DRAFT AMENDMENT TO POTTER COUNTY SUBDIVISION AND LAND DEVELOPMENT ORDINANCE:
INDUSTRIAL WIND ENERGY FACILITIES
APPLICABILITY
A. This ordinance is intended to protect the public health, safety or welfare through restrictions regarding location, design, construction and operation of wind energy systems.
B. This ordinance is not intended to apply to stand-alone wind turbines of 175 feet or less in height constructed primarily for residential or farm use.
C. Physical modification to an existing wind energy facility shall comply with the provisions of this ordinance.
PERMIT REQUIRED
No wind turbine generator, nor wind energy facility, nor any addition of a wind turbine generator to an existing wind energy facility, shall be constructed, located or operated within Potter County unless a permit has been issued to the facility owner or operator, thereby authorizing said constructing, locating and/or operating pursuant to this ordinance.
PERMIT APPLICATION REQUIREMENTS
A. A separate application shall be filed for each wind turbine generator and/or each turbine located within a wind energy facility. Application for permits shall be made on forms provided by the Potter County Planning Commission.
B. The permit application shall be accompanied with a non-refundable fee in the amount of $1,000. In the event the Potter County Planning Commission decides to engage the assistance of an engineer, attorney or other professional consultant to assist in the evaluation of a wind facility permit application, the facility owner or operator shall reimburse the Potter County Planning Commission for all reasonable expenses thus incurred within thirty (30) days of receipt of the written statement of the Commission requesting said payment.
(1) In addition to demonstrating that the wind energy facility complies with the applicable land development requirements of local, state and federal laws, rules and regulations, as well as those which may be required elsewhere within this ordinance, the application herein required shall include the following:
(a) An affidavit or similar evidence of agreement between the property owner and the facility owner or operator demonstrating that the facility owner or operator has the permission of the property owner to apply for necessary permits for the placement, construction, operation and maintenance of the wind turbine generator and/or wind energy facility upon the owner’s property.
(b) Identification of the properties upon which the proposed wind turbine generator and/or wind energy facility will be located, and identification of the properties adjacent thereto, including reference to Potter County Deed Book and Page Numbers where same is filed of record.
(c) A statement that the applicant agrees to comply with the decommissioning requirements as may be required by the terms and provisions as herein contained or as amended and applicable at the time the project is abandoned as hereinafter defined, as well as the Potter County Planning Commission Rules and Regulations then applicable.
(e) Proof of compliance with all applicable local, state and federal statutes, rules and regulations, including but not limited to water quality, wetlands and pollution discharge regulations.
(f) A site plan depicting any lake, dam, wetlands, vernal pools, pond, public water source, well and spring within five hundred (500) feet of a wind turbine generator and its specific distance from the turbine site. The site plan shall be accompanied with or have attached thereto, verification that the applicant (facility owner or operator) has contacted the Potter County Conservation District, Pennsylvania Department of Environmental Resources and any other local, state or federal agency having jurisdiction over such matters to verify the existence and location of same.
(g) Proof that notification has been given to landowners and tenants occupying lands adjoining the lands upon which the wind turbine generator and/or wind energy facility will be located.
(h) Any other relevant studies, reports, certifications and approvals as may be reasonably required by the Potter County Planning Commission to ensure compliance with this ordinance.
(i) An in-depth environmental study from a qualified hydro geologist specifically assessing the impact the project, including both the turbine installation and road construction, will have on the groundwater beneath and in the vicinity of the proposed wind turbine site.
(j) A plan to remediate any and all adverse impacts, if any, to water wells and springs located within the project boundary and one-mile radius beyond occasioned by or in any manner related to the installation, operation, maintenance, and repair or decommissioning of the wind turbine.
(k) A statement explaining the technology utilized to minimize the impact of the project on existing surface and groundwater flows from all construction associated with the installation and operation of a wind turbine.
(l) A statement of what preventive measures will be utilized, if necessary, to assure the installation and operation of the proposed wind turbine generator and/or wind energy facility will not cause groundwater contamination in violation of applicable law and the Potter County Stormwater Management Plan.
C. Within thirty (30) days after receipt of a permit application, the Potter County Planning Commission shall determine whether the application is complete and advise the applicant of its determination.
Within sixty (60) days of a determination that the application is complete, the Potter County Planning Commission shall schedule a public hearing. The applicant shall participate in the hearing and be afforded an opportunity to present the project to the public and municipal officials. The public shall be afforded an opportunity to ask questions and to provide comment.
