Blooming Grove City Zoning Code
ARTICLE XXI
Battery Energy Storage System
§ 235-105 Title.
This article shall be known as the "Battery Energy Storage System Local Law," enacting certain zoning amendments to Chapter 235, Zoning, of the Code of the Town of Blooming Grove to regulate the location, design and operation of battery energy storage systems within the Town of Blooming Grove.
§ 235-106 Authority.
This article is enacted pursuant to the authority of Municipal Home Rule Law § 10, the New York State Town Law, and in accordance with Chapter 235, Article XIX, Amendments, of the Code of the Town of Blooming Grove. To the extent that the provisions of this article are in conflict with § 278 of the New York State Town Law, the Town Board hereby asserts its intent to supersede § 278 pursuant to Home Rule Law.
§ 235-107 Purpose and findings.
A.
Battery energy storage systems, also referred to herein as "energy storage systems," are a nonpolluting energy resource that reduce fossil fuel emissions and reduce a municipality's energy load. Energy from energy storage systems can be used to offset high energy demand on the grid when excess power is generated.
B.
The use of energy storage systems provides sustainable electricity and energy for heating and/or cooling, and other uses that are powered by electricity and is an integral component of the Town of Blooming Grove's current and long-term sustainability goals.
C.
This article regulates energy storage systems and equipment and the provision of adequate and convenience of access necessary therefor; establishes standards to ensure adjoining properties are protected when energy storage systems are installed adjacent to or near same, while preserving the ability of a property owner to install energy storage systems in accordance with applicable laws and regulations; and recognizes energy storage systems as a source for current and long-term energy storage and sustainability of local, regional and state energy systems.
§ 235-110 General permit, inspection and operating requirements.
A.
No energy storage system shall be installed, operated or modified except in compliance with this article and Zoning Chapter.
B.
All energy storage system installations must be performed by a qualified installer.
C.
Prior to operation, electrical connections must be inspected by the Town Code Enforcement Officer and by a qualified electrical inspector acceptable to the Town. Any connection to a public utility grid must meet all applicable Town, state, federal and public utility laws, rules and regulations.
D.
All energy storage systems shall be maintained to be safe and in good working order.
E.
All energy storage systems shall comply with all applicable Uniform Code standards.
F.
All energy storage systems, when no longer in use, shall be disposed of as set forth herein and in accordance with all other applicable laws and regulations.
G.
All energy storage systems and equipment shall require visual identification through the installation of signage or similar identification in order to provide emergency responders with appropriate warning and guidance with respect to isolating the energy storage system in the event of an emergency. Signage shall be weather resistant. The signage or similar identification shall be placed adjacent to the main service disconnect in a location clearly visible from the location where the lever is operated.
H.
Prior to issuance of any permit for storage battery systems, the applicant shall submit to the Town Building Department a letter stating that the issuance of said permit shall not and does not create in the property owner or its successors and assigns in title, or create in the property itself:
(1)
The right to remain free of shadows and/or obstructions to the energy storage system caused by development of adjoining property or the growth of any trees or vegetation on adjoining properties; or
(2)
The right to restrict or prohibit development or the growth of any trees or vegetation on adjoining property.
I.
Notwithstanding any other provision contained herein, all energy storage systems regulated herein must comply with the provisions of this Zoning Chapter, including § 235-14.4 regulating overlay districts.
J.
An energy storage system may be allowed accessory to a use or building on the same lot or may be a principal use on a lot separate from the uses or uses it serves.
§ 235-111 General requirements applicable to all energy storage systems.
A.
A building permit and an electrical permit shall be required for installation of all energy storage systems.
B.
Issuance of a special use permit from the Town Board and site plan approval from the Planning Board shall require review pursuant to § 235-65 of this chapter regarding SEQRA.
C.
All energy storage systems, all dedicated-use buildings, and all other buildings or structures that contain or are otherwise associated with an energy storage system and are subject to the Uniform Code and/or the Energy Code shall be designed, erected, and installed in accordance with all applicable provisions of the Uniform Code, all applicable provisions of the Energy Code, and all applicable provisions of the codes, regulations, and industry standards as referenced in the Uniform Code, the Energy Code, and the Town Code, including but not limited to Chapter 201, Stormwater, of the Town of Blooming Grove. Nothing herein shall prohibit the Town Board from imposing more restrictive conditions in order to protect the health, safety and welfare of the Town.
D.
Energy storage systems are prohibited from being located within the area of special flood hazard as defined in Chapter 132, Flood Damage Prevention.
E.
