Milford City Zoning Code
ARTICLE XVI
Renewable Energy Facilities
§ 190-140 Findings; purpose.
A.
Milford Borough's Common Council, in conjunction with the Milford Borough Joint Land Use Board (the "Board"), has determined the need to regulate the use and placement of alternative energy facilities and related structures predicated upon the current national and regional trends which encourage the development of renewable energy generating systems.
B.
Milford Borough, in recognition of the State of New Jersey's recent legislative enactment which classifies certain alternative and renewable energy generating systems as "inherently beneficial uses" to the citizens of this state, seeks to regulate the use and placement of alternative energy facilities and related structures in an orderly, safe and efficient manner in suitable areas within the Borough.
C.
Milford Borough has determined that the Borough's existing zoning regulations do not adequately provide for the orderly use and development of either suitable lands in the Borough of Milford for solar and photovoltaic facilities or for structure installations for individual homeowners and business establishments and for larger installations that are capable of generating electrical power for the general citizenry of the state, region, and community, and concurs with the recommendations of the Joint Land Use Board.
D.
This article shall enable the Borough of Milford to:
(1)
Produce electric power in an environmentally sound or "green" manner;
(2)
Create an environment that would attract, formalize and encourage commercial renewable energy facilities while protecting the public health and safety and promoting the general welfare of the community;
(3)
Provide a power source for the Borough facilities and perhaps the community of power generated locally at a cost less than market rate;
(4)
Provide an opportunity for the generation of local power that will enhance the reliability and quality of the power grid, reduce peak power demands, help diversify the state's energy portfolio and reduce energy imported into the state; and
(5)
Produce energy through abundant, renewable, and nonpolluting technologies in order to reduce the consumption of fossil fuels in producing electricity.
§ 190-141 Definitions.
As used in this article, the following terms shall have the meanings indicated:
An electric generating facility that supplies electrical energy production for off-premises consumption, from solar or photovoltaic technologies, that consists of one or more solar panels and ancillary associated buildings and structures that could include substations, meteorological towers, electrical infrastructure, transmission lines and other appurtenant structures and facilities. Such a facility or structure can be a principal use, an accessory use to a permitted principal use, or a second primary use.
Any system of fuel cells, solar or photovoltaic panels and/or equipment used for the production of energy that is not otherwise classified as a small-scale (minor) solar or photovoltaic energy facility or structure herein.
A fuel cell, solar or photovoltaic panel or system of panels for the production of energy that uses solar energy as its fuel, is located on the beneficiary's premises, is designed and intended primarily to offset part or all of the beneficiary's requirements for energy consumption on site, is secondary to the beneficiary's use of the premises for other lawful purpose(s), is intended to mitigate electrical system improvement requirements, and generates not more than 110% of the average annual on-site consumption of electricity or the current state-regulated maximum electrical production as it relates to the average annual on-site consumption of small- or minor-scale solar systems, which shall be documented through the submission of power company electric usage bills or another form of documentation acceptable to the Milford Borough Zoning Officer. Installation certification of the structural safety for the installation of the system must be provided to the Zoning Officer or Construction Code Official, as the case may be, to ensure that the system does not provide a hazard to the health, safety or welfare of the community.
§ 190-142 Small-scale (minor) energy system.
A.
Small-scale solar energy is permitted in all zoning districts of the Borough.
B.
A zoning permit shall be required for the installation of small-scale solar energy roof-mounted or ground-mounted solar panels in all cases. All roof-mounted systems that neither exceed the permitted height of the zone in which the system is proposed nor the roof support capacities will not require any further approvals beyond appropriate building permits. Additionally, ground-mounted systems that meet the accessory setbacks in the zone in which the system is proposed will not need further approvals beyond appropriate building permits.
C.
Height. A roof-mounted, small-scale solar energy system may be installed on a sloped roof and/or a flat roof, provided that, in the case of a roof-mounted system, the photovoltaic solar panels and all necessary equipment shall not extend more than five feet above the edge of the roofline or above the highest point of the roof surface or structure.
D.
