Ordinance No. 13-12

Introduced: May 30, 2013
Public Hearing: June 24, 2013
Status: Adopted

An ordinance to amend Article XXI “Solar Zoning and Standards,” being sections 330-260 and 330-261 of the code of the Township of Vernon to revise solar zoning and standards

Note: The first reading of this proposed ordinance occurred at the May 13, 2013 council meeting at which time the ordinance was tabled.

BE IT ORDAINED by the Township Council of the Township of Vernon that Article XXI entitled “Solar Zoning and Standards,” of the Land Development Code shall be and is hereby amended as follows:

Section 1. Section 330-260 entitled “Solar: Zoning” and Section 330-261 entitled “Solar: Standards” are hereby deleted in their entirety and the following shall be inserted in their place:

§330-260. Solar: Zoning and Standards.

  1. Solar or photovoltaic energy facilities and structures are not permitted uses in any zone within Vernon Township. The Land Use Board shall approve a site plan for a minor solar or photovoltaic energy facility or structure and a major solar or photovoltaic energy facility or structure which shall meet site plan review standards and requirements as set forth in Article VI “Subdivision and Site Plan Review and Approval, of this Chapter” with the following exception:
    1. A roof-mounted solar system shall be a permitted accessory use in all zones. A roof-mounted solar system and all necessary equipment shall not extend more than 12 inches beyond the edge of the roofline or 12 inches above the highest point of the roof surface or structure. Flat roofs shall be exempt from the height requirement. However, solar panels on a flat roof shall not extend more than five (5) feet above the roofline.
  2. Ground-mounted minor solar or photovoltaic energy facilities or structures shall be allowed only in accordance with the following requirements:
    1. Minor solar facilities shall have a setback requirement consistent with building regulations for accessory structures. Ground arrays which are accessory to an existing structure shall not be permitted in any front yard. These systems shall not exceed 15 feet in height when installed as ground arrays. Cadmium telluride solar panels shall not be permitted due to the highly carcinogenic nature of cadmium and the possible detrimental effects on children, wildlife, water supplies and the environment. Screening of the minor facilities shall be deemed necessary, in the Board’s discretion, to minimize impacts on adjacent parcels.
  3. Major solar or photovoltaic energy facilities or structures shall be allowed only in accordance with the following requirements:
    1. Minimum lot size: 20 acres. Preliminary and final site plan approval shall be obtained prior to obtaining a zoning permit. In the LI District, approval for major solar or photovoltaic energy facilities or structures on lots smaller than 20 acres shall be at the discretion of the Land Use Board. Solar facilities for non-preserved farmland shall be a maximum of 10 acres, have a 2 Megawatt (MW) limit and have a 1:5 ratio, i.e. one acre of the farm in solar use for every 5 acres of the farmland assessed area in order to continue to maintain Right to Farm protection.
    2. All major solar or photovoltaic energy facilities or structure installations shall comply with all applicable State and Federal laws and regulations.
    3. No soil shall be removed from any site upon which major solar or photovoltaic energy facilities and structures are constructed unless approved as per the Vernon Township Soil Removal Ordinance (Chapter 483). Grading within Prime Farmland and Farmlands of Statewide Significance shall be limited to only that necessary to construct access roads, berms for screening and for construction of inverter and switching equipment pads.
    4. Except pursuant to a permit issued by the New Jersey Department of Environmental Protection (NJDEP), no portion of major solar or photovoltaic energy facilities and structures shall occupy areas of land designated and regulated by NJDEP as floodplains, flood hazard areas, wetlands, wetland transition areas or riparian corridors. An applicability determination from the NJDEP shall be provided to document the presence and/or absence of these regulated areas. Buffer maintenance shall be consistent with the Municipal, State and Federal regulations. Any Highlands Preservation Area permits must be obtained prior to any work being completed on the site.
    5. Major solar or photovoltaic energy facilities and structures shall not occupy any area beyond the required principal building setbacks for the zone in which the facility is to be located, exclusive of poles for interconnection of the facility to the electrical grid. The minimum vegetated visual and security buffer width for major solar or photovoltaic energy facilities or structures shall be 50 feet and shall be provided in all zoning districts. The minimum principal setbacks shall be increased to 50 feet in any zoning district where the principal building setback is less than 50 feet. Otherwise minimum setbacks for principal structures within the zoning district shall apply. The Board may reduce setback requirements in the Light Industrial District if the Board finds that such a reduction will not impact adjacent parcels.
