January 15, 2016
New York

Somerset introduces new wind power law

By Thomas J. Prohaska, News Niagara Reporter | The Buffalo News | January 14, 2016 | www.buffalonews.com

SOMERSET – Somerset Town Supervisor Daniel M. Engert’s proposed new law regulating wind power developments would require companies to pay property owners reimbursements if their property values fall because of the proximity of wind turbines.

It also would require a company to pay for a baseline health study of town residents before the turbines go up, and limits the areas in which turbines could be built.

Apex Clean Energy, which is planning a large wind development in Somerset and the neighboring Town of Yates, complained Thursday that the new law would be a sudden and unexpected change in the rules.

Apex has been working on the Somerset project since 2013, and Development Manager Taylor Quarles said the project was crafted with Somerset’s 2006 wind power law in mind.

“We are disappointed that the town is considering to change its ordinance now, shifting the rules of the game midstream, when we have been in conversations with them about this project for so long,” Quarles said.

“I think this local law will cause Apex to focus on the issues Somerset residents have raised,” Engert said. “I would not characterize the local law as being intended to discourage Apex.”

Quarles said, “Having just received this proposed new ordinance, we will need to thoroughly review it to understand the changes, and evaluate the intent of the new changes to see how it would impact the project.”

The 54-page law will be the subject of a public hearing before the Town Board on Feb. 1.

Apex is expected to file a formal application for state approval by June. It already has filed preliminary documents leading up to the final proposal, which will reveal exactly how many turbines will be sought and where they would be located. The company has leased several parcels of land in Somerset and Yates, and has said it might ask to erect as many as 70 turbines, each as much as 620 feet high, counting the length of the propeller blades. A siting board controlled by state officials has the final say.

Daniel E. Seaman, the veteran municipal attorney whose Lockport law firm created the proposed law, said he doesn’t believe the town faces a legal problem in making the legislation retroactive so it would apply to the Apex plan.

“This is a process the town embarked upon many months ago, prior to any pre-hearing application being filed,” Seaman said.

The state Public Service Law, which governs the wind power approval process, gives the Public Service Commission the authority to override any local or state law that creates an “unreasonable burden” on developers.

“This is uncharted legal territory,” Engert said, noting that Article X, the wind power section of the Public Service Law, never has been tested in court to determine what is unreasonable.

A baseline health study, in which residents would have the choice of participating, would provide assurances “that these developments would not affect their health,” Engert said.

The proposed law also says turbines must be at least 2,000 feet apart, at least 1,500 feet from any road or the boundary of any district zoned residential or from areas governed by the town’s Local Waterfront Revitalization Plan, which runs generally along the Lake Ontario shore. There is also a half-mile turbine exclusion zone around the borders of the Village of Barker.

Turbines would not be allowed in any residential or business zone, and must be positioned at least twice their height from any property line.

Also, the Town Board would have to determine that the project would not cause “unacceptable interference” to migratory birds or bats.