[HISTORY: Adopted by the Town Board of the Town of Ogden 6-23-2021 by L.L. No. 2-2021. Amendments noted where applicable.]
This chapter shall be referred to as "Local Law #2 of 2021 Adding Chapter 306 to the Ogden Town Code Concerning Battery Energy Storage Systems."
This chapter is adopted pursuant to the New York State Constitution
Article IX, Town Law § 261-264 and Municipal Home Rule Law
§ 10.
This chapter is adopted to advance and protect the public health,
safety, welfare, and quality of life of the Town of Ogden (hereinafter
referred to as Ogden) by creating regulations for the installation
and use of battery energy storage systems, with the following objectives:
A.
To provide a regulatory scheme for the designation of properties
suitable for the location, construction and operation of battery energy
storage systems.
B.
To ensure compatible land uses in the vicinity of the areas affected
by battery energy storage systems.
C.
To mitigate the impacts of battery energy storage systems on environmental
resources such as important agricultural lands, forests, wildlife
and other protected resources.
D.
To create synergy between battery energy storage system development
and other stated goals of Ogden pursuant to its Comprehensive Plan.
E.
This chapter does not supersede any other state or federal regulation
pertaining to electrical storage laws. Any conflict between this chapter
with state law, federal law and/or related utility regulations shall
be resolved by application of state law, federal law or utility regulation.
F.
To ensure that these storage systems shall be in conformance with
applicable regulations set forth in the New York State Uniform Code.
As used in this chapter, the following terms shall have the
meanings indicated:
American National Standards Institute.
An electronic system that protects energy storage systems
from operating outside their safe operating parameters and disconnects
electrical power to the energy storage system or places it in a safe
condition if potentially hazardous temperatures or other conditions
are detected.
One or more devices assembled together and capable of storing
energy in order to supply electrical energy at a future time, not
to include a stand-alone twelve-volt car battery or an electric motor
vehicle. A battery energy storage system is classified as a Tier 1
or Tier 2 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.
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 single cell or a group of cells connected together electrically
in series, in parallel, or a combination of both, which can charge,
discharge, and store energy electrochemically. For the purposes of
this chapter, batteries utilized in consumer products are excluded
from these requirements.
The basic electrochemical unit, characterized by an anode
and a cathode used to receive, store, and deliver electrical energy.
A systematic process that provides documented confirmation
that a battery energy storage system functions according to the intended
design criteria and complies with applicable code requirements.
A systematic process for the removal of the battery energy
storage system from the property and the restoration of the property
at abandonment or closure of the system including financial responsibility
of its removal.
A building that is built for the primary intention of housing
battery energy storage system equipment and is classified as Group
F-1 occupancy as defined in the International Building Code, all in
compliance 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 systems and other energy
systems.
Administrative and support personnel are permitted in areas
within the buildings that do not contain a 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, daycare facilities, hospitals, correctional facilities,
public libraries, theaters, stadiums, apartments, hotels and houses
of worship.
A battery energy storage system host property or any real
property that is the subject of an agreement that provides for the
payment of monetary compensation to the landowner from the battery
energy storage system owner (or affiliate) regardless of whether any
part of a battery energy storage system is constructed on the property.
Underwriters Laboratory, an accredited standards developer
in the United States.
The New York State Uniform Fire Prevention and Building Code
adopted pursuant to Executive Law Article 18 as currently in effect
and as may be amended from time to time.
A.
The requirements of this chapter shall apply to all battery energy
storage systems permitted, installed or modified in Ogden after the
effective date of this chapter.
B.
Battery energy storage systems constructed or installed prior to
the effective date of this chapter shall not be required to meet the
requirements of this chapter.
C.
Modifications to, retrofits of or replacements of an existing battery
energy storage system that increase the total battery energy storage
systems designed discharge duration or power rating shall be subject
to this chapter.
A.
A building permit shall be required for installation of all battery
energy storage systems issued by the Ogden Building Department. An
electrical inspection must be conducted by an approved electrical
inspection agency for Ogden.
B.
Issuance of approvals by the Ogden Planning Board for Tier 2 systems
and shall include review pursuant to the State Environmental Quality
Review Act including 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 contain or are otherwise
associated with a battery energy storage system and subject to the
Uniform Code and/or the Energy Code shall be designed, erected, and
installed in accordance with all applicable provisions of said codes
as well as all applicable provisions of the Ogden Town Code.
Tier 1 battery energy storage systems shall be permitted in
all zoning districts, subject to the Uniform Code and the "battery
energy storage system permit," and exempt from site plan review. Permits
shall be issued by the Ogden Building Department.
A.
Tier 2 battery energy storage systems are permitted in all zoning
districts through the issuance of a conditional use permit, and shall
be subject to the Uniform Code and the site plan application requirements
set forth in this section.
B.
