Opinion
42273
04-19-2010
Clear Skies over Orangeville, Petitioner, . v. Town Board of the Town of Orangeville, and SUSAN MAY, HANS BOXLER, JR., JAMES HERMAN, ANDREW FLINT, and TOM SCHABLOSKI, in their capacities as Town Board members, Respondents. and STONY CREEK ENERGY LLC, Proposed Intervener-Respondent
GARY A. ABRAHAM, ESQ., for Petitioner DAVID M. DiMATTEO, ESQ., for the Town of Orangeville respondents DANIEL A. SPITZER, ESQ., for Intervenor-Respondent Stony Creek Energy LLC
GARY A. ABRAHAM, ESQ., for Petitioner
DAVID M. DiMATTEO, ESQ., for the Town of Orangeville respondents
DANIEL A. SPITZER, ESQ., for Intervenor-Respondent Stony
Creek Energy LLC
Patrick H. NeMoyer, J.
Before this Court is a multi-pronged challenge by a citizens group, an unincorporated association named Clear Skies Over Orangeville (petitioner), to the September 23, 2009 enactment by the Town Board of the Town of Orangeville (respondents or the Town Board) of Local Law No. 2 of 2009, entitled "2009 Amendments to the Town of Orangeville Zoning Law and Official Zoning Map" (hereinafter the zoning amendments). Insofar as pertinent to this challenge, the zoning amendments, which constituted a complete revision of the Town's pre-existing zoning law (the 1964 law), include a new Article XI, Section 1116 in the Town's zoning law, provisions intended to govern prospective large-scale development of land within the Town for wind energy use (hereinafter wind development or wind farm[s]). By this Court's reading of it, the 1964 law (as amended in 2001) would have conditionally permitted some wind development within the Town, subject to provisions more restrictive than the recently enacted zoning amendments with respect to the permissible height of individual towers or windmills, but without many of the other restrictions and controls now enshrined in Section 1116. It was in response to the recent decade's flurry of wind development in immediately surrounding towns, and in further response to expressions of interest by wind developers in siting similar projects within the Town of Orangeville, that Town officials enacted Section 1116 thereby establishing wind development as a specially permitted use within the Town, more precisely within its low-density zoning districts, while comprehensively regulating such development.
The named respondents include the Town Board and its five individual members.
In general, Section 1116 would require every "wind energy conversion device" (or windmill) to be set back 500 feet from the next nearest windmill, 500 feet from its nearest property line, 700 feet from the property line of any non-participating resident, 1320 feet from the nearest dwelling or public building, and 1.2 times its height (generally limited to 450 feet) from the nearest road. Section 1116 further sets forth standards for the design, construction, road and maintenance access, safety, clearance, lighting, signage, and landscaping and other aesthetics of windmills and wind farms, among many other facets of wind development. As far as the operation of windmills and wind farms is concerned, Section 1116 sets forth a maximum audible noise level of L10-50 dBA (50 dBA), as measured at any off-site dwelling, school, hospital, church, public park or public library, unless the developer has obtained a noise easement. The ordinance further sets forth standards for shadow flicker, electromagnetic interference, and potential impact on birds. Under Section 1116, the location and construction of windmills and wind farms is subject to a special use permitting process during which the applicant must submit various studies and plans and maps — including plot plans, visual impact assessments and mitigation plans, shadow flicker maps, electromagnetic interference testing, avian analysis, noise studies and maps, well water impact studies, and storm water management plans — and in which responsible Town officials may vary from Section 1116's standards, whether easing or toughening them, in the case of any particular development.
Respondents' enactment of the zoning amendments, particularly those concerned with wind energy development, was not carried out in a vacuum. For several years prior, plans for potential wind development within the Town had been forwarded by, among other entities, Stony Creek Energy LLC or its parent entity, Invenergy, LLC (collectively, Intervenor). In
anticipation of its potential wind development, Intervenor paid an application fee to the Town, placed money in escrow in order to cover the Town's investigative/consulting expenses, and entered into preliminary contracts with various residents of the Town for the placement of wind-measuring devices, access roads, transmission lines, etc. on those residents' lands. The zoning amendments were additionally preceded: by legislative moratoria on the placement of windmills within the Town for some recent periods during which the 1964 zoning law remained in effect; by respondents' December 13, 2007 enactment of the Town's Comprehensive Plan; by the New York State Attorney General's promulgation of a "General Code of Conduct For Wind Farm Development" on October 30, 2008; by Intervenor's December 3, 2008 public disclosure of its business dealings with members of the Town Board and those members' families; by the Town Planning Board's initial draft of the zoning amendments; by respondents' hiring of an environmental review specialist in February 2009; by respondents' February 19, 2009 designation of itself as lead agency for purposes of review of the impacts of the proposed zoning amendments under article eight of the State Environmental Quality Review Act (SEQRA); by the Town's completion of Part 1 of a full Environmental Assessment Form (EAF) on February 25, 2009; by the Town's referral of the proposed zoning amendments to the Wyoming County Planning & Development Board (County Planning Board) on that same date, pursuant to General Municipal Law § 239-m; by the Town's receipt of an initial referral response from the County Planning Board on or after April 6, 2009, which response set forth about 60 individual comments/recommendations with regard to the proposed zoning amendments, including 12 that concerned their wind development provisions; by additional referral responses and other communications between Town officials and the County Planning Board, the eventual thrust of which was to iterate that Part 2 of a full EAF should additionally be completed by the Town and submitted to the County Planning Board in support of the referral, following which the Town Board could take its "final action" on the proposed zoning amendments; by a Town-conducted public hearing on May 7, 2009 and an additional public comment period ending June 11, 2009; by the Town Board's subsequent completion of not only Part 2 but also a draft of Part 3 of the EAF and submission of those Parts to the County Planning Board; by the Town Board's review of and action upon the public's comments and each comment of the County Planning Board during Town Board work sessions of July, August and September 2009; by the Town Board's further refinements of the proposed zoning amendments based upon its review of such comments; and by respondents' official promulgation of Parts 2 and 3 of the full EAF and their issuance of a negative declaration on September 23, 2009, the same date on which the zoning amendments were enacted.
The enactment of the zoning amendments was followed by the official promulgation of such zoning amendments by their filing with the Town Clerk and the State Department of State, and by official publication of the negative declaration, in late September or early October 2009. Although the record does not focus on these facts, the enactment of the zoning amendments additionally was almost immediately followed by Intervenor's submission of an application for a special use permit for a substantial wind development within the Town, an application since accepted for review by the Town. The Court further understands, that as part of that pending application by Intervenor, the Town has undertaken the SEQRA review process anew, to the current extent of having required and having accepted a Draft Environmental Impact Statement (DEIS) prepared with reference to Intervenor's proposed new wind farm.
