Fairfield City Zoning Code

   This list does not permit uses in any zone. The list is to set standards for conditional uses only. Any conditional use not specifically listed in this subchapter shall be prohibited in all zones:

   (A)   Adult-oriented businesses;

   (B)   Bounce houses;

   (C)   Caretaker dwellings (non-farm uses);

   (D)   Child care facilities/centers;

   (E)   Self-storage and RV, boat or vehicle storage;

   (F)   Home based businesses;

   (G)   Special event uses;

   (H)   Industrial outdoor storage;

   (I)   Solar power plant–large;

   (J)   Battery energy storage systems; and

   (K)   Master plan developments.

(Prior Code, § 10.17.100) (Ord. 10242023, passed 10-24-2023; Ord. 2024-01, passed 4-11-2024; Ord. 2024-05, passed 5-9-2024) Penalty, see § 154.999

   Adult-oriented businesses are subject to the provisions of Chapter 113 of this code.

(Prior Code, § 10.17.100)

   Bounce houses or similar inflatables require special insurance. The following insurance requirements must be met to obtain a special event permit:

   (A)   A $3,000,000 ($1,000,000 per occurrence/$3,000,000 aggregate) commercial general liability insurance policy naming the town as an additional insured within that insurance policy;

   (B)   Damage to rented premises must be insured for at least $500,000;

   (C)   Medical expenses must be insured for at least $5,000;

   (D)   Personal injury must be insured for at least $500,000;

   (E)   Products must be insured for at least $500,000; and

   (F)   If you would like to use a bounce house or similar blow-up toy as a part of a special event, the bounce house vendor must also meet the following special insurance requirements:

      (1)   Obtain a general liability insurance policy of $3,000,000 ($1,000,000 per occurrence/ $3,000,000 aggregate) where the town is named as an additional insured;

      (2)   Obtain an insurance policy that has an athletic participation exclusion, or is one that will pay for bodily injury and property damage based not on the participants but on territory, policy period and unintentional injury;

      (3)   Some exceptions or adjustments may be made to the insurance requirements. These exceptions will be decided on a case-by-case basis;

      (4)   Pay additional fees that may be required for any damages on or to town property due to bounce houses;

      (5)   Obtain a special event permit. Bounce houses on town property require a permit and insurance, regardless of the amount of people in attendance; and

      (6)   Special events may also require a temporary mass gathering permit obtained through the County Health Department. A temporary mass gathering permit is required for any event that:

         (a)   Will have 500 or more attendees at one location (public or private) for five or more hours; and

         (b)   Is located at a facility that was not constructed for heavy use.

(Prior Code, § 10.17.100)

   The Town Council may approve a caretaker dwelling within zones providing the caretaker dwelling meets the following standards.

   (A)   The principal use served by the caretaker dwelling shall be a use allowed in the zone.

   (B)   The dwelling shall be incidental to the principal use.

   (C)   The dwelling shall be within the same structure as the principal use. As an exemption, the Town Council may, with a recommendation from the Planning Commission, determine that the dwelling is better suited, for reasons of security, as a separate building. All other conditions in this subchapter shall apply.

   (D)   The dwelling shall be a single-family dwelling.

   (E)   The dwelling shall be designed as a part of and in harmony with the architecture of the main building.

   (F)   The dwelling shall be a minimum of 500 square feet. The combined minimum size of the principal use building and the caretaker dwelling will not be less than 5,000 square feet. The caretaker dwelling will not be greater than 10% of the combined area of the principal use building and the caretaker dwelling. No caretaker dwelling shall be greater than 2,500 square feet.

   (G)   There shall be two additional parking spaces dedicated for the caretaker’s use.

   (H)   At least one of the occupants of the dwelling shall be a full-time employee of the business, operation or institution that qualifies for a caretaker dwelling.

   (I)   There are no health or safety issues, such as excess traffic, semi-trucks, toxic fumes or fire risk.

   (J)   No caretaker’s dwelling shall be rented, leased or otherwise hired out.

   (K)   Caretaker dwellings shall have a separate ingress and egress from the principal use building.

   (L)   The caretaker dwelling shall have a sprinkler fire suppression system.

   (M)   The aggregate square footage of all storage units will count toward the minimum square footage needed for the approval of a caretaker dwelling.

(Prior Code, § 10.17.100)

   Each application for a child care facility, center or home occupation must include and comply with the following criteria:

   (A)   Proof of application for a state child care license;

   (B)   Compliance with state, federal and local law;

   (C)   A design that does not include a front yard playground;

   (D)   A parking and traffic plan that adequately mitigates the adverse impacts of increased traffic in the neighborhood (if a facility or center);

   (E)   Child care providers as a home occupation may not exceed zone standards; and

   (F)   Child care providers as a home occupation may not provide services for more than two infants under the age of two at any given time.

(Prior Code, § 10.17.100)

   Home based businesses are subject to the provisions of Chapter 112 of this code.

(Prior Code, § 10.17.100)

   All self-service storage facilities (mini-warehouses) and recreational vehicle storage facilities shall be designed, constructed, operated and occupied in accordance with the following.

   (A)   All goods and wares shall be stored within an enclosed building, except that boats, travel trailers, motor homes and automobiles in running order may be stored in screened exterior areas which shall have been shown on the site plan and approved for that purpose.

   (B)   No individual units shall be larger than 12 feet by 50 feet.

   (C)   Any storage of partially dismantled, wrecked or inoperable vehicles, trailers, campers, motor homes or junk is prohibited.

   (D)   Any repair, construction, reconstruction or manufacturing is prohibited.

   (E)   Any storage of hazardous materials, including, but not limited to, gasoline, paint, paint remover and similar flammable or hazardous materials, is prohibited.

   (F)   (1)   Self-storage facilities fronting public roadways, residential properties or public properties shall include screening that shall screen any storage areas on the site. Such screening shall be in compliance with the town’s landscaping ordinances. Screening shall be maintained in good condition with no advertising thereon, except as permitted by the town’s signage regulations, and shall include a barrier extending the full length of the property line.

      (2)   The screening may consist of either the solid facade of the storage structure or a fence, wall, landscaping or similar structure. If the barrier is to be provided by a fence or wall, the barrier shall be not less than six feet in height and shall be constructed of opaque material that will prevent the passage of light and debris. Where the barrier is to be provided by the building facade, said facades shall be in accordance with the setback requirements applicable to the zone in which it is located.

   (G)   Access to the compound area shall be sufficient for traffic, emergency and fire vehicles.

   (H)   Travelways will be approved by the Fire Chief.

   (I)   Travelways having a minimum of 25 feet in width when providing access to units on both sides of the travelway or 20 feet when providing access to units on one side only. The circulation system shall provide for access throughout the facility by continuous forward motion.

   (J)   No facility shall be approved without adequate fire protection.

   (K)   No individual units shall be supplied with water or sewer facilities.

   (L)   The design and improvement of the facility shall make adequate provision for stormwater and snow removal.

   (M)   The aggregate square footage of all storage units will count toward the minimum square footage needed for the approval of a caretaker dwelling.

(Prior Code, § 10.17.100)

   This section governs the operation of seasonal uses as well as one-time events.

   (A)   For the purpose of this section, a SPECIAL EVENT is defined as an activity or series of activities specific to an identifiable time and place, produced in conjunction with community organizations, often held on public property, and which may occur on a one-time or a recurring basis. Such events may include, but are not limited to, street closures, block parties, fundraisers, street parties, runs, rides, races, walks and other community events. They may occur on streets and/or sidewalks, parks and other town-owned property. They may also include mass gatherings, as defined in town ordinances. For the purposes of this subchapter, special events shall not include privately sponsored events which rent space inside town facilities. The following are special events that are subject to the following specific regulations and time limits, in addition to any regulations of this zone.

