With All Due Respect

I agree wholeheartedly with one point raised in the December 29th email from my longtime friend and former client, Margaret Wooster.  It is time for citizens concerned about the Outer Harbor’s future to “strengthen our resolve and focus for the new year.”  But I am absolutely convinced – after 32 years of representing residents in development and SEQRA cases – that the least effective step that could be taken at this juncture is to expend precious time, energy and money appealing the unfavorable decision rendered on December 9, 2021 by Supreme Court Justice Donna Siwek (see LWVBN v ECHDC – Siwek’s 12-09-21 Decision).

I greatly admire the grit shown by the Petitioners, League of Women Voters of Buffalo/Niagara, Inc., The 21st Century Park In The Outer Harbor, Inc., and The Western New York Environmental Alliance, Inc., in bringing the “Article 78 proceeding.”  But here’s the reality:  Their lawyers took a case that was going to be extremely difficult, at best, to win, and, in my professional opinion, gravely undermined any chance at success by their actions and omissions.   Here are some examples:

First, complying with the four-month statute of limitations for challenging the determinations made by Erie Canal Harbor Development Corporation (ECHDC) isn’t just a “technicality.”  It is a prerequisite for succeeding in a lawsuit.  Commencing the lawsuit on June 24, 2021 was not only well beyond four months from the November 8, 2020 ECHDC approval of the contested plan and SEQRA “Negative Declaration,” it was more than four months from February 8, 2021, the date the ECHDC reaffirmed their original resolution.  If Petitioners’ team of attorneys had hoped to prevail by making a “creative” legal argument, or by making new law on when the statute of limitations begins to run, they were obligated to fully inform their clients of the riskiness of their approach.

Second, a court challenge to a decision made by the City Planning Board – such as site plan approval, or LWRP consistency determination – must be brought within 30 days of the Planning Board’s action.  The City Planning Board made its determinations relating to the ECHDC’s amphitheater plans on May 17, 2021, more than 30 days prior to the commencement of Petitioners’ lawsuit.  [Note:  On September 13, 2021, the City Planning Board revisited ECHDC’s site plan application, and reapproved it with conditions.  The September 13th determination could have been challenged in court within 30 days of that approval by either filing a motion seeking to supplement the original Petition by adding the new claim(s), or by filing a second Article 78 petition.  It appears that no such steps were taken.]

Third, as New York’s appellate courts have made clear, administrative boards – such as a municipality’s Planning Board or Zoning Board of Appeals – are separate and independent entities from the municipality itself.  For that reason, when you challenge determinations made by the City of Buffalo Planning Board, the Planning Board is a “necessary party,” and must be expressly named as a Respondent in an Article 78 proceeding.  By only naming the City of Buffalo as a Respondent, and failing to name the City Planning Board as a separate Respondent, Petitioners’ lawyers doomed any claims raised in the lawsuit based on City Planning Board actions or omissions.

Fourth, if a lawyer wishes to prevent construction-related activities – including vegetation removal and grading – during the pendency of a lawsuit, he or she must seek a restraining order or “preliminary relief” in a timely manner  New York’s appellate courts have frequently held that, when no timely and meaningful attempt has been made to preserve the clients’ rights by requesting such relief, and significant construction-related activities occur, an appeal from an unfavorable ruling may be rendered “moot,” and the appeal dismissed.  Here, for whatever reason, Petitioners’ lawyers did not seek a restraining order or preliminary relief in June 2021 when the lawsuit was commenced, despite the fact that the City Planning Board and Common Council had already given their approvals to the project.  Nor did they file a motion seeking preliminary relief – despite four months of adjournments – at the time oral argument was heard in November 2021.  [Note:  Even if the request for preliminary relief had failed, under well-established legal precedent, the ECHDC would have been put on notice that it proceeded with any construction “at its own risk.”]  Not even Justice Siwek’s unfavorable decision on December 9, or the subsequent sight of construction equipment at the site of the proposed amphitheater shortly thereafter, resulted in a prompt filing of papers requesting preliminary injunctive relief.

Because Petitioners’ lawyers have not, in my opinion, done “all they could do to timely safeguard their interests,” an injunction or “stay” at this point to prevent further destruction of our recovering Lake Erie coast is highly unlikely, and would have to be secured by a bond or other sizeable undertaking. [Note:  If the appeal proceeded and was unsuccessful, Petitioners would be held liable for damages to ECHDC resulting from the delays.]  Also, it appears, such injunctive relief at this stage – given the removal of over 100 trees and other vegetation, and the bulldozing and scraping off of soil on 5+ acres of the amphitheater’s “great lawn” – would be, at best, too little, too late.

I’m not happy to have to write this blog post.  And, I won’t claim to have any great ideas on what steps need to be taken.  But I urge Buffalo Outer Harbor Concerned Citizens to find a new focus for 2022.

With All Due Respect,

Art Giacalone