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HomeMy WebLinkAboutKCE Southold - Supplemental Memo In Support of Special Exception 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. 7684SE For a Special Exception 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 a Special Exception to permit a public utility use, here, a 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”), pursuant to Town Code § 280-62(B)(5) (collectively, the "Project"). I.Standard of Review for Special Exceptions Under New York Law: It is well settled law that a Special Exception is “tantamount to a legislative finding that, if the special exception conditions are met, such a use will not adversely affect the neighborhood.” Sunrise Plaza Associates, L.P. v. Town Bd. Of Town of Babylon, 250 A.D.2d 690, 693-694 [2d Dep’t 1998]; see also North Shore Steak House, Inc. v. Board of Appeals of Inc. Village of Thomaston, 30 N.Y.2d 238, 243 [1972] holding that such a use is “tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood.”; Matter of Twin County Recycling Corp. v. Yevoli, 90 N.Y.2d 1000, 102 [1997]. 2 A Special Exception is dissimilar to a variance since it does not involve varying of the restrictions of the Zoning Ordinance. Instead, the issuance of a Special Exception is a duty imposed upon a board to be granted when all the standards for the issuance are met. Hamptons, LLC v. Rickenbach, 98 A.D.3d 736, 737 [2d Dep’t 2012]. Here, the Town’s standards for considering and granting Special Exceptions are set forth in Town Code §§ 280-142 and 280- 143. For the reasons stated in the Memorandum in Support of the Application, dated November 28, 2022 (the “November Memorandum”), KCE satisfies the Special Exceptions set forth in Town Code §§ 280-142 and 280-143. Further, unlike Public Utility uses proposed in the Agricultural Conservation zone and other low-density residential districts in the Town, there is no requirement that KCE demonstrate that the proposed public utility improvements are “necessary to serve areas within the Town”. (Compare Town Code § 280-13(B)(6) to 280- 62(B)(5)). Moreover, a municipal board is required to issue a Special Exception “unless reasonable grounds exist for its denial, e.g., that the use, although permitted, is not desirable at a particular location.” Holbrook Assoc. Dev. Co. v. McGowan, 261 A.D.2d 620, 621 [2d Dep’t 1999]. This determination, however, cannot be based on conclusory findings that the proposed use itself is undesirable. Id. Further, the denial cannot be predicated on characteristics that are inherent in the operation of the use permitted by the Special Exception since this is contrary to the zoning plan. Id. II.Decisions of Zoning Boards of Appeals are Precedent Under New York Law: 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 3 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). Consistent with the findings made by this Board in the aforementioned May 6, 2021 decision regarding the application of Suffolk County Energy Storage II LLC, this Project involves previously cleared land in an industrial zone, a BESS use that provides a “public benefit” that will not generate “noxious contaminants or byproducts associated with other uses legally permitted” in the industrial zoning district, serves a “public utility function to enhance LIPA’s local grid reliability” while displacing peaker plants with “non-polluting green infrastructure technology that will contribute to the proliferation of renewable energy consistent with New York State’s Climate Leadership Community Protection Act”, while not creating traffic impacts, generation of liquid or sanitary waste and no odor or air emissions, a use “as a designated clean, green technology, is far less impactful than other industrial uses that are permitted” in the industrial zone, a use that is compatible with adjacent commercial and industrial developments, an applicant that has agreed to buffer the use from the abutting roadway and other areas where the Property is presently visible from the public, a use that will be 4 constructed in accordance with applicable Fire and Building Codes subject to review by the Town Fire Marshall, including a connection with the Suffolk County Water Authority for fire suppression use and will require Town Engineer approval demonstrating compliance with Town Code Chapter 236. (See Exhibit B to the November Memorandum at Pages 5-7 and the Expanded Environmental Analysis at Pages 3-9, 