[HISTORY: Adopted by the Town Board of the Town of Bergen 9-24-2019 by L.L. No. 3-2019. Amendments noted where applicable.]
This solar energy chapter is adopted pursuant to §§ 261
to 264 of the New York State Town Law, which authorizes the Town of
Bergen to adopt zoning parameters that advance and protect the health,
safety, and welfare of the community, and to make provisions for,
so far as conditions may permit, the accommodation of solar energy
systems and equipment and access to sunlight necessary therefor.
The Town Board of the Town of Bergen states the following as
its findings and legislative intent:
A.
The Town Board of the Town of Bergen recognizes that solar energy
is a clean, readily available and renewable energy source and the
Town of Bergen intends to accommodate the use of solar energy systems.
B.
In addition, the Town Board believes it to be necessary to regulate
and govern the proper and timely removal of solar energy systems upon
such systems becoming nonfunctional or when they are no longer being
utilized.
C.
Prior to the adoption of this chapter, no specific procedures existed
to address the regulation and siting of solar energy systems. Accordingly,
the Town Board finds that the promulgation of this chapter is necessary
to direct the location, size and construction of these systems.
As used in this chapter, the following terms shall have the
meanings indicated:
The person or entity submitting an application and seeking
approval under this chapter; 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 term "applicant" or "owner" or "operator" are
used in this chapter, said term shall include any person acting as
an applicant, owner or operator.
Any form of security, including a cash deposit, surety bond,
collateral, property, or letter of credit, in an amount acceptable
to the Planning Board and form satisfactory to the Town Attorney.
Wherever a bond is required by the Town Code, alternate forms of security
shall be reviewed and may be approved by the Town Attorney and/or
Town Engineer.
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.
Any solar energy system that is affixed to the side(s) or
rear 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.
Land, designated as "farmland of statewide importance" in
the U.S. Department of Agriculture Natural Resources Conservation
Service (NRCS)'s Soil Survey Geographic (SSURGO) Database on
Web Soil Survey, which is of statewide importance for the production
of food, feed, fiber, forage, and oilseed crops as determined by the
appropriate state agency or agencies. Farmland of statewide importance
may include tracts of land that have been designated for agriculture
by state law.
The effect by reflections of light with intensity sufficient
as determined in a commercially reasonable manner to cause annoyance,
discomfort, nuisance, or loss in visual performance and visibility
in any material respects.
A solar energy system that is anchored to the ground and
attached to a pole or other mounting system, detached from any other
structure, for the primary purpose of producing electricity for on-site
consumption.
Land, designated as "prime farmland" 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, and located within Genesee County
Agriculture District 4 as defined by New York State Department of
Agriculture and Markets.
A solar energy system mounted on the roof of any legally
permitted building or structure and wholly contained within the limits
of the roof surface for the purpose of producing electricity for on-site
consumption.
Electrical energy storage devices, material, hardware, inverters,
or other electrical equipment and conduit devices associated with
the production of electrical energy.
An electrical generating system composed of a combination
of either solar panels or solar energy equipment.
A photovoltaic device capable of collecting and converting
solar energy into electrical energy.
SMALL-SCALE SOLAR ENERGY SYSTEMA solar energy system that is ground-mounted or roof-mounted, produces energy primarily for the purpose of on-site use, and does not exceed 2,000 square feet based on the perimeter occupied by the solar panels and produces less than 25kW (kilowatt).
LARGE-SCALE SOLAR ENERGY SYSTEMA solar energy system that is ground-mounted and greater than 1,000 square feet based on the perimeter occupied by the solar panels and produces greater than 25kW (kilowatt), principally used to capture solar energy and convert it to electrical energy to transfer to the public electric grid in order to sell electricity to or receive a credit from a public utility entity, but also may be for on-site use.
A.
The unified solar permitting process is available to all districts
in the Town of Bergen for eligible solar photovoltaic (PV) installations
that meet the following criteria:
(1)
Has a rate direct current capacity of 25kW (kilowatt) or less.
(2)
Does not require a zoning variance or special use permit; however,
will require an approved building permit.
(3)
Is mounted on a permitted roof structure, on a legal accessory structure,
or ground-mounted on the applicant's property.
(4)
The solar installation contractor complies will all licensing and
other requirements of the Town of Bergen and New York State.
(5)
If the structure is a sloped roof, solar panels are mounted parallel
to the roof surface.
B.
If an applicant cannot meet the criteria for a NYS unified permit,
they must submit a site plan and special use permit provided through
the Town of Bergen Code Enforcement Officer and subject to review
by the Zoning Board of Appeals and/or Planning Board.
A.
