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HAS MEL LISTON REALLY GAINED PARTNERSHIP WITH BARTOSZEK TO DEVELOP BIOMASS? TOM? YOUR THOUGHTS?
...loooooooooong gone?
"Do you know if Bart ever fulfilled the conditions of the grant? My bets are he never actually got the grant money given the foul up in Ellicotteville."
He managed to snag $100k before they caught on.
barty is no spring chicken to reorgs, he's convinced government to conditionally grant him a million + grant under the facade of a different entity. Since finding that out early on and talking with the original Ellicotteville mortgage holder, Northrup, I knew very well what type of personality all of us have been dealing with and considered him an extreme threat to the city I love and the investors who seemed to become his prey. I'm glad he's no longer part of the equation and satisfied that biomass is moving forward in our city provided the applicant follows the game map.
if anyone could help you with that bridge, a sugar daddy with bart's help could. don't forget barty has, in the past, transformed out of receivership before with a new name and a new grant. The only difference this time is a more tainted back ground; significantly more tainted and a government that has been had time and time again. On second thot forget about a sugar daddy, we're talking about a GREAT GREAT grant daddy.
under a log deep in the jungle surrounded by snakes who love him?
doesn't that require a good reference these days?
He was certain he gave me mine and I thank him for that.
Blaming the suspension on the SEC? Didn't we hear just the other day that some 300+ pink sheet companies joined the suspension list? You're saying the SEC are the bad guys? My thinking is that the SEC certainly has viable reason(s) and wouldn't begin to risk ruining a stock's chance at success unless they KNEW suspension was warranted.
Had I invested a penny or a million on the day I first viewed this site, I'd be even after watching the roller coaster ride. What a ride though. Glad a rode for free. ;)
And the winner of such a suit with the defense's net worth easily below 0 will be the attorneys involved within the suit. A better move might be to invest your money elsewhere or joining Digi with some gold panning. ;)
Yet most would agree some are a Pro at being a Con.
The main difference between a Con and a Pro is INTENT.
Interesting to note that abutters to the "john st" location way back in 07 described what they perceived the business to be as follows:
http://en.wikipedia.org/wiki/Boiler_room_%28business%29
and will all of the New England states provide LLEG with million dollar grants at about the same time? I'm waiting with baited breath as I can tell this will happen at any moment now, won't it?
I'd give him a d- at best, sorry. All one needed to do is delve into contacts he'd made in the past to know he pulled the wool squarely over many vendors eyes and in particular the State of NY by obtaining a grant from NY coming out of receivership. When NY caught on to this, they froze the grant. I fought tooth and nail to keep this guy out of my town while supporting the idea of having a biomass plant open in town. Why would anyone do that if the guy had the slightest benefit to offer a town in dire straits. Because this guy took many people to the cleaners, before this stock began its recent downward spiral.
Did ANY ONE of you investors EVER contact the town of Ellicotteville, Mr. Northrup, the holder of the Ellicotteville mortgage, the attorney's and vendors who didn't get paid along the way? A few phone calls in the first two weeks of dealing with the company convinced me why Bartoszek wasn't one to ever look anyone in the eye who knew these details. And, as most con men would, he called those of us who knew facts, liars and had the support of most of you investors. Truly sad.
"As in Mikey earned their trust? ;)"
As in Barty captured their trust and held it hostage until it was worth pennies on a dollar.
It's truly more personal to talk with vendors who didn't receive payment as vendors, though maybe not enthusiastic much like lawyers that weren't paid, are full of energy when they speak of Mike and more than willing to speak their mind.
Great euphemism for two wrongs don't make a right. Perhaps the Dale Carnegie approach to letting a snake know he's been caught in the grass?
I think they may be inundated with mandated transparency reporting of the facts to the SEC that has taken priority away from their pledge of allegiance to their faithful investors. The foul smell of something wrong began in 1999. ;)
WESTERN DISTRICT OF NEW YORK
LAIDLAW ENERGY AND
ENVIRONMENTAL, INC.,
Plaintiff,
v. DECISION AND ORDER
08-CV-32-S
TOWN OF ELLICOTTVILLE, NEW YORK,
Defendant.
I. INTRODUCTION
In this action, Plaintiff asserts claims under the Fifth and Fourteenth Amendmentsof the United States Constitution pursuant to 42 U.C.S. § 1983. Plaintiff’s claims arise outof Defendant’s decision to deny Plaintiff’s site modification application and classify theoperation of a power generation facility a non-conforming use under local zoning laws. Plaintiff seeks a declaratory judgment that Plaintiff did not abandon or vacate its powergeneration facility, an order declaring the denial of its application unconstitutional, an orderdirecting Defendant to approve the application, and money damages in the amount of$10,000,000, in addition to attorneys’ fees and litigation costs. Presently before this Courtis Defendant’s Motion to Dismiss Plaintiff’s complaint in its entirety. For the reasonsdiscussed below, Defendant’s motion to dismiss is granted.1
1In support of its Motion to Dismiss, Defendant filed the Declaration of Ivan E. Lee, Esq.; a
Memorandum of Law; and the Declaration of Daniel A. Spitzer, Esq. with attached Exhibits and Reply
Memorandum. (Docket Nos. 5, 6, 22.)
In opposition to Defendant’s Motion to Dismiss, Plaintiff filed the Declaration of James P. Evans,
Esq.; separately filed Exhibits; a Response Memorandum, twice submitted due to a filing defect; an
Amended Response Memorandum; the Declaration of Michael B. Bartoszek; and the Affidavit of David C.
Crowther, Esq. (Docket Nos. 12, 13, 14, 15, 16, 19, 20.)
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II. BACKGROUND
A. Facts
In adjudicating Defendant’s motion to dismiss, this Court assumes the truth of thefollowing factual allegations contained in the complaint. See Hosp. Bldg. Co. v. Trs. of RexHosp., 425 U.S. 738, 740, 96 S. Ct. 1848, 1850, 48 L. Ed. 2d 338 (1976); see alsoHamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton Coll., 128 F.3d 59, 63 (2d Cir. 1997).
