[HISTORY: Adopted by the Town Council of the Town of Cumberland
as indicated in article histories. Amendments noted where applicable.]
[Adopted 11-9-2009]
This article shall be known as the "Small Wind Turbine Ordinance
for the Town of Cumberland, Maine."
This article is adopted pursuant to the enabling provisions
of Article VIII, Part 2, Section 1, of the Maine Constitution, the
provisions of 30-A M.R.S.A. § 3001 (home rule), and the
provisions of the Planning and Land Use Regulation Act, 30-A M.R.S.A.
§ 4312 et seq.
The purpose of this article is to provide for the construction
and operation of small wind turbines in both residential and nonresidential
districts in Cumberland, Maine, subject to reasonable conditions that
will protect the public health, safety, and welfare.
As used in this article, the following terms shall have the
meanings indicated:
The legal entity, including successors and assigns, that
files an application under this article.
A residential subdivision for which all applicable land use
permits have been issued, provided that the time for beginning construction
under such permits has not expired.
Elements of a wind energy facility other than its generating
facilities that are necessary to the proper operation and maintenance
of the wind energy facility, including but not limited to buildings,
access roads, generator lead lines and substations.
A certification issued by the Department of Environmental
Protection pursuant to 35-A M.R.S.A. § 3456 for a wind energy
development.
Wind turbines and electrical lines, not including generator
lead lines, that are immediately associated with the wind turbines.
A generator interconnection transmission facility as defined
by 35-A M.R.S.A. § 3132, Subsection 1-B.
A historic site administered by the Bureau of Parks and Lands
of the Maine Department of Conservation, with the exception of the
Arnold Trail.[1]
Any site, structure, district or archaeological site which
has been officially included on the National Register of Historic
Places and/or on the Maine Historic Resource Inventory, or which is
established by qualified testimony as being of historic significance.
Any site or area designated by a municipality for passive
recreation that is open and maintained for public use and which:
Has fixed boundaries;
Is owned in fee simple by a municipality or is accessible by
virtue of public easement;
Is identified and described in a local comprehensive plan; and
Has been identified and designated at least nine months prior
to the submission of the applicant's small wind turbine permit
application.
A tower used for the measurement and collection of wind data
that supports various types of equipment, including but not limited
to anemometers, data recorders, and solar power panels. Meteorological
towers have a height restriction of 175 feet, rather than the small
wind turbine limit of 150 feet. Meteorological towers may also include
wildlife-related equipment such as Anabat detectors, bird diverts
and wildlife entanglement protectors. Meteorological towers erected
on a temporary basis for the purpose of determining wind availability
shall not be subject to the one-hundred-seventy-five-foot height restriction.[2]
The frame and housing at the top of the tower that encloses
the gearbox and generator.
Any landowner, other than a participating landowner, whose
land is located within the Town of Cumberland.
A residence, school, hospital, house of worship, public library
or other building that is occupied or in use as a primary residence
or is customarily frequented by the public at the time when the permit
application is submitted.
One or more persons that hold title in fee or a leasehold
interest with sublease rights to property on which generating facilities
or associated facilities are proposed to be located pursuant to an
agreement with the applicant or an entity that has entered into an
appropriate agreement with the applicant allowing the applicant to
demonstrate the requisite right, title and interest in such property.
An individual, corporation, partnership, firm, organization
or other legal entity.
A residence for which all applicable building and land use
permits have been issued, provided that the time for beginning construction
under such permits has not expired.
A building or structure, including manufactured housing,
maintained for permanent or seasonal residential occupancy providing
living, cooking and sleeping facilities and having permanent indoor
or outdoor sanitary facilities, excluding recreational vehicles, tents,
and watercraft.
A sequence of repetitive sounds which occurs more than once
within an hour, each clearly discernible as an event and causing an
increase in the sound level of at least five dBA on the fast meter
response above the sound level observed immediately before and after
the event, each typically less than 10 seconds in duration, and which
is inherent to the process or operation of the development and is
foreseeable.
