[Added 7-13-2015 by L.L.
No. 9-2015]
As used in this article, the following terms shall have the
meanings indicated:
A wind energy conversion system consisting of one or two
wind turbines, one or two towers, and associated control of conversion
electronics, with a total height of not more than 165 feet, and is
intended to primarily supply electrical power for the use on the subject
property (net metering is allowed).
[Amended 12-18-2017 by L.L. No. 2-2018]
The support structure, including guyed, monopole, and lattice
types, upon which a wind turbine and other mechanical devices are
mounted.
The height above grade of the uppermost fixed portion of
the tower, excluding the length of any axial rotating turbine blades.
The height of the wind energy conversion system measured
from the ground elevation to the top of the tip of the blade in the
vertical position.
One or more mechanical devices which are designed and used
to convert wind energy into a form of electric energy for sale or
redistribution to others.
A tower used for the measurement of meteorological data such
as temperature, wind speed, and wind direction.
Any piece of electrical generating equipment that converts
wind energy into electrical energy through the use of airfoils, rotating
turbine blades, or similar devices to capture the wind.
A.
The placement, construction, and major modification of all residential
WECS within the boundaries of the Town of Hamburg shall be permitted
only by special use permit within a Residential-Agricultural (R-A)
Zoning District upon concurrent site plan approval issued by the Town
of Hamburg Planning Board, as provided herein, after SEQR review,
with the Town of Hamburg Planning Board designated as lead agency,
and upon issuance of a building permit, and shall be subject to all
provisions of this section.
B.
Applications under this section shall be made as follows:
(1)
Applicants for a special use permit to place, construct, or
modify residential WECS within the Town of Hamburg shall submit the
following information to the Planning Board for its referral to a
professional engineer or consultant for review and recommendation:
(a)
Name and address of the applicant.
(b)
Evidence that the applicant is the owner of the property involved
or has the written permission of the owner to make such an application.
(c)
A site plan drawn in sufficient detail to show the following:
[1]
Location of the tower(s) on the site and the tower height, including
blades, wind turbine diameter, and ground clearance;
[2]
Dimensional representation of the various structural components
of the tower construction, including the base and footing;
[3]
Property lot lines and the location and dimensions of all existing
structures and uses on site within 300 feet of the residential WECS;
[4]
Proposed plan for restoration of the site after construction
according to New York State Department of Environmental Conservation
and Town of Hamburg guidelines and requirements;
[5]
Certification by a registered New York State professional engineer
that the tower's design is sufficient to withstand wind loading requirements
for structures as established by the New York State Uniform Construction
Code; and
[6]
Wind characteristics and dominant wind direction from which
50% or more of the energy contained in the wind flows.
(d)
Specific information on the type, size, height, rotor material,
rated power output, performance, safety, and noise characteristics
of all residential WECS components.
(e)
Photographs or detailed drawings of each residential WECS component
including the tower and foundation.
(f)
An acoustic report shall be furnished for the specific wind
turbine technology which provides sound curve based on production
levels for the overall dB(A) measurement of the wind turbine at different
wind speeds based on field testing. This should be done in accordance
with the Small Wind Certification Council (SWCC) which has standardized
North American reporting on turbine energy and sound performance.
(g)
A report from the turbine manufacturer stating the wind speed
and conditions that the wind turbine is designed to withstand (including
all assumptions).
(h)
A copy of written notification to the Federal Aviation Administration
(FAA), if required, and to Mercy Flight.
(i)
Notification to microwave communications link operators. An
application that includes any residential WECS which is located within
two miles of any microwave communications link shall be accompanied
by a copy of a written notification to the operator of the link.
(j)
An application that includes any residential WECS which is located
within a one-hundred-year floodplain area, as such flood hazard areas
are shown on the floodplain maps, shall be accompanied by a detailed
report which shall address the potential for wind erosion, water erosion,
sedimentation, and flooding, and which shall propose mitigation measures
for such impacts.
(k)
Such additional information as may be reasonably requested by
the Town Engineer or Planning Board.
C.
Special use permits issued for residential WECS shall be subject
to the following conditions:
(2)
Setbacks. Any residential WECS shall adhere to the following
setbacks:
(a)
From all property lines:
[1]
A minimum 1 1/2 times the total height of the residential
WECS from any property line.
(b)
From residential zoning districts (surrounding the required
RA zoned site):
[1]
A minimum 500 feet from any residential zoning district boundary
line.
