[Added 2-10-2022 by L.L. No. 2-2022]
This Battery Energy Storage System Law 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, § 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.
This Battery Energy Storage System Law is adopted to advance
and protect the public health, safety, welfare, and quality of life
of the Town of Concord 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.
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 standalone twelve-volt car battery or an electric motor
vehicle. A battery energy storage system is classified as a Tier 1,
Tier 2 or Tier 3 battery energy storage system as follows:
Tier 1 battery energy storage systems have an aggregate energy
capacity less than or equal to 600kWh and, if in a room or enclosed
area, consist of only a single energy storage system technology.
Tier 2 battery energy storage systems have an aggregate energy
capacity greater than 600kWh or are comprised of more than one storage
battery technology in a room or enclosed area.
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.
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 United States.
The New York State Uniform Fire Prevention and Building Code
adopted pursuant to Article 18 of the Executive Law, as currently
in effect and as hereafter amended from time to time.
A.
The requirements of this article shall apply to all battery energy
storage systems permitted, installed, or modified in Town of Concord
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 duration or power rating shall be subject to this
article.
A.
A building permit and an electrical permit shall be required for
installation of all battery energy storage systems.
B.
Issuance of permits and approvals by the Concord 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.
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.
Tier 2 battery energy storage systems are permitted through
the issuance of a special use permit within all nonresidential zoning
districts and shall be subject to the Uniform Code and the site plan
application requirements set forth in this section. Tier 2 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 the particular solar and wind project).
A.
Applications for the installation of Tier 2 battery energy storage
system shall be:
(1)
Reviewed by the Planning Board for completeness. An application
shall be complete when it addresses all matters listed in this 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.
Applicants shall be advised within 10 business days (of the first
Planning Board meeting on the application) of the completeness of
their application or any deficiencies that must be addressed prior
to substantive review.
(2)
Subject to a public hearing to hear all comments for and against
the application. The Planning Board of the Town shall have a notice
printed in a newspaper of general circulation in the Town in accordance
with the Town's special use permit requirements. Applicants shall
also have delivered the notice by first class mail to adjoining landowners
or landowners within 200 feet of the property at least 10 days prior
to such a hearing. Proof of mailing shall be provided to the Planning
Board at the public hearing.
(3)
Referred to the County Planning Board pursuant to General Municipal
Law § 239-m if required.
(4)
Upon closing of the public hearing, the Planning Board shall
take action on the application within 62 days of the public hearing
(or after the SEQR process is completed, if not completed on the day
of the public hearing), which can include approval, approval with
conditions, or denial. The sixty-two-day period may be extended upon
consent by both the Planning Board and applicant.
B.
Utility lines and electrical circuitry. All on-site utility lines
shall be placed underground to the extent feasible and as permitted
by the serving utility, with the exception of the main service connection
at the utility company right-of-way and any new interconnection equipment,
including without limitation any poles, with new easements and right-of-way.
C.
Signage.
(1)
The signage shall be in compliance with ANSI Z535 and shall
include the type of technology associated with the battery energy
storage systems, any special hazards associated, the type of suppression
system installed in the area of battery energy storage systems, and
twenty-four-hour emergency contact information, including reach-back
phone number.
(2)
As required by the NEC, disconnect and other emergency shutoff
information shall be clearly displayed on a light reflective surface.
A clearly visible warning sign concerning voltage shall be placed
at the base of all pad-mounted transformers and substations.
D.
Lighting. Lighting of the battery energy storage systems shall be
limited to that minimally required for safety and operational purposes
and shall be reasonably shielded and downcast from abutting properties.
E.
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. 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.
F.
Noise. The one-hour average noise generated from the battery energy
storage systems, components, and associated ancillary equipment shall
not exceed a noise level 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.
G.
Decommissioning.
(1)
Decommissioning plan. The applicant shall submit a decommissioning
plan, developed in accordance with the Uniform Code, to be implemented
upon abandonment and/or in conjunction with removal from the facility.
