“The [Large Wind Energy Facility] Applicant shall assure the Town that there will be no loss in real property value within two miles of each wind turbine within their LWEF. To legally support this claim, the Applicant shall consent in writing to a Real Property Value Protection Agreement as a condition of approval for the LWEF. This Agreement shall provide assurance to non-participating real property owners (i.e. those with no turbines on their property) near the LWEF, that they have some protection from LWEF-related real property values losses.”
As Master Resource readers know, the Alliance for Wise Energy Decisions (AWED) promotes sound scientific solutions. One of our main interests is to provide communities encountering proposals for industrial wind-energy installations reliable, up-to-date information (see WiseEnergy.org) and protection.
Based on our recent work with some New York communities, a model wind ordinance law has been devised for use in other locals. We’d appreciate any constructive suggestions you have for improvement (use the comment section at the end of this post or contact me at AWED).
Here is a PDF version of the Model Wind Law. (If you’d like this in an easier-to-edit Word, please email me for that.)
To get a good idea of the power and uniqueness of this ordinance, start by reading Section 5: Findings. Make sure to also read the Notes at the end [which are not part of the law].
Our objective was to produce a very high quality wind law, i.e. an ordinance with regulations that:
a) reasonably and effectively protect the health, safety and well-being of local citizens and visitors,
b) reasonably and effectively safeguard the local economy,
c) reasonably and effectively preserve local ecosystems,
d) are understandable to legislators and citizens,
e) will result in objective and meaningful tests and reports,
f) are relatively easy to implement,
g) will not be any expense to taxpayers,
h) are scientifically sound, and
i) can likely withstand a legal challenge (by the developer, etc.).
As good ideas come in we’ll update the online PDF version, so please periodically check it.
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Town Name
Draft of Local Law No. 1 of the year 2016 {revision 3/29/16}
[Note: Consequential changes from prior recent versions are in green.]
Be it enacted by the Town Board of the Town of XYZ as follows:
{Note: this sample ordinance uses New York as the state where the Town of XYZ is located. Substitute your state or province, and make applicable adjustments (e.g. in Section 4). You have permission to copy and past any parts that you and your attorney find are helpful.}
Section 1. Local Law Repealed
Local No. __ of the year ______, is hereby repealed in its entirety and replaced with this Local Law.
{Note: this would be applicable if there’s an existing wind law that this ordinance will replace.}
Section 2. Title
This Local Law may be cited as the “Wind Energy Facilities” law of the Town of XYZ, STATE.
Section 3. Purpose
The Town Board of the Town of XYZ adopts this Local Law to regulate the placement of industrial wind energy facilities to protect the public health, safety and welfare of its citizens and visitors; to minimize the adverse impacts on the Town’s character and economy; to minimize negative impacts on the unique scenic resources including, but not limited to, the SLR River shoreline corridor and adjacent lands and waterways; to minimize the adverse impacts on property values of nearby citizens; to minimize the adverse impacts on the Town’s farming communities; and to minimize the adverse impacts on the Town’s environment and ecosystems.
Section 4. Authority
The Town Board of the Town of XYZ enacts this Local Law under the authority granted by
4-1 Article IX of the New York State Constitution, §2(c)(6) and (10).
4-2 New York Statute of Local Governments, § 10(1), (6), and (7).
4-3 New York Municipal Home Rule Law, §10(1)(i) and (ii) and §10(1)(a)(6), (11), (12), and (14).
4-4 The supersession authority of New York Municipal Home Rule Law, §10(2)(d)(3), specifically as it relates to determining which body shall have power to grant variances under this Local Law, 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 Local Law differ from the authority granted to the Town by Article 16 of the Town Law.
4-5 New York Town Law, Article 16 (Zoning).
4-6 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), (16) (Unsafe buildings), (19) (Trespass), and (25) (Building lines).
4-7 New York Town Law §64(17-a) (preservation of historic places/protection of aesthetic interests), (23) (General powers).
4-8 New York Real Property Tax Law §487.
Section 5. Findings
The Town Board of the Town of XYZ finds and declares that:
5-1 The New York State Constitution’s “Bill of Rights for Local Governments” (Article IX, ß2-10) legally obligates local legislators to protect the health, safety and well-being of their community.
5-2 While wind energy is a semi-renewable energy resource of electricity generation, and under some circumstances it may reduce the use of nonrenewable energy sources, the possible benefits must be balanced against potential negative impacts to local citizens, local economy, and local ecosystems.
5-3 Regulation of the siting and installation of wind turbines is necessary for protecting the health, safety, and well-being of neighboring property owners, the general public, the local economy and local ecosystems.
