This chapter shall be entitled "Wind Energy Conversion Systems:
(WECS) Local Law of the Town of Dayton."
The Town Board of the Town of Dayton adopts this chapter to
promote the effective and efficient use of the Town's wind energy
resource through wind energy conversion systems ("WECS"), and to regulate
the placement of such systems so that the public health, safety and
welfare will not be jeopardized.
The Town Board of the Town of Dayton adopts this chapter under
the authority granted by:
A. Article IX of the New York State Constitution, § 2(c),
(6) and (10).
B. New York Statute of Local Governments, § 10(1), (6), and
(7).
C. New York Municipal Home Rule Law, § 10(1), (i) and (ii)
and § 10(1)(a), (6), (11), (12), and (14).
D. The supersession authority of New York Municipal Home Rule Law, § 10(2)(d),
(3).
E. New York Town Law, Article 16, Zoning.
F. New York Town Law § 130 Subsections (1), Building code,
(3), Electrical code, (5), Fire prevention, (7), Use of streets and
highways, (7-a), Location of driveways, (11), Peace, good order and
safety, (15), Promotion of public welfare, (15-a), Excavated lands,
(16), Unsafe buildings, (19), Trespass, and (25), Building lines.
G. New York Town Law § 64, Subsection (17-a), Protection of
aesthetic interests, and (23), General powers.
The Town Board of the Town of Dayton finds and declares that:
A. Wind energy is an abundant, renewable and nonpolluting energy resource
of the Town and its conversion to electricity may reduce dependance
on nonrenewable energy sources and decrease the air and water pollution
that results from the use of conventional energy sources.
B. The generation of electricity from properly sited wind turbines,
including small systems, can be cost effective, and in many cases
existing power distribution systems can be used to transmit electricity
from wind-generating stations to utilities or other users, or site
energy consumption can be reduced.
C. Regulation of the siting and installation of wind turbines is necessary
for the purpose of protecting the health, safety, and welfare of the
neighboring property owners and the general public.
D. Wind energy facilities represent significant potential aesthetic
impacts because of their large size, lighting, and shadow flicker
effects.
E. If not properly regulated, installation and improper construction
methods of wind energy facilities can harm farmlands and create drainage
problems through erosion and lack of sediment control for facility
sites and access roads.
F. Wind energy facilities may present a risk to bird and bat population,
if not properly sited.
G. If not properly sited, wind energy facilities may present risks to
the property values of adjoining property owners.
H. If unregulated, wind energy facilities may be significant sources
of noise, and can negatively impact adjoining properties.
I. Without proper planning, construction of wind energy facilities can
create traffic problems and damage local roads.
J. Wind energy facilities can cause electromagnetic interference with
various types of communications, if improperly sited.
As used in this chapter, the following terms and descriptions
shall be as follows:
AGRICULTURAL OR FARM OPERATIONS
The land and on-farm buildings, equipment, manure processing
and handling facilities, and practices which contribute to the preparation,
production and marketing of crops, livestock and livestock products
as a commercial enterprise, including commercial horse breeding operation
as defined in New York Agriculture and Markets Law in § 301,
Subsection (13), and timber processing, in § 301, Subsection
(14). Such farm operations may consist of one or more parcels of owned
or rented land of whose parcels may be contiguous or noncontiguous
to each other's.
EAF
The Environmental Assessment Form used in the implementation
of the SEQRA.
RESIDENCE
Any dwelling suitable for habitation existing in the Town
of Dayton on the date an application for SEQRA is received and completed,
including seasonal homes, hotels, hospitals, motels, dormitories,
sanitariums, nursing homes, senior housing, schools, or other buildings
used for educational purposes. A residence may be part of a multi-dwelling
or multipurpose building, but shall not include correctional institutions
or hunting cabins.
SEQRA
The New York State Environmental Quality Review Act and its
implementing regulations as defined in Title 6 of the New York Codes,
Rules and Regulations, Part 617.
