WPEG Petition Filed
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Transcript of WPEG Petition Filed
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PLANNING BOARD OF THE TOWN OF CAPE VINCENT (planning
board or board).
2. The approvals lack substantial support in the record of the board's review
in this matter because the board ignored the findings and opinions of its
own engineering and acoustic consultants regarding the noise that would be
expected from the project, and Wind Power Ethics Group's (WPEG's)
acoustic consultant, and instead the board elected to rely on SLW's findings
and opinions regarding noise impacts.
3. The board's and WPEG's acoustic consultants both rejected not only
SLW's findings, but found that SLW's noise assessment is based on
methods not approved in acoustics.
4. Although two members of the planning board abstained from voting on
the board's environmental findings due to conflicts of interest, up to the
time of the vote these two members were actively involved in the board's
discussion of the SLW project.
5. Although three members of the board voted to approve the findings, one
or more of these three had and have direct or indirect material interests in
the SLW project.
6. The planning board was obligated to but did not coordinate their
environmental impact review with other involved agencies, including the
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Town of Lyme planning board, thereby hindering involved agencies' ability
to develop their own findings. See 6 N.Y.C.R.R. 617.2(s).
7. Notwithstanding that the planning board was provided with credible
scientific information showing significant impacts of SLW's project would
remain, even after a lengthy environmental impact review, the board
disregarded its obligation to avoid or mitigate serious impacts because
doing so would make it too difficult to induce a developer to build a wind
farm. Under these conditions, the Court should find the majority of the
board was biased and unwilling to take a hard look at potential adverse
impacts of its action.
II. PARTIES
8. Petitioner-Plaintiff WIND POWER ETHICS GROUP is an
unincorporated association of Cape Vincent and Lyme landowners
dedicated to protecting the rural amenities and environment of the area. The
association and its members have participated vigorously in the town
boards review of the SLW project, more so than most residents of the
town.
9. All or most members of WPEG own land in relatively close proximity to
the SLW project area and therefore would be harmed by the approvals
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challenged here, differently than the general public.
10. Respondent-Defendant PLANNING BOARD is a municipal agency with
responsibility for permitting certain land uses in the Town of Cape Vincent,
and is lead agency for review of the SLW project pursuant to the State
Environmental Quality Review Act, N.Y. Envtl. Conserv. L. 8-0101 et
seq. (SEQRA), and its implementing regulations.
11. Respondents-Defendants RICHARD EDSALL, TOM RIENBECK,
GEORGE MINGLE, ANDREW BINSLEY, and KAREN BOURCY were
planning board members throughout 2010, including at the time of the
actions complained of here, and are current planning board members.
12. Respondent ST. LAWRENCE WINDPOWER, LLC is a corporation
authorized to do business in New York with offices at 122 South Point
Street in the Town of Cape Vincent, New York. SLW is a subsidiary of
Acciona Energy North America.
13. SLW is a necessary party in this matter because it is its proposed project
that is the subject of the approvals challenged here.
III. VENUE
14. Venue is properly located in Jefferson County pursuant to CPLR 506(b)
as the county in which the Respondent planning board made the decisions
complained of here.
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IV. EXHAUSTION OF ADMINISTRATIVE REMEDIES
15. In January 2007 the planning board scheduled a formal public comment
period on a Draft EIS (DEIS) prepared by SLW for the SLW project
proposal.
16. On March 25, 2009 the board scheduled a public comment period on a
Draft Supplemental EIS (DSEIS) it directed SLW to prepare, inviting
public comments until May 30, 2009.
17. Several supplemental reports and documentation were provided by SLW
after the public comment period on the DEIS and the DSEIS, and these
were incorporated into a proposed Final EIS (FEIS) prepared by SLW for
the board's approval and adoption.
18. WPEG and its members, together with involved and interested agencies
and other members of the public submitted written comments and
supporting documentation on the DEIS, SDEIS, and proposed FEIS,
asserting a number of significant potential adverse impacts would result
from the project as proposed.
19. On September 15, 2010 the board approved and adopted a Findings
Statement supporting its approval of the proposed FEIS pursuant to
SEQRA, and approved and adopted the FEIS as the board's basis for its
findings.
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20. The board's September 15, 2010 findings were filed with the town clerk
on September 29, 2010.
21. The board's September 15, 2010 findings conclude that all identified
significant potential adverse impacts have been avoided or minimized as
much as is feasible to do.