(e)
From aboveground transmission lines greater than 12 kilovolts:
[1]
A minimum 1 1/2 times the total height of the residential
WECS from any aboveground transmission line greater than 12 kilovolts.
(f)
Notwithstanding the provisions set forth in these subsections,
such setbacks from property lines do not apply if the application
is accompanied by a legally enforceable agreement that runs with the
property for a period of 25 years or the life of the special use permit,
whichever is longer, that the adjacent landowner(s) agrees to the
elimination of the required setbacks. These setback requirements can
only be varied through this agreement process with adjoining landowners
and not through a variance with the Zoning Board of Appeals. Any agreement
to the elimination of such property line setbacks shall not constitute
the reduction or elimination of required setbacks from structures,
as previously identified, and such setbacks from structures, for safety
reasons, shall not be reduced or eliminated.
(3)
Maximum overall height:
[Amended 12-18-2017 by L.L. No. 2-2018]
(a)
The maximum overall height of any residential WECS shall be
165 feet. The maximum height shall be measured from the ground elevation
to the top of the tip of the blade in the vertical position.
(4)
Only one residential WECS per legal lot shall be allowed, unless
the lot is more than 20 acres. In that case (lots greater than 20
acres) a maximum of two WECS are allowed. It must be clearly understood
that by the definition of a residential wind energy conversion system,
these types of systems are not allowed on vacant lands; they must
be associated with a use. Also by the definition, a second wind turbine
could not be placed on a property that only contained a single-family
home, as a single-family home would not have the energy usage to warrant
a second wind turbine. A second wind turbine would only be considered
on a property that includes at least two allowable uses on that site
that would warrant the construction of two wind turbines.
[Amended 12-18-2017 by L.L. No. 2-2018]
(5)
The power produced from the residential WECS shall only be used
for on-site consumption (except for net metering purposes).
(6)
Residential WECS shall be located in rear yards.
(7)
Notification of adjacent property owners.
(a)
All applicants are required to notify all property owners within
1,000 feet of the property line of the proposed parcel where the residential
WECS will be erected, at the time of application (proof of notification
to be provided with the application to the Town).
(b)
The adjacent property owners shall be notified by the Town Planning
Department in writing within 10 days of filing an application for
residential WECS special use permit with the Town of Hamburg. This
notification shall include the size, location, and planned construction
date of the residential WECS.
(9)
Color and finish.
(a)
Wind turbines and towers shall be painted a nonobtrusive (e.g.,
light environmental color such as white, gray, or beige) color that
is nonreflective.
(b)
The design of residential WECS buildings and related structures
shall, to the extent reasonably possible, use materials, colors, textures,
screening, and landscaping that will blend the facility to the natural
setting and the existing environment.
(10)
Lighting.
(a)
Exterior lighting on any structure associated with the system
shall not be allowed except that which is specifically required by
the FAA or requested by Mercy Flight (and approved by the Planning
Board).
(11)
Compliance with regulatory agencies.
(a)
The applicant is required to obtain all necessary regulatory
approvals and permits from all federal, state, county, and local agencies
having jurisdiction and approval related to the completion of the
residential WECS.
(b)
The applicant is required to submit a short (unless a full form
is requested by the Planning Board) Environmental Assessment Form
(EAF) with the Town of Hamburg to comply with the SEQR process.
(12)
Safety and security requirements.
(a)
Safety shutdown. Each residential WECS shall be equipped with
both manual and automatic controls to limit the rotational speed of
the blade within the design limits of the wind turbine. A manual electrical
and/or over-speed shutdown disconnect switches shall be provided and
clearly labeled on the residential WECS. No wind turbine shall be
permitted that lacks an automatic braking, governing, or feathering
system to prevent uncontrolled rotation, over-speeding, and excessive
pressure on the tower structure, rotor blades, and wind turbine components.
(b)
All structures which may be charged with lightning shall be
grounded according to applicable electrical code.
(c)
The blade tip of any wind turbine shall, at its lowest point,
have ground clearance of not less than 30 feet.
(d)
Wind turbine towers shall not be climbable up to 15 feet above
ground level.
(e)
All access doors to residential WECS structures and electrical
equipment shall be lockable and shall remain locked at all times when
operator personnel are not present.
(f)
Anchor points for any guy wires for a system tower shall be
located with the property that the system is located on and not on
or across any above ground electric transmission or distribution lines.
