Special Permit For Wind Farm Reversed Even Though Board Complied With SEQRA

The appellate division sustained a SEQRA negative declaration, but nonetheless reversed the grant of a special permit for failure to address all the criteria required for the issuance of a special permit. In the Matter of Frigault v. Town of Richfield Planning Board, the Court found that the Board took a hard look at potential environmental issues prior to issuing a negative declaration and complied with the Open Meetings Law. However, it failed to address each of the standards required for issuing a special permit.

The lower court found the Town had violated the Open Meetings Law and therefore annulled the SEQRA negative declaration and the special permit. In modifying the determination of the lower court, the appellate division held:

"the Board's negative declaration was issued in compliance with SEQRA. The Board engaged in a lengthy SEQRA review process, which included hiring an outside consulting firm and conducting no less than 11 Board meetings between the time the permit application was filed in March 2011 and the issuance of the negative declaration in November 2011. The full EAF was replete with studies on environmental issues, including the project's impact on bats and birds, "shadow flicker," noise, cultural resources and visual effect, and the Board afforded members of the public an opportunity to voice their concerns with respect to the project. In addition, the Board received input as to the project's environmental impacts from various state agencies, including the Office of Parks, Recreation and Historic Preservation, the Department of Environmental Conservation, the Department of Transportation, and the Department of Agriculture and Markets."

The claimed Open Meetings Law violation was raised because the crowd attending the public hearing was too large for the meeting room. as a result, the meeting was removed to a larger space, a block away, and a notice was posted on the door to advise any late comers of the relocated meeting. The appellate division disagreed with the lower court finding that this violated the law.

"Here, when it became clear that the space in the Town Hall was not large enough for the number of people who wished to attend the meeting, the Board notified everyone present — including the media — that the meeting was being relocated, and took steps to make certain that anyone arriving late would be aware of the change. In our view, the Board's efforts in relocating the meeting were aimed at accommodating the large crowd and ensuring public access, and were entirely reasonable under the circumstances...."

However, the Court still reversed the issuance of the special permit as the Board did not address each of the standards contained in the local code that must be met before a permit maybe granted.

"Town of Richfield Ordinance § 7.3 (e) provides that special use permits may only be granted if each of eight enumerated conditions are met. While the Board's resolution granting the special use permit states that it "considered and addressed each of the matters referred to in [the ordinance]," the resolution itself does not provide any explanation or elaboration thereof. Instead, the resolution refers to the document issued by the Board explaining its rationale for the negative declaration under SEQRA. Indeed, some of the issues relevant to the negative declaration under SEQRA and to the special use permit overlap. However, the Board's explanation of its rationale for the negative declaration does not directly address each of the conditions set forth in the ordinance. We are, therefore, unable to undertake intelligent review of whether the Board's determination that the project complied with the ordinance was rational and supported by substantial evidence...."

In addition, the Court found that all the proper notices were not issued prior to taking action.

-Steven M. Silverberg