State budget Nixes Solar farm- Article 78 Last Hope

While Gov. Andrew Cuomo agreed to a 2019 state budget provision that adds over 800 acres of Shoreham property along with approximately 170 acres of Mastic Woods to the core pine barrens, the 100-acre Middle Island Solar Farm was not included. 

Affiliated Brookhaven Civic Organization president MaryAnn Johnston commented there was one more rabbit in the hat: the Article 78 filed against Brookhaven Town and Middle Island Solar Farm managing partner Gerald Rosengarten by ABCO and the Long Island Pine Barrens Society. 

The plaintiffs are expected to hear soon from Suffolk County Supreme Court Justice William Ford on a decision, she said. 

“It’s the town code we’re challenging,” Johnston explained. “I think the law is clear that any project where land is cleared prior to Jan. 1, 2016 is exempt,” she said, referring to the Renewable Energy Systems zoning code for solar, amended and passed by the town board Oct. 27, 2016. The town code says solar energy production facilities are permitted on lands previously cleared or disturbed before that date; managing partner Gerald Rosengarten started clearing 60 acres on Feb. 28, 2018. 

“This is a country of law,” Johnston added. “We’re asking the court to stop this project questioning whether they had the right to develop.”

The state budget vote, a rather bruising effort this year, saw a deal reached at 2 a.m. Saturday morning, said officials. While MISF wasn’t targeted, state budget language does direct the county to identify appropriate parcels of industrial and business zoned properties in the town of Brookhaven, including state and municipally owned property of at least five acres, lands cleared or previously disturbed before January 1, 2016. The report must be submitted no later than Jan. 1, 2020.

Former Legis. Kate Browning had already gotten the ball rolling on potential solar sites that would help power Suffolk County’s John L. Barry Police Headquarters instead of a tree takedown on its grounds by introducing a county planning committee in 2016 to come up with alternate solar sites. Brookhaven Town has since identified a number of potential cleared sites, about a dozen. 

Long Island Pine Barrens Society executive director Richard Amper added he thought the town was still trying to find a way to save land. “[Assemb. Steve Englebright] had identified a couple of spots and I think town planning identified a couple of sites where this could go,” he said, referring to Englebright (D-Setauket), who, with state Sen. Ken LaValle (R-Port Jefferson), proposed legislation to save the Shoreham and Mastic Woods parcels vetoed last year.

“My position is they are unlikely to accomplish very much, but I think they’re putting sanctions in place where this will never happen again,” Amper said. “I think the town is still trying to find a way to save some of that land in hopes it will grow back in moving a portion to another location.”

It’s too early to tell if further efforts will be made by Englebright and LaValle on the Middle Island Solar Farm land, an official said. But LaValle promised in a statement, “… Be assured that I will continue to work on preserving additional lands by adding to the Pine Barrens Preserve. By taking this long-term view, we reaffirm our commitment to the environment for future generations to keep our air, land and waters pristine.” 

The race has been on for months for possible preservation. Last week it seemed some kind of negotiation was possible. 

Rosengarten attended a meeting at Cuomo’s Manhattan office with staff on March 26; a call was made to Brookhaven’s town attorney’s office, said a town official.  

On March 28, Connelly, McLaughlin & Woloz’s Karen Imas, lobbyist for Rosengarten, emailed that, “the governor’s staff and MISF are in general agreement about conserving 40 acres of land.” 

Some of the stumps were out, but not all, at the time of the email.

As far as the possibility of a 20-acre land swap with the town, Imas emailed that “[Rosengarten] would sell the 20 for conservation purposes in addition to the 40 acres if the town could find a 20-acre site he could lease and place panels on. It would have to have the requirements of the PPA contract. The town sounded positive on a deal of this sort at the governor’s meeting but hasn’t committed to anything after that meeting. Landfill is apparently still a possibility. We are hopeful that the town will join MISF and the governor on making this deal happen … MISF has long been committed to preserving and protecting the environment and believe this would be a positive outcome.”

But a 40-acre buffer was already required as a preservation hedge by the town. People close to the Rosengarten/town negotiations said the land covenanted as a buffer is already protected.

Last week a town official commented, “Supervisor Romaine was on the phone just recently with Steve Englebright; they’re still looking to preserve the entire site.” Romaine issued a statement that he was working with state legislators on the parcel’s preservation and was hopeful Cuomo’s budget would include language to preserve it.

But even with the governor’s recent budget decision, “the town’s position has not changed,” said Kevin Molloy, a town spokesman.

While there were ardent preservationists, some half-hearted efforts didn’t help, including those of the Central Pine Barrens Commission, which initially as a group wouldn’t go on record that potential alternate sites had been identified.

“It was one error compounded by another,” said Amper.

Those included, as Johnston has pointed out, confusing testimony given by MISF on AC/DC explanations and the sudden declaration that they had the proper megawatts required all along to the town planning board in December 2017; town planning ultimately approved the phased plan on Jan. 8, 2018. While Amper had written a letter to Cuomo, Englebright and LaValle with 46 organizations supporting expanding the pine barrens core preservation area, about 10 organizations lined up including Citizens Campaign for the Environment executive director Adrienne Esposito, asking Cuomo to veto the Englebright/LaValle bill, along with Reliable Energy Long Island and New York League of Conservation Voters. In addition, Greenberg Traurig attorney for MISF Robert Rosenthal formerly served as assistant counsel in Cuomo’s General Counsel Office. Rosenthal is also listed as New York League of Conservation Voters Capital Region Chapter chair. And Rosengarten hired a lobbyist.

There is one saving grace, Amper said. “The governor’s budget message included a component whereby the Suffolk County Planning Department needs to complete a study on where solar will be sited in the future and the state will look at other pine barrens parcels that need preservation,” he said. “That tells me that this shouldn’t have happened and won’t again.” 

By Linda Leuzzi, Long Island Advance

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