[Added 3-24-2021 by L.L.
No. 2-2021]
This Solar Energy Local Law is adopted pursuant to §§ 261
through 263 of the Town Law and § 20 of the Municipal Home
Rule Law of the State of New York, which authorize the Town of Newfane,
hereinafter referred to as the "Town," to adopt zoning provisions
that advance and protect the health, safety and welfare of the community,
and, in accordance with the Town Law of New York State, "to make provision
for, so far as conditions may permit, the accommodation of solar energy
systems and equipment and access to sunlight necessary therefor."
This Solar Energy Local Law is adopted to advance and protect
the public health, safety, and welfare of the Town 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 help 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 that are complementary to Town goals outlined in the
community Master Plan that include protection of high-value farmland.
D.
To make the potential benefits of solar energy development available
to the Town, its residents and property owners.
E.
To manage and regulate solar development in a way that complements
and protects rural residential neighborhoods, business and commercial
districts and mitigates potential impacts solar installations will
have on these community assets.
F.
To manage and mitigate the impacts of solar energy development to
protect environmental and agricultural resources of the Town; such
as high-value farmland and orchards, sensitive natural resources,
and the recreation corridors of Lake Ontario and the Eighteen Mile
Creek.
G.
To create zoning regulations for solar energy systems that reflect
the goals and policies of the Town's Comprehensive Plan, Niagara
County's Agriculture and Farmland Protection Plan, and other
regional planning programs.
As used in this article, the following terms shall have the
meanings indicated:
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 in the Rural Residential (RR), Agricultural Residential
(AR) and Industrial Zones where there is sufficient open space, acreage
and favorable soil conditions to support cultivation of agricultural
crops.
ACTIVE FARMLANDLand where crops are currently grown or have been grown in the past five years, and includes any land that has received an agricultural exemption in the past five years.
PRIME FARMLANDAcreage designated and categorized by the U.S. Department of Agriculture (USDA) where soils and hydrology contain the best combination of physical and chemical characteristics for producing quality crops.
PRIME FARMLAND IF DRAINEDLand that meets the USDA criteria for prime farmland, except for depth to the water table, and with managed drainage would be classified as prime farmland.
FARMLAND OF STATEWIDE IMPORTANCELand that has soil characteristics of USDA classifications 1 through 3 or 4w, is available for farming and is important to statewide agricultural production, but does not meet the USDA criteria for "prime farmland" or "prime farmland if drained."
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.
These terms are often referred to interchangeably in this
article and refer to land ownership designations as shown on the current
Tax Map of the Town of Newfane.
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.
A participating property is one that develops a solar energy
project on land they own, or leases rights to a developer that operates
a solar energy project or equipment on the property owner's land.
A property (neighboring, adjoining or other) that agrees to support
a solar energy development on another property with land, facilities,
equipment, financial or operational involvement is also a participating
property. A non-participating property has no legal or operational
relationship with a solar project on another property.
A solar energy system located on the roof or attached to
any legally permitted building or structure that primarily produces
electricity for on-site use.
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 domestic and commercial use. The
term includes, but is not limited to, solar panels and associated
solar energy equipment, structures and facilities. The term refers
to solar panels, equipment and facilities on a single property and
the collective array of panels, equipment and facilities on multiple
properties that are under a single ownership, leasing structure or
management.
Solar energy systems for the purpose of this article are classified
as follows.
Tier 1: Tier 1 solar energy systems are roof-mounted, building-mounted
and building-integrated accessory equipment that generate net energy
metering when installed on a conforming residence, facility or structure.
Tier 2: Ground-mounted solar energy systems are those intended
to only provide energy for on-site use at residential, agricultural,
business, commercial or community facilities. Tier 2 solar energy
systems are limited to generating up to 110% of the electricity consumed
on the site over the previous 12 months.
Tier 3: Utility-grade, commercial or other large solar energy
systems that produce energy for off-site distribution, consumption
and use. Tier 3 systems are those that do not meet the criteria for
Tier 2 systems and do not exceed 50 acres in size.
Tier 4: Utility-grade, commercial or other large solar energy
systems that produce energy for off-site distribution, consumption
and use and are over 50 acres in size.
A photovoltaic device capable of collecting and converting
solar energy into electricity.
A device that stores energy and makes it available for use
and redistribution as electrical power. Solar storage batteries, equipment
and facilities are only permitted in the AR and Industrial Zones,
unless otherwise approved by the Planning Board. Solar energy storage
must comply with provisions of the NYS Uniform Fire Prevention and
Building Code and, when adopted, the local Town of Newfane Battery
Storage Law.
A.
The requirements of this article shall apply to all solar energy
systems permitted, installed or modified in the Town after the effective
date of this article, excluding general maintenance and repair.
B.
Solar energy systems constructed or installed prior to the effective
date of this article shall not be required to meet the requirements
of this article.
C.
Modifications to an existing solar energy system that increase the
solar energy system area by more than 5% of the original area of the
solar energy system (exclusive of moving any fencing) shall be subject
to this article.
D.
All solar energy systems shall be designed, erected and installed
in accordance with applicable codes, regulations and industry standards
as referenced in the NYS Uniform Fire Prevention and Building Code,
the NYS Energy Conservation Code and the Town of Newfane Code.
A.
A building permit is required for installation of all solar energy
systems. Certain Tier 2 and all Tier 3 and 4 systems require a site
plan review and special exception use (SE) permit. The Planning Board
can require a site plan review for all solar installations where necessary.
B.
This article shall take precedence over any inconsistent provision
of the Zoning Law of the Town of Newfane.
C.
