The components and subsystems required to convert solar energy into electric energy suitable for use. The area of the system includes all the land inside the perimeter of the system, which extends to any fencing. For the purposes of these zoning regulations, solar energy systems are divided into three (3) classes.

a.

Level 1 Solar Energy System. A roof mounted system on any code compliant structure.

1.

Level 1 Solar Energy Systems are prohibited in Riverfront 1 and Riverfront 3 zones.

2.

Level 1 Solar Energy Systems, other than solar shingles, are allowed in Riverfront 2, Riverfront 4, Central Business District, Gateway Zone, and Henderson Innovative Planning District only if the SES is enclosed or screened to ensure that such features are not visible from street level and are compatible to the architectural style of the building.

3.

Level 1 Solar Energy Systems which are solar shingles if visible from the street are a conditional use in Riverfront 2, Riverfront 4, Central Business District, Gateway Zone, and Henderson Innovative Planning District and must match the existing façade and architecture of the building.

4.

Level 1 Solar Energy Systems are allowable in all other zones other than the those listed in subsections (1) and (2) above.

b.

Level 2 Solar Energy System. Any ground-mounted system not included in a Level 1 SES and meets the following area restrictions and requirements:

1.

Level 2 Solar Energy Systems are only allowed in Agricultural Zone and Light Industrial (M-1) and Heavy Industrial (M-2) zones.

2.

In an agricultural zone the area of the SES shall not exceed one-half (½) acre in size and shall require a building permit issued by the Henderson City Codes Department.

3.

In an industrial zone, the SES shall not exceed ten (10) acres in size.

4.

The height of any ground mounted SES shall not exceed twenty-five (25) feet as measured from the highest natural grade below each solar panel (excludes utility poles and antennas constructed for the project).

5.

Setback requirements for Level 1 and Level 2 SES shall be in compliance with the zoning classification for the parcel.

6.

There shall be no signs permitted on Level 2 SES except those displaying emergency information, owner contact information, warning or safety instructions or signs that are required by a federal, state or local agency. Such signs shall not exceed five (5) square feet in area.

7.

In an Industrial Zone, a Level 2 SES shall require a site plan approved by the Henderson City-County Planning Commission and a building permit by the Henderson City Codes Department.

8.

Lighting on Level 2 SES shall be prohibited except that required by federal or state regulations.

c.

Level 3 Solar Energy System. Any ground mounted system that is greater than the one-half (½) acre in size for agricultural zone or exceeds the ten (10) acres in size for an industrial zone satisfy the parameters for a Level 2 SES and must meet the following restrictions and requirements.

1.

Level 3 SES are only allowed in Agricultural Zone and Light Industrial (M-1) and Heavy Industrial (M-2) zones.

2.

The height of any ground mounted Level 3 SES shall not exceed twenty-five (25) feet as measured from the highest natural grade below each solar panel (excludes utility poles and antennas constructed for the project).

3.

Setback requirements for Level 3 SES shall be as follows: (1) All equipment shall be at least fifty (50) feet from the perimeter property lines of the project area; (2) No interior property line setbacks shall be required if the project spans multiple contiguous properties; (3) All equipment shall be located at least one hundred (100) feet from any residential structure and; the maximum height of any individual component will be twenty-five (25) feet measured from the local ground level of the component.

4.

All Level 3 SES shall be screened with an eight-foot tall fence and a double row of staggered evergreen trees (minimum eight-foot height at planting) planted fifteen (15) feet on center from any public right-of-way or adjacent residential use. The evergreen trees shall be located outside of the fence. The use of barbed wire or sharp pointed fences shall be prohibited in or along any boundary adjoining residential properties.

5.

There shall be no signs permitted on Level 3 SES except those displaying emergency information, owner contact information, warning or safety instructions or signs that are required by a federal, state or local agency. Such signs shall not exceed five (5) square feet in area.

6.

Level 3 SES shall require a site plan approved by the Henderson City-County Planning Commission and a building permit by the Henderson City Code Enforcement Division.

7.

Lighting on Level 3 SES shall be prohibited except that required by federal or state regulations.

[d.]

Decommissioning of Level 3 SES shall be as follows:

1.

