[HISTORY: Adopted by the Town Board of the Town of Berne as indicated in article histories. Amendments noted where applicable.]
GENERAL REFERENCESAttachment 1 - BIBLIOGRAPHY: Industrial Wind Energy Facilties
Building Code administration — See Ch. 87.
Subdivision of land — See Ch. 170.
Zoning — See Ch. 190.
[Adopted 3-13-2013 by L.L. No. 1-2013]
This article may be cited as the "Town of Berne Residential Wind Energy Facility Law."
The Town Board of the Town of Berne enacts this article under the authority granted by § 10 of the New York State Municipal Home Rule Law and the New York State Town Law.
The purpose of this article is to provide for the construction and operation of residential wind energy facilities in the Town of Berne, subject to reasonable conditions that will protect the public health, safety and welfare.
As used in this article, the terms shall have the following meanings:
- ANCILLARY FACILITIES OR EQUIPMENT
- Any structure other than a wind turbine, related to the purpose of deriving energy from such turbine, located on the residential wind energy facility site.
- A deeded parcel of land that appears on the county Tax Map.
- Any one- or two-family dwelling in the Town of Berne existing on the date an application for a residential wind energy facility permit is received.
- RESIDENTIAL WIND ENERGY FACILITY
- A single residential wind turbine, including all related infrastructure, electrical lines, access roads and ancillary structures.
- RESIDENTIAL WIND ENERGY FACILITY PERMIT
- A permit pursuant to this article granting the holder the right to construct, maintain and operate a residential wind energy facility.
- RESIDENTIAL WIND TURBINE
- A wind energy conversion system consisting of a single wind turbine, a tower, and associated control or conversion electronics, which has a rated capacity of not more than 10 kW and which is intended primarily to reduce consumption of utility power at that location for residential use.
- The parcel of land where a residential wind energy facility is to be placed.
- SOUND PRESSURE LEVEL
- According to the NYSDEC Program Policy on Assessing and Mitigating Noise Impacts, a measure of sound pressure in the atmosphere which can be determined according to the International Standard for Acoustic Noise Measurement Techniques for Wind Generators (IEC 6140011), or other accepted procedure. also, the perceived loudness of a sound as expressed in decibels (db) or a-weighted decibel scale [dB(a)]. For example, an "LEQ 10 - 25 dBA" indicates that in any hour of the day, 25 dBA can be equaled or exceeded only 10% of the time, or for six minutes.
- TOTAL HEIGHT
- The height of the tower from ground level to the vertical extension or sweep of the wind turbine blade or rotor.
- TRANSMISSION OWNER
- The owner of the electric distribution network. Examples include New York State Electric and Gas, National Grid and Central Hudson.
- WIND ROSE
- A graphical representation of the average wind speed and prevailing wind direction at a site.
The requirements of this article shall apply to all residential wind energy facilities proposed, operated, modified, or constructed after the effective date of this article, including modification of existing wind energy facilities. Wind energy facilities are a permitted use, upon securing a permit, and subject to site plan review and the limitations of the Zoning Ordinance, in the Residential/Agricultural/Forestry (RAF) Zoning District.
Permit requirement. No residential wind energy facility shall be constructed, reconstructed, modified, or operated in the Town of Berne except by first obtaining a residential wind energy facility permit as provided under this article.
Exemptions. No permit or other approval shall be required under this article for mechanical, nonelectrical wind turbines utilized solely for agricultural operations. Replacement inkind or repair of a residential wind energy facility may occur without Planning Board approval when there shall be:
Transfer. The transfer of any residential wind energy facility or residential wind energy facility permit, or sale of the entity owning such facility, shall not eliminate the liability of an applicant nor of any other party under this article.
A complete application for a residential wind energy facility permit shall include:
A copy of an executed interconnection agreement with the applicable transmission owner, if applicable.
A completed application for a residential wind energy facility permit.
A site plan prepared by a licensed professional engineer, including:
Property lines and physical dimensions of the site, including twenty-foot contour elevations of the site, including adjacent parcels;
Location, approximate dimensions and types of all existing structures and uses on the site, public roads, easements, rights-of-way and adjoining properties within 1,000 feet of the boundaries of any proposed site for a residential wind turbine.
Location and elevation of the proposed residential wind turbine.
Location of all above- and below-ground sewer and utility lines on the site, the interconnection point with the transmission line, and other ancillary facilities or structures.
Locations of setbacks as required by this article, shown as a building envelope.
A graphic representation of the extent of the shadow cast by the proposed wind turbine throughout the year.
Location of all occupied residential structure(s) on the site and located on adjacent parcels, and the distance of each from the proposed residential wind turbine.
A wind rose.
A vertical drawing of the residential wind turbine showing total height, turbine dimensions, tower and turbine colors, ladders, and the distance between the ground and the lowest point of any blade. The make, model, picture and manufacturer's specifications and certifications for the specific model, including noise decibels data, and material safety data sheet documentation for all materials used in the operation of the equipment shall be provided for the proposed residential wind turbine.
Erosion and sediment control and stormwater management plans prepared to New York State Department of Environmental Conservation standards, if applicable, and to such standards as may be established by the Town of Berne Planning Board on the recommendation of its Town Engineer or consultants.
A construction schedule describing commencement and completion dates.
An operations and maintenance plan providing for regular periodic maintenance schedules and any special maintenance requirements.
A decommissioning plan that addresses the anticipated life of the wind turbine, the estimated decommissioning costs and the method of ensuring funds shall be available for decommissioning and restoration.
List of property owners, with their mailing addresses, within 1,000 feet of the outer boundaries of the proposed site.
A short environmental assessment form with visual addenda, as provided by the New York State Environmental Quality Review Act (SEQRA) shall be prepared for the residential wind energy facility. This environmental assessment shall, at a minimum, include:
A statement as to whether there is a potential of shadow flicker, including a graphic to identify locations where shadows may be caused by the residential wind turbine and expected durations of the shadow at those locations. There shall be no shadows cast on off-site properties.
An analysis documenting the expected noise levels associated with the proposed wind turbine and existing noise levels at site property lines and at the nearest occupied structure not on the site. The noise analysis shall include low-frequency noise. The Planning Board may accept suitable documentation by the manufacturer of noise levels associated with the proposed residential wind turbine.
A statement as to the visual impact on surrounding properties and scenic vistas. A balloon test shall be required. Landowners within 2,000 feet must be notified.
The Planning Board may require further environmental assessment at its discretion.
A preapplication meeting with the Planning Board is required.
Six copies of the complete application for a residential wind turbine shall be submitted to the Building Department. Payment of all application fees shall be made at the time of submission.
The Planning Board shall, within 90 days of receipt, determine if all information required hereunder is included in the application. If the application is deemed incomplete, the applicant shall be provided with a written statement listing missing data. Upon submission of a complete application, the Planning Board shall proceed with its review. The Planning Board may require the applicant to undertake a balloon test to allow the Planning Board to assess the visual impacts of the proposed location.
The Planning Board shall hold at least one public hearing on the application. Notice shall be published in the Town's official newspaper, not less than 10 days before any hearing, but, where any hearing is adjourned by the Planning Board to hear additional comments, no further publication shall be required. The public hearing may be combined with public hearings on any environmental impact statement or requested waivers. All property owners within 1,000 feet of the boundary line of the site of the proposed residential wind energy facility shall be given notice of a public hearing via certified mail at the expense of the applicant.
Notice of the project shall also be given to the Albany County Planning Board, as required by General Municipal Law § 239-m.
Following receipt of the recommendation of the Albany County Planning Board (if applicable), the holding of the public hearing, and completion of the SEQRA process, the Planning Board may approve, approve with conditions, or deny the residential wind energy facility permit application, in accordance with the standards in this article. The Planning Board shall also impose financial guarantee and inspection requirements and require permit renewals. Any denial shall be in writing, setting forth competent reasons for such denial with references to relevant sections of this article.
The following standards shall apply to residential wind energy facilities in the Town of Berne:
All power transmission lines from the tower to any building or other structure shall be located underground.
No television, radio or other communication antennas may be affixed or otherwise made part of any wind turbine, unless approved by the Planning Board.
No advertising signs are allowed on any part of the residential wind energy facility, including fencing and support structures.
