[Added 3-9-2017 by L.L.
No. 1-2017; amended 6-13-2019 by L.L. No. 2-2019; 6-10-2021 by L.L. No. 1-2021]
This Solar Energy Local Law is adopted pursuant to §§ 261-263
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 therefor."
The Town finds that restrictions of regulations in regard to
the use of land within the Town for solar power projects or private
solar projects are appropriate to properly address community impact,
concerns or issues in a manner in which is meaningful and consistent
with the Comprehensive Plan of the Town.
A.
The Town Board of the Town of Concord recognizes that solar energy
is a clean, readily available and renewable energy source and the
Town of Concord intends to responsibly consider the use of solar energy
systems. The Town of Concord also desires to adopt zoning provisions
that advance and protect the health, safety, and welfare of the community,
and "to make provision for," so far as conditions may permit, the
accommodation of solar energy systems and equipment.
B.
This chapter is adopted to advance and protect the public health,
safety, and welfare of the Town of Concord, including:
(1)
Taking advantage of a safe, abundant, renewable, and nonpolluting
energy resource;
(2)
Decreasing the cost of energy to the owners of commercial and
residential properties, including single-family houses; and
(3)
Increasing employment and business development in the region
by furthering the installation of solar energy systems.
C.
However, the Town Board finds a need to properly site solar energy
systems within the boundaries of the Town of Concord to protect residential,
business areas, agriculture and other land uses, to preserve the overall
beauty, nature and character of the Town of Concord, 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 Concord.
As used in this article, the following terms shall have the
meanings indicated:
The person or entity filing an application and seeking an
approval under this article; the owner of a solar energy system or
a proposed solar energy system project; the operator of solar energy
system or a proposed solar energy system project; or any person legally
authorized to act on behalf of an applicant, solar energy system or
proposed solar energy system. Whenever the term "applicant," "owner,"
or "operator" is used in this chapter, said term shall include any
person legally authorized to act on behalf of an applicant, owner
or operator.
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.
A solar energy system that is affixed to the side(s) of a
building either directly or by means of support structures or other
mounting devices, but not including those mounted to the roof or top
surface of a building. Said system is designed and intended to generate
energy primarily for on-site consumption.
This is the adopted Concord Unified Solar Permit (USP), form,
instructions, and online guidance which is promulgated by NYSERDA
and/or other New York State agencies and provides for the expedited
permitting process for certain classes of private Tier 1 solar energy
systems which are 25kW or less in capacity. The Concord USP allows
for private roof-mounted, building-mounted and building-integrated
systems.
Any residence/house/apartment that may be occupied or vacant.
Land, designated as "Farmland of Statewide Importance" in
the U.S. Department of Agriculture Natural Resources Conservation
Service (NRCS)'s 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.
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.
Use of a net energy meter to measure the net amount of electricity
supplied to the premises equipped with a solar energy system less
the electricity provided by the solar energy system to the electric
corporation (NYSEG for the case of Concord). Net metering shall be
in accordance with the New York Public Service Law § 66-j.
Net energy metering for a private solar energy system is allowed and
permitted as long as the excess energy produced falls within 110%
of historical demand for the lot on which the private solar energy
system is installed.
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 U.S. Department of Agriculture Natural Resources Conservation
Service (NRCS)'s Soil Survey Geographic (SSURGO) Database on
Web Soil 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 person or organization who has the skills and knowledge
related to the construction and operation of solar energy systems
and installation and who has received safety training on the hazards
involved. Persons who are on the list of eligible photovoltaic installers
maintained by the New York State Energy Research and Development Authority
(NYSERDA) shall be deemed to be qualified solar installers for the
purposes of this definition. Persons who are not on the NYSERDA list
of eligible installers may be deemed to be qualified solar installers
if the Concord Code Enforcement Officer or the Concord Town Board
determines such persons have training to perform the installation
appropriately and safely. Such training shall include the proper use
of precautionary techniques and personal protective equipment as well
as the skills and techniques necessary to distinguish exposed energized
parts or other parts of electrical equipment on the site and to determine
the nominal voltage of exposed live parts.
