A use, building or structure lawfully in existence at the effective
date of this chapter which shall be made nonconforming at the passage
of this chapter or any applicable amendment thereto may be continued,
except as otherwise provided in this article.
The following standards shall apply to enlargements, extensions
or reconstructions of nonconforming uses:
A.
Restoration and reconstruction. Any nonconforming use or structure
partially damaged by fire, casualty or act of God may be repaired
and used as before, provided that the floor area of such use, building
of structure shall not exceed the floor area or building volume which
existed prior to such damage. All repairs shall be completed within
two years after damages occur or such use shall not be rebuilt except
as a conforming use. In the event that total destruction occurs or
the Building Inspector orders said use or structure completely rebuilt,
then the provisions set forth below shall apply.
(1)
Reconstruction. When a nonconforming use or structure is destroyed
or damaged or beyond repair or when the owner or tenant of said use
or structure desires to rebuild for any reason, the Building Inspector
may authorize such reconstruction if the building would not constitute
a substantial enlargement of the use or would, on the whole, create
greater conformity with this chapter or alleviate an existing nuisance.
(2)
Nonconforming residences. Nothing under this article shall prevent
any residence from being rebuilt or reconstructed in the event of
fire or other disaster. Nothing under this article shall prevent expansion
of the floor area of a residence, provided that all required setbacks
have been met.
B.
Enlargement or expansion. An enlargement or expansion of a nonconforming
use is expressly prohibited.
[Amended 10-22-2014 by L.L. No. 2-2014]
C.
Repairs.
(1)
Normal maintenance repair and incidental alteration of a structure
containing a nonconforming use is permitted, provided that it does
not extend the area or volume of space occupied by the nonconforming
use.
(2)
A building or other structure containing residential nonconforming
uses may be altered in any way to improve interior livability. No
structural alterations shall be made which would increase the number
of dwelling units.
D.
Prior approval. Nothing herein contained shall require any change
in the plans, construction or designated use of a building complying
with existing laws, a permit for which shall have been obtained before
the date of adoption of this chapter or any applicable amendment thereto,
and the ground-story framework of which, including the second tier
of beams, shall have been completed within six months of the date
of the permit, and which entire building shall have been completed
according to such plans as have been filed, within one year of the
date of adoption of this chapter or any applicable amendment thereto.
E.
Changes and conversions of nonconforming uses.
(1)
Basic standard.
(a)
There shall be a presumption against changing a nonconforming use to another nonconforming use, except in the case of conversions of seasonal residential communities that are converted to permanent single-family, two-family or multifamily dwellings in accordance with § 345-36E(2) of this Code. Such presumption may be overcome by a finding of the Planning Board that the proposed new nonconforming use serves a compelling social, human services, governmental, recreational, or similar need in the community. The burden to present the necessary factual basis to overcome the presumption shall be on the applicant. Upon establishing the requisite need and overcoming such presumption where required, the applicant may, with special use approval from the Planning Board, convert an existing nonconforming use to another nonconforming use.
(b)
In addition to the standards set forth for the approval of special uses set forth at § 345-30I of this Code, the Planning Board may allow by use the conversion or intensification of a nonconforming use to a different nonconforming use or uses that are substantially similar to the existing nonconforming use, upon finding that the proposed use:
[1]
Will not adversely affect the surrounding property or uses for
reason of a change in the character of any structure; the location
and character of any proposed activities or operations; or signs,
lighting, noise, dust, refuse, odor, traffic congestion or hours of
operation.
[2]
Will result in the nonconforming property being kept in as good
or better physical condition; thus, preserving property values in
the surrounding neighborhood;
[3]
Will result in the preservation of structures or open spaces
of historical interest or importance where applicable;
[4]
Does not require an increase in the size of any building containing
the nonconforming use or uses;
[5]
Does not encroach upon areas within any building already used
for conforming uses; and
(2)
Conversions of seasonal residential communities. Existing seasonal
residential communities may be converted to permanent single-family,
two-family or multifamily dwellings subject to the following standards:
(a)
The number of new dwellings permitted shall be limited to 50%
of existing seasonal residential units in the case of new single-family
dwellings, 65% of existing seasonal residential units in the case
of new two-family dwellings and 80% of existing seasonal residential
units in the case of new multifamily dwellings, provided that any
such property shall be entitled to no less density than would otherwise
be permitted within that zoning district for a new use of the same
nature.
(b)
All sewage and water supply systems for any such conversion
shall meet current standards. Existing systems intended for reuse
shall be inspected and certified as meeting current standards by a
licensed professional engineer and approved by the Town of Bethel.
Should the conversion project be located on the Town of Bethel public
sewer system and involve increased sewage flows, a certification from
the Town Sewer District that adequate capacity exists to serve the
new project shall be required.
(c)
All such conversion projects shall require, at a minimum, the
completion of a full environmental assessment form.
(d)
The Planning Board may require inventorying of existing mature
trees, existing mature tree preservation, and additional project landscaping
and buffering measures to upgrade the appearance of the property.
The Planning Board may also require additional public improvements
such as sidewalks to facilitate access to the property. The Planning
Board shall also be authorized to impose such additional conditions
on approval of the conversion project as may be required to ensure
it will represent a property improvement and be in harmony with the
Comprehensive Plan and existing neighborhood character.
F.
Nonconforming lots.
(1)
Notwithstanding the provisions of § 345-12 hereof, the owner, including any subsequent owner, of any lot that was eligible to receive a building permit to construct a single-family dwelling on said lot prior to December 13, 2006, shall be entitled to receive a building permit to construct a single-family dwelling on said lot, provided that such lot shall consist of a minimum of 40,000 square feet of lot area, notwithstanding that the current zoning district in which the subject lot is located requires a density greater than 40,000 square feet of lot area for a single-family dwelling.
