Wind Energy Conversion Systems Law 

[adopted August 11, 2012; excerpts:]

It is the purpose of this law to provide the regulatory structure that ensures the protection of the Town of Lyme residents and minimizes the impacts on the Town’s environment in the siting and operation of Wind Energy Conversion Systems. Notably, this law will reduce, minimize, or eliminate negative impacts on the unique resources within the Town of Lyme including, among many, the Seaway Trail, Lake Ontario and its contiguous waterways, and the Chaumont Barrens.

Findings

The Town Board of the Town of Lyme finds and declares the following:

1. Wind is a renewable, nonpolluting energy resource.

2. Regulation of the siting and installation of wind turbines is essential for protecting the health, safety, and welfare of the general public and the community at large.

3. WECS represent significant potential aesthetic impacts because of their large size, noise, lighting, shadow flicker effects, and other related issues.

4. If not effectively regulated, the siting and construction of WECS and their associated infrastructure (e.g., access roads) can cause undesirable and unnecessary impacts to farmland including, but not limited to, excessive removal of topsoil with erosion and sediment damage, and soil compaction.

5. WECS present a risk to birds, bats, and other creature and must be properly sited to minimize impacts.

6. WECS can adversely affect the value of surrounding, non-participating properties. For example, a study examining the effect of wind turbines on neighboring property values was performed by Clarkson University. Property transactions that occurred over a nine year period within Clinton, Lewis, and Franklin counties were analyzed. Findings varied from county to county. In some areas, it was found that values could be depressed by as much as 17% by the presence of wind turbines. (Published in the journals Land Economics and The B. E. Journal of Economic Analysis and Policy)

7. WECS are a significant source of noise, including infrasound. If not properly regulated and sited, the sound from WECS can negatively impact the health of residents and eliminate the opportunity to enjoy the quiet surroundings that are characteristic of the region.

8. Construction of WECS will require planning and control to minimize regional traffic problems. Town, county, and state roads will require upgrades to handle heavy equipment and restoration to state standards following completion of construction.

9. WECS can cause electromagnetic interference issues with various types of communications. (Reference: Wind Turbine Technology: Fundamental Concepts in Wind Turbine Engineering, 2nd Edition, 2009; Editor, David A Spera; Chapter 9, “Electromagnetic Interference from Wind Turbines”; Authors, Depak L Sengupta & Thomas B A Senior)

10. The installation and operation of WECS can affect ground water supplies. The Town’s sub-structure has areas consisting of unique fractured limestone bedrock with an associated high water table. WECS must be designed and sited to prevent exposing this fragile ground water system to potential pollution.

11. Setback distances must address and mitigate operational hazards including but not limited to ice throws, blade breakage, tower collapses, and fires.

12. WECS siting will affect areas available for future land use such as locations of subdivisions.

13. Industrial wind energy projects (projects) are risky financial ventures. To limit risk to equity partners, these projects are typically organized as limited liability corporations (LLCs). The financial viability of wind project LLCs is highly dependent on state and federal government subsidies, tax breaks, and other favorable treatments. Loss or reduction of any of these benefits could cause LLC bankruptcy. Multiple owners are expected over the lifetime of a project. Cash funds from the Applicant must be in the Town’s possession to cover any and all liabilities, including funds to cover decommissioning of the facility.

14. The Town of Lyme is unique, encompassing an area offering year-round freshwater and land based recreational opportunities, a small town environment, and nature’s scenic beauty and serenity. The Town of Lyme is exceptional with 53 miles of waterfront on Lake Ontario and its inland bay, Chaumont Bay. Residences line the shorelines, experiencing extensive views of Lake Ontario, Chaumont Bay, and inland regions. The Town is relatively small in total area with generally flat topography. There are uninterrupted views to the horizon that can extend to 15 miles. Structures over the tree line (approximately 60 feet high) are visible for many miles.

