Rotterdam City Zoning Code
ARTICLE XXV
Supplemental Regulations
[Added 8-8-2001 by L.L. No. 9-2001]
§ 270-214 Adult entertainment uses.
A.
Findings and legislative intent.
(1)
It is recognized that there are some uses which, because of their very nature, have serious objectionable operational characteristics under certain circumstances, which produce a deleterious effect upon adjacent areas. Special regulation of these uses is necessary to ensure that adverse effects will not contribute to the blighting or downgrading of the surrounding neighborhood. The Town Board of the Town of Rotterdam finds it in the public interest to enact these regulations. The purpose of these regulations is to prevent or lessen the secondary effects of adult entertainment uses, and not to inhibit freedom of speech.
(2)
The unrestrained proliferation and inappropriate location of such businesses is inconsistent with existing development and future plans for the Town of Rotterdam in that they often result in influences on the community which increase the crime rate and undermine the economic and social welfare of the community. The deleterious effects of these businesses change the economic and social character of the existing community and adversely affect existing businesses and community and family life.
B.
Definitions. As used in this section, the following terms shall have the meanings indicated:
ADULT ENTERTAINMENT USES
(1)
ADULT BOOK AND/OR VIDEO STORE
An establishment having as a substantial or significant portion of its stock-in-trade books, magazines, periodicals or other printed matter or photographs, films, videos, slides or other visual representations, which are characterized by the exposure or emphasis of specified sexual activities or specified anatomical areas or instruments, devices or paraphernalia which are designed for use in connection with specified sexual activities which are for sale, rental or viewing on or off the premises.(2)
ADULT ENTERTAINMENT CABARET
A public or private establishment which regularly presents topless and/or bottomless dancers, strippers, waiters or waitresses, male or female impersonators, lingerie models or exotic dancers, or other similar entertainment or films, motion pictures, videos, slides or other photographic material, or which utilizes employees who, as part of their employment, regularly expose patrons to specified sexual activities or specified anatomical areas.(3)
ADULT THEATER
A theater, concert hall, auditorium or similar establishment which, for any form of consideration, regularly features live performances characterized by the exposure of specified sexual activities or specified anatomical areas.(4)
ADULT MOTION PICTURE THEATER
Any motion-picture theater where, for any form of consideration, films, motion pictures, videocassettes, slides or other photographic reproductions are shown, and in which a substantial portion of the total presentation time is devoted to the showing of material characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.(5)
MASSAGE ESTABLISHMENT
Any establishment having a fixed place of business where massages are administered for pay, including but not limited to massage parlors, sauna baths or steam baths. This definition shall not be construed to include a hospital, nursing home or medical clinic or the office of a physician, surgeon, chiropractor, osteopath, duly licensed physical therapist or duly licensed massage therapist or barbershop or beauty salon, athletic club, health club, school, spa or similar establishment where massage or similar manipulation of the human body is offered as an incidental accessory service.(6)
ADULT MODEL STUDIO
Any place where a person who appears in a state of nudity or who displays specified anatomical areas is provided to be observed, sketched, drawn, painted, sculpted, photographed or similarly depicted by other persons who pay money or any form of consideration.(7)
PEEP SHOWS
A theater which presents materials distinguished or characterized by primary emphasis on matters depicting, describing or relating to specified sexual activities or specified sexual anatomical areas, in the form of live shows, films or videotapes, viewed from an individual enclosure, for which a fee is charged.SPECIFIED ANATOMICAL AREAS
(1)
Less than completely and opaquely covered human genitals, pubic region, buttock and female breast below a point immediately above the top of the areola; and
(2)
Human male genital in a discernible turgid state even if completely and opaquely covered.
SPECIFIED SEXUAL ACTIVITIES
(1)
Human genitals in a state of sexual stimulation or arousal; or
(2)
Acts of human masturbation, sexual intercourse or sodomy; or
(3)
Fondling or other erotic touching of human genitals, pubic region, buttocks or breasts.
C.
Location restrictions. Notwithstanding Chapter 217 of the Rotterdam Code, adult entertainment uses shall be permitted only in Industrial Zoning Districts known as "Duanesburg Road, Rotterdam, New York," Tax Identification Numbers 58.00-1-200./1, 58.00-1-200./3, 58.00-1-2.2, 48.18-7-35, 48.18-7-36, 48.18-7-37, 48.18-7-38, 48.18-7-39, and subject to the following restrictions:
(1)
Adult entertainment uses are prohibited within:
(a)
Five hundred feet of any zoning district which is zoned to allow residential use.
(b)
Five hundred feet of any single-family, two-family or multiple-family dwelling, including structures devoted to both residential and commercial or business purposes.
(c)
Five hundred feet of any public or private school.
(d)
Five hundred feet of any church or other religious facility or institution.
(e)
Five hundred feet of any public park, public bike path, playground or playing field, cemetery, civic or recreational facility.
(2)
No adult entertainment use shall be allowed within 500 feet of another existing adult entertainment use.
(3)
No more than one adult entertainment use shall be located on any lot.
(4)
The distances provided hereinabove shall be measured by following a straight line, without regard to intervening buildings, from the nearest point of the property parcel upon which the adult entertainment use is to be located to the nearest point of the parcel of property or the land use district boundary line from which the adult entertainment use is to be separated.
D.
Other restrictions.
(1)
No adult entertainment use shall be conducted in any manner that allows the observation of any material depicting, describing or relating to specified sexual activities or specified anatomical areas from any public way or from any property not containing an adult entertainment use. This provision shall apply to any display, decoration, sign, show, window or other opening.
(2)
There shall be no outdoor sign, display or advertising of any kind other than one identification sign limited to only the name of the establishment.
(3)
Adult entertainment uses shall obtain site plan approval from the Planning Board in accordance with Chapter 270, Article XVII, of the Zoning Code.
