Hamburg Town City Zoning Code
ARTICLE LIII
Residential Wind Energy Conversion Systems WECS
[Added 7-13-2015 by L.L. No. 9-2015]
§ 280-367 Definitions.
As used in this article, the following terms shall have the meanings indicated:
A wind energy conversion system consisting of one or two wind turbines, one or two towers, and associated control of conversion electronics, with a total height of not more than 165 feet, and is intended to primarily supply electrical power for the use on the subject property (net metering is allowed).
[Amended 12-18-2017 by L.L. No. 2-2018]
The support structure, including guyed, monopole, and lattice types, upon which a wind turbine and other mechanical devices are mounted.
The height above grade of the uppermost fixed portion of the tower, excluding the length of any axial rotating turbine blades.
The height of the wind energy conversion system measured from the ground elevation to the top of the tip of the blade in the vertical position.
One or more mechanical devices which are designed and used to convert wind energy into a form of electric energy for sale or redistribution to others.
A tower used for the measurement of meteorological data such as temperature, wind speed, and wind direction.
Any piece of electrical generating equipment that converts wind energy into electrical energy through the use of airfoils, rotating turbine blades, or similar devices to capture the wind.
§ 280-368 Requirements for residential wind energy conversion systems (WECS).
The placement, construction, and major modification of all residential WECS within the boundaries of the Town of Hamburg shall be permitted only by special use permit within a Residential-Agricultural (R-A) Zoning District upon concurrent site plan approval issued by the Town of Hamburg Planning Board, as provided herein, after SEQR review, with the Town of Hamburg Planning Board designated as lead agency, and upon issuance of a building permit, and shall be subject to all provisions of this section.
Applications under this section shall be made as follows:
Applicants for a special use permit to place, construct, or modify residential WECS within the Town of Hamburg shall submit the following information to the Planning Board for its referral to a professional engineer or consultant for review and recommendation:
Name and address of the applicant.
Evidence that the applicant is the owner of the property involved or has the written permission of the owner to make such an application.
A site plan drawn in sufficient detail to show the following:
Location of the tower(s) on the site and the tower height, including blades, wind turbine diameter, and ground clearance;
Dimensional representation of the various structural components of the tower construction, including the base and footing;
Property lot lines and the location and dimensions of all existing structures and uses on site within 300 feet of the residential WECS;
Proposed plan for restoration of the site after construction according to New York State Department of Environmental Conservation and Town of Hamburg guidelines and requirements;
Certification by a registered New York State professional engineer that the tower's design is sufficient to withstand wind loading requirements for structures as established by the New York State Uniform Construction Code; and
Wind characteristics and dominant wind direction from which 50% or more of the energy contained in the wind flows.
Specific information on the type, size, height, rotor material, rated power output, performance, safety, and noise characteristics of all residential WECS components.
Photographs or detailed drawings of each residential WECS component including the tower and foundation.
An acoustic report shall be furnished for the specific wind turbine technology which provides sound curve based on production levels for the overall dB(A) measurement of the wind turbine at different wind speeds based on field testing. This should be done in accordance with the Small Wind Certification Council (SWCC) which has standardized North American reporting on turbine energy and sound performance.
A report from the turbine manufacturer stating the wind speed and conditions that the wind turbine is designed to withstand (including all assumptions).
A copy of written notification to the Federal Aviation Administration (FAA), if required, and to Mercy Flight.
Notification to microwave communications link operators. An application that includes any residential WECS which is located within two miles of any microwave communications link shall be accompanied by a copy of a written notification to the operator of the link.
An application that includes any residential WECS which is located within a one-hundred-year floodplain area, as such flood hazard areas are shown on the floodplain maps, shall be accompanied by a detailed report which shall address the potential for wind erosion, water erosion, sedimentation, and flooding, and which shall propose mitigation measures for such impacts.
Such additional information as may be reasonably requested by the Town Engineer or Planning Board.
Special use permits issued for residential WECS shall be subject to the following conditions:
Setbacks. Any residential WECS shall adhere to the following setbacks:
From all property lines:
A minimum 1 1/2 times the total height of the residential WECS from any property line.
