[HISTORY: Adopted by the Board of Supervisors of the Township
of Shirley as indicated in article histories. Amendments noted where
applicable.]
[Adopted 7-28-2011 by Ord. No. 2011-4]
The Shirley Township Board of Supervisors makes the following
findings with respect to the construction, operation and maintenance
of commercial wind turbine generators:
A.
The construction, maintenance and operation of commercial wind turbine
generators which fail to comply with all criteria and regulations
set forth in this article present tangible and immediate dangers to
the public and neighboring landowners in the nature of ejection of
projectiles (ice or injured birds), continuous generation of noise
during nighttime hours and glare from sunlight continually flashing
off of rotating blades.
B.
The construction, maintenance and operation of commercial wind turbine
generators present a danger following the useful life of the commercial
wind turbine generators from deteriorating structures if provisions
for decommissioning are not made as required by this article.
C.
The construction, maintenance and operation of commercial wind turbine
generators which fail to comply with all criteria and regulations
set forth in this article unreasonably interfere with the reasonable
use, comfort and enjoyment of property in the vicinity and/or endanger
the health, safety and/or welfare of the occupants of the property
in the vicinity and prohibit or deny the property owners and taxpayers
the legitimate enjoyment of their reasonable rights and use of their
property and rights.
D.
The construction, maintenance and operation of commercial wind turbine
generators which fail to comply with all criteria and regulations
set forth in this article, including, but not limited to, the repetitive
noise and glare, visual impacts, flickering reflections and/or shadows,
constitute an unreasonable use of property which causes injury, damage,
harm, inconvenience, annoyance, and discomfort to the property owners
and taxpayers in the legitimate enjoyment of their reasonable rights
and use of their property and rights and constitute a danger to migratory
birds and the watershed.
E.
All commercial wind turbine generators shall meet current standards
and regulations, if any, of any other agency of the state, federal
and local government with the authority to regulate commercial wind
turbine generators.
F.
The purpose of this article is to provide for the construction, operation
and decommissioning of commercial wind turbine generators in Shirley
Township, subject to reasonable conditions that will protect the public
health, safety and welfare.
The Shirley Township Board of Supervisors hereby declares the
construction and maintenance of commercial wind turbine generators
to constitute a nuisance and offensive business, if not constructed
and maintained in accordance with the criteria and regulations set
forth in this article, and provides for their regulation and permitting
under the conditions set forth below in order to avoid the maintenance
of nuisance or offensive businesses within the geographic limits of
Shirley Township.
As used in this article, the following terms shall have the
meanings indicated:
Any and all personal property or structures, which are composed
of generators, blades, towers, bases, components of the aforementioned
and appurtenances of the aforementioned (commercial wind turbine generator,
with the term referring to both the singular and the plural of such
structure), with a rated capacity greater than 25 KW, except stand-alone
wind turbines with a rated capacity of less than 25 KW, constructed
and utilized primarily for residential and farm use.
A.
Design.
(1)
Each commercial wind turbine generator shall consist of a tubular
support, generator, nacelle, and blades. Each commercial wind turbine
generator site will have access roads, underground transmission cabling
to connect the generators to an electric substation, and underground
fiberoptic lines. On-site transmission and power lines between commercial
wind turbines shall, to the maximum extent practicable, be placed
underground. All commercial wind turbine generator sites shall be
designed and constructed in such a fashion as to avoid any disruption
and/or interference with private wells, springs and/or other water
sources. If the applicant/developer shall, during the construction,
operation or decommissioning of any commercial wind turbine generator,
contaminate or cause or permit any public or private water supply
to become contaminated so that such water supply is no longer potable,
the applicant/developer shall immediately remediate the source and
cause of such contamination and shall supply potable water in such
quality and quantity as supplied by the original water source during
the entire period of remediation.
(2)
All commercial wind energy facilities shall be equipped with a redundant
braking system. This includes both aerodynamic overspeed controls
(including variable pitch, tip and other similar systems) and mechanical
brakes. Mechanical brakes shall be operated in a fail-safe mode. Stall
regulation shall not be considered a sufficient braking system for
overspeed protection.
(3)
The applicant/developer shall install commercial wind turbine generators
of two megawatts nameplate capacity each, unless otherwise agreed
to by the Township, which comply with all terms and provisions of
this article.
B.
Maintenance, repair and replacement.
(1)
The applicant/developer shall repair, maintain and replace the commercial
wind turbine generators and associated equipment at all times in a
manner consistent with good utility practices as needed to keep the
commercial wind turbine generators in good repair and operating condition.
For purposes of this article, "good utility practices" shall mean
any of the practices, methods or acts engaged in or approved by a
significant portion of the wind energy development industry during
the relevant time period, or any of the practices, methods and acts
which, in the exercise of reasonable judgment in light of the facts
known at the time the decision was made, could have been expected
to accomplish the desired result at a reasonable cost consistent with
good business practices, reliability, safety and expedition.
