[Added 1-26-2022 by L.L.
No. 3-2022[1]]
[1]
Editor's Note: This local law also provided for the repeal
of former Art. XXII, Solar Energy Systems, adopted 12-21-2016 by L.L.
No. 5-2016, which local law repealed former Art. XXII, Small-Scale
Solar Energy Systems, adopted 10-8-2013 by L.L. No. 7-2013.
A.
This solar energy local law is adopted pursuant to Sections 261 to
263 of the Town Law for the State of New York, which authorizes the
Town to adopt zoning provisions that advance and protect the health,
safety and welfare of the community, and, in accordance with the Town
Law of New York State, "to make provision for, so far as conditions
may permit, the accommodation of solar energy systems and equipment
and access to sunlight necessary therefore."
B.
The Town Board of the Town of Somerset enacts this solar energy system
article under the authority granted by:
(2)
New York Statute of Local Governments, § 10, Subdivisions
1, 6 and 7.
(3)
New York Municipal Home Rule Law, § 10, Subdivision
1(i) and (ii), and § 10, Subdivision 1(ii)a(6), (11), (12)
and (14).
(4)
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 article, 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 article differ from the authority granted to the Town by Article
16 of the Town Law.
(5)
New York Town Law, Article 16 (Zoning).
(6)
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).
(7)
New York Town Law § 64, Subdivision 17-a (protection
of aesthetic interests), and Subdivision 23 (General powers).§ 1.
(8)
New York Real Property Tax Law § 487.
(9)
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 solar energy
conversion systems are a readily available and renewable energy source,
and the Town of Somerset intends to accommodate the use of solar energy
conversion systems.
B.
However, the Town Board finds a growing need to properly site all
types of solar 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 solar energy
resources, and to protect the health, safety and general welfare of
the citizens of the Town of Somerset.
C.
This Solar Energy 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 solar
energy systems, and to be consistent with the Town's Comprehensive
Plan, Local Waterfront Revitalization Program (LWRP), and other local
and regional plans with the following objectives:
(1)
To provide a regulatory scheme for the designation of properties
suitable for the location, construction and operation of solar energy
systems.
(2)
To ensure that solar energy systems are compatible with land
uses in the vicinity of any proposed solar energy system.
(3)
To ensure that the installation of solar energy systems is in
conformance with the Town's Comprehensive Plan. The Comprehensive
Plan sets basic Town policies for protecting the Town's important
drainage features, agricultural lands and environmentally sensitive
areas, the large forested areas of the Town, the creeks, the floodplains
and the wetlands and watershed. To mitigate the impacts and damage
of solar energy systems on environmental resources such as important
agricultural lands and important soils, 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. Maps of the Town defining the features listed are available
in the Town of Somerset Comprehensive Plan and other local and regional
documents.
(4)
To protect the health and economic well-being of residents,
farms and businesses of the Town in emergency situations.
(5)
Solar energy systems need to be regulated from permitting through
construction and ultimately for their removal when no longer utilized.
D.
Findings. The Town Board of the Town of Somerset makes the following
findings:
(1)
Shortsighted planning has often resulted in creation of problem
land uses 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. Commercial wind energy and
solar energy 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 article 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. 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)
Commercial/industrial solar energy 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 and large-scale
land uses.
(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.
(g)
If not properly regulated, installation of large-scale solar
energy system facilities 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)
Large-scale solar energy facilities, when improperly sited,
are known to adversely affect the areas around these facilities which
may lead to property value impacts 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 disbursed residences which residents have chosen as their homes,
often because of a love for rural-pastoral lifestyle.
(j)
Large-scale solar energy system facilities may be significant
sources of noise, that, if unregulated, can negatively affect quiet
enjoyment of the area, properties, and the health and quality of life
of residents.
(k)
Construction of large-scale solar energy system facilities can
create traffic problems and can cause damage to local roads and infrastructure
during construction.
(l)
Large-scale solar energy system facilities have the potential
to cause electromagnetic interference with various types of communications.
(m)
Solar energy system facilities need to be regulated for removal
when no longer utilized. Funding and mechanisms for removal when the
facilities are no longer operating need to be in place.
(n)
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
article and to make recommendations; and its conclusions and recommendations
have been duly considered and given great weight.
(o)
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 article, the following terms shall have the
meanings indicated:
Land used for cultivated crops, hay, or pasture in the last
five years.
A combination of solar panels and solar energy equipment
integrated into any building envelope system such as vertical facades,
semitransparent skylight systems, roofing materials, or shading over
windows, which produce electricity for on-site consumption.
Any residence/house/apartment that may be occupied or vacant.
An area of the Town described and depicted in the Town of
Somerset Comprehensive Plan.
Land, designated as "Farmland of Statewide Importance" in
the United States Department of Agriculture Natural Resources Conservation
Service (NRCS) Soil Survey Geographic (SSURGO) Database on Web Soil
Survey that is of statewide importance for the production of food,
feed, fiber, forage, and oilseed crops as determined by the appropriate
state agency or agencies. Farmland of statewide importance may include
tracts of land that have been designated for agriculture by state
law.
