[Added 2-6-2017 by L.L.
No. 1-2017; amended 8-30-2021 by L.L. No. 4-2021]
This zoning for solar energy systems is adopted pursuant to §§ 261
through 263 of the Town Law of the State of New York, which authorizes
the Town of Wheatfield to adopt zoning provisions that advance and
protect the health, safety, and welfare of the community and to make
provisions for, so far as conditions may permit, the accommodations
of solar energy systems and equipment.
The Town Board of the Town of Wheatfield makes the following
findings:
A.
The Town Board of the Town of Wheatfield, recognizing that solar
energy is a clean, readily available, and renewable energy source
that decreases energy costs and provides local business and job opportunities,
intends to accommodate, and encourage the use of solar energy systems.
B.
However, the Town Board finds a growing need to properly site solar
energy systems within the boundaries of the Town of Wheatfield to
protect residential, business areas and other land uses, to preserve
the overall beauty, nature and character of the Town of Wheatfield,
to promote the effective and efficient use of solar energy resources,
and to protect the health, safety and general welfare of the citizens
of the Town of Wheatfield.
C.
Solar energy systems, like all land uses, shall be regulated through
the zoning of the Town and sited, in accordance with the community's
Comprehensive Plan and the Town's Local Waterfront Revitalization
Program Plan. The larger solar energy systems can have significant
impacts on the Town of Wheatfield and the community's future.
In accordance with the Town's Comprehensive Plan these systems
will be sited to minimize impacts to the Town's agricultural
community, rural character, neighborhoods, important commercial corridors
and other significant features. In considering these impacts, the
Town will reference the Town of Wheatfield Open Space and Greenspace
Plan, the Town's Agricultural Protection Plan, and county and
regional plans.
D.
Solar energy systems need to be regulated for removal when no longer
utilized.
The following definitions shall apply to this article:
The person or entity filing an application and seeking an
approval under this article; the owner of a solar energy system or
a proposed solar energy system project; the operator of a solar energy
system or a proposed solar energy system project; any person acting
on behalf of an applicant, solar energy system or proposed solar energy
system. Whenever the terms "applicant" or "owner" or "operator" are
used in this article, said term shall include any person acting as
an applicant, owner or operator.
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.
A solar energy system that is affixed to the side(s) of a
building or other structure, either directly or by means of support
structures or other mounting devices, but not including those mounted
to the roof or top surface of a building. Said system is designed
and intended to generate electricity primarily for use on said lot
(net metering is allowed), potentially for multiple tenants, through
a distribution system that is not available to the general public.
A solar energy system that is affixed to the ground either
directly or by support structures or other mounting devices. Said
system is an accessory structure, designed and intended to generate
electricity primarily for use on said lot (net metering is allowed),
potentially for multiple tenants, through a distribution system that
is not available to the general public, and that generated up to 110%
of the electricity consumed on the site over the previous 12 months
(confirmed by information presented to the Town). Ground-mounted solar
energy system not meeting the definition as outlined in this article
will be treated as a large-scale or utility-scale solar energy systems
and the requirements of such.
A contract between a developer and a local governing body,
whereby the developer agrees to provide the community with certain
benefits and mitigate specified impacts of the solar project.
Any solar energy system that is less than 30 acres in size
(as measured by the fenced-in area), that cumulatively on a lot is
designed and intended to supply energy primarily into a utility grid
for sale to the general public, or does not meet the definition of
Tier 1, Tier 2 and Tier 4 solar energy systems.
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 billing mechanism that credits solar energy system owners
for the electricity they add to the grid. For example, if a residential
customer has a PV system on their roof, it may generate more electricity
than the home uses during daylight hours.
A property that is not affiliated with a solar energy system
project in any contractual way related to the solar project.
A property that is being leased for solar usage, or a property
that has an agreement or lease related to the solar project.
Bees, birds, bats, and other insects or wildlife that pollinate
flowering plants, and includes both wild and managed insects.
Land, designated as "prime farmland" or "prime farmland where
drained" (where a drainage tile system has been installed) in the
U.S. Department of Agriculture Natural Resources Conservation Service
(NRCS)'s Soil Survey Geographic (SSURGO) Database on Web Soil
Survey, that has the best combination of physical and chemical characteristics
for producing food, feed, forage, fiber, and oilseed crops and is
also available for these land uses.
Any solar energy system that is affixed to the roof of a
building and wholly contained within the limits of the roof surface.
Said system is designed and intended to generate electricity solely
for use on said lot (net metering is allowed), potentially for multiple
tenants.
The space between a solar collector and the sun through which
solar radiation passes.
Any solar energy system that is 30 acres or more in size
(as measured by the fenced-in area), that cumulatively on a lot is
designed and intended to supply energy primarily into a utility grid
for sale to the general public or does not meet the definition of
a Tier 1, Tier 2 or Tier 3 solar energy system.
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 all applicable codes, regulations, and industry
standards as referenced in the New York State Uniform Fire Prevention
and Building Code ("Building Code"), the New York State Energy Conservation
Code ("Energy Code"), NFPA, NEC, other federal and state codes, Niagara
County regulations and the Town Code.
E.
Any application (including variance applications) pending (except
those specifically excluded from the moratorium in place at that time)
for solar energy systems on the effective date of this article shall
be subject to the provisions of this article.
A.
A building permit shall be required for installation of all solar
energy systems.
B.