    6. Major solar or photovoltaic energy facilities and structures shall be visibly screened from the public traveled way (public roads, trails, navigable waterways, scenic highways and by-ways), open space, preserved farmland, publicly owned properties and historic resources, including sites and buildings listed or eligible for listing on the State and National Registers of Historic Places.
      1. To the extent achievable, solar or photovoltaic energy facilities and structures shall be sited using the natural topography to screen the energy project from public view and the view of any adjoining residences.
      2. If the property is adjacent and contiguous to a permanently preserved farm, open space and/or public access easements it shall buffer the farm, open space and/or easements from view.
      3. The following minimum screening requirements shall be met. However, notwithstanding the minimum requirements, the applicant shall demonstrate, to the satisfaction of the Land Use Board that the proposed screening provides a visual screen of the facility from neighboring properties. Additional screening may be needed to meet this requirement as determined by the Board.
        1. Screening shall consist of a combination of native plantings, to the extent possible. Alternately, an earthen berm may be employed if existing vegetated screening and native plantings will not suffice to provide the necessary buffer and maintain the rural character of the Township. The need for and location of vegetative screens includes the identification of appropriate species and varieties of vegetation to ensure that there is adequate visual screening throughout the year.
        2. The landscaping plantings shall be designed for enhancing the quality of the soil and the ability of the land to absorb rainwater.
        3. Landscaping shall be limited to the extent possible of native species of deciduous and coniferous trees and shrubs that are indigenous to the area, as listed in the Natural Resource Inventory, and shall not include invasive species as listed in Natural Resource Inventory of Vernon Township. Such plantings shall be depicted on a plan prepared by a licensed professional. The applicant shall rely upon existing vegetation, including existing hedgerows or windbreaks that provide screening, to the maximum extent practical. The appropriate height or caliper of the vegetation to be planted shall ensure that there is a 75 percent screening of the solar energy generation facilities within 5 years of completing the installation of the facilities. A photo simulated exhibit depicting screening at key locations at the projected 5-year period shall be required.
      4. A barrier shall be installed behind the required screen which shall:
        1. Secure the facility at all times.
        2. Restrict access to all electrical wiring that may be readily accessible.
        3. All electrical control equipment shall be labeled and secured to prevent unauthorized access.
        4. Conform to the Uniform Construction Code and other applicable standards.
        5. One or more access gates to the facility shall be provided. Each access gate shall include a sign identifying the property owner as well as responsible parties for operation of the major solar and photovoltaic energy facilities and structures; for maintenance of the facility; and for maintenance of the visual screen, landscaping and security fence. Contact information for all of the above responsible parties shall be provided on each access gate sign.
        6. No signs shall be posted on a solar facility or any associated building, structures, or fencing with the exception of access gate signs, appropriate warning signs, and manufacturer’s or installer’s identification.
        7. All transformers and high voltage equipment shall be situated within a compound, which shall be enclosed within a security fence and access gate, which shall remain locked. If appropriate, the entire facility shall be enclosed within a security fence and access gate.
        8. The height of security fences and access gates shall not exceed 8 feet. Barbed wire fences are not permitted except in cases where it is demonstrated to the satisfaction of the Board of jurisdiction that barbed wire fencing is required for security purposes. In such cases the total height of the fence and access gates including barbed wire shall not exceed 8 feet. Approval of barbed wire fencing for solar facilities is at the discretion of the Board of jurisdiction.
    7. A Maintenance Plan shall be submitted by the applicant for the continuing maintenance of all required plantings, including a schedule of specific maintenance activities to be conducted. A Maintenance Plan narrative shall also be included on the site plans in note form. Maintenance of the required landscaping and fencing shall be a continuing condition of any approval that may be granted. A cost estimate for required plantings shall be presented as part of any application and a 5-year maintenance bond approved by the Township Engineer, which posts a minimum of 5 percent of total landscaping costs, shall be a condition of approval. The Maintenance Plan shall be environmentally responsible.
