With All Due Respect

 from WGRZ-TV video 04-08-2016

The author, Arthur J. Giacalone, has been living, practicing law, and challenging authority in Western New York for more than four decades, and currently resides in the City of Buffalo’s Cazenovia Park neighborhood.

The focus of Art’s solo law practice for over 30 years has been land use, development and environmental law.  He has zealously represented groups of residents – and, occasionally, municipalities – concerned about our environment, quality of life and community character.  Art has also assisted taxpayers and residents in challenging tax incentives and other forms of “corporate welfare” routinely doled out by state and local agencies (with little or no accountability) to the politically connected.

A simple truism has been the touchstone of Art’s forty-six-year legal career, and is the fundamental principle guiding this blog: Government agencies and public officials – more than individual citizens or corporate entities – have an obligation to know, obey, and respect our laws.

Over the years, Art has served as a speaker and panelist at a variety of Continuing Legal Education (CLE) seminars and municipal training programs. Topics have included the New York State Environmental Quality Review Act (SEQRA), litigating land use actions from the resident’s perspective, and conflicts of interests of municipal officers and employees. His concerns regarding the pervasive legal and political manipulation of the land use process motivated Art to organize and co-present a CLE program in Buffalo, NY, in June 2012, entitled, “New York Zoning & Development Law Workshop – Is The Process Being Abused – 2 Views of a Real Case.”

The “formative years” of Art’s career were spent working with legal services and public interest agencies, including five years with Prisoners’ Legal Services of New York, and a stint as a “public advocate” in the Western New York office of the State Attorney General.  Art has a J.D. from Harvard Law School, and a B.A. with Highest Distinction in Urban Studies from the U. of Rochester.  He was first admitted to the practice of law in the State of New York in February 1976.

Here’s a sampling of land use and environmental review cases Art has worked on over the years [Note, not updated since 2014]:

1. Ongoing battle to prevent the removal of restrictive covenants and preserve ten century-old structures in the City of Buffalo’s ”Elmwood Village” neighborhood.  (2009-2014).  A developer brought an action in State Supreme Court in 2011 to extinguish restrictive covenants dating back to 1892 that prohibit the construction of structures as a “business establishment,” and the use of structures as a “business establishment,” and require a 25-foot setback from the adjoining street.  Art represents six nearby families who are fighting to preserve the deed restrictions and, more importantly, the character of their neighborhood.  A ten-day trial ended unsuccessfully in March 2014.  The appeal is pending, and the houses still stand.

2. Challenge to Verizon’s data center project in Niagara County’s Town of Somerset (2010-2011). In September 2010, Verizon, the telecommunications giant, proposed construction of Niagara County’s biggest development project in more than a half-century in the rural Town of Somerset, a one-million-square-foot data center on the banks of Lake Ontario. Local officials “fast-tracked” the proposal, and, in just five weeks, the environmental review process was completed, Verizon’s requests for rezoning, site plan approval and zoning variances were approved, and an estimated $614 million in tax relief and other incentives were granted. Art, unsuccessful in challenging the approvals in State Supreme Court on behalf of a 75-year-old widow who owned the farm directly across the road from the proposed data center site, filed a notice of appeal. When the appellate court refused to expedite the appeal, Verizon promptly announced its decision not to proceed with the data center project (confirming Art’s hunch that the company was not committed to the Somerset site). The site continues to be used as productive farmland. [See Rizzo v. Verizon et al., 31 Misc.3d 1206, 2011 NY Slip Op 67051 (AD4 03-11-11).]

3. Challenge to Town of Hamlin’s wind energy law (2008-2009). An out-of-state “wind farm” developer quietly negotiated land lease agreements in 2006 with some major land owners in the Town of Hamlin (Monroe County, NY). That same year, the Hamlin Town Board amended the town’s zoning law to allow construction and operation of meteorological (MET) towers so that potential wind developers could obtain data relevant to wind speed and direction, and two MET towers were promptly erected. A “Wind Tower Committee” (WTC) was created by the town board to determine if wind towers are in the overall best interest of the Town of Hamlin and to develop proposed regulations accordingly. The nine-member WTC (initially described by the pro-wind town supervisor as “a balanced committee with open minds”) conducted 13 meetings and gathered and assessed pertinent information prior to issuing a report recommending that industrial-scale wind turbines be located at least 1,500 feet from roads and property lines and 2,640-foot (half-mile) from residences. In April 2008, without preparing an environmental impact statement (EIS), the Town Board approved a Wind Energy Facility law that disregarded the WTC’s setback and noise standards and allowed construction of 400-foot wind turbines within 600 feet of property lines and public roads and 1,200 feet of residences. The “Hamlin Preservation Group” [HPG], an informal group of property owners, retained Art to challenge the town’s wind law in State court. On January 5, 2009, the Hon. David Michael Barry annulled the Town of Hamlin’s wind law, ruling that the town board violated the requirements of the State Environmental Quality Review Act (SEQRA) when it neither took a “hard look” at the relevant areas of environmental concern, nor set forth a “reasoned elaboration” for its determination that the wind energy law would not have a significant impact on the environment.

 

4. Challenge to City of Buffalo’s approval of a hospital helipad (2004). A hospital in a crowded urban neighborhood applied in 2004 to the Buffalo Common Council for a permit to place a heliport less than 100 feet from the private residences of two of Art’s clients. Rather than conduct a public hearing, as required by the city’s code, and serve as “lead agency” under the SEQRA, the Common Council delegated the public hearing responsibility to its “committee on legislation,” and allowed the City Planning Board to function as “lead agency” to conduct the mandatory environmental review. The Hon. John P. Lane, in a decision reported as Price v. Common Council of City of Buffalo, 773 NYS2d 224 (Supreme Ct., Erie Co. 2004), agreed with Art’s clients that the Common Council had violated both the City Code and SEQRA, and remanded the matter so that public health and safety issues could be adequately reviewed.