5-4 Several independent legal and economic experts have concluded that there can be serious legal and economic downsides for landowners entering into the secretive, complicated and one-sided lease/easement contracts written by industrial wind energy developers.
5-5 Large-scale multiple-turbine industrial wind energy facilities represent significant potential negative aesthetic impacts because of their enormous size, lighting, and shadow flicker effects.
5-6 Installation of large-scale multiple-turbine industrial wind energy facilities can create drainage problems through erosion and lack of sediment control of facility and access road sites, and harm farmlands through construction methods utilized.
5-7 There is significant evidence from independent appraisers that industrial wind energy facilities will likely reduce property values of nearby property owners. Said proper value reductions will reduce the tax base for the Town, resulting in a tax rate increase on all Town property owners.
5-8 Large scale industrial wind energy facilities may be significant sources of noise and vibrations, which can have negative health impacts on residents in neighboring properties, particularly in areas with low ambient noise levels. According to the various medical experts (e.g. the World Health Organization), the infrasound component of such noise can be the most problematic.
5-9 Construction of industrial wind energy facilities can create traffic problems and damage local roads.
5-10 In certain circumstances, Industrial Wind Energy Facilities can cause electromagnetic interference with some types of communications.
5-11 Independent experts have concluded that the bats killed by industrial wind energy turbines can result in an appreciable reduction in agricultural yields. These experts have estimated that this could adversely affect our local community in an unquantifiable amount, possibly exceeding a million dollars a year.
5-12 Independent experts have concluded that turbines kill large quantities of birds. Especially troublesome are the raptors that are destroyed. The Town of XYZ is located on a major migration route for many species of birds, and is habitat for many species, both year round and seasonal.
5-13 Independent experts have concluded that industrial turbines can have a variety of adverse health effects on other wildlife, livestock and domestic animals.
5-14 The Town of XYZ has many scenic view sheds, and some of these would be negatively impacted by Industrial Wind Energy Facilities.
5-15 Since the enactment of Town of XYZ Local Law No. 1 of 2007, the Town of XYZ has adopted a revised Local Waterfront Revitalization Plan which includes the establishment of a Scenic Overlay District in recognition of the importance of the scenic assets of the St. Lawrence River to the community.
5-16 Significant public and private dollars have been invested in infrastructure within the Town of XYZ to enhance the region’s principal industry, tourism, which is based in large part on the scenic beauty of the region.
5-17 Several studies by independent experts have concluded that industrial wind energy can have a negative economic impact on tourism sensitive communities. The Town of XYZ is substantially dependent on the tourism business, and this is partly based on its pastoral, rural and natural scenery. An industrial wind energy complex is in conflict with the culture and character of this community.
5 -18 Due to the unusually broad array of potentially problematic Findings (and lack of scientifically proven net benefits), the Precautionary Principle dictates that the Town be particularly conservative and cautionary in its assessment of industrial wind energy.
5-19 The Town of XYZ has regulated wind energy facilities for the past decade through local laws. This Local Law represents an updating of said regulations.
5-20 In formulation of this Local Law, many studies have been reviewed — and those written by independent experts were given the greatest consideration. (See WiseEnergy.org for a good sample of such reports.) Many wind energy ordinances through the US have been analyzed. Experiences of other communities with industrial wind energy have been studied. An ad hoc Committee was appointed to make recommendations regarding industrial wind energy regulation. Some of its conclusions were incorporated into this Local Law.
Section 6. Permit Required
Large and small wind energy facilities (as well as meteorological measuring devices) shall be permitted within the Town of XYZ only in an Agricultural District designated as such (pursuant to the New York Agriculture and Markets Law). Such facilities shall be subject to the requirements and permitting process of this Local Law, in addition to other applicable local, state and federal laws.
This Local Law shall apply to all areas of the Town of XYZ.
Section 7. Definitions
As used in this chapter, the following terms shall have the meanings indicated. Words not defined in this Local Law shall be given their ordinary and common meaning:
Accessory building: A building that is located on the Wind Energy Facility (WEF) property.
Accessory Equipment: Any equipment serving or being used in conjunction with a LWEF. The term includes utility or transmission equipment, power supplies, generators, batteries, equipment buildings, and storage sheds, shelters or similar structures.
Administrative Approval: Approval that the Planning Board is authorized to grant after Administrative Review.
Article 10: A NYS law (Chapter 388 of the Laws of 2011) that authorizes an Article 10 Board to review the “reasonableness” of any local wind ordinances. [This was originally called Article X.]
Blade Glint: The intermittent reflection of the sun off the surface of the blades of one or more wind turbines.
Board of Appeals: The Board of Appeals is comprised of the members of the Zoning Board of Appeals that is established by the Local Zoning Law.
