Town of Evans, NY
Erie County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Evans as indicated in article histories. Amendments noted where applicable.]
GENERAL REFERENCES
Environmental quality review — See Ch. 98.
Fees — See Ch. 106.
Noise — See Ch. 137.
Zoning — See Ch. 200.
[Adopted 8-13-2008 by L.L. No. 5-2008]

§ 198-1 Intent.

The Town of Evans recognizes that wind energy is an abundant, renewable and nonpolluting energy resource of the Town and that its conversion to electricity can reduce dependence on nonrenewable energy resources and decrease the air and water pollution that results from the use of conventional energy resources. The intent of this article is to promote the effective and efficient use of wind energy conversion systems (WECS) and to regulate the design, placement, construction, installation and/or modification of WECS for the purpose of protecting the health and safety of neighboring property owners and the general public, as well as the natural resources and aesthetics of the community.

§ 198-2 Definitions.

As used in this article, the following terms shall have the meanings indicated:
COMMERCIAL WIND ENERGY SYSTEM
A wind energy conversion system consisting of one wind turbine, one tower, and associated control or conversion electronics which has a rated capacity greater than 250 kilowatts, and a total height of more than 175 feet, and is intended to solely supply electrical power into a power grid for sale.
NONCOMMERCIAL WIND ENERGY SYSTEM
A wind energy conversion system consisting of one wind turbine, one tower, and associated control or conversion electronics which has a rated capacity of not more than 250 kilowatts and a total height less than 175 feet.
TOWER
The support structure, including guyed, monopole and lattice types, upon which a wind turbine or other mechanical device is mounted.
TOWER HEIGHT
The height above grade of the uppermost fixed portion of the tower, excluding the length of any axial rotating turbine blades.
TOTAL HEIGHT or MAXIMUM OVERALL HEIGHT
The height of the wind energy conversion system measured from the ground elevation to the top of the tip of the blade in the vertical position.
WIND ENERGY CONVERSION SYSTEM
One or more mechanical devices, such as wind chargers, windmills or wind turbines, which are designed and used to convert wind energy into a form of useful energy for sale or redistribution to others.
WIND ENERGY SYSTEM
The equipment that converts and then stores or transfers energy from the wind into usable forms of energy and includes any base, blade, foundation, generator, nacelle, rotor, tower, transformer, turbine, vane, wire, substation, maintenance or control facilities or other component used in the system.

§ 198-3 Special use permit required.

The placement, construction, and/or modification of any commercial wind energy conversion systems within the Town of Evans shall be permitted only by a special use permit issued by the Town Board, upon site plan approval issued by the Planning Board, after SEQR review, with the Evans Town Board designated as lead agent, and upon issuance of a building permit.

§ 198-4 Permit submission requirements.

