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HomeMy WebLinkAboutKCE Southold - Second Supplemental Memo In Support of Area Variance Relief Request to ZBATOWN OF SOUTHOLD, NEW YORK ZONING BOARD OF APPEALS ------------------------------------------------------------------x In the Matter of the Application of SECOND KCE NY 26, LLC, SUPPLEMENTAL MEMORANDUM Applicant, IN SUPPORT Case No. 7685 For Variance Relief for the property located at 10750 Oregon Road, Cutchogue, New York ------------------------------------------------------------------x KCE NY 26, LLC (KCE) respectfully submits this Second Supplemental Memorandum in response to the December 1, 2022 testimony and exhibits submitted by Timothy Hill, Esq. and in further support of its Variance application to the Town of Southold (the “Town”) Zoning Board of Appeals (“ZBA”) requesting certain area variance relief (the “Application”) associated with the proposed battery energy storage system (“BESS”) to be located at the parcel situated at 10750 Oregon Road, Cutchogue, New York, said property also being known as Suffolk County Tax Map Number: 1000-083.00-03.00-006.001 (the “Property”). I.Standard of Review for Variance Applications to Town Zoning Boards of Appeals in New York State: Town Law § 267-b (3)(b) governs the review of Variance applications to Town Zoning Boards of Appeals in New York State. Town Law § 267-b (3)(b) provides, in full, as follows: In making its determination, the zoning board of appeals shall take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant. In making such determination the board shall also consider: (1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance. 2 Town Law § 267-b (3)(b). As the Court of Appeals has held: “Town Law § 267-b (3)(b) requires the Zoning Board to “engage in a balancing test, weighing ‘the benefit to the applicant’ against ‘the detriment to the health, safety and welfare of the neighborhood or community’ if the area variance is granted, and that an applicant need not show ‘practical difficulties’ as that test was formerly applied.” Sasso v. Osgood, 86 N.Y.2d 374, 384 [1995]. II.In Accordance with Town Law § 267-b (3)(b), Self-Creation of a Variance Does Not Require Denial of a Variance: The New York State Town Law Town Law § 267-b (3)(b)(5) expressly provides that self-creation is not a determinative factor for variances. See Sasso, 86 N.Y.2d at 385, holding “the statute expressly states that the fact that the applicant's difficulty was self-created does not necessarily preclude the granting of the area variance (Town Law § 267-b (3)(b)(5)). Under all the circumstances presented, the Board did not act arbitrarily in granting a variance notwithstanding the applicant's self-created difficulty.” Many variances are, in fact, self-created. As noted above, the Variance approval upheld in Sasso was self-created. (Id.). This provision of law has been expressly recognized by this Board on a number of occasions, including in the decisions contained in Exhibit B in the Memorandum in Support of the Application, dated November 28, 2022 (the “November Memorandum”), as well as Exhibit A in the Supplemental Memorandum in Support of the Application, dated December 1, 2022 (the “December Memorandum”). Further, certain variances / potential variances requested by KCE are caused by the nature of technology inherent in BESS uses (the sound mitigation wall) and/or necessary to provide for the greatest reliability (side yard setback related to the aluminum hardbus proposed to connect 3 the proposed Point of Interconnection (“POI”) and KCE Substations) as noted in the November Memorandum and December Memorandum. III.In Accordance with Town Law § 267-b (3)(b), the Setback and Height Variances Do Not Need to Be Denied if the Same are Determined to be Substantial: First, in Sasso, the Court of Appeals expressly upheld a decision where the Zoning Board of Appeals determined a variance to be substantial. Sasso, 86 N.Y.2d at 385. Moreover, this Board has granted variances it has deemed substantial before, including those variance approvals memorialized in Exhibit D in the November Memorandum, as well as Exhibit A in the December Memorandum. The substantiality and other factors required to be weighed pursuant to Town Law § 267- b (3)(b) and the Sasso decision have been addressed in the November Memorandum and December Memorandum as it relates to the noticed and potential variance relief. Since the submissions of those two Memorandums, however, the relief requested has been modified by KCE on the record at the December 1, 2022 hearing. Any height variance relief