(4)
Adult entertainment uses shall meet all other regulations of the Town of Rotterdam, including but not limited to district lot and bulk regulations, parking regulations and signage.
(5)
It shall be unlawful to operate an adult entertainment use between the hours of 12:00 midnight and 8:00 a.m.
§ 270-214.1 Battery energy storage system.
[Added 12-17-2005 by L.L. No. 10-2025]
A.
Title. This section shall be known as the "battery energy storage system."
B.
Legislative intent and purpose.
(1)
It is the intent of this section to amend the Town of Rotterdam Zoning Law, as the same may have been amended from time to time, to enact provisions providing for small-scale battery energy storage system (S-BESS), large-scale battery energy storage system (L-BESS) and utility-scale battery energy storage systems (U-BESS) installations in the Town, as defined in this section through addition of a new section, § 270-214.1, battery energy storage systems, to Article VIII (Supplementary Regulations) of the Town of Rotterdam Zoning Law. It is further the intent and purpose of this section to, in accordance with the Town of Rotterdam Comprehensive Plan, to responsibly locate large-scale battery energy storage systems (L-BESS) and utility-scale battery energy storage systems (U-BESS) within the Town. Accordingly, this section modifies certain use definitions relating to prohibited uses, energy storage systems, and public utilities.
(2)
The Town finds that well-planned, suitably sized, and located battery energy storage systems can be beneficial. This section seeks to foster thorough project planning and appropriate siting by:
(a)
Protecting the health, safety, and well-being of our first responders through responsible siting, pre-incident planning and education, continuing education and training, adequate protection and equipment, and the implementation of best practices to reduce potential hazards.
(b)
Allowing Town of Rotterdam residents, landowners, farms, and government to safely locate battery energy storage systems resources in a way that is consistent with the nature and character of the Town in accordance with the Town of Rotterdam Comprehensive Plan and the Natural Resources Inventory.
(c)
Promoting and supporting our Town's Open Space Plan with battery energy storage systems zoning that protects and preserves open space, agricultural lands, and environmentally significant areas of Town as designated by our Comprehensive Plan and Conservation Plan.
(d)
Protecting the Town's unique ecosystem of plants, wildlife, and habitats, particularly in the western upland and rural areas of Town.
(e)
Recognizing the importance of Agriculture and protecting water and soils conducive to farming. Agricultural areas and surrounding areas should not be used for utility-scale battery energy storage systems (U-BESS).
(f)
Protecting and ensuring farmland, agricultural land, and forested land are put to their highest and best use.
(g)
Protecting and promoting scenic and environmental resources by minimizing utility-scale battery energy storage systems (U-BESS) facilities' impacts on these resources as outlined in the Rotterdam Comprehensive Plan including, but not limited to, fresh watersheds, floodplains, historic sites, conservation easements, trails, parklands, wetlands, wildlife, and scenery, and areas for recreational and outdoor activities.
(h)
Protecting the property values of those properties neighboring and within the viewshed and soundshed of a utility-scale battery energy storage systems (U-BESS).
(i)
Conserving the rural character of western Rotterdam and rural hamlets, including Rotterdam Junction and Pattersonville.
C.
Authority. This section is adopted by the Town Board of Town of Rotterdam (hereinafter referred to as the "Town Board") pursuant to its authority to adopt local laws under Article IX of the New York State Constitution; Articles 2 and 3 of the Municipal Home Rule Law; Article I of the Town Zoning Law, particularly Subsection B which authorize the Town to adopt zoning provisions that promote health and general welfare, encourage the most appropriate use of land throughout the Town, encourage development in accordance with a comprehensive plan and professional planning techniques, and improve the quality of life throughout the Town.
D.
Definitions. See § 270-5 of the Town Code.
E.
Applicability.
(1)
The requirements herein shall apply to all battery energy storage systems and equipment installations modified or installed after the effective date of this section, excluding general maintenance and repair.
(2)
Modifications to an existing battery energy storage systems that increase the battery system's area by more than 5% (exclusive of moving any fencing) from original approval shall be subject to this section.
(3)
All battery energy storage systems shall be designed, erected, and installed in accordance with all applicable codes, regulations, and industry standards as referenced in the NYS Uniform Fire Prevention and Building Code ("Building Code") the NYS Energy Conservation Code, and the Code of the Town of Rotterdam ("Town Code"). Whichever code is more stringent shall govern.
(4)
To the extent that any other Town law, rule or regulation, or parts thereof, are inconsistent with the provisions of this section, the provisions set forth in this section shall control only as they pertain to battery energy storage systems.
(5)
Any proposed battery energy storage systems subject to review by the New York Board on Electric Generation and Siting and the Environment pursuant to Article 10 of the New York State Public Service Law, or the Office of Renewable Energy Siting pursuant to Article 94-c of the Executive Law, shall be subject to all substantive provisions of this section and any other applicable laws, codes, ordinances and regulations of the Town, and any other applicable state or federal laws.
F.
Prohibited use: utility-scale battery energy storage systems.
(1)
U-BESS failure has the potential to undermine public health, safety and welfare, will potentially be situated in locations without access to water supply for fire suppression, and will overtax the Town's first responders. U-BESS failure and ensuing thermal runaway and fire can produce a range of toxic gasses and particulates, including several highly toxic compounds including benzene, toluene, styrene, biphenyl, hydrogen fluoride and many others.
(2)
U-BESS is a permitted in the I-2 zoning districts.
(3)
U-BESS is not permitted in the aquifer recharge zone and tributary areas.
(4)
U-BESS is not permitted in the hamlet of Pattersonville-Rotterdam Junction.
G.
Large-scale battery energy storage systems as a special use.