Issuance of permits and approvals by the Town of Newfane Planning
Board, hereinafter referred to as the "Planning Board," shall include
review pursuant to the State Environmental Quality Review Act, ECL
Article 8, and its implementing regulations, 6 NYCRR Part 617 (SEQRA).
D.
Solar energy storage batteries, equipment and facilities are only
permitted in the AR and Industrial Zones, where they must meet placement,
setback and other applicable provisions for Tier 3 and 4 solar energy
systems. The Planning Board can consider applications for placement
of battery storage in the RR Zone after evaluating the size, capacity,
location, safety and other impacts such batteries will have on properties
in the area.
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Zoning District Abbreviations
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R1 Residential 1
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MB Marine Business
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R2 Residential 2
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VB Village Business
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P Permitted
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RR Rural Residential
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HC Highway Commercial
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SE Special Exception Use
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AR Agricultural/ Residential
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GI General Industrial
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X Not Permitted
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CF Community Facilities
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IND Industrial
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C.
Maximum height (when positioned at maximum tilt).
(1)
In R1, R2, VB and MB: 12 feet (see Note 1 below).
(2)
In AR, RR, HC and CF: 15 feet (see Note 2 below).
(3)
In the Industrial Zones: 20 feet.
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Notes:
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1
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For Tier 2 systems, heights can be modified to a maximum of
14 feet when reasonable justification as determined Planning Board
is provided (The application must be forwarded to the Planning Board
for a site plan review if a special exception use permit is not required.).
The Planning Board must consider how this modification will impact
the visual and aesthetic character of the neighborhood and surrounding
nonparticipating properties.
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|
2
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For Tier 3 and 4 systems, the Planning Board can authorize heights
to 20 feet in the AR and RR Zones when the property underlying all
solar panels is used for permanent, systemwide and active agricultural
purposes. To meet this requirement, the developer or property owner
must prepare a plan for review and approval by the Planning Board
and submit a report annually to the Building Inspector that demonstrates
continuing agricultural activity. The Planning Board must consider
and weigh how this modification will benefit agriculture and impact
the visual and aesthetic character of the neighborhood and surrounding
non-participating properties.
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D.
Setbacks. For Tier 2, 3 and 4 systems, the setback from side and
rear property lines is 30 feet, unless modified with reasonable justification
as determined by the Planning Board, but no less than 20 feet and
no less than the standard accessory structure setback established
by the Town Zoning Ordinance for the applicable zoning district.
E.
Rear, side and front yard placement. Solar panel placements in rear
yards are preferred and front yard placements are prohibited, except
where no front yard structures exist. Side yard installations for
Tier 2 systems may be approved by the Planning Board if the proposal
is forwarded to the Planning Board for a site plan review. Appropriate
justifications, dimensions and maps must be provided for evaluation
by the Planning Board. Side yard placement must maintain setbacks
from the road, neighboring property lines and residential structures.
F.
Area coverage of solar energy systems and panels.
(1)
General.
(a)
Minimum lot sizes and lot size thresholds for Tiers 2, 3 and
4 are defined by the total number of acres that make up an ownership
parcel or property, as defined on tax maps maintained by Niagara County
and the Town of Newfane.
(b)
The size of a Tier 3 and 4 system that covers up to or exceeds
50 acres is measured by the perimeter or collective perimeters of
the solar system fence line(s).
(c)
For Tier 2, 3 and 4 systems, maximum square feet of panel coverage
is determined by measuring the outer perimeter of a panel cluster,
including all related solar equipment and structures. When there are
two or more separated panel clusters, the coverage area is the sum
of all clusters and equipment when each is measured around its perimeter.
(2)
Tier 2 systems.
(a)
For Tier 2 solar energy systems, maximum panel coverage on lots
from 16,000 square feet to two acres in R1, R2, VB, MB Zones is 500
square feet of panel coverage.
(b)
Tier 2 maximum panel coverage on lots from 16,000 square feet
to two acres in AR, RR, HC, CF Zones is 1,000 square feet of panel
coverage.
(c)
On lots over two acres in the AR, RR, HC and CF Zones, maximum
panel coverage for Tier 2 systems is 3,000 square feet.
(3)
Tier 3 and 4 systems.
(a)
For Tier 3 and 4 systems, maximum panel coverage on lots two
acres to five acres is 5% of the lot size, where the lot contains
an existing structure(s), and 25% on a vacant lot. Maximum panel coverage
on lots five acres and greater is 50% of the total lot size.
(b)
There is no limit on maximum panel coverage in the Industrial
Zones; setbacks, safety and fire access requirements apply.
(c)
In all cases, property owners and developers must consider the
extent of property they will dedicate to a solar energy system and
panel coverage, while meeting requirements for safety, emergency and
maintenance access, and also consider the potential for other uses
of the property and the preservation of open space.
A.
Tier 1 solar energy systems are roof-mounted, building-mounted and
building-integrated accessory equipment that provide only on-site
energy use for a conforming residence, facility or structure. Tier
1 systems require a building permit and must meet design, code, height,
safety and roof integrity standards.
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R1
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R2
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RR
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AR
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VB
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MB
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HC
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GI/IND
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CF
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|---|---|---|---|---|---|---|---|---|
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P
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P
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P
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P
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P
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P
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P
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P
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P
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B.
Tier 1 solar energy systems are subject to the following conditions:
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System
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Height
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Electrical Generation
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|---|---|---|---|
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Pitched Roof
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Flat Roof
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Tier 1 Roof-Mounted, Building-Mounted and Building-Integrated
Systems
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All solar surfaces and equipment shall not exceed 12 inches
from the finished roof surface in all Residential, Village and Marine
Business Zones; and 24 inches in Highway Commercial and Industrial
Zones.