SITE
The parcel(s) of land where the wind energy facility is to
be placed. The site could be publicly or privately owned by an individual
or group of individuals controlling single or adjacent properties.
Where multiple lots are in joint ownership, the combined lots shall
be considered as one for purposes of applying setback requirements.
Any property which has a wind energy facility or has entered into
an agreement for said facility or a setback agreement and received
the required variance shall not be considered off site.
SMALL WIND ENERGY CONVERSION SYSTEM (SMALL WECS)
A wind energy conversion system consisting of a wind turbine,
a tower, and associated control or conversion electronics, which has
a rated capacity of not more than 100 kW and which is intended to
primarily reduce on-site consumption of utility power.
TOTAL HEIGHT
The vertical distance from ground level to the top of a wind
turbine blade when the tip is at its highest point.
WIND ENERGY CONVERSION SYSTEM ("WECS")
A machine or machines that converts the kinetic energy in
the wind into a usable form (commonly known as a "wind turbine" or
"windmill") which has a production capacity of greater than 100 kW.
WIND ENERGY FACILITY
Any wind energy conversion system, small wind energy conversion
system, or wind measurement tower, including all related infrastructure,
electrical lines and substations, access roads and accessory structures.
WIND ENERGY PERMIT
A permit, granted pursuant to this chapter, granting the
holder the right to construct, maintain and operate a wind energy
facility.
WIND MEASUREMENT TOWER
A tower used for the measurement of meteorological data such
as temperature, wind speed, and wind direction.
WIND OVERLAY ZONING DISTRICT
A district which encompasses part or parts of one or more
underlying zones or districts and that establishes requirements for
wind energy facilities.
A joint application for a wind overlay district and special
use permit for individual WECS shall include the following:
A. Name, address, and telephone number of the applicant. If the applicant
is represented by an agent, the application shall include the name,
address, and telephone number of the agent as well as an original
signature of the applicant authorizing the representation.
B. Name and address and telephone number of the property owner. If the
property owner is not the applicant, the application shall include
a letter or other written permission signed by the property owner:
(1) Confirming that the property owner is familiar with the application;
and
(2) Authorizing the submission of the application.
C. Address, or other property identification, of each proposed tower
location, including tax map section, block and lot number.
D. A description of the project, including the number and maximum rated
capacity of each WECS.
E. A plot plan prepared by a licensed surveyor or engineer drawn in
sufficient detail to clearly describe the following:
(1) Property lines and physical dimensions of the site.
(2) Location, approximate dimensions, and types of major existing structures,
including all residences, and uses on site, public roads, and adjoining
properties within 500 feet of the boundaries of the proposed wind
overlay district.
(3) Location and elevation of each proposed WECS.
(4) Location of all aboveground utility lines on the site or within one
radius of the total height of the WECS, transformers, power lines,
interconnection point with transmission lines and other ancillary
facilities or structures.
(5) Location and size of structures above 35 feet within a five-hundred-foot
radius of the proposed WECS. For purposes of this requirement, electrical
transmission and distribution lines, antennas, and slender or open
lattice towers are not considered structures.
(6) The zoning designation of the subject and adjacent properties as
set forth on the official Town Zoning Map.
(7) Proposed boundaries of the wind overlay district.
(8) To demonstrate compliance with the setback requirements of this chapter,
circles drawn around each proposed tower location equal to:
(a)
One and one-half times the tower height radius.
(b)
Five-hundred-foot perimeter.
(c)
One-thousand-foot perimeter.
(9) Location of the nearest residential structure located off the site,
and the distance from the proposed WECS. The distance from the center
of the tower to any off-site residence within 1,000 feet shall be
noted.
(10)
Location of all proposed facilities, including access roads,
electrical lines, substations, storage or maintenance units and fencing.
F. Vertical drawing of the WECS showing total height, turbine dimensions,
tower and turbine colors, ladders, distance between ground and lowest
point of any blade, location of climbing pegs, and access doors. One
drawing may be submitted for each WECS of the same type and total
height.
