REGULAR MEETING

June 6, 2022

A regular meeting of the Town Board of the Town of Busti was held on Monday, June 6, 2022 at 6:45 p.m., at the Town of Busti, Town Administration Building, 125 Chautauqua Avenue, Lakewood, New York, with the following members present:

Supervisor Jesse M. Robbins

Councilman Jim Andrews

Councilman Doug Brown

Councilman Todd Hanson

Absent: Councilman Paul Gustafson

Supervisor Robbins called the meeting to order with the salute to the flag and a moment of silence was observed.

Present at the meeting in person: Attorney Joel Seachrist, LBPD Chief Chris DePonceau, Busti Fire Department Chief Matt Stafford, Nathan Rizzo – Solar Liberty, Jack Knowlton, Warren and Diane VanDewark, Mike Looker, Richard Frey, Gerald Leighton, Andy and Eriaca VanEvery, Sharon and Steve Kulig, and Jerry Leighton.

Michael Looker inquired what the standard government procedure was with gun control. He asked if the town had the authority to override Federal and/or State law. Attorney Seachrist stated he has not researched the subject, but his thought is the town does not have the authority to override either Federal or State gun control laws.

Town Clerk Darlene Nygren reported her office mailed the Transfer Station Sticker renewal letters on Friday, June 3^rd and began selling them today. Clerk Nygren noted she had reached out to NYSDOS Division of Cemeteries and spoke with the Assistant Director, Alisha Young. They discussed towns assisting private cemeteries that are in financial stress with tasks like mowing, maintaining the cemetery roads, trimming trees, etc. Ms. Young stated prior to 2010 towns were not permitted to assist a private cemetery however that changed in 2010 according to General Municipal Law 165A. The Town Board should pass a resolution approving the assistance. Clerk Nygren inquired about a representative meeting with the town and a cemetery to discuss what they can do. Ms. Young stated the town should reach out to their Buffalo office and request an investigator come and meet with the town and cemetery. Clerk Nygren reported the Bicentennial Committee will hold their first meeting on Wednesday, June 8^th; Ashley Beaver has agreed to serve on the committee. Clerk Nygren noted she received the Certificate of Satisfaction from the county for the 2022 County Town tax collection.

Supervisor Robbins moved the following resolution which was duly moved by Councilman Andrews:

RESOLVED, the Town of Busti Town Board authorizes and directs the Highway Superintendent to assist Sunset Cemetery with the cemetery the current pothole problem pending the adoption of a comprehensive resolution.

Upon roll call vote, all aye, carried.

Lakewood Busti Police Chief Chris DePonceau reported 1,013 incidents from May 2, 2022 to June 6, 2022 which included 254 area business checks, 20 check to well beings, 26 property checks, 18 shoplifting complaints, 241 vehicle stops, and 57 warrants served or applied. The department followed up on some speeding complaints on South Main Street and Forest Avenue; a patrol car has been monitoring traffic on Forest Avenue six times and issued eleven traffic violation tickets, there were three times they were monitoring that no traffic violations were observed; a patrol car monitored traffic six times on S. Main Street and issued one traffic violation ticket and five times they observed no violations. In addition, a patrol car monitored traffic on Winch Road three times and did not observe any violations; and monitored Garfield Road once and issued two tickets.

Busti Fire Department Chief Matt Stafford reported 51 calls for the month of May 2022: 34 EMS, 11 fire; and 6 service calls. The year to date for 2022 is 173 and was 161 last year at this time. Chief Stafford reported the Memorial Day Parade and Service was held after 2 years of not being able to have it. The “turnout gear” is in that was purchased from a grant awarded last year, a represented will be at the department to fit the gear to the department members.

Jack Knowlton reported Lakewood Fire Department had 113 calls in the month of May with a total of 438 incidents year to date. The new ambulance is in service and on the road. The old ambulance will be going to the county EMS department. The department’s boat is in the lake on a lift. The department just received their new gator with an EMS and Brush Fire slide in unit. The unit will be available to the police department for their use.

Supervisor Robbins noted it was 7:00 p.m. and moved to open the Public Hearing, regarding the adoption of Local Law 4 of 2022, “Local Law to Amend the Solar Energy Systems Law”. Motion was duly moved by Councilman Hanson.

All in favor, carried.

Proof of publication was placed on file.

No one present spoke on the proposed law.

Supervisor Robbins move to close the public hearing at 7:04 p.m. which was duly moved by Councilman Hanson.

All in favor, carried.

Attorney Seachrist requested to discuss the three items on his report in Executive Session.

Code Enforcement Officer Jeff Swanson was not present, and no report given.

Highway Superintendent Greg Johnson was not present due to attending the 2022 Highway School. Superintendent Johnson had emailed the board stating that at the 2022 Organizational Meeting the laborer pay was set as the same as NYS minimum wage rate which is currently $13.20 per hour. He is requesting the board consider increasing that rate for the two “summer help” employees as follows: Cody Vanguilder – $15 per hour and Trevor Delahoy – $17 per hour. Mr. Delahoy has a Class B license and his CDL that will benefit the Highway Department greatly especially since they are down one employee. Superintendent Johnson noted he had received a couple of applications for the open position but would like to leave the position open and hire someone well qualified for the position. Discussion followed.

Councilman Brown moved the following resolution which was duly moved by Councilman Andrews:

RESOLVED, the Town Board approve the following pay rates for the 2022 Summer Help Employees:

Cody Vanguilder – $15 per hour and Trevor Delahoy – $17 per hour. Both employees will be considered temporary full-time.

Upon roll call vote, all aye, carried.

Supervisor Robbins noted that Solitude Lake Management is scheduled to apply the herbicides to the lake in a week. They submitted an invoice for this year’s application in the amount of $34,751.60. The agreement was previously signed.

Supervisor Robbins moved the following resolution which was duly moved by Councilman Brown:

RESOLVED, the Town of Busti Town Board approved payment to Solitude Lake Management to perform ProcellaCOR treatment to 41 acres at Chautauqua Lake- Town of Busti on 6/14/22 in the amount of $34,751.60.

Upon roll call vote, all aye, carried.

Supervisor Robbins noted he and Councilman Hanson are scheduled to meet with Don McCord and the committee on June 29^th to discuss the draft of the proposed zoning code changes.

Councilman Hanson will contact Jamestown Heating and Air regarding the repair to the rooftop HVAC unit.

Supervisor Robbins noted the current 5G regulations were referred to the Planning Board for their review and suggestions. The Planning Board will meet on June 23^rd and will discuss the matter at that time.

Councilman Hanson noted he had sent the board information on Solar Simplified. They are requesting the Town of Busti approve for them to send letters out to town residents stating that all residents qualify to receive 10% off the cost of Community Solar. Councilman Hanson stated the letter should be from Solar Simplified not the Town of Busti.

Supervisor Robbins moved the following resolution which was duly moved by Councilman Andrews:

RESOLVED, the Town of Busti Town Board approve Solar Simplified sending a letter to town residents informing them of the eligibility to receive 10% off the cost of Community Solar with the understanding that the board review approve such letter prior to its mailing.

Upon roll call vote, all aye, carried.

Supervisor Robbins noted it was 7:15 p.m. and moved to open the Public Hearing, regarding the adoption of Local Law 3 of 2022, “Local Law to Amend the Battery Energy Storage Systems Law”. Motion was duly moved by Councilman Andrews.

All in favor, carried.

Proof of publication was placed on file.

No one present spoke on the proposed law.

Supervisor Robbins move to close the public hearing at 7:16 p.m. which was duly moved by Councilman Andrews.

All in favor, carried.

RESOLUTION

Moved by Councilman Hanson, seconded by Supervisor Robbins:

WHEREAS, the Town of Busti has proposed Local Law No. 3 of 2022, which would amend the Battery Energy Storage Systems Law, and

WHEREAS, the proposed law has been subject to environmental review pursuant to Article 8 of the New York State Environmental Conservation Law (State Environmental Quality Review Act), including the preparation and review of a long Environmental Assessment Form, and

WHEREAS, Part 617 of the implementing regulations pertaining to the State Environmental Quality Review Act requires this Board to determine and give notice of the environmental impact of the proposed local law, and

WHEREAS, the Board has determined that the proposed law will not have a significant environmental impact,

NOW, THEREFORE, BE IT RESOLVED, that the Town Board hereby issues a Notice of Determination of Non-Significance, also known as a Negative Declaration, for the proposed Local Law No. 3 of 2022 and authorizes the Supervisor to complete Part III of the EAF accordingly.

Upon roll call vote, all aye, carried.

Councilman Hanson noted the proposed law to amend the current Battery Energy Storage System law does not include the waiver relief like the Solar System law does. He would like to add the waiver to the proposed battery law.

Councilman Hanson moved the following resolution which was duly moved by Supervisor Robbins:

RESOLVED, the Town of Busti Town Board approve the following resolution with the addition of the waiver relief section J and move the enforcement section to K as discussed.