(2)
Notwithstanding the provisions of § 345-36F(1), above, no such building permit shall be granted as provided therein if the applicant for such building permit is the owner of adjacent real property that would otherwise allow for compliance with applicable district density standards.
The discontinuance of a nonconforming use for a period of 24 months and/or the change of use to more restricted or conforming use for any period of time shall be considered an abandonment thereof, and such nonconforming use shall not thereafter be revived. Nonconforming signs shall be subject to § 345-23P, and the balance of the requirements of § 345-23, where applicable.
[Added 4-26-2012 by L.L. No. 1-2012]
A.
Explicitly prohibited uses.
(1)
The following uses and activities (being respectively defined in Subsection C below of this § 345-38) 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)
Injection well;
(b)
Land application facility;
(c)
Natural gas and/or petroleum exploration activities;
(d)
Natural gas and/or petroleum extraction activities;
(e)
Natural gas and/or petroleum extraction, exploration or production
waste disposal/storage facility;
(f)
Natural gas and/or petroleum extraction, exploration or production
waste dump;
(g)
Natural gas compression facility;
(h)
Natural gas processing facility;
(i)
Nonregulated pipelines;
(j)
Underground injection;
(k)
Underground natural gas storage;
(l)
High-impact uses;
(m)
Hazardous waste landfill (subject to the requirements of New
York Environmental Conservation Law § 27-1107); and
(n)
Gambling.
(2)
Any condition caused or permitted to exist in violation of this Subsection A 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 chapter as "explicitly prohibited uses," any one of the above expressly prohibited uses may be referred to in this chapter as an "explicitly prohibited use," and any combination of more than one such use may also be referred to as "explicitly prohibited uses."
B.
Prohibition against hazardous waste landfills, dumps, natural gas
and/or petroleum extraction, exploration or production waste dumps
and natural gas and/or petroleum extraction, exploration or production
waste disposal/storage facilities.
(1)
The Town of Bethel hereby exercises its authority and right under
New York Environmental Conservation Law § 27-0711 to adopt
a local law that is consistent with the Environmental Conservation
Law Article 27, such consistency demonstrated by the fact that this
chapter 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 operate a natural gas and/or
petroleum extraction, exploration or production waste disposal/storage
facility, hazardous waste landfill, or dump. The foregoing prohibition
regarding the operation of a hazardous waste landfill shall be subject
to the requirements of New York Environmental Conservation Law § 27-1107.
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 extraction, exploration or production wastes.
C.
AGRICULTURE USE
DUMP
GAMBLING
GATHERING LINE or PRODUCTION LINE
HAZARDOUS WASTE
HAZARDOUS WASTE LANDFILL
HIGH-IMPACT USES
(1)
(a)
(b)
(c)
(d)
(2)
(a)
(b)
(c)
(d)
INJECTION WELL
(1)
(2)
(3)
(4)
(5)
LAND APPLICATION FACILITY
NATURAL GAS
NATURAL GAS AND/OR PETROLEUM EXPLORATION ACTIVITIES
NATURAL GAS AND/OR PETROLEUM EXTRACTION ACTIVITIES
NATURAL GAS AND/OR PETROLEUM EXTRACTION, EXPLORATION OR PRODUCTION
WASTES
(1)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(2)
(3)
NATURAL GAS AND/OR PETROLEUM EXTRACTION, EXPLORATION OR PRODUCTION
WASTE DISPOSAL/STORAGE FACILITY
NATURAL GAS AND/OR PETROLEUM EXTRACTION, EXPLORATION OR PRODUCTION
WASTE DUMP
NATURAL GAS COMPRESSION FACILITY
NATURAL GAS PROCESSING FACILITY
NONREGULATED PIPELINES
PIPELINE
PUBLIC UTILITY
PUBLIC UTILITY FACILITY
RADIOACTIVE MATERIAL
RADIOACTIVE MATERIAL SPOILS
RADIATION
SUBSURFACE
TRANSMISSION LINE
UNDERGROUND INJECTION
UNDERGROUND NATURAL GAS STORAGE
WASTE-TO-ENERGY FACILITY
WATER or WATER RESOURCES
Defined terms applicable to this § 345-38. For purposes of this § 345-38, the following terms shall have the meanings respectively set forth below:
Land used for the production of crops and/or livestock and
livestock products (as those terms are defined at § 301
of the New York State Agriculture and Markets Law).
The use of real property operated without a permit or other
governmental authorization for the disposal of any type of waste,
including solid waste, garbage, or trash in which such unwanted materials
are deposited, disposed, discharged, injected, placed, buried or discarded
without intention of further use.
A use devoted to the wagering of money or something of material value on a contest of chance or a future contingent event not under the control or influence of those making wagers, upon an agreement or understanding that those making wagers will receive something of value in the event of a certain outcome. Notwithstanding the forgoing definition, gambling shall not include any lottery operated by the State of New York and the sale of lottery tickets in connection therewith as may be authorized and prescribed by the Legislature or any use as may be authorized in accordance with Chapter 97 of the Code, entitled "Bingo," or Chapter 186 of the Code, entitled "Games of Chance."
Any system of pipelines (and other equipment such as drip
stations, vent stations, pigging facilities, valve box, transfer pump
station, measuring and regulating equipment, yard and station piping,
and cathodic protection equipment), used to move oil, gas, or liquids
from a point of production, treatment facility or storage area to
a transmission line, which is exempt from the Federal Energy Regulatory
Commission's jurisdiction under Section 1(b) of the Natural Gas Act
and which does not meet the definition of a major utility transmission
facility under the Public Service Law of New York, Article 7, § 120(2)(b).
Shall have the meaning set forth at New York Environmental
Conservation Law § 27-0901(3).
