[Added 4-9-2018 by L.L.
No. 3-2018; amended in its entirety 12-28-2020 by L.L. No.
4-2020]
This Zoning for Solar Energy Law is adopted pursuant to §§ 261
to 263 of the Town Law of the State of New York, which authorize the
Town of Lewiston to adopt zoning provisions that advance and protect
the health, safety and welfare of the community and "to make provision
for, so far as conditions may permit, the accommodation of solar energy
systems and equipment and access to sunlight necessary therefor."
The Town Board of the Town of Lewiston makes the following findings:
A.
The Town Board of the Town of Lewiston recognizes that, as properly
regulated, solar energy is a clean, readily available and renewable
energy source beneficial to the Town of Lewiston, its residents and
the general public, and the Town of Lewiston intends to accommodate
the use of solar energy systems.
B.
However, the Town Board finds a growing need to properly site all
types of solar energy systems within the boundaries of the Town of
Lewiston to protect residential and business areas and other land
uses, to preserve the overall beauty, nature and character of the
Town of Lewiston, to promote the effective and efficient use of solar
energy resources, and to protect the health, safety and general welfare
of the citizens of the Town of Lewiston.
C.
Solar energy systems deplete land available for other uses, introduce
industrial usage into other nonindustrial areas, and can pose environmental
challenges and compete with other activities.
D.
Solar energy systems need to be regulated from permitting through
construction and ultimately for their removal when no longer utilized.
The following definitions shall apply to this article:
The person or entity filing an application and seeking an
approval under this article; the owner of a solar energy system or
a proposed solar energy system project; the operator of solar energy
system or a proposed solar energy system project; any person acting
on behalf of an applicant, solar energy system or proposed solar energy
system. Whenever the term "applicant" or "owner" or "operator" is
used in this article, said term shall include any person acting as
an applicant, owner or operator. Notwithstanding the foregoing, "applicant,"
"owner" and "operator" are distinct terms from the "property owner."
A solar energy system incorporated into and becoming part
of the overall architecture and design of a building or structure
in a manner that the solar energy system is a permanent and integral
part of the building envelope or structure.
A solar energy system that is affixed to the side(s) of a
building or other structure either directly or by means of support
structures or other mounting devices, but not including those mounted
to the roof or top surface of a building. Said system is designed
and intended to generate electricity for use on said lot, potentially
for multiple tenants. Although said system may be connected to a utility
grid, it is designed to produce only enough energy to service the
lot on which it sits.
Any battery or other device used or intended to be used to
store energy created by a solar energy system so that it may be utilized
at a future time.
A solar energy system that is affixed to the ground either
directly or by support structures or other mounting devices. Said
system is an accessory structure, designed and intended to generate
electricity for use on said lot, potentially for multiple tenants.
Although said system may be connected to a utility grid, it is designed
to produce only enough energy to service the lot on which it sits.
The titled owner or owners of the real property upon which
a solar energy system is located or is proposed to be located.
Any solar energy system that is affixed to the roof of a
building and wholly contained within the limits of the roof surface.
Said system is designed and intended to generate electricity solely
for use on said lot, potentially for multiple tenants. Although said
system may be connected to a utility grid, it is designed to produce
only enough energy to service the lot on which it sits.
Electrical energy storage devices, material, hardware, inverters,
or other electrical equipment and conduit of photovoltaic devices
associated with the production of electrical energy.
An electrical generating system composed of a combination
of both solar panels and solar energy equipment.
A photovoltaic device capable of collecting and converting
solar energy into electrical energy.
A right, expressed as an easement, covenant, condition, or
other property interest in any deed or other instrument executed by
or on behalf of any property owner, that protects the solar skyspace
of any solar energy facility at a designated location for designated
time periods by forbidding or limiting activities, land uses, development,
and/or vegetation that would interfere with or obstruct the solar
skyspace, thus reducing the feasibility of operating the solar energy
system.
Any solar energy system that is designed and intended to supply
energy primarily into a utility grid for sale to, or use by, the general
public, whether or not it also supplies energy for use on the parcel
of land on which it is located; or
Any solar energy system that consists of an overall footprint
greater than five acres.
