[Added 9-10-2019 by L.L. No. 2-2019]
This article is adopted pursuant to §§ 261 through
263 of the Town Law of the State of New York, which authorizes towns
to adopt zoning provisions that advance and protect the health, safety
and welfare of the community, and, in accordance with Town Law of
the State of New York "to make provision for, so far as conditions
may permit, the accommodation of solar energy systems and equipment
and access to sunlight necessary therefor."[1]
[1]
Editor's Note: See Town Law § 263.
It is the purpose of this article of the Town Code to encourage
and promote the safe, effective and efficient use of installed solar
photovoltaic (PV) systems that reduce on-site consumption of utility-supplied
energy while protecting the health, safety and welfare of adjacent
and surrounding land uses and properties.
It is the intent of these regulations to:
A.
Support green economy innovations;
B.
Support New York State in meeting its renewable energy goals established
by the 2015 New York State Energy Plan as implemented through the
Reforming the Energy Vision Institute;
C.
Promote and enhance agricultural viability and preserve productive
agricultural land resources and minimize the displacement of prime,
and prime if drained, soils that are in agricultural production; and
D.
Provide public utilities, facilities and services that efficiently
meet present needs and anticipate future needs of the residents of
the Town of Potsdam.
A.
This article applies to any solar photovoltaic (PV) systems installed
and constructed after the effective date of this article of the Code.
B.
This article also applies to any upgrade, modification or structural
change that alters the physical size, electric generation capacity,
location or placement of an existing solar PV system.
C.
Nonconforming solar PV systems. Nonconforming solar PV systems existing on the effective date of this article may only be altered or expanded in conformance with the limitations and requirements imposed by Chapter 306, Article IV, § 306-10, of the Town of Potsdam Town Code, which regulates nonconforming lots, buildings or uses.
D.
Properties with approved site plan. Notwithstanding the requirements of Chapter 306, Article VI, § 306-29, of this chapter, entitled "Site Plan Review," for any lot or parcel of land that has an approved site plan, the installation of a by-right solar PV system on the lot shall not be considered a change to the approved site plan. This provision shall not be interpreted to exempt lots with an approved site plan from other requirements of this chapter of the Town of Potsdam Town Code.
A.
By-right solar PV systems. In order to encourage use of solar PV systems in the Town of Potsdam, the following systems shall be permitted by right in any zoning district in the Town, provided the system i) is generating electricity only for the land use(s) located on the same lot as the system; ii) system capacity is less than or equal to 25 kW and shall not have the ability to generate more than 110% of the kWhs of electricity consumed over the previous twelve-month period by land use(s) existing on the lot or parcel of land where the system is located or, for new construction, 110% of the estimated annual kWh usage based on a calculation using data available from the U.S. Energy Information Administration, the U.S. Department of Energy or a usage calculator made available by a public utility (e.g., https://www.cpi.coop/my- account/online-usage-calculator/); and iii) the system meets the standards for by-right systems identified in Subsection B below.
B.
Standards for by-right systems.
(1)
Accessory use. All by-right solar PV systems shall be considered
an accessory use.
(2)
Building permit. All by-right PV systems require receipt of
a building permit.
(3)
In no event shall lot coverage for a by-right solar photovoltaic
(PV) system exceed 50% of the lot area.
(4)
Glare. All solar panels shall have anti-reflective coatings.
(5)
For any building-mounted PV system installed on a sloped roof:
(a)
The highest point of the system shall not exceed the highest
point of the roof to which it is attached.
(b)
Solar panels shall be parallel to the roof surface, or tilted
with no more than an eighteen-inch gap between the module frame and
the roof surface. This measurement shall not be taken from any parapet
which might be considered part of a roof.
(6)
For any building-mounted system installed on a flat roof, the
highest point of the system shall not extend more than five feet above
the height of the roof.
(7)
Location in front yard. Notwithstanding the requirements regulating
the location of accessory structures found elsewhere in the chapter,
ground-mounted solar PV systems shall be prohibited in a front yard,
including location in any front yard of a corner lot.
