Prattsburgh town officials are celebrating a court ruling giving a developer five months to put in substantial work on a 16-turbine wind farm in the town.
“I think it’s good news,” said town Supervisor Al Wordingham. “It may not be a homer, but it’s a double.”
Ecogen sued the town of Prattsburgh last year after the new town board rescinded an earlier agreement drafted by the developer and approved by a lame duck board.
Ecogen claimed the town intended to block the developer’s legal right to construct its wind farm, while the board maintained the earlier agreement was coerced and illegal.
According to a complex March 7th ruling by state Supreme Court Justice John Ark, the initial agreement was legal and both parties must work out a road use agreement. Ark said he will determine the final agreement between the long-time combatants, if necessary.
After the agreement is signed, Ark has given Ecogen 168 days to make substantial progress in the project it has insisted for two years is “shovel-ready.”
If Ecogen fails to meet the deadline, the project is over.
“I don’t think they can do it,” said Prattsburgh’s attorney Ed Hourihan, of Bond, Schoeneck and King. “They don’t have the turbines, they don’t have the contracts or the money, they don’t have all of their permits.”
The key issue in Ark’s ruling is the matter of vested rights – the right to carry out a project because of the work already put into it.
Ark ruled a settlement with Ecogen by a lame-duck town board in December 2009 was legal but based on the mistaken impression the developer already had vested rights in the project.
But any delay in going forward with the project was “partly attributable” to Ecogen’s actions, Ark said.
In addition, Ark ruled Ecogen has not put in the substantial work required to secure vested rights.
Hourihan said the decision based on vested rights also gives the town a powerful tool in any appeals court.
“The appellate court has said it very simply,” he said. “No vested rights – no project.”
The town also is in a strong position to appeal based on the board’s right to rescind the December decision that led to the current lawsuit, Hourihan said.
Ecogen and the town have been at odds several times during the past few years, with tensions increasing after February 2009, when residents in nearby Cohocton complained about intolerable noise levels at the operating First Wind wind farm. The board considered a moratorium in order to look at the noise issue, but dropped it when Ecogen threatened to file a lawsuit.
Ecogen did sue the town following fall, charging the town had failed to approve a road use agreement opposed by pro-wind board members.
After several pro-wind board members were ousted by 2-to-1 margins in the November elections, Ecogen threatened another lawsuit if the current board did not reach a favorable settlement by the end of the year.
The settlement was swiftly approved by the lame-duck board, then rescinded by the new board – and the year-long litigation between Ecogen and Prattsburgh in Ark’s court began.
Since then, the town has enacted a moratorium on wind-related construction, in order to develop a “wind utility law.” The moratorium is still in place.
While Ark noted Ecogen could claim it is “grandfathered” in and allowed to begin work, Hourihan said the ban is “in effect and in full force” for any wind-related activity.
Ecogen and its financial backer, Pattern Energy, have declined to comment throughout the proceedings. However, Ecogen attorney Robert Burgdorf told the Democrat and Chronicle Thursday the developer “is pleased the court recognized its right to proceed with this important project.”
Wordingham said the town board has not made any decision on whether it wants to appeal the ruling. Some officials believe Ecogen may want to appeal the ruling in order to ask for more time, he said.
“It’s early days yet,” he said. “The road use agreement is on my desk. We look at it. We sign it. Let the clock begin.”
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