Brookhaven City Zoning Code
Article
XXXI Renewable Energy Systems
§ 85-799 Legislative intent.
[Amended 2-13-2020 by L.L. No. 3-2020, effective 2-28-2020]
A.
The purpose of this article is to provide a sustainable quality of life and put forth regulations to facilitate the development and operation of renewable energy systems within the Town of Brookhaven in all zoning districts, making careful and effective use of available natural resources to maintain and enhance this quality of life.
B.
As part of this article, it is in the public interest to encourage renewable energy systems that have a positive impact in energy conservation, with limited adverse impact on the community. While the Town of Brookhaven strongly encourages increased energy conservation and improved energy efficiency, the Town also finds that increased use of appropriate renewable energy systems will be an important part of improving sustainability.
C.
These renewable energy regulations are intended to supplement existing zoning ordinances and land use practices, and ensure these systems are appropriately designed, sited and installed. These regulations are in place to balance the need to improve energy sustainability through increased use of renewable energy systems with concerns for preservation of public health, welfare, and safety, as well as environmental quality, visual and aesthetic values, and existing neighborhood social and ecological stability. Further, the intent is to minimize any adverse impacts on the character of the neighborhoods, property values, scenic, historic, and environmental resources of the Town.
§ 85-800 Wind energy conversion systems (WECS).
WECS shall be permitted, installed, and erected within the Town pursuant to a building permit so long as they meet the provisions of this article and all applicable sections of the Town Code. Further, no building permit shall be issued to construct a WECS until all other applicable permits have been secured. WECS shall be permitted only as customary accessory uses.
§ 85-801 Permitted locations.
A.
WECS shall be constructed pursuant to a building permit so long as the WECS meets the criteria set forth in § 85-802, subject to obtaining all other necessary approvals. However, no WECS shall be located in the areas listed in Subsection B below unless a special permit is granted by the Town Board. Said uses shall be subject to the criteria as set forth in Article VI, § 85-68.
§ 85-802 General requirements.
All permit applications shall be submitted to the Building Division on forms it provides and shall comply with all the requirements therein, including but not limited to the following:
A.
Application for permit. All permit applications shall be submitted to the Building Division on forms it provides and shall comply with all the requirements therein and shall include the following items, which may be satisfied by documentation supplied by the manufacturer:
(1)
Demonstrate compliance with applicable site plan requirements.
(2)
A plot plan on an approved property survey no greater than a scale of one inch equals 40 feet depicting the limits of the setback zone distance from structures, property lines, public roads and projected noise level decibels (DBA) from the small wind energy system to adjacent property lines.
(3)
Certification by the installer that the WECS complies with all applicable FAA regulations and all applicable state and/or local building codes.
(4)
A one-line diagram of the electrical components on the plot plan in sufficient detail to allow for a determination that the manner of installation conforms to the National Electric Code, Electric Code of the Town of Brookhaven and the New York State Uniform Fire Prevention and Building Code.
(5)
Standard drawings of the wind turbine structures, including the tower, base, and footings.
(6)
An engineering analysis of the tower showing compliance with the New York State Uniform Building Code and certified by a licensed professional engineer.
(7)
Soil studies. Soil studies shall be required for WECS having turbine installations greater than 20 kw or those to be located on nonstandard soil conditions such as gravel, sand, muck, dune, beach, or dredge spoil. No soil studies shall be required for all other WECS, provided the manufacturer thereof submits a certification stating that the WECS and its foundation are suitable for installation in the soil at the proposed location.
(8)
Certification by the manufacturer indicating that noise measurements are accurate and comply with Chapter 50, Noise Control, as measured from the property line nearest the WECS. The sound emanating from the WECS shall not exceed such levels, except during utility outages, severe wind storms or other short-term events beyond the control of the owner of the WECS. In the alternative, a certificate may be submitted from a professional acoustical engineer indicating same.
(9)
Utility notification. No WECS to be connected to the local utilities' grid system or otherwise using externally provided electrical power shall be installed until written notice thereof is given to such provider. Off-grid systems shall be exempt from this requirement.
B.
Overspeed controls. All WECS shall be equipped with manual and automatic overspeed controls, whose design and fabrication, together with the design and fabrication of its rotors, shall conform to good engineering practices as certified by its manufacturer.
C.
Conduits. All new conduits as required for the WECS that can be located underground shall be installed underground.
D.
Signs or other appurtenances. Except for equipment needed to operate, maintain, monitor and secure the system, no signs, television, radio, cell phone or other antennas, advertising materials or any other appurtenances shall be placed, painted on or affixed to the WECS. No brand names, logo or advertising shall be placed or painted on the tower, rotor, generator or tail vane where it would be visible from the ground, except that a system's or tower's manufacturer's logo may be displayed on a system generator housing in an unobtrusive manner. At least one sign shall be posted on the tower at a height of five feet warning of potential electrical shock or high voltage and potential harm from revolving machinery.
E.
Guy wires. If guy wires are used, the point of ground attachment for the guy wires shall be sheathed in bright orange or yellow covering from three feet to eight feet above ground. Anchor points for any guy wires shall be located at least 20 feet inside any property line that the system is located on and not on or across any aboveground electric transmission or distribution lines.
F.
