[Adopted 2-14-2018 by L.L. No. 1-2018]
This article may be cited as the "Town of Berne Small-Scale Solar Energy Law."
The Town Board of the Town of Berne enacts this article under the authority granted by § 10 of the New York State Municipal Home Rule Law and the New York State Town Law.
The purpose of this article is to provide for the construction and operation of small-scale solar photovoltaic (PV) systems in the Town of Berne, subject to reasonable conditions that will protect the public health, safety and welfare, and reduce potential impacts to adjoining properties, and to be in accordance with the adopted Town of Berne Comprehensive Plan.
As used in this article, the terms shall have the following meanings:
BUILDING-INTEGRATED SOLAR PV SYSTEM A solar PV system that is designed and constructed as an integral part of a principal or accessory building. Components of a building-integrated system are designed to replace or substitute for architectural or structural elements of a building and generally complement, blend with or form part of a building's architectural appearance. Such components will generally maintain a uniform plane with, and/or form a part of, the walls, window openings, roofing and/or other building elements into which they are integrated. Such a system is used in lieu of a separate solar PV system where components of the system are designed and attached to a building independent of building architecture. A building-integrated system may occur within vertical facades, replacing view glass, spandrel glass or other facade material; within transparent skylight systems, within roofing systems, replacing traditional roofing materials; or within other building envelope systems.
DECOMMISSIONING The process of making a solar PV system inoperable, removal and proper disposal of all components, and remediating either the land upon which it was sited, and/or the building on or in which it was installed.
GROUND-MOUNTED SOLAR PV SYSTEM A solar PV system, including its specialized solar racking or other mounting system, which is installed on the ground and not attached to any other structure.
KILOWATT (kW) A unit of electrical power equal to 1,000 watts, which constitutes the basic unit of electrical demand. A watt is a metric measurement of power (not energy) and is the rate (not the duration) at which electricity is used; 1,000 kW is equal to one megawatt (MW).
KILOWATT HOUR (kWh) A unit of energy equivalent to one kilowatt of power generated or expended for one hour of time.
LOT COVERAGE Includes the area covered by a solar panel or array as measured on a horizontal plane projected from the perimeter of said panel or array vertically to the ground. For panels or arrays where the tilt angle is adjusted by week, month, season or other time period, lot coverage shall be determined by the tilt angle producing the greatest lot coverage.
NET METER A meter used to measure the flow of electricity from the solar PV system to the electric utility grid for the purposes of net metering.
REMOTE NET METERING An arrangement with the electric utility that allows the kilowatt hours (kWh) generated from a solar PV system located at a specific site to be credited towards kWh of consumption at a different location.
SOLAR ARRAY Any number of solar PV panels that are electrically connected together.
SOLAR PANEL A large, flat piece of equipment containing PV cells that use the sun's light to create electricity. Also known as a "solar module."
SOLAR PV SYSTEM A solar energy collection system consisting of solar photovoltaic cells, panels and/or arrays, and solar-related equipment, which rely upon solar radiation as an energy source for storage and distribution of electrical energy. The solar PV cells, panels and/or arrays may be roof-mounted, ground-mounted or building-integrated.
SOLAR PV SYSTEM, SMALL-SCALE A solar PV system for residential, business, or farm use that has the capacity to generate no more than 110% of the electricity consumed over the previous twelve-month period by land use(s) existing on the lot where the system is located or on multiple lots in cases where remote net metering is allowed. For new construction that does not have a twelve-month log of electricity use, a projection of electricity use over the first 12 months shall be used. For the purposes of this article, all small-scale solar PV systems shall be considered an accessory use.
The attached Solar Use Schedule is hereby adopted and declared to be part of this article. All solar PV systems shall be permitted in accordance with the Solar Use Schedule.
Any small-scale solar PV system which has been abandoned must be removed. The anticipated useful life of such systems as well as the volatility of the recently emerging solar industry where multiple solar companies have filed for bankruptcy, closed or been acquired creates an environment for systems to be abandoned, thereby creating a negative visual and potential health impact on the Town. Abandoned PV systems may become unsafe by reason of their energy-producing capabilities and heavy metal and other toxic material components, and serve as an unattractive nuisance.
