Town of Bethel, NY Article VI Nonconforming Uses and Structures

§ 345-35 Continuation.

A use, building or structure lawfully in existence at the effective date of this chapter which shall be made nonconforming at the passage of this chapter or any applicable amendment thereto may be continued, except as otherwise provided in this article.

§ 345-36 Regulation of nonconforming uses.

The following standards shall apply to enlargements, extensions or reconstructions of nonconforming uses:

A. Restoration and reconstruction. Any nonconforming use or structure partially damaged by fire, casualty or act of God may be repaired and used as before, provided that the floor area of such use, building of structure shall not exceed the floor area or building volume which existed prior to such damage. All repairs shall be completed within two years after damages occur or such use shall not be rebuilt except as a conforming use. In the event that total destruction occurs or the Building Inspector orders said use or structure completely rebuilt, then the provisions set forth below shall apply.

(1) Reconstruction. When a nonconforming use or structure is destroyed or damaged or beyond repair or when the owner or tenant of said use or structure desires to rebuild for any reason, the Building Inspector may authorize such reconstruction if the building would not constitute a substantial enlargement of the use or would, on the whole, create greater conformity with this chapter or alleviate an existing nuisance.

(2) Nonconforming residences. Nothing under this article shall prevent any residence from being rebuilt or reconstructed in the event of fire or other disaster. Nothing under this article shall prevent expansion of the floor area of a residence, provided that all required setbacks have been met.

B. Enlargement or expansion. An enlargement or expansion of a nonconforming use is expressly prohibited.

[Amended 10-22-2014 by L.L. No. 2-2014]

C. Repairs.

(1) Normal maintenance repair and incidental alteration of a structure containing a nonconforming use is permitted, provided that it does not extend the area or volume of space occupied by the nonconforming use.

(2) A building or other structure containing residential nonconforming uses may be altered in any way to improve interior livability. No structural alterations shall be made which would increase the number of dwelling units.

D. Prior approval. Nothing herein contained shall require any change in the plans, construction or designated use of a building complying with existing laws, a permit for which shall have been obtained before the date of adoption of this chapter or any applicable amendment thereto, and the ground-story framework of which, including the second tier of beams, shall have been completed within six months of the date of the permit, and which entire building shall have been completed according to such plans as have been filed, within one year of the date of adoption of this chapter or any applicable amendment thereto.

E. Changes and conversions of nonconforming uses.

(1) Basic standard.

(a) There shall be a presumption against changing a nonconforming use to another nonconforming use, except in the case of conversions of seasonal residential communities that are converted to permanent single-family, two-family or multifamily dwellings in accordance with § 345-36E(2) of this Code. Such presumption may be overcome by a finding of the Planning Board that the proposed new nonconforming use serves a compelling social, human services, governmental, recreational, or similar need in the community. The burden to present the necessary factual basis to overcome the presumption shall be on the applicant. Upon establishing the requisite need and overcoming such presumption where required, the applicant may, with special use approval from the Planning Board, convert an existing nonconforming use to another nonconforming use.

(b) In addition to the standards set forth for the approval of special uses set forth at § 345-30I of this Code, the Planning Board may allow by use the conversion or intensification of a nonconforming use to a different nonconforming use or uses that are substantially similar to the existing nonconforming use, upon finding that the proposed use:

[1] Will not adversely affect the surrounding property or uses for reason of a change in the character of any structure; the location and character of any proposed activities or operations; or signs, lighting, noise, dust, refuse, odor, traffic congestion or hours of operation.

[2] Will result in the nonconforming property being kept in as good or better physical condition; thus, preserving property values in the surrounding neighborhood;

[3] Will result in the preservation of structures or open spaces of historical interest or importance where applicable;

[4] Does not require an increase in the size of any building containing the nonconforming use or uses;

[5] Does not encroach upon areas within any building already used for conforming uses; and

[6] Otherwise meets the criteria of § 345-30 of this Code.

(2) Conversions of seasonal residential communities. Existing seasonal residential communities may be converted to permanent single-family, two-family or multifamily dwellings subject to the following standards:

(a) The number of new dwellings permitted shall be limited to 50% of existing seasonal residential units in the case of new single-family dwellings, 65% of existing seasonal residential units in the case of new two-family dwellings and 80% of existing seasonal residential units in the case of new multifamily dwellings, provided that any such property shall be entitled to no less density than would otherwise be permitted within that zoning district for a new use of the same nature.

(b) All sewage and water supply systems for any such conversion shall meet current standards. Existing systems intended for reuse shall be inspected and certified as meeting current standards by a licensed professional engineer and approved by the Town of Bethel. Should the conversion project be located on the Town of Bethel public sewer system and involve increased sewage flows, a certification from the Town Sewer District that adequate capacity exists to serve the new project shall be required.

(c) All such conversion projects shall require, at a minimum, the completion of a full environmental assessment form.

(d) The Planning Board may require inventorying of existing mature trees, existing mature tree preservation, and additional project landscaping and buffering measures to upgrade the appearance of the property. The Planning Board may also require additional public improvements such as sidewalks to facilitate access to the property. The Planning Board shall also be authorized to impose such additional conditions on approval of the conversion project as may be required to ensure it will represent a property improvement and be in harmony with the Comprehensive Plan and existing neighborhood character.

F. Nonconforming lots.

(1) Notwithstanding the provisions of § 345-12 hereof, the owner, including any subsequent owner, of any lot that was eligible to receive a building permit to construct a single-family dwelling on said lot prior to December 13, 2006, shall be entitled to receive a building permit to construct a single-family dwelling on said lot, provided that such lot shall consist of a minimum of 40,000 square feet of lot area, notwithstanding that the current zoning district in which the subject lot is located requires a density greater than 40,000 square feet of lot area for a single-family dwelling.

(2) Notwithstanding the provisions of § 345-36F(1), above, no such building permit shall be granted as provided therein if the applicant for such building permit is the owner of adjacent real property that would otherwise allow for compliance with applicable district density standards.

