For every building hereafter erected, altered
or changed in use, there shall be provided at least the minimum number
of off-street parking spaces set forth under this section. All off-street
parking for nonresidential and multifamily use shall be designed in
such a manner as to allow vehicles to exit onto a street without backing
out onto it.
A.
B.
Hotel/motel: three parking spaces, plus one space
for every guest room.
C.
Places of public assembly: one parking space for every
three seats.
D.
Offices and banks: four parking spaces for every 1,000
square feet of gross floor area.
E.
General retail: five parking spaces for every 1,000
square feet of gross floor area.
F.
Restaurant, eating and drinking establishment (other than drive-in, see Subsection H below): one parking space for every three seats.
G.
Industrial, wholesale, warehouse, storage, freight,
and trucking uses: one parking space for every motor vehicle used
directly in the business, plus additional employee and visitor parking
as required by the Planning Board.
H.
Drive-in, service and unspecified uses: as required
by the Planning Board, based upon use intensity, turnover, customers,
employees and vehicles used.
Every building occupied for the purpose of business
or industry shall provide adequate space for off-street loading and
unloading vehicles as determined by the Planning Board.
The Planning Board, under its powers of site
plan review and approval, may modify the requirements for parking
and loading spaces herein upon good cause being shown.
Gasoline stations, gasoline station-markets,
motor vehicle repair shops, motor vehicle sales and service, truck
stop, trucking terminal, heavy machinery and truck sales and service,
farm equipment sales and service, recreational vehicles sales and
service and drive-in business shall require a special use permit and
shall comply with the following:
A.
Such uses shall be effectively buffered from existing
residential uses in a manner that is acceptable to the Planning Board.
[Amended 2-20-2008 by L.L. No. 2-2008]
B.
Lot size shall be at least 40,000 square feet.
C.
Lot frontage shall be at least 200 feet.
D.
Lot depth shall be at least 150 feet.
E.
Pumps, other service devices, and aboveground fuel
and oil storage shall be located at least 30 feet from all lot lines.
F.
Any underground storage of fuel and oil of sufficient
volume not regulated by the New York State Department of Environmental
Conservation shall be located at least 30 feet from all lot lines.
G.
Motor vehicle and equipment parts and dismantled vehicles
and equipment shall be stored within a building or structure, or within
a fence of a height to be determined by the Planning Board, within
its sole discretion, so as to prevent public view of such items from
any direction. All work connected with the uses covered by this section
shall be performed to the extent possible indoors.
H.
There shall be no more than two access driveways from
any street. Maximum width of each access driveway shall be 30 feet.
Public utility installations (other than commercial communication towers, see § 235-52) shall require a special use permit and shall comply with the following:
A.
Such facility shall be surrounded by a fence approved
by the Planning Board.
B.
The facility shall be landscaped in a manner approved
by the Planning Board.
C.
To the extent practicable, equipment shall be stored
so as not to be visible from surrounding properties.
D.
Any other requirements as determined by the Planning
Board.
[Added 2-20-2008 by L.L. No. 3-2008]
A.
Purpose. The purpose of this section is to preserve
and protect public health and safety without significantly increasing
the cost or decreasing the efficiency of a wind energy system and
to allow for the orderly development of land, and to protect property
values and aesthetic conditions. This section does not repeal, annul,
impair, or interfere with any existing ordinance or local law.
B.
Authority. The Town Board of the Town of Batavia enacts
this section under the authority granted by:
(2)
New York Statute of Local Governments, § 10(1)
and (7).
(3)
New York Municipal Home Rule Law, § 10,
Subdivision 1(i) and (ii) and § 10, Subdivision 1a(6), (11),
(12), and (14).
(4)
New York Town Law § 130, Subdivision
1 (Building Code), Subdivision 3 (Electrical Code), Subdivision 5
(Fire Prevention), Subdivision 7 (Use of streets and highways), Subdivision
7-a (Location of Driveways), Subdivision 11 (Peace, good order and
safety), Subdivision 15 (Promotion of public welfare), Subdivision
15-a (Excavated lands), Subdivision 16 (Unsafe buildings), Subdivision
19 (Trespass), and Subdivision 25 (Building lines).
(5)
The supersession authority of New York Municipal
Home Rule Law § 10, Subdivision 1d(3), specifically as it
relates to determining which body shall have the power to grant variances
under this section to the extent such grant of power is different
than under Town Law § 267.
(6)
New York Town Law § 64, Subdivision
17-a (Protection of aesthetic interests), and Subdivision 23 (General
powers).
(7)
The State Environmental Quality Review Act ("SEQRA").
C.
Intent. The Town of Batavia intends to accommodate
the use of alternative and sustainable energy sources, including wind,
while protecting the quality of life of residential neighborhoods
and the viability of existing businesses, including agriculture. These
regulations are intended to permit noncommercial wind energy systems
subject to suitable restrictions regarding setbacks and height. Commercial
wind energy systems are not permitted at this time but may be permitted
in the future with the Town's passage of additional zoning amendments
to accommodate such systems.
D.
COMMERCIAL WIND ENERGY SYSTEM
ELECTROMAGNETIC INTERFERENCE (EMI)
NONCOMMERCIAL WIND ENERGY SYSTEM
ROTOR DIAMETER
SHADOW FLICKER
STRAY CURRENT
TOTAL HEIGHT
WIND ENERGY SYSTEM
WIND TOWER
Definitions. As used in this section, the following
terms shall have the meanings indicated:
A wind energy system that is operated primarily (51% or more)
to put energy into the electric grid, and/or has a nameplate capacity
of more than 50 kilowatts (kW), and/or a total height of more than
175 feet, and/or a blade length of more than 30 feet.
The interference to communication systems created by the
scattering of electromagnetic signals.
A wind energy system that is operated primarily (51% or more)
for on-site (may be for more than one parcel) consumption, and has
a nameplate capacity of 50 kW or less, and a total height of 175 feet
or less, and a blade length of 30 feet or less. These are also defined
as wind energy conversion systems (WECS) or small wind energy production
facilities.
The largest diameter formed by the blades when assembled
and mounted on the wind energy system.
The alternating pattern of sun and shade caused by wind tower
blades casting a shadow.
The inappropriate application of current to the ground or
earth. For the purpose of this section, it is the measurable addition
of current to ground resulting from improper installation or deterioration
of the electrical portion of a wind energy system. The National Electrical
Safety Code set the conditions that grounding connection points shall
be so arranged that under normal circumstances there will be no objectionable
flow of current over the grounding conductor. The National Electrical
Safety Code set the conditions that earth (ground) should not be part
of a supply circuit for both safety and service reasons. The most
current revision of the National Electrical Safety Code shall apply.
The vertical distance from ground level to the tip of a wind
turbine blade when the tip is at its highest point.
Equipment that converts and then stores or transfers energy
from the wind into usable forms of energy and includes any base, blade,
foundation, generator, nacelle, rotor, tower, transformer, turbine,
vane, wire, substation, maintenance or control facilities, or any
other components used in the system. A wind energy system can consist
of one or more wind towers. Wind energy systems do not include small
lawn decoration, pond aerators, or remaining portions of mechanical
water pumping windmills.
The monopole, freestanding, or guyed structure that supports
a wind turbine generator.
E.
Compliance. It is unlawful for any person to construct,
install, maintain, modify, or operate a wind energy system that is
not in compliance with this section or with any condition contained
in a special use or zoning permit issued pursuant to this chapter.
F.
Commercial wind energy systems shall not be allowed
in any area or zone within the Town of Batavia.
G.
Permit requirements.
(1)
Special use permit. A special use permit is
required for noncommercial wind energy systems and for any wind energy
system or a component thereof, except for noncommercial wind energy
systems located in county-adopted, state-certified agricultural districts
for primary on-farm use.
(2)
Zoning permit. A zoning permit and site plan
review are required for the installation of any wind tower that is
part of a wind energy system.
(3)
Ownership. In cases where the owner of the property
is not the applicant/owner of the wind energy conversion system, a
clear order of liability will be established. A signed and notarized
legal document from the owner of record of the property on which a
wind energy system will be located shall be required which acknowledges
liability for compliance to all requirements of this section if the
applicant/owner of the wind energy system is unable to comply.
(5)
Fees.
(a)
The application for a special use permit for
a noncommercial wind energy system, except for noncommercial wind
energy systems located in country adopted, state-certified agricultural
districts, must be accompanied by the fee required for a special use
permit.
(b)
The application for a zoning permit for each
tower in a noncommercial wind energy system must be accompanied by
the fee required for a zoning permit.
H.
Restoration requirement (see also "Restoration" section
under "Agricultural mitigation").[1]
(1)
A wind energy system that is out of service
for a continuous twelve-month period or any wind energy system found
to be unsafe by the Building Code Enforcement Officer and not repaired
by the owner to meet federal, state and local safety standards within
six months will be deemed to have been abandoned. The Zoning Enforcement
Officer may issue a notice of abandonment in the form of a letter
to the owner of a wind energy system that is deemed to have been abandoned.
The Zoning Enforcement Officer will withdraw the notice of abandonment
if the owner provides information within 30 days from the date of
the notice that causes the Zoning Enforcement Officer to determine
that the wind energy system has not been abandoned.
(2)
The owner of a wind energy system must provide
the Zoning Enforcement Officer with a written notice of termination
of operations if the operation of a wind energy system is terminated.
(3)
Within three months of receipt of a notice of
abandonment or within six months of providing a notice of termination
of operations, the owner of a wind energy system must:
(a)
Remove all wind turbines, aboveground improvements,
and outdoor storage;
(b)
Remove all foundations, pads, and underground
electrical wires to a depth of four feet below the surface of the
ground;
(c)
Remove all hazardous material as defined by
NYSDEC from the property and dispose of the hazardous material in
accordance with federal and state law; and
(d)
Ensure that all disturbed areas are decompacted
and the topsoil replaced to original depth reestablishing original
contours where possible.
[1]
Editor's Note: See § 235-38.IV(3).
I.
Special use permit or zoning permit requirements.
In addition to those criteria set forth under other sections of this
chapter, the Planning Board shall consider the following factors when
setting conditions upon special use permits or site plans issued for
all wind energy systems and may hire a professional engineer or consultant
to assist in the review of an application at the applicant's expense:
(1)
Proposed ingress and egress.
(2)
Proximity to transmission lines to link the
system to the electric power grid.
(3)
Number of wind towers and their location.
(4)
Nature of land use on adjacent and nearby properties.
(5)
Location of other wind energy systems in the
surrounding area.
(6)
Surrounding topography.
(7)
Proximity to residential structures, residential
zoning districts, or areas identified for future residential use.
(8)
Design characteristics that may reduce or eliminate
visual obtrusiveness.
(9)
Possible adverse effects on migratory birds,
and other animals and wildlife.
(10)
Possible adverse effects of stray voltage, interference
with broadcast signals, shadow flicker, and noise.
(11)
Impact on the orderly development, property
values, and aesthetic conditions.
(12)
Possible adverse effects on groundwater quality
or quantity.
(13)
Recommendations of the County Planning Board.
(14)
Any other factors that are relevant to the proposed
system.
J.
Standards.
(1)
Location.
(a)
A wind energy system may only be located in
areas that are zoned Agricultural-Residential (AG-R), Commercial (C),
Industrial (I), Industrial Park (IP) or Planned Business Development
(PBD).
(2)
Setbacks. Each wind tower in a wind energy system
must be set back twice the height of each wind tower or 10 rotor diameters,
whichever is longer (as measured from the center of the base of the
tower), from the following:
(a)
From any state forest, public park, or any other
area that has been set aside for the sole purpose of preserving a
unique wildlife habitat or natural formation recognized by a state,
federal or local government.
(b)
From important bird areas.
(c)
From the property line of the parcel on which
the wind tower is located.
(d)
Of any public access building that is on any
parcel.
(e)
From the right-of-way of any public road.
(f)
From any residence or building that is on any
parcel.
K.
Spacing and density. A wind tower must be separated
from any other wind tower by a minimum distance equal to twice the
height of the wind tower and by a sufficient distance so that the
wind tower does not interfere with the other wind tower.
L.
Structure. A wind tower must be of monopole construction
to the extent practicable. If monopole construction is not practicable,
a wind tower must be of freestanding construction to the extent practicable.
If monopole or freestanding construction is not practicable, a wind
tower may be guyed.
M.
Height. The total height of a wind energy system shall
not exceed 175 feet. Other maximum building/structure height restrictions
within other sections of this chapter are not applicable.
N.
Clearance. The vertical distance from ground level
to the tip of a wind turbine blade when the blade is at its lowest
point must be at least 30 feet.
O.
Access and safety.
(1)
Security. A wind tower, including any climbing
aids, must be secured against unauthorized access by means of a locked
barrier. A security fence shall be required at a minimum height of
eight feet.
(2)
Climbing aids. Monopole wind towers shall have
all climbing aids and any platforms locked and wholly inside the tower.
(3)
Operational safety. Wind towers shall have an
automatic braking, governing or feathering system to prevent uncontrolled
rotation, overspeeding and excessive pressure on the tower structure,
rotor blades and turbine components.
(4)
Lightning. All wind towers shall provide a continuous
electrical path to the ground to protect the tower from lightning.
(5)
Access roads. All wind energy systems shall
use existing roads to provide access to the facility site or, if new
roads are needed, minimize the amount of land used for new roads and
locate them so as to minimize adverse environmental impacts.
P.
Electrical wires.
(1)
Location. All electrical wires associated with
a wind energy system must be located underground and must be located
in a manner that does not interfere with reasonably expected farm
practices (see also "Construction" section under "Agricultural mitigation").[2]
[2]
Editor's Note: See § 235-38.1V(2).
(2)
Transmission lines. All wind energy systems
shall combine transmission lines and points of connection to local
distribution lines.
(3)
Substations. All wind energy systems shall connect
the facility to existing substations or, if new substations are needed,
minimize the number of new substations.
(4)
Stray current. Properly installed wind energy
systems will not generate this form of electrical pollution, often
referred to stray or ground current. A measurement before and after
installation to insure no gain in existing electrical pollution is
required for all wind energy systems over 10kw. Wind energy systems
of any size may be measured on an on/off basis to resolve any complaint
of electrical pollution. Mitigation must be immediate with the wind
energy system shut down until complete. Compliance with the National
Electric Safety Code for both installation and testing protocol is
required.
Q.
Lighting. A wind tower and turbine may not be artificially
lighted unless such lighting is required by the Federal Aviation Administration
(FAA), other governmental agency, recognized safety guidelines (i.e.,
Mercy Flight), or the Planning Board. If lighting is required, the
lighting must comply with FAA minimum requirements and, whenever possible,
be at the lowest intensity allowed. If more than one lighting alternative
is available, the Town Planning Board reserves the right to choose
the least obtrusive lighting option available.
R.
Buildings and outdoor storage. Any ancillary buildings
and any outside storage associated with a wind energy system must,
to the extent reasonably possible, use materials, colors, textures,
screening and landscaping that will blend the facility into the natural
setting and existing environment (i.e., in an agricultural setting
accessory buildings could be designed to look like barns). Appropriate
landscaping or architecture shall be provided to screen accessory
structures from roads and adjacent residences.
S.
Aesthetics.
(1)
Appearance, color, and finish. The exterior
surface of any visible components of a wind energy system must be
a nonreflective, neutral color.
(2)
Visual impact assessment. The applicant shall
complete a visual environmental assessment form (Visual EAF - SEQR),
as well as a visual impact assessment of any proposed wind energy
systems or any proposed modifications to existing wind energy systems.
The visual impact assessment shall include assessment of visual impact
from abutting properties and streets of the tower base, guy wires,
accessory buildings and any other element of the wind energy system
identified by the Town or County Planning Board or Town Board.
T.
Signs. No wind tower, turbine, building, or other
structure associated with a wind energy system may be used to advertise
or promote any product or service. A weather-resistant sign plate
no greater than two square feet in size containing the current owner
or operator, emergency phone number, and current address of such owner/operator
shall be located on the exterior surface of the tower or of the fence
surrounding each tower and viewable by a Zoning Enforcement Officer.
No other word or graphic representation, other than appropriate warning
signs, may be placed on a wind turbine, tower, building, or other
structure associated with a wind energy system so as to be visible
from any public road.
U.
Agricultural mitigation. The following shall apply
to construction areas for wind energy systems located in county-adopted,
state-certified agricultural districts. The applicant is required
to coordinate with the New York State Department of Agriculture and
Markets (Ag. and Markets) to develop an appropriate schedule for milestone
inspections to assure that the goals are being met. When required
by the Town, the applicant shall hire an environmental monitor to
oversee the construction and restoration in agricultural fields. The
person or company hired as an environmental monitor shall be approved
by the Town and paid by the applicant.
