[HISTORY: Adopted by the Town of Bethel as
indicated in article histories. Amendments noted where applicable.]
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 § 160-16.
[Amended 6-15-2022]
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 Select Board shall be the operational
oversight authority for CWEFs in the Town, responsible for all CWEF-related
operation, complaints and decommissioning.
[Amended 6-15-2022]
D.
Enforcement authority. The Town's Code Enforcement Officer (CEO)
shall be the enforcement authority and shall work with both the Select
Board and Planning Board to assure that the applicant/owner/operator
abides by all Town ordinances and regulations through the life span
of a CWEF.
[Amended 6-15-2022]
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, e-mail, 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.
[Amended 6-15-2022]
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 Select Board 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 Select Board shall conduct a public hearing on any
proposed amendment.
[Amended 6-15-2022]
[Amended 6-15-2022]
A.
Expert consultants and specialists.
(1)
The Planning Board or the Select Board 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 § 160-7C, 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 § 160-14.
C.
Documentation.
(1)
The applicant/owner/operator shall submit the following materials
to the Town Planning Board or Select Board:
(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;
(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 Select Board,
the CEO and other Town officials, and a copy kept in the Town office
for public review.
(4)
The Select Board 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 Select Board 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.
[Amended 6-15-2022]
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.
[Amended 6-15-2022]
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 with limits of at least $2,000,000 per occurrence and $5,000,000 in the aggregate with a deductible of no more than $5,000. The Select Board shall verify whether the coverage amounts are adequate, initially and at each two-year update/revaluation, (see § 160-13). The insurance company must be approved by the Select Board 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 Select Board within 30 days of the establishment, and all renewals,
of the policy.
(3)
The policy must include the requirement that the Town will be provided
at least 10 days' notice by the policy provider in the case of
cancellation or change to the policy. The owner is further responsible
to notify the Select Board of any changes to the policy or cancellation
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 Select Board at each two-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 Select Board 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 Select Board whichever Board
is responsible for that phase, deems necessary. These funds will be
held by a financial institution approved by the Select Board 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 initial escrow amounts required shall be up to a maximum of $20,000
for each phase of the project, and shall be determined by the Town.
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 Select Board 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 Select Board to the applicant, owner or operator
regarding the account deficiency. The Town reserves the right to cease
review if escrow amounts are insufficient. Failure by the applicant/owner/operator
to provide to the Select Board of notice and proof of deposit to the
Town escrow account for such replenishment shall cause the application
or its approval to be deemed withdrawn.
D.
Decommissioning.
(1)
The CWEF shall be decommissioned if it ceases to generate electricity
for a continuous period of 12 months.
(2)
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 Select
Board for each two-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 take such action as necessary (including court action,
with all legal costs to be paid by the owner/operator) to secure the
posted decommissioning funds and to complete the decommissioning work.
In the case of abandonment, the Town may utilize the decommissioning
funds to decommission the CWEF and take such action as necessary,
including court action, to secure funds and to ensure completion of
the decommissioning should the posted decommissioning fund not be
sufficient to complete decommissioning.
(3)
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.
(4)
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 Select Board thereafter. Prior to the issuance of a building permit, the applicant/owner/operator shall post and maintain decommissioning funds in an amount no less than 150% of the cost of decommissioning each tower to be constructed under that building permit, as well as the cost to restore the site area developed under the permit. The financial assurance shall be maintained at 150% for the rest of the life of the CWEF regardless of change of ownership. The Select Board will inform the applicant or owner/operator of the amount of coverage required at each two-year update/revaluation, described in § 160-3 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.
(5)
The Select Board shall review the financial stability of the financial
institution providing the financial assurance initially and coincident
with each two-year update/revaluation. The financial institution shall
have a minimum AM Best rating of A to A- (excellent).
(6)
In the event the applicant or owner/operator is unable to secure an underwritten bond, etc., due to no underwriting entities existing, the Select Board may consider accepting a 100% funded escrow account as provided by § 160-7C(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 Select Board, in the name of the Town, to be managed by the Town Treasurer, in an amount to be established initially and at every two-year update/revaluation as described in Subsection D(4), above.
(7)
Final decommissioning plan. At least six months from the anticipated
start date of decommissioning the owner of the CWEF shall submit to
the Planning Board a final decommissioning plan for review and approval.
The final plan shall include but not be limited to the following:
(a)
Anticipated start date of decommissioning.
(b)
Anticipated completion date of decommissioning.
(c)
Methods to remove all parts of the CWEF including foundations
and how they will be disposed of.
(d)
Areas and methods to restore disturbed land areas.
(e)
Time period (months) to complete decommissioning.
