| August 10, 2010
2010-01-052-007
ADAMS COUNTY, ILLINOIS WIND ENERGY CONVERSION SYSTEMS REGULATIONS An Ordinance to repeal and replace the Adams County, Illinois Wind Energy Conversion System Regulations adopted by the Adams County Board on January 12 th, 20102 August 10, 2010ADAMS COUNTY, ILLINOIS WIND ENERGY CONVERSION SYSTEMS REGULATIONS I. INTRODUCTION II. DEFINITIONS III. APPLICABILITY IV. PROHIBITION V. PROCEDURE VI. SITING APPROVAL APPLICATION VII. DESIGN AND INSTALLATION VIII. OPERATION IX. PUBLIC PARTICIPATION X. LIABILITY INSURANCE XI. DECOMMISSIONING PLAN XII. REMEDIES XIII. PERMIT TRANSFER XIV. FEE SCHEDULE AND PERMIT REVOCATION XV. INDEMNIFICATION, REIMBURSEMENT AND HOLD HARMLESS AGREEMENT XVI. VARIANCE AND MODIFICATION XVII. INTERPRETATION XVIII. SEVERABILITY XIX. REPEAL XX. CERTIORARI PROCEDURE XXI. EFFECTIVE DATE 3 August 10, 2010 I. INTRODUCTION A. Title This Ordinance shall be known, cited and referred to as the Adams County Wind Energy Siting Ordinance. B. Purpose This Ordinance is adopted for the following purposes: 1. To assure that any development and production of wind-generated electricity in Adams County is safe and effective; 2. To facilitate economic opportunities for local residents; II. DEFINITIONS A. "Applicant" means the entity or person who submits to the County, pursuant to Section V of this Ordinance, an application for the siting of any WECS or Substation. B. "Fall Zone" means the area, defined as the farthest distance from the WECS Tower base, in which a WECS Tower will collapse in the event of a structural failure. This area is the total height of the structure plus length of blade. C. "Feeder Line" means any power line that carries electrical power from one or more wind turbines or individual transformers associated with individual wind turbines to the point of interconnection with the electric power grid. D. "Financial Assurance" means reasonable assurance from a credit worthy party, examples of which include a surety bond, trust instrument, cash escrow, or irrevocable letter of credit. E. "Meteorological Tower" means those towers which are erected primarily to measure wind speed and direction plus other data relevant to siting a WECS Project. For purposes of this ordinance, Meteorological Towers do not include towers and equipment used by airports, the Illinois Department of Transportation, or other similar applications or government agencies, to monitor weather conditions. F. "County Board" means the Adams County Board. G. "Operator" means the entity responsible for the day-to-day operation and maintenance of the WECS, including any third party subcontractors. H. "Owner" means the entity or entities with an equity interest in the WECS(s), including their respective successors and assigns. Owner does not mean (i) the property owner from whom land is leased for locating the WECS (unless the 4 August 10, 2010 property owner has an equity interest in the WECS); or (ii) any person holding a security interest in the WECS(s) solely to secure an extension of credit, or a person foreclosing on such security interest provided that after foreclosure, such person seeks to sell the WECS(s) at the earliest practicable date. I. "Primary Structure" means, for each property, the structure that one or more persons occupy the majority of time on that property for either business or personal reasons. Primary structure will be on a permanent foundation, served with electricity, potable water, and sewer or septic system. Primary Structure includes structures such as residences, commercial buildings, schools, churches, hospitals, retail buildings and day care facilities. Primary Structure excludes ancillary structures which are not used for residential purposes such as hunting sheds, storage sheds, pool houses, unattached garages and barns. J. "Property Line" means the boundary line of the area over which the entity applying for a WECS permit has legal control for the purposes of installation of a WECS. This control may be attained through fee title ownership, lease, easement, or other appropriate contractual relationship between the project developer or Owner and landowner. K. "Public Conservation Lands" means land owned in fee title by state or federal agencies and managed specifically for conservation purposes, including but not limited to state and federal parks, state and federal wildlife management areas, state scientific and natural areas, and federal wildlife refuges and waterfowl protection areas. Public conservation lands do not include private lands upon which conservation easements have been sold to government agencies or non-profit conservation organizations. Public conservation lands also do not include private lands for which the owners have entered into contractual relationships with government or non-profit conservation organizations for conservation purposes. L. "Structural Engineer" means a qualified individual who is licensed as a structural engineer in the State of Illinois. M. "Substation" means the apparatus that connects the electrical collection system of the WECS(s) and increases the voltage for connection with the utility's transmission lines. N. "Transmission Line" means those electrical power lines that carry voltages of at least 69,000 volts (69 KV) and are primarily used to carry electrical energy over medium to long distances rather than directly interconnecting and supplying electric energy to retail customers. O. "Wind Energy Conversion System" ("WECS") means all necessary devices that together convert wind energy into electricity, including the rotor, nacelle, generator, WECS Tower, electrical components, WECS foundation, transformer, and electrical cabling from the WECS Tower to the Substation(s). 