CRAIG BASHAW DEBORAH RICE DAVID RICE v. IN HIS CAPACITY AS DIRECTOR OF COMMUNITY DEVELOPMENT FOR THE TOWN OF WEBSTER TOWN OF WEBSTER NY TOWN OF WEBSTER NY PLANNING BOARD TOWN OF WEBSTER NY ZONING BOARD OF APPEALS TM MONTANTE SOLAR DEVELOPMENTS LLC XEROX CORPORATION (2026)

In this special proceeding pursuant to Article 78 of the CPLR, Petitioners Jane Bashaw, E. Craig Bashaw, Deborah Rice, and David Rice (collectively, "Petitioners") challenge the procedure by which Respondents the Town of Webster, including its Director of Community Development, Planning Board, and Zoning Board of Appeals ("ZBA") (collectively, the "Town Respondents") approved an Industrial Use Permit authorizing the construction of a solar array in the Town (the "Project"), to be installed by Respondent TM Montante Solar Developments, LLC ("Montante Solar") on property owned by Respondent Xerox Corporation ("Xerox") (the Town Respondents, Montante Solar, and Xerox will be collectively referred to as the "Respondents"). For the reasons set forth below, the Petition is denied in its entirety.

BACKGROUND

Petitioners commenced this proceeding by filing a petition, with exhibits, on May 1, 2026 (NYSCEF Doc. Nos. 1-16). Petitioners then filed an amended petition, without obtaining leave of Court, on July 30, 2026 (NYSCEF Doc. Nos. 24-33). On August 10, 2026, Petitioners filed a second amended petition, again without obtaining leave from the Court to do so (NYSCEF Doc. Nos. 34-46). On August 18, 2026, the Court entered a Stipulated Order agreed upon by Petitioners and Respondents directing that the first amended petition, with exhibits (NYSCEF Doc. Nos. 24-33), would be considered the operative pleading in this proceeding, with the addition that David Rice and Deborah Rice, inadvertently omitted from the caption of the first amended petition, would be considered Petitioners (NYSCEF Doc. No. 54) (for ease of reference, the first amended petition (NYSCEF Doc. No. 24) will be referred to herein as the "Petition").

In their Petition, Petitioners challenge the Town Respondents' authorization of the Project, which borders the neighborhood in which they reside. The Petition alleges four causes of action. First, Petitioners maintain that the Town Respondents erred in designating the Project as a Type II action under the State Environmental Quality Review Act (SEQRA), and therefore not subject to further environmental review. Petitioners argue that, while the original design for the Project was eligible for Type II designation because it was to be built on top of a landfill containing hazardous materials (the "HazMat Landfill"), the final Project design, calling for a portion of the Project to be built over a construction and demolition landfill (the "C&D Landfill"), was not eligible for Type II designation. Second, Petitioners assert that the Town Respondents erred in applying their own Town Code, and that a Special Use Permit was required for the Project, rather than the Industrial Use Permit that was in fact approved. Third, Petitioners argue that the Town Respondents also erred in applying the Town Code because, based on changes to the Project scope, the Project should have been sent back to the Planning Board for further scrutiny before being approved by the Town Board. Finally, Respondents maintain that, based on the errors previously asserted, the Town Board's ultimate decision to issue an Industrial Use Permit was arbitrary and capricious (NYSCEF Doc. No. 24).

In opposition to the Petition, the Town Respondents submitted a Verified Answer with Objections in Point of Law (NYSCEF Doc. 63) and filed the administrative record (NYSCEF Doc. Nos. 56-62). Xerox also filed a Verified Answer with Objections in Point of Law (NYSCEF Doc. No. 64). Montante Solar likewise filed a Verified Answer with Objections in Point of Law (NYSCEF Doc. No. 65), and also submitted an affirmation appending photographs and a memorandum of law in opposition to the Petition (NYSCEF Doc. Nos. 66-68). In addition to the Petition with exhibits (NYSCEF Doc. Nos. 24-33), Petitioners filed a number of reply affirmations (NYSCEF Doc. Nos. 69-75). The Court has considered all of these papers, as well as the oral argument held on September 14, 2026, in preparing this Decision and Order.

DISCUSSION

I. Respondents' Threshold Arguments Are Unavailing.

At the outset, Respondents raise a number of threshold arguments, asserting that the Petition must be dismissed because Petitioners lack standing to pursue their claims, that their claims are time-barred, and that Petitioners cannot raise arguments in this proceeding which they failed to raise during the Town's administrative review.¹ The Court does not find that any of these arguments warrant the dismissal of the Petition.