The decommissioning plan shall include:
(a)
A narrative description of the activities to be accomplished,
including who will perform that activity and at what point in time,
for complete physical removal of all battery energy storage system
components, structures, equipment, security barriers, and transmission
lines from the site;
(b)
Disposal of all solid and hazardous waste in accordance with
local, state, and federal waste disposal regulations;
(c)
The anticipated life of the battery energy storage system;
(d)
The estimated decommissioning costs and how said estimate was
determined;
(e)
The method of ensuring that funds will be available for decommissioning
and restoration;
(f)
The method by which the decommissioning cost will be kept current;
(g)
The manner in which the site will be restored, including a description
of how any changes to the surrounding areas and other systems adjacent
to the battery energy storage system, such as, but not limited to,
structural elements, building penetrations, means of egress, and required
fire detection suppression systems, will be protected during decommissioning
and confirmed as being acceptable after the system is removed; and
(h)
A listing of any contingencies for removing an intact operational
energy storage system from service, and for removing an energy storage
system from service that has been damaged by a fire or other event.
(2)
Decommissioning fund. The owner and/or operator of the energy
storage system shall continuously maintain a fund or bond payable
to the Town, in a form approved by the Town Attorney, for the removal
of the battery energy storage system, in an amount to be determined
by the Town, for the period of the life of the facility. 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.
H.
Site plan application. For a Tier 2 battery energy storage system
requiring a special use permit, site plan approval shall be required.
Any site plan application shall include the following information:
(1)
Property lines and physical features, including 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 Concord and by the Planning Board through the approval
process.
(12)
Prior to the issuance of the building permit or final approval
by the Planning Board, but not required as part of the application,
engineering documents must be signed and sealed by a New York State
licensed professional engineer.
(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, de-energizing, or isolation of
equipment and systems under emergency conditions to reduce the risk
of fire, electric shock, and personal injuries, and for safe startup
following cessation of emergency conditions.
(b)
Procedures for inspection and testing of associated alarms,
interlocks, and controls.
(c)
Procedures to be followed in response to notifications from
the battery energy storage management system, when provided, that
could signify potentially dangerous conditions, including shutting
down equipment, summoning service and repair personnel, and providing
agreed upon notification to fire department personnel for potentially
hazardous conditions in the event of a system failure.
(d)
Emergency procedures to be followed in case of fire, explosion,
release of liquids or vapors, damage to critical moving parts, or
other potentially dangerous conditions. Procedures can include sounding
the alarm, notifying the fire department, evacuating personnel, de-energizing
equipment, and controlling and 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.
I.
Special use permit standards.
(1)
Setbacks. Tier 2 battery energy storage systems shall comply
with the setback requirements of the underlying zoning district for
principal structures.
(2)
Height. Tier 2 battery energy storage systems shall comply with
the building height limitations for principal structures of the underlying
zoning district.
(3)
Fencing requirements. Tier 2 battery energy storage systems,
including all mechanical equipment, shall be enclosed by a seven-foot-high
fence with a self-locking gate to prevent unauthorized access unless
housed in a dedicated-use building and not interfering with ventilation
or exhaust ports.
(4)
Screening and visibility. Tier 2 battery energy storage systems
shall have views minimized from adjacent properties to the extent
reasonably practicable using architectural features, earth berms,
landscaping, or other screening methods that will harmonize with the
character of the property and surrounding area and not interfering
with ventilation or exhaust ports.
J.
Ownership changes. If the owner of the battery energy storage system
changes or the owner of the property changes, the special use permit
shall remain in effect, provided that the successor owner or operator
assumes in writing all of the obligations of the special use permit,
site plan approval, and decommissioning plan. A new owner or operator
of the battery energy storage system shall notify the Town of Concord
of such change in ownership or operator within 30 days of the ownership
change. A new owner or operator must provide such notification to
the Town in writing. The special use permit and all other local approvals
for the battery energy storage system would be void if a new owner
or operator fails to provide written notification to the Town in the
required time frame. Reinstatement of a void special use permit will
be subject to the same review and approval processes for new applications
under this article.
Tier 3 battery energy storage systems are permitted only in
the industrially zoned areas of the Town through the issuance of a
special use permit and shall be subject to the conditions established
for the special use permit, the Uniform Code and the site plan application
requirements set forth in the Tier 2 section[1] and other applicable sections of these regulations and
the Town Code.
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.
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 approvals,
the Town may extend the time to complete construction for 180 days.
If the owner and/or operator fails to perform substantial construction
after 36 months, the approvals shall expire.
B.
The battery energy storage system shall be considered abandoned when
it ceases to operate consistently for more than one year. If the owner
and/or operator fails to comply with decommissioning upon any abandonment,
the Town may, at its discretion, enter the property and utilize the
available bond and/or security for the removal of a Tier 2 battery
energy storage system and restoration of the site in accordance with
the decommissioning plan.
Any violation of this Battery Energy Storage System 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 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.