Plaintiff, Laidlaw Energy and Environmental, Inc. (“Laidlaw”), is a corporationorganized and maintained under the laws of New York, with its principal offices in NewYork County, New York. (Complaint (“Comp.”), Docket No. 1, ¶ 5.) Defendant, the Townof Ellicottville (“Town” or “Ellicottville”), is a duly constituted political subdivision of NewYork, with its principal offices in the Town of Ellicottville, Cattaraugus County, New York. (Id. ¶ 6.) The parties’ dispute centers around a facility (the “Co-Generation Plant”) locatedinside Ellicottville, along Route 219 North. (Id. ¶ 9.) The facility is, and was at all relevanttimes, composed of two principal components: First, lumber kilns that prepare hardwoodlumber for use in furniture production; and, second, co-cycle combustion turbine and steamturbine generators working in conjunction to produce heat and electricity. (Id. ¶ 15.) Thegenerated electricity powered the lumber kilns, while the excess electricity was sold to NewYork’s electric power grid. (Id. ¶ 5.)
Throughout its existence, the Co-Generation Facility has been owned and controlledby various parties and used a variety of fuels to produce the heat and electricity necessaryto keep the lumber kilns active. From 1990 to 1999, the Co-Generation Facility was ownedand operated by Ellicottville Energy, Inc. (“EEI”), a company owned by the Northrup family. (Id. ¶ 14.) Laidlaw alleges that throughout its ownership, EEI made various changes to the
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Co-Generation Facility, some authorized, others not. (Id. ¶ 18.) For example, from 1994-1997, EEI added, without express authorization, a biomass gasification system, fueled bythe combustion of wood chips delivered to the facility. (Id. ¶ 20.) This addition alsofeatured a 60-foot-tall smoke stack. (Id.) Later, in 1998, EEI applied for, and was granted,a zone change to allow biomass combustion by wood pellets. (Id. ¶ 21.) Within a year,however, EEI dismantled that system. (Id.)
Laidlaw purchased the facility in 1999. (Id. ¶ 25.) Following the purchase, Laidlawapplied for, and was granted, a permit to expand the Co-Generation Facility’s kilnequipment. (Id. ¶ 26.) However, in August 2002, rising natural gas prices made continuedoperation of the Co-Generation Facility cost-prohibitive. (Id. ¶ 27.) On August 29, 2002Laidlaw’s facility was placed in receivership, until new investors helped Laidlaw purchasea new round of bonds in May 2004. (Declaration of Ivan E. Lee. In Support of the Townof Ellicottville’s Motion to Dismiss (“Lee Decl.”), Docket No. 5, Ex. A; Ex. A to Declarationof James P. Evans, Esq., Docket No. 14.) Both during and after the receivership period,Laidlaw “temporarily curtailed its operation of the Co-Generation Facility,” by reducing thefacility’s staff to a single individual responsible for equipment maintenance. (Comp. ¶¶ 28-29.)
The search for affordable fuel sources led Laidlaw to obtain a $1 million grant fromNew York State to convert the facility from the use of natural gas over to biomass fuel. (Id.¶ 31.) This grant was contingent on Laidlaw’s continuing operation of the Co-GenerationFacility. (Id.)
In October 2004, Laidlaw applied to the Ellicottville Planning Board for a ModifiedSite Plan Approval (“MSPA”) to modify the facility to accommodate biomass fuel. (Id. ¶
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33.) Laidlaw also initiated an environmental impact review pursuant to the New York StateEnvironmental Quality Review Act (“SEQRA”). (Id. ¶ 34.) Ellicottville assumed “leadagency status” in the SEQRA review, and thus became responsible for issuing a FindingsStatement for Laidlaw’s project. (Id. ¶ 37.)
In considering Laidlaw’s MSPA, Ellicottville retained special counsel to reviewLaidlaw’s application and use of the Co-Generation Facility’s site. (Id. ¶ 41.) On the basisof that review, the Town determined that conversion of the facility to biomass fuel wouldconstitute an unauthorized expansion of a prior non-conforming use. (Id. ¶ 43.) To reachthis decision, the Town found that Laidlaw’s prior operation of the facility using natural gaswas a permitted “prior non-conforming use.” This meant that, although Ellicottville’s zoningcodes did not permit Laidlaw’s power production, because the facility began operatingbefore those codes came into effect, Laidlaw could continue generating electrical power. (See id. ¶ 42.) However, in the Town’s view, even this prior use was no longer permittedbecause Laidlaw had “abandoned” or “vacated” the facility and could not now return andresume an activity in contravention of the Town’s zoning codes. (Id. ¶ 44.) The Towneffectively denied Laidlaw’s MSPA and required Laidlaw to apply for various variances andspecial use permits to restart the Co-Generation Facility as a natural gas fueled plant. (See id. ¶¶ 45-46.) Laidlaw appealed the Planning Board’s decision to the Town ZoningBoard of Appeals (“ZBA”), which upheld the Planning Board’s decision on June 11, 2007. (Id. ¶ 49.)
Thereafter, the Planning Board completed its SEQRA review and issued a SEQRAFindings Statement on October 18, 2007. (Id. ¶ 37.) In that statement, the Planning Boarddetermined that Laidlaw’s project would pose significant, adverse, and unmitigable
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environmental risks and denied Laidlaw’s requested biomass fuel conversion. (Id. ¶¶ 66,72.)
In both its MSPA and SEQRA decisions, the Planning Board found that Laidlawcould continue operation of the kilns, notwithstanding the fact that these kilns require theenergy and heat produced by the facility’s combustion and steam turbine generators. (Id.¶¶ 50, 68.)
Plaintiff now seeks a declaratory judgment finding that Laidlaw did not abandon theCo-Generation Facility, as well as an order declaring that the Town’s denial of Laidlaw’sMSPA was unconstitutional, and directing the Town to approve that application. Plaintiffalso seeks money damages to recoup losses it incurred as a result of the Town’s denial.
B. Procedural History
On June 11, 2007, Laidlaw filed an Article 78 proceeding in New York State Courtseeking review of the ZBA’s June 2007 decision affirming the Planning Board’sdeterminations. (Lee Decl., Ex. I.) That matter is ongoing. (Defendant’s Memorandumof Law Supporting Defendant’s Motion to Dismiss, Docket No. 6, 5.)