Applications for the installation of Tier 2 battery energy storage
system shall be:
(1)
Reviewed by the Ogden Planning Board for completeness. An application
shall be complete when it addresses all matters listed in this chapter
including, but not limited to, compliance with the Uniform Code, the
Energy Code, addressing matters relating to floodplain, utility lines,
electrical circuitry, signage, lighting, vegetation, tree-cutting,
noise, decommissioning, site plan considerations, conditional use
considerations, ownership changes, safety, emergency operation plan,
easements, permit time frame and abandonment. Applicants shall be
advised within 15 business days as to the status of the application.
(2)
Subject to a public hearing to hear all comments for and against
the application. The Ogden Planning Board shall have a notice printed
in a newspaper of general circulation in Ogden at least five days
in advance of such hearing. Applicants shall deliver the notice by
first class mail to adjoining landowners or landowners within 500
feet of the property at least 10 days prior to such hearing. Proof
of mailing shall be provided to the Ogden Planning Board at the public
hearing.
(3)
Referred to the Monroe County Planning Department pursuant to General
Municipal Law § 239-m if required.
(4)
Upon closing of the public hearing, the Ogden Planning Board shall
take action on the application within 62 days of the public hearing,
which can include approval, approval with conditions, or denial. The
sixty-two-day period may be extended upon consent by both the Ogden
Planning Board and the applicant.
(5)
Upon approval of the Ogden Planning Board, any application for a
building permit is to be made to the Ogden Building Department.
C.
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/or any new interconnection
equipment including poles with new easements and right-of-way.
D.
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, the type of suppression system installed
in the area of battery energy storage systems and twenty-four-hour
emergency contact information including a 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.
E.
Lighting. Lighting of the battery energy storage systems shall be
limited to that minimally required for safety purposes, operational
purposes, said lighting to be reasonably shielded and downcast from
abutting properties.
F.
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 combustible growth. Single specimens of trees, shrubbery,
or cultivated ground cover such as green grass, ivy, succulents or
similar plants used as ground covers shall be exempt provided that
they do not form a means of readily transmitting fire. Removal of
trees should be minimized to the extent possible.
G.
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 60 dBA as measured at the outside wall
of any nonparticipating residence or occupied community building.
Applicants may submit equipment and component manufacturer's
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.
H.
Site plan application is to be made to the Ogden Planning Board.
For a Tier 2 battery energy storage system requiring a conditional
use permit, site plan approval shall be required. Any 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, planting, exterior lighting and screening vegetation or
structures.
(3)
Name, address and contact information of the proposed or potential
system installer and the owner and/or operator of the battery energy
storage system. Information of the final system installer shall be
submitted prior to the issuance of building permit.
(4)
Name, address, phone number and signature of the project applicant
as well as all property owners indicating their consent to the application
for use of the property for the battery energy storage system.
(5)
Zoning district designation for the parcel(s) of land comprising
the project site.
(6)
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
Ogden Planning Board.
I.
Building plan (permit) application is to be made to the Ogden Building
Department after Ogden Planning Board approval. For a Tier 2 battery
energy storage system, building plan approval shall be required. Any
building plan application shall include the following information:
(1)
A one- or three-line 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.
(2)
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 a building permit.
(3)
Name, address and contact information of the proposed or potential
system installer and the owner and/or operator of the battery energy
storage system. Information of the final system installer shall be
submitted prior to the issuance of building permit.
(4)
Name, address, phone number and signature of the project applicant
as well as all property owners indicating their consent to the application
for use of the property for the battery energy storage system.
(5)
Commissioning plan. Such plan shall satisfactorily verify that the
system and its associated controls and safety systems are in proper
working condition as set forth in the Uniform Code. Where commissioning
is required by the Uniform Code, same 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 including the results of the
initial acceptance testing required in the Uniform Code shall be provided
to the Ogden Planning Board and Ogden Building Department prior to
final inspection and approval and thereafter maintained at an approved
on-site location.
(6)
Fire safety compliance plan. Such plan shall satisfactorily verify
that the system, associated controls and safety systems are in compliance
with the Uniform Code.
(7)
Operation and maintenance manual. The plan shall describe continuing
battery energy storage system maintenance, property upkeep, design,
construction, installation, testing and commissioning information,
all in conformity with the Uniform Code.
(8)
Prior to the issuance of a building permit or final approval by the
Planning Board, but not required as part of the application, engineering
documents must be signed and sealed by a NYS licensed professional
engineer.
(9)
Emergency operations plan. A copy of the approved emergency operations
plan shall be given to the system owner, the local fire department
and the 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, all to also ensure
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 that identify potentially
dangerous conditions, including shutting down equipment, summoning
service 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/or controlling or 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 Ogden to provide
for the safety of occupants, neighboring properties and emergency
responders.
(h)
Procedures and schedules for conducting drills of all procedures
and for training local first responders on the contents of the plan
and appropriate response procedures.
(10)
An operating permit must be issued by the Building Department.
J.
Conditional use permit standards.
(1)
Setbacks. Tier 2 battery energy storage systems shall comply with
the setback requirements of the existing zoning district. In the event
the battery energy storage system will be used for energy storage
in conjunction with a solar farm, the battery energy storage system
must be contained within the perimeter of the approved solar farm.
