Town of Bethel, ME
Oxford County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town of Bethel as indicated in article histories. Amendments noted where applicable.]
GENERAL REFERENCES
Site plan review — See Ch. 140.
This article shall be known as "the Town of Bethel Commercial Wind Energy Facility Ordinance."
A. 
The purpose of this article is to protect the health, safety, and general welfare of the citizens and taxpayers of Bethel, by establishing reasonable and uniform regulations for the permitting, construction, operation and decommissioning of commercial wind energy facilities (CWEFs). This article is to be liberally construed so as to effect its purpose and goals. As there are many technical and nontechnical terms used with specific meaning in this article, special attention should be paid to the definitions in § 160-7.
B. 
This article is a supplement to the Town's Site Plan Review Ordinance.[1] All aspects of the development, operation and decommissioning of a CWEF in the Town of Bethel are governed by the Site Plan Review Ordinance and by this Commercial Wind Energy Facility Ordinance.
[1]
Editor's Note: See Ch. 140, Site Plan Review.
A. 
Legislative authority. This article is adopted pursuant to the enabling provisions of Article VIII, Part 2, Section 1 of the Maine Constitution (Municipal Home Rule), the provisions of Title 30-A M.R.S.A. § 3001 (Home Rule), and the provisions of the Planning and Land Use Regulation Act, Title 30-A M.R.S.A. § 4312, et seq. (Comprehensive Planning and Land Use Regulation, or Growth Management Act), as these laws may be amended from time to time, and is consistent with the Town of Bethel's Comprehensive Plan.
B. 
Permitting authority. The Planning Board shall be the permitting authority for CWEFs in the Town of Bethel, responsible for all CWEF-related approvals.
C. 
Operational oversight authority. The Board of Selectmen shall be the operational oversight authority for CWEFs in the Town, responsible for all CWEF-related operation, complaints and decommissioning.
D. 
Enforcement authority. The Town's Code Enforcement Officer (CEO) shall be the enforcement authority and shall work with both the Selectmen and Planning Board to assure that the applicant/owner/operator abides by all Town ordinances and regulations through the life span of a CWEF.
E. 
Inspection. Throughout the life of the CWEF, the Planning Board, CEO or other authorized representative of the Town shall be allowed access to the site during reasonable hours, after informing the applicant/owner/operator by phone or mail, for the purpose of evaluating the CWEF proposal, to review the progress of work, or to determine compliance with the conditions of any approvals or other requirement of the site plan review or this article.
A. 
Validity and severability. Should any section or provision of this article be declared by any court to be invalid, such decision shall not invalidate any other section or provision of the Ordinance.
B. 
Conflict with other ordinances. Whenever a provision of this article conflicts with, or is inconsistent with, another provision of this article or any other Town of Bethel ordinance, State of Maine or federal statute or regulation, the provision more restrictive to the CWEF applicant/owner/operator shall control, except when a provision of state or federal law expressly preempts local authority on the subject.
C. 
Amendments. This article may be amended by a majority vote of the Annual Town Meeting. Amendments may be initiated by a majority vote of the Planning Board or by request of the Board of Selectmen to the Planning Board or on written petition of a number of voters equal to at least 10% of the number of votes cast in the last gubernatorial election in the Town. The Selectmen shall conduct a public hearing on any proposed amendment.
A. 
Expert consultants and specialists.
(1) 
The Planning Board or the Board of Selectmen may, with notice to the applicant, hire independent expert consultants or specialists as they may deem necessary to advise them in carrying out the provisions of this article, including, but not limited to, legal counsel, qualified independent acoustical consultants, Maine professional land surveyors, licensed Maine engineers, insurance underwriters, videographers to record meetings/hearings. All regulatory fees, costs, and expenses incurred by any such experts or specialists shall be paid by the applicant through an escrow account, described in § 160-8C, below, established in the name of the Town.
(2) 
The qualifications of an independent acoustical consultant include, at a minimum, demonstration of competence in the specialty of community sound testing and full and current Board Certified Membership in the Institute of Noise Control Engineers (INCE). [Certifications such as Professional Engineer (P.E.) do not test for competence in acoustical principles and measurement and are thus not, without further qualification, appropriate for work under this article regarding sound issues.]
B. 