No tower shall be lit except to comply with Federal Aviation Administration (FAA) requirements.
All applicants shall use measures to reduce the visual impact of residential wind turbines to the extent possible. All structures in a project shall be finished in a single, nonreflective, matte-finished color. No lettering, company insignia, advertising, or graphics shall be on any part of the tower, hub, or blades.
No residential wind turbine shall be installed in any location where its proximity with existing fixed broadcast, retransmission, or reception antennas for radio, television, or wireless phone or other communication systems would produce electromagnetic interference with signal transmission or reception. If it is determined that a residential wind turbine is causing electromagnetic interference, the operator shall be required to take necessary corrective action to eliminate this interference, including relocation or removal of the facilities, or resolution of issues with the affected parties. Failure to remedy electromagnetic interference is grounds for revocation of the residential wind energy facility permit.
The residential wind turbine shall be located in a manner so that there will be no shadow flicker on off-site properties.
Towers shall be of the freestanding tubular type.
The total height shall not exceed 125 feet. The rotor shall not exceed a diameter of 30 feet.
The following safety measures shall be required of all residential wind energy facilities in the Town of Berne:
All residential wind turbines shall have an automatic braking, governing or feathering system to prevent uncontrolled rotation, overspeeding and excessive pressure on the tower structure, rotor blades and turbine components.
Warning signs shall be posted at the base of the tower warning of electrical shock or high voltage and containing emergency contact information.
No climbing pegs or tower ladders shall be located closer than 15 feet to the ground level at the base of the freestanding tubular tower.
The minimum distance between the ground and any part of the rotor or blade system shall be 30 feet.
Residential wind turbines shall be designed to prevent unauthorized access to electrical and mechanical components.
An emergency shutoff switch shall be installed at the bottom of all residential wind turbines.
The following setbacks shall be required of all residential wind energy facilities in the Town of Berne to abate noise:
The residential wind turbine shall be set back as follows:
On-site residences and other on-site occupied buildings: a distance no less than three times its total height.
Property lines: a distance no less than three times its total height.
Rights-of-way: a distance no less than three times its total height.
Public roads: a distance no less than three times its total height.
The statistical sound pressure level generated by a residential wind turbine shall not exceed 10 - 25 dBA measured at the property lines and inside any adjoining occupied residential structure. Calculations shall be determined in accordance with the double distance rule.
In the event audible noise due to residential wind energy facility operations contains a steady pure tone, such as a whine, screech, or hum, the standards for audible noise set forth in Subsection C(2) of this section shall be reduced by five dBA. A pure tone is defined to exist if the one-third-octave-band sound pressure level in the band, including the tone, exceeds the arithmetic average of the sound pressure levels of the two contiguous one-third-octave bands by five dBA for center frequencies of 500 Hz and above, by eight dBA for center frequencies between 160 Hz and 400 Hz, or by 15 dBA for center frequencies less than or equal to 125 Hz.
The Planning Board shall, within 180 days of determining the application is complete, and upon consideration of the standards in this article and the record of the SEQRA review, issue a written decision with the reasons for approval, conditions of approval or disapproval fully stated. This time period may be extended at the discretion of the Planning Board.
If approved, the Planning Board would recommend that the Town issue a residential wind energy facility permit upon satisfaction of all conditions for said permit, and upon compliance with the New York State Building Code.
The decision of the Planning Board shall be filed within 15 days in the office of the Town Clerk and a copy mailed to the applicant by first-class mail.
If any approved residential wind energy facility is not substantially completed within two years of issuance of the residential wind energy facility permit, the residential wind energy facility permit shall expire, unless the Planning Board shall have granted an extension, which extension shall not exceed one year.
The application fee for a residential wind energy facility permit shall be $500, and the permit fee shall be an additional $500 upon the issuance of the permit. These fees may be modified by the Town Board from time to time. The applicant shall also be responsible for the cost of public notice and mailing expenses relating to the application and any professional service fees required by the Planning Board in connection with the Planning Board's review of the application.
If any residential wind turbine remains nonfunctional or inoperative for a continuous period of 90 days, the owner shall remove said system at its own expense. Removal of the system shall include at least the entire above-ground structure from the property. This provision shall not apply if the owner demonstrates to the Town that it has been making good-faith efforts to restore the residential wind turbine to an operable condition, but nothing in this provision shall limit the Town's ability to order a remedial action plan after public hearing.
The applicant shall make available to the Town all reports to and from the purchaser of energy, if requested and necessary to prove the residential wind turbine is functioning, which reports may be redacted as necessary to protect personal information.
Nothing in this article shall be deemed a guarantee against any future construction or Town approvals of future construction that may in any way impact the wind flow to any residential wind energy facility.
The applicant may be required to fund noise testing by a board-certified acoustical engineer upon notification of the Town in response to written complaints by occupants of adjoining properties. The scope of the noise testing shall be to demonstrate compliance with the terms and conditions of the residential wind energy facility permit and this article and shall also include an evaluation of any complaints received by the Town. The applicant shall have 90 days after written notice from the Town to cure any deficiency. An extension of the ninety-day period may be considered, but the total period may not exceed 180 days.
A residential wind turbine shall be maintained in operational condition at all times, subject to reasonable maintenance and repair outages. Operational condition includes meeting all noise requirements and other permit conditions. Should a residential wind turbine become inoperable, or should any part of the residential wind turbine be damaged, or should a residential wind turbine violate a permit condition the applicant shall have 90 days after written notice from the Town to cure any deficiency. An extension of the ninety-day period may be considered, but the total period may not exceed 180 days.
Should a residential wind turbine not be repaired or made operational or brought into permit compliance after said notice, the Town may, after a public meeting at which the owner shall be given opportunity to be heard and present evidence, including a plan to come into compliance, order either remedial action within a particular time frame, or order revocation of the residential wind energy facility permit for the wind turbine and require removal of the residential wind turbine within 90 days.
The Town Board of Berne shall designate the Town Code Enforcement Officer to enforce the provisions of this article and may employ such professional expertise as may be necessary to support these enforcement efforts. In the event of a violation, such professional fees shall be the responsibility of the applicant to pay.
Any person owning, controlling or managing any building, structure or land who shall undertake to construct or operate a residential wind energy facility in violation of this article or in noncompliance with the terms and conditions of any permit issued pursuant to this article, or any order of the enforcement officer, and any person who shall assist in so doing, shall be guilty of a violation of this article and shall be subject to a fine of not more than $350. Each week said violation continues shall be deemed a separate violation.
The Town may, in the case of any violation or threatened violation of any of the provisions of this article, including permit terms and conditions, institute any appropriate action or proceeding to prevent such unlawful erection, structural alteration, reconstruction, moving and/or use and to restrain, correct or abate such violation, to prevent the illegal act. This shall be in addition to other remedies and penalties herein provided.
[Adopted 4-10-2013 by L.L. No. 3-2013]
This article may be cited as the "Industrial Wind Energy Facilities Local Law" of the Town of Berne, New York.
The purpose of this article is to clearly establish that industrial wind energy facilities as defined herein shall not be allowed in any zoning district or on any land in the Town of Berne. Should this prohibition be overturned by a court of law or should the Town of Berne be required to allow siting of an industrial wind facility within the Town pursuant to Article 10 of the Public Service Law (enacted in Chapter 388 of the Laws of 2011), the purpose of this article is to regulate the siting of said facility so that public health, safety and welfare will not be jeopardized.
The Town Board of the Town of Berne enacts this Industrial Wind Energy Facilities Local Law under the authority granted by:
Article IX of the New York State Constitution, § 2(c)(6) and (10).
New York Statute of Local Governments, § 10, Subdivisions 1 and 7.
New York Municipal Home Rule Law, § 10, Subdivision 1(i) and (ii), Subdivision 1a(6), (11), (12), and (14), and Subdivision 1d(3).
New York Town Law § 130, Subdivisions 1 (Building code), 3 (Electrical code), 5 (Fire prevention), 7 (Use of streets, highways, sidewalks and public places), 7-a (Location and construction of driveways), 11 (Peace, good order and safety), 15 (Promotion of public welfare), 15-a (Excavated lands), 16 (Unsafe buildings and collapsed structures), 19 (Trespass), and 25 (Building lines).
