No fish fry, hot dog, roadside or barbecue stands shall be constructed,
reconstructed, erected, built or used in any use district except upon
the submission of plans and specifications thereof to the Zoning Board
of Appeals and upon written approval thereof by said Zoning Board
of Appeals, subject to such conditions, restrictions and safeguards
as may be deemed appropriate by said Zoning Board of Appeals.
Where a building line has already been established in any use
district, new construction shall follow the building line, which shall
be the average of lines of buildings within 200 feet of either side.
Dumps of rubbish and other waste shall be permitted only on
lands designated as dumps on the Zoning Map. Dumping on other lands
in the Town may be permitted upon special approval of the Zoning Board
of Appeals and upon such conditions as said Zoning Board of Appeals
may impose in the interest of public safety, health and welfare.
[Added 5-5-1997 by L.L. No. 3-1997; amended 7-7-1997 by L.L. No.
4-1997; 4-8-2002 by L.L. No. 1-2002]
A.
Upon receipt of site plan approval as set forth herein, house trailers
may be allowed for the following purposes and under the following
circumstances:
(1)
As temporary housing for a farmhand and his immediate family, provided
that the farmhand is employed full time on the farm, the house trailer
is located on said farm property and the farm is actively engaged
in agricultural pursuits yielding a gross annual income of not less
than $100,000.
(2)
As temporary housing for the owner and his immediate family while
he rebuilds on a lot which contains a single-family home which has
been destroyed or rendered uninhabitable by fire, flood or other natural
disaster.
(3)
As temporary housing for the owner and his immediate family while
constructing a new residence on the lot. Said house trailer shall
be allowed for not more than one-year during actual construction.
A second year may be allowed by the Zoning Board of Appeals upon good
cause shown.
[Added 5-3-2010 by L.L. No. 1-2010]
A.
Authority. The Town Board of the Town of Pompey enacts this section
under the authority granted by:
(1)
Article IX of the New York State Constitution;
(2)
New York Statute of Local Governments;
(3)
New York Municipal Home Rule Law; and
(4)
New York Town Law, including, but not limited to, those sections
pertaining to the Building Code, Electrical Code, fire prevention,
use of streets and highways, locations of driveways, peace, good order
and safety, promotion of public welfare, excavated lands, unsafe buildings,
trespass, building placement, protection of aesthetic interests, and
general powers.
B.
Purpose. The Town Board of the Town of Pompey adopts this section
for the following purposes:
(1)
By adopting this section, it is the Town Board's intention to promote
the effective and efficient use of small wind energy conversion systems
(small WECS) and to regulate the placement of small WECS so that the
public health, safety, natural resources and aesthetics of the Town
will not be jeopardized.
(2)
This section covers only small WECS, whether they are building-mounted,
building-supported, or freestanding, or on-grid or off-grid facilities
that are fundamentally constructed for the purpose of single-family
residential or agricultural usage. Horizontal or vertical axis wind
turbines may be used. This section does not address commercial WECS.
(See Schedule Limiting the Use of Buildings and Land, Town of Pompey
Zoning Law.[2])
[2]
Editor's Note: Said schedule is included at the end of this
chapter.
(3)
Small WECS that have been operating, permitted or approved by the Town of Pompey Zoning Board of Appeals prior to the adoption of this section are only subject to the provisions relating to nuisance prevention and operation. See Subsections H and I contained herein. Such small WECS systems are exempt from all other provisions of this section unless the system is modified after the adoption of this section and said modification relates to any of the standards set forth herein.
C.
Findings. The Town Board of the Town of Pompey finds and declares
that:
(1)
Wind energy is an abundant, renewable and nonpolluting energy resource
of the Town, and its conversion to electricity will reduce our dependence
on nonrenewable energy sources, which, in turn, will decrease air
and water pollution resulting from the use of conventional energy
sources.
(2)
The generation of electricity from properly sited wind turbines can
be cost effective, and, in many cases, existing power distribution
systems can be used to transmit electricity from wind-generating stations
to utilities.
(3)
Regulations on the siting and installation of wind turbines are necessary
to protect the health and safety of neighboring property owners and
the general public and to preserve the natural resources and aesthetics
of the community.
(4)
If not properly sited, small WECS can present potentially significant
and aesthetic impacts. The aesthetics of the community is a key issue
and must play a significant role in the siting of proposed facilities.
Town landowners are encouraged to engage adjacent property owners
in the siting of proposed facilities.
(5)
If not properly sited, small WECS may present a risk to bird and
bat populations.
(6)
If not properly sited, small WECS may present risks to the property
values of adjoining property owners.
(7)
Small WECS may constitute a source of noise which may be disruptive
to the public.
D.
BUILDING
BUILDING-MOUNTED OR BUILDING-SUPPORTED WECS
HORIZONTALLY-MOUNTED SMALL WECS
INVENTORIED RESOURCE
OFF-GRID
ON-GRID
ROTOR
SITE
SMALL WECS
SYSTEM HEIGHT
VERTICALLY-MOUNTED SMALL WECS
WIND ENERGY CONVERSION SYSTEM (WECS)
WIND GENERATOR
WIND TOWER
Definitions. As used in this section, the following terms shall have
the meanings indicated:
A structure having a roof supported by columns or walls and
intended for the shelter or enclosure of persons, animals or chattels.
Any WECS unit mounted on a house or accessory building.
Also known as "horizontal axis wind turbines" (HAWTs); a
wind turbine that has the main rotor shaft arranged horizontally.
Parcels of land or aesthetic resources that are of local
or statewide significance, such as state parks, lakes, forests, historic
places listed on the national or state historic places list, and areas
designated as "scenic."
Small WECS that are not connected to the public electricity
grid.
Small WECS that are connected to the public electricity grid.
Diameter of the circle swept by the tips of the rotating
blades of a small WECS.
The parcel of land on which the small WECS is to be placed.
A wind energy conversion system consisting of a wind generator,
wind tower, and associated control or conversion electronics that
is accessory to the principle use.
The height of the wind tower structure as measured from the
original grade to the rotor at the furthest vertical extension of
the small WECS.
Also known as "vertical axis wind turbines" (VAWTs); a wind
turbine that has the main rotor shaft arranged vertically.
A machine that converts kinetic energy in the wind to a usable
form, commonly referred to as a "wind turbine" or "windmill." The
WECS includes all parts of the system, including, but not limited
to, the base, foundation, wind generator, nacelle, rotor, wind tower,
inverter, batteries, and all other components used in the system.
The WECS may be mounted on a horizontal axis, vertical axis, rotor
or propeller.
Blades and associated mechanical and electrical conversion
components mounted on top of the wind tower.
Freestanding structure that supports the wind generator.
E.
Standards. No small WECS shall be constructed which does not meet
the following standards, unless clearly stated otherwise:
(1)
Permits. No person, firm or corporation, or other entity being the
owner or occupant of any land or premises within the Town shall use
or permit the use of land or premises for the construction of a tower
for an on-site small WECS without first obtaining a building permit.
Small WECS must meet all current building and Town codes.
(2)
Schedule Limiting Height, Location and Clearances for WECS. To facilitate
public understanding of this section and for the better administration
thereof, the regulations limiting the height, location and clearances
for small WECS have been set forth in the annexed schedule.[3] Such schedule is hereby adopted and declared to be a part
of this section, hereinafter referred to as the "schedule," and may
be amended in the same manner as any other part of this chapter. All
limitations as to height, location, and clearances set forth in such
schedule shall be those enumerated herein.
[3]
Editor's Note: The Schedule Limiting Height, Location and
Clearances for WECS is included at the end of this chapter.
(3)
Safety.
(a)
Ground clearance. The minimum distance between the ground and
any exposed, moving part of the rotor blade apparatus shall be 15
feet, measured at the lowest point of the rotor blade arc.
(b)
Wind tower design. The wind tower shall be designed to handle
the maximum potential structural load. In addition, under no circumstances
shall the height of the system exceed the height recommendations specified
by the manufacturer of the system.
(c)
Wind tower access. The small WECS shall not be accessible to
unauthorized personnel. Access to the wind tower shall be limited
by means of a fence, no lower than six feet in height, around the
tower base, with a locking portal and with a locking gate on the fence,
or by limiting the wind tower climbing apparatus to no lower than
15 feet from the base of the tower. The fencing requirements do not
apply to building-mounted or building-supported WECS.
