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Orangeville: Clear Skies appeals to state’s highest court

ORANGEVILLE – Clear Skies Over Orangeville has taken its appeal to the state’s highest court.

The group opposing the Stony Hill Wind Farm filed an appeal request on Tuesday. It continues to argue conflicts of interest in the Town Board’s approval of the 2009 zoning ordinances.

“Invenergy paid councilmen (Hans Boxler Jr. and Andrew Flint’s) family farms with one hand, and with the other asked each to adopt a new zoning ordinance friendly to Invenergy’s plans for a wind farm,” according to the CSOO filing.

The motion cites the Attorney General’s Code of Conduct Agreement. The latter prohibits wind companies from offering municipal representatives, their relatives or third parties any benefit under circumstances in which could be reasonably inferred it would influence their official actions.

Boxler and Flint both voted to approve the ordinances.

“When the public perception of an appearance of conflict is reasonable under the circumstances, the courts have said officials must recuse themselves from the matter,” said CSOO attorney Gary Abraham.

If the Court of Appeals decides to hear the case, it would be the latest chapter in the lawsuit originally filed in January 2010.

State Supreme Court Judge Patrick NeMoyer dismissed the lawsuit in April of that year. He rejected the CSOO arguments almost entirely, and found no conflicts of interest or ethics violations on the part of any Town Board members.

He ruled CSOO had not demonstrated prohibited, direct monetary or material interest on the part of any Town Board members who voted on the amendments, including Boxler and Flint.

Two previous appeals were also denied, most recently in June.

Town Attorney David DiMatteo said the town stands behind the arguments it made before NeMoyer and the five-judge appellate division.

“There are no new arguments (in the appeal),” he said. “The same arguments have been rejected not only by State Supreme Court Judge Patrick NeMoyer, but also the five judges who sit over him. They all believe the town exercised appropriate authority and restraint.

“We look forward to clearing this hurdle to put this behind us,” he continued. “It looks like an act of desperation.”

Abraham said the appeal decisions – minimal in length – rested on the lower courts and didn’t actually analyze the arguments.

“The argument we’re making is there’s a conflict,” he said. “And just like with the U.S. Supreme Court the ones that are more likely to be accepted are the ones that clarify those conflicts. We’re asking the Court of Appeals to resolve the issues among the lower courts about conflicts of interest, and whether (the Town Board) can postpone their environmental review.”

The Court of Appeals may respond as soon as July 25, which could then determine whether it will accept the appeal.