Town of Lewiston, NY
Niagara County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Lewiston as indicated in article histories. Amendments noted where applicable.]
GENERAL REFERENCES
Environmental Conservation Commission — See Ch. 19.
Noise — See Ch. 236.
Towers — See Ch. 320.
Zoning — See Ch. 360.
[Adopted 12-24-2009 by L.L. No. 3-2009 (Ch. 28 of the 1965 Code)]
This article shall be known as and may be cited as the "Small Wind Energy Conversion Systems (SWECS) Law of the Town of Lewiston." This article supersedes all laws or ordinances adopted prior to which are in conflict herewith the extent of such conflict.
A. 
The purpose of this article is to provide standards for small WECS designed for home, farm, and small WECS use on the same parcel, and that are primarily used to reduce consumption of utility power at that location.
B. 
The Town of Lewiston is primarily responsible for promoting the health, safety and general welfare of its residents and the environmental quality of its lands. This article is designed to preserve and protect the quality of life and the quality of the environment within the borders of the Town of Lewiston and to ensure that the health, safety, and general welfare continue to exist at the highest level and standards which the Town's residents have consistently required and expect.
A. 
The intent of this article is to protect the Town's interest in properly siting all small wind energy turbines and/or similar facilities in accordance with approved plans and in a manner consistent with sound land use.
B. 
This article may be periodically reviewed and revised by the Town Board in order to maintain compliance with the spirit and intent of this article.
As used in this article, the following terms shall have the meanings indicated:
ACCESSORY STRUCTURE
Any structure other than a wind turbine, related to the use and purpose of deriving energy from such turbines, located at the turbine facility.
APPLICANT
Any individual, estate, trust-partnership, association of two or more persons, limited liability corporation, or entity submitting an application to the Town of Lewiston for a special use permit for a small wind-energy-deriving tower facility.
BOARD
The Town of Lewiston Board, consisting of the Supervisor and the elected Town Council.
DEC
Department of Environmental Conservation.
DECOMMISSIONING
Removal of wind turbines, buildings, cabling, electrical components and restoration of the area to its original preconstruction condition.
EAF
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 State Codes, Rules, and Regulations.
EMI/RFI
Electromagnetic imaging and radio frequency interference. Interference to communication systems created by the scattering of electromagnetic signals.
EIS
Environmental Impact Study.
EPA
Environmental Protection Agency.
ESCROW ACCOUNT
Monies put aside by applicant for any additional studies and/or demolition.
FACILITY OWNER
Any entity or entities having any quality interest in the small wind energy conversion system (SWECS).
FALL-DOWN ZONE
The radius around the wind energy turbine within which portions of the turbine would fall, regardless of any claimed provisions for the breakoff of a portion of such turbine.
HEIGHT
This is the distance measured from grade level to the fixed nonrotating portion of the tower, as its maximum elevation.
ICE THROW
The most probable impact zone for ice being shed from the rotating blades of a wind turbine.
LICENSED PROFESSIONALS
All attorneys, engineers and professionals are required herein to be duly licensed in the State of New York.
MAINTENANCE/INSPECTIONS
The owner or operator of the small WECS is 100% liable and responsible for all safety and maintenance in compliance with the manufacturer's installation and recommendations.
METEOROLOGICAL (MET) TOWER
A temporary monopole with the sole purpose of collecting meteorological data. Temporary (no more than one year) towers may be allowed as part of a wind energy application where the requested tower meets all height, setback, and other requirements under this article. After use, the tower, as well as all pertinent buildings and any related construction material shall be removed at the owner's expense.
NACELLE
The portion of the wind turbine that connects the rotor to the support tower, and houses the generator, gearbox, drive train, and braking system.
NEC
National Electrical Code.
NYS PE
New York State Professional Engineer.
OCCUPIED BUILDING
Any building occupied on a permanent or periodic basis.
PARTICIPATING LANDOWNER
Any landowner on whose property all or a portion of the small wind energy conversion system is located or who has an agreement with the facility owner or operator.
RIGHT-OF-WAY
A strip of land acquired by reservation, dedication, forced dedication, prescription, or condemnation and intended to be occupied by a road, crosswalk, railroad, telephone, cable, electric transmission lines, oil or gas pipeline, water line, sanitary storm sewer, and other similar uses.
SEQRA
State Environmental Quality Review Act requiring an environmental impact analysis of a proposed action.
A. 
An action or class of actions identified as likely to have a significant impact on the environment, and an EIS long form (environmental impact study) is required.
B. 
An action or class of actions found not to have a significant effect on the environment and therefore will normally not require preparation of an EIS.
C. 
All actions identified as exempt or excluded action and not a Type 1 or Type 2 action in the authority having jurisdiction; NYS DEC, SEQRA procedures.
SETBACK
Minimum distance 1 1/2 times the combination of tower height and blade length from any property line. Distance measured from tower base to top of tower horizontally along the ground in a 360° radius.
SMALL STRUCTURE-MOUNTED - WIND ENERGY TURBINES (SSM-WETS)
A structure-mounted wind energy system that converts wind energy into electric energy through the use of equipment (e.g., base, blade, rotor, foundation generator, nacelle tower, transformer, vain, wire, batteries, etc.). The SSM-WETs are attached to a structure, wall or other elevated surface. SSM-WETs have main plate capacities that do not exceed 10 kilowatts; the total height of an SSM-WET being it does not exceed 15 feet as measured from the highest point of the adjacent roof or structure, excluding chimney, antenna or similar features.
SOUND PRESSURE LEVEL
The measurement of the sound pressure level shall be done according to the International Standard for Acoustic Noise Measurement Techniques for Wind Generators (IEC 61400-11).
SPECIAL USE PERMIT
A permit which is deemed allowable within a given zoning district but which is potentially incompatible with other uses, and therefore is subject to special standards and conditions set forth for such use subject to the approval of the Town Board and Town Attorney. It should be reviewed periodically.
STROBING or FLICKERING
The shadow effect caused by rotating blades.
SWECS
Small wind energy conversion system. A noncommercial wind energy conversion system consisting of a wind turbine, a tower, and associated control or conversion electronics, which has a rated capacity of not more than 10 kilowatts and which is intended to primarily reduce on-site consumption of utility power.
WIND ENERGY CONVERSION SYSTEM (WECS)
An electric-generating facility whose main purpose is to supply electricity, consisting of one or more wind turbines and other accessory structures and buildings, including but not limited to, substations, meteorological towers, electrical infrastructure, transmission lines, and other appurtenant structures and facilities.
A. 
The prime use on a parcel of land and supplies electrical power for off-site use.
B. 
The prime use of which is incidental and subordinate to another use on the same parcel and supplies electrical power for on-site use only.
