[Added 5-18-2016 by L.L.
No. 3-2016]
The Town Board of the Town of Lockport makes the following findings:
A.
The Town Board of the Town of Lockport finds a growing need to properly
site noncommercial wind energy conversion systems. Prior to the adoption
of this article, no specific procedures existed to address the siting
of noncommercial wind energy conversion systems. Accordingly, the
Town Board finds that the promulgation of this article is necessary
to direct the location, construction and maintenance of these systems.
B.
Furthermore, the Town Board finds that the small-Town atmosphere
and character of the Town of Lockport requires extensive regulation
of noncommercial wind energy conversion systems, and this amendment
is necessary to direct the location of noncommercial wind energy conversion
systems within the boundaries of the Town of Lockport to minimize
the number of such towers, to protect residential, business areas
and other land uses from potential adverse impacts of noncommercial
wind energy conversion systems, to preserve the overall beauty, nature
and character of the Town of Lockport and to protect the health, safety
and general welfare of the citizens of the Town of Lockport.
C.
Noncommercial wind energy conversion systems need to be regulated
for removal when no longer utilized.
The following definitions shall apply to this chapter:
The person or entity filing an application and seeking a
permit under this article; the owner of a noncommercial WECS or a
proposed project; the operator of a noncommercial WECS or proposed
project; any person acting on behalf of an applicant, noncommercial
WECS project or proposed noncommercial WECS. Whenever the term "applicant"
or "owner" or "operator" are used in this section, said term shall
include any person acting as an applicant, owner or operator.
A wind energy conversion system, which may be referred to
and/or abbreviated as "WECS" throughout this article, consisting of
one wind turbine, one tower, and associated control or conversion
electronics, with a total maximum height of not more than 199 feet,
as measured from the ground elevation to the top of the tip of the
blade in the vertical position, and is intended to primarily supply
electrical power for the use on the subject property.
[Amended 5-3-2023 by L.L. No. 3-2023]
The New York State Environmental Quality Review Act, as amended
from time to time.[1]
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 and other mechanical devices are
mounted.
The height above grade of the uppermost fixed portion of
the tower, excluding the length of any axial rotating turbine blades.
Any piece of electrical generating equipment that converts
wind energy into electrical energy through the use of airfoils, rotating
turbine blades, or similar devices to capture the wind.
[1]
Editor's Note: See 6 NYCRR Part 617.
Subject to the provisions of this article, noncommercial wind
energy conversion systems shall be allowed only in the Agricultural
District (AG) Use District, Agricultural Residential (AR) Use District,
or Industrial (IN) Use District. Any inconsistent provisions of the
Zoning Law which purport to or may be interpreted to allow noncommercial
energy conversion systems in other districts are hereby superseded.
A.
The placement, construction, and major modification of all noncommercial
wind energy conversion systems within the boundaries of the Town of
Lockport shall be permitted only by special permit by the Town of
Lockport Planning Board in use districts where allowed in accordance
with the criteria established in this article, after SEQRA review
with the Town of Lockport Planning Board designated as lead agency,
upon concurrent site plan approval issued by the Town of Lockport
Planning Board, and upon issuance of a building permit, and shall
be subject to all provisions of this article.
B.
All noncommercial wind energy conversion systems existing on the
effective date of this article shall be allowed to continue usage
as they presently exist. Routine maintenance (including replacement
with a new tower of like construction and height) shall be permitted
on such existing towers. New construction other than routine maintenance
shall comply with the requirements of this chapter.
C.
No noncommercial wind energy conversion system shall hereafter be
used, erected, moved, reconstructed, changed or altered except in
conformity with these regulations.
D.
Any applications (including variance applications) pending for noncommercial
energy wind conversion systems on the effective date of this article
shall be subject to the provisions of this article.
E.
This article shall take precedence over any inconsistent provisions
of the Zoning Law of the Town of Lockport.
Applications under this article shall be made as follows: Applicants
for a special permit to place, construct, and make a major modification
to a noncommercial wind energy conversion system within the boundaries
of the Town of Lockport shall submit 12 sets of the following information
to the Building Inspector, who shall first present it to a professional
engineer or consultant for an initial review and then onto the Planning
Board for its review and recommendation. The Planning Board may make
such additional referrals as it deems appropriate. No such application
shall be deemed filed until any required application fee has been
paid. The following information shall be contained in the application:
A.
