North East Township Erie County
City Zoning Code
City Zoning Code
ARTICLE XIII
Wind Energy Facilities
§ 350-101 Title.
This article shall be known as the "Wind Energy Facility Ordinance for North East Township" and shall be incorporated into and become a part of this chapter.
§ 350-102 Purpose.
The purpose of this article is to establish an area permitting the construction and operation of wind energy facilities in North East Township, subject to rules and regulations intended to protect the public health, safety and welfare.
§ 350-103 Definitions.
As used in this article, the following terms shall have the meanings indicated:
The person or entity filing an application under this article.
The entity or entities having an equity interest in the wind energy facility, including their respective successors and assigns.
The distance measured from the surface of the tower foundation to the height of the wind turbine hub, to which the blades are attached.
Any landowner except those on whose property all or a portion of a wind energy facility is authorized pursuant to an agreement with the facility owner or operator.
A residence, school, hospital, church, public library or other building used for public gathering that is occupied or in use when the permit application is submitted.
The entity responsible for the day-to-day operation and maintenance of the wind energy facility.
The distance measured from the surface of the tower foundation to the highest point of the turbine rotor plane.
The area as shown on the map attached hereto, made a part hereof and labeled "Wind Energy District Map."[1]
An electric-generating facility whose main purpose is to supply electricity, consisting of one or more wind turbines and other accessory structures and buildings, including substations, meteorological towers, electrical infrastructure, transmission lines and other appurtenant structures and facilities.
A wind energy conversion system that converts wind energy into electricity through the use of a wind turbine generator and includes the nacelle, rotor, tower, and pad transformer, if any.
[1]
Editor's Note: Said map is included as an attachment to this chapter.
§ 350-104 Applicability.
A.
This article applies to all wind energy facilities proposed to be constructed after the effective date of this article, except that this article is not intended to apply to stand-alone wind turbines less than 200 feet in total height and constructed primarily for residential or farm use on the property where the wind turbine is located.
B.
Wind energy facilities constructed prior to the effective date of this article shall not be required to meet the requirements of this article, provided that any physical modification to an existing wind energy facility that materially alters the size, type or number of wind turbines or other equipment shall require a permit under this article.
§ 350-105 Permitted use.
A wind energy facility shall be considered a permitted only in the Wind Energy District.
§ 350-106 Permit requirement.
A.
No wind energy facility, or addition of a wind turbine to an existing wind energy facility, shall be constructed or located within North East Township unless a zoning permit has been issued to the facility owner or operator, approving construction of the facility under this article.
B.
The zoning permit application or amended permit application shall be accompanied with a fee as set by resolution of the Board of Supervisors for each wind turbine.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
C.
Any physical modification to an existing or permitted wind energy facility that materially alters the size, type or number of wind turbines or other equipment shall require a permit modification under this article, and a fee as set forth in Subsection B, above, shall be paid. Like-kind replacements shall not require a permit modification.
§ 350-107 Permit application.
A.
The permit application shall demonstrate that the proposed wind energy facility will comply with this article.
B.
The application shall contain the following:
(1)
A narrative describing the proposed wind energy facility, including an overview of the project; the project location; the approximate generating capacity of the wind energy facility; the approximate number, representative types and height or range of heights of wind turbines to be constructed, including their generating capacity, dimensions and respective manufacturers; and a description of ancillary facilities.
(2)
An affidavit or similar evidence of agreement between the property owner(s) and the facility owner or operator demonstrating that the facility owner or operator has the permission of the property owner(s) to apply for necessary permits for construction and operation of the wind energy facility.
(3)
Identification of the properties on which the proposed wind energy facility will be located, and the properties adjacent to where the wind energy facility will be located and copies of all recorded setback waivers.
(4)
A site plan showing the planned location of each wind turbine, property lines, setback lines, access road and turnout locations, substation(s), electrical cabling from the wind energy facility to the substation(s), ancillary equipment, buildings, and structures, including permanent meteorological towers, associated transmission lines, and layout of all structures within the geographical boundaries of any applicable setback.
