BY PAUL MITCHELL
North Country This Week

CANTON – Proposed changes in the rezoning in Town of Canton code has sparked concerns from EDF Renewables, developers of the 240-megawatt Rich Road Solar Energy Center (RRSEC).

A public hearing on the revised town code is slated for Oct. 10 at 6 p.m. at the Canton Municipal Building, 60 Main St.

EDF Renewables expressed their concerns to the town board via a letter dated June 14. The letter was written and submitted by Laura Bomyea Darling, Esq., Young/Sommer LLC, attorneys for EDF Renewables.

“Over the past year in particular, the RRSEC team has met several times with representatives from the Town to discuss the Town’s Current Solar Law (Local Law Number 3 of 2019) and Current Battery Energy Storage System Law (Local Law Number 1 of 2021) and their applicability to RRSEC, as well as potential provisions of these laws from which RRSEC may need to seek relief. Relying on these discussions, EDF Renewables’ subsidiary, Rich Road Solar Energy Center, LLC submitted its Application to the Office of Renewable Energy Siting (“ORES”) on March 31, 2023. However, RRSEC only recently learned that the Town was undertaking a rezoning effort, repealing the Solar and BESS Laws upon which RRSEC relied,” the letter states.

“We were surprised and concerned because these changes were not raised in the years-long discussions the RRSEC has had with the Town, and because these changes, if applied to the RRSEC project, appear to prohibit solar in approximately one third of the RRSEC project area, and impose other substantive requirements that would necessitate either substantial changes to the project or else significant additional waivers from ORES of the Town’s laws.”

“It is unclear from the text of the proposed law whether the Town intends the Zoning Amendments to apply to RRSEC. In informal discussions our team has had with the Town, it was suggested that the Town did not intend these changes to apply to RRSEC, which has already applied for a Section 94-c Permit from ORES, however the text of the enactment does not make that clear, and the structure of the ORES regulations will exacerbate this lack of clarity later in the Section 94-c permitting process. For that reason, we respectfully request that, if the Town decides to adopt these changes, the Town Board include language in its enactment making it clear that these changes apply prospectively to projects which apply for permits in the future, and not to projects which have pending applications before the Town or ORES.”

EDF claims the zoning amendments will significantly harm the project, especially at this late stage.

In particular, the proposal rezones numerous project parcels along Route 11, Old Route 11, and the Route 68 end of the Irish Settlement and Old Dekalb Roads from Rural zoning (R) to either Residential Agriculture (RA) or Mixed Use (MU). Under the Current Solar Law, Canton allows large-scale solar projects such as RRSEC in the R and Commercial (C) zones. All of the RRSEC project is proposed in the existing R and C zones, where it is presently a permitted use. However, the proposed Zoning Amendments will prohibit large-scale solar in the C zone (where it is currently permitted), as well as the newly created RA and MU zones. As a result, several of the RRSEC solar arrays as well as the Facility’s substations1 would appear to no longer be permitted uses under the Zoning Amendments. It is unclear why these parcels are being rezoned, whether the landowners are aware of the proposed changes or how they may affect the landowners’ rights to lease land for solar development. Moreover, the proposed legislation does not include an explanation of why the Town is reducing the zones where large-scale solar uses are permitted, and whether that change is consistent with the Town’s comprehensive plan, the letter reads.

Town responds

William Buchan, the town’s solar attorney, said the state Office of Renewable Energy Siting (ORES) will make the final determination where the EDF Renewables solar center will be located after weighing the competing interests.

“In sum, this issue is at the intersection of two mandates by two different New York State Agencies, the Department of State, whose grant funds paid for the planning effort to develop a Comprehensive Plan authored by the Town of all of the Villages within it. The so-called "codification process" amends the Town Zoning Law to conform to the changes recommended by the Comprehensive Plan,” said Buchan.

The process of developing the Comprehensive Plan and codifying the changes has been an ongoing Town project since 2019 and likely several years beforehand. The upcoming public hearing is the next step in this long process of adopting the new law that will implement the changes to the Town Zoning Ordinance,” he continued.

“Zoning and planning are essential to defining the character of the community and are a definitive statement of community values,” Buchan stated.

He noted that EDF's concerns are that the proposed changes in the zoning maps will move the proposed solar array out of certain areas, e.g., the Route 11 corridor that are planned for future commercial development and open other areas to solar development where EDF does not have current leases.

“EDF and its counsel have seized upon the timing of the codification to urge the Town to exempt it in one form or another. That would preserve EDF's plans as set forth in its now incomplete permit application to ORES,” Buchan remarked. “That strikes us as backwards, since ORES has the power and mandate to determine where a Major Power Plant should be sited and has the power to "preempt" Town laws like the one at hand when ORES determines that local laws are "unreasonably burdensome" to a developer.

The town’s solar attorney also pointed out that Town must complete its long process of weighing alternatives and setting forth in local law a comprehensive plan reflected in an updated zoning ordinance precisely because it is necessary for ORES to know the community's values and its plans for future development in the Town for the benefit of all its citizens.

“ORES, according to its own statutory mandates, must weigh the competing interests of all involved and make a determination where the solar project should be located and where it should not. The Comprehensive Plan and updated zoning ordinance is Canton's statement of its community values and we have every expectation that ORES will respect the Town's views, said Buchan. “We urge ORES to make the right decision. One that is respectful of those community values. “