Lackawanna City Zoning Code
ARTICLE XI
Wind Energy Conversion Systems WECS
[Added 6-18-2007[1]]
[1]
Editor's Note: An ordinance adopted 10-1-2007 provided that: "This ordinance shall take effect immediately upon the expiration of any moratorium enacted by the Council pursuant to Council Resolution No. 4, 2007. Except for any application made pursuant to Resolution No. 17, 2007, in which case, this ordinance takes effect immediately."
§ 230-81 Purpose.
The City of Lackawanna has determined that a comprehensive local law regulating the development of WECS is necessary to protect the interests of the City and its residents. The City adopts this article to promote the effective and efficient use of the City's wind energy resource through WECS and to regulate the placement of such systems so that the public health, safety and welfare will not be jeopardized and that the WECS will not have a significant adverse impact on the aesthetic qualities of the City.
§ 230-82 Definitions.
COMMERCIAL WIND ENERGY SYSTEM — A wind energy conversion system consisting of one wind turbine, one tower and associated control or conversion electronics which has a rated capacity greater than 250 kilowatts and a total height of more than 150 feet and is intended to solely supply electrical power into a power grid for sale.
A wind energy conversion system consisting of one wind turbine, one tower and associated control or conversion electronics which has a rated capacity of not more than 250 kilowatts and a total height of less than 150 feet.
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.
The support structure, including guyed, monopole and lattice types, upon which a wind turbine or other mechanical device is mounted.
The height above grade of the uppermost fixed portion of the tower, excluding the length of any axial rotating turbine blades.
One or more mechanical devices such as wind chargers, windmills or wind turbines which are designed and used to convert wind energy into a form of useful energy for use on site to reduce power costs for sale or redistribution to others. WECS include both commercial and noncommercial systems.
Any wind energy conversion system or wind measurement tower, including all related infrastructure, electrical lines and substations, access roads and accessory structures.
The equipment that converts and then stores or transfers energy from the wind into usable forms of energy and includes any base, blade, foundation, generator, nacelle, rotor, tower, transformer, turbine, vane, wire, substation, maintenance or control facilities or other component used in the system.
A tower used for the measurement of meteorological data such as temperature, wind speed and wind direction.
§ 230-83 Applicability.
[Amended 3-5-2008]
The requirements of this article shall apply to all wind energy facilities proposed, operated, modified, or constructed after the effective date of this article except for those which began operation shall to the effective date of this article and also except for wind energy facilities within the Bethlehem Redevelopment Area (BRA) where the requirements of this article shall apply to all wind energy facilities proposed, operated, modified, or constructed after the effective date of this article unless the Planning Board has issued final approval for such wind energy facilities prior to December 31, 2007.
§ 230-84 Permits required; allowable zoning districts.
[Amended 10-1-2007; 3-5-2008]
No wind energy facilities shall be constructed, reconstructed, modified, or operated in the City of Lackawanna except in compliance with this article.
No wind energy facilities shall be constructed, reconstructed, modified, or operated in the City of Lackawanna except in Industrial (I), Bethlehem Redevelopment Area (BRA) or Mixed Commercial and Industrial (MCI) Districts, and with the issuance of a special use permit approved pursuant to this article, the completion of SEQR, and upon issuance of a building permit.
Any future construction of wind energy facilities shall be located in an area west of the canal but in no event shall be closer than 2,000 feet west of the westerly line of Hamburg Turnpike.
No wind measurement tower shall be constructed in the City of Lackawanna except in the allowable districts pursuant to a special use permit and this article.
§ 230-85 Applications for wind energy facilities.
[Amended 3-5-2008]
Applications for a special use permit for WECS will follow the general process for the issuance of a special use permit as described in Article XIV of the City Code and this article, and shall be made as follows:
Applicants for a special use permit for wind energy conversion systems within the City of Lackawanna shall submit the following information to the City for its referral to a professional engineer or consultant and to the Planning Board of the City for review and recommendation to the City Council:
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.
Visual environmental assessment form (visual EAF), landscaping plan, and visual assessment report, including appropriate models and photography assessing the visibility from key viewpoints identified in the visual EAF or by the City of Lackawanna, existing tree lines and proposed elevations. The visual EAF shall include a detailed or photographic simulation showing the site fully developed with all proposed wind turbines and accessory structures.
A SEQR full environmental assessment form (EAF).
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, rotor diameter and ground clearance.