A significant wildlife habitat as defined in 38 M.R.S.A.
§ 480-B, Subsection 10.
A wind energy facility having a maximum generating capacity
of less than 10 kilowatts and a maximum turbine height of 150 feet.
Only turbines that meet this definition are allowed in the Town of
Cumberland.
Construction shall be considered to be substantially commenced
when any work beyond excavation, including but not limited to the
pouring of a slab or footings, the installation of piles, the construction
of columns, or the placement of a tower on a foundation, has begun.
The freestanding structure on which a wind measuring or energy
conversion system is mounted.
The distance measured from the surface of the tower foundation
to the highest point of any turbine rotor blade measured at the highest
arc of the blade.
A small wind turbine and any associated facilities or a MET
tower.
A system for the conversion of wind energy into electricity
which is comprised of a tower, generator, and/or nacelle, rotor and
transformer.
A.
This article applies to any small wind turbine or MET tower proposed
for construction in the Town of Cumberland after the effective date
of this article. This article does not apply to associated facilities
unless the generating facilities are located within the Town of Cumberland,
in which case this article applies to both the generating facilities
and the associated facilities.
B.
A small wind turbine that is the subject of an application determined to be complete by the Code Enforcement Officer prior to the effective date of this article shall not be required to meet the requirements of this article, provided that any physical modifications after the effective date of this article shall be subject to the permitting requirements of § 300-7B.
If there is a conflict between provisions in this article, the
more stringent shall apply. If there is a conflict between a provision
in this article and that of another Town of Cumberland ordinance,
the provision of this article shall apply.
A.
Review and approval authority. The Code Enforcement Officer is authorized to review all applications for small wind turbines and MET towers pursuant to § 300-9 and may approve, deny or approve such applications with conditions in accordance with the standards of this article.
B.
Permit required.
(1)
No wind turbine or MET shall be constructed or located within the
Town of Cumberland without a permit issued in accordance with this
article.
(2)
Any physical modification to an existing small wind turbine that
materially alters the location or increases the area of development
on the site or that increases the turbine height or the level of sound
emissions of any wind turbine shall require a permit modification
under this article. Like-kind replacements and routine maintenance
and repairs shall not require a permit modification.
C.
Permit applications.
(1)
Application components. A small wind turbine permit application shall
consist of the application form, application fee, and supporting documents,
as described below:
(a)
Application forms. The Town shall provide the application form
which shall be signed by a person with right, title and interest in
the subject property or a person having written authorization from
a person with right, title and interest in the subject property. The
signature shall be dated and the signatory shall certify that the
information in the application is complete and correct and that the
proposed facility will be constructed and operated in accordance with
the standards of this article and all approval and permit conditions,
if any.
(2)
Application submission. The applicant shall submit its application
for a small wind turbine permit to the Code Enforcement Officer, who
shall note on the application the date on which it was received.
(3)
Changes to a pending application. The applicant shall promptly notify
the Code Enforcement Officer of any changes the applicant proposes
to make to information contained in the application.
D.
Permit application procedures.
(1)
Within 10 days after receiving an application, the Code Enforcement
Officer shall notify the applicant in writing either that the application
is complete or, if the application is incomplete, the specific additional
material needed to complete the application. The Code Enforcement
Officer may waive any submission requirement if the Code Enforcement
Officer issues a written finding that, due to special circumstances
of the application, adherence to that requirement is not necessary
to determine compliance with the standards of this article.
(2)
Within 30 days after determining the application to be complete, the Code Enforcement Officer shall issue a written order denying approval of the proposed wind energy facility, granting approval of the proposed small wind turbine, or granting approval of the proposed small wind turbine with conditions. In making the decision, the Code Enforcement Officer shall make findings on whether the proposed small wind turbine meets the applicable criteria described in §§ 300-10 and 300-11.
(3)
With the agreement of the applicant, the Code Enforcement Officer
may extend the procedural time frames of this section.
E.
