CLAYTON – Officials involved in Cape Vincent’s standoff with BP Wind Energy argue it would be a risky gamble for the Clayton Town Council to approve its proposed law to ban industrial wind turbines outright.
They contend that if such a ban is in effect while Iberdrola Renewables goes through the required Article 10 siting process for its Horse Creek wind project centered in south Clayton, the state Public Service Commission could trump Clayton by deciding the law is unreasonable – backing the town into a desperate situation.
They argue that Cape Vincent’s decade-long wind battle with BP, which abandoned its effort in 2014, illustrates that the development of a strong zoning law is the most effective ammunition against wind projects.
People divided into two camps are expected to weigh in on Clayton’s proposed local law during a public hearing held by the Town Council at 6 p.m. Wednesday at the Clayton Opera House.
One camp is expected to support the board’s proposal by arguing that banning turbines is justified because the machines – more than 600 feet tall in Iberdrola’s case – would scar the region’s natural beauty and threaten its tourism-based economy. The other camp – of the same mind as Cape Vincent officials who led the effort against BP – is expected to argue that while the board’s proposed ban might be well-intentioned, stiffening existing regulations would give it greater strength in a state Article 10 review.
Town resident Cindy L. Grant said she has organized a group of people who plan to knock on doors of more than 100 homes in the Depauville area to rally support for the turbine ban.
“I’m not going to spend my time trying to second-guess what the board is doing,” she said Thursday.
At its March 9 meeting, the board introduced drafts of the local wind law and a related proposal that would amend the town’s zoning ordinance by removing the wind overlay district in the town’s southern end, where Iberdrola is planning its project. Turbines are currently permitted within that district if they comply with regulations.
Board members will not take any action at Wednesday’s public hearing. Town Supervisor David Storandt Jr. has said the board could consider approving the proposals as early as its April 6 meeting.
LESSONS FROM BP STANDOFF
Cape Vincent Planning Board Chairman Robert S. Brown was chairman of the committee that rewrote the town’s 1998 zoning law in 2012, when it was critical to have regulations in place before BP submitted its project application to a state siting board. Rather than approve a wind law, which Clayton did in 2007, Cape Vincent officials decided to address wind turbines in the amended zoning law.
At the time, Mr. Brown said, officials decided it was important for turbine regulations in the zoning law to be akin to those for other tall structures, such as water towers. When PSC officials review projects under Article 10, he said, they can override local laws that are considered to be unreasonably restrictive. That’s why it would be risky, he contended, to approve wind laws that restrict or ban wind turbines.
“There’s a big risk of doing that because they could say your law is arbitrary and capricious,” Mr. Brown said. “If you don’t allow turbines under any circumstance, then you’re penalizing someone who wants to do it.”
Rather than trying to ban turbines, Mr. Brown contended, Clayton should follow Cape Vincent’s lead by amending its zoning law to allow turbines in a “controlled manner,” restricting them from being placed in certain areas. The town’s zoning law, for example, requires industrial turbines to be located at least 1 1/4 mile from schools, hamlets and the village of Cape Vincent. And for safety reasons, a formula in the law requires turbines to be set back from homes by at least six times the turbine height.
“If you’re talking about 600-foot turbines, that’s 3,600 feet,” he said, adding that setback requirements made it difficult for BP to find room for turbines.
Although BP challenged Cape Vincent’s zoning law during the Article 10 review, he said, the PSC decided not to override it.
“BP asked them to throw it aside early in the process, and they didn’t do it. The assumption is they decided it was valid,” said Mr. Brown, who has done zoning-related work for municipalities since 1973, when he got his start in Bern Township, Pa.
In 2014, Mr. Brown co-chaired a committee that amended Cape Vincent’s 2012 zoning law, but no substantial changes were made. The section on industrial wind projects starts on page 64 of the law, which is available at wdt.me/cape-zoning.
WAIVING A LOCAL LAW
In 2012, the New York State Board on Electric Generation and Siting and the Environment approved final rules and regulations for the Article 10 siting process. A memorandum and resolution was approved in March 2012 by the board as guidance for the adoption of rules, and it includes an insightful commentary about the PSC’s authority to waive local laws.
The document states that unless a “local ordinance is found to be unreasonably burdensome, the Siting Board itself applies the ordinance.” While an applicant can make the case for the PSC to waive a local law, its request would likely need to be supported by evidence from litigation in court.
“Some stakeholders requested that the determination of the Siting Board regarding the override of local laws be provided early on in the Article 10 process,” the document states. “They claimed that expending resources on intricate applications would be a waste without early assurance that the Siting Board would waive a local law that would preclude the project … But “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.”
‘A LOT OF HEAT’
Former Cape Vincent town Councilman John L. Byrne III said the board “took a lot of heat from both sides of the equation” when it decided to rewrite the zoning law in 2012 to account for wind turbines.
“We had folks telling us we had to absolutely go out and ban wind development and others saying we had to do what BP said,” Mr. Byrne said. “In our mind, we wanted to allow development while protecting existing assets. We didn’t give the developer exactly what it wanted, but it left room in the zoning law to allow some development. We felt it was a fair compromise to both extremes.”
Cape Vincent Town Supervisor Debra J. Suller, who was part of the committee that rewrote the zoning law in 2012, contended that Clayton would be ill-advised to ban wind turbines. She said it should consider developing a zoning law similar to Cape Vincent’s.
“We put a lot of money and effort into the zoning law and hired consultants,” she said. “I’m afraid that banning them is what wind companies want so they can say it’s unreasonable.”
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