Deal Is A Deal: Ecogen Wind Prevails In Windfarming Dispute

Deal Is A Deal: Ecogen Wind Prevails In Windfarming Dispute

By William A. Ruskin

The New York Law Journal reported on January 2, 2014 that the Town of Prattsburgh, which, during the relevant time, had virtually no laws, codes or requirements on the books governing the installation of wind turbine facilities, was not permitted by the court to retroactively preclude Ecogen Wind from building a wind farm in Steuben County, New York.

In a unanimous Memorandum and Order issued by the Appellate Division, Fourth Department on December 27, 2013, in Ecogen v. Town of Prattsburgh, CA 12-02307 (4th Dept. December 27, 2013), [enhanced opinion available to lexis.com subscribers], the court applied traditional contract jurisprudence to prevent the Town of Prattsburgh from voiding the terms of a settlement of prior litigation with Ecogen Wind that permitted the wind farm development to proceed.

The court held that the “parties were bound by the terms of the settlement and the court was bound to enforce it.” In March 2009, Ecogen Wind was advised in writing by the Code Enforcement Officer for the Town of Prattsburgh that there was no legal impediment to building wind turbines within the municipality and that no permits were needed.

According to the Ecogen website, the company:

..... proposes to construct 34 ± wind turbine units for the purpose of generating 79.5 megawatts, or less, of electricity in the Town of Prattsburgh, Steuben County and the Town of Italy, Yates County, New York. An overall study area of approximately 24,000 acres was identified within which the individual sites for the turbine units will be selected.

Early on, Ecogen submitted an application to the Steuben County Industrial Development Agency ("SCIDA") for financial assistance relative to the proposed project.

In its role as lead agency, SCIDA initiated the environmental review process pursuant to the State Environmental Quality Review Act (6 NYCRR Part 617) and performed a coordinated review with other involved or interested agencies. SCIDA issued a Positive Declaration, requiring preparation of an Environmental Impact Statement In accordance with 6 NYCRR Part 617. A Generic Environmental Impact Statement was selected as an appropriate means to assess potential impacts for the project.

Despite there being no applicable zoning law or building code provision, Ecogen Wind still sought formal town approval in an effort to accommodate local concerns about the project. But Ecogen, which had the necessary state permits to proceed, was unable to reach agreement with the town and commenced an Article 78 action. The parties settled the case in late 2009 acknowledging that “no rules, permits or other authorizations from the town are required… to develop, construct and operate the project.”

Shortly thereafter, a new town board came into office that was unhappy with the deal struck by its predecessors. The new board repudiated the agreement, rescinded the settlement and imposed a moratorium on windfarming. As reflected by the Appellate Division’s decision, a municipality cannot have second thoughts and renege on the agreement once a settlement is reached.

Although it is difficult to gauge the intensity of the debate over the project without living in upstate New York and participating first hand, it may be inferred from a review of the website of Advocates for Prattsburgh that tensions were high among townspeople when the new town board came into office and sought to rescind the deal.

In its Mission Statement, Advocates for Prattsburgh makes an impassioned plea to support the opposition effort:

Located in northern Steuben County and nestled between Keuka and Canandaigua Lakes, Prattsburgh, NY is an idyllic township of hills, woods and farms. Advocates for Prattsburgh is a not-for-profit, volunteer organization run and financially supported by and offering a voice to resident and non-resident Prattsburgh landowners, as well as concerned citizens in the surrounding towns. Two wind farm companies – Ecogen and UPC – plan to construct nearly one hundred, 400' high wind turbines in Prattsburgh, interspersed between the homes and properties of non-participating landowners. The noise, negative health effects, ice throws and overwhelming visual dominance of these huge industrial machines pose a severe threat to our town, the value of our property, our personal safety, and our freedom to live our lives in peace and quiet. Recent action by the Prattsburgh Town Board to use eminent domain to condemn the land of property owners who refused to grant easements to UPC for the Windfarm Prattsburgh Project should be a wake-up call for what is planned for our future and our freedoms.

Our position is not against wind power, but against the inappropriate siting of these industrial wind turbines. These massive, 400' high factories should be placed in an industrial park, in which all the property within its boundaries is contiguous and is either owned by, leased to, or easements voluntarily granted to the wind power companies. The siting of these turbines within this industrial park should also be set back from the properties lines of non-participating landowners sufficient to protect the personal health and safety of property owners, the value of their homes, and their desire not to be dominated by noise-making adjacent factories as tall as the pyramids of Egypt.

Public concerns over these potential environmental impacts, both real and imagined, represent the biggest challenge the wind industry faces in siting these projects. A map of the project (as depicted by the Advocates for Prattsburgh) is attached.

For more cutting edge commentary on developing issues, visit Toxic Tort Litigation Blog by William A. Ruskin of Epstein Becker & Green.

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