Project Interpretation

MEMORANDUM OF LAW IN SUPPORT OF APPEAL Appellants: Elaine Johnson, Debby Rice, Jane Bashaw, Ben Bashaw, Jerri Breschard Re: Zoning Determination – Proposed Solar Farm at Xerox Campus

PRELIMINARY STATEMENT This memorandum is submitted in support of the Appellant’s appeal from a determination of the Town of Webster that a proposed solar energy system located on the Xerox campus must be reviewed as an Industrial Use under Section 350-22 of the Zoning Code. The determination is affected by an error of law. The Town has enacted a specific and comprehensive regulatory scheme governing solar energy systems under Sections 151-1 through 155.10 (the “Solar Law”), which directly applies to the proposed project. The challenged determination improperly disregards this specific framework in favor of a generalized industrial use classification, particularly where the project directly borders and materially impacts residential neighborhoods. STATEMENT OF FACTS The Town of Webster has adopted detailed provisions regulating solar energy systems, including definitions, permitting pathways, and substantive criteria for approval. A proposal has been advanced to develop a solar energy system (solar farm) on the Xerox campus within the Town. Although the property is located in an industrial zoning district, it directly adjoins and impacts established residential neighborhoods. The Town has determined that the proposal must be treated as an Industrial Use under Section 350-22, thereafter requiring review and approval by the Town Board. This appeal challenges that determination.

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ARGUMENT POINT I THE SOLAR LAW CONTROLS AS THE MORE SPECIFIC PROVISION UNDER WELL-SETTLED NEW YORK LAW It is a fundamental rule of statutory construction in New York that a specific provision of law controls over a more general provision addressing the same subject matter. See, e.g., Matter of Town of Islip v. Cuomo, 64 N.Y.2d 50 (1984) (specific statutory provisions prevail over general ones); McKinney’s Statutes § 238. Here, the Solar Law (Sections 151-1 through 155-10) is a detailed and purpose-built framework governing solar energy systems. Section 350-22, by contrast, regulates industrial uses generally and does not specifically address solar facilities. Because the proposed project is indisputably a solar energy system, it must be reviewed under the Solar Law, which is the more specific and directly applicable enactment. POINT II THE TOWN’S INTERPRETATION IMPROPERLY RENDERS THE SOLAR LAW SUPERFLUOUS Zoning provisions must be construed to give effect to all enacted sections and to avoid interpretations that render any provision meaningless. Matter of Raritan Dev. Corp. v. Silva, 91 N.Y.2d 98 (1997). If solar energy systems may be reclassified as industrial uses subject to Town Board approval, then the Town’s Solar Law—carefully enacted to govern precisely such uses— would be effectively nullified. Courts consistently reject such interpretations.

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POINT III THE SOLAR LAW FUNCTIONS AS A USE-SPECIFIC REGULATORY SCHEME THAT OPERATES ACROSS ZONING DISTRICTS The Town’s Solar Law is best understood as a use-specific regulatory framework that applies wherever solar energy systems are proposed, regardless of the underlying zoning district. New York courts have long recognized that municipalities may enact use-specific regulations that operate across zoning classifications, particularly where those regulations address emerging or specialized land uses. See Matter of Retail Prop. Trust v. Board of Zoning Appeals of Town of Hempstead, 98 N.Y.2d 190 (2002) (upholding application of specific zoning provisions governing particular uses). Thus, the fact that the property is zoned industrial does not displace the applicability of the Solar Law. Rather, the Solar Law supplements and governs the review of solar uses within that district. POINT IV THE SOLAR LAW OPERATES AS A PROTECTIVE, OVERLAYTYPE REGULATORY SCHEME—PARTICULARLY IMPORTANT WHERE RESIDENTIAL AREAS ARE IMPACTED The Solar Law functions, in effect, as a protective overlay-type regulatory scheme designed to address the unique land use impacts of solar energy systems—especially where such systems interface with non-industrial uses. Although the subject property is zoned industrial, it directly borders residential neighborhoods. The proposed solar facility will therefore have visual, environmental, and landuse compatibility impacts extending beyond the industrial district.

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The Solar Law includes tailored requirements—such as setbacks, screening, buffering, and visual impact mitigation—that are specifically designed to address these cross-boundary impacts. New York courts have consistently emphasized that zoning must be interpreted and applied with regard to its impact on neighboring properties and districts. See Matter of Frishman v. Schmidt, 61 N.Y.2d 823 (1984) (recognizing the importance of protecting adjacent residential uses in zoning determinations). By contrast, applying only the general industrial use provisions of Section 350-22 would bypass these targeted protections and frustrate the Town’s legislative intent to regulate solar development in a manner sensitive to surrounding communities. Accordingly, the Solar Law must be applied—particularly in this context—to ensure that the project is reviewed under standards specifically designed to mitigate impacts on nearby residential properties.

POINT V THE TOWN IMPROPERLY AVOIDS CONSIDERING PROPER STANDARDS To that end, the Town's selection and application of Industrial Use standards glaringly circumnavigate the far more numerous criteria Section 269-21 sets forth for the issuance of Special Use Permits. Consideration to those factors must be given - and Special Use Permits are to be issued, where appropriate - for "uses having some special impact or uniqueness which requires a careful review of their location, design, configuration, and special impact to determine, against fixed prescribed standards, the desirability of permitting their establishment on any given site. They are uses which may or may not be appropriate in a 4

particular location depending on a weighing, in each case, of the need and benefit against the local impact and effect." Section 350-103.

