City of Buffalo

Proposed Linwood Lafayette UDAA shamelessly distorts intent of law

Posted by Arthur J. Giacalone on April 2, 2019
Posted in: Byron Brown, City of Buffalo, Corporate Welfare, Political Contributions. Leave a comment

Some might call the proposed formation of the Linwood Lafayette Urban Development Action Area (UDAA) – at the former Millard Fillmore Gates Hospital campus – a creative use of an urban renewal agency’s powers.  I see it as a shameless distortion of a tool intended to correct conditions in municipally-owned slums and blighted areas.

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Article 16 of the State’s General Municipal Law (GML) is entitled “Urban Development Action Area Act.”  Its “policy and purposes” section recognizes the existence of “municipally-owned areas” – which were acquired through the urban renewal process, through condemnation procedures, or tax foreclosures – and which are slum or blighted, or are becoming slum or blighted areas.  In order to ameliorate the blighted conditions in these municipally-owned areas, Article 16 gives cities such as Buffalo broader rights and powers to offer enhanced tax incentives and financial aid to encourage business enterprises to undertake corrective projects.

Buffalo’s Common Council has designated the Buffalo Urban Renewal Agency (BURA) as the agency authorized to carry out the purposes and provisions of GML Article 16.  According to its mission statement, BURA strives to “create quality and vibrant living in Buffalo New York through neighborhood driven development projects.”  Its website expressly encourages Buffalo residents “to be involved with BURA,” and states that its “goal is quite simple:  to become a resource and partner to City residents, community development agencies, and staff in seeking results to the most pressing issues facing the Buffalo area.”

Under its current leadership, however, BURA is pursuing a different goal:  to provide corporate welfare to financially-troubled private developers, in this instance, TM Montante Development and the Montante Group Companies.

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BURA is controlled by Mayor Byron W. Brown.  As Mayor, Brown sits as chair of BURA’s nine-member board of directors.  Three of the board’s members hold high-level positions in the Brown Administration (and, therefore, serve at the pleasure of the Mayor):  the Executive Director of the City’s Office of Strategic Planning (Brendan R. Mehaffy), who also functions as BURA’s Vice-Chairman; the City’s Corporation Counsel (Timothy A. Ball, Esq.); and, the City’s Commissioner of Administration and Finance (currently, Donna Estrich).  The Mayor also hand-picks two citizen board members, ensuring his command over a majority of the 9-person board.

Neither the process used to prepare the proposed Linwood Lafayette UDAA, nor the substance of the proposal presented to the City of Buffalo’s Planning Board and Common Council, complies with the requirements, purposes, or intent of either the Urban Development Action Area Act, or BURA’s own mission statement:

Deficiency No. 1.  The official request to create the Linwood Lafayette UDAA, submitted to the City’s Common Council and Planning Board in February 2019, states that it is BURA that “respectfully requests” the designation.  However, a review of the agendas and minutes of the BURA Board of Directors – from March 2019 back to June 2018 – discloses that the BURA’s governing body never considered, much less approved, the request to proceed with the Linwood Lafayette UDAA designation.  [So much for transparency and neighborhood-driven development projects.]  Had the topic been placed on the board of directors’ agenda, its members (including three Common Council members), the media, and, most importantly, the public, would have known in advance of this “creative” use of GML Article 16’s incentives and financial aid.

[Note:  It appears that the “permission request” filed with the Common Council was prepared by Scott Billman, BURA’s Counsel. Frankly, I would not be surprised if Mr. Billman was merely following instructions from the head of the Mayor’s Office of Strategic Planning (and, BURA Vice-Chair), Brendan Mehaffy.]

Deficiency No. 2.  No objective, rational observer would describe the community within which BURA proposes to create the Linwood Lafayette UDAA as a slum or blighted area.  Even the intended beneficiary of the proposed UDAA – TM Montante Development – proclaims that its proposed “Lancaster Square” project is “located in a premier urban, mixed-use neighborhood that the American Planning Association has selected as one of the 10 best neighborhoods in America.”

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Deficiency No. 3.  The “policy and purposes” of Article 16 is to provide incentives to eliminate slum or blight, or prevent slum or blight, in “municipally-owned areas” which were acquired pursuant to urban renewal powers, condemnation powers, or tax foreclosures.  [See GML Section 691.]  Article 16’s focus is not privately-owned real property.  Despite this fact, BURA’s request for UDAA designation is premised on “the present condition of the privately owned real property in the area [that purportedly] impairs the growth and development of the City of Buffalo municipality because the area is at significant risk of further deterioration and blight …”

[Note:  To the extent that the existing “blight” is created by demolition debris not promptly removed by TM Montante, Common Council President and Ellicott District Member Darius Pridgen and other elected and appointed officials must be asked:  Why haven’t you insisted that the City’s inspection office compel the property owner to comply with Section 103-38(E) of the City of Buffalo Code?  That provision requires removal of “material and debris resulting from demolition” within 5, 10, or 45 days, depending on the height of the demolished structure.] 