Any solar energy system not meeting another definition as outlined
in this article will be treated as utility-scale solar energy and
subject to the requirements of such.
Subject to the provisions of this article, solar energy systems
shall be allowed as follows:
A.
Rooftop-mounted, building-mounted, and building-integrated (BIPV)
solar energy systems are permitted in all zoning districts in the
Town through a building permit application process. (BIPV systems
may be permitted under an overall building permit for a structure.)
B.
Ground-mounted solar energy systems are permitted as accessory structures,
requiring site plan approval, in the following districts (unless restricted
in any zoning overlay district):
(1)
Open Space Preservation and Recreation Districts (OSPR), Business
Districts (B), Rural Business Districts (RB), Planned Development
Districts (PD) when included in the plan, and all industrial districts
I-1 and 1-2); and
(2)
One-Family Residence Districts (R-1), Rural Residential Transitional
Districts (RRT), Rural Residential Districts (RR), Two-Family Residence
Districts (R-2), Traditional Neighborhood Development Districts (TND)
or Publicly Owned Districts (PO) only if the lot on which the ground-mounted
solar energy system is situated is greater than two acres.
C.
Utility-scale solar energy systems are only permitted by special
use permit in Rural Residential Districts (RR) or all industrial districts
(I-1 and I-2) as follows:
(1)
Utility-scale
solar energy systems without electrical energy storage systems are
permitted in Rural Residential Districts (RR) or all industrial districts
(I-1 and I-2); and
(2)
Utility
-scale solar energy systems with electrical energy storage systems
are permitted only in all industrial districts (I-1 and I-2).
D.
Any inconsistent provisions of this chapter which purport to or may
be interpreted to allow solar energy systems in other districts are
hereby superseded.
The placement, construction, and major modification of all solar
energy systems within the boundaries of the Town of Lewiston shall
be permitted only as follows:
A.
Rooftop-mounted, building-integrated and building-mounted solar energy
systems upon issuance of building permit.
B.
Ground-mounted solar energy systems after SEQRA review and upon concurrent
site plan approval by the Town of Lewiston Planning Board, and upon
issuance of a building permit issued according to the Town Code and
New York State Building Code, and shall be subject to all provisions
of this article.
C.
Utility-scale solar energy systems shall be permitted only by special
use permit issued according to the Code in use districts where allowed
in accordance with the criteria established in this article, after
SEQRA review, and upon concurrent site plan approval, and upon issuance
of a building permit, and shall be subject to all provisions of this
article.
D.
All solar energy systems existing on the effective date of this article
shall be allowed to continue usage as they presently exist. Routine
maintenance shall be permitted on such existing systems. Any new construction,
including but not limited to replacement with a new system of like
construction and size, shall comply with the requirements of this
article and would require initiation of a new application process.
E.
No solar energy system shall hereafter be used, erected, moved, reconstructed,
changed or altered except in conformity with these regulations.
F.
Any applications (including variance applications) pending for solar
energy systems on the effective date of this article shall be subject
to the provisions of this article.
G.
This article shall take precedence over any inconsistent provisions
of this chapter of the Town of Lewiston.
H.
This article shall not apply to any lot owned by a municipality..
I.
This article shall not apply to any lot located within the Village
of Lewiston.
J.
Electrical
energy storage device. When any electrical energy storage device,
including any batteries or battery systems, are included as part of
a solar energy system, they shall be placed in a secure container
or enclosure meeting the requirements of the New York State Building
Code.
A.
Rooftop-mounted and building-mounted solar energy systems shall not
be more than three feet higher than the finished roof to which they
are mounted, and in no instance shall any part of the system extend
beyond three feet before the edge of the roof. All rooftop-mounted
or building-mounted solar energy systems shall meet all building permit
requirements, including the New York State Uniform Fire Prevention
and Building Code standards (which includes Fire Department access
areas), and be installed by a qualified solar installer. The Building
Inspector may require, in his sole discretion, walkways for safety
access purposes.
B.