The developer shall post a surety bond with the Henderson City-County Planning Commission for the abandonment of the site and in the event the Commission must remove the facility. Abandonment shall be when the SES ceases to transfer energy on a continuous basis for twelve (12) months. The surety bond shall be one (1) percent of the total cost of the installed SES.

2.

A decommissioning plan shall be submitted at the time of application by the party responsible for decommissioning and the land owner and must include the following: (1) defined conditions upon which the decommissioning will be initiated, i.e., there has been no power production for twelve (12) months, the land lease has ended, or succession of use of abandoned facility, etc.; (2) removal of all non-utility owned equipment, conduit, structures, fencing, roads, and foundations; (3) restoration of the property to its original condition prior to development of the SES; (4) the timeframe for completion of decommissioning activities; (5) the party currently responsible for decommissioning; and (6) plans for updating the decommissioning plan.

(Ord. No. 30-19, 11-19-19; Ord. No. 34-23, Exh. A, 11-28-23)

Editor's note— Ord. No. 34-23, Exh. A, adopted November 28, 2023, renumbered the former § 4.22 as § 36.01 as set out herein. The historical notation has been retained with the amended provisions for reference purposes.

I.

Definitions.

ANSI. American National Standards Institute.

Battery/batteries. 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 purpose of this chapter, batteries utilized in consumer products are excluded from these requirements.

Battery energy storage management system. 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.

Battery energy storage system. One (1) 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:

A.

Tier 1 Battery Energy Storage Systems have an aggregate energy capacity less than or equal to six hundred (600) kWh and, if in a room or enclosed area, consist of only a single energy storage system technology.

B.

Tier 2 Battery Energy Storage Systems have an aggregate energy capacity greater than six hundred (600) kWh or are comprised of more than one (1) storage battery technology in a room or enclosed area.

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.

Dedicated-use building. A building that is built for the primary intention of housing battery energy storage system equipment, is classified as Group F-1 occupancy ¹ as defined in the International Building Code, and it complies with the following:

(1)

The building's only permitted primary use is for battery energy storage, energy generation, and other electrical grid-related operations.

(2)

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.

(3)

No other occupancy types are permitted in the building.

(4)

Administrative and support personnel are permitted in incidental-use areas within the buildings that do not contain battery energy storage system, provided the following:

a.

The areas do not occupy more than ten (10) percent of the building area of the story in which they are located.

b.

A means of egress is provided from the incidental-use areas to a public way that does not require occupants to traverse through areas containing battery energy storage systems or other energy systems.

Nationally recognized testing laboratory (NRTL). 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.

NEC. National Electric Code.

NFPA. National Fire Protection Association.

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.

UL. Underwriters Laboratory, an accredited standards developer in the US.

Uniform Code. Kentucky Building Code.

NOTE: ¹ Factory Industrial Group F occupancy includes, among others, the use of a building or structure, or a portion thereof, for assembling, disassembling, fabricating, finishing, manufacturing. packaging, repair or processing operations that are not classified as a Group H hazardous or Group S storage occupancy.

II.

Applicability.

A.

The requirements of this shall apply to all battery energy storage systems permitted, installed, or modified in the city after the effective date of this chapter, excluding general maintenance and repair.

B.

Battery energy storage systems constructed or installed prior to the effective date of this chapter shall not be required to meet the requirements of this chapter.

C.

Modifications to, 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 chapter.

III.

Zoning.

A.

Tier I Battery [Energy Storage Systems] are permitted in all zoning except for section 30.02 — RF-I Recreation, active and passive (Riverfront Zone 1) and section 30.04 — RF-3 Green space.

B.

Tier 2 Battery Energy Storage Systems are a conditional use to pursuant to section 24.03 in article XXIV — M-2, Heavy Industrial District.

C.

All Tier 2 Battery Energy Storage Systems' conditional use public notice as required under KRS 100.237(6) will be provided to adjoining property owners as well as every property owner within a half-mile (.5) radius of the proposed location of the system. Applicant shall be responsible for all postage costs for mailed notices.

D.

Tier 2 Battery Energy Storage Systems are to be housed in stationary storage battery containers that meet NFPA 855 standards. In addition, there must be an addressable building on site.

E.

The energy storage system shall be tested in accordance with the UL 9540A testing method and be UL 9540 certified.

IV.

General requirements.

A.

A building permit and an electrical permit shall be required for installation of all battery energy storage systems.

B.

