Local Law No.___ of 2006 – Revised 11-09-06
Be it hereby enacted by the Town Board of the Town of Cherry Valley
as follows:
SECTION 1: Local Law No.___ of 2006, entitled "WIND ENERGY FACILITIES," is hereby
adopted to read in its entirety as follows:
WIND ENERGY FACILITIES
Article I
¤1 Title
This Local Law may be cited as the "Wind Energy Facility Law of
the Town of Cherry Valley, New York."
¤2 Purpose.
The Town Board of the Town of Cherry Valley adopts this Local Law to
promote the effective and efficient use of the Town's wind energy resource
through Wind Energy Conversion Systems (WECS), and to regulate the placement of
such systems so that the public health, safety, and welfare will not be
jeopardized.
¤3 Authority
The Town Board of the Town of Cherry Valley enacts this Local Law 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 (1) and (7).
3. New York Municipal Home Rule Law, ¤ 10 (1)(i) and (ii) and ¤I0 (1)(a)(6),
(11), (12), and (14).
4. New York Town Law ¤130(1)(Building Code), (3)(Electrical Code), (5)(Fire
Prevention), (7)(Use of streets and highways), (7-a)(Location of Driveways), (11)(Peace,
good order and safety), (15)(Promotion of public welfare), (15-a)(Excavated
Lands), (l6)(Unsafe buildings), (l9)(Trespass), and (25)(Building lines).
5. New York Town Law ¤64(17-a)(protection of aesthetic interests),
(23)(General powers).
6. The State Environmental
Quality Review Act (ÒSEQRAÓ).
¤4. Findings.
A. The Town Board of the Town of Cherry Valley finds and declares that
1. Wind energy is an abundant, renewable and
nonpolluting energy resource of the Town and its conversion to electricity may help
reduce dependence on nonrenewable energy sources and decrease the air and water
pollution that results from the use of conventional energy sources.
2. The generation of electricity from properly sited
wind turbines, including small systems, can be cost effective, and in many
cases existing power distribution systems can be used to transmit electricity
from wind-generating stations to utilities or other users, or energy
consumption at that location can be reduced.
3. Regulation of the siting and installation of wind
turbines is necessary for the purpose of protecting the health, safety, and
welfare of neighboring property owners and the general public.
4. Wind Energy Facilities have the potential to cause significant
aesthetic impacts if not properly sited, because of their large size, lighting,
and shadow flicker effects.
5. If not properly regulated, installation of Wind
Energy Facilities have the potential to create drainage problems through
erosion, lack of sediment control for facility, access road sites and harm
farmlands through improper construction methods.
6. Wind Energy Facilities may present a risk to bird
and bat populations if not properly sited.
7. If not properly sited, Wind Energy Facilities have
the potential to adversely impact neighboring properties, including the property
values of such properties.
8. Wind Energy Facilities are potentially significant
sources of noise, and if such facilities are unregulated or improperly sited,
or if such impacts are inadequately mitigated, they can negatively impact
adjoining properties.
9. Without proper planning, construction of Wind
Energy Facilities can create traffic problems and damage local roads.
10. If improperly sited, Wind Energy Facilities can
interfere with various types of communications.
¤5. Review of Wind Energy Facilities
A. The Town of
Cherry Valley Planning Board is hereby authorized to review applications and
recommend to the Town Board either approval, approved with conditions, or
disapproval of applications for Wind Energy Facilities.
B. In the
event financial offsets are offered, the Town Board of the Town of Cherry
Valley shall act as the review board of said offsets.
¤6. Permits Required;
Transfer; Modifications
A. No Wind Energy Facility shall be constructed, reconstructed,
modified, or operated in the Town of Cherry Valley except in compliance with
this Local Law.
B. No WECS shall be constructed, reconstructed, modified, or operated
in the Town of Cherry Valley except with a Wind Energy Facility Permit approved
pursuant to this Local Law.
C. No Wind Measurement Tower shall be constructed, reconstructed,
modified, or operated in the Town of Cherry Valley except pursuant to a Wind
Energy Facility Permit issued pursuant to this Local Law.
D. No Small Wind Energy Conversion System shall be constructed,
reconstructed, modified, or operated in the Town of Cherry Valley except
pursuant to a Wind Energy Permit issued pursuant to this Local Law.
E. This Local Law shall apply to all areas of the Town
of Cherry Valley.
F. Exemptions. No permit or other approval shall be required under this
Local Law for mechanical, non electrical WECS utilized solely for agricultural
operations.
G. Transfer. No transfer of any Wind Energy Facility or Wind Energy
Permit, nor sale of the entity owning such facility including the sale of more
than 30% of the stock of such entity (not counting sales of shares on a public
exchange), may occur without prior approval of the Town of Cherry Valley, which
approval shall not be unreasonably withheld upon written acceptance of the transferee
of all obligations of the transferor under such permit and this Local Law. No transfer shall eliminate or
modify the liability of any permitee or applicant, nor of any other party under
this Local Law.
H. Notwithstanding the
requirements of this Section, replacement in kind or modification of a Wind
Energy Facility may occur without Town Planning Board and Town Board approval
when (1) there will be no increase in Total Height; (2) no change in the
location of the WECS; (3) no additional lighting or change in facility color;
and (4) no increase in noise produced by the WECS.
¤7 Definitions.
As used in this Local Law, the following terms shall have the meanings
indicated:
AMBIENT SOUND LEVEL –
also referred to as Ambient Noise Level and Ambient Sound Pressure Level, means
the background (exclusive of the development proposed) Sound Level (L(90))
found to be exceeded 90 percent of the time over which sound is measured in a
noise analysis. Unless indicated
otherwise, frequency weighting according to the A-weighting scale is understood
to be applicable.
EAF - Environmental Assessment Form used in the implementation of the
SEQRA as that term is defined in Part 617 of Title 6 of the New York Codes,
Rules and Regulations.
RESIDENCE - means any dwelling suitable for human habitation existing
in the Town of Cherry Valley on the date an application is received. For
purposes of this definition suitable for habitation shall mean that its primary
purpose is for private occupancy and it has both electrical service and a
connection to an on-site or off-site potable water supply and wastewater treatment/disposal system
on a full-time basis. A residence
may be part of a multi-dwelling or multipurpose building, but shall not include
buildings such as hunting camps, hotels, hospitals, motels, dormitories,
sanitariums, nursing homes, schools or other buildings used for educational
purposes, or correctional institutions.
