Front Generator Wind Turbine

The developer of a proposed 29-turbine wind farm in Cattaraugus County is re-evaluating the project after a state appellate court rejected its appeal of the Town of Allegany’s refusal to extend a permit for the $160 million development.

“We’re still evaluating what we want to do,” said Kevin Sheen, a spokesman for EverPower Wind Holdings, which proposed building the wind farm in a remote area of the town spanning more than 9,100 acres. “It’s unlikely we’ll proceed with the project in its current form.”

Sheen said the company still could revise its plan for the wind farm on the current site.

“We will consider our options in light of the ruling, but it is unlikely we will pursue this project in its current form, but may look to repackage the site for application through the new state Article X process,” said Chris Shears, chief development officer.

EverPower had appealed the Town of Allegany Planning Board’s denial in October 2012 of a second one-year extension for a special-use permit for a wind farm on the hills above Chipmonk Road. The Pittsburgh-based wind energy project developer initially had won approval for a site plan and a one-year permit in July 2011 to build the project, but it was delayed, partly because of a lawsuit filed by a citizens group that opposed the development. The lawsuit made it difficult for EverPower to obtain financing.

That lawsuit was dropped during 2012, but by then, the project was further delayed over concerns about whether the federal wind energy tax credits would be extended by Congress before they were set to expire at the end of that year.

The Planning Board denied EverPower’s request for an extension of its special-use permit in October 2012 after the developer indicated that it planned to use a different model of  micro wind  turbine on the project. The larger turbines could have put the project in violation of the town’s noise setback requirements.

In response, EverPower filed a lawsuit, which initially was dismissed in February 2013 by State Supreme Court Justice Michael Nenno, who said the company’s conduct was willfully obstinate. EverPower then appealed the dismissal.

The appellate court ruled that the change in the turbine meant the circumstances under which the special-use permit initially was issued had changed and that the refusal to grant an extension was “not arbitrary or capricious.”