Town of Pompey, NY
Onondaga County
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Table of Contents
Table of Contents

§ 165-11 Roadside stands.

No fish fry, hot dog, roadside or barbecue stands shall be constructed, reconstructed, erected, built or used in any use district except upon the submission of plans and specifications thereof to the Zoning Board of Appeals and upon written approval thereof by said Zoning Board of Appeals, subject to such conditions, restrictions and safeguards as may be deemed appropriate by said Zoning Board of Appeals.

§ 165-12 Building lines.

Where a building line has already been established in any use district, new construction shall follow the building line, which shall be the average of lines of buildings within 200 feet of either side.

§ 165-13 Dumps.

Dumps of rubbish and other waste shall be permitted only on lands designated as dumps on the Zoning Map. Dumping on other lands in the Town may be permitted upon special approval of the Zoning Board of Appeals and upon such conditions as said Zoning Board of Appeals may impose in the interest of public safety, health and welfare.

§ 165-14 House trailers.

[Added 5-5-1997 by L.L. No. 3-1997; amended 7-7-1997 by L.L. No. 4-1997; 4-8-2002 by L.L. No. 1-2002]
A. 
Upon receipt of site plan approval as set forth herein, house trailers may be allowed for the following purposes and under the following circumstances:
(1) 
As temporary housing for a farmhand and his immediate family, provided that the farmhand is employed full time on the farm, the house trailer is located on said farm property and the farm is actively engaged in agricultural pursuits yielding a gross annual income of not less than $100,000.
(2) 
As temporary housing for the owner and his immediate family while he rebuilds on a lot which contains a single-family home which has been destroyed or rendered uninhabitable by fire, flood or other natural disaster.
(3) 
As temporary housing for the owner and his immediate family while constructing a new residence on the lot. Said house trailer shall be allowed for not more than one-year during actual construction. A second year may be allowed by the Zoning Board of Appeals upon good cause shown.

§ 165-15 Small wind energy conversion systems. [1]