(d)
Warning signage. A weather-resistant sign plate, no greater
than two square feet in size, containing the name of the current owner
or operator, emergency phone number, and current address of such owner/operator
shall be located on the exterior surface of the tower at a height
of five feet or on the fence surrounding each tower and viewable by
a Code Enforcement Officer. Such sign shall also warn of electrical
shock or high voltage.
(e)
Braking mechanisms. The small WECS shall be equipped with an
automatic braking, governing or feathering system to prevent uncontrolled
rotation, over-rotation and excessive pressure on the wind tower structure,
rotor blades, wind generator components or enclosed shelter (in the
case of building-mounted and/or building-supported small WECS). No
small WECS shall be permitted which lacks such a system. The applicant
shall file with the Town Code Enforcement Officer a document explaining
how the small wind energy system may be shut down in case of an emergency.
(f)
Emergency shutdown. In the event of a failure of the braking
system, the small WECS shall have a positive means to disconnect it
from the local power grid.
(g)
The existing structure or occupied space where the small WECS
is sited shall be able to withstand the additional load, force, torque,
and vibration imposed by the small WECS. All related components must
be designed in accordance with generally acceptable industry standards.
The entire facility, including the building onto which the small WECS
will be attached, must be in compliance with all applicable governmental
building codes, laws and regulations and in accordance with generally
accepted engineering practices and industry standards, including,
but not limited to, acceptable standards for stability, wind and ice
loads.
(4)
Intrusiveness mitigation.
(a)
No advertising or promoting. No word or graphic representation,
other than appropriate warning signs, may be placed on a wind generator,
wind tower, building or other structure associated with the small
WECS. No brand names, logo, advertising, mark or promotion shall be
placed or painted on the wind tower, rotor, wind generator or tail
vane where it would be visible from the ground, except that a small
WECS manufacturer's logo may be displayed on the wind generator in
an unobtrusive manner.
(b)
Lighting. The small wind energy system shall not be artificially
lit unless required by the Federal Aviation Administration or other
appropriate authority with jurisdiction.
(c)
Color. The small WECS wind tower and blades shall be painted
a nonreflective, unobtrusive color that blends into the surrounding
landscape to the greatest extent possible and incorporates nonreflective
surfaces to minimize visual disruption.
(5)
Site requirements.
(a)
Power transmission lines. All power transmission lines from
the small WECS to the electrical power utility grid or to any building
or other structure shall be located underground to the maximum extent
practicable. Such lines must meet national and state electrical codes.
(b)
Zones permitted. Small WECS that meet all the requirements of this section shall be permitted anywhere in the Town except in the five hamlet districts as defined in the Town Code (Oran, Delphi, Watervale, Pompey Hill, Pompey Center). Hamlet residents seeking to erect a small WECS must pursue a variance. See Subsection G herein.
(c)
Number per building. The maximum number of rooftop-mounted or
building-stabilized systems shall be no more than the roofline length
divided by 15 feet.
(6)
Setbacks; ROW; structure; system height.
(a)
Small rooftop- and building-supported systems. There are no
setback requirements for these systems if the building or structure
to which the system is affixed or mounted meets the setback requirements
currently in effect for the Town.
(b)
Small freestanding systems. These systems must meet the following
right-of-way (ROW), side, and rear property line setbacks, as well
as all requirements for overhead power lines and on-site underground
utilities:
[1]
Front, rear and side yard. Minimum setbacks to property lines
and ROW shall equal 120% of the system height, as determined using
an arc-of-fall projection. This represents the minimum setback requirement
with respect to any point on an inhabited structure. No part of a
small WECS or its supporting structures shall be within 10 feet of
a property line.
[2]
Overhead power lines. All small WECS shall maintain a distance
of 150% of the system height, as determined using an arc-of-fall projection,
from the small WECS tower base and the closest point to an overhead
power line.
[3]
Underground utilities. No components of a small WECS shall be
within 10 feet of buried public water, drainage easements, sanitary
sewer facilities, gaslines, cable lines, or power utilities. Also,
no component of a small WECS, other than underground wiring necessary
for the operation of that system, shall be within 20 feet of a private
sewage disposal system or an area of dedicated land for the replacement
of said sewage disposal system. If no mapping or preliminary design
has been undertaken for the purpose of a replacement system, it will
be assumed that an area equal to the existing sewage system will be
required and will provide the same clearance requirements as provided
in the initial application.
[4]
System height. The wind tower height of a small WECS shall be
no more than 100 feet, as measured from the original grade at the
proposed location and as otherwise provided by this section. The rotor
radius for any small WECS shall not exceed 15 feet, thereby providing
a maximum system height of 115 feet. For any site within 500 feet
of the ROW of U.S. Route 20, no small WECS shall have a system height
greater than 75 feet.
(d)
Compliance with ASCE. All freestanding small WECS must meet
the American Society of Civil Engineers (ASCE) Standard No. 7 for
resistance to wind.
F.
Site plan requirements and approval. Small WECS must comply with
all relevant Town of Pompey zoning laws.
(1)
It is the responsibility of the applicant to provide all information
and documentation necessary for the Town to determine what type of
small WECS is being proposed, its proposed location, and its aesthetic
impact.
(2)
A building permit for a small WECS shall be issued if the applicant
meets all of the requirements set forth in this section and satisfactorily
provides the following information at the time of application:
(a)
A completed application form as supplied by the Town for approval
of the installation and operation of a small WECS. Such form shall
include the applicant's and landowner's name and contact information.
(b)
The relevant tax map numbers, including a description of the
existing use and acreage of the site.
(c)
Proof of ownership of the site or proof that the applicant has
written permission from the owner to make such application.
(d)
Survey map showing the following information:
[1]
Property lines and physical dimensions of the site.
[2]
Location, approximate dimensions and types of all existing structures,
buildings and occupied spaces on the site.
[3]
The proposed location for the small WECS, including the elevation
at that site.
[4]
Location of all existing aboveground utility lines and other
small WECS within 500 feet of the proposed small WECS location.
[5]
Approximate location and size of all structures within a five-hundred-foot
radius of the proposed small WECS location, including but not limited
to adjacent ownerships and existing residences, schools, churches,
hospitals, libraries, buildings and occupied spaces.
[6]
Location of all transmission facilities proposed for installation.
[7]
Location of all roads and structures proposed as part of the
installation of the small WECS.
[8]
Location of all federal, state, county or local parks, recognized
historical or heritage sites, state-identified wetlands or important
bird areas as identified in the federal, state, county, local or New
York Audubon's GIS databases or other generally available documentation,
which areas are adjacent to the site.
[9]
Standard engineering drawings or plans of the wind turbine structure,
including, but not limited to, an engineering analysis of the wind
tower, tower base and footings, proposed tower location, rotor diameter,
and ground clearance.
[10]
The applicant shall file a document with the Town
Code Enforcement Officer explaining how the small WECS may be shut
down in case of an emergency.
(3)
Public
hearing. No action shall be taken by the Planning Board to issue a
site plan approval or by the Zoning Board of Appeals to approve a
variance, as the case may be, until after a public notice and hearing.
Notice of the public hearing shall be published in the official newspaper
of the Town of Pompey at least five days before the date set for such
hearing(s), and written notice of the hearing shall be mailed to the
applicant or his/her agent at the address provided in the application
at least 20 days before such hearing. The applicant, in turn, shall
be responsible for notifying, by certified mail, all property owners
of record within 1,000 feet of the boundary line of the property to
which the application relates of the time, date and place of such
public hearing at least 10 days prior to such hearing. Notice shall
be deemed to have been given if mailed to the property owner at the
tax billing address listed on the property tax records of the Town
Assessor. At least seven days prior to such public hearing, the applicant
shall file with the Planning Board or the Zoning Board of Appeals,
as the case may be, an affidavit verifying that notice was properly
mailed to nearby property owners. Failure of the property owners to
receive such notice shall not be deemed a jurisdictional defect.
[Added 12-2-2013 by L.L. No. 6-2013]
G.
Variances. If an applicant does not satisfy all of the requirements
of this section, a building permit shall be denied. However, the applicant
may seek a variance from the Town of Pompey Zoning Board of Appeals
for the construction and placement of the proposed small WECS.
(1)
When addressing whether to issue a variance, the Zoning Board may
consider issues of safety, obtrusiveness or visual impact.