The effect by reflections of light with intensity sufficient
as determined in a commercially reasonable manner to cause annoyance,
discomfort, or loss in visual performance and visibility in any material
respects.
Giving out or reflecting small flashes of light.
A solar energy system that is anchored to the ground via
a pole or other mounting system, detached from any other structure
that generates electricity for on-site or off-site consumption.
A contract between a developer and a local governing body,
whereby the developer agrees to provide the community with certain
benefits and mitigate specified impacts of the solar project.
Native wildflowers, forbs, and grasses that serve as habitat,
forage, and migratory way stations for pollinators and shall not include
any prohibited or regulated invasive species as determined by the
New York State Department of Environmental Conservation.
A property that is not affiliated with a solar energy system
project in any way.
A tract of land owned by an individual or entity leased or
otherwise controlled by an applicant upon which a solar energy system
is proposed to be constructed.
A property that is being leased for solar usage, or a property
that has an agreement or lease but is not having solar-related improvements
constructed upon it.
Bees, birds, bats, and other insects or wildlife that pollinate
flowering plants, and includes both wild and managed insects.
Land, designated as "Prime Farmland" or "Prime Farmland where
drained" in the United States Department of Agriculture Natural Resources
Conservation Service (NRCS) Soil Survey Geographic (SSURGO) Database
on Web Soagil Survey, that has the best combination of physical and
chemical characteristics for producing food, feed, forage, fiber,
and oilseed crops and is also available for these land uses.
A solar energy system located on the roof of any legally
permitted building or structure that produces electricity for on-site
or off-site consumption.
Space open to the sun and clear of overhangs or shade so
as to permit the use of active and/or passive solar energy systems
on individual properties.
Electrical material, hardware, inverters, conduit, storage
devices, or other electrical and photovoltaic equipment associated
with the production of electricity.
The components and subsystems required to convert solar energy
into electric energy suitable for use. The term includes, but is not
limited to, solar panels and solar energy equipment. A solar energy
system in the Town of Somerset is classified as a Tier 1, Tier 2,
Tier 3 or Tier 4 solar energy system as follows.
Tier 2 solar energy systems include ground-mounted solar energy
systems up to 1,500 square feet in size (defined as the actual square
footage of panels) and that generate no more than 110% of the electricity
consumed on the site over the previous 12 months (or calculations
provided for new builds).
Tier 3 solar energy systems are systems that do not meet the
definition of a Tier 1 or Tier 2 solar energy system and are 20 acres
or less in size (defined as the fenced in area that encloses the panels
and other related solar energy equipment) and do not meet the requirements
of a Tier 4 solar energy system.
Tier 4 solar energy systems meet the definition of a Tier 3
solar energy system and are over 20 acres in size (defined as the
fenced in area that encloses the panels and other related solar energy
equipment).
A photovoltaic device capable of collecting and converting
solar energy into electricity.
A device that stores energy and makes it available in an
electrical form (see Town law on battery storage).[1]
Any areas designated as such by the New York State Department
of Environmental Conservation and the United States Army Corps of
Engineers.
A.
The requirements of this article shall apply to all solar energy
systems permitted, installed, or modified in the Town after the effective
date of this article, excluding general maintenance and repair.
B.
Solar energy systems constructed or installed prior to the effective
date of this article shall not be required to meet the requirements
of this article.
C.
Modifications to an existing solar energy system that increase the
solar energy system area by more than 5% of the original area of the
solar energy system (exclusive of moving any fencing) shall be subject
to this article.
D.
All solar energy systems shall be designed, erected, and installed
in accordance with all applicable codes, regulations, and industry
standards as referenced in the New York State Uniform Fire Prevention
and Building Code ("Building Code"), the New York State Energy Conservation
Code ("Energy Code"), and the Town Code.
E.
This article shall not apply to any lot owned by a municipality.
F.
This article shall not apply to any lot located within the Village
of Barker.
A.
A building permit shall be required for installation of all solar
energy systems.
B.
Issuance of permits and approvals by the 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.
This article shall take precedence over any inconsistent provision
of the Zoning Law of the Town of Somerset.
All Tier 1 solar energy systems shall be permitted in all zoning
districts and shall be exempt from site plan review under the local
zoning code or other land use regulation, subject to the following
conditions for each type of solar energy system:
A.
Roof-mounted solar energy systems.
(1)
Roof-mounted solar energy systems shall incorporate, where appropriate,
the following design requirements:
(a)
Solar panels on pitched roofs shall be mounted with a maximum
distance of eight inches between the roof surface and the highest
edge of the system.
(b)
Solar panels on pitched roofs shall be installed parallel to
the roof surface on which they are mounted or attached.
(c)
Height: Tier 1 solar energy systems shall have the following
height restrictions for all zoning districts: two feet above roof
of highest existing structure but shall not be higher than the allowed
height in the underlying zoning district.
(d)
Solar panels on flat roofs shall not extend above the top of
the surrounding parapet, or more than 24 inches above the flat surface
of the roof, whichever is higher.
(2)
Glare: All solar panels shall have antireflective coating(s)
and proof of such must be provided with the building permit application.
