Town of Rush, NY Supplementary Regulations

The vehicles or trailers may not be parked within the space between the front lot line and the principal structure; and

The vehicles or trailers may not be parked within the space between the property line and any required side or rear setback line.

§ 120-58 Required off-street loading and unloading space.

On the same premises with every building or structure or part thereof hereafter erected and occupied for the purpose of business, trade or industry, there shall be provided and maintained adequate space for loading and unloading of vehicles off the street. Such space shall have access to a public street. Off-street loading and unloading space shall be in addition to and not considered as meeting a part of the requirements for off-street parking space. Off-street loading and unloading space shall not be used or designed, intended or constructed to be used in a manner to obstruct or interfere with the free use of any street, or adjoining property.

Off-street loading and unloading space shall be provided as set forth below at the time of erection of any building or structure and at the time any building or structure is enlarged or increased in capacity.

Retail business and service establishments: One off-street loading and unloading space at least 12 feet by 35 feet by 14 feet high for every 3,000 square feet of floor area or major portion thereof.

Warehouses and wholesale establishments: One off-street loading and unloading space at least 12 feet by 50 feet by 14 feet high, and one additional space for every 7,500 square feet of total floor area or part thereof.

Industrial plants: One off-street loading and unloading space at least 12 feet by 50 feet by 14 feet high, and one additional space for every 10,000 square feet of total floor area or part thereof.

§ 120-59 Clear sight triangle.

No obstruction to the view of traffic approaching a street intersection may be placed or permitted to remain within the triangle formed by the intersection highway rights-of-way and a line connecting points 75 feet from the intersection in the case of state and county roads and points 50 feet from the intersection in the case of other roads.

§ 120-60 Landscaped malls. [1]

As a condition to the issuance of a permit or any commercial use in a commercial district or any industrial use in an Industrial or Limited Industrial District, the owner shall construct a mall at least 20 feet in width, measured at right angles to the highway, immediately adjacent to the highway on which the land abuts, along the entire frontage of the property. Such mall shall have a concrete curb or similar structure at least one foot high, on each side of said mall. The owner shall plant such mall with grass or other plants for ground cover. A maximum of 25% of the frontage may be excluded from the mall for access drives.

Editor's Note: This section is derived, without substantive revision to the text, from original § 99-34B(4) and was moved to this location at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

§ 120-61 Accessory apartments.

[Added 9-10-2003 by L.L. No. 4-2003; amended 4-26-2023 by L.L. No. 4-2023]

Purpose. It is the purpose and intent of accessory apartments to provide one-family dwelling property owners the opportunity to maintain and preserve a single-family residence and at the same time, provide housing needs for relatives of families presently living within the Town of Rush or for person or persons in the domestic employ of the homeowner.

Bulk regulations.

Type of Residence Building	Minimum Required Gross Floor Area Per Family (square feet)
	R-20	R-30	RR-5	R-MD
One-family dwelling with accessory apartment	1,600	1,600	1,600	1,600
Accessory apartment	400	400	400	400
	but not to exceed 25% of the floor area of the principal dwelling and in total, not to exceed 800 square feet

Restrictions concerning accessory apartments.

Owner-occupied. The owners of the dwelling within which the accessory apartment is located shall occupy at least one of the dwelling units on the premises for at least nine months each year.

Location. The accessory apartment may be located either in the principal dwelling or in an addition to the principal dwelling. It may also be located in an accessory building, provided such accessory building existed prior to June 1, 2002, and otherwise conforms with the requirements of this chapter.

Dwelling size. No accessory apartment shall be located in a one-family dwelling unless the dwelling contains the minimum required habitable floor area of 1,600 square feet. This shall apply to new or existing one-family dwellings.

Apartment size. The minimum gross floor area for an accessory apartment within a principal dwelling or an existing accessory building shall be no less than 400 square feet and no greater than 800 square feet. An accessory apartment located in a principal dwelling shall not exceed 25% of said principal dwelling.

Lot size. Minimum lot size shall be one acre in an R-30 District; 3/4 acre in an R-20 District.

Bedrooms. There shall be no more than two bedrooms in any accessory apartment.

Accessory apartments per lot. There shall be no more than one accessory apartment permitted on any one-family building lot.

Exterior appearance. If an accessory apartment is located in the principal dwelling building, the entry to such unit and its design shall be such that, to the degree reasonably feasible, the appearance of the building will remain as a one-family residence. An additional road cut for a new driveway is prohibited. Second- and third-story stairs must be enclosed.

Water, sewer and utilities. Prior to the issuance of a building permit for the construction of an accessory apartment in a principal dwelling, an addition to the principal dwelling, or in an existing accessory building, approval of the water supply, sewage disposal, and electric and gas utilities shall be obtained from the Monroe County Department of Health, Monroe County Water Authority and any other appropriate utility company.

Off-street parking. In addition to the off-street parking requirements for one-family detached dwellings, there shall be a minimum of two off-street parking spaces for an accessory apartment.

(11)

Fire and building code. The construction and creation of an accessory apartment shall be in accordance with the rules and regulations of the fire and building codes for the Town of Rush and the State of New York.[1]

Editor's Note: See Ch. 36, Building Construction and Fire Prevention.

(12)

Special permit. An accessory apartment shall be permitted only on a one-family dwelling lot and is subject to the issuance of a special permit by the Planning Board pursuant to § 120-69D of this chapter.

(13)

Permit. No building permit shall be issued by the Town until approval for an accessory apartment has been given by the Planning Board and upon receipt of a notarized affidavit, a copy of which is attached, and made a part of the chapter, as Exhibit "A."[2]

§ 120-62 Uses prohibited in all districts; explicitly prohibited uses; prohibition against natural gas and/or petroleum extraction, exploration or production wastes.

Editor's Note: Said affidavit is on file in the Town offices.

(14)

Termination. If the homeowner vacates one of the dwelling units, or if the homeowner transfers title to the dwelling to a person other than a relative or domestic employee of the homeowner, the permit and the use of the accessory apartment as such shall be automatically terminated.

[Amended 8-28-2013 by L.L. No. 3-2013]

Explicitly prohibited uses.

The following uses and are hereby expressly and explicitly prohibited in each and every zoning district within the Town, and no building or structure shall be created, altered or erected, and no body of water, land or building thereon shall be used, for any of such uses or activities:

No use or activity or occupation shall be permitted in any district of the Town which causes odors, gases, fumes, vibrations, noise which is excessive in level or duration, excessive smoke, excessive light or any other objectionable effects which carry beyond the premises on which such uses, activities or occupations are conducted.

No effluent or matter of any kind shall be discharged onto land or into any stream or body of water which causes objectionable odors or fumes or which is poisonous or injurious to human or plant or animal life.

No use, activity or occupation is permitted which constitutes a public nuisance or hazard.