A. Abandonment. A solar PV system shall be deemed abandoned if the system fails to generate and transmit electricity at a rate of more than 10% of its rated capacity over a continuous period of one year. If the Code Enforcement Officer receives a complaint of suspected abandonment, or requests access to inspect a solar PV system to assess whether it is functioning as designed, the property owner shall allow access to the property and system for testing. The Code Enforcement Officer may require the owner to produce proof of solar PV system functionality via reports from National Grid, NYSERDA, or other means.
B. Removal required. A solar PV system which has been abandoned shall be decommissioned and removed. The solar PV system owner and/or owner of the land upon which the system is located shall be held responsible to physically remove all components of the system within one year of abandonment.
C. Permit required. No solar PV system shall be decommissioned or removed except by first obtaining a Town of Berne small-scale solar PV system decommissioning and removal permit.
D. Decommissioning and removal.
(1) Decommissioning and removal of a solar PV system shall consist of:
(a) Complete removal of all above-ground and below-ground equipment, including all solar PV modules, mounts, and other associated equipment.
(b) Disposal of all solid and hazardous waste in accordance with local, state and federal waste disposal regulations.
(c) Restoration of the ground surface and soil.
(d) Stabilization and revegetation of the site with native seed mixes, and/or non-GMO plant species (excluding invasive species) to minimize erosion.
(2) Upon petition to the Planning Board, the Board may permit the system owner and/or landowner to leave certain underground or aboveground improvements in place, provided the owner can show that such improvements are part of a plan to redevelop the site, are not detrimental to such redevelopment and do not adversely affect community character or the environment.
Any violation if this article shall be subject to the same civil and criminal penalties provided for in the zoning regulations of the Town of Berne.
[Adopted 5-11-2022 by L.L. No. 3-2022]
This article shall be known as the "Solar Energy Facilities Local Law of the Town of Berne, New York."
This article is adopted under Article IX of the New York State Constitution, New York Municipal Home Rule Law § 10, New York Statute of Local Governments § 10, and New York Town Law §§ 261 through 263, which authorize adoption of land use regulations 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.
The purpose of this article is to plan for well-sited solar energy generating systems and equipment, and to protect and promote the health, safety, and welfare of the community in accordance with the following objectives:
A. Allowing Town of Berne residents, landowners, farms, and government to take advantage of solar energy resources in a way that is consistent with the nature and character of the Town in accordance with the Town of Berne Comprehensive Plan.
B. To further state and local renewable energy goals and combat climate change.
C. To protect the property values of those properties neighboring and within the viewshed of certain solar energy facilities.
D. To take advantage of a safe, abundant, renewable and nonpolluting energy source.
The Town Board of the Town of Berne hereby finds and declares that:
A. Regulation of the siting and installation of solar facilities is necessary for protecting the health, safety, and welfare of neighboring property owners and the general public.
B. Solar energy is considered a renewable energy resource which may have significant impacts to be considered, including glint and glare, erosion, loss of land suitable for growing crops and trees for forestry, aesthetic impacts, and property values.
As used in this article, the following terms shall have the meanings indicated:
APPLICANT The individual/individuals or entity/entities that apply for any state or local government permit or permission for the installation of an industrial-scale solar energy facility.
BUILDING-INTEGRATED SOLAR ENERGY SYSTEM 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.
dB(A) The A-weighted sound pressure level in decibels. A measure of overall sound pressure level designed to reflect the response of the human ear, which does not respond equally to all frequencies. It is used to describe sound in a manner representative of the human ear's response. As used in this article, "dB(A)" means "L(A)eq" unless specified otherwise.
dB(C) The C-weighted sound pressure level in decibels; similar in concept to the A-weighted sound level dB(A), but C-weighting emphasizes sound frequencies between 20 and 200 Hz and does not deemphasize the frequencies below 200 Hz as A-weighting does. As used in this article, "dB(C)" means "LEQ" unless specified otherwise.