Building-mounted solar energy systems shall not be more than three
feet from the building wall, and in no instance shall any part of
the system extend beyond the roofline or parapet wall.
C.
Ground-mounted solar energy systems shall be subject to the following
requirements:
(1)
The location of said solar energy system shall be placed no
closer than three times the height of the solar energy system, but
not less than 25 feet from any property line; and
(2)
The location of said solar energy system shall be only located
in the side or rear yard; and
(3)
The location of said solar energy system shall not be placed
closer than 30 feet from any other structure on the lot; and
(4)
The orientation of said solar energy system shall not be pointed
at any neighboring dwelling, where feasible; and
(5)
The height of said solar energy system shall not exceed 10 feet
when oriented at maximum tilt on a lot situated in a One-Family Residence
District (R-1), Two-Family Residence District (R-2), Traditional Neighborhood
Development District (TND), Rural Residential Transitional District
(RRT), or Rural Residential District (RR); and
(6)
The height of said solar energy system shall not exceed 15 feet
when oriented at maximum tilt on a lot situated in a Business District
(B), Rural Business District (RB), Planned Development District (PD),
Open Space Preservation and Recreation District (OSPR), Publicly Owned
District (PO) or all industrial districts (I-1 and I-2); and
(7)
The total surface area of said solar energy system on a lot
shall not exceed 5% of the total lot area where permitted in a One-Family
Residence District (R-1), Two-Family Residence District (R-2), Traditional
Neighborhood Development District (TND), Rural Residential Transitional
District (RRT) or Rural Residential District (RR); and
(8)
The total surface area of said solar energy system on a lot
which is two acres or less situated in an Open Space Preservation
and Recreation District (OSPR), Business District (B), Rural Business
District (RB), Planned Development District (PD), Publicly Owned District
(PO) or all industrial districts (I-1 and I-2) shall not exceed 1,000
square feet; and
(9)
The total surface area of said solar energy system on a lot
which is greater than two acres situated in an Open Space Preservation
and Recreation District (OSPR), Business District (B), Rural Business
District (RB), Planned Development District (PD), Publicly Owned District
(PO) or all industrial districts (I-1 and I-2) shall not exceed 5%
of the total square footage of the entire lot; and
(10)
All building permit requirements, including the New York State
Uniform Fire Prevention and Building Code standards, shall be met,
and the solar energy system shall be installed by a qualified solar
installer. Whether an installer is a qualified solar installer shall
be determined by the Town Building Inspector.
D.
Site plan requirements for a ground -mounted solar energy system.
(1)
The applicant shall be required to submit a site plan drawn
in sufficient detail as follows:
(a)
Plans and drawings of the solar energy system installation signed
by a professional engineer registered in New York State showing the
proposed layout of the solar energy system along with a description
of all components (including but not limited to electrical energy
storage systems), existing vegetation, any proposed clearing and grading
of the lot involved, any stormwater or erosion disturbances, and utility
lines, both above and below ground, on the site and adjacent to the
site; and
(b)
Property lot lines and the location and dimensions of all existing
structures and uses on site within 500 feet of the solar panels; and
(c)
Any proposed fencing and/or screening for said project; and
(d)
Any such additional information as may be required by the Town's
professional engineer or consultant, Town of Lewiston Planning Board,
Town Attorney, Building Inspector or other Town entity.
(2)
A public hearing on said site plan shall be held by the Planning
Board.
E.
Electrical energy storage systems, including any electrical storage
batteries. When electrical energy storage systems are included as
part of any solar energy system, they shall be placed in secure container
or enclosure meeting the requirements of the New York State Building
Code.
F.
All solar energy systems, regardless if they tie into the grid or
not, shall adhere to all applicable federal, state, county and Town
of Lewiston laws, regulations and building, plumbing, electrical,
and fire codes, and the applicant shall provide the Building Inspector
with all certifications of proper placement and installation, including
electrical, as the State Code or the Building Inspector deems necessary.
G.
Any solar energy system and any related access road shall be accessible
for all emergency service vehicles and personnel.
H.
All structures and devices used to support solar collectors shall
be nonreflective and/or painted a subtle or earth-tone color.
I.
