HomeMy WebLinkAboutBlack Oak Response to the Jude Lemke's Letter of April 12, 2016 Black Oak Response to Jude Lemke's Letter of April 12,2016
April 26,2016
Excerpts from Lemke's letter are in black and our responses are in red.Lemke's further responses are in
green.
It is apparent that BOWF's owners are anxious to begin construction immediately because Congress is
phasing out financial incentives(tax credits)for wind generators over the next five years, beginning in
December 2016.The owner of the Project must begin construction this yearto receive the full credits.
Not correct.This project plans to Use the Investment Tax Credits, not Production Tax Credits,which do
not expire for S years.This is outlined carefully in our investment prospectus.
Whether we are talking about the Production Tax Credits or the Investment Tax Credits,the answer is
still the same. BOWF needs to start construction by the end of the year to secure 100%of those
benefits.
Section 48(a)(5)(C)of the Internal Revenue Code permits BOWF to elect a 30%Investment Tax Credit in
lieu of claiming the Production Tax Credits. On December 18,2015,President Obama signed into law
the"Protecting Americans from Tax Hikes Act of 2015" (PATH). PATH amends Section 48(a)(5)(C)to
phase out the Investment Tax Credit beginning in 2017. Any construction beginning after December
31, 2016 will result in the Investment Tax Credit being reduced by 20%for projects beginning
construction in 2017,40%in 2018 and 60%in 2019. For projects beginning construction after 2019, -.
the credit is repealed:
The definition of"construction"for purposes of both the ITC and the PTC<are the"same. BOWF justifies
the construction they undertook without a SEQR or Enfield Town Wind Energy Permit in December
2014 as necessary to claim the Investment Tax Credit. But the IRS rules at that time required that
they:
1) Begin"physical work of a significant nature" before Jan. 1,2015,which can include the
purchase of infrastructure but which must be substantial and CONTINUOUS physical work
activities,or
2)Spend at least 5%(i.e.,about$2 million)on construction and/or infrastructure purchases.
(That 5%cannot include"planning or designing,securing financing,exploring,researching,
obtaining permits,licensing,conducting surveys,environmental and engineering studies,
clearing a site,test drilling to determine soil condition,or excavation to change the contour of
the land(as-distinguished from excavation for foundations and footings).)
There is no way BOWF meets the continuous test for physical work and they clearly haven't spent$2
million on qualifying construction/infrastructure. The PATH legislation mentioned above,extends the
deadline for BOWF to either commence physical work of a'significant nature or spend at least 5%of
the project costs on construction and/or infrastructure purchases to December 31,2016. If they don't
do either,the Investment Tax Credits will be reduced as outlined above depending upon when they do
meet such test.
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What is worse,the Town's handling of this Project has been cloaked in secrecy,which calls into question
the ability of our Town Government and its paid contractors to protect their citizens.Many aspects of
this Project are still unclear.It is not yet known exactly where all the turbine towers and other
infrastructure will be located,and it certainly is not clear that this proposal is the final expansion of the
Project's footprint.Many hard questions need to be asked by the Town Board as lead agency under
SEQR. I raise some of them in this letter.
The only reason we proposed to change the layout was to accommodate the wishes of a landowner,who
has been under a lease for six years,who no longer wants to participate in the project.The layout we got
approved a year ago was perfectly acceptable from our point of view, but we were trying to be good
neighbors and not force landowners to do things they've had a change of heart about.
BOWF is being disingenuous. The good neighbors in this case are really the landowners themselves!
BOWF had to move the substation because they have no right to force that landowner to sell land to
them for the substation and it is unclear,at best,whether they still have a legal right to require him to
allow a turbine on his property. Distressed neighbors of this landowner,who hadn't spoken to him in
over 7 years since he first signed his lease,are thrilled by his recent actions to distance himself from
this project and these old friends are now on speaking terms once,again.-Furthermore,it appears that
BOWF is unable to meet the town's legal setback requirements on another landowner's property
without that landowner's permission given the larger blades of the GE 2.3MW turbines. As of today,
that landowner has refused to grant that permission because he is realizes the hardship it imposes on
his next door neighbor who had planned to build on the land next to where'-that turbine would go.
I believe that the Town of Enfield has failed to make Black Oak comply with the substantive and
procedural requirements of SEQR.Additionally,I believe it is clear that a majority of the Town Board has
placed the economic interests of Black Oak ahead of the safety of its citizens. Further review of this
Project is needed before any_approval of the modification is granted'.
Charging"that a majority of the Town Board has placed the economic interests of Black Oak ahead of the
safety of its citizens"seems a bit premature since the Board has only voted to accept the Draft SEIS as
complete and has said nothing about the substance of the document.
There are plenty of substantive and procedural steps that have already occurred with little or no real
review by the Board.
The Project and the SEQR Review Is Shrouded in Secrecy in Violation of Law The Town's files and its
communications with BOWF concerning this Project should be oPen and readily available for
examination.New York's Freedom of Information Law("FOIL") requires broad access to the inner
workings of government to ensure transparency and to hold leaders accountable for their actions.The
legislative declaration when FOIL was enacted says it all:
The legislature hereby finds that a free society is maintained when government is responsive and
responsible to the public,and when the public is aware of governmental actions.The more open
a government is with its citizenry,the greater the understanding and participation of the public
in government.NYS Public Officer's Law,§84.
