[HISTORY: Adopted by the Town Board of the Town of Berne
as indicated in article histories. Amendments noted where applicable.]
[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:
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.
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.
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.
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).
A unit of energy equivalent to one kilowatt of power generated
or expended for one hour of time.
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.
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.
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.
A solar PV system that is attached to the roof of a building.
Any number of solar PV panels that are electrically connected
together.
A large, flat piece of equipment containing PV cells that
use the sun's light to create electricity. Also known as a "solar
module."
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.
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.
A.
This article applies to roof-mounted, building-integrated and ground-mounted
solar PV systems installed and constructed after the effective date
of this article.
B.
This article also applies to any upgrade, modification or structural
change that alters the physical size, electric generation capacity
beyond the limits defined herein, location or placement of an existing
solar PV system.
The attached Solar Use Schedule[1] 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.
[1]
Editor's Note: The Solar Use Schedule is included as an attachment to this chapter.
A.
Permit requirement. No solar PV system shall be constructed, reconstructed,
moved, or have modifications to physical size, location or placement
undertaken in the Town of Berne except by first obtaining a Town of
Berne small-scale solar PV system permit.
C.
Transfer. The transfer of any solar PV system or solar PV system
permit, or sale of the entity owning such facility, shall not eliminate
the liability of an applicant nor of any other party under this article.
A.
All solar PV systems shall be installed by a qualified solar installer,
as determined by the Building and Zoning Department.
B.
All solar energy systems shall be designed, erected, and installed
in accordance with all applicable codes, regulations and standards
set forth in this article and any applicable federal, state, and county
laws.
C.
Building-integrated solar PV systems.
(1)
Building-integrated solar PV systems are permitted to face any rear,
side, and front yard area, or installed as a roofing surface.
(2)
Solar panels installed on the sides of buildings that are not designed
and constructed as an integral part of the building are not considered
building-integrated and are not permitted.
D.
Roof-mounted solar PV systems.
(1)
Roof-mounted solar PV systems are permitted to face any rear, side
and front yard area.
(3)
Solar panels shall be set back no less than three feet from the edge
of the roof to allow for fire access and ventilation. On sloped roofs,
this requirement does not apply along that portion of the bottom edge
located more than three feet from a side edge. In the event New York
State shall adopt regulations that govern the placement of roof-mounted
solar panels for fire prevention purposes, said regulations shall
supersede this setback provision.
E.
Ground-mounted solar PV systems.
(2)
Setbacks. Ground-mounted systems shall be set back no less than 100
feet from property lines.
(3)
Maximum height. The height of ground-mounted systems shall be measured
when the array is at its maximum tilt.
(a)
The height of ground-mounted systems permitted by right shall
not exceed 12 feet.
(4)
Screening. The Planning Board may require ground-mounted systems
to be screened with architectural features, earth berms, trees, bushes
or other methods which will harmonize the proposed structure with
the character of the property and surrounding area and reduce visibility
from the road or neighboring lots.
F.
By-right systems.
(1)
By-right solar PV systems shall not exceed a rated capacity of 25 kW. Proposed systems exceeding a rated capacity of 25 kW shall require a site plan approval pursuant to § 190-58 of the Berne Town Code.
(2)
Maximum capacity on a lot. No system shall be considered for by-right
permitting if the total solar PV capacity on the lot on which it is
to be situated exceeds 25 kW. All roof-mounted, ground-mounted, and
building-integrated systems existing at the time of application, regardless
of when said systems were installed, shall be included in this calculation.
Such systems where the total solar PV capacity exceeds 25kW shall
require a site plan approval. Such systems being proposed for farm
use in a designated NYS Agricultural District shall only require a
modified site plan approval as set forth in this article.
G.
Systems requiring site plan approval.
(1)
Building-integrated and roof-mounted systems in a Historic District shall be subject to Planning Board review pursuant to § 190-21 of the Berne Town Code, and site plan approval.
