Somerset Town City Zoning Code
ARTICLE XIII
Supplemental Regulations
§ 205-43 Uses requiring special use permit.
A.
The uses contained in this article may be permitted, provided that a special use permit is obtained from the Planning Board under the terms and specifications herein. Whereas the necessity for certain specific uses is recognized and at the same time appreciating the fact that they or any one of them may be, or become, inimical to the public health, safety and general welfare of the community if located without consideration to the existing conditions and surroundings, the following standards and proceedings are hereby established which are intended to provide the Planning Board with a guide for the purpose of reviewing certain uses not otherwise permitted in this chapter. The Planning Board shall review and administer applications for the following uses according to procedures spelled out for the Planning Board under Article XX of this chapter.
[Amended 10-3-2011 by L.L. No. 5-2011]
B.
In specific cases which are not clearly covered by other existing ordinances, special use permits will be required. Examples would be cemeteries, pet cemeteries and other uses not specifically covered in other sections of these ordinances.
§ 205-43.1 Personal wireless telecommunications service facilities.
[Added 2-11-1997 by L.L. No. 2-1997]
A.
The placement, construction and major modification of all personal wireless telecommunications facilities within the boundaries of the Town of Somerset shall be permitted only by special permit, upon site plan approval issued by the Planning Board herein and issuance of a building permit, and subject to all the provisions of this chapter and all other applicable regulations.
B.
Any new telecommunications antenna which is to be attached to any structure other than a telecommunications tower (i.e., smokestack, building, etc.) shall also comply with the requirements of this section to the extent applicable.
[Amended 5-14-2013 by L.L. No. 2-2013]
C.
All telecommunications towers existing on February 11, 1997 (the effective date of this local law), shall be allowed to continue their usage as they presently exist and additional new telecommunications antennas shall be permitted thereon without regard to the zoning district in which the tower is located. New construction other than routine maintenance on an existing telecommunications tower shall comply with the requirements of this chapter.
D.
Applications under this section shall be made as follows:
(1)
Co-location. New telecommunications facilities shall be sited on existing telecommunications facilities or in areas already in use for telecommunications and/or utility distribution lines in order to preserve the aesthetic and scenic value of the Town unless the applicant demonstrates that collocation is not feasible.
(2)
Applicants for a special permit to place, construct or modify personal wireless telecommunications facilities within the Town of Somerset shall submit the following information to the Planning Board for its referral to a professional engineer or consultant for review and recommendation:
(a)
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, existing treelines and proposed elevations.
(b)
Preliminary report describing:
[1]
Feasibility of co-location on existing structures and telecommunications facilities.
[2]
Applicant's full map and grid coverage in the Town.
[3]
Surrounding topography and relation to line-of-sight transmission.
[4]
Available road access, electric power and land-based telephone lines and/or microwave link capability.
[5]
Required improvements or construction activities, including those within the public right-of-way or lands owned or controlled by the Town of Somerset.
[6]
Identity of location, ownership and usage of currently existing telecommunications facilities within the Town.
[7]
Plans for construction of telecommunications accessory equipment building or structure and landscaping plan.
[8]
Proposed mitigation measures for visual impacts.
[9]
Proposed safety measures.
[10]
Compatibility with existing telecommunications networks, New York State Thruway Authority telecommunications network and public safety and emergency networks, such as fire, ambulance, police and 911.
(c)
In the case of an application for a telecommunications tower, additional information shall be provided describing the telecommunications tower height and design, including a cross-section of the structure; the telecommunications tower's compliance with applicable structural standards; the telecommunications tower's capacity, including the number and type of telecommunications antennas it can accommodate and the basis of calculation of capacity.
(d)
In the case of a telecommunications antenna mounted on an existing structure, additional information shall be provided indicating the existing structure's suitability to accept the telecommunications antenna; the proposed method of affixing the telecommunications antenna to the structure; and complete details of all fixtures and couplings, and the precise point of attachment shall be indicated.
(e)
Filing of certificate of public convenience and necessity in this geographic area, from New York State Public Service Commission for applicant with the Town.
(f)
Demonstration that the proposed site is the most appropriate available site within the immediate area for the location of the cellular telephone facility.
(g)
Inventory of existing telecommunications facilities within the Town, outlining opportunities for shared use as an alternative to the proposed use. The applicant must demonstrate that the proposed telecommunications tower or telecommunications antenna cannot be accommodated on an existing approved telecommunications tower or facility.
(h)
Filing map with Town showing all of applicant's proposed facilities within the geographic area covered by the certificate of public convenience and necessity.
(i)
Proof of certified mail announcements to all other telecommunications providers in the area declaring the applicant's sharing capabilities and/or siting needs.
(j)
A map showing the location of the premises for which the permit is sought and a sketch plan showing all features of the facility necessary for providing road access, electrical service, land-based telephone line connection and/or microwave link capability within the property boundaries of the proposed location.
(k)
In the case of an application for a telecommunications antenna or tower to be located on private lands owned by a party other than the applicant or the Town, a copy of the lease agreement, without requiring the amount of rent, with the property owner shall be provided to the Planning Board.
(l)
Such other information as may be required by the Planning Board or its engineer.
(m)
All plans or specifications required by the State Education Law to be prepared by or under supervision of a professional engineer (PE), surveyor or architect shall be stamped and signed by such licensee.
E.
Special permits issued for personal wireless telecommunications service facilities shall be subject to the following general conditions:
(1)
Separation distance. Telecommunications facilities shall be separated from all residential dwellings by a distance of 250 feet or 1 1/2 times the height of the tower, whichever is greater.
(2)
All telecommunications accessory structures shall comply with zoning setback regulations in the affected zone. In any event, a telecommunications tower shall be set back a distance at least equal to its height. Additional setbacks may be required by the Planning Board in order to provide for the public safety.
(3)
Minimal visual impacts. All telecommunications towers and telecommunications antennas shall be sited to have the least possible practical visual effect on the environment.
(4)
Lighting. Telecommunications towers shall not be artificially lighted unless otherwise required by the Federal Aviation Administration or other federal, state or local authority.
(5)
Material and paint. Telecommunications towers and telecommunications antennas shall be of a galvanized finish, or painted gray above the surrounding tree line and gray or green below the tree line; the mountings of telecommunications antennas shall be nonreflective and of the appropriate color to blend with their backgrounds, unless otherwise required by the FAA.
(6)
Screening.
(a)
Screening may be required by the Planning Board to screen portions of the telecommunications tower and tower base from nearby residential property or important views.
(b)
Architectural character. Design measures shall be used to integrate the facilities with existing buildings in the area.
(7)
Height. The size of telecommunications sites shall be limited to the minimum required to provide proposed telecommunications services but shall include consideration of height needed for co-location.
(8)
Access roads. Existing roadways shall be used for access to the site whenever possible.
(9)
Telecommunications accessory structures. Telecommunications support facilities such as vaults and equipment rooms, utilities and other support structures shall be screened, placed underground, depressed, earth bermed or sited below the ridge line to the greatest extent feasible, particularly in areas of high visibility.
(10)
Telecommunications antennas. Due to their high visibility, dish and parabolic telecommunications antennas shall be located at as low an elevation as possible without compromising the function of the device, preferably on the sides of buildings or ground mounted on slopes below the ridge line wherever possible, rather than elevated on telecommunications towers. Microwave and satellite dishes shall be of mesh construction wherever possible.
(11)
Utility service. At the discretion of the Board, electrical and land-based telephone utilities extended to serve telecommunications sites shall be undergrounded on the applicant's property.
(12)
Security provisions. Each site shall have a security program, including physical features such as fencing, anti-climbing devices or elevating ladders on the telecommunications towers, and/or monitoring either by staff or electronic devices, to prevent unauthorized access and vandalism.
(13)
Safe zone. Telecommunications towers shall be designed so that in the event of failure they will fall within the setback area of the site and/or away from adjacent development.
(14)
Noise. Noise-producing equipment shall be sited and/or insulated to minimize noise impacts on adjacent properties.
(15)
Annual inspection and report. Unless waived by the Board, telecommunications towers over 100 feet in height, including towers existing on the effective date hereof, shall be inspected annually by a licensed professional engineer or at any other time upon a determination by the Town's Building Inspector that the telecommunications tower may have sustained structural damage, and a copy of the inspection report shall be submitted to the Town Code Enforcement Officer.
(16)
Removal. All telecommunications facilities, including but not limited to antennas, towers and accessory structures, shall be dismantled and removed from the site when they have been inoperative, abandoned or had their special permit revoked for six months. Applicants shall post a bond or other suitable undertaking as a condition of the use permit in order to guarantee removal of abandoned structures.
(17)
Post-installation field report. A post-installation field report identifying the facility's coverage area, the telecommunications tower's maximum capacity, committed capacity and unused capacity, if any, and co-located users of the telecommunications tower shall be submitted to the Town.
(18)
Proof of insurance. The applicant shall annually 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.
(19)
Special permit term. Special permits granted pursuant to this section shall be issued for a term of one year. Permits may be renewed yearly, without the need of a public hearing.
(20)
To the extent determined by the Board, the applicant shall provide for the placement of antennas and other telecommunication devices on its facilities for public safety organizations.
(21)
The applicant shall pay the costs of the Town's engineers and attorneys for time spent reviewing and analyzing the application.
F.
The Planning Board may grant the special permit, deny the special permit or grant the special permit with written stated conditions. Denial of the special permit shall be by written decision based upon substantial evidence submitted to the Board.
G.
The special permit shall be assignable and shall run with the land; provided, however, that the assignee must comply with the conditions of the special permit, must assume all obligations thereunder, and must provide proof of insurance and proof of removal cost bonding to the Town Clerk.
[Amended 5-14-2013 by L.L. No. 2-2013]
H.
Revocation. If the applicant violates any of the conditions of its permit or violates any other local, state or federal laws, rules or regulations, this shall be grounds for revocation of the special permit. Revocation may occur after the applicant is notified of the violations and the Planning Board holds a hearing on same.
§ 205-43.2 (Reserved) [1]
[1]
Editor’s Note: Former § 205-43.2, Commercial wind-energy conversion systems, added 7-11-2006 by L.L. No. 1-2006, was repealed 1-29-2018 by L.L. No. 3-2018.
§ 205-43.3 (Reserved) [1]
[1]
Editor’s Note: Former § 205-43.3, Noncommercial wind-energy conversion systems, added 7-11-2006 by L.L. No. 2-2006, was repealed 1-29-2018 by L.L. No. 3-2018.
§ 205-43.4 Bioremediation.
[Added 10-10-2006 by L.L. No. 5-2006]
The purpose of this section is to allow for use of bioremediation for the treatment of petroleum-contaminated soils within the I and A Districts. It is recognized that operation of such uses without adequate regulations and conditions may pose adverse impacts upon neighboring residential uses.
A.
Definitions. As used in this section, the following terms shall have the meanings as indicated:
CONTAMINATED SOIL(S)
Any material that contains petroleum products is prohibited from being discharged into the ground or water by any local, state, or federal law, or whose discharge requires any type of permit from any governmental agency or official.
B.
Prohibitions and restrictions. The movement of contaminated soils into or within an R-1, R-2, or RLS District is prohibited. The movement of contaminated soils into or within an I or A District without an approved bioremediation plan is prohibited. The movement of contaminated soils into or within an I District with an approved bioremediation plan shall be permitted only by special use permit, upon site plan approval issued by the Planning Board herein, and issuance of a building permit, and subject to the provisions of this chapter and all other applicable regulations. The movement of contaminated soils within an A District with an approved bioremediation plan shall be permitted only by special use permit if bioremediation occurs on the originating parcel, upon site plan approval issued by the Planning Board herein, and issuance of a building permit, and subject to the provisions of this chapter and all other applicable regulations. All contaminated soils to be treated must have originated from within the Town of Somerset. No contaminated soils from property located outside of the Town of Somerset shall be used in a bioremediation process located within the Town.
C.