All freestanding ground-mounted minor solar systems shall be subject to the accessory building side, rear and front yard setbacks of the specific zone district in which the small-scale solar energy system is proposed or a minimum setback of 10 feet, whichever is greater.
E.
All minor solar systems are to be clearly marked at or within one foot of the electrical meter pan.
F.
Firesafety.
(1)
All residential roof-mounted systems shall provide adequate area on the roof for firefighters to ventilate all planes of the roof upon which the systems are installed.
(2)
Residential solar systems shall be fitted with a safety mode system capable of switching off the live DC current from the system, and such switch shall clearly be marked and accessible.
(3)
Security fencing and locked gate(s) shall be erected and operational prior to the installation of the ground energy system.
(4)
An exterior electrical disconnect shall be provided which shall be plainly marked and identified.
G.
Performance standard; glint and glare. All solar energy panels shall be angled such that reflection from the panels shall be orientated away from neighboring windows and roads and shall be designed with at least one anti-reflective layer or coating. "Glint" is defined as a specular direct reflection of the sun, a momentary flash of light. "Glare" is defined as a more continuous source of excessive brightness relative to the defused lighting and is not a direct reflection of the sun but the bright sky around the sun or the corona. Both glint and glare should be evaluated using the reflective energy percentage or the sunlight energy reflected off the solar panels based on the anticipated location where the glare or glint might be expected.
§ 190-143 Major-scale (commercial) solar facility.
B.
Site plan. A site plan is required. Additionally, the installation of a commercial solar facility constitutes land development, and all provisions of the applicable ordinances of the Borough of Milford shall be met by the applicant in accordance with the New Jersey Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq.
C.
Standards. All major solar or photovoltaic energy facility or structure installations shall comply with the following requirements:
(1)
All commercial solar facilities shall conform to at least the minimum lot width, minimum lot depth, maximum lot coverage (defined as building coverage) and the building setbacks of the controlling zone district (which are here defined as the building, facility and structure setbacks) or a minimum setback of 50 feet, whichever is greater, unless different standards are explicitly provided for herein.
(2)
Permitted height. The maximum permitted vertical height above ground for solar and photovoltaic energy panels and associated structures shall be the maximum building or structure height permitted for that zone as set forth by Borough ordinance.
(3)
Major solar or photovoltaic energy facilities and structures shall have a minimum lot size of at least 20 acres, with the exception that, in the Rural Residential (RR) Zone District, the minimum lot area for a commercial solar facility shall be six acres. In the RR Zone District, where a farmland tax assessment for an agricultural use applies, only one of the six total acres (a one to six acre ratio) shall be developed with solar.
(4)
No soil shall be removed from any site upon which major solar or photovoltaic energy facilities and structures are constructed. Within areas containing prime farmland [see Subsection C(4)(a) below] and farmlands of statewide significance [see Subsection C(4)(b) below], as identified by the United States Department of Agriculture (USDA) Natural Resources Conservation Service, there shall be no concrete footings constructed or used for solar or photovoltaic panel racking systems or other structures to support panels; however, concrete pads for inverters and similar equipment and concrete footings for security fencing may be constructed within areas containing these soils. Grading within prime farmland and farmlands of statewide significance shall be limited to only that necessary to construct access roads and for construction of inverter and switching equipment pads.
(a)
Prime farmlands include all those soils in Land Capability Class I and selected soils from Land Capability Class II. Prime farmland is land that has the best combination of physical and chemical characteristics for producing food, feed, forage, fiber and oilseed crops and is also available for these uses. It has the soil quality, growing season, and moisture supply needed to economically produce sustained high yields of crops when treated and managed according to acceptable farming methods. Prime farmlands are not excessively erodible or saturated with water for a long period of time, and they either do not flood frequently or are protected from flooding.
(b)
Farmlands of statewide importance include those soils in Land Capability Classes II and III that do not meet the criteria as prime farmland. These soils are nearly prime farmland and economically produce high yields of crops when treated and managed according to acceptable farming methods. Some may produce yields as high as prime farmland if conditions are favorable.