(2)
The Town of Pompey Zoning Board of Appeals may, in its discretion,
expedite the procedure for approval of small WECS.
(3)
The Zoning Board of Appeals may request that the applicant submit
a visual impact analysis of the proposed project and/or utilize mitigation
strategies to reduce the visual impact of the small WECS.
(4)
Mere visibility, even startling visibility, of a small WECS may not
be the sole grounds for denying a variance.
H.
Nuisance prevention. No small WECS shall be constructed or allowed
to continue in operation unless the following standards are met:
(1)
Noise. A small WECS shall be properly maintained and operated at
all times with relation to property lines so that the noise produced
during operation shall not exceed 50 dBA, measured at the boundaries
of all the closest parcels that are owned by nonsite owners. This
level, however, may be exceeded during short-term events, such as
utility outages or wind speeds exceeding 25 miles per hour.
(2)
Electromagnetic and microwave communications interference. Small
WECS shall not be located in any area where their proximity interferes
with existing fixed broadcast, retransmission, or reception antennae
for radio, television, wireless telephones, and personal communications
systems or other broadcast devices or preexisting microwave communications
facilities. The small WECS shall be operated so that no disruptive
electromagnetic interference is caused.
I.
Operation; inspection; fees; penalties. In order to ensure that small
WECS are operated as provided for and intended by this section, the
applicant and/or landowner must meet the following additional requirements:
(1)
Operation of small WECS.
(a)
Operational condition. Should a small WECS be in violation of
a permit condition, the owner or operator shall remedy the situation
within 90 days of written notice from the Town Code Enforcement Officer
of said condition.
(b)
Public hearing. Notwithstanding any other abatement provision
of this section, if the small WECS is not brought into permit compliance
after notice from the Town, the Town Board may, after a public hearing
at which the operator or owner shall be given opportunity to be heard
and present evidence, including a plan to come into compliance, order
either remedial action within a particular time frame or revocation
of the wind energy permit for the WECS and require the removal of
the WECS within 90 days.
(2)
Unsafe small WECS. Should a Code Enforcement Officer deem a small
WECS unsafe or dangerous to the life, health, property or safety of
the public or so damaged, decayed, dilapidated, structurally unsafe,
or of such faulty construction or unstable foundation that partial
or complete collapse is possible, the owner thereof shall remove said
system at the owner's expense within 90 days of written notice thereof
from the Town Code Enforcement Officer.
(3)
Removal. If removal of the small WECS is ordered pursuant to this
section, the owner or operator shall remove the entire aboveground
structure (exclusive of the foundation), including transmission equipment
and fencing. The owner or operator must comply with applicable provisions
of the New York State Building Code and Property Maintenance Law.
(4)
Failure to remove the small WECS. If the small WECS is not removed
by the owner within 90 days of written notice from the Town, the Town
may authorize the dismantling and removal of the small WECS at the
owner's expense. The cost of removing the small WECS and associated
equipment will be a lien on the property and added to the property
owner's tax bill.
(5)
Inspections and enforcement. The Code Enforcement Officer, in the
company of the owner or operator, or his/her agent, may enter the
premises on which a small WECS is being or has been constructed to
inspect all components of the installation. When practicable, the
Code Enforcement Officer shall provide the owner or operator with
written notice of his/her intent to conduct an inspection at least
48 hours before such inspection. Upon inspection, the Code Enforcement
Officer may order the owner to make repairs or alterations to the
system in the event the system is deemed noncompliant, unsafe, deficient
or dangerous and may order that the construction or operation of the
small WECS cease until such repairs or alterations are made. In the
event that the small WECS is deemed to pose an immediate danger to
life or property, the Code Enforcement Officer shall have the right
to enter the property forthwith, without the owner being present,
and to take such action as is deemed reasonably necessary to eliminate
such danger.
(6)
Fees. Fees for applications and permits under this section shall
be established by resolution of the Town Board.
(7)
Penalties. Any person who violates any provision of this section
shall be guilty of a violation and subject to a fine of not more than
$250 and/or 15 days jail.
[1]
Editor's Note: Former §§ 165-15, House trailers,
and 165-16, Permits for the maintenance of house trailers and trailer
camps, were repealed 5-5-1997 by L.L. No. 3-1997.
Except as specifically herein provided in these regulations,
no sign or billboard shall be erected or any existing ones replaced
in any district except upon written approval of the Zoning Board of
Appeals and upon such conditions as said Zoning Board of Appeals may
impose in the interests of public safety and health.
[Added 6-3-2013 by L.L. No. 1-2013]
A.
Authority. The Town Board of the Town of Pompey hereby enacts this
section under the authority granted by:
(1)
Article IX of the New York State Constitution;
(2)
New York Municipal Home Rule Law;
(3)
New York Statute of Local Governments;
(4)
New York Town Law, including but not limited to §§ 130
and 135 and Article 6 (Zoning and Planning);
(5)
New York Environmental Conservation Law; and
(6)
New York Public Health Law.
B.
Findings of fact. The Town Board has heretofore made the following
findings, determinations, and declarations relative to the matters
set forth in this section:
(1)
Pompey is a community in Onondaga County that takes great pride
in and assigns great value to its rural residential character, small-town
atmosphere, high-quality agricultural and forestry land, and scenic
and other natural resources.
(2)
Many Town residents are dependent upon aquifers and wells for
life-sustaining water; maintaining the quality of water resources
within the Town is critical to protecting the natural environment
of the Town, the general health and welfare of Town residents, and
the local economy. The explicitly prohibited uses defined and described
in this section have the potential to damage surface water and groundwater
resources in the event of (by way of example) human error, power outages,
flooding or other natural disasters, or engineered materials and structures
experiencing stresses beyond those for which they are designed. Further,
water pollution is hazardous to the public health. If a domestic water
source is contaminated, remediation is time and cost intensive, and
may not restore the water resource to a quality acceptable for domestic
use.
(3)
Preservation of the Town's irreplaceable scenic sites, air quality
and water quality, and priceless and unique character, is of significant
value to the inhabitants of the Town and to the tourists who visit
here.
(4)
The Town's rich natural environment is a valuable asset that
creates a sense of identity and well-being for residents of the area.
Preserving and protecting the agricultural, scenic, recreational,
and other natural resources of the Town is important for both a healthy
environment and vibrant economy. Aesthetic issues are real and evoke
strong reactions from people. They deeply affect the way people feel
about a place, whether or not businesses will want to locate in a
place or people will want to live in and visit a place.
(5)
Allowing the explicitly prohibited uses defined and described
in this section to be conducted within the Town could impair the existing
character of the Town, because, by their very nature, such activities
have the potential to produce a combination of negative impacts upon
the environment and people living in or in proximity to the communities
in which they are located. Such negative impacts may include, without
limitation, traffic, noise, vibrations, fumes, damage to roadways,
degradation of water quality, degradation of air quality, decreased
availability of affordable housing, damage to and loss of agricultural
lands and soils, damage to and loss of open space, natural areas,
and scenic views, decreased recreational opportunities, and damage
to the tourism industries.
(6)
If one or more of the explicitly prohibited uses defined and
described in this section are conducted within the Town, the traffic
generated thereby could be hazardous or inconvenient to the inhabitants
of the Town and could be dangerous to pedestrians (especially children),
cyclists, and motorists, and could result in traffic congestion that
could delay emergency response times for medical emergencies, fires
and accidents. Certain of the explicitly prohibited uses defined and
described in this section typically involve a large volume of heavy
trucks, and accidents involving heavy trucks have greater potential
for death than those involving smaller vehicles and are more likely
to occur on roads (such as many roads in the Town) that have sharp
corners, narrow lanes, or short sight lines; thus increased volume
of heavy truck traffic may create unsafe conditions for the traveling
public and a strain on emergency responses. Increased truck traffic
increases air pollution and noise levels, and decreases the quality
of life and property values for those living nearby. Further, roads
are a critical public resource and constitute a major investment of
the public's money. Many Town roads are highways by use (as contemplated
by Section 189 of the New York Highway Law) and so are not necessarily
engineered or able to carry repeated legal limit loads. The Town is
not in a position to bear the high costs associated with the road
use impacts that typically accompany many of the explicitly prohibited
uses defined and described in this section.
