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2011-088s:\legal\our documents\ordinances\11\wecs ordinance council public hearing.doc ORDINANCE NO. 2011-088 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, CREATING A NEW DIVISION 3 TO CHAPTER 26, ARTICLE III OF THE DENTON CODE OF ORDINANCES, REGULATING THE USE AND INTERCONNECTION OF WIND ENERGY CONVERSION SYSTEMS; AMENDING SUBCHAPTER 35.5 OF THE DENTON DEVELOPMENT CODE TO SPECIFY ZONING RESTRICTIONS APPLICABLE TO WIND ENERGY CONVERSION SYSTEMS AS A USE; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, wind energy is an abundant, renewable, and nonpolluting energy resource and its conversion to electricity may assist with reducing dependence on nonrenewable energy resources and decrease air and water pollution resulting from conventional energy sources; and WHEREAS, wind energy conversion systems may assist with reducing peak power demands and help diversify citizens' energy supply; and WHEREAS, while the City encourages renewable and nonpolluting energy sources, wind energy conversion systems used to produce electricity must meet the City's goal of protecting and promoting public health, safety, and welfare of the community; and WHEREAS, the City recognizes that it is in the public interest to permit wind energy conversion systems consistent with the regulations hereinafter adopted by this Ordinance; and WHEREAS, based upon a survey and review of experiences in other communities, the City finds that the unregulated installation of wind energy systems within the City carries the potential for threatening the health safety and comfort of the citizens, and can have negative impacts due to noise and visual aesthetics. Due notice was given to the public of a public hearing for the purpose of determining whether the City Council of the City of Denton, Texas should enact an Ordinance controlling Wind Energy Conversion Systems in the City of Denton, Texas; and WHEREAS, the Public Utilities Board of the City of Denton, Texas has recommended approval of the standards contained in Section 3 of this ordinance; and WHEREAS, after a public hearing held in accordance with State law, the Planning and Zoning Commission of the City of Denton, Texas has recommended approval of the provisions contained within Sections 4 and 5 of this ordinance; and WHEREAS, the City Council of the City of Denton, Texas has considered the matter and deems it appropriate and in the best interest of the public and the City to regulate the installation and operation of Wind Energy Conversion Systems by passage of this Ordinance; NOW THEREFORE, Page - 1 s:\legal\our documents\ordinances\11\wecs ordinance council public hearing.doc THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The facts and recitations contained and cited in the preamble hereof are hereby found and determined to be true and correct and are incorporated herein by reference. SECTION 2. The City Council finds that is it in the best interests of public health, safety and welfare to define standards governing the installation and operation of wind energy conversion systems. SECTION 3. Article III, Division 3 of Chapter 26 of the Denton Code entitled "Wind Energy Conversion System" is herby added, commencing with section 26-115, to read as follows: DIVISION 3. WIND ENERGY CONVERSION SYSTEMS 26-115 Definitions. For the purposes of this division, the following terms, phrases, words, abbreviations, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in their present tense include the future tense, words in plural include the singular, and words in the singular include the plural. The word "shall" is always mandatory and not merely directory. Words not defined shall be given their common and ordinary meaning. ANSI means the American National Standards Institute. Blade arc sphere is the three-dimensional sphere in the air created by the 360 degree rotation of the blades combined with the 360 degree rotation of the WECS nacelle. Building-mounted WECS is any WECS that is mounted directly to a building's roof, chimney, vent stack, cooling tower, dome, spire, or other similar structure, rather than a free-standing monopole support structure. Decibel means the unit of measure used to express the magnitude of sound pressure and sound intensity. Free-standing WECS is any WECS that is self-supporting via a monopole support system or is and not mounted to a building or structure in any way. FAA means the Federal Aviation Administration. Height, for the purposes of this section, is measured from the average natural ground level to the highest point of the arc of the blades' elevation for free standing WECS. If a free-standing WECS does not use blades, then height is measured from the average natural ground level to the highest point of the WECS. For building-mounted WECS, the height shall be measured from the base of the WECS where it is mounted on the building to the highest point of the arc of the blades' elevation. If the building-mounted WECS does not use blades, then height is measured Page - 2 s:\legal\our documents\ordinances\11\wecs ordinance council public hearing.doc