Wind law plan leads to feud

CLAYTON — Iberdrola Renewables Inc. and Environmentally Concerned Citizens Organization are trading jabs over the proposal to amend the town's zoning law for wind power facilities.

Iberdrola's attorney, Douglas H. Ward, of Young, Sommer, Ward, Ritzenberg, Baker & Moore LLC, Albany, asked the town not to change the town's zoning law in a Sept. 21 letter.

"As there is no apparent basis for these recommendations and as the proposed standards far exceed measures proven throughout New York to appropriately avoid/minimize impacts, on behalf of my client I respectfully request that the Board should not take such legislative action," he wrote.

ECCO's attorney, Gary A. Abraham, Allegany, wrote on Oct. 28 that Mr. Ward's letter had a "number of errors or debatable conclusions."

The committee's recommendations, he said, were based on studies done by Cavanaugh Tocci Associates, Sudbury, Mass., and Schomer & Associates Inc., Champaign, Ill.

Instead, the limits based on state guidance have brought complaints about noise in other towns, he wrote.

"Such guidance and models have proven to be arbitrary, based on wind industry-sponsored noise assessment procedures that depart from established acoustic standards," Mr. Abraham wrote.

Iberdrola is the developer for the proposed Horse Creek Wind Farm, which would have 62 turbines in Clayton and Orleans.

On Aug. 26, the Town Council agreed to follow almost all of the recommendations from the town's wind committee. They would increase setbacks from roads and nonparticipating residents to 31/2 times the height of the turbine. And they would reduce the amount of noise allowed to five decibels above the ambient noise level at nonparticipating property lines. Participants can have up to 50 decibels of noise at their homes.

At the Town Council's May 27 meeting, Iberdrola business developer Jenny L. Burke told the council that a new law based on the committee's recommendations would eliminate Horse Creek Wind Farm.

Mr. Ward suggested the expected law could be considered as part of the town's environmental review process for the project. He said the town required a full environmental impact review for the project.

"As a result, my client, at significant cost, has prepared extensive studies and reports regarding the impacts and benefits of the proposed Project," he wrote.

The town could accept the committee's recommendations as comments in the environmental review and decide "whether or not these additional measures were necessary to reduce impacts to the maximum extent practicable or whether they were merely devices designed to exclude wind projects without regard to a rational balancing of benefits and impacts."

But Mr. Abraham said the town is not required to provide more protection through the environmental review than is merited under the local law.

"Courts in New York have found under some circumstances that towns may not impose requirements that exceed those found in numerical standards under a local law," he wrote.

Mr. Ward agreed the existing law should be sufficient.

"The determination and balancing of these protections and benefits is firmly in the Town Board's hands," he wrote. "In contrast, the additional measures proposed by the Committee are excessive and aimed at exclusion rather than protection by establishing standards that preempt, rather than enhance, the Board's control over responsible decision-making."

Mr. Abraham argued that the recommendations come with support of expert research.

"Independent acoustic experts and U.S. and international standard-setting organizations have called for setbacks up to two miles from a wind farm to avoid health effects from pulsating, low frequency and audible sound levels that result in sleeplessness," he wrote.

He pointed out that easements for the setbacks can be purchased from nonparticipating residents.

Mr. Ward concluded by writing, "Finally it is fundamentally unfair for the Board to implement new rules at this stage of the Project review proceeding."

Mr. Abraham responded, "It is not unfair to modify the local law at this time because the process of considering such modification has been ongoing for a considerable time, putting Mr. Ward's client on notice that change may be coming."