[Added 3-10-2022 by L.L. No. 2-2022]
A.
The Town Board of the Town of Avon adopts this article pursuant to:
(2)
New York Statute of Local Governments, § 10 Subdivision
1 and 7.
(3)
New York Municipal Home Rule Law, § 10 Subdivision 1(i)
and (ii) and § 10 Subdivision 1(a)(6), (11), (12), and (14).
(4)
New York Town Law § 130 Subdivisions 1 (Building Code),
3 (Electrical Code), 5 (Fire Prevention), 7 (Use of streets and highways),
7-a (Location of Driveways), 15 (Promotion of public welfare), 15-a
(Excavated Lands), 16 (Unsafe buildings), 19 (Trespass), and 25 (Building
lines);
(5)
New York Town Law § 64 Subdivision 17-a (protection of
aesthetic interests), Subdivision 23 (General powers).
B.
The Town of Avon Planning Board shall have the authority to approve
site plans for battery energy storage systems (hereafter defined)
as set forth in New York Town Law § 274-a and the Town of
Avon Zoning Board of Appeals shall have the authority to approve special
use permits pursuant to New York Town Law § 274-b.
The Town Board of the Town of Avon finds it is necessary to
properly site and regulate battery energy storage 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, safe
and efficient use of battery energy storage systems, and to protect
the health, safety and general welfare of the citizens of the Town
of Avon by creating regulations for the installation and use of battery
energy storage systems, with the following objectives:
A.
To provide a regulatory scheme for the designation of properties
suitable for the location, construction, and operation of battery
energy storage systems.
B.
To ensure compatible land uses in the vicinity of the areas affected
by battery energy storage systems.
C.
To mitigate the impacts of battery energy storage systems on environmental
resources such as important agricultural lands, forests, wildlife,
and other protected resources; and
D.
To create synergy between battery energy storage system development and the Town's Solar Energy Systems regulations as found in Article XV of the Code of the Town of Avon.
E.
To protect the health, welfare, safety and quality of life or the
general public.
As used in this article, the following terms shall have the
meanings indicated:
American National Standards Institute.
An electronic system that protects battery energy storage
systems from operating outside their safe operating parameters and
disconnects electrical power to the battery energy storage system
or places it in a safe condition if potentially hazardous temperatures
or other conditions are detected. The system generates an alarm and
trouble alert signal for abnormal conditions.
A rechargeable energy storage system consisting of one or
more devices, including batteries, battery chargers, controls, power
conditioning systems and associated electrical equipment, assembled
together, capable of storing energy in order to provide electrical
energy at a future time, not to include a stand-alone twelve-volt
car battery or an electric motor vehicle. A battery energy storage
system is classified as a Tier 1 or Tier 2 battery energy storage
system as follows:
Tier 1 battery energy storage systems have an aggregate energy
capacity less than or equal to 600 kWh and, if in a room or enclosed
area, consist of only a single energy storage system technology.
Tier 2 battery energy storage systems have an aggregate energy
capacity greater than 600 kWh or are comprised of more than one storage
battery technology in a room or enclosed area.
A single cell or a group of cells connected together electrically
in series, in parallel, or a combination of both, which can charge,
discharge, and store energy electrochemically. For the purposes of
this article, batteries utilized in consumer products are excluded
from these requirements.
The basic electrochemical unit, characterized by an anode
and a cathode, used to receive, store, and deliver electrical energy.
A systematic process that provides documented confirmation
that a battery energy storage system functions according to the intended
design criteria and complies with applicable code requirements.
The removal and disposal of all battery energy storage system
equipment, accessories or structures, including, but not limited to,
batteries, battery energy storage management system, cells, dedicated-use
buildings, non-dedicated use buildings, subsurface foundations and
all other material, concrete, wiring, cabling, or debris, that were
installed in connection with a battery energy storage system and the
restoration of the parcel of land to the original state prior to construction
on which the battery energy storage system is built, including, but
not limited to, restoration, regrading, and reseeding. 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 battery energy storage
system if the use of such system is discontinued, abandoned, or becomes
inoperable.