The use of real property pursuant to a permit issued by the
governmental authority with jurisdiction over its operation as a site
for the disposal of hazardous waste through burial or where such wastes
are applied to the soil surface or injected into the upper layer of
the soil.
The following uses and activities are specifically declared
and defined to be high-impact uses:
Waste-to-energy facilities;
Dumps;
Industrial or manufacturing processes engaged in the production of any products classified under the following North American Industry Classification (NAIC) 2007 system code numbers: veneer, plywood and engineered wood product manufacturing (3212), except for truss manufacturing (321214), which shall not be included as a high-impact use; pulp, paper and paperboard manufacturing (3221); petroleum and coal manufacturing (3241); basic chemical manufacturing (3251); pesticide, fertilizer and other agricultural chemical manufacturing (3253); other chemical products and preparation manufacturing (3259); clay product and refractory manufacturing (3271); glass and glass product manufacturing (3272); cement and concrete manufacturing (3273); lime and gypsum manufacturing (3274); other nonmetallic mineral product manufacturing (3279); iron steel mills and ferroalloy manufacturing (3311); steel product manufacturing from purchased steel (3312); alumina and aluminum production and processing (3313); nonferrous metal (not alum) production and processing (3314); foundries (3315); resin, synthetic rubber, and artificial synthetic fibers and filaments manufacturing (3252); rubber products manufacturing (3262); and leather and allied product manufacturing (3161); provided, however, that notwithstanding the foregoing, manufacturing or industrial processes classified under NAIC system code numbers pottery, ceramics, and plumbing fixture manufacturing (32711); vitreous china, fine earthenware, and other pottery product manufacturing (327112); other pressed and blown glass and glassware manufacturing (327212); glass product manufacturing made of purchased glass (327215); and leather and hide tanning and finishing (316110) shall not be considered a high-impact use if the total number of full and/or part-time employees does not exceed five persons engaged in the manufacturing or industrial process in question and the use is not otherwise a high-impact use as defined in Subsection (1)(d) below; and
Any other use likely to have a significant negative impact upon
the environment; or cause or significantly contribute to an increase
in mortality; or an increase in serious irreversible, or incapacitating
reversible illness; or pose a substantial present or potential hazard
to human health due to the nature of its operation, materials used
and/or wastes generated. Any use requiring a permit from a state or
federal governmental agency, which permit would allow for the discharge,
storage, transport, disposal, or release of contamination, shall be
evidence of a high-impact use, as determined by the type and volume
of contamination. High-impact uses include those uses which have associated
therewith any detrimental or obnoxious noise, vibration, smoke, odors,
dust, heavy truck traffic, toxic or hazardous raw materials or hazardous
wastes, and/or contamination.
For purposes of this chapter, any use, other than a manufacturing use that is defined as a high-impact use by operation of Subsection (1)(d), above, shall not be deemed a high-impact use if it is any of the following:
Agriculture use;
Any use that is specifically articulated in this chapter as
allowed by right (within an appropriate zoning district) as a principal
permitted or accessory use;
Any use that is specifically articulated in this chapter as
allowed (within an appropriate district) as a principal permitted
or accessory use by special use permit; or
Any use that is specifically articulated in the Town Code as
a permissible use pursuant to a permit issued by the Town and that
said use is conducted within an appropriate zoning district.
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, through which fluids (which may
or may not include semisolids) are injected into the subsurface and
90% or more of such fluids do not return to the surface within a period
of 90 days. The definition of injection wells does not include:
Any on-site wastewater treatment system, as that term is defined at § 257-46 of the Town Code;
Drainage wells, swales, or ditches used to drain surface fluids,
primarily storm runoff, into the ground;
Geothermal wells associated with the recovery of geothermal
energy for heating or production of electric power;
Any agriculture use; or
Bore holes drilled to produce potable water to be used as such.
A site where any hazardous wastes or natural gas and/or petroleum
extraction, exploration or production wastes are applied to the soil
surface or injected into the subsurface.
Methane or any other 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.
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.
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.
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:
Radioactive material spoils;
Crude oil or natural gas drilling fluids;
Crude oil or natural gas exploration, drilling, production or
processing wastes;
Crude oil or natural gas drilling treatment wastes (such as
oils, frac fluids, produced water, brine, flowback, sediment and/or
any other liquid or semiliquid material);
Any chemical, waste oil, waste emulsified oil, mud, or sediment
that was used or produced in the drilling, development, transportation,
processing or refining of crude oil or natural gas;
Soil contaminated in the drilling, transportation, processing
or refining of crude oil or natural gas;
Drill cuttings from crude oil or natural gas wells; or
Any other wastes associated with the exploration, drilling,
production or treatment of crude oil or natural gas.
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 animal manure and/or recognizable
and nonrecognizable food wastes, waste generated by agriculture use,
or waste generated by a public utility 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.
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.
Those facilities or combination of facilities that move natural
gas or oil from production fields or natural gas processing facilities
in pipelines or into storage; the term shall include equipment for
liquids separation, natural gas dehydration, and tanks for the storage
of waste liquids and hydrocarbon liquids.
Those facilities that separate and recover 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.
Those pipelines that are exempt or otherwise excluded from
regulation under federal and state laws regarding pipeline construction
standards or reporting requirements. Specifically includes production
lines and gathering lines. Notwithstanding the foregoing, nonregulated
pipelines are not intended, and shall not be construed, to 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 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 any legal residential, business, commercial, or other uses within
the Town, including any agriculture use, so long as such uses do not
involve any natural gas and/or petroleum exploration activities, or
natural gas and/or petroleum extraction activities.