Petitioner commenced this proceeding by the filing of an order to show cause and the verified petition and complaint (petition) in late January 2010. The order to show cause initially provided for a temporary restraining order, which this Court struck before signing the order, and sought to preliminarily enjoin the Town from acting on any application for approval of a wind development pursuant to the zoning amendments, which relief this Court denied from the bench during an initial appearance of February 5, 2010. Otherwise, the petition seeks relief pursuant to CPLR 3001 and article 78, specifically including a judgment annulling or declaring the invalidity of the zoning amendments on various grounds and directing respondents to comply with SEQRA's procedural mandates.
The Court will note here that a CPLR article 78 proceeding is not the proper vehicle to test the validity of a legislative enactment (see Centerville's Concerned Citizens v Town Bd. of Town of Centerville, 56 AD3d 1129 [4th Dept 2008], citing Kamhi v Town of Yorktown, 141 AD2d 607, 608 [2d Dept 1988], affd 74 NY2d 423 [1989]). The Court nonetheless is appreciative of the fact that the parties here have charted a procedural course under CPLR article 78, expeditiously putting together a record, foregoing disclosure, and seeking a summary determination of the merits of their respective positions.
Petitioner's grounds for seeking the invalidation of the zoning amendments are set forth in six causes of action. The first alleges that in issuing the negative declaration, respondents failed to identify and look hard at certain environmental impacts of the zoning amendments and failed to make a reasoned elaboration of the basis for the determination of no environmental significance. By its second cause of action, petitioner contends that respondents impermissibly segmented their environmental review of the zoning amendments from any subsequent review of any particular development proposal. The third cause of action alleges respondents' violation of General Municipal Law § 239-m in the manner in which they referred the proposed zoning amendments to the County Planning Board. By its fourth cause of action, petitioner alleges that the zoning amendments are inconsistent with Town's Comprehensive Plan. The fifth cause of action of the petition alleges that zoning amendments were enacted in violation of General Municipal Law § 809 (2) inasmuch as a majority of the members of the Town Board allegedly had a direct or indirect financial interest in a potential wind development under the zoning amendments. By its sixth cause of action, petitioner alleges that those same alleged direct or indirect financial interests required the affected Town Board members to recuse themselves from voting on the zoning amendments pursuant to the Town's Code of Ethics.
The petition is supplemented by a renewal of petitioner's motion for a preliminary injunction restraining respondents from approving a wind development pursuant to the zoning amendments. On the return day of the petition, this Court again made clear that it would not enjoin the municipality from taking any official action and instead would favor the parties with a prompt resolution of the merits of the petition.
By their answer and return in this matter, respondents deny that the zoning amendments were enacted illegally, arbitrarily, or in violation of lawful procedure. Additionally, respondents raise various affirmative defenses or objections in point of law, including the statute of limitations, failure to join a necessary party (i.e., Intervenor), failure to state a cause of action, and petitioner's lack of capacity or standing to sue (see CPLR 7804 [f]; see generally CPLR 3211 [a] [3], [5], [7]). The Court previously denied respondents' motion to dismiss the petition for failure to join a necessary party (see CPLR 1001). The Court now determines that the petition, which was filed within four months of the official filing of the zoning amendments and the negative declaration, was timely interposed as against respondents (see CPLR 217 [1]; see generally Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d 306, 316-317 [2006]; Stop-the-Barge v Cahill, 1 NY3d 218, 223-224 [2002]; Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 203 [1987]). The Court sees no logical basis for gauging the timeliness of the petition against Intervenor, an entity not sued by petitioner. Finally, the Court determines that petitioner has standing to challenge the enactment of the zoning amendments inasmuch as petitioner is comprised of citizens of the Town and further inasmuch as one or more of petitioner's members has demonstrated that he/she/they might be adversely affected by, among other impacts, the noise from and the view of any windmills to be erected pursuant to the zoning amendments (see Save the Pine Bush, Inc. v Common Council of City of Albany, 13 NY3d 297, 301, 304-306 [2009]; New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211 [2004]; Matter of Dental Soc. of State of NY v Carey, 61 NY2d 330, 333-334 [1984]; see generally Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 775 [1991]).
This determination of course assumes the propriety of CPLR article 78 relief in these circumstances (but see footnote 2, supra).
The Court also has before it motion by Stony Creek to intervene in the proceeding as an additional respondent pursuant to CPLR 1013 and 7802 [d]). It has been held that CPLR 7802 (d) "grants the court broader power to allow intervention in an article 78 proceeding than is provided pursuant to either CPLR 1012 or 1013 in an action" (Matter of Elinor Homes Co. v. St. Lawrence, 113 AD2d 25, 28-29 [2d Dept 1985]). Moreover, as a general matter, "intervention should be permitted where the intervenor has a real and substantial interest in the outcome of the proceedings" (County of Westchester v Department of Health of State of NY, 229 AD2d 460, 461 [2d Dept 1996]; see Bernstein v Feiner, 43 AD3d 1161, 1162 [2d Dept 2007]). Here, the Court determines that, as a proponent of a wind development project that has submitted an application for a special use permit pursuant to the zoning amendments, Stony Creek has significant financial and property interests that might be adversely affected by a judgment granting the petition. Moreover, petitioner has failed to demonstrate any prejudice by virtue of Stony Creek's interjection of itself into this proceeding. Therefore, the Court permits intervention and accepts Intervenor's proposed answer.
Concerning the merits of petitioner's various challenges to the enactment of the zoning amendments, on the basis of all of the pleadings and other papers submitted herein, this Court renders the following determinations:
FIRST CAUSE OF ACTION
THE CHALLENGE TO THE PROPRIETY OF THE NEGATIVE DECLARATION
The focus of petitioner's challenge to the SEQRA review, which was undertaken to review the environmental impacts of the all-encompassing zoning amendments, is that respondents failed to take a hard look at and make a reasoned determination with regard to the potential environmental impacts of Section 1116 of the zoning amendments, governing wind development. Petitioner's particular focus is on respondents' alleged failure to take full account of the significant adverse and sometimes non-mitigable environmental impacts of windmills in the area of noise, including low-frequency sound, and visual resources, including scenic views, impacts plainly contemplated by the zoning amendments themselves. In connection with noise impacts, it is reiterated that the zoning amendments as enacted permit windmills or wind farms constructed pursuant thereto to generate noise not in excess of 50 dBA. Petitioner emphasizes that such limit would permit levels of noise, especially at nighttime, of several times the current ambient or background noise level experienced by residents in the rural areas where windmills may be sited pursuant to the zoning amendments. Petitioner further asserts that respondents ignored the issue of low-frequency noise/vibration.
