BESS Debate About Moratorium, Potential Code Revisions and Hampton Bays Site Continues Amid Impassioned Opposition

Battery energy storage systems, and in particular one proposed off the North Road in Hampton Bays, have dominated discussion in Southampton Town Hall this week, with the Town Board voting to schedule a public hearing on a three-month moratorium on BESS applications at its Tuesday, June 27, meeting.

An at-times obstreperous audience questioned two board members at a Hampton Bays Civic Association meeting on Monday night, and still another discussion about the sustainable energy strategy took place during the June 22 Town Board work session. Meanwhile, an online petition in opposition to the project garnered over 2,000 signatures in just 10 days.

Speakers at the podium during Tuesday night’s Town Board meeting reiterated a laundry list of concerns that have been voiced since the Canal Southampton Battery Storage application came to light earlier this year. Fearful of the new and untried technology, community members are worried about the potential for a disastrous fire and adamantly opposed placing the BESS in a residential community.

As has occurred throughout months of discourse, speakers appear to conflate the Town Board’s adoption of zoning code related to any BESS facility with the Planning Board’s review of the Canal Southampton proposal. Some believe the Town Board has approved the Hampton Bays BESS, which it has no authority to do — that’s the Planning Board’s job. The Planning Board voted to adjourn a hearing on the matter indefinitely, so there’s no approval looming soon.

In January 2021, the Town Board adopted regulations related to BESS. A moratorium, which will be the subject of a public hearing on July 11, would pause any new BESS applications; as written and adopted this week, it would exempt the Hampton Bays BESS. Such exemptions of applications already in process are standard procedure with building moratoriums.

Still, board members considered removing provisions in the moratorium language that exempts or excludes applications already in the review process — which means the Canal BESS.

After discussing whether to remove the provision immediately, or wait until after a July 11 public hearing provides feedback, the board chose the latter strategy. That means that, as written, the moratorium would exclude the opposed application, but could include it if extensive community opposition continues.

Generally, lawmakers balk at including plans already undergoing the municipal review process when adopting moratoriums out of fear of lawsuits. The courts often find in favor of applicants that appear targeted by a moratorium while in process.

The BESS moratorium, if adopted, is envisioned as offering time for the Planning Board to learn more about the technology and for the Town Board to review its adopted zoning code pertaining to such facilities.

Councilwoman Cyndi McNamara, who’s spearheading the push for a moratorium, said the code may need revision in two areas — permitted placement of the facilities and fire safety. The existing code requires applications to conform to New York State fire codes, while the National Fire Protection Association standards are newer and more full-bodied.

McNamara also wants provisions related to the scale of projects and where they would be allowed to undergo review and perhaps revision. Towns that have adopted BESS code have not allowed them in residential areas, opponents have said.

When McNamara first broached the idea of a moratorium last spring, Land Planning and Development Administrator Janice Scherer, who oversaw the authoring of the BESS code, defended it. Last week, she pointed out that the pause would have to receive approval from the Suffolk County Planning Commission. They’re not always guaranteed, Scherer said.

However, local municipalities can override a Planning Commission decision of disapproval with a majority plus one vote. That means four members of the Town Board would have to vote to override if the commission says no.

Turning to the Canal BESS specifically, outraged opponents have castigated the Town Board for “approving” the plan to place a facility in the midst of a residential community.

The plan has not been approved. And the Town Board is not the reviewing authority to approve it.

What the Town Board can do is enact a moratorium that doesn’t exempt the application and revise the existing BESS zoning regulations to prohibit such facilities in residential zones. Both actions could prompt lawsuits from the applicant.

Otherwise, the Town Board has no power to halt the project. That’s the Planning Board’s job.

So far, however, the application to build 30 battery enclosures each with 24 battery modules on a 4.9-acre property located off North Road in Hampton Bays is already in a holding pattern.

After a June 8 public hearing that packed the Town Hall auditorium, with opponents spilling over into the adjacent conference room, board members voted to adjourn the hearing indefinitely. That means the public can continue to offer input to the board, both in writing or, when next the hearing opens, in person.

Once the public hearing closes, all the comments will be reviewed, with a report compiled by staff. Board members will review that and potentially ask the applicant for additional information. Already the board has asked the developer to provide letters from the local fire district and fire marshals demonstrating interaction with them is underway.

The process is not fast.

Beyond site plan approval, the applicant must also procure a special exception approval. For that to be granted, the Planning Board must find that the plan complies with a baker’s dozen of standards relating to such aspects as suitability for its location and potential impacts on the surrounding community.