Clearances; tower height. The minimum distance between the ground and any part of the rotor blade or any other moving part of a ground-mounted, horizontal-axis WECS shall be 30 feet. No climbing pegs or similar means of access to such moving parts shall be less than 15 feet from the ground. A locked anticlimb device shall be installed on the tower, or other means of access control.
G.
All on-site electrical wires associated with the system shall be installed underground except for "tie-ins" to a public utility company and public utility company transmission poles, towers and lines.
H.
Design standards.
(1)
Color. To the maximum extent feasible, consistent with all applicable FAA safety regulations and in compliance with all the other requirements in this article, the WECS shall be designed and located so as to blend with the existing surroundings of its site, using compatible colors, materials and topography, vegetation and other natural screening features at the site. Specifically, the WECS's tower blades and any other parts visible apart from its site, if painted, shall be painted in a nonreflective unobtrusive color, which reduces the visual impacts when such parts extend above the height of vegetation and which blends the system and its components into the surrounding landscape to the greatest extent possible.
(2)
Modifications. Excluding services and preventative maintenance, no alterations, additions, modifications, substitutions or deletions shall be made to such WECS without a permit from the Building Division.
(3)
Lighting. No exterior lighting shall be permitted on or about the WECS except as specifically required by the FAA.
I.
Setbacks. All WECS shall be set back from any adjoining property line or public road a distance at least equal to 100% of the WECS' total height, and in no event shall it be located in the front or side yards.
§ 85-803 Residential zones.
The following minimum requirements must be met when proposing to install a WECS in residential zoning districts. If all such provisions are met, the WECS is considered a permitted customary accessory structure to a permitted principal use.
A.
Tier I criteria for building permit.
B.
Tier II criteria for building permit.
C.
Tier III criteria for building permit.
D.
Tier IV criteria for building permit.
(1)
Minimum lot area of 200,000 square feet.
(2)
Proposes no more than one ground-mounted tower per 200,000 square feet of property, with a WECS total height of less than 160 feet.
(3)
Multiple turbines must be separated by a distance of at least 300 feet from the center of the tower at the foundation.
§ 85-804 Industrial/Commercial zones.
The following minimum requirements must be met when proposing to construct/install a WECS in an industrial/commercial zoning district. If all such provisions are met, the WECS is considered a permitted customary accessory structure to a permitted principal use.
A.
Tier I criteria for building permit.
B.
Tier II criteria for building permit.
C.
Tier III criteria for building permit.
D.
Tier IV criteria for building permit.
(1)
Minimum lot area of 200,000 square feet.
(2)
Proposes no more than one ground-mounted tower per 200,000 square feet of property, with a WECS total height of less than 160 feet.
(3)
Multiple turbines must be separated by a distance of at least 300 feet from the center of the tower at the foundation.
§ 85-805 Agriculturally used parcels.
Consistent with the general requirements set forth in § 85-802, WECS are permitted on parcels used for agricultural production as structures customarily accessory and incidental to agricultural production as the same is or shall hereafter be defined in § 301 of the New York State Agriculture and Markets Law, in accordance with the aforementioned procedures.
§ 85-806 Other regulations; inspection and maintenance.
A.
Regulatory compliance. To ensure the structural integrity of the WECS, the owner of a WECS shall maintain it in compliance with standards contained in applicable state and/or local building codes (to include hurricane and tornado building standards). If, upon inspection, the Town concludes that a WECS fails to comply with such codes and standards and constitutes a danger to persons or property, then upon notice being provided to the owner of the WECS, the owner shall have 30 days to bring such WECS into compliance with such standards. Failure to bring such WECS into compliance within said 30 days shall constitute grounds for removal of the WECS at the owner's expense.
B.
In addition to any remedies provided in Chapter 50, Noise Control, if maximum decibel readings are exceeded, the violation shall be corrected within 90 days from the date of notification or the WECS shall be removed and/or relocated by the Town of Brookhaven at the owner's expense.
C.
The applicant and/or owner shall maintain the WECS in good condition.
D.
The Chief Building Inspector and/or his/her designee shall have the right at any reasonable time to enter, in the company of the owner or his agent, the premises on which a wind energy conversion system has been constructed to inspect all parts of said wind energy conversion system installation and require that repairs or alterations be made if, in his judgment, there exists a deficiency in the operation or in the structural stability of the system. If necessary, the Chief Building Inspector and/or his/her designee may order the system secured or otherwise cease its operation. It shall not be required that the owner or his agent be present in the event of an emergency situation involving danger to life, limb or property. The owner shall have 30 days to bring such WECS into compliance with such standards, and failure to do so shall constitute grounds for removal of the wind conversion system at the owner's expense.
§ 85-807 Abandonment of use.
WECS that are not used for 12 successive months shall be deemed abandoned and shall be dismantled and removed from the property at the expense of the property owner. WECS that are not removed within the time frames described herein may be removed by the Town or a contractor designated by the Town, and the owner shall reimburse the Town for its costs in removing the WECS. Failure to abide by and faithfully comply with this section or with any and all conditions that may be attached to the granting of any building permit shall constitute grounds for the revocation of the permit by the Building Division.
§ 85-808 Geothermal energy systems.
[Amended 5-21-2015 by L.L. No. 10-2015, effective 6-2-2015]
A.
Definitions.
