Town of Binghamton, NY Special Uses

This section is adopted to advance and protect the public health, safety, and welfare of the Town of Binghamton, including:

Taking advantage of a safe, abundant, renewable, and low-carbon-emitting energy resource.

Decreasing the cost of energy to the owners of commercial and residential properties, including single-family houses and farm operations.

Increasing employment and business development in the region by furthering the installation and development of renewable energy systems.

Balancing the need to improve energy sustainability through increased use of renewable energy systems with concerns for preservation of public health, welfare, and safety, as well as environmental quality, visual and aesthetic values, and existing neighborhood social and ecological stability.

Minimizing any adverse impacts on the character of the neighborhoods, property values, scenic, historic, and environmental resources of the Town.

ACCESSORY FACILITIES or EQUIPMENT

These wind energy regulations are intended to supplement existing zoning ordinances and land use practices, and ensure these systems are appropriately designed, sited and installed. However, to the extent that a provision of this section conflicts with any other local law or zoning regulation of the Town, the provision of this section shall apply.

Definitions. As used in this section, the following terms shall have the meanings indicated:

Any structure other than a wind turbine, including substations, meteorological towers, overhead and underground electrical lines, guy wires, access roads, operations and maintenance buildings or other facilities related to the use and purpose of deriving energy from such tower.

APPLICANT

Any individual, corporation, municipal corporation, municipal corporation-private entity cooperation, estate, trust-partnership, joint-stock company, association of two or more persons, limited-liability company or other entity submitting an application to the Town of Binghamton for a special permit for a wind energy conversion system ("WECS"), and its successors and assignees.

APPLICATION

The form approved by the Board, together with all necessary and appropriate documentation that an applicant submits in order to receive a special use permit for a WECS.

BOARD

The Planning Board of the Town of Binghamton, as stated, reviews the special use permit application and makes recommendations to the Town Board, which will grant or deny the special use permit.

COMPLETION/FULLY COMPLETED

The WECS project is fully complete when the turbine is running at its stated capacity and feeding metered electricity to the grid, all construction tools and equipment are removed, and all site restoration is finished, all required fencing is complete, site security and signage is in place, and screening vegetation and reforestation (if required) is planted to the satisfaction of the Code Enforcement Officer.

DECOMMISSIONING PLAN

A plan that includes all of the elements set forth in Subsection F of this section.

NACELLE

The portion of the wind turbine that connects the rotor to the support tower, and houses the generator, gearbox, drive train, and braking system.

OPEN SPACE

Any open piece of land that is undeveloped (has no buildings or other built structures) and is accessible to the public. Open space can include parks, community gardens, and cemeteries, and may be private or public.

PARTICIPATING PROPERTY

A parcel of land which is subject to any lease, good neighbor agreement or other contract with the applicant which authorizes WECS development by the applicant. Parcels of land not subject to any type of agreement with the applicant are considered nonparticipating properties.

RIGHT-OF-WAY

A strip of land acquired by reservation, dedication, forced dedication, prescription, or condemnation and intended to be occupied by a road, crosswalk, railroad, electric transmission lines, oil or gas pipeline, water line, sanitary storm sewer, and other similar uses.

SHADOW FLICKER

The effect of the sun (low on the horizon) shining through the rotating blades of a wind turbine, casting a moving shadow. It will be perceived as a "flicker" due to the rotating blades repeatedly casting the shadow. Although in many cases shadow flicker occurs only a few hours in a year, it can potentially create a nuisance for homeowners in close proximity to turbines. Computer models can accurately predict when, where, and to what degree this problem will occur, so wind project developers can mitigate this impact during the site selection process. In addition, many local ordinances incorporate language addressing shadow flicker to minimize any potential impact on neighbors.

SITE

The parcel(s) of land where a WECS, wind measurement tower or meteorological tower is to be placed. The site can be publicly or privately owned by an individual or a group of individuals controlling single or adjacent properties. Where multiple lots are in joint ownership, the combined lots shall be considered as one for purposes of applying setback requirements. Any property which has a WECS, wind measurement tower or meteorological tower or has entered into an agreement for such, or a setback agreement, shall not be considered off-site.

SPECIAL USE PERMIT

The official document or permit by which an applicant is allowed to construct and use a small-scale or large-scale WECS as reviewed by the Planning Board and granted or denied by the Town Board.

TOTAL HEIGHT

The height of the tower and the furthest vertical extension of the WECS or wind measurement tower/MET tower from ground elevation.

TOWER FACILITY

Site where one or more wind-energy-deriving tower(s) or wind turbines will be located, including all accessory facilities or equipment, on site access road.

TOWN

The Town of Binghamton, New York.

WIND ENERGY CONVERSION SYSTEM (WECS)

Any mechanism including a wind turbine designed for the purpose of converting wind energy into electrical energy and all accessory facilities related thereto. A WECS may be:

LARGE SCALEA WECS that primarily produces energy for off-site sale or consumption, or any WECS that has a capacity of 200 kilowatts or more.

WIND MEASUREMENT TOWER or METEOROLOGICAL TOWER (MET TOWER)

SMALL SCALEA WECS that has a capacity of less than 200 kilowatts and is incidental and subordinate to another use on the same parcel and which primarily produces energy for on-site consumption; provided, however, that if such parcel uses the WECS for net metering with a utility company, such WECS may be considered noncommercial unless net revenue is produced.

A tower used solely for the measure of meteorological data such as temperature, wind speed, and wind direction.

WIND-ENERGY-DERIVING TOWER or WIND TURBINE

Any tower, pole, or other structure, whether attached to a building, guyed, or freestanding, designed to be used for the support of a rotor that consists of blades and hub, as well as a nacelle and generator for producing electricity.

Authority. No WECS shall be constructed in the Town except in accordance with this section unless a building permit, site plan approval and a special permit are received. Notwithstanding anything to the contrary, the Planning Board is hereby authorized to approve, approve with conditions, or disapprove WECS special use permit applications in accordance with this section.

Small-scale wind energy conversion systems (WECS). A small-scale WECS may be permitted as a customary accessory use in all zoning districts, and without the necessity of site plan review or special permit, subject to Town Code and Uniform Code requirements applicable to accessory uses, to the extent not inconsistent with this section. In addition to any other building permit requirements or requirements applicable to accessory uses, the following shall apply to small-scale WECS:

If any license, approval, permit, certification, or any type of registration or similar type of endorsement is required from any other agency, receipt of such agency approvals shall be a pre-condition to the building permit.

All small-scale WECS shall comply with the following minimum setback requirements. If more than one setback applies, the most restrictive setback shall control:

Three times the total height from all adjacent off-site property lines, rights-of-way, easements, public ways, power lines (not to include individual residential feed lines), gas wells and state lands;

Three times the total height from all permanent structures located on-site or off-site;

One thousand five hundred feet or three times the total height, whichever is greater, from all schools, hospitals, places of worship, places of public assembly and residential structures located off-site.

The maximum height shall be no taller than 120 feet in height from the base of the WECS to the highest vertical blade tip.

The minimum distance between the ground and any part of the rotor blade shall be no less than 15 feet.

(5)

An emergency telephone number shall be provided to the Town Code Enforcement Officer.

(6)

All guy wires or cables shall be marked with high-visibility orange or yellow sleeves from the ground to a point at least 12 feet above the ground and fenced. Setbacks for any anchor point for guy wires or cables shall be a distance of 30 feet from any adjacent property lines.

(7)

WECS shall be secured so as to prevent access by unauthorized individuals. Fencing is required around the anchor(s) and tower mount(s).

(8)

The color of the WECS shall be a single, nonreflective matte-finished color or other industry standard color which minimizes negative visual impact.

(9)

Wind-energy-deriving towers shall not be artificially lighted except to assure human safety as required by the Federal Aviation Administration (FAA). Use of nighttime and overcast daytime condition lighting shall satisfy FAA lighting requirements in effect at the time of the project and shall be subject to Planning Board on-site review.

(10)

No commercial communication antennas may be affixed to or made part of any small-scale WECS. No advertising shall be depicted on any part of any small-scale WECS.

(11)

The Town Code Department will have access to the site for inspection and compliance with Town Code purposes.

Large-scale wind energy conversion systems (WECS).

A large-scale WECS is permitted where indicated in the Town's zoning regulations but shall be subject to receipt of site plan approval and a special use permit in accordance with this section. No large-scale WECS shall be permitted in residential-zoned districts without a use variance being granted by the Zoning Board of Appeals.

Special use permit required.

All applicants for a special use permit for a large-scale WECS shall, in addition to the other requirements in the Town Code, comply with the procedures set forth in this section. The Planning Board is the officially designated agency or body of the community that is authorized to review, analyze, evaluate, and make recommendations to the Town Board, which will grant or deny special use permits for large-scale WECS and facilities (except where the application is subject entirely to § 94C of the Public Service Law).

An application for a special use permit for a large-scale WECS shall be signed on behalf of the applicant by the person preparing the same and with knowledge of the contents and representations made therein and attesting to the truth and completeness of the information. The applicant shall provide proof that the landowner, if different than the applicant, consents to the filing of the application, or the applicant shall provide a copy of any agreement between the applicant and the landowner authorizing the applicant to use the landowner's property as proposed in the application. At the discretion of the Town Board, any false or misleading statement in the application may subject the applicant to denial of the application without further consideration or opportunity for correction.

Application permit fees are as follows: building permit: $100 per leased/owned acre; Planning Board review: $100 per leased/owned acre; SWPPP permit: $500 per leased/owned acre; erosion inspection: costs to the Town; Zoning Board review: $100 per leased/owned acre; and the owner/developer/lessee shall pay an annual fee of $1,000, or such other amount as the Town Board may, from time to time, determine by resolution to cover the cost of processing and reviewing the annual inspection report and for other such similar administration, inspections and enforcement. The applicant shall be responsible for all fees and costs incurred by the Town in review and approval or denial of the application.

Applications not meeting the requirements stated herein or which are otherwise incomplete may be rejected by the Planning Board and/or Town Board.

Completed applications for siting large-scale WECS shall be submitted to the Town Code Officer at least 10 days prior to the regular meeting of the Planning Board. Applications shall not be deemed "complete" until all requirements herein have been satisfied and a SEQR decision has been issued or a draft EIS has been accepted and is satisfactory. The applicant shall attend any Planning Board and/or Town Board meeting where it wishes the application to be considered.

The decision of the Town Board on the application shall be filed in the office of the Town Clerk and a copy thereof mailed to the applicant.

Special use permit requirements. A plan for the proposed development of a large-scale WECS shall be submitted with the application, and such plan shall show and include:

Name and address of the applicant, name of project, boundary lines of the parcel that the project will be located on, a location map showing the proposed site's location, date, North arrow, and scale of the plan.

Application permit fees as follows: Building permit: $100 per leased/owned acre; Planning Board review: $100 per leased/owned acre; SWPPP permit: $500 per leased/owned acre; erosion inspection: costs to the Town; Zoning Board review: $100 per leased/owned acre; and the owner/developer/lessee shall pay an annual fee of $1,000, or such other amount as the Town Board may, from time to time, determine by resolution to cover the cost of processing and reviewing the annual inspection report and for other such similar administration, inspections and enforcement.

Name and address of all owners of record of abutting parcels and those within 1,500 feet of the property lines of the parcel where development is proposed.

A description of the project, including the number and maximum rated capacity of each WECS.

