The application of zoning laws, many of which date to the 1920s are bringing alternative energy projects to a halt in 2014.
In a recent New York case, the Town of Allegany issued a special use permit to a landowner on July 11, 2011, allowing it to construct a wind farm. The Town notified the landowner that its permit would “expire if construction has not commenced within a year of approval.” On June 11, 2012, the Town extended the deadline “until the earlier of” one year or 90 days after the “conclusion of the” lawsuit commenced against the Town by a citizens’ group, Concerned Citizens of Cattaraugus County, which opposed the project.
By letter dated August 3, 2012, petitioner advised the Town that it was “considering use of alternate turbine models” for the project. Petitioner thereafter requested a second extension of the special use permit, but the Planning Board denied that request at its October 15, 2012 meeting.
The Supreme Court of the State of New York, in Allegany Wind LLC v Planning Board of Allegany, 2014 WL 1099718 (NYAD 4 Dep. 3/21/2014), concluded that, contrary to the landowner’s contention, there was a material change in circumstances since the special use permit had been issued, and that the Planning Board’s refusal to extend the special use permit for a second time was not arbitrary or capricious. When the special use permit was granted, the landowner was going to use Nordex N1000 turbines. It was undisputed that, by the time landowner requested its second extension of the permit, it proposed using alternate turbine models because that model was no longer being produced and less expensive more energy producing turbines had become available during the pendency of the lawsuit. The Town determined that a change in turbine models would constitute a change in circumstances sufficient to warrant reconsideration of the project.
The landowner also argued the time period should be tolled because, until the litigation was resolved, it could not obtain necessary financing and could not commence construction of the wind farm. The high court rejected that further contention that the expiration date of its special use permit was tolled during the pendency of the lawsuit.
Most zoning laws, including those in New York, do not provide for or otherwise recognize an equitable doctrine that would allow for the tolling of the time period of zoning approvals. Such is a bar to large and expensive projects that require special zoning approvals, as many alternative energy projects do. Interestingly, most legacy electric utility projects ‘are permitted as of right’ in all zoning districts, while zoning laws require special exceptions or special use permits or the like for many alternative energy projects.
Historic zoning laws need to be brought into the contemporary era. Electricity in the 1920s, when many of today’s zoning laws were written, powered the Edison light bulb. Today, that light bulb is illegal and electrons drive our socio-technological trends powering the information age. Modern alternative energy projects must not be allowed to be halted by old fashioned zoning laws.
Article by Stuart Kaplow, appearing courtesy Green Building Law Update.