(3)
Fire safety: All roof-mounted systems shall be designed and
installed in accordance with the Uniform Fire Prevention and Building
Code standards.
B.
Building-integrated solar energy systems. Building-integrated solar
energy systems shall be shown on the plans submitted for the building
permit application for the building containing the system.
All Tier 2 solar energy systems are permitted as accessory structures
(with Planning Board site plan approval) in the following districts
(unless restricted in any zoning overlay district): Agricultural District
(A), Business District (B), Planned Unit Development District (PUD),
Industrial District (I), Single-Family Residential District (R-1),
Single- and Two-Family Residential District (R-2) or Lake Shore Residential
District (RLS). The site plan application shall include a site plan
and address the following requirements:
A.
Glare, glint and reflection and color. The design, construction,
operation and maintenance of any solar energy system shall prevent
the misdirection and/or reflection of solar rays onto neighboring
properties, public roads and public spaces in excess of that which
already exists. All solar panels shall have antireflective materials
and/or coating(s) and proof of such must be provided with the building
permit application. Panel and equipment color shall be consistent
with industry standards; usually dark colors or shades of black, dark
blue or grey.
B.
Ground screw installations. Ground screw columns designed to properly
support solar panels and equipment are required. Concrete pads or
platforms shall not be permitted.
C.
Setbacks. Tier 2 solar energy systems shall be set back a minimum
of 25 feet from any side or rear property line. All Tier 2 solar energy
systems shall only be installed in the side or rear yards in all zoning
districts except residential districts. In residential districts,
only rear yard installations shall be allowed. Note, the front yard
in the RLS District is on the lakeside. In all cases, the solar panels
shall be located a minimum of 50 feet from any dwelling unit on an
adjoining non-participating property.
D.
Height. The height of Tier 2 solar energy systems shall be no greater
than 12 feet in any residential districts. Height shall be less than
15 feet for all remaining districts.
E.
Screening and visibility.
(1)
All Tier 2 solar energy systems shall have views minimized from
adjacent properties to the extent reasonably practicable (as determined
through the site plan process).
(2)
Solar energy equipment shall be located in a manner to reasonably
avoid and/or minimize blockage of views from surrounding properties
and shading of property to the north, while still providing adequate
solar access. Tier 2 installations on lakeshore properties may create
view issues for the neighbors and must be located in a manner that
does not impact neighbor views.
F.
Site plan requirements. Site plans for Tier 2 solar energy systems
shall be processed in accordance with the Town site plan regulations,
and shall include the following minimal information:
(1)
Plans and drawings of the solar energy system installation signed
by a professional engineer registered in New York State showing the
proposed layout of the solar energy system along with a description
of all components, existing vegetation, any proposed clearing and
grading of the lot involved, any stormwater or erosion disturbances,
and utility lines, both above and below ground, on the site and adjacent
to the site; and
(2)
Property lot lines and the location and dimensions of all existing
structures and uses on site within 200 feet of the solar panels; and
(3)
Any proposed fencing and/or screening for said project; and
(4)
Any such additional information as may be required by the Town's
professional engineer or consultant, Town of Somerset Planning Board,
Town Attorney, Building Inspector or other Town entity.
(5)
Tier 2 solar energy systems are not permitted in front yards,
or side yards in the R-1, R-2, and RLS Zoning Districts.
A.
Tier 3 solar energy systems are primarily intended to collect energy
for off-site distribution, consumption, and energy markets and by
the Town's definition are large solar energy projects that can
have a significant impact on the Town. Tier 3 solar energy systems
shall not be installed in environmentally sensitive areas, such as
floodplains, wetlands and watershed protection areas as designated
by the Town, county or other agency, waterfront areas of the Town
and wood lots or in areas of important farm soils and tourism-related
facilities. Specifically, Tier 3 systems are not allowed in the waterfront
protection, agriculture/agri-tourism and environmentally sensitive
areas of the Town as denoted on the Vision Map of the Town of Somerset
Comprehensive Plan (on file at the Town).
(1)
All Tier 3 solar energy systems are permitted through the issuance
of a special use permit within the Industrial, General Industry Zoning
Districts, and Planned Unit Development Districts (as restricted above),
and subject to site plan application requirements set forth in this
section. In order to ensure that the benefits of the community solar
energy resource are available to the entire community, the Town of
Somerset requires the applicant to enter into a solar energy system
host community agreement with the Town of Somerset.
(2)
Notwithstanding Article XVA of Chapter 205 of the Town Code of the Town of Somerset, Tier 3 solar energy systems shall be permitted through the process set forth in this article. The requirements set forth in Article XV of Chapter 205 of the Town Code shall not be applicable to Tier 3 solar energy system within a Planned Unit Development District.
B.
Applications (process) for the installation of Tier 3 solar energy
system shall be:
(1)
Received by the Code Enforcement Officer (CEO) and checked to
make sure the appropriate documents and fees have been submitted.
The CEO will then forward to the Planning Board, by having it placed
on the next available agenda, for them to determine completeness of
the application. Applicants shall be advised within 10 business days
of the first Planning Board meeting of the completeness of their application
or any deficiencies that must be addressed prior to substantive review
of the special use permit and site plan.
