SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF JEFFERSON

WIND POWER ETHICS GROUP,

Petitioner-Plaintiff, VERIFIED ANSWER

- against - Index No. 10-2882

RJI No. 22-10-0990
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 WINDPOWER, LLC,

Respondent-Defendant.

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

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

1. Respondent lacks knowledge or information sufficient to form a belief as to the

truth of the allegations set forth in Paragraph 1 of the Verified Petition.

2. Respondent denies the allegations set forth in Paragraph 2, 3, 4, 5, 6 and 7 of the

Verified Petition.

3. Respondent lacks knowledge or information sufficient to form a belief as to the

truth of the allegations set forth in Paragraphs 8 and 9 of the Verified Petition.
 -2

4. Respondent admits the allegations set forth in Paragraph 10 of the Verified

Petition.

5. Respondent admits the allegations set forth in Paragraph 11 of the Verified

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

planning Board member.

6. Respondent admits the allegations set forth in Paragraphs 12, 13, 14, 15, 16 and

17 of the Verified Petition.

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

Petition.

8. Respondent admits the allegations set forth in Paragraph 19 of the Verified

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

accordance with 6 N.Y.C.R.R. § 617.11 and denies the remainder of the allegations set forth in

Paragraph 19 of the Verified Petition.

9. Respondent admits the allegations set forth in Paragraph 20 of the Verified

Petition.

10. With respect to the allegations set forth in Paragraph 21 of the Verified Petition,

Respondent respectfully refers the Court to the written statement of SEQRA findings for

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

allegations that are inconsistent therewith.

11. Respondent lacks knowledge or information sufficient to form a belief as to the

truth of the allegations set forth in Paragraphs 22, 23, 24, 25, and 26 of the Verified Petition.
 -3

12. Respondent lacks knowledge or information sufficient to form a belief as to the

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

of the term "industrial" is undefined.

13. Respondent lacks knowledge or information sufficient to form a belief as to the

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

14. Respondent admits the allegations set forth in Paragraph 29 of the Verified

Petition.

15. With respect to the allegations set forth in Paragraph 30 of the Verified Petition,

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

the content, meaning and effect thereof and otherwise denies any allegations that are inconsistent

therewith.

16. Respondent admits the allegations set forth in Paragraph 31 of the Verified

Petition.

17. With respect to the allegations set forth in Paragraph 32 of the Verified 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 inconsistent therewith.

18. Respondent admits the allegations set forth in Paragraph 33 of the Verified

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

remainder of the allegations set forth in Paragraph 33 of the Verified Petition.

19. Respondent lacks knowledge or information sufficient to form a belief as to the

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

 -4

20. Respondent denies the allegations set forth in Paragraph 35 of the Verified

Petition.

21. Respondent admits the allegations set forth in Paragraph 36 of the Verified

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

others, possibly BP and Respondent denies the remainder of the allegations set forth in

Paragraph 36 of the Verified Petition.

22. Respondent admits the allegations set forth in Paragraph 37 of the Verified

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

respectfully refers the Court to the written comments for determination of the content, meaning

and effect thereof and otherwise denies any allegations that are inconsistent therewith.

23. Respondent admits the allegations set forth in Paragraph 38 of the Verified

Petition insofar as the Tovvns of Clayton and Orleans have previously considered a wind project

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

a belief as to the remainder of the allegations set forth in Paragraph 38 of the Verified Petition.

24. Respondent admits the allegations set forth in Paragraph 39 of the Verified

Petition.

25. Respondent denies the allegations set forth in Paragraph 40 of the Verified

Petition.

26. Respondent admits the allegations set forth in Paragraph 41 of the Verified

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

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

content, meaning and effect thereof and otherwise denies any allegations that are inconsistent

therewith.
 -5

27. With respect to the allegations set forth in Paragraph 42 of the Verified Petition,

Respondent respectfully refers the Court to the March 2009 submissions by the Planning Board's

engineering consultant for determination of the content, meaning and effect thereof and

otherwise denies any allegations that are inconsistent therewith.

28. Respondent admits the allegations set forth in Paragraphs 43 and 44 of the

Verified Petition.

29. Respondent admits the allegations set forth in Paragraph 45 of the Verified

Petition insofar as involved agencies and the public, including WPEG, submitted written

comments on the SDEIS and Respondent respectfully refers the Court to the involved agency

and public comments on the SDEIS for determination of the content, meaning and effect thereof

and otherwise denies any allegations that are inconsistent therewith.

30. Respondent denies the allegations set forth in Paragraph 46 of the Verified

Petition.

31. With respect to the allegations set forth in Paragraphs 47, 48 and 49 of the

Verified Petition, Respondent respectfully refers the Court to the written comments on the

SDEIS and FEIS for determination of the content, meaning and effect thereof and otherwise

denies any allegations that are inconsistent therewith.

32. Respondent denies the allegations set forth in Paragraph 50 of the Verified

Petition.

33. Respondent admits the allegations set forth in Paragraph 51 of the Verified

Petition.

34. With respect to the allegations set forth in Paragraph 52 of the Verified Petition,

Respondent respectfully refers the Court to the written comments referenced for determination of
 6 - -

the content, meaning and effect thereof and otherwise denies any allegations that are inconsistent

therewith .

35. Respondent admits the allegations set forth in Paragraph 53 of the Verified

Petition insofar as the Planning Board received written comments from a Town of Lyme

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

set forth in Paragraph 53 of the Verified Petition.

