Posted by: Patricia Salkin | June 7, 2015

NY Appellate Court Reverses Court Below and Upholds Board’s Granting of Special Use Permit for Wind Turbines

Following the granting of a special use permit for the construction of six wind turbines, a neighbor appealed and the trial court reversed the planning board’s approval. The Appellate Court reversed the court below, first noting that the threshold for the granting of a special use permit is less than that for a use variance since a determination has already been made that uses subject to special permits are allowed in the district. The Court then noted that there are eight conditions set forth in the local land use ordinance for which detailed findings must be made by the Board prior to the issuance of a special use permit. It was not disputed that the Board’s findings for six of the eight conditions were based on substantial evidence. The two remaining conditions address location size and use of the structure so as to ensure harmony with the orderly development in the district and a finding that such use will not impair property values. The Court noted that the wind turbines are almost 500 feet tall when the rotor blades are fully vertical. The Board pointed out that the turbines are to be located in an area that already contains high voltage transmission lines, already significantly altering the viewshed, and the Board pointed to a study finding that the project would not impair the use of nearby properties. Lastly the Court noted it will not substitute its judgment for the Board’s whereas here, there was substantial evidence to support the granting of the special use permit.

Frigault v Town of Richmond Planning Board, 2015 WL 2401337 (NYAD 3 Dept. 5/21/2015)

The opinion can be accessed at: http://law.justia.com/cases/new-york/appellate-division-third-department/2015/518840.html


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