Freedom wind lawsuit adjourned until April 30 in state Supreme Court

Attorneys ask for time to review 360-page discovery document

LITTLE VALLEY — A state Supreme Court judge adjourned a challenge Thursday to the 2018 Town of Freedom Wind Law until April 30.

Judge Terrence M. Parker of Allegany County was assigned to the Freedom United lawsuit against the Freedom Town Board and Supervisor Randy Lester after Supreme Court Judge Jeremiah J. Moriarty III had recused himself.

Parker noted email receipt Wednesday of a 360-page discovery response from the Freedom Town Board to the Freedom United lawsuit filed by president Stephanie Milks. It contained documents attorneys Gary Abraham and Ginger Schroder had sought in the discovery portion of the lawsuit.

Freedom United is trying to force the Town Board to rescind its new wind law and resubmit it to the Cattaraugus County Planning Board along with a complete Environmental Assessment Form. The law was passed on a 3-2 vote.

The 2018 law, which was intended to supercede a a 2007 wind law, would increase the height from 450 to 600 feet as requested by Invenergy, the developer of the proposed 340 megawatt Alle-Catt Wind farm with 117 industrial wind turbines in the towns of Freedom, Farmersville, Centerville, Rushford and Arcade.

Asked by Parker whether he wished to comment, Abraham said he would have to digest the documents.

“We tried to give them everything they asked for judge,” said James McAuley, attorney for the Freedom Town Board.

“We may want to amend our complaint after digesting their response,” Abraham told the judge.

The county Planning Board had initially approved the town’s wind law changes. When it was later pointed out that the Environmental Assessment Form was incomplete, Planning Board members voted to rescind their earlier approval.

Additionally, the Planning Board has noted the industrial wind turbines did not fit in with the county’s rural character highlighted in the county’s Comprehensive Plan.

Without the Planning Board’s approval, a supermajority, or 4 of the 5 board members would have to approve the law. The town could also make revisions and hold another public hearing before re-submitting it to the Planning Board.

The new Freedom law also set a 1.1 times the tip height to the nearest property line and 1,200 feet from a residence. Freedom United is seeking a 3,000-foot setback from property lines, a 450-foot height limit and 40 dBA sound limit at a residence.

On Thursday, Parker instructed Abraham and McAuley to submit briefs by March 29, and until April 15 to respond to the briefs.

Both parties will meet in Parker’s courtroom in LIttle Valley at 2 p.m. on April 30 for any oral arguments.

McAuley said outside the courtroom that the town law is necessary “to give the town the opportunity to get host community money.”

Without the law, under Article 10, the state Siting Board would have the final say over Invenergy’s $570 million proposal stretching over 20,000 acres in three counties, said Lester, the supervisor.

The 600-foot turbines are “state-of-the-art,” Lester added. The law is designed “to protect citizens and make sure we get the host money.”

Alle-Catt is proposing $3.2 million a year in community host fees, P.I.L.O.T.s and taxes and $2.7 million a year in landowner lease payments. With 35 turbines, Freedom would see $450,000 in annual host fees and P.I.L.O.T. payments. School districts and the counties would get a share of the P.I.L.O.T. payments as well.

Invenergy announced it had filed an application with the state Board on Electric Generation Siting and the Environment on Dec. 18. Last week, the Siting Board staff released a 21-page letter of deficiencies in the application. A 12-month review period commences once the Siting Board deems the application complete.