POINT VI THE DETERMINATION IS INCONSISTENT WITH LEGISLATIVE INTENT AND SOUND ZONING PRACTICE The adoption of a dedicated Solar Law reflects a clear legislative intent to: •

Permit solar energy developments under the proper terms and conditions

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Provide a uniform and predictable approval process; and

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Ensure that such development is appropriately sited and mitigated, particularly near residential areas.

The determination under appeal undermines that intent by diverting review into a generalized industrial-use framework that lacks the specificity required for solar facilities. Such an interpretation is not only legally erroneous but also inconsistent with sound zoning practice. POINT VII LEGAL ERROR SET FORTH ABOVE HAS EFFECTED ARBITRARY AND CAPRICIOUS TERMS & CONDITIONS Given the absence of an appropriate standard of review, it is unsurprising that terms and conditions of the proposal, if approved, would constitute arbitrary and capricious action. Such terms include, but are not limited to: * a surety bond that may be revoked on 30 days' notice from Xerox Corporation, a company in dire financial condition. Its CEO just resigned suddenly. Its stock is trading at approximately $1.25 and is falling rapidly toward penny stock territory; *a failure to properly study and evaluate noise levels; 5

*a failure to evaluate any groundwater increase caused by the habitat clearcutting and associated impacts on the hazardous waste landfill mitigation. *a host community agreement that bestows virtually no benefit on the town, its citizens, or the appellant/neighbors who are directly and dramatically impacted by the solar development

CONCLUSION For the foregoing reasons, the determination that the proposed solar energy system must be reviewed as an Industrial Use under Section 350-22 is arbitrary, capricious, and effected by an error of law. The Appellant respectfully requests that the Zoning Board of Appeals: 1. Reverse the determination; 2. Find that the proposed solar facility is subject to the Town’s Solar Law (Sections 151-1 through 155.10); 3. Publish a written decision and a detailed explanation underpinning it, and 4. Grant such other and further relief as the Board deems just and proper.

Respectfully submitted, Elaine Johnson, Debby Rice, Jerri Breschard, Jane Bashaw, Ben Bashaw

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TOWN OF WEBSTER ZONING BOARD OF APPEALS 1000 Ridge Road Webster, NY 14580 NOTICE OF APPEAL

1. Determination Being Appealed Pursuant to New York State Town Law § 267-a and the Town of Webster Zoning Code, the undersigned hereby appeal from an unwritten determination made by the Town of Webster (Josh Artuso, Director of Community Development) that a proposed solar energy system (solar farm) on property located at the Xerox campus in the Town of Webster be reviewed and approved by the Town Board as an Industrial Use under Section 350-22, rather than being reviewed as a Special Use under the Town’s Solar Energy Law (Sections 151-1 through 155.10). Appellants maintain that such an analysis constitutes reversible error without more, and would further yield an agreement containing arbitrary and capricious terms.

2. Property Involved in Appeal Location: 139 Caracas Drive, Xerox Campus, Webster, NY, 14580 Owner: Xerox Corporation

3. Grounds for Appeal The determination is in legal error for the following reasons and further for those set forth in the accompanying Memorandum of Law: a. The Town of Webster has adopted a specific and comprehensive regulatory framework governing solar energy systems under Sections 151-1 through 155.10 of the Zoning Code (the “Solar Law”). b. The proposed solar farm falls squarely within the definitions and regulatory scope of the Solar Law. c. The application of Section 350-22 (Industrial Uses) improperly supersedes and nullifies the more specific provisions of the Solar Law, contrary to established principles of statutory construction and zoning interpretation. d. The Solar Law provides the appropriate procedural and substantive standards for review, including classification as a Special Use subject to defined criteria. e. Requiring Town Board approval under the Industrial Use provision imposes an incorrect approval pathway not intended by the Town Code for solar energy systems. f. By reason of said improper pathway, approval of the proposal would constitute arbitrary and capricious action, and would yield an agreement containing arbitrary and capricious terms.

4. Relief Requested The Appellant respectfully requests that the Zoning Board of Appeals: a. Reverse the determination of Josh Artuso; b. Find that the proposed solar farm is properly classified and reviewed under the Solar Energy Law (Sections 151-1 through 155.10); c. Issue a detailed, written explanation of its decision, and d. Grant such other and further relief as the Board deems just and proper.

5. Standing The undersigned appellants maintain that they live at the above indicated addresses, which are in very close proximity to the subject proposal, and would be sufficiently impacted by the proposed development as to bestow standing upon them in a subsequent Article 78 proceeding. They are situated far differently from “ordinary citizens.” Upon information and belief - said information being that provided by the applicants, that discussed in public forums, published, or otherwise made available to the public - the solar field would be in plain sight and/or earshot of the appellants’ residences. Additionally, appellants’ properties would be uniquely impacted by diminished natural habitat next door, diminished recreational enjoyment of abutting trails, an anticipated increase in nuisance pests and rodents, and reduced property values.

Respectfully Submitted,