Court rules Yorktown battery storage project qualifies as public utility

A Westchester County Supreme Court judge has ruled that a proposed 5-megawatt battery energy storage system in Yorktown should be treated as public utility infrastructure, a decision that could affect how similar projects are reviewed across New York.

The July 16 ruling (entered on July 17) in Yorktown ESS LLC v. Town of Yorktown Zoning Board of Appeals found that battery energy storage systems that meet the requirements for public utility status must be reviewed under the Public Utility Variance Standard, rather than the traditional use variance process. The decision is believed to be the first in New York State to determine that a battery energy storage system qualifies as a public utility.

Town Attorney Adam Rodriguez told Yorktown News in an email on July 31 that “classifying a BESS as a ‘public utility’ (in a case of first impression in the entire state of New York) creates an existential friction with home rule.”

He added that “when state-level mandates override local zoning, municipalities lose the authority to engage in self-determination.”

The lawsuit was filed earlier this year by Yorktown ESS, LLC, after the Zoning Board of Appeals denied a use variance on Jan. 22 for the proposed facility at 3666 Old Yorktown Rd.

In May this year, the town defended the ZBA’s decision, arguing that the developer was attempting to classify a private commercial project as a public utility. Town officials said the facility would store energy and provide it to Consolidated Edison under a private contract, but argued that it did not meet the traditional definition of a public utility because it was not subject to Public Service Commission rate regulation or the same operational challenges faced by traditional utilities.

Yorktown ESS argued that the ZBA should have applied the Public Utility Variance Standard, which requires applicants to demonstrate public necessity rather than meet the stricter requirements of a traditional use variance.

“Ultimately, the town does not agree that the proposed BESS facility is a public utility because it is privately owned, and does not directly serve the public,” Rodriguez said.

The decision also comes after the Town Board adopted legislation restricting certain battery energy storage systems. In a 4-1 vote in May 2025, with Councilwoman Susan Siegel voting no, the board approved an amended law banning Tier 2 Battery Energy Storage Systems.

The court’s ruling means Yorktown ESS will now be evaluated under the Public Utility Variance Standard rather than the traditional use variance process.

Yorktown appealed Acting Justice of the Supreme Court Hon. Erin McGoey's order on July 31; Rodriguez said the town “is entitled to an automatic stay of the order while the appeal is decided by the Appellate Court.”