Montgomery Town City Zoning Code
§ 235-7.12
Biomass Gasification-to-Energy Districts.
A.
Permitted uses. No person shall construct or operate a biomass gasification facility within the Town on or after the effective date of the addition of § 235-7.12 of this chapter except within a Biomass Gasification-to-Energy District as herein defined and except in compliance with the provisions of § 235-7.12 of this chapter. Biomass gasification facilities shall be permitted in a Biomass Gasification-to-Energy District within the Town as hereinafter provided in this section.
B.
Designation of Biomass Gasification-to-Energy Districts. Biomass gasification facilities shall be allowed in districts designated by the Town Board of the Town of Montgomery (hereinafter referred to as "Town Board") as provided in Subsection C of this section. It is the intention of this section to allow the creation of a Biomass Gasification-to-Energy District at any location deemed appropriate by the Town Board; provided however, that the Town Board shall not make such designation:
(1)
Unless the receiving district is the I-1 Zoning District; and
[Amended 10-6-2022 by L.L. No. 10-2022]
(2)
Until the Town Board considers the other factors specified in Subsection D of this section in determining whether to create a Biomass Gasification-to-Energy District.
C.
Procedures for designation of Biomass Gasification-to-Energy Districts.
(1)
(Reserved)[1]
[1]
Editor's Note: Former Subsection C(1), regarding districts coincident with existing recycling handling and recovery facilities and construction and demolition processing facilities, was repealed 10-6-2022 by L.L. No. 10-2022.
(2)
All new Biomass Gasification-to-Energy Districts shall be created by the Town Board in accordance with the following procedure:
(a)
An applicant seeking to petition the Town Board for the creation of a Biomass Gasification-to-Energy District shall submit to the Town Clerk an original and 12 copies of a signed application which shall contain at least the following information and documents:
[1]
The name, address, and telephone number of the applicant, together with the name of the person to contact for further information, if the applicant is not an individual.
[2]
A map, prepared by a licensed engineer or surveyor, showing the boundaries of the proposed Biomass Gasification-to-Energy District, as well as a key map showing its approximate location in the Town of Montgomery. The scale of the map shall be no less than one inch equals 100 feet, unless the Town Board, by resolution, allows a smaller scale.
[3]
All information required by § 235-15.4C(37)(b) of this chapter, submission requirements for recycling handling and recovery facilities, including composting operations, recyclable handling and recovery facilities, including post-collection separation facilities, waste tire storage facilities, construction and demolition debris processing facilities, waste transfer stations, and wood-chipping facilities.
[4]
A description of the proposed biomass gasification-to-energy process, including a description of the processing equipment that will be used to convert previously sorted and separated biomass into a synthesis gas for the purpose of generating electricity, including, but not limited to, gasification process equipment, electric-power-generating process equipment, biomass storage silos, and air-cooled condensers or cooling towers.
[5]
A full environmental assessment form, prepared by a licensed professional engineer or other environmental professional, to assist the Town Board in its determination of environmental significance of the proposed creation of the Biomass Gasification-to-Energy District under New York State Environmental Quality Review Act.
[6]
Where the applicant is not the owner of the subject parcel(s), proof of consent of the owner to the application.
[7]
A fee in the amount to be determined by the Town Board which will reimburse the Town for the expense paid by the Town to the Town Engineer and other designated Town consultants for reviewing the application.
(b)
The Town Clerk shall forthwith file the original of the application and forward the copies as follows: two to the Town Supervisor, who shall in turn forward one copy to an engineer retained by the Town Board for review and recommendations; one to each remaining Town Board member; one to the Town Attorney or his or her designee; three to the Chairman of the Town Planning Board; and one to the Orange County Department of Planning, with a request for a report and recommendation when required by General Municipal Law § 239-m.
(c)
The Town Board shall consider the application at its first regular meeting occurring at least 10 days following the filing of a complete application with the Town Clerk or at such other time and date as the Town Board shall determine. The Town Board shall discuss the application with the applicant and shall request any additional information it needs to consider the application. The Town Board may schedule a workshop to discuss the application with the applicant and the Town Planning Board. The Town Board shall also schedule a public hearing to be held at its next regular meeting after receipt of the recommendation (if any) from the Town Planning Board or at any other time and date it shall determine. Notice of the public hearing shall be published in the official newspaper of the Town and posted on the official bulletin board of the Town Clerk at least 10 days prior thereto. The Town Board shall also take whatever steps are necessary to comply with the New York State Environmental Quality Review Act, and the public hearing on the application may be combined with a public hearing on any draft environmental impact statement which the Town Board may require.