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Deficiency No. 4.  Consistent with Article 16’s policy and purposes, an area designated as an “urban development action area” must be “appropriate for urban development,” and at least 60% of the UDAA must consist of city-owned real property.  In a tortured effort to meet the 60% city-owned-real-property requirement of Article 16, the “creative” authors of the permission request have drawn the boundary lines of the UDAA to artificially include the entire width of adjacent public roads (that is, Delaware, Lafayette, and Linwood avenues), and historic Gates Circle.  These public rights-of-way were undoubtedly not acquired through urban renewal powers, condemnation, or tax foreclosure procedures.  And, in this context, they certainly cannot objectively be treated as areas “appropriate for urban development”:  TM Montante is not proposing to “develop” these public streets and adjacent traffic circle.  Additionally, even the site’s vacant parking garage, while clearly city-owned real estate and (it would appear) deteriorating, was built and operated for decades as a municipal parking ramp, and, presumably, is not the product of a recent condemnation or tax proceeding.  [See Buffalo Courier Express article from 1975: BCE19750122 re parking ramp .]

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Deficiency No. 5.  Article 16 envisions the use of enhanced financial aid and tax relief as incentives to encourage otherwise hesitant business enterprises to participate in programs to correct blighted and deteriorated conditions on city-owned property.  The UDAA program is not intended to bail out a private developer who enthusiastically proposes and commences a massive development project, but then, in the words of the Buffalo News, “needs a new partner and financial help to make the project work.”  The Mayor-controlled BURA and Office of Strategic Planning have improperly and unwisely chosen to use BURA’s powers and resources, not to stimulate neighborhood-driven development, but to bail out a well-heeled, politically-connected developer.

[Note:  Although Darius Pridgen has only received a pedestrian $200 political contribution from TM Montante Development, in the past five years TM Montante and the Montante Group (which includes TM Montante and Montante Construction) have made generous contributions to:  Mayor Byron Brown ($1,000),  Councilmember Joel Feroleto ($1,000), State Assemblyman Sean Ryan ($1,000), State Senator Tim Kennedy ($1,850), and State Assemblywoman Crystal Peoples ($3,500).]   

Buffalo residents deserve an agency that truly focuses on “neighborhood driven” projects – rather than developer-driven handouts – and that works to benefit the public, rather than politically-astute development companies.

So, Buffalonians, get involved, and demand that your elected Common Council members deny BURA’s requested to designate the proposed Linwood Lafayette UDAA.

With All Due Respect,

Art Giacalone

P.S.  The Linwood Lafayette UDAA proposal is not the first time that Mayor Brown’s BURA has been involved in activity that appears to me to not further the interest of the public.  See for example Op-Ed – The Mayor The Carlo and BURA sent 03-06-13.

P.P.S.  Likewise, the Linwood Lafayette UDAA proposal is not the first time Buffalo’s “leaders” have embraced an unworkable and inappropriate plan for this site.  See Kaleida Health’s 7-12-2013 press release announcing Chason Affinity’s failed effort to recruit a veterinary school to the former Millard Fillmore Gates Circle campus: Kaleida press release 07-12-13 re Gates Circle

 

Joel Feroleto serves business donors, hurts Elmwood Village and its residents

Posted by Arthur J. Giacalone on March 13, 2019
Posted in: Carl Paladino, Chason Affinity, City of Buffalo, Development, Elmwood Village, Green Code, Joel Feroleto, Political Contributions. Leave a comment

[An abbreviated version of the following post was published on March 13, 2019 in the print version of the  Buffalo News Another Voice column.  You can read it on-line at https://buffalonews.com/2019/03/12/another-voice-feroletos-inaction-hurts-elmwood-village-residents/.]

[Full disclosure:  As a zoning and development lawyer, I spent years reviewing, critiquing and commenting on the Green Code (in the Buffalo News, ArtVoice, Buffalo Law Journal, etc.).  I also spent nearly a decade representing property owners in the vicinity of the Elmwood/Forest intersection in opposition to various proposed projects and in an effort to prevent demolition of the 11 buildings at that intersection.  I met with and shared my concerns with Councilmember Feroleto regarding both the Green Code and the Chason Affinity project as far back as November 2015.]

Joel P. Feroleto was sworn in as Delaware District councilmember on September 1, 2015.  When asked to describe the role of a Common Council member, he answered: “to be there for their constituents, and resolve all their issues.”

