Batavia Town City Zoning Code
ARTICLE V
Supplementary Regulations
§ 235-34 Off-street parking space requirements.
For every building hereafter erected, altered or changed in use, there shall be provided at least the minimum number of off-street parking spaces set forth under this section. All off-street parking for nonresidential and multifamily use shall be designed in such a manner as to allow vehicles to exit onto a street without backing out onto it.
Residential uses.
Home occupations: the number of parking spaces required for the existing residential use (see above), plus whatever additional parking spaces are deemed necessary by the Planning Board.
Hotel/motel: three parking spaces, plus one space for every guest room.
Places of public assembly: one parking space for every three seats.
Offices and banks: four parking spaces for every 1,000 square feet of gross floor area.
General retail: five parking spaces for every 1,000 square feet of gross floor area.
Restaurant, eating and drinking establishment (other than drive-in, see Subsection H below): one parking space for every three seats.
Industrial, wholesale, warehouse, storage, freight, and trucking uses: one parking space for every motor vehicle used directly in the business, plus additional employee and visitor parking as required by the Planning Board.
Drive-in, service and unspecified uses: as required by the Planning Board, based upon use intensity, turnover, customers, employees and vehicles used.
§ 235-35 Off-street loading space requirements.
Every building occupied for the purpose of business or industry shall provide adequate space for off-street loading and unloading vehicles as determined by the Planning Board.
§ 235-36 Modification of parking and loading requirements.
The Planning Board, under its powers of site plan review and approval, may modify the requirements for parking and loading spaces herein upon good cause being shown.
§ 235-37 Motor vehicle, farm and heavy equipment related uses.
Gasoline stations, gasoline station-markets, motor vehicle repair shops, motor vehicle sales and service, truck stop, trucking terminal, heavy machinery and truck sales and service, farm equipment sales and service, recreational vehicles sales and service and drive-in business shall require a special use permit and shall comply with the following:
Such uses shall be effectively buffered from existing residential uses in a manner that is acceptable to the Planning Board.
[Amended 2-20-2008 by L.L. No. 2-2008]
Lot size shall be at least 40,000 square feet.
Lot frontage shall be at least 200 feet.
Lot depth shall be at least 150 feet.
Pumps, other service devices, and aboveground fuel and oil storage shall be located at least 30 feet from all lot lines.
Any underground storage of fuel and oil of sufficient volume not regulated by the New York State Department of Environmental Conservation shall be located at least 30 feet from all lot lines.
Motor vehicle and equipment parts and dismantled vehicles and equipment shall be stored within a building or structure, or within a fence of a height to be determined by the Planning Board, within its sole discretion, so as to prevent public view of such items from any direction. All work connected with the uses covered by this section shall be performed to the extent possible indoors.
There shall be no more than two access driveways from any street. Maximum width of each access driveway shall be 30 feet.
§ 235-38 Public utility facilities.
Public utility installations (other than commercial communication towers, see § 235-52) shall require a special use permit and shall comply with the following:
Such facility shall be surrounded by a fence approved by the Planning Board.
The facility shall be landscaped in a manner approved by the Planning Board.
To the extent practicable, equipment shall be stored so as not to be visible from surrounding properties.
Any other requirements as determined by the Planning Board.
§ 235-38.1 Wind energy systems.
[Added 2-20-2008 by L.L. No. 3-2008]
Purpose. The purpose of this section is to preserve and protect public health and safety without significantly increasing the cost or decreasing the efficiency of a wind energy system and to allow for the orderly development of land, and to protect property values and aesthetic conditions. This section does not repeal, annul, impair, or interfere with any existing ordinance or local law.
Authority. The Town Board of the Town of Batavia enacts this section under the authority granted by:
New York Municipal Home Rule Law, § 10, Subdivision 1(i) and (ii) and § 10, Subdivision 1a(6), (11), (12), and (14).
New York Town Law § 130, Subdivision 1 (Building Code), Subdivision 3 (Electrical Code), Subdivision 5 (Fire Prevention), Subdivision 7 (Use of streets and highways), Subdivision 7-a (Location of Driveways), Subdivision 11 (Peace, good order and safety), Subdivision 15 (Promotion of public welfare), Subdivision 15-a (Excavated lands), Subdivision 16 (Unsafe buildings), Subdivision 19 (Trespass), and Subdivision 25 (Building lines).
New York Town Law § 64, Subdivision 17-a (Protection of aesthetic interests), and Subdivision 23 (General powers).
The State Environmental Quality Review Act ("SEQRA").
Intent. The Town of Batavia intends to accommodate the use of alternative and sustainable energy sources, including wind, while protecting the quality of life of residential neighborhoods and the viability of existing businesses, including agriculture. These regulations are intended to permit noncommercial wind energy systems subject to suitable restrictions regarding setbacks and height. Commercial wind energy systems are not permitted at this time but may be permitted in the future with the Town's passage of additional zoning amendments to accommodate such systems.
Definitions. As used in this section, the following terms shall have the meanings indicated:
A wind energy system that is operated primarily (51% or more) to put energy into the electric grid, and/or has a nameplate capacity of more than 50 kilowatts (kW), and/or a total height of more than 175 feet, and/or a blade length of more than 30 feet.
The interference to communication systems created by the scattering of electromagnetic signals.
A wind energy system that is operated primarily (51% or more) for on-site (may be for more than one parcel) consumption, and has a nameplate capacity of 50 kW or less, and a total height of 175 feet or less, and a blade length of 30 feet or less. These are also defined as wind energy conversion systems (WECS) or small wind energy production facilities.
The largest diameter formed by the blades when assembled and mounted on the wind energy system.
The alternating pattern of sun and shade caused by wind tower blades casting a shadow.
The inappropriate application of current to the ground or earth. For the purpose of this section, it is the measurable addition of current to ground resulting from improper installation or deterioration of the electrical portion of a wind energy system. The National Electrical Safety Code set the conditions that grounding connection points shall be so arranged that under normal circumstances there will be no objectionable flow of current over the grounding conductor. The National Electrical Safety Code set the conditions that earth (ground) should not be part of a supply circuit for both safety and service reasons. The most current revision of the National Electrical Safety Code shall apply.
The vertical distance from ground level to the tip of a wind turbine blade when the tip is at its highest point.
Equipment that converts and then stores or transfers energy from the wind into usable forms of energy and includes any base, blade, foundation, generator, nacelle, rotor, tower, transformer, turbine, vane, wire, substation, maintenance or control facilities, or any other components used in the system. A wind energy system can consist of one or more wind towers. Wind energy systems do not include small lawn decoration, pond aerators, or remaining portions of mechanical water pumping windmills.
The monopole, freestanding, or guyed structure that supports a wind turbine generator.
Compliance. It is unlawful for any person to construct, install, maintain, modify, or operate a wind energy system that is not in compliance with this section or with any condition contained in a special use or zoning permit issued pursuant to this chapter.
Commercial wind energy systems shall not be allowed in any area or zone within the Town of Batavia.
Permit requirements.
Special use permit. A special use permit is required for noncommercial wind energy systems and for any wind energy system or a component thereof, except for noncommercial wind energy systems located in county-adopted, state-certified agricultural districts for primary on-farm use.
Zoning permit. A zoning permit and site plan review are required for the installation of any wind tower that is part of a wind energy system.
Ownership. In cases where the owner of the property is not the applicant/owner of the wind energy conversion system, a clear order of liability will be established. A signed and notarized legal document from the owner of record of the property on which a wind energy system will be located shall be required which acknowledges liability for compliance to all requirements of this section if the applicant/owner of the wind energy system is unable to comply.
Fees.
The application for a special use permit for a noncommercial wind energy system, except for noncommercial wind energy systems located in country adopted, state-certified agricultural districts, must be accompanied by the fee required for a special use permit.
The application for a zoning permit for each tower in a noncommercial wind energy system must be accompanied by the fee required for a zoning permit.
Restoration requirement (see also "Restoration" section under "Agricultural mitigation").[1]
A wind energy system that is out of service for a continuous twelve-month period or any wind energy system found to be unsafe by the Building Code Enforcement Officer and not repaired by the owner to meet federal, state and local safety standards within six months will be deemed to have been abandoned. The Zoning Enforcement Officer may issue a notice of abandonment in the form of a letter to the owner of a wind energy system that is deemed to have been abandoned. The Zoning Enforcement Officer will withdraw the notice of abandonment if the owner provides information within 30 days from the date of the notice that causes the Zoning Enforcement Officer to determine that the wind energy system has not been abandoned.
The owner of a wind energy system must provide the Zoning Enforcement Officer with a written notice of termination of operations if the operation of a wind energy system is terminated.
Within three months of receipt of a notice of abandonment or within six months of providing a notice of termination of operations, the owner of a wind energy system must:
Remove all wind turbines, aboveground improvements, and outdoor storage;
Remove all foundations, pads, and underground electrical wires to a depth of four feet below the surface of the ground;
Remove all hazardous material as defined by NYSDEC from the property and dispose of the hazardous material in accordance with federal and state law; and
Ensure that all disturbed areas are decompacted and the topsoil replaced to original depth reestablishing original contours where possible.
[1]
Editor's Note: See § 235-38.IV(3).
Special use permit or zoning permit requirements. In addition to those criteria set forth under other sections of this chapter, the Planning Board shall consider the following factors when setting conditions upon special use permits or site plans issued for all wind energy systems and may hire a professional engineer or consultant to assist in the review of an application at the applicant's expense:
Proposed ingress and egress.
Proximity to transmission lines to link the system to the electric power grid.
Number of wind towers and their location.
Nature of land use on adjacent and nearby properties.
Location of other wind energy systems in the surrounding area.
Surrounding topography.
Proximity to residential structures, residential zoning districts, or areas identified for future residential use.
Design characteristics that may reduce or eliminate visual obtrusiveness.
Possible adverse effects on migratory birds, and other animals and wildlife.
Possible adverse effects of stray voltage, interference with broadcast signals, shadow flicker, and noise.
Impact on the orderly development, property values, and aesthetic conditions.
Possible adverse effects on groundwater quality or quantity.
Recommendations of the County Planning Board.
Any other factors that are relevant to the proposed system.
Standards.
Location.
A wind energy system may only be located in areas that are zoned Agricultural-Residential (AG-R), Commercial (C), Industrial (I), Industrial Park (IP) or Planned Business Development (PBD).
Setbacks. Each wind tower in a wind energy system must be set back twice the height of each wind tower or 10 rotor diameters, whichever is longer (as measured from the center of the base of the tower), from the following:
From any state forest, public park, or any other area that has been set aside for the sole purpose of preserving a unique wildlife habitat or natural formation recognized by a state, federal or local government.
From important bird areas.
From the property line of the parcel on which the wind tower is located.
Of any public access building that is on any parcel.
From the right-of-way of any public road.
From any residence or building that is on any parcel.
Spacing and density. A wind tower must be separated from any other wind tower by a minimum distance equal to twice the height of the wind tower and by a sufficient distance so that the wind tower does not interfere with the other wind tower.
Structure. A wind tower must be of monopole construction to the extent practicable. If monopole construction is not practicable, a wind tower must be of freestanding construction to the extent practicable. If monopole or freestanding construction is not practicable, a wind tower may be guyed.
Height. The total height of a wind energy system shall not exceed 175 feet. Other maximum building/structure height restrictions within other sections of this chapter are not applicable.
Clearance. The vertical distance from ground level to the tip of a wind turbine blade when the blade is at its lowest point must be at least 30 feet.
Access and safety.
Security. A wind tower, including any climbing aids, must be secured against unauthorized access by means of a locked barrier. A security fence shall be required at a minimum height of eight feet.
Climbing aids. Monopole wind towers shall have all climbing aids and any platforms locked and wholly inside the tower.
Operational safety. Wind towers shall have an automatic braking, governing or feathering system to prevent uncontrolled rotation, overspeeding and excessive pressure on the tower structure, rotor blades and turbine components.
Lightning. All wind towers shall provide a continuous electrical path to the ground to protect the tower from lightning.
Access roads. All wind energy systems shall use existing roads to provide access to the facility site or, if new roads are needed, minimize the amount of land used for new roads and locate them so as to minimize adverse environmental impacts.
Electrical wires.
Transmission lines. All wind energy systems shall combine transmission lines and points of connection to local distribution lines.
Substations. All wind energy systems shall connect the facility to existing substations or, if new substations are needed, minimize the number of new substations.
Stray current. Properly installed wind energy systems will not generate this form of electrical pollution, often referred to stray or ground current. A measurement before and after installation to insure no gain in existing electrical pollution is required for all wind energy systems over 10kw. Wind energy systems of any size may be measured on an on/off basis to resolve any complaint of electrical pollution. Mitigation must be immediate with the wind energy system shut down until complete. Compliance with the National Electric Safety Code for both installation and testing protocol is required.
Lighting. A wind tower and turbine may not be artificially lighted unless such lighting is required by the Federal Aviation Administration (FAA), other governmental agency, recognized safety guidelines (i.e., Mercy Flight), or the Planning Board. If lighting is required, the lighting must comply with FAA minimum requirements and, whenever possible, be at the lowest intensity allowed. If more than one lighting alternative is available, the Town Planning Board reserves the right to choose the least obtrusive lighting option available.
Buildings and outdoor storage. Any ancillary buildings and any outside storage associated with a wind energy system must, to the extent reasonably possible, use materials, colors, textures, screening and landscaping that will blend the facility into the natural setting and existing environment (i.e., in an agricultural setting accessory buildings could be designed to look like barns). Appropriate landscaping or architecture shall be provided to screen accessory structures from roads and adjacent residences.
Aesthetics.
Appearance, color, and finish. The exterior surface of any visible components of a wind energy system must be a nonreflective, neutral color.
Visual impact assessment. The applicant shall complete a visual environmental assessment form (Visual EAF - SEQR), as well as a visual impact assessment of any proposed wind energy systems or any proposed modifications to existing wind energy systems. The visual impact assessment shall include assessment of visual impact from abutting properties and streets of the tower base, guy wires, accessory buildings and any other element of the wind energy system identified by the Town or County Planning Board or Town Board.
Signs. No wind tower, turbine, building, or other structure associated with a wind energy system may be used to advertise or promote any product or service. A weather-resistant sign plate no greater than two square feet in size containing the current owner or operator, emergency phone number, and current address of such owner/operator shall be located on the exterior surface of the tower or of the fence surrounding each tower and viewable by a Zoning Enforcement Officer. No other word or graphic representation, other than appropriate warning signs, may be placed on a wind turbine, tower, building, or other structure associated with a wind energy system so as to be visible from any public road.
Agricultural mitigation. The following shall apply to construction areas for wind energy systems located in county-adopted, state-certified agricultural districts. The applicant is required to coordinate with the New York State Department of Agriculture and Markets (Ag. and Markets) to develop an appropriate schedule for milestone inspections to assure that the goals are being met. When required by the Town, the applicant shall hire an environmental monitor to oversee the construction and restoration in agricultural fields. The person or company hired as an environmental monitor shall be approved by the Town and paid by the applicant.
Siting.
Minimize impacts to normal farming operations by locating structures along field edges where possible.
Locate access roads which cross agricultural fields along ridge tops where possible to eliminate the need for cut and fill and reduce the risk of creating drainage problems.
Avoid dividing larger fields into smaller fields, which are more difficult to farm, by locating access roads along the edge of agricultural fields where possible.
All existing drainage and erosion control structures such as diversions, ditches, and tile lines shall be avoided or appropriate measures taken to maintain the design and effectiveness of the existing structures. Any structures disturbed during construction shall be repaired to as close to original condition as possible, as soon as possible, unless such structures are to be eliminated based on a new design.
Construction.
