with an accounting of the expenditures
incurred by the Town.
[o]
Copies of all applications and proposed plans should
be made available to the public within seven days of receipt by the
Town Board and placed in the Town Library and Town Clerk's office
as well as on the Town of Hartland website.
G.
Application review process.
(1)
Applicants may request a preapplication meeting with the Town Supervisor,
Town Code/Zoning Enforcement Officer and such consultants as the Supervisor
shall determine. Such meeting shall be informal, and no party shall
be bound by any statements made.
(2)
An original executed and 15 copies of the application and a complete
digital version shall be submitted to the Town Clerk. Payment of all
application fees shall be made at the time of application submission.
The Town Clerk shall forward one copy to the Code/Zoning Enforcement
Officer and five copies to the Town Supervisor and additional copies
to such individuals as the Supervisor shall direct.
(3)
The Code/Zoning Enforcement Officer, in consultation with the Town
Engineer and any other consultants deemed necessary, shall determine
whether the application is complete. If the application is deemed
incomplete, the Town Code/Zoning Enforcement Officer 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 WECS proposed is increased. When the application is
complete, it shall be filed and the applicant shall be notified it
has been accepted for filing.
(4)
Upon filing of a complete application, the Town Clerk shall transmit
the application to the Board.
(5)
In addition to the public hearing requirement, the Town Board may
in its discretion require the applicant to conduct information sessions
for the public benefit. The number of such sessions shall be at the
discretion of the Town Board and notice shall be given to media in
such a manner as the Town Board shall determine. During these sessions,
the public will be afforded the opportunity to question the applicant
regarding the project.
(6)
The Town Board shall hold at least one formal public hearing on the
application. Notice shall be published in the Town's official newspaper,
no less than 10 days before the hearing. In the event any hearing
is adjourned by the Board to hear additional comments, no further
publication or mailing shall be required. Notice shall also be given
to property owners in the Town of Hartland at the address shown on
the assessment roll of the Town of Hartland, or by publishing such
notice in the Town's newsletter.
(7)
At the discretion of the Town Board, the public hearing may be combined
with public hearings on any Environmental Impact Statement. Notice
for SEQRA public hearings must meet the specification set out in 6
N.Y.C.R.R. § 617.12(c).
(9)
SEQRA review. Applications for commercial/industrial WECS are deemed
Type I projects under SEQRA. The Town Board may conduct its SEQRA
review in conjunction with other agencies or communities, in which
case the records of review by said agencies or communities shall be
part of the record of the Town Board's proceedings. The applicant
shall be responsible for the Town's legal and engineer's fees in connection
with the SEQRA.
(10)
After a thorough and detailed evaluation of the application
in which the Town Board completes the required "hard look" of all
materials and public input and upon receipt of the report of the recommendation
of the County Planning Board (where applicable), the holding of the
public hearing, and the completion of the SEQRA process, the Town
Board shall approve, approve with conditions, or deny the application(s).
The Board shall issue a written decision with the reasons for approval,
conditions of approval or disapproval fully stated.
(11)
If approved, the Town Board will issue, to the applicant, a
special use permit for each WECS for the purpose of construction and
continued operation based on satisfaction of all conditions for said
permit. This authorizes the Code Enforcement Officer/Building Inspector
to issue a building permit for each WECS, upon compliance with the
Uniform Fire Prevention and Building Code and the other conditions
of this section.
(12)
The decision of the Town Board shall be filed within five business
days in the office of the Town Clerk and a copy mailed to the applicant
by first-class mail.
(13)
If any approved WECS is not substantially commenced within one
year of issuance of the permit, the special use permit shall expire.
H.
Standards for commercial/industrial WECS. The following restrictions
on location, standards and conditions shall apply to all commercial/industrial
WECS. Applications must demonstrate compliance with these standards.
(1)
Restricted areas:
(a)
No commercial/industrial wind energy systems shall be allowed
in any residential district (R-1, R-2, R-3, MH Districts), in the
Business (B District) or in the Recreational Use District (REC District).
(b)
No commercial/industrial wind energy systems shall be allowed
within the boundary areas of the Town of Hartland LWRP.
(2)
Setbacks. No commercial/industrial wind energy systems shall be allowed
within the following setbacks. If more than one setback applies, the
most restrictive setback shall prevail.
(a)
From restricted areas: a minimum of 1,500 feet from any residential
district boundary line (R-1, R-2, R-3 and MH Districts).
(b)
From structures: a minimum two times the total WECS height from
any building.
(c)
From property lines: A minimum two times the total WECS height
from any property line excluding adjoining lot lines of the project
participants. Such setbacks from property lines do not apply if the
application is accompanied by a legally enforceable agreement recorded
in the Niagara County Clerk's Office for a period of the life of the
permit, that the affected adjacent landowner(s) agree to the elimination
of the setback.
(d)
From public roads and highways: a minimum 1,500 feet or two
times the total WECS height from any public road or highway, whichever
is greater.
(e)
From aboveground transmission lines greater than 12 kilovolts:
a minimum two times the total WECS height from any aboveground transmission
line greater than 12 kilovolts.
(f)
From the boundary of the Village of Middleport: a minimum of
1/2 mile (2,640 feet).
(g)
From residences: a minimum of 2,000 feet.
(h)
From another commercial/industrial WECS turbine: a minimum of
2,000 feet.
(3)
All power transmission lines from the tower to any building or other
structure shall be located underground.
(4)
No television, radio or other communication antennas may be affixed
or otherwise made part of any commercial/industrial WECS, except pursuant
to the Town site Plan Review and Subdivision Law. Applications may
be jointly submitted for WECS under this section and telecommunications
facilities under the site Plan and Subdivision Law.
(5)
No advertising signs are allowed on any part of the wind energy facility,
including fencing and support structures.
(6)
Lighting of tower. No tower shall be lit except to comply with FAA
requirements. Motion-sensitive on-demand lighting is required. Minimum-security
lighting for ground level facilities shall be allowed as approved
on the site plan.
(7)
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. Individual
WECS shall be constructed using wind turbines whose appearance, with
respect to one another, so as 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.
(8)
No WECS shall be installed in any location where its proximity with
existing fixed broadcast, retransmission, or reception antenna for
radio, television, or wireless phone or other personal communication
systems will 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 up to and 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 special use permit for the specific WECS causing the interference.
(9)
All solid waste and hazardous waste and construction debris shall
be removed from the site and managed in a manner consistent with all
applicable rules and regulations.
(10)
WECS 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. The use of previously developed areas will be given
priority wherever possible. All topsoil disturbed during construction,
reconstruction or modification of each WECS will be stockpiled and
returned to the site upon completion of the activity, which disturbed
the soil.
(11)
WECS 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 United
States Fish and Wildlife Service as threatened or endangered. When
the Town Board determines that significant negative impacts have not
or cannot be sufficiently mitigated by a proposed WECS, no permit
may be issued.
(12)
WECS shall be located in a manner consistent with all applicable
state and federal wetlands laws and regulations.
(13)
Stormwater runoff and erosion control shall be managed in a
manner consistent with all applicable state and federal laws and regulations.
(14)
For all aspects of the application and operations of WECS, the
New York State Department of Agriculture and Markets guidelines for
agricultural mitigation for wind power projects in effect, as of the
date of the application, and any other agricultural effects identified
shall be mitigated shall be adhered to, both inside and outside of
agricultural districts.
(15)
The maximum total height of any WECS shall be determined by
application of all parts of this section to the application. The minimum
feasible height shall be the maximum height of any WECS, and applicant
shall justify any requested maximum height and demonstrate to the
Town Board's satisfaction the reason why a lower height is not feasible.
Notwithstanding the forgoing, no wind tower total height shall exceed
450 feet.
(16)
Construction of the WECS shall be limited to the hours of 7:00
a.m. to 7:00 p.m., Monday through Friday, unless a different schedule
is approved by the Town Board.
(17)
If it is determined that a WECS is causing stray voltage issues,
the operator shall take the necessary corrective action to eliminate
these problems up to and 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 suspension or revocation of the
special use permit for the specific WECS causing the problems.
(18)
WECS shall be located in a manner that minimizes significant
negative impacts on the historical and cultural aspects of the community
(i.e., high concentration of historic stone houses and buildings and
old-style barns). This shall be done in coordination with the New
York State Office of Parks, Recreation and Historic Preservation.
In addition, the review of New York's Department of State guidelines
for Scenic Areas of Statewide Significance shall be respected.
(19)
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.
(20)
Fencing may be required, as determined by the Town Board.
(21)
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-per-day,
seven-day-per-week coverage. The Town Board may require additional
signs based on safety needs.
(22)
No climbing pegs or tower ladders shall be located closer than
15 feet to the ground level at the base of the tower structure.
(23)
The minimum distance between the ground and any part of the
rotor or blade system shall be 30 feet.
(24)
WECS shall be designed to prevent unauthorized external access
to electrical and mechanical components and shall have access doors
that are kept securely locked.