(d)
At least 10 days prior to the public hearing, the applicant shall send notice thereof by certified mail, return receipt requested, to the owners of record of all properties within 500 feet of the proposed boundaries of the district, or such other distance as the Town Board may deem advisable. Prior to the public hearing, the applicant shall submit to the Town Clerk an affidavit sworn and subscribed before a notary public containing the following information: the names and addresses of all such property owners; a statement verifying that all such property owners' names and addresses are contained on the list; and a statement that all such property owners were properly served with subject notice of public hearing. The applicant shall simultaneously submit the certified mail return receipts for all property owners served along with the affidavit.
(e)
The cost of preparing, publishing and mailing the required notice shall be borne by the applicant. The Town Board may cancel the public hearing if the applicant fails to submit all of the required information.
(f)
The Town Board shall conduct the public hearing, affording all interested persons an opportunity to speak. At the conclusion of the public hearing, the Town Board shall direct the applicant to submit any additional information it determines is necessary to make a determination of the application, if any. The Town Board shall formally act on said application no later than 62 days after the close of the public hearing.
(g)
Prior to acting upon said application, the Town Board shall obtain a written recommendation from the Town Planning Board as to whether the Biomass Gasification-to-Energy District should be created. The Town Planning Board shall furnish such recommendation within 45 days after a request therefor from the Town Board. If the Planning Board fails to provide such recommendation within the forty-five-day period, then the Town Board shall be free to proceed with the application. Any recommendation offered by the Planning Board shall be advisory only and shall not be considered to be binding upon the Town Board.
(h)
In the event the Town Board creates a new Biomass Gasification-to-Energy District, the Town Board shall cause the Town of Montgomery Zoning Map to be amended accordingly and shall forward copies of its determination regarding the petition to the Town Planning Board.
D.
Standards for the creation of Biomass Gasification-to-Energy Districts. In considering an application for the creation of a Biomass Gasification-to-Energy District, the Town Board shall consider all relevant factors, including the following:
(1)
The consistency of the proposed Biomass Gasification-to-Energy District with the Town of Montgomery Comprehensive Plan and the Zoning Law.
(2)
The character of the neighborhood in which the proposed Biomass Gasification-to-Energy District would be located.
(3)
The general zoning classification of the area in which the proposed Biomass Gasification-to-Energy District would be located.
(4)
The proximity of the proposed Biomass Gasification District to other Biomass Gasification-to-Energy Districts or biomass gasification-to-energy operations or other solid waste management facilities allowed under § 235-15.4C(37).
(5)
Impact of the biomass gasification-to-energy operation on the immediate area and any haulageways.
(6)
Consideration of the proposed district's ability to support a biomass gasification-to-energy facility that complies with applicable bulk regulations and special use exception criteria and other applicable requirements.
(7)
Any other factors the Town Board considers relevant.
E.
Term, existence and termination of Biomass Gasification-to-Energy District. Every Biomass Gasification-to-Energy District once created shall remain in existence until either the permanent abandonment of biomass gasification operations on site or the termination of the facilities' biomass gasification-to-energy special use permit issued in accordance with Subsection F below or appropriate legislative action of the Town Board to amend the Zoning Law. Upon the permanent termination of biomass gasification operations, the owner of the premises or the person responsible for the biomass gasification operations conducted therein shall commence closure and decommissioning of the biomass gasification-to-energy facility in accordance with a plan approved by the New York State Department of Environmental Conservation or any closure conditions and restrictions imposed by the Town Board in conjunction with its issuance of a biomass gasification-to-energy special use permit in accordance with Subsection F. The person responsible for the biomass gasification operation shall advise the Town Board, in writing, upon the commencement of decommissioning and closure and the completion of such activities.
F.
Town Board biomass gasification-to-energy special use permits.
(1)
Notwithstanding any other provisions in the Zoning Law to the contrary, the Town Board shall be authorized to issue Town Board biomass gasification-to-energy special use permits. No person shall construct or operate a biomass gasification-to-energy facility, or undertake biomass gasification operations within the Town, except within a Biomass Gasification-to-Energy District and except pursuant to a biomass gasification-to-energy special use permit issued by the Town Board in accordance with the procedures set forth in this subsection.