Joel Feroleto photo from prior bio

During the first few months of Joel’s service on Buffalo’s Common Council, the State’s Historic Preservation Office [SHPO] was in the process of deciding whether a significant portion of the Delaware District, nestled on the east side of Elmwood Avenue, was worthy of preservation and placement on the State and National Register of Historic Places.  During the review process, SHPO received only a handful of letters objecting to the designation.  Two of the objections were from Carl Paladino and William Paladino on behalf of Ellicott Development. A third objection was from an affiliate of the Chason Affinity companies, Affinity Elmwood Gateway Properties, owners of eleven properties located on the southeast corner of Elmwood and Forest avenues. [You can find the objection letters at pages 582, 583, and 587 of the Elmwood Historic District (East) application packet.  Elmwood Historic District EAST application.]

In December 2015, SHPO concluded that the 2,540 properties comprising the “Elmwood Historic District (East)” met the National Register criteria, and in March 2016 the Elmwood Historic District – East was officially entered in the National Register of Historic Places.  As expressed in the public announcement, “[T]he National Park Service’s National Register of Historic Places is part of a national program to coordinate and support public and private efforts to identify, evaluate, and protect America’s historic and archeological resources.”

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As SHPO explained in a December 2016 letter to the City of Buffalo, a critical factor in determining whether a group of structures merits preservation and placement on the state and national Historic Register is whether they are part of a highly intact collection of historically interrelated buildings.  From the perspective of our state’s historic preservation office, each structure, by its existence, contributes to the overall historic environment, whether or not it individually possesses significant historic, cultural, or architectural value.  [See SHPO’s 12-19-2016 letter.]

In March 2016, a century or so after the Elmwood Historic District (East) was first developed, the Elmwood neighborhood was remarkably “intact” – more than ninety-six percent (96%) of its buildings were still in existence and considered “contributing properties” worthy of inclusion on the National Register.

You might think that Joel Feroleto, as the Delaware District councilmember, would aggressively fight to preserve each and every contributing building in the historic Elmwood district.  You would be wrong.

On March 11 of this year, a pair of Elmwood Village two-family residences, 619 and 621 W. Delavan Avenue, were demolished.  Both structures were identified as “contributing” properties in the Elmwood Historic District (East).  Councilmember Feroleto, it appears, chose to do nothing to stop this destruction and the resulting diminution of the larger historic district.

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As noteworthy as the 2016 designation of the Elmwood Historic District (East) as a National Historic District may be, placement on the National Register was apparently much less significant to Mr. Feroleto than the fact that the buildings were owned by Ellicott Development.  According to state records, between October 2016 (the same month the Paladinos expressed their objection to placement of their Elmwood Village properties on the National Register) and September 2018, the various Ellicott Development entities made nine campaign contributions, totaling $1,450, to Joel Feroleto.

Even more troubling, Mr. Feroleto took no meaningful action to insulate eleven century-old structures at the corner of Elmwood and Forest avenues from the proverbial wrecking ball.  All eleven buildings were listed as “contributing properties” in the Elmwood Historic District (East).  These contiguous properties were owned by another objector to the National Register designation, the Chason Affinity companies.  Rather than being viewed as a valuable historic resource, it appears that these structures were considered – by Chason Affinity and Feroleto – as nothing more than obstacles to the developer’s plans for the massive “1111 Elmwood” mixed-use project.

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It was September 2016 when Chason Affinity submitted its formal application to City Hall in furtherance of the Elmwood/Forest project.  Within 20 days of that filing, Feroleto received a $500 donation from the property owner, another $500 from the project’s architectural firm, and $250 from the law firm representing Chason Affinity.  [See Feroleto for Council contributions.]  Over the following two years, Feroleto was the recipient of additional contributions from the property’s owner, a principal of Chason Affinity, and the project’s general contractor, as well as a second donation from Chason Affinity’s law firm.

[Note:  In case you’re wondering, Councilmember Feroleto also has received significant contributions from other developers and businesses who have had substantial projects approved or under consideration by City Hall.  For example: Dash Markets ($3,500), Sinatra ($1,500, TM Montante ($1,000), and Benderson Development ($750).]

Ironically, when asked why he has been unwilling to take steps to protect historic Elmwood Village structures from the wrecking ball, Feroleto points to the “Green Code” – the city’s zoning and development ordinance adopted in 2017.  According to the councilmember, the Green Code was intended to expedite the zoning process by eliminating layers of review.  In the instance of the proposed W. Delavan Ave. demolitions, complying with the code resulted in no public input.

Conveniently forgotten by Feroleto was another purported goal of the Green Code, one that motivated many Buffalonians to advocate on behalf of the proposed new zoning law:  “Respect traditional development patterns… and preserve the city’s architectural heritage and the physical context that supports it.”  Also disregarded by the Delaware District councilmember was his role,  as a member and sole attorney on the city’s Common Council. in crafting and adopting the Green Code.