(1)
A "closed loop system" uses buried high-density polyethylene (HDPE) plastic piping installed in drilled and grouted boreholes that conductively exchanges thermal (heat) energy with the ground via circulating water or a water/antifreeze mixture through the piping system.
(2)
An "open loop system" is a series of standard water wells that extract and use groundwater directly as a heat-exchange source then return the heated or cooled groundwater back to the aquifer.
(3)
A "direct exchange system" uses buried copper tubing that conductively exchanges heat energy with the ground via circulating a refrigerant through the tubing.
B.
There are several types of geothermal systems, also known as "ground source heating pumps," typically used on Long Island for space heating and cooling. They include closed loop, open loop, and direct exchange systems and are distinguished by the type of ground heat exchange (GHX) installed in the earth for heat transfer.
C.
The closed loop and direct exchange (DX) GHXs may be installed vertically in drilled boreholes or horizontally in excavated trenches then backfilled. The open loop systems are installed only in vertical drilled boreholes.
D.
When geothermal systems are proposed in conjunction with applications for the approval of sewage disposal and water supply facilities at a particular project site, the installation is also subject to guidelines issued by Suffolk County Department of Health Services (SCDHS) regarding the installation of geothermal wells.
E.
Geothermal energy systems shall be permitted, installed, and erected within the Town pursuant to a building permit so long as they meet the provisions of this article and all applicable sections of the Town Code. Further, no building permit shall be issued to construct a geothermal energy system until all other applicable permits have been secured. Geothermal energy systems shall be permitted only as customary accessory uses.
§ 85-809 Permitted geothermal systems and locations.
[Amended 5-21-2015 by L.L. No. 10-2015, effective 6-2-2015]
A.
Geothermal energy systems shall be constructed pursuant to a building permit so long as the geothermal energy system meets the criteria set forth in § 85-810, subject to obtaining all other necessary approvals.
B.
Permitted geothermal systems eligible to receive a building permit are those that (1) are of a system listed in § 85-808A, (2) comply with the applicable general requirements in § 85-810 and (3) satisfy the following basic criteria:
(1)
An open loop system using standard water well(s) to both extract and return groundwater from/to the same aquifer and with well screens set within 50 vertical feet of one another.
(2)
An open loop system that is not connected to a potable water system.
(3)
An open loop system where the depth to groundwater is at least 20 feet below the surface.
(4)
A vertical closed loop system using standard HDPE "U-bends" installed into drilled boreholes and grouted fully from bottom to top per industry standards.
(5)
A horizontal closed loop system using standard HDPE pipe installed into horizontal trenches and backfilled per industry standards.
(6)
A DX-to-earth contact system including either horizontal, diagonal or vertical loops and DX-to-water system including vertical loops.
(7)
Is not proposed to be located within the following areas of potential sensitivity:
(a)
One-hundred-year flood hazard zones considered a V or AE Zone on the FEMA flood maps.
(b)
Tidal or freshwater wetland or within 100 feet landward of the aforementioned.
(c)
Regulated tidal or freshwater surface water body.
(d)
Coastal erosion hazard areas.
(e)
Historic and/or culturally significant resources, in an historic district, or historic district transition zone.
(f)
Within identified wellhead protection areas.
C.
Other geothermal systems that are not eligible for a building permit under the requirements of Subsection B(2), including those within areas of potential sensivity, listed in Subsection B(7) of this section, may be allowed if a special permit is granted by the Town Board, subject to the criteria set forth in Article VI, § 85-68, and contingent on obtaining such required permits or approvals from other regulatory agencies, such as the New York State Department of Environmental Protection Agency (USEPA).
§ 85-810 General requirements.
[Amended 5-21-2015 by L.L. No. 10-2015, effective 6-2-2015]
All permit applications shall be submitted to the Building Division on forms it provides and shall comply with all the requirements therein, including but not limited to the following:
A.
Application for permit. Permit applications shall include, but not be limited to, the following items which may be satisfied by documentation supplied by the design engineer, installer or equipment manufacturer as applicable:
(1)
Demonstrate compliance with applicable site plan requirements.
(2)
A plot plan on an approved property survey no greater than a scale of one inch equals 40 feet depicting the limits of the setback zone distance from structures, property lines and public roads.
(3)
Certification by the design engineer and/or installer that the geothermal system complies with all applicable regulations and all applicable state and/or local building codes.
(4)
Subsequent to installation and on or before final inspection, certification by the design engineer and/or installer that the geothermal system was installed as designed and that the design and installation complies with the relevant industry standards and guidelines outlined below in Subsection B of this section, including but not limited to Air Conditioning Contractors of America (ACCA) Manual J heat pump unit sizing for residential systems, ACCCA Manual N or comparable load calculation techniques for commercial systems, and manufacturer-specified closed loop and DX field design guidelines.
(5)
A one-line diagram of the electrical components on the plan in sufficient detail to allow for a determination that the manner of installation conforms to the National Electric Code, Electric Code of the Town of Brookhaven and the New York State Uniform Fire Prevention and Building Code.
(6)
An engineering analysis of the geothermal energy systems showing compliance with the New York State Uniform Fire Prevention and Building Code and certified by a licensed professional engineer.
(7)
Soil studies. Soil studies shall be required for geothermal energy systems having installations to be located on nonstandard soil conditions such as gravel, sand, muck, dune, beach, or dredge spoil. No soil studies shall be required for all other geothermal energy systems, provided the manufacturer thereof submits a certification stating that the geothermal energy system and its foundation are suitable for installation in the soil at the proposed location.
