[Added 6-18-2007[1]]
[1]
Editor's Note: An ordinance adopted 10-1-2007
provided that: "This ordinance shall take effect immediately upon
the expiration of any moratorium enacted by the Council pursuant to
Council Resolution No. 4, 2007. Except for any application made pursuant
to Resolution No. 17, 2007, in which case, this ordinance takes effect
immediately."
The City of Lackawanna has determined that a
comprehensive local law regulating the development of WECS is necessary
to protect the interests of the City and its residents. The City adopts
this article to promote the effective and efficient use of the City's
wind energy resource through WECS and to regulate the placement of
such systems so that the public health, safety and welfare will not
be jeopardized and that the WECS will not have a significant adverse
impact on the aesthetic qualities of the City.
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 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
of 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 use on site to reduce power costs
for sale or redistribution to others. WECS include both commercial
and noncommercial systems.
Any wind energy conversion system or wind measurement tower,
including all related infrastructure, electrical lines and substations,
access roads and accessory structures.
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 tower used for the measurement of meteorological data such
as temperature, wind speed and wind direction.
[Amended 3-5-2008]
The requirements of this article shall apply
to all wind energy facilities proposed, operated, modified, or constructed
after the effective date of this article except for those which began
operation shall to the effective date of this article and also except
for wind energy facilities within the Bethlehem Redevelopment Area
(BRA) where the requirements of this article shall apply to all wind
energy facilities proposed, operated, modified, or constructed after
the effective date of this article unless the Planning Board has issued
final approval for such wind energy facilities prior to December 31,
2007.
[Amended 10-1-2007; 3-5-2008]
A.
No wind energy facilities shall be constructed, reconstructed,
modified, or operated in the City of Lackawanna except in compliance
with this article.
B.
No wind energy facilities shall be constructed, reconstructed,
modified, or operated in the City of Lackawanna except in Industrial
(I), Bethlehem Redevelopment Area (BRA) or Mixed Commercial and Industrial
(MCI) Districts, and with the issuance of a special use permit approved
pursuant to this article, the completion of SEQR, and upon issuance
of a building permit.
C.
Any future construction of wind energy facilities
shall be located in an area west of the canal but in no event shall
be closer than 2,000 feet west of the westerly line of Hamburg Turnpike.
D.
No wind measurement tower shall be constructed in
the City of Lackawanna except in the allowable districts pursuant
to a special use permit and this article.
[Amended 3-5-2008]
A.
Applications for a special use permit for WECS will follow the general process for the issuance of a special use permit as described in Article XIV of the City Code and this article, and shall be made as follows:
(1)
Applicants for a special use permit for wind energy
conversion systems within the City of Lackawanna shall submit the
following information to the City for its referral to a professional
engineer or consultant and to the Planning Board of the City for review
and recommendation to the City Council:
(a)
Name and address of the applicant.
(b)
Evidence that the applicant is the owner of
the property involved or has the written permission of the owner to
make such an application.
(c)
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 City of Lackawanna, 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)
A SEQR full environmental assessment form (EAF).
(e)
A site plan drawn in sufficient detail to show
the following:
[1]
Location of the tower(s) on the site and the
tower height, 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 1,000 feet of the
wind energy conversion systems.
[4]
Surrounding land use and all structures within
1,500 feet of the wind energy conversion systems.
[5]
Dimensional representation of the various structural
components of the tower construction, including the base and footing.
[6]
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.
[7]
Existing topography.
[8]
Proposed plan for grading and removal of natural
vegetation.
[9]
Proposed plan for restoration after construction
according to City of Lackawanna and NYS Department of Environmental
Conservation guidelines.
[10]
Wind characteristics and dominant wind direction
from which 50% or more of the energy contained in the wind flows.
[11]
[12]
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 a contact representative in the field with a name
and phone number.
[13]
Tree removal. All groves of trees shall be located
on the site plan at the time of application. No grove or woodlots
of trees shall be removed without approval of the Planning Board,
excluding the BRA area.
(f)
Turbine information: must contain 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.
(g)
Turbine drawings: must contain photographs or
detailed drawings of each wind turbine model, including the tower
and foundation.
(h)
Noise report. A noise report shall be furnished
which shall include the following:
[1]
A description and map of the projects 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.
[2]
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.
[3]
A survey 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 relative to wind direction
and analyses at affected sensitive receptors, located within two miles
of the proposed project site.
[4]
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.
[5]
A description and map of the cumulative noise
impacts.
[6]
A description of the project's 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 article.
[7]
Identification of any problem areas.
[8]
Manufacturers' noise design and field testing
data, both audible dB(A) and low frequency (deep bass vibration),
for all proposed structures.
