Every structure or use not conforming to the
regulations of the district in which it is located at the time of
adoption of this chapter shall be a nonconforming use.
A.
A nonconforming structure or use may not be altered
or resumed except in conformity with the regulations for the district
in which it is located.
B.
A nonconforming use of a structure or land that has
ceased for a consecutive period of 12 months, or for 24 months during
any three-year period, may not be altered, rebuilt or resumed unless
in conformity with the regulations of this chapter.
A.
A nonconforming use may be continued subsequent to
adoption of this chapter, but the structure shall not be enlarged
in a way which increases its nonconformity, and the use shall not
be enlarged or increased to occupy a greater land area.
B.
A nonconforming use may be extended throughout any
part of a building which is manifestly arranged or designed for such
use at the time of adoption of this chapter.
Nothing in this chapter shall be deemed to prevent
the strengthening or restoring to a safe condition of any nonconforming
structure declared unsafe by a duly designated official.
Nothing in this chapter shall be deemed to prevent
the reconstruction or replacement of a nonconforming structure to
its original configuration when destroyed by fire or other natural
disaster.
Whenever an area is transferred from a district
of one classification to a district of a different classification,
or amendments are adopted which change permitted uses or other regulatory
measures governing such, the above regulations shall apply to nonconforming
uses and structures created by such changes.
[Added 11-15-2021 by L.L. No. 4-2021
A.
Authority. This battery energy storage system law is adopted pursuant to Article IX of the New York State Constitution, § 2(c)(6) and (10), New York Statute of Local Governments, § 10(1) and (7); § 7-700 through 7-704 of the Village Law of the State of New York, which authorize the Village of Carthage to adopt zoning provisions that advance and protect the health, safety and welfare of the community.
B.
Statement of purpose. This battery energy storage system law is adopted
to advance and protect the public health, safety, welfare, and quality
of life of the Village of Carthage by creating regulations for the
installation and use of battery energy storage systems, with the following
objectives:
(1)
To provide a regulatory scheme for the designation of properties
suitable for the location, construction and operation of battery energy
storage systems;
(2)
To ensure compatible land uses in the vicinity of the areas
affected by battery energy storage systems;
(3)
To mitigate the impacts of battery energy storage systems on
environmental resources, such as important agricultural lands, forests,
wildlife and other protected resources; and
(4)
To create synergy between battery energy storage system development
and other stated goals of the community pursuant to its Comprehensive
Plan.
C.
ANSI
BATTERY ENERGY STORAGE MANAGEMENT SYSTEM
BATTERY ENERGY STORAGE SYSTEM
(1)
(2)
BATTERY(IES)
CELL
COMMISSIONING
DEDICATED-USE BUILDING
(1)
(2)
(3)
(4)
(a)
(b)
ENERGY CODE
FIRE CODE
NATIONALLY RECOGNIZED TESTING LABORATORY (NRTL)
NEC
NFPA
NON-DEDICATED-USE BUILDING
NONPARTICIPATING PROPERTY
NONPARTICIPATING RESIDENCE
OCCUPIED COMMUNITY BUILDING
PARTICIPATING PROPERTY
UNIFORM CODE
Definitions. As used in this section, the following terms shall have
the meanings indicated:
American National Standards Institute.
An electronic system that protects energy storage systems
from operating outside their safe operating parameters and disconnects
electrical power to the energy storage system or places it in a safe
condition if potentially hazardous temperatures or other conditions
are detected.
One or more devices, assembled together, capable of storing
energy in order to supply electrical energy at a future time, not
to include a stand-alone twelve-volt car battery or an electric motor
vehicle. A battery energy storage system is classified as a Tier 1
or Tier 2 battery energy storage system as follows:
Tier 1 battery energy storage systems have an aggregate energy
capacity less than or equal to 600kWh and, if in a room or enclosed
area, consist of only a single energy storage system technology.
Tier 2 battery energy storage systems have an aggregate energy
capacity greater than 600kWh or are comprised of more than one storage
battery technology in a room or enclosed area.
