[HISTORY: Adopted by the Town Board of the Town of Somerset 1-5-2022 by L.L. No. 2-2022. Amendments noted where applicable.]
The Town Board of the Town of Somerset enacts this Battery Storage
System chapter under the authority granted by:
A.
Article IX of the New York State Constitution, § 2(c)(6)
and (10).
B.
New York Statute of Local Governments, § 10, Subdivisions
1, 6 and 7.
C.
New York Municipal Home Rule Law, § 10, Subdivision 1(i)
and (ii), and § 10, Subdivision 1(ii)a(6), (11), (12) and
(14).
D.
The supersession authority of New York Municipal Home Rule Law, § 10,
Subdivision 1(ii)d(3), specifically as it relates to determining which
body shall have power to grant variances under this section, and what
variances may be granted to the extent such grant of power is different
than under Town Law §§ 267 and 274-b, and as it relates
to the power of the Town Board to regulate land use within the Town
to the extent the provisions of this chapter differ from the authority
granted to the Town by Article 16 of the Town Law.
E.
New York Town Law, Article 16 (Zoning).
F.
New York Town Law § 130, Subdivision 1 (Building code),
Subdivision 3 (Electrical code), Subdivision 5 (Fire prevention),
Subdivision 7 (Use of streets and highways), Subdivision 7-a (Location
of driveways), Subdivision 11 (Peace, good order and safety), Subdivision
15 (Promotion of public welfare), Subdivision 15-a (Excavated lands),
Subdivision 16 (Unsafe buildings), Subdivision 19 (Trespass), and
Subdivision 25 (Building lines).
G.
New York Town Law § 64, Subdivision 17-a (protection of
aesthetic interests), and Subdivision 23 (General powers).
H.
New York Real Property Tax Law § 487.
I.
Police powers of the Town of Somerset; and the laws of the State
of New York.
A.
The Town Board of the Town of Somerset recognizes that battery energy
storage is a clean, readily available and renewable energy source,
and the Town of Somerset intends to accommodate the use of battery
energy storage systems. However, the Town Board finds a growing need
to properly site all types of battery energy systems within the boundaries
of the Town of Somerset to protect residential, business areas and
other land uses, to preserve the overall beauty, nature and character
of the Town of Somerset, to promote the effective and efficient use
of battery energy resources, and to protect the health, safety and
general welfare of the citizens of the Town of Somerset.
B.
This Battery Energy Storage System Law is adopted to advance and
protect the public health, safety, welfare, and quality of life of
the Town of Somerset by creating regulations for the installation
and use of battery energy storage systems, and to be consistent with
the Town's Comprehensive Plan and Local Waterfront Revitalization
Program (LWRP) with the following objectives:
(1)
To provide a regulatory scheme for the designation of properties
suitable for the location, construction and operation of battery energy
storage systems.
(2)
To ensure compatible land uses in the vicinity of the areas affected
by battery energy storage systems.
(3)
The Comprehensive Plan sets basic Town policies for protecting the
Town's important drainage features: the creeks, the floodplains
and the wetlands. To mitigate the impacts and damage of battery energy
storage systems on environmental resources such as important agricultural
lands, forests, wildlife and other protected resources, and to minimize
the adverse impacts on the Town's character and environment and
economy, health and safety of the Town's residents, and property
values; to minimize negative impacts on the unique resources, including,
but not limited to, the Seaway Trail, the Lake Ontario shoreline corridor
and adjacent lands and waterways and the residential and farming communities
of the Town. These features add natural beauty to the Town and provide
important habitats for wildlife.
(4)
To protect the health and economic well-being of residents, farms
and businesses of the Town in the event of an explosion or fire.
(5)
Battery energy storage systems need to be regulated from permitting
through construction and ultimately for their removal when no longer
utilized.
C.
The Town Board of the Town of Somerset makes the following findings:
(1)
Shortsighted planning has often resulted in creation of problem industries
which adversely affect public health and quality of life; examples
are found in Somerset, as well as many other areas of New York State,
where abandoned buildings and brownfields exist, health has been adversely
affected, pollution has been proliferated, quality of life has been
diminished, aesthetics have been compromised and community character
has been degraded. Battery energy storage system facilities are not
exempt from these problems, and careful siting and protections are
of paramount importance. Local communities have, through zoning, site
plan approval, regulation and careful planning, been primary protectors
of their citizenry. This chapter will contribute to this effort. The
existence of Article 10 of the Public Service Law and Section 94-c
of the Executive Law does not negate this responsibility, and in fact
recognizes it. Further, Article 10 and Section 94-c remain untested
by judicial review addressing several potential legal issues. This
section is not unduly burdensome to the mandates or the process set
forth in Article 10 and Section 94-c but is rather compatible with
them.
(2)
The findings set forth in this section are cumulative and interactive
and shall be liberally interpreted in conjunction, one with another.
(a)
Battery energy storage systems have increased significantly
in number and can potentially be sited without sufficient regard to
their impact on the health, welfare and safety of residents, especially
in small rural communities.