(25)
The owner and/or operator of a WECS that has received approval
under this section and for which a permit has been issued shall file
with the Town Clerk on an annual basis an operation and maintenance
compliance report detailing the operation and maintenance activities
over the previous year and certifying full compliance with the operation
and maintenance plan. The annual report shall include a noise analysis
by a qualified acoustical consultant performed according to the International
Standard For Acoustic Noise Measurement Techniques For Wind Generators
(IEC 61400-11) or such other procedure as accepted by the Town Board
during the permit review process which certifies to the Town that
the noise level of the WECS is in full compliance with the provisions
of this section and the permit as issued.
(26)
Traffic routes.
(a)
Construction and delivery vehicles for WECS and/or associated
facilities shall use traffic routes established as part of the application
review process.
(b)
The applicant is responsible for remediation of damaged roads
and infrastructure upon completion of the installation and/or maintenance
of a WECS. The applicant shall comply in all requirements of any Town
of Hartland Infrastructure, Preservation or Protection Law.
(c)
In addition to complying with any Town of Hartland Infrastructure
Preservation or Protection Law, prior to placing the wind energy facility
in operation, and for the life of the project, the applicant shall
repair or reconstruct all state highways, county highways, Town highways
and village streets and highways damaged by the applicant to the standards
set forth by the Niagara County Highway Department regardless of the
condition of such highways, roads and streets prior to the commencement
of construction by the applicant.
(27)
Noise standards for wind energy systems.
(a)
The equivalent level (LEQ) generated by a wind energy conversion
system (WECS) shall not exceed the limits listed in Table 1 when measured
at the nearest off-site residence existing at the time of application,
or for which a building permit has been issued. If the A-weighted
background sound pressure level, without the WECS, is within five
dB of some or all of the limits in Table 1 or exceeds some or all
of the limits in Table 1, then the A-weighted criterion to be applied
to the WECS application for those affected limits shall be the A-weighted
background level plus five dB. Note: For example, during daytime,
if the background is less than or equal to 40 dB, then the limit is
45 dB. However, if the background is greater than 40 dB, say 44 dB,
then the applicable WECS limit is the background level plus five dB
which calculates to 49 dB for this example.
(b)
In all cases, the corresponding C-weighted limit shall be the operable A-weighted limit (from Table 1 or based on the A-weighted background, as appropriate) plus 18 dB. The application shall include certification by a qualified acoustical consultant as to the predicted A- and C-weighted WECS sound levels at potentially impacted residential sites. The qualified acoustical consultant shall be a member of the Institute of Noise Control Engineering of the USA. The background shall be measured and predicted in accordance with Subsection H(27)(c) below.
|
Table 1. WECS Noise Limits At Residential Receivers
| ||
|---|---|---|
|
(1 Hour LEQ Derived Per ANSI S12.9 Part 4 and S12.100)
| ||
|
Daytime 7:00 a.m. to 8:00 p.m.
|
Nighttime 8:00 p.m. to 7:00 a.m.
| |
|
A-weighted level (dB)
|
45
|
35
|
|
C-weighted level (dB)
|
63
|
50
|
(c)
A-weighted background community noise levels shall be based
on measured hourly L90 levels gathered following the procedures specified
in ANSI/ASA S12.9, Part 3 (R2013), Short Term Measurements with an
Observer Present, and ANSI/ASA S12.100-2014, Methods to Define and
Measure the Residual Sound in Protected Natural and Quiet Residential
Areas. The day shall be divided into two time periods: 1) daytime,
the hours from 7:00 a.m. to 8:00 p.m., and 2) nighttime, the hours
from 8:00 p.m. to 7:00 a.m. If insect noise possibly can dominate
some of the hourly L90 measurements then Ai weighting (see Schomer
et al., 2010[2] shall be used in lieu of the Standard A-weighting, or
measurements shall not be made when insect noise possibly can dominate
some of the hourly L90 measurements. (NOTE: In relatively quiet areas
insect noise, especially during summer months, can easily dominate
the A-weighted ambient sound level. This domination occurs partly
because the primary frequencies or tones of many, if not most, insect
noises are in the range of frequencies where the A-weighting is a
maximum, whereas, most mechanical and WECS noises primarily occur
at the lower frequencies where the A-weighting significantly attenuates
the sound. Also, insect noise and bird song do not mask WECS noise
at all because of the large differences in frequencies or tones between
them.) The background shall be reported by time period, and computed
as follows. The minimum hourly L90 shall be tabulated by time period
and by day, and the arithmetic average by time period over all the
periods of measurement shall be computed. These three averages of
daily minima shall be reported as that site's daytime, evening, and
nighttime A-weighted background, respectively.
[2]
Editor's Note: The full reference provided in this ordinance
is as follows:
Schemer, Paul D. et al., "Proposed 'Ai'-Weighting; a weighting
to remove insect noise from A-weighted field measurements," InterNoise
2010, Lisbon Portugal, 13-16 June 2010.
(d)
Parcels three acres or smaller: The A-weighted background measurements
shall be made along the line from the nearest proposed WECS to the
dwelling in question. If the parcel of land has no dwelling, then
the line shall terminate within 25 feet of the center of the parcel.
The actual position of the microphone shall be within the property
in question and should be within 25 feet to either side of the line,
no closer than 50 feet from the property boundary, and no closer than
25 from the house or any other structures. If positioning within this
"measurement box" is not possible because of unique site conditions
such as the position being underwater or the property being too small,
then the unique conditions shall be fully documented and an alternate
position selected and justified.
(e)
Parcels larger than three acres. The A-weighted background measurements
shall be made along the line from the nearest proposed wind turbine
to the property line of the residence, or vacant parcel. The actual
position of the microphone shall be within the property in question,
shall be at the property line closest to the any wind turbine, and
shall be no more than 50 feet from the property boundary. If positioning
within this "measurement box" is not possible because of unique site
conditions such as the position being underwater or the property being
too small, then the unique conditions shall be fully documented and
an alternate position selected and justified. The microphone shall
be no closer than 50 feet from the house or any other structures.
(f)
Measurement requirements. The microphone shall be situated between
four and 4.5 feet above the ground. Measurements shall be conducted
within the general provisions of ANSI/ASA S12.9 Part 3 and 12.100
(see above), and using a meter that meets at least the Type 2 requirements
of ANSI S1.4 and S1.4A-1985 (R2006). The meter noise floor shall be
20 dBA or lower. The report shall include each hourly measured A-weighted
L90 level, the tabulated daily minima by time period, and the three
time period averages. The report also shall include a sketch of the
site showing distances to the structure(s), to the property line,
etc., and several photographs showing the structure(s), the property,
and the acoustical instrumentation. All instrumentation shall be listed
by manufacturer, model, and serial number. This instrumentation listing
also shall include the A-weighted noise floor and the one-third-octave-band
noise floors, if utilized, for each meter used.
(g)
Background prediction and measurement. Background measurements
shall be conducted by the applicant throughout the area using sufficient
sites to generally characterize the background in various areas of
the community.
(h)
The starting point for predicting WECS A- and C-weighted levels
at potentially impacted residential parcels shall be the manufacturer-supplied
octave band sound power levels as measured by the manufacturer in
accordance with International Standard for Acoustic Noise Measurement
Techniques for Wind Generators (IEC 61400-11 and 61400-14 with all
tolerances added to the Apparent Sound Power Level used in the model).
At a minimum, the octave band data shall include the 10 octave bands
with nominal center frequencies ranging from 16 Hz to 8,000 Hz (see
ANSI S1.6-1984), and the sound power levels for these bands shall
be tabulated in the report. Any data not available from the manufacturer
shall be estimated from field measurements on like wind turbines already
in use. Any such field measurements shall be described fully and documented
in the report.
(i)
In the event audible noise due to wind energy facility operations
contains a steady or pure tone, or an intermittent or reoccurring
tone, such as a whine, screech, or hum, the tones shall be eliminated.
(NOTE: Minimum distances or setbacks are a very inexact means to limit
WECS noise. It is far more appropriate to deal with each application
on its own merits, taking into account the ground surface in the area,
the number and placement of the wind turbines, and the sound power
produced by the particular model of the WECS.)
(j)
Any noise level falling between two whole decibels shall be
rounded to the nearest whole decibel.
(k)
The maximum noise level for any WECS measured from the property
boundary lines of any school shall not exceed 40 dBA.
(l)
The Town, using the services of the Town Engineer, may conduct
or contract for any measurements. In addition to report filed by the
applicant/operator, the applicant/operator shall cooperate with any
Town testing of noise levels, including providing access to all sites
for that purpose.
[1]
The duration of any WECS measurement shall be 30 minutes. During the thirty-minute period, the equivalent level (LEQ) generated by the WECS shall be measured. The WECS operator shall cooperate by turning the wind turbines on and off as needed for the test and to provide the SCADA information to confirm that the wind turbine was operating at full power and not in a noise-reduced mode. The measurement location shall be at any residential property as given in Subsection H(27)(a) and at any point on this residential property at which the background community noise may be measured per Subsection H(27)(c). Measurements shall be entirely within the appropriate time period, e.g., during nighttime for nighttime enforcement, and the WECS shall operate continuously during the thirty-minute measurement.
