(A)

The purpose of this Section is to regulate the placement, construction and modification of Wind Energy Facilities in order to:

(1)

promote the safe, effective, and efficient use of wind energy systems in order to reduce potential environmental and potentially negative economic impacts while providing alternatives to producing electricity;

(2)

protect the health, safety and welfare of the public by reducing and minimizing the potential adverse impacts of wind energy systems;

(3)

protect the public by ensuring the design, construction, maintenance and removal of wind energy systems is undertaken in a manner that protects neighboring properties, the City and the public as a whole; and

(4)

provide for a procedure to review, approve, deny or condition proposed wind energy systems uses.

(Ord. 2014-24, § I, passed 4-23-2014)

(A)

As used in this Section, the following terms shall have the meanings and usages indicated:

(1)

AGL: Above ground level. Ground level shall be determined by the average elevation of the natural ground level within a radius of 50 feet from the center location of measurement.

(2)

Director: The Director of Planning and Development Services of the City of Kingsville or his/her designee.

(3)

FAA: The Federal Aviation Administration.

(4)

Height: For purposes of this Section, the vertical distance measured from the average grade of the base of the structure above ground level to its highest point of any Wind Energy Facility, which shall be calculated at the tip of the rotor blade at its highest point, or any higher portion of the structure that may exist.

(5)

Accessory Use: Any use authorized herein that exists in addition to the principal use of the property.

(6)

Net Metering: Using metering equipment sufficient to measure the difference between the electrical energy supplied to a customer-generator by a retail electric supplier and the electrical energy supplied by the customer-generator to the retail electric supplier over the applicable billing period and as so defined pursuant to the State of Texas Utilities Code Chapter 39, section 39.916 (2011).

(7)

Modification: Any change to a structure requiring a building permit or other governmental approval.

(8)

Large Wind Energy Facilities: Wind Energy Facilities that are larger than 100 KW output, consist of a grouping of two or more non-exempt Wind Energy Facilities, or otherwise do not meet the requirements for facilities authorized by permitted use or administrative approval.

(9)

Small Wind Energy Facilities: Wind Energy Facilities, other than facilities authorized as a Permitted Use, having a capacity of 100 KW output or less and that fully comply with the General Standards for Wind Energy Facilities and satisfy all other requirements of this code applicable to Small Wind Energy Facilities.

(10)

Wind Energy Facilities: Facilities including turbines, accessory equipment and related components designed to create electrical or other energy by use of wind. Wind Energy Facilities include Exempt Facilities, and other facilities, whether connected to the electrical grid of the local utility or independently operating.

(11)

Exempt Facilities: Wind Energy Facilities:

(a)

having a rotor arc of one meter (or 39.37 inches) or less in diameter, and other type of turbine having a rotation device with no dimension greater than 1 meter (or 39.37 inches), and

(b)

mounted on an existing structure having a primary authorized use other than as a support structure for a Wind Energy Facility, and

(c)

having a setback from property lines at least twenty (20) feet plus the principal building setback in addition to other setback requirements herein, and

(d)

with no portion more than ten (10) feet above the highest part of the existing structure and no exposed moving part having less than fifteen (15) feet of clearance to the ground or other point of pedestrian access.

(e)

No more than three (3) exempt facilities may exist on any one parcel.

(Ord. 2014-24, § I, passed 4-23-2014)

(A)

The placement of Wind Energy Facilities shall be an accessory use in any zoning district within the City only as follows:

(1)

Municipal Property. Wind Energy Facilities may be placed on City-owned or leased land where authorized by the approval of an executed mutual agreement with the City Commission, subject to such conditions and requirements as deemed necessary by the City to meet the purposes of this Article and to protect the public interests.

(2)

Exempt Facilities. Exempt facilities may be placed in any zoning district as a permitted accessory use subject to the General Standards within this Code as provided in the definition of exempt facilities, and such other specifically applicable provisions.

