Town of Lenox, NY Solar Energy Systems

Districts where allowed. Subject to the issuance of site plan approval and a special use permit and other requirements as set forth herein, solar farms shall not be a permitted use in any zoning district other than the Agricultural District (AG); Agricultural/Residential District (AR); Planned Development District (PD) and the Industrial/Manufacturing District (IM) within the Town.

Districts where prohibited. Solar farms shall be prohibited in the Residential District, Low-Density (RA); Residential District, Medium-Density (RB); Residential District, High-Density (RC); Residential/Mobile Home District (RM); Business/Commercial, Neighborhood District (BN); Business/Commercial, General District (BG); Business/Commercial, Recreational District (BR); Conservation/Outdoor Recreation District (CR); and the Major Highway District (HY).

Lot area and yard regulations. The following lot area and yard regulations shall apply to solar farms:

(1)

Minimum lot area: 15 contiguous acres.

(2)

Minimum front yard setback to fence: 250 feet.

(3)

Minimum rear yard setback to fence: 100 feet.

(4)

Minimum side yard setback to fence: 100 feet.

(5)

With the exception of screening, landscaping and/or plantings, nothing shall be permitted within the setback area. Also, additional setbacks may be required by the Planning Board in order to provide for the public's safety, health and welfare.

(6)

Each solar farm application shall demonstrate that the facility operator owns or controls sufficient land area to properly operate and maintain the facility.

(7)

No solar farm shall be permitted unless the Planning Board makes specific determinations that it will not have a significant impact on the community character of the area, will not impair any scenic viewshed, and will not be placed in a location that, along with any existing solar farms, will cause an oversaturation of such use in any neighborhood.

(8)

Avoid areas that substantially contribute to and are important to the scenic quality of the landscape.

(9)

Assess the availability and feasible use of alternative sites.

Permits required. No person, firm or corporation, or other entity being the owner, occupant, or lessee of any land or premises within the Town of Lenox shall use or permit the use of land or premises for the construction or installation of a solar farm without obtaining a building permit, a special use permit and a site plan approval issued by the Planning Board as hereinafter provided.

Special use permit criteria.

(1)

In addition to the criteria established in § 134-64, no solar farm shall be granted a special use permit unless the Planning Board makes the following determinations:

(a)

The proposed solar farm is in the best interest of the Town, the convenience of the community, the public welfare, and shall be an acceptable addition to the neighborhood.

(b)

The proposed solar farm is suitable for the property in question and designed, constructed, operated and maintained so as to be in harmony with and appropriate in appearance with the existing intended character of the general vicinity.

(c)

The proposed solar farm is suitable in terms of effect on street or highway traffic safety with adequate access arrangements.

(d)

The proposed solar farm will comply with all provisions and requirements of all other Town of Lenox local laws and regulations and will be consistent with any applicable comprehensive plan or master plan documents.

(e)

The proposed solar farm will not result in the release of harmful substances or any other nuisances, nor cause excessive noise, dust, odors, solid waste or glare.

(f)

The proposed solar farm will not cause undue traffic congestion, unduly impair pedestrian safety or overload existing roads, considering their current width, surfacing and condition.

(g)

The proposed solar farm will have appropriate parking and be accessible to fire, police and other emergency vehicles.

(h)

The proposed solar farm will not overload any public water, drainage or sewer system or any other municipal facility or service, including schools.

(i)

The proposed solar farm will not degrade any natural resource, ecosystem or historic resource.

(j)

The proposed solar farm will be suitable to such conditions on operation, design and layout of structures and provision of screening, buffer areas and off-site improvements as may be necessary to ensure compatibility with surrounding uses and to protect the natural, historic and scenic resources of the Town.

(k)

Scenic viewsheds. A solar farm shall not be installed in any location that would substantially detract from or block the view(s) of all or a portion of a recognized scenic viewshed, as viewed from any public road, right-of-way or publicly owned land within the Town of Lenox or that extends beyond the border of the Town of Lenox. For purposes of this subsection, consideration shall be given to any relevant portions of the current, amended and/or future Town of Lenox Comprehensive Plan and/or any other prior, current, amended and/or future officially recognized Town planning document or resource.

(l)

Emergency shutdown/safety. The applicant shall demonstrate the existence of adequate emergency/safety measures. The applicant shall post an emergency telephone number so that the appropriate entities may be contacted should any solar panel or other component of the solar farm need immediate repair or attention. This emergency telephone number should be clearly visible and in a location which is convenient and readily noticeable to someone likely to detect a problem.

