Mount Kisco Moves Forward with 'Battery Farm' Moratorium After Miscommunication with County Planning Department

MOUNT KISCO, N.Y. - Mount Kisco has to have a "do-over" on a moratorium on standalone battery energy storage systems, Mayor Michael Cindrich announced at the Village Board's Aug. 19 meeting.

After holding a public hearing on Monday, Aug. 5,  trustees voted unanimously to approve a six-month ban on any BESS that don’t have connections to solar facilities.

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Subsequently, the board learned it would have to repeat the process because the proposed local law hadn't been referred to the Westchester County Planning Department for comment as required.

Village Counsel Daniel Pozin chalked it up to a simple “miscommunication.”

“It’s a general law, but it pertains to zoning and because it does, it has to go to the county,” he explained.

Village Manager Ed Brancati confirmed that the referral is now in the county's hands and the new hearing date -- Monday, Sept. 4 at 7 p.m. -- has been relayed to all interested parties.

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Cindrich said its likely that the county Planning Department’s response will be that the proposed moratorium is “a local determination.”
Once the t's are re-crossed and the i's re-dotted, the moratorium will be filed with the secretary of state.

It will impact a BESS project proposed for the Diamond Properties commercial complex at 333 North Bedford Road, Brancati confirmed.

Prior to the resolution’s passage on Aug. 5, Cindrich noted that village zoning codes currently do not provide for the regulation of BESS projects.

The purpose of the moratorium – which can be extended by two additional 30-day periods – is to give village staff, consultants, and fire safety experts time to study BESS and come up with recommendations for amending local laws.

(Staff includes the village manager, engineer, attorney, planner, and building inspector.)

Secondly, the board and the public also need time to “fully and carefully” consider those recommendations before the former enacts them. Hearings will be held.

Village officials are “concerned with the impact of BESS on, among other things, surrounding properties, neighborhoods, the environment, and public health and safety,” Cindrich said.

Additionally, the board is “aware” of the rights of folks to use their property “in accordance with existing laws” and is also “sensitive to the protection of the law.”

Only two folks spoke in person during the Aug. 5 hearing: John Rhodes, chairman of the village’s Conservation Advisory Council (CAC), and resident Lou Terlizzi. Both supported the moratorium.

No one chimed in via ZOOM.

Rhodes thanked the board “for drafting such a careful and comprehensive motion on the matter.”

Before the board voted on the moratorium, Trustee Karen Schleimer commented: “Clearly it’s much appreciated and needed.”

A committee will be formed to come up with a comprehensive plan for the regulation of BESS, including where they will be permitted and how many will be permitted in order to ensure that they can operate with as few “detrimental cumulative impacts to the community” as possible, he said.

The gathering of information, as part of the village’s continuing administration and management, constitutes a “Type 2” action under the State Environment Quality Review Act (SEQRA) and doesn’t require further environmental review, Cindrich said.

While the moratorium is in place, BESS projects will not be granted approvals for any requested zoning changes, variances, subdivisions, site plans, special use permits, building permits, demolition permits, and sign permits.

The only exception would be an “emergency,” and that would be determined by the building inspector.

According to the resolution, during the moratorium no applications for standalone BESS will be accepted and no businesses will be allowed to “begin to operate as a BESS.”

After the initial 180 days are over, the moratorium can be extended for two additional periods of up to three months each by unanimous vote of the Village Board.

The law contains application for “relief” as well as penalties for offenses and other local laws may be repealed as necessary to give the new local law, once it’s adopted, “full force and effect,” the resolution said.

“It’s going to be a quick turnaround to develop the law. Six months is going to go by quickly,” noted Cindrich, urging the village manager and the village’s attorney to hop on the necessary research and to “circulate laws pertaining to BESS projects to the Village Board for review” as soon as possible.

New Leaf's senior project developer, Corina Solis, released the following statement on Monday, Aug. 8,

"New Leaf Energy is committed to educating elected officials and the public about the benefits of BESS technology.

BESS technology is necessary for a clear energy future, as indicated by the New York State Public Service Commission, NYS Energy Research and Development Authority, the Climate Leadership and Community Protection Act, and others.

We understand Mount Kisco’s desire to learn more about the technology we are proposing and respect their due diligence process."

ZBA's Stand

The move follows a recent Zoning Board of Appeals decision on July 16 to uphold the village’s building inspector’s finding that BESS do not fit the standard of a public utility.