The surface of access roads constructed through agricultural fields shall be level with the adjacent field surface.
Where necessary, culverts and waterbars shall be installed to maintain natural drainage patterns.
All topsoil must be stripped from agricultural areas used for vehicle and equipment traffic and parking. All vehicle and equipment traffic and parking shall be limited to the access road and/or designated work areas such as tower sites and laydown areas. No vehicles or equipment will be allowed outside the work area without prior approval from the landowner and, when applicable, the environmental monitor.
Topsoil from work areas (tower sites, parking areas, "open-cut" electric cable trenches, along access roads) shall be stockpiled separate from other excavated material (rock and/or subsoil). At least 50 feet of temporary workspace is needed along "open-cut" electric cable trenches for proper topsoil segregation. Topsoil stockpile areas shall be clearly designated in the field and on the on-site "working set" of construction drawings. Stockpiles will be located far enough from access roads and work areas to eliminate the possibility of vehicles inadvertently compacting this soil.
In cropland, hayland and improved pasture, a minimum depth of 48 inches of cover will be required for all buried electric wires. In unimproved grazing areas and land permanently devoted to pasture, a minimum depth of 36 inches of cover will be required. In areas where the depth of soil over bedrock ranges from zero to 48 inches, the electric wires shall be buried entirely below the top of the bedrock or at the depth specified for the particular land use, whichever is less. At no time will the depth of cover be less than 24 inches below the soil surface.
All excess subsoil and rock shall be removed from the site. On-site disposal of such material may be allowed if approved by the landowner and, when applicable, the environmental monitor, with appropriate consideration given to any possible agricultural or environmental impacts. (NOTE: Any permits necessary for disposal under local, state and/or federal laws and regulations must be obtained by the contractor, with the cooperation of the landowner when required.)
In pasture areas, work areas will be fenced to prevent livestock access, consistent with landowner agreements.
All pieces of wire, bolts, and other unused metal objects will be picked up and properly disposed of as soon as practical after the unloading and packing of turbine components so that these objects will not be mixed with any topsoil. (NOTE: Any permits necessary for disposal under local, state and/or federal laws and regulations must be obtained by the contractor, with the cooperation of the landowner when required.)
Travel of all heavy equipment (including concrete trucks and erection cranes) will be limited to designated access roads and gravel crane pads at all times.
Excess concrete will not be buried or left on the surface in active agricultural areas. Concrete trucks will be washed outside of active agricultural areas. (NOTE: Any permits necessary for disposal under local, state and/or federal laws and regulations must be obtained by the contractor, with the cooperation of the landowner when required.)
Restoration.
Restoration scheduling will be consistent with the seasonal limitations identified by Ag. and Markets and will be incorporated into the project's agricultural district notice of intent (if applicable) as well as the stormwater management plan (general permit).
Following construction, all disturbed agricultural areas will be decompacted to a depth of 18 inches with a deep ripper or heavy-duty chisel plow. In areas where the topsoil was stripped, soil decompaction shall be conducted prior to topsoil replacement. Following decompaction, all rocks four inches and larger in size will be removed from the surface of the subsoil prior to replacement of the topsoil. The topsoil will be replaced to original depth and the original contours will be reestablished where possible. All rocks four inches and larger shall be removed from the surface of the topsoil. Subsoil decompaction and topsoil replacement should be avoided after October 1, unless approved on a site-specific basis by the landowner in consultation with Ag. and Markets. All parties involved should be cognizant that areas restored after October 1 may not obtain sufficient growth to prevent erosion over the winter months. If areas are to be restored after October 1, some provision should be made to restore any eroded areas in the springtime, to establish proper growth.
All access roads will be regraded to allow for farm equipment crossing and to restore original surface drainage patterns, or other drainage pattern incorporated into the design.
All restored agricultural areas shall be seeded with the seed mix specified by the landowner, in order to maintain consistency with the surrounding areas.
All surface or subsurface drainage structures damaged during construction shall be repaired to as close to preconstruction conditions as possible, unless said structures are to be removed as part of the project design.
Following restoration, all construction debris will be removed from the site.
Two-year monitoring and remediation.
The applicant will provide a monitoring and remediation period of no less than two years immediately following the completion of initial restoration. The two-year period allows for the effects of climatic cycles such as frost action, precipitation and growing seasons to occur, from which various monitoring determinations can be made. The monitoring and remediation phase will be used to identify any remaining agricultural impacts associated with construction that are in need of mitigation and to implement the follow-up restoration. The applicant will provide to the Town all testing, data and reports necessary to document compliance with Subsection U(4)(a) through (e) herein.
General conditions to be monitored include topsoil thickness, relative content of rock and large stones, trench settling, crop production, drainage and repair of severed fences, etc. Impacts will be identified through on-site monitoring of all agricultural areas impacted by construction and through contact with respective farmland operators and Ag. and Markets.
Topsoil deficiency and trench settling shall be mitigated with imported topsoil that is consistent with the quality of topsoil on the affected site. Excessive amounts of rock and oversized stone material will be determined by a visual inspection of disturbed areas as compared to portions of the same field located outside the construction area. All excess rocks and large stones will be removed and disposed of by the applicant.
When the subsequent crop productivity within affected areas is less than that of the adjacent unaffected agricultural land, the applicant as well as other appropriate parties will help to determine the appropriate rehabilitation measures to be implemented. Because conditions which require remediation may not be noticeable at, or shortly after, the completion of construction, the signing of a release form prior to the end of the remediation period will not obviate the applicant's responsibility to fully redress all project impacts.
Subsoil compaction shall be tested using an appropriate soil penetrometer or other soil compaction measuring device. Compaction tests will be made for each soil type identified on the affected agricultural fields. The subsoil compaction test results within the affected area will be compared with those of the adjacent unaffected portion of the farm representative subsoil density of the unaffected areas; additional shattering of the soil profile will be performed using the appropriate equipment. Deep shattering will be applied during periods of relatively low soil moisture to ensure the desired mitigation and to prevent additional subsoil compaction. Oversized stone/rock material which is uplifted to the surface as a result of the deep shattering will be removed.
Noise. Audible noise due to the operation of any part of a wind energy system shall not exceed 45 decibels (dBA) for any period of time when measured at any residence, school, hospital, church, public park, public library or place of public assembly. Audible noise due to the operation of any part of a wind energy system shall not exceed 30 decibels (dba) when measured inside any residence.
Electromagnetic interference (EMI). No individual tower facility shall be installed in any location where proximity with existing broadcast, retransmission or reception antenna (including residential antenna) for radio, television, wireless phone or other personal communication systems would produce electromagnetic interference with signal transmission or reception. Alternatively, wind energy systems shall be properly filtered or shielded in order to avoid electromagnetic interference and shall comply with rules and regulations of the Federal Communication Commission contained in 47 CFR Parts 15 and 18.
Insurance. Prior to issuance of a building permit, the applicant shall provide the Town proof of a level of insurance, to be determined by the Town Board in consultation with the Town's insurer and attorney, to cover damage or injury that might result from the failure of a tower or towers or any other part or parts of the generation and transmission facility. If the insured is not the owner of the property, the applicant must show the owner of the property as coinsured and must allow for the property owner to continue coverage if the applicant is unable to continue coverage.
Tax exemption. The Town hereby exercises its right to opt out of tax exemption provisions of Real Property Tax Law § 487, pursuant to the authority granted by Paragraph 8 of that law.
Inspections. The Town Code Enforcement Officer or designated representative shall have the right at any reasonable time to enter the premises on which a wind energy system has been placed to inspect any and all parts of said installation. After conducting said inspection, the Code Enforcement Officer may order the owner of the wind energy system to render it inoperative for reasons related to safety, noise, electrical pollution or electromagnetic interference. If unable to contact the owner, the Code Enforcement Officer may execute an emergency shutdown procedure which has been provided in advance by the owner/applicant in the form of a clear and concise check sheet as part of the permit process. All liability for the execution of an emergency shutdown shall be with the owner of the wind energy system.
Penalties. Any person, firm, corporation or entity which may violate any provision of this section shall be guilty of a violation and, upon conviction thereof, shall be subject to the penalties set forth in § 235-65 of Town of Batavia Zoning Ordinance. Any person, firm, corporation or entity which may violate any provision of this section shall become liable to the Town for any actual expense or loss or damage occasioned by the Town by reason of such violation; in addition to any actual losses or damages sustained by the Town, such expense shall also include but not be limited to statutory costs, disbursements and reasonable attorney fees in the event legal action is commenced to enforce this section. The imposition of penalties herein prescribed shall not preclude the Town or any person from instituting appropriate legal action or proceedings to prevent a violation of this section or to restrain or enjoin the use or occupancy of premises or any part thereof in violation of this section.
Severability. The provisions of this section are severable, and the invalidity of any section, subdivision, paragraph, or other part of this chapter shall not affect the validity or effectiveness of the remainder of the chapter.
§ 235-39 Signs.
[Amended 2-19-2003; 2-20-2008 by L.L. No. 2-2008]
General standards. Except as provided in Subsection B, every sign (other than those identified in Subsection B below) shall require a zoning permit.
Also, every sign shall be designed, attached, supported, and located in such a manner as to:
Signs may be illuminated by a steady light provided that lighting does not illuminate adjacent property. Flashing, oscillating and revolving signs are not permitted, unless necessary for public safety or welfare.
Signs permitted in all districts without a zoning permit:
Identification signs.
One number and/or nameplate identifying residents, mounted on house, apartment or mailbox, not exceeding one square foot in area.
One lawn sign identifying residents, not exceeding one square foot, or two square feet if double-faced. Such signs are to be nonilluminated except by a light which is an integral part of a lamppost if used as a support, with no advertising message thereon.
One sign identifying the name of the farm owner or name of the farm not exceeding 24 square feet in area and located not less than five feet from a lot line.
One "For Sale" or "For Rent" sign not exceeding an area of six square feet. Such sign shall not be greater than six feet in height and shall be located not less than five feet from a lot line. Such signs shall be removed upon completion of the sale or rental.
Directional signs. No more than two directional signs shall be permitted per street entrance to any lot. There shall be no limit to the number of directional signs providing directional information interior to a lot. The maximum total area for directional signs shall be eight square feet.
Temporary signs. A sign used on a temporary basis to identify or announce an activity or function such as a construction project and the specialists concerned, elections, sporting events, carnivals, garage sales, meetings, etc. Such signs shall not exceed 12 square feet and shall not be located less than five feet from a lot line. Temporary signs shall be removed within 10 days after the activity or function ends. Garage sales and farm produce sales temporary signs used more than 60 days per year shall require a permit as set forth in Subsection D(3).
Window signs. Window signs shall be permitted in all nonresidential zoning districts, subject to the following limitations:
The aggregate area of all such signs shall not exceed 25% of the window area on which such signs are displayed. Window panels separated by mullions shall be considered as one continuous window area.
Window signs shall not be assessed against the sign area permitted for other sign types.
Any window sign hung or mounted within 12 inches of the interior of the window will be assessed against the allowable twenty-five-percent total window coverage area.
Noncommercial speech signs; Residential Districts (AG-R, R, HR). Noncommercial speech signs may be permitted in any residential district without a sign permit, subject to the following conditions:
The maximum number of noncommercial speech signs per lot shall be two.
Of the total number of signs, only one shall be a window sign. No window sign shall exceed 25% of the total window opening, or two square feet, whichever is smaller.
A building-mounted sign may not exceed two square feet in total area. Any building mounted sign shall be located in proximity to an exterior entrance.
A freestanding sign, unless otherwise specified herein, shall:
Not exceed six square feet in sign area;
Not exceed four feet in height above grade;
Maintain a minimum ground clearance of two feet;
Not be closer to any lot line than five feet;
Not interfere with vehicle site distances either from, along or to a public way; and
Not be illuminated, except indirectly.
Noncommercial speech signs; Business and Industrial Districts (C, I, IP, PBD, HC). Noncommercial speech signs associated with a residential use in a business or industrial district shall comply with the standards specified in Subsection B(6) above. Noncommercial speech signs associated with nonresidential uses may be allowed in any business or industrial district without a sign permit, subject to the following conditions:
The maximum number of noncommercial speech signs per lot shall be two.
Such signs shall not exceed 32 square feet in area.
Freestanding noncommercial speech signs shall not be closer to any lot line than five feet.
Freestanding noncommercial speech signs shall not exceed six feet in height above grade level.
Building-mounted noncommercial speech signs shall be located on the first floor front facade of the structure.
Noncommercial speech signs shall not be illuminated, except indirectly.
Permit requirements.
Permits required. Unless specifically exempted, a permit must be obtained from the Zoning Officer for the erection and maintenance of all signs erected or maintained within this jurisdiction and in accordance with other ordinance or local laws of this jurisdiction. Exemptions from the necessity of securing a permit, however, shall not be construed to relieve the owner of the sign involved from responsibility for its erection and maintenance in a safe manner and in a manner in accordance with all the other provisions of this section.
Construction documents. Before any permit is granted for the erection of a sign or sign structure requiring such permit, construction documents shall be filed with the Zoning Officer showing the dimensions, materials and required details of construction, including loads, stresses, anchorage and any other pertinent data. The permit application shall be accompanied by the written consent of the owner or lessee of the premises upon which the sign is to be erected and by engineering calculations signed and sealed by a registered design professional where required by the New York State Building Code.
Changes to signs. No sign shall be structurally altered, enlarged or relocated except in conformity to the provisions herein, nor until a proper permit, if required, has been secured. The changing or maintenance of moveable parts or components of an approved sign that is designed for such changes shall not be deemed a structural alteration.
Permit fees. Permit fees to erect, alter or relocate a sign shall be in accordance with the fee schedule adopted within this jurisdiction.
Other signs permitted in Agricultural, Agricultural-Residential, Residential or Hamlet Residential Districts. The following signs are permitted in AG-R, R or HR Districts upon issuance of a zoning permit:
One home occupation or skilled trade shop sign not exceeding four square feet in area and located not less than five feet from a lot line.
One sign identifying a mobile home park in an Agricultural-Residential District, not exceeding 20 square feet in area and located not less than five feet from a lot line.
One sign identifying farm produce sales or garage sales not exceeding 12 square feet in area and located not less than five feet from a lot line when used 60 or more days per year.
One sign identifying a school, church, public park or public building, not exceeding 40 square feet in area on any one side and located not less than five feet from a lot line.
One business sign for uses which have a valid special use permit to operate. Such sign may either be wall-mounted with a maximum size of 20 square feet or freestanding with a maximum size of eight square feet per side. Freestanding signs shall be limited in height to 25 feet and not be located within 10 feet of a property line. The final location/placement of all signs for uses allowed by special use permits in the AG-R and R Districts shall be determined by the Planning Board.
Other signs permitted in Commercial, Industrial, or Industrial Park Districts. The following business signs are permitted in C, I, or IP Districts upon issuance of a zoning permit. Site plan review is required for all totally new signs. Replacement signs (same type, size and location) require a zoning permit but are not subject to site plan review.
Two business signs, one of which may be freestanding (except for shopping centers), shall be allowed for each permitted use. If attached, such signs shall not exceed a total area of 200 square feet or an area equal to 10% of the wall area of the building or portion thereof devoted to such use or activity, whichever is less. No sign shall project more than one foot from the facade of the building.
Freestanding business signs shall be permitted. Such signs shall conform to the following provisions relating to their number and size:
Each commercial or industrial use, except as limited by Subsection E(2)(b), may have one freestanding business sign, except businesses located on through lots which may have two. Such freestanding sign shall have a sign area proportional to the size of the building as set forth below, shall be not more than 35 feet in height, and shall be located not less than five feet from a lot line.