A set of preliminary plans prepared by a licensed surveyor and professional engineer, drawn in sufficient detail to clearly describe the following:

Physical dimensions of the site and property lines, easements and rights-of-way located within the site boundaries;

Existing and proposed topography of the site at five-foot contour intervals;

Location, approximate dimensions and types of existing structures and uses on site, public roads and adjoining parcels within 2,000 feet of any proposed WECS;

Location of all proposed facilities, including WECS, guy wires, access roads, electrical lines, substations, other utility systems, storage or maintenance units, other accessory facilities and fencing;

Location of all aboveground and below-ground utility lines on the site, and all related transformers, power lines, interconnection points with transmission lines, and other ancillary facilities or structures;

To demonstrate compliance with the setback requirements of this section, circles drawn around each proposed WECS location equal to:

Three times the total height.

One thousand five hundred feet or three times the total height, whichever is greater.

Elevation drawing showing each WECS height and design, including a cross-section of the structure and components of the nacelle; each wind turbine's compliance with applicable structural standards; and the WECS' nameplate capacity. A copy of all manufacturer's specifications for the WECS to be installed shall be included;

A landscape plan showing all existing natural land features, trees, forest cover and all proposed changes to these features, including size and type of plant material and erosion control measures;

[9]

A lighting plan showing any FAA-required lighting and other proposed lighting. The application should include a copy of the determination by the FAA to establish required markings and/or lights for the structure, but if such determination is not available at the time of the application, the application shall so state and such determination shall be submitted prior to final approval;

[10]

Study of the ambient daytime and nighttime noise levels.

Documentation of the proposed intent as well as a justification for the height of any wind-energy-deriving tower and justification for any clearing required.

A complaint resolution plan for the applicant to address and resolve complaints regarding the WECS from local residents. The plan may utilize an independent mediator or arbitrator and shall include a time limit for acting on a complaint. The applicant shall make every reasonable effort to resolve any complaint within a reasonable period of time.

(h)

Decommissioning plan as described in Subsection F of this section.

(i)

Completed State Environmental Quality Review Act (SEQRA)[1] Full Environmental Assessment Form (FEAF) and Broome County General Municipal Law § 239 referral form, or reference to Public Service Law Article 10 for projects over 25 MW.

Editor's Note: See Environmental Conservation Law § 8-0101 et seq.

(j)

If a positive declaration of environmental significance is determined by the SEQRA lead agency, the following information shall be included in the draft environmental impact statement (DEIS) prepared for a WECS or tower facility. Otherwise, the following information shall be submitted to the Board for its use in reviewing the application:

Surrounding topography in relation to the capabilities for generation of electricity by wind.

A plan detailing proposed haul routes to be used in delivery of project components, equipment and building materials, and those to be used to provide access to the site during and after construction. Such plan shall also describe anticipated improvements to existing state, county or Town roads, bridges or other infrastructure within the public right-of-way or located on land controlled by the Town of Binghamton needed for construction, maintenance and decommissioning of the WECS or tower facility.

Highway use permit subject to the provisions of the Highway Preservation Act, Local Law No. 171 and all other highway use permit regulations in the county or New York State.

Soil logs, soil profile analyses and stormwater runoff calculations for the area(s) being disturbed and stormwater pollution prevention plan prepared and certified by a professional engineer in accordance with the NYS DEC rules and regulations in effect at the time the project is approved.

A shadow flicker study, identifying locations where shadow flicker may be caused by the WECS and the expected durations of the flicker at these locations. The study shall identify areas where shadow flicker may interfere with residences and describe measures that will be taken to eliminate or mitigate impacts of the flicker. Adequate mitigation measures include, but are not limited to, temporary turbine shutdowns during periods that produce flicker, and shadow flicker for nonparticipating residences that submit complaints for exposures that exceed the annual limit as described in Subsection E(4)(a)[6] of this section.

A visual impact study, which shall include a computerized photographic simulation demonstrating any visual impacts from strategic vantage points. Color photographs assessing the visibility from key viewpoints, existing tree lines, and proposed elevations shall also be submitted. All photographs shall be digitally enhanced to simulate the appearance of the as-built aboveground site facilities as they would appear from distances within a ten-mile radius of such wind turbines. Photographs from specific locations may be required by the Board, and all photographs shall be no smaller than five inches by seven inches and be provided in color, hard copy format and digitally. The visual analysis shall also indicate the color treatment of the WECS and related components, and any visual screening incorporated into the project that is intended to lessen the WECS's visual prominence.

A noise analysis prepared by a qualified acoustical consultant documenting the noise levels associated with each proposed WECS in accordance with Subsection E(4)(a)[5] of this section. The study shall document noise levels at the property line of any non-participating property. The noise analysis shall provide preexisting ambient noise levels and include low-frequency noise.

A report detailing the potential impacts of ice-throw and blade-throw on structures and property within the Town, including proposed safety measures to mitigate such impacts.

[9]

A structural safety report, including proposed safety measures to mitigate wind-energy-deriving tower structural failure.

[10]

A property value analysis regarding the potential impact of values of nonparticipating properties in the Town of Binghamton. The analysis should include a proposed means of protecting property owners from the potential decrease in property values caused by the establishment and operation of the proposed WECS or tower facility.

[11]

A fire protection and emergency response plan created in consultation with the fire companies having jurisdiction over the proposed site.

[12]

An assessment of potential electromagnetic interference with microwave, radio, television, personal, official or emergency communication systems and other wireless communication.

[13]

A report including a description of the geologic and/or geotechnical conditions of the site, a narrative of soil identification and classification throughout the site, and engineering recommendations based on borings and laboratory testing pertinent to the design of tower foundations and other project components, and a stormwater pollution prevention plan by a professional engineer in accordance with the NYS DEC rules and regulations in effect at the time the project is approved may be required.

[14]

Plans to prevent the pollution of surface water or groundwater, erosion of soil both during and after construction, excessive runoff, and flooding of other properties, as applicable. The plans should include pre-construction and post-construction drainage calculations for the site completed by a certified engineer. The plans must show no increase in runoff from the site, or how such runoff shall be sufficiently mitigated and may require a stormwater pollution prevention plan by a professional engineer in accordance with the NYS DEC rules and regulations in effect at the time the project is approved.

[15]

Proposed mitigation measures for each and every anticipated adverse visual/aesthetic, environmental, or health/safety impacts of the WECS.

(k)

A description of the general geographic areas that would be acceptable for wind projects within the Town of Binghamton; furthermore, demonstration that the proposed site is the most appropriate site within the immediate area for the location of the WECS.

(l)

If the WECS is a "major electric generating facility" subject to Article 94C of the Public Services Law and its accompanying regulations, the applicant shall provide all documents and information required to be provided to the Town, as well as any document or information provided to the Public Service Commission or other public agency which is specifically requested by the Town.

(m)

Insurance certificates in compliance with Subsection E(11)(b) of this section.

(n)

If the property of the proposed project is to be leased, legal consent between all parties, including copies of lease documents, specifying the use(s) of the land for the duration of the project, including lease agreements, easements and other agreements, shall be submitted.

(o)

Demonstrated compliance with, or inapplicability of, any Town road maintenance or road use local laws, which may include, but shall not be limited to, a proposed road use agreement.

(p)

If any license, approval, permit, certification, or any type of registration or similar type of endorsement is required from any other agency, the applicant shall notify the Planning Board of such requirement and the Planning Board shall coordinate the review as deemed appropriate. A copy of any such license, approval, permit, certificate or registration shall be provided to the Town Board prior to approval of any special use permit.

(q)

The Town Code Department shall be granted access to the project site prior to construction, during construction, during operation and during and following any abandonment and decommissioning of the project.

Standards for design. Every large-scale WECS shall be subject to the following requirements:

Location. Applicants for a WECS special use permit shall locate, erect, and site wind-energy-deriving towers in accordance with the following requirements:

WECS shall be located in a manner that produces no additional negative impacts on existing microwave communications links. No WECS shall be installed in any location along the major axis of an existing microwave communications link where, when considering any mitigation strategies of applicant, its operation is still likely to produce significant electromagnetic interference in the links operation.

WECS shall be located in a manner that minimizes significant negative impacts on existing fixed broadcast, or reception antennas (including residential reception antennas) for radio (including amateur short-wave radio), television, or wireless phone or other personal communications systems. No WECS shall be installed in any location where, when considering any mitigation strategies of the applicant, its proximity with existing fixed broadcast, or reception antennas (including residential reception antennas) for radio (including amateur short-wave radio), television, or wireless phone or other personal communications systems is likely to produce electromagnetic interference with signal transmission or reception.

WECS shall be located in a manner that minimizes negative impacts on bird and bat species. No WECS shall be installed in any location where, when considering any mitigation strategies of the applicant, there are still likely to be negative impacts on birds or bats. The applicant shall present and implement a plan for such mitigation, which plan shall be approved by all relevant state and federal regulatory agencies, with consideration of input from local agencies with relevant expertise.

All large-scale WECS shall comply with the following minimum setback requirements. If more than one setback applies, the most restrictive setback shall control:

Three times the total height from all adjacent nonparticipating property lines, rights-of-way, easements, public ways, power lines (not to include individual residential feed lines), gas wells and state lands;

Three times the total height from all permanent structures located on participating and nonparticipating properties;

The level of noise produced during WECS operation shall not:

Exceed 45 (dBA) L_eq (eight-hour) measured from the property line of any nonparticipating property.

Exceed 40 (dBA) L (night-outside), annual equivalent continuous average nighttime sound level from the WECS or tower facility outside, measured from the property line of any nonparticipating property.

Produce any audible prominent tones, as defined under ANSI S12.9, Part 4-2005, Annex C, at the property line of any nonparticipating property.

Produce human-perceptible vibrations inside any residential structure located on a nonparticipating property that exceed the limits for residential use recommended in ANSI Standard S2.71-1983 (August 6, 2012), "Guide of evaluation of human exposure to vibration in buildings."

Exceed a maximum noise limit of 45 dBA L_eq at the full octave frequency of 16, 31.5 and 63 Hertz outside any existing nonparticipating residence in accordance with Annex D of ANSI Standard S12.9, 2005/Part 4, Section D.2(1) (Sounds with strong low-frequency content).

Exceed a limit of 45 dBA L_eq (one-hour) at the property line of any nonparticipating property from any collector substation equipment.

Shadow flicker caused by WECS operations shall be limited to a maximum of 30 minutes per day, not to exceed 30 hours annually at the property line of any nonparticipating property, subject to verification using shadow detection and operational controls at appropriate WECS.

With respect to the potential negative impacts described in this Subsection E, the applicant shall present and implement a plan for mitigation subject to approval by the Planning Board.

The applicant, at the applicant's sole expense, must have noise testing done every six months by a qualified acoustical consultant over the life span of the WECS and provide the results of all such noise testing to the Town Code Officer and Town Board.

(5)

Construction, notice and safety considerations.

An emergency telephone number shall be provided to the Town Code Officer, Office of Emergency Services, posted at the operations and maintenance building and on the project website, if any, so that the appropriate people may be contacted should any WECS need immediate attention.

The applicant's complaint resolution plan to address and resolve complaints regarding any WECS shall be provided to the Board and Code Officer, posted on the project website, if any, and provided to any resident upon request.

A caution sign shall be placed at the primary entrance of each parcel where a WECS is located. Signs shall be four feet to six feet high, i.e., at eye level. Said signs shall be a minimum of one foot square and no larger than two square feet in size and shall have the words "CAUTION: WIND TURBINES IN USE" printed thereon. In addition, the owner's and operator's name, address, and telephone number shall be printed thereon.

The WECS and site shall be sufficiently secure so as to prevent access by unauthorized individuals.

Each WECS shall conform to the following specifications:

WECS shall use tubular towers.

The color of all WECS shall be a nonreflective matte-finished color or other industry standard color(s) which minimizes negative visual impact.

Each wind turbine within a WECS shall be generally uniform in size and geometry.

All WECS shall be equipped with manual and automatic overspeed controls, whose design and fabrication, together with the design and fabrication of its rotors, shall conform to industry standard engineering practices as certified by its manufacturer. Such controls shall be designed to prevent uncontrolled rotation, overspeeding, and excessive pressure on the tower structure, rotor blades, and turbine components.