[Added 5-3-2010 by L.L. No. 1-2010]
A. 
Authority. The Town Board of the Town of Pompey enacts this section under the authority granted by:
(1) 
Article IX of the New York State Constitution;
(2) 
New York Statute of Local Governments;
(3) 
New York Municipal Home Rule Law; and
(4) 
New York Town Law, including, but not limited to, those sections pertaining to the Building Code, Electrical Code, fire prevention, use of streets and highways, locations of driveways, peace, good order and safety, promotion of public welfare, excavated lands, unsafe buildings, trespass, building placement, protection of aesthetic interests, and general powers.
B. 
Purpose. The Town Board of the Town of Pompey adopts this section for the following purposes:
(1) 
By adopting this section, it is the Town Board's intention to promote the effective and efficient use of small wind energy conversion systems (small WECS) and to regulate the placement of small WECS so that the public health, safety, natural resources and aesthetics of the Town will not be jeopardized.
(2) 
This section covers only small WECS, whether they are building-mounted, building-supported, or freestanding, or on-grid or off-grid facilities that are fundamentally constructed for the purpose of single-family residential or agricultural usage. Horizontal or vertical axis wind turbines may be used. This section does not address commercial WECS. (See Schedule Limiting the Use of Buildings and Land, Town of Pompey Zoning Law.[2])
[2]
Editor's Note: Said schedule is included at the end of this chapter.
(3) 
Small WECS that have been operating, permitted or approved by the Town of Pompey Zoning Board of Appeals prior to the adoption of this section are only subject to the provisions relating to nuisance prevention and operation. See Subsections H and I contained herein. Such small WECS systems are exempt from all other provisions of this section unless the system is modified after the adoption of this section and said modification relates to any of the standards set forth herein.
C. 
Findings. The Town Board of the Town of Pompey finds and declares that:
(1) 
Wind energy is an abundant, renewable and nonpolluting energy resource of the Town, and its conversion to electricity will reduce our dependence on nonrenewable energy sources, which, in turn, will decrease air and water pollution resulting from the use of conventional energy sources.
(2) 
The generation of electricity from properly sited wind turbines can be cost effective, and, in many cases, existing power distribution systems can be used to transmit electricity from wind-generating stations to utilities.
(3) 
Regulations on the siting and installation of wind turbines are necessary to protect the health and safety of neighboring property owners and the general public and to preserve the natural resources and aesthetics of the community.
(4) 
If not properly sited, small WECS can present potentially significant and aesthetic impacts. The aesthetics of the community is a key issue and must play a significant role in the siting of proposed facilities. Town landowners are encouraged to engage adjacent property owners in the siting of proposed facilities.
(5) 
If not properly sited, small WECS may present a risk to bird and bat populations.
(6) 
If not properly sited, small WECS may present risks to the property values of adjoining property owners.
(7) 
Small WECS may constitute a source of noise which may be disruptive to the public.
D. 
Definitions. As used in this section, the following terms shall have the meanings indicated:
BUILDING
A structure having a roof supported by columns or walls and intended for the shelter or enclosure of persons, animals or chattels.
BUILDING-MOUNTED OR BUILDING-SUPPORTED WECS
Any WECS unit mounted on a house or accessory building.
HORIZONTALLY-MOUNTED SMALL WECS
Also known as "horizontal axis wind turbines" (HAWTs); a wind turbine that has the main rotor shaft arranged horizontally.
INVENTORIED RESOURCE
Parcels of land or aesthetic resources that are of local or statewide significance, such as state parks, lakes, forests, historic places listed on the national or state historic places list, and areas designated as "scenic."
OFF-GRID
Small WECS that are not connected to the public electricity grid.
ON-GRID
Small WECS that are connected to the public electricity grid.
ROTOR
Diameter of the circle swept by the tips of the rotating blades of a small WECS.
SITE
The parcel of land on which the small WECS is to be placed.
SMALL WECS
A wind energy conversion system consisting of a wind generator, wind tower, and associated control or conversion electronics that is accessory to the principle use.
SYSTEM HEIGHT
The height of the wind tower structure as measured from the original grade to the rotor at the furthest vertical extension of the small WECS.
VERTICALLY-MOUNTED SMALL WECS
Also known as "vertical axis wind turbines" (VAWTs); a wind turbine that has the main rotor shaft arranged vertically.
WIND ENERGY CONVERSION SYSTEM (WECS)
A machine that converts kinetic energy in the wind to a usable form, commonly referred to as a "wind turbine" or "windmill." The WECS includes all parts of the system, including, but not limited to, the base, foundation, wind generator, nacelle, rotor, wind tower, inverter, batteries, and all other components used in the system. The WECS may be mounted on a horizontal axis, vertical axis, rotor or propeller.
WIND GENERATOR
Blades and associated mechanical and electrical conversion components mounted on top of the wind tower.
WIND TOWER
Freestanding structure that supports the wind generator.
E. 
Standards. No small WECS shall be constructed which does not meet the following standards, unless clearly stated otherwise:
(1) 
Permits. No person, firm or corporation, or other entity being the owner or occupant of any land or premises within the Town shall use or permit the use of land or premises for the construction of a tower for an on-site small WECS without first obtaining a building permit. Small WECS must meet all current building and Town codes.
(2) 
Schedule Limiting Height, Location and Clearances for WECS. To facilitate public understanding of this section and for the better administration thereof, the regulations limiting the height, location and clearances for small WECS have been set forth in the annexed schedule.[3] Such schedule is hereby adopted and declared to be a part of this section, hereinafter referred to as the "schedule," and may be amended in the same manner as any other part of this chapter. All limitations as to height, location, and clearances set forth in such schedule shall be those enumerated herein.
[3]
Editor's Note: The Schedule Limiting Height, Location and Clearances for WECS is included at the end of this chapter.
(3) 
Safety.
(a) 
Ground clearance. The minimum distance between the ground and any exposed, moving part of the rotor blade apparatus shall be 15 feet, measured at the lowest point of the rotor blade arc.
(b) 
Wind tower design. The wind tower shall be designed to handle the maximum potential structural load. In addition, under no circumstances shall the height of the system exceed the height recommendations specified by the manufacturer of the system.
(c) 
Wind tower access. The small WECS shall not be accessible to unauthorized personnel. Access to the wind tower shall be limited by means of a fence, no lower than six feet in height, around the tower base, with a locking portal and with a locking gate on the fence, or by limiting the wind tower climbing apparatus to no lower than 15 feet from the base of the tower. The fencing requirements do not apply to building-mounted or building-supported WECS.
(d) 