New York Town Law § 64, Subdivisions 17-a (protection of aesthetic interests), and 23 (General powers).
New York Real Property Tax Law § 487.
The Town Board of the Town of Berne hereby finds and declares that:
While wind energy is a renewable energy resource, there are significant impacts, including noise, shadow flicker and aesthetic and physical hazards, such that the potential benefits must be balanced against potential impacts.
The generation of electricity from properly sited small wind turbines can be a mechanism for reducing on-site electric costs, with a minimum of environmental impacts. The Town of Berne has enacted a law which allows for the siting of residential wind energy facilities in the Town.
Regulation of the siting and installation of wind energy facilities is necessary for protecting the health, safety, and welfare of neighboring property owners and the general public.
Industrial wind energy facilities represent significant potential aesthetic impacts because of their large size, noise, lighting, and shadow flicker effects.
The Town of Berne has many areas with significant viewshed, which would be significantly impaired if the viewshed included industrial wind energy facilities.
The Town of Berne highly values its historic resources. Full appreciation of these resources requires that the setting remain the rural landscape in which they were built. Construction of industrial wind energy facilities in the Town would have a significant adverse impact on such settings.
The State Historic Preservation Office (SHPO) has found that every wind farm in the state it has reviewed has a negative impact on the historical resources of the host community.
The SHPO has particularly noted the impact on historic cemeteries. These resources would be negatively impacted by the noise, shadow flicker, and visual imposition of industrial wind energy facilities in the Town.
Radio and television towers installed and operating in the Town of New Scotland are visible from several areas of the Town of Berne during the day and display flashing red lights at night. The view of these towers impairs the enjoyment of the north east-facing viewsheds in those areas. Should industrial wind energy facilities be installed in the Town of Berne, they would likely impair viewsheds within the Town, as well as viewsheds well beyond the borders of the Town.
The high elevation of the Town of Berne, distance from suburban and urban areas, and the lack of streetlights outside of hamlets result in clear, dark night skies as compared to the lower elevation metropolitan areas. The relatively dark skies offer opportunities for astronomy, astrophotography and casual stargazing. The presence of flashing lights, strobe lights or rotating blades from industrial wind energy facilities will impair the enjoyment of this resource.
Installation of industrial wind energy facilities can create drainage problems through erosion and lack of sediment control for facility and access road sites and harm farmlands through improper construction methods.
The Town of Berne does not have the low density of residences typically found in wind farm host communities where industrial wind energy facilities have found their greatest acceptance and the wind resource is strongest, such as in North Texas, Iowa or Wyoming. Higher-density land use in Berne intermingles residential properties with agricultural properties.
There are significant recreational resources in the Town of Berne that would be harmed by the construction of industrial wind energy facilities in the Town, including parks, trails, hunting grounds, and state lands. There would be a negative impact on these resources by the inclusion of one or more industrial wind energy facilities across the landscape of the Town.
The Town of Berne has many snowmobile trails transecting many of its open areas and hilltops. Wind turbines accumulate and shed ice, 60% of which has been shown to be thrown beyond the rotor radius. (See Cattin, et al., 2007.) This phenomenon creates a potential hazard to riders.
Industrial wind energy facilities may present risks to the property values of adjoining and neighboring property owners.
Industrial wind energy facilities may be significant sources of noise, which, if not properly and adequately regulated, can negatively impact adjoining and neighboring properties, particularly in areas of low background noise levels.
Numerous residents of towns that have industrial wind energy facilities have complained about high sound levels from operation of industrial wind energy facilities installed near homes. These complaints have occurred despite the fact that preconstruction analytical predictions concluded that sound levels would be within acceptable limits. This may be due to factors such as atmospheric conditions, temperature inversions, wind layers, geography and low-frequency noise which travels further with greater intensity than higher-frequency noise. In addition, at night, when air stabilizes near ground level, elevated wind turbine noise can travel further than expected and can be 5 to 15 dB(A) louder than predicted with conventional models. (See Kamperman and James, 2008; Acoustic Ecology Institute Special Report: Wind Farm Noise, Science and Policy, 2011.) This leads to the conclusion that preconstruction analytical predictions of sound must comply with appropriate standards and be independently verified. Minimum setbacks from residences are necessary to mitigate noise impacts due to the uncertainty of these models.
While mechanical sounds of wind turbines have been reduced by modern designs, such as the gearless or direct-drive turbines, aerodynamic sounds by air turbulence around the turbine blades have increased with increasing turbine size.
The closer people live to wind energy facilities, the more likely they will experience noise annoyance or develop adverse health effects from noise. However, it is common for those located very close to a wind energy facility or facilities to hear less noise than those farther away, due to the formation of a shadow zone upwind of the turbine. This has been demonstrated by the ongoing problems reported by residents in towns such as Fairfield (Herkimer County), in which industrial wind energy facilities have become operational recently. This has also been demonstrated by continuing reports of problems related to noise at other recent wind energy projects throughout the United States. Further, the degree of difficulties resulting from the sound of industrial wind energy facilities seems clearly related to the distance from the turbines, though the literature has studied a variety of turbine sizes in a variety of locations. A setback of 2,460 feet from residences would eliminate most noise complaints. Research conducted by Bajdek (2007) showed that at approximately 0.8 km (1/2 mile) from wind turbines, 44% of the population would be highly annoyed by wind turbine noise. At a distance of approximately 1.62 km (one mile) from wind turbines, the percentage of highly annoyed people is expected to drop to 4%. Kamperman and James reviewed several studies to determine the impact of wind turbine noise on nearby residents. Their review showed that some residents living as far as two miles from wind turbines complained of sleep disturbance from turbine noise, and many residents living 1,000 feet from wind turbines experienced major sleep disruption and other health problems from nighttime turbine noise. Van den Berg (2006) studied a wind farm in northwestern Germany and discovered that residents living 500 meters (1,640 feet) from the wind turbines reacted strongly to wind turbine noise, and residents up to 1,900 meters (1.18 miles) from the wind turbines expressed annoyance. A survey conducted by Pedersen and Waye (2008) found that less than 10% of the respondents experienced sleep disturbance at distances of 1,984 feet to 3,325 feet and found that the sound from wind turbines was of greater concern in rural environments because of the lower ambient noise.
Several studies recommend wind turbines be located between 1/2 mile to over one mile from residences. To avoid adverse noise impacts, the Western Australia Planning Commission Bulletin recommends that wind energy systems include sufficient buffers or setbacks to residences of one km (0.62 mile). The National Wind Collaborating Committee states that an appropriate setback distance may be up to 1/2 mile. The National Research Council states that noise produced by wind turbines generally is not a major concern for humans beyond one mile or so. The Wisconsin towns of Woodville, Clay Banks, Magnolia, Wilton and Ridgeville recently adopted large wind turbine ordinances with setbacks of 1/2 mile from residences. The French National Academy of Medicine and the UK Noise Association suggest a 1.5 km (approximately one mile) distance between large wind turbines and residences. See Gueniot (2006); Dr. Amanda Harry (2007), Dr. Nina Pierpont (2006), and Frey and Hadden (2007) recommend a setback greater than one mile.
It is noted that the Wind Turbine Handbook (Burton, 2001, January 2008 printing) notes that a ten-rotor-diameter setback is likely necessary to protect from the impact of noise, shadow flicker and visual domination. The Department of the Environment, Northern Ireland (2009), establishes a best practice guideline of a separation distance between a WECS and occupied property of 10 times the rotor diameter.
It is noted that The New York State Department of Environmental Conservation document, Assessing and Mitigating Noise Impacts (2001), teaches that sound levels that are zero to 5dB above ambient are "unnoticed to tolerable," whereas noise increases over five dB are considered "intrusive." This document further states: "Appropriate receptor locations may be either at the property line of the parcel on which the facility is located or at the location of use or inhabitance on adjacent property," and "The most conservative approach uses the property line."
Background sound levels in rural residential areas in New York are commonly in the range of 20 dB(A) to 30 dB(A) at night. (See Kamperman and James (2008), pg. 2.)
