Town of Howard's Wind Energy Facilities Law Challenged In State Supreme Court by Five Steuben County Familes

The legal challenge, entitled Hosmer et al. v. Town Board of the Town of Howard et al., (Index No. 94468), has been assigned to Steuben County Court Judge Peter C. Bradstreet, and is scheduled for oral argument at 9:30 A.M. on August 14, 2006 in Bath, New York. 

The challenged WEF law empowers the Howard Town Board to grant wind energy project permits within the town, allowing wind turbines to be located within 400 feet of property lines and roads and 1,000 feet from existing residences.  In April 2006, Everpower Global Corporation, a Delaware company that assisted the Town Board in drafting the WEF law, applied with its affiliate, Howard Wind LLC, for a permit under the WEF law to construct and operate the "Howard Wind Power Project".  The "wind farm" proposal includes 25 to 30 wind turbines, with a maximum height (including upright rotor blades) of 492 feet, 10 miles of gravel access roads, 17 miles of buried electrical lines, and a transmission substation on about 2,630 acres of leased property within the town.  Howard Wind LLC has also applied to the Steuben County Industrial Development Agency (SCIDA) for financial assistance for the proposed "wind farm", seeking real property tax abatements and exemptions from sales and mortgage taxes.        

The recently filed court papers ask the court to nullify Howard's WEF law, alleging two grounds for setting aside the local law:  (1) three of the Town's five Councilmen had conflicts of interest which disqualified them from voting on the WEF law; and (2) the Town Board failed to comply with requirements of the State Environmental Quality Review Act (SEQRA) prior to adopting the WEF law.  The pending lawsuit [known as an "Article 78 proceeding"] also asks the court to declare that the Town Board lacked the authority to shorten the time period for parties to challenge a permit granted under the WEF law from the four-month statute of limitations generally applicable to Article 78 proceedings to 30-days.  Lastly, the court papers ask the court, if it if were to conclude that the WEF law should not be set aside, to declare that the Howard Town Board, and not SCIDA, is the proper "lead agency" to conduct the State-mandated environmental review of the proposed Howard Wind Power Project.     

Arthur J. Giacalone, the attorney for the five families, explained the reasons his clients are challenging the Town of Howard's WEF law: 

Two of Howard's Town Councilmen are listed by Howard Wind LLC as "participating landowners" in the proposed wind energy project, as is the brother of a third Town Board member.  Their vote in February 2006 in favor of the WEF law undermined the public's confidence in the legitimacy of the lawmaking process as the self-interest of the Town Board members was given priority over the health and welfare of the residents of the Town of Howard.  The integrity of the legislative process was also tainted when the Town Board allowed the wind farm developer to actively participate in drafting the local wind energy law.  Woefully inadequate "setback" requirements and noise standards were written into the law without first conducting the environmental studies mandated by State law.  Unless and until the Town of Howard wind energy facilities law is nullified and replaced with a stronger set of guidelines, the health of nearby residents, the character and aesthetics of the surrounding rural community, and the area's environment will be in jeopardy. 

The "petitioners" who brought the lawsuit are:  Eric and Kyle Hosmer, Gerald S. Hedman, Richard L. Mariotto, William J. Harkenrider and Nikki L. Harkenrider, and James Lindsay. 

The parties named as "respondents" in the lawsuit are:  TOWN BOARD OF THE TOWN OF HOWARD, STEUBEN COUNTY INDUSTRIAL DEVELOPMENT AGENCY, EVERPOWER GLOBAL CORPORATION, and HOWARD WIND LLC.  
Additionally, the "participating landowners" identified in Howard Wind LLC's permit application have also been named as respondents:  WILLIAM O. HATCH [a member of the Howard Town Board], ROBERT PALMER [a member of the Howard Town Board], DALE S. SMITH, JACK C. BOSSARD [Chairman of the Town of Howard Planning Board], ANDREW J. MATARAZZO, DENEIL E. IVES, JEFFERY L. HOSMER, DUANE KNOLL, SANFORD C. SPARKS, WESLEY J. COOTS, PALMER PROPERTIES, L.L.C., TAMAS J. PETERDY, JONATHAN FOTI, GEOFFREY W. EHLMAN, JOHN TELFER, DEBORAH TELFER, HAROLD M. CARTER, JR., GEORGE F. T. YANCEY, JR., DAVID TSIBULSKY, EDGETT LIVING TRUST, BRUCE F. BOSSARD, and DIANE A. HEFLICH.

Please direct any inquiries or requests for copies of court papers to petitioners' attorney, Arthur J. Giacalone, at (716) 687-1902.  Thank you.