[HISTORY: Adopted by the Town Board of the Town of Victor 12-14-2009 by L.L. No.
14-2009. Amendments noted where applicable.]
This chapter is enacted pursuant to the legislative authority
of § 10 of the New York Municipal Home Rule Law and has
been duly adopted according to the procedures set forth therein.
This chapter shall be known as the "Town of Victor Wind Energy
Conversion Systems Code" and may be cited as "Local Law No. 14-2009
of the Town of Victor."
The Town of Victor recognizes the increased demand for alternative energy-generating facilities and the corresponding need for more inexpensive power that wind energy conversion facilities (wind turbines) may provide. Often these facilities require the construction of single or multiple wind turbines. The purpose of this chapter is to implement Chapter 206, entitled "Wind Energy Conversion Systems," in order to regulate the use of wind turbines within the Town of Victor by, among other things, protecting the community's interest in properly siting wind turbines in a manner consistent with sound land planning and, more generally, to promote the government, protection, order, conduct, safety, health and well-being of the persons and property within the Town of Victor.
The requirements of this chapter shall apply to all wind energy
facilities proposed, operated, modified, or constructed after the
effective date of this chapter.
The Town of Victor finds and declares that:
A.
Wind energy is an abundant, renewable, and nonpolluting energy resource
of the Town, and its conversion to electricity may reduce dependence
on nonrenewable energy sources and decrease the air and water pollution
that results from the use of conventional energy sources.
B.
The generation of electricity from properly sited wind turbines can
be cost effective and can be used to reduce or offset on-site consumption.
C.
The Town of Victor wishes to encourage the residential, commercial,
industrial and institutional use of alternative energy-generating
facilities for the purposes of reducing on-site consumption of utility
power, provided that a project can be defined that is in general harmony
with, and promotes, the general purposes and intent of related Town
laws and ordinances regulating land use.
D.
The Town of Victor has a limited wind resource, and the opportunities
for development of utility-scale (nonprivate) wind energy conversion
facilities of multiple, large turbines are limited by the residential
population and parcel configuration.
E.
The visual impact, including lighting, of utility-scale (nonprivate)
wind energy conversion facilities of multiple, large turbines is significant.
F.
If not properly regulated, installation of wind energy conversion
facilities can create drainage problems for facility sites and access
roads through erosion and lack of sediment control and can harm farmlands
through improper construction methods.
G.
Wind energy conversion facilities may present a risk to bird and
bat populations if not properly sited.
H.
Construction of wind energy conversion facilities can create traffic
problems and damage local roads.
I.
Regulation of the siting and installation of wind energy conversion
facilities is necessary for the purpose of protecting the environment,
as well as the health, safety, and welfare of neighboring property
owners and the general public, from any potential impacts, including,
but not limited to, the following:
(1)
Wind energy conversion facilities represent significant potential
aesthetic impacts because of their size, height, lighting, and shadow
flicker effects.
(2)
If not properly sited, wind energy conversion facilities may present
risks to the property values of adjoining property owners.
(3)
Wind energy conversion facilities are sources of noise, which, if
unregulated, can negatively impact adjoining properties.
(4)
Wind energy conversion facilities can cause interference issues with
various types of communications.
As used in this chapter, the following terms shall have the
meanings indicated:
The noise level which is exceeded 90% of the time (expressed
as "L90"), or 54 minutes of every hour.
The environmental assessment form used in the implementation
of the SEQRA[1] as that term is defined in Part 617 of Title 6 of the
New York Codes, Rules and Regulations.
Capable of being occupied or lived in.
A private WECS with a power output that serves an agricultural,
commercial, industrial or institutional use or building. For the purposes
of this chapter, any private WECS not meeting the requirements of
a residential WECS shall be considered a nonresidential WECS even
if located within a residential zoning district.
A wind energy conversion system (WECS) consisting of one
or more wind turbines with associated towers, buildings, equipment,
and control or conversion electronics that meets the requirements
of this chapter and whose power output is intended to be used on site
by the property owner or tenant to reduce or offset on-site consumption
of utility power. Private WECS include residential and nonresidential
WECS.
Any dwelling suitable for habitation existing in the Town
of Victor on the date that a specific application is deemed complete,
including seasonal homes, but not including hotels, hospitals, motels,
dormitories, sanitariums, nursing homes, senior housing, schools,
correctional institutions or other buildings used for educational
purposes. A residence may be part of a multidwelling building.
A private WECS with a power output that serves a residence
as defined herein.
A relatively small private WECS, whether residential or nonresidential,
mounted on a building's roof.
The New York State Environmental Quality Review Act[2] and its implementing regulations in Title 6 of the New
York Codes, Rules and Regulations, Part 617.
The alternating changes in light intensity due to the moving
shadows of the rotating blades of a WECS that are cast by the sun
on the ground, objects, or structures. Shadow flicker is not the viewing
of the sun through the rotating blades of a WECS.
