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Decided on January 5, 2007
Supreme Court, Monroe County

06/04099
Appearances: Culley, Marks, Tanenbaum & Pezzulo, LLP Glenn E. Pezzulo, Esq., of counsel Attorneys for Petitioners 36 West Main Street, Suite 500 Rochester, NY 14614 Harris Beach PLLC Joseph D. Piccioti, Esq., of counsel Attorneys for Respondents 99 Garnsey Road Pittsford, NY 14534 Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC David C. Brennan, Esq. Attorneys for Intervenor Ecogen, LLC Executive Woods, Five Palisades Drive Albany, NY 12205 Harold Galloway, J.
The petition seeking, inter alia, to annul respondent Steuben County Industrial [*2]Development Agency's Findings Statement, dated December 8, 2005, which approved a Final Generic Environmental Impact Statement concerning the Ecogen, LLC Wind Farm Project proposed to be built in the Towns of Prattsburgh and Italy, is dismissed; and intervenor Ecogen, LLC's motion to strike certain affidavits is denied as moot.
Respondent Steuben County Industrial Development Agency ("SCIDA") is the appropriate lead agency for purposes of the State Environmental Quality Review Act ("SEQRA"), as it is "an involved agency principally responsible for the undertaking, funding or approving" of intervenor Ecogen, LLC's wind farm project. See 6 NYCRR 617.2(u) (emphasis added); see Matter of Village of Pelham v City of Mount Vernon Indus. Dev. Agency, 302 AD2d 399, 400. The fact that the Town of Italy has imposed a moratorium on the project and may enact zoning regulations impacting it in the future does not render it the agency with the principal responsibility for carrying out the project. See Matter of River Center, LLC v Dormitory Auth. of the State of NY, 275 AD2d 683; Matter of King v County of Monroe, 255 AD2d 1003.
Petitioners assert that SCIDA improperly segmented its review of the Ecogen wind farm project from a proposed wind farm project, called Wind Farm Prattsburgh, that was slated to be built in the same general location. Under SEQRA, it is required "that reasonably related long-term, short-term and cumulative effects, including other simultaneous or subsequent actions included in any long-range plan that are likely to be taken as a result thereof, be considered". Matter of Sun Co. v City of Syracuse Indus. Dev. Agency, 209 AD2d 34, 47; see Matter of Village of Westbury v Department of Transp. of the State of NY, 75 NY2d 62, 68 (1989). "Segmentation, which is dividing the environmental review of an action in such a manner that the various stages are addressed as though they were independent, unrelated activities, needing individual determinations of significance * * * is contrary to the intent of SEQRA * * *. The prohibition against segmentation guards against two related evils: the first occurs when a project which would have a significant effect on the environment is split into two or more smaller projects, with the result that each falls below the threshold requiring review * * *; the second * * * occurs when a project developer wrongly excludes certain activities from the definition of his project for the purpose of keeping to a minimum its environmentally harmful consequence, thereby making it more palatable to the reviewing agency and community". Matter of Schultz v Jorling, 164 AD2d 252, 255-256 (citations omitted). In this case, Ecogen's project and the Wind Farm Prattsburgh project " are independent of each other and are not part of an integrated or cumulative development plan'". Matter of Settco, LLC v New York State Urban Dev. Corp., 305 AD2d 1026, 1027, quoting Matter of Forman v Trustees of State Univ. of NY, 303 AD2d 1029, 1020; cf. Matter of Sun Co., 209 AD2d at 47. A cumulative analysis of the two projects was therefore not required. See Matter of Settco, 305 AD2d at 1027. "Distinguishing between permissible segmentation, which may be necessitated by the exigencies of a project's review, and impermissible segmentation, which distorts the approval process, can be difficult * * *. Permissible segmentation requires related actions to be identified and discussed to the fullest extent possible' * * *. Where, however, a circumstance arises when a phase or activity of a project is not a current undertaking but one that will be carried out, if at all, in the future, detailed analysis is often impossible * * *. In such an instance, the problem of ensuring appropriate review may be redressed with a generic EIS * * *. Matter of Schulz, 164 AD2d at 256.
