Concord City Zoning Code
ARTICLE XXVI
Supplemental Use Regulations
§ 150-140 Temporary structures or uses.
The following temporary structures shall be deemed to be permitted uses in all zoning districts:
A.
Temporary structures or uses incidental to construction work, including a nonilluminated sign not exceeding 12 square feet in area of any contractor, engineer or architect, shall be permitted for a period of time not to exceed one year, provided that any such structure shall be removed forthwith upon the completion or abandonment of the construction work. Any extension of said time limit shall require the approval of the Concord Zoning Board of Appeals.
B.
The temporary use of a dwelling as a model home shall be permitted for a period of time not to exceed one year. Any extension of said time limit shall require the approval of the Concord Zoning Board of Appeals.
§ 150-141 Limitations on automotive use areas.
Except for farms or single-family or two-family residences, any portion or a lot used for open off-street parking or reservoir space or for open sales, service or storage areas for motor vehicles, contractor's equipment or boats shall be deemed to be an automotive use area and shall be subject to the following requirements:
A.
Surfacing. Every automotive use area and access driveway thereto shall be surfaced with a durable material and shall be so graded and drained as to dispose of surface water accumulation.
B.
Lighting. Any fixture used to illuminate any automotive use area shall be so arranged as to direct the light away from the street or road and away from adjoining premises in any R District.
C.
Screening. Every automotive use area, except off-street parking areas for more than five vehicles, must be screened from any adjoining lot in any R District:
(1)
Along a street or road line, by a live planting strip five feet wide; provided, however, that no shrub planting or tree foliage shall be placed or maintained which obstructs vision at an elevation between three feet and seven feet above the street or road level. Such screening may be interrupted by normal entrances and exits.
(2)
Along a rear lot line or an interior side lot line which abuts an existing or future rear yard or side yard on such adjoining lots, by a compact evergreen hedge which will reach a height of five feet within three years or by a solid, uniformly painted fence or an unpierced masonry wall five feet in height. Such screening shall be maintained in good condition at all times.
D.
Access. No entrance or exit to any automotive use area shall be permitted within 30 feet of any intersecting street or road lines, and, except for off-street parking areas for uses permitted in any R District requiring fewer than 10 parking spaces, no entrance or exit shall be permitted within 20 feet of a lot in any R District.
E.
Restriction on use. No automotive use area shall be used for auto wrecking or for the storage of wrecked, partially dismantled or junked vehicles or equipment or motor vehicles which do not qualify for New York State motor vehicle registration.
§ 150-142 Lots divided by district boundaries.
A.
Where a lot is divided by any zoning district boundary so as to be in more than one zoning district and where such lot was an existing lot when such district boundary was established, a conforming use, occupying 50% or more of the area of said lot and having a street or road frontage in the district where permitted, may be extended on such lot not more than 25 feet (measured perpendicular to the district boundary) into any district where such use is not permitted.
B.
Such use shall be subject to all regulations applicable to the district where permitted.
§ 150-143 Lot frontage on street for dwellings.
No dwelling shall be erected on any lot, which lot does not have immediate frontage on a street or road, as defined in this chapter, unless the owner of said lot has a permanent right-of-way from the street or road with a minimum width of 50 feet.
§ 150-144 Screening of service entrances in C or M District.
Where a loading or unloading platform or any service entrance in a C or M District faces any lot line which coincides with any R District boundary, such platform or service entrance shall be effectively screened from such R District in a manner approved by the Concord Town Board.
§ 150-144.1 Utility-scale wind energy conversion systems.
[Added 3-6-2008 by L.L. No. 3-2008]
A.
Intent and purpose.
(1)
The Town of Concord recognizes that wind energy is an abundant, renewable and nonpolluting energy resource of the Town and that its conversion to electricity will reduce dependence on nonrenewable energy resources and decrease air and water pollution that result from the use of conventional energy sources.
(2)
The purpose of these regulations for utility-scale wind energy conversion systems (WECS) is to ensure that development of these facilities will have a minimal impact on adjacent properties and to protect the health, safety and welfare of residents of the Town.
B.
Application process.
(1)
Prior to construction of any utility-scale WECS, the project proponent shall first obtain a special use permit and site plan approval from the Town of Concord Town Board and a building permit from the Town's Code Enforcement Officer.
(2)
Initial application materials. In order to ensure Town Board input into the parameters of the studies that are required in Subsection B, there will be a two-stage application process. Initially, in addition to the application requirements of the Zoning Ordinance, all applications for a utility-scale WECS shall include the following information:
(a)
Name and address of the applicant.
(b)
Evidence that the applicant is the owner of the property or has the written permission of the owner to make such an application.
(c)
A site plan drawn in sufficient detail to show the following:
[1]
Location of the tower(s) on the site and the tower height, including blades, rotor diameter and ground clearance.
[2]
Utility lines, both aboveground and belowground, within a radius equal to the proposed tower height, including the blades.
[3]
Property lot lines and the location and dimensions of all existing structures and uses on site within 1,000 feet of the wind energy conversion systems.
[4]
Surrounding land use and all off-site structures within 1,000 feet, or 2.25 times the tower height, whichever is greater, of the wind energy conversion systems.