All parts of those physical facilities through which petroleum,
natural gas, other gaseous substances, hazardous liquids, or chemicals
move in transportation (including pipes, valves and other equipment
and appurtenances attached to pipes and other equipment such as drip
stations, vent stations, pigging facilities, valve boxes, transfer
pump stations, measuring and regulating equipment, yard and station
piping, and cathodic protection equipment) whether or not laid in
public or private easement or private right-of-way within the Town.
This term includes, without limitation, gathering lines, production
lines, and transmission lines.
An enterprise that provides electric, gas, steam, telephone
service, water or sewerage directly to the general public. For purposes
hereof, a public utility is an entity which operates as a monopoly,
and whose rates charged to customers are established by a utility
commission.
Buildings, structures, and facilities, including generating
and switching stations, poles, lines, pipes, regulated pipelines,
pumping stations, repeaters, antennas, transmitters and receivers,
valves, owned and operated by a public utility and relating to the
furnishing of utility services to the public by that public utility.
Material in any form that emits radiation, but only if such
material has been moved from its naturally occurring location through
an industrial process.
Radioactive material consisting of drill spoils or soil produced
through the excavation or drilling of land and related 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.
The spontaneous emission of particles (alpha, beta, neutrons)
or photons (gamma) from the nucleus of unstable atoms as a result
of radioactive decay.
Below the surface of the earth, or of a body of water, as
the context may require.
A pipeline that transports oil, gas, or water to end users
as a public utility and which is subject to regulation either by the
Federal Energy Regulatory Commission's jurisdiction under Section
1(b) of the Natural Gas Act, or as a major utility transmission facility
under the Public Service Law of New York, Article 7, § 120(2)(b).
Subsurface emplacement of hazardous wastes or natural gas
and/or petroleum extraction, exploration or production wastes by or
into an injection well.
Subsurface storage, including in depleted gas or oil reservoirs
and salt caverns, of natural gas that has been transferred from its
original location for the primary purpose of load balancing the production
of natural gas. Includes compression and dehydration facilities, and
pipelines.
A plant or facility that creates energy in the form of electricity
or heat from the incineration of solid waste or recycled material.
All streams, ditches, lakes, ponds, reservoirs, marshes,
vernal pools, watercourses, waterways, wells, springs, drainage systems,
and all other bodies or accumulations of water, surface or underground,
intermittent or perennial, which are contained in, flow through or
border upon the Town or any portion thereof.
[Added 2-22-2017 by L.L.
No. 1-2017]
A.
Purpose. The purpose of this section is to provide standards to facilitate
the development and operation of solar energy systems in the Town
of Bethel, subject to the following process and other reasonable conditions
that will protect the public health, safety and welfare.
B.
Applicability. The requirements of this section shall apply to all
solar energy systems proposed, operated, modified, or constructed
after the effective date of this section, but excluding general maintenance
and repair of solar energy systems constructed prior to the effective
date of this section and building-integrated photovoltaic systems.
C.
QUALIFIED SOLAR INSTALLER
SOLAR ACCESS AREA
SOLAR ARRAY
SOLAR COLLECTOR
SOLAR EASEMENT
SOLAR ENERGY SYSTEM
(1)
(2)
(3)
(4)
SOLAR PANEL
SOLAR THERMAL SYSTEMS
Special definitions. The following definitions are applicable to § 345-39:
A person listed as an eligible photovoltaic installer by
the New York State Energy Research and Development Authority (NYSERDA)
or who is listed as a certified solar installer by the North American
Board of Certified Energy Practitioners (NABCEP) shall be deemed to
be a qualified solar installer for the purposes of this section.
A space open to the sun, mostly clear of overhangs or shade,
that allows the use of solar energy systems on real property.
A group of multiple solar panels or modules linked into a
single unit or system.
A photovoltaic cell, panel, solar array, or other device
that converts solar radiation into electricity or transfers solar
energy to air, water, or another storage medium.
A written easement recorded pursuant to the New York Real
Property Law § 335-b, the purpose of which is to procure
the right to receive direct sunlight across real property to operate
a solar energy system.
A combination of components that utilize solar radiation
(direct, diffuse, or reflected) to produce energy designed to provide
heating, cooling, hot water and/or electricity, including, without
limitation, solar panels and facilities, solar arrays, solar collectors,
and solar thermal systems and facilities. Solar energy systems shall
be classified as follows:
Roof-mounted solar energy system: a solar photovoltaic or solar
thermal system that is mounted on the roof of the building to which
it provides heating, cooling, hot water and/or electricity. This definition
shall not prohibit the sale of excess electricity pursuant to state-authorized
net metering regulations.
Small-scale ground-mounted solar energy system: a solar energy
system consisting of solar panels that are properly secured by anchors
or ballasts to the ground and attached to poles or other mounting
systems, detached from any other structure, for the primary purpose
of producing heating, cooling, hot water and/or electricity for on-site
consumption or use at the existing residence, farm, business or commercial
establishment; notwithstanding the foregoing, this definition shall
not prohibit the sale of excess electricity pursuant to state-authorized
net metering regulations.
Large-scale ground-mounted solar energy system: a solar energy
system consisting of solar panels that are properly secured by anchors
or ballasts to the ground and attached to poles or other mounting
systems, detached from any other structure, for the primary purpose
of producing electricity for off-site sale or consumption.
Building-integrated photovoltaic system: a combination of photovoltaic
building components integrated into any building envelope system such
as vertical facades including glass and other facade material, semitransparent
skylight systems, roofing materials and shading over windows.
A photovoltaic device capable of collecting and converting
solar energy into electrical energy.
Systems that collect and convert solar radiation into forms
of energy for water heating, space heating, or space cooling.
D.
General provisions.
