The purpose of this article is to provide standards for energy
systems designed for on-site home, farm, and small commercial use
and that are primarily used to reduce on-site consumption of utility
power. The intent of this article is to encourage the development
of alternative energy systems while protecting the health, safety,
and welfare of the public.
A.
Applicability.
(1)
Only closed-loop geothermal energy systems utilizing heat transfer fluids as defined in Article I are permitted. Open-loop geothermal energy systems are not permitted.
(2)
Geothermal energy systems in public waters may be permitted
in accordance with approval from the LeRay Town Board, subject to
state and federal permits and water quality standards.
(3)
Geothermal energy systems in water bodies owned or managed by
the Town of LeRay are not permitted.
B.
Design standards.
(1)
All components of geothermal energy systems, including pumps,
borings and loops, shall be set back at least five feet from side
lot lines and at least 10 feet from rear lot lines.
(2)
All borings and loops shall be set back at least 10 feet from
the foundation of any structure, either on or off site.
(3)
Aboveground equipment associated with geothermal energy shall
not be installed in the front yard of any lot or the side yard of
a corner lot adjacent to a public right-of-way and shall meet all
required setbacks for the applicable zoning district.
(4)
Geothermal energy systems shall not encroach on public drainage,
utility roadway or trail easements.
(5)
Geothermal heat pumps shall be screened to reduce noise levels
as measured at the property boundary to 50 decibels or less.
(6)
In addition to screening for noise control, geothermal energy
systems are considered mechanical equipment and are subject to screening
by landscaping, fencing or other methods to enhance the view.
C.
Standards and certifications. Geothermal energy systems shall be
certified by Underwriters' Laboratories, Inc., and shall meet
the requirements of the New York State Building Code as adopted by
the Town of LeRay.
D.
Abandonment.
(1)
If a geothermal energy system remains nonfunctional or inoperative
for a continuous period of 12 months, the system shall be deemed to
be abandoned and shall constitute a public nuisance.
(2)
Upon notice to the owner by the Zoning Enforcement Officer,
within 180 days the owner shall remove the abandoned system at his/her
expense after a hearing by the LeRay Town Board, in accordance with
the following:
(a)
The heat pump and any external mechanical equipment shall be
removed.
(b)
Pipes or coils below the land surface shall be filled with grout
to displace the heat transfer fluid. The heat transfer fluid shall
be captured and disposed of in accordance with applicable regulations.
The top of the pipe, coil or boring shall be uncovered and grouted.
(c)
Geothermal energy systems shall be completely removed from the
bottom of any water body.
E.
Permits.
(1)
A building permit shall be obtained from the Jefferson County
Fire Prevention and Building Codes Department for any geothermal energy
system prior to installation.
(2)
Borings for vertical systems are subject to any and all required
approvals and permits from the NYSDEC Division of Waters the New York
State Department of Health.
A.
Applicability.
(1)
Small WECS may be used primarily to generate on-site power or
to reduce the off-site supply of electricity.
(2)
Freestanding small WECS shall only be permitted in AR Zoning
Districts upon issuance of a special use permit.
(3)
Building-mounted and freestanding small WECS with a rotor swept
area of 20 square feet or less and a height of 35 feet or less shall
be permitted in CC, MU, MED, and AR Districts upon issuance of a special
use permit.
B.
Approval. No small WECS shall be erected, constructed, installed or modified without first receiving a special use permit from the Planning Board, as outlined in Article XVI. All small WECS installed prior to the enactment of this article are exempt from the conditions herein; provided, however, that:
(1)
Any such preexisting small WECS which does not provide energy
for a continuous period of 12 months shall meet the requirements of
this section prior to recommencing production of energy.
(2)
No modification or alteration to an existing small WECS shall
be allowed without full compliance with this section.
(3)
Wind energy facilities are an accessory use. A different existing
use or an existing structure on the same site shall not preclude the
installation of a small WECS or a part of such facility on such site.
(4)
Small WECS constructed and installed in accordance with this
section shall not be deemed expansions of a nonconforming use or structure.
C.
Procedure for review.
(1)
An application for a special use permit and site plan review for freestanding small WECS shall include the following requirements, in addition to those requirements pursuant to Articles XVI and XX:
(a)
Ownership and land use information within a radius of 1,000
feet of the location proposed for each tower to be shown on the site
plan.
