[Added 6-6-2022 by L.L. No. 2-2022]
This Battery Energy Storage System Law is adopted pursuant to Article IX of the New York State Constitution, § 2(c)(6) and (10), New York Statute of Local Governments, § 10(1) and (7); §§ 261 through 263 of the Town Law § 10 of the Municipal Home Rule Law of the State of New York, which authorize the Towns to adopt zoning provisions that advance and protect the health, safety and welfare of the community.
This Battery Energy Storage System Law is adopted to advance
and protect the public health, safety, welfare, and quality of life
of the Town of Wheatfield by creating regulations for the installation
and use of battery energy storage systems, with the following objectives:
A.
To provide a regulatory scheme for the designation of properties
suitable for the location, construction, and operation of battery
energy storage systems.
B.
To ensure compatible land uses in the vicinity of the areas affected
by battery energy storage systems.
C.
To mitigate the impacts of battery energy storage systems on environmental
resources such as important agricultural lands, forests, wildlife
and other protected resources.
D.
To promote public health and safety and prevent risks to the public
and neighboring properties potentially posed by battery storage systems.
As used in this article, the following terms shall have the
meanings indicated:
American National Standards Institute.
An electronic system that protects energy storage systems
from operating outside their safe operating parameters and disconnects
electrical power to the energy storage system or places it in a safe
condition if potentially hazardous temperatures or other conditions
are detected.
One or more devices, assembled together, capable of storing
energy in order to supply electrical energy at a future time, not
to include a stand-alone twelve-volt car battery or an electric motor
vehicle. A battery energy storage system is classified as a Tier 1,
Tier 2 or Tier 3 battery energy storage system as follows:
Tier 1 battery energy storage systems are an accessory use that
have an aggregate energy capacity less than or equal to 600 kWh, which
are located within a room or enclosed area, and which consist of only
a single energy storage system technology.
Tier 2 battery energy storage systems are an accessory use that
have an aggregate energy capacity greater than 600 kWh or are comprised
of more than one storage battery technology in a room or enclosed
area or are located outside of the primary building. Tier 2 battery
energy storage systems may not exceed storage of 110% of two days
of energy for the user.
Tier 3 battery energy storage systems are a primary use or do
not meet the definition of a Tier 1 or Tier 2 system and are limited
in size to one MW (systems over this size are not allowed in the Town).
A single cell or a group of cells connected together electrically
in series, in parallel, or a combination of both, which can charge,
discharge, and store energy electrochemically. For the purposes of
this article, batteries utilized in consumer products are excluded
from these requirements.
The basic electrochemical unit, characterized by an anode
and a cathode, used to receive, store, and deliver electrical energy.
A systematic process that provides documented confirmation
that a battery energy storage system functions according to the intended
design criteria and complies with applicable code requirements.
A building that is built for the primary intention of housing
battery energy storage system equipment, is classified as Group F-1
occupancy as defined in the International Building Code, and complies
with the following:
The building's only use is battery energy storage, energy generation,
and other electrical grid-related operations.
No other occupancy types are permitted in the building.
Occupants in the rooms and areas containing battery energy storage
systems are limited to personnel that operate, maintain, service,
test, and repair the battery energy storage system and other energy
systems.
Administrative and support personnel are permitted in areas
within the buildings that do not contain battery energy storage system,
provided the following:
The areas do not occupy more than 10% of the building area of
the story in which they are located.
A means of egress is provided from the administrative and support
use areas to the public way that does not require occupants to traverse
through areas containing battery energy storage systems or other energy
system equipment.
The New York State Energy Conservation Construction Code
adopted pursuant to Article 11 of the Energy Law, as currently in
effect and as hereafter amended from time to time.
The fire code section of the New York State Uniform Fire
Prevention and Building Code adopted pursuant to Article 18 of the
Executive Law, as currently in effect and as hereafter amended from
time to time.
A U.S. Department of Labor designation recognizing a private
sector organization to perform certification for certain products
to ensure that they meet the requirements of both the construction
and general industry OSHA electrical standards.
National Electric Code.
National Fire Protection Association.
All buildings that contain a battery energy storage system
and do not comply with the dedicated-use building requirements.