(b)
The Town of Somerset is a rural community devoid of large hills
and consists of mostly flat terrain.
(c)
The Town of Somerset is an agricultural community supporting
varied agricultural uses and is in the heart of Western New York's
fruit growing region.
(d)
The Town of Somerset has very few tall structures.
(e)
The Town of Somerset is bordered on the north by Lake Ontario
and on the east, south and west by towns which share Somerset's
agricultural and rural residential character and are similarly low,
flat areas.
(f)
The only other municipality in the Town of Somerset is the Village
of Barker, which is a small village bedroom community, and which is
also part of the rural, residential community devoid of high structures.
(g)
If not properly regulated, installation of battery energy storage
systems can create drainage problems through erosion and lack of sediment
control for facility and access road sites and can harm farmland through
improper construction methods.
(h)
Battery energy storage systems, when improperly sited, are known
to adversely affect property values and cause economic hardship to
property owners.
(i)
The Town of Somerset contains clusters and stretches of homes,
including along the Lake Ontario shoreline, in and around the Village
of Barker and West Somerset, along Route 18 and Lake Road, as well
as dispersed residences which residents have chosen as their homes,
often because of a love for a rural-pastoral lifestyle.
(j)
Battery energy storage systems may be significant sources of
noise, including infrasound, that, if unregulated, can negatively
affect quiet enjoyment of the area, properties, and the health and
quality of life of residents.
(k)
Construction of battery energy storage systems can create traffic
problems and can cause damage to local roads and infrastructure due
to the weight of the units.
(l)
Battery energy storage systems have the potential to cause electromagnetic
interference with various types of communications.
(m)
Battery energy storage systems need to be regulated for removal
when no longer utilized.
(n)
Funding and mechanisms for removal of battery energy storage
systems when the facilities are no longer operating need to be in
place.
(o)
The Town of Somerset Local Waterfront Revitalization Program
and Law have been considered and reviewed for compliance; the Town
of Somerset Comprehensive Plan has been considered and complied with;
and an ad hoc committee was appointed to review the need for this
chapter and to make recommendations; and its conclusions and recommendations
have been duly considered and given great weight.
(p)
When considering large-scale construction and maintenance, due
weight should be given to the following:
[1]
The relative distress caused to a community and its residents;
[2]
The actual necessity for such facility given energy production
in the area and region, including clean energy production;
[3]
Past and present stresses and disruption imposed upon an area
due to all types of energy production;
[4]
Alternatives to facilities, including location in other areas,
location in areas where demand is needed, and alternative methods
of producing clean energy;
[5]
Location in areas of highest consumption; and
[6]
The burden on a community and its residents versus reward to
the community and its residents, with emphasis upon quality of life.
As used in this chapter, the following terms shall have the
meanings indicated:
American National Standards Institute.
An electronic system that protects energy storage systems
from operating outside their safe operating parameters and disconnects
electrical power to the energy storage system or places it in a safe
condition if potentially hazardous temperatures or other conditions
are detected.
One or more devices, assembled together, capable of storing
energy in order to supply electrical energy at a future time, not
to include a standalone twelve-volt car battery or an electric motor
vehicle. A battery energy storage system is classified as a Tier 1,
Tier 2 or Tier 3 battery energy storage system as follows:
Tier 1 battery energy storage systems have an aggregate energy
capacity less than or equal to 600kWh that are an accessory use or
structure to the principal use; and, if in a room or enclosed area,
consist of only a single energy storage system technology.
Tier 2 battery energy storage systems have an aggregate energy
capacity greater than 600kWh and less than 1m Wh that are an accessory
use or structure to the principal use and are generating electricity
to be used on site. These systems may be either in a room or an enclosed
area.
Tier 3 battery energy storage systems (utility/industrial grade
system) are systems that are associated with a large-scale solar or
wind energy system and are designed with a purpose to store energy
and then put that energy back into the power grid and have an aggregate
energy capacity less than 1m Wh.
A special building permit application specifically created
for battery energy storage system projects.
A single cell or a group of cells connected together electrically
in series, in parallel, or a combination of both, which can charge,
discharge, and store energy electrochemically. For the purposes of
this chapter, batteries utilized in consumer products are excluded
from these requirements.
The basic electrochemical unit, characterized by an anode
and a cathode, used to receive, store, and deliver electrical energy.
A systematic process that provides documented confirmation
that a battery energy storage system functions according to the intended
design criteria and complies with applicable code requirements.
A building that is built for the primary intention of housing
battery energy storage system equipment, is classified as Group F-1
occupancy as defined in the International Building Code, and complies
with the following:
The building's only use is battery energy storage, energy
generation, and other electrical-grid-related operations.
No other occupancy types are permitted in the building.
Occupants in the rooms and areas containing battery energy storage
systems are limited to certified personnel that operate, maintain,
service, test, and repair the battery energy storage system and other
energy systems.
Administrative and support personnel are permitted in areas
within the buildings that do not contain battery energy storage system,
provided the following:
The areas do not occupy more than 10% of the building area of
the story in which they are located.