(b)
Location of the proposed small WECS, foundations, guy anchors,
and associated equipment to be shown on the site plan.
(c)
Location of important bird areas as identified by New York Audubon
Society, other recognized habitats such as any nearby New York State
wildlife management areas, any locally recognized priority habitat
areas such as those set aside for bats, and any areas considered "sensitive."
This may include but not be limited to areas such as bird conservation
areas or areas covered under mitigation for species such as grassland
birds and state-identified wetlands to be shown on the site plan.
(d)
Setback requirements as outlined in this chapter to be shown
on the site plan.
(e)
Small WECS specifications, including manufacturer, model, rotor
diameter, tower height, and tower type (freestanding or guyed).
(f)
If the small WECS will be connected to the power grid, documentation
shall be provided regarding the notification of the intent with the
utility regarding the applicant's installation of a small WECS.
(g)
Tower foundation engineering drawings stamped by a professional
engineer licensed to practice in the State of New York.
(h)
Sound level analysis prepared by the wind turbine manufacturer
or qualified engineer.
(i)
Electrical components in sufficient detail to allow for a determination
that the manner of installation conforms to the National Electrical
Code (usually provided by the manufacturer).
(j)
Estimated costs of physically removing the small WECS to comply
with safety standards.
(k)
Evidence of compliance or nonapplicability with Federal Aviation
Administration requirements.
(l)
The site plan must be stamped by a professional engineer licensed
to practice in the State of New York.
(2)
An application for a special use permit and site plan review for building-mounted small WECS shall include all the requirements of Subsection C(1) above, except Subsection C(1)(g), and the following:
(a)
Building connection details and engineering drawings stamped
by a professional engineer licensed to practice in the State of New
York.
(3)
Prior to issuance of a special use permit, the applicant shall
provide the Town proof of a level of insurance to be determined by
the Town Board in consultation with the Town's insurer, to cover
damage or injury that might result from the failure of a tower or
towers or any other part or parts of the generation and transmission
facility.
D.
Application review process.
(1)
Applications for small WECS are deemed unlisted projects under
SEQRA. The Planning Board may conduct its SEQRA review in conjunction
with other agencies, in which case the records of review by said communities
shall be part of the record of the Planning Board's proceedings.
(2)
An application under this section is not deemed complete until
a properly completed environmental assessment form (EAF) under the
State Environmental Quality Review Act[1] (or successor provision) has been submitted to the Planning
Board, and:
(a)
Lead agency has been established pursuant to the Environmental
Conservation Law;
(b)
A negative declaration or conditional negative declaration has
been filed pursuant to the Environmental Conservation Law; or
(c)
If it has been determined that the project may have a significant
effect on the environment, a draft environmental impact statement
has been accepted by the lead agency.
[1]
Editor's Note: See New York State Environmental Conservation
Law § 8-0101 et seq.
(3)
The Planning Board will require a developer agreement for any
engineering and legal review of application(s) and any environmental
impact statements before commencing its review.
E.
Design standards. In addition to the special use permit review process as provided in Article XVI, the small WECS shall also be evaluated for compliance to the following standards:
(1)
Setback and area requirements.
(a)
Freestanding small WECS shall be set back a distance, measured
from the center of the tower base, at 1 1/2 times the total height
of the tower from:
[1]
Any public road right-of-way, unless written permission is granted
by the governmental entity with jurisdiction over the road.
[2]
Any overhead utility or transmission lines.
[3]
All property lines.
[4]
All dwellings.
[5]
Any travel ways, to include but not be limited to driveways,
parking lots, nature trails or sidewalks.
[6]
Other wind turbine towers, electrical substations, or meteorological
towers.
[7]
Wind turbines shall be set back at least 1,000 feet from important
bird areas, as identified by the New York Audubon Society, other recognized
habitats such as any nearby New York State wildlife management areas,
and any locally recognized priority habitat areas such as those set
aside for bats and any areas considered "sensitive," which may include
but not be limited to areas such as bird conservation areas or areas
covered under mitigation for species such as grassland birds; and
at least 500 feet from state-identified wetlands. These distances
may be adjusted to be greater or lesser at the discretion of the reviewing
body, based on topography, land cover, land uses, and other factors
that influence the flight patterns of resident birds.