(2)
Once the application is deemed complete and while the Planning
Board is completing their reviews, the project/application shall be
referred to the Town Board to begin completion of the host community
agreement; this agreement will need to be finalized before the Planning
Board acts on the special use permit.
(3)
Subject to a public hearing to hear all comments for and against
the application. The Town shall complete all public notice requirements
in accordance with the special use requirements of the Town.
(4)
Referred to the Niagara County Planning Department pursuant
to General Municipal Law § 239-m if required.
(5)
Acted upon by the Planning Board, once the required steps are
completed and the Planning Board has completed the SEQR process.
C.
Design and application requirements. Applications for Tier 3 solar
projects shall address and include the following:
(1)
Battery storage. The applicant must identify whether or not
battery energy storage is part of the solar energy system project.
Solar storage batteries, equipment and facilities are only permitted
as prescribed in the Town of Somerset Battery Energy Storage Law.[1]
(2)
Drainage. Solar energy systems must comply with New York State
stormwater regulations. Applicants must demonstrate that solar systems
will not create adverse drainage, runoff or hydrology conditions that
could impact adjoining and other non-participating properties. Applicants
are required to submit drainage design plans to the Planning Board
that may be forwarded to the Town Engineer for review.
(3)
Groundwater and wells. The applicant must identify the groundwater
conditions in the area and all public and private wells within 1,000
feet of the site.
(4)
Vehicular paths. Vehicular paths within the site shall be designed
to minimize the extent of impervious materials and soil compaction.
(5)
Signage.
(a)
No signage or graphic content shall be displayed on the solar
energy systems except the manufacturer's name, equipment specification
information, safety information, and twenty-four-hour emergency contact
information. Said information shall be depicted within an area no
more than eight square feet.
(b)
As required by National Electric Code (NEC), disconnect and
other emergency shutoff information shall be clearly displayed on
a light reflective surface. A clearly visible warning sign concerning
voltage shall be placed at the base of all pad-mounted transformers
and substations.
(6)
Glare/glint. All solar panels shall have antireflective coating(s)
and proof of such submitted. All equipment and support structures
should not produce glare or glint.
(7)
Lighting. Lighting of the solar energy systems shall be limited
to that minimally required for safety and operational purposes and
shall be reasonably shielded and downcast (dark sky compliant) from
abutting properties.
(8)
Noise. The project shall be shown to not have adverse or unreasonable
noise impacts on surrounding homes or other sensitive receptors. The
one-hour average noise generated from the solar energy system's
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 solar energy system to demonstrate compliance
with this standard.
(9)
Tree cutting. Removal of existing trees larger than six inches
in diameter should be minimized to the extent possible. The standard
being no more than 10% of the existing trees larger than six inches
in diameter should be removed.
D.
Decommissioning.
(1)
Solar energy systems that have been abandoned and/or not producing
electricity (defined as operated at a minimum of 50% capacity of the
system for a period of at least six months) for a period of one year
shall be removed at the owner and/or operator's expense, which
at the owner's option may come from any security made with the
Town as set forth in this article. A yearly operational report will
be required to be submitted to the Town documenting the system's
performance.
(2)
A decommissioning plan signed by the owner and/or operator of
the solar energy system shall be submitted by the applicant, addressing
the following:
(a)
The cost of removing the solar energy system (no allowance for
recycle value).
(b)
The time required to decommission and remove the solar system
and any ancillary structures.
(c)
The time required to repair any damage caused to the property
by the installation and removal of the solar energy system.
(d)
If on agricultural lands, the plan must include meeting the
New York State agriculture and markets standards.
(3)
Security.
(a)
The deposit, executions, or filing with the Town Clerk of cash,
bond, or other form of security reasonably acceptable to the Town
Attorney and/or engineer and approved by the Town Board, shall be
in an amount sufficient to ensure the good faith performance of the
terms and conditions of the permit issued pursuant hereto and to provide
for the removal and restorations of the site subsequent to removal.
The amount of the bond or security shall be 125% of the cost of removal
of the Tier 3 solar energy system and restoration of the property
with an escalator of 2% annually for the life of the solar energy
system. The decommissioning amount shall not be reduced by the amount
of the estimated salvage value of the solar energy system. This security
amount shall be reviewed periodically and updated/renewed as necessary
(determined at the time of the first security agreement). This "security"
shall be in place prior to the start of construction.
(b)
In the event of default upon performance of such conditions,
after proper notice and expiration of any cure periods, the cash deposit,
bond, or security shall be forfeited to the Town, which shall be entitled
to maintain an action thereon. The cash deposit, bond, or security
shall remain in full force and effect until restoration of the property
as set forth in the decommissioning plan is completed.
(c)
In the event of default or abandonment of the solar energy system,
the system shall be decommissioned as set forth in this article.
E.
Maintenance plan. Applications shall include a maintenance plan for
all leased and owned lands (including required setbacks/buffers).
Maintenance includes equipment, roadways/access drives, plantings
under the panels, landscaped areas, and all other areas of the site.
F.
Safety. Applications shall include a safety plan (including communication
with emergency service providers).
