[HISTORY: Adopted by the Town Board of the Town of Dayton 8-10-2010 by L.L. No. 2-2010. Amendments noted where applicable.]
This chapter shall be entitled "Wind Energy Conversion Systems:
(WECS) Local Law of the Town of Dayton."
The Town Board of the Town of Dayton adopts this chapter to
promote the effective and efficient use of the Town's wind energy
resource through wind energy conversion systems ("WECS"), and to regulate
the placement of such systems so that the public health, safety and
welfare will not be jeopardized.
The Town Board of the Town of Dayton adopts this chapter under
the authority granted by:
A.
Article IX of the New York State Constitution, § 2(c),
(6) and (10).
B.
New York Statute of Local Governments, § 10(1), (6), and
(7).
C.
New York Municipal Home Rule Law, § 10(1), (i) and (ii)
and § 10(1)(a), (6), (11), (12), and (14).
D.
The supersession authority of New York Municipal Home Rule Law, § 10(2)(d),
(3).
E.
New York Town Law, Article 16, Zoning.
F.
New York Town Law § 130 Subsections (1), Building code,
(3), Electrical code, (5), Fire prevention, (7), Use of streets and
highways, (7-a), Location of driveways, (11), Peace, good order and
safety, (15), Promotion of public welfare, (15-a), Excavated lands,
(16), Unsafe buildings, (19), Trespass, and (25), Building lines.
G.
New York Town Law § 64, Subsection (17-a), Protection of
aesthetic interests, and (23), General powers.
The Town Board of the Town of Dayton 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 dependance
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,
including small systems, can be cost effective, and in many cases
existing power distribution systems can be used to transmit electricity
from wind-generating stations to utilities or other users, or site
energy consumption can be reduced.
C.
Regulation of the siting and installation of wind turbines is necessary
for the purpose of protecting the health, safety, and welfare of the
neighboring property owners and the general public.
D.
Wind energy facilities represent significant potential aesthetic
impacts because of their large size, lighting, and shadow flicker
effects.
E.
If not properly regulated, installation and improper construction
methods of wind energy facilities can harm farmlands and create drainage
problems through erosion and lack of sediment control for facility
sites and access roads.
F.
Wind energy facilities may present a risk to bird and bat population,
if not properly sited.
G.
If not properly sited, wind energy facilities may present risks to
the property values of adjoining property owners.
H.
If unregulated, wind energy facilities may be significant sources
of noise, and can negatively impact adjoining properties.
I.
Without proper planning, construction of wind energy facilities can
create traffic problems and damage local roads.
J.
Wind energy facilities can cause electromagnetic interference with
various types of communications, if improperly sited.
As used in this chapter, the following terms and descriptions
shall be as follows:
The land and on-farm buildings, equipment, manure processing
and handling facilities, and practices which contribute to the preparation,
production and marketing of crops, livestock and livestock products
as a commercial enterprise, including commercial horse breeding operation
as defined in New York Agriculture and Markets Law in § 301,
Subsection (13), and timber processing, in § 301, Subsection
(14). Such farm operations may consist of one or more parcels of owned
or rented land of whose parcels may be contiguous or noncontiguous
to each other's.
The Environmental Assessment Form used in the implementation
of the SEQRA.
Any dwelling suitable for habitation existing in the Town
of Dayton on the date an application for SEQRA is received and completed,
including seasonal homes, hotels, hospitals, motels, dormitories,
sanitariums, nursing homes, senior housing, schools, or other buildings
used for educational purposes. A residence may be part of a multi-dwelling
or multipurpose building, but shall not include correctional institutions
or hunting cabins.
The New York State Environmental Quality Review Act and its
implementing regulations as defined in Title 6 of the New York Codes,
Rules and Regulations, Part 617.
The parcel(s) of land where the wind energy facility is to
be placed. The site could be publicly or privately owned by an individual
or group of individuals controlling single or adjacent properties.
Where multiple lots are in joint ownership, the combined lots shall
be considered as one for purposes of applying setback requirements.
Any property which has a wind energy facility or has entered into
an agreement for said facility or a setback agreement and received
the required variance shall not be considered off site.
A wind energy conversion system consisting of a wind turbine,
a tower, and associated control or conversion electronics, which has
a rated capacity of not more than 100 kW and which is intended to
primarily reduce on-site consumption of utility power.
50 dBA indicates that in any hour of the day 50 dBA can be
equaled or exceeded only 10% of the time, or for six minutes. The
measurement of the sound pressure level can be done according to the
International Standard for Acoustic Noise Measurement Techniques for
Wind Generators (IEC 61400-11), or other accepted procedures.
The vertical distance from ground level to the top of a wind
turbine blade when the tip is at its highest point.
A machine or machines that converts the kinetic energy in
the wind into a usable form (commonly known as a "wind turbine" or
"windmill") which has a production capacity of greater than 100 kW.
Any wind energy conversion system, small wind energy conversion
system, or wind measurement tower, including all related infrastructure,
electrical lines and substations, access roads and accessory structures.