A completed State Environmental Quality Review Act (SEQRA) short
form environmental assessment form (EAF), unless a long form which
includes the visual EAF addendum is required by the Town's professional
engineer or consultant or the Town of Lockport Planning Board, with
the Town of Lockport Planning Board designated as lead agency for
the SEQRA process.
B.
Necessary permit information:
(1)
Name and address of the applicant;
(2)
Evidence that the applicant is the owner of the property involved
or has the written permission of the owner to make such an application;
(3)
Specific information on the type, size, height, rotor material,
rated power output, performance, safety, and noise characteristics
of all noncommercial WECS components;
(4)
Photographs or detailed drawings of each noncommercial WECS
component, including the tower and foundation;
(5)
Utility interconnection data and a copy of a written notification
to the utility of the proposed interconnection;
(6)
An acoustic report shall be furnished for the specific wind
turbine technology which provides sound curve based on production
levels for the overall dB(A) measurement of the wind turbine at different
wind speeds based on field testing. This should be done in accordance
with the Small Wind Certification Council (SWCC) which has standardized
North American reporting on turbine energy and sound performance;
(7)
A report from the turbine manufacturer stating the wind speed
and conditions that the wind turbine is designed to withstand (including
all assumptions);
(8)
A copy of written notification to the Federal Aviation Administration
(FAA) and to Mercy Flight, and any correspondence from said entities;
(9)
If a proposed noncommercial WECS is located within two miles
of any microwave communications link, then the application shall include
a copy of a written notification to the operator of the link; and
(10)
If a proposed noncommercial WECS is located within a one-hundred-year
floodplain area, then the application shall include any such flood
hazard areas shown on the floodplain maps with 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.
C.
A site plan drawn in sufficient detail to show the following:
(1)
Location of the tower(s) on the lot and the tower height, including
blades, wind turbine diameter, and ground clearance;
(2)
Dimensional representation of the various structural components
of the tower construction, including the base and footing;
(3)
Property lot lines and the location and dimensions of all existing
structures and uses on the lot within 500 feet of the noncommercial
WECS;
(4)
Proposed plan for restoration of the site after construction
according to New York State Department of Environmental Conservation
and Town of Lockport guidelines and requirements;
(5)
Certification by a registered New York State professional engineer
that the tower's design is sufficient to withstand wind loading requirements
for structures as established by the New York State Uniform Construction
Code; and
(6)
Wind characteristics and dominant wind direction from which
50% or more of the energy contained in the wind flows.
D.
Any such additional information as may be required by the Town's
professional engineer or consultant, Town of Lockport Planning Board,
Town Attorney, Building Inspector or other Town entity.
Special permits issued for a noncommercial WECS shall meet the
following conditions:
A.
Minimum lot area. The minimum lot area needed for one tower and one
wind turbine shall be 10 acres in all zoning use districts except
for the Industrial Use District (IN). The minimum lot area needed
for one tower and one wind turbine shall be five acres in the Industrial
Use District (IN). (Two wind towers and two wind turbines need a minimum
lot area of at least 20 acres in all zoning use districts except for
the IN District, where a minimum lot area of at least 10 acres would
be required).
[Amended 5-3-2023 by L.L. No. 3-2023]
B.
Setbacks. Any noncommercial WECS shall adhere to the following setbacks:
(1)
From any Residential (R-1 or R-2), Business (B-1 or B-2), Manufactured
Home Park (MHP) or Planned Unit Development (PUD) Use District: a
minimum 750 feet from all property lot lines bordering a Residential
(R-1, R-2 or ADR), Business (B-1 or B-2), Manufactured Home Park (MHP)
or Planned Unit Development (PUD) Use District.
(2)
From any property lot lines: when the noncommercial WECS is
located in any zoning use district, except the Industrial Use District
(IN), a minimum of 1.5 times the total height of the noncommercial
WECS from any property lot line; when the noncommercial WECS is located
in the Industrial Use District (IN), a minimum of 1.1 times the total
height of the noncommercial WECS from any property lot line.
