Ecogen, LLC v. Town of Italy, No. 06-CV-6196 L.

• Court: United States District Courts. 2nd Circuit. United States District Court of Western District of New York
• Writing for the Court: Larimer
• Citation: 438 F.Supp.2d 149
• Parties: ECOGEN, LLC, Plaintiff, v. TOWN OF ITALY, et al., Defendants.
• Docket Number: No. 06-CV-6196 L.
• Decision Date: 11 July 2006

Page 149

438 F.Supp.2d 149 ECOGEN, LLC, Plaintiff,
v.
TOWN OF ITALY, et al., Defendants. No. 06-CV-6196 L. United States District Court, W.D. New York. July 11, 2006.

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COPYRIGHT MATERIAL OMITTED

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Laurie Styka Bloom, Nixon Peabody LLP, Buffalo, NY, for Plaintiff.

Edward F. Premo, II, Megan K. Dorritie, Harter, Secrest & Emery LLP, Rochester, NY, for Defendants.

DECISION AND ORDER

LARIMER, District Judge.

The development of wind power projects, which convert wind energy into electricity, seems to be on the upswing in this country, but that growth has not been universally welcomed. See, e.g., Felicity Barringer, Debate Over Wind Power Creates Environmental Rift, N.Y. Times, June 6, 2006, at A18. As in Don Quixote, where one person sees a windmill, another sees a "monstrous giant" looming over the countryside.¹ This case involves one such

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proposed project that has met with local opposition.

Plaintiff, Ecogen, LLC ("Ecogen"), commenced this action under 42 U.S.C. § 1983, seeking relief from a moratorium ("the Moratorium") enacted by the Town of Italy (N.Y.) Town Board ("the Board"), which, for the duration of the moratorium prohibits the "construction or erection of wind turbine towers, relay stations and/or other support facilities in the Town of Italy." Ecogen has moved for an order preliminarily enjoining defendants from enforcing or continuing the Moratorium insofar as it relates to the construction and operation of an electrical substation within the Town of Italy. Defendants, who include the Town of Italy ("the Town" or "Italy"), the Town supervisor, and the Board, have moved to dismiss the complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, and under Rule 12(b)(6) for failure to state a claim upon which relief may be granted.

BACKGROUND

Ecogen is an independent power producer engaged in the development of windenergy projects (sometimes referred to as "wind farms") in New York State. Wind farms produce electrical energy through the use of wind turbines, which are windmill-like structures that use a wind-driven rotor mounted on a tower to create electricity through the use of a generator. According to plaintiff, only certain types of areas are suitable for the construction of wind farms. In particular, wind farms should ideally be located in areas with strong winds and nearby electrical transmission lines.

In 2001, Ecogen identified certain ridge tops in the contiguous Towns of Prattsburgh and Italy as viable spots for wind energy projects ("the Prattsburgh Project" and "the Italy Project"). Ecogen determined that it would be feasible to build about 30 wind turbines in Prattsburgh, and another 23 in Italy. None have been built to date.

One important feature of these ridge tops is their proximity to an electrical transmission line that runs, in part, through Italy. For the project to succeed, in either Prattsburgh or Italy, a substation would have to be built to connect with that line, and according to plaintiff, the best location for the substation, from an engineering standpoint, would be somewhere in Italy. Plaintiff states that the substation would be roughly 150 feet square, surrounded by a fence of about 200 by 300 feet, noiseless, and would be set well back from the nearest road or other property. Apparently, the chosen site is about one mile from the Italy-Prattsburgh town line.

In anticipation of the Prattsburgh and Italy Projects, Ecogen has acquired property rights and easements to an assemblage of properties in both towns. The Town of Prattsburgh has allegedly welcomed the Prattsburgh Project, and Ecogen has been proceeding with that project, but it cannot be completed until the substation is built.

The Town of Italy Board was apparently less receptive to the project for that town, however. On June 8, 2004, the Board passed a "local law Establishing a Moratorium on Construction or Erection of Wind Turbine Towers, Relay Stations and/or other support facilities in the Town of Italy." Dkt. # 11 Ex. D. The stated purpose of the Moratorium is to prohibit the construction of such structures "for a reasonable

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time pending the completion of a plan for control of construction of such structures in the Town of Italy as part of the adoption of comprehensive zoning regulations ...." Id. § 3(A). The Board also stated that it took this action "to protect the value, use and enjoyment of property in the Town" by its citizens. Id. § 3(B). Specifically, the Board stated that "a principal concern is the scenic and aesthetic attributes of the Town of Italy as they relate to the use of land in the Town for residential, recreational and tourism purposes," and that "the installation of wind turbine facilities in the Town of Italy may have an adverse affect [sic] upon the scenic and aesthetic attributes of the Town of Italy and a correspondingly detrimental influence upon residential and recreational uses as well as real estate values in the Town of Italy, unless properly controlled through zoning regulations." Id. § 3(C).