[9]
A report that out lines issues and considerations
for individuals that use hearing aids.
(i)
A geotechnical report shall be furnished which
shall, at a minimum, include the following:
(j)
Ice throw calculations: a report from a New
York State professional engineer that calculates the maximum distance
that ice from the turbine blades could he thrown. The basis of the
calculation and all assumptions must be disclosed.
(k)
Blade throw calculations: a 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.
(l)
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.
(m)
FAA notification: a copy of written notification
to the Federal Aviation Administration.
(n)
Utility notification: utility interconnection
data and a copy of a written notification to the utility of the proposed
interconnection.
(o)
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.
(p)
Floodplain. An application that includes any
wind turbine which is located within a one-hundred-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.
(q)
Other information: such additional information
as may be reasonably requested by the Technical Support Department,
Code Enforcement Officer, Planning Board, or City Council.
B.
Special use permits issued for wind energy conversion
systems shall be subject to the following conditions:
(1)
Setbacks. The applicant shall adhere to the following
setbacks:
(c)
From property lines (excluding residential zones
and the BRA):
[1]
A minimum of 1.5 times the total WECS height
from any property line, excluding adjoining lot lines of project participants.
(e)
From aboveground transmission lines greater
than 12 kilovolts:
[1]
A minimum of 1.5 times the total WECS height
from any aboveground transmission line greater than 12 kilovolts,
excluding where transmission lines are located within PUD Zones and
those transmission lines associated with the WECS and in the BRA.
(f)
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.
(2)
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.
(3)
Signage.
(a)
Signage limited. No advertising sign shall be
placed or painted on any commercial wind energy facility.
(4)
Color and finish; camouflage facilities.
(a)
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.
(b)
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.
(5)
Lighting.
(a)
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 it is does not spill over onto neighboring
properties.
(6)
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.
(7)
Safety and security requirements. The applicant shall
adhere to the following safety and security requirements:
(a)
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. 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)
Grounding. All structures which may be charged
with lightning shall be grounded according to applicable electrical
codes.
(c)
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 project.
(d)
All transmission lines from wind energy conversion
systems to oil-site substations shall be underground. The City Council
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 City Council has sufficient
engineering data submitted by the applicant to demonstrate that underground
transmission lines are unfeasible.
(e)
Ground clearance. The blade tip of any wind
turbine shall, at its lowest point, have a ground clearance of not
less than 50 feet.
(f)
Climb ability. Wind turbine towers shall not
be climbable up to 15 feet above ground level.
(g)
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.
(h)
Self-supporting structures. All wind energy
conversion system structures shall be of monopole construction (single
pole). No lattice structures or guy-wire-supported structures shall
be permitted.
(i)
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.
(j)
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.
(8)
Noise requirements. The applicant shall adhere to
the following noise requirements:
(a)
Compliance with noise regulations required.
A WECS permit shall not be granted unless the applicant demonstrates
that the proposed project complies with all noise regulations.
(b)
Noise study required. The applicant shall submit a noise study based on the requirements set out in Subsection B of this section. The Planning Board and Technical Support Department shall determine the adequacy of the noise study and, if necessary, may require further submissions. The noise study shall consider the following:
(c)
Noise setbacks. The City Council 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.
(d)
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
the greater of 45 dB(A) for more than five minutes out of any one-hour
time period or 6 dB(A) greater than the prevailing background noise.
(e)
Operations, low-frequency noise. A WECS facility
shall not be operated so that 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.
(f)
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.
(9)
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:
(a)
Fireproof or fire-resistant building materials.
(b)
Buffers or fire-retardant landscaping.
(c)
Availability of water.
(d)
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.
(e)
Provision of training and fire-fighting equipment
for local fire protection personnel.
(10)
Impact on wildlife species and habitat. The
applicant shall adhere to the following regarding the impact on wildlife
species and habitat:
(a)
Endangered or threatened species. Development
and operation of a WECS 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 City of Lackawanna Comprehensive Plan and/or the studies and
plans of the regional planning commissions based on criteria established
by federal or state regulatory agencies.
(b)
Migratory birds. Development and operation of
a commercial wind energy facility shall be evaluated based on SEQRA
findings.
(11)
Unsafe and inoperable wind energy facilities;
site reclamation. The applicant shall adhere to the following:
(a)
Removal and site restoration. Unsafe WECS facilities, inoperable WECS facilities and WECS facilities for which the permit has expired shall be removed by the owner at his or her expense. 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 as per Subsection B(11)(b) of this section. A bond or other appropriate form of security shall be required to cover the cost of the removal and site restoration at the time of building permit application. The bond shall be payable to the City of Lackawanna for the removal of nonfunctional towers and appurtenant facilities in an amount to be determined by the City for the period of the life of the facility. Any fund established may consist of a letter of credit from a State of New York licensed financial institution. All costs of the financial security shall be borne by the applicant.