A means of egress is provided from the administrative and support
use areas to the public way that does not require occupants to traverse
through areas containing battery energy storage systems or other energy
system equipment.
The New York State Energy Conservation Construction Code
adopted pursuant to Article 11 of the Energy Law, as currently in
effect and as hereafter amended from time to time.
The fire code section of the New York State Uniform Fire
Prevention and Building Code adopted pursuant to Article 18 of the
Executive Law, and New York State Fire Code 1206, as currently in
effect and as hereafter amended from time to time.
A New York State program designed to work with local governments
to promote effective and sustainable regulation of waterfront areas
in a manner consistent with state and federal coastal zone management,
while addressing local and regional waterfront issues. Goals of the
program are to improve water quality and natural areas; provide for
revitalization of underutilized waterfronts; guide development to
areas with adequate infrastructure and services and away from sensitive
resources; and promote public waterfront access. New York State towns
that reside along the shore of a body of water are eligible to have
a local revitalization plan.
A United States Department of Labor designation recognizing
a private sector organization to perform certification for certain
products to ensure that they meet the requirements of both the construction
and general industry OSHA electrical standards.
National Electric Code.
National Fire Protection Association.
All buildings that contain a battery energy storage system
and do not comply with the dedicated-use building requirements.
Any property that is not a participating property.
Any residence located on non-participating property.
Any building in Occupancy Group A, B, E, I, R, as defined
in the International Building Code, including but not limited to schools,
colleges, day-care facilities, hospitals, correctional facilities,
public libraries, theaters, stadiums, apartments, hotels, and houses
of worship.
A battery energy storage system host property or any real
property that is the subject of an agreement that provides for the
payment of monetary compensation to the landowner from the battery
energy storage system owner (or affiliate) regardless of whether any
part of a battery energy storage system is constructed on the property.
Underwriters Laboratory, an accredited standards developer
in the United States.
The New York State Uniform Fire Prevention and Building Code
adopted pursuant to Article 18 of the Executive Law, as currently
in effect and as hereafter amended from time to time.
An uninterruptible power supply or uninterruptible power
source is an electrical apparatus that provides emergency power to
a load when the input power source or main power fails. A UPS differs
from an auxiliary or emergency power system or standby generator in
that it will provide near-instantaneous protection from input power
interruptions, by supplying energy stored in batteries, supercapacitors,
or flywheels. The on-battery run-time of most uninterruptible power
sources is relatively short but sufficient to start a standby power
source or properly shut down the protected equipment. It is a type
of continual power system.
The requirements of this chapter shall apply to all battery
energy storage systems permitted, installed, or modified in Town of
Somerset after the effective date of this chapter, excluding general
maintenance and repair.
A.
Battery energy storage systems constructed or installed prior to
the effective date of this chapter shall not be required to meet the
requirements of this chapter.
B.
Modifications to, retrofits or replacements of an existing battery
energy storage system that maintain or increase the total battery
energy storage system designed discharge duration or power rating
shall be subject to this chapter.
C.
The applicant shall pay the costs of the Town's engineers and
attorneys for time spent reviewing and analyzing the application.
A.
A building permit and an electrical permit shall be required for
installation of all battery energy storage systems.
B.
Issuance of permits and approvals by the Somerset Planning Board
shall include review pursuant to the State Environmental Quality Review
Act [ECL Article 8 and its implementing regulations at 6 NYCRR Part
617 ("SEQRA")].
C.
Liability insurance to protect the health and safety of the homeowner,
neighbors and first responders will be required for Tier 2 and Tier
3 battery energy storage system tiers.
D.
All battery energy storage systems, all dedicated-use buildings,
and all other buildings or structures that: 1) contain or are otherwise
associated with a battery energy storage system; and 2) are subject
to the New York State Fire Code 1206, Uniform Code and/or the Energy
Code shall be designed, erected, and installed in accordance with
all applicable provisions of the Uniform Code, all applicable provisions
of the Energy Code, and all applicable provisions of the codes, regulations,
and industry standards as referenced in the Fire Code, Uniform Code,
the Energy Code, and the Town Code. All materials within the insulation
of the battery containers and the chosen ventilation and suppression
system shall only contain noncombustible materials. All battery storage
systems must use a single type of battery cell and not a mixture of
battery cells or types.
E.
Work to be in accordance with construction documents. All work shall
be performed in accordance with the construction documents which were
submitted with and accepted as part of the application for the building
permit. The building permit shall contain such a directive. The permit
holder shall immediately notify the Code Enforcement Officer of any
change occurring during the course of the work. The building permit
shall contain such a directive. If the Code Enforcement Officer determines
that such change warrants a new or amended building permit, such change
shall not be made until and unless a new or amended building permit
reflecting such change is issued.
F.
Revocation or suspension of building permits. If the Code Enforcement
Officer determines that a building permit was issued in error because
of incorrect, inaccurate or incomplete information, or that the work
for which a building permit was issued violates the Uniform Code or
the Energy Code, the Zoning Code or any other general or local law,
ordinance, rule or regulation, the Code Enforcement Officer shall
revoke the building permit or suspend the building permit until such
time as the permit holder demonstrates that:
G.