[Amended 5-3-2023 by L.L. No. 3-2023]
(4)
From public roads and railroads:
(a)
When the noncommercial WECS is located in any zoning use district,
except the Industrial Use District (IN), a minimum of 1.5 times the
total height of the noncommercial WECS from any public road or railroad
(measured from the road right-of-way or property line); when the noncommercial
WECS is located in the Industrial Use District (IN), a minimum of
1.1 times the total height of the noncommercial WECS from any public
road or railroad (measured from the road right-of-way or property
line); and
[Amended 5-3-2023 by L.L. No. 3-2023]
(b)
Where the lot line abuts a public right-of-way, the setbacks
specified above shall be measured from such right-of-way line.
(5)
From schools, public parks: a minimum of 750 feet from all property
lot lines bordering a school or public park.
(6)
From the edge of the Niagara Escarpment: a minimum of 250 feet
from the edge of the Niagara Escarpment.
(7)
From aboveground power lines greater than 12 kilovolts:
[Amended 5-3-2023 by L.L. No. 3-2023]
(a)
When the noncommercial WECS is located in any zoning use district,
except the Industrial Use District (IN), a minimum of 1.5 times the
total height of the noncommercial WECS from any aboveground power
line greater than 12 kilovolts.
(b)
When the noncommercial WECS is located in the Industrial Use District
(IN), a minimum of 1.1 times the total height of the noncommercial
WECS from any aboveground power line greater than 12 kilovolts.
(8)
Notwithstanding the setback provisions set forth in these subsections,
such setbacks from property lines do not apply if the application
is accompanied by a legally enforceable agreement that runs with the
property for a period of 25 years or the life of the special permit,
whichever is longer, that the adjacent landowner(s) agrees to the
elimination of the required setbacks. These setback requirements can
only be varied through this agreement process with adjoining landowners
and not through a variance with the Zoning Board of Appeals. Any agreement
to the elimination of such property line setbacks shall not constitute
the reduction or elimination of required setbacks from structures,
as previously identified, and such setbacks from structures, for safety
reasons, shall not be reduced or eliminated.
C.
Maximum overall height. When the noncommercial WECS is located in
any zoning use district, except the Industrial Use District (IN),
a maximum overall height of any noncommercial WECS shall be 165 feet.
When the noncommercial WECS is located in the Industrial Use District
(IN), a maximum overall height of any noncommercial WECS shall be
199 feet. Height of the noncommercial WECS shall be measured from
the ground elevation to the top of the tip of the blade in the vertical
position.
[Amended 5-3-2023 by L.L. No. 3-2023]
D.
Number of towers and wind turbines allowed per lot. There shall only
be allowed a maximum of two wind towers and two wind turbines per
lot.
E.
The power produced from a noncommercial WECS shall only be used for
on-site consumption (except for net metering purposes).
F.
Rear yard requirement. When the noncommercial WECS is located in
any zoning use district, except the Industrial Use District (IN),
the noncommercial WECS shall only be located in rear yards.
[Amended 5-3-2023 by L.L. No. 3-2023]
H.
Color and finish.
(1)
Wind turbines and towers shall be painted a nonobtrusive (e.g.,
light environmental color such as white, gray, or beige) color that
is nonreflective; and
(2)
The design of noncommercial WECS 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.
I.
Lighting. Exterior lighting on any structure associated with the
system shall not be allowed except that which is specifically required
by the FAA or required by Mercy Flight (and approved by the Town of
Lockport Planning Board).
J.
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 a noncommercial WECS.
K.
Safety and security requirements.