   (B)   Special event permits are required of any private function, such as, but not limited to, a fundraiser, party, race, oversized group more than 100 persons, picnic and the like, that utilizes town property, such as roads, sidewalks, parks and the like, in a way that may interfere with the public’s typical use of this property and/or requires the dedication of additional town staff or services.

   (C)   All special event applications must be submitted to the town. All applications are subject to review, and additional documentation may be required, including, but not limited to, proof of applicable insurance coverage pertaining to the event being held. All applications must be submitted a minimum of 30 days prior to said event for approval. A penalty or fine shall be assessed for not obtaining a special event permit when one is required (see the Town Fee Schedule). A copy of the event permit must be on-site during the event.

   (D)   Once the application has been approved, the following fees must be paid to obtain a special event permit:

      (1)   A special event review fee;

      (2)   Additional charges for police, fire or parks personnel as needed for the event (see the Town Fee Schedule for a breakdown); and

      (3)   A refundable deposit will be refunded after the event concludes if no damage has taken place.

(Prior Code, § 10.17.100)

   (A)   Purpose. The purpose of this section is to establish the minimum requirements and regulations for the placement, construction, modification and decommissioning of a solar power plant–large within the town (the “town”) and issuing a conditional use permit subject to reasonable conditions that promote and protect the public health, safety and welfare of the town while promoting the development of renewable energy resources.

   (B)   Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

      ABANDONED SOLAR ENERGY SYSTEM. Any solar power plant–large that remains nonfunctional or inoperative, meaning it is not being used to generate energy or is not maintained in compliance with the terms of an approved conditional use permit, for a continuous period of 180 days. A solar power plant–large that is nonfunctional or inoperative for any period of time as a result of an emergency or force majeure event, any maintenance, repair or repowering of the plant by the owner or operator and/or curtailment by an end user or power purchaser, or any other periods of nonuse that are planned or scheduled by the owner or operator of the plant or otherwise required by the power purchaser or transmission provider, shall not be deemed abandoned for the purposes of this section.

      APPLICANT. The person(s) or entity(ies) that submit an application to the town for a conditional use permit to install a solar power plant–large pursuant to this section.

      CONCENTRATING SOLAR THERMAL DEVICES. Systems that use lenses, mirrors or tracking systems to focus or reflect a large area of sunlight into a small area by a transfer of fluid or gas, which is used as a heat source for either a conventional power plant, such as a steam power plant, or a power conversion unit.

      DISTURBANCE ZONE. The area of a site directly impacted by the construction and operation of a solar power plant–large. Impacts within the DISTURBANCE ZONE may include, without limitation, reasonably anticipated detrimental effects to protected viewsheds, aquifers, water resources and wildlife habitat or migration corridors located on the site.

      HAZARDOUS WASTE. Any solid waste governed by the Resource Conservation and Recovery Act, Subtitle C, regulation.

      INTEGRATED PV. Photovoltaics incorporated into building materials, such as shingles.

      OFF-SITE IMPACTED AREA.

         (a)   The neighboring properties and roadways located adjacent to the disturbance zone that are reasonably anticipated to be detrimentally affected by glare produced by the operation of a solar power plant–large; and

         (b)   A protected viewshed that includes the disturbance zone and other areas outside the disturbance zone that are reasonably anticipated to be detrimentally affected by the solar power plant–large. Areas outside of the disturbance zone where a solar power plant–large may be visible are not considered within the OFF-SITE IMPACTED AREA solely by the fact that the plant is visible if there are no reasonably anticipated glare or visual impacts or reasonably anticipated impacts to a protected viewshed that includes the site.

      OPERATOR. The individual(s) or entity(ies) responsible for the overall operation and management of a solar power plant–large. As used in this section, the term OPERATOR may include both individuals and any form of legal entity, such as a corporation, partnership or limited liability company.

      OWNER. The individual(s) or entity(ies) which own all or a portion of a solar power plant–large. As used in this section, the term OWNER includes individuals and any form of legal entity, such as a corporation, partnership or limited liability company.

      PERSON. Individuals, partnerships, corporations, limited liability companies or other legal entities which can hold property and/or take legal action.

      PHOTOVOLTAIC or PV. Materials and devices that absorb sunlight and convert it directly into electricity.

      PHOTOVOLTAIC DEVICE. A system of components that generates electrical energy from sunlight by means of photovoltaic effect, whether or not the device is able to store the electric energy produced for later use.

      PROTECTED VIEWSHED. Any viewshed corridor located within the town that has been officially designated as a protected viewshed corridor under the Town Zoning Code.

      RATED CAPACITY. The maximum capacity of a solar power plant–large based on the sum total of each photovoltaic system’s nameplate capacity.

      SITE. The property where a solar energy project is constructed, and includes any disturbance zone as that term is defined in this section.

      SOLAR ENERGY PROJECT or PROJECT. A renewable energy project that either:

         (a)   Generates electricity from sunlight, consisting of one or more PV systems and other appurtenant structures and facilities within the boundaries of the site; or

         (b)   Utilizes sunlight as an energy source to heat or cool buildings, heat or cool water or produce mechanical power by means of any combination of collecting, transferring or converting solar-generated energy, and does not meet any of the following criteria:

            1.   Has a disturbance zone of less than two acres;

            2.   Is mounted on/over a building, parking lot or other previously disturbed area; or

            3.   Utilizes integrated PV only.

      SOLAR POWER PLANT–LARGE. A solar energy project intended to generate electric energy by converting sunlight, whether by solar devices or other conversion technology, for the sale, delivery, transmission or consumption of the generated energy by more than one end-user or by an end-user other than the owner or lessor of the property on which the solar energy project is constructed and operated. A SOLAR POWER PLANT–LARGE may also include one or more substations, energy storage facilities and/or transmission facilities and improvements. Any solar energy project which is proposed to be constructed on a lot of more than two acres in size will be deemed to be a SOLAR POWER PLANT–LARGE and subject to all of the permitting and evaluation criteria applicable to a solar power plant–large under this chapter. A solar energy project containing only transmission facilities and improvements may be considered a SOLAR POWER PLANT–LARGE if the electrical energy transmitted along the project was generated by solar devices or other conversion technology at an off-site location.

      SUBSTATION. Any combination of transformers, circuit breakers, lightning arrestors and associated equipment designed to either step up power generated by any solar energy project for transmission or to step down any power coming into a solar energy project from an external transmission system.

   (C)   Concentrating solar thermal devices disallowed. Concentrating solar thermal devices are not allowed in the town.

   (D)   Permitting and licensing.

      (1)   Restriction. A solar power plant–large may only be constructed if the town issues the owner/operator a conditional use permit and a solar power plant–large is designated as a conditional use in the applicable zoning district.

      (2)   Inspection fees. Any applicant for a conditional use permit under this subchapter will be required to cover the cost of inspection fees for inspections that shall be performed by a qualified third-party inspector not more than once a year following the completion of construction of a solar power plant–large. The amount of the inspection fees shall be reasonable and shall not exceed the actual costs incurred by the town to perform the inspection. Inspection fees will be a condition for issuance and/or renewal of any annual business license required by this code.

   (E)   Conditional use permit applications. In addition to the general requirements for a conditional use permit, an application for a solar power plant–large shall include the following information.

      (1)   Project description. A narrative identifying the applicant, owner and operator and describing the proposed solar energy project, including a detailed overview of the project and its location; the approximate estimated rated capacity of the solar power plant–large; the approximate number, representative types and expected footprint of solar equipment to be used or constructed; a description of any ancillary equipment, buildings and structures, if applicable; and an estimated construction schedule and project life.