[2]
The microphone shall be situated between four and 4.5 feet above
the ground. Measurements shall be conducted within the general provisions
of ANSI/ASA S12.9 Part 3 and S12.100 as above, and using a meter that
meets at least the Type 2 requirements of ANSI S1.4 and S1.4A-1985
(R2006). The instrument noise for shall be at least 10 dB below the
lowest level measured.
[3]
A calibrator shall be used as recommended by the manufacturer
of the sound level meter. The fundamental level of the calibrator
and the sensitivity of the sound level meter shall be verified annually
by a laboratory using procedures traceable to the National Institute
of Standards and Technology.
[4]
A wind screen shall be used as recommended by the sound level
meter manufacturer.
[5]
An anemometer shall be used and shall have a range of at least
zero to 15 miles per hour (zero to 6.7 meters per second) and an accuracy
of at least plus or minus two miles per hour (± 0.9 meters
per second). Measurements with wind speeds over 2.2 m/s shall be rejected.
[6]
A compass shall be used to measure wind direction to at least
an eight-point resolution: N, NE, E, SE, S, SW, W, NW. Measurements
shall be A-weighted, or, alternatively, in one-third-octave bands.
For A-weighted measurements, the uncertainty (tolerance) of measurements
shall be one dB for a Type 1 meter and two dB for a Type 2 meter.
For one-third-octave-band measurements, the meter shall meet the Type
1 requirements of ANSI S12.4 and S12.4a-1985 (R2006), and the uncertainty
of measurements shall be disclosed in each one-third-octave band along
with the method used to calculate them.
[7]
For all measurements, the surface wind speed, measured at a
1.5-meter height, shall be less than 2.2 m/s.
[8]
All measurements shall be corrected for the background on the
basis of mean square pressures. For one-third-octave-band measurements,
each one-third-octave band shall be individually corrected for the
background in that band. That is, both the WECS (which always includes
the background) and the background alone shall be measured in each
one-third-octave band. For either A-weighted data or one-third-octave
band data, the background shall be measured during a like period when
the WECS is not operating, and Table 2 shall be used to correct for
the background, by band in the case of one-third octave-band data.
A like period includes the same or like location, like surface wind
speed and direction, like time of day and day of the week (e.g., Monday
through Thursday night, Friday or Saturday night, or Sunday night),
etc.
[9]
After correction, when using data measured in one-third-octave
bands, all remaining bands, excluding bands set equal to zero, shall
be converted to A-weighted bands and then shall be summed on a mean
square pressure basis to establish the WECS background-corrected A-weighted
sound level.
|
Table 2
| |||||
|---|---|---|---|---|---|
|
Correction in dB that shall be subtracted from the WECS sound
level measurement (which always includes the background sound level)
because of the background sound so that the result is just the sound
level of the WECS alone. (See Note a below.)
| |||||
|
Δ, difference (dB)
|
<3
|
3-4
|
5-6
|
7-10
|
>10
|
|
K, correction (dB)
|
Notes b, c
|
3
|
2
|
1
|
0
|
|
NOTES:
| |
|
(a)
|
This table provides a simple correction to measurements of WECS
sound in the presence of the background. For example, the sound of
a WECS (along with the background sound which is always present) is
measured as 40 dB(A), and the background sound level alone (without
the WECS) is measured as 34 dB(A). Then Δ, the difference in
decibels is 6 dB (first row, third column), and the corresponding
correction shall be 2 dB (second row, third column). That is, 2 dB
shall be subtracted from the measured 40 dB(A) level, and it is adjusted
to and reported as 38 dB(A). The same procedure is followed in each
band for one-third-octave-band data.
|
|
(b)
|
When using directly measured A-weighted levels, if the difference
between the WECS sound level (plus background sound level) and the
background sound level alone is less than 3 dB, then it shall not
constitute a violation of this section.
|
|
(c)
|
When using measured one-third-octave-band data, if the difference
between the WECS sound pressure level (plus background sound pressure
level) and the background sound pressure level alone, each in the
same one-third-octave band, is less than 3 dB, then the WECS level
for that one-third-octave band shall be set to zero.
|
[10]
The report shall include a sketch of the site
showing distances to the structure(s), to the property line, etc.,
and several photographs showing the structure(s), the property, and
the acoustical instrumentation. All instrumentation shall be listed
by manufacturer, model, and serial number. This instrumentation listing
also shall include the A-weighted noise floor and the one-third-octave
band noise floors, if utilized, for each sound level meter used.
(28)
Economic effects. WECS shall be sited and constructed so as
to minimize any adverse economic effects on the Town, its residents
and its economic activities, including agricultural activities in
accordance with conditions established by the Town Board.
(29)
Health effects. WECS shall not adversely affect the health,
including mental health of the residents of the Town of Hartland.
All available material and studies as well as baseline health reports
of willing residents must be contained in a health maintenance plan
for any WECS project. Preconstruction health exams shall be provided
to willing residents. Reports of residents' exams shall be sealed
or maintained in the possession of residents or their physicians unless
they are made available by residents in accordance with HIPAA procedures.
(30)
No WECS shall be located in the Town of Hartland which, after
all data, required reports and studies are considered, it is determined
by the Town Board, will cause unacceptable interference with or danger
to bird or bat populations, or to migration routes.
(a)
When a WECS has been constructed in the Town of Hartland, the
applicant/owner/operator shall inventory all bird or bat kill and
report the same to the Town on a monthly basis. The applicant/owner/operator
shall also provide access to the site and surrounding area to the
Town designated representative to inventory killed birds or bats on
a daily basis, if requested.
(b)
If a tower or towers in a WECS are determined to cause numbers
of bird or bat kill which are determined to cause excessive, after
consultation with the Department of Environmental Conservation and
other involved agencies, remedial action shall be required up to and
including suspension or revocation of a permit or any part thereof.
(31)
Real property value protection plan. The WECS owner(s) ("applicant")
shall assure the Town of Hartland that there will be no loss in real
property value within two miles of each wind turbine within their
WECS. To legally support this claim, the applicant shall consent in
writing to a real property value protection agreement ("agreement")
as a condition of approval for the WECS. This agreement shall provide
assurance to nonparticipating real property owners (i.e., those with
no turbines on their property) near the WECS, that they have some
protection from WECS-related real property values losses. The applicant
shall agree to guarantee the property values of all real property
partially or fully within two miles of the WECS. Any real property
owner(s) included in that area who believe that their property may
have been devalued due to the WECS, may elect to exercise the following
option:
(a)
All appraiser costs are paid by the applicant, from the escrow
account. Applicant and the property owner shall each select a licensed
appraiser. Each appraiser shall provide a detailed written explanation
of the reduction, if any, in value to the real property ("diminution
value"), caused by the proximity to the WECS. This shall be determined
by calculating the difference between the current fair market value
(FMV) of the real property and what the FMV would have been at the
time of exercising this option, assuming no WECS was proposed or constructed.
[1]
If the higher of the diminution valuations submitted is equal
to or less than 25% more than the other, the two values shall be averaged
("average diminution value": ADV).
[2]
If the higher of the diminution valuations submitted is more
than 25% higher than the other, then the two appraisers will select
a third licensed appraiser, who shall present to applicant and property
owner a written appraisal report as to the Diminution Value for the
real property. The parties agree that the resulting average of the
two highest diminution valuations shall constitute the ADV.
[3]
In either case, the property owner may elect to receive payment
from applicant of the ADV. Applicant is required to make this payment
within 60 days of receiving said written election from property owner,
to have such payment made.
(b)
Other agreement conditions.
[1]
If a property owner wants to exercise this option, they must
do so within 10 years of the WECS receiving final approval from the
Town of Hartland.
[2]
A property owner may elect to exercise this option only once.
[3]
The applicant and the property owner may accept mutually agreeable
modifications of this agreement, although the applicant is not allowed
to put other conditions on a financial settlement (e.g., confidentiality).
If the property owner accepts some payment for property value loss,
based on an alternative method that is considered an exercise of this
option.
[4]
This agreement applies to the property owner of record as of
the date of the issuance of the permit, and is not transferable to
subsequent owners.
[5]
The property owner of record as of the date of the issuance
of the WECS permit must reasonably maintain the property from that
time, until they choose to elect this option.
[6]
The property owner must permit full access to the property by
the appraisers, as needed to perform the appraisals.
[7]
The property owner must inform the appraisers of all known defects
of the property as may be required by law, as well as all consequential
modifications or changes to the property subsequent to the date of
the WECS application.
[8]
This agreement will be guaranteed by the applicant (and all
its successors and assigns), for 10 years following the WECS receiving
final approval from the Town of Hartland, by providing a bond (or
other surety), in an amount determined to be acceptable by the County.