A C-weighted sound determination [dB(C)]is needed to minimize adverse health effects from low-frequency noise. A dB(C) requirement will likely result in setbacks between industrial wind turbines and nearby residences of one km, (0.62 miles) or greater for 1.5 to three MW wind turbines if wind turbines are located in rural areas where L90(A) background levels are close to 30 dB(A). (See Kamperman and James; WHO 1999; Bajdek Noise-Con 2007; Pedersen and Waye 2008.)
Wind turbines may present a risk to bird and bat populations.
Construction of industrial wind energy facilities can create traffic problems and damage local roads.
Many seasonal and year-round residents rely on wireless telephone service for both routine and emergency communications. Similarly, many residents rely on broadcast data and television. If improperly sited, industrial wind energy facilities can interfere with these or other types of communications. It is difficult to analytically predict the impact on radio communications from utility-scale wind energy facilities, yet the potential impairment of access to emergency services is an unacceptable risk.
Sufficient areas exist in New York State for the placement of any needed industrial wind energy facilities. Wind energy facilities are being constructed in other communities in the region. Hundreds of megawatts of wind-energy-generating facilities are being constructed throughout the region in areas where the facilities do not present the same intrusion on the landscape, and therefore have less impact.
The United Kingdom Civil Aviation Authority details radar interference caused by industrial wind facilities (See CAP 764:CAA Policy and guidelines on wind turbines) which could interfere with LifeNet transport and New York State Police Helicopter Program rescue operations in certain areas of the Town. Given the rural nature of the Town of Berne and its road travel distance from Albany, any potential interference or delay in emergency evacuation services presents an unacceptable risk to the public.
According to a National Agricultural Aviation Association article on meteorological ("met") towers, "Met testing towers are used for gathering wind data during the development and siting of wind energy conversion facilities. The met towers consist of galvanized tubing that are assembled at the site, and raised and supported using guy wires. Agricultural pilots, emergency medical services (EMS) operations, fish and wildlife, animal damage control, aerial fire suppression, and any other low-level flying operation may be affected. The fact that these towers are narrow, unmarked, and grey in color makes for a structure that is nearly invisible under some atmospheric conditions." This has lead to at least one fatality, described in National Transportation Safety Board, Preliminary Report Aviation NTSB ID: WPR11LA094. Wind measurement towers are typically sized to avoid regulatory review by the FAA.
An industrial wind energy facility is typically hundreds of feet tall. Decommissioning of such a structure is complex, dangerous work. Material scrap values vary greatly on daily to yearly time scales. Thus, it is inappropriate to accept scrap values as security for decommissioning.
Adverse health effects from wind turbine noise can be exacerbated by the rotating blades and shadows from the wind turbines. As wind turbine blades rotate in front of a rising or setting sun, they cast a strobe-like flicker that cannot be avoided by occupants. Shadow flicker can cause some people to become dizzy or nauseated or lose their balance when they see the movement of the shadow. Shadow flicker from wind turbines at greater than three Hz poses a potential risk of inducing photosensitive seizures. While turbines are generally designed to avoid shadow flicker of this frequency, higher frequencies can be generated if the shadow from two or more turbines are combined. Recent research has indicated that the risk of seizures does not decrease appreciably until the viewing distance exceeds 100 times the height of the hub, a distance typically more than four km (2.5 miles). [See Harding, et al. (2008)]. Smedley, et al. (2010), however concluded that the risk of seizures diminished when the observer was greater than 1.2 times the turbine height and looking directly into the sun but noted that eye closure is a natural immediate protective action when exposed to flicker, and so has the unfortunate consequence of exacerbating its adverse effect in this context. Considering that an observer might close the eyes, Smedley, et al., found that "For the scenarios considered, we find the risk is negligible at a distance more than about nine times the maximum height reached by the turbine blade, a distance similar to that in guidance from the United Kingdom planning authorities." Further, the National Wind Coordinating Committee (1998) recommends a setback of 10 rotor diameters to avoid shadow flicker on occupied structures. [See also: Cummings (2008); Burton et al. (2001); UK Noise Association (2006); and Pierpont (2006a and 2006b)]. The Town of Berne concludes that wind turbines should be sited such that shadows from wind turbine blades do not fall within 100 feet of residences or anywhere upon nonparticipating properties.
Low-frequency vibrations or infrasound may cause health impacts even if inaudible. Recent field testing in Falmouth, MA, indicated that in a home located 1,300 feet from one turbine and 1,700 feet from another, excessive infrasound was present inside the home while not measurable outside the home. [See Ambrose and Rand (2011).] Previous studies of infrasound from wind turbines have shown levels to be low in outdoor testing, while others have effectively measured infrasound outdoors near turbines when the atmosphere is stable; for example, at night. [(See van den Berg (2006)]. In the Ambrose and Rand study, testing indicated that infrasound was magnified (ten-decibel gain) by a whole-house cavity response and was likened to "living in a drum." The investigators were surprised to experience the same adverse health symptoms described by residents of the house and those near other large industrial wind turbine sites. The onset of adverse health effects was swift, within 20 minutes, and persisted for some time after leaving the study area. Ambrose and Rand correlated their symptoms to turbine operation and infrasound measurements and found that infrasound pulsations at levels sufficient to stimulate the ear's outer hair cells (OHC) and thus cause vestibular dysfunction (See Dr. Salt, 2011.) were present when the turbines were operating. Dysfunctions in the vestibular system can cause disequilibrium, nausea, vertigo, anxiety, and panic attacks, which have been reported near a number of industrial wind turbine facilities. Similar adverse health symptoms have been associated with noise complaints such as "sick building syndrome," correlated by field study to low-frequency pulsations emanating from ventilation systems. [See Burt (1996); Shwartz (2008).] That is, adverse health effects from low-frequency noise exposure in buildings have been studied and confirmed by the acoustics profession. Ambrose and Rand conclude that their study underscores the need for more effective and precautionary setback distances for industrial wind turbines.
If placed too close to a road, the movement of the wind turbine blades and resulting shadow flicker can distract drivers and lead to accidents. [See National Research Council (2007), pg. 161].
The Town of Berne does not have as abundant a wind energy resource as many other areas of the State of New York. The Town Board of the Town of Berne notes that according to the National Renewable Energy Lab, wind energy densities at 50 meters height in and around the Town of Berne are generally rated as "poor" or "marginal," whereas industrial wind energy facilities located in other parts of the state are located in areas rated as "fair" or "good" at the same height. By comparison, offshore areas in the Great Lakes, Long Island Sound or the Atlantic Ocean are rated as "good," "excellent" or "outstanding"; see NREL (2009). The wind resource is often not available in the Town of Berne when needed to meet peak load. The Town Board of the Town of Berne notes that GE Energy (2005, p. 2.5) reports that "The results show that the effective capacities, UCAP, of the inland wind sites in New York are about 10% of their rated capacities, even though their energy capacity factors are on the order of 30%. This is due to both the seasonal and daily patterns of the wind generation being largely 'out-of-phase' with NYISO load patterns. The offshore wind generation site near Long Island exhibits both annual and peak period effective capacities on the order of 40% —nearly equal to their energy capacity factors. The higher effective capacity is due to the daily wind patterns peaking several hours earlier in the day than the rest of the inland wind sites and therefore being much more in line with the load demand. According to NYSERDA's New York State Wind Energy Tool Kit, Albany County is not one of the New York counties considered as having "potentially developable wind resources" for industrial wind projects.
Wind turbines present risks of physical hazards of collapse, blade fragmentation and blade throw which must be considered in establishing setback distances. The California Department of Energy funded a study of the risk of blade throw and fragmentation as an aid in determining setback distances. (See Larwood and van Dam, 2006.) The researchers used a physics-based model which predicted blade fragmentation distances based on the rotor speed but excluded aerodynamic effects such as a blade or fragment being carried by the wind. Since the model did not include the effect of debris being carried by the wind, it may understate throw distances. For example, one catastrophic failure of a wind turbine in Denmark was featured on the Discovery Channel television show, "Destroyed in Seconds." In that event, blade fragments were thrown a distance equivalent to 11.6 rotor diameters. In the Larwood and van Dam study, the researchers concluded that the risk of a blade throw or fragmentation event ranged from 2% to 0.1% per turbine per year. The Town Board makes note of two blade fragmentation events and one tower collapse event at the wind energy facility in the Town of Fenner through 2009, resulting in a catastrophic failure rate of 1.9% per turbine per year through 2009.