5 August 10, 2010 P. "WECS Project" means the collection of WECSs and Substations as specified in the siting approval application pursuant to Section V of this Ordinance. Q. "WECS Tower" means the support structure to which the nacelle and rotor are attached. R. "WECS Tower Height" means the distance from the rotor blade at its highest point to the top surface of the WECS foundation. S. "Wind Turbine" means any piece of electrical generating equipment that converts the kinetic energy of moving wind into electrical energy through the use of airfoils or similar devices to capture the wind. III. APPLICABILITY A. This Ordinance governs the siting of WECSs and Substations that generate electricity to be sold to wholesale or retail markets. B. Owners of WECSs with an aggregate generating capacity of 0.5MW or less who locate the WECS(s) on their own property for on site use are not subject to this Ordinance. IV. PROHIBITION No WECS or Substation governed by Section III A. of this Ordinance shall be constructed, erected, installed, or located within the County, unless prior siting approval has been obtained for each individual WECS and Substation pursuant to this Ordinance. V. PROCEDURE A. Filing of an Application The Applicant for a WECS approval shall file twenty-five (25) copies of application, including ten (10) full-size copies of exhibits and fifteen (15) reduced copies of all exhibits, with the County Clerk, together with the appropriate site review application fee. The Applicant is to provide up to ten (10) additional copies of the application to the County upon request. B. Fee Schedule Upon submittal of the application for a WECS, the Applicant shall submit a non-refundable check to Adams County in the amount of $50,000 which funds will be utilized to review and assess the application. Should the actual costs to the County exceed $50,000, the Applicant shall be responsible for those additional costs, including, but not limited to the costs of outside attorneys, hearing officer, and consultants (e.g. noise engineers, traffic engineers, and environmental consultants) and shall remit additional funds to the County within 15 days of 6 August 10, 2010 receipt of a request from the County. The County will submit invoices in a timely manner. The County will provide itemized records detailing fund distributions upon request by the Applicant. Such requests may not occur more than one time per calendar month. C. County Clerk Responsibilities The County Clerk upon receiving said application shall do the following: 1. Accept and date stamp the application as filed. The date stamp of the County Clerk should be considered the official filing date for all time limit purposes. Receipt and acceptance of an application by the County Clerk is pro forma, and does not constitute an acknowledgment that the Applicant has complied with the County ordinance. 2. The County Clerk shall forward the application to the County Engineer for a determination of completeness. 3. The County Clerk shall make available a copy of the application and public record concerning the application for public inspection during the normal business hours of the County offices. Additionally, the County Clerk shall provide to any person so requesting, copies of the application or the public record, upon payment by such persons for the actual cost of reproduction. D. Determination of Completeness After the filing of an application the County Engineer shall make a preliminary determination of completeness of the application. If, in the County Engineer’s opinion, the application has addressed the required elements of an application it will be forwarded to the Transportation, Building and Technology Committee and the County Board to conduct a public hearing on the application. If the application is incomplete, the Applicant will be so notified and the application will not proceed to hearing unless good cause is shown for the incompleteness. E. Notice The Applicant must provide a complete list of all properties adjacent to a proposed WECS or within one-half mile of a property upon which a proposed WECS is to be located. The Applicant shall have a notice issued to every owner of those properties by certified mail, registered mail, or personal service at the last known address of such owner of property as identified by the County tax records. Said notice will identify the nature of the proposed use and the date that a public hearing shall occur on the proposed use in front of the County Board and that any person may file an appearance to participate in that hearing and present witnesses at least five days before the hearing commencement date. Those notices must be served at least 15 days before the public hearing shall commence and no earlier than 30 days before the hearing shall commence. The Applicant shall provide 7 August 10, 2010 evidence of notification or evidence of a "good faith" effort to contact the property owner prior to the hearing if requested by the County. Said hearing notice shall also be published in a circulation of general publication at least three times before the hearing commences with the first publication occurring at least 30 days before the hearing and at least one publication occurring between 7 and 15 days before the hearing commences. F. Hearing Officer The County Board will appoint a hearing officer to preside over the WECS hearing. The hearing officer shall preside over the public hearing; establish a record of the proceedings using a certified court reporter, make decisions concerning the admission of the evidence and the manner in which the hearing is to be conducted. The County Board may request that the hearing officer draft a recommendation and proposed findings. At the commencement of the hearing people wishing to provide sworn testimony or unsworn public comment will be identified by a sign in sheet. G. Entering an Appearance at Hearing and Submitting Exhibits The hearing officer, any County Transportation, Building and Technology Committee member and any person who enters an appearance with the County at least seven days before the hearing will have the opportunity to question witnesses. Members of the public who do not enter an appearance at least seven days before the hearing may submit their questions for witnesses to the hearing officer who at his or her discretion may ask them of the witness. Any person or persons may appear at the hearing through an attorney licensed in Illinois. Any person offering sworn testimony will be subject to questioning. People offering public comment only (without being sworn in) will not be subjected to questioning. The hearing officer may limit the time and duration of questioning and will rule on any objections. At least five copies of any exhibits which will be used in testimony or questioning must be furnished by the person offering such exhibit. If the hearing officer is requested by the Transportation, Building and Technology Committee to make a recommendation and proposed findings such shall be provided within three business days of the completion of the hearing and submitted to the Transportation, Building and Technology Committee. H. Committee and Board Action The Transportation, Building and Technology Committee will consider the following facts: 1. Whether the application and proposed WECS Project substantially complies with the WECS ordinance. 