Elmsford City Zoning Code
§ 335-23
Special permit uses.
[Added 7-1-1968; amended 6-6-1983 by L.L. No. 7-1983; 5-1-2000; 5-16-2005 by L.L. No. 2-2005]
A.
Statement of purpose. All uses listed as subject to approval as set forth in this section are declared to possess characteristics of such unique and distinct form that each specific use shall be considered as an individual case, and they shall conform, but not be limited, to the following general requirements, as well as the pertinent specific requirements.
B.
General provisions. The special uses listed hereunder for which conformance to additional standards is required by this Zoning Chapter shall be deemed to be permitted uses subject to the satisfaction of the requirements and standards set forth herein, in addition to all other requirements as set forth in this Zoning Chapter.
C.
Application, public hearing and general standards. Application for required special permits shall be made to the Board of Trustees together with such fees as are set forth in the Master Fee Schedule of the Village of Elmsford as maintained by the Village Clerk, as same may be amended from time to time by resolution of the Board of Trustees. Each such application shall be referred to the Planning Commission for a report, which report shall be rendered prior to the date of public hearing on the application. A public hearing for the special permit application shall be held within 62 days of receipt of a complete application and shall require the same notice required by law for zoning amendments. Within 62 days of the close of the public hearing, the Board of Trustees shall decide whether to approve, approve with modifications or disapprove the special permit application. The time at which the Board of Trustees must arrive at its decision may be extended at the request of the applicant or as necessary for the Board of Trustees to complete all necessary environmental review requirements pursuant to the State Environmental Quality Review Act (SEQRA). A copy of the Board's decision shall be filed in the office of the Village Clerk within five business days after such decision is rendered, and a copy thereof mailed to the applicant. The Board of Trustees may authorize the issuance of a permit, provided that it shall find that all of the following conditions and standards have been met, and may deny such application which in its judgment is not in accordance with said conditions and standards:
(1)
The location and size of the use, the nature and intensity of the operations and traffic involved in or conducted in connection with it, the size of the site in relation to it, and the location of the site with respect to the type, arrangement and capacity of streets giving access to it, are such that it will be in harmony with the appropriate and orderly development of the district in which it is located.
(2)
The location, nature and height of buildings, walls and fences, and the nature and extent of the landscaping and screening on the site, as existing or proposed, are such that the use will not hinder or discourage the appropriate development and use of adjacent land and buildings.
(3)
Operations in connection with any special use will not be more objectionable to nearby properties by reason of noise, fumes, vibrations, lighting or flashing of lights, than would be the operations of any permitted use not requiring a special permit,
(4)
Parking areas will be of adequate size for the particular use properly located and suitably screened from any adjoining residential uses, and the entrance and exit drives shall be laid out so as to achieve maximum safety.
(5)
Each special use shall be of such character, intensity, size and location that in general it will be in harmony with the orderly development of the district in which the property is situated and will not be detrimental to the orderly development of adjacent districts.
(6)
Each special use sought in a residential district shall be so located on the lot involved that it shall not impair the use, enjoyment and value of adjacent residential properties.
(7)
The nature and intensity of a special use sought in a residential district and the traffic generated by it shall not be hazardous, incongruous or detrimental to the prevailing residential character of the neighborhood.
(8)
Each special use in a business district shall be harmonious with the district in which its location is sought, shall not create undue pedestrian or vehicular traffic hazards and shall not include any display of signs, noise, fumes or lights that will hinder the normal development of the district or impair the use, enjoyment and value of adjacent land and buildings.
D.
Required plan. A plan for the proposed development of a site for a permitted special use shall be submitted with an application for a special permit. The plan shall be drawn to some convenient scale, and shall show the location of all buildings, parking areas, traffic access and circulation drives, open spaces, landscaping, topography, special features, and any other pertinent information, including such information about neighboring properties as may be necessary to determine and provide for the enforcement of this Zoning Chapter.
E.
Conditions and safeguards. The Board of Trustees shall attach such conditions and safeguards to the special permit as are necessary to assure continual conformance to all applicable standards and requirements.
F.
Time limitations of permit.
(1)
The Board of Trustees may issue a special permit for a stated period, subject to an application for renewal or extension of said permit.
(2)
Two violations of any condition or safeguard imposed by the Board of Trustees may be the basis for the Board of Trustees to deny the renewal or extension of a special permit.
G.
Expiration. A special permit shall be deemed to authorize only the particular use or uses specified in the permit and shall expire if said use or uses shall cease for more than six months for any reason.
H.
Existing violations. No permit shall be issued for a special use for a property upon which there is an existing violation under any provision of the Code of the Village of Elmsford, including without limitation, this Zoning Chapter, and/or the Uniform Fire Prevention and Building Construction Code of the State of New York.
I.
Preexisting uses deemed to be conforming. Any lawful use existing at the time of the adoption of this chapter or any amendment thereof which, if newly created under this chapter, would require a special permit in the district in which it is situated, may be continued and shall be deemed to be a conforming use, but any modification, change or extension thereof shall be subject to the issuance of a special permit as provided in this chapter.
J.
Special permits shall be required for the following:
(1)
Wireless telecommunications services facility.
(a)
The following special permit standards and requirements shall apply to all wireless telecommunications services facilities.
