[Note: It appears that the Buffalo News has chosen not to publish a piece that I submitted on August 2, 2022 for use in its “Another Voice” column. I am posting that op-ed submission, with minor editing, below.]
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The past few days have been noteworthy (in my mind, at least) for the recognition being shown to the culture and history of Western New York’s first inhabitants, the members of the Haudenosaunee Confederacy – the nations of the Seneca, Cayuga, Onondaga, Oneida, Mohawk, and Tuscarora – and their ancestors. [I admit my cultural ignorance, and offer this link as a useful primer reprinted at the website of the Syracuse Peace Council, “Understanding Haudenosaunee Culture.”]
The July 18, 2022 print version of the Buffalo News includes an article by Mark Sommer entitled, “WNY exhibits celebrate Haudenosaunee culture.” [Here’s a link to the on-line version under the headline, “3 WNY exhibits celebrate Haudenosaunee art, culture, history.”] Mr. Sommer reports on: (1) The Buffalo Maritime Center’s “The Haudenosaunee and the Erie Canal,” at the Longshed at downtown Buffalo’s Canalside; (2) The Buffalo History Museum’s “Haudenosaunee Resurgence: Marie Watts, Calling Back, Looking Forward“; and, (3) An art exhibition at SUNY at Buffalo’s Center for the Arts and Anderson Gallery, which celebrates the 50th year of UB’s Indigenous Studies program by displaying the work of around four dozen artists of the Haudenosaunee Confederacy.
Three days earlier, July 15, I witnessed something gratifying on a pleasant summer evening in South Buffalo’s Cazenovia Park. As the Buffalo Philharmonic Orchestra’s “Olmsted 200 Celebration” concert was about to begin, Stephanie Crockatt, executive director of the Buffalo Olmsted Park Conservancy, did something that had not previously been done at a BPO concert or BOPC event. She read the following statement to the assembled crowd:
Land Acknowledgement for BPO Concert at Cazenovia Park | July 15, 2022
Before we begin this concert, we would like to respectfully acknowledge
that the land on which we gather is part of the aboriginal territory of the
Seneca Nation and the Tonawanda Seneca Peoples. Their continued
presence on this landscape is affirmed by The Dish with One Spoon Treaty of
Peace and Friendship, and the 1794 Treaty of Canandaigua, between the United States Government and the Six Nations Confederacy. This region is both the traditional and the current home of the Seneca, Haudenosaunee, Erie, Wenro, and a host of
countless communities over time.
This very site where we listen to the Buffalo Philharmonic Orchestra,
Cazenovia Park, once held the Seneca Town of Buffalo Creek. A few blocks
away from Cazenovia Park at Buffum Street, is Seneca Indian Park, originally
the Seneca Indian Cemetery. The Buffalo Creek Treaty of 1842 eliminated
the Buffalo Creek Reservation. We sincerely hope that by recognizing the
historical wrongs that have taken place here and far, we will begin to try
understanding and healing the traumas that have been inflicted on the
Indigenous community, and to celebrate their rich culture and time on
Turtle Island. Please join us in showing gratitude for this opportunity to
share music and the natural environment of this beautiful land today.
These words of acknowledgement and respect were most fitting given both the location of the concert – the heart of the Buffalo Creek Reservation – and the BOPC/BPO’s stated desire to present “music inspired by nature and nods to the rich tapestry of cultures that make up the Buffalo community.”
A sliver of the crowd at the BPO’s Olmsted 200 Celebration, Cazenovia Park, 07/15/2022.
“Seneca Indian Park” on Buffum Street, site of an ancient Indigenous burial grounds.
The introductory statement – if my understanding is correct – came to timely fruition thanks to the receptiveness of the BOPC’s executive director, Ms. Crockatt, the focused efforts of BOPC’s marketing communications specialist, Zhi Ting Phu, and the guidance from Joe Stahlman, director of the Haudenosaunee cultural center in Salamanca, NY (known officially as the Seneca-Iroquois Museum).
My thanks to all involved.
With All Due Respect,
Art Giacalone
On July 3, 2022, the New York Times published an article titled, “Buffalo’s ‘Other Story’ Is Told in Redevelopment and Growth,” under the byline of C.J. Hughes. That piece opened as follows:
Buffalo was riding a decade-long economic turnaround when a racially motivated attack by a gunman killed 10 people in May, overshadowing the progress. While the city grieved, it also had to reckon with unflattering portrayals of the East Side, the impoverished neighborhood where the massacre took place.
