The opinion
CP Vestal LLC v Town of Vestal
2025 NY Slip Op 31659(U)
May 8, 2025
Supreme Court, Broome County
Docket Number: Index No. EFCA2024003023
Judge: Eugene D. Faughnan
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
At a Term of the Supreme Court of the State
of New York held in and for the Sixth
Judicial District at the Broome County
Courthouse, Binghamton, New York, on the ·
3r<1 day of February 2025, by virtual
appearances.
PRESENT: HON. EUGENE D. FAUGHNAN
Justice Presiding
STATE OF NEW YORK
SUPREME COURT: COUNTY OF BROOME
CP VESTAL LLC and RPNY SOLARS, LLC,
DECISION, ORDER and
Plaintiffs/Petitioners, JUDGMENT
Index No. EFCA2024003023
For Judgment Pursuant to Article 78 of the CPLR and for
A Declaratory Judgment, pursuant to CPLR §3001
VS;
THE TOWN OF VESTAL, NEW YORK, and
LINCOLN ELLIS, in his official capacity as
the Code Enforcement Officer of the Town
of Vestal, New York
Defendants/Respondents.
APPEARANCES:
Counsel for Plaintiffs/Petitioners: The Wladis Law Firm, P.C.
BY: CHRISTOPHER BAIAMONTE, ESQ.
6312 Fly Road
East Syracuse, NY 13057
Counsel for Town Coughlin & Gerhart LLP
Defendants/Respondents: BY: ROBERT H. MCKERTICH, ESQ.
GINA M. MIDDLETON, ESQ.
99 Corporate Drive
P.0. Box 2039
Binghamton, NY 13904
[* 1]
EUGENE D. FAUGHNAN, J.S.C.
This is a combined Article 78 and declaratory judgment action related to Special Use
Permit Applications submitted for two solar developments in the Town of Vestal. The
Petitioners are CP Vestal LLC and RPNY Solar 8, LLC (collectively "Petitioners"). Both of
them are solar developers seeking to construct solar arrays in the Town of Vestal. The
Respondents are the Town of Vestal and Lincoln Ellis, the Town Code Enforcement Officer.
The declaratory judgment aspect of this action seeks to declare Local Law No. I of the Year
2024 entitled ''A Local Law Placing a Temporary Moratorium on Approvals Regarding Solar
Array Farms" invalid, unlawful, null and void. The Article 78 component is in the nature of
mandamus to compel Respondents to process Petitioners' Special Use Permit Applications in
accordance with the Town's Solar Energy Local Law enacted in October 2023. Respondents
filed a Verified Answer and Opposition to the Petition. 1 Oral argument was held virtually on
February 3, 2025, at which time counsel for both parties were present. After due deliberation,
this constitutes the determination of this Court.
BACKGROUND FACTS
RPNY has been exploring options for the development of a solar facility at 840 South
Jensen Road in the Town of Vestal since 2019. CP Vestal has been attempting to construct a
solar facility at 392 Ross Hill Road since 2022.
RPNY alleges that in July 2019, Mr. Ellis advised that solar development was allowable
under the Town Code as a "Public Utility Structure". Based upon that representation, RPNY
continued to pursue the development and took preliminary steps toward that objective.
However, when RPNY sought a formal declaration that its project would qualify as a "Public
Utility Structure" in April 2021, Mr. Ellis stated that the project did not meet the criteria because
RPNY was a private venture electric producer. RPNY appealed to the Zoning Board of Appeals
("ZBA") in June 2021. In August 2021, the ZBA upheld Mr. Ellis's interpretation that RPNY's
1 All the papers filed in connection with the Petition and opposition are included in the NYSCEF electronic case file
and have been considered by the Court.
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proposed solar development would not be a "Public Utility Structure". RPNY did not challenge
ZBA' s determination.
The Town of Vestal did not have a solar ordinance in place in 2021. After the ZBA
decision, the Town Board passed a Local Law in September 2021 which placed a six-month
moratorium on approv~s of any solar array farms (Moratorium No. 1). The stated purpose for
the moratorium was to provide time for the Town Board to review whether regulation of solar
projects was needed, and if so, to draft a new solar law. The Town was unable to complete a full
evaluation and write a new law in that time, so, at a meeting on May 25, 2022, the moratorium
was extended for another year, effective June 15, 2022 (Moratorium No. 2). On May 24, 2023,
the Town Board approved a further six-month moratorium, effective July 7, 2023 (Moratorium
No. 3). Finally, in October 2023, the Town adopted a Solar Energy Law (Local Law No. 9 of
2023).