Applications under this section shall be made as follows:
(1)
In addition to the requirements for a site plan set forth in Article XVA, applicants for a special permit shall submit the following information to the Planning Board.
(a)
A report from a New York State Department of Environmental Conservation (DEC) licensed testing laboratory:
[1]
Specifying and explaining the testing protocol performed on the contaminated soil;
[2]
Listing the contaminants and their levels or strengths;
[3]
Providing MSDS sheets for the contaminants.
(b)
A detailed bioremediation plan specifying and explaining the:
[1]
Size, location and depth of the area that will be receiving contaminated soil ("the bioremediation cell");
[2]
The amount of soil, in cubic yards, that will be brought onto the bioremediation cell;
[3]
The location from which contaminated soil is being brought ("the originating parcel");
[4]
A grading, site drainage and landscaping plan;
[5]
The amount of time to complete the final grading of the bioremediation cell;
[6]
Time frame for final seeding and/or landscaping.
(c)
A detailed plan specifically explaining the:
[1]
Size, location and depth of the area that will be providing the contaminated soil from the originating parcel;
[2]
The amount of soil, in cubic yards, that will be brought onto the originating parcel;
[3]
The location from which replacement soil is being brought;
[4]
A grading, site drainage and landscaping plan;
[5]
The amount of time to complete the final grading;
[6]
Time frame for final seeding and/or landscaping of the originating parcel.
(2)
If SEQRA has not already been completed by the NYSDEC, the applicant shall prepare a full environmental assessment form impact statement, unless the Planning Board, in its sole discretion, decides that a full environmental assessment form is not required.
(3)
A copy of the NYSDEC permit authorizing bioremediation, if applicable.
D.
Special use permits issued for bioremediation cells shall be subject to the following general conditions as well as any other conditions which the Planning Board deems appropriate:
(1)
Separation distance. For other than the property containing the cell, the boundaries of any bioremediation cell shall be separated from all residential dwellings, places of public assembly, and sources of drinking water by a distance of 1,000 feet.
(2)
Final appearance. All bioremediation cells and originating parcels shall be graded, seeded and otherwise landscaped so that the result is consistent with the appearance of the property prior to any remediation work. If a liner is used in the bioremediation process, it shall be perforated and excess sheeting removed prior to final grading and seeding.
(3)
Safety. During the course of any bioremediation work, the applicant shall be required to keep any and all public roads traversed by trucks or other equipment associated with the bioremediation project clean and free from dust, mud, gravel or other debris associated with the project.
(4)
Storage. During the course of any bioremediation work, the applicant shall not store any materials or equipment on any Town road right-of-way without permission from the Town Highway Superintendent.
(5)
Damage to roads or bridges. During the course of any bioremediation work, the applicant shall ensure that any trucks or other equipment associated with the bioremediation project comply with the weight postings for all roads and bridges within the Town.
(6)
Contents prohibited. No contaminated material may include concrete, blacktop, asphalt macadam, wood, metal, or any material that is foreign to natural soil, other than the chemical contaminants.
(7)
Other permits. Any conditions imposed in any other permits issued by any other governmental agency shall, in the discretion of the Planning Board, be incorporated into the special use permit.
(8)
Security. Prior to approval of any special use permit, the Planning Board, in its sole discretion, may require the applicant and/or owner to post and file with the Town Clerk a maintenance and/or performance bond or other form of security acceptable to the Town Attorney, in an amount sufficient to cover the cleanup and/or remediation of said bioremediation cell(s) during its lifetime and provide for its removal. The amount required shall be determined in the sole discretion of the Planning Board, based upon the unique characteristics of the bioremediation cell(s) and site. In furtherance of the foregoing, the applicant and/or owner shall cooperate with the Planning Board in supplying all necessary construction, sampling, maintenance and reclamation data to the authorizing board prior to approval of any application to accomplish the foregoing.
(9)
Reports. Any time within three years after final grading, the applicant shall supply either: a report from the DEC certifying that bioremediation is complete and the soil at both the bioremediation cell and the originating parcel comply with all then-existing DEC requirements; or a report from a DEC-approved soil testing laboratory certifying that the soil at both the bioremediation cell and the originating parcel comply with all then-existing DEC requirements.
(10)
Any conditions necessary to mitigate the long- or short-term effects on the originating parcel, the bioremediation cell, and any property adjacent to either parcels.
(11)
Failure to complete. After three years, if the soil on the originating parcel or the bioremediation cell is contaminated according to then-current DEC specifications, the soil shall be removed to a landfill licensed to accept the contaminated soil outside the Town of Somerset within six months.
(12)
Nontransferable. Any special use permit issued pursuant to this section is issued to the applicant and not transferable or assignable without permission of the Planning Board.
(13)
Revocation. Any violation of the conditions of the special use permit or any violation of any other local, state or federal laws, rules or regulations by the applicant shall be grounds for revocation of the special use permit. Revocation will occur after the applicant is notified of the violations and the Planning Board has held a hearing on the same.
E.
Fees. Fees for special use permits issued under this section shall be set by resolution of the Town Board.
F.
All applications made after effective date for a special use permit shall be subject to all requirements of this chapter. Any existing bioremediations projects regulated by DEC shall be subject to Subsection D(2), (8), (9), (10) and (11).
§ 205-43.5 Commercial/industrial wind energy conversion systems.
[Added 2-24-2016 by L.L. No. 3-2016]
A.
Purposes. The Town Board of the Town of Somerset adopts this section to regulate the placement of commercial and industrial wind energy conversion systems to protect the public safety, health and welfare; to provide a regulatory structure that promotes the protection of the Town of Somerset residents; to minimize the adverse impacts on the Town's character and environment and economy and property values; to minimize negative impacts on the unique resources, including, but not limited to, the Seaway Trail, the Lake Ontario shoreline corridor and adjacent lands and waterways, and the residential and farming communities of the Town.
B.
Authority. The Town Board of the Town of Somerset enacts this section under the authority granted by:
(1)
Article IX of the New York State Constitution, § 2(c)(6) and (10).
(2)
New York Statute of Local Governments, § 10, Subdivisions 1, 6 and 7.
(3)
New York Municipal Home Rule Law, § 10, Subdivision 1(i) and (ii), and § 10, Subdivision 1(ii)a(6), (11), (12) and (14).
(4)
The supersession authority of New York Municipal Home Rule Law, § 10, Subdivision 1(ii)d(3), specifically as it relates to determining which body shall have power to grant variances under this section, and what variances may be granted to the extent such grant of power is different than under Town Law § 267 and § 274-b, and as it relates to the power of the Town Board to regulate land use within the Town to the extent the provisions of this section differ from the authority granted to the Town by Article 16 of the Town Law.
(5)
New York Town Law, Article 16 (Zoning).
(6)
New York Town Law § 130, Subdivision 1 (Building code), Subdivision 3 (Electrical code), Subdivision 5 (Fire prevention), Subdivision 7 (Use of streets and highways), Subdivision 7-a (Location of driveways), Subdivision 11 (Peace, good order and safety), Subdivision 15 (Promotion of public welfare), Subdivision 15-a (Excavated lands), Subdivision 16 (Unsafe buildings), Subdivision 19 (Trespass), and Subdivision 25 (Building lines).
(7)
New York Town Law § 64, Subdivision 17-a (protection of aesthetic interests), and Subdivision 23 (General powers).
(8)
New York Real Property Tax Law § 487.
(9)
Police powers of the Town of Somerset; and the laws of the State of New York.
C.
Findings. The Town Board of the Town of Somerset makes the following findings:
(1)
Shortsighted planning has often resulted in creation of problem industries which adversely affect public health and quality of life; examples are found in Somerset, as well as many other areas of New York State, where abandoned buildings and brownfields exist, health has been adversely affected, pollution has been proliferated, quality of life has been diminished, aesthetics have been compromised and community character has been degraded. Commercial wind energy facilities are not exempt from these problems, and careful siting and protections are of paramount importance. Local communities have, through zoning, site plan approval, regulation and careful planning, been primary protectors of their citizenry. This section will contribute to this effort. The existence of Article 10 of the Public Service Law does not negate this responsibility, and in fact recognizes it. Further, Article 10 remains untested by judicial review addressing several potential legal issues. This section is not unduly burdensome to the mandates or the process set forth in Article 10 but is rather compatible with them.
(2)
The findings set forth in this section are cumulative and interactive and shall be liberally interpreted in conjunction, one with another.
(3)
Commercial/industrial wind energy facilities have increased significantly in number and can potentially be sited without sufficient regard to their impact on the health, welfare and safety of residents, especially in small rural communities.
(4)
Commercial/industrial wind energy facilities should benefit the residents of the local areas where they are sited.
(5)
Commercial/industrial wind energy facilities are, by their very nature, not aesthetically pleasing due to their height and disruption of views and skylines, especially in rural, flat-landed communities without many high structures.
(6)
The Town of Somerset is a rural community devoid of large hills and consists of mostly flat terrain.
(7)
The Town of Somerset is an agricultural community supporting varied agricultural uses and is in the heart of Western New York's fruit growing region.
(8)
The Town of Somerset has very few tall structures.
(9)
The Town of Somerset is bordered on the north by Lake Ontario and on the east, south and west by towns which share Somerset's agricultural and rural residential character and are similarly low, flat areas.
(10)
The only other municipality in the Town of Somerset is the Village of Barker, which is a small village bedroom community, and which is also part of the rural, residential community devoid of high structures.
(11)
Commercial/industrial wind energy facilities represent potential for extreme adverse aesthetic impacts due to their height as well as other effects.
(12)
The Town of Somerset is located on a major migration route for many species of birds and is a habitat for many species, both year-round and seasonal.
(13)
The bat population in the Town of Somerset is important and in distress.
(14)
Commercial/industrial wind energy facilities are known to pose danger to birds and bats and have been demonstrated to kill numerous members of both species annually.
(15)
Commercial/industrial wind energy facilities can cause danger to humans and animals, including livestock, resulting from ice throw.
(16)
If not properly regulated, installation of commercial/industrial wind energy facilities can create drainage problems through erosion and lack of sediment control for facility and access road sites and can harm farmland through improper construction methods.
(17)
Commercial/industrial wind energy facilities, when improperly sited, are known to adversely affect property values and cause economic hardship to property owners.
(18)
The Town of Somerset contains clusters and stretches of homes, including along the Lake Ontario shoreline, in and around the Village of Barker and West Somerset, along Route 18 and Lake Road, as well as disbursed residences which residents have chosen as their homes, often because of a love for rural-pastoral lifestyle.
(19)
Town of Somerset residents and visitors enjoy outdoor activities, including marine (boating, fishing, sailing, swimming, kayaking, etc.) and land (hunting, hiking, cycling, snowmobiling, jogging, etc.), all of which are potentially adversely affected by the presence of commercial/industrial wind energy facilities.
(20)
Commercial/industrial wind energy facilities may be significant sources of noise, including infrasound, that, if unregulated, can negatively affect quiet enjoyment of the area, properties, and the health and quality of life of residents.
(21)
Construction of wind facilities can create traffic problems and can cause damage to local roads and infrastructure.
(22)
Commercial/industrial wind energy facilities have the potential to cause electromagnetic interference with various types of communications.
(23)
Commercial/industrial wind energy facilities have the potential to adversely interfere with orderly development of the Town of Somerset, including single-family residences and small subdivisions, by making such development unappealing.
(24)
Commercial/industrial wind energy facilities need to be regulated for removal when no longer utilized.
(25)
Commercial/industrial wind energy facilities provide renewable energy. Their viability is highly dependent on state and federal subsidies, and renewable energy companies are subject to economic pressure and potential bankruptcies. Funding and mechanisms for removal when the facilities are no longer operating need to be in place.
(26)
The Town of Somerset has regulated wind energy facilities for the past decade through local laws. This section represents an updating of said regulation.
