Centerville, New York wind law invalidated

Summary of CENTERVILLE’S CONCERNED CITIZENS v TOWN BOARD OF TOWN OF CENTERVILLE (CA 08-00282, Memorandum and Order, 11/14/208)

The group “Centerville’s Concerned Citizens” won an appeal at the Appellate Divison of the Fourth Judicial Department and obtained the invalidation of a local law (Town of Centerville Local Law No. 1 of 2006) regulating the siting of wind energy facilities.

In promulgating the local law, the court found that the Town of Centerville (Allegany County) failed to follow appropriate procedure under New York’s State Environmental Quality Review Act (SEQRA).

At issue was whether the type of SEQRA action under consideration was unlisted, Type I, or Type II. The Town determined that it was an unlisted action, and used a short environmental assessment form to issue a “negative declaration”, that is, that the Local Law would not have a significant impact on the environment.

The appeals court indicated that the action under consideration (a local law affecting zoning issues in the entire town) squarely fell under one of the definitions of a Type I action (“the adoption of changes in the allowable uses within any zoning district, affecting 25 or more acres of the district”), and so a long environmental assessment form should have been completed. Because the short form was used, and not the long form, the SEQRA process was faulty. The faulty process negated the SEQRA process. Because the SEQRA process was null, the underlying Local Law was not appropriately promulgated.

The court thereby invalidated the law because of the faulty process. Strict compliance with SEQRA, the court indicated, is required.

Message to New York towns? Follow process. And what will happen now? One can imagine that the Town may pass a new (or even the same) local law, rigorously adhering to SEQRA process. Perhaps ironically, as a consequence of the court’s decision the town is left with no law in place, a situation that from the standpoint of plaintiffs is doubtfully beneficial. Noble Environmental Power is reportedly interested in developing a site in the town.

The brief decision in CENTERVILLE’S CONCERNED CITIZENS v TOWN BOARD OF TOWN OF CENTERVILLE may be found here.

Information on the decision may also be found in the Buffalo News, 11/18, and the Olean Times Herald 11/19

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