The applicant, property owner, system owner and system operator shall be required to enter into an agreement to remove the storage battery system and all associated equipment and structures if the storage battery system ceases to operate for 12 consecutive months. Removal of the unused system, equipment and structures shall be completed within six months thereafter. The agreement shall be in a form satisfactory to the Town Attorney,
§ 235-112 Tier 1 battery energy storage system.
A.
A Tier 1 storage battery energy storage system is permitted as an accessory use in all zoning and overlay zoning districts and is allowed subject to issuance of a building permit in accordance with the following standards:
(1)
A Tier 1 system may be mounted in or near any legal principal or accessory building or structure except that the system shall not be located in a required yard or within the front yard of any building. A Tier 1 system shall be set back from neighboring property lines in accordance with the requirements governing principal buildings if the system is affixed to the principal building or setback requirements applicable to accessory buildings and structures. Nothing herein shall allow a Tier 1 system from being located closer than 50 feet to the nearest property line, and the more restrictive setback shall prevail.
(2)
A Tier 1 system is permitted to serve only the building or structure on the lot upon which the system is located.
(3)
The applicant shall file a building permit application with the Town Building Department which shall be accompanied by fees set forth in the Town of Blooming Grove Fee Schedule.
(4)
A Tier 1 system, if mounted exterior to the building and if visible from the street, shall be mounted at an angle as to minimize its visibility, appearance and profile from the street and neighboring properties.
(5)
A Tier 1 system shall comply with all Town Codes.
(6)
The Tier 1 system and all related equipment shall be substantially screened from view from adjoining properties and all roads through the use of landscaping, fences, earth berms, or other screening which will harmonize with the character of the property and surrounding area.
(7)
Tier 1 storage battery system equipment shall not be sited within any required buffer area.
(8)
Building coverage limitations.
(a)
The total surface area of a Tier 1 system and all associated equipment on a lot shall not exceed the area of the ground covered by the largest building on the lot measured from the exterior walls, excluding patios, decks, balconies, screened and open porches and attached garages.
(b)
The area beneath a Tier 1 system shall be included in calculating maximum permitted building coverage limitations of the district in which it is located.
(c)
If the Tier 1 system is mounted above an existing impervious surface, it shall not be included in the calculation of building coverage.
§ 235-113 Tier 2 and 3 battery energy storage system.
A.
Zoning districts. Tier 2 and 3 energy storage systems are prohibited in the following overlay districts: Ridgeline Overlay District, Scenic Gateway Overlay District and Surface Water Overlay District. In all other zoning districts, Tier 2 and 3 storage battery energy storage system are permitted as an accessory use or as a principal use, subject to special use permit approval of the Town Board and site plan approval of the Planning Board in accordance with the procedures and standards set forth in Article IX and § 235-55, respectively.
B.
Type I action. An application for approval of a Tier 2 or Tier 3 system shall be classified a Type I action under SEQRA.
C.
Special use permit application for the installation of Tier 2 and Tier 3 battery energy storage system. The Town Board shall review the special use permit application for completeness. In addition to any submissions required by Article IX of this Zoning Chapter, an application shall be deemed complete only after all requirements for a special use permit are met below as set forth below.
D.
Variance required. A variance issued by the Zoning Board of Appeals shall be required for any Tier 2 or Tier 3 system which does not meet the bulk requirements set forth herein.
E.
Special use permit standards.
(1)
Setbacks. A Tier 2 or 3 system shall be set back no less than 100 feet from any road and from any lot line and no less than 1/4 mile from any other Tier 2 or Tier 3 storage battery system in the unincorporated Town of Blooming Grove that is existing, under construction or pending before the Town Board.
(2)
Maximum height. The average height of any Tier 2 or 3 storage battery system shall not exceed 20 feet.
(3)
The Tier 2 or 3 system and related equipment shall be screened substantially from view from adjoining properties and from all roadways to the satisfaction of the Town Board. If landscape screening is proposed, a landscape design, signed and stamped by a licensed landscape architect, shall be submitted with the site plan application. The applicant shall provide a visual analysis to the Town Board, which may include line-of-sight profiles, photosimulations and other renderings from vantage points to be determined by the Town Board.
(4)
All on-site power lines, utility lines and electrical circuitry shall be installed 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, as demonstrated to the satisfaction of the Town Board that such underground installation is not practicable given the particular characteristics of the site.
(5)
Buildings and structures associated with a Tier 2 and 3 systems shall, to the extent reasonably possible, use materials, colors, and textures that blend the facility into the existing environment.
