CleanChoice Energy

The Le Roy Town Zoning Board of Appeals’ unanimous decision Tuesday night to disallow a solar farm on Thwing Road was more than a 3-0 vote -- it was a 3-0 vote times five, according to ZBA Chair Stephen Barbeau.

Barbeau returned a call from The Batavian seeking reasons behind the panel’s action pertaining to CleanChoice Energy’s application to site a 4.95-megawatt solar array on farmland owned by the Gary W. Clark family at 7120 Thwing Rd.

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SEE ALSO: Solar company rep reacts to Le Roy ZBA's denial of community solar project proposed for Thwing Road

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A former Le Roy Town supervisor, Barbeau said the application, in this case, had to meet five different criteria before the ZBA could issue the use variance necessary to place a solar farm in a district zoned other than either Industrial or Interchange (near the NYS Thruway).

The first one was whether the project could be considered a “public utility,” which was the contention of CleanChoice Energy, and the other criteria – in four parts – were contained in the standard use variance guidelines issued by New York State, he said.

“It’s not for the Le Roy Zoning Board of Appeals to declare that commercial solar projects are akin to a public utility; that’s way above our pay grade,” Barbeau said. “That is not something that is supported in the law as it is known and we had no desire to make new law or try to make new law or set any new precedent.”

Barbeau said the ZBA sought out legal advice from multiple sources in order to make an informed decision.

“The applicants, their attorney, Ty (Baccile, project manager) and the Clarks are all good people,” he said, “but the elected board members of the Town Board set code and what these folks were asking for was an exception to that code.

“For us to grant an exception, there had to be some kind of overwhelming, unique, unusual circumstances as it is pretty rare that a use permit is granted.  It’s a very high bar.”

He said that the vote by the three voting ZBA members was 3-0 against categorizing the project a public utility and 3-0 on each of the other four criteria.

“Even if we had relaxed the standards (on the public utility issue) as they wanted us to, they still wouldn’t have cleared the other hurdles,” he said

The four criteria for a use variance for any town, according to Barbeau, are as follows:

1 – The applicant would not be able to realize a reasonable return (profit) as shown by financial evidence and that lack of return must be substantial.

“For example, 'I can’t sell this land for $2 because it’s landlocked or there’s poison on it or it’s an archaeological site so no one would want it. I can’t lease it … or a realtor determines that it’s valueless,'” he said. “They would have to show that they can’t make any money any other way through a permitted use on the property.”

2 – The alleged hardship relating to the property is unique.

“If there’s some kind of unique element to that property that doesn’t allow you (to use it), such as it’s all rock, and you can’t develop it for houses or to farm it or to mine it,” he said. “It’s just so unique that it’s a hardship.”

3 – The use that the applicant is requesting will not alter the essential character of the neighborhood.

“It’s wooded land, it’s farmland and there is some scrubland in there,” he said. “The only things that go on in that area is that people live there, people farm there and they hunt.”

4 – The alleged hardship has been self-created.

“In other words, ‘I inherited the property, I didn’t anticipate inheriting the property, I’m not a farmer, I’ve never been a farmer and I have no farm equipment, and a realtor said the property is worthless, so I can’t do anything with it,’” he said. “Even if that was the case here, you could potentially sell this land.”

The project manager of the proposed Thwing Community Solar Garden project on farmland owned by the Gary W. Clark family at 7120 Thwing Rd., Le Roy, declined to address any future action following Tuesday night’s rejection of the 4.95-megawatt system by the Town of Le Roy Zoning Board of Appeals.

Contacted by telephone at his Corning home this morning, Ty Baccile, project manager/solar development for Washington, D.C.-based CleanChoice Energy, acknowledged that the ZBA’s vote against the siting of the solar system on 26 acres of a 62-acre parcel represents the end of CleanChoice Energy’s communication with local officials.

“As far as the Town of Le Roy goes, that is the last procedural step for CleanChoice Energy and the Gary Clark family to pursue the application,” he said. “We could proceed with an appeal to the New York State Supreme Court to review the ZBA’s response that we are not a public utility and to review the same points that we presented to the zoning board.”