Extension of time limits. The Town Planning Board in permitting matters, or the Board of Selectmen in operational and enforcement matters, may, for good cause shown, and proof of no harm to the Town, grant up to a twelve-month extension to time limits in this article upon request by the applicant and a showing that the time limits cannot be complied with due to circumstances beyond the control of the applicant, provided such a written request is submitted prior to the lapse or expiration of the site plan approval. (NOTE: There is a limitation to such an extension in § 160-15.
C. 
Documentation.
(1) 
The applicant/owner/operator shall submit the following materials to the Town Planning Board or Board of Selectmen:
(a) 
Copies of the application, land use permit, and all other application materials the applicant submits to the Maine Department of Environmental Protection or other governing state agency;
(b) 
All application materials required by the Town's Site Plan Review Ordinance[1] and by this article.
[1]
Editor's Note: See Ch. 140, Site Plan Review.
(2) 
Through the life of the CWEF, the owner/operator shall provide the Town with copies of all periodic reports and updated documents required by the state, the Town's Site Plan Ordinance and by this article;
(3) 
In any phase of the CWEF project where such materials are required, the applicant shall provide the Town at least eight bound copies of all written and other application, permitting and report materials required for submission by the state or the Town, including any maps, photographs or drawings, with one electronic copy of all such materials in a digital format acceptable to the responsible Board. These will provide access to the material by the Planning Board, the Board of Selectmen, the CEO and other Town officials, and a copy kept in the Town office for public review.
(4) 
The Board of Selectmen must be notified of any change in ownership of an existing CWEF by the new owner/operator within 14 days of assuming ownership.
A. 
An applicant for a CWEF in Bethel must meet all procedures and requirements of the Town's Site Plan Review Ordinance,[1] as determined by the Planning Board during application phases and by the Board of Selectmen during operational and decommissioning phases, and all requirements of this article. The site plan review and this article will be applied simultaneously in a process determined by the responsible Board. This article applies to all CWEFs proposed to be constructed and operated in Bethel on or after the effective date of this article and any proposed expansions or major changes to preexisting CWEFs, including, but not limited to, constructing additional towers or turbines, upgrading the megawatt capacity, and thus the noise, of any turbine, or increasing the height of any towers and blades.
[1]
Editor's Note: See Ch. 140, Site Plan Review.
B. 
This article includes §§ 160-1 through 160-16 together with the Appendix.[2]
[2]
Editor's Note: Said appendix is included as an attachment to this chapter.
C. 
It shall be unlawful and a violation of this article to begin construction, modification and/or operation of a CWEF in Bethel without appropriate permits and licenses required under local, state and federal law and regulations.
D. 
The burden of proof of compliance with all aspects of this article is on the applicant and/or the owner/operator of a CWEF.
A-WEIGHTED SOUND LEVEL (dBA)
One measure of the overall sound level. This measure is designed to reflect the response of the human ear, which does not respond equally to all frequencies. Lower frequency sounds are given less weight than those in the mid-range of human perception. The resulting measure is said to be A-weighted and the units are dBA.
ABANDONED
The condition of a CWEF that fails to produce electricity to the grid for a period of 12 months.
APPLICANT
This term is interchangeable with the "owner/operator" during any CWEF application process. See definition of "owner/operator."
BOARD OF SELECTMEN
The Board of Selectmen of the Town of Bethel, Maine.
CEO
The Town of Bethel Code Enforcement Officer.
A. 
A wind energy installation that meets all of the following criteria:
(1) 
Consists of one or more commercial wind turbines (CWTs) with a combined tower and blade height of more than 150 feet from the grade to blade tip at its highest point;
(2) 
Has a nameplate capacity of more than 100 kilowatts per CWT;
(3) 
Requires a site location of development permit from the Maine Department of Environmental Protection pursuant to Title 35-A M.R.S.A § 3456, as may be amended from time to time;
(4) 
The purpose of which facility is to generate electricity using ambient wind as a source of motive power in order to primarily supply electricity to off-site customers.
B. 
CWEFs include, without limitation, associated installations, structures and facilities such as meteorological towers, substations and any other accessory structures, cables/wires, generator leads lines, fences, lighting systems, access roads, parking lots, turnout locations, temporary staging areas, together with maintenance and all power collection and transmission systems, and any areas in which the soil is in any way disturbed.
COMMERCIAL WIND TURBINE (CWT)
An energy system that converts wind energy into electricity and which meets the height, nameplate capacity and other criteria cited in the definition of a "CWEF," above.
DAYS
Calendar days.
