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Attorney, town supervisors host meeting on Article 10

SYRACUSE – Attorney Dennis C. Vacco from Lippes Mathias Wexler Friedman LLP and the town supervisors for Clayton and Somerset, Niagara County, hosted a meeting to inform municipal leaders about local responses to state Article 10 reviews of proposed power generation projects.

Mr. Vacco, former state attorney general, and his team from the firm discussed the logistics of the Article 10 process including what is required for electricity generating facility developers and owners and what municipalities can do to be involved.

Mr. Vacco’s team represented both Clayton and Somerset during various stages of the Article 10 process.

“Article 10 is a very complicated and as of yet untested statute,” Mr. Vacco said.

In order to assist municipal representatives in being involved in the review process, Mr. Vacco and his team discussed how municipalities can become stakeholders and represent themselves.

Mr. Vacco said that municipal leaders can register their municipalities as stakeholders for individual projects on the state Public Service Commission website, allowing them to receive files as the application process progresses.

Mr. Vacco also discussed how to apply for intervenor funding and told participants that if municipalities do not have local ordinances regarding energy development, developers do not have to include them in their application exhibits.

Mr. Vacco said that he feels that Article 10 inhibits municipalities from participating in the process.

According to the state Department of Public Service, both the Board on Electric Generation Siting and the Environment Siting Board review singular developer applications together, supplementing the former procedure of developers applying for multiple state and local permits. The combined siting board for each project would include two ad hoc members from the community where the project would be located.

Mr. Vacco said that because the siting board has the authority throughout the application process, municipal involvement and control is limited if not “neutered.” He also said that the language of Article 10 allows developers to interpret the statute as a way of pre-empting local law.

“There will soon be a legal battle over exactly what Article 10 means in regards to local municipalities and home rule authority,” he said.

Both Clayton Town Supervisor David M. Storandt Jr. and Somerset Town Supervisor Daniel M. Engert shared their experiences and issues with the Article 10 process.

When many municipalities expressed their concerns with Article 10, Mr. Vacco discussed the possibility of contesting the law in state Supreme Court.

Mr. Vacco said that the municipalities could form a collective effort to file for litigation against the legitimacy of Article 10 in order to allow more home rule. Mr. Vacco also said that he would be willing to represent the municipalities in a potential case, but only if they joined efforts.

“It is unfair … for that litigation to be borne by two to three towns,” he said.

Mr. Storandt said that he would be interested in challenging Article 10 if the town of Clayton had support.

“If we garner more support, I’m all for it,” he said.

Mr. Storandt said that he discussed the town’s experiences with the Article 10 process for Atlantic Wind LLC and its Horse Creek Wind Farm, including the moratorium on wind facility applications and the lawsuit that followed.

The town council adopted Local Law No. 2 on April 27, establishing a moratorium on applications for wind energy facilities, including Atlantic Wind’s temporary meteorological towers. In response, the company filed a lawsuit requesting the state Supreme Court to annul the local law, but Judge James P. McClusky denied their request.

“It all came on as soon as I became the new town supervisor,” Mr. Storandt said.

Mr. Engert, the town supervisor for Somerset, discussed the challenges his town faced throughout the process for Apex Clean Energy’s Lighthouse Wind project.

Mr. Engert said that Somerset, which was the first town in the state to go through the process, received “woefully inadequate” funding for their experts and legal consultants hired to address the project’s public scoping statement. He also said that both the town and the PSC advised the company to revise its statement, but no changes were made.

“There was a lack of any results,” Mr. Engert said. “Local constituents should have a voice.”

Mr. Vacco said that no discussions on the value of wind power took place during the meeting.

“There was not effort on the part of the law firm … to take a position on pro-or-con wind,” he said.

Mr. Vacco said that more than 30 elected municipal officials and town attorneys from 16 to 20 towns throughout upstate New York attended the meeting.

“It was extremely important,” said Scott A. Gray, chairman of the Jefferson County Board of Legislators. “I thought it was important that I have an understanding of the process and what is ahead of us.”