Fee. The fee as set by the Town Board periodically by resolution
must be paid at the time of submission of an application for a building
permit, for an amended building permit, or for renewal of a building
permit.
H.
Maintenance. The buildings, improvements and appurtenances erected
and situate upon any lot in the district shall at all times be kept
in a safe, clean, wholesome condition and shall comply with all government,
health and police requirements. All rubbish of any kind which may
accumulate on any such building lot shall be promptly removed.
Tier 1 battery energy storage systems shall be permitted in
all zoning districts, subject to the Uniform Code requirements and
the "Battery Energy Storage System Permit," and must include battery
replacement schedule and guarantee. Tier 1 battery energy storage
systems are exempt from site plan review.
Tier 2 battery energy storage systems are permitted through
the issuance of a special use permit and site plan approval within
the Agricultural District, Business District, Industrial District,
General Industrial District and Planned Unit Development District
(PUD Zone) to be used as an UPS (uninterruptible power source) backup
generator and shall be subject to the Uniform Code and the site plan
application requirements set forth in this chapter. Tier 2 battery
energy storage systems shall not be placed on wetlands, streams, tributaries,
or land designated as a watershed protection area as designated by
the Town, county or other agency, land of statewide importance or
environmentally sensitive, as shown on a Town, county, or state map.
A.
Applications for the installation of Tier 2 battery energy storage
system shall be:
(1)
Reviewed by the Planning Board for completeness. An application shall
be complete when it addresses all matters listed in this chapter including,
but not necessarily limited to: i) compliance with all applicable
provisions of the Uniform Code and all applicable provisions of the
Energy Code; and ii) matters relating to the proposed battery energy
storage system and floodplain, utility lines and electrical circuitry,
signage, lighting, vegetation and tree cutting, noise, decommissioning,
site plan and development, special use and development, ownership
changes, safety, and permit time frame and abandonment and emergency
access road dimensions approved by the local fire code officials.
Applicants shall be advised within 10 business days (of the first
Planning Board meeting on the application) of the completeness of
their application or any deficiencies that must be addressed prior
to substantive review.
(2)
Subject to a public hearing to hear all comments for and against
the application. The Planning Board of the Town shall have a notice
printed in a newspaper of general circulation in the Town in accordance
with the Town's special use permit requirements. Applicants shall
also have delivered the notice by first class mail to adjoining landowners
or landowners within 500 feet of the property at least 10 days prior
to such a hearing. Proof of mailing shall be provided to the Planning
Board at the public hearing.
(3)
Referred to the County Planning Board pursuant to General Municipal
Law § 239-m, if required.
(4)
Upon closing of the public hearing, the Planning Board shall take
action on the application within 62 days of the public hearing (or
after the SEQR process is completed, if not completed on the day of
the public hearing), which can include approval, approval with conditions,
or denial of the special use permit. The sixty-two-day period may
be extended upon consent by both the Planning Board and applicant.
(5)
The Planning Board can then take final action on the site plan.
B.
Utility lines and electrical circuitry. All on-site utility lines
shall be placed underground to the extent feasible and as permitted
by the serving utility, with the exception of the main service connection
at the utility company right-of-way and any new interconnection equipment,
including without limitation any poles, with new easements and right-of-way
and must comply with New York State Department of Agriculture and
Markets requirements, where applicable.
C.
Signage.
(1)
The signage shall be in compliance with ANSI Z535 and shall include
the type of technology associated with the battery energy storage
systems, any special hazards associated, the type of suppression system
installed in the area of battery energy storage systems, and twenty-four-hour
emergency contact information, including reach-back phone number.
(2)
As required by the NEC, disconnect and other emergency shutoff information
shall be clearly displayed on a light reflective surface. A clearly
visible warning sign concerning voltage shall be placed at the base
of all pad-mounted transformers and substations.
D.
Lighting. Lighting of the battery energy storage systems shall be
limited to that minimally required for safety and operational purposes
and shall be reasonably shielded and downcast from abutting properties
minimizing light trespass.
E.
Vegetation and tree cutting. Areas within 20 feet on each side of
Tier 2 battery energy storage systems shall be cleared of combustible
vegetation and other combustible growth. Single specimens of trees,
shrubbery, or cultivated ground cover such as green grass, ivy, succulents,
or similar plants used as ground covers shall be permitted to be exempt
provided that they do not form a means of readily transmitting fire.
Woodlands are important environmental features of the Town that merit
some degree of protection from development. Woodlands provide attractive
natural settings, offer important habitats for wildlife and contribute
to the rural character of the Town. Removal of trees should be minimized
to the extent possible, with no more than 10% of total acreage of
trees on the site to be removed.
F.
Noise. The one-hour average noise generated from the battery energy
storage systems, components, and associated ancillary equipment shall
not exceed a noise level, as measured at the outside wall of any non-participating
residence or occupied community building, based on current (45dBA)
or future recommendations from World Health Organization. Applicants
may submit equipment and component manufacturers' noise ratings
to demonstrate compliance. The applicant may be required to provide
operating sound pressure level measurements from a reasonable number
of sampled locations at the perimeter of the battery energy storage
system to demonstrate compliance with this standard.