Within one hundred and twenty (120) days of the determination that the application is complete, or within forty five (45) days after the close of any public hearing, whichever occurs later, the Potter County Planning Commission shall make a decision whether to issue or to deny the permit.
D. Throughout the permit application process, the applicant shall promptly notify the Potter County Planning Commission of any changes to the information contained in the application. Changes that, in the opinion of the Planning Commission, do not materially alter the initial site plan or any information contained in the original submission, may be accepted without an additional public hearing.
ACCESS TO PUBLIC ROADS
Subsequent to issuance of the permit, the applicant (facility owner or operator) must provide evidence, satisfactory to the Potter County Planning Commission, of access to and from a public (state, federal or township) road and the wind turbine generators and/or wind energy facility site through proof of ownership of the land that borders the public road or through deed of easements or rights-of-way through private property.
ADDITIONAL LAND DEVELOPMENT PLAN REQUIREMENTS
A. The site development plan, in addition to meeting all other requirements of the Potter County Subdivision and Land Development Ordinance, shall contain the following:
A site plan of the wind energy system tower site, including total acreage occupied by the facility.
A detailed map of the area, showing parcel boundaries and accessory structures, including transmission lines, substations, electrical cabling from the wind turbine generators to the substations, ancillary equipment, buildings and structures (including permanent meteorological towers), associated transmission lines. This map shall also show location of access roads, layout of all structures within the geographic boundaries of any applicable setback, and a complete list of participating property owners and grantors of related leases and easements.
A narrative describing the proposed wind turbine, the approximate generating capacity of the turbine and related turbines within the industrial wind energy facility, the type and heights of the turbine to be constructed, including generating capacity, dimensions and respective manufacturers and a description of ancillary facilities.
An affidavit or similar evidence of agreement between property owner and the facility owner or operator demonstrating that the facility owner or operator has the permission of the property owner to apply for necessary permits for construction and operation of the wind turbine on that owner’s property.
Identification of the properties on which the proposed wind turbine will be located and the properties adjacent to where the wind turbine will be located.
DESIGN SAFETY CERTIFICATION
A. The design of the wind turbine shall meet minimal applicable industry standards.
B. The facility owner and/or operator shall utilize industry standards and good utility practice to minimize, to the extent practical, the impact, if any, of stray voltage and/or electromagnetic fields on adjacent property/non-participation property.
C. Each wind turbine shall be equipped with a redundant braking system. This includes both aerodynamic over speed controls (including variable pitch tip, and other similar systems) and mechanical brakes. Mechanical brakes shall be operated in a fail-safe mode. Stall regulation shall not be considered a sufficient braking system for over-speed protection.
D. All electrical components of the wind turbine shall conform to relevant and applicable local, state, national and international standards. Facility owner and/or operator shall abide by all applicable local, state and federal fire code and emergency guidelines.
BLASTING
The developer or its contractors or agents shall not utilize any blasting in connection with the construction of the wind turbine unless written notification of the intent to utilize blasting has been given to the Potter County Planning Commission along with a plan and schedule explaining said intended use, consistent with applicable laws and regulations. The plan must be approved by the Potter County Planning Commission before any blasting may occur.
VISUAL APPEARANCE/ POWER LINES
A. Wind turbine generators and/or wind energy facilities shall be of a non-obtrusive color, such as white, off-white or gray.
B. Wind turbines shall not be artificially lighted, except to the extent required by the Federal Aviation Administration or other applicable authority that regulates air safety. If lighting is required, the lighting alternatives and design chosen shall minimize light pollution and the disturbance to the surrounding views to the fullest extent possible. The use of plantings for eliminating visual impacts and light pollution shall be determined by the Potter County Planning Commission. In no instance shall the lighting be permitted to interfere with the state-designated Dark Skies Preserve at Cherry Springs State Park.
C. Any wind turbine shall not display advertising, except for reasonable identification of the turbine manufacturer, facility owner and operator.
D. On-site transmission and power lines between wind turbine generators, as well as those emanating to and from wind energy facilities, to the extent practical shall be placed underground.
E. The developer shall design the facility so as to minimize visual impacts/trespass such as glare, reflection or shadow flicker.
F. A clearly visible warning sign identifying specific voltage must be placed at the base of all pad-mounted transformers and substations.
G. Clearly visible, reflective or colored objects, such as flags, reflectors, or tape shall be placed on the anchor points of guy wires up to a height of ten feet from the ground.
