Three Article 78 suits against special use permits for wind development

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By Bob Clark
The Evening Tribune
Sat Jan 31, 2009, 08:13 PM EST

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Cohocton, N.Y. -
The last remnants of lawsuits that threatened to shut down the $230 million wind turbine development in Cohocton flew off like dust in the wind this week.

According to documents provided by the Town of Cohocton, the Appellate Division, Fourth Judicial Department of the state Supreme Court Tuesday dismissed the appeals of three Article 78 lawsuits brought against the town following its approval of special use permits on the project.
According to the documents, the case was through out, “on the ground that appellant has failed to perfectly timely the appeal.”

Town Supervisor Jack Zigenfus was pleased with the decision.

“They actually filed to appeal, but they failed to perfect that appeal,” he said. “Basically, what they did was throw away their right to appeal.”

Jim Hall, head of Cohocton Wind Watch — the anti-wind development group which levied five separate lawsuits against the town and First Wind — , said he did not know about the decision when contacted Saturday.

The appeal stem from three lawsuits filed against the town on Aug. 30, 2007.

The suits attempted to have the issuance of First Wind’s special use permit overturned on 13 points, including the town board and planning board did not follow the appropriate laws for granting the permit, failed to insure the safety of the community and violated the state Open Meeting Law by holding “secret” meetings.

After more than a year — on Sept. 16, 2008 — Steuben County Supreme Court Judge Marianne Furfure dismissed the lawsuits on three points:

l CWW failed to file an injunction against the town and First Wind to halt the development.

l The town’s oversight and approval of the project followed all applicable laws.

l The $230 million project was almost completed, and the impact to the local economy and governments would have been great.

The 50-turbine, 125-megawatt project covers more than 7,000 acres on the hilltops around Cohocton and Atlanta, as well as additional real estate on Brown Hill to the south, where three more turbines are located in addition to the project’s connection to the New York State Electric and Gas power grid.

Developer UPC Wind — the predecessor of First Wind — was interested in developing wind projects in northern Steuben County in 2003. Construction on the project in Cohocton began Sept. 18, 2007, but stopped Sept. 20 because of issues involving the project’s use of county roads. Construction resumed Sept. 27. The first turbine was completed Jan. 3, 2008, and the project began producing a limited amount of electricity by the end of 2008.

The question now is what, if any, recourse do those opposed to the project have.

At this point, Zigenfus believes little can be done.

“From our law firm’s (Albany-based Whiteman Osterman and Hanna, LLP) perspective, they’re done,” he said, adding the deadlines for appeals have passed since the decisions on the special use permits were made in 2007.

Hall said he and other members of CWW are still considering additional legal action against the town and wind developer.

“At this particular time, we’re looking to see what other people in the community are doing and what the other people in our group are doing,” he said. “I would not be surprised to see some kind of legal action.”