Petitioner was issued a special use permit on July 11, 2011 to construct a wind farm. Respondent Town Planning Board notified Petitioner that its permit would “expire if construction has not commenced within a year of [respondent's] approval.” On June 11, 2012, respondent extended the deadline “until the earlier of” one year or 90 days after the “conclusion of the” lawsuit commenced against the Town by a citizens' group, Concerned Citizens of Cattaraugus County (CCCC), in opposition to the project. In a letter dated August 3, 2012, Petitioner advised the Town that it was “considering use of alternate turbine models” for the 29-turbine wind farm. Petitioner then requested a second extension of the special use permit, which was denied by the Planning Board in October of 2012. Petitioner then filed the suit under CPLR Article 78. The Supreme Court dismissed, and Petitioner appealed.

On appeal, the Appellate Division upheld the Supreme Court’s dismissal. Specifically, the court held that there was a material change in circumstances since the special use permit had been issued because of Petitioner’s contemplated change from the use of Nordex N1000 turbines. As it is undisputed that when Petitioner requested its second extension of the permit Petitioner had proposed using alternate turbine models, the court found that the Planning Board's refusal to extend the special use permit for a second time was not arbitrary or capricious.

The case was Allegany Wind LLC v Planning Board of Allegany, 115 A.D.3d 1268 (App. Div. 2014), and it can be found here: http://www.nycourts.gov/courts/ad4/Clerk/Decisions/2014/03-21-14/PDF/1324.pdf