By now, most New Yorkers have heard about battery energy storage systems. If there is not already a project proposed where you live, there is likely one coming.
The reasons are straightforward. Demand for electricity is only growing from electrification, new industrial uses, and energy-intensive projects (i.e. data centers). But New York has mandated a transition away from fossil fuels and toward renewable electricity. Solar and wind generation are intermittent. Enter battery energy storage systems, commonly called BESS, which allow electricity to be stored when generated and dispatched when needed. New York has set a statewide goal of installing 6 gigawatts of energy storage by 2030 as part of its broader statutory goal of obtaining 70% of its electricity from renewable sources by 2030 and zero-emission electricity by 2040.
That policy has translated into an increasing number of BESS proposals before town boards, planning boards, and zoning boards throughout New York. Municipalities are trying to determine where these facilities belong and how they should be regulated. Developers are looking for sites with access to the electrical grid. Landowners are being approached about leases. Nearby property owners are asking questions about safety, setbacks, and land-use impacts. These projects are increasingly becoming part of the ordinary business of local government.
Against that backdrop, a recent decision from the Westchester County Supreme Court answers an important zoning question: for purposes of obtaining a zoning variance, is a battery storage facility simply another private commercial development, or is it public utility infrastructure?
The Court held that it is public utility infrastructure.
The Public Utility Variance Standard
Ordinarily, obtaining a use variance in New York is intentionally difficult. Under Town Law § 267-b, for example, an applicant generally must establish unnecessary hardship, including that the property cannot yield a reasonable return under permitted uses, that the hardship is unique, that the proposed use will not alter the essential character of the neighborhood, and that the hardship was not self-created. Public utilities are different.
Nearly fifty years ago, New York’s highest court found that the ordinary unnecessary-hardship test does not make sense when applied to public utility infrastructure. A utility may need to be placed in a particular location because of the infrastructure it serves, even though the property itself could theoretically be used for something else. Instead, the utility must demonstrate a “public necessity” for the facility and “compelling reasons,” economic or otherwise, making the proposed location more feasible than available alternatives. Where the burden on the surrounding community is minimal, the required showing is correspondingly reduced. See Matter of Consolidated Edison Co. of New York v. Hoffman, 43 N.Y.2d 598 (1978). To be clear, in practice this standard is easier for a developer to meet and local bodies are regularly overturned for denying projects that should be granted the benefit of this reduced standard.
This doctrine was later expanded in Matter of Cellular Telephone Co. v. Rosenberg to include cellular telephone infrastructure and confirmed it applies not merely to modifications of existing utility facilities, but also to the siting of entirely new facilities. 82 N.Y.2d 364 (1993). The Court reiterated that a zoning board cannot exclude necessary utility infrastructure from a community simply by applying the ordinary rules applicable to private land uses.
More recently, in Matter of Freepoint Solar LLC v. Town of Athens Zoning Board of Appeals, an appellate court sitting in Albany applied the doctrine to a solar energy facility. 234 A.D.3d 127 (3d Dep’t 2024). Importantly, the Court considered New York’s statewide renewable-energy policy a “public necessity.” It also recognized a practical reality: these projects cannot necessarily be moved to any convenient parcel. Grid capacity, interconnection approvals, and existing transmission infrastructure substantially restrict where a project can actually be built.
Yorktown Extends the Rule to Battery Storage
That brings us to Matter of Yorktown ESS, LLC v. Town of Yorktown Zoning Board of Appeals, No. 58158/2026 (Sup. Ct., Westchester County 2026).
Yorktown ESS proposed a 5-megawatt battery energy storage facility. During the municipal review process, the Town first imposed a moratorium and later enacted a prohibition affecting the project. The developer therefore sought a use variance and argued that its application was governed by Hoffman and the public utility variance standard. The ZBA disagreed, applied the ordinary unnecessary-hardship test under Town Law § 267-b, and denied the application.
The Supreme Court annulled that determination, concluding that the BESS facility was an integral part of the electric grid. It stores and dispatches electricity, improves grid reliability, supports renewable generation, and must be located where utility-grid capacity permits interconnection. Those characteristics placed BESS within the same category of infrastructure previously recognized as a public utility. The Court held that application of the public utility variance standard was mandatory and remanded the application to the ZBA for reconsideration under the correct standard.
The decision did not order that the project be approved. An applicant must still establish the elements of the public utility standard, and local governments retain their authority over site-specific land-use and environmental issues. But the distinction is significant. The question is no longer simply whether a private property owner can satisfy the traditional test for relief from local zoning. The board must also account for the broader public need served by the infrastructure and the practical constraints governing where that infrastructure can be located.
Safety Standards Have Also Changed
The principal public concern surrounding BESS development has been fire safety. Those concerns are not hypothetical. In 2023, significant incidents occurred at battery storage facilities in East Hampton in Suffolk County, Warwick in Orange County, and Chaumont in Jefferson County. The Chaumont incident burned for several days. The three incidents prompted Governor Hochul to convene an interagency fire-safety working group to examine the events, inspect operating projects and recommend changes to New York’s safety requirements.
That process resulted in substantial changes to New York’s Uniform Fire Prevention and Building Code. The updated 2025 Fire Code became effective December 31, 2025 and incorporates specific requirements directed at energy storage systems. Among other things, the new framework requires independent peer review for qualifying BESS projects and strengthens requirements involving emergency response planning, monitoring, fire detection, site information, emergency personnel and coordination with local first responders.
What Comes Next
Yorktown should be viewed as part of a broader direction in New York law and policy. The State has established aggressive energy-storage targets, created substantial programs to encourage deployment, strengthened the fire-safety rules governing these facilities, and now has a trial-court decision recognizing battery storage as public utility infrastructure for zoning purposes.
BESS projects will continue to present difficult local questions. A project that serves a statewide public purpose can still create legitimate issues concerning its particular location, design and effects on neighboring property. Municipalities must regulate these facilities within an increasingly developed body of state law. Developers and landowners must understand both the opportunities created by the public utility standard and the local approval process that remains in place. Nearby property owners must understand what issues local boards may properly consider and which arguments state law has made considerably more difficult.
Battery storage is no longer a novel land use that municipalities can treat in isolation. It is part of New York’s electrical infrastructure, and New York law is beginning to treat it accordingly.
For questions concerning renewable energy projects, zoning and land-use approvals, or municipal regulation, the advice of an experience attorney can be an indispensable resource.
Written by Christopher Baiamonte.