OBSERVER Photo by Braden Carmen Town of Dunkirk Attorney Jeff Passafaro described the legal options available to the Town Board after being overruled by the county’s Supreme Court regarding a solar project.

Back in February, the Dunkirk Town Board made what Supervisor Priscilla Penfold described as a hard decision in rejecting a proposed solar energy project on Williams Street.

The court system says it made the wrong decision.

The applicants of the project challenged the decision through an Article 78 proceeding with the State Supreme Court, and the decision came back in their favor. The State Supreme Court ruled that the applicants are entitled to a special use permit for the project to proceed. The Town Board’s decision to deny the permit was reversed and remanded.

The project is a 3.75 megawatt solar energy system of approximately 14,580 ground mounted solar panels across three parcels of land, located at 3751 Williams Street East in the Town of Dunkirk. The project is overseen by Solar Liberty, an energy system development company in the Buffalo area. The land is owned by John Dach, who has previously harvested grapes at the property before it became too difficult to do so. The land is located in a Residential Zoning District.

Plans for the project have been in motion since 2019 when Solar Liberty first started negotiations with Dach for the land to host the project. The Zoning Board granted a variance request for the project to proceed, despite the Residential Zoning restriction the Town had set, but the Town Board took a different stance.

In February, the Town Board voted 3-1 to deny a special use permit for the project, with Supervisor Penfold and Board members Jean Crane and Phil Leone voting against the project. Town Board member Shari Miller was the lone vote in favor of the project, while Bob Price was absent.

Penfold referenced the Town’s existing zoning laws in the initial rejection of the permit, stating the Town Board felt the project is “contrary to that legislative policy enactment.” Penfold also said the plan “further diminishes the agricultural nature of the Town of Dunkirk”, and that it is “not consistent” with the residential development of the neighborhood.

Town Attorney Jeff Passafaro explained the options to the Town Board following the State Supreme Court’s ruling. The Town Board was faced with a decision: issue an appeal of the ruling, or accept the Supreme Court’s decision.

Leone, a former attorney, said that after reading the Supreme Court’s decision, he did not feel optimistic about the Town’s chances with an appeal. “The expense would probably be considerable. It would take months, probably, to be heard,” Leone said. “… I think that we should just approve the special use permit and be done with it.”

Price and Crane agreed with Leone’s stance, while Miller did not comment. “I think Mr. Dach has waited long enough,” Crane said.

The Board unanimously decided that the battle that would come from an appeal was not worth the time and resources. Code Enforcement Officer Ryan Mourer is now directed to issue a special use permit for the project to proceed as if the Town Board had approved the project as it was proposed.

Dach and representatives from Solar Liberty left the Town Board meeting immediately after the resolution passed. The group was observed smiling and celebrating as they stood outside of the Town Hall following their exit.