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HomeMy WebLinkAboutMin-06-18-08CODES AND ORDINANCES COMMITTEE MEETING MINUTES JUNE 18, 2008 PRESENT: Bill Goodman, Herb Engman, Pat Leary, Eric Levine, Kirk Sigel, Eva Hoffmann. OTHERS: Jonathan Kanter, Director of Planning; Susan Brock (Susan), Attorney for the Town; Sue Ritter (Sue), Assistant Director of Planning; Bruce Brittain (Guest); Doug Brittain (Guest). Chair Bill Goodman called the meeting to order at 7:33 p.m. Agenda Item No. 1 - Member Comments/Concerns: None. Agenda Item No. 2 – Approval of Minutes of May 21, 2008 Meeting: Moved by Herb, seconded by Kirk, the Committee unanimously approved the Minutes of the May 21, 2008 meeting as written. Agenda Item No. 3 – Consideration of Minor Revisions to Draft Small Wind Energy Facilities Law: Bill reported that the Town Board had referred the draft Local Law regarding Small Wind Energy Facilities back to the Committee for review and recommendations regarding Section 5 on page 4 of the law relating to noise limits. Jonathan referred to his memo to the Committee dated June 11, 2008 describing the issues that had been raised at the Town Board meeting by Bruce and Doug Brittain and the Tompkins County Planning Department. Both had indicated that they felt the noise threshold of 10 dB(A) above ambient sound level was too high. Eva felt that 5 dB(A) above ambient would be a safer limit to avoid noise issues with neighbors. Herb indicated that if the Town wants to help lower our dependency on carbon-based energy sources, we may have to have small sacrifices in areas like noise. Herb added that current wind energy facility technology has lowered the noise generation, although they can make more noise as they get older and do not work as efficiently. Herb felt that we need a high enough safety valve to provide assurance to people who decide to put up a wind facility that their investment in that facility will not be threatened by neighbor complaints regarding noise. Jonathan explained the suggested revision to Section 5 in the draft law, which was based in part on a recommended model in the California Energy Commission’s Handbook, “Permitting Small Wind Turbines”. The suggested revision includes a maximum sound pressure level of the facility itself of 60 dB(A) and an exceedance level of 8 dB(A) above ambient sound level, whichever is greater. Herb indicated that he would not want to go with anything lower than 8 dB(A) above ambient levels. Kirk said that he is leaning toward lower noise levels. As an example, the County Planning Department recommended using a maximum sound pressure level of 55 dB(A). Bill asked whether there was much discussion regarding noise levels in past Committee discussions about the proposed law. Jonathan responded yes, there were many discussions, and the Committee reviewed much information and data regarding noise issues. 2 Bruce Brittain handed out a sheet with a “Table 4: Community Response to Increases in Noise Levels”, which indicates that with a change of 5 dB(A) there can be sporadic complaints about noise, but with an increase of 10 dB(A), there can be widespread complaints. Bruce added that the NYS Department of Environmental Conservation (DEC) recommends increases of no more than 6 dB(A) above ambient conditions. Eric indicated that he agrees with what everyone has said, and wondered if the Committee could draft revised wording that would limit the noise level upon installation of the facility at no more than 5 dB(A) above ambient sound levels, based on the manufacturer’s noise specifications. Eric also mentioned that he had visited a friend’s wind facility in Wilseyville and would be happy to take other Committee members there to visit it. Herb mentioned that some Committee members had visited a facility in Enfield, and that the owner of that facility had indicated that you cannot always rely on the manufacturer’s specifications. Susan suggested the possibility of using the suggested wording in Jonathan’s memo highlighted in blue and adding something to the effect that “the sound level shall not exceed 5 dB(A) above ambient levels as measured at the nearest residence”. Bill agreed with Herb that a higher noise limit would encourage more people to pursue wind energy options. Bill also liked the idea of measuring the sound level at the nearest residence. Kirk also liked the idea of a looser limit at the property lines and a more restrictive limit at the nearest residence. Kirk reiterated that the County Planning Department recommended a maximum sound pressure level of 55 dB(A). Jonathan referred to a handout (dB SPL in Real Life) that includes examples of how sound pressure levels are perceived by people. Examples included that 60 dB(A) is a typical sound level of ordinary conversation, and 50 dB(A) is typical of a quiet suburban area. Herb indicated that if we use two points of measurement, at the property line and at the nearest residence, we would have to grandfather the situation at the time the facility is constructed. In other words, if a house is built after the wind facility is built, the facility can stay even if the noise limit is exceeded. Pat indicated that she agrees with the suggested limit of 8 dB(A) above ambient sound levels, and asked why not use the 55 dB(A) recommended by the County. Jonathan responded that 55 dB(A) does not leave much leeway, and noise research indicates that some facilities do exceed 55 dB(A) under certain conditions. Herb made a motion to revise Section 5 on page 4 of the draft Local Law by accepting the blue highlighted wording in Jonathan’s memo to replace the wording in Section 5 of the May 23, 2008 draft Local Law. Pat seconded Herb’s motion. The proposed wording is as follows: “For wind speeds in the range of 0 – 25 mph, small wind turbines shall not cause a sound pressure level in excess of 60 dB (A), or in excess of 8 dB (A) above the ambient sound level, whichever is greater, with sound measurements taken nearly concurrently and measured at any property line abutting a property owned by an entity other than the owner of the property on which the small wind energy facility is located. This level, however, may be exceeded during short-term events such as utility outages and severe wind storms.” Bill asked if there was any discussion on the motion. Herb indicated that noise is in the ear of the beholder. When he hears the sound of a nearby stream at night, it can be a soothing sound. 