Case update report

2008 WL 258165 (N.Y.A.D. 2 Dept.)

849 N.Y.S.2d 129 (3d Dept. 2008).

Petitioners claimed that the setback requirements amounted to a de facto taking. The court held that the setback requirements did not amount to a de facto taking because they did not place any restrictions upon property owners who do not consent to having wind turbine generators on their property. The Court cited Cities Serv. Oil Co. v. City of New York, 5 N.Y.2d 110,117 (1958), which held that ‘acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking with the meaning of the constitutional provision.’

Petitioners contended that SCIDA was not the proper lead agency for purposes of SEQRA review, but the court held that this contention was without merit. Industrial development agencies have statutory authority to provide financial assistance to projects for the benefit of their jurisdiction. Where an industrial development agency notifies other involved agencies of intent to serve as lead agency and no interested agency objects, and the record establishes that, prior to assuming the status of lead agency, SCIDA notified the other involved agencies and received no objection. Though SCIDA cannot fund a project occurring partially outside Steuben County without the consent of other involved municipalities, failure to obtain consent before SEQRA review begins does not affect status as lead agency because all conditions precedent to funding be met before an agency assumes status of lead agency.

The Court held that SCIDA conducted adequate SEQRA review. After “reviewing whether the determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion,”¹ the Court found that SCIDA took the requisite “hard look” in approving the final generic environmental impact statement.

847 N.Y.S.2d 450 (2007)

With respect to the investigation of proposed alternatives, the Court must ensure that the lead agency has satisfied substantive and procedural requirements of SEQRA and its regulations. In order for alternatives to be meaningful, any choice among alternatives must be based on an awareness of all reasonable options. Court found that boards failed to consider all reasonable options because they failed to evaluate possible alternative involving fewer or shorter turbines, the phasing in of turbines, the location of turbines. Boards also didn’t provide the level of detail necessary to permit comparable assessment of those alternatives (nothing showed that a project of a different scale was infeasible).

The Supreme Court held that granting the special use permits was arbitrary and capricious because the towns deferred mitigation issues until the completion of SEQRA process, which denied petitioners and other members of public their intended input with respect to whether such analysis and mitigation is appropriate and acceptable (specifically addressing historic preservation, noise, and avian impacts).

The Supreme Court also held that by improperly relying on plans for future mitigation and assigning those duties to other agencies such as the public service commission and Office of Parks Recreation and Historic Preservation, the board failed to take requisite hard look at an area of environmental concerns.