8 August 10, 2010 2. Whether the proposed WECS Project is sufficiently protective of the public health, safety and welfare. Within 10 days of conclusion of the hearing the Transportation, Building and Technology Committee shall tender its findings and recommendations to the County Board. The committee may recommend approval, approval with request for additional information or clarification, approval with conditions or denial. Within 30 days of the conclusion of the public hearing the County Board will meet in public session and render its decision. The County Board may approve, approve with conditions, or deny the application. I. Refiling Any Applicant, owner or operator whose WECS project application is denied may not refile a substantially similar application for one year. If the County Engineer determines an application is substantially similar to one the Applicant filed within one year it will not be forwarded to the Transportation, Building and Technology Committee or the County Board for review. VI. SITING APPROVAL APPLICATION A. Form of Applications: 1. All applications shall be in writing on paper of eight and one-half inches by eleven inches (8 ½" by 11"), eight and one-half inches by fourteen inches (8 ½" x 14"), or eleven inches by seventeen inches (11" x 17"). For legibility, full-sized exhibits shall be on minimum ANSI D size paper. 2. The pages of the application shall be consecutively numbered, and all exhibits clearly marked and identified. 3. The application including exhibits or graphic presentations shall also be furnished in an electronic format suitable for reproduction for public dissemination and for posting on the Adams County Website. B. The siting approval application shall contain or be accompanied by the following information: 1. An executed Host Agreement must be appended to, and included as part of, any WECS application filed with the County. The content of said Host Agreement will be discussed and negotiated between the Applicant and the County’s appointed counsel or representatives and will address issues including, but not limited to, payments in lieu of taxes (Example attached as Exhibit A), economic issues, renewable energy credit sharing, carbon credit sharing, reimbursement of County expenses including consultants, experts and outside attorneys’ fees. 9 August 10, 2010 2. A WECS Project Summary, including: (1) a general description of the project, including (i) its approximate overall name plate generating capacity, (ii) the potential equipment manufacturer(s), (iii) type(s) of WECS(s), (iv) number of WECS(s), and name plate generating capacity of each WECS, (v) the maximum height of the WECS Tower(s) and maximum diameter of the WECS(s) rotor(s), and (vi) the general location of the project; and (2) a description of the Applicant, Owner and Operator, including their respective business structures. 3. The name(s), address(es), and phone number(s) of the Applicant(s), Owner and Operator, and all property owner(s), if known, and documentation demonstrating land ownership or legal control of the property. 4. A Site Plan for the installation of WECS(s) showing the planned location of each WECS Tower, substation, anchor bases, and service roads, Primary Structure(s), Property Lines (including identification of adjoining properties), all proposed structures, public access roads and turnout locations, Substation(s), electrical cabling from the WECS Tower(s) to the Substation(s), ancillary equipment, and third party transmission lines. Site Plan information not available at the time of application but to be obtained prior to construction or through an ALTA survey shall be provided in a detailed list. Site Plan information shall be on Illinois State Plane Coordinate System: NAD 1983 State Plane Illinois West FIPS 1202 Feet. Site plan information shall also be supplied in an electronic format suitable for incorporation into the Adams County Geographic Information System database. Information to be provided should include but not limited to: tower locations and heights, road easements, substation locations, and other non-proprietary information. 5. The legal description of each proposed tower and substation location. 6. All proposed setback dimensions. 7. Topographic site information for the subject property and the adjacent properties within one-fourth (1/4) mile of the property line of the subject property indicating contours in ten foot (10’) intervals. 8. Existing structures on properties within one-fourth (1/4) mile of the property. 9. All existing and proposed underground and aboveground utilities and identification of all communication towers within two miles of the proposed WECS. 10 August 10, 2010 10. All rights of way, wetlands, flood plains, drainage ditches, scenic and natural areas and wooded areas on properties under contract with the Applicant, and public conservation lands on properties within 1,500 feet of a proposed WECS. 11. Ingress and egress from the site as proposed during construction and thereafter, which indicates: a. Proposed road surface and cover. b. Dust control. c. Width and length of access route and location of ingress/egress. d. Road maintenance progress or schedule for proposed use of land. 12. Certified easements, contracts, waivers, and option agreements for proposed use of the land. 13. Notice by registered mail or certified mail to residential and commercial microwave communication users within a 2.5 mile radius of the subject property informing them of the proposed WECS. 14. Utility interconnection details and a copy of written notification to the utility company requesting the proposed interconnection. 15. Fire protection plan for the construction and the operation of the facility. 16. Revegetation plan of the areas that will be disturbed. 17. Description of hours of operation for construction and maintenance of the facility, numbers of employees and type of traffic expected to be generated from the site. 18. Public road routes. 