TOWN OF NORTH HARMONY
ZONING BOARD OF APPEALS HEARING
WEDNESDAY, 11/19/2014, 7:30 PM
ZBA MEMBERS PRESENT: Dick Barton, Helen Emick, Louise Ortman, Dan Thomas, Greg Michalak, Roger Vaillancourt, Brad Lawson, Zoning C.E.O., Dave Stapleton, Attorney
Others Present: Josh Brown, Keri Belvorac, George McConochie
In the absence of Mr. Levesque, Mr. Michalak assumed the duty of Chairman. The hearing was brought to order at 7:40 PM and Attorney Stapleton swore in all who expressed intent to speak.
1. Joshua Brown requesting a Special Use Permit to install one 10kW Bergey Windpower Company (BWC Excel 10) wind turbine (height 153.8’ above foundation surface) at property located at 3840 Morris Rd., Sherman, NY 14781, specifically Section 313.00-3-5.
Mr. Michalak asked the applicant to explain the project. George McConochie, Sustainable Energy Developments, Inc., appeared to speak for the applicant Josh Brown. Mr. McConochie said his company had been hired to do the permitting, design and installation of the tower. He said they had also done the Wiemer wind tower located in the town. A Special Use Permit is required for a Small Wind Energy Conversion System (Small WECS) as outlined in Zoning Code Sec. 690 Wind Energy Facilities, §690.4. D.; Permits and Rezoning Required. A Height Variance is also required as the request is for 153.8’ above the foundation surface and Zoning Code Sec. 690; § 690.23. Small WECS Development Standards 4. b. allows tower height of 150’. Mr. McConochie said the reason the height is 153.8’ is in order to reach the optimal wind height. He said the base of the tower is at ground level. Mr. McConochie said it is a free standing lattice tower with a wider base because there will be no guy wires on this tower. Mr. Barton said he was curious about what the payoff on a tower of this type is. Mr. McConochie said 12-15 years at current kWh costs. He said the towers are built to last 20-25 years. Mrs. Ortman asked what the distance from the tower to the property line is. Mr. McConochie said it is 390’ to the roadside property line; 920’ to the southern line; 1,900’ to the northern line; and 1,150 to the eastern line. Mr. Lawson said it is 519’ to the home across the road. Mr. Thomas asked whose responsibility it would be to remove the tower when it is no longer productive. Mr. McConochie said that Bergey is in essence leasing the tower to the Brown’s and when that period is over they offer a buyout to the Brown’s. He said he believes if it is no longer in use, it is decommissioned and removed or repowered. Mr. Michalak suggested that the SEQR be reviewed at this time.
Mr. Barton motioned that the Zoning Board of Appeals take Lead Agency Status on the SEQR
for the installation of one 10kW Bergey Windpower Company (BWC Excel 10) wind turbine (height 153.8’ above foundation surface) at property owned by Joshua Brown and located at 3840 Morris Rd., Sherman, NY 14781, specifically Section 313.00-3-5. Mr. Michalak seconded and the motion was carried unanimously.
FULL EAF – PART 1 – Project and Setting
Mr. Stapleton reviewed Part 1 of the SEQR which the applicant completed in its entirety. Mr. McConochie explained that NYSERDA was funding a portion of the project through grants and that they have their own checklist which must be met. This requires that the local permitting authority review and give approval for the project. Mr. Thomas said in the past when towers were proposed “bird kills” had been
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an issue. He asked if that was an issue in this case. Mr. McConochie said those issues are usually limited to large wind farms on ridges in migratory paths. He said the type proposed is not considered to be impactful. The following are items which were revised with the applicant’s approval:
C.4. Existing Community Services
a. changed to Sherman School
b. changed to Chautauqua County Sheriff’s Department
c. changed to Ashville Fire Department
E.2. Natural Resources On or Near Project Site
d. changed to 100-150’ (based on well depth)
FULL EAF – PART 2 – Identification of Potential Project Impacts
Mr. Stapleton reviewed Part 2 of the SEQR with the ZBA members and responses are indicated on the SEQR which is a part of this record.
FULL EAF – PART 3 – DETERMINATION OF SIGNIFICANCE
Mr. Michalak motioned for a Negative Declaration of Impact on the SEQR for the installation of one 10kW Bergey Windpower Company (BWC Excel 10) wind turbine (height 153.8’ above foundation surface) at property owned by Joshua Brown and located at 3840 Morris Rd., Sherman, NY 14781, specifically Section 313.00-3-5. Therefore, an environmental impact statement need not be prepared. Mr. Barton seconded and the motion was carried unanimously.