A permit, granted pursuant to this chapter, granting the
holder the right to construct, maintain and operate a wind energy
facility.
A tower used for the measurement of meteorological data such
as temperature, wind speed, and wind direction.
A district which encompasses part or parts of one or more
underlying zones or districts and that establishes requirements for
wind energy facilities.
A.
No wind energy facility shall be constructed, reconstructed, modified,
or operated in the Town of Dayton except in compliance with this chapter.
B.
No WECS including small WECS shall be constructed, reconstructed,
modified or operated in the Town of Dayton except in a wind overlay
district, pursuant to an application for rezoning and a special use
wind energy facilities permit approved pursuant to this chapter.
C.
No wind measurement tower shall be constructed, reconstructed, modified, or operated in the Town of Dayton except pursuant to a wind energy facility permit issued pursuant to this chapter except as allowed by Subsection G of this section.
D.
This chapter shall apply to all areas of the Town of Dayton. Notwithstanding
any other provisions of the Zoning Local Law, special use permits
for wind energy facilities shall be issued by the Town of Dayton Zoning
Board of Appeals.
E.
Exemptions.
(1)
No permit or other approval shall be required under this chapter
for WECS utilized solely for agricultural operations in a local, county,
or state agricultural district, as long as the facility is set back
at least 1 1/2 times its total height from a property line, and
does not exceed 120 feet in height.
(2)
Towers over 120 feet in total height utilized solely for agricultural
operations in a local, county or state agricultural district shall
apply for a special use permit in accordance with this chapter, but
shall not require a height variance.
(3)
Prior to the construction of a WECS under this exemption, the property
owner or a designated agent shall submit a sketch plan and building
permit application to the Town to demonstrate compliance with the
setback requirements.
F.
Transfer. No transfer of any wind energy facility or wind energy
special use permit, nor sale of the entity owning such facility including
the sale of more than 30% of the stock of such entity (not counting
sales of shares on a public exchange), will occur without prior approval
of the Town, which approval shall be granted upon written acceptance
of the transferee of the obligations of the transferor under this
section, and the transferee's demonstration, in the sole discretion
of the Town Board, that it can meet the technical and financial obligations
of the transferor. No transfer shall eliminate the liability of the
transferor nor of any other party under this section unless the entire
interest of the transferor in all facilities in the Town is transferred
and there are no outstanding obligations or violations.
G.
Notwithstanding the requirements of this section, replacement in
kind or modification of a wind energy facility may occur without Town
Board approval when:
A.
The requirements of this chapter shall apply to all wind energy facilities
proposed, operated, modified, or constructed after the effective date
of this chapter.
B.
Wind energy facilities for which a required permit has been properly
issued and upon which construction has commenced prior to the effective
date of this chapter shall not be required to meet the requirements
of this chapter; provided, however, that:
(1)
Any such preexisting wind energy facility which does not provide
energy for a continuous period of 12 months shall meet the requirements
of this chapter prior to recommencing production of energy.
(2)
No modification or alteration to an existing wind energy facility
shall be allowed without full compliance with this chapter.
(3)
Any wind measurement tower existing on the effective date of this
chapter shall be removed no later than 24 months after said effective
date, unless a special use permit for said wind energy facility is
obtained.
C.
Wind energy facilities may be either principal or accessory uses.
A different existing use or an existing structure on the same site
shall not preclude the installation of a wind energy facility or a
part of such facility on such site. Wind energy facilities constructed
and installed in accordance with this chapter shall not be deemed
expansions of a nonconforming use or structure.
A.
Wind overlay district may be created in the Agricultural-Forestry
(A-F) District; the Residential (R-1) District; the Industrial (I-1)
District.
B.
Initial requests for wind overlay districts shall be submitted with
applications for WECS special use permits. No wind overlay district
may be initially created without specific requests for WECS.
C.
Once a wind overlay district has been created, new WECS or accessory
structures or facilities may be added in that district by grant of
a special use permit pursuant to the requirements of this chapter.
A joint application for a wind overlay district and special
use permit for individual WECS shall include the following:
A.
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.
B.
Name and 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:
C.
Address, or other property identification, of each proposed tower
location, including tax map section, block and lot number.
D.
A description of the project, including the number and maximum rated
capacity of each WECS.
E.
A plot plan prepared by a licensed surveyor or engineer drawn in
sufficient detail to clearly describe the following:
(1)
Property lines and physical dimensions of the site.
(2)
Location, approximate dimensions, and types of major existing structures,
including all residences, and uses on site, public roads, and adjoining
properties within 500 feet of the boundaries of the proposed wind
overlay district.
(3)
Location and elevation of each proposed WECS.
(4)
Location of all aboveground utility lines on the site or within one
radius of the total height of the WECS, transformers, power lines,
interconnection point with transmission lines and other ancillary
facilities or structures.
(5)
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.
(6)
The zoning designation of the subject and adjacent properties as
set forth on the official Town Zoning Map.
