wpeg article 78 ~ bowers ~ affidavit of albert h. bowers iii

8/8/2019 WPEG article 78 ~ Bowers ~ Affidavit of Albert H. Bowers III

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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF JEFFERSON

WIND POWER ETHICS GROUP

Petitioner-Plaintiff,

- against-

PLANNING BOARD OF THE

TOWN OF CAPE VINCENT, and

RICHARD EDSALL, TOM RIENBECK,

GEORGE MINGLE, ANDREW BINSLEY, and

KAREN BOURCY, in their capacities as

planning board members,

A F F ID A V IT OF

ALBERT H. BOWERS III

Index No. 10-2882

Respondents-Defendants, and

ST. LAWRENCE WINDPOWER, L~C,

Respondents-Defendant

ALBERT H. BOWERS III being duly sworn, deposes and says:

I. I live at 11891 Academy St, Chaumont, NY in the Town of Lyme, and

have lived at that address since April 2004.

2. I have been a member of the Town of Lyme Planning Board since 2007,

and prior to that formed a citizen's committee to research the economics and the

effects of wind generated power projects.

3. I had not had time, prior to about August 15th, to examine the FEiS that

St. Lawrence Windpower was to present to the Cape Vincent Planning Board as

lead agency on August 18,2010 because the document had not been provided to



the Lyme Planning board for our review, but I was made aware that it was

available on the internet. When I looked at it and saw that the Lyme Planning

Board was listed as an involved agency, I contacted the other members of the

planning board with the idea that we needed to make our comments on the

proposed FEIS known prior to its presentation to the Cape Vincent Planning Board

on August 18. Upon our review the document appeared to be woefully inadequate

and incomplete as is noted in our letter of August 17, 20 10 (the "August 17

letter"), attached hereto as Exhibit A.

4. The August 17letter was reviewed by members of the planning board

prior to sending it. The fInal version was reviewed by Paul Norton, Chairman of

the Lyme Planning Board, However Mr. Norton was engaged in working on a boat

for a customer of his at the time and asked me to sign and transmit the letter.

5. At the time of the August 17 letter I was aware that a great many

substantive comments had been submitted to the lead agency by citizens at earlier

public hearings about the DEIS and SDEIS. However, based on my review of the

proposed FEIS it seemed as if none of those comments were addressed by St.

Lawrence Windpower or by the Cape Vincent Planning Board because the project

proposal described in the FEIS was essentially unchanged, except that the size of

the project was reduced. Even the reduction in size did not respond to specifIc

concerns expressed in public comments, including comments submitted by the

Town of Lyme.

6. The August 17 letter was sent by fax to the Cape Vincent town office



after a review of the final draft with Paul Norton, Lyme Planning Board Chairman.

(Paul was at work on a project for one of his clients at the time we reviewed the

letter and asked if I would sign it and send it out, as I have a complete home

office.) Receipt of the faxed letter was confirmed the same day by an email from

Urban Hirshey, Cape Vincent Supervisor.

7. On October 12,2010 Chairman Paul Norton sent another letter to the

Cape Vincent Planning Board after it failed to respond in any manner to the

August 17 letter. The October 12, 20 I 0 letter, attached hereto as Exhibit B,

details the ways in which the Cape Vincent Planning Board failed to follow the

SEQRA process and failed throughout the process to communicate or notifY the

Lyme Planning Board.

8. On November 29, 2010 Town of Lyme Supervisor Scott Aubertine sent

a letter to the Town of Cape Vincent clarifYing the status and substance of the

August 17 letter and explaining why the Lyme Planning Board, by its August 17

letter, specifically declined to recognize the validity of the FEIS. This letter is

attached hereto as Exhibit C.

9. Supervisor Aubertine's November 29 letter is accurate in stating that

there was little or no communication or correspondence to any of the involved

agencies listed in the FEIS. The letter states: "Because of the lack of

communication, the Lyme Town Board does not accept the validity of the FE/S."

10. The August 17 letter is informed by a substantial body of knowledge

regarding wind facilities in the town of Lyme as several of the Lyme Planning



Board members spent more than a year drafting a zoning law pertaining to the

siting of wind energy facilities in the town, based on a thorough survey of

taxpayers, and a survey of available information as to the effects of wind turbines

already installed and operating in other areas.

