Cartoon by an anonymous Buffalo Resident and Concerned Citizen

GreenWatch: Challenging the New "Business as Usual"

by / Jul. 10, 2016 8am EST

Late last week, four concerned individuals filed an Article 78 Lawsuit in State Supreme Court, seeking to overturn the Buffalo Planning Boards issuance of a SEQRA “Negative Declaration” regarding the Queen City Landing LLC tall glass tower proposed for the Outer Harbor Marina.  I am one of those individuals involved in this lawsuit.

WGRZ TV covered our filing here  (you can find our complete petition at WGRZ)

The Buffalo News covered it, here

On Thursday June 30, Buffalo Niagara Riverkeeper filed their own Article 78 lawsuit, which both borrows from and supports our positions, and adds a significant historic preservation context to the discussion. We expect that others will be joining us.

We, the Pertitioners, claim that the Negative Declaration removes further environmental review and accountability on this project. We are concerned that this is both a precedent setting project on the Outer Harbor, and which we believe needs significant environmental review given the location and design of this project. We are asking that the decision by the Planning Board, and the Buffalo Common Council’s decision to support that Negative Declaration be overturned, and that a more comprehensive Environmental Assessment be prepared for the site. We believe that this will serve the better interests of our community.


Special Update July 10, 2016

Buffalo, July 10, 2016  For Immediate Release, by Art Giacalone

“Respondent Queen City Landing, LLC, the developer of the proposed 23-story tower project adjacent to the Outer Harbor’s Small Board Harbor, has formally stipulated on the record that it will not demolish or remove any structural member or weight-bearing component of the former Freezer Queen building at 975-1005 Fuhrmann Blvd. prior to August 26, 2016.   Consistent with the agreement to refrain from demolition of the historically significant Freezer Queen building, Queen City Landing, LLC, will begin the asbestos abatement process and perform other exterior tasks on July 12, 2016.  The Petitioners, Margaret Wooster, Jay Burney, Lynda K. Stephens and James E. Carr, retain the right to seek a temporary restraining order [TRO] and preliminary injunction from the Court if circumstances call for such action.

 In conjunction with Queen City Landing’s stipulation, the Hon. Donna M. Siwek, Justice of the Supreme Court, placed entered the following Scheduling Order on the record in hopes of efficiently and expeditiously reaching a determination on the merits of petitioners’ challenge to the City’s approval of the mixed-use project:

-The City of Buffalo will provide the Court and parties with a full, transcribed record on or before July 29th.

-Respondents Queen City Landing, LLC, City of Buffalo Planning Board, and City of Buffalo Common Council will serve and file their answering papers on or before August 5, 2016.

-Petitioners will serve and file their reply papers on or before August 12, 2016.

​-The Court will conduct oral argument at 1:30 PM on August 24, 2016.”


Why Do We Do This?

On July 7, 2016 a letter appeared in the Buffalo News that helps contextualize why we feel that the SEQRA Negative Declaration by the Planning Board and the Buffalo Common Council is woefully inadequate:

Site may be unsuitable for apartment complex

I have another reason the Planning Board and City of Buffalo should have explored the site for the Queen City Landing apartment building and developed an environmental impact statement.

I worked that area both in construction and as an investigator for the Corps of Engineers from about 1963 to 1990. At one point or another, I worked on surveys, corrected erosional challenges and even helped correct NFTA projects gone awry.

In the 1960s, we were surprised when the recently built Times Beach and Buffalo Small Boat Harbor breakwaters had to be significantly raised and fortified several times. We presumed the bottom was softer than thought.

But in about 1968 we learned how really soft the area south of the Coast Guard was. On a navigation project we placed 12-inch steel “H” pilings lakeward of the Small Boat Harbor and discovered very deep quicksand. At about 100 feet, the material had the consistency of oatmeal mush.

The entire area north of the site was once swamp and the finest sturgeon habitat in the Great Lakes. We can expect very soft material lying very deep. In some point of geologic history, we can expect that entire area was some sort of swampy delta outlet to the Buffalo River.

Maybe an EIS and nature itself will dictate a much more appropriate structure than the adventurous spirits! Facts of impacts and long-term costs deserve to be developed rather than reliance on the ambitions of the developers.

