Mathes~MEMORANDUM OF LAW | Standing (Law) | Standard Of Review

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 MINGLE, ANDREW BINSLEY, and KAREN BOURCY, in their capacities as planning board members, Respondents-Defendants, and ST. LAWRENCE WINPOWER, LLC, Respondent-Defendant.

Index No. 10-2882

MEMORANDUM OF LAW IN SUPPORT OF VERIFIED ANSWER

WHITEMAN OSTERMAN & HANNA LLP Attorneys for Town of Cape Vincent One Commerce Plaza Albany, New York 12260 (518) 487-7600 Michael G. Sterthous, Esq. Todd M. Mathes, Esq. Of Counsel

TABLE OF CONTENTS

PRELIMINARY STATEMENT STATEMENT OF FACTS ARGUMENT POINT I PETITIONER LACKS STANDING TO PURSUE ITS SEQRA CLAIMS A. B. C. D. The Standard for SEQRA and Organizational Standing The Petition Fails to Demonstrate Injury in Fact Petitioner Fails to Support its Standing with Any Probative Evidence Adjudication of this Proceeding Requires the Participation of Individual Members Who Have Not Been Joined

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POINT II THE CAPE VINCENT PLANNING BOARD HAS TAKEN THE REQUISITE HARD LOOK A. B. C. D.

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The Standard of Review 11 The Planning Board Took a Hard Look at Potential Noise Impacts 12 The Planning Board Adequately Considered Cumulative Impacts 15 The Planning Board Adequately Considered Wildlife, Scenic Resources, Property Values and Community Character Impacts 18

POINT III THE CAPE VINCENT PLANNING BOARD SATISFIED SEQRA'S PROCEDURAL MANDATES A. The Planning Board Coordinated its Review with the Town of Lyme B. The Planning Board Adequately Considered Public Comments POINT IV NO IMPERMISSIBLE CONFLICTS OF INTEREST EXIST A. Petitioner's Fifth and Sixth Causes of Action are Barred by Res Judicata and Collateral Estoppel B. No Prohibited Conflicts of Interest Exist CONCLUSION

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PRELIMINARY STATEMENT
Respondent-Defendant Planning Board of the Town of Cape Vincent ("Planning Board") respectfully seeks dismissal of the Verified Petition in the above captioned proceeding. Nothing in the Verified Petition justifies judicial interference with the Planning Board's September 15, 2010 issuance of a statement of findings in accordance with the State Environmental Quality Review Act ("SEQRA"), Article 8 of the Environmental Conservation Law and its implementing regulations at 6 NYCRR Part 617, regarding the St. Lawrence Windpower, LLC ("St. Lawrence") wind farm project ("the Project"), which is currently undergoing site plan review by the Planning Board. First, the record clearly establishes that the Planning Board has properly complied with all relevant procedures, took a hard look at the potentially significant environmental impacts associated with the Project, and issued a reasoned statement of SEQRA findings. The Planning Board's SEQRA findings are based on more than three years of review of a Draft Environmental Impact Statement ("DEIS"), Supplemental DEIS ("SDEIS"), Final EIS ("FEIS"), and numerous public and involved agency comments, as well as its own experience and expertise with the administration and enforcement of the Town's Zoning Law and SEQRA, and that of its engineering and legal consultants, The Bernier Carr Group, Cavanaugh Tocci Associates, Inc., and Whiteman, Osterman & Hanna, LLP. The record also clearly establishes that the Planning Board, and its individual members, has continuously acted in accordance with both Article 18 of the General Municipal Law and the local Town of Cape Vincent Ethics Code regarding its review of the Project. None of the Planning Board members are employed by St. Lawrence, have leases directly with St. Lavvrence, nor do any of the Planning Board members' spouses or dependents have any such lease interests

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in the Project. Accordingly, no prohibited conflicts of interest exist. In fact, despite the fact that Planning Board member Karen Bourcy does not have a conflict within the express meaning of either the General Municipal Law or the Town's Ethics Code, she recused herself from deliberation and discussion regarding the Project out of an abundance of caution. Similarly, the remaining Planning Board members heretofore fully disclosed any and all relationships they had to wind development planned for the Town generally, pursuant to General Municipal Law § 803. Nothing more should be required of the Planning Board here. Finally, the Verified Petition should be dismissed because Petitioner-Plaintiff Wind Power Ethics Group ("Petitioner") has failed to establish that it has standing to challenge the Planning Board's SEQRA findings. Alternatively, Petitioner's fifth and sixth causes of action, "conflict of interest violations," should be dismissed as barred by the doctrines of res judicata and collateral estoppel since Petitioner brought this claim (albeit unsuccessfully) in an appeal to the Town of Cape Vincent Zoning Board of Appeals ("ZBA"), and the appeal culminated in a decision of the Appellate Division, Fourth Department, Matter of Wind Power Ethics Group (WPEG) v Zoning Bd. of Appeals of Town of Cape Vincent, 60 AD3d 1282 (4th Dept 2009). For the reasons set forth herein, the Verified Petition should be dismissed.

STATEMENT OF FACTS
St. Lawrence submitted a site plan application to the Planning Board in support of the Project in 2006. As set forth in the initial application, the Project was to include up to 97 wind turbines, an electrical substation, and energy collection and transmission lines to be located in the Town's Agricultural-Residential Zoning District. (See R. at 1-37). 1 The Planning Board, in turn, commenced its site plan review of the Project as a "utility" pursuant to Article IV of the Town Zoning Law.
Citations to the record herein will be in the following format: (R. at ).