Issuance of permits and approvals by the Planning Board shall include
review pursuant to the State Environmental Quality Review Act Article
8 and its implementing regulations at 6 NYCRR Part 617 (SEQRA).
C.
This article shall take precedence over any inconsistent provision
of the Zoning Law of the Town of Wheatfield.
D.
Solar applications shall be referred to the applicable fire department
or the Fire Advisory Board for input.
The placement, construction, and major modification of all solar
energy systems within the boundaries of the Town of Wheatfield shall
be permitted only as follows:
A.
Tier 1: rooftop-mounted, building-mounted and building-integrated
solar energy systems upon issuance of building permit (specific Town
of Wheatfield Building Permit and requirements for rooftop-mounted
systems).
B.
Tier 2: ground-mounted solar energy systems, through site plan approval
issued by the Town of Wheatfield Planning Board and upon issuance
of a building permit and shall be subject to all provisions of this
article.
C.
Large-scale solar energy systems (Tier 3) shall not be considered a permitted use unless shown to meet the requirements (and one is issued) of a special permit pursuant to this article and Article XI of the Town of Wheatfield Zoning Ordinance, and subject to site plan review by the Planning Board and requiring issuance of a building permit within the A-R, M-1, M-2 and PUD (where the approved PUD allows them) Districts. These Tier 3 systems are also limited per the following:
(1)
These systems are not allowed in the Niagara Falls Boulevard
Overlay District and the Airport Protection Area and Potential Impact
Area as illustrated on the Town of Wheatfield Zoning Map.
(2)
To further reduce potential impacts, a Tier 3 system shall not
be located on a property adjacent (including across the street) to
a nonparticipating property in a district zoned residential (R-1,
R-2, R-3 and R-C).
D.
Utility-scale solar energy systems (Tier 4) shall not be considered a permitted use unless shown to meet the requirements (and one is issued) of a special permit pursuant to this article and Article XI of the Town of Wheatfield Zoning Ordinance, and subject to site plan review by the Planning Board and requiring issuance of a building permit within the A-R, M-1, M-2 and PUD (where the approved PUD allows them) Districts. These Tier 4 systems are also limited per the following:
(1)
These systems are not allowed in the Niagara Falls Boulevard
Overlay District and the Airport Protection Overlay District.
(2)
To further reduce potential impacts, a Tier 4 system shall not
be located on a property adjacent (including across the street) to
a property in a district zoned residential (R-1, R-2, R-3 and R-C).
E.
Tier 3 and Tier 4 systems are not allowed in the R-R, RNB, R-1, R-2,
R-3 or R-C Zoning Districts.
F.
Any solar energy system to be used strictly for agricultural use
purposes in accordance with New York State Agriculture and Markets
Law, may have some requirements of this article waived by the Planning
Board and will include an expedited approval process, as necessary.
A.
Rooftop-mounted and building-mounted solar energy systems shall not
be more than three feet higher than the finished roof to which they
are mounted, and in no instance shall any part of the system extend
beyond three feet before the edge of the roof. All rooftop-mounted
or building-mounted solar energy systems shall meet all building permit
requirements (special Wheatfield permit for rooftop solar units) including
the New York State Uniform Fire Prevention and Building Code standards
and the following standards:
(1)
Solar panels on pitched roofs shall be mounted with a maximum
distance of eight inches between the roof surface and the highest
edge of the system.
(2)
Solar panels on pitched roofs shall be installed parallel to
the roof surface on which they are mounted or attached.
(3)
Solar panels on pitched roofs shall not extend higher than the
highest point of the roof surface on which they are mounted or attached.
(4)
Solar panels on flat roofs shall not extend above the top of
the surrounding parapet, or more than 24 inches above the flat surface
of the roof, whichever is higher.
(5)
All solar panels shall have antireflective coating(s) and proof
of such must be provided at permit application.
B.
Building-integrated solar energy systems. Building-integrated solar
energy systems shall be shown on the plans submitted for the building
permit application for the building containing the system.
C.
Tier 2. Ground-mounted solar energy systems shall be subject to the
following requirements:
(1)
The location of said solar energy system shall be placed the
greater of: two times the standard primary structure side yard setback
requirement of the use district in which it is located or at a minimum
of 20 feet from any side yard property line. The system shall also
be located a minimum of 20 feet from any rear property line. This
distance shall be measured from the panels and any associated equipment
to the property line; and
(2)
The location of said solar energy system shall be only located
in the side or rear yard (as defined in the Town Code); and
(3)
A remote disconnect must be provided and shown on the site plan.