Size of Building (square feet) | Maximum Size of Freestanding Sign (square feet, one side) | |
Less than 5,000 | 50 | |
5,000 to 34,999 | 75 | |
35,000 to 100,000 | 100 | |
Greater than 100,000 | 150 |
Freestanding signs in a shopping center or industrial park shall be limited to one directory sign at any location thereon not exceeding five square feet in area for each acre of land in the shopping center or industrial park, provided that no such sign shall exceed 50 square feet in area.
Off-premises directional signs for businesses located in the Town of Batavia not exceeding 32 square feet in size and limited to two signs per use shall be permitted. Such signs shall be located not less than five feet from a lot line.
Off-premises advertising signs are allowed by special use permit in compliance with Subsection G.
Portable signs. Any sign not permanently attached to the ground or a building. In addition, any temporary sandwich-type, sidewalk, or curb sign over 12 square feet in area and/or over four feet in height is considered to be a portable sign. Such signs shall be located not less than five feet from a lot line.
Awning signs. Awning signs shall be permitted in all nonresidential zoning districts, subject to the following limitations:
The copy area of awning signs shall not exceed an area equal to 25% of the background area of the awning or awning surface to which such a sign is affixed or applied, or the permitted area for wall or fascia signs, whichever is less.
Neither the background color of an awning, nor any graphic treatment or embellishment thereto, such as striping, patterns or valances, shall be included in the computation of sign copy area.
Canopy signs. Canopy signs shall be permitted in all nonresidential zoning districts, subject to the following limitations:
The permanently affixed copy area of canopy signs shall not exceed an area equal to 25% of the face area of the canopy or architectural projection upon which such sign is affixed or applied and shall not exceed the total sign area allowed.
Graphic striping, patterns or color bands on the face of a building, canopy or architectural projection shall not be included in the computation of sign copy area. However, any numbers or verbiage will be included in the computation of the sign copy area.
Under-canopy signs. Under-canopy signs shall be permitted in all nonresidential zoning districts, subject to the following limitations:
Projecting signs. Projecting signs shall be permitted in all nonresidential zoning districts, subject to the following limitations:
Projecting signs shall be permitted in lieu of freestanding signage on any street frontage limited to one sign per occupancy along any street frontage with a public entrance to such an occupancy, and shall be limited in height and area to 1.5 square feet per each one lineal foot of building frontage, except that no such sign shall exceed an area of 60 square feet.
No such sign shall extend vertically above the highest point of the building facade upon which it is mounted.
Such signs shall not extend over a public sidewalk in excess of two feet, measured from the face of the building or supporting structure to the outside edge of the sign.
Such signs shall maintain a clear vertical distance above any public sidewalk a minimum of 10 feet measured from grade to the bottom of the sign.
A-frame (temporary).
Signs for development complexes.
Master sign plan required. All landlord or single owner controlled multiple-occupancy development complexes such as shopping centers, multiple-family housing units or planned industrial parks shall submit to the Planning Board a master sign plan prior to issuance of individual sign permits. The master sign plan shall establish standards and criteria for all signs in the complex that require permits, and shall address, at a minimum, the following:
Development complex sign. In addition to the freestanding business identification signs otherwise allowed by this section, every multiple-occupancy development complex shall be entitled to one freestanding sign per street front, at the maximum size permitted for business identification freestanding signs, to identify the development complex. No business identification shall be permitted on a development complex sign. Any freestanding sign otherwise permitted under this section may identify the name of the development complex.
Compliance with master sign plan. All applications for sign permits for signage within a multiple-occupancy development complex shall comply with the master sign plan. The Zoning Officer shall ensure that individual signs are in conformance with the master sign plan prior to issuing permits for the individual signs.
Amendments. Any amendments to a master sign plan must be signed and approved by the owner(s) within the development complex before such amendment will become effective.
Off-premises advertising signs. Off-premises advertising signs shall be located and maintained only in the C, I and IP Districts upon issuance of a special use permit and in accordance with the standards set forth in this chapter.
Only one off-premises advertising sign shall be permitted per parcel of property and such parcel must meet the minimum required lot dimensions (e.g., lot frontage, lot area, etc.) for the district in which it is located.
Off-premises advertising signs shall not exceed 300 square feet of sign area nor exceed 35 feet in height.
Off-premises advertising signs of 25 square feet or less in sign area may be placed not closer than 10 feet to a property line. Off-premises advertising signs greater than 25 square feet in sign area must meet all the minimum required yard setbacks for the respective district.
Nonconforming signs.
Nonconforming signs, whether on premises or off premises, shall be removed at the expense of the property owner when the use is discontinued. This shall include portable, temporary and permanent signs.
Nonconforming signs may not be enlarged, extended, relocated or altered in any way, except to make them conform to provisions of this chapter. This provision shall not restrict routine maintenance of nonconforming signs involving replacement of electrical parts and repainting.
Prohibited signs. The following types of signs are prohibited and shall not be permitted, erected, or maintained in any zoning district, and the owner thereof shall, upon written notice of the Building Inspector, forthwith, in the case of immediate danger, or otherwise within 10 days, make such sign conform to the provisions of this chapter or remove it. If the order is not complied with, the Building Inspector may cause said sign to be removed at the expense of the owner.
Any sign which by reason of its size, location, content, coloring or manner of illumination constitutes a traffic hazard or a detriment to traffic safety by obstructing the vision of drivers, or by obstruction or detraction from the visibility of any traffic control device on public streets and roads.
Signs which obstruct free ingress to or egress from a required door, window, fire escape or other required exit way.
Signs which make use of words such as "Stop," "Look," "Danger," and other words, phrases, symbols, or characters in such a manner as to interfere with, mislead or confuse traffic.
Any sign which has any visible moving part, visible revolving parts or visible mechanical movement of any description (except time and temperature revolving signs as allowed) or other apparent visible movement achieved by electrical or kinetic means, including intermittent electrical pulsations, or by action of normal wind current.
Signs or other exterior advertising structures displaying any obscene, indecent, or immoral matter.
Any sign attached to, or placed on, a vehicle or trailer parked on public or private property, except for signs meeting the following conditions:
The primary purpose of such a vehicle or trailer is not the display of signs.
The signs are magnetic, decals or painted upon an integral part of the vehicle or equipment as originally designed by the manufacturer and do not break the silhouette of the vehicle.
The vehicle or trailer is in operating condition, currently registered and licensed to operate on public streets when applicable, and actively used or available for use in the daily function of the business to which such signs relate.
Vehicles and trailers are not used primarily as static displays, advertising a product or service, nor utilized as storage, shelter or distribution points for commercial products or services for the general public.
Balloons, inflatable devices, streamers, sandwich board signs or pinwheels, except those temporarily displayed as part of a special sale, promotion or community event. For the purposes of this subsection, "temporarily" means no more than 21 days in any calendar year.
Definitions (see also graphic representations).[1] For the purpose of this section, the terms used herein are defined as follows:
A sign structure that has ceased to be used, and the owner intends no longer to have used, for the display of sign copy, or as otherwise defined by state law.
A sign employing actual motion or the illusion of motion. Animated signs, which are differentiated from changeable signs as defined and regulated by this Code, include the following types:
Animated signs producing the illusion of movement by means of electronic, electrical or electromechanical input and/or illumination capable of simulating movement through employment of the characteristics of one or both of the classifications noted below:
Animated signs or animated portions of signs whose illumination is characterized by a repetitive cycle in which the period of illumination is either the same as or less than the period of nonillumination. For the purposes of this section, flashing will not be defined as occurring if the cyclical period between on-off phases of illumination exceeds four seconds.
Animated signs or animated portions of signs whose illumination is characterized by simulated movement through alternate or sequential activation of various illuminated elements for the purpose of producing repetitive light patterns designed to appear in some form of constant motion.
Animated signs or devices motivated by wind, thermal changes or other natural environmental input. Includes spinners, pinwheels, pennant strings, and/or other devices or displays that respond to naturally occurring external motivation.
Animated signs characterized by repetitive motion and/or rotation activated by a mechanical system powered by electric motors or other mechanically induced means.
Any projection that is not intended for occupancy and that extends beyond the face of an exterior wall of a building, but that does not include signs as defined herein. See also "Awning"; "Backlit awning"; "Canopy, attached"; and "Canopy, freestanding."
An architectural projection or shelter projecting from and supported by the exterior wall of a building and composed of a nonrigid material and/or fabric on a supporting retractable framework.
A sign displayed on or attached flat against the surface or surfaces of an awning. See also "Wall" or "Fascia sign."
An awning with a translucent covering material and a source of illumination contained within its framework.
A flexible substrate on which copy or graphics may be displayed.
A sign utilizing a banner as its display surface.
See "Off-premises sign" and "Outdoor advertising sign."
The entire side of a building, from ground level to the roofline, as viewed perpendicular to the walls on that side of the building.
A multisided overhead structure or architectural projection supported by attachments to a building on one or more sides and cantilevered from such building. The surface(s) and/or soffit of an attached canopy may be illuminated by means of internal or external sources of light.
A multisided overhead structure supported by columns, but not enclosed by walls. The surface(s) and/or soffit of a freestanding canopy may be illuminated by means of internal or external sources of light.
A sign affixed to the visible surface(s) of an attached or freestanding canopy. For reference, see figure.[2]
A sign with the capability of content change by means of manual or remote input, including signs which are:
Changeable sign whose message copy or content can be changed manually.
Changeable sign whose message copy or content can be changed by means of remote electrically energized on-off switching combinations of alphabetic or pictographic components arranged on a display surface. Illumination may be integral to the components, such as characterized by lamps or other light-emitting devices; or it may be from an external light source designed to reflect off the changeable component display. See also, "Electronic message sign or center."
A sign that is supported partly by pole and partly by a building structure.
Those letters, numerals, figures, symbols, logos and graphic elements comprising the content or message of a sign, excluding numerals identifying a street address only.
A freestanding sign identifying a multiple-occupancy development, such as a shopping center or planned industrial park, which is controlled by a single owner or landlord, approved in accordance with § 235-39F(2) of this chapter.
Any sign that is designed and erected for the purpose of providing direction and/or orientation for pedestrian or vehicular traffic.
A sign with two faces, back to back.
Any sign activated or illuminated by means of electrical energy.
An electrically activated changeable sign whose variable message capability can be electronically programmed.
Any sign placed outside a building.
See "Building facade."
See "Wall sign."
See "Animated Sign, electrically activated."
A sign principally supported by a structure affixed to the ground and not supported by a building, including signs supported by one or more columns, poles or braces placed in or upon the ground. For visual reference, see figure.[3]
The length of an exterior building wall or structure of a single premises oriented to the public way or other properties that it faces.
The length of the property line(s) of any single premises along either a public way or other properties on which it borders.
See "Freestanding sign."
A sign used to identify a specific property by address, occupant or use.
A sign characterized by the use of artificial light either projecting through its surface(s) (internally illuminated); or reflecting off its surface(s) (externally illuminated).
Any sign placed within a building, but not including window signs as defined by this section. Interior signs, with the exception of window signs as defined, are not regulated by this chapter.
An inclined decorative roof-like projection that is attached to an exterior building facade.
Any sign attached to the restaurant building listing menu food items.
A sign containing three or more faces.
A sign which contains a message that is not related to any business purpose, but which expresses an opinion, political message or other noncommercial statement.
See "Outdoor advertising sign."
A sign erected, maintained or used in the outdoor environment for the purpose of the display of messages appurtenant to the use of, products sold on, or the sale or lease of the property on which it is displayed.
A permanent sign erected, maintained or used in the outdoor environment for the purpose of the display of commercial or noncommercial messages not appurtenant to the use of, products sold on, or the sale or lease of the property on which it is displayed.
The extension of a building facade above the line of the structural roof.
See "Freestanding sign."
A temporary sign intended to advance a political statement, cause or candidate for office. A legally permitted outdoor advertising sign shall not be considered to be a political sign.
Any sign not permanently attached to the ground or to a building or building surface.
A sign other than a wall sign that is attached to or projects more than 12 inches from a building face or wall or from a structure whose primary purpose is other than the support of a sign. For visual reference, see figure.[4]
A temporary sign advertising the sale, lease or rental of the property or premises upon which it is located.
A sign that revolves 360° about an axis. See also "Animated sign, mechanically activated."
The top edge of a peaked roof or, in the case of an extended facade or parapet, the upper most point of said facade or parapet.
A sign mounted on, and supported by, the main roof portion of a building, or above the uppermost edge of a parapet wall of a building and which is wholly or partially supported by such a building. Signs mounted on mansard facades, pent eaves and architectural projections such as canopies or marquees shall not be considered to be roof signs. For a visual reference example of a roof sign, and a comparison of differences between roof and fascia signs, see figure.[5]
Any device visible from a public place that displays either commercial or noncommercial messages by means of graphic presentation of alphabetic or pictorial symbols or representations. Noncommercial flags or any flags displayed from flagpoles or staffs will not be considered to be signs.
The area of the smallest geometric figure, or the sum of the combination of regular geometric figures, which comprise the sign face. The area of any double-sided or "V" shaped sign shall be the area of the largest single face only. The area of a sphere shall be computed as the area of a circle. The area of all other multiple-sided signs shall be computed as 50% of the sum of the area of all faces of the sign.
Those letters, numerals, figures, symbols, logos and graphic elements comprising the content or message of a sign, exclusive of numerals identifying a street address only.
The surface upon, against or through which the sign copy is displayed or illustrated, not including structural supports, architectural features of a building or sign structure, nonstructural or decorative trim, or any areas that are separated from the background surface upon which the sign copy is displayed by a distinct delineation, such as a reveal or border.
In the case of panel- or cabinet-type signs, the sign face shall include the entire area of the sign panel, cabinet or face substrate upon which the sign copy is displayed or illustrated, but not open space between separate panels or cabinets.
In the case of sign structures with routed areas of sign copy, the sign face shall include the entire area of the surface that is routed, except where interrupted by a reveal, border, or a contrasting surface or color.
In the case of signs painted on a building, or individual letters or graphic elements affixed to a building or structure, the sign face shall comprise the sum of the geometric figures or combination of regular geometric figures drawn closest to the edge of the letters or separate graphic elements comprising the sign copy, but not the open space between separate groupings of sign copy on the same building or structure.
In the case of sign copy enclosed within a painted or illuminated border, or displayed on a background contrasting in color with the color of the building or structure, the sign face shall comprise the area within the contrasting background or within the painted or illuminated border.
Any structure supporting a sign.
That which is built or constructed, or a portion thereof.
A sign intended to display either commercial or noncommercial messages of a transitory or temporary nature. Portable signs or any sign not permanently embedded in the ground or not permanently fixed to a building or sign structure that is permanently embedded in the ground are considered temporary signs.
A sign attached to the underside of a canopy or marquee.
Signs containing two faces of approximately equal size, erected upon common or separate structures, positioned in a "V" shape with an interior angle between faces of not more than 90° with the distance between the sign faces not exceeding five feet at their closest point.
A sign that is in any manner affixed to any exterior wall of a building or structure and that projects not more than 12 inches from the building or structure wall, including signs affixed to architectural projections from a building, provided the copy area of such signs remains on a parallel plane to the face of the building facade or to the face or faces of the architectural projection to which it is affixed. For visual reference and comparison examples of differences between wall or fascia signs and roof signs, see figure.[6]
A sign affixed to or within 12 inches directly behind the surface of a window with its message intended to be visible to and readable from the public way or from adjacent property.
The agent or representative of the Town of Batavia, or his delegates or deputies, responsible for the enforcement of the ordinances and codes of the Town.
[1]
Editor's Note: The graphic representations are on file in the Town offices.
[2]
Editor's Note: The figures are on file in the Town offices.