(1)
Siting.
(a)
Minimize impacts to normal farming operations
by locating structures along field edges where possible.
(b)
Locate access roads which cross agricultural
fields along ridge tops where possible to eliminate the need for cut
and fill and reduce the risk of creating drainage problems.
(c)
Avoid dividing larger fields into smaller fields,
which are more difficult to farm, by locating access roads along the
edge of agricultural fields where possible.
(d)
All existing drainage and erosion control structures
such as diversions, ditches, and tile lines shall be avoided or appropriate
measures taken to maintain the design and effectiveness of the existing
structures. Any structures disturbed during construction shall be
repaired to as close to original condition as possible, as soon as
possible, unless such structures are to be eliminated based on a new
design.
(2)
Construction.
(a)
The surface of access roads constructed through
agricultural fields shall be level with the adjacent field surface.
(b)
Where necessary, culverts and waterbars shall
be installed to maintain natural drainage patterns.
(c)
All topsoil must be stripped from agricultural
areas used for vehicle and equipment traffic and parking. All vehicle
and equipment traffic and parking shall be limited to the access road
and/or designated work areas such as tower sites and laydown areas.
No vehicles or equipment will be allowed outside the work area without
prior approval from the landowner and, when applicable, the environmental
monitor.
(d)
Topsoil from work areas (tower sites, parking
areas, "open-cut" electric cable trenches, along access roads) shall
be stockpiled separate from other excavated material (rock and/or
subsoil). At least 50 feet of temporary workspace is needed along
"open-cut" electric cable trenches for proper topsoil segregation.
Topsoil stockpile areas shall be clearly designated in the field and
on the on-site "working set" of construction drawings. Stockpiles
will be located far enough from access roads and work areas to eliminate
the possibility of vehicles inadvertently compacting this soil.
(e)
In cropland, hayland and improved pasture, a
minimum depth of 48 inches of cover will be required for all buried
electric wires. In unimproved grazing areas and land permanently devoted
to pasture, a minimum depth of 36 inches of cover will be required.
In areas where the depth of soil over bedrock ranges from zero to
48 inches, the electric wires shall be buried entirely below the top
of the bedrock or at the depth specified for the particular land use,
whichever is less. At no time will the depth of cover be less than
24 inches below the soil surface.
(f)
All excess subsoil and rock shall be removed
from the site. On-site disposal of such material may be allowed if
approved by the landowner and, when applicable, the environmental
monitor, with appropriate consideration given to any possible agricultural
or environmental impacts. (NOTE: Any permits necessary for disposal
under local, state and/or federal laws and regulations must be obtained
by the contractor, with the cooperation of the landowner when required.)
(g)
In pasture areas, work areas will be fenced
to prevent livestock access, consistent with landowner agreements.
(h)
All pieces of wire, bolts, and other unused
metal objects will be picked up and properly disposed of as soon as
practical after the unloading and packing of turbine components so
that these objects will not be mixed with any topsoil. (NOTE: Any
permits necessary for disposal under local, state and/or federal laws
and regulations must be obtained by the contractor, with the cooperation
of the landowner when required.)
(i)
Travel of all heavy equipment (including concrete
trucks and erection cranes) will be limited to designated access roads
and gravel crane pads at all times.
(j)
Excess concrete will not be buried or left on
the surface in active agricultural areas. Concrete trucks will be
washed outside of active agricultural areas. (NOTE: Any permits necessary
for disposal under local, state and/or federal laws and regulations
must be obtained by the contractor, with the cooperation of the landowner
when required.)
(3)
Restoration.
(a)
Restoration scheduling will be consistent with
the seasonal limitations identified by Ag. and Markets and will be
incorporated into the project's agricultural district notice of intent
(if applicable) as well as the stormwater management plan (general
permit).
(b)
Following construction, all disturbed agricultural
areas will be decompacted to a depth of 18 inches with a deep ripper
or heavy-duty chisel plow. In areas where the topsoil was stripped,
soil decompaction shall be conducted prior to topsoil replacement.
Following decompaction, all rocks four inches and larger in size will
be removed from the surface of the subsoil prior to replacement of
the topsoil. The topsoil will be replaced to original depth and the
original contours will be reestablished where possible. All rocks
four inches and larger shall be removed from the surface of the topsoil.
Subsoil decompaction and topsoil replacement should be avoided after
October 1, unless approved on a site-specific basis by the landowner
in consultation with Ag. and Markets. All parties involved should
be cognizant that areas restored after October 1 may not obtain sufficient
growth to prevent erosion over the winter months. If areas are to
be restored after October 1, some provision should be made to restore
any eroded areas in the springtime, to establish proper growth.
(c)
All access roads will be regraded to allow for
farm equipment crossing and to restore original surface drainage patterns,
or other drainage pattern incorporated into the design.
(d)
All restored agricultural areas shall be seeded
with the seed mix specified by the landowner, in order to maintain
consistency with the surrounding areas.
(e)
All surface or subsurface drainage structures
damaged during construction shall be repaired to as close to preconstruction
conditions as possible, unless said structures are to be removed as
part of the project design.
(f)
Following restoration, all construction debris
will be removed from the site.
(4)
Two-year monitoring and remediation.
(a)
The applicant will provide a monitoring and remediation period of no less than two years immediately following the completion of initial restoration. The two-year period allows for the effects of climatic cycles such as frost action, precipitation and growing seasons to occur, from which various monitoring determinations can be made. The monitoring and remediation phase will be used to identify any remaining agricultural impacts associated with construction that are in need of mitigation and to implement the follow-up restoration. The applicant will provide to the Town all testing, data and reports necessary to document compliance with Subsection U(4)(a) through (e) herein.
(b)
General conditions to be monitored include topsoil
thickness, relative content of rock and large stones, trench settling,
crop production, drainage and repair of severed fences, etc. Impacts
will be identified through on-site monitoring of all agricultural
areas impacted by construction and through contact with respective
farmland operators and Ag. and Markets.
(c)
Topsoil deficiency and trench settling shall
be mitigated with imported topsoil that is consistent with the quality
of topsoil on the affected site. Excessive amounts of rock and oversized
stone material will be determined by a visual inspection of disturbed
areas as compared to portions of the same field located outside the
construction area. All excess rocks and large stones will be removed
and disposed of by the applicant.
(d)
When the subsequent crop productivity within
affected areas is less than that of the adjacent unaffected agricultural
land, the applicant as well as other appropriate parties will help
to determine the appropriate rehabilitation measures to be implemented.
Because conditions which require remediation may not be noticeable
at, or shortly after, the completion of construction, the signing
of a release form prior to the end of the remediation period will
not obviate the applicant's responsibility to fully redress all project
impacts.
(e)
Subsoil compaction shall be tested using an
appropriate soil penetrometer or other soil compaction measuring device.
Compaction tests will be made for each soil type identified on the
affected agricultural fields. The subsoil compaction test results
within the affected area will be compared with those of the adjacent
unaffected portion of the farm representative subsoil density of the
unaffected areas; additional shattering of the soil profile will be
performed using the appropriate equipment. Deep shattering will be
applied during periods of relatively low soil moisture to ensure the
desired mitigation and to prevent additional subsoil compaction. Oversized
stone/rock material which is uplifted to the surface as a result of
the deep shattering will be removed.
V.
Noise. Audible noise due to the operation of any part
of a wind energy system shall not exceed 45 decibels (dBA) for any
period of time when measured at any residence, school, hospital, church,
public park, public library or place of public assembly. Audible noise
due to the operation of any part of a wind energy system shall not
exceed 30 decibels (dba) when measured inside any residence.
W.
Electromagnetic interference (EMI). No individual
tower facility shall be installed in any location where proximity
with existing broadcast, retransmission or reception antenna (including
residential antenna) for radio, television, wireless phone or other
personal communication systems would produce electromagnetic interference
with signal transmission or reception. Alternatively, wind energy
systems shall be properly filtered or shielded in order to avoid electromagnetic
interference and shall comply with rules and regulations of the Federal
Communication Commission contained in 47 CFR Parts 15 and 18.
X.
Insurance. Prior to issuance of a building permit,
the applicant shall provide the Town proof of a level of insurance,
to be determined by the Town Board in consultation with the Town's
insurer and attorney, to cover damage or injury that might result
from the failure of a tower or towers or any other part or parts of
the generation and transmission facility. If the insured is not the
owner of the property, the applicant must show the owner of the property
as coinsured and must allow for the property owner to continue coverage
if the applicant is unable to continue coverage.
Y.
Tax exemption. The Town hereby exercises its right
to opt out of tax exemption provisions of Real Property Tax Law § 487,
pursuant to the authority granted by Paragraph 8 of that law.
Z.
Inspections. The Town Code Enforcement Officer or
designated representative shall have the right at any reasonable time
to enter the premises on which a wind energy system has been placed
to inspect any and all parts of said installation. After conducting
said inspection, the Code Enforcement Officer may order the owner
of the wind energy system to render it inoperative for reasons related
to safety, noise, electrical pollution or electromagnetic interference.
If unable to contact the owner, the Code Enforcement Officer may execute
an emergency shutdown procedure which has been provided in advance
by the owner/applicant in the form of a clear and concise check sheet
as part of the permit process. All liability for the execution of
an emergency shutdown shall be with the owner of the wind energy system.
AA.
Penalties. Any person, firm, corporation or entity which may violate any provision of this section shall be guilty of a violation and, upon conviction thereof, shall be subject to the penalties set forth in § 235-65 of Town of Batavia Zoning Ordinance. Any person, firm, corporation or entity which may violate any provision of this section shall become liable to the Town for any actual expense or loss or damage occasioned by the Town by reason of such violation; in addition to any actual losses or damages sustained by the Town, such expense shall also include but not be limited to statutory costs, disbursements and reasonable attorney fees in the event legal action is commenced to enforce this section. The imposition of penalties herein prescribed shall not preclude the Town or any person from instituting appropriate legal action or proceedings to prevent a violation of this section or to restrain or enjoin the use or occupancy of premises or any part thereof in violation of this section.
BB.
Severability. The provisions of this section are severable,
and the invalidity of any section, subdivision, paragraph, or other
part of this chapter shall not affect the validity or effectiveness
of the remainder of the chapter.
[Amended 2-19-2003; 2-20-2008 by L.L. No. 2-2008]
A.
General standards. Except as provided in Subsection B, every sign (other than those identified in Subsection B below) shall require a zoning permit.
(1)
Also, every sign shall be designed, attached, supported,
and located in such a manner as to:
(2)
Signs may be illuminated by a steady light provided
that lighting does not illuminate adjacent property. Flashing, oscillating
and revolving signs are not permitted, unless necessary for public
safety or welfare.
B.
Signs permitted in all districts without a zoning
permit:
(1)
Identification signs.
(a)
One number and/or nameplate identifying residents,
mounted on house, apartment or mailbox, not exceeding one square foot
in area.
(b)
One lawn sign identifying residents, not exceeding
one square foot, or two square feet if double-faced. Such signs are
to be nonilluminated except by a light which is an integral part of
a lamppost if used as a support, with no advertising message thereon.
(c)
One sign identifying the name of the farm owner
or name of the farm not exceeding 24 square feet in area and located
not less than five feet from a lot line.
(2)
One "For Sale" or "For Rent" sign not exceeding an
area of six square feet. Such sign shall not be greater than six feet
in height and shall be located not less than five feet from a lot
line. Such signs shall be removed upon completion of the sale or rental.
(3)
Directional signs. No more than two directional signs
shall be permitted per street entrance to any lot. There shall be
no limit to the number of directional signs providing directional
information interior to a lot. The maximum total area for directional
signs shall be eight square feet.
(4)
Temporary signs. A sign used on a temporary basis to identify or announce an activity or function such as a construction project and the specialists concerned, elections, sporting events, carnivals, garage sales, meetings, etc. Such signs shall not exceed 12 square feet and shall not be located less than five feet from a lot line. Temporary signs shall be removed within 10 days after the activity or function ends. Garage sales and farm produce sales temporary signs used more than 60 days per year shall require a permit as set forth in Subsection D(3).
(5)
Window signs. Window signs shall be permitted in all
nonresidential zoning districts, subject to the following limitations:
(a)
The aggregate area of all such signs shall not
exceed 25% of the window area on which such signs are displayed. Window
panels separated by mullions shall be considered as one continuous
window area.
(b)
Window signs shall not be assessed against the
sign area permitted for other sign types.
(c)
Any window sign hung or mounted within 12 inches
of the interior of the window will be assessed against the allowable
twenty-five-percent total window coverage area.
(6)
Noncommercial speech signs; Residential Districts
(AG-R, R, HR). Noncommercial speech signs may be permitted in any
residential district without a sign permit, subject to the following
conditions:
(a)
The maximum number of noncommercial speech signs
per lot shall be two.
(b)
Of the total number of signs, only one shall
be a window sign. No window sign shall exceed 25% of the total window
opening, or two square feet, whichever is smaller.
(c)
A building-mounted sign may not exceed two square
feet in total area. Any building mounted sign shall be located in
proximity to an exterior entrance.
(d)
A freestanding sign, unless otherwise specified
herein, shall:
[1]
Not exceed six square feet in sign area;
[2]
Not exceed four feet in height above grade;
[3]
Maintain a minimum ground clearance of two feet;
[4]
Not be closer to any lot line than five feet;
[5]
Not interfere with vehicle site distances either
from, along or to a public way; and
[6]
Not be illuminated, except indirectly.
(7)
Noncommercial speech signs; Business and Industrial Districts (C, I, IP, PBD, HC). Noncommercial speech signs associated with a residential use in a business or industrial district shall comply with the standards specified in Subsection B(6) above. Noncommercial speech signs associated with nonresidential uses may be allowed in any business or industrial district without a sign permit, subject to the following conditions:
(a)
The maximum number of noncommercial speech signs
per lot shall be two.
(b)
Such signs shall not exceed 32 square feet in
area.
(c)
Freestanding noncommercial speech signs shall
not be closer to any lot line than five feet.
(d)
Freestanding noncommercial speech signs shall
not exceed six feet in height above grade level.
(e)
Building-mounted noncommercial speech signs
shall be located on the first floor front facade of the structure.
(f)
Noncommercial speech signs shall not be illuminated,
except indirectly.
C.
Permit requirements.
(1)
Permits required. Unless specifically exempted, a
permit must be obtained from the Zoning Officer for the erection and
maintenance of all signs erected or maintained within this jurisdiction
and in accordance with other ordinance or local laws of this jurisdiction.
Exemptions from the necessity of securing a permit, however, shall
not be construed to relieve the owner of the sign involved from responsibility
for its erection and maintenance in a safe manner and in a manner
in accordance with all the other provisions of this section.
(2)
Construction documents. Before any permit is granted
for the erection of a sign or sign structure requiring such permit,
construction documents shall be filed with the Zoning Officer showing
the dimensions, materials and required details of construction, including
loads, stresses, anchorage and any other pertinent data. The permit
application shall be accompanied by the written consent of the owner
or lessee of the premises upon which the sign is to be erected and
by engineering calculations signed and sealed by a registered design
professional where required by the New York State Building Code.
(3)
Changes to signs. No sign shall be structurally altered,
enlarged or relocated except in conformity to the provisions herein,
nor until a proper permit, if required, has been secured. The changing
or maintenance of moveable parts or components of an approved sign
that is designed for such changes shall not be deemed a structural
alteration.
(4)
Permit fees. Permit fees to erect, alter or relocate
a sign shall be in accordance with the fee schedule adopted within
this jurisdiction.
D.
Other signs permitted in Agricultural, Agricultural-Residential,
Residential or Hamlet Residential Districts. The following signs are
permitted in AG-R, R or HR Districts upon issuance of a zoning permit:
(1)
One home occupation or skilled trade shop sign not
exceeding four square feet in area and located not less than five
feet from a lot line.
(2)
One sign identifying a mobile home park in an Agricultural-Residential
District, not exceeding 20 square feet in area and located not less
than five feet from a lot line.
(3)
One sign identifying farm produce sales or garage
sales not exceeding 12 square feet in area and located not less than
five feet from a lot line when used 60 or more days per year.
(4)
One sign identifying a school, church, public park
or public building, not exceeding 40 square feet in area on any one
side and located not less than five feet from a lot line.
(5)
One business sign for uses which have a valid special
use permit to operate. Such sign may either be wall-mounted with a
maximum size of 20 square feet or freestanding with a maximum size
of eight square feet per side. Freestanding signs shall be limited
in height to 25 feet and not be located within 10 feet of a property
line. The final location/placement of all signs for uses allowed by
special use permits in the AG-R and R Districts shall be determined
by the Planning Board.
