Wind lawsuit filed too late, judge rules

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December 22, 2009

By CASEY RYAN VOCK The Press Republican Tue Dec 22, 2009, 09:37 AM EST

BEEKMANTOWN — A Franklin County Court judge has ruled that the lawsuit brought by a group of residents against the Beekmantown Town Council and Zoning Board was filed too late.

In May, the Zoning Board of Appeals in Beekmantown rescinded the town’s September 2008 resolution outlawing industrial wind-turbine projects. The Town Council followed suit in July.

Both decisions sparked strong opposition from the West Beekmantown Neighborhood Association.

An Article 78 proceeding brought by the association was recently heard by Franklin County Court Judge David R. Demarest.

TIMING OF APPEAL

According to a news release from the association, Demarest agreed that the 13-turbine wind project belonging to Penn Energy Trust is not allowed under Beekmantown’s current laws, but he ruled the group brought the appeal too late, which he referred to as a “fatal” flaw.

The group, which has opposed the wind project since its inception, did not initially appeal the Zoning Board of Appeals’ decision, believing that such a move was redundant because the town had already passed a law that was supposed to halt all wind projects.

But, because the project was before the Zoning Board at the time the law was passed, it was grandfathered in.

Demarest ruled that an appeal of either the Zoning Board or the Town Council decision needed to happen within four months of those decisions.

The Nov. 13 Article 78 proceeding was held within four months of the Town Council’s decision but more than four months after the Zoning Board of Appeals’ decision, rendering the association’s complaint invalid, the judge ruled.

APPEAL PLANNED

Mark Schneider, the Plattsburgh-based attorney representing the Neighborhood Association, believes Demarest made an incorrect ruling.

“We think Judge Demarest erred in dismissing our case. I think he applied the wrong statute of limitations.”

Schneider has filed an appeal of the decision on behalf of the Neighborhood Association.

He also asked the Appellate Division to stay the issuance of a building permit until the appeal can be considered. He said the court will consider the request for a stay in the next few weeks.

“To get a stay, you need to show that you have a good likelihood of winning (the appeal), and I think we have a very good chance of winning. I think there is a very good chance the Appellate Division will issue the stay.”

BOARD CHANGE

If the stay is issued, Schneider said, Penn Energy would be unable to obtain a building permit until the appeal is heard.

“And then, in January, it is possible that the new town board could enforce the (wind) law, so we wouldn’t need the appeal.”

Schneider said newly elected Beekmantown Councilor Mike Morales is believed to be in favor of enforcing the town’s wind law.

But when contacted by the Press-Republican, Morales gave the following statement: “Because this is an evolving issue before the town board, and I’m currently not sitting on the board, I think it would be premature for me to comment. Any speculation on the part of others is just that, speculation.

“For now, I think I should just wait and see where we are in the process in January, when I’m on the board, and will have a clearer understanding of the facts around the project at that point in time.”

BUILDING PERMIT

Schneider still believes the board “can and should” refuse to issue a building permit to Penn Energy.

“And then I suppose Penn Energy could file (a lawsuit), but they don’t have much of a claim because they don’t have any vested rights.”

Schneider and the association have nine months to brief the appeal and bring it to court, but they intend to move quickly.

If the association loses its appeal, Schneider said, the group would take the case to the New York Court of Appeals.

“We think they would enforce the (town’s wind) law.”

COMPANY CONFIDENT

Michael Sterthous, the Albany-based attorney representing Penn Energy, disagrees.

“Of course, he (Schneider) would say that,” Sterthous said. “The (state) Supreme Court already denied their motion for the stay.”

Sterthous sees no legal basis for granting a stay, and he doesn’t believe the group will succeed in obtaining it or winning an appeal.

“Again, the Supreme Court ruled in our favor on a motion to dismiss their entire case. The court dismissed the case without reaching these claims, finding instead that the only legitimate claim was to the ZBA’s decision, which ruled that the local law does not apply to the Penn project. And the WBNA failed to challenge that decision in a timely manner.”

The Neighborhood Association has said that its motion was denied on a technicality.

“It’s more than just a technicality,” Sterthous said. “It’s the law. If there was any merit to any of their other claims besides the one regarding the ZBA, the court could have addressed those, but it didn’t.”

Sterthous said the Neighborhood Association and Schneider have “absolutely no basis” for the belief that the appeal should be successful.

“Their appeal will be limited to the statute of limitations claim, and surely they will have a hard time justifying any imminent injury necessary for a stay when they failed to commence their original challenge in a timely manner.

“The motion and the appeal are nothing more than a continued abuse of the legal process in an effort to delay and drive up the cost of the project for both Penn and the town.”