§ 345-37 Termination.

The discontinuance of a nonconforming use for a period of 24 months and/or the change of use to more restricted or conforming use for any period of time shall be considered an abandonment thereof, and such nonconforming use shall not thereafter be revived. Nonconforming signs shall be subject to § 345-23P, and the balance of the requirements of § 345-23, where applicable.

§ 345-38 Explicitly prohibited uses and activities.

[Added 4-26-2012 by L.L. No. 1-2012]

A. Explicitly prohibited uses.

(1) The following uses and activities (being respectively defined in Subsection C below of this § 345-38) 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:

(a) Injection well;

(b) Land application facility;

(c) Natural gas and/or petroleum exploration activities;

(d) Natural gas and/or petroleum extraction activities;

(e) Natural gas and/or petroleum extraction, exploration or production waste disposal/storage facility;

(f) Natural gas and/or petroleum extraction, exploration or production waste dump;

(g) Natural gas compression facility;

(h) Natural gas processing facility;

(i) Nonregulated pipelines;

(j) Underground injection;

(k) Underground natural gas storage;

(l) High-impact uses;

(m) Hazardous waste landfill (subject to the requirements of New York Environmental Conservation Law § 27-1107); and

(n) Gambling.

(2) Any condition caused or permitted to exist in violation of this Subsection A 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."

B. Prohibition against hazardous waste landfills, dumps, natural gas and/or petroleum extraction, exploration or production waste dumps and natural gas and/or petroleum extraction, exploration or production waste disposal/storage facilities.

(1) The Town of Bethel 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.

(2) It shall be unlawful for any person to operate a natural gas and/or petroleum extraction, exploration or production waste disposal/storage facility, hazardous waste landfill, or dump. The foregoing prohibition regarding the operation of a hazardous waste landfill shall be subject to the requirements of New York Environmental Conservation Law § 27-1107. 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.

C. Defined terms applicable to this § 345-38. For purposes of this § 345-38, the following terms shall have the meanings respectively set forth below:

AGRICULTURE USE

Land used for the production of crops and/or livestock and livestock products (as those terms are defined at § 301 of the New York State Agriculture and Markets Law).

DUMP

The use of real property operated without a permit or other governmental authorization for the disposal of any type of waste, including solid waste, garbage, or trash in which such unwanted materials are deposited, disposed, discharged, injected, placed, buried or discarded without intention of further use.

GAMBLING

A use devoted to the wagering of money or something of material value on a contest of chance or a future contingent event not under the control or influence of those making wagers, upon an agreement or understanding that those making wagers will receive something of value in the event of a certain outcome. Notwithstanding the forgoing definition, gambling shall not include any lottery operated by the State of New York and the sale of lottery tickets in connection therewith as may be authorized and prescribed by the Legislature or any use as may be authorized in accordance with Chapter 97 of the Code, entitled "Bingo," or Chapter 186 of the Code, entitled "Games of Chance."

GATHERING LINE or PRODUCTION LINE

Any system of pipelines (and other equipment such as drip stations, vent stations, pigging facilities, valve box, transfer pump station, measuring and regulating equipment, yard and station piping, and cathodic protection equipment), used to move oil, gas, or liquids from a point of production, treatment facility or storage area to a transmission line, which is exempt from the Federal Energy Regulatory Commission's jurisdiction under Section 1(b) of the Natural Gas Act and which does not meet the definition of a major utility transmission facility under the Public Service Law of New York, Article 7, § 120(2)(b).

HAZARDOUS WASTE

Shall have the meaning set forth at New York Environmental Conservation Law § 27-0901(3).

HAZARDOUS WASTE LANDFILL

The use of real property pursuant to a permit issued by the governmental authority with jurisdiction over its operation as a site for the disposal of hazardous waste through burial or where such wastes are applied to the soil surface or injected into the upper layer of the soil.

HIGH-IMPACT USES

(1) The following uses and activities are specifically declared and defined to be high-impact uses:

(a) Waste-to-energy facilities;

(b) Dumps;

(c) Industrial or manufacturing processes engaged in the production of any products classified under the following North American Industry Classification (NAIC) 2007 system code numbers: veneer, plywood and engineered wood product manufacturing (3212), except for truss manufacturing (321214), which shall not be included as a high-impact use; pulp, paper and paperboard manufacturing (3221); petroleum and coal manufacturing (3241); basic chemical manufacturing (3251); pesticide, fertilizer and other agricultural chemical manufacturing (3253); other chemical products and preparation manufacturing (3259); clay product and refractory manufacturing (3271); glass and glass product manufacturing (3272); cement and concrete manufacturing (3273); lime and gypsum manufacturing (3274); other nonmetallic mineral product manufacturing (3279); iron steel mills and ferroalloy manufacturing (3311); steel product manufacturing from purchased steel (3312); alumina and aluminum production and processing (3313); nonferrous metal (not alum) production and processing (3314); foundries (3315); resin, synthetic rubber, and artificial synthetic fibers and filaments manufacturing (3252); rubber products manufacturing (3262); and leather and allied product manufacturing (3161); provided, however, that notwithstanding the foregoing, manufacturing or industrial processes classified under NAIC system code numbers pottery, ceramics, and plumbing fixture manufacturing (32711); vitreous china, fine earthenware, and other pottery product manufacturing (327112); other pressed and blown glass and glassware manufacturing (327212); glass product manufacturing made of purchased glass (327215); and leather and hide tanning and finishing (316110) shall not be considered a high-impact use if the total number of full and/or part-time employees does not exceed five persons engaged in the manufacturing or industrial process in question and the use is not otherwise a high-impact use as defined in Subsection (1)(d) below; and

(d) Any other use likely to have a significant negative impact upon the environment; or cause or significantly contribute to an increase in mortality; or an increase in serious irreversible, or incapacitating reversible illness; or pose a substantial present or potential hazard to human health due to the nature of its operation, materials used and/or wastes generated. Any use requiring a permit from a state or federal governmental agency, which permit would allow for the discharge, storage, transport, disposal, or release of contamination, shall be evidence of a high-impact use, as determined by the type and volume of contamination. High-impact uses include those uses which have associated therewith any detrimental or obnoxious noise, vibration, smoke, odors, dust, heavy truck traffic, toxic or hazardous raw materials or hazardous wastes, and/or contamination.