(4)
The height of said solar energy system shall not exceed 12 feet
when oriented at maximum tilt on a lot situated in a Residential-1
(R-1), Single-Family Residence, Residential-2 (R-2) or Residential-3
(R-3); and
(5)
The height of said solar energy system shall not exceed 15 feet
when oriented at maximum tilt on a lot situated in an Agricultural-Residential
(A-R), Rural Residential (R-R), Rural Neighborhood Business (RNB),
Restricted Commercial (R-C), Commercial (C-1), Planned Unit Development
(PUD), or all Industrial Districts (M-1, M-2); and
(6)
The total area occupied by said solar energy system on a lot
shall not exceed 500 square feet in a Residential-1 (R-1), Single-Family
Residence, Residential-2 (R-2) or Residential-3 (R-3) Zoning District
(Units proposed that exceed this area limitation will require a variance
through the Town Zoning Board.); and
(7)
The total area occupied by said solar system on a lot which
is two acres or less situated in an Agricultural-Residential (A-R),
Rural Residential (R-R), Rural Neighborhood Business (RNB), Restricted
Commercial (R-C), Commercial (C-1), Planned Unit Development (PUD),
or all Industrial Districts (M-1, M-2) shall not exceed 1,000 square
feet (Units proposed that exceed this area limitation will require
a variance through the Town Zoning Board.); and
(8)
The total area occupied by said solar energy system on a lot
which is greater than two acres but less than five acres situated
in an Agricultural-Residential (A-R), Rural Residential (R-R), Rural
Neighborhood Business (RNB), Restricted Commercial (R-C), Commercial
(C-1), Planned Unit Development (PUD), or all Industrial Districts
(M-1, M-2) shall not exceed 5% of the total square footage of the
entire lot; and
(9)
The total area occupied by said solar energy system on a lot
which is greater than five acres or more situated in an Agricultural-Residential
(A-R), Rural Residential (R-R), Rural Neighborhood Business (RNB),
Restricted Commercial (R-C), Commercial (C-1), Planned Unit Development
(PUD), or all Industrial Districts (M-1, M-2) shall not exceed 10%
of the total square footage of the entire lot.
D.
Site plan requirements for a ground-mounted, Tier 2 solar energy
system. Site plan approval is required by this article for ground-mounted
Tier 2 solar energy systems, and the applicant shall be required to
submit a site plan drawn in sufficient detail as follows:
(1)
Plans and drawings of the solar energy system installation signed
by a professional engineer registered in New York State showing the
proposal layout of the solar energy system along with a description
of all components, existing vegetation, any proposed clearing and
grading of the lot involved, any stormwater or erosion disturbances,
and utility lines, both above and below ground, on the site and adjacent
to the site; and
(2)
Property lot lines and the location and dimensions of all existing
structures and uses on site within 200 feet of the proposed solar
panels; and
(3)
Any proposed fencing and/or screening for said project; and
(4)
Any such additional information as may be required by the Town's
professional engineer or consultant, Town of Wheatfield Planning Board,
Town Attorney, Building Inspector or other Town entity; and
E.
Any solar energy system shall be accessible for all emergency service
vehicles and personnel. All applications will be referred to the applicable
emergency service providers and the Town Fire Advisory Board for input.
F.
All structures and devices used to support solar collectors shall
be nonreflective and/or painted a subtle or earth-tone 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 parks in excess
of that which already exists.
G.
Artificial lighting of any solar energy systems shall be limited
to lighting required for safety and operational purposes and shall
be shielded from all neighboring properties and public roads.
H.
If the use of an approved solar energy system is discontinued, the
owner or operator shall notify the Building Inspector within 30 days
of such discontinuance. If a solar energy system is to be retained
and reused, the owner or operator shall further inform the Building
Inspector of this in writing at such time and obtain any necessary
approvals within one year, otherwise it shall be automatically deemed
abandoned (and removed per this article).
Applications for Tier 3 and 4 systems under this article shall be made in accordance with Article XI, Special Use Permits, and as follows. Applicants for a special permit to place, construct, and make a major modification to a large-scale or utility-scale solar energy system within the boundaries of the Town of Wheatfield shall submit six sets (and an electronic copy) of the following information to the Building Inspector, who shall first present it to a professional engineer or consultant for an initial review and then onto the Planning Board for its review and potential approvals. The Planning Board may make such additional referrals as it deems appropriate. No such application shall be deemed filed until any required application fee has been paid. The following information shall be contained in the application:
A.
A completed State Environmental Quality Review Act (SEQRA) full environmental
assessment form (FEAF), with the Town of Wheatfield Planning Board
to be designated as lead agency for the SEQRA process.
B.
Necessary permit information:
(1)
Name, address, and telephone number of the property owner. If
the property owner is not the applicant, the application shall include
the name, address, and telephone number of the applicant and a letter
or other written permission signed by the property owner authorizing
the applicant to represent the property owner; and
(2)
Documentation of access to the project site(s), including location
of all access roads (meeting state, Town and emergency service provider's
requirements), gates, parking areas, etc.; and
(3)
Documentation of the clearing, grading, stormwater and erosion
control plans; and
(4)
Fire safety plan (to be reviewed by the Building Department
and Fire Advisory Board).
(5)
Property operation and maintenance plan. Such plan shall describe
continuing photovoltaic maintenance and property upkeep, such as mowing
and trimming (or other methodologies), maintenance of access drives,
maintenance of ditches or other waterways through the site (potential
emergency access easement provided to the Town), and maintenance of
the plantings for the required screening. This operation and maintenance
plan shall reflect all lands that are being leased or owned by the
applicant.
(6)
Utility interconnection data and a copy of written notification
to the utility of the proposed interconnection; and
(7)
One or three-line electrical diagram detailing the solar energy
system installation, associated components, and electrical interconnection
methods, with all disconnects and over-current devices; and
(8)
A property owner or applicant who has installed or intends to
install a large-scale or utility-scale solar energy system may choose
to negotiate with other property owners in the vicinity for any necessary
solar skyspace easements. The issuance of a special use permit does
not constitute solar skyspace rights, and the Town shall not be responsible
for ensuring impermissible obstruction to the solar skyspace because
of uses or development performed in accordance with the Town Code.