(1)
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. 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 solar energy 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 after a National Weather Service
designation of a Severe Weather Watch or Severe Weather Warning to
ensure that the property did not sustain damage. Report to be filed
with Town Planning Board.
(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 solar energy system equipment damaged
in a fire or other emergency event, including maintaining contact
information for personnel qualified to safely remove damaged solar
energy 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 be 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. 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, all contaminated soil must be removed
and disposed of properly, in accordance with all applicable laws.
G.
Environmental and cultural resources; information on the environmental
and cultural resources (as identified through the NYSDEC Mapping system
and by the Town of Somerset) on the subject property and surrounding
properties.
Site plan application. For any solar energy system requiring
a special use permit, site plan approval shall be required. This required
site plan application shall include a site plan and the following
information:
A.
A plan illustrating property lines and physical features, including
roads, for the project site.
B.
Proposed changes to the landscape of the site, grading, vegetation
clearing and planting, exterior lighting, and screening vegetation
or structures.
C.
A one- or three-line electrical diagram detailing the solar energy
system layout, solar collector installation, associated components,
and electrical interconnection methods, with all National Electrical
Code compliant disconnects and over current devices.
D.
A preliminary equipment specification sheet that documents all proposed
solar panels, significant components, mounting systems, and inverters
that are to be installed. A final equipment specification sheet shall
be submitted prior to the issuance of building permit.
E.
Name, address, and contact information of proposed or potential system
installer and the owner and/or operator of the solar energy system.
Such information of the final system installer shall be submitted
prior to the issuance of building permit.
F.
Name, address, phone number, and signature of the project applicant,
as well as all the property owners, demonstrating their consent to
the application and the use of the property for the solar energy system.
G.
Zoning district designation for the parcel(s) of land comprising
the project site.
H.
Property operation and maintenance plan. Such plan shall describe
continuing photovoltaic maintenance and property upkeep (especially
the landscaped areas used for screening), such as mowing and trimming
(or other methodologies).
I.
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 by the
Planning Board.
J.
Engineering documents must be signed and sealed by a New York State
(NYS) licensed professional engineer or New York State registered
architect.
K.
A completed SEQR Full Environmental Assessment Form (if over 10 acres
or requested by the Planning Board).
L.
A landscape plan in accordance with the special use permit requirements
of this article.
M.
An overall project location map (illustrating surrounding properties
within 1,000 feet) illustrating zoning (including any overlays), land
use, environmental features and structures.
A.
Specific standards.
(1)
Lot size. There are no lot size requirements; the project must
be shown to meet all setback and other requirements of this article.
(2)
Setbacks. All Tier 3 solar energy systems shall be set back
a minimum of 200 feet from the fence surrounding the solar panels
and equipment to all non-participating property lines and to the edge
of any road ROW. This setback shall be a minimum of 50 feet from a
participating property line. Additionally, the setback from the fence
line shall be a minimum of 400 feet from a dwelling unit on an adjoining
non-participating property. The setback to any off-site participating
dwelling unit shall be 100 feet.
(3)
Height. The Tier 3 solar energy systems shall be less than or
equal to 20 feet. The height of systems will be measured from the
highest natural grade below each solar panel. This height requirement
can be waived by the Planning Board if the panels are being raised
to accommodate agricultural purposes.
(4)
Fencing requirements. All solar panels and mechanical equipment,
and any related structures, shall be enclosed by a fence (seven feet
high), and meet any other regulatory requirements such as NEC, with
a self-locking gate to prevent unauthorized access. The type of fencing
(including the need for barbed wire) will be determined by the Planning
Board and shall fit into the character of the area. Fencing shall
be of a good quality and have a typical lifespan of a minimum of 30
years.
(5)
Screening and visibility.
(a)
Solar energy systems smaller than five acres shall have views
minimized from adjacent properties to the extent reasonably practicable
using architectural features, earthen berms, landscaping, or other
screening methods that will harmonize with the character of the property
and surrounding area.
(b)
Solar energy systems larger than five acres shall be required
to:
[1]
Conduct a visual assessment of the visual impacts of the solar
energy system on public roadways and adjacent properties. At a minimum,
a line-of-sight profile analysis shall be provided. Depending upon
the scope and potential significance of the visual impacts, additional
impact analyses, including for example a digital viewshed report,
may be required to be submitted by the applicant.
[2]
Submit a screening and landscaping plan to show adequate measures
to screen through landscaping, grading, or other means so that views
of solar panels and solar energy equipment shall be minimized as reasonably
practical, from public roadways and adjacent properties to the extent
feasible at the start of activation. The Planning Board will in good
faith determine the adequacy of these measures in its sole and absolute
discretion.