FOIL's expansive scope has been confirmed'repeatedly by judicial decisions and the opinions of New
York's Committee on Open Government.They instruct that FOIL is intended to ensure maximum access
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to government records and any exception which acts to limit access must be very narrowly construed.
The burden is on government agencies that seek to limit disclosure of public records to justify denial of
access to public records.SEQR also requires public disclosure of information arising during the
environmental review of an action.According to the SEQR regulations enacted by NYSDEC:
[a]ll SEQR documents and notices,including but not limited to[Environmental Assessment
Forms],negative declarations,positive declarations,scopes,notices of completion of an
[Environmental Impact Statement(EIS)], EISs,notices of hearing and findings must be
maintained in files that are readily accessible to the public and made-available on request.
Ms. Lemke has been keeping the Town Clerk of Enfield busy with her many FOIL requests,which to our
knowledge are being handled properly.Black Oak has always made the various EIS documents and 2
findings statement available on its website.To our knowledge,we are not required(nor has anyone ever
asked)that we post on our website every past public notice,record of vote,and email conversation
regarding the project. In our opinion,charging that the SEQR Review is"in violation of the law"on this
matter is not justified.
I think the explanation outlined above speaks for itself. I should riot have to constantly file FOIL
requests to obtain these documents. I am sure the Town Clerk would welcome any relief from these
FOIL requests BOWF can provide her complying with the FOIL and Open Meeting laws going
forward.
Later,a BOWF representative admitted at a Wind Advisory Committee meeting that the Town's
consultant had already received a draft of the SEIS(although a copy was not available to the public).
requested a copy of that document from the Town Clerk under FOIL. In response,I was told that BOWF
claimed that it was a "draft"so it was not available to the public until the Town Board determined that it
was"complete."
Our understanding at the time,supported by our attorneys{though not Ms.Lemke's),was that until a
document was approved by the Town Board, it wasn't available for publicreview.We were simply
following the legal advice of the attorneys. Ms.Lemke did FOIL that-unapproved draft document and it '
was provided to her.
It was provided to me because it was a public document! BOWF's rationale for denying my request
has been expressly rejected by Department of State's Committee on Open Government on several
different occasions. Attached is an advisory opinion from the Committee that is right on point..
Completeness for purposes of SEQRA is separate and distinct from access for purposes of the New
York State Freedom of Information Law.
My concern for this violation of FOIL is heightened,because of the apparent relationship between Mr.
Krogh and the original principal of the Project,John Rancich.According to a May 4,2007 on-line article in
National Wind Watch which was attributed to a reporter from ithacajournal.com,Guy Krogh was
originally introduced to the Town Board by John Rancich,to"help answer questions"posed by residents..
Guy Krogh is the municipal attorney for many towns in the area,including Enfield. He does not generally
represent Enfield on wind-related subject matters,which are the purview of Frank Pavia of Harris Beach.:..
But he does represent the town with respect to the interpretation of FOIL and Open Government.
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My consultant needed the Town's data so he could run it through his own software and verify the
results. I asked the Town to provide me with such data in a usable electronic format and 1 was informed
that the Town's SEQRA attorney,Frank Pavia,had denied that request and was only willing to provide the
data in paper form(a stack of over 100 pages that was useless to my consultant).Again,I was forced to
have my own lawyer(at my expense)point out to Mr. Pavia that the express language of FOIL applies to
the request:
"Per Public Officers Law§87(5)(a) 'An agency shall provide records on the medium requested by
a person,if the agency can reasonably make such copy or have such copy made by engaging an
outside professional service.Records provided in a computer format shall not be encrypted'The
Town is required to provide the document in the format that it possesses.
The Town only has a pdf,which is what it provided to Ms.Lemke.We only have a pdf as well,and do not
have it available In any other format either.
BOWF is being cagey again. We have asked for the underlying data that was input into a sound model
that is commonly used throughout the profession in order to derive the output discussed.in the SETS.
This type of data is commonly shared among sound experts and my sound expert,who has 20 years of
experience,cannot ever recall having this data denied to him. The pdf referred to by BOWF in its
answer above is simply a copy of the noise report included in the original DEIS and only contains the
outputs,not the inputs we have requested. In fact,BOWF and its consultants undoubtedly have these
records and they are undoubtedly in machine readable form as that is format in which they collected
the data to begin with. We have their"answer"(i.e.the outputs)in the SETS as to what they believe
the sound levels are. We are simply asking them to"show the math"(i.e.,the inputs)used to derive
those answers. Imagine if my sound expert were to just present data without the underlying data to
prove how he derived it. BOWF would certainly call foul.
Who Controlled this SEQR Review?As previously stated,I recently learned that representatives of BOWF
and the Town's paid consultants have been inconstant communication about the draft SEIS since as early
as January 21,2016 when BOWF first forwarded the SEIS to LaBella.