B.
Design standards and guidelines.
(1)
The design and installation standards of geothermal systems, including related wells and boreholes for the GHX, shall conform to applicable industry standards, including, but not limited to, those listed below by type of system, and shall comply with the Brookhaven Town Code:
(a)
All systems: the American National Standards Institute (ANSI), the International Ground Source Heat Pump Association (IGSHPA), the American Society for Testing and Materials (ASTM), the American Society of Heating, Refrigeration and Air Conditioning Engineers (ASHRAE), the Air-Conditioning and Refrigeration Institute (ARI), ACCA, Refrigeration Section of the International Building Code, and other similar certifying organizations. The manufacturer specifications shall be submitted as part of the application.
[1]
The individual piping loops and circuits, and fully constructed piping network for all geo thermal systems shall be pressure tested for integrity of original material and joints prior to backfill in accordance with the manufacturer's instructions and the governing standards or guidelines.
[2]
Materials used to backfill horizontal GHXs and the buried, horizontal piping for vertical GHXs shall be suitable granular soil and shall be free from frozen lumps, ashes, refuse, vegetable or organic matter, rocks, or boulders over 150 mm (six inches) in any dimension, or other materials that may damage the piping. The backfilled excavations shall be compacted in accordance with industry standard practice and governing guidelines and regulations.
(b)
Open loop systems: the National Ground Water Association (NGWA) and the American Water Works Association (AWWA).
(c)
Closed loop systems: the International Ground Source Heat Pump Association (IGSHPA) and the NGWA.
(d)
Direct exchange (DX) systems: the Canadian Standards Association (CSA), the National Association of Corrosion Engineers (NACE), the American Society of Mechanical Engineers (ASME) and in accordance with manufacturer's guidelines, methods and standards.
(2)
For closed-loop systems, the following specifically apply:
(a)
Closed loop borefield installers must be trained and accredited by IGSHPA and certified by the piping manufacturer in polyethylene pipe heat-fusion or electro-fuse welding techniques, whichever is used.
(b)
Closed loop borefields that will supply greater than 50 tons of heating/cooling capacity must be designed by an IGSHPA certified geothermal designer in good standing with the IGSHPA.
(c)
If antifreeze solutions are used as a circulating fluid in the buried ground heat exchanger, only antifreeze recommended by IGSHPA such as methanol, ethanol and food-grade propylene glycol shall be permitted.
(d)
The borehole annulus (space between the borehole wall and the piping) shall be filled and sealed through its entire depth with a high-solids bentonite clay grout (at least twenty-percent solids by weight), from the bottom of the borehole to the top using the tremie method of grouting.
(e)
Where grouting material extends through zones of salt water, a salt-water-resistant grout material shall be used.
(f)
All horizontal closed-loop systems shall be no more than 20 feet deep.
(3)
For open horizontal loop systems, the following specifically apply:
(a)
Open loop system contractors must be registered with the NYSDEC for drilling and installing wells and installing and start-up of submersible pumps and a copy of a NYSDEC well completion report must be submitted after the installation of the wells.
(b)
Well drilling contractors must notify the Suffolk County Water Authority (SCWA) of the location of wells installed as part of an open loop geothermal system.
(c)
Open loop systems with rated pumping capacity of greater than 45 gallons per minute (gpm), or systems of lesser capacity proposed on a site with existing water supply wells and for which the combined pumping capacity of proposed on a site with existing water supply wells and for which the combined pumping capacity of proposed and existing wells exceeds 45 gpm, must obtain a Long Island well permit from the NYSDEC Division of Water.
(d)
Open loop systems with a rated pumping capacity of greater than 45 gpm shall employ use of a plate-frame or shell-in-tube heat exchanger (HX) installed between the well piping and building hydronic loop to prevent cross-contamination of the return water by refrigerant, biocides, or corrosion inhibitors.
(e)
Heat pump coils and HS material of construction for open loop systems must be compatible with the groundwater chemistry per manufacturer's limits.
(f)
Water extraction.
[1]
Open loop systems may utilize a waterway to the extent permissible under federal, state or local municipal laws or regulations.
[2]
Installation requirements for open loop wells shall be the same as those for potable water wells with respect to the means to prevent aquifer contamination (grouting, etc.), or in conformance with standards, regulations, or guidelines established by the Town Engineer, NYSDEC, NGWA, and AWWA.
[3]
Any water table drawdown caused by an extraction well or wells shall not cause harm to the environment or otherwise impact the use of existing water supply wells on neighboring properties.
(g)
Discharge of water.
[1]
Discharge of water from open loop systems into storm or sanitary sewer systems shall be prohibited, except upon written approval of the SCDHS, NYSDEC, or other authority having jurisdiction.
[2]
Discharge of water from open loop systems into a waterway or tidal or freshwater wetland is not allowed unless approved by applicable federal, state and local authorities.
[3]
Underground injection of water discharge from an open loop system shall be subject to the following conditions:
[a]
Returned water shall contain no treatment or additives or other introduced chemicals.
[b]
The return well shall recharge the same aquifer from which the supply water is extracted and recharge shall occur within 50 vertical feet of the supply well screen.