SEQRA - the New York State Environmental Quality Review Act, as
codified in Article 8 of the New York State Environmental Conservation Law and
its implementing regulations in Title 6 of the Official Compilation of Codes,
Rules and Regulations of the State of New York, Part 617 et seq. (6 NYCRR ¤617).
SOUND LEVEL – also referred to as Noise Level, means the
statistical sound pressure level expressed as the sound pressure level that is
exceeded for a given proportion of the time over which sound is measured. L(10) shall mean the
standard abbreviation for the sound pressure level that is exceeded for 10
percent of the time over which the sound is measured. L(90) shall mean the standard abbreviation for
the sound pressure level that is exceeded for 90 percent of the time over which
the sound is measured. Unless
indicated otherwise, frequency weighting according to the A-weighting scale is
understood to be applicable.
SOUND PRESSURE LEVEL – means the quantity in decibels measured by
a sound level meter satisfying the requirements of the American National
Standards Specification of Sound Level Meters, S1.4-1971 according to a
frequency-weighted decibel scale.
Decibels shall mean 20 times the logarithm to the base ten of the ratio
of the root mean squared pressure of a sound to a reference pressure of 20 micropascals. dB shall mean the standard abbreviation
for decibels. Frequency-weighting
of the sound pressure level is obtained with the standardized dynamic
characteristic ÒfastÓ or ÒslowÓ and weighting A, B or C; unless indicated
otherwise, the A-weighting is understood to be applicable. dBA shall mean the standard
abbreviation for the A-weighted sound pressure level in decibels.
SITE - The parcel(s) of land where a Wind Energy Facility is to be
placed. The Site can be publicly or privately owned by an individual or a group
of individuals controlling single or adjacent properties. Where multiple lots
are in joint ownership, the combined lots shall he considered as one for
purposes of applying setback requirements. Any property which has a Wind Energy
Facility or has entered an agreement for said Facility or a setback agreement
shall not be considered off-site.
SMALL WIND ENERGY CONVERSION SYSTEM ("Small WECS") - A wind
energy conversion system consisting of a wind turbine, a tower, and associated
control or conversion electronics, which has a rated capacity of not more than
100 kW and which is intended to primarily reduce consumption of utility power
at that location.
TOTAL HEIGHT -- The height of the tower and the furthest vertical
extension of the WECS.
WIND ENERGY CONVERSION SYSTEM ("WECS") - A machine that
converts the kinetic energy in the wind into a usable form (commonly known as a
"wind turbine" or "windmill").
WIND ENERGY FACILITY - Any Wind Energy Conversion System, Small Wind Energy Conversion System, or Wind Measurement Tower, including all related infrastructure, electrical lines and substations, access roads and accessory structures.
WIND MEASUREMENT TOWER - a tower used for the measurement of
meteorological data such as temperature, wind speed and wind direction.
WIND ENERGY PERMIT - A permit granted pursuant to this Local Law
granting the holder the right to construct, maintain and operate a Wind Energy
Facility.
¤8. Applicability
A. The requirements of this Local Law shall apply to all Wind Energy
Facilities proposed, operated, modified, or constructed in the Town of Cherry
Valley after the effective date of this Local Law, including any Wind Energy
Facility, applied for but not yet approved prior to the date of this Local Law.
B. Wind Energy Facilities for which a required permit has been properly
issued and upon which construction has commenced prior to the effective date of
this Local Law, shall not be required to meet the requirements of this Local
Law; provided, however, that
1. Any such preexisting Wind Energy Facility which
does not provide energy for a continuous period of twelve (12) months shall
meet the requirements of this Local Law prior to recommencing production of
energy.
2. No modification or alteration to an existing Wind
Energy Facility shall be allowed without full compliance with this Local Law.
3. Any Wind Measurement Tower existing on the
effective date of this Local Law shall be removed no later than twenty-four
(24) months after said effective date, unless a Wind Energy Permit for said
Wind Energy Facility is obtained.
¤¤9 Reserved for Future Use
Article II
Wind Energy Conversion Systems
¤10 Applications for Wind Energy Permits for Wind Energy Conversion
Systems
No application for a Wind Energy Permit shall be complete until the
following materials are received by the Planning Board, in acceptable form,
unless specifically waived by the Planning Board. Such information shall be in addition to and not instead of
any information required by the Town of Cherry Valley, under any related Local
Law or Ordinance, including but not limited to the Town of Cherry Valley Site
Plan Law:
A. Name, address, 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,
address, telephone number of the property owner. If the property owner is not
the
applicant, the application shall include a letter or other written permission
signed by the property owner (i) confirming that the property owner is familiar
with the proposed applications and (ii) authorizing the submission of the
application.
C. Address,
or other property identification, of each proposed tower location, including
Tax
Map section, block and lot number.
D. A description of the project, including the number and maximum rated
capacity of each WECS.
E. 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 major
existing structures and uses on the Site, public roads, and adjoining
properties within five hundred (500) feet of the boundaries of the proposed
WECS Site.
3. Location and elevation of each proposed WECS.
4. Location of all above ground utility lines on the
Site or within one radius of the Total Height of the WECS, transformers, power
lines, interconnection point with transmission lines, and other ancillary
facilities or structures.
5. Location and size of structures above 35 feet
within a five-hundred-foot radius of the proposed WECS. For purposes of this
requirement, electrical transmission and distribution lines, antennas and slender
or open lattice towers are not considered structures.
6. To demonstrate compliance with the setback
requirements of this Article, circles drawn around each proposed tower location
equal to:
(i) One and a halftimes the tower height.
(ii) Five hundred foot perimeter.
(iii) One thousand foot perimeter.
(iv)
One thousand five hundred foot perimeter.
(v)
Two thousand foot perimeter.
7. Location of the each residential structure, both on
the Site and off the Site, that is located within two thousand five hundred
feet from the nearest individual Wind Energy Facility, as well as the specific distance
from the nearest individual Wind Energy Facility to each residential structure.
