Purpose and intent.
The purpose of this article is to address the construction and operation of commercial facilities that convert wind energy to electricity and the necessary electric transmission facilities that transmit this electric power to a commercial power grid. Commercial wind power generation is a nonpolluting source of energy and has the potential to provide the Town and other taxing districts with taxes or payments in lieu of property taxes that can reduce property tax levies. In addition, landowners with commercial wind turbines can receive income from the power generated. The aesthetics of the Keuka Lake area as described in the Town Comprehensive Plan are recognized and must be protected to assure the health of the tourism industry in the region and the character of the neighborhood in the area where the activity may be undertaken. This article establishes a wind farm overlay zone and standards to minimize the environmental impacts resulting from the physical construction and operation of these commercial scale facilities. Furthermore, it strives to maintain the existing use of land close to the commercial wind tower. This article will address the visual, aesthetic and land use compatibility aspects of commercial wind energy conversion units, and more specifically will:
A. Restrict the location of commercial wind energy conversion units to areas where adverse impacts on the community are minimized.
B. Require the configuration of commercial wind energy conversion units to be located in a way that minimizes adverse visual impact of the towers.
Wind measurement towers.
A. Permitted temporary use. The construction of a temporary wind measurement tower (WMT) for the collection of wind data in a location of a proposed commercial wind farm shall be permitted. Such temporary use shall be for a period of not more than 26 months, and shall be subject to site plan review and approval by the Town Planning Board and the issuance of a building permit by the Zoning Officer, and the posting of a surety in a form acceptable to the Town in an amount sufficient to fund the removal of such tower at the conclusion of the use.
B. Requirements.
(1) The distance between the WMT and the property line shall be at least 1.25 times the tip height of the WMT.
(2) Anchor points for any guy wires for a WMT shall be located within the property on which the WMT is located and not cross any aboveground electric wires. The point of attachment for the guy wire to the anchor shall be sheathed in bright orange or yellow covering from three to eight feet above the ground.
(3) The New York State Department of Agriculture and Markets guidelines for agricultural mitigation shall be adhered to both in and outside the agricultural districts.
Standards.
The construction of a commercial wind energy conversion unit (CWECU) or commercial wind energy conversion system (CWECS) shall be permitted only within the Town Wind Energy Overlay District upon receiving prior permit approval from the Town Planning Board. Such application for a permit shall only be granted if the application complies with the following requirements and such other reasonable conditions that the Town Planning Board requires as part of any conditional approval issued hereunder: No CWECU or CWECS will be permitted outside of the Town Wind Farm Zone.
A. Location. All CWECUs shall be located, erected and sited in accordance with the following requirements:
(1) The applicant will evaluate the effects of the CWECS on any migratory flight path of birds and bats. If such problem is found to exist, such problem shall be resolved at the applicant's sole and complete expense to the satisfaction of the Town Code Enforcement Officer.
(2) No individual commercial wind energy conversion unit (CWECU) shall be installed in any location where such unit's proximity with existing fixed broadcast or reception antenna (including residential reception antenna or satellite system) for radio, television or wireless phone or other personal communication systems where the unit would produce interference with signal transmission or reception. The applicant shall correct (or document significant progress toward corrective action on) any unforeseen interference to the satisfaction of the Code Enforcement Officer within 30 days of any complaint being given to the applicant by the Code Enforcement officer or affected person. To correct such problem:
(a) The applicant shall provide the affected person(s) with service equal to or better than the service that was interrupted, or an acceptable alternative to such service which is agreeable to the Code Enforcement Officer and the affected property owner.
(b) If emergency service needs have been affected, such problem shall be remedied by the applicant within 36 hours of notification being given to the applicant by the Code Enforcement Officer or affected person.
(3) All CWECUs shall be located, installed, or constructed on the subject parcel only in accordance with the following setbacks:
(a) A distance not less than 625 feet as measured from any and all public roadways or aboveground power lines in the vicinity of said unit, to the base of such unit.
(b) A distance not less than 1,500 feet as measured from any existing residential building, unless waived in writing by the owner of such neighboring residential building.
(c) A distance not less than 625 feet as measured from the property lines of the parcel on which said CWECU is to be sited.
