Judge: Clayton’s moratorium on meteorological towers stands for now

Atlantic Wind is in the process of developing a major wind energy generating project that will be called the Horse Creek Wind Farm. The project, which would produce about 96 megawatts of electricity, would be in the towns of Clayton, Orleans, Brownville and Lyme, with a significant portion potentially in Clayton.

Pursuant to regulations of the Public Service Commission, an application for a Certificate of Environmental Compatibility and Public Need, commonly called an “Article 10 Certificate,” must include on-site meteorological data demonstrating adequate wind resources for the proposed facility.

Atlantic Wind has proposed three Met towers within the town of Clayton, each in the town’s Wind Energy Overlay District in the southern portion of the town. While Atlantic Wind’s application for the towers was pending before the Planning Board in March, the Town Council proposed a local law banning wind energy generating facilities and Met towers. The proposed law was amended in April to establish a six-month moratorium on wind projects, rather than an outright ban. After the town adopted the law in late April, the Planning Board was prohibited from reviewing or approving applications for wind projects and on May 5 the board refused to make a determination on Atlantic Wind’s application for three Met towers, citing the town’s law.

Atlantic Wind maintains that the town’s actions are inconsistent with state Public Service Law Article 10 which, among other things, outlines regulations regarding the siting, constructing and operating of electric generating facilities. The company contends that, by enacting its local law, the town “frustrates the purpose of Article 10” and is “unreasonably burdensome” as applied to Met towers.

In its legal action, the company is asking that a judge annul the local law to the extent that it prohibits the Planning Board from reviewing and approving applications for permits to construct temporary Met towers. It is also asking, among other things, for a determination the local law be pre-empted by state law as it applies to Met towers.

While a final decision regarding the law is pending, Atlantic Wind had asked Judge McClusky to issue a preliminary injunction that would have prevented the town from enforcing its moratorium and forced the Planning Board to make determinations on the company’s three applications for permits for Met towers.

In a decision Wednesday, Judge McClusky said that, while the moratorium will prevent Atlantic Wind from obtaining wind data for six months, the company did not demonstrate that it would suffer “irreparable injury” by the delay, a necessary legal requirement for the issuance of a preliminary injunction.

“(Atlantic Wind) did not point to any deadlines they will miss and inadequately explained how or if the delay prevents them from taking any further steps along the regulatory path,” Judge McClusky wrote. “In addition, both sides acknowledge that wind testing has been going on for several years from preexisting Met Towers associated with an earlier proposed (wind project), and the Court is not aware as to how these new measurements effect the process.”

Judge McClusky wrote that it is too early in the litigation to make a ruling on the validity of the local law. He wrote that he is aware that the town may elect to extend the moratorium beyond six months, “so the underlying issues must be addressed in a timely manner.” He set a hearing for the matter for Oct. 14.