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Petitioners responded by filing an administrative appeal to the ZBA, challenging the Planning Board's treatment of the Project as a "utility." Petitioners' appeal was in the nature of a petition to the ZBA for clarification and an interpretation of the existing Zoning Law, pursuant to the procedure set forth under Town Law § 267-b and the Town Zoning Law § 715. Petitioners' appeal was reviewed by the ZBA at a public meeting on January 7, 2007, a public meeting and hearing on January 29, 2007, and another public meeting on February 5, 2007. Petitioners and St. Lawrence were present at these meetings and hearings, and submitted oral testimony to the ZBA, as did other members of the community. Among Petitioner's claims on the appeal was a contention that the Planning Board was acting in violation of Article 18 of the General Municipal Law and the Town's Ethics Code. (See Aff. of Rienbeck, II 8). On February 5, 2007, the ZBA determined, by majority vote, that the Project constituted a "utility" for purposes of the Town's Zoning Law. Petitioner then commenced an Article 78 proceeding challenging the ZBA's determination. The Supreme Court (Gilbert, J.) and Appellate Division, Fourth Department, both upheld the ZBA's decision.
Ethics Group, 60 AD3d 1282. See Matter of Wind Power

During this time, the Planning Board continued with its review of the Project. The DEIS was accepted by the Planning Board as complete within the meaning of SEQRA in January 2007. (See R. 48-50). A properly noticed public hearing was conducted on March 24, 2007. St. Lawrence submitted additional reports to the Planning Board for review, including a May 2007 Avian and Bat Study and Final Report, and a June 2007 Supplemental Shadow Flicker Report. The Planning Board continued to accept public and agency comment on the DEIS through June 2007. All of the comments were provided to St. Lawrence. (See R. at 53-54).

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Between June 2007 and March 2009, St. Lawrence considered the comments by the Planning Board, as well as those of the public and SEQRA involved agencies. In response to these comments, St. Lawrence reduced the footprint of its project from 97 wind turbines to 53 in order to avoid various critical environmental resources and minimize potential environmental impacts, including Project noise, potential future avian and bat mortality, and wetland impacts, to name a few. As a result of this modification and others, the Planning Board required St. Lawrence to prepare a Supplemental DEIS ("SDEIS"). Accordingly, in early 2009, St. Lawrence submitted an SDEIS to the Planning Board and the Planning Board accepted the SDEIS as complete on March, 25 2009. (See R. at 87, 13023616). The SDEIS included numerous site specific studies, including wildlife, cultural resources, noise and visual impact studies, as well as extensive correspondence with the interested and involved SEQRA agencies. On May 16, 2009, the Planning Board conducted a properly noticed public hearing on the SDEIS. Written comments were accepted through May 30, 2009. The Planning Board and its engineering and legal consultants spent the better part of a year considering the SDEIS and public and agency comments received on the SDEIS in order to prepare the FEIS. St. Lawrence submitted a draft of the FEIS to the Planning Board for consideration in the summer of 2010 and, upon revision by the Planning Board, the FEIS was accepted as complete in August 2010. Finally, culminating more than three years of exhaustive review, the Planning Board issued a statement of SEQRA findings on September 15, 2010 ("Findings Statement"), in accordance with 6 NYCRR § 617.11(d). (See R. at 93-97). As set forth in the Findings Statement, the Planning Board (i) considered the relevant environmental impacts, facts and conclusions disclosed in the FEIS; (ii) weighed and balanced relevant environmental impacts

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with social, economic and other considerations; (iii) provided a rationale for its decision; (iv) certified that the requirements of SEQRA have been met; and (v) certified that consistent with social, economic and other essential considerations from among the reasonable alternatives available, the action is one that avoids or minimizes adverse environmental impacts to the maximum extent practicable, and that the adverse environmental impacts will be avoided or minimized to the maximum extent practicable by incorporating as conditions to the decision those mitigative measures that were identified as practicable. (See R. at 5919-6033).

ARGUMENT POINT I PETITIONER LACKS STANDING TO PURSUE ITS SEQRA CLAIMS
Petitioner has failed to establish organizational standing to bring its SEQRA-based claims. Notably absent from the Verified Petition is any discussion of the standards applicable to establishing organizational standing. The only petitioner here is an organization - the "Wind Power Ethics Group." As an organization, Petitioner must not only establish the requirements of SEQRA standing of its members, but must also show that the interests it seeks to protect are within its organizational purposes, that it is an adequate representative of its members' interests, and that participation of its individual members in the litigation is not required. See Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 774 (1991); Matter of Citizens Organized to Protect the Envt. v Planning Bd. of Town of Irondequoit, 50 AD3d 1460, 1460-1461 (4th Dept 2008). Petitioner bears the burden on each of these issues. Yet here, Petitioner utterly failed to even attempt to prove requisite standing. As such, the Verified Petition should be dismissed in its entirety.

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A.

The Standard for SEQRA and Organizational Standing In order to establish standing to pursue SEQRA-based claims, Petitioner must establish

that it "'will suffer an environmental impact in fact [as a result of the Project], i.e., one that is in some way different from that of the public at large.'" Matter of Bolton v Town of S. Bristol Planning Bd., 38 AD3d 1307, 1308 (4th Dept 2007) (quoting Matter of Piela v Van Voris, 229 AD2d 94, 96 [3d Dept 1997]); see also Society of Plastics Indus., 77 N.Y.2d at 774; Matter of Save Our Main St. Bldgs. v. Greene County Legislature, 293 AD2d 907, 908 (3d Dept 2002), lv denied 98 NY2d 609 (2002). As the Court of Appeals has held, "[t]he status of neighbor does not . . . automatically provide the entitlement, or admission ticket, to judicial review in every instance." Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 414 (1987). "The test is whether the neighbor is close enough to suffer some harm other than that experienced by the public generally and 'even where petitioner's premises are physically close to the subject property, an ad hoc determination may be required as to whether a particular petitioner itself has a legally protectable interest so as to confer standing.'" Matter of Oates v Village of Watkins Glen, 290 AD2d 758, 761 (3d Dept 2002) (quoting Matter of Sun-Brite Car Wash, 69 NY2d at 414). "[T]he Court of Appeals has specifically rejected the notion of standing based on a claim, as we have in this case, that a project would 'indirectly affect traffic patterns, noise levels, air quality and aesthetics throughout a wide area.'" Id. at 760-761 (quoting Society of Plastics Indus., 77 NY2d at 775). With respect to an organization, such as Petitioner here, "'the key determination to be made is whether one or more of its members would have standing to sue; standing cannot be achieved merely by multiplying the persons a group purports to represent.'" Matter of Otsego 2000 v Planning Bd. of Town of Otsego, 171 AD2d 258, 260 (3d Dept 1991) (quoting Society of