(4) Variance. The Town Zoning Board of Appeals is authorized to grant a variance to the setback requirements of Subsection A(3) of this section in accordance with Article
XV of the Town of Jerusalem Zoning Ordinance, only if said Board is in receipt of a written, notarized consent form from the impacted property owner.
B. Noise. The level of noise produced by or from the operation of the CWECU or CWECS shall be less than six dBA over background noise at the property lines and less than five dBC over background noise at the property lines.
C. Property values. The owner of the CWECU or CWECS shall agree to reimburse any property owner within a radius of two miles of the CWECS who, based upon an appraisal by a mutually agreed-upon licensed property value appraiser, determines that the value of the owner's property has been reduced due to the presence of the CWECU or CWECS. Such reimbursement shall be made within two years of the commencement of construction of the CWECU or CWECS. This reimbursement shall be only for the loss of property value (all structures and land values) due to the presence of the CWECU or CWECS. The Town Planning Board shall require the applicant to provide a bond in the amount of 50% of the current assessed value of the property (or other security acceptable to the Town Board) for the purpose of complying with such agreement in case the applicant fails to do so. Proof of this bond or other security shall be filed with the Town Clerk before construction may begin.
D. Emergency shutdown/safety operations.
(1) The applicant shall file emergency contact information with the Town Clerk, including but not limited to a telephone number and unique ID number, for each wind energy conversion unit, and shall post the information at the entrance of each access road to such wind energy conversion unit so the appropriate people may be contacted should any CWECU need immediate attention or care.
(2) Each CWECU shall have an automatic manufacturer-certified or engineer-certified braking, governing, or feathering system to prevent uncontrolled rotation, over-speeding, and excessive pressure on the tower structure, rotor blades, and turbine components or nacelle.
E. Lighting.
(1) No CWECU shall be artificially lighted unless such lighting is required by a local, state or federal statute, rule or regulation. The use of nighttime and overcast daytime condition stroboscopic lighting shall be the minimum required by law to satisfy the lighting requirements as issued by the Federal Aviation Administration.
(2) Light shields, if commercially available, or other devices to block downward lighting must be used. A study of the potential impact of the proposed lighting, as well as any required alterations as determined and required for approval hereunder, on the area surrounding the subject project must be submitted.
(3) If the minimum lighting requirement, as determined by applicable federal, state or local rules, regulations or statutes change during the course of operation of the wind energy conversion system, the applicant shall alter the lighting and install such lighting in the wind energy conversion system that is at a level equal to or better than such revised minimum requirements.
(4) Prior notification of any changes in the lighting plan for the project must be communicated to the Town Planning Board prior to installation of such new lighting scheme, and such alterations shall be approved for installation only for good cause shown or in order to bring such project into compliance with any and all statutory and regulatory requirements.
F. Utility service.
(1) All power transmission lines servicing the project or any portion thereof shall be underground to a minimum depth of 48 inches or to such depth as required by the Uniform State Fire Prevention and Building Code whichever is greater.
(2) If this standard is deemed to be technically infeasible, rationale and alternative solutions and designs shall be submitted with the completed application for review and approval by the Town Planning Board. Such approval shall be granted if such alternative is deemed acceptable by the Town Planning Board based upon substantial evidence in the record ensuring such alternative provides the level of protection and safety afforded by the standard set forth in Subsection A this section.
(3) In the unlikely event of a stray voltage occurrence, the applicant shall be notified, and shall take corrective action immediately fully remedying such occurrence.
G. Blade sweep. The minimum height of the lowest part of the blade sweep area shall be 30 feet above the highest existing major structure or tree within a one-hundred-fifty-foot radius of the base of the wind energy unit. The total tip height for each wind energy conversion unit cannot exceed 500 feet as measured from the base of the unit to the tip of the unit's longest blade when the blade is at its apogee.
H. Access roads.
(1) In an effort to minimize curb cuts, existing roadways shall be used for access to the site whenever possible.
(2) If existing roadways are not practicable for use as such access, any necessary new roadways shall be constructed in such a way that they are level with the surrounding environment. Unless the landowner upon which such new access road is located signs a waiver requesting such property not be gated, new access roads constructed from existing roadways shall be gated and locked near the intersection of the access road and the existing roadway with breakaway gates allowing emergency access to the roadway.
