pb ver. answer

8/8/2019 PB Ver. Answer

http://slidepdf.com/reader/full/pb-ver-answer 1/12

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF JEFFERSON

WIND POWER ETHICS GROUP,

Petitioner-Plaintiff,

- against -

PLANNING BOARD OF THE

TOWN OF CAPE VINCENT, and

RICHARD EDSALL, TOM RIENBECK,

GEORGE M INGLE, ANDREW BINSLEY, andKAR EN B OUR CY, in their capacities as

planning board members,

Respondents-Defendants, and

ST. LAWRENC E WINDPOW ER, LLC,

Respondent-Defendant.

VERIFIED ANSWER

Index No. 10-2882

RJI No. 22-10-0990

Respondent Planning Board of the T own of Cape Vincent, by its attorneys, Whiteman

Osterman & Hanna LLP, for its Verified Answer herein states as follows:

1. Respon dent lacks know ledge or informa tion sufficient to form a belief as to the

truth of the allegations set forth in Paragraph 1 of the V erified Petition.

2. Respon dent den ies the allegations set forth in Paragraph 2, 3, 4, 5, 6 and 7 of the

Verified Petition.


truth of the allegations set forth in Paragraphs 8 an d 9 of the Ve rified Petition.



- 2

4. Respon dent adm its the allegations set forth in Paragraph 10 of the Verified

Petition.


Petition, except that Respondent denies that Planning Board member George Mingle is a current

planning Board member.

6. Respon dent adm its the allegations set forth in Paragraphs 12, 13, 14, 15, 16 and

17 of the V erified Petition.

7. Respon dent denies the allegations set forth in Paragraph 18 of the Verified

Petition.


Petition insofar as Respondent adopted a SEQRA findings statement on September 15, 2010 in

accordance w ith 6 N.Y.C.R.R. § 617.11 and denies the remainde r of the allegations set forth in

Paragraph 19 of the Ve rified Petition.


Petition.

10. W ith respect to the allegations set forth in Paragraph 21 of the V erified Petition,

Respon dent respectfully refers the Court to the written stateme nt of SEQR A findings for

determination of the content, meaning and effect thereof and Respondent otherwise denies any

allegations that are inconsistent therewith.

11. Respon dent lacks know ledge or information sufficient to form a belief as to the

truth of the allegations set forth in Paragraphs 2 2, 23, 24, 25, and 26 of the V erified Petition.



- 3


truth of the allegations set forth in Paragraph 27 of the Verified Petition, insofar as the meaning

of the term "industrial" is undefined.


truth of the allegations set forth in Paragraph 28 of the Verified Petition.


Petition.


Respondent respectfully refers the Court to the Joint Comprehensive Plan for determination of

the content, mean ing and effect thereof and otherw ise denies any allegations that are incon sistent

therewith.


Petition.


Respondent respectfully refers the Court to the Town of Cape Vincent Zoning Code for

determination of the content, meaning and effect thereof and otherwise denies any allegations

that are incon sistent therewith.


Petition insofar as the location of the proposed project is described and Respond ent denies the

remain der of the allegations set forth in Paragraph 33 of the V erified Petition.


truth of the allegations set forth in Paragraph 34 of the Verified Petition.



- 4


Petition.


Petition insofar as SLW propo sed to make its transmission line available for co-location of

others, possibly BP and Respon dent denies the remaind er of the allegations set forth in

Paragraph 36 o f the Verified Petition.


Petition insofar as WPEG submitted com ments to the Planning Board in 2007andRespondent

respectfully refers the Court to the written com men ts for determination of the content, meaning

and effect thereof and otherw ise denies any allegations that are inconsistent therewith.


Petition insofar as the Tovvns o f Clayton and O rleans have previously considered a wind project

proposal by Atlantic Wind, LLC. Respondent lacks knowledge or information sufficient to form

a belief as to the remainde r of the allegations set forth in Paragraph 38 of the Ve rified Petition.


Petition.


Petition.


Petition insofar as SLW prepared and submitted an SDEIS to the Planning Bo ard in January

2009 and Respondent respectfully refers the Court to the SDEIS for determination of the

content, mean ing and effect thereof and otherwise den ies any allegations that are inconsistent

therewith.



6 -

the content, mean ing and effect thereof and otherwise den ies any allegations that are inconsistent

therewith .

35. Responden t admits the allegations set forth in Paragraph 5 3 of the V erified

Petition insofar as the Planning Bo ard received written comments from a Tow n of L yme

Planning Board mem ber in August 2010 and Respondent denies the remainder of the allegations

set forth in Paragraph 53 of the Verified Petition.

36. W ith respect to allegations set forth in Paragraph 54 of the V erified Petition,

Respondent respectfully refers the Court to the written comments referenced for determination of

the content, mean ing and effect thereof and otherw ise denies any allegations that are incon sistent

therewith.


Petition.


Respondent respectfully refers the Court to the September 8, 2010 Planning Board meeting

minutes for determination of the content, meaning and effect thereof and otherwise denies any



Petition insofar as the Planning Board adopted a statement of SEQRA findings in accordance

with 6 NYCRR § 617.11 on September 15, 2010 and Respondent denies the remainder of the

allegations set forth in Paragraph 57 of the Ve rified Petition.

40. In response to Paragraph 58 o f the Verified Petition, Respond ent repeats and re-

alleges the prior paragraphs a s if fully set forth herein.



- 7 _


Petition.