TOWN OF BUSTI

RESOLUTION TO ADOPT LOCAL LAW NO. 3 OF 2022

WHEREAS, a resolution was duly adopted by the Town Board of the Town of Busti for a public hearing to be held by said Board on June 6, 2022 at the Town Hall, 125 Chautauqua Avenue, Lakewood, New York, to hear all interested parties on a proposed Local Law to amend the Battery Energy Storage Systems law, and

WHEREAS, notice of said public hearing was duly published in the Jamestown Post-Journal and posted in the Town Clerk’s office, and

WHEREAS, said public hearing was duly held on June 6, 2022 at the said time and place and all parties in attendance in person and online were permitted an opportunity to speak on behalf of or in opposition to said proposed Local Law, or any part thereof, and

WHEREAS, the County Planning Department by letter dated June 3, 2022, sent in response to a referral made pursuant to Section 239-m of the General Municipal Law, has advised that the proposed Local Law is of local option, and

WHEREAS, the Board has determined that the adoption of the local law is a Type I action for purposes of the State Environmental Quality Review Act, has prepared an Environmental Assessment Form, and has duly adopted a Negative Declaration finding that the proposed Local Law will not have significant adverse environmental impacts, and

WHEREAS, the Town Board, after due deliberation, finds it in the best interests of the Town to adopt said Local Law,

NOW, THEREFORE, the Town Board of the Town of Busti hereby adopts said Local Law as Local Law No. 3 of 2022, a copy of which is attached hereto and made a part hereof, and the Town Clerk hereby is directed to enter said Local Law in the minutes of this meeting and in the Local Law Book of the Town of Busti, and to give due notice of the adoption of the Local Law to the Secretary of State.

Upon roll call vote, all aye, carried.

Town of Busti

Local Law No. 3 for the year 2022

A LOCAL LAW ENACTING REGULATIONS FOR battery energy storage systems

Be it enacted by the Town of Board of the Town of Busti, County of Chautauqua, and State of New York, as follows:

SECTION 1. AUTHORITY.

This local law is promulgated pursuant to the authority granted by:

Article IX of the New York State Constitution, §2(c)(10);

New York Statute of Local Governments, §10(1) and (7);

New York Municipal Home Rule Law, §10(1)(i) and (ii) and §10(1)(a), (11), (12), and (14);

New York Town Law §130 (11)(peace, good order and safety), (15)(promotion of public welfare); and

New York Town Law §64(17-a)(protection of aesthetic interests), (23)(general powers).

SECTION 2. BATTERY ENERGY STORAGE SYSTEMS LAW

A new Section 405-48.2 is hereby added to the Town of Busti Zoning Code, which shall provide as follows:

405-48.1 Battery Energy Storage Systems

Purpose. This Battery Energy Storage System Law is adopted to advance and protect the public health, safety, welfare, and quality of life of Town by creating regulations for the installation and use of battery energy storage systems, with the following objectives:

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

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

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

Definitions. For purposes of this sub-Section, the following terms shall have the meaning indicated:

ANSI: American National Standards Institute

BATTERY(IES): A single cell or a group of cells connected together electrically in series, in parallel, or a combination of both, which can charge, discharge, and store energy electrochemically. For the purposes of this law, batteries utilized in consumer products are excluded from these requirements.

BATTERY ENERGY STORAGE MANAGEMENT SYSTEM: An electronic system that protects energy storage systems from operating outside their safe operating parameters and disconnects electrical power to the energy storage system or places it in a safe condition if potentially hazardous temperatures or other conditions are detected.

BATTERY ENERGY STORAGE SYSTEM: One or more devices, assembled together, capable of storing energy in order to supply electrical energy at a future time, not to include a stand-alone 12-volt car battery or an electric motor vehicle. A battery energy storage system is classified as a Tier 1 or Tier 2 Battery Energy Storage System as follows:

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

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

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

COMMISSIONING: A systematic process that provides documented confirmation that a battery energy storage system functions according to the intended design criteria and complies with applicable code requirements.

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

(1) The building’s only use is battery energy storage, energy generation, and other electrical grid- related operations.

(2) No other occupancy types are permitted in the building.

(3) Occupants in the rooms and areas containing battery energy storage systems are limited to personnel that operate, maintain, service, test, and repair the battery energy storage system and other energy systems.

(4). Administrative and support personnel are permitted in areas within the buildings that do not contain battery energy storage system, provided the following:

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

(b) A means of egress is provided from the administrative and support use areas to the public way that does not require occupants to traverse through areas containing battery energy storage systems or other energy system equipment.

ENERGY CODE: The New York State Energy Conservation Construction Code adopted pursuant to Article 11 of the Energy Law, as currently in effect and as hereafter amended from time to time.

FIRE CODE: The fire code section of the New York State Uniform Fire Prevention and Building Code adopted pursuant to Article 18 of the Executive Law, as currently in effect and as hereafter amended from time to time.

NATIONALLY RECOGNIZED TESTING LABORATORY (NRTL): A U.S. Department of Labor designation recognizing a private sector organization to perform certification for certain products to ensure that they meet the requirements of both the construction and general industry OSHA electrical standards.

NEC: National Electric Code.

NFPA: National Fire Protection Association.

NON-DEDICATED-USE BUILDING: All buildings that contain a battery energy storage system and do not comply with the dedicated-use building requirements.

NON-PARTICIPATING PROPERTY: Any property that is not a participating property.

NON-PARTICIPATING RESIDENCE: Any residence located on non-participating property.

OCCUPIED COMMUNITY BUILDING: Any building in Occupancy Group A, B, E, I, R, as defined in the International Building Code, including but not limited to schools, colleges, daycare facilities, hospitals, correctional facilities, public libraries, theaters, stadiums, apartments, hotels, and houses of worship.

PARTICIPATING PROPERTY: A battery energy storage system host property or any real property that is the subject of an agreement that provides for the payment of monetary compensation to the landowner from the battery energy storage system owner (or affiliate) regardless of whether any part of a battery energy storage system is constructed on the property.

UNIFORM CODE: the New York State Uniform Fire Prevention and Building Code adopted pursuant to Article 18 of the Executive Law, as currently in effect and as hereafter amended from time to time.

Applicability.

(1) The requirements of this Section shall apply to all battery energy storage systems permitted, installed, or modified in the Town of Busti after the effective date of this Local Law, excluding general maintenance and repair.

(2) Battery energy storage systems constructed or installed prior to the effective date of this Local Law shall not be required to meet the requirements of this Local Law.

(3) Modifications to, retrofits or replacements of an existing battery energy storage system that increase the total battery energy storage system designed discharge duration or power rating shall be subject to this Section.

General Requirements.

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

(2) Issuance of permits and approvals by the Town Board shall include review pursuant to the State Environmental Quality Review Act.

(3) All battery energy storage systems, all Dedicated Use Buildings, and all other buildings or structures that (1) contain or are otherwise associated with a battery energy storage system and (2) subject to the Uniform Code and/or the Energy Code shall be designed, erected, and installed in accordance with all applicable provisions of the Uniform Code, all applicable provisions of the Energy Code, and all applicable provisions of the codes, regulations, and industry standards as referenced in the Uniform Code, the Energy Code, and the Town Code.

Permitting For Tier 1 Battery Energy Storage Systems. Tier 1 Battery Energy Storage Systems shall be permitted in all zoning districts, subject to the Uniform Code and the “Battery Energy Storage System Permit,” and exempt from site plan review.

Permitting For Tier 2 Battery Energy Storage Systems. Tier 2 Battery Energy Storage Systems are permitted through the issuance of a special use permit within the Industrial (I), Conservation-Agricultural (C-A), and CAMP Districts, and shall be subject to the Uniform Code and the site plan application requirements set forth in this Section.

(1) Applications for the installation of Tier 2 Battery Energy Storage System shall be:

(a) Reviewed by the Town Board for completeness. An application shall be complete when it addresses all matters listed in this Local Law including, but not necessarily limited to, (a) compliance with all applicable provisions of the Uniform Code and all applicable provisions of the Energy Code and (b) matters relating to the proposed battery energy storage system and Floodplain, Utility Lines and Electrical Circuitry, Signage, Lighting, Vegetation and Tree- cutting, Noise, Decommissioning, Site Plan and Development, Special Use and Development, ownership Changes, Safety, and Permit Time Frame and Abandonment. Applicants shall be advised within 20 business days of the completeness of their application or any deficiencies that must be addressed prior to substantive review.

(b) Referred to the Town Planning Board for a report and recommendation

(c) Subject to a public hearing to hear all comments for and against the application. The Town Board shall have a notice printed in a newspaper of general circulation in the Town at least 5 days in advance of such hearing. Applicants shall have delivered the notice by first class mail to adjoining landowners or landowners within 1,000 feet of the property at least 10 days prior to such hearing. Proof of mailing shall be provided to the Town Board at the public hearing.

(d) Referred to the County Planning Department pursuant to General Municipal Law § 239-m if required.

(e) Upon closing of the public hearing, the Town Board shall take action on the application within 62 days of the public hearing, which can include approval, approval with conditions, or denial. The 62-day period may be extended upon consent by both the Town Board and the Applicant.