A. Petitioners Have Standing to Assert their Claims.

"In land use matters . . . the plaintiff, for standing purposes, must show that it would suffer direct harm, injury that is in some way different from that of the public at large" (Society of Plastic Indus. v. County of Suffolk, 77 NY2d 761, 774 [1991]). In opposition to Respondents' assertion that they lack standing, Petitioners submitted affirmations noting that the Project would abut their back yards (for the Bashaws) or be located directly across the street (for the Rices), that they would be able to see the solar panels and hear the capacitors from their homes, and that their enjoyment of wildlife and other aspects of a wooded area that would be cut for the Project would be disrupted (NYSCEF Doc. Nos. 72, 74, 75). Petitioners state that they are concerned that these issues would negatively affect their quality of life and decrease the value of their homes (id.). Petitioners have therefore set forth direct harm that they maintain they would suffer which, based on the proximity of their homes to the Project, is distinct from the public at large (see Sierra Club v. Village of Painted Post, 26 NY3d 301, 310-311 [2015] [finding individual who resided near proposed rail facility had standing to pursue SEQRA challenge based on increased noise]).

B. Petitioners' Claims Are Timely.

The four-month limitations period set forth in CPLR 217 applies to proceedings alleging a SEQRA violation (Becker-Manning, Inc. v. Common Council of City of Utica, 114 AD3d 1143, 1144 [4th Dept. 2014]). The limitations period runs from when "the determination to be reviewed becomes final and binding upon the petitioner" (CPLR 217[1]; see also CPLR 7801[1] [Article 78 proceeding may not be brought when determination is not yet final]).

Here, Respondents argue that Petitioners' claims, originally filed on May 1, 2026 (see NYSCEF Doc. No. 1), are untimely because more than four months elapsed between the Planning Board's initial Type II designation on November 18, 2025, and the filing of this proceeding (see NYSCEF Doc. No. 64, ¶ 103). However, as Petitioners note in their reply, the Town Board did not issue its final approval of the Industrial Use Permit until April 2, 2026 (see NYSCEF Doc. No. 69). It was only at this point that Petitioners' injury became concrete: until the Town Board approved the Industrial Use Permit, "their injury was only contingent," as the Project could have been defeated by persuading the Town Board to vote against it (Matter of Eadie v. Town Bd. of Town of N. Greenbush, 7 NY3d 306, 317 [2006]). Accordingly, Petitioners' commencement of this proceeding on May 1, 2026, was well within the limitations period.

C. Petitioners' Claims Are Preserved.

Respondents also argue that Petitioners failed to preserve some or all of their claims by failing to raise them during the administrative review process (see Forjone v. Bove, 280 AD2d 948 [4th Dept. 2001]). The record reflects that the Petitioners and their counsel were in fact engaged in the administrative review process before the Town Respondents. Both Mr. and Ms. Bashaw spoke in opposition to the Project at the April 2026 meeting at which the Town Board approved the Industrial Use Permit, and in addition to noting their general concerns regarding the Project, specifically raised procedural concerns, including questioning the classification of the Project as an industrial use, one of the central claims of their Petition (NYSCEF Doc. No. 61 at 220-221). Petitioners' counsel also spoke at the same meeting, specifically questioning the procedure followed by the Town Respondents and raising whether changes to the Project required further Planning Board review (id. at 224-225). The meeting minutes reflect that Petitioners' counsel "stated that the application had been mischaracterized early in the process" (id. at 224), and while the record does not contain a verbatim transcript of what was said at this meeting, it can reasonably be inferred that the "mischaracterization" counsel was referring to is the same allegation forming the basis for Petitioners' SEQRA claim. Further, it is undisputed that Petitioners appealed the denial of the Town Respondents' decision to classify the Project as an industrial use to the Zoning Board of Appeals (Petition, ¶¶ 53-56). Respondents offer little detail in support of their argument (see NYSCEF Doc. No. 64, ¶¶ 135-136; NYSCEF Doc. No. 68 at 18-19) and have failed to demonstrate that Petitioners' claims are unpreserved.

II. The Petition Fails on the Merits.

Having rejected Respondents' threshold arguments seeking the dismissal of the Petition, the Court now turns to the merits of Petitioners' claims. For the reasons set forth below, the Court concludes that Petitioners fail to establish an entitlement to relief on any of their four causes of action.