(7)
Proposed boundaries of the wind overlay district.
(9)
Location of the nearest residential structure located off the site,
and the distance from the proposed WECS. The distance from the center
of the tower to any off-site residence within 1,000 feet shall be
noted.
(10)
Location of all proposed facilities, including access roads,
electrical lines, substations, storage or maintenance units and fencing.
F.
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.
G.
Landscaping plan depicting existing vegetation and describing the
areas to be cleared and additions of proposed specimens identified
by location, species, and size upon installation.
H.
Lighting plan showing any FAA required lighting and other proposed
lighting. The application shall include a copy of the Federal Aviation
Administration determination to establish required markings and/or
lights for the structure. If such determination is not available at
the time of application, no building permit for any lighted facility
may be issued until such determination is submitted.
I.
List of property owners, with their mailing addresses, within 500
feet of the boundaries of the proposed wind overlay district. The
applicant may delay submitting this list until the Town Board calls
for a public hearing on the application.
J.
Decommissioning plan. The applicant shall submit a decommissioning
plan which shall include: 1) the anticipated life of the WECS; 2)
the estimated decommissioning costs in current dollars; 3) how said
estimate was determined; 4) the method of ensuring that funds will
be available for decommissioning and restoration; 5) the method, such
as, by an annual re-estimate by a licensed engineer, that the decommissioning
cost will be kept current; and 6) the manner in which the WECS will
be decommissioned and the site restored, including all the structures
and debris to a depth of three feet, restoration of the soil and vegetation
(consistent and compatible with surrounding vegetation), less any
fencing or residual minor improvements requested by the landowner.
The plan shall include the decommissioning bond required by this section.
K.
Complaint resolution. The application shall include a complaint resolution
process to address complaints from nearby residents. The process may
use an independent mediator or arbitrator and include a time limit
for acting on a complaint. The applicant shall make every reasonable
effort to resolve any complaint.
L.
An application shall include information relating to the construction/installation
of the wind energy conversion facility as follows:
M.
A completed Part 1 of the Full Environmental Assessment Form ("FEAF").
N.
Applications for wind energy special use permits for wind measurement
towers subject to this chapter may be jointly submitted with the WECS
application.
O.
Each proposed WECS shall include make, model, photo and manufacturer's
specifications, including noise decibels data. Include manufacturers'
material safety data sheet documentation for the type and quantity
of all materials used in the operation of all equipment including,
but not limited to, all lubricants and coolants.
P.
If the applicant agrees in writing the application that the proposed
WECS may have a significant impact on the environment, the Town Board
may issue a positive declaration of environmental significance.
Q.
If a positive declaration of environmental significance is determined
by the SEQRA lead agency, the following information shall be included
in the draft environmental impact statement ("DEIS") prepared for
the wind energy facility. Otherwise, the following studies shall be
submitted with the application:
(1)
Shadow flicker: The applicant shall conduct a study on potential
shadow flicker. The study shall identify locations where shadow flicker
may be caused by the WECS and the expected durations of the flicker
at those locations. The study shall identify areas where shadow flicker
may interfere with residences and describe measures that shall be
taken to eliminate or mitigate the problems.
(2)
Visual impact: Applications shall include a visual impact study of
the proposed WECS as installed, which may include a computerized photographic
simulation, demonstrating any visual impacts from strategic vantage
points. Color photographs of the proposed site from at least two locations
accurately depicting the existing conditions shall be included. The
visual analysis 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.
(3)
Fire protection plan: A fire protection and emergency response plan,
created in consultation with the fire department(s) having jurisdiction
over the proposed site.
(4)
Noise analysis: A noise analysis by a competent acoustical consultant
documenting the noise levels associated with the proposed WECS. The
study shall document noise levels at property lines and at the nearest
residence not on the site. If access to the nearest residence is not
available, the Town Board may modify this requirement. The noise analysis
shall provide preexisting ambient noise levels and include low frequency
noise.
(5)
Property value analysis prepared by a licensed appraiser in accordance
with industry standards, regarding the potential impact on values
of properties adjoining WECS sites and including properties across
public roads from the site.
(6)
An assessment of potential electromagnetic interference with microwave,
radio, television, personal communication systems and other wireless
communications.
(7)
Tower design information sufficient to demonstrate compliance with
wind-loading requirements.
(8)
Analysis of potential ice-throwing and damage from blade impacts.
R.
Prior to receipt of a building permit, the applicant shall 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.
S.
A statement, signed under penalties of perjury, that the information
in the application is true and accurate.
A.
Applicants may request a preapplication meeting with the Town Board
or with any consultants retained by the Town Board for application
review. These meetings shall be conducted in accordance with the Open
Meetings Law.
B.
Eight copies of the application shall be submitted to the Town Clerk.
Payment of all application fees shall be made at the time of application
submission. If any variances are requested, variance application fees
shall be paid at the time of the receipt of the application.
C.
Town Board designated consultants shall, within 30 days of receipt
or such longer time as agreed to by the applicant, determine if all
information required under this chapter is included in the application.