G. Landscaping plan depicting existing vegetation and describing the
areas to be cleared and additions of proposed specimens identified
by location, species, and size upon installation.
H. Lighting plan showing any FAA required lighting and other proposed
lighting. The application shall include a copy of the Federal Aviation
Administration determination to establish required markings and/or
lights for the structure. If such determination is not available at
the time of application, no building permit for any lighted facility
may be issued until such determination is submitted.
I. List of property owners, with their mailing addresses, within 500
feet of the boundaries of the proposed wind overlay district. The
applicant may delay submitting this list until the Town Board calls
for a public hearing on the application.
J. Decommissioning plan. The applicant shall submit a decommissioning
plan which shall include: 1) the anticipated life of the WECS; 2)
the estimated decommissioning costs in current dollars; 3) how said
estimate was determined; 4) the method of ensuring that funds will
be available for decommissioning and restoration; 5) the method, such
as, by an annual re-estimate by a licensed engineer, that the decommissioning
cost will be kept current; and 6) the manner in which the WECS will
be decommissioned and the site restored, including all the structures
and debris to a depth of three feet, restoration of the soil and vegetation
(consistent and compatible with surrounding vegetation), less any
fencing or residual minor improvements requested by the landowner.
The plan shall include the decommissioning bond required by this section.
K. Complaint resolution. The application shall include a complaint resolution
process to address complaints from nearby residents. The process may
use an independent mediator or arbitrator and include a time limit
for acting on a complaint. The applicant shall make every reasonable
effort to resolve any complaint.
L. An application shall include information relating to the construction/installation
of the wind energy conversion facility as follows:
(1) A construction schedule describing expected commencement and completion
dates; and
(2) A description of the anticipated routes to be used by the construction
and delivery vehicles, the gross loaded weights and heights of those
vehicles.
M. A completed Part 1 of the Full Environmental Assessment Form ("FEAF").
N. Applications for wind energy special use permits for wind measurement
towers subject to this chapter may be jointly submitted with the WECS
application.
O. Each proposed WECS shall include make, model, photo and manufacturer's
specifications, including noise decibels data. Include manufacturers'
material safety data sheet documentation for the type and quantity
of all materials used in the operation of all equipment including,
but not limited to, all lubricants and coolants.
P. If the applicant agrees in writing the application that the proposed
WECS may have a significant impact on the environment, the Town Board
may issue a positive declaration of environmental significance.
Q. If a positive declaration of environmental significance is determined
by the SEQRA lead agency, the following information shall be included
in the draft environmental impact statement ("DEIS") prepared for
the wind energy facility. Otherwise, the following studies shall be
submitted with the application:
(1) Shadow flicker: The applicant shall conduct a study on potential
shadow flicker. The study shall identify locations where shadow flicker
may be caused by the WECS and the expected durations of the flicker
at those locations. The study shall identify areas where shadow flicker
may interfere with residences and describe measures that shall be
taken to eliminate or mitigate the problems.
(2) Visual impact: Applications shall include a visual impact study of
the proposed WECS as installed, which may include a computerized photographic
simulation, demonstrating any visual impacts from strategic vantage
points. Color photographs of the proposed site from at least two locations
accurately depicting the existing conditions shall be included. The
visual analysis shall also indicate the color treatment of the system's
components and any visual screening incorporated into the project
that is intended to lessen the system's visual prominence.
(3) Fire protection plan: A fire protection and emergency response plan,
created in consultation with the fire department(s) having jurisdiction
over the proposed site.
(4) Noise analysis: A noise analysis by a competent acoustical consultant
documenting the noise levels associated with the proposed WECS. The
study shall document noise levels at property lines and at the nearest
residence not on the site. If access to the nearest residence is not
available, the Town Board may modify this requirement. The noise analysis
shall provide preexisting ambient noise levels and include low frequency
noise.
