A.
Wind Overlay Zones are designated by the Town Board in the most current
Town of Colton Land Use and Development Code to delineate those areas
in the Town of Colton that are appropriate for the development of
wind energy conversion systems (WECS) and related infrastructure,
electrical lines and substations, access roads and accessory structures.
The Town's Wind Overlay Zone is concurrent with the district
boundaries for Residential Town (RT), less 500 feet from the Adirondack
Park boundary. Any revisions to a Wind Overlay Zone may only be approved
through a revision to said Town of Colton Land Use and Development
Code.
B.
The Town Board shall refer any requested revisions or additions of
the Wind Overlay Districts to the Town Planning Board. The Town Planning
Board shall hold at least one public hearing after public notice at
which the Planning Board shall consider the landscape and topography
of the Town, current land uses and future development patterns, natural
resources, unique or sensitive environments, the local existence of
wildlife and plant species, viewsheds, zoning districts, residents'
opinions, and other pertinent information.
C.
After considering these and any other information presented at the
public hearing, the Town Planning Board shall determine those areas
which are or are not appropriate for development of wind energy conversion
systems (WECS) and related infrastructure, electrical lines and substations,
access roads and accessory structures.
D.
The Town Planning Board shall report its findings and make recommendations
to the Town Board.
E.
The Town Board shall hold a public hearing after public notice as
required, and shall consider the recommendations of the Town Planning
Board and all other comments, reviews and statements pertaining thereto.
After considering these and any other information presented at the
public hearing, the Town Board shall determine which areas of the
Town of Colton shall be determined to be Wind Overlay Zones.
F.
If approved, the Town Board will direct the Town Clerk to modify
the Official Map to reflect the creation of the Wind Overlay Zones.
G.
Once a Wind Overlay Zone has been created, a new WECS or its related
infrastructure, accessory structures or facilities may be added in
that zone by grant of a special use permit pursuant to the requirements
of this article.
H.
Construction, reconstruction, modification or operation of small
wind energy conversion systems (small WECS) or wind measurement towers,
as defined in this chapter, shall not be limited to Wind Overlay Zones,
as long as these other projects comply with all other regulations
contained herein.
An application for special use permit for individual WECS shall
comply with all aspects and requirements of Article 10 of the New
York State Laws of 2011 and shall also include the following:
A.
Name, address, and telephone number of the applicant, owner, contractors
and project sponsor. 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 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, or other property identification, of each proposed tower
location, including Tax Map section, block and lot number, and latitude
and longitude coordinates.
D.
A description of the project, including the number and maximum rated
power output capacity of each WECS.
E.
For each WECS proposed, 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 existing structures
and uses on the site, public roads, and adjoining properties within
2,500 feet of the site.
(3)
Location and ground elevation of each proposed WECS.
(4)
Location of all aboveground utility lines on the site, and all related
transformers, power lines, interconnection points with transmission
lines, and other ancillary facilities or structures.
(5)
Location, height and size of all structures within a 500-foot radius
of the proposed WECS.
(6)
The zoning designation of the subject and adjacent properties as
set forth in the Town Land Use and Development Code Local Law.
(7)
Boundaries of the Wind Overlay Zone, to demonstrate that each proposed
WECS is located within said overlay zones.
(8)
To demonstrate compliance with the setback requirements of this article,
circles drawn around each proposed tower location equal to:
(9)
Location of the nearest residential structure on the site and located
off site, and within a distance of 2,500 feet from the proposed WECS.
(10)
All proposed facilities, including access roads, electrical
lines, substations, points of interconnection, storage or maintenance
units, and fencing.
F.
Elevation drawing of the WECS showing total height, turbine dimensions,
tower and turbine 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.
Elevation drawings showing any proposed overhead transmission line
poles, structures and conductor clearance from the ground.
G.
Landscaping plan depicting vegetation describing the area to be cleared
of vegetation and areas where vegetation shall be added, identified
by species and size of specimens at installation, and their locations
including the operations building and all other built structures.
H.
Lighting plan showing any FAA-required lighting and other proposed
lighting for staging areas, parking lots and any structures, such
as the operations building. The lighting plan should demonstrate downcast
and minimum lighting to minimize glare and off-site light pollution.