The review and approval of any commercial wind energy conversion system and issuance of a special use permit is subject to all provisions of this article. Applicants for a special use permit to place, construct or modify wind energy conversion systems within the Town of Evans shall submit the following information to the Planning Board for review and recommendations to the Town Board:
A. 
Name and address of the applicant.
B. 
Evidence that the applicant is the owner of the subject property involved or has the written permission of the owner to make such an application.
C. 
Visual environmental assessment form (SEQR visual EAF), landscaping plan, and visual assessment report, including appropriate models and photography assessing the visibility from key viewpoints identified in the visual EAF (or by the Town of Evans), existing tree lines and proposed elevations. The visual EAF shall include a detailed or photographic simulation showing the site fully developed with all proposed wind turbines and accessory structures.
D. 
Site plans drawn in sufficient detail to show the following:
(1) 
Location and height of the tower(s) on the site and descriptive information, including blades, rotor diameter and ground clearance.
(2) 
Utility lines, both above and below ground, within a radius equal to the proposed tower height, including the blades.
(3) 
Property lot lines and the location and dimensions of all existing structures and uses on site within 750 feet of the WECS.
(4) 
Surrounding land use and all structures within 750 feet of the WECS.
(5) 
Dimensional representation of the various structural components of the tower construction, including the base and footing.
(6) 
Existing topography.
(7) 
Removal of natural vegetation and regrading/land restoration after construction according to NYS Agriculture and Markets and NYS Department of Environmental Conservation guidelines (as applicable).
(8) 
Dominant wind direction from which 50% or more of the energy contained in the wind flows.
(9) 
Ingress and egress to the proposed project site, including:
(a) 
A description of the access route from the nearest state, county, and/or Town-maintained roads, including:
[1] 
The type and amount of road surface material and cover.
[2] 
Width and length of access route.
[3] 
Dust control procedures.
(b) 
A road maintenance schedule or program.
(c) 
Review railroad accessibility for deliveries.
E. 
Detailed construction plan, including but not limited to a construction schedule, hours of operation, designation of heavy haul routes, a list of material equipment and loads to be transported, identification of temporary facilities intended to be constructed and contact representative in the field with name and phone number.
F. 
All groves of trees shall be located on the site plan at time of application. No grove or woodlots of trees shall be removed without approval of the Planning Board.
G. 
Certification by a registered New York State professional engineer that the tower's design is sufficient to withstand wind-loading requirements for structures as established by the New York State Uniform Construction Code, and certification from the turbine manufacturer that the turbine can withstand excessive wind speeds and conditions.
H. 
Turbine information, including the type, size, height, rotor material, rated power output, performance, safety, and noise characteristics of each commercial wind turbine model, tower, and electrical transmission equipment.
I. 
Photographs or detailed drawings of each wind turbine, including the tower and foundation.
J. 
A noise report shall be furnished which shall include the following:
(1) 
A description and map of the project's noise-producing features, including the range of noise levels expected, potential impacts to construction and operations workers and others, and the tonal and frequency characteristics expected. The noise report shall include low frequency, infrasound, pure tone, and repetitive/impulsive sound.
(2) 
A survey map and report, prepared by a qualified engineer, that analyzes the preexisting ambient noise regime (including seasonal variation), including but not limited to separate measurements of low frequency and A-weighted noise levels across a range of wind speeds (including near cut-in), turbulence measurements, distance from the turbines, location of sensitive receptors located within two miles of the proposed facility, i.e., residences, hospitals, libraries, schools, places of worship and other facilities where quiet is important, relative to wind direction; and analyses at affected sensitive receptors, with identification of potential problem areas.
(3) 
A description and map of the potential cumulative noise impacts and identification of potential problem areas.
(4) 
A description of the projects proposed noise-control features, including specific measures proposed to protect workers, and mitigate noise impacts for sensitive receptors, consistent with levels in this article.
(5) 
Manufacturers' noise design and field testing data, both audible [dB(A)], and low frequency (deep bass vibration), for all proposed structures.
(6) 
Issues and considerations for individuals that use hearing aids.
K. 
A geotechnical report shall be furnished that shall, at a minimum, include the following:
(1) 
Soils engineering and engineering geologic characteristics of the site based on on-site sampling and testing.
(2) 
Foundation design criteria for all proposed structures.
(3) 
Slope stability analysis.
(4) 
Grading criteria for ground preparation, cuts and fills, soil compaction.
L. 
An ice throw report from a New York State professional engineer that calculates the maximum distance that ice from the turbine blades could be thrown. (The basis of the calculation and all assumptions must be disclosed.)
M. 
A blade throw report from a New York State Professional Engineer that calculates the maximum distance that pieces of the turbine blades could be thrown. (The basis of the calculation and all assumptions must be disclosed.)
N. 
A copy of written notification to the Federal Aviation Administration.
O. 
Utility interconnection data and a copy of a written notification to the public utility company of the proposed interconnection.
P. 
Notification to microwave communications link operators. An application that includes any wind turbine which is located within two miles of any microwave communications link shall be accompanied by a copy of a written notification to the operator of the link.
Q. 
Where applicable, an application for approval to locate within a one-hundred-year floodplain area, as shown on the floodplain maps.
R. 
A detailed report which shall address the potential for wind erosion, water erosion, sedimentation and flooding, and which shall propose mitigation measures for such impacts.
S. 
A full (long) environmental assessment form (EAF).
T. 
Such additional information as may be reasonably requested by the Town Engineer or Planning Board.

§ 198-5 Permit conditions.

