Cape Vincent ~ Appeals court upholds turbine ruling

Watertown Daily Times | Appeals court upholds turbine ruling

CAPE VINCENT SUIT: Judge says town Zoning Board of Appeals was correct in classifying units as utilities
By BRIAN KELLY
TIMES STAFF WRITER
SUNDAY, MARCH 22, 2009

CAPE VINCENT — A state appellate court has unanimously upheld a lower court's ruling that the town of Cape Vincent can classify industrial wind turbines as utilities.

The Wind Power Ethics Group, a citizens organization that opposes large-scale wind power development, brought an Article 78 suit in state Supreme Court in March 2007 against the town's Zoning Board of Appeals, claiming it incorrectly classified the turbines as utilities.

Judge Hugh A. Gilbert dismissed the petition in August 2007, ruling the classification was correct under existing zoning law. The group appealed the decision in September 2007 to the state Appellate Division, Fourth Department.

The group also asked Judge Gilbert to allow three documents that were not part of the lower court's administrative record to be included in the record of appeal, but the judge denied the request in June 2008. The group appealed that decision about a week later.
In decisions released Friday, the appellate court affirmed both of Judge Gilbert's decisions. The court rejected the group's contention that the ZBA's determination that turbines could be classified as utilities was, among other things, arbitrary and illegal.

The court ruled that the ZBA was entitled to define what it considers utilities under its zoning laws, that its classification of turbines as utilities was "neither irrational nor unreasonable, and that the determination is supported by substantial evidence."

The court did not consider the group's contention that the ZBA should have referred an application for a proposed turbine project by St. Lawrence Windpower LLC to the Jefferson County Planning Board, stating the issued was raised for the first time in the group's reply papers "and thus is not properly before us."

The court also rejected the group's contention that the lower court erred by not allowing the three documents the group wanted included in the appeal. The disputed documents were a draft of local town law dated June 28, 2006, a 2003 joint comprehensive plan and the Aug. 28, 2006, meeting minutes of the town board.

The appellate court ruled that because the documents were not included in the lower court's record "they were properly excluded from the record on appeal."