Any property that is not a participating property.
Any residence located on nonparticipating property.
Any building in Occupancy Group A, B, E, I, R, as defined
in the International Building Code, including but not limited to schools,
colleges, daycare facilities, hospitals, correctional facilities,
public libraries, theaters, stadiums, apartments, hotels, and houses
of worship.
A battery energy storage system host property or any real
property that is the subject of an agreement that provides for the
payment of monetary compensation to the landowner from the battery
energy storage system owner (or affiliate) regardless of whether any
part of a battery energy storage system is constructed on the property.
Underwriters Laboratory, an accredited standards developer
in the US.
The New York State Uniform Fire Prevention and Building Code
adopted pursuant to Article 18 of the Executive Law, as currently
in effect and as hereafter amended from time to time.
A.
The requirements of this article shall apply to all battery energy
storage systems permitted, installed, or modified in Town of Wheatfield
after the effective date of this article, excluding general maintenance
and repair.
B.
Battery energy storage systems constructed or installed prior to
the effective date of this article shall not be required to meet the
requirements of this article.
C.
Modifications to, retrofits or replacements of an existing battery
energy storage system that increase the total battery energy storage
system designed discharge duration or power rating shall be subject
to this article.
A.
A building permit and an electrical permit shall be required for
installation of all battery energy storage systems.
B.
Issuance of permits and approvals by the Wheatfield Planning Board
shall include review pursuant to the State Environmental Quality Review
Act [ECL Article 8 and its implementing regulations at 6 NYCRR Part
617 (SEQRA)].
C.
All battery energy storage systems, all dedicated-use buildings,
and all other buildings or structures that: 1) contain or are otherwise
associated with a battery energy storage system; and 2) are subject
to the Uniform Code and/or the Energy Code shall be designed, erected,
and installed in accordance with all applicable provisions of the
Uniform Code, all applicable provisions of the Energy Code, all applicable
provisions of the codes, regulations, and industry standards as referenced
in the Uniform Code, the Energy Code, and the Town Code, and other
applicable local, county, state and federal codes and regulations.
D.
Fees. Fees as set by the Town Board periodically by resolution must
be paid at the time of submission of an application for site plan
approval, special use permit, a building permit, for an amended building
permit, or for renewal of a building permit. The applicant, for Tier
2 or 3 projects, may also be required to pay the costs of the Town's
engineers and attorneys for time spent reviewing and analyzing the
application.
Tier 1 battery energy storage systems shall be permitted in
all zoning districts, subject to the Uniform Code, and any other applicable
local, NYS or federal laws or regulations, and the "battery energy
storage system permit," of the Town of Wheatfield, and are exempt
from site plan review.
Tier 2 battery energy storage systems are permitted through
the issuance of a special use permit within the following zoning districts:
Residential-3 (R-3) - limited to only multifamily units, Restricted
Commercial (R-C), Commercial (C-1), Light Industrial (M-1), General
Industrial (M-2). Tier 2 battery energy storage systems shall be subject
to the Uniform Code and the site plan application requirements set
forth in this section. Tier 2 battery energy storage systems associated
with a solar or wind energy project shall also only be allowed in
conformance with the Town laws associated with these type projects
(solar or wind) and this article.
A.
Applications for the installation of Tier 2 battery energy storage
system shall be:
(1)
Reviewed by the Planning Board for completeness. An application
shall be complete when it addresses all matters listed in this article,
including, but not necessarily limited to: i) compliance with all
applicable provisions of the Uniform Code and all applicable provisions
of the Energy Code; and ii) matters relating to the proposed battery
energy storage system and floodplain, utility lines and electrical
circuitry, signage, lighting, vegetation and tree-cutting, noise,
decommissioning, site plan and development, special use and development,
ownership changes, safety, and permit time frame and abandonment.
Applicants shall be advised within 10 business days after the first
Planning Board meeting on the application of the completeness of their
application or any deficiencies that must be addressed prior to substantive
review.