No application shall be considered until deemed complete or unless
the Town Board waives any application requirement.
D.
If the application is deemed incomplete, the Town Board or its designated
reviewer shall provide the applicant with a written statement listing
the missing information. No refund of application fees shall be made,
and no additional fees shall be required upon submittal of the additional
information unless the number of WECS proposed is increased.
E.
Upon submission of a complete application, including the grant of
any variance application by the Town Board, the Town Clerk shall transmit
the application to the Town Board designated consultant. The applicant
shall post the completed application and any accepted environmental
impact statements on the internet. The application shall be referred
to the Planning Board in accordance with this chapter.
F.
The Town Board shall hold at least one public hearing on the application.
Notice shall be given by first class mail to property owners within
500 feet of the boundaries of the proposed WECS, and published in
the Town's official newspaper, no less than 10 nor more than
20 days before any hearing. Where the hearing is adjourned by the
Town Board to hear additional comments, no further publication or
mailing shall be required. The applicant shall prepare and mail the
notice of public hearing prepared by the Town, and shall submit an
affidavit of service. The assessment roll of the Town shall be used
to determine mailing addresses.
G.
The public hearing may be combined with public hearings on any environmental
impact statement or requested variances.
H.
Notice of the project shall be given, when applicable, to: 1) adjoining
Towns under Town Law § 264; and 2) the Cattaraugus County
Planning Board, if required by General Municipal Law §§ 239-1
and 239-m.
I.
SEQRA review. Applications for WECS are deemed Type 1 projects under
SEQRA. The Town shall conduct its SEQRA review in conjunction with
other agencies, and the record of review by said agencies shall be
part of the record of the Town's proceedings.
J.
The Town may require an escrow agreement for the engineering and
legal review of the applications and any environmental impact statements
before commencing the review. At the completion of the SEQRA review
process, if a positive declaration of environmental significance has
been issued and an environmental impact statement prepared, the Town
shall issue a statement of finds, which statement may also serve as
the Town's decision on the applications.
K.
Upon receipt of the recommendations of the County Planning Board
(where applicable), the report of the recommendation of the Town Planning
Board (where applicable), the holding of the public hearing, and the
completion of the SEQRA process, the Town Board may approve, approve
with conditions, or deny the applications, in accordance with any
standards of this chapter.
The following standards shall apply to all WECS, unless specifically
waived by the Town Board as part of a wind energy permit.
A.
All power transmission lines from the tower to any building or other
structure shall be located underground to the maximum extent practicable.
C.
No advertising signs are allowed on any part of the wind energy facility,
including fencing and support structures.
D.
Lighting of tower. No tower shall be lit except to comply with FAA
requirements. Minimum security lighting for ground level facilities
shall be allowed as approved on the wind energy facility development
plan.
E.
All applicants shall use measures to reduce the visual impact of
WECS to the extent possible. WECS shall use tubular towers. All structures
in a project shall be finished in a single, nonreflective matte finished
color or a camouflage scheme. WECS within a multiple WECS project
shall be constructed using wind turbines whose appearance, with respect
to one another, is similar within and throughout the project, to insure
reasonable uniformity in overall size, geometry, and rotational speeds.
No lettering, company insignia, advertising, or graphics shall be
on any part of the tower, or hub or blades.
F.
Guy wires shall not be used; guyed towers are prohibited.
G.
No WECS shall be installed in any location where its proximity with
existing fixed broadcast, retransmission, or reception antenna for
radio, television, wireless phone or other personal communication
systems would produce electromagnetic 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 electromagnetic interference in the
link's operation. If it is determined that a WECS is causing
electromagnetic interference, the operator shall take the necessary
corrective action to eliminate this interference including relocation
of the facilities, or resolution of the issue with the impacted parties.
Failure to remedy electromagnetic interference is grounds for revocation
of the wind energy permit for the specific WECS or causing the interference.
H.
All solid waste and hazardous waste and construction debris shall
be removed from the site and managed in a manner consistent with all
appropriate rules and regulations.
I.
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 when practicable. The use of previously developed
areas will be given priority whenever possible.
J.
WECS shall be located in a manner that minimizes significant negative
impacts on rare animal species in the vicinity, particularly bird
and bat species.
K.
WECS and related infrastructure shall be located and stormwater runoff
and erosion control shall be managed in a manner consistent with all
applicable local, county, state and federal laws and regulations.
L.
The maximum total height of any WECS shall be 450 feet.
M.
Construction of the WECS shall be limited to the hours of 7:00 a.m.
to 8:00 p.m. except for certain activities that require cooler temperatures
than possible during the day, subject to approval from the Town.
O.
The Town of Dayton shall be named as an additional insured under
the general liability policy of the applicant, the amount of which
insurance shall be no less than an amount to be determined by the
Town Board given the nature and scope of the project proposed by the
applicant.
P.