The parcel(s) of land where the wind energy conversion facility
is to be placed. The site may be publicly or privately owned by an
individual or a group of individuals controlling single or adjacent
properties. Where there are multiple applicants, their joint lots
shall be treated as one lot for purposes of applying the requirements
of this chapter. Any property which has a wind energy conversion facility
or has entered an agreement for said facility or a setback agreement
shall not be considered off site.
The height of the WECS tower and blade at the highest vertical
extension of the blade above finished grade.
A wind energy conversion system consisting of wind turbines,
towers and all related infrastructure, including electrical lines
and substations, access roads, and accessory structures, which generate
original power on site to be transferred to a transmission system
for distribution to customers. The definition of "utility-scale WECS"
shall not include wind power-generating facilities with a power output
that is intended to be used on site by the property owner or tenant
to reduce or offset on-site consumption of utility power. Any wind
energy conversion system not meeting the definition of a private wind
energy conversion system shall, for the purposes of this chapter,
be considered a utility-scale wind energy conversion system.
The level which is equaled or exceeded a stated percentage
of time. An L10 of "X" dBA indicates that in any hour of the day,
"X" dBA can be equaled or exceeded only 10% of the time, or for six
minutes. The measurement of the sound-pressure level shall be done
according to the International Standard for Acoustic Noise Measurement
Techniques for Wind Generators (IEC 61400-11), or other accepted procedures.
"WECS operational sound-pressure level restrictions" shall mean the
cumulative existing ambient sound-pressure level (as defined herein)
plus the sound generated by the WECS.
Any wind energy conversion system or wind measurement tower,
associated equipment, and structures.
A machine that converts the kinetic energy in the wind into
a usable form (commonly known as a "wind turbine" or "windmill").
A tower used for the measurement of meteorological data such
as temperature, wind speed, and wind direction.
A.
No wind energy conversion facility shall be constructed, reconstructed,
modified, or operated in the Town of Victor except pursuant to a special
use permit approved pursuant to this chapter and issuance of a building
permit.
B.
Utility-scale WECS are not permitted. No WECS other than a private
WECS, as defined herein, shall be constructed, reconstructed, modified,
operated or replaced in the Town of Victor.
C.
A different existing use or an existing structure on the same site
shall not preclude the installation of a private WECS, met tower or
a part of such facility on a site. Private WECS and met towers constructed
and installed in accordance with this chapter shall not be deemed
expansions of a nonconforming use or structure.
D.
The Town Planning Board acknowledges that prior to construction of
a WECS, a wind measurement tower is commonly erected to measure the
wind speeds, and this data is used to determine the feasibility of
using a particular site to generate power. Installation of wind measurement
towers, also known as anemometer ("met") towers, shall be permitted
as a special use pursuant to the requirements of this chapter.
E.
Special use permits for wind energy conversion facilities and wind
measurement towers shall be issued by the Town Planning Board.
F.
Special use permits for wind measurement towers may be issued by
the Town Planning Board for a period of up to two years. Permits may
be renewed if the facility is in compliance with the conditions of
the special use permit.
G.
No additions or modifications, of any nature, to the WECS or met
tower shall be permitted without application to and approval of the
Planning Board. In order to gain such approval, the applicant shall
be required to show the following:
(1)
That the proposed addition or modification is necessary and appropriate
for the full implementation and usage of the WECS or met tower.
(2)
That the WECS or met tower can structurally accommodate the additions
or modifications. Plans shall be provided which are stamped and certified
by a professional engineer licensed in the State of New York.
(3)
That any additions or modifications will not interfere with existing
or proposed telecommunications, radio or microwave signals.
(4)
That the visual effects of any additional equipment will not unduly
or unreasonably interfere with or restrict the visual aesthetics of
the surrounding neighborhood.
(5)
That the health, safety or general welfare of the public will not
be otherwise impaired.
H.
Applications for special use permits for wind measurement towers
subject to this chapter may be jointly submitted with the WECS.
I.
Nonresidential WECS shall be permitted:
J.
Nonresidential WECS, for agricultural use, shall be permitted:
L.
Met towers shall be permitted:
(1)
In Commercial, Light Industrial, Commercial Light Industrial, and
Planned Development Districts, subject to the limitations of any applicable
overlay districts; and
(2)
In R-1, R-2, R-3, Manufactured Home, Multiple Dwelling, and Senior
Citizen Housing Districts, subject to the limitations of any applicable
overlay districts; and
(3)
With a special use permit from the Planning Board.
M.
Other wind energy facility structures and improvements shall comply
with the underlying zoning district regulations.
N.
Roof-mounted wind turbines are permitted as private WECS, provided
they are in compliance with the requirements for either a residential
or nonresidential WECS.
O.