Mr. Stapleton asked Mr. McConochie who had been notified about the application and if he had received any responses. He asked when the notice to County Planning had been sent out. Mr. McConochie said on 9/10/14, the same day he sent the application to Brad Lawson. He said he had received no response from County Planning. Mrs. Thomas stated that notices had been sent by her office to both the Town of Chautauqua and Sherman. Mr. McConochie explained that the majority of the wind generated electricity will be used on site and any excess will go into the grid. The Brown’s will receive credit for the excess which can be used when there is little or no wind. He said all of the equipment has been tested and certified by National Grid and the Public Service Commission and there is no problem with interconnection. Mr. Stapleton reviewed extensively Zoning Code § 690.23. Small WECS Development Standards with the board and it was felt that the proposed tower is compliant with the exception of the height. Mr. McConochie assured that all lines would be underground in conduit and will interconnect at the barn which has an existing service panel. He said the only sign will be on the base of the tower to indicate that there is high voltage present. No signage on the turbine itself. He said the tower has climbing pegs on it that they can remove. Mr. Lawson said that the application indicates that the pegs will be removed at 10’ and our zoning requires 12’. He asked that this be changed and noted on the application. Mr. McConochie agreed. There was discussion of the blade color and all agreed that black is fine. Mr. McConochie said the tower has both manual and automatic speed control. Mr. Michalak asked if anyone wished to speak regarding the application.
Mr. Michalak motioned to grant a Special Use Permit and Area Variance for height (allowed is 150’) to Joshua Brown as outlined in the application and in these minutes for the installation of one 10kW Bergey Windpower Company (BWC Excel 10) wind turbine (height 153.8’ above foundation surface) at property located at 3840 Morris Rd., Sherman, NY 14781, specifically Section 313.00-3-5 with the following conditions:
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Climbing pegs be removed from ground to 12’ in accordance with Zoning Code
All Small WECS standards be met
Mrs. Emick seconded and the motion was carried unanimously
2. Marlin Younker (Chautauqua Land Holdings, LLC) requesting an Area Variance to install a 6’ tall fence on property located at 2918 Rt. 394, Ashville, NY 14710, specifically Section 350.17-1-47, which does not meet height requirements set forth in Sec. 618 of the Zoning Code.
Ms. Belvorac appeared to represent the applicant. She said Mr. Younker would like to install a 6’ tall vinyl fence with a gate (4’ is allowed) around an existing driveway. Mr. Lawson said he had conversed with Ms. Belvorac and this should be a Special Permit not an Area Variance as had been filled out. It was noted that fences are addressed in Sec. 618 of the Zoning Code. Ms. Belvorac said there would be a latching gate across the driveway which is 10’ from the actual pavement edge on Rt. 394. Mr. Thomas said that he feels there is an issue with the distance of the gate from the highway. He said there is not enough room for someone to get off Rt. 394 and turn into the driveway with a vehicle and boat trailer with the gate positioned as it is currently. Mrs. Emick questioned the distance from the centerline of the State Rt. 394. Mr. Stapleton said State roads are 66’ ROW, so they would own 33’ from the centerline of the road. There was discussion of the National Gas Fuel ROW and it was stated that if a property owner builds over the ROW it is subject to be torn out if there is any repair, etc. necessary. There was lengthy discussion by the board members on the safety issues involved with having a gate so close to the roadway. There was also concern about safe ingress and egress with the fence obstructing the view of Rt. 394. It was suggested that an opinion from NYS-DOT be sought by Ms. Belvorac. The board members indicated that if the gate were moved the distance of a truck and large trailer (or far enough that full length pull off from the road could be achieved easily) further back from the road, it would reassure them as to the safety of the project. There was further general discussion of the fence and ideas for remediation were discussed between the board and Ms. Belvorac. Ms. Belvorac agreed to take the board’s concerns and recommendations to Mr. Younker for discussion.
Mr. Michalak motioned to table the application for the following:
Pending NYS-DOT input
Mr. Thomas seconded and the motion was carried unanimously.
The hearing was adjourned at 9:30 PM.
Nancy M. Thomas