Opponents of the 36-turbine Windfarm Prattsburgh LLC project recently lost their judicial challenge, made on ethics grounds, to the votes cast by Town Supervisor Harold McConnell in favor of permitting the Town of Prattsburgh to exercise eminent domain against certain town properties for the purpose of laying electrical lines to serve the wind farm.
In her February 26 decision, Judge Marianne Furfure of the Supreme Court of New York (Steuben County), found that Supervisor McConnell had not violated General Municipal Law section 805-a or the Town’s Code of Ethics. The judge therefore rejected petitioners’ challenge to the June 24, 2008 decision of the Town Board to allow eminent domain to proceed.
The controversial project requires electric lines to be buried. Supervisor McConnell, an advocate of the project, cast a tie breaking vote on June 24, 2008, to approve the condemnation of certain town properties to permit the placement of such lines. Supervisor McConnell in late 2007 had, in his private role as a real estate agent, received $1900 from the seller’s agent in a transaction between Windfarm Prattsburgh LLC and a local property owner (whose property, because of the transaction, was not required to be condemned). (The opponents earlier in the month lost an appellate court challenge to the eminent domain decisions themselves.)
Project opponents alleged that he was therefore not sufficiently disinterested to cast votes on a preliminary April 2008 and the subsequent June 2008 Town Board resolutions, in violation of state law and the Town Ethics Code. After first determining that the court had jurisdiction and the petitioners had standing, the court concluded that the April 2008 resolution was not a final decision and so was not appealable.
As for the June 2008 decision and McConnell’s vote, the court reasoned that
[g]iven the isolated nature of the transaction, the time frame within which it occurred, and McConnell’s long standing support of project, it cannot be said, under all the circumstances, that the monies he received were a gift from Windfarm for any official action on his part or compensation for a matter pending before the Board… Under all the circumstances, receipt of this broker’s commission did not create the likelihood that McConnell’s vote to condemn was influenced by the payment he received.
As consequence, the court declined to annul the June 2008 decision.
The case is Dudley v. Town Board of the Town of Prattsburgh, 2009 NY Slip Op 50317U, 2009 NY Misc. Lexis 472) (Sup. Crt of New York (Steuben County), Feb. 26, 2009).
The issue raised in the case -ethics in the wind development context- is the basis for the investigation of New York Attorney General Andrew Cuomo into the activities of wind developers and town officials in New York state.