8. All proposed facilities, including access roads,
electrical lines, substations, storage or maintenance units, and fencing.
F. Vertical drawing of
the WECS showing Total Height, turbine dimensions, tower and turbine colors,
ladders, distance between ground and 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 existing vegetation and describing any
areas to be cleared and the specimens proposed to be added, identified by
species and size of specimen at installation and their locations.
H. Lighting Plan showing any FAA-required lighting as well as all other
proposed lighting. The application should include a copy of any determination
by the Federal Aviation Administration to establish required markings and/or
lights for each structure that is part of the facility, but if such
determination is not available at the time of the application, no building
permit for any lighted facility may be issued until such determination is
submitted.
I. List of property owners, with their mailing address, within 500 feet
of the boundaries of the proposed Site.
J. Decommissioning Plan: The applicant shall submit a decommissioning
plan, which shall include the following information at a minimum: 1) the
anticipated life of the WECS; 2) the estimated decommissioning costs in current
dollars; 3) how said estimate was determined; 4) the method of ensuring that
funds will be available for decommissioning and restoration; (5) the method,
such as by annual re-estimate by a licensed engineer, that the decommissioning
cost will be kept current; and 6) the manner in which the WECS will be
decommissioned and the Site restored, which shall include at a minimum, the removal
of all structures and debris to a depth of 3 feet, restoration of the soil, and
restoration of vegetation (consistent and compatible with surrounding
vegetation), less any fencing or residual minor improvements requested by the
landowner.
K. Complaint Resolution: The application will include a complaint
resolution process to address complaints from nearby residents. The process may
use an independent mediator or arbitrator and shall include a time limit, of no
more than 180 days, for acting on a complaint. The applicant shall make every
reasonable effort to resolve any complaint.
L. An application shall include at a minimum, the
following information relating to the construction/installation of the wind
energy conversion facility:
1. A construction schedule describing commencement and
completion dates; and
2. A description of the routes to be used by
construction and delivery vehicles, the gross weights and heights of those
loaded vehicles.
M. Completed Part 1 of the Full EAF.
N. Applications for Wind Energy Permits for Wind Measurement Towers
subject to this Local Law may be jointly submitted with the WECS application.
O. For each proposed WECS, include make, model, picture and
manufacturer's specifications, including noise decibels 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.
P. If the applicant agrees in writing in the application that the
proposed WECS may have a significant adverse impact on the environment and
submits a Draft Environmental Impact Statement (ÒDEISÓ), the Town Board shall
issue a positive declaration of environmental significance.
Q. The following information must be submitted by the applicant, either
with the application, or, in the event of a positive declaration under SEQRA,
as part of any DEIS submitted by the applicant with respect to the application
for a Wind Energy Facility:
1. Shadow Flicker: The applicant shall conduct
a study on potential shadow flicker. The study shall identify locations where
shadow flicker may be caused by the WECSs and the expected durations of the
flicker at these locations. The study shall identify areas where shadow flicker
may interfere with residences and/or commercial businesses and must describe
measures that shall be taken to eliminate or mitigate the impacts of shadow
flicker on such residences, including but not limited to operational measures
to stop rotation at such times when modeling predicts that shadow flicker will
impact neighboring residences.
2. Visual Impact: Applications shall include a
visual impact study of the WECS as proposed, which should include, at a
minimum, a computerized photographic simulation demonstrating any visual
impacts from strategic vantage points, including visual impacts associated with
both the facility itself, as well as any proposed above-ground collection or
transmission components. Color photographs of the proposed Site from at least
two 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. In addition, such visual impact study must address, among
others, the visual impact of any proposed facility upon New York State Route
20, and Otsego County Route 54, which have been approved for designation in the
State of New YorkÕs Scenic Byway Program.
Such Visual Impact analysis should conform to DEC guidelines where
relevant.
3. Fire Protection and Emergency Response: Applications shall include a fire
protection and emergency response plan, created in consultation with the fire
department(s) having jurisdiction over the proposed Site.
4. Noise Assessment: Applications shall include a Noise Impact Assessment conducted
by a reputable acoustical consultant documenting the noise levels associated
with the proposed WECS and its impact on humans. Such Noise Impact Assessment
should be conducted in accordance with the criteria recommended by the New York
State Department of Environmental ConservationÕs Program Policy guidance
document entitled: ÒAssessing and Mitigating Noise ImpactsÓ, utilizing adjacent
property lines as receptor locations.
Such Noise Assessment must also describe measures that shall be taken to
eliminate or mitigate the impacts of noise on nearby receptors.
5. Avian
Analysis: Applications shall
include an Avian Analysis assessing the reasonably anticipated impacts of the
WECS upon bird and bat species. The
scope of such analysis should be developed in consultation with the New York
State Department of Environmental Conservation and the United States Fish and
Wildlife Service, and must at a minimum consist of a literature survey for
threatened and endangered species and provide relevant information on critical
flyways, and shall describe the potential impacts of any proposed facilities on
bird and bat species, and an avoidance or mitigation plan to avoid or mitigate
such impacts to the extent practicable.
The applicant should also identify plans for post-construction
monitoring or studies to assess actual operational impacts of the WECS upon
birds and bats.
6. Property Values: Applications shall include a property value analysis
prepared by a licensed appraiser in accordance with industry standards,
regarding the potential impact of values of properties neighboring WECS Sites. Such analysis should include actual
data concerning the impacts of previously constructed facilities in the State
of New York on property values. This analysis shall be presented to the Town Board for its
consideration.
7. Electromagnetic
Interference: Applications
shall include an assessment of potential electromagnetic interference from the
proposed facility with microwave, radio, television, personal communication
systems and other wireless communication.
8. Transportation
Plan: Applications shall
include 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 construction. Such plan should also describe any anticipated improvements
to existing roads, bridges or other infrastructure, as well as the measures
which will be taken to restore damaged or disturbed access routes following
construction.
9. Groundwater
Impact Study: Applications shall include a study relating to the
potential impacts to groundwater related specifically to excavation and/or
blasting during the construction phase of the project.