(8)
Every by-right solar PV system shall comply with all applicable
Uniform Fire Prevention and Building Code provisions, the State of
New York Energy Conservation Construction Code, and National Electrical
Code, NFPA 70. For all building-mounted or building-integrated by-right
solar PV systems, the building owner(s) and operator(s) shall affix
a decal or sign notifying emergency response personnel that the building
is equipped with a photovoltaic power source. The required decal or
sign shall be available through the office of the Code Enforcement
Officer and the cost of such decal or sign shall be assessed to the
owner or operator of the premises' electric power source.
A.
Solar PV systems requiring a special use permit. Excluding any building-integrated solar PV systems, building-mounted solar PV systems, and small-scale ground-mounted solar PV systems subject to regulation as a by-right PV solar system pursuant to § 306-34.6, no other type of solar PV system shall be constructed or installed without first obtaining a special use permit and site plan approval from the Planning Board pursuant to Article VI of this chapter. The following solar PV systems require a special use permit and site plan approval ["permitted system(s)"]:
(1)
Large-scale ground-mounted solar PV systems.
(2)
Building-mounted and building-integrated solar PV systems that
have a system capacity greater than 25 kW or the capacity to generate
more than 110% of the kWhs of electricity consumed over the previous
twelve-month period by land uses existing on the lot or parcel of
land where the system is located or for new construction, 110% of
the estimated annual kWh usage calculated based on a calculation using
data available from the U.S. Energy Information Administration, the
U.S. Department of Energy or a usage calculator made available by
a public utility (e.g., https://www.cpi.coop/my-account/online- usage-calculator/).
In applying this standard for existing structures, electricity consumption
shall be determined by submission of utility bills showing electric
usage over said twelve-month period.
(3)
Solar PV systems, regardless of size or location, that generate
and distributes energy a) to the public-utility power grid pursuant
to a net metering agreement, a value of distributed energy resources
(VDER) tariff and/or other such arrangement or b) to an off-site location(s)
pursuant to a power purchase agreement, a lease or contract(s) for
community distributed generation, collective solar and/or other such
arrangement.
(4)
Solar PV systems, regardless of size, mounted on any freestanding
structure that does not constitute the principal use of or a portion
of the principal building located on the subject property.
B.
Classifications. Solar PV systems requiring a special use permit
may be classified as either a principal use or an accessory use as
set forth below.
(1)
Principal use. A solar PV system constructed on a lot or parcel
of land and providing electricity to an off-site user or users pursuant
to a net metering agreement, a value of distributed energy resources
(VDER) tariff and/or other such arrangement or to an off-site location(s)
pursuant to a power purchase agreement, a lease or contract for community
distributed generation and/or other such arrangement shall be classified
as a principal use.
(2)
Accessory use/accessory structure. A solar PV system shall be
considered an accessory use/accessory structure when generating electricity
for the sole consumption of a principal use or building(s) located
on the same lot or parcel of land as the system.
Solar PV systems requiring a special use permit ["permitted
system(s)"] shall be subject to the following standards:
A.
Minimum lot size. All permitted systems shall adhere to the minimum
lot size requirements for the zoning district in which the system
is located, except that for residential districts, the minimum lot
size for ground-mounted solar PV systems shall be one acre.
B.
Utility connections. Utility lines and connections from the permitted
system shall be installed underground, unless otherwise authorized
by the Planning Board for reasons that may include poor soil conditions,
topography of the site, and requirements of the utility provider.
Any authorized aboveground utility lines shall be affixed to utility
poles tall enough to provide 20 feet of clearance as measured from
the shortest distance between the lowest electrical and/or utility
line mounted on the pole and the final grade. Electrical transformers
for utility interconnections may be aboveground if required by the
utility provider.
C.
Glare. All solar panels shall have antireflective coatings.
D.
Fences. Fences not exceeding six feet in height, including open-weave
chain-link fences and solid fences, shall be permitted for the purpose
of screening or enclosing a permitted system, regardless of the district
in which the system is located.
E.
Height. Ground-mounted solar PV systems may not exceed 12 feet in
height.
F.
Maintenance. Excluding building-mounted and building-integrated solar
PV systems, all permitted systems shall to the greatest extent possible
use native, pollinator-friendly plantings for ground cover instead
of gravel, impervious surfaces or turfgrass, and all such plantings
shall be maintained without the use of pesticides or herbicides.
G.