Upon examining the record, including the minutes of the public hearings, the written public comments, the minutes of the Town Board meetings and work sessions, and the completed EAF, this Court determines that respondents did not fail to give detailed attention to the issue of noise generation, including low-frequency noise. For example, in reaction to public comments about the potential noise of windmills, the subject about which the most public comments had been received, the Town Board considered various alternatives to its initial proposal to generally limit windmill-generated sound to 50 dBA as measured at any off-site dwelling, school, hospital, public park or public library. Two of the alternatives would have more strictly limited noise levels, but in ways or at levels that the Town Board evidently determined were either impractical or practically prohibitive of wind development. Instead, respondents adopted a more moderate approach in which it retained the 50-dBA limit but determined to require the wind developer, as part of its special permit application, to furnish a noise study to include a map describing the project's noise features, particularly the range of noise levels and tone and frequency characteristics expected, including low frequency, infrasound, pure tone, and repetitive/impulsive sound. Moreover, the zoning amendments ultimately enacted by respondents would require an applicant to describe and map the noise-sensitive environment of any proposed development, including identifying any off-site dwelling, school, hospital, church, public park, or public library, unless the applicant had obtained a noise easement within one mile of the base of any proposed windmill. Further, the applicant is to submit a report by a qualified engineer analyzing the pre-existing ambient noise level in the area, including but not limited to separate measurements of low-frequency and A-weighed noise levels across a range of wind speeds. Further, the applicant is to describe and map the cumulative noise impacts of the windmill or wind farm, describe the project's proposed noise-control features, identify any area not meeting the zoning amendments, and disclose the wind turbine manufacturer's noise design and field testing data, with regard to both audible and, if available, low-frequency sounds. To reiterate: all of the foregoing requirements represent revisions to the originally proposed text of Section 1116 made in the wake of the SEQRA review.
The record of the SEQRA process further makes clear that (notwithstanding their alleged failure to check the appropriate box in Part 2 of the EAF) respondents did not ignore the new regulations' potential to create noise impacts. In Part 3 of the EAF, respondents specified that the zoning amendments included provisions to avoid or minimize potential noise impacts by requiring additional setbacks, buffering, and/or other mitigation methods, by establishing supplemental use regulations or requiring a special use permit for special high-impact uses, and by setting maximum noise standards for high-impact uses. Thus, while making clear that Section 1116 of the zoning amendments was but a small part of the action reviewed by the Town under SEQRA, respondents recited:
The issue of noise impacts relating to wind energy conversion devices/farms was discussed at length during the public hearing on the Zoning Law. The standards regulating noise for wind energy conversion devices/ farms have been modified to include more stringent requirements including standards for low frequency noise. The Zoning Law makes it mandatory for the applicant to submit a noise report identifying the noise producing features of the project along with the extent of noise impacts expected from the project. The noise standards included in the Zoning Law are consistent with other wind energy ordinances and are supported by New York State's model ordinance for wind energy systems. Additional setbacks or other acceptable forms of mitigation can be established for individualThe negative declaration set forth the same considerations with respect to noise impacts in virtually identical terms.
wind energy conversion devices/ farms if the noise report indicates excessive noise impacts to nearby sensitive noise receptors. The noise study is needed because each potential windmill can be located in a unique environment (topography, relation to other windmills, structures, etc.) and will have its unique noise impacts. Therefore, through the establishment of these requirements and required SEQR analysis for any specific windmill project, significant noise impacts from these projects will be avoided or mitigated.
The Town Board spent time considering the issue of low frequency noise, including infrasound, which is sound below the normal range of human hearing. The Board received a good deal of information from various sources on the issue. The Board notes that virtually no community has established standards for low frequency noise and there is no agreement in the scientific community on whether there are any negative impacts. The Board specifically notes that studies submitted to it as hard science are in fact questionable studies by known opponents of wind facilities. As noted by the World Health Organization ("WHO") in 1999, in a report often otherwise cited by wind farm opponents, "there is no reliable evidence that infrasound below the hearing threshold produce[s] physiological or psychological [e]ffects." The lack of certainty in the scientific area is demonstrated by Dr. W. Colby, acting medical officer of health in Chatham-Kent Health Unit of the Health and Family Services for the Province of Ontario, who noted that "there is currently no substantial basis to conclude that wind turbines are directly eroding the health of people". As noted by Dr. Colby[,] even "the most eloquent spokesman for the anti-wind turbine activist[s], former UWO Dean of Medicine, Dr. Robert McMurty, has admitted that there are no controlled studies" demonstrating whether or not there have been impacts from wind turbines. As Dr. Colby notes, the allegations of negative impacts from infrasound have not been confirmed by other researchers, and "most experts are skeptical that they exist."
The Board, in particular, reviewed the "Public Health and Facts of Wind Turbines" prepared by the Minnesota Department of Health, Environmental Health Division and issued on May 22, 2009. The Minnesota paper, which reviewed various claims of impacts from noise and other types of impacts, recognized that "low frequency noise is primarily a problem that may affect some people in their homes, especially at night. It is not generally a problem for businesses, public building[s], or for people outdoors" (emphasis added). The paper specifically recommended that to ensure informed decisions there needed to be a proper study of the impact of a particular project. Specifically, the paper concluded "prediction of complaint likelihood during project planning depends on: (1) good noise modeling[,] including characterization of potential sources of aerodynamic modulation noise and characterization of nighttime wind conditions and noise." The Town Board agrees and has required, as part of this code, a study
of noise, including low frequency noise. The Minnesota paper makes clear the wide range of scientific opinion on the matter, including the fact that the specific type of machine and the terrain involved can affect the impacts created from any specific situation.
In this environment, it is not possible for the Board to establish a specific low frequency noise standard, nor is it in the best interest of the community to limit the Board's power by establishing a minimum. Unlike audible noises for which there is significant experience, multiple reports, and well-established basis for the standards established in the local law, no such background exists for infrasound. The Board's determination is consistent with the recommendation of the National Research Council's "Environmental Impacts of Wind Energy Projects." As to elements to consider in setting policy on "Impacts on Human Health and Well-Being," the Council recommendation states: "Have pre-construction noise surveys been conducted to determine the background noise levels? Will technical assessments of the operational noise levels be conducted? Is there an established process to resolve complaints from the operation of the turbines?" The new Zoning Law requires all three for wind energy conversion/ farms. The Town Board is creating a law to deal with all potential projects, not just any specific project, and therefore believes that the widest power of potential response is found not in setting a standard that may be inappropriate, but in requiring a site and equipment specific study and maintaining all powers under SEQRA to mitigate conditions to the maximum extent practicable. The wind energy conversion device/ farm portion of the Law specifically states that nothing in the Law limits the Town's ability to mitigative conditions. By requiring thorough study rather than establishing standards in a field where the science is uncertain at best, the Town Board ensures that this Local Law provides the authority to minimize impacts.
The provisions and regulations established in the Town of Orangeville Zoning Law are developed to avoid or minimize the potential noise and odor impacts of development to the maximum extent practicable. Therefore, the Town Board finds that the noise and odor impacts as a result of the adoption of the Zoning Law are not expected to be significant.
Similarly, contrary to petitioner's contention, respondents did not fail to give extensive attention to the potential visual impacts of windmills or wind farms, including the phenomenon of "shadow flicker." In response to comments from the public, respondents modified their initial proposal for windmill regulation by increasing the minimum setback of a windmill from 1250 feet from an existing dwelling or public building to 1320 feet, or one-quarter mile, from any such dwelling or public building. It did so based in part upon a survey of other towns' setback requirements, which ranged from 1.5 times the total height of the windmill, or a minimum of 675 feet in the case of a hypothetical 450-foot-high windmill, to 1500 feet.