(5)
Except pursuant to a permit, waiver, decision or regulation issued by New Jersey Department of Environmental Protection (NJDEP), no portion of major solar or photovoltaic energy facilities and structures shall occupy areas of land designated and regulated by NJDEP as floodplains, flood hazard areas, wetlands, wetland transition areas or riparian corridors.
(6)
Major solar or photovoltaic energy facilities and structures shall not occupy any area beyond the required principal building setbacks for the zone in which the facility is to be located, exclusive of poles for the interconnection of the facility to the electrical power grid. The minimum vegetated visual and security buffer width for major solar or photovoltaic energy facilities or structures shall be provided in all zones, and the minimum principal setbacks shall be increased in any zone where the principal building setback is less than 50 feet. In no case shall the principal building setback be less than 50 feet such that the required twenty-five-foot minimum width vegetated visual and security buffer shall be provided.
(7)
To the extent achievable, solar and photovoltaic energy facilities and structures shall be sited using the natural topography to screen the energy project from public view and the view of any adjoining residences.
(8)
In all zoning districts, major solar and photovoltaic energy facilities and structures shall be screened by a combination of berm(s), landscaping and fencing. Fencing or a barrier shall be installed at the interior edge of the berm(s) and landscaping, away from the property line.
(9)
A vegetated visual landscape buffer and fence shall be provided and shall not be less than 25 feet in width in all zones and located within the fifty-foot building, facility and structure setback. The vegetated visual and security buffer shall consist of a combination of a landscaped berm, landscaping and a security barrier behind the landscaping and berm.
(a)
Vegetation shall visually screen the major solar or photovoltaic energy system from all adjoining residential uses and zones, the public traveled way (public roads, trails, blue line waterways, scenic highways and byways), publicly owned properties, open space, preserved farmland and historic resources, including sites and buildings listed or eligible for listing on the State and National Registers of Historic Places. Vegetation shall be provided in accordance with standards set forth herein. In addition, landscaping shall be limited to native species of deciduous and coniferous trees and shrubs that are indigenous to the area and shall not include invasive species. Such plantings shall be depicted on a plan prepared by a licensed landscape architect.
(b)
Installations shall be sited behind existing vegetation, which shall be supplemented with landscaping to screen the installation from public view, and the landscape buffer shall work with the existing vegetation.
(c)
A barrier or fence shall be installed on the interior edge of the required landscape buffer away from the property line. The barrier or fence shall secure the facility at all times, restrict access to all electrical wiring that may be readily accessible, and be in conformance with the Uniform Construction Code.[1] One or more access gates to the facility shall be provided. Each access gate shall include a sign identifying the responsible parties for operation of the major solar and photovoltaic energy facilities and structures, for maintenance of the facility, and for maintenance of the berm, landscaping and security fence.
(d)
All transformers and high-voltage equipment shall be situated within a compound, which shall be enclosed within a secure perimeter fence around the perimeter of the facility within the inside of the landscape buffer, with an access gate, which shall remain locked at all times. The height of the security fence and access gate surrounding transformers and high-voltage equipment shall be eight feet in height or as required by applicable federal and state regulation and/or local building codes.
(e)
Prior to any disturbance of the site, the applicant shall submit a cost estimate for the required berm and landscaping, which shall be subject to review and approval by the Board Engineer. The approved cost estimate shall be the basis for either a bond or cash guarantee, which shall be subject to a development agreement and shall be posted by the applicant prior to any site disturbance and the issuance of construction and subcode permits.
(10)
Where it can be demonstrated to the satisfaction of the reviewing Board that the use of natural topography and siting behind proposed or existing vegetated areas will sufficiently screen solar and photovoltaic energy facilities and structures from view as required herein, portions of the required berm(s) and landscape buffer may be reduced at the Board's discretion.
(11)
A continuous landscaped berm(s) shall be provided within the buffer, which shall be constructed in a free-form, undulating configuration and shall be of varying height to complement the natural landscape and enhance the visual screening of the facility.
(a)
The berm shall have the following minimum dimensions:
[1]
The base of the berm shall be not less than 10 feet in width;
[2]
The height of the berm shall not exceed four feet above ground level;
[3]
The top of the berm shall be not less than four feet in width; and
[4]
The bottom outside edge of the berm shall be not less than five feet from any property line.
