Professional Documents
Culture Documents
COUNTY OF JEFFERSON
_________________________________________________
Petitioner-Plaintiff,
against -
Respondents-Defendants, and
Respondents-Defendant
__________________________________________________
The allegations in the petition and complaint (except for the ethics complaint) are
substantiated by the Certified Record and record materials that were omitted from the
Certified Record. Respondents’ reliance on the length of the review process, the
voluminous nature of the Certified Record, and the length of the Planning Board’s 120-
The affidavits submitted herewith by Michael Bell and John Byrne demonstrate
sufficiently that Petitioner-Plaintiff Wind Power Ethics Group (“WPEG”) has standing in
this matter.
The size of the Certified Record and the complexity of its organization, its
incompleteness, (see Abraham Aff.; Schneider Aff.), and the season of the year have
conspired to restrict the ability to fully test Respondent Planning Board’s (the “board”)
findings statement, the basis for the action complained of here, (CR 5920-6033), against
the evidence in the record within the time available. This Brief focuses on the board’s
failure to meaningfully consider the magnitude of the noise impacts that would result
from Respondent St. Lawrence Windpower’s (“SLW”) proposed wind farm project, and
the failure of the board to consider any mitigation of those impacts until later, after the
project is fully approved. These facts form the primary basis for WPEG’s claims under
the State Environmental Quality Review Act (“SEQRA”). WPEG’s ethics claim is also
briefly outlined. However, respectfully, it is hoped that the Court will see in the facts
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discussed grounds for seeking supplemental briefing from Petitioner-Plaintiff to more
A. The reduction in the size of the SLW project was never designed and in fact fails
to mitigate the substantial adverse impacts of the project, nor is the smaller size of
the project the result of any analysis of alternative wind turbine locations.
There is no evidence that the reduction in size of the project from 97 to 51 turbines
was imposed by the Planning Board to avoid, minimize, or mitigate any adverse impacts.
To understand why the project size was reduced so dramatically requires a brief excursion
at the outset into the world of New York electric corporation regulation.
The SLW project size was reduced primarily because the rules of the state’s Public
Service Commission (“PSC”) changed during the course of the project review, imposing
onerous requirements on wind farms to demonstrate they would not displace hydropower,
natural gas plants or other renewable sources of electric generation, including other wind
Methodology, Order Prescribing Study Methodology, Case No. 09-E-0497, October 20,
Public Convenience and Necessity from PSC, required to commence operations, that the
project proponent can deliver energy to electricity load centers without displacing other
3
energy sources.
SLW would have anticipated the October 20, 2009 Order because the Order was
foreshadowed by a previous order in which PSC stated: “Where new proposed renewable
forcing a steam host to employ auxiliary steam production (with loss of the efficiency
and quantified, and discussed in the context of the balancing of impacts and benefits
resulting from siting the new generation facility.” Id. at 1 (quoting PSC, Marble River,
LLC, Order Granting Certificate of Public Convenience and Necessity and Providing for
Lightened Regulation, Case 07-E-1343, June 19, 2008, at 14). As noted in the October 20,
2009 Order, on September 9, 2008, PSC applied the new demonstration requirement for
the first time to an application by wind developer Iberdrola to acquire New York electric
According to the PSC Order, renewable generators such as wind farms may not be
able to actually deliver their “available energy output . . . without displacing other
electricity supplier that “cannot control its output to follow schedules as directed by the
System Operator,” and are distinguished from “price-setting” generators supplying on-
demand energy. Id. 4.n.9. “In the extreme, if the only generators dispatched within an area
are ‘price-takers’ (such as nuclear, hydro and wind plants), the LBMP [location-based
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marginal prices paid for renewable-power energy] may drop to zero or even negative
values.” Id. at 4.n.8. In addition, because in New York “wind development occurred in a
very small area(s) geographically” and these areas depend on transmission facilities that
“carry significant amounts of energy produced by hydro and combined cycle [natural gas]
plants,” the State’s goal of achieving “25% of energy consumed to be from renewable
sources by 2013” could be jeopardized. Id. at 5-6. “This goal will not be realizable if the
energy from new renewable resources just replaces the energy produced by existing
To ensure that energy output will be actually delivered and not be lost in
transmission bottlenecks, and will not just displace other renewables, the Order now
requires that a renewable energy generator show that transmission facilities exist between
the generator and an area with sufficient load demand. Id. at 3-4 and n.7. Without such a
required from the PSC in addition to any other state and local permits. Importantly, PSC
regulates the siting of electric generating capacity over 80 megawatts (“MW”); wind
power plants with a lesser capacity are deemed “alternate energy production facilities”
outside PSC’s jurisdiction. PSL §§ 2(2-b), (13). Cf. CR 3412 (PSC corresp.).