(2)
Subject to a public hearing to hear all comments for and against
the application. The Planning Board of the Town shall have a notice
printed in a newspaper of general circulation in the Town in accordance
with the Town's special use permit requirements. Applicants shall
also have delivered the notice by first class mail to adjoining landowners
or landowners within 500 feet of the property at least 10 days prior
to such a hearing. Proof of mailing shall be provided to the Planning
Board at the public hearing.
(3)
Referred to the County Planning Board pursuant to General Municipal
Law § 239-m if required.
(4)
Upon closing of the public hearing, the Planning Board shall
take action on the application within 62 days of the public hearing
(or after the SEQR process is completed, if not completed on the day
of the public hearing), which can include approval, approval with
conditions, or denial. The sixty-two-day period may be extended upon
consent by both the Planning Board and applicant.
B.
Utility lines and electrical circuitry. All on-site utility lines
shall be placed underground to the extent feasible and as permitted
by the serving utility, with the exception of the main service connection
at the utility company right-of-way and any new interconnection equipment,
including without limitation any poles, with new easements and right-of-way.
C.
Signage.
(1)
The signage shall be in compliance with ANSI Z535 and shall
include the type of technology associated with the battery energy
storage systems, any special hazards associated, the type of suppression
system installed in the area of battery energy storage systems, and
twenty-four-hour emergency contact information, including reach-back
phone number.
(2)
As required by the NEC, disconnect and other emergency shutoff
information shall be clearly displayed on a light reflective surface.
A clearly visible warning sign concerning voltage shall be placed
at the base of all pad-mounted transformers and substations.
(3)
Shall be in conformance with the Town of Wheatfield signage
laws.
D.
Lighting. Lighting of the battery energy storage systems shall be
limited to that minimally required for safety and operational purposes
and shall be reasonably shielded and downcast from abutting properties.
E.
Vegetation and tree cutting. Areas within 10 feet on each side of
Tier 2 battery energy storage systems shall be cleared of combustible
vegetation and other combustible growth. Single specimens of trees,
shrubbery, or cultivated ground cover such as green grass, ivy, succulents,
or similar plants used as ground covers shall be permitted provided
that they do not form a means of readily transmitting fire. Removal
of trees should be minimized to the extent possible.
F.
Noise. The one-hour average noise generated from the battery energy
storage systems, components, and associated ancillary equipment shall
not exceed a noise level of 45 dBA as measured at the outside wall
of any nonparticipating residence or occupied community building.
Applicants may submit equipment and component manufacturers noise
ratings to demonstrate compliance. The applicant may be required to
provide operating sound pressure level measurements from a reasonable
number of sampled locations at the perimeter of the battery energy
storage system to demonstrate compliance with this standard.
G.
Soil removal. All topsoil disturbed during construction reconstruction
or modification of each battery storage system will be stockpiled
and returned to the site upon completion of the activity that disturbed
the soil. In the event of a fire or explosion, all contaminated soil
must be removed and disposed of at an approved facility.
H.
Decommissioning.
(1)
Decommissioning plan. The applicant shall submit a decommissioning
plan, developed in accordance with the Uniform Code, to be implemented
upon abandonment and/or in conjunction with removal from the facility.
The decommissioning plan shall include:
(a)
A narrative description of the activities to be accomplished,
including who will perform that activity and at what point in time,
for complete physical removal of all battery energy storage system
components, structures, equipment, security barriers, and transmission
lines from the site.
(b)
Disposal of all solid and hazardous waste in accordance with
local, state, and federal waste disposal regulations.
(c)
The anticipated life of the battery energy storage system.
(d)
The estimated decommissioning costs and how said estimate was
determined (no recycle costs will be allowed in this estimate).
(e)
The method of ensuring that funds will be available for decommissioning
and restoration.
(f)
The method by which the decommissioning cost will be kept current.
(g)
The manner in which the site will be restored, including a description
of how any changes to the surrounding areas and other systems adjacent
to the battery energy storage system, such as, but not limited to,
structural elements, building penetrations, means of egress, and required
fire detection suppression systems, will be protected during decommissioning
and confirmed as being acceptable after the system is removed.
(h)
A listing of any contingencies for removing an intact operational
energy storage system from service, and for removing an energy storage
system from service that has been damaged by a fire or other event.
