Yorktown Zoning Board defends battery storage decision in lawsuit

The Town of Yorktown is defending a lawsuit filed by an energy developer following the denial of a use variance for a proposed battery energy storage facility.

The lawsuit, filed Feb. 25 by Yorktown ESS, LLC, challenges a Jan. 22 decision by the Yorktown Zoning Board of Appeals to deny the project at 3666 Old Yorktown Road.

Town officials argue the developer is improperly seeking special legal status by attempting to classify the Battery Energy Storage System, or BESS, as a public utility.

The proposed facility would store energy and provide it to Consolidated Edison under a contract agreement.

At the center of the lawsuit is a dispute over the legal standard used to evaluate the project. Yorktown ESS, LLC argues the Zoning Board of Appeals erred by not applying the Public Utility Variance Standard, a more lenient test typically reserved for essential public service providers.

“This developer is in no way a public utility entitled to review under the PUVS,” said Supervisor Ed Lachterman. “This is a private company that wants to damage the character of a residential neighborhood in exchange for money from a public utility.”

Under state law, a public utility must provide a service so “essential to the public interest” that it is subject to government regulation of rates and standards.

Yorktown argues that storing energy for sale to an intermediary like Con Ed is not the same as providing an essential service directly to the consumer public.

The town asserts there is no evidence that the developer’s rates are regulated by the Public Service Commission; instead, they appear to be governed by a private contract with Con Ed. Furthermore, traditional utilities face unique logistical challenges, such as the need to pipe or wire products to every user minute by minute. The developer failed to show it faces these logistical problems.

The ZBA, after finding that the developer was not entitled to review under the PUVS because it was not a public utility, found that the developer failed to establish that it was entitled to a variance under the common standard required by New York State law.

The developer’s reply papers, if any, are due on June 5.

Article courtesy of Thompson & Bender