(5)
Documents related to decommissioning.
(6)
A hydrologic analysis of surface and subsurface water systems conducted by a certified hydrogeologist. The study shall address all potential affects the construction and operation of the wind turbine could have on the aquifer and existing water wells, springs and other water sources. The study shall set forth the nature and extent of any potential effects on the aquifer, water wells, springs and other water sources, along with the likelihood thereof.
[Amended 5-19-2014 by Ord. No. 2014-003]
(7)
A flicker study demonstrating that flicker shall not exceed 25 hours per twelve-month period at any occupied structure, unless waived.
(8)
Other relevant studies, reports, certifications and approvals as may be reasonably requested by North East Township to ensure compliance with this article and such permits as are required by applicable state or federal law, rule or regulations.
C.
Within 30 days after receipt of a permit application, the North East Township Zoning Officer will determine whether the application is complete and advise the applicant accordingly.
D.
Within 60 days of a completeness determination, North East Township will schedule a public informational meeting. The applicant shall present the project to the public and municipal officials and answer questions about the project. The public shall be afforded an opportunity to ask questions and provide comment on the proposed project.
E.
Within 120 days of a completeness determination, or within 45 days after the informational meeting, whichever is later, the Zoning Officer will issue or deny the permit.
F.
Throughout the permit process, the applicant shall promptly notify North East Township of any changes to the information contained in the permit application.
G.
Changes to the pending application that do not materially alter the initial site plan may be adopted without a renewed informational meeting.
§ 350-108 Design and installation.
A.
Design safety certification. The design of the wind energy facility shall conform to applicable industry standards, including, but not limited to, those of the American National Standards Institute. The applicant shall submit certificates of design compliance obtained by the equipment manufacturers from Underwriters Laboratories, Det Norske Veritas, Germanischer Lloyd Wind Energies, or other similar certifying organizations. Wind energy facilities shall be promptly modified to comply with changes in design standards.
B.
Uniform Construction Code. The wind energy facility shall comply with the Pennsylvania Uniform Construction Code, 34 Pa. Code §§ 403.1 through 403.142, and a building permit or permits shall be obtained and all related fees paid prior to construction.
C.
Controls and brakes. All wind energy facilities shall be equipped with a redundant braking system. This includes both aerodynamic overspeed controls (including variable pitch, tip, and other similar systems) and mechanical brakes. Mechanical brakes shall be operated in a fail-safe mode. Stall regulation shall not be considered a sufficient braking system for overspeed protection. Ice sensors and control systems shall be employed to limit potential damage from falling ice.
D.
Electrical components. All electrical components of the wind energy facility shall conform to relevant and applicable local, state and national codes and relevant and applicable international standards.
E.
Visual appearance; power lines.
(1)
Wind turbines shall be a nonobtrusive color such as white, off-white or gray.
(2)
Wind energy facilities shall not be artificially lighted, except to the extent required by the Federal Aviation Administration or other applicable authority that regulates air safety.
(3)
Wind turbines shall not display advertising, except for reasonable identification of the turbine manufacturer, facility owner and operator.
(4)
On-site transmission power lines shall be placed underground and all off-site power lines shall, to the maximum extent possible, be placed underground.
F.
Warnings.
(1)
A clearly visible warning sign concerning voltage must be placed at the base of all pad-mounted transformers and substations.
(2)
Visible, reflective, colored objects, such as flags, reflectors, or tape, shall be placed on the anchor points of guy wires and along the guy wires up to a height of 10 feet from the ground.
H.
Turbine height shall not exceed 550 feet.
§ 350-109 Setbacks.
A.
Wind turbines shall comply with all of the following setback requirements:
(1)
Occupied buildings. Wind turbines shall be set back from the nearest occupied building a distance of not less than five times the hub height, as measured from the center of the wind turbine base to the nearest point on the foundation of the occupied building.
