The Intersection of New York’s Public Utility Use Variance Standard and the Climate Leadership and Community Protection Act

Have the goals of New York’s CLCPA have been met?

No, yet successful achievement of the goals of the CLCPA is one of the highly questionable conclusions a zoning board of appeals adopted in finding that a Community Solar Project was not a public necessity justifying the grant of a use variance. Now that determination is before the state courts, the second time this ZBA’s rejection of the solar project has been challenged.

The dispute concerns the application of the public utility use variance standard, which requires local zoning authorities to consider the public necessity for a utility project, rather than applying the standard state-mandated variance considerations.  After being directed by a court to apply the public utility standard to the solar project, the ZBA found the solar developer had failed to establish that the project was a public necessity, a decision that rested mainly on the Board’s conclusion that there was no demand for solar in the town or county, and even if there was, another proposed large solar project satisfied that need. 

Most legal disputes involving the public utility standard concern whether it is applicable, while this new dispute delves into what constitutes a public necessity. My colleague Alicia Legland and I recently wrote an article in the New York Law Journal outlining the history of the public utility variance standard and the tension between municipal home rule zoning powers and energy generation and distribution companies. The CLCPA and its related state policies add another dimension to the debate, and we explore how the ZBA went about this consideration, and how the courts may address the debate here and in future cases.

Read the article here.