The zoning law approved by Joel Feroleto intentionally places economic development as a higher priority than the quality of life of residents and preservation of historic neighborhoods.  And, the Green Code omits language formerly included in  Buffalo’s zoning ordinance which expressly stated that “demolition of structures for reasons other than to preserve public health, safety and/or welfare are not encouraged.”  More significantly, Mr. Feroleto rejected the recommendation from his own community working group that the Green Code require that any demolition in the Elmwood Village business district obtain Planning Board and Common Council approval.

The slow-to-act councilmember recently claimed to be researching an amendment to the Green Code requiring a public hearing – not at the Common Council, but at the Planning Board – when similar demolitions are proposed in a historic district.  Obviously, such intentions (if sincere) were “too little, too late.”

Effective options were available if Joel Feroleto had truly wished to serve Delaware District residents and preserve the history and character of the Elmwood Village prior to the Elmwood/Forest and W. Delavan demolitions.  He could have swiftly and aggressively requested that the Common Council enact a moratorium barring any demolition (other than for safety reasons) until the councilmembers could consider and vote on an amendment to the Green Code which would require a public hearing and Common Council approval for demolitions within any city or national historic district.

In my opinion, Joel didn’t take any aggressive steps to protect the historic integrity of the Elmwood Village for a simple reason: his “constituents” are the wealthy and the politically-connected developers and businesses, not the ordinary citizen.  While he chose to disregard the protective measures proposed by his own community working group prior to adoption of the Green Code, he was certainly “there” for Chason Affinity and Ellicott Development.  And, he  certainly “resolved their issues” – the pesky presence of century-old structures.

The residents of the Elmwood Village and Delaware District deserve much better.  They’ll have an opportunity to do something about that in the voting booth later this year.

With All Due Respect,

Art Giacalone

Buffalo’s City Comptroller must be an independent fiscal watchdog, not a Byron Brown loyalist

Posted by Arthur J. Giacalone on March 10, 2019
Posted in: Byron Brown, City of Buffalo, Mark Schroeder, Political Contributions. Leave a comment

The City of Buffalo Charter (its “constitution”) creates two systems of checks and balances at City Hall:

First, the Mayor is given executive and administrative powers, while all “legislative power” – that is, the power to enact local laws and ordinances in accordance with the state constitution and laws – is placed (at least, officially) in the hands of the Common Council.

Second, the Charter creates the position of City Comptroller, and makes the Comptroller “head of the department of audit and control.”  Unlike the other city department heads – who are all appointed by the Mayor, confirmed by the Common Council, and serve at the pleasure of the Mayor – the City Comptroller is an elected office, chosen citywide by the voters every four years.  This arrangement helps ensure that the Comptroller functions independently from the Mayor and Common Council, and can serve city residents and taxpayers as an independent “fiscal watchdog.”

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As the Buffalo News editorial board recently observed, the office of Comptroller demands “checks and balances,” and the woman or man holding the position “must be independent enough to challenge any mayor on finances when appropriate.”

I believe that it is more critical than ever that the City Comptroller be an effective, independent watchdog.  That’s all we Buffalonians currently have.  The Common Council has effectively set aside its role as a counter-weight to Mayor Byron W. Brown and his administration.  To an unhealthy and unacceptable extent, our councilmembers acquiesce to the Mayor’s office and administrative appointees when it comes to formulating policy and identifying a vision for the Queen City’s future.  Absent are signs of the meaningful checks and balances envisioned by the Charter between the executive/administrative and legislative branches.

A prime example of our docile legislature was the Common Council’s belated and ineffective role in drafting, assessing, and enacting the city’s most significant “legislative” initiative in decades, the Uniform Development Ordinance (UDO), known informally as the “Green Code.”  [Note: I have previously expressed my thoughts on this topic at an October 2015 post,]

An independent City Comptroller is now the sole source of effective checks and balances at City Hall.  But that independence is threatened when a vacancy occurs in the midst of a four-year term, and the Common Council, and not the voters, fills the empty seat.  That is precisely where we find ourselves now.

The City Comptroller position has been vacant since February 1st when Mark J.F. Schroeder, who had been tenaciously serving as Comptroller since 2012, resigned to become head of New York’s motor vehicle department.  [Full disclosure: I supported Mark in his 2017 mayoral campaign against Byron Brown.  See https://withallduerespectblog.com/2017/09/08/why-im-voting-for-mark-schroeder-on-september-12th/.]