[9]
Payment by the applicant not made within 60 days will accrue
an interest penalty. This will be 12% annually, from the date of the
written election from property owner.
[10]
For any litigation regarding this matter, all
reasonable legal fees and court costs will be paid by the applicant.
[11]
Upon application, the applicant shall provide
a performance bond (or equivalent) in an amount determined by the
Town of Hartland and held by the Town of Hartland. This surety account
will ensure execution of all aspects of this Agreement (including
compensation of eligible property owners in the case of default by
applicant). Failure to maintain this surety account shall be cause
for revocation or suspension of the WECS permit.
(32)
Any other standard or requirement established by the Town Board
as set forth as a condition of approval of an application shall apply.
I.
Decommissioning.
(1)
If any WECS remains nonfunctional or inoperative for a continuous period of one year, the applicant shall, without any further action by the Town Board, remove said system at its own expense in accordance with the provisions of Subsection I(3) of this section. 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 Board's ability to order a remedial action plan.
(2)
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 to the Town all reports from the
purchaser of energy from individual WECS. Upon request of the Supervisor,
the Supervisor may also require periodic documentation reporting the
power output generated by the WECS.
(3)
Decommissioning and site restoration plan and requirements. An application
for a wind energy facility permit shall include a decommissioning
and site restoration plan containing the information and meeting the
requirements in this section.
(a)
The plan shall provide for the removal from the project parcels,
and lawful disposal or disposition of, all wind turbines and other
structures, hazardous materials, electrical facilities, and all foundations
to a depth of not less than 60 inches below grade. The plan shall
provide for the removal of all access roads that the owner of the
project parcels wants removed. The plan shall provide for the restoration
of the project parcels to farmland of similar condition to that which
existed before construction of the WECS.
(b)
The plan shall provide for the decommissioning of the site upon
the expiration or revocation of the WECS permit, or upon the nonfunctioning
of the WECS.
(c)
The plan shall include:
[1]
The estimated decommissioning cost in current dollars;
[2]
How said estimate was determined;
[3]
The method of ensuring that funds will be available for decommissioning
and restoration; and
[4]
The method that will be used to keep the decommissioning costs
current, by adjusted annually based on a suitable index such as the
"RS Means Heavy Construction Cost Data" index.
(d)
The plan shall include provisions for financial security to
secure completion of decommissioning (removal of nonfunctional towers
and appurtenant facilities) and site restoration. The applicant, or
successors, shall continuously maintain a fund in an amount to be
determined by the Town Board for the period of the life of the facility.
This fund shall be no less than 125% of the estimated cost of full
decommissioning and restoration in the form of a cash deposit with
the Town in the amount of 25% of such fund and the balance of such
fund in the form of an irrevocable bond in form and content as approved
by the Town Board. All decommissioning funding requirements shall
be met prior to commencement of construction.
(e)
The plan shall include written nonrevocable authorization from
the permit holder and the owners of all parcels within the project
for the Town to access the parcels and implement the decommissioning
and site restoration plan, in the event the permit holder fails to
implement the plan. The written authorization shall be in a form approved
by the Town and shall be binding on the heirs, assigns and distributees
of the owner(s), and shall be recorded in the Office of the Niagara
County Clerk.
(f)
Use of decommissioning fund.
[1]
Any nonfunctional WECS or any WECS for which the special use
permit has been revoked, shall be removed from the site and the site
restored in accordance with the approved decommissioning and site
restoration within 180 days of the date on which the facility becomes
nonfunctional or of the revocation of the special use permit, by the
applicant or owner of the WECS.
[2]
If removal of the WECS is required and the applicant, permittee,
or successors fails to remove the WECS and restore the site in accordance
with the approved decommissioning and site restoration plan, the permittee,
by accepting the permit, authorizes the Town Board to contract for
such removal and restoration and to pay for the removal and restoration
from the posted decommissioning and site restoration fund.
[3]
If the fund is not sufficient, the Town shall charge the permit
holder for the costs over and above the amount of the fund.
J.
Limitations on approvals; easements on Town property.
(1)
Nothing in this section 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 section 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.
(2)
Notwithstanding anything to the contrary contained in this section
or any other local law, ordinance, rule or regulation of the Town
of Hartland, building permits shall not be issued for new construction
on the same parcel as a permitted WECS when the proposed construction
is located within a setback required by this section. No property
or lot upon which a WECS has been permitted shall be further subdivided
in a manner that would result in a reduction of the setbacks required
by this section and/or as set forth in the permit.
K.
Permit enforcement revocation.
(1)
Testing fund. A special use permit shall contain a requirement that
the applicant perform periodic noise testing by a qualified acoustical
measurement consultant, which shall be included in the annual operation
maintenance and compliance report required under this section, and
may be required more frequently upon request of the Code Enforcement
Officer in response to complaints or reasonable suspicion of violation
of permit requirements. The scope of the noise testing shall be to
demonstrate compliance with the terms and conditions of the special
use permit and this section and shall include an evaluation of any
complaints received by the Town. The Town may, if the Code/Zoning
Enforcement Officer so determines, conduct or have conducted, such
testing as it determines in addition to the applicant/operator. Such
testing shall be paid for by the applicant.
(2)
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 and requirements of this section. Should a WECS become
inoperable, or should any part of the WECS be damaged, or should a
WECS violate a permit condition or any provision of this section,
the owner, or operator shall immediately notify the Code Enforcement
Officer. Upon such notice, or if the Code Enforcement Officer determines
that a violation exists, he shall determine the severity of the noncompliance.
If he determines the violation to be a threat to the life, safety,
health or immediate well-being of the public, he may order the WECS
to be shut down. Upon notification of a violation, the applicant/owner/operator
shall submit a remediation plan in writing within 10 days outlining
the steps to be taken to remedy the violation. If no plan is submitted,
or if remediation is not completed within 90 days of notice, or at
any other time the Code Enforcement Officer deems appropriate, the
Code Enforcement Officer shall notify the Town Board.
(3)
Notwithstanding any other enforcement provision under this section,
if the WECS is not repaired or made operational or brought into permit
compliance after said notice, the Town may, after a public hearing
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 timeframe, or 2)
order suspension of the permit until compliance is achieved, or 3)
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 shall have the right to use the security posted as part of
the decommission plan to remove the WECS.
L.
Fees.
(1)
Nonrefundable application fees for WECS, wind measurement towers,
and small WECS shall be established by the Town Board and reviewed
periodically. The fee may be changed by resolution of the Town Board.
Until established, the fee shall be $1,000 per megawatt of rated maximum
capacity submitted with the application.
(2)
Reimbursement of expenses related to a WECS project: The Town Board
of the Town of Hartland has determined that the review of building
and electrical permits for WECS requires specific expertise for those
facilities. Accordingly, for such facilities (WECS), an administrative
fee of $500 per permit request shall be charged for administrative
costs, plus the amount charged to the Town by the outside consultant(s)
hired by the Town to review the plans and inspect the work. The Town
and the applicant will enter into an agreement for an inspection and/or
certification procedure for these unique facilities, and the applicant
will be required to deposit the sum of $100,000 in an escrow account
with the Town which the Town may use to pay for any expenses it incurs
related to this project. The fees established herein may be amended
from time to time by resolution of the Town Board.
(3)
Nothing in this section shall be read as limiting the ability of
the Town to enter into host community agreements with any applicant
to compensate the Town for expenses or impacts on the community. 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.
M.
Project Management and Oversight.
(1)
Upon approval by the Town Board of a WECS special use permit application,
and as a condition to the issuance of a WECS special use permit, the
applicant shall designate a field representative and site manager
who will be responsible for overseeing compliance with the conditions
of the Permit. Such representative and site manager shall be in place
for as long as the WECS is in place. This person will have the authority
to make management and technical decisions as situations demand. The
applicant shall provide and update, at all times, the names, addresses,
daytime telephone numbers and emergency telephone numbers of field
representative and site manager to the Town Code Enforcement Officer
and the Town Supervisor. The applicant shall also provide contact
information for all entities providing operation, maintenance and
monitoring services.
(2)
As a condition to the issuance of a WECS special use permit, the
services of an engineering firm will be retained by the Town of Hartland
during the construction phase of the WECS project.
(3)
Prior to commencing construction, the applicant shall pay the Town
a project inspection fee in the amount of the 3% of the estimated
cost of construction, including all materials, contracts and labor.
Said amount is determined to be the reasonable cost to the Town to
provide for such inspection. If the cost to the Town is less than
that amount, the balance shall be refunded to the applicant upon completion
of the construction, issuance of a certificate of occupancy and approval
of all state and federal agencies.
(4)
The engineering firm will oversee all aspects of construction and
will be included in all design, construction, and planning meetings
and shall be provided with all technical information, specifications
and drawings. A representative of the engineering firm shall be on
site at all times during the construction phase. The firm will also
monitor road and infrastructure use and determine any damages to same.