(m)

No solar farm, or part thereof, shall be installed on or in any wetlands (including any applicable setback areas) as identified/defined by New York State Department of Environmental Conservation, U.S. Army Corps of Engineers, or local governing body if the installation of that solar farm requires an additional permit apart from this chapter from either the New York State Department of Environmental Conservation, U.S. Army Corps of Engineers or applicable regulatory agency. Any permit for such an installation on any lands containing such wetlands shall require a use variance from the Town of Lenox Zoning Board of Appeals, it being the intent to prohibit the installation of such uses on and in wetlands, including any required buffer areas and/or regulatory setbacks.

(n)

Security. All solar farms shall be secured to the extent practicable to restrict unauthorized access.

(o)

Access road. To the greatest extent possible, existing roadways shall be used for access to the site and its improvements. In the case of constructing any roadways necessary to access the solar farm, they shall be constructed in a way that allows for the passage of emergency vehicles in the event of an emergency. Each application shall be accompanied by correspondence from the responding fire department and emergency care provider as to the acceptability of the proposed ingress to and egress from the solar farm site. Access roads shall be at least 26 feet in width but upon good cause shown may be a minimum of 20 feet in width.

(p)

The development and operation of the solar farm shall not have a significant impact on fish, wildlife, animal or plant species or their critical habitats, or other significant habitats identified by the Town of Lenox or federal or state regulatory agencies.

(q)

The Planning Board will consider the location of solar farms in such a manner so that no one area or neighborhood in the Town shall be over-burdened by the placement of any proposed solar farm(s).

(r)

Screening, including plantings, berms, and other screening methods may be required to mitigate any impacts. Such plantings and screening shall be continuously maintained and replaced if dead, dying, or falling into disrepair.

(s)

Equipment specification sheets shall be documented and submitted to the Planning Board for all photovoltaic panels, significant components, mounting systems, batteries and inverters that are to be installed.

(t)

Noninvasive, native ground cover, under and between the rows of solar panels shall be low-maintenance, drought-resistant, non-fertilizer-dependent and shall be pollinator-friendly to provide a habitat for bees, birds, bats, and other insects or wildlife that pollinate flowering plants, and includes both wild and managed insects.

(u)

For community solar projects, the reviewing board has the authority to require that the applicant open subscription services to Town residents before offering subscriptions to others.

(v)

Waiver. The Planning Board may, upon exercise of its reasonable discretion, waive one or more of the submission requirements imposed herein. Relief from all other requirements must be made by way of an area or use variance from the Zoning Board of Appeals.

Site plan submission requirements.

(1)

The following submission requirements must be observed regarding a site plan application for a solar farm. The Planning Board may also require any of the requirements of § 134-68 as part of the submission.

(a)

A completed application form as supplied by the Town of Lenox for site plan approval for a solar farm.

(b)

Proof of ownership of the premises involved or proof that the applicant has written permission of the owner to make such application.

(c)

Plans and drawings of the proposed solar farm installation signed and stamped by a professional engineer registered in New York State showing the proposed layout of the entire solar farm along with a description of all components, whether on site or off site, existing vegetation and proposed clearing and grading of all sites involved, along with proposed screening and fencing. Clearing and/or grading activities are subject to review by the Planning Board and shall not commence until the issuance of site plan approval and written authorization from the Town's Code Enforcement Officer. The plans and development plan shall be drawn in sufficient detail and shall further describe:

[1]

Property lines and physical dimensions of the proposed site, including contours at five-foot intervals.

[2]

Location, approximate dimensions and types of all existing structures and uses on the site.

[3]

Location and elevation of the proposed solar farm and all components thereof.

[4]

Location of all existing aboveground utility lines within 1,200 linear feet of the site.

[5]

Where applicable, the location of all transmission facilities proposed for installation. All transmission lines and wiring associated with a solar farm shall be buried underground and include necessary encasements in accordance with the National Electric Code and Town requirements. The Planning Board may recommend waiving this requirement if sufficient engineering data is submitted by the applicant demonstrating that underground transmission lines are not feasible or practical. The applicant is required to show the locations of all proposed overhead electric utility/transmission lines (if permitted) and underground electric utility/transmission lines, including substations and junction boxes and other electrical components for the project on the site plan. All transmission lines and electrical wiring shall be in compliance with the public utility company's requirements for interconnection. Any connection to the public utility grid must be inspected by the appropriate public utility. The applicant shall provide as part of the application a letter or other written confirmation from the appropriate utility provider that the solar farm is capable of meeting the requirements for interconnection.