(b)
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 Code Enforcement
Officer and City Council for 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 WECS 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.
(c)
Public nuisance. Every unsafe WECS facility
and every inoperable WECS facility is hereby declared a public nuisance
which shall be subject to abatement by repair, rehabilitation, demolition,
or removal. An inoperable WECS facility 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.
(d)
"Inoperable" defined. A commercial wind energy
facility shall be deemed inoperable if it has not generated power
within the preceding six months.
(12)
Interference with residential television, microwave
and radio reception. The applicant must submit proof 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.
(13)
Compliance with FAA regulations. All commercial
wind energy siting shall comply with Federal Aviation Administration
(FAA) regulations.
(a)
Locking mechanisms to limit radar interference
required. All WECS 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 City Council 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 WECS
facility.
(14)
Erosion control. The applicant shall adhere
to the following:
(a)
Erosion control plan required. Before the City
of Lackawanna shall issue a grading or building permit for the WECS
facility, the applicant shall submit an erosion control plan to the
Technical Support Department for 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.
(b)
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 City of Lackawanna prior to
construction. Per the general permit, construction cannot begin until
the required time period for NYSDEC review has passed.
(15)
Certification. The applicant shall provide the
following certifications:
(a)
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 licensed and registered in New York. The engineer shall certify
compliance with good engineering practices and compliance with the
appropriate provisions of the Uniform Building and Construction Code
that have been adopted in New York State.
(b)
Certification of post construction. After completion
of the wind energy conversion system, the applicant shall provide
a postconstruction certification from a licensed professional engineer
licensed and 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.
(c)
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 Electric Code
that have been adopted by New York State.
(d)
Certification of rotor overspeed control. The
rotor overspeed control system shall be certified in writing by a
mechanical engineer licensed and registered in New York State. The
engineer shall certify compliance with good engineering practices.
(e)
Certification of project. A certificate of completion
must be supplied by the applicant and approved by the City of Lackawanna
Code Enforcement Officer.
C.
Monitoring requirements for wind energy conversion
systems.
(1)
Right to enter premises for monitoring. Upon reasonable
notice, City of Lackawanna officials or their designated representatives
may enter a lot on which a WECS facility 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.
(2)
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 of the commercial
wind energy facility.
(3)
Periodic reporting required. The applicant shall agree
to submit periodic monitoring reports to the City. The report shall
contain data on the operations and environmental impacts and shall
be in the form prescribed by the Code Enforcement Officer.
(4)
Power production report required. The applicant shall
agree to submit as requested by the City Council a power production
report to the City. The power production report shall include actual
power production in kilowatt hours for each WECS facility.
(5)
Inspections. Unless waived by the City Council, 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 City or at any other time upon a determination by the City'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 City Code Enforcement Officer. Any fee or expense
associated with this inspection shall be borne entirely by the permit
holder.
(6)
General complaint process.
(a)
During construction, the City of Lackawanna
Code Enforcement Officer can issue a stop-work order at any time for
any violations of the permit.
(b)
Postconstruction. 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 City of Lackawanna
Code Enforcement Officer, the permit holder contact person shall have
seven working days to reply to the City in writing.
D.
Application and development fees and costs.
(1)
Application fee. The applicant shall pay a fee of
$5,000 per wind energy system associated with the City of Lackawanna's
review and processing of the application. The applicant shall submit
a deposit with the application in the amount as set forth above. 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.
(2)
Development fees to be paid. 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 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 development,
providing fire protection services, and establishing and operating
a monitoring system.
(3)
Proof of insurance. Prior to the issuance of a building
permit, the applicant shall provide the City Clerk with proof of insurance
in a sufficient dollar amount to cover potential personal and property
damage associated with the construction and operation thereof.
E.
Findings.
(1)
Findings necessary to grant a WECS facility permit.
In order to grant a WECS facility permit, the City of Lackawanna shall
review the application and all filings by any other party and conduct
a public hearing. A commercial wind energy facility permit shall not
be granted unless the City of Lackawanna 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 City of Lackawanna.
(b)
Will not unreasonably interfere with the orderly
land use and development plans. The proposed WECS facility will not
unreasonably interfere with the orderly land use and development plans
of the City of Lackawanna.
(c)
Benefits to the applicant and public will exceed
any burdens. The benefits of the proposed WECS facility project to
the applicant and the public will exceed any burdens.