It is now clear that from that time forward,IBOWF pressured LaBella to expedite its review,and both
sets of consultants acted to ensure that the public was not aware of this process. For example,by email
dated January 21,2016,James Pippin("Pippin"), project managerfor BOWF's consultant Haley&Aldrich,
forwarded the Draft SETS(without attachments). His email directed: "[p)iease begin your review.If you
are available either tomorrow or,Monday,I would like to have a call to go over the schedule for your
review.We anticipate that this should not-take more than 1 week to complete(emphasis added)." In
other words,BOWF's consultant told LaBella how long the Town's review should take.On February,1,
2016, Kathy Spencer of Haley&Aldrich advised Pippen by email,with a copy to the Town's SEQR lawyer
Frank Pavia("Pavia"),that LaBella had already submitted preliminary comments to Haley&Aldrich about
the SEIS,and that such comments should not be leaked to the public:"Jim,as we discussed, here is
preliminary comments from LaBella on the SEIS dated January 2016 forthe Black Oak Wind Project''
Our understanding throughout the process was that there is a stage at which the document is fit for
public review,and a draft stage at which it isn't a public document.We were indeed trying to expedite
the process of getting the document drafted, not because of an expiring tax deadline, but because local
I33667/30473/TJF/01201177.DOCXI 4
people had been clamoring to see the proposed changes,and the only way we knew of to get it to them
was to have the Draft SEIS approved as"complete,"which made the document available to the public.
See my answer above regarding the public nature of the draft SEIS. I think the emails above speak for
themselves. If BOWF had really wanted to share the status of those proposed changes with the public,
they had plenty of opportunities during the Wind Farm Advisory Committee meetings to do so. We
certainly asked them about the status of the project often enough.
The email asked Labella to "[p]lease review and let me know ASAP if there is anything substantive that
needs revision or clarification in the SETS prior to Wednesday evening's meeting" (during which the
SEIS was accepted by the Town Board) (emphasis added).On March 8,2016,LaBella emailed Pippen
advising him that LaBella would recommend acceptance of the draft SETS as"complete" despite
continuing reservations about the document: "Jim,I have reviewed the Draft SETS dated 3-7-16,and am
in agreement that the most critical changes to the Draft SEIS have been made in the latest set of
revisions.I have indicated in a memo to Frank Pavia that the document can be accepted as adequate for
public review.Although I am prepared to conclude that the document is complete for the purpose of
commencing public review,some of the issues identified during the review process remain a concern,
and I would expect that the project sponsor will address such issues as part of the Final SEIS before that
later document is accepted(emphasis added')."
Geotechnical soil borings are not a requirement of SEQRA,since it has no relevance to environmental
impact. It's an engineering requirement typically performed just prior to construction.The borings
happened to have been done during the previous round of EIS,so LaBella was once again requiring it
even though it is not part of SEQRA per se.Our compromise was to do the borings during the Draft EIS
phase,and provide them for the Final EIS.Another area of confusion involved whether the permanent
met tower required guy wires. It was the project's opinion that these issues were relatively minor,and
could be resolved during the Draft phase,while public comment was taking place,and didn't need to
delay further the public's ability to review the SEIS.
The SEAR DEIS Final Scoping Document adopted by Enfield as the Lead Agency states:"The DEIS will
include all elements required by 6NYCRR 617.9,including:...
"This section will evaluate and describe surface and subsurface soils and bedrock conditions within
the Project area....Constraints imposed by existing soils,geology and topographic conditions will be
evaluated. Limiting characteristics relating to soil texture,soil-bearing;capacity,depth to water table,
hydric and non-hydric soils should be identified and evaluated....The need for grounding or excavation
in areas of shallow bedrock and anticipated methods to remove or penetrate bedrock will be
described....etc."
It is hard to see how these items can be addressed without soil borings.
The Town Board should direct BOWF to revise the Draft SEIS now to address the deficiencies described
in the memo from LaBella to Pavia,and the additional concerns described in this letter.
See the statement above.
f 33667/30473/TJF/01201177.D000 5
Enactment of the Wind Law and the Need to Change the Law Again Inadequate Setbacks There can be
little dispute that setbacks provide a basic and proven form of mitigation of many of the adverse impacts
caused by wind turbines including noise,ice throw,and mechanical failure.The Town of Enfield initially
adopted its Wind Law in December,2007 which atthat time required setbacks of 1,250 feet or,1.5 times
the height of the turbine whichever is greater,from property lines,communication,and electrical lines,
transmission facilities such as substations,inhabitable structures, public roads,the Robert Tremain.State
Park and neighboring municipal boundaries.Although that law took many months to adopt,the Ithaca
Journal reported that BOWF contended that the law was hastily enacted and it threatened to take legal
action tor►ullify:the law.Lessthan a month later,a new majority of the Town Board began'theirterms
and voted to repeal the Wind Law.In November 2008,they enacted a new,vastly diluted version of the
Wind Law,a version which was obviously much more suitable to Black Oak.Itreduced the setbacks
considerably to structures and property lines of non participating'landowners
The 2007 law was repealed because it was wriften hastily,after the entire Town Board had been voted.
out of office.The outgoing members wanted to make the wind law-their last act of business,so they
rushed to complete it after the election,passing it in a closed session without public review or SEQRA
review.The setbacks in it were expressly made very large to prevent a wind project from being sited in
Enfield,since no parcel in the Town is 2500'.across,which would have been required by that particular
Town law.The State Attorney General then approached the Town of Enfield,said the law was passed
illegally,and needed to be done correctly.The new Town Board took it upon itself to write a more
carefully considered law,and tasked the Planning Board with the job.They took 9 months to craft the
existing law,with the express aim of protecting town residents while allowing a project to be built.The 4
project had no hand in writing that law;it was solely the product of the Planning Board.which
considered laws from around the U.S.and the world.