On November 16, 2007, Laidlaw commenced a second Article 78 proceeding inNew York State Supreme Court to challenge the Planning Board’s SEQRA FindingsStatements. The court dismissed that action on March 10, 2008 on the basis that thePlanning Board’s decision was neither arbitrary nor an abuse of discretion. (Lee Decl., Ex.L.)
Plaintiff commenced the present action on January 14, 2008, by filing a complaintin the United States District Court for the Western District of New York. Defendantoriginally filed a motion to dismiss Plaintiff’s complaint in its entirety on March 26, 2008. 5
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Defendant then filed a corrected Motion to Dismiss on March 27, 2008.
III. DISCUSSION
A. Legal Standard
Rule 12(b)(6) allows dismissal of a complaint for “failure to state a claim upon whichrelief can be granted.” Fed. R. Civ. P. 12 (b)(6). Federal pleading standards are generallynot stringent: Rule 8 requires only a short and plain statement of the claim. Fed. R. Civ.P. 8(a)(2). But the plain statement must “possess enough heft to show that the pleader isentitled to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,127 S.Ct. 1955, 1966, 167L.Ed.2d 929 (2007).
When determining whether a complaint states a claim, the court must construe itliberally, accept all factual allegations as true, and draw all reasonable inferences in theplaintiff’s favor. ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007);Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir. 2008). Legal conclusions, however, are notafforded the same presumption of truthfulness. See Ashcroft v. Iqbal, 129 S.Ct. 1937,1949, 173 L. Ed. 2d 868 (2009) (“[T]he tenet that a court must accept as true all of theallegations contained in a complaint is inapplicable to legal conclusions.”)
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. at 1945 (quotingTwombly, 550 U.S. at 570). Labels, conclusions, or “a formulaic recitation of the elementsof a cause of action will not do.” Twombly, 550 U.S. at 555. Facial plausibility is presentwhen the factual content of the complaint allows for a reasonable inference that thedefendant is liable for the misconduct alleged. Iqbal, 129 S.Ct. at 1949. The plausibilitystandard is not, however, a probability requirement; the pleading must show, not merely
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allege, that the pleader is entitled to relief. Id. at 1950; Fed. R. Civ. P. 8(a)(2).
A two-pronged approach is thus used to examine the sufficiency of a complaint. First, statements that are not entitled to the assumption of truth — such as conclusoryallegations, labels, and legal conclusions — are identified and stripped away. See Iqbal,129 S.Ct. at 1950. Second, well-pleaded, non-conclusory factual allegations are presumedtrue and examined to determine whether they “plausibly give rise to an entitlement torelief.” Id.2
B. Plaintiff’s Fourteenth Amendment Due Process Claims
The Fourteenth Amendment provides, in pertinent part, that “[n]o State shall . . .deprive any person of life, liberty, or property without due process of law.” U.S. Const.amend. XIV. Due process claims fall into two broad categories– substantive andprocedural. A substantive due process claim is based upon the deprivation of aconstitutionally protected life, liberty, or property interest. See B.D. v. DeBuono, 130 F.Supp. 2d 401, 431 (S.D.N.Y. 2000). A procedural due process claim is based upon thedeprivation of a protected life, liberty, or property interest, without notice and an opportunityto be heard. Id. at 432-33. The threshold issue under either claim, “is always whetherplaintiff has a property or liberty interest protected by the Constitution.” Narumanchi v. Bd.of Trs. of Conn. State Univ., 850 F.2d 70, 72 (2d Cir. 1988).
2Although seemingly inconsistent with the command to treat well-pleaded factual allegations as
true, this plausibility inquiry appears to include consideration of whether more likely or alternative
explanations for the complained-of conduct exist. See, e.g., Iqbal, 129 S.Ct. at 1951-52 (“But given more
likely explanations, [the allegations] do not plausibly establish this purpose.”); Twombly, 550 U.S. at 567-
68 (finding that plaintiff’s allegations were not suggestive of antitrust conspiracy in the face of an “obvious
alternative explanation” for the allegations in the complaint).
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1.Substantive Due Process Claims
Plaintiff claims it was deprived of a protected property interest in violation of itssubstantive due process right by a vague and ambiguous zoning ordinance, as well as bythe Planning Board’s and ZBA’s arbitrary and capricious decisions. Defendant seeksdismissal of these claims because Plaintiff does not have a valid property interest andfailed to allege arbitrary or irrational conduct.
“In assessing a substantive due process claim in the context of land use regulation,this Court is always mindful of the general proscription that federal courts should notbecome zoning boards of appeal to review nonconstitutional land[-]use determinations bythe [C]ircuit’s many local legislative and administrative agencies.” Crowley v. Courville, 76F.3d 47, 52 (2d Cir. 1996) (quoting Zahra v. Town of Southold, 48 F.3d 674, 679-80 (2dCir. 1995)) (internal quotation marks omitted). Adjudicating a party’s substantive dueprocess claim in the context of a land use regulation is a two-step process. Id. First, aplaintiff must show that he had a valid property interest within the meaning of theConstitution. Id. Second, a plaintiff must show that the defendant’s actions were arbitraryor irrational. Id. Because Plaintiff has failed to meet either requirement, Defendant’sMotion to Dismiss will be granted as to Plaintiff’s substantive due process claims.
First, Plaintiff has failed to identify a property interest. Property interest claimsinvolving land-use due process disputes fall into two categories. Osborne v. Fernandez,No. 06-CV-4127 (CS)(LMS), 2009 WL 884697, at *33 (S.D.N.Y. Mar. 31, 2009). First, alandowner may claim that he has a “due process right to the existing zoning of [his or her]land.” Id. (quoting DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 129-30 (2d Cir.1998)). Second, a landowner may claim “a due process right to the issuance of a permit
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from a local municipal authority under the current zoning laws.” Id. (citing DLC Mgmt.Corp., 163 F.3d at 132). Plaintiff claims property rights in both categories.