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, fencing 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 Concord 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.
Tier 3 solar energy systems are systems that do not meet the
definition of a Tier 1 or Tier 2 solar energy system and do not meet
the requirements of a Tier 4 solar energy system (50 acres or less
- defined as the fenced in area that encloses the panels and other
related solar energy equipment).
Tier 4 solar energy systems meet the definition of a Tier 3
solar energy system but are over 50 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.
The abbreviation for the Concord Unified Solar Permit process,
form, instructions, and implementation of the unified solar permit
process in the Town. Forms and details are available from the Concord
Town Clerk and online at the Town's website.
Any areas designated as such by the New York State Department
of Environmental Conservation or 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.
A.
A building permit shall be required for installation of all solar
energy systems.
B.
Issuance of approvals by the Town 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 Concord.
D.
All permitted solar energy systems are required to be installed by
a qualified solar installer.
E.
This article shall not apply to any lot owned by a municipality.
All Tier 1 solar energy systems shall be permitted in all zoning
districts through a building permit or Concord Unified Solar Permit
(USP) 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, building-integrated and building-mounted solar energy
systems.
(1)
Roof-mounted solar energy systems shall incorporate, when feasible,
the following design requirements:
(a)
Solar panels on pitched roofs shall be mounted with a maximum
distance of eight inches between the roof surface 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, unless a variance is received.
(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 anti-reflective 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.
C.
Building-mounted solar energy systems. Building-mounted solar energy systems (non-rooftop) shall not be more than 18 inches from the building wall and in no instance shall any part of the system extend beyond the eave line or top of a parapet wall. All proposed installations must be accompanied by a set of drawings sealed by a New York State licensed professional engineer or registered architect, verifying the structural integrity of the building and with the New York State Code Compliance checklist. They must also meet the requirements listed in Subsection A(2) and (3) for roof-mounted systems. The approval of any building-mounted systems shall be by the building permit method as they are not eligible for consideration under Concord's Unified Solar Permit method regardless of capacity of the system.
All Tier 2 solar energy systems shall be permitted in all zoning
districts as an accessory use and require site plan review in accordance
with the Town of Concord Zoning Code and other Town land use regulations.
The site plan application shall include a site plan and address the
following requirements:
A.
Glare. All solar panels shall have anti-reflective coating(s) and
proof of such must be provided with the building permit application.
B.
Setbacks. Tier 2 solar energy systems shall be set back a minimum
of 50 feet from any side or rear property line. All ground-mounted
solar energy systems shall only be installed in the side or rear yards.
In all cases, the solar panels shall be located a minimum of 75 feet
from any dwelling unit on an adjoining nonparticipating property.
For Tier 2 systems, the setback requirement is from any panel or other
related solar energy system equipment.
C.
Installations in residential districts. The total surface area of
said solar energy system on a lot shall not exceed 800 square feet
per acre in R1, R2, R-RB, RE, RM, R12, and R-AG.
D.
Height. Tier 2 solar energy systems shall be less than 12 feet in
height in any residential district. Height shall be less than 15 feet
for all remaining districts. Height shall be measured at maximum tilt.
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.
F.
Additional site plan requirements. Submit a site plan in accordance
with the Town of Concord's site plan requirements and also drawn
in sufficient detail as set forth below:
(1)
Plans and drawings of the solar energy system installation signed
by a New York State certified professional engineer or registered
architect showing the proposal 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 clearly showing the direction of
surface water flow from the site.
(2)
The site plan will illustrate all property lot lines and the
location and dimensions of all existing structures and uses within
500 feet of the solar panels.
(3)
Any proposed fencing and/or screening for said project.
(4)
Any such additional information as may be required by the Town's
professional engineer or consultant, the Town Planning Board, the
Town Board, the Town Attorney, the Code Enforcement Officer, or other
Town entity.
(5)
A public hearing on said site plan may be waived by the Town
Board at the Town Board's discretion.