[3]
Editor's Note: The figures are on file in the Town offices.
[4]
Editor's Note: The figures are on file in the Town offices.
[5]
Editor's Note: The figures are on file in the Town offices.
[6]
Editor's Note: The figures are on file in the Town offices.
§ 235-40 Commercial excavation.
Except when incidental to the construction of a building on the same lot, the excavation, processing or sale of sand, gravel or clay or other natural mineral deposits or the quarrying of any kind of rock formation shall require a special use permit from the Planning Board as provided for in § 235-63.
Major excavation.
State permit. In order to obtain said special use permit, the applicant shall furnish evidence of a valid permit from the New York State (NYS) Department of Environmental Conservation pursuant to Title 27, Article 23 of the Environmental Conservation Law.
Reclamation. The applicant shall further be required to comply with the reclamation standards established by the New York State Department of Environmental Conservation while carrying out such use.
Minor excavation. As part of the application process for a special use permit, the applicant's plan shall be presented to the Genesee County Soil and Water Conservation District for its review and comments. Also, before issuing a special use permit, the Planning Board must find that such excavation will not endanger the stability of adjacent land or structures or the quality or quantity of groundwater and that it does not constitute a detriment to public health, safety, or welfare by reason of excessive dust, noise, traffic, erosion, siltation or other condition. In granting said special use permit, the Planning Board shall specify any reasonable requirement, including the following:
Minimum lot area. The minimum lot area shall be 10 acres.
Minimum setback requirements. All buildings shall be located not less than 100 feet from any street or property line. The top of the slope of all excavation operations shall be located or shall occur not less than 100 feet from any street or property line. The setback area shall not be used for any use in conjunction with the excavation and appurtenant activities except for one public notice sign identifying the use of the property, fencing, berms, buffers, access roads and/or parking.
Slope. During mining the banks of all excavations shall be maintained at a slope not to exceed the normal angle of repose of such material.
Drainage. All surface drainage and any waste matter shall be controlled to prevent any silt, waste products, process residues, etc., from flowing onto public roads or adjacent property or into any stream. Excavation areas shall be planned and graded to avoid collections of stagnant water.
Dust. All storage areas, yards, service roads, or other untreated open areas within the boundaries of the excavation area shall be so maintained and improved as to minimize dust or other windblown air pollutants.
Roadside landscape. Existing trees and ground cover along public road frontage shall be preserved, maintained and supplemented in the entire area of the roadside setback for the purpose of screening and noise reduction. If, however, the existing topography and natural vegetation does not lend itself to an economically feasible supplement plan, the operation can, if properly landscaped with grass, trees and shrubs, grade back the overburden around the perimeter of the excavation site to create a berm for the purpose of screening and noise reduction. No berm shall be constructed within 25 feet of any right-of-way line or property boundary lines.
Fencing. Fencing may be required depending upon the existence of an earthen berm, the nature of the operations, distance from developed areas, distance from property lines, depth of pit water and slope of pit walls.
Topsoil. All topsoil and subsoil shall be stripped from the excavation areas and stockpiled and seeded for use in accordance with the reclamation plan. The location of topsoil to be stored shall be identified. Such stockpiles shall be treated to minimize the effects of erosion by wind or water upon public roads, streams, or adjacent property.
Erosion. The applicant's plan shall also include a provision for the control of soil erosion.
Hours of operation. All operations shall be conducted between the hours of 7:00 a.m. and 6:00 p.m. with no Sunday or holiday operations, except in the case of public or private emergency (i.e., flooding, spills, utility line breaks, etc.) or whenever any reasonable or necessary repairs to equipment are required to be made.
Blasting and/or processing. Operations involving blasting and on-site processing of mineral deposits shall not be allowed.
Reclamation plan. The applicant shall submit a reclamation plan.
"Reclamation plan" means the applicant's proposal for reclaiming the affected land, including a graphic and written description of the proposed use for all affected land, the method of reclamation and a schedule for performing reclamation.
Where feasible, reclamation shall be a continuing operation. Grading, topsoil replacement and replanting of the area designated for restoration shall continue during the permit period. All reclamation work shall be complete within one year after the termination of operations, at the expense of the operator.
Performance bond. A performance bond or some other financial security may be required in the discretion of the Planning Board to assure that the conditions stipulated in the approval of the special use permit are carried out. Any such security shall be in a form and amount acceptable to the Planning Board.
Duration of special use permit.
The special use permit for a minor excavation shall be issued for a period of one year, subject to a subsequent annual review and recertification by the Planning Board based on a written request for such continuance, which request shall be submitted to the Town Building Inspector at least 60 days prior to the expiration of each such one-year period. A public hearing shall not be required for such annual recertification, except upon motion of the Planning or Town Board.
The special use permit for a major excavation shall continue as long as its New York State Department of Environmental Conservation permit remains in effect, it complies with the terms thereof, and it meets the reclamation standards established by the New York State Department of Environmental Conservation.
If on-site mining or processing operations are not carried out continuously for one year for a major or minor excavation, the site shall be considered abandoned, and, prior to any further excavation or processing, a new special use permit shall be required.
§ 235-41 Cluster residential development.
[Amended 2-20-2008 by L.L. No. 2-2008]
The Planning Board shall have the authority to require or allow a cluster residential development, also referred to as a "conservation subdivision," of one- and/or two-family dwellings, as specified in the New York State Town Law § 278, in any district that permits residences, provided that the following conditions are observed, in addition to the requirements in Chapter 204, Subdivision of Land:
(Reserved)
The developer shall provide for the permanent protection of open space in a manner that is acceptable to the Town Board. In no case shall such lands be less than 25% of the total project area. All such lands shall be suitable, in the opinion of the Planning Board, for the intended use.
The developer shall seek preliminary, nonbinding, informal conditional approval of the Planning Board of the design and arrangement of streets, lots, open spaces, and other elements of the project prior to filing the application for subdivision approval.
The maximum building height and maximum lot coverage requirements as set forth in Zoning Schedule A[1] of this chapter for the district involved apply to the entire cluster development project, whereas the minimum frontage and side and rear yard requirements for the applicable district apply only to the outer lots of said cluster residential development. All other area requirements as set forth in Zoning Schedule A may be modified by the Planning Board.
[1]
Editor's Note: Zoning Schedule A is included at the end of this chapter.
The permitted number of dwelling lots shall not exceed the number that would be permitted if the land were subdivided into lots for single-family dwellings that fully conform to the minimum lot sizes established in Schedule A.[2]
[2]
Editor's Note: Zoning Schedule A is included at the end of this chapter.
§ 235-41.1 Multifamily dwellings, townhouses and twin homes.
[Added 2-20-2008 by L.L. No. 2-2008]
Each multiple residence building, twin home dwelling or townhouse structure shall be constructed and maintained in compliance with the requirements of the Multiple Residence Law and the New York State Uniform Fire Prevention and Building Code, as applicable. Such structure shall, however, conform to the local Code if the Town has established more stringent requirements.
Each multiple residence, twin home dwelling or townhouse development shall have a lot area of not less than two acres.
There shall be a lot area of not less than 4,000 square feet for each dwelling unit located on the lot.
The minimum enclosed living area for each dwelling unit shall be in conformance with the requirements of § 235-17. Twin homes shall meet the requirements for two-family dwellings.
No building shall contain more than eight dwelling units.
Each dwelling unit shall have its own separate full bathroom.
All multiple residence, twin home dwelling and townhouse developments shall provide safe and efficient pedestrian circulation and site lighting.
All multiple residence buildings, twin home dwellings and townhouse structures shall be served by publicly owned, operated and maintained water supply and sanitary sewage disposal facilities.
Each building shall be provided with suitable containers for the storage of recyclable materials and refuse collections. Such containers shall be screened from public view by use of fences or solid walls.
Two parking spaces shall be provided for each dwelling unit. Each parking space shall have a minimum width of 10 feet, and a minimum length of 20 feet. Not less than one parking space for each dwelling unit shall be enclosed.
In addition to the required parking spaces for each dwelling unit, one additional space shall be provided in common parking lots for every four dwelling units for the convenience of residents and their guests. The location of common parking lots shall be determined by the Planning Board as part of the site plan review process.
Each dwelling unit shall have a rear yard adjacent to the unit which shall be reasonably secluded from view from neighboring property or streets and which shall include at least 500 square feet of usable open space.
No multiple residence, twin home dwelling or townhouse development shall have more than two stories or be more than 35 feet in height. Spires, chimneys, cupolas, flagpoles and antennas are exempt from this limitation, provided that the antennas are visually integrated into the building lines.
No multiple residence, twin home dwelling or townhouse building shall be less than 18 feet in width.
No exterior wall shall exceed 50 feet in length unless there is a lateral offset of at least four feet in its alignment.
Except for an accessory structure to an individual dwelling unit, the minimum distance between a multiple residence or townhouse dwelling structure and any other structure on a proposed development site shall be 40 feet, and the minimum distance between a twin home dwelling and any other structure on a proposed development site shall be 20 feet.
No swimming pool shall be located within 40 feet of a multiple residence or townhouse dwelling structure or 20 feet from a twin home dwelling.
Not less than 20% of the land area within a multiple residence, twin home dwelling or townhouse development, excluding parking areas and vehicle access facilities, shall be established and maintained as open space for the use and enjoyment of residents and their guests.
The coverage of all buildings and structures within a multiple residence, twin home dwelling or townhouse development shall not exceed 25% of the area of the entire site.
No structure within a multiple residence, twin home dwelling or townhouse development shall be set back less than 20 feet from any common parking area.
No structure within a multiple residence, twin home dwelling or townhouse development shall be set back less than 50 feet from a public road and not less than 50 feet from the external property line for the development. However, side yard setbacks for individual lots shall be zero feet from the property line wherever two townhouse, twin home dwelling or multifamily dwelling units are joined by a common wall along the parcel boundary.
§ 235-42 Junkyards.
§ 235-43 Recreational vehicles and campgrounds.
Recreational vehicles.
Recreational vehicles may only be temporarily occupied as a dwelling as follows:
For not more than two separate periods, per year, not exceeding two weeks each, one recreational vehicle may be used as a temporary dwelling while parked on the same lot as a permanent dwelling.
With a temporary use permit, a recreational vehicle may be used as a temporary dwelling for a period not to exceed six months and subject to the following conditions:
An unoccupied recreational vehicle may be stored anywhere except in the required front or side yard areas of a lot not less than 15 feet from any lot line or public right-of-way. When so stored, no connections shall be permitted.
Campgrounds.
Location. A campground shall be located and maintained only in AG-R and MHP Districts upon issuance of a special use permit and in accordance with the standards set forth in this chapter.
Existing campgrounds. In addition to the nonconforming use regulations set forth in § 235-15, all existing campgrounds must comply with this section whenever any addition, expansion or alteration (changes affecting lot size or layout, streets and utilities) of the use or operation is proposed.
Standards and requirements for the construction of campgrounds. Before a special use permit for a campground is issued under § 235-63, the Planning Board shall determine that the proposed use is designed and arranged in accordance with the following standards:
Site. The campground shall be located on a well-drained site which is properly graded to ensure rapid drainage so as to be free at all times from stagnant pools of water.
Lots. Each campground shall be divided into lots. The total number of lots shall not exceed 12 per gross acre. Each lot shall have a total area of not less than 2,500 square feet with a minimum width of 30 feet. Only one recreational vehicle or tent shall be permitted to occupy any one lot. Each lot shall have a stand of sufficient size and durability to provide for the placement and removal of a recreational vehicle and for the retention of such recreational vehicle in a stable condition. The stand shall be suitably graded to permit rapid surface drainage.
Setbacks. All recreational vehicles or occupied tents situated in campgrounds shall not be located nearer than a distance of:
Accessibility. Each campground shall be easily accessible from an existing public road with entrances and exits designed and strategically located for safe and convenient movement into and out of the campground to minimize conflicts with the movement of traffic on a public road. All entrances and exits shall be at right angles to existing public roads and of sufficient width to facilitate the turning movements of recreational vehicles.
Street system.
Each campground shall have improved streets to provide convenient access to all lots and other important facilities within the campground.
The street system shall be so designed to permit safe and convenient vehicular circulation within the campground.
Except in cases of emergency, no parking shall be allowed on such streets.
Adequate access shall be provided for each lot. Such access shall have a minimum width of 10 feet.
Utilities. All campground sewer and water facilities shall comply with the regulations of the Genesee County Department of Health and the New York State Department of Environmental Conservation. All other utilities shall comply with the New York State Uniform Code and the authority having jurisdiction.
Open space. Any campground designed for 20 or more sites shall provide a common open area suitable for recreation and play purposes. Such open space shall be conveniently located. The open space area shall be at least 10 percent of the gross land area of the campground but not less than one acre.
Improvements. Lighting, landscaping and buffer areas may be required by the Planning Board and shall be in keeping with surrounding development, the unique features of the site and the health and safety of occupants of the campground.
Management. Every campground shall be managed from an office located on the premises. The management shall maintain the campground in a clean and attractive manner and take reasonable steps to protect the health, safety and comfort of all persons accommodated therein.
Removal of wheels. Unless written consent is received from the Planning Board, it shall be unlawful to remove wheels from any recreational vehicle or otherwise permanently affix such recreational vehicle to the ground. Such removal shall be grounds for the revocation of the special use permit for such campground.
Fence. The Planning Board is authorized to require that some or all of the campground be fenced if circumstances warrant. The Planning Board shall decide what type of fencing is suitable.
Where dwellings on surrounding properties are located within 1,000 feet of the campground, it shall be the responsibility of the campground owner to maintain relative quiet during the hours of 10:00 p.m. to 7:00 a.m.
Campground special use permits.
Pursuant to § 235-63D, the Building Inspector shall inspect at least annually the operation of a campground to make sure it complies with provisions of this chapter and any and all conditions prescribed by the Planning Board when issuing the special use permit.
Before receiving a special use permit for a campground, the owner thereof shall make an adequate showing that the subject property complies with the provisions of this section.
§ 235-44 Home occupations.
Purpose. The purpose of this provision is to allow for home occupations which are compatible with the neighborhoods in which they are located. Some home occupations by the extent of the investment required therefor and/or the nature of their operation have a tendency of increasing beyond the scope of a home occupation and thereby violating the use provisions of the zoning district in which such home occupation exists and adversely affecting surrounding property values.
Process. An applicant shall apply to the Building Inspector for a determination as to whether his/her proposed home occupation is a Category I or II. Home occupations classified as Home Occupation I are considered permitted uses in the AG, AG-R and C Districts and may be issued a zoning permit by the Building Inspector. In the R District a Home Occupation I shall require the issuance of a special use permit by the Planning Board. Home Occupation II uses shall require the issuance of a special use permit in all districts where home occupations are allowed. Expansion of an existing Home Occupation I use to a Home Occupation II shall require the issuance of a special use permit by the Planning Board.
Conditions. The following conditions are intended to ensure both that the home occupation is secondary to the residential use and that it is compatible with the residential character of the neighborhood:
The home occupation shall be carried on inside the principal dwelling and/or inside a building or other structure accessory thereto.
No alteration to the exterior of the principal dwelling and/or the accessory building or structure shall be made which changes the residential character thereof.
Nonresident family members shall not be employed in any Home Occupation I and no more than two nonresident persons shall be employed actually on site at the residence in a Home Occupation II.
Not more than 25% of the floor area of the principal dwelling may be used for the home occupation, and the total floor area to be utilized (not including accessory buildings and structures) shall not exceed 500 square feet.
There shall be no exterior advertising of the home occupation, except for a sign no larger than four square feet for which a permit has been obtained pursuant to the provisions of § 235-39C(1).
There shall be no exterior storage of materials used in the home occupation.