(2)
Good utility practice is not intended to be limited to the optimum
practice, method, or act to the exclusion of all others, but rather
to be practices, methods or acts generally accepted in the region.
Under no circumstances shall the definition of "good utility practices"
include any violation, regardless of degree, of any local, state,
and/or federal law, ordinance, rule, and/or regulation.
C.
Signs. No advertising material or signage, other than warning, equipment
information or indicia of ownership, shall be allowed on the commercial
wind turbine generators. This prohibition shall include the attachment
of any flags, decorative signs, streamers, pennants, ribbons, spinners,
or fluttering or revolving devices, but not including weather devices.
D.
Lighting. The commercial wind turbine generators shall not be artificially
illuminated except as required by the FAA or any other applicable
authority. If lighting is required, the lighting alternatives and
design chosen will seek to minimize the disturbance to the surrounding
views.
E.
Aesthetics. The towers and generators of the commercial wind turbine
generators shall have a nonreflective, painted steel finish in a neutral
color, subject to any applicable standards of the FAA or other regulatory
requirements. The blades of the commercial wind turbine generators
are not covered by this section.
F.
Stray voltage/electromagnetic fields (EMF). The applicant/developer
will utilize good utility practices to minimize, to the extent practicable,
the impact, if any, of stray voltage and/or EMF on nonparticipating
property.
No commercial wind turbine generators shall be constructed,
operated or maintained within Shirley Township without a permit for
same. Application for a permit shall be made on forms provided by
the Township, copies of which are attached to and made a part of this
article and marked as Exhibit A.[1] The application form shall include a statement requiring
that the applicant/developer indemnify the Township with respect to
all activities related to the operation of the commercial wind turbine
generators. A separate application shall be filed for each structure.
In addition, the issuance of a permit pursuant to this article will
not relieve the facility owner of any applicable requirements contained
in any other Township ordinance or applicable law, including but not
limited to the Township Subdivision and Land Development Ordinance.[2]
A.
Permit application. The permit application shall demonstrate that
the proposed commercial wind energy facility will comply with this
article.
B.
Among other things, the application shall contain the following:
(1)
A narrative describing the proposed commercial wind energy facility,
including an overview of the project, the project location, the approximate
generating capacity of the commercial wind energy facility, the approximate
capacity of the commercial wind energy facility, and the approximate
number, representative types and height or range of heights of commercial
wind turbines to be constructed, including their generating capacity,
dimensions and respective manufacturers and a description of ancillary
facilities.
(2)
An affidavit or similar evidence of agreement between the property
owner and the commercial facility owner or operator demonstrating
that the commercial facility owner or operator has the permission
of the property owner to apply for necessary permits for construction
and operation of the commercial wind energy facility.
(3)
Identification of the properties on which the proposed commercial
wind energy facility will be located and the properties adjacent to
where the commercial wind energy facility will be located.
(4)
A site plan showing the planned location of each commercial wind
turbine, property lines, setback lines, access roads and turnout locations,
substations, electrical cabling from the commercial wind energy facility
to the substations, ancillary equipment, buildings, and structures,
including permanent meteorological towers, associated transmission
lines and layout of all structures within the geographical boundaries
of any applicable setback.
(5)
Setbacks. The commercial wind turbine generators shall comply with
the following setbacks:
(a)
Civil structures. Each commercial wind turbine generator shall
be set back from the nearest existing (at the time of the building
permit issuance) school, hospital, church or public library a distance
of no less than 3,500 feet.
(b)
Residences.
[1]
Participating residences. For existing (at the time of the building
permit issuance or notice from the Township Building Code Enforcement
Officer that no building permit is required) participating primary
occupied residences, the setback distance from a commercial wind turbine
generator shall be 1 1/2 times the total height of the commercial
wind turbine generator (measured at the highest point of the blade
tip).
[2]
Nonparticipating residences. For existing (at the time of the
building permit issuance or notice from the Township Building Code
Enforcement Officer that no building permit is required) nonparticipating
primary occupied residences, the setback distance from a commercial
wind turbine generator shall be at least 3,500 feet.
[3]
Definition of "participating" and "nonparticipating." For purposes
of this article, "participating" shall mean a property owner or property
(including a residence) that is subject to an agreement or lease with
the applicant/developer. "Nonparticipating" shall mean all property
owners or properties (including a residence) which are not participating
property owners or property.
(c)
Property lines. Each commercial wind turbine generator shall be set back from the nearest nonparticipating property line a distance of no less than 1 1/2 times the total height of the commercial wind turbine generator (measured at the highest point of the blade tip) or at a distance which includes the greater of the setback as set forth in Subsection B(5)(b)[2], which is 3,500 feet.
