Byron Association Against Solar

The New York State Board on Electric Generation Siting and the Environment minutes ago, by a 5-1 vote, approved construction of the $345 million Excelsior Energy Center 280-megawatt utility scale solar project on 1,700 acres of farmland in the Town of Byron.

The vote capped a three-year effort by Excelsior Energy to develop the solar system under Article 10 of the state’s Public Service Law – and turned aside opposition to the proposal from Byron Association Against Solar, LLC, and the state Department of Agriculture and Markets.

Today’s action, broadcast live on the internet from Albany, came just two days before April 8, 2022 statutory deadline.

Members of the Siting Board panel voted following a 15-minute presentation by the Hon. Gregg C. Sayre, presiding examiner for the Department of Public Service, who found that the arguments forwarded by BAAS were not strong enough to delay, alter or relocate the project.

Votes in favor of the project were cast by Tammy Mitchell, director DPS Office of Electric, Gas and Water; Louis Alexander, representing the Department of Environmental Conservation; Elizabeth Lewis-Michl, director of the Department of Health Division of Environmental Health Assessment; Vincent Ravaschiere, senior vice president at Empire State Development, and John Williams, vice president for Policy and Regulatory Affairs of the New York State Energy Research and Development Authority.

Norman Pawlak, ad hoc member assigned to the project, cast the lone vote against the proposal.

Sayre stated that while the total project area is 3,443 acres, the “limit of disturbance for construction and operation” is 1,712 acres – with 1,629 inside the proposed project fences. He also mentioned that collection lines will be placed underground and a proposed substation and switching yard will connect the grid to a New York Power Authority 345-kilovolt transmission line nearby.

The project also includes a battery storage facility with a 20-megawatt, four-hour duration capacity, he said.

Three of the five parties in the matter – the DPS, Excelsior Energy and the Town of Byron – reached an agreement on details of the project in the fall of 2021, while the Department of Agriculture & Markets and BAAS joined together against it, including the hiring of a law firm to articulate its points to the Siting Board.

Sayre said the opposition’s key points focused on taking away much of Byron’s prime farmland, changing the “character of the community” and noncompliance with the comprehensive plans of Genesee County and the Town of Byron.

The administrative law judged addressed each one, as follows:

Using and Converting Prime Farmland

“The Department of Agriculture and Markets objected to 30 percent of the project being located on prime farmland and objected that a solar energy project constitutes a permanent conversion of farmland to non-agricultural uses. The draft order finds that the argument about permanent conversion of farmland has been considered before by the Siting Board and was rejected in the Hecate Energy Albany case decided in January of 2021,

“In that case, the Siting Board concluded that a commercial solar facility does not result in a permanent loss of farmland. Where, as in both that case, and in this case, the certificate conditions require the land to be fully restored as closely as possible to its prior condition upon decommissioning to the appropriate security for the decommissioning.

“In this case, there is some permanent loss of farmland due to access roads, and other similar construction, but it amounts to only about 31 acres, which is less than 1 percent of the project's area. The draft order also notes that the applicant has agreed to follow the Department of Agriculture & Markets guidelines for solar energy projects, which deal with construction mitigation for agricultural lands.

“The developer also has agreed to hire a health, safety and environmental manager with agricultural qualifications, as well as agreeing to various reporting requirements and coordinating requirements that involve in the future and … Department of Agriculture staff. Although the department is certainly correct, that agriculture agricultural production will be reduced in the footprint of the project for approximately 30 years, the reason behind that loss is that the property owners in question have voluntarily entered into lease agreements with the applicant.”

“BAAS offered two studies to support its position that the project will have a massive negative impact on farming in the Town of Byron. One of the reports was based on a completely erroneous number of affected acres, starting from the proposition that 3,500 acres of agricultural land would be removed from use for the life of the project. The correct acreage is 1,712 -- about half the amount in the study. That report is also deficient in using one year of crop pricing, in its analysis of impacts rather than a longer average given the price fluctuation that actually occurred over the course of several years in the town's top 10 crops.”

Destroying the ‘Small Town Feeling’

“BAAS offered the testimony of witnesses who stated that the visual impact of the project will destroy the small town feeling and tight knit community spirit of the area of the project. However, that testimony does not directly take issue with the significant visual screening measures that the applicant has agreed to take -- a fair number of plantings, the use of existing woodlands and hedgerows and other screening measures.

