Judge slams Lyme on turbine law

By BRIAN KELLY TIMES STAFF WRITER SATURDAY, AUGUST 23, 2008

CHAUMONT A state Supreme Court judge has ruled the Lyme Town Council acted "arbitrarily and capriciously" when it rejected 10 property owners' petition protesting the adoption of a local law regulating the siting of wind turbines. Judge Hugh A. Gilbert also declared Thursday the town law adopted May 6, which, among other things, required a minimum setback of 4,500 feet from the high-water marks of Lake Ontario and the Chaumont River, is invalid. The 10 property owners brought an Article 78 proceeding against the board in early July, claiming the amendment to town zoning law includes setback requirements for turbines that are "excessive" and effectively bans the development of wind-generating facilities within the town. The owners had submitted a protest petition to the board April 17 expressing their concerns, but the town rejected it after its assessor reviewed the petition and concluded the property owners did not represent 20 percent or more of the total acreage in the town required to support the petition. While a local law dealing with zoning changes can be adopted by a majority vote of the board, once a protest petition is filed, a three-fourths majority vote is required to pass it. The town board passed its law regarding turbine siting on a 3-2 vote. The property owners argued the signatures on their protest petition represented 9,610 acres, or nearly 27 percent, of the town's 35,920 acres. A representation of at least 7,184 acres would be needed to comprise at least 20 percent of the acreage. The town countered that after removing parcels for which not all owners signed the petition and removing other ineligible signers, the petitioners represented just 5,302 valid acres. According to the assessors' report from May 6, the foremost reason for rejecting parcels was that not all of the property owners of the parcels had signed the petition. For example, if a husband signed the petition but not his wife, when both are listed on the tax roll, the husband's signature would be invalid. That accounted for about 4,167 acres that were rejected. Judge Gilbert, citing state law governing towns and villages, disagreed with the town's contention that each owner's signature was required, ruling that "the signature of one joint tenant counts for the entire parcel." "Therefore, each parcel for which at least one owner signed must be included in the threshold calculation," the judge wrote in his decision. "Since very few were excluded for other reasons, we conclude the Protest Petition contained the signatures of twenty percent or more of the total area."

The town also rejected the petition because each page of the document had not been notarized and the attached signatures not otherwise witnessed. Judge Gilbert ruled there is no statutory basis for the town's requirement that the signatures be witnessed and notarized. The landowners bringing the Article 78 all are part of the pro-wind-power group Voters for Wind. They had expected to be a part of BP's Cape Vincent Wind Farm before the zoning amendment was designed and passed.