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Court rules in favor of Villenova residents in wind turbine lawsuit

VILLENOVA — On Monday, the Hon. James H. Dillon of the Chautauqua County Supreme Court put construction of Villenova’s 29 planned turbines (part of the Ball Hill Wind Energy Project) on hold due to an inadequate environmental review of the turbine height increase.

On Aug. 8, 2018, the Villenova Town Board voted unanimously to approve an increase in height from 495 feet to an unprecedented maximum height of 599 feet. The decision required a supermajority approval, as the Chautauqua County Planning Board did not support the height increase. Three weeks later, the town board of Hanover voted unanimously against the increase, which kept their six planned turbines at the 495-feet maximum height.

In September, 18 Villenova residents, represented by Richard J. Lippes of Lippes & Lippes in Buffalo, filed a petition against the Town of Villenova under Article 78 of the Civil Practice Law and Rules to review the town board’s approval of the taller turbines.

The petition cited multiple violations of the State Environmental Quality Review Act, including lack of a supplemental environmental impact statement for the change in height. The petition said there were no updated changes regarding noise impacts or impacts on radio, TV or cell phone reception at 599 feet. Instead, only an environmental assessment form was provided that based environmental consequences on a change of 104 feet in height, not the impact of an actual 599-feet turbine. Interestingly, in 2016 when the board considered the change in height from 420 to 495 feet (75 feet increase), they did require a SEIS to measure the potential environmental impact. However, the board did not require a SEIS for the increase of 495 to 599 feet (104 feet increase).

In Dillon’s ruling, he stated that the town, as lead agency for Ball Hill Wind, “is required to identify the relevant areas of environmental concern, take a hard look at them and make a reasoned elaboration of the basis of its determination.” Dillon went on to cite multiple court decisions that state the lead agency must consider the environmental issues and make an independent judgment that they would not create significant environment impact. He concluded by stating that the procedures involved in SEQRA require strict compliance, and “anything less will result in annulment of the lead agency’s determination of significance.”

In his ruling, Dillon pointed out that the town board’s records did not include any information about the effect the turbine height increase could have on the bald eagle population, which was studied in the 2016 SEIS. The judge also noted that the only mention of environmental impact of the placement of five miles of electrical lines underground was of the “decreasing of visual pollution.” But, Dillon pointed out, “there is no examination of the potential environmental impact in the area where the lines were to be installed.”

The lawsuit also listed multiple violations of Villenova town ordinances, including a planning board of two members (town law requires five or seven), conflicts of interest involving town board members and family with wind contracts, and zoning and wind law violations. Dillon did not address these violations in his ruling.

“The Town Board, as lead agency, failed to take the requisite hard look at these issues,” Dillon concluded. “Therefore, the Court returns this matter to the Town Board for either a SEIS or other steps to complete the SEQRA process and grants the motion of the petitioner to enjoin the construction of the project until it does so.”

The OBSERVER reached out to Lippes and the attorney representing the town board, Charles Malcomb of Hodgson Russ, for comments; phone calls were not returned as of Wednesday evening. Dillon’s complete ruling, a public record, can be viewed on the New York State Courts Electronic Filing site at https://iapps.courts.state.ny.us/nyscef/CaseSearch, search for case number EK12018001343.

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