January 11, 2012
New York

Judge rules out wind tower near Orangeville cabin

By Matt Surtel, The Daily News, thedailynewsonline.com 11 January 2012

ORANGEVILLE – A judge’s decision has reversed two authorizations for a tower in the planned Stony Creek Wind Farm.

State Supreme Court Justice Patrick NeMoyer ruled Jan. 4 in favor of property owner Robert White, who said the planned wind turbine was too close to his hunting cabin off Bantam Road.

The decision nullifies the special use permit and site plan approvals for tower T-28.

NeMoyer ruled the planned turbine was improperly sited within 1,320 feet of White’s cabin. He also dismissed Stony Creek LLC’s counterclaim that the cabin is not a dwelling.

White’s cabin is a one-story structure of about 200 square feet and classified as by the town assessor as a seasonal residence, according to the decision.

The planned turbine was slated to be 426.4 feet tall. It would have been located within 800 to 900 feet of the cabin, within the Town of Orangeville’s setback requirement.

NeMoyer’s decision sidesteps many of the arguments presented by both sides – focusing instead on legal definitions and requirements regarding the cabin and tower.

He found that Stony Creek mapped numerous small dwellings in Orangeville to meet setback requirements. But it failed to seek a variance for White’s cabin because the company failed to discern its existence and location – not because the structure wasn’t a dwelling, as the developer maintained.

“The upshot is with the apparent single exception of the petitioner’s cabin, the respondents neither intentionally or accidentally sited any windmills within 1,320 feet of any such cabins or seasonal residences,” NeMoyer wrote.

The issue boiled down to whether the cabin is a dwelling, and if the special use plan and variance were valid. NeMoyer ruled the cabin met the dwelling definition, and nullified the permit and site plan for the tower in question.

White is not a participant in the Stony Creek project. He and attorney Deborah J. Chadsey could not be immediately reached for comment Tuesday.

Stony Creek is a subsidiary of the Chicago-based Invenergy. The company plans to continue the project.

“Invenergy is disappointed in the outcome of the recent Article 78 proceeding regarding one of the 59 Stony Creek Wind Farm turbines,” said Eric Miller, Invenergy’s director of business development, in a statement. “However, we remain committed to moving forward with the project, and look forward to building another important source of clean, renewable energy for New York, and providing significant economic benefits to Orangeville and its residents.”

The state Public Service Commission approved the planned wind farm in December.

*******

ORANGEVILLE – What makes a dwelling?

The Jan. 4 decision by State Supreme Court Judge Patrick NeMoyer found that Robert White’s hunting cabin qualifies under town code.

The cabin’s located on White’s 81.5-acre property off Bantam Road. It’s a one-story structure of about 200 square feet and classified as a seasonal residence by the town assessor.

Attorneys for Stony Creek had argued the cabin isn’t a dwelling because it lacks basic amenities including plumbing and a certificate of occupancy. White and his attorney Deborah J. Chadsey maintained it has beds, cabinets, a dining table and cooking area, and that the family spends three or four months per year there.

NeMoyer ruled in favor of White, saying the cabin fits within the town definition: a dwelling or building designed or used by one or more families, with a few exceptions such as hotels and travel trailers.

URL to article:  https://www.wind-watch.org/news/2012/01/11/judge-rules-out-wind-tower-near-orangeville-cabin/