[5]
Description of the various structural components of the tower construction, including the base and footing.
[6]
Existing topography.
[7]
Proposed plan for grading and removal of natural vegetation.
(d)
Full SEQRA environmental assessment form.
(e)
Such additional information as may be reasonably required by the Town Engineer, Town Planner or Town Board for an adequate assessment of the proposed project.
(f)
The Town Board may determine that not all of these application materials are necessary for a particular proposed project.
(3)
Studies and information required prior to decision on the application, which would include a detailed property value study of the surrounding areas. After a review of the environmental assessment form and the proposed project, the Town Board shall provide direction to the applicant on the methodology and parameters of the studies to be provided, below:
(a)
Proposed plan for site restoration after construction, prepared according to New York State Department of Agriculture and Markets and New York State Department of Environmental Conservation guidelines.
(b)
Plan for ingress and egress to the proposed project site, including:
[1]
A description of the access route from the nearest state-county-and/or Town-maintained roads.
[2]
Road surface material, stating the type and amount of surface cover.
[3]
Width and length of access route.
[4]
Dust control procedures during construction and transportation.
[5]
A road maintenance schedule or program.
(c)
Detailed construction plan, including but not limited to construction schedule; hours of operation; designation of heavy haul routes; a list of material, equipment and loads to be transported; identification of temporary facilities intended to be constructed; and contact representative in the field with name and phone number.
(d)
Erosion and sediment control plan. (A SWPPP will meet this requirement.)
(e)
Specific information on the type, size, height, rotor material, rated power output, performance, safety and noise characteristics of each utility-scale wind turbine model, tower and electrical transmission equipment.
(f)
Photographs and/or detailed drawings of each wind turbine model, including the tower and foundation.
(g)
Visual assessment, including a detailed or photographic simulation showing the site fully developed with all proposed wind turbines and accessory structures. The Town Board shall determine which viewpoints the visual assessment shall include.
(h)
Noise analysis. A noise analysis shall be furnished which shall include the following:
[1]
A description and map of the project's noise-producing features, including the range of noise levels expected and the tonal and frequency characteristics expected. The noise report shall include low frequency, infrasound, pure tone and repetitive/impulsive sound.
[2]
A description and map of the noise-sensitive environment, including any sensitive noise receptors, i.e., residences, hospitals, libraries, schools, places of worship and similar facilities, within 1,000 feet, or 2.25 times the tower height, whichever is greater, from any off-site residence.
[3]
A survey and report prepared by a qualified professional that analyzes the preexisting ambient sound level (including seasonal variation), including but not limited to separate measurements of low frequency and A-weighted noise levels across a range of wind speeds (including near cut-in), turbulence measurements, distance from the turbines, location of sensitive receptors relative to wind direction and analyses at affected sensitive noise receptors located within 1,000 feet, or 2.25 times the height, of the proposed facilities, as identified by the Town Board.
[4]
A description and map showing the potential noise impacts, including estimates of expected noise impacts from both construction and operation, and estimates of expected noise levels at sensitive receptor locations.
[5]
A description of the project's proposed noise-control features, including specific measures proposed to protect workers, and specific measures proposed to mitigate noise impacts for sensitive receptors consistent with the requirements of this section.
[6]
Manufacturers' noise design and field testing data, both audible (dBA) and low frequency (deep bass vibration), for all proposed structures.
(i)
A geotechnical report shall be furnished which shall at a minimum include the following:
[1]
Soils and geologic characteristics of the site, based on on-site sampling and testing, to provide an assessment of the soil suitability for construction of the proposed WECS.
[2]
Foundation design criteria for all proposed structures.
[3]
Slope stability analysis.
[4]
Grading criteria for ground preparation, cuts and fills, soil compaction.
(j)
Engineer's report, prepared by a professional engineer licensed in New York State, that provides information regarding the following potential risks. The results of the engineer's report shall be used to determine the adequacy of setbacks from the property line to mitigate any effects from potential ice throw, tower failure or blade throw.
[1]
Ice throw calculations: a report that calculates the maximum distance that ice from the turbine blades could be thrown and the potential risk assessment for inhabitants and structures. (The basis of the calculation and all assumptions must be disclosed.)
[2]
Blade throw calculations: a report that calculates the maximum distance that pieces of the turbine blades could be thrown and the potential risk assessment for inhabitants and structures. (The basis of the calculation and all assumptions must be disclosed.)
[3]
Catastrophic tower failure: a report from the turbine manufacturer stating the wind speed and conditions that the turbine is designed to withstand and the potential risk assessment for inhabitants and structures (including all assumptions).
[4]
Certification by a registered New York State professional engineer that the tower's design is sufficient to withstand wind loading requirements for structures or as established by the New York State Building Code.
(k)
Lighting plan. The applicant shall submit a lighting plan that describes all lighting that will be required, including any lighting that may be required by the FAA. Such plan shall include, but is not limited to, the planned number and location of lights, light color, whether any such lights will be flashing and mitigation measures planned to control the light so that it is does not spill over onto neighboring properties.
(l)
Shadow flicker study. 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 these 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 problem.
(m)
Study of potential impacts to birds and bats, using methodology approved by the NYSDEC or another agency acceptable to the Town Board.