DECIBEL (dB)
The practical unit of measurement for sound pressure level; the number of decibels of a measured sound is equal to 20 times the logarithm to the base 10 of the ratio of the sound pressure of the measured sound to the sound pressure of a standard sound (20 micro pascals); abbreviated "dB."
DECOMMISSIONING
The process of removing the CWEF and restoring the site to the standards described in the applicant's original Maine DEP application and land use permit or to the state's standards in effect at the time of decommissioning, whichever are more restrictive to the owner/operator.
HEIGHT
The total distance measured from the grade of the property at its base to the highest point of a CWEF, tower, turbine, or related facility. In the case of a CWT, this includes the length of the blade at its highest possible point.
INFRASOUND
Sound-like waves having a frequency below the audible range, that is, below 20 hertz.
ISSUANCE OF NOTICE DATE
The date that the site plan application is approved by the Planning Board.
LAND SURVEY
The practice of determining the boundaries, area, location and elevation of land, features and structures on the earth's surface by means of measuring angles and distances, using the techniques of geometry and trigonometry, by a Maine Professional Land Surveyor (MPLS).
LIBERALLY CONSTRUED
Legal language that instructs a court to interpret the Ordinance broadly so that the intent and purposes of the Ordinance will be achieved.
METEOROLOGICAL TOWER (MET TOWER)
A structure used for the measurement of wind force, direction, speed, and any other meteorological data, constructed as a tower to mount instruments at one or more heights above grade for the purpose of collecting such data.
MITIGATION WAIVER
A legally enforceable, written agreement between the applicant and a nonparticipating landowner in the Town of Bethel for which the landowner waives certain protections afforded in this article. Such a waiver cannot infringe on the protections afforded by this article to other neighboring nonparticipating properties.
NAMEPLATE CAPACITY
The electrical power rating of an individual CWT as certified by the manufacturer and the National Renewable Energy Laboratory and normally expressed in watts, kilowatts (kW) (one-thousand watts) or megawatts (MW) (one million watts).
NONPARTICIPATING PARCEL
A parcel of real estate that is neither a project parcel nor a participating parcel.
NOTICE or NOTIFICATION
A written communication sent by mail.
OWNER/OPERATOR
The person(s) or entity(ies) with legal ownership or control of the property on which the CWEF is located or proposed to be located, including successors and assigns, that either had, has or is attempting to obtain, permission from the Town of Bethel to build, operate on a daily basis, expand, decrease, change the use of, or decommission a CWEF. An owner/operator is the entity which has full legal authority to represent and bind itself to fulfill all of the provisions of this article.
PARTICIPATING PARCEL
A parcel of real estate that is not a project parcel, but whose owner has signed a mitigation waiver with the applicant/owner/operator.
PHASED PROJECT PLAN
Dividing the entire CWEF project into phases for purposes of management and oversight by the Town, including establishing escrow accounts. The plan shall include the following phases at a minimum: MET tower application; MET tower reclamation; construction application; construction; operation; and decommissioning. The Selectmen or Planning Board may subdivide any of the major phases into specific shorter phases, or create additional management phases, as either Board deems necessary.
PLANNING BOARD
The Planning Board of the Town of Bethel, Maine.
PROJECT BOUNDARY
The boundaries of the CWEF as shown on the construction site plan.
PROJECT PARCEL
Any CWEF property covered in the current application process in which the developer has an ownership interest either in whole or in part, including leases, easements or rights-of-way.
QUALIFIED INDEPENDENT ACOUSTICAL CONSULTANT
Refers to a person with qualifications under this article for conducting baseline and other sound measurements, reviews and studies.
SCADA (SUPERVISORY CONTROL AND DATA ACQUISITION)
Refers to industrial control systems (ICS), computer systems that monitor and control industrial, infrastructure or facility-based processes.
SCENIC OR SPECIAL RESOURCE
A scenic resource of state or national significance, as defined in Title 35-A M.R.S.A. § 3451(9), as may be amended from time to time; any site registered in the National Registry of Historic Places; or a scenic or special resource of local significance identified as such in the Bethel Comprehensive Plan of 2003, amended in 2007.
SETBACK
The minimal distance required from the outer edge of each CWT tower where it is attached to its concrete foundation to the closest point on any property line of any nonparticipating parcel, as measured on a horizontal basis.
STATE
The State of Maine is referred to in this article as the "State."