E.
Other signs permitted in Commercial, Industrial, or
Industrial Park Districts. The following business signs are permitted
in C, I, or IP Districts upon issuance of a zoning permit. Site plan
review is required for all totally new signs. Replacement signs (same
type, size and location) require a zoning permit but are not subject
to site plan review.
(1)
Two business signs, one of which may be freestanding
(except for shopping centers), shall be allowed for each permitted
use. If attached, such signs shall not exceed a total area of 200
square feet or an area equal to 10% of the wall area of the building
or portion thereof devoted to such use or activity, whichever is less.
No sign shall project more than one foot from the facade of the building.
(2)
Freestanding business signs shall be permitted. Such
signs shall conform to the following provisions relating to their
number and size:
(a)
Each commercial or industrial use, except as limited by Subsection E(2)(b), may have one freestanding business sign, except businesses located on through lots which may have two. Such freestanding sign shall have a sign area proportional to the size of the building as set forth below, shall be not more than 35 feet in height, and shall be located not less than five feet from a lot line.
|
Size of Building
(square feet)
|
Maximum Size of Freestanding Sign
(square feet, one side)
| |
|
Less than 5,000
|
50
| |
|
5,000 to 34,999
|
75
| |
|
35,000 to 100,000
|
100
| |
|
Greater than 100,000
|
150
|
(b)
Freestanding signs in a shopping center or industrial
park shall be limited to one directory sign at any location thereon
not exceeding five square feet in area for each acre of land in the
shopping center or industrial park, provided that no such sign shall
exceed 50 square feet in area.
(3)
Off-premises directional signs for businesses located
in the Town of Batavia not exceeding 32 square feet in size and limited
to two signs per use shall be permitted. Such signs shall be located
not less than five feet from a lot line.
(4)
Off-premises advertising signs are allowed by special use permit in compliance with Subsection G.
(5)
Portable signs. Any sign not permanently attached
to the ground or a building. In addition, any temporary sandwich-type,
sidewalk, or curb sign over 12 square feet in area and/or over four
feet in height is considered to be a portable sign. Such signs shall
be located not less than five feet from a lot line.
(6)
Awning signs. Awning signs shall be permitted in all
nonresidential zoning districts, subject to the following limitations:
(a)
The copy area of awning signs shall not exceed
an area equal to 25% of the background area of the awning or awning
surface to which such a sign is affixed or applied, or the permitted
area for wall or fascia signs, whichever is less.
(b)
Neither the background color of an awning, nor
any graphic treatment or embellishment thereto, such as striping,
patterns or valances, shall be included in the computation of sign
copy area.
(7)
Canopy signs. Canopy signs shall be permitted in all
nonresidential zoning districts, subject to the following limitations:
(a)
The permanently affixed copy area of canopy
signs shall not exceed an area equal to 25% of the face area of the
canopy or architectural projection upon which such sign is affixed
or applied and shall not exceed the total sign area allowed.
(b)
Graphic striping, patterns or color bands on
the face of a building, canopy or architectural projection shall not
be included in the computation of sign copy area. However, any numbers
or verbiage will be included in the computation of the sign copy area.
(8)
Under-canopy signs. Under-canopy signs shall be permitted
in all nonresidential zoning districts, subject to the following limitations:
(9)
Projecting signs. Projecting signs shall be permitted
in all nonresidential zoning districts, subject to the following limitations:
(a)
Projecting signs shall be permitted in lieu
of freestanding signage on any street frontage limited to one sign
per occupancy along any street frontage with a public entrance to
such an occupancy, and shall be limited in height and area to 1.5
square feet per each one lineal foot of building frontage, except
that no such sign shall exceed an area of 60 square feet.
(b)
No such sign shall extend vertically above the
highest point of the building facade upon which it is mounted.
(c)
Such signs shall not extend over a public sidewalk
in excess of two feet, measured from the face of the building or supporting
structure to the outside edge of the sign.
(d)
Such signs shall maintain a clear vertical distance
above any public sidewalk a minimum of 10 feet measured from grade
to the bottom of the sign.
(10)
A-frame (temporary).
F.
Signs for development complexes.
(1)
Master sign plan required. All landlord or single
owner controlled multiple-occupancy development complexes such as
shopping centers, multiple-family housing units or planned industrial
parks shall submit to the Planning Board a master sign plan prior
to issuance of individual sign permits. The master sign plan shall
establish standards and criteria for all signs in the complex that
require permits, and shall address, at a minimum, the following:
(2)
Development complex sign. In addition to the freestanding
business identification signs otherwise allowed by this section, every
multiple-occupancy development complex shall be entitled to one freestanding
sign per street front, at the maximum size permitted for business
identification freestanding signs, to identify the development complex.
No business identification shall be permitted on a development complex
sign. Any freestanding sign otherwise permitted under this section
may identify the name of the development complex.
(3)
Compliance with master sign plan. All applications
for sign permits for signage within a multiple-occupancy development
complex shall comply with the master sign plan. The Zoning Officer
shall ensure that individual signs are in conformance with the master
sign plan prior to issuing permits for the individual signs.
(4)
Amendments. Any amendments to a master sign plan must
be signed and approved by the owner(s) within the development complex
before such amendment will become effective.
G.
Off-premises advertising signs. Off-premises advertising
signs shall be located and maintained only in the C, I and IP Districts
upon issuance of a special use permit and in accordance with the standards
set forth in this chapter.
(1)
Only one off-premises advertising sign shall be permitted
per parcel of property and such parcel must meet the minimum required
lot dimensions (e.g., lot frontage, lot area, etc.) for the district
in which it is located.
(2)
Off-premises advertising signs shall not exceed 300
square feet of sign area nor exceed 35 feet in height.
(3)
Off-premises advertising signs of 25 square feet or
less in sign area may be placed not closer than 10 feet to a property
line. Off-premises advertising signs greater than 25 square feet in
sign area must meet all the minimum required yard setbacks for the
respective district.
H.
Nonconforming signs.
(1)
Nonconforming signs, whether on premises or off premises,
shall be removed at the expense of the property owner when the use
is discontinued. This shall include portable, temporary and permanent
signs.
(2)
Nonconforming signs may not be enlarged, extended,
relocated or altered in any way, except to make them conform to provisions
of this chapter. This provision shall not restrict routine maintenance
of nonconforming signs involving replacement of electrical parts and
repainting.
I.
Prohibited signs. The following types of signs are
prohibited and shall not be permitted, erected, or maintained in any
zoning district, and the owner thereof shall, upon written notice
of the Building Inspector, forthwith, in the case of immediate danger,
or otherwise within 10 days, make such sign conform to the provisions
of this chapter or remove it. If the order is not complied with, the
Building Inspector may cause said sign to be removed at the expense
of the owner.
(1)
Any sign which by reason of its size, location, content,
coloring or manner of illumination constitutes a traffic hazard or
a detriment to traffic safety by obstructing the vision of drivers,
or by obstruction or detraction from the visibility of any traffic
control device on public streets and roads.
(2)
Signs which obstruct free ingress to or egress from
a required door, window, fire escape or other required exit way.
(3)
Signs which make use of words such as "Stop," "Look,"
"Danger," and other words, phrases, symbols, or characters in such
a manner as to interfere with, mislead or confuse traffic.
(4)
Any sign which has any visible moving part, visible
revolving parts or visible mechanical movement of any description
(except time and temperature revolving signs as allowed) or other
apparent visible movement achieved by electrical or kinetic means,
including intermittent electrical pulsations, or by action of normal
wind current.
(5)
Signs or other exterior advertising structures displaying
any obscene, indecent, or immoral matter.
(6)
Any sign attached to, or placed on, a vehicle or trailer
parked on public or private property, except for signs meeting the
following conditions:
(a)
The primary purpose of such a vehicle or trailer
is not the display of signs.
(b)
The signs are magnetic, decals or painted upon
an integral part of the vehicle or equipment as originally designed
by the manufacturer and do not break the silhouette of the vehicle.
(c)
The vehicle or trailer is in operating condition,
currently registered and licensed to operate on public streets when
applicable, and actively used or available for use in the daily function
of the business to which such signs relate.
(d)
Vehicles and trailers are not used primarily
as static displays, advertising a product or service, nor utilized
as storage, shelter or distribution points for commercial products
or services for the general public.
(7)
Balloons, inflatable devices, streamers, sandwich
board signs or pinwheels, except those temporarily displayed as part
of a special sale, promotion or community event. For the purposes
of this subsection, "temporarily" means no more than 21 days in any
calendar year.
J.
ABANDONED SIGN
ANIMATED SIGN
(1)
(a)
(b)
(2)
(3)
ARCHITECTURAL PROJECTION
AWNING
AWNING SIGN
BACKLIT AWNING
BANNER
BANNER SIGN
BILLBOARD
BUILDING ELEVATION
CANOPY, ATTACHED
CANOPY, FREESTANDING
CANOPY SIGN
CHANGEABLE SIGN
(1)
(2)
COMBINATION SIGN
COPY
DEVELOPMENT COMPLEX SIGN
DIRECTIONAL SIGN
DOUBLE-FACED SIGN
ELECTRIC SIGN
ELECTRONIC MESSAGE SIGN OR CENTER
EXTERIOR SIGN
FACADE
FASCIA SIGN
FLASHING SIGN
FREESTANDING SIGN
FRONTAGE (BUILDING)
FRONTAGE (PROPERTY)
GROUND SIGN
IDENTIFICATION SIGN
ILLUMINATED SIGN
INTERIOR SIGN
MANSARD
MENU BOARDS
MULTIPLE-FACED SIGN
NONCOMMERCIAL SPEECH SIGN
OFF-PREMISES SIGN
ON-PREMISES SIGN
OUTDOOR ADVERTISING SIGN
PARAPET
POLE SIGN
POLITICAL SIGN
PORTABLE SIGN
PROJECTING SIGN
REAL ESTATE SIGN
REVOLVING SIGN
ROOFLINE
ROOF SIGN
SIGN
SIGN AREA
SIGN COPY
SIGN FACE
(1)
(2)
(3)
(4)
SIGN STRUCTURE
STRUCTURE
TEMPORARY SIGN
UNDER-CANOPY SIGN OR UNDER-MARQUEE SIGN
V SIGN
WALL OR FASCIA SIGN
WINDOW SIGN
ZONING OFFICER
Definitions (see also graphic representations).[1] For the purpose of this section, the terms used herein
are defined as follows:
A sign structure that has ceased to be used, and the owner
intends no longer to have used, for the display of sign copy, or as
otherwise defined by state law.
A sign employing actual motion or the illusion of motion.
Animated signs, which are differentiated from changeable signs as
defined and regulated by this Code, include the following types:
ELECTRICALLY ACTIVATEDAnimated signs producing the illusion of movement by means of electronic, electrical or electromechanical input and/or illumination capable of simulating movement through employment of the characteristics of one or both of the classifications noted below:
FLASHINGAnimated signs or animated portions of signs whose illumination is characterized by a repetitive cycle in which the period of illumination is either the same as or less than the period of nonillumination. For the purposes of this section, flashing will not be defined as occurring if the cyclical period between on-off phases of illumination exceeds four seconds.
PATTERNED ILLUSIONARY MOVEMENTAnimated signs or animated portions of signs whose illumination is characterized by simulated movement through alternate or sequential activation of various illuminated elements for the purpose of producing repetitive light patterns designed to appear in some form of constant motion.
ENVIRONMENTALLY ACTIVATEDAnimated signs or devices motivated by wind, thermal changes or other natural environmental input. Includes spinners, pinwheels, pennant strings, and/or other devices or displays that respond to naturally occurring external motivation.
MECHANICALLY ACTIVATEDAnimated signs characterized by repetitive motion and/or rotation activated by a mechanical system powered by electric motors or other mechanically induced means.
Any projection that is not intended for occupancy and that
extends beyond the face of an exterior wall of a building, but that
does not include signs as defined herein. See also "Awning"; "Backlit
awning"; "Canopy, attached"; and "Canopy, freestanding."
An architectural projection or shelter projecting from and
supported by the exterior wall of a building and composed of a nonrigid
material and/or fabric on a supporting retractable framework.
A sign displayed on or attached flat against the surface
or surfaces of an awning. See also "Wall" or "Fascia sign."
An awning with a translucent covering material and a source
of illumination contained within its framework.
A flexible substrate on which copy or graphics may be displayed.
A sign utilizing a banner as its display surface.
See "Off-premises sign" and "Outdoor advertising sign."
The entire side of a building, from ground level to the roofline,
as viewed perpendicular to the walls on that side of the building.
A multisided overhead structure or architectural projection
supported by attachments to a building on one or more sides and cantilevered
from such building. The surface(s) and/or soffit of an attached canopy
may be illuminated by means of internal or external sources of light.
A multisided overhead structure supported by columns, but
not enclosed by walls. The surface(s) and/or soffit of a freestanding
canopy may be illuminated by means of internal or external sources
of light.
A sign affixed to the visible surface(s) of an attached or
freestanding canopy. For reference, see figure.[2]
A sign with the capability of content change by means of
manual or remote input, including signs which are:
MANUALLY ACTIVATEDChangeable sign whose message copy or content can be changed manually.
ELECTRICALLY ACTIVATEDChangeable sign whose message copy or content can be changed by means of remote electrically energized on-off switching combinations of alphabetic or pictographic components arranged on a display surface. Illumination may be integral to the components, such as characterized by lamps or other light-emitting devices; or it may be from an external light source designed to reflect off the changeable component display. See also, "Electronic message sign or center."
A sign that is supported partly by pole and partly by a building
structure.
Those letters, numerals, figures, symbols, logos and graphic
elements comprising the content or message of a sign, excluding numerals
identifying a street address only.
A freestanding sign identifying a multiple-occupancy development, such as a shopping center or planned industrial park, which is controlled by a single owner or landlord, approved in accordance with § 235-39F(2) of this chapter.
Any sign that is designed and erected for the purpose of
providing direction and/or orientation for pedestrian or vehicular
traffic.
A sign with two faces, back to back.
Any sign activated or illuminated by means of electrical
energy.
An electrically activated changeable sign whose variable
message capability can be electronically programmed.
Any sign placed outside a building.
See "Building facade."
See "Wall sign."
See "Animated Sign, electrically activated."
A sign principally supported by a structure affixed to the
ground and not supported by a building, including signs supported
by one or more columns, poles or braces placed in or upon the ground.
For visual reference, see figure.[3]
The length of an exterior building wall or structure of a
single premises oriented to the public way or other properties that
it faces.
The length of the property line(s) of any single premises
along either a public way or other properties on which it borders.
See "Freestanding sign."
A sign used to identify a specific property by address, occupant
or use.
A sign characterized by the use of artificial light either
projecting through its surface(s) (internally illuminated); or reflecting
off its surface(s) (externally illuminated).
Any sign placed within a building, but not including window
signs as defined by this section. Interior signs, with the exception
of window signs as defined, are not regulated by this chapter.
An inclined decorative roof-like projection that is attached
to an exterior building facade.
Any sign attached to the restaurant building listing menu
food items.
A sign containing three or more faces.
A sign which contains a message that is not related to any
business purpose, but which expresses an opinion, political message
or other noncommercial statement.
See "Outdoor advertising sign."
A sign erected, maintained or used in the outdoor environment
for the purpose of the display of messages appurtenant to the use
of, products sold on, or the sale or lease of the property on which
it is displayed.
A permanent sign erected, maintained or used in the outdoor
environment for the purpose of the display of commercial or noncommercial
messages not appurtenant to the use of, products sold on, or the sale
or lease of the property on which it is displayed.
The extension of a building facade above the line of the
structural roof.
See "Freestanding sign."
A temporary sign intended to advance a political statement,
cause or candidate for office. A legally permitted outdoor advertising
sign shall not be considered to be a political sign.
Any sign not permanently attached to the ground or to a building
or building surface.
A sign other than a wall sign that is attached to or projects
more than 12 inches from a building face or wall or from a structure
whose primary purpose is other than the support of a sign. For visual
reference, see figure.[4]
A temporary sign advertising the sale, lease or rental of
the property or premises upon which it is located.
A sign that revolves 360° about an axis. See also "Animated
sign, mechanically activated."
The top edge of a peaked roof or, in the case of an extended
facade or parapet, the upper most point of said facade or parapet.
A sign mounted on, and supported by, the main roof portion
of a building, or above the uppermost edge of a parapet wall of a
building and which is wholly or partially supported by such a building.
Signs mounted on mansard facades, pent eaves and architectural projections
such as canopies or marquees shall not be considered to be roof signs.
