The Next Step

In a couple posts below I presented two papers that outlined how turbines could be logically and rationally prohibited by using the existing Cape Vincent comp plan and zoning language and intent.  However it could be more specific by producing a wind law that used the science and evidence of the negatives of wind energy along with our comp plan to rationally prohibit industrial wind turbines.  The proposed law below was posted before, but this would a logical next step after the summation in the papers.  This law is actually an adaptation and expansion  I did from the Meredith, NY wind law that prohibited turbines.  Meredith is the town of the movie "Wind Fall"  This is how I think CV should handle prohibiting  turbines.  It will be intereresting to see the new CV zoning law. 

Town of Cape Vincent  NY  Wind Energy

Facilities Law (Amendment)of 2012

Local Law # ??? of 2012

                       

Article ???  GENERAL PROVISIONS

Section ??? Title.

This Local Law may be cited as the “Wind Energy Facilities Law (Amendment) of 2012 of the Town of Cape Vincent, NY.

Section ??? Purpose.

The Town Board of the Town of Cape Vincent adopts this Local Law to protect and enhance the safety, health and well-being of persons and property within the Town of Cape Vincent , and to protect and enhance the town's physical and visual environment, while simultaneously promoting the effective and efficient use of the Town's wind energy resource through wind energy conversion systems (WECS). In addition this law is in accordance  with the Town’s Comprehensive Land Use Plan and the Purpose language of the general zoning laws in protecting the scenic natural resources of the Town, the small quiet rural agricultural atmosphere, and to protect the tourism and scenic assets vital to the Town’s economy.

Section ??? Authority.

The Town Board of the Town of Cape Vincent  enacts this Local Law under the authority granted by:

A. New York State Constitution, Article IX, Section 1(a), and Section 2(c)(6) and (10).

B. New York Statute of Local Governments, Section 10 (1) and (7).

C. New York Municipal Home Rule Law, Article 2, Section 10(1)[i] and [ii], Section 

     10(1) (a) [6], [11], [12], and [14], Section 10(2), and Section 10 (4) (b).

D. The supersession authority of New York Municipal Home Rule Law, Article 2,

     Section 10 (2)(d)(3), specifically as it relates to determining which body shall have power to grant variances under this Local Law, and the scope of such power, to the extent such grant of power conflicts with and/or is different than under Town Law Section 267-a and 267-b.E. New York Town Law, Article 16 (Zoning and Planning), Section 271 (planning board).F. New York Town Law §130(1)(Building Code), (3)(Electrical Code), (5)(Fire Prevention), (7)(Use of streets and highways), (7-a)(Location of Driveways), (11) (Peace, good order and safety), (15) (Promotion of public welfare), (15-a)(Excavated Lands), (16)(Unsafe buildings), (19)(Trespass), and (25)(Building lines) .

G. New York Town Law §64(17-a) (protection of aesthetic interests), (23) (General powers).

H. Town of  Cape Vincent  Comprehensive Plan,

Section ???. Definitions.

As used in this Local Law, the following terms shall have the meanings indicated:

Various definitions related to wind energy would be explained in this section.

Section ??? Findings and Supporting Evidence.

The Town Board of the Town of Cape Vincent finds and declares that:

Industrial Wind Energy  - Climate and Electric Energy Potential

A. Wind energy is promoted as a potential renewable and nonpolluting energy resource that may reduce dependence on nonrenewable energy sources and decrease the air and water pollution that results from the use of conventional energy sources.   However, the Town has done extensive research and finds no solid scientific evidence for these claims. In fact in locations in Europe like Denmark which have been using commercial wind energy extensively for decades CO2 levels have not diminished or diminished so little as to be insignificant for the cost and other wind energy impacts.

http://www.cepos.dk/fileadmin/user_upload/Arkiv/PDF/Wind_energy_-_the_case_of_Denmark.pdf

Other parts of Europe have the same experience.

http://www.dailymail.co.uk/news/article-1361316/250bn-wind-power-industry-greatest-scam-age.html

