Posted by: Patricia Salkin | February 1, 2021

NY Appellate Court Concluded Town Planning Board Decision to Issue a Special Use Permit to a Solar Developer is Rational and Valid

This post was authored by Olena Botshteyn, Esq.

Residents of the Town of Duanesburg (“Town”) sued the Town Planning Board for issuing a special use permit for a large-scale solar project to Eden Renewables (“Eden”), a solar developer.

In May 2018, Eden applied to the Town Planning Board for a special use permit and site plan approval to construct two five-megawatt solar systems, in accordance with Local Law No. 1. The Planning Board declared itself as a lead agency in the environmental review process pursuant to State Environmental Quality Review Act (SEQRA) and commenced such a review. The Planning Board further held a public meeting, where petitioners that reside in the adjacent properties presented their concerns about the proposed project. Eden responded to the comments and provided additional information on the project. In September 2019, the Planning Board issued a negative declaration under SEQRA, approved the site plan and issued a special use permit. Petitioners are seeking to annul the Planning Board’s determination and declare that the permit was arbitrarily issued. The case was transferred to the Appellate Division of the Supreme Court, since the trial court found that petitioners raised the issue of substantial evidence. Although the court of appeals found such transfer to be inappropriate, it retained jurisdiction in the interests of efficiency.

First, the court concluded that the Planning Board did not rely solely on its negative SEQRA determination, when issuing the permit. The Planning Board reviewed the environmental assessment form, letters from state agencies, visual impact assessment, a storm water pollution prevention plan and all the other necessary documents, showing that the project would have minimal impact on plants, animals, vegetation and neighboring properties. The court found that such review process conformed with the standards imposed by the Local Law No. 1 and the zoning ordinance.

The court further concluded that the Planning Board determination had a rational basis. It went on to explain that “a Planning Board may not deny a special use permit based “solely on community objection” and determined that the Planning Board had appropriate evidence that supported its decision. Petitioners’ concern with regard to reflective glare was properly addressed through Eden’s use of the anti-glare coating. Eden also agreed to install a 1,600–foot evergreen barrier on the perimeter to ensure minimal visibility of the project from adjacent properties. Such measures indicated for the court that the Planning Board decision to issue a special use permit was supported by a rational basis and must be confirmed.

Biggs v Eden Renewables, LLC, 188 A,D, 3d 1544 (3d Dept. 11/25/2020)

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