[c]
The return well shall discharge the water below the water table depth to prevent aeration of the return water which can lead to precipitation of iron or other minerals and premature plugging of the well screens.
[d]
The return well shall be located a minimum distance of 200 feet from wells on adjacent properties.
[e]
The return well shall be located a minimum distance of 100 feet from the on-site well.
[f]
The return well shall recharge the groundwater from which supply water is extracted.
(h)
Return water practices shall not cause erosion, harm to the environment or flooding at the surface or other nuisance conditions on neighboring properties.
(i)
Geothermal systems shall not encroach on public drainage, utility roadway or trail easements of any nature.
(j)
The use of open loop systems within identified wellhead protection areas is prohibited.
(4)
For DX systems, the following apply:
(a)
DX system contractors shall demonstrate that they have successfully completed a DX system installers training course and are certified by an applicable equipment and material manufacturer to install DX systems.
(b)
Piping and tubing shall be of a material equivalent to or better than Type Air Conditioning Refrigeration (ACR) piping, tubing and associated fittings in accordance with the appropriate ASTM standard and ASME standard.
(c)
Below-grade joints shall be purged with inert gas and brazed in accordance with American Welding Society (AWS) standards. Piping tubing and fittings shall be installed in accordance with CSA standards.
(d)
DX system contractors shall perform joining of all refrigerant connections per CSA standards.
(e)
All underground Type ACR piping and tubing shall have a cathodic protection system which shall be designed and installed in accordance with the appropriate CSA standards and local site-specific conditions.
(f)
For vertical DX boreholes that are drilled into saturated aquifer materials (below the water table), the borehole annulus shall be filled and sealed through its entire depth with a geothermal grout from the bottom of the borehole to the top using the tremie method of grouting per CSA standards.
C.
As-built drawing. Upon completion of construction, a scaled as-built drawing must be provided showing the locations of buried wells, closed loops, DX boreholes and horizontal connector piping, triangulated from two points on the property such as a building corner or other permanent structure. Offsets must also be shown from the nearest property line, and on-site septic systems and private water wells.
D.
Setbacks.
(1)
All horizontal closed-loop systems shall be no more than 20 feet deep.
(2)
Unless otherwise specified, geothermal systems shall be located a minimum distance of 25 feet from any property line.
(3)
Aboveground equipment associated with geothermal pumps shall not be installed in the front yard of any lot or the side yard of a corner lot adjacent to a public right-of-way and shall meet all required setbacks for the applicable zoning district.
(4)
All geothermal systems shall be located a minimum distance of:
(a)
Ten feet from any water, sewage or utility line.
(b)
Ten feet from any building foundation.
(c)
Twenty-five feet from any potential source of contamination, such as underground fuel tanks, except a supply well in an open loop system shall be a minimum of 50 feet from such potential source of contamination.
(d)
Fifty feet from any storm water recharge structure.
(e)
Fifty feet from any sewage disposal structure, such as a septic tank or cesspool or leaching field, except a supply well in an open loop system shall be a minimum of 75 feet from such sewage disposal structure.
(f)
All setbacks or separation distances shall be verified by a qualified water supply engineer or hydrogeologist in order to protect against thermal impacts, water level drawdowns and groundwater impacts or structures.
§ 85-811 Decommissioning.
[Amended 5-21-2015 by L.L. No. 10-2015, effective 6-2-2015]
A.
If the geothermal system remains nonfunctional or inoperative for a continuous period of one year, the system shall be deemed to be abandoned and shall constitute a public nuisance. The owner shall remove the abandoned system at his/her expense in accordance with the below after obtaining a demolition permit.
B.
Closed loop piping systems shall be decommissioned by flushing and filling the piping with potable water and capping off the ends. If the heat transfer fluid contains regulated materials (e.g., antifreeze, biocides or corrosion inhibitors), the heat transfer fluid shall be contained and disposed of in accordance with applicable regulations.
C.
Open loop wells shall be decommissioned per NYSDEC requirements.
D.
The heat pump and any external mechanical equipment shall be removed.
E.
Pipes or coils below the land surface shall be filled with grout to displace the heat transfer fluid. The heat transfer fluid shall be captured and disposed of in accordance with applicable regulations. The top of the pipe, coil or boring shall be uncovered and grouted.
F.
Water body geothermal systems shall be completely removed from the bottom of the body of water.
§ 85-812 Solar energy production.
[Amended 8-6-2015 by L.L. No. 15-2015, effective 8-11-2015; 10-27-2016 by L.L. No. 23-2016, effective 11-7-2016]
A.
Purpose.
(1)
It is important to provide renewable energy facilities. It is equally important to protect our natural resources by providing standards for solar energy production facilities on those lands that have been previously cleared and/or disturbed.
(2)
It is altogether reasonable that the Town Board makes adequate provisions for these facilities, and it is imperative that such facilities do not adversely affect surrounding and nearby properties.
§ 85-813 Solar energy production facilities.
[Amended 8-6-2015 by L.L. No. 15-2015, effective 8-11-2015; 6-30-2016 by L.L. No. 15-2016, effective 7-13-2016; 10-27-2016 by L.L. No. 23-2016, effective 11-7-2016; 5-24-2018 by L.L. No. 10-2018, effective 5-29-2018; 2-22-2024 by L.L. No. 4-2024, effective 2-27-2024]
A.