(g)
All CWEF materials shall be disposed of in a licensed facility;
only rock, soil, and vegetation may be buried or disposed of on site.
All foundations shall be removed to a minimum of 12 inches below ground.
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.
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;
(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;
(4)
A copy of the MET study results;
(5)
Copies of all emergency and safety plans;
(6)
Eight paper copies and one electronic copy, 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;
[Amended 6-15-2022]
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 § 160-10, above.
[Amended 6-15-2022]
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.
[Amended 6-15-2022]
A.
Exterior lighting. Exterior lighting is only permitted for public
safety purposes or as required by the Federal Aviation Administration.
B.
Signs. A wind turbine shall not be used to support signs and shall
not display advertising except for reasonable incidental identification
of the turbine manufacturer, facility owner and operator, and for
warnings.
C.
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, or 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.
D.
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.
(1)
Audible sound restrictions in decibels.
(2)
No CWEF shall be allowed to operate if it exceeds 10 dBA (A-Weighted
Sound Level) any time day or night, 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 Select Board 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 Select Board with all technical information required
by the Select Board or a coustical consultant before, during, and/or
after any acoustical studies required by this article.
E.
Infrasound.
(1)
Infrasound level limits. No wind turbine(s) shall produce an infrasound
pressure level, which is 6 dB higher than the background infrasound
pressure level at the primary blade-pass frequency and blade-pass
frequency harmonics. All measurements are taken on any protected adjacent
residentially used property. Measurements inside a building or residence
may be performed assuming the building owner allows access.
(2)
Measurement personal qualifications.
(a)
All persons conducting sound pressure measurements to assess
compliance with this standard shall be trained in the current techniques
and principles of sound measurement equipment and instrumentation,
and shall take such measurements under the supervision of a qualified
acoustical engineer as described herein.
(b)
A qualified acoustical engineer shall be either a degreed engineer
practicing acoustical engineering for 10 years or more as long as
the engineer works for a firm that is a member of the National Council
of Acoustical Consultants (NCAC), a board-certified member of the
Institute of Noise Control Engineering (INCE Bd. Cert.) or a licensed
professional engineer (PE) with an acoustical focus.
(3)
Instrumentation.
(a)
Infrasound pressure level measurements shall be performed with
appropriate equipment that is properly calibrated to industry standards,
as described below. The microphone shall have a frequency response
that is less than or equal to 0.5 hertz (i.e., an infrasonic microphone).
The measurement system shall be able to collect electrical signals
from the microphone and perform a Fast Fourier Transform (FFT) of
the signal with a frequency range of 0 to 20 hertz with a resolution
of 0.1 hertz or less (> 200 lines).
(b)
The instrumentation shall also be compatible to a Type 1 sound
level meter. All test instrumentation shall be field calibrated with
acoustic calibrator or pistonphone in the audible frequency range
(typically 1,000 hertz). All instrumentation and the acoustic calibrator
shall be laboratory calibrated to NIST traceable standards within
the previous 12 months. All such instruments shall conform, as a minimum,
to the specifications of American National Standard ANSI S1.4 —
1983 (R2006 and as revised) for Type 1 precision sound-level meters.
(4)
Measurement procedure.
(a)
The instrument manufacturer's specific instructions for
the configuration and use shall be followed. The microphone or sound-level
meter shall be calibrated before and after each survey period.
(b)
With the wind turbines operating and producing at least 85%
of full power, a series of three sequential measurements shall be
taken at each location. Each measurement shall be for a period no
less than three minutes consisting of no less than 10 "FFT" averages.
If there are multiple locations to survey, each location shall be
measured three times. If there is only one location, it shall be measured
nine times by series of three measurements with ten-minute break between
each series of three measurements for a total of nine measurements.
(c)
Background infrasound pressure levels shall be measured with
the wind turbine shut down at all locations for at least one series
of three measurements.
(d)
The actual measurement location(s), date and time of survey(s)
and specific wind/weather conditions shall be defined by the Town
of Bethel.
F.
Mitigation waivers.
(1)
Owners of any nonparticipating parcel in Bethel may waive any of the setback or noise restrictions in this § 160-12. 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,
noise and/or shadow flicker, 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.
G.
Design requirements.
(1)
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.
(2)
To the extent practical, wind turbines should be positioned to avoid
and mitigate disruption or loss of radio, television, telephone, cell
phone transmitter, and similar signals.
(3)
In addition to requirements of this article and the site plan review
requirements, design drawings shall additionally show:
(a)
Location of all above-ground utility lines within a radius of
equal to two times the height of the proposed CWT.
