Court Holds that ZBA May Not Apply a Hybrid Area-Variance Test to a Solar Project; Public Utility Variance Standard Controls

Solar projects are governed by the Public Utility Variance (“PUV”) standard that the New York Court of Appeals announced in Matter of Consolidated Edison Co. of N.Y. v. Hoffman, 43 N.Y.2d 598 (1978).  Under this test, where a proposed facility demonstrates that it is a public necessity required to render safe and adequate service, that there are compelling reasons, economic or otherwise, which make it more feasible to construct the project where proposed than an alternative, and where the intrusion or burden on the community is minimal, the required showing is correspondingly reduced.  See generally Hoffman.  The Appellate Division recently applied the PUV standard to solar projects in Matter of Freepoint Solar LLC v. Town of Athens Bd. of Zoning Appeals, 234 A.D.3d 127 (3d Dep’t 2024), lv denied, 43 N.Y.3d 907 (2025). 

When a zoning board of appeals denied a solar developer’s application for area variances because it conflated the PUV standard and the traditional Town Law § 267-b(3)(b) test, the Supreme Court held this determination was affected by an error of law and remanded the matter back to consider under the PUV standard.  See NY Boston II, LLC v. Zoning Board of Appeals of the Town of Boston, Index No. 811463/2025 (Sup. Ct. Erie Cnty. Oct. 15, 2025) (Hon. Catherine Nugent Panepinto, J.S.C.).  Decision available here.[1]

The genesis of the NY Boston II lawsuit was the denial of several area variances by the Town of Boston Zoning Board of Appeals (the “ZBA”).  Petitioner sought relief from the Town’s 500-foot setback and 50-acre maximum lot-area limits under Local Law No. 4 of 2019 (the “Solar Law”) to develop a solar project.

The Town Board, acting as lead agency under the State Environmental Quality Review Act (“SEQRA”), issued a Negative Declaration in November 2024, finding no significant environmental impacts.  Despite this determination, the ZBA denied the variances based on alleged neighborhood-character and aesthetic impacts, while treating the Town Law § 267-b(3)(b) factors as “informative.”

Petitioner commenced an Article 78 special proceeding challenging the denial as unlawful, arbitrary, and capricious.  The Court held that the ZBA “gave lip service” to the PUV standard while effectively applying the traditional variance criteria, thereby imposing a heightened standard rather than the reduced showing required for public utilities under Hoffman and Freepoint.

The Court further found that the ZBA’s assertions of community impacts were vague and inconsistent with the Town Board’s SEQRA Negative Declaration, noting substantial overlap between the environmental-impact factors already reviewed under SEQRA and those the ZBA cited to justify denial.  Because the record did not establish that the ZBA properly applied the PUV test, the Court remanded the matter for further proceedings consistent with the Court’s decision.    

As directed by the Court, the ZBA on remand must reconsider the application solely under the PUV standard, without reference to the Town Law § 267-b(3)(b) traditional area variance test.  If the ZBA identifies any community impacts that it believes are not minimal, it must specifically identify how those impacts were not already addressed in the SEQRA Negative Declaration.  While the Court did not grant the variances outright, it significantly limited the scope of the ZBA’s review, ensuring proper application of the PUV standard.

Hodgson Russ Insights.  This decision reinforces that local zoning boards may not side-step the public utility variance standard by devising a hybrid test.  Solar energy projects are public utilities. Under Hoffman and Freepoint, such projects are entitled to a reduced variance standard.  Municipalities and developers alike should expect that future solar-variance reviews will be constrained by this decision’s clear reaffirmation of the Public Utility Variance framework.

If you have any questions about the PUV standard applicable to renewable energy projects or land use and permitting generally for renewable projects, please contact Charles Malcomb (716.848.1261), Henry Zomerfeld (716.848.1370), or a member of our Renewable Energy Practice. 

[1] Hodgson Russ attorneys Charles Malcomb and Henry Zomerfeld represented the Petitioner in the case.

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