Concerning the first category, Laidlaw alleges that it had a property interest in itszoning classification. (Comp. ¶ 89.) A landowner has no property interest in his existingzoning status unless his rights have become “vested.” DLC Mgmt. Corp., 163 F.3d at 130. A landowner’s rights become vested where the landowner made substantial expendituresand undertakes substantial construction prior to enactment of the more restrictive zoningordinance. DC3, LLC v. Town of Geneva, No. 10-CV-6084L, 2011 WL 1449040, at *2(W.D.N.Y. Apr. 12, 2011). Laidlaw claims it made such an investment by purchasing theCo-Generation Facility from EEI in 1999 in reliance of the site’s zoning status. Whetherthis suffices to vest Laidlaw’s rights is irrelevant, however, because the Planning Board,in rejecting Laidlaw’s MSPA, did not change the site’s zoning status. Instead, it recognizedthat the facility’s power production had always been in violation of the current zoning code,but that because this activity commenced prior to the ordinance, it was a permitted non-conforming use. Even if Laidlaw had a property interest on the basis of its expenditures,no change to that zoning status was made, and thus none of Laidlaw’s substantive dueprocess rights were implicated.
Concerning the second category, Laidlaw alleges a property interest in the approvalof its MSPA, as well as approval under SEQRA. (Comp. ¶¶ 88, 91.) The Second Circuitapplies a “clear entitlement” analysis to such claims. Clubside, Inc. v. Valentin, 468 F.3d144, 152 (2d Cir. 2006) (citing Walz v. Town of Smithtown, 46 F.3d 162, 168 (2d Cir.1995)). The analysis “focuses on the extent to which the deciding authority may exercisediscretion in arriving at a decision, rather than on an estimate of the probability that the
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authority will make a specific decision.” Id. (quoting Zahra, 48 F.3d at 680) (emphasis inoriginal).
There is no dispute that Laidlaw required approval by the Planning Board beforeconverting the Co-Generation Facility to biomass fuel. Laidlaw must therefore show thatapproval was either certain or exceedingly likely. See Cathedral Church of The Intercessorv. Incorporated Village of Malverne, 353 F. Supp. 2d 375, 384 (E.D.N.Y. 2005) (noting thatplaintiff failed to “adequately ple[a]d in their complaint that there was a very stronglikelihood that their [proposal] should have been approved as it was submitted”). Plaintiffhas failed to do so. Laidlaw has not alleged that there were mandatory town codeprovisions that required the Planning Board to grant Plaintiff’s MSPA. Similarly, Laidlawhas not identified anything making SEQRA approval a virtual certainty. To the contrary,this Court finds that the Planning Board properly had discretion, and used it, to denyLaidlaw’s MSPA. See generally N.Y. Town Law § 274-a(2); Home Depot, U.S.A. v. TownBd. of Town of Hempstead, 881 N.Y.S.2d 160, 162 (N.Y. App. Div. 2009) (“A town boardis authorized to review and approve site plans which describe proposed land use elements. . . .”) Likewise, the Board properly applied its discretion under SEQRA. See generallyCustom Topsoil, Inc. v. City of Buffalo, 785 N.Y.S.2d 637, 639 (N.Y. App. Div. 2004) (“[I]tis well established that, where a municipal officer has a latitude of choice that takes intoaccount the kinds of environmental concerns that may be raised during the SEQRAprocess, the official’s function is discretionary . . . .”); Lucas v. Planning Bd. of Town ofLaGrange, 7 F. Supp. 2d 310, 324 (S.D.N.Y. 1998) (town’s failure to follow SEQRArequirements does not trigger mandatory procedures). The Board’s exercise of discretionprecludes Plaintiff from establishing a property right in the approval of its proposal under
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either the MSPA or SEQRA. See Osborne, 2009 WL 884697, at *34 (noting that “[t]hequantum of discretion a local zoning authority has to approve or reject a request for apermit is almost always dispositive of such due process claims”).3 Consequently, Laidlawhas failed to plead a substantive due process violation.
Second, even if Laidlaw had a relevant property interest, it could not succeed on itssubstantive due process claims because none of the actors it identifies acted in anarbitrary and capricious manner. “Substantive due process standards are violated only byconduct that is so outrageously arbitrary as to constitute a gross abuse of governmentalauthority.” Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999) (citing Countyof Sacramento v. Lewis, 523 U.S. 833, 118 S. Ct. 1708, 1716, 140 L. Ed. 2d 1043 (1998)). Even a State’s arbitrary violation of its own zoning regulations does not necessarily rise tothe level of outrageously arbitrary. Cathedral Church of The Intercessor, 353 F. Supp. 2dat 385.
Laidlaw describes Defendant as engaging in an elaborate conspiracy to makeworthless Laidlaw’s investment in the Co-Generation Facility. It is alleged that Ellicottvillesupported Laidlaw’s plans until the Town began to fear that those plans might “detract[]from the Town’s efforts to evolve into a fashionable ski resort.” (Comp. ¶ 39.) From thenon, Defendant allegedly manipulated zoning ordinances to force a fire sale of the facilityinto the hands of the Northrup Family, “a prominent and politically active family in theTown,” who previously owned the facility through EEI. (Id. ¶ 14.)
3The Court notes that Laidlaw’s claimed property interest could also be defeated because of
uncertainty in the underlying meaning of the relevant zoning codes. See Natale v. Town of Ridgefield, 170
F.3d 258, 263 (2d Cir. 1999) (noting that “if uncertainty as to the law did not preclude recognition of a
federally protectable property interest, permit claimants would regularly be entitled to present to federal
courts their disputes concerning the interpretation of local and state land use regulations”).
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Whatever the truth of Ellicottville’s intentions, this Court need only consider whether the Town’s decisions and interpretations of relevant statutes was so outrageous as to bea gross abuse of government authority. Here, the Planning Board, relying on the opinionsof its special counsel, found that the Co-Generation Facility’s production of electricity wasa non-conforming use. The Town then determined that Laidlaw had abandoned or vacatedthe facility, and therefore would require new permits and variances to restart its operations. Neither of these decisions can be said to “shock[] the conscience” or violate “decencies ofcivilized conduct.” Watanabe Realty Corp. v. City of New York, No. 01 Civ. 10137 (LAK),2003 U.S. Dist. LEXIS 11617, at *42 (S.D.N.Y. July 10, 2003).