No home occupation shall result in:
Dissemination of noise, vibration, smoke, observable gas or fumes, or other atmospheric pollutant beyond the boundaries of the immediate site of the building in which such use is conducted.
Hazard of fire, explosion, release of toxic or harmful substances (including solvents and waste products) or other physical hazard to any person, building, vegetation, or groundwater.
Radiation or interference with radio or television reception beyond the boundaries of the immediate site of the building in which such use is conducted, or the testing of material or instruments in such manner as to constitute a public nuisance.
Adequate parking shall be provided as set forth in § 235-34. Such off-street parking shall be located not less than 10 feet from any property line.
No residential lot shall contain more than one home occupation. No residential lot shall contain a home occupation together with a skilled trade shop or any other nonresidential use requiring a special use permit.
§ 235-45 Roadside stands.
Roadside stands may be located in any district.
Goods sold shall primarily be home grown.
There shall be a front yard setback of at least 20 feet and side yard setbacks of at least 25 feet each.
Stands shall be of a portable nature and must be removed when not in use.
Off-street parking shall be provided for a minimum of three vehicles with additional provisions if traffic warrants.
Two signs of not more than 12 square feet each may be permitted, located not less than 10 feet from a lot line.
§ 235-46 Animal waste storage facilities.
All proposals for installation and/or modification of animal waste storage facilities shall be submitted to the Genesee County Soil and Water Conservation District (GCSWCD) or United States Natural Resources Conservation Service (NRCS) for its review and determination as to acceptability. If a proposal is acceptable to GCSWCD or NRCS then the Planning Board will consider the potential impacts posed by such a facility upon surrounding land uses prior to taking final action.
§ 235-47 Skilled trade shop.
The purpose of this provision is to allow for residents within the AG-R District who are self-employed skilled trades persons to operate a shop for fabrication of fixtures, cabinets, etc., for installation by them at their various job sites. It is recognized that operation of such shops without adequate regulations and conditions may pose adverse impacts upon neighboring residential uses.
Process. An applicant may apply to the Planning Board for a special use permit to establish a skilled trade shop in the AG-R District.
Conditions. The following conditions are intended to ensure both that the skilled trade shop is secondary to the residential use and that it is compatible with the residential character of the neighborhood:
The skilled trade shall be carried on inside the principal dwelling and/or inside a building or other structure accessory thereto.
No alteration to the exterior of the principal dwelling and/or the accessory building or structure shall be made which changes the residential character thereof.
No more than one nonresident person shall be employed in the skilled trade shop.
Not more than 25% of the floor area (with a maximum of 500 square feet) of the principal dwelling may be used for the skilled trade shop. Occupation of accessory buildings to be utilized shall not exceed 2,000 square feet.
There shall be no exterior advertising of the skilled trade shop, except for a sign no larger than four square feet for which a permit has been obtained pursuant to the provisions of § 235-39C(1).
There shall be no exterior storage of materials used or products/fixtures made in the skilled trade shop.
No skilled trade shop shall result in:
Dissemination of noise, vibration, smoke, observable gas or fumes, or other atmospheric pollutant beyond the boundaries of the immediate site of the building in which such use is conducted.
Hazard of fire, explosion, release of toxic or harmful substances (including solvents and waste products) or other physical hazard to any person, building, vegetation, or groundwater.
Radiation or interference with radio or television reception beyond the boundaries of the immediate site of the building in which such use is conducted, or the testing of material or instruments in such manner as to constitute a public nuisance.
Adequate parking shall be provided as set forth in § 235-34. Such off-street parking shall be located not less than 10 feet from any property line.
No residential lot shall contain more than one skilled trade shop. No residential lot shall contain a skilled trade shop together with a home occupation or any other nonresidential use requiring a special use permit.
The Planning Board may require as a condition of the special use permit that the applicant install and maintain a buffer strip and/or fencing between the proposed skilled trade shop and neighboring residential uses if the Board determines such condition is a reasonable mitigation factor.
§ 235-47.1 Auction houses.
[Added 2-20-2008 by L.L. No. 2-2008]
The Planning Board may approve a special use permit for an auction house in the AG/R and C Districts, provided that the following requirements are met, in addition to the standards and procedures for special use permits included in § 235-63.
The site must be located on a New York State highway that can handle the anticipated traffic volume before and after auctions.
The use as an auction house shall not be detrimental to adjacent properties when considering traffic, safety, parking, noise, light, or glare.
Outdoor lighting shall be shielded so as to prevent light from directly hitting adjacent property or any public right-of-way. The site plan shall indicate the style and location of all outdoor lighting.
There shall be no outdoor storage permitted except for during the three days before and after an advertised auction.
§ 235-48 Ponds.
The purpose of this section is to provide for the construction of ponds that are adequately designed and located so as to not pose adverse impacts upon surrounding land uses. Farm water supply, conservancy, stormwater/erosion control and fire protection or other ponds may be located within the AG, AG-R, C, I and IP Districts upon issuance of a special use permit provided the following criteria are met:
The proposed pond is located not less than 100 feet from any property line.
The proposed pond design is considered acceptable by the Genesee County Soil and Water Conservation District.
§ 235-49 Adult uses.
Purposes. The Town of Batavia has conducted a study of the potential secondary affects posed by adult businesses. This study, along with other similar studies, has shown that buildings and establishments operated as adult uses pose secondary effects that are detrimental and harmful to the health, safety, morals and general welfare of a community. In order to promote the health, safety, morals and general welfare of the residents of the Town of Batavia, this section is intended to control those secondary effects of adult businesses by restricting adult uses to nonresidential areas of the town and otherwise regulating their operation.
Definitions. As used in this section, the following terms shall have the meanings indicated:
A commercial establishment, including but not limited to an adult bookstore, adult eating or drinking establishment, adult theater, adult motel, adult massage establishment, nude model studio or other adult commercial establishment, or any combination thereof, as defined below:
ADULT BOOKSTORE:
A bookstore which has as a substantial portion (equal to or greater than 25%) of its stock-in-trade and/or floor area as hereinafter defined any one or more of the following:
Books, magazines, periodicals or other printed matter which is characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas; or
Photographs, films, motion pictures, videocassettes, slides or other visual representations which are characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.
For the purpose of determining whether a substantial portion (equal to or greater than 25%) of an establishment includes an adult bookstore, the following factors shall be considered:
For the purpose of determining whether a bookstore has a substantial portion (equal to or greater than 25%) of its stock in materials defined in Subsection (1)(a)[1] or [2] hereof, the following factors shall be considered:
The amount of stock accessible to customers as compared to the total stock accessible to customers in the establishment;
The amount of floor area and cellar space accessible to customers containing such stock; and
The amount of floor area and cellar space accessible to customers containing such stock as compared to the total floor area and cellar space accessible to customers in the establishment.
An eating or drinking establishment which regularly features any one or more of the following:
Live performances which are characterized by an emphasis upon the depiction or description of specified anatomical areas or specified sexual activities; or
Films, motion pictures, videocassettes, slides or other visual representations which are characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas; and
Employees who as part of their employment, regularly expose to patrons specified anatomical areas, and which is not customarily opened to the general public during such features because it excludes minors by reason of age.
ADULT THEATER:
A theater which regularly features one or more of the following:
Films, motion pictures, videocassettes, slides or other visual representations which are characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas; or
Live performances which are characterized by an emphasis upon the depiction or description of specified anatomical areas or specified sexual activities, and which is not customarily opened to the general public during such features because it excludes minors by reason of age.
"Adult theater" shall include commercial establishments where such materials or performances are viewed from individual enclosures.
Any establishment having a fixed place of business where massages are administered for pay, including but not limited to massage parlors, sauna baths and steam baths. This definition shall not be construed to include a hospital, nursing home or medical clinic or the office of a physician, surgeon, chiropractor, osteopath, duly licensed massage therapist, or duly licensed physical therapist, or barbershops or beauty parlors in which massages are administered only to the scalp, face, neck and shoulders. This definition shall also exclude health clubs which have facilities for physical exercise, such as tennis courts, racquetball courts or exercise rooms, and which do not receive their primary source of revenue through the administration of massages.
Any place where a person who appears in a state of nudity or displays specified anatomical areas is regularly provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any other form of consideration, other than as part of a course of instruction offered by an educational institution established pursuant to the laws of New York State.
A facility, other than an adult bookstore, adult eating or drinking establishment, adult theater, adult motel, adult massage establishment, nude model studio, commercial studio, or business or trade school, which features employees who, as part of their employment, regularly expose to patrons specified anatomical areas and which is not customarily open to the general public during such features because it excludes minors by reason of age.
A person, firm, partnership, corporation, association or legal representative, acting individually or jointly.
For the purpose of defining adult establishments:
An amount equal to or greater than 25% of the total.
Restrictions affecting adult uses. Adult uses, including but not limited to an adult bookstore, adult motion-picture theater, adult mini-motion-picture theater, and adult entertainment cabaret, shall be permitted subject to the following restrictions (all distance measurements are from respective property and/or district lines):
No such adult uses shall be within 200 feet of another existing adult use.
No such adult use shall be located within 100 feet of the boundaries of any Agricultural-Residential (AG-R), Agricultural (A), Residential (R) or Mobile Home Park (MHP) Zoning District or within 500 feet of any existing residential use located on another lot.
No such adult use shall be located within 1,000 feet of a preexisting school or church, day-care center, park, playground or community center.
No such adult use shall be located in any zoning district except the Industrial District.
Prohibition regarding public observation. No adult use shall be conducted in any manner that permits the observation of any material depicting, describing or relating to specified sexual activities or specified anatomical areas from any public way or from any property not registered as an adult use. This provision shall apply to any display, decoration, sign, show window or other opening.
§ 235-50 Driveway entrances and exits onto highways. [1]
No person, firm or corporation shall, after the effective date of this chapter, cut, construct or locate any driveway entrance or exit into a highway in the Town of Batavia without having first received written permission to do so from the appropriate Highway Department or authority having jurisdiction, namely the New York State Department of Transportation, Genesee County Highway Department, Town of Batavia Highway Department, Town of Batavia Planning Board or Town Board. Three copies of such written permission shall be submitted, one to each of the following: Town of Batavia Highway Superintendent, Town Building Inspector, and Town Clerk. If the proposed driveway is in a designated wetland, then the appropriate Department of Environmental Conservation permits shall also be required and three copies provided as above.
§ 235-51 ECHO unit.
The purpose and intent of this provision is to allow by special use permit the installation of elderly cottage housing opportunity (ECHO) units on the same lots with single-family dwelling units in the Agricultural-Residential (AG-R) District. The reasoning behind providing this type of housing option is to:
Foster and support extended families;
Permit adult children to provide small, temporary homes for their aging parents who are in need of support, while maintaining as much of the independence of the two generations as possible;
Reduce the degree to which elderly homeowners have to choose between increasing isolation in their homes and institutionalization in nursing homes;
Encourage the continued development and use of small homes specifically designed and built for elderly people which include such features as easy adaptation to handicapped accessibility, safe exit features, and fire-resistant construction;
Permit ECHO housing in a manner that protects the property values and character of neighborhoods by ensuring that the units are compatible with the neighborhood and are easily removable; and
Enable the elderly living in homes too large for their needs to move to more appropriate housing and thereby make larger homes available to house larger families.
Application process. Application for a special permit for an ECHO unit shall be made to the Building Inspector in accordance with the standards and procedures set forth in § 235-63, subject to the following additional provisions:
These special use permits do not run with the land inasmuch as they represent the nonpermanent (temporary) placement of an ECHO unit for a period of time which is determined by the actual occupancy of the ECHO unit and the principal use (single-family dwelling).
The applicant must certify that he or she understands that the permit is issued solely for the use of the named occupants; has made plans for the removal of the unit; agrees to provide the annual recertification required by this section; and recognizes the possible sanctions for failure to promptly remove the ECHO unit upon termination or revocation of the special use permit.
Failure to remain in compliance with the requirements set forth in this section may result in revocation of the special use permit.
Occupancy.
At the time the special permit is issued, at least one intended occupant of the ECHO unit must be at least 60 years of age, and any other occupant must be at least 55 years of age. Subsequently, if the occupant who is 60 no longer occupies the ECHO unit, and all other conditions continue to apply, the special permit may be continued for the other occupant, even if the person is less than 60 years of age.
At least one occupant of the principal dwelling and at least one occupant of the ECHO unit must be related by blood, marriage, or adoption.
In no case shall there be more than two occupants of an ECHO unit.
The special use permit shall be issued to the owner of the principal dwelling and lot and shall specify the occupants of the ECHO unit by name.
Construction and installation. The unit shall be constructed and installed in accordance with Chapter B of the New York State Uniform Fire Prevention and Building Code, the New York State Energy Code and any other applicable laws, ordinances and/or regulations of the Town of Batavia. No additional buildings or structures shall be allowed on a lot which would hinder the removal of an ECHO unit. The applicant shall provide the necessary documentation from the Genesee County Health Department that the water supply and wastewater treatment systems are adequate for both the principal dwelling and ECHO unit.
Size of unit. The minimum floor area of an ECHO unit shall be 300 square feet, the maximum floor area 1,000 square feet, and the maximum height 16 feet or one story.
Placement of an ECHO unit. The ECHO unit shall only be placed in a side or rear yard and shall comply with all minimum yard setback and maximum lot coverage requirements (see Zoning Schedule A).[1]
[1]
Editor's Note: Zoning Schedule A is included at the end of this chapter.
Lot size. An ECHO unit shall only be installed on a lot which meets the current minimum lot size for the AG-R District; installation on undersized preexisting lots shall not be allowed (see Zoning Schedule A).
Parking. In addition to the parking required for the principal dwelling, one parking space per additional vehicle (minimum of one additional space) shall be required together with the provision of a turnaround as required in § 235-34.
Number of dwelling units per lot. ECHO units shall only be placed on a lot with a single-family dwelling, limited to one ECHO unit per lot.
Removal. The ECHO unit shall be removed within 90 days of the date its occupancy ceases to comply with the requirements of this section [i.e., death or permanent change of residence of the original occupant(s) of the ECHO unit]. Once the ECHO unit is removed, the site shall be restored so that no visible evidence remains of the ECHO unit and its accessory elements. If the ECHO unit has not been removed by the end of this ninety-day period, in addition to the existing penalties of this chapter, additional actions may be taken to ensure removal, including removal and salvage by the town with a lien imposed to defray any costs incurred. The Planning Board, upon a showing of extraordinary circumstances making removal of the ECHO unit impossible during the ninety-day grace period, may grant one extension of up to 90 days for removal of the ECHO unit.
Annual recertification. Each year, two weeks prior to the anniversary date of the original issuance of a special use permit for an ECHO unit, the property owner shall provide certification to the Building Inspector that all the terms, conditions and requirements associated with said special use permit are being fully complied with.
§ 235-52 Commercial communication towers.
No commercial communication tower or antenna(s) shall hereafter be used, erected, moved, reconstructed, changed or altered unless in conformity with these regulations.
Shared use of existing towers and/or structures. At all times, shared use of existing towers and/or structures (i.e., a water tower, building, etc.) shall be preferred to the construction of new commercial communication towers. An applicant shall be required to present an adequate report inventorying existing towers within reasonable distance of the proposed site and outlining opportunities for shared use of existing facilities as an alternative to a proposed new commercial communication tower.
The installation of a commercial communications antenna(s) on an existing structure located within the AG, AG-R and C Districts shall be considered a permitted use not subject to site plan review, provided the following criteria are met:
The existing structure is not increased in height or otherwise modified so as to change its visual appearance;
The antenna(s) does not extend above such structure more than 10 feet; and
The applicant provides the necessary documentation to the Building Inspector to verify the existing structure and proposed antenna(s) installation would comply with the New York State Uniform Fire Prevention and Building Code.