Warning signage. A weather-resistant sign plate, no greater than two square feet in size, containing the name of the current owner or operator, emergency phone number, and current address of such owner/operator shall be located on the exterior surface of the tower at a height of five feet or on the fence surrounding each tower and viewable by a Code Enforcement Officer. Such sign shall also warn of electrical shock or high voltage.
(e) 
Braking mechanisms. The small WECS shall be equipped with an automatic braking, governing or feathering system to prevent uncontrolled rotation, over-rotation and excessive pressure on the wind tower structure, rotor blades, wind generator components or enclosed shelter (in the case of building-mounted and/or building-supported small WECS). No small WECS shall be permitted which lacks such a system. The applicant shall file with the Town Code Enforcement Officer a document explaining how the small wind energy system may be shut down in case of an emergency.
(f) 
Emergency shutdown. In the event of a failure of the braking system, the small WECS shall have a positive means to disconnect it from the local power grid.
(g) 
The existing structure or occupied space where the small WECS is sited shall be able to withstand the additional load, force, torque, and vibration imposed by the small WECS. All related components must be designed in accordance with generally acceptable industry standards. The entire facility, including the building onto which the small WECS will be attached, must be in compliance with all applicable governmental building codes, laws and regulations and in accordance with generally accepted engineering practices and industry standards, including, but not limited to, acceptable standards for stability, wind and ice loads.
(h) 
Duty to repair unsafe system. If a small WECS is deemed unsafe, it shall be repaired in accordance with the provisions set forth in Subsection I of this section.
(i) 
Abandonment; abatement; decommissioning. If a small WECS has been abandoned, the property owner shall comply with the provisions set forth in Subsection I of this section.
(4) 
Intrusiveness mitigation.
(a) 
No advertising or promoting. No word or graphic representation, other than appropriate warning signs, may be placed on a wind generator, wind tower, building or other structure associated with the small WECS. No brand names, logo, advertising, mark or promotion shall be placed or painted on the wind tower, rotor, wind generator or tail vane where it would be visible from the ground, except that a small WECS manufacturer's logo may be displayed on the wind generator in an unobtrusive manner.
(b) 
Lighting. The small wind energy system shall not be artificially lit unless required by the Federal Aviation Administration or other appropriate authority with jurisdiction.
(c) 
Color. The small WECS wind tower and blades shall be painted a nonreflective, unobtrusive color that blends into the surrounding landscape to the greatest extent possible and incorporates nonreflective surfaces to minimize visual disruption.
(5) 
Site requirements.
(a) 
Power transmission lines. All power transmission lines from the small WECS to the electrical power utility grid or to any building or other structure shall be located underground to the maximum extent practicable. Such lines must meet national and state electrical codes.
(b) 
Zones permitted. Small WECS that meet all the requirements of this section shall be permitted anywhere in the Town except in the five hamlet districts as defined in the Town Code (Oran, Delphi, Watervale, Pompey Hill, Pompey Center). Hamlet residents seeking to erect a small WECS must pursue a variance. See Subsection G herein.
(c) 
Number per building. The maximum number of rooftop-mounted or building-stabilized systems shall be no more than the roofline length divided by 15 feet.
(6) 
Setbacks; ROW; structure; system height.
(a) 
Small rooftop- and building-supported systems. There are no setback requirements for these systems if the building or structure to which the system is affixed or mounted meets the setback requirements currently in effect for the Town.
(b) 
Small freestanding systems. These systems must meet the following right-of-way (ROW), side, and rear property line setbacks, as well as all requirements for overhead power lines and on-site underground utilities:
[1] 
Front, rear and side yard. Minimum setbacks to property lines and ROW shall equal 120% of the system height, as determined using an arc-of-fall projection. This represents the minimum setback requirement with respect to any point on an inhabited structure. No part of a small WECS or its supporting structures shall be within 10 feet of a property line.
[2] 
Overhead power lines. All small WECS shall maintain a distance of 150% of the system height, as determined using an arc-of-fall projection, from the small WECS tower base and the closest point to an overhead power line.
[3] 
Underground utilities. No components of a small WECS shall be within 10 feet of buried public water, drainage easements, sanitary sewer facilities, gaslines, cable lines, or power utilities. Also, no component of a small WECS, other than underground wiring necessary for the operation of that system, shall be within 20 feet of a private sewage disposal system or an area of dedicated land for the replacement of said sewage disposal system. If no mapping or preliminary design has been undertaken for the purpose of a replacement system, it will be assumed that an area equal to the existing sewage system will be required and will provide the same clearance requirements as provided in the initial application.
[4] 
System height. The wind tower height of a small WECS shall be no more than 100 feet, as measured from the original grade at the proposed location and as otherwise provided by this section. The rotor radius for any small WECS shall not exceed 15 feet, thereby providing a maximum system height of 115 feet. For any site within 500 feet of the ROW of U.S. Route 20, no small WECS shall have a system height greater than 75 feet.
(c) 
Compliance with Building Code. All freestanding small WECS must meet all appropriate provisions of the New York State Building Code.[4]
[4]
Editor's Note: See Ch. 93, Fire Prevention and Building Construction.
(d) 
Compliance with ASCE. All freestanding small WECS must meet the American Society of Civil Engineers (ASCE) Standard No. 7 for resistance to wind.
F. 
Site plan requirements and approval. Small WECS must comply with all relevant Town of Pompey zoning laws.
(1) 
It is the responsibility of the applicant to provide all information and documentation necessary for the Town to determine what type of small WECS is being proposed, its proposed location, and its aesthetic impact.
(2) 
A building permit for a small WECS shall be issued if the applicant meets all of the requirements set forth in this section and satisfactorily provides the following information at the time of application:
(a) 
A completed application form as supplied by the Town for approval of the installation and operation of a small WECS. Such form shall include the applicant's and landowner's name and contact information.
(b) 
The relevant tax map numbers, including a description of the existing use and acreage of the site.
(c) 
Proof of ownership of the site or proof that the applicant has written permission from the owner to make such application.
(d) 
Survey map showing the following information:
[1] 
Property lines and physical dimensions of the site.
[2] 
Location, approximate dimensions and types of all existing structures, buildings and occupied spaces on the site.
[3] 
The proposed location for the small WECS, including the elevation at that site.
[4] 
Location of all existing aboveground utility lines and other small WECS within 500 feet of the proposed small WECS location.
[5] 