(2) For purposes of this chapter, any use, other than a manufacturing use that is defined as a high-impact use by operation of Subsection (1)(d), above, shall not be deemed a high-impact use if it is any of the following:

(a) Agriculture use;

(b) Any use that is specifically articulated in this chapter as allowed by right (within an appropriate zoning district) as a principal permitted or accessory use;

(c) Any use that is specifically articulated in this chapter as allowed (within an appropriate district) as a principal permitted or accessory use by special use permit; or

(d) Any use that is specifically articulated in the Town Code as a permissible use pursuant to a permit issued by the Town and that said use is conducted within an appropriate zoning district.

INJECTION WELL

A bored, drilled or driven shaft whose depth is greater than the largest surface dimension, or a dug hole whose depth is greater than the largest surface dimension, through which fluids (which may or may not include semisolids) are injected into the subsurface and 90% or more of such fluids do not return to the surface within a period of 90 days. The definition of injection wells does not include:

(1) Any on-site wastewater treatment system, as that term is defined at § 257-46 of the Town Code;

(2) Drainage wells, swales, or ditches used to drain surface fluids, primarily storm runoff, into the ground;

(3) Geothermal wells associated with the recovery of geothermal energy for heating or production of electric power;

(4) Any agriculture use; or

(5) Bore holes drilled to produce potable water to be used as such.

LAND APPLICATION FACILITY

A site where any hazardous wastes or natural gas and/or petroleum extraction, exploration or production wastes are applied to the soil surface or injected into the subsurface.

NATURAL GAS

Methane or any other gaseous substance, either combustible or noncombustible, which is produced in a natural state from the earth and which maintains a gaseous or rarefied state at standard temperature and pressure conditions, and/or gaseous components or vapors occurring in or derived from petroleum or other hydrocarbons.

NATURAL GAS AND/OR PETROLEUM EXPLORATION ACTIVITIES

Geologic or geophysical activities related to the search for natural gas, petroleum or other subsurface hydrocarbons including prospecting, geophysical and geologic seismic surveying and sampling techniques, but only to the extent that such activities involve or employ core, rotary, or any other type of drilling or otherwise making any penetration or excavation of any land or water surface in the search for and evaluation of natural gas, petroleum, or other subsurface hydrocarbon deposits.

NATURAL GAS AND/OR PETROLEUM EXTRACTION ACTIVITIES

The digging or drilling of a well for the purposes of exploring for, developing or producing natural gas, petroleum or other subsurface hydrocarbons, including without limitation any and all forms of shale fracturing.

NATURAL GAS AND/OR PETROLEUM EXTRACTION, EXPLORATION OR PRODUCTION WASTES

(1) Any of the following in any form, and whether or not such items have been excepted or exempted from the coverage of any federal or state environmental protection laws, or have been excepted from statutory or regulatory definitions of "industrial waste," "hazardous," or "toxic," and whether or not such substances are generally characterized as waste:

(a) Radioactive material spoils;

(b) Crude oil or natural gas drilling fluids;

(c) Crude oil or natural gas exploration, drilling, production or processing wastes;

(d) Crude oil or natural gas drilling treatment wastes (such as oils, frac fluids, produced water, brine, flowback, sediment and/or any other liquid or semiliquid material);

(e) Any chemical, waste oil, waste emulsified oil, mud, or sediment that was used or produced in the drilling, development, transportation, processing or refining of crude oil or natural gas;

(f) Soil contaminated in the drilling, transportation, processing or refining of crude oil or natural gas;

(g) Drill cuttings from crude oil or natural gas wells; or

(h) Any other wastes associated with the exploration, drilling, production or treatment of crude oil or natural gas.

(2) This definition specifically intends to include some wastes that may otherwise be classified as solid wastes which are not hazardous wastes under 40 CFR 261.4(b).

(3) The definition of natural gas and/or petroleum extraction, exploration or production wastes does not include animal manure and/or recognizable and nonrecognizable food wastes, waste generated by agriculture use, or waste generated by a public utility facility.

NATURAL GAS AND/OR PETROLEUM EXTRACTION, EXPLORATION OR PRODUCTION WASTE DISPOSAL/STORAGE FACILITY

Any of the following: tanks of any construction (metal, fiberglass, concrete, etc.); impoundments; pits; evaporation ponds; or other facilities, in any case used for the storage or treatment of natural gas and/or petroleum extraction, exploration or production wastes that are being held for initial use, have been used and are being held for subsequent reuse or recycling, are being held for treatment, or are being held for storage.

NATURAL GAS AND/OR PETROLEUM EXTRACTION, EXPLORATION OR PRODUCTION WASTE DUMP

Land upon which natural gas and/or petroleum extraction, exploration or production wastes, or their residue or constituents before or after treatment, are deposited, disposed, discharged, injected, placed, buried or discarded, without any intention of further use.

NATURAL GAS COMPRESSION FACILITY

Those facilities or combination of facilities that move natural gas or oil from production fields or natural gas processing facilities in pipelines or into storage; the term shall include equipment for liquids separation, natural gas dehydration, and tanks for the storage of waste liquids and hydrocarbon liquids.

NATURAL GAS PROCESSING FACILITY

Those facilities that separate and recover natural gas liquids (NGLs) and/or other nonmethane gases and liquids from a stream of produced natural gas, using equipment for any of the following: cleaning or stripping gas, cooking and dehydration, residual refinement, treating or removing oil or condensate, removing water, separating NGLs, removing sulfur or carbon dioxide, fractionation of NGLs, or the capture of CO₂ separated from natural gas streams.