Since the State of New York has enacted Article 10 of the Public Service Law, which could potentially allow for construction of utility-scale energy facilities, it is necessary to provide for reasonable substantive development standards.
As used in this Industrial Wind Energy Facilities Local Law, the following terms shall have the meanings indicated:
- ACCESSORY USE
- A use customarily incidental and subordinate to the principal use or building, located on the same lot or premises as the principal use or building.
- AGRICULTURAL OR FARM OPERATIONS
- The land and on-farm buildings, equipment, manure processing and handling facilities, and practices which contribute to the production, preparation and marketing of crops, livestock and livestock products as a commercial enterprise, including a commercial horse boarding operation and timber processing. Such farm operation may consist of one or more parcels of owned or rented land, which parcels may be contiguous or noncontiguous to each other.
- AMBIENT SOUND
- Encompasses all sound present in a given environment, being usually a composite of sounds from many sources near and far. It includes intermittent noise events, such as from aircraft flying over, dogs barking, wind gusts, mobile farm or construction machinery, and the occasional vehicle traveling along a nearby road. Ambient sound also includes insect and other nearby sounds from birds and animals or people. The nearby and transient events are part of the ambient sound environment but are not to be considered part of the long-term background sound.
- The American National Standards Institute.
- The individual or business entity that seeks to secure a license under this article of the Town's Municipal Code.
- BACKGROUND SOUND
- The residual sound heard during lulls in the ambient sound environment as defined by ANSI Standard 12.9, Part 2, and represents the quietest 10% of the time, during any given hour.
- BUILDABLE LOT
- A property which meets the requirements for issuance of a building permit as set forth in the local Building Code. However, for a property which is used for agricultural and farm operations and which is not subdivided into lots for purposes of residential construction, only that portion of the property abutting a public highway and extending not more than 500 feet therefrom which meets the minimum road frontage requirements for issuance of a building permit shall be considered a buildable lot for purposes of this article.
- CODE ENFORCEMENT OFFICER or CEO
- The Code Enforcement Officer appointed by the Town Board of the Town of Berne.
- The A-weighted sound pressure level in decibels. A measure of overall sound pressure level designed to reflect the response of the human ear, which does not respond equally to all frequencies. It is used to describe sound in a manner representative of the human ear's response. It reduces the effects of low frequencies and emphasizes frequencies centered around 1,000 Hz. The resultant sound level is said to be "weighted," and the units are "dB(A)." Sound-level meters have an A-weighting network for measuring A-weighted sound levels [dB(A)] meeting the characteristics and weighting specified in ANSI Specifications for Integrating Averaging Sound Level Meters, 51.43-1997 for Type 1 instruments. In this article, "dB(A)" means "L(A)eq" unless specified otherwise.
- The C-weighted sound pressure level in decibels; similar in concept to the A-weighted sound level [dB(A)] but C-weighting emphasizes sound frequencies between 20 and 200 Hz and does not de-emphasize the frequencies below 200 Hz as A-weighting does. dB(C) is used for measurements that must include the contribution of low frequencies in a single number representing the entire frequency spectrum. Sound-level meters have a C-weighting network for measuring C-weighted sound levels [dB(C)] meeting the characteristics and weighting specified in ANSI SI.43-1997 Specifications for Integrating Averaging Sound Level Meters for Type 1 instruments. In this article, "dB(C)" means "LEQ" unless specified otherwise.
- DECIBEL (dB)
- A dimensionless unit describing the amplitude of sound and denoting the ratio between two quantities that are proportional to power, energy, or intensity. One of these quantities is equal to 20 times the logarithm to the base 10 of the ratio of the measured pressure to the reference pressure, which is 20 micropascals.
- The full environmental assessment form used in the implementation of the SEQRA as that term is defined in Part 617 of Title 6 of the New York Codes, Rules and Regulations.
- The number of oscillations or cycles per unit of time. Acoustical frequency is usually expressed in units of hertz (Hz) where one Hz is equal to one cycle per second.
- The total distance measured from the grade of the property as existed prior to the construction of the wind energy system, facility, tower, turbine, or related facility at the base to its highest point. Height shall include the blade extended in a fully vertical position.
- HERTZ (Hz)
- Frequency of sound expressed by cycles per second.
- HISTORICALLY SIGNIFICANT STRUCTURE
- A structure is presumed to be historically significant to the Town of Berne if it is located within the Town limits and was built prior to 1900. Structures that are associated with important historical figures or events may also be historically significant regardless of when constructed. All structures listed on the New York State or Federal Register of Historic Places are considered significant.
- INDUSTRIAL WIND ENERGY FACILITY
- Also known as utility-scale or commercial wind energy facilities, or wind energy conversion systems (WECS). A wind energy conversion system (WECS), consisting of a wind turbine, a tower, associated control or conversion electronics, and including all related infrastructure, electrical lines and substations access roads and accessory structures, which has a name plate rating of more than 10 kW (10,000 watts).
- INDUSTRIAL WIND ENERGY PERMIT
- A permit issued for an industrial wind energy facility pursuant to this article
- Sound with energy in the frequency range of zero to 20 Hz is considered to be infrasound. It is normally considered to not be audible for most people unless in relatively high amplitude. However, there is a wide range between the most sensitive and least sensitive people to perception of sound, and perception is not limited to stimulus of the auditory senses. The most significant exterior-noise-induced vibration in residences occurs in the frequency range between five and 50 Hz. Levels below the threshold of audibility can cause measurable vibrations within residence interiors. Conditions that support or magnify such vibrations may also exist in human body cavities and organs under certain conditions. See "low-frequency noise (LFN)" for more information.
- International Standards Organization.
- The equivalent steady-state sound level which contains the same acoustic energy as the time-varying sound level during a one-hour period. It is not necessary that the measurements be taken over a full one-hour time interval, but sufficient measurements must be available to allow a valid extrapolation to a one-hour time interval. [Taken verbatim from NYSDEC landfill regulations, 6 NYCRR 260.1.14(p).] LEQ must be reported as an A-weighed or C-weighted sound level, as appropriate, i.e., LAeq or LCeq. For more information, see "sound pressure level," below. LEQ is also considered the average sound level during an hour.
- LOW-FREQUENCY NOISE (LFN)
- Sounds with energy in the lower-frequency range of 20 to 200 Hz. LFN is deemed to be excessive when the difference between a C-weighted sound level and an A-weighted sound level is greater than 20 decibels at any measurement point outside a residence or other occupied structure.
- MEASUREMENT POINT (MP)
- The location where sound measurements are taken such that no significant obstruction blocks sound from the site. The measurement point should be located so as to not be near large objects such as buildings and in the line-of-sight to the nearest turbines. Proximity to large buildings or other structures should be twice the largest dimension of the structure, if possible. Measurement points should be at quiet locations remote from streetlights, transformers, street traffic, flowing water and other intermittent noise sources.
- MEASUREMENT WIND SPEED
- For measurements conducted to establish the background noise levels (LA90 10 min, LC90 10 min, etc.) the maximum wind speed, sampled within five meters (m) of the microphone and at its height, shall be less than two meters per second (m/s) (4.5 mph) for valid background measurements. The wind speed at the WECS blade height shall be at or above the nominal rated wind speed and operating in its highest sound output mode. For purposes of enforcement, the wind speed and direction at the WECS blade height shall be selected to reproduce the conditions leading to the enforcement action while also restricting maximum wind speeds at the microphone to less than four m/s (nine mph). For purposes of models used to predict the sound levels and sound pressure levels of the WECS to be submitted with the application, the wind speed shall be the speed that will result in the worst-case LAeq and LCeq sound levels at the nearest nonparticipating properties to the WECS. If there may be more than one set of nearby sensitive receptors, models for each such condition shall be evaluated, and the results shall be included in the application.
- NAMEPLATE RATING
- The maximum rated electrical output of a WECS.
- Any unwanted sound. Not all noise needs to be excessively loud to represent an annoyance or intrusion, thereby becoming unwanted.
- PROJECT BOUNDARY
- The external property boundaries of parcels owned by or leased by the WECS developers. It is represented on a plot plan view by a continuous line encompassing all WECSs and related equipment associated with the WECS project.