    8. All ground areas occupied by a major solar or photovoltaic energy facility or structure installation that are not utilized for access to operate and maintain the installation shall be planted and maintained with shade tolerant grasses for the purpose of soil erosion control and soil stabilization:
      1. A seed mixture of native, non-invasive shade tolerant grasses shall be utilized and specified in a landscaping plan that shall be provided.
      2. If it can be demonstrated by the applicant that an alternative vegetative ground cover consisting of a seed mix of native, non-invasive plant species and non-native, non-invasive shade tolerant species shall be accepted for soil erosion control and soil stabilization, and the alternative can be better sustained over the life of the facility, the reviewing Board may approve such an alternative to the requirement for native, non-invasive shade-tolerant grasses or mix of grasses.
      3. Roadways within the site shall not be constructed of impervious materials in order to minimize the amount of soil compaction, except that driveways into the site shall meet the Township standards for driveway entrances from public roadways. Internal roadways shall be constructed to the minimal extent possible. Roadways within the occupied area shall be designed as grassed roadways to minimize the extent of soil disturbance, water runoff and soil compaction. The use of geotextile fabrics and gravel placed on the surface of the existing soil for the construction of temporary roadways during the construction of the solar energy generation facilities is permitted provided that the geotextile fabrics and gravel are removed once the solar energy generation facilities are in operation.
      4. The bed and banks of existing drainage ditches, brooks, streams and drainage swales shall be maintained in their natural condition, except that where soil erosion is evident in these features due to a lack of suitable stabilized vegetation. The Board may require such areas to be planted and stabilized in accordance with the recommendations found in Chapter 8, Restoration Design, of the publication entitled Stream Corridor Restoration, Principles, Processes and Practices, 10/98 Published Version. Revised 8/2001, prepared by the Natural Resource Conservation Service and available at at this link.
      5. The components of this plan may be combined with the requirements of the Grading and Drainage Plan. See Subsection A(7), below.
    9. The required landscaping plan shall include the provision of adequate and appropriate drainage features, which shall be designed such that site grading and construction maximizes the natural drainage patterns of stormwater originating within the property boundaries and beyond property boundaries. If grading is proposed, then a grading and drainage plan shall be submitted, which shall demonstrate that the project is in compliance with the Township’s Stormwater Ordinance (Chapter 330, Article XII) and other applicable State standards.
      1. A grading and drainage plan, including a soil erosion, a soil stabilization and a soil grading plan shall be submitted under the seal of a licensed professional engineer prior to any permits being issued. The plan shall adequately demonstrate to the Board of jurisdiction’s engineer that no stormwater runoff or natural water shall be diverted as to overload existing drainage systems or create flooding. Such plan shall also address the need for additional drainage structures on other private properties or public lands.
      2. The grading and drainage plan shall show, among other things:
        1. All existing and proposed natural and artificial drainage courses and other features for the control of drainage, erosion, and water generally;
        2. The calculated volume of water runoff from the slope and from the lot in question, as proposed to be improved; the existence of all natural and artificial drainage courses and facilities within 500 feet of the lot, which are or will be used to carry or contain the runoff from the slope and the lot; and
        3. The effect of any increased water runoff on all adjacent properties and any other property which will be materially affected by increased water runoff.
      3. Calculations shall be provided to adequately demonstrate that existing preconstruction stormwater drainage velocities shall not be exceeded in the post development condition.
      4. The use of stone shall not be permitted for soil erosion control and soil stabilization unless as part of an overall plan approved by the Board of jurisdiction.
    10. In addition to those items required for an application to be deemed complete, a site plan application shall depict the following:
      1. Location, dimensions, and types of existing structures on the property.
      2. Location of proposed and existing overhead and underground utility and transmission lines.
      3. Location of any proposed or existing substations, inverters or transformers.
      4. Details of solar panels and arrays. Cadmium telluride solar panels shall not be permitted due to the highly carcinogenic nature of cadmium and the possible detrimental effects on children, wildlife, water supplies and the environment.