(9)
Copy of the lease or contract of sale for the property (redacted
as necessary).
(10)
A copy of a letter acknowledging Niagara County's Solar
Panel Recycling Regulations.
C.
A site plan drawn in sufficient detail meeting the Town of Wheatfield
requirements and as follows:
(1)
Plans and drawings of the solar energy system installation signed
by a professional engineer registered in New York State showing the
proposal layout of the entire solar energy system along with a description
of all components, whether on-site or off-site, existing vegetation
and proposed clearing and grading of all sites involved, and utility
lines, both above and below ground, on the site and adjacent to the
site; and
(2)
Property lot lines and the location and dimensions of all existing
structures and uses on site within 500 feet of the solar panels; and
(3)
Proposed fencing and/or screening for said project.
D.
A decommissioning plan to ensure the proper removal of a large-scale
or utility-scale solar energy system. The decommissioning plan is
to be submitted as part of the special use permit application to the
Building Inspector for approval and must specify that after the large-scale
or utility-scale solar energy system is no longer in use (as determined
by the owner/operator or the Building Inspector per this article),
it shall be removed by the applicant or any subsequent owner. The
decommissioning plan shall identify the anticipated life of the project.
The plan shall demonstrate how the removal of all infrastructure and
restoration shall be conducted to return the parcel to its original
state prior to construction. The plan shall also include an expected
timeline for execution and a cost estimate for decommissioning prepared
by a professional engineer or qualified contractor. Cost estimates
shall take inflation into consideration and be revised every five
years during operation of the system (recycle and salvage value shall
be excluded in these estimates as they are unpredictable in nature).
Removal of the large-scale or utility-scale solar energy system must
be completed in accordance with the approved decommissioning plan
and the standards provided as follows:
(1)
All structures and foundations associated with the large-scale
or utility-scale solar energy systems shall be removed;
(2)
All disturbed ground surfaces shall be restored to original
conditions, including topsoil and seeding as necessary; and
(3)
All electrical systems shall be properly disconnected, and all
cables and wiring buried shall be removed.
E.
A bond or other approved security shall be provided to cover the
cost of removal and restoration of the area impacted by the solar
system.
(1)
The deposit, execution, or filing with the Town Clerk of cash,
bond, or other form of security reasonably acceptable to the Town
Attorney and Town 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 restorations of the site subsequent to removal.
The amount of the bond or security shall be 125% of the cost of removal
of the Tier 3 or Tier 4 solar energy system and restoration of the
property with an escalator of 2% annually for the life of the solar
energy system. The decommissioning amount shall not be reduced by
the amount of the estimated salvage value of the solar energy system.
The bond shall be renewed every five years or, as necessary, to reflect
adjustments in the projected costs of decommissioning.
(2)
In the event of default upon performance of such conditions,
after proper notice and expiration of any cure periods, the cash deposit,
bond, or security shall be forfeited to the Town, which shall be entitled
to maintain an action thereon. The cash deposit, bond, or security
shall remain in full force and effect until restoration of the property
as set forth in the decommissioning plan is completed.
(3)
In the event of default or abandonment of the solar energy system,
the system shall be decommissioned as set forth in this article.
F.
All applications shall address agricultural impacts. For projects
proposed on agricultural lands (lands that have been farmed within
the last 10 years), the project must be shown to not adversely impact
the overall operation of the farm (the remainder of the lands can
continue to be farmed) or adjoining farmlands. Agricultural data statements,
where required in accordance with New York State law, shall be submitted
to the Town, County Agricultural Board and adjoining agricultural
properties. If a notice of intent (NOI) is required by a New York
State Agency, the Town will also require a copy of that document and
any responses to the NOI.
G.
All applicants shall submit a proposal for a host community agreement
(to be reviewed and approved by the Town Board prior to issuance of
the SUP). The host community agreement should reflect a value of at
least 50% of the estimated overall PILOT/allowed payments for the
project.
H.
Any such additional information as may be required by the Town's
professional engineer or consultant, Town of Wheatfield Planning Board,
Town Attorney, Building Inspector or other Town entity.
I.
Applications for large-scale and utility-scale Tier 3 and 4 solar
energy systems shall meet the following additional criteria:
(1)
Photo simulations shall be included showing the proposed solar
energy system in relation to the building/site along with elevation
views and dimensions, and manufacturer's specs and photos of
the proposed solar energy system, solar collectors, and all other
components. These photo simulations must include before and after
simulations from locations where the solar energy system will be viewed
from off-site locations as determined by the Planning Board. After
simulations must include landscaping at the condition when first planted
and another at maturity. (See section on screening and visibility
for other requirements.)
(2)
Any site containing a large-scale or utility-scale solar energy
system shall contain fencing or another type of enclosure acceptable
to the Town (and meeting state and national code standards) enclosing
all solar energy system components that present safety hazards. The
style of fencing shall fit into the character of the area and be approved
by the Planning Board.
(3)
A berm, landscape screen, or other opaque enclosure, or any
combination thereof acceptable to the Town capable of screening the
site, shall be provided along any property line that abuts an important
community resource, an existing residence or any property zoned other
than A-R, M-1, M-2 or PUD. See following subsections for additional
information on screening.
(4)
After completion of a large- or utility-scale solar energy system,
the applicant shall provide a post-construction certification from
a professional engineer registered in New York State that the project
complies with applicable codes and industry practices and has been
constructed and is operating according to the design plans.
J.