(2)
Height. Tier 2 battery energy storage systems shall comply with the
building height limitations for principal structures of the existing
zoning district.
(3)
Fencing requirements. Tier 2 battery energy storage systems, including
all mechanical equipment, shall be enclosed by an eight-foot-high
fence with a self-locking gate to prevent unauthorized access unless
housed in a dedicated use building and not interfering with ventilation
or exhaust ports.
(4)
Screening and visibility. Tier 2 battery energy storage systems shall
have views minimized from adjacent properties to the extent reasonably
practicable using architectural features, earth berms, landscaping
or other screening methods that will harmonize with the character
of the property and surrounding area so as not to interfere with ventilation
or exhaust ports.
K.
Ownership changes. If any owner of a battery energy storage system
changes, or if the owner of the property changes, the conditional
use permit shall remain in effect provided that the successor owner
or operator assumes in writing all of the obligations of the conditional
use permit, site plan approval and decommissioning plan. A new owner
or operator of the battery energy storage system shall notify the
Ogden Building Department 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 Ogden Building Department in writing.
The conditional use permit and all other local approvals for the battery
energy storage system will become void if a new owner or operator
fails to provide written notification to the Ogden Building Department
in the required time frame. Reinstatement of a void conditional use
permit will be subject to the same review and approval processes for
new applications under this chapter.
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)
UL 1741 or UL 62109 (inverters and power converters).
(4)
Certified under the applicable electrical, building, and fire prevention
codes as required.
(5)
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. Battery energy storage systems shall be maintained in
good working order and in accordance with industry standards. Site
access shall be maintained, including snow removal at a level acceptable
to the local fire department and, if the Tier 2 battery energy storage
system is located in an ambulance district, the local ambulance corps.
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.
Any battery energy storage system shall be considered abandoned after
six months without electrical energy storage and must be removed from
the property. Applications for extensions subsequent to such an abandonment
as described in the previous sentence can be reviewed by the Ogden
Planning Board for a period of up to six months after such abandonment.
B.
All applications for any battery energy storage system shall include
and be accompanied by a decommissioning plan to be implemented upon
abandonment and/or in conjunction with the removal of same and shall:
(1)
Include an affirmative obligation and acknowledgement that after
any battery energy storage system can no longer be used it shall be
removed by the applicant and/or any subsequent owner.
(2)
Demonstrate how the removal of all infrastructure and the remediation
of soil and vegetation shall be conducted to return the parcel to
its original state prior to construction.
(3)
Include an expected timeline for execution and completion.
(4)
Include a detailed cost estimate detailing the projected expense
of executing the decommissioning plan to be prepared and signed by
a professional engineer or registered architect.
(5)
Obligate the owner, operator and/or successors in interest to remove
any installations that have reached the end of their useful life or
have been abandoned, physically remove the installation no more than
six months after the date of discontinued operations and also notify
Ogden by certified mail of the proposed date of discontinued operations
and the plans for removal.
(6)
An obligation to physically remove all battery storage systems, structures,
equipment, security barriers and transmission lines from the site.
(7)
Include an obligation to dispose of all solid and hazardous waste
in accordance with local, state and federal waste disposal regulations.
C.
Absent notice of a proposed date of decommissioning and written notice of extenuating circumstances, any battery storage system shall be considered abandoned when it fails to operate (as set forth in Subsection A of this section) for more than six months without the written consent of Ogden. If the owner or operator of any battery energy storage system fails to remove the installation in accordance with the requirements of this section within six months of abandonment or the proposed date of decommissioning, Ogden may enter the property and physically remove the installation upon application to a court of appropriate jurisdiction to obtain access to said property for that purpose.
D.
In the event that an application is approved for a battery energy
storage system, the Ogden Planning Board shall require that the applicant
and/or property owner provide or establish a letter of credit or financial
deposit, the amount, substance and character of which is to be determined
by and at the sole discretion and approval of the Ogden Planning Board
and/or the Ogden Town Board, the spirit and intent of same being to
ensure that sufficient funds are available to remove the installation
and restore landscaping consistent with the best interests of the
landowner and/or Ogden in the event the applicant fails to comply
with its decommissioning obligations with same to be annually reviewed
for financial sufficiency (with any decision relating to continued
financial sufficiency also to be in the sole discretion and approval
of the Ogden Planning Board and/or the Ogden Town Board). As a part
of the foregoing review process, an owner or operator shall provide
financial documentation, financial statements or any other information
requested by the Ogden Planning Board and/or the Ogden Town Board
on an annual basis. Ogden reserves the right to request reasonable
access to the property upon notice and consent.
The conditional 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 Ogden Planning Board, within 24 months after approval,
Ogden 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.
Any violation of this battery energy storage system chapter
shall be subject to the same enforcement requirements, including the
civil and criminal penalties, provided for in the Ogden Zoning or
Land Use Regulations.
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.
This chapter shall take effect upon the date it is filed in
the Office of the New York State Secretary of State in accordance
with the Municipal Home Rule Law § 27.
