Mt. Kisco ZBA Upholds Inspector’s Battery Energy Storage Interpretation

The Mount Kisco Zoning Board of Appeals last week upheld the village building inspector’s interpretation that a proposed battery energy storage system (BESS) does not constitute a public utility.

However, the ZBA held off deciding on whether to grant applicant New Leaf Energy’s use variance until the board can conduct a site visit of the location at the complex at 333 N. Bedford Rd. where the facility has been proposed.

Last year, New Leaf had requested that Building Inspector Peter Miley interpret whether the village code would deem a BESS a public utility and whether the facility is necessary. The company appealed Miley’s decision from last December to the ZBA, where he had concluded the facility does not meet the standard for a utility.

At the same time, New Leaf also submitted an application for a use variance as a backup plan.

Last week’s formal vote on the interpretation came a month after the ZBA had taken a straw poll of its members that produced the same sentiment.

ZBA Chair Warren Spector said while energy storage is undoubtedly the wave of the future, the board had the challenge of trying to make a decision on a matter that the village code could not have anticipated, and as a result, could not adequately address the issue.

“I don’t believe it’s our place to expand the code,” Spector said. “I don’t think that’s what we do…We’re here for a very, very specific purpose despite our personal feelings that may favor, obviously, clean energy.”

Attorney Robert Gaudioso had spent portions of the past few ZBA meetings trying to convince the board that a BESS is a public utility.

As early as 2015, New York State recognized the need for greater energy generation, including more clean energy, and storage facilities.

Gaudioso said a public utility is defined as a facility necessary for the provision of electricity, particularly at times of peak demand.

The state is also looking to hit its target of 70 percent carbon neutrality by 2030, making the BESS facilities necessary on a state level.

“It’s to close down the environmentally polluting peaker plants,” Gaudioso said. “These peaker plants are primarily located in areas of disadvantaged communities.”

Furthermore, if there is ambiguity in the code, then zoning disputes have historically favored the applicant over the municipality, he said.

In voting against overturning Miley’s interpretation, ZBA member Jacqueline Broth said she doesn’t question the need for creation of energy storage systems, but a BESS does not create power.

“All they’re doing is storing power that’s being created somewhere on the grid,” Broth said. “It has nothing to do with this facility. I do not believe it’s necessary because it’s actually tied to a power generation source, and since it is not, I don’t believe it’s a utility.”

Gaudioso responded that there’s nothing in the definition of a public utility that requires it to be tied to a power generating source.

“In fact, we talked about it in the past. Substations, which I don’t think anyone would debate is a public utility facility, they are not tied to a power generating source any differently than this could be and they don’t generate any power, so there’s a distinction there,” Gaudioso said.

The board’s dissenting vote came from member Alex Roithmayr, who concluded that a BESS is a public utility much like telecommunications towers and water towers.

“Con Ed would not be putting out RFPs and investing in this technology if it was not deemed a necessary technology,” Roithmayr said.

After the 4-1 vote, the board and Gaudioso entered into a discussion about the use variance as an alternative way to site the facility.

However, the board wanted to take get a firsthand look at the site and see exactly where the proposed BESS would be located. It is adjacent to a soccer field at the 333 N. Bedford Rd. complex, which has generated concern.

New Leaf Energy would have to have its application reviewed by the village’s Planning Board with respect to the state Environmental Quality Review Act and for site plain approval.

The board will reconvene next at its September meeting.

Meanwhile, the Village Board last week scheduled a public hearing for Monday, Aug. 5 on a potential six-month moratorium for a BESS application. A moratorium would provide the village time to properly draw up local legislation to define and regulate a BESS.

On July 10, the Carmel Town Board in Putnam County approved a similar moratorium after an uproar over a much larger facility has been proposed on the Mahopac-Somers border.