[Added 9-13-2018 by L.L. No. 3-2018; amended 8-12-2021 by L.L. No. 3-2021]
The Town Board of the Town of Avon states the following as its
findings and legislative intent:
A.
This article is adopted pursuant to New York State Town Law §§ 261,
263 and 264, which authorize the Town of Avon to adopt zoning provisions
that advance and protect the health, safety, and welfare of the community.
B.
The Town Board of the Town of Avon recognizes that solar energy is
a clean, readily available and renewable energy source and the Town
of Avon intends to accommodate the use of solar energy systems.
C.
However, the Town Board finds it is necessary to properly site and
regulate solar energy systems within the boundaries of the Town of
Avon to protect residential uses, prime farmland, farmland of statewide
importance, business areas and other land uses, to preserve the natural
resources, overall beauty, nature and character of the Town of Avon,
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 Avon.
D.
The previously adopted Article XV has become insufficient to adequately address the many new aspects of solar energy system (as hereinafter defined) development that have arisen since its original adoption. Accordingly, the Town Board finds that the adoption of these updated and enhanced regulations is necessary to properly direct the location, size and construction of these solar energy systems.
The following definitions shall apply to this article:
The person or entity submitting 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 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 article, said term shall include any person acting as
an applicant, owner or operator of such solar energy 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.
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, intended to produce
energy for on-site consumption or credit for on-site consumption for
a building, single-family residence, multifamily residence, business
or farm, but not including those mounted to the roof or top surface
of a building.
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, intended to produce
energy for off-site sale to and consumption by one or more customers.
The removal and disposal of all solar panels, solar energy
equipment, structures, equipment and accessories, including subsurface
foundations and all other material, concrete, wiring, cabling, or
debris, that were installed in connection with a solar energy system
and the restoration of the parcel of land to the original state prior
to construction on which the solar energy system is built to either
of the following, at the landowner's (either the initial landowner
or its heirs, successors or assigns) sole option: (i) the condition
such lands were in prior to the development, construction and operation
of the solar energy system, including, but not limited to, restoration,
regrading, and reseeding, or (ii) the condition designed by landowner
(either the initial landowner or its heirs, successors or assigns)
and the Town. Details of the expected decommissioning activities and
costs are to be described in the decommissioning plan and decommissioning
agreement as may be required pursuant to this article.
A written agreement between applicant, initial landowner
and Town that sets forth the obligations of the applicant and/or the
initial landowner to properly decommission the solar energy system
if the use of such system is discontinued, abandoned or becomes inoperable.
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, that is of statewide importance for the production
of food, feed, fiber, forage and oilseed crops as determined by the
appropriate state agency or agencies.
The effect by reflections of light with intensity sufficient
as determined in a commercially reasonable manner to cause annoyance,
discomfort, or loss in visual performance and visibility in any material
respects.
Any solar energy system that is affixed to the ground either
directly or by support structures or other mounting devices where
such structure and mounting exists solely to support the solar energy
system.
The record title owner to the real property upon which a
solar energy systems is constructed, at the time such solar energy
system is originally constructed.
Land, designated as "prime farmland" in the U.S. Department
of Agriculture Natural Resources Conservation Service (NRCS)'s
Soil Survey Geographic (SSURGO) Database 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 uses.
It has the soil quality, growing season, and moisture supply needed
to produce economically sustained high yields of crops when treated
and managed according to acceptable farming methods, including water
management. In general, prime farmlands have an adequate and dependable
water supply from precipitation or irrigation, a favorable temperature
and growing season, acceptable acidity or alkalinity, acceptable salt
and sodium content, and few or no rocks. They are permeable to water
and air. Prime farmlands are not excessively erodible or saturated
with water for a long period of time, and they either do not flood
frequently or are protected from flooding.
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, intended to produce energy for on-site consumption
or credit for on-site consumption for a building, single-family residence,
multifamily residence, business or farm.
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, intended to produce energy for off-site sale
to and consumption by one or more customers.
Electrical energy devices, material, hardware, inverters,
or other electrical equipment and conduit, not to include any type
of battery energy storage system or similar device, that are used
with solar panels to produce and distribute electricity.
An electrical energy generating system composed of a combination
of both solar panels and solar energy equipment.
A photovoltaic device capable of collecting and converting
solar energy into electrical energy.
The vertical angle, where 0° minimum tilt means the panel
is laying flat, and 90° maximum tilt means that it is vertical.
The Town of Avon, Livingston County, New York.
A ground-mounted solar energy system intended to produce energy for on-site consumption or credit for on-site consumption for a building, single-family residence, multifamily residence, business or farm. Said system shall be considered an accessory use (as defined in § 130-5) and an accessory structure, designed and intended to generate electricity solely for use on the premises, potentially for multiple tenants, through a distribution system that is not available to the public. Such Type 1 solar energy systems may consist of solar energy systems located on multiple sites within the jurisdictional limits of the Town of Avon, owned by the same person, entity, farm or business, but in no instance shall the aggregate yield on the combined systems equal more than 110% of the electricity consumed by such person, entity, farm or business within the previous 12 months, nor shall the aggregate coverage of the combined solar panels and solar energy equipment across all parcels exceed 25 acres. Type 1 solar energy systems can be developed, operated and maintained by a third party by lease agreement or through a power purchase agreement.
A ground-mounted solar energy system intended to produce
energy for off-site sale to and consumption by one or more customers.
Subject to the provisions of this article, solar energy systems
shall be allowed as follows:
A.
Building-integrated solar energy systems are allowed in all zoning
districts upon issuance of a building permit based on special application
materials supplied by the Town building and Code Department.
B.
Building-mounted solar energy systems are allowed in all zoning districts
upon issuance of a building permit based on special application materials
supplied by the Town building and Code Department.
C.
Rooftop-mounted solar energy systems are permitted in all zoning
districts, subject to the following:
(1)
The placement, construction and major modification of roof-mounted solar energy systems shall only be permitted upon issuance of a building permit (pursuant to § 130-45C) based on special application materials supplied by the Town building and Code Department.
(2)
Height exemptions. Roof-mounted solar energy systems shall not benefit from height exemptions as set forth in § 130-32.
(3)
Roof-mounted solar energy system design standards. Roof-mounted solar
energy system installations shall comply with the following design
criteria:
(a)
Solar panels facing the front yard must be mounted at the same
angle as the roof's surface with a maximum distance of 18 inches
between the roof's surface and highest edge of the solar energy
system at any point. Solar panels not facing the front yard can be
mounted at any angle relative to the roof's surface, but shall
not exceed a maximum height of 18 inches from the surface of the roof
to the highest edge of the solar energy system at any point.
(b)
No part of a roof-mounted solar energy system shall extend above,
beyond, or below the edge of the roof it is mounted to. Additionally,
the Code Enforcement Officer may require, at his/her sole discretion,
a minimum three-foot wide center walkway for safe access purposes.
(c)
If feasible, solar energy equipment shall be installed inside
walls and attic spaces to reduce their visual impact.
(d)
If feasible, solar panels affixed to a flat roof shall be placed
below the line of sight from a public right-of-way.
D.
Commercial building-mounted solar energy systems are allowed in the following zoning districts: Agricultural District (A), General Business District (B-1), Hamlet Commercial District (HCD), Light Industrial District (L-I), Combined General Business - Light Industrial District (B1-LI) and Restricted Business District. Commercial building-mounted solar energy systems are subject to the requirements set forth in this article, including site plan approval pursuant to § 130-45E, and are allowed only after the issuance of a special use permit pursuant to § 130-35. Applications for the installation of a commercial building-mounted solar energy system shall be reviewed by the Zoning Enforcement Officer and referred, with comments, to the Town of Avon Planning Board (for site plan) and the Town of Avon Zoning Board of Appeals (for special use permit) for their review and action, which can include approval, approval on conditions, or denial.
(1)
Special use permit application requirements. For a special use permit application, the applicant shall submit to the Zoning Board of Appeals the site plan application provided to the Planning Board, any information required by § 130-35 and the following documents and information:
(a)
If the location of the proposed project is to be leased (either building facade or surface and/or real property), proof of legal consent between all parties, specifying the use(s) of the leased area(s) for the duration of the project, including any signed lease agreement, easements and other agreements between the parties. Any lease agreement between the applicant and an initial landowner shall conform to or be amended such that it conforms with the requirements for applicant and initial landowner as set forth in the decommissioning agreement referenced in § 130-80D(1)(i)[1] below.