10. Cultural
Resource Study: Applications shall include a study describing the
potential impacts of the project upon cultural resources as identified by the
Planning Board and NYSOPRHP. Such
study should be conducted in coordination with the New York State Office of
Parks, Recreation and Historic Preservation (ÒNYSOPRHPÓ). Such study should include any follow-up
study or assessment recommended in the initial study itself, or by
NYSOPRHP.
R. The applicant shall, prior to the receipt of a building permit,
provide proof that it has executed an Interconnection Agreement with the New
York Independent System Operator and the applicable Transmission Owner.
S. A statement, signed under penalty of perjury, that the information contained
in the application is true and accurate.
T. In addition to the
materials required in accordance with this section, complete applications
should include any additional study or assessment determined to be required by
the lead agency during review of the project pursuant to SEQRA. No application shall be determined to
be complete until the SEQRA review with respect to such application is
concluded.
¤ 11 Application Review Process
A. Applicants may request a pre-application meeting
with the Town Planning Board or with any consultants retained by the Town Planning
Board for application review. Meetings with the Town Planning Board shall be
conducted in accordance with the Open Meetings Law.
B. Six copies of the application shall be submitted to the Town Clerk
or designee. Payment of all application fees shall be made at the time of
application submission. If any waivers are requested, waiver application fees
shall be paid at the time of the receipt of the application. In addition, the applicant shall
provide the Planning Board, free of charge, with a reasonable number of additional
copies necessary to coordinate review with involved agencies and interested
parties, pursuant to SEQRA.
C. Town staff or Town designated consultants shall, within 30 days of
receipt, or such longer time if agreed to by the applicant, determine if all
information required under this Article is included in the application, unless
the Town Board waives any application requirement, no application shall be
considered complete and ready for final action until deemed complete and until
either a negative declaration is issued under SEQRA, or, a Final Environmental
Impact Statement and SEQRA Findings are issued by the lead agency.
D. If the
application is deemed incomplete, the Town Planning Board or its designated
reviewer 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 WECSs proposed is increased.
E. Upon submission of a complete application, including the grant of
any application waiver by the Planning Board, the Town Clerk shall transmit the
application to the Town Planning Board.
F. The Planning
Board shall hold at least one public hearing on the application. Notice shall
be provided by first class mail to property owners within 500 feet of the
boundaries of the proposed WECSs, and published in the Town's official
newspaper, no less than ten nor more than twenty days before any hearing, but,
where any hearing is adjourned by the Town Planning Board to hear additional
comments, no further publication or mailing shall be required. The applicant
shall prepare and mail the Notice of Public Hearing prepared by the Planning
Board, and shall submit an affidavit of service. The assessment roll of the
Town shall be used to determine mailing addresses. .
G. The public hearing may be combined with any other public hearing
required, including public hearings held pursuant to SEQRA.
H. Referral shall also be made, when applicable, to the Otsego County
Planning Board, pursuant to General Municipal Law ¤¤239-1 and 239-m.
I. SEQRA
review. Applications for WECS shall be deemed Type I projects under SEQRA. The
Town of Cherry Valley Planning Board shall be responsible for the
review of the proposed project under SEQRA, shall where appropriate, act as
lead agency under SEQRA and shall coordinate its review with all other involved
agencies having discretionary approval over any aspect of the proposed project
in accordance with the requirements of SEQRA.
J. The Planning Board shall require an escrow agreement for the
engineering and legal review of the applications and any environmental impact
statements before commencing its review.
K. At the completion of the SEQRA review process, if a positive
declaration of environmental significance has been issued and an environmental
impact statement prepared, the Town Planning Board shall issue a Statement of
Findings, which Statement may also serve as the Town's decision on the
applications.
L. Upon receipt 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 may approve, approve with conditions, or deny
the applications, in accordance with the standards in this Article and
applicable law.
¤12 Standards for WECS
The following standards shall apply to all WECS, unless specifically
waived by the Planning Board.
A. All
power transmission lines from the tower to any building or other structure
shall be located underground to the maximum extent practicable.
B. No
television, radio or other communication antennas may be affixed or otherwise
made part of any WECS, except pursuant to the Town Code. Applications may be
jointly submitted for WECS and telecommunications facilities.
C. In order to minimize any visual impacts associated with Wind Energy
Facilities, no advertising signs are allowed on any part of the Wind Energy
Facility, including fencing and support structures.
D. Lighting of tower. No tower shall be lit except to comply with FAA
requirements. Minimum security lighting for ground level facilities shall be
allowed as approved on the Wind Energy Facility development plan.
E. All applicants shall use measures to reduce the visual impact of
WECSs to the extent possible. WECSs shall use tubular towers. All structures in
a project shall be finished in a single, non-reflective matte finished color or
a camouflage scheme. WECSs within a multiple WECS project shall be constructed
using wind turbines whose appearance, with respect to one another, is similar
within and throughout the Project, 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.
F. The use of guy wires is disfavored. A WECS using guy wires for tower
support shall incorporate appropriate measures to protect the guy wires from
damage which could cause tower failure.
G. No WECS shall be installed in any location where its proximity with
existing fixed broadcast, retransmission, or reception antenna for radio,
television, or wireless phone or other personal communication systems can be
reasonably expected to 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
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 Wind Energy Permit for the specific WECS or WECSs
causing the interference.
H. All
solid waste and hazardous waste and construction debris shall be removed from
the
Site and managed in a manner consistent with all appropriate rules and
regulations.
I. WECSs 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 when feasible. The use of previously developed areas will be given
priority wherever possible.
J. WECSs shall be located in a manner that minimizes significant
negative impacts on rare animal species in the vicinity, particularly bird and
bat species.
K. Wind energy conversion facilities shall be located in a manner
consistent with all applicable state and Federal wetlands laws and regulations.
L. Storm-water run-off and erosion control shall be managed in a manner
consistent with all applicable state and Federal laws and regulations.
M. The maximum Total Height of any WECS shall be 410
feet.
N. Any substation used in conjunction with a WECS
shall be sited in a manner that will have the least intrusive impact upon
adjacent residences and shall be sheltered and/or screened with a physical
barrier and/or vegetation in a matter to eliminate its views from such
residences. The Planning Board
shall assess such siting in accordance with the requirements of this Local Law
and the TownÕs Site Plan Law.
O. Construction of the WECS shall be limited to the
hours of 7 a.m. to 7 p.m., Monday through Friday, unless the prior written
approval of the Planning Board is received to allow deviation from such hours.