“The testimony also does not take direct issue with the visual impact analysis offered by the applicant that indicates that there is minimal expected visibility within the affected visual study area, which is the area within a radius of 5 miles around the fence line of a project. Under these circumstances, the draft order concludes that the BAAS testimony is overstated in claiming that the project will destroy the rural community, and finds that visual impacts have been avoided or minimized to the maximum extent practicable.”

Inconsistent with Comprehensive Plans

“The third issue in dispute is based on the testimony of a local resident who was speaking for himself, not for the town or the county, that the project is inconsistent with the town and county comprehensive plans. The resident is absolutely correct in stating that the protection of agricultural lands is listed as a goal and both of those plans.

“But the draft order finds that the argument of the project's inconsistency with these plans fails for three reasons. First, the town comprehensive plan also explicitly supports the development of clean energy resources. So, there is necessarily, as with most land use issues, some balancing required of competing goals.

“Second, the town in 2021 adopted a solar law that allows for some agricultural siting. The town found that the law was consistent with its comprehensive plan. And the county planning board implicitly found that the law was consistent with both the town and county comprehensive plans when it approved the town law. It is also noteworthy that the project disturbs less than 1 percent of the county's prime farmland.

“Third, as I noted, the … witness was speaking for himself. Neither the town or the county chose to file testimony or briefs against the project. The draft order concludes that the project is in fact not inconsistent with the town or county comprehensive plan.

“I should note that the applicant requested a waiver of 10 specific requirements of that town environmental law. The applicant produced evidence that with respect to these requirements, compliance would make it uneconomical to build the project. No party opposed those proposed waivers, and the order grants them.”

CLICK HERE for press release from the Siting Board.

Press release from BAAS:

On Dec. 10, Byron Association Against Solar members Eric Zuber, Gayla Starowitz and Jim Lamkin led state and local officials on a tour of the proposed Excelsior Solar Project in Byron as indicated by the black line on the Excelsior map (above).

Included on the tour were officials and attorneys from NextEra/Excelsior, the New York State Department of Environmental Conservation, the Department of Public Service, the Department of Agriculture, BAAS and the Byron Town Board.

The purpose of the tour was to allow state and town officials to see for themselves the size and scope, and magnitude of the prime farmland acreage that will be covered by solar panels if the NextEra/Excelsior project is approved.  These areas are colored “purple” on the attached map.     

Local landowners have agreed to lease 3,400 acres of land for 30 years for the project although only about 1,700 acres (in purple) will initially be covered by solar panels, roads, fences, wires, poles, batteries and other related equipment.  The landowners, the Byron-Bergen Central School District, Genesee County and the Town of Byron will receive compensation from the project.

We ask that Byron Town residents view the proposed site of the project for themselves by starting at the South Byron Firemen’s Recreation Hall and following the black line on the map.  The numbers represent view sites.

It is expected that in early 2022 the project will be reviewed by the New York State Siting Board as part of the Article 10 process.  If approved, it is likely that construction will begin in 2022.

People on both sides of the solar fence – farmers who have signed on to lease their land and labor union representatives who are for it and longtime residents who are against it – expressed their views this afternoon at a public statement hearing on the application of Excelsior Energy Center LLC to construct the 280-megawatt, 1,600-acre Excelsior Energy Center in the Town of Byron.

The one-hour hearing took place via www.webex.com, with the audio livestreamed on YouTube.

A second hearing is scheduled for 6 o’clock tonight. Information needed to access the session can be found at the end of this story.

Administrative Law Judges Gregg Sayre of the Department of Public Service and Molly McBride of the Department of Environmental Conservation presided over the hearing, which allowed for brief statements (longer statements could be submitted via email or mail) but no question-and-answer period.

Sayre said that all comments in all forms will be considered by the New York State Board on Electric Generation Siting and the Environment (siting board) as it decides whether to allow the project to go forward.

The Byron Town Board already has indicated its support for the project, emphasizing that Excelsior Energy has committed to payments totaling $24 million to the municipality over a 20-year period.

A citizen-led organization known as Byron Association Against Solar, which includes Town Councilman Eric Zuber, has been outspoken in its opposition of the venture – citing disruption of the rural character of the community and the use of prime farmland.