The design, construction, operation, and maintenance of any solar
energy system shall seek to prevent the misdirection and/or reflection
of solar rays onto neighboring properties, public roads, and public
parks, to the extent practicable.
J.
The development and operation of a solar energy system shall not
have a significant adverse impact on fish, wildlife, or plant species
or their critical habitats, or other significant habitats identified
by the Town of Lewiston or other federal or state regulatory agencies.
Any and all trees and/or vegetation installed or proposed to be installed
in conjunction with any solar energy system, including those for ground
cover and/or used to provide screening for a solar energy system shall
be of plant species native to the Western New York Region so as to
promote the habitats of native pollinators and wildlife.
K.
Artificial lighting of any solar energy systems shall be limited
to lighting required for safety and operational purposes and shall
be shielded from all neighboring properties and public roads. Such
lighting shall not be designed to operate continuously at night, unless
a compelling safety or operational purpose exists, and shall be designed
to minimize light pollution of the night skies.
L.
If the use of an approved solar energy system is discontinued, the
owner or operator shall notify the Building Inspector within 30 days
of such discontinuance. If a solar energy system is to be retained
and reused, the owner or operator shall further inform the Building
Inspector of this in writing at such time and obtain any necessary
approvals within one year; otherwise it shall be automatically deemed
abandoned and shall be decommissioned at the expense of the property
owner.
M.
Any solar energy system to be used strictly for agricultural use
purposes in a state-designated agricultural district in accordance
with the New York State Agriculture and Markets Law may have some
of the requirements of this article waived by the Planning Board upon
written request signed by the applicant.
N.
An applicant shall be responsible for the disposal of any solar energy
system components in compliance with all federal, state and local
laws and regulations for disposal of said solar energy system existing
at such time as the disposal takes place, and at no later date than
one year after abandonment.
Applications under this article shall be made in accordance with Article XXI, Special Use Permits, and as follows. Applicants for a special use permit to place, construct, and/or make a major modification to a utility-scale solar energy system within the boundaries of the Town of Lewiston shall submit 12 sets of the following information to the Building Inspector, who shall first present it to a professional engineer or consultant for an initial review and then on to the Planning Board for its review and recommendation. The Planning Board or Town Board may make such additional referrals as it deems appropriate. No such application shall be deemed filed until any required application fee has been paid. The following information shall be contained in the application:
A.
completed State Environmental Quality Review Act (SEQRA) short-form
environmental assessment form (EAF), unless a full form is required
by the Town's professional engineer, consultant, or the Town of Lewiston
Planning Board.
B.
Necessary special use permit information:
(1)
Name, address, and telephone number of the property owner. If
the property owner is not the applicant, the application shall include
the name, address, and telephone number of the applicant and a letter
or other written permission signed by the property owner authorizing
the applicant to represent the property owner; and
(2)
Documentation of access to the project site(s), including location
of all access roads, gates, parking areas, etc.; and
(3)
Documentation of the clearing, grading, stormwater and erosion
control plans; and
(4)
Utility interconnection data and a copy of written notification
to the utility of the proposed interconnection; and
(5)
One- or three-line electrical diagram detailing the solar energy
system installation, associated components, and electrical interconnection
methods, with all disconnects and overcurrent devices; and
(6)
A property owner who has installed or intends to install a utility-scale
solar energy system may choose to negotiate with other property owners
in the vicinity for any necessary solar skyspace easements. The issuance
of a special use permit does not constitute solar skyspace rights,
and the Town shall not be responsible for ensuring impermissible obstruction
to the solar skyspace as a result of uses or development performed
in accordance with the Town Code. In the event that solar easements
are negotiated by an applicant or property owner for a utility-scale
solar energy system, a copy or documentation of any solar skyspace
easements shall be provided, properly recorded as such, negotiated
with neighboring property owners, that shall, at a minimum, include:
(a)
The restrictions placed upon buildings, structures, vegetation
and other objects or uses that would potentially obstruct the solar
skyspace of the solar energy system; and
(b)
A description of the dimensions of the easement expressed in
measurable terms, such as the maximum height of buildings and structures,
vertical or horizontal angles measured in degrees, or the hours of
the day on specified dates during which direct sunlight to a specified
surface of a solar collector may not be obstructed, or a combination
of these descriptions; and
(c)
The amount, if any, of permissible obstruction of the solar
skyspace through the easement, expressed in measurable terms, such
as a specific percentage of the solar skyspace that may be obstructed
or hours during the day; and
(d)
Provision for trimming vegetation that would impermissibly obstruct
solar skyspace, including any compensation for trimming expenses;
and
(e)
Provisions for compensation of the owner/operator benefitting
from the easement in the event of impermissible obstruction of the
solar skyspace that would be in violation of the easement; and
(f)
The terms or conditions, if any, under which the easement may
be revised or terminated.