All battery use/storage buildings and all other buildings or structures that:

(1)

Contain or are otherwise associated with a battery energy storage system; and

(2)

Subject to any and all applicable building and electrical codes including but not limited to Kentucky Building Code (KBC), National Electrical Code (NFC), NFPA 13, and International Mechanical Code (IMC); and

(3)

Subject to all NFPA 855 Standards including a fire safety plan; and

(4)

Where required by the fire code official a technical opinion and report complying NFPA 855 Standard shall be prepared to evaluate the fire and explosion risks associated with the indoor storage area and to make recommendations for fire and explosion protection. The report shall be submitted to the fire chief or his/her designee and shall require the fire chief's (or his/her designee's) approval prior to issuance of a permit. The technical opinion and report shall specifically evaluate the following:

a.

The potential for deflagration of flammable gases released during a thermal runaway event.

b.

The basis of design for an automatic sprinkler system or other approved fire suppression system. Such design basis shall reference relevant full-scale fire testing or another approved method of demonstrating sufficiency of the recommended design.

C.

Site plan. A site plan must be submitted to the Henderson City-County Planning Commission for a technical and approval by the Henderson City-County Planning Commission will be required. The submittal shall include:

(1)

An engineered site plan with related construction drawings.

(2)

Site plan checklist, application, and applicable fees.

(3)

Commissioning plan.

(4)

Fire safety compliance plan.

(5)

System and property operations and maintenance manual.

(6)

Decommissioning plan.

A decommissioning bond through the Henderson City-County Planning Commission will be required before any permits are issued for this project.

D.

Monitoring. Provide for gas and fire detection certified monitoring twenty-four (24) hours a day as provided for in NFPA 72.

E.

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.

F.

Signage.

1.

The signage shall be in compliance with ANSI 2535 and shall include the type of technology associated with the battery energy storage systems, including the type of battery energy storage system, 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, and all such information must be updated with any change in the storage systems.

2.

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.

G.

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.

H.

Vegetation and tree-cutting. Areas within ten (10) feet on each side of Tier 2 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, ivy, 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. Removal of trees should be minimized to the extent possible.

I.

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 fifty (50) dBA during the day and forty-five (45) dBA during the night, measured twenty-five (25) feet from the facade of any residence or occupied community building, existing or under construction at the time of the permit application. If the sound from any source from the structure exhibits a tonal prominence, then the respective noise limit shall be reduced by five (5) dBA. Applicants may submit equipment and component manufacturers noise ratings to demonstrate if any source exhibits tonal prominence as measured from the residence or occupied community building. The applicant may be required to provide operating sound pressure level measurements from one (1) or more neighboring residences, within reason to demonstrate compliance with this standard following system commissioning.

J.

Screening. All Tier 2 Battery Energy Storage Systems shall be screened with a seven-foot tall fence and, to the extent reasonably practicable, a visual buffer that provides reasonable screening to reduce the view of the battery energy storage system from residential dwelling units on adjacent lots (including those lots located across a public right-of-way). A vegetation screening plan to reduce the view of the battery energy storage system from residential dwelling units on adjacent lots will be submitted for approval by the Henderson City-County Planning Commission. The existing natural tree growth and natural land forms along the battery energy storage system perimeter may create a sufficient buffer and shall be preserved when reasonably practicable. When no alternative vegetation screening plan is approved by the Henderson City-County Planning Commission, a double row of staggered evergreen trees will be planted fifteen (15) feet on center from adjacent nonparticipating residential dwellings including the outdoor living space immediately near residential dwellings. Parcel boundaries with no proximity to residential dwellings shall not require screening. The proposed evergreen trees shall be placed on the exterior of security fencing. The use of barbed wire or sharp pointed fences shall be prohibited in or along any boundary adjoining residential properties.

V.

Decommissioning and site reclamation plan.

1.

The project owner and/or their designee/subcontractor will engage a licensed battery recycling location to arrange for the disposal of the batteries by applicable state and federal regulations.

2.

Permits, certifications, and training are required for decommissioning personnel all at the project owner's expense.

3.