TOWN OF BETHEL
For the purpose of this document, the Town of Bethel shall hereinafter be referred to as the "Town." In the permitting sections of this article, the Town is represented by the Planning Board. In oversight and enforcement sections, the Town is represented by the Board of Selectmen and the CEO.
A. 
Liability insurance.
(1) 
Starting with the initial application and lasting throughout the life of the facility, the applicant/owner/operator will maintain a current general liability (GL) policy for the CWEF in an amount commensurate to the potential liability of the CWEF. It will cover, but not be limited to, bodily injury and property damage or loss. The Board of Selectmen shall verify whether the coverage amounts are adequate, initially and at each five-year update/revaluation, (see § 160-14. The insurance company must be approved by the Board of Selectmen and must have an A.M. Best Insurance Rating of at least A to A- (excellent).
(2) 
The costs of said policy shall be borne entirely by the applicant or owner/operator who shall provide a certificate of insurance to the Board of Selectmen within 30 days of the establishment, and all renewals, of the policy.
(3) 
If there is a change made to the policy, notice shall be given to the Board of Selectmen by the applicant/owner/operator within 14 days of receiving such notice from the insurer. If the policy is canceled, the applicant/owner/operator shall notify the Board of Selectmen immediately.
B. 
Fees. The applicant/owner/operator shall pay specific amounts to the Town when submitting its MET tower application and CWEF construction application, and as required by the Board of Selectmen at each five-year update/revaluation. These fees are to be used by the Town for CWEF-related administrative costs, such as, but not limited to, mailings, public hearings and meetings, staff time for such activities, or staff time for the CEO or others designated by the Board of Selectmen to inspect the progress and compliance of the CWEF, to investigate any complaints about the CWEF received from Town residents or landowners and to enforce compliance.
C. 
Escrows.
(1) 
Funds will be prepaid by the applicant/owner/operator for each phase of the project that the Planning Board or Board of Selectmen, whichever Board is responsible for that phase, deems necessary. These funds will be held by a financial institution approved by the Board of Selectmen in the name of the Town. These funds are to be managed and disbursed by the Town Treasurer to pay the cost of the Town hiring its own independent experts for each phase of the project. The CEO will serve as the Town's contact person with such experts. When the responsible Board certifies that a particular phase is complete, the funds will be returned to the applicant/owner/operator. When the responsible Board determines that a new phase begins, a new escrow account will be established for that phase by that Board. By mutual agreement between the applicant/owner/operator and the responsible Board, escrow funds remaining from a completed phase of the project may be rolled over into the next phase.
(2) 
The escrow amounts required shall be a maximum of $20,000 for each phase of the project. Failure to provide notice and proof of deposit to the Town escrow account by the applicant/owner/operator within 30 days of notice by the Board of Selectmen shall cause the application or its approval to be deemed withdrawn. If the escrow account falls below 50% of the original required deposit amount, full replenishment is required within 30 days of notice by the Board of Selectmen to the applicant, owner or operator regarding the account deficiency. Failure by the applicant/owner/operator to provide to the Board of Selectmen notice and proof of deposit to the Town escrow account for such replenishment shall cause the application or its approval to be deemed withdrawn.
(3) 
All interest accruing to the escrow accounts shall be paid to the applicant/owner/operator on a yearly basis.
D. 
Decommissioning Funds.
(1) 
As part of its permitting, the applicant shall submit the complete and detailed decommissioning plan described in its Maine DEP application and land use permit. It shall include financial assurance, naming the Town as beneficiary, to cover the costs associated with decommissioning the abandoned CWEF through the life span of the facility. An independent and certified licensed Professional Engineer, selected by the Planning Board during the CWEF application phase, and selected by the Board of Selectmen for each five-year update/revaluation, will be retained to help the respective Board establish the cost of decommissioning the CWEF, without regard to salvage value, and itemizing the estimated major expenses to restore the site to the requirements of the applicant/owner/operator's initial Maine DEP application and land use permit, or the requirements of the state in effect at the time of decommissioning, whichever is more restrictive to the owner/operator. If the owner/operator fails to complete the decommissioning of the CWEF within established timelines, the Town may use the decommissioning funds to complete the work. The established timeline for decommissioning is 12 months.
(2) 
The Planning Board shall not approve an application until the applicant has submitted an executed decommissioning access agreement that authorizes the Town, or its agents, to enter onto the CWEF property for the purposes of implementing the decommissioning plan upon the occurrence of a triggering event, as described in the decommissioning plan, that requires the implementation of decommissioning activities and the owner/operator fails or refuses to commence decommissioning activities, such that the Town is authorized to access the bond or other financial guarantee to permit the Town to decommission the facility. The decommissioning access agreement shall run with the land and shall be executed in a form suitable for recording in the County Registry of Deeds. Once a CWEF has been decommissioned, the Town will release the decommissioning access agreement.