(b)
Purpose. The purpose of these special regulations is to reasonably control the location, construction and maintenance of wireless telecommunications facilities in order to encourage the siting of wireless telecommunications services facilities in nonresidential areas and to protect, to the maximum extent practicable, aesthetic impacts, the property values of the community, the health and safety of citizens, and a citizen's ability to receive communication signals without interference from other communication providers, while not unreasonably limiting competition among telecommunications providers.
(c)
Use. Except as provided hereinafter, no wireless telecommunications services facility shall be located, constructed or maintained on any lot, building, structure or land area in the Village of Elmsford, except in conformity with the requirements of this chapter and all other applicable regulations.
(d)
Location and access. Subject to the Board of Trustees' review and evaluation of technological, structural, safety and financial considerations associated with alternative locations for the siting of wireless telecommunications services facilities, the following locational priorities shall apply in the order specified, consistent with the Village's objective to create the least amount of aesthetic impact and preserve both the scenic values and the property values of the Village:
[1]
Collocation on existing wireless telecommunications services facilities previously approved by a duly authorized board of the Village, as identified on an inventory of existing wireless telecommunications services facilities which shall be maintained by the Village (the Eligible Collocation Sites Inventory). Collocation shall be required unless it has been demonstrated to the satisfaction of the Board of Trustees that:
[a]
None of the sites identified on the Eligible Collocation Sites Inventory within the service area can accommodate the proposed wireless telecommunications services facility in a reasonably financially and technologically feasible manner consistent with the wireless communications service carrier's system requirements;
[b]
None of the sites identified on the Eligible Collocation Sites Inventory within the service area can accommodate the proposed wireless telecommunications services facility with respect to structural or other engineering limitations, including frequency incompatibilities; or
[c]
The owners of the sites identified on the Eligible Collocation Sites Inventory within the service area lawfully refuse to permit the applicant use of the site.
[2]
Nonresidential sites, buildings and structures located in business districts and industrial districts containing any other type of existing communications antenna previously approved by a duly authorized board of the Village.
[3]
Other lands in business districts and industrial districts.
[4]
Lands used for nonresidential purposes in a residence district.
[5]
Other lands in a residence district.
(e)
All new wireless communication services facilities and premises shall be of proper size, location and design to accommodate collocation of other service providers' facilities, unless otherwise permitted by the Board of Trustees. Wherever possible, such facility shall be attached to an existing building or structure. To the maximum extent practicable, existing roadways shall be used to provide access to the site of a wireless telecommunications services facility.
(f)
Setbacks. Wireless telecommunications services facilities, except those structurally mounted to an existing building or structure, shall be located not less than two times the otherwise applicable setback requirements for principal structures for the district in which the property is located, or the height of the facility plus the otherwise applicable setback requirements for principal structures for the district in which the property is located, whichever shall be greater. Wireless telecommunications services facilities structurally mounted to the roof of an existing building or structure shall be set back from the side of the building or structure so as to minimize its visibility, but in no case less than 10 feet.
(g)
Freestanding structures. No freestanding wireless telecommunications services facility shall be permitted except for a monopole.
(h)
Height limitations. Notwithstanding the following height limitations, in no case shall a wireless telecommunications services facility exceed the minimum height reasonably necessary to accomplish the purpose it is proposed to serve.
[1]
The height of any antennas, or other associated equipment, structurally mounted as part of a wireless telecommunications services facility shall not exceed by more than 15 feet the highest point of the existing structure on which such antennas or equipment are affixed.
[2]
The height of any monopole utilized in a wireless telecommunications services facility shall not exceed 100 feet in height measured from the highest point of such facility to the finished grade elevation of the ground immediately adjacent to the structure.
(i)
Visual mitigation. The applicant/provider shall prepare a visual impact assessment of the proposed wireless telecommunications services facility based upon appropriate modeling, photography and other pertinent analytical techniques as required by the Board of Trustees. Landscaping and/or other screening and mitigation, including but not limited to architectural treatment, use of neutral or compatible coloring and materials, or alternative construction and transmission technologies shall be required to minimize the visual impact of such facility from public thoroughfares, important viewsheds and vantage points and surrounding properties to the extent practicable, as determined by the Board of Trustees. No signs shall be erected on any wireless telecommunications services facility except as may be required by the Board of Trustees for security or safety purposes.
(j)
Lighting. The wireless telecommunications services facility shall not be artificially lighted unless otherwise required by the Federal Aviation Administration or other federal, state or local authority.
(k)
Operational characteristics. Unless otherwise superseded by the Federal Communications Commission (FCC), the design and use of the proposed wireless telecommunications services facility, including its cumulative impact with other existing and approved facilities, shall be certified to conform with the maximum NIER exposure standards promulgated by the FCC, as amended. Said certification shall include a report by a licensed professional electrical engineer with expertise in radio communication facilities and/or health physicist acceptable to the Board of Trustees. Except as otherwise provided by law, the applicant shall provide an annual certification of conformance with the applicable emissions standards and the requirements and conditions of special permit and site plan approval. Additionally, copies of certification reports shall be submitted to the Board of Trustees whenever they are required to be submitted to the FCC. The Board of Trustees may hire a qualified professional of its choosing to review and confirm such initial and annual certification report, the cost of which shall be reimbursed by the applicant in accordance with the escrow account procedures established for the reimbursement of professional review fees for subdivision, site plan and special permit applications. Any violation of the emissions standards shall require immediate discontinuation and correction of the use responsible for the violation. Any such violation of these requirements of this Chapter or the conditions of special permit or site plan approval shall be deemed to be an offense punishable by fine and/or imprisonment in accordance with § 335-24 of this chapter.
