Town of Italy, HSE split over fees

iStock image used with permission.

The long-term relationship between the Town of Italy in Yates County and a Rochester law firm appears to be over.

Mounting legal bills, which the town has said it cannot pay, have led Harter Secrest & Emery LLP attorneys to withdraw from representing the town in the ongoing Ecogen Wind LLC case.

The town opposes Ecogen’s plans to build a wind farm on one of its ridges bordering Steuben County. The parties have been involved in a legal battle since before last fall, when Italy’s Town Board rejected the West Seneca-based company’s application for a wind farm and the company filed suit.

Italy Town Supervisor Brad Jones, who took office in January, said the bill for December alone was $46,000. It arrived in January, and was to be paid out of the town’s 2010 law budget, which was only $40,000 for the year, Jones said. Some of the budgeted funds already had been spent on other legal matters. Jones said the 2009 law budget of $75,000 was long since exhausted.

“Before 2010 even started, we were out of legal money,” Jones said. “They asked to withdraw as counsel because we were unable to pay their bill.”

Monroe County Supreme Court Justice John J. Ark, sitting in Yates County Court, Penn Yan, granted Harter Secrest’s request last week, with a stipulation that the firm complete a questionnaire he sent to the parties, seeking clarification on a number of issues.

The town is seeking to have Ecogen’s lawsuit dismissed. The matter is adjourned to Sept. 27, when Jones said Judge Ark is expected to make a decision.

Harter Secrest & Emery LLP has represented the Town of Italy for a number of years, according to a statement issued Thursday by the firm.

“We have worked very hard and very successfully to protect the town’s interests with respect to development of wind energy in the area,” the firm’s statement reads. “The firm very much wanted to continue to fight on the town’s behalf, but the fees and disbursements due us had grown to very significant levels and the town was unable to propose any realistic plan for payment for past and future services.”

Firm leaders said efforts were made over the course of several months to reach an amicable resolution, but ultimately they no choice but to seek the court’s assistance.

Jones said the town was billed $182,000 as the total amount due outstanding. He said Harter Secrest agreed to waive about half of its billing and allow the town to pay $100,000 over two years.

“The court record clearly states that there were proposals, but no agreement,” according to the statement from Harter Secrest. “If there were, the judge would not have granted our application.”

Jones said the firm knew from the beginning that the town could not pay its fees.

“Harter Secrest was well aware that the town could not increase its budget or borrow in order to pay legal fees,” he said. “We have a very tight budget. We’re the poorest town with the lowest population in the county.”

Jones said he doesn’t know what the town will do if Judge Ark does not dismiss the suit.

“We don’t believe that Ecogen has any legal grounds for this lawsuit,” Jones said. “I think it’s typical of the way the wind developers operate in New York State. They chose towns that don’t have zoning and don’t have much money and they prey on those towns. They are predators.”

In court papers, Ecogen identifies ridges in Italy and in the neighboring town of Prattsburgh in Steuben County, as good locations for a wind energy project that would install 17 wind turbines in Italy and 16 in Prattsburgh.

The company said more than $13 million has been spent so far on the more than $150 million project, including a lengthy expensive permitting process with federal, state and local agencies.

The Town of Italy established a six-month moratorium on wind turbine towers in 2004, claiming they would affect the town’s scenery adversely. The moratorium was extended repeatedly until lifted by court order in July 2006.

In October 2006, the town adopted a comprehensive zoning ordinance that specifically prohibits the construction of wind turbines anywhere within the town. A year later, Ecogen applied for a use variance and other zoning approvals as well as waivers for the Italy project. In February 2009, Ecogen applied for a special use permit under the town’s newly enacted wind zone law, which the board voted Oct. 5 to deny. Ecogen is seeking to overturn that denial and obtain the necessary permits to proceed with the project.

The town has argued that the company, contrary to its claims, has no vested rights and that zoning law in effect at the time of judicial review bans the construction of industrial and energy facilities within the town.

Judge Ark heard arguments June 17 in Penn Yan.

In a related case, Ecogen is seeking to enforce a settlement agreement reached with Prattsburgh in mid-December 2009, which would allow it to proceed with the Prattsburgh portion of the project with several stipulations.

The town later rescinded.

Ecogen is being represented by Nixon Peabody LLP, which declined to comment for this report.