Town's Pact with Wind Turbines Company Stands, Panel Says

, New York Law Journal

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A windmill in Steuben County
A windmill in Steuben County

An upstate municipality that had no laws, codes or requirements governing the installation of wind turbine facilities until after a new town board imposed a moratorium cannot retroactively preclude a company from constructing energy-producing devices in Steuben County, an appellate panel in Rochester has held.

Matter of Ecogen Wind v. Town of Prattsburgh, 859/13, centers on the windmill-like turbines that dot the landscape of a growing number of rural towns. The state Department of Environmental Conservation encourages the turbines as a means of generating energy without burning fossil fuel or emitting greenhouse gases.

Records show that in March 2009, Ecogen Wind and Ecogen Transmission Corp. were advised in writing by the code enforcement officer for the Town of Prattsburgh that there was no legal impediment to building turbines within the municipality and no permits were needed.

Although there was no question that the town "had no local law, zoning law or building code provision" relevant to the Ecogen proposal, the company sought town approval in an effort to accommodate local concerns, according to the decision.

However, Ecogen, which already had the necessary state permits to proceed, could not reach an agreement with the town and commenced an Article 78 action. In late 2009, just before a new town board took office, the town settled the case, acknowledging that "no approvals, permits or other authorizations from the town are required…to develop, construct and operate the project." But the new town board repudiated the agreement, rescinded the settlement and imposed a moratorium.

Monroe County Judge John Ark partially granted Ecogen's motion to enforce the settlement agreement but declined to dismiss the town's declaratory judgment action. Ark held that Ecogen did not have vested rights because there had been no substantial improvements to the property at issue.

In a unanimous memorandum and order, the Appellate Division, Fourth Department, on Dec. 27 found that the "parties were bound by the terms of the settlement and the court was bound to enforce it."

Presiding Justice Henry Scudder (See Profile) and justices Erin Peradotto (See Profile), Edward Carni (See Profile), Joseph Valentino (See Profile) and Gerald Whalen (See Profile) decided the case in an unsigned order.

Laurie Styka Bloom of Nixon Peabody in Buffalo argued for Ecogen. The town was represented by Joseph Nacca of Bond, Schoeneck & King in Rochester.

In other municipal law matters resolved by the Fourth Department last week, the court:

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