I. Accessory structures/facilities. Transmission facilities and/or buildings shall be located along roadways, below ridgelines or behind vegetation to screen such facilities and/or buildings from visibility. If such a facility or building is to be located in or along the side of an open field, the facility or building shall be landscaped in such a way as to blend such facility or building in with the surrounding environment.
J. Security. To secure each and every CWECU so constructed within the Town, each such unit shall:
(1) Not have any climbing device of any kind attached to the CWECU closer than 15 feet to the ground; and
(2) Have a locked anti-climbing device installed on the unit.
K. Shadow flicker. The owner shall design each proposed CWECU to comply with the shadow flicker limit at all residences, occupied community buildings and roadways. The shadow flicker exposure limit specifications are:
(1) Maximum of 25 minutes per day of shadow flicker exposure from any individual CWECU or cumulative effect from multiple CWECUs.
(2) Maximum of 25 hours per year of shadow flicker exposure from any individual CWECU or cumulative effect from multiple CWECUs.
(3) If shadow flicker exceeds these conditions, the CWECU or CWECUs causing the shadow flicker shall be shut down until the offending condition is remedied.
L. Environmental contamination by oil or other chemicals. The applicant for a wind energy conversion system, after such application has been approved and before a permit is issued, shall submit the maximum amount letter of credit or other mechanism necessary to ensure the cleanup of any contamination to DEC requirements. The Town Board and the attorney for the Town shall judge the letter of credit or other surety as adequate and satisfactory before such a permit is granted.
M. Below-grade foundations. The foundation top of each CWECU shall be buried to a depth of four feet below ground, or to the specifications of the New York State Department of Agriculture and Markets guidelines, whichever is greater, to enable use of the land for farming/agriculture during the life of the project.
N. Road mitigation. To be approved, the applicant shall submit and deposit with the Town a sum of money equal to an amount determined by the Town Board to offset the estimated direct and indirect adverse impacts on the Town's highway system anticipated to be incurred by the Town as a result of the approval of such application.
O. Decommissioning and restoration. As a condition of approval and prior to the construction of any portion of such wind energy conversion system, each wind energy conversion system shall have a decommissioning plan with related financial surety to be filed with the Town.
(1) Such plan and surety shall include the following:
(a) The anticipated life of the project;
(b) The estimated decommissioning cost in current dollars;
(c) A method and schedule for updating the costs of decommissioning and restoration;
(d) A method of ensuring that funds will be available for decommissioning and restoration; and
(e) The anticipated manner in which the project will be decommissioned and the site restored.
(2) Prior to approval, the application shall be referred to the Town Board for determination of the financial surety required under this subsection.
(3) The applicant shall agree to remove such wind energy conversion system and related facilities if it becomes obsolete or ceases to be used for its intended purpose for a period of 12 consecutive months. The Town Planning Board shall require the applicant to provide a demolition bond or other security acceptable to the Town Board for the purpose of removing such facilities in case the applicant fails to do so as required above. Proof of this bond or similar surety shall be filed with the Town Clerk each year, and recalculated in an amount reflecting the then-current estimated costs for decommissioning such system.
(4) The applicant shall notify the Code Enforcement Officer within 30 days of the discontinuance of use of any CWECS or any portion thereof.
(a) Should the applicant fail to notify the Town Code Enforcement Officer as required in this Subsection O(4), the applicant shall be subject to all penalties provided under this article and the following additional penalties.
(b) A per-day penalty of $200 from the time the applicant should have notified the Code Enforcement Officer as required in this Subsection O(4) to the date the wind energy conversion system or portion thereof is removed or made operational as set forth under Subsection O(6) of this section.
(5) Should a CEWCS or any portion thereof not operate for a total period of 60 days within any ninety-day period, the Town shall notify the applicant that such offending CWECS or portion thereof shall be removed or made operational as provided in Subsection O(7) of this section.
(6) The applicant shall remove any discontinued, decommissioned, obsolete or unused commercial wind energy conversion system or portions thereof and restore the site to preconstruction conditions, or make the wind energy conversion system or portion thereof fully operational, within 180 days of delivery or receipt of the notification set forth in Subsection O(5) of this section.