In Part 2 of the EAF, respondents accurately disclosed that the zoning amendments could result in impacts, including potentially large impacts, to aesthetic resources, by allowing land uses or projects different from or in sharp contrast to current surrounding land use patterns, whether manmade or natural; or by allowing land uses or projects that would be visible to users of aesthetic resources or that would eliminate or significantly reduce such users' enjoyment of the aesthetic qualities of that resource; or by allowing projects that might result in the elimination of significant screening of scenic views known to be important to the area. Nonetheless, respondents concluded that such impacts could be mitigated insofar as the new zoning amendments would require high-impact land users to obtain a special use permit and would contain provisions limiting such impacts.
In Part 3 of the EAF, respondents again noted that the new windmill regulation was but a small part of the action reviewed by the Town under SEQRA. Nonetheless, with respect to the potential impacts of windmills or wind farms upon aesthetic resources, respondents recited:
The regulations established under the new Zoning Law set forth standards for wind energy conversion devices/ farms. The standards outline a town-wide comprehensive framework for the placement, construction, and erection of wind energy conversion devices/farms to avoid or minimize their potential impacts on the community. Wind energy conversion devices/farms are permitted by Special Use Permit in the Low Density District (LDD). The Zoning Law requires that any wind energy conversion device be setback from any property line by 500 feet (unless waived by the adjoining property owner), from a dwelling by 1320 feet, from any public building by 1320 feet, from a property line of a non-participating resident by 700 feet, and from a right-of-way of any public road by 500 feet. The maximum height of a wind energy conversion tower is set at 450 feet. Applications for new wind energy conversion devices/ farms shall be accompanied by a Visual Environmental Assessment Form (EAF), graphic simulations of the proposed towers, assessment of visual impact, viewshed map of the proposed towers, inventory of aesthetic resources that may potentially be impacted by the proposed towers, and visual mitigation plan to minimize the visual impacts of the proposed towers. This analysis will also be aided through the processing of these projects through SEQR, which will allow a thorough review of any site specific potential impacts to aesthetic and visual resources. The application for a wind energy conversion device/ farm shall also be accompanied by an agricultural restoration plan, noise study, shadow flicker study, avian impact study, and electromagnetic study that analyze the potential impacts of the wind energy conversion device/ farm and identif[y] proposed mitigation to minimize these impacts.The negative declaration set forth the same considerations with respect to potential visual impacts of windmills, in virtually identical terms.
The Zoning Law sets forth standards that require[ ] the applicant of a wind energy
conversion device/ farm to establish an escrow account with the Town to cover the cost of professional review, create a decommissioning bond to cover the cost of removing the facilities and restoring the site if the project shall ever be decommissioned, and enter into a host agreement and road agreement with the Town.
The provisions and regulations established in the Town of Orangeville Zoning Law are developed to avoid or minimize the potential impacts of development on aesthetic resources to the maximum extent practicable. Therefore, the Town Board finds that the impacts to aesthetic resources as a result of the adoption of the Zoning Law are not expected to be significant.
In determining whether a proposed action will have environmental significance, the agency must consider the action; review the EAF, the supporting information, and the regulatory criteria; "thoroughly analyze the identified relevant areas of an environmental concern to determine if the action may have a significant adverse impact on the environment"; and "set forth its determination of significance [or non-significance] in a written form containing a reasoned elaboration and providing reference to any supporting documentation" (6 NYCRR § 617.7 [b] [1-4]). Although the fact that an action or project is listed as a Type I action under 6 NYCRR § 617.4 (b) "carries with it the presumption that it is likely to have a significant adverse impact on the environment and may require" preparation of an environmental impact statement (§ 617.4 [a] [1]; see Matter of Forman v Trustees of State Univ. of NY, 303 AD2d 1019, 1020-1021 [4th Dept 2003]; Matter of Iroquois Cent. School Dist. v Zagata, 241 AD2d 945 [4th Dept 1997]; Matter of Eggert v Town Bd. of Town of Westfield, 217 AD2d 975, 976 [4th Dept 1995], lv denied 86 NY2d 710 [1995]), it is nonetheless the rule that no EIS is required where the lead agency reasonably finds, following preparation and review of an EAF, that the proposed action will not have a significant adverse effect on the environment (see ECL 8-0109 [2], [4]; 6 NYCRR §§ 617.2 [y], 617.7 [a] [1], [2]; see also Matter of Fuss v Hannibal Town Planning Bd., 295 AD2d 921, 922 [4th Dept 2002], lv denied 99 NY2d 505 [2003], citing Matter of Village of Westbury v Department of Transp. of State of NY, 75 NY2d 62, 68 [1989]). "[I]n reviewing the substantive issues raised in a SEQRA proceeding, [a] court will not substitute its judgment for that of the agency if the agency reached its determination in some reasonable fashion" (Matter of Kaufmann's Carousel v City of Syracuse Indus. Dev. Agency, 301 AD2d 292, 304 [4th Dept 2002], quoting Mobil Oil Corp. v City of Syracuse Indus. Dev. Agency, 224 AD2d 15, 22 [4th Dept 1996], appeal dismissed 89 NY2d 860 [1996], lv denied 89 NY2d 811 [1997] [internal quote marks omitted]; see Matter of Violet Realty, Inc. v City of Buffalo Planning Bd., 20 AD3d 901, 902 [4th Dept 2005], lv denied 5 NY3d 713 [2005]).
On the basis of the foregoing, the Court concludes, that in issuing the negative declaration, respondents fulfilled their legal obligations, which were to identify the relevant areas and environmental concern, take a "hard look" at them', and make a "reasoned elaboration" of the basis of their determination (see 6 NYCRR 617.7 [b] [1-4]; see generally Eadie, 7 NY3d at 318; Matter of Kahn v Pasnik, 90 NY2d 569, 574 [1997]; Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 688 [1996]; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417 [1986]). The Court therefore concludes that respondents' determination to issue the negative declaration was not illegal, arbitrary and capricious, or an abuse of discretion (see CPLR 7803 [3]; see also Gernatt Asphalt Prods., 87 NY2d at 688; Akpan v Koch, 75 NY2d 561, 570 [1990]).
SECOND CAUSE OF ACTION
THE CLAIM OF IMPROPER SEGMENTATION
Petitioner's second cause of action alleges that, in enacting the zoning amendments, the Town Board segmented its review of the proposed local law from any review of any specific project to which it relates or might be tied, thereby violating SEQRA's prohibition on the division of environmental review of an action such that various activities or stages of a single action or activity or project are addressed as though they were independent, unrelated activities requiring individual determinations of environmental significance. In its reply brief in support of the petition, petitioner seems to abandon any claim of segmentation per se. Instead, petitioner contends that respondents impermissibly deferred a hard look at the potential impacts of wind development until such time as Town officials had before them a concrete proposal or application to undertake a particular wind energy development in a particular location. The Court does not regard that contention as being the same as a claim of impermissible segmentation. Rather, the Court reads that claim of impermissible deferral of an examination of impacts as but a variation on petitioner's more general theme that respondents failed to take a hard look at the environmental impacts of the zoning amendments, more particularly their provisions for wind development, a claim that the Court has rejected supra.