The application should include a copy of the determination by the
Federal Aviation Administration to establish required markings and/or
lights for the structure, but if such determination is not available
at the time of the application, no building permit for any lighted
facility may be issued until such determination is submitted.
I.
Decommissioning plan. The applicant shall submit a decommissioning plan as specified in Article II, § 160-18, of this chapter which shall include:
(1)
The anticipated life of the WECS;
(2)
The estimated decommissioning cost, in current dollars, and adjusted
to account for inflation at the time of decommissioning;
(3)
How said estimate was determined not including salvage value;
(4)
The method of ensuring that funds will be available for decommissioning
and restoration either by standing letter of credit to the benefit
of the Town or by creation of an escrow account;
(5)
The method, such by biannual reestimates by a licensed engineer,
that the decommissioning cost will be kept current and the timetable
and procedure which will include review of the estimate by consultants
to the Town; and
(6)
The manner in which the WECS will be decommissioned and the site
restored, which shall include removal of all roads, structures and
debris to a depth required by NYSDAM, restoration of the soil, and
restoration of vegetation (consistent and compatible with surrounding
vegetation), less any fencing or residual minor improvements requested
by the landowner.
J.
Complaint resolution. The application will include a complaint resolution
process to address complaints from nearby residents during construction
and operation of the WECS. The process shall 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.
All reasonable costs incurred by the Town for the conduct of an independent
review by consultants to the Town or legal fees incurred by the Town
will be reimbursed by the permittee.
K.
An application shall include information relating to the construction/installation
of the wind energy conversion facility as follows:
(1)
A construction schedule describing commencement and completion dates
and hours of construction;
(2)
A description of the routes to be used by construction and delivery
vehicles, the gross weights and heights of those loaded vehicle trips
per turbine site; and
(3)
A plan for public notice to school district officials, Town officials
and emergency services during periods in which roads may be temporarily
obstructed or closed by the transport of components or construction
equipment.
L.
Completed Part 1 of the full environmental assessment form (EAF).
M.
Applications for wind energy permits for wind measurement towers
subject to this chapter may be jointly submitted with the WECS.
N.
For each proposed WECS, include the make, model, picture, tower and
turbine colors and manufacturer's specifications, including noise
decibels data. Include manufacturer's 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.
O.
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 a
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 WECSs and the expected duration of the flicker
at these 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 to a maximum annual exposure
of 30 hours per year of shadow flicker at any residence.
(2)
Visual impact: Applications shall include a visual impact study of
the proposed WECS as installed, which shall include a computerized
photographic simulation, demonstrating any visual impacts from strategic
vantage points. Color photographs of the proposed site from at least
10 locations accurately depicting the existing conditions shall be
included. The Town shall have input into the locations of the simulations.
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: A fire protection and emergency response plan, which
includes a list of equipment needed to readily respond to an emergency
at a facility, created in consultation with the fire department(s)
having jurisdiction over the proposed zone.
(4)
Noise analysis: A noise analysis by an INCE board certified acoustical
consultant documenting the noise levels associated with the proposed
WECS. The study shall document noise levels at property lines and
at the nearest nonparticipating 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 include low frequency
noise.
(5)
Property value analysis: A property value analysis shall be prepared
by a licensed appraiser in accordance with industry standards, regarding
the potential impact of values of properties neighboring WECS sites.
(6)
Electromagnetic interference: An assessment of potential electromagnetic
interference with microwave, radio, television, personal communication
systems and other wireless communication.
(7)
Transportation impacts: An analysis of impacts on local transportation
shall be prepared regarding impacts anticipated during construction,
reconstruction, decommissioning, modification or operation of WECS.
Transportation impacts to be considered shall include, at a minimum,
potential damage to local road surfaces, roadbeds and associated structures;
potential traffic tie-ups by haulers of WECS materials; impacts on
school bus routes; and impacts of visitors to the WECS facilities.
(8)
Groundwater impacts: An analysis of impacts on local groundwater
resources shall be prepared regarding impacts anticipated during construction,
reconstruction, modification or operation of WECS. Provide a response
plan during construction to replace or supplement any on-site wells
impacted by or during construction activities.