A building that is built for the primary intention of housing
battery energy storage system equipment and is classified as Group
F-1 occupancy as defined in the International Building Code, and it
complies with the following:
The building's only use is battery energy storage, energy
generation, and other electrical grid-related operations.
No other occupancy types are permitted in the building.
Occupants in the rooms and areas containing battery energy storage
systems are limited to personnel that operate, maintain, service,
test, and repair the battery energy storage system and other energy
systems.
Administrative and support personnel are permitted in areas
within the buildings that do not contain battery energy storage system,
provided the following:
The areas do not occupy more than 10% of the building area of
the story in which they are located.
A means of egress is provided from the administrative and support
use areas to the public way that does not require occupants to traverse
through areas containing battery energy storage systems or other energy
system equipment.
The New York State Energy Conservation Construction Code
adopted pursuant to Article 11 of the Energy Law, as currently in
effect and as hereafter amended from time to time.
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 fire code section of the New York State Uniform Fire
Prevention and Building Code adopted pursuant to Article 18 of the
Executive Law, as currently in effect and as hereafter amended from
time to time.
The record title owner to the real property upon which a
battery energy storage system is constructed, at the time such battery
energy storage system is originally constructed.
Abbreviation for kilowatt-hour, which is a measure of the
energy capacity of a battery and a battery energy storage system.
A U.S. Department of Labor designation recognizing a private
sector organization to perform certification for certain products
to ensure that they meet the requirements of both the construction
and general industry OSHA electrical standards.
National Electric Code.
National Fire Protection Association.
All buildings that contain a battery energy storage system
and do not comply with the dedicated-use building requirements.
Any property that is not a participating property.
Any residence located on nonparticipating Property.
Any building in Occupancy Group A, B, E, I, R, as defined
in the International Building Code, including, but not limited to,
schools, colleges, day-care facilities, hospitals, correctional facilities,
public libraries, theaters, stadiums, apartments, hotels, and houses
of worship.
A battery energy storage system host property or any real
property that is the subject of an agreement that provides for the
payment of monetary compensation to the landowner from the battery
energy storage system owner (or affiliate) regardless of whether any
part of a battery energy storage system is constructed on the property.
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.
Underwriters Laboratory, an accredited standards developer
in the US.
The New York State Uniform Fire Prevention and Building Code
adopted pursuant to Article 18 of the Executive Law, as currently
in effect and as hereafter amended from time to time.
A.
The requirements of this article shall apply to all battery energy
storage systems permitted, installed, or modified in the Town after
the effective date of this article, excluding general maintenance
and repair.
B.
Battery energy storage systems constructed or installed prior to
the effective date of this article shall not be required to meet the
requirements of this article.
C.
Modifications to, retrofits or replacements of an existing battery
energy storage system that increase the total battery energy storage
system designed discharge duration or power rating shall be subject
to and completed pursuant to the requirements of this Article.
A.
A building permit and an electrical permit shall be required for
installation of all battery energy storage systems.
B.
Issuance of permits and approvals by the Planning Board and/or Zoning
Board of Appeals shall include review pursuant to the State Environmental
Quality Review Act [ECL Article 8 and its implementing regulations
at 6 NYCRR Part 617 ("SEQRA")]. All Tier 2 battery energy storage
systems shall be deemed as Type I Actions for purposes of compliance
with the New York State Environmental Quality Review Act.
C.
All battery energy storage systems, all dedicated-use buildings,
and all other Buildings or Structures that (1) contain or are otherwise
associated with a battery energy storage system and (2) subject to
the Uniform Code and/or the Energy Code shall be designed, erected,
and installed in accordance with all applicable provisions of the
Uniform Code, all applicable provisions of the Energy Code, and all
applicable provisions of the codes, regulations, and industry standards
as referenced in the Uniform Code, the Energy Code, and the local
laws and ordinances of the Town.
A.
Tier 1 battery energy storage systems shall be permitted in all zoning
districts, subject to the Uniform Code and the "battery energy storage
system permit."
B.
Tier 1 battery energy storage systems serving and providing energy
storage for the exclusive use of a one-family dwelling, or a two-family
dwelling are exempt from site plan review.
C.