(5) Property value analysis prepared by a licensed appraiser in accordance
with industry standards, regarding the potential impact on values
of properties adjoining WECS sites and including properties across
public roads from the site.
(6) An assessment of potential electromagnetic interference with microwave,
radio, television, personal communication systems and other wireless
communications.
(7) Tower design information sufficient to demonstrate compliance with
wind-loading requirements.
(8) Analysis of potential ice-throwing and damage from blade impacts.
R. Prior to receipt of a building permit, the applicant shall demonstrate
that the proposed facility meets the system reliability requirements
of the New York Independent System Operator, or provide proof that
it has executed an interconnection agreement with the New York Independent
System Operator and/or the applicable transmission owner.
S. A statement, signed under penalties of perjury, that the information
in the application is true and accurate.
The following standards shall apply to all WECS, unless specifically
waived by the Town Board as part of a wind energy permit.
A. All power transmission lines from the tower to any building or other
structure shall be located underground to the maximum extent practicable.
B. No television, radio, or other communication antennas may be affixed
or otherwise made part of any WECS, except pursuant to the local Town
Zoning Code. Applications may be jointly submitted for WECS and telecommunication
facilities.
C. No advertising signs are allowed on any part of the wind energy facility,
including fencing and support structures.
D. Lighting of tower. No tower shall be lit except to comply with FAA
requirements. Minimum security lighting for ground level facilities
shall be allowed as approved on the wind energy facility development
plan.
E. All applicants shall use measures to reduce the visual impact of
WECS to the extent possible. WECS shall use tubular towers. All structures
in a project shall be finished in a single, nonreflective matte finished
color or a camouflage scheme. WECS within a multiple WECS project
shall be constructed using wind turbines whose appearance, with respect
to one another, is similar within and throughout the project, to insure
reasonable uniformity in overall size, geometry, and rotational speeds.
No lettering, company insignia, advertising, or graphics shall be
on any part of the tower, or hub or blades.
F. Guy wires shall not be used; guyed towers are prohibited.
G. No WECS shall be installed in any location where its proximity with
existing fixed broadcast, retransmission, or reception antenna for
radio, television, wireless phone or other personal communication
systems would produce electromagnetic interference with signal transmission
or reception. No WECS shall be installed in any location along the
major axis of an existing microwave communications link where its
operation is likely to produce electromagnetic interference in the
link's operation. If it is determined that a WECS is causing
electromagnetic interference, the operator shall take the necessary
corrective action to eliminate this interference including relocation
of the facilities, or resolution of the issue with the impacted parties.
Failure to remedy electromagnetic interference is grounds for revocation
of the wind energy permit for the specific WECS or causing the interference.
H. All solid waste and hazardous waste and construction debris shall
be removed from the site and managed in a manner consistent with all
appropriate rules and regulations.
I. WECS shall be designed to minimize the impacts of land clearing and
the loss of open space areas. Land protected by conservation easements
shall be avoided when practicable. The use of previously developed
areas will be given priority whenever possible.
J. WECS shall be located in a manner that minimizes significant negative
impacts on rare animal species in the vicinity, particularly bird
and bat species.
K. WECS and related infrastructure shall be located and stormwater runoff
and erosion control shall be managed in a manner consistent with all
applicable local, county, state and federal laws and regulations.
L. The maximum total height of any WECS shall be 450 feet.
M. Construction of the WECS shall be limited to the hours of 7:00 a.m.
to 8:00 p.m. except for certain activities that require cooler temperatures
than possible during the day, subject to approval from the Town.
N. Substations required to serve WECS are an essential public service
under this Zoning Code. Substations shall be screened from public view to the
extent possible.
O. The Town of Dayton shall be named as an additional insured under
the general liability policy of the applicant, the amount of which
insurance shall be no less than an amount to be determined by the
Town Board given the nature and scope of the project proposed by the
applicant.
P. Construction or ground disturbance, restoration and preservation
involving agricultural land shall be followed according to standards
of the New York State Department of Agriculture and Markets Guidelines
for Agricultural Mitigation for Wind Power Projects.