Small-scale solar energy systems less than 2,000 square feet based
on the perimeter occupied by the solar panels and less than 25kW.
B.
Applicability.
(1)
The requirements of this section shall apply to all solar energy
systems modified or installed after its effective date. No solar energy
system or device shall be installed or operated in the Town of Bergen
except in compliance with this section.
(2)
All solar energy systems shall be designed, erected and installed
in accordance with all applicable codes, regulations, and standards
of the Town of Bergen, and, where applicable, the State of New York.
(3)
Small-scale solar energy systems are permitted in all designated
zoning districts within the Town of Bergen with an approved building
permit.
C.
Roof- and building-mounted solar energy systems.
(1)
This subsection applies to the installation of solar panels for commercial
buildings and residences for small roof- or building-mounted solar
systems that meet the definition of a small-scale solar energy system
and that do not exceed 25 kW in size.
(2)
Building permits are required for the installation of all roof- and
building-mounted solar systems, and all building permit applications
for the installation of roof- or building-mounted solar systems on
residential and commercial buildings shall be reviewed by the Town
of Bergen's Code Enforcement Officer, who has the authority to
grant or deny permits for such systems.
(3)
Roof- and building-mounted solar systems. Roof- and building-mounted
solar systems that meet the definition of a small-scale solar energy
system and that do not exceed 25 kW in size are permitted as an accessory
use in all zoning districts in the Town of Bergen when attached to
any lawfully existing and lawfully permitted building, subject to
the following conditions:
(a)
Height: Solar energy systems shall not exceed the maximum height
restrictions of the zoning district within which they are located
and are provided the same height exemptions granted to building-mounted
mechanical devices or equipment.
(b)
Aesthetics: Roof-mounted solar energy system installations shall
incorporate, when feasible, the following design requirements:
D.
Ground-mounted and freestanding solar energy systems.
(1)
Ground-mounted and freestanding solar energy collectors are permitted
as accessory structures in all zoning districts of the Town of Bergen,
subject to the following conditions:
(a)
Building permits and/or unified solar permits are required for
the installation of all ground-mounted solar collectors. All permit
applications for the installation of ground-mounted solar collectors
on residential and commercial property shall be reviewed by the Town
of Bergen's Code Enforcement Officer, who has the authority to
grant permits for such systems.
(b)
The location of the solar collector meets all applicable setback
requirements for accessory structures in the zoning district in which
it is located. If said accessory structure exceeds 120 square feet,
then the setback requirements for principal structures shall apply.
(c)
The height of the solar collector and any part of the solar
energy equipment/system shall not exceed 10 feet when oriented at
maximum tilt.
(d)
Solar collectors and other facilities shall be designed and
located in order to prevent reflective glare toward any inhabited
buildings on adjacent properties and roads.
(e)
Lot coverage.
[1]
Freestanding and ground-mounted solar energy systems shall not exceed 2,000 square feet based on the perimeter occupied by the solar panels without obtaining a special use permit as a large-scale solar energy system pursuant to § 414-6 hereof.
[2]
All such systems in residential or commercial zoning districts
may be installed on all areas of a parcel in accordance with local
planning and zoning regulations and lot coverage requirements.
[3]
Freestanding and ground-mounted solar energy systems shall be
screened when possible and practicable through the use of architectural
features, earth berms, landscaping, or other screening which will
harmonize with the character of the property and surrounding area
and do not impact the effective amount of solar energy to be produced.
A.
Large-scale solar energy systems greater than 1,000 square feet based
on the perimeter occupied by the solar panels and greater than 25kW.
B.
Permitting.
(1)
Large-scale solar energy systems are permitted through the issuance of a special use permit and permitted in the following zoning districts: Residential (R-30), Residential (RA-40), Land Conservation (LC), Industrial (I), Industrial Processing (I-P), Interchange Industry (INT-I), and Interchange Retail (INT-R) subject to the requirements set forth in this section, including site plan approval pursuant to Chapter 475, Article VI of the Town Code and are allowed only after the issuance of a special use permit pursuant to Chapter 475, Article IV of the Town Code. Applications for the installation of a large-scale solar energy system shall be reviewed by the Code Enforcement Officer and referred with comments to the Planning Board (special use permit and site plan) for its review and action, which can include approval, approval with conditions, or denial.
(2)
Applications for large-scale solar energy systems that are subject
to independent professional services for inspection, engineering and
legal consultation will be the responsibility of the applicant. If
additional funds are needed in the fee account, the Planning Board
will obtain an estimate from the consultant as to the amount necessary
for completion of the remaining review(s). Said amount is to be paid
by the applicant to any further work being done by the consultant.