15. The Town of Lyme conducted a detailed survey of Lyme’s permanent and part-time residents in 2011 to determine residents’ perspectives regarding the placement of WECS in Lyme. The majority of residents stated that WECS are inappropriate for siting within Lyme. Consequently, any law allowing the siting of WECS must reflect stringent requirements that will ensure protection of the local population and the environs.

16. In consideration of all of the above factors, there may be limited areas where WECS can be safely constructed and operated. These areas are within the Town of Lyme Wind Overlay District, the boundaries of which are defined in Section 305 of the Zoning Ordinance of the Town of Lyme.

Noise Standards for WECS

The Sound Pressure Level shall not exceed 1 and 2 as follows. Permissible Sound Pressure Levels of I and 2 shall be modified if the sound includes Prominent Tones.

1) A-weighted SOUND PRESSURE LEVEL shall be less than or equal to 30 dB from the hours of 7:00pm to 7:00am and less than or equal to 35 dB at all other times, measured at the nearest, non-participant SITE BOUNDARY.

2) C-weighted SOUND PRESSURE LEVEL shall be less than or equal to the above values plus 18 dB as measured at the nearest, non-participant SITE BOUNDARY.

Sound Measurement Methods

Sound Measurements shall use sound meters that meet the ANSI Specifications for Integrating Averaging Sound Level Meters, S 1.43-I 997 for Type I instruments and be capable of accurate readings (corrections for internal noise and microphone response permitted) at 20 dBA or lower. The measurement spectrum shall be 6 Hz to I 0 kHz. The testing method shall include the following provisions:

1) The BACKGROUND SOUND is the pre-construction Sound Pressure Level measured during the quiet time for the soundscape under evaluation (typically, between 10pm and 4am) and with test duration often continuous minutes. Several contiguous ten-minute tests may be performed in one hour to determine the statistical stability of the sound environment. Measurement periods such as at dusk or dawn when bird or insect activity is high are not acceptable measurement times. Test results are only valid when the A-weighted level exceeded 10% of the time is no more than 10 dB above the A-weighted level exceeded 90% of the time during the same period. Furthermore, the C-weighted level exceeded 10% of the time minus the C-weighted level exceeded 90% of the time is not to exceed 10 dB to be valid. The Background Sound levels documenting the pre-construction baseline conditions shall be determined when the 10 minute maximum wind speed is less than 2 m/s as measured within 5 m of the microphone and at the microphone height of 1.5 m and the atmosphere is considered stable with no vertical heat flow to cause air mixing. Sound measurement points shall be taken between inflection points of the Site survey and at locations nearest Residences. For example, a rectangular parcel contains 4 inflection points (the corners) and would result in a minimum of four measurement points, one along each side of the property. A five-sided parcel would have a minimum of five measurement points, etc. Measurement points shall be quiet locations remote from streetlights, transformers, street traffic, flowing water and other local noise sources. The background sound may be measured following construction using the above method but with the WECS turned off if, with the consent of the Town, it is determined that the Background Sound level (both A and C weighted) exceeded 90% of the time has increased by more than 3 dB from those measured under the pre-construction nighttime conditions.

2) The SOUND PRESSURE LEVEL during turbine operation shall be measured when the maximum wind speed, sampled within 5m of the microphone and at its height, is less than 4 m/s. The wind speed at the WES blade height shall be at or above the nominal rated wind speed and operating at its highest sound output mode. For purposes of enforcement, the wind speed and direction at the WECS blade height should be selected to as nearly as possible reproduce the conditions leading to the enforcement action while also restricting maximum wind speeds at the microphone to less than 4 m/s.

Setback Standards for Wind Energy Conversion Systems

Each WECS shall conform to the following setbacks:

A. One-half mile (2,640 feet) safety setback from the nearest public road or right of way.

B. One-half mile (2,640 feet) from non-participating property lines and boundaries with neighboring towns.

C. 1,600 feet from any non-WECS above-ground utilities located within the project boundary.

D. One-half mile (2,640 feet) from state-identified parks, wildlife management areas, nature preserves, and wetlands.

E. One mile (5,280 feet) from the current Village of Chaumont boundary and from the Hamlet of Three Mile Bay Lighting District boundary.

