While somewhat dated, this case, Ecogen LLC v. Town of Italy, 438 F. Supp. 2d 149 (W.D.N.Y. Jul. 2006), is worth mentioning at least because it is a New York state case in federal district court (these are rare) and offers some guidance on the ins and outs of wind zoning in New York towns, particularly where wind projects are contentious.
Ecogen LLC, interested since 2001 in developing a wind project in and around the Town of Italy (Yates County), filed suit to obtain relief from a wind energy (and related) development moratorium enacted in 2004 in the Town of Italy (Yates County) which was preventing Ecogen from constructing a substation in the town. The substation was for turbines to be constructed in Italy and neighboring Prattsburgh. The court indicated that while Prattsburgh was supportive of the project, Italy extended the six-month moratorium multiple times. The moratorium allowed a “hardship” exception, to be granted only after review of an application for such exception. Ecogen did not apply for such exception.
Ecogen claimed six causes of action: deprivation of due process; unconstitutionality of the moratorium; violation of 42 U.S.C. § 1983; the seeking of injunctive relief; and two state law claims. The town moved to dismiss, stating that Ecogen had failed to state a claim, in part because it failed, by not seeking a hardship exception, to obtain a final decision from the town concerning the application of the moratorium to the proposal to build a substation.
The court looked to whether the moratorium “on its face” was deficient or whether “as applied” to Ecogen it was. Regarding the facial challenge, the court indicated that to prevail Ecogen would need to show that the moratorium, at least to the extent it prevented construction of the substation, bore no rational relationship to any legitimate government purpose. The court found no valid claim that the moratorium was invalid on its face, because, under federal law, it was not “so arbitrary or irrational as to violate [Ecogen’s] substantive due process rights.” The court declined to apply state law standards advocated by Ecogen.
While Ecogen insisted that it was not challenging the moratorium as applied to Ecogen, the court nevertheless took it upon itself to consider such a claim. It found such a claim “not ripe for review.” Ecogen had argued that should the court so construe its claims, that the claim was ripe, because applying for the hardship exception would have been futile. The court disagreed. While a plaintiff need not “jump through a series of hoops, the last of which it is certain to find obstructed by a brick wall,” the court said there did need to be evidence that the town had no discretion to grant the exception, or had “dug in its heels and made clear” that it would not grant the exception. The doubtfulness of the grant of an exception, or the town’s hostility to the project was not enough. The court left for another day what an adequate showing of futility would be. (Considering what was happening here, one wonders how much heel digging is necessary to make such a showing before this court.)
The court found the length of the moratorium (two years running) needed to draft wind regulations “curious and suspicious”, but did not order the end of the moratorium, contingent however upon the town developing a comprehensive plan within ninety days of the court’s order or rendering a decision on a hardship exception application (if filed) within ninety days of filing.
Relatively recent press reports indicate that the town subsequently drafted a comprehensive plan that was relatively anti-wind development. Per the reports, Ecogen sued again, but agreed to put that lawsuit on hold provided the town consider incentive zoning, which would permit turbines provided the developer make certain payments.
A subsequent decision in the case, 461 F.Supp. 2d 100 (Nov. 2006) denied attorney’s fees to the defendant town.
Tip of the blade to Adam Kingsley, a land use attorney in the Chicago office of Holland + Knight, for bringing the case to our attention.