Balance of the deposit will be returned upon completion of the project.
The Planning Board will provide the applicant in advance with established
billing rates for engineering and legal services. All large-scale
solar energy systems projects are to be constructed and solely funded
by private investments on the behalf of the applicant. No public monies
or financial assistance will be provided to the applicant for the
construction, maintenance or decommissioning of a large-scale solar
energy system.
(3)
Areas of potential sensitivity:
(4)
Special use permit application requirements. For a special use permit application, the applicant shall submit the site plan application and any information required by Chapter 475, Article VI, and a special use permit application and any information required by Chapter 475, Article IV, including the following information:
(a)
If the property of the proposed project is to be leased, proof
of legal consent between all parties, specifying the use(s) of the
land for the duration of the project, including easements and other
agreements, shall be submitted.
(b)
A letter providing proof of feasibility from the local utility
company is to be provided as part of the application, indicating that
utility company can handle the demands of the proposed project.
(c)
A boundary survey prepared by a New-York-State-licensed professional
is to be provided, including the metes and bounds, monumentation,
tax map information, property acreage, and easements.
(d)
A schematic color rendering of the project site and proposed
improvements.
(e)
Soil survey and mapping are to be provided in accordance with
the U.S. Department of Agriculture Natural Resources Conservation
Service (NRCS)'s Soil Survey Geographic (SSURGO) Database on
Web Soil Survey to assist the Planning Board in determining the impacts
of the project.
(f)
The equipment specification sheets shall be documented and submitted
for all photovoltaic panels, significant components, mounting systems,
and inverters that are to be installed.
(g)
Plans and drawings for the large-scale solar energy system signed
by a professional engineer showing the proposed layout of the solar
energy system along with providing a description of all components,
existing vegetation, any proposed clearing and grading of the lot(s)
involved, any anticipated or possible stormwater mitigation measures,
erosion disturbances and mitigation measures, and utility lines (both
above and below ground), driveways, lighting, fencing, and landscaping
on the site and adjacent to the site.
(h)
A detailed clearing, grading, stormwater mitigation and erosion
control plan. applicant shall submit an engineered stormwater and
erosion control plan to the Town of Bergen for its review and approval
which shall demonstrate that post development runoff, storm drainage
and erosion will not be negatively impacted by placement of the large-scale
solar energy system on the site.
(i)
Any such additional information as may be required by the Town's
professional engineer or consultant, Town of Bergen Planning Board,
Town Attorney or Code Enforcement Officer.
(j)
A property operation and maintenance plan which describes all
ongoing or periodic maintenance of the large-scale solar energy system
and property upkeep, such as mowing, trimming, safety concerns, and
access. The property operation and maintenance plan shall include
details about the proposed use or uses of the remaining property not
used for the large-scale solar energy systems, as well as ingress
and egress to all portions of the property.
(k)
Decommissioning plan. To ensure the proper removal of a large-scale
solar energy system, a decommissioning plan shall be submitted as
part of the application. Compliance with this plan shall be made a
condition of the issuance of a special use permit under this section.
[1]
Decommissioning Plan. To ensure the proper removal of large-scale
solar energy systems after such improvements are no longer reasonably
operable or have been abandoned, a decommissioning plan shall be submitted
as part of the application. The decommissioning plan must specify
that after the large-scale solar energy system is no longer operational
or has been abandoned, it shall be removed by the applicant or any
subsequent owner of the improvements. The plan shall demonstrate how
the removal of all infrastructure and the remediation of soil and
vegetation 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 detailing the projected
cost of executing the decommissioning plan, which is to be prepared
by a professional engineer and shall be stamped and certified. Cost
estimations shall take into account inflation and shall be based on
the operating life expectancy of the system. If the large-scale solar
energy system is not decommissioned after being considered abandoned,
the Town or the Town's duly appointed representative or agent(s)
may remove the system and restore the property and the Town may impose
a lien on the property to cover these costs to the municipality, in
addition to any other remedies available to the Town.
[2]
A cost estimate detailing the projected cost of executing the
decommissioning plan shall be prepared by a professional engineer,
stamped, signed and submitted as part of the application with the
Town of Bergen as the designated assignee. A decommissioning surety
bond (or other form of surety acceptable to the Town of Bergen, at
its discretion) shall be issued to the Town of Bergen in that amount
and shall remain in effect for as long as the large-scale solar energy
system is in existence. The bond amount shall equal the decommissioning
and reclamation costs equal to 110% of the estimated removal cost
for the entire system and be approved by the Planning Board. The cost
estimations shall also take into account inflation. The bond shall
remain valid until the decommissioning obligations have been met.