[3]
The screening and landscaping plan shall specify the locations, elevations, height, plant species, and/or materials that will comprise the structures, landscaping, and/or grading used to screen and/or mitigate any adverse aesthetic effects of the system. The landscaped screening shall be comprised of a minimum of one evergreen tree, at least six feet high at time of planting, plus two supplemental shrubs at the reasonable discretion of the Town Planning Board, all planted within each 10 linear feet of the exterior of the fencing required by § 205-112A(4) above. Existing vegetation on the subject property may be used to satisfy all or a portion of the required landscaped screening. A list of suitable evergreen tree and shrub species shall be provided by the applicant for the Town to review. This minimum screening requirement will be reduced if adjoining properties are participating properties. Every effort should be made to plant native trees and shrubs to preserve the character of the area and support local wildlife. The contractor in conjunction with a local nursery should recommend shrub screening for Planning Board approval. For all Tier 3 projects, the recommendations of a landscape professional are required. The Planning Board can require that Tier 3 systems involving complex or sensitive visual and/or aesthetic concerns be approved by a New York State registered landscape architect. All Tier 3 solar energy systems landscape plans must be approved by a New York State registered landscape architect.
[4]
For any buildings or structures (not panels) to be placed on
the site, the applicant shall be required to submit plans illustrating
how these structures will blend into the character of the area. For
example, any buildings can be made to look like agricultural structures
such as barns.
(6)
Agricultural resources. For projects located on agricultural
lands:
(a)
Any Tier 3 solar energy system shall not be permitted on any
property, lot, parcel that contains 50% or more land classified as
prime farmland soils or farmland soils of statewide importance. Prime
farmland is determined and classified by the United States Department
of Agriculture (USDA) and the percentage of prime farmland and farmland
of statewide importance is calculated using USDA maps and online data
tools, including any amendments made to those maps and data. It is
the responsibility of the developer and/or landowner to provide written
evaluation, data and mapping to the Planning Board that this 50% requirement
is met. The evaluation must contain data and maps that are supported,
approved and/or published by the USDA, New York State Agriculture
and Markets and/or Niagara County Soil and Water Conservation District
(NRCS). The Planning Board may require that this evaluation be reviewed
by the Town Engineer, consultant, or local agricultural services agent,
where the cost of this review will be the responsibility of the developer
or landowner.
(b)
Tier 3 solar energy systems located on farmland shall be constructed
in accordance with the construction requirements of the New York State
Department of Agriculture and Markets (See New York State Agriculture
and Markets Guidelines).
(c)
Tier 3 solar energy system owners shall develop, implement,
and maintain native vegetation to the extent practicable pursuant
to a vegetation management plan by providing native perennial vegetation
and foraging habitat beneficial to game birds, songbirds, and pollinators.
To the extent practicable, when establishing perennial vegetation
and beneficial foraging habitat, the owners shall use native plant
species and seed mixes. Once established, other agriculture uses such
as pasturing livestock and apiculture are permissible and encouraged.
(d)
Agricultural restoration requirements. Once the system is decommissioned,
the site shall be restored and remediated in accordance with the New
York State Agriculture and Markets Guidelines (this will be a condition
of the special use permit).
(7)
Noise. The project shall be shown to not have any adverse noise
impacts on any surrounding homes or other sensitive receptors (see
earlier section of the law for specific requirements).
(8)
Hazardous materials. The project components shall not contain
any hazardous materials that could contaminate soils or the air by
their release (units shall not contain cadmium, lead or other hazardous
substances such as PFAS substances used in coatings, etc.), MSD sheets
for all materials considered hazardous shall be provided to the Barker
Fire Department, Code Enforcement Officer and Town Hall.
B.
Solar energy system liability insurance:
(1)
The holder of a special use permit for a solar energy system
shall agree to secure and maintain for the duration of the permit
public liability insurance as follows:
(a)
Commercial general liability covering personal injuries, death
and property damage: $5,000,000 per occurrence ($10,000,000 aggregate)
which shall specifically include the Town of Somerset and its officers,
councils, employees, attorneys, agents and consultants as additional
named insured.
(b)
Umbrella coverage: $10,000,000.
(2)
Insurance company: The insurance policies shall be issued by
an agent or representative of an insurance company licensed to do
business in the state and with at least a Best's rating of "A."
(3)
Insurance policy cancellation: The insurance policies shall
contain an endorsement obligating the insurance company to furnish
the Town of Somerset with at least 30 days' prior written notice
in advance of cancellation.
(4)
Insurance policy renewal: Renewal or replacement policies shall
be delivered to the Town of Somerset at least 15 days before the expiration
of the insurance that such policies are to renew or replace.
(5)
Copies of insurance policy: No more than 15 days after the grant
of the permit before construction is initiated, the permit holder
shall deliver to the Town of Somerset a copy of each of the policies
or certificates representing the insurance in the required amounts.
(6)
Certificate of insurance: A certificate of insurance that states
it is for informational purposes only and does not confer sufficient
rights upon the Town of Somerset shall not be deemed to comply with
this article.
(7)
Indemnification: Any application for a solar energy system within
the Town of Somerset shall contain an indemnification provision. The
provision shall require the applicant/owner/operator to at all times
defend, indemnify, protect, save, hold harmless and exempt the Town
of Somerset and its officers, councils, employees, attorneys, agents
and consultants from any and all penalties, damages, costs or charges
arising out of any and all claims, suits, demands, causes of action
or award of damages whether compensatory or punitive, or expenses
arising therefrom either at law or in equity which might arise out
of or are caused by the placement, construction, erection, modification,
location, equipment's performance, use, operation, maintenance,
repair, installation, replacement, removal or restoration of said
solar energy system, excepting however, any portion of such claims,
suits, demands, causes of action or award of damages as may be attributable
to the negligent or intentional acts or omissions of the Town of Somerset
or its employees or agents. With respect to the penalties, damages,
or changes referenced herein, reasonable attorneys' fees, consultant'
fees and expert witness fees are included in those costs that are
recoverable by the Town of Somerset.