11-22 and Appendix B). Moreover, the subject property is superior to the land located at 69430 Main Road, Greenport, NY (the “Greenport Parcel”) for which the Special Permit was granted to Suffolk County Energy Storage II LLC to permit a BESS use as a public utility pursuant to the May 6, 2021 decision of this Board. The Greenport Parcel contains a Town regulated freshwater wetland, as well as poor draining soils that increased the potential for flooding and surface runoff. (See Exhibit B to the November Memorandum at Page 2). As demonstrated by the Expanded Environmental Analysis filed with this application, the Project will not generate impermissible stormwater runoff and the Property contains no wetlands, is adjacent to no wetlands and is not in a flood zone (see Expanded Environmental Analysis at Pages 22-23, Appendix A at Page 11 and Appendix B at Page 5). The development of the Greenport Parcel was deemed to be inconsistent with the Town’s Local Waterfront Revitalization Program (“LWRP”) policy standards by the Town’s LWRP Coordinator (see Exhibit B to the November Memorandum at Page 1), while the Project was determined to be consistent with such policy standards by the Town’s LWRP Coordinator by letter dated October 14, 2022. Further, the Greenport Parcel is located along a New York Scenic Byway. (See Exhibit B to the November Memorandum at Page 2), while the Property is not. (See Expanded Environmental Analysis, Appendix A at Page 13). A portion of the Greenport Parcel is located within a New York State Department of State designated Significant Fish and Wildlife Habitat. (See Exhibit B to the November Memorandum at Page 4), while no portion of the Property is 5 located within such habitat. (See Expanded Environmental Analysis, Appendix B at Page 5). The Greenport Parcel was also adjacent to a recreational area, hiking trails, preserved land, a motel and miniature golf course. (See Exhibit B to the November Memorandum at Page 5). The Property is adjacent to no recreational uses, preserved land or lodging. (See Exhibit A hereto). III.Alternative Uses Permitted at the Site “As of Right” Could Have a Greater Impact than the Proposed BESS: Consistent with the findings made by this Board in its May 6, 2021 decision concerning the application of Suffolk County Energy Storage II LLC, the Project is far less intensive than what is permitted as of right at the Property. Relative to visual impacts, the nearest structures are located more than 1,100 feet from Oregon Road, with the tallest and, thus, most visible structures and several hundreds of feet from Oregon Road. Moreover, since filing, KCE has agreed to site all utility lines underground, thus removing the above ground transmission lines. As a result of this change, the four (4) lightning masts that were mounted on the Point of Interconnection (“POI”) substation H-frame, will be replaced by free standing lightning masts to the sides of the POI substation, which will no longer have an H-Frame. This modification reduces the height of the substation to a Code Compliant height. The only structures that require a height variance are narrow in diameter lightning masts. Given the great distance from neighboring residents and the buffers, the Project would be less visible than alternative as of right developments. Such as of right developments, include private and public warehouses, such as those located immediately to the east and northeast of the property along Oregon Road, material storage, contractor yards and office buildings. All of these uses exist in the surrounding industrial zoned area,generally, defined by the boundaries of Depot Lane, Cox Lane, Middle Road and Oregon Road, and all such uses are located far closer to the abutting roadways than that proposed by KCE here as can be seen on the Aerial Photograph of the portion of Cutchogue, 6 NY bounded by Depot Lane, Cox Lane, Middle Road and Oregon Road annexed hereto as Exhibit A. The Project would be also less visible than the existing neighboring warehouses, the Cutchogue Business Center located on a property approximately 700’ to the northeast of the Property along Oregon Road, as well as other uses within the Industrial zone along Depot Lane and Cox Lane. Further, each of the above noted use permitted “as of right” at the Property and existing in the area immediately surrounding it, produce daily traffic when in operation, have sanitary discharge and trash generation, while the Project is