Panels shall not extend higher than the highest point on the
roof surface.
Panels and equipment must be at least 18 inches from the roof
edge.
Panels must be installed parallel with the roof surface orientation.
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Panels 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.
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Limited to energy required for on-site use
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C.
Glare, reflection and color. The design, construction, operation
and maintenance of any solar energy system shall prevent the misdirection
and/or reflection of solar rays onto neighboring properties, public
roads and public spaces in excess of that which already exists. All
solar panels shall have anti-reflective materials and/or coating(s),
and proof of such must be provided with the building permit application.
Panel and equipment color shall be consistent with industry standards;
usually dark colors or shades of black, dark blue or grey.
D.
Fire safety. All roof-mounted systems shall be designed and installed
in accordance with standards set by the NYS Uniform Fire Prevention
and Building Code.
(1)
Notification to the fire service. Notification in writing to
the fire company having operational authority at the location where
the system will be installed shall be made no later than 10 days following
installation
(2)
Notification shall include a site map showing the location of
the solar energy electrical panel, as well as the proper operation
of the disconnect switch(s) in the event of a fire or other emergency
situation where the homeowner, tenant or other personnel are not available
or familiar with the safe shutdown operation of unit so as to have
the ability to cut power from the solar panels.
(3)
In addition, a written statement showing the method of shutdown
shall be posted inside the main electrical panel of the unit that
can be readily accessible for and to firefighting personnel.
E.
Roof structural integrity. The building permit application for a
rooftop solar system must include an architect- or engineer-approved
report documenting the structural integrity of the roof to handle
the solar energy system components to be mounted on the roof.
F.
Building-integrated solar energy systems shall be shown on the plans
submitted for the building permit application for the building containing
the system.
A.
Tier 2 systems are accessory structures that provide only on-site energy for agricultural use, single- and multifamily residences, business, retail, commercial or community facilities. Maximum total surface area of all panels on the lot varies by zoning district. Ground-mounted solar energy systems can provide up to 110% of the electricity consumed on the site over the previous 12 months. Ground-mounted systems are subject to setbacks which limits their applicability on some lots. Solar energy systems are not permitted in front yards, and setback requirements apply for side and rear yard placement in all zones (see § 270-11A.6, Subsection E). All Tier 2 systems require a building permit, and Tier 2 ground-mounted solar energy systems exceeding 1,000 square feet of solar panel coverage in RR, AR, HC, CF and Industrial Zones require a site plan review and special exception use permit.
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Tier 2 Solar Energy Systems
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R1
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R2
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VB
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MB
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RR
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AR
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HC
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GI/IND
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CF
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Permitted (P)
Solar panel coverage is limited to 500 square feet.
Minimum lot size is 16,000 square feet.
Must meet all setback requirements.
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Permitted (P) when solar panel coverage is 1,000 square feet
or less; setbacks must be met
Site plan review and special exception use permit (SE) required
when solar panel coverage exceeds 1,000 square feet.
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Tier 2 - Ground-Mounted Solar Energy Systems
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System
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Minimum Lot Size
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Maximum Area Coverage of Solar Panels
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Setbacks
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Height
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Electrical Generation
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Tier 2 Ground-Mounted Solar Energy Systems
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16,000 square feet
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Maximum panel coverage on lots in R1, R2, VB, MB Zones is 500
square feet.
Maximum panel coverage on lots from 16,000 square feet to two
acres in AR, RR, HC, CF Zones is 1,000 square feet.
Maximum panel coverage on lots over two acres in the AR, RR,
HC and CF Zones is 3,000 square feet.
There is no limit on maximum panel coverage in the industrial
zones; setbacks, safety and fire access requirements apply.
Note: Panel coverage is measured as the outside perimeter of
a panel cluster and equipment or the sum of the perimeters of multiple
clusters and equipment.
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Solar panels and equipment must be:
100 feet or more from the right-of-way edge of a road or street.
50 feet from a neighboring zoning district boundary.
30 or more feet from any side or rear property line.
200 feet from any dwelling or residence on an adjoining non-participating
property.
60 feet from any dwelling or residence on the participating
property.
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Maximum panel height in R1, R2 VB and MB Zones is 12 feet.
Maximum panel height in AR, RR, CF and IND Zones is 15 feet.
Maximum height in the Industrial Zones is 20 feet.
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Generate up to 100% of energy consumed on the site over the
previous 12 months
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B.
Agricultural use. A Tier 2 solar energy system primarily used for
agricultural operations and purposes in accordance with the NYS Agriculture
and Markets Law may have some of the requirements of this article
waived where they are inconsistent with the Agriculture and Markets
Law.
C.
Emergency access. Any solar energy system shall be accessible for
all emergency service vehicles and personnel.
D.
Glare, reflection and color. The design, construction, operation
and maintenance of any solar energy system shall prevent the misdirection
and/or reflection of solar rays onto neighboring properties, public
roads and public spaces in excess of that which already exists. All
solar panels shall have anti-reflective materials and/or coating(s),
and proof of such must be provided with the site plan application
and at the building permit application. Panel and equipment color
shall be consistent with industry standards; usually dark colors or
shades of black, dark blue or grey.
E.
Tree removal. The location and design of the Tier 2 systems shall
minimize tree removal.
F.
Visibility and screening. All Tier 2 solar energy systems shall have
views minimized from adjacent properties to the extent reasonably
practicable (as determined through the building inspection and site
plan review, where applicable). 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.
A.
