I have immense admiration for Buffalo environmentalists and Outer Harbor advocates Margaret Wooster, Jay Burney and James E. Carr. They have decided to continue their effort to utilize the zoning and judicial processes to stop Queen City Landing, LLC’s plan to construct a 23-story tower complex at the former Freezer Queen site.
But I will no longer be their legal representative. After decades of public hearings and court proceedings – where I have attempted, with mixed results, to convince public officials to faithfully comply with the letter and spirit of New York’s development and environmental laws – I have decided to take a break from the solo practice of law. [Please note, I am not ready to call it retirement.]
On April 12, a “notice of appeal” was filed on behalf of Margaret, Jay and Jim in the Erie County Clerk’s office. It expresses their intention to appeal the March 12, 2018 dismissal of their lawsuit – by the Hon. Catherine Nugent Panepinto – to the Appellate Division, Fourth Department, the state’s intermediate appellate court in Rochester.
As addressed in detail in prior posts here [for example], the mixed-use development proposed by Queen City Landing (QCL) is located in the heart of Buffalos Outer Harbor, adjacent or within walking distance to marinas and significant wildlife habitats (including the Small Boat Harbor, Times Beach and Tifft Nature Preserves), popular fishing spots, and public parks and walkways, such as the Greenway Nature Trail, Gallagher Beach and Wilkeson Pointe. The site (referred to as “Subject Parcel” in the image below) lies in a 100-year floodplain along Lake Erie’s ecologically fragile coastline.
I join in the belief held by my “former clients” that the setting chosen by developer Gerald Buchheit and his partners at R & P Oak Hill for a 23-story, glass-and-steel tower is unique, environmentally vulnerable, and utterly inappropriate for a massive residential/mixed-use development. Not only does the site lie in a floodplain and along a globally significant migratory bird flyway, there are hidden concerns. QCL’s geotechnical engineers have determined that the project’s “heavy foundation loads” – a 305-foot tower and large parking ramp – would be perched on “soft to very soft clays” with “very marginal (weight) bearing capacity” that extend to bedrock 70 to 75 feet below the existing ground level. [Note: QCL chose not to make public its consultant’s May 2016 “Geotechnical Evaluation Report” until after the project had received its approvals – without preparation of an Environmental Impact Statement – from the city Planning Board and Common Council.]
And the nature of the subsurface soils is not the only source of potential environmental and “constructability” issues at the former Freezer Queen site. QCL’s engineering consultants proved prescient when making the following observation in their geotechnical evaluation report: “Lake Erie is also prone to a seiche effect from a strong sustained wind event out of the southwest. During these events the water levels in the northeastern end of the lake can rise several feet.” As aptly described and caught on videotape by Jay Burney on April 4, 2018, a historically-moderate seiche occurred along the Outer Harbor, elevating water levels an estimated 5 to 8 feet, and inundating a substantial portion of the proposed tower site.
[Above photo, showing seiche’s impact on QCL site on April 4, 2018, courtesy of Jay Burney.]
I’d be curious to see an objective market-feasibility study for QCL’s proposed 200-unit residential tower. No matter what Mr. Buchheit and his agents suggest at public hearings, I find it hard to imagine a strong interest in luxury apartments at a site that, for much of the year, is frozen, wind-slept, threatened by floods, and far from most urban amenities. Those desiring a residence that is simultaneously close to the Lake Erie shore and high above the mere mortals below might be better off patiently waiting for a condominium or apartment located downtown in Buffalo’s tallest building, One Seneca Tower.
With All Due Respect,
P.S. Inquiries concerning the appeal should be addressed to Margaret Wooster at (716) 833-5892 or by email at firstname.lastname@example.org.