The applicant shall pay all costs associated with the Town of Victor's
engineering and legal costs of reviewing and processing all applications.
This may include the cost of the review required by SEQRA or modification
to the current Town of Victor Comprehensive Plan. The applicant shall
submit a deposit fee with the application in the amount specified
in § 27-8Y of the Town Code for a special use permit and
site plan (accessory structure) approval. If the engineering and legal
review fees exceed the amount submitted at the time of application,
the applicant will be billed monthly and will receive a copy of the
Town Engineer's invoice. The Town of Victor may require the applicant
to enter into an escrow agreement to cover the engineering and legal
costs of reviewing and processing all applications.
P.
The Town may employ an independent engineering consultant to review
construction plans and/or an inspection service to monitor construction/erection
activities. The applicant shall assume all costs of this service.
Q.
Prior to the issuance of a building permit, the Town Planning Board may, within the confines of the law, negotiate a payment in lieu of taxes and/or a host community agreement with any applicant. Refer to § 206-19, Tax exemption.
R.
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
facility.
A.
Nonresidential WECS will not be deemed residential additions or accessory structures for purposes of exemption from site plan review. Rather, nonresidential WECS will be fully subject to site plan review as set forth in the Victor Town Code at Chapter 211.
B.
An application for a special use permit for a WECS shall include
the following:
(1)
Name, address, and telephone number of the applicant. If the applicant
will be represented by an agent, the name, address, and telephone
number of the agent as well as an original signature of the applicant
authorizing the agent to represent the applicant.
(2)
Name and address of the property owner. If the property owner is
not the applicant, the application shall include a letter or other
written permission signed by the property owner confirming that the
property owner is familiar with the proposed applications and authorizing
the submission of the application.
(3)
Address, or other property identification, of each proposed tower
location, including Tax Map section, block, and lot number.
(4)
The names, property addresses, mailing address and Tax Map numbers
of all owners of land within 500 feet of the boundary of the property
upon which the property is proposed shall be provided to the Planning
Board for review and record retention.
(5)
A comprehensive description of the project, including details and
dimensions of all proposed equipment, accessory structures, access
roads and driveways.
(6)
The manufacturers' product information, including make, model,
picture, and equipment specifications including noise decibel data,
electrical characteristics of equipment, maximum rated capacity, utilities
required, and operating manuals, and material safety data sheets for
the type and quantity of construction and operation materials including,
but not limited to, all lubricants and coolants.
(7)
If required, a scaled site plan, which shall include all of the information
listed below. The Planning Board may require additional information
if necessary to complete its review. The plan shall be drawn in sufficient
detail (maximum scale of one inch equals 400 feet) to clearly describe
the following:
(a)
Title block showing the drawing title, date of preparation,
name and address of applicant, name and address of the person or firm
preparing the drawing.
(b)
Property lines and physical dimensions of the site.
(c)
Existing watercourses and bodies of water, including any state
and federal wetlands.
(d)
Existing residential and nonresidential structures and driveways
located on site.
(e)
Location of the proposed tower, equipment, foundations, guy
points, substations, accessory structures, fences, staging areas,
access roads, electrical lines, and any other ancillary facilities.
(f)
Location of all existing and proposed utility lines on the site
or within a radius of one times the total height of the WECS plus
25 feet.
(g)
Construction plan detailing access routes, on-site disturbance
of landscape, trees, soils and restoration thereof at completion of
facility erection period.
(h)
Location, type, and dimensions of permanent and temporary (construction)
stormwater and erosion control measures.
(i)
A copy of a stormwater pollution prevention plan (SWPPP), if required to satisfy New York State Department of Environmental Conservation permitting requirements. Refer to the requirements of § 211-52, Stormwater pollution prevention plans.
(j)
The zoning designation of the subject and adjacent properties
as set forth on the official Town Zoning Map.
(8)
A vertical drawing of the WECS showing total height, turbine dimensions,
tower and turbine colors, ladders, distance between ground and lowest
point of any blade, location of climbing pegs, and access doors. One
drawing may be submitted for each WECS of the same type and total
height.
(9)
A line drawing of the electrical components of the system in sufficient
detail to allow for a determination by the Town Engineer that the
manner of installation conforms to the Electric Code. Such review
by the Town Engineer shall be at the applicant's expense.
(10)
A lighting plan showing any proposed site lighting. Stroboscopic lighting to satisfy Federal Aviation Administration (FAA) requirements is prohibited. Refer to § 206-9 for restrictions.
(11)
Sufficient information demonstrating that the system will be
used to reduce on-site consumption of electricity. Such information
shall include, as a minimum, a description of how the WECS will be
connected to the applicant parcel's electrical or mechanical
system. The system shall not produce significantly more energy than
will be used on site annually.
(12)
Written evidence that the electric utility service provider
that serves the proposed site has been informed of the applicant's
intent to install an interconnected customer-owned electricity generator,
unless the applicant does not plan, and so states in the application,
to connect the system to the electricity grid.