Completed Application: An application that contains all information and/or data required and requested, to enable an informed decision to be made with respect to that application.
Conservation Area: Such areas include natural areas protected by law, such as wetlands that meet the definition in the Clean Water Act 33 USC Sec. 1251 et seq.; shoreland areas; water bodies; riparian buffers; populations of endangered or threatened species, or habitat for such species; archaeological sites, cemeteries, and burial grounds; important historic sites; other significant natural features and scenic viewsheds; and existing trails or corridors that connect the tract to neighboring areas.
dBA: A-weighted decibels, abbreviated dBA [or dBa, or dB(a)], is an expression of the relative loudness of sounds in air as perceived by the human ear. With A-weighting, the decibel levels of low frequencies are reduced compared to the middle and high frequencies (A-weighted energy equivalent sound level). Unless specified otherwise, in this law dBA means LAeq (energy equivalent sound level).
Electrical Transmission Tower: An electrical transmission structure used to support high voltage overhead power lines. The term shall not include any utility pole.
FAA: The Federal Aviation Administration or successor agency.
Infrasound: Low frequency sounds that are not ordinarily hearable by humans. All sounds are energy waves, so humans can be affected by infrasound, despite not being aware of its presence. The World Health Organization has concluded that health effects due to low frequency components in noise are estimated to be more severe than for community noise in general.
LWEF (Large Wind Energy Facility): A WEF that has a rated capacity of 100 kW or more.
Maintenance: The cleaning, painting, repair, or replacement of defective parts (including plumbing, electrical, or mechanical work that might require a building permit) in a manner that does not alter the basic design or composition of a structure, such as a wind turbine.
Meteorological Measuring Device: An instrument, such as an anemometer, that measures wind speed. This is often on a tower, typically located at hub-height of the anticipated turbines.
Modification or Modify: Any change, addition, removal, swap-out, exchange, and the like that does not qualify as “Repairs and/or Maintenance” as defined herein is a Modification. Also included is any change, addition, swap-out, exchange, and the like that requires or results in changes and/or upgrades to the structural integrity of a turbine.
Necessary: What is technologically required for the equipment to function as designed by the manufacturer. Anything less will restrict or inhibit the provision of service as intended and described in the Application. Necessary does not mean what may be desired or preferred technically.
Ordinary Maintenance: Actions that ensure that the WEF is kept in good operating condition. Ordinary Maintenance includes inspections, testing and modifications that maintain functional capacity and structural integrity. Ordinary Maintenance does not include Modifications.
Person: An individual, trustee, executor, receiver, other fiduciary, corporation, firm, partnership, association, organization, club, etc. acting as an entity.
Repair: The replacement of existing work with the same kind of material used in the existing work, not including additional work that would change the structural safety of the structure or that would affect or change required existing facilities, a vital element of an elevator, plumbing, gas piping, wiring, or heating installations, or that would be in violation of a provision of law or this Local Law. The term “Repair” or “Repairs” shall not apply to any change in construction.
Residential Zoning Districts: The RA, R-35, {fill these in} … zoning districts.
SEQRA: The New York State Environmental Quality Review Act and its implementing regulations in Title 6 of the New York Codes, Rules and Regulations, Part 617.
Shadow Flicker: The visual effect that results when the blades of an operating wind energy turbine pass between the sun and an observer and cast an observable, moving shadow on a person or property in the vicinity.
State: The State of New York.
SWEF (Small Wind Energy Facility): A WEF that has a rated capacity of less than 100 kW. Such a facility is used primarily for on-site consumption, is an accessory use, and consists of no more than one wind turbine and any associated tower, control and/or conversion electronics.
Temporary: Something intended to exist or does exist for fewer than 180 days, except for an anemometer or other meteorological measuring device that is used to test the wind conditions, which are considered temporary when it exists for two years or less.
Utility Pole: A structure owned and/or operated by a public utility, municipality, electric membership corporation, or rural electric cooperative that is designed specifically for and used to carry lines, cables, or wires for telephone, cable television, or electricity, or to provide lighting.
WEF (Wind Energy Facility): An electricity-generating facility, whose primary purpose is to supply electricity and consists of one or more wind turbines and other accessory structures and buildings, including substations, meteorological towers, electrical infrastructure, transmission lines, and other appurtenant structures and/or facilities.
Wind Energy: Electricity that is generated by converting the rotation of turbine blades into electrical current by means of an electrical generator.
Wind Farm: A marketing term for a LWEF.
Wind Turbine: A wind energy conversion system that converts wind energy into electricity through the use of a wind turbine generator. Such a system might include a nacelle, rotor, tower, pad transformer, and other appurtenant structures and/or facilities.