F. All WECS shall be setback a minimum of one mile (5,280 feet) from

1. Schools and churches

2. Public land where people gather (e.g., public access sites, ball fields, cemeteries)

G. One mile (5,280 feet) from NYS Route 12E, the Great Lakes Seaway Trail State Scenic Byway.

H. Two mile setbacks from Lake Ontario, Chaumont Bay, and the Chaumont River.

I. Setbacks resulting from the noise limitations set forth in this law shall apply when more restrictive than the setbacks defined in Sections A through G above.

Complaint Resolution Process

A. The offended party shall first bring their complaint to the Zoning Enforcement Officer. If the Zoning Enforcement Officer finds it to be valid, he will notify the WECS licensee of the complaint. The licensee shall have the opportunity to resolve the complaint. The time frame of resolution will be dependent on the nature of the complaint. The complaints may include, but will not be limited to: excessive noise, flicker or shadow effect, change in water quantity or quality, loss of or diminished telephone, TV, radio reception, interference with a medical device, changes in value to the residence, new or increased presence of radon gas. Should it be necessary for the validity of the complaint to be verified by an outside consultant, the Town will select and employ a firm to do testing, collect data or whatever else may be necessary to determine validity. The funds for payment of these services will come from the established escrow account.

B. The Compliant Resolution Process will apply, but not be limited to, the following categories:

1. Shadow Flicker Complaint Resolution Process:
When a written complaint is received by the Zoning Enforcement Officer from a non-participant identifying a specific turbine(s) in the wind project with a complaint of shadow flicker, the licensee shall be notified within 72 hours by the Zoning Enforcement Officer. The validity of the complaint must be verified by the Zoning Enforcement Officer using outside resources, as necessary. Upon establishment of the validity of the complaint, the licensee must mitigate the violation within 72 hours. If the licensee does not comply, the Town Board may take enforcement as established in Section 930 of this local law.

2. Setbacks Complaint Resolution Process:
When a written complaint is received by the Zoning Enforcement Officer from a non-participant in the wind development project identifying that a setback requirement is noncompliant and is determined by the Zoning Enforcement Officer to be valid, the licensee within 72 hours must correct the non-compliance violation or define a process to resolve the violation. If the licensee fails to comply, the Town Board may take enforcement as established in Section 930 of this local law.

3. Noise/Sleep Interference Complaint Resolution Process:
When a written complaint supported by a log listing the times of excessive noise is provided to the Zoning Enforcement Officer from a non-participant alleging noise disturbance from a wind turbine(s), the licensee will be informed of the complaint within 72 hours after receipt of the complaint. The validity of the complaint will be determined by the Zoning Enforcement Officer. The Town may retain an independent acoustic investigation paid for with the funds in the escrow account, as necessary. If the licensee is found to be non-compliant with the Town’s wind facilities law noise standards, the violation must be corrected. If the violation is not corrected, the Town Board may take enforcement as established in Section 930 of this local law.

If the validity of the complaint requires the services of an acoustical consultant, the procedure described below must be followed:

Violations and enforcement shall be determined by measurement without undue timing constraints. The Town will use the services of an outside contractor, as necessary, to determine the violation and associated enforcement actions. The Town’s acoustical consultant shall be a member of the National Council of Acoustical Consultants (NCAC) with a specialty in environmental noise, and the consultant’s project leader shall be a Member, Board Certified of the Institute of Noise Control Engineering of the USA. The protocol described below must generally be followed but may be modified as circumstances require by the acoustical engineer provided that modifications generally conform to the protocol.

1) Initially a preliminary study shall be conducted for a period of 30 minutes. During the 30 minute period, the equivalent level (LEQ) generated by the noise shall be measured. The measurement shall be on the complainant’s property line nearest the noise source. Measurements shall be entirely within the appropriate time period, e.g., during nighttime for nighttime enforcement, and the noise source shall operate continuously (if normal operation) during the 30 minute measurement.