From residential zoning districts (surrounding the required RA zoned site):
A minimum 500 feet from any residential zoning district boundary line.
From aboveground transmission lines greater than 12 kilovolts:
A minimum 1 1/2 times the total height of the residential WECS from any aboveground transmission line greater than 12 kilovolts.
Notwithstanding the provisions set forth in these subsections, such setbacks from property lines do not apply if the application is accompanied by a legally enforceable agreement that runs with the property for a period of 25 years or the life of the special use permit, whichever is longer, that the adjacent landowner(s) agrees to the elimination of the required setbacks. These setback requirements can only be varied through this agreement process with adjoining landowners and not through a variance with the Zoning Board of Appeals. Any agreement to the elimination of such property line setbacks shall not constitute the reduction or elimination of required setbacks from structures, as previously identified, and such setbacks from structures, for safety reasons, shall not be reduced or eliminated.
Maximum overall height:
[Amended 12-18-2017 by L.L. No. 2-2018]
The maximum overall height of any residential WECS shall be 165 feet. The maximum height shall be measured from the ground elevation to the top of the tip of the blade in the vertical position.
Only one residential WECS per legal lot shall be allowed, unless the lot is more than 20 acres. In that case (lots greater than 20 acres) a maximum of two WECS are allowed. It must be clearly understood that by the definition of a residential wind energy conversion system, these types of systems are not allowed on vacant lands; they must be associated with a use. Also by the definition, a second wind turbine could not be placed on a property that only contained a single-family home, as a single-family home would not have the energy usage to warrant a second wind turbine. A second wind turbine would only be considered on a property that includes at least two allowable uses on that site that would warrant the construction of two wind turbines.
[Amended 12-18-2017 by L.L. No. 2-2018]
The power produced from the residential WECS shall only be used for on-site consumption (except for net metering purposes).
Residential WECS shall be located in rear yards.
Notification of adjacent property owners.
All applicants are required to notify all property owners within 1,000 feet of the property line of the proposed parcel where the residential WECS will be erected, at the time of application (proof of notification to be provided with the application to the Town).
The adjacent property owners shall be notified by the Town Planning Department in writing within 10 days of filing an application for residential WECS special use permit with the Town of Hamburg. This notification shall include the size, location, and planned construction date of the residential WECS.
Color and finish.
Wind turbines and towers shall be painted a nonobtrusive (e.g., light environmental color such as white, gray, or beige) color that is nonreflective.
The design of residential WECS buildings and related structures shall, to the extent reasonably possible, use materials, colors, textures, screening, and landscaping that will blend the facility to the natural setting and the existing environment.
Lighting.
Exterior lighting on any structure associated with the system shall not be allowed except that which is specifically required by the FAA or requested by Mercy Flight (and approved by the Planning Board).
Compliance with regulatory agencies.
The applicant is required to obtain all necessary regulatory approvals and permits from all federal, state, county, and local agencies having jurisdiction and approval related to the completion of the residential WECS.
The applicant is required to submit a short (unless a full form is requested by the Planning Board) Environmental Assessment Form (EAF) with the Town of Hamburg to comply with the SEQR process.
Safety and security requirements.
Safety shutdown. Each residential WECS shall be equipped with both manual and automatic controls to limit the rotational speed of the blade within the design limits of the wind turbine. A manual electrical and/or over-speed shutdown disconnect switches shall be provided and clearly labeled on the residential WECS. No wind turbine shall be permitted that lacks an automatic braking, governing, or feathering system to prevent uncontrolled rotation, over-speeding, and excessive pressure on the tower structure, rotor blades, and wind turbine components.
All structures which may be charged with lightning shall be grounded according to applicable electrical code.
The blade tip of any wind turbine shall, at its lowest point, have ground clearance of not less than 30 feet.
Wind turbine towers shall not be climbable up to 15 feet above ground level.
All access doors to residential WECS structures and electrical equipment shall be lockable and shall remain locked at all times when operator personnel are not present.
Anchor points for any guy wires for a system tower shall be located with the property that the system is located on and not on or across any above ground 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 to eight feet above the ground. The minimum setback for the guy wire anchors shall be 10 feet from the property boundary.