WIND FARM
A system that has more than one turbine which includes properties owned by the same or related entities in any manner.
WIND TURBINE
A wind energy conversion system that converts wind energy into electricity through the use of a wind turbine generator, and includes the nacelles, rotor, blades, tower and pad transformer, if any.
A. 
Written application to the Town Clerk.
(1) 
At the discretion of the Town Board, any false or misleading statements in the application may subject the applicant to denial of the application without further consideration or opportunity for correction.
(2) 
The property owner, applicant or any other co-owners, including but not limited to any other entity, are severally and jointly liable for all matters related to the application.
(3) 
To initiate the review process contemplated by this article, including site plan review, an applicant for the small WECS shall remit an application fee to the Town in the amount of $35 per kilowatt of generating capacity. Said fee as well as renewal fees and bonds are nonrefundable.
(4) 
The applicant is responsible for all reasonable costs incurred by the Town of Lewiston, including but not limited to the employment of consulting assistance in reviewing and analyzing any engineering, strobing impact studies, technical reports or studies submitted by the applicant relative to the application, also including all relevant studies, reports, certifications, and approvals required by the Town of Lewiston to ensure compliance with these regulations. This may also include but not be limited to migratory bird patterns or other wildlife issues that may arise during the process.
(5) 
A narrative describing the proposed small WECS, including an overview of the project; the project location; total rated generating capacity, the constructed number, types, dimensions, respective manufacturers and a description of ancillary facilities.
(6) 
Costs incurred by the Town of Lewiston and Planning Board for consultation fees or other expenses in connection with the review of a proposed permit shall be charged to the applicant.
(7) 
No WECS, addition of a wind turbine to an existing WECS, or expansion of generating capacity shall be constructed unless a special use permit has been issued to the operator.
(8) 
Proof of ownership and/or easements shall be required.
(9) 
All property owners within 500 feet abutting or adjacent to the proposed small WECS shall be notified by the Town of Lewiston in writing.
(10) 
A site plan must be submitted showing the planned location of the wind turbine, property lines, setback lines, battery location, storage, and single-line diagram submission.
(11) 
Any and all documents related to decommissioning, including, but not limited to, permit withdrawal, contract cancellation, physical demolition and site remediation and any other documents requested by the Town of Lewiston shall be submitted prior to construction.
(12) 
A completed short form of the New York State EAF/SEQR will be provided with the application. Further, full compliance with SEQR will initially be required prior to project approval.
(13) 
Engineering drawing representative of the structural components of the tower construction including, but not limited to, the base and foundation.
(14) 
Provide certification by a registered NYS PE that the turbine operational design is capable of withstanding loading requirements as per the New York State Building Code.
(15) 
All recorded and nonrecorded access easements and all pertaining utility easements, copies of which shall be submitted with the application.
(16) 
The application shall contain a site plan, including, but not limited to, storage, usage, and disposal of all materials, lubricants, cleaning supplies, etc., in accordance with New York State DEC and local regulations. There shall be no storage of extraneous materials.
(17) 
No generation will be allowed before the final engineering (postconstruction) inspection by the Town Building Inspector. The facility operator is directed to have a complete set of all engineering documents and approvals, including, but not limited to, diagrams, drafts, schematics, including the postconstruction building and bond information to be filed with the Town of Lewiston Town Clerk's office prior to generation.
(18) 
The applicant shall provide and file with the Town Clerk a completed checklist provided in the application packet. (See Attachment A.[1])
[1]
Editor's Note: Attachment A is on file in the Town offices.
A plan for the proposed development of a small WECS shall be submitted with the application, and such plan shall be located on a lot a minimum of one acre. Said application should include the following:
A. 
A location map should be submitted showing boundary lines of the parcel the project will be located on, SBL number, copy of deed, proof of ownership, date, North arrow, and scale of the map.
B. 
Name and address of all owners of record of abutting parcels and those within 500 feet of the property lines of the parcel where development is proposed. Notification sent to all of the above through a form letter from the Assessor's office. Fee for same to be returned to the Assessor's office.
C. 
Enhanced pictures from specific locations may be required, and all pictures shall be no smaller than five inches by seven inches. A visual analysis of the small WECS as installed, which may include a computerized photographic simulation, demonstrating the visual impacts from nearby strategic vantage points. 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.
D. 
Plans to prevent the pollution of surface water or groundwater, erosion of soil both during and after construction, excessive runoff, and flooding of other properties, as applicable.
E. 
Preliminary report of the siting location prepared by the WECS applicant describing:
(1) 
Required improvements for construction activities, including those within the public's right-of-way or land controlled by the Town of Lewiston.
(2) 
Ice throw.
(3) 
Appropriate setback of tree lines, wetlands and water bodies to preserve the local wildlife.
F. 
NYS PE approval letter including soil logs, soil profile analysis, boring logs and stormwater runoff calculations for the area being disturbed.
G. 
Manufacturer's proof of compliance with the FCC and Federal Aviation Administration regulations shall be submitted prior to the finalization of the EIS and issuance of a special use permit by the Lewiston Town Board.
A. 
An application for a special use permit for a small WECS shall be signed on behalf of the applicant by the person preparing the same and with the knowledge of the landowner, contents and representations made therein, and attesting to the truth and completeness of the information. The landowner, if different than the applicant, shall also sign the application. At the discretion of the Lewiston Town Board, any false or misleading statement in the application may subject the applicant to denial of the application without further consideration or opportunity for correction.
B. 
Applications not meeting the requirements stated herein or which are otherwise incomplete shall be rejected by the Lewiston Town Board.
C. 
A public hearing shall be held within 62 days after the Lewiston Town Board meeting where the complete application is officially accepted. Notice of such hearing shall be published in the designated newspaper of the Town of Lewiston at least 10 days prior to the date thereof.
D. 
After the public hearing and after formally considering the application, the Town Board may approve, issue, or deny the permit within 30 days. Its decision shall be in writing and shall be supported by substantial evidence contained in the written record. The burden of proof for the grant of the permit shall always be upon the applicant.
E. 
The development of the small WECS and related structures shall be permitted with the approval of the Town Board. Small WECS and facilities shall be subject to the following requirements:
(1) 
To prevent harmful wind turbulence from existing structures, the minimum height of the lowest part of any horizontal-axis wind turbine blade shall be at least 30 feet above the highest structure or tree within a two-hundred-fifty-foot radius. Modification of this standard may be made when the applicant demonstrates that a lower height will not jeopardize the safety of the wind turbine structure.
(2) 
All small WECS shall be equipped with manual and automatic over-speed controls. Rotor and over-speed control design and fabrication shall conform with good engineering practices and be certified by the manufacturer.