To the extent that petitioner might be deemed to persist in its claim of impermissible segmentation, the Court would reject that claim also. A claim of unlawful segmentation is in essence a claim that a lead agency's environmental review failed to take account of the environmental impacts of another project or action or a separate component of the same project or action that is so sufficiently related to the project or action under review that it warranted a single comprehensive environmental review (see e.g. Matter of Settco, LLC v New York State Urban Dev. Corp., 305 AD2d 1026 [4th Dept 2003], lv denied 100 NY2d 508 [2003]; Sun Co., Inc. v City of Syracuse Indus. Dev. Agency, 209 AD2d 34 [4th Dept 1995], appeal dismissed 86 NY2d 776 [1995]). The concept of unlawful segmentation arises from ECL 8-0109 (2), which requires consideration of all potential environmental impact of a project or action subject to environmental review. The DEC regulations define "[s]egmentation" as "the division of the environmental review of an action such that various activities or stages are addressed under this Part as though they were independent, unrelated activities, needing individual determinations of significance" (6 NYCRR 617.2 [ag]; see Forman, 303 AD2d at 1019-1020). With regard to segmentation, the regulations additionally provide:
"Actions commonly consist of a set of activities or steps. The entire set of activities or steps must be considered [to be] the action, whether the agency decision-making relates to the action as a whole or to only a part of it.Indeed, with regard to SEQRA's requirement of the preparation of an environmental impact statement for any government-sponsored or -approved "action" that may have "a significant effect" on the environment (ECL 8-0109 [2]), one definition of "significant effect" involves the existence of "two or more related actions . . . none of which has . . . a significant effect . . . but when considered cumulatively would meet one or more of the [other regulatory significant effect] criteria" (6 NYCRR 617.7 [c] [1] [xii]). Moreover, for purposes of determining whether an action meets any of those regulatory criteria, "the lead agency must consider reasonably related long-term, short-term and cumulative effects, including other simultaneous or subsequent actions which are: (1) included in any long-range plan of which the action under consideration is a part; (2) likely to be undertaken as a result thereof; or (3) dependent thereon" (see Matter of Long Is. Pine Barrens Socy. v Planning Bd. Of Town of Brookhaven, 80 NY2d 500, 512-513 [1992], quoting 6 NYCRR 617.7 [c] [2]).
(1) Considering only a part or segment of an action is contrary to the intent of
SEQRA. If a lead agency believes that circumstances warrant a segmented review, it must clearly state in its determination of significance, and any subsequent EIS, the supporting reasons and must demonstrate that such review is clearly no less protective of the environment. Related actions should be identified and discussed to the fullest extent possible" (6 NYCRR 617.3 [g]).
Case law further establishes that:
"[s]egmentation is disfavored, based on two perceived dangers. First is the danger that[,] in considering related actions separately, a decision involving review of an earlier action may be "practically determinative" of a subsequent action . . .. The second danger occurs when a project that would have a significant effect on the environment is broken up into two or more component parts that, individually, would not have as significant an environmental impact as the entire project or, indeed, where one or more aspects of the project might fall below the threshold requiring any review' (Matter of Concerned Citizens for Envt. v Zagata, 243 AD2d 20, 22 [1998], lv denied 92 NY2d 808 [1998]). Thus, a project developer is not permitted to exclude certain activities from the definition of a project for the purpose of making it appear that adverse environmental impacts have been minimized for the purpose of circumventing the detailed review called for under SEQRA' (Matter of Long Is. Pine Barrens Socy. v Planning Bd. of Town of Brookhaven, 204 AD2d 548, 550-551 [1994], lv dismissed in part and denied in part 85 NY2d 854 [1995])"(Forman, 303 AD2d at 1019; see Matter of Maidman v Incorporated Vil. of Sands Point, 291 AD2d 499, 501 [2d Dept 2002]; see generally Matter of Defreestville Area Neighborhoods Assn. v Town Bd. of Town of N. Greenbush, 299 AD2d 631, 634 [3d Dept 2002]; Matter of Scenic Hudson v Town of Fishkill Town Bd., 258 AD2d 654, 656 [2d Dept 1999]; Matter of Teich v Buchheit, 221 AD2d 452, 453-454 [2d Dept 1995]). Thus, a lead agency "must consider the cumulative effect of other simultaneous or subsequent actions that are included in any long-range plan of which the action under consideration is a part" (Sun Co., 209 AD2d at 46-47; see Long Is. Pine Barrens Socy., 80 NY2d at 512-513 [1992]; Village of Westbury, 75 NY2d at 68-71; Save the Pine Bush, 70 NY2d at 205-207; Onondaga Landfill Sys. v Flacke, 81 AD2d 1022, 1023 [4th Dept 1981]).
Here, in deciding the claim of impermissible segmentation, the Court cannot blind itself to the fact that, in undertaking its SEQRA review prior to September 23, 2009, the Town Board was faced with the task of evaluating the potential impacts of an all-encompassing revision of the Town's zoning law (the typical environmental effects of which are positive, not adverse, inasmuch as the purpose of such land use regulation is to anticipate, eliminate, mitigate, or at least channel the adverse environmental effects of burdensome land uses). As the Town Board itself noted about the scope and purpose of its environmental review:
Although the [Zoning Law] included an entire range of zoning requirements, almost all of the public and Agency comments revolved around the section . . . dealing with wind energy conversion devices/ farms (windmills). In response to this input, the SEQR Analysis and decision not only evaluates the entire Zoning Code and Map but includes a thorough evaluation of impacts of the "windmill" section of the Law. With respect to the windmill sections of the Zoning Law, the proposed zoning amendments prescribe rigorous standards and require substantive review of windmill projects. In addition to special use permit and site plan review, the Law requires compliance with the [SEQRA], including, at a minimum, the submission of a full Environmental Assessment Form and the strong likelihood of an Environmental Impact Statement. A Visual Impact Analysis, Avian Impact Study, and Noise Analysis must be prepared for any windmill project under this Local Law. This limits the placement of windmills and windmill facilities based upon predetermined setbacks designed to avoid potential impacts to public health and safety due to ice or blade throw or the collapse of a turbine, to limit noise at non-project participating property lines and pre-existing residences, and other sensitive noise receptors, and to mitigate impacts of lighting and broadcast interference. The Law specifies height limits of four-hundred and fifty (450) feet for windmills. The Law establishes appropriate limits on minimum blade to ground distance, windmill design and color, access, agricultural mitigation, over-speed control, electrical connection, lighting, and allowable signage. Construction and operational components of windmills and windmill facilities are similarly governed by Local Law, requiring routine inspection reports, compliance with applicable industry standards and codes, lightning and ground strike devices, and certification of adequate wind load construction.