(1)
Qualified installations. No solar energy system may be constructed,
installed, replaced or modified except by a qualified solar installer;
provided, however, that homeowners may install their own solar energy
systems. Any system installed by a qualified installer and/or homeowner
must be inspected and approved by a qualified third-party electrical
inspector approved by the Town of Bethel and, if connected to the
local electric utility system grid, approved by the appropriate utility.
(2)
Government approval. The owner or operator of a solar energy system
shall establish to the satisfaction of the Town Code Enforcement Officer
(for a roof-mounted solar energy system or a small-scale ground-mounted
solar energy system) or the Town of Bethel Planning Board (for a large-scale
ground-mounted solar energy system) that all applicable governmental
agencies with jurisdiction over the installation and operation of
such solar energy system have provided all permissions, approvals
and required inspections necessary to install and operate such system.
(3)
Limitations.
(a)
Nothing in this § 345-39 shall be deemed to allow any solar energy system owner or operator the right to remove any trees, vegetation or other obstruction located on any real property over which said owner or operator does not have fee title or a solar easement.
(b)
Nothing in this § 345-39 shall be deemed a guarantee against any future construction or improvements or Town approvals for future construction or improvements that may impede the sunlight flow to any solar energy system.
(c)
It shall be the sole responsibility of the solar energy system
owner or operator to acquire any necessary solar easements or other
appropriate land use rights in order to provide for and maintain appropriate
solar access areas.
(4)
Location. The location of small-scale or large-scale ground-mounted
solar energy systems shall be one demonstrably suitable and sized
for such use, including, but not limited to, i) the proper drainage
and provisions for stormwater control such that the amount of water
leaving the site after development shall not be greater than prior
to development, and ii) the ability to adequately buffer such use
from any adjacent residential uses.
(5)
Abandonment, cessation of operations and decommissioning.
(a)
Abandonment or cessation; order to remove and restore. Small-
and large-scale ground-mounted solar energy systems shall be considered
abandoned or to have ceased operations if there has been no electrical
energy generation for three months or longer; provided, however, that
applications for extensions of time may be approved by the Town Code
Enforcement Officer for a period of up to an additional three months.
If the owner or operator determines to abandon or cease operations,
said owner or operator shall so notify the Town Code Enforcement Officer
in writing. Failure to provide the notice required herein shall be
a violation of this section. Whether or not the notice required by
this subsection is received by the Town Code Enforcement Officer,
if the Town Code Enforcement Officer has reason to believe that such
system has been abandoned or ceased operation, he/she may issue an
order that the owner or operator of the system shall remove said system,
including all equipment, mounts, solar arrays and solar collectors,
and restore the property, by no later than 90 days after the date
of issuance of said order to undertake such removal. Service of the
order shall be at the address provided by the applicant to the Town
Code Enforcement Officer.
(b)
Investigation and report. When, in the opinion of the Town Code Enforcement Officer, any small- or large-scale ground-mounted solar energy system shall have been abandoned or ceased operations in accordance with § 345-39D(5)(a), and the owner/operator thereof fails to comply with an order to remove and restore as set forth in § 345-39D(5)(a), the Code Enforcement Officer shall make a formal inspection thereof and report in writing to the Town Board his/her findings and recommendations in regard to its removal.
(c)
Order for hearing on removal and restoration; assessment of costs; time limits. The Town Board shall thereupon consider said report, and, if it finds that such small- or large-scale ground-mounted solar energy system has been abandoned or ceased to operate as set forth in § 345-39D(5)(a), it shall by resolution order removal and restoration and shall further order that a hearing be held before the Town Board at a time and place therein specified and on at least five days' notice to the property owner and/or owner/operator of the small- or large-scale solar energy system or persons having an interest therein. Such hearing shall be to determine whether said order to remove and restore shall be affirmed, modified or vacated and, in the event of affirmance or modification, to assess all costs and expenses incurred by the Town in the inspection and report against the land on which such small- or large-scale ground-mounted solar energy system is located and/or, for a large-scale ground-mounted solar energy system, said expenses may be assessed against any surety held by the Town. Said order shall also provide that the removal of the small- or large-scale ground-mounted solar energy system and restoration of the property shall commence within 30 days after service of notice and shall be completed within 60 days thereafter.
(d)
Contents of notice. The notice shall contain the following statements:
[1]
The name of the owner or person in possession of the underlying
parcel of property as it appears in tax and deed records;
[2]
The name of any owner/operator of a large-scale ground-mounted solar energy system as set forth in a filed decommissioning plan, as required by § 345-39G(5);
[3]
A brief description of the small- or large-scale ground-mounted
solar energy system, as well as the underlying parcel of property
upon which it is situated;
[4]
A description of the basis of the finding that the small- or
large-scale ground-mounted solar energy system has been abandoned
or ceased operation;
[5]
An order requiring that the small- or large-scale ground-mounted
solar energy system be removed and property restored;
[6]
That the removal of such small- or large-scale ground-mounted
solar energy system and property restoration shall commence within
30 days of the service of notice and shall be completed within 60
days thereafter;
[7]
The time and date of a hearing to be held before the Town Board,
at which hearing the property owner and/or owner/operator of the small-
or large-scale ground-mounted solar energy system shall have the right
to contest the order and findings of the Town Board; and
[8]
That in the event that such property owner and/or owner/operator
of said small- or large-scale ground-mounted solar energy system,
or other person having an interest in said premises, shall fail to
contest such order and fail to comply with the same, the Town Board
will order the removal of such system and property restoration by
the Town. For small-scale ground-mounted solar energy systems, the
Town Board will further order that all costs and expenses incurred
in such removal and restoration be assessed against the land on which
the system is located in the same manner as general Town taxes. For
large-scale ground-mounted solar energy systems, the Town Board will
order that all costs and expenses incurred in such removal and restoration
be assessed against any surety held by the Town and, in the event
that the costs and expenses of removal and restoration are not satisfied
by the surety held, that such unsatisfied costs and expenses be assessed
against the land on which such system is located in the same manner
as general Town taxes.