Approximate location and size of all structures within a five-hundred-foot radius of the proposed small WECS location, including but not limited to adjacent ownerships and existing residences, schools, churches, hospitals, libraries, buildings and occupied spaces.
[6] 
Location of all transmission facilities proposed for installation.
[7] 
Location of all roads and structures proposed as part of the installation of the small WECS.
[8] 
Location of all federal, state, county or local parks, recognized historical or heritage sites, state-identified wetlands or important bird areas as identified in the federal, state, county, local or New York Audubon's GIS databases or other generally available documentation, which areas are adjacent to the site.
[9] 
Standard engineering drawings or plans of the wind turbine structure, including, but not limited to, an engineering analysis of the wind tower, tower base and footings, proposed tower location, rotor diameter, and ground clearance.
[10] 
The applicant shall file a document with the Town Code Enforcement Officer explaining how the small WECS may be shut down in case of an emergency.
(3) 
Public hearing. No action shall be taken by the Planning Board to issue a site plan approval or by the Zoning Board of Appeals to approve a variance, as the case may be, until after a public notice and hearing. Notice of the public hearing shall be published in the official newspaper of the Town of Pompey at least five days before the date set for such hearing(s), and written notice of the hearing shall be mailed to the applicant or his/her agent at the address provided in the application at least 20 days before such hearing. The applicant, in turn, shall be responsible for notifying, by certified mail, all property owners of record within 1,000 feet of the boundary line of the property to which the application relates of the time, date and place of such public hearing at least 10 days prior to such hearing. Notice shall be deemed to have been given if mailed to the property owner at the tax billing address listed on the property tax records of the Town Assessor. At least seven days prior to such public hearing, the applicant shall file with the Planning Board or the Zoning Board of Appeals, as the case may be, an affidavit verifying that notice was properly mailed to nearby property owners. Failure of the property owners to receive such notice shall not be deemed a jurisdictional defect.
[Added 12-2-2013 by L.L. No. 6-2013]
G. 
Variances. If an applicant does not satisfy all of the requirements of this section, a building permit shall be denied. However, the applicant may seek a variance from the Town of Pompey Zoning Board of Appeals for the construction and placement of the proposed small WECS.
(1) 
When addressing whether to issue a variance, the Zoning Board may consider issues of safety, obtrusiveness or visual impact.
(2) 
The Town of Pompey Zoning Board of Appeals may, in its discretion, expedite the procedure for approval of small WECS.
(3) 
The Zoning Board of Appeals may request that the applicant submit a visual impact analysis of the proposed project and/or utilize mitigation strategies to reduce the visual impact of the small WECS.
(4) 
Mere visibility, even startling visibility, of a small WECS may not be the sole grounds for denying a variance.
H. 
Nuisance prevention. No small WECS shall be constructed or allowed to continue in operation unless the following standards are met:
(1) 
Noise. A small WECS shall be properly maintained and operated at all times with relation to property lines so that the noise produced during operation shall not exceed 50 dBA, measured at the boundaries of all the closest parcels that are owned by nonsite owners. This level, however, may be exceeded during short-term events, such as utility outages or wind speeds exceeding 25 miles per hour.
(2) 
Electromagnetic and microwave communications interference. Small WECS shall not be located in any area where their proximity interferes with existing fixed broadcast, retransmission, or reception antennae for radio, television, wireless telephones, and personal communications systems or other broadcast devices or preexisting microwave communications facilities. The small WECS shall be operated so that no disruptive electromagnetic interference is caused.
I. 
Operation; inspection; fees; penalties. In order to ensure that small WECS are operated as provided for and intended by this section, the applicant and/or landowner must meet the following additional requirements:
(1) 
Operation of small WECS.
(a) 
Operational condition. Should a small WECS be in violation of a permit condition, the owner or operator shall remedy the situation within 90 days of written notice from the Town Code Enforcement Officer of said condition.
(b) 
Public hearing. Notwithstanding any other abatement provision of this section, if the small WECS is not brought into permit compliance after notice from the Town, the Town Board may, after a public hearing at which the operator or owner shall be given opportunity to be heard and present evidence, including a plan to come into compliance, order either remedial action within a particular time frame or revocation of the wind energy permit for the WECS and require the removal of the WECS within 90 days.
(2) 
Unsafe small WECS. Should a Code Enforcement Officer deem a small WECS unsafe or dangerous to the life, health, property or safety of the public or so damaged, decayed, dilapidated, structurally unsafe, or of such faulty construction or unstable foundation that partial or complete collapse is possible, the owner thereof shall remove said system at the owner's expense within 90 days of written notice thereof from the Town Code Enforcement Officer.
(3) 
Removal. If removal of the small WECS is ordered pursuant to this section, the owner or operator shall remove the entire aboveground structure (exclusive of the foundation), including transmission equipment and fencing. The owner or operator must comply with applicable provisions of the New York State Building Code and Property Maintenance Law.
(4) 
Failure to remove the small WECS. If the small WECS is not removed by the owner within 90 days of written notice from the Town, the Town may authorize the dismantling and removal of the small WECS at the owner's expense. The cost of removing the small WECS and associated equipment will be a lien on the property and added to the property owner's tax bill.
(5) 
Inspections and enforcement. The Code Enforcement Officer, in the company of the owner or operator, or his/her agent, may enter the premises on which a small WECS is being or has been constructed to inspect all components of the installation. When practicable, the Code Enforcement Officer shall provide the owner or operator with written notice of his/her intent to conduct an inspection at least 48 hours before such inspection. Upon inspection, the Code Enforcement Officer may order the owner to make repairs or alterations to the system in the event the system is deemed noncompliant, unsafe, deficient or dangerous and may order that the construction or operation of the small WECS cease until such repairs or alterations are made. In the event that the small WECS is deemed to pose an immediate danger to life or property, the Code Enforcement Officer shall have the right to enter the property forthwith, without the owner being present, and to take such action as is deemed reasonably necessary to eliminate such danger.
(6) 
Fees. Fees for applications and permits under this section shall be established by resolution of the Town Board.
(7) 
Penalties. Any person who violates any provision of this section shall be guilty of a violation and subject to a fine of not more than $250 and/or 15 days jail.
[1]
Editor's Note: Former §§ 165-15, House trailers, and 165-16, Permits for the maintenance of house trailers and trailer camps, were repealed 5-5-1997 by L.L. No. 3-1997.

