After having twice extended its moratorium on battery energy storage systems, aka BESS, Mount Kisco has finally crafted proposed changes to its local zoning code that would offer a more permanent solution if adopted.
The proposed local law seeks to better define the term “public utility” and would declare that not only are BESS not public utilities under the village code, they would be prohibited throughout the entire village/town.
If adopted, it would also delete “inconsistent provisions relating to battery storage associated with solar energy systems,” according to the official notice.
(The current moratorium expires on Aug. 29.)
The Village Board voted on June 30 to set a public hearing on the proposed law for 7 p.m. Monday, July 14, in the Frank J. DiMicco Board Room, Village Hall, 104 Main St., Mount Kisco, N.Y.
Last year, New Leaf Energy, a renewable energy developer based in Massachusetts, unveiled plans to build a 20-megawatt Tesla Megapack BESS at the Diamond Properties commercial complex at 333 North Bedford Road.
It had argued that the proposed facility met the village zoning code’s definition of a public utility.
But Building Inspector Peter Miley nixed that. New Leaf took its case to the village’s Zoning Board of Appeals, which upheld Miley’s determination, saying that the applicant’s interpretation was too wide-ranging to consider.
In 2023, a series of BESS fires – in Orange, Jefferson, and Suffolk counties -- sparked safety concerns and the establishment by Gov. Kathy Hochul of an Inter-Agency Fire Safety Working Group to investigate the incidents and recommend safety measures.
According to Mount Kisco’s proposed resolution, the regulations are “designed to protect the health, safety, and welfare of village residents” and are consistent with the village’s 2019 Comprehensive Plan, which aims to “to conserve natural areas, promote commercial vitality downtown, preserve neighborhoods, and address housing needs.”
Furthermore, it read, the board finds that “given the current state of technology of lithium-ion batteries at this time” that the siting of large-scale BESS “within its boundaries would jeopardize and put at substantial risk the health, safety, and welfare of village residents” and would not promote or further the goals set in the Comprehensive Plan.
Because the law would affect more than 25 acres of land, it’s considered a “Type 1” action under the State Environmental Quality Review Act (SEQRA), according to its planner Jan K. Johannessen.
This means that, as lead agency, the board must conduct a coordinated review and prepare an Environmental Assessment Form (EAF).
The proposed law will be referred to the Westchester County Planning Board and the village’s Planning Board for input. Neighboring towns such as Bedford and New Castle will be notified, as will the state Department of Transportation (NYSDOT).
Miley, who was part of the team working on the issue, noted at the June meeting that an “extensive amount of work” had gone into looking for places or locations for BESS.
“At this time, we’re unable to identify a spot that would make sense, be safe, and not be in close proximity to environmentally sensitive areas” within the village’s approximately three square miles, he said.
The draft resolution also made note of the “real potential” for fires at BESS facilities – especially those that use lithium-ion batteries.
It refers to a May 27 letter from Mount Kisco Fire Chief Matthew R. Hollis highlighting the “unique fire safety challenges” associated with BESS “including thermal runaway, toxic gas emissions, re-ignition risk and access and suppression challenges.”
Hollis contended that his “fully volunteer” department “is not equipped or trained to respond to incidents involving a BESS facility” at present and “would have no ability to combat” such a emergency “regardless of future equipment or training.”
“The potential problem would exceed the capability and manpower available, and no change in this fact is anticipated for the foreseeable future,” the resolution stated.
Not all solar power arrays or systems include battery energy storage systems.
However, those that already exist within the village’s border would be “grandfathered,” according to Village Manager Edward Brancati.
According to the proposed law, a public utility facility is defined as “a facility, other than a personal wireless service facility or a battery energy storage system, for the provision of public utility services, including facilities constructed, altered or maintained by utility corporations, either public or privately owned, or government agencies, necessary for the provision of electricity, gas, steam, heat, communication, water, sewage collection or other such service to the general public.”
