It is Settled – The Wind Blows in Prattsburgh

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After a failed moratorium and years of litigation to void a settlement agreement, 34 wind turbines may finally be erected in the Town of Prattsburgh, New York.

Wind is one of the cleanest and most sustainable means of generating energy but some in the environmental movement see wind turbines as “Cuisinarts in the sky.”

The Supreme Court of the State of New York avoided the catfight among environmentalists ruling unanimously the Town is bound by the terms of a settlement agreement and the court will enforce it, just as it would a settlement agreement between private parties.

Ecogen Wind LLC and its related transmission company are in the business of constructing and operating wind turbine energy facilities. In March 2009, Ecogen was advised in writing by the Prattsburgh Code Enforcement Officer that “no building permit [could]be required by the Town for [petitioners’ proposed wind energy project]” as “[t]here are no Town laws or ordinances which prevent [petitioners]from proceeding with construction.” On July 20, 2009, Ecogen received the permits required by the New York State Department of Environmental Conservation to construct a wind energy facility in the Town.

Discussions between Ecogen and the Town were not initially successful at assuaging concerns, but on December 18, 2009, the parties executed a written settlement agreement providing, inter alia, that “no approvals, permits or other authorizations from the Town are required in order for [petitioners]to develop, construct and operate the Project,” and the Town passed a resolution approving the settlement.

However, 20 days later on January 7, 2010 the newly elected Town Board, at the urging of environmentalists, passed a resolution concluding that the settlement agreement was “invalid, illegal, void, and of no force [or]effect” and voted to rescind the prior resolution of December 18, 2009 that had approved the settlement. On March 9, 2010, the Town Board enacted a moratorium on wind turbine development.

On December 27, 2013, the New York Supreme Court ultimately held, “Stipulations of settlement are favored by the courts and not lightly cast aside.”It is well settled that a stipulation of settlement is an independent contract subject to the principles of contract interpretation, and a party will be relieved from the consequences of a stipulation made during litigation only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident.

Thus, the parties were bound by the terms of the settlement agreement, and the court will enforce it. So finally the wind will blow turning turbine blades in Prattsburgh.

According to the American Wind Energy Association, at the beginning of 2014, wind power is increasing accounting for 4% of the energy generated in the U.S. Disputes and differences over wind turbines, often between NIMBY’s with roots in the 1960s ecology movement and the modern environmental industrial complex, are a growth industry.

The case is Ecogen Wind LLC v. Town of Prattsburgh Town Bd., 859, 2013 WL 6823368 (N.Y. A.D. 4 Dept. 12/27/2013)

Article by Stuart Kaplow, appearing courtesy Green Building Law Update.

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Walter’s contributions to CleanTechies over the past 4 years have been instrumental in growing the publications social media channels via his ongoing editorial and data driven strategies. He is the founder and managing director of Sunflower Tax, a renewable energy tax and finance consultancy based in San Diego, California. Active in the San Diego clean technology community, participating in events sponsored by CleanTech San Diego, EcoTopics, and Cleantech Open San Diego, Walter has also been a presenter at numerous California Center for Sustainability (CCSE) programs. He currently serves as an adjunct professor at the University of San Diego School of Law where he teaches a course on energy taxation and policy.

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