[HISTORY: Adopted by the Town Board of the
Town of Newstead 7-23-2007 by L.L.
No. 2-2007. Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 450.
This chapter shall be known as Local Law No.
2 of the Year 2007 entitled "Windmill Law of the Town of Newstead."
The purpose of this chapter is to promote the
effective and efficient use of wind energy conversion systems (WECS)
(commonly referred to as "windmills") and to regulate the placement
of WECS so that the public health, safety, natural resources, and
aesthetics will not be jeopardized and to amend the Code of the Town
of Newstead to add a new law regulating the size, location, setback
requirements, installation, operation and maintenance of WECS within
the Town of Newstead. This chapter is intended to insure that WECS
that are constructed within the Town of Newstead are not detrimental
to other property owners, do not create a nuisance and are not detrimental
to the health, safety and general welfare of the residents of the
Town.
A.
The Town Board of the Town of Newstead finds and declares
that wind energy is an abundant, renewable and nonpolluting energy
resource of the Town and that its conversion to electricity will reduce
our dependence on nonrenewable energy sources and decrease the air
and water pollution that results from the use of conventional energy
sources.
B.
The Town Board of the Town of Newstead further finds
and declares that:
(1)
Wind turbines that convert wind energy to electricity
are currently available on a commercial basis from many manufacturers.
(2)
The generation of electricity from properly sited
wind turbines can be cost effective, and in many cases existing power
distribution systems can be used to transmit electricity from wind-generating
stations to utilities or other users.
(3)
Regulation of the siting and installation of wind
turbines is necessary for the purpose of protecting the health and
safety of neighboring property owners and the general public, and
the aesthetics of the community.
As used in this chapter, the following terms
shall have the meanings indicated:
In compliance with Agriculture and Markets Law (AML) § 305-a,
Subdivision 11, as well as eligible for an agricultural property tax
assessment or exemption.
A mechanism used to limit the speed of blade rotation to
below the design limits of the WECS.
The alternating pattern of sun and shade caused by the WECS
blades casting a shadow. "Shade" shall be defined as the decrease
of light intensity of 20% or more.
The physical location of a WECS, including the related tower
and transmission equipment.
The largest area of the WECS which extracts energy from the
wind stream. In a conventional propeller-type WECS, there is a direct
relationship between swept area and the rotor diameter.
The height of the tower and the furthest vertical extension
of the WECS.
A machine that converts the kinetic energy in the wind into
a usable form (commonly know as a "wind turbine" or "windmill"). The
WECS includes all parts of the system including the tower and the
transmission equipment; the turbine or windmill may be on a horizontal
or vertical axis, rotor or propeller.
More than one WECS (two or more wind turbines or windmills)
located within one site or adjacent sites.
Two types of WECS are addressed herein: Type 1: A commercial unit designed for the generation of power supplied to the local grid; Type 2: A unit designed to supply power primarily to a single residence or property owner and can supply power to the grid on a limited basis. WECS associated with agricultural or farm operations and supplying a portion of a farm's electrical needs (not exceeding 110% of the farm's anticipated demand) shall be considered a Type 2 WECS. Unless otherwise stated, requirements (§§ 422-5 and 422-6) apply to both types of WECS. Subsection C(2) provides specific exemptions for nonelectrical windmills less than 50 feet in height and electrical windmills less than 50 feet in height.
A.
Zoning district requirements except for height restrictions.
(2)
Neither a Type 1 WECS nor a Type 1 windmill farm shall
be allowed within 2,500 feet south of Route 5, between Route 5 and
the escarpment or within 5,000 feet of the boundaries of the Village
of Akron.
(3)
No Type 2 WECS shall be allowed within a distance of 30 feet for
each foot in width of the widest width portion of the rotating element
(propeller blade or rotary vane) from Route 5.
[Amended 9-28-2015 by L.L. No. 4-2015]
(4)
No Type 2 WECS shall be permitted to be located on a parcel of less
than 460 feet in width at the point that the proposed WECS is to be
located.