(Ord. 2014-24, § I, passed 4-23-2014)

(A)

The placement of Small Wind Energy Facilities shall be permitted by Administrative Permit approved by the Director within any zoning district, subject to General Standards and other requirements of this Section and further limited as follows:

(A)

Application Procedures. Applications for Administrative Permits shall be made on the appropriate forms to the Director and accompanied by payment of the non-refundable fee of $100.00 to cover the labor and associated costs of processing of the application.

(1)

Detailed structure plans and a detailed site plan, based on a closed boundary survey of the host parcel, shall be submitted clearly outlining all existing and proposed improvements including buildings, drives, walkway, parking areas and other structures, public right-of-way, the zoning categories of the subject and adjoining properties, the location of and distance to off-site residential structures, required setbacks, required buffer and landscape areas, water features, and the coordinates and height AGL of the existing or proposed tower.

(2)

The application shall be reviewed by the Director to determine compliance with the above standards, after which the application shall be transmitted for review and comment by other departments and public agencies that may be affected by the proposed facility.

(3)

The Director shall issue a decision on the permit within forty-five (45) days of the date of application or the application shall be deemed denied or the time period for review and action is extended by written order of the Director. The Director may deny the application or approve the application as submitted or approve with such modifications as are, in his/her judgment, reasonably necessary to protect the safety or general welfare of the citizens, consistent with the purposes of this section. The Director shall consider the purposes of this section and the factors established herein for granting a Special Use Permit as well as any other considerations consistent with this section. A decision to approve, approve with modifications or disapprove an application shall be made in writing. If the decision is for approval with modifications or disapproval, the specific reasons for the modification or disapproval must be included.

(4)

Minor variations: When an application does not fully comply with the requirements for administrative approval, but a minor variation to the requirements would, in the opinion of the Director, be consistent with the spirit and intent of this code, the Director shall be authorized to refer the application to the Planning & Zoning Commission, which shall be authorized to approve, disapprove or condition such variation as may be appropriate to meet the purposes of this code, provided that the basis for the variation or disapproval is unique to the property or otherwise not typical to all applications.

(5)

Appeals: Appeals from the decision of the Director or the Planning & Zoning Commission shall be made in the same manner as otherwise provided in Sec. 15-6-157(c) of this code for the appeal of administrative decisions.

(C)

Requirements. No application for a Small Wind Energy Facility may be approved unless it fully complies with the requirements in this subsection and the General Standards for Wind Energy Facilities.

(Ord. 2014-24, § I, passed 4-23-2014)

(A)

All proposals to install, build or modify a Large Wind Energy Facility as an accessory use or principal use, including Wind Energy Facilities that do not fully meet the requirements for approval as a permitted use or administrative approval in this Section, may be constructed, operated and approved only as a specially permitted use requiring public hearing before the Planning and Zoning Commission with a recommendation being forwarded to the City Commission for consideration and determination and also subject to the following additional limitations:

(1)

Underlying Eligible Districts. A Large Wind Energy Facility as an accessory use or principal use may only be approved in the following underlying districts: I1 light industrial district, I2 heavy industrial district.

(2)

Minimum Requirements. In addition to the criteria otherwise applicable to special use permit approvals:

(a)

No special use permit may be issued unless the applicant has clearly demonstrated that the approval under permitted or administrative approvals under this code is not technologically or economically feasible and that the proposed Wind Energy Facility (1) complies with the requirements for administrative approval to the extent practicable and (2) meets the purposes of this Code. In addition to other standards established for approval of special uses, the governing body may consider current or emerging industry standards and practices, net energy benefits, and impact on neighboring properties and uses, among other information, in determining feasibility and compliance with the intent of this Code. At the expense of the applicant, the City may require additional studies or the hiring of an external consultant to review exhibits and/or other requirements in accordance with this section.

(b)

The General Standards for Wind Energy Facilities shall apply to all facilities proposed for special use permit approval, except to the minimum extent a modification or variance is determined to be necessary to meet the purposes of this section. Any modification or variance to any such General Requirements sought by a special use permit approval shall be expressly stated in the application for the special use permit.