As a result of the opening, behind-the-scenes maneuvering is taking place.  In the words of  veteran Buffalo News political columnist Bob McCarthy, “Political intrigue is stalking City Hall this week… and angling is underway to fill the vacant comptroller’s office.”  Not surprisingly, Mayor Byron Brown and his Democratic allies are intent on assuring that Mark Schroeder’s successor will not be another thorn in the mayor’s side.  In an apparent step to ensure a harmonious and passive relationship between the next Comptroller and Mayor, local Democratic party leaders selected Erie County Legislator Barbara Miller-Williams as the party’s nominee to replace the vigilant Mark Schroeder.

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I am not professionally or personally familiar with Miller-Williams’ multi-faceted career, other than what I have read in newspapers and researched on-line.  According to her biography, prior to her position as a county legislator, she served on the city’s Common Council, and is both a retired Buffalo police officer and a retiree of the U.S. Army Reserve.  Ms. Miller-Williams holds both a B.S. degree in business administration, and Masters in Higher Education and Student Affairs Administration.  Notably, she is not a certified public accountant (although one need not be a CPA to meet the Charter’s qualification for the Comptroller position).

I am not questioning Miller-Williams’ integrity, or diminishing her many accomplishments.  However, while she promises an open and transparent relationship with the Brown administration, I have deep reservations regarding her independence and willingness to challenge either Byron Brown or her former Common Council colleagues.  Here’s why:

–  According to the Buffalo News, Barbara Miller-Williams “has reached a number of political milestones with [Mayor Byron] Brown’s help.”

– NYS Board of Elections records show that the Mayor’s “Brown for Buffalo” committee contributed nearly $2,000 to Miller-Williams’ county legislator campaign in 2011, and made additional contributions totaling $950 between 2013 and 2015.

– The Buffalo News also reports that Miller-Williams is “part of the Grassroots political club that has worked to elect dozens of politicians over the past three decades, including Mayor Byron W. Brown.”

– According to NYS Board of Elections records, “Brown for Buffalo” donated nearly $14, 000 to the Grassroots organization between 2013 and 2017.

City Hall under Mayor Brown’s leadership is a secretive and, at times, intimidating place.  It is understandable, when reviewing the following powers and duties the Charter vests in the City Comptroller, why Byron Brown and his allies on the Common Council would strongly prefer not to have an independent fiscal watchdog in their midst:

– The comptroller has unrestricted access to all employees, officials, offices, records, reports, files, and information and things of whatever nature as needed to carry out the comptroller’s duties, and possesses the power to investigate and to enforce by subpoena the attendance of witnesses or the production of document at such investigation.

– The comptroller has the power to conduct performance audits of all bureaus, offices, departments, boards, commissions, activities, functions, programs, agencies and other entities or services of the city to determine whether their activities and programs are: (i) conducted in compliance with applicable law and regulation; and (ii) conducted efficiently and effectively to accomplish their intended objectives.

– If the comptroller detects apparent violations of law or malfeasance or nonfeasance by an officer or employee, or information that indicates derelictions may be reasonably anticipated, the comptroller has the duty to report the irregularities to the council and the mayor, and, if the irregularity is potentially criminal in nature, to also notify the district attorney.

– The comptroller is obliged to submit to the common council, on or before the tenth day of May each year, a report assessing the accuracy of the revenue and expenditure estimates of the budget the mayor submits to the council.

– The comptroller has the authority to hire an independent consultant to conduct an audit of the performance of the common council staff every two years.

– The Charter provides the comptroller with the power to appoint, remove at his or her pleasure, and supervise the deputy comptroller, the city auditor, city accountant, and the investment and debt management officer.

– The comptroller has the duty to examine, audit and settle accounts of all officers, departments, boards commissions and other agencies of the city.

–  The comptroller also has the power to conduct financial and performance audits of all agencies and other entities a majority of whose members are appointed by city officials (most frequently, the Mayor) or that derive at least fifty percent of their revenue from the city.

[Note:  Additionally, pursuant to Section 34-a of the General Municipal Law of the State of New York, the Buffalo City Comptroller has the power to examine into the financial affairs of the Buffalo public school district and audit all school district accounts as the comptroller deems necessary.]

Clearly, given the breadth and depth of the City Comptroller’s authority and responsibilities, the position of Comptroller was created to provide Buffalo’s residents and taxpayers with an effective a fiscal watchdog at City Hall.  As expressed in a recent Buffalo News editorial, “Buffalo needs another fiscal watchdog who makes protecting the taxpayers a higher priority than keeping the political waters calm.”

