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Watts file notice they may sue Gaines for slander

By Tom Rivers, Editor Posted 18 April 2016 at 12:00 am

File photo by Tom Rivers – Chris and Karen Watt had this 154-foot-high wind turbine at Watt Farms on Route 98 erected about four years ago. The construction and location resulted in lawsuits from a neighbor and the Town of Gaines.

GAINES – Chris and Karen Watt, owner of a fruit farm and farm market on Route 98, have filed a notice of claim against the Town of Gaines, saying they intend to sue the town and four town officials for “slanderous and libelous” comments in regards to the wind turbine near the farm market.

In an Orleans Hub article in January, Town Supervisor Carol Culhane voiced her disappointment that James Punch, acting Supreme Court justice, allowed the turbine to stay put following an order from the state Department of Agriculture of Markets.

Culhane and three Town Board members – Richard DeCarlo Sr., James Kirby and Susan Smith – on Jan. 5 passed a formal resolution that was critical of Ag and Markets for “immoral conduct” with the turbine issue at Watt Farms. The Town Board asked the Attorney General to conduct an ethics review of Ag and Markets staff with the Watt turbine issue and similar matters.

The resolution also stated that the Watts “attempted to evade the requirements of the Town Law by obtaining a permit for a wind tower which required site plan approval.”

The Gaines resolution, approved by four Town Board members, also stated the Watts received “illegal assistance” from the former Planning Board chairman in obtaining an improperly issued permit so the turbine could be sited “in a location which directly threatened public health and safety.”

Frank Aloi, the attorney for the Watts, said Chris and Karen Watt did nothing wrong with the turbine permitting process. He said they went to great lengths to follow the local and state laws.

The resolution on Jan. 5 from the town clearly infers an “illicit conspiracy” between the Watts and the former Planning Board chairman with the building permit, according to the legal papers filed by the Watts. However, previous litigation showed the Watts and prior town officials did nothing illegal, Aloi said in the notice of intent.

Culhane, the town supervisor, when contacted by Orleans Hub declined to discuss the issue because of the possible litigation.

When she first took office in January 2012, she moved to abolish the Town Planning Board and have those functions handled by the Zonings Board of Appeals. The ZBA then had the Watts reapply for a permit, which had been approved in 2011.

The second time around the town told the Watts the turbine needed to be moved away from the farm market and a U-Pick orchard. The Watts and Ag & Markets said that could cost $20,000 and was unreasonable. The town wanted the turbine 169.4 feet away from areas where people gathered. (That represents 1.1 multiplied by the turbine height.)

Ag and Markets suggested the setback from “human-occupied buildings” be five times the rotor distance or five times 23.6 feet, which would be 118 feet for the Watt turbine. Ag and Markets based that suggestion from the recommendation by New York State Energy Research and Development Authority or NYSERDA.

Ag and Markets also said any U-Pick area within the 118 feet could be off limits to the public.

Judge James Punch, acting Supreme Court justice, made final ruling on the matter in December, saying the turbine should stay put. He based that decision partly on the determination and order from Richard Ball, commissioner of the NYS Department of Agriculture and Markets.

Ball on Jan. 14, 2015 said sent official notice to the Town of Gaines, saying it was wrong to insist that the turbine be moved away from a farm market and U-Pick orchard at Watt Farms. Ball sent the letter to town officials, telling them they needed to comply with the Agriculture and Markets Law.

Culhane and the board majority have alleged “immoral conduct” by Ag & Markets and said the state agency has “falsely represented the facts of the case.”

Those comments are noted in the notice of intent from the Watts. Aloi, in the March 4 filing, said the Town Board didn’t appeal Punch’s decision in December, but instead used a “bully pulpit” at the Town Board meeting and in the local media to “intentionally and maliciously libel” Chris and Karen Watt.

Aloi said the potential damages against the Watts from the alleged defamation are unknown right now. The farm market hasn’t opened yet this year to see if the Watts will lose customers from the attacks on their character. The Watts also sell fruit at many farmers’ markets in the region, in addition to selling fruit wholesale to larger customers.

Filing the notice of intent gives the Watts the option to file a lawsuit within a year. Aloi, in the court papers, said the Watts have already spent $35,000 in litigation costs, and most of that could have been avoided if the Town Board hadn’t dissolved the Planning Board and launched a “personal vendetta” against the Watt family.

The notice of intent names the four Town Board members who voted in favor of the resolution on Jan. 5. It doesn’t name Mary Neilans, a new Town Board member who was sworn into her position as town councilwoman on Jan. 5. She abstained from the vote on the resolution about the turbine. Neilans lives next to the Watts, and she filed the first lawsuit in the matter after the turbine went up in August 2011.