Southold versus Riverhead: a tale of two towns

Southold Supervisor Scott Russell is spot-on with his analysis of how his town should proceed to adopt a code regulating battery energy storage systems — including implementing a moratorium while the necessary planning and zoning work is done.

Russell’s well-reasoned, comprehensive press release details the planning that must be done, the analysis needed, why it’s needed, and how a moratorium is the only way to make sure town officials have the opportunity to do their job and get this right.

The Southold supervisor advocates following the guidance provided by the the New York State Energy Research and Development Authority (NYSERDA).

NYSERDA published a battery energy storage system guidebook for local governments in December 2020. Note that NYSERDA is an advocate of renewable energy, such as solar and wind power, as well as the battery energy storage systems (BESS) needed to make renewable energy sustainable. The battery systems store energy produced by solar and wind generators at times when demand is low for later use when demand is high. So they are critical to a successful transition from fossil fuels to renewables.

In Riverhead, there’s no indication that town officials have even looked at the NYSERDA guidebook written to help them handle siting and regulation of battery storage systems. If they have, they made a decision not to follow the planning and citing process spelled out in the guidebook. Here’s the process, according to the NYSERDA guidebook for local governments (page 6):

1. Adopt a resolution or policy statement that outlines a strategy for municipal-wide BESS development.
2. Appoint a task force that represents all interested stakeholders. NYSERDA identifies stakeholders as residents, businesses, interested nonprofit organizations, the BESS industry, utilities, and relevant municipal officials and staff. The task force is charged with preparing the town’s action plan for adopting or amending a comprehensive plan to include BESS planning goals and actions, and developing local laws and/or other regulations to ensure the orderly development of battery energy storage system projects.
3. Charge the Task Force with conducting meetings on a community-wide basis to involve all key stakeholders, gather all available ideas, identify divergent groups and views, and secure support from the entire community. The Task Force should also conduct studies and determine whether existing policies, plans, and land use regulations require amendments to remove barriers to and facilitate BESS development goals.
4. Establish a training program for local staff and land use boards. Municipalities are encouraged to utilize State and Federal technical assistance and grants for training programs when available.
5. Partner with adjacent communities to adopt compatible policies, plan components, and zoning provisions for battery energy storage system projects. County or regional planning agencies may also advise participating local governments on locally addressing these issues.

Instead, here’s what Riverhead Town did:

Town officials met privately with BESS developers and their consultants and lawyers. These meetings took place in the planning department and in the closed-door meetings with two Town Board members that are held mostly every week, where developers and planning department staff air plans for big projects. These meetings are not open to the press or public. Councilman Tim Hubbard, during an April 28 work session discussion with planning staff referenced statements made by developers “at one of the pre-submission planning meetings” which he said was attended by the town’s top planning official, Jefferson Murphree.

Over time, there were various references in public meetings to developer interest in siting BESS facilities in Riverhead.

For example, Murphree, during the work session of Aug. 13, 2020 told the board, “Right now, we’ve had a number of people inquire about their battery storage. Those are not currently permitted in our code. And I’ve been putting those applicants off saying that will be reviewed as part of our comprehensive plan update.”

Yes, and we all know how that went.

Somewhere along the line, someone directed town planner Matt Charters to draft a BESS code. Charters presented the first draft to the Town Board at its April 28, 2022 work session. Charters said at the time that “inquiries on this kind of stuff are coming in frequently, so we want to make sure we have all the tools to review them properly and make sure they end up in the right place.” (We later learned there were pre-submission planning meetings with two BESS developers who later filed applications. One such meeting took place in the fall of 2021 and the other in winter 2022. The April 28 work session was the first time there was a full public discussion of a BESS code.)

Charters said at that work session the draft BESS code was based on NYSERDA’s model code for specifications and safety requirements. The draft code also identified five zoning districts where utility-scale BESS facilities would be allowed by special permit of the Town Board. He also presented maps to the board depicting where BESS facilities could be located based on proximity to existing LIPA substations. BESS facilities must be located near such substations.

Charters presented a second draft to the Town Board at its July 28 work session, when the board agreed to schedule the code for a public hearing.