With a new Solar Energy Law in place in the Town, RPNY submitted its first Special
Use Permit Application on January 22, 2024, seeking approval to construct solar arrays. RPNY
representatives attended a Town Planning Board meeting on February 13, 2024 to present
RPNY' s proposal and solicit comments. Based on the comments and concerns, RPNY filed an
Amended Special Use Permit Application on March 7, 2024. The Planning Board. considered the
project at a meeting on March 19, 2024 and determined that it did not recommend moving the
project forward. On June 12, 2024, the Town Board passed Local Law No. 1 of 2024, which
imposed.another 12-month moratorium on any solar projects (Moratorium No. 4), thereby
precluding any actions to be taken under the Solar Energy Law, or consideration of any Special
Use Permit Applications.
CP Vestal has been seeking to construct its solar facility since 2022, and like RPNY, was
working with Town officials to assist in the development of solar energy regulations for the
Town of Vestal. And, likt? RPNY, after Moratorium No. 3 expired, CP Vestal submitted a
Special Use Permit Application. The date of that application was March 11, 2024, and it was
scheduled for the Planning Board's April 8, 2024 agenda, but then was removed due to the Town
Board's decision to further consider the Solar Energy Law and a possible fourth moratorium.
The Town has not issued any determination on the CP Vestal application, due to the enactment
of Moratorium No. 4.
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After the Solar Energy Law was passed in October 2023, Town-wide elections in
November 2023 resulted in three new members coming on to the five member Town Board.
Additionally, the Town replaced the longtime Town Attorney with a new Town Attorney in
2024. Respondents contend these personnel changes resulted in a shift in the Town's solar
energy policies and new views on solar development.
Petitioners filed this action on October 25, 2024 with two causes of action. The first is
for declaratory judgment that Local Law No. 1 of2024 (a/k/a Moratorium No. 4) is invalid
because it is in contravention of the Town's established Solar Energy Local Law, and not based
on sufficient grounds. The second cause of action is for a writ of mandamus compelling
Respondents to process Petitioners' Special Use Permit Applications because the applications
were submitted prior to the implementation of Moratorium No. 4. Petitioners argue that the
Town has improperly utilized repeated successive moratoria to prevent solar development within
the Town, and that the most recent moratorium is a violation of the Town's duly enacted Solar
Energy Law.
LEGAL DISCUSSION AND ANALYSIS
A. Petitioners' Request for Declaratory Judgment Invalidating Local Law No. 1 of2024
The 2024 moratorium passed by the Town halted consideration or processing of any
requests for the construction solar arrays in the Town. In the context of land use and zoning, a
moratorium is essentially a temporary pause or restriction on developments within the
municipality.
Moratoria fall into two main categories. They can be predicated on the "police powers"
of the municipality, or its land use authority. Characterizing the type of moratorium involved is
crucial to determining the validity of the regulations and the standard of review.
A municipality's invocation of its "police powers" to adopt temporary land use restraints
in "furtherance of the public health and welfare" will be upheld as long as the restriction is
tailored to the necessity presented, and reasonably limited in duration. Charles v. Diamond, 41
NY2d 318, 324 (1977); see Pete Drown, Inc. v. Town Bd ofEllenburg, 188 AD2d 850 (3 rd Dept.
1992). The Court of Appeals has adopted a three-prong test to evaluate a police powers
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moratorium. "[T]he municipality must establish that it has acted in response to a dire necessity,
that its action is reasonably calculated to alleviate or prevent the crisis condition, and that it is
presently tal<lng steps to rectify the problem." Matter ofBelle Harbor Realty Corp. v. Kerr, 35
NY2d507, 512 (1974); Charles v. Diamond, 41 NY2d at 326. Examples of police powers
actions include: a moratorium on the construction of any fast food establishments in "response to
the problems of traffic congestion and littering" [McDonald's Corp. v. Elmsford, 156 AD2d 687,
689 (2nd Dept. 1989)]; revocation of building permits where an outdated sewer system could not
sustain additional development [Belle Harbor Realty Corp. v. Kerr, 35 NY2d 507], and passing a
local law banning commercial incinerators to include a situation where potential chemical
hazards from medical waste posed a threat to the public [Pete Drown, Inc. v. Town Bd of
Ellenburg, 188 AD2d 850]. If operating pursuant its police powers, a municipality need not
comply with zoning law procedures, such as referral to the Planning Board or County Planning
Department, as would be the normal procedure under General Municipal Law§ 239-m. Id
Instead, the urgent public need justifies prompt action.
