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Home My WebLink AboutKCE Southold - Supplemental Memo In Support of Interpretation Request to ZBATOWN OF SOUTHOLD, NEW YORK ZONING BOARD OF APPEALS ------------------------------------------------------------------x In the Matter of the Application of SUPPLEMENTAL KCE NY 26, LLC, MEMORANDUM IN SUPPORT Applicant, Case No. 7686 For an Interpretation for the property located at 10750 Oregon Road, Cutchogue, New York ------------------------------------------------------------------x KCE NY 26, LLC (“KCE”) respectfully submits this Memorandum in response to the December 1, 2022 testimony and exhibits submitted by Timothy Hill, Esq. and in further support of its application to the Town of Southold (the “Town”) Zoning Board of Appeals (“ZBA”) requesting an interpretation that 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, is a Public Utility use that may be permitted by the ZBA as a Special Exception pursuant to Town Code § 280-62(B)(5). I.The Zoning Board of Appeals is Bound by Town Code § 280-4(B) Pursuant to the Plain Meaning Rule: While the Town Code does not to define a “Public Utility”, pursuant to Town Code § 280-4(B), such term is expressly defined as provided in the Webster's Third New International Dictionary of the English Language, unabridged (or latest edition) (“Webster’s Dictionary”). Here, Webster’s Dictionary defines “Public Utility”, in full, as: “a business organization (such as an electric company) performing a public service and subject to special governmental regulation.” (See attached Exhibit A, Webster’s Dictionary’s definition of “Public Utility”, https://www.merriam-webster.com/dictionary/public%20utility, retrieved November 1, 2022). 2 For the reasons stated in the Memorandum in Support of the Application, dated November 28, 2022 (the “November Memorandum”), KCE satisfies the Webster’s Dictionary definition. The arguments by Mr. Hill that the Town Zoning Board of Appeals may disregard the definition in Webster’s Dictionary for not being informative as to what constitutes a “public utility” are misplaced pursuant to New York State case law. As the Court of Appeals has held, “[i]n construing the statute we follow two fundamental principles: first, we implement the intent of the Legislature. Second, we construe statutory words in light of ‘their plain meaning without resort to forced or unnatural interpretations.’” Fleming v. Graham, 10 N.Y.3d 296, 300 [2008], quoting Castro v. United Container, 96 N.Y.2d 398 at 401 [2001]. The Court of Appeals has further held that “‘[i]t is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature’, but we have correspondingly and consistently emphasized that ‘where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used.’” Patrolmen's Benevolent Assn. v City of New York, 41 N.Y.2d 205, 208 [1976] [citations omitted]; see, Doctors Council v New York City Employees' Retirement Sys., 71 N.Y.2d 669, 674-675 [1988]. If an agency's interpretation "disregard[s] the plain meaning of the Zoning Resolution," courts will afford it "little weight". Peyton v. New York City Board of Standards and Appeals, 36 N.Y. 3d 271, 280- 281 [ 2020] quoting Raritan Dev. Corp. v. Silva, 91 N.Y.2d 98, 106 and 103 [1997]. Here, the Town Board left no doubt about its intentions. It, effectively, adopted the Plain Meaning Rule pursuant to Town Code § 280-4(B) by clearly and unambiguously providing that terms not defined by the Town Code are defined by Webster’s Dictionary or, in another words, in accordance with their ordinary meaning. Applying any other definition violates the plain precedent of the Court of Appeals and the intent of the Town Board. 3 II.Decisions of the Zoning Board of Appeals are Precedent: In Matter of Field Delivery Serv. [Roberts], the Court of Appeals held that "[a] decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious." 66 N.Y.2d 516, 516-517 [1985]. Not long after the Matter of Field Delivery Serv. [Roberts] decision, the Court of Appeals expressly held that the above standards apply to Zoning Boards of Appeals. Knight v. Amelkin, 68 N.Y. 2d 975, 977 [1986], holding “inasmuch as a zoning board of appeals performs a quasi-judicial function when considering applications for variances and special exceptions (see, Matter of Cowan v Kern, 41 N.Y.2d 591, 598-599, rearg denied 42 N.Y.2d 910; Holy Spirit Assn. v Rosenfeld, 91 A.D,2d 190, lv denied 63 N.Y.2d 603), and completely lacks legislative power (2 Anderson, New York Zoning Law and Practice § 23.59, at 251; 6 Rohan, Zoning and Land Use Controls § 43.01 [2] [b], at 43-8 — 43-9), a zoning board of appeals must comply with the rule of the Field case.” Here, there is no difference between the BESS use proposed by KCE and that BESS use approved as a public utility by the May 6, 2021 decision of this Board. (See Exhibit B to the November Memorandum). Further, there has been no intervening change to the Town Code with respect to the definition of Public Utility uses since the May 6, 2021 decision of this Board. III.The June 17, 2021 decision of the Islip Zoning Board of Appeals is Contrary to Precedent of the Southold Zoning Board of Appeals and Inapt: Mr. Hill’s reliance on the June 17, 2021 decision of the Islip Zoning Board of Appeals (the “Islip Decision”) concerning a subsidiary of Savion Energy is in error. (See attached Exhibit B, the Islip Zoning Board of Appeals’ decision, dated June 17, 2021). First, the Islip Decision is in direct conflict with the May 6, 2021 decision of this Board for a different subsidiary of Savion Energy. (See Exhibit B to the November Memorandum). As noted above in Section II, 4 decisions of a Zoning Board of Appeals