I find it interesting that BOWF always says that the State's Attorney General approached the town to
say the law was illegal whereas the January 9,2008 Enfield Town Board minutes indicate otherwise:
"John Rancich welcomed the new board members. He stated that the previous board had
passed a law,which may be illegal,pertinent to wind farms in Enfield. Supervisor Podufaski
[newly elected]is seeking legal counsel from the Attorney from the Town.[the newly
appointed Guy Krogh]and will proceed as counsel instructs."
The February 13,2008 resolution repealing..the law,then states.in its whereas clauses:
"WHEREAS,TowmCounsel,Guy.K Krogh,Esq.,has examined these.problems and
recommended that the Town of Enfield:{i)file objections to the recognition of these local laws
with the New York State Attorney General's'Office,and (2)consider the adoption of Local Law
#1 of 2008 to repeal the Wind Tower Local Law and Ethics Local Law:"
1 also find it interesting to review he historic Planning Board minutes regarding the wind energy law
deliberations. The minutes related to the repealed law are much more detailed and show a great deal
of thought and consideration whereas there is little or no discussion in the minutes of the Planning
Board about the new wind law between the time the law was repealed and the time a new law was
passed.
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In fact,as recently as February 2016 in the Madison County Town of Fenner,it was reported that a 113
foot long turbine blade detached from its hub and fell over 200 feet to the ground_I spoke with a man
who lives across the street fromthat turbine. He told me he personally measured how far the blade was
thrown as a result of that incident.He said it landed 323 feet from the turbine and then bounced
another 148 feetfor a total distance of 471 feet.This is a recent example of why Enfield's setbacks are
not adequate to protect its citizens.
Since Black Oak proposes turbines no closer than 1000'to a home,and town law is 532',it looks to me ;
that setbacks are in fact doing their jobs even in rare accidents like the one reported in Fenner.
Fenner seems to have many"rare"accidents. In the last few years,they have had a turbine fall over,
one catch fire and another throw a blade almost 500 feet. Measuring setbacks to residences
completely ignores the fact that this is a residential area where people utilize most of their property
for various activities such as hunting,hiking,picnic areas,corrals for animals,potential sites for homes
for children or retirement houses. We live in the country so we can enjoy the outdoors,not hunker
down in our homes to avoid being injured by wind turbines.
GE's policy recommends the following setbacks[i]f icing is likely at the wind turbine site: ...1.5 times
(Hub Height+rotor diameter)",to residences and public use areas.
Black Oak complies with this standard.
GE also recommends a setback of 1.1 times the total height of the turbine to remote property
boundaries not owned or controlled by the project sponsor.
This is not factual.See the attached GE setback document.It clearly states 1.1x Blade Length to a
property line,which is identical to Enfield law,and is the standard with which Black Oak complies.
This interpretation of the GE setbacks conveniently ignores footnote 4 which clearly assumes,in
designating this setback,that the turbines are located in remote areas where the land will not be used
by the landowners. I use all 46 acres of my property for recreational purposes. Many of my neighbors
do likewise and a number of them have specific plans to further develop areas of their property that
will be impacted by the turbine setbacks.
Monumentally Inadequate Noise Limits In addition to setbacks,enforceable noise limits are necessary
to address unforeseen noise impacts that arise during the operation of any wind farm.The Town's Local
Law establishes a noise limit of"60 decibels above ambient sound levels measured at the nearest Off
Site Residence."
The language here is widely recognized as a typo in the Town's law,which should have read "60 decibels
measured at the nearest Off-Site Residence."At any rate,our noise consultant concluded that noise from
our turbines would never exceed 46 dBA.The annual average nighttime sound level at non-participating
residences will not exceed 37 dBA.
As Ronald Reagan liked to say,"There they go again!"BOWF is once again only measuring impacts at
the residence. This completely ignores the impacts of noise on the whole of a resident's property.
Furthermore,my sound expert has determined that the nighttime ambient sound levels for our area
are much lower than 37 dBA and this represents a very large increase in the noise levels we will
experience at night. Finally,there is no enforcement mechanism provided when the Black C)ak
{33667/30473/TJF/01201177.D0CXI 7
projects fails to abide by these measurements(as so many wind farms do). At an absolute minimum,
the wind law noise limits should be amended on retroactive basis to conform to the noise limits that
Black Oak is proposing so the town residents have recourse to a nuisance suit when and if these noise
limits are exceeded.