Tier 3 and 4 solar energy systems are utility-grade commercial systems
primarily intended to collect energy for off-site distribution, consumption
and energy markets. All require a site plan review, special exception
use permit, fencing, maintenance and landscape plans (that include
impacts on off-site drainage), SEQR review, liability insurance, a
safety plan and a decommissioning plan. The Planning Board will also
require the analysis of agricultural and economic impacts commensurate
with the size and potential community influence of the project. These
systems may also be eligible for a solar energy system PILOT and may
require a host community agreement as determined by the Town Board.
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R1
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R2
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RR
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AR
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VB
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MB
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HC
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GI/IND
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CF
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X
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X
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SE
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SE
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X
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X
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X
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SE
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SE
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(2)
Tier 1 solar energy systems installed on property containing
Tier 3 and 4 systems remain regulated by provisions in this article
for Tier 1 installations. The Tier 1 installations are not included
in the area coverage and are not considered part of the Tier 3 or
4 system.
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Tiers 3 and 4 - Utility-Scale Solar Energy Systems
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System
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Lot Size
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Maximum Area Coverage of Solar Panels
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Setbacks
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Height
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Tier 3 and 4 Utility-Scale Solar Energy Systems and those not
meeting specifications for Tier 2
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Minimum lot size is 2 acres; other setback and space requirements
must be met.
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On lots 2 to 5 acres, maximum panel coverage is 5% of the lot's
total square feet where the lot contains an existing structure(s)
and 25% on a vacant lot without a structure(s).
On lots greater than 5 acres, maximum panel coverage is 50%
of the lot's total square feet.
There is no limit for panel coverage in the Industrial Zones;
setbacks, safety and fire access requirements apply.
Note: Panel coverage is measured as the outside perimeter of
a panel cluster and equipment or the sum of the perimeters of multiple
clusters and equipment.
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The solar energy system fence line must be:
200 feet from a road, street or public right-of-way,
measured from the outer edge of the right-of-way.
300 feet from any dwelling or residence on an adjoining
non-participating property, including those on the opposite side of
a road or right-of-way.
100 feet from an on-site dwelling or residence.
150 feet from any zoning district boundary that
does not allow Tier 3 and 4 systems, and 50 feet from an adjoining
Industrial District boundary.
50 feet from any side property boundary and 100
feet from a rear property boundary.
Solar panels, structures and equipment for all Tier 3 and 4
systems must be a minimum 25 feet from the solar system fence line.
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Maximum solar panel and equipment height shall not exceed 15
feet in the AR, RR, HC and CF Zones.
See ** on page 5 for agricultural modifications to 20 feet
Solar panels and equipment shall not exceed 20 feet in the Industrial
Zones.
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B.
Requirements for Tier 3 and Tier 4 solar energy systems in prime
agricultural areas. Development and land use policy in the Town of
Newfane, as identified in the Town Comprehensive Master Plan and the
Niagara County Farmland Protection Plan, emphasize the preservation
of prime agricultural land and the protection of agricultural resources.
55% of the land in the Town of Newfane is classified as "prime farmland"
and/or "farmland of statewide importance." The extent of prime farmland
in the Town of Newfane exceeds that of other towns in Niagara County
(see map of agricultural soil classifications at the Newfane Town
Hall or USDA offices). To meet this agricultural land protection goal,
Tier 3 and 4 solar energy systems must comply with the following three
requirements (properties in the Industrial Zones are exempt from the
following three provisions):
(1)
Tier 3 and 4 solar energy systems shall not be permitted on
any property, lot or parcel that contains 50% or more land classified
as "prime farmland" or "farmland of statewide importance." Prime farmland
acreage that has not been actively farmed in the past five years can
be deducted from the total acres of prime farmland on the parcel when
determining this percentage. "Prime farmland if drained" is not required
to be included when calculating the percentage of prime farmland on
a property. Establishing these requirements:
(a)
Prime farmland is determined and classified by the US Department
of Agriculture (USDA), and the percentage of prime farmland and farmland
of statewide importance is calculated using USDA maps and online data
tools, including any amendments made to those maps and data. It is
the responsibility of the developer and/or landowner to provide written
evaluation, data and mapping to the Planning Board that this 50% requirement
is met. The evaluation must contain data and maps that are supported,
approved and/or published by the USDA, NYS Agriculture and Markets
and/or Niagara County Soil and Water Conservation District (NRCS).
The Planning Board may require that this evaluation be reviewed by
the Town Engineer, consultant or local agricultural services agent,
where the cost of this review will be the responsibility of the developer
or landowner.
(b)
Farmland not active in the past five years is acreage where
no agricultural tax exemption has been granted in the five-year period
and where evidence is provided to the Planning Board that the land
has not been actively farmed. The developer or landowner must provide
the Planning Board with current photos and a description of the property's
status, to include the type and maturity of natural growth on the
lot and any maintenance or alterations performed on the property.
The Planning Board can also require that an independent and experienced
agricultural professional or agent provide an inspection and evaluation
of the property's status.
(c)
Prime farmland if drained is only that designated and identified
on USDA records, databases and/or maps.
(2)
Tier 3 and 4 solar energy systems are not permitted in the Town
of Newfane north of the former New York Central (Hojack) Railroad
right-of-way. This area contains a high density of prime farmland
that supports orchard and fruit production which defines the agricultural
identity and character of the community. This former NY Central Railroad
route is no longer a legal right-of-way and has been transferred to
private owners, but its position is shown on the Town of Newfane Zoning
Map and other property maps available at the Newfane Town Hall. There
are no exemptions from this provision.