from the base of the WECS where is mounted on the building to the highest point of the WECS. See "Limitations", Subchapter 35.5 of Denton Development Code, for additional information regarding height of building mounted WECS. Nacelle is a streamlined enclosure that connects the blades and WECS hub to the WECS support device and houses specific mechanical parts including, but not limited to braking mechanisms, shafts, gearboxes and generators. Sound Pressure means the average rate at which sound energy is transmitted through a unit area in a specific direction, as measured at a receiver. Sound Pressure Level means the sound pressure as measured on a logarithmic scale and reported in decibels. Tower Height shall mean the height above grade of the fixed portion of the tower, excluding the wind turbine and blades. Turbine shall mean the parts of a Wind Energy System including, but not limited to, the blades, generator and tail. Wind Energy Conversion System or WECS shall mean a system that converts wind energy into electricity through the use of a wind turbine, a nacelle, associated control or conversion electronics, and (depending on design) a tower. A WECS is intended for on-site production of electricity. 26-116 General Regulations The following general regulations apply to all WECS located within the city limits. Pre-existing WECS installations lawfully in existence at the time of the enactment of this Ordinance shall not be required to meet the requirements established herein, other than those contained in Subsections (z) and (aa) below. To be considered lawful, the owner of the WECS must provide documentation proving that the subject WECS was in existence at the time of the enactment of this Ordinance. If no documentation is available, the burden of proof shall be on the owner of the WECS. (a) Zoning restrictions imposed upon WECS installations are as specified in the Denton Development Code.1 (b) Compliance with Denton Municipal Electric (DME) Interconnection Provisions. The installation of any WECS that is within the service area of Denton Municipal Electric (DME) shall comply with the DME "Agreement for Interconnection and Parallel Operation of Distributed Generation" and shall abide by the conditions of the "Agreement for Interconnection and Parallel Operation of Distributed Generation". No WECS shall be installed prior to Code. 1 CROSS REFERENCE - Zoning restrictions, generally, see Subchapter 35.5 of Denton Development Page - 3 s:\legal\our documents\ordinances\11\wecs ordinance council public hearing.doc submitting an Application for Interconnection and Parallel Operation of Distributed Generation with DME and having a fully executed Agreement for Interconnection and Parallel Operation of Distributed Generation with DME. (c) WECS Permit Required. No WECS shall be installed without first obtaining a WECS permit from the Building Official, or his/her designee. The permit's application shall be submitted with the required numbers and types of plans as deemed necessary by the Building Official to adequately review the proposal. An application for building permit must be accompanied by: (1) The appropriate permit fees as established by the City; (2) A site plan of the proposed WECS at a scale no smaller than V = 30'. The site plan shall include: (i) A survey and legal description of the parcel where the proposed WECS will be located; (ii) A plan view layout of the proposed WECS clearly showing: • The location of the System; • All components of the System; • Distances to property lines; • Required setbacks; • Adjacent land uses and zoning designations; • Existing structures on the site; • Required screening of the base of the tower structure; • Natural features such as watercourses, trees, and Environmentally Sensitive Areas (ESAs); • Existing overhead and underground utility lines including any pad -mounted equipment and appurtenances; and • Easements; (3) Elevation drawings showing: • The design and height of the proposed WECS; • Detailed drawings of all System components; and • A profile view of the setback distances and distances to property lines; (4) A line drawing of the electrical components of the System in sufficient detail to allow for a determination that the manner of installation conforms to the Electrical Code; (5) Standard installation drawings of the WECS, including the tower, base, and footings. An engineering analysis of the tower showing compliance with the Building Code and certified by a licensed professional engineer registered in the State of Texas shall also be submitted; and (6) Evidence of notice to utility company as required by Subsection (t) below. Page - 4 s:\legal\our documents\ordinances\11\wecs ordinance council public hearing.doc An issued permit shall expire if the WECS is not installed and functioning within six (6) months, including completion of the required inspection, from the date the permit is issued; or, if the WECS is out-of-service or otherwise unused for a continuous 12-month period. (d) Construction Standards. A WECS must be installed according to the manufacturer's recommendations and under the seal of a