(b)
Plans and drawings for the commercial building-mounted 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, any non-building mounted improvements or infrastructure,
any proposed clearing and grading of the lot(s) on which the structure
housing a commercial building-mounted solar energy system is situate,
any anticipated or possible stormwater runoff or erosion disturbances
resulting from the placement of the commercial building-mounted solar
energy system, and utility lines (both above and below ground) on
the site and adjacent to the site. The applicant shall also provide
a structural analysis signed by a professional engineer, demonstrating
the structural adequacy of the building upon which a commercial building-mounted
solar energy system is to be placed to support such system in a safe
fashion.
(c)
Submitted plans and drawings shall show all property lot lines
and the location and dimensions of all existing buildings or structures
and uses on any parcel within 500 feet of the outer perimeter of the
commercial building-mounted solar energy system.
(d)
Equipment specification sheets shall be provided for all solar
panels, significant components, mounting systems, inverters or other
solar energy equipment that are to be installed.
(e)
A Property Operation and Maintenance Plan which describes all
ongoing or periodic maintenance of the solar energy system and upkeep
of the property that houses such commercial building-mounted solar
energy system. Such Plan shall provide for biennial preventative maintenance
site inspections that will include a representative from the owner
or operator of the solar energy system and Code Enforcement Officer
(or his/her designated representative). Additionally, the owner or
operator shall provide the Code Enforcement Officer with reports of
annual safety inspections of the solar energy system, as well as quarterly
reports of inspection of the security systems relating to such solar
energy systems. Said plan shall demonstrate how the applicant (or
the successor owner of the solar energy system) shall ensure proper
removal and disposal of all solar panels and/or solar energy equipment
that becomes inoperable or is no longer being utilized and the same
shall be disposed of outside the jurisdictional limits of the Town
of Avon, unless there is a properly certified and/or licensed recycling
facility within the Town that recycles solar panels and solar energy
equipment.
(f)
Clearing, grading, stormwater and erosion control plan. If deemed
desirable by the Planning Board, Zoning Board of Appeals or the Town's
professional engineer or consultant, applicant shall submit an engineered
stormwater and Erosion Control Plan to the Town of Avon Engineer 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 commercial building-mounted solar energy system
on the site.
(g)
Parking and truck traffic. Applicant shall a designated parking
area on the site of the solar energy system for employees of applicant
(or the successor owner of the solar energy system) to park when providing
monitoring or maintenance of the solar energy system. Additionally,
the plans and drawings for a commercial building-mounted solar energy
system shall show adequate staging areas during the construction process
to ensure that roadways are not impacted by delivery of materials.
The plans and drawings shall also show all areas in which stockpiling
of materials and equipment will take place during construction. Applicant
shall provide data on anticipated truck trips per day, including during
peak material delivery periods, which shall also be provided to the
New York State Department of Transportation.
(h)
Any such additional information as may be required by the Town's
professional engineer or consultant, Town of Avon Planning Board,
Town of Avon Zoning Board of Appeals, Town Attorney or Code Enforcement
Officer.
(i)
Decommissioning plan. To ensure the proper removal of a commercial
building-mounted solar energy system 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 shall contain a written and visual record of the original site
condition (prior to installation of any solar energy equipment) to
facilitate complete remediation upon decommissioning. The decommissioning
plan must specify that after the commercial building-mounted 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 of
the commercial building-mounted solar energy system and all solar
energy equipment shall be conducted to return the structure(s) and
parcel housing such system 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 or reputable
contractor. Cost estimations shall take into account inflation and
shall be based on the operating life expectancy of the system.
[1]
Prior to obtaining a building permit and as a condition to issuance of any special use permit, the applicant and initial landowner must enter into a decommissioning agreement with the Town that sets forth the obligations of the applicant and/or the initial landowner to properly decommission the solar energy system if the use of such system is discontinued, abandoned or becomes inoperable pursuant to § 130-82 of this article. Said decommissioning agreement shall require the applicant to provide an irrevocable financial security bond (or other form of surety acceptable to the Town of Avon at its discretion) for the removal of the commercial building-mounted solar energy system, with Avon as the designated assignee/beneficiary, in an amount approved by the Planning Board which is equal to 110% of the estimated removal cost. The bond or surety shall provide for an annual increase in the amount of the surety to compensate for the cost of inflation or any other anticipated increase in costs of removal. Each year after a commercial building-mounted solar energy system has been constructed, and no later than 60 days' prior to the anniversary date of the issuance of the building permit for such system, the then owner/permit holder for the system shall provide the Town of Avon with written proof that the required financial security bond (or other form of surety) is still operable and valid and that such surety has been properly increased to account for inflation or any other anticipated increase in costs of removal as provided for above. The decommissioning agreement shall provide that initial landowner (or the successor and/or assigns of initial landowner) shall be responsible for all obligations pursuant to the decommissioning agreement in the event applicant (or the successor owner of the solar energy system) does not complete all obligations as required by said decommissioning agreement. The decommissioning agreement shall be recorded at the office of the Livingston County Clerk and shall be indexed as deed restrictions against the property upon which the solar energy system is constructed, with the Town as a benefitted party, so as to put all future owners of the subject real property on notice of the obligations contained in the decommissioning agreement.
(2)
Special use permit and site plan approval standards.
(a)
Height. Commercial building-mounted solar energy systems shall
not be constructed in such a way that any portion of such system is
higher than the highest point of the wall upon which it is attached.
(b)
Distance from building. Commercial building-mounted solar energy
systems shall not be constructed in such a way that any portion of
the solar panels project more than 18 inches from the surface of the
wall upon which it is attached.
(c)
Fencing and screening. All solar energy equipment shall be securely
enclosed or placed about the property so as to prevent unauthorized
access. Warning signs with the owner's contact information shall
be conspicuously placed and maintained to aid in preventing injury
by unauthorized access.
(d)
Glare. All solar panels shall have anti-reflective coatings(s).
(e)
Number of commercial building-mounted solar energy systems allowed
per lot. More than one commercial building-mounted solar energy system
may be permitted and allowed per lot or parcel, regardless of lot
size.
(f)
Any commercial building-mounted solar energy system shall be
accessible for all emergency service vehicles and personnel to the
satisfaction of the Livingston County Office of Emergency Management
Services and local fire chief.
(g)
After completion of a commercial building-mounted solar energy
system, the applicant shall provide a post-construction certificate
from a professional engineer registered in New York State stating
that the solar energy system complies with all applicable codes and
industry practices and has been constructed and is operating according
to the design plans.
(h)
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 powers related to the completion of a commercial building-mounted
solar energy system.
(i)
Any application under this section shall meet substantive site plan requirements in § 130-45E that, in the judgment of the Avon Town Planning Board, are applicable to the solar energy system being proposed.
(j)
The Planning Board shall be required to hold a public hearing
relating to site plan for any commercial building-mounted solar energy
system.
(k)
Prior to determination or issuance of any permit, all commercial
building-mounted solar energy system applications shall be subject
to review pursuant to the New York State Environmental Quality Review
Act (16 NYCRR 617). The Avon Planning Board and the Avon Zoning Board
of Appeals shall conduct a coordinated review.
(l)
Time limit on completion. After receiving site plan approval
and special use permit approval of a commercial building-mounted solar
energy system, an applicant shall obtain a building Permit within
12 months of such approvals or the approvals shall automatically terminate
and be deemed null and void. Additionally, the applicant shall complete
construction of an approved (site plan and special use permit) commercial
building-mounted solar energy system within 24 months of obtaining
such approvals or the approvals shall automatically terminate and
be deemed null and void and be of no force an effect at law.
(m)
General complaint process. During construction, the Code Enforcement
Officer can issue a stop-work order at any time for any violations
of a special use permit approval or condition, site plan approval
or condition or building Permit. After construction is complete, the
permit holder of a commercial building-mounted solar energy system
shall establish a contact person, including name and telephone number
for receipt of any complaint concerning any permit, approval, maintenance,
or operational requirements.
(n)
Inspections. Upon reasonable notice, the Town of Avon Code Enforcement
Officer, or his or her designee, may enter a lot on which a commercial
building-mounted solar energy system has been approved for the purpose
of determining compliance with any requirements or conditions of this
article or any approval given or permit issued pursuant to this article.