NONREGULATED PIPELINES

Those pipelines that are exempt or otherwise excluded from regulation under federal and state laws regarding pipeline construction standards or reporting requirements. Specifically includes production lines and gathering lines. Notwithstanding the foregoing, nonregulated pipelines are not intended, and shall not be construed, to 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 any legal residential, business, commercial, or other uses within the Town, including any agriculture use, so long as such uses do not involve any natural gas and/or petroleum exploration activities, or natural gas and/or petroleum extraction activities.

PIPELINE

All parts of those physical facilities through which petroleum, natural gas, other gaseous substances, hazardous liquids, or chemicals move in transportation (including pipes, valves and other equipment and appurtenances attached to pipes and other equipment such as drip stations, vent stations, pigging facilities, valve boxes, transfer pump stations, measuring and regulating equipment, yard and station piping, and cathodic protection equipment) whether or not laid in public or private easement or private right-of-way within the Town. This term includes, without limitation, gathering lines, production lines, and transmission lines.

PUBLIC UTILITY

An enterprise that provides electric, gas, steam, telephone service, water or sewerage directly to the general public. For purposes hereof, a public utility is an entity which operates as a monopoly, and whose rates charged to customers are established by a utility commission.

PUBLIC UTILITY FACILITY

Buildings, structures, and facilities, including generating and switching stations, poles, lines, pipes, regulated pipelines, pumping stations, repeaters, antennas, transmitters and receivers, valves, owned and operated by a public utility and relating to the furnishing of utility services to the public by that public utility.

RADIOACTIVE MATERIAL

Material in any form that emits radiation, but only if such material has been moved from its naturally occurring location through an industrial process.

RADIOACTIVE MATERIAL SPOILS

Radioactive material consisting of drill spoils or soil produced through the excavation or drilling of land and related to, arising in connection with, or produced by or incidental to the exploration for, the extraction or production of, or the processing, treatment, or transportation of, natural gas, petroleum, or any related hydrocarbons.

RADIATION

The spontaneous emission of particles (alpha, beta, neutrons) or photons (gamma) from the nucleus of unstable atoms as a result of radioactive decay.

SUBSURFACE

Below the surface of the earth, or of a body of water, as the context may require.

TRANSMISSION LINE

A pipeline that transports oil, gas, or water to end users as a public utility and which is subject to regulation either by the Federal Energy Regulatory Commission's jurisdiction under Section 1(b) of the Natural Gas Act, or as a major utility transmission facility under the Public Service Law of New York, Article 7, § 120(2)(b).

UNDERGROUND INJECTION

Subsurface emplacement of hazardous wastes or natural gas and/or petroleum extraction, exploration or production wastes by or into an injection well.

UNDERGROUND NATURAL GAS STORAGE

Subsurface storage, including in depleted gas or oil reservoirs and salt caverns, of natural gas that has been transferred from its original location for the primary purpose of load balancing the production of natural gas. Includes compression and dehydration facilities, and pipelines.

WASTE-TO-ENERGY FACILITY

A plant or facility that creates energy in the form of electricity or heat from the incineration of solid waste or recycled material.

WATER or WATER RESOURCES

All streams, ditches, lakes, ponds, reservoirs, marshes, vernal pools, watercourses, waterways, wells, springs, drainage systems, and all other bodies or accumulations of water, surface or underground, intermittent or perennial, which are contained in, flow through or border upon the Town or any portion thereof.

§ 345-39 Solar energy systems.

[Added 2-22-2017 by L.L. No. 1-2017]

A. Purpose. The purpose of this section is to provide standards to facilitate the development and operation of solar energy systems in the Town of Bethel, subject to the following process and other reasonable conditions that will protect the public health, safety and welfare.

B. Applicability. The requirements of this section shall apply to all solar energy systems proposed, operated, modified, or constructed after the effective date of this section, but excluding general maintenance and repair of solar energy systems constructed prior to the effective date of this section and building-integrated photovoltaic systems.

C. Special definitions. The following definitions are applicable to § 345-39:

QUALIFIED SOLAR INSTALLER

A person listed as an eligible photovoltaic installer by the New York State Energy Research and Development Authority (NYSERDA) or who is listed as a certified solar installer by the North American Board of Certified Energy Practitioners (NABCEP) shall be deemed to be a qualified solar installer for the purposes of this section.

SOLAR ACCESS AREA

A space open to the sun, mostly clear of overhangs or shade, that allows the use of solar energy systems on real property.

SOLAR ARRAY

A group of multiple solar panels or modules linked into a single unit or system.

SOLAR COLLECTOR

A photovoltaic cell, panel, solar array, or other device that converts solar radiation into electricity or transfers solar energy to air, water, or another storage medium.

SOLAR EASEMENT

A written easement recorded pursuant to the New York Real Property Law § 335-b, the purpose of which is to procure the right to receive direct sunlight across real property to operate a solar energy system.

SOLAR ENERGY SYSTEM

A combination of components that utilize solar radiation (direct, diffuse, or reflected) to produce energy designed to provide heating, cooling, hot water and/or electricity, including, without limitation, solar panels and facilities, solar arrays, solar collectors, and solar thermal systems and facilities. Solar energy systems shall be classified as follows:

(1) Roof-mounted solar energy system: a solar photovoltaic or solar thermal system that is mounted on the roof of the building to which it provides heating, cooling, hot water and/or electricity. This definition shall not prohibit the sale of excess electricity pursuant to state-authorized net metering regulations.

(2) Small-scale ground-mounted solar energy system: a solar energy system consisting of solar panels that are properly secured by anchors or ballasts to the ground and attached to poles or other mounting systems, detached from any other structure, for the primary purpose of producing heating, cooling, hot water and/or electricity for on-site consumption or use at the existing residence, farm, business or commercial establishment; notwithstanding the foregoing, this definition shall not prohibit the sale of excess electricity pursuant to state-authorized net metering regulations.