For a visual reference example of a roof sign, and a comparison of
differences between roof and fascia signs, see figure.[5]
Any device visible from a public place that displays either
commercial or noncommercial messages by means of graphic presentation
of alphabetic or pictorial symbols or representations. Noncommercial
flags or any flags displayed from flagpoles or staffs will not be
considered to be signs.
The area of the smallest geometric figure, or the sum of
the combination of regular geometric figures, which comprise the sign
face. The area of any double-sided or "V" shaped sign shall be the
area of the largest single face only. The area of a sphere shall be
computed as the area of a circle. The area of all other multiple-sided
signs shall be computed as 50% of the sum of the area of all faces
of the sign.
Those letters, numerals, figures, symbols, logos and graphic
elements comprising the content or message of a sign, exclusive of
numerals identifying a street address only.
The surface upon, against or through which the sign copy
is displayed or illustrated, not including structural supports, architectural
features of a building or sign structure, nonstructural or decorative
trim, or any areas that are separated from the background surface
upon which the sign copy is displayed by a distinct delineation, such
as a reveal or border.
In the case of panel- or cabinet-type signs,
the sign face shall include the entire area of the sign panel, cabinet
or face substrate upon which the sign copy is displayed or illustrated,
but not open space between separate panels or cabinets.
In the case of sign structures with routed areas
of sign copy, the sign face shall include the entire area of the surface
that is routed, except where interrupted by a reveal, border, or a
contrasting surface or color.
In the case of signs painted on a building,
or individual letters or graphic elements affixed to a building or
structure, the sign face shall comprise the sum of the geometric figures
or combination of regular geometric figures drawn closest to the edge
of the letters or separate graphic elements comprising the sign copy,
but not the open space between separate groupings of sign copy on
the same building or structure.
In the case of sign copy enclosed within a painted
or illuminated border, or displayed on a background contrasting in
color with the color of the building or structure, the sign face shall
comprise the area within the contrasting background or within the
painted or illuminated border.
Any structure supporting a sign.
That which is built or constructed, or a portion thereof.
A sign intended to display either commercial or noncommercial
messages of a transitory or temporary nature. Portable signs or any
sign not permanently embedded in the ground or not permanently fixed
to a building or sign structure that is permanently embedded in the
ground are considered temporary signs.
A sign attached to the underside of a canopy or marquee.
Signs containing two faces of approximately equal size, erected
upon common or separate structures, positioned in a "V" shape with
an interior angle between faces of not more than 90° with the
distance between the sign faces not exceeding five feet at their closest
point.
A sign that is in any manner affixed to any exterior wall
of a building or structure and that projects not more than 12 inches
from the building or structure wall, including signs affixed to architectural
projections from a building, provided the copy area of such signs
remains on a parallel plane to the face of the building facade or
to the face or faces of the architectural projection to which it is
affixed. For visual reference and comparison examples of differences
between wall or fascia signs and roof signs, see figure.[6]
A sign affixed to or within 12 inches directly behind the
surface of a window with its message intended to be visible to and
readable from the public way or from adjacent property.
The agent or representative of the Town of Batavia, or his
delegates or deputies, responsible for the enforcement of the ordinances
and codes of the Town.
[1]
Editor's Note: The graphic representations
are on file in the Town offices.
[2]
Editor's Note: The figures are on file in
the Town offices.
[3]
Editor's Note: The figures are on file in
the Town offices.
[4]
Editor's Note: The figures are on file in
the Town offices.
[5]
Editor's Note: The figures are on file in
the Town offices.
[6]
Editor's Note: The figures are on file in
the Town offices.
Except when incidental to the construction of a building on the same lot, the excavation, processing or sale of sand, gravel or clay or other natural mineral deposits or the quarrying of any kind of rock formation shall require a special use permit from the Planning Board as provided for in § 235-63.
A.
Major excavation.
(1)
State permit. In order to obtain said special use
permit, the applicant shall furnish evidence of a valid permit from
the New York State (NYS) Department of Environmental Conservation
pursuant to Title 27, Article 23 of the Environmental Conservation
Law.
(2)
Reclamation. The applicant shall further be required
to comply with the reclamation standards established by the New York
State Department of Environmental Conservation while carrying out
such use.
B.
Minor excavation. As part of the application process
for a special use permit, the applicant's plan shall be presented
to the Genesee County Soil and Water Conservation District for its
review and comments. Also, before issuing a special use permit, the
Planning Board must find that such excavation will not endanger the
stability of adjacent land or structures or the quality or quantity
of groundwater and that it does not constitute a detriment to public
health, safety, or welfare by reason of excessive dust, noise, traffic,
erosion, siltation or other condition. In granting said special use
permit, the Planning Board shall specify any reasonable requirement,
including the following:
(1)
Minimum lot area. The minimum lot area shall be 10
acres.
(2)
Minimum setback requirements. All buildings shall
be located not less than 100 feet from any street or property line.
The top of the slope of all excavation operations shall be located
or shall occur not less than 100 feet from any street or property
line. The setback area shall not be used for any use in conjunction
with the excavation and appurtenant activities except for one public
notice sign identifying the use of the property, fencing, berms, buffers,
access roads and/or parking.
(3)
Slope. During mining the banks of all excavations
shall be maintained at a slope not to exceed the normal angle of repose
of such material.
(4)
Drainage. All surface drainage and any waste matter
shall be controlled to prevent any silt, waste products, process residues,
etc., from flowing onto public roads or adjacent property or into
any stream. Excavation areas shall be planned and graded to avoid
collections of stagnant water.
(5)
Dust. All storage areas, yards, service roads, or
other untreated open areas within the boundaries of the excavation
area shall be so maintained and improved as to minimize dust or other
windblown air pollutants.
(6)
Roadside landscape. Existing trees and ground cover
along public road frontage shall be preserved, maintained and supplemented
in the entire area of the roadside setback for the purpose of screening
and noise reduction. If, however, the existing topography and natural
vegetation does not lend itself to an economically feasible supplement
plan, the operation can, if properly landscaped with grass, trees
and shrubs, grade back the overburden around the perimeter of the
excavation site to create a berm for the purpose of screening and
noise reduction. No berm shall be constructed within 25 feet of any
right-of-way line or property boundary lines.
(7)
Fencing. Fencing may be required depending upon the
existence of an earthen berm, the nature of the operations, distance
from developed areas, distance from property lines, depth of pit water
and slope of pit walls.
(8)
Topsoil. All topsoil and subsoil shall be stripped
from the excavation areas and stockpiled and seeded for use in accordance
with the reclamation plan. The location of topsoil to be stored shall
be identified. Such stockpiles shall be treated to minimize the effects
of erosion by wind or water upon public roads, streams, or adjacent
property.
(9)
Erosion. The applicant's plan shall also include a
provision for the control of soil erosion.
(10)
Hours of operation. All operations shall be
conducted between the hours of 7:00 a.m. and 6:00 p.m. with no Sunday
or holiday operations, except in the case of public or private emergency
(i.e., flooding, spills, utility line breaks, etc.) or whenever any
reasonable or necessary repairs to equipment are required to be made.
(11)
Blasting and/or processing. Operations involving
blasting and on-site processing of mineral deposits shall not be allowed.
(12)
Reclamation plan. The applicant shall submit
a reclamation plan.
(a)
"Reclamation plan" means the applicant's proposal
for reclaiming the affected land, including a graphic and written
description of the proposed use for all affected land, the method
of reclamation and a schedule for performing reclamation.
(b)
Where feasible, reclamation shall be a continuing
operation. Grading, topsoil replacement and replanting of the area
designated for restoration shall continue during the permit period.
All reclamation work shall be complete within one year after the termination
of operations, at the expense of the operator.
(13)
Performance bond. A performance bond or some
other financial security may be required in the discretion of the
Planning Board to assure that the conditions stipulated in the approval
of the special use permit are carried out. Any such security shall
be in a form and amount acceptable to the Planning Board.
C.
Duration of special use permit.
(1)
The special use permit for a minor excavation shall
be issued for a period of one year, subject to a subsequent annual
review and recertification by the Planning Board based on a written
request for such continuance, which request shall be submitted to
the Town Building Inspector at least 60 days prior to the expiration
of each such one-year period. A public hearing shall not be required
for such annual recertification, except upon motion of the Planning
or Town Board.
(2)
The special use permit for a major excavation shall
continue as long as its New York State Department of Environmental
Conservation permit remains in effect, it complies with the terms
thereof, and it meets the reclamation standards established by the
New York State Department of Environmental Conservation.
(3)
If on-site mining or processing operations are not
carried out continuously for one year for a major or minor excavation,
the site shall be considered abandoned, and, prior to any further
excavation or processing, a new special use permit shall be required.
[Amended 2-20-2008 by L.L. No. 2-2008]
The Planning Board shall have the authority to require or allow a cluster residential development, also referred to as a "conservation subdivision," of one- and/or two-family dwellings, as specified in the New York State Town Law § 278, in any district that permits residences, provided that the following conditions are observed, in addition to the requirements in Chapter 204, Subdivision of Land:
A.
(Reserved)
B.
The developer shall provide for the permanent protection
of open space in a manner that is acceptable to the Town Board. In
no case shall such lands be less than 25% of the total project area.
All such lands shall be suitable, in the opinion of the Planning Board,
for the intended use.
C.
The developer shall seek preliminary, nonbinding,
informal conditional approval of the Planning Board of the design
and arrangement of streets, lots, open spaces, and other elements
of the project prior to filing the application for subdivision approval.
D.
The maximum building height and maximum lot coverage
requirements as set forth in Zoning Schedule A[1] of this chapter for the district involved apply to the
entire cluster development project, whereas the minimum frontage and
side and rear yard requirements for the applicable district apply
only to the outer lots of said cluster residential development. All
other area requirements as set forth in Zoning Schedule A may be modified
by the Planning Board.
[1]
Editor's Note: Zoning Schedule A is included at the end of this chapter.
E.
The permitted number of dwelling lots shall not exceed
the number that would be permitted if the land were subdivided into
lots for single-family dwellings that fully conform to the minimum
lot sizes established in Schedule A.[2]
[2]
Editor's Note: Zoning Schedule A is included at the end of this chapter.
[Added 2-20-2008 by L.L. No. 2-2008]
A.
Each multiple residence building, twin home dwelling
or townhouse structure shall be constructed and maintained in compliance
with the requirements of the Multiple Residence Law and the New York
State Uniform Fire Prevention and Building Code, as applicable. Such
structure shall, however, conform to the local Code if the Town has
established more stringent requirements.
B.
Each multiple residence, twin home dwelling or townhouse
development shall have a lot area of not less than two acres.
C.
There shall be a lot area of not less than 4,000 square
feet for each dwelling unit located on the lot.
D.
The minimum enclosed living area for each dwelling unit shall be in conformance with the requirements of § 235-17. Twin homes shall meet the requirements for two-family dwellings.
E.
No building shall contain more than eight dwelling
units.
F.
Each dwelling unit shall have its own separate full
bathroom.
G.
All multiple residence, twin home dwelling and townhouse
developments shall provide safe and efficient pedestrian circulation
and site lighting.
H.
All multiple residence buildings, twin home dwellings
and townhouse structures shall be served by publicly owned, operated
and maintained water supply and sanitary sewage disposal facilities.
I.
Each building shall be provided with suitable containers
for the storage of recyclable materials and refuse collections. Such
containers shall be screened from public view by use of fences or
solid walls.
K.
Two parking spaces shall be provided for each dwelling
unit. Each parking space shall have a minimum width of 10 feet, and
a minimum length of 20 feet. Not less than one parking space for each
dwelling unit shall be enclosed.
L.
In addition to the required parking spaces for each
dwelling unit, one additional space shall be provided in common parking
lots for every four dwelling units for the convenience of residents
and their guests. The location of common parking lots shall be determined
by the Planning Board as part of the site plan review process.
M.
Each dwelling unit shall have a rear yard adjacent
to the unit which shall be reasonably secluded from view from neighboring
property or streets and which shall include at least 500 square feet
of usable open space.
N.
No multiple residence, twin home dwelling or townhouse
development shall have more than two stories or be more than 35 feet
in height. Spires, chimneys, cupolas, flagpoles and antennas are exempt
from this limitation, provided that the antennas are visually integrated
into the building lines.
O.
No multiple residence, twin home dwelling or townhouse
building shall be less than 18 feet in width.
P.
No exterior wall shall exceed 50 feet in length unless
there is a lateral offset of at least four feet in its alignment.
Q.
Except for an accessory structure to an individual
dwelling unit, the minimum distance between a multiple residence or
townhouse dwelling structure and any other structure on a proposed
development site shall be 40 feet, and the minimum distance between
a twin home dwelling and any other structure on a proposed development
site shall be 20 feet.
R.
No swimming pool shall be located within 40 feet of
a multiple residence or townhouse dwelling structure or 20 feet from
a twin home dwelling.
S.
Not less than 20% of the land area within a multiple
residence, twin home dwelling or townhouse development, excluding
parking areas and vehicle access facilities, shall be established
and maintained as open space for the use and enjoyment of residents
and their guests.
T.
The coverage of all buildings and structures within
a multiple residence, twin home dwelling or townhouse development
shall not exceed 25% of the area of the entire site.
U.
No structure within a multiple residence, twin home
dwelling or townhouse development shall be set back less than 20 feet
from any common parking area.
V.
No structure within a multiple residence, twin home
dwelling or townhouse development shall be set back less than 50 feet
from a public road and not less than 50 feet from the external property
line for the development. However, side yard setbacks for individual
lots shall be zero feet from the property line wherever two townhouse,
twin home dwelling or multifamily dwelling units are joined by a common
wall along the parcel boundary.
A.
Recreational vehicles.
(1)
Recreational vehicles may only be temporarily occupied
as a dwelling as follows:
(b)
For not more than two separate periods, per
year, not exceeding two weeks each, one recreational vehicle may be
used as a temporary dwelling while parked on the same lot as a permanent
dwelling.
(c)
With a temporary use permit, a recreational
vehicle may be used as a temporary dwelling for a period not to exceed
six months and subject to the following conditions:
(2)
An unoccupied recreational vehicle may be stored anywhere
except in the required front or side yard areas of a lot not less
than 15 feet from any lot line or public right-of-way. When so stored,
no connections shall be permitted.
B.
Campgrounds.
(1)
Location. A campground shall be located and maintained
only in AG-R and MHP Districts upon issuance of a special use permit
and in accordance with the standards set forth in this chapter.
(2)
Existing campgrounds. In addition to the nonconforming use regulations set forth in § 235-15, all existing campgrounds must comply with this section whenever any addition, expansion or alteration (changes affecting lot size or layout, streets and utilities) of the use or operation is proposed.
(3)
Standards and requirements for the construction of campgrounds. Before a special use permit for a campground is issued under § 235-63, the Planning Board shall determine that the proposed use is designed and arranged in accordance with the following standards:
(a)
Site. The campground shall be located on a well-drained
site which is properly graded to ensure rapid drainage so as to be
free at all times from stagnant pools of water.
(b)
Lots. Each campground shall be divided into
lots. The total number of lots shall not exceed 12 per gross acre.
Each lot shall have a total area of not less than 2,500 square feet
with a minimum width of 30 feet. Only one recreational vehicle or
tent shall be permitted to occupy any one lot. Each lot shall have
a stand of sufficient size and durability to provide for the placement
and removal of a recreational vehicle and for the retention of such
recreational vehicle in a stable condition. The stand shall be suitably
graded to permit rapid surface drainage.
(c)
Setbacks. All recreational vehicles or occupied
tents situated in campgrounds shall not be located nearer than a distance
of:
(d)
Accessibility. Each campground shall be easily
accessible from an existing public road with entrances and exits designed
and strategically located for safe and convenient movement into and
out of the campground to minimize conflicts with the movement of traffic
on a public road. All entrances and exits shall be at right angles
to existing public roads and of sufficient width to facilitate the
turning movements of recreational vehicles.
(e)
Street system.
[1]
Each campground shall have improved streets
to provide convenient access to all lots and other important facilities
within the campground.
[2]
The street system shall be so designed to permit
safe and convenient vehicular circulation within the campground.
[4]
Except in cases of emergency, no parking shall
be allowed on such streets.
[5]
Adequate access shall be provided for each lot.
Such access shall have a minimum width of 10 feet.
(f)
Utilities. All campground sewer and water facilities
shall comply with the regulations of the Genesee County Department
of Health and the New York State Department of Environmental Conservation.
All other utilities shall comply with the New York State Uniform Code
and the authority having jurisdiction.
(g)
Open space. Any campground designed for 20 or
more sites shall provide a common open area suitable for recreation
and play purposes. Such open space shall be conveniently located.
The open space area shall be at least 10 percent of the gross land
area of the campground but not less than one acre.