In Harlen Associates v. Incorporated Village of Mineola, the court rejected achallenge to the denial of a special use permit for a convenience store. 273 F.3d 494, 503-04 (2d Cir. 2001). The court, in holding that plaintiff had failed the second prong of hissubstantive due process claim, noted that defendant “had legitimate interests which couldrationally be furthered through the denial of [plaintiff’s] application.” Id. at 505. Here, theZBA determined that Laidlaw’s proposed changes would exceed community standards. The ZBA also, in interpreting whether Laidlaw had abandoned its facility, noted that the Co-Generation Plan was closed, as evidenced by the fact that the natural gas turbine and tworeciprocating engines were removed to on-site storage areas. The ZBA also consideredLaidlaw’s argument that the kilns could not function without the power generator, butconcluded that the proposed size of the modified plant was out of line with the kilns’ needs. Given this extensive analysis, backed by both case law and a factual record, the ZBA’sdecision is a far cry from the gross abuse necessary to constitute a constitutional violation. Crowley, 76 F.3d at 52 (finding arbitrary or irrational behavior only where government acts
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with no legitimate reasons for its decision).
Laidlaw’s arguments to the contrary are based largely on its disagreement with theTown’s conclusions. Laidlaw points to the fact that it maintained an employee on staff tomaintain the facility, that it publicized its intention to reopen the facility, and to its copioussubmissions addressing all possible concerns. Nevertheless, as the court in HarlenAssociates noted, “[t]he Board may or may not have made the right decision on the meritsof the application, but that issue does not raise a federal question.” 273 F.3d at 505 (citingYale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 58-59 (2d Cir. 1985)).
Even were the standard less stringent, the ZBA’s decision would not be out of line. Simply put, Laidlaw allowed the facility to enter receivership. Laidlaw ceased producingelectricity because it deemed it financially worthwhile. The facility has remainedinoperative since 2003. In light of all this, the ZBA’s determination that Laidlaw abandonedor vacated the facility can hardly be called arbitrary.
Laidlaw also contends, however, that the Town’s ordinance was vague andambiguous. Laidlaw argues that “n labeling Laidlaw’s co-generation component as anillegal non-conforming use and prohibiting its continuation, the Town interpreted a sectionof its Zoning Ordinance in . . . a manner which was not readily apparent . . . and whichcould not have been reasonably anticipated by Laidlaw.” (Comp. ¶ 81.) Laidlawspecifically challenges, as unconstitutionally vague, Article 10 of the Town’s zoning code,which states that a permitted non-conforming use comes to an end where the ownerdiscontinues the use through vacancy or abandonment. (Id.; Plaintiff’s AmendedMemorandum of Law in Opposition to Defendant’s Motion to Dismiss (“Pl.’s Am. Mem.”),Docket No. 19, 21.) “A statute violates due process if its ‘prohibitions are not clearly
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defined.’” Cunney v. Bd. of Trs. of Village of Grand View, 675 F. Supp. 2d 394, 398(S.D.N.Y. 2009) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294,33 L. Ed. 2d 222 (1972)). However, where a civil code of the type at issue is in dispute,the rigidity of the vagueness doctrine is relaxed. See id. (citing Arriaga v. Mukasey, 521F.3d 219, 223 (2d Cir. 2008)). In resolving a vagueness challenge, a court must determinewhether a plaintiff was put on adequate notice of the behavior required under therespective ordinances, and whether those ordinances encourage arbitrary enforcement. Cunney, 675 F. Supp. 2d at 399.
Plaintiff cites the decision in People v. Woodbury for support. In that case a zoningprovision was held unenforceable for vagueness where it stated that a nonconforming useabandoned or discontinued for 24 consecutive months could not be re-established as anonconforming use. 97 Misc. 2d 1035, 413 N.Y.S.2d 101 (N.Y. Co. Ct. 1979). Unlike theambiguity alleged here, the ordinance in Woodbury was vague, not because of theunderlying word “abandoned,” but because it was unclear whether a nonconforming tavern,reopened within 24 months of the effective date, was prohibited. Id. at 1037.
The Court finds the case of New Venture Realty, Ltd. v. Fennell, 620 N.Y.S. 2d 99,far more instructive. In that case, plaintiff purchased property in a residentially-zoned areathat had previously been used for the manufacture of wallpaper, a nonconforming use. Id.at 100. After plaintiff acquired the property, the town’s planning board notified it that thenonconforming use had been terminated because no manufacturing had taken place forover one year. Id. Plaintiff challenged the decision on the ground that the propertycontinued being used for the sale and storage of wallpaper. Id. The court upheld thetermination, finding that the board’s interpretation of “light manufacturing” as requiring
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actual manufacturing was rational. Id. at 101. As in New Venture Realty, Ltd., the statutehere similarly precludes continuation of a nonconforming use after a certain period. Moreover, as in New Venture Realty, Ltd., the Planning Board interpreted what activity wasneeded to sustain a nonconforming use. As this Court has already explained, the ZBA’sdecision that Plaintiff abandoned the Co-Generation Facility was entirely rational. “[I]f astatute has a core meaning that can reasonably be understood, then it may validly beapplied to conduct within the core meaning.” Cunney, 675 F. Supp. 2d at 400 (quotingBroche v. Westchester County, 658 F.2d 47, 51 (2d Cir. 1981)). Laidlaw should haveknown that closing the facility for several years could have permanent effects on what itwould be allowed to use the facility for in the future. Cf. Town of Johnsburg v. Town ofJohnsburg Zoning Bd. of Appeals, 751 N.Y.S.2d 85, 89-90 (N.Y. App. Div. 2002) (opiningthat discontinuance ordinance challenged as vague for failing to set time limits to enforceprovisions would be upheld under standard of reasonable certainty).
Turning to Plaintiff’s SEQRA-related allegations, the Court notes that a New YorkState Supreme Court has already found that Defendant’s behavior was neither arbitrarynor capricious in the context of an Article 78 proceeding. (Lee Decl., Ex. L.) This Courtwill not second-guess that state court’s findings. See Fastag v. Kelly, No. 04 CIV9037SAS, 2005 WL 1705529, at *6 (S.D.N.Y. July 19, 2005) (applying issue preclusion toNew York court’s Article 78 ruling on issue of arbitrary and capricious conduct). This Courtis satisfied that Defendant’s actions in regards to Laidlaw’s SEQRA application did not riseto the level of shocking, abusive, capricious, or arbitrary behavior necessary to constitutea substantive due process violation.
