APPENDIX C - ZONING REGULATIONS\ARTICLE 19 WIND ENERGY CONVERSION SYSTEMS

SECTION 19-1           INTENT

19-101.  The regulations set forth in this Article, or set forth elsewhere in these regulations when referred to in this Article, are the regulations governing the placement and operation of both commercial and domestic Wind Energy Conversion Systems (WECS).  The intent of this Article is to allow commercial WECS as conditional uses in the Agricultural (Article 5) District, with any conditional use permit for such use required to comply both with the relevant provisions of this Article and those of Article 26.  It is the further intent of this Article to allow domestic WECS as accessory uses in the Agricultural, Countryside (Article 7) and Public Use (Article 12) Districts, subject to compliance with the relevant provisions for such use set forth in this Article.

SECTION 19-2           DEFINITIONS

19-201. 

a.    Wind Energy Conversion System:  The combination of mechanical and structural elements used to produce electricity by converting the kinetic energy of wind to electrical energy.  Wind Energy Conversion Systems (WECS) consist of the turbine apparatus and any other buildings, support structures and other related improvements necessary for the generation of electric power from wind.

b.    Commercial Wind Energy Conversion System:  A single Wind Energy Conversion System exceeding 100 kW or exceeding 120 feet in height above grade, or more than one Wind Energy Conversion System of any size proposed and/or constructed by the same person or group of persons on the same or adjoining parcels or as a unified or single generating system.  The primary purpose of such system is the sale, resale or off-site use of electrical power.

c.    Domestic Wind Energy Conversion System:  A Wind Energy Conversion System consisting of a wind turbine, a tower, and associated control or conversion electronics, which has a rated capacity of not more than 100 kW, which is less than 120 feet in height above grade and which is intended to primarily reduce on-site consumption of utility power and not primarily for commercial power production.

d.    Wind Energy Conversion System Height:  The distance measured from the ground level at the base of the tower structure to the highest point on the Wind Energy Conversion System, including the rotor blades.

e.    Blade Glint:  The intermittent reflection of the sun off the gloss surface of wind turbine blades.

f.     Ice Throw:  Ice build-up that is thrown by spinning blades.

g.    Shadow Flicker:  A readily observable, moving shadow cast upon an observer when the blades of an operating wind turbine pass between the sun and an observer.

SECTION 19-3           COMMERCIAL WIND ENERGY CONVERSION SYSTEMS

19-301.  Development Plan: The application for a conditional use permit for a Commercial Wind Energy Conversion System shall be for all the Agricultural-zoned land within the perimeter of the proposed development and shall include all lands needed to meet all requirements, including setbacks, required within this application.  One application, with landowner’s signature, shall be required for each parcel of land located within the perimeter of the proposed Commercial Wind Energy Conversion System.

The application shall consist of the following:

a.    Introduction: A written document providing the following general information on the proposed project:

1.    Title of the project.

2.    Two (2) maps showing project location and vicinity.  One at 1:100,000 scale, and one at 1:2,000 scale (USGS scale).

3.    Name and address of the developer, and phone number and e-mail addresses of a contact person for the project. A statement from the developer providing relevant information regarding an overview of the company, qualifications and experience in Commercial Wind Energy Conversion System development.   In addition, the name, address, phone numbers and e-mail address of the manager of the proposed project.

4.    Relevant background information on the project, including a general overview of the project location, rationale and need for the project, timeframe and project life, phases of development, likely markets for the electricity produced, and possibilities for future expansion.

5.    Environmental guidelines and industry codes of practice that will be followed if approved.

6.    Reclamation Plan.

b.    Project Description:  A detailed description of the project and its life span, including the construction, operation, and decommissioning phases, and any infrastructure and off-site accessory structures required for the project.

1.    A general description of the major components and on-site facilities of the Commercial Wind Energy Conversion System, including information on the wind turbine specifications, transmission line and accessory facilities such as control rooms, transformers, substations, maintenance facilities, underground infrastructure, and interior access roads. The number, location, capacity, and dimensions of the turbines shall also be included.

2.    A description and schedule of major construction activities for the turbines, transmission lines, and accessory structures.

3.    A description of the proposed site preparation involving removal of vegetation.

4.    Estimates of the quantities of raw materials required for construction activities (sand, gravel, etc.) and their likely source.

5.    The volume and designated route for traffic generated during the construction phase, including routes for oversized and heavy equipment, and the proposed method of providing assurances to the public entities responsible for the roads of repairs and on-going maintenance to the roads and bridges needed to support the project.

6.    The designated route for traffic generated during the utilization of the facilities, including routes for oversized and heavy equipment needed for maintenance or repairs, and the proposed method of providing assurances to the public entities responsible for the roads of repairs and on-going maintenance to the roads and bridges needed to support the project.