(2)
Property lines. All wind turbines shall be set back from the nearest property line a distance of not less than the normal setback requirements for that zoning classification or 1.75 times the turbine height, whichever is greater. The setback distance shall be measured to the center of the wind turbine base.
(3)
Public roads. All wind turbines shall be set back from all public roads a distance of not less than 1.1 times the turbine height, as measured from the nearest right-of-way line of all public roads to the center of the wind turbine base.
B.
Accessory structures and buildings shall be located not less than 120 feet from all road rights-of-way and property lines of nonparticipating properties.
§ 350-110 Waiver of setbacks.
A.
Property owners may waive the setback requirements in § 350-109A(1) (occupied buildings) and § 350-109A(2) (property lines), except for normal setback requirements for the zoning classifications, by signing a waiver that sets forth the applicable setback provision(s) and the proposed changes.
B.
The written waiver shall notify the property owner(s) of the setback required by this article, describe how the proposed wind energy facility is not in compliance, and state that consent is granted for the wind energy facility to not be set back as required by this article.
C.
Any such waiver shall be recorded in the Recorder of Deeds Office for Erie County. The waiver shall describe the properties benefitted and burdened and advise all subsequent purchasers of the burdened property that the waiver of setback shall run with the land and may forever burden the subject property.
§ 350-111 Use of public roads.
A.
The applicant shall identify all state and local public roads to be used within North East Township to transport equipment and parts for construction, operation or maintenance of the wind energy facility.
B.
North East Township's Engineer or a qualified third-party engineer hired by North East Township, and both to be paid for by the applicant, shall document road conditions prior to construction. The Engineer shall document road conditions again 30 days after construction is complete or as weather permits.
C.
North East Township will require bonding of the roads in compliance with state regulations and applicable Township ordinances.
D.
Any road damage caused by the applicant or its contractors shall be repaired at the applicant's expense, in accordance with applicable Township ordinances and state regulations.
E.
The applicant shall demonstrate that it has appropriate financial assurance to ensure the repair of damaged roads.
§ 350-112 Local emergency services.
A.
The applicant shall provide a copy of the project summary and site plan to local emergency services, including paid or volunteer Fire Department(s).
B.
Upon request of the Township, the applicant shall cooperate with emergency services to develop and coordinate implementation of an emergency response plan for the wind energy facility.
C.
Applicant shall obtain a street address for each wind turbine.
§ 350-113 Noise; shadow flicker; groundwater.
A.
Audible sound from a wind energy facility shall not exceed 50 dBA, as measured at the property line of a nonparticipating landowner's property. Methods for measuring and reporting acoustic emissions from wind turbines and the wind energy facility shall utilize calibrated sound level instrumentation that complies with the latest revision of ANSI S1.4, Specifications of Sound Level Meters, Type 1 or better, and shall be conducted by an appropriately qualified individual. Upon request of the Township, the facility owner and operator shall institute testing and provide all data showing compliance.
B.
The facility owner and the operator shall make every effort to minimize shadow flicker to any occupied building. Unless waived by the property owner by recorded written document as described in § 350-110, the presence of shadow flicker shall not exceed 25 hours in total per twelve-month period. In addition, the facility owner and the operator shall pay for or provide suitable window shades and/or trees to mitigate the effect of permitted shadow flicker.
C.
Groundwater.
[Amended 5-19-2014 by Ord. No. 2014-003]
(1)
All wind energy facilities shall be designed and constructed in such fashion as to avoid any disruption and/or interference with private wells, springs and/or other sources of water. No wind energy facility shall be constructed when the hydrologic study shows that there is a substantial likelihood of adverse effect upon water wells, springs and/or other water sources. In the event a problem occurs with a private water source, which problem is proximately caused by the wind energy facility, the facility owner and the operator shall immediately, and within six months, permanently supply potable water in such quantity and quality as was supplied by the original private water source.