(2)
Ground-mounted systems in any zoning district designed for a height
greater than 12 feet when oriented at maximum tilt shall require site
plan approval regardless of its location on the lot. No site plan
shall be approved by the Planning Board for construction of a system
greater than 20 feet in height when oriented at maximum tilt.
H.
Systems requiring special use permit.
(1)
The following systems shall require the issuance of a special use permit by the Planning Board pursuant to § 190-64 of the Berne Town Code:
(a)
Ground-mounted systems in the zoning districts designated in
the SUS table.[1]
[1]
Editor's Note: The Solar Use Schedule is included as an attachment to this chapter.
(b)
Roof-mounted systems on a flat roof.
(2)
The Planning Board may require review of the special use permit application
by a qualified engineer in order to evaluate the need for, and the
design of, the solar PV system. The cost of this review will be borne
by the applicant.
I.
Nonconforming solar PV systems. Nonconforming solar PV systems existing
on the effective date of this article may be altered or expanded,
provided such alteration or expansion does not increase the extent
or degree of nonconformity.
J.
Placement on nonconforming buildings. Notwithstanding the area, lot
and bulk requirements of the Berne Town Code, building-mounted and
building-integrated solar PV systems may be installed:
(1)
On the roof of a nonconforming building that exceeds the maximum
height restriction, provided the building-mounted system does not
extend above the peak or highest point of the roof to which it is
mounted.
(2)
On a building that does not meet the minimum setback or yard requirements,
provided there is no increase in the extent or degree of nonconformity
with said requirement.
(3)
On a building that exceeds the maximum lot coverage requirements,
provided there is no increase in the extent or degree of nonconformity
with said requirement.
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.
A.
The Planning Board shall, at the first regularly scheduled meeting
held after submission of the modified site plan application, begin
the review process. Incomplete applications shall be returned to the
applicant, without prejudice, with a letter stating application deficiencies.
No modified site plan application shall be deemed complete until the
application form, fee, and site plan information described in this
section have been accepted by the Planning Board.
B.
Once a complete application has been received, the Planning Board
shall conduct its modified review and render a decision within 45
days unless an extended time frame is mutually agreed upon with the
applicant. If the application is deemed complete, the Planning Board
shall conduct its review and render a decision on the modified site
plan at the first regularly scheduled meeting held after submission
of the modified site plan application to the Planning Board. The Planning
Board may hold a public hearing if deemed necessary. All requirements
of SEQRA, Part 617, shall be met prior to decision.
C.
The Planning Board's action shall be in the form of a resolution
stating whether the modified site plan is approved, disapproved or
approved conditionally with modifications. Any modification required
by the Planning Board shall be considered a condition for issuance
of a building permit. If the modified site plan is disapproved, the
Planning Board's resolution will contain the reasons for such findings.
In such a case, the Planning Board may recommend further study of
the site plan and resubmission to the Planning Board after it has
been revised or redesigned.
(1)
Approval. Upon approval of the modified site plan and payment by
the applicant of all fees due to the Town, the Planning Board shall
endorse its approval on a copy of the site plan and shall, within
five business days of its decision, file with the Town Clerk a copy
of the approved resolution approving the modified site plan with the
Building Inspector. A copy of the written statement of approval shall
be mailed to the applicant. Upon approval of the modified site plan,
the applicant shall be eligible for applying for a building permit
if one is required.
(2)
Approval with modifications. The Planning Board may approve the modified
site plan and require that specific modifications or conditions be
made. A copy of the resolution of approval containing the modifications
required by the Planning Board shall be mailed to the applicant and
filed with the Town Clerk and the Building Inspector. The Building
Inspector shall not issue a building permit until the modified abbreviated
site plan has been reviewed and determined that the plan reflects
modifications as required by the Planning Board.
