[Added 10-22-2008 by L.L.
No. 2-2008]
As used in this article, the following terms shall have the
meanings indicated:
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 150 feet, and is intended to solely supply electrical
power into a power grid for sale.
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 150 feet.
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.
The support structure, including guyed, monopole and lattice
types, upon which a wind turbine or other mechanical device is mounted.
The height above grade of the uppermost fixed portion of
the tower, excluding the length of any axial rotating turbine blades.
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.
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.
A.
The placement, construction, and major modification of all commercial
wind energy conversion systems within the boundaries of the Town of
Newfane shall be permitted only by special use permit, upon site plan
approval issued by the Planning Board as provided herein, after SEQR
review, with the Town of Newfane designated as lead agent, and upon
issuance of a building permit, and subject to all provisions of this
article.
B.
Applications under this article shall be made as follows. Applicants
for a special use permit to place, construct or modify wind energy
conversion systems within the Town of Newfane shall submit the following
information to the Planning Board for its referral to a professional
engineer or consultant for review and recommendation:
(1)
Name and address of applicant.
(2)
Evidence that the applicant is the owner of the property involved
or has the written permission of the owner to make such an application.
(3)
Visual environmental assessment form (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 Newfane), 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.
(4)
A site plan drawn in sufficient detail to show the following:
(a)
Location of the tower(s) on the site and the tower height, including
blades, rotor diameter and ground clearance.
(b)
Utility lines, both above and below the ground, within a radius
equal to the proposed tower height, including the blades.
(c)
Property lot lines and the location and dimensions of all existing
structures and uses on site within 675 feet of the wind energy conversion
systems.
(d)
Surrounding land use and all structures within 675 feet of the
wind energy conversion systems.
(e)
Dimensional representation of the various structural components
of the tower construction, including the base and footing.
(f)
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.
(g)
Existing topography.
(h)
Proposed plan for grading and removal of natural vegetation.
(i)
Proposed plan for restoration after construction according to
NYS Agriculture and Markets and NYS Department of Environmental Construction
Code.
(j)
Wind characteristics and dominant wind direction from which
50% or more of the energy contained in the wind flows.
(k)
(l)
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 field with name and phone number.
(m)
Tree removal. 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.
(5)
Turbine information. Specific information on 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.
(6)
Turbine drawings. Photographs or detailed drawings of each wind
turbine model, including the tower and foundation.
(7)
Noise report. A noise report shall be furnished which shall
include the following:
(a)
A description and map of the project's noise-producing
features, including the range of noise levels expected, and the tonal
and frequency characteristics expected. The noise report shall include
low-frequency, infrasound, pure tone, and repetitive/impulsive sound.
(b)
A description and map of the noise-sensitive environment, including
any sensitive noise receptors, i.e., residences, hospitals, libraries,
schools, places of worship and other facilities where quiet is important
within two miles of the proposed facilities.
(c)
A survey and report, prepared by a qualified engineer, that
analyzes the pre-existing 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 relative to wind direction;
and analyses at affected sensitive receptors located within two miles
of the proposed project site.
(d)
A description and map showing the potential noise impacts, including
estimates of expected noise impacts upon construction and operation
workers and estimates of expected noise levels at sensitive receptor
locations.
(e)
A description and map of the cumulative noise impacts.
(f)
A description of the projects proposed noise-control features,
including specific measures proposed to protect workers, and specific
measures proposed to mitigate noise impacts for sensitive receptors
consistent with levels in this chapter.
(g)
Identification of any problem areas.
(h)
Manufacturers' noise design and field testing data, both
audible [dB(A)], and low-frequency (deep bass vibration), for all
proposed structures.
(i)
A report that outlines issues any considerations for individuals
that use hearing aids
(8)
A geotechnical report shall be furnished which shall at a minimum
include the following:
(9)
Ice throw calculations: A 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.)
(10)
Blade throw calculations: A report from a New York 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.)
(11)
Catastrophic tower failure: A report from the turbine manufacturer
stating the wind speed and conditions that the turbine is designed
to withstand (including all assumptions).
(12)
FAA notification: A copy of written notification to the Federal
Aviation Administration.
(13)
Utility notification: Utility interconnection data and a copy
of a written notification to the utility of the proposed interconnection.
(14)
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.
(15)
Floodplain: An application that includes any wind turbine which
is located within a 100-year floodplain area, as such flood hazard
areas are shown on the floodplain maps, shall be accompanied by 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.
(16)
Other information. Such additional information as may be reasonably
requested by the Town Engineer or Planning Board.
Special use permits issued for wind energy conversion systems
shall be subject to the following conditions.
A.