Special use permits issued for wind energy conversion systems shall be subject to the following conditions:
A. 
Commercial wind energy systems shall be allowed in the following zoning districts east of the CSX Railroad tracks only:
(1) 
Agricultural – Open Space (A-OS).
(2) 
Light Industrial (L-I).
(3) 
General Industry (G-I).
B. 
Setbacks:
(1) 
The applicant shall adhere to the following setbacks.
(a) 
From zoning districts:
[1] 
One thousand feet from any residential district boundary line.
[2] 
One thousand feet from any municipal boundary line.
(b) 
From structures:
[1] 
A minimum 1.5 times the total WECS height from any building located outside the applicant's property line.
[2] 
A minimum 1,500 feet from any residential dwelling.
(c) 
From railroads: a minimum 1.5 times the total WECS height from any railroad right-of-way.
(d) 
A minimum 1.5 times the total WECS height from any aboveground transmission line greater than 12 kilovolts, located off the property. If the power line is located on the subject properly, the applicant should obtain permission from the transmission line owner where the tower is located less than the 1.5 times the total WECS height from the transmission line.
(2) 
Notwithstanding the provisions set forth in Subsection B(1), such setbacks from lot lines do not apply if the application is accompanied by a legally enforceable agreement for a period of 25 years or the life of the permit, whichever is longer, that the adjacent landowner agrees to the elimination of the setback.
C. 
The maximum overall height of any WECS shall be 450 feet. The maximum height shall be measured from the ground elevation to the top of the tip of the blade in the vertical position.
D. 
No advertising sign or logo shall be placed or painted on any commercial wind energy conversion system.
E. 
Wind turbines shall be painted a nonobtrusive color that is nonreflective (e.g., light environmental color such as white, gray, or beige). The design of commercial wind energy conversion system buildings and related structures shall, to the extent reasonably possible, use materials, colors, textures, screening and landscaping that will blend the facility to the natural setting and the existing environment.
F. 
The applicant shall submit a commercial wind energy conversion system lighting plan that describes all lighting that will be required, including any lighting that may be required by the FAA. Such plan shall include but is not limited to the planned number and location of lights, light color, whether any such lights will be flashing, and mitigation measures planned to control the light so that it is does not spill over onto neighboring properties.
G. 
The applicant is required to obtain all necessary regulatory approvals and permits from all federal, state, county, and local agencies having jurisdiction and approval related to the completion of the wind energy conversion system.
H. 
The applicant shall adhere to the following safety and security requirements:
(1) 
Each wind turbine shall be equipped with both manual and automatic controls to limit the rotational speed of the blade within the design limits of the rotor. Manual electrical and/or overspeed shutdown disconnect switches shall be provided and clearly labeled on the wind turbine structure. No wind turbine shall be permitted that lacks an automatic braking, governing, or feathering system to prevent uncontrolled rotation, overspeeding and excessive pressure on the tower structure, rotor blades, and turbine components.
(2) 
All structures shall be ground according to applicable electrical codes in the event of a lightning strike.
(3) 
All wiring between the wind turbines and the wind energy facility substation shall be underground. The applicant is required to provide a site plan showing the locations of all overhead and underground electric utility lines, including substations for the project.
(4) 
All transmission lines from wind energy conversion systems to on-site substations shall be installed underground. The Planning Board shall have the authority to waive this requirement if the subject project owner consents to aboveground transmission lines or if the Planning Board has sufficient engineering data submitted by the applicant to demonstrate that underground transmission lines are unfeasible.
(5) 
The blade tip of any wind turbine shall, at its lowest point, have ground clearance of not less than 50 feet.
(6) 
Wind turbine towers shall not be climbable up to 30 feet above ground level.
(7) 
All access doors to wind turbine towers and electrical equipment shall be lockable and shall remain locked at all times when operator personnel are not present.
(8) 
All structures shall be of self-supporting, monopole construction (single pole). No lattice structures or guy-wire-supported structures shall be permitted.
(9) 
Appropriate signage shall be placed on wind turbine towers, electrical equipment, and wind energy facility entrances warning of electrical shock or high voltage and harm from revolving machinery. Signage shall also include two twenty-four-hour emergency contact numbers for the property owner, in accordance with local, state, and federal codes.
I. 
The applicant shall adhere to the following noise requirements:
(1) 
A commercial wind energy conversion system permit shall not be granted unless the applicant demonstrates that the proposed project complies with all noise regulations.
(2) 
The applicant shall submit a noise study based on the requirements set out in § 198-4J of this article. The Planning Board shall determine the adequacy of the noise study and, if necessary, may require further submissions. The noise study shall consider the following:
(a) 
Low frequency noise.
(b) 
Infrasound noise.
(c) 
Pure tone.
(d) 
Repetitive impulsive sound.
(3) 
The Planning Board may impose a noise setback that exceeds the other setbacks set out in this section if it deems that such greater setbacks are necessary to protect the public health, safety and welfare of the community.
(4) 
Wind turbine operations shall not create noise levels, as measured at the subject property boundary, that exceed 45 dB(A) for more than five minutes out of any one-hour time period or that exceed 50 dB(A) during any time period.
(5) 
A commercial wind energy conversion system shall not be operated so that impulsive sound below 20 Hz (low-frequency noise) adversely affects the habitability or use of any dwelling unit, hospital, school, library, nursing home, or other sensitive noise receptor.
(6) 
The applicant shall submit to a noise complaint and investigation process, as deemed necessary and appropriate by the Planning Board.
J. 
The applicant shall submit a fire control and prevention program that is appropriate and adequate for the proposed facility. The proposed program may include, but is not limited to, the following:
