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Judge rules Watt turbine can stay

By Tom Rivers, Editor Posted 15 December 2015 at 12:00 am

File photo by Tom Rivers – An acting Supreme Court justice has issued a ruling that the 154-foot-high wind turbine at Watt Farms on Route 98 doesn’t have to be moved from a farm market and storage building. The issue has been in litigation with Gaines town officials demanding the turbine be relocated.

GAINES – A 154-foot-high wind turbine that has been the focus of lawsuits doesn’t have to be relocated, a State Supreme Court judge ruled on Friday.

The Town of Gaines Zoning Board of Appeals on Dec. 4, 2013, said the turbine would have to be moved away from a farm market and U-pick orchard at Watt Farms.

James Punch, acting Supreme Court justice in Orleans County, upheld the Gaines ZBA last December. However, the decision and the Gaines position was challenged by the state Department of Agriculture and Markets.

Ag and Markets said forcing the Watts to move the turbine, at a cost of $20,000, would unreasonable and unnecessary, according to a letter 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.

Punch, in a decision on Friday, said his decision a year ago was made without the Determination and Order from Ag and Markets. The state agency had sent advisory letters on the issue before Punch’s decision in December 2014, but the Determination and Order followed.

Ag and Markets said Gaines, with its insistence the turbine be moved, “unreasonably restricts the farm operation.” Punch sides with Watts in his latest decision and tells Gaines it must comply with the order from Ag and Markets, dated Jan. 13, 2015.

Ag and Markets in that order 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.

NYSERDA uses that setback for buildings that are occupied a majority of the time and not occasionally, such as in Watt’s situation. The train route at Watt’s and the U-pick area are temporarily visited by the public and insisting on a setback there “unreasonably restricts the farm operation,” Ball said in his letter.