(2)
If the hydrogeologist report, as required by § 350-107B(6), should reveal a potential adverse impact upon existing private water wells, the facility owner and operator shall post a bond, acceptable to the Township, in the amount of $20,000 for the first well potentially affected and an additional $10,000 for each and every additional well which could potentially be affected. This bond is established for the purpose of ensuring compliance with the requirements of this subsection. If the facility owner and operator should fail to comply with the requirements as set forth herein, the bond may be called and the funds applied to the costs of replacing and/or restoring affected water sources. The liability of the facility owner and the operator shall not be limited to the amount of the bond.
§ 350-114 Signal interference.
The facility owner or the operator shall make every effort to avoid any disruption or loss of radio, telephone, television or similar signals and shall take all reasonable steps to mitigate any harm caused by the wind energy facility. In the event such a loss or disruption should occur, the facility owner and the operator shall take reasonable steps to mitigate the effect.
§ 350-115 Liability insurance.
There shall be maintained a current general liability policy covering bodily injury and property damage with limits of at least $10,000,000 per occurrence and $20,000,000 in the aggregate. The facility owner or operator shall ensure that current certificates of insurance are continuously on file at North East Township.
§ 350-116 Decommissioning.
A.
The facility owner and operator shall, at its expense, complete decommissioning of the wind energy facility, or individual wind turbines, within 12 months after the end of the useful life of the facility or individual wind turbines. The wind energy facility or individual wind turbines will presume to be at the end of their useful life if no electricity is generated for a continuous period of 12 months.
B.
Decommissioning shall include removal of wind turbines, buildings, cabling, electrical components, roads, foundations to a depth of 36 inches, and any other associated facilities.
C.
Disturbed earth shall be graded and reseeded, unless the landowner requests, in writing, that the access roads or other land surface areas not be restored.
D.
An independent and certified professional engineer shall be retained by the facility owner or operator to estimate the total cost of decommissioning ("decommissioning costs") without regard to salvage value of the equipment. Said estimates shall be submitted to North East Township prior to construction and every fifth year thereafter.
E.
The facility owner or operator shall post and maintain decommissioning funds in an amount equal to decommissioning costs. The decommissioning funds shall be posted and maintained with a bonding company or federal- or commonwealth-chartered lending institution chosen by the facility owner or operator, provided that the bonding company or lending institution is authorized to conduct such business within the commonwealth and is approved by North East Township.
F.
Decommissioning funds may be in the form of a performance bond, surety bond, letter of credit or other form of financial assurance as may be acceptable to North East Township.
G.
If the facility owner or operator fails to complete decommissioning within the period prescribed by Subsection A, then the landowner shall have six months to complete decommissioning.
H.
If decommissioning is not completed within the periods prescribed by Subsections A and G, then North East Township may take such measures as necessary to complete decommissioning. The entry into and submission of evidence of a participating landowner agreement to North East Township shall constitute agreement and consent of the parties to the agreement, their respective heirs, successors and assigns that North East Township may take such action as necessary to implement the decommissioning plan.
I.
The decommissioning funds shall be released when the facility owner or operator has demonstrated and North East Township concurs that decommissioning has been satisfactorily completed, or upon written approval of North East Township, in order to implement the decommissioning plan.
§ 350-117 Public inquiries and complaints.
A.
The facility owner and operator shall maintain a phone number and identify a responsible person for the public to contact with inquiries and complaints throughout the life of the project. This person shall coordinate mitigation efforts as required by this article.
B.
The facility owner and operator shall make reasonable efforts to respond to all public inquiries and complaints within five business days.
§ 350-118 Compliance required.
It shall be unlawful for any person, firm, or corporation to violate or fail to comply with or take any action which is contrary to the terms of this article, or any permit issued under this article, or cause another to violate or fail to comply, or to take any action which is contrary to the terms of this article or any permit issued under this article.
§ 350-119 Severability.
If any section, subsection, sentence, clause or phrase or portion of this article is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portion thereof.