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Judge upholds actions of Town in Empire Transload case Supreme Court Justice Robert Lunn handed down his decision in favor of the Town of Caledonia in an Article 78 proceeding against the Town of Caledonia Zoning Board of Appeals, the Planning Board and Commodity Resource Corporation, in connection with the proposed liquid fertilizer and diesel fuel operation of Empire Transload Corporation on Route 5 west in Caledonia. The proceeding, filed in December 2004 by Rochester Attorney Robert Koegel on behalf of his clients Tia Palermo and Jess Ravich, was heard in Monroe County Supreme Court after both Livingston County Court Judges recused themselves. The Article 78 argued that the decisions of both the Town Planning Board and Zoning Board of Appeals to approve the proposed liquid fertilizer and diesel fuel facility in a light industrial location, and the subsequent variances, were "arbitrary, capricious and an abuse of discretion, and not supported by substantial evidence and for failure to comply with the provisions of the New York State Environment Quality Review Act (SEQR)." In his decision sustaining the actions of the Town of Caledonia, Judge Lunn ruled that the Town of Caledonia Planning Board had acted rationally in granting final site plan approval to Empire Transload Corporation for a liquid fertilizer facility at the Route 5 location. The court similarly upheld the actions of the Town of Caledonia Zoning Board of Appeals on their granting of a variance for an above ground diesel storage tank and their ruling that the proposed liquid fertilizer facility is a permitted light industrial use. "I’m very pleased with the work that was done, both on the part of the board secretaries and the town attorney, Mr. Peter Skivington," Caledonia Supervisor Dan Pangrazio commented. Palermo and Ravich, whose Spring Street property borders Spring Creek, have opposed the project since they learned of it one year ago. Their primary concern, in addition to the community’s safety, was for the environmental protection of Spring Creek, a habitation for several varieties of wildlife and for the propagation of trout at the New York State DEC Fish Hatchery. A group of residents shared Palermo’s concerns and attended several Planning Board and Zoning Board of Appeals meetings over the summer and fall 2004 to voice their opposition to the project prior to its approval in November 2004. Palermo gathered the signatures of over 400 residents that opposed the project. Speaking about his client’s reaction to the judge’s dismissal of the Article 78, Koegel said Palermo and Ravich are disappointed in the outcome and are weighing their options as to how to proceed. Koegel said he believes that Ms. Palermo did a great service to the entire community in bringing the suit against the Town, saying that it represented anyone who might be adversely affected by the project. Les Cole, President of Commodity Resource Corporation and Empire Transload Corporation, called the judge’s decision "good news" and said now he is looking forward to getting on with doing some of the good things for the community. Cole pointed out what he called "one good thing to come out of all of this," that the judge recognized the excellent job the town planning and zoning boards, and the town attorney did, handling this case. He vowed to keep his word to the residents to construct the best facility he can with the safety of the community in mind. After the judge’s order is signed, entered and served, Palermo and Ravich will have 30 days to file an appeal to the court’s decision.
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Lawsuit filed against
Town of Caledonia in case of On behalf of his clients, Tia Palermo and Jess Ravich, Rochester attorney Robert Koegel filed an Article 78 proceeding in December 2004 against the Town of Caledonia Zoning Board of Appeals, the Planning Board and Commodity Resource Corporation, in connection with the proposed liquid fertilizer and diesel fuel operation of Empire Transload Corporation on Rt. 5 west in Caledonia. The Article 78 argues that the decisions of both the Town Planning Board and Zoning Board of Appeals to approve the proposed liquid fertilizer and diesel fuel facility in a light industrial location, and the subsequent variances, is "arbitrary, capricious and an abuse of discretion, and not supported by substantial evidence and for failure to comply with the provisions of the New York State Environment Quality Review Act (SEQR)." The suit claims that the Town of Caledonia Zoning Board of Appeals acted improperly when it approved the Empire Transload project, arguing that the project is not a permitted use in a light industrial zone of the town, and therefore requires a use variance or a zoning change. The suit also challenges the ZBA’s approval of two variances for the project - approval of an on site above ground diesel fuel storage tank and approval for an on site convenience store. The Town of Caledonia Planning Board is also named in the suit that argues the PB approved the construction of the proposed Empire Transload facility without complying with SEQR (State Environmental Quality Review). Palermo and Ravich own 170 acres of land, including their home, on Spring Street in the Village of Caledonia. Palermo has voiced opposition to the proposed Empire Transload liquid fertilizer/diesel fuel project since spring 2004 because of her concern for protection of Spring Creek, which borders behind her property. Spring Creek is a habitation for several varieties of wildlife and for the propagation of trout at the New York State DEC Fish Hatchery. A group of residents that shared Palermo’s concerns attended several Planning Board and Zoning Board of Appeals meetings over the summer and fall 2004 to voice their opposition to the project prior to its approval. Proceedings will begin March 3, 2005 in Monroe County Supreme Court.
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