36. With respect to allegations set forth in Paragraph 54 of the Verified Petition,

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

the content, meaning and effect thereof and otherwise denies any allegations that are inconsistent

therewith.

37. Respondent admits the allegations set forth in Paragraph 55 of the Verified

Petition.

38. With respect to the allegations set forth in Paragraph 56 of the Verified 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

allegations that are inconsistent therewith.

39. Respondent admits the allegations set forth in Paragraph 57 of the Verified

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 Verified Petition.

40. In response to Paragraph 58 of the Verified Petition, Respondent repeats and re-

alleges the prior paragraphs as if fully set forth herein.

 -7 _

41. Respondent denies the allegations set forth in Paragraph 59 of the Verified

Petition.

42. With respect to the allegations set forth in Paragraphs 60, 61 and 62 of the

Verified Petition, Respondent 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 inconsistent therewith.

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

Verified Petition.

44. In response to Paragraph 66 of the Verified Petition, Respondent repeats and re-

alleges the prior paragraphs as if fully set forth herein.

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

Verified Petition, Respondent respectfully refers the Court to the regulations referenced therein

for determination of their content, meaning and effect and otherwise denies any allegations that

are inconsistent therewith.

46. Respondent admits the allegations set forth in Paragraphs 71 and 72 of the

Verified Petition.

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

Verified Petition.

48. Respondent admits the allegations set forth in Paragraph 75 of the Verified

Petition.

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

Respondent respectfully refers the Court to the regulations referenced therein for determination
 8

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

therewith.

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

Verified Petition.

51. Respondent admits the allegations set forth in Paragraph 79 of the Verified

Petition insofar as WPEG and a Tovvn of Lyme Planning Board member submitted comments 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.

52. Respondent lacks knowledge or information sufficient to form a belief as to the

truth of the allegations set forth in Paragraph 80 of the Verified Petition.

53. With respect to the allegations set forth in Paragraph 81 of the Verified Petition,

Respondent respectfully refers the Court to the regulations referenced therein for determination

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

therewith.

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

Verified Petition.

55. In response to Paragraph 85 of the Verified Petition, Respondent repeats and re-

alleges the prior paragraphs as if fully set forth herein.

56. Respondent admits the allegations set forth in Paragraph 86 of the Verified

Petition.

57. With respect to the allegations set forth in Paragraph 87 of the Verified Petition,

Respondent respectfully refers the Court to the regulations referenced therein for determination
 9

of their content, meaning and 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,

Respondent respectfully refers the Court to the written comments submitted to the Planning

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

allegations that are inconsistent therewith.

59. Respondent denies the allegations set forth in Paragraph 89 of the Verified

Petition.

60. In response to Paragraph 90 of the Verified Petition, Respondent repeats and re-

alleges the prior paragraphs as if fully set forth herein.

61. With respect to the allegations set forth in Paragraph 91 of the Verified Petition,

Respondent respectfully refers to the regulations referenced therein for determination of their

content, meaning and effect and otherwise denies any allegations that are inconsistent therewith.

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

Respondent states that they are conclusions of law for which no responsive pleading is required.

63. Respondent denies the allegations set forth in Paragraph 93 of the Verified

Petition.

64. Respondent admits the allegations set forth in Paragraph 94 of the Verified

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 of the Verified Petition, Respondent

respectfully refers the Court to the regulations referenced therein for determination of their

content, meaning and effect and otherwise denies any allegations that are inconsistent therewith.
 - 10 -

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

Verified Petition, Respondent respectfully refers the Court to the regulations referenced therein

for determination of their content, meaning and effect and otherwise denies any allegations that

are inconsistent therewith.

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

Respondent states that they are conclusions of law for which no responsive pleading is required.

67. Respondent denies the allegations set forth in Paragraph 97 of the Verified

Petition.

AS AND FOR A FIRST AFFIRMATIVE DEFENSE

68. The Verified Petition fails to state a cause of action upon which relief can be

granted.

AS AND FOR A SECOND AFFIRMATIVE DEFENSE

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

Limitations.

AS AND FOR A THIRD AFFIRMATIVE DEFENSE

70. The claims asserted in the Verified Petition are barred by laches, 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 procedures, including, but not limited to, the State Environmental

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

Dated: Albany, New York
December 8, 2010

WHITEMAN OSTERMAN & HANNA LLP

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

TO: Gary Abraham, Esq.

Attorney for Petitioner Wind Power Ethics Group
170 N. Second Street
Allegany, New York 14706

Ruth E. Leistensnider
Attorney for St. Lawrence Windpower, LLC
Nixon Peabody, LLP
677 Broadway, 10 th Floor
Albany, New York 12207
 - 12 -

VERIFICATION

STATE OF NEW YORK

: S S.:
COUNTY OF ALBANY

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

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

Respondent Town of Cape Vincent Planning Board in this mater.

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

knowledge, except those matters stated to be upon information and belief, and as to those

matters, I believe them to be true.

3. The reason why this verification is made by me and not by Respondent is that

Respondent does not have its principal place of business in the County of Albany.

01'6AL •
TODD M. MA HES '

Sworn to before me this

8th day of December 2010.

r-71
(i/Va O\A-/-e1C
Notary Public of the State of New York

Theresa L. Powell
Notary Public, State of New York
Qualified in Rensselaer Coun4f
No. 01PO4931966
Commission Expires June 20. 20 I