2) If the noise source is intermittent or if the noise is not present at the time of the preliminary enforcement survey, a more extensive and detailed survey shall be undertaken to monitor noise levels over a longer period. The licensee shall fully cooperate with Town officials and their agents to ensure accurate measurements, including turning the source on and off as required.

3) For both types of surveys, the microphone shall be situated between 4 and 4.5 feet above the ground. Measurements shall be conducted within the general provisions of ANSI S1.13-2005, and using a meter that meets at least the Type 2 requirements of ANSI S1.4 and S1.4A-1985 (R2006). The instrument noise floor shall be at least 10 dB below the lowest level measured.

4) A calibrator shall be used as recommended by the manufacturer of the sound-level meter. The fundamental level of the calibrator and the sensitivity of the sound-level meter shall be verified annually by a laboratory using procedures traceable to the National Institute of Standards and Technology.

5) A wind screen shall be used as recommended by the sound-level meter manufacturer.

6) An anemometer shall be used and shall have a range of at least 5 to 15 miles per hour (2.2 to 6.7 meters per second) and an accuracy of at least ±2 miles per hour (±0.9 meters per second).

7) For the detailed, long-tenn study a compass shall be used to measure wind direction to at least an 8-point resolution: N, NE, E, SE, S, SW, W, NW. Measurements shall be A-weighted, or, alternatively, in one-third-octave bands. For A-weighted measurements, the uncertainty (tolerance) of measurements shall be 1 dB for a Type I meter and 2 dB for a Type 2 meter. For one-third-octave band measurements, the meter shall meet the Type 1 requirements of ANSI S12.4 and S12.4a-1985 (R2006), and the uncertainty of measurements shall be 5 dB in each and every one-third-octave band.

8) For all measurements, the surface wind speed, measured at a 1.5 m height, shall be less than 5 m/s.

9) The report shall include a sketch of the site showing distances to the structure(s), to the property line, etc., and several photographs showing the structure(s), the property, and the acoustical instrumentation. All instrumentation shall be listed by manufacturer, model, and serial number. This instrumentation listing shall also include the A-weighted and C-weighted noise floor due to weather or other natural phenomena and the one-third-octave band noise floors, if utilized, for each sound-level meter used.

4. Electromagnetic/Stray Voltage Complaint Resolution Process:
Upon receipt of a written complaint from a non-participant alleging violations associated with electromagnetic inference or stray voltage, the Zoning Enforcement Officer will provide a copy of the complaint to the licensee within 72 hours. The Zoning Enforcement Officer will determine validity of the complaint. The Town may hire, as necessary, a certified electrical engineer consultant to conduct a stray voltage investigation or electromagnetic interference investigation at the cost of the licensee, to assist in determining complaint validity. If the complaint is determined to be valid, the licensee shall resolve the problem and return the facility to full compliance with the law within a time period determined by the Zoning Enforcement Officer. If the violation is not corrected, the Town Board may take enforcement as established in Section 930 of this local law.

5. Protection of Aquifers, Ground Water and Wells:
When a written complaint is received by the Zoning Enforcement Officer from a resident regarding disturbance of an aquifer, ground water or well water, the Town will notify the licensee within 72 hours. The Zoning Enforcement Officer will determine the validity of the complaint. The Town may hire a qualified engineer at the expense of the licensee to verify validity of the complaint. If the complaint is found to be valid, the licensee must make potable water available to resident(s) immediately and establish a course of action to resolve the complaint. If the complaint is verified and the well is found to contain toxins, the licensee and/or the Town must notify the Department of Conservation (NYS DEC) of the finding. If the circumstance falls under the jurisdiction of the NYS DEC, the NYS DEC will assume responsibility for corrective actions. If the violation is not corrected, the Town Board may take enforcement as established in Section 930 of this local law.

Download original document: “Wind Energy Conversion Systems Law – Town of Lyme”