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 law, batteries utilized in consumer products are excluded from
these requirements.
The basic electrochemical unit, characterized by an anode
and a cathode, used to receive, store, and deliver electrical energy.
A systematic process that provides documented confirmation
that a battery energy storage system functions according to the intended
design criteria and complies with applicable code requirements.
A building that is built for the primary intention of housing
battery energy storage system equipment, is classified as Group F-1
for any successor group that may follow the future occupancy as defined
by International Building Code, and complies with the following:
The building's only use is battery energy storage, energy
generation, and other electrical grid-related operations.
No other occupancy types are permitted in the building.
Occupants in the rooms and areas containing battery energy storage
systems are limited to personnel that operate, maintain, service,
test, and repair the battery energy storage system and other energy
systems.
Administrative and support personnel are permitted in areas
within the buildings that do not contain a battery energy storage
system, provided the following:
The areas do not occupy more than 10% of the building area of
the story in which they are located.
A means of egress is provided from the administrative and support
use areas to the public way that does not require occupants to traverse
through areas containing battery energy storage systems or other energy
system equipment.
The New York State Energy Conservation Construction Code
adopted pursuant to Article 11 of the Energy Law, as currently in
effect and as hereafter amended from time to time.
The fire code section of the New York State Uniform Fire
Prevention and Building Code adopted pursuant to Article 18 of the
Executive Law, as currently in effect and as hereafter amended from
time to time.
A U.S. Department of Labor designation recognizing a private
sector organization to perform certification for certain products
to ensure that they meet the requirements of both the construction
and general industry OSHA electrical standards.
National Electric Code.
National Fire Protection Association.
All buildings that contain a battery energy storage system
and do not comply with the dedicated-use building requirements.
Any property that is not a participating property.
Any residence located on nonparticipating property.
Any building in Occupancy Group A, B, E, I, R, as defined
in the International Building Code, including, but not limited to,
schools, colleges, day-care facilities, hospitals, correctional facilities,
public libraries, theaters, stadiums, apartments, hotels, and houses
of worship.
A battery energy storage system host property or any real
property that is the subject of an agreement that provides for the
payment of monetary compensation to the landowner from the battery
energy storage system owner (or affiliate) regardless of whether any
part of a battery energy storage system is constructed on the property.
The New York State Uniform Fire Prevention and Building Code
adopted pursuant to Article 18 of the Executive Law, as currently
in effect and as hereafter amended from time to time.
D.
Applicability.
(1)
The requirements of this section shall apply to all battery
energy storage systems permitted, installed, or modified in the Village
of Carthage after the effective date of this section, excluding general
maintenance and repair.
(2)
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.
(3)
Modifications to, retrofits or replacements of an existing battery
energy storage system that increase the total battery energy storage
system designed discharge duration or power rating shall be subject
to this section.
E.
General requirements.
(1)
A building permit and an electrical permit shall be required
for installation of all battery energy storage systems.
(2)
Issuance of permits and 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) or any additions thereto.
(3)
All battery energy storage systems, all dedicated-use buildings,
and all other buildings or structures that 1) contain or are otherwise
associated with a battery energy storage system and 2) subject to
the Uniform Code and/or the Energy Code shall be designed, erected,
and installed in accordance with all applicable provisions of the
Uniform Code, all applicable provisions of the Energy Code, and all
applicable provisions of the codes, regulations, and industry standards
as referenced in the Uniform Code, the Energy Code, and the Village
of Carthage Code.
F.
Permitting requirements for Tier 1 battery energy storage systems.
Tier 1 battery energy storage systems shall be permitted in all zoning
districts, subject to the Uniform Code and the "battery energy storage
system permit," and exempt from site plan review.
G.
Permitting requirements for Tier 2 battery energy storage systems.
Tier 2 battery energy storage systems are permitted through the issuance
of a special use permit within the industrial zoning districts and
shall be subject to the Uniform Code and the site plan application
requirements set forth in this section.
(1)
Applications for the installation of a Tier 2 battery energy
storage system shall be:
(a)
Reviewed by the Code Enforcement and Zoning Officer for completeness.