Professional services. In reviewing the application for compliance
with this article, the Town may retain professional services, including
but not limited to those of an attorney or consultant, to verify information
presented by the applicant and to otherwise assist the Code Enforcement
Officer in preparing a decision. The attorney or consultant shall
first estimate the reasonable cost of such review and the applicant
shall deposit with the Town the full estimated cost, which the Town
shall hold in a separate review account. The Town shall pay the attorney
or consultant from the escrow account and reimburse the applicant
if funds remain after final payment.
F.
Expiration of permits. Permits shall expire one year after the date
of approval unless a substantial start on construction has occurred
and two years after the date of approval unless construction of the
small wind turbine has been completed. Upon the applicant's written
request, the Code Enforcement Officer may extend either or both expiration
time limits by one year.
G.
Access. The Code Enforcement Officer shall have access to the site
at all times to review the progress of the work and shall have the
authority to review all records and documents directly related to
the design, construction and operation of the facility.
H.
Enforcement.
(1)
It shall be unlawful for any person to violate or fail to comply
with or take any action that is contrary to the terms of this article,
or to violate or fail to comply with any permit issued under this
article, or to cause another to violate or fail to comply or take
any action which is contrary to the terms of this article or any permit
under this article.
(2)
If the Code Enforcement Officer determines that a violation of this
article or the permit has occurred, the Code Enforcement Officer shall
provide written notice to any person alleged to be in violation of
this article or permit. If the alleged violation does not pose an
immediate threat to public health or safety, the Code Enforcement
Officer and the alleged violator shall engage in good faith negotiations
to resolve the alleged violation. Such negotiations shall be conducted
and concluded within 30 days of the notice of violation. With the
consent of the alleged violator, this time period may be extended.
(3)
If, after 30 days from the date of notice of violation or further
period as agreed to by the Town and the alleged violator, the Code
Enforcement Officer determines that the parties have not resolved
the alleged violation, the Code Enforcement Officer may institute
civil enforcement proceedings pursuant to 30-A M.R.S.A. § 4452
or pursue any other available legal or equitable remedy to ensure
compliance with this article or permit.
(4)
Applications for small wind turbines shall be approved in writing
by the Code Enforcement Officer. The decision of the Code Enforcement
Officer shall be mailed to abutters within 300 feet from the property
boundary line.
A.
General submission requirements. An application shall include:
(1)
A completed
application form, including:
(a)
The applicant's and participating landowner's name(s) and contact
information.
(b)
The address, tax map number, zone, and owner(s) of the proposed
facility site and any contiguous parcels owned by participating landowners.
(c)
The tax map and lot numbers, owners and addresses of owners
of parcels that abut the proposed facility site or abut parcels of
participating landowners that are contiguous with the proposed facility
site.
(d)
An affirmation, signed and dated by the applicant, that the
information provided in the application is correct and that the proposed
small wind turbine, if approved and built, shall be constructed and
operated in accordance with the standards of this article and all
conditions of approval, if any
(2)
Receipt
showing payment of application fee.
(3)
A copy
of a deed, easement, purchase option or other comparable documentation
demonstrating that the applicant has right, title or interest in the
proposed facility site.
(4)
Location
map showing the boundaries of the proposed facility site and all contiguous
property under total or partial control of the applicant or participating
landowner(s).
(5)
Description
of the proposed small wind turbine generating capacity, the turbine
height and manufacturer's specifications for each small wind
turbine (including but not limited to the make, model, maximum generating
capacity, sound emission levels and types of overspeed controls) and
a description of associated facilities.
(6)
Site
plan showing the proposed location of each small wind turbine and
associated facilities and any of the following features located within
500 feet of any small wind turbine: parcel boundaries, required setbacks,
topographic contour lines (maximum twenty-foot interval), roads, rights-of-way,
overhead utility lines, buildings (identified by use), land cover,
wetlands, streams, water bodies and areas proposed to be regraded
or cleared of vegetation.
(7)
Written
evidence that the provider of electrical service to the property has
been notified of the intent to connect an electric generator to the
electricity grid, if such connection is proposed.
