Proposed battery energy storage code draws questions, criticism at public hearing

A proposed code that would regulate the siting and operation of battery energy storage systems in the Town of Riverhead got its first public hearing Tuesday night at Town Hall.

The systems store energy for distribution at a later time. They are typically developed to increase the effectiveness of renewable energy production such as solar energy facilities. The systems allow energy from renewables, like solar and wind, to be stored and then released later to meet customer demand.

Currently, the town code does not regulate the siting and operation of the systems, a relatively new technology that makes utility-scale renewable energy more feasible.

“There is no zoning for this right now. It’s not a permitted use,” Town Attorney Erik Howard explained during the hearing. This is draft legislation… that regulates it as a use and designates what zoning use districts within the town it would be permitted,” Howard said.

The code “would allow private entities to submit an application to the planning department seeking to construct one of these and this basically sets forth all of the rules that they would have to follow in order to do that here,” Howard explained.

There are at least two applications for battery energy storage systems already filed with the planning department, although the use is not permitted by the town code. EC Battery Storage filed a site plan application in February for a 1.6-acre industrially zoned site at 104 Edwards Avenue in Calverton, adjacent to the railroad track. Riverhead Energy filed a site plan application in July for a 3.6-acre residentially zoned site at 95 Mill Road in Riverhead, just north of the railroad track.

The proposed code drafted by the town planning department largely mirrors a model code contained in the “Battery Energy Storage System Guidebook for Local Governments” published by the New York State Energy Research and Development Authority, known as NYSERDA. The authority has published a series of guidebooks for local government to assist with planning for, siting and regulating clean energy facilities, as the state moves to transition from fossil fuel sources to renewables.

Riverhead’s draft code would allow, by Town Board special permit, “Tier 2” (capacity greater than 600kWh) battery energy storage systems to be located only in the Industrial A, Industrial C, Planned Industrial Park, Agricultural Protection, and Residence A-80 zoning use districts.

The proposed code sets requirements for minimum lot sizes, property line setbacks, lot coverage and structure height for the new use, as well as “avoidance areas” where such systems would be prohibited, such as flood hazard zones and open space areas.

The code would also require the systems to adhere to all requirements for such systems as set forth in the New York State Uniform Fire Prevention and Building Code and the New York State Energy Conservation Construction Code.

“Most of this code is about safety,” said Planner Matt Charters, who worked on the draft legislation with Code Revision Committee Town Board liaisons Tim Hubbard and Ken Rothwell.

Charters outlined the proposed code’s provisions. The town has initiated coordinated review required by the State Environmental Quality Review Act and is still in the 30-day comment period for involved agencies which might seek “lead agency” status for review of the proposed code pursuant to the state law.

In comments during the hearing, Rothwell focused on the value of battery energy storage in disaster preparedness rather than as a necessary component for the success of clean energy systems. The councilman described the proposal as “just the first of baby steps” aimed at emergency preparedness in the event of a “mass catastrophe” like a major hurricane that causes widespread power outages.

“Part of the beginning of writing this legislation was that, should this town ever experience — the East End of Long Island, the last major hurricane, Hurricane Gloria, if something of that magnitude should come through this town again. It has been many, many years since we’ve had a hurricane,” Rothwell said.

“And so, in only baby steps, this doesn’t achieve everything that we want. But it’s beginning to be able to take us in a position where if we lost overall outage due to a massive hurricane, that battery power storage could somehow begin to implement, you know, different sections of the grid could be shut down. And we can be able to maintain power to different operating shelter facilities, to the hospital, emergency response centers and things of that nature, our fire departments, police departments,” Rothwell said.

Supervisor Yvette Aguiar said most government agencies and “all critical entities, including the hospital” have “huge” on-site emergency generators, as required, she said, by FEMA and the Department of Homeland Security.

“But it’s — this is again, as someone’s mentioned, this is just on zoning,” Aguiar said. “It’s good to store some energy, where it may be needed. Just like a hurricane directly placed where you didn’t plan to have it. So it’s — it’s a simple code. It’s not anything that complicated,” she said.

‘You are poised to make the same mistake again’

Barbara Blass of Jamesport, a member of the town’s Environmental Advisory Committee, former Town Board member and former Planning Board member and chairperson, testified that she supports adopting a code to provide for battery storage systems in the Town of Riverhead but does not support the adoption of the proposed code because it was drafted without proper planning.