(9)
Cultural resources: An analysis of impacts on cultural resources
shall be prepared regarding impacts anticipated during construction,
reconstruction, modification or operation of WECS.
(10)
Wildlife impacts: An analysis of impacts on local wildlife shall
be prepared regarding impacts anticipated during construction, reconstruction,
modification or operation of WECS. Wildlife impacts to be considered
shall include, at a minimum, anticipated impacts on flying creatures
(birds, bats, insects), as well as wild creatures existing at ground
level.
P.
The applicant shall, prior to the receipt of a building permit, provide
proof that it has executed an interconnection agreement with the New
York Independent System Operator and the applicable transmission owner.
Q.
A statement, signed under penalty of perjury, that the information
contained in the application is true and accurate.
R.
A list of property owners (whether or not within the Town) with their
mailing addresses within 2,500 feet of the project. The applicant
may delay submission of this list until the Town Planning Board and/or
Zoning Board of Appeals calls for a public hearing on the application.
A.
Applicants may request a preapplication meeting with the Town Planning
Board, or with any consultants retained by the Planning Board, for
application review. Meetings with the Planning Board shall be conducted
in accordance with the Open Meetings Law.[1]
[1]
Editor's Note: See Public Officers Law § 100
et seq.
B.
Twelve copies and one digital copy of the application shall be submitted
to the Town Clerk for distribution as follows:
C.
Payment of all application fees shall be made at the time of application
submission. If any variances are requested, variance application fees
shall be paid at the time of receipt of the application.
D.
Town staff or Town-designated consultants shall, within 60 days of
receipt, or such longer time if agreed to by the applicant, determine
if all the information required under this article is included in
the application. Unless the Planning Board waives any application
requirement, no application shall be considered until deemed complete.
E.
If the application is deemed incomplete, the Planning Board or its
designated reviewer shall provide the applicant with a written statement
listing the missing information. No refund of application fees shall
be made, but no additional fees shall be required upon submission
of the additional information unless the number of WECSs proposed
is increased.
F.
Upon submission of a complete application, including the grant of
any application waiver by the Planning Board, the Town Clerk shall
transmit the application to the Planning Board.
G.
The Planning Board shall hold at least one public hearing on the
application. Notice shall be given by first-class mail to property
owners within 2,500 feet of each proposed WECS and published in the
Town's official newspaper no less than 10 nor more than 20 days
before any hearing. The notice shall include a statement that a copy
of the application is available at the Town Hall building for public
review. Where any hearing is adjourned by the Planning Board to hear
additional comments, no further publication or mailing shall be required.
The applicant shall prepare and mail the notice of public hearing
prepared by the Planning Board and shall submit an affidavit of service.
The assessment roll of the Town shall be used to determine mailing
addresses.
H.
The public hearing may be combined with public hearings on any environmental
impact statement or requested variances. Notice for SEQRA public hearings
must meet the requirements of Section 617.12(c) of the SEQRA document.
I.
Notice of the project shall also be given, when applicable, to i)
the St. Lawrence County Planning Board, if required by General Municipal
Law §§ 239-l and 239-m, and ii) adjoining Towns under
Town Law § 264.
J.
SEQRA review. Applications for WECS are deemed Type I projects under
SEQRA. The Planning Board may conduct its SEQRA review in conjunction
with other agencies, in which case the records of review by said communities
shall be part of the record of the Planning Board's proceedings.
The Planning Board may require an escrow agreement for the engineering
and legal review of the applications and any environmental impact
statements before commencing its review.
K.
Upon receipt of the report of the recommendation of the County Planning
Board (where applicable), the holding of the public hearing, and the
completion of the SEQRA process, the Planning Board may approve, approve
with conditions, or deny the application, in accordance with the standards
in this article.
The following standards shall apply to all WECS.
A.
All power collection and transmission lines from the tower to any
substation, point of interconnection, building or other structure
shall be located underground to the extent practicable. The applicant
shall include the basis for any requested variance from this requirement.
In the event a variance is granted, all utility poles shall be tall
enough to provide 18 feet of clearance as measured from the shortest
distance between the transmission lines and finished grade.
B.
No television, radio or other communication antennas may be affixed
or otherwise made part of any WECS, except pursuant to the Town Zoning
Law. Applications may be jointly submitted for WECS and telecommunications
facilities.