(2). Utility Lines and Electrical Circuitry. All on-site utility lines shall be placed underground to the extent feasible and as permitted by the serving utility, with the exception of the main service connection at the utility company right-of-way and any new interconnection equipment, including without limitation any poles, with new easements and right-of-way.

(3) Signage.

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

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

(4) Lighting. Lighting of the battery energy storage systems shall be limited to that minimally required for safety and operational purposes and shall be reasonably shielded and downcast from abutting properties.

(5) Vegetation and Tree-cutting. Areas within 20 feet on each side of Tier 2 Battery Energy Storage Systems shall be cleared of combustible vegetation and other combustible growth. Single specimens of trees, shrubbery, or cultivated ground cover such as green grass, ivy, succulents, or similar plants used as ground covers shall be permitted to be exempt provided that they do not form a means of readily transmitting fire. Removal of trees should be minimized to the extent possible.

(6). Noise. The 1-hour average noise generated from the battery energy storage systems, components, and associated ancillary equipment shall not exceed a noise level of 50 dBA as measured at the outside wall of any non-participating residence or occupied community building. Applicants may submit equipment and component manufacturers noise ratings to demonstrate compliance. The applicant may be required to provide Operating Sound Pressure Level measurements from a reasonable number of sampled locations at the perimeter of the battery energy storage system to demonstrate compliance with this standard.

(7) Decommissioning.

(a) Decommissioning Plan. The applicant shall submit a decommissioning plan, developed in accordance with the Uniform Code, to be implemented upon abandonment and/or in conjunction with removal from the facility. The decommissioning plan shall include:

A narrative description of the activities to be accomplished, including who will perform that activity and at what point in time, for complete physical removal of all battery energy storage system components, structures, equipment, security barriers, and transmission lines from the site;

Disposal of all solid and hazardous waste in accordance with local, state, and federal waste disposal regulations;

The anticipated life of the battery energy storage system;

The estimated decommissioning costs and how said estimate was determined;

The method of ensuring that funds will be available for decommissioning and restoration;

The method by which the decommissioning cost will be kept current;

The manner in which the site will be restored, including a description of how any changes to the surrounding areas and other systems adjacent to the battery energy storage system, such as, but not limited to, structural elements, building penetrations, means of egress, and required fire detection suppression systems, will be protected during decommissioning and confirmed as being acceptable after the system is removed; and

A listing of any contingencies for removing an intact operational energy storage system from service, and for removing an energy storage system from service that has been damaged by a fire or other event.

(b) Decommissioning Fund. The owner and/or operator of the energy storage system, shall continuously maintain a fund or bond payable to the Town, in a form approved by the Town for the removal of the battery energy storage system, in an amount to be determined by the Town, for the period of the life of the facility. This fund may consist of a letter of credit from a State of New York licensed-financial institution. All costs of the financial security shall be borne by the applicant.

(8) Site plan application. For a Tier 2 Battery Energy Storage System requiring a Special Use Permit, site plan approval shall be required. Any site plan application shall include the following information:

(a) Property lines and physical features, including roads, for the project site.

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

(c) A three-line electrical diagram detailing the battery energy storage system layout, associated components, and electrical interconnection methods, with all National Electrical Code compliant disconnects and over current devices.

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

(e) Name, address, and contact information of proposed or potential system installer and the owner and/or operator of the battery energy storage system. Such information of the final system installer shall be submitted prior to the issuance of building permit.

(f) Name, address, phone number, and signature of the project Applicant, as well as all the property owners, demonstrating their consent to the application and the use of the property for the battery energy storage system.

(g) Zoning district designation for the parcel(s) of land comprising the project site.

(h) Commissioning Plan. Such plan shall document and verify that the system and its associated controls and safety systems are in proper working condition per requirements set forth in the Uniform Code. Where commissioning is required by the Uniform Code, Battery energy storage system commissioning shall be conducted by a New York State (NYS) Licensed Professional Engineer after the installation is complete but prior to final inspection and approval. A corrective action plan shall be developed for any open or continuing issues that are allowed to be continued after commissioning. A report describing the results of the system commissioning and including the results of the initial acceptance testing required in the Uniform Code shall be provided to the Town’s Code Enforcement Officer prior to final inspection and approval and maintained at an approved on-site location.

(i) Fire Safety Compliance Plan. Such plan shall document and verify that the system and its associated controls and safety systems are in compliance with the Uniform Code.

(j) Operation and Maintenance Manual. Such plan shall describe continuing battery energy storage system maintenance and property upkeep, as well as design, construction, installation, testing and commissioning information and shall meet all requirements set forth in the Uniform Code.

(k) Erosion and sediment control and storm water management plans prepared to New York State Department of Environmental Conservation standards, if applicable, and to such standards as may be established by the Planning Board.

(l) Prior to the issuance of the building permit or final approval by the Town Board, but not required as part of the application, engineering documents must be signed and sealed by a NYS Licensed Professional Engineer.

(m) Emergency Operations Plan. A copy of the approved Emergency Operations Plan shall be given to the system owner, the local fire department, and local fire code official. A permanent copy shall also be placed in an approved location to be accessible to facility personnel, fire code officials, and emergency responders. The emergency operations plan shall include the following information:

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.

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

Procedures to be followed in response to notifications from the Battery Energy Storage Management System, when provided, that could signify potentially dangerous conditions, including shutting down equipment, summoning service and repair personnel, and providing agreed upon notification to fire department personnel for potentially hazardous conditions in the event of a system failure.

Emergency procedures to be followed in case of fire, explosion, release of liquids or vapors, damage to critical moving parts, or other potentially dangerous conditions. Procedures can include sounding the alarm, notifying the fire department, evacuating personnel, de- energizing equipment, and controlling and extinguishing the fire.

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

Procedures for dealing with battery energy storage system equipment damaged in a fire or other emergency event, including maintaining contact information for personnel qualified to safely remove damaged battery energy storage system equipment from the facility.

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

8 Procedures and schedules for conducting drills of these procedures and for training local first responders on the contents of the plan and appropriate response procedures.

(9). Special Use Permit Standards.

(a) Setbacks. Tier 2 Battery Energy Storage Systems shall be set back a minimum of 300 feet from any property line and a minimum of 500 feet from any residential building, school, place of public worship or designated historic district or landmark, and a minimum of 500 feet from any property within the Residential (R) District. If the applicant controls multiple, contiguous parcels, only the exterior boundary of the aggregated parcels shall be considered the “property line” for purposes of determining setbacks.

The Town Board may consider requests to reduce these setback distances by up to 50% where the Battery Energy Storage System and/or Dedicated-Use Building are designed to have the aesthetic appearance of a building that would be typical in the Town of Busti, as opposed to an undisguised box or trailer-like appearance.

(b) Height. Tier 2 Battery Energy Storage Systems shall comply with the building height limitations for principal structures of the underlying zoning district, but in no case shall exceed 30 feet.

(c) Fencing Requirements. Tier 2 Battery Energy Storage Systems, including all mechanical equipment, shall be enclosed by a fence at least 7 feet in height with a self-locking gate to prevent unauthorized access unless housed in a dedicated-use building and not interfering with ventilation or exhaust ports.

(d) Screening and Visibility. Tier 2 Battery Energy Storage Systems shall have views minimized from adjacent properties to the extent reasonably practicable using architectural features, earth berms, landscaping, or other screening methods that will harmonize with the character of the property and surrounding area and not interfering with ventilation or exhaust ports.

(10) Ownership Changes. If the owner of the battery energy storage system changes or the owner of the property changes, the special use permit shall remain in effect, provided that the successor owner or operator assumes in writing all of the obligations of the special use permit, site plan approval, and decommissioning plan. A new owner or operator of the battery energy storage system shall notify the Code Enforcement Officer of such change in ownership or operator within 30 days of the ownership change. A new owner or operator must provide such notification to the Code Enforcement Officer in writing. The special use permit and all other local approvals for the battery energy storage system would be void if a new owner or operator fails to provide written notification to the Code Enforcement Officer in the required timeframe. Reinstatement of a void special use permit will be subject to the same review and approval processes for new applications under this Local Law.

Safety.

(1). System Certification. Battery energy storage systems and equipment shall be listed by a Nationally Recognized Testing Laboratory to UL 9540 (Standard for battery energy storage systems and Equipment) or approved equivalent, with subcomponents meeting each of the following standards as applicable:

(a) UL 1973 (Standard for Batteries for Use in Stationary, Vehicle Auxiliary Power and Light Electric Rail Applications),

(b) UL 1642 (Standard for Lithium Batteries),

(d) Certified under the applicable electrical, building, and fire prevention codes as required.

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

(2) Site Access. Battery energy storage systems shall be maintained in good working order and in accordance with industry standards. Site access shall be maintained, including snow removal at a level acceptable to the local fire department and, if the Tier 2 Battery Energy Storage System is located in an ambulance district, the local ambulance corps.

