Court Decision Regarding Windmill and Zoning
Town of Sweden, NY

Court Decision Which Granted an Area Variance for a Wind Mill
After the Town Of Sweden, NY Zoning Board Denied the Area Variance

STATE OF NEW YORK
SUPREME COURT
COUNTY OF MONROE

KEVIN HARRISON and LISA RICH, petitioners,

vs.,

TOWN OF SWEDEN ZONING BOARD OF APPEALS,

consisting of Donald Grentzinger, Lynne Conradt, Frank Fisher, Jodi Nestle, and Kenneth Read, ALAN BADER, Building Inspector for the Town of Sweden, and THE TOWN OF SWEDEN,

Respondents.

APPEARANCES OF COUNSEL
Knauf & Craig, LLP, Rochester (Alan J. Knauf, Esq. Of Counsel) for Plaintiffs. Dale E. Rath, Esq., Brockport for Defendants.

DECISION.

Petitioners challenge denial of a Building Permit for a 100 foot tower. The tower accommodates an energy system for the conversion of wind into electricity. Respondents oppose the application.

The Petitioners own land in a rural, agricultural area located in the town of Sweden. They seek approval from the Zoning Board to build a windmill consistent with traditional agricultural use of the land There are two other windmills on farms in the Town.

Thereafter, on October 8, 1996, Respondent denied an "area variance" despite no height restriction for towers within the Sweden town code. See town code generally, and specifically the possible applicable limitations as set forth in Exhibit 'B' of Respondent's answer. While the town may be anticipating height restrictions, especially in light of the recent issue regarding cellular tower regulation, there are no such confinements within the code at this time.

Accordingly, the petition shall be granted.

In addition, the Court finds the reasons of the Board to be unpersuasive. The rural, agricultural character would not be changed by another windmill. No legitimate health, safety or welfare concern was presented. The board engaged in mere speculation as to noise, and there was no reasonable basis for the board to conclude this energy application is not a permitted use. No code provision limits height or prevents a tower of this type based upon "customary accessory use."

In this Court's opinion, the board resolution was the result of general community opposition (D 'Angelo v. Zoning Board of Webster, 645 NYS 2d 378 (4th Dept 1996)). Even then, undue emphasis was placed on the wishes of Dr. LePage and neighbors not in the immediate vicinity of the property.

Petitioner shall submit an order accordingly, and attach a copy of this decision to the same. The proposed order shall be submitted to the Court within 10 days hereof, and once it has been signed, it shall be served and filed with the Clerk of Monroe County within 10 days therefrom.

DATED: February 6, 1997

ENTER:
EDMUMD A. CALVARUSO
Supreme Court Justice