[HISTORY: Adopted by the Town Board of the Town of Berne
as indicated in article histories. Amendments noted where applicable.]
[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:
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.
A single residential wind turbine, including all related
infrastructure, electrical lines, access roads and ancillary structures.
A permit pursuant to this article granting the holder the
right to construct, maintain and operate a residential wind energy
facility.
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.
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.
The height of the tower from ground level to the vertical
extension or sweep of the wind turbine blade or rotor.
The owner of the electric distribution network. Examples
include New York State Electric and Gas, National Grid and Central
Hudson.
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.[1]
A.
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.
B.
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:
C.
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.
A copy of an executed interconnection agreement with the applicable
transmission owner, if applicable.
B.
A completed application for a residential wind energy facility permit.
C.
A site plan prepared by a licensed professional engineer, including:
(1)
Property lines and physical dimensions of the site, including twenty-foot
contour elevations of the site, including adjacent parcels;
(2)
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.
(3)
Location and elevation of the proposed residential wind turbine.
(4)
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.
(5)
Locations of setbacks as required by this article, shown as a building
envelope.
(6)
A graphic representation of the extent of the shadow cast by the
proposed wind turbine throughout the year.
(7)
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.
(8)
A wind rose.
D.
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.
E.
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.
F.
A construction schedule describing commencement and completion dates.
G.
An operations and maintenance plan providing for regular periodic
maintenance schedules and any special maintenance requirements.
H.
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.
I.
List of property owners, with their mailing addresses, within 1,000
feet of the outer boundaries of the proposed site.
J.
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:
(1)
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.
(2)
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.
(3)
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.
(4)
The Planning Board may require further environmental assessment at
its discretion.
A.
A preapplication meeting with the Planning Board is required.
B.
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.
C.
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.
D.
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.
E.
Notice of the project shall also be given to the Albany County Planning
Board, as required by General Municipal Law § 239-m.
F.
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.
A.
The following standards shall apply to residential wind energy facilities
in the Town of Berne:
(1)
All power transmission lines from the tower to any building or other
structure shall be located underground.
(2)
No television, radio or other communication antennas may be affixed
or otherwise made part of any wind turbine, unless approved by the
Planning Board.
(3)
No advertising signs are allowed on any part of the residential wind
energy facility, including fencing and support structures.
(4)
No tower shall be lit except to comply with Federal Aviation Administration
(FAA) requirements.
(5)
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.
(6)
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.
(7)
The residential wind turbine shall be located in a manner so that
there will be no shadow flicker on off-site properties.
(8)
Towers shall be of the freestanding tubular type.
(9)
The total height shall not exceed 125 feet. The rotor shall not exceed
a diameter of 30 feet.
B.
The following safety measures shall be required of all residential
wind energy facilities in the Town of Berne:
(1)
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.
(2)
Warning signs shall be posted at the base of the tower warning of
electrical shock or high voltage and containing emergency contact
information.
(3)
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.
(4)
The minimum distance between the ground and any part of the rotor
or blade system shall be 30 feet.
(5)
Residential wind turbines shall be designed to prevent unauthorized
access to electrical and mechanical components.
(6)
An emergency shutoff switch shall be installed at the bottom of all
residential wind turbines.
C.
The following setbacks shall be required of all residential wind
energy facilities in the Town of Berne to abate noise:
(1)
The residential wind turbine shall be set back as follows:
(a)
On-site residences and other on-site occupied buildings: a distance
no less than three times its total height.
(b)
Property lines: a distance no less than three times its total
height.
(c)
Rights-of-way: a distance no less than three times its total
height.
(d)
Public roads: a distance no less than three times its total
height.
(2)
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.
(3)
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.
A.
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.
B.
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.
C.
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.
D.
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.
A.
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.
B.
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.
A.
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.
B.
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.
C.
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.
A.
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.
B.
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.
C.
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:
A.
Article IX of the New York State Constitution, § 2(c)(6)
and (10).
B.
New York Statute of Local Governments, § 10, Subdivisions
1 and 7.
C.
New York Municipal Home Rule Law, § 10, Subdivision 1(i)
and (ii), Subdivision 1a(6), (11), (12), and (14), and Subdivision
1d(3).
D.
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).
E.
New York Town Law § 64, Subdivisions 17-a (protection of
aesthetic interests), and 23 (General powers).
F.
New York Real Property Tax Law § 487.
The Town Board of the Town of Berne hereby finds and declares
that:
A.
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.
B.
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.
C.
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.
D.
Industrial wind energy facilities represent significant potential
aesthetic impacts because of their large size, noise, lighting, and
shadow flicker effects.
E.
The Town of Berne has many areas with significant viewshed, which
would be significantly impaired if the viewshed included industrial
wind energy facilities.
F.
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.
G.
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.
H.
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.
I.
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.
J.
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.
K.
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.
L.
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.
M.
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.
N.
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.
O.
Industrial wind energy facilities may present risks to the property
values of adjoining and neighboring property owners.
P.
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.
Q.
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.
R.
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.
S.
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.
T.
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.
U.
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.
V.
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."
W.
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.)
X.
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.)
Y.
Wind turbines may present a risk to bird and bat populations.
Z.
Construction of industrial wind energy facilities can create traffic
problems and damage local roads.
AA.
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.
BB.
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.
CC.
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.
DD.
