Dartmouth City Zoning Code
ARTICLE 41
Land-Based Commercial Wind Turbine
§ 375-41.1 Purpose and intent.
This Bylaw is intended to encourage the appropriate development of wind resources in the Town of Dartmouth in a manner consistent with preserving the environmental quality of the Town. This Bylaw pertains to land-based Commercial-size wind energy conversion facilities, as defined below. Article 40 of the Zoning Bylaws pertains to Residential-size wind energy conversion facilities, as defined below. Article 42 of the Zoning Bylaws pertains to Municipal wind energy conversion facilities, as defined below.
Given the Town's location on the South Coast in a generally favorable wind environment, there needs to be a set of procedures for review and approval of proposed Commercial-size wind energy conversion projects so that the potential of the wind can be realized in an expeditious and responsible manner.
§ 375-41.2 Definitions.
Area surrounding a wind turbine to be kept free of residences or places of business as determined by the Special Permit Granting Authority. See § 375-41.3C(2)(b).
A wind energy conversion facility (WECF) having a rated electrical power output greater than 10 kilowatts, other than a Municipal WECF as defined below.
Energy generation that is located at or near the end-user.
The effect of moving, periodic shadows cast on a residence or place of business by the rotating blades of a WECF at those times when the sun is shining and is aligned with the WECF and a residence or place of business.
Horizontal-axis wind turbine.
The height of a HAWT measured vertically from the natural grade at the base of the tower to the centerline of the rotor.
A wind energy conversion facility (WECF) located on Town-owned property designed to provide at least 50% of its electrical output, or of the value thereof, for the use or benefit of the Town of Dartmouth and without regard to the ownership of the structure or equipment. (Municipal WECFs are not covered by this Bylaw; see Article 42 of the Zoning Bylaws.)
The frame and housing at the top of a HAWT tower that encloses the gearbox, generator, and other accessories, and protects them from the weather.
A wind energy conversion facility (WECF) having a rated electrical power output less than or equal to 10 kilowatts, other than a Municipal WECF as defined above. (Not covered by this Bylaw; see Article 40.)
The blades and hub of the wind turbine that rotate during turbine operation.
The shadow cast on a residence or place of business by a WECF, whether the WECF is in operation or not.
The Special Permit Granting Authority (SPGA) for the Town of Dartmouth shall be the Select Board of the Town and shall have the authority to issue Special Permits for wind energy conversion facilities.
The group designated in § 375-41.8A of this Bylaw with the authority to review applications for Special Permits for wind energy conversion facilities and to make recommendations on such applications to the SPGA.
The height of a HAWT measured from the natural grade at the base of the tower to the tip of a blade at its highest point, or the maximum height of a vertical-axis wind turbine (VAWT).
The structure that supports the turbine, rotor, generator, and accessory equipment. The tower may be a monopole or lattice design, with or without guy wires depending on the height and other factors.
Vertical-axis wind turbine; sometimes called a Darrieus-type wind turbine.
The distance measured at grade from the center of the base of the tower to the nearest property line.
All equipment, machinery and structures used in connection with the conversion of wind energy to electricity. This includes, but is not limited to, all transmission, storage, collection and supply equipment, substations, network of cabling, transformers, site-access and service roads, and machinery associated with equipment. A wind energy conversion facility may consist of one or more wind turbines.
Tower used for supporting anemometers, wind vanes and other equipment to assess the wind resource at set heights above the ground. (Not covered by this Bylaw; see Bylaw Article 40.)
Any electromechanical device that converts kinetic energy of the wind into rotational energy to turn an electrical generator shaft. Wind turbine facilities usually consist of a horizontal-axis rotor, nacelle and supporting tower (HAWTs). Both HAWTs and VAWTs of commercial size are covered by this Bylaw.
§ 375-41.3 Use regulations; site control; dimensional requirements.
Use regulations.
All WECFs shall require a Special Permit from the Special Permit Granting Authority, defined as the Select Board. Subsequently, a building permit shall be required for all WECFs in accordance with the Special Permit and the standards of this Bylaw.
