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to as the Rosenberg Test. Back then and prior it applied to cell and nuclear, and now it’s been expanded. A decision that was issued in the 2024 case of Freepoint Solar LLC vs. the Town of Athens Zoning Board of appeals extended that test to solar projects. Solar projects are not done by public utility companies; they are done by a third party. With this decision and because they are not a “public utility”, this standard applies to this project too. These are relativity new projects in New York state so there is not much case law. There is a case that is currently pending where one Town has determined that in their opinion, this standard does not apply. There was also a decision issued by the city of White Plains Zoning Board of Appeals that basically held otherwise, that this standard does apply. The electric industry used to be very highly regulated. It has been changed and restructured. This project is similar to other types of alternative technology; the most recent example would be solar. They think this reasoning definitely applies here. This is also consistent with decisions made at the state level, whether you agree with them or not. In 2019, The Climate Leadership and Community Protection Act was enacted by the state legislature. It is one of the most ambitious climate laws in the nation. It requires New York to reduce energy wide greenhouse gas emissions by 40% by 2030, and no less than 85% by 2050, back to 1990 levels. In order to meet that requirement, there is a need for 6000 megawatts of energy storage by 2030. This will make a small dent but it will serve Hamburg. The two variance criteria for the Rosenberg Test were reviewed as follows: (1) is the facility necessary? Yes, based on the legislation adopted by the state in 2019. Municipalities need to have these facilities in place and they believe this is the ideal site in the Town of Hamburg for many reasons (2) Compelling reasons: these cannot be located just anywhere; they need to be in close proximity to existing utility infrastructure, which this site is. This won’t result in many adverse impacts. The project is very small on this site. It should not have any adverse impacts. They have evaluated other sites, but this is the ideal site for Hamburg. There is a need for more power in 2026 for things like electric cars, AI, etc. They also believe they have justification for the use variance under the four traditional criteria as well. (1) The applicant cannot realize a reasonable return provided that return is substantial demonstrated by competent financial evidence (2) The alleged hardship relating to the property is unique as does not apply to a substantial portion of the district or neighborhood (3) the requested use variance will not alter the essential character of the neighborhood (4) the alleged hardship has not been self-created. Hopkins stated that the current property owner is in attendance this evening. The traditional variance criteria were reviewed as follows: (1) The NC Zoning District allows uses such as two family dwellings, commercial up to 2,000 sq. ft., funeral homes, bed and breakfasts, etc. It is their position that none of those uses that are expressly permitted in the now existing zoning district are capable of realizing a financial rate of return. Why? This site does not have frontage, it is located between two rail road tracks, and because of this the allowable uses of the NC district won’t work at this location. (2) they think this truly falls into the category of unique especially because of the location between two train tracks which does not permit any viable uses. If you compare this site to the other parcels in the vicinity, there are numerous parcels currently zoned NC with frontage but have not been developed. (3) They have submitted a part one of the full environmental assessment form at the request of the Planning Board. There has been plenty of documentation submitted to support this. (4) The property owner was the owner when the Town decided to change the Zoning from Industrial to NC. They believe they meet the criteria for both the public utility and traditional use variance standards.