A recent decision from the Appellate Division, Third Department, concerned an unsuccessful challenge to a subdivision approval for five separate community solar projects.   First – a little background information. According to the New York State Energy Research and Development Authority  (NYSERDA) a community solar project, sometimes referred to as a solar garden or shared renewable energy plant, is “an array of solar panels installed in a sunny, offsite location. Anyone in the area can access the clean energy produced by these solar panels and get credits toward their electricity bills.”  NYSERDA reports that the benefits of joining a community solar project include (1) being able to “go solar’ without having to install solar panels on your property, (2) saving money on electric bills, and (3) supporting clean, locally generated power.

The case, Matter of Perkins v Town of Dryden Planning Board, involved the Town of Dryden (Town),  SUN8 PDC LLC and Distributed Sun LLC (collectively SUN8) the owner and operator of the community solar projects, Scott Pinney, the owner of farmland that SUN8 leased for the community solar projects, and Willow Glen Cemetery Association and Sarah Osmeloski, (collectively Petitioners) two neighbors that own land adjacent to the farmland. SUN8 sought to construct five separate community solar projects on the farmland and to subdivide the land into five separate lots, with each project being on a separate lot.

The Town Board granted SUN8 a special use permit and site plan approval and the Planning Board approved the preliminary subdivision plat. Petitioners brought two separate proceedings, seeking to enjoin the issuance of building permits and challenging the Planning Board’s preliminary subdivision plat.  Both of these actions were dismissed in December 2014.

In February 2018, the Planning Board approved two resolutions, one that permitted a common driveway for access to all five lots from Route 13 and the other approved the final subdivision.  Petitioners commenced this action in March 2018, seeking to annul these two resolutions.  Petitioners claimed that the Planning Board lacked jurisdiction under section 602 of the Town’s Zoning Code because it exceeded the four flag lot limitation for common driveways found in that code provision.  Petitioners also claimed that both resolutions were ultra vires and void under Town Law 280-a.

Petitioners then ran into some technical and ultimately fatal issues.  Initially, and erroneously, the notice of petition (but not the petition itself) described the two resolutions being challenged as having been issued by the Town Board, instead of the Planning Board. The trial court permitted Petitioners to amend the notice of petition to correct this. Next, the director of the Planning Department submitted an affidavit indicating that only three of the lots were flag lots, not all five. Petitioners then moved to delete their claims about the number of flag lots served by the common driveway and to add claims that frontage and access requirements were violated by the subdivision. Although the trial court found that respondents were not prejudiced by the proposed amendments, the court denied the request on the grounds the proposed claims lacked merit and dismissed the petition.

The appellate court affirmed.  The Court discussed the rules regarding amendment of pleadings, noting that leave to amend should be freely given unless “the proposed amendment is palpably insufficient or patently devoid of merit.” It then turned to Petitioners’ argument that the trial court committed reversible error when it ruled that Town Law 280-a was not applicable.  The appellate court reviewed Town Law 280-a and determined that it applied to permits for the erection of buildings. Since that section of law did not define “buildings” the Court looked to how the Town’s Zoning Code defined “building.”  That local Zoning Code defined “building” as any structure “where space, greater than 150 square feet in area, is covered or enclosed.” The Court then looked at the definition of “structure” under the local Zoning Code, which was defined  as ‘[a]nything constructed or erected on the ground or with a fixed location on the ground or attached to something having a fixed location on the ground and includes. . . solar panels.”  Thus, while solar panels may qualify as a structure under the Town’s Zoning Code, they did not meet the definition of “building” under that local code as they are not “covered or enclosed.”  Since the solar panels were not “buildings”  the Court determined that Town Law 280-a did not apply to this matter, making the proposed amended claim devoid of any merit. The end result – the appellate court affirmed the dismissal of the proceeding.