(l)
Noise. Noise-producing equipment shall be sited and/or insulated to prevent any detectable increase in noise above ambient levels as measured at the property line.
(m)
Utility service. Electrical and land-based telephone lines extended to serve the wireless telecommunications services facility sites shall be installed underground.
(n)
Safety provisions. A wireless telecommunications services facility shall be designed and. erected so that in the event of structural failure, it will fall within the required setback area and, to the maximum extent possible, away from adjacent development.
(o)
Security provisions. A security program shall be formulated and implemented for the site of a wireless telecommunications services facility. Such program may include physical features such as fencing, anti-climbing devices or elevating ladders on monopoles and/or monitoring either by staff or electronic devices to prevent unauthorized access and vandalism.
(p)
Annual structural inspection and report. A monopole over 50 feet in height shall be inspected annually at the expense of the service provider by a licensed professional engineer, or at any other time upon a determination by the Building Inspector or other Village designated code enforcement officer that the monopole may have sustained structural damage, and a copy of the inspection report shall be submitted to the said Building Inspector or other Village designated code enforcement officer as the case may be.
(q)
Lease agreement. In the case of an application for approval of a wireless telecommunications services facility to be located on lands owned by a party other than the applicant or the Village, a copy of the lease agreement with the property owner together with any subsequent modifications thereof, shall be provided to the Board of Trustees, and a copy shall be filed with the Village Clerk.
(r)
Removal. A wireless telecommunications services facility shall be dismantled and removed from the property on which it is located within 60 days when it has been inoperative or abandoned for a period of six (6) months or more from the date on which it ceased operation. The applicant shall provide to the Village written notification, including identification of the date the use of the facility was discontinued or abandoned by one or more of the service providers, acknowledgment of the requirement to remove the facility and identification of the plans for the future of the facility.
(s)
Application procedure.
[1]
An application for approval of a wireless telecommunications services facility shall be submitted on the relevant forms for special use permit and site plan approval. Site plan approval by the Board of Trustees in accordance with § 335-28 of this chapter shall be required.
[2]
The operator of the wireless telecommunications service shall submit a certificate of public utility unless it can be demonstrated to the satisfaction of the Board of Trustees that the operator of such facility is exempt from such requirement pursuant to New York State law. The operator of such facility shall also demonstrate to the satisfaction of the Board of Trustees that there is a compelling public need for such facility at the location(s) proposed by the applicant. Such demonstration shall include the preparation of existing and master effective service area plans which:
[a]
Minimize the number of such facilities within the service area(s);
[b]
Maximize collocation of wireless telecommunications services facilities;
[c]
Identify all existing and proposed wireless telecommunications facilities which impact upon the service area covering the Village of Elmsford, including but not limited to topographic maps of the Village with service coverage and service gap grids and all proposed and other functionally acceptable locations for such facility(ies); and
[d]
Analyze feasible alternatives to reasonably minimize the visual impacts and exposure levels.
[3]
Any application for a wireless telecommunications services facility shall include a statement and appropriate documentation demonstrating that the Village's existing facilities inventory has been reviewed and, to the extent relevant to provide wireless telecommunications services in the area which is the subject of such application, that all reasonable efforts have been made to collocate such facility on all sites identified in such existing facilities inventory and all other existing sites with communication antennas within the service area.
[4]
As a condition of special permit approval, the applicant shall be required to provide a written agreement, in recordable form suitable for filing and prepared to the satisfaction of the Village Attorney, acknowledging that it shall be required to allow the collocation of other future wireless telecommunications service facilities unless otherwise unreasonably limited by technological, structural or other engineering considerations.
[5]
Where collocation of a wireless telecommunications services facility is proposed the added wireless telecommunications services facility shall be permitted, as an amendment to the existing special use permit for the site containing such facility, by submission of an application for a building permit and without the need for an application for an amended special permit or site plan approval, provided such facility meets all of the otherwise applicable requirements of this chapter and no physical modification other than the attachment of the antennas and the installation of associated equipment to be located on site is required. An amended written narrative and certification report indicating conformance with all of the special permit standards and conditions of site development plan approval shall be provided in addition to all required information in support of the required building permit. An as-built drawing of the modified facilities shall be filed with the Building Department. The Building Inspector shall provide written notification to the Board of Trustees and the Planning Commission of the Village's receipt of such building permit application.
[6]
The applicant and all future owners of the premises and the wireless telecommunications services facility shall at all times keep on file in the office of the Village Clerk the name, address, and telephone number of the owner and operator of such facility and of at least one individual who shall have authority to arrange for the maintenance of the premises and facility, and who shall be authorized to accept service of notices and legal process on behalf of the owner and operator(s) of the premises and facility and to bind the owner to any settlement, fine, judgment, or other disposition which may result from any civil or criminal action or proceeding instituted by the Village against such owner and/or operator(s).
(t)
In order to further facilitate the shared use of public utilities and wireless telecommunications services facilities, the Board of Trustees may, by resolution, waive or modify any of the special permit standards and criteria contained herein.