(1)
Allowing L-BESS for on-site power consumption in existing districts for B-1, B-2, C-1, and I-1 is permitted as a special use with the understanding that all existing zoning and planning requirements are met as well as the guidelines in this section.
H.
Utility-scale battery energy storage systems as an allowable use.
(1)
Allowing U-BESS in existing I-2 is permitted with the understanding that all existing zoning and planning requirements are met as well as the guidelines in this section.
I.
General requirements.
(1)
Applicability:
(a)
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 applicable amendments to this section, excluding general maintenance and repair.
(b)
Battery energy storage systems constructed or installed prior to the effective date of applicable amendments to this section shall not be required to meet the requirements of this section.
(c)
Modifications to, augmentations, 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.
(2)
General requirements:
(a)
A building permit and an electrical permit shall be required for installation of all battery energy storage systems. The building permit shall be administered in accordance with Town requirements, including this section.
(b)
Issuance of permits and approvals under this section shall include review pursuant to the State Environmental Quality Review Act, as appropriate.
(c)
All battery energy storage systems and all other buildings or structures that (1) contain or are otherwise associated with a battery energy storage system and (2) are subject to the Uniform Code and/or the Energy Code shall be designed, erected, installed, and operated in accordance with all applicable provisions of the Uniform Code.
(d)
Application fees. Application for construction of a battery energy storage system shall be subject to the payment of fees in amounts indicated in the Town Schedule of Fees as adopted by the Town Board.
J.
Small-scale battery energy storage systems: permitting requirements.
(1)
Zones allowed. Allowed by right in all zones.
(a)
Applications, approvals, fees, and permits. S-BESS application and building permit. Fees in accordance with the most current version of the Town of Rotterdam Fee Schedule. Systems in a nonresidential zone may require site plan reviews under other sections of Town Code.
(2)
Setbacks:
(a)
S-BESS shall conform to the setbacks in the subject zoning district. If there is an existing structure and nonconforming with its zone requirements, setbacks for new structures shall conform to the current Town Code.
(3)
Specific requirements:
(a)
S-BESS shall be required to display a permanent plaque or directory placed in an exterior location near the main or front entry of a residence or other structure that is readily visible to firefighters to identify system disconnect location(s). The plaque or directory shall meet all New York State Building Code standards for reflection, lettering, and color for easy visibility.
K.
Large-scale battery energy storage systems: permitting requirements.
(1)
Zones allowed. Allowed by special use in Zones B-1, B-2, C-1, I-1 and I-2.
(2)
Applications, approvals, fees, and permits. L-BESS application and building permit fees shall be in accordance with the most current version of the Town of Rotterdam Fee Schedule. Nonresidential systems may require site plan reviews under other sections of Town Code.
(3)
Setbacks:
(a)
L-BESS located by special use shall be set back from the property line at a minimum of 100 feet.
(b)
L-BESS facility areas shall be setback at a minimum of 150 feet from wetlands, ponds, and streams, unless otherwise modified or waived by the Planning Commission of the Town of Rotterdam ("Planning Commission") upon receiving proper permit from a state or federal regulatory agency.
(c)
The following may not be subject to required property line setback herein unless otherwise directed by the Town of Rotterdam Planning Commission.
[1]
Access roads proposed from a public road to the fence of a L-BESS facility, including any stormwater management, or other necessary infrastructure installed for the purpose of this access road.
(4)
Specific requirements:
(a)
L-BESS when located outside of a building or structure the L-BESS shall be in a side or rear yard.
(b)
L-BESS shall be required to display a permanent plaque or directory placed in an exterior location near the main or front entry of the building or structure that is readily visible to firefighters to identify system disconnect location(s). The plaque or directory shall meet all New York State Building Code standards for reflection, lettering, and color for easy visibility.
(c)
L-BESS shall be required to be self-contained and have a built-in fire extinguishing system supplied by the L-BESS manufacturer.
(d)
L-BESS shall be allowed only in zoning districts where there is fire hydrants fed from a municipal water supply within 500 feet of the L-BESS batteries unless otherwise modified or waived by the Planning Commission. L-BESS are not allowed in any zoning district without municipal water. L-BESS is prohibited in the hamlet of Pattersonville-Rotterdam Junction.
(e)
Where site plan approval is required elsewhere in the regulations of the Town for the principal use, the L-BESS shall be subject to site plan review. In its review of the site plan, the Planning Commission shall apply the standards and procedures set forth in Subsection K, Review, of this section. Site plan review of L-BESS development shall include review of the adequacy, location, arrangement, size, design, screening, accessibility for emergency response purposes, and general site compatibility of proposed L-BESS.
(f)
The Planning Commission may require a submission of a noise analysis, an emergency response plan as part of the site plan application, and/or a decommissioning plan. The Planning Commission may require a performance guarantee, in accordance with the provisions of this section, Subsection M.
(g)
The Planning Commission may require after consultation with the responding fire district that the applicant and/or operator of the L-BESS to provide safety and first responder training. The Town may, from time to time, require training of new personnel, and funding, or other mechanism to cause such training to be provided, as determined by the Town, shall be provided by the owner/operator upon request by the responding fire district.
(h)
Only (1) L-BESS may be located on a single parcel with a minimum of two acres.
(i)
Preconstruction for L-BESS projects shall include well water and ground contamination testing, unless the requirements of this section and the following subsections are otherwise modified or waived by the Planning Commission.
[1]
The applicant, Town, and TDE shall develop a list of potential contaminants that will be tested for, and the location of testing based on the proposed equipment for the L-BESS facility prior to testing.
