Appeals court upholds wind farm as public utility determination

In a decision of considerable importance for wind developers in New York state, an appellate court upheld a determination by a local Zoning Board of Appeals that wind turbines are utilities under a town’s local zoning provisions. That brings to two the number of New York’s four judicial departments in which intermediate appeals courts have found compelling a local determination that wind farms may be considered public utilities.  Generally speaking, public utilities enjoy relaxed requirements under local zoning.

St. Lawrence Windpower, LLC applied to the Town of Cape Vincent Planning Board for site plan approval for its proposed construction of a series of wind-powered generators (project) on property designated as an “Agricultural Residential District.”  During the zoning process, the ZBA had determined that  wind turbines qualified as a utility and that the project therefore was a permitted site plan use in that district.

Local residents challenged the determination in an Article 78 proceeding. The trial court dismissed the challenge and the residents appealed.

The appeals court indicated that pursuant to section 315 of the Town of Cape Vincent Zoning Law, utilities are defined as “telephone dial equipment centers, electrical or gas substations, water treatment or storage facilities, pumping stations and similar facilities” that have been constructed or maintained by municipal agencies or public utilities.  The court concluded

that the classification by the ZBA of the series of wind-powered generators as a utility within the meaning of section 315 of its Zoning Law is neither irrational nor unreasonable, and that the determination is supported by substantial evidence.

The court approvingly cited a July 2008 appellate decision from New York’s Third Judicial Department, reported in this blog here.  As in that case, involving Beekmantown wind development, the appellate court cited to the seminal 1993 Court of Appeals case, Matter of Cellular Tel. Co. v Rosenberg, 82 NY2d 364 (1993).

The case is In Re WIND POWER ETHICS GROUP (WPEG) v ZONING BOARD OF APPEALS OF TOWN OF CAPE VINCENT (N.Y. 4th APP. DIV., March 20, 2009) (2009 NY Slip Op 2016, 34 CA 07-01995)

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