An application shall be complete when it addresses all matters listed
in this section, including, but not necessarily limited to, i) compliance
with all applicable provisions of the Uniform Code and all applicable
provisions of the Energy Code and ii) matters relating to the proposed
battery energy storage system and floodplain, utility lines and electrical
circuitry, signage, lighting, vegetation and tree-cutting, noise,
decommissioning, site plan and development, special use and development,
ownership changes, safety, and permit time frame and abandonment.
Applicants shall be advised within 10 business days of the completeness
of their application or any deficiencies that must be addressed prior
to substantive review.
(b)
Subject to a public hearing to hear all comments for and against
the application. The Planning Board of the Village of Carthage shall
have a notice printed in a newspaper of general circulation in the
Village of Carthage at least five days in advance of such hearing.
Applicants shall have delivered the notice by first-class mail to
adjoining landowners or landowners within 200 feet of the property
at least 10 days prior to such a hearing. Proof of mailing shall be
provided to the Planning Board at the public hearing.
(c)
Referred to the County Planning Department pursuant to General
Municipal Law § 239-m if required.
(d)
Upon closing of the public hearing, the Planning Board shall
take action on the application within 62 days of the public hearing,
which can include approval, approval with conditions, or denial. The
sixty-two-day period may be extended upon consent by both the Planning
Board and applicant.
(2)
Utility lines and electrical circuitry. All on-site utility
lines shall be placed underground to the extent feasible and as permitted
by the serving utility, with the exception of the main service connection
at the utility company right-of-way and any new interconnection equipment,
including, without limitation, any poles, with new easements and right-of-way.
(3)
Signage.
(a)
The signage shall be in compliance with ANSI Z535 and shall
include the type of technology associated with the battery energy
storage systems, any special hazards associated, the type of suppression
system installed in the area of battery energy storage systems, and
twenty-four-hour emergency contact information, including reach-back
phone number.
(b)
As required by the NEC, disconnect and other emergency shutoff
information shall be clearly displayed on a light reflective surface.
A clearly visible warning sign concerning voltage shall be placed
at the base of all pad-mounted transformers and substations.
(4)
Lighting. Lighting of the battery energy storage systems shall
be limited to that minimally required for safety and operational purposes
and shall be reasonably shielded and downcast from abutting properties.
(5)
Vegetation and tree-cutting. Areas within 10 feet on each side
of Tier 2 battery energy storage systems shall be cleared of combustible
vegetation and other combustible growth. Single specimens of trees,
shrubbery, or cultivated ground cover, such as green grass, ivy, succulents,
or similar plants used as ground covers, shall be permitted to be
exempt, provided that they do not form a means of readily transmitting
fire. Removal of trees should be minimized to the extent possible.
(6)
Noise. The one-hour average noise generated from the battery
energy storage systems, components, and associated ancillary equipment
shall not exceed a noise level of 60 dBA as measured at the outside
wall of any nonparticipating residence or occupied community building.
Applicants may submit equipment and component manufacturers noise
ratings to demonstrate compliance. The applicant may be required to
provide operating sound pressure level measurements from a reasonable
number of sampled locations at the perimeter of the battery energy
storage system to demonstrate compliance with this standard.
(7)
Decommissioning.
(a)
Decommissioning plan. The applicant shall submit a decommissioning
plan, developed in accordance with the Uniform Code, to be implemented
upon abandonment and/or in conjunction with removal from the facility.
The decommissioning plan shall include:
[1]
A narrative description of the activities to be
accomplished, including who will perform that activity and at what
point in time, for complete physical removal of all battery energy
storage system components, structures, equipment, security barriers,
and transmission lines from the site;
[2]
Disposal of all solid and hazardous waste in accordance
with local, state, and federal waste disposal regulations;
[3]
The anticipated life of the battery energy storage
system;
[4]
The estimated decommissioning costs and how said
estimate was determined;
[5]
The method of ensuring that funds will be available
for decommissioning and restoration;
[6]
The method by which the decommissioning cost will
be kept current;
[7]
The manner in which the site will be restored,
including a description of how any changes to the surrounding areas
and other systems adjacent to the battery energy storage system, such
as, but not limited to, structural elements, building penetrations,
means of egress, and required fire detection suppression systems,
will be protected during decommissioning and confirmed as being acceptable
after the system is removed; and
[8]
A listing of any contingencies for removing an
intact operational energy storage system from service, and for removing
an energy storage system from service that has been damaged by a fire
or other event.