Note: Planner Matt Charters is not a decision-maker in this process and we do not disparage his effort or work product. How he spends his time is determined by his department head, who is in turn supervised by the Town Board.

At that point there had been no public disclosure that two developers had already filed applications to site BESS facilities in Riverhead Town. Riverhead Energy (Hexagon Energy) had applied to site a 100 MW BESS facility at 87 Mill Road, residentially zoned property adjacent to the Glenwood Village manufactured home park. Edwards Calverton Battery Storage (Rhynland Energy) had applied to site a 60 MW BESS facility on an industrially zoned site on Edwards Avenue, adjacent to a LIPA substation.

Murphree, as the town’s zoning officer, had issued denial letters to both applicants in late July, according to town records later obtained through Freedom of Information Law requests. The denial letters state the the proposed use is not a use permitted by the town zoning code and advise the applicants that they can seek variances from the Zoning Board of Appeals.

It’s not clear whether as of the July 28 work session, any Town Board members knew that those applications had already been filed, reviewed, processed and denied by the planning department.

Murphree brought representatives of Hexagon Energy, their engineers and attorney to the Planning Board on Aug. 18, where they presented a fully engineered site plan to the board. Murphree said he scheduled the presentation “to educate the board and the public about battery energy storage in general.”

This would be a good time to note that NYSERDA has a wealth of online educational materials, including a series of video webinars, for that purpose — if indeed that was really the purpose of that presentation.

The Aug. 18 Planning Board meeting was the first public disclosure of the Hexagon proposal and the Edwards Avenue Calverton proposal had not yet been mentioned. Two days before that, the Town Board held a public hearing on the proposed BESS code — without mention of the two applications that had already been reviewed by town officials.

Riverhead Supervisor Yvette Aguiar later said she was “appalled” that the Hexagon application was presented to the Planning Board though the use is not yet allowed by the town code. The presentation, made it “crystal clear what was being delivered to the board and the residents was a pre-submission planning application, with many of the required documents, studies, certified documents,” Aguiar said in an interview. She called the presentation a “grave misrepresentation of public trust.”

At the board’s next work session, in response to questions from Aguiar, Murphree acknowledged the second BESS application had also been reviewed and processed.

The Town Board held a public hearing on the draft code Aug. 16, and, after adding dimensional requirements for BESS facilities to a subsequent draft, held a second public hearing on the code Dec. 20. At this point, we don’t know when the board will begin the mandatory review required by the State Environmental Quality Review Act (SEQRA) in advance of the code being put up for a vote to adopt it. Nothing about it is on the agenda released for the Jan. 18 meeting.

The Town Board has not discussed a moratorium on BESS development, but we know that a majority of the board, which last month shot down a very limited moratorium on industrial development in three zoning districts in Calverton, has no appetite for moratoria. Three board members who voted against that moratorium cited possible impacts on tax base, the property rights of commercial land owners and a belief that the board should not stand in the way of “progress.”

The board has never had a public discussion of the NYSERDA guidebook for local government or its guidance for local officials as they craft codes to allow BESS facilities in their jurisdictions. There has not been any mention of any task force, action plan or any public planning process. And there’s been no public discussion of obtaining NYSERDA’s free technical guidance for local officials to accomplish this task.

No, this is Riverhead, after all, where things get discussed in private, closed-door meetings and when everything’s arranged to the satisfaction of officials — and, it seems, to the satisfaction of the developers who participate in those meetings — the finished product is trotted out for a dog-and-pony show at a public meeting.

This is Riverhead, where land use and planning decisions are driven by developers and their paid consultants and attorneys.

No wonder members of the public who are paying attention to these shenanigans are up in arms.

That’s why reading Supervisor Scott Russell’s press release Thursday made us as sad as it made us angry. Rational review and action in the public interest is how things should be and could be. You just have to take a drive through Southold to understand how it makes a real difference.

We believe Riverhead residents are entitled to good government as much as anyone else.

Then there’s that old adage: “People get the government they deserve..”

We strongly disagree. The people of Riverhead don’t deserve this. We deserve better — much, much better.