§ 240-44.1. Land-based wind energy conversion facilities (WECFs)., Article V. Accessory Uses, Chapter 240. Zoning, Part I. General Ordinances, Code of Ordinances, Barnstable

Purpose and intent. It is the express purpose of this section to accommodate distributed wind energy conversion facilities in appropriate land-based locations, while minimizing any adverse visual, safety and environmental impacts of the facilities. The section enables the review of wind energy conversion facilities by the Town's special permit granting authority, clarifying the criteria for siting such a facility. This section is intended to be used in conjunction with other regulations adopted by the Town, including historic district regulations, site plan review and other local ordinances designed to encourage appropriate land use and environmental protection. Further, it is the express intent of this section that any special permit granted hereunder run with the land and that any subsequent owner of said land be bound by the terms and conditions of said special permit.

Definitions. As used in this section, the following terms shall have the meanings indicated:

CLEAR AREA: The distance from the lowest point of the blade tip to the ground.

HEIGHT: Height is measured from the grade at the base of the tower to the top of the fixed tower (moveable blades are not included).

LAND-BASED: Wholly located on upland including any guy wires as may be required.

SPECIAL PERMIT GRANTING AUTHORITY (SPGA): Shall be the Planning Board, for this section.

WIND ENERGY CONVERSION FACILITY (WECF): All equipment, machinery and structures utilized in connection with the conversion of wind to electricity. This includes, but is not limited to, all transmission, storage, collection and supply equipment, substations, transformers, site access, service roads and machinery associated with the use. A wind energy conversion facility may consist of one or more wind turbines.

WIND-MONITORING OR METEOROLOGICAL (TEST OR MET) TOWERS: Tower used for supporting anemometer, wind vane and other equipment to assess the wind resource at a predetermined height above the ground.

WIND TURBINE: A device that converts kinetic energy of the wind into rotational energy to turn an electrical generator shaft.

District regulations.

(1)

Use regulations.

(a)

All wind energy conversion facilities or wind-monitoring towers shall require a building permit and may be permitted only as an accessory use to permitted uses in all zoning districts.

(b)

Wind energy conversion facility and wind-monitoring or meteorological towers. The construction of any wind energy conversion facility or wind-monitoring/meteorological tower shall be permitted in all zoning districts, subject to issuance of a special permit and provided the proposed use complies with all dimensional and special permit regulations set forth in § 240-125C (unless waived by the SPGA). Any subsequent change or modification of wind energy equipment shall be subject to review by the Building Commissioner.

(2)

Dimensional requirements.

(a)

Type. Tilt-up towers, fixed-guyed towers, freestanding towers or other designs may be considered for approval by the SPGA. Towers may not be attached to any residence or habitable structures.

(b)

Setback. The base of any WECF shall be set back from any property line or road layout line by not less than 120% of the proposed height of the tower if abutting residentially zoned properties and 80% of the proposed height of the tower, if abutting nonresidentially zoned properties. Guy wires or any WECF related construction not wholly below grade, as may be required by the proposed design, shall be set back at least 20 feet from property lines, and 30 feet from road layout lines if located on, or adjacent to, residentially zoned property. If located on nonresidentially zoned property and not abutting residentially zoned property, guy wire setbacks may be reduced to five feet. Other setbacks shall conform to the yard setbacks of the zone in which the subject property is located. The SPGA may allow the setback to be reduced as part of the special permit process if the project proponent can demonstrate that additional height is needed and that the additional benefits of the higher tower outweigh any increased adverse impacts.

Special permit regulations. The SPGA shall grant a special permit only if it finds that the proposal complies with the provisions of this Zoning Ordinance (unless waived) and is consistent with the applicable criteria for granting special permits.

(1)

General. Proposed wind energy conversion facilities shall be consistent with all applicable local, state and federal requirements, including, but not limited to, all applicable electrical, construction, noise, safety, environmental and communications requirements.

(a)

Demonstrated utility. The proponent shall demonstrate that the proposed WECF efficiently generates electrical power.

(b)

Maintenance. A written maintenance plan shall be submitted with the application for a special permit for review and approval by the SPGA and shall be made a condition of said special permit.

(2)

Design standards.

(a)

Visual impact. The proponent shall demonstrate through project siting and proposed mitigation that the wind energy conversion facility minimizes any impact on the visual character of surrounding neighborhoods and the community. This may include, but not be limited to, information regarding site selection, turbine design, buffering, lighting. All electrical conduits shall be underground.

(b)

Color. Wind energy conversion facilities shall be painted nonreflective muted colors that blend with the sky, without graphics or other decoration.