Permitted locations.
(1)
A solar energy production facility may be permitted as a principal use or accessory use in any L Industrial 1, L Industrial 2, J Business 2, J Business 5 and J Business 4 District when authorized by special permit from the Board of Appeals subject to the requirements of §§ 85-813B and 85-57 of this chapter. Nothing herein shall supersede or limit any other code section contained within this chapter that may pertain to solar energy production facilities. No solar energy production facility shall be located in the areas listed in Subsection A(2) below unless a special permit is granted by the Town Board. Said uses shall be subject to the criteria as set forth in Article VI, § 85-68.
(2)
Areas of potential sensitivity:
(a)
One-hundred-year flood hazard zones considered a V or AE Zone on the FEMA Flood Maps.
(b)
Historic and/or culturally significant resources, in an historic district, or historic district transition zone.
(c)
Within 100 feet landward of a tidal or freshwater wetlands.
(d)
Adjacent to, or within, the control zone of any airport, subject to approval by the Federal Aviation Administration.
(e)
Within the Manorville Farm Protection Area or Eastport Farm Protection Area.
B.
Special permit criteria. A solar energy production facility as a principal use shall comply with all the special permit requirements herein, including but not limited to the following:
(1)
Minimum lot area. The minimum lot area for a solar energy production facility shall be five acres.
(2)
Height restrictions. The maximum height for freestanding solar panels located on the ground or attached to a framework located on the ground shall not exceed 20 feet in height above the ground.
(3)
Buffer and setback restrictions.
(a)
A minimum twenty-five-foot perimeter buffer, consisting of natural and undisturbed vegetation, supplemented with evergreen plantings in accordance with Town standards, as needed, shall be provided around all mechanical equipment and solar panel arrays to provide screening from adjacent residential properties and Town, county and state roads.
(b)
A minimum setback for a solar energy production facility and equipment used in conjunction with the solar energy production facility shall be located at least 100 feet from any residential dwelling or zone.
(4)
Design standards.
(a)
Solar energy production facilities shall be permitted only on those lands previously cleared and/or disturbed on or before January 1, 2016. No additional clearing shall be permitted except as provided in Subsection B(4)(b) below.
(b)
The removal of shrubs, underbrush and trees under three inches in diameter shall be permitted and shall not be deemed clearing.
(c)
To reduce erosion, runoff of stormwater, and to provide suitable habitat to native reptiles, amphibians, small mammals, birds, and insects, including those that play an important role in pollination, ground cover under, between, and adjacent to the rows of solar panels shall be required and shall consist of low-maintenance, native, non-fertilizer-dependent grasses and wildflowers.
(d)
Roadways within the site shall not be constructed of impervious materials and shall be designed to minimize the extent of roadways constructed and soil compaction.
(e)
All on-site utility and transmission lines shall, to the extent feasible, be placed underground.
(f)
All solar energy production facilities shall be designed and located in order to prevent reflective glare toward any inhabited buildings on adjacent properties as well as adjacent street rights-of-way.
(g)
All mechanical equipment of a principal solar energy production facility, including any structure for batteries or storage cells, shall be completely enclosed by a minimum eight-foot-high anchored mini-mesh chain-link fence with two-foot tip out and a self-locking gate. Said fence shall contain five-inch-high by sixteen-inch-wide grade-level cutouts every 75 feet to permit small animals to move freely into and out of the site. Landscape screening shall be provided in accordance with the landscaping provisions of this chapter.
(h)
A solar energy production facility connected to the utility grid shall provide a "proof of concept letter" from the local utility company acknowledging the solar energy production facility will be interconnected to the utility grid in order to sell electricity to the public utility entity.
(i)
All debris and materials generated by site construction shall be removed from the site.
(j)
All lighting shall conform to the Town's exterior lighting standards.
(k)
Fire access roads and access for fire apparatus equipment shall be provided, as approved by the Town Fire Marshal.
(l)
All stormwater and drainage shall be contained on site in accordance with the Town's green landscaping and design standards.
(5)
Signs. A sign not to exceed 2.25 square feet shall be attached to a fence adjacent to the main access gate and shall list the facility name, owner and phone number. A clearly visible warning sign concerning voltage must be placed at the base of all pad-mounted transformers and substations.
C.
Solar energy collection systems. A solar collection system may be permitted as an accessory use in all commercial, J Business, J Business 2, J Business 4, J Business 5, J Business 6, L Industrial 1, L Industrial 2, MF, PRC, PRCHC and NH-H Districts. All applications shall be subject to § 85-113M and shall comply with all the requirements. The following may be permitted:
D.
Incentives. The Board of Appeals is authorized to grant the following incentives, provided that the applicant can demonstrate compliance with the following:
(1)
FAR incentive. Solar collection systems as an accessory use in commercial and industrial zones may increase the maximum permitted FAR by 20% by the Board of Appeals. The applicant shall demonstrate that the increase in welfare, comfort, convenience or order of the use of the property, adjacent properties or the Town will not be adversely affected.
(2)
Required parking reduction incentive. Solar collection system as an accessory use in commercial and industrial zones may reduce minimum required off- and on-street parking requirements by a maximum of 20%, provided that the applicant can demonstrate that adequate and safe parking will still be provided and that the site is a minimum of three acres.
E.