(b)
Schematic of electrical systems associated with the CWT including
all existing and proposed electrical connections and any upgrades
required.
(c)
A transportation plan showing how vehicles would access the
site and describing impacts of the proposed energy project on the
local and regional road system during construction and operation.
(d)
A revegetation plan for restoring areas temporarily disturbed
during construction.
(4)
Towers and blades shall be painted white or gray or another nonreflective,
unobtrusive color and reflections from the blades shall be minimized
with nonreflective coatings on the blades.
(5)
All CWT designs must include features to deter climbing or be protected
by anticlimbing devices.
(6)
The minimum distance between the ground and any protruding blade(s)
utilized on the CWEF shall be 25 feet, as measured at the lowest point
of the arc of the blades.
(7)
Each wind turbine shall be equipped with an over speed control system
that includes both an aerodynamic control such as a stall regulation,
variable blade pitch, or similar system, and a mechanical brake that
operates in fail-safe mode certified by the manufacturer.
(8)
Shadow flicker and blade reflection shall not result in the following:
(a)
More than 30 hours of flicker per year on any nonparticipating
occupied building regardless in which municipality it may be located;
(b)
More than 10 hours of flicker per year on any public or private
road that interferes with traffic movement safety;
(c)
Flicker at intersections of any public and/or private roads
that interferes with traffic safety.
H.
Effect on scenic resources.
(1)
Except as otherwise provided in this subsection, if a CWEF is proposed for location in or is visible from a scenic resource, the applicant shall provide a visual impact assessment that addresses the evaluation criteria in Subsection H(3) There is a rebuttable presumption that a visual impact assessment is not required for those portions of a CWEF that are located more than three miles, measured horizontally, from a scenic resource. The Planning Board may require a visual impact assessment for portions of the CWEF located more than three miles and up to eight miles from a scenic resource if it finds that a visual impact assessment is needed to determine if there is the potential for significant adverse effects on the scenic resource. Information intended to rebut the presumption must be submitted to the Planning Board by any interested person within 30 days of acceptance of the application as complete. The Planning Board shall determine if the presumption is rebutted based on a preponderance of evidence in the record.
(2)
The Planning Board shall determine, based on consideration of the evaluation criteria in Subsection H(3) whether the CWEF significantly compromises views from a scenic resource such that the proposed facility has an unreasonable adverse effect on the scenic character or existing uses related to scenic character of that scenic resource.
(3)
In making its determination and in determining whether an applicant
for CWEF located more than three miles from a scenic resource must
provide a visual impact assessment, the Planning Board shall consider:
(a)
The significance of the potentially affected scenic resource;
(b)
The existing character of the surrounding area;
(c)
The expectations of the typical viewer;
(d)
The extent, nature and duration of potentially affected public
uses of the scenic resource and the potential effect on the public's
continued use and enjoyment of the scenic resource; and
(e)
The scope and scale of the potential effect of views of the
CWEF on the scenic resource, including but not limited to issues related
to the number and extent of wind turbines visible from the scenic
resource, the distance from the scenic resource and the effect of
prominent features of the commercial wind energy facility on the landscape.
(4)
A finding by the Planning Board that the commercial wind energy facility is a highly visible feature in the landscape is not a solely sufficient basis for determination that it has an unreasonable adverse effect on the scenic character and existing uses related to scenic character of a scenic resource. In making its determination under Subsection H(2), the Planning Board shall consider insignificant the effects of portions of a commercial wind energy facility located more than eight miles, measured horizontally, from a scenic resource.
I.
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.
J.
Design safety certification. Each wind turbine shall be certified
that it conforms to all applicable industry standards including those
of the American National Standards Institute (ANSI) and at least one
of the following: Underwriters Laboratories, Det Norske Veritas, Germanischer
Llloyd Wind Energies, or other similar certifying organization.
K.
Fire safety. All wind turbines shall be equipped with an appropriate
fire suppression system to address fires within the Nacelle portion
of the turbine or shall otherwise address the issue of fire safety
to the satisfaction of the Planning Board.
L.
Use of public roads.
(1)
The applicant shall identify all municipal maintained public roads
to be used, to transport earthen materials, equipment and parts for
construction, operation or maintenance of a CWEF.
(2)
A qualified third-party engineer retained by the Planning Board and
paid for by the applicant shall document road and bridge conditions
prior to construction. The third-party engineer shall document road
and bridge conditions again 30 days after construction is complete
or as weather permits and provide an assessment to the Planning Board
of damage to roads and bridges attributable to the CWEF construction.
(3)
The applicant shall demonstrate, to the satisfaction of the Planning Board, that it has financial resources sufficient to comply with Subsection L(4), below, and the Planning Board shall require the applicant to post a bond or other security in order to ensure such compliance.
