PENN YAN — A decision on the Article 78 suit over wind farm proposals in Italy will not come until August.
Acting Supreme Court Judge Patrick Falvey said after a hearing yesterday that he would reserve decision on the suit and related motions until Aug. 15, giving both sides a chance to reply to the motions in writing.
The case stems from EcoGen LLC’s application to build 18 wind turbines in Italy. The Finger Lakes Preservation Association, an unincorporated group of local residents, named the Italy Town Board and wind developer EcoGen LLC in the Article 78 suit, which alleges that the town violated the Open Meetings Law and the state environmental review process.
Gary A. Abraham, an Allegheny attorney representing the association, had made a motion to strike some of the information offered by EcoGen, saying it could already be found in material submitted by the town. Edward Premo, an attorney with Harter Secrest & Emery LLP of Rochester, had made a motion to dismiss an affidavit Abraham submitted from an expert in wind turbine noise, saying his information was not available to the town during its review of a local incentive zoning law and therefore couldn’t have been considered.
At the Tuesday’s hearing, Abraham said EcoGen used pressure and the possibility of further litigation to get the town to create the incentive zoning law earlier this year. And he said the affidavit from noise expert Richard James was simply there to show that anyone who had the same information as the Town Board did wouldn’t have drawn the same conclusions.
Abraham also accused the town of not creating mitigation efforts for the turbines’ impacts and instead saying it would later offset them with benefits and amenities for the town. He said that goes against state regulations.
Edward Premo, an attorney with Harter Secrest & Emery LLP of Rochester, represented the Town Board.
He disagreed with Abraham’s characterization that the board created its laws for EcoGen, saying the town fought the company in federal court. He said the town gave the laws a lot of consideration, first creating a comprehensive plan, considering amendments, creating an incentive zone, then a law.
Benefits for the town, including agricultural opportunities and the use of natural resources for energy, were among the factors the town considered, he said.
The town also considered the noise issue, he said. It used standard average measure for noise level — different than the one Abraham used, which measures the quietest level — which put noise in the town in the 49 decibel range. By that standard, Premo said, the town’s requirement for the turbines not to exceed 50 decibels at the property line and 45 decibels at the nearest non-participating residence was not much higher than the town’s average noise levels.
Referencing state Department of Environmental Conservation standards, Premo said 30 decibels is considered very quiet, with 45 considered a quiet, serene setting.
“The town standards were not out of line,” Premo said.
But Abraham said he used the quietest measures to compare because those are the places where the effects of the turbines will be felt the most. He said the DEC guidelines reference suburban and urban settings, not rural areas.
Megan Dorritie, also an attorney with Harter Secrest & Emery LLP, addressed the allegations related to Open Meetings Law violations.
An emergency meeting was held Jan. 30, and the association claims the town didn’t provide adequate notice. But Dorritie said the meeting was called for at the Jan. 27 meeting, so the town didn’t have time to alert the media. It did put a sign in the window of the town hall, which was sufficient, she said.
She said a February visit by three board members and the town engineer to wind farms in Cohocton didn’t qualify as a town meeting because they didn’t conduct town business or take action.
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