My attorney provided the Town with strong legal precedent demonstrating that a municipality has every
right to enact legislation related to health and safety(police powers),and make such legislation apply
retroactively,as long as the owner has not already acquired "vested rights." In New York,a landowner
acquires"vested rights"when it has already undertaken"substantial construction and made substantial
expenditures prior to the effective date of the amendment_" Even if BOWF has already begun ordering
turbine infrastructure(there is absolutely no evidence indicating that it has);that would not be
considered a"substantial expenditure"if it can recoup its cost by reselling the equipment in the market.
Additionally,the concept of"substantial expenditures"is not even relevant unless the landowner has
also already undertaken "substantial construction.
We have expended$3.2 million,out of a total$40 million project cost. I consider this to be substantial
expenditure,and it includes a transformer costing$560,000,which was custom built and delivered
based on existing town approvals,and cannot be re-sold for anything like its purchase price.There is
substantial case law in NYS where gravel mines,for example, have been found to have vested rights even
before securing their permits,based on the substantial investment required to even obtain a permit in
the first place.Gravel mines, like wind farms,are very site specific,and require a great deal of work to
locate and go through extensive permitting work even before construction begins.
That's funny. The gravel mine case in NY that I found states:
"However,"[n]eitherthe issuance of a permit. . nor the landowner's substantial
improvements and expenditures,standing alone,will establish the right.The landowner's
actions relying on a valid permit must be so substantial that the municipal action results in
serious loss rendering the improvements essentially valueless"(Town of Orangetown,88 NY2d
at 47-48).Further,no vested rights will accrue to a landowner"jw]here substantial
construction has been commenced,but expenditures thereon are unsubstantial... [or]where
substantial'expenditures have been made but substantial construction has not commenced
(Matter of Putnam Armonk v Town of Southeast,52 AD2d 10,14[19761;see Matter of Berman
v Warshaysky,256 AD2d 334,335-336[1998])
As my attorney has said on numerous occasions,it is not enough to spend money. There must be
substantial construction as well. (See the first point for an idea of what substantial construction looks
like!)
Violation of SEQR Procedures Involving the Turbine Located in Newfield Although BOWF has not yet
committed to any actual location for placement of the two turbines that will be relocated(it has merely
identified possible combinations of locations),one of the potential sites is located in the Town of
Newfield.This has important ramifications under SEQR.First,there is no indication in the SETS that BOWF
has applied for any approval to construct any turbine in the Town of Newfield.Further,there is no
indication in the SEIS or in any resolution of the Town of Enfield as to which agency will conduct the
SEQR review for the turbine in the Town of Newfield or whether review will be coordinated. Because the
Newfield turbine is identified in the SEIS,it appears that BOWF intends to assess its impacts along with
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those caused bythe Enfield turbines,as part of Enfield's pending SEAR review.of the Project If true,
BOWF and Enfield have violated several of,SEQR's procedural requirements.The SEQR regulations
provide that In]o agency may undertake,fund or approve the action until it has complied with.the.
provisions of SEAR"(6 NYCRR§617.3(a)).The BOWF project is cl'earlya Type.I action for purposes of
SEQR(it is"deemed"aType 1 action under the Enfield Wind Law).Presumably,Newfield has
discretionary approval authority over construction of the turbine,either under its own wind law,or
under a typical site plan review law.That"discretionary approval"authority makes Newfield.an "i.nvolved
agency"for purposes of SEQR(defined as"an agency[state or local]that has jurisdiction by lawto fund;:
approve or directly undertake an action"(6 NYCRR§617.2(s)).
The Town of Newfield has been involved throughout the past five years of SEQRA.Now that we have
proposed a turbine in Newfield,it has approval jurisdiction over that turbine location,and is a
participant in the SEQRA process alongside Enfield.The two Town Attorneys have been working togei:her
to comply with SEQRA procedure throughout. If nothing else,the recently passed moratorium in
Newfield on wind facilities makes it clear they have been duly notified and are actively participating in
the process_
Lots of jargon here. The difference between an"interested"party and an"involved"party under the
SEQR rules is important. Suffice it to say that The Town of Newfield has rights to control its own
destiny with regard to the assessment of the environmental impacts of the portion of the Project in
Newfield.
Apart from the expansion in the capacity of the facility that was previously proposed,it is believed that
the changes to the configuration and location of the electrical substation will result in significantly more
"cut and fill"of land.
No,we moved the substation location within the same landowner's field to reduce the amount of cut
and fill,not increase it.The new site is flatter.Also it was moved because the landowner preferred the
new location.Reducing impact and improving landowner happiness seemed like adequate reasons.to
deem the move not worthy of larger review.
I am just confused by this answer. The substation moved from one,landowner's property-to another
landowner's property because BOWF had no right to purchase the first landowner's property and:he-
didn't want to sell.