(3)
Tier 3 and Tier 4 solar energy systems to be constructed on
any active farms or any non-active lands containing prime farmland
and/or farmland of statewide significance shall be constructed in
accordance with requirements set by the New York State Department
of Agriculture and Markets (See NYS Agriculture and Markets Guidelines).
When a solar energy system is decommissioned, the site shall be restored
and remediated in accordance with NYS Agriculture and Markets Guidelines,
the Town of Newfane Solar Energy Law and any conditions required by
the Planning Board's special exception use permit.
C.
Other requirements for Tier 3 and Tier 4 systems.
(1)
Permitted zones: Tier 3 and 4 solar energy systems are permitted
in the Agricultural Residential (AR), Rural Residential (RR) and Industrial
Zones when they follow provisions of this article and other state
and federal regulations, and after a site plan review has been approved
and a special exception use (SE) permit is authorized.
(a)
Discussions with the Town Board about the applicability of a
solar energy PILOT and/or host community agreement must take place
prior to the Planning Board considering and approving a special exception
use permit.
(b)
Solar energy system PILOT: Tier 3 and 4 systems can have significant
implications for the financial and economic conditions of a community.
A solar energy system PILOT may have advantages and/or disadvantages
to a community that need to be evaluated. The Newfane Town Board will
determine if a PILOT should be considered.
(c)
Host community agreement: In order to ensure that solar energy
projects adequately benefit the overall community and that solar energy
resources are used to support and mitigate the costs and impacts the
solar development will have on the community, the Town Board of Newfane
may require that Tier 3 and 4 developers and/or property owners enter
into a host community agreement.
(2)
Impact statements: Tier 3 and 4 solar energy projects are very
large systems that have the potential to significantly impact the
Town of Newfane, its citizens and the economy of the community. Therefore,
Tier 3 and 4 systems shall be required to provide the following analysis
in addition to other requirements noted in this article:
(a)
Submittal of an agricultural impact statement to determine the
solar system's impact on agriculture in the Town. The Planning
Board, on a project-by-project basis, can amend the scope and detail
of information required from the applicant; and the applicant should
consult with NYS Agriculture and Markets, USDA and the Natural Resources
Conservation District (NRCS) in preparation of this statement.
(b)
Submittal of an economic impact analysis to determine the effect
a solar energy project will have on the economy of the Town. This
includes those outlined in the agricultural impact statement and other
factors related to commerce, employment, housing, transportation,
tourism, education, environmental protection, municipal services,
revenues and taxation. The Planning Board, on a project-by-project
basis, can amend the scope and detail of information required from
the applicant.
(3)
Battery storage: Solar storage batteries, equipment and facilities
are only permitted in the AR and Industrial Zones, unless otherwise
approved by the Planning Board. Solar energy storage must comply with
provisions of the NYS Uniform Fire Prevention and Building Code and,
when adopted, the local Town of Newfane Battery Storage Law.
(4)
Drainage: Solar energy systems must comply with NYS stormwater
regulations. Developers must demonstrate that solar systems will not
create adverse drainage, runoff or hydrology conditions that could
impact adjoining and other non-participating properties. Developers
are required to submit drainage design plans to the Planning Board
that may be forwarded to the Town Engineer for review at the developer's
expense.
(5)
Fencing: All solar panels, mechanical and electrical equipment,
and battery storage shall be enclosed by a minimum eight-foot fence
with self-locking gate(s) that will reasonably prevent unauthorized
access. The fencing shall be commercial grade, well maintained, shall
not include any barbed wire, and shall consider provisions for animal/wildlife
protection where practical and reasonable.
(6)
Glare, reflection and color: The design, construction, operation
and maintenance of any solar energy system shall prevent the misdirection
and/or reflection of solar rays onto neighboring properties, public
roads and public spaces in excess of that which already exists. All
solar panels shall have anti-reflective materials and/or coating(s),
and proof of such must be provided with the building permit application.
Panel and equipment color shall be consistent with industry standards;
usually dark colors or shades of black, dark blue or grey.
(7)
Ground screw supports: Ground screw columns or similarly effective
support structures are required in prime farmland areas instead of
concrete pads or platforms, to provide an advantage when returning
the land to farm production after the solar facility is no longer
in use. The Planning Board can authorize alternate support structures
that meet this goal, when required and appropriate for technical or
engineering considerations.
(8)
Hazardous materials: The project components shall not contain
any hazardous materials as classified by state and federal standards;
or potential contamination by hazardous materials to the soil, water
and air must be mitigated by meeting state and federal regulatory
requirements.
(9)
Solar energy system liability insurance:
(a)
The holder of a special exception use permit for a solar energy
system shall agree to secure and maintain for the duration of the
permit, public liability insurance as follows:
[1]
Commercial general liability covering personal
injuries, death and property damage must be in place at the following
levels: $1,000,000 per occurrence, $3,000,000 aggregate and a $1,000,000
umbrella. This coverage shall specifically include the Town of Newfane
and its officers, councils, employees, attorneys, agents and consultants
as additional named insureds.
[2]
Insurance company: The insurance policies shall
be issued by an agent or representative of an insurance company licensed
to do business in the state and with at least a Best's rating
of "A".
[3]
Insurance policy cancellation: The insurance policies
shall contain an endorsement obligating the insurance company to furnish
the Town of Newfane with at least 30 days' prior written notice
in advance of cancellation.
[4]
Insurance policy renewal: Renewal or replacement
policies shall be delivered to the Town of Newfane at least 15 days
before the expiration of the insurance that such policies are to renew
or replace.
[5]
Copies of insurance policy: No more than 15 days
after the grant of the permit before construction is initiated, the
permit holder shall deliver to the Town of Newfane a copy of each
of the policies or certificates representing the insurance in the
required amounts.
