BATAVIA – The town supervisors from Clayton and Somerset will attempt to form a coalition of town councilmen and challenge the constitutional authority of state Public Service Law Article 10.
David M. Storandt Jr., the Clayton town supervisor, and Daniel M. Engert, the Somerset town supervisor, Niagara County, hosted a meeting with a legal team from Lippes Mathias Wexler Friedman LLP, Buffalo, Wednesday night at the Batavia Downs racing track and casino to provide information about the law and to share their experiences throughout the review process for proposed wind energy facilities in their towns. The group held another session about Article 10 in August.
Mr. Engert said during the meeting, the supervisors and their attorneys announced their proposed “coalition of the willing” and its two proposed initiatives to have the state Legislature abolish or revise the law. Mr. Storandt said that Dennis C. Vacco, an attorney from Lippes Mathias Wexler Friedman who represents both towns, proposed the idea of developing a statewide collaborative effort against Article 10, which provides for the siting review of new and repowered or modified major electric generating facilities in New York state.
“It’s a big effort, but when you take on the state,” Mr. Engert said. “You have to hold each other shoulder-to-shoulder and fight Albany for what’s right. It’s an awfully large challenge for one town to fully respond to that.”
The first initiative the supervisors and legal team discussed was to file an Article 78 lawsuit against the state.
Both Mr. Storandt and Mr. Engert said Article 10 violates the state constitution and the right for municipalities to govern themselves because it allows the Board on Electric Generation Siting and the Environment to override local zoning laws that it finds unreasonable for developers. The siting for each project includes five permanent members from state agencies and two ad hoc members from the affected municipalities.
“(Atlantic Wind) clearly doesn’t intend to honor the zoning regulations put in place,” Mr. Storandt said. “This is really a universal problem. Everyone is going to have to deal with this one way or another.”
The second initiative spearheaded by the Somerset Town Board was for town boards throughout upstate New York to pass a resolution requiring The Association of Towns of the State of New York to lobby against Article 10 and the “inadequate” funding it provides for the review process.
Developers are required by Article 10 to set aside intervenor funds that stakeholders can apply for to help cover their legal, engineering and consultation costs during the review, but Mr. Engert said the amount of funds provided, which is typically $1,000 per megawatt, are not enough to cover those costs. The Somerset Town Board set aside $300,000 in their 2017 budget for the potential cost of Apex Clean Energy’s 202-megawatt Lighthouse Wind project.
“(The funding) is woefully inadequate,” Mr. Engert said.
Mr. Engert will deliver the resolution to the association at its upcoming meeting in February. He said that in addition to the Somerset Town Board, which sponsored the resolution, the town boards from Newfane, Wilson, Hartland, Cambria, and Wheatfield, all of Niagara County, passed the resolution. Mr. Storandt said the Clayton Town Board has not made a decision on the resolution. No other town boards from Jefferson County attended Wednesday’s meeting.
“We’re very optimistic,” Mr. Engert said.
Both supervisors shared their experiences and concerns with the Article 10 review processes and the projects proposed by Atlantic Wind and Apex Clean Energy.
In addition to the lack of intervenor funding, Mr. Engert said that his board was concerned about the “next generation” of turbine models proposed by Apex Clean Energy and the lack of state mandated health impact studies. Mr. Storandt said he shared his board’s concerns about the potential aesthetic impacts of Atlantic Wind’s project and their comprehensive plan and wind law revisions.
“The area relies on its aesthetic beauty for tourism,” Mr. Storandt said.
Both town boards were also sued by the developers and had to pay thousands of dollars in litigation fees.
Mr. Engert said Apex Clean Energy filed a lawsuit against the Somerset Town Board in November after the board filed a State Environmental Quality Review Type I action for more environmental impact information. Atlantic Wind filed a lawsuit against the Clayton Town Board for enacting a six-month moratorium on wind energy facility applications.
“It’s essentially a war of attrition,” Mr. Engert said.
Mr. Engert, Mr. Storandt, Mr. Vacco and his legal team will host another meeting in January where they hope to garner more support from other town boards and determine the feasibility of their initiatives.
“We think it’s a worthy initiative that warrants our efforts,” Mr. Engert said.
Mr. Vacco could not be reached for comment.
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