The owner of the parcel's continued participation in the Project may also be unclear which might cause
further design changes.There is still uncertainty concerning the very basic issue of the heightof the
towers which is relevant to several different anticipated environmental impacts.For example,according
to LaBella's February 1,2016 comments on the January 2016 draft SETS(a version that was never made` "
public): "In the Acoustic Study Update(Appendix E)it is indicated that hub height of the proposed
turbines is 94 meters is this correct?(Based on our records,the hub heightof the former turbine
model in the FEIS/Findings statement was 96 meters or 315 feet.In June 2615,the use of the currently
proposed model turbines was approved,which involved an increase in hub heightof 8 feet,resulting in a.,
total hub height of 323 ft.or 98 meters.) Is the AcousticStudy accurate given this anomaly in hub height
(sic)."Similarly,in its February 8 comments,LaBella continued to question BOWF as to the height-of Its
towers in a comment on the issue of shadow flicker: "There remains confusion with regard-to the heights
of the turbine which has been indicated to be 94 m.... More explanation is needed of the heights in
f 33667/30473/TJF/01201177.D000 9
the following statement in 2.8.2.1.3: 'These changes are due to shifting the Project layout,changes in
turbine specifications'inci iding a net increase in overall structure height of 5 m(from 196 m to 201 m)
and increase in rotor diameter(from 100 m to 1,07:m),which affects the intersection of the sun;turbine
and receptor."'
This reflects confusion.on the part of the town's consultants.The height changes had nothing to do with
moving turbines in the iandscape;we were not proposing to do so at that point.The old turbines:were
on 96 m hubs,with 100 m rotors,for a total structure height of 475'.'The newer turbines,approved last .
summer,have 94m hubs;with 107:m rotors,,for a total height of 483'.The towers got shorter.:by 2'm,the.
blades got longer by 3.5 m{each blade got 15m longer, making the rotor size,:a.k:a the diameter of the.
circle,7 m larger,3.5+3.5).This has no impact on noise-the two turbines are designed to have exactly
the same noise output.It is also imperceptible visually.
Any confusion created here rests with BOWF's own documents. Their letter of June 24,2015 to the
town's lawyer,Frank Pavia,clearly states that the change from the GE 1.7MW-100 turbine to the GE
2.3MW-107 turbines will increaseln height by 8 feet. As for any noise impacts,the noise modeling for
the newer turbines dearly shows an increase In noise compared to the modeling using the older
turbines. In fact,the maps show that the lands exposed to 55 dBA or more grew by 195%;50 dBA or
more,by 81%.
With respect to the ownership of the Project,by letter dated September 17,2015,Black Oak Wind Farm,
LLC requested a transfer of Black Oak's Payment-In-Lieu of Taxes("PILOT")and tax abatement to a"new
owner"called Onyx Black Oak Wind,LLC,of 126 E.56th St.,New York, NY.Nothing in the SETS indicates a
change in ownership.According to a September 17,2015 email from Marguerite Wells of Black Oak
Wind Farm,LLC to Heather McDaniel of Tompkins County Area Development concerning the status of
local investors:"The investors will still be members of the Black Oak LLC,which doesn't go away.only
(sic)the assets of the company are being sold.They'll get their eventual payments as distributions
according to their shares."The matter was scheduled to be considered by the Tompkins County IDA at its
September 2015 meeting.On September 19, Black Oak requested that the"revision"be put off until the
Board's October meeting: "Afterconferring a bit further with my board and.Onyx,I think it would be
better to put our PILOT revision off until the October meeting if possible,as we have been holding off
making the info public(even to our investors)until after the deal closes.onthe 29th.1 had forgotten how
public the IDA meeting agenda would be. It's no matter that we're listed on'the agenda on the website,if
it stays that's ok,we can still forego actual public discussion of the details until after deal closure.Is that
workable?"The matter was not.heard at the.:October 2015 meeting.It was put off.until November and
then December and apparently it has still not been returned to the agenda
The sole owner of.the project remains BlackOak.Wind Farm, LLC.How we end up financing the project is
not:a matter for SEQRA.
So here's some more confusion of BOWF's own.making. BOWF continually touts this project as .
community owned but BOWF'.s letter to the.IDA quite clearly states that the assets are being sold to
Onyx Black Oak Wind.LLC,not remaining with Black Oak Wind Farm,LLC.All that remains with Black.
Oak Wind Farm,LLC is the right to receive the sales price over time. So much for community owned..
And while the financing is not a,SEQR matter per se,the town's windlaw,among other things,requires
the Town Board's approval to transfer ownership flf the project.
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Noise Impacts I will submit separate suite of comments that address noise impacts as will my noise
expert, Les Blomberg.In short, it is clear that BOWF's SEIS does not adequately assess,avoid and/or
mitigate the anticipated noise impacts from the modification of the Project. It contains no discussion of
the impacts from low frequency noise and/or infrasound.Similarly,there is no adequate discussion as to
mitigation of noise related impacts.Finally,there is no enforceable mechanism including realistic decibel
limits to address actual noise impacts that arise during the operation of the wind farm_
There is extensive discussion of sound in the Draft and Final EIS from the original layout,which did not
appreciably change in the SDEIS.Since there is a total lack of peer-reviewed science on noise-related
impacts of wind farms, beyond annoyance of some residents,we do not discuss it detail. Many court
cases have been brought suing for damages caused by"wind turbine syndrome"and nearly all get
thrown out due to lack of credible evidence--see hftp://www.energyandpolicy.org/wind-health-
impactsdismissed-in-court. Infrasound is a natural phenomenon which is present at high levels in windy
areas,since wind in trees is one of the largest sources of infrasound.
