Freepoint Solar LLC (Freepoint) is proposing a solar array in the Town of Athens, Greene County, New York. On December 19, 2024, the New York State Appellate Division, Third Department granted the appeal of Freepoint against the Town of Athens Zoning Board of Appeals (ZBA). This decision is a significant milestone in the protracted legal battle between the town and Freepoint, with broader implications for the solar industry across New York State.
In 2021, Freepoint applied to the ZBA for a use variance, arguing for application of the public utility or public necessity test instead of the traditional four element test in New York State Town Law. The public utility test provides a less stringent standard for variances.
The ZBA initially denied Freepoint’s use variance application, applying the stricter traditional test. This prompted Freepoint to commence its first Article 78 proceeding (Freepoint I). In that case, the Greene County Supreme Court determined that the ZBA had applied the wrong standard and remanded the matter for reconsideration under the public utility test. Despite this directive, the ZBA once again denied Freepoint’s application, leading to a second Article 78 challenge: Freepoint II.
Both Freepoint I and Freepoint II underscore a growing consensus under New York State law regarding the applicability of the public utility test to solar and renewable energy projects.
Under New York State Town Law § 267-b, applicants seeking a use variance traditionally must prove unnecessary hardship by satisfying four statutory criteria. However, the public utility test applies a relaxed burden, requiring applicants to demonstrate:
- The relief is a public necessity, required to render safe and adequate service.
- Compelling reasons, economic or otherwise, make it more feasible to seek the variance than to pursue alternative locations.
This relaxed standard acknowledges that electric generating facilities serving a public need warrant different treatment under zoning law.
The Third Department’s decision in Freepoint II strongly rejected the ZBA’s denial as “arbitrary and capricious and not supported by substantial evidence.” The ruling highlighted several critical points regarding the public utility variance standard:
- The relief is a public necessity, required to render safe and adequate service:
- As stated by the Third Department: “Whether a particular public utility meets its burden in establishing a public necessity is based, in part, on the type of energy being produced by the proposed project and the State's policy relative thereto.”
- New York State’s solar capacity requirements in the Climate Leadership and Community Protection Act (CLCPA) “is a floor, not a ceiling, and the State may therefore set even more ambitious targets to achieve the CLCPA’s long-term objectives.” The “overarching goals of the CLCPA [are] future, long-term goals and targets.”
- The Third Department rejected the ZBA’s position that there was no “public necessity” because some CLCPA capacity goals had been met or were expected to be met. The Third Department also rejected the ZBA’s focus on the opposition of a small group of landowners as opposed to the regional and state-wide concerns addressed by the CLCPA. As a result, the Third Department has affirmed that the “State’s goal of transitioning to renewable energy is designed to benefit the public at large, and this project [the solar array] is in line with that goal.” Therefore, the Third Department established that under the CLCPA, community solar and corresponding entitlement relief for community solar are a public necessity.
- Compelling reasons, economic or otherwise, make it more feasible to seek the variance than to pursue alternative locations.
- Compelling reasons included:
- Freepoint’s purchase of the land for the solar array
- An approved interconnection request by the utility
- The utility hosting maps that demonstrated there is no hosting capacity for a project of similar size in the zoning district of the town where solar is permitted.
- Applicants like Freepoint do not need to demonstrate that it would be impossible for the project to be constructed in a zoning district within the town where solar arrays are permitted. “There is no legal requirement that [applicants] analyze each and every possible parcel of land before obtaining a variance; such a requirement would be unworkable.”
The Third Department soundly rejected the ZBA’s initial attempt to sidestep the public utility variance test and its subsequent effort to justify a denial under the relaxed standard. Equally significant was the state’s support for Freepoint’s arguments; both the Public Service Commission and New York State Attorney General Letitia James submitted documentation supporting distributed solar and the goals of the CLCPA.
Freepoint II is one of a handful of cases statewide highlighting the evolving landscape of renewable energy development and zoning regulation. The decision is poised to shape pending community solar entitlement applications across New York State. Barclay Damon’s Land Use & Zoning Practice Area attorneys remain deeply engaged with these developments and will continue to monitor this dynamic area of law.
If you have any questions regarding the content of this alert, please contact Corey Auerbach, Land Use & Zoning Practice Area chair, at cauerbach@barclaydamon.com; Ari Goldberg, counsel, at agoldberg@barclaydamon.com; Dan Krzykowski, associate, at dkrzykowski@barclaydamon.com; or another member of the firm’s Land Use & Zoning Practice Area.