Twenty-four-hours' notice by telephone to the owner/operator
or designated contact person shall be deemed reasonable notice. Furthermore,
a commercial building-mounted solar energy system shall be inspected
by a New York State-licensed professional engineer that has been approved
by the Town of Avon at any time upon a determination by the Town's
Code Enforcement Officer that damage to such system may have occurred,
and a copy of the written inspection report shall be submitted to
the Code Enforcement Officer. Any fee or expense associated with this
inspection shall be borne entirely by the permit holder and shall
be reimbursed to the Town of Avon within 30 days after delivery to
the permit holder of an invoice substantiating such charges. Any failure
to pay such reimbursable charges may result in revocation of any special
use permit granted. The Town of Avon reserves the right to levy all
such un-reimbursed expenses onto the real property tax bill associated
with the real property upon which the commercial building-mounted
solar energy system is located.
E.
Commercial Roof-mounted solar energy systems are allowed in the following zoning districts: Agricultural District (A), General Business District (B-1), Hamlet Commercial District (HCD), Light Industrial District (L-I), Combined General Business - Light Industrial District (B1-LI) and Restricted Business District. Commercial roof-mounted solar energy systems are subject to the requirements set forth in this article, including site plan approval pursuant to § 130-45E, and are allowed only after the issuance of a special use permit pursuant to § 130-35. Applications for the installation of a commercial roof-mounted solar energy system shall be reviewed by the Zoning Enforcement Officer and referred, with comments, to the Town of Avon Planning Board (for site plan) and the Town of Avon Zoning Board of Appeals (for special use permit) for their review and action, which can include approval, approval on conditions, or denial.
(1)
Special use permit application requirements. For a special use permit application, the applicant shall submit to the Zoning Board of Appeals the site plan application provided to the Planning Board, any information required by § 130-35 and the following documents and information:
(a)
If the location of the proposed project is to be leased (either building facade or roof surface and/or real property), proof of legal consent between all parties, specifying the use(s) of the leased area(s) for the duration of the project, including any signed lease agreement, easements and other agreements between the parties. Any lease agreement between the applicant and an initial landowner shall conform to or be amended such that it conforms with the requirements for applicant and initial landowner as set forth in the decommissioning agreement referenced in § 130-80E(1)(i)[1] below.
(b)
Plans and drawings for the commercial roof-mounted 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, any non-building mounted improvements or infrastructure,
any proposed clearing and grading of the lot(s) on which the structure
housing a commercial roof-mounted solar energy system is situated,
any anticipated or possible stormwater runoff or erosion disturbances
resulting from the placement of the commercial roof-mounted solar
energy system, and utility lines (both above and below ground) on
the site and adjacent to the site. The applicant shall also provide
a structural analysis signed by a professional engineer, demonstrating
the structural adequacy of the building and roof upon which a commercial
roof-mounted solar energy system is to be placed to support such system
in a safe fashion.
(c)
Submitted plans and drawings shall show all property lot lines
and the location and dimensions of all existing buildings or structures
and uses on any parcel within 500 feet of the outer perimeter of the
commercial roof-mounted solar energy system.
(d)
Equipment specification sheets shall be provided for all solar
panels, significant components, mounting systems, inverters or other
solar energy equipment that are to be installed.
(e)
A Property Operation and Maintenance Plan which describes all
ongoing or periodic maintenance of the solar energy system and upkeep
of the property that houses such commercial roof-mounted solar energy
system. Such Plan shall provide for biennial preventative maintenance
site inspections that will include a representative from the owner
or operator of the solar energy system and Code Enforcement Officer
(or his/her designated representative). Additionally, the owner or
operator shall provide the Code Enforcement Officer with reports of
annual safety inspections of the solar energy system, as well as quarterly
reports of inspection of the security systems relating to such solar
energy systems. Said plan shall demonstrate how the applicant (or
the successor owner of the solar energy system) shall ensure proper
removal and disposal of all solar panels and/or solar energy equipment
that becomes inoperable or is no longer being utilized and the same
shall be disposed of outside the jurisdictional limits of the Town
of Avon, unless there is a properly certified and/or licensed recycling
facility within the Town that recycles solar panels and solar energy
equipment.
(f)
Clearing, grading, stormwater and erosion control plan. If deemed
desirable by the Planning Board, Zoning Board of Appeals or the Town's
professional engineer or consultant, applicant shall submit an engineered
Stormwater and Erosion Control Plan to the Town of Avon Engineer 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 commercial roof-mounted solar energy system on
the site.
(g)
Parking and truck traffic. Applicant shall a designated parking
area on the site of the solar energy system for employees of applicant
(or the successor owner of the solar energy system) to park when providing
monitoring or maintenance of the solar energy system. Additionally,
the plans and drawings for a commercial roof-mounted solar energy
system shall show adequate staging areas during the construction process
to ensure that roadways are not impacted by delivery of materials.
The plans and drawings shall also show all areas in which stockpiling
of materials and equipment will take place during construction. Applicant
shall provide data on anticipated truck trips per day, including during
peak material delivery periods, which shall also be provided to the
New York State Department of Transportation.
(h)
Any such additional information as may be required by the Town's
professional engineer or consultant, Town of Avon Planning Board,
Town of Avon Zoning Board of Appeals, Town Attorney or Code Enforcement
Officer.
(i)
Decommissioning plan. To ensure the proper removal of a commercial
roof-mounted solar energy system 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 shall contain a written and visual record of the original site
condition (prior to installation of any solar energy equipment) to
facilitate complete remediation upon decommissioning. The decommissioning
plan must specify that after the commercial roof-mounted 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 of
the commercial roof-mounted solar energy system and all solar energy
equipment shall be conducted to return the structure(s) and parcel
housing such system 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 or reputable
contractor. Cost estimations shall take into account inflation and
shall be based on the operating life expectancy of the system.
[1]
Prior to obtaining a building permit and as a condition to issuance of any special use permit, the applicant and initial landowner must enter into a decommissioning agreement with the Town that sets forth the obligations of the applicant and/or the initial landowner to properly decommission the solar energy system if the use of such system is discontinued, abandoned or becomes inoperable pursuant to § 130-82 of this article. Said decommissioning agreement shall require the applicant to provide an irrevocable financial security bond (or other form of surety acceptable to the Town of Avon at its discretion) for the removal of the commercial roof-mounted solar energy system, with Avon as the designated assignee/beneficiary, in an amount approved by the Planning Board which is equal to 110% of the estimated removal cost. The bond or surety shall provide for an annual increase in the amount of the surety to compensate for the cost of inflation or any other anticipated increase in costs of removal. Each year after a commercial roof-mounted solar energy system has been constructed, and no later than 60 days' prior to the anniversary date of the issuance of the building permit for such system, the then owner/permit holder for the solar energy system shall provide the Town of Avon with written proof that the required financial security bond (or other form of surety) is still operable and valid and that such surety has been properly increased to account for inflation or any other anticipated increase in costs of removal as provided for above. The decommissioning agreement shall provide that initial landowner (or the successor and/or assigns of initial landowner) shall be responsible for all obligations pursuant to the decommissioning agreement in the event applicant (or the successor owner of the solar energy system) does not complete all obligations as required by said decommissioning agreement. The decommissioning agreement shall be recorded at the office of the Livingston County Clerk and shall be indexed as deed restrictions against the property upon which the solar energy system is constructed, with the Town as a benefitted party, so as to put all future owners of the subject real property on notice of the obligations contained in the decommissioning agreement.
(2)
Special use permit and site plan approval standards.
(a)
Height and angle. Commercial roof-mounted solar energy systems
shall be constructed such that solar panels facing the front yard
must be mounted at the same angle as the roof's surface with
a maximum distance of 18 inches between the roof's surface and
highest edge of the solar energy system at any point. Solar panels
not facing the front yard can be mounted at any angle relative to
the roof's surface, but no portion of the solar energy system
shall exceed a maximum height of 18 inches from the surface of the
roof to the highest edge of the solar energy system at any point.
(b)
No part of a roof-mounted solar energy system shall extend above,
beyond, or below the edge of the roof it is mounted to. Additionally,
the Code Enforcement Officer may require, at his/her sole discretion,
a minimum three-foot wide center walkway for safe access purposes.
(c)
If feasible, solar energy equipment shall be installed inside
walls and attic spaces to reduce their visual impact.
(d)
Glare. All solar panels shall have anti-reflective coatings(s).
(e)
If feasible, solar panels affixed to a flat roof shall be placed
below the line of sight from a public right-of-way.
(f)
Fencing and screening. All solar energy equipment shall be securely
enclosed or placed about the property so as to prevent unauthorized
access. Warning signs with the owner's contact information shall
be conspicuously placed and maintained to aid in preventing injury
by unauthorized access.
