Southold Board Mulls Battery Moratorium
Pictured Above: A typical BESS storage container module
While members of the public turned out Tuesday evening mostly in favor of a one-year proposed moratorium on Battery Energy Storage Systems in Southold Town, some on the Town Board are on the fence about whether a moratorium is necessary.
One of these storage systems, which are known in the industry as BESS, was granted a special exception use permit by the town’s Zoning Board of Appeals in 2021, though many on the Zoning Board and the Town Board now believe the ZBA was then acting on bad legal advice.
But with three more proposals in the works for battery storage projects on the North Fork — one recently proposed by Key Capture Energy on Oregon Road in Cutchogue has garnered the most attention but others are being proposed by Hawkeye Energy and Blue Wave Solar — some in town government are concerned the two-year-old ZBA decision could set a bad precedent for future BESS development here.
These storage systems use lithium ion batteries, which have lately come under scrutiny due to the risk of intense and difficult to suppress fires when this type of battery overheats.
Acting on guidance from the New York State Energy Research Development Agency (NYSERDA), the Town Board is planning to convene a Battery Energy Storage Task Force to develop code regarding siting and safety considerations before considering future BESS systems. The one-year moratorium is proposed to give the Task Force time to complete that task.
The board also agreed Tuesday to advertise their search for members of the Task Force through April 7.
“I support the moratorium. Energy is complicated, and energy siting is really complicated,” said Gwynn Schroeder of Cutchogue, who is running on the Democratic ticket for the Town Board, at the public hearing. “There are a lot of moving parts and factors, and you need a lot of time to fully understand the implications and do your due diligence to ensure the safety of residents and protect the environment and our first responders. Having said that, we need these facilities. If we are going to transition to clean energy, we need to store energy.”
Cutchogue Civic Association President Dave Bergen agreed, adding that the board of the Cutchogue Civic Association supports the moratorium.
Doris McGreevy of Mattituck laid out a series of fire safety measures needed for BESS systems that she had learned from a recent presentation for the City of New York Fire Department, including the need for gas and fire detection and prevention systems. She urged the board to hire an independent consultant with expertise in this matter rather than rely on volunteers for the Task Force.
“Once the moratorium is in place, we might have to go out to a consultant,” said Town Supervisor Scott Russell. “I don’t want to rely on Key Capture Energy, or even, frankly, NYSERDA… That will be the first conversation we have as soon as we get that committee in place.”
Anne Murray, speaking for the North Fork Environmental Council, said residents are lucky the Greenport storage facility, near wetlands in the preserved area of Pipes Cove, has not been built. She cited a recent fatal vehicle fire and accident in East Marion, where the fire department used 11,000 gallons of water in an attempt to suppress the fire enough to rescue the victims, as a wake-up call for the North Fork to enact better codes regarding battery energy.
“Do the moratorium, for safety if nothing else,” she said.
Kevin O’Mara of Cutchogue, who has gathered 1,100 signatures on a petition in favor of the moratorium and formed a group called Friends of Oregon Road, said he wants energy developers to know Southold is taking its local control of siting and safety issues seriously.
Key Capture Energy Senior Manager of Development Phil Denara, who had been in charge of presenting the Oregon Road project to Southold’s land use boards, said his company has completed several technical reports, including hazard mitigation and emergency response plans for the fire department. He said the company would make those reports available for the town.
“I fully understand that you want to leverage your own resources. We do have a biased view — we are invested,” he said. “Those documents will be submitted on the record and I think they should be read as part of your review. It will be helpful.”
“It’s great to hear people acknowledging the need for storage,” he added.
Southold Zoning Board Chairwoman Leslie Weisman read a letter from all five members of the Zoning Board in favor of the moratorium.
Without the moratorium, she read, “the ZBA will be required to hear BESS applications on a piecemeal basis.”
She added that, when the board initially approved the Greenport battery storage plan, they did so “with the understanding that the Planning Board, the LWRP (Local Waterfront Revitalization Plan) coordinator and New York State supported BESS facilities as a green technology to replace outdated peaker plants.”
“We have a number of problems, from a legal sense,” said ZBA member Rob Lehnert. “We passed one of these facilities a few years ago. Anyone else can come use that as precedent. We were acting on poor legal advice that was in direct contradiction with the New York State code. We don’t make the law. We interpret it. We need you to help give us something to interpret.”
The 2021 decision was based on the board’s legal interpretation of the Greenport facility as a “public utility,” which is allowed as a special exception use in industrial zoning districts. Southold’s new town attorney, Paul DeChance, says they shouldn’t be considered public utilities — to date, BESS facilities have been proposed by private companies that sell their electricity to a public utility. The Southold Town Code is currently silent on Battery Energy Storage Ssytems.
“The Chief Building Inspector declared this a non-use because it’s not in our code,” said Councilwoman Sarah Nappa. “If the moratorium would not pass, it would still not go through the process, because there is no process.”
“To me, the moratorium is symbolic,” she said. “We would be in the same position whether it’s in effect or not. Whether or not the moratorium goes through or not, we’re still going to do our due diligence. Don’t take my opinion that we don’t need a moratorium as I want these and want to put them in. Anybody can’t come in and, as of right, get approval for this now anyway.”
“The problem is, we have one approved already, and that has exposed us legally,” said Town Supervisor Scott Russell. “Without the shield of a moratorium, it exposes us to legal action.”
Mr. DeChance and Ms. Weisman said applicants could still come to the Zoning Board looking for a use variance, which would be a much more difficult legal hurdle for them to face than the “special exception use” permit for a public utility.
Councilwoman Jill Doherty said she has been weighing the possibility that the moratorium process would cost taxpayers money in filing fees against the need to protect the town.
“That’s not going to be much compared to the losses if somebody wins in court,” said Ms. Murray.
“I highly agree with the moratorium. Symbolism is ok when it garners trust in government,” said resident Carol Brown. “A lot of people want the moratorium so they feel they can trust you.”
She also urged the Town Board to invest in a staff environmental analyst.
“We need experienced people, or departments, in this town to look at the whole picture,” she said. “We are not looking at the forest. We’re looking at each individual tree.”
“It is my intent to put as many moratoriums on as many issues as I can between now and January, 2, 2024,” joked Town Supervisor Scott Russell, who is not seeking re-election this year and has often publicly mused about having a future career as a stand up comic.
The board closed the live public hearing Tuesday night, but left it open for 30 days for written comments, in anticipation of the Suffolk County Planning Commission and the Southold Town Planning Board weighing in on the proposal.