All Tier 3 solar energy systems are permitted through the issuance of a special use permit (in accordance with Article XXXIV of the Town Zoning Code and this Article) within Residential - Agricultural (R-AG) Zone, General Commercial Zone (C-2), and Industrial Zone (M), 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 Concord requires the applicant to enter into a solar energy system PILOT and host community agreement with the Town of Concord. In reviewing and considering Tier 3 solar proposals, the Town will give deference to those sites that are New York State brownfield sites and sites that are nonagricultural in nature. The Town values it agricultural land and the farming that takes place on that land.
A.
Applications (process) for the installation of Tier 3 solar energy
system shall be: Tier 3 applications for solar energy systems will
be required to proceed via the Concord special use permit procedures
and process in order for the solar energy conversion system to be
considered for site plan approval and building permit approval. Applications
under this article shall be made as described in this section. Applicants
for a special use permit to place, construct, and make a major modification
to a Tier 3 solar energy system, or other solar energy conversion
system which is required to proceed via the special use permit method,
within the boundaries of the Town of Concord shall submit 12 sets
of the materials identified in this article and follow the following
process:
(1)
Received by the Code Enforcement Officer (CEO) and checked to
make sure the appropriate documents have been submitted. No such application
shall be deemed filed until any required application fee has been
paid by the applicant. The CEO will then forward to the Town Board,
by having it placed on the next available agenda, for it to determine
completeness of the application and refer to the Planning Board and/or
a professional engineer or consultant for an initial review. 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 and recommendations, the project/application
shall be referred back to the Town Board to begin completion of the
host community agreement. This agreement will need to be finalized
before the special use permit is issued.
(3)
The Planning Board shall complete their reviews and issue an
advisory recommendation for consideration by the Town Board. The Planning
Board may make such additional referrals to experts, consultants,
or applicable engineering professionals as it deems appropriate (these
costs shall be paid by the applicant through an escrow fund to be
set up with the Town).
(4)
The Town Board shall review the advisory report and set a public
hearing in accordance with the special use permit law to hear all
comments for and against the application. The Town Clerk shall complete
all public notice requirements in accordance with the special use
requirements of the Town.
(5)
If required, the application shall also be referred to the Erie
County Department of Environment and Planning (ECDEP) pursuant to
General Municipal Law § 239-m.
(6)
The special use permit shall be acted upon by the Town Board,
once the required steps are completed and the Town Board has completed
the SEQR process.
(7)
The Town Board may grant a special use permit, deny a special
use permit, or grant a special use permit with written stated conditions.
Denial of a special use permit shall be by written decision based
upon substantial evidence and advisory recommendations considered
by the Town Board. Upon issuance of a special use permit, the applicant
shall obtain a building permit for the Tier 3 or Tier 4 solar energy
system.
(8)
The Town Board then can proceed with acting on the site plan.
B.
Design and application requirements. Applications for Tier 3 solar
projects shall address and include the following:
(1)
Vehicular paths. Vehicular paths within the site shall be designed
to minimize the extent of impervious materials and soil compaction.
(2)
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.
(3)
Glare. All solar panels shall have anti-reflective coating(s)
and proof of such submitted at application and at the building permit
stage.
(4)
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.
(5)
Noise. Information on any noise-producing equipment (as determined
by the Town based on application materials) shall be submitted. If
necessary, the Planning Board will require analysis of the noise on
any sensitive receptors, including single-family homes.
(6)
Tree cutting. Removal of existing trees larger than six inches
in diameter should be minimized to the extent possible (or, if allowed
by the Town, replace as necessary on the site).
(7)
Decommissioning.
(a)
Solar energy systems that have been abandoned and/or not producing
electricity (defined as operated at a minimum of 50% capacity for
a period of at least six months) 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.
(b)
A decommissioning plan (see Appendix 1[1]) signed by the owner and/or operator of the solar energy
system shall be submitted by the applicant, addressing the following:
[1]
The methodology and the cost of removing the solar energy system.
The Town strongly encourages the recycling of all materials (and should
be reflected in the decommissioning plan), but there will be no allowance
for recycle value in the cost estimate (as they are too speculative).