(4)
Road and/or bridge damage determined to have been caused by the applicant
or its contractors shall be repaired to the satisfaction of the third-party
engineer at the applicant's expense in the time period specified
by the third-party engineer.
[Amended 6-15-2022]
On every second anniversary of the date of approval, the owner/operator
shall submit to the Select Board 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 Select
Board to cover anticipated CWEF-related inspection/enforcement costs
during the coming two-year period, based on its past experience with
such costs;
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.
[Amended 6-15-2022]
In addition to the requirements of § 140-7, Enforcement; violations and penalties, of the Site Plan Review, the following requirements apply to a CWEF.
A.
CWEF public inquiries and/or complaints shall be made as follows.
(1)
By submitting a signed complaint with complaint details and complainant
contact information by mail or email, or
(2)
By completing a complaint at the town office during normal office
hours.
(3)
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.
B.
Receipt of CWEF public inquiries and/or complaint. Upon a receipt
of a public inquiry and/or complaint the Town shall:
(1)
Notify the inquiry and/or complainant that a public inquiry and/or
complaint have been received.
(2)
Forward within three business days by e-mail and U.S. Mail or other
acceptable means to the CWEF owner/operator's contact person
that is responsible to respond to public inquiries and/or complaints,
the written complaint.
(3)
Place in the appropriate file for public inspection the public inquiry/complaint.
C.
Responsibility of the CWEF owner/operator. Within 72 hours of receipt
of the complaint from the Town, the owner/operator's contact
person, that is responsible to respond to public inquiries and/or
complaints, shall provide a response back to the Town and the person
filing public inquiry and/or complaint in accordance with the approved
public inquiry/complaint response protocol.
D.
Responsibility of the Town.
(1)
The Town shall attach to the appropriate public inquiry/complaint
the response of the owner/operator.
(2)
Within one week of the receipt by the Town of the response from the
owner/operator, the Town shall contact the person that made the inquiry
and/or complaint to assess if he/she is satisfied with the response
based on the approved public inquiry/complaint response protocol,
Town ordinances and conditions of and CWEF approval.
(3)
The Town within one week shall forward to the owner/operator's contact person, that is responsible to respond to public inquiries and/or complaints, the results of the assessment as identified in Subsection D(2) above.
(5)
The Town may convene a meeting with the Town, the owner/operator, and person filing the inquiry and/or complaint to attempt to reach a resolution if such actions as identified in Subsections C and D (1) through (3) above have not resolved the complaint. If such a meeting is convened, it shall be held within 45 days of the receipt of the original public inquiry/complaint by the Town.
E.
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 Select Board 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.
F.
Records of complaints. The Town shall maintain a permanent record
of all complaints, CEO investigations, reports by consultants and
outcomes.
[Added 6-15-2022]
As used in this article, the following terms shall have the
meanings indicated:
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.
The condition of a CWEF that fails to produce electricity
to the grid for a period of 12 months.
This term is interchangeable with the "owner/operator" during
any CWEF application process. See definition of "owner/operator."
The Town of Bethel Code Enforcement Officer.
A wind energy installation that meet any of the following criteria:
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;
Has a nameplate capacity of more than 100 kilowatts per CWT;
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;
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.
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.
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.
Calendar days.
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."
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.
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.
Sound-like waves having a frequency below the audible range,
that is, below 20 hertz.
The date that the site plan application is approved by the
Planning Board.
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).
Legal language that instructs a court to interpret the ordinance
broadly so that the intent and purposes of the ordinance will be achieved.
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.
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.
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) (1,000 watts) or megawatts
(MW) (1,000,000 watts).
A parcel of real estate that is neither a project parcel
nor a participating parcel.
A written communication sent by mail.
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.
A parcel of real estate that is not a project parcel, but
whose owner has signed a mitigation waiver with the applicant/owner/operator.
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 Select Board or
Planning Board may subdivide any of the major phases into specific
shorter phases, or create additional management phases, as either
Board deems necessary.
The Planning Board of the Town of Bethel, Maine.
The boundaries of the CWEF as shown on the construction site
plan.
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.
Refers to a person with qualifications under this article
for conducting baseline and other sound measurements, reviews and
studies.
Refers to industrial control systems (ICS), computer systems
that monitor and control industrial, infrastructure or facility-based
processes.
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.
The Select Board of the Town of Bethel, Maine.
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.
Alternating changes in light intensity caused by the movement
of wind turbine blades casting shadows on the ground or a stationary
object.
The State of Maine is referred to in this article as the
"State."
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
Select Board and the CEO.