[Added 9-28-2015 by L.L.
No. 4-2015]
B.
Application requirements. All site plan applications
and special use permit applications for WECS and windmill farms shall
meet the requirements of the Newstead Town Code and include a drawing
that depicts the following additional requirements:
(1)
Property lines and physical dimensions of the site.
(2)
Location, approximate dimensions and types of major
existing structures and uses on site.
(3)
Location and elevation of the proposed WECS.
(4)
Location of all aboveground utility lines on site
or within one radius of the total height of the WECS.
(5)
Location and size of any structures and trees above
35 feet within a five-hundred-foot radius of the proposed WECS. For
purposes of this requirement, electrical transmission and distribution
lines, antennas and slender or open lattice towers are not considered
structures. In the case of wooded areas, the wooded area should be
located but individual trees need not be located.
(6)
Show the zoning designations of the immediate and
adjacent sites and the locations of any buildings or improvements
that are within the fall zone defined as 1.5 times the highest part
of the WECS.
(7)
Include make, model, picture and manufacturer's specifications,
including noise decibels.
C.
General provisions. Approval of all site plans or
special use permits for the installation of a WECS or windmill farm
shall comply with the following requirements:
(1)
WECS size. This chapter covers those WECS of any size
unless otherwise noted.
(2)
Exemptions. Windmills of less than 50 feet in height if used for pumping water or ornamental purposes shall be exempted from the location limitations set forth in Subsection A(2) and from the provisions of Subsection C(4) through (19), but they must be sited so that any tip-over will be harmless to others. For all other purposes they shall be considered a Type 2 WECS. WECS associated with agricultural operations shall be exempted from the provisions of Subsection C(17), (18) and (19).
[Amended 9-28-2015 by L.L. No. 4-2015]
(3)
Compliance with building code.[2]
(a)
Building permit applications shall be accompanied
by standard drawings of structural components of the wind energy conversion
system, including support structures, tower, base and footings. Drawings
and any necessary calculations shall be certified, in writing, by
a New York State registered professional engineer that the system
complies with the current building code. This certification would
normally be supplied by the manufacturer.
(b)
Where the structural components or installation
vary from the standard design or specification, the proposed modifications
shall be certified by a New York State registered professional engineer
for compliance with the seismic and structural design provisions of
the building code.
(4)
Compliance with electrical code.[3]
(a)
Building permit applications shall be accompanied
by a line drawing identifying the electrical components of the wind
system to be installed in sufficient detail to allow for a determination
that the manner of installation conforms to the electrical code. The
application shall include a statement from a New York State registered
professional engineer indicating that the electrical system conforms
to good engineering practices and complies with the electrical code.
This certification would normally be supplied by the manufacturer.
All equipment and materials shall be used or installed in accordance
with such drawings and diagrams.
(b)
Where the electrical components of an installation
vary from the standard design or specifications, the proposed modifications
shall be reviewed and certified by a New York State registered professional
engineer for compliance with the requirements of the electrical code
and good engineering practices.
(5)
Rotor safety. Each WECS shall be equipped with both manual and automatic
controls to limit the rotational speed of the blade below the design
limits of the rotor. The application must include a statement by a
New York State-registered professional engineer certifying that the
rotor and over speed controls have been designed and fabricated for
the proposed use in accordance with good engineering practices. The
engineer should also certify the structural compatibility of possible
towers with available rotors. This certification would normally be
supplied by the manufacturer and, if required at the request of the
Building Department, the Planning Board or the Town Board, include
the distance and trajectory of the thrown blade from an exploding
turbine or propeller or the shedding of accumulated ice according
to an accepted Loss of Blade Theory calculation.
[Amended 9-28-2015 by L.L. No. 4-2015]
(6)
Guy wires. Anchor points for guy wires for the WECS
tower shall be located within property lines and not on or across
any aboveground electrical transmission or distribution line. For
a Type 1 WECS guy wires are strongly discouraged; however if necessary
the point of ground attachment for the guy wires shall be enclosed
by a fence six feet high.
