Alle-Catt Wind Energy LLC has filed a lawsuit in state Supreme Court in Cattaraugus County against the Freedom Town Board over it’s 3-2 vote on Jan. 6 to invalidate a 2019 local wind law.
Invenergy, the parent of Alle-Cat Wind Energy LLC has proposed to build a 340 megawatt wind farm in five towns including Freedom and Farmersville in Cattaraugus County. Up to 117 600-foot turbines were proposed by Invenergy.
Opponents called the proposed turbines too big, too close and too loud.
Wind farm opponents won control of the Freedom and Farmersville town boards in the November 2019 election. Both towns have taken steps to void the old wind laws and have proposed new laws that are more protective of area residents.
Alle-Catt Wind Energy and Nathan Westfall, a Freedom leaseholder are plaintiffs in the Article 78 action.
The Freedom Town Board and Geoffrey Milks, a town board member, are named as respondents/defendants in the lawsuit.
Arguments are scheduled to be heard by Acting Cattaraugus County State Supreme Court Justice Terrence Parker on March 5 in Little Valley.
Parker ruled in December 2019 that the 2018 Freedom wind law was void because if was improperly approved due to Open Meetings Law violations and because the law was improperly adopted by the town board in light of opposition by the Cattaraugus County Planning Board.
The Appellate Division of State Supreme Court, Fourth Department, denied an appeal of Parker’s decision last month. Parker also denied an request by Alle-Catt Wind Energy LLC to intervene in the case, as did the Appellate Division.
The lawsuit claims the resolution to annul the 2019 wind law “mischaracterized and misuses the court’s decision.”
Petitioners area seek declaratory judgement from the court, determining the 2019 local law has not been challenged in court or annulled before it was filed Jan. 22, 2019. The local law cannot be repealed by a resolution.
In addition, the lawsuit seeks annulment of the resolution because of a disqualifying conflict – board member Geoffrey Milks is married to the president of Freedom United, which brought the lawsuit seeking annulment of the 2019 wind law.
“This has harmed ACWE, as Mr. Milks’s directives regarding his wife’s lawsuit have resulted in discontinuance of litigation in which ACWE had attempted to participate,” the lawsuit states.
“Mr. Milks never should have participated in any matter before the Town Board concerning his wife’s lawsuit against the town,” it adds.
Freedom United president Stephanie Milks said a 3-2 majority of the Freedom Town Board voted on the 2019 wind law on Jan. 14, 2019, just over a month after Freedom United filed its lawsuit to vacate the 2018 wind law.
“However, they had not notified the public that Local Law 1-2019 even existed,”Milks said. “There was no public hearing, it was not presented by the town board to the town, the meeting was not posted in a paper, Local L 1-2019 was never sent or approved by the Cattaraugus County Planning Board.:”
She said, “Supervisor Randy Lester is even documented 20-30 minutes after the Town Board majority voted it in that he forgot to mention that Local Law 1-2018 is “identical” to Local Law 1-2019. So the town board voted on a law that the public was blindsided by.”
Judge Terrance Parker did null and void both laws in his decision on October 21, 2019, Milks insisted.
“Either way, Local Law 1-2019 would have also been nulled and voided under another lawsuit due to the fact that it violated more procedures and the Open Meetings Law and General Municipal Law in a worse fashion than Local Law 1-2018,” she said.
“It was nothing more than a ploy to exploit the the financial limits of the area residents and the time frame of the judicial system and the Siting Board’s May 8, 2020 deadline to make a decision, Milks said.
Alle-Catt and Whitehead are seeking a judgement from the court – “declaring the 2019 local law was never annulled by this (Supreme) court.”
The petitioners-plaintiffs are seeking:
- “An order and judgement that the 2019 local law was not annulled by the Freedom United decision” and “that the 2007 local law did not become operative by virtue of the court’s annulment of the 2018 local law.”
- “Annulling the resolution as a violation of the Doctrine of Legislative Equivalence.”
- “Declaring Geoffrey Milks has an improper, disqualifying interest with respect to the issues relating in any way to the subject matter in Freedom United and the resolution is invalid”
- “Enjoining Geoffrey Milks from participating in any matter before the Town Board related to Freedom United litigation or its subject matter.”
Eric Firkel, the Freedom town attorney told the Times Herald Friday that the lawsuit had been filed on Jan 31, and served on the town on Monday.
“They are trying to re-argue” Freedom United, Firkel said, calling the Alle-Catt lawsuit a “Hail Mary pass.” He said it was Invenergy’s “third bite at the apple.”
The Freedom Town Board in January passed a resolution acknowledging the 2019 local law as void, Firkel said. “It was done by the Supreme Court decision.”
As far as Alle-Catt’s claim that Geoffrey Milks had a disqualifying conflict over his wife being president of Freedom United, Firkel said, “Geoff Milks does not have a conflict of interest.”
He called the relationship “not disqualifying” and “laughable” particularly in light of the conflicts among town officials or their relatives who stood to benefit from wind leases. “The shoe’s on the other foot,” Firkel said.
Invenergy spokesman Marguerite Wells did not reply to an email seeking comment.
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