Accordingly, to avoid the new deliverability study requirement, wind farms around the
By April 8, 2009, SLW had reduced the number of turbines for the SLW proposal
5
to 53, with result that design capacity fell to 79.5 MW, avoiding PSC jurisdiction. CR
3603. The final proposal reduced the number of turbines to 51, but there is no evidence
that this was done to avoid or minimize noise impacts. Indeed, some turbine locations
remain unacceptably close to some Cape Vincent residents, unchanged from the inception
of the proposal, and the FEIS even added one turbine close to the Bell residence that had
not been considered in the SDEIS. Cf. Bell Aff. ¶ 7. In fact, the FEIS predicts sound
levels will regularly reach 42 dBA at the Bell property, an excessive increase above the
existing background sound level (which is about 25 dBA), as more fully discussed below.
Finally, there is no evidence to suggest the size of the SLW project was reduced as
the result of an analysis of alternatives to the manner in which the project’s individual
wind turbines were sited. See 6 N.Y.C.R.R. § 617.9(B)(5)(v) (requiring the FEIS to
include a description and analysis of reasonable alternatives to the action considering the
objectives and capabilities of the project sponsor). While, as discussed more fully below,
according to the Planning Board’s environmental consultants the project’s potential noise
impacts remain serious and significant, even after all project changes agreed to during the
review process, the record is silent on whether alternative turbine sites, alternative turbine
sizes,1 or other alternatives for the project’s layout are available and feasible.
1
For example, it is today uncommon for wind farm proposals to utilize 1.5 megawatt
(“MW”) wind turbines. Modern land-based utility-scale wind turbines have capacities of 2.5 MW
or higher. For example, a currently proposed wind farm in western New York would utilize 2.5
MW turbines, according to the project Draft EIS. See Everpower, Allegany Wind Power Project,
Draft Environmental Impact Statement, <http://www.alleganywindfarm.com/deis.htm>, at 1
(“The Project will consist of approximately 29 wind turbines, each with a maximum or
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B. The Board did nothing to mitigate significant adverse noise impacts identified in
substantive requirements on the lead agency to mitigate identified impacts. N.Y. Envtl.
N.Y.S.2d 440, 447 (4th Dept. 1980), the court stated: “Thus, the regulations in accord
with the statutory provisions of SEQRA, make clear that an agency in approving an action
must make a written finding that it has imposed whatever conditions are necessary to
minimize or avoid all adverse environmental impacts revealed in the EIS [environmental
relocation of facilities should be considered to achieve this goal. Sun Co. v. Syracuse
Indus. Develop. Auth., 209 A.D.2d 34, 625 N.Y.S.2d 371 (4th Dept. 1995) (citing Town
“The EIS, the heart of SEQRA, is meant to be more than a simple disclosure
to alert responsible public officials to environmental changes before they have reached
445. Noise impacts are an element of the environment that must be subjected to a hard
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look by the lead agency under SEQRA. 6 N.Y.C.R.R. §§ 617.2(x). In this case, the
board’s environmental consultants concluded that, once the SLW project becomes
operational, residents living in quiet rural areas in and around the project area will suffer
excessive noise impacts. However, the Planning Board approved the Final EIS (“FEIS”)
without imposing any conditions on the project’s ability to create such noise impacts.
SEQRA.
Board and SLW’s engineering consultants exists regarding noise impacts but only a
portion of that correspondence has been made part of the Certified Record (“CR”). See
CR 4256-4290 (corresp. beginning May 14, 2010). See Abraham Aff., attachment
and following. Taken as a whole, the engineering correspondence shows that serious
objections to the basic approach to noise assessment taken by SLW’s consultants were
expressed by the board’s consultants from the beginning of the review of the SLW project
and never resolved. Instead, SLW’s consultants refused to modify their approach in
response to objections and concerns provided by the Planning Board’s consultants. Cf.