P. In
processing any application for a WECS or in reviewing such project under SEQRA,
the Planning Board shall consider any applicable policy or guideline issued by
the New York State DEC (i.e., visual impacts, noise impacts).
Q.
Turbine blades shall pass no closer than thirty (30) feet to the ground
during operation of the facility.
¤13 Required Safety Measures
A. 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.
B. 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. The Town Board may require additional
signs based on safety needs.
C. No climbing pegs or tower ladders shall be located closer than
twelve (12) feet to the ground level at the base of the structure for
freestanding single pole or guyed towers.
D. The minimum distance between the ground and any part of the rotor or
blade system shall be in compliance with all state standards but in no case,
less than thirty (30) feet.
E. WECSs shall be designed to prevent unauthorized external access to
electrical and mechanical components and shall have access doors that are kept
securely locked at all times.
¤14 Traffic Routes
A. Construction of WECSs poses potential risks because of the large
size construction vehicles and their impact on traffic safety and their
physical impact on local roads. Construction and delivery vehicles for WECSs
and for associated facilities shall use traffic routes established as part of
the application review process. Factors in establishing such corridors shall
include (1) minimizing traffic impacts from construction and delivery vehicles,
including impacts on local residential areas; (2) minimizing WECS related
traffic during times of school bus activity; (3) minimizing wear and tear on
local roads; and (4) minimizing impacts on local business operations. Wind
Energy Permit conditions may limit WECS-related traffic to specified routes,
and include a plan for disseminating traffic route information to the public.
B. The applicant is responsible for repair of all damages to Town Roads
occurring during the construction or maintenance of a WECS. A public
improvement bond shall be posted prior to the issuance of any building permit
in an amount, determined by the Planning Board, sufficient to compensate the
Town for any damage to local roads.
¤15 Setbacks and Noise Standards for Wind Energy Conversion Systems
A. Due to the non-industrial character of the Town of Cherry Valley,
the Sound Level statistical sound pressure level (L(90)) shall not
exceed the Ambient Sound Level by more than 6dBA at the nearest property line
to any proposed WECS. Sites can
include more than one property and the requirement shall apply to the combined
properties. In the event the
Ambient Sound Level exceeds 50dBA, the standard shall be the Ambient Sound
Level plus a maximum of 5 dBA.
Independent certification shall be provided before and after
construction demonstrating compliance with this requirement.
B. In the event audible noise due to Wind Energy Facility operations
contains a steady pure tone, such as a whine, screech, or hum, the standards
for audible noise set forth in subparagraph A. of this subsection shall be
reduced by five (5) dBA. A pure tone is defined to exist if the one-third (1/3)
octave band sound pressure level in the band, including the tone, exceeds the
arithmetic average of the sound pressure levels of the two (2) contiguous one
third (1/3) octave bands by five (5) dBA for center frequencies of five hundred
(500) Hz and above, by eight (8) dBA for center frequencies between one hundred
and sixty (160) Hz and four hundred (400) Hz, or by fifteen (15) dBA for center
frequencies less than or equal to one hundred and twenty-five (125) Hz.
(1) These standards may be varied by the
Planning Board but never to a standard less than the DEC recommended standards
in effect at the time of review.
C. The Ambient Sound Level shall be expressed in terms of the highest
whole number Sound Level in dBA. Ambient Sound Levels shall be measured at the
exterior of potentially affected existing residences, schools, hospitals,
churches and public libraries when considering specific receptors. Ambient Sound Level measurements shall
employ all practical means of reducing or compensating for the effect of wind
generated noise artifacts at the microphone so as to measure the actual sound
level most accurately. Ambient Sound Level measurements should be performed
when wind velocities aloft are sufficient to allow wind turbine operation and
should report Ambient Sound Levels for wind speeds aloft corresponding to
turbine cut-in as well as the wind speed aloft corresponding to production of
the greatest noise.
D. Any noise level falling between two whole decibels shall be the
lower of the two.
E. The following minimum standards shall apply to any tower, turbine,
windmill, building housing mechanical components or electrical substation that
is part of any Wind Energy Conversion System or Facility, unless specifically
waived or varied by the Planning Board as part of a permit. The following minimum standards do not
apply to the transmission or collection system components of such WECS or
Facility, except for electrical substations. Each WECS shall be setback from Site boundaries, measured
from the center of the applicable component part of the WECS:
1. Twelve
hundred (1,200) feet from the nearest Site boundary property line.
2. Twelve
hundred (1,200) feet from the right of way of State Route 20 or County Route
54.
3. Five
hundred (500) feet from the right of way of all other public roads.
4. Two
thousand (2,000) feet from the nearest off-site residence, school or church, measured
from the exterior of such residence, whether or not said residence is located
in the Town of Cherry Valley.
5. One
and a half times the Total Height of the WECS from any non- residential
structure (other than a school or church) or any above-ground utilities, unless
waived by the utility companies.
¤16 Noise and Setback Easements
A. In the event a Wind Energy Facility does not meet a setback
requirement or exceeds noise or other criteria established in this Local Law as
it existed at the time the Wind Energy Permit is granted, a waiver may be
granted from such requirement by the Planning Board in the following
circumstances:
1. Written consent from the affected property owners has been obtained
stating that they are aware of the Wind Energy Facility and the noise and/or
setback limitations imposed by this Local Law, and that consent is granted to
(1) allow noise levels to exceed the maximum limits otherwise allowed or (2)
setbacks less than required; and
2. In order to advise all subsequent owners of the burdened property,
the consent, in the form required for an easement, has been recorded in the
County Clerk's Office describing the benefited and burdened properties. Such
easements shall be permanent and shall state that they may not be revoked
without the consent of the Town Board, which consent shall be granted upon
either the completion of the decommissioning of the benefited WECS in
accordance with this Article, or the acquisition of the burdened parcel by the
owner of the benefited parcel or the WECS.
B. Waivers granted under this Section differ from waiver requests under
Article V of this Local Law in that no Article V waiver is required if a waiver
is given under this Section, and a Article V waiver must be sought rather than
a waiver under this Section if the adjoining property owner will not grant an
easement pursuant to this Section.