Wind Turbine Height: The distance measured from the lowest adjacent grade to the highest point of the structure, including any attachments, such as a lightening protection device or a turbine rotor or tip of the turbine blade when it reaches its highest elevation.
Windmill: A marketing term for a wind turbine.
Section 8. WEF Permit Requirements
8-1 General:
8-1.1 Anemometers or other meteorological towers: Temporary towers may be erected to use a meteorological measuring device to test the wind conditions on the proposed LWEF site. Such towers do not require approval of a WEF Permit. However, each such temporary pole or tower shall comply with the dimensional requirements stipulated by the Town Planning Board. A copy of a FAA determination report as a result of filing the FAA Form 7460-1, “Notice of Proposed Construction or Alteration of an Object that may Affect the Navigable Airspace,” shall be submitted prior to submission of any building permits for such a temporary tower.
The temporary pole or tower may be any approved height but it must be setback from all property lines, vacant or occupied dwelling unit, rights-of-way, and access easements by a distance that is greater than 1.5 times its height. The temporary pole or tower may not have any signs; may not be illuminated (except as required by the FAA or Department of Defense); and must be completely removed within two (2) years of the date that it is erected, unless the Planning Board grants a single one (1) year extension.
8-1.2 Wind Energy Permit Application: Before a building permit may be submitted for a WEF, a Wind Energy Permit Application must first be approved by the Planning Board.
8-2 WEF Permit Application: Throughout the permit process, the applicant shall promptly notify the Planning Board of any changes to the information contained in the permit application. Changes to the pending application that do not materially alter the initial site plan may be administratively accepted. The application for a WEF shall contain at least the following:
8-2.1 Summary: A narrative overview of the WEF, including its generating capacity.
8-2.2 Inventory: A tabulation describing the:
1. Specific number, types, and height of each wind turbine to be constructed, including their generating capacity.
2. Dimensions and respective manufacturers.
3. Appurtenant structures and/or facilities.
8-2.3 Vicinity map: Identification of the property on which the proposed WEF will be located.
8-2.4 LWEF Site Plan: A plan showing the:
8-2.5 LWEF Miscellaneous: The applicant shall provide the following information to the Planning Board:
8-2.7 LWEF Environmental Impact Study: An Environmental Impact Study (EIS) shall be conducted that includes review comments from citizens in the Town, independent experts, as well as all applicable state and federal agencies, including (as a minimum) the: B. NY Department of Health, D. US Fish and Wildlife Service, andThe EIS shall include a SEQR, and cover, at a minimum, the potential impacts on the human population (such as audible and inaudible sound, vibrations, EMFs, shadow flicker and blade glint, view sheds, blade throw, hurricane resistance, etc.), as well as the animal populations, migratory areas used by waterfowl, the location of any air routes recognized by the FAA and/or established by the Department of Defense, land, and water (including impacts on groundwater resources due to foundations, pilings, etc.), and air.
The study area shall include within the confines of the proposed LWEF, as well as the area at least two (2) miles surrounding the proposed LWEF.1. Provide the location and full description of any of the following: open drainage courses, streams, vernal pools, wetlands, and other important natural areas and site features, including, but not limited to, floodplains, deer wintering areas, Essential Wildlife Habitats, Significant Wildlife Habitats, livestock, Scenic or Special Resources, habitat of rare and endangered plants and animals, natural communities of endangered species (federal or state), unique natural areas, sand and gravel aquifers, wells, and historic and/or archaeological resources.
3. The Applicant must demonstrate, to the satisfaction of the Town, that the proposed LWEF will not have an undue adverse effect on geological stability, surface or subterranean water resources, rare, threatened, or endangered wildlife, Significant Wildlife Habitat, Essential Wildlife Habitat, Raptor Habitat, livestock, threatened or endangered plants and rare and exemplary natural plant communities and ecosystems, and will not materially increase storm water runoff.5. Pre-construction and post-construction field studies shall be conducted using the most advanced techniques available. If the pre-construction field studies demonstrate significant adverse effect to birds, bats, game animals, water resources, habitat fragmentation or other ecosystem degradation, the LWEF Applicant shall propose a remediation plan, subject to the Town’s approval. The Applicant accepts that some environmental impacts cannot be satisfactorily resolved, and that such situations will be factored into the Town’s decision regarding the net benefits of the LWEF.7. After implementation of any remediation plan, the Town will review the situation to determine its effectiveness. Should the Town find the remediation efforts inadequate, the LWEF Applicant will be given sixty (60) days from that finding, to resolve the deficiencies. In the absence of a successful resolution, the Town (at its sole discretion) shall have the right to deny the LWEF Permit.8-2.8
LWEF Air Space Impacts:B. If any portion of a LWEF will be located within five (5) miles of any civilian or military airport runway, the applicant shall provide a copy of a FAA determination as a result of filing the FAA Form 7460-1, plus demonstrate compliance with all local Town, State and Federal airport related laws.D.