(3) Large-scale ground-mounted solar energy system: a solar energy system consisting of solar panels that are properly secured by anchors or ballasts to the ground and attached to poles or other mounting systems, detached from any other structure, for the primary purpose of producing electricity for off-site sale or consumption.

(4) Building-integrated photovoltaic system: a combination of photovoltaic building components integrated into any building envelope system such as vertical facades including glass and other facade material, semitransparent skylight systems, roofing materials and shading over windows.

SOLAR PANEL

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

SOLAR THERMAL SYSTEMS

Systems that collect and convert solar radiation into forms of energy for water heating, space heating, or space cooling.

D. General provisions.

(1) Qualified installations. No solar energy system may be constructed, installed, replaced or modified except by a qualified solar installer; provided, however, that homeowners may install their own solar energy systems. Any system installed by a qualified installer and/or homeowner must be inspected and approved by a qualified third-party electrical inspector approved by the Town of Bethel and, if connected to the local electric utility system grid, approved by the appropriate utility.

(2) Government approval. The owner or operator of a solar energy system shall establish to the satisfaction of the Town Code Enforcement Officer (for a roof-mounted solar energy system or a small-scale ground-mounted solar energy system) or the Town of Bethel Planning Board (for a large-scale ground-mounted solar energy system) that all applicable governmental agencies with jurisdiction over the installation and operation of such solar energy system have provided all permissions, approvals and required inspections necessary to install and operate such system.

(3) Limitations.

(a) Nothing in this § 345-39 shall be deemed to allow any solar energy system owner or operator the right to remove any trees, vegetation or other obstruction located on any real property over which said owner or operator does not have fee title or a solar easement.

(b) Nothing in this § 345-39 shall be deemed a guarantee against any future construction or improvements or Town approvals for future construction or improvements that may impede the sunlight flow to any solar energy system.

(c) It shall be the sole responsibility of the solar energy system owner or operator to acquire any necessary solar easements or other appropriate land use rights in order to provide for and maintain appropriate solar access areas.

(4) Location. The location of small-scale or large-scale ground-mounted solar energy systems shall be one demonstrably suitable and sized for such use, including, but not limited to, i) the proper drainage and provisions for stormwater control such that the amount of water leaving the site after development shall not be greater than prior to development, and ii) the ability to adequately buffer such use from any adjacent residential uses.

(5) Abandonment, cessation of operations and decommissioning.

(a) Abandonment or cessation; order to remove and restore. Small- and large-scale ground-mounted solar energy systems shall be considered abandoned or to have ceased operations if there has been no electrical energy generation for three months or longer; provided, however, that applications for extensions of time may be approved by the Town Code Enforcement Officer for a period of up to an additional three months. If the owner or operator determines to abandon or cease operations, said owner or operator shall so notify the Town Code Enforcement Officer in writing. Failure to provide the notice required herein shall be a violation of this section. Whether or not the notice required by this subsection is received by the Town Code Enforcement Officer, if the Town Code Enforcement Officer has reason to believe that such system has been abandoned or ceased operation, he/she may issue an order that the owner or operator of the system shall remove said system, including all equipment, mounts, solar arrays and solar collectors, and restore the property, by no later than 90 days after the date of issuance of said order to undertake such removal. Service of the order shall be at the address provided by the applicant to the Town Code Enforcement Officer.

(b) Investigation and report. When, in the opinion of the Town Code Enforcement Officer, any small- or large-scale ground-mounted solar energy system shall have been abandoned or ceased operations in accordance with § 345-39D(5)(a), and the owner/operator thereof fails to comply with an order to remove and restore as set forth in § 345-39D(5)(a), the Code Enforcement Officer shall make a formal inspection thereof and report in writing to the Town Board his/her findings and recommendations in regard to its removal.

(c) Order for hearing on removal and restoration; assessment of costs; time limits. The Town Board shall thereupon consider said report, and, if it finds that such small- or large-scale ground-mounted solar energy system has been abandoned or ceased to operate as set forth in § 345-39D(5)(a), it shall by resolution order removal and restoration and shall further order that a hearing be held before the Town Board at a time and place therein specified and on at least five days' notice to the property owner and/or owner/operator of the small- or large-scale solar energy system or persons having an interest therein. Such hearing shall be to determine whether said order to remove and restore shall be affirmed, modified or vacated and, in the event of affirmance or modification, to assess all costs and expenses incurred by the Town in the inspection and report against the land on which such small- or large-scale ground-mounted solar energy system is located and/or, for a large-scale ground-mounted solar energy system, said expenses may be assessed against any surety held by the Town. Said order shall also provide that the removal of the small- or large-scale ground-mounted solar energy system and restoration of the property shall commence within 30 days after service of notice and shall be completed within 60 days thereafter.

(d) Contents of notice. The notice shall contain the following statements:

[1] The name of the owner or person in possession of the underlying parcel of property as it appears in tax and deed records;

[2] The name of any owner/operator of a large-scale ground-mounted solar energy system as set forth in a filed decommissioning plan, as required by § 345-39G(5);

[3] A brief description of the small- or large-scale ground-mounted solar energy system, as well as the underlying parcel of property upon which it is situated;

[4] A description of the basis of the finding that the small- or large-scale ground-mounted solar energy system has been abandoned or ceased operation;

[5] An order requiring that the small- or large-scale ground-mounted solar energy system be removed and property restored;

[6] That the removal of such small- or large-scale ground-mounted solar energy system and property restoration shall commence within 30 days of the service of notice and shall be completed within 60 days thereafter;

[7] The time and date of a hearing to be held before the Town Board, at which hearing the property owner and/or owner/operator of the small- or large-scale ground-mounted solar energy system shall have the right to contest the order and findings of the Town Board; and

[8] That in the event that such property owner and/or owner/operator of said small- or large-scale ground-mounted solar energy system, or other person having an interest in said premises, shall fail to contest such order and fail to comply with the same, the Town Board will order the removal of such system and property restoration by the Town. For small-scale ground-mounted solar energy systems, the Town Board will further order that all costs and expenses incurred in such removal and restoration be assessed against the land on which the system is located in the same manner as general Town taxes. For large-scale ground-mounted solar energy systems, the Town Board will order that all costs and expenses incurred in such removal and restoration be assessed against any surety held by the Town and, in the event that the costs and expenses of removal and restoration are not satisfied by the surety held, that such unsatisfied costs and expenses be assessed against the land on which such system is located in the same manner as general Town taxes.