(3) 
No individual tower facility shall be installed in any location where its proximity with existing fixed broadcast, or reception antenna (including residential reception antennas) for radio, television, wireless phone or other personal communication systems would produce electromagnetic interference with signal transmission or reception. Any unforeseen harmful interference must be mitigated to the satisfaction of the Town Board within 60 days of any verified complaint, or operation shall be ceased. The applicant must submit a mitigating plan within 14 days of the verified complaint. The system shall be operated such that no disruptive electromagnetic interference is caused.
(4) 
All small WECS shall be set back from rights-of-way, easements, public ways, power lines, and any preexisting structures by a distance of at least equal to its fall zone. Small WECS shall not be located closer to a property line than 1 1/2 times the total height of the facility.
(5) 
The ice-throw zone shall be provided by the manufacturer and shall supersede the fall-down zone if it exceeds the fall-down for setback purposes. (See § 352-4, Definitions, for fall-down zone.)
(6) 
The minimum distance between the ground and any part of the rotor blade shall be 30 feet at its lowest point of rotation.
(7) 
Except during short-term events, including utility outages and severe wind storms, the level of noise produced during the small WECS operation shall not exceed L 50 dBA indicated in any hour of the day (twenty-four-hour period) measured at a distance of 1,000 feet from the base of the small WECS or from the nearest residential structure and can be equaled or exceeded a maximum of 10% of the time or for six minutes total L(90). Measurement of sound can be done according to International Standard for Acoustic Noise Measurement Techniques for Wind Generators (IEC 61499-11). Testing may be required by the Town of Lewiston after construction demonstrating compliance with this requirement, as determined by the Town Engineer.
(8) 
Exterior lighting, other than the conventional lighting for maintenance purposes, on any structure associated with the small WECS, shall not be allowed except that which is specifically required by the Federal Aviation Administration.
(9) 
Only one small WECS per legal lot shall be allowed.
A. 
An emergency telephone number (for the current owner or authorized personnel) shall be posted so that the appropriate people may be contacted should any small WECS need immediate attention. Emergency numbers for Town personnel should also be posted, i.e., Town Police, Town Fire Department and Town Supervisor.
B. 
No brand names, logos or advertising shall be placed or painted on the tower, rotor, generator, or tail vane where it would be visible from the ground, except that a system's or tower's manufacturer's logo may be displayed on a system generator housing in an unobtrusive manner.
C. 
All related electrical lines shall be buried and marked in compliance with the NEC standards. A visible warning sign of HIGH VOLTAGE will be placed at the base of all small WECS. The letters of the sign shall be a minimum of six inches in height.
D. 
All wind turbines shall be equipped with an automatic braking, governing, or feathering system to prevent uncontrolled rotation, over-speeding and excessive pressure on the tower structure, rotor blades, and turbine components, or nacelles. This should meet or exceed the industrial standards for the size of the system and be certified by the manufacturer. The applicant shall have a manual filed with the Town Clerk also showing any revisions.
E. 
All monopoles must be unclimbable by design and protected by anticlimbing devices, as per industrial standards or climbing apparatus to prohibit access no lower than 12 feet from the ground.
F. 
Small WECS shall conform to the following specifications:
(1) 
Kilowatt limit: zero to 10 kilowatts maximum.
(2) 
Color. The color of all small WECS shall be reviewed as environmentally appropriate subject to Committee approval or industrial standards. The system's tower and blades shall be painted a nonreflective, unobtrusive color that blends the system and its components into the surrounding landscape to the greatest extent possible and shall incorporate nonreflective surfaces to minimize negative visual impact.
(3) 
Structure. All small WECS structures shall be a monopole tower.
The Town Code Enforcement Officer or his/her designee shall be granted access to the small WECS site at reasonable times for the purpose of inspections to determine that the facility complies with the conditions and restrictions of the ordinances of the Town of Lewiston.
A. 
Certificate of compliance with the New York State Uniform Fire Prevention and Building Code. Building permit applications of the small WECS shall be accompanied by standard drawings of the wind turbine structure, including the tower, base and footings. An engineering analysis of the tower showing compliance with the New York State Uniform Fire Prevention and Building Code and certified by a NYS PE shall also be submitted.
B. 
Compliance with Federal Aviation Administration regulations. Small WECS must comply with all applicable Federal Aviation Administration regulations, federal, state, county and Town regulations, including but not limited to all necessary preapprovals for installation in proximity to airfields/airports. Notification and proof thereof must be provided (with copies of such) to all authorities, included but not limited to Mercy Flight, Border Patrol, Coast Guard, and Sheriff's Department. There cannot be any lighting allowed on the rotating blades.
C. 
Compliance with National Electrical Code. Building permit applications for small WECS shall be accompanied by a line drawing of the electrical components. These drawings should be certified by a NYS PE to comply with the National Electrical Code.
D. 
Certification.
(1) 
All engineering certifications shall be approved in a two-step process:
(a) 
The application process; and
(b) 
A postconstruction verification.
(2) 
No generation will be allowed before a final engineering (postconstruction) report is approved by the Town Board in a session that issues the operating permit. Further, under the declaration construction document, the facility operator is directed to have a complete set of all engineering documents and approvals including, but not limited to diagrams, drafts, schematics, including the postconstruction building on the premises.
(3) 
All plans must bear the stamp of a NYS PE.
E. 
Maintenance/inspections.
(1) 
All repairs, replacements, modifications, changes, and improvements shall be made only with original equipment manufacturer's parts and shall be reported to the Town Engineer within 30 days. Notwithstanding replacement in kind, modification of the small WECS may occur without Town Board approval when:
(a) 
There will be no increase in total height;
(b) 
There will be no change in location of the small WECS;
(c) 
There will be no additional lighting or change in facility color;
(d) 
There will be no increase in noise produced by the small WECS; and
(2) 
The small WECS is not currently in violation of any conditional provisions of this article.
(3) 
Any physical modifications to the small WECS that alter the mechanical load, mechanical load path, major electrical or mechanical components shall require recertification by the manufacturer to industrial standards. Prior to making any physical modifications, the owner/operator shall submit a written request to the Town of Lewiston Code Enforcement Officer to determine whether the modifications require a special use permit or other actions.
(4) 
The Town of Lewiston Building Inspector, along with any licensed third-party professionals retained by the Town for conducting inspections of the small WECS, shall have the right, per annum, to accompany the owner or agent, on the premises of the facility, to inspect all parts of the small WECS installation. The Town of Lewiston may require that repairs or alterations be made. This inspection is at the Town's expense. The Town of Lewiston reserves the right to issue a stop-work/use order of the small WECS to preserve public safety at any time.
F. 
Insurance/liability. The applicant, owner, lessee or assignee shall maintain an insurance policy which will cover the installation and operation of the small WECS at all times.
A. 
