GAINES – In late August, Chris Watt had a wind turbine set up on his farm along Route 98. That structure, which generates 10 kilowatts of electricity, hasn’t pleased his next-door neighbors.
Mary Neilans of 3077 Oak Orchard Rd. and her brother Robert have filed an Article 78 lawsuit against Watt and the Gaines Town Planning Board. The Neilanses allege that the town failed to follow proper procedures in allowing the turbine. The board waived site plan review and didn’t offer residents a chance to comment on the turbine during a public hearing, the lawsuit states.
The Planning Board “committed a wholesale violation of local procedure,” according to the lawsuit filed in state Supreme Court by attorney David Roach of DiMatteo Law Office in Warsaw.
The Planning Board should have required a special use permit, held a public hearing, reviewed the site plan and sought an opinion on the permit and site plan from the Orleans County Planning Board, according to the lawsuit.
“The procedure employed here was improper, backwards and stunted,” the lawsuit states.
Roach, in an interview, said the town’s responses to the suit are due Wednesday, a week before the court date. He wouldn’t say if the neighbors want to have the turbine taken down. But he said the Planning Board didn’t follow proper procedures in allowing the structure.
Watt and town officials say the turbine is 140 feet high. It has three blades that each measure 12.6 feet long. The lawsuit says the turbine stands 160 feet.
Before the turbine was erected in late August, the Neilanses should have had a chance to publicly comment about the turbine’s impact on their rural property, according to the lawsuit. The structure “creates an incessant and intrusive noise, and visual blight that negatively impact the quiet enjoyment of their property,” attorney Roach writes in the lawsuit.
The suit says town officials and Watt are to appear at the Orleans County Courthouse at 9:30 a.m. on Nov. 2.
Tibbs Ahlberg, the Planning Board chairman, said code enforcement officer Robert McGaffick issued a building permit in June for the turbine. The town requires setbacks that are one and half times the height. Watt met that standard so the Planning Board waived the site plan review, Ahlberg said.
The turbine is an accepted agriculture use, according to the state Department of Agriculture and Markets, Ahlberg said. Because it’s an accepted use and Watt’s farm is in an agricultural district, Ahlberg said the project didn’t require a special use permit.
The Neilanses, in the lawsuit, contend a permit should have been required because the turbine exceeded 120 feet in height. The say that standard is stated in the town code.
Ahlberg said he believes the Planning Board, which includes Watt, will be vindicated in court. Watt said he recused himself from the board’s discussions and decision in regards to his turbine.
“In my opinion (the lawsuit) has no basis,” Ahlberg said.
Watt said the lawsuit is “frivolous.”
“I hope this goes to court so the truth gets out to the public and the many non-truths will have to be accounted for,” Watt said.
He also disputed the negative impacts of the turbine, which stands on a self-supporting lattice.
“If you stand near the road, you can’t hear it,” Watt said. “But you can hear the traffic, you can hear birds at times and the tractors in the orchards.”
Since Watt’s turbine was built, two other Gaines farmers, Jim Kirby and David Kast, have been granted permits from the town to build similar-sized turbines. Those projects also are noted in the lawsuit as not meeting the standard for proper review.
Ahlberg said the suit will likely delay construction of those turbines and could cost Kirby and Kast the chance for federal and state incentives to help pay for the projects. Some of those incentives expire by Dec. 31.
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