19. A permit application filed with the Federal Aviation Administration; 20. A proposed Decommissioning Plan for the WECS project; 21. All required studies, reports, certifications, and approvals demonstrating compliance with the provisions of this Ordinance; and 22. Any other information normally required by the County as part of its permitting requirements for siting buildings or other structures, if applicable. C. The Applicant shall notify the County of any changes to the information provided in Section V.D. above that occurs while the siting approval application is pending. 11 August 10, 2010 VII. DESIGN AND INSTALLATION A. Design Safety Certification and Conformance to Codes and Standards 1. WECSs and all components shall conform to all applicable industry standards, including those of the American National Standards Institute ("ANSI") and the International Electrical Commission. Applicants shall submit certificates of design compliance that equipment manufacturers have obtained from Underwriters Laboratories ("UL"), Det Norske Veritas ("DNV"), Germanischer Lloyd Wind Energie ("CGL"), or an equivalent third party. The WECS shall comply with all applicable local and county codes for electrical, mechanical and structural components of the facility. All documents provided for review shall be stamped by a professional engineer. 2. Following the granting of siting approval under this Ordinance, a Structural Engineer shall certify, as part of the permit application that the foundation and tower design of the WECS is within accepted professional standards, given local soil and climate conditions. B. Controls and Brakes All WECS shall be equipped with manual and automatic controls and mechanical brakes to limit rotation of the blades to a speed below the design limits of the WECS. A professional engineer or authorized factory representative must certify that the rotor and overspeed control design and fabrication conform to good engineering practices. No changes or alterations from the certified design shall be permitted unless accompanied by professional engineer or authorized factory representative’s statement or certification and approved by the company. C. Electrical Lines All electrical wires and lines connecting WECS to other WECS or substation shall be installed underground to the greatest extent possible. D. Color, Finish and Appearance The tower and the blades of the WECS shall be uniform in style and color and shall be white or gray or another unobtrusive color. The finish of the tower and the blades shall be matte and nonreflective. The towers and blades shall be uniform in direction of blade rotation. Any on site buildings shall be designed such that they are unobtrusive to minimize the industrial character of the project. All colors, finishes and design shall conform to all applicable FAA requirements. Except for required warnings and tower identification, no lettering, company insignia, advertising or graphics shall be on any part of the tower, hub or the blades. Standard company insignia may be placed on the nacelle of the WECS. 12 August 10, 2010 E. Warnings and Tower Identification Signs warning of the high voltage associated with the WECS shall be posted at every entrance to the WECS, at the base of all pad mounted transformers and substations. Visible, reflective, colored objects such as flags, reflectors or tape shall be placed on the anchor points of guywires, if any, and along the guywires up to a height of not less than eight feet (8’) from the ground. A sign that provides emergency contact information, such as phone number, shall be posted near the tower and the operations and maintenance building and each tower shall have posted a unique number for identification purposes. F. Setback Requirements 1. All WECS Towers shall be set back at least 1.1 times the WECS Tower Heights from any Primary Structure on a parcel of real property which is participating in a WECS project by leasing, contracting, owning, selling, or allowing any portion of said real property to be used for the placement of a WECS. The distance for the participating landowner setback shall be measured from the point of the Primary Structure foundation closest to the WECS Tower to the center of the WECS Tower foundation. All WECS shall be set back from a Primary Structure on non-participating lands by at least 1,320 feet. The owner of the Primary Structure may waive this setback requirement; but in no case shall a WECS Tower be located closer to a Primary Structure than 1.10 times the WECS Tower Height or within the Fall Zone of the WECS Tower. All WECS shall be set back at least 1,500 feet from school property lines unless waived by the school district. 2. All WECS Towers shall be set back a distance of at least 1.1 times the WECS Tower Height from public roads, third party transmission lines, and communication towers. The County may waive this setback requirement. 3. All WECS Towers shall be set back a distance of at least 1.5 times the WECS Tower Height or the Fall Zone, whichever is greater from adjacent Property Lines. The affected adjacent property owner may waive this setback requirement. 4. All WECS Towers shall be set back a distance of at least 1.1 times WECS Tower Height from the Property Line of any Public Conservation Lands, and a distance of at least 1500 feet from any river bluff located on public or private property. 5. The Applicant will need to obtain a variance from the County upon waiver by either the County or property owner of any of the above setback requirements. Any waiver of any of the above setback 13 August 10, 2010 requirements shall run with the land and be recorded as part of the chain of title in the deed of the subject property. G. Compliance with Additional Regulations Nothing in this Ordinance is intended to preempt other applicable state and federal laws and regulations. H. Use of Public Roads 1. An Applicant, Owner, or Operator proposing to use any County, municipality, township or village road(s), for the purpose of transporting WECS or Substation parts and/or equipment for construction, operation, or maintenance of the WECS(s) or Substation(s), shall: a. Identify all such public roads; and b. Obtain applicable weight and size permits from relevant government agencies prior to construction. c. Adhere to any temporary postings due to weather conditions 2. To the extent an Applicant, Owner, or