DECIBEL (dB) A dimensionless unit describing the amplitude of sound and denoting the ratio between two quantities that are proportional to power, energy, or intensity. One of these quantities is equal to 20 times the logarithm to the base 10 of the ratio of the measured pressure to the reference pressure, which is 20 micropascals.
DECOMMISSIONING The process of making a solar facility completely inoperable, the removal and proper disposal of all components, and the remediation of the land upon which it was sited.
FARMLAND OF STATEWIDE IMPORTANCE Land designated as "farmland of statewide importance" in the U.S. Department of Agriculture Natural Resources Conservation Service (NRCS)'s Soil Survey Geographic (SSURGO) Database on Web Soil Survey that is of state-wide importance for the production of food, feed, fiber, forage, and oilseed crops as determined by the appropriate state agency or agencies.
GLARE The effect produced by light reflecting off a solar panel with an intensity sufficient to cause annoyance, discomfort, or loss in visual performance and visibility, sustained over a period of time.
GLINT A momentary reflection of light from a solar panel with an intensity sufficient to cause annoyance, discomfort, or loss in visual performance and visibility.
GROUND-MOUNTED SOLAR ENERGY SYSTEM A solar energy system that is anchored to the ground via a pole or other mounting system, detached from any other structure that generates electricity for on-site or off-site consumption.
NATIVE PERENNIAL VEGETATION Native wildflowers 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.
POLLINATOR Bees, birds, bats, and other insects or wildlife that pollinate flowering plants, and includes both wild and managed insects.
PRIME FARMLAND Land designated as "prime farmland" in the U.S. Department of Agriculture Natural Resources Conservation Service (NRCS)'s Soil Survey Geographic (SSURGO) Database on Web Soil Survey that has the best combination of physical and chemical characteristics for producing food, feed, forage, fiber, and oilseed crops and is also available for these land uses.
PROJECT SITE The physical area needed for a solar energy system that includes any setbacks, buffers, fencing, roads, screening, support facilities, interconnection and solar energy equipment.
ROOF-MOUNTED SOLAR ENERGY SYSTEM A solar energy system located on the roof of any legally permitted building or structure that produces electricity for on-site or off-site consumption.
SOLAR ACCESS The access of a solar energy system to direct sunlight.
SOLAR ENERGY EQUIPMENT Electrical material, hardware, inverters, conduit, storage devices, or other electrical and photovoltaic equipment associated with the production, storage or transmission of electricity produced from solar energy.
SOLAR ENERGY SYSTEM The components 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 energy system as follows:
A. Tier 1 solar energy systems include the following:
(1) Roof-mounted solar energy systems.
(2) Building-integrated solar energy systems.
B. Tier 2 solar energy systems include ground-mounted solar energy systems with a system capacity up to 25 kW AC, and that generate no more than 110% of the electricity consumed on the site over the previous 12 months.
C. Tier 3 solar energy systems are systems that are not included in the list for Tier 1 and Tier 2 solar energy systems.
SOLAR PANEL A photovoltaic device capable of collecting and converting solar energy into electricity. Also known as a "solar module."
STORAGE BATTERY A device that stores energy and makes it available in an electrical form.
All Tier 1 and Tier 2
solar energy systems shall be permitted and conform to Berne Town Code Chapter
157.
Tier 3 solar energy systems are permitted only in the following zoning districts: RAF, MDR, I.
Tier 3 solar energy system special use permits. The review of building and electrical plans for Tier 3 solar energy systems requires specific expertise for those facilities. Accordingly, the permit fees for such facilities shall include:
A. Administrative/application fee. An application fee of $1,000, plus $100 per disturbed acres for the first 10 acres, then $250 per disturbed acre for acres 11 through 20, then $500 per disturbed acres 21 through 30 shall be required as an initial application. Fees may be associated with the periodic renewal or extensions, if any, of an approved application.
