Over the last few months, New York state trial and appellate courts have sent a relatively clear message to municipalities interested in siting wind projects: Go ahead and site them, but make sure you first dot all your “I”s and cross all your “T”s.
Municipalities have withstood legal challenges in cases including:
- Friedhaber et al v. Town Bd. of Town of Sheldon, 2007 NY Slip Op 51772U; 16 Misc. 3d 1140A; 851 N.Y.S.2d 58; 2007 N.Y. Misc. LEXIS 6403 (N.Y. App. Term, 1st Dep’t 2007) (uncorrected, unpublished opinion)
- Matter of Trude v. Town Bd. of Town of Cohocton, 17 Misc. 3d 1104A, 851 N.Y.S.2d 61, 2007 N.Y. Misc. LEXIS 6578, 2007 NY Slip Op 51829U (Sup. Ct. Stueben Cty 2007) (uncorrected, unpublished opinion)
- Matter of Advocates for Prattsburgh v. Steuben Cty Indust. Devpt Agcy, 48 A.D.3d 1157, 851 N.Y.S.2d 759, 2008 N.Y. App. Div. LEXIS 804, 2008 NY Slip Op 893 (N.Y. App. Div. 4th Dep’t 2008) (uncorrected opinion)
Municipalities lost (or did they?) in Matter of Brander v. Town Bds of Town of Warren and Town of Stark, 18 Misc. 3d 477, 847 N.Y.S.2d 450, 2007 N.Y. Misc. LEXIS 8258, 2007 NY Slip Op 27498 (Sup. Ct. Onondaga Cty 2007) (uncorrected opinion). The opinion cites a litany of mistakes the Towns made in granting the approvals necessary to move ahead with the Jordanville Wind Power Project. Most, but not all, mistakes involved the towns’ application of New York’s SEQRA (State Environmental Quality Review Act) procedure. The towns “failed to consider all reasonable options”, relied to heavily on post-approval mitigation measures to counter environmental problems, “failed to consider the environmental concerns”, and improperly delegated SEQRA duties to other agencies. As if that were not enough, the towns also violated New York’s Open Meetings Law by having “executive sessions” in private for reasons not permitted by the statute.
So why might one argue that the Towns did not actually lose? As noted, the court found the Towns’ violations to be relatively egregious. But what remedy did it order? True, it annulled the decisions. But more importantly, the court simply directed the Towns to do it over (with the implicit message to do it right).
It seems relatively clear from each of these four decisions that a wind project may advance provided that the municipality in charge of review follows the various laws, such as SEQRA, the Town Law, the Open Meetings Law, etc., that impact the project. The message for wind proponents is “don’t be tempted to cut corners; do it right the first time.”