(h)
Improvements. Lighting, landscaping and buffer
areas may be required by the Planning Board and shall be in keeping
with surrounding development, the unique features of the site and
the health and safety of occupants of the campground.
(i)
Management. Every campground shall be managed
from an office located on the premises. The management shall maintain
the campground in a clean and attractive manner and take reasonable
steps to protect the health, safety and comfort of all persons accommodated
therein.
(j)
Removal of wheels. Unless written consent is
received from the Planning Board, it shall be unlawful to remove wheels
from any recreational vehicle or otherwise permanently affix such
recreational vehicle to the ground. Such removal shall be grounds
for the revocation of the special use permit for such campground.
(k)
Fence. The Planning Board is authorized to require
that some or all of the campground be fenced if circumstances warrant.
The Planning Board shall decide what type of fencing is suitable.
(l)
Where dwellings on surrounding properties are
located within 1,000 feet of the campground, it shall be the responsibility
of the campground owner to maintain relative quiet during the hours
of 10:00 p.m. to 7:00 a.m.
(m)
Campground special use permits.
[1]
Pursuant to § 235-63D, the Building Inspector shall inspect at least annually the operation of a campground to make sure it complies with provisions of this chapter and any and all conditions prescribed by the Planning Board when issuing the special use permit.
[2]
Before receiving a special use permit for a
campground, the owner thereof shall make an adequate showing that
the subject property complies with the provisions of this section.
A.
Purpose. The purpose of this provision is to allow
for home occupations which are compatible with the neighborhoods in
which they are located. Some home occupations by the extent of the
investment required therefor and/or the nature of their operation
have a tendency of increasing beyond the scope of a home occupation
and thereby violating the use provisions of the zoning district in
which such home occupation exists and adversely affecting surrounding
property values.
B.
Process. An applicant shall apply to the Building
Inspector for a determination as to whether his/her proposed home
occupation is a Category I or II. Home occupations classified as Home
Occupation I are considered permitted uses in the AG, AG-R and C Districts
and may be issued a zoning permit by the Building Inspector. In the
R District a Home Occupation I shall require the issuance of a special
use permit by the Planning Board. Home Occupation II uses shall require
the issuance of a special use permit in all districts where home occupations
are allowed. Expansion of an existing Home Occupation I use to a Home
Occupation II shall require the issuance of a special use permit by
the Planning Board.
C.
Conditions. The following conditions are intended
to ensure both that the home occupation is secondary to the residential
use and that it is compatible with the residential character of the
neighborhood:
(1)
The home occupation shall be carried on inside the
principal dwelling and/or inside a building or other structure accessory
thereto.
(2)
No alteration to the exterior of the principal dwelling
and/or the accessory building or structure shall be made which changes
the residential character thereof.
(3)
Nonresident family members shall not be employed in
any Home Occupation I and no more than two nonresident persons shall
be employed actually on site at the residence in a Home Occupation
II.
(4)
Not more than 25% of the floor area of the principal
dwelling may be used for the home occupation, and the total floor
area to be utilized (not including accessory buildings and structures)
shall not exceed 500 square feet.
(5)
There shall be no exterior advertising of the home occupation, except for a sign no larger than four square feet for which a permit has been obtained pursuant to the provisions of § 235-39C(1).
(6)
There shall be no exterior storage of materials used
in the home occupation.
(7)
No home occupation shall result in:
(a)
Dissemination of noise, vibration, smoke, observable
gas or fumes, or other atmospheric pollutant beyond the boundaries
of the immediate site of the building in which such use is conducted.
(b)
Hazard of fire, explosion, release of toxic
or harmful substances (including solvents and waste products) or other
physical hazard to any person, building, vegetation, or groundwater.
(c)
Radiation or interference with radio or television
reception beyond the boundaries of the immediate site of the building
in which such use is conducted, or the testing of material or instruments
in such manner as to constitute a public nuisance.
(8)
Adequate parking shall be provided as set forth in § 235-34. Such off-street parking shall be located not less than 10 feet from any property line.
(9)
No residential lot shall contain more than one home
occupation. No residential lot shall contain a home occupation together
with a skilled trade shop or any other nonresidential use requiring
a special use permit.
A.
Roadside stands may be located in any district.
B.
Goods sold shall primarily be home grown.
C.
There shall be a front yard setback of at least 20
feet and side yard setbacks of at least 25 feet each.
D.
Stands shall be of a portable nature and must be removed
when not in use.
E.
Off-street parking shall be provided for a minimum
of three vehicles with additional provisions if traffic warrants.
F.
Two signs of not more than 12 square feet each may
be permitted, located not less than 10 feet from a lot line.
All proposals for installation and/or modification
of animal waste storage facilities shall be submitted to the Genesee
County Soil and Water Conservation District (GCSWCD) or United States
Natural Resources Conservation Service (NRCS) for its review and determination
as to acceptability. If a proposal is acceptable to GCSWCD or NRCS
then the Planning Board will consider the potential impacts posed
by such a facility upon surrounding land uses prior to taking final
action.
The purpose of this provision is to allow for
residents within the AG-R District who are self-employed skilled trades
persons to operate a shop for fabrication of fixtures, cabinets, etc.,
for installation by them at their various job sites. It is recognized
that operation of such shops without adequate regulations and conditions
may pose adverse impacts upon neighboring residential uses.
A.
Process. An applicant may apply to the Planning Board
for a special use permit to establish a skilled trade shop in the
AG-R District.
B.
Conditions. The following conditions are intended
to ensure both that the skilled trade shop is secondary to the residential
use and that it is compatible with the residential character of the
neighborhood:
(1)
The skilled trade shall be carried on inside the principal
dwelling and/or inside a building or other structure accessory thereto.
(2)
No alteration to the exterior of the principal dwelling
and/or the accessory building or structure shall be made which changes
the residential character thereof.
(3)
No more than one nonresident person shall be employed
in the skilled trade shop.
(4)
Not more than 25% of the floor area (with a maximum
of 500 square feet) of the principal dwelling may be used for the
skilled trade shop. Occupation of accessory buildings to be utilized
shall not exceed 2,000 square feet.
(5)
There shall be no exterior advertising of the skilled trade shop, except for a sign no larger than four square feet for which a permit has been obtained pursuant to the provisions of § 235-39C(1).
(6)
There shall be no exterior storage of materials used
or products/fixtures made in the skilled trade shop.
(7)
No skilled trade shop shall result in:
(a)
Dissemination of noise, vibration, smoke, observable
gas or fumes, or other atmospheric pollutant beyond the boundaries
of the immediate site of the building in which such use is conducted.
(b)
Hazard of fire, explosion, release of toxic
or harmful substances (including solvents and waste products) or other
physical hazard to any person, building, vegetation, or groundwater.
(c)
Radiation or interference with radio or television
reception beyond the boundaries of the immediate site of the building
in which such use is conducted, or the testing of material or instruments
in such manner as to constitute a public nuisance.
(8)
Adequate parking shall be provided as set forth in § 235-34. Such off-street parking shall be located not less than 10 feet from any property line.
(9)
No residential lot shall contain more than one skilled
trade shop. No residential lot shall contain a skilled trade shop
together with a home occupation or any other nonresidential use requiring
a special use permit.
(10)
The Planning Board may require as a condition
of the special use permit that the applicant install and maintain
a buffer strip and/or fencing between the proposed skilled trade shop
and neighboring residential uses if the Board determines such condition
is a reasonable mitigation factor.
[Added 2-20-2008 by L.L. No. 2-2008]
The Planning Board may approve a special use permit for an auction house in the AG/R and C Districts, provided that the following requirements are met, in addition to the standards and procedures for special use permits included in § 235-63.
A.
The site must be located on a New York State highway
that can handle the anticipated traffic volume before and after auctions.
B.
The use as an auction house shall not be detrimental
to adjacent properties when considering traffic, safety, parking,
noise, light, or glare.
C.
Outdoor lighting shall be shielded so as to prevent
light from directly hitting adjacent property or any public right-of-way.
The site plan shall indicate the style and location of all outdoor
lighting.
D.
There shall be no outdoor storage permitted except
for during the three days before and after an advertised auction.
The purpose of this section is to provide for
the construction of ponds that are adequately designed and located
so as to not pose adverse impacts upon surrounding land uses. Farm
water supply, conservancy, stormwater/erosion control and fire protection
or other ponds may be located within the AG, AG-R, C, I and IP Districts
upon issuance of a special use permit provided the following criteria
are met:
A.
Purposes. The Town of Batavia has conducted a study
of the potential secondary affects posed by adult businesses. This
study, along with other similar studies, has shown that buildings
and establishments operated as adult uses pose secondary effects that
are detrimental and harmful to the health, safety, morals and general
welfare of a community. In order to promote the health, safety, morals
and general welfare of the residents of the Town of Batavia, this
section is intended to control those secondary effects of adult businesses
by restricting adult uses to nonresidential areas of the town and
otherwise regulating their operation.
B.
ADULT ESTABLISHMENT
(1)
(a)
[1]
[2]
(b)
(c)
[1]
[2]
[3]
(2)
(a)
(b)
(c)
(3)
(a)
[1]
[2]
(b)
(4)
(5)
(6)
PERSON
SPECIFIED ANATOMICAL AREAS
SPECIFIED SEXUAL ACTIVITIES
SUBSTANTIAL
Definitions. As used in this section, the following
terms shall have the meanings indicated:
A commercial establishment, including but not limited to
an adult bookstore, adult eating or drinking establishment, adult
theater, adult motel, adult massage establishment, nude model studio
or other adult commercial establishment, or any combination thereof,
as defined below:
ADULT BOOKSTORE:
A bookstore which has as a substantial portion
(equal to or greater than 25%) of its stock-in-trade and/or floor
area as hereinafter defined any one or more of the following:
Books, magazines, periodicals or other printed
matter which is characterized by an emphasis upon the depiction or
description of specified sexual activities or specified anatomical
areas; or
Photographs, films, motion pictures, videocassettes,
slides or other visual representations which are characterized by
an emphasis upon the depiction or description of specified sexual
activities or specified anatomical areas.
For the purpose of determining whether a substantial
portion (equal to or greater than 25%) of an establishment includes
an adult bookstore, the following factors shall be considered:
For the purpose of determining whether a bookstore has a substantial portion (equal to or greater than 25%) of its stock in materials defined in Subsection (1)(a)[1] or hereof, the following factors shall be considered:
The amount of stock accessible to customers
as compared to the total stock accessible to customers in the establishment;
The amount of floor area and cellar space accessible
to customers containing such stock; and
The amount of floor area and cellar space accessible
to customers containing such stock as compared to the total floor
area and cellar space accessible to customers in the establishment.
ADULT EATING OR DRINKING ESTABLISHMENTAn eating or drinking establishment which regularly features any one or more of the following:
Live performances which are characterized by
an emphasis upon the depiction or description of specified anatomical
areas or specified sexual activities; or
Films, motion pictures, videocassettes, slides
or other visual representations which are characterized by an emphasis
upon the depiction or description of specified sexual activities or
specified anatomical areas; and
Employees who as part of their employment, regularly
expose to patrons specified anatomical areas, and which is not customarily
opened to the general public during such features because it excludes
minors by reason of age.
ADULT THEATER:
A theater which regularly features one or more
of the following:
Films, motion pictures, videocassettes, slides
or other visual representations which are characterized by an emphasis
upon the depiction or description of specified sexual activities or
specified anatomical areas; or
Live performances which are characterized by
an emphasis upon the depiction or description of specified anatomical
areas or specified sexual activities, and which is not customarily
opened to the general public during such features because it excludes
minors by reason of age.
"Adult theater" shall include commercial establishments
where such materials or performances are viewed from individual enclosures.
ADULT MASSAGE ESTABLISHMENTAny establishment having a fixed place of business where massages are administered for pay, including but not limited to massage parlors, sauna baths and steam baths. This definition shall not be construed to include a hospital, nursing home or medical clinic or the office of a physician, surgeon, chiropractor, osteopath, duly licensed massage therapist, or duly licensed physical therapist, or barbershops or beauty parlors in which massages are administered only to the scalp, face, neck and shoulders. This definition shall also exclude health clubs which have facilities for physical exercise, such as tennis courts, racquetball courts or exercise rooms, and which do not receive their primary source of revenue through the administration of massages.
NUDE MODEL STUDIOAny place where a person who appears in a state of nudity or displays specified anatomical areas is regularly provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any other form of consideration, other than as part of a course of instruction offered by an educational institution established pursuant to the laws of New York State.
OTHER ADULT COMMERCIAL ESTABLISHMENTA facility, other than an adult bookstore, adult eating or drinking establishment, adult theater, adult motel, adult massage establishment, nude model studio, commercial studio, or business or trade school, which features employees who, as part of their employment, regularly expose to patrons specified anatomical areas and which is not customarily open to the general public during such features because it excludes minors by reason of age.
A person, firm, partnership, corporation, association or
legal representative, acting individually or jointly.
For the purpose of defining adult establishments:
An amount equal to or greater than 25% of the total.
C.
Restrictions affecting adult uses. Adult uses, including
but not limited to an adult bookstore, adult motion-picture theater,
adult mini-motion-picture theater, and adult entertainment cabaret,
shall be permitted subject to the following restrictions (all distance
measurements are from respective property and/or district lines):
(1)
No such adult uses shall be within 200 feet of another
existing adult use.
(2)
No such adult use shall be located within 100 feet
of the boundaries of any Agricultural-Residential (AG-R), Agricultural
(A), Residential (R) or Mobile Home Park (MHP) Zoning District or
within 500 feet of any existing residential use located on another
lot.
(3)
No such adult use shall be located within 1,000 feet
of a preexisting school or church, day-care center, park, playground
or community center.
(4)
No such adult use shall be located in any zoning district
except the Industrial District.
D.
Prohibition regarding public observation. No adult
use shall be conducted in any manner that permits the observation
of any material depicting, describing or relating to specified sexual
activities or specified anatomical areas from any public way or from
any property not registered as an adult use. This provision shall
apply to any display, decoration, sign, show window or other opening.
No person, firm or corporation shall, after
the effective date of this chapter, cut, construct or locate any driveway
entrance or exit into a highway in the Town of Batavia without having
first received written permission to do so from the appropriate Highway
Department or authority having jurisdiction, namely the New York State
Department of Transportation, Genesee County Highway Department, Town
of Batavia Highway Department, Town of Batavia Planning Board or Town
Board. Three copies of such written permission shall be submitted,
one to each of the following: Town of Batavia Highway Superintendent,
Town Building Inspector, and Town Clerk. If the proposed driveway
is in a designated wetland, then the appropriate Department of Environmental
Conservation permits shall also be required and three copies provided
as above.
A.
The purpose and intent of this provision is to allow
by special use permit the installation of elderly cottage housing
opportunity (ECHO) units on the same lots with single-family dwelling
units in the Agricultural-Residential (AG-R) District. The reasoning
behind providing this type of housing option is to:
(1)
Foster and support extended families;
(2)
Permit adult children to provide small, temporary
homes for their aging parents who are in need of support, while maintaining
as much of the independence of the two generations as possible;
(3)
Reduce the degree to which elderly homeowners have
to choose between increasing isolation in their homes and institutionalization
in nursing homes;
(4)
Encourage the continued development and use of small
homes specifically designed and built for elderly people which include
such features as easy adaptation to handicapped accessibility, safe
exit features, and fire-resistant construction;
(5)
Permit ECHO housing in a manner that protects the
property values and character of neighborhoods by ensuring that the
units are compatible with the neighborhood and are easily removable;
and
(6)
Enable the elderly living in homes too large for their
needs to move to more appropriate housing and thereby make larger
homes available to house larger families.
B.
Application process. Application for a special permit for an ECHO unit shall be made to the Building Inspector in accordance with the standards and procedures set forth in § 235-63, subject to the following additional provisions:
(1)
These special use permits do not run with the land
inasmuch as they represent the nonpermanent (temporary) placement
of an ECHO unit for a period of time which is determined by the actual
occupancy of the ECHO unit and the principal use (single-family dwelling).
(2)
The applicant must certify that he or she understands
that the permit is issued solely for the use of the named occupants;
has made plans for the removal of the unit; agrees to provide the
annual recertification required by this section; and recognizes the
possible sanctions for failure to promptly remove the ECHO unit upon
termination or revocation of the special use permit.
(3)
Failure to remain in compliance with the requirements
set forth in this section may result in revocation of the special
use permit.
C.
Occupancy.
(1)
At the time the special permit is issued, at least
one intended occupant of the ECHO unit must be at least 60 years of
age, and any other occupant must be at least 55 years of age. Subsequently,
if the occupant who is 60 no longer occupies the ECHO unit, and all
other conditions continue to apply, the special permit may be continued
for the other occupant, even if the person is less than 60 years of
age.
