AriSEIA Sends 3rd Letter to City of Surprise on BESS Ordinance

City of Surprise
Community Development
16000 N. Civic Center Plaza
Surprise, AZ 85374
 
RE: City of Surprise Battery Energy Storage System (BESS) Ordinance (Chapter 106)
 
Dear Community Development Staff,
 
The Arizona Solar Energy Industries Association (AriSEIA) appreciates the opportunity to provide continued comments on the City of Surprise draft Battery Energy Storage System (BESS) ordinance. AriSEIA is the statewide trade association representing solar, energy storage, and electrification companies operating across Arizona. We have previously provided written comments to the City on November 14, 2024, and February 18, 2024, and appreciate the City’s ongoing engagement on this important topic.
 
After reviewing the most recent draft ordinance, we respectfully submit the following comments. While we acknowledge improvements in certain areas, several significant issues remain unresolved. These issues relate to scope, applicability, internal consistency, technical alignment with nationally adopted standards, and practical implementation.
 
1. Applicability and Scope of the Ordinance
The draft ordinance does not clearly and unambiguously limit its applicability to utility-scale, grid-connected battery energy storage systems. As written, the ordinance does not expressly exclude behind-the-meter residential or commercial battery systems.
 
This creates material ambiguity as to whether the ordinance could apply to:

• Residential battery systems installed in garages or attached structures,
• Commercial batteries paired with rooftop solar at small businesses,
• Batteries installed for onsite resiliency or backup power.

 
Zoning ordinances are interpreted based on their plain language. Reliance on enforcement discretion to narrow applicability is insufficient and exposes the City to appeals, inconsistent enforcement, and potential legal challenges. AriSEIA has raised this concern in prior letters, and it remains unaddressed.
 
The ordinance should clearly state that it applies only to utility-scale, grid-connected battery energy storage systems and does not apply to residential or commercial behind-the-meter installations. This clarification is essential to avoid unintended consequences and ensure the ordinance functions as intended.
 
2. Zoning Classification and Use Category
The ordinance establishes a standalone “BESS” zoning district and use category. This approach unnecessarily isolates energy storage from other forms of energy infrastructure that are often complementary in generating electricity and improving grid reliability.
 
AriSEIA recommends that the zoning district and use category be titled “Energy,” rather than “BESS,” and that utility-scale solar generation be included as a permitted or accessory use within the same category. This approach is consistent with Maricopa County and other Arizona jurisdictions and avoids the need for future piecemeal amendments as energy technologies continue to evolve.
 
3. Setbacks, Including the 1,500-Foot Residential Setback
The proposed 1,500-foot setback from residential properties remains a significant concern. This setback is not supported by National Fire Protection Association (NFPA) standards, peer jurisdiction practices, or empirical safety data. Nationally, BESS-specific setbacks typically range from 50 to 150 feet.[1]
 
In addition, the ordinance does not consistently specify from what point setbacks are measured. Where setbacks are imposed, they should be measured from the BESS structures themselves to the nearest residential dwelling unit, not from property lines or from an overall project boundary that may include solar generation. Excessive setbacks that are not tied to adopted safety standards unnecessarily constrain site availability, reduce project feasibility, and do not provide demonstrable safety benefits.
 
4. Internal Container Separation Distances
The draft ordinance requires a 10-foot separation between battery containers. This requirement exceeds NFPA 855, which allows a 3-foot separation for remote facilities. Deviation from nationally adopted fire codes without a technical justification creates inconsistency, increases costs, and does not improve safety. Separation between containers should be governed by NFPA 855, not by a locally imposed standard that is more than three times more restrictive.
 
5. Noise Standard
The ordinance imposes a maximum noise level of 60 dBA at the nearest existing dwelling unit. This threshold is unusually low for utility or industrial infrastructure and is often equivalent to ambient background noise levels in urban and suburban environments.
 
The ordinance does not distinguish between daytime and nighttime operations, does not account for existing ambient noise, and does not explain why battery energy storage systems should be subject to a more restrictive standard than other permitted infrastructure uses. If a noise standard is retained, it should be aligned with the City’s general noise ordinance, allow for mitigation, and reflect real-world operating conditions.
 
6. Perimeter Walls, Landscaping, and Associated Setbacks
The ordinance requires perimeter walls and landscaping and further requires these features to be set back 150 feet from other property lines. This requirement lacks a clear nexus to safety, aesthetics, or land-use compatibility.
 
Perimeter walls do not improve fire safety, and landscaping setbacks of this magnitude do not enhance screening or community protection. Instead, they significantly reduce developable area and may render otherwise suitable parcels unusable. In addition, the ordinance does not provide flexibility for circumstances where walls and landscaping are unnecessary for aesthetic purposes or where irrigation is not advisable due to water conservation concerns.
 
AriSEIA recommends adding administrative flexibility allowing staff to approve alternative perimeter treatments, including fencing without walls or reduced landscaping, where visual impacts are minimal, water use should be avoided, or site conditions warrant an alternative approach. Similar provisions have been successfully adopted by Buckeye and Maricopa County.
 
7. Timing and Sequencing of Required Plans and Studies
The ordinance requires multiple plans and studies, including emergency mitigation plans, noise studies, security plans, commissioning plans, and decommissioning plans, but does not clearly specify when each must be submitted or approved. This lack of clarity creates uncertainty for applicants and staff and may result in unnecessary delays or duplicative submissions. AriSEIA recommends the following clarifications:

• Commissioning plans should be required prior to building permit issuance.
• Emergency mitigation, noise, security, and decommissioning plans should be required prior to issuance of a certificate of occupancy.
• The ordinance should allow updates to plans when technology-specific details are not available at earlier stages.

 
8. Waivers and Administrative Flexibility
The ordinance limits the ability to modify or waive provisions to City Council action only. This approach is unnecessarily rigid and inconsistent with how similar ordinances are administered elsewhere. AriSEIA continues to recommend inclusion of an administrative waiver or modification process that allows staff to approve reasonable deviations when a project meets the ordinance’s safety and compatibility objectives. This flexibility improves outcomes without compromising public safety.
 
Conclusion
AriSEIA supports reasonable, data-driven regulation of battery energy storage systems. However, the current draft ordinance includes provisions that are internally inconsistent, not aligned with nationally adopted standards, and insufficiently clear as to scope and applicability.
Addressing the issues outlined above will result in an ordinance that is safer, clearer, more defensible, and more workable for the City, applicants, and the community.
 
We appreciate the opportunity to continue engaging with the City of Surprise and look forward to working collaboratively toward an ordinance that reflects best practices and supports responsible energy infrastructure development.
 
Respectfully submitted,
Autumn Johnson
Executive Director
AriSEIA 
(520) 240-4757
[email protected]

[1] American Planning Association, Zoning Practice, P.10 (Mar. 2024), available here https://planning-org-uploaded-media.s3.amazonaws.com/publication/download_pdf/Zoning-Practice-2024-03.pdf.

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