NYSERDA’s guidebooks provide step-by-step instructions for municipalities on how to adopt legally defensible codes and land use plans addressing clean energy, Blass said.

“It advises local governments to begin the process with a planning initiative because New York State’s zoning and planning enabling acts require land-use regulations to be ‘in accordance with a comprehensive plan’ or a ‘well-considered plan,” and Riverhead Town doesn’t have one.

The town’s existing comprehensive plan, adopted in 2003, does not address renewable energy at all.

“Representatives of the Environmental Advisory Committee and others are on record requesting that our comprehensive plan update include a clean energy chapter with goals, policies and implementation strategies,” Blass said. “As we all know, the plan update process is currently stalled and we have been told that no work on the subject was done to date,” she said.

Riverhead initiated a comprehensive plan update in late 2019 with the hiring of planning consultants AKRF. The update was delayed by the COVID-19 pandemic and when goals of amended work schedules were not met, the Town Board last month opted to terminate the AKRF contract and seek a new consulting firm. Another firm has not yet been hired.

“The (NYSERDA) guidebook cautions that if a locality adopts new land-use regulations without adopting or prior to updating a comprehensive plan, and these regulations were subject to legal challenge or review, the courts will examine all of the municipality’s land-use policies and actions,” Blass told the board. “And here’s where Riverhead runs into trouble.”

Blass pointed to the 2014 adoption of the town’s solar code in 2014 as an example of a code change that should have been preceded by a planning effort and “extensive environmental review” to support its adoption.

“But there was no planning study, no empirical information, no analysis of potential impacts, no understanding of how much the Calverton community could absorb, no idea of how hundreds of acres of solar panels might change the character of the community, no quantification of agricultural soils impacted,” Blass said.

“So what happened? In October of 2021, you had to adopt a moratorium to put the brakes on further applications until the comprehensive plan update gathered and analyzed the necessary planning information to guide you in related future land use decisions,” Blass said.

“And here you are, ready to do it again,” she said.

“There is absolutely no planning study, no map, no information on how many acres of land are eligible for such development, why these particular zoning use districts which include the Agricultural Protection Zone and Residence RA-80, were chosen, no information on where the potential grid connection points are, how many high voltage switchyards could we potentially have and their visual impacts,” Blass said.

“You are poised to make the same mistake again,” she told the board.

Wading River Civic Association President Sid Bail said he agrees with the points made by Blass.

“Another issue is noise,” Bail said. He noted that discussion at the work session July 28 indicated that noise would not be an issue, that it would generate as much noise as an air conditioner. The battery storage facility mentioned in East Hampton is a 5-megawatt facility enclosed in a building and not comparable to the large-scale facility like the 100-megawatt facility currently proposed by Hexagon Energy, Bail said. That facility also includes a switchyard, a new technology, he said, which “essentially functions as a substation.”

Bail said any battery code that is eventually developed by the town has to examine the new technology.

“And until then…it’s not a permitted use. I hope it doesn’t become a permitted use until all questions are answered about utility-scale Tier Two battery technologies,” Bail said.

Reeves Park resident Mike Foley said the town needs battery energy storage facilities to be brought into town in a comprehensive way, “not in a piecemeal, willy-nilly way.”

Foley asked how the Hexagon Energy application, which is on the Planning Board’s agenda for discussion today, can be considered for a site that is not in any of the zoning districts specified in the proposed code.

The town attorney told Foley he would have to bring that up to the planning board because the hearing was on a proposed code and not relative to any specific application.

Hexagon Energy/Riverhead has, along with its site plan application, filed an application with the Zoning Board of Appeals for a special exception use to change the use of the residentially zoned site on Mill Road from one nonconforming use to another nonconforming use. While the Hexagon site is zoned RB-40, it has been in commercial use since before the adoption of the current zoning.

Building and Planning Administrator Jefferson Murphree on July 22 issued a denial letter on the Hexagon site plan application because the battery energy storage use is not an allowed use in the RB-40 zoning use district.

The application was put on the Planning Board’s Aug. 18 agenda for discussion purposes only, Murphree said Tuesday, to educate the public and the board members about the use.