(b)
The required landscaped berm shall include the provision of adequate and appropriate drainage facilities, which shall be designed such that site grading and construction shall not alter the natural drainage patterns of stormwater originating within the property boundaries and beyond property boundaries. A grading and drainage plan shall be submitted which shall demonstrate that existing drainage patterns shall be perpetuated.
(c)
A grading and drainage plan shall be submitted under the seal of a New Jersey licensed professional engineer and shall provide the details necessary to adequately demonstrate to the reviewing agency engineer that no stormwater runoff or natural water shall be so diverted as to overload existing drainage systems or create flooding or the need for additional drainage structures on other private properties or public lands without proper and approved provisions being made for taking care of these conditions.
(d)
The grading and drainage plan shall show, among other things:
[1]
All existing and proposed natural and artificial drainagecourses and other features for the control of drainage, erosion, and water generally;
[2]
The calculated volume of water runoff from the slope and from the lot in question, as proposed to be improved;
[3]
The existence of all natural and artificial drainagecourses and facilities within 500 feet of the lot which are or will be used to carry or contain the runoff from the slope and the lot; and
[4]
The effect of any increased water runoff on all adjacent properties and any other property which will be materially affected by increased water runoff.
(e)
Calculations shall be provided to adequately demonstrate that existing preconstruction stormwater drainage velocities shall not be exceeded in the post-development condition.
(12)
Major solar and photovoltaic energy facilities and structures and alternative energy systems shall not result in creating reflective glare for adjoining residential properties as viewed from a height of 10 feet above ground level on adjoining residential properties.
(13)
Glint and glare. All solar energy panels shall be angled such that reflection from the panels shall be orientated away from neighboring windows and roads and shall be designed with at least one anti-reflective layer or coating. "Glint" is defined as a specular direct reflection of the sun, a momentary flash of light. "Glare" is defined as a more continuous source of excessive brightness relative to the defused lighting and is not a direct reflection of the sun but the bright sky around the sun or the corona. Both glint and glare should be evaluated using the reflective energy percentage or the sunlight energy reflected off the solar panels based on the anticipated location where the glare or glint might be expected.
(14)
All areas of the tract shall be planted with suitable ground cover, such as native grasses, for soil stabilization, except for areas on the tract (or tracts) that may be forested, farmed, in industrial use or residential use as permitted according to the permitted uses of the zone, and areas occupied by solar and photovoltaic energy facilities and structures, berms and landscaping.
(15)
Solar energy systems shall not be used for displaying any advertising except for reasonable identification of the manufacturer or operator of the system. In no case shall any identification be visible from the property line.
(16)
Major solar energy systems and facilities, including all components thereof, shall be designed to withstand a ground-level wind velocity of 90 miles per hour or greater, or in accordance with wind loading guidelines established in the Uniform Construction Code, whichever is greater.
(17)
The use of batteries to store electric power generated by the facility shall be prohibited. Batteries may be used to provide power for emergency lighting. The type of batteries for such a use shall be selected using the newest and best technology available to provide an environmentally safe installation.
(18)
Power lines. All transmission and power lines shall be placed underground except in those instances where transmission towers, poles and lines are already in existence. Feeder lines and collection lines may be placed overhead near substations or points of interconnection to the electric grid.
(19)
Noise. The total daytime operational mechanical or aerodynamic noise, including turbine or transmission line noise, from the solar energy facility and the ambient background noise shall be measured at the nearest property line and shall not exceed a maximum of 45 dB(A) peak noise as measured at nighttime.
(21)
Lighting. Any facility lighting shall be shielded or landscaped to eliminate light spillage onto any adjacent property. "Light spillage" is defined as an illumination of 0.3 footcandle or greater onto any residential property or residential zone district and one footcandle onto any nonresidential, business or industrial property or zone district. A "footcandle" is defined as the light or brightness that a candle gives as measured at a distance of one foot away from the candle.
(22)
Steep slopes. Slopes greater than 30% shall not be built upon. The applicant must prove to the Joint Land Use Board and to the Borough Engineer that erosion controls have been satisfied for sites with a slope greater than 20%.
