Proposed Mount Kisco 'Battery Farm' Faces Resistance

MOUNT KISCO, N.Y. - A proposed battery farm is meeting with pushback on several fronts in Mount Kisco.

Massachusetts-based New Leaf Energy is seeking to build a Tesla Megapack 2 XL facility at the 37-acre Diamond Properties complex at 333 North Bedford Road.

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The site where the 20-megawatt BESS (Battery Energy Storage Systems) is seeking to be located is in the village’s Light Manufacturing Zone.

The project itself encompasses an area of about 6 acres; the facility itself would take up about 10,000 square feet.

Last year, New Leaf’s attorney, Robert Gaudioso, asked the village’s building inspector, Peter Miley, for an official determination that the BESS project met the definition of a “public utility facility” under the village code.

And that is: “A facility other than a personal wireless service facility for the provision of public utility services, including facilities constructed, altered or maintained by utility corporations, either public or privately owned, or government agencies, necessary for the provision of electricity, gas, steam, heat, communication, water, sewage collection or other such service to the general public. Such facilities shall include poles, wires, mains, drains, sewers, pipes, conduits, cables, alarms and call boxes and other similar equipment; but shall not include office or administration buildings.”

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Miley ultimately found that it did not.

However, in explaining his ruling, Miley said he fully understood that “BESS is likely to be an integral part of the energy systems of the future, as New York State attempts to transition to more renewable energy sources.”

The village is considering the adoption of “regulations that will allow BESS to be sited within its boundaries in the future,” however, “at present, a stand-alone BESS is not a permitted use in any district,” he pointed out.

The current code predates the existence of BESS, placing Mount Kisco in the same awkward position that many municipalities are finding themselves in.

Also a subject of debate is whether BESS, even where allowed, are actually “necessary” for the provision of electricity.
They do not generate power. Instead, they store it and then transfer it back to the grid as required.

If the project moves forward, New Leaf, a for-profit entity, would enter into an interconnection agreement with Consolidated Edison.

Ruling Appealed

Following Miley’s ruling, New Leaf, aka North Bedford Energy Storage LLC, took its case to the Zoning Board of Appeals where it sought both an interpretation of the zoning code and, in the alternative, variances for use, fence height, and coverage area.

“If the code is ambiguous – and in this case I don’t think it is – essentially the tie goes to the home team. Because of the way ordinances are interpreted, the benefit has to be given to the applicant,” Gaudioso argued at the ZBA’s June 18 meeting.

In a letter to the ZBA in January, Gaudioso said the facility will “become an integrated component of the region’s grid” and will support the state’s goal of becoming 70 percent carbon neutral by 2030.

“The rule of law is clear: energy facilities which connect to the underlying grid and help distribute energy to the public are ‘public utility facilities,’ indistinguishable in all aspects from traditional power generation facilities,” he wrote.

The BESS will also help “integrate renewable energy sources,” such as solar and wind, into the grid while maintaining its stability, he said, noting that the intent is to provide electricity during periods of peak usage and reduce the risk of blackouts during extreme weather conditions, such as the heat wave.

Consolidated Edison identified the hours of 11 p.m. to 3 p.m. as the “time of highest strain on the grid,” Gaudioso wrote.

Proponents of battery storage systems argue that there is also an environmental benefit in creating a more distributed grid because it could help cut back on the use of so-called “peaker plants,” which operate on call, supply power that is higher in cost, and are typically more fossil-fuel intensive, meaning they emit more greenhouse gases.

Gaudioso told the ZBA that Con Ed builds its own BESS, but also turns to outside contractors.

The utility believes these types of infrastructure are less expensive than constructing or modifying power plants, he explained.

“It’s ultimately their responsibility and goal to keep costs down” because passing them along to customers is highly regulated, Gaudioso said.

After several intense discussions about the application, the ZBA decided on Tuesday, June 18, to conduct a “straw poll” of members to see if they were ready to uphold Miley’s determination or not.

“The applicant is entitled by law to an answer at this stage,” said Chairman Wayne Spector, adding that he understood that the situation was a “difficult one” but thought that “we all have to stake out a position on this interpretation first and foremost.”

Alex Roithmayr felt that BESS are public utility facilities while Ken Goldberg was still “up in the air” about the way public utility facilities are defined in the code.

Spector said that he thinks the technology can be “useful” and serve as a “public good,” but he’s on the fence about calling it “necessary.”

Any interpretation would be precedent setting and have a wide-ranging effect on the village, he said, noting that even if things don’t go the applicant’s way, “it’s not the end of it.”

“It just means there needs to be further steps taken whether it’s by way of federal, state, or local legislation that better defines it and helps it,” Spector said, adding: “I’m not sure I feel comfortable having this board be the decider or that.”

George Hoyt pointed out that so many new technologies have come to be over the past decade that towns frequently find themselves grappling with outmoded zoning codes.

He agreed that it’s the courts or lawmakers higher up the food chain that will likely wind up making these decisions.

