Freepoint Solar LLC v. Town of Athens Zoning Board of Appeals

The New York Appellate Division ordered the Zoning Board of Appeals (Zoning Board) for the Town of Athens to issue a use variance for a solar energy generation facility. The appellate court reversed a trial court judgment that had dismissed the project applicants’ challenge to the variance denial. The Appellate Division found that due to the project’s minimal impact—as evidenced by the environmental review finding no significant impacts—the Zoning Board should have required a “reduced showing” by the applicants to establish the facility’s public necessity. Regarding the Zoning Board’s finding of no public necessity, which the applicants said was improperly focused on “needs and wants of a small group of landowners,” the Appellate Division noted that “local concerns are not typically part of the more general public necessity calculus” and found, moreover, that the environmental review revealed that local concerns related to aesthetics and environmental impacts were not present in this case. The Appellate Division also found that the Zoning Board’s finding of no public necessity due to New York State being “on track” to meet certain renewable energy goals of the Climate Leadership and Community Protection Act (CLCPA) was arbitrary and capricious and unsupported by substantial evidence. The appellate court said the Zoning Board’s finding focused on the CLCPA’s minimum requirements for solar procurement and “side-steps the consideration of the overarching goals of the CLCPA and future, long-term goals and targets.” The court also found that the Zoning Board erroneously required the applicants to establish that it would be “impossible” to construct the project in a zoning district where solar facilities are permitted.