(7)
Documentation
of the proposed construction schedule, from beginning to end of construction,
with all staging of construction to take place on the lot where the
solar energy project is proposed, to the extent practicable.
(8)
Documentation
of a comprehensive screening and vegetation plan, that shall, at minimum,
include:
(a)
Screening of a permanent nature that will fully enclose the proposed
solar energy system so as to significantly diminish site lines from
all adjacent property.
(b)
Exclusive use of trees, shrubs and/or vegetation native to the Western
New York Region so as to promote the habitats of native pollinators
and wildlife.
(c)
Any and all vegetation and ground cover to be exclusively of vegetation
native to the Western New York Region chosen to promote native pollinators,
such as bees, butterflies and moths.
(d)
Driveways and paths of egress to and from the solar energy system
to be designed with "S" shaped curves, or other comparable design,
to limit direct views to the solar energy system from adjacent roads,
to the extent practicable.
(e)
Screening and vegetation plans to be drafted and endorsed by licensed
engineer or other competent professional to include images of the
screening from each compass directional (and/or additional views,
as requested by the Planning Board) shown at time expected intervals
of:
(f)
Screening plan during construction: All staging and construction
areas shall, prior to construction, be screened to significantly diminish
site lines from all adjacent roadways and any residential dwellings
on adjacent properties. Screening of a temporary nature, including
but not limited to opaque temporary fencing, may be used to obstruct
sight lines of the staging and construction areas or permanent screening
may be installed prior to staging and/or construction, if sufficient
to achieve such objective.
C.
A site plan drawn in sufficient detail as follows:
(1)
Plans and drawings of the solar energy system installation signed
by a professional engineer registered in New York State showing the
proposed layout of the entire solar energy system along with a description
of all components, whether on site or off site, existing vegetation
and proposed clearing and grading of all sites involved, and utility
lines, both above and below ground, on the site and adjacent to the
site; and
(2)
Property lot lines and the location and dimensions of all existing
structures and uses either on or off site within 1,000 feet of the
solar panels; and
(3)
Proposed fencing and/or screening for said project, in accordance
with the special use permit requirements of this chapter.
D.
For all utility-scale solar energy systems, the applicant shall submit
a decommissioning plan for review and approval as part of the special
use permit application. The decommissioning plan shall identify the
anticipated life of the project, method and process of removing all
components of the solar energy system and returning the site to its
preexisting condition and estimated decommissioning costs, including
any salvage value. The applicant shall submit an updated decommissioning
plan every five years during the life of the solar energy system.
E.
Any such additional information as may be required by the Town's
professional engineer or consultant, Town of Lewiston Planning Board,
Town Attorney, Building Inspector or other Town entity.
Special use permits issued for a utility-scale solar energy
system shall meet the following conditions:
A.
Minimum lot area: The minimum lot area shall be five acres.
B.
Maximum lot area: The maximum lot area shall be 100 acres.
C.
Setbacks: Any utility-scale solar energy system shall adhere to the
following setbacks:
(1)
From any residential district (R-1, R-2, RR, RRT or TND), business
district (B or RB), Cluster Housing District (CH) or Planned Development
District (PD) use district: a minimum 200 feet from all property lot
lines bordering these use districts.
(2)
From any industrial (I-1 or I-2) use district: a minimum of
100 feet from all property lines bordering an industrial (I-1 or I-2)
use district.