B. Consultant fees: all third-party fees, costs and expenses the Town incurs by professional consultant(s) hired to review the plans and inspect the work pursuant to an escrow agreement. The agreement required under this section must be executed and funded before any application is deemed complete. An applicant shall deposit with the Town funds sufficient to reimburse the Town for all reasonable costs of professional services and consultant evaluation and consultation in connection with the review of any application. An initial escrow deposit of $2,500 (the "initial escrow deposit") shall be filed with the application. If at any time during the process the escrow account has a balance of less than $500, the applicant shall immediately, upon notification by the Town, replenish said escrow account so that it has a balance of at least $2,500 Such additional escrow funds shall be deposited with the Town before any further action or consideration is taken on the application. In the event that the amount held in escrow by the Town is more than the amount of the actual invoicing at the conclusion of the project, the remaining balance shall be refunded to the applicant.
C. Decommissioning deposit or financial security. The amount of the security sufficient to ensure the good faith performance of the terms and conditions of the decommissioning plan as determined by the Town Board in accordance with §§
157-26 and
157-27 herein pursuant to a decommissioning escrow agreement. All approvals shall be conditioned on payment of the required decommissioning deposit or financial security.
In addition to all other federal, state and local requirements, Tier 3
solar energy systems are permitted through the issuance of a special use permit by the Zoning Board of Appeals. Applications for Tier 3
solar energy systems shall include the below information and meet the standards in Town of Berne Zoning Code §
190-64 and the following requirements:
A. Zoning district designation and allowable uses for the parcel(s) of land comprising the project site.
B. Property operation and maintenance plan. Such plan shall describe:
(1) Continuing photovoltaic maintenance.
(2) Property upkeep, such as mowing, trimming, and snow removal.
(3) Frequency of solar panel washing, source of water and additives used.
(4) Maintenance of screening and landscaping. This portion shall include a plan to ensure continued growth of trees, shrubs, etc., used for screening purposes and a replacement plan for any that fail to thrive.
C. Erosion and sediment control and stormwater management plans prepared to New York State Department of Environmental Conservation standards, if applicable.
D. Prior to the issuance of the special use permit by the Zoning Board, but not required as part of the application, engineering documents must be signed and sealed by a New York State (NYS) licensed professional engineer.
E. Decommissioning plan and cost estimate. An applicant shall provide a detailed decommissioning plan and cost estimate, prepared by a qualified engineer, in accordance with §§
157-26 and
157-27 and Appendix A.
F. Sound. The equivalent level (LEQ) generated by any part of a Tier 3 solar energy system shall not exceed 25 dB(A) or 43 dB(C) when measured at the nearest lot line. If the A-weighted background sound pressure level, without the Tier 3 solar energy system, is within five dB of 25 dB or exceeds 25 dB, then the A-weighted criterion to be applied to the system shall be the A-weighted background level plus five dB.
G. Lighting. Any outdoor lighting shall be shielded and downcast to minimize the effect on any person, property, structure, road, vehicle, business, leisure activity, agriculture, parkland, sensitive resource, commercial or transportation activity, night sky, or any other entity or activity identified by the Planning Board. Motion-activated or staff-activated security lighting on or around the project site or accessory structure entrance shall not project off the project site and shall only be activated when the fenced perimeter has been entered.
H. Parking. Equipment and vehicles not used in direct support, renovations, addition, or repair of the Tier 3 solar energy system shall not be stored or parked on the site.
I. Access. A locked gate at the intersection of the accessway and a public road shall be required to prevent unauthorized vehicle entry. Such gate shall be located entirely upon the lot and not on a public right-of-way. Adequate emergency access shall be provided for relevant law enforcement and first responder agencies.
J. Fencing. Tier 3 solar energy systems shall be surrounded by fencing sufficient to protect the public and prevent unauthorized access, and high enough to be visible in deep snow cover. Fencing shall have warning signs with the owner's or operator's name and emergency contact information, which shall be placed on any project site access point and on the perimeter fencing as deemed appropriate. All gates shall be self-locking. Fencing shall provide wildlife corridors as appropriate for the project.