      (2)   Site and development plans. The site and development plans shall include the following information:

         (a)   Property lines and setback lines;

         (b)   Existing and proposed buildings and structures, including the location(s) of the proposed PV and any other solar equipment;

         (c)   Existing and proposed access roads, drives, turnout locations and parking;

         (d)   The location of all substations, electrical cabling from the solar energy project to all substations, ancillary equipment, buildings and structures (including those within any applicable setbacks);

         (e)   Fencing or other methods of ensuring public safety;

         (f)   Areas of wildlife habitat and migration corridors and areas of historic, archeological and cultural resources within the disturbance zone and the off-site impacted area;

         (g)   Areas containing erodible slopes and soils, and/or which present concerns for water quality, landslide, severe erosion or high storm runoff potential;

         (h)   Historic, archeological and cultural resources;

         (i)   Existing utilities, pipelines and transmission lines; proposed utility lines; utility and maintenance structures; existing topographic contours; existing and proposed drainage ways; proposed grading; areas of natural vegetation removal;

         (j)   Any existing inhabitable structures and residentially-zoned lots within one-fourth mile of the project;

         (k)   Any floodplains or wetlands; and

         (l)   Additional information may be required, as determined by town officials or staff, such as a scaled elevation view and other supporting drawings or photographs of the proposed site; photos or other realistic simulations or modeling of the proposed solar energy project from potentially sensitive locations as deemed necessary by town officials to assess the visual impact of the project; a landscaping and screening plan, coverage map and additional information that may be necessary for a technical review of the proposal.

      (3)   Documentation of right to use site for proposed solar power plant–large. Documentation shall include proof of ownership or control over the site or legal proof of the owner’s/operator’s right to use the site in the manner requested. The applicant may redact sensitive financial or confidential business information from the documentation provided so long as doing so does not prevent town officials or staff from confirming the applicant’s legal right to utilize the site for the proposed purpose. Copies of recorded deeds or memoranda of leases and easements shall be deemed sufficient for the purpose of demonstrating site control under this chapter.

      (4)   Documentation of permits or permit applications. As a condition of approval of any conditional use permit pursuant to this section, the applicant shall be required to provide town staff with certified copies of all necessary permits to construct any solar power plant–large from the Federal Energy Regulatory Commission (FERG) and the State Public Service Commission (State PSC). The town may withhold approval of any building permits for a solar power plant–large if the applicant fails to provide copies of such required permits at the time the applicant applies for a building permit.

      (5)   Confirmation of commitment to purchase power. As a condition of approval of any conditional use permit pursuant to this subchapter, the applicant shall provide town staff with documentation demonstrating a commitment by a power purchaser to purchase 100% of the anticipated power to be generated by any solar power plant–large being proposed for permitting. The town may withhold approval of a building permit for a solar power plant–large if the applicant fails to provide such documentation at the time the applicant applies for a building permit. Documentation may include, without limitation, evidence that the applicant has been selected by a power purchaser to negotiate a power purchase agreement, a memorandum of an executed power purchase agreement, docket filings or other publicly available records of the State PSC or other regulatory agency with jurisdiction evidencing the approval of such agreement. The applicant shall not be required to provide a copy of its power purchase agreement to satisfy the requirements of this section.

      (6)   Local economic benefits. The applicant must provide an analysis of local economic benefits, describing estimated project cost, generated taxes, the percentage of construction dollars to be spent locally and the number of local construction and permanent jobs that are anticipated to be created as a result of the project. In addition to these factors, the analysis of local economic benefits shall include an analysis of the anticipated life of the project, the costs to decommission the project at the end of its useful life, an estimate of the costs of disposal of all components of the project, including the potential cleanup costs of any hazardous waste generated both by the operation of the project and as part of decommissioning the project and disposal of the buildings, materials, components, wastes and accessory structures that exist because of the project. Finally, the analysis of economic benefits will include an assessment of the loss of all agricultural land within the disturbance zone used for the construction and operation of the proposed project, including the costs to mitigate the effects of sedimentation to the local surface and groundwater as a result of the removal of vegetation from the site over the anticipated life of the proposed project.

      (7)   Environmental analysis. The applicant shall prepare an environmental review, to include an evaluation of the reasonably anticipated wildlife impacts, visual impacts, soil impacts, including impacts arising from the removal of vegetation from the site for any solar power plant–large, and possible sedimentation arising from that removal, and an evaluation of any wildlife, historic, archeological and cultural resources identified by DWR and UTSHPO in accordance with division (E)(2)(f) above. At the applicant’s election, the analysis required under this section may be prepared so as to be consistent with the requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., and regulations issued by the Council on Environmental Quality, or such alternative regulations as the applicant proposes that are consistent with the requirements of this chapter, with the applicant supporting its decision by a submission to the Planning Commission. In the event that the applicant is required by any state or federal agency to undertake review of the proposed project under NEPA, documents prepared by the applicant to comply with those requirements may be submitted to the town in satisfaction of this requirement. In addition, the environmental review documents shall include an evaluation of the decommissioning plan required by this section and the reasonably anticipated environmental impacts arising from the implementation of the decommissioning plan. The review documents prepared pursuant to this section must identify all such reasonably anticipated impacts and propose modifications to any proposed project to reasonably mitigate the reasonably anticipated detrimental impacts. In the event that avoidance of the identified impacts is not deemed possible, the environmental review documents prepared pursuant to this section shall include proposals for the mitigation of any identified impacts which cannot be avoided. Both the Planning Commission and the Town Council may deny any application for a conditional use permit, to the extent permitted under state law, based on their determination that the reasonably anticipated detrimental effects of a proposed solar power plant–large cannot be substantially mitigated by the proposal or the imposition of reasonable conditions to achieve compliance with the standards of approval set forth in this section.

      (8)   Solid and hazardous waste. Include plans for the spill prevention, cleanup and disposal of fuels, oils and hazardous waste, as well as collection methods for all solid waste generated by the solar energy project. In addition, an application for a conditional use permit pursuant to this subchapter shall include, as part of the decommissioning plan required under this division (E)(8), a disposal plan for all solid waste and any hazardous waste that will be generated by the implementation of the decommissioning plan. The calculation of the decommissioning costs (as defined in this division (E)(8)) shall include the costs to dispose of any hazardous waste generated by a proposed solar power plant–large as part of the decommissioning of the project. Any hazardous waste generated as a result of the construction, operation, maintenance or decommissioning of a solar power plant–large may not be disposed within the town. Prior to the issuance of a building permit, an applicant shall provide the town with the safety data sheets (SDSs) from the manufacturer of the solar array panels proposed for the project, as well as the SDSs for all other components of the proposed project for which SDSs exist.

      (9)   Transportation plan for construction and operation phases. Indicate by both a narrative description and a map the roads the applicant will utilize during the construction and operational phases of the project, along with their existing surfacing and condition. In addition, the application must specify any new roads and proposed upgrades or improvements needed to the existing road system to serve the project during both the construction and operation of the project. Any application must also identify all areas where modification of the topography is anticipated (cutting/filling) to construct or improve the roadways, address road improvement, restoration or maintenance needs associated with the construction, ongoing maintenance/repair, and potential dismantling and/or decommissioning of the project, provide projected traffic counts for the construction period, broken down by the general type/size of vehicles, and identify approximately how many trips will have oversized or overweight loads. If significant impacts to the town’s transportation system are anticipated, the town may require financial guarantees to ensure proper repair/restoration of roadways or other infrastructure damaged or degraded during construction or dismantling of the project. In such cases, the “before” conditions of the roadways and other infrastructure must be documented through appropriate methods, such as videos, photos and written records, in order to provide a proper reference for restoration.

      (10)   Public safety. Identify and address any known or suspected potential safety hazards to the town, adjacent properties, public roadways, communities and any other potential impacts to public safety that may be created by the proposed project.

      (11)   Noise limitations. Include sufficient information regarding noise generated during both the construction and the operation of the proposed project so as to demonstrate compliance with the Town Nuisance Code as set out in § 90.29 of this code.