(27)
In formulation of this section, many studies have been reviewed and taken into consideration. Wind energy laws in other locations have been reviewed and considered; experiences of other areas have been studied; the Town of Somerset Local Waterfront Revitalization Program and Law have been considered and reviewed for compliance; the Town of Somerset Comprehensive Plan has been considered and complied with; and an ad hoc committee was appointed to review the need for this section and to make recommendations; and its conclusions and recommendations have been duly considered and given great weight.
(28)
When considering large-scale construction and maintenance, due weight should be given to the following:
(a)
The relative distress caused to a community and its residents;
(b)
The actual necessity for such facility given energy production in the area and region, including clean energy production;
(c)
Past and present stresses and disruption imposed upon an area due to all types of energy production;
(d)
Alternatives to facilities, including location in other areas, location in areas where demand is needed, and alternative methods of producing clean energy;
(e)
Location in areas of highest consumption; and
(f)
The burden on a community and its residents versus reward to the community and its residents, with emphasis upon quality of life.
D.
Definitions. As used in this section, the following definitions apply. If any definition herein conflicts with a definition found elsewhere in the Town Code, the definitions set forth here apply. If not defined in this section, the definitions as set forth in § 205-8 shall apply. As used in this section, the following terms shall have the meanings indicated:
AMBIENT SOUND
Ambient sound encompasses all sound present in a given environment, being usually a composite of sounds from many sources near and far. It includes intermittent noise events, such as from aircraft flying over, dogs barking, wind gusts, mobile farm or construction machinery, and the occasional vehicle traveling along a nearby road. The ambient sound also includes insect and other nearby sounds from birds and animals or people. The nearby and transient events are part of the ambient sound environment but are not to be considered part of the long-term background sound.
ANSI
Refers to or means the American National Standards Institute.
APPLICANT
The person or entity filing an application and seeking license under this section; the owner of a WECS or a proposed project; the operator of a WECS or proposed project; or any person acting on behalf of an applicant, WECS project or proposed WECS. Whenever the term "applicant" or "owner" or "operator" is used in this section, said term shall include any person acting as an applicant, owner or operator.
BACKGROUND SOUND
Background sounds are those heard during lulls in the ambient sound environment and represent the quietest 10% of the time, for example, the quietest one minute.
dBA
A-weighted sound-pressure level. A measure of overall sound-pressure level designed to reflect the response of the human ear, which does not respond equally to all frequencies. It is used to describe sound in a manner representative of the human ear's response. It reduces the effects of the low frequencies with respect to the frequencies centered around 1,000 Hz. The resultant sound level is said to be "weighted," and the units are "dBA." Sound-level meters have an A-weighting network for measuring A-weighted sound levels (dBA) meeting the characteristics and weighting specified in ANSI Specifications for Integrating Averaging Sound Level Meters, 51.43-1997, for Type 1 instruments and are capable of accurate readings (corrections for internal noise and microphone response permitted) at 20 dBA or lower. In this section, dBA means LAeq unless specified otherwise.
dBC
C-weighted sound-pressure level, similar in concept to the A-weighted sound Level (dBA), but C-weighting does not deemphasize the frequencies below 1kHz as A-weighting does. It is used for measurements that must include the contribution of low frequencies in a single number representing the entire frequency spectrum. Sound level meters have a C-weighting network for measuring C-weighted sound levels (dBC) meeting the characteristics and weighting specified in ANSI SI. 43-1997, Specifications for Integrating Averaging Sound Level Meters for Type 1 instruments. In this section, dBC means L unless specified otherwise.
DECIBEL
A dimensionless unit describing the amplitude of sound and denoting the ratio between two quantities that are proportional to power, energy, or intensity. One of these quantities is equal to 20 times the logarithm to the base 10 of the ratio of the measured pressure to the reference pressure, which is 20 micropascals.
EAF
The environmental assessment form used in the implementation of SEQRA as that term is defined in 6 NYCRR 617.
LWRP
The Local Waterfront Revitalization Program or Plan of the Town of Somerset, together with the Town of Somerset Waterfront Consistency Law.
NONPARTICIPANT
Any and all Somerset landowners having no contractual relationship with a wind developer.
PARTICIPANT
Any and all landowners having a signed lease, easement, or good neighbor agreement with a wind developer.
PERSON
Any person, partnership, LLC, corporation, joint venture, trust or other entity.
QUALIFIED ACOUSTICAL CONSULTANT
A person with demonstrated competence in the specialty of community noise testing who is a person with full membership in the Institute of Noise Control Engineers (INCE).
RESIDENCE
Any building suitable for habitation in the Town of Somerset on the date an application for a wind energy facility permit is received. A residence may be part of a multidwelling or multipurpose building, and shall include buildings such as hunting camps, seasonal residences, hotels, hospitals, motels, dormitories, nursing homes, schools, churches or buildings used for educational purposes or public gatherings.
ROTOR DIAMETER
The diameter of the largest swept area of a rotating turbine blade.
SECTION or THIS SECTION
Shall mean, unless otherwise identified, § 205-43.5.
SEQRA
The New York State Environmental Quality Review Act and its implementing regulations in 6 NYCRR 617.
SETBACKS
A distance measured from the closest rights-of-way line of the road rights-of-way, property lines, village limits, edge of wetlands, high-water level of Lake Ontario, edge of streambed, closest point of residence foundation to the base of the turbine or measurement tower, zoning districts, LWRP boundaries, or other point or line of reference.
SHADOW FLICKER
The visual effect of viewing the moving shadow of the wind energy conversion system (WECS) rotor blades when they are in a position between the receptor (person viewing them) and the sun and/or the "strobe" lighting effect of this condition as perceived by the receptor, whether directly or indirectly (as in a reflection off a light-colored wall).
SITE
The minimum area necessary for a wind energy facility to satisfy the required setbacks and any other standards in this section. The site may be publicly or privately owned by an individual or a group of individuals controlling single or adjacent properties. Where an individual or group of individuals owns or control adjacent properties, those properties may be combined for the purposes of this section through an easement or other legally enforceable agreement recorded in the real property records in the Niagara County Clerk's office. The agreement must, at a minimum, describe all lands that may be impacted if the WECS fell and must remain in effect as long as the WECS is in place. Where multiple adjacent lots are in single ownership or are combined through such agreement, such multiple or combined lots shall together be considered the "site."
SOUND-PRESSURE LEVEL
The level, expressed in decibels, which is equaled or exceeded a stated percentage of time. Sound-pressure level is spectrally weighted to correspond to a spectrum of interest. For example, the A-weighted decibel scale (dBA) represents those frequencies most readily audible to the human ear. The C-weighted decibel scale (dBC) approximates response of the human ear to low-frequency sounds. The G-weighted decibel scale (dBG) is designed for infrasound. Sound measurements shall use sound meters that meet the American National Standards Institute Specifications for Integrating Averaging Sound Level Meters, S1.43-1997, for Type I instruments and be capable of accurate readings (corrections for interval noise and microphone response permitted) at 20 dBA or lower.
SPECIAL USE PERMIT
A construction and operating permit granted in accordance with the provisions of this section.
TOTAL HEIGHT
The height of the tower from the finished ground elevation to the furthest vertical extension of the turbine rotor plane.
TOWER HEIGHT
The height of the tower from the finished ground elevation at the tower base to the center of the hub forming the attachment point for turbine blades.
WIND ENERGY CONVERSION SYSTEM ("WECS") or WIND ENERGY CONVERSION FACILITY
Any machine or wind facility that converts the kinetic energy in the wind into electricity, including all related infrastructure, electrical lines and substations, access roads and accessory structures; also known as a commercial/industrial wind energy conversion system. Excluded from the definition are noncommercial wind energy conversion systems regulated by § 205-43.3 and having a height of 150 feet or less.
E.
Applicability/severability. No wind facility or wind energy conversion system shall be constructed, reconstructed, modified or operated in the Town of Somerset except in compliance with this section and in compliance with all conditions of approval established by the Town Board.
[Amended 1-29-2018 by L.L. No. 3-2018]
(1)
This section shall not supersede §§ 205-11BB, 205-40A(8), or 205-55B(8)(g) of the Somerset Town Code. If any provision of this section conflicts with any provision of the Town of Somerset Town Code other than §§ 205-11BB, 205-40A(8), or 205-55B(8)(g), provisions of this section shall apply.
(2)
If any provision, section, or requirement of this section shall be finally determined not to apply or to be unenforceable by any court or government agency or body, then all other applicable provisions of the Somerset Town Code shall apply, including but not limited to §§ 205-11BB, 205-40A(8), and 205-55B(8)(g), and any tall structures zoning law the Town may adopt.
(3)
If any provision, section or requirement of this section shall be finally determined not to apply, or to be unenforceable or void, by any court, state or federal agency having authority to so determine, it shall not affect the validity or enforceability of this section as a whole or any other part thereof.
(4)
Nothing in this section shall prevent the ability of the Town of Somerset to appeal or seek court determination of any action by any agency, tribunal, or lower court.
F.
Applications for wind energy conversion systems.
(1)
An application for a special use permit for a wind energy facility or a single WECS shall include the following:
(a)
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.
(b)
Name and address of the property owner. If the property owner is not the applicant, the application shall include proof of site control by recorded document establishing that the applicant is authorized to utilize the property for the intended purpose.
(c)
Address, or other property identification, of each proposed WECS location, including Tax Map section, block and lot number, and latitude and longitude coordinates.
(d)
A description of the project, including the number and maximum rated power output capacity of each WECS.
(e)
For each WECS proposed, a plot plan prepared by a licensed surveyor or engineer drawn in sufficient detail to clearly describe the following:
[1]
Property lines and physical dimensions of the site;
[2]
Location, approximate dimensions and types of existing structures and uses on site, public roads, and adjoining properties within a three-thousand-foot radius of the proposed WECS.
[3]
Location and ground elevation of each proposed WECS.
[4]
Location of all above- and below-ground utility lines on the site, and all related transformers, power lines, interconnection points with transmission lines, and other ancillary facilities or structures.
[5]
Location and size of structures above 35 feet within a three-thousand-foot-radius of any proposed WECS. For purposes of this requirement, electrical transmission and distribution lines, antennas and slender or open-lattice towers are considered structures.
[6]
Location of, and measured distances (accurate GPS measurements may be utilized) of, each proposed WECS tower from every setback required pursuant to this section.
[7]
To help demonstrate compliance with the setback requirements of this section, circles drawn around each proposed tower site having a radius equal to:
[a]
Five times the total height of the proposed WECS;
[b]
One thousand feet;
[c]
Three thousand feet;
[d]
One-half mile;
[e]
One mile;
[f]
One and one-half times the total height of the proposed WECS;
[g]
Two times the total height of the proposed WECS; and
[h]
Five thousand feet.
[8]
All proposed facilities, including access roads, electrical lines, substations, storage or maintenance units, and fencing.
[9]
The names and addresses of all property owners within a three-thousand-foot-radius of each WECS, as shown on the assessment roll of the Town of Somerset, together with the current use of all such property.
(f)
Elevation drawing of the WECS showing total height, turbine dimensions, tower and turbine colors, ladders, distance between the ground and the lowest point of any blade, location of climbing pegs, and access doors. One drawing may be submitted for each WECS of the same type and total height.
(g)
Landscaping plan: depicting vegetation and forest cover, describing the area to be cleared of vegetation and forest cover and areas where vegetation and forest cover shall be added, identified by species and size of specimens at installation, and their locations.
(h)
Lighting plan: showing any FAA-required lighting and other proposed lighting. The application should include a copy of the determination by the Federal Aviation Administration to establish required markings and/or lights for the structure; but if such determination is not available at the time of the application, the application shall so state, and such determination shall be submitted prior to final approval.
(i)
Decommissioning plan: a decommissioning plan as specified in this section.
(j)
Complaint resolution plan: a complaint resolution plan to address complaints within 24 hours of receipt of notice thereof and to resolve any complaint in a diligent and timely manner under the circumstances.