The project owner and/ or their designee/subcontractor will ensure that all personnel on-site during the decommissioning process have received a site-specific safety briefing and know all electrical shock and arc flash risks, mainly when working within the battery containers. Hazmat training will be conducted for all personnel handling lithium-ion batteries during the process, subject to their job function per all federal, state, and local regulations. Only qualified electricians will be utilized to disconnect and remove battery modules from individual battery racks. As a handler (and storage) of universal waste, the project owner and/or their designee/subcontractor shall have an EPA identification number as required by 40 CFR 273.32 or applicable regulation. Additionally, lithium-ion batteries are classified by the US Department of Transportation (DOT) as Class 9 hazardous materials. All packaging, labeling, and transportation requirements in the Code of Federal Regulations, Title 49, Subchapter C, Parts 171—180, will be followed.

State of charge at decommissioning.

1.

The battery facility will be fully discharged to the minimum charge required for removal and safe transportation as per battery manufacturer specifications. The facility battery management system (BMS) will validate such charge via remote telemetry. Following this validation, the DC disconnect switch for each battery container will be opened and locked out for the remainder of the decommissioning process to ensure no additional charging occurs. If the batteries are reused, the project will follow the manufacturer's instructions regarding the depth of discharge to prevent cell damage.

Individual battery removal process.

1.

Battery modules are anticipated to be removed from their racks, repackaged on-site, and shipped to a regional recycling hub. No disassembly of battery modules will be required on-site, and the battery terminals will be taped off and protected to avoid a shortfall during packaging and shipping. The project owner or their subcontractor shall also ensure 49 CFR section 173.185 addressing the transportation of lithium cells or batteries for disposal or recycling, or applicable regulations, are adhered to, including applicable packaging requirements and hazard communication. In the event of any breakage or damage to individual battery modules, such modules will be placed in separate, nonmetallic inner packaging that completely encloses the cell and will utilize inner packaging that is surrounded by cushioning material that is noncombustible, electrically nonconductive, and absorbent. Such internal packaging shall be placed in an outer packaging that meets applicable requirements of CFR part 178, subparts L, M, P, and Q, or applicable regulations, with proper marking denoting the package containing a damaged/defective lithium-ion battery. In all cases, the project owner, or their subcontractor, as appropriate, shall comply with all applicable, EPA, OSHA, security, safety, and health requirements during the removal and decommissioning.

BESS HVAC, fire suppression system, power conversion system, and transformer removal process.

1.

BESS HVAC and fire suppression system equipment: The refrigerant/coolant from INAC units will be collected into separate containers on-site per the code and industry standard practice. The coolant can be reused after processing. The HVAC units and other recycling materials will be sent to the metal recyclers. Similarly, all fire suppression units will be cleared of the suppression fluids and sent to the suppliers for reuse following the industry standard practice.

2.

Inverters, transformers, and ancillary equipment: All electrical equipment will be disconnected and disassembled. All parts will be removed from the site and reconditioned and reused, sold as scrap, recycled, or disposed of appropriately, consistent with applicable regulations and industry standards.

3.

Gravel aggregate will be removed and shipped from the project site to be reused, sold, or disposed of appropriately, consistent with applicable regulations and industry standards. Clean aggregate can often be used as "daily cover" at landfills for no disposal cost. All internal service roads are constructed with geotextile fabric and eight (8) inches of aggregate over compacted subgrade. All pile foundations will be pulled out completely. Underground cables and duct banks will be removed to a depth of four (4) feet. Topsoil will be reapplied to the disturbed area. Soil and topsoil will be de-compacted, and the site will be restored to the pre-construction condition and re-vegetated.

4.

Equipment foundation and pads: The project's foundations are assumed to be concrete pads. All unexcavated areas compacted by equipment used in decommissioning will be de-compacted to adequately restore the topsoil and sub-grade material to a density like the surrounding soils. All materials will be removed from the site and disposed of appropriately, consistent with applicable regulations and industry standards.

5.

Fence: All fence parts and foundations will be removed from the site, consistent with applicable regulations and industry standards. The surrounding areas will be restored to pre-developed conditions to the extent practical.

6.

Access roads: Facility access roads, including entrances, will be used for decommissioning purposes, after which removal of roads will be discussed with the city engineer and the applicable landowner, using the following process:

a.

After final clean-up, roads, and entrances may be left intact through mutual agreement of the applicable landowner, the project owner, and the city engineer unless otherwise restricted by federal, state, or local regulations.

b.