§ 165-16 Billboards.

Except as specifically herein provided in these regulations, no sign or billboard shall be erected or any existing ones replaced in any district except upon written approval of the Zoning Board of Appeals and upon such conditions as said Zoning Board of Appeals may impose in the interests of public safety and health.

§ 165-16.1 Prohibition against natural gas and/or petroleum extraction, exploration or production wastes.

[Added 6-3-2013 by L.L. No. 1-2013]
A. 
Authority. The Town Board of the Town of Pompey hereby enacts this section under the authority granted by:
(1) 
Article IX of the New York State Constitution;
(2) 
New York Municipal Home Rule Law;
(3) 
New York Statute of Local Governments;
(4) 
New York Town Law, including but not limited to §§ 130 and 135 and Article 6 (Zoning and Planning);
(5) 
New York Environmental Conservation Law; and
(6) 
New York Public Health Law.
B. 
Findings of fact. The Town Board has heretofore made the following findings, determinations, and declarations relative to the matters set forth in this section:
(1) 
Pompey is a community in Onondaga County that takes great pride in and assigns great value to its rural residential character, small-town atmosphere, high-quality agricultural and forestry land, and scenic and other natural resources.
(2) 
Many Town residents are dependent upon aquifers and wells for life-sustaining water; maintaining the quality of water resources within the Town is critical to protecting the natural environment of the Town, the general health and welfare of Town residents, and the local economy. The explicitly prohibited uses defined and described in this section have the potential to damage surface water and groundwater resources in the event of (by way of example) human error, power outages, flooding or other natural disasters, or engineered materials and structures experiencing stresses beyond those for which they are designed. Further, water pollution is hazardous to the public health. If a domestic water source is contaminated, remediation is time and cost intensive, and may not restore the water resource to a quality acceptable for domestic use.
(3) 
Preservation of the Town's irreplaceable scenic sites, air quality and water quality, and priceless and unique character, is of significant value to the inhabitants of the Town and to the tourists who visit here.
(4) 
The Town's rich natural environment is a valuable asset that creates a sense of identity and well-being for residents of the area. Preserving and protecting the agricultural, scenic, recreational, and other natural resources of the Town is important for both a healthy environment and vibrant economy. Aesthetic issues are real and evoke strong reactions from people. They deeply affect the way people feel about a place, whether or not businesses will want to locate in a place or people will want to live in and visit a place.
(5) 
Allowing the explicitly prohibited uses defined and described in this section to be conducted within the Town could impair the existing character of the Town, because, by their very nature, such activities have the potential to produce a combination of negative impacts upon the environment and people living in or in proximity to the communities in which they are located. Such negative impacts may include, without limitation, traffic, noise, vibrations, fumes, damage to roadways, degradation of water quality, degradation of air quality, decreased availability of affordable housing, damage to and loss of agricultural lands and soils, damage to and loss of open space, natural areas, and scenic views, decreased recreational opportunities, and damage to the tourism industries.
(6) 
If one or more of the explicitly prohibited uses defined and described in this section are conducted within the Town, the traffic generated thereby could be hazardous or inconvenient to the inhabitants of the Town and could be dangerous to pedestrians (especially children), cyclists, and motorists, and could result in traffic congestion that could delay emergency response times for medical emergencies, fires and accidents. Certain of the explicitly prohibited uses defined and described in this section typically involve a large volume of heavy trucks, and accidents involving heavy trucks have greater potential for death than those involving smaller vehicles and are more likely to occur on roads (such as many roads in the Town) that have sharp corners, narrow lanes, or short sight lines; thus increased volume of heavy truck traffic may create unsafe conditions for the traveling public and a strain on emergency responses. Increased truck traffic increases air pollution and noise levels, and decreases the quality of life and property values for those living nearby. Further, roads are a critical public resource and constitute a major investment of the public's money. Many Town roads are highways by use (as contemplated by Section 189 of the New York Highway Law) and so are not necessarily engineered or able to carry repeated legal limit loads. The Town is not in a position to bear the high costs associated with the road use impacts that typically accompany many of the explicitly prohibited uses defined and described in this section.
(7) 
If one or more of the explicitly prohibited uses defined and described in this section are conducted within the Town, the air pollution, dust and odors generated thereby (whether on site or by truck traffic to and from the proposed site of such activities) could be hazardous to the inhabitants of the Town. Air pollution is a known hazard to the public health.
(8) 
If one or more of the explicitly prohibited uses defined and described in this section are conducted within the Town, noise, vibrations, and light pollution typically caused by such activities could be hazardous or inconvenient to the inhabitants of the Town. Noise, traffic congestion, nighttime lighting and vibrations can have negative effects on human health and wildlife.
(9) 
The recreation, generation, keeping, storage or disposal of natural gas and/or petroleum extraction, exploration or production wastes (as the term is defined in this section) within the Town could have a negative impact on the public health, safety and welfare of the inhabitants of the Town. As well, there are substantial fiscal risks arising from such activities in terms of the need for the cleanup, removal, and/or remediation of such wastes and lands upon which the same are generated, deposited, or emitted, whether purposefully or accidentally, including potential liability for such deposits or emissions.
(10) 
The high costs associated with the disposal of natural gas and/or petroleum extraction, exploration or production wastes (as the term is defined in this section) have in other localities resulted, and could in our Town result, in persons seeking to avoid such costs by depositing such material along roadways, in vacant lots, on business sites, in the private dumpsters of others or in other unauthorized places. Such activities could pose a hazard to the public health, safety and welfare of the inhabitants of the Town.
(11) 
The Town Board believes it is appropriate to ensure that any industrial activity contemplated for the Town takes place only if compatible with present land uses and with the Town's Comprehensive Plan.
(12) 
The explicit proscription of activities such as those prohibited by this section is a legitimate use of police power-based laws. See Matter of Gernatt Asphalt Products, Inc. v. Town of Sardinia, 87 N.Y.2d 668 (1996), where the Court of Appeals, New York State's highest court, held as follows:
A municipality is not obliged to permit the exploitation of any and all natural resources within the town as a permitted use if limiting that use is a reasonable exercise of its police power to prevent damage to the rights of others and to promote the interests of the community as a whole.
87 N.Y.2d at 683, 684.
C. 
Purpose and intent. The purpose and legislative intent underlying the Town Board's passage of this section are as follows:
(1) 
Purposes. This section is enacted so as to take proactive steps to protect and preserve the quality of the Town's air and water and historic resources, and other assets, and to protect and promote the health, safety, and welfare of the Town and its present and future residents. Without limiting the generality of the foregoing, this section is intended and is declared by the Town Board to:
(a) 
Promote the purposes of planning and land use regulation by, among other things, preserving the roads, and fire, police, and other emergency response services in the Town;
(b) 
Promote the health, safety and welfare of the Town, its present and future inhabitants, by protecting them from the adverse public nuisance and/or land use impacts and effects that could result if the activities prohibited by this section were allowed to be conducted within the Town;