(d)
Public roads. Each commercial wind turbine generator shall be
set back from the nearest public road a distance of no less than 1 1/2
times the total height of the commercial wind turbine generator (measured
at the highest point of the blade tip), determined at the nearest
boundary of the right-of-way for such public road. Unless conclusive
evidence exists to the contrary, the public road right-of-way is presumed
to be 33 feet.
(e)
Communication and electric lines. Each commercial wind turbine
generator shall be set back from the nearest aboveground public electric
power line or public telephone line a distance of no less than the
greater of 600 feet or 1 1/2 times the total height of the commercial
wind turbine generator.
(f)
Natural resources and historic sites and structures.
[1]
Each commercial wind turbine generator shall be set back a distance
of no less than 3,500 feet from the nearest existing critical and
irreplaceable natural and cultural resource areas of the Township
(at the time of the building permit issuance). These areas include,
but are not limited to, the following:
[a]
Important bird areas (IBA).
[b]
National Wetland Inventory (NWI) wetlands.
[c]
Historic structure listed or eligible to be listed on the National
Register of Historic Places and/or the Registry of Pennsylvania Landmarks
and Historic Sites.
[d]
Any body of water that is equal to or greater than two acres
in size.
[2]
The applicant/developer shall contact and present his/her/its
proposals to each of the following agencies. The applicant/developer
shall copy the Township on any correspondence sent to or received
from the agencies.
[3]
Shirley Township will take into consideration all recommendations
from the following agencies:
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U.S. Fish and Wildlife Service
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PA Field Office
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315 South Allen Street, Suite 322
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State College, PA 16801-4850
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Pennsylvania Historical & Museum Commission
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Bureau for Historic Preservation
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Commonwealth Keystone Building
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400 North Street, 2nd Floor
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Harrisburg, PA 17120-0093
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Department of Conservation and Natural Resources
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Bureau of Forestry
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Central Office
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6th Floor, Rachel Carson State Office Building
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P.O. Box 8552
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Harrisburg, PA 17105-8552
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Pennsylvania Game Commission
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2001 Elmerton Avenue
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Harrisburg, PA 17110-9797
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Pennsylvania Fish and Boat Commission
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1601 Elmerton Avenue
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P.O. Box 67000
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Harrisburg, PA 17106-7000
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(6)
Documents related to decommissioning.
(7)
Other relevant studies, reports, certifications and approvals as
may be reasonably requested by Shirley Township to ensure compliance
with this article.
C.
Within 90 days after receipt of a permit application, Shirley Township
will determine whether the application is complete and advise the
applicant/developer accordingly.
The applicant/developer shall pay to the Township a permit fee
based on the sum of $2,500 per megawatt based upon the applicant/developer's
estimate of the amount of megawatts that will be produced by the commercial
wind turbine generator. The aforesaid permit fee shall be paid upon
approval of the building permit and before the issuance of the building
permit. In addition thereto, any other fees incurred by the Township
(i.e., engineering or legal) as a result of the aforesaid application
shall be paid with the submission of the application and are nonrefundable.
The Shirley Township Board of Supervisors shall establish this fee
and may modify the same in keeping with the Township's experience
with the cost of administering the provisions of this article. Thereafter,
the applicant/developer will pay the Township $2,500 per megawatt
per year for each commercial wind turbine generator actually installed
in the Township (the per-megawatt payment), with an annual cost-of-living
increase based on the consumer price index. Pursuant to the above
terms, the applicant/developer shall agree that the commonwealth may
not impair the right to this payment by the passage of legislation,
executive order or otherwise. Such payments shall be on an annual
basis, payable on the anniversary of installation. Under no circumstances
shall the Township receive less than $2,500 per megawatt per year
plus the annual cost-of-living increase based on the consumer price
index from the applicant/developer.
The applicant/developer must provide written notice of application
to all property owners and tenants occupying property within 2,500
feet of the boundaries of the property upon which the commercial wind
turbine generators will be located. Proof of service of such notice
by certified mail or notarized affidavit of hand delivery must be
provided with the application.
The Township will review the application submitted and deny
the same if it is incomplete in any respect. If the application is
denied, the Township shall notify the applicant/developer in writing,
setting forth the reasons for the denial. In lieu of a denial, the
applicant/developer may request a ninety-day review extension in writing.
If the application is determined to be complete, the Township Secretary
shall place the matter on the agenda for action by the Supervisors
at a public meeting.
The Shirley Township Board of Supervisors, with the assistance
of such consultants as it deems appropriate, shall make a determination
at a public meeting as to whether the application submitted meets
the criteria and regulations set forth in this article and approve
or reject the application based upon that determination in a public
vote.