[6]

Location of all service structures proposed as part of the installation.

[7]

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 for screening purposes. The plan shall show any trees and/or vegetation which is proposed to be removed for purposes of providing greater solar access.

[8]

A berm, landscape screen, or any other combination acceptable to the Town capable of screening the site, shall be provided along any property line. When designated, such landscape screenings shall consist of evergreen trees of at least six feet in height at planting in a double row diagonally staggered six feet to eight feet apart as to allow for consistent screening. See Schedule A.[1]

[1]

Editor's Note: Said schedule is included as an attachment to this chapter.

[9]

Soil type(s) at the proposed site.

[10]

Submission of a written operation and maintenance plan for the proposed solar farm that include measures for maintaining safe access, operational maintenance of the solar farm, and general property upkeep, such as mowing and trimming and an agricultural soils preservation plan if applicable. The operation and maintenance plan shall be filed and recorded by the applicant in the Madison County Clerk's Office (indexed to the property) following approval of the site plan by the Planning Board.

[a]

Projects shall comply with the New York State Department of Agriculture and Markets Guidelines for solar energy Projects - Construction Mitigation for Agricultural Lands. Where an agricultural soils preservation plan has been approved as part of a project, it shall be a condition of any such approval that such agricultural component will be maintained as approved. (See also Schedule B "Solar Farm Guidelines" at the end of this article[2]).

[2]

Editor's Note: Said schedule is included as an attachment to this chapter.

[b]

Herbicides are prohibited except where the Planning Board finds it impractical to use mechanical means to control vegetation.

(d)

Photographic simulations shall be included showing the proposed solar farm along with elevation views and dimensions and manufacturer's specifications and photos of the proposed solar energy systems, solar collectors, solar panels and all other components comprising the solar farm from all neighboring properties and from other vantage points selected by the Planning Board.

(e)

When applicable, certification from a professional engineer or architect registered in New York State indicating that any building or structure to which a solar panel or solar energy system is affixed is capable of handling the loading requirements of the solar panel or solar energy system and various components.

(f)

One- or three-line electrical diagram detailing the solar energy system installation, associated components, and electrical interconnection methods, with all disconnects and over-current devices.

(g)

Documentation of access to the project site(s), including location of all access roads, gates, parking area, etc.

(h)

A plan for clearing and/or grading of the site and a stormwater pollution prevention plan (SWPPP) for the site. The SWPPP shall be filed and recorded in the Madison County Clerk's Office (indexed against the property) by the applicant following Planning Board approval (prior to commencement of construction) and shall provide for access to the Town of Lenox in the event of a default of the operator's obligations under the SWPPP. The SWPPP shall include a security amount approved by the Town's Consulting Engineer and shall remain in place until decommissioning is complete.

(i)

Documentation of utility notification, including an electric service order number.

(j)

Sunchart. Where deemed appropriate, the Planning Board may require that the applicant submit a sunchart for the proposed site indicating the sun angle for the southern boundary of the site for a minimum four-hour continuous period during the time of the highest sun angle on December 21, along with the potential for existing buildings, structures, and/or vegetation on the site or on adjacent sites to obstruct the solar skyspace of the proposed solar farm. The sunchart shall also indicate the potential for obstructions to the solar skyspace of the proposed solar farm under a scenario where an adjacent site is developed as otherwise permitted by the Town of Lenox laws and regulations with a building/structure built to maximum bulk and height at the minimum setback. Where no standards for setback are established, this scenario shall assume a maximum setback of five feet from the property line. The sunchart shall be kept on file at the Town Code Enforcement Office and determine the minimum setback required for any solar collectors from the south property line as well as the solar skyspace that should be considered when development of neighboring properties occurs. This section in no way places responsibility on the Town for guaranteeing the solar skyspace of a solar energy system in the event setbacks are waived at the applicant's request.

(k)

The manufacturer's or installer's identification and appropriate warning signage shall be posted at the site and be clearly visible.

(l)

Solar energy systems shall be marked in order to provide emergency responders with appropriate warning and guidance with respect to isolating the electric systems. Materials used for marking shall be weather-resistant. The marking shall be placed adjacent to the main service disconnect location clearly visible from the location where the lever is operated.

