Town of Cortlandville, NY Miscellaneous

Wind energy permits; review, inspection, and approval fees. The Town believes the review of applications for wind energy facilities and compliance monitoring of issued wind energy permits requires specific third-party expertise. In addition to the permit fees for the WECS system as provided in § 175-25A above, the owner of the WECS shall pay the costs of such review as follows:

(1)

An outside consultant, approved by the Town, to review the plans submitted by the applicant or its representative for compliance with this regulation and inspection of work, together with monitoring compliance with any issued permit for any WECS. All such expense shall be made by the applicant, or holder of such issued permit, if different, providing a cash advance payment to the Town Clerk prior to issuing such permit or such other form of advance payment as the Town Board may direct and approve.

(2)

Permit year annual report. The owner shall file annually a report of the condition and all maintenance and repair work to the WECS system, detailing any improvements, alterations or changes to any WECS or other structure of the system or any of its components, together with a review fee of $200 for each WECS. The report shall be certified by a licensed engineer that such work has not changed any permit condition. The Town, upon notice to the owner, may refer the report to consultant if it reasonably believes that any work may change or adversely impact a permit condition. The owner shall be responsible for any costs of any outside consultant, if necessary, to review the report.

(3)

Any costs associated with reviewing materials submitted by the owner or the review of any condition of a permit, including, but not limited to, ensuring the system continues to be safe and compliant with the terms of such permit issued shall be the expense of the owner of the system. Such expense shall be paid by the applicant/owner. Prior to incurring such costs, the Town agrees to provide the applicant/owner of the system with notice of such costs and reason for the same. The applicant/owner may protest the costs by filing a protest with the Town Clerk within 10 days of such notice. Said protest shall contain a statement of what is protested, and if a cost item is protested, then an estimate from an independent person for the costs protested shall be included. Notwithstanding a protest the Town may engage a consultant to review any submission by the applicant/owner of the system prior to approving the submission and all such expense and costs shall be an expense of the project (applicant/owner of the system). If any such expense shall not be paid the same shall constitute a violation of the permit and be deemed an expense in decommissioning the system or any part thereof in question.

The permit fee for Town Board approval for cutting or clearing in a green buffer area within a site shall be $100 per permit; no permit fee is necessary for maintaining agricultural uses within a green buffer zone.

Applications for approval of transfer of ownership or control pursuant to § 175-5F shall be submitted to the Town Board together with information explaining the proposed change of control or the transfer. Such information shall include the names and addresses of the parties whose interest is being changed or transferred together with their percentage of ownership being transferred and the names and addresses of each person, shareholder, member, partner or individual receiving such interest, together with a fee of $500 and such consultant fees as the Town Board finds necessary to review any financial information submitted therewith. The Town Board reserves the right to request such other information it may reasonably request and finds necessary to complete its review of such application.

Nothing in this chapter 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. Notwithstanding anything to the contrary provided herein, any and all Town agreements or permit conditions pertaining to a wind energy conversion system shall be filed with the Town and in place prior to the issuance of the wind energy permit, unless the approval for such wind energy conversion system permit expressly provides otherwise, including the host community agreement, decommission plan and proof of funds or escrow accounts, if required, related to the wind energy conversion system.

§ 175-26 Tax exemption.

The Town hereby exercises its right to opt out of the tax exemption provisions of Real Property Tax Law § 487 for large WECS, pursuant to the authority granted by paragraph 8 of that law.

§ 175-27 Real estate property value assurance plan.

The WEF owner/operator must provide the real estate property value assurance plan (REPVAP) to all nonparticipating landowners who: 1) own property within one mile, measured horizontally, from the project boundary, and 2) have not signed any mitigation waivers. This is a legally binding contract with the owner/operator and its successors and the landowners. Each one of these contracts must be submitted with the application. The elements of the real estate property value assurance plan are as follows:

Establishing the current value of the home. Three neutral real estate agents will be selected from a list of agents licensed in the State of New York and conducting business in the general project area. Each agent shall perform a comparative market analysis (CMA) of the property, in its current state, which will compare the property size and improvements to no less than three similar properties that are listed for sale, using generally accepted CMA methods. The two highest property valuations determined from each CMA will then be averaged to determine the "baseline" property value for REPVAP purposes only. The CMAs will be performed at the applicant's expense. The property owner hereby agrees to permit access to the property as required to perform the CMA inspection. Furthermore, the property owner hereby agrees to provide full disclosure of known defects of the property as may be required under New York State Law. The agents preparing the CMAs will provide a written copy of their report to both the property owner and the applicant. Both the applicant and the landowner reserve the right to reject CMA results only in the instance of a clear mistake by the agent.

Establishing the future value of the home if listed for sale. If at any time during the three-year period after a permit to erect the WEF, the property owner lists the property for sale with a realtor, then an updated comparative analysis will be prepared, again at the applicant's expense, using the same procedure outlined above. The updated CMA will explicitly take into account any changes in local market conditions for comparable properties unaffected by the wind project, as well as any improvements to the home and/or lot. In the event that the property has been listed for at least 12 months and sells for less than the market value determined by the updated CMA average, the applicant will pay the difference in value within 30 days after closing of the sale of the property. The twelve-month listing requirement may be waived by applicant if requested by the property owner at the applicant's sole discretion.