associated with the H-Frames has been eliminated. These were, originally, proposed to be 55 feet high as a result of the 20-foot-high lightning masts to be included atop a 35-foot-high H-Frame. As a result of the replacement of the originally proposed above ground transmission line with an underground transmission line, the H-Frame component has been removed from the application. The lightning masts that once stood atop the H-Frame, as well as the overhead wires and transmission poles associated therewith, have been replaced with four (4) free standing lightning masts that have a much lesser visual impact. (See Exhibit A hereto comparing an H-Frame to Free-Standing Lightning Masts, as seen from Oregon Road). 4 IV.Alternatives Were Considered by KCE: KCE has considered alternatives to the proposed conditions before this Board where the same are possible. First, should the Board determine a variance of Town Law 280-a to be necessary based on the proposed Site Plan, the only alternative for KCE to consider is the addition of a flag to the lot to be owned by LIPA to permit a second access driveway and road in lieu of the proposed permanent easement to LIPA, allowing it to share a common driveway and access road with KCE. This alternative is feasible, however, it serves no beneficial purpose, would require additional replacement of green space on the Property with roadway and would eliminate any landscaping along Oregon Road. For the reasons stated in the November Memorandum, KCE submits that the balance of the hardships favors the grant of a variance of Town Law 280-a if such a variance is, in fact, deemed necessary. Second, with respect to the zero-foot setback variance, the same is proposed to directly connect the POI and KCE Substations with an aluminum hardbus to avoid any transmission line (underground or above ground). The project can be constructed with a compliant setback between the LIPA and POI substations by connecting the substations through underground transmission lines instead of a hardbus. This would, however, result in less reliability as transmission lines are more susceptible to failure and the elements. As this variance only impacts lands to be owned by KCE and LIPA, is only visible from such lands and the unoccupied, abutting Town landfill and has a direct benefit to the power grid of greater reliability, KCE submits that a balance of the hardships favors the grant of this variance for the reasons more fully stated in the November Memorandum. Third, concerning the noticed height variance, as noted above in Section III hereof, KCE amended its application on the record to eliminate the most visible structure (the H-Frame) that required a height variance due to the placement of lightning masts on top of the same, in 5 accordance with applicable safety regulations. The proposed transmission structure that is replacing it will comply with the Town’s height ordinance. As result, the remaining height variances before the Board are solely related to the narrow in diameter lightning masts. (See Exhibit B showing Free-Standing Lightning Masts, as seen from Oregon Road). As noted at the December 1, 2022 public hearing, the lightning masts in the KCE Substation can be reduced to a Town Code compliant height of 35 feet or lower. However, in order to do this, the number of lightning masts will need to be increased, creating a larger horizonal visual massing of the lightning masts (resulting from the increased number of such masts on site) than if a variance was granted. This is a consideration for the Board. KCE is still proposing that the lightning masts at the POI Substation receive variance approval, so that such masts are provided at the height that LIPA installs such masts to protect its substations directly connecting into the electrical grid in accordance with applicable regulations. Finally, should the same be interpreted to require variance relief, the 12-foot-high sound mitigation wall is required for a BESS improvement to comply with the Town’s noise ordinance. An alternative is not feasible for the same given the need to cool the BESS modules for safety / operational reasons. This is inherent in the battery technology utilized in BESS modules. V.The Variances Will Not Have a Significant Adverse Visual Impact: The setback variance is not visible from Oregon Road due to proposed screening. To the extent it requires a variance, or otherwise, at the discretion of the Planning Board, the sound mitigation wall can be screened with vegetation to not be visible from Oregon Road. The most visible height variance elements have been eliminated from