All existing drainage and erosion control structures, such as diversions, ditches, and tile lines, shall be avoided, or appropriate measures shall be taken to maintain the design and effectiveness of the existing structures.
B. 
Active construction work areas inside of pasture areas shall be completely fenced to prevent livestock access, consistent with landowner agreements.
C. 
Tree removal is allowed when necessary, and replacement is encouraged to retain the character of the Town. All efforts will be made to retain champion trees.
D. 
All construction-generated airborne particulates shall be ameliorated as necessary.
All power transmission lines from the small WECS shall be underground unless specifically waived by the Town Board as part of the special use permit. Where the electrical components of an installation vary from the manufacturer's standard design or specifications, the proposed modifications shall be reviewed and certified by a NYS PE for compliance with requirements of the National Electrical Code and good engineering practices.
Height shall be limited to a maximum of 120 feet to comply with setbacks.
Scenic/view. No small WECS or facility shall be installed in a location where the Town Board determines it to be detrimental to the general neighborhood character. Final determination of permissible tower height and location shall be in accordance with the Town Law. No individual tower facility shall be installed in any location that would substantially detract from or block portions of a scenic view, as viewed from any public road right-of-way, publicly owned land or privately owned land within the Town of Lewiston. The Town of Lewiston reserves the right to refuse a permit or require any changes based solely on this clause.
The wind tower permit is solely for the purpose of a small WECS. No collocations or any other use whatsoever is permitted for any other purpose.
All violations of any part of this article are subject to fines, levies, civil actions, attorney fees and all related costs.
A. 
Decommissioning shall include removal of wind turbines, buildings, cabling, electrical components, roads, foundations to the depth of 36 inches below grade level, and any other associated facilities.
B. 
Disturbed earth or backfill shall be returned, graded, and reseeded, unless the owner requests in writing that the access roads or other land surface areas not be restored.
C. 
If a small WECS is not maintained in operational condition for a period of one year and/or poses a potential safety hazard, the owner shall take expeditious action to remedy the situation. The Town of Lewiston reserves the authority to abate any hazardous situation and to pass the cost of such abatement on to the owner of the system. If the Town of Lewiston determines that the small WECS has been abandoned and/or poses a safety hazard, the system shall be removed, by the owner, within 45 days of written notice to the owner.
As the engineering requirements for the Small Structure Mounted - Wind Energy Turbine are site-specific, requiring a specific engineering report during preliminary application procedures, this committee would defer to existing state and county laws regarding placement and regulation of Small Structure Mounted - Wind Energy Turbine units.
[Adopted 12-10-2012 by L.L. No. 2-2012]
This article shall be known as and may be cited as the "Commercial Wind Energy Conversion Systems (WECS) Law of the Town of Lewiston." This article supersedes all laws or ordinances adopted prior hereto which are in conflict herewith, to the extent of such conflict.
The Town of Lewiston is primarily responsible for promoting the health, safety and general welfare of its residents and the environmental quality of its lands. This article is designed to preserve and protect the quality of life and the quality of the environment within the borders of the Town of Lewiston and to ensure that the health, safety and general welfare continue to exist at the highest level and standards which the Town's residents have consistently required and expect.
A. 
The intent of this article is to protect the Town's interest in properly siting all wind energy turbines and/or similar facilities in accordance with approved plans and in a manner consistent with sound land use.
B. 
This article will be periodically reviewed and revised in order to maintain compliance with the spirit and intent of this article.
C. 
This article does not apply to the installation of small wind energy conversion systems as defined hereunder.
As used in this article, the following terms shall have the meanings indicated:
ACCESSORY STRUCTURE
Any structure, other than a wind turbine, related to the use and purpose of deriving energy from such turbines, located at the turbine facility.
APPLICANT
Any individual, corporation, estate, trust-partnership, joint-stock company, association of two or more persons, limited liability company or entity submitting an application to the Town of Lewiston for a special use permit for a wind-energy-deriving tower facility.
BOARD
The Lewiston Town Board, consisting of the Supervisor and the elected Town Council.
DEC
Department of Environmental Conservation.
DECOMMISSIONING
Removal of wind turbines, buildings, cabling, electrical components and restoration of the area to previous conditions.
EAF
Environmental Assessment Form used in the implementation of the SEQRA as that term is defined in Part 617 of the Title 6 of the New York Codes, Rules and Regulations.
EIS
The Environmental Impact Study.
EMI/RFI
Electromagnetic imaging and radio frequency interference. Interference to communication systems created by the scattering of electromagnetic signals.
EPA
Environmental Protection Agency.
ESCROW ACCOUNT
An account maintained by the Town for the deposit of funds paid by the applicant for any studies, engineering review, legal fees and other expenses reasonably expected to be incurred by the Town in considering any application for a permit to operate a WECS. An initial deposit may be required of the applicant to be supplemented by further deposits as expenses are incurred by the Town and paid from the account. In the event any balance remains after the completion of the review process, such funds will be returned to the applicant.
FACILITY OWNER
Any entity or entities having any equity interest in the wind energy conversion system.
FALL-DOWN ZONE
The radius around the wind energy turbine within which portions of the turbine would fall, regardless of any claimed provisions for the breakoff of a portion of such turbine.
HEIGHT
The distance measured from grade level to the fixed nonrotating portion of the tower at its maximum elevation.
HOST COMMUNITY AGREEMENT
An agreement with any applicant to compensate the Town for anticipated ongoing expenses and adverse environmental impacts to the community.
LICENSED PROFESSIONALS
All attorneys, engineers and professionals are required herein to be duly licensed in the State of New York.
METEOROLOGICAL (MET) TOWER
A temporary monopole whose sole purpose is for collection of meteorological data. Temporary (no more than one year) towers may be allowed as part of a wind energy application where the requested tower meets all height, setback and other requirements under the law. After use, the tower, as well as all pertinent buildings and any related construction material, shall be removed at the owner's expense.
NACELLE
The portion of the wind turbine that connects the rotor to the support tower and houses the generator, gearbox, drive train, and braking system.
NEC
National Electrical Code.
NONPARTICIPATING LANDOWNER
Any property owner adjacent to or bordering the wind energy conversion system except those on whose property all or a portion of the wind energy conversion system is located or who has an agreement with the facility owner or operator.
NYS PE
New York State Professional Engineer.
OCCUPIED BUILDING
Any building occupied on a permanent or periodic basis.
PARTICIPATING LANDOWNER
Any landowner on whose property all or a portion of the wind energy conversion system is located or who has an agreement with the facility owner or operator.
RIGHT-OF-WAY
A strip of land, including, but not limited to, acquired by reservation, dedication, forced dedication, prescription, or condemnation and intended to be occupied by a road, crosswalk, railroad, telephone, cable or electric transmission lines, an oil or gas pipeline, a water line, a sanitary storm sewer, and other similar uses.