(g)
Number of commercial roof-mounted solar energy systems allowed
per lot. More than one commercial roof-mounted solar energy system
may be permitted and allowed per lot or parcel, regardless of lot
size.
(h)
Any commercial roof-mounted solar energy system shall be accessible
for all emergency service vehicles and personnel to the satisfaction
of the Livingston County Office of Emergency Management Services and
local fire chief.
(i)
After completion of a commercial roof-mounted solar energy system,
the applicant shall provide a post-construction certificate from a
professional engineer registered in New York State stating that the
project complies with all applicable codes and industry practices
and has been constructed and is operating according to the design
plans.
(j)
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 powers related to the completion of a commercial roof-mounted
solar energy system.
(k)
Any application under this section shall meet substantive site plan requirements in § 130-45E that, in the judgment of the Avon Town Planning Board, are applicable to the solar energy system being proposed.
(l)
The Planning Board shall be required to hold a public hearing
relating to site plan for any commercial roof-mounted solar energy
system.
(m)
Prior to determination or issuance of any permit, all commercial
roof-mounted solar energy system applications shall be subject to
review pursuant to the New York State Environmental Quality Review
Act (16 NYCRR 617). The Avon Planning Board and the Avon Zoning Board
of Appeals shall conduct a coordinated review.
(n)
Time limit on completion. After receiving site plan approval
and special use permit approval of a commercial roof-mounted solar
energy system, an applicant shall obtain a building Permit within
12 months of such approvals or the approvals shall automatically terminate
and be deemed null and void. Additionally, the applicant shall complete
construction of an approved (site plan and special use permit) commercial
roof-mounted solar energy system within 24 months of obtaining such
approvals or the approvals shall automatically terminate and be deemed
null and void and be of no force an effect at law.
(o)
General complaint process. During construction, the Code Enforcement
Officer can issue a stop-work order at any time for any violations
of a special use permit approval or condition, site plan approval
or condition or building Permit. After construction is complete, the
permit holder of a commercial roof-mounted solar energy system shall
establish a contact person, including name and telephone number for
receipt of any complaint concerning any permit, approval, maintenance,
or operational requirements.
(p)
Inspections. Upon reasonable notice, the Town of Avon Code Enforcement
Officer, or his or her designee, may enter a lot on which a commercial
roof-mounted solar energy system has been approved for the purpose
of determining compliance with any requirements or conditions of this
article or any approval given or permit issued pursuant to this article.
Twenty-four-hours' notice by telephone to the owner/operator
or designated contact person shall be deemed reasonable notice. Furthermore,
a commercial roof-mounted solar energy system shall be inspected by
a New York State licensed professional engineer that has been approved
by the Town of Avon at any time upon a determination by the Town's
Code Enforcement Officer that damage to such system may have occurred,
and a copy of the written inspection report shall be submitted to
the Code Enforcement Officer. Any fee or expense associated with this
inspection shall be borne entirely by the permit holder and shall
be reimbursed to the Town of Avon within 30 days after delivery to
the permit holder of an invoice substantiating such charges. Any failure
to pay such reimbursable charges may result in revocation of any special
use permit granted. The Town of Avon reserves the right to levy all
such un-reimbursed expenses onto the real property tax bill associated
with the real property upon which the commercial roof-mounted solar
energy system is located.
F.
Type 1 solar energy systems are allowed as accessory uses and/or structures in all zoning districts except Planned Unit Development and Planned Development Districts. Type 1 solar energy systems which are to be located in a Planned Unit Development must comply with the requirements of § 130-17 and Type 1 solar energy systems which are to be located in Planned Development Districts must comply with the requirements of § 130-18, before the same are permitted.
(1)
The placement, construction and major modification of Type 1 solar energy systems shall only be permitted upon issuance of building permit (pursuant to § 130-45C) based on special application materials supplied by the Town building and Code Department.
(2)
Height. Type 1 solar energy systems shall not exceed a maximum height
of 15 feet as measured from the highest point of any solar panel (oriented
at maximum tilt) or solar energy equipment to the ground directly
beneath it.
(3)
Setbacks. Type 1 solar energy systems setbacks shall be twice the
standard setbacks for accessory buildings or structures within the
zoning district it is located, but in no event shall any such setback
be less than 20 feet.
(4)
Coverage. Type 1 solar energy systems ground coverage shall not exceed
the allowable total surface or area coverage for accessory buildings
or structures within the zoning district in which it is located and
in no event shall the combination of all accessory buildings and structures
located on the premises exceed 20% coverage of the entire area of
such parcel. For purposes of this provision, coverage shall be calculated
based upon the total surface area of the solar panels at minimum tilt.
(5)
Glare. All solar panels shall have anti-reflective coatings(s).
(6)
All Type 1 solar energy systems located in One-Family Residential
Districts (R-1), One- and Two-Family Residential Districts (R-2),
Multiple-Family Residential Districts (R-3), Limited Residential Districts
(LR) and Residential Hamlet Mixed Use Districts (RH-M) shall be installed
in the side or rear yard.
(7)
All applications for Type 1 solar energy systems for businesses (including multifamily dwellings) or farms, to the extent permitted by law, shall be subject to site plan review pursuant to § 130-45E. Applications for Type 1 solar energy systems for use on residential parcels may be subject to site plan review at the sole discretion of the Code Enforcement Officer.
(8)
Pursuant to 6 NYCRR 617.5, Type 1 solar energy systems to be used
on one- and two-family dwelling parcels shall be deemed to be Type
2 actions for purposes of review under the New York State Environmental
Quality Review Act (16 NYCRR 617). All other Type 1 solar energy systems
shall be deemed to be unlisted actions pursuant to the New York State
Environmental Quality Review Act.
G.
Type 2 solar energy systems are permitted only in Agricultural Districts (A) and are subject to the requirements set forth in this Section, including site plan approval pursuant to § 130-45E, and are allowed only after the issuance of a special use permit pursuant to § 130-35. Applications for the installation of a Type 2 solar energy system shall be reviewed by the Zoning Enforcement Officer and referred, with comments, to the Town of Avon Planning Board (for site plan) and the Town of Avon Zoning Board of Appeals (for special use permit) for their review and action, which can include approval, approval on conditions, or denial.
(1)
Special use permit application requirements. For a special use permit application, the applicant shall submit to the Zoning Board of Appeals the site plan application provided to the Planning Board, any information required by § 130-35 and the following documents and information:
(a)
If the property of the proposed solar energy system 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 between the parties. Any lease agreement between the applicant and an initial landowner shall conform to or be amended such that it conforms with the requirements for applicant and initial landowner as set forth in the decommissioning agreement referenced in § 130-80G(1)(l)[1] below. Applicant shall be required to provide, as part of the application, any lease agreement, easements and other agreements between itself and initial landowner or any owner of property contiguous to the land upon which the solar energy system (or any component thereof, including access ways or utility lines) shall be constructed.
(b)
Plans and drawings for the Type 2 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 or erosion disturbances,
and utility lines (both above and below ground) on the site and adjacent
to the site.
(c)
Submitted plans and drawings shall show all property lot lines
and the location and dimensions of all existing buildings or structures
and uses on any parcel within 750 feet of the outer perimeter fence
line of the Type 2 solar energy system.
(d)
Equipment specification sheets shall be provided for all solar
panels, significant components, mounting systems, inverters and other
solar energy equipment that are to be installed.
(e)
A Property Operation and Maintenance Plan which describes all
ongoing or periodic maintenance of the Type 2 solar energy system
and property upkeep, such as mowing and trimming, which shall also
include details of anticipated use of pesticides, herbicides and other
chemicals for vegetative abatement and/or maintenance The Plan shall
demonstrate that the use of any pesticide, herbicide or other chemical
will be in compliance with all local, state and federal regulations
and shall further demonstrate that alternatives to chemical treatments
have been prioritized to the extant reasonably possible. Such Plan
shall provide for biennial preventative maintenance site inspections
that will include a representative from the owner or operator of the
solar energy system and Code Enforcement Officer (or his/her designated
representative). Additionally, the owner or operator shall provide
the Code Enforcement Officer with reports of annual safety inspections
of the solar energy system, as well as quarterly reports of inspection
of the security systems relating to such solar energy systems. Said
Plan shall demonstrate how the applicant (or the successor owner of
the solar energy system) shall ensure proper removal and disposal
of all solar panels and/or solar energy equipment that becomes inoperable
or is no longer being utilized and the same shall be disposed of outside
the jurisdictional limits of the Town of Avon, unless there is a properly
certified and/or licensed recycling facility within the Town that
recycles solar panels and solar energy equipment. Said Plan shall
also obligate the applicant (or the successor owner of the solar energy
system) to provide the Town, not less than every other year (commencing
the second year after the solar energy system is commercially operable),
with test results from soil sampling collected and analyzed pursuant
to the New York State Department of Agriculture and Markets Guidelines
for Solar Energy Projects - Construction Mitigation for Agricultural
Lands (or similar successor document of the Department of Agriculture
and Markets) that are in effect as of the date of sampling, to demonstrate
that the soils upon which the solar energy system is constructed have
not been contaminated in any fashion as a result of the solar energy
system placed on the property. Such test results shall be compared
to the preconstruction soil sample analysis referenced in Subsection
G(j) (Pre-development site conditions) below.