The applicant shall forward this application to the Commanding Officer, *, in order to provide for review and comment concerning any possible impacts on the operations and mission of *. This application not be deemed completed until such time as said review is completed and written comments are received.E. The applicant shall provide a narrative description of all risks to:2. Military air navigation routes, military air traffic control areas, military training routes, military special-use air space, military radar or other potentially affected military operations, and shall further include documentation that addresses any potential adverse impact on military operations and readiness as identified by the Department of Defense Clearinghouse and any mitigation action agreed to the by the applicant.4. Hot Air Balloon rides available to the public within twenty (20) miles of the WEF.
8-2.9 Noise Impacts: Applicant will provide a post-construction noise monitoring plan which shall, at a minimum, require certification by the applicant that at the WEF boundaries and at proximate residences, WEF noise will not exceed 35 dBA for more than five (5) consecutive minutes during a representative range of operating and atmospheric conditions. Instrumentation to verify this shall meet ANSI or IEC Type 1 standards, and measurement procedures shall comply with relevant portions of ANSI S12.9, Part 3.
8-2.10 Visual Impacts: The applicant shall furnish a visual impact assessment to the Planning Board, which shall include:
8-3 Dimensional Requirements:
| Type of Wind Energy Facility | Minimum Wind Turbine Setback from any Property Line, Public or Private Right of Way, and/or Access Easement* | Maximum Wind Turbine Height** |
| SWEF (up to 100 kW) | 1.5 feet for each foot of height from any property line and any vacant or occupied dwelling unit on the same property. If the Planning Board determines there will be no significant impact on abutting properties or those across a stream, lake, or other body of water, no such setback is required from the waterward property line for a turbine placed in a body of water, or on a dock or pier. | 75 feet |
| LWEF (100 kW or more) | One (1) mile from facility property lines | 500 feet |
* Such minimum setbacks for a WEF shall be measured from its outermost extension (whether blade tip, nacelle/turbine housing, or tower/pole edge) that is nearest the WEF property line, public or private right-of-way, and access easement.
** Height is measured from the lowest adjacent grade to the highest point of the structure, including any attachments (such as a lightening protection device or a turbine rotor or tip of the turbine blade when it reaches its highest elevation). No portion of any wind turbine blade shall be closer than 25 feet to any portion of the ground that surrounds any WEF.
No LWEF wind turbine shall be permitted to be within five (5) miles of any operating or proposed radar facility (NEXRAD, military, commercial, etc.).
8-4 LWEF Escrow Account: The Applicant shall pay to the Town a non-refundable fee as set forth in section 8-10. The Town Board and/or Planning Board reserve the right to obtain engineering, economic impact, environmental impact, or other professional services to aid it in the review of any submitted WEF application. These costs (and other expenses incurred by the town) are reimbursable only from the Escrow Account, not the Application Fee (8-10).
8-4.1 The Applicant shall reimburse the Town for all oversight expenses incurred relating to the LWEF, from application through decommissioning.
8-4.2 These LWEF-related oversight expenses include (but are not limited to) amounts required for Building Permits, Licensing, Re-Licensing, and Decommissioning — e.g. administration, engineering, expert health and wildlife evaluations, handling complaints, legal, etc. “Legal” includes reasonable attorney fees for the Town if the Town has to sue the Applicant.
8-4.3 Any interest accruing to the Escrow Account shall stay with the Escrow Account and be considered new principle.
8-4.4 This Escrow Account will be setup by the Applicant at the time of the LWEF permit Application. This Escrow Account will be at a financial institution approved by the Town, solely in the name of the Town, to be managed by the Town Treasurer (or designee). The Applicant will make an initial deposit of $50,000. A LWEF Permit Application will not be processed until proof of deposit has been provided by the Applicant. A LWEF Permit Application determination will not be made until all costs incurred by the Town to date, have been reimbursed by the Applicant.
8-4.5 If the LWEF Application is denied, all Escrow Account funds will be returned to the Applicant, less related expenses incurred by the Town. The money will be returned, along with a statement as to these costs, within 30 days of the Application being formally denied, or receipt of a Letter of Withdrawal. Permit Fees are non-refundable.