(3)
Disapproval. The Planning Board shall make a resolution if its decision
is to disapprove the application. The resolution shall set forth the
reasons for the Board's decision not to approve the application. Upon
disapproval of the site plan, the Planning Board shall, within five
business days, file the resolution with the Town Clerk and Building
Inspector. No building permit shall be issued when an abbreviated
site plan has been disapproved.
(4)
Extension of time. The time period in which the Planning Board must
render its decision on the modified site plan may be extended only
upon mutual consent of the applicant and the Planning Board. Failure
of the Planning Board to act within the sixty-two-day time period
specified, or other time frame agreed upon between the applicant and
Board, shall constitute Planning Board approval of the site plan as
submitted or last amended, and shall be deemed automatic approval.
An applicant's failure to follow through within the specified time
period on submitting application requirements shall not be considered
a failure of the Planning Board, and thus shall not be deemed automatic
approval.
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.[1]
[Adopted 5-11-2022 by L.L. No. 3-2022[1]]
[1]
This local law also repealed former Art. II, Industrial-Scale
Solar Energy Facilities, adopted 12-18-2019 by L.L. No. 6-2019.
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:
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.
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 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.
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.
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.
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.
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.
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.
A momentary reflection of light from a solar panel with an
intensity sufficient to cause annoyance, discomfort, or loss in visual
performance and visibility.
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 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.
Bees, birds, bats, and other insects or wildlife that pollinate
flowering plants, and includes both wild and managed insects.
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.
The physical area needed for a solar energy system that includes
any setbacks, buffers, fencing, roads, screening, support facilities,
interconnection and solar energy equipment.
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.
The access of a solar energy system to direct sunlight.
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.
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:
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.
Tier 3 solar energy systems are systems that are not included
in the list for Tier 1 and Tier 2 solar energy systems.
A photovoltaic device capable of collecting and converting
solar energy into electricity. Also known as a "solar module."
A device that stores energy and makes it available in an
electrical form.
A.
The requirements of this article shall apply to all Tier 3 solar
energy systems permitted, installed, or modified in the town of Berne
after the effective date of this article, excluding general maintenance
and repair.
B.
Tier 3 solar energy systems constructed or installed prior to the
effective date of this article shall not be required to meet the requirements
of this article.
C.
Modifications to an existing Tier 3 solar energy system that increase
the solar energy system area by more than 5% of the original area
of the solar energy system (exclusive of moving any fencing) shall
be subject to this article.
D.
All Tier 3 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"), and the Town Code.
All Tier 1 and Tier 2 solar energy systems shall be permitted and conform to Berne Town Code Chapter 157.
A.
A building permit shall be required for installation of all Tier
3 solar energy systems.
B.
Tier 3 solar energy systems are subject to special use permit review
and approval by the Zoning Board of Appeals who shall act as lead
agency under the State Environmental Quality Review Act ("SEQRA")[1] and its implementing regulations. The ZBA may refer the
application to any other advisory board as deemed necessary.
[1]
Editor's Note: See Environmental Conservation Law § 8-0101
et seq.
C.
Tier 3 solar energy systems are subject to site plan approval and/or subdivision approval by the Planning Board in accordance with § 157-24.
D.
In addition to the requirements in this article, applications for
Tier 3 solar energy systems shall conform with and include the information
set forth in the Town of Berne Zoning Code, § 195-58B(1)
through (3).
E.
Reimbursement for review of application for a certificate of environmental
compatibility and public need pursuant to Article 10 of the Public
Service Law. The applicant shall reimburse the Town for any fee or
expense incurred in hiring subject matter experts and attorneys to
review whether a Tier 3 solar energy system proposed for siting pursuant
to Article 10 of the New York Public Service Law complies with this
article's substantive provisions.
F.
Solar access. The approval of a special use permit for a Tier 3 solar
energy system is not intended to confer on the permittee any additional
property rights as against any adjoining or nearby property owners,
such as easements of necessity, etc.
Tier 3 solar energy systems are permitted only in the following
zoning districts: RAF, MDR, I.
A.