(7)
If one or more of the explicitly prohibited uses defined and
described in this section are conducted within the Town, the air pollution,
dust and odors generated thereby (whether on site or by truck traffic
to and from the proposed site of such activities) could be hazardous
to the inhabitants of the Town. Air pollution is a known hazard to
the public health.
(8)
If one or more of the explicitly prohibited uses defined and
described in this section are conducted within the Town, noise, vibrations,
and light pollution typically caused by such activities could be hazardous
or inconvenient to the inhabitants of the Town. Noise, traffic congestion,
nighttime lighting and vibrations can have negative effects on human
health and wildlife.
(9)
The recreation, generation, keeping, storage or disposal of
natural gas and/or petroleum extraction, exploration or production
wastes (as the term is defined in this section) within the Town could
have a negative impact on the public health, safety and welfare of
the inhabitants of the Town. As well, there are substantial fiscal
risks arising from such activities in terms of the need for the cleanup,
removal, and/or remediation of such wastes and lands upon which the
same are generated, deposited, or emitted, whether purposefully or
accidentally, including potential liability for such deposits or emissions.
(10)
The high costs associated with the disposal of natural gas and/or
petroleum extraction, exploration or production wastes (as the term
is defined in this section) have in other localities resulted, and
could in our Town result, in persons seeking to avoid such costs by
depositing such material along roadways, in vacant lots, on business
sites, in the private dumpsters of others or in other unauthorized
places. Such activities could pose a hazard to the public health,
safety and welfare of the inhabitants of the Town.
(11)
The Town Board believes it is appropriate to ensure that any
industrial activity contemplated for the Town takes place only if
compatible with present land uses and with the Town's Comprehensive
Plan.
(12)
The explicit proscription of activities such as those prohibited
by this section is a legitimate use of police power-based laws. See
Matter of Gernatt Asphalt Products, Inc. v. Town of Sardinia, 87 N.Y.2d
668 (1996), where the Court of Appeals, New York State's highest court,
held as follows:
|
A municipality is not obliged to permit the exploitation of
any and all natural resources within the town as a permitted use if
limiting that use is a reasonable exercise of its police power to
prevent damage to the rights of others and to promote the interests
of the community as a whole.
| |
|
87 N.Y.2d at 683, 684.
|
C.
Purpose and intent. The purpose and legislative intent underlying
the Town Board's passage of this section are as follows:
(1)
Purposes. This section is enacted so as to take proactive steps
to protect and preserve the quality of the Town's air and water and
historic resources, and other assets, and to protect and promote the
health, safety, and welfare of the Town and its present and future
residents. Without limiting the generality of the foregoing, this
section is intended and is declared by the Town Board to:
(a)
Promote the purposes of planning and land use regulation by,
among other things, preserving the roads, and fire, police, and other
emergency response services in the Town;
(b)
Promote the health, safety and welfare of the Town, its present
and future inhabitants, by protecting them from the adverse public
nuisance and/or land use impacts and effects that could result if
the activities prohibited by this section were allowed to be conducted
within the Town;
(c)
Protect the Town's priceless and unique character, the preservation
of which is of significant value to the inhabitants of the Town and
the tourists who visit here, by protecting it from the adverse public
nuisance and/or land use impacts and effects that could result if
the activities prohibited by this section were allowed to be conducted
within the Town; and
(d)
Protect the Town's irreplaceable historic, water quality, air
quality, scenic and other natural resources, by protecting them from
the adverse public nuisance and/or land use impacts and effects that
could result if the activities prohibited by this section were allowed
to be conducted within the Town.
(2)
Declaration of intent.
(a)
Exercise of police power. This section is a police power, public
nuisance and land use regulation, designed to establish and provide
for general land use regulation, environmental protection, public
safety prevention of increased traffic congestion, protection of rural
and agricultural resources, preservation of the character of the Town,
protection of air quality, protection of water resources quality,
prevention of noise and disturbance, protection against diminished
property values, and protection of the public from nuisance and/or
land use effects and impacts.
(b)
Protection of private drinking water supplies. This section
is intended to protect drinking water supplies and is intended to
supplement and enhance and is not intended to impinge upon the Safe
Drinking Water Act[1] or the underground injunction control programs administered
by the Environmental Protection Agency.
[1]
Editor's Note: See 42 U.S.C. § 300f et seq.
(c)
Matters of local concern. This section is intended to and is
hereby declared to address matters of local concern, and it is declared
that it is not the intention of the Town Board to address matters
of statewide concern.
(d)
Negative externalities. This section is intended and is hereby
declared to impose conditions and restrictions on the use of property
that are directly related to and incidental to the use of that property,
and such conditions and restrictions are aimed at minimizing or precluding
the adverse impact on the Town that could result from an inappropriate
use of the property that could otherwise adversely affect the comfort,
peace, enjoyment, health and safety of the surrounding land.
(e)
Land use control. This section is intended to act as and is
hereby declared to be an exercise of the permissive incidental control
of a police power law that is concerned with the broad area of land
use planning and the physical use of land and property within the
Town, including the physical externalities associated with certain
land uses, such as negative impacts on roadways and traffic congestion
and other deleterious impacts on a community. This section is not
intended to regulate the operational processes of any business. This
section is a law of general applicability and is intended to promote
the interests of the community as a whole.
D.
BELOW-REGULATORY CONCERN
INJECTION WELL
LAND APPLICATION FACILITY
NATURAL GAS
NATURAL GAS AND/OR PETROLEUM EXPLORATION ACTIVITIES
NATURAL GAS AND/OR PETROLEUM EXPLORATION, EXTRACTION OR PRODUCTION
WASTES
(1)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(2)
NATURAL GAS AND/OR PETROLEUM EXPLORATION, EXTRACTION OR PRODUCTION
WASTES DISPOSAL/STORAGE FACILITY
NATURAL GAS AND/OR PETROLEUM EXPLORATION, EXTRACTION OR PRODUCTION
WASTES DUMP
NATURAL GAS AND/OR PETROLEUM EXTRACTION ACTIVITIES
NATURAL GAS COMPRESSION FACILITY
NATURAL GAS PROCESSING FACILITY
PERSON
RADIATION
RADIOACTIVE MATERIAL
SUBSURFACE
UNDERGROUND INJECTION
UNDERGROUND NATURAL GAS STORAGE
Definitions. As used in this section, the following terms shall have
the meanings indicated:
Radioactive material in a quantity or of a level that is
distinguishable from background (as that phrase is defined at 10 CFR
20.1003), but which is below the regulation threshold established
by any regulatory agency otherwise having jurisdiction over such material
in the Town.
A bored, drilled or driven shaft whose depth is greater than
the largest surface dimension, or a dug hole whose depth is greater
than the largest surface dimension of the hole, through which fluids
(which may or may not include semi-solids) are injected into the subsurface
and less than 90% of such fluids return to the surface within a period
of 90 days.
A site where any natural gas and/or petroleum extraction,
exploration or production wastes are applied to the soil surface or
injected into the upper layer of the soil.
Methane and any gaseous substance, either combustible or
noncombustible, which is produced in a natural state from the earth
and which maintains a gaseous or rarefied state at standard temperature
and pressure conditions, and/or gaseous components or vapors occurring
in or derived from petroleum or other hydrocarbons.
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.
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:
Below-regulatory concern radioactive material, or any radioactive
material which is not below-regulatory concern, but which is in fact
not being regulated by the regulatory agency otherwise having jurisdiction
over such material in the Town, whether naturally occurring or otherwise,
in any case relating to, arising in connection with, or produced by
or incidental to the exploration for, the extraction or production
of, or the processing, treatment, or transportation of natural gas,
petroleum, or any related hydrocarbons;
Natural gas or petroleum drilling fluids;
Natural gas or petroleum exploration, drilling, production or
processing wastes;
Natural gas or petroleum drilling treatment wastes (such as
oils, frac fluids, produced water, brine, flowback, sediment and/or
any other liquid or semi-liquid material);
Any chemical, waste oil, waste emulsified oil, mud or sediment
that was used or produced in the drilling, development, transportation,
processing or refining of natural gas or petroleum;
Soil contaminated in the drilling, transportation, processing
or refining of natural gas or petroleum;
Drill cuttings from natural gas or petroleum wells; or
Any other wastes associated with the exploration, drilling,
production or treatment of natural gas or petroleum.
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:
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.
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.