the time a final EIS was presented to the Planning Board, the two sides’ consultants
remained fundamentally at odds regarding their conclusions about how much noise the
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project would make. Despite their own consultants’ conclusions that noise impacts would
remain significant even after changes to the size of the project, and that SLW’s
conclusions to the contrary are based on flawed assumptions and methods, the Planning
The Planning Board’s lead consultant Kris D. Dimmick, P.E. of Bernier Carr
(“CTA”), while SLW relied on its acoustic consultant Hessler Associates and its principal
David M. Hessler. Cf. Supp 13-18. It is important to note that CTA’s and BCG’s
assessment. Generally, CTA and BCG find that Hessler improperly elevates the estimated
background level at the locations where existing sound levels were measured on the one
hand, and improperly discounts his estimate of the sound levels that would be generated
by SLW project. Understanding the consultants’ differences regarding these two sides of
the noise assessment equation is crucial because the level of noise impact, both sides
agree, is determined by comparing a proper baseline, existing sound level to the expected
It is also important to note that, notwithstanding their differences over the proper
background sound levels. See Respondent Planning Board, Memorandum of Law (“PB
9
MOL”), Ex. B, at 14. See also Supp 40 (noting “the applicant’s previous commitment to
develop their project within that guideline. This guideline recommends less than 6db over
background.”). Such increases, like any other potentially “significant” impact, call for
approval. See CR 6012. Compare the lengthy and detailed plans in the FEIS to mitigate
with TV broadcast signals, CR 5031-5032; and protection of water wells disturbed during
construction, CR 3625.
how significant expected noise impacts of the SLW project could be.
First, CTA disputed Hessler’s theory that wind-generated noise at ground level,
caused by the rush of air through trees and brush for example, would normally “mask” the
sound of wind turbines. CTA advised that when measuring background sound, if the
microphone is installed in a tree, “the microphone should be located away from branches
or twigs that when excited by a breeze might make noise. . . It is our preference that
microphones also be located away from transient noise sources such as walkways and
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driveways.” Supp 16. The reason for these methods, as CTA later explained, is that the
background sound level “reflects the constant sound level occurring between transient
“ambient levels within the site area as a function of wind speed.” Supp 87 (comment 7).
This objective was ultimately judged “not appropriate” by CTA, which advised that
Hessler’s assumption that wind speed is tied to background noise “have lead [sic] to poor
correlation between the two,” and recommending that “wind velocity be ignored.” Supp
49 (comment 2). See also Supp 37 (Dimmick: “The data presented [by Hessler] does not
support the conclusion of a relationship between wind speed and ground noise”); and
Supp 99 (“There is no conclusive relationship between the L90 [background] sound level
and wind speed,” and at any rate an elevated background level “may be attributed to a
wind-induced event at a given wind speed” only about “50% of the time.”); and CR 4288
sound levels in quieter area.”). Cf. New York State Dept. Envtl. Conserv. (“NYSDEC”),
Assessing and Mitigating Noise Impacts (2001), PB MOL, Ex. B, at 12 (“L (90) is often
These objections to Hessler’s methods had been expressed by CTA from the very
beginning of its review. On February 6, 2008, CTA commented on the noise assessment
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in SLW’s draft EIS (“DEIS”), noting that research by van den Berg concluded that “at
night, compared with the day, the upper elevation wind speeds are skewed higher than
wind speeds at lower elevations” and therefore by relying on wind speed measurements
taken at “60 meters above grade” and then “adjusted” to 10 meters above grade, Hessler
had obscured “a greater difference between the wind turbine sound and background
Based on Hessler’s raw data, CTA found at Hessler’s measurement locations there are
times when there is “almost a reverse correlation between wind speed and background
sound.” Supp 23. CTA concluded on the basis of the raw data that an estimation
procedure that assumes a positive correction “should not be used because it does not
Much later, following a series of exchanges in which Hessler and SLW resisted
changing their modeling approach, CTA elaborated on this objection, finding that even
Hessler acknowledged that “wind shear” at night can be expected to increase the impact
of project noise compared to his estimation results. Supp 103-104. Wind shear occurs
when the elevated air mass at wind turbine hub height moves at wind speeds sufficient to
operate the turbines, but is detached from the ground level air mass which remains still.
The phenomenon is associated with the cooling of the elevated air mass at night,
compared to the ground level atmosphere. In that circumstance, background sound levels
at ground level are very quiet because there is neither wind-induced noise nor are ambient
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noises associated with daytime natural or man-made activities present. Supp 23 (CTA,
comment 3). The result, acknowledged by SLW, is “an increase in operational noise and
ability to propagate through the atmosphere increasing its relative perceptibility.” Supp
103.2 The Planning Board’s consultants concluded: “Acknowledging that [i.e., wind
shear] is the critical sound condition but not using it seems to be a tough position for
Even then, however, when there is little or no wind speed at a height of 10 meters, the
FEIS concludes that background sound levels can be expected to be around 25 dBA. CR
4676 (Fig. 2.2.1, reporting the “L 90 ” measure). See also Supp 72 (table); Supp 72-73
(CTA, analysis of Hessler’s raw data results in a background sound level of 25 dBA,
More particularly, CTA found that background sound level was related to wind
speed at the locations measured by Hessler only between 39% and 52% of the time. Supp
82 (table). In other words, about half the time, there is no relationship between wind
2
This was an important criticism of Hessler’s approach voiced by WPEG early in the
review process. In comments submitted to the Planning Board on February 9, 2010 (omitted from
the Certified Record), WPEG member Clif Schneider discussed van den Berg’s research based
on half-hour measurements at a German wind farm over the course of an entire year showing
wind shear occurs about half the time in the temperate zone around the world, and more often at
night. See Schneider Aff.