[a]
List of contaminants that may be tested for includes but is not limited to: sulfuric acid, mercury, nickel, cadmium (known carcinogen), cadmium telluride, lead, lithium, cobalt, lithium, iron, arsenic, silicon, copper, silver, selenium, copper indium selenide, copper indium gallium, diselenide, (di)selenide, hexafluoroethane, polyvinyl fluoride, PFAS, and any other contaminant required for testing by the Town, county or state for this type of facility at the time testing takes place.
[2]
At the applicant's cost, an escrow account with the Town shall be established to provide an independent third-party testing agency that may provide testing of the facility area and of water wells on properties within 1,000 feet of the facility area.
[3]
At the applicant's expense, notice shall be given to all property owners within 1,000 feet that water well testing is available prior to L-BESS construction at the cost of the L-BESS applicant.
[4]
Preconstruction testing: Initial testing shall take place within 12 months of establishing a special escrow account. Test results for the participating L-BESS properties shall be furnished to the Town.
(j)
L-BESS must have a continuously maintained connection to the municipal water supply, unless otherwise modified or waived by the Planning Commission. The L-BESS application must obtain in writing from the local fire department the type of fire department connection.
(k)
Unless the requirements of this section and the following subsections are otherwise modified or waived by the Planning Commission, L-BESS shall not be located within one half mile of public structures that are or can be by the Building Code of New York as designated as follows:
[1]
Category III — structures that represent substantial hazard to human life.
[2]
Category IV — structures designated as essential facilities.
L.
Utility-scale battery energy storage systems: permitting requirements.
(1)
Zones allowed. Allowed by right in Zone I-2.
(2)
Applications, approvals, fees, and permits. U-BESS development application, site plan, special use permit approval process, and building permit fees shall be in accordance with the most current version of the Town of Rotterdam Fee Schedule.
(a)
A pre-submission conference with the Town is required. The applicant shall provide the opportunity for an on-site visit by any interested Town committee or Town Board members.
(3)
Setbacks:
(a)
U-BESS located in zone I-2 shall be set back from the property line at a minimum of 100 feet.
(b)
U-BESS facility areas shall be setback at a minimum of 150 feet from wetlands, ponds, and streams, unless otherwise modified or waived from this requirement by the Planning Commission upon receiving proper permit from a state or federal regulatory agency.
(c)
The following may not be subject to required property line setback herein unless otherwise directed by the Town of Rotterdam Planning Commission.
[1]
Access roads proposed from a public road to the fence of a U-BESS facility, including any stormwater management, or other necessary infrastructure installed for the purpose of this access road.
(4)
Escrow for review and operations. U-BESS projects will require more oversight and services by the Town and their selected consultants. In addition to the normal escrow requirements of Subsection G, the account shall also include adequate funding for any necessary mailings by the Town, construction inspection, annual inspections, and for monitoring during operation of the facility. The escrow account shall be replenished when required by the Town and shall be maintained for the life of the project. Failing to replenish the account will result in enforcement action by the Town or activating the decommissioning agreement.
(5)
Specific requirements:
(a)
All applicable requirements listed under Subsection I, and all requirements of Subsection L of this section.
(b)
The applicant shall disclose the full scope of the planned size of the project, including any other involved municipalities, and shall not segment the application for purposes of reducing the apparent significance of proposed plans. Where the Planning Commission or lead agency for State Environmental Quality Review has substantial proof that the ultimate scope of the project may exceed that which is being proposed by the applicant, it shall conduct its review and base its findings on the larger potential scope.
(c)
In addition, site plans shall contain the following:
[1]
Location map showing types of existing structures and uses on the site, public roads, and properties with abutting boundaries of the site including any bordering municipalities.
[2]
Site plan shall provide surveyed data of abutting properties to the participating property parcel(s) showing all principal and accessory buildings (residential and commercial), roads, utilities and private or public wells, and labeling distances from those features to the participating property boundary.
[3]
Location and description of all U-BESS components, whether on site or off site, all above and below-ground utility lines on the site, transformers, POI, renewable energy electrical substations when required for project, fencing, laydown, and storage areas to be used as part of construction and other ancillary facilities or structures.
[4]
Proposed changes to the landscape of the site, grading, vegetation clearing and planting, exterior lighting, and screening vegetation or structures.
[5]
Label all setback distances as required by Town laws;
[6]
Part 1 of a Full Environmental Assessment Form for SEQRA.
[7]
Upon receipt of an application the Town requires proof of mailing, at the Applicant's expense, a notice of the proposed project to all abutting owners of property to the participating property boundaries regardless of municipality. Notices shall contain a summary of the project, a designated contact person, with telephone number, e-mail address, and mailing address from whom information will be available on a going forward basis.
[8]
An electrical one-line diagram detailing the, associated components, and electrical interconnection methods, with all disconnects and overcurrent devices identified.
[9]
Manufacturer data on all proposed U-BESS components.
[10]
Documentation of access to the facility area via a lease agreement or other instrument to show the landowner's consent to the project.
[11]
Documentation of utility notification, including proof of interconnection agreement. Projects not viable to the utility company shall not be considered by the Planning Commission.
[12]
Decommissioning plan, including cost estimate and description and form of financial surety as described in other sections of this section.
[13]
Deforestation. Previously cleared or disturbed areas are preferred locations for U-BESS projects.
[14]
Unless this section and the following subsections are modified or waived by the Planning Commission, an acoustical noise studies by an independent third-party vendor shall be submitted with the application, which provides analysis of all noise- generating equipment that may be included in the project, including for construction. Noise generated from the U-BESS components and associated ancillary equipment, including but not limited to transformers, inverters, storage devices and substations shall provide for no discernable difference from existing noise levels at property lines. The study shall contain:
[1]
Actual measurements of existing daytime and nighttime ambient noise at the boundary of the participating properties. Ambient noise testing locations and schedule shall be discussed with the Planning Commission before testing takes place.