unmanned and monitored remotely. IV.The Property’s Existing Zoning is Consistent with the Town Code, Town Zoning Map, Development of the Area Pursuant to the 1962 Change of Zone for the Subject Property and Abutting Parcels, as well as the Comprehensive Plan: As noted above, the Town Code permits public utility uses in the Industrial Zone pursuant to § 280-62(B((5). The Property is zoned Industrial as noted on the copy of the Town Zoning Map for Cutchogue attached hereto as Exhibit B. Pursuant to Town Law § 263, zoning ordinances for Townships must be made in accordance with a comprehensive plan. The Second Department defined a comprehensive plan in 1991 to be “a compilation of land use policies that may be found in any number of ordinances, resolutions and policy statements of the Town.” Osiecki v. Town of Huntington, 170 A.D.2d 490, 490-491 [2d Dep’t 1991]. The Court of Appeals has held that “these policies may be garnered from any available source, most especially the master plan of the community, if any has been adopted the zoning law itself and the zoning map.” Udell v. Haas, 21 N.Y.2d 463, 474 [1968]. Here, the Town Comprehensive Plan was recently readopted in 2020. As noted in the Expanded Environmental Assessment filed with this application, in the Comprehensive Plan, there was no recommendations to rezone the Property or the surrounding parcels, nor any 7 recommendations as to the use of such parcels (see Expanded Environmental Analysis at Page 7). Further, there were no recommendations concerning the Property in the 2005 Hamlet study for Cutchogue. (Id.) As more fully described in the Expanded Environmental Assessment filed with this application, the Town also adopted a January 2000 Farmland Protection Strategy that recommended the preservation of certain farmland in the Town, but did not designate the Property for preservation. (Id.) Finally, as noted throughout this Supplemental Memorandum, the Property is zoned Industrial on the Town’s zoning map, which zoning allows for industrial uses, including public utility uses, at the Property. The Property was rezoned to Industrial pursuant to a 1962 application to rezone the then farms, sand pits and cooperative labor camps of the Harris, Glover, McBride, Pietrewicz, Szawinski and Zuhoski families. (A copy of the 1962 Change of Zone application is attached hereto as Exhibit C). The Property is the sole remaining parcel within the 1962 Change of Zone application that has not been converted to an industrial or municipal use. Moreover, since the 1962 Change of Zone application, the lands surrounding the 1962 Change of Zone area owned by those identified as Pietrewicz, Wickham and Zuhoski have all become and/or remained zoned Industrial and developed with industrial and/or commercial uses. (See attached 1970 aerials annexed hereto as Exhibit D, as well as Exhibits A-C). The neighboring lands identified on the 1962 Change of Zone Map as belonging to Krupski and Goodwin have also been zoned for industrial uses and are used for a common sod farm use. (See Exhibits A-D). The existing uses in the Industrial zones in the area are varied. The center of this area is dominated by the capped Town landfill, the capped mounds of which are visible behind the subject property from Oregon Road. (See attached site photographs annexed hereto as Exhibit E). Along Oregon Road, in the Light Industrial Park / Planned Office Park District, is an abutting Sod Farm, which takes up the western portion of the south side of the frontage along 8 Oregon Road in this area. (See Exhibit A). The Property is located in the middle of this frontage. 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 a new self-storage warehouse complex, including several large storage buildings, which improvements preclude vehicles 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 F; see also Exhibit A). 