8-4.6 This Escrow Account will be funded during the life of the LWEF by the Applicant/Owner/Operator. The Applicant/Owner/Operator will replenish any Escrow funds used by the Town within 14 days of being sent written notification (and explanation) of said withdrawals. Failure to maintain the Escrow Account at $50,000 (within 30 days of being given notice) shall be cause for revocation (or denial of renewal) of the LWEF Permit.
8-4.7 If the LWEF is decommissioned to the satisfaction of the Town, all Escrow Account funds will be returned to the Applicant/Owner/Operator, less related expenses incurred by the Town. The money will be returned, along with a statement as to these costs, within thirty (30) days of the decommissioning process being completed.
8-5 Installation and Design:
8-5.1 LWEF Power Collection: The electrical connection system from the turbines to a collection point or substation shall, to the maximum extent possible, be placed underground. The power from that collection point or substation may use overhead transmission lines, if approved by the Planning Board.
8-5.2 Road Analysis: The applicant shall agree, in writing, to the conditions of 9-3.
8-5.3 Security: The Applicant shall submit design plans to verify that the WEF is:
8-5.4 The WEF shall:
8-6 LWEF Real Property Value Protection Plan:
The LWEF Applicant shall assure the Town that there will be no loss in real property value within two miles of each wind turbine within their LWEF. To legally support this claim, the Applicant shall consent in writing to a Real Property Value Protection Agreement (“Agreement”: see 9-5) as a condition of approval for the LWEF. This Agreement shall provide assurance to non-participating real property owners (i.e. those with no turbines on their property) near the LWEF, that they have some protection from LWEF-related real property values losses.
8-7 LWEF Surety for Removal, when Decommissioned:
The applicant shall place with the Town an acceptable letter-of-credit, bond, or other form of security that is sufficient to cover the cost of removal at the end of each WEF turbine’s useful life, as detailed in the decommissioning plan. Such surety shall be at least $200,000 for each wind turbine. The Planning Board may approve a reduced surety amount that is not less than 150% of a cost estimate that is certified by an Engineer, salvage company, or other expert acceptable to the Planning Board. This calculation will not take into account any estimated salvage values.
The surety shall be used by the Town to assure the faithful performance of the terms and conditions of this law and conditions of this Local Law, as well as to serve as a removal security to prevent the taxpayers from bearing the cost of removal in the event of the cessation of use for more than 90 consecutive days. The full amount of the bond or security shall remain in full force and effect until any and all necessary site restoration is completed to restore the site to a condition comparable to what is was prior to the WEF, as determined by the Planning Board.
8-8 LWEF Liability Insurance:
8-8.1 The holder of a permit for a LWEF shall agree to secure and maintain for the duration of the permit public liability insurance, as follows:
8-8.2 The insurance policies shall be issued by an agent or representative of an insurance company licensed to do business in the State and with at least a Best’s rating of “A”.
8-8.3 The insurance policies shall contain an endorsement obligating the insurance company to furnish the Town with at least 30 days prior written notice in advance of a cancellation.
8-8.4 Renewal or replacement policies shall be delivered to the Town at least 15 days before the expiration of the insurance that such policies are to renew or replace.
8-8.5 No more than 15 days after the grant of the permit and before construction is initiated, the permit holder shall deliver to the Town a copy of each of the policies or certificates representing the insurance in the required amounts.
8-8.6 A certificate of insurance that states that it is for informational purposes only and does not confer sufficient rights upon the Town, shall not be deemed to comply with this Local Law.
8-9 LWEF Indemnification:
Any application for a LWEF within the Town shall contain an indemnification provision. The provision shall require the applicant to at all times defend, indemnify, protect, save, hold harmless, and exempt the Town, and its officers, councils, employees, committee members, attorneys, agents, and consultants from any and all penalties, damages, costs, or charges arising out of any and all claims, suits, demands, causes of action, or award of damages, whether compensatory or punitive, or expenses arising therefrom, either at law or in equity, which might arise out of, or are caused by, the placement, construction, erection, modification, location, equipment’s performance, use, operation, maintenance, repair, installation, replacement, removal, or restoration of said LWEF, excepting, however, any portion of such claims, suits, demands, causes of action or award of damages as may be attributable to the negligent or intentional acts or omissions of the Town, or its employees or agents. With respect to the penalties, damages, or charges referenced herein, reasonable attorneys’ fees, consultants’ fees, and expert witness fees are included in those costs that are recoverable by the Town.
8-10 Permit Fees. Non-refundable Permit Application Fees shall be as follows:
8-10.1 LWEF Permit: $200 per megawatt (MW) of rated maximum capacity
8-10.2 SWEF Permit: $500 per turbine
8-10.3 Wind Measurement Towers Permit: $200 per tower.
8-10.4 Wind Measurement Tower Permit renewals: $100 per tower.