[2]
Proposed noise model to predict potential increase in noise from the project for pre-construction and post-construction conditions at both the project boundaries and nearest adjacent receptors (neighboring houses, etc.).
[3]
Noise studies shall follow industry norms and report their findings using A-weighted methodologies. The Planning Commission may require additional analysis as they deem appropriate and may require noise mitigation or additional setbacks as needed to meet this requirement.
(d)
As part of the operation, safety and maintenance plan in Subsection N of this section, the applicant shall document existing firefighting resources near or on the participating properties that may include but not limited to: distance to nearest fire hydrant, dry hydrants, ponds, or other waterbodies for drawing water in emergency situations.
(e)
U-BESS shall not exceed a maximum project size of five contiguous acres, unless this requirement is modified or waived by the Planning Commission.
(f)
In addition to Subsection L(6)(f) of this section, required notice to surrounding landowners shall contain a link to a project website, created and paid for by the applicant, which is meant to disseminate information to the public. At the applicant's expense, publication of notice of application shall be made in newspapers designated by the County of Schenectady and Town for the same. Notice shall also be provided to each member of the State and County Legislature in whose district any portion of the proposed U-BESS is in, or which district the project abuts upon.
(g)
Upon submission of an application, the applicant shall conspicuously post signage on the frontage of participating properties at all roads abutting the proposed project and at the proposed entryways/exits to the project. Signage must be of sufficient size to contain the name of the proposed project, the application number, a rough concept map of the project, and contact information for the developer as well as a proposed project website address. Signage shall be sized and placed at a safe distance from the public roadway as to not interfere with sight distance on the roadway or any adjacent driveways.
(h)
In addition to noise studies requirements under Subsection L of this section, within 90 days of project completion the applicant or facility owner shall conduct a post-construction noise sampling at locations and schedule discussed with the Planning Commission prior to testing. If noise sampling is found to be greater than predictions, the applicant may be required to mitigate the sound to a level sufficient to the Planning Commission. Failure to implement mitigation measures within 90 days of notice will result in enforcement procedures by the Town. The applicant may request one 90-day extension if reasonable evidence that the requested measures cannot be completed in 90 days. Further, violations and penalties of this provision shall be in accordance with other sections of Town Code concerning noise violations. The Town may use the project's escrow account to hire an independent third-party engineer/noise monitor to oversee compliance with noise requirements and the ongoing obligation of the same for the lifetime of the project.
(i)
At the Planning Commission's discretion, a road use agreement may be required for the desired traffic route.
(j)
Preconstruction for U-BESS projects shall include well water and ground contamination testing, unless this requirement and the requirements of the following subsections are modified or waived by the Planning Commission, as follows:
[1]
The applicant, Town, and TDE shall develop a list of potential contaminants that will be tested for, and the location of testing based on the proposed equipment for the U-BESS facility prior to testing.
[a]
List of contaminants that may be tested for includes but is not limited to: sulfuric acid, mercury, nickel, cadmium (known carcinogen), cadmium telluride, lead, lithium, cobalt, lithium, iron, arsenic, silicon, copper, silver, selenium, copper indium selenide, copper indium gallium, diselenide, (di)selenide, hexafluoroethane, polyvinyl fluoride, PFAS, and any other contaminant required for testing by the Town, county or state for this type of facility at the time testing takes place.
[2]
At the applicant's cost, an escrow account with the Town shall be established to provide an independent third-party testing agency that may provide testing of the facility area and of water wells on properties within 1,000 feet of the facility area.
[3]
At the applicant's expense, notice shall be given to all property owners within 1,000 feet of the facility area that water well testing is available prior to U-BESS construction at the cost of the U-BESS applicant.
[4]
Initial testing shall take place within 12 months of establishing a special escrow account. Test results for the participating U-BESS properties shall be furnished to the Town.
(k)
Landscape and screening. Buffers shall use existing vegetation to the fullest extent practicable. If existing vegetation does not provide the desired screening or buffer width it shall be supplemented with new landscaping to form a continuous hedge at least 14 feet in height at planting shall be required and maintained for the life of the project. Berms, solid fencing, and opaque enclosures are the least desirable method of screening but may be proposed in situations where existing or new landscaping for screening is not practical. New landscaping proposed for the project shall be species native to the region and selected by a registered landscape architect. All landscaping and screening methods shall be maintained and replaced as necessary during the life of the project.
(l)
U-BESS must have a continuously maintained connection to the municipal water supply, unless otherwise modified or waived by the Planning Commission. The U-BESS application must obtain in writing from the local fire department the type of fire department connection.
(m)
Unless the requirements of this section and the following subsections are otherwise modified or waived by the Planning Commission, U-BESS shall not be located within one half mile of public structures that are or can be by the Building Code of New York as designated as follows:
[1]
Category III — structures that represent substantial hazard to human life.
[2]
Category IV — structures designated as essential facilities.
M.
Required agreements. The following applies to utility-scale battery energy storage systems (U-BESS), unless any of the requirements or conditions of this section are waived or modified by the Planning Commission:
(1)
Road use agreement. The applicant shall execute a road use agreement with the Town if Town roads are to be used for the project. Prior to the issuance of the building permit and commencement of construction, an existing condition assessment of the proposed hauling routes using Town roads shall be undertaken by the applicant at the applicant's expense. Any damage to a Town or county road during construction caused by the operator or its subcontractors shall be repaired or reconstructed to the satisfaction of the Town Highway or County Highway Superintendent at the operator's expense.
(2)
Performance guarantees. The Town will require the applicant or facility owner to provide, prior to construction, a performance bond or cash escrow that names the Town of Rotterdam as the beneficiary, to ensure proper operation and maintenance of all below noted facilities, both during and after construction and until the U-BESS is removed from operation. If the applicant or facility owner fails to properly operate and maintain below noted facilities, the Town, after giving reasonable notice for non-emergencies, may draw upon the account to cover the costs of proper operation and maintenance, including engineering and inspection costs. After which, the account shall be replenished by the applicant or facility owner within 90 days, or else the facility will be considered abandoned, and decommissioning shall be enacted.