Signs. Solar equipment and any system-related fencing shall not be
used for displaying any advertising. All signs, flags, streamers or
similar items, both temporary and permanent, are prohibited on solar
equipment except: a) the manufacturer's or installer's identification;
b) appropriate warning signs and placards; c) signs that may be required
by a federal, state or local agency or any potential first responders;
and d) signs that provide a twenty-four-hour emergency contact phone
number and warn of any danger.
H.
Location in front yard. Notwithstanding the requirements regulating
the location of accessory structures found elsewhere in the chapter,
permitted large-scale ground-mounted solar PV systems classified as
an accessory use shall be prohibited in a front yard, including location
in any front yard of a corner lot.
I.
Compliance with codes. Every permitted system shall comply with all
applicable Uniform Fire Prevention and Building Code provisions and
the State of New York Energy Conservation Construction Code, National
Electrical Code, and NFPA 70.
J.
Ground-mounted solar PV systems.
(1)
Setbacks. No part of a ground-mounted system shall extend into
the required yards and/or setbacks due to a tracking system or short-term
or seasonal adjustment in the location, position or orientation of
solar-PV-related equipment or parts.
(2)
Setbacks in a residential district and a residential-agricultural
district.
(a)
The location of solar collectors shall meet all applicable setbacks
for accessory structures in the residential or residential-agricultural
zoning district where the project is to be located, but not less than
25 feet from any public highway right-of-way or utility easement,
and natural vegetation shall be preserved within this buffer zone
and, where possible, augmented with additional plantings.
(b)
The setbacks are intended to provide a visual buffer between
the PV system and adjacent dwellings or uses. Plantings within this
area are to be at a height so as to provide, as much as practicable,
a visual screen of the permitted system from residential uses. The
species type, location and planned height of such landscaping shall
be subject to the approval of the Planning Board and to the extent
possible shall consist of native plantings.
(3)
Agricultural lands.
(a)
Permitted systems shall be allowed on lands currently used or
otherwise suitable for agricultural operations.
(b)
Excluding building-mounted and building-integrated solar PV
systems, the following standards are to be implemented by the Planning
Board as part of site plan approval for any land currently used or
suitable to be used for agricultural purposes:
[1]
If the size of the project is at least 20 acres,
the project owner shall hire an environmental monitor (EM) to oversee
the construction, restoration and follow-up monitoring in agricultural
fields. The EM is to be on site whenever construction or restoration
work is occurring.
[2]
Fencing and watering systems associated with rotational
grazing systems and reduction in farmland viability due to the reduction
in remaining productive farmland are to be assessed and mitigated
to the greatest extent possible, including to the greatest extent
possible by using native, pollinator-friendly plantings for ground
cover instead of gravel, impervious surfaces or turfgrass, and all
such plantings shall be maintained without the use of pesticides.
[3]
Structures for overhead collection lines are to
be located upon the nonagricultural areas and along field edges where
possible.
[4]
Access roads are to be located along the edge of
agricultural fields, in areas next to hedgerows and field boundaries
and in the nonagricultural portions of the site.
[5]
There shall be no cut and fill so as to reduce
the risk of creating drainage problems by locating access roads, which
cross agricultural fields, along ridge tops and by following field
contours to the greatest extent possible.
[6]
The width of access roads along agricultural fields
is to be no wider than 16 feet so as to minimize the loss of agricultural
lands and comply with the State of New York Fire Access Code. Access
roads on agricultural fields shall be constructed at grade with the
use of geotextile fabric so that it does not interfere with the continued
use of farm equipment on any surrounding farmland.
[7]
Maintain all existing drainage and erosion control
structures such as diversions, ditches, and tile lines or take appropriate
measures to maintain the design and effectiveness of these structures.
Repair any structure disturbed during construction to as close to
original condition as possible, unless such structures are to be eliminated
based upon a new site plan.
[8]
The surface of solar farm access roads to be constructed
through agricultural fields should be level with the adjacent field
surface where possible.
[9]
Culverts and water bars are to be installed to
maintain natural drainage patterns.
[10]
All topsoil areas to be used for vehicle and equipment
traffic, parking, and equipment lay-down and storage areas are to
be stripped.
[11]
All vehicle and equipment traffic and parking
to the access road and/or designated work areas, such as lay-down
areas, are to be limited in size to the greatest extent practical.
