Wind critics appeal ruling

CAPE VINCENT — The Wind Power Ethics Group has appealed a state Supreme Court judge's ruling that three documents cannot be included in the record of an earlier appeal regarding dismissal of the group's Article 78 proceeding against the town's Zoning Board of Appeals.

The citizens organization that opposes large-scale wind power development brought an Article 78 suit in March 2007 against the ZBA, claiming it incorrectly classified industrial wind turbines as utilities. Judge Hugh A. Gilbert dismissed the petition in August, ruling the classification was correct under existing zoning law.

The group appealed the decision in September to the state Appellate Division, Fourth Department, Rochester. It also made a motion to have three documents that were not part of the lower court's administrative record included in the record of appeal.

Judge Gilbert denied the request June 16 and WPEG has now filed an appeal of that decision, according to documents filed Wednesday at the Jefferson County clerk's office.

The disputed documents are a draft local town law dated June 28, 2006, a 2003 joint comprehensive plan and the Aug. 28, 2006, meeting minutes of the town board.

The group contends the draft local law, while never adopted, was used by the town Planning Board as "guidelines" in processing wind turbine applications. The group claims the proposed law is also "critical" because it "expressly acknowledged" that the town's zoning law does not include turbines in its definition of utilities.

The group further claims the joint comprehensive plan refers to considerations that run counter to the ZBA's findings regarding turbines, such as the visual impacts and the location of the towers. The town board's meeting minutes of Aug. 28, 2006, are relevant because, the group claims, a town attorney is quoted as saying town law "doesn't specifically address wind power," which is the group's main contention with regard to its appeal of the Article 78 dismissal.

Both sides acknowledge the documents were referred to during the Article 78 proceedings, but were never entered into the record. The group contends the references were sufficient to make the documents part of the record of appeal, but Judge Gilbert disagreed in his June 16 decision.

"Petitioners could have but apparently chose not to submit the three documents to the Court for its consideration on the Petition," Judge Gilbert wrote. "We cannot permit Petitioners to expand the record to include documents which were not before the Court on their Petition."

The appeal of the decision was filed Wednesday.