 The Bentek Study from Colorado and Texas of coal having to run inefficiently ramping up and down to back wind shows and increase in green house gases  attributed to coal in this backup process.

http://www.bentekenergy.com/files/userfiles/file/BENTEK%20-%20Executive%20Summary%20-%20How%20Less%20Became%20More_100416.pdf

The US National Academies of Sciences projects only a insignificant 1.8%  reduction in CO2 levels by 2020 from wind energy development.

http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=11935

NOTE FROM BLOG AUTHOR.  Each section under Findings would include footnotes and Web references as done above as supporting evidence from credible sources including pro wind sources that support that actual facts of wind energy.  However, to continue this documentation in this example law would be too time consuming for this post, but the evidence is available and in my and others research.

In addition traditional fossil fuel electric  plants are needed to back wind energy, many of which are not taken off line such as base load nuclear, and coal a prime polluter when wind comes online.  Neither of these traditional plants are designed to be ramped up and down or be shut down and quickly started again.

B. The Town Board has researched the effectiveness of electric production from commercial wind turbines and found the power source to be unreliable, undispatchable, and unpredictable. Wind energy can not be used as base load power which is needed 24/7.  It can not be used to follow load or provide peak power at high demand since the wind may not be available at those times.  In addition due to wind’s variability most commercial wind complexes have capacity factors in the mid 20% range or less.  This means that averaged over a year a wind complex will only use about 20% or less of its actual potential capacity, or 80% of its potential capacity will not be used. Such is the case for the Wolfe Island Wind Farm across the river from Cape Vincent, and the Maple Ridge Wind Farm on Tug Hill, NY, both large wind farms in prime wind resources.  Electric grid managers such as NYISO in NY and IESO in Ontario Canada give wind a very low (10%) capacity credit rating.  Basically meaning if called upon to provide power what is the realistic expectation that a power plant can actually provide that power on demand. In addition since only about 1% of our electric is produced using oil, the impact of wind turbines on energy independence and energy security from hostile foreign sources will be non existent. Thus the Town Board has determined that wind energy’s significant impacts far outweigh the unreliable and minuscule electric output of commercial wind energy facilities especially in areas of significant scenic beauty such as Cape Vincent and the 1000 Islands surroundings. As a result the Board has determined that there is no overriding public good in commercial wind energy as a viable electric energy source in Cape Vincent. 

C. Noise, Annoyance, and Health and other Impacts

Industrial-scale Wind Energy Facilities can cause significant problems due to the effects of shadow flicker from the rotating blades, which shadow flicker also poses a danger on public highways.   Industrial-scale Wind Energy Facilities may be significant sources of noise, which, if not properly regulated, can have an adverse impact on the health of nearby residents and on the use of nearby properties, particularly in areas of low ambient sound levels such as prevail in much of Cape Vincent.  Wind turbines emit sound particularly in the low frequency range.  Studies indicate that this sound can carry considerable unexpected distances, especially in stable atmosphere conditions particularly at night, and prolonged exposure to low frequency sound can cause a variety of health issues in humans. The World Heath Organization is recommending commercial wind turbines should be placed no closer than one and a quarter miles from a residence.  Other extensive studies by Dr. Nina Pierpont come to a similar conclusion. In addition studies are recommending that turbine noise should not exceed 5dba above the quietest background ambient sound levels as measure at a neighboring non participating property line. Extensive and conflicting sound studies have been conducted in Cape Vincent by wind developers and independent sources.  The independent sources have found the wind developer studies in error which would allow a too liberal siting of wind turbines much too close to humans to avoid annoyance and health issues.  If the cautious precautionary siting suggested above where responsibly applied the Town Board recognizes that this would preclude industrial wind energy siting in Cape Vincent.  In addition the sound issue concerning industrial wind energy is a new issue.  As a result the Board feels it is responsible and necessary to use the “Precautionary Principle” to protect the Town citizens from this unknown and evolving issue of noise and related health issues.  The Board therefore sees the sound intrusion and potential health issues as unacceptable for Cape Vincent citizens or neighboring communities that might be affected.