Construction or ground disturbance, restoration and preservation
involving agricultural land shall be followed according to standards
of the New York State Department of Agriculture and Markets Guidelines
for Agricultural Mitigation for Wind Power Projects.
A.
Each WECS shall be equipped with both manual and automatic controls
to limit the rotational speed of the rotor blade so it does not exceed
the design limits of the rotor.
B.
If the property owner submits a written request that fencing be required,
a six-foot-high fence with a locking portal shall be required to enclose
each tower or group of towers. The color and type of fencing for each
WECS installation shall be determined on the basis of individual applications
as safety needs dictate.
C.
Appropriate warning signs shall be posted. At least one sign shall
be posted at the base of the tower warning of electrical shock or
high voltage. A sign shall be posted on the entry area of each 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 Board may require additional signs based on safety
needs.
D.
No climbing pegs or tower ladders shall be located closer than 12
feet to the ground level at the base of the structure for freestanding
single pole.
E.
The minimum distance between the ground and any part of the rotor
or blade system shall be 20 feet.
F.
WECS shall be designed to prevent unauthorized external access to
electrical and mechanical components and shall have access doors that
are kept securely locked at all times.
G.
Accurate maps of the underground facilities shall be filed with the
Town and with Dig Safely New York (1-800-962-7962) or its successor.
A.
Construction of WECS poses potential risks because of the physically
large-size construction vehicles and their impact on traffic safety
and on local roads. Construction and delivery vehicles for WECS and/or
associated facilities shall use traffic routes established as part
of the application review process. Factors in establishing such corridors
shall include: 1) minimizing traffic impacts from construction and
delivery vehicles; 2) minimizing WECS-related traffic during times
of school bus activity; 3) minimizing wear and tear on local roads;
and 4) minimizing impacts on local business operations. Wind energy
permit conditions may require remediation during construction, limit
WECS-related traffic to specified routes, and include a plan for disseminating
traffic route information to the public, and all applicable local,
state, county, and municipal highway superintendents and authorities
whose roads are included in the WECS traffic route plans. Notification
to all applicable highway authorities and superintendents will include
the number, type, size, gross weight, number of round trips, dates
and time periods of expected use of designated traffic routes.
B.
The applicant is responsible for remediation of damaged roads during
and upon completion of the installation and maintenance of WECS. A
public improvement bond shall be posted prior to the issuance of any
building permit in an amount, determined by the Town Board, sufficient
to compensate the Town for any damage to local roads.
A.
The statistical sound pressure level generated by a WECS shall not
exceed L10-50 dBA measured at the closest exterior
wall of any residence existing at the time located off the site upon
completing the SEQRA review of the application. Sites may include
more than one piece of property and the requirement shall apply to
the combined properties. If the ambient sound pressure level exceeds
50 dBA, the standard shall be ambient dBA plus five dBA. Independent
certification shall be provided before and after construction demonstrating
compliance with this requirement.
B.
In the event audible noise due to wind energy facilities operations contains a steady pure tone, such as a whine, screech, or hum, the standards for audible noise set forth in Subsection A of this section shall be reduced by five dBA. A pure tone is defined to exist if the 1/2 octave band sound pressure level in the band, including the tone, exceeds the arithmetic average of the sound pressure levels of the two contiguous 1/3 octave band 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.
C.
In the event the ambient noise level (exclusive of the development
in question) exceeds the applicable standard given above, the applicable
standard shall be adjusted so as to equal the ambient noise level.
The ambient noise level shall be expressed in terms of the highest
whole number sound pressure level I dBA, which is exceeded for more
than five minutes per hour. 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.
D.
Any noise level falling between two whole decibels shall be the lower
of the two.
E.
Each WECS shall be set back from site boundaries, measured from the
center of the WECS, a minimum distance of:
(1)
Five hundred feet from the nearest site boundary property line, except
the setback shall be 500 feet where the boundary is with state, county,
Town or village-owned property.
(2)
Five hundred feet from the nearest public road.
(3)
One thousand feet from the nearest off-site residence existing at
the time of application, measured from the exterior of such residence.
(4)
One hundred feet from state-identified wetlands. This distance may
be adjusted to be greater or lesser at the discretion of the reviewing
body, based on topography, land cover, land uses, and other factors
that influence the flight patterns of resident birds.
(5)
Five hundred feet from any non-WECS structure, or any aboveground
utilities, or gas wells, unless waived in writing by the property
owner or utility companies.
(6)
One thousand feet from the property line of any school, church, hospital
or nursing facility.
(7)
Wind energy conversion facilities shall be located in a manner consistent
with all applicable state and federal wetland laws and regulations.
F.
Other wind energy facility structures and improvements shall comply
with the underlying zoning district regulations.
G.
In the event the noise levels resulting from a WECS exceed the criteria
established in this section, or a setback requirement is not met,
a variance shall be granted from such requirement by the Town Board
of Appeals in the following circumstances.