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

Permit Time Frame and Abandonment.

(1) The Special Use Permit and site plan approval for a battery energy storage system shall be valid for a period of 12 months, provided that a building permit is issued for construction and construction is commenced. If construction is not completed in accordance with the final site plan, as may have been amended and approved, as required by the Town Board, within 24 months after approval, the Town may extend the time to complete construction for 180 days. If the owner and/or operator fails to perform substantial construction after 30 months, the approvals shall expire.

(2) The battery energy storage system shall be considered abandoned when it ceases to operate consistently for more than one year. If the owner and/or operator fails to comply with decommissioning upon any abandonment, the Town may, at its discretion, enter the property and utilize the available bond and/or security for the removal of a Tier 2 Battery Energy Storage System and restoration of the site in accordance with the decommissioning plan.

Reimbursement of Fees and Expenses.

(1) An Applicant shall reimburse the Town for any fee or expense incurred in hiring subject matter experts and attorneys to review whether a Battery Energy System proposed for siting pursuant to Article 10 of the New York Public Service Law or Article 94-c of the Executive Law complies with the substantive provision of this local law.

(2) The applicable fees for any review or permit required by this local law shall be set from time to time by resolution of the Town Board.

(3) An Applicant for either state or local siting approval shall deliver to the Town Board, along with its application, if local approval is sought, or one-hundred eighty (180) days prior to the filing of an Article 10 or Article 94- C application, if applicable, an amount equal to one percent (1%) of the estimated cost of the project (the “Initial Deposit”). This sum shall be held by the Town in a non- interest-bearing account and shall be available to the Town to pay consultants and attorneys engaged by the Town to assist in its review of and preparation for an Article 10 or Article 94-c application. Should the Town be awarded intervenor funds, it shall switch to and deplete those funds before making further use of the Initial Deposit. Following the approval or denial of the state or local application, the Town shall return to the Applicant any excess funds remaining in escrow. If the escrow account has been depleted prior to approval or denial of the application, the Applicant shall deposit such funds necessary for the Town to pay any outstanding consulting fees.

(4) If the proposed Battery Energy Storage System is related to and part of a proposed Solar Energy System or Wind Energy System, then the Town may hold a single escrow account for both projects.

Enforcement. Any violation of this Battery Energy Storage System Law shall be subject to the same enforcement requirements, including the civil and criminal penalties, provided for in the zoning or land use regulations of Town.

Section 3. SEVERABILITY.

Should any provision of this Local Law be declared by the courts to be unconstitutional or invalid, such decision shall not affect the validity of this Local Law as a whole or any part thereof other than the part so decided to be unconstitutional or invalid.

Section 4. EFFECTIVE DATE.

This Local Law shall be effective upon its filing with the Secretary of State in accordance with the Municipal Home Rule Law.

RESOLUTION

Moved by Councilman Hanson, seconded by Supervisor Robbins:

WHEREAS, the Town of Busti has proposed Local Law No. 4 of 2022, which would amend the Town’s Solar Energy Systems Law, and

WHEREAS, the Board has determined that the proposed law will not have a significant environmental impact,

NOW, THEREFORE, BE IT RESOLVED, that the Town Board hereby issues a Notice of Determination of Non-Significance, also known as a Negative Declaration, for the proposed Local Law No. 4 of 2022 and authorizes the Supervisor to complete Part III of the EAF accordingly.

Upon roll call vote, all aye, carried.

TOWN OF BUSTI

RESOLUTION TO ADOPT LOCAL LAW NO. 4 OF 2022

WHEREAS, notice of said public hearing was duly published in the Jamestown Post-Journal and posted in the Town Clerk’s office, and

WHEREAS, the Town Board, after due deliberation, finds it in the best interests of the Town to adopt said Local Law,

NOW, THEREFORE, the Town Board of the Town of Busti hereby adopts said Local Law as Local Law No. 4 of 2022, a copy of which is attached hereto and made a part hereof, and the Town Clerk hereby is directed to enter said Local Law in the minutes of this meeting and in the Local Law Book of the Town of Busti, and to give due notice of the adoption of the Local Law to the Secretary of State.

Upon roll call vote, all aye, carried.

TOWN OF BUSTI

LOCAL LAW NO. 4 OF 2022

AMENDING SECTION 405-48.1 OF THE TOWN OF BUSTI ZONING CODE REGARDING SOLAR ENERGY SYSTEMS

Be it enacted by the Town Board of the Town of Busti as follows:

SECTION 1. AUTHORITY

This local law is adopted pursuant to the authority of Municipal Home Rule Law of the State of New York and Sections 261-263 of the Town Law of the State of New York, which authorize the Town to adopt zoning provisions that advance and protect the health, safety, and welfare of the community, and, in accordance with the Town Law of New York State, “to make provision for, so far as conditions may permit, the accommodation of solar energy systems and equipment and access to sunlight necessary therefore.”

SECTION II. SOLAR ENERGY SYSTEM REGULATIONS

The current Section 405-48.1 of the Town of Busti Zoning Code is hereby repealed and replaced in its entirety with the following:

Solar Energy Systems.

(1) Purpose. This Solar Energy Local Law is adopted to advance and protect the public health, safety, and welfare of the Town by creating regulations for the installation and use of solar energy generating systems and equipment, with the following objectives and intent:

(a) To take advantage of a safe, abundant, renewable and non-polluting energy resource;

(b) To decrease the cost of electricity to the owners of residential and commercial properties, including single-family houses;

(c) To invest in a locally generated source of energy to increase employment and business development in the Town of Busti to the extent reasonably practical by furthering the installation of solar energy systems;

(d) To provide other benefits to the Town and its residents to mitigate impacts from the solar project;

(e) To mitigate the impacts of Solar Energy Systems on environmental resources such as important agricultural lands, forests, wildlife and other protected resources. The use of small-scale, on- farm sources alternative to energy generation is beneficial to local farmers allowing them the ability to cut utility costs and/or supplement their income;

(f) To protect adjoining/surrounding property owners by mitigating the potential impacts from large scale solar installations;

(g) To aid in the energy independence of the community as well as the country;

(h) To create zoning regulations in accordance with the Town’s Comprehensive Plan and other regional planning documents.

(2) Definitions. As used in this Section, the following terms shall have the meaning indicated:

BUILDING-INTEGRATED SOLAR ENERGY SYSTEM: A combination of Solar Panels and Solar Energy Equipment integrated into any building envelope system such as vertical facades, semitransparent skylight systems, roofing materials, or shading over windows, which produce electricity for onsite consumption.

DWELLING UNIT: Any residence/house/apartment that may be occupied or vacant

FARMLAND OF STATEWIDE IMPORTANCE – Land, designated as “Farmland of Statewide Importance” in the U.S. Department of Agriculture Natural Resources Conservation Service’s (NRCS) Soil Survey Geographic (SSURGO) Database on Web Soil Survey that is of state-wide importance for the production of food, feed, fiber, forage, and oilseed crops as determined by the appropriate state agency or agencies. Farmland of Statewide Importance may include tracts of land that have been designated for agriculture by state law.

GLARE – The effect by reflections of light with intensity sufficient as determined in a commercially reasonable manner to cause annoyance, discomfort, or loss in visual performance and visibility in any material respects.

GROUND-MOUNTED SOLAR ENERGY SYSTEM – A Solar Energy System that is anchored to the ground via a pole or other mounting system, detached from any other structure that generates electricity for onsite or offsite consumption.

HOST COMMUNITY AGREEMENT – A contract between a developer and a local governing body, whereby the developer agrees to provide the community with certain benefits and mitigate specified impacts of the solar project.

NATIVE PERENNIAL VEGETATION – Native wildflowers, forbs, and grasses that serve as habitat, forage, and migratory way stations for pollinators and shall not include any prohibited or regulated invasive species as determined by the New York State Department of Environmental Conservation.

NON-PARTICIPATING PROPERTY – A property that is not affiliated with a Solar Energy System project in any contractual manner.

PARCEL(S) – A tract of land owned by an individual or entity leased or otherwise controlled by an applicant upon which a Solar Energy System is proposed to be constructed.

PARTICIPATING PROPERTY – A property that is being leased for solar usage, or a property that has an agreement or lease but is not having solar related improvements constructed upon it.

POLLINATOR – Bees, birds, bats, and other insects or wildlife that pollinate flowering plants, and includes both wild and managed insects.

PRIME FARMLAND – Land, designated as “Prime Farmland” or “Prime Farmland where drained” in the U.S. Department of Agriculture Natural Resources Conservation Service (NRCS)’s Soil Survey Geographic (SSURGO) Database on Web Soil Survey, 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 land uses.

ROOF-MOUNTED SOLAR ENERGY SYSTEM – A Solar Energy System located on the roof of any legally permitted building or structure that produces electricity for onsite or offsite consumption.

SOLAR ACCESS – Space open to the sun and clear of overhangs or shade so as to permit the use of active and/or passive Solar Energy Systems on individual properties.