D. Wildlife and Habitat

Industrial-scale Wind Energy Facilities present a danger to wildlife, particularly to bats and migrating birds. This must be a very serious consideration for the Town of Cape Vincent and surroundings which are located in a major and important bird migratory flyway.  Studies at the Wolfe Island Wind Farm located only a few miles across the river in the same flyway indicate very high unexpected bird and bat mortality rates, which could classify it among the most fatal area to birds and bats in North America, rivaling or surpassing Altamont Pass in California.  An additional large wind complex on the Cape Vincent side of the river along with other potential wind developments nearby could cause catastrophic and unacceptable bird and bat mortality rates.  In addition the Indiana Bat, an endangered species, has been observed to have habitat in the Cape Vincent area.  A large wind complex could also cause major disruption and fragmentation to grassland bird habitat on the rural agricultural land of the Cape Vincent interior as well as raptor populations.

E. Aesthetic Impacts and Viewshed Considerations

Industrial-scale Wind Energy Facilities represent significant potential aesthetic impacts because of their large size, lighting, sound generation and shadow flicker effects, which are in sharp contrast with the  Cape Vincent natural landscape. Cape Vincent has several islands and other locations with viewscapes over flat water which will dramatically exaggerate the negative visual impact of 400 ft + industrial wind turbines. This must be a prime consideration since much of the recreational activity in Cape Vincent is tourism and second home residents takes place on or along the water.  A major entrance to town is by ferry boat from Wolfe Island which will be heavily impacted by the view of large wind turbines even if they are placed well inland. The Town Board recognizes that it is well documented that industrial scale wind turbines and the aircraft lighting on them can be observed in our region from as far away as 30 or more miles, and that traditional zoning practices of setbacks has little or no effect on this wide ranging visual impact.  The Board therefore recognizes that the wind development visual issue is a wide regional impact that carries well beyond the Cape Vincent zoning jurisdiction, not simply a local impact. This issue has the effect of negative visual impacts on communities which have no say in our land use decisions and as a result requires a more sensitive and responsible evaluation of the visual impact.  Our region is one widely recognized for its scenic beauty, which requires a very careful consideration of the large wide spread negative impacts of industrial wind development that basically can not be mitigated.  The Town is host also to the scenic Seaway Trail, as well as being designated a national scenic byway, due to our special scenic resources.  The Town Board believes these designations deserve special visual protections, and these special designations would be irreparably harmed by industrial wind development in the Town.

In addition the Town Board believes strongly that the language of our Comprehensive Plan, and our Zoning to which this law amendment is attached, are very protective of the Town’s unique scenic resources. The Board believes these documents and their goals of visual protection of our scenic resources would not legally and logically support any industrial scale wind development in the Town.

The Town Board recognizes that tourism is a major contributor to the Town’s economy.  The beautiful and unique scenic nature of our Town and region is a very significant factor  for the tourism and seasonal resident draw to the Town.  The Board therefore believes that industrial wind development would be significantly contrary to this factor and in fact to the Town life blood economy of tourism and seasonal resident’s investment. The Town has many scenic around water and in the interior, views which would be severely compromised by the intrusion of such large-scale industrial installations. Actual visual assessment by proposed wind developers in there SEQR studies agree that their large turbines would create a visual disturbance to the scenic landscape and would in fact dominate the landscape views.  The Board also believes this would be a radical unacceptable alteration to the tradition landscape views the Town depends on and has become accustom to for many decades. The Board also believes this visual impact can not be sufficiently mitigated.

F. Historical Considerations

The Town of Cape Vincent has a rich history connected to it’s French roots, the American Revolution, and War of 1812 with numerous historical sites around the Town. Fort Haldimand on Carleton Island dates back to the 1700’s.  The Board believes that the introduction of large town wide umnmitigatable industrial wind development would have a significant detrimental and unacceptable impact on this sites.