(1) 
Fireproof or fire-resistant building materials.
(2) 
Buffers or fire-retardant landscaping.
(3) 
Availability of water.
(4) 
An automatic fire-extinguishing system for all buildings or equipment enclosures of substantial size containing control panels, switching equipment, or transmission equipment, without regular human occupancy.
(5) 
Provision of training and fire-fighting equipment for local fire protection personnel.
K. 
Development and operation of a commercial wind energy conversion system shall not have a significant adverse impact on endangered or threatened fish, wildlife, or plant species or their critical habitats, or other significant habitats or on migratory bird species, as identified in the Town of Evans Comprehensive Plan and/or the studies and plans of the regional planning commissions based on criteria established by the federal or state regulatory agencies.
L. 
The applicant shall adhere to the following for unsafe and inoperable wind energy conversion systems and site reclamation:
(1) 
Unsafe and inoperable commercial wind energy conversion systems, and commercial wind energy facilities for which the permit has expired, shall be removed by the owner. All safety hazards created by the installation and operation of the commercial wind energy conversion system shall be eliminated, and the site shall be restored to its natural condition as per Subsection L(2). A bond or other appropriate form of security shall be required to cover the cost of the removal and site restoration. (A commercial wind energy conversion system shall be deemed inoperable if it has not generated power within the preceding six months).
(2) 
The applicant shall submit a removal and site restoration plan and cost estimate to the Town Planning Board for its review and approval. The restoration plan shall identify the specific properties it applies to and shall indicate removal of all buildings, structures, wind turbines, access roads and/or driveways and foundations to four feet below finish grade; road repair costs, if any; and all regrading and revegetation necessary to return the subject property to the condition existing prior to establishment of the commercial wind energy conversion system. The restoration shall reflect the site-specific character, including topography, vegetation, drainage, and any unique environmental features. The plan shall include a certified estimate of the total cost (by element) of implementing the removal and site restoration plan.
(3) 
Every unsafe and inoperable commercial wind energy conversion system and every wind energy conversion system that is declared a public nuisance shall be subject to abatement by repair, rehabilitation, demolition, or removal. An inoperable commercial wind energy conversion system shall not be considered a public nuisance, provided that the owner can demonstrate that modernization, rebuilding or repairs are in progress or planned and will be completed within no more than six months.
M. 
The applicant must submit information that the proposed construction of the wind energy conversion system will not cause interference with microwave transmissions, cellular transmissions, residential television interference or radio reception of domestic or foreign signals. The applicant shall include specific measures proposed to prevent interference, a complaint procedure, and specific measures proposed to mitigate interference impacts.
N. 
The applicant shall adhere to the following with respect to interference with aviation navigational systems:
(1) 
No commercial wind energy conversion system shall be installed or operated in a manner that causes interference with the operation of any aviation facility.
(2) 
All commercial wind energy siting shall comply with Federal Aviation Administration ("FAA") regulations.
(3) 
All commercial wind energy facilities shall include a locking mechanism which prevents the blades from rotating when not producing power, in order to limit airport radar interference or "clutter." This provision does not apply while the WECS is free-wheeling during startup and shutdown. The Planning Board may modify or eliminate the requirement for a locking mechanism if sufficient evidence is presented that no significant airport radar interference or clutter will be caused by the commercial wind energy conversion system.
O. 
Erosion control. The applicant shall adhere to the following:
(1) 
Before the Town of Evans shall issue a grading or building permit for the commercial wind energy conversion system, the applicant shall submit an erosion control plan to the Planning Board for its review and approval. The Plan shall minimize the potential adverse impacts on wetlands and Class I and II streams and the banks and vegetation along those streams and wetlands and to minimize erosion or sedimentation.
(2) 
If the proposed project disturbs over one acre, the applicant must comply with the New York State Department of Environmental Conversion SPDES General Permit for Stormwater Discharges from Construction Activity (Permit No. GP-02-01). A copy of the notice of intent (N.O.I.) and stormwater pollution prevention plan (SWPPP) as required by the General Permit must be filed with the Town of Evans prior to construction. Per the General Permit, construction cannot begin until the required time period for NYS DEC review has passed.
P. 
Certification. The applicant shall provide the following certifications.
(1) 
The foundation, tower and compatibility of the tower with the rotor and rotor-related equipment shall be certified, in writing, by a structural engineer registered in New York. The engineer shall certify compliance with good engineering practices and compliance with the appropriate provisions of the Uniform Construction Code that have been adopted in New York State.
(2) 
After completion of the wind energy conversion system, the applicant shall provide a postconstruction certification from a licensed professional engineer registered in the State of New York that the project complies with applicable codes and industry practices and has been completed according to the design plans.
(3) 
The electrical system shall be certified, in writing, by an electrical engineer registered in New York. The engineer shall certify compliance with good engineering practices and with the appropriate provisions of the Electric Code that have been adopted by New York State.
(4) 
The rotor overspeed control system shall be certified, in writing, by a mechanical engineer registered in New York State. The engineer shall certify compliance with good engineering practices.
(5) 
Certificate of completion must be supplied by the applicant and approved by the Town of Evans Code Enforcement Officer.