The project also includes a 20-megawatt, four-hour duration energy storage system. Components would consist of solar arrays, access roads, buried and possibly overhead electric collection lines, energy storage and electrical interconnection facilities.

According to the siting board filing, additional facilities would consist of a new collection substation and 345-kilovolt switchyard, which would connect to the New York State grid and would be transferred to the New York Power Authority to own, maintain and operate.

Participating local landowners include Legacy Lands LLC; Brooke-Lea LLC; Call Lands; Lea-View Farms LLC; Richard Colby; L-Brooke Farms LLC; John Starowitz; Leo Starowitz Jr.; Star Growers Land LLC; John Starowitz and Andrew Starowitz; John Sackett Jr. and Charles Sackett; CY Properties LLC; and Call Lands Partnership.

Following is a summary of today’s public statement hearing:

Debra Buck-Leaton
Byron Town Clerk and owner of Lea-View Farms Inc.

Buck-Leaton contended that the solar project will provide many advantages to “our farming business and the community.”

She said that her family farm has been in operation since 1929, being passed down through three generations, and “has always prided ourselves in being good stewards of our land – preserving it for future generations.”

She said increased costs of farming are overwhelming and have led to insecurity.

“Many people have said that we are giving up prime farmland. Everyone needs to keep in mind that prime farmland is and can only be considered prime farmland if it is able to be farmed. If we can’t afford to farm the land, it can only be considered vacant land.”

She noted that revenue from NextEra (Excelsior Energy) will enable her family to make needed repairs to their buildings and equipment, and will enable the Town of Byron to “afford things that we never could have imagined.”

“With good leadership, the town will be able to be good stewards of our small town well into the future,” she said, adding that the local farmers involved with Excelsior Energy are committed to staying in the town and helping the community in the future.

James Vincent
Retired president/CEO of L-Brooke Farms and associated companies

Vincent said L-Brooke Farms has grown from 500 acres to 7,500 acres in his 55 years, covering land in six counties.

He said the company is an advocate “of green energy, integrated technology and the many advantages that the Excelsior Solar Project represents – not just because of having some of our lands involved in the solar leases, but what a dynamic and steady income stream means to our farm business model.”

He called these times as “unprecedented and challenging” for farmers, the town, school district and Genesee County” and for the economy and rural lifestyle.

Vincent said his operation pays more than $200,000 a year in local and school taxes … “but basing it on real estate taxation puts us in an unfavorable competitive position.”

“The community will benefit from this project, providing benefits that translate into less tax burden to agriculture -- the host benefit packages and the PILOT* agreement that are incorporated in it,” he said. “The importance of having solar for agriculture and associated services furthers our history of success in having diversity for our farm business.”

He said that “alternative sources of income are absolutely essential if our farm businesses and the associated land base are to be sustained and provide opportunity for future generations.”

Vincent Albanese
New York State Laborers’ International Union of North America

Speaking on behalf of 40,000 men and women in New York who are members of the affiliated local union of LIUNA, Albanese said the union “would like to strongly encourage the swift approval of the Excelsior Solar Project as it pertains to these Article 10 (state law) proceedings.”

He said the union’s interest is two-fold – (1) the well-being of its members and ensuring that any project has a commitment to using local union workers and (2) that any project pertaining to the replacement of traditional fossil fuel jobs is being built in New York with New York local union workforce.

Albanese said NextEra has committed to using local union workers.

Barbie Starowitz
Star Growers

Starowitz, a longtime Byron resident, said that since 1932, her family has always wished to grow and maintain the land for generations to come.

“Excelsior Energy Center will not only support our farm for future generations … but will also provide new local revenue, new local jobs for our community and continue to provide us with the opportunity to support other farmers in our area,” she said. “Farm communities are stronger when we work together and we will continue to support activities pursued by others in our community, on our land.”

Starowitz said that Excelsior Energy Center will pump $37.4 million to the town, Byron-Bergen Central School District and Genesee County, and create 290 full-time equivalent jobs during construction, with 90 percent of those local workers.

She said diversification is essential to the survival of farmers, who depend on the weather to yield strong crops. She said that solar will provide a steady stream of income while not removing the land from potential future agricultural use.

Starowitz also commended Excelsior Energy Center for being available to the community throughout the process to provide “valuable information” and to answer questions. She said the entire Byron community of 2,300 people will benefit from the project.