(c) 
Protect the Town's priceless and unique character, the preservation of which is of significant value to the inhabitants of the Town and the tourists who visit here, by protecting it from the adverse public nuisance and/or land use impacts and effects that could result if the activities prohibited by this section were allowed to be conducted within the Town; and
(d) 
Protect the Town's irreplaceable historic, water quality, air quality, scenic and other natural resources, by protecting them from the adverse public nuisance and/or land use impacts and effects that could result if the activities prohibited by this section were allowed to be conducted within the Town.
(2) 
Declaration of intent.
(a) 
Exercise of police power. This section is a police power, public nuisance and land use regulation, designed to establish and provide for general land use regulation, environmental protection, public safety prevention of increased traffic congestion, protection of rural and agricultural resources, preservation of the character of the Town, protection of air quality, protection of water resources quality, prevention of noise and disturbance, protection against diminished property values, and protection of the public from nuisance and/or land use effects and impacts.
(b) 
Protection of private drinking water supplies. This section is intended to protect drinking water supplies and is intended to supplement and enhance and is not intended to impinge upon the Safe Drinking Water Act[1] or the underground injunction control programs administered by the Environmental Protection Agency.
[1]
Editor's Note: See 42 U.S.C. § 300f et seq.
(c) 
Matters of local concern. This section is intended to and is hereby declared to address matters of local concern, and it is declared that it is not the intention of the Town Board to address matters of statewide concern.
(d) 
Negative externalities. This section is intended and is hereby declared to impose conditions and restrictions on the use of property that are directly related to and incidental to the use of that property, and such conditions and restrictions are aimed at minimizing or precluding the adverse impact on the Town that could result from an inappropriate use of the property that could otherwise adversely affect the comfort, peace, enjoyment, health and safety of the surrounding land.
(e) 
Land use control. This section is intended to act as and is hereby declared to be an exercise of the permissive incidental control of a police power law that is concerned with the broad area of land use planning and the physical use of land and property within the Town, including the physical externalities associated with certain land uses, such as negative impacts on roadways and traffic congestion and other deleterious impacts on a community. This section is not intended to regulate the operational processes of any business. This section is a law of general applicability and is intended to promote the interests of the community as a whole.
D. 
Definitions. As used in this section, the following terms shall have the meanings indicated:
BELOW-REGULATORY CONCERN
Radioactive material in a quantity or of a level that is distinguishable from background (as that phrase is defined at 10 CFR 20.1003), but which is below the regulation threshold established by any regulatory agency otherwise having jurisdiction over such material in the Town.
INJECTION WELL
A bored, drilled or driven shaft whose depth is greater than the largest surface dimension, or a dug hole whose depth is greater than the largest surface dimension of the hole, through which fluids (which may or may not include semi-solids) are injected into the subsurface and less than 90% of such fluids return to the surface within a period of 90 days.
LAND APPLICATION FACILITY
A site where any natural gas and/or petroleum extraction, exploration or production wastes are applied to the soil surface or injected into the upper layer of the soil.
NATURAL GAS
Methane and any gaseous substance, either combustible or noncombustible, which is produced in a natural state from the earth and which maintains a gaseous or rarefied state at standard temperature and pressure conditions, and/or gaseous components or vapors occurring in or derived from petroleum or other hydrocarbons.
NATURAL GAS AND/OR PETROLEUM EXPLORATION ACTIVITIES
Geologic or geophysical activities related to the search for natural gas, petroleum or other subsurface hydrocarbons, including prospecting, geophysical and geologic seismic surveying and sampling techniques, but only to the extent that such activities involve or employ core, rotary, or any other type of drilling or otherwise making any penetration or excavation of any land or water surface in the search for and evaluation of natural gas, petroleum or other subsurface hydrocarbon deposits.
(1) 
Any of the following in any form, and whether or not such items have been excepted or exempted from the coverage of any federal or state environmental protection laws, or have been excepted from statutory or regulatory definitions of "industrial waste," "hazardous," or "toxic," and whether or not such substances are generally characterized as waste:
(a) 
Below-regulatory concern radioactive material, or any radioactive material which is not below-regulatory concern, but which is in fact not being regulated by the regulatory agency otherwise having jurisdiction over such material in the Town, whether naturally occurring or otherwise, in any case relating to, arising in connection with, or produced by or incidental to the exploration for, the extraction or production of, or the processing, treatment, or transportation of natural gas, petroleum, or any related hydrocarbons;
(b) 
Natural gas or petroleum drilling fluids;
(c) 
Natural gas or petroleum exploration, drilling, production or processing wastes;
(d) 
Natural gas or petroleum drilling treatment wastes (such as oils, frac fluids, produced water, brine, flowback, sediment and/or any other liquid or semi-liquid material);
(e) 
Any chemical, waste oil, waste emulsified oil, mud or sediment that was used or produced in the drilling, development, transportation, processing or refining of natural gas or petroleum;
(f) 
Soil contaminated in the drilling, transportation, processing or refining of natural gas or petroleum;
(g) 
Drill cuttings from natural gas or petroleum wells; or
(h) 
Any other wastes associated with the exploration, drilling, production or treatment of natural gas or petroleum.
(2) 
This definition specifically intends to include some wastes that may otherwise be classified as "solid wastes which are not hazardous wastes" under 40 CFR § 261.4(b). The definition of natural gas and/or petroleum extraction, exploration or production wastes does not include:
(a) 
Recognizable and nonrecognizable food wastes; or
(b) 
Waste generated by farm use.
NATURAL GAS AND/OR PETROLEUM EXPLORATION, EXTRACTION OR PRODUCTION WASTES DISPOSAL/STORAGE FACILITY
Any of the following: tanks of any construction (metal, fiberglass, concrete, etc.); impoundments; pits; evaporation ponds; or other facilities, in any case used for the storage or treatment of natural gas and/or petroleum extraction, exploration or production wastes that are being held for initial use; have been used and are being held for subsequent reuse or recycling; are being held for treatment; or are being held for storage.
NATURAL GAS AND/OR PETROLEUM EXPLORATION, EXTRACTION OR PRODUCTION WASTES DUMP
Land upon which natural gas and/or petroleum extraction, exploration or production wastes, or their residue or constituents before or after treatment, are deposited, disposed, discharged, injected, placed, buried or discarded, without any intention of further use.
NATURAL GAS AND/OR PETROLEUM EXTRACTION ACTIVITIES
The digging or drilling of a well for the purposes of exploring for, developing or producing natural gas, petroleum or other subsurface hydrocarbons, including without limitation any and all forms of shale fracturing.
NATURAL GAS COMPRESSION FACILITY
A facility constructed or operated to compress natural gas that originates from a gas well or collection of such wells, operating as a midstream facility for delivery of gas from a gas field for entry into the transmission pipeline system; the term shall not include the transmission pipeline itself; the term shall include equipment for liquids separation, natural gas dehydration, and tanks for the storage of waste liquids and hydrocarbon liquids.
NATURAL GAS PROCESSING FACILITY
