Rotterdam ban on large-scale solar arrays runs afoul to state law - The Daily Gazette

Rotterdam large solar array ban runs afoul to state law | News | dailygazette.com

A proposed solar energy law intended to preserve scenic landscapes by prohibiting certain large-scale arrays throughout the town of Rotterdam does not align with a state law regulating the systems.

The proposed solar energy facilities law introduced last month would regulate all solar-energy systems and ban those greater than 25 megawatts — a move intended to preserve the town’s rural character and natural resources, major components laid out in the Rotterdam Comprehensive Plan adopted in 2022.

As justification for the ban, the proposed ordinance cites a section of state Executive Law known as Section 94-C, a 2020 law that created the Office of Renewable Energy Siting (ORES) to oversee the siting and permitting process of large-scale renewable energy systems in the wake of the state’s climate change goals adopted a year earlier.

The law essentially removed local control for all solar- and wind-energy systems 25 megawatts or greater by placing the projects under the purview of ORES while granting the office the ability to ignore all local laws deemed too burdensome to the state meeting its climate change goals. Developers seeking to construct energy-producing systems between 20- and 25-megawatts had the option to go through either the local or state permitting process.

State lawmakers in 2019 approved the Climate Leadership and Community Protection Act (CLCPA), which calls for 70% of all electricity in the state to be produced by renewable sources by 2030 and that greenhouse gas emissions be slashed by 85% of 1990 levels no later than 2050.

But the Rotterdam proposal essentially ignores section 94-C, citing one sentence from the ordinance to justify banning solar arrays greater than 25-megawatts in town.

“A final siting permit may only be issued if the office [ORES] makes a finding that the proposed project, together with any applicable uniform and site-specific standards and conditions would comply with applicable law and regulations,” reads the quoted portion of state statute.

The Rotterdam law goes on to say “the importance of local laws is manifest from this statement” and that the “state Legislature explicitly expressed the intent that the content of local laws shall be a very important consideration of the New York State Office of Renewable Energy Siting” throughout the permitting process laid out in Section 94-C.

“In crafting section 94-C, the State Legislature would have been within its authority to supersede all local laws and regulations without referring to them or statement about them,” the proposed Rotterdam ordinance reads.

But what the Rotterdam proposal doesn’t consider is the next sentence of Section 94-C, which state’s that ORES can ignore local laws found to be “unreasonably burdensome” in meeting goals laid out in the 2019 climate change law.

“In making this determination, the office may elect not to apply, in whole or in part, any local law or ordinance which would otherwise be applicable if it makes a finding that, as applied to the proposed major renewable energy facility, it is unreasonably burdensome in view of the CLCPA targets and the environmental benefits of the proposed major renewable energy facility,” reads Section 94-C.

On top of that, Section 94-C was repealed by the RAPID Act that was included in this year’s state budget adopted in April. The law keeps a bulk of the framework for renewable energy projects created under Section 94-C, but eliminates the options for developers to opt into the state permitting process for renewable energy projects under 25-megawatts while retaining ORES’ authority to ignore local laws deemed burdensome. The statute also gives ORES oversight in the siting and permitting of transmission line projects.

Town Board member Joseph Mastroianni said Monday that he views the state’s authority over large-scale solar projects as an affront to the state’s Constitution, which grants local municipalities Home Rule authority, or the ability to adopt local legislation.

He said the proposed solar law “must stand on its own” and not be influenced by the state’s ongoing effort to meet its clean energy goals.

“The state’s Constitution grants power of zoning to local municipalities, so we’re at a constitutional crossroads here where we either surrender to the intimidation or the larger government, or we assert our authority as the government closest to the ground,” he said.

Municipalities from across the region have raised concerns about large scale solar arrays, including nearby Duanesburg, which at one time considered outright banning the energy producing systems.

Lawmakers in the rural town changed course over concerns that banning the system would incentive developers to bring forward larger projects that required no local input to move forward.

A spokesperson for ORES declined to comment on the proposed Rotterdam legislation, which could be adopted by town lawmakers as early as next month.

Supervisor Mollie Collins said the proposed ordinance is still in its draft stage and is expected to be tweaked before the Town Board holds a vote on adopting the legislation. An updated version of the legislation is expected to be released next week.

She noted that the proposed statute cites a portion of state law that is no longer in effect because the law was drafted over more than a year, when Section 94-C was still in effect, and that the legislation will likely be updated to reflect the change.

But whether the revised legislation includes language prohibiting solar arrays larger than 25-megawatts remains to be seen. Collins deferred comment to the town’s Energy Advisory Committee, which drafted the legislation.

Committee members could not be reached for comment Monday.

Solar energy systems have been cause for concern amongst some Rotterdam residents, who have expressed fear the state’s climate goals will lead to irreversible harm to the town’s rural landscapes that would displace wildlife while diminishing the quality of life for those living in the western, more scenic portions of town.

Town Board members unanimously approved a temporary moratorium on large-scale solar arrays in late 2022 after residents voiced concerns about a 20 megawatt project proposed for the area of Sandborne Road that would require clear cutting of more than 100 acres of forested land.

Asked how the town would potentially enforce a ban on solar projects that it has no jurisdiction over, Collins and Senior Town Planner Peter Comenzo acknowledged state law supersedes local law.

“It’s something that came from the committee. I don’t know if that language will be in its final form, but obviously, you’re correct, if the state is controlling it, then the state has control over it,” Comenzo said.

But Mastroianni said he’d be willing to challenge the state in court to gain local oversight of the projects, saying his duty as an elected official precludes him from violating the state’s Constitution.

“Until the Constitution is changed I’m prepared to chain myself to a tree to prove a point that our Constitution says it’s local municipalities that have a say over what the zoning is [for] their municipality and what goes into their community,” he said.

A public hearing on the proposed solar ordinance is set to take place on July 10.