(h)

All WECS shall be located in a manner that minimizes the risk to public health and safety posed by ice-throw and blade-throw. All WECS shall be equipped with a nacelle-mounted ice sensor, a shaft vibration sensor or other available technology capable of directly or indirectly detecting blade ice formation. Such sensor(s) or technology shall cause the automatic shutdown of a WECS when blade ice buildup is detected at levels that pose a substantial risk to public health and safety.

(i)

No chemical deicing agent of any kind shall be applied to any part of a WECS for the purpose of reducing blade ice buildup or for any other reason.

(j)

No commercial communication antennas may be affixed to or made part of any large-scale WECS. No advertising shall be depicted on any part of any large-scale WECS.

(6)

Lighting. WECS and MET towers shall not be artificially lighted except to assure human safety as required by the Federal Aviation Administration (FAA). Use of nighttime and overcast daytime condition lighting to satisfy FAA lighting requirements shall be reviewed with specific respect to Subsection E(3)(e)[9] of this section.

(7)

Utility service. All collection lines from the wind generation electricity generation facilities to on-site collection substations shall be underground to the maximum extent practicable given topography and other constraints.

(8)

Height.

The minimum distance between the ground and any part of the rotor blade shall be no less than 30 feet.

Any WECS (large-scale) shall be no taller than 390 feet in height from the base of the WECS to the highest vertical blade tip.

Any MET tower shall be no taller than 190 feet.

(9)

Environmental impact.

Visual impact. Each of the WECS shall be of substantially the same design, construction materials, finishing and color treatment as described in Subsection D(8) above. Visual screening intended to lessen the WECS visual prominence shall be incorporated to the maximum extent possible.

Access roads. Whenever possible, existing roadways shall be used for access to the WECS site. In the case of constructing roadways, they shall be constructed in a manner so that they are not conspicuous to the surrounding environment and mitigate any increased runoff and meet the requirements of the New York State Building Code. A stormwater pollution prevention plan by a professional engineer in accordance with the NYS DEC rules and regulations in effect at the time the project is approved may be required.

Accessory structures/facilities. Transmission facilities or buildings shall be located behind ridges or vegetation, where feasible, to screen from visibility.

Wildlife. All potential impacts to local wildlife, especially threatened/endangered species, resulting from the design and siting of all WECS must be reviewed and approved by all relevant state and federal regulatory agencies, with consideration of input from local agencies with relevant expertise. The applicant must obtain all necessary state and federal wildlife permissions and permits, including, but not limited to, incidental take permits, prior to the commencement of construction of the WECS or tower facility.

Open space. All WECS shall be designed to minimize the impacts of land clearing and the loss of open space areas. Land protected by conservation easements shall be avoided.

Deforestation: deforestation/clear-cutting. Any deforestation or clear-cutting (removal of all or the vast majority of trees) shall be forbidden. Excluding roadways, clear-cutting trees in any area equal to one square acre or more will require the permission of the Planning Board and Town Board. The Planning and/or Town Board may, at their discretion, require reforestation using a mix of red maple and white pine (or other species as recommended by a certified forester and approved by the Planning Board and Town Board) nursery stock of no less than four feet in height. Planting will take place before the project is considered complete. The contractor will remain responsible for maintaining healthy trees for one year after planting.

Must hold all necessary state and federal permits.

(10)

Operating considerations.

Building and grounds maintenance. Upon completion of installation, the site shall be returned as close as possible to its natural state. Any damaged, spare or unused parts, maintenance equipment, oil and all similar materials shall be removed from the premises within 30 days or kept in a covered and enclosed on-site storage facility. Code Enforcement shall be granted access to the site for inspections.

Roadways. All roadways and pathways shall be maintained year round for emergency access.

Ownership changes. If the ownership of a WECS operating under a special use permit changes, subject to the requirements of Subsection E, the special use permit shall remain in force and all conditions of the special use permit will continue to be obligations of succeeding owners. The Town Clerk shall be notified and the ownership change registered with the Town. All new owners must submit to the Town Clerk a letter of credit, decommissioning plan and plan for resolution of complaints acceptable to the Town under the terms of Subsection F(1) at the time the notification of ownership change is submitted. Failure to submit these items at the time of ownership change will result in revocation of the special use permit. All signs required under provisions of this section shall be changed accordingly.

Modifications. Any and all substantial modifications, additions, or changes to a WECS authorized to operate under this section, whether structural or not, shall be made by application to the Planning Board, except where modification is required for routine maintenance and repairs which become necessary in the normal course of use of such WECS or become necessary as a result of natural forces, such as wind or ice. Additionally, any modification resulting in significant modifications to the public health, safety, welfare or environment of the Town or the visual or sound impacts of the project must be reviewed and approved by the Planning Board.

(11)

Certifications.

Post-installation. A post-installation field report identifying the facilities' generation of electricity and any unanticipated impacts upon the environment shall be submitted to the Town Code Officer and Town Board within 60 days of completion of installation.

Insurance/liability. Prior to the commencement of construction of the WECS or MET tower, the applicant shall provide the Town Board proof, in the form of a duplicate insurance policy or a certificate issued by an insurance company, of commercial liability insurance and public liability insurance, of a level to be determined by the Town Board in consultation with the Town's insurer, to cover damage or injury which might result from the failure of a tower or towers or any other part(s) of the generation or transmission facility. The commercial liability insurance policy shall provide coverage of at least $2,000,000 per occurrence/$4,000,000 aggregate ($5,000,000 and $10,000,000, respectively, for WECS subject to Article 94C of the Public Service Law).

National and state standards. The applicant shall show that all applicable manufacturers, New York State and U.S. standards for the construction, operation, and maintenance of the proposed wind turbine have been met or are being complied with. Wind turbines shall be built, operated, and maintained to applicable industry standards of the Institute of Electrical and Electronic Engineers (IEEC) and the American National Standards Institute (ANSI). The applicant shall furnish evidence, over the signature of a professional engineer licensed to practice in the State of New York, that such wind turbine is in compliance with such standards.

Lightning strike/grounding. The applicant shall show that all applicable manufacturers' specifications and New York State and U.S. standards for the construction, operation, and maintenance of the WECS have been met or are being complied with, and a certification is required by a professional electrical inspector licensed by the State of New York.

Wind speed/wind load. Certification is required by a registered professional engineer or manufacturer's certification that the tower design is sufficient to withstand wind load requirements for structures as established by the Building Code of New York State.

Continuing obligations. All requirements detailed in this section shall remain in force for the life of the special use permit.

(12)

Public hearing. Upon a majority vote of the Planning Board and/or Town Board, the Planning Board and/or Town Board may hold a public hearing on the large-scale WECS application, if one is not otherwise required.

Abandonment of use. All permit applications for a large-scale WECS or a wind measurement tower shall be accompanied by a decommissioning plan to be implemented upon abandonment, or cessation of activity, or in conjunction with removal of the WECS or MET tower. Prior to issuance of a building permit, the owner or operator of the WECS or MET tower shall post a letter of credit in a face amount of not less than 120% of the estimated cost of complete decommissioning and removal to ensure proper, safe removal of the WECS or MET tower and accessory facilities in accordance with the decommissioning plan described below, prepared and submitted by a professional engineer licensed in the State of New York. The amount of the letter of credit shall be reviewed by the applicant and the Town Board every five years and may be changed based upon majority vote of the Town Board. The applicant shall submit a revised estimate of costs to decommission, prepared and certified by a professional engineer licensed by the State of New York, to be approved by the Town Board. The form of the letter of credit must be reviewed and approved by the Town Attorney, and the letter of credit must remain in effect until the system is fully removed and final inspection is completed by the Code Enforcement Officer. Any new owner must submit a letter of credit, under the same terms and conditions as the prior owner, for review and approval immediately upon change of ownership. Prior to removal of a WECS or MET tower, a demolition permit for removal activities shall be obtained from the Town of Binghamton.

The applicant shall submit a decommissioning plan that ensures that the site will be restored to a useful, nonhazardous condition, which plan shall be implemented without delay if 1) the applicant ceases operation of the WECS or MET tower for a period of 18 months, 2) begins but does not complete construction of the project within 18 months after receiving special use permit approval, or 3) the special use permit for the WECS or MET tower expires or is not renewed. The plan shall include but not be limited to the following:

WECS or MET tower removal shall include removal of all aboveground equipment and removal of foundations to a depth of four feet below grade. Below-ground accessory facilities, such as collection lines, are required to be removed. In addition, access roads may be left in place if written consent is received by the Town from the landowner. All WECS equipment or materials or accessory facilities installed underground must be fully removed and the land reclaimed where such equipment or materials will i) interfere with or prevent continued compliance by the landowner with any environmental laws, ii) give rise to any liability to the Town or the landowner under any environmental laws, or iii) form the basis of any claim, action, suit, proceeding, hearing or investigation under any environmental laws. "Environmental laws" shall mean any applicable law (including common law), statute, regulation, ordinance, order, code, guidance standard recognized by regulatory authorities, or other legal requirement relating to protection of the environment, hazardous material(s) and/or worker health and safety adopted by any applicable federal, state, or local governmental authority. "Hazardous material" means any pollutant, contaminant, hazardous or toxic substance, waste, and any other material subject to regulation or governed by any environmental law, and the presence, or discharge of, or exposure to which could result in liability as a result of its impact or potential impact on human health or the environment; and including asbestos and asbestos-containing material; petroleum, petroleum products and waste oil; any flammable explosives, radioactive materials, or toxic mold.

Restoration of the surface grade and soil after removal of equipment.

Revegetation of restored soil areas with native seed mixes, excluding any invasive species.

The time frame for the completion of site restoration work is not to exceed 12 months from the start of decommissioning.

In the event that construction of the WECS or MET tower has been started but is not completed and functioning within 12 months of the issuance of the final site plan approval, the Town may notify the applicant to complete construction and installation of the facility within 90 days. If the applicant fails to perform, the Town may notify the owner and/or operator to implement the decommissioning plan. The decommissioning must be fully completed within 180 days of such notification by the Town.

Upon cessation of activity of a fully constructed WECS or MET tower for a period of 12 months, the Town may notify the owner and/or operator of the facility to implement the decommissioning plan. Within 90 days of notice being served, the owner and/or operator can either restore operation equal to 50% of approved capacity or implement the decommissioning, which must then be fully complete within 180 days of the beginning of its implementation.

Upon revocation, termination or nonrenewal of the special use permit for a WECS or MET tower, the applicant, owner and/or operator must fully complete the decommissioning plan.

(5)

If the owner and/or operator fails to fully implement the decommissioning plan within the twelve-month time period and restore the site as required, the Town may, at its own expense, provide for the restoration of the site in accordance with the decommissioning plan and shall, in accordance with the law, recover all expenses incurred for such activities from the letter of credit or other financial guarantee and from the defaulted owner and/or operator. Any cost incurred by the Town which has not been fully paid by the owner and/or operator shall be assessed against the property, shall (in addition to any other available remedies) become a lien and tax upon said property, shall be added to and become a part of the taxes to be levied and assessed thereon, and enforced and collected with interest by the same officer and in the same manner as other taxes. The decommissioning plan shall provide for the ability of the Town, or its assignee or designee, to access the property owners' land until decommissioning is fully completed.

(6)

All current and future landowner(s) and project owner(s) will enter into a decommissioning agreement with the Town prior to commencement of the project.

Wind measurement towers.

Wind site assessment. As a wind site assessment is typically conducted to determine the wind speeds and the feasibility of using particular sites, installation of wind measurement towers shall be permitted in accordance with this subsection.

