August 20, 2010
New York

Ruling dismisses town’s objection; Judge says Henderson failed to show injury

By Brian Kelly, Times Staff Writer, Watertown Daily Times, www.watertowndailytimes.com 20 August 2010

A state Supreme Court judge has dismissed the town of Henderson’s legal opposition to a proposed wind farm on Galloo Island in the town of Hounsfield.

Henderson’s Town Council brought an Article 78 proceeding in February asking that a judge, among other things, annul the town of Hounsfield Planning Board’s site plan approval for Upstate NY Power Corp.’s Galloo Island Wind Farm.

Judge Joseph D. McGuire ruled that Henderson lacked both standing and capacity to bring the action and that the state Department of Environmental Conservation took the requisite “hard look” while reviewing the project’s potential environmental impact.

Henderson’s initial court filing contained a host of reasons why the town would be negatively affected by the project, including aesthetically. Later, the main issue was whittled down to the route the project’s transmission line will take and how the proposed line was treated under the state Environmental Quality Review Act process.

The line originally was proposed to make landfall in Henderson, run south through the town, then go through Ellisburg, Sandy Creek and Pulaski to a National Grid line in Mexico. Since then, however, the focus of the route has shifted in a different direction, to landfall in Hounsfield and along Route 12F to an electric substation on Outer Coffeen Street.

In ruling that Henderson lacked standing to bring the action, Judge McGuire wrote that Henderson failed to show a “potential for an injury-in-fact that differs from the public at large” and that it would be conjecture to claim any injury based on the siting of the transmission line because “the actual siting of the transmission line has not yet occurred.”

Judge McGuire wrote that municipalities possibly affected by the transmission line route will be notified of this and that the proper place for a town to grieve the siting would be an appellate court, not Supreme Court, according to his decision filed Wednesday at the Jefferson County clerk’s office.

The judge also ruled that Henderson lacked capacity to bring the proceeding because it could not be proven that the Town Council ever authorized the legal action. Henderson contended that the council gave its authorization at its Jan. 20 meeting, but Judge McGuire wrote that “upon a review of the meeting minutes, the Court finds no such authorizing resolution or vote directing the initiation of this proceeding.”

The judge also could find no indication of a formal resolution or vote in subsequent meetings.

The judge ruled that, because the statute of limitations has expired on the matter, Henderson’s council cannot retroactively pass a resolution to authorize the proceeding nor take any additional measures to prove that a resolution was adopted, but not recorded in the meeting minutes.

Judge McGuire also ruled that Hounsfield’s planning board and DEC both complied with the SEQR process. Henderson had contended, among other things, that DEC improperly “segmented” the transmission line from the turbines in its review, as the review should have considered the cumulative effect of the line and the turbines.

Judge McGuire wrote that segmentation of projects under SEQR “is not always improper” and that the Galloo Island project is one such case. He wrote that the turbine sitings would require a higher level of review, likely including an Environmental Impact Statement, while the transmission line would require a less stringent review because it would be viewed as not having a significant effect on the environment.

“The Court is satisfied that NYSDEC’s treatment of the transmission line that will run from Galloo Island to Mexico, New York, was appropriate,” Judge McGuire wrote.

The judge ruled that Hounsfield’s SEQR findings and site plan approvals for the project were legal and “were not arbitrary and capricious or an abuse of its discretion.” He made a similar ruling regarding DEC’s Final Environmental Impact Statement and its other findings in dismissing the proceeding.

URL to article:  https://www.wind-watch.org/news/2010/08/20/ruling-dismisses-towns-objection-judge-says-henderson-failed-to-show-injury/