(3)
From any property lot lines: a minimum of 100 feet from any
property lot line.
(4)
From buildings or structures:
(a)
A minimum of 250 feet from any building or structure, on the
proposed developed lot, except if said building or structure is used
for the actual operation of the utility-scale solar energy system;
and
(b)
A minimum of 700 feet from any dwelling on adjoining lots and
500 feet from any other structure on adjoining lots.
(6)
From schools and public parks: a minimum of 500 feet from all
property lot lines bordering a school or public park.
D.
Maximum overall height. The height of a utility-scale solar energy
system shall not exceed 20 feet when oriented at maximum tilt.
E.
Number of utility-scale solar energy systems allowed per lot. There
shall only be allowed one utility-scale solar energy system per lot.
F.
A utility-scale solar energy system shall only be located in a rear
yard if there is a principal structure or dwelling on said lot.
G.
A utility-scale solar energy system shall adhere to all applicable
federal, state, county and Town of Lewiston laws, regulations, building,
plumbing, electrical, and fire codes.
H.
Development and operation of a utility-scale solar energy system
shall not have a significant adverse impact on fish, wildlife, or
plant species or their critical habitats, or other significant habitats
identified by the Town of Lewiston or other federal or state regulatory
agencies. The applicant must supply specific information on the project's
potential impacts to migrating birds.
I.
The design, construction, operation, and maintenance of a utility-scale
solar energy system shall prevent the misdirection and/or reflection
of solar rays onto neighboring properties, public roads, and public
parks to the extent practicable.
J.
All structures and devices used to support solar collectors shall
be nonreflective and/or painted a subtle or earth-tone color.
K.
All transmission lines and wiring associated with a utility-scale
solar energy system shall be buried and include necessary encasements
in accordance with the National Electrical Code and Town requirements.
The applicant is required to show the locations of all proposed overhead
and underground electric utility lines, including substations and
junction boxes, and all other electrical components and components
of the electrical system, including electrical poles, for the project
on the site plan.
L.
All transmission lines and electrical wiring shall be in compliance
with the utility company's requirements for interconnection.
M.
Artificial lighting of utility-scale solar energy systems shall be
limited to lighting required for safety and operational purposes and
shall be shielded from all neighboring properties and public roads.
Such lighting shall not be designed to operate continuously at night,
unless a compelling safety or operational purpose exists, and shall
be designed to minimize light pollution of the night skies.
N.
Any signage used to advertise the solar energy facility shall be
in accordance with the Town's signage regulations.
O.
Any site containing a utility-scale solar energy system shall contain
fencing or other device acceptable to the Town, enclosing all solar
energy system components that present safety hazards. If such fencing
is required it shall be eight feet tall, contain no barbed wire, and
be designed to incorporate natural colored screening measures.
P.
A berm, landscape screen, or other opaque enclosure, or any combination
thereof, consistent with all other screening and/or vegetation provisions
of this article, capable of fully enclosing the solar energy system
such that it will significantly diminish sight lines from all adjacent
property, is required.
Q.
After completion of a utility-scale solar energy system, the applicant
shall provide a post-construction certification from a professional
engineer registered in New York State that the project complies with
applicable codes and industry practices and has been constructed and
is operating according to the design plans.
R.
Compliance with regulatory agencies. The applicant is required to
obtain all necessary regulatory approvals and permits from all federal,
state, county, and local agencies having jurisdiction and approval
related to the completion of a utility-scale solar energy system.
S.
A bond or other appropriate form of security acceptable to the Town shall be provided to cover the cost of the removal of the entire solar energy system (including, but not limited to, any panels, support structure, wiring, cables, light fixtures, fixtures, battery systems, and accessory structures) and site restoration. Said bond shall transfer to cover any subsequent owner or operator of the system. Said bond or security shall be filed prior to construction. Said bond shall not be revocable and shall extend for a period of not less than the actual removal and restoration without limit as to duration. Said bond shall be updated every five years, in conjunction with submittal of the updated decommissioning plan pursuant to § 360-219, to cover the estimated cost of actual removal and remediation of the site.