The Local Law also governs operational characteristics of windmills and windmill facilities, including abandonment and removal, site reclamation and landscaping, buildings and ground maintenance, ownership changes, modifications to windmills, shadow flicker, and operational noise level limits. The Law sets forth required sureties, including decommissioning bonds for removal, the maintenance of appropriate liability insurance, host agreements between the Town and applicant, and road agreements for road maintenance and repair with respect to the
construction of windmills.
While poorly designed or implemented windmill projects may potentially have adverse environmental impacts, enactment of this Local Law is intended to require a level of review that would preclude such projects and instead permit only those projects for which it can be adequately demonstrated that adverse impacts will be avoided. The Town Board is aware of potential windmill project applications but they have not yet been submitted to the Town.
The Court agrees with the Town Board's approach to SEQRA inasmuch as the Town Board prior to September 23, 2009 was not tasked with evaluating the adverse environmental impacts of any particular (yet unproposed) site- or project-specific development proposal to be undertaken pursuant to the (yet-to-be-enacted) zoning amendments. For that reason, respondents reasonably rejected the notion that it should consider the potentially adverse environmental impacts of any actual windmill project as part of its SEQRA review of the impacts of the more general zoning amendments themselves, or even of the those anticipated impacts of Section 1116. The Town Board legitimately took that approach on account of 1) the irrelevancy of any such future impacts of a particular future projects to the real task before it; and 2) the impossibility and indeed conjectural nature of attempting to gauge the environmental impacts of any then hypothetical specific project. As respondents suggested in the negative declaration itself: enactment of a law of general applicability such as the zoning amendments or even Section 1116 is clearly distinguishable from any legislative action that might be undertaken to rezone a particular piece of property; there were no applications for a specific windmill or a wind farm then pending before the Town; any analysis of impacts for a specific windmill or wind farm would thus have been far too speculative, both in terms of the impact of a particular project and in terms of its impact upon a particular land area or environment; the enactment of the zoning amendments was in no way connected to or contingent upon future development plans or approvals, meaning that enactment of the zoning amendments would not be "practically determinative" of any subsequent project approvals; and it remained for Town officials, through separate independent review of site plans and special use permit applications, to apply the zoning amendments to a particular development proposal and to undertake SEQRA review (including preparing or requiring the preparation of an EIS) with regard to any such proposal.
THIRD CAUSE OF ACTION
THE CLAIMED VIOLATION OF GENERAL MUNICIPAL LAW § 239-m
Petitioner contends that respondents' failure to comply with the referral requirement of General Municipal Law § 239-m deprived them of jurisdiction to take final action on the zoning amendments. According to General Municipal Law § 239-m (2) and (3), respondents were required, before taking action involving the adoption or amendment of its zoning ordinance, to "refer the same to" the County Planning Board. According to subsection (1), making a referral means delivering "a full statement of such proposed action," a concept in turn defined as submitting "all materials required by and submitted to the referring body as an application on a proposed action, including a completed environmental assessment form and all other materials required by such referring body in order to make its determination of significance pursuant to" SEQRA. Further, where the proposed action is the adoption or amendment of a zoning ordinance, the "full statement of such proposed action" shall also include "the complete text of the proposed ordinance or local law as well as all existing provisions to be affected thereby, if any, if not already in the possession of the county planning agency or regional planning council." However,"[n]otwithstanding the forgoing provisions of this paragraph, any referring body may agree with the county planning [board] as to what shall constitute a full statement' for any or all of those proposed actions which said referring body is authorized to act upon" (General Municipal Law § 239-m [1] [c]). Here, petitioner contends that, in referring the proposed zoning amendments to the County Planning Board, respondents failed to make a "full statement" of their proposed action inasmuch as they did not include a completed EAF and various supporting materials in referring the matter to the County Planning Board.
Leaving aside the statute's ambiguous requirement concerning the submission in support of the referral of "all materials required by and submitted to the referring body as an application on a proposed action" (here, no one had "applied" for a wholesale revision of the Town's zoning law), the record shows that the Town Board validly referred its initial draft of the zoning amendments to the County Planning Board on and after February 26, 2009. On that date, the Town Board submitted the text of the proposed zoning amendments and Part 1 of the EAF, the only part of the form then completed (the Court surmises that the County Planning Board already was in possession of the 1964 zoning law). By its Referral Response Form transmitted to the Town Board on or shortly after April 6, 2009, the County Planning Board notified respondents that it had "tabled" the referral. Nonetheless, as part of its official "comments" upon the referral, the County Planning Board suggested that respondents take either of two actions: 1) remove Section 1116 from the text of the zoning amendments and enshrine it into a separate local law, to be supported by a fully completed EAF; or 2) submit a completed EAF form in reference to its original proposal. At the same time, i.e., while ostensibly tabling the referral as opposed to formally taking one of the actions authorized by the statute (approval, modification, or disapproval, or no recommendation), the County Planning Board forwarded 57 specific "recommendations" for modification of the proposed zoning amendments. (Of those, only 11 concerned Section 1116, and at least three of those suggested stylistic changes only to the proposed legislation. As indicated supra, the Town Board eventually reviewed and took specific action upon each recommendation made by the County Planning Board during work sessions conducted shortly before the enactment of the zoning amendments.) Separately, by letter dated April 23, 2009, and apparently in order to clear up the confusion inherent in its initial response, the County Planning Board advised respondents of their need to complete Parts 1, 2 and 3 of the full EAF.
In response, by letter of April 30, 2009, respondents took the position that, according to the Fourth Department's decision in Matter of Batavia First v Town of Batavia (26 AD3d 840 [2006]), the Town was required to submit only its then-completed Part 1 of the full EAF to the County Planning Board in order to make a valid referral. In response to that communication, and apparently having been persuaded by respondents' reading of Batavia First, the County Planning Board on May 5, 2009 advised respondents that it had officially rescinded its request for the Town's submission of Parts 2 and 3 of the EAF. Instead, the County Planning Board voted to "re- table" the referral pending the Town Board's submission of a completed Part 2 of the EAF, together with the safety manual and the safety section of the operation and maintenance manual for a GE 1.5 SLE wind turbine.
In response to that, by letter of July 23, 2009, respondents submitted to the County Planning Board a copy of its since-completed Part 2 of the full EAF. Further, as a courtesy, the Town submitted an initial draft of Part 3 of its EAF. If the Town ever submitted the requested wind turbine manuals, the record does reveal it. Nor does the record disclose that the Town ever heard back from the County Planning Board with regard to the completeness or incompleteness of its referral or submissions in support thereof, nor is it revealed that the County Planning Board ever formally approved, disapproved, or modified the proposal referred to it for such action.
