Wind developers scored an important victory in New York’s appellate courts.
The West Beekmantown Neighborhood Association lost an appeal of an August 2007 lower court (N.Y. Supreme Court in Clinton County) decision that had dismissed the Association’s complaint against the town’s Zoning Board of Appeals (ZBA). The Association challenged the ZBA’s grant to Windhorse Power LLC of a conditional use permit to develop a 700 acre wind farm and its negative declaration under New York’s State Environmental Quality Review Act (SEQRA). The 19.5 megawatt project is Number 204A in the New York Independent System Operator (NYISO) queue.
In In re West Beekmantown Neighborhood Assn v. ZBA of Town of Beekmantown (2008 NY Slip Op 6407) (July 24, 2008), the Appellate Division of New York’s Third Judicial Department affirmed the lower court’s decision.
In a decision important for wind developers, the court found that the ZBA reasonably concluded that Windhorse project was an essential service under the town’s zoning law. The Association had argued that because Windhorse was not a “public utility” (or a municipal agency), and only public utilities (or municipal agencies) provide essential services, the wind farm could not therefore be construed as an essential service. While not going so far to say that wind farms are by definition essential services, the court nevertheless indicated that
it is undisputed that the wind turbines that Windhorse intends to construct will generate energy, a useful public service, and will be subjected to regulation and supervision by the [New York State] Public Service Commission[.]
The court cited a case, In re Cellular Tel. Co. v. Rosenberg, 82 NY2d 364 (1993), which recognized that wireless telecommunications service providers may benefit from the public utility classification. The issue is critical to utilities developers as public utilities may be subjected to reduced local zoning requirements. The case establishes precedent, in the appellate division that oversees some of New York’s windiest territory, for the assertion that windfarms provide essential services and that wind developers may be considered public utilities.
The court also found that the ZBA had adequately complied with the requisite SEQRA steps. Readers of this blog will recall that not following the SEQRA steps transparently can get towns and developers into judicial trouble, and allegations thereof may produce Attorney General investigations. A claim regarding the ZBA’s composition was dismissed by the court as meritless.