Trees topple; solar project in holding pattern
The trees came down early morning on Friday, Oct. 20. They were felled on property surrounded by preserved woods on Moriches-Middle Island Road across from Brookhaven Town’s highway yard.
So while there weren’t nearby homeowners to witness it, passersby on their way to work did.
“Someone called me on their cell phone at 5 [minutes] to 7 a.m.,” said MaryAnn Johnston, president of the Affiliated Brookhaven Civic Organization. “They were permitted to do soil borings to take down no more than one acre of land. They allowed a 10-foot-wide path and sashayed from one side of the property to the end, about one acre.”
The property owner is Howard Rosengarten and his proposal, Middle Island Solar Farm, would occupy his L-1 district parcel, 100 acres, a permissible use, with 19.6 MW of renewable solar energy. The site-plan application with special conditions was approved by the town planning board on April 17, 2017; final approval for the project, however, is still winding its way through the process.
Middle Island Solar Farm was on the planning board schedule for Monday, Nov. 6, listed as No. 17 on the schedule for a phasing plan, but a decision was postponed. “We had a public hearing on Sept. 18, the second hearing was on Oct. 2, the final was on Oct. 16 for a proposed phasing plan,” said Rosengarten’s attorney, Eric Russo of VanBrunt, Juzwiak & Russo P.C. “They closed the hearing on Oct. 16, subject to confirmation from PSEG for the PPAs for the project.”
According to a Nov. 1 memo from Brookhaven Town’s division of environmental protection, the phased plan as proposed should not be approved, “as the applicant does not have the [power purchase agreements] in place for the proposed 19.6 MW. The applicant should revise their phasing plan to match the PPAs they have with PSEG.” The memo quotes an Oct. 20 email from Karl Jesaitis, PE, of PSGELI: “The PPAs for the MISF site total 14.65 MW.”
According to Adam Rosen, Middle Island Solar Farm project manager, “we have 14.6 megawatts but we have permission from PSEG for another five.”
“Promises don’t count in land-use decision-making,” said Long Island Pine Barrens executive director Richard Amper.
A permit was issued by Brookhaven Town environmental analyst Luke Ormand to the owner for a test hole clearing permit at the site — resulting in the tree takedown — for a drainage and grading plan, on Oct. 6.
“He has to do test holes for a stormwater pollution prevention plan,” explained Brookhaven Town attorney Annette Eaderesto. “It has to be done as part of the conditions; it was done exactly to specifications. The winding path was selected so that very few trees were taken down. I walked the path. The big trees were marked and they had to swerve to avoid them.” The town amended its solar code last year, encouraging rooftop and already constructed facilities for solar projects in areas commercial- and industrial-zoned; large-scale solar collection systems were permitted in several zones, including L-1 Industrial.
Eaderesto said Rosengarten needed a machine to accomplish the test hole process. “There are five test holes to make sure the drainage on a drawn-out plan will work for future drainage structures,” she explained. “If you show drainage and there’s clay present, you can’t build there.”
The tree removal was required for the drainage and grading condition, said Russo.
There are two key letters in this wrangling to build a solar farm adjacent to a preserved forest, one from Brookhaven Supervisor Ed Romaine to LIPA CEO Thomas Falcone on Aug. 15, stating that while the town board granted conditional site-plan approval for a 19.6 megawatt solar farm, conditional site plan approval included eight conditions that must be met to receive a final site plan signoff; the applicant’s documents indicated he did not have the required power purchase agreements in place at that time, only 9.95 megawatts, although that has changed.
The main condition is providing a power purchase agreement with LIPA/PSEG for all 19.6 megawatts. On Aug. 18, Falcone wrote Romaine, stating the 2015 Renewable RFP results were reported in a July 26, 2017 meeting and the proposal to construct a 19.6-megawatt project was not selected.
Eaderesto was asked if Rosengarten was told he couldn’t go forward with the project. “That is correct,” she said. “He hasn’t met all the conditions. It can’t go forward.”
“We’re in the process of complying with the approval in addition to the phasing,” insisted Russo.
ABCO and Long Island Pine Barrens Society executive director Richard Amper are among the litigants who filed an Article 78 against Brookhaven Town’s planning board, as well as Tullio Bertoli, Brookhaven Town’s commissioner of the department of planning, environment and land management, and Howard Rosengarten, this year on May 17 claiming the town’s approval of the site plan and special permit was arbitrary, capricious, in excess of its authority and in violation of Brookhaven Town code.
But there is another, larger spotlight on this property. A bill championed by state Sen. Ken LaValle and Assemb. Steve Englebright, which passed in both houses (S.6157B/A.7722B), would expand the core preservation area of the central pine barrens with the Middle Island Solar Farm parcel because of its proximity to the Forge River watershed and the Shoreham/Wading River property of more than 820 acres with extensive woodlands and nearly one mile of Long Island Sound.
Romaine urged Gov. Andrew Cuomo to approve the bill in two letters, the last one on Aug. 29, specifically citing the Middle Island Solar Farm parcel in the preservation effort.
The governor has not yet signed the bill. Calls to the governor’s regional representative Brian Sapp were not returned at press time.
Amper, who met with the town’s law department on Nov. 2, reiterated his message: Put solar farms in car parks, buildings and developed areas, not in woods.
“The inappropriateness is clearing for solar,” he said. “It’s a false choice you have to make, forest or solar. This man [Rosengarten] is representing himself to be an environmentalist; environmentalists don’t cut down trees.”
Amper pointed out that former Gov. Mario Cuomo signed the original Pine Barrens Protection Act; he hoped his son would follow his lead.
“If the town said this project can’t be built because they won’t accept a phased-in plan and he doesn’t have the power purchase agreement required, the governor would sign the bill,” he speculated. “I also think the owner knows he doesn’t have the power purchase agreement, but he’s thinking he’ll get it later.”
Eaderesto was asked if now that some of the property was cleared, would it open the land up to development vulnerability.
“It’s zoned L1, so if someone has an L1 use, the answer is yes, unless it’s protected by the state,” she said.
There were municipal attempts to purchase the Middle Island Solar Farm property. Legis. Kate Browning reached out to Rosengarten regarding that possibility with the county. Romaine told the Advance in an interview last year that the town would partner on a land purchase if the county would take the lead.
Russo pointed out in an April 13, 2016 letter that his clients have owned and paid taxes on the property for over 30 years; there was ample opportunity before the application filing in August 2012 and since then for the county, town or state to approach the property owner with an expression of interest or a land swap. The lack of any offers from any municipal agencies during that time was an indication to his clients there was no public money available or no interest, he said. A little more than 39 acres were being left undeveloped in its natural state and there were buffers. “You can’t see it from Moriches-Middle Island Road,” he had stated.
Rosengarten has since written letters to the Advance and to Newsday defending his project and some environmentalists have taken up the solar cause even if it means cutting down trees, including Reliable Energy Long Island executive director Gordian Raacke.
There is also another sticking point. No solar facility should be located within 100 feet landward of a tidal or freshwater wetland unless a special permit is granted by the town board, according to Suffolk County planning’s solar energy facility model code, and there’s a freshwater stream around the corner from the property. Russo said the property was nowhere near fresh water; it was 1,500 feet away, he said. Johnston said ABCO has documented there are emerging wetlands on the property.
When asked about ABCO’s next step, ABCO attorney Ray Keenan commented, “we did put the lawsuit in knowing the legislation was in process and approved by the Assembly and Senate, subject to the governor’s approval. So we’re waiting for that process to end and in the meantime, we’ll keep the lawsuit going.”
This story has been updated.
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