Utility lines, both above and below ground, within a radius equal to the proposed tower height, including the blades.
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.
Surrounding land use and all structures within 1,500 feet of the wind energy conversion systems.
Dimensional representation of the various structural components of the tower construction, including the base and footing.
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.
Existing topography.
Proposed plan for grading and removal of natural vegetation.
Proposed plan for restoration after construction according to City of Lackawanna and NYS Department of Environmental Conservation guidelines.
Wind characteristics and dominant wind direction from which 50% or more of the energy contained in the wind flows.
Plan for ingress and egress to the proposed project site, including:
A road maintenance schedule or program.
Review of railroad accessibility for deliveries.
Detailed construction plan, including but not limited to a 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 a contact representative in the field with a name and phone number.
Tree removal. All groves of trees shall be located on the site plan at the time of application. No grove or woodlots of trees shall be removed without approval of the Planning Board, excluding the BRA area.
Turbine information: must contain specific information on the type, size, height, rotor material, rated power output, performance, safety, and noise characteristics of each commercial wind turbine model, tower, and electrical transmission equipment.
Turbine drawings: must contain photographs or detailed drawings of each wind turbine model, including the tower and foundation.
Noise report. A noise report shall be furnished which shall include the following:
A description and map of the projects 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.
A description and map of the noise-sensitive environment, including any sensitive noise receptors (i.e., residences, hospitals, libraries, schools, places of worship and other facilities where quiet is important) within two miles of the proposed facilities.
A survey and report prepared by a qualified engineer that analyzes the preexisting ambient noise regime, 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 receptors, located within two miles of the proposed project site.
A description and map showing the potential noise impacts, including estimates of expected noise impacts upon construction and operation workers and estimates of expected noise levels at sensitive receptor locations.
A description and map of the cumulative noise impacts.
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 levels in this article.
Identification of any problem areas.
Manufacturers' noise design and field testing data, both audible dB(A) and low frequency (deep bass vibration), for all proposed structures.
A report that out lines issues and considerations for individuals that use hearing aids.
A geotechnical report shall be furnished which shall, at a minimum, include the following:
Ice throw calculations: a report from a New York State professional engineer that calculates the maximum distance that ice from the turbine blades could he thrown. The basis of the calculation and all assumptions must be disclosed.
Blade throw calculations: a report from a New York State professional engineer that calculates the maximum distance that pieces of the turbine blades could be thrown. The basis of the calculation and all assumptions must be disclosed.
Catastrophic tower failure: a report from the turbine manufacturer stating the wind speed and conditions that the turbine is designed to withstand, including all assumptions.
FAA notification: a copy of written notification to the Federal Aviation Administration.
Utility notification: utility interconnection data and a copy of a written notification to the utility of the proposed interconnection.
Notification to microwave communications link operators. An application that includes any wind turbine 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.
Floodplain. An application that includes any wind turbine 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.
Other information: such additional information as may be reasonably requested by the Technical Support Department, Code Enforcement Officer, Planning Board, or City Council.
Special use permits issued for wind energy conversion systems shall be subject to the following conditions:
Setbacks. The applicant shall adhere to the following setbacks:
From property lines (excluding residential zones and the BRA):
A minimum of 1.5 times the total WECS height from any property line, excluding adjoining lot lines of project participants.
From aboveground transmission lines greater than 12 kilovolts:
A minimum of 1.5 times the total WECS height from any aboveground transmission line greater than 12 kilovolts, excluding where transmission lines are located within PUD Zones and those transmission lines associated with the WECS and in the BRA.
Notwithstanding the provisions set forth in these subsections, such setbacks from lot lines do not apply if the application is accompanied by a legally enforceable agreement for a period of 25 years or the life of the permit, whichever is longer, that the adjacent landowner agrees to the elimination of the setback.
Maximum overall height. The maximum overall height of any wind energy conversion system shall be 450 feet. The maximum height shall be measured from the ground elevation to the top of the tip of the blade in the vertical position.
Signage.
Signage limited. No advertising sign shall be placed or painted on any commercial wind energy facility.
Color and finish; camouflage facilities.
Color and finish. Wind turbines shall be painted a nonobtrusive (e.g., light environmental color such as white, gray, or beige) color that is nonreflective.
Camouflage facilities. The design of commercial wind energy facility 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.
Lighting plan required. The applicant shall submit a commercial wind energy facility 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.