- PROPERTY LINE
- The recognized and mapped property parcel boundary line.
- PROPERTY OWNER
- The owner of a parcel within the project boundary.
- Any residence for habitation, either seasonally or permanently by one or more persons. A residence may be part of a multiresidence or multipurpose building and shall include buildings such as hotels, hospitals, motels, dormitories, sanitariums, nursing homes, schools or other buildings used for educational purposes, or correctional institutions. In addition to existing residences, properties with a validly issued building permit for a residential structure shall also be deemed to be residences for purposes of this article.
- ROTOR DIAMETER
- The swept diameter of the rotating blades of a WECS.
- SENSITIVE RECEPTOR
- A place or property intended for human habitation, whether inhabited or not, including but not limited to public parks, state and federal wildlife areas, the manicured areas of recreational establishments designed for public use, including but not limited to golf courses, camp grounds and other nonagricultural state or federal licensed businesses, hunting grounds, whether private or public, schools, day-care centers, elder-care facilities, hospitals, places of seated assemblage, nonagricultural businesses and residences. These areas are more likely to be sensitive to the exposure of the noise, shadow or flicker, etc., generated by an industrial wind energy facility.
- The New York State Environmental Quality Review Act and its implementing regulations in Title 6 of the New York Codes, Rules and Regulations, Part 617.
- The parcel(s) of land where a wind energy facility is to be placed. The site can be publicly or privately owned by an individual or a group of individuals controlling single or adjacent properties. Where multiple lots are in joint ownership, the combined lots shall be considered as one for purposes of applying setback requirements. Any property which has a wind energy facility or has entered into an agreement for said facility or a setback agreement shall be considered a site.
- SOUND PRESSURE LEVEL
- The level, expressed in decibels, which is equaled or exceeded a stated percentage of time. Sound pressure level is spectrally weighted to correspond to a frequency spectrum of interest. For example, the A-weighted decibel scale [dB(A)] represents those frequencies most readily audible to the human ear. The C-weighted decibel scale [dB(C)] approximates response of the human ear to low-frequency sounds. The G-weighted decibel scale [dB(G)] is designed to measure infrasound.
- STRATEGIC VANTAGE POINT
- A vantage point is a location from which to assess the visual impact of a wind energy facility. A vantage point is considered strategic if the public can be expected to congregate there for educational or civic purposes; religious observance; enjoyment of historic or cultural resources; or for recreation whereby the enjoyment of the natural environment is a key aspect of the recreational activity. Strategic vantage points include both public and private venues. Some examples include: schools, golf courses, churches, public buildings, historically significant structures, parks, museums and cemeteries. Additionally, roads and highways are considered strategic vantage points.
- THIS ARTICLE
- The Industrial Wind Energy Facilities Local Law of the Town of Berne.
- The structural mast on which a turbine is mounted.
- The Town of Berne.
- TOWN BOARD
- The Town Board of the Town of Berne.
- TURBINE HEIGHT
- The height of the WECS to its furthest vertical extension above ground level.
- WIND ENERGY CONVERSION SYSTEM (WECS)
- A machine that converts the kinetic energy in the wind into a usable form (commonly known as a "wind turbine").
- WIND MEASUREMENT TOWER or WMT
- A tower used for the measurement of meteorological data such as temperature, wind speed and wind direction (commonly known as a "met tower").
No industrial wind energy facility shall be constructed, modified, or operated anywhere in the Town of Berne.
No wind measurement tower shall be constructed, modified, or operated in the Town of Berne.
This article shall apply to all areas of the Town of Berne.
Should any wind energy facility be proposed for siting pursuant to Article 10 of the Public Service Law, no Town road may be crossed or licensed for use to permit said facility.
No transfer of any industrial wind energy facility or wind measurement tower, or permit therefor, nor any sale of the entity owning such facility or holding such permit, including the sale of more than 30% of the stock of such entity (not counting sales of shares on a public exchange), shall occur without prior approval of the Town Board, which approval shall be granted upon 1) receipt of proof of the ability of the successor to meet all requirements of this article and 2) written acceptance of the transferee of the obligations of the transferor under this article. No transfer shall eliminate the liability of an applicant or any other party under this article.
The requirements of this Industrial Wind Energy Facilities Local Law shall apply to all industrial wind energy facilities proposed, operated, modified, or constructed in the Town of Berne after the effective date of this Industrial Wind Energy Facilities Local Law.
It is the intent of the Town of Berne to prohibit the construction, modification or operation of industrial wind energy facilities as defined in this Industrial Wind Energy Facilities Local Law. The purpose of this article is to provide substantive standards for industrial wind energy facilities in the event an application is made to the Public Service Commission under Article 10 of the Public Service Law for the construction and operation of industrial wind energy facilities in the Town of Berne.
The following substantive standards shall apply to all industrial wind energy facilities in the Town of Berne in the event an application to construct and operate any industrial wind energy facilities in the Town of Berne is made to the New York Public Service Commission pursuant to Article 10 of the Public Service Law.
Transmission lines. All power transmission lines from the tower to any building or other structure shall be located underground to the maximum extent practicable.
Industrial wind energy facility height. The maximum turbine height of any industrial wind energy facility shall be 250 feet.
Antenna co-location. No television, radio or other communications antennas may be affixed or otherwise made part of any industrial wind energy facility.
Advertising. No commercial advertising signs are allowed on any part of the wind energy facility, including fencing and support structures.
WECS lighting. No WECS shall have external lighting except to comply with government agency requirements. All such required lighting should restrict glare visible from ground level to the maximum extent possible and not be lit except to comply with FAA requirements.
Visual impact mitigation. Applicants shall use the following measures to reduce the visual impact of WECSs to the extent possible:
WECSs shall use tubular towers.
WECSs shall be finished in a single, nonreflective, matte-finished color.
WECSs within a multiple-WECS project shall be constructed using WECSs whose appearance, with respect to one another, is similar within and throughout the project, to provide reasonable uniformity in overall size, geometry, and rotational speeds.
No WECS shall be sited such that it may appear to rise from or hover over a public highway when viewed by the driver of a vehicle looking in the direction of travel.
No WECSs shall be placed so as to have a negative impact on a significant historic structure.
Guy wires. The use of guy wires for WECSs is disfavored. A WECS using guy wires for tower support shall incorporate appropriate measures to protect the guy wires from damage which could cause tower failure.
Microwave links. No WECS shall be installed in any location along the major axis of an existing FCC-licensed microwave communications link where its operation is likely to interfere in the link's operation. If it is determined that a WECS is interfering with a microwave path, the WECS operator shall take the necessary corrective action to eliminate this interference, including relocation or removal of the facilities, or resolution of the issue with the impacted parties. Failure to remedy interference with existing microwave links is grounds for revocation of the wind energy permit for the specific WECS causing the interference.
Waste removal. Solid waste, hazardous waste and construction debris shall be removed from the site and managed in a manner consistent with all appropriate rules and regulations.
Clearing. Wind energy facilities shall be designed to minimize the impacts of land clearing and the loss of open space areas. Land protected by conservation easements shall be avoided when feasible. The use of previously developed areas will be given priority wherever possible.
Wildlife. WECSs shall be located in a manner that minimizes significant negative impacts on animal species in the vicinity, particularly bird and bat species.
Wetlands. Wind energy facilities shall be located in a manner consistent with all applicable state and federal wetlands laws and regulations.
Stormwater. Stormwater runoff and erosion control shall be managed in a manner consistent with all applicable state and federal laws and regulations.
Construction times. Construction of the wind energy facilities shall be limited to the hours of 7:00 a.m. to 7:00 p.m. except for certain activities that require cooler temperatures than possible during the day, subject to approval from the Town.
Water supply. Construction of wind energy facilities shall be managed in a manner that minimizes the impact upon private and public, if any, water supplies.
No WECS shall be placed so as to:
Controls. Each WECS shall be equipped with both manual and automatic controls to limit the rotational speed of the rotor blade so it does not exceed the design limits of the rotor.
Minimum blade height. The minimum distance between the ground and any part of the rotor or blade system shall be 30 feet.
Signs. Appropriate warning signs shall be posted. At least one sign shall be posted at the base of the tower warning of electrical shock or high voltage. The Town Board may require additional signs based on safety needs.