(2)
At least one occupant of the principal dwelling and
at least one occupant of the ECHO unit must be related by blood, marriage,
or adoption.
(3)
In no case shall there be more than two occupants
of an ECHO unit.
(4)
The special use permit shall be issued to the owner
of the principal dwelling and lot and shall specify the occupants
of the ECHO unit by name.
D.
Construction and installation. The unit shall be constructed
and installed in accordance with Chapter B of the New York State Uniform
Fire Prevention and Building Code, the New York State Energy Code
and any other applicable laws, ordinances and/or regulations of the
Town of Batavia. No additional buildings or structures shall be allowed
on a lot which would hinder the removal of an ECHO unit. The applicant
shall provide the necessary documentation from the Genesee County
Health Department that the water supply and wastewater treatment systems
are adequate for both the principal dwelling and ECHO unit.
E.
Size of unit. The minimum floor area of an ECHO unit
shall be 300 square feet, the maximum floor area 1,000 square feet,
and the maximum height 16 feet or one story.
F.
Placement of an ECHO unit. The ECHO unit shall only
be placed in a side or rear yard and shall comply with all minimum
yard setback and maximum lot coverage requirements (see Zoning Schedule
A).[1]
[1]
Editor's Note: Zoning Schedule A is included at the end of this chapter.
G.
Lot size. An ECHO unit shall only be installed on
a lot which meets the current minimum lot size for the AG-R District;
installation on undersized preexisting lots shall not be allowed (see
Zoning Schedule A).
H.
Parking. In addition to the parking required for the principal dwelling, one parking space per additional vehicle (minimum of one additional space) shall be required together with the provision of a turnaround as required in § 235-34.
I.
Number of dwelling units per lot. ECHO units shall
only be placed on a lot with a single-family dwelling, limited to
one ECHO unit per lot.
J.
Removal. The ECHO unit shall be removed within 90
days of the date its occupancy ceases to comply with the requirements
of this section [i.e., death or permanent change of residence of the
original occupant(s) of the ECHO unit]. Once the ECHO unit is removed,
the site shall be restored so that no visible evidence remains of
the ECHO unit and its accessory elements. If the ECHO unit has not
been removed by the end of this ninety-day period, in addition to
the existing penalties of this chapter, additional actions may be
taken to ensure removal, including removal and salvage by the town
with a lien imposed to defray any costs incurred. The Planning Board,
upon a showing of extraordinary circumstances making removal of the
ECHO unit impossible during the ninety-day grace period, may grant
one extension of up to 90 days for removal of the ECHO unit.
K.
Annual recertification. Each year, two weeks prior
to the anniversary date of the original issuance of a special use
permit for an ECHO unit, the property owner shall provide certification
to the Building Inspector that all the terms, conditions and requirements
associated with said special use permit are being fully complied with.
No commercial communication tower or antenna(s)
shall hereafter be used, erected, moved, reconstructed, changed or
altered unless in conformity with these regulations.
A.
Shared use of existing towers and/or structures. At
all times, shared use of existing towers and/or structures (i.e.,
a water tower, building, etc.) shall be preferred to the construction
of new commercial communication towers. An applicant shall be required
to present an adequate report inventorying existing towers within
reasonable distance of the proposed site and outlining opportunities
for shared use of existing facilities as an alternative to a proposed
new commercial communication tower.
(1)
The installation of a commercial communications antenna(s)
on an existing structure located within the AG, AG-R and C Districts
shall be considered a permitted use not subject to site plan review,
provided the following criteria are met:
(a)
The existing structure is not increased in height
or otherwise modified so as to change its visual appearance;
(b)
The antenna(s) does not extend above such structure
more than 10 feet; and
(c)
The applicant provides the necessary documentation
to the Building Inspector to verify the existing structure and proposed
antenna(s) installation would comply with the New York State Uniform
Fire Prevention and Building Code.
(2)
An applicant proposing to share use of an existing
tower and/or structure shall be required to document intent from an
existing tower/structure owner to allow shared use.
B.
New or altered towers and/or structures.
(1)
The Planning Board may, at its sole discretion, consider
a new or altered (including towers or structures which are modified,
reconstructed or changed) commercial communication tower/structure
where the applicant demonstrates to the satisfaction of the Planning
Board that shared usage of an existing tower/structure is impractical.
The applicant shall be required to submit a report demonstrating good
faith efforts to secure shared use from existing towers/structures
as well as documentation of the physical and/or financial reasons
why shared usage is not practical. Written requests and responses
for shared use shall be provided.
(2)
The applicant shall be required to submit a site plan in accordance with § 235-63 (site plan review provisions need to be added) for all commercial communication towers that are proposed to be erected, moved, reconstructed, changed or altered. Site plan review will also be required in those instances when antennas are being added to existing structures not in compliance with the criteria set forth in Subsection A of this section. In addition to § 235-63, the site plan shall show all existing and proposed structures and improvements, including roads, buildings, tower(s), guy wire anchors, parking and landscaping, and shall include grading plans for new facilities and roads.
C.
Supporting documentation. The Planning Board shall require that the site plan include a completed visual environmental assessment form (Visual EAF - SEQR) and documentation on the proposed intent and capacity of use as well as a justification for the height of any tower or antenna and justification for any required clearing. The applicant must provide a coverage/interference analysis and capacity analysis that location of the antennas as proposed is necessary to meet the frequency reuse and spacing needs of the cellular system and to provide adequate portable cellular telephone coverage and capacity to areas which cannot be adequately served by locating the antennas in a less restrictive district. The Planning Board may require submittal of a more detailed visual analysis based on the results of the Visual EAF in addressing this subsection and Subsections J and K of this section.
D.
Shared usage of site with new tower. Where shared usage of an existing tower/structure is found to be impractical, as determined by the sole discretion of the Planning Board, the applicant shall investigate shared usage of an existing tower/structure site for its ability to accommodate a new tower and accessory uses. Documentation and conditions shall be in accordance with Subsection B(1) and (2) of this section. Any new commercial communication tower approved for an existing tower/structure site shall be subject to the standards of Subsections F through N of this section.
E.
New tower at a new location. The Planning Board may consider a new commercial communication tower on a site not previously developed with an existing tower/structure when the applicant demonstrates that shared usage of an existing tower site is impractical, as determined by the sole discretion of the Planning Board, and submits a report as described in Subsection B of this section.
F.
Future shared usage of new towers. The applicant must
design a proposed commercial communication tower to accommodate future
demand for commercial broadcasting and reception facilities. This
requirement may be waived, in the sole discretion of the Planning
Board, provided that the applicant demonstrates that provision of
future shared usage of the facility is not feasible and is an unnecessary
burden, based upon:
(1)
The number of Federal Communications Commission (FCC)
licenses foreseeably available for the area;
(2)
The kind of tower site and structure proposed;
(3)
The number of existing and potential licenses without
tower spaces;
(4)
Available spaces on existing and approved towers;
and
(5)
Potential adverse visual impact by a tower designed
for shared usage.
G.
Setbacks for new towers. All proposed commercial communication
towers and accessory structures shall be set back from abutting residential
parcels, public property or street lines a distance sufficient to
contain on site substantially all icefall or debris from tower failure
and preserve the privacy of adjoining residential properties.
(1)
All commercial communication tower bases must be located
at a minimum setback from any property line at a distance at least
equal to the tower height, or the distance between the tower base
and guy wire anchors, or the minimum setback of the underlying zoning
district, or a minimum setback at a distance which shall be established
in the sole discretion of the Planning Board based on the unique characteristics
of the site, whichever of the foregoing is greater. The minimum setback
requirement of this subsection may be increased at the discretion
of the Planning Board or it may be decreased in those instances when
the applicant has submitted plans for a tower designed in such a manner
as to collapse within a smaller area. Such tower design and collapse
zone must be acceptable to the Town Engineer and the Planning Board.
(2)
Accessory structures must comply with the minimum
setback requirements in the underlying district.
H.
Visual impact assessment. The Planning Board shall
require the applicant to undertake a visual impact assessment of any
proposed new towers or any proposed modifications of an existing tower
that will increase the height of the existing tower. Construction
of a new commercial communication tower or modification of an existing
tower shall be subject to the relevant guidelines and criteria below
that are determined, by the sole discretion of the Planning Board,
at the presubmission conference to be appropriate:
(1)
Assessment of before and after views from key viewpoints
both inside and outside of the town, including from state highways
and other major roads, from state and local parks and other public
lands, from any privately owned preserves and historic sites normally
open to the public, and from any other location where the site is
visible to a large number of visitors or travelers.
(3)
Assessment of visual impact of the tower base, guy
wires, accessory buildings and overhead utility lines from abutting
properties and streets.
I.
New tower design. Alternate designs shall be considered
for new towers, including lattice and single pole structures. Plans
should show that the owner of the commercial communication tower has
agreed to permit other persons to attach other communication apparatus
which does not interfere with the primary purposes of the commercial
communication tower, provided that such other persons agree to negotiate
a reasonable compensation to the owner from such liability as may
result from such attachment. The design of a proposed new tower shall
comply with the following:
(1)
Unless specifically required by other regulations,
all towers shall have a neutral, earth tone, sky tone or similar finish
that will minimize the degree of visual impact that the new tower
may have. Artificial lighting, including strobes, beacons and other
hazard-avoidance lighting, shall be limited to that required by the
Federal Aviation Administration (FAA) or other governmental agency,
recognized safety guidelines and the Planning Board.
(2)
Any new tower shall be designed and constructed to
have the minimum height and carrying capacity needed to provide future
shared usage (co-locating of a minimum of two additional antennas).
(3)
The Planning Board may request a review of the application
by the Town Engineer, or other engineer selected by the Planning Board,
for evaluation of need for and design of any new tower. The costs
associated for such review shall be borne by the applicant.
(4)
Accessory facilities shall maximize use of building
materials, colors and textures designed to blend with the natural
surroundings.
(5)
No portion of a tower may be used for signs or advertising
purposes, including company name, banners, streamers, etc.
(6)
The applicant shall provide documentation acceptable
to the Planning Board that certifies the operation of the proposed
commercial communication tower facility will not interfere with usual
and customary transmission or reception of radio, television or other
communication equipment.
(7)
Space on communication towers shall be made available
for public safety purposes (i.e., Genesee County Public Safety Radio
System) at no cost to public safety agencies.
J.
Existing vegetation. Existing on-site vegetation shall
be preserved to the maximum extent possible, and no cutting of trees
exceeding four inches in diameter (measured at a height of four feet
off the ground) shall take place prior to approval of the special
permit. Clear cutting of all trees in a single contiguous area exceeding
20,000 square feet shall be prohibited.
K.
Screening. Deciduous or evergreen tree plantings may
be required to screen portions of the tower and accessory structures
from nearby residential property as well as from public sites known
to include important views or vistas. Where the site abuts residential
or public property, including streets, the following vegetative screening
shall be required: for all commercial communication towers, at least
one row of native evergreen shrubs or trees capable of forming a continuous
hedge at least 10 feet in height within two years of planting shall
be provided to effectively screen the tower base and accessory facilities.
In the case of poor soil conditions, planting may be required on soil
berms to assure plant survival. Plant height in these cases shall
include the height of any berm.
L.
Access. Adequate emergency and service access shall
be provided. Maximum use of existing roads, public or private, shall
be made. Road construction shall, at all times, minimize grounds disturbance
and vegetation cutting to within the toe of fill, the top of cuts,
or no more than 10 feet beyond the edge of any pavement. Road grades
shall closely follow natural contours to assure minimal visual disturbance
and reduce soil erosion potential.
M.
Parking. Parking shall be provided in accordance with § 235-34. No parking space shall be located in any required yard.
N.
Fencing. Sites of proposed new commercial communication
towers and sites where modifications to existing towers are proposed
shall be adequately enclosed by a fence eight feet in height from
finished grade, unless the applicant demonstrates to the sole discretion
of the Planning Board that such measures are unnecessary to ensure
the security of the facility. Such security fencing shall surround
the tower base as well as each guy anchor.
O.
Maintenance and/or performance bond. Prior to approval
of any application, the Planning Board, in its sole discretion, may
require the applicant and/or owner to post and file with the Town
Clerk a maintenance and/or performance bond or other form of security
acceptable to the Town Attorney in an amount sufficient to cover the
installation, maintenance and/or construction of said tower during
its lifetime and provide for its removal. The amount required shall
be determined in the sole discretion of the Planning Board, based
upon the unique characteristics of the tower and site. In furtherance
of the foregoing, the applicant and/or owner shall cooperate with
the Planning Board in supplying all necessary construction and maintenance
data to the Board prior to approval of any application to accomplish
the foregoing.
P.
Removal of obsolete/unused facilities. Approval of
a new commercial communication tower facility shall be conditioned
upon the applicant's agreement to remove such facility once it is
no longer used. Removal of such obsolete and/or unused commercial
communication tower facilities shall take place within 12 months of
cessation of use. The applicant shall submit an executed removal agreement
with his application to ensure compliance with this requirement.
The purpose of this provision is to allow for
operation of storage yards for landscaping contractors within the
AG-R District. It is recognized that operation of such business is
somewhat similar in operation to agricultural uses and that without
adequate regulations and conditions it may pose adverse impacts upon
neighboring residential uses.
A.
Process. An applicant may apply to the Planning Board
for a special use permit to establish a landscaping contractor's yard
in an AG-R District.
B.
Conditions. The following conditions are intended
to ensure the landscaping contractor's yard is compatible with the
agricultural and residential character of the AG-R District:
(1)
The landscaping contractor's yard shall comply with
all the minimum required yard setbacks for the AG-R District by maintaining
such minimum yard setback requirements as buffer areas in which no
storage of equipment, vehicles, materials (rock, stone, bricks, fencing,
fixtures, etc.), tools and other items related to his/her business
is allowed.
(2)
No direct retail sales shall be permitted on site.
(3)
There shall be no exterior advertising of the landscaping contractor's yard, except for a sign no larger than four square feet for which a permit has been obtained pursuant to the provisions of § 235-39C(1).
(4)
The Planning Board, through site plan review, shall
determine the location and extent of storage of equipment, vehicles,
materials (rock, stone, bricks, fencing, fixtures, etc.), tools and
other items related to the business.
(5)
No landscaping contractor's yard shall result in:
(a)
Dissemination of noise, vibration, smoke, observable
gas or fumes, or other atmospheric pollutant beyond the boundaries
of the immediate site of the building in which such use is conducted.
(b)
Hazard of fire, explosion, release of toxic
or harmful substances (including solvents and waste products) or other
physical hazard to any person, building, vegetation, or groundwater.
(6)
Adequate parking shall be provided as set forth in § 235-34. Such off-street parking shall be located not less than 10 feet from any property line.
(7)
The Planning Board may require as a condition of the
special use permit that the applicant install and maintain a buffer
strip and/or fencing between the proposed landscaping contractor's
yard and neighboring residential uses if the Board determines such
condition is a reasonable mitigation factor.
[Added 11-18-2015 by L.L.
No. 6-2015; amended 4-20-2022 by L.L. No. 2-2022]
A.
Statement of purpose.
(1)
This solar energy section is adopted to advance and protect
the public health, safety, and welfare of the Town of Batavia by creating
regulations for the installation and use of solar energy generating
systems and equipment with the following objectives:
(a)
To take advantage of a safe, abundant, renewable and nonpolluting
energy resource;
(b)
To decrease the cost of electricity to the owners of residential
and commercial properties; including single-family houses;
(c)
To increase employment and business development in the Town,
to the extent reasonably practical, by furthering the installation
of solar energy systems;
(d)
To mitigate the impacts of solar energy systems on environmental
resources such as important agricultural lands, forests, wildlife
and other protected resources;
(f)
To facilitate the location of the larger solar energy systems
in a way that best fits into the surrounding neighborhood and the
adjoining uses.
B.
Definitions.
(1)
BUILDING-INTEGRATED SOLAR ENERGY SYSTEM
FARMLAND OF STATEWIDE IMPORTANCE
FRONT YARD
GLARE
GROUND-MOUNTED SOLAR ENERGY SYSTEM
LOT
LOT AREA
LOT DEPTH
LOT FRONTAGE
LOT LINE
LOT LINE, FRONT
LOT LINE, REAR
LOT LINE, SIDE
LOT WIDTH
LOT, CORNER
NATIVE PERENNIAL VEGETATION
NONPARTICIPATING PROPERTY
PARTICIPATING PROPERTY
POLLINATOR
PRIME FARMLAND
ROOF-MOUNTED SOLAR ENERGY SYSTEM
SETBACK
SOLAR ACCESS
SOLAR ENERGY EQUIPMENT
SOLAR ENERGY SYSTEM
(a)
(b)
(c)
(d)
SOLAR FARM
SOLAR PANEL
SOLAR SKYSPACE
STORAGE BATTERY
STRUCTURE
The following definitions shall apply to this section and supersede
any conflicting definitions found elsewhere in the Code:
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.