SEQRA
State Environmental Quality Review Act, requiring an environmental impact analysis of a proposed action.
A. 
An action or class of actions identified as likely to have a significant impact on the environment, and an EIS (Environmental Impact Study) may be required.
B. 
An action or class of actions found not to have a significant effect on the environment and which therefore does not require processing through SEQR.
C. 
All actions not identified as a Type 2 Action or a Type 1 Action as defined under SEQRA.
SMALL WIND ENERGY CONVERSION SYSTEM
A noncommercial wind energy conversion system consisting of a wind turbine, a tower, and associated control or conversion electronics, which has a rated capacity of not more than 20 kW and which is intended to primarily reduce on-site consumption of utility power.
SOUND PRESSURE LEVEL
The measurement of the sound pressure level shall be done according to the International Standard for Acoustic Noise Measurement Techniques for Wind Generators (IEC 61400-11), or other accepted procedures.
SPECIAL USE PERMIT
A permit which is deemed allowable within a given zoning district but which is potentially incompatible with other uses and, therefore, is subject to a special standards and conditions set forth for such use, subject to approval of the Town Board and Town Attorney. A special use permit will provide for an expiration date and may be renewed upon submission to and review of the Town Board.
STROBING or FLICKERING
The shadow effect caused by moving blades.
WIND ENERGY CONVERSION SYSTEM (WECS)
An electric-generating facility whose main purpose is to supply electricity, consisting of one or more wind turbines and other accessory structures and buildings, including, but not limited to, substations, meteorological towers, electrical infrastructure, transmission lines and other appurtenant structures and facilities.
A. 
The prime use on a parcel of land and supplies electrical power for off-site use.
B. 
The prime use of which is incidental and subordinate to another use on the same parcel and supplies electrical power for on-site use only.
WIND FARM
A system that has more than one turbine, which includes properties owned by the same or related entities in any manner.
WIND TURBINE
A wind energy conversion system that converts wind energy into electricity through the use of a wind turbine generator, and includes the nacelles, rotor, blades, tower and pad transformer, if any.
A written application shall be submitted to the Town Clerk. If at any time during the review process the Town Board determines, in its discretion, that any false or materially misleading statements are contained in the application, it may deny the application without further consideration.
A. 
The property owner and applicant as well as any other co-owners must execute the application.
B. 
To initiate the review process contemplated by this article, including site plan review, an applicant for the wind energy conversion system shall remit an application fee to the Town in the amount of $300 per megawatt of generating capacity. Said fee, as well as renewal fees and bonds, is nonrefundable. This nonrefundable fee is made in addition to those consulting fees and legal fees which are reasonably related to the consideration and review of any application and any fees as permitted by SEQRA.
C. 
The applicant is responsible for all reasonable costs incurred by the Town of Lewiston, including, but not limited to, the employment of consulting assistance in reviewing and analyzing any engineering, strobing impact studies, technical reports or studies submitted by the applicant relative to the application. The applicant is also responsible for the Town's cost incurred to complete all other studies, reports, certifications and approvals required by the Town of Lewiston to ensure compliance with these regulations and SEQRA, including, but not limited to, bird migration impacts, sound impacts, soil erosion impacts or other environmental impacts. Any and all studies to be submitted by the applicant will be made by qualified licensed engineers or consultants having expertise in the specific areas addressed in the application.
D. 
The application will include a description of the facility and the services such facility will provide, including but not limited to a market study evidencing the likely success of the applicant's long-range plans and the potential for any future expansion of the facility within the Town. Any and all submissions should be completed by an NYS PE and include a market study performed by a qualified consultant.
E. 
A narrative describing the proposed wind energy conversion system, including an overview of the project, the project location, the total rated generating capacity, the constructed number, types, dimensions, respective manufactures and a description of ancillary facilities, shall be submitted.
F. 
Costs incurred by the Town of Lewiston and Planning Board for consultation fees or other extraordinary expense in connection with the review of a proposed permit shall be charged to the applicant. The applicant will be required to deposit an amount reasonably related to the anticipated expenses in escrow with the Town.
G. 
No wind energy facility, addition of a wind turbine to an existing wind energy facility, or expansion of generating capacity shall be constructed unless a special use permit has been issued to the facility owner or operator.
H. 
The permit application or amended permit application shall be accompanied by a nonrefundable fee as set forth in Subsection B of this section. Any repair or replacement in kind shall require modification and inspection.
I. 
An affidavit or similar evidence of agreement between the property owner and the facility owner or operator, demonstrating that the facility owner and/or operator has the permission of the property owner to apply for a necessary extended contract for construction and operation of the wind energy conversion system, shall be submitted.
J. 
Identification, notification and proof of notification of the properties within 1,500 feet of where the proposed wind energy conversion system will be located, and the properties abutting or adjacent to where the wind energy conversion system will be located, shall be submitted.
K. 
A site plan showing the planned location of each wind turbine, property lines, set back lines, access road and turnout locations, substation(s), electrical cabling from the wind energy conversion system to the substation(s), ancillary equipment, buildings, and structures showing, but not limited to, meteorological towers, associated transmission lines, any underground lines and the layout of all structures within the geographical boundaries of any applicable setback, shall be submitted.
L. 
Documents related to decommissioning, including, but not limited to, permit withdrawal, contract cancellation, physical demolition and site remediation, and any other documents requested by the Town of Lewiston, shall be submitted.
M. 
A completed SEQR full EAF (Part I) with project approval shall be submitted.
N. 
An engineering drawing representative of the structural components of the tower construction, including, but not limited to, the base and foundation, shall be submitted.
O. 
Certification by a registered NYS PE that the turbine's operational design is capable of withstanding loading requirements as per industrial design standards shall be submitted.
P. 
Copies of all recorded and nonrecorded access easements and all pertaining utility easements shall be submitted with the application.
Q. 
A transportation plan showing access to the site and describing the impacts of of the proposed energy project on the local and regional road system during construction and operation shall be submitted.
R. 
A revegetation plan that complies with the New York State Department of Agriculture and Markets' restoration guidelines shall be submitted and must address how areas that are temporarily disturbed during construction will be remediated and must contain plans for remediation of all land disturbed by construction. A nonrefundable remedial bond, based upon submission as determined by the Town Engineer, shall be provided.
S. 
The application shall contain a site plan, including, but not limited to, storage, usage, and disposal of, including, but not limited to, all materials, lubricants, cleaning supplies, etc., in accordance with DEC regulations. There shall be no storage of extraneous materials.
T. 
Approval.
(1) 
All engineering certifications shall be reapproved in a three-step process:
(a) 
The application process;
(b) 
The construction process;
(c) 
A postconstruction verification.