professional engineer registered in the State of Texas, and may not exceed the manufacturer's recommendations for maximum tower height. Additionally, all components of a WECS shall comply with applicable state and local building codes. (e) Location and Setback. (1) Free-standing monopole support structure: a. Free standing WECS shall be located behind the front elevation of the primary structure on the lot. b. No part of the WECS, including blades, may extend into any required yard setback or utility easement. C. The horizontal separation from all property lines shall not be less than the height of the WECS, plus 10 additional feet. d. Free standing WECS shall have a setback distance equal to 1.25 times the height of the WECS from any overhead utility lines. e. Free-standing WECS blade arc spheres shall have a minimum thirty (30) foot clearance from any structure or any other impediment. f. Free standing WECS shall have a minimum thirty (30) foot setback distance from any tree. (2) Building-mounted: a. Building-mounted WECS shall be located behind the front elevation of the primary structure on the lot. b. No part of the WECS, including blades, may extend into any required yard setback or utility easement. C. The horizontal separation from all property lines shall not be less than the height of the WECS, plus 10 additional feet. Building-mounted WECS shall have a setback distance equal to 1.25 times the height of the WECS from any overhead utility lines. Page - 5 s:\legal\our documents\ordinances\11\wecs ordinance council public hearing.doc d. Building-mounted WECS blade are spheres shall have a minimum five (5) foot clearance from any structure or any other impediment. (f) Principal Structure Required on Lot. A WECS shall be erected on a lot only after a principal structure has been constructed on the lot. The WECS shall serve the structures (principal or accessory) on the lot. (g) Sound Pressure Levels. Sound Pressure Levels shall not exceed fifty decibels (50dBA) measured from the property line closest to the WECS. If the existing ambient noise is suspected of exceeding 50dBA, that applicant shall establish and submit to the City, a continuous seventy- two (72) hour Ambient Noise Level measured from the property line closest to the proposed location of the WECS. The seventy-two (72) hour time span shall include at least one (1) twenty-four (24) hour reading during either a Saturday or Sunday. If the Ambient Noise Level established and submitted to the City is higher than fifty decibels (50dBA), the noise generated from the WECS may not exceed the established Ambient Noise Level by more than five decibels (5dBA). (h) Lights. Lighting not required by the FAA is prohibited. When lighting is required by the FAA, such lighting shall not exceed the minimum requirements of said administration. A tower structure may be artificially lighted ONLY with steady-burning red obstruction lights (FAA type L-810) or flashing red obstruction lights (FAA type L-864) flashing no faster than 20 flashes per minute. Flashing red obstruction lights (FAA type L-864) flashing faster than 20 flashes per minute, medium intensity flashing white obstruction lights (FAA type L-865 or L-866), high intensity flashing white lights (FAA type L-856 or L-857) or dual flashing red obstruction lights and medium intensity flashing white obstruction lights (FAA types L-864/L-865) may be used ONLY when the FAA specifies that the specific lighting pattern is the ONLY lighting pattern acceptable to promote aviation safety and when the FAA refuses the applicant's request for authorization to use the lighting required by the City herein. Upward lighting, flood lights or other lighting not strictly required by the FAA is prohibited. If lighting is required by the FAA, the applicant shall submit written evidence of this requirement as a part of the application. (i) Signs. No advertising or other signs shall be allowed on a WECS, other than operational warnings and instructions affixed by the manufacturer. 0) Prohibited in Easements. No portion of a WECS shall be placed in any public easement. (lc) Screening. WECS are exempted from the screening requirements' outlined in Section 35.13.9.13 of the Denton Development Code. (1) Electronic Interference. All WECS shall be filtered, shielded or otherwise designed and constructed so as not to cause electrical, radio frequency, television, and other communication signal interference. Should interference occur or be detected in the future, the WECS shall cease operation until said interference has be addressed and corrected by the WECS owner and operator. Page - 6 s:\legal\our documents\ordinances\11\wecs ordinance council public hearing.doc (m) Color. All WECS shall be white, grey, or silver color. The finish shall be a dull or matte finish so as to reduce the possibility of any glares or reflections and to minimize the visual obtrusiveness of the WECS. (n) Tower Design. A WECS tower shall be constructed in a monopole design of tubular steel and shall be self-supporting without the use of guy wires or other similar features. (o) Braking. All WECS shall be equipped