A facility that separates and recovers natural gas liquids (NGLs) and/or other nonmethane gases and liquids from a stream of produced natural gas, using equipment for any of the following: cleaning or stripping gas, cooking and dehydration, residual refinement, treating or removing oil or condensate, removing water, separating NGLs, removing sulfur or carbon dioxide, fractionation of NGLs, or the capture of CO2 separated from natural gas streams.
PERSON
Any individual, public or private corporation for profit or not for profit, association, partnership, limited liability company, limited liability partnership, firm, trust, estate, and any other legal entity whatsoever which is recognized by law as the subject of rights and duties.
RADIATION
The spontaneous emission of particles (alpha, beta, neutrons) or photons (gamma) from the nucleus of unstable atoms as a result of radioactive decay.
RADIOACTIVE MATERIAL
Material in any form that emits radiation. This definition specifically includes NORM (naturally occurring radioactive material), but only if such naturally occurring material has been moved from its naturally occurring location through a mechanical or other man-made process. All such material is radioactive material for purposes hereof, whether or not it is otherwise exempt from licensing and regulatory control pursuant to the New York State Department of Labor, the United States Nuclear Regulatory Commission, the United States Environmental Protection Agency, the United States Department of Energy, the United States Department of Transportation, or any other regulatory agency.
SUBSURFACE
Below the surface of the earth, or of a body of water, as the context may require.
UNDERGROUND INJECTION
Subsurface emplacement of natural gas and/or petroleum extraction, exploration or production wastes, including emplacement by or into an injection well.
UNDERGROUND NATURAL GAS STORAGE
Subsurface storage, including in depleted gas or oil reservoirs and salt caverns, of natural gas that has been transferred from its original location, whether for the purpose of load balancing the production of natural gas or for any other reason, including, without limitation, short-term, long-term or intermittent storage for product quality, processing or transportation purposes, or because of market conditions. Without limitation, this term includes compression and dehydration facilities and associated pipelines.
E. 
Explicitly prohibited uses.
(1) 
The following uses and activities are hereby expressly and explicitly prohibited in each and every zoning district within the Town, and no building or structure shall be created, altered or erected, and no body of water, land or building thereon shall be used, for any of such uses or activities:
(a) 
Land application facility;
(b) 
Natural gas and/or petroleum exploration activities;
(c) 
Natural gas and/or petroleum extraction activities;
(d) 
Natural gas and/or petroleum exploration, extraction or production wastes disposal/storage facility;
(e) 
Natural gas and/or petroleum exploration, extraction or production wastes dump;
(f) 
Natural gas compression facility;
(g) 
Natural gas processing facility;
(h) 
Underground injection; and
(i) 
Underground natural gas storage.
(2) 
Any condition caused or permitted to exist in violation of this § 165-16.1E is a threat to public health, safety and welfare, and is hereby declared and deemed to be a nuisance. Collectively the above expressly prohibited uses may be referred to in this section as "explicitly prohibited uses," any one of the above expressly prohibited uses may be referred to in this section as an "explicitly prohibited use," and any combination of more than one such use may also be referred to as "explicitly prohibited uses."
F. 
Prohibition against natural gas and/or petroleum exploration, extraction or production wastes.
(1) 
The Town hereby exercises its authority and right under New York Environmental Conservation Law § 27-0711 to adopt a section that is consistent with the Environmental Conservation Law Article 27, such consistency demonstrated by the fact that this section complies with at least the minimum applicable requirements set forth in such statute, and the rules and regulations promulgated pursuant to said Article 27.
(2) 
It shall be unlawful for any person to produce, store, inject, discard, discharge, dispose, release, or maintain, or to suffer, cause or permit to be produced, stored, injected, discarded, discharged, disposed, released, or maintained, anywhere within the Town, any natural gas and/or petroleum exploration, extraction or production wastes.
G. 
No application to customary local distribution lines, etc. The prohibitions set forth above in § 165-16.1E and F of this Article IV are not intended, and shall not be construed, to:
(1) 
Prevent or prohibit the right to use roadways in commerce or otherwise for travel;
(2) 
Prevent or prohibit the transmission of natural gas through utility pipes, lines, or similar appurtenances for the limited purpose of supplying natural gas to residents of or buildings located in the Town; or
(3) 
Prevent or prohibit the incidental or normal sale, storage or use of lubricating oil, heating oil, gasoline, diesel fuel, kerosene or propane in connection with legal farm, residential, business, commercial and other uses within the Town.
H. 
Preexisting, legal, nonconforming natural gas and/or petroleum extraction activities.
(1) 
Notwithstanding any provision of this section to the contrary, any natural gas and/or petroleum extraction activities that are being conducted in the Town as of the effective date of this § 165-16.1 shall be subject to the following:
(a) 
If, as of the effective date of this § 165-16.1, substantive natural gas and/or petroleum extraction activities are occurring in the Town, and those activities are in all respects being conducted in accordance with all applicable laws and regulations, including, without limitation, the possession of valid, nonrevoked permits for all matters for which permits are required, and including compliance with each, any, and all permit conditions, as are or may be required by the New York State Department of Environmental Conservation ("DEC") and/or all other regulating local, state, and federal governments, bureaus or agencies, then and only then such activity shall be considered a preexisting, nonconforming use and shall be allowed to continue, subject, however, to the provisions of Subsection H(2)(a) and (b) of this § 165-16.1.
(2) 
Natural gas and/or petroleum extraction activities that are being conducted in the Town as of the effective date of this section and which do not qualify for treatment under the preceding Subsection H(1) of this § 165-16.1 shall not be grandfathered (or be permitted to continue or deemed lawful preexisting uses).
(a) 
Upon the depletion, closing or reclamation of any well which is allowed to remain in operation after the effective date of this section by virtue of Subsection H(1) of this § 165-16.1, or upon any other substantive cessation of natural gas and/or petroleum extraction activities for a period of more than 12 months, then and in either of such events the preexisting and/or nonconforming use status (and any related grandfathering rights) of or relating to such activity shall terminate.
(b) 
Notwithstanding any provision hereof to the contrary, the preexisting, nonconforming status conferred and recognized by Subsection H(1) of this § 165-16.1, is not intended, and shall not be construed, to authorize or grandfather any natural gas and/or petroleum extraction activities extending beyond whatever well bore is authorized in any DEC permit in existence as of the effective date of this section. Any expansion or attempted or purported expansion of such well, whether as to its production, depth, horizon(s) or otherwise, shall not be grandfathered under Subsection H(1) of this § 165-16.1.
I. 
Severability. If any word, phrase, sentence, part, section, subsection, or other portion of this section, or the application thereof to any person or to any circumstance, is adjudged or declared invalid or unenforceable by a court or other tribunal of competent jurisdiction, then, and in such event, such judgment or declaration shall be confined in its interpretation and operation only to the provision of this section that is directly involved in the controversy in which such judgment or declaration is rendered, and such judgment or declaration of invalidity or unenforceability shall not affect or impair the validity or enforceability of the remainder of this section or the application hereof to any other persons or circumstances. If necessary as to such person or circumstances, such invalid or unenforceable provision shall be and be deemed severed herefrom, and the Town Board of the Town hereby declares that it would have enacted this section, or the remainder thereof, even if, as to particular provisions and persons or circumstances, a portion hereof is severed or declared invalid or unenforceable.