(13)
Tower design and foundation information sufficient to demonstrate
compliance with structural loading requirements such as wind, seismic,
and icing. Unless waived by the Planning Board, the information shall
be stamped or certified by a professional engineer licensed in the
State of New York.
(14)
Unless waived by the Planning Board, documentation shall be
provided from a New-York-State-licensed professional engineer or the
turbine manufacturer of potential ice throw and blade throw distances,
damage and impacts. The basis of calculation and all assumptions shall
be disclosed.
(15)
Shadow flicker. Where a habitable structure (receptor) is located
within 10 rotor diameters of a WECS, the applicant shall include in
the application an analysis and report, by a professional engineer
licensed in the State of New York, on potential shadow flicker. The
report shall identify receptors where shadow flicker may be caused
by the WECS and the expected times and durations of the flicker at
these receptors. The report shall describe measures that shall be
taken to eliminate or mitigate the problems, including reduction of
WECS operations during shadow flicker periods.
(16)
Noise analysis. Unless manufacturer data is provided that demonstrates sound levels produced by the WECS are anticipated not to exceed 35 dBA at the property line of the site, the applicant shall provide with the application a noise analysis and report, by a professional engineer licensed in the State of New York, documenting the potential noise levels associated with the proposed WECS. The report shall document noise levels at the site property lines and habitable structures (receptors) not on the site within 1,500 feet of the turbine. The noise analysis shall provide preexisting ambient noise levels and combined ambient and turbine sound levels and shall include low-frequency noise. Refer to § 206-17 for testing in response to complaints.
(17)
Visual impact. Unless waived by the Planning Board, applications
shall include visual impact documentation of the proposed WECS as
installed. This documentation shall include scaled color photographic
simulations demonstrating the visual appearance of the WECS from strategic
vantage points (for example, adjacent habitable buildings). Unless
additional simulations are requested by the Planning Board, a minimum
of four vantage points (one from each quadrant of a circle around
the WECS) shall be provided. Color photographs of the proposed site,
from each location, accurately depicting the existing conditions shall
also be included for comparison. The documentation shall also indicate
the color treatment of the system's components and any visual
screening incorporated into the project that is intended to lessen
the system's visual prominence. The photograph simulations may
be produced by overlying photographs from the proposed vantage points
with digital, scaled images of the WECS using commonly available computer
software. For residential WECS, in lieu of photograph simulations
showing the turbine superimposed on a photograph, the applicant may
provide a simple balloon study in addition to manufacturer photographs
and other WECS information. This balloon study shall consist of photographs
of the site from the required vantage points, with a balloon(s) tethered
at the location of the proposed WECS and suspended aloft at the total
height of the WECS above the ground line. Such balloon study photographs
shall be taken on a calm day with minimal wind, such that the balloons
approximate the maximum elevation and location of the WECS and blade
tip elevation.
(18)
Telecommunications. The applicant shall include information
in the application demonstrating due diligence to investigate that
the WECS will not interfere with cellular telephone, television, radio,
microwave, satellite, and other forms of telecommunications in the
area. The information may include WECS manufacturer material specifications
that demonstrate the WECS construction materials will not interfere
with specific types of telecommunications. Unless waived by the Planning
Board, the applicant shall provide information documenting any directional
telecommunications signal antennas on adjacent parcels, their distance,
and receiving or transmitting direction. If the Planning Board deems
that a potential conflict may exist, additional study and documentation
may be required of the applicant at the applicant's expense.
(19)
Other information: such additional information as may be reasonably
requested by the Town Planning Board or Town Engineer.
(20)
A decommissioning plan, which shall include the anticipated life of the WECS; the estimated decommissioning costs in current dollars; how said estimate was determined; any decommissioning bond required per § 206-9DD, and the method of ensuring that funds will be available for decommissioning and restoration; and the manner in which the WECS will be decommissioned and the site restored, which shall include any necessary widening of roads, removal of all structures and debris, removal of all access roads, restoration of the soil, and restoration of vegetation (consistent and compatible with surrounding vegetation). The decommissioning costs shall not be offset by salvage values.
(21)
A statement, signed under penalty of perjury, that the information
contained in the application is true and accurate.
(22)
The completed Part 1 of the full EAF.
The following standards shall apply to all WECS, met towers
and related infrastructure, unless specifically waived by the Town
Planning Board as part of a permit:
A.
Use of nighttime and overcast daytime condition stroboscopic lighting
to satisfy tower facility obstruction lighting requirements of the
FAA is prohibited.
(1)
No wind turbine tower plus its rotor radius (total height) may exceed
the minimum height requirement of the FAA (200 feet) or any obstruction
standard contained in 14 CFR 77, requiring obstruction lighting. This
limitation shall also apply to WECS with a power output that serves
an agricultural building.
