| Matter of Allegany Wind LLC v Planning Bd. of Town ofAllegany |
| 2014 NY Slip Op 01944 [115 AD3d 1268] |
| March 21, 2014 |
| Appellate Division, Fourth Department |
| In the Matter of Allegany Wind LLC,Appellant, v Planning Board of Town of Allegany,Respondent. |
—[*1] Hodgson Russ LLP, Buffalo (Daniel A. Spitzer of counsel), forrespondent-respondent.
Appeal from a judgment of the Supreme Court, Cattaraugus County (Michael L.Nenno, A.J.), entered February 28, 2013 in a proceeding pursuant to CPLR article 78.The judgment dismissed the petition.
It is hereby ordered that the judgment so appealed from is unanimously affirmedwithout costs.
Memorandum: Petitioner commenced this CPLR article 78 proceeding to challengerespondent's denial of its request for a second one-year extension of a special use permitand site plan approval previously issued to petitioner for its proposed 29-turbine windfarm (hereafter, project) in the Town of Allegany (Town). Supreme Court properlydismissed the petition. We reject petitioner's contention that the denial by respondent ofits request for an extension of the special use permit was arbitrary and capricious. As ageneral rule, where a party applies for an extension of a special use permit previouslyissued, the applicant "must be afforded an opportunity to show that circumstances havenot changed, and a denial of extension will only be sustained if proof of suchcircumstances is lacking" (Patricia E. Salkin, 2 New York Zoning Law & Practice§ 29:34; see generally Matter of Dil-Hill Realty Corp. v Schultz, 53 AD2d263, 267 [1976]). Moreover, "[a] board has substantial discretion in dealing withrequests for an extension of a durational limitation" (Terry Rice, 2005-2006 Surveyof New York Law, Zoning Law, 57 Syracuse L Rev 1455, 1470; see generally420 Tenants Corp. v EBM Long Beach, LLC, 41 AD3d 641, 643 [2007]). Aboard may not, however, "base its determination on 'generalized community objections' "(Matter of Metro EnviroTransfer, LLC v Village of Croton-on-Hudson, 5 NY3d 236, 240 [2005]; see Matter of Constantino vMoline, 4 AD3d 820, 821 [2004]).
Here, respondent issued a special use permit to petitioner on July 11, 2011, allowingit to construct the wind farm. Respondent notified petitioner that its permit would "expireif construction has not commenced within a year of [respondent's] approval." On June11, 2012, respondent extended the deadline "until the earlier of" one year or 90 days afterthe "conclusion [*2]of the" lawsuit commenced againstthe Town by a citizens' group, Concerned Citizens of Cattaraugus County (CCCC),which opposed the project. By letter dated August 3, 2012, petitioner advised the Townthat it was "considering use of alternate turbine models" for the project. Petitionerthereafter requested a second extension of the special use permit, but the Planning Boarddenied that request during its October 15, 2012 meeting.
We conclude that, contrary to petitioner's contention, there was a material change incircumstances since the special use permit had been issued, and that the Planning Board'srefusal to extend the special use permit for a second time was not arbitrary or capricious.When the special use permit was granted, petitioner contemplated the use of NordexN1000 turbines. It is undisputed that, by the time petitioner requested its secondextension of the permit, petitioner proposed using alternate turbine models. The recordestablishes that, during a meeting conducted by respondent several months beforepetitioner requested its second extension, petitioner's counsel answered in the affirmativewhen asked whether a change in turbine models would constitute a change incircumstances sufficient to warrant reconsideration of the project by respondent.Specifically, counsel stated, "Yes, looking at how specific the approvals were with regardto a turbine model, the potential impact may be different based on the characteristics."We note that respondent's consultant concluded that use of the proposed alternateturbines would result in noncompliance with the Town's noise setback requirements.
We reject petitioner's further contention that the expiration date of its special usepermit was tolled during the pendency of the lawsuit filed by CCCC. According topetitioner, the time period should be tolled because, until the litigation was resolved, itcould not obtain necessary financing and could not commence construction of the windfarm. We reject that contention. Although several states have recognized an equitabledoctrine that would allow for the tolling of the time period (see 3 Rathkopf,Zoning and Planning § 58:24 [4th ed]), New York has not done so and, in anyevent, this case does not warrant the application of that equitable doctrine.
The record makes clear that the CCCC lawsuit was not the primary reason forpetitioner's failure to proceed with the project in a timely manner. As representatives ofpetitioner acknowledged in several media interviews, petitioner did not go forward withconstruction in large part because it was waiting to find out whether Congress was goingto extend the Production Tax Credit (PTC) for wind energy. The PTC was scheduled toexpire at the end of 2012. Furthermore, petitioner's response to the CCCC lawsuit doesnot support a basis in equity to toll the time period for petitioner's special use permitduring the pendency of the CCCC lawsuit. Supreme Court dismissed CCCC's petition onNovember 10, 2011, approximately six weeks after the proceeding had been commenced.Although CCCC filed a notice of appeal on December 5, 2011, it failed to perfect theappeal within 60 days of service of the notice of appeal, thus rendering the appeal subjectto dismissal (see 22 NYCRR 1000.2). Nevertheless, petitioner did not move todismiss the appeal.
Moreover, when CCCC's attorney advised the Town and petitioner that CCCC didnot intend to pursue the appeal, petitioner's attorney refused to sign a stipulationdiscontinuing the action. The Town therefore moved to dismiss CCCC's appeal, butpetitioner threatened the Town with legal action if it did not withdraw the motion. Afterthe Town withdrew its motion, CCCC then moved to dismiss its own appeal, butpetitioner opposed the motion, notwithstanding that petitioner was a respondenton the appeal and had not cross-appealed. Thus, it is clear from the record thatpetitioner engaged in sustained efforts to delay dismissal of CCCC's appeal.
We have reviewed petitioner's remaining contentions and conclude that they lackmerit. Present—Smith, J.P., Fahey, Lindley, Valentino and Whalen, JJ.