[2]
The time required to decommission and remove the solar system
and any ancillary structures.
[3]
Restoration of the property to the original condition of the
site, in accordance with New York State Department of Agriculture
and Markets (NYSDAM) standards or as determined through Town input.
[4]
The time required to repair any damage caused to the property
by the installation and removal of the solar energy system.
[1]
Editor's Note: Said appendix is on file in the Town offices.
(c)
Security.
[1]
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. The security
amount shall be reviewed on a regular basis (as set by the Town) and
the amount of the security may change based on any new figures.
[2]
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.
[3]
In the event of default or abandonment of the solar energy system,
the system shall be decommissioned as set forth in this article.
(8)
Application fees. All applications for Tier 3 (and Tier 4) solar
energy systems shall include the appropriate fees as set by the Concord
Town Board. The applicant shall also be responsible for any costs
incurred by the Town for consulting and legal services.
(9)
Maintenance plan. Applications shall include a maintenance plan
for all leased lands (including required setbacks/buffers). The maintenance
plan shall also include the minimum guarantee period on the plantings
(10 years). The maintenance plan shall address the maintenance of
the equipment, the access roads (condition and plowing), plantings,
buffer areas and the area under the panels. With regards to maintenance,
the Town will not allow the use of herbicides, pesticides and other
chemicals. The maintenance plan should include environmentally friendly
maintenance procedures including the use of animal grazing and the
use of pollinator species and low-maintenance vegetation.
(10)
Safety. Applications shall include a safety plan (including
communication with emergency service providers).
(11)
Environmental and cultural resources; information on the environmental
and cultural resources (as identified through the NYSDEC mapping system
and by the Town of Concord. This includes resources such as wetlands,
viewsheds, scenic byways, forestry lands, habitats, etc.) on the subject
property and surrounding properties.
(12)
A property owner who has installed, or intends to install, a
Tier 3 solar energy system or private solar energy system may choose
to negotiate with other property owners in the vicinity for any necessary
solar skyspace easements. The issuance of a special use permit by
the Town does not constitute solar skyspace rights, and the Town shall
not be responsible for ensuring impermissible obstruction to the solar
skyspace as a result of uses or development performed in accordance
with Town Code.
C.
Site plan application requirements. 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 in accordance with
the Town of Concord's site plan requirements and this article,
and include the following additional information:
(1)
A plan illustrating 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 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.
(4)
Plans must also illustrate all off-site infrastructure, including
transmission lines, points of grid interconnection, poles and electric
lines servicing the project. These "off-site" improvements will be
considered part of the project and considered in the project review.
(5)
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.
(6)
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.
(7)
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.
(8)
Zoning district designation for the parcel(s) of land comprising
the project site and adjoining lands.
(9)
Property operation and maintenance plan. Such plan shall describe
continuing photovoltaic and other equipment maintenance and property
upkeep, such as mowing and trimming (or other methodologies).
(10)
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 or Town Engineer.
(11)
Engineering documents must be signed and sealed by a New York
State (NYS) licensed professional engineer or NYS registered architect.
(12)
A completed SEQR full environmental assessment form.
(13)
A landscape plan in accordance with the special use permit requirements
of this article.
(14)
Proposed fencing and screening of the project.
(15)
Any such additional information as may be required by the Town
Planning Board, a Town professional engineer or consultant, the Concord
Town Board, the Town Attorney, the Town Code Enforcement Officer,
or other Town entity.
In addition to the general requirements for the issuance of
a special use permit in the Town of Concord, the following additional
standards and requirements will be utilized to make a decision on
the approval of the special use permit for these projects.
A.
Specific standards.
(1)
The total surface area of a Tier 3 solar energy system situated
in a Residential-Agricultural (R-AG) Use District, on a lot which
is greater than 15 acres, is determined by the size of the parcel,
as indicated below:
(2)
The total surface area of a Tier 3 solar energy system, on a
lot which is greater than 15 acres, situated in a Commercial (C) Use
or Industrial Use District, shall not exceed 20% of the total square
footage of the entire lot.