A facility constructed or operated to compress natural gas
that originates from a gas well or collection of such wells, operating
as a midstream facility for delivery of gas from a gas field for entry
into the transmission pipeline system; the term shall not include
the transmission pipeline itself; the term shall include equipment
for liquids separation, natural gas dehydration, and tanks for the
storage of waste liquids and hydrocarbon liquids.
A facility that separates and recovers natural gas liquids
(NGLs) and/or other nonmethane gases and liquids from a stream of
produced natural gas, using equipment for any of the following: cleaning
or stripping gas, cooking and dehydration, residual refinement, treating
or removing oil or condensate, removing water, separating NGLs, removing
sulfur or carbon dioxide, fractionation of NGLs, or the capture of
CO2 separated from natural gas streams.
Any individual, public or private corporation for profit
or not for profit, association, partnership, limited liability company,
limited liability partnership, firm, trust, estate, and any other
legal entity whatsoever which is recognized by law as the subject
of rights and duties.
The spontaneous emission of particles (alpha, beta, neutrons)
or photons (gamma) from the nucleus of unstable atoms as a result
of radioactive decay.
Material in any form that emits radiation. This definition
specifically includes NORM (naturally occurring radioactive material),
but only if such naturally occurring material has been moved from
its naturally occurring location through a mechanical or other man-made
process. All such material is radioactive material for purposes hereof,
whether or not it is otherwise exempt from licensing and regulatory
control pursuant to the New York State Department of Labor, the United
States Nuclear Regulatory Commission, the United States Environmental
Protection Agency, the United States Department of Energy, the United
States Department of Transportation, or any other regulatory agency.
Below the surface of the earth, or of a body of water, as
the context may require.
Subsurface emplacement of natural gas and/or petroleum extraction,
exploration or production wastes, including emplacement 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, whether for the purpose of load balancing the production
of natural gas or for any other reason, including, without limitation,
short-term, long-term or intermittent storage for product quality,
processing or transportation purposes, or because of market conditions.
Without limitation, this term includes compression and dehydration
facilities and associated pipelines.
E.
Explicitly prohibited uses.
(1)
The following uses and activities are hereby expressly and explicitly
prohibited in each and every zoning district within the Town, and
no building or structure shall be created, altered or erected, and
no body of water, land or building thereon shall be used, for any
of such uses or activities:
(a)
Land application facility;
(b)
Natural gas and/or petroleum exploration activities;
(c)
Natural gas and/or petroleum extraction activities;
(d)
Natural gas and/or petroleum exploration, extraction or production
wastes disposal/storage facility;
(e)
Natural gas and/or petroleum exploration, extraction or production
wastes dump;
(f)
Natural gas compression facility;
(g)
Natural gas processing facility;
(h)
Underground injection; and
(i)
Underground natural gas storage.
(2)
Any condition caused or permitted to exist in violation of this § 165-16.1E is a threat to public health, safety and welfare, and is hereby declared and deemed to be a nuisance. Collectively the above expressly prohibited uses may be referred to in this section as "explicitly prohibited uses," any one of the above expressly prohibited uses may be referred to in this section as an "explicitly prohibited use," and any combination of more than one such use may also be referred to as "explicitly prohibited uses."
F.
Prohibition against natural gas and/or petroleum exploration, extraction
or production wastes.
(1)
The Town hereby exercises its authority and right under New
York Environmental Conservation Law § 27-0711 to adopt a
section that is consistent with the Environmental Conservation Law
Article 27, such consistency demonstrated by the fact that this section
complies with at least the minimum applicable requirements set forth
in such statute, and the rules and regulations promulgated pursuant
to said Article 27.
(2)
It shall be unlawful for any person to produce, store, inject,
discard, discharge, dispose, release, or maintain, or to suffer, cause
or permit to be produced, stored, injected, discarded, discharged,
disposed, released, or maintained, anywhere within the Town, any natural
gas and/or petroleum exploration, extraction or production wastes.
G.
No application to customary local distribution lines, etc. The prohibitions set forth above in § 165-16.1E and F of this Article IV are not intended, and shall not be construed, to:
(1)
Prevent or prohibit the right to use roadways in commerce or
otherwise for travel;
(2)
Prevent or prohibit the transmission of natural gas through
utility pipes, lines, or similar appurtenances for the limited purpose
of supplying natural gas to residents of or buildings located in the
Town; or
(3)
Prevent or prohibit the incidental or normal sale, storage or
use of lubricating oil, heating oil, gasoline, diesel fuel, kerosene
or propane in connection with legal farm, residential, business, commercial
and other uses within the Town.
H.
Preexisting, legal, nonconforming natural gas and/or petroleum extraction
activities.
(1)
Notwithstanding any provision of this section to the contrary, any natural gas and/or petroleum extraction activities that are being conducted in the Town as of the effective date of this § 165-16.1 shall be subject to the following:
(a)
If, as of the effective date of this § 165-16.1, substantive natural gas and/or petroleum extraction activities are occurring in the Town, and those activities are in all respects being conducted in accordance with all applicable laws and regulations, including, without limitation, the possession of valid, nonrevoked permits for all matters for which permits are required, and including compliance with each, any, and all permit conditions, as are or may be required by the New York State Department of Environmental Conservation ("DEC") and/or all other regulating local, state, and federal governments, bureaus or agencies, then and only then such activity shall be considered a preexisting, nonconforming use and shall be allowed to continue, subject, however, to the provisions of Subsection H(2)(a) and (b) of this § 165-16.1.
(2)
Natural gas and/or petroleum extraction activities that are being conducted in the Town as of the effective date of this section and which do not qualify for treatment under the preceding Subsection H(1) of this § 165-16.1 shall not be grandfathered (or be permitted to continue or deemed lawful preexisting uses).
(a)
Upon the depletion, closing or reclamation of any well which is allowed to remain in operation after the effective date of this section by virtue of Subsection H(1) of this § 165-16.1, or upon any other substantive cessation of natural gas and/or petroleum extraction activities for a period of more than 12 months, then and in either of such events the preexisting and/or nonconforming use status (and any related grandfathering rights) of or relating to such activity shall terminate.
(b)
Notwithstanding any provision hereof to the contrary, the preexisting, nonconforming status conferred and recognized by Subsection H(1) of this § 165-16.1, is not intended, and shall not be construed, to authorize or grandfather any natural gas and/or petroleum extraction activities extending beyond whatever well bore is authorized in any DEC permit in existence as of the effective date of this section. Any expansion or attempted or purported expansion of such well, whether as to its production, depth, horizon(s) or otherwise, shall not be grandfathered under Subsection H(1) of this § 165-16.1.
I.
Severability. If any word, phrase, sentence, part, section, subsection,
or other portion of this section, or the application thereof to any
person or to any circumstance, is adjudged or declared invalid or
unenforceable by a court or other tribunal of competent jurisdiction,
then, and in such event, such judgment or declaration shall be confined
in its interpretation and operation only to the provision of this
section that is directly involved in the controversy in which such
judgment or declaration is rendered, and such judgment or declaration
of invalidity or unenforceability shall not affect or impair the validity
or enforceability of the remainder of this section or the application
hereof to any other persons or circumstances. If necessary as to such
person or circumstances, such invalid or unenforceable provision shall
be and be deemed severed herefrom, and the Town Board of the Town
hereby declares that it would have enacted this section, or the remainder
thereof, even if, as to particular provisions and persons or circumstances,
a portion hereof is severed or declared invalid or unenforceable.
[Added 2-2-2015 by L.L.
No. 1-2015; amended 4-5-2021 by L.L. No. 1-2021]
A.
Authority. This solar energy section is adopted pursuant to §§ 261
through 263 of the Town Law and § 20 of the Municipal Home
Rule Law of the State of New York, which authorize the Town to adopt
zoning provisions that advance and protect the health, safety, and
welfare of the community, and, in accordance with the Town Law of
New York State, "to make provision for, so far as conditions may permit,
the accommodation of solar energy systems and equipment and access
to sunlight necessary therefor."
B.
