KNOX — Solar developer RIC Energy will have to wait at least another month before it learns the fate of its 4.4-megawatt solar project, proposed to the Knox Planning Board last year, while lawyers figure out whether the sudden absence of planning board member Debra Nelson in the middle of a roll-call vote to approve the project invalidated that vote.

Nelson said later a family emergency caused her to leave the March 12 meeting, which she was attending remotely from her home. She was poised to cast the deciding vote but signed off of the video-conferencing platform without explanation, forcing the board to table the vote, according to meeting minutes. 

However, it’s not clear whether the vote was technically completed since a quorum was maintained despite Nelson’s absence, and all of the other six members had cast their votes before the matter was tabled.

The board was voting on whether or not to override the Albany County Planning Board’s disapproval of the project, which would require supermajority approval — or five votes in favor — from the seven-member town planning board. 

The meeting minutes show that, without Nelson’s vote, only four members of the board were in favor of overriding the county recommendation: Chairman Tom Wolfe, Kurt Johnson, William Pasquini, and Ed Ackroyd. Two members — Betty Ketcham and Todd LaGrange — voted against it, leaving Nelson with the power to save or kill the project.

Nelson had previously voted in favor of the project when it needed only a majority vote — four out of seven — for approval. However, she declined to tell The Enterprise after the April 8 meeting how she intends to vote should the project be up for approval again, explaining that the “process is still happening,” and would not reveal how she had planned to vote in March.

Legal views differ

Wolfe explained at the April meeting that the town’s attorney, Michelle Storm, who was not present, believes that the vote is complete and cannot be redone; meanwhile, RIC believes that the extenuating circumstances allow for a mulligan. 

“Our advice from our attorney is that it’s a very unique situation,” RIC Permitting Manager John Reagan told The Enterprise after the meeting, “given the pandemic and someone dropping out of the vote, so we believe that, absent any kind of law or planning board rule for a situation like this, that the planning board chair has the discretion to table the vote and hold a new one.”

Wolfe said during the meeting that Storm shared with the board a 2003 ruling from the New York State Supreme Court’s Appellate Division that reportedly informed her opinion. 

The ruling, a copy of which was sent to The Enterprise by Reagan, concerns a planning board that had carried out a vote on a particular project only to hold another vote weeks later without any public discussion, ultimately resulting in a different outcome than that of the original vote. 

The Appellate Court — the middle level in New York State’s three-tiered court system — found the second vote to be illegal, noting that the board “failed to indicate what new material evidence or additional facts had come to its attention after the [original] determination, and failed to give all interested parties notice of the action contemplated.”

Wolfe, who expressed that he “firmly believes” the vote can be retaken, said during the April meeting that he doesn’t think Storm’s response “really answers the question that was asked.” 

Storm told The Enterprise in response to questions about the matter that she would review them on Monday, April 12, and “advise if I have any comment.”

Twists and turns

It’s been a long and winding road for the proposed solar project, which would be located near the corner of Whipple and Thompsons Lake roads in Knox, should it be approved. 

Last September, the Knox Planning Board was supposed to review the contents of RIC Energy’s application ahead of its submission to ensure that everything the board would need was there; however, not all planning board members received documents to review and the board had to defer its analysis. 

 In February of this year, after the planning board granted its conditional approval of the project, the Albany County Planning Board issued its disapproval, based in part on a new resolution passed by the county that was designed to protect important viewsheds. But county Legislator William Reinhardt, who helped develop the resolution, said that it was intended to protect only selected viewsheds that had yet to be identified, and that the proposed project wasn’t likely to fall under its purview.

“The legislation refers to developing a viewshed study that identifies … roads in the county that are below the escarpment, where the viewshed is most important,” Reinhardt said at the time. “That would have been true for example of roads leading toward Altamont, past Indian Ladder Farms. That kind of thing. Those are the roads that are going to be considered for the viewshed landscape, if you will.

“In other words, it’s not going to be every viewshed from every road. The planning function is going to be to identify viewsheds that are most important. In that sense, the way you describe it … does not sound like what the legislation originally intended.” 

Other critiques issued by the county planning board appeared to be false, like the assertion that RIC did not have a phasing plan in place when in fact it did, or based on limited information. 

All the while, some residents have objected to the project. 

Al and Valerie Gaige, of Whipple Road, worry that the sounds of construction will have an impact on their quality of life — and especially on that of their daughter Alyssa, who has cerebral palsy and a sensitivity to noise — as will a hum from some of the solar facility’s components once it’s operational. 

And Eli Fanning, of Stage Road, has written a letter to the Enterprise editor that he feels the project is “violation of the spirit of municipal zoning law,” among other concerns.

“I believe it is unlawful and unethical to install an industrial-use project in a residentially zoned area and reduce property values and quality of life,” Fanning wrote. “The whole point of buying property in this part of Knox is to have open space and enjoy the protection of local laws that preserve and protect open space.”

In a response to Enterprise questions this week that will be run in full as a letter to the editor, Fanning expressed distrust in the planning board and town attorney.

“One assumes the town lawyer is independent,” Fanning wrote, “but one also assumes that responsible leaders would agree [to] not force an industrial project into a residentially zoned area against the will of property owners in that area. That assumption has proven false. 

“As a result, many of us are wondering: How can we trust a town lawyer working at the behest of planning board representatives who appear to be advocates of the solar project and RIC Energy, who have ignored the will of the people, and who have created a legal mess? 

“The only reasonable answer is: We can’t trust them. We need [a] mediator who is versed in the law and government ethics to sit as a third party in this process.”