Screening and visibility.
(1)
Solar energy systems shall have views minimized from adjacent
properties using architectural features, earthen berms, landscaping,
or other screening methods that will harmonize with the character
of the property and surrounding area.
(2)
Solar energy systems shall be required to:
(a)
Conduct a visual assessment of the visual impacts of the solar
energy system on public roadways and adjacent properties and as directed
by the Planning Board. As required previously, this analysis must
consider conditions at day one of operation and when the landscaping
has matured. At a minimum, a line-of-sight profile analysis shall
be provided, but photo simulations are required for all areas that
will have a view of the project site. Depending upon the scope and
potential significance of the visual impacts, additional impact analyses,
including, for example, a digital viewshed report, may be required
to be submitted by the applicant. The Town may hire an independent
consultant, at the cost of the applicant, to review and/or conduct
their own visual assessment.
(b)
Submit a screening and landscaping plan to show adequate measures
to screen through landscaping, grading, or other means so that views
of solar panels and solar energy equipment shall be minimized as reasonably
practical from public roadways and adjacent properties to the extent
feasible. The Planning Board will in good faith determine the adequacy
of these measures in its sole and absolute discretion.
(3)
The screening and landscaping plan shall specify the locations,
elevations, height, plant species, and/or materials that will comprise
the structures, landscaping, and/or grading used to screen and/or
mitigate any adverse aesthetic effects of the system. The landscaped
screening shall, at a minimum, be comprised of evergreen/coniferous
trees (planted at recommended spacing for the type of tree), at least
eight to 10 feet high at the time of planting (depending on site conditions
and the result of the visualizations; may need to be installed in
a zig-zag pattern to maximum screening), plus supplemental shrubs
(deer resistant) placed in between the evergreen trees at the reasonable
discretion of the Town Planning Board. These plantings are to be planted,
typically, within 10 linear feet of the solar energy system fencing
or as directed by the Planning Board to achieve maximum screening.
In some cases, existing vegetation located on participating properties,
may be used to satisfy all or a portion of the required landscaped
screening. Suitable evergreen tree and shrub species are to be determined
by a professional arborist and approved by the Town. This minimum
screening requirement will be reduced if adjoining properties are
participating properties. All plantings shall come with a ten-year
guarantee and must be replaced if dead or diseased (include this in
operation and maintenance plan). This will be enforced by the Town
through the required yearly inspections. Berms can also be utilized
to reduce heights of proposed plantings, but the berms must not interfere
with site drainage and must be properly designed to maintain vegetation.
Landscape plans must be completed by a New York State registered landscape
architect.
(4)
For any buildings or structures (not panels) to be placed on
the site, the applicant shall be required to submit plans illustrating
how these structures will blend into the character of the area. For
example, buildings can be made to look like agricultural structures
such as barns.
K.
Additional application and permitting requirements for utility-scale
Tier 4 solar energy systems.
(1)
All the information/requirements listed for a Tier 3 system,
plus the following additional information/requirements.
(2)
Submittal of an agricultural impact statement to determine the
impact to agriculture in the Town and community. The Planning Board,
on a project-by-project basis, will work with the applicant on finalizing
the requirements of this agricultural impact statement, but at a minimum
will include whether the farmland is active (how long it has been
farmed or not farmed) and if it is farmed by the property owner or
leased. If leased, how the removal of this leased land will affect
the farmer who leases this site and other farmlands and other leases
that the farmer has in the Town. Include information on the improvements
that have been made to the lands (tiling, irrigation, etc.), history
of the farm and its products, number of workers, products purchased
and used for farming operations, etc.
(3)
Submittal of an economic impact analysis to determine the impact
of the project on the economy of the Town. This includes the agricultural
impacts in the agricultural impact statement and information as noted
by the Town Planning Board (Town to work with the applicant on the
scoping of this study, but will include, at a minimum, the estimated
PILOT and HCA payments to the Town).
(4)
Any proposed Tier 4 solar energy system shall not be located
on a parcel that consists of prime farmland soils (including prime
where drained) or farmland soils of statewide importance on more than
50% of the parcel.
(5)
Proposal for a host community agreement (to be reviewed and
approved by the Town Board prior to any approvals granted by other
boards or agencies) that reflects the large-scale impacts of the project.
L.
Additional agricultural resources requirements. For projects located
on agricultural lands:
(1)
Tier 3 and 4 solar energy systems allowed to be located on farmland
(through the processes described in this article) shall be constructed
in accordance with the construction requirements of the New York State
Department of Agriculture and Markets (See New York State Agriculture
and Markets Guidelines).
(2)
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 by providing native perennial vegetation
and foraging habitat beneficial to game birds, songbirds, and pollinators.
To the extent practicable, when establishing perennial vegetation
and beneficial foraging habitat, the owners shall use native plant
species and seed mixes. Once established, other agriculture uses such
as pasturing livestock and apiculture are permissible and encouraged.
Input from the local farmers and any duly appointed Town Agricultural
Committee will be needed to make these determinations.
(3)
Agricultural restoration requirements. Once the system is decommissioned,
the site shall be restored and remediated in accordance with the New
York State Agriculture and Markets Guidelines (This will be a condition
of the special use permit.) and any additional requirements specified
by the Planning Board.
M.
Noise. The Tier 3 or 4 project shall not result in any adverse noise
impacts on any surrounding homes or other sensitive receptors (use
of NYSDEC regulations concerning noise). Specifically, the project
must be shown not to generate noise at 45 dBA or above at any nonparticipating
property line.