G. Erosion and Water Impacts

 Industrial-scale Wind Energy Facilities, can create severe drainage problems through erosion and consequent sedimentation, which can damage access roads and adjacent facilities, residences and farms. The sediment can also contaminate watershed streams, wells and increase flood potential. There is little examination of the impact of erosion sediments and dust chemicals on fish populations as the sediment reaches the lake and river.

H. Wind Turbine Operational Hazards

I. Industrial-scale turbines have been demonstrated to throw ice a significant distance from the turbines, particularly in climates, such as that of  Northern New York, which are prone to icing events. Thrown ice can cause injury to the public and to site personnel, and can damage structures and vehicles. Blade throw from defective or out of control turbines is also a significant concern. A runaway commercial turbine in Denmark smaller that ones proposed in Cape Vincent threw  blade debris over 1600ft of more than ¼ mile during a spectacular collapse. Industrial turbines can collapse due to tube or foundation failure.  Turbines can catch fire, and due to their extreme height fire depts.. Can do nothing but monitor the fire, and try to keep it from spreading on the ground.  Rescue of injured personal at turbine height is also a very specialized and risky undertaking. Both small and large out of control runaway turbines can be an extreme hazard to the public, which requires a special emergency response and protocol. The Board feels that the Cape Vincent and local fire depts. and police are very ill-equipped and not sufficiently trained to deal with these unique events and would take inordinate time and money particularly on volunteers to create an appropriate response to these turbine disaster events, and the potential risk is unacceptable.

I. Economic and Property Impacts.

Industrial-scale Wind Energy Facilities can reduce the value of nearby properties through the effects of noise, lights and shadow flicker, and of more distant properties by dramatically altering their viewshed.  The Board appointed a committee to study these impacts and other economic impacts , which was reviewed by a well respected nation property appraiser Michael MaCann who has dealt with wind development property impacts.  The committee and MaCann determined there could be significant economic impacts to properties as high as 40% reductions to residences close to turbines  The Board has determined as a result of these studies that wind development could produce significant property impacts that would be very contrary to the community goals to attract high quality residential and seasonal home development and families, and high quality businesses.  In fact just the proposals for wind development have already caused a drop in some property values and sales in Cape Vincent.  The Wolfe Island Wind Complex has in addition created economic impacts on some Cape Vincent shoreline property values.  In reverse wind development in Cape Vincent could produce similar negative impacts for residents on the south  shore of Wolfe Is. due to the unrestricted view across the water at any potential Cape Vincent industrial wind projects even in the interior of the Town..  As a result of these existing  and potential long range impacts the Board believes industrial wind development would have unacceptable significant negative economic impacts, as well  as to tourism, and  as well as a significant impact on the Town tax base that would not be worth the offset of a PILOT agreement with a prospective wind developer.

J. Industrial Wind Facility Construction  

Construction of industrial-scale Wind Energy Facilities can create potentially dangerous and annoying traffic problems and damage local roads.  The massive size of the turbine parts, and equipment needed for construction would require alteration to some roads, intersections, and power lines and special traffic patterns. Wide massive loads will require special law enforcement attention.    For safety school bus routes may need modification. Also the bedrock in Cape Vincent is close to the surface at many proposed turbine locations and the necessary blasting can damage water sources by disrupting veins of water in the fractured limestone that makes up Cape Vincent’s underlying strata.  Significant blasting could be needed to site industrial wind turbines which the Board believes could cause significant and unacceptable disruption to the community.

K.  Impacts on Communications and Radar Infrastructure  

Industrial -scale Wind Energy Facilities can interfere with various types of communications, including television and cell phone reception, microwave, and radio  and EMS service. It has been demonstrated that large turbines can create issue for weather radar, and inhibit a forecasters ability to predict severe weather.  Military radars can be effected as well.  Since Cape Vincent sits at an international border the military radar issue could be of significant concern.

