Tuesday, October 26, 2021

Kingsbury: Fight over Peckham AES solar plan on Geer Road

By Zander Frost, Chronicle Staff Writer

Pursuit of a 20 — now 15 — megawatt solar power generating project on 198 acres of former farmland owned by Peckham Industries off Geer Road in the Town of Kingsbury saw the town approve it, then annul its approval as neighbors said they’d been kept in the dark; then be sued by the applicant AES Solar over the reversal.

On Wednesday afternoon, Aug. 25, AES and Peckham put up a tent and invited neighbors to a powwow, ostensibly to seek a solution. Not everyone was mollified. The Chronicle was there.

“They were approved under false pretenses,” neighbor Renny Devine declared.

“That’s why they make judges, I guess,” responded Peckham Industries Vice President Peter Simoneau.

Mr. Devine said, “That’s why they make lawyers and that’s why we’re going to welcome a lawsuit. Let’s bring it on, because I’ll be damned if you’re going to have solar.”

“We got it,” said Mr. Simoneau.

“Good. I’m all done then. You guys have a great day,” Mr. Devine said, departing.

Peckham Industries, which operates a quarry nearby that produces crushed stone, made its solar deal with a company called Matrix. AES is Matrix’s successor.

AES has sued the Planning Board “and Todd Humiston, individually and in his official capacity as code enforcement officer of the Town of Kingsbury” after the town sought to annul its project go-ahead.

The lawsuit contends, “The code enforcement officer’s unilateral action effectively nullifies AES’s $14-million investment in the Project Companies made in direct reliance on the now revoked land use approvals, as well as eviscerating a nearly year-long review process.”

Mr. Devine says he and other neighbors only learned of the solar plan after they noticed paint marks on the road near his house. By then it was too late to object.

Town Attorney Jeffrey Meyers tells The Chronicle, “Over a year ago, the project was approved. A couple of months after it was approved, it came to light from the town’s perspective, it appeared that residents adjoining and surrounding the proposed site, finally found out about the project….

“The town, essentially in response, asked the developer…the harder question of ‘we were under the impression and you represented to us that you spoke to the neighbors and notified the neighbors and that everybody was aware of this project…’

“So, time ticks by — we’re in, say January of this year now, and the enforcement officer, Todd Humiston, made a determination that based on what was represented to the planning board by the applicant, there were material misrepresentations.

“As a result, the Kingsbury zoning law has a mechanism…where if that determination has been made the approval is annulled.”

Mr. Meyers said, “One of the points of contention is the current planning and zoning law for the town of Kingsbury just requires notice of a public hearing in a newspaper, which is the Post-Star and it’s kind of plopped in the Legal Notices.

“Recognizing that that is insufficient, the Planning Board, from time to time, will ask for a big project like this, there was a concern, are the neighbors aware, what do other people know?”

“And so that question was asked to the applicant a couple different times. And when the project was ultimately approved, COVID was in full force and effect. Meetings were strictly virtual, the Planning Board was trying to essentially keep everybody happy to the extent they could.”

“The applicant was most of the way through with his project, the public hadn’t been turning out at any of public hearings. And the town with assistance of the applicant was able to put application materials on their website, really try and get information out there to the public as best they could.”

“But it was also kind of premised on them always answering that question in the affirmative saying, yes, the public was aware.

Mr. Devine told The Chronicle, “At the time, there was COVID. So we didn’t have meetings, we couldn’t get into the town board — totally closed. You had to get online to be able to see what was happening within the town. Who in the hell does that? I mean I got a life.”

He said, “We have, I believe, it was over 128 signatures….that do not want this solar. You can count how many Geer Road addresses there are, and then count the houses on Geer Road. And you’ll see that it equals everybody…”

Now, he says, “I can’t talk to any of my town representation about this project because of the lawsuit. But these guys [AES] can go around and talk about their project all day long.”

Mr. Devine also expresses environmental concern, particularly about the proximity of the solar panels to Peckham’s active nearby quarry.

He said, “Peckham closes down Underwood Road when they blast, because sediment can possibly erupt many hundreds of yards from the quarry. Now they want to put solar panels right across from where they’re blasting.

“I don’t know if you looked at what the ingredients, or the chemicals and materials, in the solar panels are made of, cadmium, arsenic…”

He expresses concern that the blasting could cause solar panels to crack, and “when they crack and it rains, then those toxic materials are going to go into the soil, which we all have wells out here.”

“Our natural environment will be destroyed by this with the solar panels, the deer…I don’t mean to sound like Al Gore here…I mean you can go over the top.”

“I do believe that there’s a there’s a place for solar, I’m not against solar. My neighbor’s got solar right down here. Good for him, he put it on his house, great. Hope he saves money.”

But, “If I’ve got a 3,000 square foot house, I shouldn’t be allowed to put 6,000 square foot panels. I mean, at that point, it becomes a commercial project.”

Peckham Industries’s Mr. Simoneau told The Chronicle, “We’ve got to figure out a way to do everything we can to fix the problem, the best we can. So that’s what we’re trying to do. We could just walk away and let the courts settle it out…

“Or, they could end up stuck with what they’ve got. And our proposition is, if we can help those guys, both sides to get what they want, that’s a win-win for everybody….

“And I think, based on all the conversations that we’ve had, later that afternoon, and since then, I think most of the opposition is centered around the one guy obviously. And I think it’ll work itself out.”

The Chronicle asked Mr. Simoneau if he feels everyone else accepts the project now.

“I think they would be okay, if we could move the facility on the east side of Geer Road to the [former] Strong Farm. I think that would be the best outcome for everybody.”

At the meeting under the tent, one neighbor said of their resistance, “By no means is it directed to Peckham…You guys are great. You guys do what you need to do and we understand the business is gonna probably be booming here soon….But it’s hard right now and I can’t imagine having all those solar panels around here.”

Mr. Simoneau said the town’s dealings with the solar project’s original company Matrix contained a “loophole.”

He said, “There was a requirement that they put up a notification. And that was the loophole that they used. The loophole was, all you have to do is put a legal notice in the paper and put a note up on the town hall bulletin board.”

“And that was poorly crafted. But Matrix, I believe, I don’t like it, but I think that they did in fact comply with it. So there’s a very good chance that AES could win.”

He said of Peckham’s continued stance for the project, “we don’t have any choice. We signed a lease with Matrix…We can’t back out of something that we signed. For someone to stand up and say that’s ridiculous.”

What is his view of the inspector Mr. Humiston being sued not just as a town employee but personally by AES?

“I think that’s very common…” said Mr. Simoneau. “…If you’re on the town board, the town pays insurance for all the town board members, because there’s a likelihood that people are going to get sued.

“And that guy happened to be caught in the crossfire…I’m doubting that there is any personal liability for the guy. But again I’m not a lawyer. I don’t know that…You’d have to ask a lawyer.”

The Chronicle requested an interview with AES project manager Jessica Zupancic — who led the meeting under the tent — but she said she would only respond to questions submitted in writing.

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