(3) 
The financial assurance of decommissioning funds may be in the form of a performance bond, surety bond, or other form of bonded assurance, and shall demonstrate the financial assurance to the satisfaction of the Planning Board during permitting phases, and to the Board of Selectmen thereafter. The applicant/owner/operator shall post and maintain decommissioning funds in an amount no less than 33% of the total decommissioning costs prior to construction, 66% by the fifth anniversary of the issuance of notice date, and 100% by the tenth anniversary of the issuance of notice date. The financial assurance shall be maintained at 100% for the rest of the life of the CWEF. The Board of Selectmen will inform the applicant or owner/operator of the amount of coverage required at each five-year update/revaluation, described in § 160-14, and the applicant/owner/operator will provide proof of required coverage within 30 days of notification. Failure to do so will cause the construction/operating permit to be rescinded.
(4) 
The Board of Selectmen shall review the financial stability of the financial institution providing the financial assurance initially and coincident with each five-year update/revaluation. The financial institution shall have a minimum AM Best rating of A to A- (excellent).
(5) 
In the event the applicant or owner/operator is unable to secure an underwritten bond, etc., due to no underwriting entities existing, the Board of Selectmen may consider accepting a 100% funded escrow account as provided by § 160-8C(1), above, as an alternative. The escrow account would be opened by the applicant/owner/operator prior to construction at a financial institution approved by the Board of Selectmen, in the name of the Town, to be managed by the Town Treasurer, in an amount to be established initially and at every five-year update/revaluation as described in Subsection D(3), above.
A. 
A continuous MET study of no less than one year and no more than two years is required prior to the site plan application. If the applicant has not commenced construction of the MET tower(s) within 18 months of its permit approval by the Planning Board, the applicant must reapply.
B. 
The removal of the MET tower must be completed within 90 days of the test completion and the land restored to the standards described in the applicant's reclamation plan described below.
C. 
Meteorological tower (MET tower) application requirements.
(1) 
A nonrefundable fee of $200 will be assessed to cover all Planning Board and other Town costs associated with evaluation of the MET application.
(2) 
The applicant shall comply with all portions of the Town's Site Plan Review Ordinance[1] and Telecommunications Ordinance, as determined by the Planning Board.
[1]
Editor's Note: See Ch. 140, Site Plan Review.
D. 
Meteorological tower (MET tower) application submission requirements. In addition to requirements of the site plan review, the submission requirements will include:
(1) 
The names and current mailing addresses of all owners of parcel(s) within two miles of all proposed MET tower sites;
(2) 
A reclamation plan that meets the intent to preserve and enhance the landscape as outlined in performance standards of the site plan review,[2] indicating how the site will be restored after MET tower removal and the time frame involved in the reclamation;
[2]
Editor's Note: See Ch. 140, Site Plan Review.
(3) 
A copy of any natural resource protection permit required by the Maine DEP.
In addition to the Town's site plan review, the applicant shall send the Planning Board's announcement of the public hearing about the application to all property owners within two miles of the proposed MET tower site at least 14 days prior to that public hearing.
A. 
Application requirements.
(1) 
A nonrefundable application fee of $1,500 for one to three proposed CWTs; $3,000 for four to 10 CWTs; $4,000 for 11 to 15 CWTs; and $5,000 for 16 or more CWTs will be assessed to cover all Planning Board costs associated with the evaluation of the construction application.
(2) 
Supplement to Site Plan Review. See § 160-5C, Documentation, of this article, above, for details of the application materials to be submitted for a CWEF application.
(3) 
Supplement to Site Plan Review. The applicant shall notify all property owners within two miles of the proposed CWEF footprint at least 14 days prior to the Planning Board's consideration of the application.
B. 