(u)
All wireless telecommunications facilities shall be constructed, operated, maintained, repaired, modified or restored in strict compliance with all current technical, safety and safety-related codes adopted by the Village, county, state or United States, including but not limited to the most recent editions of the National Electrical Safety Code and the National Electrical Code, as well as accepted and responsibly workmanlike industry practices and recommended practices of the National Association of Tower Erectors. The codes referred to are codes that include, but are not limited to, construction, building, electrical, fire, safety, health and land use codes. In the event of a conflict between or among any of the preceding, the more stringent shall apply.
(2)
Public garages, major vehicle repair shops, gasoline service stations and filling stations.
[Added 6-4-2007 by L.L. No. 4-2007]
(a)
A public garage, major vehicle repair shop, gasoline service station or filling station shall be permitted by special permit in the Light Industrial Districts only, and then only after a public hearing held at the direction of the Board of Trustees in accordance with this § 335-23. The Board of Trustees, in acting upon an application for such special permit, may approve the same if it shall determine in its judgment that, in addition to the standards set forth in § 335-23C:
[1]
The area lacks such facilities or is inadequately served by existing facilities.
[2]
The proposed use is in the public interest, will not create undue fire or traffic hazards, impair the character of the neighborhood, or adversely affect property values, and the layout and design of the use is reasonably in keeping with the character of neighboring structures, thus tending to promote the stability of the area and taxes therefrom.
[3]
Such use shall not be within 200 feet of the entrance to any church, hospital, public library, public or duly licensed private school, nor shall any part of the building or equipment be within 25 feet of the boundary line of any residence district, nor within 15 feet of any street or building line.
[4]
The special permit use sought will be reasonably necessary for the promotion of public health, safety and general welfare.
[5]
It is appropriately located with respect to adequate streets for proper access, transportation facilities, water supply, fire and police protection, waste disposal, and other similar facilities.
[6]
The benefits to be derived by the granting of this special permit outweigh the disadvantages connected with the same.
(b)
Upon a finding that such general standards and the special standards set forth above and in § 335-23C have been met, the Board of Trustees may grant such special permit and, in so doing, may impose further standards and conditions deemed necessary to accomplish the reasonable application of said standards and in order to protect the interest of the general public as well as the interest of the neighboring property. Such permit shall not be transferable and shall not authorize the person to whom it is granted to conduct said business at any location other than that specified herein.
(c)
Any addition to, extension of or enlargement of any public garage, major vehicle repair shop or gasoline filling station presently existing, either in the Business or Light Industrial District, is hereby prohibited without the issuance of a special permit therefore from the Board of Trustees, permitting the same after a public hearing to be held before the Board of Trustees.
(d)
Annual inspection. Every use for which a special permit is issued under this § 335-23J(2) shall be subject to annual renewal which renewal, shall only be approved upon an inspection to be performed by the Building Inspector or other Village-designated code enforcement officer to confirm conformance of the use and operation of the facility with the applicable provisions of the Village Code and New York State Building Code.
(e)
Fees. In addition to any other fees required under this section, a fee as established by resolution of the Board of Trustees in the Master Fee Schedule which may be amended from time to time, per year or any part thereof shall be paid annually, in advance, by the owner on record, for an inspection under § 335-23J(2)(d) above.
(3)
Finished basements and finished attics in residential structures.
[Added 8-4-2015 by L.L. No. 5-2015; amended 11-18-2019 by L.L. No. 2-2019]
(a)
No residence shall have a finished basement or a finished attic, nor shall any unfinished basement or unfinished attic in an existing residence be finished unless and until the property owner thereof, or his designee shall have first obtained a special permit from the Board of Trustees relative to such basement or attic, as the case may be.
(b)
All finished basements and finished attics shall comply with the Residential Code of New York State, as same may be amended from time to time.
(c)
No basement or attic shall be constructed or finished to serve as a separate dwelling unit or separate living quarters, nor shall have such qualities or indicia of a separate dwelling unit or separate living quarters.
(d)
A finished basement may have either cooking facilities or a half-bathroom (shower and/or tub but no toilet, or a toilet but no shower or tub) but not both. Upon a showing of special circumstances, the Board of Trustees may, in its sole discretion, permit a full bathroom (shower and/or tub and toilet).
(e)
A finished attic may have a half-bathroom (shower and/or tub but no toilet, or a toilet but no shower or tub), but may not have cooking facilities.
(f)
For the purposes of this section, the term "cooking facilities" shall include, without limitation, kitchen appliances, installations or any area used, or designated to be used, for food preparation.
(g)
Inspection. It shall be a condition to all special permits issued under this § 335-23J(3) that the Building Inspector or other Village-designated code enforcement officer shall have the right to inspect the subject premises, including the finished basement or finished attic, as the case may be, one time per calendar year upon reasonable notice to the property owner, to confirm conformance of the use and operation of the facility with the applicable provisions of the Village Code, the New York State Building Code, and the special permit issued therefor and this chapter. In the event of any violation thereof, in addition to any other rights provided in this Village Code, the Board of Trustees may revoke the special permit theretofor granted in which event all finishes of any kind as well as interior nonbearing walls shall be removed from the subject basement or attic, as the case may be, or it may in its discretion permit the correction of the violation, whereupon the right of inspection shall increase to two times per calendar year. Subsequent violations shall also result in the revocation of the special permit or additional annual inspections upon correction of such violations as the Board of Trustees shall determine in its sole discretion.