The use of bituminous or soft coal and other excessive smoke-producing fuels is prohibited in all district of the Town, except that the Board of Appeals may grant a special permit for such use on special application therefor and on such suitable terms and conditions as it may impose.

"Soil stripping" and the sale or disposition of topsoil so stripped from within the Town are prohibited.

The outside storage of junk vehicles, wrecks, appliances, rubbish or debris is prohibited in all districts. For purposes of this section, a junk vehicle shall be defined as a motor vehicle in such condition that it cannot be repaired or which has remained unrepaired for 30 days, or is, for any reason, unsuitable for use on the highway, or for which the registration for the current year has not been issued and affixed thereto. This chapter, however, shall not be construed to prevent the storage of unlicensed vehicles in private garages upon the premises of the owners thereof.

(g)

Land application facility;

(h)

Natural gas and/or petroleum exploration activities;

(i)

Natural gas and/or petroleum extraction activities;

(j)

Natural gas and/or petroleum extraction, exploration or production wastes disposal/storage facility;

(k)

Natural gas and/or petroleum extraction, exploration or production wastes dump;

(l)

Natural gas compression facility;

(m)

Natural gas processing facility;

(n)

Underground injection; and

(o)

Underground natural gas storage.

Any condition caused or permitted to exist in violation of Subsection A of this § 120-62 is a threat to public health, safety and welfare, and is hereby declared and deemed to be a nuisance. Collectively the above expressly prohibited uses may be referred to in this chapter as "explicitly prohibited uses," any one of the above expressly prohibited uses may be referred to in this chapter as an "explicitly prohibited use," and any combination of more than one such use may also be referred to as "explicitly prohibited uses."

Prohibition against natural gas and/or petroleum extraction, exploration or production wastes.

The Town of Rush hereby exercises its authority and right under New York Environmental Conservation Law § 27-0711 to adopt a local law that is consistent with the Environmental Conservation Law Article 27, such consistency demonstrated by the fact that this chapter complies "with at least the minimum applicable requirements" set forth in such statute, and the rules and regulations promulgated pursuant to said Article 27.

It shall be unlawful for any person to produce, store, inject, discard, discharge, dispose, release, or maintain, or to suffer, cause or permit to be produced, stored, injected, discarded, discharged, disposed, released, or maintained, anywhere within the Town, any natural gas and/or petroleum extraction, exploration or production wastes.

No Application to Customary Local Distribution Lines, Etc. The prohibitions set forth above in this § 120-62 are not intended, and shall not be construed, to:

Prevent or prohibit the right to use roadways in commerce or otherwise for travel;

Prevent or prohibit the transmission of natural gas through utility pipes, lines, or similar appurtenances for the limited purpose of supplying natural gas to residents of or buildings located in the Town; or

Prevent or prohibit the incidental or normal sale, storage, or use of lubricating oil, heating oil, gasoline, diesel fuel, kerosene, or propane in connection with legal agriculture, residential, business, commercial, and other uses within the Town.

§ 120-63 Nonconforming uses.

Any nonconforming use now lawfully existing may be continued only on the premises and in the structure where such nonconforming use now exists. Structures otherwise lawfully existing, arranged, designed or properly devoted to such nonconforming use may not be enlarged or extended at a cost to exceed 50% of the assessed valuation of such structures.

The failure to exercise any nonconforming use for a period of one year or more terminates such nonconforming use of the structure or the premises and thereafter such structure and the premises shall be used in conformity with this chapter.

A nonconforming use shall not be changed unless changed to a conforming use. A nonconforming use, if changed to a conforming use, may not be changed back to a nonconforming use.

Any structure containing a nonconforming use which has been wholly or partially destroyed by means other than intent or design may only be reconstructed or repaired, within one year thereafter, for the designated nonconforming use existing prior to the event. Such use may not be enlarged or extended.

§ 120-63.1 Preexisting, legal, nonconforming natural gas and/or petroleum extraction activities.

[Added 8-28-2013 by L.L. No. 3-2013]

Notwithstanding any provision of this chapter to the contrary, any natural gas and/or petroleum extraction activities that are being conducted in the Town as of the effective date of this section shall be subject to the following:

If, as of the effective date of this section, substantive natural gas and/or petroleum extraction activities are occurring in the Town, and those activities are in all respects being conducted in accordance with all applicable laws and regulations, including without limitation the possession of valid, nonrevoked permits for all matters for which permits are required, and including compliance with each, any, and all permit conditions, as are or may be required by the New York State Department of Environmental Conservation (DEC) and/or all other regulating local, state, and federal governments, bureaus, or agencies, then and only then such activity shall be considered a preexisting, nonconforming use and shall be allowed to continue, subject, however, to the provisions of Subsections B and C of this § 120-63.1.

ACCESSORY FACILITY OR STRUCTURE

Natural gas and/or petroleum extraction activities that are being conducted in the Town as of the effective date of this section and which do not qualify for treatment under the preceding Subsection A(1) of this § 120-63.1 shall not be grandfathered (or be permitted to continue or deemed lawful preexisting uses), and shall in all respects be prohibited as contemplated by § 120-62 hereof.

Upon the depletion, closing, or reclamation of any well which is allowed to remain in operation after the effective date of this section by virtue of Subsection A(1) of this § 120-63.1, or upon any other substantive cessation of natural gas and/or petroleum extraction activities for a period of more than 12 months, then and in either of such events the preexisting and/or nonconforming use status (and any related grandfathering rights) of or relating to such activity shall terminate, and thereafter such natural gas and/or petroleum extraction activities shall in all respects be prohibited as contemplated by § 120-62 hereof.

Notwithstanding any provision hereof to the contrary, the preexisting, nonconforming status conferred and recognized by Subsection A(1) of this § 120-63.1 is not intended, and shall not be construed, to authorize or grandfather any natural gas and/or petroleum extraction activities extending beyond whatever well bore is authorized in any DEC permit in existence as of the effective date of this section. Any expansion or attempted or purported expansion of such well, whether as to its production, depth, horizon(s) or otherwise, shall not be grandfathered under Subsection A(1) of this § 120-63.1, and instead shall in all respects be prohibited as contemplated by § 120-62 hereof.

§ 120-64 Telecommunications towers.

[Added 2-14-1997 by L.L. No. 1-1997; 4-9-1997 by L.L. No. 2-1997; amended 5-13-1998 by L.L. No. 1-1998]

Enabling authority. The Planning Board is hereby authorized to review and approve, approve with modifications, or disapprove special use permits and site plans for telecommunications towers or antennas consistent with Town Law §§ 274-a and 274-b.

[Amended 1-11-2023 by L.L. No. 3-2023]

Purpose. The purpose of these supplemental regulations is to promote the health, safety and general welfare of the residents of the Town of Rush, to provide standards for the safe provisions of telecommunications consistent with applicable federal and state regulations, and to protect the natural features and aesthetic character of the Town of Rush with special attention to open space, vistas, farmland, and wooded areas.