(a)
Facilities for performance guarantees:
[1]
All proposed landscaping and screening for the project in the amount of 50% the installed cost.
[2]
Stormwater management and erosion and sediment control facilities required for the project in the amount of 50% the installed cost.
[3]
Any other facility as part of the proposed project, deemed necessary for inclusion to this section by the Planning Commission.
(3)
Decommissioning. The applicant shall execute a decommissioning agreement and financial surety as described in Subsection N of this section.
(4)
Indemnification. The applicant system shall execute an indemnification agreement with the Town. The agreement shall require the applicant/owner/operator to at all times defend, indemnify, protect, save, hold harmless and exempt the Town and its officers, councils, employees, attorneys, agents and consultants from any and all penalties, damages, costs or charges arising out of any and all claims, suits, demands, causes of action or award of damages whether compensatory or punitive, or expenses arising there from either at law or in equity, which might arise out of or be caused by the placement, construction, erection, modification, location, equipment's performance, use, operation, maintenance, repair, installation, replacement, removal or restoration of said U-BESS, excepting however any portion of such claims, suits, demands, causes of action or award of damages as may be attributable to the negligent or intentional acts or omissions of the Town or its employees or agents. With respect to the penalties, damages or changes referenced herein, reasonable attorneys' fees, consultant fees and expert witness fees are included in those costs that are recoverable by the Town.
(5)
Payment in-lieu of taxes. The applicant shall enter into an agreement for a payment in lieu of taxes (PILOT) with the Town Board pursuant to Real Property Tax Law Section 487. This PILOT agreement shall be reviewed and approved by the Town Board. A PILOT agreement executed with the county IDA, acceptable to the Town Board, in its sole discretion, for the U-BESS may serve to meet the requirements of this section.
(a)
No building permit shall be issued, or construction commenced for a U-BESS until such time as the PILOT agreement has been executed by all parties and recorded at the Office of the County Clerk.
(b)
The PILOT shall run to the benefit of the Town and School District and be executed by the operator and the owners of the real property upon which the U-BESS is to be located, and such signatures be notarized in such a way that allows the PILOT agreement to be recorded at the Office of the County Clerk. Prior to commencement of construction, the PILOT agreement shall be recorded at the Office of the County Clerk as a lien on the property and indexed against the property/properties upon which the U-BESS is to be constructed. The intent of this provision is so that should the operator of the U-BESS default with regard to the PILOT agreement, such obligation will become the responsibility of the then owner of the property upon which the U-BESS is sited and failure to satisfy the terms of such agreement will permit the Town to enforce such agreement against the owner.
N.
System operations and safety. The following applies to large-scale battery energy storage systems (L-BESS) and utility-scale battery storage systems (U-BESS), unless any of the requirements or conditions of this section or any subsection are waived or modified by the Planning Commission or noted otherwise herein.
(1)
Operation, safety and maintenance plan. The applicant shall submit a comprehensive operation, safety and maintenance plan that addresses the following:
(a)
Contains an executive summary sheet at the front of the document which clearly shows the following:
[1]
Facility owner information and contact, both phone and current email address.
[a]
Landowner information and contact, both phone and current email address.
[b]
An emergency contact phone number for a competent person who can be to the facility within one hour or less notice. The individual shall have access to the facility gates, knowledge of the site and be able to quickly identify electrical disconnect locations.
[c]
An emergency contact at the utility company associated with the L-BESS or U-BESS.
[d]
Contact information for the company or individual responsible for regular maintenance and landscaping of the site.
(b)
Describes continuing maintenance and upkeep for L-BESS or U-BESS, as well as design, construction, installation, testing and commissioning information and shall meet all requirements set forth in the Uniform Code and all applicable codes and the additional items below:
[1]
Procedure for how damaged or malfunctioning equipment shall be identified, isolated, removed, replaced, or repaired from the site within 30 days of discovery or notification of problem at the expense of the developer, ATIMA/ISAOA.
[2]
Description of internally located components for temperature monitoring, self-extinguishing fire system and off gassing monitoring. Method for how this equipment will be maintained, tested and inspected yearly or more frequently if required by the manufacturer.
[3]
System equipment, grounds, fencing and buffer areas shall be maintained in good condition by the operator.
[4]
Only DEC approved cleaning products applied by DEC approved applicators are allowed.
(c)
The applicant shall prepare an emergency operations plan in cooperation with Town emergency service providers, which will become part of the operation, safety and maintenance plan. A copy of the approved 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 start-up following cessation of emergency conditions.
[2]
Procedures for inspection and testing of associated alarms, interlocks, controls, temperature monitoring, self-extinguishing fire suppression system and off gassing monitoring.
[3]
Procedures to be followed in response to notifications from the L-BESS or U-BESS that, when provided, could signify potentially dangerous conditions, including shutting down equipment, summoning service, and repair personnel, and providing agreed upon notification to fire company personnel for potentially hazardous conditions in the event of a system failure. All means of shutting down the L-BESS or U-BESS shall be clearly marked.
[4]
The property must be inspected after a National Weather Service designation of a severe weather event to ensure that the property did not sustain damage. Reports of said inspection shall be filed with the Town Building Inspector.
[5]
Emergency procedures to be followed in case of fire, explosion, release of liquids, oils, or vapors, damage to critical moving parts, or other potentially dangerous conditions.
[6]
Response considerations similar to a material safety data sheet (MSDS) that will address response safety concerns and extinguishment when an MSDS is not required.