On the issue of environmental impacts, the Planning Board issued what’s known as a negative declaration under the State Environmental Quality Review Act. A “neg-dec” means a project doesn’t have the potential for adverse environmental impacts. During a June 26 Hampton Bays Civic Association meeting focused on the Canal BESS, board member Liz Hook said she believes the Planning Board is legally mandated to withdraw its declaration of environmental significance.

Last month, HBCA officials wrote planners calling for rescinding the SEQRA determination because members “did not have full information about the significant environmental hazards posed by such a facility at the time it issued its decision,” according to a draft of the group’s letter. The declaration was made in November 2022, while the board’s request for a moratorium first surfaced some six months later.

Also present at the civic’s meeting, Kevin McAllister, president of the environmental advocacy group Defend H2O, called the determination “a colossal mistake.”

On Monday night, McNamara and Councilman Rick Martel fielded questions from a packed house during the association’s monthly meeting at the town senior center. Questions and comments ran the gamut from the technical statement about SEQRA to queries about exactly who is on the Town Board.

Republicans McNamara and Martel both emphasized that, while they support the moratorium, they’re just two minority members on the board. “I share your concern,” McNamara said. To the question, “What can we do?” she encouraged community members to continue to attend Town Board and Planning Board meetings and voice their opinions.

Some of the opinions shared appeared to be based in misunderstanding. HBCA President Geraldine Spinnella charged that the Town Board crafted its BESS zoning regulations to allow the Canal project, when, in actuality, the code was adopted in January 2021 some time before the project arose. That application was submitted in June 2022.

McNamara was not in office when the town’s BESS regulations were adopted, but Martel was. He explained that elected officials relied on their appointed professionals — Scherer and town planner Michealangelo Lieberman, who’s since left town employ — to provide them with the best information they needed to vote. One audience member said Scherer should be fired for crafting a code that allows for BESS in residential areas.

It was then noted that the local professional relied on information from the New York State Energy Research and Development Authority. Martel said he attended a class administered by the authority himself and completed the course feeling BESS is a benign land use. “The majority of the Town Board does not believe we were given poor advice,” McNamara said.

Audience members wanted to know why the Planning Board can’t just outright deny the project. A denial without extensive justification could prompt legal action; the developer could launch a suit against the town, one they would win if the judge deems the denial arbitrary. Outright denials rarely happen.

Southampton Town Trustees were on hand for the Civic Association meeting, so packed audience members spilled out into the hallway. Their president, Scott Horowitz, said, “We hear you loud and clear.” His board will prepare an opinion for the record and will prepare it outlining their concerns, “which are your concerns,” he said.

“None of this was ever intended to construct Chernobyl here,” Scherer said during last week’s work session. Supervisor Jay Schneiderman agreed, relating that when the Town Board reviewed BESS regulations, “We approached it as a relatively benign use.”

“We had said residential areas were appropriate, but maybe if it’s a certain size, it’s not appropriate,” the supervisor offered.

There are different types of BESS that use different types of technology. He and Councilman John Bouvier both said the Canal applicant proposes to use a lithium phosphate system that’s know as a low-burning system and not the type of system that’s been featured in news stories about massive fires and e-bike and electric car explosions.

However, on Tuesday night, Hampton Bays resident Ray D’Angelo said he scoured information about the Canal BESS and didn’t find that.

Discussing BESS in an upcoming “27Speaks” podcast, Bouvier said that as town officials review the existing code, they could revise it to allow only low-burning battery technology in battery storage facility developments.

“If you have a Planning Board that’s not comfortable with it, you’re gonna face every application with this level of distrust,” McNamara argued at the work session. “Everybody needs a level of comfort — otherwise we’re just gonna fight this battle over and over again.”

“People are scared,” Schneiderman acknowledged.

“Very scared,” McNamara enjoined. “People are talking about selling their homes.”

The community needs to understand why BESS technology is important, Bouvier said. He’s spoken about the need to move away from fossil fuels and embrace sustainable technology. The switch to renewable fuels is critically important, he said at the work session. Electricity right now is 90 percent fossil fuel, a big contributor to climate change, Bouvier noted.

On Tuesday night, neighbor Bridgid Maher praised McNamara and Martel for validating community concerns.

Turning to Bouvier, she said, “We all want the best for our grandchildren. I know, Mr. Bouvier, you have expressed that. But do you want your grandchildren to know you gave them their future while destroying the lives of other people?

“Bad choices made with good intentions are still bad choices.”