22. The board's September 15, 2010 findings will now be incorporated into
the planning board's site plan review of the SLW project but their substance
will not be revisited during the site plan review. Therefore, no further
remedy is available to the petitioner.
V. FACTUAL BACKGROUND
23. The following is a summary of the facts relevant to this petition.
24. Petitioner members all own land in the Town of Cape Vincent or the
Town of Lyme.
25. The value of petitioner members land lies in its rural setting and the
environmental, recreational and aesthetic amenities that characterize the
land and the community to which it is tied.
26. The physical environment, the recreational practices and the aesthetic and
community values of petitioner members would be harmed by the town
board decision complained of here because this decision is inseparably tied
to a plan to attract large commercial wind farms to Cape Vincent, including
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dozens of industrial wind turbines and miles of access roads and power
lines.
27. There are no industrial wind turbines in Cape Vincent.
28. In 2001 at least two different wind developers began purchasing land use
rights, including from Cape Vincent local officials, in order to secure
sufficient land for a multi-turbine wind energy facility or wind farm in
Cape Vincent and Lyme. These companies are British Petroleum (BP)
and Acciona.
29. On or about July 13, 2002, the planning board approved a request for
approval for the installation of meteorological towers to test wind
conditions in Cape Vincent, and to otherwise assess the prospects for
constructing a wind farm.
30. In 2003, the Village and the Town of Cape Vincent adopted a Joint
Comprehensive Plan (termed the General Plan under the town's zoning
code) that encourages development that has a minimum impact on scenic
natural vistas and tourism assets, and discourages towers or utility facilities.
31. Under Cape Vincent's zoning code, wind farms may be deemed
utilities, in which case their approval is subject to site plan review by the
town's planning board.
32. Cape Vincent's zoning code lacks any specific regulation for wind farms.
33. The SLW project is proposed to be sited in the town's Agricultural
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Residential District, requiring the planning board to condition approval in a
manner that preserves the rural character of the town or, if it finds the
deleterious effects of a wind farm proposal cannot be mitigated because of
the particular conditions on the site it is to occupy, to deny approval.
34. No later than 2006, both BP and Acciona had obtained sufficient land use
rights from local property owners to support their respective wind farm
project proposals.
35. The project area required for the SLW project is approximately 7,900
acres, however this represents only parcels leased or otherwise controlled
by SLW or Acciona for the proposed SLW project.
36. As proposed, and as directed by the planning board, Acciona (SLW) and
BP must utilize a common transmission line in Cape Vincent and Lyme and
must cooperate to implement common use of a single transmission line.
37. On June 13 and 14, 2007, WPEG submitted written comments to the
board on a Draft Environmental Impact Statement (DEIS) provided to the
board by SLW, noting that the project is inconsistent with the town's
Comprehensive Plan, and noting that the DEIS lacks an analysis of
alternative project layouts.
38. In 2007 the nearby towns of Clayton and Orleans began review of a wind
project proposed by Atlantic Wind, LLC, and that review continues today.
39. In 2009 a wind farm began operating on nearby Wolfe Island and plans
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for the expansion of the Wolfe Island wind project were announced.
40. On June 10, 2010, the Cape Vincent Town Board formed a Wind Turbine
Economic Impact Committee to evaluate the effect of siting wind farms in
the town on local employment, private property values, and the town's
property tax base.
41. In January 2009, at the direction of the board, Acciona prepared a
Supplemental DEIS (SDEIS) to address critical comments on the DEIS
submitted by the board's consultants, involved agencies and the public.
42. On March 10, 2009, the board's engineering consultant, based in part on
the board's acoustic consultant's review of the SDEIS conclusions regarding
potential noise impacts of the SLW project, concluded that the analysis of
noise impacts of the SLW project in the SDEIS is not supported by data,
and failed to respond to the board's previous criticisms of the analytic
methods for assessing noise in the SDEIS; and noting that the SDEIS lacks
an analysis of the potential cumulative impacts of several planned or
operating wind farms in the area.
43. On March 25, 2009, the board accepted the SDEIS prepared by Acciona
for purposes of further comment by involved agencies and the public.
44. The board scheduled a public comment period on the SDEIS in May and
June 2009.
45. During the comment period in May 2009 involved agencies and the
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public, including WPEG and its members, submitted to the board additional
written comments and technical supporting information, including an
independent analysis by WPEG acoustic engineer of background sound
levels in the vicinity of Cape Vincent, noting that properly measured
background sound levels characteristic of the community are substantially
lower than background sound levels asserted in the SDEIS, and explaining
the difference as resulting from several methodological shortcomings.