Abandonment. All applications for a solar energy production facility shall be accompanied by a decommissioning plan to be implemented upon abandonment, or cessation of activity, or in conjunction with removal of the solar energy production facility or structure. Prior to issuance of a building permit, the owner or operator of the facility or structure shall post a performance bond or other suitable guarantee in a face amount of not less than 150% of the estimated cost to ensure removal of the facility or structure in accordance with the decommissioning plan described below. The form of the guarantee must be reviewed and approved by the Town Attorney, and the guarantee must remain in effect until the system is removed. Prior to removal of a solar energy production facility or structure, a demolition permit for removal activities shall be obtained from the Town of Brookhaven.
(1)
If the applicant ceases operation of the solar energy production facility or structure for a period of 12 months, or begins but does not complete construction of the project within 12 months after receiving final site plan approval, the applicant will submit a decommissioning plan that ensures that the site will be restored to a useful, nonhazardous condition without delay, including but not limited to the following:
(a)
Removal of aboveground and below-ground equipment, structures and foundations.
(b)
Restoration of the surface grade and soil after removal of equipment.
(c)
Revegetation of restored soil areas with native seed mixes, excluding any invasive species.
(d)
The plan shall include a time frame for the completion of site restoration work.
(2)
In the event that construction of the solar energy production facility or structure has been started but is not completed and functioning within 18 months of the issuance of the final site plan, the Town may notify the operator and/or the owner to complete construction and installation of the facility within 180 days. If the owner and/or operator fails to perform, the Town may notify the owner and/or operator to implement the decommissioning plan. The decommissioning plan must be completed within 180 days of notification by the Town.
(3)
Upon cessation of activity of a fully constructed solar energy production facility or structure for a period of one year, the Town may notify the owner and/or operator of the facility to implement the decommissioning plan. Within 180 days of notice being served, the owner and/or operator can either restore operation equal to 80% of approved capacity or implement the decommissioning plan.
(4)
If the owner and/or operator fails to fully implement the decommissioning plan within the 180-day time period and restore the site as required, the Town may, at its own expense, provide for the restoration of the site in accordance with the decommissioning plan and may, in accordance with the law, recover all expenses incurred for such activities from the defaulted owner and/or operator. The cost incurred by the Town shall be assessed against the property, shall become a lien and tax upon said property, shall be added to and become a part of the taxes to be levied and assessed thereon, and enforced and collected with interest by the same officer and in the same manner as other taxes.
F.
Conflicts. In the event a conflict exists between the provisions herein and any other section of this chapter, the provisions of this section prevail.
§ 85-814 Battery energy storage system. [1]
[Added 2-13-2020 by L.L. No. 3-2020, effective 2-28-2020]
Battery energy storage systems shall be classified as follows:
A.
Tier 1 systems.
Battery Technology | Tier 1 Aggregate Capacity (kWh) |
|---|---|
Flow batteries | 20 to 599 |
Lead acid, all types | 70 to 599 |
Lithium, all types | 20 to 599 |
Nickel cadmium (Ni-Cd) | 70 to 599 |
Sodium, all types | 20 to 599 |
Other battery technologies | 10 to 599 |
B.
Tier 2 systems shall include any system with an aggregate capacity greater than or equal to 600 kWh.
§ 85-815 Permitted locations. [1]
[Added 2-13-2020 by L.L. No. 3-2020, effective 2-28-2020; amended 2-22-2024 by L.L. No. 4-2024, effective 2-27-2024]
A.
A Tier 1 battery energy storage system may be permitted as a principal use in any J Business 2 and J Business 5 District when authorized by special permit from the Board of Appeals subject to the requirements of this chapter.
B.
A Tier 1 or Tier 2 battery energy storage system may be permitted as a principal use in any L Industrial 1, L Industrial 2, and L Industrial 4 District.
C.
Special permit criteria. The following special permit criteria are applicable to battery energy storage systems located in J Business 2 and J Business 5:
(1)
The minimum lot area shall be 40,000 square feet.
(2)
The minimum required width of road frontage shall be 100 feet.
(3)
The minimum required front yard setback shall be 50 feet.
(4)
The minimum required side yard setback shall be 25 feet, except as otherwise provided herein.
(5)
The minimum required rear yard setback shall be 25 feet, except as otherwise provided herein.
(6)
The maximum permitted FAR shall be 35%.
(7)
The maximum permitted height for all structures shall be 35 feet.
(8)
The minimum side yard and/or rear yard setback shall be 50 feet when adjacent to property zoned or used for residential.
(9)
The minimum perimeter buffer area shall be 25 feet, consisting of natural and undisturbed vegetation, supplemented with evergreen plantings in accordance with Town standards.
D.
Dimensional criteria. The following dimensional criteria are applicable to battery energy storage systems located in L Industrial 1, L Industrial 2, and L Industrial 4:
(1)
The minimum lot area shall be 40,000 square feet.
(2)
The minimum required width of road frontage shall be 100 feet.
(3)
The minimum required front yard setback shall be 50 feet.
(4)
The minimum required side yard setback shall be 10 feet; the minimum side yard setback shall be 25 feet when adjacent to property zoned or used for residential.
(5)
The minimum required rear yard setback shall be 50 feet.
(6)
The maximum permitted FAR shall be 35%.
(7)
The maximum permitted height for all structures shall be 50 feet.