(f)
Clearing, grading, stormwater and erosion control plan. Applicant
shall submit an engineered stormwater and Erosion Control Plan to
the Town of Avon Engineer 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 Type 2 solar energy
system on the site.
(g)
Parking and truck traffic. Applicant shall a designated parking
area on the site of the solar energy system for employees of applicant
(or the successor owner of the solar energy system) to park when providing
monitoring or maintenance of the solar energy system. Additionally,
the plans and drawings for a Type 2 solar energy system shall show
adequate staging areas during the construction process to ensure that
roadways are not impacted by delivery of materials. The plans and
drawings shall also show all areas in which stockpiling of materials
and equipment will take place during construction. Applicant shall
provide data on anticipated truck trips per day, including during
peak material delivery periods, which shall also be provided to the
New York State Department of Transportation.
(h)
Noise study. Applicant shall provide a noise study of the impacts
of construction and operation of the proposed solar energy system.
Said study shall reference any then existing regulations or suggested
industry or development standards put out by the NYS Office of Renewable
Energy Siting. Such study shall analyze the projected noise levels
for both daytime and nighttime periods generated by the solar energy
system and all collector substation equipment relative to all surrounding
dwellings.
(i)
Viewshed/line-of-site analysis. Applicant shall provide a viewshed/line-of-site
analysis, with scaled color visual renderings to demonstrate the adequacy
of proposed buffering/screening at the completion of construction
of the solar energy system, and similar visual renderings of the projected
maturation of the buffering/screening at five years and 10 years after
completion of the solar energy system. The Planning and/or Zoning
Board of Appeals may require the above viewshed/line-of-site analysis
and scaled color visual renderings from multiple angles or perspectives
as it/they deem appropriate.
(j)
Pre-development site condition - applicant shall provide a written
and visual record of the pre-development site condition (which shall
include the site condition prior to any logging/timber harvest or
clearing of land in anticipation of the development of a solar energy
systems), which must be verified as to being complete by the building
and Zoning Department, to facilitate full and proper remediation of
the site upon decommissioning. As part of this record, applicant shall
provide an analysis of pre-construction soil samples, with such samples
collected and analyzed pursuant to the New York State Department of
Agriculture and Markets Guidelines for Solar Energy Projects —
Construction Mitigation for Agricultural Lands (or similar successor
document of the Department of Agriculture and Markets) that are in
effect as of the date of sampling. Such samples shall be taken from
various locations on the property on which the solar energy system
is to be located and are specifically intended to demonstrate the
predevelopment condition and properties of the soils to ensure that
full and proper remediation of the site occurs upon decommissioning.
(k)
Any such additional information as may be required by the Town's
professional engineer or consultant, Town of Avon Planning Board,
Town of Avon Zoning Board of Appeals, Town Attorney or Code Enforcement
Officer.
(l)
Decommissioning plan. To ensure the proper removal of Type 2
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 Type 2 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 and/or the subsequent owner of
the property upon which the Type 2 solar energy system is placed.
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 or reputable contractor.
Cost estimations shall take into account inflation and shall be based
on the operating life expectancy of the system.
[1]
Prior to obtaining a building permit and as a condition to issuance of any special use permit, the applicant and initial landowner must enter into a decommissioning agreement with the Town that sets forth the obligations of the applicant and/or the initial landowner to properly decommission the solar energy system if the use of such system is discontinued, abandoned or becomes inoperable pursuant to § 130-82 of this article. Said decommissioning agreement shall require the applicant to provide an irrevocable financial security bond (or other form of surety such as, but not limited to, letters of credit, etc., that are acceptable to the Town of Avon at its discretion) for the removal of the Type 2 solar energy system, with Avon as the designated assignee/beneficiary, in an amount approved by the Planning Board which is equal to 150% of the estimated removal cost. The bond or surety shall provide for an annual increase in the amount of the surety to compensate for the cost of inflation or any other anticipated increase in costs of removal. Each year after a Type 2 solar energy system has been constructed, and no later than 60 days' prior to the anniversary date of the issuance of the building permit for such solar energy system, the then owner/permit holder for the system shall provide the Town of Avon with written proof that the required financial security bond (or other form of surety) is still operable and valid and that such surety has been properly increased to account for inflation or any other anticipated increase in costs of removal as provided for above. The decommissioning agreement shall provide that initial landowner (or the successor and/or assigns of initial landowner) shall be responsible for all obligations pursuant to the decommissioning agreement in the event applicant (or the successor owner of the solar energy system) does not complete all obligations as required by said decommissioning agreement. The decommissioning agreement shall be recorded at the office of the Livingston County Clerk and shall be indexed as deed restrictions against the property upon which the solar energy system is constructed, with the Town as a benefitted party, so as to put all future owners of the subject real property on notice of the obligations contained in the decommissioning agreement.
(m)
At its sole discretion, the Town of Avon Planning Board and/or
the Town of Avon Zoning Board of Appeals may refer an application
for a Type 2 solar energy system to one or more private consultants
for review to assist such Board in properly fulfilling its duties.
Such consultants may include a professional engineer, attorney, planning
consultant or other specialist. All expenses incurred by the Town
(through either Board) for this purpose shall be reimbursed to the
Town by the applicant within 30 days of the Town issuing a detailed
invoice to applicant requesting reimbursement for the same. At its
discretion and at any time during the application process, either
Board may require that applicant furnish a deposit in an amount that
it deems initially sufficient to be used for reimbursement of such
expenses. Upon request of applicant, the Board requiring the deposit
shall provide a general estimate of anticipated consulting services
to be provided and estimated costs for the same. However, any such
estimate of services or costs related to such services shall not in
any way restrict the level of reimbursement ultimately required to
be made by the applicant. It is the specific intention of this section
that all expenses relating to professional consulting services rendered
to the Town or any of its Boards, relating to an application for development
of a solar energy system, be borne by the applicant and not the taxpayers
of the Town. Any such deposit shall be held in a non-interest bearing
account and shall be used to reimburse the Town for expenses that
have been incurred as a result of such consultants. Prior to the Town
making any payment or withdrawal from such account, the Town shall
provide applicant with notice of such intended payment and documentation
supporting such payment. Applicant shall have the right, within five
business days from receipt of such notice, to protest any account
withdrawal or payment to a consultant which it contends is not reasonably
necessary or is not reasonable in amount. The Town Board shall thereafter
have 30 days to provide its determination with regard to applicant's
objection, which shall be provided to applicant in writing. Should
such deposit be depleted prior to final approval, either Board may
require that additional monies be deposited with the Town before further
review of the application will continue. A reviewing Board may suspend
indefinitely the review of any application as a result of the failure
of applicant to timely remit a required deposit or to promptly reimburse
the Town for expenses relating to such consultants. Any such suspension
shall supersede any Town of New York State law, rule or regulation
relating to the timing of issuance of decisions for such applications.
(n)
If a Type 2 solar energy system is proposed to be developed
on land that is or could be in agricultural production, applicant
shall demonstrate how the proposed development complies with the then
current guidelines as may be established by the New York State Department
of Agriculture and Markets relating to Construction Mitigation for
Agricultural Lands.
(o)
The applicant shall be required to facilitate one or more site
visits as deemed necessary or desirable by the Planning Board and/or
Zoning Board of Appeals.
(2)
Special use permit and site plan approval standards.
(a)
Height. Type 2 solar energy systems shall not exceed a maximum
height of 15 feet as measured from the highest point of any solar
panel (oriented at maximum tilt) or solar energy equipment, to the
ground directly beneath it.
