The Planning Board issued a special use permit to petitioner on July 11, 2011, allowing it to construct a wind farm. Respondent notified petitioner that its permit would “expire if construction has not commenced within a year of [respondent’s] approval.” On June 11, 2012, respondent extended the deadline “until the earlier of” one year or 90 days after the “conclusion of the” lawsuit commenced against the Town by a citizens’ group, Concerned Citizens of Cattaraugus County (CCCC), which opposed the project. By letter dated August 3, 2012, petitioner advised the Town that it was “considering use of alternate turbine models” for the project. Petitioner thereafter requested a second extension of the special use permit, but the Planning Board denied that request during its October 15, 2012 meeting.
The court held that there was a material change in circumstances since the special use permit had been issued. When the special use permit was granted, petitioner contemplated the use of Nordex N1000 turbines. It is undisputed that, by the time petitioner requested its second extension of the permit, petitioner proposed using alternate turbine models. Therefore, the court found that the Planning Board’s refusal to extend the special use permit for a second time was not arbitrary or capricious.
Allegany Wind LLC v Planning Board of Allegany, 2014 WL 1099718 (NYAD 4 Dep. 3/21/2014)
The opinion can be accessed at: http://www.nycourts.gov/courts/ad4/Clerk/Decisions/2014/03-21-14/PDF/1324.pdf