Tier 1 battery energy storage systems serving and providing energy storage for a multifamily dwelling, business (including a farm operation to the extent permitted by law) or industrial use shall be subject to site plan review pursuant to § 130-45E.
D.
Ground-mounted Tier 1 battery energy storage systems are permitted
as accessory use and are subject to the following requirements:
(1)
The height of the ground-mounted Tier 1 battery energy storage system
and any mounts shall not exceed 12 feet.
(2)
The total surface area of the ground-mounted Tier 1 battery energy
storage system on the lot shall not exceed 5% lot coverage.
(3)
The ground-mounted Tier 1 battery energy storage system shall not
be the primary use of the property.
(4)
The ground-mounted Tier 1 battery energy storage system shall be
located in a side or rear yard.
(5)
The ground-mounted Tier 1 battery energy storage system shall comply
with the minimum setbacks for accessory buildings applicable to the
zoning district in which the battery energy storage system is sited
as set forth in Schedule A, Area, Lot, and Bulk Regulations.
(6)
The ground-mounted Tier 1 battery energy storage system shall be
screened from adjacent dwellings through the use of architectural
features, earth berms, landscaping, or other screening which will
harmonize with the character of the property and surrounding area.
A.
Tier 2 battery energy storage systems are permitted in Agricultural Districts (A), General Business Districts (B-1), Light Industrial Districts (L-1) and Combined General Business - Light Industrial Districts (B1 - LI), subject to the Uniform Code and the requirements set forth in this Article, including site plan approval pursuant to § 130-45E., and are allowed only after issuance of a Special Use Permit pursuant to § 130-35 and this Article.
(1)
Tier 2 battery energy storage systems shall not be permitted on land
within an Agricultural District that is classified as prime farmland
or farmland of statewide importance.
B.
Special use permit application requirements. The applicant shall submit to the Zoning Board of Appeals 10 copies of the site plan application submitted to the Planning Board, and information required by § 130-35 and the following documents and information:
(1)
Name, address, phone number, and signature of the project applicant.
(2)
If the property of the proposed battery energy storage 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 § 130-92B(16)(a) 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 battery
energy storage system (or any component thereof, including access
ways or utility lines) shall be constructed.
(3)
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 battery energy
storage system), 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 battery energy storage
system is to be located and are specifically intended to demonstrate
the pre-development condition and properties of the soils to ensure
that full and proper remediation of the site occurs upon decommissioning.
(4)
Plans and drawings for the Tier 2 battery energy storage system signed
by a professional engineer showing the proposed layout of the battery
energy storage system along with providing a description of all components,
buildings or structures, 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.
(5)
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 Tier 2 battery energy storage system.
(6)
Proposed exterior lighting and screening vegetation or structures.
(7)
A three-line electrical diagram detailing the battery energy storage
system layout, associated components, and electrical interconnection
methods, with all National Electrical Code compliant disconnects and
over current devices.
(8)
An equipment specification sheet that documents the proposed battery
energy storage system components, inverters and associated electrical
equipment that are to be installed. Any changes to the equipment specification
sheet due to unavailability of proposed equipment shall be submitted
prior to the issuance of building permit.
(9)
Name, address, and contact information of proposed or potential system
installer and the owner and/or operator of the battery energy storage
system. Such information of the final system installer shall be submitted
prior to the issuance of building permit.
(10)
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 Tier 2 battery
energy storage system on the site.
(11)
Noise study. Applicant shall provide a noise study of the impacts
of construction and operation of the proposed battery energy storage
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
battery energy storage system and all appurtenant substation equipment
relative to all surrounding dwellings.
(12)
Screening and landscape plan. A screening and landscaping plan
prepared by a landscape architect showing proposed screening and buffering
of all structures on the site. The plan shall include the proposed
changes to the landscape of the site, grading, vegetation clearing
and planting, exterior lighting, and screening vegetation or structures,
and the plan for ongoing vegetation management. The screening and
landscaping plan shall include locations, elevations, site lines,
height, plant species, and/or materials that will comprise the structures,
landscaping and/or grading used to screen and/or mitigate any adverse
aesthetic effects of the system. The plan shall identify the use of
native, non-invasive, perennial plant and seed species. Invasive species
that shall not be planted as part of the landscape buffer, include,
but are not limited to, winter creeper, garden loosestrife, Chinese
silver grass, yellow flag iris, bamboo, Norway maple, Japanese barberry,
sweet autumn clematis, burning bush and siebold's viburnam, or
other invasive species as identified by the NYSDEC or the NY Invasive
Species Clearinghouse at Cornell University.