(e) Service and filing of notice.

[1] A copy of said notice shall be personally served upon the property owner and/or owner/operator of the small- or large-scale ground-mounted solar energy system or some one of their executors, legal representatives, agents, lessees or other person(s) having a vested or contingent interest in the premises as shown by the Collector of Taxes and/or the office of the Sullivan County Clerk or Sullivan County Treasurer and/or as set forth in any filed decommissioning plan.

[2] If no such person can reasonably be found for personal service, then a copy of said notice shall be mailed to such person by certified mail addressed to his/her last known address, as shown on said records, and by personally serving a copy of said notice upon any adult person residing in or occupying said premises or by securely affixing a copy of said notice upon said small- or large-scale ground-mounted solar energy system.

[3] A copy of said notice shall be filed in the Sullivan County Clerk's office in the same manner as a notice of pendency pursuant to Article 65 of the Civil Practice Law and Rules and shall have the same effect as a notice of pendency as therein provided. A notice so filed shall be effective for a period of one year from the date of filing. It may be vacated, however, upon an order of a judge or justice of a court of record or upon the consent of the Town Attorney. When vacated, the Sullivan County Clerk shall mark such notice, and any record or docket thereof, as canceled of record upon the presentation and filing of such consent or a certified copy of such order.

(f) Hearing. The Town Board shall conduct the public hearing at the time and place specified in the notice to remove and restore. It may adjourn the hearing, from time to time, until all interested parties are heard and until the hearing is completed. At the conclusion of the hearing, the Town Board shall determine by resolution to revoke the order to remove and restore, modify said order or continue and affirm said order and direct the owner or other persons to complete the work within the time specified in the order or such other time as shall be determined by the Town Board.

(g) Failure to comply. In the event of the refusal, failure or neglect of the owner or person so notified to comply with said order of the Town Board within the time specified in said order, and after the public hearing, the Town Board shall provide that such small- or large-scale ground-mounted solar energy system be removed and the property restored by Town employees or by independent contractors. Except for emergency cases as herein provided, any contract for removal and restoration shall be subject to Town of Bethel procurement guidelines.

(h) Assessment of expenses. All expenses incurred by the Town in connection with the proceedings to remove a small-scale ground-mounted solar energy system and restore the property, including the costs of actual removal, shall be assessed against the land on which such system is located and shall be levied and collected in the same manner as provided in Article 15 of the Town Law for the levy and ad valorem levy. All expenses incurred by the Town in connection with the proceedings to remove a large-scale ground-mounted solar energy system and restore the property, including the costs of actual removal, shall be assessed against any surety held by the Town and, should said expenses not be satisfied by the surety, any unsatisfied expenses shall be assessed against the land on which such system is located and shall be levied and collected in the same manner as provided in Article 15 of the Town Law for the levy and ad valorem levy.

(i) Emergency cases. Where it reasonably appears that there is a clear and imminent danger to the life, safety or health of any person or property unless a small- or large-scale ground-mounted solar energy system is removed and the property restored, the Town Board may, by resolution, authorize the Town Code Enforcement Officer to immediately cause the removal of such system and restoration of the property. The expenses of such removal and restoration shall be a charge against the land on which it is located and/or a surety and shall be assessed, levied and collected as provided in § 345-39D(5)(h) and G(5)(f).

(j) Additional requirements. Additional abandonment and decommissioning requirements shall apply to large-scale ground-mounted solar energy systems as set forth at § 345-39G(5).

(6) New York Real Property Tax Law provisions. The Town elects not to opt out of the tax exemption provisions of § 487 of the New York Real Property Tax Law, but reserves its right to do so in the future. Owners, operators and landowners who intend to construct or operate a solar energy system will be subject to Article IX of Chapter 310, Taxation, of the Town Code.

(7) Expert and professional fees. Any reasonable expert or professional fees incurred by the Town Board, Town Planning Board, Town Code Enforcement Officer or Town Zoning Board of Appeals that are related to i) the review of any application for a building permit, special use permit or site plan review for a solar energy system; or ii) the monitoring or inspection of any solar energy system shall be paid by the applicant as provided by Town Code § 345-60.

E. Roof-mounted solar energy systems.

(1) Roof-mounted solar energy systems are permitted in all zoning districts as an accessory use, provided such systems comply with the requirements of § 345-39D and this § 345-39E.

(2) Roof-mounted solar energy systems shall include such systems mounted on the top of a structure either as flush-mounted systems or as solar panels fixed to frames located on a roof and mounted at an optimal angle towards the sun.

(3) Roof-mounted solar energy systems may be mounted on a principal and/or accessory structure and shall not be more than two feet higher than the highest point of the roof of the structure to which such system is mounted.

(4) A building permit applicant for a roof-mounted solar energy system shall comply with the permit application requirements of the Town's unified solar permit or standard permit, as applicable.

F. Small-scale ground-mounted solar energy systems.

(1) Small-scale ground-mounted solar energy systems are permitted in all zoning districts as an accessory use, provided such systems comply with the requirements of § 345-39D and this § 345-39F. Notwithstanding this classification, such accessory uses may be placed on a lot separate from the principal use they serve, provided such lots are owned by the same party, and further provided that the principal use is located on a contiguous parcel located in the Town of Bethel or an adjoining municipality.