[6]
Certificate of insurance: A certificate of insurance
that states that it is for informational purposes only and does not
confer sufficient rights upon the Town of Newfane shall not be deemed
to comply with this article.
(b)
Indemnification: Any application for a solar energy system within
the Town of Newfane shall contain an indemnification provision. The
provision shall require the applicant/owner/operator to at all times
defend, indemnify, protect, save, hold harmless and exempt the Town
of Newfane and its officers, councils, employees, attorneys, agents
and consultants from any and all penalties, damages, costs or charges
arising out of any and all claims, suits, demands, causes of action
or award of damages, whether compensatory or punitive, or expenses
arising therefrom, either at law or in equity, which might arise out
of or are caused by the placement, construction, erection, modification,
location, equipment's performance, use, operation, maintenance,
repair, installation, replacement, removal or restoration of said
solar energy system; excepting, however, any portion of such claims,
suits, demands, causes of action or award of damages as may be attributable
to the negligent or intentional acts or omissions of the Town of Newfane
or its employees or agents. With respect to the penalties, damages,
or changes referenced herein, reasonable attorneys' fees, consultant
fees and expert witness fees are included in those costs that are
recoverable by the Town of Newfane.
(10)
Lighting: Lighting for solar energy systems shall be limited
to that minimally required for safety and operational purposes and
shall be reasonably shielded and downcast from neighboring properties
and minimize off-site exposure.
(11)
Maintenance plan(s): The owner/developer of a solar project
must prepare a plan for maintenance of the structures, equipment,
grounds and photovoltaic components of the property, facilities and
system. Plans should include provisions for panel cleaning and the
prevention of chemical and corrosive contamination to the land.
(12)
Natural protection and restoration: Tier 3 and 4 solar energy
system owners shall develop, implement, and maintain native vegetation
to the extent practicable pursuant to a vegetation management plan
that uses native perennial vegetation and foraging habitat beneficial
to game birds, songbirds, and pollinators. To the extent practicable,
when establishing perennial vegetation and beneficial foraging habitat,
the owners shall use native plant species and seed mixes. Once established,
other agriculture uses such as pasturing livestock and beekeeping
are permissible and encouraged. Input from local farmers and County
Agricultural Agents can help to make these determinations.
(13)
Noise: The project shall be shown to not have adverse or unreasonable
noise impacts on surrounding homes or other sensitive receptors. (The
solar energy system must meet NYSDEC regulations and noise abatement
requirements that may be more stringent than those outlined in the
Town's local noise law.[1])
(14)
Ownership changes: If the owner or operator of the solar energy
system changes or the owner of the property changes, the special exception
use permit shall remain in effect, provided that the successor owner
or operator assumes in writing all of the obligations of the special
exception use permit, site plan approval and decommissioning plan,
prior to said sale or transfer. The new owner must agree in writing
to abide by the obligations and terms of the special exception use
permit, or until the solar energy system is decommissioned or removed
according to the provisions of this article. A potential new owner
or operator of the solar energy system shall notify the Zoning Enforcement
Officer of an upcoming change in ownership or operator at least 30
days prior to the date of a planned ownership change. Failure to comply
with this subsection may result in the revocation of the special exception
use permit.
(15)
Signs:
(a)
No signage or graphic content shall be displayed on the solar
energy systems or property, except that identifying the manufacturer
and operator's name(s), logo, equipment specifications, safety
information and twenty-four-hour emergency contact information. Said
information shall be depicted on a sign(s) that complies with the
sign ordinance of the Town of Newfane.
(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.
(16)
Screening, visibility and landscape:
(a)
All Tier 3 and Tier 4 solar energy projects must submit a screening
and landscaping plan to show measures being taken to use plantings,
landscaping, existing natural buffers and related means to minimize
views of solar panels and solar energy equipment. Reasonable and practical
measures must be implemented to limit sightlines of solar panels,
facilities and equipment from public roadways and adjacent properties.
The Planning Board will evaluate screening and visibility requirements
based on the size and location of the project and its visual impact
on adjacent properties and public areas.
(b)
For all Tier 3 and Tier 4 systems, solar energy system developers
and/or property owners must conduct a visual assessment of the impacts
of the solar energy system on public roadways and adjacent properties.
At a minimum, a visual evaluation commensurate with the size of the
project, topography and existing natural screening shall be provided.
Depending upon the scope and potential significance of the project's
visual impacts, the Planning Board can require that the applicant
submit a digital elevation model, line-of-sight profile analysis or
viewshed report, and a graphic or visual representation of how the
landscaping and screening will look today and will be expected to
appear after 10 years.
(c)
For all Tier 3 projects, the recommendations of a landscape
professional are required. The Planning Board can require that Tier
3 systems involving complex or sensitive visual and/or aesthetic concerns
be approved by a NYS registered landscape architect. All Tier 4 solar
energy systems must be approved by a NYS registered landscape architect.
(d)
The screening and landscaping plan shall specify the locations,
elevations, height, plant species, grading and/or materials that will
comprise the landscape design. The landscape plan should also incorporate
existing trees, plants and shrubs into the landscape design to the
extent practical and possible.
[1]
The landscape screening (buffer) shall be comprised
of evergreen/coniferous trees and supplemental lower growth shrubs
planted between the evergreen/conifers. The evergreen/coniferous tree
plantings must be six feet or more in height at the time of planting
and planted at recommended spacing for preferred growth and screening
coverage. A staggered, zig-zag or similar planting pattern shall be
used that will achieve healthy growth and maximum screening.