Jacqueline Broth said she didn’t believe that the proposed BESS “bridges the gap” between a public utility and a public utility facility or that applicants had successfully argued that it’s “necessary.”

As in the past, laws have had to “catch up” with technology, she said.

“We’re not there,” Broth opined, adding that BESS aren’t in a “describable place for us that’s comfortable” and that she believed that definitions of public utility facilities have to be legislated or come through the court system and not determined by local zoning boards.

The ZBA directed its attorney, Lisa Cobb, to write up a resolution laying out the board’s position. It is likely to be voted on at its July 16 meeting.

Meanwhile, the ZBA left the public hearing on New Leaf’s application open for written comment.

Local Law Weighed

On Monday, June 17, Village Manager Ed Brancati presented the Village Board with a draft of proposed legislation that would regulate BESS – whether big or small -- in the future.

It’s being reviewed by the board’s attorney, Anna Geogiou.

He also submitted drafts of local laws on parkland preservation and wireless facilities, but noted that the one involving battery energy storage systems was more “pressing.”

Worried that the village might be rushing things, Deputy Mayor Theresa Flora cited the gravity of the situation and suggested that it declare a moratorium on BESS immediately so the board can take its time crafting the local BESS law.

“I’m afraid that I’m not qualified to look at this code and to know what ramifications it might have. If I make a mistake I could ruin things for different areas of the village, affect people’s homes, their quality of life, and I don’t want to do that,” she said.

Trustees Angie Garcia-Guerra and Karen Schleimer backed up Flora’s call for a moratorium.

Brancati pointed out that declaring a moratorium could take just as long as crafting the local law, which has to be done anyway.

“It’s a conversation, a discussion that needs to start at some point,” he said.

Village trustees will have ample opportunity to make revisions to the internal document and that nothing will be cast in concrete until the public has a chance to weigh in, Brancati promised, reassuring them that they “can do this right.”

“We’re going to review the code and do the homework and do the work,” he said.

Mayor Michael Cindrich noted Monday, June 17 that while he’s not against battery energy storage systems in principle, he’s very concerned about their locations due to public safety issues.

“The technology is good. Is it perfected? I don’t know. There have been too many near disasters. It’s something worth exploring. My issue is where they go,” he said.

(There were three fires involving commercial BESS in New York last summer, including a brand-new 12 MW Convergent Energy facility in the Orange County town of Warwick that smoldered for days. The incidents prompted Gov. Kathy Hochul to create a state inter-agency working group that will be tasked with ensuring the safety of BESS.)

Safety Concerns

Safety issues were raised by residents during the ZBA’s public hearing Tuesday.

The proposed New Leaf site is 45 feet away from a soccer field, 80 feet away from the nearest commercial buildings -- which contain a trampoline park, indoor go-kart venue, a bowling alley -- and 80 feet away from Metro-North rail lines.

If constructed, it would be within the wetland buffer and would require a permit and an environmental impact review.

An 80,000-square-foot ShopRite supermarket is slated to open at 333 North Bedford Road, a 37-acre property, this fall.

Noting that battery energy storage “is a new technology” and that there are known safety risks, Carpenter Avenue resident Sally Fay said she was concerned about putting BESS “right in the middle of Mount Kisco.”

Former Mount Kisco police officer Lou Terlizzi, also of Carpenter Avenue, cited New York City Fire Department stats that found there were 268 lithium-ion battery-related fires, 150 injuries, and 18 deaths in 2023 in the city.

Those types of batteries are “highly flammable” and if one catches fire, it emits “toxic fumes that are corrosive, poisonous, and explosive,” he said.

The flames cannot be doused with plain water, and it sometimes takes days, or even weeks, for the fire to burn itself out, said Terlizzi, referencing the Orange County BESS fire.

“Residents complained that the air smelled like burning glue and plastics. Others said it smelled like nothing they’d smelled before. The trees turned black,” he said.

Terlizzi wondered if the ZBA had approached local firefighters whose input, he said, “is essential.”

He called on the Village Board to immediately declare a moratorium on BESS until it can be sure that “the safety of all first responders and the public can be guaranteed in the event of an incident.”

Terlizzi pointed out that state Sen. Peter Harckham (D-Lewisboro), whose district contains both Mount Kisco and Carmel, has come out in support of a moratorium on a 116-megawatt BESS in Mahopac proposed by Virginia-based East Point Energy.

While the site itself is 95 acres, the most buildable land is located within 150 feet of homes in the adjacent town of Somers.

Residents of other towns have been holding protests, posting signs, and appealing to local officials for a moratorium, if not an outright ban, on BESS.

On Wednesday, June 19, nearly 200 people – including Somers Town Supervisor Rob Scorrano -- packed a public hearing before the Carmel Town Board on the proposed moratorium. The hearing was left open until next month.

Somers has hired the White Plains firm of Abrams Fensterman to act as its special counsel if needed.

Terlizzi also referenced a call by Yonkers Mayor Mike Spano for a six-month ban on lithium-ion battery facilities so that the city can have more time to determine their environmental impact.

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