(h)
Notwithstanding anything contained in this Code to the contrary, any finished basement or finished attic existing prior to the requirement herein to obtain a special permit therefor, which is or has been converted to a residential dwelling unit, which residential dwelling unit is not specifically identified as a separate residential dwelling unit in the certificate of occupancy or certificate of compliance for the residential structure in which it is located, shall require a special permit in accordance with this § 335-23J(3), failing which, the Building Department shall be authorized to revoke any certificate of occupancy or the certificate of compliance, as the case may be, for such residential structure.
(i)
Notwithstanding the provisions of § 335-23C of this chapter, special permits under this § 335-23J(3) shall not be subject to referral to the Planning Commission nor subject to public hearing.
(4)
Battery energy storage systems.
[Added 1-24-2022 by L.L. No. 3-2022]
(a)
Applicability.
[1]
The requirements of this subsection shall apply to all battery energy storage systems permitted, installed, or modified in the Village of Elmsford after the effective date of this subsection, excluding general maintenance and repair.
[2]
Modifications to, retrofits or replacements of an existing battery energy storage system that increase the total battery energy storage system designed discharge duration, power rating or storage capacity shall be subject to this subsection.
[3]
Battery energy storage systems shall be allowed as a Special Permit Use in the Village's RO One Family, 1/2 Acre Residence District, B-Business District and BOL-Business Overlay District and municipally owned properties subject to the site size requirements listed in § 335-23J(4)(d)[1].
(b) ANSI BATTERY ENERGY STORAGE MANAGEMENT SYSTEM BATTERY ENERGY STORAGE SYSTEM[1] [2] BATTERY or BATTERIES CELL COMMISSIONING DEDICATED-USE BUILDING[1] [2] [3] [4] [a] [b] ENERGY CODE FIRE CODE NATIONALLY RECOGNIZED TESTING LABORATORY (NRTL) NEC NFPA NON-DEDICATED-USE BUILDING NON-PARTICIPATING PROPERTY NON-PARTICIPATING RESIDENCE PARTICIPATING PROPERTY UNIFORM CODE
Definitions.
American National Standards Institute
An electronic system that protects energy storage systems from operating outside their safe operating parameters and disconnects electrical power to the energy storage system or places it in a safe condition if potentially hazardous temperatures or other conditions are detected.
One or more devices, assembled together, capable of storing energy in order to supply electrical energy at a future time, not to include a stand-alone twelve-volt car battery or an electric motor vehicle. A battery energy storage system is classified as a Tier 1 or Tier 2 battery energy storage system as follows:
Tier 1 battery energy storage systems have an aggregate energy capacity less than or equal to 600 kWh and, if in a room or enclosed area, consist of only a single energy storage system technology.
Tier 2 battery energy storage systems have an aggregate energy capacity greater than 600 kWh or are comprised of more than one storage battery technology in a room or enclosed area.
A single cell or a group of cells connected together electrically in series, in parallel, or a combination of both, which can charge, discharge, and store energy electrochemically. For the purposes of this subsection, batteries utilized in consumer products are excluded from these requirements.
The basic electrochemical unit, characterized by an anode and a cathode, used to receive, store, and deliver electrical energy.
A systematic process that provides documented confirmation that a battery energy storage system functions according to the intended design criteria and complies with applicable code requirements.
A building that is built for the primary intention of housing battery energy storage system equipment, is classified as Group F-1 occupancy as defined in the International Building Code, and complies with the following:
The building's only use is battery energy storage, energy generation, and other electrical grid-related operations.
No other occupancy types are permitted in the building.
Occupants in the rooms and areas containing battery energy storage systems are limited to personnel that operate, maintain, service, test, and repair the battery energy storage system and other energy systems.
Administrative and support personnel are permitted in areas within the buildings that do not contain battery energy storage system, provided the following:
The areas do not occupy more than 10% of the building area of the story in which they are located.
A means of egress is provided from the administrative and support use areas to the public way that does not require occupants to traverse rough areas containing battery energy storage systems or other energy system equipment.
The New York State Energy Conservation Construction Code adopted pursuant to Article 11 of the Energy Law, as currently in effect and as hereafter amended from time to time.
The fire code section of the New York State Uniform Fire Prevention and Building Code adopted pursuant to Article 18 of the Executive Law, as currently in effect and as hereafter amended from time to time.
A U.S. Department of Labor designation recognizing a private sector organization to perform certification for certain products to ensure that they meet the requirements of both the construction and general industry OSHA electrical standards.
National Electric Code.
National Fire Protection Association.
All buildings that contain a battery energy storage system and do not comply with the dedicated-use building requirements.
Any property that is not a participating property.
Any residence located on non-participating property.
A battery energy storage system host property or any real property that is the subject of an agreement that provides for the payment of monetary compensation to the landowner from the battery energy storage system owner (or affiliate) regardless of whether any part of a battery energy storage system is constructed on the property.
The New York State Uniform Fire Prevention and Building Code adopted pursuant to Article 18 of the Executive Law, as currently in effect and as hereafter amended from time to time.
(c)
General requirements.
[1]
A building permit and an electrical permit shall be required for installation of all battery energy storage systems.