(n)
Decommissioning and site restoration plan.
(o)
FAA notification: a copy of written notification to the Federal Aviation Administration.
(p)
Utility notification: utility and NYISO interconnection data and a copy of a written notification to the utility or NYISO of the proposed interconnection.
(q)
Study of electromagnetic interference with microwave or other communication or broadcast sources. An application that includes any wind turbine which is located within two miles of any microwave communications link shall be accompanied by a study which identifies any potential impact on microwave or other communication or broadcast services and describes measures that shall be taken to eliminate or mitigate any problem.
(r)
Other information. Such additional information, including a property value study, may be reasonably required by the Town Engineer, Town Planner or Town Board for an adequate assessment of the proposed project.
(s)
The Town Board may determine that not all of these application materials are necessary for a particular proposed project.
(4)
SEQR review. Pursuant to § 617.13 of the New York State Environmental Quality Review Regulations, the Town may hire consultants to assist the Town Board in its review of the potential impacts of a proposed project and the assessment of impacts provided by the applicant. The Town will charge the applicant for the cost of such consultant to the extent allowed in § 617.13.
C.
Standards of operation. In addition to the criteria contained in the Zoning Ordinance, the Town Board shall use the following criteria to evaluate all utility-scale wind energy conversion systems:
(1)
Setbacks. All utility-scale WECS shall comply with the following setbacks:
(a)
All wind turbines and towers shall be set back from property lines a minimum of 1.5 times the height of the structure, including to the tip of the blade, excluding adjoining lot lines where both lots are part of the proposed project.
(b)
All wind turbines and towers shall be set back a minimum of 2,500 feet from the boundaries of any RE, R1, R2, R-12, R-M or R-RB Zoning District.
(c)
All wind turbines and towers shall be set back a minimum of 1,000 feet, or 2.25 times the tower height, whichever is greater, from any off-site residence that exists at the time that an application for a WECS is made to the Town. For purposes of this subsection, a residence shall be considered to be in existence if a building permit for such structure has been issued by the Town's Code Enforcement Officer, even if construction is not yet completed and the residence is not yet occupied.
(d)
All wind turbines and towers shall be set back from all structures and buildings, other than residences, that are in existence at the time of the application, or for which a building permit has been issued, a minimum of 1,000 feet, or 2.25 times the height, of the tower, including to the tip of the blade. The Town Board may, at its discretion, exempt minor structures such as walls, fences, tool sheds and similar minor structures from this setback requirement.
(e)
All wind turbines and towers shall be set back from any public road right-of-way a minimum of 1.5 times the height of the structure, including to the tip of the blade.
(2)
Noise. A utility-scale WECS shall not be approved unless the applicant demonstrates that the proposed project complies with the following noise requirements. In order to enable the Town Board to make this determination, the applicant shall submit the noise assessment required in Subsection B.
(a)
Audible noise standards.
[1]
Audible noise due to wind turbine operations shall not exceed 45 dBA for more than five minutes out of any one-hour time period or exceed 50 dBA for any time period, at the boundary of the proposed project site.
[2]
The sound level from the operation of a utility-scale WECS shall not increase by more than three dBA the nighttime or daytime ambient sound level at any sensitive noise receptors, i.e., residences, hospitals, libraries, schools, places of worship and similar facilities, within 1,000 feet, or 2.25 times the height, of the proposed turbine and/or at other sensitive receptor points that may be identified by the Town Board.
(b)
Low frequency noise. A utility-scale wind energy facility shall not be operated so that impulsive sound below 20 Hz affects the habitability or use of any dwelling unit, hospital, school, library, nursing home or other sensitive noise receptor.
(c)
Noise setbacks. The Town Board may impose a noise setback that exceeds the other setbacks set out in this section if it deems that such greater setbacks are necessary to protect the public health, safety and welfare of the community.
(d)
Within one year of commencement of commercial operation, the project proponent shall submit a noise study of operational conditions to ensure that the project is in compliance with the standards of this section. The study shall be based on receptor points identified during the application review process. In addition to this noise study, the Town Board may require periodic additional noise studies.
(3)
Noise and setback easements. In the event that a utility-scale WECS does not meet a setback requirement or exceeds the noise criteria above, the Town Board may grant a waiver of the setback and/or noise criteria, except for the setback required by Subsection C(1)(a) in the following circumstances:
(a)
Written consent from the affected property owners is presented to the Town Board, stating that they are aware of the WECS and the noise and/or setback limitations contained in this Zoning Ordinance, and that consent is granted to allow noise levels to exceed the maximum limits otherwise allowed and/or allow setbacks less than required; and
(b)
In order to advise all subsequent owners of the burdened property, the consent, in the form required for an easement, has been recorded in the Erie County Clerk's Office describing the benefited and burdened properties. Such easements shall be permanent and shall state that they may not be revoked without the consent of the Planning Board, which consent shall be granted upon either the completion of the decommissioning of the benefited WECS in accordance with this article or the acquisition of the burdened parcel by the owner of the benefited parcel or the WECS.