(b)
Guy wires used to support the tower are exempt from the small
WECS setback requirements. However, the guy wires may not be located
within or over a right-of-way without obtaining an easement.
(c)
No small WECS shall be installed or mounted less than 100 feet
from the nearest dwelling as measured horizontally from the center
of the rotor.
(d)
All small WECS shall require a minimum lot size of one acre
for each turbine.
(2)
Height.
(a)
The total height for freestanding small WECS in AR Districts
shall not exceed 100 feet; the total height for freestanding small
WECS in the CC, MU and MED Districts shall not exceed 35 feet.
(b)
Building-mounted small WECS shall not be installed to a total
height which exceeds the building height limitations for the given
district.
(3)
Towers.
(a)
Freestanding wind turbines may only be attached to specifically
designed and manufactured towers.
(b)
The applicant shall provide evidence that the proposed tower
height does not exceed the height recommended by the manufacturer
of the wind turbine.
(c)
Anchor points for any guy wires for a system tower shall be
located within the property or easements that the system is located
on and not on or across any aboveground electric transmission or distribution
lines. The point of attachment for the guy wires shall be sheathed
in bright orange or yellow covering from three feet to eight feet
above the ground.
(4)
Sound level. A small WECS shall be designed, installed, and
operated so that noise generated by the system shall not exceed ambient
(L90 measured with the turbine in operative)
plus five decibels (dBA), as measured at the closest neighboring property
line.
(5)
Safety.
(a)
To prevent harmful wind turbulence on 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 radius of 250 feet. 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.
(b)
All small WECS shall be equipped with manual and automatic over-speed
controls. The conformance of rotor and over-speed control design and
fabrication with good engineering practices shall be certified by
the manufacturer.
(d)
At least one sign shall be posted on the tower at a height of
five feet warning of electrical shock or high voltage and harm from
rotating machinery. No brand names, logo 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 or tower's manufacturer's
logo may be displayed in an unobtrusive manner on a system generator
housing.
(e)
Any small WECS found to be unsafe by the local Zoning Enforcement
Officer shall be repaired by the owner to meet federal, state and
local safety standards or shall be removed within three months.
(f)
The system shall be operated such that no disruptive electromagnetic
interference is caused. If it has been demonstrated that a system
is causing harmful interference, the system operator shall promptly
mitigate the harmful interference or cease operation of the system.
(g)
The system shall be operated such that no damage is caused by
stray voltage. If it has been demonstrated that a system is causing
stray voltage, the system operator shall promptly mitigate the damage
or cease operation of the system.
(6)
Shadowing/flicker. Small WECS shall be sited in a manner that
does not result in shadowing or flicker impacts in excess of one hour
per day. The applicant has the burden of proving that this effect
does not have a significant adverse impact on neighboring or adjacent
uses, either through siting or mitigation.
(8)
Code compliance. The small WECS shall comply with all applicable
sections of the New York State Building Code and National Electric
Code.
(9)
Agriculture and Markets compliance. The New York State Department
of Agriculture and Markets guidelines for agricultural mitigation
for WECS projects shall be adhered to both inside and outside of agricultural
districts. This information can be found at: www.agmkt.state.ny.us,
"Construction Projects Affecting Farmland."
(10)
Aviation compliance. The small WECS shall be built to comply
with all applicable Federal Aviation Administration guidelines, including
but not limited to 14 CFR Part 77, Subpart b, regarding installations
close to airports, and the New York Aviation regulations. Evidence
of compliance or nonapplicability shall be submitted with the application.
(11)
Visual impacts. It is inherent that small WECS may pose some
visual impacts due to the tower height needed to access the wind resources.
The purpose of this section is to reduce the visual impacts without
restricting the owner's access to the wind resources.
(a)
The applicant shall demonstrate through project site planning
and proposed mitigation that the small WECS's visual impacts
will be minimized for surrounding neighbors and the community. This
may include, but not be limited to, information regarding site selection,
turbine design or appearance, buffering, and screening of ground-mounted
electrical and control equipment. All electrical conduits shall be
underground.