Operator must obtain a weight or size permit from the County, municipality, township or village to use a public road, the Applicant, Owner, or Operator shall: a. Enter into a road use and repair agreement with the County and respective municipalities, township or village. b. Conduct a pre-construction baseline survey to determine existing road conditions for assessing potential future damage; c. Provide a road repair plan to ameliorate any and all damage, installation or replacement of roads, streets, bridges, intersections, culverts, storm sewers, or public rights of way d. The Applicant shall provide a letter of credit or surety bond in an amount and type approved by the County Engineer and Township Road District Commissioner to assure compliance with the road repair plan and road agreement. I. Drainage Systems The Applicant shall be responsible for repairing, in a timely fashion, any damage caused to public drainage systems by the construction, operation or maintenance of WECS. Financial assurances in the form of cash or an escrow account, surety bond, or a letter of credit in a form and amount acceptable to the County Engineer shall be posted to assure compliance with this section. 14 August 10, 2010 J. Height The maximum WECS Tower Height shall not exceed 550 feet. K. Power Lines All electrical control wiring and power lines less than 69kv shall be wireless or not aboveground to the extent possible except where wind farm collector wiring is brought together for connection to the transmission or distribution network, adjacent to that network. L. Access Roads The Applicant shall minimize the number and width of access roads, minimize cut and fill on sloping terrain and use natural terrain where feasible for these access points. M. Blade Clearance The vertical distance from the grade to the tip of the wind turbine blade when the blade is at its lowest point must be at least thirty five feet (35’). N. Lighting Tower lighting shall meet all applicable FAA regulations. The Applicant shall seek leave from the FAA to utilize the least intrusive lighting possible. O. Noise Levels The sound pressure level generated by a WECS shall comply with all applicable Illinois Pollution Control Board noise regulations. P. Shadow Flicker The Applicant shall have an analysis conducted by a qualified professional of the expected potential shadow flicker. No turbine shall be located at an area that will result in shadow flicker at a primary structure on a non-participating landowner property of more than 20 hours per year. Q. Environmental Impact The Applicant shall have a third-party qualified professional conduct analysis to identify and assess any potential impacts on the natural environment including wetlands and other fragile ecosystems, historical or cultural sites and antiquities. The Applicant shall take appropriate measures to minimize, eliminate or mitigate adverse impacts identified in the analysis. The Applicant shall identify and evaluate the significance of any effects or concerns that will remain after mitigation efforts. 15 August 10, 2010 R. Landscaping Applicant shall minimize the disruption of natural environment, retain existing vegetation and native plant species to the maximum extent feasible and replant with native vegetation. S. Climb Prevention All WECS shall be designed to prevent unauthorized access to electrical and mechanical components or access to the towers on the site. A monopole with an internal ladder and locked access door is preferred and guy wired towers are disfavored. All towers shall not be climbable from the ground to fifteen feet (15’) aboveground and all access doors to towers and equipment shall be lockable. T. Avian and Wildlife Impact The Applicant shall have a third party, qualified professional conduct an analysis to identify and assess any potential impacts on wildlife and endangered species. The Applicant shall take the appropriate measures to minimize, eliminate or mitigate adverse impacts identified in the analysis. The Applicant shall identify and evaluate the significance of any net effects or concerns that will remain after mitigation efforts. U. JULIE Membership Applicant, after completion of construction, will become a member of the Joint Utility Locating Information for Excavation ("JULIE"), to identify the location of any underground electrical lines, to provide a list of the same to the County, and to register the same with JULIE. V. Construction Hours Applicant will undertake all construction activities associated with the Project only between the hours of 6:00 a.m. and 9:00 p.m. County Engineer approval must be acquired before making any other change in work hours due to construction schedule requirements which will not be unreasonably withheld. W. Stormwater Prevention Applicant further agrees to provide a final Stormwater Pollution Prevention Plan for the Project to Adams County prior to the start of construction and obtain any other permits required by State and Federal government agencies. X. Underground Cable Warnings All cables, except where installed by trenchless methods, shall have an underground warning tape buried a minimum 24 inches below grade and a minimum of 12 inches above cable in the same trench. The warning tape shall be 16 August 10, 2010 6" wide polyethylene plastic, shall be red in color, and shall have the appropriate warning stenciled on it. Y. Agency Permits Applicant shall obtain all required permits from other governmental agencies prior to commencing construction or as otherwise required by the applicable laws and regulations. Copies or evidence of such permits shall be submitted to the County on or before issuance of the first Permit for an individual wind tower. Permits shall be obtained from Adams County for the wind towers. Z. Substation Noise Any substation to be constructed and operated as part of the Project shall utilize commercially available and reasonable sound-attenuation measures to minimize potential noise impacts for surrounding and nearby properties, the approval of which shall not be unreasonably withheld by the County. Substation lighting shall be limited to that necessary to provide safety and security. Normal substation nighttime operation shall utilize minimal lighting. VIII. OPERATION A. Maintenance 1. The Owner or Operator of the WECS must submit, on an annual basis, a summary of the operation and maintenance reports to the County. In addition to the above annual summary, the Owner or Operator must furnish such operation and maintenance reports as the County reasonably requests. 