[2]
All battery energy storage systems and all other buildings or structures that 1) contain or are otherwise associated with a battery energy storage system and 2) subject to the Uniform Code and/or the Energy Code shall be designed, erected, and installed in accordance with all applicable provisions of the Uniform Code, all applicable provisions of the Energy Code, NFPA 855: Standard for the Installation of Stationary Energy Storage Systems, and all applicable provisions of the codes, regulations, and industry standards as referenced in the Uniform Code, the Energy Code, and the Code of the Village of Elmsford.
[3]
Utility lines and electrical circuitry. All on-site utility lines shall be placed underground to the extent feasible and as permitted by the serving utility, with the exception of the main service connection at the utility company right-of-way and any new interconnection equipment, including without limitation any poles, with new easements and right-of-way.
[4]
Signage.
[a]
The signage shall be in compliance with American National Standards Institute (ANSI) Z535 and shall include the type of technology associated with the battery energy storage systems, any special hazards associated, the type of suppression system installed in the area of battery energy storage systems, and twenty-four-hour emergency contact information, including reach-back phone number.
[b]
As required by the National Electric 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 applicable related infrastructure.
[c]
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.
[d]
Vegetation and tree-cutting. Areas within battery energy storage systems shall be cleared of combustible vegetation and other combustible growth. Single specimens of trees, shrubbery, or cultivated ground cover such as green grass, succulents, or similar plants used as ground covers shall be permitted to be exempt provided that they do not form a means of readily transmitting fire.
[5]
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 outside wall of any non-participating residence or occupied community building. 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.
(d)
Specific special permit standards.
[1]
Site size: in R-O One-Family and 1/2 Acre Residence Districts, a property with a minimum of three acres; in the B-Business District, the BESS lots under common ownership of not less than four acres; in the Business Overlay District on the south side of Route 119 west of the intersection with Nob Hill Drive and on the north side of Route 119 west of the ramp from Exit 8-A of Interstate 87; on municipally owned lands not less than three acres in size. Other than the R-O District, a BESS must be located a minimum of 200 linear feet from the any residential lot line located in the Village of Elmsford.
[2]
Height. Battery energy storage systems shall comply with the building height limitations of the underlying zoning district, but in no event shall exceed 25 feet in height.
[3]
Fencing requirements. Battery energy storage systems, including all mechanical equipment, shall be enclosed by a fence with a self-locking gate to prevent unauthorized access.
[4]
Screening and visibility. Battery energy storage systems shall have views minimized from adjacent properties to the extent reasonably practicable using architectural features, earth berms, landscaping, or other screening methods that will harmonize with the character of the property and surrounding area and not interfering with ventilation or exhaust ports.
[5]
Decommissioning plan. The applicant shall submit a decommissioning plan, developed in accordance with the Uniform Code, to be implemented upon abandonment and/or in conjunction with removal from the facility. The decommissioning plan shall include:
[a]
A narrative description of the activities to be accomplished, including who will perform that activity and at what point in time, for complete physical removal of all battery energy storage system components, structures, equipment, security barriers, and transmission lines from the site.
[b]
Disposal of all solid and hazardous waste in accordance with local, state, and federal waste disposal regulations.
[c]
The anticipated life of the battery energy storage system.
[d]
The estimated decommissioning costs and how said estimate was determined.
[e]
The method of ensuring that funds will be available for decommissioning and restoration.
[f]
The method by which the decommissioning cost will be kept current.
[g]
The manner in which the site will be restored, including a description of how any changes to the surrounding areas and other systems adjacent to the battery energy storage system, such as, but not limited to, structural elements, building penetrations, means of egress, and required fire detection suppression systems, will be protected during decommissioning and confirmed as being acceptable after the system is removed.
[h]
A listing of any contingencies for removing an intact operational energy storage system from service, and for removing an energy storage system from service that has been damaged by a fire or other event.
[6]
Decommissioning fund.
[a]
The owner and/or operator of the energy storage system, shall continuously maintain a fund or security payable to the Village of Elmsford, in a form approved by the Village of Elmsford for the removal of the battery energy storage system. The fund or security shall cover projected costs of i) removal of battery energy storage system cabinets, ancillary equipment, and overhead power lines, ii) disposal of solid and hazardous materials, iii) site restoration (including clean-up from soil or other environmental contamination or pollution) and iv) other decommissioning costs, at the applicant's expense, be obtained prior to beginning construction and maintained until the completion of decommissioning and site restoration.
[b]
The security may consist of a letter of credit or bond. The letter of credit should be issued by a financial institution or surety company licensed to do business in the State of New York, and presentable for payment in Westchester County or New York City. At the time of each renewal, the credit rating of the issuer shall be satisfactory to the Village Comptroller.
(e)
Site plan application. For a Tier 2 battery energy storage system requiring a special use permit, site plan approval shall be required. Any site plan application shall include the following information:
[1]
Property lines and physical features, including roads, for the project site.
[2]
Proposed changes to the landscape of the site, grading, vegetation clearing and planting, exterior lighting, and screening vegetation or structures.
[3]
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.
[4]
A preliminary equipment specification sheet that documents the proposed battery energy storage system components, inverters and associated electrical equipment that are to be installed. A final equipment specification sheet shall be submitted prior to the issuance of building permit.
[5]
Name, address, and contact information of proposed or potential system installer and the owner and/or operator of the battery energy storage system. Such information of the final system installer shall be submitted prior to the issuance of building permit.
