Webster ZBA denies Solar Garden appeal, tables Waterview Phase 3 again

The Webster Zoning Board of Appeals voted 5-0 Tuesday night to deny an appeal that challenged the town's classification of the Webster Solar Garden as an industrial use rather than a special use requiring review under the town's Solar Energy Law. The board reached that decision without ever ruling on a procedural question, whether the appeal itself had been filed within New York's 60-day window, that had tabled the case at its June 9 meeting.

The appeal, filed by five residents of the Grand Meadows Way and Pine Lakes Trail neighborhoods that border the solar site, challenged a classification decision made by Josh Artuso, Webster's Director of Community Development, who determined in an April 1 notice that the project qualified for review as an industrial use rather than triggering the special use permit process under the town's Solar Energy Law.

At Tuesday's meeting, the appellants' attorney argued the board should move directly to the underlying classification question. He argued first that no valid timeliness clock had ever started because there was no formal "filing" that triggered it, and separately that even if the appeal were late, the board should resolve the merits anyway rather than risk a case bouncing back through State Supreme Court over the timeliness issue alone. The board agreed to proceed to the merits without deciding the timeliness question either way.

On the merits, the board found that the town's Solar Energy Law requires a special use permit for large-scale solar projects only in residential districts, and that the Solar Garden site sits in an industrial district, where the code's industrial-use provisions do not themselves call for a special use permit. The appellants' attorney argued the distinction carried practical stakes: a special use permit review would have required the planning board and town board to weigh a broader set of siting factors, while the industrial-use classification requires only confirming that the proposed activity matches a permitted use on the list. Board members said they did not read the two code sections as being in conflict, so no dispute between a specific and a general provision needed to be resolved. One board member noted, without challenge from other members, that New York courts require zoning code to be read as a whole, an argument the appellants' attorney had raised to support reading the residential-district language more broadly. The board considered that argument and rejected it on the record.

The vote to deny the appeal was unanimous. During the public hearing, one of the appellants spoke against the project directly, telling the board that new homes are under construction roughly 200 feet from the site and that the project required clearing roughly 17 acres of trees, figures that reflect the appellant's own account and were not independently verified. The Solar Garden sits on the former Xerox campus adjacent to a capped, Xerox-era hazardous waste landfill under active oversight from the U.S. Environmental Protection Agency and the New York State Department of Environmental Conservation. The appeal's denial leaves the Webster Solar Garden's industrial classification, and the Industrial Use Permit the Town Board approved on a 3-2 vote in April, in place. A separate Article 78 lawsuit challenging that Town Board approval remains pending in court and is unaffected by Tuesday's ZBA decision.

Waterview Apartments Phase 3 tabled again

The board also took up Waterview Apartments Phase 3, Legacy Development Co.'s proposed 56-unit expansion of six buildings and a community center at the northwest corner of Willow Point Way and Nautical Mile Drive.

The applicant sought renewal of two area variances, an 18.7-foot front setback where 75 feet is required and a 38.5-foot buffer from the adjacent single-family district where 100 feet is required, that the same board had granted roughly a year earlier. Those variances had expired before the developer acted on them.

Chris Nadler, the applicant's attorney, told the board the renewal notice arrived within days of a personal medical emergency, and that he failed to calendar the deadline as a result. Separately, he said plan finalization has been stalled by a state court order out of Albany that has frozen the state Department of Environmental Conservation from issuing wetland jurisdictional determinations the project needs.

Neighbors along McEwen Drive opposed the renewal, disputing the applicant's characterization that the new buildings would match existing setbacks and raising concerns about density and proximity to the single-family homes across McEwen Drive. After extended discussion, a board member drafted a detailed motion to grant the variances with a list of conditions, including specific building shifts, buffer plantings, and a recommendation that the town study traffic control at two nearby intersections. Before the board could vote, a procedural dispute arose over whether the motion had a valid second, and the member who had seconded it withdrew. Rather than risk the motion failing outright, the applicant's attorney asked the board to table the matter instead. The board did, voting unanimously to table Waterview Phase 3 until further notice. No variance was granted Tuesday.

Three routine variances approved

The board also approved three residential variances unanimously and without significant discussion. It granted a rear setback variance of 42.4 feet where 50 feet is required for a 1,080-square-foot addition at 1249 Millcreek Run, citing similar additions elsewhere on the street and an unusually small existing house. It approved a 6-foot privacy fence in the front yard of a corner lot at 1084 Bright Stream Way, noting an existing tree line that screens the fence from view. And it approved a 200-square-foot utility shed in the front yard of a corner lot at 785 Somerdale Drive, sited near two property lines but screened by an existing berm and mature trees. All three applicants have one year to complete their projects.

The board also approved the minutes of its June 9 meeting by voice vote.

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