(m)

The average height of the solar panel array shall not exceed 15 feet measured from the ground and including any base or supporting materials. Neutral paint colors, materials and textures may be required for solar farm components, buildings and structures to achieve visual harmony with the surrounding area as approved by the Planning Board.

(n)

The design, construction, operation and maintenance of the solar energy system shall prevent the direction, misdirection and/or reflection of solar rays onto neighboring properties, public roads, public parks and public buildings.

(o)

Artificial lighting of solar farms shall be limited to lighting required for safety and operational purposes, shall be shielded from all neighboring properties and public roads, downcast and shall meet dark skies requirements.

(p)

Solar farms shall be enclosed by perimeter fencing to restrict unauthorized access, with "HIGH VOLTAGE" placards affixed every 50 feet, and as otherwise approved by the Planning Board. Style and type of fence shall be approved by the Planning Board as part of the site plan but shall be a minimum of seven feet in height.

(q)

Only signage used to identify the location of the solar farm as well as perimeter warning signs shall be allowed and such signage shall otherwise comply with the Town's sign regulations and requirements or as otherwise approved by the Planning Board.

(r)

All applications shall be accompanied by a full environmental assessment form for purposes of environmental review under the New York State Environmental Quality Review Act (SEQRA), including a visual impact analysis. The following additional material may be required by the Planning Board:

[1]

A digital-elevation-model-based project visibility map showing the impact of topography upon visibility of the project from other locations to a distance radius of three miles from the center of the project. Scaled use shall depict a three-mile radius as not smaller than 2.7 inches, and the base map shall be a published topographic map showing cultural features.

[2]

No fewer than four color photos taken from locations within a three-mile radius from the proposed location, as selected by the Planning Board and computer-enhanced to simulate the appearance of the as-built aboveground solar farm components as they would appear from these locations.

(s)

Applicant shall submit details of the proposed noise that may be generated by solar inverter fans or other solar farm components. The Planning Board may require a noise analysis to determine potential adverse noise impacts. To the extent practicable, equipment that produces noise determined to be above ambient noise levels during normal operation shall be placed in the center of the solar farm or at an adequate distance from the property line as determined by the Planning Board.

(2)

Site plan review criteria. In addition to the above, no site plan shall be approved unless the Planning Board determines that the proposed solar farm complies with the following:

(a)

The use is oriented in its location upon the site as to layout, coverage, screening, means of access and aesthetics so that:

[1]

The flow control and safety of traffic and human beings shall not be adversely affected to an unreasonable degree;

[2]

There is reasonable compatibility in all respects with any structure or use in the surrounding area, actual or permitted, which may be directly substantially affected;

[3]

There shall not be any unreasonable detriment to any structure or use, actual or permitted, in the surrounding area;

[4]

There is a reasonable provision for open space and yard areas as appropriate to the surrounding area.

[5]

That the removal of existing trees larger than six inches in diameter has been minimized to the extent possible.

[6]

That it has been demonstrated that the establishment of the proposed solar facility will not have negative impacts to surrounding property values as established by competent evidence.

(b)

The Planning Board shall consider recommendations from the Town Code Enforcement Officer and Fire Marshal during the site plan review with respect to safety and emergency response.

Public hearing. No action shall be taken by the Planning Board to issue a site plan approval or special use permit in relation to an application for a solar farm until after public notice and a public hearing. Proper notice of a hearing before a board shall be given by legal notice published in the official newspaper of the Town of Lenox at least five days before the date set for such public hearing(s) and written notice mailed to the applicant or his agent at the address given in the application to be considered. The applicant shall be responsible for notifying, by certified mail, all property owners of record within 500 feet of the outside perimeter of the boundary line of the property involved in the application of the time, date and place of such public hearing at least 10 days prior to such hearing. Notice shall be deemed to have been given if mailed to the property owner at the tax billing address listed on the property tax records of the assessing unit or at the property address. At least seven days prior to such hearing, the applicant shall file with the Board his/her affidavit verifying the mailing of such notices. Failure of the property owners to receive such notice shall not be deemed a jurisdictional defect.

Compliance with New York State Uniform Fire Prevention and Building Code. Building permit applications shall be accompanied by standard drawings of structural components of the solar farm and all its components (including but not limited to solar panel, solar collector, solar energy system, etc.). Drawings and any necessary calculations shall be certified, in writing, by a New York State registered professional engineer that the system complies with the New York State Uniform Fire Prevention and building Code. This certification would normally be supplied by the manufacturer. Where the structure, components or installation vary from the standard design or specification, the proposed modification shall be certified by a New York State registered professional engineer for compliance with the structural design provisions of the New York State Uniform Fire Prevention and Building Code.