7.    Operation and maintenance requirements (including frequency of maintenance activities) for the turbines and internal transmission lines connecting the individual turbines within the project and the transmission lines connecting the system to the “grid.”

8.    Width of transmission line easement required, including access requirements to the easement and any restrictions necessary on land use, development, and access within said easement.

c.    Site Plan.   A Site Plan with the following specifications shall be submitted:

1.    Scale of 1” = 2000’;

2.    Scale and north point (up);

3.    Name / address of land owner(s) and land developer(s);

4.    Boundaries of site. This includes boundary of property and boundary of area included within the requested Conditional Use Permit;

5.    Topography with contours at intervals of 20’;

6.    Adjoining roads, streets, railroads, landing strips and airports;

7.    Transmission lines;

8.    All houses within 1000’ of the site boundary;

9.    Acreage of site; point(s) of access to the project;

Schematic location of turbines, electrical collection systems, and maintenance roads;

11.  Boundaries of the 100-year floodplain as identified on the Federal Insurance Administration's “Flood Hazard Boundary Maps” of Kearny County, Kansas.

12.  The location of any underground pipelines and other utility easements.

d.    A written report addressing the items identified in Section 19-302, Performance Standards, as they relate to Commercial Wind Energy Conversion Systems.  In particular, these should address the following topics:

1.    Off-Site Infrastructure.

2.    Overview of existing environment.

3.    Noise.  

4.    Surface water. 

5.    Groundwater. 

6.    Air.

7.    Visual effects. 

8.    Ice throw.

9.    Fire hazard analysis.

10.  Communication interference. 

11.  A Decommissioning & Reclamation Plan for the entire site.

12.  Proposed measures to mitigate the effects of adverse impacts to the existing environment resulting from the construction, operation and decommissioning of the proposed facility.

19-302.  Performance Standards. 

a.    In order to receive and maintain a Conditional Use Permit issued in accordance with the provisions of Article 26 of these regulations, a Commercial Wind Energy Conversion System shall conform to the following performance standards:

(1)   Off-Site Infrastructure.  All roads not a part of the primary highway system of the State of Kansas intended to be used by the applicant as a means of ingress and egress to the proposed facility shall be designated on the application.  Final approval of the designated roads to be used shall be made a part of the Conditional Use Permit, if approved.  A construction and maintenance agreement between the applicant and Kearny County shall be required, unless waived by the Board of County Commissioners.  Such agreement shall specify the standards to which such roads will be reconstructed, if necessary, and the standards to which such roads will be subsequently maintained by the owner/operator of the Commercial Wind Energy Conversion System.  The agreement shall also specify the form, manner, timing, and frequency of maintenance and upkeep.  The responsibility of determining sufficiency of compliance with the road agreement shall be with Kearny County or its designee.

       In addition, documentation shall be provided indicating any proposed changes or upgrades to electrical substations, existing power transmission systems, or realignment of other utility systems required to support the project.  Acknowledgement from the owners of those systems shall be provided to prove that they are aware and have reached agreement with the applicant to provide for those changes and that any additional approvals required by these Regulations for such expansions have been or will be made prior to any construction by the applicant or that utility system.

(2)   Overview of existing environment.  A system should not be located in areas that have a strong potential for biological and/or environmental conflicts with a system.  A written description of the project site location, including an overview of the existing environment that may be affected by the construction and operation of the project.  Said overview shall include information regarding:

(a)   Flora – vegetation species, endangered and threatened species (officially listed), critical habitat and habitat conditions for such species.

(b)   Fauna – species, habitat assessment, endangered and threatened species (officially listed), migratory species, critical habitat and habitat conditions for such species.

(c)   Geoconservation – sites of geoconservation significance listed on the state/national database. 

(d)   Flood zones.

(e)   A map of the known or mapped archeological, cultural or historical sites or structures within a mile of the project.

(3)   Noise.   A system should not be located in such proximity to residences or residentially-zoned areas that noise from the turbines is an intrusion.  A noise report shall be prepared that identifies current decibel levels surrounding the project site and the decibel levels and source noise if development occurs.  Any proposed increase in noise levels on residential properties within ¼-mile of the project shall be indicated and mitigation plans identified.

(4)   Surface water.  Water Quality Standards utilized for construction sites in Kansas under the requirements of the Clean Water Act shall be in effect during all construction, operation and maintenance of all facilities in the project, including using appropriate methods to mitigate impacts.

(5)   Groundwater.  The project must be consistent with the objectives and requirements of all relevant water management policies of the county and state.  The following issues shall be addressed by a hydrologist licensed by the State of Kansas:

(a)   Protection of the quality and quantity of the area’s groundwater resources.

(b)   Maintenance of groundwater quality.