N.
Hazardous materials. The Tier 3 or 4 project components shall not
contain any hazardous materials that could contaminate soils or the
air by their release (units shall not contain cadmium or other hazardous
substances). Specific material data information/specifications (SDS/MSDS
sheets) shall be submitted on all components of the project. The applicant
must ensure that no harmful chemicals will be leaked into the soils
over the life of the project. For certain components of the project,
information on spill containment systems will need to be provided.
This required information shall be reviewed by the Planning Board,
its consultants and the Fire Department.
O.
Airport impacts (NFARS encroachment issues). All Tier 3 or 4 solar
energy projects must complete a study to be submitted to the Niagara
Falls Air Reserve Station and the Niagara Falls International Airport
that discusses the following:
(1)
Distance from installation.
(2)
Location relative to approach/departure and flight patterns
associated with the base or special use/training areas.
(3)
Glare impact on airport sensitive receptors at Niagara Falls
Air Reserve Station. Analysis should include a knowledge of sun position,
observer location, and the solar module/array characteristics (e.g.,
tilt, azimuth or orientation, location, extent and, if tracking, those
parameters for the entire path of the moving panels) Note: Though
not required by the FAA it is strongly encouraged to utilize the solar
glare hazard analysis tool (SGHAT) to predict potential glare with
assessed results relative to the FAA's Solar Policy and Ocular
Hazard Standard (also adopted by the U.S. Department of Defense DoD)
under Instruction (DODI) 4165.57 and implemented by U.S. Air Force
AFI 32-7063.
(4)
Any additional lighting of the field to include anti-collision.
(5)
Stormwater runoff which may affect the base or the tributaries
transitioning through the base or the creation of storm ponds which
would attract wildlife and waterfowl.
(6)
Possible changes to wildlife habitat or migratory patterns that
will affect the IC or aircraft flight path.
P.
Tree loss. Removal of existing trees larger than six inches in diameter
should be minimized to the extent possible. On sites containing mature
trees, every effort shall be made to avoid these trees and locate
the project to minimize these tree losses.
Q.
Utility grade solar energy system (Tier 3 and 4) liability insurance.
(1)
The holder of a special use permit for a solar energy system
shall agree to secure and maintain for the duration of the permit,
public liability insurance as follows (unless waived by the Town Board
for smaller Tier 3 systems):
(a)
Commercial general liability covering personal injuries, death
and property damage: $5,000,000 per occurrence ($10,000,000 aggregate)
which shall specifically include the Town of Wheatfield and its officers,
councils, employees, attorneys, agents and consultants as additional
named insured.
(b)
Umbrella coverage: $10,000,000.
(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 Wheatfield 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 Wheatfield 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 and before construction is initiated, the permit holder
shall deliver to the Town of Wheatfield a copy of each of the policies
or certificates representing the insurance in the required amounts.
(6)
Certificate of insurance. A certificate of insurance states
that it is for informational purposes only and does not confer sufficient
rights upon the Town of Wheatfield shall not be deemed to comply with
this article.
(7)
Indemnification. Any application for a solar energy system within
the Town of Wheatfield 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 Wheatfield 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 Wheatfield 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 Wheatfield.
Special permits issued for large-scale or utility-scale solar
energy systems shall meet the following conditions:
A.
Minimum lot area: none.
B.
Maximum lot area (as measured by the fenced in area): less than 30
acres for Tier 3 systems.
C.
Lot coverage. There are no lot coverage requirements, except if the
land is presently being farmed or has been farmed in the last five
years, then the maximum lot coverage is 60%.
D.
Setbacks. Any large-scale or utility-scale solar energy system shall
adhere to the following setbacks (This setback distance shall be measured
from the fence that surrounds all panels and equipment.):
(1)
From any nonparticipating property lot line: a minimum of 200
feet from any property lot line, plus appropriate screening.
(2)
From any participating property lot line: A minimum of 50 feet
from any property lot line, plus any screening required by the Planning
Board (if necessary). If the property line separates two parcels that
are being leased or purchased to have panels placed on them, the fifty-foot
setback does not apply.
E.
Maximum overall height. The height of a utility-scale solar energy
system shall not exceed 15 feet when oriented at maximum tilt.
F.
A large-scale or utility-scale solar energy system shall only be
located in a rear yard if there is a principal structure or dwelling
on said lot.
G.
A large-scale or utility-scale solar energy system shall adhere to
all applicable federal, state, county and Town of Wheatfield laws,
regulations, building, plumbing, electrical, and fire codes.
H.
Development and operation of a large-scale or utility-scale solar
energy system shall not have a significant adverse impact on fish,
wildlife, or plant species or their critical habitats, or other significant
habitats identified by the Town of Wheatfield or other federal or
state regulatory agencies.
I.
The design, construction, operation, and maintenance of a large-scale
or utility-scale solar energy system shall prevent the misdirection
and/or reflection of solar rays onto neighboring properties, public
roads, and public parks in excess of that which already exists. A
glare study to Town requirements must be submitted to illustrate this.
The Town may hire an independent consultant to review and verify this
study at the cost of the applicant.
J.
All structures and devices used to support solar collectors shall
be nonreflective and/or painted a subtle or earth-tone color.
K.
