Rochester — Prattsburgh town officials are celebrating a court ruling giving a developer five months to put in substantial work on a 16-turbine wind farm in the town.
“I think it’s good news,” said town Supervisor Al Wordingham. “It may not be a homer, but it’s a double.”
According to a complex March 7th ruling by state Supreme Court Justice John Ark, windfarm developer Ecogen and the town must work out a road use agreement that satisfies both parties. If necessary, Ark said he will determine the final agreement between the long-time combatants.
After the agreement is signed, Ecogen has exactly 168 days to make substantial progress in the project it has insisted for two years is “shovel-ready.”
“I don’t think they can do it,” said Prattsburgh’s attorney Ed Hourihan, of Bond, Schoeneck and King. “They don’t have the turbines, they don’t have the contracts, they don’t have all of their permits.”
The key issue in Ark’s ruling is the matter of vested rights — the right to carry out a project because of the work already put into it.
Ark ruled a settlement with Ecogen by a lame-duck town board in December 2009 was based on the mistaken impression the developer already had vested rights in the project.
But any delay in going forward with the project was “partly attributable” to Ecogen’s actions, Ark said. In addition, Ark ruled Ecogen has not put in the substantial work needed to secure vested rights.
Hourihan said the decision based on vested rights also gives the town a powerful tool in any appeals court.
“The appellate court has said it very simply,” he said. “No vested rights — no project.”
The town also is in a strong position to appeal based on the board’s right to rescind a December decision that led to the current lawsuit, Hourihan said.
Ecogen and the town have been at odds several times during the past few years, with tensions increasing after February 2009, when residents in nearby Cohocton complained about intolerable noise levels at the operating First Wind wind farm. The board considered a moratorium in order to look at the noise issue, but dropped it when Ecogen threatened to file a lawsuit.
Ecogen did sue the town following fall, charging the town had failed to approve a road use agreement opposed by pro-wind board members.
After several pro-wind board members were ousted by 2-to-1 margins in the November elections, Ecogen threatened another lawsuit if the current board did not reach a favorable settlement by the end of the year.
The settlement was swiftly approved by the lame-duck board, then rescinded by the new board — and the year-long litigation between Ecogen and Prattsburgh in Ark’s court began.
Since then, the town has enacted a moratorium on wind-related construction, in order to develop a “wind utility law.” The moratorium is still in place.
While Ark noted Ecogen could claim it is “grandfathered” in and allowed to begin work, Hourihan said the ban is “in effect and in full force” for any wind-related activity.
Ecogen and its financial backer, Pattern Energy, have declined to comment throughout the proceedings.
However, Ecogen attorney Robert Burgdorf told the Democrat and Chronicle Thursday the developer "is pleased the court recognized its right to proceed with this important project."
Wordingham said the town board has not made any decision on whether it wants to appeal the ruling. Some officials believe Ecogen may want to appeal the ruling in order to ask for more time, he said.
“It’s early days yet,” he said. “The road use agreement is on my desk. We look at it. We sign it. Let the clock begin.”
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