B.
The permissible number of private tower WECS or roof-mounted turbines
per lot shall be determined on an individual basis at the discretion
of the Planning Board based on review of potential impacts, including
aesthetic impact, shadow flicker and noise.
C.
No experimental, home-built or prototype wind turbines shall be allowed
without documentation from a licensed professional engineer estimating
the probable blade or ice throw distance in the event of failure,
a submittal of the complete design specifications and calculations
and an acceptance by the Town Planning Board of setbacks which may
exceed the minimums established elsewhere in the Code.
D.
All WECS and met tower structures shall be of tubular monopole, lattice,
or other appropriate industry design constructed to be in compliance
with pertinent provisions of applicable design and operation codes.
E.
WECS components shall be painted a nonreflective, unobtrusive color
that blends the system and its components into the surrounding landscape
to the greatest extent possible and incorporates nonreflective surfaces
to minimize any visual disruption.
F.
All WECS on-site electrical wires associated with the system shall
be installed underground except for tie-ins to a public utility company
and public utility company transmission poles, towers, and lines.
This standard may be modified by the Town Planning Board if the project
terrain is determined to be unsuitable due to reasons of excessive
grading, environmental impacts, or similar factors.
G.
No television, radio, or other communications antennas may be affixed
or otherwise made part of any WECS.
H.
No advertising signs are allowed on any part of the wind energy facility,
including fencing and support structures. No lettering, company insignia,
advertising, or graphics shall be on any part of the tower, hub, or
blades.
I.
Appropriate warning signs shall be posted. At least one sign shall
be posted at the base of the tower warning of rotating machinery,
electrical shock or high voltage. A sign shall be posted on the parcel
road frontage and on the entry area of the fence around each tower
or group of towers and any building (or on the tower or building if
there is no fence) containing emergency contact information, including
a local telephone number for emergency shutdown of the WECS with twenty-four-hour,
seven-day-a-week coverage. The Town Planning Board may require additional
signs based on safety needs. The means of posting this information
shall comply with applicable provisions of Town law regarding signs.
J.
Lighting. No tower shall be lit. Minimum lighting for ground level
facilities shall be allowed only as approved on the site plan. Lighting
shall be designed to minimize light pollution, including the use of
motion detectors, light hoods, low-glare fixtures, and directing lights
at the ground.
K.
The WECS or met tower shall be designed and located in such a manner
as to minimize adverse visual impacts from public viewing areas (e.g.,
public parks, roads, and trails). To the greatest extent feasible,
a WECS or met tower shall:
(1)
Minimize projection above the top of ridgelines.
(2)
If visible from public viewing areas, use natural landforms and existing
vegetation for screening.
(3)
Be screened to the maximum extent feasible by natural vegetation
or other means to minimize potentially significant adverse visual
impacts on neighboring residential areas.
L.
No WECS shall be installed in any location or at any height where
its proximity with existing fixed broadcast, retransmission, or reception
antenna for radio, television, or wireless phone or other personal
communications systems would produce interference with signal transmission
or reception. No WECS shall be installed in any location along the
major axis of an existing microwave communications link where its
operation is likely to produce interference in the link's operation.
If it is determined that a WECS is causing interference, the operator
shall take the necessary corrective action to eliminate this interference,
including relocation or removal of the facilities or resolution of
the issue with the impacted parties. Failure to remedy interference
is grounds for revocation of the special use permit for the specific
WECS causing the interference.
M.
Towers shall be constructed to provide one of the following means
of access control, or other appropriate method of access:
N.
WECS and met towers shall be designed to prevent unauthorized external
access to electrical and mechanical components and shall have access
doors that are kept securely locked.
O.
The minimum distance between the ground and any part of the rotor
or blade system shall be 20 feet, unless protective fencing is installed.
P.
Roof-mounted turbines shall have a maximum total height no greater
than 10 feet above the roof or parapet to which it is mounted. If
mounted to the roof, and the parapet surrounds the roof on all sides,
the turbine shall not project more than 10 feet above the lowest elevation
of the surrounding parapet.
Q.
Anchor points for any guy wires for a tower shall be located within
the property that the system is located on and not on or across any
aboveground electric transmission or distribution lines. The point
of attachment for the guy wires shall be sheathed in bright orange
or yellow covering from three feet to eight feet above the ground
or a fence as approved by the Planning Board.
R.
Construction of on-site access roadways shall be minimized. Temporary
access roads utilized for initial installation shall be regraded and
revegetated to the preexisting natural condition after completion
of installation.
S.
All tower structures shall be designed and constructed to be in compliance
with pertinent provisions of the applicable design and operational
codes.
T.
All WECS shall be equipped with manual and automatic overspeed controls
to limit the rotational speed of the rotor blade so it does not exceed
the design limits of the WECS. The conformance of rotor and overspeed
control design and fabrication with good engineering practices shall
be certified by the manufacturer.