SOLAR ENERGY EQUIPMENT – Electrical material, hardware, inverters, conduit, storage devices, or other electrical and photovoltaic equipment associated with the production of electricity.

SOLAR ENERGY SYSTEM – The components and subsystems required to convert solar energy into electric energy suitable for use. The term includes, but is not limited to, Solar Panels and Solar Energy Equipment. A Solar Energy System in the Town of Busti is classified as a Tier 1, Tier 2, Tier 3 or Tier 4 Solar Energy System as follows.

Tier 1 Solar Energy Systems include the following:

Roof-Mounted Solar Energy Systems
Building-Integrated Solar Energy Systems

Tier 2 Solar Energy Systems include Ground-Mounted Solar Energy Systems less than 4,000 square feet in size (defined as the actual square footage of panels) and that generate no more than 110% of the electricity consumed on the site over the previous 12 months.

Tier 3 Solar Energy Systems are systems that do not meet the definition of a Tier 1 or Tier 2 Solar Energy Systems and do not meet the requirements of a Tier 4 Solar Energy System.

Tier 4 Solar Energy Systems meet the definition of a Tier 3 Solar Energy System but are over 25 acres in size (defined as the fenced in area that encloses the panels and other related solar energy equipment).

SOLAR PANEL – A photovoltaic device capable of collecting and converting solar energy into electricity.

STORAGE BATTERY – A device that stores energy and makes it available in an electrical form

WETLANDS – Any areas designated as such by the NYS Department of Environmental Conservation or the US Army Corps of Engineers

(3). Applicability.

(a) The requirements of this Section shall apply to all Solar Energy Systems permitted, installed, or modified in the Town after the effective date of this Section, excluding general maintenance and repair.

(b). Modifications to an existing Solar Energy System that increase the Solar Energy System area by more than 5% of the original area of the Solar Energy System (exclusive of moving any fencing) shall be subject to this Section.

(c) All Solar Energy 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 (“Energy Code”), and the Town Code.

(d) All applicable substantive standards set forth herein are intended to apply to projects sited by the State Siting Board, the Office of Renewable Energy Siting, or any other government body of competent jurisdiction to provide siting approval for power plants within the Town of Busti.

(4) General Requirements.

A building permit shall be required for installation of all Solar Energy Systems.

It is the applicant/developer’s responsibility to ensure solar skyspace/access

(c) Issuance of permits and approvals by the Town Board and Planning Board shall include review pursuant to the State Environmental Quality Review Act ECL Article 8 and its implementing regulations at 6 NYCRR Part 617 (“SEQRA”), when applicable.

(d) All permitted Solar Energy Systems shall be installed by a qualified solar installer.

(e) This section shall not apply to any lot owned by a municipality.

(f) This Article shall take precedence over any inconsistent provision of the Zoning Law of the Town.

(5) Permitting Requirement for Tier 1 Solar Energy Systems. Tier 1 Solar Energy Systems shall be permitted in all zoning districts by right, subject to the following conditions:

(a). Roof-Mounted Solar Energy Systems.

Roof-Mounted Solar Energy Systems shall incorporate, when feasible, the following design requirements:

Solar Panels on pitched roofs shall be mounted with a maximum distance of 8 inches between the roof surface and the highest edge of the system.

Solar Panels on pitched roofs shall be installed parallel to the roof surface on which they are mounted or attached.

Height: Tier 1 Solar Energy Systems shall have the following height restrictions for all zoning districts: 2 feet above roof of highest existing structure, but shall not be higher than the allowed height in the underlying zoning district, unless a variance is received.

Solar Panels on flat roofs shall not extend above the top of the surrounding parapet, or more than 24 inches above the flat surface of the roof, whichever is higher.

Glare: All Solar Panels shall have anti-reflective coating(s) and proof of such must be provided with the building permit application. These coatings shall not contain any hazardous substances and documentation of such must be provided to the Town.

Fire safety: All Roof mounted systems shall be designed and installed in accordance with the Uniform Fire Prevention and Building Code Standards.

Roof Access Points. Roof access points shall be located:

In areas that establish access pathways which are independent of each other and as remote from each other as practicable so as to provide escape routes from all points along the roof.

In areas that do not require the placement of ground ladders over openings such as windows or doors or areas that may cause congestion or create other hazards.

At strong points of building construction, such as corners, pilasters, hips, and valleys and other areas capable of supporting the live load from emergency responders.

Where the roof access point does not conflict with overhead obstructions such as tree limbs, wires or signs.

Where the roof access point does not conflict with ground obstructions such as decks, fences or landscaping.

In areas that minimize roof tripping hazards such as vents, skylights, satellite dishes, antennas, or conduit runs.

Ground access areas. Ground access areas shall be located directly beneath access roofs and roof access points. The minimum width of the ground access area shall be the full width of the access roof or roof access point, measured at the eave. The minimum depth shall allow for the safe placement of ground ladders for gaining entry to the access roof.

Notification to the Fire Service. Notification in writing to the Fire Department having operational authority at the location where the system will be installed shall be made no later than ten (10) days following installation:

Notification shall include a site map showing the location of the solar energy electrical panel, as well as the proper operation of the disconnect switch(s) in the event of a fire or other emergency situation where the homeowner, tenant or other personnel is not available or familiar with the safe shut down operation of unit so as to have the ability to cut power from the solar panels.

In addition, a proper written statement showing the method of shut down shall be posted inside the main electrical panel of the unit which can be readily accessible for and to firefighting personnel.

(b) Building-Integrated Solar Energy Systems. Building-Integrated Solar Energy Systems shall be shown on the plans submitted for the building permit application for the building containing the system.

(6) Permitting Requirements for Tier 2 Solar Energy Systems. Tier 2 Solar Energy Systems shall be permitted in all zoning districts as an accessory use and require a site plan review in accordance with the Town of Busti Zoning Code and other Town land use regulations. The site plan review application shall include a site plan and address the following requirements:

(a) Glare: All Solar Panels shall have anti-reflective coating(s) which do not contain any hazardous substances and proof of such must be provided with the building permit application.

(b) Setbacks: Tier 2 Solar Energy Systems shall be set back a minimum of 50 feet from any side or rear property line. All Ground-Mounted Solar Energy Systems shall only be installed in the side or rear yards. In all cases, the solar panels shall be located a minimum of 75 feet from any dwelling unit on an adjoining non-participating property.

(d) Screening and Visibility.

All Tier 2 Solar Energy Systems shall have views minimized from adjacent properties to the extent reasonably practicable.

Solar Energy Equipment shall be located in a manner to reasonably avoid and/or minimize blockage of views from surrounding properties and shading of property to the north, while still providing adequate solar access.

(7) Permitting Requirements for Tier 3 Solar Energy Systems. Tier 3 Solar Energy Systems are permitted through the issuance of a special use permit within the Industrial (I), Conservation- Agricultural (C-A), and CAMP Districts, subject to site plan review application requirements set forth in this Section. In order to ensure that the benefits of the community solar energy resource are available to the entire community, the Town of Busti requires the applicant to enter into a Solar Energy System PILOT and Host Community Agreement with the Town of Busti.

(a) The application process for the installation of Tier 3 Solar Energy System shall be:

Application received by the Code Enforcement Officer (CEO) and checked to make sure the appropriate documents have been submitted. The CEO will then refer the application to the Town Board, which will forward it to the Planning Board for it to make a final determination as to completeness of the application. Applicants shall be advised within 10 business days of the first Planning Board meeting about the completeness of their application or any deficiencies that must be addressed prior to substantive review of the Special Use Permit and Site Plan.

Once the application is deemed complete and while the Planning Board is completing its reviews, the project/application shall be referred to the Town Board to begin completion of the Host Community Agreement. This agreement will need to be finalized before the Town Board acts on the Special Use Permit.

Subject to a public hearing by the Town Board to hear all comments for and against the application. The Town shall complete all public notice requirements in accordance with the Special Use requirements of the Town.

Referred to the Chautauqua County Planning Department by the Town Board pursuant to General Municipal Law §239-m if required.

Acted upon by the Planning Board to complete site plan review and make a report and recommendation to the Town Board.

Acted upon by the Town Board to complete the SEQR process and determine whether a special use permit should be issued

(b) Design and Application Requirements. Applications for Tier 3 Solar projects shall address and include the following:

Vehicular Paths. Vehicular paths within the site shall be designed to minimize the extent of impervious materials and soil compaction. These access roads shall be designed as “limited use pervious access” roads in accordance with NYSDEC standards and designed to handle appropriate loads (emergency equipment) and meet the requirements of the Town’s Emergency Service Providers.

Signage.

No signage or graphic content shall be displayed on the Solar Energy Systems except the manufacturer’s name, equipment specification information, safety information, and 24-hour emergency contact information. Said information shall be depicted within an area no more than 8 square feet.

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

Glare. All Solar Panels shall have anti-reflective coating(s) and proof of such submitted at time of application and at the time of the Building Permit.

Lighting. Lighting of the Solar Energy Systems shall be limited to that minimally required for safety and operational purposes and shall be reasonably shielded and downcast (dark sky compliant) from abutting properties.