Statement of purpose. The Town Board hereby determines and finds
that the following is the policy and purpose of this section:
(1)
This solar energy section is adopted to advance and protect
the public health, safety, and welfare of the Town by creating regulations
for the installation and use of solar energy generating systems and
equipment, with the following objectives:
(a)
To take advantage of a safe, abundant, renewable, and nonpolluting
energy resource;
(b)
To decrease the cost of electricity to the owners of residential
and commercial properties, including single-family houses;
(c)
To increase employment and business development in the Town,
to the extent reasonably practicable, by furthering the installation
of solar energy systems;
(d)
To mitigate the impacts of solar energy systems on environmental
resources such as important agricultural lands, forests, wildlife,
viewsheds and other protected resources; and
(e)
To create synergy between solar and the Town's overarching
sustainability policies as set forth in the Town of Pompey Comprehensive
Plan.
C.
BUILDING-INTEGRATED SOLAR ENERGY SYSTEM
GLARE
GROUND-MOUNTED SOLAR ENERGY SYSTEM
NATIVE PERENNIAL VEGETATION
NET METERING
POLLINATOR
QUALIFIED SOLAR INSTALLER
ROOF-MOUNTED SOLAR ENERGY SYSTEM
SOLAR ACCESS
SOLAR ENERGY EQUIPMENT
SOLAR ENERGY SYSTEM
SOLAR PANEL
STORAGE BATTERY
UNIFIED SOLAR PERMIT
Definitions. As used in this section, the following terms shall have
the meanings indicated:
A combination of solar panels and solar energy equipment
integrated into any building envelope system such as vertical facades,
semitransparent skylight systems, roofing materials, or shading over
windows, which produce electricity for on-site consumption.
The effect by reflections of light with intensity sufficient
as determined in a commercially reasonable manner to cause annoyance,
discomfort, or loss in visual performance and visibility in any material
respects.
A solar energy system that is anchored to or resting directly
on the ground via a pole or other mounting or supporting system (including
ballasts, racks or other nonpenetrative supports), detached from any
other structure, that generates electricity for on-site or off-site
consumption.
Native wildflowers, forbs, and grasses that serve as habitat,
forage, and migratory way stations for pollinators and shall not include
any prohibited or regulated invasive species as determined by the
New York State Department of Environmental Conservation.
A billing arrangement that allows solar customers to receive
credit for excess electricity which is generated from the customer's
solar energy system and delivered back to the grid so that customers
only pay for their net electricity usage for the applicable billing
period.
Bees, birds, bats, and other insects or wildlife that pollinate
flowering plants, and includes both w wild and managed insects.
A person who has skills and knowledge related to the construction
and operation of solar energy systems (and the components thereof)
and installations and has received safety training on the hazards
involved. Persons who are on the list of eligible photovoltaic installers
maintained by the NYS Energy Research and Development Authority (NYSERDA),
or who are certified as a solar installer by the North American Board
of Certified Energy Practitioners (NABCEP), shall be deemed to be
qualified solar installers for the purposes of this definition.
A solar energy system located on the roof of any lawfully
existing building or structure that produces electricity for on-site
or off-site consumption.
Space open to the sun and clear of overhangs or shade so
as to permit the use of active and/or passive solar energy systems
on individual properties.
Electrical material, hardware, inverters, conduit, storage
devices, or other electrical and photovoltaic equipment associated
with the production of electricity.
The component and subsystems required to convert solar energy
into electric energy suitable for use. The term includes, but is not
limited to, solar panels and solar energy equipment. The area of a
solar energy system includes all the land inside the perimeter of
the solar energy system, which extends to any interconnection equipment.
A solar energy system is classified as a Tier 1, Tier 2, or Tier 3
solar system as follows:
A photovoltaic device capable of collecting and converting
solar energy into electricity.
A device that stores energy and makes it available in an
electrical form.
An expedited solar permitting process developed by the NY-Sun
public-private partnership which uses a unified permit across municipalities
in New York State.
D.
Applicability.
(1)
The requirements of this section shall apply to all solar energy
systems permitted, installed, or modified in the Town of Pompey after
the effective date of this section, excluding general maintenance
and repair.
(2)
Solar energy systems constructed or installed prior to the effective date of this section shall not be required to meet the requirements of this section but, if applicable, shall be required to meet the requirements of § 165-16.2 in effect prior to the effective date of this section.
(3)
Modification to an existing solar energy system that increases
the solar energy system area by more than 20% of the original area
of the solar energy system (exclusive of moving any fencing) shall
be subject to this section.
(4)
All solar energy systems shall be designed, erected, and installed
in accordance with all applicable codes, regulations, and industry
standards as referenced in the NYS Uniform Fire Prevention and Building
Code ("Building Code"), the NYS Energy Conservation Code ("Energy
Code"), the National Electric Code, the National Fire Protection Association
codes and the Town Code. To the extent the provisions of the Building
Code, Energy Code, National Electric Code, or National Fire Protection
Association codes are more stringent than the provisions set forth
in this section, the provisions of the Building Code, Energy Code,
National Electric Code or National Fire Protection Association codes
shall apply.
(5)
Any solar energy system that falls within the parameters of
the Unified Solar Permit (USP) process as detailed in the current
USP application available through the Town Clerk or Code Enforcement
Officer shall be eligible to obtain a USP by following the process
set forth in the application.
E.
General requirements.
(1)
A Unified Solar Permit shall be required for the installation
of all Tier 1 and Tier 2 solar energy systems with system capacity
up to 25 kW. A building permit shall be required for all solar energy
systems greater than 25kW.
(2)
The reviewing board or person is encouraged to consider conditions
on sites adjacent to solar energy systems so as to protect system
access to sufficient sunlight to remain economically feasible over
time.
(3)
Issuance of permits and approvals by the reviewing board shall
include the applicable review pursuant to the State Environmental
Quality Review Act ("SEQRA").
(4)
Ground-mounted solar energy systems are prohibited in the R,
R-40, HC and HR Zoning Districts (unless the applicant obtains a use
variance from the Zoning Board of Appeals), as well as in the following
areas of potential sensitivity:
(a)
100-year flood hazard zones considered a V or AE Zone on the
FEMA Flood Maps.
(b)
Historic and/or culturally significant resources which prohibit
construction of a ground-mounted solar energy system as determined
by the New York State Historic Preservation Office (SHPO).
(c)
Within 100 feet landward of a freshwater wetland.
(d)
Adjacent to, or within, the control zone of any airport.
(5)
All solar energy system installations must be performed by a
qualified solar installer.
(6)
Solar energy systems, unless Tier 3 systems, shall be permitted
only to provide power for use by owners, lessees, tenants, residents
or other occupants of the premises on which they are erected, but
nothing contained in this provision shall be construed to prohibit
the sale of excess power through a net-metering arrangement in accordance
with New York Public Service Law § 66-j or similar state
or federal statute. However, solar energy system applications associated
with nonactive farm operations shall be limited to 25 kW or less,
unless a variance is granted by the Zoning Board of Appeals (ZBA).
Solar energy system applications associated with active farm operations
may be permitted up to 50 kW.
(7)
Prior to operation, electrical connections must be inspected
by a Town Code Enforcement Officer and/or by an appropriate electrical
inspector or agency, as determined by the Town.
(8)
Any connection to the public utility grid must be inspected
by the appropriate public utility and proof of inspection shall be
provided to the Town.
(9)
Solar energy systems shall be maintained in good working order.
(10)
If solar storage batteries are included as part of the solar
energy system, they must be placed in a secure container or enclosure
meeting the requirements of the NYS Uniform Fire Prevention and Building
Code and/or the National Fire Protection Association codes when in
use and when no longer used shall be disposed of in accordance with
the laws and regulations of the Town and other applicable laws and
regulations.
(11)
All utility services and electrical wiring/lines shall be placed
underground and otherwise placed within the walls or unobtrusive conduit,
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 rights of way. Conduits
or feeds which are laid on the roof shall be camouflaged to blend
in with the roof and reduce aesthetically objectionable impacts.
(12)
To the extent practicable, solar energy systems shall have neutral
paint colors, materials and textures to achieve visual harmony with
the surrounding area. Solar energy systems shall be composed of panels
which are the same or similar in composition and color.
(13)
The design, construction, operation and maintenance of solar
energy systems shall prevent the direction, misdirection and/or reflection
of solar rays onto neighboring properties, public roads, public parks
and public buildings.
(14)
Marking of equipment:
(a)
Solar energy systems and components shall be marked in order
to provide emergency responders with appropriate warning and guidance
with respect to isolating the solar electric system. Materials used
for marking shall be weather resistant. For residential applications,
the marking may be placed within the main service disconnect. If the
main service disconnect is operable with the service panel closed,
then the marking should be placed on the outside cover.
