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Judge reserves decision on Alle-Catt lawsuit against Freedom
Credit: By Rick Miller | Olean Times Herald | March 6, 2020 | www.oleantimesherald.com ~~
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LITTLE VALLEY – A state Supreme Court judge heard arguments Thursday in a lawsuit filed by Alle-Catt Wind Energy LLC against the town of Freedom.
Attorneys from Hodgson Russ, representing Invenergy, the Chicago-based developer of the proposed $550 million Alle-Catt Wind Farm in northern Cattaraugus and Allegany counties were seeking a clarification of which Freedom wind law is in effect.
Alle-Catt is seeking a decision from Acting Supreme Court Judge Terrence Parker of Allegany County, pointing out that he did not rule on the 2019 Freedom wind law in his October ruling that struck down the town’s 2018 wind law.
Parker reserved decision on the arguments Thursday and indicated his decision would be forthcoming soon.
The judge, in his earlier ruling striking down the 2018 wind law, stated the 2007 wind law would be in effect.
The 2018 wind law, Parker ruled, had been adopted improperly without approval of the Cattaraugus County Planning Board.
Aaron Saykin, representing Alle-Catt, asked the judge to set aside a Freedom Town Board resolution from Jan. 6 that he said attempted to void the 2019 wind law.
Saykin said the 2019 law cannot be voided by passing a resolution as the town board did.
In addition, Saykin wanted to clarify that the judge’s opinion did not void the 2019 law, only the 2018 wind law. “You cannot rule on the validity of a law that wasn’t challenged,” he told Parker.
Parker said his October decision did not rule on the 2019 law. “It was never decided by this court,” the judge said. The issue is now clarified, he added.
Eric Firkel, Freedom town attorney, said the judge’s earlier decision voiding the 2018 law stated the 2007 law was in effect and acknowledged the 2019 law, which was similarly approved. “It is void on its face. It was not passed with proper procedures. The 2007 law is the current law,” Firkel said.
The attorney added that the resolution in question was never meant to void the 2019 local law. “We submit that it was a memorializing resolution, which had no effect. It was merely a statement of the new board’s position.”
Parker cautioned Firkel from straying into politics, which could open the door to Alle-Catt’s position that there is a conflict of interest involving the anti-wind-project Freedom United president and her husband, who is a member of the Freedom Town Board.
“Do you really want to open that can of worms?” he asked Firkel.
Firkel indicated he was not going to address that matter at this time. “The resolution has no effect on the local law,” he said.
Parker indicated he would issue an opinion in the latest Alle-Catt lawsuit soon.
Firkel noted afterward that the difference between the 2007 wind law and the 2019 wind law that he said was improperly adopted is the height of the wind turbines – 450 feet as compared to the nearly 600-foot turbines Invenergy wants to use in the 340-megawatt Alle-Catt Wind Farm.
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