[2]
Plantings and landscaping must be undertaken in
a way that is appropriate for the type of soil, drainage and other
conditions at the planting site. A site inspection and analysis of
soil and drainage factors is required; the USDA, Soil and Water Conservation
District and/or a landscape professional should be consulted to assist
with the selection and placement of appropriate species.
[3]
Where possible and practical, these planting will
be placed within 20 feet of the solar system fence line or solar equipment
where no fence is required, unless an alternative planting proposal
approved by the Planning Board will ensure equal or better natural
growth and desired screening.
[4]
Existing trees, shrubs, vegetation, ground elevations
and structural features at the site may be used to satisfy all or
a portion of the required landscape screening. Solar energy system
owners and developers shall use and maintain native vegetation, to
the extent practicable, that reinforces and supplements native growth,
foraging and habitats.
[5]
All plantings, existing screening features, materials
and structures that make up the screening profile of a solar energy
system must be restored or replaced if their capability to provide
desired screening is diminished or compromised, from the time the
solar system is installed until removal (decommissioned).
[6]
Any buildings or structures (not panels) that are
constructed as part of, or in support of, the solar energy system
shall be designed to blend with the appearance and character of the
area. For example, buildings in rural areas should be designed to
look like agricultural structures such as barns.
[7]
The Planning Board can require modifications to
the plan that will enhance screening and/or mitigate adverse visual
aesthetics that impact views and neighboring properties. The Planning
Board can reduce or amend landscape screening requirements when adjoining
properties are participating properties.
[8]
Where this article authorizes the Planning Board
to consider modifications to these landscape requirements, a review
and recommendations by a landscape professional or architect are required.
(17)
Sky space easements: A property owner or developer who has or
intends to install a Tier 3 or Tier 4 solar energy system may choose
to negotiate with other property owners in the vicinity for necessary
solar sky space easements. The issuance of a special exception use
permit does not constitute solar sky space rights and the Town shall
not be responsible for ensuring impermissible obstruction to the solar
sky space as a result of uses or development performed in accordance
with the Town Code. In the event that solar easements are negotiated
by a utility-scale solar energy system applicant or property owner,
a copy or documentation of any solar sky space easements shall be
provided and properly recorded with affected property owners. The
easement shall, at a minimum, include the following:
(a)
Restrictions on buildings, structures, vegetation and other
objects or uses that would potentially obstruct the solar sky space
of the solar energy system.
(b)
A description of the dimensions of the easement expressed in
measurable terms, such as the maximum height of buildings and structures,
vertical or horizontal angles measured in degrees, or the hours of
the day on specified dates during which direct sunlight to a specified
surface of a solar collector may not be obstructed, or a combination
of these descriptions.
(c)
The amount, if any, of permissible obstruction of the solar
sky space through the easement, expressed in measurable terms, such
as a specific percentage of the solar sky space that may be obstructed
or hours during the day.
(d)
Provision for trimming vegetation that would impermissibly obstruct
solar sky space, including any compensation for trimming expenses.
(e)
Provisions for compensation of the owner/operator benefitting
from the easement in the event of impermissible obstruction of the
solar sky space that would be in violation of the easement.
(f)
The terms or conditions, if any, under which the easement may
be revised or terminated.
(18)
Tree removal: Removal of existing trees larger than six inches
in diameter should be minimized to the extent possible. Where possible
and practical, existing trees should be incorporated into the landscape
design of the project.
(19)
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.
(20)
Vehicle paths: Vehicle paths within the site shall be designed
to minimize the use of impervious materials and the disruption of
soil compaction, while providing an adequate base, width and height
for emergency vehicles.
D.
Application requirements for Tier 3 and Tier 4 solar energy systems.
(1)
Applications will be made to and reviewed by the Town of Newfane
Building Inspector, who will review proposals with the Town Attorney
and Planning Board Chair for Planning Board action as appropriate.
(2)
All applications for Tier 3 and 4 solar energy systems shall
include the appropriate fees as set by the Newfane Town Board.
(3)
Tier 3 and 4 solar energy system applications must be accompanied
by the following maps, documentation and resources for review by the
Planning Board:
(a)
A plot (map) showing property lines and dimensions, natural
and physical features, as well as structures, roads and utilities
for the entire project site and bordering areas.
(b)
Proposed changes to the landscape of the site, grading, vegetation
clearing and planting, exterior lighting, and screening vegetation
or structures
(c)
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.
(d)
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.
(e)
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 a building permit.
(f)
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.
(g)
Zoning district designations for all participating, adjoining
and neighboring properties that comprise the project site(s).
(h)
Property operation and maintenance plan. Such plan shall describe
continuing photovoltaic maintenance and property upkeep, such as mowing
and trimming.
(i)
Drainage, 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.
(j)
Prior to the issuance of the building permit or final approval
by the Planning Board, but not required as part of the application,
engineering documents must be signed and sealed by a New York State
(NYS) licensed professional engineer or NYS registered architect.
(k)
A completed SEQR full environmental assessment form.
(l)
A landscape plan, when required in accordance with the special
exception use permit requirements of this article.
(m)
Agricultural assessment and economic impact analysis when required
by provisions of this article.
(n)
Maintenance plan: Applications shall include a maintenance plan
for all leased or owned lands; to include areas where solar equipment
is placed, accessory use and maintenance areas, storage sites, landscaping,
setback, screening and buffer areas.
(o)
Safety: Applications shall include a safety plan (including
communication and coordination with emergency service providers).
(p)
Environmental and cultural resources: Information on the environmental
and cultural resources (as identified through the NYSDEC mapping system
and by the Town of Newfane) on the subject property and surrounding
properties.