Submission requirements. In addition to requirements of the Site Plan Review, the submission requirements will include an update of the following as part of the site plan for constructing and operating the CWEF:
(1) 
The names and current mailing addresses of all owners of parcel(s) within two miles of all proposed commercial wind turbine (CWT) sites;
(2) 
A copy of any natural resource protection permit required by the Maine DEP;
(3) 
A phased project plan (see § 160-7, Definitions, above);
(4) 
A copy of the MET study results;
(5) 
Copies of all emergency and safety plans;
(6) 
Eight copies, the format of which is to be determined by the Planning Board, of the application and land use permit, and all other application materials that the applicant submits to the state DEP or other governing state agency. These will include, or be supplemented with, a complete construction site plan with the CWEF project boundary, including boundaries of project and participating parcels so indicated, with roads, power lines, commercial wind turbines (CWTs), buildings and all other facility features included, drawn on a topographic map, with a legal description of the property suitable for permanent recording in the Oxford County Registry of Deeds, and a complete and detailed decommissioning plan meeting the state's standards in effect at the time of the applicant's original application and land use permit to the state;
(7) 
A decommissioning access agreement as described in § 160-8D(2), above.
(8) 
Proof that all financial requirements of § 160-8, above, are fulfilled.
The Town's site plan review[1] shall apply, with the following modifications:
A. 
The Planning Board is required to hold a public hearing within 30 days of the determination of a complete application. The Planning Board shall write an announcement describing the public hearing in detail, including its purpose, time, date, and location. At least 14 days prior to the public hearing the applicant shall send the Planning Board's announcement to all property owners within two miles of the proposed CWEF footprint.
B. 
From the date of the announcement of the public hearing described in Subsection A above until at least 45 days following the public hearing, the public shall have access to the site plan application in the Town office during regular office hours. The public will have 45 days from the date of the public hearing to provide written comments to the Planning Board concerning the proposed CWEF. The owner/operator will have an additional 15 days to provide the Planning Board with its responses to the public comments.
C. 
In § 140-6C of the site plan review, the time frames for a CWEF are lengthened to provide adequate opportunity for public input. Within 60 days of the public hearing or 90 days of the determination of a complete application, the Planning Board shall approve the application, approve the application with conditions, or disapprove the application.
D. 
Any significant modification of the approved CWEF, such as, but not limited to, the size of the project's footprint, the number of CWTs, tower height, tower locations, turbine design and specifications, shall require the applicant to obtain an amended site plan pursuant to this article. The application procedures and permit requirements and standards for amending a site plan application are the same as for an initial application, as described in § 160-11, above.
E. 
Approval of a CWEF permit under this article does not exempt an applicant from obtaining other applicable permits from the Town, such as building, electrical, plumbing and shoreland zoning permits, or any applicable state or federal permit.
F. 
The approved CWEF site plan application allows the applicant/owner/operator to construct and operate the CWEF for the complete life span of the project through decommissioning as long as it abides by all provisions of this and other Town ordinances.
[1]
Editor's Note: See Ch. 140, Site Plan Review.
A. 
Exterior lighting. Exterior lighting is only permitted for public safety purposes or as required by the Federal Aviation Administration.
B. 
Setback requirements. All parts of a CWEF shall comply with the following setback requirements.
(1) 
A minimal distance of 2.0 miles (10,560 feet) is required from the outer edge of each CWT tower where it is attached to its concrete foundation to the closest point on any property line of any nonparticipating parcel as measured on a horizontal basis.
(2) 
All CWT towers shall have a minimum setback of 3,000 feet from any scenic or special resource, as indicated in the Town of Bethel's Comprehensive Plan, of from a scenic resource of state or national significance, as defined in Title 35-A M.R.S.A. § 3451(9), as may be amended from time to time; and from any site registered in the National Registry of Historic Places.
(3) 
When all the CWT towers are sited on the construction plan, before construction begins, the Planning Board will hire a Maine professional land surveyor, paid for from the escrow account, to assess the construction plan to assure a reliable measure of proof that the CWTs are in compliance with the setback requirements of this article: A land survey may be conducted by a Maine professional land surveyor at the completion of project construction at the Planning Board's discretion to assure that the towers meet setback requirements.
C. 
Sound restriction requirements. All acoustical instrumentation and sound measurement protocols conducted under the ordinance shall meet all the requirements of the ANSI and IEC Standards cited in the Appendix.[2]
(1) 
Audible sound restrictions in decibels.
(2) 
No CWEF shall be allowed to operate if it exceeds 25 dBA (A-Weighted Sound Level) between 7:00 p.m. and 7:00 a.m., or 35 dBA between 7:00 a.m. and 7:00 p.m., anywhere in the Town beyond the boundaries of the project parcel and the boundaries of all participating parcels whose owners have waived noise restrictions.