Climbing pegs. No climbing pegs or tower ladders shall be located closer than 12 feet to the ground level at the base of the tower.
Access control. WECSs shall be designed to prevent unauthorized external access to electrical and mechanical components and shall have access doors that are kept securely locked at all times.
Traffic routes. Construction and delivery vehicles for WECSs and wind energy facilities shall use traffic routes established as part of the application review process. Factors in establishing such corridors shall include i) minimizing traffic impacts from construction and delivery vehicles; ii) minimizing WECS-related traffic during times of school bus activity; iii) minimizing wear and tear on local roads (if use of such roads is permitted under this article); and iv) minimizing impacts on local business operations. Wind energy permit conditions may limit WECS-related traffic to specified routes and include a plan for disseminating traffic route information to the public.
Road remediation. If any load exceeds the limits of § 385 of the New York State Vehicle and Traffic Law, the applicant shall be responsible for remediation of damaged roads upon completion of the installation of the WECS. A public improvement bond shall be posted prior to the issuance of any building permit in an amount, determined by the Town Board, sufficient to compensate the Town for any damage to local roads, if such use is authorized under this article, that is not corrected by the applicant. An applicant shall submit an estimate of costs for restoration to the preconstruction quality and character of local roads for the Town's approval prior to construction, and this estimate shall be the basis for the bond.
The equivalent level (LEQ) generated by a WECS shall not exceed 25 dB(A) or 43 dB(C) when measured at the nearest off-site residence or buildable lot. If the A-weighted background sound pressure level, without the WECS, is within five dB of 25 dB or exceeds 25 dB, then the A-weighted criterion to be applied to the WECS application shall be the A-weighted background level + five dB. (Note: For example, if during daytime, the background is less than or equal to 20 dB, then the limit is 25 dB(A) and 43 dB(C). However, if the background is greater than 20 dB, say 24 dB, then the applicable WECS limit is the background level plus five dB, which calculates to 29 dB(A) and 48 dB(C) for this example.)
In all cases, the corresponding C-weighted limit shall be the operable A-weighted limit plus 18 dB. The application shall include certification by an independent acoustical engineer as to the predicted A- and C-weighted WECS sound levels at potentially impacted residential sites. The engineer, or the firm with which the engineer is associated, shall be a member of the National Council of Acoustical Consultants (NCAC) with a specialty in environmental noise and shall be a member, board-certified, of the Institute of noise control Engineering of the USA. The background shall be measured and predicted in accordance with Subsection C below.
A-weighted background sound levels shall be based on measured hourly L90 levels gathered over a sufficient time to characterize each of the following three time periods, respectively. The day shall be divided into three time periods: 1) daytime, the hours from 7:00 a.m. to 7:00 p.m., 2) evening, the hours from 7:00 p.m. to 10:00 p.m., and 3) nighttime, the hours from 10:00 p.m. to 7:00 a.m. If insect noise possibly can dominate some of the hourly L90 measurements, then Ai-weighted (See Schomer, Paul D., et al., "Proposed Ai-Weighting: a weighting to remove insect noise from A-weighted field measurements," InterNoise 2010, Lisbon Portugal, 13-16 June 2010.) shall be used in lieu of the standard A-weighting, or measurements shall not be made when insect noise possibly can dominate some of the hourly L90 measurements. The background shall be reported by time period, and computed as follows. The minimum hourly L90 shall be tabulated by time period and by day, and the arithmetic average of these measurements by time period over all the days of measurement shall be computed. These three averages of daily minima shall be reported as that site's daytime, evening, and nighttime A-weighted background levels, respectively. (Note: In relatively quiet areas, insect noise, especially during summer months, can easily dominate the A-weighted ambient sound level. This occurs partly because the primary frequencies or tones of many, if not most, insect noises are in the range of frequencies where the A-weighting is a maximum, whereas most mechanical and WECS noises primarily occur at the lower frequencies where the A-weighting significantly attenuates the sound. Also, insect noises and bird songs do not mask WECS noise at all because of the large differences in frequencies or tones between them.)
Parcels three acres or smaller. The A-weighted background measurements shall be made along the line from the nearest proposed WECS to the residence in question. If the parcel of land has no residence, then the line shall terminate within 25 feet of the center of the parcel. The actual position of the microphone shall be within the property in question and should be within 25 feet to either side of the line, no closer than 50 feet to the property boundary, and no closer than 25 feet to the house or any other structures. If positioning within this "measurement box" is not possible because of unique site conditions such as the position being underwater or the property being too small, then the unique conditions shall be fully documented and an alternate position selected and justified.
Parcels larger than three acres. The A-weighted background measurements shall be made along the line from the nearest proposed WECS to the residence in question. If the parcel of land has no residence, then the line shall terminate within 50 feet of the center of the parcel. The actual position of the microphone shall be within the property in question, shall be within 50 to 500 feet of the residence or within zero to 500 feet of the parcel center, as applicable, should be within 50 feet to either side of the line, shall be no closer than 50 feet to the house or any other structure, and shall be no closer than 50 feet to the property boundary. If positioning within this "measurement box" is not possible because of unique site conditions such as the position being underwater or the property being too small, then the unique conditions shall be fully documented and an alternate position selected and justified. The microphone shall be no closer than 50 feet to the house or any other structures.
Measurement requirements. The microphone shall be situated between four and 4.5 feet above the ground. Measurements shall be conducted within the general provisions of ANSI S1.13-2005, and using a meter that meets at least the Type 2 requirements of ANSI S1.4 and S1.4A-1985 (R2006). The meter noise floor shall be 20 dB(A) or lower. The report shall include each hourly measured A-weighted L90 level, the tabulated daily minima by time period, and the three time period averages. The report also shall include a sketch of the site showing distances to the structure(s), to the property line, etc., and several photographs showing the structure(s), the property, and the acoustical instrumentation. All instrumentation shall be listed by manufacturer, model, and serial number. This instrumentation listing also shall include the A-weighted noise floor and the one-third-octave-band noise floors, if utilized, for each meter used.
Background measurements shall be conducted throughout the area using sufficient sites to generally characterize the background sound levels. It is anticipated that background sound measurements will be performed at nine to 12 locations. The Town shall contract for the background measurements and determination of background levels for general areas of the Town such that every parcel is assigned a background level for daytime, evening, and nighttime. The contractor shall be a member of the National Council of Acoustical Consultants (NCAC) with a specialty in environmental noise, and the consultant's project leader shall be a member, board-certified, of the Institute of Noise Control Engineering of the USA. The WECS applicant shall pay for the contract to measure and determine background levels. This payment shall include the cost of the contract, the cost of letting the contract, and the cost of supervising the contractor. The number of measurement sites and study plan shall be developed jointly between the Town and the contractor, with input from the public and from the applicant.
The starting point for predicting WECS A- and C-weighted levels at potentially impacted residential parcels shall be the manufacturer-supplied octave-band sound power levels as measured by the manufacturer in accordance with International Standard for Acoustic Noise Measurement Techniques for Wind Generators (IEC 61400-11). At a minimum, the octave-band data shall include the 10 octave bands with nominal center frequencies ranging from 16 Hz to 8,000 Hz (See ANSI S1.6-1984.), and the sound power levels for these bands shall be tabulated in the report. Any data not available from the manufacturer shall be estimated from field measurements on like wind turbines already in use. Any such field measurements shall be described fully and documented in the report. In order to model the worst-case condition, the noise level corresponding to the maximum power setting shall be used, assuming stable atmospheric conditions. Modeling shall not assume or otherwise take into account wind-induced sound at near-ground elevations.
For sites at which A-weighted background measurements were performed, the A- and C-weighted WECS sound level predictions shall be made at the same point and for the nearest WECS (if more than one).