Those harsh takes tell only part of the story, say residents, business owners and city officials. Now, they are determined to put the focus back on the recovery.
[You can try accessing the article here or here NYT’s July 3 2022 article]
Unhappy with the slant of the article, I sent the Times a letter-to-the-editor on July 5. Anyone who visits this blog will realize that it was not easy for me to restrict my writing to 175 words or so, but I did my best. Regrettably, the eminent publication chose not to share my comments with its nationwide readership. [In contrast, I was pleased to see that the July 7, 2022 print edition of The Challenger Community News included my letter. My sincere thanks to its editor, Al-Nisa Banks.]
The reach of this blog is, I will humbly admit, a tad less expansive than that of the New York Times. Nonetheless, I feel the need to share my comments. Here’s my letter:
July 5, 2022
Buffalo’s Poverty and Segregation persists despite “Redevelopment and Growth”
Dear Editor,
The July 3, 2022 article touting Buffalo’s “Other Story” of redevelopment and growth reads like an ad campaign by Mayor Byron Brown and the local business community. In fact, Buffalo’s so-called “economic renaissance” eludes much of the city’s residents:
– The 2020 U.S. census shows that Buffalo has the second-highest childhood poverty rate among major American cities, 43.4%. In 2016, it was “only” the seventh worst.
– Overall, 29% of Buffalonians live in poverty, nearly three times the rate of our nation as a whole. 35% of Black city residents are below the federal guideline.
– Nationwide, 64% of residents own their homes. In Buffalo, that rate has fallen from 45% in 2010, to 40.7% in 2019.
– Black students fail to earn a high school degree at a rate nearly twice that of whites, 17.6% to 9.3%.
– Although Blacks account for 35% of Buffalo’s population, they make up only 6% of the balance of the metropolitan area. 85% of Blacks live east of Main Street, the near-impenetrable racial dividing line.
That’s the “Real Story.”
With All Due Respect,
Art Giacalone
P.S. If this posting was of interest to you, I urge you to read Jim Heaney’s excellent May 17, 2022 report, “Buffalo Is Segregation City.” [Jim was not restrained by a 150 – 200 limit.]
I miss Don Boswell. To me, the on-air persona of the chief executive of a public media organization ought to be soft-spoken, cerebral, and dignified.
Mr. Boswell made me proud to be a (modestly) sustaining member of WNED-PBS, WBFO and WNED Classical. Sadly, his successor all too often makes me cringe, reminding me more of an annoying salesperson or carnival barker than a public broadcasting executive.
The press release announcing Mr. Boswell’s retirement cautioned fans that “finding Don’s successor is no small task.” They weren’t kidding. Following a national search, Buffalo Toronto Public Media chose, not a person with a distinguished public broadcasting career, but Tom Calderone, a “media and entertainment executive” who previously held leadership positions with Spotify, VH1, and MTV.
Mr. Calderone – who has been at the helm of WNED/WBFO since August 2021 – was touted as “an expert in understanding media audiences,” as someone who knows the importance of “keeping the attention of audiences who have so many choices for what to watch or listen to.” Nonetheless, in less than ten months, Tom has demonstrated that he certainly does not understand this devoted audience member.
Since Tom took the helm of WNED/WBFO in August 2021, WBFO has drastically cut its Blues programming, and ended its streaming of an eclectic jazz platform called JazzWorks (without any pre-notice).
But, most distressingly, BTPM’s President/CEO has me rushing to turn off my TV or radio whenever I am subjected to his voice or image pitching the “Great British Telly Tour” – a one-week guided tour this fall of the grounds of various British television programs. “Passionate viewers” and “likeminded travelers” are not only promised accommodations at “deluxe hotels” and dining at “the best restaurants,” they will be hosted by – surprise – none other than Tom Calderone himself!
What I find most offensive is not Tom’s corny jokes and clownish “Pip! Pip!” It’s the repetitive bombardment of the local public media audience with a promotional opportunity available to a mere 30 individuals. In a community with Buffalo’s astonishingly high poverty rate, the “telly tour” traveler must be affluent enough to afford accommodations starting at $4,395, airfare to and from England, and a host of other personal expenses. [See Great British Telly Tour BTPM Brochure.]