(k)
Information relating to the construction/installation of the wind energy facility as follows:
[1]
A proposed construction schedule describing commencement and completion dates of the project and beginning and ending hours of daily construction.
[2]
A description of the routes to be used by construction and delivery vehicles and the gross weights and heights of those loaded vehicles.
(l)
Completed Part 1 of the full EAF.
(m)
For each proposed WECS: include make, model, picture, and manufacturer's specifications, including noise decibel data. Include manufacturers' material safety data sheet documentation for the type and quantity of all materials used in the operation of all equipment, including, but not limited to, all lubricants and coolants.
(n)
As part of the application, or as a supplement to the application and simultaneously submitted, the following: Each submittal shall contain a thorough analysis/explanation of the ability and means to comply with the "Standards for commercial/industrial WECS," Subsection H of this section.
[1]
Shadow flicker: The applicant shall submit a study on potential shadow flicker. The study shall identify locations where shadow flicker may be caused by the WECS and the expected durations of the flicker at these locations. The study shall identify areas where shadow flicker may be present at locations of any residences, highways, parks or open recreation areas and detail measures that will be taken to mitigate or eliminate such interference and to comply with the requirements of this section.
[2]
Visual impact: Applications shall include a visual impact study of the proposed WECS as installed, which shall include a computerized photographic simulation, demonstrating any visual impacts from strategic vantage points. Color photographs of the proposed site from at least several locations accurately depicting the existing conditions shall be included. The visual analysis shall also indicate the color treatment of the system's components and any visual screening incorporated into the project that is intended to lessen the system's visual prominence.
[3]
Fire protection/emergency response plan: a fire protection and emergency response plan, created in consultation with the fire department(s) having jurisdiction over the proposed wind energy facility, to address coordination with local emergency/fire protection providers during the construction or operation phase in the event of an emergency, fire or other hazard.
[4]
Noise analysis/study: a noise analysis by a qualified acoustical consultant documenting the noise levels associated with each proposed WECS. The study shall document noise levels at property lines and at the property line of the nearest residences not on the site for each residence in a three-hundred-sixty-degree circle of the site. The noise analysis shall be performed according to the International Standard for Acoustic Noise Measurement Techniques for Wind Generators (IEC 61400-11), or other procedure accepted by the Town Board, and shall include both a dBA analysis and dBC analysis. The noise analysis/study shall demonstrate compliance with the noise provisions as set forth in the "Standards for commercial/industrial WECS," Subsection H of this section.
[5]
Property value analysis: property value analysis, prepared by a New York State licensed appraiser experienced in appraising rural properties of the type and nature typically found in the Town of Somerset, evaluating the potential impact of the project on values of properties in the Town of Somerset, and in addition a proposed means to protect property owners from decrease in values caused by the establishment and operation of the proposed WECS, and to comply with the property value preservation subsection set forth in the "Standards for commercial/industrial WECS," Subsection H of this section.
[6]
Electromagnetic interference: an assessment of potential electromagnetic interference with microwave, radio, television, satellite systems, personal communication systems and other wireless communication, including broadband, weather and other radar, identifying specific potential interference to established systems.
[7]
Transportation impacts: an analysis of impacts on local transportation, identifying impacts anticipated during construction, reconstruction, modification, or operation of each WECS. Transportation impacts to be considered shall include, at a minimum: potential damage to local road surfaces, road beds and associated structures; potential traffic tie-ups by haulers of WECS' materials; impacts on school bus routes; and impacts of visitors to the WECS' facilities. Local roads shall include all state highways, county highways, Town highways, and village streets and highways, which will be or may be used by the applicant.
[8]
Transportation plan: a transportation plan describing routes to be used in delivery of project components, equipment and building materials, and those to be used to provide access to the site during and after construction. Such plan shall also describe any anticipated improvements to existing roads, bridges or other infrastructure, and measures to restore damaged/disturbed access routes and all other infrastructure following construction. Roads shall include all state highways, county highways, Town highways, and village streets and highways, which will be or may be used by the applicant.
[9]
Groundwater impacts: an analysis of impacts on local groundwater resources shall be prepared regarding impacts anticipated during construction, reconstruction, modification, or operation, decommissioning and post-decommissioning of each WECS. A geotechnical report shall be provided and shall include: soil and geologic characteristics of the site based on site sampling and testing; a bedrock profile within 1 mile of the site; information on depth of well; average flow rate; and with permission by owner, test of water quality for all wells within two miles of the site; grading criteria for ground preparation, cuts and fills, soil compaction, and a slope stability analysis.
[10]
An assessment of potential immediate and long-term impacts to local flora and fauna, micro and macro habitats, and ground- and surface water related, but not limited to, excavation, blasting, clear-cutting and grading during the site preparation phase.
[11]
Cultural, historical and archaeological resources plan: an analysis of impacts on cultural, historical and archaeological resources addressing and assessing impacts anticipated during construction, reconstruction, modification or operation of each WECS. This assessment shall be conducted in accordance with standards of the New York State Office of Parks, Recreation and Historic Preservation.
[12]
Wildlife impacts: An analysis of impacts on local wildlife shall be prepared, addressing impacts anticipated during construction, reconstruction, modification, or operation of each WECS. Wildlife impacts to be considered shall include, at a minimum, anticipated impacts on flying creatures (birds, bats, insects), as well as wild creatures existing at ground level. An assessment of the impact of the proposed development on the local flora and fauna shall also be prepared. The analysis will include migratory and resident avian species and bat species. The scope of such assessment shall take into consideration New York State Department of Environmental Conservation and United States Fish and Wildlife Service studies, standards and recommendations and must, at a minimum, consist of preconstruction data of three years, and literature/studies/survey for threatened and endangered species and species of concern, and migratory species that provide relevant information on critical flyways and migration routes, and shall describe the potential impacts of any proposed facilities on bird and bat species, and an avoidance or mitigation plan to address any impacts, as well as plans for three-year post-installation studies. The reports shall provide sufficient information to allow the Town Board to make a determination on any mitigation conditions or a denial of permits as provided in the standards for commercial/industrial WECS section.
[13]
Operation and maintenance plan: an operation and maintenance plan providing for regular periodic wind energy facility schedules, any special maintenance requirements and procedures and notification requirements for restarts during icing events.
[14]
Blade throw report: a report from a New York State professional engineer that calculates the maximum distance that ice from the turbine blades and pieces of turbine blade may be thrown. (The basis of the calculation and all assumptions must be thoroughly explained and justified.) The frequency incidence of reported ice and blade throws and the conditions at the time of the ice and blade throw must be included, and the report must specifically address the climatic and weather conditions found in the Town of Somerset.
[15]
Stray voltage report: an assessment, pre- and post-installation, of possible stray voltage problems on the site and neighboring properties within one mile of the project boundary to show what properties need upgraded wiring and grounding.
[16]
A health report utilizing available background health, including mental health, analysis for the Town and the region, including age, proliferation of known health disorders, and effects of noise presence of WECS and flicker effect on people, as well as a proposed means of accessing a health background on individuals who wish to participate for determination of health effects if a WECS is constructed; a thorough analysis of the potential health effects, including mental health, related to commercial/industrial wind turbines, and a plan to mitigate each of the effects and to address them.
[17]
An agriculture effect report, including impacts on all types of agricultural activities present in the Town of Somerset. The report shall address the effects of wind turbulence and disruption on fruit production, effects on beef and dairy farms, grain farming and all other farming activities. The report must address insect and bee population effects, effects on orchard and crop pollination, micro-climate effects and impacts on orchard and crop growing seasons.
[18]
A report/analysis of the effects on the economy of the Town, including income of residents and effects on other industries and jobs.
[19]
A report and analysis on any effect on any military installation in the County of Niagara, including the Niagara Falls Air Reserve Station, its potential effects on flight patterns, its potential to cause radar interference, effect on base siting evaluations, and the potential economic effect on the County of Niagara should the base be closed, including job loss and economic impact.
[20]
A report and analysis on any outdoor activities common in the Town of Somerset, including hunting, hiking, biking, etc.
[21]
A complete report on:
[a]
The need for the project, including demand analysis and limitations on transport of power to high-demand areas.
[b]
Other "clean" energy power projects in the area, including the Niagara Power Project, with analysis of total clean power generated in Niagara County versus other areas in the state.
[c]
The effect on the Great Lakes Seaway Trail, a national scenic byway.
[d]
Increased expenses imposed upon the Town of Somerset as a result of the proposed project.
[e]
All alternative sites identified by the applicant and its affected entities.
[f]
Local power needs in the Town of Somerset and total power generated.
[g]
Total disruption/burden placed upon the Town of Somerset for all power-generation activities, including existing facilities and infrastructure. Compare to other areas of the state; use population/energy usage per capita versus total energy burden.
(o)
For any requirement of a report, analysis or study, required pursuant to this Subsection F or required by any other provision of this section, or by the Town Board in its review process, the Town may require an expanded or supplemental report or study by the applicant, or an independent study, analysis or report by a consultant of the Board's choosing. The applicant shall be responsible for the cost of any review/report study or analysis commissioned by the applicant, to be paid for from the escrow fund established pursuant to this section.
(p)
The applicant shall, prior to the receipt of a special use permit, provide proof that it has executed an interconnection agreement with the New York independent system operator and the applicable transmission owner. The applicant shall also provide proof of complying with Public Service Commission power purchase requirements.
(q)
A statement, signed under the penalty of perjury, that the information contained in the application is true and accurate to the best of the applicant's knowledge.
(r)
Proof of continuous liability insurance in the amount of $5,000,000 per occurrence with a total policy minimum of $10,000,000 per year. This shall be submitted to the Town of Somerset indicating coverage for potential damages or injury to landowners and the public.
(s)
Disclosure of financial interests. For any financial interest held by a municipal officer, or his or her relative, in any wind development company or its assets, within three years prior to the date of an application for a permit under this section, the wind company shall disclose on the application the municipal officer or his or her relative and the nature and scope of the financial interest of each person.
(t)
All wind speed data obtained by the applicant from any wind measurement tower in the Town, including an explanation of the methodology utilized to obtain measurements.
(u)
The applicant shall fund an escrow as required by this section to cover the amount by which the Town's cost to review the applicant's application, including the cost of any independent study, analysis or report and the cost of the Town Engineer, exceeds the application fees paid by the applicant. The applicant and the Town may enter into an agreement as to the amount of the escrow. If no agreement is reached prior to review, the fund shall be 1.5% of the total estimated cost of the project, including both "hard" and "soft" costs, approvals, etc. The amounts paid to the Town shall not exceed this amount. This amount is determined to be the best estimate of all costs to the Town for its review process as set forth in this section. The escrow shall be funded prior to review of the application. If, at the end of the review process and decision on the application by the Town Board, funds remain in the escrow fund, the balance shall be returned to the applicant together with an accounting of the expenditures incurred by the Town.
(v)
Copies of all applications and proposed plans should be made available to the public within seven days of receipt by the Town Board and placed in the Town Library and Town Clerk's office as well as on the Town of Somerset website.
G.
Application review process.
(1)
Applicants may request a preapplication meeting with the Town Supervisor, Town Code/Zoning Enforcement Officer and such consultants as the Supervisor shall determine. Such meeting shall be informal, and no party shall be bound by any statements made.
(2)
An original executed and 15 copies of the application and a complete digital version shall be submitted to the Town Clerk. Payment of all application fees shall be made at the time of application submission. The Town Clerk shall forward one copy to the Code/Zoning Enforcement Officer, five copies to the Town Supervisor, and additional copies to such individuals as the Supervisor shall direct.
(3)
The Code/Zoning Enforcement Officer, in consultation with the Town Engineer and any other consultants deemed necessary, shall determine whether the application is complete. If the application is deemed incomplete, the Town Code/Zoning Enforcement Officer shall provide the applicant with a written statement listing the missing information. No refund of application fees shall be made, but no additional fees shall be required upon submittal of the additional information, unless the number of WECS proposed is increased. When the application is complete, it shall be filed, and the applicant shall be notified it has been accepted for filing.