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Plastics Indus., 77 NY2d at 775), lv denied 79 NY2d 753 (1992). An organizational petitioner must also "demonstrate that the interests it asserts are germane to its purposes, so as to satisfy the court that it is an appropriate representative of those interests" and "it must be evident that neither the asserted claim nor the appropriate relief requires participation of individual members." Society of Plastics Indus., 77 N.Y.2d at 775; see also New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211 (2004); Matter of Citizens Organized to Protect the Envt., 50 AD3d at 1460-1461 ("To establish that it had the requisite associational standing to bring the proceeding [the petitioner] was required to establish that at least one of its members would have standing to sue, that it is representative of the organizational purposes it asserts and that the case would not require the participation of individual members." [Internal quotation marks omitted]). Petitioner bears the burden of establishing standing, and must do so with probative evidence—allegations of standing without evidentiary support are insufficient. See Society of Plastics Indus., 77 NY2d at 769; Matter of Save the Pine Bush, Inc. v Planning Bd. of Town of Clifton Park, 50 AD3d 1296, 1297-1298 (3d Dept 2008), lv denied 10 NY3d 716 (2008); Matter of Nolsen Corp. v Ontario County Bd. of Supervisors, 295 AD2d 924, 925 (4th Dept 2002); Matter of Piela, 229 AD2d at 96. B.
The Petition Fails to Demonstrate Injury in Fact

The Verified Petition fails to establish any "special harm" sufficient to establish SEQRA standing. Petitioner's conclusory, unsupported allegations of proximity to the project and potential exposure to noise impacts or diminution of property values are not enough to establish standing because they do not establish special harm – different in kind and degree from the harm suffered by the general public in the vicinity of the project. See e.g. Matter of Bolton, 38 AD3d

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at 1308; Matter of Save Our Main St. Bldgs., 293 AD2d at 908; Matter of Oates, 290 AD2d at 760-761. The Verified Petition alleges only that Petitioner's purported members are concerned about noise, property value diminution, and like allegations. Such allegations that the Project would "indirectly affect traffic patterns, noise levels, air quality and aesthetics throughout a wide area" have been repeatedly rejected by the courts as a basis for SEQRA standing. Society of Plastics Indus., 77 NY2d at 775; see e.g. Matter of Bolton, 38 AD3d at 1308; Matter of Save Our Main St. Bldgs., 293 AD2d at 908.

C. Petitioner Fails to Support its Standing with Any Probative Evidence
Furthermore, the Verified Petition must be dismissed since Petitioner has failed to support its standing claims with any probative evidence. The proceeding was brought in the name of Wind Power Ethics Group by John Byrne, its president. The Petition was verified by Mr. Byrne, but he does not specifically claim to be potentially impacted by the Project in any way whatsoever. Rather, as noted above, Petitioner merely alleges harms to unnamed homeowners. It is well established that a SEQRA petitioner must submit probative evidence in support of a claim of standing. See Matter of Wyman v Braman, 298 AD2d 787, 788-789 (3d Dept 2002) (court can only consider standing allegations of petitioners that had actually submitted affidavits articulating their claims of standing), lv dismissed 99 NY2d 578 (2003); Matter of Nolsen Corp., 295 AD2d at 924 ("Although the conclusory allegations of the amended verified petition concerning increased traffic and pollution 'are sufficient to state petitioners' claim of standing, they are lacking in probative value and [do] not of themselves suffice to establish it.'" [quoting Matter of Piela, 229 AD2d at 96]); Matter of Piela, 229 AD2d at 96 (court cannot

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consider allegations of standing where there are no supporting affidavits to establish unique environmental impact different from the public at large). This is especially true where, as here, the petitioner is an organization and has failed to adduce any evidence from its purported members sufficient to show both that they are in fact members of the organization and that they have satisfied the "special harm" requirement of SEQRA standing. See Matter of Otsego 2000, 171 AD2d at 260 (an organizational petitioner cannot establish standing without supporting affidavits from its members); see also Matter of Save the Pine Bush, Inc., 50 AD3d at 1298 ("petitioner has failed to submit affidavits from any individuals who will be adversely affected by the development of this property in a marmer that is different in kind or degree from that of the public at large"). Indeed, the Verified Petition fails in the first instance to include any affidavits of individual members or any other probative evidence predicate to establishing organizational standing.
D. Adjudication of this Proceeding Requires the Participation of Individual Members Who Have Not Been Joined

Finally, the Verified Petition must be dismissed under the Appellate Division, Fourth Department's recent decision in Matter of Citizens Organized to Protect the Envt. v Planning Bd. of Town of Irondequoit (50 AD3d 1460 [4th Dept 2008]). There, the organizational petitioner, Citizens Organized to Protect the Environment ("COPE"), brought a CPLR Article 78 proceeding challenging certain land use determinations of a planning board. COPE, like Petitioner here, predicated its standing allegations on the basis of alleged environmental impacts on property owned by nearby landowners, the Brinkmans, who were alleged to be members of COPE. The Court held that COPE had failed to meet the requirements for organizational standing because its petition would require the participation of the Brinkmans, who had not been joined as petitioners. See id. at 1461. Similarly, Petitioner's standing is presumably premised