(2) 
No generation will be allowed before final engineering (postconstruction) report approved by the Town Board in a session that issues an operating permit. Further, under the declaration construction document, the facility operator is directed to have a complete set of all engineering documents and approvals, including, but not limited, to diagrams, drafts, schematics, including the postconstruction building, and bond information on the premises.
A plan for the proposed development of a wind-energy-deriving tower facility shall be submitted with the application, and such plan shall show and include:
A. 
A location map showing boundary lines of the parcel the project will be located on, date, North arrow, and scale of the map.
B. 
The name and address of all owners of record of abutting parcels and those within 1,500 feet of the property lines of parcel where developments is proposed. A notification of the proposed development shall be sent to these property owners by the Town, and the expense of providing such notification shall be a charge to the developer.
C. 
Enhanced pictures from specific locations are required by the Town Board, and all pictures shall be no smaller than five inches by seven inches.
D. 
Plans to prevent the pollution of surface water or groundwater, erosion of soil both during and after construction, excessive runoff, and flooding of other properties, as applicable. These should include preconstruction and postconstruction drainage calculations for the site completed by a certified NYS PE.
E. 
A preliminary report prepared by a competent consultant, including:
(1) 
Required improvements for construction activities, including those within the public's right-of-way or land controlled by the Town of Lewiston.
(2) 
Wind energy maps to the proposed site.
(3) 
Topography maps with a description of project.
(4) 
Proposed safety measures to mitigate wind-energy-deriving tower structural failure.
(5) 
Proposed mitigating measures for excessive noise.
(6) 
Proposed mitigating measures for strobing effect.
F. 
A description of the applicant's long-range expansion expectations within the Town.
G. 
An NYS PE approval letter showing, but not limited to, soil logs, soil profile analysis, boring logs and storm water runoff calculations for the area being disturbed.
H. 
Proof of compliance with the FCC and FAA regulations, which shall be submitted either before finalization of an EIS (if required) or prior to the issuance of a special use permit by the Lewiston Town Board.
A. 
An application for a special use permit for a wind energy conversion system facility shall be signed on behalf of the applicant by the person preparing the same and with the knowledge of the landowner, contents and representations made therein, and attesting to the truth and completeness of the information. The landowner, if different than the applicant, shall also sign the application. At the discretion of the Town Board, any false or misleading statement in the application may subject the applicant to denial of the application without further consideration or opportunity for correction.
B. 
Applications not meeting the requirements stated herein or which are otherwise incomplete shall be rejected by the Board.
C. 
Within 62 days after the Town Board meeting where the complete application is officially accepted, a public hearing shall be held. Notice of such hearing shall be published in the official newspaper of the Town at least 10 days prior to the date thereof. In order that the Town may notify nearby landowners, the applicant, at least three weeks prior to the date of said public hearing, shall be required to provide the names and addresses of all landowners whose property is located within 1,500 feet of any property line of the lot on which the proposed wind energy conversion system is proposed to be located. Another public hearing may be required if the Town requires the completion of an EIS.
D. 
After the public hearing, the completion of the SEQR process and after formally considering the application, the Board may approve, issue, or deny a special use permit. Its decision shall be in writing and shall be supported by substantial evidence contained in the written record. The burden of proof for the grant of the permit shall always be upon the applicant.
E. 
The development of wind energy conversion systems and related structures shall be permitted with the approval of the Town Board, and no permit will be issued unless the following standards are met:
(1) 
No individual tower facility 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. This is to be certified by a certifying agency to be determined by the Town Board.
(2) 
No individual tower facility shall be installed in any location where its proximity with existing fixed broadcast or reception antenna (including residential reception antennas) for radio, television, wireless phone or other personal communication systems would produce electromagnetic interference with signal transmission or reception. Any unforeseen interference must be corrected to the satisfaction of Board within 60 days of any complaint.
(3) 
All information regarding requirements for migratory bird flyways with documents by the EPA, New York State DEC or U.S. Fish and Wildlife Service shall be submitted.
(4) 
All wind turbine towers shall be set back from adjacent property lines, rights-of-way, easements, public ways, power lines (not to include individual residential feed lines), and any preexisting structures by a distance at least equal to the tower height plus an additional 50% of its height, as certified by a New York State licensed professional engineer. Setbacks shall be a) 500 feet from the nearest site boundary line; b) 500 feet for the row of public roads; and c) 1,000 feet from the nearest off-site residence, measured from the exterior of such residence. Additional setbacks may be required by the Town Board in order to provide for the public safety, health, and welfare. The Board may waive setback requirements from adjacent properties if such adjacent properties will also be participating in the wind project.
(5) 
The ice-throw zone shall be certified by an NYS PE, and the results should determine the safety zone.
(6) 
The minimum distance between the ground and any part of the rotor blade shall be 30 feet.
(7) 
All actions will be taken to mitigate sound and visual aspects from the wind-generation activity whenever possible. Natural foliage and trees, etc., shall be planted if determined to be required by the Town Board. The level of noise produced during wind tower operation shall not exceed L 50 dBA indicated in any hour of the day (twenty-four-hour period) measured at a distance of 1,000 feet from the base of the wind tower or from the nearest residential structure and can be equaled or exceeded a maximum of 10% of the time or for six minutes total. Measurement of sound can be done according to International Standard for Acoustic Noise Measurement Techniques for Wind Generators (IEC 61499-11). Independent certification shall be provided before and after construction demonstrating compliance with this requirement.
F. 
Minimum notice and safety considerations shall be required, and no permit will be issued unless the following standards are met:
(1) 
An emergency telephone number (current owner, authorized personnel) shall be posted so that the appropriate people may be contacted should any wind energy conversion system need immediate attention. Emergency numbers for Town Personnel should also be posted, i.e., Town Police, Town Fire Department and Town Supervisor. Caution signs shall be placed at the maximum engineer-calculated ice-throw or blade-throw distance warning of ice and blade throws. Sign should have "CAUTION: FALLING OBJECTS" printed in bold thereon. In addition, the owner's name, as well as an appropriate contact person, address and telephone number, shall be printed on this sign. These signs should be posted at all access and egress sites. Any signage should conform with Town of Lewiston ordinances.
(2) 
All electrical lines shall be placed in compliance with the NEC standards and appropriately marked and identified as specified by the Town. A visible warning sign of "HIGH VOLTAGE" will be placed at the base of all wind energy conversion systems. The letters on the sign shall be a minimum of six inches in height.
(3) 
All wind turbines shall be equipped with an automatic braking, governing, or feathering system to prevent uncontrolled rotation, overspeeding, and excessive pressure on the tower structure, rotor blades, and turbine components or nacelles. This should meet or exceed the industrial standards for the size of the system.