(4)
Upon filing of a complete application, the Town Clerk shall transmit the application to the Board.
(5)
In addition to the public hearing requirement, the Town Board may, in its discretion, require the applicant to conduct information sessions for the public benefit. The number of such sessions shall be at the discretion of the Town Board, and notice shall be given to media in such a manner as the Town Board shall determine. During these sessions, the public will be afforded the opportunity to question the applicant regarding the project.
(6)
The Town Board shall hold at least one formal public hearing on the application. Notice shall be published in the Town's official newspaper no less than 10 days before the hearing. In the event any hearing is adjourned by the Board to hear additional comments, no further publication or mailing shall be required. Notice shall also be given to property owners in the Town of Somerset at the address shown on the assessment roll of the Town of Somerset, or by publishing such notice in the Town's newsletter.
(7)
At the discretion of the Town Board, the public hearing may be combined with public hearings on any environmental impact statement. Notice for SEQRA public hearings must meet the specification set out in 6 NYCRR 617.12(c).
(8)
Notice of the project shall also be given, when applicable, to: the Niagara County Planning Board, if required by General Municipal Law § 239-l and 239-m; and to adjoining towns where the project site is located within 3,000 feet of the adjoining town boundary.
(9)
SEQRA review. Applications for commercial/industrial WECS are deemed Type I projects under SEQRA. The Town Board may conduct its SEQRA review in conjunction with other agencies or communities, in which case the records of review by said agencies or communities shall be part of the record of the Town Board's proceedings. The applicant shall be responsible for the Town's legal and engineer's fees in connection with the SEQRA.
(10)
After a thorough and detailed evaluation of the application in which the Town Board completes the required "hard look" of all materials and public input, and upon receipt of the report of the recommendation of the County Planning Board (where applicable), the holding of the public hearing, and the completion of the SEQRA process, the Town Board shall approve, approve with conditions, or deny the application(s). The Board shall issue a written decision with the reasons for approval, conditions of approval or disapproval fully stated.
(11)
If approved, the Town Board will issue to the applicant a special use permit for each WECS for the purpose of construction and continued operation based on satisfaction of all conditions for said permit. This authorizes the Code Enforcement Officer/Building Inspector to issue a building permit for each WECS upon compliance with the Uniform Fire Prevention and Building Code and the other conditions of this section.
(12)
The decision of the Town Board shall be filed within five business days in the office of the Town Clerk and a copy mailed to the applicant by first-class mail.
(13)
If any approved WECS is not substantially commenced within one year of issuance of the permit, the special use permit shall expire.
H.
Standards for commercial/industrial WECS. The following restrictions on location, standards and conditions shall apply to all commercial/industrial WECS. Applications must demonstrate compliance with these standards.
(1)
Restricted areas:
(a)
No commercial/industrial wind energy systems shall be allowed in any zoning district other than Industrial.
[Amended 1-29-2018 by L.L. No. 3-2018]
(b)
No commercial/industrial wind energy systems shall be allowed within the boundary areas of the Town of Somerset LWRP.
(c)
No commercial/industrial wind energy systems shall be allowed in any area where such system or systems are likely to have a material and adverse impact on the land use plans set forth in the Somerset Power Plant Multiple Use Plan, prepared by the Erie and Niagara Counties Regional Planning Board, dated November 1979.
[Added 1-29-2018 by L.L. No. 3-2018]
(d)
No wind energy conversion systems shall be allowed within three miles of the Lake Ontario shoreline, the boundary areas of the Town of Somerset LWRP, or any planned or existing public park.
[Added 1-29-2018 by L.L. No. 3-2018]
(2)
Setbacks. No commercial/industrial wind energy systems shall be allowed within the following setbacks. If more than one setback applies, the most - restrictive setback shall prevail. To protect the public health and safety, the setbacks set forth in this section shall not be waived by any person or entity.
[Amended 1-29-2018 by L.L. No. 3-2018]
(a)
The minimum setback from any residence, structure, public road, or property line where one property owner has not entered into an agreement with any person or entity seeking to develop or operate a wind energy conversion system shall be 1/2 mile or six times the height of the turbine, whichever is higher.
(b)
Minimum setback from any villages, hamlets, schools, churches, cemeteries shall be one mile.
(c)
Minimum setback from any structure, district, building, or site eligible for listing on the National Registry of Historic Places shall be one mile.
(d)
Notwithstanding the setbacks described in § 205-43H(2)(a), the minimum setback for a residence, if greater than the setbacks described in § 205-43H(2)(a), shall be the minimum distance necessary to ensure that Lmax does not exceed 6 dB above preexisting daytime or nighttime A-weighted background noise levels. For the purposes of this subsection, "Lmax" shall mean the maximum instantaneous sound level modeled within a one-second period. Lmax for any given distance from a wind turbine shall be modeled in accordance with ISO 9613-2, using a ground attenuation factor of zero (G = 0) to compensate for the elevated height of the noise source. In addition, low-frequency sound with a frequency below 63 Hz shall be modeled in accordance with ISO 9613-2 assuming no atmospheric attenuation. The input to the ISO 9613-2 propagation model shall be the test results for loudest turbine model considered under IEC 61400-14. Model output should be used to generate a map of 6 dB Lmax isolines around each proposed noise source. If the distance from the noise source to the modeled 6 dB isoline is greater than the setbacks described in Subsection H(2)(a), the setback of 6 dB described here shall apply.
(3)
All power transmission lines from the tower to any building or other structure shall be located underground.
(4)
No television, radio or other communication antennas may be affixed or otherwise made part of any commercial/industrial WECS, except pursuant to the Town Site Plan Review and Subdivision Law. Applications may be jointly submitted for WECS under this section and telecommunications facilities under the Site Plan and Subdivision Law.
(5)
No advertising signs are allowed on any part of the wind energy facility, including fencing and support structures.
(6)
Lighting of tower. No tower shall be lit except to comply with FAA requirements. Motion-sensitive on-demand lighting is required. Minimum-security lighting for ground-level facilities shall be allowed as approved on the site plan.
(7)
All applicants shall use measures to reduce the visual impact of WECS to the extent possible. All structures in a project shall be finished in a single, nonreflective, matte-finished color. Individual WECS shall be constructed using wind turbines whose appearance, with respect to one another, is similar within and throughout the project so as to provide reasonable uniformity in overall size, geometry, and rotational speeds. No lettering, company insignia, advertising, or graphics shall be on any part of the tower, hub, or blades.
(8)
No WECS shall be installed in any location where its proximity with existing fixed broadcast, retransmission, or reception antennas for radio, television, or wireless phone or other personal communication systems will produce electromagnetic interference with signal transmission or reception. No WECS shall be installed in any location along the major axis of an existing microwave communications link where its operation is likely to produce electromagnetic interference in the link's operation. If it is determined that a WECS is causing electromagnetic interference, the operator shall take the necessary corrective action to eliminate this interference up to and including relocation or removal of the facilities, or resolution of the issue with the impacted parties. Failure to remedy electromagnetic interference is grounds for revocation of the special use permit for the specific WECS causing the interference.
(9)
All solid waste and hazardous waste and construction debris shall be removed from the site and managed in a manner consistent with all applicable rules and regulations.
(10)
WECS shall be designed to minimize the impacts of land clearing and the loss of open space areas. Land protected by conservation easements shall be avoided. The use of previously developed areas will be given priority wherever possible. All topsoil disturbed during construction, reconstruction or modification of each WECS will be stockpiled and returned to the site upon completion of the activity that disturbed the soil.
(11)
WECS shall be located in a manner that minimizes significant negative impacts on animal species in the vicinity, particularly bird and bat species, including those that may be listed by the United States Fish and Wildlife Service as threatened or endangered. When the Town Board determines that significant negative impacts have not or cannot be sufficiently mitigated by a proposed WECS, no permit may be issued.
(12)
WECS shall be located in a manner consistent with all applicable state and federal wetlands laws and regulations.
(13)
Stormwater runoff and erosion control shall be managed in a manner consistent with all applicable state and federal laws and regulations.
(14)
For all aspects of the application and operations of WECS, the New York State Department of Agriculture and Markets' guidelines for agricultural mitigation for wind power projects in effect as of the date of the application shall be adhered to, and any other agricultural effects identified shall be mitigated, both inside and outside of agricultural districts.
(15)
The maximum total height of any WECS shall not exceed 200 feet under any circumstances.
[Amended 1-29-2018 by L.L. No. 3-2018]
(16)
Construction of the WECS shall be limited to the hours of 8:00 a.m. to 5:00 p.m., Monday through Friday.
[Amended 1-29-2018 by L.L. No. 3-2018]
(17)
If it is determined that a WECS is causing stray voltage issues, the operator shall take the necessary corrective action to eliminate these problems, up to and including relocation or removal of the facilities, or resolution of the issue with the impacted parties. Failure to remedy stray voltage issues is grounds for suspension or revocation of the special use permit for the specific WECS causing the problems.
(18)
WECS shall be located in a manner that minimizes significant negative impacts on the historical and cultural aspects of the community (i.e., high concentration of historic stone houses and buildings and old-style barns). This shall be done in coordination with the New York State Office of Parks, Recreation and Historic Preservation. In addition, the review of New York Department of State Guidelines for Scenic Areas of Statewide Significance shall be respected.
(19)
Each WECS shall be equipped with both manual and automatic controls to limit the rotational speed of the rotor blade so it does not exceed the design limits of the rotor.
(20)
Fencing may be required, as determined by the Town Board.
(21)
Appropriate warning signs shall be posted. At least one sign shall be posted at the base of the tower, warning of electrical shock or high voltage. A sign shall be posted on the entry area of fence around each tower or group of towers and any building (or on the tower or building if there is no fence), containing emergency contact information, including a local telephone number with twenty-four-hour, seven-day-a-week, coverage. The Town Board may require additional signs based on safety needs.
(22)
No climbing pegs or tower ladders shall be located closer than 15 feet to the ground level at the base of the tower structure.
(23)
The minimum distance between the ground and any part of the rotor or blade system shall be 30 feet.
(24)
WECS shall be designed to prevent unauthorized external access to electrical and mechanical components and shall have access doors that are kept securely locked.
(25)
The owner and/or operator of a WECS that has received approval under this section, and for which a permit has been issued, shall file with the Town Clerk on an annual basis an operation and maintenance compliance report detailing the operation and maintenance activities over the previous year and certifying full compliance with the operation and maintenance plan. The annual report shall include a noise analysis by a qualified acoustical consultant, performed according to the International Standard for Acoustic Noise Measurement Techniques for Wind Generators (IEC 61400-11) or such other procedure as accepted by the Town Board during the permit review process, which certifies to the Town that the noise level of the WECS is in full compliance with the provisions of this section and the permit as issued.
(26)
Traffic routes.
(a)
Construction and delivery vehicles for WECS and/or associated facilities shall use traffic routes established as part of the application review process.
(b)
The applicant is responsible for remediation of damaged roads and infrastructure upon completion of the installation and/or maintenance of a WECS. The applicant shall comply with all requirements of any Town of Somerset infrastructure, preservation or protection law.
(c)
In addition to complying with any Town of Somerset infrastructure preservation or protection law, prior to placing the wind energy facility in operation, and for the life of the project, the applicant shall repair or reconstruct all state highways, county highways, Town highways and village streets and highways damaged by the applicant to the standards set forth by the Niagara County Highway Department, regardless of the condition of such highways, roads and streets prior to the commencement of construction by the applicant.
(27)
Noise standards for wind energy systems. No wind generation facility shall be measured or modeled to emit A-weighted sound levels in excess of the following during operation:
[Amended 1-29-2018 by L.L. No. 3-2018]
(a)
Facilities with a plant capacity up to and including 50 kilowatts. Operation of facilities with a plant capacity up to and including 50 kilowatts shall not result in 1) sound pressure levels that exceed 42 dBA more than 5% of the time at a distance of 100 feet from any residence or inhabitable structure or 2) audible prominent discrete-frequency tones pursuant to the latest revision of ANSI S1.13 Annex A at a distance of 100 feet from any residence or inhabitable structure.