(3)

Additional Height Limitations. A special use permit shall adhere to the height requirements in Appendix B: "Space Requirements", Section 2, provided that no Wind Energy Facility shall be approved for a height of greater than one hundred (100) feet.

(Ord. 2014-24, § I, passed 4-23-2014)

(A)

Except as noted, the requirements set forth in this Section shall be applicable to all Wind Energy Facilities installed, built or modified after the effective date of this Section to the full extent permitted by law.

(1)

Accessory Use. A Wind Energy Facility shall only be permitted as an accessory use, subject to any applicable district requirement relating to yard area or setback, provided that no more than one Small Wind Energy Facility shall be located on a parcel and no more than three Exempt Facilities shall be permitted per parcel.

(2)

Building Codes, Safety Standards, and Zoning Compliance. Wind Energy Facilities shall be constructed and maintained in compliance with all standards contained in applicable state and local building codes. In addition to any other approvals required by this section, no Wind Energy Facility shall be erected prior to receipt of an approved zoning review and the issuance of a building permit.

(3)

Regulatory Compliance. All Wind Generation Facilities shall meet or exceed current standards and regulations of any state or federal agency with the authority to regulate applicable Wind Generation Facilities. Should such standards or regulations be amended, then the owner shall bring such devices and structure into compliance with the revised standards or regulations within the time period mandated by the controlling agency. No approval for any placement, construction or modification of any Wind Energy Facility permitted by this section shall be granted for any applicant having an uncured violation of this section or any other governmental regulatory requirement related to the subject property.

(4)

Security. All Wind Energy Facilities shall be protected from unauthorized access by appropriate security measures. A description of proposed security measures shall be provided as part of any administrative application. Additional measures may be required as a condition of the issuance of a Building Permit or Administrative Permit as deemed necessary by the Director.

(5)

Lighting. Wind Energy Facilities shall not be lighted unless required by a state or federal agency with authority to regulate, in which case a description of the required lighting scheme will be made a part of the application to install, build or modify the facility. Equipment cabinets and shelters, if permitted, may have lighting only as approved by the Director on the approved Site Development Plan. The requirement by any state or federal agency for lighting of any proposed structure may be considered as a reasonable basis for denial of an application in any residential area or otherwise where incompatible with the surrounding uses.

(6)

Advertising. The placement of advertising on structures regulated by this section is prohibited, provided that a manufacturer or specification notice of less than one square foot in size shall be permitted.

(7)

Design.

(a)

All visible portions of the Wind Energy Facility shall be painted a non-reflective gray or other approved neutral color consistent with the natural or built environment of the site. Unpainted galvanized exposed material is prohibited.

(b)

No equipment shelters or other accessory structures shall be permitted in conjunction with a Wind Energy Facility except where underground, contained within an existing building, or otherwise appropriately concealed.

(c)

All utilities serving the Facility shall be underground.

(d)

Design elements shall be of a type consistent with the zoning district and accessory uses of the property and adjoining area.

(8)

Height. A Wind Energy Facility shall be subject to building height restrictions consistent with the applicable zoning district but shall not exceed a height which is the lesser of:

(a)

Ten (10) feet above the principal building height permitted within the zoning district, or

(b)

The limitation set by any airport overlay zone as may be adopted by the City, FAA limitation, or other height restrictions established by the City, or

(c)

A maximum of forty-five (45) feet, except in zoning districts I1 and I2 where heights can be increased but only as part of an approved special use permit as provided in 15-6-198.

(9)

Noise Limitations. Noise emanating from the operation of a Wind Energy Facility shall not exceed, at any time, the lowest ambient sound level that is present between the hours of 9:00 p.m. and 9:00 a.m. at any property line of a property used or zoned for residential use or used for a school, hospital, or place of worship. Noise emanating from the operation of a Wind Energy Facility shall in no event exceed, at any time, 45 dBa measured at the property line.

(10)

Safety Requirements. All Wind Energy Facilities shall:

(a)

Comply with the requirements of the State of Texas Utilities Code Chapter 39, section 39.916 (2011), to the extent such facility is connected to the retail electric supplier for net metering;

(b)

Comply with the regulations and standards set forth in Title 14 of the Code of Federal Regulations (CFR), specifically Part 77 pertaining to the Obstruction Evaluations/Airport Airspace Analysis as administered by the FAA.