All transmission lines and wiring associated with a large-scale or
utility-scale solar energy system shall be buried and include necessary
encasements in accordance with the National Electric Code and Town
requirements. The applicant is required to show the locations of all
proposed overhead (where necessary) and underground electric utility
lines, including substations and junction boxes and other electrical
components for the project on the site plan.
L.
All transmission lines and electrical wiring shall be in compliance
with the utility company's requirements for interconnection (proof
to be provided).
M.
Artificial lighting of large-scale or utility-scale solar energy
systems shall be limited to lighting required for safety and operational
purposes and shall be shielded from all neighboring properties and
public roads.
N.
Any signage shall be in accordance with the Town's signage regulations
and meet the following:
(1)
No signage or graphic content shall be displayed on the solar
energy systems except the manufacturer's name, equipment specification
information, safety information, and twenty-four-hour emergency contact
information. Said information shall be depicted within an area no
more than eight square feet.
(2)
As required by National Electric 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,
invertors and substations.
O.
Any site containing a large-scale or utility-scale solar energy system
shall contain fencing or other device/structure acceptable to the
Town and meeting Fire Safety and Electric Codes enclosing all solar
energy system components that prevent safety hazards. (Fencing shall
be a minimum of seven feet in height as prescribed by the Code; this
supersedes any other zoning requirement for fence heights.)
P.
A berm, landscape screen, or other opaque enclosure, or any combination
thereof acceptable to the Town capable of screening the site may be
required along any property line that abuts an existing residence.
Q.
After completion of a large-scale or utility-scale solar energy system,
the applicant shall provide a post-construction certification from
a professional engineer registered in New York State (agreed to by
the Town of Wheatfield) that the project complies with applicable
codes and industry practices and has been constructed and is operating
according to the design plans. All costs for such inspection and certification
shall be paid for by the applicant/owner.
R.
The special permit approval will include the requirement that the
applicant/owner shall return to the Planning Board one year after
construction is certified as being completed. The Planning Board will
review the project's special permit conditions, reports from
the Building Inspector, Town Engineer and other Town officials, and
any complaints received on the project. The Planning Board will then
determine if the project is in accordance with the special permit
and all conditions placed on that permit. If the Planning Board finds
that the project is in accordance with the special permit and all
conditions, the applicant will not need to return to the Planning
Board. If the Planning Board finds that the project is not operating
in accordance with the special permit and the conditions of that permit,
that applicant shall remedy those deficiencies to the satisfaction
of the Town and/or be subject to fines and penalties (as set by the
Town), and potential loss of the special permit. In this case, the
applicant shall return again to the Planning Board after one year
of remedying these deficiencies for the Planning Board to again review
the project against the special permit and the conditions of that
permit.
S.
Compliance with regulatory agencies. The applicant is required to
obtain all necessary regulatory approvals and permits from all federal,
state, county, and local agencies having jurisdiction and approval
related to the completion of a large-scale or utility-scale solar
energy system.
T.
A bond or other appropriate form of security shall be offered by
the applicant as part of their decommissioning plan (The bond/security
and decommissioning plan is prescribed in this article.) to cover
the cost of the removal and site restoration by the Town of Wheatfield
Planning Board, and said proof of appropriate form of security shall
be filed prior to construction and on an annual basis with the Town
Clerk.
U.
Clearing, grading, stormwater and erosion control.
(1)
Before the Town of Wheatfield shall issue a clearing, grading,
stormwater or building permit for a large-scale or utility-scale solar
energy system, the applicant shall submit a stormwater and erosion
control plan to the Town of Wheatfield for its review and approval;
and
(2)
The plan shall minimize the potential adverse impacts on wetlands
and Class I and II streams and the banks and vegetation along those
streams and wetlands and minimize erosion or sedimentation.
A.
Time limit on completion. After the granting of a special permit
of a large-scale or utility-scale solar energy system with concurrent
site plan approval or site plan approval of a freestanding or ground-mounted
solar energy system by the Planning Board, the building permit shall
be obtained within six months and the project shall be completed within
12 months. A six-month extension to obtain a building permit or the
completion time can be issued by the Planning Board upon application
by the applicant. If not constructed, the special permit and/or site
plan approval shall automatically lapse within 12 months after the
date of approval by the Town of Wheatfield Planning Board (unless
an extension is granted).
B.
Inspections. Upon reasonable notice, the Town of Wheatfield Building
Inspector or his or her designee may enter a lot on which a solar
energy system has been approved for the purpose of compliance with
any requirements or conditions. Twenty-four hours' advance notice
by telephone to the owner/operator or designated contact person shall
be deemed reasonable notice. Furthermore, a utility-scale solar energy
system shall be inspected annually by a New York State licensed professional
engineer that has been approved by the Town or at any other time,
upon a determination by the Town's Building Inspector that damage
may have occurred, and a copy of the inspection report shall be submitted
to the Town Building Inspector. Any fee or expense associated with
this inspection shall be borne entirely by the permit holder.
C.
General complaint process. During construction, the Town Building
Inspector can issue a stop order at any time for any violations of
a special permit or building permit After construction is complete,
the permit holder of a Tier 3 or Tier 4 solar energy system shall
establish a contact person, including name and phone number, for receipt
of any complaint concerning any permit requirements.
D.
Continued operation. A solar energy system shall be maintained in
operational condition at all times, subject to reasonable maintenance
and repair outages. Operational condition includes meeting all approval
requirements and conditions. Further, the Building Inspector shall
also have the right to request documentation from the owner of a solar
energy system regarding the system's usage at any time.
