SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF JEFFERSON
___________________________________________________

WIND POWER ETHICS GROUP,

Petitioner-Plaintiff,

-vs-

PLANNING BOARD OF THE

TOWN OF CAPE VINCENT, and
RICHARD EDSALL, TOM RIENBECK, GEORGE MINGLE, PETITION
ANDREW BINSLEY, and KAREN BOURCY, in their AND
capacities as planning board members, COMPLAINT

Respondents-Defendants, and
Index No. _________
ST. LAWRENCE WINDPOWER, LLC,

Respondent-Defendant.
____________________________________________________

Petitioner-Plaintiff, by its attorney, Gary A. Abraham, Esq., respectfully alleges as

follows:

I. PRELIMINARY STATEMENT

1. This proceeding is brought pursuant to Article 78 and Section 3001 of the

New York Civil Practice Law and Rules (“CPLR”) and asks this Court to

annul, vacate and void a Findings Statement and accompanying approval of

a Final Environmental Impact Statement addressing a wind farm project

proposed by ST. LAWRENCE WIND POWER, LLC, (“SLW”), both (the

“approvals”) filed with the town clerk on September 29, 2010 by the
 PLANNING BOARD OF THE TOWN OF CAPE VINCENT (“planning

board” or “board”).

2. The approvals lack substantial support in the record of the board's review

in this matter because the board ignored the findings and opinions of its

own engineering and acoustic consultants regarding the noise that would be

expected from the project, and Wind Power Ethics Group's (“WPEG's”)

acoustic consultant, and instead the board elected to rely on SLW's findings

and opinions regarding noise impacts.

3. The board's and WPEG's acoustic consultants both rejected not only

SLW's findings, but found that SLW's noise assessment is based on

methods not approved in acoustics.

4. Although two members of the planning board abstained from voting on

the board's environmental findings due to conflicts of interest, up to the

time of the vote these two members were actively involved in the board's

discussion of the SLW project.

5. Although three members of the board voted to approve the findings, one

or more of these three had and have direct or indirect material interests in

the SLW project.

6. The planning board was obligated to but did not coordinate their

environmental impact review with other involved agencies, including the

 Town of Lyme planning board, thereby hindering involved agencies' ability

to develop their own findings. See 6 N.Y.C.R.R. § 617.2(s).

7. Notwithstanding that the planning board was provided with credible

scientific information showing significant impacts of SLW's project would

remain, even after a lengthy environmental impact review, the board

disregarded its obligation to avoid or mitigate serious impacts because

doing so would make it too difficult to induce a developer to build a wind

farm. Under these conditions, the Court should find the majority of the

board was biased and unwilling to take a hard look at potential adverse

impacts of its action.

II. PARTIES

8. Petitioner-Plaintiff WIND POWER ETHICS GROUP is an

unincorporated association of Cape Vincent and Lyme landowners

dedicated to protecting the rural amenities and environment of the area. The

association and its members have participated vigorously in the town

board’s review of the SLW project, more so than most residents of the

town.

9. All or most members of WPEG own land in relatively close proximity to

the SLW project area and therefore would be harmed by the approvals
 challenged here, differently than the general public.

10. Respondent-Defendant PLANNING BOARD is a municipal agency with

responsibility for permitting certain land uses in the Town of Cape Vincent,

and is lead agency for review of the SLW project pursuant to the State

Environmental Quality Review Act, N.Y. Envtl. Conserv. L. § 8-0101 et

seq. (“SEQRA”), and its implementing regulations.

11. Respondents-Defendants RICHARD EDSALL, TOM RIENBECK,

GEORGE MINGLE, ANDREW BINSLEY, and KAREN BOURCY were

planning board members throughout 2010, including at the time of the

actions complained of here, and are current planning board members.

12. Respondent ST. LAWRENCE WINDPOWER, LLC is a corporation

authorized to do business in New York with offices at 122 South Point

Street in the Town of Cape Vincent, New York. SLW is a subsidiary of

Acciona Energy North America.

