Matter of West Beekmantown Neighborhood Association, Inc. v. Zoning Board of Appeals of the Town of Beekmantown

• Decision Date: 24 July 2008
• Docket Number: No. 503704,503704
• Citation: 861 N.Y.S.2d 864,2008 NY Slip Op 6407,53 A.D.3d 954
• Parties: In the Matter of WEST BEEKMANTOWN NEIGHBORHOOD ASSOCIATION, INC., et al., Appellants, v. ZONING BOARD OF APPEALS OF THE TOWN OF BEEKMANTOWN et al., Respondents.
• Court: New York Supreme Court — Appellate Division

53 A.D.3d 954

861 N.Y.S.2d 864

2008 NY Slip Op 6407

In the Matter of WEST BEEKMANTOWN NEIGHBORHOOD ASSOCIATION, INC., et al., Appellants, v. ZONING BOARD OF APPEALS OF THE TOWN OF BEEKMANTOWN et al., Respondents.

No. 503704

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided July 24, 2008.

Appeal from a judgment of the Supreme Court (Dawson, J.), entered August 23, 2007 in Clinton County, which dismissed petitioners' application, in a combined proceeding pursuant to CPLR article 78 and action for a declaratory judgment, to, among other things, review a determination of respondent Zoning Board of Appeals of the Town of Beekmantown approving the application of respondent Windhorse Power, LLC for a conditional use permit.

Malone Jr., J.

Petitioners commenced this combined proceeding pursuant to CPLR article 78 and action for a declaratory judgment challenging the determination of respondent Zoning Board of Appeals of the Town of Beekmantown (hereinafter ZBA) to grant a conditional use permit to respondent Windhorse Power, LLC to construct a wind farm on a 700-acre parcel located in the Town of Beekmantown, Clinton County. Petitioners primarily contended that the ZBA erroneously determined that Windhorse was entitled to a conditional use permit as a public utility providing an essential service, as defined by the Town Zoning Law, and that the ZBA failed to conduct an adequate review of the application pursuant to the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]). Supreme Court dismissed the petition, prompting this appeal.^*

Petitioners contend that the ZBA's issuance of a negative declaration and subsequent grant of the conditional use permit was improper because the determination that the proposed wind farm constituted an essential service as defined by the Town Zoning Law was arbitrary and capricious. The proposed wind farm site is located in an area zoned R-2 residential pursuant to the Town Zoning Law. In such zone, a conditional use permit is required for an essential service, which is defined, as is relevant here, as the "[e]rection, construction, alteration, operation or maintenance by municipal agencies or public utilities of ... electrical or gas substations ... and similar facilities that provide essential use and services, an [sic] general (unidentified) public has a legal right to demand and receive" (Town of Beekmantown Zoning Law art 2). According to petitioners, Windhorse is neither a municipal agency nor a public utility and, thus, the proposed wind farm cannot constitute an essential service.

While "public utility" is not defined by the zoning law at issue, it is undisputed that the wind turbines that Windhorse intends to construct will generate energy, a useful public service, and will be subjected to regulation and supervision by the Public Service Commission (see Public Service Law § 2 [2-b], [12], [23]; § 5 [1] [b]; § 66-c; see also Matter of Cellular Tel. Co. v Rosenberg, 82 NY2d 364, 371 [1993]). The ZBA's interpretation of the Town Zoning Law is entitled to great deference and, inasmuch as petitioners have not shown that the determination that Windhorse is a public utility for zoning law purposes is unreasonable or not rationally based, it will not be disturbed (see Matter of Frishman v Schmidt, 61 NY2d 823, 825 [1984]; Matter of Sacandaga Park Civic Assn. v Zoning Bd. of Appeals of Town of Northampton, 296 AD2d 807, 808 [2002]; Matter of Payne v Taylor, 178 AD2d 979, 979 [1991]; see also Matter of Mammina v Zoning Bd. of Appeals of Town of Cortlandt, 110 Misc 2d 534, 537 [1981]).

Petitioners also contend that the ZBA failed to conduct an adequate SEQRA review and, consequently, its issuance of a negative declaration was arbitrary and capricious. This Court's review of the ZBA's issuance of a negative declaration is limited to ascertaining whether the ZBA "identified the relevant areas of environmental concern, took a `hard look' at them, and made a `reasoned elaboration' of the basis for its determination" (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417 [1986], quoting Aldrich v Pattison, 107 AD2d 258, 265 [1985]; accord Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d 306, 318 [2006]). Here, the ZBA engaged in a lengthy SEQRA review process that involved hiring an outside consulting firm (see Town Law § 267-a [3]). It considered the various environmental impact studies submitted by Windhorse, such as visual impact, noise impact, cultural resources, erosion control, effects on flora...