L. Relationship with Industrial Wind Development

It has been well documented that the business practices of industrial wind developers in Cape Vincent, has created a severe sociological and psychological division in the community.  In addition the unethical relationships wind developers created with some former town officials has also badly divided the community.  Similar wind develop practices in other towns in NY have promoted investigations by the NY AG’s office including Cape Vincent. In addition the wind developers entered into lease agreements quietly and in near secrecy to sidetrack any  community opposition The Board believes that entering into a relationship with this business and ethical model is not healthy for the Town’s residents, the town government, or for the future goals of the town for a bright and responsible future.  This relationship also has and will reflect very negatively on the community image with the larger public and is not conducive to responsible development or tourism goals.

Included could be any more examples and documentation as deemed necessary to make the case for not allowing commercial wind development.

The Findings Conclusion and Summary

Regulation of the siting and installation of wind turbines is necessary to protect the health, safety, and welfare of neighboring property owners and the general public, and to preserve the town's existing character. But what type of regulation?

The Town Board of Cape Vincent, NY has carefully examined the research and evidence presented above from both the pro wind and wind opposition and numerous other credible sources.  The wind energy issue has been in the Cape Vincent community for at least seven years with the current wind development proposals.  During that time current members of the Town Board even before they were in office had sufficient time to carefully examine the wind issue and its potential impact on the community and other communities hosting active wind complexes. More importantly they have observed and experienced first hand the current and historical impacts already present from the wind proposals in Cape Vincent.  They have also commissioned studies after they where Town officials. Great detail and thought has been given to this matter over 7 years.

The Town Board of Cape Vincent has determined as a result of its experience and in depth research as outlined above that industrial scale wind energy development is not an appropriate land use for the Town due to the numerous negative impacts that cannot be sufficiently mitigated by traditional setback zoning practices due to the sheer size and overwhelming scale of this type of development.  The Board has determined that this development would have significant negative impacts on property values, the critical tourism, and seasonal investment base, and permanent residential base of the Town. In addition there are health concerns, and concerns for bird and bat populations since the Town sits in a significant migratory pathway with evidence from a neighboring wind farm of significant bird mortality rates. .  The Town has determine that the actual production and climate claims of industrial wind energy fall far short of the realities from actual existing real world experience with wind energy and have no actual verified scientific backing.  The Town Board believes this lack of performance would not justify the numerous negative impacts to our beautiful scenic Town and area and it would be irresponsible to proceed to allow this type of development, especially since there is a significant regional impact to areas that have no say in our zoning matters yet could experience large negative impacts. The Town board feels it would not be a responsible or reasonable or effective energy or environmental decision for our communities and region’s highly sought after scenic resources to allow the siting of wind power plants with such wide spread negative impacts on many levels, when in fact we know ahead of time from real world wind energy experience that nearly 80% or more of the wind power plants capacity will not be available, and the other 20% is highly unpredictable and unreliable.  An finally the Town Board has determined that industrial scale wind energy facilities are not in accordance with the language and goals of the Town’s Comprehensive Plan and it’s scenic resource and small rural town protections. The same holds true that industrial wind development is not in accordance with  the Purpose language and intent of the existing zoning laws to which this amendment is attached.  In addition it is the belief of the Board that industrial wind development would not or should not pass the rigorous test of site plan review by the Planning Board since it is not in accordance with our Comp Plan goals, and this type of development is unmitigatable and therefore the Planning Board must deny it at any rate by it’s very Site Plan Review Purpose language and obligation to responsible development in the community.

The Resolution

Therefore be it resolved, by the Town Board of the Town of Cape Vincent, NY that no industrial scale wind turbines or industrial scale wind development of any kind corporate/commercial, or community/cooperatively owned, or singularly owned by any individual citizen, shall be allowed to be constructed or operated within the borders of the Town of Cape Vincent, NY. 

Small personal scale wind energy units will be allowed, and the regulations for such devices shall be outline in a separate section of this wind law amendment to follow.

Section ????. Wind Energy Facility Permit.

A. No Wind Energy Facility shall be constructed, reconstructed, modified, operated or replaced in the Town of Cape Vincent except in compliance with this Local Law.

B. No WECS other than a Small WECS, as defined herein, shall be constructed, reconstructed, modified, operated or replaced in the Town of Cape Vincent. No Wind Measurement Tower shall be constructed, reconstructed, modified, operated or replaced in the Town of cape Vincent, except in conjunction with and as part of an application for a Small WECS.

