NY Appellate Court Finds Solar Arrays Were Structures Rather than Buildings Pursuant to Town Law

This post was authored by Matthew Loeser, Esq.

Respondents SUN8 PDC LLC and Distributed Sun LLC leased farmland owned by respondent Scott Pinney in the Town of Dryden, Tompkins County in order to construct five separate community solar projects. These community solar projects would use a group of ground-level solar arrays in a central location and provide utility-bill credits to subscribers in the community. In 2017, the Dryden Town Board granted SUN8 a special use permit and site plan approval and respondent Town of Dryden Planning Board approved the preliminary subdivision plat. Petitioners Willow Glen Cemetery Association and Sarah Osmeloski, who both owned land adjacent to the farmland, commenced two separate proceedings to enjoin the issuance of building permits and to challenge the Planning Board’s approval of the preliminary plat. The Supreme Court dismissed both petitions, and petitioners thereafter commenced this CPLR article 78 proceeding seeking to annul the Planning Board’s resolutions. Supreme Court denied the motion and dismissed the petition.

On appeal, petitioners asserted that Supreme Court erred in determining that Town Law § 280–a was inapplicable. As it pertains to this case, Town Law § 280–a (1) provides that “no permit for the erection of any building shall be issued unless a street or highway giving access to such proposed structure has been duly placed on the official map or plan” The trial court noted that the solar arrays met the definition of structure, but not the definition of building, as “they were not covered or enclosed.” Since the solar project did not concern the erection of a building, the court found Town Law § 280–a did not apply to this proceeding. Notwithstanding the above, the court further determined that the record contradicted petitioners’ claim that Lot 1 on the final subdivision plat failed to comply with the frontage and access requirements of Town Law § 280–a and Town of Dryden Zoning Law § 602. Accordingly, the judgement of the Supreme Court of New York was upheld.

Perkins v. Town of Dryden Planning Board, 2019 WL 2127373 (NYAD 3 Dept. 5/16/2019)