2. Any physical modification to the WECS that alters the mechanical load, mechanical load path, or major electrical components shall require re-certification under Section VI(A)(l) of this Ordinance. Like-kind replacements shall not require re-certification. Prior to making any physical modification (other than a like-kind replacement), the Owner or Operator shall confer with a relevant third-party certifying entity identified in Section VI(A)(l) of this Ordinance to determine whether the physical modification requires re-certification. 3. An Applicant or successor in interest shall have the facility inspected annually by third party qualified wind power professionals at their own expense. The third party qualified wind power professional shall be subject to the approval of the Adams County Engineer. Within 30 days of the inspection a copy of any report must be provided to the Adams County Engineer. The WECS may not operate unless a certificate is provided to the Adams County Engineer indicating that the annual maintenance has been completed and the facility is in good working 17 August 10, 2010 condition. Failure to provide this annual certification may cause the revocation of the operating permit. B. Signal Interference 1. WECS shall not be installed in any location where its proximity to existing fixed broadcast, retransmission or reception antennas for radio, television or wireless phone or other personal communication systems would produce electromagnetic interference with signal transmission or reception unless the Applicant provides a replacement signal to the affected party that will restore reception to at least the level present before operation of the wind energy system. WECS shall not be installed in any location within the line of sight of an existing microwave communications link where operation of the wind energy system is likely to produce electromagnetic interference in the link’s operation unless the interference is insignificant. The Applicant shall provide the project summary and site plan to all microwave transmission providers, and all communication tower operators with five miles of any WECS to address potential conflicts. 2. If, after construction of the WECS, the Owner or Operator receives a written complaint related to interference with local broadcast residential television, the Owner or Operator shall take reasonable steps to respond to the complaint. C. Crop Dusting Applicant will make available a map to all aerial sprayers showing exact location of all turbines and meteorological towers including the exact GPS coordinates, township, section number and tower heights. D. Coordination with Local Fire Department 1. The Applicant, Owner or Operator shall submit to the local fire department a copy of the Site Plan. 2. The Applicant will communicate with any fire department(s) providing fire protection for the areas of the proposed WECS and upon request by the fire department cooperate in the development or revision of the fire department's emergency response plan. 3. The Applicant shall where reasonably possible link the WECS project’s fire detection systems with the appropriate fire departments. 4. Nothing in this section shall alleviate the need to comply with all other applicable fire laws and regulations. 18 August 10, 2010 E. Materials Handling, Storage and Disposal 1. All solid wastes related to the construction, operation and maintenance of the WECS shall be removed from the site promptly and disposed of in accordance with all federal, state and local laws. 2. All hazardous materials related to the construction, operation and maintenance of the WECS shall be handled, stored, transported and disposed of in accordance with all applicable local, state and federal laws. F. Complaint Resolution The Applicant shall develop a process to resolve any complaints that may arise from neighboring property owners during the construction and operation of the WECS. The process shall use an independent mediator and shall include a time limit for acting on a complaint that is received. The process shall not preclude the local government from acting on a complaint. The Applicant shall provide to the nearby residents a toll-free phone number for complaints during the construction of the facility if a problem should arise. Applicant will respond to all complaints from persons directly affected by the WECS project within 48 hours, will attempt to resolve all complaints in a prompt and responsible manner, will keep a log of all complaints and the method of resolution, will make the log available to County, and will agree to participate in a non-binding mediation for complaints that are not resolved with the cost of such to be paid directly by Applicant. G. Federal, State and Local Requirement Compliance The Applicant shall comply with all applicable Federal, State and Local laws and regulations with authority to regulate WECS. H. County Access Applicant will allow County officials or their agents, who are in compliance with the safety and operations requirements associated with the Project, to investigate any issues arising from the Project at and by entering the Project area and providing any requested documentation. Such access shall be granted upon reasonable notice by the County officials or their agents. IX. PUBLIC PARTICIPATION Nothing in the Ordinance is meant to augment or diminish existing opportunities for public participation. 19 August 10, 2010 X. LIABILITY INSURANCE The Owner or Operator of the WECS(s) shall maintain a current general liability policy covering bodily injury and property damage with limits of at least $5 million per occurrence and $5 million in the aggregate at all times. The County and all affected Road Districts must be listed as additional insured. XI. DECOMMISSIONING PLAN Prior to receiving siting approval under this Ordinance, the Applicant, Owner, and/or Operator must provide a Decommissioning Plan to ensure that the WECS Project is properly decommissioned. The Decommissioning Plan shall include: A. An acknowledgement by the Applicant that if WECS is out of service for a period of 180 days it will be deemed non-operational and removal of the WECS must commence; B. An acknowledgement that within 180 days or within a negotiated time frame dependent upon extenuating circumstances (i.e. seasonal weather, available labor and equipment) of being determined non-operational the following must be removed: 1. All wind towers above ground improvements and outside storage. 