(13)
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 battery energy storage system, and similar visual renderings
of the projected maturation of the buffering/screening at five years
and 10 years after completion of the battery energy storage 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.
(14)
Parking. Applicant shall a designated parking area on the site
of the battery energy storage system for employees of applicant (or
the successor owner of the battery energy storage system) to park
when providing monitoring or maintenance of the battery energy storage
system.
(15)
SEQR. A Full Environmental Assessment Form shall be provided
by applicant.
(16)
Fire safety compliance plan. Such plan shall document and verify
that the system and its associated controls and safety systems are
in compliance with the Uniform Code.
(17)
Commissioning plan. Such plan shall document and verify that
the system and its associated controls and safety systems are in proper
working condition per requirements set forth in the Uniform Code.
(18)
Operation and maintenance plan. Such Plan shall describe all ongoing or periodic maintenance of the Tier 2 battery energy storage system and property upkeep. Such Plan shall provide for biennial preventative maintenance site inspections that will include a representative from the owner or operator of the battery energy storage 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 battery energy storage system, as well as quarterly reports of inspection of the security systems relating to such battery energy storage systems. Said Plan shall demonstrate how the applicant (or the successor owner of the battery energy storage system) shall ensure proper removal and disposal of all batteries and/or cells or other 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 such batteries, cells or other equipment. Said Plan shall also obligate the applicant (or the successor owner of the battery energy storage system) to provide the Town, not less than every year (commencing the second year after the battery energy storage 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 battery energy storage system is constructed have not been contaminated in any fashion as a result of the battery energy storage system placed on the property. Such test results shall be compared to the pre-construction soil sample analysis referenced in Subsection B(3) (Pre-development site conditions) above.
(19)
Decommissioning plan. To ensure the proper removal of Tier 2
battery energy storage 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 Tier 2 battery energy storage 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 Tier 2 battery
energy storage 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.
(a)
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 battery energy storage system if the use of such
system is discontinued, abandoned or becomes inoperable pursuant to
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
is acceptable to the Town of Avon at its discretion) for the removal
of the Tier 2 battery energy storage 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 Tier 2 battery energy storage
system has been constructed, and no later than 60 days' prior
to the anniversary date of the issuance of the building permit for
such battery energy storage 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 battery energy storage 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 battery energy storage 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.
(20)
Emergency operations plan. To ensure proper safety protocol
after a Tier 2 battery energy storage system is constructed, an emergency
operations plan shall be developed and approved in consultation with
local fire code officials, County Emergency Management Services and
local fire and emergency response providers. Such Plan shall include
response logistics, including site-specific conditions, in order to
provide year-round emergency response access. The Plan shall also
include provisions for initial training and annual site-specific training
drills, at the system owner/operator's expense, for the Town
Code Enforcement Officer, local fire departments, local and County
Emergency Responders, Livingston County Emergency Management Services,
and local law enforcement. A copy of the approved emergency operations
plan shall be given to the system owner, the local fire department,
and local fire code official. A permanent copy shall also be placed
in an approved location to be accessible to facility personnel, fire
code officials, and emergency responders. Any modifications or updates
to such Plan shall be likewise provided. The emergency operations
plan shall include the following information:
(a)
Procedures for safe shutdown, de-energizing, or isolation of
equipment and systems under emergency conditions to reduce the risk
of fire, electric shock, and personal injuries, and for safe start-up
following cessation of emergency conditions.
(b)
Procedures for inspection and testing of associated alarms,
interlocks, and controls.
(c)
Procedures to be followed in response to notifications from
the battery energy storage management system, when provided, that
could signify potentially dangerous conditions, including shutting
down equipment, summoning service, and repair personnel, and providing
agreed upon notification to fire department personnel for potentially
hazardous conditions in the event of a system failure.
