Copyright 2000 The Hearst Corporation
The Times Union (Albany, NY)
August 2, 2000, Wednesday, 4 EDITION
CAPITAL REGION, Pg. F3
Company files appeal to state's highest court
By: MICHELE MORGAN BOLTON; Staff writer
East Nassau Ruling expected in fall over denial of Lane Construction's attempt to mine Snake Mountain
In a final effort to overturn the state Department of Environmental Conservation decision denying it permission to mine Snake Mountain, Connecticut-based Lane Construction Co. has filed for leave to appeal with the state's highest court.
A Court of Appeals ruling is expected in the fall.
DEC Deputy Commissioner Peter Duncan's landmark 1998 decision crushed Lane's 150-year plan to operate a hard rock quarry on 119 of 136 acres surrounding the rural village along the Kinderhook Creek.
Lane attorney Jim Potter, of the Albany firm Degraff, Foy, Holt-Harris and Kunz -- who maintains the DEC denial, based on the visual impact on the community's character, set a statewide precedent -- first challenged the denial in an Article 78 action that was rejected by the mid-level appellate division in March. Potter then asked for reargument or an elevation of the matter to the Court of Appeals but his motion was denied June 14.
Nassau Union of Concerned Citizens president Bob Henrickson -- one of the movers and shakers who helped form the Village of East Nassau to, in part, to fight the mining proposal -- pointed to a 1992 DEC letter stopping Lane's unpermitted work at the site as proof of the kind of neighbor Lane would be if it were allowed to continue. "I always felt that letter was a harbinger of things to come," Henrickson said. "Lane, in my opinion, has exhibited a reckless and callous disregard for this community as they have relentlessly attempted to steamroll this proposal over the concerns of state agencies and the standards of local land use legislation."
Potter said his client hasn't decided what to do should the Court of Appeals request be denied although he did say a possible solution could be to submit a takings claim, which essentially asks the state to buy the land since it is useless to the mining company as it is.
"No decision has been made on that," Potter said Monday. "But it certainly is a possibility. The land is essentially vertical. There's no reasonable economic use there. You can't put a housing development on it. Who should bear the cost of the land? Probably the public."
The Lane/DEC saga is reminiscent of a decade-long episode that culminated three years ago when the state paid $ 29 million to settle a $ 200 million lawsuit filed by Inter-Power, an offshoot of a German conglomerate that had proposed building a 210-megawatt coal-fired generating plant in Halfmoon, with a contract to sell NiMo the electricity.
NiMo terminated the contract in early 1993, when it looked like the Inter-Power plant would not be operational by its intended start-up date of December 1993.
With its project dead, Inter-Power eventually sued the state for $ 200 million in a dispute that claimed state officials provided it faulty data. The state settled the case in 1997 for $ 29 million, a record amount, when documents were found to back up Inter-Power's claim.
Members of the Rensselaer County Legislature have long agreed that the Lane proposal isn't right for the quaint country community and they've supported the court decisions to turn back the project.
"Residents have believed the Lane project would have hurt their community, and after much hard work, they have been successful in opposing the project," said Martin Reid, R-Sand Lake. "Hopefully, this move by Lane begins the last chapter in what has been a long legal fight."
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