(6)
Access to the site shall provide appropriate and safe sight distance and lawful and appropriate access for emergency vehicles and equipment. Access to the facility shall be reviewed for its sufficiency by the relevant emergency service provider(s) and site shall be constructed with a hard surface and as required by the Town driveway specifications and requirements. Adequate site access shall be maintained throughout the life of the facility including snow removal to ensure adequate access by the applicable emergency service providers.
(7)
Signage.
(a)
All signage shall comply with ANSI Z535 and shall identify the type of technology associated with the battery energy storage systems, any special hazards associated with same, the type of suppression system installed in the area of battery energy storage systems, and twenty-four-hour emergency contact information, including reach-back phone number.
(b)
As required by the NEC, disconnect and other emergency shutoff information shall be clearly displayed on a light reflective surface. A clearly visible warning sign concerning voltage shall be placed at the base of all pad-mounted transformers and substations.
(c)
The Town Building Inspector and/or Fire Inspector shall review all signage during site plan review and ensure that adequate identification is provided to all necessary components of the system.
(d)
The site shall include prominent and clear identification of the property address and of the address and phone number of the owner and operator in the case of emergency.
(8)
Lighting. Lighting of the battery energy storage systems shall be limited to that minimally required for safety and operational purposes and shall be reasonably shielded and downcast from abutting properties.
(9)
Storage prohibited. The area surrounding the Tier 2 and 3 system collectors shall not be used for storage of any equipment or material.
(10)
Tree clearing. Construction of a Tier 2 and 3 system shall minimize, to the greatest extent practicable, the clear-cutting of trees. For purposes of this section, the term "clear-cut" shall be the same as the term used in § 219-4, Clear-cutting, of the Town of Blooming Grove Code. The Planning Board, in its sole discretion, shall determine the percentage of land that may be clear-cut. Where significant trees are removed (eight inches DBH or greater), no less than 50% of the canopy cover lost shall be replaced with new trees. The plan shall show the following: (i) trees to be removed or likely to be removed; (ii) replacement trees; and (iii) the type and size of the trees identified in Items (i) and (ii); and (iv) the proposed location of the replacement trees. The area of canopy cover lost shall be determined by use of the canopy cover and/or basal area formulas. The Planning Board may reduce the number of new or replacement trees if, in its opinion, the plantings might damage other trees or flora or if the number of new or replacement trees is excessive for the site of the installation or the replacement site. The Planning Board may waive this requirement if the Town Board has entered into a developer's agreement with the Town and the replacement of trees has been addressed to the satisfaction of the Town Board and Town Attorney.
(11)
Perimeter vegetation. Areas within 30 feet of all sides of a Tier 2 and Tier 3 system shall be cleared of combustible vegetation and other combustible growth. Single specimens of trees, shrubbery, or cultivated ground cover such as green grass, ivy, succulents, or similar plants used as ground covers may be permitted provided that it is determined that such ground cover does not form a means of readily transmitting fire.
(12)
Safety enclosure. The perimeter of a Tier 2 and 3 system shall be enclosed in a fence to deter access to the site. The Town Board shall establish the maximum height, location, and fence materials, taking into consideration all applicable Town codes, laws and regulations governing enclosure of a Tier 2 and Tier 3 storage battery system. Where this section is inconsistent with any other section of the Zoning Chapter regulating fences, this section shall prevail.
(13)
Noise. The one-hour average noise generated from the battery energy storage systems, components, and associated ancillary equipment shall not exceed a noise level of 60 dBA as measured at the property line. Applicants may submit equipment and component manufacturers' noise ratings to demonstrate compliance. The applicant may be required to provide operating sound pressure level measurements from a reasonable number of sampled locations at the perimeter of the battery energy storage system to demonstrate compliance with this standard.
(14)
Additional specifications. The following shall be submitted:
(a)
An electrical diagram detailing the battery energy storage system layout, associated components, and electrical interconnection methods, with all National Electrical Code compliant disconnects and over current devices will be clearly marked on the site plan and any and all documents that illustrate and describe the electrical components of the site.
(b)
Equipment specification sheets that document the proposed battery energy storage system components, inverters and associated electrical equipment that are to be installed. Equipment specification sheets for all battery types, significant components, hazardous materials, highly toxic material, and battery unit invertors. A final equipment specification sheet shall be submitted prior to the issuance of a building permit.
(c)
Name, address, and contact information of proposed or potential system installer and the property and site owner and/or operator of the battery energy storage system. Such information of the final system installer shall be submitted prior to the issuance of building permit.
(d)
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 battery energy storage system.
(e)
Zoning district designation for the parcel(s) of land comprising the project site.