[7]
Procedures for dealing with L-BESS or U-BESS equipment damaged in a fire or other emergency event, including maintaining contact information for personnel qualified to safely remove damaged equipment from the facility. System owner shall provide guaranteed nonemergency and emergency response times of a qualified subject matter expert to the DPW and local emergency responders.
[8]
Other procedures as determined necessary by the Town to provide for the safety of occupants, neighboring properties, and emergency responders.
[9]
Procedure to the Town officials and emergency responders on how to inspect components that perform the temperature monitoring, self-extinguishing fire suppression system and off gassing monitoring.
[10]
Procedures and schedules for conducting drills of these procedures and for training local (all agencies within 15 miles) emergency responders on the contents of the plan and appropriate response procedures. Training shall be taught by a New York State certified instructor, performed annually, and shall include local and mutual aid emergency responders. Training and specialty equipment shall be paid for by the developer, ATIMA/ISAOA.
[11]
The system owner shall notify the local fire department, county emergency management office and the Town building inspector at least one week prior to any scheduled maintenance or equipment swap out.
[12]
In the event of a fire, all contaminated soil must be removed and disposed of properly, in accordance with all applicable laws. After 72 hours and every month for a minimum of 12 months after an emergency event the test wells on the site shall be tested for contaminants. If contaminants are detected testing will continue until the test results return back to predevelopment test well levels.
(2)
Consultation with Town emergency services. The applicant shall arrange an on-site meeting with the fire department having primary coverage of the project area and any other associated emergency service provider or Town department, to review the components of the system, safety issues and procedures for emergency response. This shall include details on the location of labeled warnings, access to the site, and emergency disconnection of the system. A draft version of the operation, safety and maintenance plan described above shall be made available to attendees of this meeting at least seven calendar days before. The applicant shall take feedback from attendees and amend the operation, safety and maintenance plan as needed.
(3)
Ownership changes. If the owner or operator of the L-BESS or U-BESS changes or the owner of the property changes, all requirements of the permit or special use permit shall remain in effect. Approval to operate the system shall continue, provided that the successor owner or operator assumes in writing all the obligations of the special use permit, site plan approval, decommissioning plan, security, escrow, and any other binding agreements. Both the new owner or operator of the L-BESS or U-BESS and the preceding owner shall notify the Code Enforcement Officer and the Town Supervisor of such change in ownership or operator 30 days prior to the ownership change. All the terms set forth herein shall be binding on developers, ATIMA/ISAOA.
(4)
Annual report/inspection. On a yearly basis, the L-BESS or U-BESS owner shall provide the Town reports showing the following information: rated capacity of the energy charges and discharge (kWh) totals provided to the grid or end user and a report of the inspection of the components that perform the temperature monitoring, self-extinguishing fire suppression system and off gassing monitoring. The reports shall be submitted no later than 30 days after the end of the calendar year. Additionally, an applicant/operator shall hire an independent, third-party engineer/inspector approved by the Town to oversee compliance with site and operational requirements and the ongoing obligation of the same for the lifetime of the project. The engineer/inspector shall perform a site inspection if a complaint regarding the U-BESS and any of its components is made to the Town of Rotterdam Code Enforcement Officer. Annual inspections of the completed U-BESS shall be performed at the expense of the developer, ATIMA, ISAOA.
(5)
Project changes. Any changes and/or augmentation to the U-BESS that occur after final approval from the Planning Commission, except for immaterial modifications as defined herein, shall be done by amendment to the special use permit only and shall be subject to the requirements of this section. Unless expressly limited by a condition imposed in the permit, the Code Enforcement Officer, or other Town designee may, during project construction, allow immaterial modifications to the design of the project as represented in the final set of site plans reviewed by the Planning Commission. Such immaterial modifications shall only be allowed in response to a written request by the applicant. All such requests shall be addressed to the authorized Town designee, with copies to the Chairman of the Planning Commission, and the TDE.
(6)
Insurance:
(a)
Unless modified or waived by the Planning Commission, the applicant or facility owner shall agree to secure and maintain for the duration of the project, public liability insurance as follows:
[1]
Commercial general liability covering personal injuries, death and property damage: $10,000,000 per occurrence, $20,000,000 aggregate, which shall specifically include the Town and its officers, councils, employees, attorneys, agents and consultants as additional named insured.
[2]
Umbrella coverage: $300,000,000.
(b)
Insurance company. The insurance policies shall be issued by an agent or representative of an insurance company licensed to do business in the state and with at least a Best's rating of "A".
(c)
Insurance policy cancellation. The insurance policies shall contain an endorsement obligating the insurance company to furnish the Town with at least 30 days prior written notice in advance of cancellation.
(d)
Insurance policy renewal. Renewal or replacement policies shall be delivered to the Town at least 15 days before the expiration of the insurance that such policies are to renew or replace.
(e)
Copies of insurance policy. No more than 15 days after the grant of the permit and before construction is initiated, the permit holder shall deliver to the Town a copy of each of the policies or certificates representing the insurance in the required amounts.
(f)
Certificate of insurance. A certificate of insurance that states it is for information purposes only and does not confer sufficient rights upon the Town shall not be deemed to comply with this section.
(g)
Construction inspection. The escrow account required herein shall be used to provide inspection by a Town engineering consultant during construction of the U-BESS. Work shall remain accessible and exposed until inspected and accepted by the town's consultant. After inspection, the work or a portion thereof shall be noted as satisfactory as completed, or the permit holder shall be notified as to how the work fails to comply with the Uniform Code or conditions of the special use permit. Work not in compliance shall remain exposed until brought into compliance, reinspected, and found satisfactory as completed. During construction, the Town Building Inspector/Code Enforcement Officer can issue a stop order at any time for violations of the special use permit.