[Amended 1-11-2023 by L.L. No. 3-2023]

Definitions. As used in this section, the following terms shall have the meanings indicated:

[Amended 1-11-2023 by L.L. No. 3-2023]

An accessory facility or structure serving or being used in conjunction with a communications tower, and located on the same lot as the communications tower, including utility or transmission equipment, storage sheds or cabinets.

ANTENNA

A system of electrical conductors that transmit or receive radio frequency waves. Such waves shall include, but not be limited to, radio navigation, radio, television, cellular, paging, personal communications services, and microwave communications. The frequencies of these waves generally range from 10 hertz to 300,000 megahertz.

COMMUNICATIONS TOWER or TELECOMMUNICATIONS TOWER

A structure designed to support antennas and on which one or more transmitting and/or receiving antenna is located. It includes, without limit, freestanding towers, guyed towers, monopoles, and similar structures which use camouflage technology. It is a structure intended for transmitting and/or receiving radio, television, telephone, or microwave communications, but excluding those used for fire, police and other dispatch communications, or exclusively for private and personal radio and television reception and private and personal citizen's bands, amateur radio and other similar private and personal communications. As used herein, "communications tower" and "telecommunications tower" shall have the same meaning and may be used interchangeably.

ELIGIBLE FACILITIES REQUEST

A request for modification of an existing wireless tower or base station that involves a) co-location of new transmission equipment; b) removal of transmission equipment; or c) replacement of transmission equipment, as defined by 47 U.S.C.A. § 1455.

EPA

The Environmental Protection Agency.

FAA

The Federal Aviation Administration.

FCC

The Federal Communications Commission.

NIER

Nonionizing electromagnetic radiation.

SATELLITE ANTENNA

Any parabolic dish, antenna or other device or equipment of what ever nature or kind, the primary purpose of which is to receive television, radio, tight, microwave or other electronic signals, waves and/or communications from space satellites.

SPECIAL USE

A use which is deemed allowable within a given zoning district, but which is potentially incompatible with other uses and, therefore, is subject to special standards and conditions set forth for such use subject to approval by the Planning Board.

TELECOMMUNICATIONS

The transmission and reception of audio, video, data, and other information by wire, radio, light, and other electronic or electromagnetic systems.

Special use permit regulations.

Permit. No communications tower, transmission tower, telecommunications tower, communications or telecommunications installation, freestanding tower, pole or existing structure shall hereafter be used, installed, erected, moved, reconstructed, changed, modified or altered except after site plan review and approval in conformity with these regulations and unless a special permit is issued by the Planning Board in conformity with these regulations.

Location.

Applicants for telecommunications towers and/or accessory facilities or structures shall locate, erect and site said towers in accordance with the following priorities {Subsection D(2)(a)[1] being the highest priority and (2)(d)[4] being the lowest priority}:

On existing towers or structures;

In Limited Industrial Districts;

In Commercial Districts;

In Residential Districts.

Upon filing an application for a permit for such a tower and/or accessory facilities or structures, the applicant shall submit a report demonstrating the applicant's review of the above locations in order of priority demonstrating technologically the reason for the site selection. If the site selected is not the highest priority, then an explanation as to why sites of a higher priority were not selected should be included with the application.

Notwithstanding the above, the Planning Board may approve any site located within an area in the above list of priority areas if the alternative site provides reasonable services and meets the minimum needs of the service provider and the Board, in writing, finds it is in the best interest of the service provider and health, safety and welfare of the Town of Rush.

The applicant shall, in writing, identify and disclose the number and locations of any additional sites that the applicant is or will be considering, reviewing, or planning for telecommunications towers in the Town of Rush, and all towns adjacent to Rush, for a two-year period from the date of this application.

The applicant shall also, in writing, identify and disclose the number and locations of each site in the Town of Rush on which a telecommunications tower could provide, if installed on that site, service coverage of 80% of the total land area of the Town.

Shared use.

At all times, shared use of existing towers shall be required. Additionally, where such shared use is unavailable, location of antenna or preexisting structures shall be considered. An applicant shall be required to submit a detailed report inventorying existing towers within reasonable distance of the proposed site and outlining opportunities for shared use of existing facilities and use of other preexisting structures as an alternative to new construction.

An applicant intending to share use of an existing tower shall be required to document intent from an existing tower owner to share use. The applicant shall pay all reasonable fees and costs of adapting an existing tower or structure to a new shared use. Those costs include but are not limited to structural reinforcement, preventing transmission or receiver interference, additional site screening and other changes including real property acquisition or lease required to accommodate shared use.

In the case of new telecommunications towers, the applicant shall be required to submit a report demonstrating good faith efforts to secure shared use from existing towers. Written requests and responses for shared use shall be provided.

The applicant shall agree to design, build or modify the new telecommunications tower to accommodate up to two additional telecommunications services should there be a need or future need for such services. The scope of this analysis shall be determined by the Planning Board. This requirement may be waived, provided that the applicant demonstrates that the provisions of future shared usage of the facility is not feasible and an unnecessary burden, based upon:

The number of FCC licenses foreseeably available for the area;

The kind of tower site and structure proposed;

The number of existing and potential licenses without tower spaces/sites;

Available spaces on existing and approved towers; and

Potential significant adverse visual impact by a tower designed for shared use.

Height, maximum.

No telecommunications tower, including antenna thereon, shall exceed 199 feet in height above original grade level.

The applicant must also submit documentation justifying the height of any telecommunications tower and/or antenna. The maximum height of any tower with antenna shall not exceed a height which will require artificial lighting of any kind and nature in accordance with any Town, county, state and federal laws or regulations.

Visibility. Towers shall not be artificially lighted, including strobe lights, or marked except to assure human safety as required by the Federal Aviation Administration (FAA). Towers shall be a galvanized finish or painted an appropriate color to harmonize with the surroundings as approved by the Planning Board of the Town of Rush and maintained in accordance herewith. Towers should be designed and sited so as to avoid, whenever possible, application of FAA lighting and painting requirements.

Signage. Telecommunications towers shall have a sign no larger than two square feet to provide adequate notification to persons in the immediate area of the presence of an antenna that has transmitting capabilities. The sign shall also contain the name(s) and address(es) of the owner(s) and operator(s) of the antenna(s) as well as emergency phone number(s). No other signage, including advertising, shall be permitted on any antenna(s), antenna(s) supporting structure, monopole, antenna tower, telecommunications tower and/or accessory facilities or structures, unless required by federal or state laws or regulation.

Fence. All antenna, guy wires, monopoles, accessory facilities and structures, and telecommunications towers shall be enclosed by a fence not less than eight feet in height above ground level.

