Beekmantown neighbors association loses appeal

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.

New York and U.S. wind industry news

Beekmantown examining wind law

According to the Press Republican, the Town of Beekmantown (Clinton County) received negative comments from the Clinton County Planning Department regarding its proposed wind energy conversion systems (WECS) regulations and so has extended a wind development moratorium. The proposal had been modeled after the town’s wireless telecommunications facilities siting law.

Enfield negotiations with wind developer continue

The July 5 Ithaca Journal reports on continuing negotiations between the Town of Enfield (Tompkins County) and wind developer John Rancich. One sticky issue is whether a deal will be struck prior to Enfield passing a WECS law.

Hanover considering new wind law

The July 7 Observer reports that the Town of Hanover (Chautauqua County) is considering a WECS law, in anticipation of a Noble Environmental Power’s Ball Hill wind project.

Lackawanna Schools and Steel Winds

Buffalo Business First reports July 4 on the apparent controversy resulting from payments, or lack thereof, to the City of Lackawanna school district from BQ Energy, developer of the Steel Winds wind project.

Niagara Falls Considering Wind

The Niagara Gazette reports July 6 on the attempt by Empire State Wind to site a project in Niagara Falls. Niagara Falls mayor Paul Dyster is quoted mentioning the importance of public input.

Spafford considering wind law

WSYR-TV reports July 3 and online on the efforts by the Town of Spafford (Onondaga County) to regulate relatively small WECS.

Wind Turbine Recycling

Renewable Energy World has an interesting article on the recycling of wind turbines and the efforts of a Massachusetts company, Aeronautica Windpwer, to do just that. Per the article,

According to the company’s industry research, over 10,000 machines that were installed during the mid ‘80s and ‘90s may soon be replaced by larger, more modern turbines. That’s a lot of generation capacity that would otherwise be scrapped.