8-11 Standards for Planning Board Decision:
The Planning Board may disapprove an application for a variety of reasons, including but not limited to, the following:
Section 9. WEF Post-Permit Approval Requirements
9-1 WEF Certification
Prior to operation of any approved and constructed WEF, the applicant must provide a certification that the project complies with applicable codes, industry practices and conditions of approval (where applicable).
9-2 Reservation of Authority to Inspect WEF
In order to verify that the holder of a permit for a WEF and any and all lessees, renters, and/or licensees of it, have placed and constructed such facilities in accordance with all applicable technical, safety, fire, building, and zoning codes, laws, Local Laws and regulations and other applicable requirements, the Town may inspect all facets of said permit holder’s, renter’s, lessee’s or licensee’s placement, construction, , and maintenance of such facilities, including all towers, buildings, and other structures constructed or located on the site.
9-2.1 Wind Energy Facilities shall not begin operation until all approvals required under this Local Law shall have been obtained, and all required certifications are provided.
9-2.2 Following the issuance of any approval required under this Local Law, the Planning Board or its designee shall have the right to enter onto the Site upon which a WEF has been placed, at reasonable times in order to inspect such WEF and its compliance with this Local Law.
9-3.3 After undertaking such inspection, the Planning 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 time frame to be determined based upon the seriousness of the violation, its actual and/or potential impact upon public safety, and the actual and/or potential impact of the violation upon Town residents and/or local ecosystems.
9-3 WEF Construction Related Damage
The owner of any permitted WEF shall, to the extent practicable, repair or replace all real or personal property, public or private, damaged during the WEF construction.
The applicant shall reimburse the NY DOT and/or Town (as appropriate) for any and all repairs and reconstruction to roads that are necessary due to the construction or decommissioning of the LWEF. A qualified independent third party or other qualified person, agreed to by the NY DOT and/or Town (as appropriate) and the applicant, shall be hired to pre-inspect the roadways to be used during construction and/or decommissioning. This third party shall be hired to evaluate, document, and rate the roads condition prior to construction or decommissioning of the LWEF, and again 30 days after the WEF is completed or removed.
9-4 LWEF Noise Impacts:
Independent acoustical experts have determined that 35 dBA is a reasonable proxy to protect nearby citizens from harmful infrasound. As such, no LWEF or any generators, equipment, or apparatus shall produce noise above 35 dBA LAeq for more than five (5) consecutive minutes, as measured at any WEF property line or residence. Each occurrence by individual turbines shall be a separate violation of this Local Law, and the penalties (see section 10-2) shall be cumulative.
If noise levels exceed 35 dBA for more than five (5) consecutive minutes, as measured at any WEF property line or residence, the problem turbine(s) shall be shut down within one business day of being directed to do so by the Planning Board or their designee. The problem turbine(s) shall remain shutdown until it can be demonstrated to the satisfaction of the Planning Board (or their designee) that those turbines can be operated so as to not exceed 35 dBA for more than five (5) consecutive minutes, as measured at all WEF property lines, or proximate residences.
9-5 LWEF Real Property Value Protection Plan:
The Applicant guarantees that there will be no loss in real property value within two miles of the LWEF, due to the LWEF. Any real property owner(s) included in that area who believe that their property may have been devalued due to the LWEF, may elect to exercise the following option:
9-5.1 All appraiser costs are paid by the Applicant, from the Escrow Account. 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 LWEF. 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 WEF was proposed or constructed.
9-5.2 Other Agreement Conditions:
9-6 LWEF Environmental Monitoring:
The Applicant will permit post-construction environmental studies deemed appropriate by the Town Planning Board. These will be funded by the Escrow Account. Post-construction field studies will include scientific assessments of regional nesting failures, and territory abandonment of special status species like raptors species, within two (2) miles of the LWEF.
When these assessments are being done, only researchers involved with these studies will be legally allowed to touch carcasses. LWEF personnel who move carcasses without written Town approval will be subject up to a fine per 10-2.2, as wind turbines do kill endangered and other highly protected species. During the life of the project every bird or bat carcass, or crippled bird or bat found anywhere within the LWEF must be reported to the Town by the Applicant within seven (7) days.
9-7 LWEF Decommissioning:
The Applicant guarantees that there will be no loss in real property value within two miles of the LWEF, due to the LWEF. Any real property owner(s) included in that area who believe that their property may have been devalued due to the LWEF, may elect to exercise the following option:
9-7.1 The Planning Board may grant extensions of time for repair and/or maintenance, for good cause, such as the need to back-order parts that are not currently available from the supplier or the need to repair a LWEF damaged by a storm.