The Common Council must vote no later than April 27 to appoint Mark Schroeder’s interim successor.  It may be tempting for councilmembers who are affiliated with Grassroots, or who have received substantial political contributions from “Brown for Buffalo” over the years – including Joe Golombek ($4,702.50), Joel Feroleto ($1,250), and Ulysees Wingo ($1,000) – to simply give their vote to Mayor Brown’s long-time ally, Ms. Miller-Williams.  But, we, Buffalo’s residents and taxpayers, must demand that each and every councilmember honestly and objectively give full consideration to all the candidates for the Comptroller vacancy, and, in the words of the Buffalo News editorial board, “[C]hoose a new comptroller who is independent enough to challenge the Brown administration on finances when it needs to be challenged.”

At last count, in addition to Miller-Williams, five individuals have submitted applications for appointment to the Comptroller’s seat:

* Vanessa A. Glushefski, who is a lawyer and the only CPA in the group.  Ms. Glushefski was appointed by Schroeder as Deputy Comptroller, and is currently serving as Acting Comptroller.

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* Common Council Member Richard A. Fontana, a seven-term representative of the City’s Lovejoy district.

* Patrick J. Curry, served seven years as Schroeder’s spokesperson and executive assistant.

* Jonathan D. Rivera, who works as an assistant to the commissioner of Erie County’s public works department.

* Scott J. Wilson, Jr., a college student who spent several years working in the Comptroller’s office in early 2018.

With All Due Respect,

Art Giacalone

P.S.  I believe that these are current email addresses for Common Council members:

dpridgen@city-buffalo.com; rfontana@city-buffalo.com; dfranczyk@city-buffalo.com; jgolombek@city-buffalo.com; cscanlon@city-buffalo.com; jferoleto@city-buffalo.com; darivera@city-buffalo.com; rwyatt@city-buffalo.com; uwingo@city-buffalo.com

Sham, Spurious and Sundry Unspeakables in one Jurist’s Courtroom

Posted by Arthur J. Giacalone on January 5, 2019
Posted in: City of Buffalo, Judiciary, Lawyer's 1st Am. rights, South Buffalo. 3 Comments

“Really?”

That was my spontaneous exclamation on November 20, 2018 when a judge abruptly and angrily ordered me in open court to “stop using” words such as “sham,” and to “use legal words.”

And “sham” wasn’t the only expression to arouse the jurist’s pique.  His Honor went on to characterize phrases in my court papers such as “working in concert” and  “spurious legal contentions” as “the sort of things that this Court, for one, is tired of hearing from lawyers.”

Here’s the actual exchange [I’ll spare the casual readers of this post the details of the court case, but the curious can peruse the affirmation which contains the above-quoted “unspeakables” for an overview of the facts and legal contentions: krehbiel v. wnymcs – giacalone affirmation 11-18-18]:

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MR. GIACALONE: … [A]nd that’s why we see this whole thing as a sham.

THE COURT:  No, stop using those words.

MR. GIACALONE: Well, how could – –

THE COURT:  Don’t use ruse, sham, red herring, all that stuff.

MR. GIACALONE: Really?

THE COURT:  Stop using it.  Use legal words.

MR. GIACALONE: It is a legal word, Your Honor.

THE COURT:  Sham?  Isn’t that a derogatory word?

MR. GIACALONE: Can I find court cases that refer to shams?

THE COURT:  I don’t – –  You know – –

MR. GIACALONE: For some reason, we can’t express how we interpret the actions of the City. I don’t have the luxury of assuming that they’re acting in good faith, Your Honor.  I observe what they’re doing.

THE COURT:  Well – –

MR. GIACALONE: I’m just saying – –

THE COURT:  I’m searching for words to make sure that I use them correctly.  I read your affidavit in opposition – – or your affirmation, excuse me, not an affidavit, an affirmation.  You use the phrase, working in concert.  There’s other words.  Cannot hide under – – is it a sheaf?

MR. GIACALONE: Sheaf.

THE COURT:  – – of affirmations and spurious legal contentions, and the purported need for rescission seems to be little more than a sham, a manufactured excuse to rid themselves of embarrassing litigation.  Those are the sort of things that this Court, for one, is tired of hearing from lawyers.  Now, I’ll bet if I go to [opposing counsel’s], I can probably find a few.

MR. GIACALONE: Well, that’s the point.

THE COURT:  Let me finish.  I’ll bet I’ll find – – is that where I left off?

THE REPORTER:  Yes.

THE COURT:  Wishful thinking.  Self-imposed requirement of petitioners who evidently wish to control the project.  I mean, there’s a few.  They’re a little more subtle, but your briefs and your affirmations would be a lot less – – a lot shorter and less for the Court to read if you left out the hyperbole and the adjectives used to describe your opponents’ thoughts, arguments, etcetera.  Those are the sorts of things that this Court, for one, is tired of having to wade through in order to reach a determination.  I try very hard to avoid such adjectives in describing arguments and conclusions of counsel and their clients.