A twenty-year bond will be required for all large-scale solar energy
systems, which will require renewal after 15 years, for an additional
20 years. The cost estimate shall be reviewed by the Town Engineer
and approved by the Town Attorney.
[3]
The plan shall demonstrate how the removal of all infrastructure
both above and below ground and the remediation of soil and vegetation
shall be conducted to return the parcel to the condition the property
was in prior to the installation of the large-scale solar energy system.
[4]
In the event that the owner or lessee of any large-scale solar
energy system ceases for a period of six months to use or operate
the said system or in the event the said system fails to generate
electrical energy, as supported by metered use thereof, or where the
special use permit or site plan approval has been revoked by the Town
of Bergen Planning Board, or if the solar energy system has been deemed
by the Code Enforcement Officer to be inoperative, the lot shall be
restored to its predevelopment condition. All such costs of removal
shall be the sole responsibility of the permit holder and/or owner
of the solar energy system. If the owner or lessee does not dismantle
the facility and remove all improvements associated with the large-scale
solar energy system from the site upon the occurrence of either event,
the Code Enforcement Officer may recommend to the Town Board that
the Town Board declare the system abandoned based on said events and
the Town Board, upon receiving the recommendation of the Code Enforcement
Officer and holding a hearing on due notice to the property owner
and operator of the facility, may declare the system abandoned and
order the dismantling and removal of the system by the owner and/or
operator or, after the passing of 30 days from the date the Planning
Board declares the facility abandoned, by Town staff or by a third
party on contract with the Town.
[5]
Removal of all large-scale solar energy systems shall be in accordance with the decommissioning plan required by § 414-6B(4)(k)[1]. Failure to dismantle and remove a facility and restore the site to its natural state within 30 days after said facility has been declared abandoned by the Planning Board upon recommendation of the Code Enforcement Officer will result in forfeiture or the filing of a claim against the decommissioning surety bond posted by said owner or lessee of said facility. The Town may also impose a lien on the property to cover removal costs, plus a service charge of 25% thereof, to cover the cost of supervision and administration to the Town, and such amount shall be assessed against the property on which the facility was situated. The amount so assessed shall constitute a lien and charge on the real property on which it is levied until paid or otherwise satisfied or discharged and shall be collected in the same manner and at the same time as other Town taxes and charges.
[6]
Removal of large-scale solar energy systems must be completed
in accordance with the decommissioning plan.
(l)
Construction schedule. applicants must submit a proposed schedule
for the completion of the project, including the proposed start date
and proposed date of substantial completion, the expected date of
connection to the power grid, and the expected date on which operation
of the photovoltaic system shall commence.
(5)
Special use permit standards. No special use permit for a large-scale
solar energy system shall be issued unless the Planning Board specifically
finds that the proposed project is in compliance with each of the
following:
(a)
Setbacks. Large-scale solar energy systems shall be sited to
create a front setback of no less than 200 feet from the right-of-way
line of the road and setbacks of 100 feet from all side and rear property
lines. In addition, no large-scale solar energy system shall be located
closer than 500 feet from any residential structure located on another
parcel.
(b)
Height. No part of the large-scale solar energy system shall
exceed 10 feet in height when oriented at maximum tilt. At the Planning
Board's discretion, a height waiver from this section may be
requested on behalf of the applicant.
(c)
Lot coverage. A large-scale solar energy system that is ground-mounted
shall not exceed 50% of the lot on which it is installed. The entire
surface area of the solar panels shall be included in the total area
regardless of the method by which the panels are supported or attached
to the ground, or the angle at which they are placed.
(d)
Large-scale solar energy systems shall be located on lots with
a minimum size of one acre, and shall not exceed 10 acres
(e)
Security. All large-scale solar energy systems shall be enclosed
by fencing to prevent unauthorized access, unless the Planning Board
determines that fencing will cause environmental or ecological problems,
or that such fencing is unnecessary. If the Planning Board makes such
a determination, then the applicant must provide for other means,
acceptable to the Planning Board, to prevent access to circuit conductors
and other electrical components of the system. Warning signs with
the property owner's contact information shall be placed on the
entrance and perimeter of the property and of the solar energy system
at locations acceptable to the Planning Board. Any fencing installed
shall be acceptable to the Planning Board and shall include screening
of said fencing as required by the Planning Board.
(f)
Drainage. All large-scale solar energy systems shall include
a drainage and stormwater management plan that is acceptable to the
Planning Board. Any soil removed during construction must be stored
on site and will be required to be seeded and/or mulched within 14
days of the last grading activity.