If any roads and entrances are to be removed, aggregate will be removed and shipped from the project site to be reused, sold, or disposed of appropriately, consistent with applicable regulations and industry standards. Any ditch crossing connecting access roads to public roads will be removed unless the relevant landowner requests it remains. The subgrade will be de-compacted using a chisel plow or appropriate subsoiling equipment. All large rocks will be removed. The access roads and the adjacent regions compacted by the equipment will be de-compacted.

7.

Substation: All steel framing, conductors, switchgear, transformer, security fence, and other facility components will be disassembled and recycled or reused off-site. Foundations and underground components will be removed up to a depth of four (4) feet or any applicable regulation. The rock base will be removed, and the material will be hauled from the site to be recycled or disposed of at an off-site facility. Permanent stormwater treatment facilities like retention basins will be removed and graded to blend with the surrounding topography to promote pre-construction drainage patterns. Topsoil will be reapplied to the disturbed area. Soil and topsoil will be de-compacted, and the site will be restored to the pre-construction condition and re-vegetated.

Restoration/reclamation of site.

1.

The project owner will restore and reclaim the site to the pre-development state, ready for farming conditions consistent with applicable laws, rules, regulations, and lease agreements The goal of restoration will be to restore natural hydrology and plant communities (nonagricultural related) to the greatest extent practicable while minimizing new disturbance. During the operating phase of the project, the areas not hard-surfaced will be vegetated with native grasses and forbs and pollinator-friendly vegetation. This vegetation will rebuild soil health during the operating phase of the project. The vegetation is expected to withstand the decommissioning of the site, and only a minor effort will be required to restore the site to a pre-developed state. The decommissioning effort will implement best management practices ("BJ ......1Ps") to minimize erosion and to contain sediment on the project site to the extent practicable. The BMPs are anticipated to include:

a.

Minimizing new disturbance and removing native vegetation to the greatest extent practicable during decommissioning.

b.

Removing equipment and access roads up to full depth, backfill with native subgrade material, and cover with suitable topsoil to allow adequate root penetration for plants and so that subsurface structures do not substantially disrupt groundwater movements.

c.

Stabilizing soils and returning them to agricultural use, such as decompacting the soil, according to landowner direction.

d.

Installing erosion and sediment control measures, such as silt fences, bio-rolls, and ditch checks in all disturbance areas where the potential for erosion and sediment transport exists, consistent with stormwater management objectives and requirements during and after decommissioning activities.

e.

Remediating any petroleum product leaks and chemical releases before completion of decommissioning.

f.

Decommissioning and restoration activities at each site will be completed within twelve (12) months. Specifically, following a continuous one-year period in which no electricity is generated, or if substantial action on the Project is discontinued for one (1) year ("pre-decommissioning period"), the project owner will have one (1) year to complete decommissioning of the project. The project owner will notify the Henderson City-County Planning Commission at least thirty (30) days before the conclusion of the pre-decommissioning period.

Post-restoration monitoring and environmental studies.

1.

Decommissioning of the project site will comply with all federal, state, and local regulations. Decommissioning may include post-restoration monitoring as required by the NPDES/SDS CSW permit, SWPPP, and other applicable requirements. In addition, the project owner's field representative assigned to decommissioning monitoring will contact the applicable landowners, including onsite check-ins and site walk-downs for any flown debris to the neighboring properties until the NPDES/ SDS CSW permit is closed.

Estimated net decommissioning costs and financial assurance.

1.

The reclamation bond estimate uses current pricing for removing components and is based on three (3) years of degradation and depreciation of the modules. Due to construction techniques and technology changes, subsequent revisions to the decommissioning plan and cost estimate will be required. The mechanism for calculating the adjusted costs over the project's life will be based on updating the cost estimates for the decommissioning and restoration of the project site. The analysis used to revise the forecast will be like the one used to prepare this estimate. An engineering evaluation of the current construction techniques and equipment used for decommissioning will be performed, and the cost estimate will be revised to reflect any changes in productivity resulting from new techniques, equipment, and inflation. The required financial assurance will be updated every three (3) years.

2.

The recycling costs will be updated bi-annually to reflect the industry standard values.

3.

The decommissioning plan will be updated every three (3) years and will be audited.

4.

The decommissioning estimate has been prepared under the responsible supervision of a third-party certified professional.

(Ord. No. 34-23, Exh. A, 11-28-23)