Barclay Damon previously reported on the Freepoint case, where the New York State Appellate Division, Third Department, ordered a town zoning board of appeals (ZBA) to review and approve a community solar project under the Public Utility Variance Standard (PUVS), a relaxed use variance standard. Now, in another judicial action benefitting energy development across New York State, the Westchester County Supreme Court held that a proposed 5 MW battery energy storage system (BESS) project in the Town of Yorktown is considered a public utility use and must be evaluated for a variance under the PUVS.
In Yorktown ESS, LLC v. Town of Yorktown ZBA, (Yorktown), the town prohibited battery energy storage across all zoning districts. When the developer applied to the ZBA for a use variance, they requested that the ZBA review the project under the PUVS rather than the traditional New York State Town Law § 267-b “unnecessary hardship” test that generally applies to use variance requests.
Under the PUVS, the application must demonstrate just two elements:
- The proposed facility is a public necessity required to render safe and adequate service.
- There are compelling reasons, economic or otherwise, making the proposed site more feasible than alternatives.
The Court affirmed that infrastructure and facilities are defined by their essential role in sustaining utility services, a site selection process dictated by a heavy regulatory framework, and technical or engineering constraints. As a result, this essential infrastructure “must satisfy [the] distinct, more flexible showing” of the PUVS. The Court also affirmed that such infrastructure has, over time, “evolved.”
Until Yorktown, it was uncertain whether standalone BESS projects would qualify as essential infrastructure and a public utility subject to the PUVS. Yorktown now stands in a long line of cases that extends the application of the PUVS to the “evolving utility-system infrastructure,” which includes nuclear energy, water-system infrastructure, wind turbines, telecommunication towers, electrical substations, community solar, and now BESS projects.
Barclay Damon advocates on behalf of BESS and solar projects in municipalities that continue to resist, even in the wake of the landmark Freepoint decision, application of the PUVS. The Yorktown Court provided an additional point of leverage for public utility developers, holding that “whether a proposed land use qualifies as a public utility use for zoning purposes is a legal question governed by New York precedent, not a factual determination made at the discretion of the ZBA.” The Court then rejected the ZBA’s position that the proposed 5 MW BESS was not a public utility use as a “position . . . that New York Courts have repeatedly rejected in applying the Hoffman Court’s framework to evolving utility-infrastructure.” As the Court concluded, “application of the PUVS is mandatory rather than discretionary.”
While Yorktown is a meaningful development, like Freepoint, it is not a shortcut through the local approval process. Any BESS project that requires a use variance must provide substantial evidence in support of the two elements under the PUVS. Yorktown alone does not extinguish safety concerns or change the requirement of an environmental review in compliance with the State Environmental Quality Review Act (SEQRA). Ultimately, local municipal boards must still approve the underlying project.
Barclay Damon’s Land Use & Zoning Practice Area attorneys remain engaged with these developments and will continue to monitor all BESS–related legal news.
If you have any questions regarding the content of this alert, please contact Corey Auerbach, Land Use & Zoning Practice Area chair, at cauerbach@barclaydamon.com; Ari Goldberg, counsel, at agoldberg@barclaydamon.com; Dan Krzykowski, associate, at dkrzykowski@barclaydamon.com; or another member of the firm’s Land Use & Zoning Practice Area.
Mary Harrison, summer associate (not admitted to the practice of law), contributed significantly to the preparation of this alert.