(b)
Decommissioning fund. The owner and/or operator of the energy
storage system shall continuously maintain a fund or bond payable
to the Village of Carthage, in a form approved by the Village of Carthage,
for the removal of the battery energy storage system, in an amount
to be determined by the Village of Carthage, for the period of the
life of the facility. This fund may consist of a letter of credit
from a State of New York licensed financial institution. All costs
of the financial security shall be borne by the applicant.
(8)
Site plan application. For a Tier 2 battery energy storage system
requiring a special use permit, site plan approval shall be required.
Any site plan application shall include the following information:
(a)
Property lines and physical features, including roads, for the
project site.
(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 battery
energy storage system layout, associated components, and electrical
interconnection methods, with all National Electrical Code compliant
disconnects and over current devices.
(d)
A preliminary equipment specification sheet that documents the
proposed battery energy storage system components, inverters and associated
electrical equipment that are to be installed. A final equipment specification
sheet shall be submitted prior to the issuance of building permit.
(e)
Name, address, and contact information of proposed or potential
system installer and the owner and/or operator of the battery energy
storage system. Such information of the final system installer shall
be submitted prior to the issuance of building permit.
(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 battery energy
storage system.
(g)
Zoning district designation for the parcel(s) of land comprising
the project site.
(h)
Commissioning plan. Such plan shall document and verify that
the system and its associated controls and safety systems are in proper
working condition per requirements set forth in the Uniform Code.
Where commissioning is required by the Uniform Code, battery energy
storage system commissioning shall be conducted by a New York State
(NYS) licensed professional engineer after the installation is complete
but prior to final inspection and approval. A corrective action plan
shall be developed for any open or continuing issues that are allowed
to be continued after commissioning. A report describing the results
of the system commissioning and including the results of the initial
acceptance testing required in the Uniform Code shall be provided
to Zoning Officer prior to final inspection and approval and maintained
at an approved on-site location.
(i)
Fire safety compliance plan. Such plan shall document and verify
that the system and its associated controls and safety systems are
in compliance with the Uniform Code.
(j)
Operation and maintenance manual. Such plan shall describe continuing
battery energy storage system maintenance and property upkeep, as
well as design, construction, installation, testing and commissioning
information and shall meet all requirements set forth in the Uniform
Code.
(k)
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.
(l)
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 NYS licensed
professional engineer.
(m)
Emergency operations plan. A copy of the approved emergency
operations plan shall be given to the system owner, the local fire
department, and local fire code official. A permanent copy shall also
be placed in an approved location to be accessible to facility personnel,
fire code officials, and emergency responders. The emergency operations
plan shall include the following information:
[1]
Procedures for safe shutdown, de-energizing, or
isolation of equipment and systems under emergency conditions to reduce
the risk of fire, electric shock, and personal injuries, and for safe
start-up following cessation of emergency conditions.
[2]
Procedures for inspection and testing of associated
alarms, interlocks, and controls.
[3]
Procedures to be followed in response to notifications
from the battery energy storage management system, when provided,
that could signify potentially dangerous conditions, including shutting
down equipment, summoning service and repair personnel, and providing
agreed upon notification to fire department personnel for potentially
hazardous conditions in the event of a system failure.
[4]
Emergency procedures to be followed in case of
fire, explosion, release of liquids or vapors, damage to critical
moving parts, or other potentially dangerous conditions. Procedures
can include sounding the alarm, notifying the fire department, evacuating
personnel, de-energizing equipment, and controlling and extinguishing
the fire.