Upon reading the Fourth Department's Decision in First Batavia, this Court concludes that respondents complied with its obligations under General Municipal Law § 239-m insofar as its initially submitted Part 1 of the EAF only, the only part of the form that was then completed. However, more important than whether First Batavia supports the validity of respondents' referral in the eyes of this Court is whether that appellate decision supported respondents' position in the view of the County Planning Board. It is clear that, in reliance on that decision, the County Planning Board officially rescinded its initial directive that a fully completed EAF be submitted in support of the referral, instead directing only that Part 2 additionally be submitted. Any doubt about respondents' compliance with the County Planning Board's requirements was eliminated upon the subsequent submission of additional information as it became available, including the completed Part 2 and the draft of Part 3. In that connection, the Court reiterates that the last sentence of section 239-m (1) (c) provides: "Notwithstanding the foregoing provisions of this paragraph [dictating what must be submitted in support of a valid referral], any referring body may agree with the county planning agency or regional planning council as to what shall constitute a "full statement" for any or all of those proposed actions which said referring body is authorized to act upon." Here, the Court must conclude that there was tacit agreement that submission of Part 2 (once it was completed) would satisfy the Town Board's referral obligations, thereby freeing the Town Board to take its "final action" upon the proposed zoning amendments (see generally Gernatt Asphalt Prods., 87 NY2d at 680). Upon reading the statutory requirements, the Court can attach no legal significance to any failure on the part of the respondents to forward the wind turbine manuals to the County Planning Board. Given its appropriately supported referral and the County Planning Board's apparent failure to take timely official action with respect thereto (i.e., its apparent failure ever to take the referral off the "table" and formally approve or disapprove the proposed new law), it was entirely proper for the Town Board to take its "final action" upon the proposal by means of its enactment of the zoning amendments (see generally Gernatt Asphalt Prods., 87 NY2d at 680). The Court cannot conclude that the Town Board was obligated to make any repeated or additional referrals to the County Planning Board before doing so (see Fleckenstein v Town Of Porter, 309 AD2d 1188, 1190 [4th Dept 2003], lv denied 1 NY3d 509 [2004]).
FOURTH CAUSE OF ACTION
THE CLAIMED CONFLICT BETWEEN THE ZONING AMENDMENTS AND THE COMPREHENSIVE PLAN
Various provisions of the Town Law require a town to exercise its zoning power in accordance with a comprehensive plan (see Town Law §§ 263, 272-a, especially subsection [11]; see also §§ 261-b [2]; 271 [14]; 277 [2] [a]; 284 [2] [a, [b], [4] [a]; see generally Asian Ams. for Equality v Koch, 72 NY2d 121, 131[1988]; Meteor Enterprises, LLC v Bylewski, 38 AD3d 1356, 1358 [4th Dept 2007]; Rayle v Town of Cato Bd., 295 AD2d 978, 979 [4th Dept 2002]). Indeed, the Legislature has declared its intent to foster a policy, in furtherance of the best interests of a town and its populace, of encouraging the development and even formal enactment by a town of a comprehensive plan "which can be readily identified, and is available for use by the public" (Town Law § 272-a [1] [c], [h]; see § 272-a [4], [7]). Nonetheless, it has long been the rule that a comprehensive plan need not be contained in a single document, nor even in any document beyond the zoning ordinances and zoning map themselves and the evidence that those enactments provide of the town's land use policies (see Udell v Haas, 21 NY2d 463, 471-472 [1968]; Skenesborough Stone v Village of Whitehall, 254 AD2d 664, 666 [3d Dept 1998] appeal dismissed 95 NY2d 902 [2000], citing Asian Ams. for Equality, 72 NY2d at 131). Even now, statute defines a "town comprehensive plan" as "the materials, written and/or graphic, including but not limited to maps, charts, studies, resolutions, reports and other descriptive material[,] that identify the goals, objectives, principles, guidelines, policies, standards, devices and instruments for the immediate and long-range protection, enhancement, growth and development of the town located outside the limits of any incorporated village or city" (Town Law § 272-a [2] [a]; see § 272-a [3]). It thus remains the rule that "all available and relevant evidence on the municipality's land use policies need be examined to determine whether a municipality has a comprehensive plan" (Stone, 285 AD2d at 468, citing Udell, 21 NY2d at 471).
"A comprehensive plan has as its underlying purpose the control of land uses for the benefit of the whole community based upon consideration of its problems and applying the enactment or a general policy to obtain a uniform result" (Kravetz v Plenge, 84 AD2d 422, 429; see Asian Ams. for Equality, 72 NY2d at 131)" (Rayle, 295 AD2d at 979). "The essential purpose of the requirement that rezoning be in accordance with a comprehensive plan is to guard against ad hoc zoning legislation affecting the land of a few without proper regard to the needs or design of the community as a whole (see Town of Bedford v Village of Mount Kisco, 33 NY2d 178, 187-188, rearg denied 34 NY2d 668; Udell, 21 NY2d at 471-472; Thomas v Town of Bedford, 11 NY2d 428)" (Gernatt Asphalt Prods., 87 NY2d at 685). All that is required is that the court satisfy itself, based upon a review of all available evidence, that such a plan in fact exists and that, in amending the zoning ordinance, the municipality is acting in furtherance of the plan and the public interest (see Skenesborough Stone, 254 AD2d at 666, citing Asian Ams. for Equality, 72 NY2d at 131; see also Gernatt Asphalt Prods., 87 NY2d at 684-685).
From the foregoing, it should be apparent that the requirement that zoning actions be undertaken in conformity with a comprehensive plan is principally concerned with limited or ad hoc zoning amendments, spot rezonings, grants of use variances, and the like, as opposed to (as transpired here) a Town's wholesale revision and updating of its zoning law. Even if the Town's wholesale amendment of its zoning law could be equated with a simple rezoning, all that the foregoing principles require is that "some planning must precede rezoning; that the [Town] Board must give some forethought to the community's land use problems; and that the amendment must be consistent with, and further, a specific comprehensive plan" (see Asian Ams. for Equality, 72 NY2d at 131; Kravetz, 84 AD2d at 429-430). "What is mandated is that there be comprehensiveness of planning, rather than [obeisance to] special interest, [leading to] irrational ad hocery" (Randolph v Town of Brookhaven, 37 NY2d 544, 547 [1975], quoting Town of Bedford, 33 NY2d at 188; see Los-Green, Inc. v Weber, 156 AD2d 994 [4th Dept 1989], lv denied 76 NY2d 701 [1990]). Thus, a municipality of course may amend its zoning ordinance to promote the general welfare of the community and to respond to changing community conditions (see Rodgers v Village of Tarrytown, 302 NY 115, 121-122 [1951]) because "sound planning inherently calls for recognition of the dynamics of change" (Town of Bedford, 33 NY2d at 188).