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 Town of Batavia Farmland Protection Plan shall be
reviewed.
The unoccupied, open space within and extending the full
width of the lot from the front lot line to the front line of the
principal building which is nearest to such front lot line.
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.
Land occupied or which may be occupied by a building and
its accessory uses, together with required open spaces, having not
less than the minimum area, width and depth required for a lot in
the district in which such land is situated, and having frontage on
a street or other means of access as may be determined by the Planning
Board to be adequate as a condition for issuance of a building permit.
Any land included in a public road, street or highway right-of-way
shall not be considered part of the lot for zoning purposes.
The total area within property lines. Any land included in
a public road, street or highway right-of-way shall not be included
in calculating lot area.
The mean horizontal distance from the street right-of-way
line of the lot to its opposite rear line measured at right angles
to the street right-of-way line.
The horizontal distance between the side lot lines measured
at the street right-of-way line.
The property lines bounding a lot as defined herein.
In the case of a lot abutting upon only one street, the line
separating the lot from the street right-of-way. In the case of a
lot abutting more than one street, each street line shall be considered
a front lot line.
The lot line which is generally opposite the front lot line.
If the rear lot line is less than 10 feet in length or if the lot
comes to a point at the rear, the rear lot line shall be deemed to
be a line parallel to the front line, not less than 10 feet long,
lying wholly within the lot and farthest from the front lot line.
The property line or lines extending from the front lot line
to the rear lot line except in the case of corner lots which have
no rear lot line.
The horizontal distance between the side lot lines measured
at right angles to the lot depth.
A lot located at the junction of and fronting on two or more
intersecting streets. (Also see the definition of "lot line, front.")
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.
Any property that is not a participating property.
A host property or any real property that is the subject
of an agreement between the property owner and a solar energy system
owner (or affiliate), regardless of whether any part of a solar energy
system is constructed on said property. (This agreement status will
impact certain requirements of this Code, specifically setbacks.)
Bees, birds, bats, and other insects or wildlife that pollinate
flowering plants and includes both wild and managed insects.
Land, designated as "prime farmland" 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. In determining prime farmland,
consideration must also be given to the Town of Batavia's Farmland
Protection Plan.
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.
The distance from a front, side or rear lot line or structure
to the fence that surrounds the solar installation, or any equipment
not located within the fence line.
Space open to the sun and clear of overhangs or shade so
as to permit the use of active and/or passive solar energy systems
on individual properties.
Electrical material, hardware, inverters, conduit, storage
devices, or other electrical and photovoltaic equipment associated
with the production of electricity.
The components and subsystems required to convert solar energy
into electric energy suitable for use. The term includes, but is not
limited to, solar panels and solar energy equipment. The area of a
solar energy system includes all the land inside the perimeter of
the solar energy system, which extends to any interconnection equipment.
A solar energy system 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 (that are accessory uses/structures) with a total surface
area of all solar panels on the lot of up to 4,000 square feet and
that generate up to 110% of the electricity consumed on the site over
the previous 12 months (information on consumption to be provided
at time of application).
Tier 3 solar energy systems are systems that are not included
in the list for Tier 1 and Tier 2 solar energy systems and do not
exceed 30 acres in size (as defined by the fenced-in area). They can
be primary or accessory uses/structures.
Tier 4 solar energy systems are systems that are not included
in the list of Tier 1, Tier 2, and Tier 3 systems.
An area of land used primarily for the purpose of producing
electricity by means of a solar energy system.
A photovoltaic device capable of collecting and converting
solar energy into electricity.
See "solar access."
A device that stores energy and makes it available in an
electrical form.
A residential dwelling, commercial or industrial building
(habitable buildings). It does not include such things as garages,
sheds, barns, etc.
(2)
The following definitions are acronyms used in this solar section.
(a)
Per- and polyfluoroalkyl substances (PFASs) are synthetic organofluorine
chemical compounds that have multiple fluorine atoms attached to an
alkyl chain. As such, they contain at least one perfluoroalkyl moiety
-Cn F2n-. According
to the Organization for Economic Cooperation and Development (OECD),
PFASs are defined as fluorinated substances that contain at least
one fully fluorinated methyl or methylene carbon atom (without any
H/Cl/Br/I atom attached to it), i.e., with a few noted exceptions,
any chemical with at least a perfluorinated methyl group (-CF3) or a perfluorinated methylene group (-CF2-) is a PFAS.
(b)
Perfluorooctanesulfonic acid (PFOS) (conjugate base perfluorooctanesulfonate)
is an anthropogenic (human-made) fluorosurfactant, now regarded as
a global pollutant. PFOS was the key ingredient in Scotchgard™, a fabric protector made by 3M, and related
stain repellents. In many contexts, PFOS refers to the parent sulfonic
acid and its various salts of perfluorooctanesulfonate. These are
all colorless or white, water-soluble solids. Although of low acute
toxicity, PFOS has attracted much attention for its pervasiveness
and environmental impact.
(c)
Perfluorooctanoic acid (PFOA) (conjugate base perfluorooctanoate),
also known colloquially as "C8," is a perfluorinated carboxylic acid
produced and used worldwide as an industrial surfactant in chemical
processes and as a material feedstock. PFOA is considered a surfactant,
or fluorosurfactant, due to its chemical structure, which consists
of a perfluorinated, n-octyl "tail group" and a carboxylate "head
group." The head group can be described as hydrophilic while the fluorocarbon
tail is both hydrophobic and lipophobic. The tail group is inert and
does not interact strongly with polar or nonpolar chemical moieties;
the head group is reactive and interacts strongly with polar groups,
specifically water.
(d)
GenX™ is a Chemours trademark
name for a synthetic, short-chain organofluorine chemical compound,
the ammonium salt of hexafluoropropylene oxide dimer acid (HFPO-DA)
fluoride. It can also be used more informally to refer to the group
of related fluorochemicals that are used to produce GenX.
C.
Applicability.
(1)
The requirements of this section shall apply to all solar energy
systems permitted, installed, or modified in the Town of Batavia after
the effective date of this section, excluding general maintenance
and repair.
(2)
Solar energy systems constructed or installed prior to the effective
date of this section shall not be required to meet the requirements
of this section.
(3)
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 section.
(4)
All solar energy systems shall be designed, erected, and installed
in accordance with all applicable codes, regulations, and industry
standards as referenced in the NYS Uniform Fire Prevention and Building
Code ("Building Code"), the NYS Energy Conservation Code ("Energy
Code"), the NYS Property Maintenance Code and the Code of the Town
of Batavia.
D.
E.
Permitting requirements for Tier 1 solar energy systems. All Tier
1 solar energy systems shall be permitted in all zoning districts
and shall be exempt from site plan review under the local Zoning Code
or other land use regulation, subject to the following conditions
for each type of solar energy system:
(1)
Roof-mounted solar energy systems.
(a)
Roof-mounted solar energy systems shall incorporate, when feasible,
the following design requirements:
[1]
Solar panels on pitched roofs shall be mounted
with a maximum distance of eight inches between the roof surface and
the highest edge of the system.
[2]
Solar panels on pitched roofs shall be installed
parallel to the roof surface on which they are mounted or attached.
[3]
Solar panels on pitched roofs shall not extend
higher than the highest point of the roof surface on which they are
mounted or attached.
[4]
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.
(b)
Glare. All Solar panels shall have antireflective coating(s).
These coatings shall not contain per- polyflouoroalkyl (PFAS) substances
(including PFOA, PFOS and GenX chemicals) or other hazardous substances
(documentation of such to be provided with the application).
(c)
Height. Roof-mounted solar energy systems shall be subject to
the maximum height regulations specified for principal and accessory
buildings within the underlying zoning district.
(2)
Building-integrated solar energy systems shall be shown on the
plans submitted for the building permit application for the building
containing the system.
F.
Permitting requirements for Tier 2 solar energy systems. All Tier
2 solar energy systems shall be permitted in all zoning districts
as accessory structures and shall be exempt from site plan review
under the local Zoning Code or other land use regulations, subject
to the following conditions:
(1)
Glare. All solar panels shall have antireflective coating(s).
These coatings shall not contain per- polyflouoroalkyl (PFAS) substances
(including PFOA, PFOS and GenX chemicals) or other hazardous substances
(documentation of such to be provided with the application).
(2)
Setbacks. Tier 2 solar energy systems shall be subject to the
setback regulations specified for the accessory structures within
the underlying zoning district (but in no case should they be within
20 feet of a property line). All ground-mounted solar energy systems
shall only be installed in the side or rear yards in residential districts.
(3)
Height. Tier 2 solar energy systems shall be subject to the
height limitations specified for accessory structures within the underlying
zoning district (but in no case should be greater than 15 feet in
height).
(4)
Screening and visibility.
(a)
All Tier 2 solar energy systems shall have views minimized from
adjacent properties to the extent reasonably practicable as provided
by the Town of Batavia Planning Board.
(b)
Solar energy equipment shall be located in a manner to avoid
and/or minimize blockage of views from surrounding properties and
shading of property to the north, while still providing adequate solar
access.
(c)
Lot size. Tier 2 solar energy systems shall comply with the
existing lot size requirement specified for accessory structures within
the underlying zoning district.
G.
Permitting requirements for Tier 3 solar energy systems. All Tier
3 solar energy systems are permitted within the Agricultural Residential
Zoning District, subject to both the special use process and site
plan requirements set forth in this section and/or any other applicable
requirements of the existing Zoning Ordinance.
(1)
These Tier 3 units have the following restrictions. Within the
area denoted as the Genesee County Smart Growth areas, the total amount
(measured as the area leased or purchased) of solar arrays (Tier 3
and Tier 4) to be installed in this area shall be limited to 15% of
the total land area of the Smart Growth area within the Town. (The
Town will monitor this amount and provide any applicant with the existing
quantity of lands dedicated to solar within the Smart Growth boundary.)
If a solar energy system is proposed to be installed within the Ag
Production Zone, as illustrated in the Town's Comprehensive Plan
(Map 5), the applicant must limit impacts to prime or statewide important
farming soils as detailed in later sections of this section.
(2)
Applications for the installation of Tier 3 solar energy systems
shall be:
(a)
Application. Applications for special use permits shall be made,
in writing, on the appropriate form obtained from the Building Inspector.
Four hard copies of each application and an electronic copy, including
site plan, shall be submitted to the Building Inspector, who shall
review the application for completeness prior to forwarding it to
the Town Clerk and the Planning Board. One copy shall be retained
by the Building Inspector. Applicants will be advised of the completeness
of their application or any deficiencies that must be addressed prior
to substantive review.
(b)
Notice and public hearing. The Planning Board shall hold a public
hearing as part of the special use permit process. The public hearing
shall be held at a time fixed within 62 days from the date the application
for a special use permit is received by the Board, and public notice
thereof shall be published in a newspaper of general circulation in
the Town at least five days prior to the date of the hearing. At least
10 days before such hearing, the Planning Board shall mail a notice
of the hearing to the applicant and also send, by regular mail, a
copy of the notice of hearing to all Town of Batavia property owners
whose property(ies) is located within 250 feet of the property which
is the subject of the application when the property involved is located
in an R District or within 500 feet when the involved property is
located in any other district. The Town also requires signage to be
placed on the subject parcel notifying residents of the area that
the site is subject to an action before the Town. All signage shall
be installed in accordance with the Town of Batavia Sign Code.[3] When necessary, under § 239 of the General Municipal
Law, the Planning Board shall forward the site plan to the Genesee
County Planning Board for its review prior to taking any final action.
(c)
Upon closing of the public hearing, the 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 does not start to run until the SEQR process
is completed and may be extended upon consent by both the Planning
Board and applicant.
(3)
Underground requirements. 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.
The applicant shall provide copies of the written notification to
the utility for proposed interconnection.
(4)
Vehicular paths. Vehicular paths within the site shall be designed
to minimize the extent of impervious materials and soil compaction.
These access roads shall be designed as "limited use pervious access"
roads in accordance with NYSDEC standards and designed to handle appropriate
loads (emergency equipment) and will meet requirements of the Town's
emergency service providers.
(5)
Signage.
(a)
No signage or graphic content shall be displayed on the solar
energy systems except the manufacturer's name, equipment specification
information, safety information, and twenty-four-hour emergency contact
information. Said information shall be depicted within an area of
no more than eight square feet.
(b)
As required by the National Electrical Code (NEC), disconnect
and other emergency shutoff information shall be clearly displayed
on a light-reflective surface. A clearly visible warning sign concerning
voltage shall be placed at the base of all pad-mounted transformers
and substations.
(6)
Glare. All solar panels shall have antireflective coating(s).
These coatings shall not contain per- polyflouoroalkyl (PFAS) substances
(including PFOA, PFOS and GenX chemicals) or other hazardous substances
(documentation of such to be provided with the application).
(7)
Lighting. Lighting of the solar energy systems shall be limited
to that minimally required for safety and operational purposes and
shall be reasonably shielded and downcast from abutting properties.
(8)
Tree cutting. Removal of existing trees larger than six inches
in diameter should be minimized to the extent possible, as determined
by the Planning Board. Clearing limits shall be clearly shown on the
site plan, indicating where trees shall be removed.
(9)
Screening and landscaping. A Tier 3 solar energy system shall be screened from adjoining uses and any roadway. See Subsection G(15) for specific requirements.
(10)
Decommissioning.
(a)
Solar energy systems that have been abandoned and/or not producing
electricity for a period of one year shall be removed at the owner's
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
Code.
(b)
A decommissioning plan is required to ensure the proper removal
of a large-scale or utility-scale solar energy system. The decommissioning
plan is to be submitted as part of the special use permit application
to the Building Inspector for approval and must specify that after
the large-scale or utility-scale solar energy system is no longer
in use (as determined by the owner/operator or the Building Inspector
per this section), it shall be removed by the applicant or any subsequent
owner. The decommissioning plan shall identify the anticipated life
of the project. The plan shall demonstrate how the removal of all
infrastructure and restoration shall be conducted to return the parcel
to its original state prior to construction. (For projects located
on agricultural properties, the site shall be restored in accordance
with NYS Department of Agriculture and Markets — NYSDAM.) The
plan shall also include an expected time line for execution and a
cost estimate for decommissioning prepared by a professional engineer
or qualified contractor (and approved by the Town Engineer). Cost
estimates shall take inflation into consideration and be revised every
five years during operation of the system. (Recycle and salvage value
shall be excluded in these estimates as they are unpredictable in
nature.) Removal of the large-scale or utility-scale solar energy
system must be completed in accordance with the approved decommissioning
plan and the standards provided as follows:
[1]
All structures and foundations associated with
the large-scale or utility-scale solar energy systems shall be removed.
[2]
All disturbed ground surfaces shall be restored
to original conditions, including topsoil and seeding as necessary.
[3]
All electrical systems shall be properly disconnected,
and all cables and wiring buried shall be removed.
[4]
Prior to the conclusion of the special use permit
process, execution of a decommissioning agreement after approval by
the Town Attorney.
(c)
Security.
[1]
The deposit, executions, or filing with the Town
Clerk of cash, bond, or other form of security acceptable to the Town
Attorney 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 (except when the estimate is updated
in each fifth year). The decommissioning amount shall not be reduced
by the amount of the estimated salvage value of the solar energy system.
[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 section.
[4]
All decommissioning agreements and bonds shall
remain consistent with one another and in accordance with the Town
decommissioning standards.
[5]
No later than 30 days before the expiration date
of any required bonds: 1) the developer shall notify the Town Building
Department about the expiration date and provide a copy of the new
proposed bond to this Department, and 2) the developer shall require
the bonding company to directly provide to the Town Building Department
this thirty-day prior notice of expiration, as well as direct notice
of any early bond termination.
(11)
Noise. All solar projects shall not result in any adverse noise
impacts on any surrounding homes or other sensitive receptors (use
of NYSDEC regulations concerning noise). Specifically, the project
must be shown to not generate noise at 45 dBA or above at any nonparticipating
property line. A frequency study may be required to analyze any interference
effects.
(12)
Hazardous materials. The Tier 3 or 4 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 substances, such as PFAS.) Specific material data information/specifications
(SDS/MSDS sheets) shall be submitted on all components of the project.
The applicant must ensure that no harmful chemicals will be leaked
into the soils over the life of the project. For certain components
of the project, information on spill containment systems will need
to be provided. This required information shall be reviewed by the
Planning Board, their consultants and the Fire Department.