(3)
Setbacks. All Tier 3 solar energy systems shall be set back
a minimum of 100 feet (all setbacks are measured from the fence surrounding
the solar panels and all equipment) to all nonparticipating property
lines and to the edge of any road ROW. Additionally, the setback from
the fence line shall be a minimum of 300 feet from the side or rear
of a dwelling unit on an adjoining nonparticipating property. The
setback to any off-site participating dwelling unit shall be 100 feet
from the side or rear of the dwelling unit. For participating properties
with proposed solar panels, the setback from a property line is not
required. Additional setback requirements are as follows:
(a)
If parcel/lot is in a Residential-Agricultural (R-AG) Zoning,
but is shown on the current Town of Concord Zoning Map as a parcel/lot
which has the first 300 feet of depth from the road frontage zoned
as R1, R2, RE, RM, R12, R-AG or R-RB, then no portion or component
of the Tier 3 solar energy system may be located within that frontage
zoning (R1, R2, R-RB, RE, RM, R12, and R-AG) except for any existing
overhead or proposed buried electrical wire infrastructure associated
with the solar energy system as proposed by the applicant.
(b)
From railroads: a minimum of 100 feet from any railroad (measured
from the railroad right-of-way).
(c)
From an inactive railroad's rail bed right-of-way corridor
that is part of the rail-banking system: a minimum of 100 feet from
any railroad roadbed in the rail-banking system (as measured from
the rail bed's right-of-way).
(d)
From schools, public parks: a minimum of 750 feet from all property
lot lines bordering a school or public park.
(4)
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.
(5)
Fencing requirements. All mechanical equipment, including any
structure for storage batteries, shall be enclosed by a fence, and
meet any other regulatory requirements such as NEC, with a self-locking
gate to prevent unauthorized access. Warning signs with the owner's
contact information shall be placed on the entrance and perimeter
of the fencing.
(6)
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. 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 solar energy system. Existing vegetation
may be used to satisfy all or a portion of the required landscaped
screening. A list of suitable evergreen tree and shrub species should
be provided by the Town. This minimum screening requirement will be
reduced if adjoining properties are participating properties.
[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, buildings can be made to look like agricultural structures
such as barns.
(c)
If a Tier 3 or 4 solar energy system is situated on a parcel/lot
which is at the edge of a zoning boundary [for example, the last parcel
in an R-AG Zoning District which abuts to a residential parcel (R1,
R2, RE, R-RB, RM, R12)], then additional screening via retaining existing
trees, suitable vegetation, plantings, or the topography, shall be
included in the site plan so as to screen the boundary parcel from
the visual impact of the solar energy system.
B.
Other standards.
(1)
All Tier 3 or 4 solar energy systems, if located within 1,000
feet of a public or private airfield/airport must, at the time of
special use permit submission, include results of the federal Solar
Glare Hazard Analysis Tool (SGHAT) for the Airport Traffic Control
Tower (if any) and for the final approach aircraft flight paths, consistent
with the current policy of the FAA for review of solar energy projects,
and any similar regulatory mandates which include private airfields
near the solar energy system's area.
(2)
A Tier 3 or 4 solar energy system shall adhere to all applicable
federal, state, county and Town of Concord laws and regulations, and
all building, plumbing, electrical, and fire codes. The applicant
is also required to obtain all necessary formal regulatory approvals
and/or permits from any federal, state, county, or local agency having
jurisdiction and approval requirements related to the completion of
a Tier 3 or 4 solar energy system.
(3)
Artificial lighting of Tier 3 or 4 solar energy systems shall
be limited to lighting required for safety and operational purposes
and shall be shielded (down cast and dark sky compliant) from all
neighboring properties and public roads.
(4)
Any signage used to advertise the solar energy facility shall
be in accordance with the Town's signage regulations.
(5)
After completion of construction of a Tier 3 or 4 solar energy
system, the applicant shall provide a postconstruction certification
from a professional engineer (PE), registered in New York State, that
the project complies with applicable codes and industry practices,
and that it has been constructed and is operating according to the
design plans.