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here solely upon unsupported allegations of harm to unnamed homeowners purported to be members of Petitioner's organization. As such, this case undoubtedly requires the participation of those homeowners, yet they have not been joined. Petitioner, therefore, cannot sustain organizational standing. See id.; see also New York State Assn. of Nurse Anesthetists, 2 NY3d at 211; Society of Plastics Indus., 77 NY2d at 775-777; Matter of Dental Socy. of State of N.Y. v Carey, 61 NY2d 330, 333-335 (1984). Accordingly, because Petitioner failed to establish that any of its members would suffer any environmental injury-in-fact in a manner and degree distinct from the public at large arising from the Project and failed to identify and join such members in this proceeding, Petitioner failed to meet its threshold standing burden and this proceeding must be dismissed. POINT II THE CAPE VINCENT PLANNING BOARD HAS TAKEN THE REQUISITE HARD LOOK The essence of Petitioner's SEQRA claims is that the Planning Board wrongly balanced the competing interests under SEQRA in favor of allowing the Project to proceed. SEQRA, however, does not allow the Court to substitute its judgment for that of the Planning Board and overturn the vote of the Planning Board here. Applying the correct standard of judicial review, it is clear that the Planning Board complied with SEQRA's procedural and substantive mandates and that the Court should thus uphold its SEQRA Findings Statement and dismiss the Verified Petition. In considering the sufficiency of the DEIS, SDEIS, FEIS and Findings Statement, it is relevant to note that the majority of the deficiencies alleged by the Verified Petition amount to nothing more than generic disagreement over the desirability of the Project in the Town. As set forth below, such disagreement is outside the scope of this Court's review.

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A. The Standard of Review It is well settled that the court's role in determining the adequacy of a lead agency's

substantive compliance with SEQRA is extremely limited. In Matter of Jackson v New York State Urban Dev. Corp. (67 NY2d 400 [19861), the Court of Appeals defined the limits of a court's power to review the agency's determination: "[The Legislature in SEQRA has left the agencies with considerable latitude in evaluating environmental effects and choosing among alternatives. Nothing in the law requires an agency to reach a particular result on any issue, or permits the courts to second-guess the agency's choice, which can be annulled only if arbitrary, capricious or unsupported by substantial evidence." Id. at 417 (citation omitted); see also Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d 219, 231-232 (2007); Matter of Town of Dryden v Tompkins County Bd. of Representatives, 78 NY2d 331, 333-334 (1991). Judicial review of an agency's SEQRA determination is limited to whether the determination was made in accordance with lawful procedure and whether, substantively, the determination was arbitrary and capricious, affected by an enor of law, or an abuse of discretion. Apkan v Koch, 75 NY2d 561, 570 (1990). The SEQRA record is reviewed "to determine 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." Jackson, 67 NY2d at 417. Moreover, "'it is not the role of the courts to weigh the desirability of any SEQRA action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively.'" Matter of North Country Citizens for Responsible Growth, Inc. v. Town of Potsdam Planning Bd., 39 AD3d 1098 (3d Dept 2007) (alteration omitted) (quoting Jackson, 67 NY2d at 416).

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Petitioners here complain primarily about the Planning Board's alleged lack of consideration of noise and cumulative impacts. Petitioners also make very cursory statements regarding wildlife, scenic resources, property values, and community character. These are all areas openly and thoroughly considered by the Planning Board for over three years at numerous public hearings and meetings, and the record clearly establishes that the Planning board properly identified and took a hard look at each of these areas of potential environmental impact and issued a reasoned set of findings based thereon. That is all that SEQRA requires and Petitioners' claims to the contrary should be rejected.

B. The Planning Board Took a Hard Look at Potential Noise Impacts
With respect to noise concerns, St. Lawrence submitted two noise impact reports. The studies were prepared by St. Lawrence's noise consultants, Tetra Tech EC, Inc. ("Tetra Tech") and Hessler Associates, Inc. ("Hessler"). The Planning Board also hired its own noise consultants, The Bernier Carr Group ("BCG") and Cavanaugh Tocci Associates, Inc. ("CTA"), to assist its review and understanding of the reports. Tetra Tech reached the conclusion in its report that Project noise would not regularly exceed 48 dB(A) 2 at off-site residences. (See R. at 260-266). Hessler's report similarly concluded that only four off-site residences would experience Project noise levels at about 42 dB(A) on a consistent basis. Hessler also concluded that cumulative noise from simultaneous operation of the Project and BP Wind Energy's planned wind farm would raise total projected noise levels at a limited set of off-site residences by only about 2 dB(A). (See R. at 2893-2950, 4185-4231, 4672-4693). The conclusions and supporting data presented in the Tetra Tech and Hessler reports were rigorously reviewed and critiqued by the Planning Board, BCG, CTA, as

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The term "dB(A)" refers to an "A" weighted decibel scale which expresses perceived loudness.

well as by other involved agencies and the public. (See R. at 4266-4273). The Planning Board and its consultants likewise considered the involved agency and public comments. Based on its review, the Planning Board concluded that day-to-day Project noise should not unreasonably impair public health or the environment. In reaching this conclusion, the Planning Board was informed, at least in part, by the NYSDEC Program Policy "Assessing and Mitigating Noise Impacts," which provides that ambient noise levels below 55 dB(A) are "sufficient to protect public health and welfare.... The guidance also identifies typical background noise levels for rural farm land at about 45 dB(A). Moreover, the Planning Board, together with its consultants, BCG and CTA, took an overly conservative approach to identifying the significance of potential noise impacts on even the most sensitive of receptors, noting that existing background noise levels vary throughout the Town as a result of the existence or absence of other sources of noise, such as active agricultural operations, and the absence of leaves, insects and other noise sources during the winter which would elevate background noise levels. Indeed, it was the Planning Board's consultant, CTA that identified the possibility that Hessler's incorporation of a regression analysis in his predictive model might have underestimated actual potential future noise impacts in the quietest of background noise situations; during the winter when wind speeds are low. (See R. at 4269). To account for this possibility, CTA recommended an additional evaluation using the 90th percentile of the wintertime L90 data in Hessler's model. In a July 15, 2010 letter to the Planning Board, CTA set forth the results of its evaluation and concluded that at the "cut-in" wind speed of the selected turbines (6 meters per second), background sound levels could be as much as 5 decibels lower than levels relied upon by Hessler as a comparative point to describe