Here, the Town has a singular written Comprehensive Plan, denominated as such and dating from late 2007, not quite two years before the enactment of the zoning amendments. Petitioner alleges that, in violation of Town Law § 272-a, the zoning amendments conflict with that formal Comprehensive Plan. Petitioner concedes, however, that the Comprehensive Plan articulates that one important zoning goal of the Town is to "allow development of alternative energy sources to take place within the Town but direct it to those areas that are most appropriate," for the purpose of "[e]liminat[ing] or reduc[ing] [dependency on fossil fuel and foreign energy." Thus, in both permitting and closely regulating wind energy development, the zoning amendments comport rather than conflict with the Town's Comprehensive Plan. Nor has petitioner shown that the zoning amendments, particularly Section 1116, conflict with other municipal goals and purposes articulated in the Comprehensive Plan and cited by petitioner, including serving the Town's populace through land regulation, concentrating new commercial development within well defined nodes and in areas suitable for such uses and highly accessible to the population; setting aside particular areas for industrial development; preserving the integrity of existing natural areas; and concentrating development in areas proposed for growth. Besides, it seems to this Court that the wholesale revision of the Town's zoning ordinance must be characterized as not only conforming to the Town's Comprehensive Plan (i.e., the discrete document bearing that title), but as now constituting the essence of the Town's comprehensive plan (i.e., the Town's discernible land use policies).
The Court reject's petitioner's contention that wind development within the Town will not meaningfully reduce dependancy on fossil fuels and imported energy — it will, if not by itself, then in combination with other like development. The Court further rejects petitioner's contention that commercial wind farms do not serve the population of their host towns, instead generating electricity for distribution through power grids for the benefit of the population of an entire region, particularly any nearby urban populations. Such an approach to the issue of siting electricity-generating facilities would, if universally followed, inevitably and unworkably result in a situation in which electric power would have to be generated in every locality, albeit in each instance only for the exclusive use or benefit of the local populace or work force.
FIFTH AND SIXTH CAUSES OF ACTION
THE ALLEGED ETHICAL VIOLATIONS OF VARIOUS TOWN BOARD MEMBERS
The Court will assume, arguendo, that the County Planning Board formally recommended modifications to the zoning amendments initially proposed by respondents, that respondents rejected those formal recommendations, and that the enactment of the zoning amendments thus became subject to a supermajority requirement (see General Municipal Law § 239-m [5]). In this case, four members of the Town Board voted to enact the zoning amendments, whereas the fifth member, Tom Schabloski, recused himself from the matter on account of his financial ties to Intervenor. Petitioner now alleges that three of the four voting Town Board members (all but respondent Susan May) had direct or indirect financial ties to Intervenor or other wind energy developers, such that their participation in the amendment of the zoning law violated General Municipal Law § 809 (2) and provisions of the Town Code of Ethics, the latter promulgated pursuant to General Municipal Law § 806. Petitioner contends that the allegedly unlawful participation of any of the three board members in question should, in light of the supermajority requirement, nullify the vote to enact the zoning amendments.
The Court concludes that General Municipal Law § 809 (2) was not violated herein. Section 809 does not apply to prohibit the participation of any of the three Town Board members in question in the enactment of the zoning amendments. Section 809 (1) makes clear that the initial enactment or wholesale amendment of the zoning laws of a municipality is not the sort of official action subject to that statute, since it is not an action undertaken upon the "application, petition or request" of a particular "person, partnership or association" in which the Town Board might be deemed to have a direct or indirect financial interest. The practical effect of any other rule would be to permit only non-landowning municipal legislators (the unlikeliest of civic participants) to vote on the initial enactment or pervasive amendment of a zoning law (see Town of North Hempstead v Village of N. Hills, 38 NY2d 334, 344 [1975]).
Analysis of the ethical issues arising under the Town Code of Ethics leads to the same result. Petitioner alleges the violation by three Town Board members of section 3 (e) of the Code of Ethics, which requires that such members "publicly disclose on the official record . . . any direct or indirect financial interests" that he or she has in proposed legislation that comes before the Board. "Interest" is defined by the Town Code of Ethics to mean "a pecuniary or material benefit accruing to the" Town official personally. Petitioner further alleges the violation of section 3 (f) of the Code of Ethics, which prohibits Town Board members from holding "any investments directly or indirectly in any financial, business, commercial or other private transaction, which creates a conflict with his [or her] official duties."
Here, petitioner has not demonstrated a prohibited direct pecuniary or material interest on the part of any Town Board member who voted in favor of the zoning amendments, and it appears to this Court that even such tangential or indirect interests as are now alleged by petitioner were fully disclosed by the Town Board members in question. For example, petitioner has demonstrated that, according to the December 3, 2008 disclosure letter of Intervenor, Town Board member Hans Boxler had (through a limited liability company in which he is a member) ongoing contractual dealingswith Intervenor, but those dealings concerned the lease of lands or the grant of an easement over lands in a different municipality, the Town of Sheldon, in relation to a wind energy development unrelated to any project proposed to be undertaken in the Town of Orangeville. The record does not support the allegation that Boxler had a direct financial interest in Intervenor, nor does the record support the inference that any financial benefits accruing to Hans Boxler in relation to the prior land dealings in the nearby town were dependent or contingent on the passage or defeat of the zoning amendments.
Similarly, the December 3, 2008 letter discloses that respondent James Herman had, prior to becoming a Town Board member, sold land (and/or an easement over land) in the Town of Weathersfield to a different wind energy development firm for construction of a substation and transmission line. Hermann had no direct financial interest in Intervenor, and his prior dealings with a different energy firm in a different town put him in no position to gain or lose from the passage or defeat of the zoning amendments in the Town of Orangeville. In support of the petition, petitioner further demonstrates only that Dean Smith, the brother of James Herman's wife, entered into a lease agreement with Invenergy with respect to projects proposed for lands in the Towns of Middleberry and Attica. Such circumstance does not establish any prohibited or reportable interest on the part of James Hermann personally.
Finally, the record discloses no financial dealings between Intervenor and Town Board member Andrew Flint or members of his family. It was disclosed that Invenergy had approached Andrew Flint's parents at an earlier stage of its proposal about a possible lease of land in the Town, but that no agreement had been signed and that discussions had been discontinued. Like the other Town Board members in question, Andrew Flint had no direct financial interest in Intervenor. In support of the petition, petitioner demonstrates only that James Flint, the brother of Andrew Flint, had first tenant-farmed and then subsequently purchased land over which a previous owner had conveyed an easement (or lease interest) in favor of Intervenor. Again, that situation does not establish any prohibited financial interest in Intervenor on the part of Andrew Flint himself.
Although petitioner alleges that all five Town Board members, including Schablowski, had voted in favor of the Town's Comprehensive Plan in December 2007, a year before the December 2008 disclosures, that allegation is of no relevance to this case. Petitioner does not challenge the enactment of the Town's Comprehensive Plan, but rather relies on that (valid) enactment as invalidating a later enactment. According to the fifth and sixth causes of action themselves, the instant challenge is to the validity of the zoning amendments only. Consequently, it is strictly in connection with that latter enactment that the alleged ethical lapses of Town Board members must be evaluated.
Accordingly, the verified petition and complaint is, insofar as it seeks relief pursuant to CPLR article 78, DISMISSED. Otherwise, it is DECLARED that respondents did not act unlawfully in enacting Local Law No. 2 of 2009, entitled "2009 Amendments to the Town of Orangeville Zoning Law and Official Zoning Map."
SO ORDERED:
HON. PATRICK H. NeMOYER, J.S.C.