T.
Clearing, grading, stormwater and erosion control.
(1)
Before the Town of Lewiston shall issue a clearing, grading,
stormwater or building permit for a utility-scale solar energy system,
the applicant shall submit a stormwater and erosion control plan to
the Town Engineer and Stormwater Management Officer for their review
and approval; and
(2)
The plan shall minimize the potential adverse impacts on wetlands
and Class I and II streams and the banks and vegetation along those
streams and wetlands and minimize erosion or sedimentation.
U.
Shall meet all building permit requirements, including the New York
State Uniform Fire Prevention and Building Code standards, and be
installed by a qualified solar installer.
V.
A proposed
construction schedule, from beginning to end of construction, with
all staging of construction to take place on the lot where the solar
energy project is proposed, to the extent practicable.
A.
Time limit on completion. After the granting of a special use permit
for a utility-scale solar energy system with concurrent site plan
approval by the Town Board or site plan approval of a ground-mounted
solar energy system by the Planning Board, the building permit shall
be obtained within six months and the project shall be completed within
12 months. A six-month extension of either the building permit or
completion time can be issued by the applicable approving board. If
not constructed, the special use permit and/or site plan approval
shall automatically lapse within 12 months after the date of approval,
unless an extension is applied for and approved. If allowed to lapse,
the applicant's approval will be deemed null and void. Any further
efforts to obtain the same or similar permit/approval will require
strict conformity with this Code as if it were a new application.
B.
Inspections. Upon reasonable notice, the Town of Lewiston Building
Inspector or his or her designee may enter a lot on which a solar
energy system has been approved for the purpose of inspection for
compliance with the application materials as well as any and all other
applicable requirements, conditions, codes regulations and/or laws.
For utility-scale solar energy systems, such inspections shall include,
but not be limited to, focus on the screening and vegetation plans.
Twenty-four hours' advance notice by telephone to the owner/operator
or designated contact person shall be deemed reasonable notice. Furthermore,
a utility-scale solar energy system shall be inspected annually by
a New York State licensed professional engineer that has been approved
by the Town or at any other time, upon a determination by the Town's
Building Inspector that damage may have occurred, and a copy of the
inspection report shall be submitted to the Town Building Inspector.
Any fee or expense associated with this inspection shall be borne
entirely by the permit holder and will be set from time to time by
the Town Board pursuant to the Town's fee schedule. For utility-scale
solar energy systems, such inspections will take place on a yearly
basis following issuance of the building permit and at such other
times as determined by the Building Inspector.
C.
General complaint process. During construction, the Town Building
Inspector can issue a stop order at any time for any violations of
a special use permit or building permit. After construction is complete,
the permit holder of a utility-scale solar energy system shall establish
a contact person, including name and phone number, for receipt of
any complaint concerning any permit requirements.
D.
Continued operation. A solar energy system shall be maintained in
operational condition at all times, subject to reasonable maintenance
and repair outages. "Operational condition" includes meeting all approval
requirements and conditions, including but not limited to the screening
and vegetation plan and other portions of the applicant's submissions.
Also, to be functioning in operational condition, the solar energy
system must function at a minimum of 25% capacity. Failure of a solar
energy system to achieve at least 25% of capacity for a period of
six months shall result in a determination of inoperative, substantially
inoperative or abandoned. Further, the Building Inspector shall also
have the right to request documentation from the owner for a solar
energy system regarding the system's usage, functioning and capacity
on a yearly basis, or at any other time as determined by the Building
Inspector.
E.
Removal. All solar energy systems shall be dismantled and removed
immediately from a lot, at the expense of the owner, when the special
use permit or approval has been revoked by the Town of Lewiston Planning
Board or the solar energy system has been deemed inoperative, substantially
inoperative or abandoned by the Building Inspector for a period of
more than 365 days, at the cost of the owner. If the owner does not
dismantle and remove said solar energy system as required, the Town
Board may, after a hearing at which the owner shall be given an opportunity
to be heard and present evidence, dismantle and remove said facility
and place the cost of removal as a tax lien on said parcel.
F.