Other stipulations. The property owner hereby grants the applicant the right to purchase the property at the greater amount of the updated CMA average market value or the highest bona fide offer. In the event the property was offered for sale and did not sell or generate any acceptable bona fide offers within 12 months, the applicant will pay the difference in value between the updated CMA averaged market value and the highest bona fide offer, but only upon reasonable certification by the property owner's selling agent that the lack of an acceptable offer or sale was attributable solely to the close proximity of the property to the WEF, and not due to any other reason whatsoever including but not limited to market conditions or specific deficiencies related to the property that was otherwise assumed to be satisfactory. If the property does not sell within an eighteen-month period, the applicant will have to purchase the property at the updated CMA average market value.

Subject to the applicant's right to waive any or all these exclusions, the plan outlined herein does not cover a sale or transfer of the property under any of the following conditions:

(1)

If the property owner does not have clear and marketable title.

(2)

If the property has not been listed for sale for at least 12 months as a continuous period.

(3)

If the property is gifted or assigned to another person.

(4)

If the property is not listed for sale in accordance with Subsection B at some point.

(5)

If the property is not reasonably maintained in its current condition, reasonable wear and tear excepted.

Additional conditions.

(1)

A property owner can participate voluntarily in this plan, under the terms and conditions established herein, but the benefit is not assignable to new or subsequent property owners. If the applicant sells or transfers ownership of the WEF, it must assign, transfer, pledge, or otherwise dispose of its obligations and interests under this agreement in a form acceptable to the contracting landowners, unless released in writing by contracting land owners. If no agreement can be reached, then the applicant shall, before sale of the WEF, place into an escrow account, in favor of the landowner(s), the full value of the property, to be accessed by the landowner(s) if no sale is finalized within the time allocated in Subsection B.

(2)

In the event any landowner experiences health problems directly attributable to the operation of the WEF, such that the home is rendered uninhabitable, and unsellable, the listing period will be waived, and the applicant will be responsible for all medical expenses incurred, including but not limited to doctor visits, hospital visits and stays, medical procedures, medication and cost of lodging away from the home, up until such time as the applicant purchases the affected property at its full value before the approval and operation of the WEF reduced the property's worth. It will be the responsibility of the applicant to prove that the health problems (which were not present before, and now are) are not attributable to the applicant.

§ 175-28 Complaint resolution process.

All complaints shall be directed to the Town Code Enforcement Officer who will respond to the complainant within five business days after receipt of such complaint. The Town Code Enforcement Officer shall keep a log of any such complaints received.

Any complaints which cannot be resolved during the initial response shall be subsequently directed to the Planning Board for investigation, and any such investigation shall be undertaken with the full cooperation of the person/applicant/operator and in accordance with § 175-29, Enforcement; penalties for offenses.

If the complaint includes the character or quality of noise, then any subsequent investigation shall use best practices to evaluate the overall level, tonal, and/or temporal nature of the noise prompting the complaint. As outlined in § 175-29, Enforcement; penalties for offenses, the noise source will be shut down as may be needed to properly assess noise impacts.

Testing shall commence within 10 business days of the report of the initial investigation, but ultimately testing will be predicated upon conditions that facilitate adequate measurement of the noise source. Testing shall compare actual noise measurements at complainant's property line with and without noise source to confirm operation complies with established noise limits. If sound levels of the noise source exceed sound levels with noise source off by more than five dB, then the noise shall be deemed out of compliance with this regulation.

§ 175-29 Enforcement; penalties for offenses.

The Town Board shall appoint such Town staff or outside consultants as it sees fit to enforce this chapter.

Any person owning or operating a wind energy facility shall be responsible for the continued compliance of such facility with this chapter and the terms and conditions of the wind energy permit issued for such facility.

A violation of this chapter or any provision of the wind energy permit shall subject the owner or operator of the facility to a civil penalty of $1,000, payable within 10 days of the notice of the violation. In lieu of proceeding with enforcement of this chapter as an offense the Town may institute a civil proceeding to collect civil penalties in the amount of $1,000 for each violation. Each day's continued violation shall constitute and be deemed a separate additional violation.

Revocation of wind energy permit. Upon a finding of three separate violations by a court of competent jurisdiction by an owner or operator of the facility of a material provision of this chapter in any one-year period, the Town Board may hold a hearing for a revocation of any wind energy permit issued by such Board.

In lieu of a civil proceeding for enforcement of this chapter, the Town Board may elect to proceed to charge any owner or operator who violates any material provision of this chapter or be in noncompliance with any material term or condition of any permit issued pursuant to this chapter, or any order of the enforcement officer with an offense. Each day's continued violation shall constitute and be deemed a separate additional violation. Each such offense shall be punishable by a fine not exceeding $350 or imprisonment for a period not to exceed six months, or both for conviction of a first offense; for conviction of a second offense both of which were committed within a period of five years, punishable by a fine of not less than $350 nor more than $700 or imprisonment for a period not to exceed six months, or both; and, upon conviction for a third or subsequent offense all of which were committed within a period of five years, punishable by a fine not less than $700 nor more than $1,000 or imprisonment for a period not to exceed six months, or both. However, for the purpose of conferring jurisdiction upon courts and judicial officers generally, violations of this chapter shall be deemed misdemeanors and for such purpose only all provisions of law relating to misdemeanors shall apply to such violations.

In case of any violation or threatened violation of any of the provisions of this chapter, including the terms and conditions imposed by any permit issued pursuant to this chapter, in addition to other remedies and penalties herein provided, the Town may institute any appropriate action or proceeding to prevent such unlawful erection, structural alteration, reconstruction, moving and/or use, and to restrain, correct or abate such violation, to prevent the illegal act.

§ 175-30 Supersession.

This chapter shall supersede all Town local laws and other land use regulations and specifically New York Town Law § 131, § 133, § 266 and § 268 that are contrary and in conflict with the provisions of this chapter to the extent necessary to give this chapter full force and effect.