(4)
Interference with television, microwave and radio reception. The applicant must submit information that the proposed construction of the utility-scale wind energy conversion system will not cause interference with microwave transmissions, cellular transmissions, residential television interference or radio reception of domestic or foreign signals. The applicant shall include specific measures proposed to prevent interference, a complaint procedure and specific measures proposed to mitigate interference impacts.
(5)
Interference with aviation navigational systems.
(a)
The applicant shall provide documentation that the proposed WECS will not cause interference with the operation of any aviation facility.
(b)
The applicant shall provide documentation that the proposed WECS complies with all Federal Aviation Administration (FAA) regulations.
(c)
Locking mechanisms to limit radar interference required. All utility-scale WECS shall include a locking mechanism which prevents the blades from rotating when not producing power in order to limit airport radar interference. This provision does not apply while the WECS is free-wheeling during start-up and shutdown. The Town Board may modify or eliminate the requirement for a locking mechanism if sufficient evidence is presented that no significant airport radar interference will be caused by the utility-scale WECS.
(6)
Safety and security requirements.
(a)
Safety shutdown. Each wind turbine shall be equipped with both manual and automatic controls to limit the rotational speed of the blade within the design limits of the rotor. A manual electrical and/or overspeed-shutdown-disconnect switches shall be provided and clearly labeled on the wind turbine structure. No wind turbine shall be permitted that lacks an automatic braking, governing or feathering system to prevent uncontrolled rotation, overspeeding and excessive pressure on the tower structure, rotor blades and turbine components.
(b)
Grounding. All structures shall be grounded according to applicable electrical codes.
(c)
Wiring. All wiring between the wind turbines and the wind energy facility substation shall be placed underground unless the Planning Board determines that this is not prudent or practicable due to site-specific constraints. The applicant is required to provide a site plan showing the locations of all overhead and underground electric utility lines, including substations for the project.
(d)
Ground clearance. The blade tip of any wind turbine shall, at its lowest point, have ground clearance of not less than 50 feet.
(e)
Climbability. Wind turbine towers shall not be climbable up to 25 feet above ground level.
(f)
Access doors locked. All access doors to wind turbine towers and electrical equipment shall be lockable and shall remain locked at all times when operator personnel are not present.
(g)
Signage. Appropriate warning signage shall be placed on wind turbine towers, electrical equipment and wind energy facility entrances. Signage shall also include two twenty-four-hour emergency contact numbers to the owner of the wind turbine in accordance with local, state and federal codes.
(7)
Ice throw. The Town Board shall determine the acceptable ice throw range based on the activities in the area, location and calculations of the ice throw.
(8)
Fire hazard protection. The applicant shall submit a fire control and prevention program that is appropriate and adequate for the proposed facility. The proposed program may include, but is not limited to, the following:
(a)
Fireproof or fire-resistant building materials.
(b)
Buffers or fire-retardant landscaping.
(c)
Availability of water.
(d)
An automatic fire-extinguishing system for all buildings or equipment enclosures of substantial size containing control panels, switching equipment or transmission equipment, without regular human occupancy.
(e)
Provision of training and fire-fighting equipment for local fire protection personnel and/or other emergency responders.
(9)
Impact on wildlife species and habitat. Development and operation of a utility-scale wind energy facility shall not have a significant adverse impact on endangered or threatened fish, wildlife or plant species or their critical habitats or other significant habitats identified in the Town of Concord Comprehensive Plan and/or the studies and plans of other regional agencies, based on criteria established by the federal or state regulatory agencies, as determined by the Town of Concord Town Board during SEQRA review. The impact of a utility-scale WECS on migratory birds and bats shall be evaluated and mitigated based on SEQRA findings.
(10)
Visual impact.
(a)
No advertising sign or logo shall be placed or painted on any part of any utility-scale wind energy conversion system.
(b)
Wind turbines shall be painted a nonobtrusive (e.g., white, gray or beige) color that is nonreflective. In order to reduce any daytime lighting requirements by the FAA, the Planning Board may require consultation with the FAA to determine an appropriate color for the structures.
(c)
Where more than one wind turbine is proposed, the project shall use wind turbines whose appearance is similar throughout the project to provide reasonable uniformity in terms of overall size, geometry and rotational speed.
(d)
Unless required by the FAA or by the Town of Concord Planning Board, no lighting shall be installed on the WECS turbine or tower, except for ground-level security lighting.
(11)
Shadow flicker. The WECS shall be designed such that the project shall minimize shadow flicker onto adjacent existing residences. Mitigation measures, which may include landscaping, shall be incorporated into any special use permit approval. The required shadow flicker study shall identify areas where shadow flicker may interfere with residences and describe measures that shall be taken to eliminate or minimize the problem.
D.
Decommissioning and site restoration plan and bond.
(1)
The applicant shall submit a decommissioning and site restoration plan, including cost estimate, to the Town Board for its review and approval prior to the approval of any special use permit. The restoration plan shall identify the specific properties it applies to and shall indicate removal of all buildings, structures, wind turbines, access roads and/or driveways and foundations to 3.5 feet below finish grade; road repair costs, if any; and all regrading and revegetation necessary to return the subject property to the condition existing prior to establishment of the utility-scale WECS. The restoration shall reflect the site-specific character, including topography, vegetation, drainage and any unique environmental features. The plan shall include a certified estimate of the total cost (by element) of implementing the removal and site restoration plan. The decommissioning plan shall include information regarding the anticipated life of the project. Any variation from the submitted decommissioning plan must be approved by the Town Board.
