UPSTATE NEW YORK COURT CASE COULD EASE ZONING REQUIREMENT FOR DEVELOPERS OF WIND FARMS, ATTORNEY SAYS

UPSTATE NEW YORK COURT CASE COULD EASE ZONING REQUIREMENT FOR DEVELOPERS OF WIND FARMS, ATTORNEY SAYS

GARDEN CITY, N.Y. (Jan. 9, 2008) – A New York State appellate court decision could ease the way for developers of wind farms to obtain zoning permits, a leading zoning attorney said.

In the decision, the New York State Supreme Court Appellate Division, Third Judicial District, in Albany, ruled that a wind farm company is a public utility for zoning purposes.

“Wind developers scored an important victory in this appellate court decision,” said Keith P. Brown, a partner in the Garden City real estate law firm Brown & Altman LLP. “It changes the standard on which a application for a wind farm is judged. Wind farm developers will not necessarily be judged under the strict letter of zoning codes.” The ruling and New York’s goal of deriving 25 percent of its electricity from wind energy facilities and other renewable resources by 2013, “are positive signs for wind farm operators interested in doing business in the state,” Brown said.

The decision, handed down in July, upheld a ruling by the Beekmantown Zoning Board of Appeals that a wind farm is a public utility, A local civic group filed a Article 78 proceeding that challenged the ZBA’s grant of a conditional use permit to Windhorse Power LLC to develop a 700-acre wind farm and the ZBA’s negative declaration under New York’s State Environmental Quality Review Act (SEQRA). The appellate decision upheld a lower court decision in favor of the ZBA. The court found that the ZBA’s deciions was reasonable and rationally based.

While the ruling applies to only the Third Judicial District, which stretches from the Canadian border in the north to the lower Catskills in the south and from the Vermont and Massachusetts borders in the east to the Finger Lakes in the west–some of the windiest parts of the state, the ruling may apply elsewhere in the state, said Brown.

“This appellate court ruling can be used as a persuasive authority in applications made for wind farms in New York jurisdictions outside of the Third Department,” said Brown, an expert zoning and environmental lawyer.

The Appellate Division noted that although “public utility” is not defined in the local zoning law, the wind turbines proposed to be constructed will generate energy, which is a useful public service, and further, that such activity will be subjected to regulation and supervision by the New York State Public Service Commission.

Similar such rulings have been used in siting telecommunications facilities, Brown noted.

According the town’s zoning law, conditional use permits are required for essential services defined in part as, erection, construction, alteration, operation or maintenance by municipal agencies or public utilities of electrical or gas substations and similar facilities that provide essential use and services.

Brown & Altman, LLP offers a broad range of legal services to the real estate development industry. The firm concentrates on the complex field of commercial real estate law, including real estate transactions, leasing, financing, title, environmental, zoning, permitting and litigation. Brown & Altman is located at 585 Stewart Ave., Garden City, N.Y. 11530. The telephone number is (516) 222-0222 and the email address is
kbda@brownaltman.com

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