Alternatively, under its land use powers, a munic;pality is permitted to enact "stopgap" or
interim measures to prohibit a particular land use, and maintain the status quo while it reviews
current ordinances and evaluates an overall plan. Lakeview Apartments ofHunns Lake, Inc. v.
Stanford, 108 AD2d 914 (2 nd Dept. 1985); See, 119 Dev. Assoc. v. Village ofIrvington, 171
AD2d 656 (2nd Dept. 1991); Land Use Moratoria, James A. Coon Local_ Government Technical
Series, New York Department of State (2024), at p. 1. That type of moratorium is intended "to
allow a [municipality] to take reasonable measures temporarily to protect the public interest and
welfare from the establishment of inconsistent land uses until a definitive ordinance is enacted."
15 Warren's Weed New York Real Property§ 157.21(1) (2025) (citation omitted); see, Lakeview
Apartments ofHunns Lake, Inc. v. Stanford, 108 AD2d 914. A land use moratorium must further
a reasonable public purpose and may not exceed a reasonable period of time. Cellular Tel. Co. v.
Village ofTarrytown, 209 AD2d 57 (2 nd Dept. 1995); Mitchell v. Kemp, 176 AD2d 859 (2 nd
Dept. 1991 ).
Police power moratoria are typically used to address an urgent public need, while land
use moratoria are utilized to permit further investigation and deliberation of regulations which
will best achieve the long term goals of the community. The distinction between the two types of
land µse moratoria is important since they have different standards of review.
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A municipality may not invoke its police powers as a pretext for a moratorium to appease
community objections. See Matter ofBelle Harbor Realty Corp. v. Kerr, 35 NY2d 507; Matter
ofMHC Greenwood Vil. NY, LLC v. County ofSuffolk, 58 AD3d 735 (2nd Dept. 2009); Cellular
Tel. Co. v. Village of Tarrytown, 209 AD2d 57. On the other hand, a municipality may not enact
a moratorium under its land use powers that exceeds the scope of the land use needs.
Petitioners' specific declaratory judgment challenge is to Moratorium No. 4, enacted in
June 2024, that precluded the granting of approvals for the development of any solar array farms.
After considering the language and purpose of Moratorium, the Court concludes that Moratorium
No. 4 is a land use moratorium and not a police powers moratorium.
Moratorium No. 4 states that it is being passed to halt development of solar land uses due
to a concern that the projects could be located in unsuitable spaces. It further states that the
Board needs more time to consider where those developments should be located so as to permit
planned growth of the Town. While acknowledging the passage of a Solar Energy Law in
October 2023, Moratorium No. 4 states that revisions to the law were needed. In particular, the
Moratorium noted that subsequent to the enactment of the Solar Energy Law, many residents had
been contacted by developers to obtain long term leases on real property in the Town, which
could have a significant impact on land development within the Town. The Court concludes that
the language of the moratorium shows it is intended to allow the Board to further evaluate and
consider the current regulations and possible modifications, as part of a comprehensive plan to
further the long-term goals of the community. The language is a strong indicator of a land use
moratorium.
Respondents also submitted affidavits from Lincoln Ellis and Town Supervisor Maria
Sexton. As noted by Ms. Sexton, the Town of Vestal Board consists of five members, three of
whom were elected in November 2023. Those newly elected individuals campaigned on the
need to improve zoning laws within the Town. Ms. Sexton's affidavit stated that the previous
Board had promoted business development without adequately providing protection for
landowners and residents. One goal of the reconstituted Board was to develop a comprehensive
plan for land use, including solar projects. Coincidentally, Moratorium No. 3 was set to expire
on January 7, 2024, just days after the new members joined the Board on January 1, 2024. Ms.
Sexton furthepexplained that upon taking office she began to familiarize herself with the Town's
nascent Solar Energy Law and noted various shortcoming which she felt should be addressed.
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After the expiration of Moratorium No. 3 on January 7, 2024, RPNY submitted is
application for a solar array project. Accordingly, under the Town's 2023 Solar Energy Law, the
application required review of the application by the Cod~ Enforcement Officer for completeness
(Solar Energy Law § 8( 1)) and then consideration by the Town Planning Board. (Solar Energy .
