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Mar 17, 2020

Write your representative. Governor’s proposal to have state trump home rule for solar farms eschews public and unfairly shifts tax burdens

To the Editor:

I mailed this letter last Friday to Senator George Amedore and Assemblymember Patricia Fahy regarding the governor’s proposed budget amendment for renewable energy facilities.  Because of the truncated time for considering important public issues in the context of the state’s budget adoption, I’d appreciate the letters reprinting in your newspaper …

In short, we are reminding concerned residents who took time to raise concerns about the proper placing of solar facilities to express the same concerns with the governor and their state legislators. If adopted, the state’s law would unfairly restrict the application of the town’s new solar law and negate the town’s efforts to address the need for renewable energy, recognize property rights, and protect irreplaceable views of vistas and the Helderberg Escarpment.

Here is the letter.

Upon behalf of the town of Guilderland and its residents, I strongly oppose the proposed budget amendment, known as the Accelerated Renewable Energy Growth and Community Benefit Act, which was included in the governor’s 30-day amendments to the executive budget.

While the town supports the act’s goal of promoting renewable energy, many of its provisions are ill-advised and violate Municipal Home Rule Law §10(a)(1) which empowers the town to provide for the “protection and enhancement of its physical and visual environment.”  As shown below, the act undermines the town’s proper exercise of this authority and its resulting benefits to its residents.

The act imposes new procedures which “fast track” renewable energy facilities under a new Article 23 of the Economic Development Law and creates, a new office, the Office of Renewable Energy Siting, under the Division of Economic Development. This new state office would be required to issue permits for renewable energy facilities within one year of the application’s filing, with no meaningful public notice or opportunity to be heard for the town and its residents.

The act also penalizes a town, like Guilderland, which has opted out as allowed by Real Property Tax Law §487(8)(a), from providing a tax exemption or PILOT [payment in lieu of taxes] agreement, by now imposing a special assessment procedure that uniquely favors renewable energy facilities and creates an unfair shifting of the  tax burden to other property owners.

The town of Guilderland is a strong supporter of clean and renewable energy, as demonstrated by its designation as a “Clean Energy Community” by the New York State Energy Research Development Agency and a “Climate Smart Community” by the state’s Department of Environmental Conservation.

The proposed act eviscerates these designations and their worthy goals by imposing a truncated and ill-informed procedure that penalizes towns, like the town of Guilderland, which have enacted a balanced approach for considering solar energy facilities.

The proposed amendment negates local role and public involvement

New York State Public Service Law Article 10 currently provides that the state’s Board on Electric Generation Siting and the Environment, and not local boards, has sole authority to review and approve renewable energy facilities that generate at least 25 megawatts.

Smaller facilities which generate 25 megawatts or less are reviewed by local review boards and undergo a rigorous review under the State Environmental Quality Review Act process. The act would greatly expand the state’s exclusive jurisdiction by lowering the threshold to 10 megawatts and effectively precluding meaningful local review.

The act’s unwarranted negating of local board review of smaller sized facilities (between 10 and 25 megawatts) is ill-founded and an insult to the town of Guilderland’s well-considered local solar facility law.

The town’s robust solar law, which was drafted with input from residents, professional planners, state agencies, and solar energy companies, recognizes “right to farm” laws and protects property rights, and is tailored to protect visual and other environmental impacts on the town’s historic places, known vistas, and the Helderberg escarpment.

The town’s local solar law specifically incorporates siting considerations endorsed by the DEC’s Program Policy, entitled “Assessing and Mitigating Visual and Aesthetic Impacts,” last revised Dec. 13, 2019 and Scenic Hudson’s “Clean Energy, Green Communities: A Guide to Siting Renewable Energy in the Hudson Valley” and specific local resources including the Town’s Comprehensive Plan, “Rural Guilderland: Open Space and Farmland Protection Plan,” and the Mohawk Hudson Land Conservancy’s “Helderberg Escarpment Planning Guide.”

The act negates the town local solar law’s mandated consideration of these important local resources by only allowing such proof if they present “substantive or significant” issues.

The proposed act bars the town’s planning board and zoning board of appeals’ review of smaller sized facilities (10 to 25 megawatts) and greatly weakens the state’s current Article 10 review of 25 megawatt or greater facilities. The act states that the new Office of Renewable Energy Siting may elect not to apply any local law that it deems “unreasonably burdensome” to the state’s clean energy goals.

This new language effectively allows a remote state agency to supersede and set aside local laws that are designed to mitigate impacts upon the town’s “physical and visual environment” as entrusted to the town by Municipal Home Rule Law §10(a)(11).

Unlike the town’s solar law, which requires a two-board review, public notice, and public hearing, the act has no requirement for local involvement or a hearing unless the town can present a “substantive or significant” issue that requires adjudication.

Indicative of the illusory local review, the act states that the town will not even be given notice of a proposal until after the Office of Renewable Energy Siting has already approved a draft permit.

There is no need for the act’s imposition of a time limit for action (one-year from date of filed application) as justification for transferring exclusive jurisdiction to a newly created state office. The town’s local solar law has allowed for the timely review and approval of several solar facilities, and the ongoing review of a proposed solar facility on the town’s closed landfill.

Much of the required time-consuming work, like wetland delineations, preparation of visual assessments, site plans, landscaping plans, and stormwater plans, and coordination with NYSERDA and local power companies, occurs well-before the submission of an application.

Even the federal government, when addressing concerns over the timeliness of local board review of proposed telecommunications towers, did not eliminate or restrict local review. To the contrary, the federal legislation expressly preserves local board review (“Nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service …”), and provides for a reasonable “shot clock” for local board action.

Simply put, the proposed act is an unjustified intrusion to the home rule afforded to the town to protect “its physical and visual environment” by Municipal Home Rule Law §10(a)(11). The effort to impose this radical expansion of state authority in the budget amendment process is inimical to a proper consideration of the proposed act’s impacts upon the well-considered purposes of the local solar law.

The proposed amendment unfairly shifts tax burdens.

The town of Guilderland has exercised its right under New York State Real Property Law §487(8)(a) by choosing to opt out of providing a PILOT [payment in lieu of taxes] agreement or tax-exempt status to renewable energy facilities.

The proposed act would negate that choice and require the town assessor to assess such property using an income capitalization or discounted cash flow approach that includes: (i) an appraisal model identified and published by the Department of Taxation and Finance and NYSERDA; and (ii) a discount rate published annually by the Department of Taxation and Finance and NYSERDA.

This scheme provides the state with the authority to establish a low discount rate and use an appraisal model that essentially renders the local assessment meaningless and curtails the ability of the town to equitably tax real property.

This new assessment regimen negates the town’s decision to tax renewable energy facilities in the same manner as other income-producing properties. The growing number of approved and proposed renewable energy facilities in the town shows that the town’s election to opt out of favorable tax treatment has not discouraged the siting of solar facilities in the town.

As a founding member of the local Community Choice Aggregation Program, the town is committed to the use of locally produced renewable energy for the town’s residences. The proposed scheme serves no valid purpose, negates the local community’s choice over providing tax preferences, and, instead, imposes a statewide model without regard to local considerations at the heart of the state’s tax assessment process … .

Peter G. Barber

Town Supervisor

Guilderland

Published by The Altamonte Enterprise

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