A. Respondents' Type II Designation Was Proper.

Under SEQRA and its implementing regulations, actions determined to be Type II are not subject to further environmental review (6 NYCRR 617.5(a); see generally Environmental Conservation Law § 8-0113). Here, the Planning Board cited two specific reasons for designating the Project as a Type II action (NYSCEF Doc. No. 59 at 23). Both reasons are based on a regulation designating the "installation of solar energy arrays where such installation involves 25 acres or less of physical alteration" as a Type II action when such arrays are installed on certain sites (6 NYCRR 617.5(c)(14)). The Planning Board, and ultimately the Town Respondents in their final determination, found the Project was a Type II action because it involved the installation of solar arrays on "closed landfills" and also a "currently disturbed area[ ] at [a site] zoned for industrial use" (6 NYCRR 617.5(c)(14)(i, v)).

SEQRA itself does not contain a provision concerning judicial review, meaning the Courts "must be guided by standards applicable to administrative proceedings generally: 'whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion' " (Jackson v. New York State Urban Dev. Corp., 67 NY2d 400, 416 [1986] [quoting CPLR 7803[3]]; see also Elizabeth Street Garden, Inc. v. City of New York, 42 NY3d 992, 994 [2024] ["Judicial review of a SEQRA determination is generally limited to whether the determination is arbitrary and capricious, an abuse of discretion, or affected by an error of law."]).

Although they characterize them differently, the parties do not dispute the essential facts. Under its initial design, the Project would have included solar panels on top of both the asphalt cap covering the HazMat Landfill as well as panels built on top of the C&D landfill. In its final design, in response to community feedback, the Project did not include panels on the asphalt cap covering the HazMat Landfill (compare NYSCEF Doc. No. 61 at 307 [original site plan] with id. at 130 [final site plan]). Petitioners argue that, while the initial project scope may have appropriately been designated as a Type II action because it covered the HazMat Landfill, the final design, in which only a portion of the project is built on top of the C&D landfill, does not support a Type II designation.

The Court does not find Respondents' classification of the Project as a Type II action based on a portion of it being constructed over the closed C&D Landfill to be arbitrary and capricious or affected by an error of law. It is undisputed that the project covers the C&D Landfill (see NYSCEF Doc. No. 61 at 130 [final site plan]). Further, while the Project no longer includes solar panels constructed on top of the asphalt cap covering the HazMat Landfill, the solar panels will still surround the cap (see id.). Combined, these facts reasonably support Respondents' conclusion that the Project in its totality is installed on "closed landfills" (6 NYCRR 617.5(c)(14)(i)). Petitioners offer no authority in support of their argument that the Project cannot utilize this Type II designation because it is not built entirely upon landfills, and on the record before it, the Court cannot conclude that Respondents' classification was arbitrary or erroneous.

In any event, the Project plainly qualifies for Type II designation because it is sited upon a "currently disturbed area[ ] at [a site] zoned for industrial use" (6 NYCRR 617.5(c)(14)(v)). The entire Project site is the subject of a permanent environmental easement granted by Xerox to the State of New York, pursuant to which the site's uses are restricted to industrial or commercial purposes pursuant to 6 NYCRR § 375-1.8(g), and the site is subject to continued environmental monitoring (NYSCEF Doc. No. 61 at 138 [environmental easement]; see also NYSCEF Doc. No. 62 at 78 [Community Fact Sheet prepared by Xerox explaining that a "campus-wide environmental easement remains in place]). The site plan itself demonstrates that more than a dozen monitoring wells exist on the Project site for purposes of the required and ongoing environmental monitoring (see NYSCEF Doc. No. 61 at 130). The Project is therefore sited on a "currently disturbed area[ ]," is zoned for industrial use, and was properly designated by Respondents as a Type II action for this reason as well.

B. Respondents Reasonably Determined that an Industrial Use Permit Was Appropriate.

Petitioners' second cause of action asserts that, pursuant to the Webster Town Code, the Town Respondents should have required Montante Solar to obtain a Special Use Permit, rather than an Industrial Use Permit (Petition, ¶¶ 67-76). Petitioners argue that Chapter 155 of the Town Code,² which concerns solar energy systems, requires the issuance of a Special Use Permit for the Project. If the Project was required to obtain a Special Use Permit, the Town Board would be required to find that a number of specific conditions were satisfied (see Webster Town Code § 269-21). Petitioners appealed the Town's decision to require an Industrial Use Permit, rather than a Special Use Permit, to the Town's ZBA. The ZBA affirmed the decision to require an Industrial Use Permit (see Petition, ¶¶ 53-56).