K. Screening and visibility. All Tier 3 solar energy systems shall be required to:
(1) Shield views to the greatest extent possible from adjacent properties, nearby roadways, and sensitive viewpoints by careful site selection, using existing topography and retained vegetation, using architectural features, earth berms, landscaping, or other screening methods that will harmonize with the character of the property and surrounding area.
(2) Submit a landscape and screening plan which shall specify the locations, elevations, height, plant species, and/or materials that will comprise the structures, landscaping, and/or grading used to screen the system. Existing vegetation may be used to satisfy all or a portion of the required landscaped screening. The applicant shall develop, implement, and maintain native vegetation to the extent practicable 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.
(3) Submit the following assessments:
(a) A comprehensive computer-modeled glint and glare assessment which shall determine the impact of the proposed project on all roadways and properties which could be affected by glint and/or glare from the project. The study shall be conducted by an independent third party approved by the Town of Berne Zoning Board prior to the study being conducted. The assessment shall consider all times of the day and every day of the year. The assessment shall include projected impacts on all viewers, including property owners, including both developed and undeveloped properties, motorists, aviation personnel, hiking trail travelers, farm equipment operators, and domestic livestock.
(b) A comprehensive computer-modeled viewshed assessment which shall assess the visual impact of the proposed project on all property and roadways within the Town from which the project is visible or is potentially visible, with the following requirements:
[1] The assessment shall include photographs of the proposed site from all said viewshed points.
[2] If photographs are taken during months in which deciduous leaves are intact, the study shall include computer-modeled mock-ups of viewsheds during the winter months.
[3] Viewshed mock-ups shall include comparative views of the project with and without mitigation in place.
[4] If plantings of trees and/or shrubs are included in the mitigation plans, viewshed mock-ups must reflect their height at the time of planting, as well as at five and 10 years' expected growth post planting.
(c) The applicant shall pay for all assessments required in this section.
L. Glare.
(1) All solar panels shall have antireflective coating(s).
(2) Any glare produced shall not impair or make unsafe the use of adjacent or nearby properties and their structures, vehicles on or off the road, air traffic, or uses by other possible impacted entities as determined by the Planning Board.
M. Additional submissions. After determining that the application is complete and where, due to special conditions peculiar to a site, or the size, nature, or complexity of the proposed use or development of land or buildings, the Zoning Board finds that additional information is necessary for proper review of the special use permit or site plan, the Zoning Board may request additional pertinent information. An application shall be deemed withdrawn if the applicant fails to provide such information within 60 days of the request.
Site plan approval by the Planning Board shall be required for all Tier 3 solar energy systems, and applications shall include the below information and meet the following information standards:
A. Property lines and physical features, including roads, for the project site.
B. Proposed changes to the landscape of the site, grading, vegetation clearing and planting, exterior lighting, and screening vegetation or structures.
C. A one- or three-line electrical diagram detailing the solar energy system layout, solar collector installation, associated components, and electrical interconnection methods, with all National Electrical Code compliant disconnects and overcurrent devices.
D. A preliminary equipment specification sheet that documents all proposed solar panels, significant components, mounting systems, and inverters that are to be installed. A final equipment specification sheet shall be submitted prior to the issuance of a building permit.
E. Name, address, and contact information of proposed or potential system installer and the owner and/or operator of the Tier 3 solar energy system. Such information of the final system installer shall be submitted prior to the issuance of a building permit.
F. Name, address, phone number, and signature of the project applicant, as well as all the property owners, demonstrating their consent to the application and the use of the property for the solar energy system.
G. Agricultural resources. For projects located on agricultural lands:
(1) Tier 3 solar energy systems located on prime farmland shall be constructed in accordance with the construction requirements of the New York State Department of Agriculture and Markets.
H. Location. Tier 3 solar energy systems shall not be located in the following areas:
(1) Areas including historic sites, airports, conservation easements, trails, parks and wetlands as identified by the New York State Department of Environmental Conservation or the United States Army Corps of Engineers.
(2) Slopes greater than 15%, unless the applicant can demonstrate through engineering studies and to the satisfaction of the Town Engineer that the proposed development will cause no adverse environmental impact that will not be satisfactorily mitigated.