(7)
Tower access. Towers should have either:
(a)
Tower-climbing apparatus located no closer than
12 feet to the ground;
(b)
A locked anticlimb device installed on the tower;
or
(c)
The tower shall be completely enclosed by a
locked, protective fence at least six feet high. For windmill farms
a protective fence at least six feet high enclosing the entire site
may be considered.
(8)
Noise. The noise of the turbine shall not exceed 50 dBA at a wind
speed of 20 mph and with a rated electrical load as measured at the
boundaries of the closest parcels that are owned by non-site owners
and abut the site parcels. This requirement shall be verified by manufacturer
supplied analysis based on physical measurements reviewed prior to
the granting of the special use permit.
[Amended 9-28-2015 by L.L. No. 4-2015]
(9)
Electromagnetic interference. The WECS shall be operated
such that no disruptive electromagnetic interference is caused. If
it has been demonstrated to the Town Code Enforcement Officer that
a wind energy conversion system is causing harmful interference, the
operator shall promptly mitigate the harmful interference.
(10)
Signs. Signs shall be posted at the base of the tower
warning of electrical shock or high voltage. Signs shall be visible
from all quadrants.
(11)
Height.
(a)
Type 1: The minimum height of the lowest part
of the swept area of any WECS shall be 30 feet above the highest existing
major structure or tree within a two-hundred-fifty-foot radius. For
purposes of this requirement, electrical transmission and distribution
lines, antennas and slender or open-lattice towers are not considered
structures. The overall height of a Type 1 WECS unit shall be equal
to or less than 600 feet and meet all the FAA requirements relative
to local airports.
(b)
Type 2: The minimum height of the swept area of any WECS shall
be 10 feet above the highest existing major structure or tree within
a one-hundred-foot radius but no less than 20 feet above grade. The
overall height of a Type 2 WECS unit shall be equal to or less than
155 feet and meet all FAA requirements relative to local airports.
Notwithstanding this height limitation of 155 feet, application may
be made to the Town Board for a variance to increase the height to
195 feet.
[Amended 9-28-2015 by L.L. No. 4-2015]
(12)
Setbacks.
(a)
WECS shall be set back from any property line, aboveground utility
line or other WECS a distance greater than 1.5 times its overall height,
including blades, and shall be at least 500 feet from the nearest
residential structure owned by non-site owners. The WECS shall not
be placed in the front yard of any existing structure.
[Amended 9-28-2015 by L.L. No. 4-2015]
(b)
In the case of cluster development, a WECS shall be erected within the common open space area and shall be set back from all residences a distance greater than Subsection C(12)(a) above.
(c)
Contiguous property owners may construct a WECS for use in common, provided that the required setback, as defined in Subsection C(12)(a) above, is maintained relative to the property lines of nonparticipant owners. As a condition of approval of a special use permit for the construction of a WECS for use in common, a written agreement between all involved contiguous property owners governing the ownership, use and maintenance must be submitted to and approved by the Town.
(13)
Utility interconnection for Type 1 WECS. No wind turbine
shall be installed until evidence has been given of a signed interconnection
agreement, or letter of intent, with the interconnecting utility company.
(14)
Abatement. If a wind energy conversion system or systems
are not maintained in operational condition for a period of one year
and/or pose a potential safety hazard, the owner or operator shall
take expeditious action to remedy the situation. The Town of Newstead
reserves the authority to abate any hazardous situation and to pass
the cost of such abatement onto the owner or operator of the system.
If the Town of Newstead determines that the WECS has been abandoned
or poses a safety hazard, the system shall be removed within 45 days
of written notice to the owner or operator of the system.