The Court must uphold the ZBA's determination so long as it is not "irrational, unreasonable nor inconsistent with the governing code" (16 Main St. Property, LLC v. Village of Geneseo, 225 AD3d 1204, 1205 [4th Dept. 2024] [internal quotation marks and alterations omitted]). "It is well settled that the interpretation by a zoning board of its governing code is generally entitled to great deference by the courts" (Freck v. Town of Porter, 158 AD3d 1163, 1164 [4th Dept. 2018]), although where the question is one of pure statutory construction, the Court is empowered to undertake an independent review (Livingston Parkway Assn., Inc. v. Town of Amherst Zoning Bd. of Appeals, 114 AD3d 1219, 1220 [4th Dept. 2014]).

The Town Code states that "[l]arge-scale solar energy systems are permitted through the issuance of a special use permit within all residential districts" (Webster Town Code § 155-6(A) [emphasis added]). In contrast, the following sub-section states that "[l]arge-scale solar energy systems are permitted in commercial districts under the site plan review process of the Planning Board" (Webster Town Code § 155-6(B)). Accordingly, the Town Code does not specifically require that installations in industrial areas such as the Project obtain a Special Use Permit.

Petitioners further argue that the Project does not fit within the list of permitted uses in an industrial district set forth in the Town Code (see Petition, ¶¶ 70-73). Section 350-22 of the Town Code does enumerate a number of specific permitted uses, but also includes a provision permitting "[o]ther industrial, or similar and incidental, uses . . . of the same general character as those permitted" (Webster Town Code § 350-22(A)(19)). The Town Respondents could reasonably conclude, based on this provision, that the large-scale solar array of the Project is "of the same general character" as "public utilities," a specifically enumerated permitted use (see Webster Town Code § 350-22(A)(4)). In sum, the Town Respondents' determination, affirmed by the ZBA, that the Project should be required to obtain an Industrial Use Permit, rather than a Special Use Permit, was not based on an unreasonable or erroneous interpretation of the Town Code, and Petitioners are not entitled to relief on their second cause of action.

C. Respondents Did Not Misapply the Town Code Concerning Changes to the Project Scope.

Petitioners' third cause of action also asserts that Respondents misapplied the Town Code. Petitioners maintain that, following the change in scope to the Project, the Project should have been resubmitted to the Planning Board to conduct a new review (Petition, ¶¶ 77-91). In support of this claim, the only provision of the Town Code cited by Petitioners is Section 350-22(D)(7) (see id., ¶ 85). This Section provides: "Minor changes in the use, location, siting, height, length and width of structures may be authorized by the Planning Board without Town Board action as long as the total changes do not exceed 10% of the final approved plan" (Webster Town Code § 350-22(D)(7)). By its plain language, this provision grants additional authority to the Planning Board. It does not require the Town Board to remand a project to the Planning Board. Petitioners are thus not entitled to relief on their third cause of action.

D. Respondents' Approval of the Industrial Use Permit Was Not Arbitrary and Capricious.

Petitioners' fourth and final cause of action asserts that the Town Respondents' ultimate approval of the Industrial Use Permit for the Project was arbitrary and capricious (Petition, ¶¶ 92-98). This claim is based on Petitioners' other allegations that the procedure followed by Respondents was arbitrary or erroneous (see id., ¶¶ 93-94). Based on the Court's conclusions above that Respondents' designation of the Project as a Type II action was not erroneous or arbitrary, and that the Town Respondents did not apply the Town Code in an erroneous or arbitrary manner, Petitioners' fourth cause of action must be denied as well.

CONCLUSION

Based on the Court's review of the papers submitted, oral argument heard from all parties, and upon due deliberation, it is hereby

ORDERED, that the Petition is DENIED in its entirety.

Dated: October 9, 2026

Rochester, New York

Hon. John P. Bringewatt, A.J.S.C.

FOOTNOTES

1.   The Town Respondents pleaded that this matter should be transferred to the Appellate Division pursuant to CPLR 7804(g) (see NYSCEF Doc. No. 63, ¶¶ 26-27), but confirmed at oral argument they were not advancing that argument. In any event, the Petition here does not raise a question pursuant to CPLR 7803(4), and accordingly CPLR 7804(g) does not apply.

2.   The Webster Town Code is accessible at https://ecode360.com/WE0220.

John P. Bringewatt, J.