VILLENOVA – What appeared to be a done deal is now the subject of a lawsuit.
On Aug. 8, members of the Villenova town board voted unanimously to approve an amendment to the Ball Hill Wind Energy Project, which would allow the 29 planned turbines to reach a maximum – and unprecedented – height of 599 feet. The vote required a supermajority approval, as the Chautauqua County Planning Board decided not to recommend the amendment to the town boards of Hanover and Villenova, where the project is planned. On Aug. 27, the town board of Hanover voted unanimously against the amendment, which kept their six planned turbines at the 495-feet maximum height.
On Sept. 7, 18 Villenova residents, represented by Richard J. Lippes, of Lippes & Lippes in Buffalo, filed a petition with the state supreme court in the county of Chautauqua. In it, they claim that the adoption of the amended wind law and grant of the special use permit “was done contrary to the laws of the State of New York and the ordinances of the Town of Villenova, including the New York State Environmental Quality Review Act(SEQRA), Article 18 of the General Municipal Law and various requirements of both New York State Town Law and the Town of Villenova ordinances.”
Violations of SEQRA include:
¯ Despite requiring a Supplemental Environmental Impact Statement when the town board considered changing the original turbine height of 420 feet to 495, none was required for the change from 495 to 599 feet.
¯ Instead, an Environmental Assessment Form was provided, which based environmental consequences only on a change of 104 feet in height, not the consequences of a 599-feet turbine.
¯ No updated changes were provided regarding noise for 599 feet turbines additional impacts to radio, TV or cell phone reception.
The petition also cited multiple instances of biases and violations of Article 18 of the General Municipal Law including:
¯ “Supervisor Richard Ardillo and Town Board member Kevin Fletcher, who are first cousins, appeared at the Chautauqua County Planning Board and vigorously argued in favor of the amendment to the wetlands law and grant of the Special Use Permit. By indicating and arguing in favor of the project, they both showed their bias in favor of the project, prior to review of any of the SEQRA environmental review documents.”
¯ Town Board Member Nathan Palmer’s mother and father-in-law have a contract with RES, as does his sister-in-law and husband, which the petition claims was never disclosed to the town board or to the public, in violation of Article 18 of the General Municipal Law.
¯ Town Board Member Sarah LoManto has a contract with RES, but did recuse herself from the vote. However, “she remained in the room for the entire discussion at all the meetings concerning the project in violation of Article 18.”
¯ The only town board member who did not show any bias towards the project, Wesley Tessey, resigned from the board on the date the vote was supposed to be taken, with no prior notice, “and was replaced by a previous town board member who was in favor of the project.”
Violations of Villenova town ordinances include:
¯ Actions of the town’s planning board, which was required to make a recommendation on the amendment to the town board. Section 271 (1) of the town law requires that a planning board, if established, must have five to seven members. “However, because of resignations the town planning board had only two members remaining, and those two members recommended approval of the project,” the petition states.
¯ According to the town’s wind law, “No energy facility shall be constructed, reconstructed, modified or operated in the Town of Villenova except in compliance with this article.”
The petition concludes by asking for an injunction to stop construction of the project and void the approvals of the town board “until such time as all of the laws of the State of New York and ordinances of the Town of Villenova have been fully complied with.”
Currently, the request for judicial intervention is pending and full participation has been recorded with the Chautauqua County Clerk’s office. The Villenova Town Board was consented by attorneys Daniel Alan Spitzer and Charles Wayne Malcomb of Hodgson Russ LLP on Dec. 12 and Nov. 26, respectively. Ball Hill Wind Energy, LLC and RES were consented by their attorney Laurie Styka Bloom of Nixon Peabody LLC on Dec. 3.
The full document, a public record, can be viewed on the New York State Courts Electronic Filing site https://iapps.courts.state.ny.us/nyscef/, case number EK12018001343 Michael McGraw et al – v. – Town Board cf The Town of Villenova et al.
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