An applicant proposing to share use of an existing tower and/or structure shall be required to document intent from an existing tower/structure owner to allow shared use.
New or altered towers and/or structures.
The Planning Board may, at its sole discretion, consider a new or altered (including towers or structures which are modified, reconstructed or changed) commercial communication tower/structure where the applicant demonstrates to the satisfaction of the Planning Board that shared usage of an existing tower/structure is impractical. The applicant shall be required to submit a report demonstrating good faith efforts to secure shared use from existing towers/structures as well as documentation of the physical and/or financial reasons why shared usage is not practical. Written requests and responses for shared use shall be provided.
The applicant shall be required to submit a site plan in accordance with § 235-63 (site plan review provisions need to be added) for all commercial communication towers that are proposed to be erected, moved, reconstructed, changed or altered. Site plan review will also be required in those instances when antennas are being added to existing structures not in compliance with the criteria set forth in Subsection A of this section. In addition to § 235-63, the site plan shall show all existing and proposed structures and improvements, including roads, buildings, tower(s), guy wire anchors, parking and landscaping, and shall include grading plans for new facilities and roads.
Supporting documentation. The Planning Board shall require that the site plan include a completed visual environmental assessment form (Visual EAF - SEQR) and documentation on the proposed intent and capacity of use as well as a justification for the height of any tower or antenna and justification for any required clearing. The applicant must provide a coverage/interference analysis and capacity analysis that location of the antennas as proposed is necessary to meet the frequency reuse and spacing needs of the cellular system and to provide adequate portable cellular telephone coverage and capacity to areas which cannot be adequately served by locating the antennas in a less restrictive district. The Planning Board may require submittal of a more detailed visual analysis based on the results of the Visual EAF in addressing this subsection and Subsections J and K of this section.
Shared usage of site with new tower. Where shared usage of an existing tower/structure is found to be impractical, as determined by the sole discretion of the Planning Board, the applicant shall investigate shared usage of an existing tower/structure site for its ability to accommodate a new tower and accessory uses. Documentation and conditions shall be in accordance with Subsection B(1) and (2) of this section. Any new commercial communication tower approved for an existing tower/structure site shall be subject to the standards of Subsections F through N of this section.
New tower at a new location. The Planning Board may consider a new commercial communication tower on a site not previously developed with an existing tower/structure when the applicant demonstrates that shared usage of an existing tower site is impractical, as determined by the sole discretion of the Planning Board, and submits a report as described in Subsection B of this section.
Future shared usage of new towers. The applicant must design a proposed commercial communication tower to accommodate future demand for commercial broadcasting and reception facilities. This requirement may be waived, in the sole discretion of the Planning Board, provided that the applicant demonstrates that provision of future shared usage of the facility is not feasible and is an unnecessary burden, based upon:
The number of Federal Communications Commission (FCC) licenses foreseeably available for the area;
The kind of tower site and structure proposed;
The number of existing and potential licenses without tower spaces;
Available spaces on existing and approved towers; and
Potential adverse visual impact by a tower designed for shared usage.
Setbacks for new towers. All proposed commercial communication towers and accessory structures shall be set back from abutting residential parcels, public property or street lines a distance sufficient to contain on site substantially all icefall or debris from tower failure and preserve the privacy of adjoining residential properties.
All commercial communication tower bases must be located at a minimum setback from any property line at a distance at least equal to the tower height, or the distance between the tower base and guy wire anchors, or the minimum setback of the underlying zoning district, or a minimum setback at a distance which shall be established in the sole discretion of the Planning Board based on the unique characteristics of the site, whichever of the foregoing is greater. The minimum setback requirement of this subsection may be increased at the discretion of the Planning Board or it may be decreased in those instances when the applicant has submitted plans for a tower designed in such a manner as to collapse within a smaller area. Such tower design and collapse zone must be acceptable to the Town Engineer and the Planning Board.
Accessory structures must comply with the minimum setback requirements in the underlying district.
Visual impact assessment. The Planning Board shall require the applicant to undertake a visual impact assessment of any proposed new towers or any proposed modifications of an existing tower that will increase the height of the existing tower. Construction of a new commercial communication tower or modification of an existing tower shall be subject to the relevant guidelines and criteria below that are determined, by the sole discretion of the Planning Board, at the presubmission conference to be appropriate:
Assessment of before and after views from key viewpoints both inside and outside of the town, including from state highways and other major roads, from state and local parks and other public lands, from any privately owned preserves and historic sites normally open to the public, and from any other location where the site is visible to a large number of visitors or travelers.
Assessment of visual impact of the tower base, guy wires, accessory buildings and overhead utility lines from abutting properties and streets.
New tower design. Alternate designs shall be considered for new towers, including lattice and single pole structures. Plans should show that the owner of the commercial communication tower has agreed to permit other persons to attach other communication apparatus which does not interfere with the primary purposes of the commercial communication tower, provided that such other persons agree to negotiate a reasonable compensation to the owner from such liability as may result from such attachment. The design of a proposed new tower shall comply with the following:
Unless specifically required by other regulations, all towers shall have a neutral, earth tone, sky tone or similar finish that will minimize the degree of visual impact that the new tower may have. Artificial lighting, including strobes, beacons and other hazard-avoidance lighting, shall be limited to that required by the Federal Aviation Administration (FAA) or other governmental agency, recognized safety guidelines and the Planning Board.
Any new tower shall be designed and constructed to have the minimum height and carrying capacity needed to provide future shared usage (co-locating of a minimum of two additional antennas).
The Planning Board may request a review of the application by the Town Engineer, or other engineer selected by the Planning Board, for evaluation of need for and design of any new tower. The costs associated for such review shall be borne by the applicant.
Accessory facilities shall maximize use of building materials, colors and textures designed to blend with the natural surroundings.
No portion of a tower may be used for signs or advertising purposes, including company name, banners, streamers, etc.
The applicant shall provide documentation acceptable to the Planning Board that certifies the operation of the proposed commercial communication tower facility will not interfere with usual and customary transmission or reception of radio, television or other communication equipment.
Space on communication towers shall be made available for public safety purposes (i.e., Genesee County Public Safety Radio System) at no cost to public safety agencies.
Existing vegetation. Existing on-site vegetation shall be preserved to the maximum extent possible, and no cutting of trees exceeding four inches in diameter (measured at a height of four feet off the ground) shall take place prior to approval of the special permit. Clear cutting of all trees in a single contiguous area exceeding 20,000 square feet shall be prohibited.
Screening. Deciduous or evergreen tree plantings may be required to screen portions of the tower and accessory structures from nearby residential property as well as from public sites known to include important views or vistas. Where the site abuts residential or public property, including streets, the following vegetative screening shall be required: for all commercial communication towers, at least one row of native evergreen shrubs or trees capable of forming a continuous hedge at least 10 feet in height within two years of planting shall be provided to effectively screen the tower base and accessory facilities. In the case of poor soil conditions, planting may be required on soil berms to assure plant survival. Plant height in these cases shall include the height of any berm.
Access. Adequate emergency and service access shall be provided. Maximum use of existing roads, public or private, shall be made. Road construction shall, at all times, minimize grounds disturbance and vegetation cutting to within the toe of fill, the top of cuts, or no more than 10 feet beyond the edge of any pavement. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion potential.
Parking. Parking shall be provided in accordance with § 235-34. No parking space shall be located in any required yard.
Fencing. Sites of proposed new commercial communication towers and sites where modifications to existing towers are proposed shall be adequately enclosed by a fence eight feet in height from finished grade, unless the applicant demonstrates to the sole discretion of the Planning Board that such measures are unnecessary to ensure the security of the facility. Such security fencing shall surround the tower base as well as each guy anchor.
Maintenance and/or performance bond. Prior to approval of any application, the Planning Board, in its sole discretion, may require the applicant and/or owner to post and file with the Town Clerk a maintenance and/or performance bond or other form of security acceptable to the Town Attorney in an amount sufficient to cover the installation, maintenance and/or construction of said tower during its lifetime and provide for its removal. The amount required shall be determined in the sole discretion of the Planning Board, based upon the unique characteristics of the tower and site. In furtherance of the foregoing, the applicant and/or owner shall cooperate with the Planning Board in supplying all necessary construction and maintenance data to the Board prior to approval of any application to accomplish the foregoing.
Removal of obsolete/unused facilities. Approval of a new commercial communication tower facility shall be conditioned upon the applicant's agreement to remove such facility once it is no longer used. Removal of such obsolete and/or unused commercial communication tower facilities shall take place within 12 months of cessation of use. The applicant shall submit an executed removal agreement with his application to ensure compliance with this requirement.
§ 235-53 Landscaping contractor's yard.
The purpose of this provision is to allow for operation of storage yards for landscaping contractors within the AG-R District. It is recognized that operation of such business is somewhat similar in operation to agricultural uses and that without adequate regulations and conditions it may pose adverse impacts upon neighboring residential uses.
Process. An applicant may apply to the Planning Board for a special use permit to establish a landscaping contractor's yard in an AG-R District.
Conditions. The following conditions are intended to ensure the landscaping contractor's yard is compatible with the agricultural and residential character of the AG-R District:
The landscaping contractor's yard shall comply with all the minimum required yard setbacks for the AG-R District by maintaining such minimum yard setback requirements as buffer areas in which no storage of equipment, vehicles, materials (rock, stone, bricks, fencing, fixtures, etc.), tools and other items related to his/her business is allowed.
No direct retail sales shall be permitted on site.
There shall be no exterior advertising of the landscaping contractor's yard, except for a sign no larger than four square feet for which a permit has been obtained pursuant to the provisions of § 235-39C(1).
The Planning Board, through site plan review, shall determine the location and extent of storage of equipment, vehicles, materials (rock, stone, bricks, fencing, fixtures, etc.), tools and other items related to the business.
No landscaping contractor's yard shall result in:
Dissemination of noise, vibration, smoke, observable gas or fumes, or other atmospheric pollutant beyond the boundaries of the immediate site of the building in which such use is conducted.
Hazard of fire, explosion, release of toxic or harmful substances (including solvents and waste products) or other physical hazard to any person, building, vegetation, or groundwater.
Adequate parking shall be provided as set forth in § 235-34. Such off-street parking shall be located not less than 10 feet from any property line.
The Planning Board may require as a condition of the special use permit that the applicant install and maintain a buffer strip and/or fencing between the proposed landscaping contractor's yard and neighboring residential uses if the Board determines such condition is a reasonable mitigation factor.
§ 235-53.1 Solar energy systems.
[Added 11-18-2015 by L.L. No. 6-2015; amended 4-20-2022 by L.L. No. 2-2022]
Statement of purpose.
This solar energy section is adopted to advance and protect the public health, safety, and welfare of the Town of Batavia by creating regulations for the installation and use of solar energy generating systems and equipment with the following objectives:
To take advantage of a safe, abundant, renewable and nonpolluting energy resource;
To decrease the cost of electricity to the owners of residential and commercial properties; including single-family houses;
To increase employment and business development in the Town, to the extent reasonably practical, by furthering the installation of solar energy systems;
To mitigate the impacts of solar energy systems on environmental resources such as important agricultural lands, forests, wildlife and other protected resources;
To facilitate the location of the larger solar energy systems in a way that best fits into the surrounding neighborhood and the adjoining uses.
Definitions.
The following definitions shall apply to this section and supersede any conflicting definitions found elsewhere in the Code:
A combination of solar panels and solar energy equipment integrated into any building envelope system such as vertical facades, semitransparent skylight systems, roofing materials, or shading over windows, which produce electricity for on-site consumption.
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. Farmland of statewide importance may include tracts of land that have been designated for agriculture by state law. The Town of Batavia Farmland Protection Plan shall be reviewed.
The unoccupied, open space within and extending the full width of the lot from the front lot line to the front line of the principal building which is nearest to such front lot line.
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.
A solar energy system that is anchored to the ground via a pole or other mounting system, detached from any other structure, that generates electricity for on-site or off-site consumption.
Land occupied or which may be occupied by a building and its accessory uses, together with required open spaces, having not less than the minimum area, width and depth required for a lot in the district in which such land is situated, and having frontage on a street or other means of access as may be determined by the Planning Board to be adequate as a condition for issuance of a building permit. Any land included in a public road, street or highway right-of-way shall not be considered part of the lot for zoning purposes.
The total area within property lines. Any land included in a public road, street or highway right-of-way shall not be included in calculating lot area.
The mean horizontal distance from the street right-of-way line of the lot to its opposite rear line measured at right angles to the street right-of-way line.
The horizontal distance between the side lot lines measured at the street right-of-way line.
The property lines bounding a lot as defined herein.
In the case of a lot abutting upon only one street, the line separating the lot from the street right-of-way. In the case of a lot abutting more than one street, each street line shall be considered a front lot line.
The lot line which is generally opposite the front lot line. If the rear lot line is less than 10 feet in length or if the lot comes to a point at the rear, the rear lot line shall be deemed to be a line parallel to the front line, not less than 10 feet long, lying wholly within the lot and farthest from the front lot line.
The property line or lines extending from the front lot line to the rear lot line except in the case of corner lots which have no rear lot line.
The horizontal distance between the side lot lines measured at right angles to the lot depth.
A lot located at the junction of and fronting on two or more intersecting streets. (Also see the definition of "lot line, front.")
Native wildflowers, forbs, and grasses that serve as habitat, forage, and migratory way stations for pollinators and shall not include any prohibited or regulated invasive species as determined by the New York State Department of Environmental Conservation.
Any property that is not a participating property.
A host property or any real property that is the subject of an agreement between the property owner and a solar energy system owner (or affiliate), regardless of whether any part of a solar energy system is constructed on said property. (This agreement status will impact certain requirements of this Code, specifically setbacks.)
Bees, birds, bats, and other insects or wildlife that pollinate flowering plants and includes both wild and managed insects.
Land, designated as "prime farmland" in the U.S. Department of Agriculture Natural Resources Conservation Service (NRCS)'s Soil Survey Geographic (SSURGO) Database on Web Soil Survey, that has the best combination of physical and chemical characteristics for producing food, feed, forage, fiber, and oilseed crops and is also available for these land uses. In determining prime farmland, consideration must also be given to the Town of Batavia's Farmland Protection Plan.
A solar energy system located on the roof of any legally permitted building or structure that produces electricity for on-site or off-site consumption.
The distance from a front, side or rear lot line or structure to the fence that surrounds the solar installation, or any equipment not located within the fence line.
Space open to the sun and clear of overhangs or shade so as to permit the use of active and/or passive solar energy systems on individual properties.
Electrical material, hardware, inverters, conduit, storage devices, or other electrical and photovoltaic equipment associated with the production of electricity.
The components and subsystems required to convert solar energy into electric energy suitable for use. The term includes, but is not limited to, solar panels and solar energy equipment. The area of a solar energy system includes all the land inside the perimeter of the solar energy system, which extends to any interconnection equipment. A solar energy system is classified as a Tier 1, Tier 2, Tier 3 or Tier 4 solar energy system as follows:
Tier 2 solar energy systems include ground-mounted solar energy systems (that are accessory uses/structures) with a total surface area of all solar panels on the lot of up to 4,000 square feet and that generate up to 110% of the electricity consumed on the site over the previous 12 months (information on consumption to be provided at time of application).
Tier 3 solar energy systems are systems that are not included in the list for Tier 1 and Tier 2 solar energy systems and do not exceed 30 acres in size (as defined by the fenced-in area). They can be primary or accessory uses/structures.
Tier 4 solar energy systems are systems that are not included in the list of Tier 1, Tier 2, and Tier 3 systems.