are precedential under New York case law and there has been no change to the Town Code since the May 6, 2021 decision of this Board. Second, the Islip Town Code does not contain an equivalent provision to Town Code § 280-4(B) and does not provide how undefined terms should be interpreted. Accordingly, the Islip Town Board sets forth no directions to the Zoning Board of Appeals or any Board or Department of the Town with respect to the meaning of terms not defined by the Town Code. Thus, a comparison of the two decisions is inapt as the Town of Southold Town Board has created a clear source of definitions for undefined terms, while the Town of Islip Town Board has not. In short, the Islip Decision interprets the meaning a of “public utility” under a different Town Code, pursuant to a different regulated scheme adopted by a different Town Board. Third, the Islip Decision focuses on the jurisdiction of the Federal Communications Commission or the Public Service Commission. In that application, the applicant made no assertion that it was regulated by either Commission, nor defined as such by State Statute. The Islip Zoning Board of Appeals held that the failure to show such regulation was fatal. (See Exhibit B at Page 4). Here, KCE has detailed how the project is directly regulated by the Public Service Commission in the November Memorandum at pages 3-4. Further, KCE constitutes a “public utility company” within the definition of such term contained in the Public Service Law adopted by the State Legislature as described below in Section IV. Further, it should also be noted, that, in addition to the Town of Southold, the Town of East Hampton has classified BESS uses as a public utility to permit the two existing BESS facilities on Long Island. (See attached Exhibit C, Town of East Hampton Site Plan Initial Evaluation – East Hampton Energy Storage, LLC – Site Plan / Special Permit, dated January 3, 2017; Town of East Hampton Site Plan Initial Evaluation – Montauk Energy Storage, LLC – Site Plan / Special Permit, dated January 4, 2017; East Hampton Energy Storage, LLC – Site Plan / 5 Special Permit, Public Hearing Comments, dated July 20, 2017; and Montauk Energy Storage, LLC – Site Plan / Special Permit, Public Hearing Comments, dated January 3, 2018). IV.A Determination that a BESS Use is a Public Utility Uses is Consistent with State Case Law: The Court of Appeals, has held that a “public utility” is defined to mean “a private business, often a monopoly, which provides services so essential to the public interest as to enjoy certain privileges such as eminent domain and be subject to such governmental regulation as fixing of rates, and standards of service.’” Cellular Tel. Co. v. Rosenberg, 82 N.Y.2d 364, 371 [1993], quoting 2 Anderson, American Law of Zoning § 12.32, at 568-569 [3d ed]. Further, the Court of Appeals has noted that characteristics of public utilities include: 1.The essential nature of the services offered, which must be considered by a reviewing agency when regulations seek to limit expansion of facilities which provide the services; 2.Operation under a franchise, subject to some measure of public regulation; and 3.Logistic problems, such as the fact that “[t]he product of the utility must be piped, wired, or otherwise served to each user * * *[,] the supply must be maintained at a constant level to meet minute-by-minute need[, and] [t]he user has no alternative source [and] the supplier commonly has no alternative means of delivery.” Id. at 371, quoting 2 Anderson, American Law of Zoning § 12.32, at 569 [3d ed]. Based on the foregoing factors, the Court of Appeals held that a wireless telephone service was analogous to other traditional essential services, such as land line telephone service and electric and natural gas providers, and that the cellular telephone company’s demonstration that the facility’s location was necessary in order to provide service was sufficient to warrant the granting of any zoning approvals under the public utility standard. Id. at 371. The Court further held that the antenna tower constituted a “public utility building” within the meaning of the local zoning ordinance. Id. 6 Similarly, here, as described above, the Project will provide electricity reliability, a service that is essential to the public health, safety and general welfare. The Project will provide grid stability to all PSEG Long Island’s (“PSEG-LI”) / LIPA customers in the area subject to the public regulations imposed by LIPA, PSEG-LI, New York Independent System Operator and the Federal Energy Regulatory Commission as detailed in the November Memorandum. Furthermore, the Project will service PSEG-LI’s service area by regularly receiving, storing and releasing electricity for the specific geographic area in and around the Town of Southold. By its decision in Rosenberg, the Court made clear that formal transportation corporation status—the ability to take property by eminent domain, or to enter into franchises for service, for example—is not relevant to how the company proposes to use the land, or whether it is proposing a public utility use. Indeed, private cellular companies are not formed as transportation corporations—yet they are still treated as “essential facilities.” Local zoning ordinances that have incorporated “essential facilities” language into their laws essentially codify the Rosenberg standard for utility facilities—private or public. This in accord with the New York Court of Appeals’ focus on the type of service being provided, instead of the legal status of the entity providing it, to determine whether the proposed facility was a public utility facility. While there appears to be