New York courts have long recognized that public utility uses require special consideration when the proposed use is not authorized under the local zoning code, thereby requiring a use variance. Normally, a prohibited use cannot obtain a use variance if the underlying use—often a working farm in the case of renewable energy generation—is legally and financially viable, because the proposal is deemed a self-created hardship.

Daniel Spitzer

New York state law prohibits granting use variances for self-created hardships. But the Court of Appeals has applied a less restrictive standard in evaluating use variances for public utility-type uses. And courts that have reviewed the issue have found renewable energy facilities qualify as public utility uses entitled to review under such less restrictive standard—the Public Utility Variance Standard (“PUV Standard”).

Alicia Legland

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