Southtowns Record

Board of Zoning Appeals Meeting, Jun 2, 2026 — Minutes

Government
Town of Hamburg
Board
Zoning Board of Appeals
Meeting
Jun 2, 2026
Kind
Minutes
Topics
Zoning and land use, Energy and data center siting, Public safety, Budget and taxes, Water, sewer and drainage

Original document

Same meeting

Text · page 3 of 11

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.