                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 21, 2015                      518840
________________________________

In the Matter of CAROL A.
   FRIGAULT et al.,
                    Respondents,
      v                                     MEMORANDUM AND ORDER

TOWN OF RICHFIELD PLANNING
   BOARD et al.,
                    Appellants.
________________________________


Calendar Date:   February 10, 2015

Before:   Lahtinen, J.P., Garry, Lynch and Devine, JJ.

                             __________


      Kehoe & Merzig, PC, Oneonta (David S. Merzig of counsel),
for Town of Richfield Planning Board, appellant.

      Young/Sommer, LLC, Albany (J. Michael Naughton of counsel),
for Monticello Hills Wind, LLC and others, appellants.

      Tooher & Barone, LLP, Albany (Meave M. Tooher of counsel),
for Keith C. Armstrong and others, appellants.

     Douglas H. Zamelis, Cooperstown, for respondents.

                             __________


Devine, J.

      Appeal from a judgment of the Supreme Court (Cerio Jr.,
J.), entered January 23, 2014 in Madison County, which granted
petitioners' application, in a proceeding pursuant to CPLR
article 78, to annul determinations of respondent Town of
Richfield Planning Board granting a request by respondent
Monticello Hills Wind, LLC for a special use permit.
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      As detailed in our prior decision in a related proceeding
(Matter of Frigault v Town of Richfield Planning Bd., 107 AD3d
1347 [2013]), respondent Monticello Hills Wind, LLC (hereinafter
the applicant) sought a special use permit in connection with the
proposed construction of six wind turbines and related facilities
on land in the Town of Richfield, Otsego County. In 2011,
respondent Town of Richfield Planning Board (hereinafter Board)
issued a negative declaration of significance under the State
Environmental Quality Review Act (see ECL art 8) and granted a
special use permit for the project. Supreme Court annulled both
determinations in response to the CPLR article 78 proceeding and
action for declaratory judgment that followed. Upon appeal, this
Court reinstated the negative declaration, but upheld the
annulment of the special use permit on various grounds (Matter of
Frigault v Town of Richfield Planning Bd., 107 AD3d at
1352-1353). As is relevant here, this Court agreed that the
Board had "failed to comply with the applicable Town of Richfield
Land Use and Building Management Ordinance" (hereinafter Land Use
Ordinance), which only allows the issuance of a special use
permit where eight enumerated conditions are met (id. at 1353).

      The Board corrected the procedural deficiencies pointed to
by this Court and, in September 2013, issued a special use permit
accompanied by detailed findings regarding the eight conditions
set forth by the Land Use Ordinance.1 Petitioners commenced the
present CPLR article 78 proceeding and argued, among other
things, that the special use permit was invalid because
substantial evidence did not support the Board's findings as to
the conditions. Supreme Court agreed with regard to two of the
conditions, granted the petition and annulled the special use
permit. This appeal by respondents ensued.

      The Land Use Ordinance permits specified uses in the area
where the project is to be built and allows "[a]ll other uses"
for which a special use permit is obtained. Contrary to
petitioners' assertion, while the project is not allowed as of
right in the district, the fact that it is "permitted . . . is


    1
        The Board had previously approved the special use permit
in August 2013, but revisited the issue at the urging of counsel.
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'tantamount to a legislative finding that [it] is in harmony with
the general zoning plan and will not adversely affect the
neighborhood'" (Matter of Twin County Recycling Corp. v Yevoli,
90 NY2d 1000, 1002 [1997], quoting Matter of North Shore Steak
House v Board of Appeals of Inc. Vil. of Thomaston, 30 NY2d 238,
243 [1972]). As such, "the burden of proof on an owner seeking a
special exception is lighter than that on an owner seeking a
variance, [with] the former only being required to show
compliance with any legislatively imposed conditions on an
otherwise permitted use" (Matter of Retail Prop. Trust v Board of
Zoning Appeals of Town of Hempstead, 98 NY2d 190, 195 [2002]; see
Matter of Feinberg v Board of Appeals of Town of Sanford, 306
AD2d 593, 594 [2003]). The determination of the Board that those
conditions had been met here will be upheld if it "has a rational
basis and is supported by substantial evidence in the record"
(Matter of Steenrod v City of Oneonta, 69 AD3d 1030, 1031 [2010];
see Matter of Retail Prop. Trust v Board of Zoning Appeals of
Town of Hempstead, 98 NY2d at 196).

      The parties do not dispute upon this appeal, and we agree
with Supreme Court, that the Board's findings with regard to six
of the eight conditions enumerated in the Land Use Ordinance are
supported by substantial evidence. The first of the remaining
two conditions requires that the "[l]ocation, use and size of
structure, nature and intensity of operations involved, size of
site in relation to it, and location of site with respect to
existing or future streets giving access, are such that it will
be in harmony with orderly development of the district." The
second requires that the "[l]ocation, nature and height of
buildings, walls, fences and signs will not discourage the
appropriate development and use of adjacent land and buildings or
impair their value."

      With regard to those two conditions, the wind turbines are
almost 500 feet tall when the rotor blades are fully vertical.2


    2
        The Board stated   that the turbines were taller than
"many" structures in the   Town, while Supreme Court pointed to
proof in the record that   their size was "unprecedented." While
the Board's language was   perhaps not as precise as Supreme Court
                              -4-                518840

Notwithstanding their size, the Board pointed out that the
turbines are located in an area where high-voltage electric
transmission lines have already altered the landscape, and noted
that other factors minimized the impact of the project upon the
viewshed. The project will have minimal impact upon traffic
after construction is completed and, given the economic benefits
that will accrue to participating landowners, the Board found
that it would help to preserve existing uses of the surrounding
properties. Moreover, the Board cited a study in the record
finding that property values would not be impacted by the
project. The Board also pointed to proof that the applicant had
entered into setback agreements with nonparticipating landowners
who resided within 2,000 feet of the turbines, further ensuring
that the project would not impair the use of nearby parcels or
development in the zoning district. Supreme Court pointed to
conflicting evidence submitted by petitioners with regard to both
conditions but, even if that evidence was properly considered, "a
court may not substitute its own judgment" where substantial
evidence supports the determination of the Board (Matter of
Retail Prop. Trust v Board of Zoning Appeals of Town of
Hempstead, 98 NY2d at 196; accord Matter of Metro Enviro
Transfer, LLC v Village of Croton-on-Hudson, 5 NY3d 236, 241
[2005]). Inasmuch as substantial evidence indeed supports the
Board's findings in full, Supreme Court erred in annulling the
special use permit.

     Lahtinen, J.P., Garry and Lynch, JJ., concur.




would have liked, the fact remains that the Board recognized that
the project constituted a more intense use than others in the
area and assessed it in that light.
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      ORDERED that the judgment is reversed, on the law, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
