TOWN OF AMSTERDAM — The Zoning Board of Appeals has denied a use variance for a community solar project proposed in a residential area in the town of Amsterdam.
“We’ve gone through quite a few months, there have been a lot of people heard, a lot of evidence put forth and I think we made the right choice,” ZBA Chairman Michael Fariello said.
The board voted 4-0 on Wednesday to deny the application from Amp Solar Development after finding the request failed to meet any of the standards required to issue a variance. ZBA member Charles Rossi, who lives by the site and criticized the proposal during a public hearing, abstained from the vote. The decision concludes a nearly nine month review process.
“This was very thorough,” said Stefanie DiLallo Bitter, an attorney with Bartlett, Pontiff, Stewart & Rhodes PC retained by the town to assist with the solar variance review. “The board did everything it could to make sure that a fair and proper examination was done.”
Amp sought a use variance to construct a five megawatt community solar project at 260 Truax Road. The project would have spanned about 25 acres out of the 58.4 acre parcel owned by Arthur and Alyce Banewicz in an R1 residential zoning district where town law prohibits utility-scale solar arrays.
Applicants must demonstrate the hardship posed by zoning regulations is unique to the property, the circumstances are not self-created, the proposal will not change the character of the neighborhood and a reasonable financial return cannot be realized through allowed land uses to secure a variance. Failure to meet just one of the standards results in a denial.
The board discussed each of the elements last month and found Amp and the landowners failed to prove any of the criteria. Bitter detailed each point in a comprehensive resolution that the ZBA approved to reject the variance.
Among the board’s findings were:
- A financial analysis submitted by the applicants only provided evidence through a “limited scope” focusing on the owners retaining and leasing the property.
- The owners have never marketed the property for sale or lease and no efforts have been made to determine the feasibility of developing the land for uses other than solar.
- There is no unique hardship posed for the property that is similar to the approximately 3,636 total residential properties in the town accounting for 95% of Amsterdam’s land mass and a majority of which span over 50 acres.
- Universally applying the request for a variance to all similar residential properties for the installation of 25 acre solar projects would change the fundamental nature of the zoning district.
- The use would be in “sharp contrast” and would “alter the essential character” of the existing neighborhood based on submitted materials and comments from residents.
- Although the landowners entered a lease with Amp before the town updated zoning regulations to prohibit utility-scale solar projects in residential areas, such action “does not create a vested right to development for a desired use.”
The resolution went on to refute a previous argument from Amp’s attorney, John Ahearn, that the proposed use should be considered a public utility governed by more relaxed zoning standards citing state case law. But that matter involved modifications to an already existing facility, not new construction.
Bitter expressed confidence the board’s decision to deny the use variance could stand up to a lawsuit if the applicants seek relief from the state Supreme Court.
“That was our intent,” Bitter said.
The Town Board in May authorized hiring Bitter to assist with the variance review to ensure the proper procedure was followed and to handle any related litigation with a retainer of up to $10,000.
Declining to comment on the board’s decision following the meeting, Ahearn said it would be up to his clients to decide whether to pursue legal action.
Town Supervisor Thomas DiMezza on Thursday praised the work of the ZBA while reaffirming the steps taken to protect Amsterdam and the many residents who opposed the project.
“We made sure everything was done correctly,” DiMezza said. “The people that live in that area were against this. We did this in order to support them and make sure that they have the quality of life that they want and that they paid for in their homes.”
After months of waiting, Susan Rossi was “elated” by the board’s decision to deny the variance for the project that would have essentially been in the backyard of her Gay Lane home.
“There is a place for it, but it’s not in an R1 zone,” Susan Rossi said.
Most concerning to Rossi was the potential for the sprawling development of the hillside site to contribute to existing stormwater runoff issues along steep Truax Road and areas below.
“Now we don’t have to worry about it,” Susan Rossi said.
After repeatedly calling on the board to uphold town law over the past year, resident Kelly Joyce said it was worth waiting for Wednesday’s decision.
“They did an excellent job, they were thorough,” Joyce said. “It’s good for Amsterdam, they did it the way it should have been done.”