Law§ 8(2)). At a Planning Board meeting in February 2024, concerns were raised about the
impacts of solar development on nearby properties including visual appeal, effects on wetlands
and fire safety. According to Ms. Sexton, she also began to receive objections and complaints
from residents about solar developments within the Town. No action was taken on RPNY's
application at the Planning Board's February 2024 meeting.
The RPNYproject on Jensen Road was next on the agenda for the Planning Board
meeting on March 19, 2024. The Planning Board determined to recommend disapproval of the
project, and sent a letter to the Board dated April 9, 2024 with that recommendation, citing
concerns of proximity to neighbors, impact on the surrounding area, and potential devaluation of
properties. However, on March 27, 2024, the Town Board began discussing another
moratorium, so it appears the Town Board took no action on the Planning Board's disapproval of
the RPNY project.
The CP Vestal project on Ross Hill Road was scheduled to be addressed at the Planning
Board meeting in April 2024 but was apparently removed from the agenda. The application was
not considered due to the Town Board's concerns about solar development and the possibility
that the Board would seek another moratorium to allow the new Board to further consider the
desirability and parameters of any solar project development.
The affidavit from Mr. Ellis states that his department has been working on the solar law
question since the middle of 2020. He denied advising Petitioners that their solar project would
qualify as a "public utility structure". Ultimately, he concluded that the proposed development
did not constitute a "public utility structure" and his determination was upheld by the ZBA. He
denied that there was any intent to frustrate or delay the Petitioners' applications.
There are no suggestions that Moratorium No. 4 was based on any urgent situation or
threats to public health and safety, nor is there any other evidence of it being based on "police
powers". The plain language of the moratorium is most consistent with a temporary pause for
comprehensive review. The information shows that this moratorium is not based on authority
under the Town's police powers. Rather, the moratorium is intended to permit the Board to
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further consider its position wi_th respect to any solar development, which is more closely
associated with land use moratoria. Since Moratorium No. 4 was a land use moratorium, it must
serve a valid purpose and be of a _reasonable duration. Matter ofRoanoke Sand & Gravel Corp.
v. Town ofBrookhaven, 24 AD3d 783, 786 (2nd Dept. 2005); Cellular Tel. Co. v. Village of
Tarrytown, 209 AD2d 57. Petitioners have the burden of overcoming the presumption of
constitutional validity of the ordinances. Unanue v. Gardiner, 105 AD2d 1025 (3 rd Dept. 1984).
Respondents argue that Moratorium No. 4 was legitimately enacted to serve a valid
purpose- to allow the Board to further evaluate the possibility and desirability of amending the
Solar Law. As previously mentioned, the language of Moratorium No. 4 addresses a concern of
unsuitable placement of solar facilities and shows the Town Board's attempt to provide orderly
growth and development of the Town's lands, while also conducting a review of the 2923 Solar
Energy Law. It is also significant that there were new members on the Board in 2024, who had
not been present when the 2023 Solar Energy Law was enacted- in fact, the majority of the
members were new in 2024. The moratorium further states that the Board was seeking to develop
a Comprehensive Plan that would include consideration of solar array farms, and the Board's
belief that the 2023 Solar Energy Law needed revisions. Ms. Sexton identified the concerns of
the new Board members over the impact that solar development could have on the community,
as well as comments from concerned citizens which followed the enactment of the Solar Energy
Law. Based upo_n the views of the Board members and public concern, the moratorium would
permit the Town to develop a future plan consistent with the goals of the new Board and the
community.
On the other hand, Petitioners believe that all the debate and analysis should have been
completed with the enactment of the 2023 Solar Law and that there is no basis to enact further
regulations. However, Petitioners appear to be arguing that Respondents have not established an
urgent need or emergency to enact a moratorium. That would be the standard of review if this
was a police action, but this is a land use action. However, Moratorium No. 4 is designed to-
enhance a plan for land use for the overall benefit of the Town. The Court concludes that there is
a valid purpose supporting the moratorium.
The next issue is the duration of the moratorium. There is no hard and fast rule of how
long a moratorium can last, but it must be for a reasonable duration. See, 15 Warren's Weed
New York Real Property§ 157.21. Reasonableness is, by nature, fact specific.