No permit for the construction, operation or maintenance of
a commercial wind turbine generator(s) shall be granted unless the
applicant/developer demonstrates compliance in its application with
all criteria and regulations set forth in this article.
A.
No waiver by the Township of the obligations of the applicant/developer
shall be deemed to be made unless the same shall be in writing and
be signed by a duly authorized Township official. Each waiver, if
any, shall be a waiver only with respect to the specific instance
involved and shall in no way impair the rights of the Township in
any other respect at any other time. The decision of the Shirley Township
Board of Supervisors on a waiver request shall be considered final.
B.
At the discretion of the Board of Supervisors, waivers may be in
the form of an executed written waiver or nondisturbance easement,
covenant or consent. All of the aforementioned may be recorded in
the office of the Recorder of Deeds of Huntingdon County, Pennsylvania.
Such easement or covenant shall run with the land and, at a minimum,
provide that the said property owner waives and releases any and all
claims, damages and/or losses resulting from higher noise levels,
visual impacts or flickering reflections and/or shadows which may
arise as a result of the location of a commercial wind turbine generator
within the established setback distance of an existing residential
or commercial structure on the property of the owner executing the
same. Such easement, covenant or consent shall meet such requirements
as to form and content consistent with this article as may be required
by the Township.
An applicant/developer granted a permit under this article shall
be under a continuing obligation to meet the performance criteria
and regulations set forth above. The Shirley Township Board of Supervisors
hereby declares that a commercial wind turbine generator(s) which
ceases to meet the criteria and regulations listed above, after construction
pursuant to a permit, shall constitute a nuisance; and following a
thirty-day notice to the applicant/developer at the address listed
on the application for permit of the need for abatement, which remains
not remedied or appealed, the Township may act to remove the structure.
Such notice shall be designated as a notice of violation and may be
appealed as set forth below.
A.
The applicant/developer shall comply with the following noise standards:
(1)
Prior to the construction of any commercial wind turbine generator,
the applicant/developer shall perform the necessary tests to establish
a baseline of the ambient noise levels.
(2)
The applicant/developer shall make a good-faith effort to establish
a noise level attributable to the commercial wind turbine generators
of not more than 45dbA, and 60dbC, within a reasonable margin of error,
as measured from any nonparticipating residence property line;
(3)
The parties acknowledge that the project's construction will
be the source of intermittent noise. The applicant/developer shall
require all contractors to incorporate reasonable noise reduction
measures in order to mitigate the amount of noise generated during
the construction phase.
B.
The commercial facility owner and operator shall make every reasonable
effort to minimize shadow flicker to any occupied building on a nonparticipating
landowner's property.
Every effort should be made to use existing roads and logging
roads. The first 100 feet of any private entrance road leading from
any public road to any commercial wind turbine generator or associated
meteorological tower, communication tower, and auxiliary building
shall be kept mud free through the use of shale or other appropriate
covering.
The applicant/developer shall identify all state and local public
roads to be used within Shirley Township to transport equipment and
parts for construction, operation or maintenance of the commercial
wind energy facility.
A.
The Township Engineer, or a qualified third-party engineer hired
by the Township and paid for by the applicant/developer, shall document
road conditions prior to construction. The engineer shall document
road conditions again 30 days after construction is complete or as
weather permits.
B.
The Township may require that the roads be bonded in compliance with
state regulations to ensure the prompt repair of damaged roads. The
applicant/developer shall comply with all other Township ordinances
with respect to public roads.
C.
Any road damage caused by the applicant/developer or its contractors
shall be promptly repaired at the applicant/developer's expense.
The applicant/developer shall comply with the following safety
standards:
A.
All wiring between the commercial wind turbine generators and the
substations shall be underground to the extent practicable.
B.
The outside of the commercial wind turbine generator towers shall
not be climbable.
C.
The property immediately adjoining the commercial wind turbine generator
shall be fully fenced and closed in with a locked gate.
D.
All access doors to the towers and electrical equipment shall be
locked.
E.
Visible, reflective, colored objects, such as flags, reflectors,
or tape, shall be placed on the anchor points of guy wires and along
the guy wires up to a height of 10 feet from the ground.
F.
Appropriate and clearly visible warning signage shall be placed on
each tower, all electrical equipment, and all entrances.
G.
The applicant/developer shall abide by all applicable local, state
and federal fire code and emergency services guidelines.
H.
The applicant/developer shall, prior to placing a commercial wind
turbine generator into operation, arrange, at his/her/its own expense,
to provide local emergency personnel with proper training as to the
methodology of treating fires and other emergency problems that may
occur at the site of the commercial wind turbine generator.
I.
The applicant/developer shall provide both the property owners and
relevant emergency personnel with keys such that they would be able
to access both the fencing towers and electrical equipment and any
other locked property on the commercial wind turbine generator site.
J.