(1)
Written consent from the affected property owners has been obtained
stating that they are aware of the WECS and the noise and/or setback
limitations imposed by this section, and that they wish to be part
of the site as defined herein, and that consent is granted to: 1)
allow noise levels to exceed the maximum limits otherwise allowed;
or 2) allow setbacks less than required; and
(2)
In order to advise all subsequent owners of the burdened property,
the consent, in the form required for an easement, shall be recorded
in the County Clerk's office describing the benefited and burdened
properties. Such easements shall be permanent and may not be revoked
without the consent of the Town Board, which consent shall be granted
upon either the completion of the decommissioning of the benefited
WECS in accordance with this section, or the acquisition of the burdened
parcel by the owner of the benefited parcel or the WECS.
(3)
In any case where written consent is not obtained, a variance from
the Zoning Board of Appeals shall be required.
A.
Upon completion of the review process, the Town Board shall, upon
consideration of the standards in this chapter and the record of the
SEQRA review, issue a written decision setting forth the reasons for
approval, conditions of approval, or disapproval.
B.
If approved, the Town Board will direct the Town Clerk to modify
the Official Map to reflect the creation of the wind overlay districts,
and authorize Town staff to issue a special use permit for each WECS
upon satisfaction of all conditions for said permit, and direct the
building inspector to issue a building permit, upon compliance with
the Uniform Fire Prevention and Building Code[1] and other conditions of this chapter.
C.
The decision of the Town Board shall be filed within five days in
the office of the Town Clerk and a copy mailed to the applicant by
first class mail.
D.
If any approved WECS is not substantially commenced within two years
of issuance of the permit, the special use permit shall expire unless
renewed by the Board of Appeals and payment of a renewal fee equal
to the original application fee.
A.
If any WECS remains nonfunctional or inoperative for a continuous
period of one year, the applicant agrees that, without any further
action by the Town Board, the applicant shall remove said system at
its own expense. Removal of the system shall include at least the
entire aboveground structure, including, without limitation, transmission
equipment and fencing, from the property. This provision shall not
apply if the applicant demonstrates to the Town that it has been making
good faith efforts to restore the WECS to an operable condition, but
nothing in this provision shall limit the Town's ability to order
a remedial action plan after public hearing.
B.
Nonfunction or lack of operation may be proven by reports to the
Public Service Commission, NYSERDA, New York Independent System Operator,
or by lack of income generation. The applicant shall make available
(subject to a nondisclosure agreement) to the Town Board all reports
to and from the purchaser of energy from individual wind energy conversion
systems, if requested, necessary to prove the WECS is functioning,
which reports may be redacted as necessary to protect proprietary
information.
C.
Decommissioning bond or fund. The applicant, or successors, shall
continuously maintain a fund or bond payable to the Town, in a form
approved by the Town for the removal of nonfunctional towers and appurtenant
facilities, in an amount to be determined by the Town, for the period
of the life of the facility. This fund 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. All
decommissioning bond requirements shall be fully funded before a building
permit is issued.
A.
Nothing in this chapter shall be deemed to give any applicant the
right to cut down surrounding trees and vegetation on any property
to reduce turbulence and increase wind flow to the wind energy facility.
Nothing in this chapter shall be deemed a guarantee against any future
construction or Town approvals of future construction that may in
any way impact the wind flow to any wind energy facility. It shall
be the sole responsibility of the facility operator or owner to acquire
any necessary wind flow or turbulence easements, or rights to remove
vegetation.
B.
Pursuant to the powers granted to the Town to manage its own property,
the Town may enter into noise, setback, or wind flow easements on
such terms as the Town Board deems appropriate, as long as said agreements
are not otherwise prohibited by state or local law.
A.
Testing fund. A wind energy permit shall contain a requirement that
the applicant 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
Town Board in response to complaints by neighbors. The scope of the
noise testing shall be to demonstrate compliance with the terms and
conditions of the special use permit and this chapter and shall also
include an evaluation of any complaints received by the Town. The
applicant shall have 90 days after written notice from the Town Board
to remedy any deficiency. An extension of the ninety-day period may
be considered by the Town Board, 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 a permit condition,
the owner or operator shall remedy the situation within 90 days after
written notice from the Town Board. The applicant shall have 90 days
after written notice from the Town Board to remedy any deficiency.
An extension of the ninety-day period may be considered by the Town
Board, but the total period may not exceed 180 days.
C.
Notwithstanding any other abatement provision under this chapter, and consistent with Subsection A and B, if the WECS is not repaired or made operational or brought into permit compliance after said notice, the Town may, after a public meeting at which the operator or owner shall be given an opportunity to be heard and present evidence, including a plan to come into compliance: 1) order either remedial action within a particular timeframe; or 2) order revocation of the wind energy permit for the WECS and require the removal of the WECS within 90 days. If the WECS is not removed, the Town Board shall have the right to use the security posted as part of the decommission plan to remove the WECS.
The Town Board acknowledges that prior to construction of a
WECS, a wind site assessment is conducted to determine the wind speeds
and the feasibility of using particular sites. Installation of wind
measurement towers, also known as anemometer ("Met") towers, shall
be permitted on the issuance of a wind measurement tower permit in
accordance with this chapter.