Richard Colby
Landowner

Colby, who said as a young man he worked the land that has been offered for the project, emphasized the changing use of land and decrease in crop variety over years, especially in the Town of Byron.

“One thing that the solar will bring is jobs – well-paying jobs and added value to the community,” he said.

As far as the downside, Colby said it’s just the opposite as the land won’t produce noxious smells, won’t create a lot of traffic, won’t use chemicals or rely on fossil fuels, isn’t illegal, and won’t lower the real estate values.

On the contrary, he sees home values increasing as more money comes into the community.

Colby said only about half of his property will be covered by solar panels, and he is looking for other ways to diversify crops on the remaining land.

He said he sees the solar project as a complementary land use, not as a negative use.

Carmen Serrett Jr.
President of Laborers’ Union Local #435, Rochester

Representing about 600 working members, Serrett said union employees have been hampered over the last year due to COVID-19 and looks forward to high-paying projects such.

“It’s very important that local people are working on these projects as they earn their money, they spend money locally and are boosting each local economy,” he said, adding that he would like to see it move forward as quickly as possible.

Michael Bader
Business Manager, International Brotherhood of Electrical Workers Local Union #86

Bader said he represents 1,000 electricians, some of them in Genesee County, who support the project as it helps the state meet its clean energy goals and will create “good-paying careers for my members and other members of the local building trades.”

He also said it will create job-training opportunities for apprenticeships and, after construction, some long-term jobs for local people, such as mowing, plowing and maintenance.

Richard Glazier
Longtime Byron resident

Glazier said he is opposed as the panels would be placed on “mostly class one farmland, some of the best land in New York State.”

He said that droughts have pushed prices for corn and soybeans much higher, emphasizing the need to preserve good farmland.

Glazier suggested placing the panels on less valuable land, offering that renewable energy sources aren’t as desirable “as an adequate and affordable food supply.”

The panels also will cause “visual pollution” in the community, he said, and the size of the project in the small town will have a negative impact on the quality of life in the Town of Byron.

“It will never quite be the same,” he said.

He said he couldn’t fault the landowners for accepting Excelsior Energy’s offer. However, he said the Town Board is “enamored with the size of the payment in lieu of taxes” and said these projects are only available because they’re already being subsidized by the taxpayers of New York State.

Glazier also spoke about toxic chemicals in the panels and said that public sessions over the past months via Zoom were not adequate in providing information to all town residents; many of them who do not have internet access.

Jim Lamkin
Longtime Byron resident, BAAS representative

A 70-year resident of Byron, Lamkin has spoken out against the project “going on some of the best prime farmland in New York State” from the beginning.

He called BAAS a grassroots organization of longtime residents and business owners formed to prevent or limit the size of the Excelsior Energy solar system.

“We are not against solar energy but we are concerned that the placement of the solar panels is very close to residences and we are further concerned with the use of prime farmland,” he said.

Lamkin also said BAAS is “concerned that the solar project will disrupt the current and future productivity of the land, lower surrounding home and land values, will be an intrusive eyesore for the residents, and will have targeted and ripple effects in the surrounding agriculture-based economy.”

He mentioned that in December 2019, a survey was sent to about 900 Byron residents and 350 of them came back opposing the project.

He also said the applicant has failed to produce a plan that shows adequate screening of the solar arrays from residents’ views and is concerned about the potential long-term contamination of the soil.

Finally, Lamkin said the project is in “direct conflict” with the Town of Byron’s Comprehensive Plan that states that “maintaining the rural character is the most crucial factor,” along with preserving the agricultural base land and farms.

PUBLIC HEARING TONIGHT AT 6'OCLOCK

Electronic Access: www.webex.com;
Event Number: 129 881 6364
Password: June 1-6 p.m.
Phone-Only Access: (518) 549-0500
Access Code: 129 881 6364

OTHER WAYS TO COMMENT

All comments must refer to Case: 19-F-0299
Email: secretary@dps.ny.gov
Mail: Hon. Michelle L. Phillips, Secretary, NYS Board on Electric Generation Siting and the Environment. Three Empire State Plaza, Albany, NY 12223-1350
Phone: 1-800-335-2120
Electronic: www.dps.ny.gov - Click on "Search" at the top of the page; then enter 19-F-0299 into the "Search by Case Number" field; click on the "Post Comments" box at the top right of the page, enter comments and submit.

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