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. (See Exhibit A). Beyond that, at the corner of Oregon Road and Cox Lane is the Cutchogue Business Center, a multi-tenant office facility. (Id.) Along Cox Lane, there are, among other things, the North Fork Sanitation Transfer Station, contractor yards, Corazzini Asphalt and a shopping center at its intersection with Middle Road. (Id.). Proceeding along Middle Road, there is a contractor yard, which includes a cell tower that is visible from Oregon Road beyond the subject property, the Town landfill, residential and religious uses, followed by the Town’s mulching facility and a self-storage facility. (Id.) At the corner of Depot Lane and Middle Road, there is an outdoor storage facility, which is screened by evergreens. Continuing along Depot Lane, there is another multitenant office building and the Cutchogue Materials and Recycling Facility. (Id.) This is followed by the Sod Farm, beyond which is the Mattituck Sanitary Service, which is setback less than half the distance that the BESS is proposed at, and as will be the case here, is well screened behind evergreen plantings. (Id.) Any change of use of the Property will change the viewshed from Oregon Road. This, however, was also true when a neighboring home and farm abutting the Property was recently 9 demolished in favor of a new multi-building self-storage facility. (Compare Exhibits A and D). It was further 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 replacement of the agricultural uses to the north of the abutting sod farm with single-family residences and the elimination of all farm uses to the northeast of the property along the southside of Oregon Road. (Id.) Indeed, only approximately one / third of the lands bordering Oregon Road between Depot Lane and Cox Lane have active farming visible along both sides of the roadway. (See Exhibit A). V.The Special Exception Does Not Adversely Affect Properties and Zones Across Oregon Road: At the December 1, 2022 hearing, Mr. Hill requested that this Board consider the impacts to the parcels and zones across Oregon Road, in addition to those of the adjacent parcels. The Town Code provisions for the General Standards for Special Exceptions contained in in Town Code § 280-142 require a determination by this Board “[t]hat the use will not prevent the orderly and reasonable use of adjacent properties or of properties in adjacent use districts”, and “[t]hat the use will not prevent the orderly and reasonable use of permitted or legally established uses in the district wherein the proposed use is to be located or of permitted or legally established uses in adjacent use districts”. (Town Code § 280-142(A) and (B)). Further, the Town Code provisions for Special Exceptions contained in in Town Code § 280-143 require this Board to consider “[t]he necessity for bituminous-surfaced space for purposes of off-street parking of vehicles incidental to the use and whether such space is reasonably adequate and appropriate and can be furnished by the owner of the plot sought to be used within or adjacent to the plot wherein the use shall be located” and “[w]hether adequate buffer yards and screening can and will be provided to protect adjacent properties and land uses from possible detrimental impacts of the proposed use.” (Town Code § 280-143(H) and (N)). 10 All parcels located across Oregon Road are in the Agricultural Conservation Zone. Only one parcel is directly across from the subject property, Tax Lot 1000-83.-2-16.1, which is an active farm that is beneficially owned by the same family (the McBride family) that owns the subject Property. (See the Town Assessment Roll for Tax Lot 1000-83.-2-16.1 annexed hereto as Exhibit G). The Agricultural Conservation Zone allows for farm uses and single-family residence uses, which currently take up the entirety of the northern frontage along Oregon Road. (Town Code § 280-13(A)(1)-(2) and see Exhibits A-B). Other permitted uses in such zones are governmental uses, as well as small wind energy systems or aquaculture operations on parcels of at least seven (7) acres and wineries on not less than 10 acres. (Town Code § 280-13(A)(3)-(5) and (7)). The acreage for wind energy systems and wineries effectively limit the potential for these uses to the remaining farmland and the existing single-family residences are, effectively, the only “as of right” principal uses of such lands. The proposed use will not prevent the continued orderly and reasonable use of such lands in their zoning district, nor potential uses of these lands. The Project also will be serving a public utility function as more fully noted in the November Memorandum. The project’s compliance with Town Code § 280-143(H) is not affected by parcels located to the north of Oregon Road. Further, the Project’s compliance with Town Code § 280- 143(N) as to the parcels located across Oregon Road is fully addressed in the November Memorandum, which also addresses Code Compliance to the neighbors across Oregon Road with respect to Town Code §§ 280-142(E) and § 280-143(B). Moreover, the proposed BESS, itself, is also setback considerably farther from residential uses, as well as the abutting roadway, than that approved at the Greenport Parcel. (See Conceptual Site Plan and Aerial Photograph for the Greenport Parcel annexed hereto as Exhibit H). 