(6)
Clearing, grading, stormwater and erosion control:
(a)
It has been determined that much of the soil type classification
within the Town of Concord consists of highly and moderately erodible
soils types; erosion control and prevention are a critical component
of any solar energy system project. Therefore, the Town will require
formal documentation that any proposed solar energy project will not
cause a negative impact on the Town's soil resources. This is
especially true for Tier 3 or 4 solar energy systems; therefore, Concord
requires a determination that erosion will be addressed in any development
for solar energy systems.
(b)
Before the Town of Concord shall issue a clearing, grading,
stormwater, or building permit for a Tier 3 or 4 solar energy system,
the applicant shall prepare an acceptable New York State Pollutant
Discharge Elimination System (SPDES), filed and issued in accordance
with Environmental Conservation Law, which fully defines the measures
to be taken during and after the construction phase(s) of the solar
energy system as required by law. When the permit coverage is received
by the applicant, a copy should be filed within five days with the
Concord Code Enforcement Officer for review.
(c)
Before the Town of Concord shall issue a clearing, grading,
stormwater or building permit for a Tier 3 or 4 solar energy system,
the applicant shall submit a complete New York State stormwater pollution
prevention plan (SWPPP) to the Town for review and approval by the
Planning Board and/or their designated consultant or professional
engineer, the Concord Environmental Board, and the Concord Code Enforcement
Officer whom will all supply advisory recommendations to the Town
Board when they determine approval status.
(d)
The applicant's SWPPP shall minimize the potential adverse
impacts on wetlands and Class I and II streams and the banks and vegetation
along those streams and wetlands and minimize erosion or sedimentation.
(e)
To assist in processing, if not mandated elsewhere, the SWPPP
should include a copy of the filed New York State Environmental Quality
Review Act (SEQRA) document(s), so that efficient review of both submittals
may be done by the Town's advisory boards as well as the Town
Board.
C.
Agricultural resources. Due to the importance of agricultural lands
and the economy of farming, projects proposed to be located on agricultural
lands shall have the following additional requirements:
(1)
Any Tier 3 solar energy system located in areas that consist
of prime farmland soils or farmland soils of statewide importance
shall not exceed 50% of the area of prime farmland or farmland of
statewide importance on the parcel upon which panels and other solar
energy equipment (the fenced in area) are to be installed. Any program
in which the applicant participates that provides for the use of the
land within the fenced in area as farm-related uses may be excluded
from this 50% coverage threshold calculation based on the amount of
space actually occupied by the farm use. This exclusion will only
be allowed based on a Planning Board's determination that these
lands are being used for actual agricultural uses.
(2)
Tier 3 solar energy systems located on prime farmland shall
be constructed in accordance with the construction requirements of
the New York State Department of Agriculture and Markets (See NYS
Agriculture and Markets Guidelines).
(3)
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.
Input from the local farmers and Town Agricultural Committee will
be needed to make these determinations.
(4)
Agricultural restoration requirements. Once the system is decommissioned,
the site shall be restored and remediated in accordance with the New
York State Department of Agriculture and Markets (NYSDAM) Guidelines
(this will be a condition of the special use permit).
D.
Noise. The project shall be shown to not have any adverse noise impacts
on any surrounding homes or other sensitive receptors (use of NYSDEC
regulations concerning noise).
E.
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 or other hazardous materials).
Any equipment containing liquids must show adequate spill containment
requirements. Proof of these requirements must be provided with the
application.
F.
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 Concord 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 Concord 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 Concord 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 Concord a copy of each of the policies
or certificates representing the insurance in the required amounts.
(6)
Certificate of insurance. A certificate of insurance states
that it is for informational purposes only and does not confer sufficient
rights upon the Town of Concord shall not be deemed to comply with
this article.
(7)
Indemnification. Any application for a solar energy system within
the Town of Concord 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 Concord 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 Concord
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 Concord.
A.