46. SLW's acoustic consultant, WPEG's acoustic consultant, and the board's
acoustic and engineering consultants agreed that the SLW project's noise
impacts should not exceed 6 decibels above existing background sound
levels, a standard derived from guidelines for assessing noise impacts
issued by the New York State Department of Environmental Conservation
(NYSDEC).
47. Comments submitted in May 2009 by the public, including by Petitioner,
also provided substantial evidence from realtors and other experts in real
estate valuation supporting the conclusion that the analysis in the SDEIS of
the potential for adverse impacts on property values in the community that
would result from the SLW project is based on widely discredited analysis
prepared for the wind industry.
48. WPEG's acoustic consultant, and the board's acoustic and engineering
consultants also commented that cumulative impacts on wildlife and other
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local environmental amenities of all those wind farms planned and
operating in the area must be analyzed in any final EIS (FEIS).
49. In June and July 2010 the planning board's consultant was still
identifying deficiencies in the proposed FEIS in comment letters to SLW,
regarding impacts to roads, residential wells, the acoustic environment, and
land and water that would be disturbed by construction, among other
potential adverse impacts, and in response to these comments SLW
provided supplemental responses, supporting information and changes to
the proposed FEIS that had not been included in the SDEIS.
50. However, for several areas of concern the board allowed SLW to develop
plans detailing potential impacts and how they would be mitigated during a
site plan review subsequent to the approvals, or even following the
conclusion of site plan review.
51. The board did not provide any formal comment period during which
involved agencies and the public would be invited to comment on the
supplemental materials submitted by Acciona after June 2009.
52. On August 13, 2010, Petitioner submitted additional written comments
addressed to changes in the DEIS and SDEIS proposed since the May-June
2009 public comment period.
53. On August 17, 2010, the Town of Lyme planning board as an involved
agency faxed to the planning board additional written comments addressed
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to changes in the DEIS and SDEIS proposed since the May-June 2009
public comment period.
54. On or before August 17, 2010, the Town of Cape Vincent Wind Turbine
Economic Impact Committee submitted comments to the board criticizing
the analysis of potential impacts of the SLW project on property values and
the town's tax based proposed FEIS.
55. On or about August 18, 2010, at a regularly scheduling meeting, the
planning board accepted SLW's proposed FEIS as complete but took no
other action on the FEIS or the SLW project.
56. At the September 8, 2010 meeting of the planning board, the board
chairman opened mail that included Petitioner's and others' comments
received in August, as well as correspondence going back as far as May, but
the chairman directed that since the May-June 2009 public comment period
had closed, these materials be put in a do nothing file, meaning they
would be disregarded and never reviewed by the board.
57. On or about September 15, 2010, upon a 3-2 vote, the planning board
approved the FEIS, adopted the FEIS in support of its conclusions about the
SLW project, concluded that all SEQRA requirements have been met, and
approved findings purporting to be a reasoned explanation of the basis for
its action.
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FIRST CAUSE OF ACTION
Failure to take a hard look at potential environmental impacts
58. Petitioner repeats and realleges the prior paragraphs as if fully set forth
here.
59. The planning boards approval of findings regarding the SLW project is
an action subject to SEQRA. Envtl. Conserv. Law (ECL) 8-0105(4).
60. Prior to deciding whether to approve an action subject to SEQRA,
environmental factors shall be considered, (ECL 8-0103(7)), and the
lead agency shall act and choose alternatives which, consistent with social,
economic and other essential considerations, to the maximum extent
practicable, minimize or avoid adverse environmental effects, including
effects revealed in the environmental impact statement process. ECL 8-
0109(1).
61. A planning board considering an action subject to SEQRA must, among
other things, set forth in writing a reasoned elaboration of the basis for
the action and provid[e] reference to any supporting documentation. 6
N.Y.C.R.R. 617.7(b)(4).
62. The reasoned elaboration of the basis for the action referred to in the
previous paragraph is commonly termed a findings statement. See 6
N.Y.C.R.R. 617.2(p).
63. The environmental impact state process for the SLW project, including
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comments and supporting information provided to the board by interested
and involved agencies and the public, revealed that serious adverse impacts
to the acoustic environment, scenic resources, property values, wildlife and
community character remained, but the FEIS and the board's findings fail to
consider measures to avoid or minimize such impacts.
64. In approving the SLW project findings, the board relied on future noise
complaint procedures and other future, as yet unavailable evaluations and
mitigation of effects of the project once operational without, however,
analyzing the effectiveness of such future measures.