II. During the time the Cape Vincent Planning Board was conducting its

SEQRA review of the S1.Lawrence Wind project DEIS and SDEIS, the Lyme

Planning Board was also actively engaged in the development of an updated

comprehensive plan for the Town of Lyme and knowledge regarding wind

facilities was required to evaluate plans for the proposed wind energy facility in

Cape Vincent and its transmission lines in the Town of Lyme. The wind project

proposed by St. Lawrence Wind is also important to Lyme because the project

would establish a precedent for a similar wind project planned by BP whose

project area would include both Lyme and Cape Vincent.

dJOI~ ALBERT H. BOWERS III

,2010

K A R E N g - FITZGERAL, ;NOiary puon, Slale o~ New Vorll

Ouallfle(l" Jellersor. ~ 7 r n tyCOl"l'lmisslon Expires l f l.;)t1 I I t . f



Exhibit A

Town of Lyme Planning Board Member Albert H. Bowers III, letter to Town of

Cape Vincent Planning Board, dated August 17,2010



Exhibit B

Town of Lyme Planning Board Chairman Paul Norton, letter to the Town of Cape

Vincent Planning Board, dated October 12, 2010



Exhibit C

Town of Lyme Supervisor Scott Aubertine, letter to the Town of Cape Vincent,

dated November 29,2010



, - - . t , , ' t f i . l - t

\ :*j , ' j ' ' i r , ' - F- ' ,

PlanningoardJeffersonCounty

P.O.Box66CHAUMONT, EWYORK 13622

PH : (315)649-2788 FAX: (315)649-2049 TTD: (800)662-1220

August 7,2010

Townof CapeVincentPlanning oardTownOff iceBuilding1964NYS Rte12ECapeVincent ,NY 13618

St. LawrenceWindpower EIS

To: ChairmanRichardEdsall nd members, arenBourcy, homas ngersoll , ndrewBinsley, nd GeorgeMingle:

The LymePlanning oard s an nvolved gencypart icipat ingn he SEQRAprocessor he abovecaptioned roject. n spiteof ourstanding, ur boardwas notpresented i tha copyof he FEISas an involved gency ndconsequentlye havehadto undertake rushed, eview f the FEIS.We understandhe FEISwil lbe submittedoyouon August18 oryouracceptancen accordance ithyour unction s LeadAgencyfor he SEQRprocess.

In our review f the documentit led FINALENVIRONMENTALMPACTSTATEMENT, ROPOSED T.LAWRENCEWINDPOWER ROJECT, OWNSOFCAPEVINCENT& LYME, EFFERSON OUNTY,NEWYORK,"we f ind hat, n severalimportant espects, t fails o satisfy he requirements f NYS DEC n an adequatemanner ndwe recommendhat t should ot, herefore, e accepted y you n your

funct ion s LeadAgency.

Someof the many ai lureso fol low he DEC equirementsreas ollows:

. There s no description f the need or and benefits rom he proposed

development s is required y NYSDEC. Thiswould equire xtensivediscussion nd analyses emonstrat ingy whatmeans he highly ariable nd

unpredictableowergeneratedrom he proposed ind acil i ty i l lmaterial lyreduce he useof fossi l uelsor he emissions enerated y heoperat ion f theelectr ical r id.

. Further,here s no nvestigat ionr verif icat ionhat he ransmissionf the power

to be generated y thisprojectand he adjacentproposedBP windprojectcanbe effectivelyransmittedo areasof the state equiring uchpower hrough he

Chaumont ub-stat ion.

. Thesoundstudypresenteds clearly n attempt o subverthe ntent f the DEC

noise equirements. hebackground oise evels regrossly verstated nd

SLW consultant essler aschosen o ignore he comments f Cavanaugh occi

Associates, r.PaulCarr,Mr.ClifSchneider nd others n hisverypoint.A



T_own_f ape_ incent,planningBoard Pege-2

recentarticleby NancyMadsen n the WatertownDailyTimesalso revealed hi sshortcomingn hestudy

The ownof cape Vincent 's onsult ing ngineers,ncluding n acoustic xpert,stands irm n their ecommendationhatSLWAcciona's st imate f backgroundnoise s elevated.As a consequence,he proposed etbacks etweenuibinesand non-part icipat ingropert ies

re ar ooclose.Therefore,n thisbasisalone,the Planning oard hould eject hisFEISand require LW o complywith herecommendationsf he own's ngineeringonsultants,.g.,Bernier arrAssociates nd Cavanaugh occiAssociates.

DEC recommendshatnoisebe permittedo increase ot more han6 dBbeyond stablishedackgroundevels. n addit iono inf lat inghe backgroundlevels,Hesslerreats he6 dB, notas an upper imit o sound ncreases, utseems o use t as a target esign alue,whichwil lbe actually xceeded nderanumber f operat ing ondit ions. hispract ice dded o the overstatementf thenightt ime ackgroundoise evelswil l esult n residents eing xposedointrusive nd annoying oise evels.

Hessler's elect ion f 42 dB as an appropriateound everor adjacentresidences il l esult n ntolerableoise evels or many esidences.Measurementsf background oiseperformedocallyndicate ackgroundsound evels f about25 dB at nightwhenpeopleneed o sleep. f the resultantl imitwere6 dB higher t would esult n a maximum ermittedound evelof 31dB. This imit hould e observed t the propertyinesof non-part icipat ingresidents ndproperty wners, ot at the residence s SLWproposes.Thislevel s significantly ore olerablehan the 42 dB proposed y sLW at (most)residences nd herefore i l laffect he number f turbines nd he placement fthose urbines.

I t is apparenthatHessler/sLWookupon he DECguidelines otas a way oprotect esidentsrom ntrusive nd annoying ound evels, utsimplyuse t as a

means o ustify he highest ossible esign ound evelso increasehe numberof turbineso be ocated ithin he project oundaries.