It also lays out what a battery is and what BESS consist of, namely: electrochemical storage batteries, battery chargers, controls, power conditioning systems and associated mechanical and electrical equipment, assembled together, capable of storing energy in order to supply electrical energy at a future time.”
(Excluded are stand-alone twelve-volt car batteries or electric motor vehicles.)
“Battery energy storage systems are not an allowed use in any district in the village,” the proposed law emphasizes.
If adopted, it becomes effective upon filing with the secretary of state.
The village, which is simultaneously tackling the issue of wireless service facilities, is proposing a local law that would amend its zoning regulations.
A public hearing on same is also set for 7 p.m. Monday, July 14, at Village Hall.
The “purpose and legislative intent” of the proposed wireless law is “to promote the health, safety, and general welfare” of residents, to preserve its character, and to set standards “for the safe provision, monitoring, development, replacement, and removal of cell towers and other personal wireless service facilities consistent with applicable federal, state and local laws and regulations.”
While municipalities are not legally allowed to unilaterally ban the siting of wireless facilities, they do have certain protections under the federal Telecommunications Act of 1996, according to Andrew J. Campanelli, the attorney advising the village in this matter.
Mayor J. Michael Cindrich read from a lengthy statement at the June 30 meeting in which he noted that the act “severely” limits the village’s “home rule authority and environmental review of health issues.”
Pointing out that the government and its agencies continue “to debate, litigate, and discuss the issues,” Mount Kisco is concerned that telecommunications facilities could be hazardous to the health, safety and welfare of residents and the environment.
Claiming that wireless facilities “have had an adverse visual impact on the community, its character, and thus the quality of life in the village,” Cindrich noted that Mount Kisco has “four significant telecommunications systems with multiple carriers, some of which are inconsistent with village land use policies and zoning.”
Mount Kisco, “a small community with limited space” has more telecommunication facilities per square mile “than most other communities in Westchester County,” Cindrich said.
“I’d like to say ALL municipalities, but I take into account the village of Larchmont, which is only one square mile. I know they have at least one. They may have two,” he said, adding, that he’d be misstating things if he declared Mount Kisco “the cell tower capital of Westchester County.”
The village has “experienced zoning violations with some of the facilities that have ended up in court” and is “also subjected to continued requests to expand the use,” including possibly expanding into residential zones,” Cindrich said, likely referring to the advent of small cell networks.
These are low-powered radio access nodes that provide connectivity to mobile devices, supplementing larger macro towers where coverage and capacity are lacking.
While following current federal law, the village still intends to seek to minimize “to the greatest extent possible,” any “unnecessary adverse impacts” to persons or property, he said.
Telling Cindrich he would be happy to write any further provisions wanted into the proposed regulations, Campanelli urged the board to move forward with changes because, he said, “What you have right now is no good.”
One of the biggest concerns people have about wireless facilities is safety.
Wireless facilities, like cell towers, have maximum radiation levels, aka radio frequency (RF) energy, set by the Federal Communications Commission (FCC) to protect public health.
Those limits “are being litigated as we speak,” Campanelli told the board, adding that things could “go on for another decade.”
But just because the limits are in place, doesn’t mean that they are being followed.
“The harsh reality is, once a wireless facility is installed, the FCC never tests them and never requires the owners to test them,” he said.
Municipalities aren’t allowed to consider health risks of a particular facility unless that facility is exceeding those limits, Campanelli explained.
If tests show they are, then the village can hold a hearing where the carriers have to “show cause” why their permits shouldn’t be revoked.
They could also be fined, Campanelli said.
(Testing costs could be paid for through an escrow account set up by said owners/carriers.)
Campanelli also pointed out that each facility doesn’t have to be tested every year because just the mere threat of being found in non-compliance could be enough to keep folks in line.
“No company wants the press to report” that it has exceeded the limits, he said, adding that the ability to test randomly “affords a certain level of protection.”
The proposed code does include testing requirements, something Campanelli said would protect citizens.
“You are their first and ONLY line of defense because the FCC never tests these facilities,” he added.
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