(f)
Commissioning plan. Such plan shall document and verify that the system and its associated controls and safety systems are in proper working condition per requirements set forth in Appendix 1.[1] Battery energy storage system commissioning shall be conducted by a New York State (NYS) licensed professional engineer or NYS registered architect after the installation is complete but prior to final inspection and approval. A corrective action plan shall be developed for any open or continuing issues that are allowed to be continued after commissioning. A report describing the results of the system commissioning and including the results of the initial acceptance testing required in Appendix 1 shall be provided to Town Board prior to final inspection and approval and maintained at an approved on-site location.
[1]
Editor's Note: Said appendix is included as an attachment to this chapter.
(g)
Fire safety compliance plan. Such plan shall document and verify that the system and its associated controls and safety systems are in compliance with the applicable fire prevention code and informed by Appendix 2.[2]
[2]
Editor's Note: Said appendix is included as an attachment to this chapter.
(h)
System operations and maintenance plan. Such plan shall describe continuing battery energy storage system maintenance and property upkeep, as well as design, construction, installation, testing and commissioning information per requirements set forth in Appendix 3.[3]
[3]
Editor's Note: Said appendix is included as an attachment to this chapter.
(i)
(Reserved)
(j)
Prior to the issuance of the building permit, engineering documents must be signed and sealed by a NYS licensed professional engineer or NYS registered architect.
(k)
An emergency operation plan per requirements set forth in Appendix 4.[4]
[4]
Editor's Note: Said appendix is included as an attachment to this chapter.
(l)
Safety system certification. Battery energy storage systems, components, and associated ancillary equipment shall have required working space clearances, and electrical circuitry shall be within weatherproof enclosures marked with the environmental rating suitable for the type of exposure in compliance with NFPA 70. Battery energy storage systems and equipment shall be listed by a nationally recognized testing laboratory to UL 9540 or CAN 9540 (standard for battery energy storage systems and equipment) with subcomponents meeting each of the following standards that are applicable based on the storage type (electrochemical, thermal, mechanical):
[1]
UL 1973 (Standard for Batteries for Use in Stationary, Vehicle Auxiliary Power and Light Electric Rail Applications).
[2]
UL 1642 (Standard for Lithium Batteries).
[3]
UL 1741 or UL 62109 (inverters and power converters).
[4]
Certified under the applicable electrical, building, and fire prevention codes as required.
[5]
Alternatively, field evaluation by an approved testing laboratory for compliance with UL 9540 and applicable codes, regulations and safety standards may be used to meet system certification requirements.
(m)
A property maintenance plan, which plan shall describe continuing equipment maintenance and property upkeep, such as but not limited to mowing and trimming. Any use of herbicides shall be restricted to those approved and regulated by the New York State Department of Environmental Conservation (DEC) and shall be applied in accordance with applicable DEC regulations. Ten days prior to the application of any herbicide, the system operator shall provide written notification to the Town Code Enforcement Officer (CEO) specifying the type and amount of herbicide to be used and the date, time and location of the proposed application and shall provide such other information as deemed necessary by the CEO. The written notification shall be presented in the form of a notarized affidavit signed by the system operator attesting to the truth of the information provided therein.
(n)
If the property of the Tier 2 or 3 system is to be leased, the written legal consent of all affected parties, specifying the use(s) of the property, and the duration of the project, including easements and other agreements.
(15)
Decommissioning and removal.
(a)
Removal of unused systems. The applicant, property owner, system owner and system operator shall enter into an agreement binding unto themselves and their successors and assigns in a form satisfactory to the Town Board and Town Attorney and will be memorialized in a developer's agreement that was so adopted by Town Board resolution that will address the removal of the Tier 2 and 3 battery energy system and all associated equipment and structure when system ceases to be used for its intended purpose for 12 consecutive months. Removal of such unused system, equipment and structures shall be completed within six months thereafter. Said developer's agreement shall be recorded in the change of title and shall be a condition of the special use permit authorized by the Town Board.
(b)
Decommissioning and removal plan. To ensure the proper removal of a Tier 2 and 3 system, a decommissioning plan shall be submitted as part of the application. Compliance with the approved decommissioning plan shall be a condition of the special use permit authorized by the Town Board. The decommissioning plan shall specify that after the Tier 2 and 3 storage battery system ceases operation, as described in Subsection E(15)(a) above, the system shall be removed by the applicant, property owner, system owner and system operator as the case may be. The plan shall demonstrate how the removal of the Tier 2 and 3 storage battery systems and all related equipment and structures shall be conducted and how the remediation of soil and vegetation shall be conducted to return the property to substantially its condition prior to construction. A cost estimate detailing the projected cost of executing the decommissioning plan shall be prepared by a professional engineer. Cost estimates shall take inflation into account. The decommissioning plan shall state the time period within which the storage battery system shall be removed and the property restored, which time period shall be no greater than six months after the stationary storage battery system ceases, for 12 consecutive months, to be used for its intended purpose. A six-month extension may be granted by the Town Code Enforcement Officer upon good cause shown.