(23)
Tree removal. A solar facility should not be located on a wooded site. It is assumed that any trees removed beyond 10 mature healthy trees shall be replaced by similar trees elsewhere on site.
(24)
Electrical codes. The solar energy facility or system shall meet the minimum standards outlined in the National Electrical Code (NEC), the National Electrical Safety Code (NESC) and all applicable current rules and suggested practices for photovoltaic power systems.
(25)
Firesafety.
(a)
All roof-mounted systems shall provide adequate area on the roof for firefighters to ventilate all planes of the roof upon which the systems are installed.
(b)
Ground systems shall include roads not less than 18 feet in width, which shall be suitable to support the weight of fire company and rescue squad apparatus.[3]
(c)
Each site containing a solar facility shall include a sign indicating the type of system on premises and the contact names and numbers of the owner and operator. Additionally, a Knox-Box® system, or its analog, is to be utilized and locked at all times.
(d)
An exterior electrical disconnect shall be provided which shall be plainly marked and identified.
(e)
An emergency response plan shall be provided to the Borough and shall include emergency procedures, an evacuation plan, and emergency contacts and shall be updated and reviewed annually.
(f)
A two-tag system shall be used for entering the facility, which will incorporate one tag per person left in the service vehicle, indicating the names of the individual(s) and his or her employer, and one tag placed at the point of entry of any building or gate when roaming on the site.
(g)
After installation of the system, the owner/operator must provide a certification of the structural safety of the system to the Zoning Officer or Construction Code Official, verifying that the system does not provide a hazard to the health, safety or welfare of the community.
(26)
A maintenance plan shall be submitted for the continuing maintenance of all required plantings, including a schedule of specific maintenance activities to be conducted. Maintenance of the required berms, landscaping and fencing shall be a continuing condition of any approval that may be granted. The use of herbicides shall not be permitted as an acceptable maintenance practice.
(a)
Organic farming is encouraged as a best management practice for areas of the tract (or tracts) that are not occupied by solar and photovoltaic energy facilities and structures in the RR Zone. Organic farming is neither encouraged nor required in the GU or the I Zone.
(b)
Soil erosion control; soil stabilization. All ground areas occupied by the major solar or photovoltaic energy facility or structure installation that are not utilized for access to operate and maintain the installation shall be planted and maintained with shade-tolerant grasses for the purpose of soil stabilization. A seed mixture of native, noninvasive shade-tolerant grasses shall be utilized and specified in a landscaping plan that shall be provided. If it can be demonstrated by the applicant that an alternative vegetative ground cover consisting of a seed mix of native, noninvasive plant species and nonnative, noninvasive shade-tolerant species should be accepted for soil erosion control and soil stabilization, and the alternative can be better sustained over the life of the facility, the Board may approve such an alternative to the requirement for native, noninvasive shade-tolerant grasses or mix of grasses. The use of stone shall not be permitted for soil erosion control and soil stabilization. The components of this plan may be combined with the requirements of the grading and drainage plan.
(c)
Existing surface water drainagecourses. The bed and banks of existing drainage ditches, brooks, streams and drainage swales shall be maintained in their natural condition, except that, where soil erosion is evident in these features due to a lack of suitable stabilized vegetation, the Board may require such areas to be planted and stabilized in accordance with the recommendations of the Soil Conservation District, the USDA and/or the NJDEP.
§ 190-144 Decommissioning plan.
A.
Decommissioning plan required. All applications for a major solar facility shall be accompanied by a decommissioning plan to be implemented upon abandonment, or cessation of activity, or in conjunction with the removal of solar energy systems. The decommissioning plan shall be submitted in accordance with the requirements of this section. Prior to removal of solar energy systems, a demolition permit for removal activities shall be obtained from Milford Borough or the state construction official. Prior to the issuance of a demolition permit, the owner or operator of the facility shall post a performance bond to ensure removal of the facility or systems in accordance with the decommissioning plan. Removal of solar energy systems shall be performed by an electrician licensed and in good standing in the State of New Jersey.
B.
