Schoharie County’s request for a temporary restraining order against the state’s tax formula for assessing large-scale solar and wind was denied in Albany County Supreme Court Tuesday.
The Article 78 lawsuit that the formula is unconstitutional, however, will go forward.
“I won’t say I’m surprised,” Energy Committee chair Don Airey of Blenheim, who’s been leading the fight, said Wednesday.
“Obviously, we thought we had a good legal argument. But the state’s going to do whatever it wants to do when it comes to solar and wind.”
The timing of Tuesday’s hearing was critical: assessors needed to have their assessments finalized by May 1—yesterday.
If the TRO had been granted, it would have maintained the status quo.
Attorney Dylan Harris of Whiteman Osterman and Hanna represented supervisors “individually and in their official capacity” before Albany County Supreme Court Judge Justin Corcoran in the request for the TRO--but Mr. Airey characterized it as a “taxpayer lawsuit.”
The lawsuit sought a TRO against changes in the state’s formula for taxing solar and wind–changes that will mean a $3.3 million loss county-wide in just the case of the NextEra solar project in the Town of Sharon.
The TRO would have been unlikely to change that long-term, but it would have bought the county another year of taxes at the existing levels, Mr. Airey said.
“It’s all about compensation,” he said. “If we’re going to host [these projects], we want to get paid.”
In April 2022, supervisors successfully won a TRO on the then-new assessment model, which prohibited the State Department of Taxation and Finance from implementing it.
But the state responded by writing its way around the TRO with Part “N,” an amendment to the Tax Law, which gives the authority for taxing large-scale solar, wind, and battery storage projects to the Commissioner of Taxation and Finance.
Now--and still—in an Article 78 filing, they’re seeking to have the state’s Real Property Tax Law declared unconstitutional, in part, because of that—that it takes away local authority--
and because it will “dramatically increase the tax burdens of properties not given preferential treatment…[necessitating] dramatic cuts in services” and/or tax rates.
To illustrate that point, the lawsuit again points to the Town of Sharon, where the 50-MW NextEra project was independently appraised at $99 million.
Using the state’s new model? Its assessed value is only $22,585,953–a loss of $76,414,047 to the tax base.
Additionally, the Article 78 suit charges that the state’s model will curtail the authority of assessors across the state to choose their own methodology for realistically and fairly valuing properties in their own communities, the lawsuit claims.
The lawsuit also argues that the tax law unfairly assesses large projects at a lower rate than those one megawatt or smaller, calling it “arbitrary and capricious as it serves no government interest.”