§ 165-16.2 Solar energy conversion systems.

[Added 2-2-2015 by L.L. No. 1-2015]
A. 
Purpose. The purpose of this section is to allow the construction of solar energy conversion systems in the Town of Pompey in a manner that preserves the health, safety and welfare of the Town while facilitating the production of renewable energy. In so doing, this chapter establishes procedures for the use of generated energy by the principal user of a parcel with only ancillary sale of any excess energy to the public utility.
B. 
Definitions. As used in this section, the following terms shall have the meanings indicated:
SOLAR COLLECTION SYSTEM (SCS)
A device or system to absorb, accumulate or convert or otherwise use the sun's energy as a source of heat or electricity. A facility is only allowed in the Town if it supplies electrical power or heat solely for on-site use, except that when a parcel on which a SCS is installed also receives electrical power supplied by a utility company, excess electrical power generated by the SCS and not currently needed for on-site use may be used by the utility company in exchange for a reduction in the quantity of electrical power supplied by that company to the parcel for on-site use, as long as no net revenue is produced by such electrical power over a twelve-month period.
TOWN
Town of Pompey.
UNIFIED SOLAR PERMIT (USP)
An expedited solar permitting process developed by the NY-Sun public-private partnership which uses a unified permit across municipalities in New York State.
C. 
Applicability.
(1) 
This section shall apply to all SCS proposed in the Town, provided such generated energy is used primarily by the principal user of the property where the SCS is located. Commercial energy generation for sale off site is prohibited.
(2) 
Any SCS that falls within the parameters of the USP process as detailed in the USP application available through the Town Clerk or Code Enforcement Officer shall be eligible to obtain a USP.
D. 
Building permit required; application procedure. All proposed uses of a SCS shall obtain a building permit prior to construction pursuant to the rules of Chapter 165. Unless eligible for the simplified procedures in the USP or as otherwise provided for in this section, the applicant shall first obtain site plan review approval from the Town Planning Board pursuant to § 165-44. The Planning Board may schedule a public hearing following the rules of § 165-44. When site plan review is approved, a building permit may be issued.
E. 
Specific district requirements. SCS are permitted in the following districts subject to these specific regulations:
(1) 
Roof- and wall-mounted.
(a) 
Allowed in all districts.
(b) 
The size shall be limited to the roof area of the principal or accessory building on which it is mounted.
(c) 
Site plan review is not required for single-family dwellings or USP eligible projects.
(d) 
In all districts, SCS that are wall-mounted shall only be mounted on the rear wall of the principal or accessory building.
(2) 
Freestanding.
(a) 
In Residential, Hamlet Residential, Hamlet Commercial, and R-40 Districts: not allowed.
(b) 
In all other districts:
[1] 
The maximum SCS area allowed is based on the lot size as follows:
[a] 
Less than three acres: 700 square feet.
[b] 
Greater than three acres and less than six acres: 1,400 square feet.
[c] 
Greater than six acres: 3,300 square feet.
[2] 
The maximum height of any portion of the SCS above the ground is 10 feet when adjusted to the maximum tilt angle from horizontal of 12°.
[3] 
Minimum setbacks for both principal and accessory structures:
[a] 
Front: only allowed in front yard if minimum setback of 200 feet.
[b] 
Side: 25 feet.
[c] 
Rear: 25 feet.
F. 
General requirements. SCS are subject to the following requirements:
(1) 
All utility services and electrical wiring shall be underground and otherwise be placed within the walls or unobtrusive conduit.
(2) 
No signing, except for safety issues, is allowed.
(3) 
Lot coverage. The area occupied by the freestanding SCS shall be included in lot and building coverage.
(4) 
The location of freestanding SCS shall be at least 25 feet from:
(a) 
Any property line.
(b) 
Any public road right-of-way.
(c) 
Any overhead utility wires, unless otherwise approved by the utility company.
(5) 
Standards. In addition to any standards set forth in the USP, the following standards shall apply to all SCS:
(a) 
The equipment shall be Underwriters Laboratory (UL) or equivalently listed.
(b) 
SCS shall be approved for grid connection.
(c) 
The energy-generating equipment shall have its input/output ratings verified by a recognized independent third party.
(d) 
Contractors installing SCS shall be certified by the North American Board of Certified Energy Practitioners (NABCEP). Contractor's information shall be submitted with the development permit application.
(6) 
Variances to the distance and equipment requirements of this chapter are not permitted.
G. 
Severability. If any clause, sentence, paragraph, subdivision, section or part of this chapter shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof but shall be confined in its operation to the clause, sentence, paragraph, subdivision, section or part thereof directly involved in the controversy in which such judgment is rendered.