(b)
Setbacks. Type 2 solar energy systems shall be sited to create
a front setback of no less than 200 feet (measured from the fence-line
of the solar energy system) from the right-of-way line of any public
or private roadways and setbacks of 100 feet (measured from the fence-line
of the solar energy system) from all side and rear property lines.
In addition, no Type 2 solar energy system shall be located closer
than 400 feet (measured from the fence-line of the solar energy system)
from any Dwelling or Accessory building containing a Dwelling Unit
that is located on another parcel. The above-stated side and rear
property setback restrictions and those setbacks relating to a Dwelling
or Accessory building containing a Dwelling Unit shall be waived on
any contiguous parcel (to that parcel upon which the solar energy
system is being developed) owned by a participating landowner that
owns the parcel upon which the subject solar energy system is being
parcel. The above waiver shall not apply to any contiguous parcels
that are not owned by the same landowner that owns the land upon which
the solar energy system is placed.
(c)
Lot/parcel size. Type 2 solar energy systems shall be located
on parcels with a minimum lot size of 25 acres.
(d)
Lot/parcel coverage. Type 2 solar energy systems shall not exceed
25 acres of coverage on parcels that are 40 acres or more in size.
On parcels that are less than 40 acres in size, Type 2 solar energy
systems coverage shall not exceed 60% of the total parcel size. It
is the intent of this restriction to protect the valuable resource
and benefits of prime farmland and farmland of statewide importance
and it is the express intention of the Town of Avon that no variance
or hardship request be granted to permit increased coverage by Type
2 solar energy systems on prime farmland and/or farmland of statewide
importance by any board or commission or other agency having legal
authority to consider and grant such a variance or hardship request.
The coverage area shall be determined by the area covered by the perimeter
of the solar energy system at minimum tilt and shall not include required
fencing or access roads.
(e)
Glare. All solar panels shall have anti-reflective coatings(s).
(f)
Fencing and screening. All Type 2 solar energy systems shall
be enclosed by fencing to prevent unauthorized access. Warning signs
with the owner's contact information shall be placed and maintained
on the entrance and perimeter of the fencing. The fencing and the
solar energy system may be required to be further screened by landscaping
to avoid adverse aesthetic impacts. All buffering/landscaping materials
shall be designed to promote sustainability, diversity and visual
variety, which shall include a mixture of plant species, sizes/heights,
deciduous and evergreen trees and/or shrubs and shall be noted in
detail on a landscaping plan that shall be approved by the Planning
Board and/or the Zoning Board of Appeals. The Planning Board and/or
the Zoning Board of Appeals shall provide for enhanced screening and
buffering for Type 2 solar energy systems that are placed adjacent
to residential zoning districts, areas containing residential parcels
or abut a public road.
(g)
Number of Type 2 solar energy systems allowed per lot. Only
one Type 2 solar energy system shall be allowed per lot or parcel,
regardless of lot size.
(h)
Recent subdivision of lot/parcel. In order to prevent circumvention
of the size and coverage restrictions set forth above, when considering
such restrictions, the Zoning Board of Appeals shall consider the
lot or parcel to be the largest configuration of the physical area
where the Type 2 solar energy system is being proposed that has existed
as a separate lot or parcel (with its own Tax Identifier Map Parcel
Number) in the official tax records of the Town of Avon within the
10 years immediately preceding the application seeking approval for
such Type 2 solar energy system. This provision is specifically intended
to prevent an owner of land from subdividing such land into smaller
parcels that would permit siting of multiple Type 2 solar energy systems
on what would have otherwise been a lot or parcel that was restricted
to one Type 2 solar energy system that would not exceed 25 acres of
coverage.
(i)
Vegetation and habitat. Type 2 solar energy system owners/developers
shall develop and provide a written vegetation management plan (which
shall be approved by the Planning Board and/or the Zoning Board of
Appeals) to implement and maintain native, non-invasive plants and
vegetation under and around the solar panels, such plantings to provide
foraging habitat beneficial to game birds, songbirds and pollinators.
To the extent practicable, when establishing perennial vegetation
and beneficial foraging habitat, owners/developers shall use native,
non-invasive plant species and seed mixes.
(j)
Any Type 2 solar energy system shall be accessible for all emergency
service vehicles and personnel to the satisfaction of the Livingston
County Office of Emergency Management Services Director and local
fire department Chief.
(k)
After completion of a Type 2 solar energy system, the applicant
shall provide a post-construction certificate from a professional
engineer registered in New York State, certifying that the Type 2
solar energy system complies with all applicable codes and industry
practices and has been constructed and is operating according to the
design plans.
(l)
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 powers related to the completion of a Type 2 solar energy
system.
(m)
Any application under this section shall meet substantive site plan requirements in § 130-45E that, in the judgment of the Avon Town Planning Board, are applicable to the system being proposed.
(n)
The Planning Board shall be required to hold a public hearing
relating to site plan for any Type 2 solar energy system.
(o)
Prior to determination or issuance of any permit, all Type 2
solar energy system applications shall be subject to review pursuant
to the New York State Environmental Quality Review Act (6 NYCRR 617).
All applications (site plan and special use permit) for approval of
a Type 2 solar energy system shall be deemed to be Type I Actions
for purposes of compliance with the New York State Environmental Quality
Review Act. The Town Planning Board and/or Zoning Board of Appeals
has the authority, pursuant to 6 NYCRR 617.4(a)(1) and (2), to classify
such actions in addition to the list established by such statute.
The Planning Board and the Zoning Board of Appeals shall conduct a
coordinated review. Such review shall not be completed or closed out,
and a final determination of significance made, until after the review
of the application has been completed.
(p)
The development and operation of a Type 2 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 Avon or other federal or state regulatory
agencies. The Avon Town Planning Board and the Avon Zoning Board of
Appeals may impose conditions on the approval of any site plan or
special use permit under this article to enforce the standards referred
to in this article or to discharge its obligations under the State
Environmental Quality Review Act.
(q)
Time limit on completion. After receiving site plan approval
and special use permit approval of a Type 2 solar energy system, an
applicant shall obtain a building Permit within 12 months of such
approvals or the approvals shall automatically terminate and be deemed
null and void. The above time period may be extended by each of the
approving Boards, at their sole discretion, upon a showing of good
cause by applicant. Additionally, the applicant shall complete construction
of an approved (site plan and special use permit) Type 2 solar energy
system within 24 months of obtaining such approvals or the approvals
shall automatically terminate and be deemed null and void and be of
no force an effect at law. The above time period may be extended by
each of the approving Boards, at their sole discretion, upon a showing
of good cause by applicant.
(r)
General complaint process. During construction, the Code Enforcement
Officer can issue a stop-work order at any time for any violations
of a special use permit approval or condition, site plan approval
or condition or building Permit. After construction is complete, the
permit holder of a Type 2 solar energy system shall establish a contact
person, including name and telephone number for receipt of any complaint
concerning any permit, approval, maintenance, or operational requirements.
(s)
Inspections. During construction and upon reasonable notice,
the Town of Avon Code Enforcement Officer, or his or her designee,
may enter a lot on which a Type 2 solar energy system has been approved
for the purpose of determining compliance with any requirements or
conditions of this article or any approval given or permit issued
pursuant to this article. Twenty-four-hours' notice by telephone
to the owner/operator or designated contact person shall be deemed
reasonable notice. After construction is completed and the solar energy
system is operational, upon reasonable cause at the discretion of
the Town of Avon Code Enforcement Officer, or his or her designee,
said Code Enforcement Officer (or his or her designee) may upon reasonable
notice may enter a lot on which a Type 2 solar energy system has been
approved for the purpose of determining compliance with any requirements
or conditions of this article or any approval given or permit issued
pursuant to this article. Furthermore, a Type 2 solar energy system
shall be inspected by a New York State licensed professional engineer
that has been approved by the Town of Avon at any time upon a reasonable
determination by the Town's Code Enforcement Officer that damage
to such system may have occurred, and a copy of the written inspection
report shall be submitted to the Code Enforcement Officer. Any fee
or expense associated with this inspection shall be borne entirely
by the permit holder and shall be reimbursed to the Town of Avon within
30 days after delivery to the permit holder of an invoice substantiating
such charges. Any failure to pay such reimbursable charges may result
in revocation of any special use permit granted. The Town of Avon
reserves the right to levy all such un-reimbursed expenses onto the
real property tax bill associated with the real property upon which
the solar energy system is located.