Solar and photovoltaic energy facilities and structures (roof or ground) which have not been in active and continuous service for a period of one year shall be removed from the property to a place of safe and legal disposal in accordance with a decommissioning plan.
C.
If the applicant ceases operation of the energy project for one year or begins but does not complete construction of the project within 180 days of receipt of final site plan approval, the applicant shall restore the site according to the decommissioning plan prepared by the applicant and approved by both the Board and the Milford Borough Common Council.
D.
The applicant shall submit a decommissioning plan that ensures that the site will be restored to a useful, nonhazardous condition without significant delay, including but not limited to the following:
(1)
Removal of aboveground and underground equipment, structures and foundations to a depth of at least three feet below grade. Underground equipment, structures and foundations need not be removed if they are at least three feet below grade and do not constitute a hazard or interfere with agricultural use or other resource uses of the land. The plan shall describe the means by which all equipment and components of the system(s) shall be disposed of in an environmentally responsible manner and in accordance with prevailing federal, state and/or local regulations;
(2)
Restoration of the surface grade and soil after removal of aboveground structures and equipment;
(3)
Revegetation of restored soil areas with native seed mixes and plant species suitable to the area, which shall not include any invasive species. In farmland areas, the revegetation component of the decommissioning plan may include provisions to resume agricultural use of the site;
(4)
The plan may provide for the retention of access roads, fences, gates or buildings in place or regarding restoration of agricultural crops or forest resource land;
(5)
The plan must provide for the protection of public health and safety and for the protection of the environment and natural resources during site restoration; and
(6)
The plan must include a schedule for completion of site restoration work.
E.
A cost estimate shall be provided for the cost of fully implementing the decommissioning plan prior to the issuance of a demolition permit. The cost estimate shall be subject to review and approval by the Borough Engineer.
F.
Before beginning any decommissioning activities, the applicant must submit a performance bond in a form satisfactory to the Borough Attorney and in an amount satisfactory to the Milford Borough Common Council. The value of said performance bond shall be based upon an estimate approved by the Board Engineer, which shall assure the availability of adequate funds to restore the site to a useful, nonhazardous condition in accordance with the decommissioning plan.
G.
Upon cessation of activity for a cumulative period of 180 days of construction or installation activities of an approved major solar or photovoltaic energy system, the Borough shall notify the owner and/or the operator of the facility to complete construction and installation of the facility. If the owner and/or operator fails to complete construction and installation activities within 180 additional days, the Borough shall order the owner and/or operator of the facility to implement the decommissioning plan. Within six months of notice being served, the owner and/or or operator shall substantially complete all activities in the decommissioning plan.
H.
Upon cessation of activity of a fully constructed major solar or photovoltaic energy system for a cumulative period of one year, the Borough may notify the owner and/or the operator of the facility to implement the decommissioning plan. Within 180 days of notice being served, the owner and/or operator shall either resume energy generation to at least 80% capacity of the facility or system as established at the time of approval or fully implement the decommissioning plan. If, within 180 days of receipt of notice, the owner and/or operator of the facility or system fails to resume energy generation to at least 80% of capacity of the facility or system as established at the time of approval, the Borough may order the owner and/or operator of the facility to implement the decommissioning plan.
I.
If the operator fails to fully implement the decommissioning plan subject to the procedures and timelines set forth in Subsections G and H above, or is otherwise unable to restore the site as required within 180 days of the Borough's service of notice in accordance with this section, the Borough may, at its own expense, provide for the restoration of the site in accordance with the decommissioning plan and may in accordance with the law recover all expenses incurred for such activities.
§ 190-145 Installations subject to Fire Chief review.
[Added 12-19-2011 by Ord. No. 786-2011]
A.
All applications seeking to install solar and photovoltaic energy installations in accordance with this article shall be subject to review and approval by the Milford NJ Fire Company, Inc., Chief or his/her designee with respect to emergency and safety precautions and procedures attendant to that application in order to safeguard the health, safety and well-being of both emergency responders and the general public.
B.
Any requirements set forth by the Milford NJ Fire Company, Inc., Chief or his/her designee shall be deemed a condition of approval for each such application.