[Added 5-23-2022 by L.L. No. 1-2022]
A.
Authority. This article is adopted pursuant to Article IX of the New York State Constitution, § 2(c)(6) and (10), New York Statute of Local Governments, § 10(1) and (7); § 261-263 of the Town Law and § 10 of the Municipal Home Rule Law of the State of New York, which authorize the Towns to adopt zoning provisions that advance and protect the health, safety and welfare of the community.
B.
Statement of purpose. This article is adopted to advance and protect
the public health, safety, welfare, and quality of life of the Town
of Tonawanda by creating regulations for the installation and use
of battery energy storage systems, 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)
To mitigate the impacts of battery energy storage systems on
environmental resources such as important agricultural lands, forests,
wildlife and other protected resources.
(4)
To protect the public health and safety of the residents of
the Town of Tonawanda.
(5)
To regulate the development of battery energy storage systems
in accordance with the Town's Comprehensive Plan.
As used in this article, 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 stand-alone 12-volt car battery or an electric motor
vehicle. A battery energy storage system is classified as a Tier 1,
Tier 2 (Tier 2A and 2B) 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 600 kWh and, if in a room or enclosed
area, consist of only a single energy storage system technology. These
are accessory uses to a principal use and are intended for energy
use by the principal use and do not exceed storage of 110% of two
days' of energy for the user (as determined by the Town Building
Department).
Tier 2 battery energy storage systems have an aggregate energy
capacity greater than 600 kWh or are comprised of more than one storage
battery technology in a room or enclosed area (a Tier 2A system) or
in an outdoor area (a Tier 2B system). These are accessory uses to
a principal use and are intended for energy use by the principle use
and do not exceed storage of 110% of two days' of energy for
the user (as determined by the Town Building Department).
Tier 3 battery energy storage systems (utility grade system)
are systems that are designed independent of a user, with a purpose
to store energy and then put that energy back into the power grid.
They can be an accessory or primary use on a site. They also include
any system not meeting the definition/requirements of a Tier 1 or
Tier 2 system.
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 article, 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 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, as currently in effect and as hereafter amended from
time to time.
A U.S. 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 nonparticipating 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 U.S.
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.
A.
The requirements of this article shall apply to all battery energy
storage systems permitted, installed, or modified in Town of Tonawanda
after the effective date of this article, excluding general maintenance
and repair.
B.
Battery energy storage 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, retrofits or replacements of an existing battery
energy storage system that increase the total battery energy storage
system designed discharge duration or power rating shall be subject
to this article.
A.
A building permit, an electrical permit and potentially an operating
permit shall be required for installation of all battery energy storage
systems.
B.
Issuance of permits and approvals by the Tonawanda Town Board or
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.
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) subject to
the 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 Uniform Code, the Energy Code, and the Town Code.
D.
Fees. Fees as set by the Town Board periodically by resolution must
be paid at the time of submission of an application for site plan
approval, special use permit, a building permit, for an amended building
permit, or for renewal of a building permit. The applicant, for Tier
2 or 3 projects, may also be required to pay the costs of the Town's
engineers and attorneys or outside professional consultants for time
spent reviewing and analyzing the application.
Tier 1 battery energy storage systems shall be permitted in
all zoning districts, subject to the Uniform Code, all other applicable
Codes and the battery energy storage system permit, and are exempt
from site plan review.
Tier 2A battery energy storage systems are located within a
structure shall be permitted in all zoning districts, subject to the
Uniform Code, all other applicable Codes, the battery energy storage
system permit, and an operating permit, and are exempt from site plan
review. Tier 2B battery energy storage system is located exterior
of the primary building on site and shall be permitted through the
issuance of site plan approval and an operating permit within all
zoning districts except any residential zoning districts (those districts
where residential is allowed) and shall be subject to the Uniform
Code and the site plan application requirements set forth in this
section. Tier 2B battery energy storage systems associated with a
solar or wind energy project shall also only be allowed in conformance
with the Town laws associated with these type projects (only allowed
in the zoning districts that allow a solar and/or wind project). Applications
for the installation of a Tier 2B battery energy storage system have
the following requirements:
A.
They shall be reviewed by the Code Enforcement Officer and the Town
Planning Department for completeness. An application shall be complete
when it addresses all matters listed in this article 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. Any deficiencies in the application
must be addressed prior to substantive review.
B.
They shall be referred to the County Planning Board pursuant to General
Municipal Law § 239-m, if required.
C.
The Planning Board shall take action on the application after the
SEQR process is completed, which can include approval, approval with
conditions, or denial.
D.
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.
E.
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.
F.
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.