(13)
Airport impacts (encroachment issues). All Tier 3 or 4 solar
energy projects must complete a study to be submitted to the local
airport (when requested by the Town Planning Board) that discusses
the following:
(a)
Distance from installation.
(b)
Location relative to approach/departure and flight patterns
associated with the airport.
(c)
Glare impact on airport-sensitive receptors. Analysis should
include a knowledge of sun position, observer location, and the solar
module/array characteristics (e.g., tilt, azimuth or orientation,
location, extent and if tracking those parameters for the entire path
of the moving panels). Note: Though not required by the FAA, it is
strongly encouraged to utilize the Solar Glare Hazard Analysis Tool
(SGHAT) to predict potential glare with assessed results relative
to the FAA's policy and ocular hazard standard (also adopted
by the U.S. Department of Defense DoD) under Instruction (DODI) 4165.57
and implemented by US Air Force AFI 32-7063.
(d)
Any additional lighting of the field to include anticollision.
(e)
Stormwater runoff which may affect the airport or the tributaries
transitioning through the airport or the creation of storm ponds which
would attract wildlife and waterfowl.
(f)
Possible changes to wildlife habitat or migratory patterns that
will affect the aircraft flight path.
(14)
Site plan application. For any solar energy system requiring
a special use permit, site plan approval shall be required. Any site
plan application shall include the following information:
(a)
Property lines and physical features, including roads (ingress
and egress), for the project site.
(b)
Size and location of panels (setbacks to property lines and
adjoining residential structures).
(c)
Nature of land use on the existing property, adjacent properties,
nearby properties (as directed by the Town) and any solar energy systems
in or proposed in the surrounding area.
(d)
Existing conditions, including topography, vegetation, structures,
etc.
(e)
Proposed changes to the landscape of the site, grading, vegetation
clearing and planting, exterior lighting, and screening vegetation
or structures.
(f)
Proposed fencing (required) and type (fitting nature of the
area and National Electrical Code (NEC) requirements.
(g)
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 overcurrent devices.
(h)
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 a building permit.
(i)
Glare and reflectivity information.
(j)
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.
(k)
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.
(l)
Zoning district designation for the parcel(s) of land comprising
the project site.
(m)
Property operation and maintenance plan. Such plan shall describe
continuing photovoltaic maintenance and property upkeep, such as mowing
(describe frequency of mowing and any impacts to pollinator species
or bee colonies) and trimming (or other methodologies), maintenance
of access drives, maintenance of ditches or other waterways through
the site (potential emergency access easement provided to the Town),
and maintenance of the plantings for the required screening. This
operation and maintenance plan shall reflect all lands that are being
leased or owned by the applicant. The applicant shall use the guidelines
set forth by the Genesee County Soil and Conservation Department for
all plantings below a solar farm as requested by the Town of Batavia
Planning Board.
(n)
Fire safety plans shall be reviewed by the Building Department
and shall meet all applicable NYS Uniform Codes.
(o)
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 and Town Engineering office.
(p)
Other information requested by the Planning Board.
(q)
All engineering documents must be signed and sealed by a New
York State (NYS) licensed professional engineer or NYS registered
architect.
(15)
Special use permit standards.
(a)
Lot size. The property on which the Tier 3 solar energy system
is placed shall be on a lot of a size that allows for the project
to meet all setback and other requirements of this section.
(b)
Setbacks. The Tier 3 solar energy systems shall meet the following
setback requirements:
[1]
Be set back on all sides and rear from any nonparticipating
property line by 75 feet.
[2]
Be set back from any participating property line
by 20 feet.
[3]
Be set back from any adjoining, participating property
existing structure by 30 feet.
[4]
Be set back from any adjoining, nonparticipating
structure by 200 feet.
[5]
Be set back from front of property line by 200
feet.
(c)
Height. The Tier 3 solar energy systems shall be limited in
height to 15 feet.
(d)
Lot coverage.
[1]
The following components of a Tier 3 solar energy
system shall be used in the calculations for lot coverage requirements
within the fenced-in areas:
[a]
Foundation systems, typically consisting of driven
piles or monopoles or helical screws with or without small concrete
collars.
[b]
All mechanical equipment of the solar energy system,
including any pad-mounted structure for batteries, switchboard, transformers,
or storage cells.
[c]
Paved access roads servicing the solar energy system.
[2]
Lot coverage of the solar energy system, as defined
above, shall not exceed 50% of the total lot size.
(e)
Fencing requirements. All mechanical equipment, panels, and
structures shall be enclosed by a seven-foot-high fence, as required
by NEC, with a self-locking gate to prevent unauthorized access. Design
of the fencing shall fit into the area in which the project is proposed.
In some cases, accommodations for animal movement will be necessary.
(f)
Screening and visibility.
[1]
Solar energy systems shall have views minimized
from adjacent properties using architectural features, earthen berms,
landscaping, or other screening methods that will harmonize with the
character of the property and surrounding area.
[2]
Solar energy systems shall be required to complete
the following when directed by the Town of Batavia Planning Board.
[a]
Conduct a visual assessment of the visual impacts
of the solar energy system on public roadways and adjacent properties.
This analysis must consider conditions at day one of operation and
when the landscaping has matured. At a minimum, a line-of-sight profile
analysis shall be provided, but photo simulations are required for
all areas that will have a view of the project site. 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. The Town may hire
an independent consultant, at the cost of the applicant, to review
and/or conduct their own visual assessment.
[b]
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.
[c]
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, at a minimum, be comprised of evergreen/coniferous
trees (planted at recommended spacing for the type of tree), at least
eight to 10 feet high at the time of planting (depending on site conditions
and the result of the visualizations), and may need to be installed
in a zig-zag pattern to maximize screening, plus supplemental shrubs
(deer resistant) placed in between the evergreen trees at the reasonable
discretion of the Town Planning Board. These plantings are to be planted,
typically, within 10 linear feet of the solar energy system fencing
or as directed by the Planning Board to achieve maximum screening.
In some cases, existing vegetation located on participating properties
may be used to satisfy all or a portion of the required landscaped
screening. Suitable evergreen tree and shrub species are to be determined
by a professional arborist and approved by the Town. This minimum
screening requirement will be reduced if adjoining properties are
participating properties. All plantings shall come with a ten-year
guarantee and must be replaced if dead or diseased (include this in
operation and maintenance plan required in this code). This will be
enforced by the Town through the required yearly inspections. Berms
can also be utilized to reduce heights of proposed plantings, but
the berms must not interfere with site drainage and must be properly
designed to maintain vegetation. Landscape plans must be completed
by a NYS registered landscape architect.
[d]
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.
(g)
Agricultural resources. For projects located on agricultural
lands:
[1]
Any Tier 3 solar energy system located in the Town's
Ag Production Zone (as illustrated in the Town's Comprehensive
Plan) on lands that consist of prime farmland or farmland of statewide
importance shall not exceed (construct facilities on) 50% of the area
of prime farmlands or farmland soils of statewide importance on that
parcel.
[2]
Any Tier 3 solar energy system located on farmland
outside of the Ag Production Zone that consist of prime farmland or
farmland of statewide importance shall minimize the impact to these
important soils by avoiding those areas to the maximum extent practicable.
[3]
Tier 3 solar energy systems on lots containing
prime farmland or farmland of statewide importance shall be required
to seed a minimum of 20% of the total surface area of all solar panels
on the lot with native perennial vegetation designed to attract pollinators
in accordance with the plantings provided by the Genesee County Soil
and Conservation Department.
[4]
To the maximum extent practicable, Tier 3 solar
energy systems located on lots containing prime farmland or farmland
of statewide importance shall be constructed in accordance with the
construction requirements of the New York State Department of Agriculture
and Markets.
[5]
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.
[6]
To address the above requirements, the applicant
and Town shall consult with the Genesee County Soil Conservation Service.
If the project is located in or adjacent to a NYS certified agricultural
district, the NYS Department of Agriculture and Markets shall also
be contacted, and comments received and followed.
H.
Permitting requirements for Tier 4 solar energy systems.
(1)
All Tier 4 solar energy systems are permitted within the Agricultural
Residential Zoning District, subject to both the special use process
and site plan requirements set forth in this section and/or any other
applicable requirements of the existing Zoning Ordinance.
(a)
These systems may also be eligible for a solar energy system
PILOT and will require a host community agreement as determined by
the Town Board.
(b)
Tier 4 solar energy systems have all the same restrictions and
requirements as Tier 3 systems but with the following additional or
modified restrictions and requirements. These additional restrictions
and requirements are due to the potential significant impacts that
occur for these large-scale projects.
(c)
These Tier 4 systems are also restricted (not allowed) in the
Wellhead Protection Overlay Area.
(2)
Additional application and permitting requirements for Tier
4 solar energy systems:
(a)
All the information/requirements listed for a Tier 3 system
plus the following additional information/requirements.
(b)
Submittal of an agricultural impact statement to determine the
impact to agriculture in the Town and community. The Planning Board,
on a project-by-project basis, will work with the applicant on finalizing
the requirements of this agricultural impact statement, but at a minimum
will include whether the farmland is active (how long it has been
farmed or not farmed) and if it is farmed by the property owner or
leased. If leased, how the removal of this leased land will affect
the farmer who leases this site and other farmlands and other leases
that the farmer has in the Town. Include information on the improvements
that have been made to the lands (tilling, irrigation, etc.), history
of the farm and its products, number of workers, products purchased
and used for farming operations, etc.
(c)
Submittal of an economic impact analysis to determine the impact
of the project on the economy of the Town. This includes the agricultural
impacts in the Ag impact statement and information as noted by the
Town Planning Board (Town to work with the applicant on the scoping
of this study, but will include, at a minimum, the estimated PILOT
and HCA payments to the Town).
(d)
Proposal for a host community agreement (to be reviewed and
approved by the Town Board prior to any approvals granted by other
boards or agencies) that reflects the large-scale impacts of the project.
I.
Construction, maintenance, procedures, and fees.
(1)
Time limit on completion. After the granting of a special permit
of a Tier 3 or Tier 4 solar energy system with concurrent site plan
approval or site plan approval of a freestanding or ground-mounted
solar energy system by the Planning Board, the building permit shall
be obtained within six months and the project shall be completed within
12 months after the building permit has been issued. A six-month extension
to obtain a building permit or the completion time can be issued by
the Planning Board upon application by the applicant. If not constructed,
the special permit and/or site plan approval shall automatically lapse
within 12 months after the date of approval by the Planning Board
(unless an extension is granted).
(2)
For Tier 3 and 4 solar energy systems, the Town will require
appropriate insurances to be in place prior to construction beginning.
The Town shall provide these standards and requirements.
(3)
Inspections. Upon reasonable notice, the Town of Batavia Building
Inspector or his or her designee may enter a lot on which a solar
energy system has been approved for the purpose of compliance with
any requirements or conditions. Twenty-four hours' advance notice
by telephone or email to the owner/operator or designated contact
person shall be deemed reasonable notice. Furthermore, a Tier 3 (and
Tier 4) energy system shall be inspected annually by a New York State
licensed professional engineer that has been approved by the Town
or at any other time, upon a determination by the Town's Building
Inspector that damage may have occurred, and a copy of the inspection
report shall be submitted to the Town Building Inspector. Any fee
or expense associated with this inspection shall be borne entirely
by the permit holder.
(4)
General complaint process. During construction, the Town Building
Inspector can issue a stop order at any time for any violations of
a special permit or building permit. The permit holder of a Tier 3
or Tier 4 solar energy system shall establish a contact person, including
name and phone number, for receipt of any complaint concerning any
permit requirements.
(5)
Continued operation. A solar energy system shall be maintained
in operational condition at all times, subject to reasonable maintenance
and repair outages. Operational condition includes meeting all approval
requirements and conditions. Further, the Building Inspector shall
also have the right to request documentation from the owner for a
solar energy system regarding the system's usage at any time.
(6)
Removal. All solar energy systems shall be dismantled and removed
in accordance with the time approved by the Building Department from
a lot when the special permit or approval has been revoked by the
Town Planning Board or the solar energy system has been deemed inoperative
or abandoned by the Building Inspector in accordance with the decommissioning
and security sections of this section. If the owner does not dismantle
and remove said solar energy system as required, the Town Board may,
after a hearing at which the owner shall be given an opportunity to
be heard and present evidence, dismantle and remove said facility
in accordance with the decommissioning plan. If the owner fails to
act, the Town will act in accordance with the security requirements
of this section.
(7)
Determination of abandonment or inoperability. The Town Building Inspector shall have the authority to determine the abandonment or inoperability of a solar energy system. Written notice of this determination shall be served within 10 days upon the owner by personal service or by certified mail. Any appeal of the Building Inspector's determination must be made to the Zoning Board of Appeals pursuant to the terms and conditions set forth in § 235-62 of the Town Zoning Ordinance. The filing of an appeal does not stay the following time frame unless the Zoning Board of Appeals or a court of competent jurisdiction grants a stay or reverses said determination. At the earlier of the 366 days from the date of determination of abandonment or inoperability without reactivation or upon completion of dismantling and removal, any approvals for the solar energy system shall automatically expire.
(8)
Application and annual fees.
(a)
Tier 3 and Tier 4 solar energy systems. An applicant shall pay
an initial application fee in the amount as set by the Town Board,
upon filing its special permit and site plan application to cover
the cost of processing and reviewing the application. Per subsections
of this section, if the Planning Board needs to hire specialists/consultants
to review reports/materials submitted by the applicant, the Town will
charge the costs of these reviews to the applicant and may require
escrow monies to be deposited to cover such costs. If the project
is approved, the owner shall pay an annual fee in the amount as set
by the Town Board to cover the cost of processing and reviewing the
annual inspection reports and for administration, inspections, and
enforcement.
(b)
Applications for Tier 2 ground-mounted solar energy systems.
An applicant shall pay a review fee as determined from time to time
by the Town Board by resolution.
(c)
The Town of Batavia reserves the right, by local law, to provide
that no exemption pursuant to the provision of New York State Real
Property Tax Law (RPTL) § 487 shall be applicable within
its jurisdiction.
(9)
Prior to the issuance of a building permit, the applicant shall
document that all applicable federal, state, county, and local permits
have been obtained.
(10)
Upon completion of the construction of a Tier 3 or Tier 4 solar
energy system, the applicant shall provide a certification from a
NYS licensed engineer that the project has been constructed in accordance
with the approved plans, conditions of the SUP, and all applicable
NYS and federal regulations and laws.
(11)
Ownership changes. 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 so long as they are in full compliance
with this section and all the conditions and provided that the successor
owner or operator assumes, in writing, all of the obligations of the
special use permit, site plan approval, decommissioning plan and decommissioning
agreement. 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.
J.
Safety.
(1)
Solar energy systems and solar energy equipment shall be certified
under the applicable electrical and/or building codes as required.
(2)
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 and Tier 4 solar energy system is located in an
ambulance district, the local ambulance corps.
(3)
If storage batteries are included as part of the solar energy
system, they shall meet the requirements of any applicable 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 of Batavia
and any applicable federal, state, or county laws or regulations.
See the Town's Battery Energy Storage Law.
K.
Permit time frame and abandonment.
(1)
Upon cessation of electricity generation and consistent with
decommissioning regulations of a solar energy system on a continuous
basis for 12 months, the Town may notify and instruct the owner and/or
operator of the solar energy system to implement the decommissioning
plan. The decommissioning plan must be completed within 360 days of
notification.
(2)
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.
L.
Enforcement; penalties.
(1)
Any person, firm, corporation or entity which may violate any provisions of this section shall be guilty of a violation and, upon conviction thereof, shall be subject to the penalties set forth in § 235-65 of the Code of the Town of Batavia Zoning Ordinance. Any person, firm, corporation or entity which may violate any provisions of this section shall become liable to the Town for any actual expense or loss or damage occasioned by the Town by reason of such violation; in addition to any actual losses or damages sustained by the Town, such expense shall also include, but not be limited to, statutory costs, disbursements and reasonable attorney's fees in the event that an action is commenced to enforce this section. The imposition of penalties herein prescribed shall not preclude the Town or any person from instituting appropriate legal action or proceedings to prevent a violation of this section or to restrain or enjoin the use or occupancy of premises or any part thereof in violation of this section.
(2)
Upon at least seven days' prior written notice by mail
or email, the Town Building Inspector shall have the right, which
must be granted by the owner, to inspect a solar energy system, or
any part thereof, for the purposes of enforcement, compliance or determinations
required pursuant to this section.
M.
Severability. The invalidity or unenforceability of any section,
subsection, paragraph, sentence, clause, provision, or phrase of the
aforementioned subsections, 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.