(b)
The color of the small WECS shall either be the stock color
from the manufacturer or painted with a white or off-white nonreflective,
unobtrusive color that blends in with the surrounding environment.
(c)
A small WECS shall not be artificially lit unless such lighting
is required by the Federal Aviation Administration (FAA). If lighting
is required, the applicant shall provide a copy of the FAA determination
to establish the required markings and/or lights for the small WECS.
(12)
Utility connection. If the proposed small WECS is to be connected
to the power grid through net metering, the applicant shall provide
written evidence that the electric utility service provider that services
the proposed site has been informed of the applicant's intent
to install an intermittent customer-owned electric generator.
(13)
Access.
(a)
All ground-mounted electrical and control equipment shall be
labeled and secured to prevent unauthorized access.
(b)
All on-site electrical wires associated with the system shall
be installed underground except for tie-ins to a public utility company
and public utility company transmission poles, towers and lines. This
standard may be modified by the Planning Board if the project terrain
is determined to be unsuitable due to reasons of excessive grading,
biological impacts, or similar factors.
(c)
Existing roads shall be used to provide access to the facility
site, or, if new roads are needed, the amount of land used for new
roads shall be minimized and the new roads shall be located so as
to minimize adverse environmental impacts.
(14)
Approved wind turbines. The manufacturer and model of the wind
turbine to be used in the proposed small WECS must have been approved
by the California Energy Commission or the New York State Energy Research
and Development Authority, or a similar list approved by the State
of New York, if available.
(15)
Clearing. Clearing of natural vegetation shall be limited to
that which is necessary for the construction, operation and maintenance
of the small WECS and as otherwise prescribed by applicable laws,
regulations, and ordinances.
F.
Operations.
(1)
All small WECS shall be maintained in operational condition
at all times, subject to reasonable maintenance and repair outages.
"Operational condition" includes meeting all permit conditions.
(2)
Should a small WECS become inoperable, or should any part of
the WECS be damaged, or should a WECS violate a permit condition,
the owner or operator shall remedy the situation within 90 days after
written notice from the Zoning Enforcement Officer to cure any deficiency.
(3)
An extension of the ninety-day period may be considered, but
the total period may not exceed 180 days.
G.
Bonding requirements. Whenever any small WECS facility is constructed,
the operator of the facility shall obtain and keep in force a performance
bond payable to the Town of LeRay to cover the cost of removal of
the facility. The performance bond shall remain in force throughout
the time that the facility is located on the site. The amount of the
bond shall equal 150% of the estimated costs of removal, as determined
by the Zoning Enforcement Officer, or $1,000, whichever is greater.
H.
Abandonment.
(1)
At such time that a small WECS is scheduled to be abandoned
or discontinued, the applicant will notify the Zoning Enforcement
Officer by certified United States mail of the proposed date of abandonment
or discontinuation of operations.
(2)
Upon abandonment or discontinuation of use, the owner shall
physically remove the small WECS within 90 days from the date of abandonment
or discontinuation of use. This period may be extended at the request
of the owner and at the discretion of the Zoning Enforcement Officer.
"Physically remove" shall include but not be limited to:
(3)
In the event that an applicant fails to give such notice, the
system shall be considered abandoned or discontinued if the system
is out of service for a continuous twelve-month period. After the
12 months of inoperability, the Zoning Enforcement Officer may issue
a notice of abandonment to the owner of the small WECS. The owner
shall have the right to respond to the notice of abandonment within
30 days from notice receipt date.
(4)
The Zoning Enforcement Officer shall withdraw the notice of
abandonment and notify the owner that the notice has been withdrawn
if the owner provides reasons for the operational difficulty, provides
a reasonable timetable for corrective action, and demonstrates that
the small WECS has not been abandoned.
(5)
If the owner fails to respond to the notice of abandonment or
if after review by the Zoning Enforcement Officer it is determined
that the small WECS has been abandoned or discontinued, the owner
of the small WECS shall remove the wind turbine and tower at the owner's
sole expense within 120 days of receipt of the notice of abandonment.
(6)
If the owner fails to physically remove the small WECS after
the notice of abandonment procedure, the Town shall have the authority
to enter the subject property and physically remove the small WECS
at the owner's sole expense.
I.