(b)
Facilities with a plant capacity greater than 50 and up to and including 150 kilowatts. Operation of facilities with a plant capacity greater than 50 kilowatts and up to and including 150 kilowatts shall not result in sound pressure levels in excess of 42 dBA, including any penalty for tonality pursuant to Section 5.710, at a distance of 100 feet from any residence or inhabitable structure.
(c)
Facilities with a plant capacity greater than 150 kilowatts. Operation of facilities with a plant capacity greater than 150 kW shall not result in sound pressure levels in excess of 42 dBA between the hours of 7:00 a.m. and 9:00 p.m. or 35 dBA between the hours of 9:00 p.m. and 7:00 a.m., including any penalty for tonality pursuant to Section 5.710, at a distance of 100 feet from any residence or inhabitable structure.
(d)
Modeling sound levels. Modeled sound levels for a proposed facility shall not exceed the limits set forth in this section. The sound impact of any proposed wind turbine shall be modeled such that broadband sound is modeled in accordance with ISO 9613-2, assuming no ground attenuation (G = 0). In addition, low-frequency noise with a frequency lower than 63 Hz shall be modeled in accordance with ISO 9613-2 assuming no atmospheric attenuation. The input to the ISO 9613-2 propagation model shall be the test results for loudest turbine model considered under IEC 61400-14. Sound modeling shall include and report Lmax sound levels that could be generated by the project, and such report shall include a map of isolines representing Lmax sound levels at 1 dB intervals up to and including 6 dB for each proposed wind turbine.
(28)
Economic effects. WECS shall be sited and constructed so as to minimize any adverse economic effects on the Town, its residents and its economic activities, including agricultural activities, in accordance with conditions established by the Town Board.
(29)
Health effects. WECS shall not adversely affect the health, including mental health, of the residents of the Town of Somerset. All available material and studies as well as baseline health reports of willing residents must be contained in a health maintenance plan for any WECS project. Preconstruction health exams shall be provided to willing residents. Reports of residents' exams shall be sealed or maintained in the possession of residents or their physicians, unless they are made available by residents in accordance with HIPAA procedures.
(30)
No WECS shall be located in the Town of Somerset which, after all data, required reports and studies are considered, as determined by the Town Board, will cause unacceptable interference with or danger to bird or bat populations or to migration routes.
(a)
When a WECS has been constructed in the Town of Somerset, the applicant/owner/operator shall inventory all bird or bat kill and report the same to the Town on a monthly basis. The applicant/owner/operator shall also provide access to the site and surrounding area to the Town-designated representative to inventory killed birds or bats on a daily basis, if requested.
(b)
If a tower or towers in a WECS are determined to cause numbers of bird or bat kill which are determined to be excessive, after consultation with the Department of Environmental Conservation and other involved agencies, remedial action shall be required, up to and including suspension or revocation of a permit or any part thereof.
(31)
Real property value protection plan. The WECS owner(s) ("applicant") shall assure the Town of Somerset that there will be no loss in real property value within two miles of each wind turbine within their WECS. To legally support this claim, the applicant shall consent, in writing, to a real property value protection agreement ("agreement") as a condition of approval for the WECS. This agreement shall provide assurance to nonparticipating real property owners (i.e., those with no turbines on their property) near the WECS that they have some protection from WECS-related real property value losses. The applicant shall agree to guarantee the property values of all real property partially or fully within two miles of the WECS. Any real property owner(s) included in that area who believes that his/her property may have been devalued due to the WECS may elect to exercise the following option:
(a)
All appraiser costs are paid by the applicant from the escrow account. The applicant and the property owner shall each select a licensed appraiser. Each appraiser shall provide a detailed written explanation of the reduction, if any, in value to the real property ("diminution value"), caused by the proximity to the WECS. This shall be determined by calculating the difference between the current fair market value (FMV) of the real property and what the FMV would have been at the time of exercising this option, assuming no WECS was proposed or constructed.
[1]
If the higher of the diminution valuations submitted is equal to or less than 25% more than the other, the two values shall be averaged ("average diminution value" ADV.)
[2]
If the higher of the diminution valuations submitted is more than 25% higher than the other, then the two appraisers will select a third licensed appraiser, who shall present to the applicant and property owner a written appraisal report as to the diminution value for the real property. The parties agree that the resulting average of the two highest diminution valuations shall constitute the ADV.
[3]
In either case, the property owner may elect to receive payment from the applicant of the ADV. The applicant is required to make this payment within 60 days of receiving said written election from the property owner to have such payment made.
(b)
Other agreement conditions.
[1]
If a property owner wants to exercise this option, he/she must do so within 10 years of the WECS receiving final approval from the Town of Somerset.
[2]
A property owner may elect to exercise this option only once.
[3]
The applicant and the property owner may accept mutually agreeable modifications of this agreement, although the applicant is not allowed to put other conditions on a financial settlement (e.g., confidentiality). If the property owner accepts some payment for property value loss, based on an alternative method, that is considered an exercise of this option.
[4]
This agreement applies to the property owner of record as of the date of the issuance of the permit and is not transferrable to subsequent owners.
[5]
The property owner of record as of the date of the issuance of the WECS permit must reasonably maintain the property from that time, until he/she chooses to elect this option.
[6]
The property owner must permit full access to the property by the appraisers, as needed, to perform the appraisals.
[7]
The property owner must inform the appraisers of all known defects of the property as may be required by law, as well as all consequential modifications or changes to the property subsequent to the date of the WECS application.
[8]
This agreement will be guaranteed by the applicant (and all its successors and assigns) for 10 years following the WECS receiving final approval from the Town of Somerset, by providing a bond (or other surety), in an amount determined to be acceptable by the county;
[9]
Payment by the applicant not made within 60 days will accrue an interest penalty. This will be 12% annually, from the date of the written election from the property owner.
[10]
For any litigation regarding this matter, all reasonable legal fees and court costs will be paid by the applicant.
[11]
Upon application, the applicant shall provide a performance bond (or equivalent) in an amount determined by the Town of Somerset and held by the Town of Somerset. This surety account will ensure execution of all aspects of this agreement (including compensation of eligible property owners in the case of default by the applicant). Failure to maintain this surety account shall be cause for revocation or suspension of the WECS permit.
(32)
Any other standard or requirement established by the Town Board as set forth as a condition of approval of an application shall apply.
(33)
All electrical transmission lines associated with WECS shall be buried underground to the maximum extent physically possible. Where aboveground transmission lines must be installed, guy wires or similar support structures shall be prohibited.
[Added 1-29-2018 by L.L. No. 3-2018]
I.
Decommissioning.
(1)
If any WECS remains nonfunctional or inoperative for a continuous period of one year, the applicant shall, without any further action by the Town Board, remove said system at its own expense in accordance with the provisions of Subsection C of this section. This provision shall not apply if the applicant demonstrates to the Town that it has been making good-faith efforts to restore the WECS to an operable condition, but nothing in this provision shall limit the Town Board's ability to order a remedial action plan.
(2)
Nonfunction or lack of operation may be proven by reports to the Public Service Commission, NYSERDA or by lack of income generation. The applicant shall make available to the Town all reports from the purchaser of energy from individual WECS. Upon request of the Supervisor, the Supervisor may also require periodic documentation reporting the power output generated by the WECS.
(3)
Decommissioning and site restoration plan and requirements. An application for a wind energy facility permit shall include a decommissioning and site restoration plan containing the information and meeting the requirements in this section.
(a)
The plan shall provide for the removal from the project parcels, and lawful disposal or disposition of, all wind turbines and other structures, hazardous materials, electrical facilities, and all foundations to a depth of not less than 60 inches below grade. The plan shall provide for the removal of all access roads that the owner of the project parcels wants removed. The plan shall provide for the restoration of the project parcels to farmland of similar condition to that which existed before construction of the WECS.
(b)
The plan shall provide for the decommissioning of the site upon the expiration or revocation of the WECS permit, or upon the nonfunctioning of the WECS.
(c)
The plan shall include: the estimated decommissioning cost in current dollars; how said estimate was determined; the method of ensuring that funds will be available for decommissioning and restoration; and the method that will be used to keep the decommissioning costs current, adjusted annually based on a suitable index such as the "RS Means Heavy Construction Cost Data" index.
(d)
The plan shall include provisions for financial security to secure completion of decommissioning (removal of nonfunctional towers and appurtenant facilities) and site restoration. The applicant, or successors, shall continuously maintain a fund in an amount to be determined by the Town Board for the period of the life of the facility. This fund shall be no less than 125% of the estimated cost of full decommissioning and restoration in the form of a cash deposit with the Town in the amount of 25% of such fund, and the balance of such fund in the form of an irrevocable bond in form and content as approved by the Town Board. All decommissioning funding requirements shall be met prior to commencement of construction.
(e)
The plan shall include written nonrevocable authorization from the permit holder and the owners of all parcels within the project for the Town to access the parcels and implement the decommissioning and site restoration plan, in the event the permit holder fails to implement the plan. The written authorization shall be in a form approved by the Town and shall be binding on the heirs, assigns and distributees of the owner(s) and shall be recorded in the office of the Niagara County Clerk.
(f)
Use of decommissioning fund.
[1]
Any nonfunctional WECS or any WECS for which the special use permit has been revoked shall be removed from the site and the site restored in accordance with the approved decommissioning and site restoration within 180 days of the date on which the facility becomes nonfunctional or of the revocation of the special use permit, by the applicant or owner of the WECS.
[2]
If removal of the WECS is required and the applicant, permittee, or successors fail to remove the WECS and restore the site in accordance with the approved decommissioning and site restoration plan, the permittee, by accepting the permit, authorizes the Town Board to contract for such removal and restoration and to pay for the removal and restoration from the posted decommissioning and site restoration fund.
[3]
If the fund is not sufficient, the Town shall charge the permit holder for the costs over and above the amount of the fund.
J.
Limitations on approvals; easements on Town property.
(1)
Nothing in this section shall be deemed to give any applicant the right to cut down surrounding trees and vegetation on any property to reduce turbulence and increase wind flow to the wind energy facility. Nothing in this section shall be deemed a guarantee against any future construction or Town approvals of future construction that may in any way impact the wind flow to any wind energy facility.
(2)
Notwithstanding anything to the contrary contained in this section or any other local law, ordinance, rule or regulation of the Town of Somerset, building permits shall not be issued for new construction on the same parcel as a permitted WECS when the proposed construction is located within a setback required by this section. No property or lot upon which a WECS has been permitted shall be further subdivided in a manner that would result in a reduction of the setbacks required by this section and/or as set forth in the permit.
K.
Permit enforcement revocation.
(1)
Testing fund. A special use permit shall contain a requirement that the applicant perform periodic noise testing by a qualified acoustical measurement consultant, which shall be included in the annual operation maintenance and compliance report required under this section, and may be required more frequently upon request of the Code Enforcement Officer in response to complaints or reasonable suspicion of violation of permit requirements. The scope of the noise testing shall be to demonstrate compliance with the terms and conditions of the special use permit and this section and shall include an evaluation of any complaints received by the Town. The Town may, if the Code/Zoning Enforcement Officer so determines, conduct or have conducted such testing as it determines, in addition to the applicant/operator. Such testing shall be paid for by the applicant.
(2)
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 and requirements of this section. Should a WECS become inoperable, or should any part of the WECS be damaged, or should a WECS violate a permit condition or any provision of this section, the owner or operator shall immediately notify the Code Enforcement Officer. Upon such notice, or if the Code Enforcement Officer determines that a violation exists, he shall determine the severity of the noncompliance. If he determines the violation to be a threat to the life, safety, health or immediate well-being of the public, he may order the WECS to be shut down. Upon notification of a violation, the applicant/owner/operator shall submit a remediation plan, in writing, within 10 days outlining the steps to be taken to remedy the violation. If no plan is submitted, or if remediation is not completed within 90 days of notice, or at any other time the Code Enforcement Officer deems appropriate, the Code Enforcement Officer shall notify the Town Board.
