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Verizon project allowed to proceed Judge rejects objections in suit

The $4 billion data center proposed by Verizon Communications in Somerset is an "environmentally benign" project that should be allowed to proceed, a judge has ruled.

In a 40-page decision issued Friday, Acting State Supreme Court Justice Matthew J. Murphy III rejected every objection brought by the owner of property across the road from the proposed data center site.

The civil suit challenged the manner in which town officials approved the project, alleging that corners were cut in the environmental review process.

Murphy disagreed.

So did Somerset Supervisor Richard J. Meyers.

"The process we went through in it, we knew was correct," said Meyers, one of several public officials who assembled in Murphy's courtroom to hear the ruling. "We went above and beyond what was required. We were confident the decision would be as it was."

Verizon has yet to officially announce its intention to build in Somerset and, in fact, told the New York Power Authority when it sought low-cost power, that it was considering sites in some Western states. But Meyers is not too worried.

"To me, it'll be officially a go when there's a shovel in the ground in Somerset, but at this point, I'm very confident," the supervisor said.

Verizon's plan envisions the creation of 200 jobs and the eventual investment of more than $4 billion in the Somerset site. Counting the estimated value of sales and property tax breaks and discount electricity from the Power Authority, the inventives approved for the project work out to $3.1 million per job.

"I'm disappointed with the decision," said Arthur J. Giacalone, attorney for the plaintiff, Mary Ann Rizzo of Amherst. "I will meet most likely with my client in the next few days. We'll issue a statement as to our course of action."

Verizon spokesman John J. Bonomo said, "The judge's decision is a validation of the thorough and detailed analysis conducted by the Town of Somerset in approving the proposed Verizon data center. While the company is still evaluating several remaining issues, [the] decision is a significant step forward as it proceeds through its decision-making process."

Verizon's plan centers on about 178 acres of land on Lake Road, immediately west of the AES Corp. coal-burning power plant. AES plans to sell the property to Verizon. At present, the power company rents the land to a local farmer who raised soybeans on it.

On the south side of the site is 117 acres of farmland that Rizzo has owned for 40 years. She rents it out to a local farmer for $2,700 a year, according to evidence in the court case.

The lawsuit asserted that the project received its approvals from the town, including a rezoning and a declaration that the data center would have no environmental impact, in a pedal-to-the-metal manner that Giacalone called "Verizon time."

Meyers first was contacted by Verizon in July. Verizon submitted its rezoning request Sept. 14. The Town Board approved the rezoning and the "negative declaration" on environmental impact Oct. 19. The Planning Board approved the site plan Nov. 1, the same night the Zoning Board of Appeals granted some needed variances.

The Power Authority granted Verizon 25 megawatts of discount electricity for the data center Oct. 26, and the Niagara County Industrial Development Agency approved a 20-year property tax break on Nov. 10.

Citing precedents in decisions by the State Court of Appeals, Murphy said that just because something is done quickly doesn't mean it wasn't done right, and that just because a project is big doesn't mean that a full environmental impact statement is necessary.

The judge wrote that the Town Board passed an eight-page, 17-point resolution that addressed all the possible environmental complaints and found none of them valid.

Murphy said the board "engaged in the requisite hard look, set forth its conclusions in a reasoned evaluation, and there was nothing in the board's decision that can be found to be arbitrary, capricious or unsupported by substantial evidence."

Murphy noted that the project received extensive publicity, and only Rizzo came forward with environmental objections. Also, in the judge's opinion, Rizzo did not have any solid evidence of such concerns.

"This is comforting further confirmation that the Somerset Town Board, in conjunction with all of their interested additional involved agencies, got this analysis right," Murphy wrote. "The Verizon multibillion-dollar state-of-the-art computer center really does appear to be an environmentally benign project whose economic potential far outweighs any inconvenience occasioned to this lone petitioner who has had difficulty articulating any credible environmental concerns."

The only point on which Murphy gave the plaintiff a nod was the claim that Verizon's site plan didn't receive the 45-day review from the town code enforcement officer, as required in Somerset's zoning ordinance. The site plan was submitted only 24 days before the Planning Board approved it.

But Murphy brushed that off, finding "substantial compliance" with a law that he said appeared to have been written "for the benefit of the town, not for any potential aggrieved party."

The judge noted that there were lengthy public hearings and an affidavit by code enforcement officer Randall Hildebrand, uncontradicted by Giacalone, that he worked along with the Town Board, the Planning Board and the town's engineering firm to review the Verizon plans.

Murphy also found that Rizzo had no standing to sue the IDA or the Power Authority. He also said the county Planning Board shouldn't have been sued because a 1995 agreement with Somerset cut the county out of reviewing projects within 500 feet of a state highway such as Lake Road (Route 18).

Giacalone said he has 30 days to file a notice of appeal, but obtaining a stay of Murphy's ruling to prevent the project from proceeding is another matter.

e-mail: tprohaska@buffnews.com

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