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 wind energy conversion system.
Safety and security requirements. The applicant shall adhere to the following safety and security requirements:
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. 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.
Grounding. All structures which may be charged with lightning shall be grounded according to applicable electrical codes.
Wiring. All wiring between the wind turbines and the wind energy facility substation shall be underground. 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.
All transmission lines from wind energy conversion systems to oil-site substations shall be underground. The City Council shall have the authority to waive this requirement if the owner of the property upon which the transmission line will be sited consents to aboveground transmission lines or if the City Council has sufficient engineering data submitted by the applicant to demonstrate that underground transmission lines are unfeasible.
Ground clearance. The blade tip of any wind turbine shall, at its lowest point, have a ground clearance of not less than 50 feet.
Climb ability. Wind turbine towers shall not be climbable up to 15 feet above ground level.
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.
Self-supporting structures. All wind energy conversion system structures shall be of monopole construction (single pole). No lattice structures or guy-wire-supported structures shall be permitted.
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.
Ice throw. The permit shall determine the acceptable ice throw range based on the activities in the area, location and calculations of the ice throw.
Noise requirements. The applicant shall adhere to the following noise requirements:
Compliance with noise regulations required. A WECS permit shall not be granted unless the applicant demonstrates that the proposed project complies with all noise regulations.
Noise study required. The applicant shall submit a noise study based on the requirements set out in Subsection B of this section. The Planning Board and Technical Support Department shall determine the adequacy of the noise study and, if necessary, may require further submissions. The noise study shall consider the following:
Noise setbacks. The City Council 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.
Audible noise standard. The audible noise standard due to wind turbine operations shall not be created which causes the noise level at the boundary of the proposed project site to exceed the greater of 45 dB(A) for more than five minutes out of any one-hour time period or 6 dB(A) greater than the prevailing background noise.
Operations, low-frequency noise. A WECS 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.
Noise complaint and investigation process required. The applicant shall submit a noise complaint and investigation process. The Planning Board shall determine the adequacy of the noise complaint and investigation process.
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:
Fireproof or fire-resistant building materials.
Buffers or fire-retardant landscaping.
Availability of water.
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.
Provision of training and fire-fighting equipment for local fire protection personnel.
Impact on wildlife species and habitat. The applicant shall adhere to the following regarding the impact on wildlife species and habitat:
Endangered or threatened species. Development and operation of a WECS 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 City of Lackawanna Comprehensive Plan and/or the studies and plans of the regional planning commissions based on criteria established by federal or state regulatory agencies.
Migratory birds. Development and operation of a commercial wind energy facility shall be evaluated based on SEQRA findings.
Unsafe and inoperable wind energy facilities; site reclamation. The applicant shall adhere to the following:
Removal and site restoration. Unsafe WECS facilities, inoperable WECS facilities and WECS facilities for which the permit has expired shall be removed by the owner at his or her expense. All safety hazards created by the installation and operation of the commercial wind energy facility shall be eliminated, and the site shall be restored to its natural condition to the extent feasible as per Subsection B(11)(b) of this section. A bond or other appropriate form of security shall be required to cover the cost of the removal and site restoration at the time of building permit application. The bond shall be payable to the City of Lackawanna for the removal of nonfunctional towers and appurtenant facilities in an amount to be determined by the City for the period of the life of the facility. Any fund established may consist of a letter of credit from a State of New York licensed financial institution. All costs of the financial security shall be borne by the applicant.
Removal and site restoration plan required. The applicant shall submit a removal and site restoration plan and removal and site restoration plan cost estimate to the Code Enforcement Officer and City Council for review and approval. 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 four 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 WECS facility. 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.
Public nuisance. Every unsafe WECS facility and every inoperable WECS facility is hereby declared a public nuisance which shall be subject to abatement by repair, rehabilitation, demolition, or removal. An inoperable WECS facility 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.
"Inoperable" defined. A commercial wind energy facility shall be deemed inoperable if it has not generated power within the preceding six months.
Interference with residential television, microwave and radio reception. The applicant must submit proof that the proposed construction of the 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.
Compliance with FAA regulations. All commercial wind energy siting shall comply with Federal Aviation Administration (FAA) regulations.