All commercial wind turbine generators shall be equipped with fire
extinguishers, unless the local Fire Department or Township Engineer
provides written documentation establishing that the same are not
necessary.
K.
Inspections.
(1)
At least once every 36 months, the individual commercial wind turbine
generators shall be inspected by O & M personnel, or its agent,
who is regularly involved in the maintenance, inspection and/or erection
of commercial wind turbine generators, towers and antennas. At a minimum,
this inspection shall be conducted in accordance with the provisions
of this article. This is considered a major inspection.
(2)
At least once every 12 months, a visual inspection from the ground
shall be conducted by O & M personnel. This inspection shall include,
but not be limited to, visual inspection of commercial wind turbine
generators' foundations, structures, guys, and connections for
evidence of settlement or lateral movement, soil erosion, condition
of paint or galvanizing, rust or corrosion, loose or missing bolts,
loose or corroded lightening protection connectors, commercial wind
turbine generators tower plumbness, significant variation in guy sags
(i.e., guy tensions), and other material areas or matters relating
to the structural integrity of the commercial wind turbine generators.
This is considered a minor inspection.
(3)
In addition to the regularly scheduled major and minor inspections set forth in Subsection K(1) and (2) above, a minor inspection, at a minimum, will be conducted if a commercial wind turbine generator or its appurtenances are noted at any time to be visibly damaged. Additionally, a major inspection should be conducted if the visible damage to a commercial wind turbine generator is significant or when, after conducting a minor inspection, significant questions remain about the structural integrity of a commercial wind turbine generator.
(4)
The applicant/developer shall provide an annual letter to the Township
certifying compliance with the inspection requirements of this section.
The applicant/developer shall maintain the following insurance
coverage:
A.
A commercial general liability insurance policy with a financially
responsible insurance company providing for:
(1)
A limit of not less that $2,000,000 for personal or bodily injury
or death to any one person; and
(2)
A limit of not less than $4,000,000 for personal or bodily injury
or death to any number of persons arising from any one occurrence;
and
(3)
A limit of not less that $2,000,000 for any instance of property
damage. This shall include a pollution legal liability clause with
a limit of $2,000,000.
B.
Workers' compensation coverage in an amount required by Pennsylvania
law. The applicant/developer shall require subcontractors and others
not protected under its insurance to obtain and maintain workers'
compensation and employer's liability insurance.
C.
Umbrella liability insurance with coverage to be in excess of the
insurance required above. Limits of liability shall not be less than
$5,000,000 for each occurrence and $5,000,000 in aggregate.
D.
The Township shall be identified as an additional insured on all
insurance policies referenced herein. No policy of insurance shall
be canceled without first providing the Township with at least 30
days' prior written notice of intent to cancel.
E.
Certificates of insurance evidencing compliance with these requirements
shall be provided to the Township. All policies other than workers'
compensation shall be written on an occurrence and not on a claim-made
basis.
F.
Coverage limits contained in this section may be revisited by the
Shirley Township Board of Supervisors. The applicant/developer will
be required to provide updated insurance certificates to document
the amended adequate coverage limits.
A.
The applicant/developer will be responsible for overseeing compliance
with the conditions of a permit issued under this article during the
construction phase of the project. Upon completion of construction,
the applicant/developer shall designate a contact person for the Township,
who will be responsible for overseeing compliance with the conditions
of a permit issued under this article for the duration of the term
of the permit. The applicant/developer shall provide the names, addresses,
daytime telephone numbers and emergency telephone numbers of any other
designated field representative and site manager to the Township.
The Township may make the telephone numbers available to local residents
and officials.
B.
The applicant/developer shall be entitled, upon prior written notice
to the Township, to change the field representative or site manager
or make other changes in the contact information. In addition, the
applicant/developer will make contact information available for the
entity providing operation (monitoring) and maintenance services.
Designated representatives of the Township shall be allowed
to inspect the commercial wind turbine generator sites at any time
after providing reasonable notice to the applicant/developer.
The applicant/developer agrees that the project shall be operated
and maintained consistent with good utility practices for comparable
facilities.
Building permits shall not be issued for construction on the
same parcel as permitted commercial wind turbine generator(s), unless
the party requesting the building permit shall have executed a written
waiver or nondisturbance easement, covenant, consent or any of the
aforementioned which as been recorded in the office of the Recorder
of Deeds of Huntingdon County, Pennsylvania.
