With All Due Respect

In an article published November 15, 2016, Buffalo Business First – a myopic cheerleader for any and all proposed development projects in Western New York – printed a sob story under the headline, “Legal challenges could stop Queen City Landing project.” Paraphrasing the project’s developer, Gerald A. Buchheit, Jr., Buffalo’s business journal informed the world that, “Prolonged delays, caused by a legal challenge filed against the 23-story Queen City Landing project, could potentially end the project on Buffalo’s Outer Harbor.”

On November 17, 2016, the Buffalo News joined Mr. Buchheit’s campaign. The region’s largest daily newspaper ran a brief article, under the headline, “Freezer Queen demolition mostly done,” in which my clients’ legal efforts to stop the Queen City Landing development is mentioned, and Mr. Buchheit then warns that he is “on a tight schedule” to get the new building constructed and enclosed by the end of 2017.

Neither Buffalo Business First, nor the Buffalo News, reached out to project opponents for their perspective on Buchheit’s comments. More importantly, neither publication has bothered to inform its readership about what occurred on the intervening day, November 16^th. That was the date a section of the former Freezer Queen wall fell into Lake Erie’s Small Boat Harbor (a state-designated significant bird and wildlife habitat) during the demolition process.  Here’s a photo – from a distance – of the above-water portion of the Freezer Queen debris draping the seawall and immersed in Lake Erie, followed by two photos of a construction vehicle’s efforts to remove the debris from the water (taken by me between 3:15 and 3:45 on the afternoon of November 18^th):

The public is left with many questions: Did Queen City Landing’s haste to complete the demolition activities contribute to this mishap? Has all the debris been removed? Has the aquatic habitat or the seawall structure (which – among other functions – holds back the contaminated groundwater) been compromised? Has the State DEC incurred expenses related to this event? Will there be an administrative investigation that could lead to imposition of fines or penalties against the project sponsor, Queen City Landing LLC, and/or its demolition contractor? Were the steps taken on behalf of the project sponsor to prevent this sort of mishap adequate? [Here’s a photo depicting the fencing that stands/stood between the massive Freezer Queen facility and Lake Erie’s waters.]

Answers – if forthcoming at all – will have to wait. But here are the reasons why I have little sympathy for the developer, and grave concern both for the environment and natural habitat areas comprising Our Outer Harbor, and for the integrity of a government decision-making process which allows developers to easily circumvent the very laws enacted to protect our fragile environment:

FIRST, in my opinion, aided by compliant City of Buffalo officials, the project sponsor took steps on November 3, 2016 – in response to my clients’ request to a Justice of the Appellate Division on November 2^nd to temporarily stop demolition of the Freezer Queen building – to intentionally destabilize the eastern (front) half of the Freezer Queen facility. By doing so, Queen City Landing provided support to their attorneys’ argument – made before the appellate jurist late on the afternoon of Nov. 3^rd – that the entire building was too unsound and unstable to stop the demolition process. [See the Nov. 4, 2016 affidavit-of-David-Sanborn, with a photo of the eastern portion of the building taken late in the day on Nov. 3^rd, which ironically states, “[T]he eastern portion of the structure is now structurally unsound and demolition needs to continue without delay in order to prevent portions of the entire structure from falling in a manner whereby debris and portions of the structure will fall into Lake Erie.” Also see my affirmation-in-support-of-preliminary-relief, which, among other things, explains the historic significance of the Freezer Queen building.]

Note:  A few days prior to my clients’ request for a Temporary Restraining Order to halt the demolition, Queen City Landing’s demolition contractor, TOTAL WRECKING, had sent out a press release announcing a “media event” at 1 PM on Friday, Nov. 4, 2016 at the Freezer Queen building to “provide an update on the current phase of the Queen City Landing redevelopment project.” [Click here for the Oct. 31, 2016 media-event flyer.]  It seemed rather peculiar to me the Queen City Landing’s agents would invite the media to assemble at the site of a purportedly unsound and unstable structure.  The event was canceled following my correspondence to the appellate court justice regarding it.

Update 11-21-16:  I received copies of the “clearance-letters-and-demolition-permits” related to demolition of the Freezer Queen facility from the City’s Permit & Inspection Services office on 11/21/2016 in response to my Nov. 11th FOIL request (a remarkably reply).  The papers reinforce my opinion that the project sponsor hastily took steps – following my clients’ Nov. 2nd request for a TRO to halt the demolition – to destabilize the eastern end of the building so that they could advise the appellate court that the entire structure was too unstable and  unsound to halt the demolition process.  Here’s the chronology:  (1) On October 14, 2016, AMD Environmental submitted a one-page “clearance letter” to Queen City Landing’s general contractor and partner, R&P Oak Hill, “for the freezer portion” of the project, following an Oct. 12th inspection, stating that, “asbestos abatement of the freezer portion of the building is considered complete.  A “full report with all sets of analytical” were not provided to R&P Oak Hill.  (2) On October 21, 2016, the City of Buffalo issued a Demolition Permit to Queen City Landing LLC for “Phase I” – removal of “the rear section” of the building ONLY.  The signature line for the Contractor is dated 10/21/2016.  (3) On November 3, 2016, AMD Environmental submitted a one-page “clearance letter” to  R&P Oak Hill, for the “Main Structure Front Production Building,” following an inspection which had taken place that same date, stating that the, “abatement work areas have met clearance standards.”  Once again, a “full report with all sets of analytical” were not provided to R&P OAK Hill.  (4). An amended Demolition Permit adds the following language to its Description of Work section:  “PHASE II DEMO REMAINING 6 STORY FRONT PORTION CLEAN LETTER SCANNED 11/3/16.”  The signature line for the Contractor is dated 11/15/2016.