65. Therefore, the action of the town board was in violation of lawful
procedures, was unreasonable, and was made without sufficient basis in
substantial evidence, and should be overturned.
SECOND CAUSE OF ACTION
Failure to Undertake Coordinated Review Pursuant to SEQRA
66. Petitioners repeat and reallege the prior paragraphs as if fully set forth
here.
67. Designation of a Type I action by one involved agency requires
coordinated review by all involved agencies. 6 N.Y.C.R.R. 617.4(a)(2).
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68. If an agency determines that the action may have a significant adverse
impact on the environment, it must then coordinate with other involved
agencies. 6 N.Y.C.R.R. 617.6(b)(4)(ii).
69. A notice of completion of an EIS . . . must be filed with . . . all involved
agencies. 6 N.Y.C.R.R. 617.12(b)(1).
70. An EIS includes a Draft EIS as well as a Final EIS. 6 N.Y.C.R.R.
617.2(n).
71. The Cape Vincent Planning Board at the beginning of its review of the
SLW project proposal designated the proposal as a Type I action pursuant to
SEQRA.
72. The Cape Vincent Planning Board at the beginning of its review of the
SLW project proposal determined that the project as proposed may have
significant impacts on the environment.
73. The Lyme Planning Board is listed in the DEIS and the FEIS for the
SLW project as an involved agency pursuant to SEQRA.
74. However, the Cape Vincent Planning Board failed to undertake
coordinated review with the Lyme Planning Board as evinced, for example,
in the Cape Vincent Planning Board's neglect to provide a copy of the FEIS
or any notification that a proposed FEIS was accepted as complete, thereby
failing to provide the Lyme Planning Board with a meaningful opportunity
to review, comment, and make recommendations or otherwise coordinate
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its review with Cape Vincent.
75. The Cape Vincent planning board published notice of its acceptance of a
complete FEIS for the SLW project in NYSDEC's Environmental Notice
Bulletin on September 1, 2010.
76. However, actual notice of acceptance of the FEIS was required to be
filed with the Town of Lyme Planning Board because the Lyme board is an
involved agency; it is not sufficient that the notice was published and
available to the general public. 6 N.Y.C.R.R. 617.12(b)(3).
77. The Cape Vincent Planning board did not provide the Town of Lyme
Planning Board with notice of acceptance of the FEIS or a copy of the FEIS
for the SLW project.
78. Therefore, the action of the town board was in violation of lawful
procedure, and should be annulled.
THIRD CAUSE OF ACTION
Failure to consider public comments pursuant to SEQRA
79. WPEG and the Town of Lyme planning board submitted comments on
the proposed but not yet accepted the FEIS for the SLW project on or about
August 17, 2010, one month prior to the Cape Vincent planning board's
acceptance of the FEIS.
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80. The FEIS for the SLW project is identical to the proposed FEIS on which
WPEG and the Town of Lyme planning board commented on August 17.
81. Once the board accepted the FEIS for the SLW project, it was required to
afford agencies and the public a reasonable time period (not less than 10
calendar days) in which to consider the final EIS before issuing its written
findings statement. 6 N.Y.C.R.R. 617.11(a).
82. However, the Cape Vincent planning board did not review, read or
otherwise consider in any way the August 17 comment letters submitted to
it by WPEG, the town's Wind Turbine Economic Impact Committee, and
the Town of Lyme planning board.
83. Nor did the board provide notice of acceptance of the FEIS or a copy of
the FEIS to the Lyme planning board.
84. Because the Cape Vincent planning board deprived the public and an
involved agency of the opportunity to present comments, expert testimony
or documentary evidence or examine and comprehend the submissions
made by SLW in 2010, the board's adoption of the findings statement was
done in violation of lawful procedure and should be annulled.
FOURTH CAUSE OF ACTION
Failure to consider cumulative impacts
85. Petitioners repeat and reallege the prior paragraphs as if fully set forth
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here.
86. Before the Cape Vincent planning board accepted and adopted an FEIS
for the SLW project, it was aware that a commercial wind energy project
was operating nearby on Wolfe Island; was aware of plans to expand the
Wolfe Island project; was aware that another commercial wind energy
project was under review by the nearby towns of Orleans and Clayton; and
was aware that BP had submitted an application to the board for another
proposed commercial wind energy project in Cape Vincent and Lyme.
87. The SEQRA regulations required the board to consider whether, in light
of planned and operating wind farms near the SLW project area, the
development of another would have significant cumulative impacts. 6
N.Y.C.R.R. 617.7(c)(1)(xii), 617.7(c)(2).