The point of attachment for the guy wires shall be enclosed by a fence
six feet high or sheathed in bright orange or yellow covering from
to eight feet above the ground. The minimum setback for the guy wire
anchors shall be 10 feet from the property boundary.
(g)
Appropriate warning signage shall be placed on wind turbine
towers and electrical equipment. Signage shall also include one twenty-four-hour
emergency contact number to the owner of the wind turbine as well
as signage warning of electrical shock or high voltage and harm from
revolving machinery.
(13)
(14)
Impact on wildlife species and habitat.
(15)
Interference with residential television, microwave, and radio
reception.
(a)
The applicant must submit information that the proposed construction
of the residential WECS will not cause interference with microwave
transmissions, cellular transmissions, residential television interference,
or radio reception of domestic or foreign signals.
(b)
The applicant shall include specific measures proposed to prevent
interference, a complaint procedure, and specific measures proposed
to mitigate interference impacts.
(17)
Unsafe and inoperable residential WECS; site reclamation (see also § 280-363, Permit revocation).
(a)
Unsafe residential WECS, inoperable residential WECS, and residential
WECS for which the special use permit has expired shall be removed
by the owner. All safety hazards created by the installation and operation
of the residential WECS shall be eliminated, and the site shall be
restored to its natural condition to the extent feasible. A bond or
other appropriate form of security shall be required to cover the
cost of the removal and site restoration.
(b)
Every unsafe residential WECS and every inoperable residential
WECS are hereby declared a public nuisance which shall be subject
to abatement by repair, rehabilitation, demolition, or removal. An
inoperable residential WECS shall not be considered a public nuisance,
provided that the owner can demonstrate that modernization, rebuilding,
or repairs are in progress or planned and will be completed within
no more than six months.
(c)
A residential WECS shall be deemed inoperable if it has not
generated power within the preceding six months.
(18)
Erosion control.
(a)
Before the Town of Hamburg shall issue a grading or building
permit for the residential WECS, the applicant shall submit an Erosion
Control Plan to the Engineering Department for its review and approval.
(b)
The Plan shall minimize the potential adverse impacts on wetlands
and Class I and II streams and the banks and vegetation along those
streams and wetlands and minimize erosion or sedimentation.
(19)
Certification.
(a)
The foundation, tower, wind turbine, and compatibility of the
tower with related equipment shall be certified in writing by a structural
engineer registered in New York State. The engineer shall certify
compliance with good engineering practices and compliance with the
appropriate provisions of the Uniform Construction Code that have
been adopted in New York State.
(b)
After completion of the residential WECS, the applicant shall
provide a post-construction certification from a licensed professional
engineer registered in the State of New York that the project complies
with applicable codes and industry practices and has been completed
according to the design plans.
(c)
The electrical system shall be certified in writing by an electrical
engineer registered in New York. The engineer shall certify compliance
with good engineering practices and with the appropriate provisions
of the Electric Code that have been adopted by New York State.
(d)
The wind turbine over-speed control system shall be certified
in writing by a mechanical engineer registered in New York State.
The engineer shall certify compliance with good engineering practices.
(e)
Certificate of completion must be supplied by the applicant
and approved by the Town of Hamburg Code Enforcement Officer.
D.
Monitoring requirements for residential WECS.
(1)
Upon reasonable notice, Town of Hamburg officials or their designated
representatives may enter a lot on which a residential WECS special
use permit has been granted for the purpose of compliance with any
permit requirements. Twenty-four hours' advance notice by telephone
to the owner/operator or designated contact person shall be deemed
reasonable notice.
(2)
Unless waived by the Planning Board, a residential WECS shall
be inspected annually by a New York State licensed professional engineer
that has been approved by the Town or at any other time, upon a determination
by the Town's Code Enforcement Officer, that the wind turbine, tower,
or other residential WECS components have sustained structural damage,
and a copy of the inspection report shall be submitted to the Town
Code Enforcement Officer. Any fee or expense associated with this
inspection shall be borne entirely by the permit holder.
(3)
General complaint process.
(a)
During construction, the Town of Hamburg Code Enforcement Officer
can issue a stop order at any time for any violations of the special
use permit.
(b)
After construction is complete, the permit holder shall establish
a contact person, including name and phone number, for receipt of
any complaint concerning any permit requirements. Upon receipt of
complaint from the Town of Hamburg Code Enforcement Officer, the permit
holder/contact person shall have seven working days to reply to the
Town in writing.
E.
Application fees and costs.