The construction of any commercial-size WECF shall be permitted only in the General Industrial and Limited Industrial Districts of the Town, provided the proposed use complies with all Dimensional and Special Permit Regulations set forth under §§ 375-41.3 and 375-41.4 of this Bylaw (unless waived by the SPGA), and the application conforms to the letter and the spirit of the provisions of this Bylaw. Commercial-size WECF shall be prohibited in all other Districts and shall not be allowed in those Districts by use variance.
Site control. The applicant shall submit documentation of the legal right to install and use the proposed facility at the time of application for a Special Permit. Documentation should also include proof of control over the clear areas, if required under Subsection C(2). "Control" shall mean the legal authority to prevent the use of any structure within the clear area for a residence or place of business. If the property is to be leased or subject to an easement, the applicant shall provide a copy of the lease or easement instrument.
Dimensional requirements. All WECFs shall comply with the requirements set forth in this section, unless those requirements are explicitly waived by the SPGA as part of the Special Permit review process.
Height. The height of any commercial-size WECF shall be constrained by the WECF-setback requirement as described in Subsection C(2)(b), which must accommodate the dimensions of the applicant's property, and the clear area requirement, as stated in Subsection C(2)(c), if applicable. The SPGA may allow this height to be exceeded as part of the Special Permit process if the project applicant can demonstrate that the additional height is needed and that the additional benefits of the higher tower outweigh any increased adverse impacts. However, in no case shall the tower height of the WECF exceed 330 ft (100 m). Monopole towers, as opposed to lattice-type structures, are the preferred type of support for commercial-size HAWT wind machines.
WECF-setback and clear area.
Each WECF and its associated equipment shall comply with the building setback provisions of the zoning district in which the facility is located.
In order to ensure public safety and to protect the interests of neighboring property owners, a setback shall be required from the nearest property line to the center of the base of the tower equal to two times the hub height of the WECF. This is the WECF-setback requirement.
In the case of a WECF intended to supply electricity to a commercial, business or institutional facility, the applicant shall be required to maintain a clear area free of all structures containing residences or places of business as determined by the Special Permit Granting Authority. The clear area shall comprise the area of a circle centered on the center of the tower and having a radius equal to the total height of the WECF. This is the clear area requirement. The SPGA may reduce the clear area requirement at its discretion, based on site-specific considerations, if the project is otherwise consistent with the Special Permit Granting Regulations.
§ 375-41.4 Special permit granting regulations.
The SPGA shall only grant a Special Permit for a commercial WECF if it finds that the proposal complies with the provisions of this bylaw or has explicitly been granted waivers from those provisions. Furthermore, the SPGA may impose additional conditions, as appropriate, to promote the general purposes and intent of this Bylaw and the Zoning Bylaws.
General. Proposed WECFs shall be consistent with all applicable Town, state and federal requirements, including, but not limited to, all applicable electrical, construction, noise, safety, environmental and communications requirements. The provisions of this bylaw are intended to insure that all proposed WECFs shall not be detrimental to adjacent land uses, and shall not pose a hazard to the general health, safety or welfare of the community.
Visual impact. The applicant shall minimize any impact on the visual character of surrounding neighborhoods and the community by painting the WECF a non-reflective color that blends with the surroundings.
Equipment shelters. All equipment necessary for monitoring and operation of the WECF should be secured within the wind turbine tower or base. If this is infeasible, ancillary equipment may be located outside the tower or base, provided such equipment is either contained within an underground vault, enclosed within a separate structure, or hidden behind a year-round landscape or vegetated buffer.
Lighting and signage. Unless required by the Federal Aviation Administration (FAA), wind turbines shall not be lighted on a continuous basis. Lighting of equipment, structures, and any other facilities on site (except lighting required by the FAA) shall be shielded from abutting properties. The WECF shall be free of all company logos, advertising, and similar promotional markings. Signs on the facility shall be limited to those needed to warn of any danger; and educational signs providing information on the technology. All signs shall comply with the requirements of the Town's sign regulations.