(8)
Description
of emergency and normal shutdown procedures.
(9)
Photographs
of existing conditions at the site.
B.
An application for a wind energy facility shall include structural
drawings of the tower foundation and anchoring system prepared by
the wind turbine or tower manufacturer, prepared in accordance with
the manufacturer's specifications, or prepared and stamped by
a Maine licensed professional engineer.
C.
An application shall include a written statement, signed by the applicant, that certifies that the proposed facility is designed to meet the applicable noise control standards under § 300-11C and acknowledges the applicant's obligation to take remedial action in accordance with § 300-11F if the Code Enforcement Officer determines those standards are not being met.
Applications for meteorological (MET) towers shall be subject
to the submission and review standards for a small wind turbine. A
permit for an MET tower shall be valid for one year and two months
from the date of issuance. The Code Enforcement Officer may grant
one or more one-year extensions of this permit period. Within 30 days
following removal of an MET tower, the applicant shall restore the
site to its original condition to the extent practicable. The provisions
of this section do not apply to permanent MET towers included as associated
facilities in approved small wind turbine applications.
A.
Height restrictions. No windmills shall exceeded 150 feet in height.
Turbine height is defined as the distance measured from the surface
of the tower foundation to the highest point of any turbine rotor
blade measured at the highest arc of the blade.
B.
Safety setbacks. Small wind turbines shall be set back a horizontal
distance equivalent to 150% of the turbine height from property boundaries,
public and private rights-of-way and overhead utility lines that are
not part of the proposed generating facility, except that the Code
Enforcement Officer may allow a reduced setback if the applicant submits,
in writing:
(1)
Written
permission to reduce property boundary setback signed by the pertinent
abutting landowner that provides that the permission will remain in
effect as long as the small wind turbine remains on the property and
that the permission will be recorded in the Cumberland County Registry
of Deeds; or
(2)
Evidence,
such as operating protocols, safety programs, or recommendations from
the manufacturer or a licensed professional engineer with appropriate
expertise and experience with small wind turbines, that demonstrates
that the reduced setback proposed by the applicant is appropriate.
C.
Natural resource protection. A small wind energy facility shall not have an unreasonable adverse effect on rare, threatened, or endangered wildlife, significant wildlife habitat, rare, threatened or endangered plants and rare and exemplary plant communities as identified by the Maine Department of Inland Fisheries and Wildlife. In making its determination under this subsection, the municipal entity responsible for review and approval of the permit application under § 300-7A shall consider all pertinent application materials.
D.
Building permit. All components of the small wind turbine shall conform
to relevant and applicable local and state building codes.
E.
Overspeed controls and brakes. Each small wind turbine shall be equipped
with an overspeed control system that:
(1)
Includes
both an aerodynamic control such as stall regulation, variable blade
pitch, or other similar system and a mechanical brake that operates
in fail-safe mode; or
(2)
Has
been designed by the manufacturer or a licensed civil engineer and
found by the Code Enforcement Officer, after review of a written description
of the design and function of the system, to meet the needs of public
safety.
F.
Electrical components and interconnections. All electrical components
of the small wind turbine shall conform to relevant and applicable
local, state, and national codes.
G.
Access. To reduce the potential for trespass and injury, all ground-mounted
electrical and control equipment and all access doors to a small wind
turbine shall be labeled and secured to prevent unauthorized access.
A wind tower shall not be climbable up to a minimum of 15 feet above
ground surface.
H.
Blade clearance. The minimum distance between the ground and all
blades of a small wind turbine shall be 25 feet as measured at the
lowest arc of the blades.
I.
Signal interference. The applicant shall make reasonable efforts
to avoid and mitigate to the extent practicable any disruption or
loss of radio, telephone, television, or similar signals caused by
the small wind turbine.
J.
Erosion control. Erosion of soil and sedimentation shall be minimized
by employing best management practices in the Maine Erosion Control
Handbook for Construction: Best Management Practices, March 2003.
K.
Visual appearance.