§ 198-6 Monitoring requirements.

A. 
Upon reasonable notice, Town of Evans officials or their designated representatives may enter a lot on which a commercial wind energy conversion system permit has been granted for the purpose of compliance with any permit requirements. Twenty-four hours advance notice by telephone to the owner/operator or designated contact person shall be deemed reasonable notice.
B. 
The applicant shall submit a plan for monitoring the avian/bat impact of the commercial wind energy conversion system to the Planning Board for its review and approval. Such plan shall document and follow accepted scientific study procedures. In addition, the applicant shall agree to submit a report to the Planning Board according to the requirements of the applicable regulatory agencies that identifies all dead birds found within 500 feet of the commercial wind energy conversion system.
C. 
The applicant shall agree to submit periodic monitoring reports to the Planning Board. The report shall contain data on the operations and environmental impacts, and shall be in the form prescribed by the Planning Board.
D. 
The applicant shall agree to submit a quarterly power production report to the Planning Board. The power production report shall cover the preceding calendar quarter, and shall be in the form prescribed by the Planning Board and shall include actual power production in kilowatt hours for each commercial wind energy conversion system.
E. 
Unless waived by the Planning Board, wind turbines or poles over 150 feet in height shall be inspected annually by a New York State licensed professional engineer that has been approved by the Town or at any other time upon a determination by the Town's Code Enforcement Office that the wind turbine, tower or pole may have sustained structural damage, and a copy of the inspection report shall be submitted to the Town Code Enforcement Officer. Any fee or expense associated with this inspection shall be borne entirely by the permit holder.
F. 
General complaint process.
(1) 
During construction, the Town of Evans Code Enforcement Officer can issue a stop order at any time for any violations of the permit.
(2) 
After construction is complete, the permit holder shall establish a contact person, including name and phone number, for receipt of any complaint concerning any permit requirements. Upon receipt of complaint from the Town of Evans Code Enforcement Officer, the permit holder/contact person shall have seven working days to reply to the Town in writing.

§ 198-7 Application and development impact fees and costs.

A. 
The applicant shall pay all costs associated with the Town of Evans review and processing of the application. The applicant shall submit a deposit with the application in the amount as determined by resolution by the Town Board. The Town of Evans may require additional deposits to cover the costs of reviewing and processing the application. Such additional deposits, if requested, shall be promptly submitted by the applicant. Following action on the application, any unused amount of the deposit(s) shall be returned to the applicant with a summary of the costs incurred.
B. 
A one-time or periodic fee and a requirement to provide public works or services may be imposed as a condition of a commercial wind energy conversion system permit. Such fees must be related to the public need created by the wind energy development. The purposes for which the permit fee may be used include, but are not limited to, providing roads required by the wind energy development, providing fire-protection services, and establishing and operating a monitoring system.
C. 
The Town of Evans reserves the right to, by local law, provide that no exemption pursuant to the provision of the New York State Real Property Tax Law (RPTL) § 487 shall be applicable within its jurisdiction.
D. 
Proof of insurance. Prior to the issuance of a building permit, the applicant shall provide the Town Clerk with proof of insurance in a sufficient dollar amount to cover potential personal and property damage associated with construction and operation thereof.

§ 198-8 Procedure for issuance of permit; renewal; amendment.

A. 
Findings necessary to grant a commercial wind energy conversion system permit. In order to grant a commercial wind energy conversion system permit, the Town of Evans shall review the application; all filings by any other party; and conduct a public hearing. A commercial wind energy conversion system permit shall not be granted unless the Town of Evans makes the following findings based on substantial evidence:
(1) 
Consistent with the comprehensive plan. The proposed commercial wind energy conversion system project is consistent with the Comprehensive Plan of the Town of Evans.
(2) 
Will not unreasonably interfere with the orderly land use and development plans. The proposed commercial wind energy conversion system will not unreasonably interfere with the orderly land use and development plans of the Town of Evans.
(3) 
Benefits to the applicant and public will exceed any burdens. That the benefits to the applicant and the public of the proposed commercial wind energy conversion system project will exceed any burdens.
(4) 
Not detrimental to the public health, safety and general welfare of the community. The proposed commercial wind energy conversion system will not be detrimental to the public health, safety or general welfare of the community.
(5) 
The proposed commercial wind energy conversion system shall comply with all required provisions of the Zoning Ordinance,[1] unless variances have been properly applied for and granted pursuant to the Code of the Town of Evans.
[1]
Editor's Note: See Ch. 200, Zoning.
B. 
The Town Board may grant the special use permit, deny the special use permit, or grant the special use permit with written stated conditions. Denial of the special use permit shall be by written decision based upon substantial evidence submitted to the Board. Upon issuance of the special use permit, the applicant shall obtain a building permit for each tower.
C. 
WECS permits approved by the Town Board of the Town of Evans shall be renewed annually. The permit holder shall make renewal application to the Planning Department 60 days prior to expiration to allow for inspection and full compliance with all applicable laws and regulations. The renewal application will include a fee set by the Town Board.
D. 
The special use permit shall not be assignable or transferable.
E. 
Any postconstruction changes or alterations to the wind energy conversion system shall be done only by amendment to the special use permit and subject to all requirements of this article.