(e)
Service and filing of notice.
[1]
A copy of said notice shall be personally served upon the property
owner and/or owner/operator of the small- or large-scale ground-mounted
solar energy system or some one of their executors, legal representatives,
agents, lessees or other person(s) having a vested or contingent interest
in the premises as shown by the Collector of Taxes and/or the office
of the Sullivan County Clerk or Sullivan County Treasurer and/or as
set forth in any filed decommissioning plan.
[2]
If no such person can reasonably be found for personal service,
then a copy of said notice shall be mailed to such person by certified
mail addressed to his/her last known address, as shown on said records,
and by personally serving a copy of said notice upon any adult person
residing in or occupying said premises or by securely affixing a copy
of said notice upon said small- or large-scale ground-mounted solar
energy system.
[3]
A copy of said notice shall be filed in the Sullivan County
Clerk's office in the same manner as a notice of pendency pursuant
to Article 65 of the Civil Practice Law and Rules and shall have the
same effect as a notice of pendency as therein provided. A notice
so filed shall be effective for a period of one year from the date
of filing. It may be vacated, however, upon an order of a judge or
justice of a court of record or upon the consent of the Town Attorney.
When vacated, the Sullivan County Clerk shall mark such notice, and
any record or docket thereof, as canceled of record upon the presentation
and filing of such consent or a certified copy of such order.
(f)
Hearing. The Town Board shall conduct the public hearing at
the time and place specified in the notice to remove and restore.
It may adjourn the hearing, from time to time, until all interested
parties are heard and until the hearing is completed. At the conclusion
of the hearing, the Town Board shall determine by resolution to revoke
the order to remove and restore, modify said order or continue and
affirm said order and direct the owner or other persons to complete
the work within the time specified in the order or such other time
as shall be determined by the Town Board.
(g)
Failure to comply. In the event of the refusal, failure or neglect
of the owner or person so notified to comply with said order of the
Town Board within the time specified in said order, and after the
public hearing, the Town Board shall provide that such small- or large-scale
ground-mounted solar energy system be removed and the property restored
by Town employees or by independent contractors. Except for emergency
cases as herein provided, any contract for removal and restoration
shall be subject to Town of Bethel procurement guidelines.
(h)
Assessment of expenses. All expenses incurred by the Town in
connection with the proceedings to remove a small-scale ground-mounted
solar energy system and restore the property, including the costs
of actual removal, shall be assessed against the land on which such
system is located and shall be levied and collected in the same manner
as provided in Article 15 of the Town Law for the levy and ad valorem
levy. All expenses incurred by the Town in connection with the proceedings
to remove a large-scale ground-mounted solar energy system and restore
the property, including the costs of actual removal, shall be assessed
against any surety held by the Town and, should said expenses not
be satisfied by the surety, any unsatisfied expenses shall be assessed
against the land on which such system is located and shall be levied
and collected in the same manner as provided in Article 15 of the
Town Law for the levy and ad valorem levy.
(i)
Emergency cases. Where it reasonably appears that there is a clear and imminent danger to the life, safety or health of any person or property unless a small- or large-scale ground-mounted solar energy system is removed and the property restored, the Town Board may, by resolution, authorize the Town Code Enforcement Officer to immediately cause the removal of such system and restoration of the property. The expenses of such removal and restoration shall be a charge against the land on which it is located and/or a surety and shall be assessed, levied and collected as provided in § 345-39D(5)(h) and G(5)(f).
(j)
Additional requirements. Additional abandonment and decommissioning requirements shall apply to large-scale ground-mounted solar energy systems as set forth at § 345-39G(5).
(6)
New York Real Property Tax Law provisions. The Town elects not to opt out of the tax exemption provisions of § 487 of the New York Real Property Tax Law, but reserves its right to do so in the future. Owners, operators and landowners who intend to construct or operate a solar energy system will be subject to Article IX of Chapter 310, Taxation, of the Town Code.
(7)
Expert and professional fees. Any reasonable expert or professional fees incurred by the Town Board, Town Planning Board, Town Code Enforcement Officer or Town Zoning Board of Appeals that are related to i) the review of any application for a building permit, special use permit or site plan review for a solar energy system; or ii) the monitoring or inspection of any solar energy system shall be paid by the applicant as provided by Town Code § 345-60.
E.
Roof-mounted solar energy systems.
(2)
Roof-mounted solar energy systems shall include such systems mounted
on the top of a structure either as flush-mounted systems or as solar
panels fixed to frames located on a roof and mounted at an optimal
angle towards the sun.
(3)
Roof-mounted solar energy systems may be mounted on a principal and/or
accessory structure and shall not be more than two feet higher than
the highest point of the roof of the structure to which such system
is mounted.
(4)
A building permit applicant for a roof-mounted solar energy system
shall comply with the permit application requirements of the Town's
unified solar permit or standard permit, as applicable.
F.
Small-scale ground-mounted solar energy systems.
(1)
Small-scale ground-mounted solar energy systems are permitted in all zoning districts as an accessory use, provided such systems comply with the requirements of § 345-39D and this § 345-39F. Notwithstanding this classification, such accessory uses may be placed on a lot separate from the principal use they serve, provided such lots are owned by the same party, and further provided that the principal use is located on a contiguous parcel located in the Town of Bethel or an adjoining municipality.
(2)
All small-scale ground-mounted solar energy systems shall not exceed
a height of 10 feet when located 12 feet or less from a lot line and
a maximum height of 12 feet when located more than 12 feet from a
lot line. All height measurements shall be calculated when the ground-mounted
solar energy system is oriented at maximum tilt.