(2)
As a condition of special use permit approval, the Town Board shall require the project sponsor to execute and file with the Town Clerk a bond or other form of security acceptable to the Town Board and Town Attorney as to the form, content and manner of execution, in an amount sufficient to ensure the faithful performance of the removal of the tower, wind turbine and other components of the WECS and the restoration of the site subsequent to such removal, in accordance with the approved decommissioning and site restoration plan.
(3)
The sufficiency of such bond shall be confirmed at least every five years by an analysis and report of the cost of removal and site restoration, such report to be prepared by a New-York-State licensed engineer. The project sponsor/operator shall pay the cost of such report. If said analysis and report determines that the amount of the bond in force is insufficient to cover the removal, disposal and site restoration costs, the bond shall be increased to the amount necessary to cover such costs within 10 days of the applicant's receipt of such report. The report and increased amount of the bond shall be filed with the Town Clerk.
(4)
All bond requirements shall be fully funded before a building permit is issued.
(5)
The decommissioning and site restoration bond shall be in effect for the entire duration of the special use permit.
(6)
The applicant and his/her successors, or assigns in interest, shall maintain the required bond funds for the duration of the special use permit.
E.
Road bond.
(1)
Construction of WECS poses potential risks because of the large size of construction and transport (delivery) vehicles and their impact on traffic safety and their physical impact on local roads. Construction and delivery vehicles shall use traffic routes established as part of the application review process. Factors in establishing such corridors shall include: minimizing traffic impacts from construction and delivery vehicles; minimizing WECS-related traffic during times of school bus activity; minimizing wear and tear on local roads; and minimizing impacts on local business operations. Permit conditions may limit WECS-related traffic to specified routes and include a plan for disseminating traffic route information to the public.
(2)
The applicant is responsible for remediation of damage to public roads caused by WECS-related traffic, after completion of the installation of the WECS. To ensure that this remediation occurs, prior to the issuance of a building permit, the project sponsor shall post a public improvement bond in an amount, as determined by the Town Board and Highway Superintendent, sufficient to repair any damage that occurs to Town roads during the construction phase of the project. The Town Attorney shall approve the form of the bond.
(3)
In the event that any postconstruction maintenance or replacement of components which could affect Town roads is necessary, the project owner/operator shall notify the Town and a new bond for any potential damage to Town roads shall be posted.
F.
Certification. The applicant shall provide the following certifications:
(1)
Certification of structural components. The foundation, tower and compatibility of the tower with the rotor and rotor-related equipment shall be certified, in writing, by a structural engineer registered in New York. The engineer shall certify compliance with good engineering practices and compliance with the appropriate provisions of the Building Code that have been adopted in New York State. This shall be provided prior to the issuance of the special use permit.
(2)
Postconstruction certification. After completion of construction of the wind energy conversion system, 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. This certification shall be provided to the Building Inspector and shall be maintained in a permanent file.
(3)
Certification of electrical system. The electrical system shall be certified, in writing, by an electrical engineer registered in New York. The engineer shall certify compliance with good engineering practices and with the appropriate provisions of the Electrical Code that have been adopted by New York State. This shall be provided prior to the issuance of the special use permit.
(4)
Certification of rotor overspeed control. The rotor overspeed 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. This shall be provided prior to the issuance of the special use permit.
(5)
Certification of seismic design. The applicant shall provide postconstruction certification from a licensed professional engineer registered in the State of New York that the design and construction protects against anticipated seismic hazards.
G.
Liability insurance.
(1)
Prior to the issuance of a building permit, the project sponsor shall provide proof, in the form of a duplicate insurance policy or a certificate issued by an insurance company, that liability insurance has been obtained to cover damage or injury which might result from the failure of the tower, turbine or other component of the WECS. Such policy shall provide coverage of not less than $5,000,000 and shall name the Town of Concord as a coinsured. The sponsor shall provide the Town annually with proof of continuing coverage in compliance with this requirement.
(2)
Liability insurance shall be carried for the life of the project, through decommissioning. Proof of liability insurance shall be filed annually with the Town Clerk. Such policy shall provide coverage of not less than $5,000,000 and shall name the Town of Concord as a coinsured. The sponsor shall provide the Town annually with proof of continuing coverage in compliance with this requirement.
H.
Transfer of ownership.
(1)
If the ownership of the WECS facility changes, the new owner shall present proof to the Town Clerk that all the required bonds and insurance policies remain in full force and effect. The new owner shall provide a written statement that he/she is aware of the conditions and requirements of the special use permit, which continue to govern the operation of the facility.
(2)
In order to ensure compliance with this provision, the person/company to whom the special use permit is originally issued, and subsequent owners, shall provide notification to the Town Clerk 30 days prior to the change of ownership.
I.
