Judge dismisses turbine proceeding
CAPE VINCENT — A state Supreme Court judge has dismissed a town of Cape Vincent man's Article 78 petition that sought to overturn the town Zoning Board of Appeals' revocation of his permit for the construction of a 92-foot personal wind turbine.
Roger D. Alexander, of 35157 County Route 7, filed the action in mid-October after spending $80,000 to construct the turbine using what he believed was a valid permit issued by Zoning Enforcement Officer Alan N. Wood.
The turbine was put together on Mr. Alexander's property in March or April and erected June 16. In early July, Mary C. Grogan, a seasonal resident whose property is adjacent to Mr. Alexander's, objected to the turbine and asked the ZBA to review the permit.
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. Alexander sought legal action to have the ZBA decision annulled and reversed, but in a decision filed Wednesday at the Jefferson County Clerk's office, Judge Hugh A. Gilbert ruled that the permit was improperly issued and that the ZBA "may correct the mistake by enforcing the ordinance" that the permit violates.
"The mistaken or erroneous issuance of a permit does not estop a municipality from correcting an error, even if there will be harsh results," Judge Gilbert wrote, citing case law.
Mr. Alexander was issued a permit for the construction of an "accessory structure" on his property in May 2006. The permit was renewed in March 2008 and again in May. 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.
Town zoning law prohibits accessory structures taller than 35 feet, and Judge Gilbert wrote that the corrected permit "did not rectify the error" that allowed Mr. Alexander to erect a structure taller than that.
The judge wrote that Mr. Alexander "elected to construct the tower on the vacant parcel without a permit for that parcel" and that the ZBA was within its rights to enforce its zoning laws and correct the error.
"The ZBA had a right to review the permit and a rational basis to find that it violated its ordinance," Judge Gilbert wrote.
Mr. Alexander's attorney, David B. Geurtsen, Watertown, said Mr. Alexander "has some other options," but that he wanted to discuss the options with his client before making further comment.