A pre-application meeting with the Building Inspector, Zoning Board
Chairperson and Planning Board Chairperson is required for all proposed
Tier 3 solar energy systems. Thereafter, six full-sized hard copies
and one digital of the complete application shall be submitted to
the Building Department. Payment of all application fees shall be
made at the time of submission. A preliminary determination of application
completeness shall be made by the Building Department.
B.
The Zoning Board of Appeals shall, within 60 days of receipt, determine
if all information required hereunder is included in the application.
If the application is deemed incomplete, the applicant shall be provided
with a written statement listing missing data. Upon submission of
a complete application, the Zoning Board shall proceed with its review
and act as lead agency under SEQRA.
C.
The Zoning Board of Appeals shall refer the application to the Planning Board for site plan approval in accordance with the standards set forth in § 157-23 herein. The Planning Board shall act as a SEQRA involved agency. No public hearing is required for site plan approval, and site plan approval requirements under Town of Berne Code § 190-58 shall not apply unless incorporated herein. Within 62 days from the date of referral by the Zoning Board, the Planning Board may approve the site plan conditioned on the Zoning Board granting a special use permit or disapprove the site plan in a written decision setting forth the reasons for disapproval. Failure of the Planning Board to render a decision within the prescribed time limits shall constitute approval by the Planning Board.
D.
After conditional approval of the site plan, the Zoning Board of
Appeals shall hold at least one public hearing on the application.
The public hearing may be combined with public hearings on any environmental
impact statement. The applicant must provide proof that all property
owners within 1,000 feet of the boundary line of the site of the proposed
Tier 3 solar energy system have been given notice of a public hearing
via certified mail at the expense of the applicant.
E.
Notice of the project shall also be given to the Albany County Planning
Board, as required by General Municipal Law § 239-m.
F.
Following receipt of the recommendation of the Albany County Planning
Board (if applicable), the holding of the public hearing(s), and completion
of the SEQRA process, the Zoning Board of Appeals may approve, approve
with conditions, or deny a Tier 3 solar energy system special use
permit application, in accordance with the standards in this article.
Any denial shall be in writing, setting forth competent reasons for
such denial with references to relevant sections of this article.
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.[1]
[1]
Editor's Note: Appendix A is included as an attachment to this chapter.
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.
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.
(2)
Foundation systems.
(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.
A.
Tier 3 solar energy systems that have been abandoned and/or not producing electricity as defined in § 157-28 shall be removed at the owner's and/or operator's expense.
B.
A decommissioning plan and agreement (see Appendix A[1]) signed by the owner and/or operator of the Tier 3 solar
energy system shall be submitted by the applicant, addressing the
following:
(1)
Removal and restoration, including:
(a)
Removal of all infrastructure and accessory structures and/or
equipment such as panels, collectors, support units (including all
underground wiring), mounts, equipment shelters and security barriers
from the property;
(b)
Removal of all above- and below-ground equipment, structures
and foundations;
(c)
Proper disposal of all solid and hazardous waste from the site
in accordance with local and state solid waste disposal regulations;
(d)
Restoration of the surface grade and soil after removal of equipment;
(e)
Revegetation of restored soil areas; and
(f)
Remediation of soil and vegetation shall be conducted to return
the property to either its original state prior to construction or
in a natural condition with any landscaping and grading approved under
the decommissioning plan.
(2)
The cost and time estimates for the above removal and restoration
prepared by a qualified engineer.
[1]
Editor's Note: Appendix A is included as an attachment to this chapter.
A.
Decommissioning fund. The permittee, or successors, shall continuously
maintain a deposit or security with the Town Clerk in an amount sufficient
to pay for the costs and expenses of removal and restoration related
to decommissioning the Tier 3 solar energy system.
B.
The security may be in the form of cash, letter of credit, bond or
another instrument acceptable to the Town's Attorney and the
Town Board and shall remain in full force and effect until all solar
energy system equipment, structures and materials have been properly
removed and site restoration is complete.