(5)
The engineering firm's duties shall include coordination with the
Code Enforcement Officer for enforcement actions and project specification
compliance and they will be confirming that all project specifications
are implemented. The firm's representative may recommend that the
Code Enforcement Officer issue a "stop-work order" for issues including
but not limited to:
(6)
The applicant shall file daily, weekly and monthly construction plans
and will follow the planned work schedule as much as possible. When
daily, weekly, or monthly schedules are not completed as planned,
updated schedules shall be developed and given to the engineering
firm representative.
(7)
The applicant shall provide the engineering firm representative and
the Code Enforcement Officer with "as-built" drawings within one week
of completion of each portion of the construction phase or as requested
by the engineering firm representative, or Building Inspector.
(8)
All upgrades or changes to the WECS project, as permitted, shall
be reviewed and approved by the engineering firm and Code Enforcement
Officer prior to the implementation of such upgrades or changes. No
changes to basic design, height or location will be permitted unless
approved as an amendment to the application by the Town Board.
(9)
A final maintenance plan shall be provided to and approved by the
Code Enforcement Officer, which input from the engineering firm prior
to issuance of a certificate of occupancy, including but not limited
to:
(11)
All maintenance reports shall be filed with the Code Enforcement
Officer monthly, or more frequently as required.
(12)
In the event of an accident, the Town Code Enforcement Officer
shall have the authority to shut down all of the affected turbines
until a thorough investigation has taken place, a cause has been determined
and steps have been taken to ensure the problem will not reoccur,
as evidenced by a report to the Code Enforcement Officer.
N.
Enforcement; penalties and remedies for violations.
(1)
This section shall be enforced by the Town Code Enforcement Officer.
(2)
Any person owning, controlling or managing any building, structure
or land who shall undertake a wind energy facility in violation of
this section or operates such facility in noncompliance with the terms
and conditions of any permit issued pursuant to this section, shall
be guilty of a violation and subject to a fine of not more than $250
or to imprisonment for a period of not more than 15 days, or to both
such fine and imprisonment. Every such person shall be deemed guilty
of a separate offense for each week such violation shall continue.
(3)
The Code Enforcement Officer may, after notice of violation, enter
into a consent order with the applicant/owner/operator, to remedy
the violation with specifications to be taken and an agreed schedule.
(4)
Special proceeding: In addition to any other remedy, the Town Board
may institute an action or proceeding in equity, correct or abate
any unlawful construction, erection, structural alteration, reconstruction,
modification and/or use of a wind energy facility and shall be entitled
to injunctive relief, including a temporary restraining order and
a temporary injunction as the Court deems appropriate.
O.
Miscellaneous.
(1)
Nothing in this section, including the issuance of the permit by
the Town, shall eliminate any property or rights of property owners
or residents to enforce their legal remedies including, but not limited
to, actions in law or equity in the nature of nuisance proceedings,
or tort or negligence proceedings.
(2)
The Town reserves its right to opt out of the tax exemption provisions
of Real Property Tax Law § 487, pursuant to the authority
granted by Subsection (8) of said law or by any other provision of
law.
P.
Effective date. This section shall be effective upon its filing with
the Secretary of State in accordance with the Municipal Home Rule
Law.
[Added 6-15-2023 by L.L. No. 4-2023]
A.
Authority. This battery energy storage systems section is adopted pursuant to Article IX of the New York State Constitution, § 2(c)(6) and (10), New York Statute of Local Governments, § 10(1) and (7); §§ 261 through 263 of the Town Law; and § 10 of the Municipal Home Rule Law of the State of New York, which authorize the Town to adopt zoning provisions that advance and protect the health, safety and welfare of the community.
B.
Statement of purpose. This battery energy storage systems section
is adopted to advance and protect the public health, safety, welfare,
and quality of life of the Town of Hartland by creating regulations
for the installation and use of battery energy storage systems, with
the following objectives:
(1)
To provide a regulatory scheme for the designation of properties
suitable for the location, construction and operation of battery energy
storage systems.
(2)
To ensure compatible land uses in the vicinity of the areas affected
by battery energy storage systems.
(3)
To mitigate the impacts of battery energy storage systems on environmental
resources such as important agricultural lands, forests, wildlife
and other protected resources.
(4)
To protect the public health and safety of the residents of the Town
of Hartland.
(5)
To regulate the development of battery energy storage systems in
accordance with the Town's Comprehensive Plan.
C.
ANSI
BATTERY ENERGY STORAGE MANAGEMENT SYSTEM
BATTERY ENERGY STORAGE SYSTEM
(1)
(2)
(3)
BATTERY(IES)
CELL
COMMISSIONING
DEDICATED-USE BUILDING
(1)
(2)
(3)
(4)
(a)
(b)
ENERGY CODE
FIRE CODE
NATIONALLY RECOGNIZED TESTING LABORATORY (NRTL)
NEC
NFPA
NON-DEDICATED-USE BUILDING
NONPARTICIPATING PROPERTY
NONPARTICIPATING RESIDENCE
OCCUPIED COMMUNITY BUILDING
OPERATING PERMIT
PARTICIPATING PROPERTY
UL
UNIFORM CODE
Definitions. As used in this section, the following terms shall have
the meanings indicated:
American National Standards Institute.
An electronic system that protects energy storage systems
from operating outside their safe operating parameters and disconnects
electrical power to the energy storage system or places it in a safe
condition if potentially hazardous temperatures or other conditions
are detected.
One or more devices, assembled together, capable of storing
energy in order to supply electrical energy at a future time, not
to include a standalone twelve-volt car battery or an electric motor
vehicle. A battery energy storage system is classified as a Tier 1,
Tier 2 (Tier 2A and 2B) or Tier 3 battery energy storage system as
follows:
Tier 1 battery energy storage systems have an aggregate energy
capacity less than or equal to 600kWh and, if in a room or enclosed
area, consist of only a single energy storage system technology. These
are accessory uses to a principal use and are intended for energy
use by the principal use and do not exceed storage of 110% of two
days of energy for the user (as determined by the Town Building Department).
Tier 2 battery energy storage systems have an aggregate energy
capacity greater than 600kWh or are comprised of more than one storage
battery technology in a room or enclosed area (a Tier 2A system) or
in an outdoor area (a Tier 2B system). These are accessory uses to
a principal use and are intended for energy use by the principal use
and do not exceed storage of 110% of two days of energy for the user
(as determined by the Town Building Department).
Tier 3 battery energy storage systems (utility-grade systems)
are systems that are designed independent of a user, with a purpose
to store energy and then put that energy back into the power grid.
They can be an accessory or primary use on a site. They also include
any system not meeting the definition/requirements of a Tier 1 or
Tier 2 system.
A single cell or a group of cells connected together electrically
in series, in parallel, or a combination of both, which can charge,
discharge, and store energy electrochemically. For the purposes of
this section, batteries utilized in consumer products are excluded
from these requirements.
The basic electrochemical unit, characterized by an anode
and a cathode, used to receive, store, and deliver electrical energy.
A systematic process that provides documented confirmation
that a battery energy storage system functions according to the intended
design criteria and complies with applicable code requirements.
A building that is built for the primary intention of housing
battery energy storage system equipment, is classified as Group F-1
occupancy as defined in the International Building Code, and complies
with the following:
The building's only use is battery energy storage, energy
generation, and other electrical-grid-related operations.
No other occupancy types are permitted in the building.
Occupants in the rooms and areas containing battery energy storage
systems are limited to personnel that operate, maintain, service,
test, and repair the battery energy storage system and other energy
systems.
Administrative and support personnel are permitted in areas
within the buildings that do not contain battery energy storage systems,
provided the following:
The areas do not occupy more than 10% of the building area of
the story in which they are located.
A means of egress is provided from the administrative and support
use areas to the public way that does not require occupants to traverse
through areas containing battery energy storage systems or other energy
system equipment.
The New York State Energy Conservation Construction Code
adopted pursuant to Article 11 of the Energy Law, as currently in
effect and as hereafter amended from time to time.
The Fire Code section of the New York State Uniform Fire
Prevention and Building Code adopted pursuant to Article 18 of the
Executive Law, as currently in effect and as hereafter amended from
time to time.
A U.S. Department of Labor designation recognizing a private
sector organization to perform certification for certain products
to ensure that they meet the requirements of both the construction
and general industry OSHA electrical standards.
National Electrical Code.
National Fire Protection Association.
All buildings that contain a battery energy storage system
and do not comply with the dedicated-use building requirements.
Any property that is not a participating property.
Any residence located on nonparticipating property.
Any building in Occupancy Group A, B, E, I, or R, as defined
in the International Building Code, including but not limited to schools,
colleges, day-care facilities, hospitals, correctional facilities,
public libraries, theaters, stadiums, apartments, hotels, and houses
of worship.
As defined in § 78-2 of the Hartland Town Code.