2. Foundations, pads and electrical lines and reclaim the site to a depth of four feet (4’) below the surface of the ground. 3. Any hazardous materials or contaminated soils from the WECS disposed of in accordance with federal and state law. C. Provisions for the restoration of the soil and vegetation; D. An estimate of the decommissioning costs certified by a Professional Engineer to be updated every five years. Such estimate must explicitly detail the cost before considering the protected salvage value of out of service WECS. E. Financial Assurance, posted in cash, escrow account, surety bond or irrevocable letter of credit, secured by the Owner or Operator, for the purpose of adequately performing decommissioning, in an amount equal to 100% of the Structural Engineer's certified estimate of the decommissioning costs without reducing said amount for salvage value; F. Identification of and procedures for County access to Financial Assurances; G. A provision that the terms of the Decommissioning Plan shall be binding upon the Owner or Operator and any of their successors, assigns, or heirs; 20 August 10, 2010 H. A provision that the County shall have access to the site, pursuant to reasonable notice, to effect or complete decommissioning. XII. REMEDIES A. The Applicant's, Owner's, or Operator's failure to materially comply with any of the above provisions shall constitute a default under this Ordinance. B. Prior to implementation of the applicable County procedures for the resolution of such default(s), the appropriate County body shall first provide written notice to the Owner and Operator, setting forth the alleged default(s). Such written notice shall provide the Owner and Operator a reasonable time period, not to exceed 180 days, for good faith negotiations to resolve the alleged default(s). C. If the County determines in its discretion, that the parties cannot resolve the alleged default(s) within the good faith negotiation period, then applicable County ordinance provisions addressing the resolution of such default(s) shall govern. XIII. PERMIT TRANSFER The WECS Permit may be transferred by the Applicant only upon the transferee’s execution and delivery to the County Engineer of a letter agreeing to be bound by the foregoing conditions. XIV. TERMS AND LIMITATIONS OF PERMIT A. Permit Effective Date The Certificate of Permit shall become effective upon approval by the County Board. B. Failure to Commence Construction or Operation Unless otherwise stated in the conditions of the Certificate of Permit, initial construction work on the WECS Project shall commence within twelve (12) months of the effective date of the Certificate of Permit unless such time period is extended by the County Board. If no extension of time is granted, the Certificate of Permit shall immediately terminate upon expiration of the twelve (12) month period. C. Conditions The County may impose any conditions to a permit to further the purposes and intent of this ordinance or minimize non-material impacts on citizens or other property in the area. 21 August 10, 2010 D. Revocation of Certificate of Permit Upon finding a material violation of the terms of the Certificate of Permit, the County Board shall have the authority to revoke the Certificate of Permit after notice to the Applicant/Permittee and after affording the Applicant/Permittee an opportunity to be heard. XV. INDEMNIFICATION, REIMBURSEMENT AND HOLD HARMLESS AGREEMENT The application shall include an agreement in a form acceptable to the County by the Applicant, Owner or Operator to the Applicant to indemnify and hold harmless the County and the County’s officers, Board members, agents and employees ("indemnitees") from and against any and all damages, costs, remediation, claims, demands, lawsuits, appeals, losses, attorneys’ fees and expenses to the extent arising out of or resulting from a permit authorizing the development, construction, building and operation of a WECS or WECS Project. XVI. VARIANCE AND MODIFICATION: A. Standards for Granting Variances 1. Where an Applicant demonstrates that a provision of this Ordinance would cause unnecessary hardship, delay or impediments to the development of a WECS Project if strictly adhered to, and where, in the opinion of the County Engineer and County Board, because of topographical or other conditions peculiar to the site, a departure may be made without destroying the intent of such provisions, the County Board may authorize a variance, if the variance complies with the following provisions: a. The requested variance is required for the development, construction, operation or decommissioning of the WECS Project, and the failure to obtain the requested variance would result in a practical difficulty or unnecessary hardship for the Applicant; b. The granting of the requested variance will not be materially detrimental or injurious to any adjacent property; c. The granting of the requested variance will not violate the general spirit and intent of this Ordinance. 2. Any variance thus authorized is required to be entered in the minutes of the County Board meeting, and the reasoning on which the variance was justified must be described in the minutes as well. 22 August 10, 2010 B. Application for Variance 1. An Applicant for a variance shall file a request for a variance with the County Clerk within at least 21 days prior to the next regularly-scheduled County Board meeting. The County Clerk shall place the Applicant’s request on the agenda for the next County Board meeting. 