(3)
Small-scale ground-mounted solar energy systems shall be limited
to the minimum lot size, maximum lot coverage, setback requirements
and other restrictions as apply to residential structures of the zoning
district in which the system is sited. In the Airport District, small-scale
ground-mounted solar energy systems shall be limited to the minimum
lot size, maximum lot coverage, setback requirements and other restrictions
as apply to light industry. In the H-17B District, small-scale ground-mounted
energy systems shall be limited to the maximum lot coverage, setback
requirements and other restrictions as apply to hotels/motels with
public sewer. The total surface area covered by the solar panels,
regardless of the mounted angle, shall be included in determining
lot coverage.
(4)
All small-scale ground-mounted solar energy systems are subject to
site plan review and approval by the Town Code Enforcement Officer,
who may, in his/her discretion, refer the site plan review to the
Town Planning Board for its review and approval. Notwithstanding the
foregoing, small-scale ground-mounted solar energy systems to be located
on farmland, as defined in the State Agriculture and Markets Law,
shall be subject solely to site plan review and approval by the Town
Code Enforcement Officer and shall not be subject to review and approval
by the Town Planning Board. An applicant for a small-scale ground-mounted
solar energy system shall comply with the permit application requirements
of the Town. A small-scale ground-mounted solar energy system, and
related structures and equipment, must be adequately screened, if
necessary, from adjacent properties.
G.
Large-scale ground-mounted solar energy systems.
(2)
Special use and site plan requirements. Large-scale ground-mounted solar energy systems require a special use permit issued in accordance with Town Code § 345-30 and a site plan prepared and approved in accordance with Town Code § 345-31. Site plans must include those applicable items set forth in the Town Code §§ 345-30 and 345-31, as well as the following:
(a)
A description of the solar energy system and the technical,
economic and other reasons for the proposed location and design;
(b)
A one- or three-line electrical diagram detailing the solar
energy system layout, solar collector installation, associated components,
and electrical interconnection methods with all National Electrical
Code compliant disconnects and overcurrent devices;
(c)
All proposed changes to the landscape of the site, including,
without limitation, grading, vegetation clearing and planting, exterior
lighting, screening vegetation or structures;
(d)
A confirmation that the solar energy system complies with all
applicable local, state and federal laws and regulations;
(e)
Equipment specification sheets of the major system components
to be used, including, without limitation, photovoltaic panels, mounting
systems, batteries, and inverters;
(f)
An operation and maintenance plan that shall include measures
for maintaining safe access to the installation, general procedures
for operation and maintenance of the solar energy system, and procedures
for property upkeep;
(g)
Location of the nearest residential structures on the site and
on any adjacent site, and the distance from the nearest proposed solar
energy system equipment to any such residential structures;
(h)
If the property of the proposed large-scale ground-mounted solar
energy system project is to be leased, legal consent among all parties
specifying the use(s) of the land for the duration of the project,
including easements and other agreements, to include, but not limited
to, any leases, shall be submitted to the Town Planning Board.
(i)
Erosion and sediment control and stormwater 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;
(j)
A construction schedule describing commencement and completion
dates, including a traffic analysis with a description of the routes
to be used by construction and delivery vehicles;
(k)
A list of real property owners located within 500 feet of the
property line of the proposed site and the mailing address of each
real property owner;
(l)
A Full Environmental Assessment Form, as provided by the New
York State Environmental Quality Review Act (SEQRA); and
(3)
Minimum design standards. Large-scale ground-mounted solar energy
systems shall conform to the following minimum standards:
(a)
The system shall comply with minimum lot size, maximum lot coverage,
setback requirements and other restrictions as apply to residential
structures within the zoning district where the solar energy system
is sited. In the Airport District, the system shall comply with minimum
lot size, maximum lot coverage, setback requirements and other restrictions
as apply to light industry. In the H-17B District, the system shall
comply with minimum lot size, maximum lot coverage, setback requirements
and other restrictions as apply to hotels/motels with public sewer.
The total surface area covered by the solar panels, regardless of
the mounted angle, shall be included in determining lot coverage;
(b)
All large-scale ground-mounted solar energy systems shall not
exceed a height of 10 feet when located 12 feet or less from a lot
line and a maximum height of 12 feet when located more than 12 feet
from a lot line. All height measurements shall be calculated when
the ground-mounted solar energy system is oriented at maximum tilt;
(c)
All large-scale ground-mounted solar energy systems shall be
enclosed by fencing to prevent unauthorized access. The type, height
and color of fencing shall be approved by the Town Planning Board.
The fencing and the solar energy system may be further screened by
year-round landscaping to avoid adverse aesthetic impacts as required
by the Town Planning Board;
(d)
Town Code § 345-21A though I, inclusive, shall be applicable to large-scale ground-mounted solar energy systems;
(e)
There shall be no signs posted on the real property of the large-scale ground-mounted solar energy system except announcement signs, such as "no trespassing," or warning signs, such as "high voltage" or "danger." Notwithstanding the foregoing, a sign shall be posted at the entrance of the parcel in question that identifies the owner and operator of the solar energy system and provides an emergency telephone number where the owner and/or operator can be reached on a twenty-four-hour basis. In addition, a clearly visible warning sign denoting high voltage must be placed at the base of all pad-mounted transformers and substations. All signs are subject to the requirements of Town Code § 345-23; and
(f)
If the property of the proposed large-scale ground-mounted solar
energy system project is to be leased, legal consent among all parties
specifying the use(s) of the land for the duration of the project,
including easements and other agreements, shall be submitted to the
Town Planning Board.
(4)
Additional conditions.