§ 198-9 Liability.

The applicant licensee shall agree to indemnify and save the Town, its Town Board, officers, agents and employees harmless from any liability imposed upon the Town, its officers, agents, and/or employees arising from the construction, operation, or maintenance of the WECS.

§ 198-10 Wind measurement towers.

The Town Board acknowledges that prior to construction of a WECS, a wind-site assessment is conducted to determine the wind speeds and feasibility of using particular sites. Installation of wind measurement towers, also known as anemometer ("Met") towers, shall be permitted as a special use in the same zoning districts as the WECS.
A. 
An application for a wind measurement tower shall include:
(1) 
Name, address, 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 the original signature of the applicant authorizing the representation.
(2) 
Name, address, telephone number of 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.
(3) 
Address of each proposed tower site, including Tax Map section, block, and lot number.
(4) 
Site plan.
(5) 
Decommissioning plan, including a security bond or cash for removal.
B. 
The Town Board may attach such conditions as it deems appropriate to variance approvals as it deems necessary to minimize the impact of the variance.
[Adopted 8-13-2008 by L.L. No. 6-2008]

§ 198-11 Special use permit required.

The placement, construction, and/or modification of any noncommercial wind energy conversion systems within the Town of Evans shall be permitted only by a special use permit issued by the Town Board, upon site plan approval issued by the Planning Board, after SEQR review, with the Evans Town Board designated as lead agent, and upon issuance of a building permit.

§ 198-12 Permit requirements and conditions.

