Ten town of Lyme property owners have brought an Article 78 proceeding against the Town Council, claiming it improperly rejected a petition protesting the adoption of a local law regulating the siting of wind turbines.
The owners group is asking a state Supreme Court judge to declare that its protest petition valid and that a local law adopted subsequent to the board’s rejection of the petition be declared invalid, according to documents filed Monday at the Jefferson County clerk’s office.
The property owners claim that a local law adopted by the board May 6 contains setback requirements for turbines that are “excessive” and effectively bans the development of wind-generating facilities within the town.
“We are not only challenging the protest petition invalidation, but the zoning law itself as capricious and arbitrary,” said Dawn M. Munk, one of the landowners and spokeswoman for the group.
The landowners all are part of the pro-wind-power group Voters for Wind. They had expected to be a part of BP’s Cape Vincent Wind Farm before the zoning amendment was designed and passed.
“We are not giving up on this,” Mrs. Munk said.
The council was served the legal papers Wednesday night. A press release from Voters for Wind said the court has set July 31 as the return date for the petition.
“I think we were all surprised,” Supervisor Scott G. Aubertine said. “We’ll turn it over to the attorney and see what he recommends.”
At issue is a section of town law dealing with zoning changes. Under the law, if owners representing more 20 percent of the total acreage in the town formally protest a change, a three-fourths majority of town board members is required to approve it.
The town rejected the petition May 6, maintaining that the signatures of property owners contained in the petition did not represent at least 20 percent of all property within the town. The board based its rejection on a review of properties by its assessor that concluded, among other things, that not all property owners of each parcel on the petition had signed it and that some of the signers were not listed on tax rolls as the owners.
The assessor said that each sheet of signatures on the petition needed to be witnessed and notarized or else there “is no proof that the actual property owner signed the petition.”
The property owners say the signatures on their protest petition represent 9,610 acres, or nearly 27 percent, of the town’s 35,920 acres. A representation of at least 7,184 acres would be needed to comprise at least 20 percent of the acreage. The town counters that, after removing parcels for which not all owners signed the petition and removing other ineligible signers, the petitioners represent just 5,302 valid acres.
According to the assessors’ report from May 6, the foremost reason for rejecting parcels was that not all of the property owners of the parcels had signed the petition. For example, if a husband signed the petition but not his wife, when both are listed on the tax roll, the husband’s signature would be invalid. That accounted for about 4,167 acres that were rejected.
“We did find an attorney general’s ruling from 1989 that said both signatures are not required, so they illegally disposed of the petition,” Mrs. Munk said.
On May 6, the board adopted a law requiring, among other things, a minimum setback of 4,500 feet from the high-water marks of Lake Ontario and the Chaumont River. It mandated the same setbacks from the village of Chaumont and the hamlet of Three Mile Bay.
According to court documents, the law makes “no distinction between the establishment of a single wind turbine or a project which includes dozens of turbines” under the state Environmental Quality Review Act and that siting of “small” wind energy facilities can be subject to the approval of adjoining property owners even if all other criteria for the location are met. In their Article 78 petition, the property owners contend this requirement, in essence, would give adjoining property owners “an absolute veto over windmills.”
This was one provision that the council had taken out during its work sessions on the law. Another provision that is in the final version of the law, but had been removed during the work sessions, stated that the town would be entitled to all wind and sound data from wind measurement towers.
The town board approved the local law in a 3-2 vote, with Councilmen Warren A. Johnson, G. Norman Schreib and James R. Madill voting in favor. Supervisor Scott G. Aubertine and Councilman Michael P. Countryman voted against the amendment. If the protest petition had been accepted, four favorable votes would have been needed to adopt the amendment.
The property owners are asking a judge to rule the protest petition valid and thus require that a supermajority be achieved to approve the local law.
The property owners bringing the Article 78 proceeding are Julie E. and Guy E. Gosier, Jeanine and David N. Bourquin, Janice and Lawrence E. Comins, Dawn M. and Charles A. Munk, Charles B. Kingsley and Charles W. Mount. They are represented by Syracuse attorney James A. Gosier.
Times staff writer Nancy Madsen contributed to this report.
By Brian Kelly
Times Staff Writer
10 July 2008
|Wind Watch relies entirely
on User Funding