Some towns have welcomed and embraced the use of wind power as an alternative energy source; others have not. The U.S. District Court for the Western District of New York said, similar to the Don Quixote story, these towns might see monstrous giants instead of windmills.
Communities such as Italy, N.Y., are reluctant to use wind power because of concern surrounding how wind turbines may affect the town’s scenic and aesthetic character.
In Ecogen v. Italy et al., Judge David G. Larimer validated a moratorium enacted by the town to prohibit the company from constructing wind turbines and other related structures in the town.
Wind power project
The case centers on wind turbines that the plaintiff wants to construct in Italy and Prattsburgh, N.Y.
The company has proposed building wind farms that will hold about 30 wind turbines in Prattsburgh and 23 in Italy. In addition to the turbines, an electrical substation would need to be built to connect with an electrical transmission line in Italy.
In June 2004, Italy’s town board enacted a moratorium that prohibited the construction or erection of wind turbine towers, relay stations and/or other support facilities.
The duration of the moratorium was initially set for a period of six months, but the town board renewed the moratorium several times.
The moratorium contains a hardship provision, which Ecogen did not apply for, claiming it would be futile to do so.
The company alleged the moratorium interfered in not only the Italy project but also the Prattsburgh one because the project in Prattsburgh depended on the electrical substation being built in Italy.
Ecogen claimed the moratorium put the company at risk of losing millions of dollars in tax credits, which are contingent on the Prattsburgh project being completed by Dec. 31, 2007.
Ecogen filed a lawsuit against Italy and its town board and supervisor on March 29, asserting the town’s moratorium violated the 14th Amendment.
Moratorium – facially valid
The district court first determined the moratorium was facially valid, noting Italy had a legitimate governmental interest in preserving its aesthetic character.
If the aim is to prevent wind towers from being built in Italy, the court said, certainly it makes some sense to prohibit the construction of wind tower support facilities, such as substations, as well.
The court rejected Ecogen’s argument that the moratorium was unreasonable for prohibiting wind power electrical substations but allowing other types of substations.
Duration of moratorium
The district court found the two years that the moratorium had been in effect could be considered unreasonable.
The U.S. Supreme Court in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency stated that it may well be true that any moratorium that lasts for more than one year should be viewed with special skepticism.
The town contended the moratorium was needed to give it time to develop a comprehensive zoning plan, which the town asserted was almost finished.
The district court ordered Italy to either enact a comprehensive zoning plan within 90 days of the court’s order or render a decision on Ecogen’s application for a hardship exception within 90 days of its filing.
Daily Record (Rochester, N.Y.) Jul 28, 2006
by Helen Nguyen
This article was originally published in The Daily Record, Rochester, N.Y., another Dolan Media publication.
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