An application for a wind measurement tower shall include:
A.
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.
B.
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:
i) confirming that the property owner is familiar with the proposed
applications; and ii) authorizing the submission of the application.
C.
Address of each proposed tower location, including Tax Map section,
block and lot number.
D.
Proposed site development plan and map.
E.
Decommissioning plan, based on the criteria in this chapter for WECS,
including a security bond for removal.
A.
The distance between a wind measurement tower and the property line
shall be at least 1 1/2 times the total height of the tower.
Sites can include more than one piece of property and the requirement
shall apply to the combined properties. Exceptions for neighboring
property are allowed with the consent of those property owners.
B.
Special use permits for wind measurement towers may be issued by
the Board of Appeals 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.
The purpose of this section is to provide standards for small
wind energy conversion systems designed for on-site home, farm and
small commercial use, and that are primarily used to reduce consumption
of utility power at that site. The intent of this section is to encourage
the development of small wind energy systems and to protect the public
health, safety and community welfare.
Small wind energy systems may be permitted in any zoning district
upon issuance of a special use permit.
Applications for small WECS special use permits shall include:
A.
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.
B.
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.
C.
Address of each proposed tower site, including Tax Map section, block
and lot number. Small WECS wind energy permit: $150 per WECS.
D.
Evidence that the proposed tower height does not exceed the height
recommended by the manufacturer or distributor of the system.
E.
A line drawing of the electrical components of the system in sufficient
detail to allow for a determination that the manner of installation
conforms to the Electrical Code of the New York State Uniform Fire
Prevention and Building Code.[1]
F.
Sufficient information demonstrating that the system will be used
primarily to reduce consumption of electricity at that site.
G.
Written evidence that the electric utility service provider serving
the proposed site has been informed of the applicant's intent
to install an interconnected customer-owned electricity generator.
If, however, and unless the applicant does not plan or intend to connect
the system to the electrical grid, a statement must be included in
the application.
H.
A visual analysis of the small WECS as installed, which may include
a computerized photographic simulation, demonstrating the visual impacts
from nearby strategic vantage points. The visual analysis 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.
All small wind energy systems shall comply with the following
standards. Additionally, such systems shall also comply with all the
requirements established by other sections of this chapter that are
not in conflict with the requirements contained in this section.
A.
A system shall be located on a lot a minimum of one acre in size,
however, the requirement can be met by multiple owners submitting
a joint application.
B.
Only one small wind energy system 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 section.
C.
Small wind energy systems may be used primarily to reduce the on-site
consumption of electricity. The maximum turbine power output is limited
to 100 kW.
D.
Tower heights may be allowed as follows:
(1)
Sixty-five feet or less on parcels between one and five acres.
(2)
One hundred twenty feet or less on parcels of five or more acres.
(3)
The allowed height shall be reduced, if necessary, to comply
with all applicable Federal Aviation Requirements, including Subpart
B (commencing with Section 77.11 of Part 77 of Title 14 of the Code
of Federal Regulations regarding installations close to airports).
E.
The system's tower and blades shall be painted a nonreflective
unobtrusive color that blends the system and its components into the
surrounding landscape to the greatest extent possible and incorporate
nonreflective surfaces to minimize any visual disruption. The minimum
distance between the ground and any part of the rotor or blade system
shall be 15 feet.
F.
The system shall be designed and located in such a manner to minimize
adverse visual impacts from public viewing areas (e.g.; public parks,
roads, trails). To the greatest extent possible a small wind energy
system shall: a) not project above the ridgelines; b) use natural
landforms and existing vegetation for screening, if visible from public
viewing areas; c) be screened to the maximum extent possible by natural
vegetation or other means to minimize potentially significant adverse
visual impacts on neighboring residential areas.
G.
Exterior lighting on any structure associated with the system shall
not be allowed except that which is specifically required by the Federal
Aviation Administration.
H.
All 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 decisionmaker if the project terrain
is determined to be unsuitable due to reasons of excessive grading,
biological impacts, or similar factors.
I.
The system shall be operated such that no disruptive electromagnetic
interference is caused. If it has been demonstrated that a system
is causing harmful interference, the system operator shall promptly
mitigate the harmful interference or cease operation of the system.
J.
At least one sign shall be posted on the tower at a height of five
feet warning of electrical shock or high voltage and harm from revolving
machinery. No brand names, logo, or advertising shall be placed or
painted on the tower, rotor, generator, or tail vane where it would
be visible from the ground, except that a system or tower manufacturer's
logo may be displayed on a system generator housing in an unobtrusive
manner.
K.
Towers shall be constructed to provide one of the following means
of access control, or other appropriate method of access:
L.
Anchor points for the 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
in height or sheathed in bright orange or yellow covering from three
feet to eight feet above the ground.
M.
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.
N.