(2)
The Town Board shall review and consider the same information as that required for the creation of a Biomass Gasification-to-Energy District under Subsection C(2) of this section. The permit application may be combined with the petition for the creation of the Biomass Gasification-to-Energy District when submitted to the Town Board. The Town Board shall require the applicant to establish an escrow fund which will reimburse the Town for the expenses paid by the Town to designated Town consultants for reviewing the application. The amount to be deposited with the Town, terms for disbursement of the funds, and requirements for replenishment of the fund shall be detailed in an escrow agreement to be executed between the applicant and the Town.
(3)
The Town Board shall consider the application for a Town Board biomass gasification-to-energy special use permit at its next regular meeting occurring at least 10 days after receipt of a complete application; unless the application is submitted in conjunction with a petition for the creation of the Biomass Gasification-to-Energy District, in which case the less restrictive application review time frame shall control.
(4)
No Town Board biomass gasification-to-energy special use permit shall be granted by the Town Board unless it shall determine:
(a)
The applicable provisions prescribed for the Town Board biomass gasification special use permit have been met.
(b)
The general standards set forth in § 235-15.4B have been met.
(c)
The biomass gasification-to-energy facility conforms with all applicable regulations governing the Biomass Gasification-to-Energy District where it is to be located.
(d)
The biomass gasification-to-energy facility meets the siting and design requirements listed in § 235-15.4C(37)(d)[1] through [11] of this chapter, setting forth siting and design requirements for recycling handling and recovery facilities, including composting operations, recyclable handling and recovery facilities, including post-collection separation facilities, waste tire storage facilities, construction and demolition debris processing facilities, waste transfer stations, and wood-chipping facilities.
(e)
The applicant has shown or confirmed that the biomass gasification-to-energy facility will be designed and operated to meet the operations requirements listed in § 235-15.4C(37)(e)[1][a], [b], [c], [f], [h], and [i] of this chapter, except as modified in this § 235-7.12.
Note: Consistent with Subsection G below, the specific operations requirements in § 235-15.4C(37)(e)[2], [3] and [5] pertaining to operations at a composting facility, a recyclable handling and recovery facility, including a post-collection separation facility, and/or a construction and demolition debris processing facility, shall continue to apply to such facilities used as part of a biomass gasification-to-energy facility operation, and the operations plan submission requirements specified in § 235-15.4C(37)(e)[1] shall remain in effect and shall be extended to include all biomass gasification-to-energy facility operations.
(f)
The biomass gasification-to-energy facility, and all components thereof, meet bulk requirements in § 235-7.2 that are applicable to a composting facility, a recyclable handling and recovery facility, including a post-collection separation facility, and/or a construction and demolition debris processing facility as part of its biomass gasification operation (whether or not the proposed biomass gasification-to-energy facility utilizes such facilities), except as otherwise provided therein for specific components of such facility.
(g)
The proposed use will be in harmony with the Town of Montgomery Zoning Law and will not adversely affect the neighborhood if the requirements imposed by the Town of Montgomery Zoning Law are met.
(h)
The biomass gasification-to-energy facility must comply, at a minimum, with all applicable federal and state requirements, including but not limited to 6 NYCRR Part 360 as amended from time to time.
(i)
The biomass gasification-to-energy facility must demonstrate compliance with the approved Orange County Solid Waste Management Plan.
(5)
In issuing a Town Board biomass gasification special use permit, the Town Board may impose reasonable conditions and restrictions related and/or incidental to the general and specific standards applicable to the proposed use. The foregoing is in addition to and shall not limit the Town Board's independent authority to impose conditions and restrictions pursuant to the New York State Environmental Quality Review Act.
G.
Town Board site plan review and approval jurisdiction for biomass gasification-to-energy facilities. Notwithstanding any other provisions in the Zoning Law to the contrary, the Town Board shall retain the jurisdiction granted under New York State Town Law Article 16, § 274-a, to review and approve any site plan for the development of a biomass gasification-to-energy facility. No person shall construct or operate a biomass gasification-to-energy facility, or undertake biomass gasification operations within the Town, except in accordance with an approved site plan. No building permit for the development or construction of a biomass gasification-to-energy facility or any portion thereof shall be granted except in accordance with an approved site plan. The site plan must comply, at a minimum, with all of the requirements of § 235-16 of this chapter, as amended.
H.
Operations.
