Farmersville’s voiding of Alle-Catt road use agreement overturned by judge
- By RICK MILLER Olean Times Herald
- Jul 30, 2021
LITTLE VALLEY — A judge earlier this week overturned the Farmersville Town Board’s decision to void a road use agreement with Alle-Catt Wind Energy, but said it could be voided at some future date.
Acting Cattaraugus County Supreme Court Judge Terrence Parker also ruled that an anti-wind farm town board member did not have a personal conflict of interest when he voted to void the agreement.
On Oct. 12, 2020, the town board voted to void the 2019 agreement, which members on the new town board deemed insufficient to repair roads after heavy use to build a number of wind turbines.
Alle-Catt Wind Energy LLC, part of Invenergy, a Chicago-based alternate energy company that first proposed the Alle-Catt wind farm in 2017, sued the Farmersville Town Board and Mark Heberling, a member of the board, in state Supreme Court.
The company wants to install 117 wind turbines up to 600-feet tall in the towns of Farmersville and Freedom in Cattaraugus County, Rushford and Centerville in Allegany County and in Arcade in Wyoming County. The project would cost $455 million and generate 340 megawatts of electricity.
In its petition to Parker, Alle-Catt wanted a declaration that the town board’s vote voiding the road use agreement resolution was itself void. The company also asked Parker to declare the agreement binding and that it could not be terminated.
The petition included a request to annul the 2020 resolution voiding the road use agreement on the basis that Heberling had a conflict of interest. He is a former officer in Farmersville United and campaigned for the town board seat as being opposed to the wind farm. Alle-Catt sought to keep Heberling from participating in any matters related to the wind farm and cited his wife’s legal representation of groups opposed to the wind farm, including local Amish residents.
The town board’s response to the Alle-Catt lawsuit pointed to a 2001 local law that prohibits vehicles that weigh more than 8 tons from town roads, and asked Parker to declare the road use agreement void and unenforceable.
In addition, Heberling, who Alle-Catt initially included as a separate party to the lawsuit, alleged a violation by Alle-Catt lawyers of the state’s Strategic Lawsuit Against Public Participation, or SLAPP.
Parker allowed Alle-Catt to amend its petition to include Heberling as a public official and not as an individual and end allegations of conflict of interest. He noted Alle-Catt had testified that Heberling was “likely elected on the basis of his opposition to the project.” Heberling’s voting against the project, as he promised during his election campaign, “does not raise a conflict of interest,” the judge wrote.
Parker added, “(Alle-Catt) did not have an issue or believe there was a conflict of interest with town board members who had lease agreements for the project and voted to approve the agreement.”
The judge wrote in his decision filed on Monday “that the (road use) agreement is not void or unconscionable.” He noted there was “no termination language. However, that does not mean that the agreement can never be terminated.”
Farmersville Supervisor Pete Lounsbury said the judge’s decision was a mixed bag for the town. While Parker did overturn the town board’s voiding of the road use agreement and did not find it unreasonably excessive, he also refused Alle-Catt’s request to rule that it could never be terminated.
“The Town Board agreed to limit the bonding to only $100,000 per mile of town roads to a maximum of $1.4 million,” Lounsbury pointed out. “However, over 17 miles of town roads are slated to be used in the Alle-Catt project construction.”
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The supervisor said the current road use agreement leaves Farmersville taxpayers at risk.
“This agreement was negotiated behind closed doors,” he said. “There were three Invenergy leaseholders or family members of leaseholders on the Farmersville Town Board at the time.”
Lounsbury said that besides suing the town on multiple claims, “They also singled out only one board member who has been very critical against the project, Mr. Mark Heberling, the deputy town supervisor.
“Having been sued now three times by Invenergy for his acts as an official of the Town of Farmersville (not one of which he performed alone) Mr. Heberling brought a counterclaim under the recent New York State “SLAPP” statute against Invenergy (Strategic Lawsuits Against Public Participation),” Lounsbury pointed out.
Parker’s ruling clears Heberling “of any conflict or wrongdoing with respect to the road use resolution.”
With the issue of the conflict resolved against Invenergy, and Invenergy’s belated claim that Heberling was not being sued in his personal capacity, Heberling’s SLAPP counterclaim was dismissed.
Lounsbury was heartened that the court found that the road use agreement nevertheless can be terminated and denied Invenergy’s claim seeking a declaration that the agreement was not terminated by the board and denied Invenergy’s request for a ruling that the board breached an agreement.
“We had some victories here, and more importantly, we demonstrated that we are not going to be bullied by a billion-dollar company that is preying on our town and its taxpayers,” Lounsbury said. “Invenergy took advantage of the town of Farmersville when in 2019 a majority of the board had financial interests or family with financial interests in the Alle-Catt project.
“If Invenergy gets away with this road use agreement,” he added, “the town’s taxpayers will be the ones to suffer, and shame on the 2019 board members who negotiated it and voted for it.”
Heberling he was pleased the court found he had no personal conflict of interest in the process.
“It is outrageous when neither I, nor my family, have any financial interest in Alle-Catt whatsoever and Invenergy still accused me of a conflict of interest, and yet Invenergy thinks it is perfectly fine for their town board member leaseholders to vote on Alle-Catt issues favorably,” he said.
Sean Perry, an Alle-Catt project representative, said, “We applaud Judge Parker’s common sense ruling affirming the validity of the Farmersville road use agreement.”
Perry added that “Alle-Catt has the support of the community and hundreds of residents across Western New York. We look forward to continuing to work with the community to bring the project’s many economic and environmental benefits to the region.”