But you need more than a bundle of discretionary cash to pal around London and beyond with Tom C. You must be physically capable of extensive walking, maneuvering numerous steps, and handling stops and hotels devoid of elevators.
It appears that BTPM realized that the tone and upscale nature of the promotional campaign could be considered offensive following the May 14th tragedy at the Jefferson Avenue Tops market. For a fortnight or so, it disappeared. But Mr. Calderone and his antics are back on air. [After all, Tom C. isn’t going to miss out on this BTPM perk.] And I’m back to turning off my favorite shows (for at least a minute).
With All Due Respect,
Art Giacalone
P.S. And, please, don’t get me started on Buffalo Olmsted Park Conservancy’s incredibly tacky and ill-conceived “FLOmingos Guinness World Records Attempt,” or the Erie Canal Harbor Development Corporation’s ridiculous decision to devalue Buffalo’s Outer Harbor by subjecting its inhabitants and visitors to the new Queen City Super Flea.
At first glance, the dark brown, well-kept century-old house on the corner of Indian Church Road and Parkview (a misnomer) Avenue in South Buffalo appears welcoming. But the ever-changing display of flags and signage in and around its front porch suggests something quite different if you happen tobelieve that all human beings have inherent dignity. It appears that our humble, primarily working-class, increasingly diverse neighborhood (just steps from Seneca Street and Cazenovia Park) has its own locally-grown white supremacists.
The in-your-face flag waving at 40 Indian Church Road has been a topic of discussion at this blog over the years. See Buffalo must address homegrown bigotry, Betsy Ross 13-Star Flag at South Buffalo residence confirms Colin Kaepernick’s concerns, and Too Many WNY “Teachable Moments.” This post will highlight, in no particular order, what I have learned as a result of my observations and curiosity the past 6 or 7 years.
First, in the aftermath of the tragic, racially-motivated mass killings at Buffalo’s Tops supermarket on May 14, 2022, foremost on some minds was a fear of losing their military weaponry:
Second, Confederate flags come in a variety of designs. At times, my neighborhood, Buffalo-born “rebels” show off two Confederate battlefield flags, and, when the mood overcomes them, three different symbols of the Confederacy: the familiar Confederate battle flag, the so-called Blood Stained Banner, and the Stars & Bars:
Third, the white nationalist movement has embraced a variety of historical symbols to express their longing for a day when slavery was legal and the federal powers insubstantial, such as the “Liberty” flag, the “Don’t Give Up The Ship” banner, the “Gadsden flag” warning “Don’t Tread On Me,” the Bonnie Blue flag, and, of course, the so-called “Betsy Ross flag”:
[Note: The small, hand-size flag to the left of the “Liberty” flag is the Imperial German flag, used by some German neo-Nazis as a substitute for the Nazi flag.]
Fourth, nothing says “Merry Christmas” like a Nativity-themed flag teamed up with the Confederate battle flag:
Fifth, likewise, there’s no reason not to envision the Easter bunny hop-hop-hopping down the white supremacy trail:
Sixth, if there comes a time when you fear that your “COME AND TAKE IT” banner – with its silhouette of a military-style assault weapon – and “Gadsden flag” – a historical American Revolution flag with a yellow field depicting a coiled rattlesnake and the words “DON’T TREAD ON ME – are, perhaps, too subtle, you can buy and display a sign with an image of cross-hairs proclaiming, “WARNING – IF YOU CAN READ THIS, YOU ARE IN RANGE”: (see bottom left corner of the photo below)
Seventh, it was foolish of me to think that the City of Buffalo Common Council’s South District Member, Christopher P. Scanlon, would acknowledge receipt of my May 18, 2022 email to him. Perhaps he was embarrassed by my request that he put into action his public statement – two days after the mass shooting on Buffalo’s Jefferson Avenue – that we must all be willing to have “uncomfortable conversations” about racist comments and behavior. It seemed to me that a discussion with the flag wavers at 40 Indian Church Road would be a good place to start. [See my Email to Chris Scanlon on 05-18-2022.]
