Development

In landowner’s article 78 proceeding challenging denial of a use variance, landowner appealed from Supreme Court’s denial of the petition. The Appellate Division reversed and remanded for grant of the petition, holding that landowner had established entitlement to the variance under the standard applicable to public utilities.
In 2016, landowner bought two parcels in a rural residential zoning district for the purpose of building a solar energy generation facility. The following year, the town adopted a local law that prohibited solar facilities in all zoning districts except commercial and industrial zones. In 2021, landowner applied for a use variance, which the zoning board of appeals (ZBA) denied. Landowner then brought an article 78 proceeding. Supreme Court concluded that the ZBA had incorrectly applied the variance standard articulated in Town Law 267-b(2)(b), rather than a standard that requires a public utility to prove only the necessity for the variance. On remand, the ZBA concluded that landowner did not meet the public utility standard, and Supreme Court upheld that determination. Landowner appealed.
In reversing, the Appellate Division emphasized the state legislative objective of transitioning to renewable energy, particularly solar energy, and concluded that landowner had established the public necessity for the project, especially in light of the minimal impact the project would have. The court also noted that landowner could not move the project elsewhere because the local gas and electric company’s maps had indicated that there was no capacity for a project of similar size in zoning districts where the project would be a permitted use.