Applications for wind measurement towers. A MET tower shall be permitted as a customary accessory use in the agricultural zoning district and with the necessity of site plan review, subject to Town Code and Uniform Code requirements applicable to accessory uses, to the extent not inconsistent with this section. A special use permit application for a wind measurement tower shall include:

Building permit application, including all materials required thereby.

Name, address, telephone number and email address of the applicant and all related companies. If the applicant is represented by an agent, the application shall include the name, address, and telephone number of the agent as well as an original signature of the applicant authorizing the representation.

Name, address, telephone number and email address of the property owner. If the property owner is not the applicant, the application shall include a letter agreement or other written permission signed by the property owner and notarized:

Confirming that the property owner fully understands and approves the proposed application(s) and provides copies of any lease agreements between the property owner and the applicant.

Authorizing the submission of the application.

Address of each proposed wind measurement tower location, including Tax Map section, block and lot number.

Proposed development plan and map, including a site plan for the property as described in Subsection G(2)(a) above.

Decommissioning plan, including a letter of credit for removal in a face amount of not less than 120% of the estimated cost of complete decommissioning and removal to ensure proper, safe removal of the MET tower and accessory facilities in accordance with the decommissioning plan described below, prepared and certified by a professional engineer licensed in the State of New York. The amount of the letter of credit shall be reviewed by the applicant and the Town Board every five years and may be changed based upon majority vote of the Town Board. The applicant shall submit a revised estimate of costs to decommission prepared and certified by a professional engineer licensed by the State of New York to be approved by the Town Board. The form of the letter of credit must be reviewed and approved by the Town Attorney, and the letter of credit must remain in effect until the system is fully removed and final inspection is completed by the Code Enforcement Officer. Any new owner must submit a letter of credit, under the same terms and conditions as the prior owner, for review and approval immediately upon change of ownership. Prior to removal of a WECS MET tower, a demolition permit for removal activities shall be obtained from the Town of Binghamton.

Standards for wind measurement towers.

All MET towers shall have a maximum height of 190 feet.

All MET towers shall comply with the following minimum setback requirements. If more than one setback applies, the most restrictive setback shall control:

Three times the total height from all permanent structures located on-site;

One thousand five hundred feet or three times the total height, whichever is greater, from all permanent structures located off-site.

Wind measurement towers shall be sufficiently secure so as to prevent access by unauthorized individuals.

Wind measurement towers shall not be artificially lighted except to assure human safety as required by the Federal Aviation Administration (FAA). Use of nighttime and overcast daytime condition lighting to satisfy FAA lighting requirements shall be subject to Planning Board on-site review to determine visual impact on adjacent parcels.

Special use permits for wind measurement towers shall be issued for a period of up to 18 months. Permits may be renewable upon application to the Planning Board.

Upon expiration of the special use permit, the wind measurement tower shall be fully removed and the land reclaimed in accordance with the decommissioning plan.

(h)

There shall be no more than three wind measurement towers permitted in the Town at any given time.

Penalties for violations.

In the event of a violation of this section or any WECS or MET system issued pursuant to this section, the Board may impose and collect, and the holder of the site plan approval for WECS or MET systems shall pay to the Town, fines or penalties as set forth below.

A violation of this section is hereby declared to be an offense, punishable by a fine not exceeding $1,000 or imprisonment for a period not to exceed 10 days, or both, for conviction of a first offense; for conviction of a second offense, both of which were committed within a period of five years, punishable by a fine of $1,500 or imprisonment for a period not to exceed 10 days, or both; and, upon conviction for a third or subsequent offense, all of which were committed within a period of five years, punishable by a fine of $2,000 or imprisonment for a period not to exceed 10 days, or both. However, for the purpose of conferring jurisdiction upon courts and judicial officers generally, violations of this section or such ordinance or regulation shall be deemed misdemeanors and, for such purpose only, all provisions relating to misdemeanors shall apply to such violations. Each week's continued violation shall constitute a separate additional violation.

Notwithstanding anything in this section, the owner/operator of a WECS or MET system may not use the payment of fines, liquidated damages or other penalties to evade or avoid compliance with this section or any subsection of this section. An attempt to do so shall subject the owner/operator of the WECS or MET system to termination and revocation of certificate of compliance, certificate of occupancy and/or building permit. The Town may also seek injunctive relief to prevent the continued violation of this section, without limiting other remedies available to the Town.

Penalty for failure to maintain insurance shall include revocation of building and certificate of occupancy or compliance.

Appeals.

Any applicant desiring relief or exemption from any aspect or requirement of this section may request such from the Planning Board in the form of a formal written application with full supporting data and documentation, which application must be filed with the Planning Board within 30 days of a pre-application meeting, unless the relief or exemption is contained in the original application for site plan review or, in the case of an existing or previously granted site plan approval, a written request for modification of its facilities has been filed. Such relief may be temporary or permanent, partial or complete, at the sole discretion of the Planning Board and approved by the Town Board. However, the burden of proving the need for the requested relief or exemption is solely on the applicant to prove the same to the satisfaction of the Planning Board. The applicant shall bear all costs of the Planning Board or the Town in considering the request, and the relief or exemption, if any, and to the extent granted, shall not be transferable to a new or different owner/operator of the WECS or MET tower without the specific written permission of the Planning Board. Such permission shall not be unreasonably withheld or delayed based on good cause shown. No such relief or exemption shall be approved unless the applicant demonstrates by clear and convincing evidence that, if granted, the relief or exemption will have no significant effect on the health, safety and welfare of the Town, its residents and other service providers.

If a permit for a WECS or MET tower is denied because of a conflict with other laws, including zoning laws of the Town, the applicant may appeal to (or apply for relief or variance from) the Zoning Board of Appeals, which shall regard wind energy as a factor to be considered, weighed and balanced along with other factors, including the statutory factors for variances.

Separability. The provisions of this section are separable, and if any provision, clause, sentence, subsection, word or part thereof is held illegal, invalid, unconstitutional, or inapplicable to any person or circumstance, such illegality, invalidity or unconstitutionality, or inapplicability shall not affect or impair any of the remaining provisions, clauses, sentences, subsections, words, or parts of this section or their application to other persons or circumstances. It is hereby declared to be the legislative intent that this section would have been adopted if such illegal, invalid, or unconstitutional provision, clause, sentence, subsection, word or part had not been included therein, and as if such person or circumstance, to which this section or part thereof is held inapplicable, had been specifically exempt therefrom.

Repealer. All ordinances local laws and parts thereof inconsistent with this section are hereby repealed.

Conflict with other laws. Where this section differs or conflicts with other laws, rules and regulations, unless the right to do so is preempted or prohibited by the county, state or federal government, the more restrictive or protective law of the Town and the public shall apply.

Effective date. This section shall take effective immediately upon filing with the New York State Secretary of State in accordance with § 27 of the Municipal Home Rule Law.

§ 240-57.2 Solar energy systems and geothermal.

[Added 1-5-2021 by L.L. No. 1-2021]

Title. This section shall be known as "Solar Energy Systems and Geothermal Law."

Purpose, intent, and findings.

Solar energy is a renewable and nonpolluting energy resource that can reduce fossil fuel emissions. Energy generated from solar energy systems can be used to offset energy demand on the grid where excess solar power is generated.

The use of solar energy equipment for the purpose of providing power and energy for heating and/or cooling is beneficial to the Town and its residents.

This section is intended to facilitate the installation of solar energy systems and equipment.

BUILDING-INTEGRATED PHOTOVOLTAIC SYSTEM

It is the intent of this section: a) to promote energy efficiency and conservation, and the use of renewable energy in the Town; b) to support "green" energy generating systems; and c) to support New York State in meeting its renewable energy goals.

Definitions. As used in this section, the following terms shall have the meanings indicated:

ACCESSORY USE

Accessory uses exist on the same lot as the principal use and are subordinate, incidental to, and customarily found in connection with the principal use.

ATTRACTIVE NUISANCE

A dangerous condition on a landowner's property that may attract children onto the land and may involve risk or harm to their safety. Because child trespassers may not appreciate the risks that the dangerous condition poses, landowners have the duty to either eliminate that danger or make it inaccessible to trespassing children.

Photovoltaic materials or components that are used in place of traditional building components or materials, especially in building features such as facades, roofs or skylights, and provide solar power for the building.

BUILDING-MOUNTED SOLAR ENERGY SYSTEM

A solar power system in which solar panels are mounted on either a building or roof either as a flush-mounted system or as modules fixed to frames which can be tilted toward the south at an optimal angle.

CERTIFICATE OF COMPLIANCE

A certificate stating that materials and products meet specified standards or that work was done in compliance with approved construction documents.

CLOSED LOOP SYSTEM

A system using buried high-density polyethylene (HDPE) plastic piping installed in drilled and grouted boreholes that conductively exchanges thermal (heat) energy with the ground via circulating water or a water/antifreeze mixture through the piping system.

COMMUNITY SOLAR FARM OR GARDEN

A solar power installation that accepts capital from and provides output credit and tax benefits to individual and other investors.

CONCENTRATED SOLAR POWER

Concentrated solar power systems generate solar power by using mirrors or lenses to concentrate a large area of sunlight onto a receiver. Electricity is generated when the concentrated light is converted to heat, which drives a heat engine connected to an electrical power generator or powers a thermochemical reaction.

DECOMMISSIONING

The process of completely and properly removing a solar energy system.

DECOMMISSIONING PLAN

A formalized plan submitted at time of submission of a site plan to ensure proper and complete removal of a solar energy system.

DIRECT EXCHANGE SYSTEM

A system using buried copper tubing that conductively exchanges heat energy with the ground via circulating a refrigerant through the tubing.

ENERGY STORAGE

Devices that store energy and makes it available in an electrical form.

ENVIRONMENTAL ASSESSMENT FORM

A form used by an agency to assist it in determining the environmental significance or nonsignificance of actions. A properly completed EAF must contain enough information to describe the proposed action, its location, its purpose, and its potential impacts on the environment.

FREE-STANDING OR GROUND-MOUNTED SOLAR COLLECTOR SYSTEM

A solar energy system that is directly installed into or on the ground and is not attached or affixed to an existing structure.

GEOTHERMAL ENERGY

Thermal energy generated and stored in the Earth.

GLARE

Light reflected off solar panels that could potentially be a safety hazard.

LARGE-SCALE SOLAR ENERGY SYSTEMS

For purposes of this section, the term "large-scale solar energy systems" refers to solar photovoltaic systems that produce more than 25 kilowatts of energy.

LOT COVERAGE REQUIREMENTS

Must comply with area zoning requirements.

MINIMUM LOT SIZE

The smallest area allowed by zoning regulations on which to construct a structure.

NET METERING

A billing arrangement that allows a solar customer to get credit for excess power that the customer generates and delivers back to the grid so that the customer only pays for net power usage.

NONCONFORMING STRUCTURE OR BUILDING

A building that was allowed under the zoning regulations at the time the building was established but which, because of subsequent changes in those regulations, is no longer a permitted use.

OPEN LOOP SYSTEM

A series of standard water wells that extract and use groundwater directly as a heat-exchange source then return the heated or cooled groundwater back to the aquifer.

PHOTOVOLTAIC (PV) SYSTEM

A solar energy system that produces electricity by the use of semiconductor devices, called photovoltaic (PV) cells, that generate electricity when light strikes the PV cells. In this section, the term "solar collector" refers to a photovoltaic system for energy production.

PRINCIPAL USE

For each district, zoning lists certain uses as principal uses of land that are permitted as-of-right.

PROJECT COMPLETION

The solar installation project is complete when the entire system is running at its stated capacity, is feeding metered electricity to the grid, all construction tools and equipment are removed, and all site restoration is finished and screening vegetation is planted to the satisfaction of the Code Enforcement Officer.