Inspections. Unless waived by the Town Board, wind turbines or towers over 150 feet in height shall be inspected by a New-York-State-licensed professional engineer, who has been approved by the Town, annually or at any other time upon a determination by the Town's Building Inspector that the wind turbine, tower or pole may have sustained structural damage. A copy of the inspection report shall be submitted to the Town's Building Inspector. Any fee or expense associated with this inspection shall be borne entirely by the permit holder.
J.
Permit revocation.
(1)
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, all other standards and requirements of this section and other permit conditions.
(2)
Should a WECS become inoperative or should any part of the WECS be damaged or become unsafe or should a WECS violate a permit condition or violate a standard or requirement of this section, the owner/operator shall remedy the situation within 90 days after written notice from the Code Enforcement Officer. The Code Enforcement Officer or Town Board may extend this period by another ninety-day period, for a total period not to exceed 180 days.
(3)
Upon notice from the Code Enforcement Officer or Town Board that the WECS is not repaired or made operational or brought into permit compliance after said notice pursuant to Subsection J(2) above, the Town Board shall hold a public hearing at which both the public and the operator/owner are given the opportunity to be heard and present evidence, including a plan to come into compliance. Following the close of the public hearing, the Town Board may either:
K.
Decommissioning of WECS.
(1)
Nonfunctional and/or inoperative WECS defined.
(a)
If any utility-scale WECS remains nonfunctional or inoperative for a continuous period of one year, the permittee shall remove the WECS at his/her own expense and restore the site, in accordance with the approved decommissioning and site restoration plan. A utility-scale WECS shall be deemed nonfunctional and/or inoperative if it has not generated power within the preceding 12 months.
(b)
The Code Enforcement Officer may request that the applicant periodically submit documentation reporting the power output generated by the WECS.
(2)
Use of decommissioning bond.
(a)
Any nonfunctional or inoperative WECS, or any WECS for which the special use permit has been revoked, shall be removed from the site and the site restored in accordance with the approved decommissioning and site restoration plan within 90 days of the date on which the facility becomes nonfunctional or inoperative, as defined above, or of the revocation of the special use permit.
(b)
If removal of the WECS is required and the applicant, permittee or successors fails to remove the WECS and restore the site in accordance with the approved decommissioning and site restoration plan, the Town Board may contract for such removal and restoration and pay for the removal and restoration from the posted decommissioning and site restoration bond.
(c)
If the bond is not sufficient, the Town shall charge the permit holder for the costs over and above the amount of the bond.
L.
Planning Board action.
(1)
The Planning Board may recommend to the Town Board to grant the special use permit, deny the special use permit or grant the special use permit with written stated conditions. Denial of the special use permit shall be by written decision based upon substantial evidence submitted to the Board. Upon issuance of the special use permit, the applicant shall obtain a building permit for each tower.
(2)
Prior to issuing a special use permit for a utility-scale WECS, the Planning Board shall make all of the following findings:
(a)
The proposed utility-scale WECS project is consistent with the Town of Concord Code.
(b)
The proposed utility-scale WECS project will not unreasonably interfere with the orderly land use and development plans of the Town of Concord.
(c)
That the benefits to the applicant and the public of the proposed utility-scale WECS project will exceed any burdens to the Town and residents therein.
(d)
That the proposed utility-scale WECS project will not be detrimental to the public health, safety or welfare of the community.
(e)
That the proposed utility-scale WECS project complies with all required provisions of the Town's Zoning Ordinance, or will comply with those requirements based on conditions that may be attached to any approval, unless variances have been properly granted by the Town of Concord Zoning Board of Appeals.
M.
Amendments to approved special use permit. Any changes or alterations to the wind energy conversion system, after approval of the special use permit and site plan, shall require amendment to the special use permit. Such amendment shall be subject to all the requirements of this section.
N.
New York State Real Property Tax Law exemption. The Town of Concord reserves the right to, by local law, provide that no exemption pursuant to the provisions of the New York State Real Property Tax Law (RPTL) § 487 shall be applicable within its jurisdiction.
§ 150-144.2 Small-scale wind energy conversion systems.
[Added 3-6-2008 by L.L. No. 3-2008]
A.
Intent and purpose.
(1)
The Town of Concord recognizes that wind energy is an abundant, renewable and nonpolluting energy resource of the Town and that its conversion to electricity will reduce dependence on nonrenewable energy resources and decrease air and water pollution that result from the use of conventional energy sources.
(2)
The purpose of these regulations is to provide standards for small-scale wind energy conversion systems (WECS) that are designed for on-site home, farm and small commercial use and that are primarily used to reduce on-site consumption of utility power. The intent of this section is to encourage the development of small-scale WECS and to ensure that development of these facilities will have a minimal impact on adjacent properties and to protect the health, safety and welfare of residents of the Town.
B.
Application process. Prior to construction of any small-scale wind energy conversion system, the project proponent shall first obtain a special use permit and site plan approval from the Town of Concord Town Board and a building permit from the Town's Code Enforcement Officer.
(1)
All applications for a small-scale WECS shall include the following information:
(a)
Name and address of the applicant.
(b)
Evidence that the applicant is the owner of the property involved or has the written permission of the owner to make such an application.
(c)
A site plan drawn in sufficient detail to show the following:
[1]
Location of the tower(s) on the site and the tower height, including blades, rotor diameter and ground clearance.