¤ 17 Issuance of Wind Energy Permits
A. Upon completion of the review process, the Town of Cherry Valley
Planning Board shall, upon consideration of the standards in this Local Law and
the record of the SEQRA review, issue a written decision with the reasons for
approval, conditions of approval or disapproval fully stated.
B. If
approved, the Planning Board will direct the Town Clerk to issue a Wind Energy
Permit upon satisfaction of all conditions for said Permit, and direct the
building inspector to issue a building permit, upon compliance with the Uniform
Fire Prevention and Building Code and the other pre-construction conditions of
this Local Law.
C. The decision of the Planning Board shall be filed within five days
in the office of the Town Clerk and a copy mailed to the applicant by first
class mail.
D. If any approved Wind Energy Facility is not
substantially commenced within one year of issuance of the Wind Energy Permit,
the Wind Energy Permit shall expire.
¤18 Abatement
A. If any WECS remains non-functional or inoperative
for a continuous period of 1 year, the applicant agrees that, without any
further action by the Planning Board, the applicant shall de-commission and remove
said system at its own expense. Removal of the system shall include at a
minimum the removal of the entire above ground structure, including
transmission equipment and fencing, from the property. This provision
shall not apply if the applicant demonstrates to the Planning Board 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's limit the
ability to order a remedial action plan after public hearing.
B. Non-function or lack of operation may be proven or
inferred by reports to the Public Service Commission, NYSERDA, New York
Independent System Operator, or by lack of income generation. The applicant
shall make available (subject to a non-disclosure agreement) to the Town Board
and Planning Board all reports to and from the purchaser of energy from
individual Wind Energy Conversion Systems, if requested necessary to prove the
WECS is functioning, which reports may be redacted as necessary to protect
proprietary information.
C. Decommissioning
Bond or Fund. The applicant, or successors, shall continuously maintain a
fund or bond payable to the Town of Cherry Valley, in a form approved by the
Town Attorney, for the removal of non-functional towers and appurtenant
facilities, in an amount to be determined by the Town, for the period of the
life of the facility. This fund may consist of a letter of credit from a State
of New York licensed-financial institution. All costs of the financial security
shall be borne by the applicant. All decommissioning bond requirements shall be
fully funded before a building permit is issued. The amount of the bond or security fund shall be no less
than 125% of the cost of removal of the facilities and the restoration of the
Site.
¤19 Limitations on Approvals; Easements on Town Property
A. Nothing in this Local Law 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
Local Law 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. It shall be the sole responsibility of the Facility
operator or owner to acquire any necessary wind flow or turbulence easements,
or rights to remove vegetation.
B. Pursuant to the powers granted to the Town to manage its own
property, the Town may enter into noise, setback, or wind flow easements on
such terms as the Town Board deems appropriate, as long as said agreements are
not otherwise prohibited by state or local law.
¤20 Permit Revocation
A. Testing fund. A Wind Energy Permit shall contain a
requirement that the applicant fund periodic noise testing by a qualified
independent third-party acoustical measurement consultant, which may be
required as often as bi-annually, or more frequently upon request of the Town Planning
Board in response to complaints by neighbors. The scope of the noise testing
shall be to demonstrate compliance with the terms and conditions of the Wind
Energy Permit and this Local Law and shall also include an evaluation of any
complaints received by the Town. The applicant shall have 90 days after written
notice from the Town Planning Board or Town Board, to cure any deficiency. An
extension of the 90 day period may be considered by the Town, but the total
period may not exceed 180 days.
B. Operation. A WECS shall be maintained in operational
condition at all times, subject to reasonable maintenance and repair outages.
Operational condition includes meeting all noise requirements and other permit
conditions. Should a WECS become inoperable, or should any part of the WECS be
damaged, or should a WECS violate a permit condition, the owner or operator
shall remedy the situation within 90 days after written notice from the Town Planning
Board or Town Board. The applicant shall have 90 days after written notice considered
by the issuer of the notice, to cure any deficiency. An extension of the 90 day
period may be considered by the Town Planning Board, but the total period may
not exceed 180 days.
C. Notwithstanding any other abatement provision under this Local Law,
, and consistent with ¤ 19(A) and ¤21 (B), if the WECS is not repaired or made
operational or brought into permit compliance after said notice, the Town Planning
Board may, after a public meeting at which the operator or owner shall be given
opportunity to be heard and present evidence, including a plan to come into
compliance, (I) order either remedial action within a particular timeframe, or
(2) 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 Planning
Board shall have the right to use the security posted as part of the
Decommission Plan to remove the WECS.
Article III
Wind Measurement Towers
¤21 Wind Site Assessment
As a wind site assessment is typically conducted to determine the wind
speeds and the feasibility of using particular Sites, installation of Wind
Measurement Towers, also known as anemometer ("Met") towers, shall be
permitted in accordance with this Article.
¤22 Applications for Wind Measurement Towers
An application for a Wind Measurement Tower shall
include
A. Name, address, 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, address, telephone number of the property
owner. If the property owner is not the applicant, the application shall
include a letter or other written permission signed by the property owner (i)
confirming that the property owner is familiar with the proposed applications and
(ii) authorizing the submission of the application.
C. Address of each proposed tower location, including Tax Map section,
block and lot number.
D. Proposed Development Plan and Map.
E. Decommissioning Plan, including a security bond for removal.
¤23 Standards for Wind Measurement Towers
A. The distance
between a Wind Measurement Tower and the property line shall be at least one
and a half times the Total Height of the tower. Sites can include more than one
piece of property and the requirement shall apply to the combined properties.
Exceptions for neighboring property are also allowed with the consent of those
property owners.
B. Wind Energy Permits for Wind Measurement Towers may be issued for a
period of up to two years. Permits shall be renewable upon application to the
Town Planning Board in accordance with the procedure of ¤ 1-20.
Article IV
Small Wind Energy Conversion Systems
¤24 Purpose and Intent
The purpose of this Article is to provide standards for small wind
energy conversion systems designed for home, farm, and small commercial use on
the same parcel, and that are primarily used to reduce consumption of utility
power at that location. The intent of this Article is to encourage the
development of small wind energy systems and to protect the public health,
safety, and community welfare.
¤25 Applications.