Compliance with state, local and national electric codes.

(1)

Building permit applications shall be accompanied by a line drawing identifying the electrical components of the solar farm to be installed in sufficient detail to allow for a determination that the manner of installation conforms with the National Electric Code. The application shall include a statement from a New York State registered professional engineer indicating that the electrical system conforms with good engineering practices and complies with the National Electric Code, as well as applicable state and local electrical codes. This certification would normally be supplied by the manufacturer. All equipment and materials shall be used or installed in accordance with such drawings and diagrams.

(2)

Where the electrical components of an installation vary from the standard design or specifications, the proposed modifications shall be reviewed and certified by a New York State registered professional engineer for compliance with the requirements of the National Electric Code and good engineering practices.

Following construction/installation of the solar farm, all disturbed areas where soil has been exposed shall be reseeded with grass and/or planted with low-level vegetation capable of preventing soil erosion and airborne dust and demonstrating established growth. Every operations and maintenance plan shall include provisions for reseeding and established growth.

Postconstruction/installation certification. Following the construction/installation of the solar farm, the applicant shall provide a postconstruction/installation certification from a professional engineer registered in New York State that the project complies with any and all applicable codes and industry practices and has been constructed and operating according to the drawings and development plan(s) submitted to and approved by the Town.

Insurance. The applicant, owner, lessee or assignee shall at all times during construction and operation maintain a current insurance policy which will cover installation and operation of the solar farm and shall be increased annually per industry standards. Said policy shall provide a minimum of $5,000,000 property and personal liability coverage. Proof of such policy shall be provided to the Town on an annual basis. Notwithstanding any terms, conditions, or provisions in any other writing between the parties, the applicant shall agree to effectuate the naming of the Town as an additional insured on the applicant's insurance policies, with the exception of workers' compensation and NYS disability insurance. The policy naming the Town as an additional insured shall:

(1)

Be an insurance policy from an A.M. Best rated "secured" or better insurer, authorized to conduct business in New York State. A New York State licensed insurer is preferred.

(2)

State that the applicant's insurance coverage shall be primary and noncontributory coverage for the Town, its Board, employees, agents, and volunteers.

(3)

Additional insured status shall be provided by standard or other endorsements that extend coverage to the Town for both ongoing and completed operations. A completed copy of the endorsements shall be attached to the certificate of insurance.

(4)

The applicant shall provide a copy of the declaration page of the liability policies with a list of endorsements and forms. If so requested, the applicant will provide a copy of the policy endorsements and forms.

(5)

The certificate of insurance shall contain a provision that coverage afforded under the applicable policy shall not be cancelled or terminated until at least 30 days' prior notice has been provided to the Town. In the event of a termination, cancellation, or lapse of the required insurance coverage, the site plan approval to operate the solar energy system shall be immediately suspended and operation of the system shall cease. Upon restoration of the required insurance coverage, to the satisfaction of the Town, permission to operate the solar farm may be restored.

Inspections. The Building Inspector, Code Enforcement Officer and/or Town Engineer shall have the right at any reasonable time to enter, in the company of the owner or his agent, the premises on which a solar farm is being or is constructed, to inspect all parts of said solar farm installation and require that repairs or alterations be made if, in his judgment, there exists a deficiency in the operation or the structural stability of the solar farm or any component thereof. If necessary, the Building Inspector or Town Engineer may order the system secured or to otherwise cease operation. It shall not be required that the owner or agent be present in the event of an emergency situation involving danger to life, limb or property.

Power to impose conditions. In granting any site plan approval or special use permit for a solar farm, the Planning Board may impose reasonable conditions to the extent that such Board finds that such conditions are necessary to minimize any adverse effect or impacts of the proposed use on neighboring properties and to protect the general health, safety and welfare of the Town.

Continued operation. A solar farm shall be maintained in operational condition at all times, subject to reasonable maintenance and repair outages. Operational condition includes meeting all approved requirements and conditions. Further, the Code Enforcement Officer shall also have the right to request documentation from the owner/operator of a solar farm regarding the solar farm's operation/usage at any time.