Note:  Due to its significant role in the history of the industrial Outer Harbor, the Freezer Queen building was eligible for listing on the national register of historic places.

SECOND, in my opinion, Mr. Buchheit and his “silent partners” presented an unrealistic timetable for this sizeable project – a timetable that could only be met if the “hard look” mandated by the State Environmental Quality Review Act [SEQRA] and Buffalo’s zoning laws was circumvented, and no members of the public opposed a 23-story tower on the Outer Harbor. In mid-March 2016, when Buchheit & Co. abandoned their project which had been approved by the City of Buffalo just 3 or 4 months earlier (to add a penthouse floor and re-use the existing Freezer Queen building), Mr. Buchheit told Business First: “I hope we can start this by June. Everyday I am getting more and more excited about the project.”

THIRD, in my opinion, Buchheit and his team of consultants made some unwise strategic choices in an effort to fast-track the approval process, and, by doing so, delayed the proceedings at the City Planning Board. The initial SEQRA documents filed on behalf of the project were wholly inadequate for a project as large and complex as the 23-story tower facility. And the effort by Queen City Landing’s legal counsel to deny that the project site – on the shoreline of Lake Erie, and in the heart of the Outer Harbor – was not located within Buffalo’s Special Coastal Review District (and, thereby, triggering a review of the proposal by the City’s Common Council), showed a lack of due diligence. These procedural oversights added nearly two months to the decision-making process. [See my April 18, 2016 letter-to-the-City-Planning-Board addressing a variety of the procedural issues raised by the Queen City Landing application.]

FOURTH, in my opinion, litigation could well have been avoided had the project sponsor taken the proverbial high road and conceded the need for the comprehensive environmental review called for by SEQRA’s Draft Environmental Impact Statement [DEIS] process. Had the DEIS protocol been diligently followed, the public and the government decision-makers would have had access to meaningful data and information to allow an informed and well-reasoned opinion on whether a 23-story, glass-and-metal tower would adversely impact migrating birds following a globally significant migratory pathway, or the adjacent aquatic habitats, or the existing character of the Outer Harbor parks, walkways, marinas, etc.  A DEIS would also have properly assessed the adequacy of the developer’s proposed mitigation measures.

FIFTH, in my opinion, and, as explained at paragraph “35” of Mr. Buchheits-Nov-14th-affidavit, the proposed project inexplicably remains “in a design and engineering phase,” with “significant decisions to be made on the building foundations, structural steel, finishing materials and operating systems,” as well as “decisions to be made on the attendant inside elements.” One can only wonder the extent of actual due diligence that was performed by the Buchheit team prior to submitting plans to the City of Buffalo in mid-March 2016.  Despite the passage of five-and-a-half months since the May 31, 2016 approval of Queen City Landing’s design and site plan application, so many crucial decisions still need to me made. The magnitude of the project sponsor’s uncertainty about the final details of the project is underscored by Mr. Buchheit’s statement, at paragraph “34” of his affidavit, that “construction costs for the Project are estimated currently between $60 and $85 million.”

SIXTH, in my opinion, the project sponsor’s desire to keep the public and potential residents of the proposed Queen City Landing development ignorant of the extreme winter weather conditions along the Outer Harbor shoreline was demonstrated by its counsel’s efforts to exclude from the court record a one-page document – the vulnerability-study-memorandum submitted by Prof. Margaret Wooster to the City Common Council. That sheet, ultimately made a part of the court record by the lower court judge, includes the following statement:

“The Skyway experienced 156 lane closures between 2003 and 2006, many of these weather related. During extreme weather events where evacuation may be necessary, the Skyway cannot be relied upon as an evacuation route. Outer Harbor residents would need to walk 40 minutes through a heavy industrialized area to reach the nearest community center, church, or school. Lack of amenities such as police, fire stations and grocery stores increases sensitivity, especially during extreme hazard events.  Exposure is also high. A 2014 State Department of Homeland Security and Emergency Services report shows Erie County has high exposure to significant wind and winter weather events due to its proximity to Lake Erie winds, snow and seiche flooding. The Outer harbor is one of the most exposed locations to prevailing weather in Erie County.”

If the Queen City Landing tower does not proceed, Mr. Buchheit and his team will almost certainly blame the pending legal action as the culprit.  An objective assessment, however, would point to the major flaws in the developer’s handling of the project as the primary reason for its demise.

With All Due Respect,

Art Giacalone

P.S. I took a bike ride and some photographs on the sunny and glorious Friday afternoon we Buffalonians experienced on November 18^th (initially, unaware of the debris-in-the-water situation). For those in the community who will miss the historic piece of Buffalo waterfront history that the Freezer Queen facility represents, here are several views of that structure that will soon be extinct: