Riverhead Town Board unanimously approves law to allow battery energy storage facilities

The Riverhead Town Board voted unanimously Tuesday to adopt a battery energy storage code that will allow both residential and utility-scale battery energy storage systems in Riverhead. 

The vote came after board members heard again from several community members urging them to defer action on the battery energy storage code until its impacts can be assessed through the comprehensive planning process, which is just getting restarted with a new planning consulting firm hired by the town in January.

Board members, who have sat through two contentious public hearings on the proposed code — which underwent revisions after the first hearing — were unmoved, and proceeded with the adoption. But first, they listened to comments and briefly interacted with residents during the period set aside at every meeting for public comments on resolutions.

Sarah Yackal, a principal in BFJ Planning, the consulting firm hired to complete the comprehensive plan process, attended Tuesday’s meeting via Zoom, to answer questions from the public, board members said. 

Yackal was also the planner who completed parts two and three of the Full Environmental Assessment Form (FEAF) required for the town board to make a determination of nonsignificance and adopt the new code without an environmental impact study. The board signed a separate contract with BFJ in January to complete the FEAF for the battery energy storage code and issue a determination of nonsignificance, allowing the adoption to proceed. Assessing energy storage technology along with other sustainable energy alternatives such as commercial solar energy facilities and wind power, is part of the planning firm’s scope of work for the comprehensive plan update and was incorporated into the town’s $399,000 contract with BFJ.

MORE COVERAGE: Adoption of Battery Energy Storage code is on Riverhead Town Board’s agenda Tuesday

The new code establishes battery energy storage systems (BESS) as an allowed use in Riverhead Town, with “tier-1” small-scale systems that have an energy capacity of up to 600 kWh — systems designed to serve individual homes and businesses — allowed in all zoning districts and larger “tier-2” systems that have an energy capacity of greater than 600 kWh — typically, utility-scale systems — allowed by Town Board special permit in several zoning districts in Riverhead: Industrial A, Industrial C, Planned Industrial Park, Agricultural Protection Zone and Residence A-80. The proposed code requires all utility-scale BESS facilities on residentially zoned property to be located within 1,000 feet of “an existing LIPA substation.” It also spells out minimum lot sizes, maximum lot coverage, maximum structure height and minimum setbacks, as well as screening requirements.

Residents previously asked the board to enact a moratorium on new industrial development until the comprehensive plan update is completed, but a majority of board members declined. 

Residents have repeatedly asked the board, as they did again on Tuesday, to defer action on the code until the comprehensive plan process could examine impacts of the new use, arguing that the town does not yet fully understand exactly where tie-2 facilities might actually be able to locate. 

MORE COVERAGE: Riverhead considers adding battery energy storage systems to town code, as residents question safety, urge in-depth study

The new code allows tier-2 facilities in the Agricultural Protection Zone, a zoning district that takes in hundreds of acres of vacant properties south of Sound Avenue and north of Route 25. The new code’s requirement for proximity to an existing LIPA substation does not apply in the APZ district, but proximity to a LIPA substation is important from a practical standpoint, since the BESS facility will need to buy power from a supplier via the existing electric grid and sell it back also via the existing grid. 

Calverton resident Claudette Bianco asked whether LIPA could build a substation wherever it decides to. “Don’t they have that authority? Can’t that happen in the future?” she asked.

Yackal replied that “there is always potential that LIPA can build new substations.” But, she said, they are subject to review under the State Environmental Quality Review Act. “The town would be an involved agency and would have a role in that decision,” she said. “We don’t know of any that are planned,” Yackal said.

Jamesport resident Barbara Blass, who opposed enactment of the new code separate from the comprehensive planning process, told board members that LIPA’s capital project plan already identifies Doctors Path in the Town of Riverhead as a location for a future substation. A 2021 LIPA presentation on the utility company’s “Transmission and Distribution Planning” for the New York’s Climate Leadership Community Protection Act” lists a new Doctors Path Substation, as a potential distribution project. The new substation has a proposed in-service date of 2029 and would have an estimated cost of $22.7 million to develop, according to the document. Briefing-on-Grid-Planning-Climate-Ladership-Community-Protection-Act

Town planner Greg Bergman said that if LIPA wanted to build a substation in town, the town code requires it to obtain a special permit from the Town Board. 

Supervisor Yvette Aguiar noted that the special permit approval process requires a public hearing. “That’s democracy at its best,” she said.

Blass questioned whether LIPA, as a state authority, would be subject to local land use regulations, citing the “Monroe test”  for determining whether the actions of governmental units are exempt from local zoning regulations, a test pronounced by the state’s highest court in a 1988 decision. 

Wading River resident Sid Bail, longtime president of the Wading River Civic Association and a member of the town’s comprehensive plan update steering committee, told the board he believes there will be a lot of pressure to build battery energy storage facilities. New York State has recently doubled its goal for the amount of battery energy storage capacity it hopes to achieve by 2030.

“There’s a tremendous amount of money to be made,” Bail said. “Getting one of these things started, you sign a 20-year power purchase agreement with LIPA and that’s like gold,” he said. “That’s why they can be so generous and helpful to the communities that they’re in. They have lots of money to spread around,” he said. Bail asked whether anyone in town government has been approached by another company besides the two developers that filed applications last year to build BESS facilities. 

Board members answered that no other companies have approached the town, but Kern acknowledged that there will be “a proliferation” of the facilities all over the island. Rothwell added there would be a proliferation all over the state.  

Bail said the relatively inexpensive real estate available in Riverhead makes it a prime target for proposals intended to serve the eastern Long Island region.

Criticism from Bianco, who said the board was “jumping the gun,” as well as Kathy McGraw of Northville, Phil Barbato of Jamesport and others stating that the town was rushing to adopt the new code, made Council Member Ken Rothwell bristle. 

“We’ve already had two public hearings on this topic,” he said.  “There’s no haste here. It’s been in the works for two years,” Rothwell said.

“It’s not like we’re talking this like it came yesterday, we want to pass it,” Council Member Bob Kern said. “We’ve done a lot of research. We’ve brought experts down here to address the public,” he said, referring specifically to a fire safety consultant who testified at the Town Board’s Dec. 20 public hearing on behalf of a company seeking to site a battery energy storage facility on Mill Road, and a representative of the New York State Energy Research and Development Agency (NYSERDA) whom Kern invited to meet with the Town Board during a work session on Jan. 26.

“The environmental impact study that was done and completed was more extensive” then including the code as part of the comprehensive plan process, Rothwell said, apparently referring to the town retaining a planning consultant to complete the Full Environmental Assessment Form.  

“It’s more in-depth,” Rothwell said. “And by us putting our local zoning and rules and regulations here, it allows us to direct the narrative of what’s taking place in the town and not sit idle and wait for it to be done by the ZBA,” he said. The council member was apparently referring to the ability of the Zoning Board of Appeals to grant a special exception use, something that two battery energy storage developers were discussing with town officials last year. 

Other residents have questioned the safety of battery energy storage facilities, pointing to a fire that burned for days at a BESS facility in Arizona last spring and an explosion at one facility in 2019. 

Planner Matt Charters, who authored the town’s new code, said much of New York’s fire code relating to battery energy storage facilities was revised after the Arizona explosion to address safety issues that incident underscored.  New York’s Uniform Fire Prevention and Building Codes were amended in 2020 to address energy storage systems safety. See: New York State Energy Research and Development Agency Guidebook for Local Governments.

“So they learned from that fire about what to do and how to mitigate,” Charters said.

Meredith Ritter of Foxwood Village in Calverton told the board Tuesday’s meeting felt “like deja vu.” 

“Here we are again on an afternoon in Town Hall for a Town Board meeting discussing something that clearly impacts the population of Calverton and Riverhead during a week when many people are preparing for the holiest days and holidays coming up,” Ritter said, alluding to the BESS code public hearing held the Tuesday before Christmas last year. In addition, she said, a lot of people have to work in the afternoon and can’t be here.

Board members expressed satisfaction with the amount of time and opportunity the public has had to review the code, the environmental assessment documents and to express their opinions to the board before Tuesday’s vote.

Prior to casting his vote, Council Member Tim Hubbard said he previously made a motion to table a resolution adopting the BESS code because of demands from the public that the code be addressed through the comp plan.

“Well it has been addressed through the comp plan,” Hubbard said Tuesday. He said BFJ’s Yackal indicated last week that the review that’s been done on the code was at least as much as what would have been done if it had been assessed as part of the comp plan update.

“This is a new wave, green energy type of system that is becoming more and more popular,” Hubbard said.  “Everybody refers to fire and everything else. There’s been one fire. It was an Arizona and it was a different system,” he said. “If anything, New York State has the most stringent laws regarding the BESS systems. And they have learned a lot from both that fire in Arizona on a different type system, but New York’s rules and regs for maintaining and overseeing these systems is second to none,” he said. Those will be requirements of any special permit granted for a BESS system, he said. 

Hubbard said any company that comes to town wanting to develop a BESS system will be required by the Town Board to “foot the bill” for training and equipment local firefighters need to fight battery fires should they occur. 

“BFJ has, in my mind, thoroughly examined this,” Hubbard said.  “I’m satisfied with the answers they gave us. The public asked for this. We did it. we waylaid this. There is no rush, as everybody thinks is rushed. It started a couple of years back. So there is no rush,” Hubbard said. 

He said people should not worry about too many of these facilities being built in Riverhead.  

“At the end of the day, there is a saturation point for these systems. It’s not like we’re going to have 40 of these systems in the town of Riverhead,” Hubbard said. “It just doesn’t work that way. There’s no need for limitations as to the number of systems that actually could or would come into town. There’s only so much energy they can capture, hold onto and then resell,” he said. “The more systems that are built, the less demand there will be because it lowers the price of the energy they’re going to sell. So we’re not going to get inundated with BESS systems as some people think is going to happen,” Hubbard said.