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Hessler elected to do), (Supp 84), and background sound level. See Supp 47 (CTA,
commenting on SDEIS page 3-162). This is consistent with an earlier criticism by CTA:
“The analysis method employed by Hessler Associates would underestimate wind turbine
sound impacts half the time on average, and considerably more often at quieter receptor
CTA also found fault with Hessler’s reliance on an average background sound
level across the entire project site, advising instead that background sound levels be
locations would be quieter, some less quiet, “leading to a more refined assessment.” Supp
49. SLW was directed to eliminate the assertion in the SDEIS, that sound levels at points
average among the locations. Supp 43. Hessler nevertheless persisted in asserting that
single project area background sound level, and this calculated sound level should be
relied upon for the baseline against which project sound emissions would be assessed.
Supp 87 (comment 7). In the FEIS Hessler reported only mean values from all monitoring
Clearly, the consequences of accepting CTA’s advice would have included a hard
look at the siting of individual wind turbines within the project area, restrictions on
14
operations of some turbines closest to residential locations or other mitigations available
to offset unavoidable noise impacts at certain very quiet locations. However, none of
these things were ever considered. See Supp 40 (Dimmick: “Several areas [of the SDEIS]
talk about potential mitigating efforts in the future, however there was limited discussion
specific turbines,” and noting SLW has provided “no response” to this concern). Even the
FEIS recommends that, for “receptors” who would experience a “cumulative increase” in
noise from more than one turbine greater than 6 dBA, “some form of mitigation should be
investigated.” CR 4680
CTA also found fault with the manner in which Hessler calculated the sound level
that would be emitted by turbines. Specifically, CTA found that Hessler had employed a
reduces the modeled sound level by assuming the ground would attenuate or reduce the
sound over distance. Supp 36 (CTA comment 3, “they should have ‘turned ground effect
off’”). See also Supp 39 (Dimmick, noting “no response” to this comment from SLW).
Nevertheless, the sound study in the FEIS continues to apply a ground attenuation factor
to model the calculated impact sound level. CR 4684-4685. Even then, the model shows
mean noise levels at residences would be as high as 45 dBA. CR 4685 (Fig. 3.4.1). See
also CR 4686 (“the Project sound level under normal circumstances is likely to have a
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variance of +/-5 dBA from the mean predicted level”); and Supp 44 (directing the SLW
to eliminate from the final version of the sound study the following: “Field experience
indicates that these unavoidable and inevitable excursions are infrequent, and short-lived.
For the vast majority of the time, sound levels will be close to the mean predicted
value.”).
Even crediting Hessler’s conclusion, that sound levels at residences will reach 45
dBA, results in clearly excessive impacts according to the Planning Board’s consultants.
As noted previously, CTA found that background sound levels in the project area are
about 25 dBA. Supp 73. NYSDEC guidelines classify impacts descriptively according to
the degree of increase over background. See PB MOL, Ex. B, at 15 (Table B). According
sound level of 25 dBA could be intolerable. Id. Even increases of 10 decibels would be
The objections to Hessler’s methods stated by CTA, BCG and the Planning
Board’s special counsel remained the same up to the end of the environmental review, as
reflected in those portions of the correspondence included in the Certified Record. Thus,
on July 15, 2010, CTA reiterated its opinion that Hessler’s methods fail to provide a basis
16
for determining the “near-minimum background sound levels” both sides agreed should
be used as the baseline for evaluating project sound impacts. CR 4287. While Hessler
sound levels, tied to wind speeds under an assumption that background sound increases
with 40-meter wind speeds modeled down to 10 meters, (CR 4275-4285, 4672-4697),
CTA continued to recommend to the Planning Board that ambient levels be determined
based on “Wintertime L 90 data” without regard to wind-induced sounds, “an approach that
recognizes low community background sound levels above which the NYSDEC impact
threshold [for “intrusive” noise] of 6 dBA is assessed.” CR 4287. Using this approach,
CTA concluded that project noise would actually exceed the threshold by as much as 6.1
decibels. Id. (table). This is in accord with the Planning Board’s ultimate findings: “This,
of course, would mean that the [sic] were Hessler’s estimate of turbine sound at a specific
location to just meet the NYSDEC recommended criterion, Hessler’s estimated turbine
sound levels would exceed the 6 dBA NYSDEC criterion by 5.9 and 4.3 dBA
respectively.” CR 6011. However, the board’s findings proceed to discount the obvious
NYSDEC classifies as “very noticeable,” (PB MOL, Ex. B, at 15)–by concluding without
any basis, that “total noise from Project operation, even during the wintertime condition
at the 6 m/s ‘cut-in’ speed, should generally remain below levels which could be
17
(emphases added).3
sound measurements from all background sound monitoring locations, and introduces an
additional finding that baseline, existing sound is 45 dBA, a finding clearly at odds with
the measurement data. Since wind turbines are a noise source that operates at night, the
most serious concern is the effect of turbine noise in a very quiet setting, when
Based on its analysis of Hessler’s measurements, CTA concluded that complaints can be
expected “during operation of the completed facility,” and suggested the Planning Board
3
The only possible basis for this conclusion is this passage from the NYSDEC
guidelines:
PB MOL, Ex. B at 20 (emphases added). As the discussion above makes clear, the differences
between the Planning Board’s and SLW’s consultants revolved entirely around the evaluation of
field measurements made by Hessler.