(b)
In the event any of the standards in this subsection for markings
are more stringent than applicable provisions of the NYS Uniform Fire
Prevention and Building Code or the National Fire Protection Association
codes, this subsection shall be deemed to provide guidelines only
and the standards of the NYS Uniform Fire Prevention and Building
Code or the National Fire Protection Association codes shall apply.
F.
Permitting requirements for Tier 1 solar energy systems.
(1)
All applications for Tier 1 solar energy systems shall be reviewed
by the Code Enforcement Officer, shall be permitted in all zoning
districts, and shall be exempt from site plan review under the Town
Code, subject to the following conditions for each type of solar energy
system:
(a)
Roof-mounted solar energy systems.
[1]
Roof-mounted solar energy systems shall incorporate,
when feasible, the following design requirements:
[a]
Solar panels on pitched roofs shall be mounted
with a maximum distance of eight inches between the roof surface and
the highest edge of the system.
[b]
Solar panels on pitched roofs shall be installed
parallel to the roof surface on which they are mounted or attached.
[c]
Solar panels on pitched roofs shall not extend
higher than the highest point of the roof surface on which they are
mounted or attached.
[d]
Solar panels on flat roofs shall not extend above
the top of the surrounding parapet, or more than 36 inches above the
flat surface of the roof, whichever is higher.
[2]
Glare. All solar panels shall have antireflective
coating(s) and supporting structures shall be constructed of materials
which minimize glare to the maximum extent possible.
[3]
Height. All roof-mounted solar energy systems shall
be subject to the maximum height regulations specified for principal
and accessory buildings within the underlying zoning district.
(b)
Building-integrated solar energy systems shall be shown on the
plans submitted for the building permit application for the building
containing the system.
G.
Permitting requirements for Tier 2 solar energy systems.
(1)
All Tier 2 solar energy systems shall be permitted subject to
the following conditions:
(a)
Code Enforcement Officer approval. All applications for Tier
2 solar energy systems must be reviewed and approved by the Town's
Code Enforcement Officer and shall be exempt from site plan review
under the Town Code.
(b)
Glare. All solar panels shall have antireflective coating(s)
and supporting structures shall be constructed of materials which
minimize glare to the maximum extent possible.
(c)
Setbacks. All ground-mounted solar energy systems shall only
be installed in the side or rear yards (unless a side yard or rear
yard directly abuts a roadway, in which case the system shall be installed
in the rear yard) of the lot. Ground-mounted solar energy systems
shall not be allowed as principal structure on a lot for Tier 2. The
required setbacks shall be as follows:
[1]
Double the required setback of the zoning district
when the property is located in a Commercial, Industrial or Farm District;
or
[2]
Double the required setback for accessory structures
in the zoning district when the property is located in a Residential
or Hamlet District (assuming a use variance has first been granted
by the Zoning Board of Appeals to allow Tier 2 solar energy systems
in these districts).
(d)
Height. Tier 2 solar energy systems shall be subject to the
height limitations specified for accessory structures within the underlying
zoning district or 15 feet, whichever is less.
(e)
Screening and visibility:
[1]
All Tier 2 solar energy systems shall have views
minimized from adjacent properties and roadways to the extent reasonably
practicable.
[2]
Solar energy equipment shall be located in a manner
to reasonably avoid and/or minimize blockage of views and shading
of surrounding properties, while still providing adequate solar access.
[3]
To accomplish adequate screening, architectural
features, earthen berms, or landscaping in the form of at least one
row of native evergreen, trees and/or shrubs which is capable of forming
a continuous hedge at least 25% taller than the maximum height of
the array within two years of planting shall be required and maintained.
The screening shall harmonize with the character of the property and
surrounding area and shall be of a species which provides screening
year round. The exact form of screening shall be determined by the
Code Enforcement Officer.
(f)
Lot size. Tier 2 solar energy systems shall comply with the
existing lot size requirements specified for accessory structures
within the underlying zoning district.
(g)
Maximum landscape coverage. The total coverage of all buildings
and structures on a lot, including Tier 2 ground-mounted solar energy
systems, shall not exceed 50%.
(h)
Decommissioning and removal.
[1]
Unsafe solar energy systems. Should a Code Enforcement
Officer deem a solar energy system unsafe or dangerous to the life,
health, property or safety of the public or so damaged, decayed, dilapidated,
structurally unsafe, or of such faulty construction or unstable foundation
that partial or complete collapse is possible, the owner thereof shall
remove said system at the owner's expense within 90 days of written
notice thereof from the Town Code Enforcement Officer.
[2]
Removal. If removal of the solar energy system
is ordered pursuant to this section, the owner or operator shall remove
the entire aboveground structure (exclusive of the foundation), including
transmission equipment and fencing. The owner or operator must comply
with applicable provisions of the New York State Building Code and
Property Maintenance Law.
[3]
Failure to remove the solar energy system. If the
solar energy system is not removed by the owner within 90 days of
written notice from the Town, the Town may authorize the dismantling
and removal of the solar energy system at the owner's expense.
The cost of removing the solar energy system and associated equipment
will be a lien on the property and added to the property owner's
tax bill.
H.
Permitting requirements for Tier 3 solar energy systems.
(1)
All Tier 3 solar energy systems are permitted through the approval
of a Solar Energy System Overlay District by the Town Board, pursuant
to the following procedure:
(a)
Concept site plan. Prior to the submission of any application
for overlay zoning to the Town Board, the applicant shall submit a
concept site plan, as described below, to the Town Planning Board
for its review and recommendation on the overlay zoning.
(b)
Overlay zoning application. Any application for overlay zoning
shall be submitted to the Town Board and it shall contain the following
information:
[1]
The report of the Town Planning Board resulting
from the aforesaid concept site plan and overlay zoning review.
[2]
The concept site plan. For purposes of this section, a "concept site plan" is a map, drawn to scale, prepared by a licensed engineer, architect, and landscape architect which graphically depicts proposed improvements to the property, including: topographical features, system footprints, travelways, access locations, drainage facilities, lighting, landscaping, buffering, fencing, and signs. Said concept site plan shall also depict existing improvements and contain all information required by § 165-44 and shall be in accordance with the design and construction standards of the Town of Pompey.
[3]
Proof of ownership of the land proposed for overlay
zoning.
[4]
A description of the property and/or parcel. A
metes and bounds description of the parcel will be required at the
time of building permit application.
[5]
A letter of intent which states the land's
present use and the type of solar energy system proposed for the land.
[6]
A completed long form of the environmental assessment
form (EAF).
[7]
A statement as to the present underlying zoning
district and proposed zoning as a Solar Energy Systems Overlay District.
[8]
Present land use and proposed future land use.
[9]
Two copies of an application to overlay zone the
land. Submit the original application to the Town Clerk and give copies
to the Town Supervisor and Town Attorney.
(c)
Solar energy system overlay zoning conditions. All Solar Energy
System Overlay Zoning, prior to being placed on the Town of Pompey
Zoning Map, shall be conditioned upon the applicant obtaining:
[1]
The approval of the Town Board creating the Solar
Energy Systems Overlay District on the property. Said review shall
include a public hearing for overlay zoning approval.
[2]
Site plan approval from the Planning Board. Said
review shall include a public hearing for site plan approval in accordance
with the provisions of § 274(a) of the New York State Town
Law.
[3]
A "glint and glare" study to be performed by the
applicant for any solar energy system greater than one megawatt (MW).
(d)
All Tier 3 solar energy systems are subject to the following
additional conditions:
[1]
Vehicular paths. Vehicular paths within the site
shall be designed to minimize the extent of impervious materials and
soil compaction.
(e)
Signage:
[1]
No signage or graphic content shall be displayed
on the solar energy systems except for the manufacturer's name,
equipment specific information, safety information, and twenty-four-hour
emergency contact information. Said information shall be depicted
within an area of no more than eight square feet.
[2]
As required by National Electric Code (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.
(f)
Glare. All solar panels shall have antireflective coating(s)
and supporting structures shall be constructed of materials which
minimize glare to the maximum extent possible.
(g)
Lighting. Lighting of the solar energy systems shall be limited
to that minimally required for safety and operational purposes and
shall be reasonably shielded and downcast from abutting properties.