U.
All solid waste, hazardous waste, and construction debris shall be
removed from the site and managed in a manner consistent with all
appropriate rules and regulations.
V.
WECS shall be designed to minimize the impacts of land clearing and
the loss of open space areas. Land protected by conservation easements
shall be avoided. The use of previously developed areas will be given
priority wherever possible.
W.
During construction, topsoil shall be stockpiled. After construction
is complete, the site shall be restored by grading the soil, replacing
the topsoil, and restoring compatible vegetation or ground cover to
the site as approved by the Planning Board.
X.
WECS shall be located in a manner that minimizes significant negative
impacts on rare animal species in the vicinity, particularly bird
and bat species.
Y.
WECS and related infrastructure shall be located in a manner consistent
with all applicable state and federal wetlands laws and regulations.
Z.
Stormwater runoff and erosion control shall be managed in a manner
consistent with all applicable local, state, and federal laws and
regulations.
AA.
Construction of WECS shall be limited to Monday through Friday, between
the hours of 7:00 a.m. to 7:00 p.m., and Saturday, 7:00 a.m. to 6:00
p.m. No construction shall occur on holidays (observed Memorial Day,
July 4, Labor Day, Thanksgiving, and Christmas).
BB.
The applicant is responsible for remediation of damaged roads during
construction and upon completion of the installation or maintenance
of a wind energy conversion facility or met tower. Roads shall be
repaired to preconstruction condition. If deemed necessary by the
Planning Board, a public improvement bond shall be posted prior to
the issuance of any special use permit, in an amount determined by
the Town Engineer as sufficient to compensate the Town of Victor for
any damage to local roads and infrastructure.
CC.
If the applicant uses any seasonal use highway in the off season,
he or she shall be solely responsible for the maintenance of said
highway, including, but not limited to, snow plowing. No act of maintenance
on a seasonal-use highway by an applicant shall be considered as Town
maintenance of that highway for purposes of determining the seasonal-use
status of the highway.
DD.
Decommissioning bond or fund. The issuance of a special use permit
shall be conditioned upon the submission to the Code Enforcement Officer
of a written estimate from an approved company engaged in the installation
and removal of WECS, of the cost of dismantling and removing the WECS
and any attached structures or facilities or wind measurement tower.
The costs shall not be offset by any salvage value. If the estimated
cost exceeds $250,000, the Planning Board may require that the applicant
maintain an irrevocable letter of credit, or other security in a form
acceptable to the Town Attorney, in an amount not less than 125% of
said estimated cost, which letter of credit or other security shall
provide that said funds shall be made available to the Town for the
removal of such facilities and any attached structures or facilities
upon the failure of the holder of the special use permit to comply
with the provisions of this chapter. The letter of credit shall be
approved by Town Board resolution. The amount of the security shall
be adjusted every five years, based upon an updated estimate of the
removal costs by an approved company engaged in the installation and
removal of WECS submitted to the Code Enforcement Officer. For projects
the removal cost of which is valued at below $250,000, removal shall
be performed at the owner's expense, or, if the Town removes
it, a lien will be placed on the property for that amount.
EE.
Prior to beginning construction, the applicant shall stake out the
locations of the proposed facilities for review and approval by the
Town Code Enforcement Officer. Construction shall not commence until
such approval from the Town Code Enforcement Officer is received in
writing.
FF.
Accurate maps of the as-built underground WECS facilities shall be
filed with the Town and with Dig Safely New York (1-800-962-7962)
or its successor.
GG.
All WECS and met towers shall be maintained in good condition and
in accordance with all requirements of this chapter.
B.
Each WECS shall be set back, as measured from the center of the WECS,
a minimum distance of:
(1)
One hundred feet from state- or federal-identified wetlands.
(2)
One times the total height plus 25 feet from the nearest public road.
(3)
One times the total height plus 25 feet from the nearest site boundary
property line.
(4)
One and five-tenths times the total height from the property line
of any parcel adjacent to the site with no habitable buildings.
(5)
Two times the total height from the nearest off-site habitable building
existing at the time of application, measured from the exterior of
such building.
(6)
Three times the total height from any school, place of worship, hospital,
or public building, including those on the site.
C.
Guy anchor points shall not be located closer than 10 feet to a site
property line.
D.
Shadow flicker. Shadow flicker exposure shall be limited to a maximum
of 25 hours per year at off-site habitable buildings.
E.
Noise standards.
(1)
The statistical operational sound pressure level generated by a WECS
shall not result in a cumulative (ambient sound plus proposed turbine
noise) increase of more than six dBA over preexisting ambient sound
levels measured at the property line.
