NEWS FLASH - You Don't Have to Wait - Your Wind Zoning Has Already Been Preempted!!!

If you follow the industrial wind debate in our area of NNY you know much of the debate among people concerned about wind energy impacts currently is centered around whether regulating wind development with a zoning law is a better choice than using zoning banning wind outright.

I have always promoted a ban as a more direct approach based on community rights.

 The wind law proponents don’t seem to, or want to grasp, that since 2011 that NYS makes the final decision as to whether your wind law will be upheld … or overridden as too burdensome to the wind developer.  The debate becomes… will a wind zoning law be preempted by the state or not.

But wind law proponents need to grasp,  that even before any local wind zoning law is out of the box, major portions HAVE already been preempted by the state.

The NYS Art 10 law makes it basically illegal for any  municipality  to give or deny a permit or  approvals etc to a major wind complex.  That is entirely in the hands of the state.  In other words the procedural things in a law like reviewing, or giving permits, special use permits, variances, site plan and environmental reviews by planning boards etc.

All now  in the hands of the state.  Here is what the Art 10 law says. 

" Notwithstanding any other provision of law, no state agency, municipality or any agency thereof may, except as expressly authorized under this article by the board, require any approval, consent, permit, certificate or other condition for the construction or operation of a major electric generating facility with respect to which an application for a certificate hereunder has been filed…"

If you want to build a wind complex over 25 megawatts you don’t go to the town for a permit.  You now apply directly to the state through the Art. 10 siting process.  That is the whole point of the new Art 10 law.

Yet look at how most local zoning laws are written regarding wind development.  They are written in denial, as if the municipality still has control over those major wind development permitting matters.  They are written as if the wind developer is going to come to the town for approvals and permits.

 Below are two quotes from the Cape Vincent zoning law trying to regulate big and small wind.

 WECS = wind energy conversion systems = wind turbines.

 SWECS = small personal wind turbines. 

The clauses below are similar to many other local wind zoning laws.

 “Site Plan Review:

WECS, SWECS, or Meteorological tower shall be constructed, reconstructed, modified, operated, or replaced in the Town by first obtaining a Special Use Permit from the Zoning Board of Appeals and Site Plan approval of the Planning Board. “

 “Specific Site Plan Review Application Requirements:

A complete Site Plan Review application for a WECS or SWECS, shall include:” 

So where do the towns think they are going with this?    The state with its article 10 law clearly says you no longer have this permit/ approval power like CV attempted above in their law. Yet towns like Cape Vincent and many other move forward as if they still have home rule on this matter…THEY DON”T!!!

  It is like the drafters of these laws are operating in some complete alternate reality.

So essentially when you write wind zoning regulations like this you have already been preempted before your law even sees the light of day!

In this case there is NO argument as to whether your wind  law will be preempted by the state or not.   A MAJOR PROCEDURAL PORTION OF YOUR ZONING LAW ON WIND HAS ALREADY BEEN PREEMPTED.  In fact it was being preempted right as you were drafting it, if it was drafted after the 2011 Art. 10 was passed!

One more example of how the wind law promoters simply deny reality!