G.
Soil removal. All topsoil disturbed during construction, reconstruction
or modification of each Battery Storage System will be stockpiled
and returned to the site upon completion of the activity that disturbed
the soil. In the event of a fire or explosion, all contaminated soil
must be removed and disposed of at an approved facility.
H.
Decommissioning.
(1)
Decommissioning plan. The applicant shall submit a decommissioning
plan, developed in accordance with the Uniform Code, to be implemented
upon abandonment and/or in conjunction with removal from the facility.
The decommissioning plan shall include:
(a)
A narrative description of the activities to be accomplished,
including who will perform that activity and at what point in time,
for complete physical removal of all battery energy storage system
components, structures, equipment, security barriers, and transmission
lines from the site;
(b)
Disposal of all solid and hazardous waste in accordance with
local, state, and federal waste disposal regulations;
(c)
The anticipated life of the battery energy storage system;
(d)
The estimated decommissioning costs and how said estimate was
determined;
(e)
The method of ensuring that funds will be available for decommissioning
and restoration;
(f)
The method by which the decommissioning cost will be kept current;
(g)
The manner in which the site will be restored, including a description
of how any changes to the surrounding areas and other systems adjacent
to the battery energy storage system, such as, but not limited to,
structural elements, building penetrations, means of egress, and required
fire detection suppression systems, will be protected during decommissioning
and confirmed as being acceptable after the system is removed; and
(h)
A listing of any contingencies for removing an intact operational
energy storage system from service, and for removing an energy storage
system from service that has been damaged by a fire or other event.
(2)
Decommissioning fund. The owner and/or operator of the energy storage
system shall continuously maintain a fund or bond payable to the Town,
in a form approved by the Town Attorney for the removal of the battery
energy storage system, in an amount to be determined by the Town,
for the period of the life of the facility. All costs of the financial
security shall be borne by the applicant.
I.
Site plan application. For a Tier 2 battery energy storage system
requiring a special use permit, site plan approval shall be required.
Any site plan application shall include the following information:
(1)
Property lines and physical features including the location and layout
of the battery storage energy system, and roads, for the project site.
(2)
Proposed changes to the landscape of the site, grading, vegetation
clearing and planting, exterior lighting, and screening vegetation
or structures.
(3)
A one- or three-line (as determined by the Town) electrical diagram
detailing the battery energy storage system layout, associated components,
and electrical interconnection methods, with all National Electrical
Code compliant disconnects and overcurrent devices.
(4)
A preliminary equipment specification sheet that documents the proposed
battery energy storage system components, inverters and associated
electrical equipment that are to be installed, a description of the
energy storage management system, the fire resistance rating, and
an explanation of the smoke, fire, ventilation, exhaust and deflagration
systems to be installed. A final equipment specification sheet shall
be submitted prior to the issuance of building permit.
(5)
Name, address, and contact information of proposed or potential system
installer and the owner and/or operator of the battery energy storage
system. Such information of the final system installer shall be submitted
prior to the issuance of building permit.
(6)
Name, address, phone number, and signature of the project Applicant,
as well as all the property owners, demonstrating their consent to
the application and the use of the property for the battery energy
storage system.
(7)
Zoning district designation for the parcel(s) of land comprising
the project site and those immediately adjoining the site.
(8)
Commissioning plan. Such plan shall document and verify that the
system and its associated controls and safety systems are in proper
working condition per requirements set forth in the Uniform Code.
Where commissioning is required by the Uniform Code, battery energy
storage system commissioning shall be conducted by a New York State
(NYS) licensed professional engineer after the installation is complete
but prior to final inspection and approval. A corrective action plan
shall be developed for any open or continuing issues that are allowed
to be continued after commissioning. A report describing the results
of the system commissioning and including the results of the initial
acceptance testing required in the Uniform Code shall be provided
to the Town prior to final inspection and approval and maintained
at an approved on-site location.
(9)
Fire safety compliance plan and security plan. Such plan shall document
and verify that the system and its associated controls and safety
systems are in compliance with the New York State Fire Code 1206,
the Uniform Code and is designed for battery energy storage modules.
The rooms in which the battery energy storage system equipment is
located shall not be used for storage purposes. Fire walls shall also
be included in the design of the project. These shall be constructed
of concrete or composite materials and positioned between containers.
Site security is important to protect the equipment as well as to
prevent injury to curious neighbors. Perimeter access monitoring and
notification of security breach to the site operator shall be required.
The operator shall follow all recommendations of the operator's
energy storage insurance coverage policy.
(10)
Operation and maintenance manual.
(a)
Such plan shall describe continuing battery energy storage system
maintenance and property upkeep and weed control, as well as design,
construction, installation, testing and commissioning information
and shall meet all requirements set forth in the Uniform Code.
(b)
Remote and continuous online monitoring, early detection sensors,
and appropriate venting to avoid the build-up of gas and automatic
fire suppression systems to NFPA 855 standards shall also be in place.