All Tier 4 solar energy systems are permitted through the issuance of a special use permit within the Residential-Agricultural (R-AG) Zone, and subject to site plan and special use permit requirements set forth in this article for Tier 3 projects (all requirements in §§ 150-215 and 150-216). They are also subject to all of the requirements for Tier 3 projects and as revised below. In order to ensure that the benefits of the community solar energy resource are available to the entire community, the Town of Concord shall require all Tier 4 applicants to enter into a solar energy system PILOT and host community agreement.
B.
These Tier 4 systems are very large systems that have a potential
to significantly impact the Town of Concord, its citizens 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 revisions to Tier 3 requirements:
(1)
Submittal of an agricultural impact statement (in addition to
any other requirements such as agricultural data statements and notice
of intents) to determine the impact to agriculture in the Town. The
Planning Board, on a project-by-project basis, will work with the
applicant on finalizing the requirements of this agricultural impact
statement. It will not only include the direct impacts on the subject
properties and surrounding agricultural properties, but also include
analysis of the loss of leased lands and the impact on other leased
lands.
(2)
Submittal of an economic impact analysis to determine the impact
to the economy of the Town. This includes the agricultural impacts
in the agricultural impact statement and information as noted by the
Town Planning Board (Town to provide scoping of this study).
(3)
Any Tier 4 solar energy system located on lands that consist
of prime farmland soils or farmland soils of statewide importance
shall not exceed 50% of the area of prime farmland or farmland of
statewide importance on the parcel or project site as a whole (if
multiple parcels are included) upon which panels and other solar energy
equipment (the fenced in area) are to be installed. Any program in
which the applicant participates that provides for the use of the
land within the fenced in area as farm-related uses may be excluded
from this 50% coverage threshold calculation based on the amount of
space actually occupied by the farm use. This exclusion will only
be allowed based on a Planning Board's determination that these
lands are being used for actual agricultural uses.
(4)
For Tier 4 systems, if the project proposes to impact more than
50% of these prime or statewide important soils, the applicant may
purchase or lease (for the lease period of the proposed project) development
rights, of an equal amount of land over the 50% threshold, of another
active farm within the Town of Concord with prime or statewide important
soils located on that land to offset the farmland used or leased in
the primary project area.
(5)
For Tier 4 systems, the setback and other bulk requirements
for Tier 3 projects must be met.
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. A new owner or operator of
the solar energy system shall notify the zoning enforcement officer
of such change in ownership or operator within 30 days of the 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 Tier 3 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, 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 180 days. If the owner and/or operator fails to perform substantial
construction after 24 months, the approvals shall expire.
B.
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. The decommissioning plan must be completed within
360 days of notification.
C.
If the owner and/or operator fails to comply with decommissioning
upon any abandonment, 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.
D.
Inspections. Upon reasonable notice, the Concord Code Enforcement
Officer, or his designee, may enter a lot on which a solar energy
system has been approved for the purpose of compliance verification
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 Tier 3 or Tier 4
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 Code
Enforcement Officer that damage may have occurred. A copy of the inspection
report shall be submitted to the Town Code Enforcement Officer. Any
fee or expense associated with this inspection shall be borne entirely
by the permit holder. The Town may also set up a yearly fee for the
special use permits for Tier 3 and 4 projects.
E.
General complaint process. During construction, the Town Code Enforcement
Officer can issue a stop-work order at any time for any violations
of a special use or building permit. After construction is complete,
the permit holder of a Tier 3 or Tier 4 solar energy system shall
establish a contact person, including name, e-mail address and phone
number, for receipt of any complaint concerning any permit requirements.
F.
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 Code Enforcement Officer
shall also have the right to request documentation from the owner
of a solar energy system regarding the system's usage at any
time.
G.
Changes after approval of the SUP. If after approval of the SUP or
after construction, changes are proposed to the approved plan; location
of the panels/equipment, equipment types, number of units, etc., the
applicant will need to reappear before the Planning Board for consideration
of amending the SUP.
Any violation of this Solar Energy Law shall 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.
