The Town of DeWitt recognizes that BESS are a key component to the viability and promotion of renewable energy sources; however, since the technology of these systems is still in its infancy, there is a significant amount of public concern in regard to the potentially volatile nature of lithium-ion batteries, stemming from fires at three different BESS facilities in the State of New York beginning in May of 2023. The Town Board, Planning Board, and Zoning Board of Appeals of the Town of DeWitt need additional information and assurances about the safety of BESS, including but not limited to best practices for fire suppression and emergency response, ensuring the technology and availability of equipment necessary for local fire departments should a fire occur, precautions to take related to gas emissions and deterring any necessary fire suppression chemicals from impacting groundwater, and the adequacy of location and other standards for siting of BESS.

The Town of DeWitt is specifically concerned about the implementation of BESS in proximity to areas where fires from such facilities could result in substantial harm and damage to property and residents in the Town, and about the adverse environmental impacts that may result from implementing BESS on or in proximity to environmentally sensitive areas and with respect to adjacent properties. The Town intends to study the safety and security of BESS, including thermal runaway, off-gassing and toxicity, stranded energy, ways to prevent fires, prevent by-product contamination, and ensure emergency responders have the necessary training and information to prepare and deploy resources in the event of a fire.

In short, the Town of DeWitt is concerned about the detrimental effects of BESS on the health, safety, welfare and quality of life of its residents and citizens. Given these concerns and the current lack of relevant data and information with respect to these issues, it is appropriate and necessary for the Town Board to enact a six-month moratorium prohibiting the review and approval of applications and issuance of permits for BESS in the Town while these issues are further considered. It is imperative that the establishment of BESS is halted during the term of the moratorium and the establishment of any regulations, rules, laws and/or controls deemed necessary for the safe and orderly development of the Town and protection of the Town's residents and citizens. A moratorium is appropriate and necessary in order to preserve the status quo until new regulations, rules, laws and/or controls are adopted by the Town Board. During the moratorium, the Town may implement such regulations, laws and/or controls as may be deemed necessary to protect the community and further the goals of the Town of DeWitt Comprehensive Plan.

During the term of the moratorium:

The Town Board reserves the right to direct a Codes Enforcement Officer to revoke or rescind any building permit(s), certificate(s) of occupancy or any other permits or certificates issued in violation of this article.

Under no circumstance shall the failure of any board, department, officer or agency of the Town of DeWitt to take action upon any application for any approval(s) constitute approval by default or approval by virtue of expiration of time to respond to such application.

The moratorium imposed by this article shall not apply to small-scale residential BESS with a capacity of 80 kWh or less located in a residential zoning district of the Town of DeWitt.

Applicants for small-scale residential BESS with a capacity of 80 kWh or less shall be required to obtain a development permit from the Town of DeWitt Planning and Zoning Department and formal inspection from the Town of DeWitt Codes Enforcement Office upon installation.

The rules and regulations of the New York State Model Law for Battery Energy Storage Systems shall be used as a guide by the Town of DeWitt Planning and Zoning Department for the purposes of permitting, inspection, and implementation of small-scale residential BESS during the term of this moratorium.

A fine not to exceed $1,000. Each day a violation continues shall be deemed as a new and separate violation; and

A civil action inclusive of injunctive relief in favor of the Town to cease any and all actions which conflict with this article and, if necessary, to remove any construction(s), improvement(s), or related items or by-products which may have taken place in violation of this article.

The Town Board reserves the power and right to vary or adapt the strict application of the requirements of this article in case of unusual or unnecessary hardship depriving an owner of property affected by this article of all reasonable use of the lands involved.

Should any owner of property affected by this article suffer an unusual or unnecessary hardship by way of carrying out the strict letter of this article, the owner of said property may apply to the Town Board in writing for a variation from the strict compliance with this article upon submission of proof of such unusual or unnecessary hardship.

For the purposes of this article, unusual or unnecessary hardship shall not be mere delay in being permitted to make an application for approval(s) or waiting for a decision on an application for a building permit, variance, special use permit, specific use permit, site plan review or any other permit during the term of this moratorium.

Procedure. Upon submission of written application to the Town Clerk by the property owner seeking a variation from the strict application of this article, the Town Board shall, within 30 days of receipt of said application, schedule a public hearing upon five days' written notice in an official newspaper of the Town. At the public hearing, the property owner and any other parties wishing to present evidence with regard to the application shall have the opportunity to be heard, and the Town Board shall, within 30 days of the public hearing, render its decision either granting or denying the application for a variation from the strict requirements of this article. If the Town Board determines that a property owner will suffer unusual or unnecessary hardship by the strict application of this article to a particular property, the Town Board may vary the application of this article to the minimum extent necessary to provide the property owner relief from strict compliance of this article.