2. The burden of proof shall rest with the Applicant to clearly establish that the requested variance satisfies the criteria for granting such a variance under this Ordinance. C. Conditions In granting a variance, the County Engineer and County Board may impose such conditions and restrictions upon the property benefiting from the variance as may be necessary to reduce or minimize any potentially negative impacts on any adjacent properties, and to carry out the general purpose of this Ordinance. XVII. INTERPRETATION The provisions of these regulations shall be held to the minimum requirements adopted for the promotion and preservation of public health, safety and general welfare of County of Adams. These regulations are not intended to repeal, abrogate, annul or in any manner interfere with existing regulations or laws of the County of Adams nor conflict with any statutes of the State of Illinois, except that these regulations shall prevail in cases where these regulations impose a greater restriction than is provided by existing statutes, laws or regulations. XVIII. SEVERABILITY If any section, paragraph, clause, phrase or part of this Ordinance is for any reason held invalid by any court or competent jurisdiction, such decision shall not affect the validity of the remaining provisions of these regulations, and the application of those provisions to any persons or circumstances shall not be affected thereby. XIX. REPEAL All ordinances and regulations and amendments thereto enacted and/or adopted by the County Board that are inconsistent with the provisions of this Ordinance are hereby repealed, as of the effective date of this Ordinance. The repeal of any prior ordinance or its amendments does not affect or impair any act done, offense committed or right accruing, accrued or acquired or liability, penalty, forfeiture or punishment incurred prior to the time enforced, prosecuted or inflicted. 23 August 10, 2010 XX. CERTIORARI PROCEDURE In any decision by the County Board under this Ordinance, any person aggrieved may petition the Circuit Court of Adams County, Illinois, for a writ of certiorari as provided by law. XXI. EFFECTIVE DATE This Ordinance is an ordinance necessary for the health and safety of the people of Adams County, Illinois, and shall be in full force and effect from and after its passage. BE IT FINALLY ORDAINED, that the Board reserves the right to change, modify or terminate these regulations and procedures at any time, in whole or in part, for any reason, with or without prior notice upon its own unilateral act. ________________________________________________ Mike McLaughlin Adams County Board Chairman ________________________________________________ Attest County Clerk August 10, 2010 EXHIBIT A AGREEMENT IN LIEU OF TAXES The Applicant, its successors and assigns hereby consents and agree to a permit condition that provides for payments in lieu of taxes under certain circumstances. Under current Illinois law, 35 ILCS 200/10-600 et seq. provides a formula for determining the property value assessment of a wind energy device with a capacity of at least 0.5 mega watts such as is proposed by the Applicant here. However, that legislation contains a sundown provision of 2016 and allows for depreciation. A payment will be made to the County of Adams from the Applicant in an amount not less than the taxes that are due in the first year of operation based on the computation of 35 ILCS 200/10-600 et seq. In the event that the tax payment to the County of Adams for a single turbine when computed under the existing tax laws would be less than the tax in the first year of operation, then the Applicant hereby agrees that in consideration of the impacts on the County of Adams for hosting a wind turbine facility including possible impacts to roadways, property values, and economy that the Applicant shall make a payment to Adams County for the difference between the actual tax for that year and the tax to be paid under the formula of 35 ILCS 200/10-600 et seq. for the first year of turbine operation. For example, if the tax in the first year of operation for a single turbine is determined based on the formula of 35 ILCS 200/10-600 et seq. to be $10,000 and in subsequent years the tax is determined to be less than that amount then the Applicant shall make an additional payment to the County of Adams for that difference such that the total revenue to the County is $10,000 for that tax year. One-half of the deficiency amount should be paid to the Treasurer of the County of Adams on behalf of the various taxing bodies on or before the date that the first installment payment is due pursuant to the tax bill for the prior calendar year. The remaining one-half of the deficiency amount shall be paid on or before the date that the second payment is due. Such payment shall continue for so long as any wind turbine proposed under the current application is operational. The payment in lieu of taxes shall be for the total number of turbines allowable under the permit. Therefore, if the permit allows 13 turbines then the payments shall be made for each of those 13 turbines for as long as any turbine is in physical existence at a property located in the County of Adams. The failure or inability of the Applicant to operate a turbine, to sell its electrical output, or to generate electricity, shall not be an excuse from a payment in lieu of taxes. The obligations of the Applicant under this agreement shall continue even if the Applicant assigns transfers or sells its interests in the wind turbine project. The Treasurer of Adams County, on a timely basis, shall distribute said payments in lieu of taxes to the various taxing bodies in the same proportion as the actual tax bills. Any other provision herein notwithstanding, in the event another tax or fee of whatsoever nature is imposed under any law on a wind turbine in place of or as a substitute or a replacement for the real property tax or a portion thereof, then such tax or fees shall for the purpose of this Agreement shall be treated as if it were a real property tax and taken into account in determining the amount of payment in lieu of taxes that must be made. If the revenue to the County of Adams from a substitute or replacement of the real property tax and taken into account in determining the amount of payment in lieu of taxes that must be made. If the revenue to the County of Adams from a substitute or replacement of the real property tax would exceed the payment under the first year of operation of the turbine pursuant to 35 ILCS 200/10-600 as that statute existed as of the date of approval of the permit, then the County of Adams would be entitled to the higher tax revenue under the substitute or replacement real property tax and there would be no payment in lieu of taxes to be made by the Applicant.
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