§ 85-816 Design standards; application requirements. [1]
[Added 2-13-2020 by L.L. No. 3-2020, effective 2-28-2020]
A.
Utility lines and electric circuitry. All on-site utility lines shall be placed underground to the extent feasible, with the exception of the main service connection at the utility company right-of-way and any interconnection equipment, including poles.
B.
Signage.
(1)
Signage shall be in compliance with ANSI (American National Standards Institute) Z535, and shall state the type of technology associated with the battery storage system, any special hazards associated, the type of suppression system installed, and the twenty-four-hour emergency contact, including phone number.
(2)
Disconnect and other emergency shutoff information shall be clearly displayed on a light reflective surface, and a clearly visible warning sign concerning voltage shall be placed at the base of all pad-mounted transformers and substations, subject to the requirements of NEC (National Electric Code).
C.
Lighting. Lighting shall be limited to that minimally required for safety, and operation, and shall comply with the exterior lighting standards set forth in Town Code.
D.
Vegetation and clearing. All combustible vegetation and growth shall be cleared from the area within 10 feet of the perimeter the battery energy storage system and equipment. Removal of trees shall be minimized to the extent possible.
F.
One-line electric diagram. A one-line electric diagram detailing the battery energy storage system layout, associated components, and electrical interconnection methods, with all NEC-compliant disconnects and overcurrent devices, shall be required.
G.
Safety.
(1)
System certification. Battery energy storage systems and equipment shall be listed by a nationally recognized testing laboratory to UL 9540 or CAN 9540 standards.
(2)
Battery energy storage systems and equipment shall have required working space clearances, and electric circuitry shall be within the weatherproof enclosures marked with the environmental rating suitable for the type of exposure in compliance with NFPA (National Fire Protection Association) 70.
H.
Decommissioning plan.
(1)
All applications for a battery energy storage system shall be accompanied by a decommissioning plan to be implemented upon abandonment, or cessation of activity, or in conjunction with removal of the battery energy storage system or structure. Prior to issuance of a building permit, the owner or operator of the facility or structure shall post a performance bond or other suitable guarantee in a face amount of not less than 150% of the estimated cost, as determined by the Town Engineer, to ensure removal of the system or structure in accordance with the decommissioning plan described below. The form of the guarantee must be reviewed and approved by the Town Engineer and Town Attorney, and the guarantee must remain in effect until the system is removed. Review of the guarantee by the Town Engineer and Town Attorney shall be paid from an escrow established by the applicant. Prior to removal of a battery energy storage system or structure, a demolition permit for removal activities shall be obtained from the Town of Brookhaven.
(2)
The decommissioning plan shall ensure that the site will be restored to a useful, nonhazardous condition without delay, with details including, but not limited to, the following:
(a)
The manner in which the battery energy storage system will be decommissioned;
(b)
Removal of aboveground and below ground equipment, structures and foundations;
(c)
Restoration of the surface grade and soil after removal of equipment;
(d)
Revegetation of restored soil areas with native seed mixes, excluding any invasive species;
(e)
The time frame for the completion of site restoration work.
§ 85-817 Commissioning and decommissioning.
[Added 2-13-2020 by L.L. No. 3-2020,[1] effective 2-28-2020]
A.
Commissioning. Commissioning shall be conducted by a New York State licensed professional engineer or registered architect, after the installation is complete but prior to a certificate of occupancy being issued.
B.
Decommissioning.
(1)
In the event that construction of the battery energy storage system or structure has been started but is not completed and functioning within 18 months of the issuance of final site plan approval, the Town may notify the operator and/or the owner to complete construction and installation of the facility within 180 days. If the owner and/or operator fails to perform, the Town may notify the owner and/or operator to implement the decommissioning plan. The decommissioning plan must be completed within 180 days of notification by the Town.
(2)
Upon cessation of operation of a fully constructed battery energy storage system or structure for a period of one year, the Town may notify the owner and/or operator of the facility to implement the decommissioning plan. Within 180 days of notice being served, the owner and/or operator can either restore operations, or implement the decommissioning plan.
(3)
If the owner and/or operator fails to fully implement the decommissioning plan within the 180-day time period and restore the site as required by the decommissioning plan, the Town may default the performance bond or guarantee, and utilize such funding to restore the site pursuant the decommissioning plan. In the alternative, the Town may, at its own expense, provide for the restoration of the site in accordance with the decommissioning plan and may, in accordance with the law, recover all expenses incurred for such activities from the defaulted owner and/or operator. The cost incurred by the Town shall be assessed against the property, shall become a lien and tax upon said property, shall be added to and become a part of the taxes to be levied and assessed thereon, and enforced and collected with interest by the same officer and in the same manner as other taxes.
§ 85-818 Exemptions.
[Amended 8-6-2015 by L.L. No. 15-2015, effective 8-11-2015; 10-27-2016 by L.L. No. 23-2016, effective 11-7-2016]
§ 85-819 Severability.
[Amended 8-6-2015 by L.L. No. 15-2015, effective 8-11-2015; 10-27-2016 by L.L. No. 23-2016, effective 11-7-2016]
Should any provisions of this article be declared by the courts to be unconstitutional or invalid, such decision shall not affect the validity of this article as a whole or any part thereof other than the part so decided to be unconstitutional or invalid.