Preparation of a hydrology survey of the property within the project.

(6)   Soil Erosion.  Construction, operation and decommissioning shall be done in a manner so as to minimize soil erosion.  Facilities should avoid steep or erodable slopes, and the number and width of roadways and construction staging areas should be kept to a minimum.

(7)   Air.  Dust emissions control measures shall be utilized during construction phase and from all access roads that impact all non-agricultural uses, including farm residences, during the life of the project.

(8)   Visual Effects.  The following standards shall apply:

(a)   Systems shall use non-reflective, neutral-color finishes.  All towers and blades shall bear only limited markings for names of manufacturers or logos or similar identifying markings of the owners of the system.

(b)   The layout of the system shall be such to eliminate shadow flicker and blade glint from impacting on public roads and mitigate any such impacts on residential structures within the vicinity of the system.

(c)   All lighting necessary to comply with the FAA lighting requirements shall be installed on the minimum number of structures to comply with the requirements and shall consist of dual lighting structures with daytime strobe lights on medium intensity and nighttime red lights only.  No high intensity strobes or nighttime strobes shall be permitted.

(d)   No telecommunications dishes, antennas, cellular telephone repeaters, or similar devices shall be attached to towers.

(9)   Ice Throw.  All tower structures shall be located such that the maximum potential distance of ice throw from any individual structure shall be on the land owned by the leasor on which the structure is located.  Specific documentation shall be provided to quantify the basis of the distance assumed and shall be included with the application materials.  Ice throw shall not be allowed onto public roads or adjoining property.

(10) Fire Hazard Analysis.  Specific measures shall be documented to assure that risks from fire caused by any individual structure shall be minimized.  These include redundant mechanical equipment to shut down any rotor suffering from high heat from internal failure, and safety plans to be utilized during construction and maintenance.

       In addition, mitigation plans are to show how the towers and equipment are protected from fire originating from outside the site, especially in the event of a fire originating from a controlled burn or other source that might encroach into the project area. 

(11) Communication Interference.  Provide documentation regarding the risk of interference to other communication signals (radio, television, microwave, radar) and actions to mitigate potential adverse effects.

(12) Environmental Assessment and Mitigation.  Provide an environmental assessment of the potential adverse impacts from the proposed development and measures to be taken to mitigate such impacts.  The assessment and mitigation plan must include the following:

(a)   Impact on wildlife and wildlife habitat both on the site and in a biologically significant area surrounding the site.

(b)   Impact on any endangered or threatened species on the site and in a biologically significant area surrounding the site.

(c)   Impact on avian population, including migratory birds.

(d)   Impact on flora on the site and in a biologically significant area surrounding the site.

(e)   Impact of the development on soil erosion.

(f)   Impact of the development upon quality of groundwater and surface water in the area.

(g)   Impact on historic, cultural and archaeological resources in the area.

(13) Decommissioning and Reclamation/Abandoned Towers.  Approval of the Conditional Use Permit for a Commercial Wind Energy Conversion System shall be accompanied by a letter of credit, cash escrow account or surety bond or other means of financial assurance of a form, and in an amount, approved by the Board of County Commissioners as reasonably necessary to pay for the cost of decommissioning the facility and reclaiming the site to its pre-construction condition.  The purpose of this financial assurance is to assure removal of all improvements subject to permit in the event of abandonment of the facility, and reclamation of the site. Decommissioning shall include the requirement that all equipment shall be removed from the site, the foundations shall be removed to a depth of four (4) feet below the ground surface, access roads removed to the landowners satisfaction, and the ground restored to the condition specified in the reclamation plan.  Access roads may be maintained if so requested by the landowner(s) and not included within the reclamation requirements.

       An individual turbine shall be considered to have been abandoned when the turbine is incapable of producing more than 20% of the average amount of electricity produced by such turbine in comparable previous time periods (adjusted for actual wind conditions), as determined by the Zoning Administrator, for a period of at least six consecutive months and there is no demonstrated visible plan to restore the equipment to operating condition.  An entire project shall be considered to have been abandoned when at least 50% of the individual turbines have not produced electricity for a period of at least six consecutive months and there is no demonstrated viable plan to restore the equipment to operating condition.  An extension of the six-month time period may be granted by the Board of County Commissioners upon the presentation of sufficient justification by the project owner.

19-303.  County Review of Adequacy of Application.  In making its review of an application for a conditional use permit the County may (a) rely upon the information as submitted by the applicant, (b) supplement the information submitted with additional analysis and/or certification by qualified sources, the cost of which may be assessed back to the applicant, or (c) advise the applicant, prior to its submission of the application, that certain analysis and study will be performed by a qualified party selected by the County with the reasonable costs so incurred to be assessed to the applicant as part of its application fee.