[2]
Property lot lines and the location and dimensions of all existing structures and uses on site within 300 feet of the wind energy conversion systems.
[3]
Dimensional representation of the various structural components of the tower construction, including the base and footing.
[4]
Certification by a licensed 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 Building Code.
(d)
Evidence that the proposed tower height does not exceed the height recommended by the manufacturer or distributor of the system, provided by a licensed New York State professional engineer.
(e)
Turbine information: specific information on the type, size, height, rotor material, rated power output, performance, safety and noise characteristics of the residential wind turbine and tower.
(f)
Photographs or detailed drawings of each wind turbine model, including the tower and foundation.
(g)
Grading plan and erosion and sedimentation control plan.
(h)
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 adopted by New York State.
(i)
Sufficient information demonstrating that the system will be used primarily to reduce on-site consumption of electricity from the grid.
(j)
Written evidence that the electric utility service provider that serves the proposed site has been informed of the applicant's intent to install an interconnected, customer-owned electricity generator, unless the applicant does not plan, and so states in the application, to connect the system to the electricity grid.
(k)
Environmental assessment form.
(l)
Such additional information as may be reasonably requested by the Planning Board for a complete understanding of the proposed project.
(m)
The Planning Board may determine that not all of these applications are necessary for a particular proposed project.
(2)
The Code Enforcement Officer shall evaluate all applications. The Code Enforcement Officer is authorized to issue a zoning permit for all small-scale WECS that meet the following standards. Upon issuance of a zoning permit, the applicant shall be required to obtain a building permit prior to installation. In order to be approved by the Code Enforcement Officer, all small-scale WECS must conform to all of the following standards:
(a)
The WECS shall be located on a lot that is a minimum of 1 1/2 acres in size.
(b)
The WECS shall not be located on any ridgeline designated as significant on the Town of Concord Map.
(c)
Only one small-scale WECS per lot shall be permitted.
(d)
The turbine, measured to the apex of the blade, is not taller than 150 feet.
(e)
The maximum turbine output, as shown by the manufacturer's rated capacity, shall not exceed 10 kW per hour.
(f)
The small-scale WECS shall be set back a minimum of 1.5 times the total height of the WECS from:
(g)
In order to reduce visual impact, the WECS shall be painted a nonreflective, unobtrusive color that blends the system and its components into the surrounding landscape to the greatest extent possible.
(h)
Lighting. Exterior lighting on any structure associated with the system shall not be allowed, except lighting that is specifically required by the Federal Aviation Administration (FAA).
(i)
Signage. No advertising sign or logo shall be placed or painted on any turbine or tower. The Town Board may allow the placement of the manufacturer's logo on the ground-level structure in an unobtrusive manner.
(j)
Safety and security requirements. All small-scale WECS shall adhere to the following safety and security requirements:
[1]
Safety shutdown. Each wind turbine shall be equipped with both manual and automatic controls to limit the rotational speed of the blade within the design limits of the rotor. The conformance of rotor and overspeed control design and fabrication with good engineering practices shall be certified by the manufacturer.
[2]
Grounding. All structures which may be charged with lightning shall be grounded according to applicable electrical code.
[3]
Wiring. All wiring associated with the wind energy facility shall be installed underground within the fall zone. This standard may be modified by the Planning Board if the terrain is determined to be unsuitable due to reasons of excessive grading, biological impacts or similar factors.
[4]
Ground clearance. The blade tip of any wind turbine shall, at its lowest point, have ground clearance of not less than 30 feet.
[5]
Climbability. Wind turbine towers shall not be climbable up to 15 feet above ground level and/or other appropriate methods of access control shall be provided.
[6]
Anchor points for guy wires. Anchor points for any guy wires for a system tower shall be located on 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 three to eight feet above the ground. The minimum setback for the guy wire anchors shall be 10 feet from the property boundary.
(k)
The site drainage and erosion control plan is deemed adequate by the Town Engineer.
C.
Permit issued by the Town Board. Pursuant to the procedures and standards contained in this subsection, the Town Board may issue a special use permit to allow a small-scale WECS where the maximum turbine output, as shown by the manufacturer's rated capacity, exceeds 10 kW per hour, but does not exceed 100 kW per hour.
(1)
Application requirements. An applicant for a small-scale WECS that has an output exceeding 10 kW per hour shall apply to the Town Board for a special use permit, following the procedures outlined in the Zoning Ordinance. Application materials shall include:
(2)
Application review. The Town Board shall review the application following the procedures contained for a special use permit in the Zoning Ordinance.
(3)
Standards for small-scale WECS.
(a)
Minimum lot size. A small-scale WECS shall be located on a lot that is a minimum of 1 1/2 acres in size.
(b)
Significant ridgelines. A WECS shall not be located on any ridgeline designated as "significant" on the Town of Concord Map.
(c)
Only one small-scale WECS shall be allowed per lot. The system shall be primarily used to reduce the on-site consumption of electricity.
(d)
Height. The turbine, measured to the apex of the blade, is not taller than 150 feet.
(e)
Capacity. The maximum turbine output, as shown by the manufacturer's rated capacity, shall not exceed 100 kW per hour.