Decommissioning and removal of solar farm facilities. The following shall be the minimum requirements to be addressed for the decommissioning of every solar farm:

(1)

The submission of an acceptable decommissioning plan and decommissioning bond or cash security subject to review by the Town's consulting attorneys and engineers and approved by the Town of Lenox. For purposes of the decommissioning plan and decommissioning bond or cash security, the following shall constitute "decommissioning events" triggering the decommissioning of the site and/or a call on the decommissioning bond or cash security: a) if construction and installation of the project improvements are not completed within 18 months of commencement of construction (such time period may be reasonably extended upon notification to the Town and with good cause shown for any delays in completion); b) if the solar energy facility ceases to be used for its intended purpose for 12 consecutive months (such time period may be reasonably extended upon notification to the Town with good cause shown); c) at the time of decommissioning, complete removal of the project within 90 days thereafter, except for any portions of the project access roads otherwise requested by the owner to remain to facilitate agricultural access to the property or conduit buried more than four feet below ground; d) upon the end of the project's operation; e) if the applicant, or its successors or assigns, seeks dissolution or files for bankruptcy; or f) failure to have in place or timely replace adequate decommissioning securities. Renewal securities shall be in place 90 days prior to the expiration of any existing securities. Such reasonable extensions as noted above may be granted upon a demonstration that said delay or default is caused by forces outside of the applicant's control. All decommissioning activities shall be completed to the reasonable satisfaction of the Town, and consistent with the decommissioning plan. Such agreement shall also include a commitment by the applicant to impose a similar obligation to remove any unused and/or obsolete solar panels upon any person subsequently securing rights to relocate the solar panels. The applicant shall include the following binding terms in the decommission plan, at a minimum, the following:

(a)

Complete removal of aboveground and below-ground equipment, fencing, structures, and foundations and any other installed infrastructure including plantings, landscaping and screening.

(b)

Restoration of the surface grade and soil after removal of equipment to the condition (or better), which it existed prior to the installation. This includes adding an adequate layer of topsoil where existing topsoil has been removed or eroded, and reseeding and/or reforestation of areas that were cleared of mature trees (with established growth demonstrated).

(c)

Replanting/replacement of trees destroyed or lost in the decommissioning process with a species that will be capable of reestablishment after 25 years from the planting (for those trees installed by the developer).

(d)

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

(e)

Specifically address: the useful lifespan of proposed solar facility and any storage batteries; the current New York State and federal rules and regulations regarding placement thereof and disposal thereof at the end of their useful lifespan; together with plans for replacement of solar storage batteries. The financial surety required by the Town shall take into account maintenance, replacement, and disposal of solar storage batteries if included in the application for a solar farm.

(f)

Road remediation costs associated with decommissioning/removal of the project.

(g)

Such decommissioning plan shall be executed by the applicant and the property owner and shall be recorded against the property in the Madison County Clerk's Office.

(2)

All decommissioning activities shall be completed to the reasonable satisfaction of the Town in consultation with the property owner, and consistent with the decommissioning plan.

(3)

Such decommissioning plan shall also include a commitment by the applicant to impose a similar obligation to remove any unused and/or obsolete solar panel (as detailed herein upon any person subsequently securing rights to relocate the solar panels. The applicant or property owner shall also submit written notice to the Town within 30 days of any person subsequently securing rights to relocate the solar panels or otherwise gaining ownership of the solar panels).

(4)

Bond/security. The applicant shall be required to execute and file with the Town Clerk a bond, or cash security acceptable to the Town Attorney and Engineer in favor of the Town, in an amount sufficient for the faithful performance of the terms and conditions of the permit issued under this article, and to provide for expenses associated with the decommissioning removal and restoration of the site subsequent to the removal of the solar farm. The bond must be issued by a company which has a "AAA" Standard & Poor's (S&P) and Fitch Ratings bond rating, a Moody's Investors Service's rating of "AAA," and can demonstrate sufficient assets to cover the bond. The amount of the bond or cash security shall be no less than 150% of the cost of the removal of the solar panels and restoration of the site, shall be in writing for non-cancellable term equivalent to the estimated life of the project, and shall further be reviewed and adjusted at said five-year increments. The applicant or then owner of the project shall be responsible for any legal and/or engineering fees incurred by the Town in reviewing and adjusting the bond or cash security at said five-year increments. Such amounts of the bond or cash security shall account for inflation and prevailing wage costs for decommissioning. In the event of a default upon performance of such conditions or any of them, the bond or cash security shall be forfeited to the Town, upon demand. The bond or cash security shall remain in full force and effect until the complete removal of the solar panels and site restoration is finished.

