A Response to a Readers Comments

I wanted to respond to one  readers comments, that among personal attacks was at least willing to engage on some of the issues I raised.  But it was too long for the comment section to accept.  So I am posting it here.  First I was inflamed when I became aware of the town's statement, so I will at the advice of a good friend try to tone it down as best I can!

First here is the readers comments.  They are listed as anonymous 2:55 under the post with the baby's picture

Anonymous April 24, 2013 at 2:55 PM


"Since you guy have spent any time in a court room or practiced law, I am not sure why you would profess that the town has given up their right for legal action if the process turns out not to be fair or partial.

To dumb it down for you, that’s like saying I thought my husband or wife, was fair and partial when the marriage took place, but now I want a divorce. You are espousing that a divorce cannot be filed, let alone won on the grounds that one or the other turned out to be unfair and/or unreasonable. That is complete and utter hog wash AND YOU KNOW IT. And if you don’t know it, you should keep your mouth shut when it comes to offering legal opinions.

Your line of thinking and the attacks you use to drive them home is very myopic and stated only to support your position. Now that is what I call unfair and unreasonable by any standard.

We all get it, you don’t believe the direction the Town Board is heading down is the right path, and you’re surely entitled to your opinion. But it is unfair and unreasonable to call the Town Board desperate, irrational, naïve, out of touch, or to state that they indulge themselves in an illusion to support their position, just because you think your methods are superior to the direction they are taking.

To quote one of your remarks to Julia Gosier, “These two town boards were duly elected by majority citizens of each community.” It is therefore unfair and unreasonable to viciously attack their character, acumen or their commitment to fight off the onslaught of industrial wind just because they don’t follow your advice or direction. It is therefore evident by your own words that you are a hypocrite. You might want to look in the mirror and ask yourself who is really out of touch with reality here.

I have taken the time to read over your blog and what I see is a narcissistic man desperate to have his opinion heard and prove to the world that he is right. I suspect it is by no coincidence that you ended up living in the town that was one time destined to be the home of Napoleon Bonaparte.

The good news with your blog is, that should the state read it, and that is a big if, they will realize just how astute our town board is and understand that being fair and reasonable is the right thing to do for one of the town’s they represent. If they don’t, then regardless of what you would like us to believe, the Town Board still has the right to litigate the matter in court."


Now my comments back to 2:55

2:55
Thanks for your comments and engaging in the discussion. Now go back and carefully read my post or comments and you will see you mis-interpreted something fundamental about what I and D.L, said.

Your right...I am not a lawyer, but in this wind battle I have had the opportunity to interact with numerous lawyers and their thinking both in the CV wind issue AND here in AZ. That would include making a case with others to one of AG Cuomo's top lawyers and making a detailed case with others to his investigators. It would also include following all the WPEG law suits and the resulting court decisions very carefully and adding information to some of them. That doesn’t make me a legal expert, but I think it is enough to form a reasonable opinion.   But keep in mind that ALL of the CV town officials are not lawyers either yet are making verty critical decsions on our future.  And yes I am aware that they get legal advice.   But that does not mean that advice will always be correct or solid.  Much of this legal stuff is nothing more than a crap shoot! It really comes down to what legal counsel thinks they can get away with.  And we KNOW that often they are just plain WRONG!  But that is not the point.

The point is I NEVER said the town had given up their right to litigation. So your divorce analogy is not an appropriate analogy.  What I said was I believed they had really weakened their potential legal defense if they chose a litigation direction.  I DID NOT say they gave up a right to litigate!

My experience says you can bet any lawyer worth their expensive law degree would drag out this fair and impartial statement against any litigation from the town. Why wouldn’t they? Consistency is one point a good WPEG lawyer one time drove home to us. He made the point he would not go into court with his clients all over the map in their approach!

If you go to court what are you going to go after? Seems to me it would exactly be about the system or rules NOT being fair and impartial in some way as an actual  basis. I mean isn’t that the whole point of going to court anyhow? If you thought everything had been “fair and impartial”…why would you go to litigation in the first place.

But let’s look directly at Art X law. Here is what it says about litigation and what the court can consider under Art X.

"2. The grounds for and scope of review of the court shall be limited to

whether the decision and opinion of the board are:

(a) in conformity with the constitution, laws and regulations of the state and the united states;

(b) supported by substantial evidence in the record and matters of judicial notice properly considered and applied in the opinion;

(c) within the board's statutory jurisdiction or authority;

(d) made in accordance with procedures set forth in this article or

established by rule or regulation pursuant to this article;

(e) arbitrary, capricious or an abuse of discretion; or

(f) made pursuant to a process that afforded meaningful involvement of

citizens affected by the facility regardless of age, race, color,

national origin and income.

3. Except as herein provided article seventy-eight of the civil practice law

and rules shall apply to appeals taken hereunder."