Violations; prior installations.
J.
Penalties.
(1)
Any person owning, controlling or managing any building, structure
or land who shall undertake a small WECS in violation of this section
or in noncompliance with the terms and conditions of any permit issued
pursuant to this section, or any order of the Enforcement Officer,
and any person who shall assist in so doing, shall be guilty of an
offense and shall be subject to a fine of not more than $350 or to
imprisonment for a period of not more than six months, or to both
such fine and imprisonment.
(2)
Every such person shall be deemed guilty of a separate offense
for each week such violation shall continue. The Town may institute
a civil proceeding to collect civil penalties up to $350 for each
violation, and each week said violation continues shall be deemed
a separate violation.
(3)
In addition to the penalties provided above, the Town Board
may also maintain an action or proceeding in the name of the Town
in a court of competent jurisdiction to compel compliance with or
restrain by injunction the violation of this chapter. The violator
will be held responsible for all legal fees, engineering fees and
any other cost incurred by the Town in enforcing this chapter.
K.
Waiver provisions.
(1)
The Planning Board may, after a public hearing (which may be
combined with other public hearings on small WECS so long as the waiver
request is detailed in the public notice), grant a waiver from the
strict application of the provisions of this section if, in the opinion
of the Planning Board, the grant of said waiver is in the best interests
of the Town of LeRay.
(2)
The Planning Board may consider, as reasonable factors in evaluating
any waiver of the terms of this section, the impact of the waiver
on the surrounding area, including:
L.
Exemptions for recognized farm operations seeking placement of small
wind energy conversion systems within county-adopted, state-certified
agricultural districts.
(1)
Farming operations, as the same are defined by § 301,
Subdivision 11, of the New York State Agriculture and Markets Law,
are, by operation of § 305-a of said law, exempt from the
preceding subsections of this section.
(2)
The exemption is limited to said operations located within county-adopted,
state-certified agricultural districts as defined by the New York
State Agricultural and Markets Law.
(3)
The exemption shall release such recognized farm operations from the application of the following sections of § 158-129, Small wind energy conversion systems (WECS), as enacted above, to wit:
(a)
Farming operations, as defined above, are exempt from the requirement to provide an engineered sound analysis and an estimate of the costs of physical removal as required by § 158-129C(1)(h) and (j).
(b)
Farming operations, as defined above, are exempt from the requirement to provide proof of insurance as required by § 158-129C(3).
(c)
Farming operations, as defined above, are exempt from the requirements contained in § 158-129D in that such operations shall be considered a Type II action not subject to compliance with the State Environmental Quality Review (SEQR) nor subject to preparation of an environmental assessment form (EAF) according to guidelines published by the New York State Department of Agriculture. In addition, such operations shall be considered exempt from the requirement of developer agreement and public hearing as contained in the forenoted exempted sections.
(d)
Farming operations, as defined above, are exempt from the requirement regarding important bird areas contained in § 158-129E(1)(a)[7].
(e)
Farming operations, as defined above, are exempt from the requirement regarding the height requirement contained in § 158-129E(2)(b) so long as other operational standards and requirements of this section are fully met.
(f)
Farming operations, as defined above, are exempt from the environmental review aspects (sound and visual), utility access and vegetation disturbance minimization requirements contained in § 158-129E(4), (6), (11), (13) and (15) so long as other operational standards and requirements of this section are fully met.
M.
Severability. Should any provision of this section be declared by
the courts to be unconstitutional or invalid, such decision shall
not affect the validity of this section as a whole or any part thereof
other than the part so decided to be unconstitutional or invalid.
A.
Applicability.
(1)
All freestanding devices designated for direct collection of solar rays shall be required to obtain site plan approval pursuant to Article XX.
(2)
In determining compliance with these requirements, the Planning
Board may be guided by other requirements of this chapter relevant
to the applicable zoning district.
(3)
Passive or building-integrated solar energy systems are exempt
from the requirements of this section and shall be regulated as any
other building element.
B.
Freestanding solar arrays.
(1)
Factors to be considered by the Planning Board in determining
the siting requirements for freestanding solar installations under
this section:
(a)
The setbacks proposed and available in relation to other applicable
setbacks for the zone within which the installation is proposed.