In accordance with Town law, there shall be no light spillage onto
adjoining properties.
G.
Vegetation and tree-cutting. Areas within 10 feet on each side of
Tier 2 battery energy storage systems shall be cleared of combustible
vegetation and other combustible growth in accordance with all applicable
codes. 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. Removal of trees
should be minimized to the extent possible.
H.
Noise. The one-hour average noise generated from the battery energy
storage systems, components, and associated ancillary equipment shall
not exceed a noise level of 45 dBA as measured at the outside wall
of any nonparticipating residence or occupied community building.
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.
I.
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 may be required to include the following
(Planning Board or Town Board to determine the extent of this plan
depending on size and location of the installation):
(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, ancillary equipment and below ground
infrastructure, 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.
J.
Site plan application. For a Tier 2B battery energy storage system
the site plan application shall include the following information:
(1)
Property lines and physical features, including 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 over current 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 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.
(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. Such plan shall document and verify
that the system and its associated controls and safety systems are
in compliance with the Uniform Code.
(10)
Operation and maintenance manual. Such plan shall describe continuing
battery energy storage system maintenance and property upkeep, as
well as design, construction, installation, testing and commissioning
information and shall meet all requirements set forth in the Uniform
Code.
(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 Tonawanda and by the Town Board through the approval
process.
(12)
Prior to the issuance of the building permit, but not required
as part of the application engineering documents must be signed and
sealed by a NYS licensed professional engineer.
(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. The emergency operations
plan shall include the following information:
(a)
Procedures for safe shutdown, deenergizing, or isolation of
equipment and systems under emergency conditions to reduce the risk
of fire, electric shock, and personal injuries, and for safe start-up
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)
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, deenergizing
equipment, and controlling and extinguishing the fire.
(e)
Response considerations similar to a safety data sheet (SDS)
that will address response safety concerns and extinguishment when
an SDS is not required.
(f)
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.
(g)
Other procedures as determined necessary by the Town to provide
for the safety of occupants, neighboring properties, and emergency
responders.
(h)
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.
K.
Additional standards (Tier 2B projects).
(1)
Setbacks. Tier 2B battery energy storage systems shall comply
with the setback requirements of the underlying zoning district for
principal structures, or as prescribed in the following paragraphs,
whichever is greater.
(2)
Height. Tier 2B battery energy storage systems shall comply
with the building height limitations for accessory structures of the
underlying zoning district, or as required by the Fire Code.
(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, or as otherwise required by any federal, state or
local laws or codes.
(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.
Tier 3 battery energy storage systems are permitted only in
the General Industrial, Waterfront Industrial and Performance Standards
zoning districts, as restricted below, through the issuance of a special
use permit, site plan approval, and an operating permit and shall
be subject to the Uniform Code and the site plan application requirements
set forth in the Tier 2B section[1] with the below additional requirements, and other applicable
sections of these regulations and the Town Code. Tier 3 battery energy
storage systems are also restricted from (not allowed) the lands located
on the "river side" of River Road, no matter what the zoning is of
the site.
A.
Special use permit standards (Tier 3 projects).
(1)
Setbacks. Tier 3 battery energy storage systems (as measured
from the fence line) shall be setback a minimum of 20 feet from any
property line, or as prescribed in the following paragraphs, whichever
is greater.
(a)
Shall not be placed in the front yard (for a property having
a principal use). For a property not having a principal use or the
BESS is the principal use, the front yard setback shall be at least
200 feet.
(b)
Shall be set back a minimum of 100 feet from any side yard or
rear yard if abutting a property in a residential district or a property
with a residential use.
(c)
Shall be set back a minimum of 20 feet from a side yard or rear
yard abutting any property in a commercial district.
(d)
Shall be set back a minimum of 20 feet from a side yard or rear
yard abutting any nonparticipating property in an Industrial district,
and 20 feet for a participating property in an Industrial district.
(e)
Shall be set back a minimum of 100 feet from a side yard or
rear yard abutting any nonparticipating property containing a petroleum
storage tank and at least 200 feet from the tank itself. If a participating
property, the setback from the tank shall be a minimum of 200 feet
or as prescribed by any other law or requirement, whichever is greater.
(f)
Shall be set back a minimum of 20 feet from a side yard or rear
yard abutting any nonparticipating property containing electrical
infrastructure (substation, electrical towers, etc.).
(g)
Shall not be located within 200 feet any public park or recreation
facility.
(2)
Height. Tier 3 battery energy storage systems shall have building/structure
height limitation of 20 feet.