42. W ith respect to the allegations set forth in Paragraphs 60, 61 and 6 2 of the

Verified Petition, Responden t respectfully refers the Court to the statutes and regulations

referenced therein for determination of their content, meaning and effect and otherwise denies

any allegations that are incon sistent therewith.

43. Respon dent denies the allegations set forth in Paragraphs 63, 64 and 65 of the

Verified Petition.

44. In response to Paragraph 66 o f the Verified Petition, Respon dent repeats and re-


45. W ith respect to the allegations set forth in Paragraphs 67, 68, 69 and 70 of the

Verified Petition, Responden t respectfully refers the Court to the regulations referenced therein

for determination of their content, mean ing and effect and otherwise den ies any allegations that

are inconsistent therewith.

46. Respon dent adm its the allegations set forth in Paragraphs 71 and 72 of the

Verified Petition.

47. Respon dent denies the allegations set forth in Paragraphs 73 and 74 of the

Verified Petition.


Petition.

49. With respect to the allegations set forth in Paragraph 76 of the V erified Petition,

Respon dent respectfully refers the Court to the regulations referenced therein for determination



8

of their content, meaning and e ffect and otherwise denies any allegations that are inconsistent

therewith.

50. Respon dent denies the allegations set forth in Paragraphs 77 and 78 of the

Verified Petition.


Petition insofar as WPE G and a Tovvn o f Lyme Planning Board m ember submitted comm ents to

the Planning Board on or about August 17, 2010 and Respondent denies the remainder of the

allegations set forth at Paragraph 79 of the Verified Petition.


truth of the allegations set forth in Paragraph 80 of the V erified Petition.



of their content, meaning and e ffect and otherwise denies any allegations that are inconsistent

therewith.

54. Respon dent denies the allegations set forth in Paragraphs 82, 83 and 84 of the

Verified Petition.

55. In response to Paragraph 85 o f the Verified Petition, Respon dent repeats and re-

alleges the prior paragraphs as if fully set forth herein.


Petition.





9

of their content, meaning an d effect and otherwise denies any allegations that are inconsistent

therewith.

58. With respect to the allegations set forth in Paragraph 88 of the Verified Petition,

Respon dent respectfully refers the Court to the written comm ents submitted to the Planning

Board for determination of the content, meaning and effect thereof and otherwise denies any



Petition.

60. In response to Paragraph 90 o f the Verified Petition, Respond ent repeats and re-



Respon dent respectfully refers to the regulations referenced therein fo r determination o f their

content, mea ning and effect and otherw ise denies any allegations that are inconsistent therewith.

62. With respect to the allegations set forth in Paragraph 92 of the V erified Petition,

Respon dent states that they are conclusions of law for which no respo nsive pleading is required.


Petition.


Petition insofar as the Town of Cape Vincent has adopted a local code of ethics and with respect

to the remainder of the allegations set forth in Paragraph 94 o f the Verified Petition, Respond ent

respectfully refers the Co urt to the regulations referenced therein for determina tion of their

content, mea ning and effect and otherw ise denies any allegations that are inconsistent therewith.



- 10 -

65. W ith respect to the truth of the allegations set forth in Paragraph 95 of the

Verified Petition, Respon dent respectfully refers the C ourt to the regulations referenced therein

for determination of their content, mean ing and effect and otherwise den ies any allegations that

are inconsistent therewith.

66. With respect to the allegations set forth in Paragraph 96 of the Verified Petition,

Respon dent states that they are conclusions of law for which no respo nsive pleading is required.


Petition.

AS AND FOR A FIRST AFFIRMATIVE DEFENSE

68. The V erified Petition fails to state a cause of action up on w hich relief can be

granted.

AS AND FOR A SECOND AFFIRMATIVE DEFENSE

69. The claims asserted in the Ve rified Petition are barred by the Statute of

Limitations.

AS AND FOR A THIRD AFFIRMATIVE DEFENSE

70. The claims asserted in the V erified Petition are barred by lache s, estoppel and/or

waiver.

AS AND FOR A FOURTH AFFIRMATIVE DEFENSE

71. Petitioner lacks standing to assert the claims in the Verified Petition.

AS AND FOR AN FIFTH AFFIR1VIATIVE DEFENSE

72. The municipal approvals challenged herein were rendered in full compliance with

all statutory and regulatory pro cedures, including, but not limited to, the State Environ men tal

Quality Review A ct ("SEQRA ") and the General Municipal Law.



- 12 -

VERIFICATION

STATE OF NEW YORK

: SS.:

COUNTY OF ALBANY

TODD M. M ATHES, being duly sworn, deposes and says as follows:

1. I am an associate attorney at Whiteman Osterman & Fianna L LP, attorneys for

Respondent Town of Cape V incent Planning Board in this mater.

2. I have read the foregoing Verified Answer and the same is true to my o wn

know ledge, except those matters stated to be upon inform ation and belief, and as to those

matters, I believe them to be true.

3. The reason w hy this verification is made by me a nd not by Re sponden t is that

Respon dent does no t have its principal place of business in the Coun ty of Albany.

TODD M. MA HES '01'6AL •

Sworn to before me this

8th day of December 2010.

r-71

(i/Va\ A - / - e 1 CNotary Public of the State of New York

T he r e s a L . P o w e l lN o t a r y P u b l i c , S t a t e o f N e w Y o r k

Qu a l i f i e d in R e n s s e l a e r C ou n 4 fN o . 0 1 P O 4 9 3 1 9 6 6

C o m m i s si o n E x p i r e s J u n e 2 0 . 2 0 I

pb ver. answer

Documents