[12]
No vehicles or equipment are to be allowed outside
the work area without prior approval from the landowner and the EM.
[13]
Where an open trench is required for cable installation,
topsoil stripping from the entire work area may be necessary. As a
result, additional work space may be required as part of site plan
approval.
[14]
All topsoil stripped from work areas (parking
areas, electric cable trenches, along access roads) is to be stockpiled
separate from other excavated materials (rock and/or subsoil).
[15]
A maximum of 50 feet of temporary workspace is
to be provided along "open cut" electric cable trenches for proper
topsoil segregation. All topsoil will be stockpiled immediately adjacent
to the area where stripped/removed and shall be used for restoration
on that particular site. No topsoil shall be removed from the site.
The site plan shall clearly designate topsoil stockpile areas in the
field and on the construction drawings.
[16]
Electric interconnect cables and transmission
lines are to be buried in agricultural fields wherever practical.
[17]
Interconnect cables and transmission lines installed
aboveground shall be located outside agricultural field boundaries.
When aboveground cables and transmission lines must cross agricultural
fields, taller structures that provide longer-spanning distances and
locate poles on field edges shall be used to the greatest extent practicable.
All utility poles shall be tall enough to provide 20 feet of clearance
as measured from the shortest distance between the lowest electrical
and/or utility line mounted on the pole and final grade.
[18]
All buried electric cables in cropland, hayland
and improved pasture shall have a minimum depth of 48 inches of cover.
[19]
The St. Lawrence County Soil and Water Conservation
District is to be consulted concerning the type of intercept drain
lines to be used whenever buried electric cables alter the natural
stratification of soil horizons and natural soil drainage patterns.
[20]
In pasture areas, it is necessary to construct
temporary or permanent fences around work areas to prevent livestock
access, consistent with landowner agreements.
[21]
Excess concrete used in the construction of the
site is not to be buried or left on the surface in active agricultural
areas. Concrete trucks will be washed outside of active agricultural
areas.
[22]
All permits necessary for disposal under local,
state and/or federal laws and regulations must be obtained by the
contractor, with the cooperation of the landowner when required.
(4)
Restoration requirements for agricultural land temporarily disturbed
by construction. As necessary, all agricultural land shall be restored
as follows:
(a)
Decompact soil to a depth of 18 inches with a deep ripper or
heavy-duty chisel plow. Soil compaction results should be no more
than 250 pounds per square inch (PSI) as measured with a soil penetrometer.
In areas where the topsoil was stripped, soil decompaction should
be conducted prior to topsoil replacement. Following decompaction,
remove all rocks four inches in size or greater from the surface of
the subsoil prior to replacement of topsoil. Replace the topsoil to
original depth and re-establish original contours where possible.
Remove all rocks four inches and larger from the surface of the topsoil.
Subsoil decompaction and topsoil replacement shall be avoided after
October 1 of each year.
(b)
Regrade all access roads to allow for farm equipment crossing.
(c)
Restore original surface drainage patterns, or other drainage
patterns incorporated into the approved site design by the Planning
Board.
(d)
Seed all restored agricultural areas with the seed mix specified
by the landowner, in order to maintain consistency with the surrounding
areas.
(e)
All damaged subsurface or surface drainage structures are to
be repaired to preconstruction conditions, unless said structures
are to be removed as part of the site plan approval. All surface or
subsurface drainage problems resulting from construction of the solar
energy project shall be addressed with the appropriate mitigation
as determined by the EM, Soil and Water Conservation District, and
the landowner.
(f)
Postpone any restoration practices until favorable (workable,
relatively dry) topsoil/subsoil conditions exist. Restoration is not
to be conducted while soils are in a wet or plastic state of consistency.
Stockpiled topsoil should not be regraded, and subsoil should not
be decompacted until plasticity, as determined by the Atterberg field
test, is adequately reduced. No project restoration activities are
to occur in agricultural fields between the months of October through
May unless favorable soil moisture conditions exist.
(g)
Following site restoration, remove all construction debris from
the site.
(h)
Following site restoration, the project owner is to provide
a monitoring and remediation period of no less than 365 days. General
conditions to be monitored include topsoil thickness, relative content
of rock and large stones, trench settling, crop production, drainage
and repair of severed subsurface drain lines, fences, etc.