So what does all this essentially say?  Do you see anything about sound and bats and birds or setbacks??? NO. It says that the court is essentially going to look at the Art X PROCESS, or rules if you will,  and if they were applied correctly. That is a limited scope.  Just as the court did in two other WPEG cases, on utilities and the suit against the Edsall planning board’s final acceptance of the Acciona FEIS.

It was about rules regulations and the process, not the noise, birds, setbacks, and all that stuff.  And that is where I think the fatal flaw is in their approach. The way I read this and other court decisions I have been involved in is the litigation is going to have to address flaws in the process and rules. And that is what the appeals court is basically restricted too.

I have two WPEG court decisions right here on my desk that clearly show that the courts aren’t going to get into the detailed arguments of birds, bats, sound and health. It will be all about the process and even the Art X law above says so. So in my view it is very unwise to be up front claiming the process is already fair and impartial.

So if the litigation comes down to the court looking at flaws in the rules and regulations how does it help you if up front you have already declared those rules and that process is fair and impartial?

In their best interest the town instead of bending over backwards  to try to look “reasonable” and appease the State should have just kept quiet on this fair and impartial comment!!  And some probably don't think it is a big deal.  I think it is a REAL BIG DEAL!  Of course this all assumes the town would even go to court. I think it is just as likely they will throw up there hands and say we did everything we could, and it's not worth litigating!  
Note also that line ( e ) about arbitrary and capricious and abuse of discretion. Apparently our board has already consented by their comment  that before they have even set foot inside a court room with an argument that the Art X board will not be arbitrary and capricious, yet they haven't even been handed a decision to know if that is the case or not. That could be a defense to be used. So on one hand you are saying up front the rules were fair and impartial, and then in the next breath you are in court saying it was all arbitrary and capricious?????  Have our town official become so over confident in facing the extremes of political power and money in Albany they can confidently say the rules are FAIR in an attempt to appease those run amuck Albany powers who are running around removing community rights with the overwhelming support of both parties in the NYS legislature????!!!  Wow that is real bravado!!!

A couple other points on your comments. Where does it say that because I voted for elected officials and they are a duly elected board that I am suddenly required to not challenge their decision and do so with a hard nosed approach?  Funny thing that didn't see to matter to WPEG or anyone when I was doing it on their behalf against the previous conflicted govt! Not sure that represents the intent of democracy or even open and transparent govt.  And the scary part is that NO ONE in town except pro wind is challenging any of their decsions.  So you mean to tell me that with an issue as hot, critical and complicated as this , NO ONE has any alternative input other than me and Dave Lamora and a very very few others?  That doesn't even seem rational!
You are also correct that town officials have not taken my advice. In fact that would be the zoning committee completely and willfully ignoring specifically one citizen’s two 25 page detailed papers on my research about the alternative of banning wind development simply because they didn’t like my approach. You want to explain to me how an official town committee targeting and marginalizing one citizen adds up to the promise of open govt. democracy, and THEM being FAIR and IMPARTIAL!!!  Maybe they should not be so quick to make a judgment on what is or isn't fair and impartial!  In that case they were NEITHER!
And you avoided the real  question. 

Do you think that a system that was lobbied by inordinate corporate power and money and  influenctial political interests to  remove certain critical community rights is a system that is somehow "fair and impartial y any stretch of the imagination?  

THAT is the real question and the root of my gripe.  It is just beyond belief that a town that has been directly  stripped of it's critical right to create and enforce it's own laws by a big brother govt. would even consider saying such a thing and so many town officials would consent to sign such a declaration!

It seems that is just significantly disrespecting the vast majority of people, even who  support the current CV govt. but also clearly realize that Art X has been anything but fair  and impartial since it's inception. 

And let me give you a concrete example of what I mean.  At the Oct 23rd 2012  meeting the many people that turned out to protest BP and Art X and support the CV and Lyme officials against BP and Art X , they had a huge sign in protest of Cuomo and Art X...

...and it sure as hell did not say we thought the Art X rules were FAIR AND IMPARTIAL!!!

I was a particpant in that protest even with my objections to our town board's direction on wind zoning.  Had I known the town officials would do an about face and declare the Art X rules we were so vehemently protesting were  fair and impartial, then I would not have wasted my time.

To me if nothing else that is a siginificant slap in the face to people who clearly recognized Art X as a disasterous big govt over reach that could ultimately destroy our community.

It seems to me that with the town's unresearched and arbitrary support of an industrial solar project brought to us by BP of all companies, and now a declaration that the Art X rules are fair and impartial, somewhere they have come of the rails in their efforts to appear "reasonable"!
Their statement may have appearred reasonable to Albany and was just wht Albany wanted to hear.  But it was NOT reasonable to others...many who are probably too afraid  to speak up because of the trashing they see I get for any challenge to the current govt.