With All Due Respect,
Art Giacalone
UPDATE: On May 19, 2022, photos I took on May 17, 2022 were added to the original post, as well as an addendum with images of memorials in honor of the victims of the May 14, 2022 tragedy.
[Marquee of Apollo Media Center.]
Note: This blog has never posted a piece written by an author other than myself. Today I make an exception. Lorna I. Peterson, PhD, is a retired library science professor with a deep knowledge and love for the community in which the May 14, 2022 mass shooting incident occurred, at the Tops supermarket located at 1275 Jefferson Avenue, Buffalo, New York. Although I worked at the 1490 Jefferson Avenue office of Prisoners Legal Services of New York when I arrived in Buffalo in 1976 (decades prior to the construction of the Tops), and have had the privilege of working the past eight years or so alongside community members fighting gentrification of the nearby Fruit Belt neighborhood, I cannot begin to provide the informed perspective reflected in Dr. Peterson’s message sent on May 15 to her colleagues at the Black Caucus American Library Association (BCALA). I thank Lorna for consenting to this posting.
From: Lorna Peterson
Date: Sun, May 15, 2022 at 8:36 AM
Subject: message from Buffalo
To: BCALA Listserv <bcala-listserv@bcala.org>
Date: Sun, May 15, 2022 at 8:36 AM
Subject: message from Buffalo
To: BCALA Listserv <bcala-listserv@bcala.org>
Dear Colleagues,
Many of you have no doubt read, heard, or viewed information about the shooting at a grocery store in Buffalo NY. You might be interested to know that across the street from the small shopping plaza is a branch public library, the Merriweather Library of the Buffalo & Erie County Public Library. I write this to give our community the sense of the neighborhood that Payton Gendron targeted and chose to drive for three hours from his rural community to kill Black people who live in a city.
[Entrance of Frank E. Merriweather Jr. Branch Library. Original library building can be seen in the distance across the street.]
The grocery store is in a neighborhood where I have been doing the most of my volunteer activities while in retirement. In fact, a community activist with whom I collaborate, called me shortly before 3 PM Saturday, May 14, to say that there was an active shooter at the Tops Market. She lives across the street from the store and was just walking over to get bread. She is okay.
Located in the neighborhood called Cold Spring, and the [city council] district called Masten Park, I live just one mile to the west from the area. I have shopped at that particular Tops Market and I frequent the nearby coffee shop Golden Cup and also the branch public library. I once had an exhibit mounted there about the Fruit Belt neighborhood and a housing development called McCarley Gardens. Nearby is the Apollo Media Center where the press conference was held. During the broadcast, the gleaming, colorful tiles, hand painted by children, provide a backdrop that speaks to the innocence and ordinariness of a peaceful, active community just trying to live their lives. And across the street from the old theater, now a media center, is one of our Black newspapers, The Challenger. When the local power elites were pushing for the building of a medical corridor that required the destruction of the Fruit Belt community that I advocate for, I started calling the corner of Jefferson and East Utica “the communication corridor” because it has the public library, a Black newspaper publisher, and the Apollo theater/public access media center.
[Multi-use building at the northeast corner of Jefferson and E. Utica, housing, among others, the Golden Cup coffee shop, The Dance Camp, Open Buffalo, Premier Cigars, Group Ministries Inc., and The Challenger Community News.]
[Entrance to Golden Cup coffee shop at 1323 Jefferson Ave.]
[Entrance to The Dance Camp dance studio, 1325 Jefferson Ave.]
[Entrance to The Challenger community newspaper, 1337 Jefferson Ave.]
[Entrance to Apollo Media Center.]Racial demographics for the area are 80% Black/African American. It is only lately that the area is below 90% Black as gentrification on the West Side of the City of Buffalo has seen a migration of the Hispanic population to the East Side of Buffalo. Buffalo speaks of itself as a quadrant of East Side, West Side, North Buffalo, South Buffalo. These are not suburbs, boroughs, or separate municipalities, they are just folk designations for sections of one city, the City of Buffalo NY.
The corner of Jefferson Avenue and East Utica Street is a hub of cultural, commercial, public transit, and residential activity. Disinvestment and population loss are part of the neighborhood as well as the entire Buffalo–Niagara Falls region. But it certainly does not define it.
[The corner of Jefferson Ave. and E. Utica Street, looking south.]