13. SLW is a necessary party in this matter because it is its proposed project

that is the subject of the approvals challenged here.

III. VENUE

14. Venue is properly located in Jefferson County pursuant to CPLR § 506(b)

as the county in which the Respondent planning board made the decisions

complained of here.
 IV. EXHAUSTION OF ADMINISTRATIVE REMEDIES

15. In January 2007 the planning board scheduled a formal public comment

period on a Draft EIS (“DEIS”) prepared by SLW for the SLW project

proposal.

16. On March 25, 2009 the board scheduled a public comment period on a

Draft Supplemental EIS (“DSEIS”) it directed SLW to prepare, inviting

public comments until May 30, 2009.

17. Several supplemental reports and documentation were provided by SLW

after the public comment period on the DEIS and the DSEIS, and these

were incorporated into a proposed Final EIS (“FEIS”) prepared by SLW for

the board's approval and adoption.

18. WPEG and its members, together with involved and interested agencies

and other members of the public submitted written comments and

supporting documentation on the DEIS, SDEIS, and proposed FEIS,

asserting a number of significant potential adverse impacts would result

from the project as proposed.

19. On September 15, 2010 the board approved and adopted a Findings

Statement supporting its approval of the proposed FEIS pursuant to

SEQRA, and approved and adopted the FEIS as the board's basis for its

findings.
20. The board's September 15, 2010 findings were filed with the town clerk

on September 29, 2010.

21. The board's September 15, 2010 findings conclude that all identified

significant potential adverse impacts have been avoided or minimized as

much as is feasible to do.

22. The board's September 15, 2010 findings will now be incorporated into

the planning board's site plan review of the SLW project but their substance

will not be revisited during the site plan review. Therefore, no further

remedy is available to the petitioner.

V. FACTUAL BACKGROUND

23. The following is a summary of the facts relevant to this petition.

24. Petitioner members all own land in the Town of Cape Vincent or the

Town of Lyme.

25. The value of petitioner members’ land lies in its rural setting and the

environmental, recreational and aesthetic amenities that characterize the

land and the community to which it is tied.

26. The physical environment, the recreational practices and the aesthetic and

community values of petitioner members would be harmed by the town

board decision complained of here because this decision is inseparably tied

to a plan to attract large commercial wind farms to Cape Vincent, including

 dozens of industrial wind turbines and miles of access roads and power

lines.

27. There are no industrial wind turbines in Cape Vincent.

28. In 2001 at least two different wind developers began purchasing land use

rights, including from Cape Vincent local officials, in order to secure

sufficient land for a multi-turbine wind energy facility or “wind farm” in

Cape Vincent and Lyme. These companies are British Petroleum (“BP”)

and Acciona.

29. On or about July 13, 2002, the planning board approved a request for

approval for the installation of meteorological towers to test wind

conditions in Cape Vincent, and to otherwise assess the prospects for

constructing a wind farm.

30. In 2003, the Village and the Town of Cape Vincent adopted a Joint

Comprehensive Plan (termed the “General Plan” under the town's zoning

code) that encourages development that has a minimum impact on scenic

natural vistas and tourism assets, and discourages towers or utility facilities.

31. Under Cape Vincent's zoning code, wind farms may be deemed

“utilities,” in which case their approval is subject to site plan review by the

town's planning board.

32. Cape Vincent's zoning code lacks any specific regulation for wind farms.

33. The SLW project is proposed to be sited in the town's Agricultural

 Residential District, requiring the planning board to condition approval in a

manner that preserves the rural character of the town or, if it finds the

deleterious effects of a wind farm proposal cannot be mitigated because of

the particular conditions on the site it is to occupy, to deny approval.

34. No later than 2006, both BP and Acciona had obtained sufficient land use

rights from local property owners to support their respective wind farm

project proposals.

35. The project area required for the SLW project is approximately 7,900

acres, however this represents only parcels leased or otherwise controlled

by SLW or Acciona for the proposed SLW project.