(2)
In the event audible noise due to WECS operations contains a steady pure tone, such as a whine, screech, or hum, the standards for audible noise set forth in Subsection E(1) of this section shall be reduced by five dBA. A pure tone is defined to exist if the one-third octave band sound-pressure level in the band, including the tone, exceeds the arithmetic average of the sound-pressure levels of the two contiguous one-third octave bands by five dBA for center frequencies of 500 Hz and above, by eight dBA for center frequencies between 160 Hz and 400 Hz, or by 15 dBA for center frequencies less than or equal to 125 Hz. Refer to § 206-17A for testing in response to complaints.
(3)
The ambient noise level shall be expressed in terms of the highest
whole number sound-pressure level in dBA. Where required, ambient
noise levels shall be measured at the property line.
(4)
Ambient noise level measurement techniques shall employ all practical
means of reducing the effect of wind generated noise at the microphone.
Ambient noise level measurements may be performed when wind velocities
at the proposed project site are sufficient to allow Wind Turbine
operation, provided that the wind velocity does not exceed 30 miles
per hour at the ambient noise measurement location.
A.
The owner of the site shall notify the Town, in writing, within 10
days of the discontinuance of the use of such facility.
B.
Wind energy conversion systems or met towers which are not used for
six successive months shall be deemed abandoned and shall be dismantled
and removed from the property at the expense of the property owner.
Removal and site restoration shall be completed within six months
of a determination of inoperability.
C.
Failure to abide by and faithfully comply with this chapter or with
any and all conditions that may be attached to the granting of any
building permit shall be a violation of this chapter and constitute
grounds for the revocation of the permit by the Town and use of any
decommissioning bond or fund to remove the WECS or met tower.
D.
Nonfunction or lack of operation may be proven by reports from the
Public Service Commission, the New York State Energy Research Development
Authority (NYSERDA), or local utility company(s). The applicant shall
make available to the Town Planning Board all reports to and from
these entities, if requested, necessary to prove the WECS is functioning,
which reports may be redacted or subject to a reasonable nondisclosure
agreement as necessary to protect proprietary information.
A.
Applicants may request a preapplication meeting with the Town Planning
Department Staff, Town Planning Board, and with any consultants retained
by the Town Planning Board for application review.
B.
The application and review process for the issuance of a special use permit shall comply with the provisions of Chapter 211 of the Victor Town Code governing special use permits.
C.
Upon receipt of the report of the recommendation of the County Planning
Board (where applicable), the holding of any public hearing, consideration
of the standards in this chapter, and the completion of the SEQRA
process, the Town Planning Board may issue a written decision setting
forth the reasons for approval, conditions of approval, or disapproval.
D.
If approved, the Town Planning Board will authorize Town staff to
issue a special use permit for each WECS upon satisfaction of all
conditions for said permit and authorize the Building Department to
issue a building permit upon compliance with the applicable design
and operational codes and satisfaction of all other criteria.
A.
Nonresidential WECS special use permit applications. In addition to the requirements of § 206-8, an application for a special use permit for a nonresidential WECS shall include the following:
(1)
The scaled site plan shall be prepared by a licensed professional
engineer, licensed land surveyor or landscape architect in the State
of New York.
(a)
The title block shall include the signature and seal of a licensed
professional engineer, land surveyor or landscape architect.
(c)
Topography by five-foot contours, maximum.
(d)
Location and size of structures 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.
(2)
Landscaping plan depicting vegetation describing the area to be cleared
and any specimens proposed to be added, identified by species and
size of specimen at installation and their locations.
B.
Nonresidential WECS standards for special use permit. In addition to the requirements of § 206-9, the following standards shall apply to all nonresidential WECS and related infrastructure, unless specifically waived by the Town Planning Board as part of a permit:
(1)
If required for the WECS, substations shall be screened from public
view to the extent possible.
(2)
Any construction or ground disturbance involving agricultural land
shall be done according to the New York State Department of Agriculture
and Markets publication titled "Guidelines for Agricultural Mitigation
for Wind Power Projects."
C.
Nonresidential WECS setbacks for special use permits. In addition to the requirements of § 206-11, nonresidential WECS Setbacks shall meet the following requirements:
D.
Nonresidential WECS abatement. In addition to the requirements of § 206-11, nonresidential WECS shall comply with the following requirements:
(1)
Removal of the system from the property shall include at least the
entire aboveground structure, including transmission equipment and
fencing. Removal of nonresidential WECS in agricultural fields shall
comply with New York State Department of Agriculture and Markets guidelines.
B.
Residential WECS standards for special use permits. In addition to the requirements of § 206-9, applications for residential WECS special use permits shall include:
A.
Wind measurement tower special use permit applications. In addition to the requirements of § 206-8, met tower special use permit applications shall include the following requirements:
B.
Wind measurement tower standards for special use permits. In addition to the requirements of § 206-9, met tower standards shall include the following requirements:
(1)
Only one wind measurement tower per legal lot shall be allowed, unless
there are multiple applicants, in which their joint lots shall be
treated as one lot for purposes of this chapter.