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consider a complaint resolution process that would involve “methods of noise abatement
between SLW’s sound consultant and CTA with respect to the determination of
asserted that the complaint procedure “fully resolves the comments that have been made
by CTA.” CR 4289. This was the position the Planning Board finally adopted, as stated in
The Planning Board’s consultants did not suggest that a complaint resolution
procedure would mitigate noise impacts. To the contrary, the consultants told SLW that
Considering the two years of correspondence among the engineers for the Planning
Board and SLW’s engineers about the proper approach to assessing noise, and the serious
that the board devoted little time r to discussing noise issues themselves. The meeting
minutes of the board throughout this period, up to an including their final meeting
adopting findings based on the FEIS is devoid of any indication that noise impacts were
ever discussed for more than a few minutes. Cf. Schneider Aff.; CR 33-99. Nevertheless,
in the end the board elected to rely on Hessler, to reject its own engineers’ criticisms of
Hessler’s methods and results, and to forgo any discussion of mitigation measures save
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6. WPEG’s comments
There was broad agreement with the criticisms of Hessler’s noise assessment
methods made by the Planning Board’s consultants and both WPEG’s acoustic engineer
and WPEG members, one of whom had presented a technical paper on the effect of wind
shear on background noise presented at a professional acoustic society that was submitted
Planning Board on noise impacts will not be recounted in the same degree as the account
above has done for the Planning Board’s comments. The comment letters of WPEG’s
former attorney Thomas Fucillo, (CR 5673-5764), and WPEG member Clif Schneider,
(CR 5879-5887), in particular, speak for themselves, and state criticisms of Hessler’s
methods and conclusions that are nearly the same as those stated throughout the review
process by CTA and BCG. The agreement between the body of comments on noise
impacts submitted by WPEG and those submitted to SLW by the board’s consultant’s was
specifically noted in the engineering correspondence, where WPEG’s views are identified
as the “NGO” position (i.e., non-governmental organization). Supp 96, 103-104. Apart
from SLW’s efforts to defend Hessler, there are no comments in the record by anybody in
support of Hessler’s noise assessment for the SLW project, and thus no credible evidence
Lacking substantial support in the record, the potential severity of noise impacts
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for some residents in and around the SLW project required meaningful mitigation, but the
board elected to forgo any mitigation relying instead on the promise of a complaint
making process at the earliest possible time.” Eggert v. Town Board of the Town of
Westfield, 217 A.D.2d 975, 977, 630 N.Y.S.2d 179, 181 (4th Dept. 1995) (citing ECL §
8-0109[4]; 6 NYCRR § 617.1(c)). See also Matter of Scenic Hudson, Inc. v. Town of
Fishkill Town Board, 258 A.D.2d 654, 656-657, 685 N.Y.S.2d 777, 779-780 (2nd Dept.
1999) (in a challenge to a town’s SEQRA review of impacts of a gravel mine, failure to
propose mitigation measures “until ‘specific land uses [were] proposed on the property’”
Matter of Defreestville Area Neighborhoods Association, Inc., 299 A.D.2d at 634, 750
N.Y.S.2d at168 (a 2002 3rd Dept. decision that holds, “declar[ing] that no determination
would be made on ‘issues that will arise only when an actual construction project is
segmentation”).4
4
“Segmentation” is discouraged but not prohibited under SEQRA’s regulations, so long
as the lead agency “demonstrate[s] that such review is clearly no less protective of the
environment” than a full review. See 6 N.Y.C.R.R. § 617.3(g)(1).
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Supreme Court, Onondaga County, Hon. Donald A Greenwood has applied these
principles to a wind farm case under circumstances that mirror those here. Brander v.