The review and approval of any noncommercial wind energy conversion system and issuance of a special use permit is subject to all provisions under this section, as follows:
A. 
Applications. Applicants for a special use permit to place, construct or modify wind energy conversion systems within the Town of Evans shall submit the following information to the Planning Board for review and recommendations:
(1) 
Name and address of the applicant.
(2) 
Evidence that the applicant is the owner of the subject property or has the written permission of the owner to make such an application.
(3) 
A site plan, drawn in sufficient detail to show the following:
(a) 
Location and height of the tower(s) on the site and descriptive information, including blades, rotor diameter and ground clearance.
(b) 
Property lot lines and the location and dimensions of all existing structures and uses on site within 500 feet of the wind energy conversion systems.
(c) 
Dimensional representation of the various structural components of the tower construction, including the base and footing.
(4) 
Turbine information, including type, size, height, rotor material, rated power output, performance, safety, and noise characteristics of the residential wind turbine and tower.
(5) 
Photographs or detailed drawings of each wind turbine model, including the tower and foundation.
(6) 
A noise report shall be furnished which includes the manufacturers' noise design and field testing data for the proposed structure.
(7) 
Foundation requirements.
(8) 
Utility interconnection data and a copy of a written notification to the utility of the proposed interconnection.
(9) 
Electrical 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 adopted by New York State.
(10) 
If the WECS is located within a one-hundred-year flood plain area, a detailed report shall be provided that addresses the potential for wind erosion, water erosion, sedimentation and flooding, and includes proposed mitigation measures for such impacts.
(11) 
A full (long) environmental assessment form (EAF).
(12) 
Such additional information as may be reasonably requested by the Town Engineer or Planning Board.
B. 
Special use permits issued for wind energy conversion systems shall be subject to the following conditions.
(1) 
Noncommercial wind energy systems shall be allowed in the following zoning districts:
(a) 
Agriculture and Open Space (A-OS).
(b) 
Rural Agriculture (R-A).
(c) 
Rural Residential (R-R).
(d) 
Light Industrial (L-I).
(e) 
General Industrial (G-I).
(2) 
Setbacks:
(a) 
The applicant shall adhere to the following setbacks.
[1] 
From zoning districts:
[a] 
Five hundred feet from any residential district boundary line.
[b] 
Five hundred feet from any municipal boundary line.
[2] 
From structures: a minimum 1.5 times the total WECS height from any building located outside the applicant's property line.
[3] 
From railroads: a minimum 1.5 times the total WECS height from any railroad right-of-way.
[4] 
From aboveground transmission lines greater than 12 kilovolts: a minimum 1.5 times the total WECS height from any aboveground transmission line greater than 12 kilovolts.
(b) 
Notwithstanding the provisions set forth in Subsection B(2)(a), such setbacks from lot lines do not apply if the application is accompanied by a legally enforceable agreement for a period of 25 years or the life of the permit, whichever is longer, that the adjacent landowner agrees to the elimination of the setback.
(3) 
Only one noncommercial wind energy conversion system tower shall be allowed per legal lot or as determined by the Planning Board.
(4) 
The system shall be primarily used to reduce the on-site consumption of electricity and at no times shall electricity be distributed across property lines.
(5) 
The maximum overall height of any noncommercial wind energy conversion system shall be 175 feet.
(6) 
Noncommercial wind energy conversion system shall only be located in rear yards.
(7) 
All property owners located within 1,000 feet of the subject property line shall be notified by the Town Clerk of the applicant's interest to construct a noncommercial wind energy conversion system within 10 days of the filing of an application for a WECS permit from the Town of Evans. This notification shall include the size, location and planned construction date of WECS system. Failure to comply with this notification will not constitute a jurisdictional defect.
(8) 
No advertising sign or logo shall be placed or painted on any noncommercial wind energy facility. A noncommercial wind energy facility permit may only allow the placement of the tower's manufacturer's logo on a system generator housing in an unobtrusive manner. Appropriate signage shall be placed on wind turbine towers, and electrical equipment signage warning of electrical shock or high voltage and harm from revolving machinery. Signage shall also include one twenty-four-hour emergency contact number for the property owner.
(9) 
Exterior lighting on any structure associated with the system shall not be allowed except that which is specifically required by the Federal Aviation Administration.
(10) 
Wind turbines shall be painted a nonobtrusive color that is nonreflective (e.g., light color, such as white, gray, or beige).
(11) 
The applicant is required to obtain all necessary regulatory approvals and permits from federal, state, county, and local agencies having jurisdiction and approval related to the construction of the Wind Energy Conservation System.
(12) 
The applicant shall adhere to the following safety and security requirements.
(a) 
Each wind turbine shall be equipped with both manual and automatic controls to limit the rotational speed of the blade within the design limits of the rotor. Manual electrical and/or overspeed shutdown disconnect switches shall be provided and clearly labeled on the wind turbine structure. No wind turbine shall be permitted that lacks an automatic braking, governing, or feathering system to prevent uncontrolled rotation, overspeeding and excessive pressure on the tower structure, rotor blades, and turbine components.
(b) 
All structures shall be grounded according to applicable electrical code in the event of a lightning strike.
(c) 
All wiring associated with the wind energy facility shall be installed underground, except for tie-ins to a public utility company and public utility company transmission poles, towers or lines.
(d) 
The blade tip of any wind turbine shall, at its lowest point, have ground clearance of not less than 30 feet.
(e) 
Wind turbine towers shall not be climbable up to 30 feet above ground level.
(f) 
Anchor points for any guy wires for a system tower shall be located within the subject property and not extend 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 high or sheathed in bright orange or yellow covering extending up to eight feet above the ground. The minimum setback for the guy wire anchors shall be 10 feet from the property boundary.
(13) 
The applicant shall adhere to the following noise requirements.
(a) 
Wind turbine operations shall not create noise levels, as measured at the property boundary, that exceed 45 dB(A) for more than five minutes out of any one-hour-time period or that exceed 50 dB(A) during any time period.
(b) 
A noncommercial wind energy conversion system shall not be operated so that impulsive sound below 20 Hz (low-frequency noise) adversely affects the habitability or use of any dwelling unit, hospital, school, library, nursing home, or other sensitive noise receptor.
(14) 
Development and operation of a noncommercial wind energy conversion system shall not have a significant adverse impact on endangered or threatened fish, wildlife, or plant species or their critical habitats, or other significant habitats or on migratory bird species.
(15) 
The operation of a noncommercial wind energy conversion energy system shall not cause electromagnetic interference. If it is demonstrated that a system is causing interference, the system operator shall promptly mitigate the harmful interference or cease operation of the system.
(16) 
The applicant shall adhere to the following for the reclamation of unsafe and inoperable wind energy facilities; site reclamation:
(a) 
Every unsafe and inoperable noncommercial wind energy conversion system shall be declared a public nuisance that is subject to abatement by repair, rehabilitation, demolition, or removal.
(b) 
Unsafe and inoperable noncommercial wind energy conversion systems and facilities for which the permit has expired shall be removed by the owner. All safety hazards shall be eliminated and the site shall be restored to its natural condition to the greatest extent feasible. (A noncommercial wind energy facility shall be deemed inoperable if it has not generated power within the preceding six months.)
(c) 
Where the owner can demonstrate that modernization, rebuilding or repairs are in progress or planned and will be completed within no more than six months, an inoperable noncommercial wind energy facility shall not be considered a public nuisance.
(17) 
Interconnection and electrical distribution facilities shall adhere to the following:
(a) 
All interconnection facilities shall be constructed to the specifications of the utility.
(b) 
Interconnection shall conform to procedures and standards established by the Federal Regulatory Commission and the New York State Public Service Commission as applicable.
(18) 
The applicant is required to provide the following certifications:
(a) 
The foundation, tower and compatibility of the tower with the rotor and rotor- related equipment shall be certified, in writing, by a structural engineer registered in New York. The engineer shall certify compliance with good engineering practices and compliance with the appropriate provisions of the Uniform Construction Code that have been adopted in New York State.
(b) 
The electrical system shall be certified, in writing, by an electrical engineer registered in New York. The Engineer shall certify compliance with good engineering practices and with the appropriate provisions of the Electrical Code that have been adopted by New York State.
(c) 
The rotor overspeed control system shall be certified, in writing, by a mechanical engineer registered in New York State. The Engineer shall certify compliance with good engineering practices.
(19) 
General compliance process:
(a) 
During construction the Town of Evans Code Enforcement Officer can issue a stop order at any time for any violations of the permit.
(b) 
After construction is complete, the permit holder shall establish a contact person, including name and phone number, for receipt of any complaint concerning any permit requirements. Upon receipt of complaint from the Town of Evans Code Enforcement Officer, the permit holder/contact person shall have seven working days to reply to the Town, in writing.
(20) 
Final inspection shall be conducted by the Town of Evans Code Enforcement Officer in conjunction with the Town Engineer to insure compliance with all manufacturers' specifications and the New York State Uniform Construction Code.

