Lawsuit: town wrongfully approved solar farm
A recent photo of the Mid Island Solar farm site. A judge is expected to rule on the ABCO Article 78 against Brookhaven’s Planning Board on Wednesday.  The perimeter entrance is surrounded by a 10 -foot fence. This photo was taken between gate openings.


Lawsuit: town wrongfully approved solar farm


It isn’t that the Affiliated Brookhaven Civic Organization is against solar farms, said its president MaryAnn Johnston.

The issue was taking down swaths of oxygen-producing trees to create them. Especially the 100.33-acre Mid Island Solar Farm in Mastic owned by Howard and Gerald Rosengarten, in which 60 acres of undeveloped woodland were cut down, an area between state and county preserved areas.

Brookhaven Town law required forty acres of trees preserved; and last fall, Howard Rosengarten of Howard Rosengarten Associates with his brother Gerald Rosengarten, commented it had a 200-foot buffer. The plan was to implement 67,000 solar panels to generate 19.6 MW of electricity.

The Article 78 lawsuit by ABCO before NYS Supreme Court Judge Patrick Leis III on Wednesday is challenging Brookhaven Town’s Planning Board decision to exempt the Rosengarten’s property.

The trees are already down, pointed out Johnston. “My instinct is there has to be come kind of settlement,” Johnston said. “It might be to mitigate all the findings to protect the open space and the headwaters around the property.”

“This is under litigation and the town will not comment on it,” said Town spokesperson, Jack Krieger.

“The town should never have granted a solar farm in that location,” said Ray Keenan who is representing ABCO. “They actually changed the solar code after the application was submitted; they changed the code so that it was the planning board’s decision and not the town board’s. And more importantly with the second change, in the fall of 2016, they said you can’t clear land for a solar farm, but put in an exemption. ABCO hasn’t alleged wrong doing on the part of Rosengarten or MISF.”

According to Brookhaven Town’s website, A Green Homes and Go Solar initiative for villages and single-family owner-occupied residential property in Brookhaven Town was adopted in 2010.

In a March 2017 Findings Statement for Middle Island Solar Farm, the proposed project was initially submitted in 2013 to the Town Board for a Special Permit for an electric generating facility under the Light Industrial-1 code.

Keenan said the project in 2013 required a change in zone.

“You couldn’t put a solar project in L1 Industrial at that time, it could only be in residential areas,” he said. “After adopting the Suffolk County model solar code, (August, 2015) it allowed them to put solar in L1 with a special permit.”

 In August of 2015, the Town Board transferred MISF’s Special Permit file and fees to the planning board.

Brookhaven Supervisor Ed Romaine announced a proposed change to the town’s Renewable Energy Systems code in September 2016 at Clare Rose headquarters in Yaphank that prohibited tree clearing for solar sites offering incentives for installations atop buildings as Clare Rose did and parking lot structures. It also nailed down appropriate siting. It would be permitted on specific lands; that included L1 Industrial and was adopted late October, effective November 7.

The Rosengarten property has had an over 30-year history as a zoned L-1 Industrial parcel, with county efforts going back to former Legis. Kate Browning along with town efforts partnering to purchase it along the way that were rejected. Brookhaven Supervisor Ed Romaine offered to develop 22 acres of the landfill for solar in 2017 with 18 more acres in 2018 for a land swap, again rejected by the Rosengartens, and wrote to Gov. Andrew Cuomo when there was a NYS legislative push by Assemb. Steve Englebright and Senator Ken LaValle and environmental groups to preserve MISF. A tussle ensued with MISF withdrawing their application in early December 2017 because they did not have the necessary 19.6 MW of power agreement from LIPA/PSEG. Two days later, MISF refiled with revised phasing plan and necessary PSE&G hearing. The plan was approved January, 2018.