Gaines faults Ag and Markets for immoral conduct with turbine issue

Photo by Tom Rivers – Gaines Town Supervisor Carol Culhane said the State Department of Agriculture and Markets needs to accept liability, not the town, if someone is hurt from the wind turbine at Watt Farms on Route 98. The town has pushed to have the turbine moved away from a U-Pick area and farm market.

GAINES – The Gaines Town Board says the state Department of Agriculture and Markets ignored public safety in insisting that a 154-foot-high turbine at Watt Farms be allowed to stay near buildings and a U-pick area for the public.

The Town Board on Tuesday approved a formal resolution that was critical of Ag and Markets for “immoral conduct” with the turbine issue at Watt Farms. The Town Board asked the Attorney General to conduct an ethics review of Ag and Markets staff with the Watt turbine issue and similar matters.

The Town Board in its resolution says that Ag and Markets has undermined public safety, and issued letters and a determination “that falsely represented the facts in the case.” The resolution also states town officials sought to meet with Ag and Markets staff several times to discuss the issue and Ag and Markets refused “in order to hide their immoral conduct.”

A State Supreme Court judge ruled last month the turbine doesn’t have to be moved, reversing the judge’s decision from about a year before. Ag and Markets hadn’t issued a final order before Judge James Punch’s first decision in December 2014.

Ag and Markets said forcing the Watts to move the turbine, at a cost of $20,000, would unreasonable and unnecessary, according to an order on Jan. 14, 2015 from Richard A. Ball, commissioner of Ag and Markets. He sent the letter to town officials, telling them they needed to comply with the Agriculture and Markets Law.

The issue has been in the courts for more than two years with the first lawsuit filed by Mary Neilans, Watt’s neighbor. She is now on the Gaines Town Board and abstained from the vote on Tuesday.

Town officials have insisted the proper procedures for issuing a permit for the turbine were not followed and a proper setback distance away from public areas were not established by the former Planning Board. The Town Board dissolved the Planning Board about two years ago and shifted those responsibilities to the Zoning Board of Appeals.

Ag and Markets in its order last January said the town didn’t use the proper setback distance. Gaines determined the setback distance by multiplying the 154-foot turbine by 1.1 for a 169.4-foot setback minimum. Gaines officials said the turbine needed to be moved at least 169.4 feet away from the farm market, train ride course and designated U-pick areas.

Ag and Markets suggested the setback from “human-occupied buildings” be five times the rotor distance or five times 23.6 feet, which would be 118 feet for the Watt turbine. Ag and Markets based that suggestion from the recommendation by New York State Energy Research and Development Authority or NYSERDA.

Town Supervisor Carol Culhane said the board adopted the resolution on Tuesday to shift liability from the town to the state in case anyone is ever hurt by the turbine.

“Ag and Markets created the liability,” Culhane said. “That’s the purpose (with this resolution) putting it on them, not on us.”

The resolution from Gaines also calls on the State Legislature to require Ag and Markets to comply with the State Administrative Procedure Act in issuing determinations regarding the validity of local zoning laws, and calls on the State Legislature to make amendments to Ag & Markets preventing the department “from ignoring public health and safety.”