Appellate Division reverses Supreme Court decision, and allows Monticello Hills wind farm project to proceed in Otsego County NY
Posted on June 3, 2015
On May 21, 2015, the Appellate Division, Third Department issued a Decision in Frigault v. Town of Richfield Planning Board, ___ NYS3d ___, 2015 WL 2401337 [3d Dept. 2015], which found that the decision of the Planning Board of the Town of Richfield to issue a special use permit for a six turbine, 50,000 Megawatt (MWh), wind project was rational and supported by the record. This was the second challenge to the project that the Appellate Division reviewed. In a prior case, the court found that a second hearing was required due to the timing of a GML § 239-m referral to the County Planning Department in relation to the Board’s issuance of a negative declaration of significance under the State Environmental Quality Review Act. In the second case, the court found that the Planning Board’s findings, and issuance of a special use permit, were supported by the record. In doing so, the court implicitly rejected the project opponents’ “taking” theory. The project opponents alleged that the proximity of the proposed wind turbines to neighboring, vacant land rendered the adjoining property unusable. The lower court (Hon. Donald F. Cerio, Jr., presiding) was persuaded that approval of a project with turbines within 1,750 feet of adjoining property was a “taking” by “governmental action” without compensation. Although the Appellate Division did not address this theory in its Memorandum and Order, the court implicitly rejected the argument.
The court’s decision allows this community scale wind project to proceed. The project will generate enough energy for approximately 7,000 homes per year. The project was originally approved in November, 2011, but has been delayed by legal challenges.