Having concluded that Laidlaw failed to demonstrate both a protected property
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interest and arbitrary and irrational behavior, Defendant’s Motion to Dismiss Plaintiff’ssubstantive due process claims will be granted.
2.Procedural Due Process Claims
Plaintiff claims it was deprived of procedural due process by the ZBA’s decisionregarding Plaintiff’s MSPA and by the Planning Board’s SEQRA Findings Statement. Defendant seeks dismissal of these claims because Plaintiff was deprived of no right,privilege or immunity, and because Plaintiff was not deprived of an opportunity to be heard.
To prevail on a procedural due process claim, a plaintiff must first establish that adefendant’s actions deprived her of either a liberty or property interest recognized by law. Bd. of Regents v. Roth, 408 U.S. 564, 569, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972);Gagliardi v. Village of Pawling, 18 F.3d 188, 193 (2d Cir. 1994). As already discussed,Laidlaw has failed to allege a protected property interest, and thus its procedural dueprocess claims face dismissal. Additionally, Laidlaw’s procedural due process claims aresubject to dismissal on other grounds. “Generally speaking, a plaintiff’s procedural dueprocess rights are satisfied when a municipality’s decision denying a request is precededby notice and a hearing, and followed by a written explanation.” Palmer v. City of SaratogaSprings, 180 F. Supp. 2d 379, 386 (N.D.N.Y. 2001) (citing Vertical Broad., Inc. v. Town ofSouthampton, 84 F. Supp. 2d 379, 391 (E.D.N.Y. 2000)).
Here, as to both the ZBA’s and the Planning Board’s decisions, Plaintiff wasprovided with all three, and actively participated in each proceeding. Before the ZBA,Plaintiff argued that its proposed modification of the Co-Generation Facility was aconforming, special permitted use, that the co-generation plant was subordinated andaccessory to the dry kiln operation, and that it never discontinued use of the facility. (Lee
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Decl., Ex. H, p. 5, 15, 21) Plaintiff submitted evidence in support of its arguments, and theZBA clearly listed all exhibits it relied on in making its decision. (See, e.g., id., p. 7.) Similarly, the Planning Board, in conducting its SEQRA review, considered extensiveexpert information submitted by Laidlaw. It issued a 72 page written decision of its findingsand decision. (Lee Decl., Ex. J.) In it, the Planning Board determined that while theproposed site plan for the lumber drying kilns could go ahead, the proposed biomassconversion would entail adverse environmental effects that could not be avoided orminimized by mitigating measures. The Board specifically pointed to the increased ratesof nitrogen oxide and carbon monoxide emissions under Laidlaw’s proposal. The Boardalso found the proposed project inconsistent with the Town’s Comprehensive Plan and thegeneral purposes of the Town’s zoning codes. Finally, Judge Frank A. Sedita, Jr., in hisMarch 10, 2008 decision on Laidlaw’s second Article 78 proceeding, specificallydetermined that “[t]he board took the requisite hard look at the record and made areasoned elaboration of the basis for its decision meeting all the SEQRA requirements.” (Lee Decl., Ex. L, 39:14-18.)
Although Laidlaw variously alleges that the hearings were “insufficient and illusory”and constituted “nothing more than a sham proceeding to reach a pre-determinedoutcome,” Laidlaw’s conclusory allegations do not defeat Defendant’s Motion to Dismisswhere the evidence outlined above clearly shows that Laidlaw received, and participatedin, hearings concluded by written decisions. See Palmer, 180 F. Supp. 2d at 387.
Consequently, Defendant’s Motion to Dismiss Plaintiff’s procedural due processclaims will be granted.
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C.Plaintiff’s Fifth Amendment Equal Protection Claim
The Fourteenth Amendment provides that no state “shall deny to any person withinits jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. It is“essentially a direction that all persons similarly situated be treated alike.” City of Cleburnev. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S. Ct. 3249, 3254, 87 L. Ed. 2d 313(1985). Laidlaw has argued that it was “selectively treated compared with others similarlysituated.” (Pl.’s Am. Mem. 22.) Where plaintiffs allege selective enforcement, they mustdemonstrate “(1) that they were treated differently from other similarly situated individuals,and (2) that such differential treatment was based on impermissible considerations suchas . . . malicious or bad faith intent to injure the plaintiff.” Harlen, 273 F.3d at 499.4 TheSecond Circuit has noted that “cases predicating constitutional violations on selectivetreatment motivated by ill-will, rather than by protected-class status or an intent to inhibitthe exercise of constitutional rights, are lodged in a murky corner of equal protection lawin which there are surprisingly few cases and no clearly delineated rules to apply.” Bizzarrov. Miranda, 394 F.3d 82, 86 (2d Cir. 2005) (citing LeClair v. Saunders, 627 F.2d 606, 608(2d Cir. 1980)).
As already discussed, Plaintiff’s complaint is filled with allegations regarding the
4The Court has considered whether Laidlaw’s equal protection claims actually fall under a “class
of one” theory. To succeed on a “class of one” claim, the plaintiff must prove that (1) he has been
intentionally treated differently from others who are similarly situated to him, and (2) that there is no
rational basis for the difference in treatment. See Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120
S. Ct. 1073, 145 L. Ed. 2d 1060 (2000). Although the first part of this test superficially resembles the first
prong of a selective enforcement claim, there is a dispute in this Circuit’s district courts over whether the
same standard applies to both selective enforcement and “class of one” claims. Mosdos Chofetz Chaim,
Inc. v. Village of Wesley Hills, No. 08-CV-156 (KMK), 2011 WL 4445626, at *11-13 (discussing
disagreement and applying more demanding similarity standard for “class of one” claims). Because this
Court finds that Laidlaw is not similarly situated even under a more permissive selective enforcement
standard, it need not consider whether Laidlaw would fare better under the potentially more stringent
“class of one” standard.