C.
No advertising signs are allowed on any part of the wind energy facility,
including fencing and support structures.
D.
Lighting of a tower. No tower shall be lit except to comply with
FAA requirements. Minimum security lighting that is downcast with
recessed bulbs and cutoff shields for ground-level facilities shall
be allowed as approved on the site plan.
E.
All applicants shall use measures to reduce the visual impact of
WECSs to the maximum extent practicable.
F.
All structures in a project shall be finished in a single, nonreflective
matte finished color or a camouflage scheme. Individual WECSs within
a Wind Overlay Zone shall be constructed using wind turbines whose
appearance, with respect to one another, is similar within and throughout
the zone, to provide reasonable uniformity in overall size, geometry,
and rotational speeds. No lettering, company insignia, advertising,
or graphics shall be on any part of the tower, hub, or blades.
G.
The use of guy wires is disfavored. A WECS using guy wires for tower
support shall incorporate appropriate measures to protect the guy
wires from damage which could cause tower failure.
H.
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 or emergency
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
or removal 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 WECSs causing the interference.
I.
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.
J.
WECSs 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 feasible. The use of previously developed areas
will be given priority wherever possible. All topsoil disturbed during
construction, reconstruction or modification of WECS shall be stockpiled
and returned to the site upon completion of the activity which disturbed
the soil, except where the underlying fee owner of the land requests
otherwise.
K.
WECSs shall be located in a manner that minimizes significant negative
impacts on animal species in the vicinity, particularly bird and bat
species, including those that may be listed by the U.S. Fish and Wildlife
Service as threatened or endangered.
L.
Wind energy conversion facilities shall be located in a manner consistent
with all applicable state and federal wetlands laws and regulations.
M.
Stormwater runoff and erosion control shall be managed in a manner
consistent with all applicable state and federal laws and regulations.
N.
The most current version of the New York State Department of Agriculture
and Markets guidelines for agricultural mitigation for wind power
projects (as now existing or hereafter amended) shall be adhered to,
both inside and outside of agricultural districts. The applicant/project
sponsor shall be responsible to provide financial funding to the Town
in order for the Town to retain the services of an Environmental Monitor
to oversee the construction and restoration in agricultural fields
and to ensure that the applicant/project sponsor adheres to these
aforementioned guidelines to the extent reasonably practicable. The
Environmental Monitor will also be responsible for monitoring compliance
with permit conditions in the field, including but not limited to
wetland protection, erosion control, surface water runoff, oil and
hazardous waste controls, and sound construction practices. The Environmental
Monitor will be responsible for ensuring sound environmental practices
by all contractors and subcontractors. The Environmental Monitor shall
have "stop-work authority" where necessary to protect public health
and safety.
O.
Construction of the WECS shall generally be limited to the hours
of 7:00 a.m. to 7:00 p.m., Monday through Saturday, except for certain
activities which may require work outside of that period, but which
shall be limited to work at project component sites and may only occur
with notice to and approval of the Town's Code Enforcement Officer.
P.
If it is determined that a WECS is causing stray voltage issues,
the operator shall take the necessary corrective action to eliminate
these problems, including relocation or removal of the facilities,
or resolution of the issue with the impacted parties. Failure to remedy
stray voltage issues is grounds for revocation of the wind energy
permit for the specific WECS or WECSs causing the problems.
Q.
There shall be, in all respects, compliance with and adherence to
the New York State Historic Preservation Office guidelines for wind
farm development cultural resource survey work, as now existing and
as hereafter amended.
R.
No WECS shall make abnormal noises caused by mechanical malfunction or maintenance deficiencies within the required 1 1/2 times the height of the WECS distance from the residences above the level allowed in § 160-14 of this herein chapter. The WECS must be taken offline within eight hours of notification by the Town Code Enforcement Officer, Town Supervisor, or other person designated by the Town Board. The WECS shall not be reactivated until the problem has been resolved.
S.