A.
All Tier 4 solar energy systems are permitted through the issuance
of a special use permit within the Industrial, General Industry, and
Planned Unit Development Zoning Districts, and subject to site plan
and special use permit requirements as set forth previously in this
article and in addition to the Tier 3 requirements set forth above.
B.
Notwithstanding Article XVA of Chapter 205 of the Town Code of the Town of Somerset, Tier 4 solar energy systems shall be permitted through the process set forth in this article. The requirements set forth in Article XV of Chapter 205 of the Town Code shall not be applicable to Tier 4 solar energy systems within a Planned Unit Development District.
C.
In order to ensure that the benefits of the community solar energy
resource are available to the entire community, the Town of Somerset
shall require all Tier 4 applicants to enter into a solar energy system
host community agreement.
D.
These Tier 4 systems are very large systems that have a potential
to significantly impact on the Town of Somerset, its citizens, the
character, and the economy of the community. Therefore, the Tier 4
systems shall require the following additional (in addition to those
in the Tier 3 level) submittals and requirements, or include revisions
to Tier 3 requirements:
(1)
Any Tier 4 solar energy system shall not be permitted on any
agricultural property, lot or parcel that contains 25% or more land
classified as prime farmland or farmland of statewide importance.
(2)
Tier 4 systems shall not be allowed in the waterfront protection,
agriculture/agritourism, land of statewide importance and environmentally
sensitive areas of the Town as denoted on the Vision Map of the Town
of Somerset Comprehensive Plan (on file with the Town Clerk). They
also cannot be located within a one-half mile of any other Tier 3
or Tier 4 system.
(3)
Submittal of an agricultural impact statement to determine the
solar system's impact on agriculture in the Town. The Planning
Board, on a project-by-project basis, can amend the scope and detail
of information required from the applicant; and the applicant should
consult with New York State Agriculture and Markets, USDA and the
Natural Resources Conservation District (NRCS) representatives in
preparation of this statement.
(4)
Submittal of an economic impact analysis to determine the effect
a solar energy project will have on the economy of the Town. This
includes those outlined in the agricultural impact statement and other
factors related to commerce, employment, housing, transportation,
tourism, education, environmental protection, municipal services,
revenues and taxation. The Planning Board, on a project-by-project
basis, can further amend the scope and detail of information required
from the applicant.
If the owner or operator of the solar energy 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, and decommissioning plan. The new owner/operator must
also submit new "security/bonds" for approval by the Town attorney.
A new owner or operator of the solar energy system shall notify the
Zoning Enforcement Officer, Town Planning Board, Niagara County Planning
Board and Town Attorney of such change in ownership or operator 30
days prior to ownership change.
A.
Solar energy systems and solar energy equipment shall be certified
under the applicable electrical and/or building codes as required.
B.
Solar energy 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 solar energy system is located in an ambulance district,
the local ambulance corps.
C.
If storage batteries are included as part of the solar energy system,
they shall meet the requirements of any applicable local law (including
the Town of Somerset's Battery Energy Storage Law[1]), fire prevention and building code when in use and, when
no longer used, shall be disposed of in accordance with the laws and
regulations of the Town and any applicable federal, state, or county
laws or regulations.
A.
The special use permit and site plan approval for a solar energy
system shall be valid for a period of 18 months, provided that construction
has 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 18 months after approval, the
applicant or the Town may extend the time to complete construction
for a one-time extension of six months. If the owner and/or operator
fails to perform substantial construction after 24 months, the approvals
shall expire.
B.
Inspections. Upon reasonable notice, the Town of Somerset Building
Inspector or his or her designee may enter a lot on which a solar
energy system has been approved for the purpose of compliance with
any requirements or conditions. Twenty-four hours' advance notice
by telephone to the owner/operator or designated contact person shall
be deemed reasonable notice. Furthermore, a utility-scale solar energy
system shall be inspected annually by a New York State licensed professional
engineer that has been approved by the Town or, at any other time,
upon a determination by the Town's Building Inspector that damage
may have occurred, and a copy of the inspection report shall be submitted
to the Town Building Inspector. Any fee or expense associated with
this inspection shall be borne entirely by the permit holder.
C.
Construction inspections.
(1)
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 C(2) of this section is ready for inspection.
(2)
Elements of work to be inspected. The following minimal elements
of the construction process shall be inspected, where applicable:
(a)
Work site prior to the issuance of a building permit;
(b)
Footing and foundation;
(c)
Preparation for concrete slab;
(d)
Framing;
(e)
Building systems, including underground and rough-in;
(f)
Fire-resistant construction;
(g)
Fire-resistant penetrations;
(h)
Solid-fuel-burning heating appliances, chimneys, flues or gas
vents; and
(i)
Energy Code compliance.