(d)
Emergency procedures to be followed in case of fire, explosion,
release of liquids or vapors, damage to critical moving parts, or
other potentially dangerous conditions. Procedures can include sounding
the alarm, notifying the fire department, evacuating personnel, de-energizing
equipment, and controlling and extinguishing the fire.
(e)
Response considerations similar to a safety data sheet (SDS)
that will address response safety concerns and extinguishment when
an SDS is not required.
(f)
Procedures for dealing with battery energy storage system equipment
damaged in a fire or other emergency event, including maintaining
contact information for personnel qualified to safely remove damaged
battery energy storage system equipment from the facility.
(g)
Other procedures as determined necessary by the Town to provide
for the safety of occupants, neighboring properties, and emergency
responders.
(h)
Procedures and schedules for conducting drills of these procedures
and for training local first responders on the contents of the plan
and appropriate response procedures.
(21)
At the time of application, applicant shall be required to furnish
a deposit in an amount that the Town deems initially sufficient to
be used for reimbursement of expenses and costs associated with one
or more private professional consultants utilized to assist the Planning
Board and Zoning Board of Appeals in the review of an application
for a Tier 2 battery energy storage system. Such consultants may include
a professional engineer, attorney, planning consultant or other specialist.
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 battery
energy storage 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, the Town 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.
(22)
If a Tier 2 battery energy storage 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.
C.
Review procedure.
(1)
The Town Code Enforcement Officer and the Town's engineering/planning
consultant will review the application for completeness. An application
shall be complete when it addresses all matters listed in this Article,
including, but not necessarily limited to: (i) compliance with all
applicable provisions of the Uniform Code and all applicable provisions
of the Energy Code and (ii) matters relating to the proposed battery
energy storage system and floodplain, utility lines and electrical
circuitry, signage, lighting, vegetation and tree-cutting, noise,
decommissioning, site plan and development, special use and development
(if applicable), ownership changes, safety, and permit time frame
and abandonment.
(2)
Applicants shall be advised within 45 business days of the completeness
of their application or any deficiencies that must be addressed prior
to substantive review.
(3)
The application shall be subject to a public hearing to hear all
comments for and against the application. The Planning Board and/or
Zoning Board of Appeals shall cause a notice of such public hearing
to be printed in a newspaper of general circulation in the Town at
least five days in advance of such public hearing. Applicants shall
deliver the public hearing notice by first-class mail to adjoining
landowners or landowners within 500 feet of the property at least
10 days' prior to such public hearing. Proof of mailing shall
be provided to the Planning Board and Zoning Board of Appeals prior
to the public hearing.
(4)
The application shall be referred to the Livingston County Planning
Department pursuant to General Municipal Law § 239-m.
(5)
Upon closing of the public hearing, the Planning Board and Zoning
Board of Appeals shall take action on the application within 62 days
of the public hearing, which can include approval, approval with conditions,
or denial. The sixty-two-day period may be extended upon consent of
the Planning Board, Zoning Board of Appeals and applicant.
(6)
Prior to determination or issuance of any permit, all Tier 2 battery
energy storage 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 Tier 2 battery energy storage system shall be deemed to be Type
I Actions for purposes of compliance with the New York State Environmental
Quality Review Act. The Planning Board and the Zoning Board of Appeals
shall conduct a coordinated review of all Tier 2 battery energy storage
systems. 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.
D.
Site plan and special use permit approval standards. Approval of
the site plan and special use permit application requires that the
Planning Board find that the proposed battery energy storage system
protects adjacent land uses, assures that the proposed use is in harmony
with local laws of the Town, will not adversely affect the neighborhood,
and conforms to the following minimum requirements:
(1)
Utility lines and electrical circuitry. All on-site utility lines
shall be placed underground to the extent feasible and as permitted
by the serving utility, with the exception of the main service connection
at the utility company right-of-way and any new interconnection equipment,
including without limitation any poles, with new easements and right-of-way.
