On May 6, 2015, the Suffolk County Planning Commission (“Planning Commission”) approved a Model Commercial Solar Code (“Model Code”), which will go into effect in each town, only if adopted by each.. The Model Code is the product of a Utility Solar Model Code Working Group of the Planning Commission (“Working Group”). Participants included representatives from Suffolk County, the Towns of Brookhaven and Riverhead, PSEG-LI, solar installers, and community and environmental groups, among others. The complete text is available on the website of the Suffolk County Planning Commission: http://www.suffolkcountyny.gov/Departments/Planning/Boards/SuffolkCountyPlanningCommission.aspx.
The genesis of the Working Group was the approval last fall of a 9.8 MW commercial solar facility to be built on a 60 acre parcel along Route 25A in Shoreham, now occupied by the Delalio Sod Farm. The sod farm is adjacent to residentially zoned property. The 50,000 solar panels that will be installed cover virtually all of the 60 acres, eliminating completely the former open space, scenic vistas, and agricultural use. A community group represented by the author, prior to merging his practice into CMM, challenged the approval, and the case is waiting for a decision of the Court.
There are many excellent details within the Model Solar Code, but the two most important by far are the following limitations on the manner in which solar panels and related equipment are to be laid out [Model Code Special Permit Requirements B. and D.1.]:
- Maximum Lot Coverage
- The total coverage of a lot with freestanding solar panels cannot exceed sixty (60%) percent lot coverage. Lot coverage shall be defined as the area measured from the outer edge(s) of the arrays, inverters, batteries, storage cells and all other mechanical equipment used to create solar energy, exclusive of fencing and roadways.
- Buffer and Setback Restrictions:
- A minimum thirty-five (35%) percent shall be preserved as natural and undisturbed open space. Site plans shall be developed that provide for the preservation of natural vegetation in large unbroken blocks that also allow contiguous open spaces to be established when adjacent parcels are developed.
If adopted, these provisions will require developers of utility scale solar facilities to preserve open space, and preclude them from arguing, as was done successfully in the Shoreham case, that the area between rows of solar panels should not be included in the calculation of lot coverage.
The Towns of Brookhaven, Riverhead, and Smithtown, where many recent industrial scale solar facilities have been proposed, are urged to quickly consider and adopt the Model Solar Code, with perhaps some changes. For example, the Model Code properly seems to allow approval of a special permit by the Planning Board of utility scale solar facilities only within Industrially Zoned areas, subject to the special permit requirements of the Model Code. However, rather than preclude altogether development of such facilities within environmentally sensitive areas, the Model Code would allow industrial scale solar facilities in such areas if approved by the Town Board subject to special permit conditions.
Developers opposed adoption of the Model Code because it will require them to either reduce the size of their projects, or acquire additional land. For so many reasons, well beyond the scope of this article, the developers are wrong. The question that should be asked is not whether it is proper to restrict the size of industrial scale solar projects in Suffolk County, but whether it makes any sense to allow them at all. The reader is urged to review previous blogs by the author arguing that commercial solar projects should not be permitted in Suffolk County (links to which are found on the CMM website at Eisenbud’s Environmental Law Blog, and the newest blog on the subject by the author: “Tiger Salamanders and Industrial Scale Solar Facilities in Suffolk County.”