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)

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.