3 Herb does not feel that the sound from wind energy facilities is obtrusive, and that the Committee may be overly obsessing on this issue. Bruce mentioned that there are some quiet wind turbines, but not all are quiet. The generator can be loud if not properly controlled. Doug Brittain indicated that the electrical part of a wind facility can also make noise. Doug reiterated that if a level of 10 dB(A) above ambient is used, there could be complaints. Bill asked if the Committee would be willing to go with the higher limits to get the law going, and then see if we get any complaints. Susan suggested adding some additional language to the proposed wording in the motion as follows: add “wind speeds exceeding 25 m.p.h.” in the last sentence, so that it reads, “This level, however, may be exceeded during short-term events such as utility outages, wind speeds exceeding 25 m.p.h. and severe wind storms”. Susan then asked whether the wording should say “whichever is greater” (in reference to the proposed limit of sound pressure level not to exceed 60 dB(A) or in excess of 8 dB(A) above ambient sound level), or whether the wording should indicate that both levels have to be met (rather than “whichever is greater”). Bill indicated that he likes the “whichever is greater” wording because it gives more flexibility to the owner. Kirk said that if we use the greater of the two, then we would be allowing loud turbines in quiet areas. Herb indicated that he would prefer sticking with the wording in his original motion., except that he accepts Susan’s suggestion to add the reference to “wind speeds exceeding 25 m.p.h.” in the last sentence. Doug indicated that in most cases, wind turbines are at similar noise levels to ambient noise. Eva asked at what wind speeds do turbines normally operate. Bruce indicated that they usually require winds of at least 8 m.p.h. Herb indicated that using a low exceedance range above ambient sound would discourage using turbines in the quieter, more remote areas of the Town. Bill asked the Committee if they were ready to vote on Herb’s motion, with the friendly amendment to add the words “whichever is greater” in the last sentence. The vote on the motion was four in favor (Bill, Herb, Pat and Eric), two opposed (Eva and Kirk), with no one abstaining. Bill declared that the motion passes. Bill referred to the two additional minor revisions suggested by the Brittains as outlined in their memo dated May 23, 2008, regarding Sections 3 and 4 on page 4 of the draft law, and asked if the Committee is okay with these suggestions. Herb moved that Section 3 be revised to add the reference to “above-ground fuel storage or pumping facilities” and that Section 4 be revised to add references to “exposed” moving parts in the first two sentences. Pat seconded Herb’s motion. Bill asked for a vote. The Committee unanimously approved this motion to incorporate these minor revisions. Agenda Item No. 4 – Continuation of Review of Proposed Stream Setback Law: Sue reported on the field trip attended by Committee members and staff in which they visited several streams to observe what the 35 foot setback would be like at streams with 50 to 200 acre drainage areas, and asked if Committee members who attended had any observations. Kirk indicated that the field trip helped him confirm in his mind that the setbacks we are suggesting are appropriate for those streams. Sue indicated that the Conservation Board had looked at a 50 foot setback for these streams and concluded that 50 feet is probably too large a setback for this category of streams. Bill agreed. Pat said that she was surprised at how small some of these streams are, and that even a 35 foot setback seemed large for some of these. 4 Sue raised another issue – where do you measure the setback from. Deb Caraco had recommended using the centerline of smaller streams from which to measure the setback, but that you would lose a lot of the setback if you measure from the centerline on larger streams. Sue added that the field trip helped to see why using the top of the bank on a larger stream seemed to make sense, and that the bank is usually apparent on most larger streams. Kirk mentioned that one issue relates to the natural shifting of streams over time, and that shifts in stream alignment could change the location of setbacks in relation to existing houses. The Committee agreed that using the centerline is okay for small streams, and using the bankfull for larger streams (those with 50 and 100 foot setbacks) is appropriate. Sue added that the Vermont guidelines for identifying the bankfull will be helpful. The Committee agreed. Sue indicated that Kate Hackett had suggested regulating smaller head water streams, those with drainage areas less than 50 acres. The current draft proposal of the Stream Setback Law does not include setbacks for these smaller streams. Sue indicated that the field trip showed several of these smaller streams, and she was comfortable with adding a setback requirement for streams with drainage areas between 35 and 50 acres. Sue showed the Committee a map she had prepared showing streams that could be added that have drainage areas between 35 and 50 acres. Bill indicated that it does not look like using this new threshold would add that many streams that would be regulated. Sue suggested that in addition, the proposed law could include language that would allow the Planning Board to consider smaller, unregulated streams when they review subdivisions and site plans. Jonathan suggested adding this same language for the Zoning Board of Appeals in their review of variances and special approvals when looking at environmental impacts. The Committee liked these ideas. The Committee also agreed to use the 35 to 50 acre drainage area threshold for regulating these