(2) All small-scale ground-mounted solar energy systems shall not exceed a height of 10 feet when located 12 feet or less from a lot line and a maximum height of 12 feet when located more than 12 feet from a lot line. All height measurements shall be calculated when the ground-mounted solar energy system is oriented at maximum tilt.

(3) Small-scale ground-mounted solar energy systems shall be limited to the minimum lot size, maximum lot coverage, setback requirements and other restrictions as apply to residential structures of the zoning district in which the system is sited. In the Airport District, small-scale ground-mounted solar energy systems shall be limited to the minimum lot size, maximum lot coverage, setback requirements and other restrictions as apply to light industry. In the H-17B District, small-scale ground-mounted energy systems shall be limited to the maximum lot coverage, setback requirements and other restrictions as apply to hotels/motels with public sewer. The total surface area covered by the solar panels, regardless of the mounted angle, shall be included in determining lot coverage.

(4) All small-scale ground-mounted solar energy systems are subject to site plan review and approval by the Town Code Enforcement Officer, who may, in his/her discretion, refer the site plan review to the Town Planning Board for its review and approval. Notwithstanding the foregoing, small-scale ground-mounted solar energy systems to be located on farmland, as defined in the State Agriculture and Markets Law, shall be subject solely to site plan review and approval by the Town Code Enforcement Officer and shall not be subject to review and approval by the Town Planning Board. An applicant for a small-scale ground-mounted solar energy system shall comply with the permit application requirements of the Town. A small-scale ground-mounted solar energy system, and related structures and equipment, must be adequately screened, if necessary, from adjacent properties.

G. Large-scale ground-mounted solar energy systems.

(1) General application. Large-scale ground-mounted solar energy systems are permitted in all zoning districts as a special use subject to the requirements of § 345-39D and this § 345-39G.

(2) Special use and site plan requirements. Large-scale ground-mounted solar energy systems require a special use permit issued in accordance with Town Code § 345-30 and a site plan prepared and approved in accordance with Town Code § 345-31. Site plans must include those applicable items set forth in the Town Code §§ 345-30 and 345-31, as well as the following:

(a) A description of the solar energy system and the technical, economic and other reasons for the proposed location and design;

(b) 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;

(c) All proposed changes to the landscape of the site, including, without limitation, grading, vegetation clearing and planting, exterior lighting, screening vegetation or structures;

(d) A confirmation that the solar energy system complies with all applicable local, state and federal laws and regulations;

(e) Equipment specification sheets of the major system components to be used, including, without limitation, photovoltaic panels, mounting systems, batteries, and inverters;

(f) An operation and maintenance plan that shall include measures for maintaining safe access to the installation, general procedures for operation and maintenance of the solar energy system, and procedures for property upkeep;

(g) Location of the nearest residential structures on the site and on any adjacent site, and the distance from the nearest proposed solar energy system equipment to any such residential structures;

(h) If the property of the proposed large-scale ground-mounted solar energy system project is to be leased, legal consent among all parties specifying the use(s) of the land for the duration of the project, including easements and other agreements, to include, but not limited to, any leases, shall be submitted to the Town Planning Board.

(i) 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) A construction schedule describing commencement and completion dates, including a traffic analysis with a description of the routes to be used by construction and delivery vehicles;

(k) A list of real property owners located within 500 feet of the property line of the proposed site and the mailing address of each real property owner;

(l) A Full Environmental Assessment Form, as provided by the New York State Environmental Quality Review Act (SEQRA); and

(m) Compliance with the provisions of Town Code § 310-39.

(3) Minimum design standards. Large-scale ground-mounted solar energy systems shall conform to the following minimum standards:

(a) The system shall comply with minimum lot size, maximum lot coverage, setback requirements and other restrictions as apply to residential structures within the zoning district where the solar energy system is sited. In the Airport District, the system shall comply with minimum lot size, maximum lot coverage, setback requirements and other restrictions as apply to light industry. In the H-17B District, the system shall comply with minimum lot size, maximum lot coverage, setback requirements and other restrictions as apply to hotels/motels with public sewer. The total surface area covered by the solar panels, regardless of the mounted angle, shall be included in determining lot coverage;

(b) All large-scale ground-mounted solar energy systems shall not exceed a height of 10 feet when located 12 feet or less from a lot line and a maximum height of 12 feet when located more than 12 feet from a lot line. All height measurements shall be calculated when the ground-mounted solar energy system is oriented at maximum tilt;

(c) All large-scale ground-mounted solar energy systems shall be enclosed by fencing to prevent unauthorized access. The type, height and color of fencing shall be approved by the Town Planning Board. The fencing and the solar energy system may be further screened by year-round landscaping to avoid adverse aesthetic impacts as required by the Town Planning Board;

(d) Town Code § 345-21A though I, inclusive, shall be applicable to large-scale ground-mounted solar energy systems;

(e) There shall be no signs posted on the real property of the large-scale ground-mounted solar energy system except announcement signs, such as "no trespassing," or warning signs, such as "high voltage" or "danger." Notwithstanding the foregoing, a sign shall be posted at the entrance of the parcel in question that identifies the owner and operator of the solar energy system and provides an emergency telephone number where the owner and/or operator can be reached on a twenty-four-hour basis. In addition, a clearly visible warning sign denoting high voltage must be placed at the base of all pad-mounted transformers and substations. All signs are subject to the requirements of Town Code § 345-23; and

(f) If the property of the proposed large-scale ground-mounted solar energy system project is to be leased, legal consent among all parties specifying the use(s) of the land for the duration of the project, including easements and other agreements, shall be submitted to the Town Planning Board.

(4) Additional conditions.