(11)
Erosion and sediment control and stormwater management plans prepared
to New York State Department of Environmental Conservation standards,
if applicable, and to such standards as may be established in the
Town of Somerset and by the Planning Board through the approval process.
(12)
Prior to the issuance of the building permit or final approval by
the Planning Board, but not required as part of the application, engineering
documents must be signed and sealed by a New York State licensed professional
engineer and signed off by Town Building Inspector and Town Engineering
firm.
(13)
Emergency operations plan. A copy of the approved emergency operations
plan shall be given to the system owner, the local fire department,
and local fire code official. A permanent copy shall also be placed
in an approved location to be accessible to facility personnel, fire
code officials, and emergency responders. Prior to activation of the
facility, the system operator must meet with the Niagara County Fire
Coordinator and Director of Emergency Services and the local first
responders to review the emergency operations plan in its entirety
and to determine if specialized personal protective equipment (PPE)
or fire suppression/containment equipment is needed. If any additional
PPE or fire suppression/containment is required that is not currently
available, the system operator must purchase those items. The emergency
operations plan shall include the following information:
(a)
Procedures for safe shutdown, de-energizing, or isolation of
equipment and systems under emergency conditions to reduce the risk
of fire, electric shock, and personal injuries, and for safe startup
following cessation of emergency conditions.
(b)
Procedures for inspection and testing of associated alarms,
interlocks, and controls.
(c)
Procedures to be followed in response to notifications from
the battery energy storage management system, when provided, that
could signify potentially dangerous conditions, including shutting
down equipment, summoning service and repair personnel, and providing
agreed upon notification to fire department personnel for potentially
hazardous conditions in the event of a system failure.
(d)
The property must be inspected by a subject matter engineer
or other subject matter certified inspector after a National Weather
Service designation of a Severe Weather Watch or Severe Weather Warning
to ensure that the property did not sustain damage.
(e)
Emergency procedures to be followed in case of fire, explosion,
release of liquids or vapors, damage to critical moving parts, or
other potentially dangerous conditions. Procedures can include sounding
the alarm, notifying the fire department, evacuating personnel, de-energizing
equipment, and controlling and/or extinguishing the fire.
(f)
Response considerations similar to a safety data sheet (SDS)
that will address response safety concerns and extinguishment when
an SDS is not required.
(g)
Procedures for dealing with battery energy storage system equipment
damaged in a fire or other emergency event, including maintaining
contact information for personnel qualified to safely remove damaged
battery energy storage system equipment from the facility. System
owner shall provide guaranteed nonemergency and emergency response
times of a qualified subject matter expert to the Town Hall and local
first responders.
(h)
Other procedures as determined necessary by the Town to provide
for the safety of occupants, neighboring properties, and emergency
responders, that shall include but not limited to a smoke plume test
for evacuation purposes. All smoke plume test findings shall be made
public.
(i)
Procedures and schedules for conducting drills of these procedures
and for training local first responders on the contents of the plan
and appropriate response procedures and a map of the area showing
emergency access roads with turning radii dimensions and turnaround
loop. Training of local first responders shall be done biannually.
Training in a classroom setting shall be done annually in the winter
and an on-site training session shall be done annually in the spring.
This training shall include local and mutual aid first responders.
(j)
The system owner shall notify the local fire department, County
Emergency Management office and the Town Hall at least one week prior
to any scheduled maintenance or battery swap out.
(k)
In the event of a fire or explosion, all expenses related to
cleanup and remediation shall be paid by the system operator/owner
and all contaminated soil must be removed and placed in a landfill
approved for such materials by the system owner.
(14)
Construction inspections.
(a)
Work to remain accessible and exposed. Work shall remain accessible and exposed until inspected and accepted by the Code Enforcement Officer. The permit holder shall notify the Code Enforcement Officer when any element of work described in Subsection I(14)(b) of this section is ready for inspection.
(b)
Elements of work to be inspected. The following elements of
the construction process shall be inspected, where applicable:
[1]
Work site prior to the issuance of a building permit;
[2]
Footing and foundation;
[3]
Preparation for concrete slab;
[4]
Framing;
[5]
Building systems, including underground and rough-in;
[6]
Fire-resistant construction;
[7]
Fire-resistant penetrations;
[8]
Solid-fuel-burning heating appliances, chimneys, flues or gas
vents;
[9]
Energy Code compliance; and
[10]
Inspection after all work authorized by the building permit
has been completed and signed off by the Town Building Inspector and
Town Engineer.
[11]
A final inspection by the fire marshal must be completed prior
to activation.
(c)
Inspection results. After inspection, the work or a portion
thereof shall be noted as satisfactory as completed, or the permit
holder shall be notified as to where the work fails to comply with
the Uniform Code or Energy Code. Work not in compliance with any applicable
provision of the Uniform Code or Energy Code shall remain exposed
until such work shall have been brought into compliance with all applicable
provisions of the Uniform Code and the Energy Code, reinspected, and
found satisfactory as completed.
J.
Special use permit standards.
(1)
Setbacks. Tier 2 battery energy storage systems shall comply with
the setback requirements of the underlying zoning district for principal
structures.
