A local lawyer involved with the recent controversy over the Allegany County Industrial Development Agency exercising eminent domain to pave way for a Great Lakes Cheese manufacturing plant in Amity, NY, provided some details into the petitions filed in court last week. On Friday, head legal counsel for Marshacres LLC, Mark McNamara, filed a petition with the NYS Appellate Court, 4th Department, challenging the county action.
Ross Scott, a well known Andover based lawyer, is part of the legal team hired to contest the eminent domain action. He explains that the filing with the court asks that the county request to exercise eminent domain be nullified. “The Petition demonstrates that Allegany County IDA has no legal authority to spend any funds on this project, and failed to prepare an Environmental Impact Statement when it should have. “
Environment Impact Statements are one of the first steps in filing paperwork with New York State for any large development. The Walmart development project in Wellsville was derailed after activists petitioned the local government over incomplete and illegal Environmental Impact Statements in 2016.
Scott’s contention that the Allegany County IDA has ‘no legal authority to spend any funds on this project’ is grounded in law settled by the same Appelate Court in 1998. Scott explains:
“The name of the case is Main Seneca Corp. v. Town of Amherst Industrial Development Agency, it was about the IDA’s authority to expend funds, which Allegany County needs to do to use eminent domain. In the Main Seneca Corp case, Amherst IDA approved a sub-lease of a portion of an Amherst IDA funded building to a tenant that had abandoned its Buffalo offices to move to Amherst. The Buffalo company didn’t threaten to move out of the state, but did claim it would suffer a competitive disadvantage by staying in Buffalo. The 4th Department found no evidence of that, and concluded that the company wanted to move for the convenience of customers and employees. The Court found Amherst IDA was unauthorized to make the sub-lease and nullified it, which in our case would mean nullifying use of eminent domain. The Appellate Division’s Judgment in Main Seneca was upheld by the NY Court of Appeals in Matter of Main Seneca Corp. v. Town of Amherst, 100 N.Y.2d 246 (N.Y. 2003).”
In the case of Great Lakes Cheese moving from Cuba NY, to the proposed Amity NY site, the reasons for relocating are vague based on paperwork filed with NYS. The Allegany County IDA may not use county funds to simply move private businesses from one location, outside of two exemptions: The first, explains Ross:
“One exception to that is when an IDA finds it “reasonably necessary,” based on the company’s Application to the IDA, to expend funds to keep a company from leaving the state. Great Lakes Cheese didn’t provide any explanation in its Application – just checked a box. The Appellate division isn’t going to buy that.”
The second exemption allowing the IDA to spend money on ‘inter-county’ relocations is where the applicant(Great Lakes Cheese in this case) will suffer a competitive disadvantage by staying where they are. In this instance, Great Lakes Cheese, just checked the box and offered no explanation. Attorney Ross Scott provides this analysis:
“But they(Great Lakes Cheese) also undercut any “disadvantage” claim by admitting its reason for moving was to avoid modernizing its old plant in Cuba and to build a mega-plant. The Appellate Division won’t buy that as suffering a competitive disadvantage by staying in Cuba. The “anti-pirating” prohibition is in General Municipal Law 862(1). “
Plenty of questions remain about the initial paperwork filed by Great Lakes Cheese and the Allegany County IDA. The same can be said about the petition filed by Marshacres LLC last week to formally challenge the eminent domain action. This site will continue to learn more about this developing story and report accordingly. As of 5/1/21, numerous inquires for information from the Allegany County Industrial Development Agency and other county officials have gone unanswered.
Read our previous reporting on the subject,