Public use. An area on the telecommunications towers shall be provided to the Town of Rush and/or Rush Fire Department without charge for location of emergency service communications equipment, and shall be installed by the applicant without charge to the Town of Rush or Rush Fire Department. If the tower is replaced or maintenance activities require the said equipment to be moved, removed, or modified, the applicant shall make these adjustments without cost to the Town of Rush or Rush Fire Department.

Setback. A telecommunications tower shall be located or sited a distance from all property lines, which distance is equal to the fall zone area of the tower plus the set back distance for the zoning district in which it is located, as measured from the base of the tower. The fall zone area of any tower or monopole shall be no less than 1 1/2 times the height of such tower, including antenna thereon, and shall be measured from both the nearest boundary line of the property on which it is to be located and from the location of any occupiable structure on such property. Notwithstanding the foregoing, the fall zone area may be less than prescribed herein if the applicant demonstrates by competent written evidence prepared and certified to the Town of Rush by the applicant's licensed professional engineer (including, but not limited to, by a licensed structural engineer) that the fall zone area may safely be less than prescribed herein.

Acreage. The lot size for a telecommunications facility shall not have a width and depth less than the fall zone area of the tower plus the setback distance for the zone in which it is located.

Site plan approval.

Approval. No telecommunications tower or antenna shall be installed or constructed until the site plan is reviewed and approved by the Planning Board. The site plan application shall include, in addition to the other requirements for site plan review under § 120-69 of this chapter, the following additional information: All applications for installation of a telecommunications tower or antenna shall be accompanied by a report containing the information hereinafter set forth and sealed by a duly authorized New York State licensed professional engineer:

Name(s) and address(es) of person(s) preparing the report;

Name(s) and address(es) of the property owner, operator, and applicant;

Postal address and block and lot or parcel number of the property;

Zoning district in which the property is situated;

Approximate size of the property and the approximate location of all lot lines;

Approximate location of nearest residential structure;

(g)

Approximate location of nearest occupiable structure;

(h)

Approximate location of all structures on the property which is the subject of the application;

(i)

Approximate location, size and height of all proposed and existing antennas and all appurtenant structures;

(j)

Type, size and location of all proposed and existing mitigating landscaping;

(k)

The number, type, and design of the tower and/or antenna(s) proposed and the basis for the calculations of tower and system capacity;

(l)

The make, model and manufacturer of the tower and/or antenna(s);

(m)

A description of the proposed tower and/or antenna(s) and all related fixtures, structures, appurtenances and apparatus, including height above grade, materials, color and lighting;

(n)

The frequency, modulations and class of service of radio equipment;

(o)

Transmission and maximum effective radiated power of the antenna(s);

(p)

Direction of maximum lobes and associated radiation of the antenna(s);

(q)

Applicant's proposed tower and antenna maintenance and inspection procedures and records systems;

(r)

Certification that NIER levels at the proposed site are within threshold levels adopted by the FCC;

(s)

Certification that the proposed tower and/or antenna(s) will not cause interference with existing communications devices;

(t)

Certification that the tower, antenna(s) and attachments meet all state and federal structural requirements for loads, wind, ice, fall down specifications, etc.

(u)

A written statement wherein the applicant agrees to defend and indemnify the Town of Rush and any of its servants, agents or employees from any and all claims made in connection with the installation, construction, use or operation of the telecommunications tower, antenna(s) and/or accessory facility;

(v)

A copy of its FCC license.

(w)

Certification that the applicant has utility status from New York State and the Public Service Commissioner.

The applicant shall submit a complete long form Environmental assessment form ("EAF") and a complete visual environmental assessment form ("visual EAF" addendum). The Planning Board may require submission of a more detailed visual analysis based on the results of the visual EAF.

The Board will require the applicant to undertake a visual impact assessment which may include:

A "zone of visibility map" shall be provided in order to determine locations where the tower may be seen.

Pictorial representations of "before and after" views from key viewpoints both inside and outside of the Town, including but not limited to, state highways, and other major roads, state and local parks, other public lands, 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. The Board shall determine the appropriate key sites at a presubmission conference with the applicant.

Assessment of the visual impact of the tower base, guy wires, accessory buildings from abutting properties and streets.

The Board may require, if there isn't any natural screening, native evergreen shrubs or trees capable of forming a continuous hedge at least 10 feet in height, at time of planting, to effectively screen the telecommunications tower base and accessory facility. In the case of poor soil conditions, planting may be required on soil berms to assure plant survival.

Additional regulations.

All towers, antenna(s) and accessory facilities shall be sited to have the least practical adverse visual effect on the environment and residences in the area of the telecommunications tower site.

Accessory facilities shall maximize use of building materials, colors and textures designed to blend with the natural surroundings.

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 use permit.

A road and parking plan will be provided and maintained by the applicant, including snow removal, to assure adequate emergency and service access. Maximum use of existing roads, public or private, shall be made. Road construction shall at all times minimize ground disturbance and vegetation cutting to within the toe of fill, the top of cuts, and no more than 10 feet beyond the proposed edge of any pavement. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion potential.

In the event a telecommunications tower and/or accessory facility is no longer used for the purpose specified in the application, or the telecommunications tower and/or accessory facility ceases operations for a period of 90 days, such tower, structures and facilities shall be dismantled and removed from the site within 90 days of receipt of written notice from the Town Board, and restoration of site to its original condition; provided, however, that if the owner of record of the property upon which the telecommunications tower is located, wishes to retain any access roadway to the telecommunications tower, the owner may do so with the approval of the Planning Board.

The applicant and the owner of record of the property upon which the telecommunications tower or antenna is located shall be required to execute and file with the Town of Rush a bond or other form of security acceptable to the Town Attorney and Town Financial Officer as to form and manner of execution, in an amount sufficient for the faithful performance of the terms and conditions of this chapter, the conditions of the permit or approval issued hereunder, for the observation of all Town local laws or ordinances, to cover the maintenance of the tower during its lifetime, provide for its removal and the restoration of the site, and for the Town's consultant as hereafter provided. The amount required shall be determined by the Planning Board. In the event of default upon the performance of such conditions or any of them, the bond or security shall be forfeited to the Town of Rush, which shall be entitled to maintain an action thereon. The bond or security shall remain in full force and effect until the removal of the transmission tower, telecommunications tower, communications installation, freestanding tower, accessory facility/structure, and site restoration. The failure to keep such bond or security in such full force and effect shall entitle the Town of Rush, acting by and through its Town Board, to revoke any permit and approval granted pursuant to the terms and conditions hereof, if the same is not fully cured or corrected within 15 days following the giving of notice by the Town of Rush to the applicant and to the owner of record of such failure.

Telecommunications towers shall be grounded so as to protect person and property and shall be installed with surge protectors, and the applicant shall provide written certification of same.