Applications for Small
WECS Wind Energy permits shall include:
A. Name, address, telephone number of the applicant. If the applicant will be represented by an
agent, the name, address and telephone number of the agent as well as an
original signature of the applicant authorizing the agent to represent the
applicant.
B. Name, address, telephone number of the property
owner. If the property owner is
not the applicant, the application shall include a letter or other written
permission signed by the property owner (i) confirming that the property owner
is familiar with the proposed applications and (ii) authorizing the submission
of the application.
C. Address of each proposed tower location, including Tax Map section,
block and lot number.
D. Evidence that the proposed tower height does not
exceed the height recommended by the manufacturer or distributor of the system.
E. A line drawing of the electrical components of the
system in sufficient detail to allow for a determination that the manner of
installation conforms to the Uniform Fire Prevention and Building Code.
F. Sufficient information demonstrating that the
system will be used primarily to reduce consumption of electricity at that
location.
G. Written evidence that the electric utility service
provider that serves the proposed Site has been informed of the applicant's
intent to install an interconnected customer-owned electricity generator,
unless the applicant does not plan, and so states so in the application, to
connect the system to the electricity grid.
H. A visual analysis of the Small WECS as installed, which may include
a computerized photographic simulation, demonstrating the visual impacts from
nearby strategic vantage points. 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.
¤26 Development Standards.
All small wind energy
systems shall comply with the following standards. Additionally, such systems
shall also comply with all the requirements established by other sections of
this Article that are not in conflict with the requirements contained in this
section.
A. A system shall be located on a lot a minimum of one acre in size,
however, this requirement can be met by multiple owners submitting a joint
application.
B. Only one small wind energy system tower per legal lot shall be
allowed, unless there are multiple applicants, in which their joint lots shall
be treated as one lot for purposes of this Article.
C. Small Wind energy systems shall be used primarily to reduce the
on-site consumption of electricity.
D. Tower heights may
be allowed as follows:
1. 65 feet or less on parcels between one and five acres.
2. 80 feet or less on parcels of five or more acres.
3. The allowed height shall be reduced if necessary to comply with all
applicable Federal Aviation Requirements, including Subpart B (commencing with
Section 77.11) of Part 77 of Title 14 of the Code of Federal Regulations
regarding installations close to airports.
E. The maximum turbine power output is limited to residential WECS size
deemed appropriate by the Planning Board.
F. The system's tower
and blades shall be painted a non-reflective, unobtrusive color that blends the
system and its components into the surrounding landscape to the greatest extent
possible and incorporate non-reflective surfaces to minimize any visual
disruption.
G. The system shall be designed and located in such a manner to
minimize adverse visual impacts from public viewing areas.
H. Exterior lighting on any structure associated with the system shall
not be allowed except that which is specifically required by the Federal
Aviation Administration.
I. All on-site electrical wires associated with the system shall be
installed underground except for "tie- ins" to a public utility
company and public utility company transmission poles, towers and lines. This
standard may be modified by the decision-maker if the project terrain is
determined to be unsuitable due to reasons of excessive grading, biological
impacts, or similar factors.
J. The system shall be operated such that no disruptive electromagnetic
interference is caused. If it has been demonstrated that a system is causing
harmful interference, the system operator shall promptly mitigate the harmful
interference or cease operation of the system.
K. At least one sign shall be posted on the tower at a height of five
feet warning of electrical shock or high voltage and harm from revolving
machinery. No brand names, logo or advertising shall be placed or painted on
the tower, rotor, generator or tail vane where it would be visible from the
ground, except that a system or tower's manufacturer's logo may be displayed on
a system generator housing in an unobtrusive manner
L. Towers shall be
constructed to provide one of the following means of access control, or other
appropriate method of access:
1. Tower-climbing apparatus located no closer than 12 feet from the
ground.
2. A locked anti-climb device installed on the tower.
3. A locked, protective fence at least six feet in height that encloses
the tower.
M. Anchor points for any guy wires for a system tower
shall be located within the property that the system is located on and not on
or across any above-ground electric transmission or distribution lines. The
point of attachment for the guy wires shall be enclosed by a fence six feet
high or sheathed in bright orange or yellow covering from three to eight feet
above the ground.
N. Construction of
on-site access roadways shall be minimized. Temporary access roads utilized for
initial installation shall be re-graded and re-vegetated to the pre-existing
natural condition after completion of installation.
O. To prevent harmful wind turbulence from existing structures, the
minimum height of the lowest part of any horizontal axis wind turbine blade
shall be at least 30 feet above the highest structure or tree within a 250 foot
radius. Modification of this standard may be made when the applicant
demonstrates that a lower height will not jeopardize the safety of the wind
turbine structure.
P. All small wind energy system tower structures shall be designed and
constructed to be in compliance with pertinent provisions of the Uniform Fire
Prevention and Building Code.
Q. All small wind energy systems shall be equipped
with manual and automatic over-speed controls. The conformance of rotor and
over-speed control design and fabrication with good engineering practices shall
be certified by the manufacture.
R. The
Planning Board may require SEQR review.
¤27 Standards
A Small Wind Energy System shall comply with the following standards:
A. Setback requirements. A Small WECS shall not be located closer to a
property line than one and one half times the Total Height of the facility
B. Noise. Except during short-term events including utility outages and
severe wind storms, a Small WECS shall be designed, installed, and operated so
that noise generated by the system shall not exceed ambient noise levels
(exclusive of the development proposed) by more than 6 dBA at the nearest
property line to any proposed Small WECS.
Sites can include more than one piece of property and the requirement shall
apply to the combined properties. In the event the ambient sound pressure level
exceeds 50 dBA, the standard shall be ambient dBA plus a maximum of 5 dBA.
Independent certification shall be provided before and after construction
demonstrating compliance with this requirement.
¤28 Abandonment of Use
A Small WECS which is not used for twelve (12) successive months shall
be deemed abandoned and shall be dismantled and removed from the property at
the expense of the property owner. Failure to abide by and faithfully comply
with this section or with any and all conditions that may be attached to the
granting of any building permit shall constitute grounds for the revocation of
the permit by the Town Planning Board.
B. All Small WECS shall be maintained in good condition and in
accordance with all requirements of this section.