Noise. Information on any noise producing equipment (as determined by the Town based on application materials) shall be submitted. If necessary, the Planning Board will require analysis of the noise on any sensitive receptors, including single family homes.

Tree-cutting. Location of solar energy systems in wooded areas should be avoided. Removal of existing trees larger than 6 inches in diameter should be minimized. No more than 10% of a project or leased area shall be cleared of existing trees, excluding brush clearing. Plans submitted should clearly indicate tree locations and those to be removed (clearing limit).

Decommissioning.

Solar Energy Systems that have been abandoned and/or not producing electricity (defined as operated at a minimum of 50% capacity for a period of at least 6 months) for a period of 1 year shall be removed at the Owner and/or Operator’s expense, which at the Owner’s option may come from any security made with the Town as set forth in this law.

A decommissioning plan signed by the owner and/or operator of the Solar Energy System shall be submitted by the applicant, addressing the

following:

The cost of removing the Solar Energy System (with no allowance for the recycling or salvage value). These costs should reflect the costs of a government entity to remove the system.

The time required to decommission and remove the Solar System and any ancillary structures.

The time required to repair any damage caused to the property by the installation and removal of the Solar Energy System.

If Agricultural lands, decommissioning may need to be in accordance the NYSDAM requirements.

All calculations shall be verified by the engineer employed by the Town.

Security.

The deposit, executions, or filing with the Town Clerk of cash, bond, or other form of security reasonably acceptable to the Town Attorney and/or engineer and approved by the Town Board, 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 and restorations of the site subsequent to removal. The amount of the bond or security shall be 125 % of the cost of removal of the Tier 3 Solar Energy System and restoration of the property with an escalator of 2 % annually for the life of the Solar Energy System (or the estimate will need to be updated on a prescribed basis). The decommissioning amount shall not be reduced by the amount of the estimated salvage value of the Solar Energy System.

In the event of default upon performance of such conditions, after proper notice and expiration of any cure periods, the cash deposit, bond, or security shall be forfeited to the Town, which shall be entitled to maintain an action thereon. The cash deposit, bond, or security shall remain in full force and effect until restoration of the property as set forth in the decommissioning plan is completed.

In the event of default or abandonment of the Solar Energy System, the system shall be decommissioned as set forth in this law.

Application Fees: All applications for Tier 3 solar energy systems shall include the appropriate fees as set by the Busti Town Board. The Applicant shall reimburse the Town for all legal and expert/engineering costs required to review applications, whether made to the Town of Busti, the Office of Renewable Energy Siting (“ORES”), or the Board on Electric Generation Siting and the Environment (the “Siting Board”).

Maintenance Plan: Applications shall include a maintenance plan for all leased lands (including required setbacks/buffers). Noxious weeds shall not be tolerated. Monthly mowing shall occur at least in the months of May, June, July, August, and September. Monthly debris removal from the fence line is required.

Safety; applications shall include a safety plan (including communication with emergency service providers).

Environmental and cultural resources; information on the environmental and cultural resources (as identified through the NYSDEC Mapping system and by the Town of Busti) on the subject property and surrounding properties.

A property owner who has installed, or intends to install, a solar energy system may choose to negotiate with other property owners in the vicinity for any necessary solar skyspace easements. The issuance of a special use permit by the Town does not constitute solar skyspace rights, and the Town shall not be responsible for ensuring impermissible obstruction to the solar skyspace as a result of uses or development performed in accordance with Town Code.

The applicant is responsible for remediation of dedicated roads damaged by the construction and maintenance of a Tier 3 or Tier 4 solar energy system. A road use agreement including a public improvement bond or other financial security, the amount thereof to be approved by the Town Board and the bond approved by the Town Attorney as to form, sufficiency, and manner of execution, shall be posted as a condition of permitting.

(8) Permitting Requirements for Tier 4 Solar Energy Systems. All Tier 4 Solar Energy Systems are permitted through the issuance of a special use permit within the Industrial (I), Conservation- Agricultural (C-A), and CAMP Districts, and subject to site plan and special use permit requirements set forth in this Section for Tier 3 projects (all requirements in §185-43(N)(7)). In order to ensure that the benefits of the community solar energy resource are available to the entire community, the Town of Busti shall require all Tier 4 applicants to enter into a Solar Energy System PILOT and Host Community Agreement. These Tier 4 systems are very large systems that have a potential to significantly affect the Town of Busti, its residents, and the economy of the community. Therefore, the Tier 4 systems shall require the following additional submittals, requirements, or revisions to the Tier 3 requirements:

(a) An Agricultural Impact Statement to determine the impact to Agriculture in the Town. The Town of Busti has a standard Agricultural Impact Statement Table of Contents that will be provided to the applicant. The Planning Board, on a project-by-project basis, will work with the applicant on finalizing the requirements of this Agricultural Impact Statement.

(b) An Economic Impact Analysis to determine the impact to the economy of the Town. This includes the agricultural impacts in the Ag Impact statement and information as noted by the Town Planning Board.

(c) Any Tier 4 Solar Energy System located on lands that consist of Prime Farmland soils or Farmland soils of Statewide Importance shall not exceed 50% of the area of Prime Farmland or Farmland of Statewide Importance on the parcel or project site as a whole (if multiple parcels are included) upon which panels and other solar energy equipment (the fenced in area) are to be installed. Any program in which the applicant participates that provides for the use of the land within the fenced in area as farm related uses may be excluded from this 50% coverage threshold calculation based on the amount of space actually occupied by the farm use. This exclusion will only be allowed based on the Planning Board’s determination that these lands are being used for actual Agricultural uses.

(d) If the project proposes to affect more than 50% of these Prime or Statewide Important soils, the applicant may purchase or lease (for the lease period of the proposed project) development rights, of an equal amount of land over the 50% threshold, of another farm within the Town of Busti with Prime or Statewide Important soils located on that land to offset the farmland used or leased in the primary project area. The purchase or lease of the development rights becomes perpetual or so long as project is viable and until fully decommissioned.

(9) Site plan application. For any Solar Energy system requiring a Special Use Permit, site plan approval shall be required. This required site plan application shall include a site plan and the following information:

(a) A Plan illustrating property lines and physical features, including roads, for the project site.

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

(c) A one- or three-line electrical diagram detailing the Solar Energy System layout, solar collector installation, associated components, and electrical interconnection methods, with all National Electrical Code compliant disconnects and over current devices.

(d) A preliminary equipment specification sheet that documents all proposed solar panels, significant components, mounting systems, and inverters that are to be installed. A final equipment specification sheet shall be submitted prior to the issuance of building permit.

(e) Name, address, and contact information of proposed or potential system installer and the owner and/or operator of the Solar Energy System. Such information of the final system installer shall be submitted prior to the issuance of building permit.

(f) Name, address, phone number, and signature of the project applicant, as well as all the property owners, demonstrating their consent to the application and the use of the property for the Solar Energy System.

(g) Zoning district designation for the parcel(s) of land comprising the project site.

(h) Property Operation and Maintenance Plan. Such plan shall describe continuing photovoltaic maintenance and property upkeep, such as mowing and trimming (or other methodologies).

(i) Erosion and sediment control and storm water management plans prepared to New York State Department of Environmental Conservation standards, if applicable, and to such standards as may be established by the Planning Board.

(j) Engineering documents must be signed and sealed by a New York State (NYS) Licensed Professional Engineer or NYS Registered Architect.

(k) A completed SEQR Full Environmental Assessment Form.

(l) A Landscape Plan in accordance with the Special Use Permit requirements of this law.

(m) A calculation of the area of the solar energy system in acres (as defined in the definition of Tier 3 and Tier 4 systems).

(n) For applications for Tier 4 systems, any off-site infrastructure, including transmission lines and points of grid interconnection (POI), shall be noted on site plans and be included in review of the project. Any off-site POI should be subject to the same safety and visibility requirements as the balance of the project.

(o) Any utility poles constructed as part of a solar project may be made available for co-location by other utilities.

(p) Any such other additional information as may be required by the Planning Board a Town professional engineer or consultant, the Busti Town Board, the Town Attorney, the Town Code Enforcement Officer, or other Town entity.

(10) Special Use Permit Design Standards.

(a) Specific Standards.

Lot size. There are no lot size requirements; the project must be shown to meet all setback and other requirements of this law.

Setbacks. All Tier 3 and Tier 4 Solar Energy Systems shall be set back a minimum of 100 feet from the fence surrounding the solar panels and equipment to all non-participating property lines and to the edge of any road right-of-way. Additionally, the setback from the fence line shall be a minimum of 300 feet from the side or rear of a dwelling unit on an adjoining non-participating property. The setback to any off-site participating dwelling unit shall be 100 feet from the side or rear of the dwelling unit.

There shall be no setback requirements for contiguous participating parcels.

Height. The Tier 3 Solar Energy Systems shall be less than or equal to 20 ft. The height of systems will be measured from the highest natural grade below each solar panel. This height requirement can be waived by the Planning Board if the panels are being raised to accommodate agricultural purposes (e.g. grazing).