When asked if CleanChoice Energy would be looking to appeal, Baccile said, “I can’t comment on that at this time.”

Baccile has been working on the project for a couple years leading up to last night’s public hearing in front of the four-person ZBA at the Le Roy Town Hall courtroom.

The plan came up against a recently-passed solar ordinance by the Le Roy Town Board that restricted such projects to land zoned as Industrial, or located in the municipality’s Interchange Zone.

On Monday night, Baccile said a few neighbors asked “constructive questions” about the project, but said there were no controversial issues.

“We gave a PowerPoint presentation with lots of visuals to show both the Zoning Board of Appeals and the public just how suitable the site was and how special we believe it is – and the benefit to both agriculture and the landowners,” he said. “The landowners farm 600 acres in town and this would serve to help their farm out and also to show the different things you can do with the operations and maintenance plan with pollinators.”

Baccile said the solar farm was “barely visible” from the road and was formulated with appropriate setbacks.

He said the current zoning as it pertains to community solar farms is restrictive to the point of infringing upon property owner’s rights to control the use of their land.

“If you were to look at a zoning map of Le Roy, the town is 80 percent Residential or Agricultural district and very little amount of Industrial,” he said. “Part of our presentation was to show them that if we were to move our project to an Industrial district and leave behind the opportunity for the Agricultural district and the landowner, that we would have a very difficult time because of the technological and environmental constraints that exist in the Industrial district.”

Calls and emails to ZBA Chair Stephen Barbeau were not returned at the time of the posting of this story. Barbeau is a non-voting member of the board; voting members are Tony Madeau, Mark Moochler and Jay Whipple.

Baccile cited concerns from the New York State Department of Environmental Conservation over the impact to wildlife, plants and wetlands in Industrial/Commercial zones and also mentioned the lack of appropriate electrical infrastructure in those districts.

“We wanted to show them that we could still follow the spirit and intent of their zoning – with how you site a project and doing it safely and following all the setbacks – but we just couldn’t place it in an Industrial district because of the lack of appropriate land,” he added.

Another issue was that the code stipulates the project fit the definition of a public utility, and the ZBA disagreed with that as well.

“The public utility aspect … started with a series of court cases in the early 1900s right to the late 1990s with various emerging technologies from electric power to steam to antennas to telephone towers. As they have merged, it has been identified that they don’t always fit in the zoning schemes, for the very reasons that we presented: the technical challenges,” Baccile said.

“As a result, zoning boards are allowed to relax some of the use variance rules related to landowners’ desires to dedicate some of their property for solar. But the ZBA declined to accept that thought process, and simply responded that they do not believe we are a public utility and since we are not a public utility, they will apply the standard methodology and denied our application.”

The vote was 3-0.

Baccile said the ZBA’s decision possibly could be challenged in the future as New York continues its push for more renewable energy.

“They have made it very difficult for them to achieve the goals of their solar plan, which are to distribute energy resources as called for by the state, and to promote the opportunities that exist per the state’s legal mandates for the electric generation transmission by 2025,” he said.

Le Roy Town Supervisor James Farnholz, who cast the lone “no” vote to the town board’s solar zoning code ruling, said today that he felt a compromise could have been worked out when considering the Residential and Agricultural districts.

Farnholz agreed that the solar code is restrictive and mentioned that trying to place solar farms in Industrial or Interchange (by the Thruway) districts would be more expensive.

“It’s not that there isn’t significant property available for solar companies to use. There is about 20 percent, I think, outside of Residential and Agricultural, if you combine it all,” he said. “But it’s going to be more expensive because it’s not flat, tilled ground that you can just come in and throw solar panels on. The available land is going to require more site preparation and that will cost more.”

If it was approved, the Thwing CSG would have qualified for the CleanChoice Community Solar program, generating enough energy to power 800 to 850 homes in the Town of Le Roy and surrounding areas, Baccile reported.

Photos: Visual simulations of the proposed Thwing CSG project that was turned down by the Town of Le Roy Zoning Board of Appeals on Tuesday night. Submitted by CleanChoice Energy.