(2)
Decommissioning fund. The owner and/or operator of the energy
storage system, shall continuously maintain a fund or bond payable
to the Town, in a form approved by the Town Attorney for the removal
of the battery energy storage system, in an amount to be determined
by the Town, for the period of the life of the facility. This fund
may consist of a letter of credit from a State of New York licensed-financial
institution. All costs of the financial security shall be borne by
the applicant.
I.
Site plan application. For a Tier 2 battery energy storage system
requiring a special use permit, site plan approval shall be required.
Any site plan application shall include the following information:
(1)
Property lines and physical features, including roads, for the
project site.
(2)
Proposed changes to the landscape of the site, grading, vegetation
clearing and planting, exterior lighting, and screening vegetation
or structures.
(3)
A one-line electrical diagram detailing the battery energy storage
system layout, associated components, and electrical interconnection
methods, with all National Electrical Code compliant disconnects and
over current devices.
(4)
A preliminary equipment specification sheet that documents the
proposed battery energy storage system components, inverters and associated
electrical equipment that are to be installed. A final equipment specification
sheet shall be submitted prior to the issuance of building permit.
(5)
Name, address, and contact information of proposed or potential
system installer and the owner and/or operator of the battery energy
storage system. Such information of the final system installer shall
be submitted prior to the issuance of building permit.
(6)
Name, address, phone number, and signature of the project applicant,
as well as all the property owners, demonstrating their consent to
the application and the use of the property for the battery energy
storage system.
(7)
Zoning district designation for the parcel(s) of land comprising
the project site.
(8)
Commissioning plan. Such plan shall document and verify that
the system and its associated controls and safety systems are in proper
working condition per requirements set forth in the Uniform Code.
Where commissioning is required by the Uniform Code, battery energy
storage system commissioning shall be conducted by a New York State
(NYS) licensed professional engineer after the installation is complete
but prior to final inspection and approval. A corrective action plan
shall be developed for any open or continuing issues that are allowed
to be continued after commissioning. A report describing the results
of the system commissioning and including the results of the initial
acceptance testing required in the Uniform Code shall be provided
to the Town prior to final inspection and approval and maintained
at an approved on-site location.
(9)
Fire safety compliance plan. Such plan shall document and verify
that the system and its associated controls and safety systems are
in compliance with the Uniform Code, NFPA standards and other applicable
codes. This plan shall be reviewed by the Town Fire Department.
(10)
Operation and maintenance manual. Such plan shall describe continuing
battery energy storage system maintenance and property upkeep, as
well as design, construction, installation, testing and commissioning
information and shall meet all requirements set forth in the Uniform
Code.
(11)
Erosion and sediment control and storm water management plans
prepared to New York State Department of Environmental Conservation
standards, if applicable, and to such standards as may be established
by the Planning Board.
(12)
Engineering documents must be signed and sealed by a NYS licensed
professional engineer.
(13)
Emergency operations plan. A copy of the approved emergency
operations plan shall be given to the system owner, the local fire
department, and local fire code official. A permanent copy shall also
be placed in an approved location to be accessible to facility personnel,
fire code officials, and emergency responders. The emergency operations
plan shall include the following information:
(a)
Procedures for safe shutdown, de-energizing, or isolation of
equipment and systems under emergency conditions to reduce the risk
of fire, electric shock, and personal injuries, and for safe start-up
following cessation of emergency conditions.
(b)
Procedures for inspection and testing of associated alarms,
interlocks, and controls.
(c)
Procedures to be followed in response to notifications from
the battery energy storage management system, when provided, that
could signify potentially dangerous conditions, including shutting
down equipment, summoning service and repair personnel, and providing
agreed upon notification to fire department personnel for potentially
hazardous conditions in the event of a system failure.
(d)
Emergency procedures to be followed in case of fire, explosion,
release of liquids or vapors, damage to critical moving parts, or
other potentially dangerous conditions. Procedures can include sounding
the alarm, notifying the fire department, evacuating personnel, de-energizing
equipment, and controlling and extinguishing the fire.
(e)
Response considerations similar to a safety data sheet (SDS)
that will address response safety concerns and extinguishment when
an SDS is not required.