Article V
Waivers
¤29 Waivers.
A. The Town Planning Board may, after a public hearing (which may be
combined with other public hearings on Wind Energy Facilities, so long as the
waiver request is detailed in the public notice), grant a waiver from the
strict application of the provisions of this Local Law if, in the opinion of
the Town Planning Board, the grant of said waiver is in the best interests of
the Town of Cherry Valley. The Planning Board may consider as reasonable
factors in evaluating the request, which may include, when applicable, the
impact of the waiver on the neighborhood, including the potential detriment to
nearby properties, the benefit to the applicant, feasible alternatives, and the
scope of the request.
B. The Planning Board may attach such conditions as it deems
appropriate to waiver approvals as it deems necessary to minimize the impact of
the waiver.
C. The Town Planning Board
has no authority to waive any provision dealing with fiscal responsibility or
financial offsets that effect the budgetary responsibilities of the Town
Board. Application for this type
of waiver must be directed to the Town Board.
Article VI
Miscellaneous
¤30 Fees
A. Non-refundable Application Fees:
1. WECS Wind Energy Permit
2. Wind Measurement Towers Wind Energy Permit
3. Small WECS Wind Energy Permit
4. Wind Measurement Tower Wind Energy Renewal Permit,
shall all be set by resolution of the Town Board from
time to time.
B. Building Permits. The Town believes the review of building and
electrical permits for Wind Energy Facilities requires specific expertise for
those facilities. Accordingly, the permit fees for such facilities shall be $25
per permit request for administrative costs, plus the amount charged to the
Town by the outside consultant and/or attorney hired by the Town of Cherry
Valley to review the plans and inspect the work. In the alternative, the Town
and the applicant may enter into an agreement for an inspection and/or
certification procedure for these unique facilities. In such case, the Town and
the applicant will agree to a fee arrangement and escrow agreement to pay for
the costs of the review of the plans, certifications or conduct inspections as
agreed by the parties.
C. Nothing in this Local Law 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.
¤31 Tax Exemption
The Town hereby reserves the right to opt out of the Tax Exemption
provisions of Real Property Tax Law ¤487, pursuant to the authority granted by
paragraph 8 of that law, or by any other provision of law.
¤32 Inspections
A. The owner of each Wind Energy Facility shall submit a bi-annual
inspection report to the Town Board or its designee on the structural and
operational integrity of the facility.
Such report shall be prepared by or under the direction of a
Professional Engineer licensed by the State of New York. If such report recommends that repairs
or maintenance measures be undertaken, the owner shall provide with such report
a written schedule for undertaking such repairs or maintenance.
B. Wind Energy Facilities shall not begin operation until all approvals
required under this law are obtained and all required certifications are
provided.
C. Following the issuance of any approval required under this local
law, the Town Board or its designee shall have the right to enter onto the Site
upon which a Wind Energy Facility has been placed, at reasonable times in order
to inspect such facility and its compliance with this Local Law.
D. After undertaking such inspection, the Town Board or its designated
representative shall provide notice of any non-compliance with the terms of
this Local Law or the conditions of approval of any permit issued hereunder, and
shall provide the owner or applicant with a reasonable time frame to cure such
violation, such timeframe to be determined based upon the seriousness of the
violation, its impact upon public safety, and the impact of the violation upon
residents of the Town.
¤33 Construction Related Damage
The owner of every Wind Energy Facility constructed pursuant to this
law shall, to the extent practicable, repair or replace all real or personal
property, public or private, damaged during the construction of such facility.
¤34 Enforcement; Penalties and remedies for violations.
A. The Town Board and/or Planning Board shall appoint such Town staff
or outside consultants as it sees fit to enforce and implement this Local Law.
B. Any person owning, controlling or managing any building, structure
or land who shall undertake a Wind Energy Facility in violation of this Local
Law or in noncompliance with the terms and conditions of any permit issued
pursuant to this Local Law, or any order of the enforcement officer, and any
person who shall assist in so doing, shall be guilty of an offense and subject
to a fine of not more than $350 or to imprisonment for a period of not more
than six months, or subject to both such fine and imprisonment. Every such
person shall be deemed guilty of a separate offense for each week such
violation shall continue. The Town may institute a civil proceeding to collect
civil penalties in the amount of $350 for each violation and each week said
violation continues shall be deemed a separate violation.
C. In case of any violation or threatened violation of any of the
provisions of this local law, including the terms and conditions imposed by any
permit issued pursuant to this local law, in addition to other remedies and
penalties herein provided, the Town may institute any appropriate action or
proceeding to prevent such unlawful erection, structural alteration,
reconstruction, moving and/or use, and to restrain, correct or abate such
violation, to prevent the illegal act.
¤35 Fiscal Responsibility
A. The Planning Board may, at its discretion, request the most recent
annual audited financial report of the permittee prepared by a Certified Public
Accountant, licensed by the State of New York, during the review process. If such report does not exist, the
Planning Board may, in its sole discretion, require a suitable alternative to
demonstrate the financial responsibility of the applicant and its ability to
comply with the requirements of this Local Law. All financial documents and reports shall be delivered to
the Town Board before final recommendations of Planning Board.
B. No transfer of any Wind Energy Facility or permit, or sale of the
entity owning such facility, including the sale of more than 30% of the stock
of such entity (not counting sale of shares on a public exchange) shall occur
without prior approval of the Town of Cherry Valley, which approval shall occur
upon demonstration of fiscal responsibility by such entity and written
acceptance by such entity of the obligations of the permittee under this Local
Law and the terms of the permit.
Any such transfer shall not eliminate the liability of any entity for
any act occurring during its ownership or status as permittee.
¤36 Certification.
Prior to operation of any approved and constructed Wind Energy
Conversion Facility, the applicant must provide a certification that the
project complies with applicable codes, industry practices and conditions of
approval (where applicable).
SECTION 2: Severability
Should any provision of
this Local Law be declared by the courts to be unconstitutional or invalid,
such decision shall not affect the validity of this Local Law as a whole or any
part thereof other than the part so decided to be unconstitutional or invalid.
SECTION 3:
Effective Date
This Local Law shall be effective upon its filing with the Secretary of
State in accordance with the Municipal Home Rule Law.