11 VI.The Project Does Not Pose a Risk to the Safety of the Town: As noted at the December 1, 2022 Public Hearing, as well as referenced in the written request for an adjournment of the close of the public record submitted to the Office of the Zoning Board of Appeals on January 4, 2023, this application will be supplemented with a third-party prepared Hazardous Mitigation Analysis that will address, among other things, concerns raised to the Zoning Board of Appeals regarding what are the potential impacts on ground water and air quality that could occur in the unlikely event that a fire occurs at the facility. Here, KCE notes that Mr. Hill’s comparison of BESS lithium-ion batteries to those used in electric cars / bikes is an apples-to-oranges comparison, as the batteries used in BESS facilities go through different testing and have different requirements from vehicle batteries. Further, unlike electric cars and bikes, the BESS module is equipped with a fire containment system. VII.The Project has been Designed to Avoid Noise Impacts: While concerns regarding noise were raised by Mr. Hill, KCE has already provided the Town with a predicted sound modeling analysis prepared by a third-party expert, Acentech, showing that the Project will comply with the Town's Noise Code §180-6 once completed. 12 VIII.Conclusion For the foregoing reasons and those noted in the November Memorandum, KCE submits that the Project complies with the Special Exception standards of the Town Code. Accordingly, KCE, respectfully, requests that the ZBA grant the requested Special Exception to permit the proposed BESS as a Public Utility use. Dated: January 18, 2022 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 Aerial Photograph of the Portion of Cutchogue, NY Bounded by Depot Lane, Cox Lane, Middle Road and Oregon Road Exhibit B Town Zoning Map for Cutchogue Cutchogue Cutchogue Mattituck Peconic New Suffolk Route 25 O r e g o n R d Cox LnDepot LnC o u n t y R o a d 4 8Alvahs LnMill LnBr i dge LnElijahs LnNew Suffolk AveRoad DSkunk LnNassau Point RdNew Suffolk RdPe qua s h Av e Vanston RdReeve RdWickham Ave Beebe DrRoad BSt ill wa t e r Av e Park Ave Harbor LnLittle Neck RdEugenes RdDignans RdL e s lie R d E Mill Rd W Creek AveHi ghl and RdCa b o t s Wo o d s Rd Marratooka RdJackson St St er l i ng LnHaywaters RdMoores LnDuck Pond RdS o u n d v i e w A v e Fairway DrWest Rd Mason Dr Sterling Rd Pine Tree RdGabriella CtLocust AvePark RdMonsell LnDonna DrTheresa DrCases LnDeep Hole DrWickhams DrVillage LnManor Hill LnCa r di na l Dr King St East RdTrac k Av e Dean DrMarratooka LnG l e n C t A RdCorporate RdHorseshoe DrOak Rd B rid le L n A b o r n L n Lilac LnBaxters ROWDenkel LnG RdThis map is intended for general reference and discussionpurposes only, and is not to be used for surveying, legal interpretation or jurisdictional boundaries or other precise purposes. No warranties are made, expressed or implied concer ning the accuracy, completeness, reliability, or suitability for any other purposes of the data or informationcontained or furnished in connection herewith. CutchogueZoning Map Prepared byTown of Southold Geographic Information SystemApril 29, 2016Suffolk County Real Property Tax Service AgencyAREIS and Tax Map Copyright 2016,County of Suffolk, NY ² 0 10.5 Mi le Legend HamletCenter Zoning AC B HB HD LB LI LIO MI MII R-40 R-400 R-80 RO RR Protected Exhibit C 1962 Change of Zone Application for the Property and Neighboring Parcels Exhibit D 1970 Aerial Photograph of the portion of Cutchogue, NY bounded by Depot Lane, Cox Lane, Middle Road and Oregon Road Exhibit E November 28, 2022 Photographs of the Property from Oregon Road Exhibit F November 28, 2022 Photograph of the Neighboring Self-Storage Facility from Oregon Road Exhibit G Town Assessment Roll for Tax Lot 1000-83.-2-16.1 19 Exhibit H Conceptual Site Plan and Aerial Photograph for the Greenport Parcel 220000fftt220000fftt220000fftt220000fftt220000fftt Find tax map # or address -72.384 41.092 Degrees + – TTaaxx MMaapp IInnqquuiirryy with ArcGIS Web AppBuilder   11000000--4455..--55--11 ACREAGE BTCAMP PROTECTED CF USE AD ZONING ZSPLIT SPLITCAT ZACRES FWET MWET Zoom to