with a manual and/or an automatic braking device capable of stopping the WECS operation in high winds. (p) Grounding and Shielding. All WECS shall be grounded and shielded to protect against natural lightning strikes and stray voltage, including the blades, in accordance with the Electrical Code. (q) Load Requirements. All WECS shall be designed to withstand loads including, but not limited to ice and wind, as detailed in the Building Code. (r) Location in Environmentally Sensitive Areas. If located within an Environmentally Sensitive Area ESA categories defined by Denton Development Code 35.17.4, WECS may only be allowed in Developed or Undeveloped floodplain, and must be located outside of any designated stream buffer or water related habitats. All WECS proposed to be installed within floodplains shall have approval of the City of Denton Floodplain Administrator or his/her designee and, where applicable, the U. S. Army Corps of Engineers. Applicants requesting such approval shall undertake all measures required by the Floodplain Administrator or his/her designee to protect the WECS from damage from potential flooding, and compensate for any loss of valley storage resulting from the installation of the WECS. Following installation, the applicant shall re- vegetate the site in accordance with the specifications of the Watershed Protection Manager, or designee. (s) Flicker and Blade Glint. WECS shall be sited to prevent the impact of blade glint and minimize the impact of shadow flicker any inhabited structures (except for the owner's) or City roadways. WECS found to be in violation of this condition shall be shut down until the flicker or glint problem is remedied. (t) Notice to Utility Company on Grid-Interconnected Systems. No WECS, proposed for interconnection to the power grid or electric utility infrastructure, may be installed until an agreement authorizing such interconnection has been finalized and approved by the electric utility providing service to the owner. Completely off-grid systems shall be exempt from this requirement only upon demonstrating, to the satisfaction of the electric utility serving the owner, that the system is truly off-grid and cannot inadvertently be tied into the electric utility grid. (u) City Building Codes / Safety Standards. To ensure the structural integrity of a WECS, the owner of such System must ensure that it is maintained in compliance with all provisions of the City of Denton's building code and zoning regulations. If, upon inspection, the City concludes that a WECS fails to comply with such codes and regulations, or otherwise constitutes a danger to persons or property, then upon written notice to the owner of the WECS, the owner shall have Page - 7 s:\legal\our documents\ordinances\11\wecs ordinance council public hearing.doc thirty (30) calendar days to bring the WECS into compliance with applicable standards. Failure to bring the WECS into compliance shall constitute grounds for the removal of the WECS at the owner's expense. This notice requirement shall not preclude immediate action by the Building Official as allowed by law, if required in the interest of public safety. (v) Certification by Engineer. The application shall include a standard drawing and engineer analysis of the WECS tower or building attachment, and certification by a professional mechanical, structural, or civil engineer. (w) Climbing Apparatus. No free-standing WECS shall include a ladder or any other tower climbing apparatus within 12 feet of the ground, unless such device is secured from access by a locked device approved by the Building Official. (x) Other Regulations. All WECS shall be adequately designed structurally, electrically, and in all other respects to accommodate the safety and general well being of the public. All WECS shall be required to meet all applicable regulations specified in the Building Code, Electrical Code, and any other applicable regulatory documents. All tower heights, plus the additional height associated with blades, must be in compliance with Federal Aviation Administration requirements. (y) Maintenance. All WECS shall be maintained at all times according to the manufacturer's specifications and all other applicable regulations including, but not limited to the Building Code and the Electrical Code. The appearance of a WECS shall also be maintained, including, but not limited to, painting, fencing/screening, and maintenance of structural integrity. (z) Removal of Unsafe Wind Energy Conversion System. WECS that have, due to damage, lack of maintenance or repair, or other circumstances, become unstable, lean significantly out-of- plumb, or pose a danger of collapse shall be removed or brought into repair within 30 days following notice given by the Building Official. If the Wind Energy System is not made safe or removed within 30 days of notification from the City, the City may remove the WECS and place a lien upon the property for the costs of the removal. However, at any time the Building Official may order immediate action to prevent or remove an imminent threat to public safety or property. (aa) Abandonment. (1) At