On July 17, 2026 the Westchester County Supreme Court held that a proposed 5 MW Battery Energy Storage System (BESS) was public utility infrastructure subject to the less stringent “public necessity” test when considering an application for a variance. See Yorktown ESS LLC v. Town of Yorktown ZBA. This is the first decision in the state holding that BESS is a public utility, which is a big win for advancing renewable energy development across the state.

Beginning in 1978 with the landmark Consolidated Edison Co. v. Hoffman decision, the Court of Appeals held that when a public utility provider seeks approval for facilities necessary to furnish safe and adequate service to its customers, the utility may not be excluded from the community. Over the years, this doctrine has been expanded to include not only traditional electric and gas utilities, but to also include infrastructure that is essential for providing safe and adequate public services. For example, in 1993 public utility protections were extended to wireless telecommunications infrastructure in Cellular Telephone Co. v. Rosenberg, and most recently to solar energy facilities in Matter of Freepoint Solar LLC v. Town of Athens ZBA. Given the comprehensive state regulatory framework and the need to connect to specific transmission or distribution points, application of the public utility standard to BESS is a natural extension of the case law that has developed over the last 50 years.

Generally, energy storage systems help meet the electricity needs of the grid. The systems are sited on existing distribution lines and deliver power directly to homes and businesses in the area, creating local energy resiliency, less expensive power during times of peak demand, and generating private investment which helps modernize the state’s electrical infrastructure while mitigating the cost to the consumer. Yorktown ESS LLC v. Town of Yorktown ZBA will help ensure that BESS is efficiently and evenly deployed across the state, particularly as many communities face moratoria or outright bans. This decision should encourage municipalities to develop reasonable battery energy storage laws to support the responsible deployment of the technology, or they may otherwise lose control of where these facilities are sited in their town, city or village.