New legal territory: Solar developer looks for easier path to approval in New Scotland Hamlet 

— From Google Earth

The developers of a proposed large-scale solar facility in the New Scotland Hamlet along Route 85 are looking for a variance request to be reviewed under a more lax public-utility standard rather than the town’s typical use-variance guideline. 

NEW SCOTLAND — The New Scotland Zoning Board of Appeals remained skeptical of a proposal to place a large-scale solar facility in an area of town that’s been designated for commercial development. 

New Scotland PV, LLC is looking to install a 5-megawatt ground-mounted solar photovoltaic farm at what is being called Zero New Scotland Road, a nearly 75-acre parcel of land in the New Scotland Hamlet located between 1857 and 1891 New Scotland Road that shares a half-mile of property line with the 176-acre Mohawk Hudson Land Conservancy Bender Melon Farm Preserve.

The town recently adopted updates to its 2017 solar law. 

The proposal was first before the board in September, when members raised concerns over the project location and variance requests being made by the applicant. New Scotland PV is an LLC set up by RIC Energy out of Manhattan, which is overseeing the proposal. RIC currently has two solar projects proposed in Knox.

The New Scotland property is owned by Peter Baltis. 

RIC has an 38-month option lease with Baltis worth $82,000; should RIC exercise its option, its lease could run for as long as 35 years. 

RIC is seeking multiple variances for the project, but the focus of the Jan. 24 zoning board meeting was getting its use variance request reviewed under the state’s public-utility standard.

 

“Very current legal issue” 

Chairwoman Erin Casey said the board was dealing with a “very current legal issue,” because she didn’t know how much authority the board had over a privately-owned solar array being a public utility under the law.

Casey said the board had separate questions to deal with: Whether it analyzes the variance under the public-utility standard, and whether the board finds it meets the requirements.

The board’s attorney, Crystal Peck, said solar as a public utility is an “emerging issue.” There have been two lower courts that have determined solar is a public utility, she said. 

“If I’m being perfectly frank ... one of them provided no analysis whatsoever. The other one, which is out of Greene County, did provide an analysis,” Peck said. “I don’t necessarily agree with all of the considerations that the judge put forward. I don’t necessarily think that they looked at everything, or all of the arguments that should be raised in this situation. And there is no appellate review of this yet,” she said of the state’s middle-level courts, which hear appeals from the lowest courts in the three-tiered system.

Peck continued, “So I would not say that this is a clearly decided issue as of yet. It’s not like wireless telecommunications that have been, you know, considered public utilities since the ’90s. It is definitely emerging.”

The public-utility standard, Peck said, has been set by the courts. It’s a reduced standard, she said; “so instead of having to show that unnecessary hardship with those factors that we look at in our code, they have essentially a lower burden that they would need to meet in order to receive a variance.”

For a use variance to be granted, it has to pass four zoning board criteria: 

— The applicant can’t “realize a reasonable return” under current zoning;

— The alleged hardship is unique to the property;

— If granted, the use variance won’t alter neighborhood or district character; and

— The alleged hardship wasn’t self-created.

Peck said she basically agreed with the general rules cited in the application dealing with public utilities. But said she thought there was some question when it came to applying the public-utility standard, stating with telecommunications, for example, “You’re looking for a gap in service.”

Peck said, in order for a telecommunications provider to receive a use variance, it typically would have to show there’s a gap in service that can be filled by their proposal, “and there’s not another feasible or alternate area to put their facility in.”

She said that the only solar case with any analysis, from Greene County, “seemed to imply that that gap [in service] analysis did not have to apply to solar,” which is something Peck didn’t necessarily agree with, nor is it an issue the appellate courts have yet taken up. 

Peck explained to the board it would be looking for whether or not there’s a need for the solar facility; are there alternative sites available; and the need already being fulfilled in the community.

Casey said there’s case law laying out what the standard is for a public utility, but it was less clear whether that exact case law applied directly to the proposal before the board.

“I mean, typically, it’s been applied to things that are more traditional public utilities that are providing services directly to a consumer,” she said. “Here, the solar array is generating electricity, but they are not the transmitter to the public. They are a private entity.”

Casey said she believed the argument RIC was making was that the standard applied to it should be that of a traditional public utility. 

 

RIC’s view

Alicia Legland, RIC’s attorney, told board members, “I agree completely that it is an emerging area. But what’s not emerging is how public utilities are dealt with by municipalities when they’re going through the need for any type of land-use approvals.”

 Legland said the legal decision governing the “easier standard” dictates three benchmarks that have to be met in order for a project to be considered a public utility: 

—  Is the service being provided essential;

— Is the service subject to some kind of public regulation; and

— Is it difficult to get the service to the end consumer.

“Electricity, right? Only goes through the grid,” Legland said. “Same thing with telecom service: You can’t just go to the store and get a different kind, right; you can only use the cell towers that are registered.” She said, if a service met the benchmarks, “then it’s considered a public utility.”

 Legland went on to make the case for solar being a public utility.

She said the “wave of renewables in recent years” faces the “same problem as the original power generation companies from the original [public-utility] standard. It’s the exact same issue.” A solar company like RIC, Legland said, is in the business of selling electricity, which “is absolutely essential.”

Moving to public regulation, Legland said, “no solar company, whether they’re a small solar developer or ConEd themselves, you cannot just plug into the grid like you plug in your iPhone charger.”

She said there’s a lot of regulation and a complex permitting process that solar developers have to go through in order to generate and sell electricity to the grid. “Exactly the same as with ConEd in the Hoffman case,” Legland said, referring to a legal case that set the lower public-utility standard for zoning-board approval of projects. 

She also said zoning boards in Erie, Oswego, and Greene counties have found solar developers in recent years to be public utilities. “Saying that for purposes of variances, solar companies are public utilities,” Legland said. “And they’re not even being litigated over.”

Referring to the benchmark that asks whether solar is a public necessity that’s needed to provide safe and adequate service, Legland said the Greene County legal decision said it didn’t make sense to apply the gap-in-service standard that applied to telecommunications, so it wasn’t an issue.

Addressing RIC being a private company and how it contrasts from a public utility like National Grid or ConEd, Legland said, “Since the ’90s, power generation in the state of New York has been completely deregulated.”

She said no utility provider also generates its own power. “You either generate power and then you transmit it; there’s a utility that owns the transmission, and then they get it to end consumers,” Legland said. “So even ConED, National Grid, they do not generate your power, they get it to you. Other people generate it,” they are separate entities.

 

Siting

After Legland made her case, Casey said the board would need a lot more information about the specific location being proposed (130 postcards were sent out to potential solar facility sites in town and Baltis was the only respondent). “I mean, even if we were to do this under the public-utilities standard, I think you’d have to show it’s a public necessity to build in that location,” she said.

Casey said New Scotland has a lot of open land and a lot of rural communities; it also has a lot of power lines running through it already. “We’re just going to need a lot more convincing, I think.”

She continued, “I think you need to make a more robust showing about why that particular property, which is in this relatively small area, where solar is prohibited … by the decisions made by our town board about the development that we hope our town to have, is a public necessity.”

Legland pushed back on Casey’s siting concerns. 

“Not that siting considerations and the property chosen on site selection and all of that is not irrelevant by any means. But I think the focus primarily is on the service rendered. When you look at this entire body of case law, it’s the service rendered, is that a public necessity,” Legland said. “And that, of course, has been held that electricity is absolutely essential. So I think that’s more so the focus. Not that siting considerations are not relevant, because they absolutely are.”

Casey didn’t disagree with Legland, but she just wasn’t sure if solar was a public necessity. “Because we have other forms of electricity generation.”

 

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