Noise. The WECF shall conform to Massachusetts noise regulation 310 CMR 7.10. This Bylaw incorporates the Noise Level Policy established by the Massachusetts Department of Environmental Protection for implementing this regulation. The policy specifies that the ambient sound level, measured at the property line of the facility or at the nearest inhabited buildings, shall not be increased by more than 10 decibels weighted for the "A" scale or 10 dB(A) due to the sound from the facility during its operating hours.
Wetlands. WECFs shall be sited in a manner consistent with all applicable local and state wetlands regulations. Wetland buffer areas may be used for the purposes of providing a clear area, if applicable.
Land clearing/open space/rare species. WECFs shall be designed to minimize land clearing and fragmentation of open space areas and shall avoid permanently protected open space when feasible. Wind turbines should be sited to make use of previously developed areas wherever possible. WECFs shall also be sited in a manner that does not have significant negative impacts on rare species in the vicinity (including but not limited to avian species, bats, etc.).
Stormwater. Stormwater run-off and erosion control shall be managed in a manner consistent with all applicable state and local regulations.
Shadowing/flicker. WECFs shall be sited in a manner that does not result in significant shadowing or flicker impacts. The proponent has the burden of demonstrating that this effect will not have significant adverse impact through the use of computer modeling and simulation of the seasonal variations of the shadows and flicker effects.
Safety standards. No hazardous materials or waste shall be discharged on the site of any WECF. If any hazardous materials or wastes are to be used on site, the Special Permit shall incorporate provisions for full containment of such materials or waste. An enclosed containment area, designed to contain at least 110% of the volume of the hazardous materials or waste stored or used on the site may be required to meet this requirement. The WECF shall also be designed to prevent unauthorized access (for example, by construction of a fenced enclosure or locked access, anti-climbing provisions, etc.).
Use by telecommunications carriers. WECFs having a rated power of at least 250 kilowatts and a hub height of at least 165 feet (50 meters) may be used as hosts for telecommunications antennas, subject to applicable regulations governing such uses, and subject to the following requirements:
All ground-mounted telecommunications equipment shall be located in either a secured shelter, within the wind turbine tower or otherwise hidden from view year-round either through effective landscaping or existing natural vegetated buffers;
Antennas shall be flush-mounted to be in keeping with the design of the wind turbine tower; and
All cabling associated with the wireless facilities and equipment shall be secured within the tower structure or enclosed within a conduit painted to match the turbine mount.
Underground utilities. All electrical connections from the WECF, including any associated substations, to either the point of use for the electricity or to the grid shall be made via underground conduits.
§ 375-41.5 Modifications.
All modifications to a WECF made after issuance of the Special Permit shall require prior approval by the SPGA.
§ 375-41.6 Monitoring and maintenance.
Monitoring requirement. After the WECF is operational, the applicant shall submit to the town at annual intervals from the date of issuance of the Special Permit, a report detailing operating data for the facility, including, but not limited to, days of operation, electrical energy production, etc.
Maintenance requirement. The applicant shall maintain the WECF in good condition. Such maintenance shall include, but not be limited to, painting, maintaining the structural integrity of the foundation, support structure and security barrier (if applicable), and maintenance of the buffer areas and landscaping, if present.
§ 375-41.7 Term of special permit.
A Special Permit issued for the construction or operation of any WECF shall be valid for 20 years, unless extended or renewed. Upon request, the SPGA may extend the time period or renew the Special Permit if there has been satisfactory operation of the facility.
Any Special Permit issued under this Bylaw shall lapse within one year from the grant thereof if construction has not sooner commenced except for good cause as determined by the Zoning Enforcement Officer. Upon the lapse of a Special Permit, a new application process must be undertaken before the WECF can proceed.
Upon expiration or termination of the Special Permit, the WECF shall be removed by the owner.
§ 375-41.8 Application procedures.
Technical Research Group (TRG). The SPGA shall designate a Technical Research Group (TRG) composed of seven members: (1) a Town Engineer (DPW), (2) a member of the Town Planning Board, (3) a member of the Town Zoning Board of Appeals, (4) a member of the Town Alternative Energy Committee, and (5) a member of the Town Board of Health, (6) a member of the Town Board of Assessors, (7) a member-at-large. In the case of members (2) through (6) inclusive, each individual shall be appointed by his or her respective Board or Committee. The member-at-large shall be appointed by the Town Select Board. The members shall serve staggered three-year terms and may be reappointed.
