A lawsuit over a contested solar project in the town of Busti is heating up as lawyers for Solar Liberty Energy Systems and the town trade barbs in legal documents.

Attorneys for Solar Liberty Energy Systems Inc. and the town of Busti are scheduled for a conference in state Supreme Court before Justice Grace Hanlon on Wednesday.

Solar Liberty filed an Article 78 lawsuit in April asking the state Supreme Court in Mayville to annul the town’s March letter forcing Solar Liberty to restart the development process for solar panels on 60 to 90 acres of undeveloped land at 1255 S. Main St., Busti, on land owned by PPP Future Development Inc. The project consists of a ground-mounted solar panel installation with three solar fields totaling 28,080 solar panels capable of producing 9 megawatts of power. Solar arrays would be 14 feet high, at maximum tilt. Activities will also include the installation of new electrical equipment and accessories including concrete pads for equipment and a new gravel access drive.

Town Planning Board members said the project wasn’t a good fit for the site because it was too large for the town, was too close to the road and residents across the street, could impact Kiantone residents and possibly impact gas wells in the area. According to Planning Board minutes from the Sept. 27, 2021, meeting referred to in the lawsuit, state Department of Environmental Conservation officials said there may be potentially significant environmental impacts from the proposed projects, which led town Planning Board members to issue a positive declaration to a State Environmental Quality Review, which means the Planning Board would be involved with the scoping and review of a draft environmental impact statement.

Solar Liberty objected to the positive declaration in a December 2021 letter and asked the Busti Town Board to disregard the Planning Board’s recommendation. Town Board members sided with the Planning Board on March 7, 2022. Since that meeting, nothing has happened — and that is the crux of the lawsuit.

Solar Liberty officials say the town had to take the step of providing the company with a copy of the SEQR positive declaration and publish the declaration in the state DEC Environmental Notice Bulletin.

Busti officials said the lack of action from Solar Liberty led the Town Board to consider the application withdrawn. Joel Seachrist, the attorney representing Busti, said Adam Rizzo of Solar Liberty was at the March 7, 2022, Busti Town Board meeting when the positive declaration was issued and told Solar Liberty had to start the scoping process.

And neither side disputes that the town and Solar Liberty have been in contact in the 16 months since the March 2022 Town Board meeting because Solar Liberty is pursuing another project in Busti. Seachrist wrote in a June 9 court filing that the South Main Street project hasn’t been brought up until the lawsuit was filed.

“By its own admission, Solar Liberty has not taken any steps to move the application forward since March 2022. The actions listed in Paragraph 33 of the Petition were all done prior to March 2022.

The only action alleged to have taken place since then are “communicating on a weekly basis” with National Grid, which is fairly thin gruel, about which the town could not be aware,” Seachrist wrote in his affirmation to the court. “Solar Liberty appears to have viewed the Positive Declaration as a temporary hiatus, allowing it to divert attention and resources to other endeavors, while keeping this project on hold until it was ready to resume its progress.

The town viewed it rightly as a starting pistol to which the sole runner failed to respond. Accordingly, after a year of silence, it was reasonable for the town to treat the application as withdrawn.”

Michael Fogel, one of the attorneys representing Solar Liberty, replied to Seachrist’s affirmation with a June 16 affirmation saying the town offers no legal support or documentation that would lead the developer to have known its application would be considered withdrawn if no action was taken within a certain time frame. Fogel termed the decision an after-the-fact rationalization that the court should set aside while allowing the project to proceed despite a moratorium on solar projects in Busti that ends on Feb. 1, 2024.

“Notwithstanding the town’s contentions, their purported decision has a real and concrete injury on Petitioners.

As set forth in the verified petition, while the application has been pending with the town, Solar Liberty has spent years and millions of dollars advancing the interconnection construction with National Grid necessary to connect the solar energy system to the utility grid and most recently is working with National Grid on the electrical drawings and designing the installation of the meter pole locations for the interconnection,” Fogel wrote. “Solar Liberty’s investment of years of work and millions of dollars into this project is hardly ‘thin gruel’ as alleged by the town.

The town clearly does not understand the serious real-world implications of its irrational, arbitrary and capricious decision making. If it did perhaps it would realize it cannot act in such a manner.”

Fogel said starting the project from scratch a second time will cause Solar Liberty to incur additional costs and expenses, particularly if the town’s new zoning laws impose additional application requirements, criteria and conditions. “While the town attempts to hide behind a general cloak of “rationality” what the town’s response to the lawsuit proves is that the town’s actions and behavior were anything but rational,” Fogel wrote. “They have provided no legal support at all for their actions. Instead, this town would lead the court to believe that it can dream up an entirely arbitrary time frame without ever communicating notice of that time frame or the consequences of failing to meet that time frame to petitioners and then seek to impose an adverse determination and real injury on petitioners for failure to comply with this time frame.

It is outrageous to think that the elected representatives of the town believe this type of ‘decision-making’ is ‘rational.’ In fact, this is the very definition of arbitrary and capricious behavior. It is respectfully submitted that this court should not allow such behavior to stand.”

Fogel says the town hasn’t point to an administrative remedy in the town’s codes to challenge the Town Board’s decision other than resubmitting its applications. Seachrist also argues Solar Liberty hasn’t exhausted administrative remedies available to the company, including submission of another application when the town’s moratorium expires.

“The town has enacted a moratorium on solar projects like this one to as the town revises its Zoning Code, but that moratorium ends on February 1, 2024,” Seachrist wrote. “Solar Liberty apparently has not been injured by waiting 16 months to submit the draft scoping documents since the adoption of the positive declaration. Surely it’s not unreasonable to wait another seven months to re-submit.”