(c)

Comply with the Imaginary Surface Area as defined per the CFR Part 77 as administered by the FAA.

(d)

Comply with the Air Installation Zoning Regulations (a.k.a AICUZ) ordinance as set forth in section 15-6-35 through 15-6-41 of this Article. Specific importance shall be made with respect to AICUZ instruction 11010.36C.

(e)

Be analyzed fully for land use and airport compatibility issues on a case-by-case basis that considers both the proposal and any potential safety hazard, most notably those associated with the Naval Air Station-Kingsville.

(f)

Include power outage protection so as to automatically terminate power generation during any power outage in any electrical utility system being served. Certification or documentation of such design shall be included with any permit approval.

(Ord. 2014-24, § I, passed 4-23-2014)

(A)

Any WECS which is located within a designated local historic district or any overlay district area shall, in addition to compliance with all other zoning and building code regulations, comply with the requirements of the respective local historic district or applicable overlay district plan. The determination of visibility from street right-of-way shall be the responsibility of the historic preservation officer within the historic districts or otherwise the Director of Planning & Development Services and/or designee.

(Ord. 2014-24, § I, passed 4-23-2014)

(A)

Notwithstanding any right that may exist for a governmental entity to operate or construct a tower or structure, it shall be unlawful for any person to erect or operate any Wind Generation Facility in violation of any provision of this Section, regardless of whether such structure is located on land owned by a governmental entity.

(Ord. 2014-24, § I, passed 4-23-2014)

(A)

Notice of Discontinuance:

(1)

In the event that all legally approved use of a wind energy conversion system supporting structure or wind energy related equipment has been discontinued for a period of 180 days, the Director may make a preliminary determination of discontinuance. In making such a determination, the Director may request documentation and/or affidavits from the property owner regarding the structure's usage, including evidence that use of the structure is imminent. Failure on the part of a property owner to provide updated contact information for the owner of the wind energy conversion system supporting structure or wind energy related equipment for four consecutive years will be presumptive evidence of discontinuance. At such time as the Director reasonably determines that a wind energy conversion system supporting structure or wind energy related equipment has been discontinued, the Director will provide the property owner with a written notice of discontinuance by certified mail.

(B)

Declaration of discontinuance:

(1)

Failure on the part of the property owner to respond to the notice of discontinuance within 90 days, or to adequately demonstrate that the structure is not discontinued, will be evidence of discontinuance. Based on the foregoing, or on any other relevant evidence before the Director, the Director may make a final determination of discontinuance, whereupon a declaration of discontinuance will be issued to the property owner by certified mail.

(C)

Removal of facility:

(1)

Within 120 days of a declaration of discontinuance, the property owner must either:

(a)

Reactivate the use of the structure as a wind energy conversion system supporting structure or wind energy related equipment or transfer ownership of structure to another owner who will make such use of the facility; or

(b)

Dismantle and remove the facility. If the facility remains discontinued upon the expiration of 120 days, the property is declared a nuisance and the City of Kingsville may enter upon the property and remove the facility, with all costs to be borne by the property owner.

(Ord. 2014-24, § I, passed 4-23-2014)

(A)

Any person violating the regulations set forth in this Article shall be subject to the penalty as prescribed in section 15-6-999. Each day the violation continues shall constitute a separate offense.

(Ord. 2014-24, § I, passed 4-23-2014)

Any person, group, firm, or corporation where as principle, agent, employee or otherwise, violating, causing or permitting the violation of the provisions of this article shall be guilty of a misdemeanor and shall be liable to a fine of not more than $1,000.00. Such person, group, firm or corporation shall be deemed t0 be guilty of a separate offense for each and every day during which any violation of this article is committed, continues or results from the action or inaction of such person, group, firm or corporation.

(1962 Code, § 11-6-10; Ord. 84009, passed 6-18-84)