(2)
Signage. The signage shall be in compliance with ANSI Z535 and shall
include the type of technology associated with the battery energy
storage systems, any special hazards associated, the type of suppression
system installed in the area of battery energy storage systems, and
twenty-four-hour emergency contact information, including reach-back
phone number.
(3)
As required by the NEC, disconnect and other emergency shutoff information
shall be clearly displayed on a light reflective surface. A clearly
visible warning sign concerning voltage shall be placed at the base
of all pad-mounted transformers and substations.
(4)
Lighting. Lighting of the battery energy storage systems shall be
limited to that minimally required for safety and operational purposes
and shall be reasonably shielded and downcast from abutting properties.
(5)
Vegetation and tree cutting. Areas within 20 feet on each side of
Tier 2 battery energy storage systems shall be cleared of combustible
vegetation and other combustible growth. Single specimens of trees,
shrubbery, or cultivated ground cover such as green grass, ivy, succulents,
or similar plants used as ground covers shall be permitted and be
exempt, provided that they do not form a means of readily transmitting
fire. Removal of trees should be minimized to the extent possible.
(6)
Setbacks. All setbacks set forth below shall be measured form the
fencing surrounding the battery energy storage system. Landscape buffers
for screening may be placed within the setback area. Tier 2 battery
energy storage systems and related structures shall have the following
setbacks:
(a)
Two hundred feet in the front from the right-of-way line of
any public or private road, street, or highway.
(b)
One hundred feet from the sides and the rear property boundary
line.
(c)
Four hundred feet from the property line of any property that
contains one or more dwellings or accessory buildings containing a
dwelling unit. The above stated side and rear property setback restrictions
and those setbacks relating to a dwelling or accessory building containing
a dwelling unit, may be modified (reduced) by the Planning Board and
Zoning Board of Appeals for any contiguous parcel (to that parcel
upon which the battery energy storage system is being developed) owned
by a participating landowner that owns the parcel upon which the subject
battery energy storage system is being placed. 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 battery energy storage
system is placed.
(7)
Height. Tier 2 battery energy storage systems shall not exceed 12
feet in height as measured from the highest point of any equipment
to the ground directly beneath it.
(8)
Fencing requirements. Tier 2 battery energy storage systems, including
all mechanical equipment, shall be enclosed by a seven-foot-high fence
with a self-locking gate to prevent unauthorized access unless housed
in a dedicated-use building and not interfering with ventilation or
exhaust ports.
(9)
Screening and visibility. Tier 2 battery energy storage systems shall
have views minimized from adjacent properties to the extent reasonably
practicable using architectural features, earth berms, landscaping,
or other screening methods that will harmonize with the character
of the property and surrounding area and will not interfere with ventilation
or exhaust ports.
(10)
Security. Buildings must be protected from vehicle impact, including,
but not limited to, protection provided by bollards.
(11)
Noise. The one-hour average noise generated from the battery
energy storage systems, components, and associated ancillary equipment
shall not exceed a noise level of 50 dBA during the day and 45 dBA
during the night, as measured at the outside wall of any nonparticipating
residence or occupied community building, existing or under construction
at the time of the permit application. Applicants may submit equipment
and component manufacturers noise ratings to demonstrate compliance.
The applicant may be required to provide operating sound pressure
level measurements from a reasonable number of sampled locations at
the perimeter of the battery energy storage system to demonstrate
compliance with this standard.
E.
Decommissioning.
(1)
Decommissioning plan. To ensure the proper removal of Tier 2 battery
energy storage 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 Tier 2 battery 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 Tier 2 battery energy storage 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. The Plan shall set
forth the proposed method of ensuring that funds will be available
for decommissioning and restoration and the method by which the decommissioning
cost will be kept current.
(2)
If the use of an approved Tier 2 battery energy storage system is
discontinued, the owner or operator shall provide written notice to
the Code Enforcement Officer within 30 days of such discontinuance.
Should a Tier 2 battery energy storage system become inoperative and/or
abandoned such that it ceases to operate consistently for more than
180 days, such system will be deemed inoperative or abandoned. 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
battery energy storage system.
(3)
Determination of abandonment or inoperability. A determination of
the abandonment or inoperability of a Tier 2 battery energy storage
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 Tier 2 battery energy storage 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
battery energy storage system shall automatically expire.