      (12)   Visual and glare impacts and protected viewsheds. As part of the environmental review required under division (E)(7) above, an evaluation of the reasonably anticipated detrimental glare impacts and impacts to protected viewsheds within the disturbance zone and off-site impacted area shall be undertaken and included as part of that environmental review. The applicant shall also provide an evaluation of visual impacts caused by components of the project, such as mirrors, solar towers, cooling towers, steam plumes, aboveground electrical lines, accessory structures, access roads, utility trenches and installations and alteration of vegetation. The environmental review shall assess the visual and glare impacts within both the disturbance zone and the off-site impacted area of all such components that are proposed to be installed as part of a solar power plant–large, and an assessment of those impacts shall be included as part of a visual simulation of the planned structures and analysis of reasonably anticipated glare impacts within the proposed project’s disturbance zone and off-site impacted area. The number of visual simulations shall be sufficient to provide adequate analysis of the visual impacts of the proposal, which shall be from not less than four vantage points that together provide a view from all sides of the proposed solar power plant–large. More visually sensitive proposals (e.g., solar power towers or exposed mirrors in sensitive viewsheds) may require analysis from significantly more vantage points, such as different distances and sensitive locations.

      (13)   Consultation with State Department of Natural Resources, Division of Wildlife Resources. The applicant shall provide town staff with documentation that the applicant has notified the DWR in writing of the proposed solar power plant–large on the site. If, within 30 days of the DWR’s receipt of the applicant’s notice, the DWR confirms in writing to the applicant that the DWR has identified reasonably anticipated detrimental effects, as determined by the DWR, to areas of wildlife habitat and migration corridors for wildlife on the site that will be affected as a result of the construction and operation of any solar power plant–large, such information obtained from the consultation with the DWR will be incorporated into the environmental review required pursuant to division (E)(7) above, and the Planning Commission may impose reasonable conditions to mitigate the reasonably anticipated detrimental effects of the solar power plant–large on such affected habitat or corridors on the site.

      (14)   Consultation with State Historic Preservation Office (SHPO) and Antiquities Section. The applicant shall provide town staff with documentation that the applicant has notified SHPO in writing of the proposed solar power plant–large on the site. If, within 30 days of SHPO’s receipt of the applicant’s notice, SHPO confirms in writing to the applicant that SHPO identified reasonably anticipated detrimental effects of the proposed solar power plant–large on historic, archeological and cultural resources under § 106 of the National Historic Preservation Act, 54 U.S.C. § 300101, and any regulations adopted pursuant to that Act, as well as the requirements of U.C.A. § 9-8-404(1), such information obtained from the consultation with SHPO will be incorporated into the environmental review required pursuant to division (E)(7) above and the Planning Commission may impose reasonable conditions to mitigate the reasonably anticipated detrimental effects of the solar power plant–large on such historic, archaeological and cultural resources on the site.

      (15)   Revegetation. Revegetation areas and methods.

      (16)   Dust/erosion. Dust and erosion control.

      (17)   Agreements/easements. If the land on which the project is proposed is to be leased rather than owned by the applicant, all property within the project boundary must be included in a recorded easement(s), lease(s) or consent agreement(s) specifying the applicable uses for the duration of the project. All necessary leases, easements or other agreements between the applicant and the affected parties must be in place prior to commencing construction unless specified otherwise by the conditional use permit.

      (18)   Interconnections. Identify the anticipated points of interconnections between the solar power plant–large and the power grid of the utility whose facilities will transmit the power generated by the solar power plant–large for which a conditional use permit is being sought. Unless waived by the Planning Commission, no aboveground collector lines may be constructed as part of a solar power plant–large, except for connections between the substation or substations included as part of a solar power plant–large that are required to connect the solar power plant–large to high voltage transmission lines operated by a public utility licensed by FERC and the State PSC. The applicant must demonstrate that any such connections are necessary and that they comply with the requirements imposed by FERC and the State PSC, as applicable.

      (19)   Mitigation. Plans to mitigate the reasonably anticipated detrimental effects of the solar power plant–large.

      (20)   Additional impacts. In addition to the impacts identified above, the Planning Commission or Town Council may require the identification, assessment, avoidance or mitigation of any other probable and significant impacts, as identified through the review process.

      (21)   Decommissioning plan. Submit a decommissioning plan which complies with division (F) below.

      (22)   Commitment declaration. Applicants shall commit to following the Solar Industry Commitment to Environmental and Social Responsibility developed by the Solar Energy Industries Association by including with their application a declaration to that effect.

   (F)   Standards for a decommissioning plan.

      (1)   Plan submission. As part of the conditional use permit application, the applicant must submit a decommissioning plan, which must include the following:

         (a)   The anticipated life of the project;

         (b)   The estimated cost to remove, dismantle and dispose of the project improvements at the end of their useful life (the “decommissioning cost”), as determined by a licensed professional engineer not employed by the applicant, owner or operator, with experience in the design/construction or operation and decommissioning of solar energy projects; and

         (c)   The manner in which the project will be decommissioned.

      (2)   Financial assurance. Before any conditional use permit may be issued pursuant to this subchapter, the Town Council must approve the decommissioning plan submitted in connection with the application for a conditional use permit. Any such approval must include an election by the applicant of the means by which financial assurance will be provided to the town that the applicant will be able to implement its proposed decommissioning plan. The financial assurance means may be chosen from the following alternatives, and the required financial assurance shall be provided to the town prior to the issuance of a building permit authorizing the commencement of construction of the project:

         (a)   A federally insured certificate of deposit in the name of the town in the amount of 125% of the decommissioning cost, along with a power of attorney made in favor of the town, allowing the town to access the certificate of deposit in the event the applicant, owner or operator fails to fulfill the decommissioning plan, declares bankruptcy or is otherwise deemed to be insolvent by a court with competent jurisdiction;

         (b)   A cash deposit in the amount of 125% of the decommissioning cost, along with a power of attorney made in favor of the town, allowing the town to access the cash deposit in the event the applicant, owner or operator fails to fulfill the decommissioning plan, declares bankruptcy or is otherwise deemed to be insolvent by a court with competent jurisdiction;

         (c)   An irrevocable letter of credit in favor of the town, in the amount of 125% of the decommissioning cost, along with a power of attorney made in favor of the town allowing the town to access the letter of credit in the event the applicant, owner or operator fails to fulfill the decommissioning plan, declares bankruptcy or is otherwise deemed to be insolvent by a court with competent jurisdiction; and

         (d)   Posting a performance bond, to be made in favor of the town, of 125% of the decommissioning cost that allows the town to access the bond in the event the applicant, owner or operator fails to fulfill the decommissioning plan, declares bankruptcy or is otherwise deemed to be insolvent by a court with competent jurisdiction.

   (G)   Financing with debt. If the owner of any solar energy project finances the project with debt secured by the project, the owner shall ensure that the debt shall not be secured by and the lender(s) may not access the financial assurance posted by the applicant, owner or operator to ensure the decommissioning costs of the project pursuant to division (F)(2) above.

   (H)   Updated decommissioning plan. To assure that the decommissioning cost upon which the decommissioning plan required by this section remains up-to-date and valid, the applicant, owner or operator shall prepare and present to the town an updated decommissioning plan and decommissioning cost not later than five years following the issuance of any building permit by the town for any project permitted pursuant to this section, and again every five years thereafter.

   (I)   Unsafe or abandoned solar energy system. If the Building Department, after the delivery of notice to the owner or operator, finds that a solar energy project is in violation of any federal, state or local permits, approvals or safety standards, the owner or operator shall take steps immediately to ensure the solar energy project complies with all federal, state and local permits, approvals and safety standards. If the Planning Commission, after delivery of notice to the owner or operator, finds that the project is an abandoned solar energy system, the owner or operator shall decommission the project in accordance with the decommissioning plan. Any finding by the Planning Commission pursuant to this division (I) must be made in writing and preceded by a public meeting that complies with applicable state law. An owner or operator may appeal a finding of the Planning Commission by following the town land use appeal ordinance within 30 days of the date the finding was made. The Building Department may extend the 180-day deadline set forth in the definition of an abandoned solar energy system if the Building Department finds that the owner or operator intends to repair and restore operations of the project and provides the Building Department with a restoration plan and time line for doing so. If the owner or operator fails to repair or decommission an abandoned solar energy system within the time frame set forth in the decommissioning plan (or as otherwise approved by the Building Department as provided herein) or fails to file a timely appeal with the land use appeal authority, this failure will be deemed as sufficient cause for the town to utilize the security accepted by the town pursuant to division (F)(2) above and to remove the project and implement the decommissioning plan prepared by the applicant. When the owner, operator or other responsible party decommissions a solar energy project, that person or persons shall handle and dispose of the equipment and other project components in conformance with all state and local requirements. At such time as a solar energy project is scheduled to be decommissioned at the end of the project’s useful life, the owner, operator or other responsible party shall notify the town not less than 365 days prior to the date of decommissioning, as well as notify the town of the schedule within which the owner, operator or other responsible party shall complete the physical removal of the solar energy project. This period may be extended at the request of the owner, operator or other responsible party upon approval of the Town Council.