[5]
Response considerations similar to a safety data
sheet (SDS) that will address response safety concerns and extinguishment
when an SDS is not required.
[6]
Procedures for dealing with battery energy storage
system equipment damaged in a fire or other emergency event, including
maintaining contact information for personnel qualified to safely
remove damaged battery energy storage system equipment from the facility.
[7]
Other procedures as determined necessary by the
Village of Carthage to provide for the safety of occupants, neighboring
properties, and emergency responders.
[8]
Procedures and schedules for conducting drills
of these procedures and for training local first responders on the
contents of the plan and appropriate response procedures.
(9)
Special use permit standards.
(a)
Setbacks. Tier 2 battery energy storage systems shall comply
with the setback requirements of the underlying zoning district for
principal structures.
(b)
Height. Tier 2 battery energy storage systems shall comply with
the building height limitations for principal structures of the underlying
zoning district.
(c)
Fencing requirements. Tier 2 battery energy storage systems,
including all mechanical equipment, shall be enclosed by an eight-foot-high
non-see-through fence with a self-locking gate to prevent unauthorized
access unless housed in a dedicated-use building and not interfering
with ventilation or exhaust ports.
(d)
Screening and visibility. Tier 2 battery energy storage systems
shall have views minimized from adjacent properties to the extent
reasonably practicable using architectural features, earth berms,
landscaping, or other screening methods that will harmonize with the
character of the property and surrounding area and not interfering
with ventilation or exhaust ports.
(10)
Ownership changes. If the owner of the battery energy storage
system changes or the owner of the property changes, the special use
permit shall remain in effect, provided that the successor owner or
operator assumes, in writing, all of the obligations of the special
use permit, site plan approval, and decommissioning plan. A new owner
or operator of the battery energy storage system shall notify the
Zoning Officer of such change in ownership or operator within 30 days
of the ownership change. A new owner or operator must provide such
notification to the Zoning Officer in writing. The special use permit
and all other local approvals for the battery energy storage system
would be void if a new owner or operator fails to provide written
notification to the Zoning Officer in the required time frame. Reinstatement
of a void special use permit will be subject to the same review and
approval processes for new applications under this section.
H.
Safety.
(1)
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:
(a)
UL 1973 (standard for batteries for use in stationary, vehicle
auxiliary power and light electric rail applications);
(b)
UL 1642 (standard for lithium batteries);
(c)
UL 1741 or UL 62109 (inverters and power converters);
(d)
Certified under the applicable electrical, building, and fire
prevention codes as required;
(e)
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.
(2)
Site access. Battery energy storage systems shall be maintained
in good working order and in accordance with industry standards. Site
access shall be maintained, including snow removal, at a level acceptable
to the local fire department and, if the Tier 2 battery energy storage
system is located in an ambulance district, the local ambulance corps.
(3)
Battery energy storage systems, components, and associated ancillary
equipment shall have required working space clearances, and electrical
circuitry shall be within weatherproof enclosures marked with the
environmental rating suitable for the type of exposure in compliance
with NFPA 70.
I.
Permit time frame and abandonment.
(1)
The special use permit and site plan approval for a battery
energy storage system shall be valid for a period of 24 months, provided
that a building permit is issued for construction and/or construction
is commenced. In the event construction is not completed in accordance
with the final site plan, as may have been amended and approved, as
required by the Planning Board, within 24 months after approval, Village
of Carthage may extend the time to complete construction for 180 days.
If the owner and/or operator fails to perform substantial construction
after 36 months, the approvals shall expire.
(2)
The battery energy storage system shall be considered abandoned
when it ceases to operate consistently for more than one year. If
the owner and/or operator fails to comply with decommissioning upon
any abandonment, the Village of Carthage may, at its discretion, enter
the property and utilize the available bond and/or security for the
removal of a Tier 2 battery energy storage system and restoration
of the site in accordance with the decommissioning plan.
J.
Enforcement. Any violation of this battery energy storage system
law shall be subject to the same enforcement requirements, including
the civil and criminal penalties, provided for in the zoning or land
use regulations of the Village of Carthage.