(15)
Liability insurance for Type 1 WECS. The applicant, owner, lessee
or assignee shall maintain a current insurance policy which will cover
installation and operation of the wind energy conversion system at
all times. As a part of the application review process, the Town will
require proof that the applicant is carrying sufficient liability,
workers' compensation, etc., during installation and operation
of proposed facility. Limits for sail policy shall be set by the Town
based upon the size and scope of each project. Proof of insurance
shall be provided annually to the Town for each year of operation
and shall be submitted on or about the first of each year.
[Amended 9-28-2015 by L.L. No. 4-2015]
(16)
Lighting of tower. Lighting of the tower for aircraft
and helicopters will conform to FAA standards for wattage and color,
when required. Additional lighting may also be required at the request
of the Town Planning Board and/or the Town Board.
(18)
Decommissioning and restoration. The applicant shall
include the following information regarding decommissioning of the
project and restoring the site:
(a)
The applicant shall include the following information
regarding decommissioning and restoring the site:
[1]
The anticipated life of the project;
[2]
The estimated decommissioning costs in current
dollars;
[3]
The method and schedule for updating the costs
of decommissioning and restoration;
[4]
The method of ensuring that funds will be available
for decommissioning and restoration; and
[5]
The anticipated manner in which the project
will be decommissioned and the site restored.
(b)
The Planning Board and/or the Town Board shall
require the applicant to provide an appropriate and adequate demolition
bond for purposes of removing the Type 1 WECS facility in case the
applicant fails to do so as required above. Proof of this bond shall
be provided each year or at renewal time of any special permit.
(c)
The sufficiency of the demolition bond shall
be confirmed at least every five years by an analysis and report of
the cost of removal and property restoration to be performed by a
New York State licensed professional engineer, the cost of same to
be borne by the applicant. If said analysis and report determines
that the amount of the bond in force is insufficient to cover the
removal, disposal and restoration costs, the bond shall be increased
to the amount necessary to cover such costs within 10 days of the
applicant's receipt of such report.
(19)
Support structure cabling. All interconnecting cables
between the WECS and supporting or servicing structures shall be underground.
[Amended 9-28-2015 by L.L. No. 4-2015]
Every application for a special use permit shall be made in
writing and accompanied by a site plan to the Building Department
and shall be accompanied by a filing fee as set forth in the Town's
Standard Schedule of Fees as amended from time to time. The special
use permit application with site plan will include the following:
A.
Name and address of the applicant.
B.
Evidence that the applicant is the owner of the premises
involved or that the applicant has written permission of the owner
to make such an application.
C.
A plot plan and development plan drawn in accordance
with the Town Code.
(1)
Property line and physical dimensions of the proposed
site;
(2)
Location, approximate dimensions and types of major
existing structures and uses of the site;
(3)
Location and elevation of the proposed WECS;
(4)
Where applicable, the location of all transmission
facilities proposed for installation; and
(5)
Where applicable, the location of all road and other
service structures proposed as part of the installation.
(6)
The application shall indicate whether a variance will be required
to obtain a special use permit.
D.
An environmental assessment form (full EAF) shall
be supplied for a Type 1 WECS.
E.
Aesthetics.
(1)
The exterior surface of any visible components of
a WECS must be a nonreflective, neutral color. Type 1 WECS that are
located within view, or within one mile of each other must be of uniform
design, including tower type, color, number of blades, and direction
of blade rotation.
(2)
The Type 1 applicant shall complete a visual environmental
assessment form (visual EAF — SEQR), as well as a visual impact
assessment of any proposed Type 1 WECS or any proposed modifications
to existing Type 1 WECS. The visual impact assessment shall include:
(a)
"Before and after" photos or computer simulations
from key viewpoints both inside and outside of the Town, including
state highways or other major roads, from state county or local parks,
other public lands, from any privately owned preserves and historic
sites normally open to the public and from any other location where
the site is visible to a large number of visitors or travelers. A
balloon test may also be requested by the Planning Board.
(b)
Alternative tower designs.
(c)
Assessment of visual impact from abutting properties
and streets of the tower base, accessory buildings and any other elements
of the WECS identified by the Planning Board.