   (J)   Standards for location, appearance and operation of a project site.

      (1)   Height restrictions. All photovoltaic panels, solar devices and buildings and accessory structures located on a solar power plant–large shall be restricted to a maximum height of 15 feet when orientated at a maximum tilt, as measured from the existing grade.

      (2)   Setbacks. Buildings and accessory structures constructed at a solar power plant–large shall be set back from all property lines and public road rights-of-way at least 25 feet or one and one-half times the height of the building or structure, whichever is greater. In addition, buildings and accessory structures at a solar power plant–large must be located at least 100 feet from all residentially zoned lots and existing residences. Additional setbacks may be required to mitigate reasonably anticipated noise and glare impacts, or to provide for designated road or utility corridors, as identified through the application review process.

      (3)   Fencing. An appropriate security/livestock fence (height and material to be established through the conditional use permit process) shall be placed around the perimeter of any solar power plant–large. Knox key lock boxes and keys shall be provided at locked entrances to allow emergency personnel access.

      (4)   Signage on solar equipment. Warning signage shall be placed on solar equipment to the extent appropriate, as determined by town staff, with any restrictions or requirements on signage incorporated as part of any conditional use permit issued pursuant to this subchapter. Solar equipment shall not be used for displaying any advertising except for reasonable identification of the manufacturer, owner or operator of the solar energy project. All signs, flags, streamers or similar items, both temporary and permanent, are prohibited on solar equipment except as follows:

         (a)   Manufacturer’s or installer’s identification;

         (b)   Appropriate warning signs and placards;

         (c)   Signs that may be required by any federal agency or the State PSC;

         (d)   Signs that provide a 24-hour emergency contact phone number and warn of any danger; and

         (e)   Educational signs providing information about the project and benefits of renewable energy may be allowed as provided in the town sign ordinance.

      (5)   Noise and nuisance requirements. Solar energy projects shall comply with all applicable town noise and nuisance codes.

      (6)   Buildings and accessory structures. All buildings and accessory structures incorporated into any solar power plant–large shall use materials, colors and textures that will blend the facility into the existing environment.

      (7)   Landscaping.

         (a)   Appropriate landscaping and/or screening materials may be required to help screen a solar power plant–large and buildings and accessory structures from major roads and neighboring residences.

         (b)   The use of landscaping or other screening material may be required to mitigate the reasonably anticipated detrimental visual impacts and glare impacts within the disturbance zone and the off-site impacted area, if any, of any solar power plant–large identified as part of the environmental review undertaken pursuant to division (E)(7) above and may be incorporated as conditions of approval of a conditional use permit issued pursuant to this subchapter.

      (8)   Lighting. Lighting of all buildings and accessory structures included in any solar power plant–large shall be limited to the minimum necessary, and be full cut-off lighting as required by the Town Lighting Code, and may be required when determined necessary to mitigate visual impacts. No solar power plant–large shall produce glare that would constitute a nuisance to occupants of neighboring properties or persons traveling on neighboring roads.

      (9)   Fire protection. All solar power plants–large shall have a defensible space for fire protection with a fire protection plan, which will be approved and signed off by the Fire Marshal.

      (10)   Local, state and federal permits.

         (a)   A solar power plant–large shall be required to obtain all necessary permits from the State PSC, the State Department of Environmental Quality (State DEQ), including the Division of Air Quality and the Division of Water Quality, any applicable permits required by the town and all applicable federal permits.

         (b)   A condition of approval of a conditional use permit issued pursuant to this subchapter shall be reasonable documentation that the applicant has obtained all required permits to construct the solar power plant–large from FERC, the State PSC and the State DEQ. The town may withhold approval of a building permit for a solar power plant–large if such condition is not satisfied at the time the applicant applies for a building permit.

   (K)   Standards of approval for a conditional use permit.

      (1)   Approval.

         (a)   A conditional use shall be approved if reasonable conditions are proposed, or can be imposed, to mitigate the reasonably anticipated detrimental effects of the proposed use in accordance with applicable standards set forth in this chapter and with all other applicable portions of this chapter. If the reasonably anticipated detrimental effects of a proposed conditional use cannot be substantially mitigated by the proposal or the imposition of reasonable conditions to achieve compliance with applicable standards, the conditional use may be denied.

         (b)   For the purpose of this chapter, the applicable standards which shall be applied in assessing any application submitted pursuant to this subchapter shall be:

            1.   Whether the proposed use meets the applicable requirements for conditional use of a “solar power plant–large” in the proposed zone;

            2.   The use is compatible, or with conditions of approval can be made compatible, with surrounding uses;

            3.   The use is consistent with all applicable adopted town planning policies and master plans; and

            4.   The reasonably anticipated detrimental effects of the proposed use can be mitigated by the imposition of reasonable conditions.

      (2)   Limitations on conditional use approval.

         (a)   Subject to an extension of time granted by the Planning Commission, no conditional use permit approved pursuant to this subchapter shall be valid for a period longer than three years unless a building permit has been issued, complete building plans have been submitted to the Town Building Department within that period and the permitted project is thereafter diligently pursued to completion; a certificate of occupancy is issued and a use commenced within that period; or a longer time is requested and granted by the Planning Commission.

         (b)   Any request for a time extension shall be submitted not less than 30 days prior to the expiration of the three-year time period.

   (L)   Approval authority. The Town Council is the approval authority.

   (M)   Appeals. See § 154.048 of this code for appeals provisions.

   (N)   Application to successors and assigns. The terms of any conditional use permit issued pursuant to this subchapter shall run with the land and be binding on any successor or assignee of an applicant, owner or operator and any party that purchases and/or operates a project.

(Prior Code, § 10.17.100) (Ord. 10242023, passed 10-24-2023; Ord. 2024-02, passed 5-9-2024) Penalty, see § 154.999

   (A)   The intent and purpose of this section is to protect the community, enhance and support tourism and protect neighboring properties from litter, vermin, a loss of property value or other ill effects of unsightly or uncontained storage, junk or salvage items.

   (B)   The following restrictions shall apply.

      (1)   Such use shall be located in a zone in which the use is a conditionally permitted use.

      (2)   All industrial supplies and building materials; all licensed, registered and fully operational automobiles; and parts and other items shall be kept in an orderly, maintained and aesthetically pleasing way.

      (3)   Any parts or materials which are light enough to blow in the wind shall be kept in an enclosed building.

      (4)   Waste, garbage, junk and debris piles shall not be kept on-site.

      (5)   Refer to § 154.186(L) of this chapter for fencing, screening and landscaping requirements.

      (6)   All areas intended for industrial outdoor storage shall be designated as such on the site plan.