88. Written comments submitted to the board by WPEG, involved agencies
and other members of the public specifically urged the board to consider
the potential cumulative impacts the SLW project may have in light of the
four wind energy projects operating or proposed in Wolfe Island, Clayton,
Orleans, Cape Vincent and Lyme.
89. Because the Cape Vincent planning board did not consider the potential
cumulative impacts of the SLW project prior to adopting findings
supporting its approval of the project FEIS, its approval was done in
violation of lawful procedure and should be annulled.
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FIFTH CAUSE OF ACTION
Conflict of interest violations
90. Petitioners repeat and reallege the prior paragraphs as if fully set forth
here.
91. Pursuant to General Municipal Law, 809[2], where an application for
approval of a project is involved, a municipal officer or employee is
deemed to have an interest in the applicant when he, his spouse, or their
brothers, sisters, parents, children, grandchildren, or the spouse of any of
them is a party to an agreement with such an applicant, express or implied,
whereby he may receive any payment or other benefit, whether or not for
services rendered, dependent or contingent upon the favorable approval of
such application, petition or request.
92. Violation of a specific section of the General Municipal Law is not
critical to a finding of an improper conflict of interest. An actual conflict of
interest, or the significant appearance thereof is sufficient to require
compliance with the disclosure provisions of General Municipal Law
809, and failure to provide such disclosure under those circumstances is a
defect requiring invalidation of the approval.
93. Because one or more of the voting members of the planning board voting
on the approvals on September 15, 2010 had a prohibited appearance of
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conflict of interest, or had actual conflicts of interest at the time of their
September 15, 2010 votes approving the SLW project FEIS, the vote was
defective requiring invalidation of the approval.
SIXTH CAUSE OF ACTION
Violations of the Town of Cape Vincent Code of Ethics
94. As authorized by General Municipal Law 806, the Town of Cape
Vincent has adopted a local code of ethics imposing rules of ethical conduct
in addition to those imposed by Article 18 of the General Municipal Law,
including the requirement that members of the town board publicly
disclose on the official record the nature and extent of any direct or indirect
financial or other private interest he has in such legislation.
95. The towns Code of Ethics also precludes town board members from
holding any investment directly or indirectly in any financial, business,
commercial or other private transaction, which creates a conflict with his
official duties.
96. On information and belief, a majority of the Cape Vincent planning board
hold direct or indirect, financial or non-financial private interests in wind
farm development assets in the town, or their family and friends have such
interests such that any reasonable person would conclude under the
circumstances there is a significant appearance of conflicts of interest in
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most town board members.
97. Because a majority of the planning board hold or expect in the future to
hold investments in land that would be used for wind farm development in
Cape Vincent, the planning boards September 15, 2010 votes approving
the FEIS and certifying that all identified adverse impacts that may result
from the project have been adequately avoided or minimized were defective
requiring invalidation of the approvals.
WHEREFORE, Petitioner-Plaintiff demands judgment against Respondent
PLANNING BOARD OF THE TOWN OF CAPE VINCENT and its members:
(1) Declaring that Respondents decision approving the SLW project Final EIS
violates SEQRA and is invalid and null and void;
(2) Ordering Respondents to comply with SEQRAs procedural mandates,
including but not limited to coordinating its review of the SLW project with
the Town of Lyme, as mandated by SEQRA;
(3) Declaring that the September 15, 2010 approvals are null and void for
failure of one or more of the voting members to recuse themselves from
voting on the approvals;
(4) Awarding costs and disbursements and attorney fees of this proceeding;
(5) And ordering such other and further relief as the Court may deem just and
proper.
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DATED: October 26, 2010
Allegany, New York
____________________________________Gary A. Abraham, Esq.
Attorney for Petitioner-Plaintiff170 No. Second Street
Allegany, New York 14706
716-372-1913
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VERIFICATION
STATE OF NEW YORK )
COUNTY OF JEFFERSON ) s.s.:
JOHN BRYNE, being duly sworn, states that he is the Chairman of Wind
Power Ethics Group (WPEG); that on behalf of WPEG as well on his own behalf he
states that the annexed Petition is true to his own knowledge, except as to matters therein
alleged upon information and belief, and as to those matters he believes it to be true.
_____________________________________________________JOHN BYRNE, CHAIRMAN
WIND POWER ETHICS GROUP
Subscribed and sworn to before me this ____ day of October, 2010.
_____________________________________
Notary Public