An area of land used primarily for the purpose of producing electricity by means of a solar energy system.
A photovoltaic device capable of collecting and converting solar energy into electricity.
See "solar access."
A device that stores energy and makes it available in an electrical form.
A residential dwelling, commercial or industrial building (habitable buildings). It does not include such things as garages, sheds, barns, etc.
The following definitions are acronyms used in this solar section.
Per- and polyfluoroalkyl substances (PFASs) are synthetic organofluorine chemical compounds that have multiple fluorine atoms attached to an alkyl chain. As such, they contain at least one perfluoroalkyl moiety -Cn F2n-. According to the Organization for Economic Cooperation and Development (OECD), PFASs are defined as fluorinated substances that contain at least one fully fluorinated methyl or methylene carbon atom (without any H/Cl/Br/I atom attached to it), i.e., with a few noted exceptions, any chemical with at least a perfluorinated methyl group (-CF3) or a perfluorinated methylene group (-CF2-) is a PFAS.
Perfluorooctanesulfonic acid (PFOS) (conjugate base perfluorooctanesulfonate) is an anthropogenic (human-made) fluorosurfactant, now regarded as a global pollutant. PFOS was the key ingredient in Scotchgard™, a fabric protector made by 3M, and related stain repellents. In many contexts, PFOS refers to the parent sulfonic acid and its various salts of perfluorooctanesulfonate. These are all colorless or white, water-soluble solids. Although of low acute toxicity, PFOS has attracted much attention for its pervasiveness and environmental impact.
Perfluorooctanoic acid (PFOA) (conjugate base perfluorooctanoate), also known colloquially as "C8," is a perfluorinated carboxylic acid produced and used worldwide as an industrial surfactant in chemical processes and as a material feedstock. PFOA is considered a surfactant, or fluorosurfactant, due to its chemical structure, which consists of a perfluorinated, n-octyl "tail group" and a carboxylate "head group." The head group can be described as hydrophilic while the fluorocarbon tail is both hydrophobic and lipophobic. The tail group is inert and does not interact strongly with polar or nonpolar chemical moieties; the head group is reactive and interacts strongly with polar groups, specifically water.
GenX™ is a Chemours trademark name for a synthetic, short-chain organofluorine chemical compound, the ammonium salt of hexafluoropropylene oxide dimer acid (HFPO-DA) fluoride. It can also be used more informally to refer to the group of related fluorochemicals that are used to produce GenX.
Applicability.
The requirements of this section shall apply to all solar energy systems permitted, installed, or modified in the Town of Batavia after the effective date of this section, excluding general maintenance and repair.
Solar energy systems constructed or installed prior to the effective date of this section shall not be required to meet the requirements of this section.
Modifications to an existing solar energy system that increase the solar energy system area by more than 5% of the original area of the solar energy system (exclusive of moving any fencing) shall be subject to this section.
All solar energy systems 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 ("Building Code"), the NYS Energy Conservation Code ("Energy Code"), the NYS Property Maintenance Code and the Code of the Town of Batavia.
General requirements.
A building permit shall be required for installation of all solar energy systems.
It is the developer's responsibility to ensure solar skyspace/access.
Issuance of permits and approvals by the Planning Board shall include review pursuant to the State Environmental Quality Review Act (SEQRA).[2]
[2]
Editor's Note: See Environmental Conservation Law § 8-0101 et seq.
This article shall take precedence over any inconsistent provision of the Zoning Law of the Town of Batavia.
Permitting requirements for Tier 1 solar energy systems. All Tier 1 solar energy systems shall be permitted in all zoning districts and shall be exempt from site plan review under the local Zoning Code or other land use regulation, subject to the following conditions for each type of solar energy system:
Roof-mounted solar energy systems.
Roof-mounted solar energy systems shall incorporate, when feasible, the following design requirements:
Solar panels on pitched roofs shall be mounted with a maximum distance of eight inches between the roof surface and the highest edge of the system.
Solar panels on pitched roofs shall be installed parallel to the roof surface on which they are mounted or attached.
Solar panels on pitched roofs shall not extend higher than the highest point of the roof surface on which they are mounted or attached.
Solar panels on flat roofs shall not extend above the top of the surrounding parapet, or more than 24 inches above the flat surface of the roof, whichever is higher.
Glare. All Solar panels shall have antireflective coating(s). These coatings shall not contain per- polyflouoroalkyl (PFAS) substances (including PFOA, PFOS and GenX chemicals) or other hazardous substances (documentation of such to be provided with the application).
Height. Roof-mounted solar energy systems shall be subject to the maximum height regulations specified for principal and accessory buildings within the underlying zoning district.
Building-integrated solar energy systems shall be shown on the plans submitted for the building permit application for the building containing the system.
Permitting requirements for Tier 2 solar energy systems. All Tier 2 solar energy systems shall be permitted in all zoning districts as accessory structures and shall be exempt from site plan review under the local Zoning Code or other land use regulations, subject to the following conditions:
Glare. All solar panels shall have antireflective coating(s). These coatings shall not contain per- polyflouoroalkyl (PFAS) substances (including PFOA, PFOS and GenX chemicals) or other hazardous substances (documentation of such to be provided with the application).
Setbacks. Tier 2 solar energy systems shall be subject to the setback regulations specified for the accessory structures within the underlying zoning district (but in no case should they be within 20 feet of a property line). All ground-mounted solar energy systems shall only be installed in the side or rear yards in residential districts.
Height. Tier 2 solar energy systems shall be subject to the height limitations specified for accessory structures within the underlying zoning district (but in no case should be greater than 15 feet in height).
Screening and visibility.
All Tier 2 solar energy systems shall have views minimized from adjacent properties to the extent reasonably practicable as provided by the Town of Batavia Planning Board.
Solar energy equipment shall be located in a manner to avoid and/or minimize blockage of views from surrounding properties and shading of property to the north, while still providing adequate solar access.
Lot size. Tier 2 solar energy systems shall comply with the existing lot size requirement specified for accessory structures within the underlying zoning district.
Permitting requirements for Tier 3 solar energy systems. All Tier 3 solar energy systems are permitted within the Agricultural Residential Zoning District, subject to both the special use process and site plan requirements set forth in this section and/or any other applicable requirements of the existing Zoning Ordinance.
These Tier 3 units have the following restrictions. Within the area denoted as the Genesee County Smart Growth areas, the total amount (measured as the area leased or purchased) of solar arrays (Tier 3 and Tier 4) to be installed in this area shall be limited to 15% of the total land area of the Smart Growth area within the Town. (The Town will monitor this amount and provide any applicant with the existing quantity of lands dedicated to solar within the Smart Growth boundary.) If a solar energy system is proposed to be installed within the Ag Production Zone, as illustrated in the Town's Comprehensive Plan (Map 5), the applicant must limit impacts to prime or statewide important farming soils as detailed in later sections of this section.
Applications for the installation of Tier 3 solar energy systems shall be:
Application. Applications for special use permits shall be made, in writing, on the appropriate form obtained from the Building Inspector. Four hard copies of each application and an electronic copy, including site plan, shall be submitted to the Building Inspector, who shall review the application for completeness prior to forwarding it to the Town Clerk and the Planning Board. One copy shall be retained by the Building Inspector. Applicants will be advised of the completeness of their application or any deficiencies that must be addressed prior to substantive review.
Notice and public hearing. The Planning Board shall hold a public hearing as part of the special use permit process. The public hearing shall be held at a time fixed within 62 days from the date the application for a special use permit is received by the Board, and public notice thereof shall be published in a newspaper of general circulation in the Town at least five days prior to the date of the hearing. At least 10 days before such hearing, the Planning Board shall mail a notice of the hearing to the applicant and also send, by regular mail, a copy of the notice of hearing to all Town of Batavia property owners whose property(ies) is located within 250 feet of the property which is the subject of the application when the property involved is located in an R District or within 500 feet when the involved property is located in any other district. The Town also requires signage to be placed on the subject parcel notifying residents of the area that the site is subject to an action before the Town. All signage shall be installed in accordance with the Town of Batavia Sign Code.[3] When necessary, under § 239 of the General Municipal Law, the Planning Board shall forward the site plan to the Genesee County Planning Board for its review prior to taking any final action.
Upon closing of the public hearing, the Planning Board 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 does not start to run until the SEQR process is completed and may be extended upon consent by both the Planning Board and applicant.
Underground requirements. 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. The applicant shall provide copies of the written notification to the utility for proposed interconnection.
Vehicular paths. Vehicular paths within the site shall be designed to minimize the extent of impervious materials and soil compaction. These access roads shall be designed as "limited use pervious access" roads in accordance with NYSDEC standards and designed to handle appropriate loads (emergency equipment) and will meet requirements of the Town's emergency service providers.
Signage.
No signage or graphic content shall be displayed on the solar energy systems except the manufacturer's name, equipment specification information, safety information, and twenty-four-hour emergency contact information. Said information shall be depicted within an area of no more than eight square feet.
As required by the National Electrical Code (NEC), disconnect and other emergency shutoff information shall be clearly displayed on a light-reflective surface. A clearly visible warning sign concerning voltage shall be placed at the base of all pad-mounted transformers and substations.
Glare. All solar panels shall have antireflective coating(s). These coatings shall not contain per- polyflouoroalkyl (PFAS) substances (including PFOA, PFOS and GenX chemicals) or other hazardous substances (documentation of such to be provided with the application).
Lighting. Lighting of the solar energy systems shall be limited to that minimally required for safety and operational purposes and shall be reasonably shielded and downcast from abutting properties.
Tree cutting. Removal of existing trees larger than six inches in diameter should be minimized to the extent possible, as determined by the Planning Board. Clearing limits shall be clearly shown on the site plan, indicating where trees shall be removed.
Screening and landscaping. A Tier 3 solar energy system shall be screened from adjoining uses and any roadway. See Subsection G(15) for specific requirements.
Decommissioning.
Solar energy systems that have been abandoned and/or not producing electricity for a period of one year shall be removed at the owner's and/or operator's expense, which, at the owner's option, may come from any security made with the Town as set forth in this Code.
A decommissioning plan is required to ensure the proper removal of a large-scale or utility-scale solar energy system. The decommissioning plan is to be submitted as part of the special use permit application to the Building Inspector for approval and must specify that after the large-scale or utility-scale solar energy system is no longer in use (as determined by the owner/operator or the Building Inspector per this section), it shall be removed by the applicant or any subsequent owner. The decommissioning plan shall identify the anticipated life of the project. The plan shall demonstrate how the removal of all infrastructure and restoration shall be conducted to return the parcel to its original state prior to construction. (For projects located on agricultural properties, the site shall be restored in accordance with NYS Department of Agriculture and Markets — NYSDAM.) The plan shall also include an expected time line for execution and a cost estimate for decommissioning prepared by a professional engineer or qualified contractor (and approved by the Town Engineer). Cost estimates shall take inflation into consideration and be revised every five years during operation of the system. (Recycle and salvage value shall be excluded in these estimates as they are unpredictable in nature.) Removal of the large-scale or utility-scale solar energy system must be completed in accordance with the approved decommissioning plan and the standards provided as follows:
All structures and foundations associated with the large-scale or utility-scale solar energy systems shall be removed.
All disturbed ground surfaces shall be restored to original conditions, including topsoil and seeding as necessary.
All electrical systems shall be properly disconnected, and all cables and wiring buried shall be removed.
Prior to the conclusion of the special use permit process, execution of a decommissioning agreement after approval by the Town Attorney.
Security.
The deposit, executions, or filing with the Town Clerk of cash, bond, or other form of security acceptable to the Town Attorney shall be in an amount sufficient to ensure the good faith performance of the terms and conditions of the permit issued pursuant hereto and to provide for the removal and restorations of the site subsequent to removal. The amount of the bond or security shall be 125% of the cost of removal of the Tier 3 solar energy system and restoration of the property with an escalator of 2% annually for the life of the solar energy system (except when the estimate is updated in each fifth year). The decommissioning amount shall not be reduced by the amount of the estimated salvage value of the solar energy system.
In the event of default upon performance of such conditions, after proper notice and expiration of any cure periods, the cash deposit, bond, or security shall be forfeited to the Town, which shall be entitled to maintain an action thereon. The cash deposit, bond, or security shall remain in full force and effect until restoration of the property as set forth in the decommissioning plan is completed.
In the event of default or abandonment of the solar energy system, the system shall be decommissioned as set forth in this section.
All decommissioning agreements and bonds shall remain consistent with one another and in accordance with the Town decommissioning standards.
No later than 30 days before the expiration date of any required bonds: 1) the developer shall notify the Town Building Department about the expiration date and provide a copy of the new proposed bond to this Department, and 2) the developer shall require the bonding company to directly provide to the Town Building Department this thirty-day prior notice of expiration, as well as direct notice of any early bond termination.
Noise. All solar projects shall not result in any adverse noise impacts on any surrounding homes or other sensitive receptors (use of NYSDEC regulations concerning noise). Specifically, the project must be shown to not generate noise at 45 dBA or above at any nonparticipating property line. A frequency study may be required to analyze any interference effects.
Hazardous materials. The Tier 3 or 4 project components shall not contain any hazardous materials that could contaminate soils or the air by their release. (Units shall not contain cadmium or other hazardous substances, such as PFAS.) Specific material data information/specifications (SDS/MSDS sheets) shall be submitted on all components of the project. The applicant must ensure that no harmful chemicals will be leaked into the soils over the life of the project. For certain components of the project, information on spill containment systems will need to be provided. This required information shall be reviewed by the Planning Board, their consultants and the Fire Department.
Airport impacts (encroachment issues). All Tier 3 or 4 solar energy projects must complete a study to be submitted to the local airport (when requested by the Town Planning Board) that discusses the following:
Distance from installation.
Location relative to approach/departure and flight patterns associated with the airport.
Glare impact on airport-sensitive receptors. Analysis should include a knowledge of sun position, observer location, and the solar module/array characteristics (e.g., tilt, azimuth or orientation, location, extent and if tracking those parameters for the entire path of the moving panels). Note: Though not required by the FAA, it is strongly encouraged to utilize the Solar Glare Hazard Analysis Tool (SGHAT) to predict potential glare with assessed results relative to the FAA's policy and ocular hazard standard (also adopted by the U.S. Department of Defense DoD) under Instruction (DODI) 4165.57 and implemented by US Air Force AFI 32-7063.
Any additional lighting of the field to include anticollision.
Stormwater runoff which may affect the airport or the tributaries transitioning through the airport or the creation of storm ponds which would attract wildlife and waterfowl.
Possible changes to wildlife habitat or migratory patterns that will affect the aircraft flight path.
Site plan application. For any solar energy system requiring a special use permit, site plan approval shall be required. Any site plan application shall include the following information:
Property lines and physical features, including roads (ingress and egress), for the project site.
Size and location of panels (setbacks to property lines and adjoining residential structures).
Nature of land use on the existing property, adjacent properties, nearby properties (as directed by the Town) and any solar energy systems in or proposed in the surrounding area.
Existing conditions, including topography, vegetation, structures, etc.
Proposed changes to the landscape of the site, grading, vegetation clearing and planting, exterior lighting, and screening vegetation or structures.
Proposed fencing (required) and type (fitting nature of the area and National Electrical Code (NEC) requirements.
A one- or three-line electrical diagram detailing the solar energy system layout, solar collector installation, associated components, and electrical interconnection methods with all National Electrical Code compliant disconnects and overcurrent devices.
A preliminary equipment specification sheet that documents all proposed solar panels, significant components, mounting systems, and inverters that are to be installed. A final equipment specification sheet shall be submitted prior to the issuance of a building permit.
Glare and reflectivity information.
