County helps Somerset foot anti-wind legal fees 

The Town of Somerset, having spent $260,000 in attorney fees to fight Apex Clean Energy’s proposed wind farm installation, is about to get some help footing its legal bills.

Last week, by a unanimous vote, the Niagara County Legislature allocated $15,000 of contingency funds to the town, to help cover the legal fees in its ongoing battle to scuttle Apex’s plans for an up-to-70 wind turbine installation in the Barker-Lyndonville area. The turbines could be over 500 feet high.

Somerset Supervisor Dan Engert said that since 2015, the town has spent $260,000 on special counsel, attorneys Mark Davis and Dennis Vacco of the firm Lippes Mathias Wexler Friedman.

The law firm has worked on the town’s responses to Apex’s scoping statement, in which community stakeholders can question study protocols or suggest additional studies on the proposed project. It also defended Somerset when Apex sued the town planning board for ruling that proposed construction of a meteorological tower required a full-length environmental impact statement before the board could decide whether to sanction it. The town lost that battle in February 2017, when a state Supreme Court justice found a full study was not needed and ordered the board to approve or deny Apex’s request without it.

“It’s been a substantial financial burden on the town – one we didn’t ask for, but nonetheless we’re having to bear this burden,” Engert said of the legal fees.

Meanwhile, in May, the Yates town board voted to partner with Somerset and split the legal fees, according to Engert. Previously, Yates retained its own special counsel to represent its residents in Apex’s years-long application process.

Going forward, both towns will be represented by Lippes Mathias Wexler Friedman in matters regarding Apex.

“We’re doing everything we can to pool our resources and doing our best to defend the interests of our communities,” Engert said.

The proposed Lighthouse Wind project has fiercely divided residents of the close-knit, rural communities. Apex has stated more than 100 local landowners signed contracts with the company and cites the economic benefits that wind energy projects bring to host communities.

Some Lighthouse Wind supporters are frustrated with the town’s spending on legal services to fight a project that they see as beneficial.

Floyd Koerner said the town should instead spend to negotiate a favorable Payment In Lieu of Taxes agreement with Apex, to benefit taxpayers should the wind farm get a green light from the state.

Koerner also pointed out that Somerset Operating Company’s PILOT payments have decreased from nearly $1.2 million in 2008 to $139,000 this year, forcing the town to increase its tax rate by 113 percent in 2018 and straining the finances of residents with low or fixed incomes.

“I would think his efforts would be better spent if he tried to get a host agreement negotiated rather than waste a host of legal fees,” Koerner said of Engert.

But the wind farm opposition often has drowned out supporters at recent meetings of the town board, all five members of which are firmly against the Lighthouse Wind proposal.

“Our communities have overwhelmingly rejected these projects. … There is a myriad of reasons why this project should not go forward,” said Engert, citing potential impacts with noise, visual impacts and the possibility of interference with Niagara Falls Air Reserve Station.

In a statement, Apex affirmed its commitment to submitting its final application to the state later this year.

“We are working diligently through Article 10 which is a fairly new and comprehensive permitting process in New York,” said Paul Williamson, senior development manager. “This type of development requires coordination between numerous land agreements, a complex transmission interconnection process, thorough multiyear environmental studies and design engineering. With all of the requirements in mind, the project team is currently working towards the preparation of a permit application for the end of 2018. The final application will be submitted when we have completed all planning for a responsible project that will bring environmental and economic benefits to the communities.”

Engert commended the county for its willingness to help absorb the town’s legal fees. He was also pleased that Legislator John Syracuse, the resolution sponsor and representative of Somerset, included language in the resolution on studies showing negative human health impacts from noise levels commonly emitted by large wind turbines.

“When a community in the county is faced with a developer that is very much unwanted by the community, I thought it was a good gesture on the part of the county to come in and be a true stakeholder on this and stand with the town of Somerset,” Engert said. “They’re county taxpayers as well.”