C.
The security amount shall be determined by the Town Board in consultation
with an engineer designated by the Town. The amount of the security
shall be 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 restoration of the site subsequent to removal,
including all fees, costs and expenses incurred by the Town to administer
and enforce the decommissioning process. The amount of the bond or
security shall be 120% of the cost of removal of the Tier 3 solar
energy system and restoration of the property with an escalator of
3% annually for the life of the solar energy system.
D.
Such amount shall be reevaluated every five years thereafter and,
if necessary, adjusted to reflect prevailing costs and expenses.
E.
If the amount of the security does not fully cover such fees, costs
and expenses or if the Town cannot recover adequate proceeds of the
security, then the owner and operator of the solar energy system and
the property owner shall be jointly and severally, and corporately
and personally, liable for the costs not recovered. In addition, the
Town may assess such costs against the property, which assessment
shall constitute a lien on the property, and which amount may be collected
in the same manner as real property taxes.
F.
All decommissioning, removal and remediation fund requirements shall
be fully funded before a building permit is issued.
G.
In the event of default upon performance of any conditions in the
decommissioning agreement or decommissioning plan, after proper notice
and expiration of any cure periods, the cash deposit, bond, or security
shall be forfeited to the Town of Berne, 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.
H.
In the event of default or abandonment of the Tier 3 solar energy system, the system shall be decommissioned as set forth in § 157-26 and Appendix A[1] herein.
[1]
Editor's Note: Appendix A is included as an attachment to this chapter.
A.
The special use permit and site plan approval for a Tier 3 solar
energy system shall be valid for a period of 24 months, provided that
a building permit is issued for construction. In the event construction
is not completed in accordance with the final site plan within 24
months after approval, the applicant may, upon approval of the Planning
Board, extend the time to complete construction for an additional
180 days. If the owner and/or operator fails to perform substantial
construction after 30 months, the approvals shall expire, the facility
shall be considered abandoned, and decommissioning of any construction
that has been completed shall commence. Upon completion of construction
and start of electrical generation within the allowable time period,
the special use permit and site plan approval shall become permanent,
subject to permit amendments required as a result of project modifications.
B.
Upon cessation of electricity generation of a Tier 3 solar energy
system on a continuous basis for six months, the owner and/or operator
will notify the Town and implement the decommissioning plan. The decommissioning
plan must be completed within 360 days of notification.
C.
If the owner and/or operator fails to comply with decommissioning
upon any abandonment, the Town Board may, at its discretion, utilize
the bond and/or security for the removal of the Tier 3 solar energy
system and restoration of the site in accordance with the decommissioning
plan.
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.
A.
Staff. The Town Board shall appoint such Town staff or outside consultants
as it sees fit to enforce this article.
B.
Any person owning, controlling or managing any building, structure
or land who shall construct or operate a Tier 3 solar energy system
in violation of this article or in noncompliance with the terms and
conditions of any permit issued pursuant to this article, or any order
of the Code Enforcement Officer, and any person who shall assist in
so doing, shall be guilty of an offense and subject to a fine of not
more than $350 or to imprisonment for a period of not more than six
months. Every such person shall be deemed guilty of a separate offense
for each week such violation shall continue. The Town may institute
a civil proceeding to collect civil penalties in the amount of $350
for each violation, and each week said violation continues shall be
deemed a separate violation.
C.
In case of any violation or threatened violation of any of the provisions
of this article, including the terms and conditions imposed by any
permit issued pursuant to this article, in addition to other remedies
and penalties herein provided, the Town may institute any appropriate
action or proceeding to prevent such unlawful erection, structural
alteration, reconstruction, moving and/or use, and to restrain, correct
or abate such violation to prevent the illegal act.
D.
Any violation of this article shall be subject to the same enforcement
requirements, including the civil and criminal penalties, provided
for in the laws of the State of New York, or in the zoning or land
use regulations of the Town of Berne.
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.