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Moratorium No. 4 is for a period of 12 months. That is a reasonable time frame for
consideratio~ of a change in the laws concerning solar developments. See e.g. Matter ofLaurel
Realty, LLC v. Planning Bd of Town ofKent, 40 AD3d 857 (2 nd Dept. 2007) (8 month
moratorium followed by extensions of 8 months and 4 months to consider updates to the Town's
master plan and comprehensive changes to it zoning ordinances was reasonable); Matter ofRossi
v. Town Bd ofTown of Ballston, 49 AD3d 1138 (3 rd Dept. 2008). In fact, the Vestal Town
Board previously authorized a 12-month moratorium in May 2022 (effective June 15, 2022) to
consider a review and study of solar array farms and regulations. Despite Petitioners'
involvement, they did not challenge any of the prior moratoria. Given the complexities involved,
the Court cannot say that a 12-month pause at this time is unreasonable.
Petitioners, however, argue that the combination of all four moratoria enacted here should
be considered when assessing the issue of reasona~le duration. Moratorium No. 1 was enacted
on September 22, 2021 for 6 months; Moratorium No. 2 was for a period of one year from June
2022; Moratorium No. 3 was enacted on June 26, 2023 for 6 months (to December 26, 2023).
The Solar Energy Law became effective on November 8, 2023, and Moratorium No. 4 was
authorized at the Public Hearing on June 12, 2024 for a period of one year with an effective date
of June 27, 2024. Although the first 3 Moratoria were not continuous, the Town did not accept
any special use applications during that time, so there was basically a moratorium from
September 2021 to December 2023; and then another moratorium on June 27, 2024.
Petitioners are correct that a municipality's use of successive moratoria could effectively
prevent an application from ever being considered and that such action would be
unconstitutional. See e.g. Mitchell v. Kemp, 176 AD2d 859 (the Town issued successive
moratoria resulting in a nearly five-year delay and still had not enacted a zoning ordinance);
Lakeview Apartments of Hunns Lake, Inc. v. Stanford, l 08 AD2d 914 (Town enacted a
moratorium in J977 prohibiting certain usages, which was reenacted yearly for at least five
years-the court found the Town's limitation on Petitioner's use of property was unconstitutional
and void); Lake Illyria Corp. v. Gardiner, 43 AD2d 386 (3 rd Dept. 1974) (Town Board enacted
ordinances prohibiting anything but residential use of properties for four consecutive years
pending completion of a comprehensive zoning plan, but no such plan was developed).
However, the distinguishing fact in this case is that the Town of Vestal actually did adopt a Solar
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Energy Law in 2023. Thus, the first three moratoria achieved the intended result of adopting a
new solar law; then the composition of the Town Board changed significantly.
At issue now is Moratorium No. 4, which came about due to the concerns raised by
constituents and new Board members as to possible shortcomings of the new solar law. In fact,
then, this is really the first moratorium following the passage of the new law. The Board's prior.
actions do not establish a pattern of delay, but rather, show a slow but steady effort to address the
solar energy concerns. Significantly, Petitioners did not challenge any of the first three
moratoria Under these circumstances, the Court concludes that the proper way to view
Moratorium No. 4 is as an independent ordinance, and not a continuation of the prior nioratoria
on solar development. However, any further delays or extension of the moratorium would have
to be closely reviewed, bearing in mind all the procedural matters previously set forth, to ensure
that the delay does not become unreasonable.
Moratorium No. 4 shows that concerns have come to light about how the new law will
impact the Town's future plans, particularly when the composition of the Board has changed.
Furthermore, the affidavit of Ms. Sexton shows that the Board has been actively seeking
information to implement any changes that are needed. Some of those actions were taken prior
to the adoption of Moratorium No. 4, but there have also been some after th~t date, including
meetings with the Town Engineer, the new Town Attorney, the Code Enforcement Officer,
discussions with other individuals who have experience with solar developments, the submission
of an application for a grant to obtain funds for consulting fees, and review of many state
publications. Ms. Sexton asserts that the Town is well into the process of implementing changes
or adopting a new law. Thus, the Board's actions have been designed to enact a solar law, and
then when concerns arose, to modify that law. There is no evidence that the Town Board has
intentionally engaged in tactics to prevent cqnsideration and/or approval of Petitioners'
applications. Therefore, there is no basis for the Court to invalidate Local Law No. I of 2024.
The moratorium serves a valid purpose and is of reasonable duration.