A battery energy storage system host property or any real
property that is the subject of an agreement that provides for the
payment of monetary compensation to the landowner from the battery
energy storage system owner (or affiliate) regardless of whether any
part of a battery energy storage system is constructed on the property.
Underwriters' Laboratories, an accredited standards
developer in the U.S.
The New York State Uniform Fire Prevention and Building Code
adopted pursuant to Article 18 of the Executive Law, as currently
in effect and as hereafter amended from time to time.
D.
Applicability.
(1)
The requirements of this section shall apply to all battery energy
storage systems permitted, installed, or modified in Town of Hartland
after the effective date of this section, excluding general maintenance
and repair.
(2)
Battery energy storage systems constructed or installed prior to
the effective date of this section shall not be required to meet the
requirements of this section.
(3)
Modifications to, or retrofits or replacements of, an existing battery
energy storage system that increase the total battery energy storage
system designed discharge duration or power rating shall be subject
to this section.
E.
General requirements.
(1)
A building permit and an electrical permit shall be required for
installation of all battery energy storage systems.
(2)
Issuance of permits and approvals by the Hartland Town Board or Planning
Board shall include review pursuant to the State Environmental Quality
Review Act [ECL Article 8 and its implementing regulations at 6 NYCRR
Part 617 (SEQRA)].
(3)
All battery energy storage systems, all dedicated-use buildings,
and all other buildings or structures that 1) contain or are otherwise
associated with a battery energy storage system and 2) are subject
to the Uniform Code and/or the Energy Code shall be designed, erected,
and installed in accordance with all applicable provisions of the
Uniform Code, all applicable provisions of the Energy Code, and all
applicable provisions of the codes, regulations, and industry standards
as referenced in the Uniform Code, the Energy Code, and the Town Code.
(4)
Fees. Fees as set by the Town Board periodically by resolution must
be paid at the time of submission of an application for site plan
approval, a special use permit, a building permit, an amended building
permit, or renewal of a building permit. Applicants for Tier 2 or
3 projects may also be required to pay the costs of the Town's
engineers and attorneys or outside professional consultants for time
spent reviewing and analyzing the application.
F.
Permitting requirements for Tier 1 battery energy storage systems.
Tier 1 battery energy storage systems shall be permitted in all zoning
districts, subject to the Uniform Code, all other applicable codes,
and the battery energy storage system permit, and are exempt from
site plan review.
G.
Permitting requirements for Tier 2 (2A and 2B) battery energy storage
systems.
(1)
Tier 2A battery energy storage systems that are located within a
structure shall be permitted in all zoning districts, subject to the
Uniform Code, all other applicable codes, and the battery energy storage
system permit, and are exempt from site plan review.
(2)
Tier 2B battery energy storage systems that are located exterior
of the primary building on-site shall be permitted through the issuance
of site plan approval within all zoning districts, except the One-Family
and One- and Two-Family Residential Use Districts and the Floodplain
and Wetland Subuse Districts, and shall be subject to the Uniform
Code and the site plan application requirements set forth in this
section. Tier 2B battery energy storage systems associated with a
solar or wind energy project shall also only be allowed in conformance
with the Town laws associated with these type projects (only allowed
in the zoning districts that allow a solar and/or wind project).
(3)
Applications for the installation of a Tier 2B battery energy storage
system have the following requirements:
(a)
They shall be reviewed by the Code Enforcement Officer and the
Town engineering consultant for completeness. An application shall
be complete when it addresses all matters listed in this section,
including, but not necessarily limited to, i) compliance with all
applicable provisions of the Uniform Code and all applicable provisions
of the Energy Code and ii) matters relating to the proposed battery
energy storage system and floodplains, utility lines and electrical
circuitry, signage, lighting, vegetation and tree-cutting, noise,
decommissioning, site plan and development, special use and development,
ownership changes, safety, and permit time frame and abandonment.
Any deficiencies in the application must be addressed prior to substantive
review.
(b)
They shall be referred to the County Planning Board pursuant
to General Municipal Law § 239-m, if required.
(c)
The Planning Board shall act on the application after the SEQR
process is completed, which can include approval, approval with conditions,
or denial.
(d)
Utility lines and electrical circuitry. All on-site utility
lines shall be placed underground to the extent feasible and as permitted
by the serving utility, with the exception of the main service connection
at the utility company right-of-way and any new interconnection equipment,
including without limitation any poles, with new easements and right-of-way.
(e)
Signage.
[1]
The signage shall be in compliance with ANSI Z535 and shall
include the type of technology associated with the battery energy
storage system(s), any special hazards associated with the battery
energy storage system(s), the type of suppression system installed
in the area of the battery energy storage system(s), and twenty-four-hour
emergency contact information, including a reach-back phone number.
[2]
As required by the NEC, disconnect and other emergency shutoff
information shall be clearly displayed on a light-reflective surface.
A clearly visible warning sign concerning voltage shall be placed
at the base of all pad-mounted transformers and substations.
(f)
Lighting. Lighting of the battery energy storage system(s) shall
be limited to that minimally required for safety and operational purposes
and shall be reasonably shielded and downcast from abutting properties.
In accordance with Town law, there shall be no light spillage onto
adjoining properties.
(g)
Vegetation and tree-cutting. Areas within 10 feet on each side
of Tier 2 battery energy storage systems shall be cleared of combustible
vegetation and other combustible growth in accordance with all applicable
codes. Single specimens of trees, shrubbery, or cultivated ground
cover such as green grass, ivy, succulents, or similar plants used
as ground covers shall be permitted to be exempt, provided that they
do not form a means of readily transmitting fire. Removal of trees
should be minimized to the extent possible.
(h)
Noise. The one-hour average noise generated from the battery
energy storage system(s), components, and associated ancillary equipment
shall not exceed a noise level of 45 dBA as measured at the outside
wall of any nonparticipating residence or occupied community building.
Applicants may submit equipment and component manufacturers'
noise ratings to demonstrate compliance. The applicant may be required
to provide operating sound pressure level measurements from a reasonable
number of sampled locations at the perimeter of the battery energy
storage system(s) to demonstrate compliance with this standard.
(i)
Decommissioning.
[1]
Decommissioning plan. The applicant shall submit a decommissioning
plan, developed in accordance with the Uniform Code, to be implemented
upon abandonment and/or in conjunction with removal from the BESS
facility. The Planning Board or Town Board may determine the extent
of what is required in the decommissioning plan, depending on the
size and location of the installation. The decommissioning plan may
be required to include the following:
[a]
A narrative description of the activities to be
accomplished, including who will perform that activity and at what
point in time, for complete physical removal of all battery energy
storage system components, structures, equipment, ancillary equipment
and below-ground infrastructure, security barriers, and transmission
lines from the site.
[b]
Disposal of all solid and hazardous waste in accordance
with local, state, and federal waste disposal regulations.
[c]
The anticipated life of the battery energy storage
system.
[d]
The estimated decommissioning costs and how said
estimate was determined.
[e]
The method of ensuring that funds will be available
for decommissioning and restoration.
[f]
The method by which the decommissioning cost will
be kept current.
[g]
The manner in which the site will be restored,
including a description of how any changes to the surrounding areas
and other systems adjacent to the battery energy storage system, such
as, but not limited to, structural elements, building penetrations,
means of egress, and required fire detection suppression systems,
will be protected during decommissioning and confirmed as being acceptable
after the system is removed.
[h]
A listing of any contingencies for removing an
intact operational energy storage system from service, and for removing
an energy storage system from service that has been damaged by a fire
or other event.
(j)
Site plan application. For a Tier 2B battery energy storage
system, the site plan application shall include the following information:
[1]
Property lines and physical features, including roads, for the
project site.
[2]
Proposed changes to the landscape of the site, grading, vegetation
clearing and planting, exterior lighting, and screening vegetation
or structures.
[3]
A one- or three-line (as determined by the Town) electrical
diagram detailing the battery energy storage system layout, associated
components, and electrical interconnection methods, with all National-Electrical-Code-compliant
disconnects and over current devices.
[4]
A preliminary equipment specification sheet that documents the
proposed battery energy storage system components, inverters and associated
electrical equipment that are to be installed. A final equipment specification
sheet shall be submitted prior to the issuance of the building permit.
This information should include any information on structures to enclose
the system, such as elevations, renderings, etc.
[5]
Name, address, and contact information of the proposed or potential
system installer and the owner and/or operator of the battery energy
storage system. Such information of the final system installer shall
be submitted prior to the issuance of building permit.
[6]
Name, address, phone number, and signature of the project applicant,
as well as all the property owners, demonstrating their consent to
the application and the use of the property for the battery energy
storage system.
[7]
Zoning district designation for the parcel(s) of land comprising
the project site.
[8]
Commissioning plan. Such plan shall document and verify that
the system and its associated controls and safety systems are in proper
working condition per requirements set forth in the Uniform Code.