In this case, Ecogen explained that no significant work had proceeded with planning or [*3]environmental review on the Wind Farm Prattsburgh Project, and that its lead agency withdrew from it in October of 2005. Further, although the Ecogen Project entails building 53 wind turbines, a total of 99 sites were investigated over a significantly greater area than contemplated by the Ecogen project, so as to consider siting criteria for the Ecogen Project as well as any future project in the same general location. The potential for another project was not hidden to deceive SCIDA or the public; rather, consistent with one of the objectives of a generic EIS, "the findings set forth specific conditions or criteria under which future actions will be undertaken or approved". 6 NYCRR 617.10(c). Moreover, the findings issued by SCIDA contemplated that further SEQRA compliance measures would be considered if appropriate once the final sites for the wind turbines were chosen.
Respondent demonstrated that it properly followed the SEQRA process in providing for an extensive public comment period on the draft GEIS. "Where an agency has followed the procedures required by SEQRA, a court's review of the substance of the agency's determination is limited. The question is whether the agency identified the relevant areas of environmental concern, took a hard look' at them, and made a reasoned elaboration' of the basis for its determination'". Eadie v Town Bd. of the Town of N. Greenbush, 7NY3d 306, quoting Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417. The fact that the final sites for the wind turbines had not been selected does not render SCIDA's findings statement arbitrary or capricious, as "[t]he document in question here is a generic environmental impact statement" and "[t]he regulations provide that [g]eneric EISs may be broader, and more general than site or project specific EISs' (6 NYCRR 617.10[a])". Id. See Matter of Rusciano & Son Corp. v Kiernan, 300 AD2d 590.
The administrative record demonstrates that SCIDA did take the requisite "hard look" at areas of environmental concern and made a reasoned elaboration of the bases for its determinations. In fact, petitioners do not argue that SCIDA failed to analyze any particular environmental concern, but rather, urge that the studies upon which SCIDA relied were inadequate or that SCIDA improperly interpreted the results of the studies; petitioners submit a host of expert affidavits detailing various alleged inadequacies and misinterpretations of the studies and other data relied upon by SCIDA. However, "it is clear that scientific unanimity need not be achieved and the FGEIS is not required to make an exhaustive analysis of every possible environmental impact * * *. An agency has considerable latitude in evaluating the effects of its actions and a court may not substitute its judgment for that of the agency." Matter of Argyle Conservation League v Town of Argyle, 223 AD2d 796, 797.
Each area of environmental concern was addressed by SCIDA's findings, including water supply, mortality effects on birds and bats, noise, ice throw, property values, and viewshed. Ecogen funded studies by reputable firms on the migration patterns of birds and bats in the area, and on noise and ice throw, and SCIDA considered various other source material on those and the other issues. The agency provided for various mitigation measures as a result of its findings, including imposing 1000- or 1375-foot setback requirements from permanent residences (depending on whether the residence was located in a "windy" or "sheltered" location) and an 850-foot setback requirement from non-permanent residences, and a "sliding scale" of setbacks that decreased in size with the increase in acreage for landowners whose properties had not yet been developed, to protect future development on those parcels. The lowest of the minimum [*4]setback requirements is 489 feet; however, that is for an undeveloped parcel of 14 acres or more. These mandatory setbacks were imposed based on the studies of noise and ice throw, and the distinctions made based on the permanent or non-permanent character of the residences, and the sizes of the undeveloped parcels, although not agreed with by petitioners, have a rational basis. Additionally, as to ice throw, the turbines' design included five fail safe systems that could either detect ice buildup or sense equipment malfunction resulting from ice buildup, which would temporarily cause the turbines to shut down if there were significant ice buildup and/or if the equipment were not functioning properly. Based on Ecogen's bird and bat studies, the area was found to be moderate for bird migration, and mitigation measures were taken to lessen mortality rates. Further, property value reports indicated that property values did not decline due to nearby wind farms, and shadow flicker was found to affect most properties for less than 25 hours per year. Although petitioners may take issue with the studies and conclusions, the proper standard of review prohibits annulling SCIDA's Findings Statement based on scientific disagreement or differences in judgment.
Now, therefore, upon due consideration, it is hereby
ADJUDGED that the petition is dismissed; and it is further
ADJUDGED that the motion of intervenor Ecogen, LLC to strike affidavits is moot.
DATED: January 5, 2007___________________________________
Rochester, New YorkHAROLD L. GALLOWAY, J.S.C.

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