The Planning Board is authorized to hire any consultants and/or experts necessary to assist the Board in reviewing and evaluating the application. The applicant shall reimburse the Town of Rush for all costs and expenses incurred by the Town of Rush for the consultants/experts evaluation and consultation with the Board. The applicant will provide for such reimbursement in the bond or security to be executed and filed with the Town of Rush as hereinbefore provided. Notice of the hiring of a consultant/expert shall be given to the applicant prior thereto.

Prior to the approval of any application for a telecommunications tower site, a public hearing shall be held by the Planning Board, notice of which shall be published in the official newspaper for the Town of Rush.

The applicant, its successors or assigns, shall file annually with the Town, on the anniversary date of the granting of the special permit by the Planning Board a written report by a duly qualified independent consultant certifying that the applicant, its successors or assigns are complying with its maintenance and inspection procedures and records system, and that the telecommunications tower and accessory facilities or structures is not a hazard or a threat of a hazard to the health and safety of the public.

(11)

In order to keep neighboring municipalities informed, and to facilitate the possibility of directing that an existing tall structure or existing telecommunications tower in a neighboring municipality be considered for shared use, the Board shall require that the applicant provide an intermunicipal notification for new towers as follows:

An applicant who proposes a new telecommunications tower in the Town of Rush shall notify in writing the legislative body of each municipality that borders the Town of Rush and the Monroe County Planning Board. Notification shall include the exact location of the proposed tower, and a general description of the project including, but not limited to, the height of the tower, including antenna thereon, and its capacity for future shared use.

Documentation of this notification shall be submitted to the Board at the time of application.

(12)

All communications cable and utilities, including water, gas, electric, sewer, stormwater leading to and away from any new telecommunications tower shall be installed underground and in compliance with all the laws, rules and regulations of the Town.

Conflict. Where these regulations conflict with other Town of Rush laws and regulations, the more restrictive shall apply, except for telecommunications tower height restrictions which are governed by these regulations.

Exceptions. The following are excepted from the provisions of this section:

[Amended 1-11-2023 by L.L. No. 3-2023]

Satellite antennas used exclusively for private and personal use and situated on residential property.

Conventional television and radio antennas when used exclusively for private benefit and attached to a dwelling less than 35 feet above existing grade.

Currently approved uses existing prior to the effective date of these regulations.

The repair and maintenance of existing communications towers and antennas.

Fire, police and other governmental dispatch communications.

Private and personal citizen's bands, amateur radio and other similar private and personal communications.

BUILDING-INTEGRATED PHOTOVOLTAIC SYSTEM

Eligible facilities requests, as defined by 47 U.S.C.A. § 1455, are exempt from requirements that they obtain site plan and/or special permit approval from the Rush Planning Board. All eligible facilities requests will still require a building permit and are to be made to the Building Inspector. Before granting the building permit, the Building Inspector shall, in conjunction with the Town Engineer, review the request to ensure that it constitutes an eligible facilities request.

§ 120-64.1 Solar energy systems.

[Added 3-27-2019 by L.L. No. 1-2019; amended 10-25-2019 by L.L. No. 4-2019]

Purpose. The purpose of this section is to provide for the location, regulation and processing of applications for solar energy systems within the Town of Rush. The intent is to both encourage the use of renewable energy systems based on sunlight while at the same time protecting the health, safety and general welfare of the residents of the Town of Rush. The protection of residential properties, agricultural land, and the rural character of the Town are all of primary importance. These regulations provide standards for the safe provisions of solar energy systems in order to protect the natural and aesthetic character of the Town of Rush with special attention to open space, vistas, farmland, and neighboring property owners. The Town has identified the use of overlay districts as a technique to designate the most appropriate locations for the creation of Tier 3 solar energy systems while at the same time implementing standards and safeguards necessary to ensure protection of the Town, including residential properties and agricultural land, and that such development is compatible with the surroundings and with the character of the Town. Subject to the requirements set forth in this section, the purpose of this section is to permit appropriately sized Tier 3 solar energy systems in certain areas of the Town and also protect certain residential districts and/or hamlets located in the Town of Rush that contain more concentrated residential areas, thereby limiting the cumulative impact of installed Tier 3 solar energy systems in the Town of Rush.

Enabling authority. The regulations contained in this section have been adopted pursuant to New York Town Law §§ 261 through 263, New York State Municipal Home Rule Law § 10, Subdivision 1(ii)a(12), and Article IX, §§ 1(a) and 2(c), of the New York State Constitution, and are made in accordance with the Town of Rush Comprehensive Plan 2010 for the development of the Town of Rush. The Planning Board is hereby authorized to review and approve, approve with modifications, or disapprove site plans for solar energy systems pursuant to the criteria set forth herein.

Definitions. As used in this section, the following terms shall have the meanings indicated:

A combination of photovoltaic building components integrated into any building envelope system, such as vertical facades, including glass and other facade material, semitransparent skylight system, roofing materials and shading over windows.

GLARE

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.

GROUND-MOUNTED SOLAR ENERGY SYSTEM

A solar energy system that is anchored to the ground via a pole or other mounting system, detached from any other structure, which generates electricity for on-site or off-site consumption.

ROOF-MOUNTED SOLAR ENERGY SYSTEM

A series of solar panels located on the roof of any legally permitted building and/or structure for the purpose of producing electricity for on-site and/or off-site consumption.

SOLAR ACCESS

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.

SOLAR ENERGY EQUIPMENT

Electrical energy storage devices, material, hardware, inverters and/or other electrical equipment and conduit of photovoltaic devices associated with the production of electrical energy.

SOLAR ENERGY SYSTEM

An electrical generating system comprised of 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 fencing and 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, or Tier 3 solar energy system as follows.

Tier 1 solar energy systems include the following:

Roof-mounted solar energy systems.

Building-integrated solar energy systems.

Tier 2 solar energy systems include ground-mounted solar energy systems with system capacity up to 25 kW AC and that generate no more than 110% of the electricity consumed on the site over the previous 12 months.

Tier 3 solar energy systems are systems that are not included in the list for Tier 1 and Tier 2 solar energy systems.

SOLAR PANEL

A photovoltaic device capable of collecting and converting solar energy into electrical energy.

STORAGE BATTERY

A device that stores energy and makes it available in an electrical form.

Applicability.

The requirements of this section shall apply to all solar energy systems installed or modified after its effective date.

Any proposed Tier 3 solar energy system subject to review by the New York Board on Electric Generation and Siting and the Environment pursuant to Article 10 of the New York State Public Service Law shall be subject to all substantive provisions of this section and the Town Code of the Town of Rush.

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"), and the Town of Rush Code.

General requirements.

A building permit shall be required for installation of all solar energy systems. All proposed ground-bounded foundations for ground-mounted solar energy systems shall require evaluation and approval by the Town Engineer.

