Alle-Cat Wind Energy LLC has filed a lawsuit in state Supreme Court against the Farmersville Town Board seeking to set aside the town’s recently passed 2020 Wind Energy Facilities Law.
Alle-Catt Wind Energy LLC’s parent company, Invenergy, wants to build a 340-megawatt system consisting of up to 117 600-foot turbines in Farmersville, Freedom, Rushford, Centerville and Arcade.
The Article 78 proceeding by Alle-Catt asks the court to annul the Jan. 6, resolution to invalidate the town’s 2019 wind law.
The Farmersville Town Board voted 3-2 on Jan. 6 to void the 2019 wind law, which town attorney Eric Firkel said was not properly adopted. The board’s action was demanded in a lawsuit filed by Farmersville United, which represents wind farm opponents.
The All-Catt lawsuit names the town of Farmersville and Mark Heberling, a town board member and former Farmersville United officer.
Alle-Catt Wind Energy LLC also lists David Murphy of Guenther Road, Farmersville, who has a wind lease “and would be harmed by the 2020 law” as a plaintiff.
The lawsuit, filed Wednesday with Cattaraugus County Supreme Court Judge Terrance Parker, accused the Farmersville board of “attempting to invalidate” the town’s 2019 wind law by resolution voiding the law on Jan. 6.
A new local wind law adopted by a 3-2 vote of the town board earlier this month “attempting to replace the 2019 local law” was “intended to negatively impact ACWE’s application for a wind energy facility currently pending before the New York Board on Electrical Generation and the Environment,” the suit alleges.
Alle-Catt asks the judge to rule that the 2019 wind law remains in effect because the town board adopted the 2020 law before making modifications recommended by the Cattaraugus County Planning Board last month.
In addition, the lawsuit seeks to “stop town board member Mark Heberling from continuing to engage in repeated, improper and disqualifying conflicts of interest.” Heberling’s wife, attorney Ginger Schroder, “represents clients before the town board who oppose the 2019 local law, support the resolution and support the 2020 law,” the suit states.
“Heberling should have recused himself” in voting in the voting on the resolution and the 2020 law, it adds.
Firkel told the Olean Times Herald Friday that the Alle-Catt lawsuit was not unexpected.
“It’s clear Alle-Catt is doing whatever they can to delay or muddy the waters ahead of the Siting Board’s decision in May,” Firkel said.
He said Heberling has no conflict as a former member of an organization opposed to the proposed Alle-Catt Wind Farm. “He was part of an advocacy group before he was elected. There’s no conflict there. It’s one more way to muddy the waters.”
Firkel said the town board’s resolution recognized the 2019 wind law as invalid.
“They were not invalidating it,” he said. “That’s a red herring. They are making the argument that the town board passed a resolution invalidating the local law. The law was invalid because they (former board) didn’t follow several procedures.”
Firkel noted the town board voted on the 2019 wind law without forwarding it to the county planning board. “It is void on its face,” the attorney said.
“The irony is almost shocking,” Firkel said, contrasting the 2019 wind law’s passage with the procedures the current town board majority took leading to passage of the 2020 wind law, which he described as more protective of residents.
The 2020 law calls for a height limit of 455 feet on turbines, 3,000-foot setbacks from homes and property lines and lower noise limits.
The Alle-Catt suit points out that when the current town board passed the 2020 wind law on a 3-2 vote on Feb. 10, it had not approved modifications suggested by the planning board.
Firkel replied that the recommendations were incorporated into another local law introduced at the same meeting. The board is expected to vote on the modified wind law after holding a public hearing on the changes.
The town board passed a law that generally affects the town of Farmersville, Firkel said. The Alle-Cattt project spans five towns. “The town is just trying to put reasonable restrictions” on wind projects to protect the character of the town. “It looks out for residents. It is not directed just at Alle-Catt.”
The law “wouldn’t prohibit them with a reasonable wind project in the town,” Firkel added.
An Invenergy official did not immediately respond to an email seeking comment on the lawsuit.