smaller streams. Sue brought up another issue. The current draft of the law exempts parcels less than one acre existing at the time of adoption of the law from the setback restrictions. Sue indicated that the County recommended eliminating this exemption, and that she illustrated on the map where existing parcels are located that are less than or equal to one acre and where such parcels intersect streams. Jonathan indicated that it does not look like too many parcels under one acre would be affected by the stream setbacks if we eliminate the exemption. Susan mentioned that if a stream runs through a property, the setback might eliminate the buildable area on a small parcel, and that in some cases, the setback could be on both sides of the stream on an individual parcel making it difficult to build on. That is why the exemption was proposed in the original draft law – to avoid takings claims against the Town. Kirk said he does not see the need for the exemption, and that the Zoning Board of Appeals can handle requests for setback variances. Jonathan asked if the stream setback law would be in the Zoning Code. Susan said yes it would be in the special regulations section of the Zoning Chapter. Jonathan added that variance requests would have to meet the area variance criteria. Susan indicated that the law could include additional criteria for the Zoning Board to consider in granting such variances. Susan added that the exemption was first suggested to mitigate public concern regarding the law. Sue mentioned that she is not sure how eliminating the exemption would affect an area like Forest Home where all houses are on small lots, and many lots could be affected by setbacks from Fall Creek. Sue added that she could prepare another map showing the 100 foot setback from the Creek and how lots there would be affected. Bill asked whether the Committee is generally okay 5 with eliminating the exemption for one acre lots or smaller. Pat indicated that she would feel better about eliminating the exemption only where a stream is on the edge of a lot, but not if a stream runs through a property where buildable area might be too severely restricted. Bill suggested that it would be good to look at the Forest Home situation to see how those lots would be affected. Bill asked Sue to also look at areas where a stream runs through a property to see how those areas would be affected. Sue said she would look at this for the next meeting. Sue mentioned that she had sent Committee members the minutes of the June, July and August Committee meetings in 2007, in which the stream setback law was discussed. There are several remaining items to look at based on those discussions, as follows: At-grade stream crossings: Sue spoke with a DEC forester, who indicated that at -grade stream crossings do occur in conjunction with timber harvesting operations and occasionally at a house where a creek cuts through a property and the owner wants to get from one side of the creek to the other without building a bridge or culvert. This is where one drives a vehicle directly across a stream. DEC has guidelines on how to safely do at-grade crossings (e.g., perpendicular to the stream). Agricultural properties: Many farmers voluntarily participate in the Conservation Resource Program in which streams are protected. However, some farms still include activities such as cows crossing streams. Sue said that she would get more information on this subject for the next meeting. Herb mentioned that when he talked with the Agriculture Committee about the proposed stream setback law, many of the farmers said that they already protect creeks on their properties, but that some of the farmers may not have been clear on whether their activities would be consistent with the law. Sue said that she is not sure how to proceed with this, and the Committee should discuss this further. Agenda Item No. 5 - Other Business: Fence Provisions: Susan mentioned that the Zoning Code is very unclear about how fences are to be handled, and referred to Section 270-233 of the Zoning Chapter. The Zoning Board of Appeals has had to interpret when and how the fence provisions apply, and it is not clear to homeowners what they should expect. The interpretation is that if a fence is located within a yard setback, it can be up to six feet in height. If not in a setback area, a fence can be as high as 30 feet (as any other structure in a residential zone can be). Kirk asked as a policy question whether the Town should allow fences greater than six feet in height. Susan indicated she had sent out a summary of the fence provisions and issues for the Committee to address in an email, and that the Code Enforcement Officers would like to see the fence provisions clarified as a high priority. Eva suggested that perhaps fences should not be allowed on property lines and should be set back a little from the line. Bill asked whether this item was on the Committee’s work plan priority list. Herb said that it is not on the list. Bill asked the Committee if it is okay to add this to the priority list. The Committee agreed to put this on the next meeting agenda because it should be a fairly quick item to address. Sign Law: Herb indicated that he would like to also get the sign law back to the Committee soon to review and update. Jonathan referred to the outline of “Suggested Amendments to Sign Law – 6 Chapter 221 Town Code” (Nov., 9, 2006) that had been distributed. Bill suggested that the Committee should start discussing this at the next meeting. The Committee agreed. Agenda Item No. 6 - Schedule and Agenda for Next Meeting: The next Committee meeting is scheduled for Wednesday, July 16, 2008. Possible agenda items include continuation of discussion regarding proposed Stream Setback Law, possible amendments to the Zoning Chapter regarding height and setback provisions for fences, and return to review of Chapter 221 of the Town Code regarding Signs. Adjournment: As there was no further business to come before the Committee, the meeting was adjourned at 9:35 p.m. Respectfully submitted, Jonathan Kanter, A.I.C.P. Director of Planning