(3) 
Postconstruction sound measurements/testing.
(a) 
Attended postconstruction sound measurement studies for audible noise (dBA) shall be conducted by a qualified independent acoustical consultant selected by the Board of Selectmen at as many specific locations along the project boundary, selected by the acoustical consultant and witnessed by the CEO so as to assure a reliable measure of proof that the CWEF's sound levels are in compliance. As new technologies become available, the consultant may use unattended devices that he/she deems most appropriate and reliable.
(b) 
Such studies will be conducted within six months of the CWEF becoming operational, with all CWTs operating. Such tests will be repeated on multiple days and during different weather conditions and wind directions so that the consultant is reasonably satisfied that sufficient and representative data has been obtained.
(c) 
The sound studies may be unannounced to the owner/operator or held during an announced period of, for example, November 1 to January 31, during which time the owner/operator shall archive SCADA stored at rates fast enough to give a clear picture of CWT operations (hub wind speed, blade pitch, power output, and so on) during any period of interest. Within 30 days of notification by the Town, the applicant/owner/operator shall provide the Board of Selectmen with all technical information required by the Board of Selectmen or acoustical consultant before, during, and/or after any acoustical studies required by this article.
[2]
Editor's Note: Said appendix is included as an attachment to this chapter.
D. 
Mitigation waivers.
(1) 
Owners of any nonparticipating parcel in Bethel may waive any of the setback or noise restrictions in this § 160-13. This can only be accomplished with a written mitigation waiver, legally enforceable as a contract between the owner of the nonparticipating parcel and the applicant/owner/operator, and conforming to the requirements of this article. The property subject to the mitigation waiver thereby becomes a participating parcel. No other provisions of this article may be so waived.
(2) 
Such mitigation waivers shall specify which provision(s), setback and/or noise, are waived by the property owner, shall provide a legal description of the property subject to the waiver and shall be recorded by the applicant/owner/operator with the Oxford County Registry of Deeds. Any subsequent deeds shall advise all later owners that the property is so burdened.
(3) 
The applicant shall provide a notarized, complete copy of such filing and recording to the Planning Board within 30 days of having the waiver signed, omitting financial information. Until the Planning Board receives such a copy, the mitigation waiver shall have no legal force under this article. The applicant shall include, as part of the CWEF construction application, a complete list of all parcels subject to mitigation waivers, including the names and mailing addresses of the landowners.
E. 
Design requirements. The total height of any CWT shall not exceed 250 feet above grade at its base, as measured to the blade tips at their maximum distance above grade.
F. 
Blasting plan requirements.
(1) 
Blasting must comply with the provisions set forth by Title 38 M.R.S.A. § 490-Z (14), as may be amended.
(2) 
At least 10, but not more than 30, days prior to commencement of blasting, the applicant shall give notice of the planned blasting schedule to all property owners within one mile of the blast site and shall notify the CEO before blasting can begin.
(3) 
The applicant shall publish, at least one time, in a newspaper having general circulation, a notice of the blasting schedule. The date of the publication must be at least seven days prior to blasting.
[1]
Editor's Note: See Ch. 140, Site Plan Review.
On every fifth anniversary of the date of approval, the owner/operator shall submit to the Board of Selectmen the following updated materials:
A. 
Evidence of the current owner/operator's financial ability, or evidence of a new owner/operator's technical and financial ability, to operate the CWEF in accordance with the requirements of this article;
B. 
Copies of any new agreements of the current owner/operator, or any agreements that a new owner/operator has entered into, involving any project parcel not owned by the owner/operator, or any participating parcel;
C. 
Updates of all emergency or safety plans;
D. 
An inspection/enforcement fee in an amount established by the Board of Selectmen to cover anticipated CWEF-related inspection/enforcement costs during the coming five-year period, based on its past experience with such costs;
E. 
Proof that all financial responsibilities described in § 160-8, above, are fulfilled.
Site plan approvals shall expire two years after the date of approval unless substantial construction of permanent structures thereunder has commenced, as determined by the Planning Board. Permanent structures may include, but not be limited to, CWT tower pads and maintenance buildings. If the entire CWEF project is not completed within three years from the date of approval, the approval lapses and a new application must be made and approved. There will be no additional fee for application review provided the application is unchanged. The Board may grant more than one extension only if there is pending litigation challenging the approval of the CWEF.
In addition to the requirements of § 140-8, Enforcement; violations and penalties, of the Site Plan Review, the following requirements apply to a CWEF.
