BEEKMANTOWN — The Beekmantown Town Council will seek a cost-free, informal opinion from the State Attorney General's Office regarding the legality of Penn Energy's proposed wind project.
At the town's first regular meeting of the year, newly elected Councilor Mike Morales motioned to have State Attorney General Andrew Cuomo's office weigh in on the project and its legal standing.
"I want to get this taken care of — now," Morales said. "My desire is not to cause a particular result to happen. My desire is that people are satisfied that a party not involved on either side is giving an opinion.
"One question that seems to be unresolved in people's minds is whether or not the local laws apply to the current project, given that the project doesn't have vested right.
"I don't see any harm in seeking an opinion from the Attorney General's Office on that question and whether or not we can direct our Zoning Board of Appeals to apply local laws when they are appropriate."
HOME RULE CITED
Beekmantown Supervisor Dennis Relation, visibly frustrated by Morales's motion, said he did not see the need.
"We already know what the answer is," he said. "To ask Albany what this town should do is taking it out of the home rule.
"We know what we did. This board knows what we did. Certain people can't accept that and will never accept that."
MOTION PASSES
Despite Relation's comments, Councilors Sharron Garden and Sydney Garrant joined Morales in voting for the motion, which passed 3-2.
The Town Council will ask for an informal opinion on its "ability, under certain circumstances, to direct a zoning board of appeals to apply a local land-use law to a proposed building project."
It will also seek an opinion on "whether or not a town board can rescind a conditional-use permit granted by a zoning board of appeals if the use in question falls under the authority of the town board due to the adoption of a local law regulating that use."
Additionally, the council will ask whether Beekmantown's two local wind laws, enacted in 2008, apply to the proposed project.
"They may not answer, as I believe they don't like to interpret local laws," Morales said.
STATE GUIDELINES
And he could be correct.
The guidelines for requesting an informal opinion are spelled out in clear language on the State Attorney General's Web site. The second guideline reads: "Requests should relate to questions concerning municipal authority under state law; we generally do not interpret local laws or charters."
The third guideline also resonates with the Beekmantown project: "We do not issue opinions on matters in or likely to be involved in litigation."
Morales expects the office will opine on the Town Council's ability to direct the Zoning Board of Appeals, "because that gets at state law.
"They may want to stay away from it completely because of litigation around it. But to me, that's neither here nor there. At least we will have done this for the residents."
Informal opinions from Cuomo's office are considered just that because it is the responsibility of the town's attorney, Joe Lavarando, to provide advice to the council members.
PREVIOUSLY REJECTED
Russ Hartung, a West Beekmantown Neighborhood Association member, explained the basis for the motion at the meeting.
He said the recommendation to pursue this line of inquiry with the Attorney General's Office was recommended by one of the state assistant attorneys general.
The association learned of the process to seek an informal opinion last summer, when several members contacted the Attorney General's Office to inquire about the situation in Beekmantown.
"We presented that as an option to the Town Board (last August) as a way to resolve the issue without spending any taxpayer money because this would be free," Hartung said.
The council voted 3-2 against pursuing the option at that time.
"The WBNA had no choice but to pursue this through court action," Hartung said.
THREAT TO PROJECT
Kirt Mayland, manager of the Penn Energy project, shared the company's perspective at the meeting.
"Given the change in the board due to the recent election and the speed at which we were working on the host agreement, which is close to a final draft, we wanted to gauge the sentiment of the new board," he said.
"We have to make big decisions (soon). We have big financial commitments to make, and we have financial opportunities that will expire shortly."
One opportunity Mayland referred to was the recently announced state funding for the Beekmantown project, which will be allocated to Penn Energy once the project produces energy.
He expressed his concern about Penn Energy's ability to take advantage of such funding.
"In this kind of environment, where we are constantly under the threat of this kind of action, it is almost impossible for us to move forward. This could be a significant blow to the finances of the project moving forward and our ability to continue working on it."
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