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October 14, 2005Judge tosses Tondu-Manistee lawsuitCompany accused city of discriminationBY JOHN FLESHERThe Associated Press KALAMAZOO - A federal judge Thursday threw out a $59 million lawsuit filed by an energy company after the city of Manistee denied its permit application to build a coal-fired power plant. Manistee Salt Works Development Corp., a subsidiary of Houston-based Tondu Corp., went to court in July 2004. It accused the city of discrimination and denial of due process by rejecting the 425-megawatt plant after months of sometimes bitter debate in the Lake Michigan town of about 6,500. U.S. District Judge Richard Enslen, based in Kalamazoo, ruled the company had no case and granted the city's motion to dismiss the suit without hearing oral arguments. But he said the lawsuit wasn't frivolous and refused to make the company pay the city's attorney fees. "We have many things on our plate in Manistee, and it's nice to be able to put this behind us to work on those other issues," City Manager Mitchell Deisch said. A spokeswoman for Manistee Salt Works had no immediate comment. The company in 2003 proposed constructing the plant at an abandoned industrial site on an inland lake, linked to Lake Michigan by a river. The company and local supporters said the project would boost the economy and create up to 60 permanent jobs. Opponents said the plant would emit mercury and other toxins and would hamper the one-time factory town's effort to remake itself into a tourist and retirement haven. The Manistee Planning Commission denied a special-use permit in April 2004, a decision later affirmed by the city council. The planning commission said the buildings and smokestack would exceed height limitations and be too close to residential and commercial areas. It said the project wasn't designed "to protect the health, safety and welfare of the community." In his ruling, Enslen said Manistee Salt Works hadn't proven it was a victim of discrimination because it offered no evidence that similar permit applicants were treated differently. The company needed to show that Manistee "permitted another special use applicant to strain its resources, increase pollution, enrage its citizens, blemish its skyline, and generate no tax revenue when it denied (the) permit," Enslen said. Manistee Salt Works claimed city officials initially supported the project but manufactured reasons to reject it after the company wouldn't meet their demands for a "community service fee." Enslen said it was reasonable for the city to seek compensation for revenue it would lose if the company lined up tax-exempt investors in the power plant. The lawsuit originally sought $100 million in damages. In later filings, the figure rose to $810 million before dropping to $59 million. Fred LaPoint, president of Manistee Citizens for Responsible Development, a group that waged a high-profile campaign against the plant, said the judge's ruling showed that "it doesn't matter how big or small you are. The citizens have a right to have their voice heard." LaPoint's group and the Little River Band of Ottawa Indians, which also fought the power plant, were allowed to intervene as co-defendants in the suit. Their combined efforts reflect "our shared commitment to protecting the integrity and character of our lands and our communities, the health of people and protection of our environment and Mother Earth," said Lee Sprague, the tribe's ogema, or leader.
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