Town of Warren, 18 Misc. 3d 477, 847 N.Y.S.2d 450 (Onon. Co. 2007). Judge
Greenwood annulled the Town of Warren town board’s approval of a wind project FEIS
alternative project size, alternative project design/layout, alternative project scale and
action whatsoever,” there were “no field studies or expert reports to provide the requisite
quantitative and scientific basis for the board's approval; as such, the approval of the
FEIS was improper.” Id., 18 Misc. 3d at 481, 847 N.Y.S.2d at 454 (citing Matter of
Pyramid Co. of Watertown v Planning Bd. of Town of Watertown, 24 A.D.3d 1312, 807
N.Y.S.2d 243 (4th Dept 2005)). In addition, “[w]ith respect to noise, the record shows
that the Town of Warren Town Board, as the lead agency, was provided with credible
scientific information concerning the shortcomings of the noise study and expected noise
impacts from the projects submitted by [the applicant],” but elected to “require the
developers to submit a plan in the future to the town to mitigate noise impacts and to
provide a ‘complaint resolution procedure’ for residents.” Id., 18 Misc. 3d at 484, 847
N.Y.S.2d at 456. Judge Greenwood held, “The reliance on such tentative plans for future
mitigation is improper,” since the purported mitigation would be prepared and approved
“clearly after the completion of the SEQRA process.” Id. (citing Pyramid ). “The deferral
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of mitigation issues until after the completion of the SEQRA procedure, therefore, has
made the process substantively defective, requiring this court to conclude that the board's
determination in granting the special use permits was arbitrary, capricious and
C. The Board Concluded Its Review of the SLW Project Hastily in Violation of
SEQRA’s Procedures
The manner in which the Planning Board concluded its environmental review of the SLW
project was improperly hasty in that the involved agency Town of Lyme and the public
were given no meaningful opportunity to review the FEIS prior to the board’s issuance of
findings. This was especially improper in light of extensive changes to the project
proposal since the close of the formal public comment period, on May 30, 2009. CR
3617-3618.
The board received a proposed FEIS from SLW at its meeting of August 18, 2010.
Edsall Aff., ¶ 36. This document combined the DEIS, the SDEIS that had been subject to
a formal public comment period in May 2009, and numerous additions and changes to
both developed up to August 18, 2010 that had never been subject to a formal public
comment period. 6 N.Y.C.R.R. § 617.9(b)(8). See Schneider Aff., Ex. B. The action taken
23
at that meeting was to receive the proposed FEIS and to provide public notice of its
receipt; no decision to take any action on the FEIS was made at that time. Edsall Aff., , ¶¶
37-38. Cf. Schneider Aff., Ex. E. Once received by the board on August 18, “members of
Planning Board and the Planning Board’s consultants began undertaking a review of the
[proposed] FEIS to determine whether the [proposed] FEIS was complete within the
2010). As noted in the referenced SEQRA provision, it was now up to the board (not
SLW) to “prepare or cause to be prepared and . . . file a final EIS, within 45 calendar days
after the close of any hearing or within 60 calendar days after the filing of the draft EIS,
Thus, the document proposed by SLW as an FEIS did not and could not, as a
matter of law, become the FEIS until the board took further action; instead, it remained a
“draft” EIS rather than a “final” EIS. 6 N.Y.C.R.R. §§ 617.2(n), (p). Approval and
adoption of the then proposed FEIS did not take place until the Planning Board meeting
of September 15, 2010. CR 93. Only then did the proposed FEIS become final. At the
same meeting, the board adopted and issued its Findings Statement. Edsall Aff. ¶ 39.
This procedure does not comport with the SEQRA regulations, which require at
least ten days for consideration of the FEIS before a findings statement is issued:
(a) Prior to the lead agency's decision on an action that has been the
subject of a final EIS, it shall afford agencies and the public a reasonable
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time period (not less than 10 calendar days) in which to consider the final
EIS before issuing its written findings statement. If a project modification or
change of circumstance related to the project requires a lead or involved
agency to substantively modify its decision, findings may be amended and
filed in accordance with subdivision 617.12(b) of this Part.
6 N.Y.C.R.R. §§ 617.11(a)-(c).
Failure 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), was in this case prejudicial for several reasons.
First, WPEG members and the public had sought to comment on changes to the project,
and importantly changes to noise assessment (which ultimately fell far short of what the
board’s and WPEG’s consultants had requested), as well as the adequacy of the proposed
complaint resolution procedure as a resolution of the noise issues for some time after the
close of the formal comment period on May 30, 2010. See Schneider Aff., ¶¶ 5-11.