The Town Board acknowledges that prior to construction of a
WECS, a wind site assessment is conducted to determine the wind speeds
and the feasibility of using particular sites. Installation of wind
measurement towers, also known as anemometer ("Met") towers, shall
be permitted on the issuance of a wind measurement tower permit in
accordance with this chapter.
An application for a wind measurement tower shall include:
A. Name, address and telephone number of the applicant. If the applicant
is represented by an agent, the application shall include the name,
address and telephone number of the agent as well as an original signature
of the applicant authorizing the representation.
B. Name, address and telephone number of the property owner. If the
property owner is not the applicant, the application shall include
a letter or other written permission signed by the property owner:
i) confirming that the property owner is familiar with the proposed
applications; and ii) authorizing the submission of the application.
C. Address of each proposed tower location, including Tax Map section,
block and lot number.
D. Proposed site development plan and map.
E. Decommissioning plan, based on the criteria in this chapter for WECS,
including a security bond for removal.
The purpose of this section is to provide standards for small
wind energy conversion systems designed for on-site home, farm and
small commercial use, and that are primarily used to reduce consumption
of utility power at that site. The intent of this section is to encourage
the development of small wind energy systems and to protect the public
health, safety and community welfare.
Small wind energy systems may be permitted in any zoning district
upon issuance of a special use permit.
Applications for small WECS special use permits shall include:
A. Name, address, and telephone number of the applicant. If the applicant
will be represented by an agent, the name, address, and telephone
number of the agent as well as an original signature of the applicant
authorizing the agent to represent the applicant.
B. Name, address, and telephone number of the property owner. If the
property owner is not the applicant, the application shall include
a letter or other written permission signed by the property owner
confirming that the property owner is familiar with the proposed applications
and authorizing the submission of the application.
C. Address of each proposed tower site, including Tax Map section, block
and lot number. Small WECS wind energy permit: $150 per WECS.
D. Evidence that the proposed tower height does not exceed the height
recommended by the manufacturer or distributor of the system.
E. A line drawing of the electrical components of the system in sufficient
detail to allow for a determination that the manner of installation
conforms to the Electrical Code of the New York State Uniform Fire
Prevention and Building Code.
F. Sufficient information demonstrating that the system will be used
primarily to reduce consumption of electricity at that site.
G. Written evidence that the electric utility service provider serving
the proposed site has been informed of the applicant's intent
to install an interconnected customer-owned electricity generator.
If, however, and unless the applicant does not plan or intend to connect
the system to the electrical grid, a statement must be included in
the application.
H. A visual analysis of the small WECS as installed, which may include
a computerized photographic simulation, demonstrating the visual impacts
from nearby strategic vantage points. The visual analysis shall also
indicate the color treatment of the system's components and any
visual screening incorporated into the project that is intended to
lessen the system's visual prominence.
All small wind energy systems shall comply with the following
standards. Additionally, such systems shall also comply with all the
requirements established by other sections of this chapter that are
not in conflict with the requirements contained in this section.
A. A system shall be located on a lot a minimum of one acre in size,
however, the requirement can be met by multiple owners submitting
a joint application.
B. Only one small wind energy system tower per legal lot shall be allowed,
unless there are multiple applicants, in which their joint lots shall
be treated as one lot for purposes of this section.
C. Small wind energy systems may be used primarily to reduce the on-site
consumption of electricity. The maximum turbine power output is limited
to 100 kW.
D. Tower heights may be allowed as follows:
(1)
Sixty-five feet or less on parcels between one and five acres.
(2)
One hundred twenty feet or less on parcels of five or more acres.
(3)
The allowed height shall be reduced, if necessary, to comply
with all applicable Federal Aviation Requirements, including Subpart
B (commencing with Section 77.11 of Part 77 of Title 14 of the Code
of Federal Regulations regarding installations close to airports).