If the applicant/developer fails to observe or perform any condition
or provision of this article ("event of default"), the Township shall
give written notice of the violation to the applicant/developer. The
applicant/developer shall commence corrective action within 30 days
of receipt of the Township's notice of violation and shall complete
corrective action within 60 days of receipt of the notice. Any period
of time for which the applicant/developer is unable to commence or
complete corrective action as the result of any material third party
withholding approval of such action shall not be counted against the
applicant/developer. If the applicant/developer is unable to commence
corrective action within 30 days or is unable to complete corrective
action within 60 days for reasons other than delays caused by any
material third party, the applicant/developer shall request in writing
an extension from the Township, which extension shall not be unreasonably
withheld and which may include reasonable conditions in order for
the applicant/developer to receive and maintain such extension. If
the applicant/developer receives notice from any federal, state, county
or local department, agency or commission that the applicant/developer
has breached any applicable statute, regulation, rule or permit administered
by any such federal, state, county or local department, agency or
commission, the applicant/developer shall notify the Township, in
writing, of any alleged violation, order or enforcement proceeding
within seven days of receipt. The applicant/developer shall commence
corrective action within 30 days of notice, from any source, of any
breach and/or violation, and shall complete corrective action within
60 days of receipt of notice. Any period of time for which the applicant/developer
is unable to commence or complete corrective action as the result
of any material third party withholding approval of such action shall
not be counted against the applicant/developer. If the applicant/developer
is unable to commence corrective action within 30 days of notice or
is unable to complete corrective action within 60 days of receipt
of notice for reasons other than delays caused by any material third
party, the applicant/developer shall request an extension from the
Township, which shall not be unreasonably withheld and which may include
reasonable conditions in order for the applicant/developer to receive
and maintain such extension. The following conditions for events shall
constitute cause to revoke any permit issued under this article after
reasonable notice by the Board of Supervisors and an opportunity to
be heard is provided to the applicant/developer:
A.
If the applicant/developer ceases to operate the project, provided,
however, that the applicant/developer shall not be deemed to have
ceased operating the project if the applicant/developer ceases operations
for all or substantially all of the project for a period not exceeding
six months;
B.
If a petition is filed by the applicant/developer under any bankruptcy,
reorganization, arrangement, insolvency, dissolution or liquidation
law of any jurisdiction, whether now or hereafter in effect, and is
not dismissed within 90 days after such filing;
C.
In addition, the Township may revoke a permit issued under this article
if the following conditions are met;
A.
Bonding: decommissioning.
(1)
Before final permit approval, the applicant/developer must submit
to the Shirley Township Board of Supervisors a bond, which shall be
deposited with the Township for financial security, in an amount sufficient
to cover the costs of decommissioning all improvements or common amenities,
including, but not limited to, the commercial windmills and appurtenances,
including the base and footing, stormwater detention and/or retention
basins and other related drainage facilities, and electrical apparatus
and restoration of the land to its original condition, including forestry
plantings of the type and density as the original. The applicant/developer
shall see to it that the bonding company is provided with the name
and identifying information concerning Shirley Township and the fact
that the bond being obtained is for its benefit. It shall further
require that the bonding company provide notification to the Township
as to the continuing validity of the bond and any action or inaction
on the part of the applicant/developer or any other party which in
any way would cause said bond to lapse. Said notification must provide
the Township with at least 30 days' written notice of any such
problems.
(2)
When requested by the applicant/developer, in order to facilitate
financing, the Shirley Township Board of Supervisors may furnish the
applicant/developer with a signed copy of a resolution indicating
approval of the permit contingent upon the applicant/developer obtaining
a satisfactory financial security and meeting all requirements of
this article. The resolution or letter of contingent approval shall
expire and be deemed to be revoked if the financial security agreement
is not executed within 90 days, unless a written extension is granted
by the Township. Such extension shall not be unreasonably withheld
and shall be placed in writing at the request of the applicant/developer.
(3)
Without limitation as to other types of financial security which
the Township may approve, approval shall not be unreasonably withheld.
Federal or commonwealth chartered lending institution irrevocable
letters of credit and restrictive or escrow accounts in such lending
institution shall be deemed acceptable financial security for the
purposes of this section.
(4)
Such financial security shall be posted with a bonding company or
federal or commonwealth charted lending institution chosen by the
party posting the financial security, provided said bonding company
or lending institution is authorized to conduct such business with
the commonwealth.
(5)
Such bond or other security shall provide for and secure to the public
the decommissioning of any improvements.
(6)
The amount of financial security required shall be based upon an
estimate of the cost of decommissioning any improvements and shall
be equal to 100% of the cost. Annually, the Township may adjust the
required amount of the financial security. Subsequent to said adjustment,
the Township may require the applicant/developer to post additional
security in order to assure that the financial security equals said
100%. Any additional security shall be posted by the applicant/developer
in accordance with this subsection.