Pre-application conference. Prior to the submission of an application for a Special Permit under this regulation, the applicant is strongly encouraged to meet with the TRG at a public meeting to discuss the proposed WECF in general terms and to clarify the filing requirements. The TRG shall meet with an applicant under this provision within 21 days following a written request for pre-application conference submitted to the SPGA and the Town Clerk. If the TRG fails to hold the pre-application conference within 21 days of the request and said conference has not been postponed due to mutual agreement, the applicant may proceed with a Special Permit application under this Bylaw without need for a pre-application conference.
Pre-application filing requirements. The purpose of the pre-application conference is to inform the TRG as to the general nature of the proposed WECF. As such, no formal filings are required to be presented at the pre-application conference. However, the applicant is encouraged to prepare sufficient preliminary drawings or to present manufacturer's drawings and specifications to inform the TRG of the location and overall design of the proposed facility, as well as its scale, noise levels, and proximity to abutting residential structures.
Professional fees. The Town may retain a technical expert/consultant, pursuant to MGL Chapter 44, Section 53G, to verify information presented by the applicant during the pre-application conference. The cost for such a technical expert/consultant, if needed, will be at the expense of the applicant.
Application filing requirements.
The following shall be included with an application for a Special Permit for each WECF:
Name, address, telephone number, and original signature (photo-reproductions of signatures will not be accepted) of applicant and any co-applicants. Co-applicants may include the landowner of the subject property or the operator of the WECF.
If the applicant or co-applicant will be represented by an agent, the name, address and telephone number of the agent shall be provided as well as an original signature authorizing the agent to represent the applicant and/or co-applicant. Photo-reproductions of signatures will not be accepted.
If the property is to be leased or subject to an easement, the applicant shall provide a copy of the lease or easement instrument.
Identification of the subject property by including the name of the nearest road or roads, and street address, if any;
Assessors map and parcel number of subject property;
Zoning district designation for the subject parcel with a separately submitted locus map;
A one-inch-equals-forty-feet vicinity plan, signed and sealed by a licensed Professional Land Surveyor showing the following:
Property lines for the subject property (for residential applicants), and all properties adjacent to the subject property within 300 feet (for non-residential applicants).
Proposed location of WECF, including all turbines, fencing, associated ground equipment, transmission infrastructure and access roads.
For non-residential applicants, the outline of all existing buildings, including their purpose(s) (e.g., residential buildings, garages, accessory structures, etc.) on the subject property and all adjacent properties within 300 feet, and the distances, at grade, from the proposed WECF to each building on the vicinity plan shall be shown.
Existing (before) condition photographs. A color photograph of the current view shall be submitted from at least two locations to show the existing conditions.
Proposed (after) condition representations. Each of the existing condition photographs shall have the proposed wind energy conversion facility superimposed on it to accurately simulate the proposed wind energy conversion facility when built and illustrate its total height, width, and breadth.
For WECFs with hub heights of 165 feet (50 m) or greater, sight-line representations must be provided. A sight-line representation shall be drawn from representative locations that show the lowest point of the turbine tower visible from each location. Each sight line shall be depicted in profile, drawn at one-inch-equals-forty-feet scale. The profiles shall show all intervening trees and buildings. There shall be at least two sight line representations illustrating the visibility of the facility from surrounding areas such as the closest residence or place of business, or nearby public roads or areas.
Specifications for the proposed WECF shall be provided for all equipment and attendant facilities.
Materials of the proposed WECF shall be specified by type and specific treatment. This information shall be provided for the wind turbine tower and all other proposed equipment/facilities.
Colors of the proposed WECF shall be represented by a color board showing actual colors proposed.
If lighting of the site or turbine is proposed by the applicant or required by the FAA, the applicant shall submit a copy of the FAA's determination to establish the required markings and/or lights for the structure. The applicant shall also submit a printout of a computer-generated, point-to-point simulation indicating the horizontal foot-candle levels at grade, both within the property to be developed and 300 feet beyond the property lines. The printout shall indicate the locations and types of luminaires proposed.
