Planners favor extending battery storage moratorium

By MARTIN WILBUR

The Mount Kisco Planning Board issued a recommendation asking for the Village Board to consider renewing the moratorium on battery energy storage systems rather than pass a local law prohibiting the facilities.

In guidance that was approved on July 22, the planners reached consensus that because of a lack of clarity on defining small-scale BESS units that could be used by individual homeowners, inconsistencies in how the new language would be integrated with the current solar law and the absence of standards from New York state regulating the units, it might be wiser from a legal standpoint to continue with a moratorium.

The Village Board’s proposal would revise a portion of Chapter 110 of the zoning code by excluding BESS facilities from the definition of a public utility.

Last summer, the Village Board approved a six-month moratorium, which was eventually extended to a year, after an application from New Leaf Energy for a large-scale BESS near the soccer field at 333 North Bedford Road took officials by surprise. The application was denied by the Zoning Board of Appeals, which upheld an interpretation by Building Inspector Peter Miley that BESS is not a public utility.

The moratorium is set to expire the last week of August. Questions regarding safety, including the potential for devastating fires ignited by the ion-lithium batteries, has been a chief concern voiced by officials.

Planning Board Chair Michael McGuirk said that if the Village Board’s proposal were to move forward, the municipality needs to be protected from legal challenges.

“My general feeling is if we are going to prohibit BESS as a village, I’d like it to be in a way that is upheld and doesn’t cost the village a lot of money,” McGuirk said.

Two other members, Andre Keating and William Phillips, said they would prefer the village continue with a moratorium rather than risking the possibility of litigation.

“By taking a novel definition of public utility would expose us to potential legal action from a potential applicant,” Keating said.

Phillips said part of the argument that Mount Kisco is densely populated cannot be effectively argued because four of the five boroughs of New York City have large-scale BESS and have an even greater concentration of people. 

A legitimate argument for the village would be that it is served by volunteer emergency services rather than a large professional agency such as the FDNY, he said.

Furthermore, there may soon be a time when the technology will improve and BESS facilities are safer without the likelihood of toxic fires that can burn for days. But for now, continuation of a moratorium is “the overall strategic direction we should go,” Phillips said.

“At the end of the day, if it proves to be a safe technology, etc., etc., we would have no objection, but we don’t know that,” he said.

However, Deputy Mayor Theresa Flora said a key reason for opting to revise the code to prohibit BESS is the likely period of time the Village Board would be left unprotected. Because the current moratorium is set to expire on or about Aug. 28, the village is required to pass a resolution for a new moratorium and would be unable to comply with noticing requirements to have that done before the end of August.

The current moratorium cannot go beyond one year after two three-month extensions following its approval.

Flora explained that the Village Board was anticipating the new state standards regulating BESS to have been released by now. Instead, she is hopeful that they will be unveiled by the end of the year. 

She said she appreciates the Planning Board’s sentiments, but they may have been partially basing it on the county Planning Board’s opinion. On July 7, county planners advised the village to reject revising the code to permanently ban BESS because it runs counter to the regional and state goals of converting to renewable energy.

“I think the ban is good until the new fire standards come out, I think it’s appropriate, and it can change,” Flora said. “We can write a local law and we can revisit it based on the new fire standards. So because of where we are in our moratorium and where the fire standards are to come out, we really don’t have much of a choice but to enact a local law. Otherwise, we leave ourselves open.”

Questions also arose about whether the village should include small-scale BESS that might be used by an individual homeowner or business. The legislation does not define what is small- or large-scale BESS, McGuirk responded, although some other communities define large-scale facilities as commercial units that can store at least 600 kilowatt hours of energy.

Board member Michael Bonforte said unless proven otherwise, small-scale units should be included.

“Is there a specific measurement or scale for what is called a small-use BESS, because that’s where there needs to be control also,” Bonforte said. “The potential dangers are just as apparent as a large-scale, to me.”

The Village Board is expected to vote on the revision at its Aug. 11 meeting.

Personal wireless revision

The board also commented on two other Village Board proposals — a requirement for personal wireless facility applicants to obtain a special permit and comply with all village codes and for a sign to be posted on nearly all properties that have a pending application of any kind.

McGuirk stated that he didn’t have any objections to the goals of the proposal related to wireless facilities but there were points of concern.

“All the applications for the wireless facilities in the proposed legislation have to go through the village engineer, which is not how we do things, and I don’t think that’s how our code calls for applications to be dealt with,” McGuirk said.

Other potential problems include empowering the Planning Board to revoke ZBA approval in certain circumstances, a power that it does not have, and expanding notification for a hearing, he said.

Language in those passages should be clarified before action is taken, and for the Village Board to work with the Planning Board and village staff to make changes.

Additionally, the board agreed there should be signage notification. Physical signage would be required for most Planning Board and ZBA applications at the property as well as special permits and zoning changes within three days of an application being accepted.

McGuirk suggested the revision might include many minor applications and result in a proliferation of signs.

“I’m just a little bit concerned there might be signs everywhere because I have no idea how many active matters we have,” he said. 

Worries about who is going to keep track of the signs led to village planning consultant, Jan Johannessen, to recommend limiting to more major applications, and potentially waiting until the scheduling of a public hearing, something that is done in multiple other communities.

The Village Board may entertain the two additional pieces of legislation at its next meeting on Aug. 11.