(1)
Safety shutdown. Each noncommercial WECS shall be equipped with
both manual and automatic controls to limit the rotational speed of
the blade within the design limits of the wind turbine. Manual electrical
and/or over-speed shutdown disconnect switches shall be provided and
clearly labeled on the noncommercial WECS. No wind turbine shall be
permitted that lacks an automatic braking, governing, or feathering
system to prevent uncontrolled rotation, over-speeding, and excessive
pressure on the tower structure, rotor blades, and wind turbine components;
(2)
All structures which may be charged with lightning shall be
grounded according to applicable electrical code;
(3)
The blade tip of any wind turbine shall, at its lowest point,
have ground clearance of not less than 30 feet;
(4)
Wind turbine towers shall not be climbable up to 15 feet above
ground level;
(5)
All access doors to noncommercial WECS structures and electrical
equipment shall be lockable and shall remain locked at all times when
operator personnel are not present;
(6)
Anchor points for any guy wires for a system 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 enclosed
by a fence six feet high or sheathed in bright orange or yellow covering
from ground level to eight feet above the ground. The minimum setback
for the guy wire anchors shall be 20 feet from the property boundary;
and
(7)
Appropriate warning signage shall be placed on wind turbine
towers and electrical equipment. Signage shall also include one twenty-four-hour
emergency contact number to the owner of the wind turbine as well
as signage warning of electrical shock or high voltage and harm from
revolving machinery.
L.
Noise requirements.
(1)
The audible noise standard due to wind turbine operations shall
be in conformance with the Town's noise ordinance; and
(2)
A noncommercial WECS 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.
M.
Impact on wildlife species and habitat.
(1)
Development and operation of a noncommercial WECS shall not
have a significant adverse impact on endangered or threatened fish,
wildlife, or plant species or their critical habitats; and
(2)
Development and operation of a noncommercial WECS shall not
have an adverse impact on migratory bird species.
N.
Interference with residential television, microwave, and radio reception.
(1)
The applicant must submit information that the proposed construction
of a noncommercial WECS will not cause interference with microwave
transmissions, cellular transmissions, residential television interference,
or radio reception of domestic or foreign signals; and
(2)
The applicant shall include specific measures proposed to prevent
interference, a complaint procedure, and specific measures proposed
to mitigate interference impacts.
P.
Bond. A bond or other appropriate form of security may be required
to cover the cost of the removal and site restoration by the Town
of Lockport Planning Board.
Q.
Erosion control.
(1)
Before the Town of Lockport shall issue a grading or building
permit for a noncommercial WECS, the applicant shall submit an erosion
control plan to the Engineering Department for its review and approval;
and
(2)
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 minimize erosion or sedimentation.
R.
Certification.
(1)
The foundation, tower, wind turbine, and compatibility of the
tower with related equipment shall be certified in writing by a structural
engineer registered in New York State. The engineer shall certify
compliance with good engineering practices and compliance with the
appropriate provisions of the Uniform Construction Code that have
been adopted in New York State;
(2)
After completion of the noncommercial WECS, the applicant shall
provide a postconstruction certification from a licensed professional
engineer registered in the State of New York that the project complies
with applicable codes and industry practices and has been completed
according to the design plans;
(3)
The electrical system shall be certified in writing by an electrical
engineer registered in New York. The engineer shall certify compliance
with good engineering practices and with the appropriate provisions
of the Electrical Code that have been adopted by New York State;
(4)
The wind turbine over-speed control system shall be certified
in writing by a mechanical engineer registered in New York State.
The engineer shall certify compliance with good engineering practices;
and
(5)
Certificate of completion must be supplied by the applicant
and approved by the Town of Lockport Code Enforcement Officer.
S.
Any noncommercial WECS to be used strictly for agricultural use purposes
in accordance with New York State Agriculture and Markets Law may
have some of the requirements of this article waived by the Planning
Board.
A.
Time limit on completion. After approval of a noncommercial WECS,
the building permit shall be obtained within six months and the project
shall be completed within 12 months. If not constructed, the special
permit shall automatically lapse within 12 months after the date of
approval by the Town of Lockport Planning Board.
B.
Inspections. Upon reasonable notice, Town of Lockport Code Enforcement
officials or their designated representatives may enter a lot on which
a noncommercial WECS special 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. Furthermore, a noncommercial WECS
shall be inspected annually by a New York State licensed professional
engineer that has been approved by the Town or at any other time,
upon a determination by the Town's Code Enforcement Officer, that
the wind turbine, tower, or other residential WECS components have
sustained structural damage, and a copy of the inspection report shall
be submitted to the Town Building Inspector. Any fee or expense associated
with this inspection shall be borne entirely by the permit holder.
