DELMAR – A lawsuit filed by 31 residents against the Port of Albany and the Bethlehem Planning and Zoning boards was dismissed Tuesday, July 18 through a decision by State Supreme Court Judge James Ferreira after the court reviewed the actions of the boards.
The action, known as an Article 78 proceeding, was filed after the boards approved applications for and issued permits to the Port of Albany for a wind turbine manufacturing plant on Beacon Island in Glenmont. Oral arguments were heard in the case in November.
The lawsuit’s petitioners are residents who live near the project that asked the court to step in to reverse the decisions of the boards to stop the project due to concerns they had about the impacts of the plant, the proposed mitigation and overall processes used for the project’s approval.
The 49-page court ruling included exhaustive detail of the proceedings in its analysis and addressed each of the petitioner’s arguments individually.
Ferreira ruled in favor of the residents in determining that they did have standing to bring the case to court and it was appropriate to bring the suit, but from there it did not go well for the group.
The Court found that the residents did not file a challenge against the Zoning Board of Appeals in a timely fashion and any argument against it was not valid for that reason.
As for the arguments against the planning board, the judge was more specific.
He found the residents did not bring up arguments against the approval of the project during the review process and, therefore, could not bring in those new arguments in the article 78 lawsuit. The “petitioners cannot be heard to complain that the planning board unreasonably failed to undertake an analysis of issues that were not presented during the SEQRA review process.”
Ferreira also dismissed the argument that the residents were not given adequate notice of the public and SEQRA hearings because they were publicized in the Spotlight and Times Union, papers which the residents said they don’t read and they are not big enough or too wide in distribution to properly decimate the notices.
Both papers are designated as official newspapers for the county and town and the court found it undisputed that the notices were published in a newspaper of general circulation and appropriate. In this area they also found that it was not a requirement of the planning board to notify those residents within 200 feet of the applicants property line, but the Town did anyway. The residents argued that the town only notified people within 200 feet of the Port’s land and not the Niagara Mohawk property line next to it, which they said was part of the project.
Ferreira also ruled the residents’ attempt to present over 24 affidavits improperly, because the actions “constitute an improper attempt to introduce new information that is outside the administrative record that is the subject of this proceeding.”
The Court’s final review before dismissing the case entirely, determined that the Planning Board acted appropriately in the review of the project.
“The record reflects that the Planning Board complied both procedurally and substantively with the requirements of SEQRA in that it identified the relevant environmental concerns, took a ‘hard look’ at them and considered a reasonable range of corresponding mitigation measures and alternatives,” the decision read.
This suit is the first of three article 78 proceedings against the project, but the remaining two were filed in March and were by petitioners who appeared within the list of petitioners for the original lawsuit. The court said in filings that it wanted to address the arguments in the overarching first complaint before hearing oral arguments on the remaining two cases.
“The ruling says that all the procedural and substantive requirements of SEQRA have been met,” Bethlehem Deputy Town Attorney Mark Sweeney said. “The court wanted to take a ‘hard look’ at this and did, and after that, it found all of the approvals and corresponding permits were properly issued.”
Sweeney also acknowledged this is a project that has wide impacts.
“The Town of Bethlehem does not usually have a project of this magnitude,” he said. “But the court really honed in on the facts and various issues associated with the project really well and showed the Board did a good job.”
“The judge went through every aspect of the project on the table,” said Patrick Jordan, Council for the Port of Albany. “In the end, we have a record of every question posed. They looked at every single answer and how the port would handle the impact.”
Spotlight News reached out to attorney Christopher Dempf, who filed the suit on behalf of the residents multiple times, but he did not return calls to discuss the decision.
The Project Continues at the Port of Albany
According to the Port, much of the sitework, including the mitigation of an estimated 2 million tons of coal ash from a NiMo power plant next door that was piled on the property in the 1960’s, is near completion, but funding the construction of the actual wind factory has not been fully secured yet.
Port CEO Richard Hendrick said that compression and capping of the ash is near completion and the Port is scheduled to begin the installation of a bridge over the Normanskill between Beacon Island and the Port in August. Both are fully funded.
The bridge will connect the manufacturing on the island with the wharf at the port. The original concept plans for the redevelopment of the island included dredging the river and constructing a concrete platform to dock ships and barges to move the parts for offshore wind turbines.
Hendricks said that bids to complete that portion of the project proved to be well beyond the expected cost. The bids for that portion came in above $120 million and were put on hold.
Now the focus is on gaining a funding source for the construction of the actual factory on the site.
“We are not saying it has to be one body that fills this gap,” He said. “We are hoping that with the article 78 suit out of the way, it will remove some hesitation of those who could fund us.”
The next round of funding from New York State Energy Research and Development Agency is underway and grants should be announced soon, Hendricks said. The agency completed its RFP process for round three of funding in June.
This story appeared on page 3 of the July 26, 2023 print edition of the Spotlight