Locking mechanisms to limit radar interference required. All WECS facilities shall include a locking mechanism which prevents the blades from rotating when not producing power, in order to limit airport radar interference or "clutter." This provision does not apply while the WECS is "free-wheeling" during startup and shutdown. The City Council may modify or eliminate the requirement for a locking mechanism if sufficient evidence is presented that no significant airport radar interference or "clutter" will be caused by the WECS facility.
Erosion control. The applicant shall adhere to the following:
Erosion control plan required. Before the City of Lackawanna shall issue a grading or building permit for the WECS facility, the applicant shall submit an erosion control plan to the Technical Support Department for 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 to minimize erosion or sedimentation.
If the proposed project disturbs over one acre, the applicant must comply with the New York State Department of Environmental Conversion SPDES General Permit for Stormwater Discharges from Construction Activity (Permit No. GP-02-01). A copy of the notice of intent (N.O.I.) and stormwater pollution prevention plan (SWPPP), as required by the general permit, must be filed with the City of Lackawanna prior to construction. Per the general permit, construction cannot begin until the required time period for NYSDEC review has passed.
Certification. The applicant shall provide the following certifications:
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 licensed and registered in New York. The engineer shall certify compliance with good engineering practices and compliance with the appropriate provisions of the Uniform Building and Construction Code that have been adopted in New York State.
Certification of post construction. After completion of the wind energy conversion system, the applicant shall provide a postconstruction certification from a licensed professional engineer licensed and 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.
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 Electric Code that have been adopted by New York State.
Certification of rotor overspeed control. The rotor overspeed control system shall be certified in writing by a mechanical engineer licensed and registered in New York State. The engineer shall certify compliance with good engineering practices.
Certification of project. A certificate of completion must be supplied by the applicant and approved by the City of Lackawanna Code Enforcement Officer.
Monitoring requirements for wind energy conversion systems.
Right to enter premises for monitoring. Upon reasonable notice, City of Lackawanna officials or their designated representatives may enter a lot on which a WECS facility 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.
Avian/bat impact study plan. The applicant shall submit a plan for monitoring the avian impact of the commercial wind energy facility to the Planning Board for its review and approval. Such plan shall document and follow accepted scientific study procedures. In addition, the applicant shall agree to submit a report to the Planning Board according to the requirements of the applicable regulatory agencies that identifies all dead birds found within 500 feet of the commercial wind energy facility.
Periodic reporting required. The applicant shall agree to submit periodic monitoring reports to the City. The report shall contain data on the operations and environmental impacts and shall be in the form prescribed by the Code Enforcement Officer.
Power production report required. The applicant shall agree to submit as requested by the City Council a power production report to the City. The power production report shall include actual power production in kilowatt hours for each WECS facility.
Inspections. Unless waived by the City Council, wind turbines or poles over 150 feet in height shall be inspected annually by a New York State licensed professional engineer that has been approved by the City or at any other time upon a determination by the City's Code Enforcement Office that the wind turbine, tower or pole may have sustained structural damage, and a copy of the inspection report shall be submitted to the City 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 City of Lackawanna Code Enforcement Officer can issue a stop-work order at any time for any violations of the permit.
Postconstruction. 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 a complaint from the City of Lackawanna Code Enforcement Officer, the permit holder contact person shall have seven working days to reply to the City in writing.
Application and development fees and costs.
Application fee. The applicant shall pay a fee of $5,000 per wind energy system associated with the City of Lackawanna's review and processing of the application. The applicant shall submit a deposit with the application in the amount as set forth above. 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.
Development fees to be paid. A one-time or periodic fee and a requirement to provide public works or services may be imposed as a condition of a commercial wind energy system permit. Such fees must be related to the public need created by the wind energy development. The purposes for which the permit fee may be used include, but are not limited to, providing roads required by the wind development, providing fire protection services, and establishing and operating a monitoring system.
Proof of insurance. Prior to the issuance of a building permit, the applicant shall provide the City Clerk with proof of insurance in a sufficient dollar amount to cover potential personal and property damage associated with the construction and operation thereof.
Findings.
Findings necessary to grant a WECS facility permit. In order to grant a WECS facility permit, the City of Lackawanna shall review the application and all filings by any other party and conduct a public hearing. A commercial wind energy facility permit shall not be granted unless the City of Lackawanna makes the following findings based on substantial evidence:
Consistent with the Comprehensive Plan. The proposed commercial wind energy facility project is consistent with the Comprehensive Plan of the City of Lackawanna.
