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 (“SEQRA”).

§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 “fast” or “slow” 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 (“DEIS”), 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 York’s 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 Conservation’s Program Policy guidance document entitled: “Assessing and Mitigating Noise Impacts”, 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 (“NYSOPRHP”). 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 Town’s 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 conse