(Prior Code, § 10.17.100)

   (A)   Purpose. The purpose of this chapter is to establish the minimum requirements and regulations for the placement, construction, modification and decommissioning of battery energy storage systems within the town (the “town”), and issuing a conditional use permit subject to reasonable conditions that promote and protect the public health, safety and welfare of the town and its residents, by creating regulations for the installation and use of battery energy storage systems, with the following objectives:

      (1)   Regulatory scheme. To provide a regulatory scheme for the designation of properties suitable for the location, construction and operation of battery energy storage systems;

      (2)   Compatible land use. To ensure compatible land uses in the vicinity of the areas by battery energy storage systems;

      (3)   Mitigation. To mitigate the impacts of battery energy storage systems on environmental resources, such as important agricultural lands, forests, wildlife and other protected resources; and

      (4)   Synergy. To create synergy between battery energy storage system development and other goals of the town pursuant to its master plan.

   (B)   Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

      ABANDONED BATTERY ENERGY STORAGE SYSTEM. Any battery energy storage system that remains nonfunctional or inoperative, meaning it is not being used or is not maintained in compliance with the terms of an approved conditional use permit for a continuous period of 180 days. A battery energy storage system that is nonfunctional or inoperative for any period of time as a result of a force majeure event, any maintenance, repair or any other periods of nonuse that are planned or scheduled by the owner or operator for which advance notice is provided to the town shall not be deemed abandoned for purposes of this section.

      ACCESSORY DWELLING UNIT (ADU). A D-ADU and an I-ADU.

      ACCESSORY DWELLING UNIT, DETACHED (D-ADU). A separate structure from the primary dwelling that is located on the same lot or parcel. D-ADUs shall include a kitchen and a bathroom.

      ACCESSORY DWELLING UNIT, INTERNAL (I-ADU). A dwelling unit located within the footprint of a primary dwelling. I-ADUs are sometimes called mother-in-law apartments.

      ANSI. American National Standards Institute.

      BATTERY(IES). 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 law, BATTERIES utilized in consumer products, mobile applications or for household purposes are excluded from these requirements.

      BATTERY ENERGY STORAGE MANAGEMENT SYSTEM. A control 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.

      BATTERY ENERGY STORAGE SYSTEM. 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 12-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:

      (1)   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; and

      (2)   TIER 2 BATTERY ENERGY STORAGE SYSTEMS have an aggregate energy capacity greater than 600 kWh or are composed of more than one storage battery technology, which may be located outdoors in a cabinet, container or which may be located outdoors, in a cabinet, container or enclosed area.

      CELL. The basic electrochemical unit, characterized by an anode and a cathode, used to receive, store and deliver electrical energy.

      COMMISSIONING. 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.

      FIRE CODE. The State Fire Code Act, being U.C.A. Title 15A Chapter 5, and the building code adopted as currently in effect and as hereafter amended from time to time.

      NATIONALLY RECOGNIZED TESTING LABORATORY (NRTL). The 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.

      NEC. National Electric Code.

      NFPA. National Fire Protection Association.

      OWNER OCCUPANCY. A property owner, as reflected in title records, makes his, her or their legal residence at the property. Evidence of OWNER OCCUPANCY may include voter registration, vehicle registration, driver’s license, County Assessor records or other similar means.

      UNIFORM CODE. The State Fire Code Act or Building Code adopted as currently in effect and as hereafter amended from time to time.

   (C)   Applicability.

      (1)   Scope of application. The requirements of this section shall apply to all battery energy storage systems permitted, installed or modified in the town after the effective date of the ordinance codified in this section, excluding general maintenance and repair of such facilities.

      (2)   Modifications and retrofits. Unless approved as part of an existing conditional use permit, modifications to or retrofits or replacements of, an existing battery energy storage system that increase the total battery energy storage system designed discharge duration or power rating shall be subject to this section and shall require the issuance of a new conditional use permit, or approval by the Planning Commission of an amendment to an existing conditional use permit that complies with the requirements of this subchapter.

   (D)   General requirements.

      (1)   Installation. A building permit and an electrical permit shall be required for the installation of all battery energy storage systems.

      (2)   Review. The issuance of permits and approvals by the Planning Commission shall include a review of applicable state and federal environmental laws and implementing regulations.

      (3)   Code conformance. All battery energy storage systems and all other buildings or structures that contain or are otherwise associated with a battery energy storage system and are subject to the Uniform Code shall be designed, erected and installed in accordance with all applicable provisions of the Uniform Code and other applicable codes, including this codification of town ordinances.

   (E)   Permitting requirements for Tier 1 battery energy storage systems. Tier 1 battery energy storage systems shall be permitted in all zoning districts, subject to the Uniform Code and the Fire Code, and exempt from site plan review.

   (F)   Permitting requirements for Tier 2 battery energy storage systems.

      (1)   Restriction. Tier 2 battery energy storage systems are permitted through the issuance of a conditional use permit only within the Light Industrial East Zone and shall be subject to the Uniform Code, the Fire Code and the site plan application requirements set forth in this section. Applications for a conditional use permit for the installation of a Tier 2 battery energy storage system shall be reviewed by the Planning Commission for completeness.

      (2)   Application contents. An application shall be complete when it addresses all matters listed in this section, including, but not limited to:

         (a)   Compliance with all applicable provisions of the Uniform Code, the Fire Code and all other applicable codes;

         (b)   Applicants shall be advised within ten business days of the completeness of their application or any deficiencies that must be addressed prior to substantive review;

         (c)   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 rights-of-way;

         (d)   A project description; a narrative identifying the applicant, owner and operator, and describing the proposed Tier 2 battery energy storage system, including a detailed overview of the project and its location; the approximate estimated rated capacity of the Tier 2 battery energy storage system; the approximate number, representative types and expected footprint of solar equipment to be used or constructed, if applicable; and a description of any ancillary equipment, buildings and structures, if applicable; an estimated construction schedule and project life;

         (e)   Site and development plans; for a Tier 2 battery energy storage system requiring a conditional use permit, shall include the following information:

            1.   Property lines, including roads, for the project site;

            2.   Property lines and setback lines;

            3.   Existing and proposed buildings and structures;

            4.   Existing and proposed access roads, drives, turnout locations and parking; and

            5.   Any other physical features not mentioned above.

         (f)   Proposed changes to the landscape of the site, grading, vegetation clearing and planting, exterior lighting and screening vegetation or structures;

         (g)   A single line electrical diagram detailing the battery energy storage system layout, associated components and electrical interconnection methods, with all National Electrical Code-compliant disconnects and overcurrent devices;

         (h)   A preliminary equipment specification sheet that documents the proposed battery energy storage system components, inverters and associated electrical equipment that is to be installed. A final equipment specification sheet shall be submitted prior to the issuance of a building permit;

         (i)   The name, address and contact information of the 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 a building permit;

         (j)   The 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;

         (k)   Zoning district designation for the parcel(s) of land comprising the project site;

         (l)   A commissioning 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. Battery energy storage system commissioning shall be conducted by a state-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 Department prior to final inspection and approval and maintained at an approved on-site location;

         (m)   A 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;

         (n)   An 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;

         (o)   Erosion and sediment control and stormwater management plans, and to such standards as may be established by the Planning Commission;

         (p)   Prior to the issuance of the building permit but not required as part of the application, engineering documents must be signed and sealed by a state-licensed professional engineer;

         (q)   An 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:

            1.   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 startup following cessation of emergency conditions;

            2.   Procedures for inspection and testing of associated alarms, interlocks and controls;

            3.   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;

            4.   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;

            5.   Response considerations similar to a safety data sheet (SDS) that will address response safety concerns and extinguishment when an SDS is not required;

            6.   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;

            7.   Other procedures as determined necessary by the town to provide for the safety of occupants, neighboring properties and emergency responders;

            8.   Procedures and schedules for conducting drills of these procedures; and

            9.   Fencing or other methods of ensuring public safety.

         (r)   Areas of wildlife habitat and migration corridors and areas of historic, archeological and cultural resources within one-quarter mile of the battery energy storage system;

         (s)   Any floodplains or wetlands;

         (t)   Additional information may be required as determined by town officials or staff, such as a scaled elevation view and other supporting drawings, photographs of the proposed site, photos or other realistic simulations or modeling of the project, a coverage map and additional information that may be necessary for a technical review of the proposal;

         (u)   Documentation of the right to use the site for the proposed project. Documentation shall include proof of ownership or control over the site or legal proof of the owner’s/operator’s right to use the site in the manner requested. The applicant may redact sensitive financial or confidential business information from the documentation provided so long as doing so does not prevent town officials or staff from confirming the applicant’s legal right to utilize the site for the proposed purpose. Copies of recorded deeds or memoranda of leases and easements shall be deemed sufficient for the purpose of demonstrating site control under this section;

         (v)   Documentation of permits or permit applications. As a condition of approval of any conditional use permit approved pursuant to this subchapter, the applicant shall be required to provide town staff with certified copies of all necessary permits to construct and operate a Tier 2 battery energy storage system prior to the issuance of a building permit;

         (w)   1.   Analysis of local economic benefits. The applicant must provide an analysis of local economic benefits, describing estimated project costs, generated taxes, the percentage of construction dollars to be spent locally and the number of local construction and permanent jobs that are anticipated to be created as a result of the project.