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My surprise at His Honor’s sensitivity to expressions such as sham and spurious is two-fold.

First, it is not difficult to find either court decisions which characterize activities and legal proceedings as shams (from a dissenting opinion by the late U.S. Supreme Court Justice Antonin Scalia, a per curiam order of the U.S. Court of Appeals, Second Circuit, to a memorandum from our own Appellate Division, Fourth Department), or repeated references to spurious legal claims and defenses in opinions rendered by our state’s appellate courts.

More significantly, the ability of lawyers in a judicial proceeding to “speak freely to zealously represent their clients without fear of reprisal or financial hazard” is so integral to the search for truth and the welfare of society that oral and written statements made by attorneys in connection with a court proceeding are absolutely immune from liability for defamation when such words and writings are pertinent to the questions involved.   New York’s highest court established this legal principle more than 120 years ago, “for the benefit of the public, to promote the administration of justice, and only incidentally for the protection of the participants in judicial proceedings.”  [See, for example, Youmans v. Smith, 153 NY 214 (1897); Park Knoll Associates v. Schmidt, 59 NY2d 205 (1983); Front v. Khalil, 24 NY3d 713 (2015).]

It has always been my goal as a lawyer to thoroughly, accurately, and diligently represent my clients’ legitimate interests, and to do so in a professional and honest manner.  The court papers that so offended His Honor attempted to fully support – factually and legally – my clients’ claims of sham, spurious arguments, and city officials working in concert with the project’s sponsor.  Ironically, my conscientious efforts to explain and support my clients’ assertions appear to have irritated the judge who expressly referenced the length of my last submission:  “Twenty-eight pages.”  [Of course, His Honor did not mention that my affirmation was in response to four attorney affirmations, an affidavit, and a memorandum of law, totaling 31 pages in length (plus several exhibits).]

I may not be the proverbial “sharpest marble in the drawer,” but I can’t for the life of me understand how the words and phrases that I spoke and wrote are not an acceptable part of the legal lexicon.

I also can’t understand why His Honor chose, not once, but twice, to address me as “Arthur” during oral argument, rather than “Mr. Giacalone.”  In contrast, my two opposing counsel were consistently identified as “Mr. ________” and “Ms. ________.”  [Note: During my 42 years of appearing in courtrooms – at trial-level and in appellate proceedings – no judge or justice had ever chosen to refer to me by my first name.]

But I think I understand why His Honor complied (over my objection) with my opposing counsel’s peculiar request to attach to the official “Order and Judgment” not only the two-page transcript of the Court’s November 20, 2018 oral decision (dismissing my clients’ lawsuit), but the entire 34-page transcript of that day’s oral argument.  In doing so, the Court not only went beyond the customary practice in Western New York (and, I believe, elsewhere), His Honor exhibited his unmatched hubris.

With All Due Respect,

Art Giacalone

A Citizen’s Guide to Land Use and Zoning Law

Posted by Arthur J. Giacalone on December 22, 2018
Posted in: City of Buffalo, Development, Erie County, Green Code, SEQRA. 1 Comment

I was honored this past year when Sam Magavern, as Executive Director of Partnership for the Public Good, asked me if I would be interested in writing a handbook to assist Western New York residents better understand land use and zoning laws, and more effectively express their concerns about proposed projects or changes in land use laws.  When Sam approached me, I was well aware of how tirelessly PPG has worked to provide research and advocacy support to community groups and advocates to improve the quality of life and ensure justice throughout the Buffalo Niagara region.

I had some reservations (as I’ll address in a minute), but I took on the task, and PPG published the finished product earlier this week, entitled, “Land Use and Zoning Law:  A Citizen’s Guide.”  [You can also find the handbook here: environment-_land_use_and_zoning_law_a_citizens_guide ]

Although PPG generously attributes the writing of the guide to me, it was, in fact, a team effort.  The final version reflects the evenhandedness and editorial insight of Sam Magavern, as well as the “historic preservation” expertise of Jessie Fisher, Executive Director of Preservation Buffalo Niagara.  My sincere thanks to both.

Regarding my reservations, I realized that it would a struggle for me to overcome my skepticism of the zoning and land use process while organizing and drafting the handbook.  As I wrote in a July 2018 post following announcement of the Buffalo Billion-related conviction:

“Zoning, land use and construction decisions are made at what I view as the intersection of politics and greed.  It’s an unattractive and discouraging place to be if you believe that citizens deserve both an open and fair process, and government officials who truly strive to function lawfully and in a manner intended to benefit society as a whole.”