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the magnitude of the impact. (See R. at 4286-4288). As a result, the Planning Board had a much more complete understanding of the full range of potential noise impacts and their magnitude. The additional analysis did not, however, substantively change the Planning Board's viewpoint regarding the magnitude of the overall noise impact of the Project. The Planning Board concluded that the additional analysis addressed an event which will be limited in reach and frequency, and the fact remained that even under this circumstance Project noise will not impair public health or the environment since it will generally occur at levels below 45 dB(A) at off-site residences and other sensitive receptors. Indeed, this is a conclusion which had been affirmed by Tetra Tech, Hessler and CTA, and which was not disputed even by Petitioner's noise consultant. On the basis of this record, therefore, the Planning Board was clearly informed and able to make a reasoned decision as part of its SEQRA findings. The Planning Board's decision was also based, in part, on the fact that numerous mitigation measures had already been incorporated into the Project design, including: reduction of the Project footprint from 96 to 53 turbines; incorporation of adequate setbacks to reduce off-site noise impacts to less than 45 dB(A); and selection of a relatively quiet wind turbine model, among others. Thus, informed with all of the above information and pursuant to 6 NYCRR § 617.11(d), the Planning Board balanced Project noise impacts and other potential environmental impacts with social, economic and other considerations, and reached its findings that the Project avoids impacts to the maximum extent practicable and thus could proceed further to full site plan review. See e.g. Matter of King v Saratoga County Bd. of Supervisors, 89 NY2d 341, 349 (1996) (holding that "respondent engaged in the informed and systematic balancing analysis the statute requires" by seeking and considering "other points of view and itself evaluat[ing] the

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environmental consequences of the proposed [project]"); Finger Lakes Preserv. Assn. v Town Bd. of the Town of Italy, 25 Misc 3d 1115, 1122-1123 (Sup Ct, Yates County 2009) (holding that the Town properly "balanced the existing and potential social, economic and environmental factors" in determining that mitigation measures adopted best reduced the Project's potential environmental impacts). This was the Planning Board's decision to make, not CTA's or Petitioner' s. Finally, the Planning Board incorporated a complaint resolution process in its statement of findings only to ensure that its expectation with respect to the limited noise impact would be realized. (See R. at 6012-6013). Moreover, the complaint resolution process was initially proposed by St. Lawrence in its submission of the SDEIS, was restated in the FEIS, and would only be triggered if Project noise regularly exceeds 45 dB(A) — an unanticipated and unlikely possibility here.
C. The Planning Board Adequately Considered Cumulative Impacts

Petitioner contends that the Planning Board failed to undertake an adequate cumulative impacts analysis. Where a SEQRA action is reasonably related to other proposed actions, SEQRA requires the lead agency to analyze the cumulative effects of all proposed projects within the relevant environmental area. See Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 206 (1987); Sun Co. v City of Syracuse Indus. Dev. Agency, 209 AD2d 34, 49 (4th Dept 1995) (SEQRA "require[s] 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 undertaken as a result thereof, be considered"), appeal dismissed 86 NY2d 776 (1995); Matter of Stewart Park & Reserve Coalition v New York State Dept. of Transp., 157

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AD2d 1, 9-10 (3d Dept 1990), affd 77 NY2d 970 (1991). Specifically, 6 NYCRR 617.7(c)(2) provides: "For the purpose of determining whether an action may cause [significant adverse environmental impact] the lead agency must consider reasonably related longterm, short-term, direct, indirect and cumulative impacts, including other simultaneous or subsequent actions which are: (i) included in any long-term plan of which the action under consideration is a part; (ii) likely to be undertaken as a result thereof; or (iii) dependent thereon." See also Gerrard, Ruzow, & Weinberg, 1 Environmental Impact Review in New York § 5.02[1] n 1 (2005) (noting the "overlap" between the segmentation and cumulative impact cases). Indeed, as the Court of Appeals held in Save the Pine Bush, "when an action with potential adverse effects on the environment is part of an integrated project designed to balance conflicting environmental goals within a subsection of a municipality that is ecologically unique, the potential cumulative impact of other proposed or pending projects must be considered pursuant to SEQRA before the action may be approved." 70 NY2d at 200. Here, again, the Planning Board went above and beyond what was required. The SDEIS, FEIS, and Findings Statement fully evaluated the potential cumulative impacts from contemporaneous construction and/or operation of the Project and multiple other surrounding proposed wind farms, even though these other wind farms are not necessarily related to the St. Lawrence Project. See e.g. Matter of Friends of Stanford Home v Town of Niskayuna, 50 AD3d 1289, 1291 (3d Dept 2008) ("where seemingly related projects are, in fact, independent and not part of a larger plan of development, cumulative review is not required"), lv denied 10 NY3d 716 (2008). For example, section 4.0 of the SDEIS contains a: (i) quantification of potential cumulative wetland impacts; (ii) cumulative wildlife and wildlife habitat impact estimates, including cumulative estimated bird and bat fatalities; (iii) a description of the low potential for overlapping construction periods and transportation routes associated with the multiple projects;

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(iv) a description of future land use and agricultural land impacts; and (v) descriptions of other potential cumulative impacts, including visual, air quality, noise, and socioeconomic effects of the multiple projects. (See R. at 1542-1561). The Planning Board determined, accordingly, that none of these potential cumulative impacts were significant. Wetland impacts attributable to each of the projects will be offset through required mitigation for each project. Cumulative bird and bat kill estimates were determined to not be statistically significant to the vitality of any listed threatened or endangered species. (See R. at 4591-4671. 4992-5012). It is not anticipated that construction periods will overlap, and even if they do, overlapping transportation routes are not anticipated to result in major traffic conflicts. (See R. at 4698-4740). Land use and agricultural land impacts are not expected to be cumulatively significant since each project would be in compliance with local zoning controls, and constructed at least in New York State following NYS Department of Agriculture and Markets guidelines for wind farm development. Cumulative noise from simultaneous operation of the BP Wind Energy wind farm and the Project will raise total noise levels by only about 2 dB(A). (See R. at 4672-4693). And most significantly, while cumulative visual impacts will result, it is the foreground view of the nearest turbines which generally results in a significant change to the aesthetic of any particular vantage point. (See R. at 4913-4921). Thus, the addition of distant views of additional turbines to any particular impacted viewshed should not result in a significant cumulative visual impact. Accordingly, other than a bald allegation as to the sufficiency of the review and a general disagreement with the outcome of the analysis, Petitioner has completely failed to substantiate a legitimate claim with respect to cumulative impacts and the Planning Board's effort should not be disturbed.