(f)
Procedures for dealing with battery energy storage system equipment
damaged in a fire or other emergency event, including maintaining
contact information for personnel qualified to safely remove damaged
battery energy storage system equipment from the facility.
(g)
Other procedures as determined necessary by the Town to provide
for the safety of occupants, neighboring properties, and emergency
responders.
(h)
Procedures and schedules for conducting drills of these procedures
and for training local first responders on the contents of the plan
and appropriate response procedures.
J.
Special use permit standards.
(1)
Setbacks. Tier 2 battery energy storage systems placed outside
of the primary structure shall comply with the setback requirements
of the underlying zoning district for principal structures or as prescribed
below, whichever is greater. The systems:
(2)
Height. Tier 2 battery energy storage systems shall be limited
to 10 feet in height.
(3)
Fencing requirements. Tier 2 battery energy storage systems,
including all mechanical equipment, shall be enclosed by a seven-foot-high
fence with a self-locking gate to prevent unauthorized access unless
housed in a dedicated-use building and not interfering with ventilation
or exhaust ports, or as otherwise required in federal, state, local
laws and codes, including national codes and standards, and/or professional
consensus standards.
(4)
Screening and visibility. Tier 2 battery energy storage systems
shall have views minimized from adjacent properties to the extent
reasonably practicable using architectural features, earth berms,
landscaping, or other screening methods that will harmonize with the
character of the property and surrounding area and not interfering
with ventilation or exhaust ports.
K.
Ownership changes. If the owner of the battery energy storage system
changes or the owner of the property changes, the special use permit
shall remain in effect, provided that the successor owner or operator
assumes in writing all of the obligations of the special use permit,
site plan approval, and decommissioning plan. A new owner or operator
of the battery energy storage system shall notify the Town of Wheatfield
of such change in ownership or operator within 30 days of the ownership
change. A new owner or operator must provide such notification to
the Town in writing. The special use permit and all other local approvals
for the battery energy storage system would be void if a new owner
or operator fails to provide written notification to the Town in the
required timeframe. Reinstatement of a void special use permit will
be subject to the same review and approval processes for new applications
under this article.
Tier 3 battery energy storage systems are permitted through
the issuance of a special use permit within the Town's Light Industrial
(M-1) or General Industrial (M-2) districts and shall be subject to
the Uniform Code and the site plan application requirements set forth
in this section. These systems shall be subject to the same processes,
standards, and requirements for Tier 2 systems and other requirements
of this Code, with the following additional or modified standards
and requirements.
A.
Special use permit standards.
(1)
Setbacks. Tier 3 battery energy storage systems shall be setback
a minimum of 500 feet from any property lane, and if any adjoining
property is zoned residential or commercial, that setback shall be
increased to 1,000 feet.
(2)
Height. Tier 3 battery energy storage systems shall have building/structure
height limitation of 20 feet.
(3)
Fencing requirements. Tier 3 battery energy storage systems,
including all mechanical equipment, shall be enclosed by a seven-foot-high
fence with a self-locking gate to prevent unauthorized access, or
as otherwise required in federal, state, local laws and codes including
impacting national codes, standards, and/or professional consensus
standards.
(4)
Screening and visibility. Tier 3 battery energy storage systems
shall have views minimized from adjacent properties to the extent
reasonably practicable using architectural features, earth berms,
landscaping, or other screening methods that will harmonize with the
character of the property and surrounding area and not interfering
with ventilation or exhaust ports. The Planning Board shall provide
the direction on the location and type of screening based on a visual
analysis/study to be submitted by the applicant.
(5)
Safety standards. Tier 3 battery energy storage systems shall
meet all required New York State and federal safety standards including,
but not limited to requirements for spill containment, personal protection
(eye wash stations, safety showers, etc.) and fire suppression. After
completion of a Tier 3 system but prior to beginning operation, the
fire department and applicable emergency service providers will be
provided a training and education "day" with the owner and equipment
manufacturers on the system (at the cost of the owner/applicant).
(6)
A road use agreement with the Town will be required if utilizing
Town roads for construction access.