(a) The large-scale ground-mounted solar energy system owner or operator shall provide a copy of the project summary, electrical schematic and site plan to the local Fire Department. The owner or operator shall cooperate with local emergency services in developing an emergency response plan and provide proof of approval thereof. All means of shutting down the solar system shall be clearly marked, and instructions shall be provided to the local Fire Department. The owner or operator shall identify a person responsible for responding to safety inquiries throughout the life of the system.

(b) The owner or operator of a large-scale ground-mounted solar energy system shall maintain it in good condition and in accordance with industry standards. Maintenance shall include, but not be limited to, painting, structural repairs, mowing, trimming and landscape maintenance, and such examinations and repairs as necessary to ensure the integrity of all equipment and structures. The said owner or operator shall maintain and keep in good repair all approved security measures that govern the site, including, but not limited to, fence painting and repair, lighting and any alarm systems. Site access shall be maintained at a level acceptable to the local Fire Department and, if the large-scale solar energy system is located in an ambulance district, the local ambulance corps.

(c) Use of herbicides at the parcel in question to control plant growth in and around the large-scale ground-mounted solar energy system, and its components and equipment, shall be prohibited without the express prior written authorization of the Town Planning Board.

(5) Abandonment and decommissioning. All applications for a large-scale ground-mounted solar system shall be accompanied by a decommissioning plan to be implemented upon abandonment or cessation and/or in conjunction with removal of the large-scale ground-mounted solar energy system. Compliance with this plan shall be made a condition of the issuance of a special use permit under this § 345-39G. The decommissioning plan must specify that after the large-scale ground-mounted solar energy system has been abandoned, ceased operations or can no longer be used, it shall be removed by the applicant or any subsequent owner. Prior to removal of such solar energy system, a permit for removal activities shall be obtained from the Town Code Enforcement Officer. The decommissioning plan shall include details on how the applicant plans to address the following requirements:

(a) The manner in which the owner, operator, or its successors in interest will remove the large-scale ground-mounted solar energy system in accordance with the requirements of § 345-39D(5);

(b) The time to complete any decommissioning, removal and restoration of the large-scale ground-mounted solar energy system and the property on which it is sited;

(c) A demonstration as to how the removal of all infrastructure and the remediation of soil and vegetation shall be conducted to return the parcel to its original state as it existed prior to construction of the system;

(d) A description of the means and location of disposal of all solid and hazardous waste in accordance with local, state and federal waste disposal regulations;

(e) A description of site stabilization and/or revegetation measures necessary to minimize erosion; and

(f) Absent notice of a proposed date of decommissioning and written notice of extenuating circumstances, the decommissioning plan shall provide that the large-scale ground-mounted solar energy system shall be considered abandoned if construction is not completed, the system does not become operational and/or, once operational, it ceases operations for more than three consecutive months. The decommissioning plan shall also provide that if the owner or operator of the large-scale ground-mounted solar energy system fails to remove it in accordance with the requirements of this section within 90 days of abandonment or the proposed date of decommissioning, the Town may enter the property and physically remove the installation at the expense of the property owner or against any financial surety assigned to the Town as provided for in § 345-39D(5).

(6) Cessation of operation. Nonfunction or lack of operation of the large-scale ground-mounted solar energy system may be established: i) through reports submitted by or on behalf of its owner or operator to the Public Service Commission, NYSERDA, the local utility or the New York Independent System Operator; or ii) by lack of income generation for a commercial enterprise. The owner or operator of a large-scale ground-mounted solar energy system shall promptly furnish, on request, such records as required by the Town Code Enforcement Officer to establish that the large-scale ground-mounted solar energy system is functioning or in operation.

(7) Estimate and financial surety.

(a) The applicant for a special use permit to site and operate a large-scale ground-mounted solar energy system shall provide an estimate, prepared by a professional engineer licensed in the State of New York, setting forth the projected costs associated with decommissioning the system in question, consistent with an approved decommissioning plan as set forth in § 345-39G(5). Cost estimations shall account for inflation. Said estimate shall be subject to approval by the Planning Board.

(b) Security for decommissioning any large-scale ground-mounted solar energy system shall be furnished to the Town in an amount and form to be determined by the Town Board. Such security shall be posted with the Town prior to the issuance of any building permit for construction of any portion of said large-scale ground-mounted solar energy system. The security shall be available to and held by the Town during the projected life of the large-scale ground-mounted solar energy system in question and until proof of successful decommissioning and payment of all expenses thereof has been submitted to the Town.

(c) If the large-scale ground-mounted solar energy system is not decommissioned after it is no longer in use, abandoned during its useful lifetime or never completely constructed, the Town of Bethel may use the security to decommission the large-scale ground-mounted solar energy system and to restore the property. The Town may use the security notwithstanding that the notice required pursuant to § 345-39D(5) has not been given by the system's owner or operator. Prior to using the security, the Town Code Enforcement Officer must serve the order required by § 345-39D(5) and wait for the termination of the ninety-day period required by that subsection.

(8) Issuance of special use permit.

(a) The special use permit application and approval process shall be governed by § 345-30 of the Town Code.

(b) If the special use permit application is approved, the Town Code Enforcement Officer may issue a building permit upon satisfaction of all requirements necessary for the issuance of said permit, including compliance with applicable portions of the New York State Building Code.

(c) The Town Planning Board may, in its discretion, waive certain requirements of § 345-39G otherwise applicable to a large-scale ground-mounted solar energy system that it believes is compatible with land uses in the area where it is proposed to be built and where, because of its size, ownership model or other considerations, the Town Planning Board finds that the large-scale ground-mounted solar energy system does not need to be subjected to all of the special use permit and site plan regulations imposed by § 345-39G.

(d) The Town Planning Board may impose any additional conditions on its approval of any special use permit under this section in order to enforce the standards set forth in §§ 345-39D, 345-39G, 345-30, and 345-31 or in order to discharge its obligations under the State Environmental Quality Review Act.

§ 345-40 through § 345-47. (Reserved)