Posted by: Patricia Salkin | February 4, 2009

Wind Turbine Law Invalidated for Failure to Comply with SEQRA

In November, I posted a case where the court invalidated the Town of Centerville’s  local law on wind turbine siting for failure to take the required hard look under the State Environmental Quality Review Act.  In a similar case, the Monroe County Supreme Court has invalidated the Town of Hamlin (NY) wind turbine law due to an improper Negative Declaration under SEQRA.  The Court concluded that even though the Board identified “the relevant areas of environmental concern” in arriving at it Determination of Non-Significance/Negative Declaration, the Board did not take a “hard look” at them, nor did the Board set forth a “reasoned elaboration” for its determination. Moreover, the Court disagrees with respondent’s characterization that the wind facilities that were allowed prior to the enactment of Local Wind Law 3-2008 are public utilities.”

 

 The petitioners appear to have been concerned about proposed setback and noise standards.  The Court ruled that it is not appropriate to issue a negative declaration based merely on the fact that the new law is more restrictive than existing law (which does not set forth any set standards); or that the zoning law does not constitute a decision on a specific wind turbine application.  Although the decision is not clear on this, another apparent defect in process was treating action as Unlisted Action, when the SEQRA regulations define Type I action as including change in permissible uses for 25 or more acres of land. 

 

 Hamlin Preservation Group v. Town Board of the Town of Hamlin, Index No. 2008/11217 (Monroe County Supreme Court, Jan. 5, 2009)

 

 The decision can be accessed at: http://www.windaction.org/documents/19467

 

 For a new clippings see:  http://www.windaction.org/news/19477   http://www.democratandchronicle.com/apps/pbcs.dll/article?AID=/200901121125/NEWS01/90112010 

http://rochesterhomepage.net/content/fulltext/?cid=59331  

 Read a summary from the Wind Power Blog here.

 

 Special thanks to Thomas J. Warth, Esq. of Hiscock & Barclay, LLP in Rochester, NY for bringing this case to my attention.

 

 


Responses

  1. It is tragic that the local lawmakers failed to provide the necessary data to prevent a new use since that information IS available. But what is really tragic is that NY put the burden of proof of efficacy of the technology on the township (or “town”) instead of on the wind energy developer.

    It is always unfruitful to complain about nuisances of clean, renewable energy sources since traditional generation technologies have a much more egregious historical record (the devil you know vs. the devil you don’t). The only way to effectively combat land-hogging wind energy is to show how little it produces per acre of impact and that it produces on such a sporadic basis that it does little or nothing to offset the CO2 emissions of coal burning.

    The landscape impact per capacity credit unit is over 1,000 times as great as any other generation source. This is easy math that can be done from any regional grid operator’s production records and the application of a statistical formula for capacity credit to them.

    A national unified effort is required to do battle with the likes of GE, Siemens, AEP, FPL, et al. Town by down, the skyline is doomed to thousands of under performing monuments to the Goracle.


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