5. Challenges to Town of Amherst’s deer bait-&-shoot program (1996-97). A group of Amherst residents retained Art in 1996, and then again in 1997, to fight the Town’s deer bait-and-shoot program. Twice he successfully brought a proceeding in State court annulling the Town’s deer-management program for violating SEQRA’s environmental review process. The first decision, by Justice Barbara Howe, is reported as O’Donnell v. Town Board of Town of Amherst, 656 NYS2d 100 (Sup. Ct., Erie Co. 1997), and holds that the Town’s issuance of a Negative Declaration was irrational because the Town failed to identify how many deer it intended to “harvest”. The second decision, by Justice Frank A. Sedita, Jr., concluded that the bait-and-shoot program must be preceded by an Environmental Impact Statement. At Art’s request, the Appellate Division subsequently dismissed the Town’s belated appeal as moot.

6. Special Counsel to Village of East Aurora re Wal-Mart rezoning (1994-1995). Art served as special counsel to the East Aurora Village Board in 1994-1995 to assist it during its most controversial and complex rezoning matter, the request by a national developer to rezone a large parcel of land to allow construction of a Wal-Mart shopping center.  Local officials and residents feared the adverse impact of the big-box retail center on its historic and vibrant Main Street.  Art’s tasks included the provision of legal advice during the rezoning and SEQRA environmental review process and public hearing, preparation of resolutions and other legal documents, and drafting of a Final Environmental Impact Statement.  The proposed rezoning was denied, and the developer threatened, but did not commence, litigation.

And here’s a partial list of Art’s reported cases (some “winners”/some “losers”):

People V. Thomas, 47 NY2d 37; 25 CrL 1032; 47 LW 2758 (1979). Relying on the doctrine of equitable estoppel, New York’s highest court holds that a D.A.’s misconduct prevents the state from asserting a statutory time bar to defendant’s belated appeal.

In re Reyes, 25 CrL 2559, 48 LW 2185 (Board of Immigration Appeals 1979). State prisoner demonstrates rehabilitation during incarceration, is granted discretionary relief from deportation.

Divine Justice v. Smith, Supt. of Attica C.F., 69 AD2d 1018, 415 NYS2d 1023 (4th Dept. 1979).  In the first appellate court enunciation of a standard for determining the proper relief after the invalidation of a state prisoner’s disciplinary proceeding, the prisoner’s records are expunged and a new hearing prohibited where the prisoner had served his time in solitary confinement and the elapse of time since the alleged misconduct made a due process hearing difficult.

Hurley v. Ward, 549 F.Supp. 174; 32 CrL 1021, 2105 (SDNY 1982). In a statewide class action challenging NY’s abusive strip search policies and practices, district court holds that, except after contact visits, routine anal/genital strip searches violate a prisoner’s due process rights.

Mayerat v. Town Board of Town of Ashford 185 AD2d 699 (4th Dept. 1992). The lower court’s invalidation of a town’s invitation to the state to place its low-level radioactive waste disposal facility in West Valley for failing to conduct an environmental review is reversed.

Young v. Bd. of Trustees of Village of Blasdell, 89 NY2d 846 (1996). NY’s highest court holds that a group of residents were too late to challenge their village’s lease of land for use as a solid waste transfer facility, and too early to challenge the State DEC’s permit process for the facility.

O’Donnell v. Town Bd. of Town of Amherst, 656 NYS2d 100 (Sup. Ct., Erie Co. 1997). Town’s bait-and-shoot program for managing its deer population nullified as violative of SEQRA’s review process where the number of deer the town intended to “harvest” was not identified.

Phelps v. Town Board of Town of Alabama, 174 Misc.2d 889, 667 NYS2d 187 (Sup. Ct., Genesee Co. 1997).   Town’s rezoning of 182 acres of farmland for use as a stone quarry nullified where town board improperly delegated its responsibilities to take a “hard look” at potential environmental impacts to State DEC.

AHEPA 91, Inc. v. Town of Lancaster, 258 AD2d 968 (4th Dept. 1999). Residents successfully intervene and preserve Zoning Board’s denial of an area variance when 4^th Dept. dismisses developer’s CPLR Art. 78 proceeding for failure to comply with commencement-by-filing rules.

Fetzer v. Town Board of Town of Aurora, 270 AD2d 804 (4th Dept. 2000). Appellate court reinstates complaint and recognizes taxpayers’ standing to challenge town’s grant of charitable tax emption to an upscale retirement community.

Price v. Common Council of City of Buffalo, 773 NYS2d 224 (Supreme Ct., Erie Co. 2004).  The Common Council’s approval of a hospital heliport less than 100 feet from residences is vacated, and the matter is remanded so that public health and safety issues could be adequately reviewed, where the Common Council had delegated its public hearing responsibility to its “committee on legislation”, and had allowed the City Planning Board to function as SEQRA “lead agency” for performance of the mandatory environmental review.

Affinity Elmwood Gateway Properties v. AJC Properties, 113 AD3d 1094 (4^th Dept. 2014).  Fourth Department, concluding that IAS court “abused its discretion” when it barred a lawyer in a civil action from communicating with a non-party/non-witness corporation, vacates the offending CPLR 3103 protective order.