36. As proposed, and as directed by the planning board, Acciona (SLW) and

BP must utilize a common transmission line in Cape Vincent and Lyme and

must cooperate to implement common use of a single transmission line.

37. On June 13 and 14, 2007, WPEG submitted written comments to the

board on a Draft Environmental Impact Statement (“DEIS) provided to the

board by SLW, noting that the project is inconsistent with the town's

Comprehensive Plan, and noting that the DEIS lacks an analysis of

alternative project layouts.

38. In 2007 the nearby towns of Clayton and Orleans began review of a wind

project proposed by Atlantic Wind, LLC, and that review continues today.

39. In 2009 a wind farm began operating on nearby Wolfe Island and plans
 for the expansion of the Wolfe Island wind project were announced.

40. On June 10, 2010, the Cape Vincent Town Board formed a Wind Turbine

Economic Impact Committee to evaluate the effect of siting wind farms in

the town on local employment, private property values, and the town's

property tax base.

41. In January 2009, at the direction of the board, Acciona prepared a

Supplemental DEIS (“SDEIS”) to address critical comments on the DEIS

submitted by the board's consultants, involved agencies and the public.

42. On March 10, 2009, the board's engineering consultant, based in part on

the board's acoustic consultant's review of the SDEIS conclusions regarding

potential noise impacts of the SLW project, concluded that the analysis of

noise impacts of the SLW project in the SDEIS is not supported by data,

and failed to respond to the board's previous criticisms of the analytic

methods for assessing noise in the SDEIS; and noting that the SDEIS lacks

an analysis of the potential cumulative impacts of several planned or

operating wind farms in the area.

43. On March 25, 2009, the board accepted the SDEIS prepared by Acciona

for purposes of further comment by involved agencies and the public.

44. The board scheduled a public comment period on the SDEIS in May and

June 2009.

45. During the comment period in May 2009 involved agencies and the
 public, including WPEG and its members, submitted to the board additional

written comments and technical supporting information, including an

independent analysis by WPEG acoustic engineer of background sound

levels in the vicinity of Cape Vincent, noting that properly measured

background sound levels characteristic of the community are substantially

lower than background sound levels asserted in the SDEIS, and explaining

the difference as resulting from several methodological shortcomings.

46. SLW's acoustic consultant, WPEG's acoustic consultant, and the board's

acoustic and engineering consultants agreed that the SLW project's noise

impacts should not exceed 6 decibels above existing background sound

levels, a standard derived from guidelines for assessing noise impacts

issued by the New York State Department of Environmental Conservation

(“NYSDEC”).

47. Comments submitted in May 2009 by the public, including by Petitioner,

also provided substantial evidence from realtors and other experts in real

estate valuation supporting the conclusion that the analysis in the SDEIS of

the potential for adverse impacts on property values in the community that

would result from the SLW project is based on widely discredited analysis

prepared for the wind industry.

48. WPEG's acoustic consultant, and the board's acoustic and engineering

consultants also commented that cumulative impacts on wildlife and other

 local environmental amenities of all those wind farms planned and

operating in the area must be analyzed in any final EIS (“FEIS”).

49. In June and July 2010 the planning board's consultant was still

identifying deficiencies in the proposed FEIS in comment letters to SLW,

regarding impacts to roads, residential wells, the acoustic environment, and

land and water that would be disturbed by construction, among other

potential adverse impacts, and in response to these comments SLW

provided supplemental responses, supporting information and changes to

the proposed FEIS that had not been included in the SDEIS.

50. However, for several areas of concern the board allowed SLW to develop

plans detailing potential impacts and how they would be mitigated during a

site plan review subsequent to the approvals, or even following the

conclusion of site plan review.

51. The board did not provide any formal comment period during which

involved agencies and the public would be invited to comment on the

supplemental materials submitted by Acciona after June 2009.