(1)
At least three months prior to the commencement of operations, the applicant shall submit an operations plan to the Town Board that i) provides an overview of daily biomass gasification operations and maintenance schedules, ii) demonstrates compliance with all applicable standards applicable to biomass gasification facilities, and conditions or restrictions imposed in connection with the Town Board's issuance of a Town Board biomass gasification special use permit, and iii) meets the criteria established in § 235-15.4C(37)(e)[1][a] through [i] of this chapter, as modified below, setting forth general operating requirements for recycling handling and recovery facilities, including composting operations, recyclable handling and recovery facilities, including post-collection separation facilities, waste tire storage facilities, construction and demolition debris processing facilities, waste transfer stations, and wood-chipping facilities; provided, however, that the applicant shall submit the facility report required by § 235-15.4C(37)(e)[1][d] to the Town Board and the Planning Board. The applicant's failure to timely submit the required operations plan shall result in the automatic revocation of the issued Town Board biomass gasification special use permit, unless the Town Board grants an extension of time to the applicant for good cause shown.
(a)
Hours of operation. Waste material may only be accepted at the facility between the hours of 7:00 a.m. and 4:30 p.m. weekdays and 7:00 a.m. to 12:00 p.m. Saturdays. The facility's gasification process and electric-generating operations may proceed on a twenty-four-hour-per-day, seven-day-per-week basis. Maintenance service activities may proceed on an as-needed basis.
(2)
If the biomass gasification-to-energy facility utilizes a composting facility, a recyclable handling and recovery facility, including a post-collection separation facility, and/or a construction and demolition debris processing facility as part of its biomass gasification operation, the aforementioned operations plan must also meet the applicable criteria established in § 235-15.4C(37)(e)[2], [3] and [5] of this chapter, respectively, provided however that all documentation or information subject to review by the Town shall be submitted to the Town Board and the Planning Board.
(3)
Notwithstanding anything to the contrary, if a biomass gasification-to-energy facility utilizes a recycling handling and recovery facility, including a post-collection separation facility, such facility is hereby permitted to receive only acceptable biomass source material as defined above.
I.
Term of the Town Board biomass gasification special use permit. The term of the biomass gasification special use permit shall coincide with the term set forth herein for the applicable Biomass Gasification-to-Energy District; provided, however, the Town Board may revoke such permit if it determines that the applicant has failed to comply with the conditions of permit issuance.
J.
Financial assurance. The owner and operator of a biomass gasification-to-energy facility will be required to provide for financial assurance for facility closure as provided in § 235-15.4C(37)(f) of this chapter. The Town Board shall specify that such financial assurance be provided in advance of commencement of construction and address costs associated with the closure, decommissioning and dismantling of the project if it is abandoned prior to and/or after the commencement of operations.
K.
Penalties and remedies. The failure to maintain and operate a biomass gasification-to-energy facility as required by these regulations shall be grounds for enforcement and the imposition of attendant penalties provided for in § 235-15.4C(37)(g) of this chapter.
L.
Monitoring fees. In connection with a biomass gasification special use permit granted hereunder, the permittee shall pay to the Town of Montgomery a post permit monitoring fee provided for in § 235-15.4C(37)(i) of this chapter.
M.
Prohibition against transfer station operations. All waste material delivered to the facility shall be processed at the site in full accordance with the facility's local and state permits and approvals. The use of the biomass gasification-to-energy facility or any components thereof as a solid waste transfer station operation is strictly prohibited. The operator and/or owner of the facility shall notify the Town Code Enforcement Officer within 12 hours of any unplanned occurrence or provide 48 hours prior notice of a planned occurrence at the site which will or does result in the facility no longer being able to process any or all of the waste stream components typically accepted at the facility. Such notification shall explain in reasonable detail the nature of the occurrence and the steps the facility has taken or will take to implement necessary contingency measures to remove from the site any waste material that cannot be processed and what arrangements have been made to stop any further receipt of those portions of the waste stream that can no longer be processed in accordance with the facility's local and state permits and approvals. The specific contingency measures to be implemented at the site for a planned or unplanned occurrence shall be made part of the issued biomass gasification special use Ppermit. Violation of the provisions of this Subsection M shall be considered a violation of the facility's biomass gasification special use permit.
N.
Host community benefit agreement. Any facility granted a biomass gasification special use permit may also be subject to the terms of a host community benefit agreement executed between the permit holder and the Town to compensate the Town for the unique demands for public services and potential unmitigated impacts that may result from the operation of the biomass gasification-to-energy facility.