Kristen Benson Successfully Represents Farmer Resulting in The Supreme Court Affirming the New York State Department of Agriculture and Markets’ Decision to Grant Variance for Wind Turbine in the Town of Clarence, NY

Petitioners, the Town of Clarence and Clarence Zoning Board of Appeals, commenced an Article 78 Proceeding against Respondents, the New York State Department of Agriculture and Markets (the “Department”), Richard A. Ball, as Commissioner (the “Commissioner”), and Thompson Brothers Greenhouse and its individual owners (“Thompson Brothers”), seeking review of a determination by the Department that found petitioners’ zoning ordinance unreasonably restricted Thompson Brothers’ farm operations by refusing to grant a variance to build a 153-foot wind turbine to provide electric power to its greenhouse operation. Petitioners alleged that the Commissioner’s determination was affected by an error of law, was arbitrary and capricious, and constituted an abuse of discretion. Respondents moved to dismiss the petition. The Court granted Respondents’ motion to dismiss concluding that the Department conducted a thorough investigation, considered all of the objections and concerns raised by petitioners, and properly granted the variance for the wind turbine. The Court further held the Commissioner was entitled to rely on the investigation and recommendations of the Department’s staff and reject petitioners’ data and the conclusions drawn therefrom so the Commissioner’s determination and order was not arbitrary, irrational ,or capricious; nor was it based on an error of law or an abuse of discretion.