I. Lot coverage. Lot coverage of the Tier 3
solar energy system, as defined below, shall not exceed 30 acres' maximum lot coverage of the zoning districts permitted in §
157-20. The following components of a Tier 3
solar energy system shall be included in the calculations for lot coverage requirements:
(1) The total number of square feet of solar arrays.
(3) All mechanical equipment of the Tier 3 solar energy system, including but not limited to switchboard, transformers, and buildings housing mechanical equipment, storage areas and accessory buildings, and the vacant areas between solar arrays.
(4) All areas within the required perimeter fence of the SES site covered by paved and unpaved roadways, parking areas, and vehicular paths.
J. Setbacks.
(1) Tier 3 solar energy systems shall comply with the setback requirements in the underlying zoning district or no less than 200 feet on all sides from any adjoining parcel not included in the solar energy system, whichever is greater.
(2) Tier 3 solar energy systems shall be set back no less than 100 feet from wetlands, streams, ponds, lakes and water wells.
(3) Tier 3 SES, including the perimeter fence, shall be set back no less than 400 feet from any adjoining parcel property line in the locations where there is an existing residential structure on the adjoining parcel within 1,000 feet of the proposed SES.
K. Height. Tier 3 solar energy systems shall not exceed a height of 15 feet from the highest natural grade below each solar panel.
L. Grading. Tier 3 solar energy systems shall follow the topography of the land upon which they are installed. Topography shall not be altered by any substantial amount by grading or bringing in fill.
M. Vehicular paths. Vehicular paths within the site shall be designed to minimize the extent of impervious materials, soil compaction and erosion.
N. Electrical transmission lines and cables. Electrical transmission lines and cables shall be buried underground and the erection of new utility poles minimized to the greatest extent possible.
O. Guy wires. Guy wires shall not be used to support any component of any Tier 3 solar energy system.
P. Signage. No signage or graphic content shall be displayed on the Tier 3 solar energy system except the owner's name, equipment specification information, safety information, and twenty-four-hour emergency contact information, and any other information required by law. Said information shall be depicted within an area no more than eight square feet and be located on or next to the main gate of the facility.
Q. Emergency shutoff information. As required by the 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.
R. Tree cutting. Removal of existing trees larger than six inches in diameter shall be minimized to the greatest extent possible.
S. Additional submissions. Where, due to special conditions peculiar to a site or the size, nature, or complexity of the proposed use or development of land or buildings, the Planning Board finds that additional information is necessary for proper review of the site plan, the Board may request additional pertinent information.
All Tier 3 solar energy systems shall:
A. Conform to all federal and state laws and all applicable rules and regulations promulgated by any federal or state agencies having jurisdiction.
B. Comply with all other requirements of the Town of Berne Code and applicable guidelines unless expressly superseded by this article.
C. Be built, operated, and maintained to acceptable industry standards, including the most recent, applicable standards of the Institute of Electric and Electronic Engineers ("IEEE") and the American National Standards Institute ("ANSI").
D. Emergency services.
(1) Project site access shall be maintained, including snow removal at a level acceptable to the local fire department and ambulance provider.
(2) The owner/operator shall provide a copy of the project summary, electrical schematic and site plan to the local fire chief. All means of shutting down the facility shall be clearly marked.
(3) The owner/operator shall cooperate with emergency services in developing an emergency response plan.
(4) The owner/operator shall provide and pay for firefighter response and safety training for a potential fire incident at the Tier 3 solar energy system.
The Town may exercise its right to opt out of the tax exemption provisions of Real Property Tax Law § 487, pursuant to the authority granted by Subdivision 8 of that law. No construction, road work, tree clearing or preparatory work of any kind may commence until the Town Board has either negotiated a PILOT agreement with the owner of the Tier 3 solar energy system or exercised its right to opt out of tax exemption provisions.
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.
All local laws, ordinances, or parts of local laws and ordinances of the Town of Berne that are in conflict with the provisions of this article are hereby suspended to the extent necessary to give this article full force and effect.
This article shall take effect immediately upon filing with the Secretary of State.