Insurance requirement. Prior to commencement of construction and
throughout the operation of the wind energy facility, the applicant
shall have the Town of Colton included as additional insured under
all insurance policies acquired and maintained to fulfill the requirements
of this chapter. The applicant shall maintain in force, at its own
expense, comprehensive general liability insurance with the minimum
of at least $5,000,000 per occurrence with a total policy minimum
of $20,000,000 per year indicating coverage for potential damages
or injury to landowners. The applicant will immediately provide the
Town of Colton, in writing, any notice of cancellation or change to
any of the insurances referred to herein.
A.
Each WECS shall be equipped with both manual and automatic controls
to limit the rotational speed of the rotor blade so it does not exceed
the design limits of the rotor.
B.
Appropriate warning signs shall be posted. At least one sign shall
be posted at the base of the tower warning of electrical shock or
high voltage. A sign shall be posted on the entry area of the fence
around each tower or group of towers and any building (or on the tower
or building if there is no fence) containing emergency contact information,
including a local telephone number with twenty-four-hour, seven-day-a-week
coverage. The Town Planning Board may require additional signs based
on safety needs such as warnings for all-terrain vehicles and snowmobiles.
C.
No climbing pegs or tower ladders shall be located closer than 12
feet to the ground level at the base of the structure for freestanding
single-pole or guyed towers.
D.
The minimum distance between the ground and any part of the rotor
or blade system shall be 35 feet.
E.
WECSs shall be designed to prevent unauthorized external access to
electrical and mechanical components and shall have access doors that
are kept securely locked.
F.
Copies of all reports concerning operating and safety inspections
for each WECS shall be filed with the Town Clerk.
A.
Construction of WECS poses potential risks because of the large size
of construction vehicles and their impact on traffic safety and their
physical impact on local roads. Construction and delivery vehicles
for WECS and/or associated facilities shall use traffic routes established
as part of the application review process. Factors in establishing
such corridors shall include:
(1)
Minimizing traffic impacts from construction and delivery vehicles;
(2)
Minimizing WECS-related traffic during times of school bus activity;
(3)
Minimizing wear and tear on local roads; and
(4)
Minimizing impacts on local business operations.
(5)
Permit conditions may limit WECS-related traffic to specific routes,
and include a plan for disseminating traffic route information to
the public.
B.
The applicant is responsible for remediation of damaged roads upon
completion of the installation or maintenance of a WECS. A public
improvement bond shall be posted prior to the issuance of any building
permit in an amount, determined by the Town Board, sufficient to compensate
the Town for any damage to local roads. The condition of the roads
prior to the onset of construction shall be documented by video documentation
and a site visit with the Town Highway Superintendent or his designee.
C.
If the applicant uses any seasonal use highway in the off-season,
it shall be solely responsible for the maintenance of said highway,
including but not limited to snowplowing. No act of maintenance on
a seasonal use highway by an applicant shall be considered as Town
maintenance of that highway for purposes of determining the seasonal
use status of the highway. No seasonable roads shall be plowed without
consulting the Highway Superintendent and local snowmobile clubs.
A.
The total sound pressure level generated by a WECS and sources unrelated
to the turbines shall not exceed those Leq A-weighted decibels (dbA)
listed below measured at ten-minute intervals at the nearest residence,
school, hospital, place of worship or public buildings existing at
the time of application not on site not to exceed 50 decibels. Independent
certification shall be required before and after construction demonstrating
compliance with this requirement. If the ambient noise level measured
at the nearest such structure is greater than the levels mentioned
above, the standard shall be equal to the ambient noise level.
B.
In the event audible noise due to wind energy facility operations contains a steady pure tone, such as a whine, screech, or hum, the standards for audible noise set forth in Subsection A shall be reduced by five dBA. A pure tone is defined to exist if the 1/3 octave band sound pressure level in the band, including the tone, exceeds the arithmetic average of the sound pressure levels of the two contiguous 1/3 octave bands by five dBA for center frequencies of 500 Hz and above, by eight dBA for center frequencies between 160 Hz and 400 Hz, or by 15 dBA for center frequencies less than or equal to 125 Hz.
C.