PROPERTY OPERATION AND MAINTENANCE PLAN

A plan documenting continuing photovoltaic maintenance and property upkeep, such as mowing and trimming.

QUALIFIED SOLAR INSTALLER

Persons or companies that have skills and knowledge related to the construction and operation of solar electrical equipment and installations and have received safety training on the hazards involved. Persons or companies who are on the list of eligible photovoltaic installers maintained by the New York State Energy Research and Development Authority (NYSERDA), or who are certified as a solar installer by the North American Board of Certified Energy Practitioners (NABCEP), shall be deemed to be qualified solar installers for the purposes of this definition.

REMOTE NET METERING

An arrangement with an electric utility that allows for the kilowatt hours (kWh) generated for a PV system located at a specific site to be credited towards kWh of consumption at different locations.

ROOFTOP/ROOF- OR BUILDING-MOUNTED SOLAR ENERGY SYSTEM

A solar energy system in which solar panels are mounted on top of the structure of a roof either as a flush-mounted system or as modules fixed to frames which can be tilted toward the south at optimal angle.

SETBACKS

The distance from a front lot line, side lot line or rear lot line of a parcel within which a free-standing or ground-mounted solar energy system is installed.

SITE PLAN REVIEW

Review and approval of a site plan by the Town Planning Board.

SMALL-SCALE SOLAR ENERGY SYSTEMS

For purposes of this section, the term "small-scale solar energy system" refers to solar photovoltaic systems that produce up to and including 25 kilowatts of alternating current.

SOLAR ACCESS

Space open to the sun and clear of overhangs or shade so as to permit the use of active and/or passive solar energy systems on individual properties.

SOLAR COLLECTOR SYSTEM

See Photovoltaic (PV) System above.

SOLAR ENERGY

A renewable and nonpolluting energy resource that can reduce fossil fuel emissions.

SOLAR ENERGY EQUIPMENT/SYSTEM

Solar collectors, energy storage devices, heat pumps, heat exchangers, and other materials, hardware or equipment necessary to process by which solar radiation is collected, converted into another form of energy, stored, protected from dissipation and distributed. Solar systems include solar thermal, photovoltaic and concentrated solar.

SOLAR THERMAL SYSTEMS

Solar thermal systems directly heat water or other liquids using sunlight. The heated liquid is used for such purposes as space heating and cooling, domestic hot water, and heating pool water.

SPECIAL USE PERMIT

A special use permit allows a parcel of land or property to be used in a manner that deviates from normally accepted activities in that area but conditioned upon compliance with specific requirements imposed to limit any negative effects on adjacent properties and the community.

TILT

The angle of the solar panels and/or solar collector relative to their latitude.

ZONE VISIBILITY MAP

A map showing where the solar-collector system may be seen.

Types of allowed systems.

Part I.

Permitting small-scale solar energy systems.

No small-scale solar energy systems or devices shall be installed or operated in the Town of Binghamton except in compliance with this section.

To the extent practicable, the accommodation of solar energy systems and equipment and the protection of access to sunlight for such equipment shall be encouraged in the application of the various review and approval provisions of the Town Code.

Rooftop and building-mounted solar for small-scale solar energy systems are permitted in all zoning districts in the Town subject to the following conditions:

Unified solar permits shall be required for installation of all rooftop and building-mounted solar collectors.

Any height limitations of the Town Code shall not be applicable to solar collectors provided that such structures are erected in accordance with the requirements of this section, and only extend 10 feet above a flat roof, and that such structures do not obstruct solar access to neighboring properties.

Placement of solar collectors on flat roofs shall be allowed as of right, provided that panels do not extend horizontally past the roofline.

Unified solar permit process/application. An applicant for an eligible roof-top mounted solar energy system must apply for a unified solar permit subject to obtaining a special use permit and/or site plan approval in accordance with Subsection D(1)(a)[6].

Provided the solar energy system meets the requirements for a unified solar permit set forth in this section of the law, an applicant must submit the unified solar permit application to the Code Enforcement Officer as follows:

Unified solar permit eligibility checklist. The applicant shall complete the application form provided by the Town Code Enforcement Department. The unified solar permit application can be found on the Town of Binghamton website. The application form contains a checklist to determine eligibility for a unified solar permit. The application must be accompanied by:

A site plan showing location of major components of the solar energy system and other equipment. This plan should represent relative locations of components on the roof or accessory structure, including, but not limited to, location of arrays, existing electrical service locations, utility meters, inverter locations, system orientation and tilt angles. This plan must show access and pathways that are compliant with New York State Uniform Fire Prevention and Building Code, if applicable.

Specification sheets for all manufactured components are required to be submitted to the Code Enforcement Department.

One-line or three-line electrical diagram. The electrical diagram required by the New York State Energy Research and Development Authority ("NYSERDA") for an incentive application, and/or utilities for an interconnection agreement must be provided here.

All diagrams and plans must be prepared by a professional engineer or registered architect as required by New York State law and include the following:

Project address, section, block and lot number of the property;

Land owner's and/project owner's name, address and phone number;

Name, address and phone number of the person preparing the plans; and

[D]

System capacity in kW-DC.

The applicant shall provide information to demonstrate that the size and scale of the proposed ground-mounted or free-standing solar energy system is designed to generate electricity for the existing or proposed residence or the existing or proposed use on the lot, and not designed to generate electricity for sale or resale. If requested, the applicant must provide a report from a qualified third-party to establish that the size and scale of the facility is consistent with the existing or proposed principal use on the lot. If the Code Enforcement Officer determines that the size and scale of the proposed facility is not consistent with: (A) the energy usage history of the existing residence or use, or (B) the projected energy needs of the proposed structure or use, the Code Enforcement Officer may deny the unified solar permit. If the size and scale of the proposed solar collector facility will generate more than 150% of the existing or projected energy usage of the principal use/structure, the Code Enforcement Officer may determine that the proposed solar collector facility is not designed primarily to meet the energy needs of the existing or proposed principal use on the lot.

Permit review and inspection timeline for unified solar permit. Unified solar permit determinations will be issued within 10 calendar days upon receipt of complete and accurate applications. The Code Enforcement Officer will provide feedback within 10 days of receiving incomplete or inaccurate applications. If an inspection is required, it will be provided within five days of inspection request.

Building-integrated photovoltaic (BIPV) systems for small-scale energy systems are permitted as of right in all zoning districts.

Ground-mounted and free-standing solar collectors and solar thermal systems for small-scale solar energy systems. In all zoning districts, a special use permit or site plan approval is required for: (i) any ground-mounted or free-standing small-scale solar energy system or (ii) any ground-mounted or free-standing small-scale solar energy system thermal system. The type of review required is determined by the size of the lot. The following regulations and conditions apply to all small-scale solar energy system ground-mounted or free-standing solar collectors and small-scale solar energy system thermal systems:

An applicant for a ground-mounted or free-standing solar collector or solar thermal system (small-scale solar energy system) on any lot that is three acres or less must apply for a special use permit to the Planning Board.

An applicant for a ground-mounted or free-standing solar collector or solar thermal system (small-scale solar energy system) on any lot that is greater than three acres must apply to the Planning Board for site plan review.

Ground-mounted solar collectors or solar thermal systems (small-scale solar energy system) are only permitted as accessory uses.

All ground-mounted solar collectors and solar thermal systems must be installed in the side or rear yards. No free-standing or ground-mounted solar collector system or solar thermal system shall be located in the front yard of any lot, including the front yard of any corner lot. The location of the solar collector(s) must meet all applicable setback requirements for accessory structures in the zoning district in which it is located.

The height of the solar collector and any mounts shall not exceed 15 feet when oriented at maximum tilt.

Solar energy equipment shall be located in a manner to (i) minimize visual impacts and view blockage for surrounding properties, and (ii) shading of property to the north, while still providing adequate solar access for collectors.

The application shall include a plan and description of the method of screening of the ground-mounted or free-standing solar collector or thermal system. Screening shall be mandatory in all cases in which the lot is three acres or less. For any lot greater than three acres the Planning Board shall have discretion to determine the method and location of screening required. Solar energy collectors shall be screened when possible and practicable through the use of architectural features, earth berms, landscaping, or other screening which will harmonize the proposed structure with the character of the property and surrounding area.

The applicant shall provide a detailed plan showing the proposed location of the ground-mounted or free-standing solar energy system in relation to all property lines and all structures (existing and/or proposed) on the lot.

Solar energy systems and equipment shall be permitted only if they are determined by the Town not to present any unreasonable safety risks, including, but not limited to, the following:

Weight load.

Wind resistance.

Ingress or egress in the event of fire or other emergency.

Special use permit standards and conditions for small-scale solar energy systems.

Ground-mounted solar collectors or solar thermal systems (small-scale solar energy system) are only permitted as accessory uses.

The applicant shall provide a detailed plan showing the proposed location of the ground-mounted or free-standing solar energy system in relation to all property lines and structures (existing and/or proposed) on the lot.

The location of the solar collector(s) must meet all applicable setback requirements for accessory structures in the zoning district in which it is located.

The height of the solar collector and any mounts shall not exceed 15 feet when oriented at maximum tilt.

Solar energy collectors shall be installed so as to minimize glare onto neighboring properties and roadways.

Solar energy collectors and equipment that is damaged or no longer functional shall be replaced or removed by the landowner or project owner.

[j]

Screening shall be mandatory in all cases in which the lot is three acres or less. For any lot greater than three acres the Planning Board shall have discretion to determine the method and location of screening required. Solar energy collectors shall be screened when possible and practicable through the use of architectural features, earth berms, landscaping, or other screening which will harmonize the proposed structure with the character of the property and surrounding area.

[k]

Solar energy systems and equipment shall be permitted only if they are determined by the Town not to present any unreasonable safety risks, including, but not limited to, the following:

Weight load.

Wind resistance.

Ingress or egress in the event of fire or other emergency.

[l]

No signs, banners, lighting or advertising may be placed on small-scale solar energy systems.

Placement of small-scale solar energy systems on nonconforming buildings or structures. Notwithstanding the area, lot and bulk requirements of this section or the Zoning Law of the Town, building-mounted and building-integrated small-scale solar energy systems may be installed:

On the roof of a nonconforming structure or building that exceeds the maximum height restriction, provided the building-mounted solar collector does not extend above the peak or highest point of the roof to which it is mounted.

On a structure or building that exceeds the maximum lot coverage requirements, provided there is no increase in the extent or degree of nonconformity with said requirement.

Installation requirements, inspection, and decommission.

All small-scale solar energy system installations must be performed by a qualified solar installer.

Prior to operation, electrical connections must be inspected by a Town Code Enforcement Officer or Building Inspector and by an appropriate electrical inspection person or agency, as determined by the Town.

Any connection to the public utility grid must be inspected by the appropriate public utility.

Solar energy systems shall be maintained in good working order.

Rooftop and building-mounted solar energy systems shall meet the current version of the New York Uniform Fire Prevention and Building Code standards in effect at the time permit is issued.

If energy storage devices are included as part of the small-scale solar energy system, they must be placed in a secure container or enclosure meeting the requirements of the New York State Uniform Fire Prevention Building Code when in use, and, when no longer used, shall be disposed of in accordance with the laws and regulations of New York State.

Right to inspect. If the Code Enforcement Department receives a complaint, or requests access to inspect a solar collector facility, the property owner shall allow access to the property and facility. If it is determined after inspection that a hazard has been identified, the solar collector shall be removed or replaced within 120 days of notice from the Code Enforcement Department.

Abandonment and decommissioning. Removal required. Any small-scale solar energy system which has been determined to be nonfunctioning or abandoned shall be decommissioned and removed. The owner of the system and owner of the land upon which the system is located shall be jointly and severally responsible to physically remove all components of the system within one year of the determination of the system to be nonfunctioning or abandoned.