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.
Noise requirements.
A residential WECS shall not be operated so that impulsive sound below 20 Hz adversely affects the habitability or use of any dwelling unit, hospital, school, library, nursing home, or other sensitive noise receptor.
Impact on wildlife species and habitat.
Interference with residential television, microwave, and radio reception.
The applicant must submit information that the proposed construction of the residential WECS 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.
Unsafe and inoperable residential WECS; site reclamation (see also § 280-363, Permit revocation).
Unsafe residential WECS, inoperable residential WECS, and residential WECS for which the special use permit has expired shall be removed by the owner. All safety hazards created by the installation and operation of the residential WECS shall be eliminated, and the site shall be restored to its natural condition to the extent feasible. A bond or other appropriate form of security shall be required to cover the cost of the removal and site restoration.
Every unsafe residential WECS and every inoperable residential WECS are hereby declared a public nuisance which shall be subject to abatement by repair, rehabilitation, demolition, or removal. An inoperable residential WECS shall not be considered a public nuisance, provided that the owner can demonstrate that modernization, rebuilding, or repairs are in progress or planned and will be completed within no more than six months.
A residential WECS shall be deemed inoperable if it has not generated power within the preceding six months.
Erosion control.
Before the Town of Hamburg shall issue a grading or building permit for the residential WECS, the applicant shall submit an Erosion Control Plan to the Engineering Department for its review and approval.
The Plan shall minimize the potential adverse impacts on wetlands and Class I and II streams and the banks and vegetation along those streams and wetlands and minimize erosion or sedimentation.
Certification.
The foundation, tower, wind turbine, and compatibility of the tower with related equipment shall be certified in writing by a structural engineer registered in New York State. The engineer shall certify compliance with good engineering practices and compliance with the appropriate provisions of the Uniform Construction Code that have been adopted in New York State.
After completion of the residential WECS, the applicant shall provide a post-construction 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.
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 Electric Code that have been adopted by New York State.
The wind turbine over-speed control system shall be certified in writing by a mechanical engineer registered in New York State. The engineer shall certify compliance with good engineering practices.
Certificate of completion must be supplied by the applicant and approved by the Town of Hamburg Code Enforcement Officer.
Monitoring requirements for residential WECS.
Upon reasonable notice, Town of Hamburg officials or their designated representatives may enter a lot on which a residential WECS special use permit has been granted for the purpose of compliance with any permit requirements. Twenty-four hours' advance notice by telephone to the owner/operator or designated contact person shall be deemed reasonable notice.
Unless waived by the Planning Board, a residential WECS shall be inspected annually by a New York State licensed professional engineer that has been approved by the Town or at any other time, upon a determination by the Town's Code Enforcement Officer, that the wind turbine, tower, or other residential WECS components have sustained structural damage, and a copy of the inspection report shall be submitted to the Town Code Enforcement Officer. Any fee or expense associated with this inspection shall be borne entirely by the permit holder.
General complaint process.
During construction, the Town of Hamburg Code Enforcement Officer can issue a stop order at any time for any violations of the special use permit.
After construction is complete, the permit holder shall establish a contact person, including name and phone number, for receipt of any complaint concerning any permit requirements. Upon receipt of complaint from the Town of Hamburg Code Enforcement Officer, the permit holder/contact person shall have seven working days to reply to the Town in writing.
Application fees and costs.
Applicant shall pay all costs associated with the Town of Hamburg's review and processing of the application. The applicant shall submit a deposit with the application in the amount as determined by resolution by the Town Board. The Town of Hamburg may require additional deposits to cover the costs of reviewing and processing the application. Such additional deposits, if requested, shall be promptly submitted by the applicant. Following action on the application, any unused amount of the deposit(s) shall be returned to the applicant with a summary of the costs incurred.
The applicant shall pay a permit fee, in the amount as determined by resolution by the Town Board, to cover the costs incurred by the Town associated with a residential WECS special use permit and building permit such as administration, inspections, and enforcement.
Prior to the issuance of a building permit, the applicant shall document that all applicable federal, state, county, and local permits have been obtained.