52. On August 13, 2010, Petitioner submitted additional written comments

addressed to changes in the DEIS and SDEIS proposed since the May-June

2009 public comment period.

53. On August 17, 2010, the Town of Lyme planning board as an involved

agency faxed to the planning board additional written comments addressed

 to changes in the DEIS and SDEIS proposed since the May-June 2009

public comment period.

54. On or before August 17, 2010, the Town of Cape Vincent Wind Turbine

Economic Impact Committee submitted comments to the board criticizing

the analysis of potential impacts of the SLW project on property values and

the town's tax based proposed FEIS.

55. On or about August 18, 2010, at a regularly scheduling meeting, the

planning board accepted SLW's proposed FEIS as complete but took no

other action on the FEIS or the SLW project.

56. At the September 8, 2010 meeting of the planning board, the board

chairman opened mail that included Petitioner's and others' comments

received in August, as well as correspondence going back as far as May, but

the chairman directed that since the May-June 2009 public comment period

had closed, these materials be put in a “do nothing” file, meaning they

would be disregarded and never reviewed by the board.

57. On or about September 15, 2010, upon a 3-2 vote, the planning board

approved the FEIS, adopted the FEIS in support of its conclusions about the

SLW project, concluded that all SEQRA requirements have been met, and

approved findings purporting to be a reasoned explanation of the basis for

its action.
 FIRST CAUSE OF ACTION

Failure to take a “hard look” at potential environmental impacts

58. Petitioner repeats and realleges the prior paragraphs as if fully set forth

here.

59. The planning board’s approval of findings regarding the SLW project is

an action subject to SEQRA. Envtl. Conserv. Law (“ECL”) § 8-0105(4).

60. Prior to deciding whether to approve an action subject to SEQRA,

“environmental factors shall be considered,” (ECL § 8-0103(7)), and the

lead agency “shall act and choose alternatives which, consistent with social,

economic and other essential considerations, to the maximum extent

practicable, minimize or avoid adverse environmental effects, including

effects revealed in the environmental impact statement process.” ECL § 8-

0109(1).

61. A planning board considering an action subject to SEQRA must, among

other things, set forth in writing “a reasoned elaboration” of the basis for

the action and “provid[e] reference to any supporting documentation.” 6

N.Y.C.R.R. § 617.7(b)(4).

62. The reasoned elaboration of the basis for the action referred to in the

previous paragraph is commonly termed a findings statement. See 6

N.Y.C.R.R. § 617.2(p).

63. The environmental impact state process for the SLW project, including
 comments and supporting information provided to the board by interested

and involved agencies and the public, revealed that serious adverse impacts

to the acoustic environment, scenic resources, property values, wildlife and

community character remained, but the FEIS and the board's findings fail to

consider measures to avoid or minimize such impacts.

64. In approving the SLW project findings, the board relied on future noise

complaint procedures and other future, as yet unavailable evaluations and

mitigation of effects of the project once operational without, however,

analyzing the effectiveness of such future measures.

65. Therefore, the action of the town board was in violation of lawful

procedures, was unreasonable, and was made without sufficient basis in

substantial evidence, and should be overturned.

SECOND CAUSE OF ACTION

Failure to Undertake “Coordinated Review” Pursuant to SEQRA

66. Petitioners repeat and reallege the prior paragraphs as if fully set forth

here.

67. “Designation of a Type I action by one involved agency requires

coordinated review by all involved agencies.” 6 N.Y.C.R.R. § 617.4(a)(2).

68. “If an agency determines that the action may have a significant adverse

impact on the environment, it must then coordinate with other involved

agencies.” 6 N.Y.C.R.R. § 617.6(b)(4)(ii).

69. A “ notice of completion of an EIS . . . must be filed with . . . all involved

agencies.” 6 N.Y.C.R.R. § 617.12(b)(1).

70. An EIS includes a Draft EIS as well as a Final EIS. 6 N.Y.C.R.R. §

617.2(n).

