State Files Appeal To Courts Solar Decision

SCHOHARIE COUNTY — New York State as expected has appealed a state Supreme Court decision from early March that declared the law governing the value of solar and wind energy facilities for tax purposes unconstitutional.

The appeal to the Appellate Division of the Supreme Court was filed just before the 30-day deadline by state Attorney General Letitia James and Assistant Attorney General Lauren Rosenberg, and is from "each and every part" of the March court ruling.

Schoharie County Supervisor Donald Airey of Blenheim, the lead petitioner-plaintiff in the lawsuit challenging the method by which solar and wind energy facilities are valued for tax purposes, had expected the appeal. So did his fellow Schoharie County Supervisors who were also petitioners-plaintiffs in the case. The defendants-respondents are the state, Governor Kathy Hochul and the state Legislature.

The supervisors and many others across the county have long contended that the tax assessment model for solar and wind facilities results in far too little taxes coming to the towns, county and school districts from such facilities.

Reached by telephone on Tuesday, Airey said that right now _ without knowing what the result of the appeal will be _ the court's March decision means that solar and wind facilities will be assessed at full value. If it stands, that will mean many more millions of dollars in tax revenue coming to towns, counties and school districts across the state, Airey said.

As an example, he said assessment at full value of the Town of Sharon's 50 MW East Point solar facility would mean $1.2 million in annual tax revenue split up among the town, Schoharie County and the Sharon Springs Central School District. Discounted assessment under the law being challenged brings $400,000 in annual tax revenue split up among the three entities, Airey noted.

"If you extrapolate those numbers across the entire state, the math speaks for itself," he said. "Even a blind man can see, that's a boatload of money we've been missing out on."

Judging from the usual speed of the judicial system, Airey estimated it would be six to eight months before the appeal is heard. He repeated his call for the parties on both sides of the issue to reach some sort of reasonable compromise.

"We don't endorse that every project should be assessed at full value," Airey said. "There is room for PILOT (Payment in Lieu of Taxes) agreements. We're not trying to be unreasonable or greedy. We're just trying to get a fair deal.

"There is good compromise ground on this. Why the state will not engage in compromise on this is elusive to me. There is enough money in this that no one should get hurt. The only ones getting hurt now are the host communities."

Dylan Harris of the Poughkeepsie law firm Whiteman Osterman & Hanna LLP, the attorney for the petitioners-plaintiffs, said he feels good about the chances of the appeal not being granted.

"We feel the lower court took a very deep dive into the facts and made a very well reasoned decision," Harris said. "We feel comfortable with our position and all the hard work, time and effort the lower court put into this."

The issues proposed to be raised by the state's appeal is whether the trial court erred in granting relief in favor of petitioners-plaintiffs and whether 575-b of the Real Property Tax Law is unconstitutional. The state's appeal does not get into specific legal detail on why state officials feel the appeal should be granted, but presumably detailed legal briefs will be filed by both sides as the process moves along.

The crux of the March court decision favorable to Schoharie County was that the state Legislature had improperly relinquished its taxing authority to an administrative agency, the Division of Taxation and Finance. Therefore, the judge went on to rule that the law governing the assessment model for wind and solar facilities, 575-b, violated the state constitution.

Other parts of that March state Supreme Court ruling did not favor Airey and the other petitioners-plaintiffs.

"Petitioners' first, third and fourth causes of action are dismissed for lack of standing and the motion is otherwise denied," the ruling stated.