19-304.  Monitoring and Review.  Each approved Commercial Wind Energy Conversion System shall provide a monitoring, review and reporting program for each part of the project to confirm compliance with the above listed performance standards.  At the time of application, a written report shall be submitted detailing the proposed pre-construction monitoring/studies, sites to be sampled, sampling procedures, the parameters to be analyzed, frequency of sampling and reporting.  A site plan showing sampling locations is also required.

19-305.  Additional Conditions.  A Commercial Wind Energy Conversion System shall meet the following requirements:

a.    Strict conformance to all relevant performance standards set out in the Kearny County Zoning Regulations.  The requirement for construction to begin within one (1) year may be extended by the Zoning Administrator to 18 months on written request by the applicant showing that circumstances beyond their control have prevented the applicant from obtaining a building permit.

b.    Wind Energy Conversion System shall meet the following setback requirements:

1.    The height of the Wind Energy Conservation System plus 50 feet from the edge of the rights-of-way of all public roads.

2.    A distance equal to twice the Wind Energy Conversion System height from a residential structure.

3.    A distance of 2,000 feet from any property line for property not subject to the conditional use permit.  If the applicant provides written consent, satisfactory to the Zoning Administrator, from all owners of record of land and all residents residing on such land which is within such 2,000 foot distance but not less than 1,000 foot distance from the boundary of the proposed conditional use permit, the 2,000 foot setback may be reduced by an area no greater than the area corresponding to such consent.  However, regardless of such consent in no event shall a setback of less than 1,000 feet from such property line be allowed.

4.    A distance of at least 300 feet from another tower.

c.    All communication lines and power collection lines shall be installed underground, under or at the edge of the access roads.  Aboveground transmission lines may be used only in public rights-of-way or easements.

d.    The applicant shall apply for a building permit for each Wind Energy Conversion System structure and shall do so prior to commencing construction.

e.    The lowest point of the rotor blades shall be at least 50 feet above ground level at the base of the tower.

f.     No significant quantities of lubricants shall be kept on site.  No hazardous materials shall be kept on site.

g.    The permit holder shall maintain continuous liability insurance coverage in an amount not less than $1,000,000.00 with the County named as an additional insured.  In lieu of such coverage the permit holder may provide an indemnification agreement satisfactory to the County.

h.    Maximum height of 350 feet above grade.  Greater height, but not to exceed 400 feet above grade, may be permitted if the applicant can satisfactorily demonstrate that increased height will result in increased energy efficiency, thereby reducing the total number of turbines in the project.

SECTION 19-4           DOMESTIC WIND ENERGY CONVERSION SYSTEMS

19-401.  As an Accessory Use in the Agricultural District.  In the “A” Agricultural District domestic WECS are allowed as an accessory use.

a.    Domestic wind energy conversion systems.  The following conditions and restrictions shall apply to domestic wind energy conversion systems:

1.    Minimum parcel size.  No system shall be located on a parcel of less than 20 contiguous acres.

2.    Density.  No more than one (1) system shall be located on each 20 acres of a parcel.

3.    Spacing.  No system may be located within 300 feet of another domestic system or a commercial wind energy conversion system.

4.    Setbacks.  Every system shall meet the following minimum setbacks:

(a)   A setback from the nearest property line a distance equal to twice the height of the system, including the rotor blades.

(b)   A setback from the nearest public road right-of-way a distance equal to the height of the system, including the rotor blades, plus an additional 50 feet.

5.    Blade height.  The lowest point of the rotor blades shall be at least 50 feet above ground level at the base of the tower.

6.    Tower height.  A maximum of 100 feet.

19-402.  As an Accessory Use in the Countryside and Public Use Districts.  In the “CS” District and the “P” District domestic WECS are allowed as an accessory use.

a.    Domestic wind energy conversion systems in the “CS” Countryside and “P” Public Use Districts.  The following conditions and restrictions shall apply to domestic wind energy conversion systems:

1.    Minimum lot size.  No system shall be located on a parcel of less than 20 contiguous acres.

2.    Density.  No more than one (1) system shall be located on each 20 acres of a parcel.

3.    Spacing.  No system may be located within 300 feet of another system or a commercial wind energy conversion system.

4.    Setbacks.  Every system shall meet the following minimum setbacks:

(a)   A setback from the nearest property line a distance equal to twice the height of the system, including the rotor blades.

(b)   A setback from the nearest public road right-of-way a distance equal to the height of the system, including the rotor blades, plus an additional 50 feet.

5.    Blade height.  The lowest point of the rotor blades shall be at least 50 feet above ground level at the base of the tower.

6.    Tower height.  A maximum of 100 feet

7.    Advertising.  No advertising signs of any kind shall be located on the system.