(3)
Inspection after all work authorized by the building permit
has been completed and signed off by the Town Building Inspector and
Town Engineer.
(4)
A final inspection by the fire marshal must be completed prior
to activation.
(5)
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.
D.
General complaint process. During construction, the Town Building
Inspector can issue a stop order at any time for any violations of
a special permit or building permit. After construction is complete,
the permit holder of a utility-scale solar energy system shall establish
a contact person, including name and phone number, for receipt of
any complaint concerning any permit requirements.
E.
Continued operation. A solar energy system shall be maintained in
operational condition at all times, subject to reasonable maintenance
and repair outages. Operational condition includes meeting all approval
requirements and conditions. Further, the Building Inspector shall
also have the right to request documentation from the owner for a
solar energy system regarding the system's usage at any time.
(1)
Annual report. The owner and/or operator of a large-scale solar
energy system must submit to the Town's Code Enforcement Officer
a yearly report, due no later than February 15, which is certified
as accurate and complete under penalty of perjury and contains the
following information:
(a)
The rated capacity of the system;
(b)
The amount of electricity generated by the system in the most
recent twelve-month period;
(c)
The amount of electricity transmitted to the power grid in the
most recent twelve-month period;
(d)
Identifying any change of ownership of the large-scale solar
energy system or the owner of the land upon which it is sited;
(e)
Identifying any change in the party responsible for decommissioning
and removal of the system upon its abandonment; and
(f)
Evidence that the surety required for decommissioning remains
in effect and is irrevocable for at least the next two years.
(g)
Annual testing of groundwater and wells and a report of the
findings provided to the Town.
F.
Removal. All solar energy systems shall be dismantled and removed
immediately from a lot when the special permit or approval has been
revoked by the Town of Somerset Planning Board or the solar energy
system has been deemed inoperative or abandoned by the Building Inspector
for a period of more than 365 days at the cost of the owner. If the
owner does not dismantle and remove said solar energy system as required,
the Town Board may, after a hearing at which the owner shall be given
an opportunity to be heard and present evidence, dismantle and remove
said facility and place the cost of removal as a tax lien on said
parcel. All materials to be removed shall be disposed of in a proper
manner and in accordance with Niagara County law, preferably recycled.
G.
Determination of abandonment or inoperability. A determination of
the abandonment or inoperability of a solar energy system shall be
made by the Town Building Inspector, who shall provide the owner with
written notice by personal service or certified mail. Any appeal by
the owner of the Building Inspector's determination of abandonment
or inoperability shall be filed with the Town of Somerset Zoning Board
of Appeals within 30 days of the Building Inspector causing personal
service or mailing by certified mail his written determination, and
the Board shall hold a hearing on same. The filing of an appeal does
not stay the following time frame unless the Zoning Board of Appeals
or a court of competent jurisdiction grants a stay or reverses said
determination. At the earlier of the 366 days from the date of determination
of abandonment or inoperability without reactivation or upon completion
of dismantling and removal, any approvals for the solar energy system
shall automatically expire. Removal of the system must be in accordance
with the approved decommissioning plan.
H.
If the owner and/or operator fails to comply with decommissioning
upon any abandonment as outlined previously, the Town may, at its
discretion, utilize the bond and/or security for the removal of the
solar energy system and restoration of the site in accordance with
the decommissioning plan.
I.
Application and annual fees. Application and annual fees shall be
set by the Town Board and include the following:
(1)
Tier 3 and 4 solar energy systems. An applicant shall pay an
initial application fee upon filing its special permit and site plan
application to cover the cost of processing and reviewing the application.
If approved, the owner shall pay an annual fee to cover the cost of
processing and reviewing the annual inspection report and for administration,
inspections and enforcement.
(2)
Site plan application for a ground-mounted solar energy system.
An applicant shall pay the standard site plan review fee as determined
from time to time by the Town Board, by resolution.
(3)
The applicant shall pay the costs of the Town's engineers
and attorneys for time spent reviewing and analyzing the application.
(4)
The Town of Somerset reserves the right to, by local law, provide
that no exemption pursuant to the provision of New York State Real
Property Tax Law (RPTL) § 487 shall be applicable within
its jurisdiction.
J.
The Town of Somerset requires that the applicant complete all the
requirements of the Town Infrastructure Preservation Law.[1] Prior to the issuance of a building permit, the applicant
shall document that all applicable federal, state, county, and local
permits have been obtained.
K.
Upon cessation of electricity generation of a solar energy system
on a continuous basis for 12 months, the Town may notify and instruct
the owner and/operator of the solar energy system to implement the
decommissioning plan.
A.
If the applicant violates any of the conditions of its special permit
or site plan approval, or violates any other local, state or federal
laws, rules or regulations, this shall be grounds for revocation of
the special permit or site plan approval. Revocation may occur after
the applicant is notified in writing of the violations and the Town
of Somerset Planning Board holds a hearing on same.
B.
Any violation of this Solar Energy Law shall also be subject to the
same enforcement requirements, including the civil and criminal penalties,
provided for in the zoning or land use regulations of the Town.
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.
