Allegany Wind LLC v. Planning Bd. of Town of Allegany

• Decision Date: 21 March 2014
• Citation: 115 A.D.3d 1268,982 N.Y.S.2d 278,2014 N.Y. Slip Op. 01944
• Parties: In the Matter of ALLEGANY WIND LLC, Petitioner–Appellant, v. PLANNING BOARD OF TOWN OF ALLEGANY, Respondent–Respondent.
• Court: New York Supreme Court — Appellate Division

115 A.D.3d 1268
982 N.Y.S.2d 278
2014 N.Y. Slip Op. 01944

In the Matter of ALLEGANY WIND LLC, Petitioner–Appellant,
v.
PLANNING BOARD OF TOWN OF ALLEGANY, Respondent–Respondent.

Supreme Court, Appellate Division, Fourth Department, New York.

March 21, 2014.

[982 N.Y.S.2d 279]

Young/Sommer LLC, Albany (J. Michael Naughton of Counsel), for Petitioner–Appellant.

Hodgson Russ LLP, Buffalo (Daniel A. Spitzer of Counsel), for Respondent–Respondent.

PRESENT: SMITH, J.P., FAHEY, LINDLEY, VALENTINO, AND WHALEN, JJ.

MEMORANDUM:

Petitioner commenced this CPLR article 78 proceeding to challenge respondent's denial of its request for a second one-year extension of a special use permit and site plan approval previously issued to petitioner for its proposed 29–turbine wind farm (hereafter, project) in the Town of Allegany (Town). Supreme Court properly dismissed the petition. We reject petitioner's contention that the denial by respondent of its request for an extension of the special use permit was arbitrary and capricious. As a general rule, where a party applies for an extension of a special use permit previously issued, the applicant “must be afforded an opportunity to show that circumstances have not changed, and a denial of extension will only be sustained if proof of such circumstances is lacking” (Patricia E. Salkin, 2 New York Zoning Law & Practice § 29:34; see generally Matter of Dil–Hill Realty Corp., 53 A.D.2d 263, 267, 385 N.Y.S.2d 324). Moreover, “[a] board has substantial discretion in dealing with requests for an extension of a durational limitation” (Terry Rice, 2005–2006 Survey of New York Law, Zoning Law, 57 Syracuse L. Rev. 1455, 1470;see generally 420 Tenants Corp. v. EBM Long Beach, LLC, 41 A.D.3d 641, 643, 838 N.Y.S.2d 649). A board may not, however, “base its determination on ‘generalized community objections'

[982 N.Y.S.2d 280]

” (Matter of Metro Enviro Transfer, LLC v. Village of Croton–on–Hudson, 5 N.Y.3d 236, 240, 800 N.Y.S.2d 535, 833 N.E.2d 1210;see Matter of Constantino v. Moline, 4 A.D.3d 820, 821, 771 N.Y.S.2d 427).

Here, respondent issued a special use permit to petitioner on July 11, 2011, allowing it to construct the 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...