Court Sides With Solar Liberty In Busti Dispute
JOHN WHITTAKER | Editor | jwhittaker@post-journal.com
A solar energy developer will be allowed to proceed with a disputed development on South Main Street Extension in Busti.
State Supreme Court Judge Grace Hanlon ruled in favor of Solar Liberty Energy Systems. The decision reverses the town of Busti’s decision to consider the existing project dead and force Solar Liberty to wait until a moratorium on new solar development in the town expires.
“As a result of the foregoing, the court agrees with (Solar Liberty) and their request to void, vacate, annul and declare invalid the determinations and actions of (Busti) of and related to issuing a letter on or about March 20,, 2023, stating ‘the town considers the application withdrawn’ as to the application by (Solar Liberty) for a special use permit for a solar energy system that would provide clean, renewable energy to the community and the New York State power grid, is granted,” Hanlon wrote in her decision.
Solar Liberty applied for a special use permit for a solar panel energy project at 1255 S. Main St. Ext. Busti, in December 2020. The town Planning Board recommended in September 2021 the Town Board issue a positive declaration under the state Environmental Quality Review Act, a recommendation that was fought by Solar Liberty officials. Town board members issued the positive SEQR designation in March 2022, a ruling that did not contain any time frames for the required additional submissions to the town under state law. The solar developer contends Busti had to provide Solar Liberty with a copy of the actual SEQR positive declaration and publish the declaration in the state DEC Environmental Notice Bulletin. Busti didn’t do so, and that was the final communication between the two parties about the project until a March 20, 2023, letter from the town saying the town considered the project withdrawn and that a new application was needed.
Solar Liberty filed suit in April seeking to have the letter nullified. Attorneys made arguments in court documents throughout June in advance of oral arguments on June 20. Busti attorney Joel Seachrist had argued the lawsuit should be dismissed because Solar Liberty hadn’t used all available administrative remedies to challenge the board’s decision and that Solar Liberty could simply begin the process again by submitting a new proposal.
“The court does not find any credence in the respondent attorney’s claims that the petitioner has failed (to) exhaust all their administrative remedies to challenge (Busti’s) decisions,” Hanlon wrote in her decision. “(Busti) cannot prove that they provided notice of their decision to the petitioner. (Busti) cannot prove that they provided an affidavit of service of the decision nor did they provide proof that they complied with 6 NYCRR 617.12(b)(1)(v) requiring (Busti) to provide petitioners with a copy of the actual SEQRA positive declaration, nor did the respondent provide proof that they published the positive declaration pursuant to 6 NYCRR 617.12(c)(1). Lastly, (Busti) fails to cite any law, or notice to the petitioner, that provides that (Solar Liberty) was required to act within a time frame, or their application would be withdrawn.”
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