      5. Details of all inverters and equipment on the site including size dimensions and noise levels during use.
      6. Description of how the energy generated by the facility will be connected to the electrical distribution or transmission system or the electrical system of the intended energy user. This description shall also address the ability to disconnect the system in the event of an emergency or maintenance.
      7. Description of shielding of any electric equipment to prevent interference of radio or television reception at the property line.
      8. Description of any necessary upgrades or modifications to existing substations or the necessity for a new substation.
      9. For projects over 2MW, the location and elevations of all transmission lines, support structures and attachments to a substation(s).
      10. Location and condition of existing hedgerows and vegetated windbreaks.
      11. A description of any lighting and its impact on neighboring residences and properties.
      12. A construction plan to include, but not limited to mounting techniques and a description of on-site construction.
      13. A description of glare on neighboring properties and residences.
      14. An as-built plan shall be provided following completion of the project as a condition of approval for the site plan.
    11. Permitted height—the maximum permitted vertical height above ground for solar and photovoltaic energy panels shall be 15 feet.
    12. The use of lead-acid batteries shall not be permitted in major solar energy systems and facilities except as standby power supplies for control systems. Cadmium telluride solar panels shall not be permitted due to the highly carcinogenic nature of cadmium and the possible detrimental effects on children, wildlife, water supplies and the environment.
    13. Solar energy generation facilities shall be designed to comply with either of the following standards for sound emission:
      1. The sound level shall not exceed 40 dBA when measured at any point on the property line of the solar facility; or
      2. The sound level shall not exceed the ambient sound levels measured at locations at the property line of the solar facility that reasonably represent current or potential off-site sensitive receptors in accordance with the following requirements:
        1. Ambient sound level measurements shall be made with an octave band sound level meter during daylight hours for periods of at least 1/2 hour and on 3 separate occasions, a minimum of 4 hours apart, representing morning, mid-day and evening, at least one of which shall be during a non-rush hour. The meter shall be set for slow response with a one-second sampling interval; and
        2. The data reported for each occasion shall be the octave band values (31.5 Hz to 8,000 Hz) from the one second sample that represents the L90 or Lmin broadband value (“unweighted” or “flat” response, e.g., dBZ).
    14. Any disturbance of wooded or forested areas shall be in compliance with the Vernon Tree Protection Ordinance (Chapter 330, Article XX).
    15. All applications for a major solar facility shall be accompanied by a decommissioning plan to be implemented upon abandonment, or cessation of activity, or in conjunction with removal of solar energy systems. The decommissioning plan shall be submitted in accordance with the requirements of this section. The decommissioning plan shall also be documented on the site plans in note form. Prior to removal of solar energy systems a demolition permit for removal activities shall be obtained from the Vernon Township Construction Official. Prior to issuance of a demolition permit, the owner or operator of the facility shall post a performance bond to ensure removal of the facility or systems in accordance with the decommissioning plan. Disconnection of solar energy systems shall be supervised by an electrician licensed in the State of New Jersey. The Zoning Official shall be responsible for compliance with the decommissioning plan.
      1. Solar and photovoltaic energy facilities and structures which have not been in active and continuous service for a period of 18 months shall be removed from the property to a place of safe and legal disposal in accordance with a decommissioning plan. In order for the facility to maintain its status as an operating solar farm, an annual report shall be submitted to the Township Zoning Official stating the amount of electricity generated by the facility in the previous year and the number of days the facility was operational.
      2. If the applicant ceases operation of the project for 18 months; or begins, but does not complete, construction of the project within 18 months of start of construction, the applicant shall restore the site according to a decommissioning plan prepared by the applicant and approved by the Board. The applicant shall submit a decommissioning plan that ensures that the site will be restored to a useful, nonhazardous condition without significant delay, including but not limited to the following:
