Ruling citing NY Climate Act reverses town's ban of solar farm
Appellate Court orders town of Athens in Greene County to issue a variance to Freepoint Solar, which will sell its electricity to Central Hudson Gas & Electric
By Olivia Holloway, Staff Writer
Jan 27, 2025
Solar panels at NextEra's solar farm in Schoharie County. New York’s 2019 Climate Act, which set strict mandates for transition to renewable energy, emerged as a key issue in a years-long court battle between a private energy developer and the town of Athens.
Times Union/Rick Karlin
ATHENS — New York’s 2019 Climate Act, which has set strict mandates for the state’s transition to renewable energy sources, became a key issue in a drawn out court battle between a private energy developer and the town of Athens, which had sought to protect its residents from a major solar panel project proposed in a rural residential area.
In a unanimous decision last month, a mid-level appellate court in Albany ruled that the town’s Zoning Board of Appeals had erred when it found there was no “public necessity” for the 43-acre project — in a decision in which the local officials had sought to address the concerns of nearby property owners in the rural Greene County community.
The ruling, which is subject to appeal, stands as a victory for renewable energy advocates whose support of building wind and solar farms often clash with the interests of local communities, including those whose residents are resistant to using rural forests and farmland to build the projects.
The case between Freepoint Solar LLC and the town’s Zoning Board of Appeals hung largely on the issue of whether New York had met its renewable energy mandate of having six gigawatts of solar power by this year. But that goal was arguably increased in 2022, a year before the town denied the company’s application, when the state Public Service Commission adjusted New York’s goal to having 10 gigawatts of solar power by 2030.
“Certainly one cannot quarrel with the premise that New York state’s goal of transitioning to renewable energy is designed to benefit the public at large,
and this project is in line with that goal,” the appellate divison’s panel of judges ruled. “Moreover, (the town’s) finding of no public necessity because the state was 'on track' to meet certain goals is arbitrary and capricious and unsupported by substantial evidence. Not only did this finding focus on established floors rather than ceilings but, perhaps most importantly, it side-steps the consideration of the overarching goals of the (Climate Act) and future, long-term goals and targets.”
Town officials, noting that New York had exceeded its goal of having six gigawatts of solar power by this year — thereby negating the “public necessity” of the Freepoint project — have said they will seek to file an appeal with the Court of Appeals, New York’s highest court. The appellate court’s ruling had ordered the town to issue a variance to the company.
Freepoint purchased the land, zoned as rural residential, in 2016 but was blocked from starting construction by a local law that had prohibited solar projects in zoning districts other than those designated for commercial or industrial uses. The company and the town went back and forth over a use variance application, and a Supreme Court justice initially had ruled that the town’s original denial was an incorrect application of the town law governing use variances.
Freepoint reapplied for its variance, which the town again rejected in a decision upheld by a state Supreme Court justice. But that ruling was overturned in the decision handed down last month by the Third Department Appellate Division in Albany.
The town is pursuing its appeal as dozens of local municipalities have placed moratoriums on solar panel projects that are further damaging New York’s struggling efforts to meet its Climate Act mandates — which many business and energy industry stakeholders have said are unattainable. In many of those communities, the moratoriums have been driven by local concerns that solar panel projects take away productive farmland, harm the environment and ruin the aesthetics of the areas where they are belt.
State legislation required at least 6 gigawatts of distributed solar to be installed by 2025, which was surpassed in October, inspiring the state to look forward to hitting 10 gigawatts by 2030.
The appellate panel’s decision also noted that the establishment of public necessity must be based on a wider population, so local concerns are “typically not part of the more general public necessity calculus.”
The land on where the project has been proposed was purchased by Freepoint and Central Hudson Gas & Electric has approved the company’s request to connect to its grid to sell the utility the electricity that will be produced by the solar panels. The company, in its court arguments, had noted that none of the approved commercial and industrial zoning districts in the town have the appropriate “hosting capacity” for the project to work.