(b)
The proposed height, width and dimensions of the installation
and housing structures and whether the proposed installation is compatible
with adjacent uses in terms of scale, siting, design, lighting and
noise generation.
(c)
The maximum surface area of the proposed installation in relation
to the available lot size for the host parcel.
(d)
Energy load of the primary residence or buildings to be powered
by the installation.
(2)
Minimum lot size for all freestanding solar arrays is 20,000
square feet.
C.
Design standards.
(1)
Freestanding.
(a)
All freestanding installations shall be screened with an appropriate
combination of natural vegetative buffer, landscaping, or other such
screening as the Planning Board shall determine, and installations
shall be sited so as to minimize significant adverse visual and/ or
auditory impacts.
(b)
All freestanding devices shall be in architectural harmony so
that, in the opinion of the Planning Board, such devices shall not
cause effects contrary to other provisions of this chapter relevant
to the applicable zoning district.
(c)
In nonagricultural zoning districts, freestanding solar energy
systems are limited to the rear yard. In agricultural zoning districts,
freestanding solar energy systems may be permitted in side yards on
corner lots greater than 300 feet in width.
(d)
Freestanding solar energy systems, including any appurtenant
equipment, shall be set back a minimum of 15 feet from all property
lines and a minimum of 30 feet from all dwellings located on adjacent
lots.
(e)
In R-1 Districts, freestanding solar energy systems shall not
exceed 25% of the rear yard as measured from the rear plane of the
principal structure perpendicular to the corresponding side and rear
yard lot lines. In all other districts, freestanding solar energy
systems shall not cause a parcel to exceed the district's maximum
permitted impervious surface coverage.
(f)
Freestanding solar energy systems shall not exceed eight feet
in height.
(2)
Building-mounted.
(a)
Building-mounted solar energy systems shall comply with the
maximum height requirements in the applicable zoning district.
(b)
Building-mounted systems shall comply with all building setbacks
in the applicable zoning district and shall not extend beyond the
exterior perimeter of the building on which the system is mounted.
(c)
Building-mounted solar collectors shall be mounted parallel
to the supporting roof or wall.
(d)
All building-mounted solar energy systems shall use colors that
blend with the color of the roof or other structure, where possible.
(3)
Other.
(a)
The Planning Board may require visual simulations sufficient
to determine potential visual impacts during the review process, as
well as other information reasonably necessary in the Board's
discretion.
(b)
Reflective angles from collector surfaces shall be oriented
away from adjacent structures and roadways. Where applicable, screening
may be required by the Planning Board to mitigate potential negative
impacts associated with reflective glare.
(c)
The electrical collection system shall be placed underground
within the interior of each parcel. The collection system may be placed
overhead near substations or points of interconnection to the electric
grid.
D.
Standards and certification.
(1)
Solar energy systems (photovoltaic) shall meet the minimum standards
outlined by the International Electrotechnical Commission (IEC), the
American Society of Heating, Refrigerating, and Air-Conditioning Engineers
(ASHRAE), ASTM International, British Standards Institution (BSI),
International Organization for Standardization (ISO), Underwriters'
Laboratories, Inc. (UL), the Solar Rating and Certification Corporation
(SRCC), or other standards as determined by the Town of LeRay Town
Board.
(2)
Solar energy systems shall be certified by Underwriters'
Laboratories, Inc., or the National Renewable Energy Laboratory, the
Solar Rating and Certification Corporation or other body as determined
by the Town of LeRay Town Board. The Town reserves the right to deny
a building permit for proposed solar energy systems deemed to have
inadequate certification.
E.
Utility connection. All grid connected systems shall have an agreement
with the local utility prior to the issuance of a building permit.
A visible external disconnect must be provided if required by the
utility.
F.
Abandonment.
(1)
If the solar energy system remains nonfunctional or inoperative
for a continuous period of one year, the system shall be deemed to
be abandoned and shall constitute a public nuisance. The owner shall
remove the abandoned system at his/her expense after being notified
by the Zoning Enforcement Officer.
(2)
Removal includes the entire structure including transmission
equipment. Removal shall be completed within six months after notification
by the Zoning Enforcement Officer.
G.
Permits. A building permit shall be obtained for any solar energy
system prior to installation.