(2)
Height. Tier 2 battery energy storage systems shall comply with the
building height limitations for accessory structures of the underlying
zoning district.
(3)
Fencing requirements. Tier 2 battery energy storage systems, including
all mechanical equipment, shall be enclosed by a seven-foot-high fence
with a self-locking gate to prevent unauthorized access unless housed
in a dedicated-use building and not interfering with ventilation or
exhaust ports.
(4)
Screening and visibility. Tier 2 battery energy storage systems shall
have views minimized from adjacent properties to the extent reasonably
practicable using architectural features, earth berms, landscaping,
or other screening methods that will harmonize with the character
of the property and surrounding area and not interfering with ventilation
or exhaust ports.
K.
Ownership changes. If the owner of the battery energy storage system
changes or the owner of the property changes, the special use permit
shall remain in effect, provided that the successor owner or operator
assumes in writing all of the obligations of the special use permit,
site plan approval, reporting requirements and decommissioning plan
including decommissioning bond. A new owner or operator of the battery
energy storage system shall notify the Town of Somerset of such change
in ownership or operator within 30 days of the ownership change. A
new owner or operator must provide such notification to the Town in
writing. The special use permit and all other local approvals for
the battery energy storage system would be void if a new owner or
operator fails to provide written notification to the Town in the
required time frame. Reinstatement of a void special use permit will
be subject to the same review and approval processes for new applications
under this chapter.
L.
Landscaping plan: a plan depicting vegetation and forest cover, describing
the areas to be cleared of vegetation and forest cover and areas where
vegetation and forest cover shall be added identified by species and
size of specimens at installation and their locations. Landscaping
plans should aid in the creation of a uniform and aesthetically pleasing
viewshed. Landscaping plans, however, should also be designed with
functionality in mind as the location of plantings should not impede
first responder access, nor should they be placed in areas that may
contribute to a fire.
M.
Transportation plan: a transportation plan describing 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. Commercial traffic must adhere to operating on commercially
designated roads. Such plan shall also include any anticipated improvements
to existing roads, bridges or other infrastructure and measures to
restore damaged/disturbed access routes and all other infrastructure
following construction. Roads shall include all state highways, county
highways, Town highways, village streets and highways, which will
be or may be used by the applicant.
N.
Groundwater impacts. An analysis of impacts on local groundwater
resources shall be prepared regarding impacts anticipated during construction,
reconstruction, modification or operations, decommissioning and postdecommissioning
of each battery storage facility.
O.
Due to the location of the Town to the Lake Ontario shoreline corridor
and adjacent lands and waterways, all battery storage systems will
be placed on a nonpermeable surface with a nonpermeable moat type
system surrounding the battery storage system to minimize and mitigate
any migration of hazardous chemicals to those waterways in the event
of a fire.
A.
Tier 3 battery energy storage systems are permitted only in the Industrial
District and Planned Unit Development District (PUD) Zone of the Town
through the issuance of a special use permit and site plan approval
and shall be subject to the Uniform Code, application and the site
plan application requirements set forth in the Tier 2 section and
other applicable sections of these regulations and the Town Code.
Standalone Tier 3 battery energy storage systems are not allowed and
must be accompanied by a large-scale solar energy conversion system
(Tier 3 or 4 per the Town's Code) or an industrial wind energy
conversion system. Their location shall be further restricted by the
restrictions for the location of Tier 3 and 4 solar energy systems
and wind systems (see the Town laws on these facilities) and limited
to an aggregate energy capacity of less than 1m Wh.
B.
The following additional requirements (additional or superseding
to the Tier 2 requirements) are required for Tier 3 projects:
(2)
Semiannual report provided to the Town Board, Town Planning Board
and Code Enforcement Officer. The report shall include a copy of a
recent inspection report by a licensed professional engineer including
any sustained structural damage and a copy of proof of insurance in
a sufficient dollar amount to cover potential personal and property
damage associated with construction and operation thereof.
(3)
As these types of battery energy storage systems are only allowed
when accompanied by a Tier 3 or 4 solar energy system or wind energy
system; these systems must also meet the requirements and restrictions
of the laws for Tier 3 and 4 solar energy systems and wind systems,
whichever is appropriate.
System certification. Battery energy storage systems and equipment
shall be listed by a nationally recognized testing laboratory to UL
9540 (standard for battery energy storage systems and equipment) with
subcomponents meeting each of the following standards as applicable:
A.
UL 1973 (Standard for Batteries for Use in Stationary, Vehicle Auxiliary
Power, and Light Electric Rail Applications).
B.
UL 1642 (Standard for Lithium Batteries).
C.
UL 1741 or UL 62109 (Inverters and Power Converters).
D.
Certified under the applicable electrical, building, and fire prevention
codes as required.
E.
Alternatively, field evaluation by an approved testing laboratory
for compliance with UL 9540 and applicable codes, regulations and
safety standards may be used to meet system certification requirements.
F.
The local fire marshal shall inspect all areas of the battery energy
storage system prior to activation.
G.