(7) Prior to the expiration of this time, the applicant may apply to the Town Code Enforcement Officer, and the Code Enforcement Officer may grant, an extension of the time in which such CWECS or portion thereof needs to be removed or made operational, up to an additional time of 180 days. Such extension shall be granted only if the applicant demonstrates good cause that such extension is necessary as a result of uncontrollable events such as weather delays, repair delays or other similar conditions requiring the need for such extension.
(8) Failure to notify and/or remove any discontinued, decommissioned, obsolete or unused CWECS or portion thereof in accordance with this article shall be in violation of this article and subject the applicant to the penalties set forth herein. In addition, the cost of removing the offending CWECS or portion thereof shall be drawn against the financial surety posted by the applicant for demolition or decommissioning of the project as set forth in this section.
(9) Any expense incurred by the Town that exceeds the amount of such financial surety or is not covered by said surety shall be reimbursed by the applicant.
(10) Upon completion of all such removal activities by the Town, any remaining portion of the posted surety shall be returned to the applicant forthwith.
P. Post-installation.
(1) On an annual basis, a post-installation field report identifying the CWECU or CWECS's generation of electricity, and impacts upon the environment, including but not limited to any adverse drainage patterns then existing, sites of erosion in vicinity of the system, and other potential adverse environmental conditions, shall be submitted by the applicant to the Town Board. This report shall also include all complaints and remedial actions logged by the applicant and any other reasonable items that may be requested by the Town Planning Board. This report shall be filed annually with the Town Clerk.
(2) If it is determined that any CWECS or portion thereof is operating outside the parameters of the zoning requirements and conditions of approval, the applicant shall be notified, and any and all necessary remedies implemented. If the problem cannot be remedied within an appropriate amount of time, based on its nature and severity, the Code Enforcement Officer may require the CWECS or a portion thereof be shut down until such repairs can be made. If the applicant and the Code Enforcement Officer are unable to agree on an appropriate time or method for remedying such problem, either party shall ask the Town Board to determine such a reasonable time or method of remedy.
(3) Safety issues deemed to be of an imminent significant threat to the health, safety and/or welfare of any person affected by the wind energy conversion system or any portion thereof as determined by the Code Enforcement Officer shall require the immediate shut down of the CWECS or portion thereof until corrective action is taken and the imminent significant threat fully mitigated.
Operating considerations.
A. Landscaping. Upon completion of installation, the site shall be returned as close as possible to its natural state, including, but not limited to, restoring the subsoil and topsoil to preconstruction condition and reforestation of at least 40% for any woodlands that have been cleared.
B. Building and grounds maintenance. Any damaged or unused parts shall be removed from the premises within 30 days or stored in a locked on-site storage building. All maintenance equipment, spare parts, oil or chemicals (cleaning, pesticides, fuels), shall also be stored in said on-site locked storage building.
C. Ownership changes. If the ownership of a CWECU or CWECS changes, the approved permit shall remain in full force and effect. All requirements of the approved permit, including bonding, letters of credit or continuing certification requirements of the original owner shall continue to be obligations of the succeeding owners. All such changes in ownership shall be registered with the Town Clerk within 30 days of such transfer, and any emergency contact information posted shall be changed accordingly.
D. Commercial wind energy conversion unit modifications. Any and all modifications, additions, deletions or changes to a CWECU or CWECS, whether structural or not, shall not be made until it has been approved by the Town Planning Board.
E. Repairs. However, prior approval as set forth in Subsection D of this section shall not be required for repairs which become necessary in the normal course of operation of the CWECU or CWECS, become necessary as a result of natural forces such as wind or ice, as a result of any other acts of God, or for repairs caused by the malicious or negligent acts of any persons or the behavior of animals.
Penalties for offenses.
Any person who violates or knowingly permits the violation of this article or any amendment thereto shall be deemed to have committed a violation and shall be subject to the following penalties: a minimum of $25 to a maximum of $350 per day or 15 days imprisonment, or both. Every week such violation is determined to have existed shall be deemed to constitute a separate and additional offense for which the person may be subject to the penalties set forth herein.