            2.   In addition to these factors, the analysis of local economic benefits shall include an analysis of the anticipated life of the project, the costs of decommissioning the project at the end of its useful life, an estimate of the costs of disposal of all components of the project, including the potential cleanup costs of any hazardous waste generated both by the operation of the project and as part of the decommissioning the project and disposal of the buildings, materials, components, waste and accessory structures that exist because of the project;

         (x)   Solid and hazardous waste plans. Include plans for the spill prevention, cleanup and disposal of fuels, oils and hazardous waste, as well as collection methods for all solid waste generated by the project. In addition, an application for a conditional use permit pursuant to this subchapter shall include, as part of the decommissioning plan required under division (G) below, a disposal plan for all solid waste and any hazardous waste that will be generated by the implementation of the decommissioning plan. The calculation of the decommissioning costs (as defined in division (G) below) shall include the costs to dispose of any hazardous waste generated by a proposed Tier 2 battery energy storage system as part of the decommissioning of the project. Prior to the issuance of a building permit, an applicant shall provide the town with the safety data sheets (SDSs) from the manufacturer of the batteries proposed for the project, as well as the SDSs for all other components of the proposed project for which SDSs exist;

         (y)   A transportation plan for construction and operation phases. Indicate by both a narrative description and a map the roads the applicant will utilize during the construction and operational phases of the project, along with their existing surfacing and condition. In addition, the application must specify any new roads and proposed upgrades or improvements needed to the existing road system to serve the project during both the construction and operation of the project. Any application must also identify all areas where modification of the topography is anticipated (cutting/filling) to construct or improve the roadways, address road improvement, restoration or maintenance needs associated with the construction, ongoing maintenance/repair and potential dismantling and/or decommissioning of the project, provide projected traffic counts for the construction period, broken down by the general type/size of vehicles, and identify approximately how many trips will have oversized or overweight loads. If significant impacts to the town’s transportation system are anticipated, the town may require financial guarantees to ensure proper repair/restoration of roadways or other infrastructure damaged or degraded during construction or dismantling of the project. In such cases, the “before” conditions of the roadways and other infrastructure must be documented through appropriate methods, such as videos, photos and written records, in order to provide a proper reference for restoration;

         (z)   Address public safety. Identify and address any known or suspected potential safety hazards to the town, adjacent properties, public roadways, communities and any other potential impacts to public safety that may be created by the proposed project;

         (aa)   Noise limitations. Include sufficient information regarding noise generated during both the construction and the operation of the proposed project so as to demonstrate compliance with the Town Nuisance Code as set out in Chapter 90 of this code;

         (bb)   Revegetation areas and methods;

         (cc)   Dust and erosion control;

         (dd)   Agreements and easements. If the land on which the project is proposed is to be leased rather than owned by the applicant, all property within the project boundary must be included in a recorded easement(s), lease(s) or consent agreement(s) specifying the applicable uses for the duration of the project; necessary leases, easements or other agreements between the applicant and the affected parties must be in place prior to commencing construction unless specified otherwise by the conditional use permit;

         (ee)   Identify the anticipated points of interconnections between the Tier 2 battery energy storage system and the power grid of the utility whose facilities will transmit the power stored and released by the Tier 2 battery energy storage system for which a conditional use permit is being sought;

         (ff)   Plans to mitigate the reasonably anticipated detrimental effects of the Tier 2 battery energy storage system;

         (gg)   Any additional impacts. In addition to the impacts identified above, the Planning Commission may require the identification, assessment, avoidance or mitigation of any other probable and significant impacts as identified through the review process; and

         (hh)   Applicants shall commit to following the solar industry commitment to environmental and social responsibility developed by the Solar Energy Industries Association by including with their application a declaration to that effect.

   (G)   Decommissioning plan. Submit a decommissioning plan which complies with this chapter.

      (1)   Standards for a decommissioning plan. As part of the conditional use permit application, applicants must submit a decommissioning plan, which must include the following:

         (a)   The anticipated life of the project;

         (b)   The estimated cost to remove, dismantle and dispose of the project improvements at the end of their useful life (the “decommissioning cost”) as determined by a licensed professional engineer, not employed by the applicant, owner or operator, with experience in the design/construction or operation of Tier 2 battery energy storage systems; and

         (c)   The manner in which the project will be decommissioned. Before any conditional use permit may be issued pursuant to this chapter, the Planning Commission must approve the decommissioning plan submitted in connection with the application for a conditional use permit issued pursuant to this subchapter. Any such approval must include an election by the applicant of the means by which assurance will be provided to the town that the applicant for the conditional use permit will be able to implement its proposed decommissioning plan, chosen from the following alternatives, which shall be provided to the town prior to the issuance of a building permit authorizing the commencement of construction of the project:

            1.   A federally insured certificate of deposit in the name of the town in the amount of 125% of the decommissioning cost, along with a power of attorney made in favor of the town allowing the town to access the certificate of deposit in the event the applicant either fails to fulfill its decommissioning plan, declares bankruptcy or is otherwise deemed to be insolvent by a court with competent jurisdiction;

            2.   A cash deposit in the amount of 125% of the decommissioning costs, along with a power of attorney made in favor of the town in the event the applicant fails to fulfill its decommissioning plan, declares bankruptcy or is otherwise deemed to be insolvent by a court with competent jurisdiction;

            3.   An irrevocable letter of credit in favor of the town in the amount of 125% of the decommissioning cost, along with a power of attorney made in favor of the town allowing the town to access the letter of credit in the event the applicant either fails to fulfill its decommissioning plan, declares bankruptcy or is otherwise deemed to be insolvent by a court with competent jurisdiction; or

            4.   Posting a performance bond of 125% of the decommissioning cost, such bond to be made in favor of the town and allowing the town to access the bond in the event the applicant either fails to fulfill its decommissioning plan, declares bankruptcy or is otherwise deemed to be insolvent by a court with competent jurisdiction.

      (2)   Financing with debt. If the owner of any Tier 2 battery energy storage system finances the project with debt secured by the project, the owner shall ensure that the debt shall not be secured by, and the lender(s) may not access, the financial assurance posted by the applicant, owner or operator to ensure the decommissioning costs of the project.

      (3)   Updated decommissioning plan. In order to assure that the decommissioning cost upon which the decommissioning plan required by this section remains valid, the applicant shall prepare and present to the town an updated decommissioning plan and decommissioning cost not later than five years following the issuance of any building permit issued by the town for any project permitted pursuant to this section.