(4)
Removal. All Tier 2 battery energy storage 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 battery energy storage 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 E(1) above) and the lot shall be restored to its pre-development 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 Tier 2 battery energy storage system is located. If the permit holder, owner or operator and/or owner of the real property upon which the Tier 2 battery energy storage system is located does not dismantle and remove said Tier 2 battery energy storage 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 Tier 2 battery energy storage system was located, regardless of who the permit holder, owner or operator and owner of the real property upon which the Tier 2 battery energy storage 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 Tier 2 battery energy storage system was located, shall not be offset, reduced or diminished for any recycling or salvage credits or value relating to the removed equipment, except and unless the Town has actually received such credits or value prior to the relevy 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 equipment to be removed pursuant to this section.
(5)
As set forth in § 130-92B(19)(a) above, 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 battery energy storage system if the use of such system is discontinued, abandoned or becomes inoperable pursuant to 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 Tier 2 battery energy storage 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 Tier 2 battery energy storage system has been constructed, and no later than 60 days' prior to the anniversary date of the issuance of the building permit for such battery energy storage 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 battery energy storage 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 battery energy storage 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.
F.
Ownership changes. If the owner of the battery energy storage system
changes or the owner of the property changes, the special use permit
shall remain in effect, provided that the successor owner or operator
assumes, in writing, all of the obligations of the special use permit,
site plan approval, and decommissioning plan. A new owner or operator
of the battery energy storage system shall notify the Code Enforcement
Officer of such change in ownership or operator within 30 days of
the ownership change. A new owner or operator must provide such notification
to the Code Enforcement Officer, in writing. The special use permit
and all other local approvals for the battery energy storage system
would be void if a new owner or operator fails to provide written
notification to the Code Enforcement Officer in the required timeframe.
Reinstatement of a void special use permit will be subject to the
same review and approval processes for new applications under this
article.
G.
Safety.
(1)
System certification. Prior to commencement of operation, battery
energy storage systems and equipment shall be certified and/or listed
by a Nationally Recognized Testing Laboratory to UL 9540 (Standard
for Battery Energy Storage Systems and Equipment) with subcomponents
meeting each of the following standards as applicable at the time
of development, along with any other standards adopted after the date
of enactment of this Article:
(a)
UL 1973 (Standard for batteries for Use in Stationary, Vehicle
Auxiliary Power, and Light Electric Rail Applications);
(b)
UL 1642 (Standard for Lithium batteries);
(c)
UL 1741 or UL 62109 (inverters and power converters); and
(d)
Certified under the applicable electrical, building and fire
preventions codes as required.
(e)
Alternatively, field evaluation by an approved testing laboratory
for compliance with UL 9540 and applicable codes, regulations and
safety standards may be used to meet system certification requirements.
(2)
Site access. Tier 2 battery energy storage systems shall be maintained
in good working order and in accordance with industry standards. Site
access shall be maintained, including snow removal at a level acceptable
to the local fire department and, if the Tier 2 battery energy storage
system is located in an ambulance district, the local ambulance corps.
(3)
Tier 2 battery energy storage systems, components, and associated
ancillary equipment shall have required working space clearances,
and electrical circuitry shall be within weatherproof enclosures marked
with the environmental rating suitable for the type of exposure in
compliance with NFPA 70.
H.
Permit time frame and abandonment.
(1)
The Special Use Permit and site plan approval for a Tier 2 battery
energy storage system shall be valid for a period of 24 months after
site plan and Special Use Permit approvals are granted. In the event
construction is not completed in accordance with the final site plan
(or as may have been amended) within 24 months after approval, the
time to complete construction may be extended by each of the approving
Boards, at their sole discretion, upon a showing of good cause by
the applicant. Any such extension granted by the approving Boards
shall not exceed 180 days. If the owner and/or operator fails to perform
substantial completion of the construction after 30 months, the site
plan and Special Use Permit approvals shall expire.
Any violation of this Article shall be subject to the same enforcement
requirements, including the civil and criminal penalties, provided
for in the land use regulations of the Town.