(1)
Applicant shall pay all costs associated with the Town of Hamburg's
review and processing of the application. The applicant shall submit
a deposit with the application in the amount as determined by resolution
by the Town Board. The Town of Hamburg may require additional deposits
to cover the costs of reviewing and processing the application. Such
additional deposits, if requested, shall be promptly submitted by
the applicant. Following action on the application, any unused amount
of the deposit(s) shall be returned to the applicant with a summary
of the costs incurred.
(2)
The applicant shall pay a permit fee, in the amount as determined
by resolution by the Town Board, to cover the costs incurred by the
Town associated with a residential WECS special use permit and building
permit such as administration, inspections, and enforcement.
(3)
Prior to the issuance of a building permit, the applicant shall
document that all applicable federal, state, county, and local permits
have been obtained.
(4)
Prior to the issuance of a building permit, the applicant shall
provide the Town Clerk with proof of insurance in a sufficient dollar
amount to cover potential personal and property damage associated
with construction and operation thereof.
F.
Findings.
(1)
Findings necessary to grant a residential WECS special use permit.
In order to grant a residential WECS special use permit, the Town
of Hamburg shall review the application, all filings by any other
party, and conduct a public hearing. A residential WECS special use
permit shall not be granted unless the Town of Hamburg Planning Board
makes the following findings based on substantial evidence:
(a)
The proposed residential WECS project is consistent with the
Town of Hamburg Comprehensive Plan and Local Waterfront Revitalization
Plan (LWRP), where applicable.
(b)
The proposed residential WECS project will not unreasonably
interfere with the orderly land use and development plans of the Town
of Hamburg.
(c)
That the benefits to the applicant and the public of the proposed
residential WECS project will exceed any burdens.
(d)
The proposed residential WECS project will not be detrimental
to the public health, safety, or general welfare of the community.
(e)
The proposed residential WECS project shall comply with all
required provisions of the Zoning Code, unless allowed variances (see
setback process) have been properly applied for and granted by the
Town of Hamburg Board of Zoning Appeals.
G.
The Planning Board may grant the special use permit, deny the special
use permit, or grant the special use permit with written stated conditions.
Denial of the special use permit shall be by written decision based
upon substantial evidence submitted to the Board. Upon issuance of
the special use permit, the applicant shall obtain a building permit
for each tower.
H.
The Planning Board, on request from the applicant, shall have the authority to waive any of the requirements of this Code, except for zoning districts in which residential WECS are permitted by special use permit, minimum lot size, setbacks, height regulations, and number of residential WECS per lot [Subsection C(1) through (4)], which can only be reduced through a variance obtained from the Town of Hamburg Zoning Board of Appeals. The Planning Board must provide, in writing, its reasoning for issuing waivers.
I.
Any changes or alterations post-construction to the residential WECS
shall be done only by amendment to the special use permit and shall
be subject to all requirements of this Code.
A.
A residential 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. Should a residential WECS become inoperable, or should
any part of the residential WECS be damaged, or should a residential
WECS violate permit conditions, the owner or operator shall remedy
the situation within 90 days after written notice from the Town Board.
The applicant shall have 90 days after written notice from the Town
Board, to cure any deficiency. An extension of the ninety-day period
may be considered by the Town Board, but the total period may not
exceed 180 days.
B.
Notwithstanding any other abatement provision under this Code, if
the residential WECS is not repaired or made operational or brought
into permit compliance after said notice, the Town Board may, after
a public hearing at which the operator or 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 timeframe, or order
revocation of the residential WECS special use permit and require
the removal of the residential WECS within 90 days. If the residential
WECS is not removed, the Town Board shall have the right to use the
security posted as part of the decommission plan to remove the residential
WECS.
A.
All fees shall be approved by the Town Board by resolution. Nothing
in this section 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. The Town shall
require any applicant to enter into an escrow agreement to pay the
engineering and legal costs of any application review.
A.
Any person owning, controlling, or managing any building, structure,
or land who shall undertake the construction or operation of a residential
WECS in violation of this Code or in noncompliance with the terms
and conditions of any permit issued pursuant to this Code, or any
order of the Code Enforcement Officer, and any person who shall assist
in so doing shall be guilty of an offense and subjected to a fine
of not more than $250 or to imprisonment for a period of not more
than six months, or both. 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 $250 for each violation and each week said violation
continues shall be deemed a separate violation.
B.
In case of any violation or threatened violation of any of the provisions
of this Code, including the terms and conditions imposed by any permit
issued pursuant to this Code, 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.