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Town’s illicit motives in depriving Laidlaw of the value of its property. More important to itsequal protection claim, Laidlaw accuses the Town of treating the facility’s previous owners,EEI, more favorably. (Comp. ¶ 100.) This is significant because, before reaching thequestion of Defendant motivations, the Court must consider whether EEI was similarlysituated to Laidlaw, and whether there were specific instances of differential treatment. See Ruston v. Town Bd. For Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010) (prior“general allegation” pleading standard superseded by Iqbal). Here, Laidlaw has shownneither.
First, Laidlaw is not similar situated to EEI. Laidlaw alleges that EEI operated theCo-Generation Facility without acquiring the necessary permits or that it was granted themupon request. Laidlaw has, by its own admission, not sought such permits or variances. It is an open question whether Ellicottville would have denied Laidlaw’s applications. EEIalso operated the facility continuously for several years, whereas Laidlaw shut down thefacility from 2003 onwards. As this Court has found, the Town rationally determined thatLaidlaw abandoned or vacated the facility. This puts Laidlaw in a context different fromthat of EEI because abandoning the facility alters the applicable zoning codes. It isunknown what would have happened had EEI ceased operation for several years, and thenattempted to restart the facility, because the ZBA did not issue a decision interpreting thefacility’s conformity with local zoning codes until 2007. Consequently, EEI and Laidlawcannot be viewed as similarly situated.
Second, Laidlaw has not identified anything that the Town granted EEI but deniedLaidlaw. For example, Laidlaw claims that EEI was allowed to build a biomass gasificationsystem, featuring a 60-foot-tall exhaust stack, as well as setup a biomass combustion
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project utilizing wood pellets. (Comp. ¶¶ 20, 21.) However, the mere fact that EEI mayhave been operating in violation of zoning ordinances does not evidence differentialtreatment. “[E]qual protection does not require that all evils of the same genus beeradicated or none at all.” LeClair, 627 F.2d at 608; see also Zahra, 48 F.3d at 684(finding no malicious or bad faith intent to injure merely because plaintiff was cited forpossible fire code violation, while four other businesses were not). Additionally, Laidlawdoes not specify which permits the Town granted, and which it denied, or when the permitswere issued. See Bishop v. Best Buy, Co., No. 08-CV-8427, 2010 WL 4159566, at *11(S.D.N.Y. Oct. 31, 2010) (well-pled facts showing differential treatment remains “essentialcomponent” of equal protection claim for which conclusory allegations of selectivetreatment are insufficient). Laidlaw has also not shown that it and EEI were seeking thesame permits or variances. Consequently, EEI’s circumstances appear very different fromthose sought by Laidlaw, and, in the absence of better pled facts, act to preclude Laidlaw’sequal protection claim.
Even assuming EEI and Laidlaw were similarly situated, the complaint’s conclusoryallegations that the Town intended to injure Laidlaw to benefit the Northrup family areinsufficient to meet the selective enforcement test’s second requirement. See CathedralChurch of The Intercessor, 353 F. Supp. 2d at 383 (granting dismissal of equal protectionclaim where plaintiffs relied on conclusory allegations of malicious, discriminatory, and badfaith acts). The only specific factual allegation in support of Laidlaw’s equal protectionclaim is that the Town amended its Comprehensive Plan in 2006 , with support from theNorthrup family, so that the land use pattern envisioned for the area containing the facilitywas not in conformance with Laidlaw’s operation of the facility. (Comp. ¶ 101.) Similar
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speculation was held not to defeat dismissal in Toussie v. Town Bd. of Town of EastHampton, No. CIVA 08-1922 DRH WDW, 2010 WL 597469, at *9 (E.D.N.Y. Feb, 17,2010). In that case, plaintiff alleged that defendant had targeted the plaintiff’s property foracquisition and made numerous offers to purchase it. Id. The court, looking to the SecondCircuit’s decisions in Bizzarro and Harlen, found that plaintiff’s factual allegation did notreveal any personal conflicts between plaintiff and members of the town’s board, merelyrevealed the defendant’s legitimate interests in preserving natural resources, and were, “atbest, merely consistent with the Town’s liability and stop[ped] short of the line betweenpossibility and plausibility of entitlement to relief.” Id. at *10 (quoting Iqbal, 129 S.Ct. at1949) (internal quotation marks omitted). Similarly here, Laidlaw has not alleged anypersonal conflicts between the Planning Board and itself. The fact that the Town mayultimately desire the facility’s disassembling in order to promote Ellicottville’s attraction asa ski resort highlights an economic, not a malicious, interest. See Bizzarro, 394 F.3d at 87(no constitutional violation where punishment motivated by desire to secure compliancewith agency objectives). As in Toussie, although these allegations may make Defendant’sbehavior compatible with acts intended to injure Laidlaw, they do not make them moreplausible.
Consequently, Defendant’s Motion to Dismiss Plaintiff’s equal protection claim willbe granted.
IV. CONCLUSION
For the reasons discussed above, Defendant’s Motion to Dismiss is granted.
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V. ORDERS
IT HEREBY IS ORDERED, that Defendant’s Motion to Dismiss (Docket No. 8) isGRANTED.
FURTHER, that the Clerk of the Court is directed to close this case.
SO ORDERED.
Dated:October 16, 2011
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court
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sarcasm does exist, doesn't it?
...never would have guessed this outcome...
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LAIDLAW ENERGY AND
ENVIRONMENTAL, INC.,
Plaintiff,
v. DECISION AND ORDER
08-CV-32-S
TOWN OF ELLICOTTVILLE, NEW YORK,
Defendant.
I. INTRODUCTION
In this action, Plaintiff asserts claims under the Fifth and Fourteenth Amendments
of the United States Constitution pursuant to 42 U.C.S. § 1983. Plaintiff’s claims arise out
of Defendant’s decision to deny Plaintiff’s site modification application and classify the
operation of a power generation facility a non-conforming use under local zoning laws. Plaintiff seeks a declaratory judgment that Plaintiff did not abandon or vacate its power
generation facility, an order declaring the denial of its application unconstitutional, an order
directing Defendant to approve the application, and money damages in the amount of$10,000,000, in addition to attorneys’ fees and litigation costs. Presently before this Court
is Defendant’s Motion to Dismiss Plaintiff’s complaint in its entirety. For the reasons
discussed below, Defendant’s motion to dismiss is granted.1
Has there been some confusion created as to who owns Susanville? Anyone familiar with the track record of lessees on this property? Anyone looked into financing these days as a lessee? I probably missed something here but are we talking about Laidlaw as if they own Susanville?
