A proposed wind-energy project in Yates and Steuben counties so far has churned up more legal disputes than clean fuel.
The project motivated voter turnout in November, when residents of two towns elected new board members who oppose the project as proposed.
Following the election, Ecogen Wind LLC filed two legal actions in Monroe County, claiming the towns of Italy and Prattsburgh are intentionally and illegally thwarting a planned wind farm project there. Ecogen v. Town of Italy, Ind. No. 09-15485, and Ecogen v. Town of Prattsburgh, Ind. No. 09-16082.
Although Prattsburgh is poised to vote on a settlement with Ecogen, two minority town board members filed an action requesting separate counsel, claiming the town attorney has a conflict of interest. Kula and Shick, in their official capacities as Members of the Town of Prattsburgh Town Board v. Town of Prattsburgh Town Board, Ind. No. 09-17133.
All three cases currently are assigned to state Supreme Court Justice Stephen Lindley.
This week Justice Lindley will decide whether to transfer the Italy case to Yates County Judge Patrick Falvey, who presided in the FLPA's case challenging the town's wind zoning law.
Justice Lindley also is expected to rule on the Prattsburgh board members' request for counsel by the end of the year.
The project Ecogen seeks to build, respectively, 17 turbines in Italy and 16 turbines in Prattsburgh.
In court papers the company states the selected ridge-top sites are "truly rare and unique wind resource[s]" due to high wind speeds and the site's proximity to an existing transmission line that could supply to electricity to the power grid.
Ecogen's Article 78 action against Italy asks the court to review why its special use application under the town's new wind zoning law was rejected.
The company's action against Prattsburgh claims the town threatened to issue a moratorium and cites disagreements and delays over building and road permits, noise and other issues, including monetary benefits to the town.
Venue Justice Lindley said from the bench Wednesday morning that he will grant a motion to transfer the venue of the Italy case to Yates County.
He did not immediately decide on the town's request to transfer the case to Judge Falvey in Yates County, however. He said he will issue a decision within a week.
Justice Lindley said he is willing to travel to a court more convenient for witnesses and interested observers. He accused both parties of "judge shopping. "
Italy's special counsel, attorney Edward Premo of Harter Secrest & Emery LLP in Rochester, argued the matter should be transferred to Judge Falvey because he already is familiar with the case's hefty record.
Premo also argued Judge Falvey should hear the case "in the interest of judicial consistency" and because the case would have been assigned to him had it been filed in Yates County. Allowing the case to proceed before a Monroe County judge would circumvent the court's assignment system, Premo said.
In the recent case before Judge Falvey, Italy and Ecogen both stood on the same side defending the town's wind zone law, Premo said. Finger Lakes Preservation Association v. Town Board, Town of Italy, et al, Ind. No. 2009-237
Laurie S. Bloom, counsel at Nixon Peabody LLP's Buffalo office, argued Wednesday there is no legal authority for removing a case to a particular judge.
"Judge Falvey never had this case," Bloom said. She argued the only issue argued before Judge Falvey was the town's zoning law.
"We have no beef with the wind zone law or the [environmental impact statement] for the wind zone law," she said. "This is a zoning issue. We followed the procedure, they turned us down. "
On Dec. 11, the Finger Lakes Preservation Association - which previously opposed the Town of Italy's new wind zoning law - sought to intervene as a party on the town's side in the pending case. That motion is returnable Jan. 6.
Prattsburgh
Early last week Justice Lindley issued a temporary restraining order to prevent Prattsburgh from voting on the proposed Ecogen settlement before it investigated whether its minority board members are entitled to independent counsel.
The board convened Monday and voted 3-2 that the two minority members do not require independent counsel under Local Law No. 1, (similar to Public Officers Law No. 18).
During a telephone hearing late Tuesday afternoon, Justice Lindley lifted the TRO to allow Prattsburgh to vote on the proposed settlement. He did not yet rule on whether the town conducted an adequate investigation of the minority board members' request.
Prattsburgh did not vote on the settlement at its scheduled meeting Tuesday night, however since one of the three pro-settlement board members was absent.
Attorney Edward Hourihan of Bond, Schoeneck & King PLLC in Rochester, represents minority board members Steven Kula and Charles Shick and said the next board meeting will be held Friday night.
If the settlement is approved, the town is expected to seek court approval under Town Law §68.
"There's a lot of head scratching by the board and town attorney as to how Judge Lindley's decision is to be acted on," Hourihan said Wednesday morning. "Our contention was that Ecogen and the outgoing board were just attempting to railroad this through before the new board comes in. "
The town attorney for Prattsburgh, John Leyden, did not return calls for comment before press time.
"Ecogen is basically going to court to overturn the election results," said Anthony Carter, a Town of Italy property owner who attended Wednesday's hearing.
Ecogen attorneys Bloom and Robert Burgdorf declined to comment on the case.
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