E.
Removal. All solar energy systems shall be dismantled and removed
immediately from a lot when the special permit or approval has been
revoked by the Town of Wheatfield Planning Board or the solar energy
system has been deemed inoperative or abandoned by the Building Inspector
for a period of more than 365 days at the cost of the owner. If the
owner does not dismantle and remove said solar energy system as required,
the Town Board may, after a hearing at which the owner shall be given
an opportunity to be heard and present evidence, dismantle and remove
said facility and place the cost of removal as a tax lien on said
parcel.
F.
Determination of abandonment or inoperability. A determination of
the abandonment or inoperability of a solar energy system shall be
made by the Town Building Inspector, who shall provide the owner with
written notice by personal service or certified mail. Any appeal by
the owner of the Building Inspector's determination of abandonment
or inoperability shall be filed with the Town of Wheatfield Zoning
Board of Appeals within 30 days of the Building Inspector causing
personal service or mailing certified mail his written determination,
and the Board shall hold a hearing on same. The filing of an appeal
does not stay the following time frame unless the Zoning Board of
Appeals or a court of competent jurisdiction grants a stay or reverses
said determination. At the earlier of the 366 days from the date of
determination of abandonment or inoperability without reactivation
or upon completion of dismantling and removal, any approvals for the
solar energy system shall automatically expire.
G.
Application and annual fees.
(1)
Large-scale and utility-scale solar energy system. An applicant
shall pay an initial application fee in the amount as set by the Town
Board, upon filing its special permit and site plan application to
cover the cost of processing and reviewing the application. Per sections
of this article, if the Planning Board needs to hire specialists/consultants
to review reports/materials submitted by the applicant, the Town will
charge the costs of these reviews to the applicant (may require escrow
monies to be deposited). If the project is approved, the owner shall
pay an annual fee in the amount as set by the Town Board, to cover
the cost of processing and reviewing the annual inspection reports
and for administration, inspections and enforcement.
(2)
Site plan application for ground-mounted solar energy systems.
An applicant shall pay the standard site plan review fee as determined
from time to time by the Town Board, by resolution.
(3)
The Town of Wheatfield reserves the right to, by local law,
provide that no exemption pursuant to the provision of the New York
State Real Property Tax Law (RPTL) § 487 shall be applicable
within its jurisdiction.
H.
Prior to the issuance of a building permit, the applicant shall document
that all applicable federal, state, county, and local permits have
been obtained.
I.
Special permits for a large-scale or utility-scale solar energy system
granted under this article shall be issued only following a public
hearing held as required by the Town Zoning Law.
J.
The Planning Board may:
(1)
For large-scale or utility-scale solar energy systems, grant a special permit, deny a special permit, or grant a special permit with written stated conditions. The Planning Board in making this decision shall make findings in accordance with § 220-74 of Article XI. Denial of a special permit shall be by written decision based upon substantial evidence considered by the Board. If a special permit is granted, the Planning Board may grant site plan approval, deny site plan approval or grant site plan approval with written stated conditions. Denial of site plan approval shall be by written decision based upon substantial evidence considered by the Board. Upon issuance of a special permit and site plan approval, the applicant shall obtain a building permit for the large-scale or utility-scale solar energy system.
(2)
For ground-mounted (Tier 2) solar energy systems, grant site
plan approval, deny site plan approval or grant site plan approval
with written stated conditions. Denial of site plan approval shall
be by written decision based upon substantial evidence considered
by the Board. Upon issuance of a site plan approval, the applicant
shall obtain a building permit for the freestanding or ground-mounted
solar energy system.
K.
Any changes or alterations post construction to a large-scale or
utility-scale, freestanding or ground-mounted solar energy system
shall be done only by amendment to the special permit and/or site
plan (if required) subject to all requirements of this Code.
L.
Special permits for a large-scale or utility-scale solar energy system
shall be assignable or transferrable so long as they are in full compliance
with this article and all the conditions, and the Building Inspector
is notified in writing at least 15 days prior thereto. The Town shall
notify the applicant of receipt of the notice and provide instructions
for the new owners on meeting the requirements of the special use
permit (bonds, decommissioning plans, etc.).
M.
In addition to the requirements of this article, the special permit
application shall be subject to any other site plan approval requirements
set forth in the Zoning Law.
If the applicant violates any of the conditions of its special
permit, site plan approval or violates any other local, state or federal
laws, rules or regulations, this shall be grounds for revocation of
the special permit or site plan approval. Revocation may occur after
the applicant is notified in writing of the violations and the Town
of Wheatfield Planning Board holds a hearing on same.
In their interpretation and application, the provisions of this
article shall be held to be minimum requirements, adopted for the
promotion of the public health, safety and general welfare. It is
not intended to interfere with, abrogate, or annul other rules, regulations
or laws, provided that whenever the requirements of this article are
at a variance with the requirements of any other lawfully adopted
regulations, rules or laws, the most restrictive, or those which impose
the highest standards, shall govern.
Any violation of this Solar Energy 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 Town.
If any section, subsection, phrase, sentence, or other portion
of this article is for any reason held invalid, void, unconstitutional,
or unenforceable by any court of competent jurisdiction, such portion
shall be deemed a separate, distinct, and independent provision, and
such holding shall not affect the validity of the remaining portions
hereof.