The Draft EIS lacks any discussion of noise impacts at all-audible or infrasound. The Draft EIS does
not tell nearby home owners if they will be able to escape the turbine noise by going into their homes,
or if the noise will follow them into their homes and even into their beds(it will). The Draft EIS does
not mention sleep interference. The only impact mentioned is whether turbine noise in the 31.5 and
63 Hz frequency range is annoying,and that was in an appendix. There is no excuse for the lack of
analysis of noise impacts. There are plenty of peer reviewed papers on audible noise and its effects.
Shadow Flicker LaBella's February 8 comments to BOWF direct it to "[i]nclude text and a table
summarizing the information in Section 5 of the Shadow Flicker Analysis regarding the general timing
(time of year,time of day)of the shadow flicker effects for each alternative combination."The comments
provide an example for BOWF to use but no such language is contained in the March 2016 draft SEIS.
With respect to proposed "mitigation"of shadow flicker, LaBella states "[g]iven that some new
residences will now experience shadow flicker hours approaching the 30 hour threshold (26 and 27
hours),it is recommended that the Mitigation Section refer to the Complaint Resolution Procedure
should unanticipated shadow flicker effects arise"(LaBella February 8,2016 comments, No.72).
The original idea of the Wind Advisory Committee was to help design a complaint resolution process to
help deal with individual problems as they come up.Since there is plenty of time before Black Oak
begins operation,it seems like a plan could be developed that meets people's needs.
The"original idea"of the Wind Advisory Committee was to review and advise the Town Board and
citizens on wind issues. Enforceability of the Wind Law and related mitigation measures is part of
that. We look forward to hearing what types of compromises BOWF is willing to consider.
Visual. Impacts The modification of the Project involves new locations for two towers and the substation;
and construction of an intrusive MET tower,as well as a significant amount of clearing and grubbing of
mature trees and land for the installation of electrical lines.Although notindicated anywhere in the SEIS
narrative,it also appears clear that BOWF is moving the location of turbine 6(that is evident from
reviewing the very last page of Exhibit E of the SEIS,entitled "Project Layout Comparison"which shows 7
that the footprint of turbine 6 has slightly changed).The movement of turbine 6 is not even mentioned
in the Draft SEIS;the impact of such movement has clearly not been assessed.
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Turbine 6 was moved 40',which is imperceptible from an impacts standpoint,and was only done to
better comply with setbacks to Ms.Lemke's own property line.
As it turns out,I had a professional review the BOWF maps and,in fact,ALL of the turbines are
moving. BOWF's narrative in the Draft SEIS gives no indication of that.
Although I know where my home is located, I cannot tell from the Figure how many turbines I will
actually be able to see from my home:INowhere in the report is there a narrative I can refer to in order
to determine how many turbines]will see. In addition,there is no discussion as to the relationship
between the number of turbines that can be seen and the significance of the visual impacts I will suffer.
LaBella agrees.In its February 8,2016 comments, LaBella tells BOWF's consultant that the Draft SETS
"needs to include more information than just the percentages of the area with views of the turbines"
(LaBella Comments,No.61,pg.1).Finally;there are very few photosimulations generally concerning the
new proposed facilities and there are none depicting the view from my home or property,even though
my home is eligible for inclusion on the Register of Historic Places and therefore is a resource of
significant local importance.
Any home over 50 years old is eligible for the.National Register of Historic Places. It is impractical and
without precedent to provide photo simulations from every possible home and viewpoint in a project
area.
What is the point of photo simulations if they-don't convey in a realistic manner what the view shed
will look like for those most impacted by.the project? My property and that of Ron Riddle on Harvey
Hill Road,which is also a NRHP property,vAn apparently have the worst view sheds. Despite the fact
that Ron's house is now even more,dearlyampacted than before(where he could still see 7 turbines),
there is no discussion whatsoever.on that:impact to his home.
Impacts to the Future Use of My Property and Valuation My property is notvacant,it is inhabited.
Moreover, I use my property and want want to maintain my right to further develop it with
structures.
Black Oak has done nothing to impair Ms.Lemke's use of her property.The Town Board,by accepting the
original EIS has indicated its agreement with us that the wind farm as proposed would pose no
significant health or safety issues that would impinge on her property rights.
The fad that GE suggests setbacks of 994 feet and another manufacturer's safety regulations provide
for 1,300 feet indicate to me that it is not safe to use those parts of my property that are within those
zones. That amountsto about half my property. Furthermore,it is highly unlikely that the town
would permit any structures to be built within 994 feet of the turbine given its setback laws which
further impairs my property.
But most likely,I will never be able to develop over half of my land which is located within the 994 foot
recommended setback.it is like a restrictive covenant or easement which l will never be compensated
for.I have been told that once the wind farm is approved, I will most likely never be given approval to
build any structure on the portion of my land'which is located within that recommended protective zone.
BOWF should be required to compensate me for what is essentially a "taking"of my land without
compensation.It should also compensate me for my proximity to this proposed facility,and the impact it
will surely have on my property values.
