The recently held Public Service Commission Public Hearing on the matter of Article X rules and regulations generated a lot of discussion by PSC and provided many answers to the comments made.
The PSC has released their 209 page memorandum and resolution which includes the final rules and regulations for Article X siting. I have extracted a few short paragraphs from the discussion section that pertain to the interests of JLL readers.
Discussion Regarding Zoning and Setbacks:
Regarding proposed minimum setbacks, they cite concerns about public health and safety, ice throw, tower collapses, blade fragmentation, shadow flicker, noise, infrasound, the preservation of property values, visual domination, and the preservation of land development potential. Discussion. We are satisfied that the regulations will elicit the appropriate amount of information needed at the application phase regarding setbacks. It is not clear how the wind developer that does not want to provide this information would have the Siting Board resolve setback issues. We will address setbacks within individual cases when we will have the benefit of a record tailored to the particular location.
Discussion Regarding the Waiver of Local Laws:
In regard to the request for an early determination of the waiver of local laws, Article 10 and the proposed regulations do not prohibit the Siting Board’s consideration of applicant requests to override local laws at a point early on in the Article 10 process. That being said, however, applicants should consider that often the facts necessary for the Siting Board to determine whether to waive a local law will require the development of a record. Specifically, Article 10 expressly recognizes the ability of municipalities to defend their local laws; therefore, it will be likely that some level of evidence and litigation regarding the issue will be necessary prior to the Board rendering a determination. (JLL note: The town of Hammond, NY just scored a legal victory when a judge ruled against leaseholders and the wind developer and in favor of Hammond’s local plan and zoning.)
Discussion Regarding the banning of wind:
As to the assertion that despite Article 10, municipalities remain free to limit the use of land by prohibiting certain types of power plants, or restricting the area in which they may be sited, without deciding anything we note that the analysis provided is not complete. The extractive mining law cited does not have a local override provision like Article 10. In addition, some uses such as the provision of a fair share of multi family housing cannot be outright prohibited by a municipality regardless of whether the entity doing the building has eminent domain powers. There is judicial precedent in New York that necessary public utility uses cannot be prohibited, and additional judicial precedent that what constitutes a utility use is rather broad.
Discussion Regarding Property Value Guarantees:
While property value guarantees could be offered voluntarily by an applicant, such a requirement being imposed by local law would appear to be a tax and it is not clear that there is municipal authority to impose such a tax or to transfer applicant money to the affected property owner, or that there is Siting Board jurisdiction over tax issues.
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