(h)
Operational inspection. Upon 24 hours advance notice to the owner/operator or designated contact person, the Town of Rotterdam Code Enforcement Officer/Building Inspector or his or her designee may enter the U-BESS to verify compliance with any requirements or conditions. The U-BESS shall be inspected by a New York State licensed professional engineer, under contract with the Town and paid by the escrow account required herein, to ensure that it is operating according to the conditions of the special use permit. Such inspections shall be done annually, and at any other time, upon a determination by the Town's Building Inspector that damage may have occurred. The engineer shall file an inspection report with the Town Code Enforcement Officer/Building Inspector. All recommendations for maintenance and repair contained in said report shall be completed by the operator within a written schedule agreed on by the Code Enforcement Officer/Building Inspector.
(i)
Groundwater testing. For U-BESS, Unadulterated soil samples shall be taken at four corners of the proposed site. Testing shall utilize four-foot-deep holes, with testing at two-foot increments. One monitoring test well hole shall be at the lowest elevation on the site. In the event groundwater contamination occurs because of the U-BESS, the operator, at its sole expense, shall provide a reliable alternative water source and address the contamination in accordance with all legal requirements.
O.
Abandonment or decommissioning of systems. The following applies to utility-scale battery energy storage systems (U-BESS). Unless the requirements or conditions under this section or any following subsection are modified or waived by the Planning Commission, a proposed decommissioning agreement shall be provided by the applicant and approved by the Town Board. No building permit shall be issued for a U-BESS until the decommissioning agreement has been executed and financial surety provided as set forth below.
(1)
Cause to implement decommissioning plan.
(a)
If a U-BESS ceases to perform its originally intended function for more than 12 months or is considered abandoned by the Code Enforcement Officer for lack of maintenance and other provisions of this section, the Code Enforcement Officer shall notify the owner and/or operator of the facility to implement the decommissioning plan. Within 180 days of notice being served, the facility owner shall either restore operation or complete implementation of the decommissioning plan. If the owner and/or operator fails to fully implement the decommissioning plan within the 180-day time period and restore the site to original conditions as required, the Town may implement the decommissioning plan in accordance with the law, and recover all expenses incurred for such activities from the financial surety described in other sections of this section, and if required, from the defaulted facility owner.
(b)
If the applicant begins and does not complete construction within 18 months after receiving final site plan approval, the decommissioning plan may be implemented unless the facility owner can show to the satisfaction of the Code Enforcement Officer good cause as to why this time should be extended for a maximum of six months. At which time if the facility is not fully constructed and operating, the Code Enforcement Officer may implement the decommissioning plan in accordance with this section.
(2)
Decommissioning plan. The plan shall be submitted as part of the application to the Planning Commission. The decommissioning plan that ensures that the site will be restored to a useful, nonhazardous condition without delay, including but not limited to the following provisions:
(a)
The removal of the U-BESS within the from the facility area, including but not limited to all above and subsurface structures, electrical equipment, wires, footings, ground anchors, cables, utility poles, point of interconnection, concrete, switch gears, transformers, fencing, renewable energy electrical substations, inverters, roadways, stormwater management features, roadways, etc.
(b)
Compacted portions of the site shall be decompacted and excavations shall be backfilled to restore the site. Restoration of the original surface grade and topsoil installation after removal of the facility.
(c)
Revegetation of restored topsoil areas with native seed mixes, excluding any invasive species.
(d)
The cost of removing the entire U-BESS based upon prevailing wages and any other requirements applicable to municipalities under state or federal law.
(e)
No salvage value shall be attributed to any of the components of the U-BESS.
(f)
A schedule and methods for the removal of the U-BESS, including any ancillary structures.
(g)
A plan for restoring the property to its pre-installed condition, including grading and vegetative stabilization to eliminate any negative impacts to surrounding properties, and, where if it was previously used for farming, with vegetation suitable for farming purposes, i.e. a hay field, crops, or grazing.
(3)
Financial surety.
(a)
Financial surety shall be in an amount sufficient to ensure the good faith performance of the terms and conditions of the permit issued pursuant hereto and to provide for the removal of the U-BESS and restoration of the site subsequent to removal.
(b)
Prior to the issuance of a building permit and every five years thereafter, the U-BESS owner shall file with the Town evidence of financial security to provide for the full cost of decommissioning and removal of the U-BESS in the event the system is not removed by the system owner. Evidence of financial surety shall be in effect throughout the life of the system and shall be in the form of an irrevocable letter of credit or other security acceptable to the Town Board. The irrevocable letter of credit shall include an automatic extension provision, to be issued by an A-rated institution solely for the benefit of the Town, substantially in the form attached hereto as Exhibit A.
(c)
The amount of the financial surety shall be 150% of the estimated cost of removal of the U-BESS and restoration of the property, with an escalator of 2% annually (or Consumer Price Index change if more than the annual escalator of 2%) for the life of the utility-scale battery energy storage systems and shall not consider the net salvage value of any such project components. The financial surety established by the agreement shall not be subject to disclaimer or rejection in a bankruptcy proceeding. The amount of the surety shall be determined and certified by the applicant's engineer and shall be reviewed by the TDE. The amount of the surety may be adjusted by the Town during each five-year review as required.
(d)
In the event of default upon performance of such conditions, after proper notice and expiration of any cure periods, the security shall be forfeited to the Town, which shall be entitled to maintain an action thereon. The financial surety shall remain in full force and effect until 90 days after the restoration of the property, as set forth in the decommissioning plan, is completed.
(e)
Any cost incurred by the Town that exceeds funding available to them from financial surety, which cannot be recovered from the defaulted facility owner, shall be assessed against the property, in a manner appropriate by law, and in the form of tax, lien or other available method enforceable by the Town.
P.
Public use. A battery energy storage system shall not be considered a public utility use.