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In a town with no zoning,a neighboring property can do anything at all which impinges on a neighbor's
property and could be considered a "taking."For example,we could start a motocross track,a hog farm,
strip club,or scrapyard,and it would surely impact the neighbor's property value and enjoyment,but
there is no"taking"i-n those cases.Those are all existing enterprises in Enfield that do, in the eyes of
their neighbors, negatively impact their property values. No compensation has ever been required of
them.Why target our business when no one else is?
I'm glad to see that BOWF finally recognizes the type of"good neighbor"it will be. There is,however,
at least one big difference between a strip club and BOWF. BOWFs pole dance isn't hidden from sight,
but is nearly 500 feet in the air. Size matters.
Furthermore,residents always have the ability to challenge a neighbor that installs a nuisance next .
door,but the ridiculous wind law we have in place will make bringing any nuisance suit more difficult.
Currently,there is no required mitigation in the SEIS for the devaluation of my property.Other
communities,such as the Town of Hammond,New York,require mandatory guarantees of property
values as part of any wind farm approval.I have seen a copy of the guarantee agreement in Hammond
which is a condition of any wind permit issued by the Town.21 Section 2.6.1.2 of the Draft SEIS
acknowledges that future development on certain properties such as mine will be curtailed due to the
proximity of turbines from the Project to the property lines.That impact must be mitigated in the SEIS.
And there are no wind turbines in Hammond,NY,either. No wind company can afford to pay people the
theoretical value difference in their property value,especially when there is no statistically significant
expectation of devaluation in the first place. No projects get built in towns with un-financeable
restrictions in place.See the Realtor.org list of studies that demonstrate with near unanimity that wind
farms do not devalue properties.Only a couple of studies have shown a negative impact over the years,.,
while the vast majority of these studies do not.
It defies common sense to believe that these turbines won't have a negative impact on our property
values. Look at how controversial these projects are all around the world. I can see my realtor's
banner now: Nice house with great views(of noisy turbines)! No one,given the choice,would buy a
property with turbines nearby. Furthermore,most property value studies are flawed. They look at
homes in a 5 mile radius as opposed to homes within 1,000-2,000 feet from a turbine,some are
limited to urban areas,many lack reasonable controls on the data,or mostly look only at the visual
impacts and ignore all the health and safety issues.
Impacts on Area Roads.Roads in the area of the Project area are already crumbling, reportedly because
the Town has delayed maintenance for over nine years in anticipation of the Project.Those delays were
apparently suggested or requested by John Rancich,the Project's initial sponsor,who indicated at the
January 3,2007 Town Planning meeting that the Project would degrade the condition of the road so it
was better to wait.The Town's Highway Supervisor has repeatedly expressed concerns that heavy truck
traffic during construction of the Project will permanently damage the road'bed. No"Road Use
Agreement"has been made public yet,and the Highway Supervisor has indicated that he has yet to see
any draft.The Draft SEIS should identify impacts on roads during construction and provide clear,specific
and enforceable standards for mitigating impacts to such roads, not just a general and unenforceable
promise that standards will be developed and adhered to.The SEIS needs to describe how BOWF will
shore up the roads before construction,ensure safety during construction,and repair damage followin
{33667/30473fr)F/01201177.DOCXI 13
construction.The Highway Supervisor has acknowledged that he has not been consulted by the Town
Board in over a year concerning this important issue.
That is also not factual.The Highway Supervisor has seen several drafts of the proposed road use
agreements,and has attended meetings with the County on the subject;it has been under discussion for
a couple of years. Furthermore,construction projects are only required to return roads to pre-
construction condition, but Black Oak has all along proposed to restore the roads to NEW condition after
construction.We will be entirely rebuilding Black Oak and Connecticut Hill roads.This is well in excess of
requirements.The SEIS is not the venue to discuss-the details of the road use agreement,except to
provide a draft,which we did.The Agreement itself is the place to discuss those details,and we will do
so. In fact,this was most recently discussed at the last town board meeting on April 13th.
The purpose of an EIS,including a draft SETS,is to assess the anticipated environmental impacts of an
action and to ensure that such impacts are avoided or mitigated to the extent practicable. A road use
agreement is just one example of necessary mitigation that is not adequately discussed in the Draft
SETS. But the secrecy continues. So far,the residents have not been provided with drafts of this
agreement to review other than one copyset out briefly at the beginning of the last Town Board
meeting. I tried to look at it when the agreement came up at the meeting but by then it had been
removed. Once again,I have had to submit a FOIL request.to get it.
As for the Highway Supervisor's review,I have spoken with him at length on a number of occasions
and in each of those calls he maintained that he has,not seen drafts(other than the initial draft
included in the DEIS which was nothing more than an agreement from another town with the name
blacked out). I spoke with him shortly before submitting my comments and he had still not seen the
drafts that were circulating. 1 do believe he may have been provided a copy of the most recent
document between the time 1 spoke with him and the date of this letter. But,at the last Board
meeting,Dan Walker of our Planning Board who has been handling this matter,said he hadn't seen
this most recent draft which appears to be more of a road use policy document than a contract.
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