Posted by: Patricia Salkin | January 27, 2010

Wind Energy Incentive Zones Law Upheld; Site Visit to Wind Farm Did Not Violate Open Meetings Law

In a case of first impression, a trial court judge in New York has upheld a local law rezoning two areas in a town as “Wind Energy Incentive Zones.”  In a protracted, and still ongoing battle over the siting of a commercial wind farm in the Town of Italy, the current decision involved both claims of violation of the State Open Meetings law, as well as a challenge to the Town’s authority to create wind energy incentive zones. 

The petitioner alleged that a February “outing” by three board members to view a nearby wind farm was a violation of the Open Meeting Law.  The Court found that the site visit was not a meeting and it was not an official convening of a public body for the purpose of conducting business.  In reaching this conclusion, the Court relied on the affidavits submitted by three board members who stated that they did not discuss their observations while they were present at the site, but rather waited until the next public meeting to share their views.  A second alleged violation of the Open Meetings was also dismissed.  This claim involved the scheduling of a special meeting  with less than one week notice and lack of publication of the notice in the newspaper as it typically required.  The Court concluded that since there was no time to post in the newspaper, the clerk took reasonable steps to post notice of the meeting on the Town Hall where meeting notices are always published.

With respect to the Wind Energy Incentive Zones, the Court noted that “The use of incentive zoning in the formulation of land use policies for wind farms is novel…” The Court further noted that the Town’s rationale that “because wind farms will have substantial adverse impacts on the Town, including noise, shadow flicker and visual aesthetic degradation, some of which cannot be fully or adequately mitigated, the Town should seek benefits from wind developers in exchange for allowing the siting of these farms in the Town of Italy.” The Court concluded that the incentive zoning was “a suitable balance of the existing and potential social, economic and environmental factors,” and that the Town did not violate SEQRA in the enactment of the local law since “The Town identified the relevant areas of concern, including noise, aesthetics, ice throw, decommissioning, and bird/bat kill.  It also educated itself on the ramifications of the proposed legislation; considered different courses of action and chose the course of action which it determined balanced the existing and potential social, economic and environmental factors.”  Lastly, the Court noted that the Town is not required, under law, to mitigate noise to the greatest extent possible.  

Finger Lakes Preservation Association v. Town Board Town of Italy, 887 N.Y.S.2d 499 (Sup. Ct. Yates Co., 10/8/2009).

For an article on Host Community Agreement for Wind Farm Development, see:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1410904


Responses

  1. Having some experience in analyzing the impacts and benefits of wind energy facilities, as well as working with local and state governments on wind energy development (ongoing), I find a conspicuous lack of evidence that the court’s rulings have made an attempt to absorb reasonably complete information about electricity generation and its derivation of value, nor any detailed analysis of the wind energy industry’s claims of net emissions avoidance. However, the court cites environmental, economic and social benefit as basis for its conclusions.

    My recommendation to the citizens of Italy would be to appeal the ruling on these grounds. Then focus on the work of Peter Lang, Kent Hawkins, CEPOS/Denmark, and The Institute for Energy Research, forcing the appellate court to competently evaluate the measurable proof of these general benefit claims in the public record. It is cautioned that studies and reports conducted by interested parties such as US DOE NREL and EERE should be derated by their bias.

    Crucial is the recognition of the service aspect of the electrical energy product/service bundle, which includes not only the product of volt-amps, but also the service of timely, reliable delivery of this product.

    Furthermore, the court should be required to recognize the power density of land use impact of wind energy facilities compared with other possible generation technologies such as nuclear power, natural gas and coal, with a sufficient radii from each tower used to reasonably retain the landscape character definition existing prior to the projects.

    Maintaining landscape character classification usually requires at least a 2500 ft. radius around each wind energy tower (further if towers are planned for ridge lines) unless the landscape character is reasonably defined as industrial prior to the wind project’s presence.

    Finally, power density of land should also be calculated based on the results of the timely and reliable delivery of product metric to create the most valid perspective.


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