Local land use boards are encouraged to condition their approval of proposed developments on sites adjacent to solar energy systems so as to protect their access to sufficient sunlight to remain economically feasible over time.

The creation of a Solar Energy Systems Overlay District by the Town Board, and/or issuance of special permits and site plan approvals by the Planning Board, shall include review pursuant to the State Environmental Quality Review Act ECL Article 8 and its implementing regulations at 6 NYCRR Part 617 ("SEQRA").

Permitting requirements for Tier 1 solar energy systems.

Roof-mounted solar energy systems and building-integrated photovoltaic systems that use the electricity on-site or off-site only for net-metering purposes are permitted as an accessory use in all zoning districts when attached to any lawfully permitted building or structure.

Height. Roof-mounted solar energy systems shall not exceed the maximum height restrictions of the zoning district within which they are located.

Aesthetics. Roof-mounted solar energy system installations shall incorporate, when feasible, the following design requirements:

Solar panels on pitched roofs shall be installed at the same angle as the roof's surface with a maximum distance of eight inches between the roof and highest edge of the system.

Solar panels on pitched roofs shall be installed parallel to the roof surface on which they are mounted or attached.

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.

Glare: All solar panels shall have antireflective coating(s) to reduce glare to the maximum extent practicable.

Building-integrated solar energy systems shall be shown on the plans submitted for the building permit application for the building containing the system.

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:

Setback. Ground-mounted solar energy systems shall adhere to the setback requirements for accessory structures in the zoning district within which they are located.

Height. Tier 2 solar energy systems shall be subject to have a maximum height of eight feet.

All Tier 2 solar energy systems in residential districts shall be installed in the rear yards. Tier 2 solar energy systems may not be located between the front lot line and the rear line of the principal structure.

Glare: All solar panels shall have antireflective coating(s) to reduce glare to the maximum extent practicable.

Lot Size: Tier 2 solar energy systems shall comply with the existing lot size requirement specified for accessory structures within the underlying zoning district.

Screening and visibility.

All Tier 2 solar energy systems shall have views minimized from adjacent properties to the extent reasonably practicable.

Solar energy equipment shall be located in a manner to reasonably avoid and/or minimize blockage of views from surrounding properties and shading of property to the north, while still providing adequate solar access. A landscape buffer shall be provided around the Tier 2 energy system and solar panels to provide screening from adjacent properties and public rights-of-way.

(g)

Tier 2 solar energy systems that have been abandoned and/or not producing electricity for a period of six months shall be removed by the property owner at the property owner's expense.

Permitting requirements for Tier 3 solar energy systems.

Tier 3 solar energy systems are permitted through the creation of a Solar Energy Systems Overlay District by the Town Board, and through the issuance of special permit and site plan approval by the Planning Board, and subject to the requirements set forth in this section.

Escrow agreement. Subject to the requirements contained in § 100-21 of the Code of the Town of Rush, the Town shall require the applicant seeking to develop any Tier 3 solar energy systems to fund an escrow agreement or to sign a developer's agreement to cover the Town's estimated costs and expenses of review, including reasonable legal and engineering fees.

Acreage limitations for Tier 3 solar energy systems.

Tier 3 solar energy systems shall not collectively occupy no more than a total of 150 acres in the Town of Rush; and

There is a minimum of 20 acres and a maximum of 50 acres for a single Tier 3 solar energy system.

Location. Tier 3 solar energy systems may not be located in or within 1,000 feet of R-20, R-MH, RR-5 or R-TH Zoning Districts in the Town of Rush. Except in a Solar Energy Systems Overlay District created by the Town Board pursuant to this section, Tier 3 solar energy systems are prohibited as a principal or accessory use in all underlying zoning districts in the Town. Notwithstanding the foregoing, any principal or accessory use permitted in the underlying zoning district shall also be permitted in the Solar Energy Systems Overlay District. Tier 3 solar energy systems shall not be located within the following areas of potential sensitivity: i) 100-year flood hazard zones considered an AE Zone on the FEMA Flood Maps; and ii) properties included on the New York State or National Register of Historic Places, or otherwise identified as, or eligible for inclusion as, historic and/or culturally significant resources by the New York State Historic Preservation Office. Significant archeological resources shall be protected and preserved. Any mitigation measures proposed as part of the development of a Tier 3 solar energy system shall be undertaken in consultation with the New York State Historic Preservation Office or other similar historic preservation authority.

Height. Tier 3 solar energy systems shall be no more than 12 feet in height.

Setback. Tier 3 solar energy systems shall adhere to the setback requirements of 200 feet from all property lines.

Fencing requirements. All mechanical equipment, including any structure for storage batteries, shall be enclosed by a seven-foot-high fence, as required by NEC, with a self-locking gate to prevent unauthorized access.

Lot coverage. A Tier 3 solar energy system shall not exceed 50% of the lot on which it is installed. The surface area covered by solar panels shall be included in total lot coverage.

Tier 3 solar energy systems shall, to the extent practicable, be designed in such a way as to allow agricultural use of the soil after the system is decommissioned and implement the "Guidelines for Agricultural Mitigation for Solar Energy Projects" issued by the New York State Department of Agriculture and Markets for any solar energy system which is to be located on or adjacent to property being actively used for agricultural purposes.

A landscape buffer shall be provided around the Tier 3 energy system to provide screening from adjacent properties. The Tier 3 solar energy system shall be completely screened from any adjacent property. To accomplish this screening, existing vegetation shall be utilized to the fullest extent practicable and/or at least two rows of native evergreen trees or other screening acceptable to the Planning Board which is capable of forming a continuous hedge at least 14 feet in height at planting shall be required and maintained. A two-year warranty shall be provided for any screening installed as part of the Tier 3 energy system. The minimum screening requirement may be waived if the Planning Board determines that some other suitable vegetation or feature already exists to achieve complete screening.

(11)

Removal of trees and other existing vegetation shall be minimized or offset with planting elsewhere on the property. Tier 3 solar energy systems shall require the preparation of a vegetation management plan that includes the planting and/or protection of pollinators and perennial vegetation. Clear-cutting of trees beyond what is deemed necessary by the Planning Board to install and maintain the Tier 3 solar energy systems shall be prohibited.

(12)

Roadways within the site shall not be constructed of impervious materials and shall be designed to minimize the extent of roadways constructed and soil compaction.

(13)

All on-site utility and transmission lines shall, to the extent feasible, be placed underground.

(14)

Glare. All solar panels shall have antireflective coating(s) to reduce glare to the maximum extent practicable.

(15)

Signage.

No signage or graphic content shall be displayed on the solar energy systems except the manufacturer's name, equipment specification information, safety information, and twenty-four-hour emergency contact information. Said information shall be depicted within an area no more than eight square feet.

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.

(16)

Lighting. Lighting of the solar energy systems shall be limited to that minimally required for safety and shall comply with the requirements of Chapter 120, Article IV (Outdoor Lighting), of the Town Zoning Law.