[6]
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.
[7]
Zoning district designation for the parcel(s) of land comprising the project site.
[8]
Commissioning plan. Such plan shall document and verify that the system and its associated controls and safety systems are in proper working condition per requirements set forth in the Uniform Code. Where commissioning is required by the Uniform Code, battery energy storage system commissioning shall be conducted by a New York State (NYS) licensed professional engineer 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 the Uniform Code shall be provided to the Building Inspector prior to final inspection and approval and maintained at an approved on-site location.
[9]
Fire safety compliance plan. Such plan shall document and verify that the system and its associated controls and safety systems are in compliance with the Uniform Code.
[10]
Operation and maintenance manual. Such plan shall describe continuing battery energy storage system maintenance and property upkeep, as well as design, construction, installation, testing and commissioning information and shall meet all requirements set forth in the Uniform Code.
[11]
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 Village Board.
[12]
Prior to the issuance of the building permit or final approval by the Village Board, but not required as part of the application, engineering documents must be signed and sealed by a NYS licensed professional engineer.
[13]
Emergency operations plan. A copy of the approved emergency operations plan shall be given to the system owner, the local fire department, and local fire code official. A permanent copy shall also be placed in an approved location to be accessible to facility personnel, fire code officials, and emergency responders. The emergency operations plan shall include the following information:
[a]
Procedures for safe shutdown, de-energizing, or isolation of equipment and systems under emergency conditions to reduce the risk of fire, electric shock, and personal injuries, and for safe start-up following cessation of emergency conditions.
[b]
Procedures for inspection and testing of associated alarms, interlocks, and controls.
[c]
Procedures to be followed in response to notifications from the battery energy storage management system, when provided, that could signify potentially dangerous conditions, including shutting down equipment, summoning service and repair personnel, and providing agreed upon notification to Fire Department personnel for potentially hazardous conditions in the event of a system failure.
[d]
Emergency procedures to be followed in case of fire, explosion, release of liquids or vapors, damage to critical moving parts, or other potentially dangerous conditions. Procedures can include sounding the alarm, notifying the Fire Department, evacuating personnel, de-energizing equipment, and controlling and extinguishing the fire.
[e]
Response considerations similar to a safety data sheet (SDS) that will address response safety concerns and extinguishment when an SDS is not required.
[f]
Procedures for dealing with battery energy storage system equipment damaged in a fire or other emergency event, including maintaining contact information for personnel qualified to safely remove damaged battery energy storage system equipment from the facility.
[g]
Other procedures as determined necessary by the Village of Elmsford Board of Trustees to provide for the safety of occupants, neighboring properties, and emergency responders.
[h]
Procedures and schedules for conducting drills of these procedures and for training local first responders on the contents of the plan and appropriate response procedures.
(f)
Safety.
[1]
System certification. Battery energy storage systems and equipment shall be listed by a nationally recognized testing laboratory to UL 9540 (Standard for Battery Energy Storage Systems and Equipment) (a copy of the UL 9540 listing and web link from certification database) or approved equivalent, with subcomponents meeting each of the following standards as applicable:
[a]
UL 1973 (Standard for Batteries for Use in Stationary, Vehicle Auxiliary Power and Light Electric Rail Applications);
[b]
UL 1642 (Standard for Lithium Batteries);
[c]
UL 1741 or UL 62109 (Inverters and Power Converters);
[d]
Certified under the applicable electrical, building, and fire prevention codes as required.
[2]
Site access. Battery energy storage systems shall be maintained in good working order and in accordance with industry standards. Site access shall be maintained, including snow removal at a level acceptable to the local emergency responders.
[3]
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 National Fire Protection Association (NFPA) 70.
[4]
Additional requirements.
[a]
Fireproof separation of the monitoring system from the batteries.
[b]
All fees of outside professionals related to the application shall be paid by applicant. All documentation shall be satisfactory to the Village Board, the Village Attorney or outside counsel selected by it, and the various Village departments having oversight over various conditions.
[c]
Failure to comply with any of the conditions of the approvals granted by the Village Board would be grounds for the approvals to be revoked only after all applicable cure periods have been exhausted.
(g)
Enforcement. Any violation of this Battery Energy Storage System Law shall be subject to the same enforcement requirements, including the civil and criminal penalties, provided for in the zoning or land use regulations of the Village of Elmsford.
K.
Payment in lieu of taxes (PILOT).
[Added 1-24-2022 by L.L. No. 3-2022[1]
(1)
Purpose. This subsection is adopted to ensure that the benefits of the community's battery energy storage system resources are available to the entire community, by promoting the installation of battery energy storage system equipment through a payment-in-lieu-of-taxes (PILOT), granting reduced costs to system developers and energy consumers, and providing a revenue stream to the entire community.
(3) ANNUAL PAYMENT ANNUAL PAYMENT DATE CAPACITY IMPERVIOUS SURFACES OWNER
Definitions. For the purpose of this § 335-23K, the following terms shall be defined as follows:
The payment due under a PILOT agreement entered into pursuant to Real Property Tax Law § 487(9).
January 1 of each year.
The manufacturer's nameplate capacity of the battery energy storage system as measured in kilowatts (kW) or megawatts (MW) AC.