(c)

Equipment shelters. All equipment necessary for monitoring and operation of the wind energy conversion facilities should preferably be contained within the turbine tower. If this is infeasible, ancillary equipment may be located outside the tower, provided it is contained either within an underground vault, or enclosed within a separate structure or behind a year-round landscape or vegetated buffer.

(d)

Lighting and signage.

[1]

Wind turbines shall be lighted only if required by the Federal Aviation Administration (FAA). The proponent shall provide a copy of the FAA's determination to establish the required markings and/or lights for the structure.

[2]

Lighting of equipment structures and any other facilities on site (except lighting required by the FAA) shall be shielded from abutting properties.

[3]

No signage allowed.

(e)

Guy wires. Guy wires as may be utilized in the construction of the tower shall be left totally unadorned. Nothing shall be hung from or attached to said wires. To prevent unintended contact by persons who may be on-site, landscaping or other approved methods may be implemented. Exception: On nonresidentially zoned properties, not abutting residential property, guy wires may be wrapped with a colored sleeve only, to prevent unintended contact. Such sleeve shall extend to a height not greater than 10 feet above grade.

(3)

Environmental standards.

(a)

Noise.

[1]

The wind energy conversion facility and associated equipment shall conform to the provisions of the Department of Environmental Protection's Division of Air Quality Noise Regulations (310 CMR 7.10). A source of sound will be considered to be violating these regulations if the source:

[a]

Increases the broadband sound level by more than 10 dB(A) above ambient; or

[b]

Produces a pure tone condition: when an octave bank center frequency sound pressure level exceeds the two adjacent center frequency sound pressure levels by three decibels or more.

[2]

"Ambient" is defined as the background A-weighted sound level that is exceeded 90% of the time measured during equipment hours. The ambient may also be established by other means with consent from DEP. The ambient noise level shall be measured at the property line when the WECF is located on a lot adjacent to residentially zoned property. Otherwise, the special permit granting authority, in consultation with the Department, shall determine whether such violations shall be measured at the property line or at the nearest inhabited residence.

[3]

Upon complaint of an abutter, ambient and maximum permitted decibel measurements shall be performed by an agent designated by the SPGA. The report shall be submitted to the SPGA for review. The fee for this service shall be paid by the complainant unless the maximum permitted decibel level has been exceeded in which case the owner of the system shall pay the fee.

[4]

If the maximum decibel readings are exceeded, the installation shall be considered a nuisance. The nuisance violation must be corrected within 90 days from notification of the violation, and if the violation cannot be corrected, the wind energy system shall be removed or relocated at the expense of the owner.

(b)

Shadowing/flicker. Wind energy conversion facilities shall be sited in a manner that does not result in significant shadowing or flicker impacts. The proponent has the burden of proving that this effect does not have significant adverse impact on neighboring or adjacent uses either through siting or mitigation.

(c)

Safety standards.

[1]

No hazardous materials or waste shall be discharged on the site of any wind energy conversion facility. If any hazardous materials or wastes are to be used on site, there shall be provisions for full containment of such materials or waste.

[2]

Climbing access to tower shall be limited by placing climbing apparatus no lower than 10 feet from the ground.

[3]

The clear area shall be no less than 10 feet.

[4]

The wind turbine shall conform to FAA safety standards, as amended.

(4)

Condemnation.

(a)

Upon a finding by the Building Commissioner that the WECF has been abandoned or has been left in disrepair or has not been maintained in accordance with the approved maintenance plan, the owner of said WECF shall be notified in writing by certified mail that the WECF shall be brought up to standard. If required repairs or maintenance are not accomplished within 45 days, the WECF shall be deemed condemned and shall be removed from the site within 90 days thereafter at the expense of the property owner. The aforementioned periods of time may be extended at the request of the owner and at the discretion of the Building Commission. "Removed from site" shall mean:

[1]

Removal of the wind turbine and tower, all machinery, equipment, equipment shelters, security barriers and all appurtenant structures from the subject property;

[2]

Proper disposal of all solid or hazardous materials and wastes from the site in accordance with local and state solid waste disposal regulations;

[3]

Restoration of the location of the wind energy conversion facility to its natural condition, except that any landscaping, grading or below-grade foundation may remain in the after condition.

(b)

If an applicant fails to remove a wind energy conversion facility in accordance with this section of this chapter, the Town shall have the authority to enter the subject property and physically remove the facility. The SPGA may require the applicant to provide a form of surety (i.e., post a bond, letter of credit or establish an escrow account or other) at the SPGA's election at the time of construction to cover costs of the removal in the event the Town must remove the facility. The amount of such surety shall be equal to 150% of the cost of compliance with this section. The applicant shall submit a fully inclusive estimate of the costs associated with removal. The amount shall include a mechanism for a cost of living adjustment every five years.