(2)
A sign shall be posted on the entry area of the fence around each tower or group of towers and any building (or on the tower or building if there is no fence), containing emergency contact information, including a local telephone number with twenty-four-hour, seven-day-a-week coverage. The Town Planning Board may require additional signs based on safety needs. Applicable provisions of the Town Code regarding signs, including prohibition, shall be applied to warning signs as required under § 206-9.
C.
Wind measurement tower setbacks for special use permits. In addition to the requirements of § 206-10, met tower setbacks shall include the following requirements:
D.
Wind measurement tower abatement. In addition to the requirements of § 206-11, met tower abatement shall include the following requirements:
(1)
Removal of the system shall include at least the entire aboveground
structure, including fencing, from the property. Removal of met towers
in agricultural fields shall comply with New York State Department
of Agriculture and Markets guidelines.
Refer to the requirements of § 211-8 of the Town of Victor Code.
A.
Noise and shadow flicker complaints. Noise and shadow flicker testing
or monitoring may be required to verify complaints. Such work shall
be performed by a qualified, independent third party at the request
of the Town Planning Board in response to complaints received by the
Building Department. The scope of the testing shall be to demonstrate
compliance with the terms and conditions of the special use permit
and shall also include an evaluation of any complaints received by
the Town. The applicant shall have 30 days after written notice from
the Code Enforcement Officer to cure any deficiency verified by testing.
An extension of the thirty-day period may be considered by the Code
Enforcement Officer, but the total period may not exceed 60 days.
Such testing shall be at the expense of the WECS owner. However, testing
or monitoring to verify complaints is subject to one investigation
per complainant property annually and a maximum annual dollar amount
spent on testing by the owner equal to 5% of the value of the WECS.
The Town Code Enforcement Officer shall determine the value of the
WECS. The Town Planning Board has the discretion to deem complaints
frivolous, duplicative or otherwise unwarranted and hold that testing
is not, therefore, required. Notwithstanding the aforementioned, where
the owner is not required to bear the expense of testing under the
conditions set forth herein, the Town shall have the authority to
test at the Town's own expense, if it deems so appropriate, with
the approval of the Town Board. If the Town Board shall find the WECS
to be in violation of this chapter, it may charge back to the owner
the costs of any testing expenses incurred by the Town.
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 violate a permit condition, the owner or
operator shall have 30 days after written notice from the Code Enforcement
Officer to cure the deficiency. An extension of the thirty-day period
may be considered by the Code Enforcement Officer, but the total period
may not exceed 60 days.
C.
Notwithstanding any other abatement provision under this chapter,
if the WECS is not repaired or made operational or brought into permit
compliance, the Town Board may order remedial action within a specified
time frame or order revocation of the special use permit for the WECS
and require the removal of the WECS within 90 days. Where removal
is ordered, the owner shall have the opportunity to be heard at a
public hearing in front of the Town Board. If, after the public hearing,
the Town Board finds it is in the public interest to remove the WECS,
it shall order as much and require removal. If the WECS is not removed,
at the direction of the Town Board, the Code Enforcement Officer shall
have the right to use any security posted as part of the decommission
plan to remove the WECS. If no security is required to be posted and
if the WECS is not removed, at the direction of the Town Board, the
Code Enforcement Officer shall have the right to remove the WECS and
bill the owner for said costs.
D.
Any costs incurred by the Town that exceeds the amount of any financial
surety or are not covered by said surety shall be the complete and
sole responsibility of the owner. If the owner is insolvent and such
costs cannot be practicably collected from said owner, then such costs
shall become a lien upon the property upon which the costs were incurred
and said lien shall thereafter be assessed on the next succeeding
year's tax bill for such parcel and collected in accordance with
normal tax foreclosure proceedings if such tax bill remains unpaid
thereafter.
A.
Fees. Refer to the Town of Victor Code, §§ 27-8A and
Y (engineering review, special permit, and/or site plan review) for
applicable fees.
B.
Building permits.
(1)
The applicant shall, prior to the receipt of a building permit, demonstrate
that the proposed facility meets the system reliability requirements
of the New York Independent System Operator or provide proof that
it has executed an interconnection agreement with the New York independent
system operator and/or the applicable transmission owner.
(2)
The applicant will provide copies of all necessary state and county
DOT permits prior to receiving a building permit.
The Town may, upon the adoption of a local law by the Town Board,
exercise its right to opt out of the tax exemption provisions of Real
Property Tax Law § 487, pursuant to Subsection 8 of that
law.
The provisions within this chapter shall be enforced as described herein. Additionally, the provisions herein may be enforced in accordance with § 83-15 or 211-11 of the Victor Town Code. To the extent those provisions are inconsistent with the enforcement provisions identified within this chapter, the enforcement provisions herein shall govern.