Fencing Requirements. All mechanical equipment, including any structure for storage batteries, shall be enclosed by a fence, and meet any other regulatory requirements such as NEC, with a self-locking gate to prevent unauthorized access.

Screening and Visibility.

Solar Energy Systems smaller than 5 acres shall have views minimized from adjacent properties to the extent reasonably practicable using architectural features, earthen berms, landscaping, or other screening methods that will harmonize with the character of the property and surrounding area.

Solar Energy Systems larger than 5 acres shall be required to:

a) Conduct a visual assessment of the visual impacts of the Solar Energy System on public roadways and adjacent properties. At a minimum, a line-of-sight profile analysis shall be provided. Depending upon the scope and potential significance of the visual impacts, additional impact analyses, including for example a digital viewshed report, may be required to be submitted by the

b). Submit a screening & landscaping plan to show adequate measures to screen through landscaping, grading, or other means so that views of Solar Panels and Solar Energy Equipment shall be minimized as reasonably practical from public roadways and adjacent properties to the extent feasible. The Planning Board will in good faith determine the adequacy of these measures in its sole and absolute discretion.

c) The screening & landscaping plan shall specify the locations, elevations, height, plant species, and/or materials that will comprise the structures, landscaping, and/or grading used to screen and/or mitigate any adverse aesthetic effects of the system. The landscaped screening shall be comprised of a minimum of 1 evergreen tree, at least 6 feet high at time of planting, plus 2 supplemental shrubs at the reasonable discretion of the Town Planning Board, all planted within each 10 linear feet of the Solar Energy System (. Existing vegetation may be used to satisfy all or a portion of the required landscaped screening. A list of suitable evergreen tree and shrub species should be provided by the Town. This minimum screening requirement will be reduced if adjoining properties are participating properties. Review of survival of plantings will be required annually for ten (10) years and any planted landscaping that dies or is not viable, will need to be replaced.

d) For any buildings or structures (not panels) to be placed on the site, the applicant shall be required to submit plans illustrating how these structures will blend into the character of the area. For example, buildings can be made to look like agricultural structures such as barns.

Agricultural Resources. For projects located on agricultural lands:

Any Tier 3 Solar Energy System located in areas that consist of Prime Farmland soils or Farmland soils of Statewide Importance shall not exceed 50% of the area of Prime Farmland or Farmland of Statewide Importance on the parcel upon which panels and other Solar Energy Equipment (the fenced in area) are to be installed. Any program in which the applicant participates that provides for the use of the land within the fenced in area as farm related uses may be excluded from this 50% coverage threshold calculation based on the amount of space actually occupied by the farm use. This exclusion will only be allowed based on a Planning Board’s determination that these lands are being used for actual Agricultural uses.

Tier 3 Solar Energy Systems located on Prime Farmland shall be constructed in accordance with the construction requirements of the New York State Department of Agriculture and Markets (See NYS Agriculture and Markets Guidelines).

Tier 3 Solar Energy System owners shall develop, implement, and maintain native vegetation to the extent practicable pursuant to a vegetation management plan by providing native perennial vegetation and foraging habitat beneficial to game birds, songbirds, and pollinators. To the extent practicable, when establishing perennial vegetation and beneficial foraging habitat, the owners shall use native plant species and seed mixes. Once established, other agriculture uses such as pasturing livestock and apiculture are permissible and encouraged.

Agricultural Restoration Requirements: once the system is decommissioned, the site shall be restored and remediated in accordance with the NYS Agriculture and Markets Guidelines (this will be a condition of the Special Use Permit).

Noise: The project shall be shown to not have any adverse noise impacts on any surrounding homes or other sensitive receptors (use of NYSDEC regulations concerning noise).

Hazardous Materials: The project components shall not contain any hazardous materials that could contaminate soils or the air by their release (units shall not contain cadmium or other hazardous materials). Specific material data information/specifications (SDS/MSDS sheets) shall be submitted on all components of the project. The applicant must ensure that no harmful chemicals will be leaked into the soils over the life of the project. For certain components of the project, information on spill containment systems will need to be provided. This required information shall be reviewed by the Planning Board, their consultants and the Fire Department.).

Solar Energy System Liability Insurance:

The Holder of a Special Use Permit for a Solar Energy System Shall Agree to secure and maintain for the duration of the permit, public liability insurance as follows:

1) Commercial general liability covering personal injuries, death and property damage: $5,000,000 per occurrence ($10,000,000 aggregate) which shall specifically include the Town of Busti and its officers, councils, employees, attorneys, agents and consultants as additional named insured;

2.) Umbrella cove rage: $10,000,000.

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”.

Insurance Policy Cancellation: The insurance policies shall contain an endorsement obligating the insurance company to furnish the Town of Busti with at least thirty (30) days prior written notice in advance of cancellation.

Insurance Policy Renewal: Renewal or replacement policies shall be delivered to the Town of Busti at least fifteen (15) days before the expiration of the insurance that such policies are to renew or replace.

Copies of Insurance Policy: No more than fifteen (15) days after the grant of the permit before construction is initiated, the permit holder shall deliver to the Town of Busti a copy of each of the policies or certificates representing the insurance in the required amounts.

Certificate of Insurance: A certificate of insurance states that it is for informational purposes only and does not confer sufficient rights upon the Town of Busti shall not be deemed to comply with this Law.

Certificate of Insurance: A certificate of insurance states that it is for informational purposes only and does not confer sufficient rights upon the Town of Busti shall not be deemed to comply with this Law.

(11) Waiver Relief. The Town Board recognizes that no regulation can anticipate every creative plan that may be devised, which, though not in strict compliance with the provisions of this article, nevertheless, is not objectionable. Accordingly, the Town Board is hereby empowered to grant relief to an applicant from the strict application of this Section where the applicant provides sufficient grounds for a finding that the proposal comports as much as feasible with the spirit and letter of this Section and, though not in strict compliance therewith, remains aesthetically pleasing, protects neighboring properties, and preserves property values within the Town of Busti.

(12) Reimbursement of Fees.

(a) An Applicant shall reimburse the Town for any fee or expense incurred in hiring subject matter experts and attorneys to review whether a Solar Energy System proposed for siting pursuant to Article 10 of the New York Public Service Law or Article 94-c of the Executive Law complies with the substantive provision of this local law.

(b) The applicable fees for any review or permit required by this local law shall be set from time to time by resolution of the Town Board. These fees will also include an annual fee to cover the costs of processing and reviewing annual inspection reports and for administration, inspections, and enforcement.

(c) An Applicant for either state or local siting approval shall deliver to the Town Board, along with its application, if local approval is sought, or one-hundred eighty (180) days prior to the filing of an Article 10 or Article 94-C application, if applicable, an amount equal to one percent (1%) of the estimated cost of the project (the “Initial Deposit”). This sum shall be held by the Town in a non-interest bearing account and shall be available to the Town to pay consultants and attorneys engaged by the Town to assist in its review of and preparation for an Article 10 or Article 94-c application. Should the Town be awarded intervenor funds, it shall switch to and deplete those funds before making further use of the Initial Deposit. Following the approval or denial of the state or local application, the Town shall return to the Applicant any excess funds remaining in escrow. If the escrow account has been depleted prior to approval or denial of the application, the Applicant shall deposit such funds necessary for the Town to pay any outstanding consulting fees.

(13) Host Community Agreement. Prior to the issuance of a building permit for any Tier 3 or Tier 4 Solar Energy System, the Applicant for such system shall enter into a Host Community Agreement with the Town of Busti, which shall:

(a) Contractually obligate the Applicant to comply with any terms and conditions of any special use permit approval of the Town Board;

(b) Provide for payment by the Applicant to the Town of an impact fee to be used and applied by the Town to pay for and/or offset the costs and impacts incurred by and/or arising due to the development and/or operation of the solar energy system. The amount of such impact fee shall be established by the Town Board by resolution adopted from time to time, based upon the amount of energy produced by the project and such other factors as the Board shall determine;

(c) Provide for such other contractual requirements as may be necessary given the specific elements of a particular project; and

(d) If the Applicant and/or owner of the project shall enter into an agreement with the Chautauqua County Industrial Development Agency to provide for an abatement of real property taxes or other tax exemption or abatement, be cross-defaulted with the agreements between the Applicant and/or owner and the Chautauqua County Industrial Development Agency.

(14) Ownership Changes. If the owner or operator of the Solar Energy System changes or the owner of the property changes, the special use permit shall remain in effect, provided that the successor owner or operator assumes in writing all of the obligations of the special use permit, site plan approval, and decommissioning plan. A new owner or operator of the Solar Energy System shall notify the zoning enforcement officer of such change in ownership or operator within 30 days of the ownership change.

(15) Safety.

(a) Solar Energy Systems and Solar Energy Equipment shall be certified under the applicable electrical and/or building codes as required.