Jacqueline Phillips Murray, an attorney representing Freepoint, said that the appellate court’s Dec. 19 decision was also based on the town’s finding that the project would not have a significant environmental impact.
“Freepoint already addressed the residents' concerns by designing the project to fully mitigate impacts to the environment and viewshed,” Murray said. “Notably, the town itself determined that Freepoint’s project mitigated these impacts and, therefore, would not have any significant adverse impact on the environment or the community.”
John J. Dowd, an Albany attorney representing Athens' Zoning Board of Appeals, did not respond to a request for comment.
While he recognizes the importance of achieving the state’s renewable energy goals, town Supervisor Michael Pirrone said the concerns of the town’s residents remain a top priority.
“I am disappointed that the efforts, thoughts and concerns of the people of the town of Athens were not carefully considered in the case,” Pirrone said. “I believe we did everything to ensure the equal rights of all parties and explore all considerations.”
According to Pirrone, the project on Potic Mountain Road would involve the clearing of about 35 acres of trees.
A separate, larger solar farm that is split between the upper part of Athens and the southern end of the town of Coxsackie has also already been planned. That 1,850-acre project is being handled by Flint Mine Solar LLC, and is intended to produce 175,000 megawatts of solar energy.
While local laws often place burdens on smaller projects, a state office, created shortly after the Climate Act was enacted, has authority over large-scale solar projects if localities bar their development. Created to streamline the process for renewable energy production, the Office of Renewable Energy Siting retains jurisdiction over those larger projects.
A representative from that state office explained that in some instances, local laws may be deemed “unreasonably burdensome” in the pursuit of the Climate Act goals. Actions taken by their office generally occur after public hearings and when the concerns of all parties have been considered.
The Freepoint project is not considered a large-scale solar operation and does not fall under the jurisdiction of the renewable energy office. But the agency submitted a court brief in support of Freepoint’s project and highlighting the importance of solar projects to meeting the Climate Act mandates.
Those mandates include having three gigawatts of statewide renewable energy storage capacity by 2030 and to obtain 70% of New York’s electricity from renewable sources and at least nine gigawatts of offshore wind capacity by 2035. The state’s goals for energy produced by windmill farms, including offshore, have been met with setbacks, including supply chain issues and some companies retreating from those projects due to financial considerations.
Gavin J. Donohue, CEO and president of the Independent Power Producers of New York, said solar moratoriums may further hinder the Climate Act’s energy source mandates.
“The moratoriums are real. They’re not helpful in promoting the energy diversity that the state wants to promote,” Donohue said. “They’re challenging because the moratoriums are all different depending on what town you’re in.”
Noah Ginsburg, director of New York Solar Energy Industries Association, which advocates for solar energy objectives, said the local moratoriums have prevented the installation of 4.6 gigawatts of solar energy sources.
“Local governments are abusing their zoning ordinances to ban community-scale renewable energy projects,” Ginsburg said. “Meanwhile, the bigger utility-scale projects that benefit from state-level permitting are the projects that have a more significant land use impact.”
In July, the New York State Energy Research and Development Agency issued a report acknowledging the state would not reach its 2030 renewable energy supply requirement. Wind power is now expected to reach 6 gigawatts by 2033 and the original goal of 9 gigawatts by 2035. The report also pushed the deadline for 70% renewable sources to 2033.
Doreen Harris, president and CEO of the agency, had said in July that missing the 2030 deadline was not “the end. It’s a milestone along the way.”
Staff Writer
Olivia Holloway is a summer reporting intern for the Times Union. Holloway is a student at Cornell University where she is a junior majoring in communication with minors in education, law and society. She graduated from Amsterdam High School and has written for Pipe Dream at Binghamton University and is a news writer for the Cornell Daily Sun. She can be reached at 518-612-0981 or Olivia.Holloway@timesunion.com.
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