Legal Commentary

making wind farms eco-friendly neighbors

By David A. Giacalone

.. Wind power is a popular and growing source of “green” and clean energy.  Back in the summer, we wrote about New York Attorney General Andrew Cuomo trying to assure that the process of getting wind-turbine “farms” approved by towns and villages is also clean — free of conflicts of interests, dirty tricks, and anticompetitive practices.  See this post on the launching of a statewide investigation, and this one on a voluntary Code of Conduct.

Lawyer Arthur J. Giacalone (who finally has a small website) is my brother (as well as my haiga collaborator). Due to the nature of his law practice, I’ve been more aware than many proponents of Green Energy that large industrial-scale “wind farms” are often not good neighbors. Art’s zoning-development law practice has long focused on helping residents protect their quality of life, property values and community character.  More and more over the past decade, homeowners have come to him deeply concerned over proposed wind farms in their towns, villages and rural communities. Arthur has been working hard on their behalf — with some wins and some losses — to help assure that law makers and public officials use their planning and development powers to require large-scale wind farms to be eco-friendly neighbors.  As Art says at his website:

They may be touted as “green and clean,” but inappropriate siting of industrial-scale wind turbines can adversely impact the health of nearby residents (”wind turbine syndrome”), the community’s rural character, and the value of properties within the towers’ viewshed.

Last week, Art had a well-deserved victory in the case of Hamlin Preservation Group v. Town Board of the Town of Hamlin (NYS Sup. Ct. for Monroe County; Index No. 2008/11217).  In a decision dated January 5, 2009, the Hon. David Michael Barry ?set aside and annulled? The Wind Energy Law adopted in April 2008 by the Monroe County Town of Hamlin.  Judge Barry said that the Town Board violated the requirements of the State Environmental Quality Review Act (SEQRA) when it neither took a ?hard look? at the relevant areas of environmental concern, nor set forth a ?reasoned elaboration? for its determination that the wind energy law would not have a significant impact on the environment.  See “Hamlin wind power decision blown down in court” (Rochester Democrat & Chronicle, Janl 12, 2009).

The facts are instructive. As Art explained in a press release last weekend:

The wind law nullified by the court would have allowed construction of 400-foot- tall wind turbines within 600 feet of property lines and public roads and 1,200 feet of residences.  In adopting the local law, the Hamlin Town Board chose to ignore the recommendations of the town’s Wind Tower Committee for 1,500-foot setbacks from roads and property lines, and 2,640-foot [half-mile] setbacks from residents.  The Town Board also disregarded the WTC’s recommended noise standards intended to protect the health and wellbeing of nearby residents.

The Board had argued (rather lamely, methinks) that it didn’t have to explain its conclusion that there would be no environmental impact, because its legislation only imposed restrictions and did not actually allow any specific project.

As my brother knows, I’ve always been a bit worried about the NIMBY phenomenom.  With all its open space and wind potential, I believe it should be possible for New York to play an important part in achieving our national goal of developing green energy and moving toward energy independence, while helping with needed economic development.  But, I’m also convinced (again, because of all that space) that large-scale wind production can and should be done in a way that minimizes or eliminates environmental damage to the surrounding communities — and thereby eliminates opposition from reasonable people acting in good faith.  Art is right when he argues:

“If a town chooses to allow, rather than prohibit, industrial-scale wind development, it must, at a minimum,  protect its residents’ health, maintain the town’s rural character, and preserve property values by  establishing meaningful setback requirements and noise standards.”

According to the Rochester Democrat & Chronicle, Hamlin Town officials want to move quickly to put a new law on the books. (See “Hamlin to consider new wind power laws,” Jan. 13, 2009)  Let’s hope this time they listen to their own Wind Town Committee and other experts who have come up with workable standards to make windfarms good (if a bit standoffish) neighbors.

For more on these issues, see:

• ?Frequently Asked Legal Questions About Wind Farms? (by Arthur J. Giacalone, orig. pub. The Daily Record, Rochester, NY, June 30, 2005); and Art’s seminar outline “Zoning Challenges: Overcoming Obstacles.”
• the “wind turbine syndrome” website
• National Wind Watch, a strong opponent of wind power, which offers a brochure brochure detailing alleged adverse effects from industrial wind power

p.s. Just a little bit of haiku on the frigid winter night:

withering wind?
the scarecrow?s jacket
fits

? by ed markwoski

the narrow place
between my neck and my collar
November wind

. . . by DeVar Dahl - A Piece of Egg Shell, Snapshot Press Haiku Calendar 2003

sudden blast of wind -
borrowing the snowman’s
hat and gloves

… dagosan

Full post as published by f/k/a . . . on January 16, 2009 (boomark / email).