such time as an owner abandons, discontinues, or is required to discontinue, the operation of a WECS, such owner must notify the Building Official of the City of Denton by certified U.S. mail of the proposed date of abandonment or discontinuation of operations. Such notice shall be given no less than 30 days prior to abandonment or discontinuation of operations. Owner shall also provide written notification to all interconnected electric service providers, in accordance with the terms of the governing interconnection agreement. (2) In the event that an owner fails to give such notice, the WECS shall be considered abandoned if the WECS is not used to generate electricity for a continuous period of Page - 8 s;\legal\our documents\ordinances\11\wecs ordinance council public hearing.doc twelve (12) months, unless the owner of said WECS provides proof of operation, on at least a quarterly basis, for the period that the WECS is being considered abandoned. (3) Upon abandonment or discontinuation of use, the person who constructed the WECS or the person who operated the WECS or the property owner shall physically remove the WECS within 90 days from the date of abandonment or discontinuation of use. "Physically remove" shall include, but not be limited to: (i) Removal of the tower, turbine and all other components of the WECS; and (ii) Transportation of the tower, turbine and all other components of the WECS to an appropriate disposal site. (4) The owner of the WECS shall restore the site to its pre-construction condition. (5) If a party as stated in Subsection (3) herein fails to remove a WECS in accordance with this Section, the City shall have the authority to enter the subject property and physically remove the WECS as a nuisance, consistent with statutory authority and the procedures established in Article XI, Chapter 17 of the Denton Code. Costs for the removal of the WECS shall be charged to the landowner of record in the event the City must remove the WECS, and the City may place a lien on the property for such costs of removal. SECTION 4. The use tables set forth in subchapter 35.5 of the Denton Development Code shall be amended to reflect the additional use restrictions reflected in the table below (existing use restrictions remain as written). The Code publisher may modify the manner in which these use allowances and prohibitions are presented and published, to maintain clarity and consistency with other Code provisions. General Regulations -RD-5 RC Maximum building height 65 feet 65 feet Maximum WECS height 75 feet 75 feet Page - 9 s:\legal\our documents\ordinances\11\wecs ordinance council public hearing.doc WECS (Building-mounted) I L(42) I SUP I SUP I SUP SUP SUP SUP P= Permitted, N=not permitted, SUP= Specific Use Permit Required, L(X) = Limited as defined in Section 35.5.8 General Regulations DR-1 DR-2 DC-N DC-G Maximum building height 40 feet 45 feet 100 feet/ 100 feet/ L(33) L(33) Maximum WECS height 55 feet 55 feet 110 feet/ L(33) 110 feet/ L(33) General Regulations CM-G CM-E Maximum building height 65 feet 65 feet Maximum WECS height 75 feet 75 feet Categories Institutional Land Use WECS (Free-standing Monopole Support SUP SUP SUP SUP Structure) WECS (Building-mounted) SUP SUP SUP SUP Page - 10 s:\legal\our documents\ordinances\11\wecs ordinance council public hearing,doc P= Permitted, N=not permitted, SUP= Specific Use Permit Required, L(X) = Limited as defined in Section 35.5.8 General Regulations RCR-1 RCR-2 RCC-N RCC-D Maximum building height 40 feet 50 feet 65 feet 100 feet Maximum WECS height 55 feet 60 feet 75 feet 110 feet General Regulations EC-C EC-1 Maximum building height 100 feet 65 feet Maximum WECS height 110 feet 75 feet General Regulations IC-E IC-G Maximum building height 100 feet 140 feet Maximum WECS height 110 feet 150 feet SECTION 5. Section 35.5.8 shall be amended to add the following limitations. L(41) = Lots where the proposed WECS will be located shall have a minimum lot area of two (2) acres. A maximum of one (1) WECS is permitted by right. Multiple WECS are permitted only with approval of a SUP. L(42) = Building-mounted WECS may not extend higher than ten (10) feet above where the WECS is mounted on the building, The height shall be measured from the base of the WECS where it is mounted on the building to the highest point of the arc of the blades' elevation. If the WECS does not use blades, then height is measured from the base of the WECS where is mounted on the building to the highest point of the WECS Page - 11 s;\legal\our documents\ordinances\11\wecs ordinance council public hearing.doc SECTION 6. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid by any court, such invalidity shall not affect the validity of other provisions or applications, and to this end the provisions of this ordinance are severable. SECTION 7. This ordinance shall become effective fourteen (14) days from the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the day of 2011 MARK A. BURROUGI,S; MANOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY. OV' APPROVED AS TO LEGAL FORM: Page -12 ANITA BURGESS, CITY ATTORNEY