(a)
The large-scale ground-mounted solar energy system owner or
operator shall provide a copy of the project summary, electrical schematic
and site plan to the local Fire Department. The owner or operator
shall cooperate with local emergency services in developing an emergency
response plan and provide proof of approval thereof. All means of
shutting down the solar system shall be clearly marked, and instructions
shall be provided to the local Fire Department. The owner or operator
shall identify a person responsible for responding to safety inquiries
throughout the life of the system.
(b)
The owner or operator of a large-scale ground-mounted solar
energy system shall maintain it in good condition and in accordance
with industry standards. Maintenance shall include, but not be limited
to, painting, structural repairs, mowing, trimming and landscape maintenance,
and such examinations and repairs as necessary to ensure the integrity
of all equipment and structures. The said owner or operator shall
maintain and keep in good repair all approved security measures that
govern the site, including, but not limited to, fence painting and
repair, lighting and any alarm systems. Site access shall be maintained
at a level acceptable to the local Fire Department and, if the large-scale
solar energy system is located in an ambulance district, the local
ambulance corps.
(c)
Use of herbicides at the parcel in question to control plant
growth in and around the large-scale ground-mounted solar energy system,
and its components and equipment, shall be prohibited without the
express prior written authorization of the Town Planning Board.
(5)
Abandonment and decommissioning. All applications for a large-scale ground-mounted solar system shall be accompanied by a decommissioning plan to be implemented upon abandonment or cessation and/or in conjunction with removal of the large-scale ground-mounted solar energy system. Compliance with this plan shall be made a condition of the issuance of a special use permit under this § 345-39G. The decommissioning plan must specify that after the large-scale ground-mounted solar energy system has been abandoned, ceased operations or can no longer be used, it shall be removed by the applicant or any subsequent owner. Prior to removal of such solar energy system, a permit for removal activities shall be obtained from the Town Code Enforcement Officer. The decommissioning plan shall include details on how the applicant plans to address the following requirements:
(a)
The manner in which the owner, operator, or its successors in interest will remove the large-scale ground-mounted solar energy system in accordance with the requirements of § 345-39D(5);
(b)
The time to complete any decommissioning, removal and restoration
of the large-scale ground-mounted solar energy system and the property
on which it is sited;
(c)
A demonstration as to how the removal of all infrastructure
and the remediation of soil and vegetation shall be conducted to return
the parcel to its original state as it existed prior to construction
of the system;
(d)
A description of the means and location of disposal of all solid
and hazardous waste in accordance with local, state and federal waste
disposal regulations;
(e)
A description of site stabilization and/or revegetation measures
necessary to minimize erosion; and
(f)
Absent notice of a proposed date of decommissioning and written notice of extenuating circumstances, the decommissioning plan shall provide that the large-scale ground-mounted solar energy system shall be considered abandoned if construction is not completed, the system does not become operational and/or, once operational, it ceases operations for more than three consecutive months. The decommissioning plan shall also provide that if the owner or operator of the large-scale ground-mounted solar energy system fails to remove it in accordance with the requirements of this section within 90 days of abandonment or the proposed date of decommissioning, the Town may enter the property and physically remove the installation at the expense of the property owner or against any financial surety assigned to the Town as provided for in § 345-39D(5).
(6)
Cessation of operation. Nonfunction or lack of operation of the large-scale
ground-mounted solar energy system may be established: i) through
reports submitted by or on behalf of its owner or operator to the
Public Service Commission, NYSERDA, the local utility or the New York
Independent System Operator; or ii) by lack of income generation for
a commercial enterprise. The owner or operator of a large-scale ground-mounted
solar energy system shall promptly furnish, on request, such records
as required by the Town Code Enforcement Officer to establish that
the large-scale ground-mounted solar energy system is functioning
or in operation.
(7)
Estimate and financial surety.
(a)
The applicant for a special use permit to site and operate a large-scale ground-mounted solar energy system shall provide an estimate, prepared by a professional engineer licensed in the State of New York, setting forth the projected costs associated with decommissioning the system in question, consistent with an approved decommissioning plan as set forth in § 345-39G(5). Cost estimations shall account for inflation. Said estimate shall be subject to approval by the Planning Board.
(b)
Security for decommissioning any large-scale ground-mounted
solar energy system shall be furnished to the Town in an amount and
form to be determined by the Town Board. Such security shall be posted
with the Town prior to the issuance of any building permit for construction
of any portion of said large-scale ground-mounted solar energy system.
The security shall be available to and held by the Town during the
projected life of the large-scale ground-mounted solar energy system
in question and until proof of successful decommissioning and payment
of all expenses thereof has been submitted to the Town.
(c)
If the large-scale ground-mounted solar energy system is not decommissioned after it is no longer in use, abandoned during its useful lifetime or never completely constructed, the Town of Bethel may use the security to decommission the large-scale ground-mounted solar energy system and to restore the property. The Town may use the security notwithstanding that the notice required pursuant to § 345-39D(5) has not been given by the system's owner or operator. Prior to using the security, the Town Code Enforcement Officer must serve the order required by § 345-39D(5) and wait for the termination of the ninety-day period required by that subsection.
(8)
Issuance of special use permit.
(a)
The special use permit application and approval process shall be governed by § 345-30 of the Town Code.
(b)
If the special use permit application is approved, the Town
Code Enforcement Officer may issue a building permit upon satisfaction
of all requirements necessary for the issuance of said permit, including
compliance with applicable portions of the New York State Building
Code.
(c)
The Town Planning Board may, in its discretion, waive certain requirements of § 345-39G otherwise applicable to a large-scale ground-mounted solar energy system that it believes is compatible with land uses in the area where it is proposed to be built and where, because of its size, ownership model or other considerations, the Town Planning Board finds that the large-scale ground-mounted solar energy system does not need to be subjected to all of the special use permit and site plan regulations imposed by § 345-39G.