The ambient noise level shall be expressed in terms of the minimum
sound pressure level measured in any one hour over a twenty-four-hour
period in L90 A-weighted decibels (dBA). Ambient noise levels shall
be measured at the exterior of potentially affected existing residences,
schools, hospitals, churches and public buildings. Ambient noise level
measurement techniques shall employ all practical means of reducing
the effect of wind-generated noise at the microphone. Ambient noise
level measurements may be performed when wind velocities at the proposed
project site are sufficient to allow wind turbine operation, provided
that the wind velocity does not exceed 15 mph or the limits of a microphone
with windscreen at the ambient noise measurement location. For these
purposes, the term "ambient noise level" is defined as the composite
of sound pressure level from all sources near and far being the normal
or existing level of environmental sound pressure at the given subject
location.
D.
Any noise level falling between two whole decibels shall be the lower
of the two.
E.
For WECS that are accessory to a farm operation in an agricultural
district, the setback from site boundaries shall be 1.1 times the
total height of the proposed WECS. For all other WECS, each WECS shall
be set back from site boundaries, measured from the center of the
WECS a minimum of:
(1)
One and five-tenths times the total height of the proposed WECS from
the nearest nonparticipating property line.
(2)
One and five-tenths times the total height of the proposed WECS from
the nearest public road.
(3)
One and five-tenths times the total height of the proposed WECS from
the nearest edge of the Wind Overlay Zone.
(4)
One and five-tenths times the total height of the proposed WECS from
the nearest participating residence existing at the time of application
(with owner's approval), measured from the exterior of such residence.
(5)
One and five-tenths times the total height of the WECS from any state
or federally identified wetlands or bodies of water. This distance
may be adjusted to be greater at the discretion of the Town Planning
Board, based on topography, land cover, land uses and other factors
that influence the flight patterns of resident birds, bats or other
creatures.
(6)
One and five-tenths times the total height of the proposed WECS from
the Adirondack Park Agency boundary.
A.
Long-term monitoring station. Upon the issuance of a permit for a
wind energy facility, and as a condition thereof, the applicant shall,
within 90 days, submit to the Town a proposal for two remote noise
monitoring stations on site. The long-term noise monitoring stations
would be accessible remotely through a dedicated website, and the
data would clearly demonstrate compliance (or violation) with the
Towns' noise limits by allowing the website visitor to view sound
levels real-time and correlate them with audio records, as well as
to review data and sound records from the previous 12 months.
B.
Proposal. The proposal for long-term monitoring stations shall include
but not be limited to:
(1)
The location of the monitoring stations and the basis for the sites
chosen.
(2)
The name, contact information, and credentials of the consultant
who prepared the proposal for the applicant and the name and contact
information for the applicant's consulting sound professional
once the station is operational, if different.
(3)
A detailed description of the equipment and capabilities of the equipment
proposed for the monitoring station, including power sources.
(4)
A plan for regular and emergency maintenance, replacement or repair
of the equipment comprising the monitoring station.
(5)
A timeline for installation and testing of the capabilities of the
stations, including one or more field visits by professionals acting
on behalf of the Town.
(6)
The establishment of an escrow fund, or identification of any existing
fund, through which the costs of review on behalf of the Town by its
sound consultants, attorneys and any other related costs to the Town
shall be made. Both the costs of the review of the proposal and the
costs of review of the data and sound records of long-term monitoring
once established shall be reimbursed.
(7)
A recommendation ensuring regular communication and periodic review
of the long-term monitoring program and the data and audio records
between the Town, the applicant, and/or their sound consultants.
(8)
Proposed data collection methods, trigger levels for audio records,
retention time for both data and audio records, and provisions for
periodic summary reports to the Town.
(9)
A recommendation for the duration of long-term monitoring once the
wind energy facility is operational.
(10)
Actions that will be taken by the applicant to moderate or cease
operation of any turbine during icing conditions should the long-term
monitoring demonstrate that additional sound mitigation measures are
necessary during icing conditions.
C.
Approval. Final approval of the long-term monitoring proposal and
installation shall rest with the Town Board. The Town Board, after
review by its sound consultant, may require modifications to the proposal
or to the location of the monitoring stations. The Town Board, in
its own discretion, may waive the requirement for a second monitoring
station, and may direct the closure of the monitoring stations if
it deems one or both unnecessary after reviewing the data over multiple
seasons. The Town Board may require a presentation on the long-term
monitoring proposal by the applicant at a regular meeting of the Board
prior to final approval. Final approval of the Town Board will be
made prior to the installation of turbines on site, and shall not
be unreasonably withheld.
