$10M solar project remains stalled at Gloversville ZBA

PHOTOGRAPHER:

FILE – The sign golfers would see as they exited the clubhouse of the former Pine Book Golf Club at 280 South Main St. in Gloversville in 2021

GLOVERSVILLE The Gloversville Zoning Board of Appeals did not meet Wednesday night, marking another month gone by with no new action on solar developers Eden Renewables’ application for a “Public Utility Variance,” amid an ongoing dispute over the cost of legal and engineering fees.

City Building Inspector David Fox and City Clerk Jenni Mazur Wednesday said the last action taken on Eden Renewables zoning variance application for a proposed $10 million, 32-acre, 7.5-megawatt solar farm on the site of the former Pine Brook Golf Club was Feb. 3 when Mazur sent the company the bill due for fees associated with their application.

“The last communication that we had with them was that email that went out requesting that payment, under the expert expense local law, and that’s the last communication that we’ve had, so far,” Mazur said.

Giovanni Maruca, the chief developer for Eden Renewables, said communication has been ongoing between his company’s lawyer for the project, E. Hyde Clarke, and the ZBA’s special counsel, law firm Barclay Damon of Buffalo.

“We have been negotiating with them over the escrow agreement since February, through the attorneys,” Maruca said. “We’ve been pushing back because of what they want.”

Maruca said his company has prepared many similar agreements with other municipalities, in which it has been required to pay for experts as part of the local regulatory process. However, in the case of Gloversville, his company has been asked to pay approximately $10,000 for an expert engineering firm to help the ZBA, and another $18,000 for Barclay Damon to provide legal advice to the ZBA to help the board interpret the engineering firm’s analysis of Eden Renewables’ application.

“They want us to pay for all of their legal fees, and I’ve asked them — before I sign the legal agreement — I want them to prove they spent all of this money on legal fees, because I haven’t seen any work from their attorneys,” Maruca said. “When they first hired an attorney, they said they needed him to be an expert, and then they needed an engineer, so we’ve agreed to pay another $10,000 for an engineer, but they’ve said ‘ok, but you need to pay us $18,000 in legal fees.’ And I’ve said I want to see how they got to that $18,000 in legal fees. You told me you needed an expert engineer, so what was the lawyer doing for $18,000?”

The Gloversville Common Council passed a local law in July 2021 requiring applicants seeking approvals from the city’s regulatory boards to reimburse the cost of hiring any experts the board retains to evaluate those applications.

Normally, to get a “use variance” from the ZBA, 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. Eden Renewables has sought to bypass the use variance process by arguing instead that it should receive the zoning variance under the legal rules of a Public Utility Variance because the project will generate electricity, a utility the public needs and a necessary step towards furthering New York state’s mandate requiring 6-gigawatts (GWs) of renewable energy generating capacity be installed into the state’s electricity grid by 2025.

Initially, the Gloversville ZBA’s special counsel attorney from Barclay Damon was Andrew J. Leja, the same attorney who successfully represented Gloversville in its defense of an Article 78 lawsuit pertaining to the establishment of a Code Blue temporary shelter at 33 Bleecker St. filed by the First Methodist Church of Gloversville. Leja has since left Barclay Damon and been replaced on the Eden Renewables case by attorney Corey Auerbach.

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In an email response to questions for this story, Auerbach did not respond to questions about the dollar amounts Maruca described in his statements, but did provide this statement:

“The City adopted an Expert Expense Reimbursement Local Law in June of 2021. A draft escrow agreement was forwarded to Eden in February of 2022. Eden has not signed the escrow agreement nor funded the escrow account. Best, C.”

Maruca said Gloversville hired Barclay Damon prior to passing its local expert fee law, which he thinks calls into question at least some of the $18,000 fee. He said Gloversville continues to be the most difficult municipality his company has dealt with in New York state.

“I have 20 other projects, and I have escrow agreements with other towns to pay for their professional services, and they never take longer than four months to do, never,” he said. “How could it take this long? They’ve hired one of the most expensive attorney firms in the state, and they’re supposed to be experts. It begs the question, what are they doing?”

Maruca said he’s not giving up on building the solar farm at the former Pine Brook Golf Club.

“I want them to make a decision on the case that’s in front of them — we have a right to be there as a Public Utility,” he said. “It’s obvious what they’re trying to do, but that’s OK. The rest of the world is on fire, and these guys are doing something that would really help their community [with energy prices] — which according to the recent census is a low income community — and during a time when we’re seeing some of the highest electricity prices in 20 years, what are they doing? Slow walking something.”

During a public hearing that lasted for several meetings of the Common Council in 2019, Eden Renewables’ project manager Gillian Black explained that if the project is built, it would be selling renewable energy credits generated by the project for 90 cents on the dollar, and marketing those credits first to residents of Gloversville. The Council ultimately voted against granting site plan approval for the project, prompting Eden to seek the use variance from the ZBA. Since then, Black has also left the company for a job at the New York State Energy Research and Development Authority.

Maruca said if Eden Renewables can’t get the use variance it’s seeking from the ZBA, he still has the option to triple the size of its proposed solar farm to a 25 mwp solar farm eligible to take advantage of a new New York state law passed in 2020 called the “Accelerated Renewable Energy Growth and Community Benefit Act.”

The Accelerated Renewable Energy Growth and Community Benefit Act was created by the Office of Renewable Energy Siting within the New York state Department of State, which can act as the central forum for large renewable energy siting decisions, bypassing local regulatory boards.

“That’s still an option to us,” Maruca said.

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By Jason Subik

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