9-6.1(b) Minimum Setback Requirements
a. Wind Energy Facility Setback:
WEF shall be setback from non participating property lines, Federal Highway, State Highway and/or Public Road for at least five thousand feet (5,000) and have a maximum height above highest adjacent grade of two hundred seventy five feet
1. Setback shall be measured from its outermost extension (whether blade tip, nacelle/turbine housing, or tower/pole edge) that is nearest the subject property line adjacent to private property, public or private right of way. There is a setback of
one thousand feet (1,000) from the Croatan National Forest, so as to minimize the adverse effect of catastrophic failure from debris and fire hazard to the Forest.
2. No portion of any wind turbine blade shall be closer than 25 feet from any part of the ground that surrounds any WEF.
b. NC Building Code Requirements:
All Structures within and associated with the WEF shall be designed and constructed to comply with the North Carolina Building Code(s) to include ertification of compliance by a Registered Professional Engineer that the Facility is designed and will be installed to meet the minimum wind design of 130 miles per hour.
9-6.1(c) Local Environmental Issues.
Environmental issues associated with Shadow Flicker, Blade Glint, catastrophic tower, turbine or blade failure or fire are perceived not to be a significant concern so long as the setback requirements required herein are adhered to.
a. Noise: No WEF or its generators, equipment, or apparatus shall produce noise above thirty-five (35dba) decibels for more than five (5) times within seven (7) consecutive days as measured at any property line of non-participating land owners, the applicant and/or owner shall shut down the WEF within one (1) business day of being informed to do so by the Town Planning Director or designee. The facility shall remain shut down until it can be demonstrated to the satisfaction of the Planning Director or designee that the facility can be operated so as to not exceed thirty-five (35dba) decibels as measured at any non participating property line.
b . Decommissioning or abandonment: Separate and apart from the Escrow account requirement herein, The owner/operator or their successors shall provide Surety for the guarantee of decommissioning, removal of the facilities and restoring the property back to an acceptable condition after removal.
1. Should the Owner/Operator decide to decommission any turbine, they shall send written notification to the Town, within thirty days of making such a decision.
2. If any turbine does not produce electricity for 180 consecutive days, said turbine is automatically considered to be decommissioned. It is the responsibility of the Owner/Operator to inform the Town when such a situation arises. The Owner/Operator may appeal that determination to the Board of Adjustment.
3. Absent any waver by the Board of Adjustment, the decommissioning process will start for any decommissioned turbine, within 120 days of it being decommissioned.
4. Any violation of the decommissioning procedure for any individual turbine will result in the loss of the Special Use Permit for the WEF, until the Board of Adjustment determines that the Owner/Operator is in compliance.
c. Surety For Decommissioning of WEFs:
1. The applicant shall place with the Town of Newport an acceptable letter-of-credit, bond, or other form of security that is sufficient to cover the cost of removal and restoration at the end of the WEF's useful life.
2. Such surety shall shall be at least five hundred thousand dollars ($500,000) for each wind turbine and seventy five thousand dollars ($75,000) for each associated building.
3. The surety shall be used by the Town to assure faithful performance of the terms and conditions of the permit, as well as to serve as a surety to prevent the taxpayers from bearing the cost of removal and restoration in the event of the abandonment or cessation of use.
4. The full amount of surety shall remain in full force and effect until any and all necessary site restoration is completed to restore the site to a condition comparable to that which existed prior to the WEF, as determined by the Newport Planning Department.
9-6.1(e) Real Property Value Protection Requirement
a. The WEF Owner (Applicant) or their successor shall assure The Town of Newport that there will be no loss in real property value due to the WEF.
b. To legally support this claim, the Applicant shall hereby consent to this Real Property Value Protection Agreement (“Agreement”). This Agreement provides assurance to nonparticipating real property owners near the WEF (not lessors to the Applicant), that they have some protections from real property values losses due to the WEF.
c. Applicant guarantees that the property values of all real property partially or fully within two (2) miles of the WEF, will not be adversely affected by the WEF. The two (2) miles shall be within the Newport Zoning and Planning Jurisdiction. Any real property owner(s) included in that area who believe that their property may have been devalued due to the WEF, may elect to exercise the following option:
d. All appraiser costs are paid by the Applicant, from the Escrow Account. Applicant and the property owner shall each select a licensed appraiser. Each appraiser shall provide a detailed written explanation of the reduction in value to the real property ("Diminution Value"), if any, caused by the proximity to the WEF. This shall be determined by calculating the difference between the current fair market value of the real property (assuming no WEF was proposed or constructed), and the fair market value at the time of exercising this option:
1. If the higher of the Diminution Valuations submitted is equal to or less than twenty five percent (25%) more than the other, the two values shall be averaged ("Average Diminution Value": ADV).
2. If one of the Diminution Valuations submitted is more than twenty five percent (25%)higher than the other, then the two appraisers will select a third licensed appraiser who shall present to Applicant and property owner a written appraisal report as to the Diminution Value for the real property. The parties agree that the resulting average of the two highest Diminution Valuations shall constitute the ADV.
3. In either case, the property owner may elect to receive payment from the WEF Owner of the ADV. Applicant is required to make this payment within sixty (60) days of receiving said written election from property owner, to have such payment made.
e. Other Agreement Conditions:
1. If a property owner wants to exercise this option, they must do so within ten (10) years of the WEF receiving final approval from the town.
2. A property owner may elect to exercise this option only once.
3. The applicant and the property owner may accept mutually agreeable modifications of this Agreement, however, the Applicant is not allowed to put other conditions on a financial settlement (e.g. confidentiality). If the property owner accepts some payment for property value loss, based on an alternative method, then that is considered an exercise of this option.
4. This Agreement applies to the property owner of record as of the first notification of intent to apply for a WEF permit by the Applicant to DENR, as required by HB-484, is not transferable to subsequent property owners.
5. The property owner of record as of the first notification of intent to apply for a WEF permit by the Applicant to DENR, as required by HB-484, must reasonably maintain the property from that time, until they choose to elect this option.
6. The property owner must permit access to the property by the appraisers, as needed to perform the appraisals.
7. The property owner must inform the appraisers of all known defects of the property as may be required by law, as well as all consequential modifications or changes to the property subsequent to the first notification of intent to apply for a WEF permit by the Applicant to DENR, as required by HB-484.
8. This Agreement will be guaranteed by the Applicant (and all its successors and assigns), for ten (10) years following the WEF receiving final approval from the Town, by providing a bond (or other surety), in an amount determined to be acceptable by the Town.
9. Payment by the Applicant (per 9-6.1(e)d.3.) not made within sixty (60) days will accrue an interest penalty. This will be twelve (12) percent annually, from the date of the written election from property owner.
10. For any litigation regarding this matter, all reasonable legal fees and court costs will be paid by the Applicant.