(7)
The amount of financial security required shall be based upon an
estimate of the cost of decommissioning of any improvements, submitted
by the applicant/developer and prepared by a professional engineer
licensed as such in this commonwealth and certified by such engineer
to be a fair and reasonable estimate of such cost. The Township, upon
the recommendation of the Township Engineer, may refuse to accept
such estimate for good cause shown. If the applicant/developer and
the Township are unable to agree upon an estimate, then the estimate
shall be recalculated and recertified by another professional engineer
licensed as such in this commonwealth and chosen mutually by the Township
and the applicant/developer. The estimate certified by the third engineer
shall be presumed fair and reasonable and shall be the final estimate.
In the event that a third engineer is so chosen, fees for the services
of said engineer shall be paid equally by the Township and the applicant/developer.
(8)
As the work of decommissioning of any improvements proceeds, the
party posting the financial security may request the Shirley Township
Board of Supervisors to release or authorize the release of such portions
of the financial security necessary for payment to the contractor
or contractors performing the work. Any such requests shall be in
writing, addressed to the Shirley Township Board of Supervisors, and
the Shirley Township Board of Supervisors shall have 45 days from
receipt of such request within which to allow the Township Engineer
to certify, in writing, to the Shirley Township Board of Supervisors
that such portion of the decommissioning of any improvements has been
completed. Upon such certification, the Shirley Township Board of
Supervisors shall authorize release by the bonding company or lending
institution of an amount as estimated by the Township Engineer fairly
representing the value of the decommissioning of any improvements
or, if the Shirley Township Board of Supervisors fails to act within
said forty-five-day period, the Shirley Township Board of Supervisors
shall be deemed to have approved the release of funds as requested.
B.
Release from decommissioning bond.
(1)
When the applicant/developer has completed the decommissioning of
all improvements, the applicant/developer shall notify the Shirley
Township Board of Supervisors, in writing, by certified mail, of the
completion of the aforesaid decommissioning of all improvements and
shall send a copy thereof to the Township Engineer. The Shirley Township
Board of Supervisors shall, within 10 days after receipt of such notice,
direct and authorize the Township Engineer to inspect the site. The
Township Engineer shall, thereupon, file a report in writing with
the Shirley Township Board of Supervisors and shall promptly mail
a copy of the same to the applicant/developer by certified mail. The
report shall be made and mailed within 30 days after receipt by the
Township Engineer of the aforesaid authorization from the Shirley
Township Board of Supervisors. Said report shall be detailed and shall
indicate approval or rejection of said decommissioning of all improvements,
either in whole or in part; and if said improvements, or any portion
thereof, shall not be approved or shall be rejected by the Township
Engineer, said report shall contain a statement of reasons for such
nonapproval or rejection.
(2)
The Shirley Township Board of Supervisors shall notify the applicant/developer,
within 30 days of receipt of the engineer's report, in writing,
by certified mail, of the action of said Shirley Township Board of
Supervisors with relation thereto.
(3)
If the Shirley Township Board of Supervisors or the Township Engineer
fails to comply with the time limitation provisions contained herein,
all decommissioning of all improvements will be deemed to have been
approved, and the applicant/developer shall be released from all liability,
pursuant to its performance guaranty bond or other security agreement.
(4)
If any portion of the work shall not be approved or shall be rejected
by the Shirley Township Board of Supervisors, the applicant/developer
shall proceed to complete the same, and, upon completion, the same
procedure of notification, as outlined herein, shall be followed.
(5)
Nothing herein, however, shall be construed in limitation of the
applicant/developer's right to contest or question, by legal
proceedings or otherwise, any determination of the Shirley Township
Board of Supervisors or the Township Engineer.
(6)
Where herein reference is made to the Township Engineer, he or she
shall be a duly registered professional engineer employed by the Township
or engaged as a consultant thereto.
(7)
The Township may prescribe that the applicant/developer shall reimburse
the Township for the reasonable and necessary expenses incurred for
the inspection of decommissioning of improvements. Such reimbursement
shall be based upon a schedule established by resolution. Such expenses
shall be reasonable and in accordance with the ordinary and customary
fees charged by the Township Engineer or consultant for work performed
for similar services in the community, but in no event shall the fees
exceed the rate or cost charged by the engineer or consultant to the
Township when fees are not reimbursed or otherwise imposed.
(a)
In the event the applicant/developer disputes the amount of
any such expense in connection with the inspection of decommissioning
of improvements, the applicant/developer shall, within 10 working
days of the date of billing, notify the Township that such expenses
are disputed as unreasonable or unnecessary, in which case the Township
shall not delay or disapprove a permit related to the development
due to the applicant/developer's request over disputed engineer
expense.
(b)
If, within 20 days from the date of billing, the Township and
the applicant/developer cannot agree on the amount of expenses which
are reasonable and necessary, then the applicant/developer and Township
shall jointly, by mutual agreement, appoint another professional engineer
licensed as such in the Commonwealth of Pennsylvania to review the
said expenses and make a determination as to the amount thereof which
is reasonable and necessary.