Art “Happy” Klein


The petitioners initiated this lawsuit because we believe that the Buffalo Planning Board, encouraged and led by senior staff at the the City Office of Strategic Planning (Nadine Marrero) acted in error to issue the Negative Declaration. Because of issues that are broad-ranging and include the issues described by Mr.Klein in the above Letter to the Editor.

We think that the issuance of a Negative Declaration on this project, and one in which a wide spectrum of the community has offered substantial evidence, is misleading, mischaracterizing, and just wrong. The issuing of “Negative Declarations” under New York States Environmental Quality Review Act (SEQRA) by lead agencies, and in this case the Buffalo Planning Board, has become a policy to keep the public out of the decision making process. This provides cover for private interests, often using public money, to create inappropriate development, and may harm the publics greater interests (which could be revealed by more comprehensive SEQRA evaluations.

SEQRA is a law that enables decision makers, including the Planning Board and the City of Buffalo, and citizens, to review development proposals. This allows many eyes to evaluate and scrutinize  plans, designs, and decisions that may effect the environment, the quality and character of a neighborhood or community, and the quality of life of all citizens. Mr. Klein’s observations and experience with this site should be part of the review process. Period.  It is especially important when as in the case of this project, public money is involved.  SEQRA is the tool to ensure that a few individuals, working behind closed doors, don’t pave over the ecosystem with an ill-conceived and potentially destructive project so that a someone can turn a quick profit on the public’s dime.   For instance, in New York State, if you live downstream from pollution that is driving private profit, we have the legal opportunity to challenge any new projects that may cause our waters to be polluted and undrinkable. We have the legal opportunity to protect our own health and well-being. We have the right to weigh in on our quality of life. we have the right to ask for adequate evaluation and substantive remediation. This is a protection articulated under the SEQRA law. The strategy of weaking the publics right to know and to participate through weakening SEQRA protections will not move our community forward.


What is Queen City Landing?

A lack of transparency and the obfuscation of the environmental issues by the Buffalo Planning Board and the Common Council characterize this particular project.  We think that all waterfront development and our communities broad future, which will be governed by a new Greencode, deserve to be fully embraced by transparency and public engagement. We think that transparent and inclusive decision making reflects the communities best interests. Many of us have lived and worked he for a long time. We are totally invested in a positive future for our communities. We believe that many voices need to be heard in order to make that happen. We believe that this has not happened with this project.

This project is the first stage of a series of developments on Buffalo’s Outer Harbor. It is a tall glass structure that may not be the best design, or the best investment of public dollars.  Some speculate that it could lead to more surface parking and a strip mall at this location. We think we can do better. This particular project has been characterized as a $60 million private investment by a stand up developer.  We do not think that this reflects the real investments. Public investment in this project will include a costly brownfield clean-up, and the creation of infrastructure including water, power, and sewer lines. Police and fire protection will be on the public dime. Public money has gone into waterfront planning and remediation for decades. We believe that the public investment is a lot more than the promised private investment. We need to involve those that have paid the freight for the development of the Outer Harbor.  A day after our lawsuit was filed, WGRZ TV reported that it is a $40 million private investment. Is this a step down of investment or is there some equivocation going on here? For instance does this represent a step down of job opportunities promised by the developer?  We are shocked, just shocked.

We do not begrudge a business trying to make a profit. we just want to make sure that when the public investments and public well-being are involved, someone can step up and say “wait a minute.” Why are we giving this project a ride on the public dime? Can’t we do better?

Ultimately, this 23 story glass tower will cost us a lot.  We know that the environmental issues associated with this project have not been adequately addressed. It is by many opinions ugly, harsh, and has a certain totalitarian look to it.  Some (Think Ayn Rand) may like that. This edifice will stick out as one of the tallest buildings in the region. It will become the branding image for our Outer Harbor and our city. Whether you like the aesthetic or not, this building will be part of our communities image for generations to come. The public money spent on this project will not get many of us into the building. The condo’s will be very pricey. The traffic will limit access to the rest of the Outer Harbor. This is a project for, about, and with the 1%. It will hurt the rest of us.


Our Outer Harbor

This public has spent hundreds of millions of dollars since before the Horizons Commission began looking at, evaluating, strategizing, and planning for the Outer Harbor. Citizens have been engaged for years and have devoted countless hours trying to work with agencies and decision makers on projects that will make or break our local and regional economic vitality.  