I'm pretty sure it was Richard Cyr that attracted Cate St. to LLEG. Richard Cyr was trying to find financing for LLEG early on. Richard had ties to a financial company, to Cate Street and eventually to a Cate St. company known as Red Desert out west which purifies contaminated water from oil refineries as I recall. If you google Red Desert, or Cate St. Capital, Richard's name appears, and is instrumental in marketing for the firm. At the time Cate got involved, a great deal of the preliminary work had already been accomplished and I'm sure Cate St. had assurance from PSNH that NO ONE would stop this project as PSNH has the PUC wrapped around their jobs.
from a google reference;
"Richard is an energetic entrepreneur with extensive experience working with and advising over 150 companies. He brings a thorough knowledge of successful marketing, sales and business management expertise to the table. Co-founder and President of “Cyr & Knowles”, a full-service advertising agency which specialized in real estate development marketing; the firm has provided Integrated Marketing Communications services since 1987. Known for his result oriented approach,
ichard developed a proprietary methodology of developing and implementing marketing plans, giving clients the ability to track results and maximize their return on investment. With Richard as President, “Cyr & Knowles” consistently ranked in the top 1% of most profitable agencies for its size throughout the country and won multiple professional awards over the span of its existence including six national, four regional, and twenty-eight state wide for marketing excellence."
Cate had no relationship with LLEG during the Ellicotteville era. Richard Cyr connected LLEG with Cate and Fibrowatt as I recall in either 2007 or early 2008. Cate had a great deal to lose having paid off the competitor, (Clean Power and perhaps even Fibrowatt), satisfied the lawsuit with Waldron, and paying various items pertinent to the process towards the end of the PUC hearings, not to mention formidable legal expenses and salaries to a large team that combined to fight the deal to a close without Laidlaw dragging them down. Cate needed to buy Laidlaw out of the deal in an effort to gain credibility. And they did.
Cate has apparently replaced Laidlaw with bringing Gestamp (highly credible in the biomass field) into the mix, which in combination with all the other protective covenants handed to the project through the process gave the project enough credibility to move forward. I think the FSEC, the SEC and the PUC all saw through Mr. Bartoszek as they were well aware of his past history in delinquent payment to vendors and a grant dismissal by the state of New York along the way as well as the issues of nonpayment to numerous vendors during the Berlin application which included engineers, attorneys, etc.
Cate and LLEG go way back to a point where Cate would have had much to lose without continuing forward. Cate had a history only of receivership with lleg that was quite cleverly hidden by lleg through a lawsuit quieting much of the town of Ellicottville from daring to say a word at the time, and a drafted Berlin power purchase agreement in place. And Berlin was to be a large project far more enticing to a lion's risk on bedding down with weak prey.
Susanville is a horse of a different color without any sister Cate already dragged into an unfortunate marriage, with a SEC investigation, and a token payoff from Berlin that doesn't really shed much light as to any prize for what lleg claims was their baby.The risk factor, in comparison to pay day, is significant in this day and age based on a readily available track record full of people that have felt they've been burned over the past ten years from vendors to investors.
Also absent from Susanville, or anywhere else other than Berlin's exposure are the array of prs anyone could find by googling the internet on Berlin's project. The interest in Laidlaw just doesn't seem to be hitting the media at all any more, and investor activity is as slow as the days that go by waiting for any positive news.
"It all hinges on a repeat Berlin in Susanville."
and of course outstanding testimonials are being received by Susanville on a daily basis, and no one there ever thunk to google lleg's track record, so the above quote appears to be a slam dunk.
Ah yes, the terms "acquired control of the asset", "lease with intent to eventually acquire", come to mind. Anyone wish to guess why Ellicottville still appears on lleg ihub?
"We all know what that will take."
We do? Is this akin to pulling a rabbit out of hat without having a magician?
...or does it make it inappropriate?
I'm sure plenty of people thought the odds were against Bart in Ellicotteville when he came out of receivership and managed to obtain a million dollar grant from the state of New York. But today, asking for 25 times that amount without the ability to obtain a grant, looks like "oaky doaky" might well turn into humpty dumpty.
Bart's been getting away with scams for over two decades. He's able to do so by escorting investors over cliffs that become brainwashed not to bother with due diligence of researching what reality is within the company they bet on. He has, for twenty years, promoted his penny stock into a self serving jack pot through using the biomass industry as his allure, and the investor as his means to his end. Along the way, he fails to look you in the eye if you've ever met him.
keeping faith lleg will be out also.
Can't be. Mike said it wasn't so.
Someone didn't think it was funny.
This CEO has lived up to all of my expectations to date.
It's simple really. Your accusations were such that the post you referred to did not contain facts, when indeed those statements can be easily matched to factual data. Additionally your post implied that that the sender of those facts lied, when indeed there has never been any documented validity to that statement.
The relevance being that the facts can be checked and speak volumes as to why this stock ended up where it is. Your accusations about any "outright lies" in your description as a "witch hunt" have not at all been substantiated. Cate Street, the PUC, the SEC, the EFSEC, the people of Ellicotteville, the grant providers in New York, to name a few, recognized Mr. Bartoszek for what he truly is, and in fact, rumor has it that Clean Power/Gestamp may have combined forces (at least in financing) with Cate St. on the Berlin project and other projects as well.
As a side note, the supposed witch hunter was always for biomass in Berlin; he preferred the Clean Power plan on the outskirts of the city of Berlin, yet when the Gorham paper mill decided to get their heat from natural gas rather than Clean Power's steam and it became documented that Cate St. had bought out Clean Power/Gestamp, it became logical to drop intervenor status against the Cate Street project. Along the way, many many safeguards were implemented into this project that combine to protect the area from a variety of concerns raised. All is looking more and more promising in the land of Berlin but not necessarily in Bartoszekville.
or perhaps part of the sequel to A Nightmare on Cate Street.