If you are interested and want to know more about this neighborhood and my city, some citizen curated sites are: Buffalo History Channel: https://www.youtube.com/c/buffalohistorychannel by Doug Ruffin: https://burchfieldpenney.org/art-and-artists/people/profile:doug-ruffin/ Bartel Miller’s Buffalo, A Toast to the Town https://www.facebook.com/groups/855505714485399// and Buffalo and Western New York African American History Group https://www.facebook.com/groups/BuffaloandWesternNewYorkAfricanAmericanHistory/
Also, for New York State, once people think beyond New York City, the entire state somehow gets called “Upstate.” This diminishes the geographic expanse and geological diversity of the state. Buffalo is in the far western portion of the state– we are closer to Cleveland, Pittsburgh, and Detroit, than we are to NYC. Buffalo is just a bridge away from Canada– the Peace Bridge which takes you to Fort Erie, Ontario, Canada.
peace,
lp
Lorna Peterson, Buffalo
ADDENDUM of photos taken on May 17, 2022:
[ I Leave Peaceprints markers remembering each of the ten human beings who lost their life on May 14. Note: “On Good Friday 2006, Sister Karen Klimczak’s life was tragically cut short. Sister Karen’s tragic passing in April 2006, sparked the ‘I Leave Peaceprints’ movement in Buffalo and the surrounding areas. The peace dove has become a message that has been carried on with much love and dedication.]
Okay. Perhaps I seemed a bit overly confident with yesterday’s posting, Signs of Spring 2022 in South Buffalo. And, just maybe, I tempted fate by whimsically suggesting that even the verdant meadow was whispering, “Yes, spring is here.” [I sincerely apologize for twice saying something that corny.] Worse of all, it now appears rather unwise to have gently dissed the Buffalo News’ use of the cliche “pretty in pink” (when referencing the cherry blossoms at the Delaware Park Japanese Gardens) by ending my April 26th post with the phrase: “Wonderful in white.”
I/We paid for all of my April 26th lapses with the wintry reprise that greeted us this morning. The verdant meadow wasn’t quite as green:
And the golden bush lost – at least, temporarily – much of its sparkle:
Nonetheless, I still think that Cazenovia Park looks wonderful in white:
And, I’m fairly confident that spring (or, as the Italians say, La Primavera) will ultimately prevail in this annual battle of the seasons.
With All Due Respect,
Art Giacalone
P.S. When I posted my April 26th photos, I hadn’t yet visited the Japanese Gardens adjacent to Buffalo’s History Museum. I made a brief visit to see the cherry blossoms (post-Monday’s substantial rains) yesterday evening on my way to my beginners Italian language class at Centro Culturale di Buffalo (at the corner of Delaware and Hertel avenues). My biggest takeaway was a sense of disappointment – not with the blossoms on display – but with the apparent behavior of many members of my own species. Buffalo Olmsted Parks Conservancy should not have to plant dozens of the following signs throughout the garden:
I haven’t yet journeyed to Buffalo’s northern environs in search of springtime blossoms, but two Buffalo News photographers have. Derek Gee and Mark Mulville share their lush “pretty in pink” photos from Delaware Park’s Japanese Gardens in the April 26th print version of the newspaper.
My “gallery” is predictably a bit less splendid, lacking Messrs. Gee and Mulville’s professional eye and equipment. But I thought you might enjoy some of the images that caught my eye earlier this week as I walked and bicycled through nearby South Buffalo neighborhoods.
This first beauty (I’ll let you all identify the species) greeted me on Indian Church Road, just steps from my Oschawa Avenue home:
Minutes later, Cazenovia Park – my favorite Olmsted gem – offered these vividly reassuring signs that winter is behind us:
And, somehow, even the verdant meadow beyond the leafless branches seemed to whisper, “Yes, spring is here”:
A day later, my bicycle provided the means to easily check out what was happening a mile or two from home on McKinley Parkway. I wasn’t disappointed:
As I pedaled down Lorraine Avenue on my way home, I couldn’t resist taking a photo or two of a symbol a bit less natural, but just as inspiring as spring blossoms. Adorning the lawn at P.S. 72 (where I substitute taught a few times in 2018), is this monument to the school’s anti-bullying campaign:
I also lacked the self-control not to stop – at the edge of Cazenovia Street and Caz Park’s Warren Spahn Way – to capture these images:
Wonderful in white!