B. Article 78 for Writ of Mandamus
Petitioners also seek a writ of mandamus to compel the Town to process the Special Use
Permit Applications. If the Court ruled that Moratorium No. 4 was invalid and void, then there
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would be no basis to delay processing of the application under the Town's Solar Energy Law,
and a writ of mandamus would be appropriate. However, the Court has concluded that there is
no basis to invalidate Moratorium No. 4, so the Moratorium, on its face, prevents processing of
the applications. Nevertheless, Petitioners argue that their applications should still be processed
because their Special Use Applications were submitted when there was no moratorium on solar
development, so they are entitled to a determination under the Town's 2023 Solar Energy Law.
Petitioners assert that Respondents had a non-discretionary obligation to process their
applications, which should not be abridged by the adoption of a moratorium. Petitioners also
claim that a determination regarding RPNY' s application was actually due before the
moratorium went into effect, so the moratorium cannot deprive them of a decision which was
due before the pause imposed by the moratorium. Petitioners also cite to various "special facts"
which they believe show a pattern of bad faith or unjustified delay by the Respondents that
Petitioners believe establish their entitlement to a determination of their applications. The Court
will address these contentions.
The moratorium prevents the Town or any other municipal body from granting approvals
for solar array farms. The fact that Petitioners both had applications pending when Moratorium
No. 4 was enacted does not change that prohibition. See, e.g. West Lane Properties v. Lombardi,
139 AD2d 748 (2 nd Dept. 1988) (moratorium was enacted after the petitioner had applied for site
,'
plan ~pproval and, during the moratorium, the zoning law was amended); see also, Taylor Tree,
Inc. v. Town ofMontgomery, 251 AD2d 673 (2nd Dept. 1998) (moratorium was enacted after a
specJal exception use permit application was filed by Petitioners but the Planning Board was
prevented from taking any action during the moratorium). The Court has concluded that
Moratorium No. 4 is valid. Thus, the moratorium prevents any further processing of the
Petitioners' applications. See, Taylor Tree, Inc. v. Town ofMontgomery, 251 AD2d 673. No writ
of mandamus can be issued compelling the Town to process the applications at this time due to
the pause imposed by Moratorium No. 4, unless Petitioners can establish a basis to disregard or
circumvent Moratorium No. 4.
Petitioners' further contention that RPNY was entitled to a determination on its
application even before the moratorium took effect is not persuasive. Under the applicable
. provisfons of the Solar Energy Law, when an application is submitted to obtain a Special Permit
under the law, the applicant shall be informed within 20 days whether the application is complete
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or contains any deficiencies. If the application is complete, it is then forwarded to the Town
Planning Board which then conducts a site plan review. When that review is completed, the
matter is forwarded to the Town Board for a public hearing. See Solar Energy Law Sections 8
(A){l) and (2).
RPNY submitted its application on January 22, 2024 and comments were provided about
the application on February 23, 2024. Although it appears the response may have taken longer
than 20 days, RPNY did not challenge the minimal delay. RPNY revised is application and re-
submitted it on March 7, 2024. The Planning Board met on March 19, 2024 and decided to
recommend disapproval. The Planning Board issued its opinion on April 9, 2024 which was
against moving the project forward. Petitioners assert that the application should have been
forwarded to the Town Board for the scheduling of a public hearing within 62 days, pursuant to
Solar Energy Law§ 8{a)(5). A public hearing was not held, even though more than 62 days
.elapsed after the April 9, 2024 and before the adoption of Moratorium No. 4 on June 12, 2024.
Therefore, Petitioners believe that at least RPNY is entitled to a determination of its application.
The Court does not agree with Petitioners read~g of the Solar Energy Law.
After an application is submitted and reviewed by the Code Enforcement Officer and/or
Town Engineer for completeness, it is then sent to the Planning Board for a site plan review.
Solar Energy Law Sections 8 (A)(2). Upon completion of that revi~w, the proposed project is
sent to the Town Board for a public hearing, with the Planning Board's recommendation. The
Board then schedules the public hearing and when the public hearing is concluded, the Town
Board "shall take action on the application within 62 days." Solar Energy Law§ 8 (a)(S). The
62-day requirement is not a time limit as to the scheduling of the public hearing, but instead is
the Town Board's deadline for the Town Board's action after the public hearing. There has been
no public hearing yet, so contrary to Petitioner's position, the time to respond has not yet passed.