(4) 
Access to the tower shall be limited by means of a fence six feet high around the tower base, with a locking gate, and by limiting tower-climbing apparatus to no lower than 12 feet from the ground. All towers or poles must be unclimbable by design or protected by anticlimbing devices.
(5) 
Wind energy conversion systems shall conform to the following specifications:
(a) 
KW Range: < 10 kW maximum for all noncommercial wind turbines; > 10 kW for commercial turbines.
(b) 
Color: The color of all wind energy conversion systems shall be reviewed as environmentally appropriate and will be subject to committee approval.
(c) 
Structure: All commercial wind energy conversion system structures shall be monopole towers.
The Town Code Enforcement Officer or his/her designee shall be granted access to the wind energy conversion system site at reasonable times for the purpose of inspections to determine that the facility complies with the conditions and restrictions of the provisions of the ordinances of the Town of Lewiston.
A. 
Certificate of compliance with the Uniform Building Code. Building permit applications for wind energy conversion systems shall be accompanied by standard drawings of the wind turbine structure, including the tower, base and footings. An engineering analysis of the tower showing compliance with the Uniform Building Code and certified by an NYS PE shall also be submitted.
B. 
Compliance with FAA regulations. Wind energy conversion systems must comply with all applicable FAA regulations and federal, state, county and Town regulations, including but not limited to all necessary preapprovals for installation in proximity to airfields/airports. Notification and proof thereof must be provided (with copies of such) to all authorities, including but not limited to: 1) Niagara Falls Air Force Base; 2) Niagara Falls International Airport; 3) Mercy Flight; 4) Border Patrol; 5) Coast Guard; 6) Sheriff's Department. There shall not be any lighting on the rotating blades.
C. 
Compliance with National Electric Code. Building permit applications for wind energy conversion systems shall be accompanied by a line drawing of the electrical components. These drawings should be certified by an NYS PE to comply with the National Electrical Code.
D. 
Transfer.
(1) 
A permit issued pursuant to this article may not be transferred without the written approval of the Town of Lewiston. A transfer includes the following actions:
(a) 
Transfer of any wind energy facility;
(b) 
Transfer of a special use permit;
(c) 
Sales exceeding 30% of the equity of the entity owning such facility.
(2) 
The Town of Lewiston Board reserves the right in its sole discretion to determine whether any transferee has the technological and financial ability to meet and comply with the terms and conditions of any proposed transfer of a wind energy facility.
(3) 
Transfers shall not be approved if there are any unfulfilled obligations, permit violations or pending legal actions regarding the facility proposed to be transferred. No transfer shall eliminate the liability of the transferor or any other party having an interest in the facility unless the entire interest of the transferor and all its facilities in the Town are transferred with Town Board approval.
E. 
Modifications to facilities. Owners and parties having an interest in a facility are required to notify the Town Board in writing of any and all equipment recalls, changes to the design or construction of a permitted facility during and after construction and proposed changes of the owner/operator of the facility. Failure to provide such written notice within 10 days of such occurrence will result in the revocation of the facilities permit to operate in the Town.
F. 
Certification. All engineering reports, studies and certifications of completed work prepared by the applicant must be approved by the Town during 1) the application process; 2) the construction process; and 3) postconstruction verification that all work has been properly completed. No power generation will be allowed before the final engineering (postconstruction) report is approved by the Town Board.
G. 
Maintenance/inspections. The owner or operator of the wind energy conversion system must submit, on an annual basis, a summary of maintenance and safety issues to the Town of Lewiston.
(1) 
The owner or operator of a wind energy conversion system shall retain an NYS PE familiar with the facility to prepare and submit to the Town of Lewiston a written report which identifies any material repairs or material alterations made to the facility and evidence that said repairs or alterations do not pose a threat to public safety.
(2) 
Any physical modifications to the wind energy conversion system that alter the mechanical load, mechanical load path, or major electrical or mechanical components shall require recertification by the manufacturer and be in compliance with industry standards. Prior to making any physical modifications, the owner or operator shall submit a written request to the Town of Lewiston Code Enforcement Officer and shall conform with the Town of Lewiston Code. The Code Enforcement Officer shall determine whether the modifications require a special use permit modification or other actions.
(3) 
The Town of Lewiston Building Inspector, along with any licensed third-party professionals retained by the Town may, on reasonable notice to the owner or operator, inspect all parts of the wind energy conversion system facility. In the event any violations are identified, the Town of Lewiston may require that repairs or alterations be made. The reasonable expense incurred by the Town to conduct these inspections shall be paid by the owner/operator of the facility. The Town of Lewiston may issue a stop-work order and/or stop the use of the wind energy conversion system in the event any violations exist which are a threat to public safety or in the event the owner or operator does not comply with any requests by the Town to correct violations.
H. 
Insurance/liability. The applicant, owner, lessee or assignee shall maintain a current insurance policy which will cover installation and operation of the wind energy conversion system at all times. As part of the application review process, the Town of Lewiston may require that the applicant is carrying sufficient liability, workers' compensation, etc., during installation and operations of proposed facility. Limits for said policy shall be set according to the size and scope of each project. The Town may also require that it be named an additional insured on any policies of insurance required to be maintained by the owner or operator of the facility.
I. 
Emergency preparedness. The owner/operator of any WECS shall establish a safety/emergency preparedness plan. Such plan shall be established and put into effect within six months of the start of operation. Copies of the plan shall be on file with the Town of Lewiston and updated every two years. In the event such plan is not implemented, the facility (WECS) shall immediately cease operation until such plan is put into effect. Copies of the plan are to be provided to the local first responders, including but not limited to the local Police and Fire Departments.
J. 
Changes. Notwithstanding the requirements of this section, replacement in kind or modification of a wind energy facility may occur without Town Board approval when 1) there will be no increase in total height; 2) there will be no change in location of the WECS; 3) there will be no additional lighting or change in facility color; 4) no increase in noise will be produced by the WECS; and 5) the WECS is not currently in violation of any condition or provision of this article.
A. 
The applicant shall, if possible, avoid dividing larger parcels into smaller parcels by locating access roads along the edge of fields and in nonagricultural areas. Roadways should only be constructed to the size necessary for the equipment or vehicles being used for putting up or taking down the systems.
B. 
The surface of access roads constructed through agricultural fields shall be level with the adjacent field surface.
C. 
Where necessary, culverts and waterbars shall be installed to maintain natural drainage patterns at the developer's expense. Drainage design shall be in compliance with all state, county and Town regulations. (See the Town of Lewiston Drainage Map.)[1]
[1]
Editor's Note: The Drainage Map is on file in the Town offices.
D. 