(17)

Decommissioning.

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 of Rush as set forth in Subsection J(2) herein.

A decommissioning plan (see Appendix 1[1]) signed by the owner, and containing the following, in addition to any such other terms and conditions as may be required by the Town of Rush:

The cost of removing the solar energy system.

The time required to decommission and remove the solar energy system and any ancillary structures.

The time required to repair any damage caused to the property by the installation and removal of the solar energy system.

Editor's Note: The example decommissioning plan is included as an attachment to this chapter.

Security.

The deposit, executions, or filing with the Town of Rush Clerk of cash, bond, letter of credit, or other form of security reasonably acceptable to the Town of Rush Attorney and/or Engineer shall be in an amount sufficient to ensure the good-faith performance of the terms and conditions of the permit issued pursuant hereto, or any Certificate of Environmental Compatibility and Public Need issued by the Siting Board, and shall also be sufficient to provide for the removal of all components of the solar energy system and restoration of the site subsequent to removal. The amount of the security shall be 125% of the cost of the removal of the Tier 3 solar energy system and restoration of the property with an escalator of 2% annually for the life of the solar energy system. The decommissioning amount shall be reduced by the amount of the estimated salvage value of the solar energy system.

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 of Rush, which shall be entitled to maintain an action thereon. The cash deposit, amount due under the letter of credit, bond, or security shall remain in full force and effect until restoration of the property as set forth in the decommissioning plan is completed.

In the event of default or abandonment of the solar energy system, the system shall be decommissioned as set forth in Subsection J(2) and (3).

(18)

Creation of Solar Energy Systems Overlay District. The purpose of the Solar Energy Systems Overlay District is to accommodate Tier 3 solar energy systems in appropriate locations within the Town. The process necessary to create a Solar Energy Systems Overlay District shall be as follows:

Application. Any application for the creation of a Solar Energy Systems Overlay District shall be submitted to the Town Board and contain the following information:

A site development plan, drawn to scale, prepared by a licensed engineer or architect, which graphically depicts proposed improvements to the property, including: topographical features, system footprints, travelways, access locations, drainage facilities, lighting, landscaping, buffering, fencing, and signs. Said concept site plan shall also depict existing improvements and contain all information required by § 120-69D(2) of the Town Zoning Law.

A completed Full Environmental Assessment Form.

Proof of ownership of the land proposed for creation of the overlay district.

A description of the property, including a metes and bounds description of the parcel.

Referral to Planning Board. The Town Board shall refer the application to the Planning Board for review, which shall review the site development plan and render its recommendations to the Town Board. The Planning Board may recommend approval, disapproval or conditional approval subject to modification(s) being made to the special permit application. The Planning Board shall report its recommendation(s) to the Town Board within 30 days of the referral by the Town Board, which time period may be extended for an additional 30 days at the request of the Planning Board. In reviewing the application and making its recommendations, the Planning Board shall consider the following factors:

Whether the proposal meets the Town zoning and planning goals for the area in question;

The need for the proposed use in the proposed location;

The existing character of the neighborhood in which the use would be located;

The safeguards provided to minimize possible detrimental effects of the proposed use on adjacent property;

Whether the proposal meets the intent and objectives of this section; and

[6]

Whether the proposal is conceptually sound and conforms to accepted design principals.

General Municipal Law § 239-m. Applications for the creation of a Solar Energy Systems Overlay District shall be referred to the Monroe County Planning Department in accordance with § 239-m of the General Municipal Law.

Public hearing. The Town Board shall conduct a public hearing on the Solar Energy Systems Overlay District application and site development plan.

Subject to the requirements of SEQRA, the Town Board shall consider the recommendations of Planning Board and render its decision by written resolution on the application, also taking into account the following additional factors:

Location, arrangement and appearance of the solar energy system;

Adequacy, type and arrangement of screening/landscaping constituting a visual buffer between adjacent uses and adjoining lands;

Location and adequacy of open space;

Projection of adjacent properties against glare, unsightliness, or other objectionable features; and

Compliance with SEQRA.

Zoning for Solar Energy Systems Overlay District. If the Town Board approves the application, the Town Board shall amend the Zoning Map of the Town of Rush to establish and define the boundaries of the Solar Energy Systems Overlay District.

(19)

Special permit approval required.

Tier 3 solar energy systems shall be required to obtain special permit approval from the Town Planning Board pursuant to § 120-69D of the Town Zoning Law, which shall be consistent with the site development plan approved by the Town Board as part of the creation of the Solar Energy Systems Overlay District.

(20)

Site plan approval required.

Tier 3 solar energy systems shall be required to obtain site plan approval from the Town Planning Board, which shall be consistent with the site development plan approved by the Town Board as part of the creation of the Solar Energy Systems Overlay District.

The site plan application and its requirements for obtaining site plan approval (§ 120-69B of the Town Zoning Law) shall be supplemented by the following additional provisions:

If the property of the proposed project is to be leased, legal consent between all parties, specifying the uses(s) of the land for the duration of the project, including easements and other agreements, shall be submitted.

Property lines and physical features, including roads, for the project site.

Proposed changes to the landscape of the site, grading, vegetation clearing and planting, exterior lighting, and screening vegetation or structures.

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.

The equipment specification sheets shall be documented and submitted for all solar panels, significant components, mounting systems, and inverters that are to be installed.

[6]

Commissioning, property operation and maintenance plan. Such a plan shall describe the commissioning of the Tier 3 solar energy systems, continuing photovoltaic and battery maintenance, and property upkeep, such as mowing and trimming.

[7]

Erosion and stormwater management plan. Such a plan shall provide for erosion control measures and stormwater management subject to the requirements of §§ A125-8, A125-9, and A125-10.

[8]

Detailed plans and specifications for any proposed fencing to be installed, including but not limited to the location(s), height and type of fencing material(s) to be installed. Such plans shall ensure perimeter security and safety for any and all beings.

[9]

Prior to the issuance of the building permit or final approved by the Planning Board, but not required as part of the application, engineering documents must be signed and sealed by a New York State (NYS) licensed professional engineer or NYS registered architect.

(21)

Ownership changes. If the owner or operator of the Tier 3 solar energy system changes or the owner of the property changes, the successor owner and/or operator shall assume in writing all of the obligations of the Solar Energy Systems Overlay District, site plan approval, and decommissioning plan. A new owner or operator of the Tier 3 solar energy system shall notify the Code Enforcement Officer of such change in ownership or operator within 30 days of the ownership change.

Safety.

Solar energy systems and solar energy equipment shall be certified under the applicable electrical and/or building codes as required.

Solar energy systems shall be maintained in good working order and in accordance with industry standards. Site access shall be maintained, including snow removal at a level acceptable to the local Fire Department and, if the Tier 3 solar energy system is located in an ambulance district, the local ambulance corps.