C. Permit required. No Small WECS shall be constructed, reconstructed, modified, operated or replaced in the Town of Cape Vincent except pursuant to a Wind Energy Facility Permit issued pursuant to this Local Law.

D. This Local Law shall apply to all areas of the Town of Cape Vincent

E. The Town Board hereby appoints the Planning Board  of the Town of Cape Vincent as the body responsible for the administration of the town's Wind Energy Facilities Law, including the review of Wind Energy Facility Permit applications, and the decision whether to approve such applications. Approval of a Wind Energy Facility Permit shall be subject to the requirements set forth in this Local Law.

E. Variances. Notwithstanding any provision of law to the contrary, where a proposed Wind Energy Permit application contains one or more features which do not comply with the dimensional requirements of this Local Law, the Zoning Board of Appeals may grant one or more variances for a Small WECS, but in no event shall the ZBA grant a variance allowing a larger WECS than permitted by this Local Law, or a WECS primarily designed to generate electricity for off-site use, or any industrial-scale wind facilities. In making its determination, the ZBA shall take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant. In making such determination the board shall also consider: (1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than a variance; (3) whether the requested variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or community; and (5)whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the ZBA but shall not necessarily preclude the granting of the area variance. The ZBA, in the granting of variances, shall grant the minimum variance that it shall deem necessary and adequate and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.

H. Imposition of Conditions. The Planning Board shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed Wind Energy Facility Permit.

I. Public hearing. The Planning Board shall conduct a public hearing within sixty-two days from the day a completed Wind Energy Facility Permit application is received. Owners of property within one half mile of the proposed facility shall be notified by certified mail at least fourteen (l4) days prior to the date if the hearing. Public notice of said hearing shall be printed in the pertinent widely read  official newspapers at least ten (10) days prior to the date thereof. The Planning Board shall decide upon the application within sixty-two days after the hearing. The time within which the Planning Board must render its decision may be extended by mutual consent of the applicant and the board. The decision of the Planning Board on the application after the holding of the public

hearing shall be filed in the office of the Town Clerk of the Town within five business days after such decision is rendered, and a copy thereof mailed to the applicant.

J. Compliance with GML 239-m and SEQRA. In processing the Wind Energy Facility Permit application, the Planning Board shall comply with the requirements of Section 239-m of the General Municipal Law, and with the provisions of the State Environmental Quality Review Act under article eight of the environmental conservation law and its implementing regulations.

K. Court review. Any person aggrieved by a decision of the Planning Board to approve, approve with modifications, or disapprove a Wind Energy Facility Permit may apply to the New York State Supreme Court for review by a proceeding under Article seventy-eight of the Civil Practice Law and Rules. Such proceedings shall be instituted within thirty days after the filing of a decision by such board in the office of the Town Clerk of the Town.

 L. Transfer. No transfer of any Wind Energy Facility or Wind Energy Facility 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), shall occur without prior approval of the Town Board of the Town of Meredith, which approval shall be granted upon (1) receipt of proof of the ability of the successor to meet all requirements of this Local Law and (2) written acceptance of the transferee of the obligations of the transferor under this Local Law. No transfer shall eliminate the liability of an applicant or of any other party under this Local Law.

M. Notwithstanding the requirements of this Section, replacement in kind or modification of a Small WECS may occur without Planning Board approval when there will be (1) no increase in Total Height; (2) no change in the location of the Small WECS; (3) no additional lighting or change in facility color; and (4) no increase in noise produced by the Small WECS.

Section ????. Applicability.

A. The requirements of this Local Law shall apply to all Wind Energy Facilities proposed, operated, modified, constructed or replaced after the effective date of this Local Law.

B. Wind Energy Facilities for which a required permit has been properly issued and upon which substantial construction has occurred 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 replacement of, or 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 twelve (12) months after said effective date, unless a Wind Energy Facility Permit for said Wind Energy Facility is obtained.