Name, address, and contact information of proposed or potential system installer and the owner and/or operator of the solar energy system. Such information of the final system installer shall be submitted prior to the issuance of building permit.
Name, address, phone number, and signature of the project applicant, as well as all the property owners, demonstrating their consent to the application and the use of the property for the solar energy system.
Zoning district designation for the parcel(s) of land comprising the project site.
Property operation and maintenance plan. Such plan shall describe continuing photovoltaic maintenance and property upkeep, such as mowing (describe frequency of mowing and any impacts to pollinator species or bee colonies) and trimming (or other methodologies), maintenance of access drives, maintenance of ditches or other waterways through the site (potential emergency access easement provided to the Town), and maintenance of the plantings for the required screening. This operation and maintenance plan shall reflect all lands that are being leased or owned by the applicant. The applicant shall use the guidelines set forth by the Genesee County Soil and Conservation Department for all plantings below a solar farm as requested by the Town of Batavia Planning Board.
Fire safety plans shall be reviewed by the Building Department and shall meet all applicable NYS Uniform Codes.
Erosion and sediment control and stormwater management plans prepared to New York State Department of Environmental Conservation standards, if applicable, and to such standards as may be established by the Planning Board and Town Engineering office.
Other information requested by the Planning Board.
All engineering documents must be signed and sealed by a New York State (NYS) licensed professional engineer or NYS registered architect.
Special use permit standards.
Lot size. The property on which the Tier 3 solar energy system is placed shall be on a lot of a size that allows for the project to meet all setback and other requirements of this section.
Setbacks. The Tier 3 solar energy systems shall meet the following setback requirements:
Be set back on all sides and rear from any nonparticipating property line by 75 feet.
Be set back from any participating property line by 20 feet.
Be set back from any adjoining, participating property existing structure by 30 feet.
Be set back from any adjoining, nonparticipating structure by 200 feet.
Be set back from front of property line by 200 feet.
Height. The Tier 3 solar energy systems shall be limited in height to 15 feet.
Lot coverage.
The following components of a Tier 3 solar energy system shall be used in the calculations for lot coverage requirements within the fenced-in areas:
Foundation systems, typically consisting of driven piles or monopoles or helical screws with or without small concrete collars.
All mechanical equipment of the solar energy system, including any pad-mounted structure for batteries, switchboard, transformers, or storage cells.
Paved access roads servicing the solar energy system.
Lot coverage of the solar energy system, as defined above, shall not exceed 50% of the total lot size.
Fencing requirements. All mechanical equipment, panels, and structures shall be enclosed by a seven-foot-high fence, as required by NEC, with a self-locking gate to prevent unauthorized access. Design of the fencing shall fit into the area in which the project is proposed. In some cases, accommodations for animal movement will be necessary.
Screening and visibility.
Solar energy systems shall have views minimized from adjacent properties using architectural features, earthen berms, landscaping, or other screening methods that will harmonize with the character of the property and surrounding area.
Solar energy systems shall be required to complete the following when directed by the Town of Batavia Planning Board.
Conduct a visual assessment of the visual impacts of the solar energy system on public roadways and adjacent properties. This analysis must consider conditions at day one of operation and when the landscaping has matured. At a minimum, a line-of-sight profile analysis shall be provided, but photo simulations are required for all areas that will have a view of the project site. Depending upon the scope and potential significance of the visual impacts, additional impact analyses, including, for example, a digital viewshed report, may be required to be submitted by the applicant. The Town may hire an independent consultant, at the cost of the applicant, to review and/or conduct their own visual assessment.
Submit a screening and landscaping plan to show adequate measures to screen through landscaping, grading, or other means so that views of solar panels and solar energy equipment shall be minimized as reasonably practical from public roadways and adjacent properties to the extent feasible. The Planning Board will, in good faith, determine the adequacy of these measures in its sole and absolute discretion.
The screening and landscaping plan shall specify the locations, elevations, height, plant species, and/or materials that will comprise the structures, landscaping, and/or grading used to screen and/or mitigate any adverse aesthetic effects of the system. The landscaped screening shall, at a minimum, be comprised of evergreen/coniferous trees (planted at recommended spacing for the type of tree), at least eight to 10 feet high at the time of planting (depending on site conditions and the result of the visualizations), and may need to be installed in a zig-zag pattern to maximize screening, plus supplemental shrubs (deer resistant) placed in between the evergreen trees at the reasonable discretion of the Town Planning Board. These plantings are to be planted, typically, within 10 linear feet of the solar energy system fencing or as directed by the Planning Board to achieve maximum screening. In some cases, existing vegetation located on participating properties may be used to satisfy all or a portion of the required landscaped screening. Suitable evergreen tree and shrub species are to be determined by a professional arborist and approved by the Town. This minimum screening requirement will be reduced if adjoining properties are participating properties. All plantings shall come with a ten-year guarantee and must be replaced if dead or diseased (include this in operation and maintenance plan required in this code). This will be enforced by the Town through the required yearly inspections. Berms can also be utilized to reduce heights of proposed plantings, but the berms must not interfere with site drainage and must be properly designed to maintain vegetation. Landscape plans must be completed by a NYS registered landscape architect.
For any buildings or structures (not panels) to be placed on the site, the applicant shall be required to submit plans illustrating how these structures will blend into the character of the area. For example, buildings can be made to look like agricultural structures such as barns.
Agricultural resources. For projects located on agricultural lands:
Any Tier 3 solar energy system located in the Town's Ag Production Zone (as illustrated in the Town's Comprehensive Plan) on lands that consist of prime farmland or farmland of statewide importance shall not exceed (construct facilities on) 50% of the area of prime farmlands or farmland soils of statewide importance on that parcel.
Any Tier 3 solar energy system located on farmland outside of the Ag Production Zone that consist of prime farmland or farmland of statewide importance shall minimize the impact to these important soils by avoiding those areas to the maximum extent practicable.
Tier 3 solar energy systems on lots containing prime farmland or farmland of statewide importance shall be required to seed a minimum of 20% of the total surface area of all solar panels on the lot with native perennial vegetation designed to attract pollinators in accordance with the plantings provided by the Genesee County Soil and Conservation Department.
To the maximum extent practicable, Tier 3 solar energy systems located on lots containing prime farmland or farmland of statewide importance shall be constructed in accordance with the construction requirements of the New York State Department of Agriculture and Markets.
Tier 3 solar energy system owners shall develop, implement, and maintain native vegetation to the extent practicable pursuant to a vegetation management plan by providing native perennial vegetation and foraging habitat beneficial to game birds, songbirds, and pollinators. To the extent practicable, when establishing perennial vegetation and beneficial foraging habitat, the owners shall use native plant species and seed mixes.
To address the above requirements, the applicant and Town shall consult with the Genesee County Soil Conservation Service. If the project is located in or adjacent to a NYS certified agricultural district, the NYS Department of Agriculture and Markets shall also be contacted, and comments received and followed.
Permitting requirements for Tier 4 solar energy systems.
All Tier 4 solar energy systems are permitted within the Agricultural Residential Zoning District, subject to both the special use process and site plan requirements set forth in this section and/or any other applicable requirements of the existing Zoning Ordinance.
These systems may also be eligible for a solar energy system PILOT and will require a host community agreement as determined by the Town Board.
Tier 4 solar energy systems have all the same restrictions and requirements as Tier 3 systems but with the following additional or modified restrictions and requirements. These additional restrictions and requirements are due to the potential significant impacts that occur for these large-scale projects.
These Tier 4 systems are also restricted (not allowed) in the Wellhead Protection Overlay Area.
Additional application and permitting requirements for Tier 4 solar energy systems:
All the information/requirements listed for a Tier 3 system plus the following additional information/requirements.
Submittal of an agricultural impact statement to determine the impact to agriculture in the Town and community. The Planning Board, on a project-by-project basis, will work with the applicant on finalizing the requirements of this agricultural impact statement, but at a minimum will include whether the farmland is active (how long it has been farmed or not farmed) and if it is farmed by the property owner or leased. If leased, how the removal of this leased land will affect the farmer who leases this site and other farmlands and other leases that the farmer has in the Town. Include information on the improvements that have been made to the lands (tilling, irrigation, etc.), history of the farm and its products, number of workers, products purchased and used for farming operations, etc.
Submittal of an economic impact analysis to determine the impact of the project on the economy of the Town. This includes the agricultural impacts in the Ag impact statement and information as noted by the Town Planning Board (Town to work with the applicant on the scoping of this study, but will include, at a minimum, the estimated PILOT and HCA payments to the Town).
Proposal for a host community agreement (to be reviewed and approved by the Town Board prior to any approvals granted by other boards or agencies) that reflects the large-scale impacts of the project.
Construction, maintenance, procedures, and fees.
Time limit on completion. After the granting of a special permit of a Tier 3 or Tier 4 solar energy system with concurrent site plan approval or site plan approval of a freestanding or ground-mounted solar energy system by the Planning Board, the building permit shall be obtained within six months and the project shall be completed within 12 months after the building permit has been issued. A six-month extension to obtain a building permit or the completion time can be issued by the Planning Board upon application by the applicant. If not constructed, the special permit and/or site plan approval shall automatically lapse within 12 months after the date of approval by the Planning Board (unless an extension is granted).
For Tier 3 and 4 solar energy systems, the Town will require appropriate insurances to be in place prior to construction beginning. The Town shall provide these standards and requirements.
Inspections. Upon reasonable notice, the Town of Batavia Building Inspector or his or her designee may enter a lot on which a solar energy system has been approved for the purpose of compliance with any requirements or conditions. Twenty-four hours' advance notice by telephone or email to the owner/operator or designated contact person shall be deemed reasonable notice. Furthermore, a Tier 3 (and Tier 4) energy system shall be inspected annually by a New York State licensed professional engineer that has been approved by the Town or at any other time, upon a determination by the Town's Building Inspector that damage may have occurred, and a copy of the inspection report shall be submitted to the Town Building Inspector. Any fee or expense associated with this inspection shall be borne entirely by the permit holder.
General complaint process. During construction, the Town Building Inspector can issue a stop order at any time for any violations of a special permit or building permit. The permit holder of a Tier 3 or Tier 4 solar energy system shall establish a contact person, including name and phone number, for receipt of any complaint concerning any permit requirements.
Continued operation. A solar energy system shall be maintained in operational condition at all times, subject to reasonable maintenance and repair outages. Operational condition includes meeting all approval requirements and conditions. Further, the Building Inspector shall also have the right to request documentation from the owner for a solar energy system regarding the system's usage at any time.
Removal. All solar energy systems shall be dismantled and removed in accordance with the time approved by the Building Department from a lot when the special permit or approval has been revoked by the Town Planning Board or the solar energy system has been deemed inoperative or abandoned by the Building Inspector in accordance with the decommissioning and security sections of this section. If the owner does not dismantle and remove said solar energy system as required, the Town Board may, after a hearing at which the owner shall be given an opportunity to be heard and present evidence, dismantle and remove said facility in accordance with the decommissioning plan. If the owner fails to act, the Town will act in accordance with the security requirements of this section.
Determination of abandonment or inoperability. The Town Building Inspector shall have the authority to determine the abandonment or inoperability of a solar energy system. Written notice of this determination shall be served within 10 days upon the owner by personal service or by certified mail. Any appeal of the Building Inspector's determination must be made to the Zoning Board of Appeals pursuant to the terms and conditions set forth in § 235-62 of the Town Zoning Ordinance. The filing of an appeal does not stay the following time frame unless the Zoning Board of Appeals or a court of competent jurisdiction grants a stay or reverses said determination. At the earlier of the 366 days from the date of determination of abandonment or inoperability without reactivation or upon completion of dismantling and removal, any approvals for the solar energy system shall automatically expire.
Application and annual fees.
Tier 3 and Tier 4 solar energy systems. An applicant shall pay an initial application fee in the amount as set by the Town Board, upon filing its special permit and site plan application to cover the cost of processing and reviewing the application. Per subsections of this section, if the Planning Board needs to hire specialists/consultants to review reports/materials submitted by the applicant, the Town will charge the costs of these reviews to the applicant and may require escrow monies to be deposited to cover such costs. If the project is approved, the owner shall pay an annual fee in the amount as set by the Town Board to cover the cost of processing and reviewing the annual inspection reports and for administration, inspections, and enforcement.
Applications for Tier 2 ground-mounted solar energy systems. An applicant shall pay a review fee as determined from time to time by the Town Board by resolution.
The Town of Batavia reserves the right, by local law, to provide that no exemption pursuant to the provision of New York State Real Property Tax Law (RPTL) § 487 shall be applicable within its jurisdiction.
Prior to the issuance of a building permit, the applicant shall document that all applicable federal, state, county, and local permits have been obtained.
Upon completion of the construction of a Tier 3 or Tier 4 solar energy system, the applicant shall provide a certification from a NYS licensed engineer that the project has been constructed in accordance with the approved plans, conditions of the SUP, and all applicable NYS and federal regulations and laws.
Ownership changes. If the owner or operator of the solar energy system changes or the owner of the property changes, the special use permit shall remain in effect so long as they are in full compliance with this section and all the conditions and provided that the successor owner or operator assumes, in writing, all of the obligations of the special use permit, site plan approval, decommissioning plan and decommissioning agreement. A new owner or operator of the solar energy system shall notify the Zoning Enforcement Officer of such change in ownership or operator within 30 days of the ownership change.
Safety.
Solar energy systems and solar energy equipment shall be certified under the applicable electrical and/or building codes as required.
Solar energy 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 3 and Tier 4 solar energy system is located in an ambulance district, the local ambulance corps.
If storage batteries are included as part of the solar energy system, they shall meet the requirements of any applicable fire prevention and building code when in use and, when no longer used, shall be disposed of in accordance with the laws and regulations of the Town of Batavia and any applicable federal, state, or county laws or regulations. See the Town's Battery Energy Storage Law.
Permit time frame and abandonment.
Upon cessation of electricity generation and consistent with decommissioning regulations of a solar energy system on a continuous basis for 12 months, the Town may notify and instruct the owner and/or operator of the solar energy system to implement the decommissioning plan. The decommissioning plan must be completed within 360 days of notification.
If the owner and/or operator fails to comply with decommissioning upon any abandonment, the Town may, at its discretion, utilize the bond and/or security for the removal of the solar energy system and restoration of the site in accordance with the decommissioning plan.
Enforcement; penalties.
Any person, firm, corporation or entity which may violate any provisions of this section shall be guilty of a violation and, upon conviction thereof, shall be subject to the penalties set forth in § 235-65 of the Code of the Town of Batavia Zoning Ordinance. Any person, firm, corporation or entity which may violate any provisions of this section shall become liable to the Town for any actual expense or loss or damage occasioned by the Town by reason of such violation; in addition to any actual losses or damages sustained by the Town, such expense shall also include, but not be limited to, statutory costs, disbursements and reasonable attorney's fees in the event that an action is commenced to enforce this section. The imposition of penalties herein prescribed shall not preclude the Town or any person from instituting appropriate legal action or proceedings to prevent a violation of this section or to restrain or enjoin the use or occupancy of premises or any part thereof in violation of this section.
Upon at least seven days' prior written notice by mail or email, the Town Building Inspector shall have the right, which must be granted by the owner, to inspect a solar energy system, or any part thereof, for the purposes of enforcement, compliance or determinations required pursuant to this section.
Severability. The invalidity or unenforceability of any section, subsection, paragraph, sentence, clause, provision, or phrase of the aforementioned subsections, as declared by the valid judgment of any court of competent jurisdiction to be unconstitutional, shall not affect the validity or enforceability of any other section, subsection, paragraph, sentence, clause, provision, or phrase, which shall remain in full force and effect.