(t)
Construction hours. During initial construction or any major
replacement of the solar panels or solar energy equipment after initial
construction, all construction activities shall be limited to Monday
through Saturday between the hours of 7:00 a.m. and 7:00 p.m. No construction
activities shall take place on Sunday or any federal holiday.
The placement, construction and major modification of all solar
energy systems within the boundaries of the Town of Avon shall be
permitted only as follows:
A.
Any inconsistent provisions of the Code of the Town of Avon which
purport to or may be interpreted to allow solar energy systems in
other districts are hereby superseded.
B.
All solar energy systems that have received a special use permit
or building Permit as of the effective date of this article shall
be "grandfathered" and allowed to continue as they presently exist.
Routine maintenance (including replacement with a new system of like
construction and size) shall be permitted on such existing systems.
New construction other than routine maintenance on preexisting systems
shall comply with the requirements of this article.
C.
All new solar energy systems and all additions and modifications
to any preexisting solar energy system shall be designed, erected
and installed in accordance with all applicable codes, regulations
and industry standards as referenced in the NYS Uniform Fire Prevention
and building Code, the NYS Energy Conservation Code and all local
laws, codes, rules and regulations of the Town of Avon.
D.
For all commercial building-mounted solar energy systems, commercial
roof-mounted solar energy systems or Type 2 solar energy systems,
applicant and/or the successor owner or operator shall provide a written
training plan that provides for proper training of the Town Code Enforcement
Office, Fire Department, emergency responders, Livingston County Emergency
Management Services and police agencies relative to health and safety
concerns associated with larger-scale commercial solar energy systems.
Such training plan shall be implemented before the solar energy system
is made commercially operational. All costs and expenses related to
such training shall be borne by the applicant or the successor owner
or operator of the solar energy system.
E.
Any applications (including variance applications) pending for solar
energy systems on the effective date of this article shall be subject
to the provisions of this article.
F.
This article shall take precedence over any inconsistent provisions
of the Zoning regulations contained within the Code of the Town of
Avon.
G.
No solar panels or other solar energy equipment used in any solar
energy system shall utilize or contain any amount of GenX chemicals
or polyfluoroalkyl substances (PFAS).
H.
For all solar energy systems, no signage or graphic content may be
displayed on the solar energy equipment except the manufacturer's
badge, safety information and equipment specification information.
I.
For Type 2 solar energy systems, a sign not to exceed nine square
feet shall be displayed on or near the main access point and shall
list the facility name, owner and phone number, disconnect and other
emergency shutoff information, twenty-four-hour emergency contact
information, and it will be clearly displayed on a light-reflective
surface.
J.
A clearly visible warning sign concerning voltage must be placed
at the base of all pad-mounted transformers and substations.
K.
Payment in lieu of tax agreement. The owners or developers and landowners
of the property upon which commercial building-mounted solar energy
systems, commercial roof-mounted solar energy systems or Type 2 solar
energy systems are to be developed shall be required to enter into
a contract with the Town for payments in lieu of taxes pursuant to
Real Property Tax Law § 487 Subdivision 9(a). Upon the owner
or developer providing written notification to the Town of its intent
to construct a commercial building-mounted solar energy system, commercial
roof-mounted solar energy system or Type 2 solar energy system, the
Town Assessor or the Town Attorney on behalf of the taxing jurisdiction
shall notify such owner or developer in writing within 60 days of
its intent to require a contract for payments in lieu of taxes.
(1)
In no event shall such payment in lieu of tax agreement operate for
a period of more than 15 years, commencing in each instance from the
date on which the benefits of such exemption first become available
and effective under Real Property Tax Law § 487.
(2)
In no event shall such payment in lieu of tax agreement require annual
payments in an amount that would exceed the amount that would otherwise
be payable but for the exemption under Real Property Tax Law § 487.
(3)
The payment in lieu of tax agreement shall run to the benefit of
the Town of Avon and be executed by the applicant/developer as well
as the owners of the real property upon which the solar energy system
is to be located and such signatures shall be notarized in a format
that allows the payment in lieu of tax agreement to be recorded at
the Office of the Livingston County Clerk. Such payment in lieu of
tax agreement shall, prior to commencement of construction, be recorded
at the office of the Livingston County Clerk as a lien on the property
upon which and indexed against the property upon which the solar energy
system is to be constructed. The intent of the above provisions is
so that should the applicant/developer or owner of the solar energy
system default with regard to such payment in lieu of tax agreement,
that such obligation will become the responsibility of the then owner
of the property upon which the solar energy system is sited and that
failure to satisfy the terms of such agreement will permit the Town
of Avon to enforce such agreement as against the owner of the real
property and the real property.
(4)
At its sole discretion, the Avon Town Board may refer an application
for a commercial building-mounted solar energy system, commercial
roof-mounted solar energy system or Type 2 solar energy system to
one or more private consultants to assist such Board in negotiating,
drafting and/or reviewing the required payment in lieu of tax agreement.
Such consultants may include a professional engineer, attorney, planning
consultant or other specialist. All expenses incurred by the Town
for this purpose shall be reimbursed to the Town by the applicant
within 30 days of the Town issuing a detailed invoice to applicant
requesting reimbursement for the same. At its discretion and at any
time during the application process, the Town Board may require that
applicant furnish a deposit in an amount that it deems initially sufficient
to be used for reimbursement of such expenses. Upon request of applicant,
the Town shall provide a general estimate of anticipated consulting
services to be provided and estimated costs for the same. However,
any such estimate of services or costs related to such services shall
not in any way restrict the level of reimbursement ultimately required
to be made by applicant. It is the specific intention of this section
that all expenses relating to professional consulting services rendered
to the Town or any of its Boards, relating to an application for development
of a solar energy system, be borne by the applicant and not the taxpayers
of the Town. Any such deposit shall be held in a non-interest-bearing
account and shall be used to reimburse the Town for expenses that
have been incurred as a result of such consultants. Prior to the Town
making any payment or withdrawal from such account, the Town shall
provide applicant with notice of such intended payment and documentation
supporting such payment. Applicant shall have the right, within five
business days from receipt of such notice, to protest any account
withdrawal or payment to a consultant which it contends is not reasonably
necessary or is not reasonable in amount. The Town Board shall thereafter
have 30 days to provide its determination with regard to applicant's
objection, which shall be provided to applicant in writing. Should
such deposit be depleted prior to final approval of the required payment
in lieu of tax agreement, the Town Board may require that additional
monies be deposited with the Town before further processing of the
payment in lieu of tax agreement will continue. The Town Board may
suspend indefinitely the negotiation and drafting and review of the
payment in lieu of tax agreement as a result of the failure of applicant
to timely remit a required deposit or to promptly reimburse the Town
for expenses relating to such consultants. Any such suspension shall
supersede any Town of New York State law, rule or regulation relating
to the timing of issuance of approvals for such payment in lieu of
tax agreements.
(5)
No building permit may be issued for any approved commercial building-mounted
solar energy system, commercial roof-mounted solar energy system or
Type 2 solar energy system until such time as a payment in lieu of
tax agreement has been executed by all parties.
L.
Community benefit agreement. The owners or developers and landowners
of the property upon which a commercial building-mounted solar energy
system, commercial roof-mounted solar energy system or Type 2 solar
energy system is to be developed shall be required to enter into a
community benefit agreement with the Town for payment by the owners,
developers or landowners to the Town of an agreed upon monetary amount
or provision of a specified public improvement or improvements that
shall act to offset the potential negative impacts that may be associated
with a commercial building-mounted solar energy system, commercial
roof-mounted solar energy system or Type 2 solar energy system.
(1)
At its sole discretion, the Avon Town Board may refer an application
for a commercial building-mounted solar energy system, commercial
roof-mounted solar energy system or Type 2 solar energy system to
one or more private consultants to assist such Board in negotiating,
drafting and/or reviewing the required community benefit agreement.