With All Due Respect,
Art Giacalone
P.S. Today is Frederick Law Olmsted’s 200th birthday. His parks, parkways, and landscapes have done so much to enrich the lives of the inhabitants of our nation’s cities. What a remarkable legacy!
March 2022 is about to step aside to make room for April. In my South Buffalo neighborhood – that is, the stretch of Seneca Street and Indian Church Road graced by its proximity to Cazenovia Park – St. Patrick’s Day is finally far enough in the rear view mirror to be a mere glimmer in my neighbors’ twinkling blue eyes.
From my perspective, it’s time for local officials, businesses and property owners to set aside the “happy talk” about community pride. It is time to actually demonstrate self-esteem and affection for the neighborhood and its residents by addressing the sights and defects that adversely impact its aesthetics and safety.
Here are several suggestions – each found within two blocks of the Seneca Street/Indian Church Road intersection – for immediate spring cleaning, maintenance or repair. [Unless otherwise noted, the accompanying photos were taken by me on March 31 during my morning walk.]
No. 1. Fix the broken pedestrian signal at Seneca and Indian Church Road. For at least a year now, anyone wishing to cross Seneca St. from Indian Church Road (or vice versa) has been forced to navigate this busy, tricky corner without the assistance of the walk/don’t walk signal. The push button on the west side of Seneca Street dangles uselessly from the pole, and the electronic signal is blank.
No. 2. Repair or replace the decorative trash bin next to Shea’s Seneca. The motto is excellent – “Whatever is begun in anger ends in shame.” [Will Smith’s behavior at this past weekend’s Oscars ceremony is a perfect example] But its decrepit appearance inspires one to look the other way rather than give these thought-provoking words consideration.
No. 3. Attractively address the broken storefront window and facade at Seneca and Cazenovia Streets. For well over a year now, pedestrians, cars and buses passing by, and nearby residents (including those at the upscale apartments directly across the street), have been forced to look at a markedly haphazard and unprofessional effort to enclose a vandalized storefront window. The City of Buffalo’s Online Assessment Roll System (OARS) lists the owner of this property as Hook & Ladder Development LLC at 2111 Seneca St., Buffalo, NY 14210.
No. 4. Find a way to restore the vandalized, weathered wooden sculpture of Red Jacket at Cazenovia and Seneca Streets. The following photos were taken last year and shared with various public officials in hopes of inspiring an effort to show due respect for the Seneca statesman Red Jacket. The condition of the statue has continued to deteriorate.
A brief diversion. My morning observations included more than eyesores. While walking through Cazenovia Park, I did take the time to admire this naked and gnarly masterpiece:
No. 5. Remove or tastefully beautify the rusting, peeling retractable “shield” at 2348 Seneca Street. If you are unfortunate enough to depart Cazenovia Park at its Seneca Street exit, wait for or disembark an NFTA No. 15 bus, or drive down Seneca Street just blocks from the West Seneca/Buffalo border during or before the morning rush hour, you are assaulted by the image of a rusting, peeling sight. It has been in this condition for years. The City of Buffalo’s Online Assessment Roll System (OARS) lists the owner of this property as Donald P. King, 2348 Seneca St. Buffalo, NY 14210.
I am hoping that the individuals, officials, and businesses in the position to ameliorate the conditions noted above will promptly and thoughtfully take action. If you agree, reaching out to the following officials may help:
City of Buffalo Council Member Christopher P. Scanlon, 65 Niagara Square, Room 1401, Buffalo, NY 14202; (716) 851-5169; cscanlon@city-buffalo.com.
City of Buffalo Streets Commissioner Michael J. Finn, 65 Niagara Square, Room 502, Buffalo, NY 14202; (716) 851-5636; mfinn@city-buffalo.com.
State Assemblyman Pat Burke, 1074 Union Road, West Seneca, NY 14224; (716) 608-6099; burkep@nyassembly.gov.
State Senator Tim Kennedy, 37 Franklin St., Suite 550, Buffalo, NY 14202; (716) 826-2683; kennedy@nysenate.gov.
Thank you.
With All Due Respect,
Art Giacalone
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
With All Due Respect 