SLW rel ies n the widely iscredited oen eport o supporttscontentionhatpropefty alueswil lnotbe affected, hi le gnoringhe simple act,observed ylocal ea lestatebrokers,ha tvirtually verythingn CapeVincent s currently orsaleandnothing anbe soldbecause f the hreatof winddevelopment.

Theentire ssueof damage o birdsand batsby wind urbines eeds o be re-evaluatedn viewof he disturbingtat ist icshathave ecently merged rommonitoringhedamage oneby he urbines n neighboring olfe lsland.

Lyme'sown windsurvey ndicatedhat 80 % of respondents anted hetransmissionines o be buried.Thispossibi l i tys not mentioned r evaluatedn

the FEISeven hough he bulkof the ransmissioninewil l ie n he TownofLyme.

The mit igat ion easuresrenovationf two community aults nThreeMileBayCemeteryand vegetative creening) roposed o compensatehe Townof Lymefor he ntrusion f he ransmissionineare meaninglessnd rivial.

Last ly,t wouldseem easonablehat f the chief awenforcementff ice n thestate s investigat inginddevelopmentnd municipal f f ic ialsn CapeVincent



Towno_f ape- ince_n!,lanningBoard pg_ge

thatanyprogressn heSEQR rocesshould ehaltedntil ompletionf heAG's nvestigation nd reporting.Theremaywell be findings hat will haveaprofound ffecton the outcomeof Acciona's rojectproposll.

Theseare usta sampling f he nadequaciesf the FEIS,whichshouldberejected n August18, as failing o meet he intentof the DECrequirements.

For he Townof LymePlanning oard,

%*lbertH. Bowersll

cc: LymeTownBoard



Councilman

WARREN A JOHNSON

Councilman

DAN VILLA

Councilwoman

ANNE HARRIS

JEFFERSON COUNTY

P.O. Box 66

CHAUMONT, NEW YORK 13622PH: (315) 649-2788 FAX: (315)649-2049 lTD: (800)662-1220

E-Mail: [email protected]

Councilman

DON BOURQUIN

November 29, 2010

T Q w lil'Q flt~ if ~ i!:V Il'lt £ e n lf T ! : l W H Boa rd

Town of Cape Vincent Planning Board

PO Box

Cape Vincent, New York

Dear Respective Boards,

I have been directed by the Lyme Town Board to write you in regards to the lettersent to you by the Town of Lyme Planning Board stating its disapproval of the

S.E.Q.R. and F.E.I.S. process which was followed for the St. Lawrence Wind Project.

This letter is in no way a show of support for the Article 78 proceeding against the

Town of Cape Vincent Planning Board, nor is it intended to show support for WPEG.

It is merely correspondence sent in an effort to clear up some confusion and

misunderstanding, and to express our disappointment, and regrets, at the lack ofcommunication between our two towns.

I have been advised by counsel that the Town of Lyme Planning Board should not

have been classified as an involved agency. It is not the duties of our PBto Issuepermits, variances, etc. Those duties are given to the Town of Lyme Zoning Board of

Appeals, who was included as an involved agency, along with other towndepartments.

Per a discussion with Mr. Tim Conboy of Acciona Energy, I was informed that it is atypical procedure to include all town agencies in order to ensure covering all bases.In this case, they were incorrect to include the Town of Lyme Planning Board, whose

role is defined differently from that of most town planning boards. Hence, the

confusion and misunderstandings.

However, the letter written on behalf of the Town of Lyme Planning Board is

accurate in stating that there was little or no communication or correspondence toany of the involved agencies mentioned in the F.E.I.S. (Table 1-1). Section 1.2 "listof Required Permits, Approvals and Recommendations" lists not only the Town of

Lyme Planning Board, but also the Town of Lyme Zoning Board of Appeals and "Town

of Lyme Departments" (obviously another attempt by Acciona Wind to "cover all

bases"). Unfortunately, when each of these boards and other departments were

asked if they received correspondence from any agency at the Town of Cape Vincent,

mailto:[email protected]

mailto:[email protected]



we were informed they had not. Apparently, the only recent correspondence has

been the receipt of the Final Environmental Impact Statement. Because of the lack

of communication, the Lyme town board does not accept the validity of the F.E.I.S.

With the inclusion of the Town of Lyme on the statement header, the mention ofseveral Town of Lyme agencies and the obvious plan to route the transmission lines

through Lyme, it is felt that a more concerted effort to supply us with project

updates and information would have been appropriate, and greatly appreciated.

With that said, the Town of Lyme remains open to receiving any information,

comments, requests and recommendations from any Town of Cape Vincent agency.

The Town of Lyme is sincere in expressing its hopes for a continued relationship of

friendship and neighborliness.

For the Town Board,

Scott G. Aubertine

Supervisor, Town of Lyme

PO Box 66

Chaumont, NY 13622

wpeg article 78 ~ bowers ~ affidavit of albert h. bowers iii

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