New York State has intervened on behalf of a greenhouse owner’s fight to install a 13-story wind turbine on its Clarence property. And now the town is planning to challenge the state about it in court.
Earlier this month, the state Department of Agriculture and Markets reversed the town Zoning Board of Appeals April decision denying Thompson Brothers Greenhouse – at 8850 Clarence Center Road – a variance to the town’s height restriction of 60 feet for a turbine 133.5 feet tall.
Now the town is challenging the reversal and has retained the law firm Jaeckle, Fleischmann & Mugel to defend the town’s stance that Thompson Brothers shouldn’t be allowed a turbine that tall.
“Essentially, we will have to challenge the Agriculture and Markets decision,” Town Attorney Lawrence Meckler said. “They have decided the action taken by the Zoning Board of Appeals was not proper and therefore we should allow Thompson Brothers to put up the wind turbine. So now we have until July 31 to file an Article 78 against the state in Albany challenging the order.”
An Article 78 proceeding is used to appeal the decision of a New York State or local agency to the New York courts. Thompson Brothers Greenhouse is in an agricultural zone, which is why the Department of Agriculture and Markets has jurisdiction over it. However, the Thompson Brothers plot is surrounded by residential neighborhoods whose residents have been very vocal in opposition to the turbine.
The ZBA denied Thompson Brothers’ application for the turbine, citing the dense residential community surrounding the greenhouse property; the detrimental impacts the turbine could have on nearby properties, including property values; the availability of other options such as solar panels or smaller turbines; and the excessive height of the structure. It finally noted that Thompson Brothers had created the difficulty by selling the greenhouse’s surrounding property to residential developers.
“We feel what [the state Department of Agriculture and Markets has] done is beyond their authority and that the Zoning Board of Appeals rendered a legitimate decision, so we’re going to challenge their order,” Meckler said. “The big thing is we’re going to fight it.”
Supervisor Dave Hartzell said he receives calls about the turbine from residents near Thompson Brothers on a daily basis.
Clarence is currently contemplating amending town code to allow for turbines up to 80 feet in height with an additional 15-foot allowance for blade height. The proposal has received the Planning Board’s recommendation, and a public hearing was held on the issue during the July 8 Town Board meeting, but no action was taken.
The change is being driven by the ZBA, which has received multiple requests for turbine variances to the Satellite, Antennas and Towers local law by agricultural property owners and has no formal basis in the law to guide decision making.
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