The applicant shall provide a statement listing the existing ambient noise levels at the property boundaries of the proposed WECF and the maximum future projected noise levels from the proposed WECF. Such statement shall be certified and signed by a Professional Engineer licensed in the Commonwealth of Massachusetts, stating that noise projections are accurate and meet the noise standards of this Bylaw and of Massachusetts noise regulation 310 CMR 7.10 and are acceptable under Massachusetts Department of Environmental Protection guidance for noise measurements.
To ensure safe operation of the WECF, the applicant shall provide a statement from the wind turbine manufacturer giving the recommended maintenance procedures and schedule, and a declaration by the applicant to follow said procedures and schedule.
The applicant shall provide a detailed business plan for the project, including but not limited to the goals of the project, the stakeholders, and the time-line of anticipated activities.
The applicant shall submit a fully inclusive estimate of the costs associated with removal, prepared by a qualified engineer. The amount shall include a Cost of Living Adjustment for removals after 10, 15 and 20 years. The SPGA shall require the applicant to provide a form of surety (i.e., post a bond, letter of credit, establish an escrow account, or other) at the SPGA's election at the time of construction to cover the costs of the removal in the event the town must remove the facility. The amount of such surety shall be equal to 150% of the anticipated cost of compliance with this section.
The SPGA may require additional information and data from the applicant on issues not explicitly covered in this Bylaw should such issues arise in the course of the application review process.
Adjudication of special permit applications.
The TRG shall make a formal recommendation to the SPGA regarding each application for a Special Permit for a WECF. A positive recommendation from the TRG shall require four affirmative votes of the TRG. All matters before the TRG shall be decided by four votes.
An application for a Special Permit for a WECF to the SPGA shall require four affirmative votes of the SPGA for approval. All matters before the SPGA shall be decided by four votes.
§ 375-41.9 Abandonment or discontinuation of use.
Notification requirements. At such time that a WECF is scheduled to be abandoned or discontinued, the applicant will notify the Chief Executive Officer of the town by certified U.S. mail of the proposed date of abandonment or discontinuation of operations. In the event that an applicant fails to give such notice, the facility shall be considered abandoned or discontinued if the facility is inoperable for 180 consecutive days. In the case of a multi-turbine facility, the SPGA shall determine in its decision what proportion of the facility would be inoperable for the facility to be considered abandoned.
Physical removal. Upon abandonment or discontinuation of use, the owner shall physically remove the WECF within 90 days from the date of abandonment or discontinuation of use. This period may be extended at the request of the owner and at the discretion of the SPGA. "Physically remove" shall include, but not be limited to:
Removal of the wind turbine and tower, all machinery, equipment, equipment shelters, security barriers and all appurtenant structures from the subject property,
Proper disposal of all solid or hazardous materials and wastes from the site in accordance with local and state solid waste disposal regulations, and
Restoration of the location of the WECF to its natural condition, except that any landscaping, grading or below-grade foundation may remain in the after-condition.
Town remedy for violations. If the owner fails to remove a WECF in accordance with this section of this Bylaw, the town shall have the authority to enter the subject property, physically remove the facility, and recover the cost from the owner, either directly or from a surety on behalf of the owner.
§ 375-41.10 Change of owner.
Once a Special Permit for a commercial WECF has been approved, the applicant shall duly record a copy of the Special Permit with the Bristol County Registry of Deeds. All subsequent deeds to the property shall refer to the Special Permit and incorporate it by reference. All conditions under which the Special Permit was originally granted shall be binding on all successive owners of the property. In the event of a transfer of ownership, the original owner shall notify the Chief Executive Officer of the town by certified U.S. mail of the transfer of ownership within 30 days of the transaction.
§ 375-41.11 Severability.
The provisions of this Bylaw are severable. If any provision of this Bylaw is held invalid, the other provisions shall not be affected thereby. If the application of this Bylaw or any of its provisions to any person or circumstance is held invalid, the application of this Bylaw and its provisions to other persons and circumstances shall not be affected thereby.