(f)
Setbacks. The small-scale WECS shall be set back a minimum of 1.5 times the total height of the WECS from:
(g)
Visual impact. In order to reduce visual impact, the WECS shall be painted a nonreflective, unobtrusive color that blends the system and its components into the surrounding landscape to the greatest extent possible.
(h)
Lighting. Exterior lighting on any structure associated with the system shall not be allowed, except lighting that is specifically required by the Federal Aviation Administration (FAA).
(i)
Signage. No advertising sign or logo shall be placed or painted on any turbine or tower. The Town Board may allow the placement of the manufacturer's logo on a ground-level structure in an unobtrusive manner.
(j)
Safety and security requirements. All small-scale WECS shall adhere to the following safety and security requirements:
[1]
Safety shutdown. Each wind turbine shall be equipped with both manual and automatic controls to limit the rotational speed of the blade within the design limits of the rotor. The conformance of rotor and overspeed control design and fabrication with good engineering practices shall be certified by the manufacturer.
[2]
Grounding. All structures which may be charged with lightning shall be grounded according to applicable electrical codes.
[3]
Wiring. All wiring associated with the wind energy facility shall be installed underground within the fall zone. This standard may be modified by the Planning Board if the terrain is determined to be unsuitable due to reasons of excessive grading, biological impacts or similar factors.
[4]
Ground clearance. The blade tip of any wind turbine shall, at its lowest point, have ground clearance of not less than 30 feet.
[5]
Climbability. Wind turbine towers shall not be climbable up to 15 feet above ground level and/or other appropriate methods of access control shall be provided.
[6]
Anchor points for guy wires. Anchor points for any guy wires for a system tower shall be located on 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 three to eight feet above the ground. The minimum setback for the guy wire anchors shall be 10 feet from the property boundary.
[7]
Signage. 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.
(k)
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 related to the construction of the small-scale wind energy conversion system. If all such approvals have not been received at the time that the Planning Board considers the application for special use permit, receipt of these other agency approvals shall be a condition to be completed prior to the issuance of a building permit.
(l)
Noise standard.
[1]
Audible noise standard. Wind turbine operations shall not cause the noise level at the boundary of the proposed project site to exceed 45 dBA for more than five minutes out of any one-hour time period or to exceed 50 dBA for any time period. If the ambient noise level in the vicinity of the WECS already exceeds this standard, the operation of the WECS shall not increase the nighttime or daytime ambient sound level at an adjacent residence by more than 3 dBA.
[2]
Low-frequency noise. A small-scale wind energy facility shall not be operated so that impulsive sound below 20 Hz adversely affects the habitability or use of any dwelling unit, hospital, school, library, nursing home or other sensitive noise receptor.
(m)
Interference with television, microwave and radio reception. The wind energy conversion energy system shall be operated such that no disruptive electromagnetic interference is caused. If it is demonstrated that a system is causing harmful interference, the system operator shall promptly mitigate the harmful interference or cease operation of the system.
(n)
Erosion control. Prior to granting a special use permit for a small-scale WECS, the Planning Board shall determine that the erosion and sedimentation control plan is adequate.
(4)
Planning Board action on application.
(a)
The Planning Board may recommend to the Town Board to grant the special use permit, deny the special use permit or grant the special use permit with written stated conditions. Denial of the special use permit shall be by written decision based upon substantial evidence submitted to the Board. Upon issuance of the special use permit, the applicant shall obtain a building permit for the small-scale WECS prior to installation.
(b)
Prior to issuing a special use permit for a small-scale WECS, the Planning Board shall make all of the following findings:
[1]
The proposed WECS project is consistent with the Town of Concord Code.
[2]
The proposed WECS project will not unreasonably interfere with the orderly land use and development plans of the Town of Concord.
[3]
The proposed WECS project will not be detrimental to the public health, safety or welfare of the community.
[4]
The proposed WECS project complies with all required provisions of the Town's Zoning Ordinance, including the standards contained in Subsection C(3), or will comply with those requirements based on conditions that may be attached to any approval, unless variances have been properly granted by the Town of Concord Zoning Board of Appeals.
(5)
Amendment to approved special use permit. Any changes or alterations to the wind energy conversion system, after approval of the special use permit, shall require amendment to the special use permit by the Town Board. Such amendment shall be subject to all the procedural requirements and standards of this section.
(6)
Permit revocation. Failure to abide by and faithfully comply with the standards of this section and with any and all conditions that may be attached to the granting of the special use permit shall constitute grounds for the revocation of the permit, after a public hearing.
D.
Abandonment of use.
(1)
All small-scale WECS shall be maintained in good condition and in accordance with all requirements of this section.
(2)
Any WECS which is not used for 12 consecutive months shall be deemed abandoned and shall be dismantled and removed from the property at the owner's expense. The Town reserves the right to dismantle the structure and to charge back the cost of this removal to the property owner. If unpaid, this cost will be added as a charge to the tax levy of the property.
(3)
Failure to abide by and faithfully comply with the standards of this section and with any and all conditions that may be attached to the granting of the special use permit shall constitute grounds for the revocation of the permit, after a public hearing.
E.
Assessment. A small-scale wind energy conversion system shall be subject to assessment by the Town of Concord.