9-7.2 Decommissioning shall include the complete removal of wind turbines, buildings, cabling, electrical components, roads, and any other associated facilities and/or structures, including below-ground items such as foundations and power lines.
9-7.3 Disturbed earth shall be graded and re-seeded, unless the landowner requests in writing that the access roads or other land surface areas not be restored.
Section 10. Miscellaneous
10-1 LWEF Tax Exemption
The Town reserves the right to opt out of the Tax Exemption provisions of Real Property Tax Law §487, pursuant to the authority granted by ¶ 8 of that law, or by any other provision of law. Further, the Town reserves the right to assess any and all parts of the WEF at their full current market value. That value will be determined by the documented construction cost, less any applicable depreciation.
10-2 Enforcement; Penalties and Remedies for Violations
10-2.1 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.
10-2.2 Any person owning, controlling or managing any building, structure or land related to a WEF, shall be legally and financially responsible for any and all violations of this Local Law. Such violations would include noncompliance with the terms and conditions of the permit herein, or any order of the enforcement officer. Any person who is responsible for so doing, shall be guilty of an offense and subject to a fine of not more than $1000 per incident, and/or any other penalties provided by local, state, or federal law.
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 $1000 for each violation, and each week said violation continues shall be deemed a separate violation. If multiple turbines are in violation, each turbine’s violation shall be considered a separate offense.
10-2.3 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 legal action or proceeding to prevent such unlawful erection, structural alteration, reconstruction, operation, moving and/or use, and to restrain, correct or abate such violation, to prevent the illegal act.
10-3 Fiscal Responsibility
10-3.1 The Planning Board may, at its discretion, request the most recent annual audited financial report of the permittee prepared by a duly licensed Certified Public Accountant, 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.
10-3.2 No transfer of any LWEF or permit, or sale of the entity owning such LWEF, 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 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.
Section 11. Applicability
The requirements of this Local Law shall apply to all WEFs proposed, operated, modified or constructed after the effective date of this Local Law.
Section 12. 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.
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— See Notes & Objectives on following pages —
— MODEL WIND LAW NOTES —
1: New York (like almost every other state) has a state constitutional mandate that local legislators “protect the health, safety and well-being” of their community. That is the fundamental premise that this entire law is based on. Every aspect of this law is examined under that light. [Note: we are aware of no state where legislators are obligated to promote the interests of speculators.]
2: The “Findings” (Section 5) are particularly important, as they set the stage for the subsequent rules and regulations. The Findings here make it clear that there are numerous potential serious downsides to industrial wind energy. These need to be carefully considered before an accurate determination of net benefits can be made.
3: After considerable research it has been determined that an effective regulatory industrial wind law addresses six key protections: a) setbacks, b) noise, c) property value, d) environmental, e) escrow and f) decommissioning.
4: “Mitigate” has become a legal weasel word that ranges from fix (a problem), to make it better. But how much better is sufficient: 1%? We have substituted “remediate” to make it clearer that the objective is to remedy the problems caused by wind energy.
5: Although it is a rarity in other wind laws we’ve seen, we strongly believe that a net economic assessment (¶ 8-2.6) is an important, and justifiable requirement.
6: In most wind laws the developer is allowed to hire experts to conduct various environmental tests. If the developer contracts a shill, the resultant tests are likely useless. This law (¶ 8-2.7) provides a simple solution: give the money to the Town that the developer was going to use to hire people. The Town then hires independent experts. The cost is the same to the developer, so they have no legitimate complaint against this arrangement — but the results will likely be radically better.
7: We also strongly believe that taxpayers should not be subsidizing the costs incurred by the Town, in behalf of these entrepreneurs for these lucrative projects. As such there is a strong (and very justifiable) Escrow Account that is required (¶ 8-4).
8: For technical details on most aspects of this Model Law (and supporting studies), please see WiseEnergy.org (especially the “Legal Matters” page).
9: Although we have combined SWEF and LWEF into one law, some people prefer to separate the two. We did this as one of our basic objectives is KISS, but it’s your call.
10: Always consult with a competent attorney when involved in any legal matter.
— See Objectives on the next page —
— MODEL WIND LAW OBJECTIVES —
The objective in writing this law was to produce a very high quality wind law — i.e. an ordinance with rules and regulations that:
a) reasonably and effectively protect the health, safety and well-being of local citizens and visitors,
b) reasonably and effectively safeguard the local economy,
c) reasonably and effectively preserve local ecosystems,
d) are understandable to legislators and citizens (KISS),
e) will result in objective and meaningful tests and reports,
f) are relatively easy to implement,
g) will not be any expense to taxpayers,
h) are scientifically sound, and
i) can likely withstand a legal challenge (by the developer, etc.).