NJ Court Allows Industrial Solar Developer To Virtually Bribe Local Government For Land Use Approvals
Solar Development To Proceed On 600 Acres Of Farmland In Harmony Township
Local Officials Privately Negotiated $350,000 Annual Deal, Then Voted To Approve
It is an invitation to corruption to continue the current practice of allowing municipalities to negotiate these huge economic, energy, and land use issues in the absence of State policies and standards and a transparent and participatory public process.
Huge amounts of corporate developer money are causing skyrocketing land values in what’s left of rural NJ. As a result, many farmers are taking the money and selling out.
At the same time, State policy is promoting development and deregulating industrial scale solar installations, while state energy (BPU) and environmental (DEP) regulators abdicate their responsibility via deference to local “home rule” under the pro-development NJ Municipal Land Use Law (MLUL).
That is a formula for rapid destruction of what’s left of NJ’s forests and farms and rural character. Period.
And a recent case in point adds corruption to the mix.
In a remarkably corrupt situation in Harmony Township, NJ, a Superior Court Judge recently rejected a lawsuit filed by local residents and the NJ Highlands Coalition.
The lawsuit challenged the Harmony Township Land Use Board’s approval of a 70 megawatt industrial solar facility on 600 acres of farmland.
The facts of the case are remarkably corrupt, even by notoriously corrupt NJ standards. Here’s the Court’s summary:
Plaintiffs allege that approximately a year and a half prior to the hearing, Harmony Township, led by Mayor Brian Tipton negotiated and executed a lucrative Lease Option Agreement with HPS providing for annual payments of $50,000.00 to the municipality. Plaintiffs state that in exchange for these sums, the Lease Option Agreement grants HPS an exclusive option to lease the 180+ acre parcel from Harmony Township in accordance with the terms of a 30 year Solar Land Lease Agreement which, if exercised, provides for annual payments of $350,000.00 to Harmony Township.
After negotiating this “lucrative” deal – which was negotiated in the absence of any State policies, regulations, standards, public process or State oversight regarding negotiation of what are known as “host community benefits” – the Mayor and Committee member then voted to approve the land use application for the solar facility, an act that obviously reflects a blatant conflict of interest.
The Court found that NJ MLUL case law recognizes but “tolerates” these kind of conflicts at the municipal level:
A member of a board of adjustment, like any taxpayer, is understandably inclined to favor increasing public revenues to contain taxes. However, unlike other taxpayers, he has a specific duty not to sacrifice the proper use of land on the altar of reduced taxes. This conflict is tolerated because it inheres whenever a variance is sought that would increase public revenues. But when the applicant is the member’s employer, an additional conflict occurs which is avoidable and therefore not acceptable. As our Supreme Court has said, “…[I]t is most doubtful that participation by a councilman in a municipal action of particular benefit to his employer can be proper in any case.” Pyatt v. Mayor and Council of Dunellen, 9 N.J. 548, 557 (1952).
The Board of Education particularly benefits from the grant of these variances. Money realized from the sale of the schools and money saved by not having to maintain them will ease the Board’s revenue requirements. Also, individual Board members standing for re-election can point to these sales as an accomplishment.
The Court found, in addition to “tolerating” the municipal conflicts, that the Mayor and Councilman did NOT have personal conflicts.
Wow.
NJ has laws that provide standards and procedures for negotiating “host community benefits” for some detrimental land uses, like solid waste facilities. But current NJ law defines industrial solar arrays as:
under the MLUL, solar production systems were considered an inherently beneficial use, similar to a school, hospital or childcare center.
The Court then went on to expand the definition of “solar system” to include electrical substations. There was no capacity restriction mentioned, thus the substation could not only increase the size of the solar facility, but excess capacity could attract additional solar from nearby properties:
Distance to Substation
As with power lines, proximity of the land to a substation is a key consideration for potential developers. The closer the better—with the ideal range to be approximately 2 miles. The longer the distance, the greater the risk associated with the project. Obviously, the more risk associated with a project, the less likely it is that a developer will want to continue with the project. (YSG Solar)
I wrote Senator Smith the following letter, seeking legislation to prevent future similar abuses. Given Smith’s strong support of industrial scale solar, his recent flawed legislation which actually promotes solar on farmland, and his dead-set opposition to more land use controls, there is zero chance of success:
Dear Senator Smith:
I bring the attached Court decision to your attention, as it involves the “inherently beneficial use” municipal land use law policy I believe you supported for solar installations. It also involves solar siting on farms and conflict of interest issues, see:
Dalrymple v. Harmony Township Land Use Board, et al Docket No. WRN -L-148- 21
Reading that decision was like a road map to all that is wrong with the NJ Municipal Land Use Law (there were esoteric loopholes identified as well, such as the LLC loophole).
In my view, the conflict of interest issue was mis-focused on individual conflicts of interest.
The real conflicts are systemic, and twofold:
1) allowing local governments to privately negotiate and executive contracts that provide huge economic benefits (with no standards or public process), and to do so in advance of land use approvals; and
2) allowing local governments to approve land use decisions they benefit economically from (i.e. not just the standard property tax revenue benefits the Court based its decision upon, which revenues flow from uniform property tax rates, but revenues from discrete individual special lease and revenue agreements).
The Court’s conclusion that electrical substations are part of a “solar system” is really bad. This dramatically increases the scale and revenues from the “inherently beneficial use” solar systems the legislature considered.
I urge you to revisit the land use issues in light of this decision and consider legislation to address the issues of “host community benefits”. It is an invitation to corruption to continue the current practice of allowing municipalities to negotiate these huge economic, energy, and land use issues in the absence of State policies and standards and a transparent and participatory public process.
I urge you to conduct legislative oversight and hold hearings on these MLUL and energy policy issues.
Respectfully,
Bill Wolfe
We’ll keep you posted, if I receive a reply or if the Court’s decision is appealed.