Secondly, the Town of Lyme Planning Board as an interested agency had never
been given proper notice that a proposed or, ultimately finalized EIS was received or
25
approved by the Cape Vincent Planning Board. Bowers Aff.
Moreover, actual notice of acceptance of the FEIS was required to be filed with
the Town of Lyme Zoning Board of Appeals (“ZBA”) because the Lyme ZBA is an
involved agency. Bowers Aff., Ex. C. It is not sufficient that the notice was published and
SEQRA guidance, “if a known involved agency is not given an opportunity to participate,
there may be grounds to nullify any approvals subsequently made regarding the action
Vincent Planning Board ever filed an actual notice of acceptance of the FEIS with the
Lyme ZBA.
Thus, while there may not be a requirement under SEQRA for a formal public
comment period following the acceptance by the lead agency of a FEIS, there must be an
opportunity afforded to “agencies and the public” to comment on the FEIS before it is
other words, interested agencies and citizens, as well as involved agencies, must be given
an opportunity to identify any deficiencies in the FEIS before the SEQRA review process
finally concludes. By failing to afford this opportunity, the Cape Vincent Planning Board
violated SEQRA’s procedures, which require strict compliance. King v. Saratoga County
Bd. of Supervisors, 675 N.E.2d 1185, 89 N.Y.2d 341 (1996), cf. id., 675 N.E. at 1188
26
(“the requirement of strict compliance ... insure[s] that agencies will err on the side of
meticulous care in their environmental review. Anything less than strict compliance,
Ltd. v. City of Hornell Industrial Dev. Agency, 212 A.D.2d 958, 624 N.Y.S.2d 689 (4th
Because the board failed to comply with SEQRA’s procedures by failing to solicit
comments considering the adequacy of the FEIS before issuing its findings, and failed to
afford any time for such considerations to be communicated to the board, its findings
must be annulled and remanded to allow adequate time for such consideration.
It is well settled that a court, as a matter of common law, may take action to stop or
undo municipal action taken in spite of bias rooted in an expectation of beneficial interest.
In so doing, the court must use a case-by-case approach and examine all relevant facts
Matter of Byer v. Town of Poestenkill, 232 A.D.2d 851 (3d Dept. 1996); Matter of Parker
v. Town of Gardiner Planning Board, 184 A.D.2d 937 (3d Dept. 1992). “It is critical that
the public be assured that their officials are free to exercise their best judgment without
27
particularly controversial.” Matter of Byer, 232 A.D.2d at 852-853 (citing Matter of
Zagoreous v. Conklin, 109 A.D.2d 281 (2d Dept. 1985)). Notably, however, no specific
violation of a statute need be present for an impermissible conflict of interest to exist. See
Matter of Zagoreous, 109 A.D.2d at 287; Matter of Tuxedo Conservation and Tax Payers
Association v. Town Board of Town of Tuxedo, 69 A.D.2d 320 (2d Dept. 1979); Matter of
Conrad v. Hindman, 122 Misc.2d 531 (Onondaga County Sup. Ct., January 17, 1984).
In this case, the deciding vote of the Planning Board in approving a certification
that SEQRA had been complied with and all identified adverse impacts have been
adequately mitigated was made by the board’s chairman Richard Edsall. However, Edsall
had, by the time of the vote, for some time leased land to BP Alternatives to site a portion
of BP’s proposed wind farm in Cape Vincent. Schneider Aff. ¶ 22. The Planning Board
directed SLW that the two projects utilize a common transmission line through the town.
CR 57-59, 3699-3700, 3851, 4332. See also CR 3749 (Byrne comment 70), 3760
(Doctuer comment 1). Advancing the SLW project would thus result in a beneficial
interest to Edsall by facilitating the transmission of energy from a future BP wind farm.
Our source for the information that Edsall leased land for BP’s project casts a
further cloud over Edsall’s failure to recuse himself from the SLW matter after insisting
that the two project share a common transmission line, as the information grows out a
state-wide investigation to potential corruption of local officials by their ties to wind farm
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developers. See Schneider Aff., Ex. F (BP disclosures of financial interests with Cape
Vincent local officials under the New York State Office of the Attorney General
(“NYSOAG”) Code of Conduct Agreement with New York wind project developers). On
July 15, 2008, NYSOAG announced “the launching of an investigation into two
companies developing and operating wind farms across New York state amid allegations
<http://www.ag.ny.gov/media_center/2009/july/pdfs/windcode_July_2009.pdf>. In 2009,
all New York “wind developers were prodded over the summer to sign an ethics code
barring gifts to public officials, a standard developed by the office of the state attorney
general, Andrew Cuomo, who also created a task force to monitor development of the
Y ORK T IMES, December 14, 2009, attached hereto. By the end of the year, wind
developers operating in New York provided disclosures of their dealings with town
officials or their families in the six years prior to signing the agreement, and posted the
from BP’s disclosure under the agreement that information can be found establishing
Edsall’s direct interests in wind energy facility development. Schneider Aff, Ex. F.
