Broome Cnty. Concerned Residents v. N.Y. State Bd. on Elec. Generation Siting & Env't
| Decision Date | 28 October 2021 |
| Docket Number | 531357 |
| Parties | In the Matter of Broome County Concerned Residents et al., Petitioners, v. New York State Board on Electric Generation Siting and the Environment et al., Respondents, et al., Respondents. |
| Court | New York Supreme Court |
Calendar Date: September 14, 2021
The Zoghlin Group, PLLC, Rochester (Benjamin E. Wisniewski of counsel), for petitioners.
Robert Rosenthal, Public Service Commission, Albany (John C. Graham of counsel), for New York State Board on Electric Generation Siting and the Environment, respondent.
Young/Sommer LLC, Albany (William A. Hurst of counsel), for Bluestone Wind, LLC, respondent.
Before: Garry, P.J., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.
Proceeding pursuant to CPLR article 78 () to review a determination of respondent State Board on Electric Generation Siting and the Environment granting an application by respondent Bluestone Wind, LLC for a certificate of environmental compatibility and public need to construct a wind farm.
Public Service Law article 10 provides for a comprehensive review of environmental and public interest impacts and the issuance of a certificate of environmental compatibility and public need as a precondition to the siting of a major electric generating facility within the state (see Public Service Law §§ 160 [2]; 162). Ultimate authority for this review is delegated to respondent State Board on Electric Generation Siting and the Environment (hereinafter the Siting Board) within the Department of Public Service (hereinafter DPS) (see Public Service Law § 160 [4]). In October 2016, respondent Bluestone Wind, LLC (hereinafter Bluestone) submitted to DPS a notice of intent seeking a certificate to construct the Bluestone Wind Farm Project - an approximately 125-megawatt wind powered electric generating facility with a proposed location in the Town of Sanford (hereinafter the Town) and the Town of Windsor, both in Broome County. This was accompanied by Bluestone's preliminary Public Involvement Program Plan (hereinafter PIP). As initially proposed, the project included the construction and operation of up to 40 wind turbines. The October 2016 PIP noted that Bluestone had already begun engaging with stakeholders, including the Town, regarding the project plans. Following a review and in consideration of recommendations from DPS staff, Bluestone submitted a revised PIP in December 2016.
In January 2017, the Sanford Town Board adopted Local Law No 1-2017 of the Town of Sanford (hereinafter Local Law No. 1) amending the Town's Land Use Management Local Law and setting forth regulations for the design, siting and installation of renewable energy systems, including wind energy conversion systems. In its subsequent application to the Siting Board, submitted in September 2018, Bluestone outlined the various local laws and ordinances that could impact the project. As relevant here, Bluestone stipulated, after consulting with the Town, to the applicability of Local Law No. 1 in regard to both its procedural and substantive requirements. Bluestone expressly noted that "[t]he location of the proposed [f]acility will conform to all such local substantive requirements" and that, as such, it was not requesting that the Siting Board grant any waivers for provisions of local law.
The Siting Board deemed Bluestone's application complete on December 27, 2018, thus triggering a statutorily imposed one-year period for it to render a determination (see Public Service Law § 165 [4] [a]). As part of its application, Bluestone submitted a required intervenor fee of $124, 000, "to be disbursed at the [Siting Board's] direction, to defray expenses incurred by municipal and other local parties to the proceeding... for expert witness, consultant, administrative and legal fees" (Public Service Law § 164 [6] [a]; see Public Service Law § 163 [4] [a]). Upon each of their timely requests, this funding was distributed among the Town, the Town of Windsor, petitioner Delaware-Otsego Audubon Society, Inc. (hereinafter DOAS) and petitioner Broome County Concerned Residents (hereinafter BCCR) (see Public Service Law § 164 [6] [b]). Administrative Law Judges from the Department of Environmental Conservation (hereinafter DEC) and DPS were appointed to serve as Hearing Examiners. Following prefiled testimony on all issues, hearings were held over a period of three days, from July 9 through 11, 2019.