For all other sites, a prediction point shall be selected that is as close as possible to the nearest WECS while being within the "measurement box" delineated above. The octave-band sound pressure levels shall be predicted at the prediction point for at least each of the four nearest proposed WECSs (if more than four are proposed) using sound propagation algorithms given by ISO 9613-2, with G and Gm in Table 3 of ISO 9613-2 set to 0.0. That is, the coefficients for delineating between an acoustically hard and an acoustically soft surface are each set to 0.0 for the source, middle, and receiver regions. (See Kaliski, Kenneth and Duncan, Eddie, "Propagation Modeling Parameters for Wind Power Projects," Sound & Vibration, pp. 12-15, December 2008.) Calculations for the 16 and 31.5 octave bands shall use the 63 Hz octave-band algorithms contained in ISO 9613-2 with no factor for air absorption. No sound barrier shall be included in the calculations. For each such prediction, the A- and C-weighted level shall be calculated by applying the A- and C-weighting values from ANSI S1.4, then by adding the weighted mean square pressures, and finally by converting back to decibels. The overall predicted A- and C-weighted levels shall be the sum of the individual levels added on the basis of the mean square pressures.
Any noise level falling between two whole decibels shall be rounded to the nearest whole decibel.
The applicant shall provide all calculations, data and assumptions in electronic format to verify compliance with this section; if computer modeling is utilized to predict project sound levels, the raw input data to the model shall be provided and sufficient additional data to allow the model runs on which the applicant relies to be reproduced.
Enforcement shall be by measurement. The Town shall contract for any enforcement measurements. The cost shall be borne by the present owner of the WECS. The contractor shall be a member of the National Council of Acoustical Consultants (NCAC) with a specialty in environmental noise, and the consultant's project leader shall be a member, board-certified, of the Institute of Noise Control Engineering of the USA.
The duration of any WECS measurement shall be 30 minutes. During the thirty-minute period, the equivalent level (LEQ) generated by the WECS shall be measured. The measurement location shall be at any residential property as given in § 187-27A, and at any point on this residential property at which the background sound level may be measured per § 187-27C. Measurements shall be entirely within the appropriate time period, e.g., during nighttime for nighttime enforcement, and the WECS shall operate continuously during the thirty-minute measurement.
The microphone shall be situated between four and 4.5 feet above the ground. Measurements shall be conducted within the general provisions of ANSI S1.13-2005, and using a meter that meets at least the Type 2 requirements of ANSI S1.4 and S1.4A-1985 (R2006). The instrument noise shall be at least 10 dB below the lowest level measured.
A calibrator shall be used as recommended by the manufacturer of the sound level meter.
The fundamental level of the calibrator and the sensitivity of the sound level meter shall be verified annually by a laboratory using procedures traceable to the National Institute of Standards and Technology.
A wind screen shall be used as recommended by the sound level meter manufacturer.
An anemometer shall be used and shall have a range of at least five to 15 miles per hour (2.2 to 6.7 meters per second) and an accuracy of at least ± two miles per hour (± 0.9 meters per second).
A compass shall be used to measure wind direction to at least an eight-point resolution: N, NE, E, SE, S, SW, W, NW.
Measurements shall be A-weighted, or, alternatively, in one-third-octave bands. For A-weighted measurements, the uncertainty (tolerance) of measurements shall be one dB for a Type 1 meter and two dB for a Type 2 meter. For one-third-octave-band measurements, the meter shall meet the Type 1 requirements of ANSI S12.4 and S12.4a-1985 (R2006), and the uncertainty of measurements shall be five dB in each and every one-third-octave band.
For all measurements, the surface wind speed, measured at a height of 1.5 meters, shall be less than five meters per second.
All measurements shall be corrected for the background on the basis of mean square pressures. For one-third-octave-band measurements, each one-third-octave band shall be individually corrected for the background in that band. That is, both the sound level of the WECS (which always includes the background) and the background sound level alone shall be measured in each one-third-octave band. For either A-weighted data or one-third-octave-band data, the background shall be measured during a like period when the WECS is not operating, and Table I shall be used to correct for the background, by band, in the case of one-third-octave-band data. A "like period" means the same or like location, like surface wind speed and direction, like time of day and day of the week (e.g., Monday through Thursday night, Friday or Saturday night, or Sunday night), etc.
After correction, when using data measured in one-third-octave bands, all remaining bands, excluding bands set equal to zero, shall be converted to A-weighted bands and then shall be summed on a mean square pressure basis to establish the WECS background-corrected A-weighted sound level.
Table I. Table I correction, in dB, that shall be subtracted from the WECS sound level measurement (which always includes the background sound level) because of the background sound so that the result is just the sound level of the WECS alone (See Note 1 below):
The report shall include a sketch of the Site showing distance to the structure(s), to the property line, etc., and several photographs showing the structure(s), property, and the acoustical instrumentation. All instrumentation shall be listed by manufacturer, model, and serial number. This instrumentation listing shall include the A-weighted noise floor and the one third octave band noise floors, if utilized, for each sound level meter used.
Each WECS shall be located with the following minimum setbacks, as measured from the center of the WECS:
Ten rotor diameters from the property line of off-site residences or buildable lots.
Four turbine heights from the nearest on-site residence.
One-hundred feet or the rotor radius, whichever is more, from state-identified wetlands, except where permits for other setbacks have been received from the New York State Department of Environmental Conservation, or federal wetland permits issued by the United States Army Corps of Engineers.
Three times the sum of the hub height plus rotor diameter from a public highway.
Operation. A WECS shall be maintained in operational condition at all times, subject to reasonable maintenance and repair outages. Operational condition includes meeting all noise requirements and other permit conditions.
Violations of permit conditions. A WECS is noncompliant and must be shut down immediately if it exceeds any of the limits in § 187-27 of this Industrial Wind Energy Facilities Local Law.
Inoperative WECS. If any WECS remains nonfunctional or inoperative for the continuous period of one year, the WECS shall be decommissioned.
WECS removal and remediation. WECS removal shall include removal of all aboveground equipment, removal of foundations to a depth of 3.0 feet below grade, restoration of soil conditions, and restoration of vegetation to be consistent and compatible with surrounding vegetation.
Decommissioning fund. The permitee, or successors, shall continuously maintain a financial assurance mechanism for the costs of decommissioning and removal of all WECSs on site and the remediation of all disturbed areas of land sufficient to assure no discharge of sediments or other pollutants following decommissioning (decommissioning, removal and remediation) in a form approved by the Town, for the period of the life of the facility. The financial assurance mechanisms must ensure that funds will be available in a timely fashion when needed and shall not include the future value, if any, of scrap. If a bond is posted to meet this requirement, the bond issuing company must have a current A.M. Best rating of A- or higher. All decommissioning, removal and remediation fund requirements shall be fully funded before a building permit is issued.
Permit fees, host community payments, and escrow payments are in addition to application fees.
Building permits. The Town believes the review of building and electrical permits for wind energy facilities requires specific expertise for those facilities. Accordingly, the permit fees for such facilities shall be $250 per permit request for administrative costs, plus the amount charged to the Town by the outside consultant hired by the Town to review the plans and inspect the work. The Town and the applicant will agree to a fee arrangement and escrow agreement to pay for the costs of the review of the plans.
Host community agreements. Nothing in this article shall be read as limiting the ability of the Town to enter into host community agreements with any applicant to compensate the Town for expenses or impacts on the community. Unless otherwise agreed upon between the Town and the applicant, the wind energy permit annual fee shall be $8 per kW of nameplate rating and shall be adjusted annually for inflation based on changes in the consumer price index as published by the United States Bureau of Labor Statistics.
Staff. The Town Board shall appoint such Town staff or outside consultants as it sees fit to enforce this article.
Any person owning, controlling or managing any building, structure or land who shall construct or operate a wind energy facility in violation of this article or in noncompliance with the terms and conditions of any permit issued pursuant to this article, or any order of the Code Enforcement Officer, and any person who shall assist in so doing, shall be guilty of an offense and subject to a fine of not more than $350 or to imprisonment for a period of not more than six months. 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 in the amount of $350 for each violation, and each week said violation continues shall be deemed a separate violation.
In case of any violation or threatened violation of any of the provisions of this article, including the terms and conditions imposed by any permit issued pursuant to this article, in addition to other remedies and penalties herein provided, the Town may institute any appropriate action or proceeding to prevent such unlawful erection, structural alteration, reconstruction, moving and/or use, and to restrain, correct or abate such violation to prevent the illegal act.
The Town hereby exercises its right to opt out of the tax exemption provisions of Real Property Tax Law § 487, pursuant to the authority granted by Subdivision 8 of that law.