Edsall thus clearly has a direct financial interest in the BP wind project in Cape
Vincent. By participating in, and in fact leading the Planning Board to issue a directive to
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SLW to utilize a common transmission line with BP, (CR 57-59), he created an indirect
financial interest in the specific design of the SLW project ultimately approved by his
board. He also created a serious appearance that his role as an agent of BP, under the
terms of his lease (which requires that he assist in advancing the BP project), results in
bias in his review of the SLW project, since under the transmission line directive the two
projects are now linked. This appearance of bias has been widely noted in public
Actual bias by Edsall has been evidenced by his participation in 2005 in a pro-
wind project citizens group. Schneider Aff. ¶ 24. In 2006 Edsall appeared before the Cape
Vincent Planning Board to lobby for pro-wind interests. Id., ¶ 27. This is very similar to
the situation in Matter of Schweichler v. Village of Caledonia, 845 N.Y.S.2d 901, 2007
N.Y. App. Div. LEXIS 11560 (4th Dept. 2007), where three members of a village
planning board appeared to have impermissibly prejudged an application for rezoning for
favor of the rezoning and the project; thus, the site plan approval had to be annulled based
Finally, Edsall has shown actual bias in his review of the SLW project, as shown in
detail above, regarding his arbitrary disregard for the opinions of his own environmental
experts about the potential for significant noise impacts of the project as designed and
finally approved.
30
It is submitted that Edall’s recusal from the SLW review process is required by the
Planning Board’s decision to require the project share a transmission line with BP Wind,
and by the extent of the financial interests at issue (see Matter of Byer, 232 A.D.2d at
852-853; Matter of Parker, 184 A.D.2d 938), and to assure that the individual
Respondents, who are public officials, avoid a circumstance which might “compromise
their ability to make impartial judgments solely in the public interest”. Matter of Dowd,
1993 N.Y. Op. Atty. Gen. (Inf.) 1060, 1993 WL 255345; Matter of Geldenhuys, 1993
N.Y. Op. Atty. Gen. (Inf.) 1001, 1993 WL 179302; Matter of Kline, 1986 N.Y. Op. Atty.
Where
one Board member and the spouse of another were employees of [project
developer] Cornell [University], these affiliations presented no conflict of
interest under General Municipal Law § 801 since neither individual’s
employment duties involved the preparation, procurement or performance of
any part of the [project], nor was their remuneration directly affected by the
project (see, General Municipal Law § 802 [1] [b]). Furthermore, neither
of the two remaining Board members in question had any impermissible
interest in Cornell’s application for a zoning change; one was a graduate
student whose tuition and stipend were paid by a foundation unrelated to
Cornell and whose studies did not involve participation in the [project], and
the other was married to a Cornell retiree whose pension benefits were
similarly outside its control. And while violation of a specific section of the
General Municipal Law is not critical to a finding of an improper conflict of
interest (see, Matter of Zagoreos v Conklin, 109 AD2d 281, 287), we are
satisfied that none of these four Board members had any direct or indirect
interest, pecuniary or otherwise, in the [project] such that their vote could
reasonably be interpreted as potentially benefitting themselves. Given the
31
absence of any actual conflict of interest, or the significant appearance
thereof, Cornell’s acknowledged failure to comply with the disclosure
provisions of General Municipal Law § 809 is not a defect requiring
invalidation of the Town Board vote.
DePaolo v. Town of Ithaca, 258 A.D.2d 68, 72, 694 N.Y.S.2d 235, 239 (3rd Dept. 1999).
require the BP and SLW wind projects to share a common transmission line, the board’s
benefitting” Edsall and his wife, thus triggering the requirement that Edsall recuse
himself from the SLW project review. Id. Had Edsall not insisted on linking the two
projects, a reasonable inference of bias in advancing the SLW project could be deflected.
Based on the foregoing, a declaration must be made pursuant to CPLR 3001 that
Edsall had a conflict of interest at the time of the September 15, 2010 Planning Board
vote approving the SLW FEIS, and had a duty to recuse himself from engaging in any
discussion, vote, or other action with regard to the SLW project from the beginning of the
environmental impact review. Further, given the failure of Edsall to recuse himself,
which constitutes a failure to perform a duty enjoined upon him by law, annulment of the
board’s findings and approval of the SLW FEIS is an appropriate remedy pursuant to
investigation into improper dealings between local officials and wind farm companies,
32