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Wind cases blowing forward

iStock image used with permission.

Separate cases involving a wind turbine project in two Finger Lakes communities are moving ahead.

Monroe County Supreme Court Justice John J. Ark on Wednesday denied the Town of Italy’s request to dismiss an Article 78 petition filed by Ecogen Wind LLC and Ecogen Transmission Corp. of West Seneca, Erie County. Ecogen is seeking review of the town’s denial of a special-use permit, required in order to build its proposed 17-wind turbine project in Yates County.

Judge Ark’s brief order also ordered the town to answer Ecogen’s petition and submit town records to the court within 45 days.

Ecogen has proposed construction of 17 wind turbines in Italy and 16 in the adjacent Town of Prattsburgh, Steuben County, as part of the Ecogen Prattsburgh-Italy Wind Farm.

In September, Harter Secrest & Emery LLP halted its representation of the town following a dispute over unpaid bills. Town Attorney Edward J. Brockman was unavailable for comment Thursday.

Opposition has surfaced in both towns.

“We’re certainly dismayed that the judge has not recognized the power of towns to control their own land use,” said Gary A. Abraham, a Cattaraugus County attorney representing the Finger Lakes Preservation Association, an intervenor respondent.

Abraham said Ecogen’s application “was denied based on regulations the town had adopted. Ecogen twice sued the town and drove the town’s budget into the ground, and continued to threaten to sue the town because the town had banned wind farms.”

In an effort to avoid further litigation, Italy adopted an incentive Wind Zone Law in February 2009. The new zone previously was classified as scenic overlay, visible from both Canandaigua and Keuka lakes.

“That was a major concession, but the town never guaranteed what the outcome would be,” Abraham said. “In the end, the town was convinced noise and other aesthetic impacts were too dramatic, and too much of a burden, and would not be offset by the financial incentives Ecogen offered.”

In a July 2009 letter to the town, Ecogen proffered $1.6 million in cash, equipment, building improvements and other amenities.

Abraham said Ecogen never offered to change the size or number of turbines in its plans, and that no incentives other than cash were offered.

“The town determined the impacts were so dramatic, there would have to be some change  … to avoid some of those impacts,” Abraham said. “Rural areas derive much more income from tourism than they do from industry.”

Abraham said the association has never been against the construction of wind farms. The site where Ecogen wants to build is  located less than 1,000 feet from homes in the two towns, which Abraham says is too close.

“Wind farm developers have a problem in New York because New York’s rural areas are so densely populated,” Abraham said. “As long as wind farm developers continue to push for siting their projects closer than that, there are going to be complaints.”

Ecogen is represented by the Rochester law firm of Nixon Peabody LLP.

“This project is important to the renewable energy goals of the state because of the highly unique wind resource on that ridge,” said Nixon Peabody partner Robert W. Burgdorf. “Ecogen looks forward to getting to the merits of the lawsuit now that the preliminary motions are resolved.”

Italy Town Supervisor Brad Jones, who took office Jan. 1, declined to comment for this report.

Meanwhile, in Prattsburgh

In a separate order, Judge Ark granted the Town of Prattsburgh limited, expedited discovery to be completed by Nov. 24, allowing the town board to review records leading up to the previous town board’s mid-December acceptance of a settlement agreement with Ecogen to grant the company “vested rights” for the project. Judge Ark’s order stays Ecogen’s request to enforce the settlement.

Voters ousted two of the five town board members in the November 2009 election, including Supervisor Harold McConnell, who was defeated by Albert Wordingham. Councilwoman Sharon Quigley lost to Anneke Radin-Snaith while Charles Shick was re-elected, joining the new board members who took office Jan. 1. Shick is named in the suit, along with board members Steven Kula and Stacey Bottoni, whose four-year terms expire at the end of 2011. The newly seated board rescinded the agreement Jan. 7.

“The settlement agreement that was approved by the outgoing board last year was procured by fraud,” said Edward P. Hourihan Jr., an attorney with Bond, Schoeneck & King PLLC’s Pittsford office, who represents Prattsburgh. “The conduct of the outgoing board to attempt to push through a fraudulent settlement at the 11th hour is offensive, and Judge Ark’s ruling will allow a much closer look … at the motivation and conduct of the outgoing board members and their attorney.”

Former Town Attorney John Leyden resigned at the end of last year. Hourihan said his discovery centers on possible collusion between Ecogen and town board members who stand to benefit economically, attempts by Ecogen to improperly lobby town board members and potential conflicts of interest on behalf of the former town attorney and former town supervisor.

“The new town supervisor and town board will have an opportunity to revisit all of these issues,” Hourihan said. “The law is plain and clear that a lame duck legislative body may not bind an incoming legislative body, as was done here.

“Equally offensive is the fact that Ecogen wrote the enabling resolution this lame duck colluding board voted on. The judge’s ruling allows us to shine a light on the activities by Ecogen and the outgoing board that resulted in this fabricated settlement.”

Burgdorf said the Town of Prattsburgh negotiated and entered into an agreement with Ecogen that is binding on both parties.

“The new town board doesn’t like what the previous town board did and is looking to change the deal,” he said.