A.
Upon completion of the review process, the Town Planning Board shall,
upon consideration of the standards in this chapter, Article 10 and/or
Section 94-C, and SEQRA review, issue a written decision with reasons
for approval, conditions of approval or disapproval fully stated.
B.
If approved, the Town Planning Board will issue a special use permit
for each WECS upon satisfaction of all conditions for said permit
and direct the Building Inspector to issue a building permit, upon
compliance with the Uniform Fire Prevention and Building Code and
the other conditions of this chapter as determined by the Building
Inspector and the Town Engineer.
C.
The decision of the Town Planning Board shall be filed within five
days in the office of the Town Clerk and a copy mailed to the applicant
by first-class mail. Digital copies may also be emailed to the applicant.
D.
If any approved WECS is not substantially commenced within two years
of issuance of the permit, the special use permit shall expire.
The Zoning Board of Appeals is hereby granted the power to vary
or modify the strict application of the requirements contained in
this chapter as they relate to area or dimensions upon the application
of the criteria hereafter listed. In no event shall the Zoning Board
of Appeals issue a use variance to permit the location of WECS in
an area outside of the Wind Overlay District as established under
this chapter that is contrary to the public purpose of the Wind Overlay
District, which is to protect the public health and safety.
A.
Upon specific request from the applicant, the Zoning Board of Appeals
shall have the power to grant an area variance after taking into consideration
the benefit to the applicant if the variance is granted as weighed
against the detriment to the health, safety and welfare of the neighborhood
or community by such grant. In making such determination, the Zoning
Board of Appeals may consider:
(1)
Whether an undesirable change will be produced in the character of
the neighborhood or a detriment to nearby properties would be created
by the granting of the area variance.
(2)
Whether the benefit sought by the applicant can be achieved by some
method feasible for the applicant to pursue other than an area variance.
(3)
Whether the requested area variance is substantial.
(4)
Whether the proposed variance will have an adverse effect or impact
on the physical or environmental conditions in the neighborhood or
district.
(5)
Whether the alleged difficulty was self-created, which consideration
shall be relevant to the decision of the Zoning Board of Appeals,
but shall not necessarily preclude the granting of the area variance.
B.
The Zoning Board of Appeals, in granting an area variance, shall
grant the minimum variance that shall be necessary and adequate and
at the same time preserve and protect the character of the neighborhood
and the health, safety and welfare of the community.
C.
The Zoning Board of Appeals shall, in granting an area variance,
have the authority to impose such reasonable conditions and restrictions
as are directly related to and incidental to the proposed use of the
property, and shall be imposed for the purpose of minimizing any adverse
impact such variance may have on the neighborhood or community.
D.
All variances shall be considered as part of the overall permit review
conducted by the Zoning Board of Appeals in connection with the application.
A.
If any WECS remains nonfunctional or inoperative for a continuous
period of one year, the applicant, and/or its successors or assigns,
are responsible, without any further action by the Town, shall remove
said system and restore the site at its own expense. This provision
shall not apply if the applicant demonstrates to the Town that it
has been making good faith efforts to restore the WECS to an operable
condition, but nothing in this provision shall limit the Town's
ability to order remediation after a public hearing.
B.
Nonfunction or lack of operation may be proven by reports to the
Public Service Commission, NYSERDA, or by lack of income generation.
The applicant shall make available to the Town all reports to and
from the purchaser of energy from individual wind energy conversion
systems, if requested, necessary to prove the WECS is functioning,
which reports may be redacted as necessary to protect proprietary
information.
C.
Removal of the system shall include:
(1)
The New York State Department of Agriculture and Markets guidelines
for agricultural mitigation for wind farm projects shall be adhered
to both inside and outside of agricultural districts.
(2)
All aboveground components, including, but not limited to, substations,
switch gear, turbines, blades, nacelles, towers, transformers, aboveground
collection cables and poles and fencing. Removal of the system may
also include aboveground collection cables and poles.
(3)
Foundations and buried project components, other than buried collection
lines, must be removed to a depth of the NYSDAM regulations.
(4)
Buried collection lines must be removed to a depth of NYSDAM regulations.