(h)
Treecutting. Removal of existing trees and other existing vegetation
should be minimized or offset with planting elsewhere on the property.
(i)
Decommissioning:
[1]
Solar energy systems that have been abandoned and/or
not producing electricity for a period of one year shall be removed
at the owner and/or operator's expense, which at the owner's
option may come from any security made with the Town as set forth
herein.
[2]
A decommissioning plan signed by the owner and/or
operator of the solar energy system shall be submitted by the applicant,
addressing the following:
[a]
The cost of removing the solar energy system.
[b]
The time required to decommission and remove the
solar energy system and ancillary structures.
[c]
The time required to repair any damage caused to
the property by the installation and removal of the solar energy system.
[d]
A detailed description of the site restoration
work that shall be done.
[3]
Security:
[a]
The deposit, execution, or filing with the Town
Clerk of a cash, bond, or other form of security reasonably acceptable
to the Town Attorney and Town Bookkeeper, shall be in an amount sufficient
to ensure the good faith performance of the terms and conditions of
the permit issued pursuant hereto and to provide for the removal and
restorations of the site subsequent to removal. The Town shall hire
an independent engineer or expert, at the applicant's cost, to
provide a written report before construction begins, that determines
the cost of removal and restoration and the bond amount necessary
to secure those costs. The Town Code Enforcement Officer shall have
this report updated every five years by independent engineer or expert
at the expense of the owner of the Tier 3 energy system.
[b]
In the event of default upon performance of such
conditions, after proper notice and expiration of any cure periods,
the cash deposit, bond, or security shall be forfeited to the Town,
which shall be entitled to maintain an action thereon. The cash deposit,
bond, or security shall remain in full force and effect until restoration
of the property as set forth in the decommissioning plan is completed.
[c]
In the event of default or abandonment of the solar
energy system, the system shall be decommissioned as set forth herein.
(2)
Site plan approval. If the Town Board approves a Solar Energy System Overlay District, the Planning Board shall consider a site plan using the criteria set forth in § 165-44 of the Town Code, as well as demonstrated compliance with the requirements of this section.
(a)
Site plan standards:
[1]
Lot size. The property on which the Tier 3 solar
energy system is placed shall be at least 10 acres.
[2]
Setbacks. The Tier 3 solar energy systems shall
be set back:
[a]
A minimum of 100 feet front yard setback and minimum
100 feet from an abutting lot when the property is in a Commercial,
Industrial or Farm District, unless the Planning Board determines,
by findings of fact, that additional setbacks are necessary based
on the health, safety and welfare of the residents or based on the
community character of a particular neighborhood or area.
[b]
A minimum of 200 feet when the property is located
in a Residential or Hamlet District (assuming a use variance has been
granted by the Zoning Board of Appeals). The Zoning Board of Appeals,
at its discretion, may vary the required dimensional setback of 200
feet to minimize environmental impacts created when locating ground-mounted
solar energy systems within the dimensional regulations. In such instances
the Zoning Board of Appeals may vary the setback to 100 feet or 200
feet from the nearest habitable building, whichever distance is more
restrictive. The burden of proof for the grant of such variance shall
always be upon the applicant.
[3]
Height. No structure can exceed 15 feet, including
solar energy systems at maximum tilt angle.
[4]
Maximum landscape coverage:
[a]
The total coverage of all buildings and structures
on a lot, including Tier 3 ground-mounted solar energy systems, shall
not exceed 50%.
[b]
The following components of a Tier 3 solar energy
system shall be included in the calculations for lot coverage requirements:
[i]
Foundation systems, typically consisting of driven
piles or monopoles or helical screws with or without small concrete
collars.
[ii]
All mechanical equipment of the solar energy system,
including any pad-mounted structure for batteries, switchboard, transformer,
or storage cells.
[iii]
Paved access roads servicing the solar energy
system.
(b)
Fencing requirements. All mechanical equipment, including any
structure for storage batteries, shall be enclosed by an eight-foot-high
fence with a self-closing and self-locking gate to prevent unauthorized
access.
(c)
Screening and visibility. Applicants for Tier 3 solar energy
systems shall be required to:
[1]
Conduct a visual assessment of the visual impacts
of the solar energy system on public roadways and adjacent properties.
At a minimum, a line-of-sight profile analysis shall be provided.
Depending upon the scope and potential significance of the visual
impacts, additional impact analyses, including for example a digital
view-shed report, may be required to be submitted by the applicant.
[2]
Submit a screening and landscaping plan, prepared
by a licensed landscape architect, to show adequate measures to screen
through landscaping, grading, or other means so that views of solar
panels and solar energy equipment shall be minimized as reasonably
practicable from public roadways and adjacent properties to the extent
feasible. The screening and landscape plan shall include the locations,
elevations, height, plant species, and/or materials that will comprise
the structures, landscaping and/or grading used to screen and/or mitigate
any adverse aesthetic effects of the system.
(d)
Agricultural resources. For projects located on lands zoned
Farm:
[1]
Any Tier 3 solar energy system shall not exceed
50% of the area of Prime Farmland, Unique Farmland or Farmland of
Statewide Importance on the parcel as defined by federal or state
law/regulation.
[2]
To the maximum extent practicable, Tier 3 solar
energy systems located in these Agricultural Districts shall be constructed
in accordance with the construction requirements of the New York State
Department of Agriculture and Markets.
[3]
Tier 3 solar energy system owners shall develop,
implement, and maintain native vegetation at a minimum of 50% pursuant
to a vegetation management plan by providing native perennial vegetation
and foraging habitat beneficial to game birds, songbirds, and pollinators.
To the extent practicable, when establishing perennial vegetation
and beneficial foraging habitat, the owners shall use native plant
species and seed mixes. Such vegetation and landscaping shall be maintained
during the life of the solar energy system.
(e)
Ownership changes. If the owner or operator of the solar energy
system changes or the owner of the property changes, the successor
owner or operator assumes in writing all of the obligations of the
site plan approval and decommissioning plan. A new owner or operator
of the solar energy system shall notify the Code Enforcement Officer
of such change in ownership or operator within 30 days of the ownership
change.
(g)
Insurance. The applicant, owner, lessee or assignee shall maintain
a current insurance policy which will cover installation and operation
of the solar energy system at all times. Said policy shall provide
a minimum of $2,000,000 property and personal liability coverage and
shall list the Town as an additional insured.
I.
Safety.
(1)
Solar energy systems and solar energy equipment shall be certified
under the New York State Uniform Fire Prevention and Building Code
and applicable electrical codes as required.
(2)
Solar energy 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.
(3)
The applicant shall coordinate with all relevant local fire
departments to discuss emergency access and procedures.
J.
Permit time frame and abandonment.
(1)
The site plan approval for a solar energy system shall be valid
for a period of 12 months, provided that a building permit is issued
for construction. 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 Town Board or Planning Board, within 12 months after
approval, the applicant or the Town may extend the time to complete
construction for 180 days. If the owner and/or operator fails to perform
substantial construction after 24 months, the approvals shall expire.
(2)
Upon cessation of electricity generation of a solar energy system
on a continuous basis for 12 months, the owner and/or operator of
the solar energy system shall implement the decommissioning plan.
The decommissioning plan must be completed within 360 days of cessation.
(3)
If the owner and/or operator fails to comply with decommissioning
upon any abandonment, the Town may, at its discretion, utilize the
bond and/or security for the removal of the solar energy system and
restoration of the site in accordance with the decommissioning plan.
K.
Referral to Environmental Conservation Commission. Upon receipt of
an overlay district application, the Town Board shall e-mail and send
via standard mail said application to the Environmental Conservation
Commission ("ECC") for review and report. The ECC shall report back
to the Town Board within 30 days of such referral. The time period
within which the ECC shall be required to report back may be extended
at the discretion of the Town Board. Failure by the ECC to report
back to the Town Board within the specified time period shall be interpreted
as indicating no objection to the application.
L.
Fees. The application and developer fees for solar energy systems
shall be established from time to time by resolution of the Town Board.
No review of a solar energy system application may commence until
such time as all application and developer fees have been paid.
M.
Taxation. Pursuant to § 487 of the Real Property Tax Law,
the Town shall require all applicants to enter into a contract for
payments in lieu of taxes (PILOT) for all Tier 3 ground-mounted solar
energy systems.
O.
Severability. 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.