the property through the replacement of overhead transmission lines with underground transmission lines. (See Exhibit A). Given that the lightning masts, which are small in diameter, will be located a 6 great distance from neighboring uses and roadways, and, generally, adjacent to industrial uses to the northeast, a former Town landfill to the southeast, mulching operation and additional sanitation and recycling uses to the southwest, as well as a sod farm, the visual impact of the height variance will be minimal. Finally, to the extent a variance of Town Law 280-a is required, the variance grant will reduce the visual impact of the development by preserving greenspace along Oregon Road and reducing onsite roadways and driveways. Along Oregon Road, in the abutting Light Industrial Park / Planned Office Park District, is an adjacent sod farm, which takes up the western portion of the south side of the frontage along Oregon Road in this area. (See Aerial Photograph of the portion of Cutchogue, NY bounded by Depot Lane, Cox Lane, Middle Road and Oregon Road annexed hereto as Exhibit C). For persons traveling east on Oregon Road, they currently look across the sod farm and the Property to the retaining wall installed as part of a recent multi-building self-storage warehouse development that was constructed immediately next to the Property. (See attached photographs annexed hereto as Exhibit D). Also visible from Oregon Road, beyond the Property, are the man-made capped mounds of the Town’s closed landfill and a telecommunications tower that is located along Middle Road. (Id.) On the balance of the southside of Oregon Road, immediately to the east and northeast of the Property, are two industrial developments, particularly a circa mid 1970’s block warehouse and the above noted new self-storage warehouse complex. (See Exhibit C). These two abutting warehouse developments preclude those traveling west on Oregon Lane from looking into the subject property until they are at the Property’s frontage. (See attached photograph annexed hereto as Exhibit E). Continuing along Oregon, next to the self-storage complex, is an industrial structure and land that is filled with unattached trailers, passenger vehicles and other vehicles. 7 (See Exhibit C). Beyond that, at the corner of Oregon Road and Cox Lane is the Cutchogue Business Center, a multi-tenant office facility. (Id.) Along the northside of Oregon Road are single family residences, located across from the adjacent sod farm, and existing farms located across from a portion of the sod farm, the Property’s 30-foot access area, warehouse, self-storage warehouses, storage yard and multi- tenant office facility. Indeed, only approximately one / third of the lands bordering Oregon Road between Depot Lane and Cox Lane have farmed land visible along both sides of the roadway. (See Exhibit C). Any change of use of the Property will change the viewshed from Oregon Road. This, however, was true when a neighboring home and farm abutting the Property was recently demolished in favor of a new multi-building self-storage facility. (Compare Exhibit C to the attached 1970 aerials annexed hereto as Exhibit F). It was also true when the continuation of the agricultural vista that existed on the north and south sides of Oregon Road in 1970 was changed by the elimination of the agricultural uses to the north of the abutting sod farm in favor of single- family residences and the elimination of all farm uses to the northeast of the property along the southside of Oregon Road. (Id.) 8 VI.Conclusion: For the foregoing reasons and those stated in the November Memorandum and the December Memorandums filed in support of this application, KCE, respectfully, requests that the ZBA grant the requested area variance relief, as amended through its representations to the Board. Dated: January 18, 2023 Uniondale, New York Respectfully Submitted, John J. Anzalone, Esq. Harris Beach, PLLC 333 Earle Ovington Blvd, Suite 901 Uniondale, NY 11553 Attorneys for Applicant, KCE NY 26, LLC Exhibit A Comparison of an H-Frame to a Free-Standing Lightning Mast, as seen from Oregon Road Exhibit B Free-Standing Lightning Mast, as seen from Oregon Road Exhibit C Aerial Photograph of the portion of Cutchogue, NY bounded by Depot Lane, Cox Lane, Middle Road and Oregon Road Exhibit D November 28, 2022 Photographs of the Property traveling east on Oregon Road Exhibit E November 28, 2022 Photograph of the Property traveling west on Oregon Road Exhibit F 1970 Aerial Photograph of the portion of Cutchogue, NY bounded by Depot Lane, Cox Lane, Middle Road and Oregon Road