Such consultants may include a professional engineer, attorney, planning
consultant or other specialist. All expenses incurred by the Town
for this purpose shall be reimbursed to the Town by the applicant
within 30 days of the Town issuing a detailed invoice to applicant
requesting reimbursement for the same. At its discretion and at any
time during the application process, the Town Board may require that
applicant furnish a deposit in an amount that it deems initially sufficient
to be used for reimbursement of such expenses. Upon request of applicant,
the Town shall provide a general estimate of anticipated consulting
services to be provided and estimated costs for the same. However,
any such estimate of services or costs related to such services shall
not in any way restrict the level of reimbursement ultimately required
to be made by applicant. It is the specific intention of this section
that all expenses relating to professional consulting services rendered
to the Town or any of its Boards, relating to an application for development
of a solar energy system, be borne by the applicant and not the taxpayers
of the Town. Any such deposit shall be held in a non-interest-bearing
account and shall be used to reimburse the Town for expenses that
have been incurred as a result of such consultants. Prior to the Town
making any payment or withdrawal from such account, the Town shall
provide applicant with notice of such intended payment and documentation
supporting such payment. Applicant shall have the right, within five
business days from receipt of such notice, to protest any account
withdrawal or payment to a consultant which it contends is not reasonably
necessary or is not reasonable in amount. The Town Board shall thereafter
have 30 days to provide its determination with regard to applicant's
objection, which shall be provided to applicant in writing. Should
such deposit be depleted prior to final approval of the required community
benefit agreement, the Town Board may require that additional monies
be deposited with the Town before further processing of the community
benefit agreement will continue. The Town Board may suspend indefinitely
the negotiation and drafting and review of the community benefit agreement
as a result of the failure of applicant to timely remit a required
deposit or to promptly reimburse the Town for expenses relating to
such consultants.
(2)
No building permit may be issued for any approved commercial building-mounted
solar energy system, commercial roof-mounted solar energy system or
Type 2 solar energy system until such time as a community benefit
agreement has been executed by all parties.
M.
Road use agreement. Prior to issuance of any building permit for
a commercial building-mounted solar energy system, commercial roof-mounted
solar energy system or Type 2 solar energy system and as a condition
to any special use permit being issued, the applicant and its general
contractor shall enter into a written road use agreement benefitting
the Town and in a format acceptable to the Town at its sole discretion.
Such road use agreement will require applicant and its general contractor
to indemnify and hold the Town harmless from any and all damage to
the roadways within the Town that may result from the development
of applicant's commercial building-mounted solar energy system,
commercial roof-mounted solar energy system or Type 2 solar energy
system. As a part of such road use agreement, applicant (or its general
contractor) shall provide an irrevocable financial security bond (or
other form of surety acceptable to the Town of Avon at its sole discretion),
benefitting the Town, that shall ensure the indemnification and hold
harmless provisions set forth in the applicable road use agreement.
(1)
In the event that any damage is done to any Town road as a result
of the development of an applicant's commercial building-mounted
solar energy system, commercial roof-mounted solar energy system or
Type 2 solar energy system, said applicant and/or its General Contractor
shall be responsible to perform repairs to such road that are acceptable
to the Town Highway Superintendent in his/her reasonable discretion.
(2)
Such repairs shall be completed within 60 days of when written notice
of a demand to repair was personally served or sent via certified
mail to applicant or its general contractor or such longer timeframe
as determined by the Town Board at its sole discretion upon a showing
of good cause by applicant. Should applicant or its General Contractor
fail to effectuate such repairs within 60 days, or within a different
timeline at the discretion of the Town Board, the Town shall be permitted
to execute on the irrevocable financial security bond (or other form
of surety) with written notice to applicant or its General Contractor.
(3)
The provisions of the road use agreement required hereby and the
requisite financial security bond (or other form of surety) shall
remain in full force and effect for no less than one year after all
construction has been completed and the project has been certified
as complete by a professional engineer.
(4)
No building permit may be issued for any approved commercial building-mounted
solar energy system, commercial roof-mounted solar energy system or
Type 2 solar energy system until such time as a road use agreement
as required hereby has been executed by all parties.
N.
Traffic routes. Construction and delivery vehicles for commercial
building-mounted solar energy system, commercial roof-mounted solar
energy system and Type 2 solar energy systems shall use traffic routes
established as part of the applications review process. Factors in
establishing such corridors shall include:
(1)
Minimizing traffic impacts from construction and delivery vehicles.
(2)
Minimizing solar energy system related traffic during times of school
bus activity.
(3)
Minimizing wear and tear on local roads.
(4)
Minimizing impacts on local businesses.
(5)
Special use permit approval may contain conditions that limit solar
energy system related traffic to specified routes and include a plan
for disseminating traffic route information to the public.
O.
No commercial building-mounted solar energy system, commercial roof-mounted solar energy system, Type 1 solar energy system requiring site plan approval or Type 2 solar energy system shall be made operational until such time that all conditions of approval relating to the site plan and special use permit have been satisfied, the system fully complies with the solar regulations in Article XV of the Town of Avon Zoning Ordinance and a certificate of compliance or certificate of occupancy has been issued by the Code Enforcement Officer. Should any such solar energy system be made operational prior to the above conditions being fully met and satisfied, it will be deemed a violation and may result in revocation of the site plan approval and/or special use permit approval, along with any other remedy available pursuant to the Town of Avon Zoning Ordinance or New York state law.
[Added 10-27-2022 by L.L.
No. 5-2022]
A.
If the use of an approved solar energy system is discontinued, the
owner or operator shall provide written notice to the Code Enforcement
Officer within 30 days of such discontinuance. In any case, solar
energy systems are considered inoperative and abandoned after 180
days without electrical energy generation which is consumed on site
(or credit for on site consumption is received) for Type 1 solar energy
systems or 180 days without production of energy and off-site sale
to and consumption by one or more customers for commercial building-mounted
solar energy systems, commercial roof-mounted solar energy systems
or Type 2 solar energy systems. Each of the above time frames may
be extended by the Town Board, at its sole discretion, upon a showing
of good cause by the then owner or operator of the solar energy system.
B.
Determination of abandonment or inoperability. A determination of
the abandonment or inoperability of a solar energy system shall be
made by the Town Code Enforcement Officer, who shall provide the permit
holder, owner or operator and owner of the real property upon which
the solar energy system is located with written notice by personal
service or certified mail. At the earlier of the 91 days from the
date of determination of abandonment or inoperability without reactivation
or upon completion of dismantling and removal, any approvals and/or
permits granted or issued for the solar energy system shall automatically
expire.
C.
Removal. All solar energy systems (and related infrastructure) shall be dismantled and removed immediately from a lot where the special use permit or site plan approval has been revoked by the Town of Avon Zoning Board of Appeals or the Town Planning Board respectively, or if the solar energy system has been deemed by the Code Enforcement Officer to be inoperative or abandoned for a period of more than 180 days (unless the time frame is extended by the Town Board pursuant to the provisions of Subsection A above) and the lot shall be restored to its predevelopment condition. The responsibility to dismantle and remove and all such costs of removal shall be the sole responsibility of the permit holder, owner or operator and/or owner of the real property upon which the solar energy system is located. If the permit holder, owner or operator and/or owner of the real property upon which the solar energy system is located does not dismantle and remove said solar energy system as required by the decommissioning agreement, the Town Board may complete removal and decommissioning as set forth in the decommissioning agreement and levy all related expenses (not covered by any removal bond or other form of surety provided pursuant to such decommissioning agreement) associated with the removal onto the real property tax bill associated with the property upon which the solar energy system was located, regardless of who the permit holder, owner or operator and owner of the real property upon which the solar energy system is/was. Any costs or expenses related to removal (by the Town or completed on behalf of the Town's authority pursuant to this section) that are to be levied onto the real property tax bill for the property on which the solar energy system was located, shall not be offset, reduced or diminished for any recycling or salvage credits or value relating to the removed solar panels or solar energy equipment, except and unless the Town has actually received such credits or value prior to the re-levy of such costs and then, such reduction shall be limited to the actual dollar value received by the Town. Nothing in this article shall be interpreted to require or obligate the Town to undertake to obtain salvage or recycling credits, value or proceeds with regard to any solar panels or solar energy equipment to be removed pursuant to this section.
(1)
Removal of all commercial building-mounted solar energy systems, commercial roof-mounted solar energy systems and Type 2 solar energy systems shall be in accordance with the decommissioning agreement required by § 130-80E(1)(i)[1] above.
If the applicant or its successor in title/ownership of any
commercial building-mounted solar energy system, commercial roof-mounted
solar energy system or Type 2 solar energy system violates any of
the conditions of its special use permit, site plan approval or violates
any other local, state or federal laws, rules or regulations, such
violation shall be grounds for revocation of the special use permit
or site plan Approval. Revocation may occur after the applicant is
notified, in writing, of the violations and the Town of Avon Zoning
Board of Appeals and Planning Board holds a joint hearing on the alleged
violations, at which the applicant or its successor in title/ownership
shall have an opportunity to be heard and present evidence in defense
of the allegations of such violations.
In its 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. This article
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.
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.