(g)
Easements. All large-scale solar energy systems shall provide
access, maintenance, and utility easements that are acceptable to
the Planning Board. If the large-scale solar energy system will be
operated by any entity other than the property owner, the Planning
Board must approve the lease or contractual agreement between the
property owner and the system operator.
(h)
The Planning Board must approve the decommissioning plan submitted
by the applicant. The Planning Board shall require that the applicant
or property owner post an automatically renewing security bond for
construction, maintenance, and removal of solar energy systems.
(i)
The Planning Board must approve the property operation and maintenance
plan submitted by the applicant.
(j)
All access roads and paths required for the project shall be
integrated into other uses on the property, if possible. Access road
siting and grading shall be designed to minimize any negative impacts
from stormwater drainage.
(k)
All large-scale solar energy systems shall be adequately screened,
as determined by the Planning Board, to avoid adverse aesthetic impacts.
A landscaped buffer shall be provided around all equipment and solar
collectors to provide screening from adjacent residential properties
and roads.
(l)
Any application under this section shall meet any substantive
provisions contained in local site plan requirements in the Zoning
Code that, in the judgment of the Planning Board, are applicable to
the system being proposed. If none of the site plan requirements are
applicable, the Planning Board may waive the requirement for site
plan review.
(m)
The Planning Board may impose conditions on the approval of
any special use permit under this section in order to enforce the
standards referred to in this section, or in order to discharge its
obligations under the State Environmental Quality Review Act (SEQRA).
(n)
The development of large-scale solar energy systems shall not
have a significant adverse impact of fish, wildlife or plant species
or their critical habitats, or other significant habitats identified
by the Town of Bergen or other federal or state regulatory agencies.
(o)
A special use permit shall expire 18 months from the date of
issuance if the proposed activity has not been substantially implemented
as determined by the Planning Board. One twelve-month extension may
be granted by the Planning Board.
A.
Any violation of this chapter shall be subject to the same civil
and criminal penalties provided for in the Town of Bergen Town Code
(including any applicable zoning regulations) and/or the laws of New
York State.
B.
The Code Enforcement Officer is hereby authorized to make inspections
to determine compliance with the provisions of this chapter. When
the Code Enforcement Officer determines that there is a violation,
he shall cause a written notice thereof to be served upon the owner
of the property in violation. Such notice shall include a statement
of the conditions that violate the provision of this chapter and the
action required to correct such violations.
C.
The Code Enforcement Officer will specify the time and nature of
work to be done to correct such violation.
D.
Upon failure to comply with said notice, the Code Enforcement Officer
may prepare an appearance ticket returnable to the Town of Bergen
Court.
E.
Whenever such notice has been legally served upon the owner of a
noncompliant premises, and such owner shall neglect or fail to comply
with the requirements of such notice within the time period provided
therein, the Town Board may authorize the work to be done and pay
the cost thereof out of general Town funds to be appropriated by the
Town Board for such purposes.
F.
The Town shall be reimbursed by the owner for the cost of work performed
or services rendered. Said costs may be secured by a lien placed upon
the premises.
A.
Any person who violates or knowingly permits the violation of this chapter shall be deemed to have committed an offense against this chapter and shall be subject to the penalties provided in Chapter 1, General Provisions. Each separate violation shall constitute a separate additional offense. However, for the purpose of conferring jurisdiction upon courts and judicial officers generally, violations of this chapter shall be deemed misdemeanors, and for such purpose only, all provisions of law relating to misdemeanors shall apply to such violations. Every day of such violation after the thirty-day period for compliance shall be deemed to constitute a separate additional offense. Notwithstanding the foregoing, any person violating any provision of this chapter or any article, section or subdivision thereof shall be subject to a civil penalty in the sum of $350 for the first such violation, $700 for the second such violation and $1,000 for any subsequent violation, said penalties to be recoverable in a civil action in the name of the Town of Bergen.
B.
Any person who violates this chapter may be enjoined from a continuing
violation hereof in an action in any court of competent jurisdiction,
and in the event that an injunction is granted enjoining said violation,
the party seeking said injunction shall be entitled to recover the
costs, disbursements and reasonable attorney fees incurred in connection
with bringing and prosecuting said action.
If any clause, sentence, paragraph, subsection, section or part
of this chapter, or the application thereof to any person, individual,
firm or corporation, or circumstance shall be adjudged by a court
of competent jurisdiction to be invalid or unconstitutional, such
order or judgment shall not affect, impair or invalidate the remainder
thereof, but shall be confined in its operation to the clause, sentence,
paragraph, subsection, section or part of this chapter, or in its
application to the person, individual, firm or corporation, or circumstance
directly involved in the controversy in which said order or judgment
shall be rendered.