Commercial WECS shall be limited in location to the following areas
within the Town of Newfane: that area located on the north by Lake
Ontario, on the south by Wilson-Burt Road and Drake Settlement Road,
on the east by the Newfane Town Line and on the west by the Newfane
Town Line.
B.
Setbacks. The applicant shall adhere to the following setbacks:
(2)
From property lines: a minimum of 1.25 times the total WECS
height from any property line, excluding adjoining lot lines of project
participants.
(4)
From aboveground transmission lines greater than 12 kilovolts:
a minimum of 1.25 times the total WECS height from any aboveground
transmission line greater than 12 kilovolts, excluding where transmission
lines are located within PUD Zones.
(5)
Notwithstanding the provisions set forth in these subsections, 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. This subsection does not apply to the above Subsection B(3) and (4).
C.
Maximum overall height. The maximum overall height of any wind energy
conversion system 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.
Signage limited. No advertising sign or logo shall be placed or painted
on any commercial wind energy facility.
E.
Color and finish.
(1)
Color and finish. Wind turbines shall be painted a nonobtrusive
(e.g., light environmental color such as white, gray, or beige) color
that is nonreflective.
(2)
Camouflage facilities. The design of commercial wind energy
facility 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.
Lighting plan required. The applicant shall submit a commercial wind
energy facility 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 so that
it does not spill over onto neighboring properties.
G.
Compliance with regulatory agencies. 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.
I.
Safety and security requirements. The applicant shall adhere to the
following safety and security requirements:
(1)
Safety shutdown. 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. A 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)
Grounding. All structures which may be charged with lightning
shall be grounded according to applicable electrical codes.
(3)
Wiring. 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 period.
(4)
All transmission lines from wind energy conversion systems to
on-site substations shall be underground. The Planning Board shall
have the authority to waive this requirement if the owner of the property
upon which the transmission line will be sited 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)
Ground clearance. The blade tip of any wind turbine shall, at
its lowest point, have ground clearance of not less than 50 feet.
(6)
Climability. Wind turbine towers shall not be climable up to
15 feet above ground level.
(7)
Access doors locked. 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)
Self-supporting structures. All structures or guy-wire-supported
structures shall be permitted.
(9)
Signage. Appropriate warning signage shall be placed on wind
turbine towers, electrical equipment, and wind energy facility entrances.
Signage shall also include two twenty-four-hour emergency contact
numbers to the owner of the wind turbine in accordance with local,
state, and federal codes.
(10)
Ice throw. The permit shall determine the acceptable ice throw
range based on the activities in the area, location and calculations
of the ice throw.
J.
Noise requirements. The applicant shall adhere to the following noise
requirements:
(1)
Compliance with noise regulations required. A commercial wind
energy facility permit shall not be granted unless the applicant demonstrates
that the proposed project complies with all noise regulations.
(2)
Noise study required. The applicant shall submit a noise study based on the requirements set out in the Subsection B of this section. 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:
(3)
Noise setbacks. 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)
Audible noise standard. The audible noise standard due to wind
turbine operations shall not be created which causes the noise level
at the boundary of the proposed project site to exceed 45 dB(A) for
more than five minutes out of any one-hour time period or to exceed
50 dB(A) for any time period.
(5)
Operations, low-frequency noise: A commercial wind energy facility
shall not be operated so that the impulsive sound below 20 Hz adversely
affects the habitability or use of any dwelling unit, hospital, school,
library, nursing home, or other sensitive noise receptor.
(6)
Noise complaint and investigation process required. The applicant
shall submit a noise complaint and investigation process. The Planning
Board shall determine the adequacy of the noise complaint and investigation
process.
K.
Fire hazard protection. 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, or transmission equipment without regular human occupancy.
(5)
Provision of training and fire-fighting equipment for local
fire protection personnel.
L.
Impact on wildlife species and habitat. The applicant shall adhere
to the following regarding the impact on wildlife species and habitat.
(1)
Endangered or threatened species. Development and operation
of a commercial wind energy facility shall not have a significant
adverse impact on endangered or threatened fish, wildlife, or plant
species or their critical habitats, or other significant habitats
identified in the Town of Newfane Comprehensive Plan and/or the studies
and plans of the regional planning commissions based on criteria established
by the federal or state regulatory agencies.
(2)
Migratory birds. Development and operation of a commercial wind
energy facility shall be evaluated based on SEQR findings.
M.
Unsafe and inoperable wind energy facilities; site reclamation. The
applicant shall adhere to the following:
(1)
Removal and site restoration. Unsafe commercial wind energy
facilities, inoperable commercial wind energy facilities, 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 facility shall be eliminated, and the
site shall be restored to its natural condition to the extent feasible.