C.
General complaint process. During construction, the Town Building
Inspector can issue a stop order at any time for any violations of
the special permit. 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 any complaint from the Town of Lockport Code Enforcement
Officer, the permit holder/contact person shall have seven working
days to reply to the Town in writing before any determination or decision
is made by the Building Inspector.
D.
Continued operation. A noncommercial 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. Further, the Building Inspector
shall also have the right to request documentation from the owner
for the noncommercial WECS regarding the WECS' usage at any time.
E.
Removal. All noncommercial WECS facilities, including, but not limited
to, towers, blades, and accessory structures, shall be dismantled
and removed immediately from the site when the permit has been revoked
by the Town of Lockport Planning Board, or the noncommercial WECS
has been deemed inoperative or abandoned by the Building Inspector
for a period of more than 180 days, at the cost of the owner. If the
owner does not dismantle and remove said noncommercial WECS facility
as required, the Town Board may, after a hearing at which the owner
shall be given an opportunity to be heard and present evidence, dismantle
and remove said facility and place the cost of removal as a tax lien
on said parcel.
F.
Determination of abandonment or inoperability. A determination of
the abandonment or inoperability of a noncommercial wind conversion
system shall be made by the Town Building Inspector who shall provide
the owner with written notice by personal service or certified mail.
Any appeal by the owner of the Building Inspector's determination
of abandonment or inoperability shall be filed with the Town of Lockport
Zoning Board of Appeals within 30 days of the Building Inspector causing
personal service or mailing by certified mail his written determination,
and the Board shall hold a hearing on same. The filing of an appeal
does not stay the following time frame unless the Zoning Board of
Appeals or a court of competent jurisdiction grants a stay or reverses
said determination. At the earlier of the 181 days from the date of
determination of abandonment or inoperability without reactivation
or upon completion of dismantling and removal, any special permit
and/or variance approvals for the noncommercial WECS shall automatically
expire.
G.
Special permit term. Special permits granted pursuant to this article
may be limited in duration by the Town of Lockport Planning Board.
H.
Application and annual fees. Applicant shall pay an initial application
fee of $500, or such other amount as the Town Board may, from time
to time, determine by resolution, upon filing its application to cover
the cost of processing and reviewing the application. If approved,
the owner shall pay an annual fee of $150, or such other amount as
the Town Board may, from time to time, determine by resolution, to
cover the cost of processing and reviewing the annual inspection report
and for administration, inspections and enforcement.
I.
Prior to the issuance of a building permit, the applicant shall document
that all applicable federal, state, county, and local permits have
been obtained.
J.
Special permits granted under this article shall be issued only following
a public hearing held as required by the Town Zoning Law.
K.
The Planning Board may grant the special permit, deny the special
permit, or grant the special permit with written stated conditions.
Denial of the special permit shall be by written decision based upon
substantial evidence considered by the Board. Upon issuance of the
special permit, the applicant shall obtain a building permit for each
noncommercial WECS.
L.
Any changes or alterations postconstruction to a noncommercial WECS
shall be done only by amendment to the special permit and subject
to all requirements of this Code.
M.
In addition to the requirements of this article, the special permit
application shall be subject to any other site plan approval requirements
set forth in the Zoning Law.
If the applicant violates any of the conditions of its permit
or violates any other local, state or federal laws, rules or regulations,
this shall be grounds for revocation of the special permit. Revocation
may occur after the applicant is notified in writing of the violations
and the Town of Lockport Planning Board holds a hearing on same.
In their interpretation and application, the provisions of this
article shall be held to be minimum requirements adopted for the promotion
of the public health, safety and general welfare. It is not intended
to interfere with, abrogate, or annul other rules, regulations or
laws, provided that whenever the requirements of this article are
at a variance with the requirements of any other lawfully adopted
regulations, rules or laws, the most restrictive, or those which impose
the highest standards, shall govern.
If any section, subsection, phrase, sentence, or other portion
of this article is for any reason held invalid, void, unconstitutional,
or unenforceable by any court of competent jurisdiction, such portion
shall be deemed a separate, distinct, and independent provision, and
such holding shall not affect the validity of the remaining portions
hereof.