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, and applicable federal, state or county laws or regulations, when in use and, when no longer used, shall be disposed in accordance with the laws and regulations of the Town of Rush and any applicable federal, state, or county laws or regulations.

Permit time frame and abandonment.

The special permit and site plan approval for a solar energy system shall be valid for a period of 18 months, provided that a building permit is issued for construction or construction is commenced. In the event construction is not completed in accordance with the final site plan, as may have been amended and approved, as required by the Planning Board, within 18 months after approval, the applicant or the Town of Rush may extend the time to complete the construction for 180 days. If the owner and/or operator fails to perform substantial construction after 24 months, the approvals shall expire.

Upon cessation of electricity generation of a Tier 3 solar energy system on a continuous basis for 12 months, the Town of Rush shall notify and instruct the owner and/or operator of the Tier 3 solar energy system to implement the decommissioning plan. The decommissioning plan must be completed within 360 days of notification.

If the owner and/or operator fails to comply with decommissioning upon any abandonment, the Town of Rush 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.

Complaints. The Town Board may set up a procedure for filing and handling of complaints regarding the operation of Tier 3 solar energy systems.

Effect on other laws. To the extent that any law, ordinance, rule or regulation, or parts thereof, are in conflict with the provisions of this section (including all provisions of the Code concerning subdivision or site plan applications, and applications to the Zoning Board of Appeals), this section shall control.

Enforcement. Any violation of this section shall be subject to the same civil and criminal penalties as provided for in the zoning regulations of the Town of Rush.

Severability. If any provision of this section shall be adjudged by any court of competent jurisdiction to be invalid, such adjudication shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the particular provision directly involved in the controversy in which such judgment shall have been rendered.

§ 120-64.2 Battery energy storage systems.

[Added 10-12-2022 by L.L. No. 7-2022]

Legislative intent. The Rush Town Board finds and hereby determines that regulating battery energy storage systems will provide for and protect the public safety, welfare, health and well-being of the persons and property in the Town of Rush. This section is adopted to advance and protect the public health, safety, welfare, and quality of life of Town residents by creating regulations for the installation and use of battery energy storage systems, with the following objectives:

To provide a regulatory scheme for the designation of properties suitable for the location, construction and operation of battery energy storage systems;

To ensure compatible land uses in the vicinity of the areas affected by battery energy storage systems;

BATTERY ENERGY STORAGE SYSTEM

To mitigate the impacts of battery energy storage systems on environmental resources such as important agricultural lands, forests, wildlife and other protected resources; and

Definitions. The following definitions shall apply to this section.

BATTERY(IES)

A single cell or a group of cells connected together electrically in series, in parallel, or a combination of both, which can charge, discharge, and store energy electrochemically. For the purposes of this section, batteries utilized in consumer products are excluded from these requirements.

A rechargeable energy storage system consisting of one or more devices, assembled together, including batteries, battery chargers, controls, power conditioning systems and associated electrical equipment assembled together, capable of storing energy in order to provide electrical energy at a future time, not to include a stand-alone twelve-volt car battery or an electric motor vehicle.

CELL

The basic electrochemical unit, characterized by an anode and a cathode, used to receive, store, and deliver electrical energy.

LARGE-SCALE BATTERY ENERGY STORAGE SYSTEM INSTALLATION(S)

Any installation of a battery energy storage system having an aggregate energy capacity of 600 kWh or more, consisting of electrochemical storage batteries or similar technology, battery chargers, controls, power conditioning systems, inverters, transformers, switchgears and associated electrical equipment designed to store electrical power received from a generating or transmission source and periodically discharging power from the battery energy storage system into the power grid for off-site consumption.

SMALL-SCALE BATTERY ENERGY STORAGE SYSTEMS

A battery energy storage system having an aggregate energy capacity of less than 600 kWh, typically used to provide standby or emergency power and/or an uninterruptable power supply, load shedding, load sharing, or similar capabilities relating to the energy consumed on site by a residence, farm operation or other business.

Zoning districts where allowed. Battery energy storage systems shall be allowed as follows:

Small-scale battery energy storage systems are allowed as accessory uses in all zoning districts upon issuance of a building permit and battery energy storage system permit from the Code Enforcement Officer.

Additionally, small-scale battery energy storage systems for business or farm operations, to the extent that the same require modification to the existing site of such business or farm, shall be subject to site plan review pursuant to § 120-69.

Any application under this section that requires site plan review shall meet substantive site plan requirements in § 120-69 that, in the judgment of the Planning Board, are applicable to the small-scale battery energy storage system being proposed.

Compliance with regulatory agencies. The applicant is required to obtain all necessary regulatory approvals and permits from all federal, state, county and local agencies having jurisdiction and approval powers related to the completion of small-scale battery energy storage systems.

Large-scale battery energy storage system installation shall not be permitted in any zoning district within the Town.

General regulations. The placement, construction and major modification of any permitted battery energy storage system within the Town shall be permitted only as follows:

Issuance of permits and approvals by the Planning Board shall include review pursuant to the State Environmental Quality Review Act ("SEQRA").

Any inconsistent provisions of the Town Code which purport to or may be interpreted to allow battery energy storage system (or similar technology as a permitted primary or accessory use) are hereby superseded.

Battery energy storage systems constructed or installed prior to the effective date of this section shall not be required to meet the requirements of this section. Routine maintenance (including replacement with a new system of like construction and size) shall be permitted on such existing systems. New construction other than routine maintenance on preexisting systems shall comply with the requirements of this section.

All new permitted battery energy storage systems and all additions and modifications to any preexisting battery energy storage systems shall be designed, erected and installed in accordance with all applicable codes, regulations and industry standards as referenced in the Uniform Code, the Energy Code and all local laws, codes, rules and regulations of the Town.

Any applications (including variance applications) pending for battery energy storage systems on the effective date of this section shall be subject to the provisions of this section.

Safety.

System certification. Battery energy storage systems and equipment shall be listed by a nationally recognized testing laboratory to UL 9540 (Standard for battery energy storage systems and equipment) or approved equivalent, with subcomponents meeting each of the following standards as applicable:

UL 1973 (Standard for Batteries for Use in Stationary, Vehicle Auxiliary Power and Light Electric Rail Applications),

UL 1642 (Standard for Lithium Batteries),

UL 1741 or UL 62109 (Inverters and Power Converters),

Certified under the applicable electrical, building, and fire prevention codes as required.

Alternatively, field evaluation by an approved testing laboratory for compliance with UL 9540 (or approved equivalent) and applicable codes, regulations and safety standards may be used to meet system certification requirements.

Site access. Battery energy storage systems shall be maintained in good working order and in accordance with industry standards. Site access shall be maintained, including snow removal at a level acceptable to the fire department and emergency services.