Site access. Battery energy storage systems shall be maintained in
good working order and in accordance with industry standards. Site
access shall be maintained, including snow removal at a level acceptable
to the local fire department and, if the Tier 2 or Tier 3 battery
energy storage system is located in an ambulance district, the local
ambulance corps. Combination locks shall be used for all gates and
the combinations provided to the local fire department and the Town
Hall.
H.
Battery energy storage systems, components, and associated ancillary
equipment shall have required working space clearances, and electrical
circuitry shall be within weatherproof enclosures marked with the
environmental rating suitable for the type of exposure in compliance
with NFPA 70.
A.
The special use permit and site plan approval for a battery energy
storage system shall be valid for a period of 24 months, provided
that a building permit is issued for construction and/or construction
is commenced. In the event construction is not completed in accordance
with the final site plan, as may have been amended and approved, as
required by the Planning Board, within 24 months after approval, the
Town may extend the time to complete construction for 180 days. If
the owner and/or operator fails to perform substantial construction
after 36 months, the approvals shall expire.
B.
The battery energy storage system shall be considered abandoned when
it ceases to operate consistently for more than one year. If the owner
and/or operator fails to comply with decommissioning upon any abandonment,
the Town may, at its discretion, enter the property and utilize the
available bond and/or security for the removal of a Tier 2 or Tier
3 battery energy storage system and restoration of the site in accordance
with the decommissioning plan.
This chapter shall be enforced by the Town Code Enforcement
Officer.
A.
Any person owning, controlling or managing any building, structure
or land who shall undertake a battery energy storage system in violation
of this chapter, or who operates such facility in noncompliance with
the terms and conditions of any permit issued pursuant to this chapter,
shall be guilty of a violation and subject to a fine of not more than
$250 or to imprisonment for a period of not more than 15 days, or
to both such fine and imprisonment. Every such person shall be deemed
guilty of a separate offense for each week such violation shall continue.
B.
The Code Enforcement Officer may, after notice of violation, enter
into a consent order with the applicant/owner/operator to remedy the
violation with specifications to be taken and an agreed schedule.
C.
Special proceeding. In addition to any other remedy, the Town Board
may institute an action or proceeding in equity, correct or abate
any unlawful construction, erection, structural alteration, reconstruction,
modification and/or use of a battery energy storage system, and shall
be entitled to injunctive relief, including a temporary restraining
order and a temporary injunction as the court deems appropriate.
A.
Authority to issue. The Code Enforcement Officer is authorized to
issue stop-work orders pursuant to this section. The Code Enforcement
Officer shall issue a stop-work order to halt:
(1)
Any work that is determined by the Code Enforcement Officer to be
contrary to any applicable provision of the Uniform Code or Energy
Code, the Zoning Code or any other general or local laws, ordinances,
rules or regulations without regard to whether such work is or is
not work for which a building permit is required, and without regard
to whether a building permit has or has not been issued for such work;
(2)
Any work that is being conducted in a dangerous or unsafe manner
in the opinion of the Code Enforcement Officer, without regard to
whether such work is or is not work for which a building permit is
required, and without regard to whether a building permit has or has
not been issued for such work; or
(3)
Any work for which a building permit is required which is being performed
without the required building permit, or under a building permit that
has become invalid, has expired, or has been suspended or revoked.
C.
Service of stop-work orders. The Code Enforcement Officer shall cause
the stop-work order, or a copy thereof, to be served on the owner
of the affected property and, if the owner is not the permit holder,
on the permit holder personally or by registered mail or certified
mail. Service by registered or certified mail shall be sufficient
if addressed to the address set forth in the building permit application.
The Code Enforcement Officer shall be permitted, but not required,
to cause the stop-work order, or a copy thereof, to be served on any
new applicant, owner, builder, architect, tenant, contractor, subcontractor,
construction superintendent, or their agents, or any other person
taking part or assisting in work affected by the stop-work order,
personally or by registered mail or certified mail; provided, however,
that failure to serve any person mentioned in this sentence shall
not affect the efficacy of the stop-work order.
D.
Effect of stop-work order. Upon the issuance of a stop-work order,
the owner of the affected property, the permit holder and any other
person performing, taking part in or assisting in the work shall immediately
cease all work which is the subject of the stop-work order.
E.
Remedy not exclusive. The issuance of a stop-work order shall not be the exclusive remedy available to address any event described in Subsection A of this section, and the authority to issue a stop-work order shall be in addition to, and not in substitution for or limitation of, the right and authority to pursue any other remedy or impose any other penalty under § 205-67.3, Violations; penalties for offenses, of this Code or under any other applicable local law or state law. Any such other remedy or penalty may be pursued at any time, whether prior to, at the time of, or after the issuance of a stop-work order.
The invalidity or unenforceability of any section, subsection,
paragraph, sentence, clause, provision, or phrase of the aforementioned
sections, as declared by the valid judgment of any court of competent
jurisdiction to be unconstitutional, shall not affect the validity
or enforceability of any other section, subsection, paragraph, sentence,
clause, provision, or phrase, which shall remain in full force and
effect.
