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Extension of Moratorium Battery Energy Storage System Facilities


 

WHEREAS, there has been presented to the Town Board of the Town of Southold, Suffolk County, New York, on the 27th day of February, 2024, a Local Law entitled, “A Local Law in relation to a twelve (12) month Extension of a Temporary Moratorium on the issuance of approvals and/or permits for Battery Energy Storage System (BESS) facilities” now, therefore, be it

 

RESOLVED that the Town Board of the Town of Southold will hold a public hearing on the aforesaid Local Law at the Southold Town Hall, 53095 Main Road, Southold, New York, on the 26th day of March, 2024 at 4:30 p.m. at which time all interested persons will be given an opportunity to be heard,

 

RESOLVED that the Town Board of the Town of Southold hereby authorizes and directs the Town Clerk to send the following proposed Local Law to the Suffolk County Planning Department and the Southold Town Planning Board for their recommendations and review.

 

The proposed Local Law entitled, “A Local Law in relation to a twelve (12) month Extension of a Temporary Moratorium on the issuance of approvals and/or permits for Battery Energy Storage System (BESS) facilities” reads as follows

LOCAL LAW NO.      2024

 

A Local Law entitled, “A Local Law in relation to a twelve (12) month Extension of a Temporary Moratorium on the issuance of approvals and/or permits for Battery Energy Storage System (BESS) facilities”.

 

BE IT ENACTED by the Town Board of the Town of Southold, as follows:

 

I. PURPOSE - Moratorium Extension

 

The Town recognizes that Battery Energy Storage System (BESS) facilities are a key

component to the viability and promotion of renewable energy sources, however, the

technology of these systems is still in its infancy. This moratorium is necessary to permit the Town to undertake a thorough examination of these systems to identify any possible threats to public health, safety and welfare as well as evaluate the potential for environmental degradation. These issues are of great public concern and it is important that the potential for any risks is thoughtfully reviewed with in-depth analysis and that mitigation measures are identified to ensure the continued protection of our community and of our environment. Such findings will assist in the crafting of code that will determine criteria for future siting, site design, safety requirements and all other elements that may be necessary for approval. 

 

A one (1) year moratorium was enacted by the Town Board of the Town of Southold as Local Law 8-2023, on January 31, 2023, with an effective date of April 11, 2023. The current moratorium is set to expire on April 11, 2024.

The moratorium as enacted, is intended to provide sufficient time for the Town to undertake a thorough examination of these systems to identify any possible threats to public health, safety and welfare as well as evaluate the potential for environmental degradation. 

 

Since the enactment of the moratorium, there have been multiple incidents involving BESS facilities. In July of 2023, Governor Hochul formed an Inter-Agency Fire Safety Working Group to analyze data and make recommendations for safety. In December 2023, the Governor released initial findings and as recent as this month, the Governor released the initial recommendations. Governor Hochul also recently published a Draft Fire Code Recommendations Report concerning which public comment has been requested. As this process is not complete, the Town cannot adequately access the information and make sound decisions in enacting code. Further, the Task Force assembled by the Town, consisting of seven (7) representatives of the community, renewable energy industry, battery storage industry and environmental/municipal organizations, has not finalized its recommendations or established an action plan, which is intended to serve as a guide for the integration of battery energy storage systems into the Town Code. Finally, the work of the Town’s outside consultant, updating the Southold Town Code, has not yet had the opportunity to incorporate the aforesaid recommendations, or identify regulations and/or required amendments to the Town’s Comprehensive Plan. 

 

The Town’s Task Force was timely assembled and has worked consistently to examine current safety protocol standards and success rate in the application of new systems.  Issues of public safety and risks of fire incidents have been considered, including risks associated with equipment failure and/or human error. The Task Force has also investigated equipment, personal safety gear and training. Additional considerations of the Task Force include zoning classifications, separation distances, plant size, minimum lot area, buffer requirements, lighting and security. 

 

The Town Board wishes to be able to consider the proposals and recommendations of the Task Force, Code Consultant and the State on these issues, including various alternatives to current zoning; as well as implement public safety measures to insure the health, safety and welfare of the community. An extension of the moratorium is necessary to complete this function. This extension is specific and limited to BESS facilities only.

 

Given that the State’s investigation is not yet concluded and the work of the Town’s Consultant and BESS Task Force is ongoing, the Town Board finds it necessary to extend the moratorium already in effect, the terms of which remain unchanged and are set forth below. This action is necessary in order to protect the character, public health, safety and welfare of the residents of the Town of Southold. 

 

II.  ENACTMENT OF A TEMPORARY MORATORIUM

 

              Until twelve (12) months from the effective date of this Local Law, after which this Local Law shall lapse and be without further force and effect and subject to any other Local Law adopted by the Town Board during the twelve (12) month period, no agency, board, board officer or employee of the Town of Southold including, but not limited to, the Town Board, the Zoning Board of Appeals, the Trustees, the Planning Board , or the Building Inspector(s), issuing any building permit pursuant to any provision of the Southold Town Code, shall issue, cause to be issued or allow to be issued any approval, special exception, variance, site plan, building permit, subdivision, or permit for any use identified as a Battery Energy Storage System (BESS) facility. 

 

III.  EXCLUSIONS

 

This Local Law shall not apply:

 

1)              To any person or entity who/which has, prior to the effective date of this Local Law, obtained all permits required for such a facility and, relying upon such permission, has undertaken significant development of such facility.

2)              To any application by a municipal corporation or special district or fire district

 

IV.  AUTHORITY TO SUPERSEDE

 

To the extent and degree any provisions of this Local Law are construed as inconsistent with the provisions of Town Law this Local Law is intended pursuant to Municipal Home Rule Law to supersede any said inconsistent authority.

 

V.  VARIANCE TO THIS MORATORIUM

 

Any person or entity suffering unnecessary hardship as that term is used and construed in Town Law section 267-b (2)(b), by reason of the enactment and continuance of this moratorium may apply to the Town Board for a variance excepting the proposed use from the temporary moratorium and allowing issuance of a permit all in accordance with the provisions of the Southold Town Code.

 

VI.  SEVERABILITY

             

If any clause, sentence, paragraph, section, or part of this Local Law shall be adjudged by any court of competent jurisdiction to be invalid, the judgment shall not impair or invalidate the remainder of this Local Law.

 

VII.  EFFECTIVE DATE

             

This Local Law shall take effect immediately upon filing with the Secretary of State.


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