Collection lines below the depth of the NYSDAM regulations may remain
in place.
(5)
Removal activities must be completed within one year of decommissioning
initiation unless otherwise approved by the Town.
D.
Restoration of each site shall include:
(1)
Ground disturbance must be minimized to the extent practical and
the site restored to its original ground contours if possible.
(2)
Disturbed on-site soils and vegetation will be reasonably restored
and reestablished using native seed mix or in coordination with the
landowner to allow desired vegetation to be planted.
(3)
Roads must be adequately restored to their original condition following
decommissioning activities.
(4)
Access roads, fencing and residual minor improvements may remain
with written consent from the landowner.
E.
Financial assurance for decommissioning bond or fund. The applicant
and his successors and assigns shall continuously maintain a bond
or fund in the amount of the decommissioning costs according to this
section. It will be payable to the Town for the removal and restoration
of nonfunctional or inoperable WECS. This financial assurance will
be in place before the commencement of construction and will be in
the amount of the decommissioning costs to be determined by a qualified
independent engineer licensed to practice in the State of New York,
at the applicant's expense. This estimate is then reviewed by
engineers hired by the Town, at the applicant's expense. This
estimate will be determined and reviewed every two years. This financial
assurance may be in the form of a letter of credit, a bond, escrow
account, a parent guarantee or other form approved by the Town. The
applicant will make an initial deposit of $150,000 to the fund. A
LWEC permit application will not be processed until proof of deposit
has been provided by the applicant. All costs of this financial assurance
shall be borne by the applicant.
A.
Nothing in this chapter shall be deemed to give any applicant the
right to cut down surrounding trees and vegetation on any property
to reduce turbulence and increase wind flow to the wind energy facility.
Nothing in this chapter shall be deemed a guarantee against any future
construction or Town approvals of future construction that may in
any way impact the wind flow to any wind energy facility. It shall
be the sole responsibility of the facility operator or owner to acquire
any necessary wind flow or turbulence easements, or rights to remove
vegetation. In instances where tress and vegetation are cleared, the
applicant shall submit a landscaping plan to replant and revegetate
a comparable amount of land that is displaced so that there is no
net loss caused by the wind energy facility.
B.
Pursuant to the powers granted to the Town to manage its own property,
the Town may enter into noise, setback, or wind flow easements on
such terms as the Town Planning Board deems appropriate, as long as
said agreements are not otherwise prohibited by state or local law.
A.
Testing fund. A special use permit shall contain a requirement that
the applicant fund periodic noise testing by a certified independent
third-party acoustical measurement consultant, which may be required
as often as every two years, or more frequently upon request of the
Town Board in response to complaints by neighbors. The scope of the
noise testing shall be to demonstrate compliance with the terms and
conditions of the special use permit and this chapter and shall also
include an evaluation of any complaints received by the Town. The
applicant shall have 90 days after written notice from the Town Board
to cure any deficiency. An extension of the ninety-day period may
be considered by the Town Board, but the total period may not exceed
180 days.
B.
Operation. A WECS shall be maintained in operational condition at
all times, subject to reasonable maintenance and repair outages. Operational
condition includes meeting all noise requirements and other permit
conditions. Should a WECS become inoperable, or should any part of
the WECS be damaged, or should a WECS violate a permit condition,
the applicant shall have 90 days after written notice from the Town
Board to cure any deficiency. An extension of the ninety-day period
may be considered by the Town Board, but the total period may not
exceed 180 days. Where a violation of the noise standard by the operation
of a WECS is readily apparent or has been documented by sound testing,
the Town Board upon written notice may require that the WECS be taken
offline within 48 hours, to remain offline until repairs or a remedy
is effected.
C.
Notwithstanding any other abatement provision under this chapter, and consistent with §§ 160-18A and 160-20B, if the WECS is not repaired or made operational or brought into permit compliance after said notice, the Town may, after a public meeting at which the operator or owner shall be given opportunity to be heard and present evidence, including a plan to come into compliance, i) order either remedial action within a particular time frame, or ii) order revocation of the wind energy permit for the WECS and require the removal of the WECS within 180 days, and the restoration of the site. If the WECS is not removed, the Town Board shall have the right to use the security posted as part of the decommission plan to remove the WECS.