A.
System certification. Battery energy storage systems and equipment
shall be listed by a nationally recognized testing laboratory to UL
9540, or most recent standard (standard for battery energy storage
systems and equipment) with subcomponents meeting each of the following
standards (or the most recent standard) as applicable:
(1)
UL 1973 (Standard for Batteries for Use in Stationary, Vehicle
Auxiliary Power, and Light Electric Rail Applications).
(2)
UL 1642 (Standard for Lithium Batteries).
(3)
UL 1741 or UL 62109 (Inverters and Power Converters).
(4)
Certified under the applicable electrical, building, and fire
prevention codes as required.
(5)
Alternatively, field evaluation by an approved testing laboratory
for compliance with UL 9540 and applicable codes, regulations and
safety standards may be used to meet system certification requirements.
B.
Site access. Battery energy storage systems shall be maintained in
good working order and in accordance with industry standards. Site
access shall be maintained, including snow removal at a level acceptable
to the local fire department and, if the Tier 2 or Tier 3 battery
energy storage system is located in an ambulance district, the local
ambulance corps.
C.
Battery energy storage systems, components, and associated ancillary
equipment shall have required working space clearances, and electrical
circuitry shall be within weatherproof enclosures marked with the
environmental rating suitable for the type of exposure in compliance
with NFPA 70.
A.
The special use permit and site plan approval for a battery energy
storage system shall be valid for a period of 12 months, provided
that a building permit is issued for construction and construction
is commenced. In the event construction is not completed in accordance
with the final site plan, as may have been amended and approved, as
required by the Planning Board, within 12 months after approval, the
Town may extend the time to complete construction for 180 days. If
the owner and/or operator fails to perform substantial construction
after 18 months, the approvals shall expire.
B.
The battery energy storage system shall be considered abandoned when
it ceases to operate consistently for more than one year. If the owner
and/or operator fails to comply with decommissioning upon any abandonment,
the Town may, at its discretion, enter the property and utilize the
available bond and/or security for the removal of a Tier 2 or Tier
3 battery energy storage system and restoration of the site in accordance
with the decommissioning plan.
A.
Work to remain accessible and exposed. Work shall remain accessible and exposed until inspected and accepted by the Code Enforcement Officer. The permit holder shall notify the Code Enforcement Officer when any element of work described in Subsection B of this section is ready for inspection.
B.
Elements of work to be inspected. The following elements of the construction
process shall be inspected, where applicable:
(1)
Work site prior to the issuance of a building permit.
(2)
Footing and foundation.
(3)
Preparation for concrete slab.
(4)
Framing.
(5)
Building systems, including underground and rough-in.
(6)
Fire-resistant construction.
(7)
Fire-resistant penetrations.
(8)
Solid-fuel-burning heating appliances, chimneys, flues or gas
vents.
(9)
Energy Code compliance.
(10)
Inspection after all work authorized by the building permit
has been completed and signed off by the Town Building Inspector and
Town Engineer.
(11)
A final inspection by the fire marshal must be completed prior
to activation.
C.
Inspection results. After inspection, the work or a portion thereof
shall be noted as satisfactory as completed, or the permit holder
shall be notified as to where the work fails to comply with the Uniform
Code or Energy Code. Work not in compliance with any applicable provision
of the Uniform Code or Energy Code shall remain exposed until such
work shall have been brought into compliance with all applicable provisions
of the Uniform Code and the Energy Code, reinspected, and found satisfactory
as completed.
D.
Fee. A fee will be set by the Town Board for construction inspections
and that fee must be paid prior to or at the time of each inspection
performed pursuant to this section.
Any violation of this Battery Energy Storage System Law shall
be subject to the same enforcement requirements, including the civil
and criminal penalties, provided for in the zoning or land use regulations
of the Town.
The invalidity or unenforceability of any section, subsection,
paragraph, sentence, clause, provision, or phrase of the aforementioned
sections, as declared by the valid judgment of any court of competent
jurisdiction to be unconstitutional, shall not affect the validity
or enforceability of any other section, subsection, paragraph, sentence,
clause, provision, or phrase, which shall remain in full force and
effect.