(i)
Mitigate any topsoil deficiency and trench settling with imported
topsoil that is consistent with the quality of topsoil on the affected
site. All excess rocks and large stones are to be removed from the
site.
(j)
At the time of abandonment and removal, as such are defined in § 306-34.10 below:
[1]
All aboveground solar array structures are to be
removed and all areas previously used for agricultural production
are to be restored to the fullest extent possible to the condition
that existed prior to the installation of any solar array structures.
[2]
All concrete piers, footers, or other supports
are to be removed to a depth of 48 inches below the soil surface.
[3]
Underground electric lines are to be abandoned
in place.
[4]
Access roads in agricultural areas are to be removed,
unless otherwise specified by the landowner.
Notwithstanding the area, lot and bulk requirements of this
chapter, building-mounted and building-integrated solar PV systems
may be installed on nonconforming buildings as follows:
A.
On the roof of a nonconforming building that exceeds the maximum
height restriction, provided the system does not extend above the
peak or highest point of the roof to which it is mounted.
B.
On a building that does not meet the minimum setback or yard requirements,
provided there is no increase in the extent or degree of nonconformity
with said requirement.
C.
On a building that exceeds the maximum lot coverage requirements,
provided there is no increase in the extent or degree of nonconformity
with said requirement.
A.
Applicability and purpose.
(1)
This section governing abandonment and removal shall apply to
a) any permitted system classified as a principal use and b) all ground-mounted
permitted systems.
(2)
Abandoned ground-mounted or primary use solar PV systems create
a negative visual impact upon the Town, may become unsafe by reason
of their energy-producing capabilities and serve as an attractive
nuisance. It is the purpose of this section to provide for the safety,
health, protection and general welfare of persons and property in
the Town of Potsdam by requiring abandoned ground-mounted or primary
use solar PV systems to be removed pursuant to a decommissioning plan.
B.
Applications. All applications for a ground-mounted or primary use
solar PV system that requires a special use permit shall be accompanied
by a decommissioning plan to be implemented upon abandonment, or cessation
of activity, or in conjunction with removal of the facility, prior
to issuance of a building permit. The decommissioning plan must ensure
the site will be restored to a useful, nonhazardous condition without
delay, including, but not limited to, the following:
(1)
Except as required by § 306-34.8J(4)(j) regarding agricultural lands, the physical removal of all aboveground and below-ground equipment, structures and foundations, including but not limited to all solar arrays, buildings, security barriers, fences, electric transmission lines and components, roadways and other physical improvements to the site.
(2)
Disposal of all solid and hazardous waste in accordance with
local, state and federal waste disposal regulations.
(3)
Restoration of the ground surface and soil.
(4)
Stabilization and revegetation of the site with native seed
mixes and/or plant species (excluding invasive species) to minimize
erosion.
C.
Abandonment. A ground-mounted or primary use solar PV system that
requires a special use permit may be deemed abandoned and require
implementation of the decommissioning plan to the extent applicable
if:
(1)
The applicant begins but does not complete construction of the
project within 18 months after receiving final site plan approval,
the Town may notify the operator and/or the owner to complete construction
and installation of the facility within 180 days. If the owner and/or
operator fails to perform, the Town may notify the owner and/or operator
to implement the decommissioning plan;
(2)
In the event the facility is not completed and functioning within
18 months of the issuance of the final site plan approval, the Town
may notify the operator and/or the owner to complete construction
and installation of the facility within 180 days. If the owner and/or
operator fails to perform, the Town may notify the owner and/or operator
to implement the decommissioning plan; and
(3)
Upon cessation of all activity at a constructed facility for
a period of one year or if the constructed facility fails to generate
or transmit more than 10% of its rated capacity over a continuous
period of 12 months, the Town may notify the owner and/or operator
of the facility to implement the decommissioning plan. Within 180
days of notice being served, the owner and/or operator can either
restore operation equal to 80% of approved capacity or implement the
decommissioning plan.
