Art. 10 - Opinion vs Evidence

Mr. Wiley's JLL blog opinion on Art. 10 preemption of local zoning laws.

“What this means is that with a comprehensive, complete, well documented, fair, carefully crafted, and fully reasonable zoning law that does not single one specific kind of industry for special adverse treatment (with an “outright ban”) but prohibits a broad range of aspects or impacts that are generally considered objectionable to most people in a residential community – no matter what kind of industry produces those objectionable impacts – then you have a highly defensible zoning law that any wind developer is going to have a very tough time with.”

Let’s see if it holds up with an actual Art. 10 siting board decision.  A precedent already set under the older Art. 10 law.  It was for a  huge gas power plant near the scenic Hudson River that had very stiff organized opposition.  The town involved also  had a good zoning law where this gas plant could not meet the zoning codes.

Below is the siting board rational for preemption.   

“The pump house would be a non-conforming use in a RU

district. In addition, the interconnects, which would cross

various land use districts, would not be permitted uses or uses

authorized by a special permit. The pump house and the

interconnects, however, are essential elements of the proposed

facility. Therefore, the local requirements barring those

installations are unreasonably restrictive given the existing

technology.

Because the pump house could not comply with the established setback requirement in the RU district, we conclude that the requirement is unreasonably restrictive given the existing technology. In addition, many of the proposed facility's structures would not comply with the 35-foot height limit established in ZO §403. Those structures, which include the turbine enclosures and the transmission towers, cannot be

redesigned to conform to the requirement. Therefore, we conclude

that the height limit is unreasonably restrictive given the existing technology.”

Now the gas plant could not meet two very important well thought out codes for setbacks and height restrictions.  And keep in mind that setback and height restrictions are not radical ideas in zoning.  Even the state of NY has examples of zoning codes that show setback and height as reasonable approaches to zoning.  Virtually every good zoning law will have these items.

Yet the Art. 10 siting board preempted them anyhow.

Mr. Wiley also expresses his opinion of what the siting board is saying.  Let’s see whether that holds up as well.  He is talking about what Art. 10 has told BP as a wind developer.

“And they were further told that a basis for invalidating the Cape zoning law could not be simply that the law would make their proposed project unfeasible or impractical.  That would not be good enough for the Siting Board to declare the law “unreasonably burdensome.”

Really???   Now read an actual Art. 10 siting board reasoning!  Also posted above.

“Because the pump house could not comply with the established setback requirement in the RU district, we conclude that the requirement is unreasonably restrictive given the existing technology. In addition, many of the proposed facility's structures would not comply with the 35-foot height limit established in ZO §403. Those structures, which include the turbine enclosures and the transmission towers, cannot be

redesigned to conform to the requirement. Therefore, we conclude

that the height limit is unreasonably restrictive given the existing technology.”

If you look at what Wiley is claiming the new Art. 10 board was saying to BP in theory.  And what an older Art. 10 siting board actually did, it appears it is completely contrary!

The siting board actually did, make the exact case that the zoning laws in that town WOULD make the gas power plant impractical or unfeasible… SO they preempted those reasonable zoning restrictions that stood in the way anyhow.

Now this is a decision under an old version of Art. 10. But it is the same agency  under the NYPSC and this is now a precedent.

Wiley has his opinions, yet he has no case or solid evidence to back up his claims since no wind siting has been done in NYS under the new Art. 10 laws.  It s all conjecture.

What I am showing you is an ACTUAL siting and an ACTUAL thought process from the agencies that will control the sitings.

And keep in mind that back then NYS had a big agenda to site any kind of power plant because they were desperate for more power. Didn’t matter if it was the scenic Hudson Valley.  And they were using Art. 10 to make sure that happened and no local town or its zoning would stand in the way.  Just like today’s Art. and wind power! 

You decide...one man's opinion, or some actual Art. 10 thought processes and decisions.

 Now if you want to write the NYPSC, go ahead please feel free. Don’t let me stop you.  But I think the reality is going to be different than Wiley and you might expect.

Also keep in mind the Mr. Wiley once reported after an Art. 10 meeting in CV that the Art. 10 judge said BP must comply with the CV town law. It was far from reality as he was trying to spin the Hirschey govt wind law Art. 10 appeasement case.

What in fact the judge said was he recommended that the town and BP sit down and see if there was a way BP could mostly comply with the town law, but maybe not 100%  That is a damn long way from declaring BP had to comply with our law.