Critique of wind law recently enacted by Town of Holland, Erie County, N.Y. 

There are two general observations I would like to share before addressing specific provisions in the local law. It appears that the Holland town board adopted its WECS law without first preparing a draft Environmental Impact Statement [EIS] and using the procedures mandated by the State Environmental Quality Review Act [SEQRA] to fully and objectively assess areas of environmental concern, potential mitigation measures, and alternatives to allowing industrial-scale wind farms. Common sense alone dictates that a town board should comprehensively examine the likely adverse impacts of large-scale wind farms before it decides whether to ban them from their community (as a growing number of towns have done), or to embrace them and establish specific criteria and standards to regulate such projects. It is truly unfair to the residents of a town to say “Yes” to wind farm development without first being fully informed of the pros and cons. As the elected officials in Hamlin, a Monroe County town located on Lake Ontario, learned this past January, it is also illegal to adopt a wind energy law without first taking a “hard look” at all relevant areas of environmental concern. Hamlin’s wind law was challenged by a group of residents concerned about health issues, their town’s rural character, and impacts on property values. A State Supreme Court Justice concluded that the Hamlin town board had failed to the “hard look” mandated by SEQRA and nullified the law (which, frankly, did a better job protecting the town’s residents than Holland’s WECS law).

A second observation I have concerns the zoning “tool” used by the Holland town board to regulate wind farms. Holland’s WECS law seeks to control wind farms by way of a “special use permit.” By selecting this relatively weak zoning mechanism rather than requiring a wind developer to obtain a rezoning, the Holland Town Board has significantly reduced its ability to say “No” to a future wind project. Under NYS zoning law, the inclusion of an activity in a zoning law as a special permit use is tantamount to a legislative finding that the permitted use is in harmony with a community’s general zoning plan and will not adversely affect the neighborhood. If the standards spelled out in the zoning regulations are met, the applicant has a virtual right to the special use permit. In contrast, if a rezoning were required for a wind project, the town board would have far greater discretion in deciding whether the location and scale of a proposed wind farm were in the best interest of the community and consistent with the town’s comprehensive plan. Armed with the broader discretion inherent in a rezoning decision, the town board would have greater flexibility in deciding whether to approve or deny the proposed wind farm.

The following is a sampling of specific inadequacies in Holland’s WECS law that convince me that its provisions unduly favor wind farm development at the expense of the health and welfare of the town’s residents …

Download original document: “Critique of wind law recently enacted by Town of Holland, Erie County, N.Y.”

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