A bond or other appropriate form of security shall be required to
cover the cost of the removal and site restoration.
(2)
Removal and site restoration plan required. The applicant shall
submit a removal and site restoration plan and removal and site restoration
plan 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 facility. 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)
Public nuisance. Every unsafe commercial wind energy facility
and every inoperable commercial wind energy facility is hereby declared
a public nuisance which shall be subject to abatement by repair, rehabilitation,
demolition, or removal. An inoperable commercial wind energy facility
shall not be considered a public nuisance, provided that the owner
can demonstrate that modernization, rebuilding or repairs are in process
or planned and will be completed within no more than six months.
(4)
Inoperable, defined. A commercial wind energy facility shall
be deemed inoperable if it has not generated power within the preceding
six months.
N.
Interference with residential television, microwave and radio reception.
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.
O.
Interference with aviation navigational systems. The applicant shall
adhere to the following:
(1)
No interference with aviation facilities. No commercial wind
energy facility shall be installed or operated in a manner that causes
interference with the operation of any aviation facility.
(2)
Compliance with FAA regulations. All commercial wind energy
siting shall comply with Federal Aviation Administration ("FAA") regulations.
(3)
Locking mechanisms to limit radar interference required. 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 start-up 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 facility.
P.
Erosion control. The applicant shall adhere to the following:
(1)
Erosion control plan: Before the Town of Newfane shall issue
a grading or building permit for the commercial wind energy facility,
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 Conservation
SPDES General Permit for Stormwater Discharges from Construction Activity
(Permit No. GP-02-01). A copy of the notice of intent (NOI) and stormwater
pollution prevention plan (SWPPP) as required by the General Permit
must be filed with the Town of Newfane prior to construction. Per
the General Permit, construction cannot begin until the required time
period for NYSDFC review has passed.
Q.
Certification. The applicant shall provide the following certifications:
(1)
Certification of structural components. 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)
Certification of post-construction. After completion of the
wind energy conversion system, the applicant shall provide a post-construction
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 to the design plans.
(3)
Certification of electrical system. 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 has been adopted by New York State.
(4)
Certification of rotor overspeed control. 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)
Certification of project. A certificate of completion must be
supplied by the applicant and approved by the Town of Newfane Code
Enforcement Officer.
A.
Right to enter premises for monitoring. Upon reasonable notice, Town
of Newfane officials or their designated representatives may enter
a lot on which a wind energy conversion system is located to monitor
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.
Avian/Bat impact study plan. The applicant shall submit a plan for
monitoring the avian impact of the commercial wind energy facility
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 for the commercial
wind energy facility.
C.
Periodic reporting required. The applicant shall agree to submit
periodic operations and environmental impacts, which shall be in the
form prescribed by the Planning Board.
D.
Power production report required. 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 facility.
E.
Inspections. 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 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 Newfane Code Enforcement Officer
can issue a stop order at any time for any violations of the permit.
(2)
Post-construction. 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 a complaint from the Town of Newfane Code Enforcement
Officer, the permit/contact person shall have seven working days to
reply to the Town in writing.
A.
Application fee. The applicant shall pay all costs associated with
the Town of Newfane's 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 Newfane
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.
Development fees to be paid. A one-time or periodic fee and a requirement
to provide works or services may be imposed as a condition of a commercial
wind energy facility permit. Such fees must be related to the public
need created by the wind energy development. The purpose 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.
Payment in lieu of taxes (host community agreement). Prior to a building
permit being issued, the applicant is required to negotiate a payment
in lieu of taxes (host community) agreement with the Town of Newfane.
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 of the facility.
E.
The Town of Newfane 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.
In order to grant a commercial wind energy facility permit,
the Town of Newfane shall review the application, all findings by
any other party, and conduct a public hearing. A commercial wind energy
facility permit shall not be granted unless the Town of Newfane makes
the following findings based on substantial evidence:
A.
Consistent with the comprehensive plan. The proposed commercial wind
energy facility project is consistent with the Comprehensive Plan
of the Town of Newfane.
B.
Will not unreasonably interfere with the orderly land use and development
plans. The proposed commercial wind energy facility will not unreasonably
interfere with the orderly land use and development plans of the Town
of Newfane.
C.
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 facility project will exceed any burden.
D.
Not detrimental to the public health, safety and general welfare of the community. The proposed commercial wind energy facility shall comply with all required provisions of the zoning ordinance, unless variances have been properly applied for and granted pursuant to Article XIII of the Zoning Ordinance of the Town of Newfane.
A.
The Planning 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.
B.
The special use permit shall not be assigned.
Any changes or alterations post-construction to the wind energy
conversion system shall be done only by the amendment to the special
use permit and subject to all requirements of this article.