A. 
Complaint Process. All CWEF complaints shall be made, in writing, to the CEO, who shall provide copies to the owner/operator and keep a record for the Town of the complaint. Complaints involving CWEF sound, vibrations or other possible disturbances related to sound pressure require a written description of the event(s) to include date, time and subjective/objective intensity. Residents or landowners in Bethel may file such complaints.
(1) 
After receipt of a complaint, the CEO shall, in an expeditious manner, and in the order complaints are received, contact the complainant and the owner/operator, visit the site of the alleged violation, conduct other investigation he/she deems appropriate, and, within 14 days, submit a written report to the Board of Selectmen and the complainant. The CEO shall include his/her findings of fact and reasons for those findings in a report to the Board of Selectmen as to the merits of the complaint, with recommendations of actions to be taken.
(2) 
If, at its next regularly scheduled meeting, the Board of Selectmen and the CEO decide the complaint is without merit, it will be dismissed, and the CEO will inform the complainant and the owner/operator. If the Board of Selectmen and the CEO decide the complaint(s) has merit, the CEO will assist the person in processing the issue with the applicant/owner/operator to a suitable conclusion. If the complaint involves sound, and has not been corrected within 14 days of the Board of Selectmen deciding the complaint has merit and the CEO has informed the owner/operator, the following will ensue:
(a) 
The Board of Selectmen will hire a qualified independent acoustical consultant of its choice who will conduct, as soon as possible, a complete attended study at the site of the complaint and/or at the project boundary nearest the site of the complaint, to determine both the dBA noise levels. As new technologies become available, the consultant may use unattended devices that he/she deems most appropriate and reliable. Such tests will be repeated on multiple days and during different weather conditions and wind directions so that the consultant is reasonably satisfied that sufficient and representative data has been obtained.
(b) 
Appropriate summary reports of all CWEF sound meter/meteorological data collected during the date(s) and time(s) of the complaint and for one month prior and one month subsequent to the complaint, if applicable, will be requested from the CWEF. The owner/operator must provide this information to the Board of Selectmen within 14 days of notification.
(c) 
Relevant monthly sound level reports from the owner/operator involving the CWEF will be reviewed by the CEO/Board of Selectmen, with the assistance of such expert consultants or specialists as they deem necessary.
(3) 
Findings of the acoustical consultant and summary reports and other data revealing evidence of higher sound pressure levels than are allowed by this article, as determined by the acoustical consultant and reviewed by the CEO, will be sent by the CEO to the owner/operator and the complainant by certified mail, with evidence of receipt given to the Board of Selectmen.
(4) 
Higher than allowed sound pressure levels constitute a violation of this article. The owner/operator shall submit a response to the CEO with an explanation and a mitigation plan within 14 days of receipt of the acoustical consultant's findings.
(5) 
If the owner/operator fails to respond to the CEO within 14 days, and to delineate and implement a correction acceptable to the CEO and the Board of Selectmen within 30 days, the Selectmen may file an enforcement proceeding and ask the court to order limited operation, shutdown of one or more CWTs, or other appropriate remedies.
(6) 
If a complaint related to sound pressure should continue after appropriate corrections have been made by the owner/operator, and which have been agreed upon by the Board of Selectmen with expert advice, the CEO shall visit the site for further information. If the continuing complaint is found to have merit, the CEO will continue the investigation and a qualified independent acoustical consultant will be hired by the Board of Selectmen to take appropriate attended sound level measurements as deemed reasonable and in accordance with the requirements of this article.
(7) 
If the complaint is deemed to have merit, but concerns issues other than sound, the Board of Selectmen shall hire appropriate, independent, qualified experts to address the matter and conduct any needed tests or investigations. The general procedure for resolving sound issues will likewise apply.
B. 
Enforcement. In addition to the provisions set forth above, when the CEO finds that provisions of this article are being violated, he/she shall notify, in writing, by certified mail, return receipt requested, the person responsible for such violation indicating the nature of the violation and ordering the action necessary to correct it. The Board of Selectmen may bring an action in the Superior Court or District Court to enjoin violators of this article, for collection of penalties, for injunctive relief, and for such other relief as may be provided in accordance with 30-A M.R.S.A. § 4452. Each day that a violation continues shall be considered a separate violation.
C. 
Records of complaints. The Town shall maintain a permanent record of all complaints, CEO investigations, reports by consultants and outcomes.