This post was authored by Amy Lavine, Esq.
A recent appellate court decision from New York upheld a planning board determination finding that a solar farm application was exempt from newly-enacted restrictions on the sitting of solar energy facilities because the application was pending when the legislation was passed.
The property owner in this case submitted an application for a solar farm in September 2013 and the application was deemed “complete” by the town’s Division of Planning, Environment and Land Management in September 2016. Before the application was decided, the town adopted zoning amendments in November 2016 that restricted permit approvals for solar energy production facilities to “only on those lands previously cleared and/or disturbed on or before January 1, 2016.” The planning board determined that it should consider the solar farm application under the prior zoning code provisions, however, because the legislation also included an “exemption” for applications that had already been deemed “complete,” and in April 2017 it granted site plan and special use permit approvals for the project. The petitioners then commenced this litigation to challenge the planning board’s determination.
The appellate court found affirmed the planning board’s decision and found that it was not arbitrary and capricious or an abuse of discretion for the planning board to review the solar farm’s application under the zoning criteria that were in place prior to the town’s adoption of the new solar farm restrictions. As the court explained: “Here, the plain language of Local Law 23… exempted the project from the provisions of Local Law 23, including the requirement that permitted solar energy production facilities ‘only on those lands previously cleared and/or disturbed on or before January 1, 2016.’ Further, the Planning Board’s determination that Local Law 23 permitted it to review [the] application using the criteria for a special use permit in place immediately prior to the enactment of Local Law 23 was neither unreasonable nor irrational.”
Matter of Affiliated Brookhaven Civic Orgs., Inc. v Planning Bd. of the Town of Brookhaven, 2022 NY Slip Op 05847 (NY App Div 2d Dept 10/19/22).