(4)
If after receiving a notice pursuant to Subsection C(1), (2) or (3) above, the owner and/or operator fails, within 180 days of receipt of the notice, to, if applicable, restore operation equal to 80% of approved capacity or fully implement the decommissioning plan, the Town may, at its discretion, provide for the restoration of the site in accordance with the decommissioning plan and may recover all expenses incurred for such activities from the defaulted owner and/or operator. The cost incurred by the Town shall be assessed against the property on which the system was located, shall become a lien and tax upon the subject property, and shall be enforced and collected with interest by the same officer and in the same manner as other taxes.
(5)
Upon petition to the Planning Board at the time the decommissioning
plan is to be implemented, the Board may permit the system owner to
leave certain underground or aboveground improvements in place, provided
the owner can show that such improvements are part of a plan to redevelop
the site, are not detrimental to such redevelopment, and do not adversely
affect community character or the environment.
D.
Special use permit conditions. The following conditions shall apply to all permitted systems, as defined above in § 306-35. No special use permit shall be issued unless the Planning Board finds that the following conditions have been or will be met.
(1)
A licensed engineer's estimate of the anticipated operational
life of the system.
(2)
Identification of the party responsible for decommissioning.
(3)
Description of any agreement regarding decommissioning between
the responsible party and the landowner (e.g., an escrow account,
a decommissioning trust, removal or surety bonds or a letter of credit,
etc.).
(4)
Excluding building-integrated systems, a schedule showing the
time frame over which decommissioning of the system will occur and
the site restoration work completed.
(5)
Excluding building-integrated systems, a cost estimate prepared
by a licensed professional engineer estimating the full cost of decommissioning
and removal of the solar PV system.
(6)
Annual report. Excluding building-integrated systems, the solar
PV system owner shall annually provide the Town Code Enforcement Officer
a written report stating the rated capacity of the system and a sworn
statement indicating whether the system did or did not generate and
transmit electricity at a rate equal to or greater than 10% of its
rated capacity over each twelve-month period of operation. The report
shall also identify any change of ownership of the solar PV system
and/or the land upon which the system is located and shall identify
any change in the party responsible for decommissioning and removal
of the system upon its abandonment. The first annual report shall
be submitted no later than 45 days after the first 12 months of operation,
and thereafter, annually within 45 days of each successive twelve-month
period.
E.
Notification, failure to perform. If either the system owner, landowner
and/or permittee fails to complete the required decommissioning plan
or restore operations as directed by the Code Enforcement Officer
within the applicable 180-day period, the Code Enforcement Officer
shall notify the system owner, landowner and permittee, by certified
mail, that the subject solar PV system has been deemed abandoned and
the Town intends to revoke the special use permit within 60 days of
mailing said notice. The notice shall also state that the permittee
may appeal the Code Enforcement Officer's determination to the
Town Board and request a public hearing upon the matter.
(1)
Said appeal and request for hearing must be made and received
by the Town Board within 30 days of the mailing of the notice. Failure
by the permittee to submit an appeal and request for hearing within
the thirty-day period will result in the special use permit being
deemed revoked as stated herein.
(2)
In the event the permittee appeals the determination of the
Code Enforcement Officer and requests a hearing, the Town Board shall
schedule and conduct said hearing within 60 days of receiving the
appeal and request. In the event a hearing is held, the Town Board
shall determine whether the solar PV system has been abandoned, whether
to continue the special use permit with conditions as may be appropriate
to the facts and circumstances presented to the Board or whether to
revoke the special use permit and order removal of the solar PV system.
(3)
If the Town Board determines the subject large-scale or net
metering system has been abandoned, the system owner, landowner and/or
permittee shall commence implementation of the decommissioning plan
within 45 days. If the system owner, landowner and/or permittee fail
to commence the implementation of the decommissioning plan within
45 days, the Town may, at its discretion, provide for the restoration
of the site in accordance with the decommissioning plan and may recover
all expenses incurred for such activities from the defaulted owner
and/or operator. The cost incurred by the Town shall be assessed against
the property, shall become a lien and tax upon the property, and shall
be enforced and collected with interest by the same officer and in
the same manner as other taxes.
If any clause, sentence, paragraph, section or part of this
article shall be adjudged by any court of competent jurisdiction to
be invalid, such judgement shall not affect, impair or invalidate
the remainder thereof, but shall be confined in its operation to the
clause, sentence, paragraph, section or part thereof directly involved
in the controversy in which such judgement shall have been ordered.
This article shall take effect immediately upon filing with
the Secretary of State.