Where commissioning is required by the Uniform Code, battery energy
storage system commissioning shall be conducted by a New York State
(NYS) licensed professional engineer after the installation is complete
but prior to final inspection and approval. A corrective action plan
shall be developed for any open or continuing issues that are allowed
to be continued after commissioning. A report describing the results
of the system commissioning and including the results of the initial
acceptance testing required in the Uniform Code shall be provided
to the Town prior to final inspection and approval and maintained
at an approved on-site location.
[9]
Fire safety compliance plan. Such plan shall document and verify
that the system and its associated controls and safety systems are
in compliance with the Uniform Code.
[10]
Operation and maintenance plan. Such plan shall
describe continuing battery energy storage system maintenance and
property upkeep, as well as design, construction, installation, testing
and commissioning information, and shall meet all requirements set
forth in the Uniform Code.
[11]
Erosion and sediment control and stormwater management
plans prepared to New York State Department of Environmental Conservation
standards, if applicable, and to such standards as may be established
in the Town of Hartland and by the Town Board through the approval
process.
[12]
Prior to the issuance of the building permit,
but not required as part of the application, engineering documents
must be signed and sealed by an NYS licensed professional engineer.
[13]
Emergency operations plan. A copy of the approved
emergency operations plan shall be given to the system owner, the
local fire department, and local fire code official. A permanent copy
shall also be placed in an approved location to be accessible to facility
personnel, fire code officials, and emergency responders. The emergency
operations plan shall include the following information:
[a]
Procedures for safe shutdown, de-energizing, or
isolation of equipment and systems under emergency conditions to reduce
the risk of fire, electric shock, and personal injuries, and for safe
startup following cessation of emergency conditions.
[b]
Procedures for inspection and testing of associated
alarms, interlocks, and controls.
[c]
Procedures to be followed in response to notifications
from the battery energy storage management system, when provided,
that could signify potentially dangerous conditions, including shutting
down equipment, summoning service and repair personnel, and providing
agreed-upon notification to fire department personnel for potentially
hazardous conditions in the event of a system failure.
[d]
Emergency procedures to be followed in case of
fire, explosion, release of liquids or vapors, damage to critical
moving parts, or other potentially dangerous conditions. Procedures
can include sounding the alarm, notifying the fire department, evacuating
personnel, de-energizing equipment, and controlling and extinguishing
the fire.
[e]
Response considerations similar to a safety data
sheet (SDS) that will address response safety concerns and extinguishment
when an SDS is not required.
[f]
Procedures for dealing with battery energy storage
system equipment damaged in a fire or other emergency event, including
maintaining contact information for personnel qualified to safely
remove damaged battery energy storage system equipment from the facility.
[g]
Other procedures as determined necessary by the
Town to provide for the safety of occupants, neighboring properties,
and emergency responders.
[h]
Procedures and schedules for conducting drills
of these procedures and for training local first responders on the
contents of the plan and appropriate response procedures.
(k)
Additional standards (Tier 2B projects).
[1]
Setbacks. Tier 2B battery energy storage systems shall comply
with the setback requirements of the underlying zoning district for
principal structures, or as prescribed in the following subsections,
whichever is greater.
[2]
Height. Tier 2B battery energy storage systems shall comply
with the building height limitations for accessory structures of the
underlying zoning district, or as required by the Fire Code.
[3]
Fencing requirements. Tier 2 battery energy storage systems,
including all mechanical equipment, shall be enclosed by a seven-foot-high
fence with a self-locking gate to prevent unauthorized access unless
housed in a dedicated-use building and not interfering with ventilation
or exhaust ports, or as otherwise required by any federal, state or
local laws or codes.
[4]
Screening and visibility. Tier 2 battery energy storage systems
shall have views minimized from adjacent properties to the extent
reasonably practicable using architectural features, earth berms,
landscaping, or other screening methods that will harmonize with the
character of the property and surrounding area and not interfering
with ventilation or exhaust ports. Visibility should also be improved
through context-sensitive design of any structures to fit in the character
of the surrounding area.
H.
Permitting requirements for Tier 3 battery energy storage systems.
Tier 3 battery energy storage systems are permitted only in an Agricultural
Use District (AG[1] District) or Agricultural Business Use District (AB District),
if associated with a 94-c regulated solar energy or wind energy system
project (at time of application to the state). If a Tier 3 battery
energy storage system is not associated with a 94-c regulated solar
energy or wind energy system project (at time of application to the
state), these systems are permitted only in a General Business Use
District (GB District) or Light Industrial Use District (I District).
Tier 3 battery energy storage systems are permitted through the issuance
of a special use permit and site plan approval and shall be subject
to the Uniform Code and the site plan application requirements set
forth in the Tier 2B section, and the below additional requirements,
and other applicable sections of these regulations and the Town Code.
(1)
Special use permit standards (Tier 3 projects).
(a)
Setbacks. Tier 3 battery energy storage systems (as measured
from the fence line) shall be set back a minimum of 20 feet from any
property line, or as prescribed in the following subsections, whichever
is greater.
[1]
Shall not be placed in the front yard (for a property with a
principal use). For a property which does not have a principal use
or for which the battery energy storage system is the principal use,
the front yard setback shall be at least 200 feet.
[2]
Shall be set back a minimum of 100 feet from any side or rear
lot line that abuts a property in a residential district or a property
with a residential use.
[3]
Shall be set back a minimum of 20 feet from a side or rear lot
line that abuts a property in a commercial or industrial district.
[4]
Shall be set back a minimum of 100 feet from a side or rear
lot line that abuts a nonparticipating property containing a petroleum
storage tank and at least 200 feet from the tank itself. If a participating
property, the setback from the tank shall be a minimum of 200 feet
or as prescribed by any other law or requirement, whichever is greater.
[5]
Shall be set back a minimum of 20 feet from a side or rear lot
line that abuts a nonparticipating property containing electrical
infrastructure (substation, electrical towers, etc.).
[6]
Shall not be located within 200 feet of a public park or recreation
facility.
(b)
Height. Tier 3 battery energy storage systems shall have building/structure
height limitation of 20 feet.
(c)
Fencing requirements. Tier 3 battery energy storage systems,
including all mechanical equipment, shall be enclosed by a seven-foot-high
fence with a self-locking gate to prevent unauthorized access, or
as otherwise required in federal, state or local laws or codes, including
national codes and standards, and/or professional consensus standards.
(d)
Screening and visibility. Tier 3 battery energy storage systems
shall have views minimized from adjacent properties to the extent
reasonably practicable using architectural features, earth berms,
landscaping, or other screening methods that will harmonize with the
character of the property and surrounding area and not interfering
with ventilation or exhaust ports. The Planning Board shall provide
direction on the location and type of screening based on a visual
analysis/study to be submitted by the applicant. Visibility should
also be improved through context-sensitive design of any structures
to fit in the character of the surrounding area. The Planning Board
shall also provide direction on the design of any structures.
(e)
Safety. Tier 3 battery energy storage systems shall meet all
required New York State and federal safety standards, including, but
not limited to, requirements for spill containment, personal protection
(eye wash stations, safety showers, etc.) and fire suppression. After
completion of a Tier 3 system but prior to beginning operation, the
fire department and applicable emergency service providers will be
provided a training and education day with the owner and equipment
manufacturers on the system (at the cost of the owner/applicant).
(f)
A road use agreement with the Town may be required if utilizing
Town roads for construction access.
(2)
Additional site plan and other requirements for Tier 3 systems.
(a)
Access design. Due to the nature of these large facilities,
primary and secondary means of access from the public right-of-way
(ROW) to the site are required. The ROW used for access shall not
be a dead-end road. Access shall be provided through roadways/driveways
designed to Town standards with input from emergency service providers.
Primary and secondary access may be created through a public improvement
permit.
(b)
Any infrastructure to be placed to service the site (water,
sewer, etc.) must meet Town and other applicable standards. Public
water and sewer extensions may be provided through a public improvement
permit.
(c)
A noise study will be required addressing noises and tonal issues.
(3)
Decommissioning fund. The owner and/or operator of any Tier 3 battery
energy storage system shall continuously maintain a fund or bond payable
to the Town, in a form approved by the Town Attorney, for the removal
of the battery energy storage system (in accordance with the approved
decommissioning plan), in an amount to be determined by the Town (based
on 125% of the estimated value for decommissioning; no recycle or
salvage value allowed), for the period of the life of the facility.
This estimate will be updated on a prescribed basis and account for
inflation, and the fund or bond will reflect these revised estimates.
This fund may consist of a letter of credit from a financial institution
licensed by the State of New York. All costs of the financial security
shall be borne by the applicant. The applicant shall also provide
a notarized acknowledgement that if the costs for removal of the battery
facility exceed the bond for decommissioning, the battery energy storage
system owner/operator is fully fiscally responsible.
[1]
Editor's Note: See Executive Law § 94-c.
I.
Safety.
(1)
System certification. Battery energy storage systems and equipment
shall be listed by a nationally recognized testing laboratory to UL
9540 or the most recent standard for battery energy storage systems
and equipment with subcomponents meeting each of the following standards
as applicable:
(a)
UL 1973 (Standard for Batteries for Use in Stationary, Vehicle
Auxiliary Power, and Light Electric Rail Applications) or most recent
standard.