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D.

The Planning Board Adequately Considered Wildlife, Scenic Resources, Property Values and Community Character Impacts

Similar to the Planning Board's consideration of noise and cumulative impacts, the DEIS, SDEIS, FEIS and Findings Statement each and together demonstrate a "hard look" at each potential environmental impact attributable to the Project, including potential impacts to wildlife, scenic resources, property values, and community character.
(1) Wildlife

Regarding wildlife, the Planning Board reviewed the studies contained in the DEIS, SDEIS and FEIS (see R. at 4952-4991), as well as the public and agency comments received regarding the Project, and set forth its analysis of impacts and mitigation at pages 26 through 54 of the Findings Statement.
(See R. at 5945-5973). In addition to the Planning Board's

independent review, significant attention also was paid to this issue by NYSDEC and the US Fish and Wildlife Service. Comments by these other agencies were incorporated into the SEQRA materials and responded to by the Planning Board as appropriate.
(2) Property Value

The Planning Board reviewed the property valuation studies contained in the DEIS, SDEIS, and FEIS, as well as the studies submitted by the public and concluded that: Although the Planning Board understands the concerns of local residents about the possible impacts on property values that could result from the introduction of the Project into the local area, given the results of these studies, the Planning Board finds that it is reasonable to conclude that the proposed Project will not adversely affect local property values. Further, the Planning Board finds that the social and economic benefits of the project to the local taxing jurisdictions, the Towns and to participating landowners outweigh any potential adverse impact that the Project could have.

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Notably, however, these issues are not within the ambit of SEQRA. SEQRA limits the environmental consequences to be considered to "physical conditions that will be affected by a proposed action." 6 NYCRR 617.2(1). The proper environmental consequences within SEQRA's purview include "land, air, water, minerals, flora, fauna, noise, resources of agriculture, archeological, historic or aesthetic significance, existing patterns of population concentration, distribution or grovvth, existing community or neighborhood character, and human health." Id. It is clear, therefore, that "economic impact is not a physical condition within the contemplation of the statute." Matter of Wilder v New York State Urban Dev. Corp., 154 AD2d 261, 262 (1st Dept 1989), lv denied 75 NY2d 709 (1990); see also Matter of RidgewoodBushwick Senior Citizens Council v Giuliani, 227 AD2d 261, 262 (1st Dept 1996) ("The umbrella of laws designed to protect the environment should not be expanded in furtherance of litigation whose goal is purely economic relief."); Sun Co. v City of Syracuse Indus. Dev. Agency, 209 AD2d 34, 50 (4th Dept 1995) (lead agency did not violate SEQRA by failing to address economic impacts of the project. "Those impacts involved purely competitive economic factors, not environmental ones, and, therefore, were beyond the scope of SEQRA."), appeal dismissed 86 NY2d 776 (1995). Therefore, as a strictly legal issue, the analysis of the economic interests of private businesses and individuals and speculation as to future land value as affected by a particular project is not a burden placed on public officials. In fact, the NYSDEC "handbook" on SEQRA states that it is inappropriate to consider "[t]he potential effects that a proposed project may have in drawing customers and profits away from established enterprises or in reducing property values in a community" because economic consequences and competition are not environmental factors. NYSDEC, The SEQRA Handbook, P. 60-61.

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This limitation on the scope of review under SEQRA has been acknowledged by the Appellate Division, Fourth Department:

"[The lead agency's] failure to address the economic impacts of the project on the overall [municipal] economy did not violate SEQRA. Those impacts involved purely competitive factors, not environmental ones, and, therefore, were beyond the scope of SEQRA." Sun Co., 209 AD2d at 50. The New York Court of Appeals has further addressed the issue of whether economic impacts may be considered under SEQRA:

[economic] challenges unrelated to environmental concerns can generate interminable delay and interference with crucial governmental projects. [There is a recognized] danger of allowing special interest groups or pressure groups, motivated by economic self-interest, to misuse SEQRA for such purposes. Society of Plastics Indus., 77 NY2d at 774. And numerous commentators, including the leading New York treatise on this topic, confirm this point: "pure economic or competitive interests fall outside SEQRA's protection." Gerard, Ruzow & Weinberg, Environmental Impact Review in New York § 2.05(3) (1990).3 (3) Scenic Resources and Community Character Regarding scenic resources and community character, Petitioner's conclusory allegations that the Project is inconsistent with the Town's Comprehensive Plan, requiring imposition of conditions to preserve the Town's rural character given the Project's location in the AgriculturalResidential Zoning District, are without merit. The Project is classified as a "utility," allowed asof-right, subject to site plan review by the Planning Board, in the Town's Agricultural-

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NYSDEC has also issued a guidance letter confirming that economic impacts are not within the purview of SEQRA.

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Residential Zoning District. That fact was confirmed by this Court and the Appellate Division, Fourth Department. See Wind Power Ethics Group, 60 AD3d 1282 (4th Dept 2009). The Fourth Department has also held that "zoning is not static; the obligation is the support of comprehensive planning with recognition of the dynamics of change, not slavish servitude to any particular plan." Kravetz v Plenge, 84 AD2d 422, 430 (4th Dept 1982); see also Matter of Town of Bedford v Village of Mount Kisco, 33 NY2d 178, 188 (1973), rearg denied 34 NY2d 668 (1974). Accordingly, where, as here, a community need and opportunity has been identified, the community's decision to embrace a land use which fills that need should be upheld. See Matter of Town of Bedford, 33 NY2d at 188; see also Matter of WEOK Broadcasting Corp. v Planning Bd. of Town of Lloyd, 79 NY2d 373, 385 (1992) (holding that Irdegative aesthetic impact considerations alone, however, unsupported by substantial evidence, may not serve as a basis for denying approval of a proposed 'action' pursuant to SEQRA review"). That is precisely what the record demonstrates. The Planning Board reviewed the studies contained in the DEIS, SDEIS, and FEIS, including visual simulations, as well as the public and agency comments received regarding the Project, and set forth its analysis of impacts and required mitigation at pages 73 through 84 of the Findings Statement. (See R. at 5992-6003).