(3)
Fencing requirements. Tier 3 battery energy storage systems,
including all mechancial equipment, shall be enclosed by a seven-foot-high
fence with a self-locking gate to prevent unauthorized access, or
as otherwise required in federal, state, local laws and codes including
national codes and standards, and/or professional consensus standards.
(4)
Screening and visibility. Tier 3 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. The Planning Board shall provide
the direction on the location and type of screening based on a visual
analysis/study to be submitted by the applicant.
(5)
Safety standards. Tier 3 battery energy storage systems shall
meet all required New York State and federal safety standards including,
but not limited to requirements for spill containment, personal protection
(eye-wash stations, safety showers, etc.) and fire suppression. After
completion of a Tier 3 system but prior to beginning operation, the
fire department and applicable emergency service providers will be
provided a training and education day with the owner and equipment
manufacturers on the system (at the cost of the owner/applicant).
(6)
A road use agreement with the Town may be required if utilizing
Town roads for construction access.
B.
Additional site plan and other requirements for Tier 3 systems.
(1)
Access design. Due to the nature of these large facilities,
it will be a requirement to have a primary and secondary means of
access from the public right-of-way (ROW) to the site. The ROW used
for access shall not be a dead-end road. Access shall be provided
through roadways/driveways designed to Town standards with input from
emergency service providers. Primary and secondary access may be created
through a public improvement permit.
(2)
Any infrastructure to be placed to service the site (water,
sewer, etc.) must meet Town and other applicable standards. Public
water and sewer extensions may be provided through a public improvement
permit.
(3)
A noise study will be required addressing noises and tonal issues.
C.
Decommissioning fund. The owner and/or operator of any Tier 3 battery
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 accordance with the approved
decommissioning plan), in an amount to be determined by the Town (based
on 125% of the estimated value for decommissioning), for the period
of the life of the facility. This estimate will be updated on a prescribed
basis and account for inflation, and the fund or bond will reflect
these revised estimates. This fund may consist of a letter of credit
from a State of New York licensed financial institution. All costs
of the financial security shall be borne by the applicant. The applicant
shall also provide a notarized acknowledgement that if the costs for
removal of battery facility exceed the bond for decommissioning, the
battery developer/owner are fully fiscally responsible.
A.
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:
(1)
UL 1973 (Standard for Batteries for Use in Stationary, Vehicle
Auxiliary Power, and Light Electric Rail Applications),
(2)
UL 1642 (Standard for Lithium Batteries),
(3)
Other standards for other battery types,
(4)
UL 1741 or UL 62109 (Inverters and Power Converters),
(5)
Certified under the applicable electrical, building, and fire
prevention codes as required.
(6)
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.
B.
Site access maintenance. 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 emergency service providers.
C.
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 2B or Tier
3 battery energy storage system and restoration of the site in accordance
with the decommissioning plan. The Town retains the sole right to
make the determination site decommission completion (whether by the
site owner or by the Town through the security). Any costs borne by
the Town to make the determination that the site is decommissioned
fully may be passed on to the developer/site owner.
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 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.
(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 inspector 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.
D.
Fee. A fee will be set by the Town Board for construction inspections
and that fee must be paid prior to or at the time of each inspection
performed pursuant to this section.
E.
At the completion of construction, the applicant shall have an engineer
inspect and certify (PE stamped) that the project has been constructed
in accordance with all required standards and in accordance with Town
approvals.
A.
If the owner (or lessee) of the battery energy storage system changes
or the owner of the property changes, the special use permit and/or
operating permit shall remain in effect, provided that the successor
owner or operator assumes in writing all of the obligations of any
special use permit, operating permit, site plan approval, and decommissioning
plan. A new owner or operator of the battery energy storage system
shall notify the Town of Tonawanda 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.
B.
The successor owner or operator shall assume in writing all of the
obligations within the decommission plan. Proof of acknowledgement
of the decommission plan and proof of bond may be requested by the
Town at time of ownership change. The new owner should sign the acknowledgement
regarding the costs exceeding the bond. The special use permit and/or
operating 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 and/or operating permit will be subject
to the same review and approval processes for new applications under
this article.
A.
This section shall be enforced by the Town Code Enforcement Officer.
(1)
Any person owning, controlling, or managing any building, structure
or land who shall undertake a battery energy storage system in violation
of this section, or who operates such facility in noncompliance with
the terms and conditions of any permit issued pursuant to this section,
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.
(2)
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.
(3)
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.
B.
BESSs requiring an operating permit, shall be required to submit
a certified report by the owner and be inspected annually, and shown
to be in accordance with the operating permit and any other approvals.
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 § 215-195, Enforcement; penalties and remedies for violations, of this article 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.