Will not unreasonably interfere with the orderly land use and development plans. The proposed WECS facility will not unreasonably interfere with the orderly land use and development plans of the City of Lackawanna.
Benefits to the applicant and public will exceed any burdens. The benefits of the proposed WECS facility project to the applicant and the public will exceed any burdens.
Not detrimental to the public health, safety and general welfare of the community. The proposed WECS facility will not he detrimental to the public health, safety or general welfare of the community.
The City Council 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.
WECS permits approved by the City Council of the City of Lackawanna shall be renewed annually. The permit holder shall make renewal application to the Supervising Building Inspector 60 days prior to expiration to allow for inspection and full compliance with all applicable laws and regulations. The renewal application will include a fee as set by the City Council of no more than $500 per wind energy system.
The special use permit shall not be assignable or transferable without the approval of the City Council.
Amendments to special use permit. Any changes or alterations postconstruction to the WECS shall be done only by amendment to the special use permit and subject to all requirements of this article.
The applicant licensee shall agree to indemnify and hold the City, its City Council, officers, agents and employees harmless from any liability imposed upon the City, its officers, agents and/or employees arising from the construction, operation or maintenance of the WECS.
The applicant shall certify to the City that appropriate security will be in place to restrict access to the WECS and facilities following completion of construction.
§ 230-86 Wind measurement towers.
[Amended 3-5-2008]
The City Council acknowledges that prior to construction of a WECS, a wind site assessment is conducted to determine the wind speeds and feasibility of using particular sites. Installation of wind measurement towers, also known as "anemometer ("met") towers," shall be permitted as a special use in the same zoning districts as the WECS.
An application for a wind measurement tower shall include:
Name, address and telephone number of the applicant. If the applicant is represented by an agent, the application shall include the name, address and telephone number of the agent as well as an original signature of the applicant authorizing the representation.
Name, address and telephone number of the property owner. If the property owner is not the applicant, the application shall include a letter or other written permission signed by the property owner confirming that the property owner is familiar with the proposed applications and authorizing the submission of the application.
Address of each proposed tower site, including Tax Map section, block and lot number.
Site plan.
Decommissioning plan, including a security bond or cash for removal.
The City Council may attach such conditions as it deems appropriate to variance approvals as it deems necessary to minimize the impact of the variance.
The "Met" towers installed prior to February 1, 2008 shall be exempt from the requirements set forth in this section.
§ 230-87 Permit revocation.
Testing fund. A special use permit shall contain a requirement that the application fund periodic noise testing by a qualified independent third-party acoustical measurement consultant, which may be required as often as every two years or more frequently upon request of the City Council in response to complaints by residents. The scope of the noise testing shall be to demonstrate compliance with the terms and conditions of the special use permit and this article and shall also include an evaluation of any complaints received by the City. The applicant shall have 90 days after written notice from the City Council to cure any deficiency. An extension of the ninety-day period may be considered by the City Council, but the total period may not exceed 180 days.
Operation. 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 and other permit conditions. Should a WECS become inoperable, or should any part of the WECS be damaged, or should a WECS violate permit conditions, the owner or operator shall remedy the situation within 90 days after written notice from the City Council. The applicant shall have 90 days after written notice from the City Council to cure any deficiency. An extension of the ninety-day period may be considered by the City Council, but the total period may not exceed 180 days.
Notwithstanding any other abatement provision under this article, if the WECS is not repaired or made operational or brought into permit compliance after said notice, the City 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, either order remedial action within a particular timeframe or order revocation of the wind energy permit or the WECS and require the removal of the WECS within 90 days. If the WECS is not removed, the City Council shall have the right to use the security posted as part of the decommission plan to remove the WECS.
§ 230-88 Fees and costs.
[Amended 3-5-2008]
All fees required under this article shall be approved by the City Council by resolution. Nothing in this article shall he read as limiting the ability of the City to enter into host community agreements with any applicant to compensate the City for expenses or impacts on the community. The City shall require any applicant to enter into an escrow agreement to pay the engineering and legal costs of any application review, including the review required by SEQRA.
§ 230-89 Enforcement; penalties for offenses; remedies.
Any person owning, controlling or managing any building, structure or land who shall undertake a WECS or wind measurement tower in violation of this article or in noncompliance with the terms and conditions of any permit issued pursuant to this article or any order of the 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 City 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 article, including the terms and conditions imposed by any permit issued pursuant to this article, in addition to other remedies and penalties herein provided, the City 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.