September 29, 2016
New York, Opinions

Don’t trample rights of localities

By Dennis C. Vacco, Commentary | Times Union | Wednesday, September 28, 2016 | www.timesunion.com

Gov. Andrew Cuomo and the Public Service Commission recently mandated that 50 percent of the state’s power be generated by renewable sources by the year 2030. This goal requires up to 370 industrial wind energy facilities to be built.

To achieve this goal, the governor urged the Legislature to enact Article 10 of the Public Service Law, which creates a “one stop” siting approval mechanism for energy projects controlled by Albany. The centralized control of project siting is good for alternative energy developers and downstate power consumers, but imposes significant hardships on upstate communities.

Article 10 wrongfully limits municipalities’ constitutional home rule power to protect the health, safety, and welfare of their residents. Wind and solar energy developers believe Article 10 strips municipalities of their control over land usage and zoning. My law firm, which represents the towns of Clayton (Jefferson County) and Somerset (Niagara County), is fighting to ensure the interests of local residents are not trampled by wealthy out-of-town developers. These tax credit fueled developers build projects to benefit investors, but generate few if any local jobs.

The challenge faced by small upstate municipalities is that Article 10 seemingly gives an Albany-based siting board the power to decide where 700-foot tall wind turbines can be placed. Wind turbine developers believe the siting board can subvert the will of local communities by completely ignoring local comprehensive planning and zoning laws. We disagree with this logic and further question the legality of the siting board’s ability to set aside local laws. Such central control also flies in the face of legal precedent. If towns in New York can ban fracking, why can’t they ban industrial wind energy production?

To make matters worse, the Public Service Commission agrees the siting board can disregard any local land use regulation upon a finding that the law is burdensome on the developer or rate payers. We do not dispute that the Legislature can preempt local laws in certain circumstances, but we don’t believe this authority can be delegated to an administrative siting board capable of voiding local laws on a case-by-case basis. If this is what the Legislature intended, it would represent an unprecedented and frightening delegation of its power to the executive branch.

The Legislature and the governor must act to amend Article 10 in a manner that acknowledges the role of home rule, and increases local representation on the state siting board. The debate is not about what role renewable energy sources should play regarding future energy consumption in our state. But as we advance towards those lofty goals, we should not be so quick to trample the traditional authority of local municipalities.

Dennis C. Vacco, of Boston in Erie County, is a former New York state attorney general. He is a partner in the law firm of Lippes Mathias Wexler Friedman.