E. The system's tower and blades shall be painted a nonreflective
unobtrusive color that blends the system and its components into the
surrounding landscape to the greatest extent possible and incorporate
nonreflective surfaces to minimize any visual disruption. The minimum
distance between the ground and any part of the rotor or blade system
shall be 15 feet.
F. The system shall be designed and located in such a manner to minimize
adverse visual impacts from public viewing areas (e.g.; public parks,
roads, trails). To the greatest extent possible a small wind energy
system shall: a) not project above the ridgelines; b) use natural
landforms and existing vegetation for screening, if visible from public
viewing areas; c) be screened to the maximum extent possible by natural
vegetation or other means to minimize potentially significant adverse
visual impacts on neighboring residential areas.
G. Exterior lighting on any structure associated with the system shall
not be allowed except that which is specifically required by the Federal
Aviation Administration.
H. All on-site electrical wires associated with the system shall be
installed underground except for "tie-ins" to a public utility company
and public utility company transmission poles, towers and lines. This
standard may be modified by the decisionmaker if the project terrain
is determined to be unsuitable due to reasons of excessive grading,
biological impacts, or similar factors.
I. The system shall be operated such that no disruptive electromagnetic
interference is caused. If it has been demonstrated that a system
is causing harmful interference, the system operator shall promptly
mitigate the harmful interference or cease operation of the system.
J. At least one sign shall be posted on the tower at a height of five
feet warning of electrical shock or high voltage and harm from revolving
machinery. No brand names, logo, or advertising shall be placed or
painted on the tower, rotor, generator, or tail vane where it would
be visible from the ground, except that a system or tower manufacturer's
logo may be displayed on a system generator housing in an unobtrusive
manner.
K. Towers shall be constructed to provide one of the following means
of access control, or other appropriate method of access:
(1)
Tower-climbing apparatus located no closer than 12 feet from
the ground.
(2)
A locked anticlimb device installed on the tower.
(3)
A locked, protective fence at least six feet high in height
that encloses the tower.
L. Anchor points for the guy wires for a system tower shall be located
within the property that the system is located on and not on or across
any aboveground electric transmission or distribution lines. The point
of attachment for the guy wires shall be enclosed by a fence six feet
in height or sheathed in bright orange or yellow covering from three
feet to eight feet above the ground.
M. Construction of on-site access roadways shall be minimized. Temporary
access roads utilized for initial installation shall be regraded and
revegetated to the preexisting natural condition after completion
of installation.
N. To prevent harmful wind turbulence from existing structures, the
minimum height of the lowest part of any horizontal axis wind turbine
blade shall be at least 30 feet above the highest structure or tree
within a two-hundred-fifty-foot radius. Modification of this standard
may be made when the applicant demonstrates that a lower height will
not jeopardize the safety of the wind turbine structure.
All small wind energy systems shall comply with the following
standards:
A. Setback requirements. A small WECS shall not be located closer to
a property line than 1 1/2 times the total height of the facility.
B. Noise. Except during short-term events including utility outages
and severe wind storms, a small WECS shall be designed, installed
and operated so that noise generated by the system shall not exceed
the 50 decibels (dBA), as measured at the closest neighboring inhabited
dwelling.
C. All small wind energy system tower structures shall be designed and
constructed to be in compliance with pertinent provisions of the New
York State Fire Prevention and Building Code.
D. All small wind energy systems shall be equipped with manual and automatic
overspeed control design, and fabrication with good engineering practices
shall be certified by the manufacturer.
The Town hereby exercises its right to opt out of the tax exemption
provisions of Real Property Tax Law § 487, pursuant to the
authority granted by Paragraph 8 of that law.
Should any provision of this chapter be decided by the courts
to be unconstitutional or invalid, such decision shall not affect
the validity of this chapter as a whole or any part thereof other
than the part so decided to be unconstitutional or invalid.
This chapter shall be effective upon the filing with the Secretary
of State in accordance with the Municipal Home Rule Law.