Part II.

Permitting large-scale solar energy systems.

No large-scale solar energy systems or devices shall be installed or operated in the Town of Binghamton except in compliance with this section.

All large-scale solar energy systems shall be installed by a qualified solar installer.

All large-scale solar energy systems require a special use permit and site plan approval. Solar collector systems requiring a special use permit and site plan approval shall include, but not be limited to:

Ground-mounted or free-standing solar energy systems that do not meet the definition of a small-scale solar energy system collector project.

Roof-mounted solar energy systems that do not meet the definition of small-scale solar energy systems.

Large-scale solar energy systems that are designed to provide electricity to an off-site user or users, through a net metering agreement or other agreement, located on a lot(s) other than the lot on which the solar collector system is located.

Community solar farms or gardens.

Solar collector systems mounted on carports or canopy structures covering parking facilities at commercial or industrial properties.

Special use permit application requirements. Applications for the installation of a large-scale solar energy system shall be reviewed by the Planning Board. For a special permit application, the site plan application is to be used as supplemented by the following provisions:

If the property of the proposed project is to be leased, legal consent between all parties, including the landowner, specifying the use(s) of the land for the duration of the project, including easements and other agreements, shall be submitted.

Plans and specifications showing the site plan and proposed layout of the solar energy system signed by a professional engineer or registered architect shall be required.

The equipment specification sheets shall be documented and submitted for all photovoltaic panels, significant components, mounting systems, and inverters that are to be installed.

Property operation and maintenance plan. Such plan shall describe continuing photovoltaic maintenance and property upkeep, such as mowing and trimming.

Decommissioning plan. Such plan shall provide details for the decommissioning of the project, including removal of the solar equipment and restoration of the property back to its original state to be performed by the lessor and/or landowner or any successors in interest thereof at the lessor's and/or landowner's expense and provide a letter of credit for the cost of the decommissioning should any lessor and/or landowner fail to perform the decommissioning of the project.

The lessor, project owner and landowner shall be required to enter into a decommissioning agreement with the Town.

Classification. Solar collector systems requiring a special use permit may be classified as either an accessory use or a principal use as set forth below.

Principal use.

A solar collector system constructed on a lot and providing electricity to an off-site user or users through a remote net metering agreement or other arrangement, shall be considered a principal use.

All large-scale solar energy systems, ground-mounted solar collector systems are classified as a principal use and shall adhere to the requirements of the zoning district in which the system is located, unless such regulations are modified by other provisions of this section.

Accessory use/accessory structure. A large-scale solar energy system, ground-mounted solar collector system shall be considered an accessory use/accessory structure when generating electricity for the primary consumption of a commercial or industrial principal use(s) or building(s) located on the same lot as the system. All large-scale solar energy systems ground-mounted solar collector systems that are classified as an accessory use/accessory structure shall adhere to the minimum area, yard and bulk requirements for principal uses within the zoning district in which the system is located, unless modified by other provisions of this section.

Standards for large-scale solar energy systems requiring a special use permit.

Large-scale solar energy systems, ground-mounted solar collector systems and ground-mounted systems classified as a principal use shall comply with the following standards and criteria:

Setbacks. Ground-mounted large-scale solar energy systems are subject to the minimum yard and setback requirements for the zoning district in which the system is located. No part of a ground-mounted system shall extend into the required yards and/or setbacks.

No solar collector should be closer than 20 feet to any other building, structure or adjacent lot or property line.

Solar collectors should be 50 feet from the boundary line of any public street or roadway.

No solar collector should be erected in front of any existing building.

Setback to residential district. If a ground-mounted large-scale solar energy system is located on a lot that adjoins a residential district, an additional setback as determined by the Code Enforcement Officer and/or Planning Board shall be provided between the residential district and all site improvements associated with the system. The additional setbacks are intended to provide a visual buffer between the residential district and ground-mounted system. The additional setback, as well as the minimum setback area, shall be planted with a mixture of evergreen and deciduous plantings at a height so as to provide, as much as practicable, a visual screen of the ground-mounted system from residential uses. The species, type, location and planted height of such landscaping shall be subject to the approval of the Planning Board.

Utility connections. Customer-owned utility lines and connections from a large-scale solar energy system, ground-mounted solar PV system shall be installed underground, unless otherwise determined by the Planning Board for reasons that may include poor soil conditions, topography of the site, and requirements of the utility provider. Electrical transformers for utility interconnections may be above ground if required by the utility provider.

Fences. All large-scale solar energy systems require a fence with a self-locking gate as required by the National Electrical Code. Fences shall generally be eight feet in height, including open-weave chain link fences and solid fences and shall be permitted for the purpose of screening or enclosing a large-scale solar energy system.

[viii]

Height. Large-scale solar energy systems may not exceed 15 feet in height.

[ix]

Minimum lot size. Large-scale solar energy systems shall adhere to the minimum lot size requirements for the zoning district in which the system is located; however, the lot shall be large enough to accommodate the foot print of the array, all equipment, and required setback.

[x]

Lot coverage requirements. Large-scale solar energy systems shall adhere to the maximum lot coverage requirement for principal uses within the zoning district in which they are located.

[xi]

Signs. Any sign for a large-scale solar energy system classified as a principal use shall adhere to the sign requirements for the zoning district in which it is located. A sign shall be attached to the fence at the main gate that contains a warning about high voltage. Signage shall be provided at the meter that shows locations of disconnects and provides emergency contact information for emergency services.

[xii]

Siting considerations. It is a goal of the Town to preserve, to the maximum extent practicable, mature forests. Land that was a mature forest, must be cleared for a minimum of one year prior to the submission of an application for a large-scale solar energy system. No large-scale solar energy system shall be installed in a floodplain or other environmentally sensitive area without the following:

Approval of an engineering plan;

Approval and acceptance of documentation showing proper installation including a maximum tilt with the entire panel(s) at least two feet above the base flood elevation;

Approval and acceptance of plans for battery storage;

[D]

Approval and acceptance of plans for utility connections;

[E]

Approval and acceptance of safety measures.

Building-mounted, large-scale solar energy systems.

For a building-mounted system installed on a sloped roof, the highest point of the system shall not exceed the highest point of the roof to which it is attached. Solar panels shall be parallel to the roof surface or tilted with no more than an eighteen-inch gap between the module frame and the roof surface.

For a building-mounted system installed on a flat roof, the highest point of the system shall not extend more than 10 feet above the height of the roof.

Special use permit conditions. The following conditions shall apply to all special use permits issued for large-scale solar energy systems. No special use permit shall be issued unless the Planning Board finds that the following conditions have been or will be met.

Decommissioning plan. All applications for large-scale solar energy systems shall be accompanied by a decommissioning plan to be implemented upon abandonment and/or in conjunction with removal of the system. The decommissioning plan shall address those items listed in this section and shall include:

An estimate of the anticipated operational life of the system.

Identification of the party responsible for decommissioning.

Description of any agreement with the landowner regarding decommissioning.

A schedule showing the time frame over which decommissioning will occur and for completion of site restoration work, not to exceed 12 months.

A cost estimate prepared by a qualified professional engineer, estimating the full cost of decommissioning, removal and proper disposal of the solar photovoltaic system.

A letter of credit to ensure that financial resources will be available to fully decommission the site in a face amount of not less than 120% of the estimated cost of complete decommissioning and removal to ensure proper, safe removal of the solar energy system and accessory facilities in accordance with the decommissioning plan described below. The amount of the letter of credit shall be reviewed by the applicant and the Board every five years and may be changed based upon majority vote of the Board. The form of the letter of credit must be reviewed and approved by the Town Attorney, and the letter of credit must remain in effect until the system is fully removed and final inspection is completed by the Code Enforcement Officer.

A decommissioning agreement entered into with the Town by all parties including the landowner.

Report. Upon request of the Town, the owner of the large-scale solar energy system shall provide the Town Building Inspector a report showing the rated capacity of the system, and the amount of electricity that was generated in the most recent twelve-month period. The report shall be submitted no later than 45 days after a written request. Failure to submit a report as required herein shall be considered a violation subject to the penalties and remedies set forth in this section and the Town Code.

Ownership changes. If the ownership of a large-scale solar energy system that is under a special use permit changes, the special use permit shall remain in force and all conditions of the special permit will continue to be obligations of succeeding owners, subject to Town review and approval of the revisions to the special use permit. The Town Clerk shall be notified and the ownership change registered with the Town. At the time of the notification of the ownership change the new owner(s) must provide a letter of credit subject to the terms listed in Subsection D(2)(a)[8][a][vi] above to the Town Clerk. All signs required shall be updated accordingly.

Certification that the proposed large-scale solar energy system will not cause interference with air traffic.

Report showing quality and stormwater run-off calculations for the disturbed area.

Plans to prevent the erosion of soil both during and after construction, excessive runoff, and flooding of other properties, as applicable. There should be preconstruction and post-construction drainage calculations for the site completed by a licensed engineer. From this, the engineer must show how there will be no increase in runoff from site. A stormwater pollution prevention plan will be required if disturbance of the land exceeds one acre or in accordance with the New York State DEC rules and regulations in effect at the time of the project.

The applicant shall submit a completed environmental assessment long-form (EAF) and a completed visual EAF addendum for the Town Board to process. Based on the result of the visual EAF addendum, the Town Board may require submission of a more detailed visual analysis.

The applicant shall furnish a visual impact assessment, in a manner approved by the Planning Board, to demonstrate and provide in writing and/or by drawing how it shall effectively screen from view the proposed large-scale solar energy system ground-mounted solar collector and all related structure which shall include:

A zone visibility map, which shall be provided in order to determine locations where the ground-mounted large-scale solar energy system may be seen.

Pictorial representations of before and after views from key viewpoints both inside and outside of the town; including, but not limited to, major roadways; airports, county and local parks, other public lands; and from any other location where the site is visible to a large number of visitors, travelers, or residents. The Town Engineer, acting in consultation with its consultants or experts, will provide guidance concerning the appropriate key sites at a pre-application meeting.

An assessment of visual impact of the large-scale solar energy systems ground-mounted solar energy systems and accessory buildings for abutting and adjacent properties and streets.

[9]

Emergency access. Fire access roads and access for fire apparatus equipment shall be provided, as approved by the chief of the Town of Binghamton Volunteer Fire Company Inc. Any gates to the site shall be equipped with Knox Company locks to allow fire department access.

[10]

Right to inspect.

In order to verify that the applicant for a large-scale solar energy system and any and all lessees, renters, and/or licensees of the large-scale solar energy systems who place and construct such facilities, including, but not limited to, solar collectors and solar inverters, in accordance with all applicable technical, safety, fire, building and zoning codes, laws, ordinances, and regulations and other applicable requirements, the Town and its Code Enforcement Office may, at any time, inspect the project site, all documents and records regarding the holder's, renter's, lessee's or licensee's placement, construction, modification and maintenance of such facilities.

The Code Enforcement Office shall have the right to enter onto the property to inspect the project at any time during construction and following completion of the project. Any special inspections required by the Code Enforcement Office shall be at the expense of the applicant.

Agricultural lands.

Any large-scale solar energy system located on areas that consist of Prime Farmland of Statewide Importance shall not exceed 50% of the area of Prime Farmland of Statewide Importance on the parcel.

To the extent practicable, large-scale 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.

Large-scale energy system owners 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 landowners and/or solar system owners shall use native plant species and seed mixes.

Reimbursement for costs of review of large-scale solar energy systems by Town Designated Engineer.

The applicant for a special use permit for a large-scale solar energy system shall be responsible for reimbursing the Town for the cost of the engineering review by the Town Designated Engineer.

