Matter of Frigault v. Town of Richfield Planning Board

State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: May 21, 2015 518840

________________________________

In the Matter of CAROL A.

FRIGAULT et al.,

Respondents,

v MEMORANDUM AND ORDER

TOWN OF RICHFIELD PLANNING

BOARD et al.,

Appellants.

________________________________

Calendar Date: February 10, 2015

Before: Lahtinen, J.P., Garry, Lynch and Devine, JJ.

__________

Kehoe & Merzig, PC, Oneonta (David S. Merzig of counsel),

for Town of Richfield Planning Board, appellant.

Young/Sommer, LLC, Albany (J. Michael Naughton of counsel),

for Monticello Hills Wind, LLC and others, appellants.

Tooher & Barone, LLP, Albany (Meave M. Tooher of counsel),

for Keith C. Armstrong and others, appellants.

Douglas H. Zamelis, Cooperstown, for respondents.

__________

Devine, J.

Appeal from a judgment of the Supreme Court (Cerio Jr.,

J.), entered January 23, 2014 in Madison County, which granted

petitioners' application, in a proceeding pursuant to CPLR

article 78, to annul determinations of respondent Town of

Richfield Planning Board granting a request by respondent

Monticello Hills Wind, LLC for a special use permit.

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As detailed in our prior decision in a related proceeding

(Matter of Frigault v Town of Richfield Planning Bd., 107 AD3d

1347 [2013]), respondent Monticello Hills Wind, LLC (hereinafter

the applicant) sought a special use permit in connection with the

proposed construction of six wind turbines and related facilities

on land in the Town of Richfield, Otsego County. In 2011,

respondent Town of Richfield Planning Board (hereinafter Board)

issued a negative declaration of significance under the State

Environmental Quality Review Act (see ECL art 8) and granted a

special use permit for the project. Supreme Court annulled both

determinations in response to the CPLR article 78 proceeding and

action for declaratory judgment that followed. Upon appeal, this

Court reinstated the negative declaration, but upheld the

annulment of the special use permit on various grounds (Matter of

Frigault v Town of Richfield Planning Bd., 107 AD3d at

1352-1353). As is relevant here, this Court agreed that the

Board had "failed to comply with the applicable Town of Richfield

Land Use and Building Management Ordinance" (hereinafter Land Use

Ordinance), which only allows the issuance of a special use

permit where eight enumerated conditions are met (id. at 1353).

The Board corrected the procedural deficiencies pointed to

by this Court and, in September 2013, issued a special use permit

accompanied by detailed findings regarding the eight conditions

set forth by the Land Use Ordinance.1 Petitioners commenced the

present CPLR article 78 proceeding and argued, among other

things, that the special use permit was invalid because

substantial evidence did not support the Board's findings as to

the conditions. Supreme Court agreed with regard to two of the

conditions, granted the petition and annulled the special use

permit. This appeal by respondents ensued.

The Land Use Ordinance permits specified uses in the area

where the project is to be built and allows "[a]ll other uses"

for which a special use permit is obtained. Contrary to

petitioners' assertion, while the project is not allowed as of

right in the district, the fact that it is "permitted . . . is

1

The Board had previously approved the special use permit

in August 2013, but revisited the issue at the urging of counsel.

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'tantamount to a legislative finding that [it] is in harmony with

the general zoning plan and will not adversely affect the

neighborhood'" (Matter of Twin County Recycling Corp. v Yevoli,

90 NY2d 1000, 1002 [1997], quoting Matter of North Shore Steak

House v Board of Appeals of Inc. Vil. of Thomaston, 30 NY2d 238,

243 [1972]). As such, "the burden of proof on an owner seeking a

special exception is lighter than that on an owner seeking a

variance, [with] the former only being required to show

compliance with any legislatively imposed conditions on an

otherwise permitted use" (Matter of Retail Prop. Trust v Board of

Zoning Appeals of Town of Hempstead, 98 NY2d 190, 195 [2002]; see

Matter of Feinberg v Board of Appeals of Town of Sanford, 306

AD2d 593, 594 [2003]). The determination of the Board that those

conditions had been met here will be upheld if it "has a rational

basis and is supported by substantial evidence in the record"

(Matter of Steenrod v City of Oneonta, 69 AD3d 1030, 1031 [2010];

see Matter of Retail Prop. Trust v Board of Zoning Appeals of

Town of Hempstead, 98 NY2d at 196).

The parties do not dispute upon this appeal, and we agree

with Supreme Court, that the Board's findings with regard to six

of the eight conditions enumerated in the Land Use Ordinance are

supported by substantial evidence. The first of the remaining

two conditions requires that the "[l]ocation, use and size of

structure, nature and intensity of operations involved, size of

site in relation to it, and location of site with respect to

existing or future streets giving access, are such that it will

be in harmony with orderly development of the district." The

second requires that the "[l]ocation, nature and height of

buildings, walls, fences and signs will not discourage the

appropriate development and use of adjacent land and buildings or

impair their value."

With regard to those two conditions, the wind turbines are

almost 500 feet tall when the rotor blades are fully vertical.2

2

The Board stated that the turbines were taller than

"many" structures in the Town, while Supreme Court pointed to

proof in the record that their size was "unprecedented." While

the Board's language was perhaps not as precise as Supreme Court

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Notwithstanding their size, the Board pointed out that the

turbines are located in an area where high-voltage electric

transmission lines have already altered the landscape, and noted

that other factors minimized the impact of the project upon the

viewshed. The project will have minimal impact upon traffic

after construction is completed and, given the economic benefits

that will accrue to participating landowners, the Board found

that it would help to preserve existing uses of the surrounding

properties. Moreover, the Board cited a study in the record

finding that property values would not be impacted by the

project. The Board also pointed to proof that the applicant had

entered into setback agreements with nonparticipating landowners

who resided within 2,000 feet of the turbines, further ensuring

that the project would not impair the use of nearby parcels or

development in the zoning district. Supreme Court pointed to

conflicting evidence submitted by petitioners with regard to both

conditions but, even if that evidence was properly considered, "a

court may not substitute its own judgment" where substantial

evidence supports the determination of the Board (Matter of

Retail Prop. Trust v Board of Zoning Appeals of Town of

Hempstead, 98 NY2d at 196; accord Matter of Metro Enviro

Transfer, LLC v Village of Croton-on-Hudson, 5 NY3d 236, 241

[2005]). Inasmuch as substantial evidence indeed supports the

Board's findings in full, Supreme Court erred in annulling the

special use permit.

Lahtinen, J.P., Garry and Lynch, JJ., concur.

would have liked, the fact remains that the Board recognized that

the project constituted a more intense use than others in the

area and assessed it in that light.

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ORDERED that the judgment is reversed, on the law, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court