To prevent harmful wind turbulence from existing structures, the
minimum height of the lowest part of any horizontal axis wind turbine
blade shall be at least 30 feet above the highest structure or tree
within a two-hundred-fifty-foot radius. Modification of this standard
may be made when the applicant demonstrates that a lower height will
not jeopardize the safety of the wind turbine structure.
All small wind energy systems shall comply with the following
standards:
A.
Setback requirements. A small WECS shall not be located closer to
a property line than 1 1/2 times the total height of the facility.
B.
Noise. Except during short-term events including utility outages
and severe wind storms, a small WECS shall be designed, installed
and operated so that noise generated by the system shall not exceed
the 50 decibels (dBA), as measured at the closest neighboring inhabited
dwelling.
D.
All small wind energy systems shall be equipped with manual and automatic
overspeed control design, and fabrication with good engineering practices
shall be certified by the manufacturer.
A.
Small WECS which is not used for 12 successive months shall be deemed
abandoned and shall be dismantled and removed from the property at
the expense of the property owner. Failure to abide by and faithfully
comply with this section or with any and all conditions that may be
attached to the granting of any building permit shall constitute grounds
for the revocation of the permit by the Town.
B.
All small WECS shall be maintained in good condition and in accordance
with all requirements of this section.
A.
The Town Board may, after a public hearing (which may be combined
with other public hearings on wind energy facilities, as long as the
waiver request is detailed in the public notice), grant a waiver from
the strict application of the provisions of this chapter if, in the
opinion of the Town Board may consider as reasonable factors in evaluating
the request, which may include, when applicable, the impact of the
waiver on the neighborhood, including the potential determent to nearby
properties, the benefit to the applicant, possible alternatives, and
the scope of the request.
B.
The Town Board may attach such conditions as it deems appropriate
to waiver approvals as it deems necessary to minimize the impact of
the waiver.
A.
Nonrefundable application fees are as follows:
(1)
WECS wind energy special use permit: $130 per megawatt of rated maximum
capacity.
(2)
Wind energy overlay district rezoning.
(3)
Wind measurement tower wind energy permit.
(4)
Wind measurement tower special use permit renewals.
(5)
Waiver application fee: $_____ per tower site.
(6)
The cost of all legal notices and mailings shall be assessed to the
applicant.
B.
Building permits.
(1)
The review of building and electrical permits for wind energy facilities
requires specific expertise, accordingly the permit fees for such
facilities shall be assessed in accordance with administrative costs
which shall be $100 per permit request, plus any charges for outside
consultants hired by the Town to review the plans and inspect the
work. As an alternative the Town and the applicant may enter into
an agreement for an inspection and/or certification procedure for
these unique facilities. In such case, the Town and the applicant
shall agree on a fee arrangement and escrow agreement to pay for the
costs of the review of the plans or certifications, and/or to conduct
inspections.
(2)
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.
(3)
Nothing in this chapter shall be read as limiting the ability of
the Town to enter into host community agreements with any applicant
to compensate the Town for expenses or impacts on the community. The
Town 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.
(4)
The Town Board may amend these fees, by resolution, after a properly
noticed public hearing.
The Town hereby exercises its right to opt out of the tax exemption
provisions of Real Property Tax Law § 487, pursuant to the
authority granted by Paragraph 8 of that law.
A.
In addition to the Code Enforcement Officer under § 701,
the Town Board may appoint such Town staff or outside consultants
as it deems necessary to enforce this chapter.
B.
Any person owning, controlling or managing any building, structure
or land who shall undertake a wind energy conversion facility or wind
monitoring tower in violation of this chapter, or in noncompliance
with the terms and conditions of any permit issued pursuant to this
chapter, or any order of the enforcement officer, and any person who
shall assist in so doing, shall be guilty of an offense and subject
to a fine of not more than $350 or to imprisonment for a period of
not more than 15 days, or subject to both such fine and imprisonment
for a first offense. A second offense (both within a period of five
years) a fine not less than $350 nor more than $700, or imprisonment
not to exceed six months, or both. For a third offense or more (all
of which occurred within five years), a fine not less than $700 nor
more than $1,000, or imprisonment not to exceed six months, or both.
Every such person shall be deemed guilty of a separate offense for
each week such violation shall continue. The Town may institute a
civil proceeding to collect civil penalties in the amounts set forth
herein for each violation and each week said violation continues shall
be deemed a separate violation.
C.
In case of any violation or threatened violation of any of the provisions
of this chapter, including the terms and conditions imposed by any
permit issued pursuant to this chapter, in addition to other remedies
and penalties herein provided, the Town may institute any appropriate
action or proceeding or prevent such unlawful erection, structural
alteration, reconstruction, moving and/or use, and restrain, correct
or abate such violation, to prevent the illegal act.
Should any provision of this chapter be decided by the courts
to be unconstitutional or invalid, such decision shall not affect
the validity of this chapter as a whole or any part thereof other
than the part so decided to be unconstitutional or invalid.
This chapter shall be effective upon the filing with the Secretary
of State in accordance with the Municipal Home Rule Law.