Prior to the issuance of a building permit, the applicant shall provide the Town Clerk with proof of insurance in a sufficient dollar amount to cover potential personal and property damage associated with construction and operation thereof.
Findings.
Findings necessary to grant a residential WECS special use permit. In order to grant a residential WECS special use permit, the Town of Hamburg shall review the application, all filings by any other party, and conduct a public hearing. A residential WECS special use permit shall not be granted unless the Town of Hamburg Planning Board makes the following findings based on substantial evidence:
The proposed residential WECS project is consistent with the Town of Hamburg Comprehensive Plan and Local Waterfront Revitalization Plan (LWRP), where applicable.
The proposed residential WECS project will not unreasonably interfere with the orderly land use and development plans of the Town of Hamburg.
That the benefits to the applicant and the public of the proposed residential WECS project will exceed any burdens.
The proposed residential WECS project will not be detrimental to the public health, safety, or general welfare of the community.
The proposed residential WECS project shall comply with all required provisions of the Zoning Code, unless allowed variances (see setback process) have been properly applied for and granted by the Town of Hamburg Board of Zoning Appeals.
The Planning Board may 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.
The Planning Board, on request from the applicant, shall have the authority to waive any of the requirements of this Code, except for zoning districts in which residential WECS are permitted by special use permit, minimum lot size, setbacks, height regulations, and number of residential WECS per lot [Subsection C(1) through (4)], which can only be reduced through a variance obtained from the Town of Hamburg Zoning Board of Appeals. The Planning Board must provide, in writing, its reasoning for issuing waivers.
Any changes or alterations post-construction to the residential WECS shall be done only by amendment to the special use permit and shall be subject to all requirements of this Code.
§ 280-369 Permit revocation.
A residential WECS shall be maintained in operational condition at all times, subject to reasonable maintenance and repair outages. Operational condition includes meeting all noise requirements and other permit conditions. Should a residential WECS become inoperable, or should any part of the residential WECS be damaged, or should a residential WECS violate permit conditions, the owner or operator shall remedy the situation within 90 days after written notice from the Town Board. The applicant shall have 90 days after written notice from the Town Board, to cure any deficiency. An extension of the ninety-day period may be considered by the Town Board, but the total period may not exceed 180 days.
Notwithstanding any other abatement provision under this Code, if the residential WECS is not repaired or made operational or brought into permit compliance after said notice, the Town Board may, after a public hearing at which the operator or owner shall be given opportunity to be heard and present evidence, including a plan to come into compliance, order either remedial action within a particular timeframe, or order revocation of the residential WECS special use permit and require the removal of the residential WECS within 90 days. If the residential WECS is not removed, the Town Board shall have the right to use the security posted as part of the decommission plan to remove the residential WECS.
§ 280-370 Fees and costs.
All fees shall be approved by the Town Board by resolution. Nothing in this section shall be read as limiting the ability of the Town to enter into host-community agreements with any applicant to compensate the Town for expenses or impacts on the community. The Town shall require any applicant to enter into an escrow agreement to pay the engineering and legal costs of any application review.
§ 280-371 Enforcement; penalties for offenses; remedies for violations.
Any person owning, controlling, or managing any building, structure, or land who shall undertake the construction or operation of a residential WECS in violation of this Code or in noncompliance with the terms and conditions of any permit issued pursuant to this Code, or any order of the Code Enforcement Officer, and any person who shall assist in so doing shall be guilty of an offense and subjected to a fine of not more than $250 or to imprisonment for a period of not more than six months, or both. Every such person shall be deemed guilty of a separate offense for each week such violation shall continue. The Town may institute a civil proceeding to collect civil penalties in the amount of $250 for each violation and each week said violation continues shall be deemed a separate violation.
In case of any violation or threatened violation of any of the provisions of this Code, including the terms and conditions imposed by any permit issued pursuant to this Code, in addition to other remedies and penalties herein provided, the Town may institute any appropriate action or proceeding to prevent such unlawful erection, structural alteration, reconstruction, moving and/or use, and to restrain, correct, or abate such violation, to prevent the illegal act.