After the evidentiary hearing was closed, on August 13, 2019, the Sanford Town Board approved Local Law No. 2-2019 of the Town of Sanford (hereinafter Local Law No. 2) affecting a temporary, three-month moratorium within the Town on the development and construction of wind energy conversion systems "so as to allow the Town time to study the potential impacts, effects, and possible controls over such activities." Considering this development, BCCR - but not the Town - filed a motion with the Siting Board to stay the proceedings for three months. The Hearing Examiners denied said motion, finding that it was statutorily bound to render a decision within 12 months of Bluestone's application (see Public Service Law § 165 [4] [a]).
In October 2019, the Hearing Examiners issued a recommended decision to the Siting Board which, in part, took judicial notice of Local Law No. 2, but determined that it was a procedural law that was inapplicable to the proceeding. Ultimately, the Hearing Examiners recommended that the Siting Board grant Bluestone a conditional certificate for the project, subject to a number of specified terms. Nearly all involved parties in opposition to the project - notably, excluding the Town - then filed briefs on exception in October 2019. Following the completion of this briefing process, the Sanford Town Board approved Local Law No. 3-2019 of the Town of Sanford on November 12, 2019, extending the moratorium created in Local Law No. 2 until the earlier of either its repeal or March 1, 2020.
On December 9, 2019, the Siting Board issued a press release indicating that it would meet on December 16, 2019 to consider Bluestone's application. On December 11, 2019, BCRR (again, not the Town) notified the Siting Board that the Town had adopted a new superseding local law regulating, among other things, wind energy generating facilities. On December 13, 2019, the Town submitted a letter indicating that it had approved and filed, on that same date, Local Law No. 4-2019 of the Town of Sanford (hereinafter Local Law No. 4). [1] The Town did not otherwise comment on Local Law No. 4, which superseded Local Law No. 1 and imposed substantial additional restrictions on wind energy converting systems. Nonetheless, the Siting Board convened on December 16, 2019 and granted Bluestone's application and issued the certificate, subject to nearly 150 conditions. Petitioners thereafter filed separate applications for rehearing, both of which were denied by the Siting Board. Petitioners then commenced this CPLR article 78 proceeding in this Court in May 2020 and filed an amended petition in August 2020 seeking, among other things, an order vacating the Siting Board's grant of the certificate to Bluestone, reopening the record in the proceeding for further adjudication of issues and enjoining Bluestone from engaging in further construction on the project until the matter is fully decided. [2]
We turn first to petitioners' related contentions that the Siting Board failed to consider Local Law No. 4 and that the Siting Board erred in refusing to grant a six-month extension to reopen the hearing to accomplish same. [3] As a threshold matter, although Public Service Law article 10 expressly preempts all local procedural laws (see Public Service Law § 172 [1]; 16 NYCRR 1001.31 [a]) with respect to substantive local requirements, the Siting Board cannot grant a certificate unless it determines with certain exceptions, that "the facility is designed to operate in compliance with applicable state and local laws and regulations issued thereunder concerning, among other matters, the environment, public health and safety" (Public Service Law § 168 [3] [e]; see 16 NYCRR 1001.31 [d]). Thus, article 10 unmistakably directs that substantive local laws be considered; however, how such laws are considered is carefully set forth and intertwined within the regulatory provisions, reflecting the overall legislative intent. To that end, the Siting Board may elect "not to apply, in whole or in part, any local ordinance, law, resolution or other action or any regulation issued thereunder... which would be otherwise applicable if it finds that, as applied to the proposed facility, such is unreasonably burdensome in view of the existing technology or the needs of or costs to ratepayers whether located inside or outside of such municipality" (Public Service Law § 168 [3] [e]). Notably, a municipality "seeking to enforce any local ordinance, law, resolution or other action or regulation otherwise applicable shall present evidence in support thereof or shall be barred from the enforcement thereof" (Public Service Law § 166 [1] [j]). Ultimately, the Siting Board must make a final decision "upon the record made before the presiding examiner" (Public Service Law § 168 [1]). Moreover, all "proceedings on an application shall be completed in all respects... including a final decision by the [Siting Board], within [12] months from the date of a determination by the chair that an application" is complete (Public Service Law § 165 [4] [a]). However, the Siting Board "may extend the deadline in extraordinary circumstances by no more than six months in order to give consideration to specific issues necessary to develop an...
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