The Planning Board may use the Town Designated Engineer (TDE) and retain consultants and/or experts necessary to assist the Town in reviewing and evaluating the application at the expense of the applicant.

An applicant shall deposit with the Planning Board funds sufficient to reimburse the Town for all reasonable costs of TDE and consultant evaluation and consultation in connection with the review of any application. An initial deposit of $1,500 (the "initial deposit") shall be deposited with the application. The Town will maintain a separate escrow account for all such funds. The Town's consultants/experts shall invoice the Town for their services in reviewing the application. If at any time during the process the escrow account has a balance of less than $1,000, the applicant shall immediately, upon notification by the Town, replenish said escrow account so that it has a balance of at least $1,500. 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 promptly refunded to the applicant. The amount of the escrow shall be commensurate with the scale of the project as defined and determined in Subsection D(2)(c)[4] below.

The total amount of the funds needed as set forth in Subsection D(2)(c)[3] of this section may vary with the scope and complexity of the project, the completeness of the application and other information as may be needed to complete the necessary review, analysis and inspection of any construction or modification. In the event the Planning Board determines that the initial deposit will be insufficient for review of the application, the Planning Board shall notify the applicant, and the applicant shall supplement the escrow fund within 30 days of notice from the Building Inspector of the estimated amount of the review fees necessary to process the application.

Liability insurance.

An owner/operator of a large-scale solar energy system shall secure and at all times maintain public liability insurance for the personal injuries, death and property damage, and umbrella insurance coverage for the duration of the large-scale solar energy system in amounts as set forth below:

Commercial general liability covering personal injuries, death, and property damage: $2,000,000 per occurrence/$3,000,000 aggregate.

Automobile coverage: $1,000,000 per occurrence/$2,000,000 aggregate.

Workers' compensation and disability: statutory amounts.

The insurance policies shall be issued by an agent or representation of an insurance company licensed to do business in the state and with a Best's rating of at least "A."

Renewal or replacement policies or certificates shall be delivered to the Town at least 15 days before the expiration of the insurance which such policies are to renew or replace.

Before construction of a permitted solar energy production system is initiated, but no later than 15 days after the grant of the Town's approval, the holder of the site plan approval must deliver to the Town a copy of each of the policies or certifications representing the insurance in the required amounts.

Penalties for violations.

In the event of a violation of this chapter or any large-scale solar energy system issued pursuant to this chapter, the Board may impose and collect, and the holder of the site plan approval for solar collection facilities shall pay to the Town, fines or penalties as set forth below.

A violation of this chapter is hereby declared to be an offense, punishable by a fine not exceeding $1,000 or imprisonment for a period not to exceed six months, or both, for conviction of a first offense; for conviction of a second offense, both of which were committed within a period of five years, punishable by a fine of $1,500 or imprisonment for a period not to exceed six months, or both; and, upon conviction for a third or subsequent offense, all of which were committed within a period of five years, punishable by a fine of $2,000 or imprisonment for a period not to exceed six months, or both. However, for the purpose of conferring jurisdiction upon courts and judicial officers generally, violations of this section or such ordinance or regulation shall be deemed misdemeanors and, for such purpose only, all provisions of relating to misdemeanors shall apply to such violations. Each week's continued violation shall constitute a separate additional violation.

Notwithstanding anything in this chapter, the owner/operator of a large-scale solar energy system may not use the payment of fines, liquidated damages or other penalties to evade or avoid compliance with this chapter or any section of this chapter. An attempt to do so shall subject the owner/operator of the large-scale solar energy system to termination and revocation of certificate of compliance. The Town may also seek injunctive relief to prevent the continued violation of this chapter, without limiting other remedies available to the Town.

Penalty for failure to maintain insurance shall include revocation of building and/or unified solar permit and certificate of occupancy or compliance.

Default and/or revocation.

If a large-scale solar energy system is repaired, rebuilt, placed, moved, relocated, modified or maintained in a way that is inconsistent or not in compliance with the provisions of this chapter, then the Code Enforcement Office shall notify the owner/operator of the large-scale solar energy system in writing of such violation. Such notice shall specify the nature of the violation or noncompliance and that the violations must be corrected within seven days of the date of the postmark of the notice, or of the date of personal service of the notice, whichever is earlier. Notwithstanding anything to the contrary in this subsection or any other section of this chapter, if the violation causes, creates or presents an imminent danger or threat to the health or safety of lives or property, the Code Enforcement Officer may, at his sole discretion, order the violation remedied within 24 hours.

If, within the period set forth in Subsection D(2)(f)[1] above, the large-scale solar energy system is not brought into compliance with the provisions of this chapter or substantial steps are not taken in order to bring the affected large-scale solar energy system into compliance, the Code Enforcement Office may revoke the certificate of compliance for large-scale solar energy system and shall notify the owner/operator of the large-scale solar energy system within 48 hours of such action.

Abandonment and decommissioning regulations for large-scale solar energy systems.

Applicability and purpose. This section governing abandonment and decommissioning shall apply to large-scale solar energy systems. It is the purpose of this section to provide for the safety, health, protection and general welfare of persons and property in the Town of Binghamton by requiring abandoned commercial solar collector systems to be removed pursuant to a decommissioning plan on file with the Town. Abandoned large-scale solar energy systems may become unsafe by reason of their energy-producing capabilities and serve as an attractive nuisance.

Abandonment. A large-scale solar energy system shall be deemed "abandoned" if the system fails to generate and transmit electricity at a rate of more than 50% of its rated capacity over a continuous period of one year. If requested by the Code Enforcement Officer, the property owner and/or operator of the solar collector system shall provide the Code Enforcement Officer, within 45 days of a written request, a report certified by a qualified consultant demonstrating that the solar collector system is operating at a rate of at least 50% of its rated capacity. Failure to provide a report within 45 days of a written request shall create a presumption that the solar collector facility is not operating at the rate of at least 50% of its rated capacity. A large-scale solar energy system also shall be deemed abandoned if, following site plan approval, construction of the system has commenced but has not achieved project completion within 18 months of issuance of the first building permit for the project as denoted by the issuance of a certificate of compliance. The time at which a large-scale solar energy system shall be deemed abandoned may be extended by the Planning Board for one additional period of 60 days, provided the system owner presents to the Planning Board a viable plan subject to acceptance by the Town Board, including a financial statement indicating adequate, dedicated funds, outlining the steps and schedules for placing the system in service or back in service, at no less than 80% of its rated capacity, within the time period of the extension. Any application for an extension of time shall be made to the Planning Board by the owner (and/or operator) prior to abandonment as defined herein.

Removal required. Any large-scale solar energy system or small-scale solar energy system which has been determined to be abandoned shall be decommissioned and removed. The owner of the facility and owner of the land upon which the system is located shall be jointly and severally responsible to physically remove all components of the system within one year of abandonment. Removal of a large-scale solar energy system shall be in accordance with a decommissioning plan approved by the Town Board.

Decommissioning and removal. Decommissioning and removal of all ground-mounted solar energy system shall consist of:

Physical removal of all above and below ground equipment, structures and foundations, including, but not limited to, all solar arrays, buildings, security barriers, fences, electric transmission lines and components, roadways and other physical improvements to the site.

Disposal of all solid and hazardous waste in accordance with local, state and federal waste disposal regulations, including original receipts for all hazardous disposal items, which will be delivered to the Town Clerk.

Restoration of the ground surface and soil.

Stabilization and revegetation of the site with native seed mixes and/or plant species (excluding invasive species) to minimize erosion.

The project owner and landowner remain indefinitely, jointly and severally liable for any contamination (ground, ground water, or any other contamination) and is responsible for all remediation within NYS regulations.

Decommissioning and removal by the Town. If a large-scale solar energy system owner and/or landowner fails to decommission and remove an abandoned facility in accordance with the requirements of this section, the Town may enter upon the property to decommission and remove the system at the cost of the landowner.

Removal by Town and reimbursement of Town expenses. All costs and expenses incurred by the Town in connection with any proceeding or work performed by the Town or its representatives to decommission and remove a large-scale solar energy system, including legal costs and expenses, shall be reimbursed from the letter of credit posted by the project owner or landowner as provided in this section. Any costs incurred by the Town for decommissioning and removal that are not paid for or covered by the required letter of credit, including legal costs, shall be assessed against the property, shall become a lien and tax upon said property, shall be added to and become part of the taxes to be levied and assessed thereon, and shall be enforced and collected with interest by the same officer and in the same manner, by the same proceedings, at the same time and under the same penalties as are provided by law for the collection and enforcement of real property taxes in the Town.

Part III.

Permitting solar-thermal systems. Solar-thermal systems. Solar-thermal systems are permitted in all zoning districts subject to the following condition:

Ground-mounted and free-standing solar-thermal systems shall be subject to all requirements set forth in Subsection D(1) and (2) above as for ground-mounted and free-standing solar collectors and the New York State Uniform Fire Prevention Building Code and, in addition, must provide plumbing and electrical diagrams.

Part IV.

Permitting geothermal systems.

There are several types of geothermal systems, also known as "ground source heating pumps." They include closed loop, open loop, and direct exchange systems and are distinguished by the type of ground heat exchange (GHX) installed in the earth for heat transfer.

The closed loop and direct exchange (DX) GHXs may be installed vertically in drilled boreholes or horizontally in excavated trenches then backfilled. The open loop systems are installed only in vertical drilled boreholes.

When geothermal systems are proposed in conjunction with applications for the approval of sewage disposal and water supply facilities at a particular project site, the installation is also subject to guidelines issued by Broome County Health Department (BCHD) regarding the installation of geothermal wells.

Geothermal energy systems shall be permitted, installed, and erected within the Town pursuant to a building permit so long as they meet the provisions of this section and all applicable sections of the Town Code. Further, no building permit shall be issued to construct a geothermal energy system until all other applicable permits have been secured. Subject to compliance with this section and all other sections of the Town Code, geothermal energy systems shall be permitted in all zoning districts as customary accessory uses.

Permitted geothermal systems eligible to receive a building permit are those that satisfy the following basic criteria:

An open loop system using standard water well(s) to both extract and return groundwater from/to the same aquifer and with well screens set within 50 vertical feet of one another.

An open loop system that is not connected to a potable water system.

An open loop system where the depth to groundwater is at least 20 feet below the surface.

A vertical closed loop system using standard HDPE "U-bends" installed into drilled boreholes and grouted fully from bottom to top per industry standards.

A horizontal closed loop system using standard HDPE pipe installed into horizontal trenches and backfilled per industry standards. (6) A DX-to-earth contact system including either horizontal, diagonal or vertical loops and DX-to-water system including vertical loops.

Is not proposed to be located within the following areas of potential sensitivity:

One-hundred-year flood hazard zones considered a V or AE Zone on the FEMA flood maps.

Freshwater wetland or within 100 feet landward of the aforementioned.

Regulated freshwater surface water body.

Coastal erosion hazard areas.

Historic and/or culturally significant resources, in an historic district, or historic district transition zone.

Identified wellhead protection areas and aquifer protection districts.

General requirements. All permit applications shall be submitted to the Code Enforcement Officer on forms he/she provides and shall comply with all the requirements therein, including, but not limited to, the following:

Application for permit. Permit applications shall include, but not be limited to, the following items which may be satisfied by documentation supplied by the design engineer, installer or equipment manufacturer as applicable:

Demonstrate compliance with applicable building permit requirements.

A plot plan on an approved property survey no greater than a scale of one inch equals 40 feet depicting the limits of the setback zone distance from structures, property lines and public roads.

Certification by the design engineer and/or installer that the geothermal system complies with all applicable regulations and all applicable state and/or local building codes, including, but not limited to, those applicable to the use, storage or disposal of hazardous materials and chemicals.