That came about because of an application from Massachusetts-based New Leaf Energy to construct a 20-megawatt Tesla Megapack 2XL BESS in the Light Manufacturing District (ML) off North Bedford Road.

Public utilities are an as-of-right use in ML zones.

(New Leaf bills itself as “one of the leading developers of renewable energy and energy storage projects in the United States -- both distributed generation and utility scale.”)

New Leaf's attorney, Robert Gaudioso of the law firm Snyder & Snyder, had argued that the BESS are indeed public utilities because, for one, they are “necessary” for the provision of electricity, particularly during peak-demand times.

(Privately owned BESS do not generate energy; they purchase electricity generated by utilities – Consolidated Edison in Mount Kisco’s case -- store it and then sell it back at a profit.)

Gaudioso had also pointed out that the state had, as far back as 2015, been calling for the increased use of renewable energy (solar, wind, and hydro), the production of more electricity, and more energy storage facilities.

In more recent times, Albany announced it was aiming for 70 percent carbon neutrality by 2030, which, he opined, made BESS crucial to reaching that goal.

One benefit would be the closing of expensive fossil fuel burning “peaker plants,” which are often located in disadvantaged communities, Gaudioso said.

Part of New Leaf’s application included a request for a use variance should its bid for a favorable interpretation of the village’s zoning laws fall through.

Different standards established by case law might define use variances for BESS more widely, Gaudioso said.

The ZBA vote relative to building inspector Peter Miley’s December, 2023 interpretation of the code was not unanimous.

The “yea” votes were Chairman Wayne Spector and members George Hoyt, Ken Goldberg, and Jacqueline Broth. Member Alex Roithmayr voted “nay,” explaining that he did believe that BESS are public utilities.

Pointing to environmental concerns, Spector emphasized that he, and no one he knows, is against “clean air.”

In 2019, the Climate Leadership and Community Protection Act set statewide goals for green energy and zero emissions.

Chief among them is obtaining 70 percent of the state’s electricity from wind, solar, hydroelectric, nuclear, and other sources by 2030.
Spector said that while “it’s clear that the future is most likely going to include significant BESS” in conjunction with that goal, he wasn’t convinced by New Leaf’s argument that they are “necessary for the provision of electricity today.”

The bottom line was that he didn’t believe that it was the ZBA’s “place to expand the code.”

“I think we’re stuck with a very, very narrow question here of code interpretation despite all the counter arguments as to the benefits of promoting green energy do provide for the community,” Spector said, adding that he was confident that “legislative frameworks” will eventually catch up to the technology.

“It’s not that this isn’t possibly a good thing or that it couldn’t potentially contribute to carbon neutrality at some point in time,” Goldberg said of the technology itself.

However, the ZBA’s focus was “narrow” and it had to base its decision “upon an interpretation of village code.”

Hoyt opined that the code’s drafters had amended it many times and have “had ample opportunity” to make (it) clear that battery storage was a public utility.

“They haven’t. In my view, I think that can be read reasonably by me not to include battery storage. I don’t think it’s a public utility,” he said.

Roithmayr dissented.

Telling Gaudioso that he thought he’d “done a very good job of outlining the necessity (of BESS), even going beyond into the future,” Roithmayr said he doubted that Con Edison would be “investing in this technology if it weren’t deemed necessary.”

“That’s why I think this is a public utility,” he added.

Broth likewise did not question the need for technology that supports the creation of carbon-neutral power.

In this particular case, however, all the BESS would be doing “is storing power that’s being created somewhere on the grid,” she said, adding: “This has nothing to do with this facility. I do not believe it’s necessary unless it’s actually tied to a power generating source and since it is not, I do not believe it’s a utility.”

Gaudioso pointed out that there’s nothing in the code’s definition of a public utility that “says it has to be tied to a power generating source.”

Electrical substations don’t generate their own power but they’re considered public utility facilities, he argued, adding: “So there’s no distinction here.”

The ZBA had been planning a field trip to the proposed BESS site before the moratorium was imposed. A public hearing on that part of the application was adjourned until its meeting in September.

Safety Concerns

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

Asking Gaudioso to talk about possible impacts on residences in the area should the BESS catch on fire, Broth had noted that there are several hundred homes located on the other side of North Bedford Road.