SETBACKS
A. In order to protect the health, safety and/or welfare of the occupants of adjoining property:
1. Each wind turbine shall be set back from the nearest boundary line a distance of six (6) times the total turbine height, measured as the distance from the surface of the tower foundation to the highest point of the turbine rotator blade, or a distance of two thousand (2,000) feet, whichever is greater.
2. All wind turbines shall be set back from the nearest public road a distance of not less than six hundred (600) feet as measured from the right-of-way line of the nearest public road to the center of the wind turbine base.
3. All wind turbines shall be set back a minimum of two hundred (200) feet from any well, spring, intermittent or permanent stream, measured from the edge of the structure.
4. Setback regulations of any federal or state agency as they relate to natural resources and/or protected areas shall supersede the setbacks required in this ordinance; provided, however, that such agency requirements or recommendations are greater in distance than that established herein.
SOUND
A. Audible sound from a wind turbine generator and/or wind energy facility, or addition of a wind turbine generator to an existing wind energy facility, shall not exceed 5 dB above ambient sound as measured at the boundary line of any non-participating property owner. The 5 dB limit shall apply to both A-weighting (dBA) and C-weighting (dBC).
B. In the event of a complaint being filed with the Potter County Planning Commission by a property owner, alleging violation of the sound provisions of this ordinance, the Potter County Planning Commission and/or the Potter County Board of Commissioners may engage the services of a professional consultant to perform scientifically valid sound measurements. These shall include, but are not limited to, daytime and nighttime ambient sound levels (i.e., with wind generating facilities dormant), as well as sound levels measured during daytime and nighttime periods while turbines are in operation.
If it is determined the wind turbine generator and/or wind energy facility complained of is being operated inconsistent with the provisions of this Ordinance or the Rules and Regulations promulgated pursuant hereto, the expenses incurred in the performance of this study shall be reimbursed to the Planning Commission by the wind facility owner or operator. The wind facility owner or operator shall also implement remedial measures if the site is being operated inconsistent with the provisions of this Ordinance or the Rules and Regulations promulgated pursuant hereto, within 60 days of written notice of said determination by the Planning Commission.
SHADOW FLICKER
The facility owner and operator shall put forth a reasonable effort to reduce shadow flicker on an adjacent landowner’s property. The presence of such flicker on adjacent property shall not exceed 25 hours per year.
WAIVER OF REQUIREMENTS
A. Property owners affected may waive the setback requirements by signing a written waiver that sets forth the applicable setback provision and the proposed changes. The written waiver shall notify the property owners of the setback required by this ordinance, describe how the proposed wind turbine generator and/or wind facility will not be in compliance therewith, and state that consent is granted for the wind turbine generator and/or wind energy facility to be placed closer than herein permitted.
B. Further, the written waiver shall be signed by all parties for whom the waiver shall be applicable. Any such waiver by a property owner shall be recorded in the Recorder of Deeds Office of Potter County. The waiver shall specifically set forth the properties benefited and burdened, and advise all subsequent purchasers of the burdened property that the waiver of setback shall run with the land and may forever burden the subject property.
C. Adjoining property owners may waive the sound provisions by signing a written waiver. A written waiver shall notify the property owners and the county that the consent is granted for the wind turbine and/or wind energy facility not to comply with the sound limit set forth in this ordinance. Any such waiver between property owners shall be recorded in the Recorder of Deeds Office of Potter County. The waiver shall specifically set forth the properties benefited and burdened, and advise all subsequent purchasers of the burdened property that the waiver of sound limits shall run with the land and may forever burden the subject property.
D. Property owners may waive the shadow flicker provisions by signing a written waiver. A written waiver shall notify the property owners and the county that the consent is granted for the wind turbine and/or wind energy facility not to comply with the shadow flicker limit set forth in this ordinance. Any such waiver between property owners shall be recorded in the Recorder of Deeds Office of Potter County. The waiver shall specifically set forth the properties benefited and burdened, and advise all subsequent purchasers of the burdened property that the waiver of shadow flicker limits shall run with the land and may forever burden the subject property.
E. Upon application, the Potter County Planning Commission may waive the setback requirement for public road, well, spring or stream; provided, however, that good cause is demonstrated therefore by the applicant.
SIGNAL INTERFERENCE
The facility owner and/or operator shall ensure that the design and operation of any wind turbine generator and/or wind energy facility avoids degradation, disruption or loss of radio, telephone, television or similar signals, and shall mitigate any harm caused thereby.