POINT III
SATISFIED SEQRA'S PROCEDURAL MANDATES

THE CAPE VINCENT PLANNING BOARD

Petitioner claims that the Planning Board violated SEQRA's procedural mandates by failing to coordinate its review with the Town of Lyme Planning Board and by failing to consider public comments received on the FEIS. As shown below, both claims are wholly without merit.

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A.

The Planning Board Coordinated its Review with the Town of Lyme

First, Petitioner lacks standing to assert a claim that certain agencies were not properly included in the SEQRA review. Any such claim belongs solely to those agencies. Matter of King v County of Monroe, 255 AD2d 1003, 1004 (4th Dept 1998) (rejecting failure to conduct coordinated review claim, which was based on failure to identify the Town of Brighton as an involved agency, because "Whe Town has not contested the designation of the County as lead agency, the County's issuance of a negative declaration or the proposed project"), lv denied 93 NY2d 801 (1999); Matter of Congdon v Washington County, 130 AD2d 27, 31 (3d Dept 1987) (rejecting the petitioners' claim that the respondents failed to conduct a coordinated review because Town of Moreau and the APA were not notified of lead agency designation; "[s]ignificantly, neither the Town of Moreau nor APA contested the lead agency request or raised this alleged defect"), lv denied 70 NY2d 610 (1987). Nevertheless, the record clearly reveals that the Cape Vincent Planning Board properly coordinated its review with the Town of Lyme. The DEIS acknowledged the Town of Lyme's potential jurisdiction over approval of a portion of the transmission line for the Project. (See R. at 111-112). Moreover, the record discloses that the Town of Lyme was provided copies of all materials, including the DEIS, SDEIS, and FEIS, and notices of acceptance of those documents by the Planning Board as was required for any SEQRA involved agency. (See R. at 1297-1301, 3603-3616, 5914-5918). The materials and notices were also all published on-line and in the Town of Lyme's and Town of Cape Vincent's official newspapers. Thus, the Planning Board properly carried out its lead agency duties for a coordinated review with the Town of Lyme. Finally, Petitioner's allegation that the Planning Board failed to properly coordinate specifically with the Lyme Planning Board is misplaced and inconsequential. First, the Cape

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Vincent Planning Board was advised by a single Lyme Planning Board member in August 2010 that the Planning Board might have jurisdiction over the Project. The Lyme Planning Board member's statement, however, does not appear to have been authorized by the Planning Board or any other entity of the Town. Second, a lead agency is required to use reasonable diligence in identifying other involved agencies. 6 NYCRR 617.6(b)(3)(iii). Here, the Town of Lyme was identified and has been effectively coordinated with. The Town of Lyme — including its Planning Board — has not raised an objection nor claimed it was uniformed about the SEQRA review for the Project. In fact, the very same Lyme Planning Board member whose letter Petitioner relies on here actually participated and submitted comments during the SEQRA review. Therefore, even a claim of technical failure to send separate materials to the Lyme Planning Board (assuming the Planning Board actually has jurisdiction over the Project) is inconsequential and does not warrant overturning the Cape Vincent Planning Board's statement of findings. See e.g. Matter of King, 255 AD2d at 1004 ("the failure to designate the Town as an involved agency was inconsequential and does not require annulment of the negative declaration or subsequent action taken by the County with respect to the project").

B.

The Planning Board Adequately Considered Public Comments

Petitioner has invented a procedural requirement not contemplated by SEQRA — acceptance of public comment on an FEIS. As set forth at 6 NYCRR § 617.11(a), "[p]rior to the lead agency's decision on an action that has been the subject of a final EIS, it shall afford agencies and the public a reasonable time period (not less than 10 calendar days) in which to consider the final EIS before issuing its written findings statement." This does not mean, as Petitioner contends, that public comments are invited on an FEIS, nor if they are received, that a SEQRA lead agency must consider any such comments in rendering its statement of findings.

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Rather, 6 NYCRR § 617.11(a) goes on to provide that "[Of a project modification or change of circumstance related to the project requires a lead or involved agency to substantively modify its decision, findings may be amended and filed in accordance with subdivision 617.12(b) of this Part." Such a decision, however, falls within the absolute discretion of the Planning Board. See Matter of Riverkeeper, 9 NY3d at 231-232 (dismissing a petition challenging a planning board's decision not to require the preparation of a supplemental EIS, since the decision of whether to require a supplemental EIS was within the planning board's discretion and lilt is not the province of the courts to second-guess thoughtful agency decisionmaking"). The record here clearly did not support the amendment of the statement of findings or the preparation of another SEIS. In sum, while Petitioner's comments have always been heard by the Planning Board, not every comment the Planning Board receives merits a response or has weight such that it would influence the Planning Board's written decisions. POINT IV

NO IMPERMISSIBLE CONFLICTS OF INTEREST EXIST
Petitioner has alleged that the Planning Board's September 15, 2010 issuance of SEQRA findings should be set aside due to allegations of a "conflict of interest." Petitioner first raised this issue, albeit unsuccessfully, in its appeal to the Cape Vincent ZBA in 2007 regarding the Planning Board's treatment of the Project as a "utility." Accordingly, as demonstrated below, the claim is barred by the doctrines of res judicata and collateral estoppel. Nevertheless, as demonstrated by the record and as articulated in the Affidavit of Thomas K. Rienbeck, the Planning Board has been exceedingly cautious in its effort to comply with Article 18 of the General Municipal Law and the parallel obligations of the Town of Cape Vincent Ethics Code. (See Aff. of Rienbeck, Illj 8-21). Since none of the Planning Board members have a prohibited interest in the Project within the meaning of either the General

