Gloversville ZBA delays ruling on Pine Brook solar farm

PHOTOGRAPHER:
JASON SUBIK/LEADER-HERALD Gloversville Zoning Board of Appeals Vice Chairman David Esler on Wednesday night explains why the members of ZBA lack the technical expertise to understand whether Eden Renewables application for a Public Utility Variance is complete.

By JASON SUBIK

The Leader-Herald

GLOVERSVILLE — The Gloversville Zoning Board of Appeals on Wednesday night voted 3-0 to hire an expert to explain to them whether or not solar developers Eden Renewables application for a “Public Utility Variance” is complete, an additional step before the ZBA will set a public hearing and decide on the merits of the application.

The ZBA also intends to use Gloversville’s “Expert Expense Reimbursement Local Law”, passed by the Common Council in July, to bill Eden Renewables for the cost of reimbursing the city for hiring the expert they need to evaluate Eden’s application.

“The city takes great pride in the skill and professionalism of its land use and zoning boards and review staff; from time to time, however, the boards and staff are called upon to review and evaluate matters outside the range of their training and/or expertise,” reads the expert reimbursement local law. “These situations may require the city to seek out skills not possessed by the city officials but which are not required frequently enough to justify the hiring of new, specialized staff. At the same time, the cost of retaining such outside expertise should not be borne by the taxpayers of the city, but rather by those who seek to profit from the decisions of the city and its boards.”

The move by the ZBA effectively adds months to the already lengthy process to determine whether Eden Renewables can build a $10 million solar farm on the site of the former Pine Brook Golf Club.

ZBA Chairman Jeffrey Ashe, of 22 Wheaton Avenue, has recused himself from the Eden Renewables application because he lives near where the solar farm would be built and ZBA Vice Chairman Dadvid Esler, of 43 Oakland Ave., has handled the chairman’s duties for the application.

Esler on Wednesday night explained to Eden Renewables project developer Gillian Black and the company’s attorney for the matter E. Hyde Clarke, why the ZBA is going to need some more time before scheduling a public hearing to evaluate the merits of whether Eden Renewables solar farm project meets the criteria for a Public Utility Variance.

“I think, talking with counsel and the other ZBA members, there’s a lack of personal expertise here on the ZBA side,” he said. “We are lay people with regard to much of the content, not all of the content, but there are items in [Eden Renewables response to the ZBA’s questions] that we are not informed enough to make a suitable decision.”

Eden Renewables first applied for the Public Utility Variance from the ZBA in May after what the developers have called the most lengthy series of local approvals of any of the projects in its 75-megawatts of renewable power generation portfolio in New York state.

Those prior steps included:

• A 3-month City Planning Board subdivision approval process between August and October 2020, during which the Planning Board effectively held the subdivision vote three separate times before narrowly approving 3-2 to allow the 155-acre parcel of the former Pine Brook Golf course into four parcels: a 57-acre plot in the center for the solar farm, a 2-acre parcel encompassing the former golf clubhouse, a 1.46-acre parcel to be combined with the neighboring Antonucci Foods property and a 91-acre parcel running along the perimeter of the existing property.

The Planning Board had first voted at its Aug. 4, 2020 meeting to approve the subdivision, but that vote was nullified due to a problem with the notice for the public hearing not being published in the Leader-Herald newspaper on time. Then the Planning Board deadlocked at 2-2 over the same issue on Sept. 1 when planning board member Matthew Donde flipped from having been a yes vote previously to voting no and planning board member Pete Semione was absent. When Semione returned for the October meeting he voted in favor of the subdivision, allowing it to pass 3-2.

• The city Common Council then in November of 2020 held an unprecedented three public hearings on whether or not to change the zoning for the parcel to allow the solar farm to be built before ultimately deciding to send the matter to the city’s ZBA and the County Planning Board without a positive recommendation.

In May the members of the ZBA said they needed more time to understand the rules of a Public Utility Variance, which involves a different legal standard than the typical “use variance” which Gloversville’s ZBA normally rules on when a property owner wishes to develop a piece of land in a way that is not approved for in the city’s zoning rules.

To get a use variance a property owner must pass a four-part legal test, starting with proving an “unnecessary hardship” and that the applicant can’t achieve a reasonable rate of return from owning the property under the current zoning restrictions. The applicant then has to show the hardship relating to the property is unique, granting the use variance wouldn’t change the essential character of the neighborhood and the alleged hardship was not self-created.

Eden Renewables has sought to bypass the use variance process by arguing instead that the company should get the zoning variance under the legal rules of a Public Utility Variance because the project will generate electricity, which is a utility the public needs and because it would be electricity generated from solar energy, which helps to further a New York state mandate requiring 6-gigawatts of renewable energy generating capacity be installed into New York state’s electricity grid by 2025.

After delaying the issue in June, the ZBA submitted 11 written questions to Eden from their special legal counsel hired for the issue, Andrew J. Leja.

Eden then responded with written answers, but the ZBA couldn’t meet in August due to a lack of enough members to form a quorum. ZBA member Greg Hitchcock’s voicemail message during what would have been the August meeting indicated he was on vacation, and with Ashe having recused himself that left only two members Esler and Ronald Sutler of 10 Clyde Street.

Esler said the members of the ZBA had met with their attorney Leja and determined they need to hire an expert to explain Eden’s answers to the 11 questions in order to determine whether or not the application is complete.

Eden’s attorney Hyde, seeking to avoid an additional lengthy step from being added to the process argued the ZBA should hire the expert and also set the public hearing for ruling on the merits of Eden’s application after the board has consulted with the expert, but Leja said the board was within its rights to break out the determination of the completeness of the application into a separate step, one he speculated could take months.

“We have to ask the Common Council to pass a resolution to let us hire the expert, and then of course they would seek reimbursement for the expert,” Leja said.

After the meeting Eden officials said they will look into whether or not Gloversville’s expert witness law, passed in the middle of their application process, should apply to them or whether they should be grandfathered in under the previous rule.

Leja said he believes the law will hold up and require Eden to reimburse the city for the expert.

By Paul Wager