Time limit on completion. After the granting of a special permit of a solar farm with concurrent site plan approval, the building permit shall be obtained within six months and the project shall be substantially completed within 12 months. If not constructed, the special permit and/or site plan approval shall automatically lapse within 12 months after the date of the approval by the Town of Lenox Planning Board.

Complaint process. During construction, the Town Code Enforcement Officer may issue a stop-work order at any time for any violations of a special permit or building permit. After construction is complete, the permit holder of a solar farm shall establish a contact person, including name and phone number, for receipt of any complaint concerning any permit or operation of the solar farm.

Fees. Fees for applications and permits under this section shall be established by resolution of the Town Board of the Town of Lenox. It shall be the applicant's responsibility to reimburse the Town for any and all reasonable and necessary legal, engineering and other professional fees incurred by the Town in reviewing and administering an application and operation of a solar farm under this article.

Road remediation. The applicant shall be responsible for remediation of any roads damaged, during the construction of and/or completion of the installation (or removal) of any solar farms approved pursuant to this article. The Highway Superintendent or other official designated by the Town Board is hereby authorized and directed to ensure a public improvement (road repairs) bond or cash security be posted prior to the issuance of any building permit in an amount sufficient to compensate the Town for any damage to local roads that is not corrected by the applicant. The Highway Superintendent or other official designated by the Town Board is authorized to consult with any necessary professional to determine or confirm the bond or cash security amount all at the sole cost and expense of the applicant. Such cash security shall be in addition to other securities required in this article.

Agricultural resources. For projects located on agricultural lands:

(1)

Solar farm applicants 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 applicants shall use native plant species and seed mixes.

(2)

Fencing and watering systems associated with rotational grazing systems and reduction in farmland viability due to the reduction in remaining productive farmland shall be assessed and mitigated to the greatest extent possible.

(3)

Structures for overhead collection lines, interconnect cables and transmission lines installed aboveground (when unavoidable) shall be located outside agricultural field boundaries. When aboveground cables and transmission lines must cross agricultural fields, applicant shall use taller structures that provide longer spanning distances and locate poles on field edges to the greatest extent practicable.

(a)

All buried electric cables in cropland, hay land and improved pastures shall have a minimum depth of 48 inches of cover. At no time is the depth of cover to be less than 24 inches below the soil surface.

(b)

The Madison County Planning Department is to be consulted concerning the type of intercept drain lines whenever buried electric cables alter the natural stratification of soil horizons and natural soil drainage patterns.

(4)

Access roads are to be located along the edge of agricultural fields, in areas next to hedgerows and field boundaries, and in the nonagricultural portions of the site.

(5)

There shall be no cut and fill so as to reduce the risk of creating drainage problems by locating access roads, which cross agricultural fields, along ridge tops and by following field contours to the greatest extent possible.

(6)

The width of access roads across or along agricultural fields is to be no wider than 20 feet so as to minimize the loss of agricultural lands and comply with the New York State Fire Code.

(7)

The surface of solar farm access roads to be constructed through agricultural fields should be level with the adjacent field surface where possible.

(8)

All existing drainage and erosion control structures such as diversions, ditches, and tile lines shall be preserved, and applicants shall take appropriate measures to maintain the design and effectiveness of these structures. Applicants shall repair any structure disturbed during construction to as close to original condition as possible unless such structures are to be eliminated based upon an approved site plan for the solar farm.

(9)

Culverts and water bars are to be installed to maintain natural drainage patterns.

(10)

All topsoil areas to be used for vehicle and equipment traffic, parking, equipment laydown, and as storage areas are to be stripped.

(11)

All topsoil stripped from work areas (parking areas, electric cable trenches, along access roads) is to be stockpiled separate from other excavated materials (rock and/or subsoil).

(12)

Where an open trench is required for cable installation, topsoil stripping from the entire work area may be necessary. As a result, additional workspace may be required as part of site plan approval.

(13)

A maximum of 50 feet of temporary workspace is to be provided along open-cut electric cable trenches for proper topsoil segregation. All topsoil will be stockpiled immediately adjacent to the area where stripped/removed and shall be used for restoration on that particular site. No topsoil shall be removed from the site. The site plan shall clearly designate topsoil stockpile areas in the field and on the construction drawings.

(14)

All vehicle and equipment traffic and parking to the access road and/or designated work areas, such as laydown areas, are to be limited in size to the greatest extent practical.