        1. Removal of aboveground and underground equipment, structures and foundations. The plan shall describe the means by which all equipment and components of the system(s) shall be disposed of in an environmentally responsible manner and in accordance with prevailing Federal, State and local regulations.
        2. Restoration of the surface grade and soil after removal of aboveground structures and equipment.
        3. Revegetation of restored soil areas with native seed mixes, plant species suitable to the area, which shall not include any invasive species. In farmland areas, the revegetation component of the decommissioning plan may include provisions to resume agricultural use of the site.
        4. The plan must provide for the protection of public health and safety and for protection of the environment and natural resources during site restoration. The decommissioning of all solar energy generation facilities shall be done in accordance with a conservation plan designed to address the impacts of the decommissioning process.
        5. The plan must include a timeline for completion of site restoration work.
      3. A cost estimate shall be provided for the cost of fully implementing the decommissioning plan prior to the issuance of a demolition permit. The cost estimate shall be subject to review and approval by the Township Engineer.
      4. Before beginning any decommissioning activities, the applicant must submit a performance bond in a form and amount satisfactory to the Township Attorney, which shall be based upon an estimate approved by the Township Engineer, assuring the availability of adequate funds to remove the solar infrastructure and restore the site to a useful, nonhazardous condition in accordance with the decommissioning plan.
      5. Upon cessation of activity for a cumulative period of 18 months of construction or installation activities of an approved major solar or photovoltaic energy system, the Township may notify the owner and/or the operator of the facility to complete construction and installation of the facility. If the owner and/or operator fail to complete construction and installation activities within 180 additional days, the Township may order the owner and/or operator of the facility to implement the decommissioning plan. Within 180 days of notice being served, the owner and/or or operator shall substantially complete all activities in the decommissioning plan.
      6. Upon cessation of activity of a fully constructed major solar or photovoltaic energy system for a cumulative period of one year, the Township may notify the owner and/or the operator of the facility to implement the decommissioning plan. The Township Zoning Official shall be responsible for enforcement. Within 180 days of notice being served, the owner and/or operator shall either resume energy generation to at least 80 percent capacity of the facility at cessation of activity, or fully implement the decommissioning plan. If, within 180 days of receipt of notice, the owner and/or operator of the facility or system fail to resume energy generation to at least 80 percent of capacity of the facility or system as established at the time of approval, the Township may order the owner and/or operator of the facility to implement the decommissioning plan.
      7. If the operator fails to fully implement the decommissioning plan subject to the procedures and timelines set forth is paragraphs (e) and (f) above, or is otherwise unable to restore the site as required within 180 days of the Township’s service of notice in accordance with this section, the Township may, at its own expense, provide for the restoration of the site in accordance with the decommissioning plan and may in accordance with the law recover all expenses incurred for such activities from the defaulted operator and/or the property owner. The costs incurred by the municipality shall be assessed against the property, shall become a lien and tax upon the said property, shall be added to and be a part of the taxes to be levied and assessed thereon, and enforced and collected with interest by the same officers and in the same manner as other taxes.

Section 2. Should any section, paragraph, sentence, clause or phrase of this Ordinance be declared unconstitutional or invalid for any reason by any Court of competent jurisdiction, such provision(s) shall be deemed severable and the remaining portions of this Ordinance shall remain in full force and effect.

Section 3. All ordinances or parts of ordinances or resolutions that are inconsistent with the provisions of this Ordinance are repealed to the extent of such inconsistency.

Section 4. The Township Clerk is directed to give notice at least ten days prior to the hearing on the adoption of this ordinance to the County Planning Board and to all others entitled pursuant to the provisions of N.J.S.A. 40:55D-15. The Township Clerk is further directed to refer this Ordinance to the Township Land Use Board, pursuant to N.J.S.A. 40:55D-64. Upon the adoption of this ordinance, after public hearing, the Township Clerk is further directed to publish notice of the passage and to file a copy of this ordinance, as finally adopted, with the Sussex County Planning Board, as required by N.J.S.A. 40:55D-16.

Section 5. This ordinance shall take effect after publication and passage according to law.