§ 198-13 Application fees and costs.

The applicant shall pay all costs associated with the Town of Evans' review and processing of the application. The applicant shall submit the specified review fees at the time the application and supporting materials are submitted to the Town.

§ 198-14 Procedure for issuance of permit; renewal; amendment.

A. 
Findings necessary to grant a noncommercial wind energy conversion system permit. In order to grant a noncommercial wind energy conversion system permit, the Town of Evans shall review the application; all filings by any other party; conduct the required environmental review; and hold a public hearing for the project. A noncommercial wind energy conversion system permit shall not be granted unless the Town of Evans makes the following findings based on substantial evidence:
(1) 
The proposed noncommercial wind energy conversion system project is consistent with the Comprehensive Plan of Town of Evans.
(2) 
The proposed noncommercial wind energy conversion system will not unreasonably interfere with the orderly land use and development plans of the Town of Evans.
(3) 
The proposed noncommercial wind energy conversion system will not be detrimental to the public health, safety or general welfare of the community.
(4) 
The proposed noncommercial wind energy conversion system shall comply with all required provisions of the Zoning Ordinance,[1] unless variances have been properly applied for and granted pursuant to the Code of the Town of Evans.
[1]
Editor's Note: See Ch. 200, Zoning.
B. 
The Town Board may grant the special use permit, deny the special use permit, or grant the special use permit with conditions. Denial of the special use permit shall be by written decision based upon substantial evidence submitted to the Board. Upon issuance of the special use permit, the applicant shall obtain a building permit for the tower.
C. 
WECS permits approved by the Town Board of the Town of Evans shall be renewed annually. The permit holder shall make renewal application to the Planning Department 60 days prior to expiration to allow for inspection and full compliance with all applicable laws and regulations. The renewal application will include a fee set by the Town Board.
D. 
The special use permit shall not be assignable or transferable.
E. 
Amendments to special use permit. Any postconstruction changes or alterations to the wind energy conversion system shall be done only by amendment to the special use permit and subject to all requirements of this article.

§ 198-15 Liability.

The applicant shall agree to indemnify and save the Town, its Town Board, officers, agents and employees harmless from any liability imposed upon the Town, its officers, agents, and/or employees arising from the construction, operation, or maintenance of the WECS.

§ 198-16 Agricultural use.

No permit or other approval shall be required under this article for noncommercial wind energy conversion systems that are solely used for agricultural operations located in a state or county agricultural district, as long as the property owner, or designated agent submits the following to the Town of Evans Planning Board for review prior to installation:
A. 
Information requested in § 198-12A(4) (manufacturer information).
B. 
A sketch plan showing their compliance with the setbacks outlined in § 198-12B(2) (set plan with setbacks).
C. 
Compliance with § 198-12B(12) (safety and security requirements).
D. 
Compliance with § 198-12B(15) (radio/TV interference).
E. 
Compliance with § 198-12B(17) (interconnection to electrical facilities).
F. 
Compliance with § 198-12B(18) (mechanical/electrical certifications).