(c)
The professional engineer so appointed shall hear such evidence
and review such documentation as the professional engineer, in his
or her sole opinion, deems necessary and render a decision within
50 days of the billing date. The applicant/developer shall be required
to pay the entire amount determined in the decision immediately.
(d)
In the event that the Township and applicant/developer cannot
agree upon the professional engineer to be appointed within 20 days
of the billing date, then, upon application of either party, the President
Judge of the Court of Common Pleas of the Judicial District in which
the Township is located (or if at the time there be no President Judge,
then the Senior Active Judge then sitting) shall appoint such engineer,
who, in that case, shall be neither the Township Engineer nor any
professional engineer who has been retained by, or performed services
for, the Township or the applicant/developer within the preceding
five years.
(e)
The fee of the appointed professional engineer for determining
the reasonable and necessary expenses shall be paid by the applicant/developer
if the amount of payment required in the decision is equal to or greater
than the original bill. If the amount of payment required in the decision
is less than the original bill by $1,000 or more, the Township shall
pay the fee of the professional engineer, but otherwise the Township
and the applicant/developer shall each pay 1/2 of the fee of the appointed
professional engineer.
C.
Remedies to effect completion of decommissioning of improvements.
In the event that any decommissioning of improvements which is required
has not been completed as provided in this article, the Shirley Township
Board of Supervisors is hereby granted the power to enforce any corporate
bond, or other security by appropriate legal and equitable remedies.
If proceeds of such bond or other security are insufficient to pay
the cost of decommissioning of improvements covered by said security,
the Shirley Township Board of Supervisors may, at its option, proceed
with decommissioning of all improvements and may institute appropriate
legal or equitable action to recover the monies necessary to complete
the remainder of the improvements. All of the proceeds, whether resulting
from the security or from any legal or equitable action brought against
the applicant/developer, or both, shall be used solely for the decommissioning
of all improvements covered by such security and not for any other
Township purpose.
Any person who violates any portion of this article shall, in
a civil enforcement proceeding, pay a fine as set by the Shirley Township
Board of Supervisors as provided for in the Second Class Township
Code, 53 P.S. § 66601. This article is deemed to be an ordinance
related to public health and safety, enacted under authority of the
statutes referred to in the preamble hereto and the Township's
general authority to protect public health, safety and welfare. As
such, a penalty of $1,000 shall be assessed as a civil penalty for
any violation hereof. Each day a violation continues shall be considered
a separate and distinct violation and subject to a separate assessment,
until proof of compliance is provided. Notwithstanding any provision
of this article respecting enforcement, the Township reserves the
right to enforce this article through an action for injunction in
the Court of Common Pleas of Huntingdon County pursuant to 53 P.S. § 66601
(c.1)(4). In addition to any civil penalty imposed, any person who
violates this article will be required to pay all court costs and
attorneys' fees accrued by the Township.
A.
Any person aggrieved by any determination or action by the Township
shall have an opportunity to present and explain his/her/its position
before the Shirley Township Board of Supervisors at a public hearing.
Any and all decisions and/or determinations by the Shirley Township
Board of Supervisors may be appealed to the Court of Common Pleas
of Huntingdon County. Any such request to be heard by the Shirley
Township Board of Supervisors shall be in writing and shall include
a complete statement of the reasons the person is aggrieved, together
with a statement of all evidence to be provided to the Shirley Township
Board of Supervisors. The factual basis or summary of any expert testimony
that will be presented at such meeting of the Shirley Township Board
of Supervisors must also be attached.
B.
Failure to request the opportunity to present evidence to the Shirley
Township Board of Supervisors under this subsection within 30 days
from the date of the determination or action by the Township will
result in the waiver of any right to request an opportunity to present
evidence to the Shirley Township Board of Supervisors and/or appeal
to the Court of Common Pleas. The person requesting an opportunity
to be heard under this subsection must provide written notice of the
same to all parties, owners and tenants occupying property within
2,500 feet of the boundaries of the property upon which the commercial
wind turbine generators will be located. Proof of service of such
notice by certified mail or a notarized affidavit of hand delivery
must be included with the request for appeal submitted to the Township.
C.
The appeal shall be accompanied by a fee of $300. The Township shall
be responsible for all costs of the appeal in excess of $300. Failure
to file a complete appeal, together with all statements, may result
in dismissal of the appeal.
It is hereby declared to be the intent of the Township that
these regulations be considered nuisance regulations and not building
regulations under the Uniform Construction Code, authorized by Act
45 of 1999, implemented by regulations of the Commonwealth of Pennsylvania
Department of Labor and Industry.
It is declared that the adoption of this article and the execution,
acknowledgement and delivery of the documents are necessary for the
protection, benefit and preservation of the health, safety and welfare
of the general public of Shirley Township.