(d)
Not detrimental to the public health, safety
and general welfare of the community. The proposed WECS facility will
not he detrimental to the public health, safety or general welfare
of the community.
F.
The City Council 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.
G.
WECS permits approved by the City Council of the City
of Lackawanna shall be renewed annually. The permit holder shall make
renewal application to the Supervising Building Inspector 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 as set by the City Council of no more than $500 per
wind energy system.
H.
The special use permit shall not be assignable or
transferable without the approval of the City Council.
I.
Amendments to special use permit. Any changes or alterations
postconstruction to the WECS shall be done only by amendment to the
special use permit and subject to all requirements of this article.
J.
The applicant licensee shall agree to indemnify and
hold the City, its City Council, officers, agents and employees harmless
from any liability imposed upon the City, its officers, agents and/or
employees arising from the construction, operation or maintenance
of the WECS.
K.
The applicant shall certify to the City that appropriate
security will be in place to restrict access to the WECS and facilities
following completion of construction.
[Amended 3-5-2008]
The City Council 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 and telephone number of the applicant.
If the applicant is represented by an agent, the application shall
include the name, address and telephone number of the agent as well
as an original signature of the applicant authorizing the representation.
(2)
Name, address and telephone number of the property
owner. If the property owner is not the applicant, the application
shall include a letter or other written permission signed by the property
owner confirming that the property owner is familiar with the proposed
applications and authorizing the submission of the application.
(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 City Council may attach such conditions as it
deems appropriate to variance approvals as it deems necessary to minimize
the impact of the variance.
C.
The "Met" towers installed prior to February 1, 2008
shall be exempt from the requirements set forth in this section.
A.
Testing fund. A special use permit shall contain a
requirement that the application fund periodic noise testing by a
qualified independent third-party acoustical measurement consultant,
which may be required as often as every two years or more frequently
upon request of the City Council in response to complaints by residents.
The scope of the noise testing shall be to demonstrate compliance
with the terms and conditions of the special use permit and this article
and shall also include an evaluation of any complaints received by
the City. The applicant shall have 90 days after written notice from
the City Council to cure any deficiency. An extension of the ninety-day
period may be considered by the City Council, but the total period
may not exceed 180 days.
B.
Operation. A WECS shall be maintained in operational
condition at all times, subject to reasonable maintenance and repair
outages. Operational condition includes meeting all noise requirements
and other permit conditions. Should a WECS become inoperable, or should
any part of the WECS be damaged, or should a WECS violate permit conditions,
the owner or operator shall remedy the situation within 90 days after
written notice from the City Council. The applicant shall have 90
days after written notice from the City Council to cure any deficiency.
An extension of the ninety-day period may be considered by the City
Council, but the total period may not exceed 180 days.
C.
Notwithstanding any other abatement provision under
this article, if the WECS is not repaired or made operational or brought
into permit compliance after said notice, the City may, after a public
hearing at which the operator or owner shall be given opportunity
to be heard and present evidence, including a plan to come into compliance,
either order remedial action within a particular timeframe or order
revocation of the wind energy permit or the WECS and require the removal
of the WECS within 90 days. If the WECS is not removed, the City Council
shall have the right to use the security posted as part of the decommission
plan to remove the WECS.
[Amended 3-5-2008]
All fees required under this article shall be
approved by the City Council by resolution. Nothing in this article
shall he read as limiting the ability of the City to enter into host
community agreements with any applicant to compensate the City for
expenses or impacts on the community. The City shall require any applicant
to enter into an escrow agreement to pay the engineering and legal
costs of any application review, including the review required by
SEQRA.
A.
Any person owning, controlling or managing any building,
structure or land who shall undertake a WECS or wind measurement tower
in violation of this article or in noncompliance with the terms and
conditions of any permit issued pursuant to this article or any order
of the enforcement officer and any person who shall assist in so doing
shall be guilty of an offense and subjected to a fine of not more
than $250 or to imprisonment for a period of not more than six months,
or both. Every such person shall be deemed guilty of a separate offense
for each week such violation shall continue. The City may institute
a civil proceeding to collect civil penalties in the amount of $250
for each violation, and each week said violation continues shall be
deemed a separate violation.
B.
In case of any violation or threatened violation of
any of the provisions of this article, including the terms and conditions
imposed by any permit issued pursuant to this article, in addition
to other remedies and penalties herein provided, the City may institute
any appropriate action or proceeding to prevent such unlawful erection,
structural alteration, reconstruction, moving and/or use, and to restrain,
correct or abate such violation to prevent the illegal act.
