Photo by Tom Rivers.
A State Supreme Court justice on Thursday dismissed a lawsuit and temporary injunction against the construction of a nearly 10-mile-long sewer main from the STAMP manufacturing site in the town of Alabama along Route 63 to Oak Orchard Creek in the town of Shelby.
Judge Frank Caruso ruled in favor of the Genesee County Economic Development Center. GCEDC argued that Orleans County had 23 chances to state its objection to the sewer main since 2016 but waited until construction started to voice its opposition.
Judge Caruso cited the legal argument of “laches,” where there is a lack of diligence in making a legal claim. Attorneys for GCEDC argued in court that waiting until construction commenced on the project should be considered an unreasonable delay.
The judge also ruled in favor of GCEDC due to a statute of limitations. He made his decision from the bench in court today, following about an hour of arguments in the main courtroom of the county courthouse. He will also issue a written decision.
Orleans County officials say the county will appeal the decision and has other court options to try to halt the project.
“The fight here is not over,” said Alex Eaton, an attorney for the Orleans County Legislature. “We have several more paths to prevent Orleans County from becoming a dumping ground for STAMP sewer discharges.”
The county also has a lawsuit to be heard in April about GCEDC using eminent domain to take easements in Orleans County. The attorneys for Orleans said another county’s IDA can’t do eminent domain in another county.
Orleans also supports the Tonawanda Seneca Nation in its litigation against several federal entities regarding the permitting of the sewer pipeline.
“Orleans County leadership remains steadfast in our opposition to anything that puts Oak Orchard Creek in jeopardy,” Eaton, an attorney with Lippes Mathias, said in a statement released from the County Legislature. “The county and its residents rely on the creek for water, recreation and tourism, and that is why we will continue to protect the interests of our community. Again, while we are disappointed in today’s result, there is a long way to go before this issue is settled.”
Orleans County filed its lawsuit on Sept. 11, naming GCEDC, G. DeVincentis & Son Construction Co., Inc., Genesee Gateway Local Development Corporation, and STAMP Sewer Works, Inc.
Matthew J. Fitzgerald and James O’Connor of Phillips Lytle LLP appeared in court today on behalf of GCEDC. They contended that the sewer main underwent a rigorous environmental review of 9,200-plus pages and was ultimately approved by the state Department of Environmental Conservation, Army Corps of Engineers, and U.S. Fish and Wildlife Service. The attorneys said those agencies found no evidence of harm to Oak Orchard Creek or the community.
The sewer main would allow businesses at the 1,250-acre STAMP to discharge treated sewer water into the Oak Orchard. At STAMP’s peak, the sewer main could discharge up to 6 million gallons daily in the Oak Orchard. The sewer main is imperative for economic development at the site.
“STAMP does not survive without somewhere to discharge the treated sanitary water,” Fitzgerald said in court today.
Fitzgerald said the four-month statute of limitations passed after Orleans filed the Article 78 proceeding on Sept. 11, and the county failed to notify other parties that would be hurt if the lawsuit successfully halted the sewer main.
He said property owners who paid for easements for the temporary construction could lose out on payments. The Town of Alabama would miss out on 100,000 gallons of sewer capacity, and Niagara County Water District would miss out on selling water to the STAMP site. Orleans didn’t factor in those impacts in the lawsuit, Fitzgerald said.
The crux of the case, he said, was the contention that Orleans never gave its support for economic development from another county. But he said Orleans officials were notified in 2016, 2020, 2021, 2022, and 2023 to voice any concerns over STAMP, and GCEDC served as the lead agency.
“The response was silence,” Fitzgerald said. “They slept on their rights for approximately eight years. They could have objected.”
He said STAMP has about $100 million in public funds committed to developing the site so far, and about $1 billion has already been spent or committed in private investment.
Orleans' attorneys contend that Genesee County used its money through its industrial development agency to fund the sewer main and pursue eminent domain in another county, powers that an IDA does not have.
Jennifer Persico, an attorney with Lippes Mathias representing Orleans, said the STAMP sewer project clearly used Genesee County funds to move the project into Orleans County.
The GCEDC attorneys said the project was funded through state grants and wasn’t actually GCEDC money.
The town of Shelby also joined Orleans in the lawsuit. The Shelby attorney, Jeffrey Allen, said Shelby supports the efforts of Orleans County to halt the pipeline before it gets into Orleans. He said there are many violations of general municipal law related to the project.
Shelby previously supported the project, but he said that was a statement considering its environmental impacts.
“The consent was not that they could run roughshod over the autonomy of Orleans County,” Allen said in court.
Eaton, an attorney for Orleans County, said the case could be a landmark for the state. He said the courts should protect smaller neighboring counties from being forced to take on negative impacts from another county’s economic development efforts.
“This would be one of the biggest expansions of IDA power in New York State,” Eaton said.
Tom Rivers is editor OrleansHub.com.