(d)
A viewshed map of the proposed Type 1 WECS with
a radius of seven miles from any portion of the Type 1 WECS.
F.
Shadow flicker maps shall be prepared for all proposed
Type 1 WECS showing projected annual hours of shadow flicker impact
for all locations. Also included shall be maps showing daily duration
of the shadow flicker.
G.
Upon receipt of a completed application together with the site plan
by the Building Department, unless a variance is requested, the application
shall be forwarded to the Town Board. The Town Board shall then review
the application and order a public hearing, which notice of public
hearing must be published at least five days prior to the public hearing.
(1)
If a variance is requested upon receipt of a completed application,
the application shall first be referred to the Planning Board. The
Planning Board shall review the information provided and may request
any additional information that they deem necessary in order to make
its recommendation. The application together with the recommendations
of the Planning Board as to whether the variance should be granted
together with any conditions required as a condition of granting the
variance shall then be forwarded to the Town Board. The Town Board
shall then review the application and the recommendations of the Planning
Board and order a public hearing, which notice of public hearing must
be published at least five days prior to the public hearing. Where
the application requires the granting of a variance, the notice of
public hearing shall so specify.
(2)
Written notice of the public hearing for all applications for WECS
shall be provided to owners of property within 500 feet of the proposed
WECS. Such written notice shall notify the owners if a variance is
being requested and shall advise property owners that written comments
may be forwarded to the Town Board prior to the public hearing with
comments that are accompanied by the name and address of the person
providing the comments to be made a part of the record of the hearing.
(3)
Upon site plan and special use permit approval by the Town Board,
a building permit application must be made to the Code Enforcement
Officer. (See fee schedule for appropriate application fee).
[Amended 9-28-2015 by L.L. No. 4-2015]
Any and all variances to the requirements of this chapter for
specific installations must be approved by the Town Board. Variances
shall not be allowed for the setback from the property line or the
distance from the nearest existing residence structure owned by non-site
owners. The Town Board reserves the right to grant variances to allow
the increase in height of the Type 2 WECS to a maximum of 195 feet.
[Amended 9-28-2015 by L.L. No. 4-2015]
Any person who violates any provision of this chapter shall
be guilty of a violation and subject to a fine of not more than $5,000
for a Type I WECS and not more than $1,000 for a Type 2 WECS, imprisonment
not to exceed 15 days, or both such fine and imprisonment.
[Amended 9-28-2015 by L.L. No. 4-2015]
A.
The Town Code Enforcement Officer or his designee shall be authorized
to enforce the provisions of this chapter as well as other applicable
code provisions and such Code Enforcement Officer or his designee
shall be provided access, at any time, to any WECS site for the purpose
of ensuring compliance with this or any other applicable code provision.
Such access shall be upon 24 hours' prior notice to the owner/operator
except in the case of an emergency.
B.
Any violation of the requirements as set forth in this chapter or
of the other applicable Code provisions must be corrected within 90
days following receipt of written notice of the violation from the
Code Enforcement Officer of the Town. If such violations are not corrected
within such ninety-day period, the special permit granted for the
WECS may be revoked by the Town. Prior to revocation of the special
permit, the owner/operator shall be notified and provided with an
opportunity to challenge the determination of violation.
C.
Upon revocation of the special permit for the wind turbine, the wind turbine must be decommissioned and removed within 90 days following such revocation. The failure to remove such wind turbine within such ninety-day period shall be deemed to be a violation of this law and subject to the penalty provisions of § 422-8 above. Each additional week that the wind turbine is not removed following such ninety-day period following revocation of the permit shall be a separate violation and subject to the penalty provisions as set forth in § 422-8 above.
[Added 9-28-2015 by L.L.
No. 4-2015]
Local Law No. 3 of the Year 2015, entitled "Amendment to the
Code of the Town of Newstead Placing a Six-Month Moratorium of the
Acceptance of New Applications for Wind Turbines within the Town",
shall be repealed as of the effective date of this section.