71. The Cape Vincent Planning Board at the beginning of its review of the

SLW project proposal designated the proposal as a Type I action pursuant to

SEQRA.

72. The Cape Vincent Planning Board at the beginning of its review of the

SLW project proposal determined that the project as proposed may have

significant impacts on the environment.

73. The Lyme Planning Board is listed in the DEIS and the FEIS for the

SLW project as an involved agency pursuant to SEQRA.

74. However, the Cape Vincent Planning Board failed to undertake

coordinated review with the Lyme Planning Board as evinced, for example,

in the Cape Vincent Planning Board's neglect to provide a copy of the FEIS

or any notification that a proposed FEIS was accepted as complete, thereby

failing to provide the Lyme Planning Board with a meaningful opportunity

to review, comment, and make recommendations or otherwise coordinate

 its review with Cape Vincent.

75. The Cape Vincent planning board published notice of its acceptance of a

complete FEIS for the SLW project in NYSDEC's Environmental Notice

Bulletin on September 1, 2010.

76. However, actual notice of acceptance of the FEIS was required to be

filed with the Town of Lyme Planning Board because the Lyme board is an

involved agency; it is not sufficient that the notice was published and

available to the general public. 6 N.Y.C.R.R. § 617.12(b)(3).

77. The Cape Vincent Planning board did not provide the Town of Lyme

Planning Board with notice of acceptance of the FEIS or a copy of the FEIS

for the SLW project.

78. Therefore, the action of the town board was in violation of lawful

procedure, and should be annulled.

THIRD CAUSE OF ACTION

Failure to consider public comments pursuant to SEQRA

79. WPEG and the Town of Lyme planning board submitted comments on

the proposed but not yet accepted the FEIS for the SLW project on or about

August 17, 2010, one month prior to the Cape Vincent planning board's

acceptance of the FEIS.

80. The FEIS for the SLW project is identical to the proposed FEIS on which

WPEG and the Town of Lyme planning board commented on August 17.

81. Once the board accepted the FEIS for the SLW project, it was required 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).

82. However, the Cape Vincent planning board did not review, read or

otherwise consider in any way the August 17 comment letters submitted to

it by WPEG, the town's Wind Turbine Economic Impact Committee, and

the Town of Lyme planning board.

83. Nor did the board provide notice of acceptance of the FEIS or a copy of

the FEIS to the Lyme planning board.

84. Because the Cape Vincent planning board deprived the public and an

involved agency of the opportunity to present comments, expert testimony

or documentary evidence or examine and comprehend the submissions

made by SLW in 2010, the board's adoption of the findings statement was

done in violation of lawful procedure and should be annulled.

FOURTH CAUSE OF ACTION

Failure to consider cumulative impacts

85. Petitioners repeat and reallege the prior paragraphs as if fully set forth
 here.

86. Before the Cape Vincent planning board accepted and adopted an FEIS

for the SLW project, it was aware that a commercial wind energy project

was operating nearby on Wolfe Island; was aware of plans to expand the

Wolfe Island project; was aware that another commercial wind energy

project was under review by the nearby towns of Orleans and Clayton; and

was aware that BP had submitted an application to the board for another

proposed commercial wind energy project in Cape Vincent and Lyme.

87. The SEQRA regulations required the board to consider whether, in light

of planned and operating wind farms near the SLW project area, the

development of another would have significant cumulative impacts. 6

N.Y.C.R.R. §§ 617.7(c)(1)(xii), 617.7(c)(2).

88. Written comments submitted to the board by WPEG, involved agencies

and other members of the public specifically urged the board to consider

the potential cumulative impacts the SLW project may have in light of the

four wind energy projects operating or proposed in Wolfe Island, Clayton,

Orleans, Cape Vincent and Lyme.

89. Because the Cape Vincent planning board did not consider the potential

cumulative impacts of the SLW project prior to adopting findings

supporting its approval of the project FEIS, its approval was done in

violation of lawful procedure and should be annulled.