(b)
UL 1642 (Standard for Lithium Batteries) or most recent standard.
(c)
Other applicable standards for other battery types.
(d)
UL 1741 or UL 62109 (Inverters and Power Converters) or most
recent standard.
(e)
Certified under the applicable electrical, building, and fire
prevention codes as required.
(f)
Alternatively, field evaluation by an approved testing laboratory
for compliance with UL 9540 and applicable codes, regulations and
safety standards may be used to meet system certification requirements.
(2)
Site access maintenance. Battery energy storage systems shall be
maintained in good working order and in accordance with industry standards.
Site access shall be maintained, including snow removal at a level
acceptable to the local fire department and emergency service providers.
(3)
Battery energy storage systems, components, and associated ancillary
equipment shall have required working space clearances, and electrical
circuitry shall be within weatherproof enclosures marked with the
environmental rating suitable for the type of exposure in compliance
with NFPA 70 or most recent standard.
J.
Permit time frame and abandonment.
(1)
The special use permit and site plan approval for a battery energy
storage system shall be valid for a period of 24 months, provided
that a building permit is issued for construction and/or construction
is commenced. In the event construction is not completed in accordance
with the final site plan, as may have been amended and approved, as
required by the Planning Board, within 24 months after approval, the
Town may extend the time to complete construction for 180 days. If
the owner and/or operator fails to perform substantial construction
after 36 months, the approvals shall expire.
(2)
The battery energy storage system shall be considered abandoned when
it ceases to operate consistently for more than one year. If the owner
and/or operator fails to comply with decommissioning upon any abandonment,
the Town may, at its discretion, enter the property and utilize the
available bond and/or security for the removal of a Tier 2B or Tier
3 battery energy storage system and restoration of the site in accordance
with the decommissioning plan. The Town retains the sole right to
make the determination of site decommission completion (whether by
the site owner or by the Town through the security). Any costs borne
by the Town to make the determination that the site is decommissioned
fully may be passed on to the developer/site owner.
K.
Construction inspections (Tier 3 projects).
(1)
Work to remain accessible and exposed. Work shall remain accessible and exposed until inspected and accepted by the Code Enforcement Officer. The permit holder shall notify the Code Enforcement Officer when any element of work described in Subsection K(2) of this section is ready for inspection.
(2)
Elements of work to be inspected. The following elements of the construction
process shall be inspected, where applicable:
(a)
Work site prior to the issuance of a building permit.
(b)
Footing and foundation.
(c)
Preparation for concrete slab.
(d)
Framing.
(e)
Building systems, including underground and rough-in.
(f)
Fire-resistant construction.
(g)
Fire-resistant penetrations.
(h)
Solid-fuel-burning heating appliances, chimneys, flues or gas
vents.
(i)
Energy Code compliance.
(j)
Inspection after all work authorized by the building permit
has been completed and signed off by the Town Building Inspector and
Town Engineer.
(k)
A final inspection by the fire inspector must be completed prior
to activation.
(3)
Inspection results. After inspection, the work or a portion thereof
shall be noted as satisfactory as completed, or the permit holder
shall be notified as to where the work fails to comply with the Uniform
Code or Energy Code. Work not in compliance with any applicable provision
of the Uniform Code or Energy Code shall remain exposed until such
work shall have been brought into compliance with all applicable provisions
of the Uniform Code and the Energy Code, reinspected, and found satisfactory
as completed.
(4)
Fee. A fee will be set by the Town Board for construction inspections,
and that fee must be paid prior to or at the time of each inspection
performed pursuant to this section.
(5)
At the completion of construction, the applicant shall have an engineer
inspect and certify (PE stamped) that the project has been constructed
in accordance with all required standards and in accordance with Town
approvals.
L.
Ownership changes (Tier 2 and 3 projects).
(1)
If the owner (or lessee) of the battery energy storage system changes
or the owner of the property changes, the special use permit and/or
operating permit shall remain in effect, provided that the successor
owner or operator assumes in writing all of the obligations of any
special use permit, operating permit, site plan approval, and decommissioning
plan. A new owner or operator of the battery energy storage system
shall notify the Town of Hartland of such change in ownership or operator
within 30 days of the ownership change. A new owner or operator must
provide such notification to the Town in writing.
(2)
The successor owner or operator shall assume in writing all the obligations
within the decommissioning plan. Proof of acknowledgement of the decommissioning
plan and proof of bond may be requested by the Town at time of ownership
change. The new owner should sign the acknowledgement regarding the
costs exceeding the bond.
(3)
The special use permit and/or operating permit and all other local
approvals for the battery energy storage system would be void if a
new owner or operator fails to provide written notification to the
Town in the required time frame. Reinstatement of a void special use
permit and/or operating permit will be subject to the same review
and approval processes for new applications under this section.
M.
Enforcement; penalties and remedies for violations.
(1)
This section shall be enforced by the Town Code Enforcement Officer.
(a)
Any person owning, controlling, or managing any building, structure
or land who shall install a battery energy storage system in violation
of this section, or who operates such facility in noncompliance with
the terms and conditions of any permit issued pursuant to this section,
shall be guilty of a violation and subject to a fine of not more than
$250 or to imprisonment for a period of not more than 15 days, or
to both such fine and imprisonment. Every such person shall be deemed
guilty of a separate offense for each week such violation shall continue.
(b)
The Code Enforcement Officer may, after notice of violation,
enter into a consent order with the applicant/owner/operator to remedy
the violation with specifications to be taken and an agreed-upon schedule.
(c)
Special proceeding. In addition to any other remedy, the Town
Board may institute an action or proceeding in equity, correct or
abate any unlawful construction, erection, structural alteration,
reconstruction, modification and/or use of a battery energy storage
system, and shall be entitled to injunctive relief, including a temporary
restraining order and a temporary injunction as the court deems appropriate.
(2)
Battery energy storage systems requiring an operating permit shall
be required to submit a certified report by the owner and be inspected
annually, and shown to be in accordance with the operating permit
and any other approvals.
N.
Stop-work orders.
(1)
Authority to issue. The Code Enforcement Officer is authorized to
issue stop-work orders pursuant to this section. The Code Enforcement
Officer shall issue a stop-work order to halt:
(a)
Any work that is determined by the Code Enforcement Officer
to be contrary to any applicable provision of the Uniform Code or
Energy Code, the Zoning Code or any other general or local laws, ordinances,
rules or regulations without regard to whether such work is or is
not work for which a building permit is required, and without regard
to whether a building permit has or has not been issued for such work;
(b)
Any work that is being conducted in a dangerous or unsafe manner
in the opinion of the Code Enforcement Officer, without regard to
whether such work is or is not work for which a building permit is
required, and without regard to whether a building permit has or has
not been issued for such work; or
(c)
Any work for which a building permit is required which is being
performed without the required building permit, or under a building
permit that has become invalid, has expired, or has been suspended
or revoked.
(3)
Service of stop-work orders. The Code Enforcement Officer shall cause
the stop-work order, or a copy thereof, to be served on the owner
of the affected property and, if the owner is not the permit holder,
on the permit holder personally or by registered mail or certified
mail. Service by registered or certified mail shall be sufficient
if addressed to the address set forth in the building permit application.
The Code Enforcement Officer shall be permitted, but not required,
to cause the stop-work order, or a copy thereof, to be served on any
new applicant, owner, builder, architect, tenant, contractor, subcontractor,
construction superintendent, or their agents, or any other person
taking part or assisting in work affected by the stop-work order,
personally or by registered mail or certified mail; provided, however,
that failure to serve any person mentioned in this sentence shall
not affect the efficacy of the stop-work order.
(4)
Effect of stop-work order. Upon the issuance of a stop-work order,
the owner of the affected property, the permit holder and any other
person performing, taking part in or assisting in the work shall immediately
cease all work which is the subject of the stop-work order.
(5)
Remedy not exclusive. The issuance of a stop-work order shall not be the exclusive remedy available to address any event described in Subsection N(1) of this section, and the authority to issue a stop-work order shall be in addition to, and not in substitution for or limitation of, the right and authority to pursue any other remedy or impose any other penalty under Subsection M, Enforcement; penalties and remedies for violations, of this section or under any other applicable local law or state law. Any such other remedy or penalty may be pursued at any time, whether prior to, at the time of, or after the issuance of a stop-work order.
O.
Severability. The invalidity or unenforceability of any section,
subsection, paragraph, sentence, clause, provision, or phrase of the
aforementioned sections, as declared by the valid judgment of any
court of competent jurisdiction to be unconstitutional, shall not
affect the validity or enforceability of any other section, subsection,
paragraph, sentence, clause, provision, or phrase, which shall remain
in full force and effect.
P.
When effective. This section shall take effect immediately upon filing
with the Secretary of State of New York.