      (4)   Unsafe or abandoned project. If the Planning Commission, after the delivery of notice to the owner or operator, finds that a Tier 2 battery energy storage system is in violation of any town code, or has been abandoned (as defined in this section), the owner or operator shall repair the Tier 2 battery energy storage system in a manner so as to assure that the project complies with all federal, state and local safety standards, or, if the Planning Commission finds that the project has been abandoned, the owner or operator shall remove the project in accordance with the decommissioning plan. Such a finding by the Planning Commission must be made in writing and be preceded by a public hearing that complies with applicable state law. An owner or operator may appeal a finding of the Planning Commission pursuant to the town land use appeal ordinance within 30 days of the date such a finding has been made. The Planning Commission may extend the 180-day deadline set forth in the definition of an “abandoned project” if the Planning Commission finds that the owner or operator intends to repair and restore operations of the project and provides the Planning Commission with a restoration plan and time line for completing such work. If the owner or operator fails to repair or decommission an abandoned Tier 2 battery energy storage system within the time frame set forth in the decommissioning plan (or as otherwise approved by the Planning Commission as provided herein) or fails to file a timely appeal with the land use appeal authority, this failure will be deemed as sufficient cause for the town to utilize the security accepted by the town pursuant to the previous divisions of this section and to remove the project and implement the decommissioning plan prepared by the applicant. When the owner, operator or other responsible party decommissions a Tier 2 battery energy storage system, that person or persons shall handle and dispose of the equipment and other project components in conformance with all state and local requirements. At such time as a Tier 2 battery energy storage system is scheduled to be decommissioned at the end of the project’s useful life, the owner, operator or other responsible party shall notify the town not less than 365 days prior to the date of decommissioning, as well as notify the town of the schedule within which the owner, operator or other responsible party shall complete the physical removal of the Tier 2 battery energy storage system. This period may be extended at the request of the owner, operator or other responsible party upon approval of the Town Council.

   (H)   Standards for location, appearance and operation of a project site.

      (1)   Height restrictions. Tier 2 battery energy storage systems shall comply with the building height limitations for principal structures of the underlying zoning district.

      (2)   Setbacks. Battery energy storage systems shall comply with the setback requirements of the underlying zoning district for principal structures.

      (3)   Fencing. An appropriate security/livestock fence (height and material to be established through the conditional use permit process) shall be placed around the perimeter of any Tier 2 battery energy storage system. To the extent consistent with the Fire Code, the Knox key lock boxes and keys shall be provided at locked entrances in order to allow emergency personnel access.

      (4)   Fencing. Tier 2 battery energy storage systems, including all mechanical equipment, shall be enclosed by a seven-foot-high fence with a self-locking gate to prevent unauthorized access unless housed in a dedicated use building and not interfering with ventilation or exhaust ports.

      (5)   Signage. Signage on Tier 2 battery energy storage systems shall be required as follows:

         (a)   The signage shall be in compliance with ANSI Z535 and shall include the type of technology associated with the battery energy storage system, any special hazards associated, the type of suppression system installed in the area of the battery energy storage system and 24-hour emergency contact information, including reach-back phone number;

         (b)   As required by the NEC, disconnect and other emergency shutoff information shall be clearly displayed on a light-reflective surface. A clearly visible warning sign concerning voltage shall be placed at the base of all pad-mounted transformers and substations; and

         (c)   Signage shall be in compliance with §§ 154.240 to 154.247 of this chapter.

      (6)   Noise requirements. Tier 2 battery energy storage systems shall comply with all applicable town noise ordinances or codes.

      (7)   Buildings and accessory structures. All buildings and accessory structures incorporated into any Tier 2 battery energy storage system shall use materials, colors and textures that are of natural earth tones that blend the facility into the existing environment; white, gray, silver and black are acceptable colors for buildings and accessory structures as it pertains to this section.

      (8)   Landscaping. Appropriate landscaping and/or screening materials that are consistent with the fire safety compliance plans may be required to help screen a Tier 2 battery energy storage system and buildings and accessory structures from major roads and neighboring residences.

      (9)   Lighting. Lighting shall be limited to that minimally required for safety and operational purposes and shall be reasonably shielded and downcast from abutting properties. Cut-off lighting as required by the Town Lighting Code may be required when determined necessary to mitigate visual impacts.

      (10)   Fire protection. Tier 2 battery energy storage systems shall have a defensible space for fire protection with a fire protection plan, which will be approved and signed off by the Fire Marshal.

      (11)   Local, state and federal permits.

         (a)   Tier 2 battery energy storage systems shall be required to obtain all necessary permits from the State PSC, the State Department of Environmental Quality (State DEQ), including the Division of Air Quality and the Division of Water Quality, any applicable permits required by the town and all applicable federal permits.

         (b)   A condition of approval of any conditional use permit for a Tier 2 battery energy storage system shall require the applicant to submit reasonable documentation that the applicant has obtained all required permits to construct the Tier 2 battery energy storage system from FERC, the State PSC and the State DEQ prior to the issuance of a building permit. The town may withhold approval of a building permit for a Tier 2 battery energy storage system if such condition is not satisfied at the time the applicant applies for such building permit.

   (I)   Standards of approval for a conditional use permit.

      (1)   Mitigation.

         (a)   1.   A conditional use shall be approved if reasonable conditions are proposed, or can be imposed, to mitigate the reasonably anticipated detrimental effects of the proposed use in accordance with applicable standards set forth in this subchapter and with all other applicable portions of this chapter.

            2.   If the reasonably anticipated detrimental effects of a proposed conditional use cannot be substantially mitigated by the proposal or the imposition of reasonable conditions to achieve compliance with applicable standards, the conditional use may be denied.

         (b)   For the purposes of this section, the applicable standards which shall be applied in assessing any application submitted pursuant to this section shall be:

            1.   Whether the proposed use meets the applicable requirements for conditional use of a Tier 2 battery energy storage system in the proposed zone;

            2.   The use is compatible, or with conditions of approval can be made compatible, with surrounding uses;

            3.   The use is consistent with all applicable adopted town planning policies and master plans; and

            4.   The reasonably anticipated detrimental effects of the proposed use can be mitigated by the imposition of reasonable conditions.

      (2)   Limitations on conditional use approval. Subject to an extension of time granted by the Planning Commission, no conditional use permit approved pursuant to this subchapter shall be valid for a period longer than three years unless a building permit has been issued or complete building plans have been submitted to the Town Building Department within that period and the permitted project is thereafter diligently pursued to completion; or unless a certificate of occupancy is issued and a use commenced within that period; or unless a longer period of time is requested and granted by the Planning Commission. Any request for a time extension shall be required not less than 30 days prior to the expiration of the three-year time period.

   (J)   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) or an 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; and

         (e)   Alternatively, field evaluation by an approved testing laboratory for compliance with UL 9540 (or an approved equivalent) and applicable codes, regulations and safety standards may be used to meet system certification requirements.

      (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 Fire Department and, if the Tier 2 battery energy storage system is located in an ambulance district, the local ambulance corps.

      (3)   Clearance and exposure. Battery energy storage systems, components and associated ancillary equipment shall have required working space clearances, and electrical circuitry shall be within weatherproof enclosures marked with the environmental rating suitable for the type of exposure in compliance with NFPA 70.

   (K)   Approval authority. The Planning Commission is the approval authority.

   (L)   Enforcement. Any violation of this section regulating battery energy storage systems shall be subject to the same enforcement requirements, including the civil and criminal penalties, provided for in the town’s zoning or land use regulations.

   (M)   Appeals. See § 154.048 of this chapter for appeals provisions.

   (N)   Application to successors and assigns. 

      (1)   The terms of any conditional use permit issued pursuant to this subchapter shall run with the land and be binding on any successor or assignee of an applicant, owner or operator and any party that purchases and/or operates a battery energy storage system.

      (2)   Any successor to or assignee of the original permittee of a conditional use permit for a battery energy storage system shall provide its name and mailing address to the town within 30 days after completion of such transfer and shall provide replacement decommissioning security to the town consistent with the requirements set forth in division (G)(1)(c) above.

      (3)   Each successor or assignee of the original permittee shall be deemed the permittee under the conditional use permit from and after the date of such transfer and shall comply with the terms of the conditional use permit for the battery energy storage system.

(Ord. 2024-01, passed 4-11-2024) Penalty, see § 154.999