The Town of Howard is headed back to court.
Art Giacalone, a Buffalo-based lawyer representing a group of Howard residents, informed members of the media via e-mail that his clients have filed a second lawsuit against the town in regard to its wind energy law. The case will be handled again by Judge Joseph Valentino, and the first appearance is slated for 2 p.m. Sept. 6 in Rochester.
The Article 78 proceeding was filed on behalf of the Howard residents – Eric and Kyle Hosmer, Gerald Hedman, Richard Mariotto, James Lindsay, and William and Nikki Harkenrider – against the Howard town and planning boards, EverPower Global, Howard Wind LLC and Councilman Bill Hatch.
The suit calls for the annulment and setting aside of the town’s Local Law No. 1 of 2007, the town’s code of ethics law; Local Law No. 2 of 2007, the town’s planning board law; and Local Law No. 3 of 2007, the amended wind energy facilities law. It also requests the negative declaration – under the State Environmental Quality Review Act – for the adoption of the wind energy facilities law be annulled and set aside.
The lawsuit also asks that Hatch be removed from his position as town board member, alleging he had been “engaging in fraudulent conduct, violating the letter and spirit of General Municipal Law Article 18 (Conflicts of Interest of Municipal Officers and Employees), and breaching his fiduciary duty to the residents of the Town of Howard.”
Giacalone, as well as his clients, declined to comment on the record concerning the pending lawsuit. Giacalone, however, did not that Valentino had not yet ruled on the town’s motion to dismiss “as moot” the surviving claims from the first lawsuit. He said that means two suits are now pending against the town.
Tom Reed, Howard’s town attorney, could not be reached for comment by press time.
The new suit is taking on a trio of laws approved by the town board in March, despite numerous complaints from the nearly 100 people that attended the public hearings on the then-proposed laws. After dealing with public comments for around two hours, the board approved all three local laws unanimously.
The wind law amendments changed the way permits will be approved, taking the power from the town board and giving it to the planning board, which Reed said was done as a result of the first lawsuit against the town that alleged conflict of interest by board members that had ties to a proposed wind farm in Howard.
Giacalone had comments on the town’s code of ethics, saying it would not help anyone, and does not let the residents know what the standards are.
“This code of ethics should be letting the town board members know what is right and what is not right,” he said. “Your code of ethics does not do that.
“What’s the purpose of this law?” he said. “If it’s just to check it off, then you’re doing the public a disservice.”
The planning board local law provided for the appointment of up to four alternates to the planning board, to be appointed by the town board. The alternates would serve if a regular member is “unable to participate in matters before the Town Planning Board because of a conflict of interest, illness or other absence.” Alternates would be appointed for one-year terms.
Giacalone had issues with it, saying the planning board law would just help the town board avoid having to make difficult decisions. He said it was a “cozy way” for the town to remove the conflict impression of the decision-making process.
“You’re passing on a very important power,” Giacalone said. “It’s a very inadequate way to deal with it.”
By Rob Montana
25 July 2007
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