 FIFTH CAUSE OF ACTION

Conflict of interest violations

90. Petitioners repeat and reallege the prior paragraphs as if fully set forth

here.

91. Pursuant to General Municipal Law, §809[2], where an application for

approval of a project is involved, a municipal officer or employee is

deemed to have an interest in the applicant when he, his spouse, or their

brothers, sisters, parents, children, grandchildren, or the spouse of any of

them is a party to an agreement with such an applicant, express or implied,

whereby he may receive any payment or other benefit, whether or not for

services rendered, dependent or contingent upon the favorable approval of

such application, petition or request.

92. Violation of a specific section of the General Municipal Law is not

critical to a finding of an improper conflict of interest. An actual conflict of

interest, or the significant appearance thereof is sufficient to require

compliance with the disclosure provisions of General Municipal Law §

809, and failure to provide such disclosure under those circumstances is a

defect requiring invalidation of the approval.

93. Because one or more of the voting members of the planning board voting

on the approvals on September 15, 2010 had a prohibited appearance of

 conflict of interest, or had actual conflicts of interest at the time of their

September 15, 2010 votes approving the SLW project FEIS, the vote was

defective requiring invalidation of the approval.

SIXTH CAUSE OF ACTION

Violations of the Town of Cape Vincent Code of Ethics

94. As authorized by General Municipal Law § 806, the Town of Cape

Vincent has adopted a local code of ethics imposing rules of ethical conduct

in addition to those imposed by Article 18 of the General Municipal Law,

including the requirement that members of the town board “publicly

disclose on the official record the nature and extent of any direct or indirect

financial or other private interest he has in such legislation.”

95. The town’s Code of Ethics also precludes town board members from

holding “any investment directly or indirectly in any financial, business,

commercial or other private transaction, which creates a conflict with his

official duties.”

96. On information and belief, a majority of the Cape Vincent planning board

hold direct or indirect, financial or non-financial private interests in wind

farm development assets in the town, or their family and friends have such

interests such that any reasonable person would conclude under the

circumstances there is a significant appearance of conflicts of interest in

 most town board members.

97. Because a majority of the planning board hold or expect in the future to

hold investments in land that would be used for wind farm development in

Cape Vincent, the planning board’s September 15, 2010 votes approving

the FEIS and certifying that all identified adverse impacts that may result

from the project have been adequately avoided or minimized were defective

requiring invalidation of the approvals.

WHEREFORE, Petitioner-Plaintiff demands judgment against Respondent

PLANNING BOARD OF THE TOWN OF CAPE VINCENT and its members:

(1) Declaring that Respondents’ decision approving the SLW project Final EIS

violates SEQRA and is invalid and null and void;

(2) Ordering Respondents to comply with SEQRA’s procedural mandates,

including but not limited to coordinating its review of the SLW project with

the Town of Lyme, as mandated by SEQRA;

(3) Declaring that the September 15, 2010 approvals are null and void for

failure of one or more of the voting members to recuse themselves from

voting on the approvals;

(4) Awarding costs and disbursements and attorney fees of this proceeding;

(5) And ordering such other and further relief as the Court may deem just and

proper.
DATED: October 26, 2010
Allegany, New York

____________________________________
Gary A. Abraham, Esq.
Attorney for Petitioner-Plaintiff
170 No. Second Street
Allegany, New York 14706
716-372-1913
 VERIFICATION

STATE OF NEW YORK )

COUNTY OF JEFFERSON ) s.s.:

JOHN BRYNE, being duly sworn, states that he is the Chairman of Wind

Power Ethics Group (“WPEG”); that on behalf of WPEG as well on his own behalf he

states that the annexed Petition is true to his own knowledge, except as to matters therein

alleged upon information and belief, and as to those matters he believes it to be true.

_____________________________________________________
JOHN BYRNE, CHAIRMAN
WIND POWER ETHICS GROUP

Subscribed and sworn to before me this ____ day of October, 2010.

_____________________________________
Notary Public