Court Confirms that Energy Storage is Public Utility Infrastructure for Zoning Purposes
New York courts have long recognized that public utility infrastructure must be considered under different variance standards given that regional and state needs for such infrastructure outweigh purely local considerations. Under the Public Utility Variance (“PUV”) standard that the New York Court of Appeals established in Matter of Consolidated Edison Co. of N.Y. v. Hoffman, 43 N.Y.2d 598 (1978), where a proposed facility demonstrates that it is a public necessity required to render safe and adequate service, that there are compelling reasons, economic or otherwise, which make it more feasible to construct the project where proposed than an alternative, and where the intrusion or burden on the community is minimal, the required showing is correspondingly reduced. See generally Hoffman. See also our earlier alert on the PUV standard.
Courts have previously treated wireless telecommunications facilities (Cellular Tel. Co. v. Rosenberg, 82 N.Y.2d 364 (1993), water-system infrastructure (United Water New Rochelle v. Eastchester ZBA, 254 A.D.2d 490 (2d Dep’t 1998)), electrical substations (Niagara Mohawk Power Corp. v. City of Fulton, 8 A.D.2d 523 (4th Dep’t 1959), wind farms (Alle-Catt Wind Energy LLC v. Town of Farmersville, New York, et al., Index No. 89872 (Sup. Ct. Cattaraugus Cnty. June 26, 2021)), and solar farms (Matter of Freepoint Solar LLC v. Town of Athens ZBA, 234 A.D.3d 127 (3d Dep’t 2024)) as public utilities for zoning purposes. Now for the first time a state court has confirmed that energy storage systems are also to be evaluated under the PUV standard.
In the Matter of Yorktown ESS, LLC v. Town of Yorktown ZBA, Index No. 58158/2026 (Westchester Cnty. Sup. Ct. July 16, 2026), the Town of Yorktown had enacted a ban on utility-scale battery energy storage systems. The project developer submitted a use variance application seeking consideration of its battery project under the PUV standard. The ZBA refused to apply the standard, instead applying the traditional statutory test for use variances and denied the application under this standard. Supreme Court nullified the decision and remanded to the ZBA for re-consideration under the PUV standard. The Court found the PUV standard applied because
the record demonstrates that the proposed BESS facility functions as an integral component of energy-system infrastructure essential to the safe and adequate operation of the electric grid, is subject to extensive State regulation, and must be sited in locations dictated by utility-grid capacity-characteristics that place it squarely within the category of public-utility uses governed by the [PUV standard] articulated in Hoffman and its progeny. Petitioner’s submissions show that the facility provides essential grid services by storing and dispatching electricity, enhancing reliability, supporting renewable-energy deployment, and reducing peaker-plant emissions.
Yorktown ESS at *4 (brackets added).
The Court held that the battery system at issue was “materially indistinguishable from the utility-system operations recognized in Hoffman, Niagara Mohawk, United Water, and Freepoint Solar as constituting public-utility uses.” Id. As such, the Court held that the PUV standard was mandatory and not discretionary for the battery project. Id. at *5. A copy of the decision is available here.
Hodgson Russ Takeaways
Battery energy storage is an essential element to achieving the state’s energy and climate goals, and the systems provide significant benefits to the electric grid and savings for ratepayers. But efforts at developing systems have been stymied by over 100 moratoria across the state and a growing set of bans on such facilities. Judicial confirmation of the appropriate application of the PUV standard for these projects and that they cannot be zoned out where, as in Yorktown, a public need is demonstrated, will hopefully assist in clearing up barriers and encourage communities to work with rather than against developers.
If you have any questions about the PUV standard applicable to renewable energy projects or land use and permitting generally for renewable projects, please contact Daniel Spitzer (716.848.1420), Charles Malcomb (716.848.1261), Henry Zomerfeld (716.848.1370), or a member of our Renewable Energy Practice.
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