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Zoning board’s finding that wind farm is a public utility upheld by appellate court  

The Beekmantown Zoning Board of Appeals approved an application for a conditional use permit to allow the construction of a wind farm on a 700-acre parcel in an R-2 Residential District. According the Town’s zoning law, conditional use permits are required for essential services defined in part as, “[e]rection, construction, alteration, operation or maintenance by municipal agencies or public utilities of…electrical or gas substations…and similar facilities that provide essential use and services, an [sic] general (unidentified) public has a legal right to demand and receive.” The petitioners argued that the applicant, Windhorse, is neither a municipal agency nor a public utility and that therefore, the zoning board erred in concluding that the wind farm constitute an essential service.

The Appellate Division, Third Department noted that although “public utility” is not defined in the local zoning law, the wind turbines proposed to be constructed will generate energy which is a useful public service, and further, that such activity will be subjected to regulation and supervision by the New York State Public Service Commission. Noting that great deference is afforded to the determination of zoning boards and that in this case the petitioners did not demonstrate that the board’s determination that Windhorse is public utility for purposes of the local zoning law was unreasonable or not rationally based, the board’s decision is upheld.

As to the petitioner’s second claim that the zoning board failed to conduct an adequate review under the State Environmental Quality Review Act (SEQRA), the Court disagreed noting that the Board issued a thorough and reasoned decision outlining its rationale for issuing a negative declaration. Further, the Court concluded that since the Board conducted an extensive review of the application, considered the various factors set forth in the applicable section of the local zoning law, and imposed numerous conditions to ensure that the project would comply with the local zoning standards, the Board’s issuance of the conditional use permit was neither arbitrary nor capricious nor was it an abuse of discretion.

West Beekmantown Neighborhood Association v Zoning Board of Appeals of the Town of Beekmantown, 2008 WL 2831272 (7/24/2008 )

The opinion is available at: http://decisions.courts.state.ny.us/ad3/Decisions/2008/503704.pdf

Thanks to Todd Mathes, Esq. of Whiteman Osterman & Hanna who alerted me to this opinion. http://www.woh.com/attorneys/attorney_profile.cfm?ID=54

Posted by: Patty Salkin

Law of the Land

28 July 2008

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

The copyright of this article resides with the author or publisher indicated. As part of its noncommercial effort to present the environmental, social, scientific, and economic issues of large-scale wind power development to a global audience seeking such information, National Wind Watch endeavors to observe “fair use” as provided for in section 107 of U.S. Copyright Law and similar “fair dealing” provisions of the copyright laws of other nations. Send requests to excerpt, general inquiries, and comments via e-mail.

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