no case law on point with respect to whether a BESS is a public utility, case law on wind farm operators is informative. In West Beekmantown Neighborhood Ass'n v. Zoning Board of Appeals of the Town of Beekmantown, 53 A.D.3d 954 [3d Dep’t 2008], the Court considered a zoning ordinance that did not define a public utility (copy of decision attached hereto as Exhibit D). The ZBA determined that Windhorse Power, LLC was entitled to a conditional use permit as a public utility providing an “essential service” as specified by the Town's zoning ordinance, which defined “essential service” as the “erection, construction, operation or maintenance by municipal agencies or public utilities of...electrical or gas 7 substations...and similar facilities that provide essential use and services, [the] general (unidentified) public has a legal right to demand and receive.” While the petitioners argued that Windhorse was neither a municipal agency nor a public utility and that the proposed wind farm, therefore, could not constitute an essential service, the Court rejected this because the wind turbines “will generate energy, a useful public service, and will be subjected to regulation and supervision by the Public Service Commission.” Id. at 956, citing Public Service Law (“PSL”) Sections 2(2-b). 2(12), 2(23), 5(1)(b) and 66-c. Of particular note, PSL Section 2(2-b), is the definition of “alternate energy production facility”, which expressly includes “energy storage device utilizing batteries”, such as the proposed BESS, in addition to wind turbines. PSL Section 2(12), defines “electric plants” as “all real estate, fixtures and personal property operated, owned, used or to be used for or in connection with or to facilitate the generation, transmission, distribution, sale or furnishing of electricity for light, heat or power; and any conduits, ducts or other devices, materials, apparatus or property for containing, holding or carrying conductors used or to be used for the transmission of electricity for light, heat or power.” PSL Section 5(1)(b) provides that the powers of the Public Service Commission jurisdiction extend “[t]o the manufacture, conveying, transportation, sale or distribution of gas (natural or manufactured or mixture of both) and electricity for light, heat or power, to gas plants and to electric plants and to the persons or corporations owning, leasing or operating the same.” Here, the Property will be utilized by the fixtures in the Project to facilitate the transmission, distribution, sale and furnishing of electric. PSL Section 2(23) further defines a “public utility company” as “one or more persons or corporations operating an agency or agencies for public service, and who or which is or are subject to the jurisdiction, supervision and regulations prescribed by or pursuant to provisions of this chapter other than Article 11.” Alternate energy production facilities, such as BESS and wind turbine uses, are 8 regulated by PSL Section 66-c, which is outside of Article 11. Accordingly, KCE is a public utility company under the definition adopted by the State Legislature pursuant to PSL Section 2(23). In Wind Power Ethics Group (WPEG) v. Zoning Bd. of Appeals of Town of Cape Vincent, 60 A.D.3d 1282 [4th Dep’t 2009], the ZBA determined that St. Lawrence Windpower, LLC’s wind-powered generators qualified as a utility under the Town's zoning code, which defined utilities to include “electrical or gas substations, water treatment or storage facilities, pumping stations and similar facilities” that have been, inter alia, constructed or maintained by municipal agencies or public utilities. Id. at 1283 (copy of decision attached hereto as Exhibit E). In accordance with well-established precedent, the Court gave deference to the ZBA's classification of wind-powered generators as a utility within the meaning of their zoning ordinance and held that this determination was supported by substantial evidence. Id., citing West Beekmantown. 9 V.Conclusion For the foregoing reasons and those stated in the November Memorandum, a determination that the Project is a public utility would be consistent with the precedent of this Board, New York State case law and the definition of such term expressly incorporated into the Town Code by to Town Code § 280-4(B). Accordingly, KCE, respectfully, submits that the ZBA (1) issue an interpretation that the proposed use should be considered a public utility and (2) consider all other relief and approvals noted in the Town Building Inspector’s April 6, 2022, Amended April 13, 2022, Notice of Disapproval pursuant to the separate applications filed for such relief and approvals. 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 Webster’s Dictionary’s definition of a “Public Utility”, https://www.merriam- webster.com/dictionary/public%20utility, retrieved November 1, 2022 Exhibit B Town of Islip Zoning Board of Appeals’ decision, dated June 17, 2021 Exhibit C Town of East Hampton Site Plan Initial Evaluation – East Hampton Energy Storage, LLC – Site Plan / Special Permit, dated January 3, 2017; Town of East Hampton Site Plan Initial Evaluation – Montauk Energy Storage, LLC – Site Plan / Special Permit, dated January 4, 2017; East Hampton Energy Storage, LLC – Site Plan / Special Permit, Public Hearing Comments, dated July 20, 2017; and Montauk Energy Storage, LLC – Site Plan / Special Permit, Public Hearing Comments, dated January 3, 2018 Exhibit D West Beekmantown Neighborhood Ass'n v. Zoning Board of Appeals of the Town of Beekmantown, 53 A.D.3d 954 [3d Dep’t 2008] Exhibit E Wind Power Ethics Group (WPEG) v. Zoning Bd. of Appeals of Town of Cape Vincent , 60 A.D.3d 1282 [4th Dep’t 2009]