All existing drainage and erosion control structures such as diversions, ditches, and tile lines shall be avoided, or appropriate measures shall be taken to maintain the design and effectiveness of the existing structures. Any structures disturbed during construction shall be repaired to original condition within 30 days, unless such structures are to be eliminated based on a new design and preapproved by the Town of Lewiston.
E. 
All vehicle and equipment traffic and parking shall be limited to access roads and/or designated work areas, such as tower sites and laydown areas. All topsoil must be stripped from such areas in accordance with the New York Agriculture and Markets Law.
F. 
Topsoil from work areas (tower sites, parking areas, "open-cut" electrical cable trenches, along access roads) shall be stockpiled separate from other excavated material (rock and/or subsoil). At least 50 feet of temporary workspace is needed along "open-cut" electric cable trenches for proper topsoil segregation. All topsoil will be stockpiled immediately adjacent to the area where stripped/removed and shall be used for restoration on that particular site. Topsoil stockpile areas shall be clearly designated in the field and on the on-site working set of construction drawings.
G. 
A minimum depth of 40 inches of cover will be required for all buried electric cables in cropland, hay land and improved pasture. In unimproved grazing areas and land permanently devoted to pasture, a minimum depth of 36 inches of cover will be required. In areas where the depth of soil over bedrock ranges from zero to 48 inches, the electric cables shall be buried entirely below the top of the bedrock or at the depth specified for the particular land use.
H. 
All excess subsoil and mixed construction debris shall be removed from the site. On site disposal of such material may be allowed if approved by the landowner and, where applicable, in accordance with the SEQRA findings and the New York State DEC, with appropriate consideration given to any possible agricultural or environmental impacts.
I. 
Work areas inside of pasture areas shall be completely fenced to prevent livestock access, consistent with landowner agreements.
J. 
All pieces of wire, bolts and other unused metal objects will be picked up, magnetically swept, and properly disposed of as soon as practical after unloading and packing of construction components so that these objects will not be mixed with any topsoil.
K. 
Excess concrete will not be buried or left on the surface in active agricultural areas. Concrete trucks will be washed outside of the active agricultural areas as directed by landowner. (Any permits necessary for disposal under local, state and/or federal laws and regulations must be obtained by the contractor with the cooperation of the landowner when required.) The contractor shall be responsible for all disposals and approvals.
L. 
Trees shall be removed when necessary and replaced according to the landowner. Consideration will be given to retaining champion trees.
M. 
Approved dust control and airborne and ambient air control protection devices shall be employed during construction.
All power transmission lines from the wind energy conversion system to nonsite substations shall be underground unless specifically waived by the Town Board as part of the special use permit. Where the electrical component of an installation varies from the manufacturer's standard design or specifications, the proposed modifications shall be reviewed and certified by an NYS PE for compliance with requirements of the National Electrical (Underwriters) Code and good engineering practices.
The height of any energy-deriving tower shall be limited to the minimum required to provide needed energy by demonstrated demand. The maximum height shall be 420 feet.
Scenic view. No wind energy conversion system or facility shall be installed in a location where the Town Board determines it to be detrimental to the general neighborhood character. Final determination of permissible tower height and location shall be in accordance with the Town Law. No individual tower facility shall be installed in any location that would substantially detract from or block a portion of the view of a scenic view, as viewed from any public road right-of-way, publicly owned land or privately owned land within the Town of Lewiston without acceptable mitigation. The Town of Lewiston reserves the right to refuse a permit or require any changes based solely on this clause.
Permits shall be issued for the sole purpose of a wind energy conversion system. No co-location or any other use of the towers or accessory structures shall be permitted for any other purpose.
A. 
The facility owner and operator shall, at his/her expense, complete decommissioning of the wind energy conversion system or individual wind turbines within 12 months after the end of the useful life of the facility or individual wind turbines.
B. 
The wind energy conversion system or individual wind turbines will be presumed to be at the end of its/their useful life, dead or abandoned if no electricity is generated for a continuous period of 12 months.
C. 
Decommissioning shall include removal of wind turbines, buildings, cabling, electrical components, roads, foundations to a depth of 36 inches below grade level, and any other associated facilities.
D. 
Disturbed earth or backfill shall be returned, graded, and reseeded, unless the landowner requests in writing that the access roads or other land surface areas not be restored.
E. 
An independent and certified NYS PE shall be retained to estimate the total cost of decommissioning (decommissioning costs) without regard to salvage value of the equipment and the cost of decommissioning net salvage value of the equipment (net decommissioning costs). A twenty-year decommissioning bond will be provided by the owner/operator and will be transferable to any future owner/operator. A certified copy of the decommissioning bond will be on file with the Town Clerk.
F. 
The facility owner or operator shall post and maintain decommissioning funds in an amount equal to net decommissioning costs, provided that at no point shall decommissioning funds be less than 25% of decommissioning costs. The decommissioning funds shall be posted and maintained with a bonding company or federal or state lending institution chosen by the facility owner or operator and participating landowner posting the financial security, provided that the bonding company or lending institution is authorized to conduct such business within New York State and is approved by the Town of Lewiston.
G. 
Decommissioning funds may be in the form of a performance bond acceptable to the Town Engineer and approved by the Town Attorney, prior to issuing a building permit.
H. 
If the facility owner or operator fails to complete decommissioning within the period prescribed, the landowner shall have one year to complete decommissioning.
I. 
If neither the facility owner, nor the operator, nor the landowner, completes the decommissioning within the periods prescribed, then the Town of Lewiston may take such measures as necessary to complete decommissioning. The entry into and submission of evidence of a participating landowner agreement to the Town of Lewiston shall constitute agreement and consent of the parties to the agreement and their respective heirs, successors and assigns that the Town of Lewiston may take such action as necessary to implement the decommissioning plan.
J. 
The escrow agent shall release the decommissioning funds when the facility owner or operator has demonstrated, and the municipality concurs, that decommissioning has been satisfactorily completed, or upon written approval of the municipality in order to implement the decommissioning plan.
K. 
The decommissioning may be extended for a period of one year upon the written request of the owner, operator or landowner. Such request must be made during the initial decommissioning period and an extension of up to one year may be permitted.
The applicant and the owner/operator and/or landowner will enter into a host community agreement designed to fairly compensate the Town for the actual ongoing costs to the Town in providing services to the facility and the adverse environmental impact to the community. Compensation for these impacts may be made by the payment of money to the Town reflecting these costs and impacts, and these funds will be used to offset these expenses and provide for alternative recreational or cultural opportunities to the community. Payment may also be made in the form of providing electrical power for the Town or its residents in an amount reasonably related to the actual expenses and environmental impacts to the Town.
The Town hereby elects that there will be no exemption to the assessment and collection of real property taxes as provided for in New York State Real Property Tax Law § 487, Subdivision 8, within its jurisdiction with respect to any commercial wind energy system.