(15)

No vehicles or equipment are to be allowed outside the work area without prior approval from the EM.

(16)

In pasture areas, it is necessary to construct temporary or permanent fences around work areas to prevent livestock access, consistent with any applicable landowner agreements.

(17)

Excess concrete used in the construction of the site is not to be buried or left on the surface in active agricultural areas. Concrete trucks will be washed outside of active agricultural areas.

(18)

Restoration requirements. Applicants shall restore all agricultural lands temporarily disturbed by construction as follows:

(a)

Be decompacted to a depth of 18 inches with a deep ripper or heavy-duty chisel plow. Soil compaction results should be no more than 250 pounds per square inch (PSI) as measured with a soil penetrometer. In areas where the topsoil was stripped, soil decompaction should be conducted prior to topsoil replacement. Following decompaction, removal of all rocks four inches in size or greater from the surface of the subsoil shall occur prior to replacement of topsoil. Topsoil shall be replaced to original depth and original contours reestablished where possible. All rocks shall be removed that are four inches and larger from the surface of the topsoil. Subsoil decompaction and topsoil replacement shall be avoided after October 1 of each year.

(b)

Regrade all access roads to allow for farm equipment crossing and to restore original surface drainage patterns, or other drainage pattern incorporated into the approved site design by the Planning Board, as applicable.

(c)

Seed all restored agricultural areas with the seed mix specified by the EM and this article, in order to maintain consistency with the surrounding areas.

(d)

All damaged subsurface or surface drainage structures are to be repaired to preconstruction conditions, unless said structures are to be removed as part of the site plan approval. All surface or subsurface drainage problems resulting from construction of the solar energy project shall be remedied with the appropriate mitigation measures as determined by the EM.

(e)

Postpone any restoration practices until favorable (workable, relatively dry) topsoil/subsoil conditions exist. Restoration is not to be conducted while soils are in a wet or plastic state of consistency. Stockpiled topsoil should not be regraded, and subsoil should not be decompacted until plasticity, as determined by the Atterberg Limits and Field Test, is adequately reduced. No project restoration activities are to occur in agricultural fields between the months of October and May unless favorable soil moisture conditions exist.

(f)

Following site restoration, remove all construction debris from the site.

(g)

Following site restoration, the project sponsor is to provide a monitoring and remediation period of no less than two years. General conditions to be monitored include topsoil thickness, relative content of rack and large stones, trench settling, crop production, drainage and repair of severed subsurface drain lines, fences, etc.

(h)

Mitigate any topsoil deficiency and trench settling with imported topsoil that is consistent with the quality of topsoil on the affected site. All excess rocks and large stones are to be removed from the site.

(i)

All concrete piers, footers, or other supports are to be completely removed.

Payment in lieu of tax ("PILOT") agreement and Host Community Benefit Program.

(1)

In every instance of a solar farm application, the Town of Lenox hereby requires the applicant to enter into a payment in lieu of tax ("PILOT") agreement. Notwithstanding this PILOT requirement, the applicant shall still be required to observe the requirements of Real Property Tax Law § 487 relative to notification of a proposed solar facility. Such notification shall be sent to the Town of Lenox Supervisor, with a copy to the Town Clerk, by registered and U.S. First Class Mail and shall specifically state in bold lettering on the envelope and on the first page of the notice that the notice is being provided pursuant to New York State Real Property Tax Law § 487(2). Upon receipt of said notice, the Town of Lenox will advise the applicant of the Town's desire for a payment in lieu of tax ("PILOT") agreement. Said notice will direct the applicant to contact the Town's legal counsel to negotiate the terms of said Agreement.

(2)

In addition to a PILOT agreement, the applicant shall propose to the Town, on projects involving two megawatts and above, a host community benefit package for consideration by the Town Board as part of the approval process. This agreement shall be in addition to a PILOT agreement.

Reference to Article 94-c. Any proposed solar energy system subject to review by the New York State Board on Electric Generation Siting and the Environment pursuant to Article 10 of the New York State Public Service Law, or the Office of Renewable energy Siting pursuant to Article 94-c of the New York State Executive Law, shall be subject to all substantive provisions of this article and any other applicable provisions of the Town of Lenox Town Code and/or local laws.

Adhere to Solar Farm Guidelines. In addition to the above regulations, all solar farm applicants shall demonstrate to the Planning Board compliance with the attached solar farm Guidelines.[3]

[3]

Editor's Note: Said guidelines are included as an attachment to this chapter.