Subsequent to installation and on or before final inspection, certification by the design engineer and/or installer that the geothermal system was installed as designed and that the design and installation complies with the relevant industry standards and guidelines outlined below in Subsection D(4)(b)[2] of this section, including but not limited to Air Conditioning Contractors of America (ACCA) Manual J heat pump unit sizing for residential systems, ACCCA Manual N or comparable load calculation techniques for commercial systems, and manufacturer-specified closed loop and DX field design guidelines.

A one-line diagram of the electrical components on the plan in sufficient detail to allow for a determination that the manner of installation conforms to the National Electric Code, Electric Code of the Town of Binghamton (if any) and the New York State Uniform Fire Prevention and Building Code.

An engineering analysis of the geothermal energy systems showing compliance with the New York State Uniform Fire Prevention and Building Code and certified by a licensed professional engineer.

Soil studies. Soil studies shall be required for geothermal energy systems having installations to be located on nonstandard soil conditions such as gravel, sand, muck, dune, beach, or dredge spoil (as determined by the Town Code Officer). No soil studies shall be required for all other geothermal energy systems, provided the manufacturer thereof submits a certification stating that the geothermal energy system and its foundation are suitable for installation in the soil at the proposed location.

A chemical data sheet including amounts of each chemical used in the system.

A spill prevention plan.

[j]

If more than one acre of land is disturbed or in accordance with the New York State DEC rules and regulations in effect at the time of the project, a stormwater pollution prevention plan will be required for site plan approval by the Planning Board.

Design standards and guidelines.

The design and installation standards of geothermal systems, including related wells and boreholes for the GHX, shall conform to applicable industry standards, including, but not limited to, those listed below by type of system, and shall comply with the Town of Binghamton Code:

All systems: the American National Standards Institute (ANSI), the International Ground Source Heat Pump Association (IGSHPA), the American Society for Testing and Materials (ASTM), the American Society of Heating, Refrigeration and Air Conditioning Engineers (ASHRAE), the Air-Conditioning and Refrigeration Institute (ARI), ACCA, Refrigeration Section of the International Building Code, and other similar certifying organizations. The manufacturer specifications shall be submitted as part of the application.

The individual piping loops and circuits, and fully constructed piping network for all geothermal systems shall be pressure tested for integrity of original material and joints prior to backfill in accordance with the manufacturer's instructions and the governing standards or guidelines.

Materials used to backfill horizontal GHXs and the buried, horizontal piping for vertical GHXs shall be suitable granular soil and shall be free from frozen lumps, ashes, refuse, vegetable or organic matter, rocks, or boulders over 150 mm (six inches) in any dimension, or other materials that may damage the piping. The backfilled excavations shall be compacted in accordance with industry standard practice and governing guidelines and regulations.

To avoid any cross-contamination, geothermal systems shall not be cross-connected with building plumbing or water systems.

Open loop systems: the National Ground Water Association (NGWA) and the American Water Works Association (AWWA).

Closed loop systems: the International Ground Source Heat Pump Association (IGSHPA) and the NGWA.

Direct exchange (DX) systems: the Canadian Standards Association (CSA), the National Association of Corrosion Engineers (NACE), the American Society of Mechanical Engineers (ASME) and in accordance with manufacturer's guidelines, methods and standards.

For closed loop systems, the following specifically apply:

Closed loop borefield installers must be trained and accredited by IGSHPA and certified by the piping manufacturer in polyethylene pipe heat-fusion or electro-fuse welding techniques, whichever is used.

Closed loop borefields that will supply greater than 50 tons of heating/cooling capacity must be designed by an IGSHPA certified geothermal designer in good standing with the IGSHPA.

To the extent possible, nontoxic, nonhazardous materials shall be used in all closed loop systems. If antifreeze solutions are used as a circulating fluid in the buried ground heat exchanger, only antifreeze recommended by IGSHPA such as methanol, ethanol and food-grade propylene glycol shall be permitted.

The borehole annulus (space between the borehole wall and the piping) shall be filled and sealed through its entire depth with a high-solids bentonite clay grout (at least 20% solids by weight), from the bottom of the borehole to the top using the tremie method of grouting.

All horizontal closed loop systems shall be no more than 20 feet deep.

For open horizontal loop systems, the following specifically apply:

Open loop system contractors must be registered with the NYSDEC for drilling and installing wells and installing and start-up of submersible pumps and a copy of a NYSDEC well completion report must be submitted after the installation of the wells.

Well drilling contractors must apprise state and local authorities of the location of wells installed as part of an open loop geothermal system.

Open loop systems with rated pumping capacity of greater than 45 gallons per minute (gpm), or systems of lesser capacity proposed on a site with existing water supply wells and for which the combined pumping capacity of proposed on a site with existing water supply wells and for which the combined pumping capacity of proposed and existing wells exceeds 45 gpm, must obtain a well permit from the NYSDEC Division of Water.

Open loop systems with a rated pumping capacity of greater than 45 gpm shall employ use of a plate-frame or shell-in-tube heat exchanger (HX) installed between the well piping and building hydronic loop to prevent cross-contamination of the return water by refrigerant, biocides, or corrosion inhibitors.

Heat pump coils and heat storage (HS) material of construction for open loop systems must be compatible with the ground water chemistry per manufacturer's limits.

Water extraction.

Open loop systems may utilize a waterway to the extent permissible under federal, state or local municipal laws or regulations.

Installation requirements for open loop wells shall be the same as those for potable water wells with respect to the means to prevent aquifer contamination (grouting, etc.), or in conformance with standards, regulations, or guidelines established by the Town Engineer, NYSDEC, NGWA, and AWWA.

Any water table drawdown caused by an extraction well or wells shall not cause harm to the environment or otherwise impact the use of existing water supply wells on neighboring properties.

Discharge of water.

Discharge of water from open loop systems into storm or sanitary sewer systems shall be prohibited, except upon written approval of the BCDHS, NYSDEC, or other authority having jurisdiction.

Discharge of water from open loop systems into a waterway or freshwater wetland is not allowed unless approved by applicable federal, state and local authorities.

Underground injection of water discharge from an open loop system shall be subject to the following conditions:

{1}	Returned water shall contain no treatment or additives or other introduced chemicals.
{2}	The return well shall recharge the same aquifer from which the supply water is extracted and recharge shall occur within 50 vertical feet of the supply well screen.
{3}	The return well shall discharge the water below the water table depth to prevent aeration of the return water which can lead to precipitation of iron or other minerals and premature plugging of the well screens.
{4}	The return well shall be located a minimum distance of 200 feet from wells on adjacent properties.
{5}	The return well shall be located a minimum distance of 100 feet from the on-site well.
{6}	The return well shall recharge the groundwater from which supply water is extracted.

[viii]

Return water practices shall not cause erosion, harm to the environment or flooding at the surface or other nuisance conditions on neighboring properties.

[ix]

Geothermal systems shall not encroach on public drainage, utility roadway or trail easements of any nature.

[x]

The use of open loop systems within identified wellhead protection areas is prohibited.

For DX systems, the following apply:

DX system contractors shall demonstrate that they have successfully completed a DX system installers training course and are certified by an applicable equipment and material manufacturer to install DX systems.

Piping and tubing shall be of a material equivalent to or better than type air conditioning refrigeration (ACR) piping, tubing and associated fittings in accordance with the appropriate ASTM standard and ASME standard.

Below-grade joints shall be purged with inert gas and brazed in accordance with American Welding Society (AWS) standards. Piping tubing and fittings shall be installed in accordance with CSA standards.

DX system contractors shall perform joining of all refrigerant connections per CSA standards.

All underground Type ACR piping and tubing shall have a cathodic protection system which shall be designed and installed in accordance with the appropriate CSA standards and local site-specific conditions.

For vertical DX boreholes that are drilled into saturated aquifer materials (below the water table), the borehole annulus shall be filled and sealed through its entire depth with a geothermal grout from the bottom of the borehole to the top using the tremie method of grouting per CSA standards.

Horizontal DX GHXs and vertical DX boreholes lying above the water table shall be backfilled and compacted as specified in Subsection D(3)(b)[2][a][i] of this section. Due consideration shall be given to settling of the excavated area.

As-built drawings. Upon completion of construction, a scaled as-built drawing must be provided showing the locations of buried wells, closed loops, DX boreholes and horizontal connector piping, triangulated from two points on the property such as a building corner or other permanent structure. Offsets must also be shown from the nearest property line, and on-site septic systems and private water wells.

Setbacks.

All horizontal closed loop systems shall be no more than 20 feet deep.

Unless otherwise specified, geothermal energy systems shall be located a minimum distance of 25 feet from any property line.

Aboveground equipment associated with geothermal pumps shall not be installed in the front yard of any lot or the side yard of a corner lot adjacent to a public right-of-way and shall meet all required setbacks for the applicable zoning district.

All geothermal energy systems shall be located a minimum distance of:

Ten feet from any water, sewage or utility line.

Ten feet from any building foundation.

Twenty-five feet from any potential source of contamination, such as underground fuel tanks, except a supply well in an open loop system shall be a minimum of 50 feet from such potential source of contamination.

Fifty feet from any storm water recharge structure.

Seventy-five feet from any sewage disposal structure, such as a septic tank or cesspool or leaching field, except a supply well in an open loop system shall be a minimum of 100 feet from such sewage disposal structure.

One hundred feet from potable water wells.

All setbacks or separation distances shall be verified by a qualified water supply engineer or hydrogeologist in order to protect against thermal impacts, water level drawdowns and groundwater impacts or structures.

Decommissioning.

If the geothermal system remains nonfunctional or inoperative for a continuous period of one year, the system shall be deemed to be abandoned and shall constitute a public nuisance. The owner shall remove the abandoned system at his/her expense in accordance with the below after obtaining a demolition permit.

Closed loop piping systems shall be decommissioned by flushing and filling the piping with potable water and capping off the ends. If the heat transfer fluid contains regulated materials (e.g., antifreeze, biocides or corrosion inhibitors), the heat transfer fluid shall be contained and disposed of in accordance with applicable regulations.

Open loop wells shall be decommissioned per NYSDEC requirements.

The heat pump and any external mechanical equipment shall be removed.

Pipes or coils below the land surface shall be filled with grout to displace the heat transfer fluid. The heat transfer fluid shall be captured and disposed of in accordance with applicable regulations. The top of the pipe, coil or boring shall be uncovered and grouted.

Water body geothermal systems shall be completely removed from the bottom of the body of water.

Appeals.

Any applicant desiring relief or exemption from any aspect or requirement of this chapter may request such from the Planning Board in the form of a formal written application with full supporting data and documentation, which application must be filed with the Planning Board within 30 days of a pre-application meeting, unless the relief or exemption is contained in the original application for site plan review or, in the case of an existing or previously granted site plan approval, a written request for modification of its facilities has been filed. Such relief may be temporary or permanent, partial or complete, at the sole discretion of the Planning Board. However, the burden of proving the need for the requested relief or exemption is solely on the applicant to prove the same to the satisfaction of the Planning Board. The applicant shall bear all costs of the Planning Board or the Town in considering the request, and the relief or exemption, if any, and to the extent granted, shall not be transferable to a new or different owner/operator for commercial ground-mounted solar energy systems without the specific written permission of the Planning Board. Such permission shall not be unreasonably withheld or delayed based on good cause shown. No such relief or exemption shall be approved unless the applicant demonstrates by clear and convincing evidence that, if granted, the relief or exemption will have no significant effect on the health, safety and welfare of the Town, its residents and other service providers.

If a permit for a solar energy system is denied because of a conflict with other laws, including zoning laws of the Town, the applicant may appeal to (or apply for relief or variance from) the Zoning Board of Appeals, which shall regard solar energy as a factor to be considered, weighed and balanced along with other factors, including the statutory factors for variances.

§ 240-57.3 (Reserved) [1]