(q)
Any such additional information as may be required by the Town's
professional engineer, consultant, Planning Board, Town Board, Attorney,
Building Inspector or other Town official.
(4)
Once a solar energy application is under review by the Planning
Board, it shall also be referred to the Town Board for consideration
of a host community agreement and PILOT, if appropriate. These agreements,
if necessary, will need to be finalized before the Planning Board
acts on the special exception use permit.
(5)
The solar energy application is subject to a public hearing
to provide citizens and interested parties the opportunity to learn
about the proposal, ask questions and offer input. A public notice
of the hearing and written notification to nearby residents of the
hearing shall be completed in accordance with the Town Zoning Ordinance.
Notice of the public hearing should also be widely distributed throughout
the community by the town and the property owner/developer using publications,
notices and social media.
(6)
The solar energy application must be referred to the Niagara
County Planning Board pursuant to General Municipal Law § 239-m.
(7)
After conducting the public hearing and completing the SEQR
review, the Planning Board shall act on the special exception use
permit application. This action can include approval, approval with
conditions or denial.
A.
Solar energy systems that have been abandoned and/or not producing
electricity (defined as operating at a minimum of 50% capacity for
a period of at least 12 months) 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 article.
The Town Board and/or Building Inspector can require that the solar
system owner and/or developer provide an annual production analysis
to aid in making this determination. If the owner/developer fails
to produce a complete and accurate analysis, the Town can obtain its
own analysis at the owner's/developer's expense, or after
providing notice and reasonable time can proceed with removal and
decommissioning of the system.
B.
Decommissioning plan.
(1)
A decommissioning plan (see example) signed by the owner and/or
operator of the solar energy system shall be submitted by the applicant,
addressing the following:
(a)
The cost of removing the solar energy system (no allowance for
recycle value).
(b)
The time required to decommission and remove the solar energy
system and any ancillary structures.
(c)
The time required to repair any damage caused to the property
by the installation and removal of the solar energy system.
(2)
Security:
(a)
The deposit, execution, or filing with the Town Clerk of cash,
bond, or other form of security reasonably acceptable to the Town
Attorney and/or Engineer, and approved by the Town Board, shall be
in an amount sufficient to ensure the good faith performance of the
terms and conditions of the permit issued pursuant hereto and to provide
for the removal and restoration 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 or Tier 4 solar energy system, to include restoration
costs of the property, with an escalator of 2% annually for the life
of the solar energy system. The decommissioning amount shall not be
reduced by the amount of the estimated salvage value of the solar
energy system.
(b)
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.
(c)
In the event of default or abandonment of the solar energy system,
the system shall be decommissioned as set forth in this article.
|
SAMPLE DECOMMISSIONING PLAN
| |
|
Date: [Date]
| |
|
Decommissioning Plan for [Solar Project Name], located at: [Solar
Project Address]
| |
|
Prepared and Submitted by [Solar Developer Name], the owner
of [Solar Farm Name]
| |
|
As required by Town, [Solar Developer Name] presents this decommissioning
plan for [Solar Project Name] (the "Facility").
| |
|
Decommissioning will occur as a result of any of the following
conditions:
| |
|
1.
|
The land lease, if any, ends.
|
|
2.
|
The system does not produce power for [12] months.
|
|
3.
|
The system is damaged and will not be repaired or replaced.
|
|
The owner of the Facility, as provided for in its lease with
the landowner, shall restore the property to its condition as it existed
before the facility was installed, pursuant to which may include the
following:
| |
|
1.
|
Removal of all operator-owned equipment, concrete, conduits,
structures, fencing, and foundations.
|
|
2.
|
Removal of any solid and hazardous waste caused by the Facility
in accordance with local, state and federal waste disposal regulations.
|
|
3.
|
Removal of all graveled areas and access roads unless the landowner
requests in writing for it to remain.
|
|
All said removal and decommissioning shall occur within [12]
months of the Facility ceasing to produce power for sale.
| |
|
The owner of the Facility, currently [Solar Developer Name],
is responsible for this decommissioning.
| |
|
Facility Owner Signature: _______________________________ Date:________
| |
A.
Solar energy systems and equipment shall be certified under applicable
solar and/or electrical industry standards and comply with the NYS
Uniform Fire Prevention and Building Code.
B.
Solar energy systems shall be maintained in good working order in
accordance with the approved maintenance plan and industry standards.
Maintenance and site access, including snow removal and debris clearance,
shall be performed at a level acceptable to the local fire department
and the Town Building Inspector.
C.
If battery storage is included as part of the solar energy system,
it shall meet requirements of the NYS Uniform Fire Prevention and
Building Code and other local laws, where applicable. When no longer
used, even when the solar energy system remains operational, the battery
storage shall be removed and disposed of in accordance with the laws
and regulations of the Town and any applicable federal, state or county
laws and regulations.
A.
The special exception use 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 by the Planning
Board, within 18 months after approval, the applicant may request
and the Town may extend the time to complete construction for 180
days. If the owner and/or operator fails to perform substantial construction
after 24 months, the approvals shall expire.
B.
Upon cessation of electricity generation of a solar energy system
on a continuous basis for 12 months, the Town may notify and instruct
the owner and/or operator of the solar energy system to implement
the decommissioning plan. The decommissioning plan must be completed
within 360 days of notification.
C.
If the owner and/or operator fails to comply with decommissioning
upon any abandonment, the Town may, at its discretion, utilize the
bond and/or security for the removal of the solar energy system and
restoration of the site in accordance with the decommissioning plan.
Any violation of this solar energy law shall be subject to the
enforcement provisions, including civil and criminal penalties, provided
for in the zoning law of the Town of Newfane.