(c)
Decommissioning and removal security.
[1]
The applicant shall execute and file with the Town Clerk security in a form acceptable to the Town Attorney and Town Board, and in an amount sufficient to pay for the costs and expenses of removal of the stationary storage battery system and related equipment and structures and restoration of the site. The amount is subject to approval by the Town Board's professional engineer and the Town Board. The security may be in the form of cash, letter of credit or another instrument acceptable to the Town Attorney and the Town Board, or a combination thereof. The security shall remain in full force and effect until all stationary storage battery system equipment, structures, and materials have been properly removed and site restoration is complete.
[2]
The amount of the security shall be sufficient, during the first five years of operation, to cover at least the projected costs to deconstruct and dispose of all equipment, structures and materials related to the stationary storage battery system; projected costs to restore the site; and all projected fees, costs and expenses estimated to be incurred by the Town to administer and enforce the decommissioning process. Such amount shall be reevaluated every five years thereafter and, if necessary, adjusted to reflect prevailing costs and expenses as a condition to continue operation of the system.
[3]
If the amount of the security does not fully cover such fees, costs and expenses ("costs") or if the Town cannot reasonably recover adequate proceeds of the security, then the owner and operator of the large-scale Tier 2 or 3 stationary storage battery systems and the property owner shall be jointly and severally, and corporately and personally, liable for the costs not recovered. In addition, the Town may assess such costs against the property, which assessment shall constitute a lien on the property, and which amount may be collected in the same manner as real property taxes.
[4]
Equipment and parts maintenance. All equipment, parts and items of any kind appurtenant to the maintenance or operation of the large-scale stationary storage battery systems shall be contained in a secure building. Damaged or unused equipment and parts shall be removed from the premises within 30 calendar days.
[5]
Ownership changes. If the owner or operator of a Tier 2 or 3 system changes or if the property owner changes, the special use permit shall remain in effect, and all requirements of the Town Code and all conditions and requirements of the special use permit shall be binding upon each succeeding owner and operator. However, a change in owner or operator shall not affect the decommissioning security, although a new owner may substitute other security in accordance with § 235-113E(15)(c). A new owner or operator of the battery energy storage system shall immediately notify the Town Code Enforcement Officer of such change in ownership or operator as a condition of continued operation of same.
(16)
Modifications. Any and all modifications, additions or deletions to a Tier 2 or 3 system, whether structural or not, shall require amended site plan review and approval by the Planning Board, except that routine repairs and maintenance, as determined by the Town Code Enforcement Officer after consultation with the Town Engineer, shall not be subject to Planning Board review.
(17)
Permit timeframe and abandonment.
(a)
The special use permit for a Tier 2 and Tier 3 system shall be valid for a period of 24 months, provided that a building permit is issued and construction is commenced within 12 months of the date of approval. In the event construction is not completed within 24 months of the date of approval, the Town Board may extend the approval for a period of 180 days only after the Town Board has received a written request from the applicant within 30 business days prior to the expiration of the permit. If the owner and/or operator fails to perform substantial construction after 24 months, special use permit approval shall expire.
(b)
If the owner and/or operator fails to comply with decommissioning upon any abandonment, the Town will, at its discretion, utilize the available bond and/or security for the removal of a Tier 2 or Tier 3 battery energy storage system and restoration of the site in accordance with the decommissioning plan.
§ 235-114 Severability.
If any word, phrase, sentence, part, section, subsection, or other portion of this article or any application thereof to any person or circumstance is declared void, unconstitutional, or invalid for any reason, then such word, phrase, sentence, part, section, subsection or other portion, or the proscribed application thereof, shall be severable, and the remaining provisions of this article, and all applications thereof, not having been declared void, unconstitutional or invalid, shall remain in full force and effect.
§ 235-115 Conflict with other laws.
Where this article differs or conflicts with other laws, rules and regulations, unless the right to do so is preempted or prohibited by the county, state or federal government, the more restrictive or protective of the Town and the public shall apply.
§ 235-116 When effective.
This article shall become effective upon filing with the New York State Secretary of State.
§ 235-117 Authority.
This article is enacted pursuant to the Municipal Home Rule Law. This article shall supersede the provisions of the Town Law to the extent it is inconsistent with same, and the extent permitted by the New York State Constitution, the Municipal Home Rule Law, or any other applicable statute.