Those surfaces, improvements and structures that cannot effectively infiltrate snow melt and stormwater into the ground, including but not limited to: parking areas, driveways, streets, sidewalks, areas of concrete, asphalt, gravel or other compacted aggregate, swimming pools, and areas covered by the outdoor storage of goods or materials which do not absorb water.
The owner of the property on which a battery energy system is located or installed, or their lessee, licensee or other person authorized to install and operate a battery energy storage system on the property.
(4)
PILOT required.
(a)
The owner of a property on which a battery energy storage system is located or installed (including any improvement, reconstruction, or replacement thereof), shall enter into a PILOT agreement with the Village consistent with the terms of this subsection, except for:
(b)
The lessee or licensee of any owner of a property required to enter into a PILOT agreement by this Subsection K(14)(a) which owns or controls the battery energy storage system, may enter into the PILOT agreement on behalf of the owner of the property and with the owner's authorization.
(c)
Upon receipt of any notification from an owner or other person of intent to install a battery energy storage system that is not exempt from the provisions of this subsection pursuant to Subsection A, the Building Inspector shall immediately, but in no case more than 60 days after receipt of the notification, notify the owner or other person of the mandatory requirement for a PILOT agreement pursuant to the terms of this subsection.
(d)
Nothing in this subsection shall exempt any requirement for compliance with state and local codes for the installation of any battery energy storage equipment. All battery energy storage systems must file a real property tax exemption application pursuant to Real Property Tax Law § 487 to receive a tax exemption.
(e)
In the event the battery energy storage system is initially a Tier 1 system, but due to subsequent improvements and/or additions of battery energy storage system equipment on the property the battery energy storage system(s) is deemed herein to be a Tier 2 system, the owner shall then be required to enter into a PILOT agreement for those years where the battery energy storage system(s) would be exempt from real property taxes under Real Property Tax Law § 487. In the event there is more than one battery energy storage system on the property, same shall be collectively deemed a Tier 2 system and the payment amount for each battery energy storage system will be separately calculated in accordance with § 336-5H.
(5)
Contents of PILOT agreements. Each PILOT agreement entered into shall include the following:
(a)
Name and contact information of the owner or other party authorized to act upon behalf of the owner of the battery energy storage system.
(b)
The SBL number for each parcel or portion of a parcel on which the battery energy storage system will be located.
(c)
A requirement for 15 successive annual payments, to be paid commencing on the first annual payment date after the effective date of the Real Property Tax Exemption granted pursuant to Real Property Tax Law § 487.
(d)
The capacity of the battery energy storage system, and that if the capacity is increased or decreased as a result of a system upgrade, replacement, partial removal or retirement of battery energy storage system equipment, the annual payments shall be increased or decreased on a pro rata basis for the remaining years of the agreement.
(e)
That the parties agree that under the authority of Real Property Tax Law § 487 the battery energy storage system shall be considered exempt from real property taxes for the fifteen-year life of the PILOT agreement.
(f)
That the PILOT agreement may not be assigned without the prior written consent of the Village, which consent may not be unreasonably withheld if the assignee has agreed in writing to accept all obligations of the owner, except that the owner may, with advance written notice to the Village but without prior consent, assign its payment obligations under the PILOT agreement to an affiliate of the owner or to any party who has provided or is providing financing to the owner for or related to the battery energy storage system, and has agreed in writing to accept all payment obligations of the owner.
(g)
That a notice of this agreement may be recorded by the owner at its expense, and that the Village shall cooperate in the execution of any notices or assignments with the owner and its successors.
(h)
That the annual payment shall be $4,500 per MW of capacity multiplied by the corresponding Village percentage of applicable taxes.
(i)
That the annual payment shall escalate 2% per year, starting with the second annual payment.
(j)
That if the annual payment is not paid when due, that upon failure to cure within 30 days, the Village may cancel the PILOT agreement without notice to the owner, and the battery energy storage system shall thereafter be subject to taxation at its full assessed value.
[1]
Editor's Note: This ordinance also redesignated former Subsection K as Subsection L.
L.
Revocation and modification.
(1)
All such special permits issued by the Board of Trustees may be subject to revocation or modification by the Board of Trustees upon a material breach or violation of any condition, term or safeguard imposed by the special permit or any other requirements imposed by this chapter on the property which is the subject of the special permit and which is committed during the existence of the special permit.
(2)
Prior to the revocation or modification of any special permit, the Board of Trustees shall, upon at least 10 days' notice to the property owner and/or person to whom the special permit was issued, cause to be mailed to the property owner and/or person to whom the special permit was issued, a notice stating the alleged breaches or violations warranting such action, and the time and place of the hearing to be held concerning the revocation or modification of the special permit. The property owner and/or the person to whom the special permit was issued shall be given an opportunity to be heard and to introduce the testimony of witnesses and documentary evidence, and shall be given an opportunity to prove by competent evidence that the premises are in full compliance with the terms, conditions and safeguards imposed by the special permit and all other requirements imposed by this chapter, and any mitigating circumstances surrounding the alleged breach or violation.
(3)
The action of the Board of Trustees relative to such revocation or modification shall be final. Upon revocation, it shall be unlawful to use or occupy any portion of the property for the use specified in the special permit.[2]
[2]
Editor's Note: Former § 80-21B, Public nuisances, added 11-2-1964, which immediately followed this subsection, was deleted 11-6-2000 by L.L. No. 7-2000.