INSURANCE
A. There shall be maintained by the facility owner and/or operator a current general liability policy with limits of at least the following:
1. One million ($1,000,000) dollars in the event of personal or bodily injury to or death of any one person;
2. Three million ($3,000,000) dollars in the event of personal or bodily injury to or death of any number of persons arising from any one occurrence; and,
3. One million ($1,000,000) dollars for any occurrence of property damage.
B. No policy of insurance shall be cancelled without first providing the Potter County Planning Commission with at least 30 days prior written notice. In the event of cancellation, facility owner and/or operator shall obtain new insurance coverage that satisfies the terms and provisions of this ordinance, without causing any lapse or delay in coverage in the amounts herein prescribed.
LICENSE TERM
A permit issued pursuant to this ordinance shall be valid for a period of fifteen (15) years. Any application for renewal shall satisfy all criteria, terms, provisions and regulations in effect at the time of renewal, including but not limited to that set forth in this ordinance and amendments hereto, if any.
DECOMMISSIONING
A. The facility owner and operator shall, at its expense, complete decommissioning of the wind turbine within twelve (12) months after its useful life, unless extended by the Planning Commission for good cause shown. The turbine will be presumed to be at the end of its useful life if it is not utilized for the production of electricity for a continuous period of six (6) months or more, provided said non-utilization for such purpose may not be attributed to a legitimate cause or reason other than abandonment of the project purpose.
B. An independent and certified professional engineer mutually acceptable to the Potter County Planning Commission and the industrial wind facility owner and operator shall be retained to estimate the total decommissioning cost. It shall be in an amount sufficient to cover the costs of decommissioning all improvements or common amenities, including but not limited to the wind turbine generator, all appurtenances, the base and footing, storm water detention and/or retention basins and other related drainage facilities, electrical apparatus, fencing, and all auxiliary buildings.
C. The facility owner or operator shall post with the Planning Commission as escrow agent, sufficient funds in an amount equal to the gross decommissioning costs. Decommissioning funds may be in the form of a performance bond, surety bond, letter of credit, corporate guarantee or other form of financial assurance as may be acceptable to the Potter County Planning Commission.
D. The Planning Commission shall release the decommission funds or the form of security
therefore authorized hereby, when the facility owner or operator has demonstrated and the Potter County Planning Commission concurs that decommissioning has been satisfactorily completed.
E. The property owner may request the Potter County Planning Commission to waive the decommissioning requirements contained in this ordinance. Should the Potter County Planning Commission determine that a waiver does not represent a threat to the public health, safety and welfare, the Planning Commission may at its discretion approve the property owner’s request to assume full ownership of, and responsibility for, the wind turbine.
REMEDIES
A. It shall be unlawful for any person, firm, corporation or other entity to violate or to fail to comply with, or take any action which is contrary to, the terms of this ordinance.
B. If the Potter County Planning Commission and/or Potter County Board of Commissioners determines that a violation of the ordinance in the constructing, locating and/or operating of a wind turbine generator or wind energy facility has occurred, the Planning Commission and/or Board of Commissioners shall provide written notice to any person, firm, corporation or other entity alleged to be in violation. If the alleged violation does not pose an immediate threat to public health or safety, the Planning Commission and/or Board of Commissioners and the parties responsible shall engage in good faith negotiations to resolve the alleged violation. Such negotiation shall be conducted within thirty (30) days of the notice of violation. If after thirty days of such negotiation the Planning Commission and/or Board of Commissioners determines that the parties have not resolved the alleged violation, the commission may institute civil enforcement proceedings or any other remedy at law or in equity, including but not limited to seeking injunctive relief, to ensure compliance with this ordinance. Any party determined to be in violation of this ordinance and enjoined or required by court order to comply therewith shall reimburse the county for all attorney fees, costs and expenses incurred in such litigation.
C. Any person found in violation of any provision of this ordinance shall, upon conviction of such summary offense, be sentenced to pay a fine not to exceed one thousand ($1,000) dollars, plus the cost of prosecution including reasonable attorney fees, and/or be sentenced to a period of imprisonment for a term not to exceed ninety (90) days. Each day that a violation of this ordinance continues shall constitute a separate and distinct offense.
SEVERABILITY
If any sentence, clause, section or part of this ordinance is for any reason found to be unconstitutional, illegal or invalid, such determination shall not affect or impair any of the remaining provisions, sentences, clauses, section or parts of this ordinance. It is hereby declared as the intent of the Potter County Board of Commissioners that this ordinance would have been adopted had such unconstitutional, illegal or invalid sentence, clause, section or part hereof not have been included herein.
“DEFINITIONS” SECTION PENDING