(3)
Notwithstanding any other enforcement provision under this section, if the WECS is not repaired or made operational or brought into permit compliance after said notice, the Town 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 time frame; or order suspension of the permit until compliance is achieved; or order revocation of the wind energy permit for the WECS and require the removal of the WECS within 90 days. If the WECS is not removed, the Town shall have the right to use the security posted as part of the decommission plan to remove the WECS.
L.
Fees.
(1)
Nonrefundable application fees for WECS, wind measurement towers, and small WECS shall be established by the Town Board and reviewed periodically. The fee may be changed by resolution of the Town Board. Until established, the fee shall be $1,000 per megawatt of rated maximum capacity, submitted with the application.
(2)
Reimbursement of expenses related to WECS project. The Town Board of the Town of Somerset has determined that the review of building and electrical permits for WECS requires specific expertise for those facilities. Accordingly, for such facilities (WECS), an administrative fee of $500 per permit request shall be charged for administrative costs, plus the amount charged to the Town by the outside consultant(s) hired by the Town to review the plans and inspect the work. The Town and the applicant will enter into an agreement for an inspection and/or certification procedure for these unique facilities, and the applicant will be required to deposit the sum of $100,000 in an escrow account with the Town, which the Town may use to pay for any expenses it incurs related to this project. The fees established herein may be amended from time to time by resolution of the Town Board.
(3)
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, including the review required by SEQRA.
M.
Project management and oversight.
(1)
Upon approval by the Town Board of a WECS special use permit application, and as a condition to the issuance of a WECS special use permit, the applicant shall designate a field representative and site manager who will be responsible for overseeing compliance with the conditions of the permit. Such representative and site manager shall be in place for as long as the WECS is in place. This person will have the authority to make management and technical decisions as situations demand. The applicant shall provide and update, at all times, the names, addresses, daytime telephone numbers and emergency telephone numbers of the field representative and site manager to the Town Code Enforcement Officer and the Town Supervisor. The applicant shall also provide contact information for all entities providing operation, maintenance and monitoring services.
(2)
As a condition to the issuance of a WECS special use permit, the services of an engineering firm will be retained by the Town of Somerset during the construction phase of the WECS project.
(3)
Prior to commencing construction, the applicant shall pay the Town a project inspection fee in the amount of 3% of the estimated cost of construction, including all materials, contracts and labor. Said amount is determined to be the reasonable cost to the Town to provide for such inspection. If the cost to the Town is less than that amount, the balance shall be refunded to the applicant upon completion of the construction, issuance of a certificate of occupancy and approval of all state and federal agencies.
(4)
The engineering firm will oversee all aspects of construction and will be included in all design, construction, and planning meetings and shall be provided with all technical information, specifications and drawings. A representative of the engineering firm shall be on site at all times during the construction phase. The firm will also monitor road and infrastructure use and determine any damages to the same.
(5)
The engineering firm's duties shall include coordination with the Code Enforcement Officer for enforcement actions and project specification compliance, and it will be confirming that all project specifications are implemented. The firm's representative may recommend that the Code Enforcement Officer issue a stop-work order for issues including but not limited to: safety; developer compliance issues; and insufficient project documentation.
(6)
The applicant shall file daily, weekly and monthly construction plans and will follow the planned work schedule as much as possible. When daily, weekly, or monthly schedules are not completed as planned, updated schedules shall be developed and given to the engineering firm representative.
(7)
The applicant shall provide the engineering firm representative and the Code Enforcement Officer with as-built drawings within one week of completion of each portion of the construction phase, or as requested by the engineering firm representative, or Building Inspector.
(8)
All upgrades or changes to the WECS project, as permitted, shall be reviewed and approved by the engineering firm and Code Enforcement Officer prior to the implementation of such upgrades or changes. No changes to basic design, height or location will be permitted unless approved as an amendment to the application by the Town Board.
(9)
A final maintenance plan shall be provided to and approved by the Code Enforcement Officer, with input from the engineering firm, prior to issuance of a certificate of occupancy, including but not limited to:
(a)
A list of all items requiring regular maintenance.
(b)
Duration of accumulated time between scheduled maintenance.
(c)
Work to be completed during the maintenance operation.
(d)
Person responsible for the maintenance.
(e)
Process the applicant uses to ensure maintenance is carried out appropriately.
(10)
All performance data routinely monitored during turbine operation shall be provided to the Code Enforcement Officer. Data shall include, but is not limited to:
(a)
Vibration levels.
(b)
Noise levels.
(c)
Rotational speeds.
(d)
Kilowatt-hours of production.
(11)
All maintenance reports shall be filed with the Code Enforcement Officer monthly, or more frequently as required.
(12)
In the event of an accident, the Town Code Enforcement Officer shall have the authority to shut down all of the affected turbines until a thorough investigation has taken place, a cause has been determined and steps have been taken to ensure the problem will not reoccur, as evidenced by a report to the Code Enforcement Officer.
N.
Enforcement; penalties and remedies for violations.
(1)
This section shall be enforced by the Town Code Enforcement Officer.
(2)
Any person owning, controlling or managing any building, structure or land who shall undertake a wind energy facility in violation of this section, or who operates such facility in noncompliance with the terms and conditions of any permit issued pursuant to this section, shall be guilty of a violation and subject to a fine of not more than $250 or to imprisonment for a period of not more than 15 days, or to both such fine and imprisonment. Every such person shall be deemed guilty of a separate offense for each week such violation shall continue.
(3)
The Code Enforcement Officer may, after notice of violation, enter into a consent order with the applicant/owner/operator to remedy the violation with specifications to be taken and an agreed schedule.
(4)
Special proceeding. In addition to any other remedy, the Town Board may institute an action or proceeding in equity, correct or abate any unlawful construction, erection, structural alteration, reconstruction, modification and/or use of a wind energy facility, and shall be entitled to injunctive relief, including a temporary restraining order and a temporary injunction as the court deems appropriate.
O.
Miscellaneous.
(1)
Nothing in this section, including the issuance of the permit by the Town, shall eliminate any property or rights of property owners or residents to enforce their legal remedies, including, but not limited to, actions in law or equity, in the nature of nuisance proceedings, or tort or negligence proceedings.
(2)
The Town reserves its right to opt out of the tax exemption provisions of Real Property Tax Law § 487, pursuant to the authority granted by Subsection (8) of said law, or by any other provision of law.
P.
Effective date. This section shall be effective upon its filing with the Secretary of State in accordance with the Municipal Home Rule Law.
§ 205-44 Public utilities.
Public utility uses, such as dial equipment centers and substations, but no service or storage yards, may be permitted in Agricultural or Business Districts with a special use permit. No special use permit shall be issued unless the Planning Board shall determine that:
A.
The proposed installation in a specific location is necessary and convenient for the efficiency of the public utility system or the satisfactory and convenient provision of service by the utility to the neighborhood or area in which the particular use is to be located.
B.
The design of any building in connection with such facility conforms to the general character of the area and will not adversely affect the safe and comfortable enjoyment of property rights of the zone in which it is located.
C.
Adequate and attractive fences and other safety devices will be provided.
D.
A buffer strip 10 feet in width shall be provided around the perimeter of the property.
E.
Adequate off-street parking shall be provided.
F.
All of the area, yard and building coverage requirements of the respective zone will be met.
§ 205-45 Motor vehicle service stations.
Motor vehicle service stations may be permitted in the Agricultural and Business Districts of the Town, provided that the following standards are observed:
A.
In addition to the information required in the special permit application and enumerated in § 205-65 of this chapter, the site plan submitted shall also show the number and location of fuel tanks to be installed, the dimensions and capacity of each storage tank, the depth the tanks will be placed below the ground, the number and location of pumps to be installed and the type of structure and accessory buildings to be constructed.
B.
The area and yard specifications for motor vehicle service stations are identified in the Schedule included as an attachment to this chapter.
C.
The entire area of the site traveled by motor vehicles shall be hard surfaced.
D.
Any repair of motor vehicles shall be performed in a fully enclosed building, and no motor vehicle shall be offered for sale on the site. No motor vehicle parts or partially dismantled motor vehicles shall be stored outside of an enclosed building.
E.
No vehicles shall be permitted to be standing or parked on the premises of a motor vehicle service station other than those used by the employees in the indirect or direct operation of the establishment.
F.
Accessory goods for sale may be displayed on the pump island and the building island only. The outdoor display of oil cans and/or antifreeze and similar products may be placed on the respective island if provided for in a suitable stand or rack.
G.
No motor vehicle service station or public garage shall be located within 500 feet of any public entrance to a church, school, library, hospital, charitable institution or place of public assembly. Such distance shall be measured in a straight line from said public entrance to the lot line nearest said entrance along the street line.
H.
Where a motor vehicle service station abuts a residential zone, it shall be screened by a buffer area no less than 10 feet in depth composed of densely planted evergreen shrubbery, solid fencing or a combination of both which, in the opinion of the Planning Board, will be adequate to prevent the transmission of headlight glare across the zone boundary line. Such buffer screen shall have a minimum height of six feet above the station. The materials used shall be in keeping with the character of the adjacent residential area. If said shrubbery becomes decayed and fails to provide an adequate screen, the Code Enforcement Officer may direct the property owner to replace said shrubs.
I.
All fuel pumps shall be located at least 40 feet from any street right-of-way or property line.
J.
Each motor vehicle service station shall be permitted to have one freestanding pylon sign setting forth the name of the station and for the principal products sold on the premises, including a special company or brand name, insignia or emblem, provided that such sign shall not exceed 20 square feet in area on either of two sides and shall be hung within the property line and no less than 10 feet nor more than 25 feet above the ground. In addition, one sign may be placed or inscribed upon the front of a motor vehicle service station. Said sign shall not exceed an area equal to 15% of the surface upon which it is located and shall not project more than 12 inches in front of the facade. Such signs may be illuminated but shall not be flashing.
K.
Service stations may also exhibit one temporary sign located no less than 10 feet inside the property line and specifically setting forth special seasonal servicing of automobiles, provided that such sign does not exceed seven square feet in area.
§ 205-46 Excavation operations.
A.
Excavation operations, including the extraction of sand and gravel and processing, or other operations for the preparation of sand and gravel, but not including excavations for building construction, may be permitted in the I Industrial District, provided that the following conditions and standards are observed:
[Amended 6-10-1980; 3-11-1997 by L.L. No. 3-1997]
(1)
The minimum lot area for any such use shall be 10 acres. All buildings and excavation operations shall be located or shall occur not less than 200 feet from any street right-of-way and 100 feet from property lines. The Planning Board may require fencing or some similarly effective barrier six feet in height where excavations are to exceed a depth of four feet.
(2)
All buildings and structures used in such operations shall be dismantled and removed within 12 months following the termination of the operations, shall be made at the expense of the operator and shall be a condition of approval of the special use permit.
(3)
All buildings, structures and plants used for the processing of excavated materials shall be maintained so as to assure that such buildings, structures and plants shall not become dangerously dilapidated.
(4)
All equipment used for the excavation of sand and gravel and processing thereof shall be constructed, maintained and operated in such a manner as to eliminate, as far as is practicable, noises and vibrations and dust conditions which are injurious or substantially annoying to all persons living in the vicinity. All operations shall be conducted between the hours of 7:00 a.m. and 6:00 p.m., except on Sundays and except in the case of public or private emergency or whenever any reasonable or necessary repairs to equipment are required to be made.
(5)
All land which has been excavated must be rehabilitated, within one year after the termination of operations, at the expense of the operator in accordance with standards set and shall be a condition of approval of the special use permit.
(6)
All excavations must either be made to a water-producing depth or graded and backfilled.