Our communities have also invested millions of public dollars in environmental remediation, public education, and projects that will lift the quality of life of all residents including recreational opportunities, clean water, and climate change mitigation. This includes projects on the Outer Harbor including Times Beach, and Tifft Farm, shoreline and fisheries restoration efforts, recreational opportunities, and the massive clean-up of the Buffalo River.  Why is it that when individuals and organizations that have been involved in those projects, and have responsibilities to safeguard those public investments question the environmental stability of this project, are those concerns not heeded? 

Recent projects like the One Region Forward and the Western New York Regional Economic Development Plan both which lead to the opportunity for the Buffalo Billion, caution against this kind of development which is a classic defintion of sprawl). It is a given that sprawl is costly to communities and comes with negative economic impacts. 

Perhaps the Planning Board and the majority of the Buffalo Common Council have not read these foundational documents. We assume senior staff in the City of Buffalo Office of Strategic Planning have, since they were full participants in the development of those plans. Why the decision by Marrero to go against these expensive and costly plans that our communities have invested real money and real time in? Why does Council President Prigeon champion this lack of pubic and agency scrutiny? We need to think about this.

The non-transparent process of decision making which has been embraced by the Planning Board and the Buffalo Common Council is harmful to our citizens and  compromises our future economically, environmentally, and socially. This is a complete failure of sustainable thinking and planning. It is an abrogation of responsible decision making. It lacks the vision necessary to provide the best for our citizens.


Appropriate Development

Let us make it clear-we as petitioners and as good citizens are not opposed to development.  We realize that economic development, opportunity, jobs, and a sustainable future will serve us all and help to ensure that we and the generations that follow us will have the opportunity to thrive. We know that appropriate development, driven by the same public money will strengthen us.  We know that inappropriate development such as this tall glass tower on the waterfront, without a full and transparent environmental assessment, is inappropriate. It needs to be given more scrutiny.  With our lawsuit, we are hoping to provide the opportunity to do that, because clearly the City of Buffalo is more interested in the opposite.


Trolls and AssHats

You may notice that social media and even the Buffalo News encourages commenters that are often little more than anonymous trolls that sport identity-hiding pseudonyms.  These cowardly lions comment endlessly and repeatedly on articles and stories. Most often the critiques are devoid of any ideas, and focus mainly on personal attacks. They always opinionate and bloviate under the pretense of fact. When the articles turn to development critiques like the reports of this lawsuit, these nameless trolls belch and roar and call people like myself obstructionists and NYBY’s. Sometimes one wonders if these are paid trolls, sent out to obfuscate real issue and to divide the community with angry, and often senseless rhetoric. It can stir ones heart to think of one side as losers, and to bloviate about making America great again.

Reporters tease these thinkless whiners by including their talking points in the questions that they ask us. As if thoughtless opinions often based in deceptions and half-truths represent fair and balanced reporting. “How does it feel to be an obstructionist”, is often the first words out of reporters mouths.

The context is not so much to report the news but to drive controversies so that they can drive web traffic and clicks, which may result in some additional income for the media.  Let us resist for the moment that comments and clicks drive revenue. These strategies drive many thinking people away from the news outlets, and thus we have massive declines in readership and watching and listening audiences.  Our media is failing us.

The real obstructionists and NIMBY’s include the ad-hominum anonymous trolls, and the media that drives these mindless discussions.  The class of people, including elected officials, that insist on developing inappropriately and without proper evaluation that would be provided by a different approach to SEQRA also obstruct our communities efforts to move forward in ways that will benefit a wider sector of our community. Those that try to skirt the law, all for the turning of a quick buck for the few at the expense of the rest of the community are the real and substantive obstructionists.

They find ways to influence the decision makers, (see Steve Pigeon) HERE  and HERE

(and former Judge Michalek) HERE

They are almost always working on behalf of the political elite, to turn our common assets into a dollar for themselves. Instead, we that are leading this lawsuit stand up for our common future, and are seeking a future that works better, and embraces more people.

This strategy of downplaying requirements SEQRA have created great harm for our community. Clean water and air are not only at risk, but are almost entirely lost in this sea of idiocracy, inequity, and the failure of elected leaders to look out for our future.

We stand up, not as obstructionists and NIMBY’s, but we stand up TO the obstructionists and NIMBY’s  that believe that conquering the land, and squeezing the last drops of blood and gold out of our regional public assets are the way to reach the promised land.  In July of 2016, We stand up to them.