(b) Solar Energy Systems shall be maintained in good working order and in accordance with industry standards. Site access shall be maintained, including snow removal at a level acceptable to the local fire department and, if the Tier 3 Solar Energy System is in an ambulance district, the local ambulance corps.

(c) If Storage Batteries are included as part of the Solar Energy System, they shall meet the requirements of any applicable zoning code and fire prevention and building code when in use and, when no longer used, shall be disposed of in accordance with the laws and regulations of the Town and any applicable federal, state, or county laws or regulations.

(16) Permit Time Frame and Abandonment.

(a) The Special Use Permit and site plan approval for a Solar Energy System shall be valid for a period of 18 months, provided that construction has commenced. In the event construction is not completed in accordance with the final site plan as may have been amended and approved, as required by the Planning Board, within 18 months after approval, the applicant or the Town may extend the time to complete construction for180 days. If the owner and/or operator fails to perform substantial construction after 24 months, the approvals shall expire.

(3) Upon cessation of electricity generation of a Solar Energy System on a continuous basis for 12 months, the Town may notify and instruct the owner and/operator of the Solar Energy System to implement the decommissioning plan. The decommissioning plan must be completed within 360 days of notification in accordance with the approved decommissioning plan.

(4) If the owner and/or operator fails to comply with decommissioning upon any abandonment, the Town may, at its discretion, utilize the bond and/or security for the removal of the Solar Energy System and restoration of the site in accordance with the decommissioning plan.

(17) Enforcement. Any violation of this Solar Energy Law shall be subject to the same enforcement requirements, including the civil and criminal penalties, provided for in the zoning or land use regulations of the Town.

(18) General complaint process. During construction, the Town Building Inspector can issue a stop order at any time for any violations of a special permit or building permit. The permit holder of a Tier 3 or Tier 4 solar energy system shall establish a contact person, including name and phone number, for receipt of any complaint concerning any permit requirements.

SECTION III. SEVERABILITY/ VALIDITY

If any clause, sentence, paragraph, subdivision, section or part of this law or the application thereof to any person, individual, corporation, firm, partnership, entity or circumstance shall be adjudged by any court of competent jurisdiction to be invalid or unconstitutional, such order or judgment shall not affect, impair, effect or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, subdivision, section or part of this law or in its application to the person, individual, corporation, firm, partnership, entity or circumstance directly involved in the controversy in which such order or judgment shall be rendered.

SECTION IV. EFFECTIVE DATE

This local law shall take effect immediately upon filing with the New York Secretary of State.

Councilman Hanson noted the town received a quote from Allied Alarm Service to install a security system at the Loomis Park Concession Stand which included an installation cost of $395.00 and monthly monitoring fee of $29.95. Chief DePonceau requested the LBPD be given a key holder. Councilman Hanson will have Allied Alarm contact Chief DePonceau.

Councilman Hanson moved the following resolution which was duly moved by Councilman Andrews:

RESOLVED, the Town of Busti purchase a security system from Allied Alarm to be installed at the Loomis Park Concession Stand. The cost of the system includes a one-time installation fee of $395.00 and a monthly monitoring fee of $29.95.

Upon roll call vote, all aye, carried.

Supervisor Robbins noted Mary Beth Moss, Dog Control Officer, is not able to work due to health issues. Ms. Moss has recommended the town hire a deputy for her position who would be available while she is unable to work and on call when she is back to work. Chelsea Edmund is the DCO for the Town of Poland but lives in the Town of Busti and is interested in the position.

Supervisor Robbins moved the following resolution which was duly moved by Councilman Hanson:

RESOLVED, the Town of Busti appoint Chelsea Edmund as Deputy Dog Control Officer at a pay rate of $18 per hour and pay mileage at the rate established at the 2022 Organizational Meeting.

Upon roll call vote, all aye, carried.

Supervisor Robbins noted the Town of Busti has been invited to join the Chautauqua County Office of Emergency Services (OES) in kicking off the update to the Chautauqua County Hazard Mitigation Plan (HMP). Local jurisdictions are required to update the HMP every five years to remain eligible for the Federal Emergency Management Agency’s (FEMA) pre-disaster and post-disaster mitigation grant programs. Chautauqua County OES received a grant from FEMA to complete this update and is requesting your participation in the planning process. The kick-off meeting for Elected Officials is scheduled for Tuesday, June 14^th at 1:00-2:00 p.m. at the Emergency Services office. Emergency Services will also be meeting with Chautauqua County Town & Village Highway Superintendents Association on Wednesday, June 15^th. Councilman Brown agreed to attend the June 14^th meeting via Zoom and Highway Superintendent Greg Johnson will attend the June 15^th meeting.

Supervisor Robbins moved the following resolution which was duly moved by Councilman Brown:

RESOLVED, the Town of Busti Town Board hold a public hearing on Monday, July 11, 2022 at 7:00 p.m. at 125 Chautauqua Avenue, Lakewood, New York to consider a Local Law 5 of 2022 to amend the law regulating Dog Impoundment Fees.

Upon roll call vote, all aye, carried.

Supervisor Robbins noted it was 7:15 p.m. and moved to open the Public Hearing, regarding the application of Andrew VanEvery, 30 Abbey Rd, Jamestown, New York for a Special Use Permit to have a Stand-Alone Accessory building located at 297 Creek Road. Motion was duly moved by Councilman Andrews.

All in favor, carried.

Proof of publication was placed on file.

Supervisor Robbins asked if there was anyone present who wished to speak regarding the application. Several residents commented stating they were concerned that the building would be used for business and that would change the neighborhood. Mr. VanEvery stated his intention was to build a 40’ x 60’ building on the property to secure his personal property and he wanted to put a shed on the property to be used as a “Sugar House”, there would be no outside storage and no deliveries. Mr. VanEvery stated he intends to build a home on the property next summer that would be his residence. The Town Board noted the application indicated he was building a 40’ x 40’ building. Councilman Hanson stated he would like to see a site plan for the property which would include the house, pole building, and shed. Attorney Seachrist stated the applicant would need to submit a new application with the correct dimensions of the pole building. The board agreed to keep the hearing open until the next Town Board meeting on July 11, 2022 at 7:15 p.m.

Supervisor Robbins noted the Town Board had received the final report from the Planning Board on the application of Solar Liberty Energy Systems, Inc for a Special Use Permit allowing it to construct and operate a 10 megawatt “solar farm” at 1192 Orr Street. In addition to the Planning Board report the Town Board received a letter from Empire Energy regarding the application; the letter stated they did not have an agreement with the applicant for mutual use of the property on which Empire Energy has an active natural gas well. Also, the letter stated the plan for the proposed solar development does not allow adequate space for the normal or safe operation of said natural gas well.

Supervisor Robbins moved to set a public hearing on the 11^th day of July, 2022 at 7:30 p.m. on the application of Solar Liberty Energy Systems, Inc for a Special Use Permit allowing it to construct and operate a 10 megawatt “solar farm” at 1192 Orr Street, contingent on release from Empire Energy. Motion was duly moved by Councilman Andrews.

Upon roll call vote, all aye, carried.

Supervisor Robbins moved the following resolution which was duly moved by Councilman Andrews:

RESOLVED, that Supervisor Robbins be authorized and directed to pay the presented General Fund and the Highway Fund, Abstract No. 6 from warrant #283 to and including warrant #2354 in the amount of $181,040.14.

Upon roll call vote, all aye, carried.

Supervisor Robbins motioned to accept the May 2, 2022 Regular Meeting minutes; motion was duly moved by Councilman Hanson.

All in favor, carried.

Councilman Brown reported he met with Code Enforcement Swanson regarding the new CEO program, Mr. Swanson will contact Williamson Law to schedule further training to learn how to upload pdf files and pictures. Fire Inspector Dave Wilfong has not been using the program.

Councilman Andrews reported the approved herbicide treatments to the lake is moving along; the week before Memorial Day the CLA took 17 dump truck loads of weeds out of Burtis Bay.

Councilman Hanson reported he received pricing for the new chargers and talk to National Grid about replacing the existing chargers with new ones, National Grid will have to get back to him because grant money is for adding chargers and not replacing or upgrading them. The grant would only cover the installation part which is approximately $2,000. The actual cost of a new charger is $6,700 with communication and the credit card swipe which with the grant money would cost the town about $4,500 to put a new one in. Councilman Hanson stated if the town is going to install a new charger it might make sense to place it somewhere else where it is accessible to residents, shoppers, or tourists. The cost is for one double unit. Councilman Hanson will look to see if there are other grants available to cover the cost of the unit itself.

Supervisor Robbins moved the board enter Executive Session to discuss personnel matter and possible litigation at 8:01 p.m. duly moved by Councilman Hanson.

Supervisor Robbins moved the board closed the Executive Session at 8:46 p.m. which was duly moved by Councilman Andrews.

All in favor, carried

Supervisor Robbins moved to adjourn the regular meeting at 8:47 p.m. which was duly moved by Councilman Brown.

All in favor, carried.

Respectfully Submitted, __________________________

Darlene H. Nygren, Town Clerk

Town Board – June 6, 2022

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