Man asks judge to reverse ZBA ruling

A state Supreme Court judge likely will decide whether a town of Cape Vincent man can keep a personal wind turbine on his property.

Roger D. Alexander, of 35157 County Route 7, filed an Article 78 action Tuesday at the Jefferson County Clerk's office against the town's Zoning Board of Appeals, asking that a judge reverse and annul a Sept. 14 decision by the board revoking a permit for the construction of a 92-foot turbine.

Mr. Alexander, owner of Lazy Acres Mobile Home Park, spent $80,000 to erect a personal wind turbine next to his residence to provide power to the single-family home.

According to court documents, town Zoning Enforcement Officer Alan N. Wood issued a permit May 17, 2006, for the construction of an "accessory structure" on Mr. Alexander's property, with the permit being renewed in March 2008 and again in May. None of the permits was required to undergo site plan reviews or public hearings under town zoning law.

The turbine was put together on Mr. Alexander's property in March or April and erected June 16. A final permit was issued June 15, although that permit was corrected to show that Mr. Alexander intended to site the turbine on a parcel that was not the subject of the originally approved permit.

However, according to court documents, neither Mr. Wood, town attorney Mark G. Gebo, nor Mr. Alexander "believed that the actual location of the tower was of great consequence" as both of Mr. Alexander's lots had enough room to accommodate the tower while still meeting the town's setback requirements.

In early July, Mary C. Grogan, a seasonal resident whose property is adjacent to Mr. Alexander's, wrote the ZBA to ask for a review of the permit and objecting to the construction of the turbine. Board Chairman Edward P. Bender responded July 6 that the turbine was considered an "accessory use structure" and the board would have no concerns with it as long as the appropriate setbacks were met, which he indicated was the case.

The ZBA then issued notice Aug. 23 that would it hold a public hearing Sept. 14 to determine if Mr. Alexander's permit was properly issued. At the conclusion of the hearing, where Ms. Grogan and another neighbor voiced concerns, the five-member board unanimously passed a resolution stating the permit was not properly issued.

Mr. Wood then sent a letter to Mr. Alexander asking about his intentions for the turbine in light of the ZBA's decision. Mr. Alexander will have a chance to appeal the ZBA's decision at its Nov. 2 meeting, but it appears more likely the matter will be resolved in court.

Mr. Alexander, through his attorney, David B. Geurtsen, Watertown, is asking a judge to annul the board's Sept. 14 decision as "arbitrary and capricious." Mr. Alexander contends that the board "did not conduct a detailed analysis or marshal sufficient evidence to determine whether the permits issued were consistent with town zoning law" and "failed to set forth a sufficiently detailed evidentiary basis or rationale" for its decision.

He also contends that Ms. Grogan's time to formally appeal or challenge the board's issuance of the permit had expired. He contends she had 60 days to challenge the issued permits and 30 days to challenge the ZBA's July 6 decision that the turbines were an allowed used for the property, but did not do so.

If a judge chooses not to rule on whether the ZBA's Sept. 14 decision was appropriate or on the timeliness of Ms. Grogan's objections, Mr. Alexander is asking that the matter be sent back to the ZBA for further proceedings.