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Attorneys argue dismissal of Italy windfarm lawsuit  

Credit:  By Gwen Chamberlain, The Chronicle-Express, www.chronicle-express.com 25 June 2010 ~~

Penn Yan, N.Y. – Attorneys for the Town of Italy and a grassroots group of Italy residents told Yates County Superior Court Judge John Ark June 17 that a lawsuit filed by Ecogen LLC against the Town of Italy should be dismissed.
Attorneys for Ecogen argued the company that has been working to develop a utility scale wind farm in the town should not be prevented from moving ahead with the project.

Last fall, after several months of back and forth discussions, public hearings and lawsuits, the Italy Town Board denied an application for special use permit to build the wind farm. Board members said the amenities and benefits that were offered by Ecogen did not outweigh the potential damages that would result from the construction of the wind farm.

After the town made that decision, Ecogen filed the lawsuit in an effort to make Italy to accept its application.
During the arguments related to the town’s motion to dismiss, Gary Abraham, the attorney for Finger Lakes Preservation Association (FLPA), a group of town residents, told the judge, “Ecogen convinced them (the town board) through a series of lawsuits that they should be in favor (of a wind farm).

He later told the judge, “They (Ecogen) are asking you to do something no one’s ever done: give them vested rights.”
In his argument for the motion to dismiss, Edward F. Premo, II, attorney for the town, told the judge, “The decision as to whether to allow wind farms, under New York State Law, is up to the town.” He said the lawsuit is an attempt to have a court decision essentially order the town to permit the development.

Ecogen’s attorney, Laurie Bloom of Nixon Peobody’s Buffalo office, responded that the town changed the rules along the way, first writing regulations that created a wind development incentive zone, and then denying the permit application. Later she said, “Ultimately, I believe they kept changing the laws. They kept moving the goalpost, hoping we would go away.”

Several interested parties filled seats behind the town attorneys, listening as the lawyers argued the details of the motion to strike certain statements or claims and another to dismiss the suit altogether.
Following more than three hours of arguments related to the 3,000 pages of exhibits and quotes connected to the lawsuit, none of the attorneys could estimate how long Ark would take to make a determination on the motions.

Megan Dorritie, one of the town’s attorney’s from the Rochester firm of Harter, Secrest & Emery, presented the argument to strike what she called “irrelevant, scurrilous and false claims” made by the company, including allegations of events relating to:
• a separate wind energy facility developer
• previous zoning laws
• a prior, withdrawn Ecogen application
• action taking place in a different municipality
• political activity after the determination challenged by Ecogen.

She said Ecogen manipulated transcripts from town board meetings to support the company’s “paranoid theory of political conspiracy.”

Bloom responded that Italy’s motion to strike, “is a thinly veiled attempt to take out what they don’t like.”
She said there is a long history – more than eight years – of court actions regarding the proposed development.

“They want to whitewash all that,” she said, later asserting that the court cannot make a reasoned decision without the information.

One of the key arguments revolved around whether Ecogen has made a substantial investment to prove the company has a vested interest in the proposed development. Bloom said the company has already spent $13 million on the project.

“These are not unsupported allegations,” she said.

During the exchanges by the attorneys, Ark asked questions about the jurisdiction of Steuben County Industrial Development Agency (SCIDA), and asked if the company plans to seek a payment in lieu of taxes agreement with Yates County through the Finger Lakes Economic Development Center (FLEDC). He asked specifically, “Why does the county have to subsidize the company for the use of wind?

After Bloom explained that such a request would be in the context of the purpose of an industrial development agency, the judge observed that if tax incentives are to “benefit Ecogen, the town doesn’t get anything.”
The judge asked Ecogen’s attorneys to send him a summary of what measures the company took in its application for a special use permit, which was later withdrawn by the company.

Source:  By Gwen Chamberlain, The Chronicle-Express, www.chronicle-express.com 25 June 2010

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

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