September 11, 2015
New York

Town of Somerset hires Vacco in legal fight against Apex wind power project

By Thomas J. Prohaska, News Niagara Reporter | The Buffalo News | September 10, 2015 | www.buffalonews.com

SOMERSET – The Town of Somerset has hired former state Attorney General Dennis C. Vacco to lead a legal fight against Apex Clean Energy’s proposed wind power project, and Apex may have to pay for it.

Supervisor Daniel M. Engert said the town, and the anti-wind power citizens group Save Ontario Shores, or SOS, are allowed to apply to the state Public Service Commission for “intervenor funds” that would have to come out of the pocket of the Virginia wind turbine company.

However, any money the town or SOS receives can’t be used toward challenging the project in court, Town Attorney Michael J. Norris said.

Vacco, a partner in the Buffalo law firm Lippes Mathias Wexler Friedman, will be paid $270 an hour to represent the town’s viewpoints in hearings before the state siting board that will consider the size and location of the Apex project. Engert said other attorneys in the firm also are likely to be involved, with fees starting at $150 an hour.

A mail-in survey this spring in Somerset showed that a majority of residents – from 55 percent to 67 percent depending on the various scenarios offered in the survey – opposed the project.

The siting board procedure is expected to be the first since the state amended the Public Service Law in 2011 to remove local municipalities’ power to block wind projects through local laws or zoning codes. The siting board will be dominated by state officials and even the two local members on the seven-member panel will be chosen in Albany.

Somerset has a local law restricting the height of wind turbines to 450 feet. Apex is proposing as many as 70 turbines near the Lake Ontario shore in Somerset and the neighboring Town of Yates, each as much as 600 feet tall.

Apex has signed long-term leases for more than 5,000 acres in the towns, offering $15,000 an acre for sites chosen for turbines. Their exact locations won’t be known until the company files details with the PSC, perhaps this fall.

Once it files that “preliminary scoping statement,” the town can seek intervenor cash of $350 per megawatt. Apex is expected to build a 210-megawatt project, so that’s a maximum of $73,500. After a formal application is made, the town can seek another $1,000 per megawatt, or $210,000.

Engert said, “The Town of Somerset is going to insert the legal voice of our community everywhere we can under the law.” He and Norris would not discuss their legal strategy, and Vacco did not return a call seeking comment Thursday.

The supervisor said Vacco will help the town revise its local law on wind power to assist with the challenge.

Engert also released a letter he sent to Gov. Andrew M. Cuomo Aug. 28. Engert told the governor, “The worst part of this situation is that my community faces this very real, very personal and very large issue without the ultimate ability to be able to decide for ourselves what is right and good for us. You, sir, took that away from us and every community in New York State with your ill-conceived law.”