CP Vestal submitted its application on March 11, 2024 and did not receive any response
concerning completeness or deficiencies as required by Solar Energy Law Sections 8 (A)(l) and
(2). The matter was placed on the agenda for the Planning Board for April 8, 2024 but then
removed. The Solar Energy Law does not contain a time limitation on when the application
must be provided to the Planning Board for a site plan review, so it cannot be said that a
determination on the application is past due.
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The Court concludes that Petitioners' applications did not require the Town to provide a
response prior to the passage of Moratorium No. 4. With the enactment of Moratorium No. 4, no
determination is possible at this time.
Nonetheless, Petitioners argue that Respondents have acted in bad faith so Moratorium
No. 4 should be disregarded, and the applications should be processed under the 2023 Solar
Energy Law. In essence, Petitioners seek to revert to the law prior to the moratorium, and they
argue that there are facts present that justify not considering the moratorium. Although not
specifically stated, Petitioners seem to be invoking a "special facts" exception recognized i:p. the
caselaw.
The "special facts" exception is generally used to overcome the principle that a case
should be decided on the law existing at the time the case is decided. It is an argument .that
attempts to revert to the law previously in place. In the current case, there are not 2 different
laws, but only the 2023 Solar Energy Law. There is no law amending or altering the 2023 Solar
Energy Law. There is only a morat<;>rium placed on the law, which is a "pause" on the existing
law. If the Petitioner established that Moratorium No. 4 was invalid, then there would be a basis
to claim that the applications should be processed µnder the 2023 Solar Energy Law, but the
Petitioner failed to make that showing. At present, there is only one law, with a temporary
pause, and the "special facts" analysis is not applicable, but even if it was, Petitioners have not
established that any "special facts" exception applies.
Generally, the law as it exists at the time a decision is rendered is controlling. D'Agostino
Bros. Enters. v. Vecchio, 13 A.D.3d 369 (2 nd Dept. 2004); McDonald's Corp. v. Elmsford, 156
AD2d 687. However, if there are "special facts" present that "indicate that the Board 'acted in
bad faith and unduly delayed acting upon [the] application while the zoning law was changed'",
then it is appropriate to consider ~e facts under the prior law. Matter of Cleary v. Bibbo, 241
AD2d 887, 888 (3 rd Dept. 1997), quoting Matter ofBibeau v. Village Clerk of Vil. of Tuxedo
Park, 145 AD2d 478, 479 (2 nd Dept. 1988) (brackets in original). Petitioners seem to argue that
if they can establish "special facts", then the Town should be compel~ed to process their
applications under the 2023 Solar Energy Law. Even if the Court accepts that as a legal premise,
the facts and allegations here do not give rise to any claim that the Board acted in bad faith.
Instead, Respondents have demonstrated that almost immediately upon the new Board members
taking their positions, the members were engaged in discussions about amending the Solar
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Energy Law, and that they did so due to concerns about the long-term goals and plans for the
Town. The moratorium was not targeted toward these Petitioners or the result of bad faith. Nor
was it unduly protracted or designed to prevent consideration of Petitioners' applications. The
Petition does not allege that "the Board's actions were ' the product of malice, oppression,
manipulation or corruption." Cleary v. Bibbo, 241 AD2d at 888, quoting Matter of Magee v.
Rocco, 158 AD2d 53, 60 (3 rd Dept. 1990). While the Town Board may not have proceeded with
the speed which Petitioners would have liked, and the moratorium further delays the processing
of their applications, the Court cannot construe the actions of the Town Board as being dilatory
or taken in bad faith. Thus, there is no basis to invoke a "special facts" exception in this matter.
CONCLUSION
Based on all the foregoing; the Court concludes that, although there have been multiple
moratoria enacted relating to solar development in the Town of Vestal, there is no basis to
invalidate the fourth moratorium embodied in Local Law No. l of 2024, under the circumstances
in this case. Therefore, the demand for declaratory judgment that Local Law No. l of 2024 is
invalid, unlawful, null and void is denied. Accordingly, the Petitioners applications are subject
to the moratorium and the Petitioners applications cannot be processed at this time. Further,
Petitioners have not established any "special facts" to support a writ of mandamus to compel the
Town to process their Special Use Permit Applications under the 2023 Solar Energy Law.
Accordingly, based on all the foregoing and after due deliberation, it is hereby
ORDERED AND ADJUDGED, that the Petition is DENIED AND DISMISSED.
THIS CONSTITUTES THE DECISION, ORDER AND JUDGMENT OF THIS COURT.
Dated: May J , 2025
Binghamton, New York
HO
Supreme Court Justice
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