(7)
Excavations made to a water-producing depth shall be properly sloped to the waterline, with banks sodded or surfaced with soil of an equal quality to adjacent land area topsoil. Such topsoil required under this section shall be planted with trees, shrubs, legumes or grasses upon the parts of such area where revegetation is possible.
(8)
Excavations not made to a water-producing depth must be graded or backfilled with nonnoxious, nonflammable noncombustible solid material and a topographic character which will result in substantial general conformity to adjacent lands. Such grading or backfilling shall be designed to minimize erosion and shall be surfaced with a soil equal in quality to the adjacent land area and planted with trees, shrubs, legumes or grasses upon the parts of such areas where revegetation is possible.
B.
All the foregoing conditions shall be bonded, the amount subject to the discretion of Planning Board.
§ 205-47 Structures taller than general district regulations. [1]
[Added 1-29-2018 by L.L. No. 2-2018]
A.
General provisions.
(1)
A "tall structure" is any structure taller than generally permitted within a zoning district.
(2)
Unless otherwise specified in this chapter, structures taller than 150 feet are not permitted in any district.
(3)
Any request for a tall structure as defined in this section shall be considered a Type I action under the New York State Environmental Quality Review Act.
(4)
No tall structure shall hereafter be used, erected, moved, reconstructed, changed or altered except in compliance with a special use permit granted by the Planning Board in conformity with these regulations. No existing structure shall be modified, and no existing special use permit shall be renewed, unless in conformity with these regulations.
(5)
These regulations shall apply to all districts in the Town.
(6)
Exceptions to these regulations are limited to new uses that are accessory to residential uses and lawful or approved uses existing prior to the effective date of these regulations. No existing special use permit shall be renewed unless in conformity with these regulations.
(7)
Where these regulations conflict with other laws and regulations of the Town of Somerset, the more restrictive shall apply.
(8)
No special use permit shall be issued for a tall structure unless the proposed use is deemed by the Planning Board to be in compliance with the Comprehensive Plan, the LWRP, and the Somerset Power Plant Multiple Use Plan, prepared by the Erie and Niagara Counties Regional Planning Board, dated November 1979.
(9)
At all times shared use of existing structures shall be preferred to the construction of new structures. Additionally, where such shared use is unavailable, location of antenna(s) on preexisting structures shall be considered. An applicant shall be required to present an adequate report listing existing tall structures within a reasonable distance of the proposed site and the possible use thereof.
(10)
The applicant shall pay all reasonable fees and costs of adapting an existing structure to a new shared use. These costs include but are not limited to structural reinforcement, preventing transmission or receiver interference, additional site screening and other changes, including real property acquisition or lease required to accommodate shared use.
B.
Use-specific regulations.
(1)
Residential and commercial buildings and their accessory use(s) may, by special use permit, use a tall structure not in accordance with regulations for the underlying district if the tall structure does not detract from the character of the surrounding structures and character of the neighborhood.
(2)
Telecommunications facilities may be allowed by special use permit in the Agricultural (A), Industrial (I), General Industrial (GI), and Planned Unit Development (PUD) Districts only if the applicant provides specific scientific evidence that the facility site is required to maintain adequate service. Telecommunication facilities in all other districts shall not be permitted. Telecommunication structures shall conform to static structure setback requirements of this article.
(3)
Church steeples may be erected by special use permit in any district.
(4)
Elevated water tanks connected to any public water supply system may be erected by special use permit in any district and shall conform to static structure setback requirements of this article.
(5)
Commercial and industrial smokestacks may be erected by special use permit only in Industrial (I), General Industrial (GI), and Planned Unit Development (PUD) Districts and shall conform to static structure setback requirements of this article.
(6)
Small chimney flues from heating appliances attached to residential and commercial structures shall not require a special use permit and are limited in height to 10 feet above the highest roof elevation. The structure and chimney may be subject to other requirements in this chapter.
(7)
Amusement and carnival rides such as roller coasters and Ferris wheels shall conform to static structure setback from parcel boundaries. Temporary installations associated with traveling shows installed for no more than 15 days do not require a special use permit. Installations for longer durations, including permanent structures, require a special use permit before construction.
(8)
Any wind energy facility shall use its electricity for primarily on-site consumption to offset utility expenses and/or provide independence from the power grid, with ties to the electrical grid as approved by the utility company. Power production primarily for sale to the electrical grid shall not be permitted unless in accordance with this chapter. Each facility shall conform to height and setback requirements of Subsection D(1)(b) of this section.
(9)
Agricultural silos, barns, and other tall agricultural accessory use structures shall conform to the height regulations and special use permit requirements outlined in this article. Agricultural wind energy facilities shall conform to height, setback and special use permit requirements defined in this article.
(10)
Public utility poles required for the delivery of electric, telecommunications, and/or streetlighting service(s) to customer premises may be erected without a special use permit in any district.
(11)
No tall structure shall be permitted within the Town unless the structure's use is explicitly enumerated in this section or otherwise permitted under this chapter.
C.
Regulations relating to new tall structures.
(1)
Any applicant seeking a special use permit under this article shall be required to submit a site plan as described in Article XVA of this chapter. If the application is for a wind energy facility, the site plan shall also include documentation on the proposed capacity and uses as well as justification for the height of any structure and associated instrumentation or turbines. Additionally, all special use permit applications to the Planning Board under this article shall require that the site plan include a completed Visual Environmental Assessment Form. The Planning Board may require submittal of a more detailed visual analysis and/or Local Waterfront Revitalization Plan (LWRP) review, or other review, based on the results of the Visual Environmental Assessment Form.
(2)
For new telecommunications structures, the applicant shall be required to submit a "search ring" prepared, signed and sealed by a licensed engineer in New York State and overlaid on an appropriate background map depicting the area within which a communications facility needs to be located, in order to provide proper signal strength and coverage to the target cell. The applicant must explain to the Planning Board why it selected the proposed site and discuss the availability or lack thereof of a suitable structure within the search ring for co-location and the extent to which the applicant has explored locating the proposed structure in a less sensitive area. All correspondence with other telecommunications providers shall be included as part of the application.
(3)
In the interest of minimizing the number of new tall structures, the Planning Board shall require, as a condition of any permits granted, that the applicant indicate in writing its commitment to co-location of other uses on its tower(s). The applicant will agree to negotiate in good faith for shared use of the proposed tower by other co-locators in the future. The condition for future co-location may not be required if the applicant demonstrates that provisions of future shared usage are not feasible based on:
(a)
Whether the kind of structure and site plan proposed is compatible with co-located uses.
(b)
Whether there are already adequate available spaces on other existing and approved structures.
(c)
Whether the potential for adverse visual impact of a new or changed structure would be increased by a design accommodating shared use and co-location.
(4)
All tall structures shall be sited to minimize the adverse visual effect on the environment.
D.
Additional substantive requirements.
(1)
Setbacks.
(a)
Static structure setbacks. Tall structures supporting only nonmoving instruments shall maintain a property line setback of 1.5 times the total structure height. The setback measurement shall begin from the outermost edge of the structural base.
(b)
Dynamic structure setbacks. Tall structures supporting any moving features or parts larger than one meter in diameter, including but not limited to a wind energy facility, shall maintain a property line setback of 5.5 times the total structure height. For wind energy facilities, the setback measurement shall start from the outermost point of any turbine blade at any directional position on the tower or outermost edge of the structural base, whichever is further from the central vertical axis of the tower. Tall structures with moving features or parts larger than one meter in diameter shall not be permitted closer than three miles of the Lake Ontario shoreline, the boundary areas of the Town of Somerset LWRP, or any planned or existing public park; nor within the greater of 1/2 mile or six times the height of the turbine of any residence, structure, public road, or property line where one property owner has not entered into an agreement with any person or entity seeking to develop or operate a wind energy conversion system; nor within one mile of any village, hamlet, school, church, cemetery, or area eligible for listing on the National Registry of Historic Places.
(c)
Setbacks shall apply to all structural foundations, appurtenances, and turbine parts, excluding guy wires and anchors. All accessory structures shall comply with the existing setbacks within the underlying district regulations found in this chapter.
(d)
Guy wires and anchors shall have a minimum of 15 feet setback from any structure or property line.
(e)
In no case shall setbacks be less than the existing setbacks within the underlying district.
(f)
Additional setbacks may be required by the Planning Board to preserve privacy or protect health, safety and welfare of adjoining property owners.
(2)
Lighting. Tall structures shall not have artificial lighting except to assure human safety as required by the FAA and employ ground-avoidance in lighting fixture selection. Aviation safety lighting shall be night-vision-goggle compliant. Tall structures shall be galvanized finish or painted gray unless other standards are required by the FAA. Structures should be designed and sited, including height limitations, so as to avoid, whenever possible, application of the FAA lighting and painting requirements. Ground-based floodlights used for nighttime illumination shall minimize light dispersion and pollution in directions other than onto the structure. The Planning Board may impose additional restrictions regarding illumination to reduce impacts to adjoining parcels and maintain neighborhood character.
(3)
Screening and fencing. Tall structures shall be screened from public view to the maximum extent practicable. Existing on-site vegetation shall be preserved to the maximum extent possible. Deciduous or evergreen tree planting may be required to screen portions of the structure(s) from nearby property. In addition, all tall structures, guy wires, and other supporting or appurtenant structures shall be surrounded by fencing sufficient to protect the public health and safety, as determined by the Planning Board and/or the Code Enforcement Officer.
(4)
Parking. The applicant shall provide a single-lane service road to assure adequate emergency and service access. Road construction shall be consistent with proper practice to reduce loss of vegetation and eliminate soil erosion.
(5)
Supporting documentation. The following documentation related to any tall structure sited in the Town of Somerset shall be provided to the Planning Board:
(a)
All information prepared by the manufacturer of the proposed structure, tower, instruments, and/or turbine (if a wind energy facility), including but not limited to i) Make and model of tower or structure; ii) Manufacturer's design data for installation instructions and construction plans; iii) Applicant's proposed maintenance and inspection procedures and records systems; iv) Anti-climb devices for the structure and any guy wires.
(b)
A copy of the applicant's FCC and/or FAA licenses (if applicable).
(c)
When shared use is possible, an engineer's report certifying that a proposed shared use will not diminish the structural integrity and safety of the existing tall structure or explaining what modification(s), if any, will be required in order to certify to the above.
(d)
Documentation from the owner of an existing tall structure or tower for allowed shared use.
(e)
Documentation that all guy wires, guy wire anchors and structures shall be sufficiently secured to protect them from trespassing or vandalism.
(f)
The applicant shall agree in writing to keep the tall structure facility, including road and all surrounding area, in good working order and safe condition.
(6)
Removal of obsolete and/or unused tall structures.
(a)
The applicant shall agree in writing, and post a bond or other security acceptable by the Planning Board approximate to the sum of anticipated removal expenses at the end of useful service, to remove the structure if the facility becomes obsolete or damaged beyond use or ceases to be used for its intended use for 12 consecutive months. After that twelve-month period, removal shall take place within six months. Such agreement shall also include a commitment by the applicant to impose a similar obligation upon any person subsequently securing any rights to the structure.
(b)
All applicants applying for tall structure special use permits shall reimburse the Town of Somerset for fees incurred for consultants and/or specialists to assist in the application and/or engineering costs and may be required to enter into an agreement and maintain a fund with the Town for such purpose.
(c)
The owners of any tall structure shall have it inspected by a New York State-licensed engineer for structural integrity at least one time each calendar year, or more frequently if required by technical documentation, or if requested by the Code Enforcement Officer. A copy of the inspection report shall be submitted to the Code Enforcement Officer.
(7)
Additional conditions. The Planning Board may impose any additional conditions to a tall structure special use permit necessary to protect public health, safety, and welfare or any conditions that are otherwise to enforce the goals and objectives of this chapter.
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Editor's Note: Former §§ 205-47, 205-48 and 205-49, regarding cluster residential developments, planned unit developments and planned business areas, respectively, were repealed 5-14-2013 by L.L. No. 2-2013.