“What I can tell you is that we’re in a commercial zone in an office park next to a railroad track in a zone that permits other public utilities, which in theory could be power generating plants,” he responded, adding that the residences are “quite a distance” away and that an independent report hadn’t found any potential impacts, including on the soccer field which, he said, “is right there.”
Undeterred, Broth remarked: “No one anticipates bad things to happen.”

“We could say that about any type of use,” Gaudioso observed.

Broth then referenced a fire in a battery storage plant in Warwick (Orange County) that burned for several days, forcing the closure of nearby schools and drawing complaints from folks in the area about a nasty smell.

That particular facility was owned and operated by Convergent and the system it had -- known as the Centipede --was manufactured by Powin Energy Corp.

The proposed Mount Kisco BESS would be using a Tesla Megapack 2XL, Gaudioso reminded the board, adding that there are currently 5,000 battery energy storage systems in New York state and “the number of fires is exceedingly small as far as percentage goes.”

“The fear of the unknown on a handful of incidents on something’s that’s not quite the same as this doesn’t rise to the level of impact with respect to the use variance standard,” he said.

Gaudioso also said that New Leaf had submitted a report from third party, independent experts in the field, the Energy Safety Response Group (ESRG), that found that the BESS would “be completely safe in this location.”

“Anything beyond that would be speculation and wouldn’t be supported by any evidence on the record,” he said.

Outside of zoning requirements, the BESS would have to follow all building, electrical, and safety regulations.

Recently, Gov. Kathy Hochul announced updates to the New York Fire Code that contain draft language addressing the 15 recommendations made by the state’s Interagency Fire Safety Working Group.

The additions aim to improve coordination, safety, and emergency preparedness in the planning of BESS.

“Battery storage is a key element to building a green economy here in New York, and we have taken comprehensive efforts to ensure the proper safety standards are in place,” Hochul said on Friday, July 26. “With updating fire codes, we’re ensuring that New York’s clean energy transition is done safely and responsibly.”

Hochul convened the Working Group in 2023 following fires at facilities in Jefferson, Orange, and Suffolk counties.

According to the New York State Energy Research and Development Authority (NYSERDA) interested parties were invited to submit comments on the draft code language to the New York Department of State. The deadline is Sept. 24, 2024.

Proposed recommendations include requiring industry-funded, independent peer reviews for all BESS installations exceeding energy capacity thresholds established for lithium-ion batteries and that qualified personnel be available for dispatch within 15 minutes of a BESS fire and able to be on scene within four hours to provide support to first responders.

The group is also recommending that each BESS facility is equipped with an emergency response plan and that regular safety and compliance inspections be conducted.

Regional Rumblings

Other Hudson Valley communities are facing similar code challenges.

Carmel’s Town Board recently imposed a six-month moratorium on the review and approval of BESS applications.

The town’s residents and those just over the Putnam-Westchester border in Somers have been vigorously protesting plans by Virginia-based East Point Energy to construct a 116-megawatt battery farm about 100 feet from a residential neighborhood in the adjacent town of Somers.

Located on 94 acres off Miller Road in Mahopac, the facility would feed into the New York State Electric and Gas substation and transmission lines along Miller and Union Valley Roads.

The Somers Town Board recently voted to accept a petition for a zoning amendment that would contain a clear definition of “public utility.”

It also declared its intent to act as lead agency for SEQRA purposes. The resolution has been sent to the town and the county planning boards and interested agencies/parties for comment.

If adopted, the amendment to Section 170-3 of the Somers code would define public utilities as:

“Any person, firm, corporation or governmental agency duly authorized to furnish to the public, under governmental regulation, electricity, gas, water, sewage disposal and treatment, steam, cable, or communication service. This definition shall not bestow any special status or standing not already provided by state or federal law.”

The kicker?

“This definition does not include battery energy storage systems or similar facilities.”

North Salem is weighing a similar definition.

Both towns have been keeping a weather eye on the goings-on in Mount Kisco. They plan to hold public hearings but to date, neither has imposed a moratorium.

Bedford recently approved a six-month freeze on BESS applications.

Yorktown, Ossining, and Mount Pleasant already have BESS operating within their borders.

Meanwhile, state Sen. Pete Harckham (D-Lewisboro) has declared his full support for the Carmel moratorium and has promised to introduce legislation to ensure proper siting and BESS safety that will also guarantee that all local stakeholders are included in the development process.

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