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Municipal Law or the Town's Ethics Code, and all of the members have disclosed whatever other connection they might have to wind development within or outside the Town, Petitioner's fifth and sixth causes of action should be dismissed.
A. Petitioner's Fifth and Sixth Causes of Action are Barred by Res Judicata and Collateral Estoppel

The doctrines of res judicata and collateral estoppel bar a party from re-litigating issues that were or could have been litigated in a prior action or proceeding. See Parker v. Blauvelt Volunteer Fire Company, Inc., 93 N.Y.2d 343 (1999). The doctrines apply to the quasi-judicial determinations of administrative agencies, including municipal zoning boards. See Ryan, 62 NY2d at 499; Town of Wallkill v Lachmann, 27 AD3d 724, 724 (2d Dept 2006); Jensen v Zoning Bd. of Appeals of Vil. of Old Westbury, 130 AD2d 549, 550 (2d Dept 1987), lv denied 70 NY2d 611 (1987). "Such determinations, when final, become conclusive and binding on the courts" (Ryan, 62 NY2d at 499 [internal quotation marks and alteration omitted]), and all litigation of the question decided must "be closed forever." Id. at 500 (internal quotation marks omitted); Matter of Kennedy, 145 AD2d at 491 ("Whenever any board, tribunal or person is by law vested with authority to judicially determine a question, such a determination, when it has become final, is as conclusive as though the adjudication had been made by a court of general jurisdiction and will therefore have res judicata effect." [internal quotation marks omitted]). The doctrines apply here and preclude Petitioners from re-litigating the issue of whether impermissible "conflicts of interest" exist amongst the Planning Board members. Indeed, in its appeal to the ZBA of the Planning Board's treatment of the Project as a "utility," Petitioner specifically alleged that the Planning Board's decision should have been set aside because various Planning Board members and the Town Code Enforcement Officer had prohibited conflicts of interest in the Project. Petitioner subsequently challenged the ZBA's decision

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interpreting the Project as a utility in an Article 78 proceeding and later appealed Supreme Court's decision to the Appellate Division, Fourth Department. Accordingly, the fact that the conflicts issue was raised and could have been litigated previously bars the restatement of this claim now. B. No Prohibited Conflicts of Interest Exist Notwithstanding that Petitioner's fifth and sixth causes of action are barred by the doctrines of res judicata and collateral estoppel, no prohibited "conflict of interest" exists and, therefore, no basis exists to overturn the Planning Board's decision. Article 18 of the General Municipal Law sets forth circumstances in which conflicts of interest may arise. Specifically, section 801 of the General Municipal Law provides that municipal officers, such as members of the Town Board and Planning Board, shall not hold any interest which creates a conflict with their official duties. Section 800 of the General Municipal Law defines the term "interest" as "a direct or indirect pecuniary or material benefit accruing to a municipal officer or . . . his spouse, minor children and dependents." Accordingly, the prohibition set forth under section 801 applies to interests held by municipal officers, their spouses, and dependents only. To avoid violating the general prohibition of section 801, section 803 of the General Municipal Law requires municipal officers to "publicly disclose the nature and extent of any such interest in writing to his or her immediate supervisor and to the governing body thereof as soon as he or she has knowledge of such actual or prospective interest." Courts have held that the prohibition against conflicts of interest by board members may be a basis for nullifying government actions, including approvals or permits, when board members having such interests have participated in the action. Such a situation is not presented here, however.

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The Cape Vincent Ethics Code contains similar provisions, and only reaches beyond Article 18 of the General Municipal Law in terms of the disclosure obligations set forth under the Code. The Ethics Code requires each public officer of the Town to "publicly disclose on the official record the nature and extent of any direct or indirect financial or other private interest he has in [] legislation." Members of the Planning Board heretofore disclosed whatever connection they might have to the Project or other wind development efforts in the region. These disclosures were made to the Town Board as follows: Richard Edsall — lease with BP Wind Energy; George Mingle — no interest; Tom Rienbeck — no interest; Andrew Binsley — relatives (not spouse, child, or parent) with leases with St. Lawrence Wind Power and BP Wind Energy; Thomas Ingersoll (former member) — no interest; Karen Bourcy — relatives (not spouse or parent, but adult son, brother, and nephew) with leases with St. Lawrence Windpower. Since none of the Planning Board members themselves have leases with St. Lawrence, nor do any of their spouses, minor children, or dependents, no prohibited conflicts of interest existed which would have required recusal or even disclosure of the interests under the General Municipal Law. Similarly, since the Planning Board's review of the Project SEQRA findings did not entail the consideration of "legislation," no prohibited conflicts of interest existed which would have required recusal or even disclosure of the interests under the Cape Vincent Ethics Code. The Planning Board members' connections to the Project were, nevertheless, disclosed and Karen Bourcy recused herself completely from review of the Project due to her adult son's lease interest. She has no conflict but acted out of an over abundance of caution. Andrew Binsley also recused himself from the September 15, 2010 vote which lies at the center of

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Petitioner's claims, albeit only because he did not have an adequate opportunity to review the draft findings statement. He, too, has no conflict of interest. Accordingly, Petitioner's fifth and sixth causes of action should be dismissed.
CONCLUSION

For the foregoing reasons, as well as those set forth in the accompanying affidavits and submissions of the Planning Board, the Planning Board respectfully requests that this Court enter a judgment dismissing the Verified Petition and Complaint in its entirety, awarding it the costs, fees and disbursements incurred in this proceeding and awarding it such other relief as this Court shall deem just, proper or equitable.

Dated: Albany, New York December 9, 2010

WHITEMAN OSTERMAN & HANNA LLP

Todd M. Mathes, Esq. Attorneys for Respondent Planning Board of the Town of Cape Vincent One Commerce Plaza Albany, New York 12260 (518) 487-7600

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