Determination of abandonment or substantial inoperability. A determination
of the abandonment or substantial inoperability of a solar energy
system shall be made by the Town Building Inspector, who shall provide
the owner with written notice by personal service or certified mail.
Any appeal by the owner of the Building Inspector's determination
of abandonment or inoperability shall be filed with the Town of Lewiston
Town Board within 30 days of the Building Inspector causing personal
service or mailing by certified mail his written determination, and
the Board shall hold a hearing on same. The filing of an appeal does
not stay the following time frame unless the Town Board or a court
of competent jurisdiction grants a stay or reverses said determination.
At the earlier of the 366 days from the date of determination of abandonment
or inoperability without reactivation, or upon completion of dismantling
and removal, any approvals for the solar energy system shall automatically
expire.
G.
Application and annual fees.
(1)
Utility-scale solar energy system. An applicant shall pay an
initial application fee, as set by the Town, upon filing its special
use permit and site plan application to cover the cost of processing
and reviewing the application. If approved, the owner shall pay an
annual fee, as set by the Town, to cover the cost of processing and
reviewing the annual inspection report(s) and for administration,
inspections and enforcement.
(2)
Site plan application for ground-mounted solar energy systems.
An applicant shall pay the standard site plan review fee as determined
from time to time by the Town Board by resolution.
(3)
The Town of Lewiston reserves the right, by local law, to provide
that no exemption pursuant to the provision of New York State Real
Property Tax Law (RPTL) § 487 shall be applicable within
its jurisdiction.
H.
Prior to the issuance of a building permit, the applicant shall document
that all applicable federal, state, county, and local permits have
been obtained.
I.
Special use permits for a utility-scale solar energy system granted
under this article shall be issued only following a public hearing
held as required by this chapter.
J.
The Planning Board or Town Board may:
(1)
For utility-scale solar energy systems, the Town Board may grant a special use permit, deny a special use permit, or grant a special use permit with written stated conditions. The Town Board, in making this decision, shall make findings in accordance with this article and with § 360-131 of Article XXI. Denial of a special use permit shall be by written decision based upon substantial evidence considered by the Board. Upon issuance of a special use permit, the applicant shall obtain a building permit for the utility-scale solar energy system.
(2)
For ground-mounted solar energy systems, when site plan review
is required by the Planning Board pursuant to this article, the Planning
Board may grant site plan approval, deny site plan approval or grant
site plan approval with written stated conditions. Denial of site
plan approval shall be by written decision based upon substantial
evidence considered by the Planning Board. Upon issuance of a site
plan approval, the applicant shall obtain a building permit for the
ground-mounted solar energy system.
K.
Any changes or alterations post construction to a utility-scale or
ground-mounted solar energy system shall be done only by amendment
to the special use permit and/or site plan (if required), subject
to all requirements of this Code.
L.
Special use permits for utility-scale solar energy systems shall
be assignable or transferable so long as they are in full compliance
with this article and all the conditions and the Building Inspector
is notified in writing at least 15 days prior thereto.
M.
In addition to the requirements of this article, the special use
permit application shall be subject to any other site plan approval
requirements set forth in this chapter.
If the applicant violates any of the conditions of its special
use permit or site plan approval or violates any other local, state
or federal laws, rules or regulations, this shall be grounds for revocation
of the special use permit or site plan approval. Revocation may occur
after the applicant is notified, in writing, of the violations and
the Town of Lewiston Planning Board holds a hearing on same.
In their interpretation and application, the provisions of this
article shall be held to be minimum requirements, adopted for the
promotion of the public health, safety and general welfare. It is
not intended to interfere with, abrogate, or annul other rules, regulations
or laws, provided that, whenever the requirements of this article
are at a variance with the requirements of any other lawfully adopted
regulations, rules or laws, the most restrictive, or those which impose
the highest standards, shall govern.
If any section, subsection, phrase, sentence, or other portion
of this article is for any reason held invalid, void, unconstitutional,
or unenforceable by any court of competent jurisdiction, such portion
shall be deemed a separate, distinct, and independent provision, and
such holding shall not affect the validity of the remaining portions
hereof.