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.
EE.
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.
FF.
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.
GG.
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.
HH.
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].
II.
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.
JJ.
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.
KK.
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:
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.
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.
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.
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.
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.
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.
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.
Frequency of sound expressed by cycles per second.
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.
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).
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.
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.
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.
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.
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.
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.
The recognized and mapped property parcel boundary line.
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.
The swept diameter of the rotating blades of a WECS.
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.
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.
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.
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.
The Town Board of the Town of Berne.
The height of the WECS to its furthest vertical extension
above ground level.
A machine that converts the kinetic energy in the wind into
a usable form (commonly known as a "wind turbine").
A tower used for the measurement of meteorological data such
as temperature, wind speed and wind direction (commonly known as a
"met tower").
A.
No industrial wind energy facility shall be constructed, modified,
or operated anywhere in the Town of Berne.
B.
No wind measurement tower shall be constructed, modified, or operated
in the Town of Berne.
C.
This article shall apply to all areas of the Town of Berne.
D.
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.
E.
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.
A.
Transmission lines. All power transmission lines from the tower to
any building or other structure shall be located underground to the
maximum extent practicable.
B.
Industrial wind energy facility height. The maximum turbine height
of any industrial wind energy facility shall be 250 feet.
C.
Antenna co-location. No television, radio or other communications
antennas may be affixed or otherwise made part of any industrial wind
energy facility.
D.
Advertising. No commercial advertising signs are allowed on any part
of the wind energy facility, including fencing and support structures.
E.
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.
F.
Visual impact mitigation. Applicants shall use the following measures
to reduce the visual impact of WECSs to the extent possible:
(1)
WECSs shall use tubular towers.
(2)
WECSs shall be finished in a single, nonreflective, matte-finished
color.
(3)
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.
(4)
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.
(5)
No WECSs shall be placed so as to have a negative impact on a significant
historic structure.
G.
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.
H.
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.
I.
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.
J.
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.
K.
Wildlife. WECSs shall be located in a manner that minimizes significant
negative impacts on animal species in the vicinity, particularly bird
and bat species.
L.
Wetlands. Wind energy facilities shall be located in a manner consistent
with all applicable state and federal wetlands laws and regulations.
M.
Stormwater. Stormwater runoff and erosion control shall be managed
in a manner consistent with all applicable state and federal laws
and regulations.
N.
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.
O.
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.
P.
No WECS shall be placed so as to:
A.
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.
B.
Minimum blade height. The minimum distance between the ground and
any part of the rotor or blade system shall be 30 feet.
C.
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.
D.
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.
E.
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.
A.
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.
B.
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.
A.
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.)
B.
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.
C.
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.)
(1)
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.
(2)
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.
(3)
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.
(4)
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.
D.
Octave-band data.
(1)
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.
(2)
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).
(3)
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.
E.
Any noise level falling between two whole decibels shall be rounded
to the nearest whole decibel.
F.
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.
A.
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.
B.
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.
C.
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.
D.
A calibrator shall be used as recommended by the manufacturer of
the sound level meter.
E.
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.
F.
A wind screen shall be used as recommended by the sound level meter
manufacturer.
G.
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).
H.
A compass shall be used to measure wind direction to at least an
eight-point resolution: N, NE, E, SE, S, SW, W, NW.
I.
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.
J.
For all measurements, the surface wind speed, measured at a height
of 1.5 meters, shall be less than five meters per second.
K.
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.
L.
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.
M.
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):
|
Δ, difference
|
<3
|
3-4
|
5-6
|
7-10
|
>10
| |
|
K, correction (dB)
|
Notes 2, 3
|
3
|
2
|
1
|
0
|
|
NOTES:
| ||
|---|---|---|
|
1.
|
This table provides a simple correction to measurements of WECS
sound in the presence of the background. For example, the sound of
a WECS (along with the background sound which is always present) is
measured as 40 dB, and the background sound level alone (without the
WECS) is measured as 34 dB(A). Then, the difference in decibels is
six dB (first row, third column), and the corresponding correction
shall be two dB (second row, third column). That is, two dB shall
be subtracted from the measured 40 dB(A) level, and it is adjusted
to and reported as 38 dB(A). The same procedure is followed in each
band for one-third-octave-band data.
| |
|
2.
|
When using directly measured A-weighted levels, if the difference
between the WECS sound level (plus background sound level) and the
background sound level alone is less than three dB, then it shall
not constitute a violation of this chapter.
| |
|
3.
|
When using measured one-third-octave-band data, if the difference
between the WECS sound pressure level (plus background sound pressure
level) and the background sound pressure level alone, each in the
same one-third-octave band, is less than three dB, then the WECS level
for that one-third-octave band shall be set to zero.
| |
N.
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:
A.
Ten rotor diameters from the property line of off-site residences
or buildable lots.
B.
Four turbine heights from the nearest on-site residence.
C.
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.
D.
Three times the sum of the hub height plus rotor diameter from a
public highway.
A.
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.
B.
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.
C.
Inoperative WECS. If any WECS remains nonfunctional or inoperative
for the continuous period of one year, the WECS shall be decommissioned.
D.
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.
E.
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.
B.
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.
C.
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.
A.
Staff. The Town Board shall appoint such Town staff or outside consultants
as it sees fit to enforce this article.
B.
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.
C.
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.