To fulfill these stated objectives, the Board decreed that "[f]or a period of six (6) months from and after the effective date of this Local Law, no construction or erection of wind turbine towers, relay stations and/or support facilities shall be permitted within the geographical limits of the Town of Italy," nor could any permits for such facilities be filed during that period. Id. § 4. The Moratorium became effective upon its filing with the New York Secretary of State on June 15, 2004. Id. at 1.

The Moratorium also contains a provision, entitled "Alleviation of Extraordinary Hardship," which provides that the Board "may authorize exceptions to the moratorium imposed by this Law when it finds, based upon evidence presented to it, that deferral of action on an application for facility construction, or the deferral of approval of the application for the duration of the moratorium would impose an extraordinary hardship on a landowner or applicant." Id. § 5(A). To apply for such an exception, the applicant must pay a fee of $500, together with a recitation of the relevant facts and supporting documentation. A public hearing on the application is to be held by the Board "no later than forty-five (45) days after the complete application for hardship exception has been filed with the Town Clerk." Id. § 5(C). The Moratorium provides that "[a]t the conclusion of the public hearing and after reviewing the evidence and testimony placed before it, the Town Board shall act upon the application," but it does not provide a time period within which the Board must issue a decision. Id. § 5(E).

As stated, the original duration of the Moratorium was six months. However, the Board has renewed the Moratorium several times since its original passage. It most recently did so on March 29, 2006, Dkt. # 24 Ex. A, and the Moratorium, which has now been in effect for about two years, is currently scheduled to expire-if it is not again renewed-in October 2006.

Because of the Moratorium, then, Ecogen has been unable to erect any wind turbines or related facilities within the Town of Italy, including the substation. Ecogen claims that this is holding up not only the Italy Project but also the Prattsburgh Project, which requires completion of the substation. Ecogen also contends that it has been unable to take certain procedural steps that are necessary to both projects (such as the completion of environmental impact studies), and that it is in jeopardy of losing certain tax credits, which are contingent upon the Prattsburgh Project's completion by December 31, 2007.

Ecogen has not applied for a hardship exception as provided for in the Moratorium, but through its attorneys it has written a number of letters to various Town officials objecting to the inclusion of the substation in the Moratorium. See Dkt.

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# 11 Ex. F; Dkt. # 30 Ex. B. These letters generally set forth Ecogen's position that, given the aesthetic concerns that were the stated impetus behind the Moratorium, there was no rational reason to include the relatively unobtrusive, and also explained the adverse consequences to Ecogen of not being able to proceed with the construction of the substation in Italy. All these letters went unanswered.

Ecogen commenced this action on March 29, 2006. The complaint purports to assert six causes of action. The first alleges that defendants have deprived plaintiff of due process of law, in violation of the Fourteenth Amendment to the United States Constitution, by enacting and perpetuating the Moratorium, especially as it relates to the substation, thereby denying plaintiff the "use of property based on an illegal, irrational and unconstitutional motivation." Complaint ¶ 58. The second cause of action seeks a judgment pursuant to 28 U.S.C. § 2201 declaring that the Moratorium is unconstitutional or otherwise unenforceable. The third cause of action alleges a "violation of 42 U.S.C. § 1983." The fourth cause of action seeks injunctive relief, and the final two causes of action assert claims under state law.²

DISCUSSION

I. Defendants' Motion to Dismiss

A. Facial or As-Applied Challenge?

As stated, defendants move to dismiss the complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), and under Rule 12(b)(6) for failure to state a claim upon which relief may be granted. The basis for the Rule 12(b)(1) motion is defendants' contention that plaintiff's claims are not ripe for adjudication, because Ecogen has not obtained a "final decision" from the Board concerning the application of the Moratorium to the construction of the substation.

In order for claims to be justiciable under Article III, the controversy must first be ripe. See Marchi v. Board of Coop. Educ. Servs. of Albany, 173 F.3d 469 at 478 (2d Cir.1999) ("ripeness is a constitutional prerequisite to exercise of...