(1)
A small wind turbine shall not be lighted artificially, except to
the extent consistent with Federal Aviation Administration recommendations
or other applicable authority that regulates air safety, or as is
otherwise required by another governmental agency with jurisdiction
over the wind energy facility.
(2)
A small wind turbine shall not be used to support signs and shall
not display advertising except for reasonable and incidental identification
of the turbine manufacturer, facility owner, and operator, and for
warnings. No towers will be used for any purposes other than those
specifically stated in this article.
(3)
The system's tower and blades shall be a nonreflective, neutral
color that blends the system and its components into the surrounding
landscape to the greatest extent possible and incorporates nonreflective
surfaces to minimize any visual disruption.
Noise emanating from small wind turbines shall be controlled
in accordance with the provisions of this section.
A.
The sound-level limits contained in this section apply to property
boundaries that describe the outer limits of the facility site in
combination with any parcel(s) owned by a participating landowner
that is contiguous with the facility site.
B.
The sound-level limits contained in this section do not apply to
the facility site or any parcel(s) owned by a participating landowner
that is contiguous with the facility site.
C.
The sound levels resulting from routine operation of a small wind turbines, as measured in accordance with the procedures described in Subsection E, shall not exceed 60 dBA at the property boundaries that describe the outer limits of the facility site combined with any parcel(s) owned by a participating landowner that is contiguous with the facility site.
D.
If the applicant submits the certification and acknowledgement required by § 300-8C, the municipal entity responsible for review and approval of the application under § 300-7A shall determine, for purposes of issuing its approval, that the pertinent sound-level limits under this section have been met, subject to the applicant's obligation to take remedial action as necessary under Subsection F.
E.
The Code Enforcement Officer may perform measurements of sound levels
resulting from routine operation of an installed small wind turbine
at the officer's own initiative or in response to a noise-related
complaint to determine compliance with the pertinent standards in
this section. Such measurements shall be performed as follows:
(1)
Measurements shall be obtained during representative weather conditions
when the sound of the small wind turbines is most clearly noticeable.
Preferable weather conditions for sound measurements at distances
greater than about 500 feet from the sound source include overcast
days when the measurement location is downwind of the small wind turbine
and inversion periods (which most commonly occur at night).
(2)
Sound levels shall be measured at least four feet above the ground
by a meter set on the A-weighted response scale, fast response. The
meter shall meet the latest version of the American National Standards
Institute's American Standard Specification for General Purpose Sound-Level
Meters (ANSI S1.4) and shall have been calibrated at a recognized
laboratory within the past year.
F.
The applicant shall operate the proposed small wind turbine in conformance with the sound level limits of this section. If, based on post-installation measurements taken in accordance with Subsection C, the Code Enforcement Officer determines that the applicable sound-level limits are not being met, the applicant shall, at the applicant's expense and in accordance with this article and in consultation with the Code Enforcement Officer, take remedial action deemed necessary by the Code Enforcement Officer to ensure compliance with those limits. Remedial action that the Code Enforcement Officer may require includes but shall not be limited to one or more of the following:
(1)
Modification or limitation of operations during certain hours or
wind conditions;
(2)
Maintenance, repair, modification or replacement of equipment;
(3)
Relocation of the wind turbine(s); and
(4)
Removal of the wind turbine(s), provided that the Code Enforcement
Officer may require removal of the wind turbine(s) only if the Code
Enforcement Officer determines that there is no practicable alternative.
A small wind turbine that is not generating electricity for
12 consecutive months shall be deemed a discontinued use and shall
be removed from the property by the applicant within 120 days of receipt
of notice from the Code Enforcement Officer, unless the applicant
provides information that the Planning Board deems sufficient to demonstrate
that the project has not been discontinued and should not be removed.
If the small wind turbine is not removed within this time period,
the municipality may remove the turbine at the applicant's expense.
The applicant shall pay all site reclamation costs deemed necessary
and reasonable to return the site to its preconstruction condition,
including the removal of roads and reestablishment of vegetation.