Much of my perspective and concerns relating to the development process are the result of three decades of dealing with Buffalo City Hall.  As expressed in a recent posting regarding a proposed project on Buffum Street near my South Buffalo residence:

“As a lawyer who has spent nearly 30 years representing residents in land use and environmental matters, I have lost virtually all confidence in Buffalo City Hall’s willingness and ability to comply with zoning and environmental review laws.”

Not only has the City of Buffalo failed to consistently apply and enforce its much touted zoning and development law, the “Uniform Development Ordinance” or “Green Code” [one startling example, the Chason Affinity project at Elmwood and Forest avenues], it has managed to render SEQRA, a citizen’s most effective tool, virtually meaningless by its reluctance to require project sponsor’s to prepare draft Environmental Impact Statements.  [See my February 2018 post on the virtual extinction of EISs.]

Equally disappointing, when it comes to preserving the Queen City’s historic and architectural heritage, Buffalo’s pro-development and arrogant decision-makers have refused to listen to, or consider, the recommendations of State preservation experts when such advice contradicts a developer’s plans.  [See State Historic Preservation office letter re Elmwood/Forest project: SHPO’s 12-19-2016 letter] This myopic stance was tangibly demonstrated in 2017 when, following the “leadership” of Councilmember Joel Feroleto, the Common Council made decisions which led to the demolition of 10 century-old buildings in the Elmwood Village to make room for a massive, incongruous, mixed-development project.

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More recently, this position was formalized, at the urging of Councilmember Christopher Scanlon, in a resolution adopted by Buffalo’s Common Council on October 2, 2018 (in furtherance of Maritime Charter School’s Buffum Street expansion plans):   “… As a municipal entity, the Common Council is not required to take advice from or consult with New York State Historic Preservation Office (SHPO) in any way.”  [See Common Council Resolution rescinding special use permit 10-02-2018]

Sophisticated and politically-connected developers, emboldened by their lawyers, have learned to work in concert with compliant government officials to circumvent and maneuver through zoning laws and SEQRA requirements.  The only way to reverse this tidal wave will be through persistent vigilance and hard work on the part of residents and community advocates.

I hope PPG’s handbook will assist those efforts as we strive to protect and enhance the character and integrity of our neighborhoods and communities throughout Western New York.

With All Due Respect,

Art Giacalone

Councilmember Christopher Scanlon serves his political contributors, ignores concerns of South Buffalo residents

Posted by Arthur J. Giacalone on June 11, 2018
Posted in: Carl Paladino, Christopher Scanlon, City of Buffalo, Development, Native American, Political Contributions, South Buffalo. Leave a comment

[A version of this posting was published in The Public on June 12, 2018. My thanks to Geoff Kelly.]

Fact: On at least sixteen (16) occasions between August 2012 and February 2016, entities with the same address as the corporate headquarters of Carl P. Paladino’s Ellicott Development Company have made political contributions to “Friends of Christopher P. Scanlon.”  The donations – from contributors with names such as Turning Albany Upside Down P.A.C., Seneca Street Properties, Ellicott Development, and 2468 Group, Inc. – have ranged from $100 to $500 apiece.  William A. Paladino, the current CEO of the company founded by his father Carl, has also donated to Scanlon’s campaign.  [See  Scanlon contributions from Ellicott Development 2012-2016.]

Question:  Do these political contributions explain why Christopher P. Scanlon, the South District representative on the City of Buffalo’s Common Council, has failed to publicly acknowledge or address the legitimate concerns of residents in South Buffalo’s Buffum Street area concerning Western New York Maritime Charter School’s plans for their tranquil, historic neighborhood?  [Full disclosure:  I live less than 800 feet from the project site, and oppose the charter school’s proposal. See Giacalone Letter to Common Council re Special Use Permit 06-05-18 .]

Background:  More than a century ago, an elementary school (former Public School No. 70) was constructed three blocks east of Seneca Street on Buffum Street, a 20-foot wide residential road.  The masonry building stands two-stories high, and has approximately 43,000 square feet of gross floor area.

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The  elementary school site is encircled by residences – nearly all of which are one- and two-family homes.  The residences immediately east of the school pre-date the 1915 construction of former School No. 70.  The homes across the street from the project site on Buffum Street, and on Indian Orchard Place and Silverdale Place (one-block long dead-end streets) were built during or prior to the 1920s.  The scale of the two-story elementary school building is in harmony with the neighboring residences.

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In October 2016, Buffalo’s Common Council – including Mr. Scanlon – approved the sale of the then-vacant school building (along with vacant land to the rear of 102 Buffum Street) to an affiliate of Ellicott Development for $975,600.  According to City of Buffalo documents, it was the developer’s intentions to renovate the property for an estimated $390,000, lease it to an existing charter school, and construct a new 45,000 sq. ft. building which would include a gym.  No mention was made of a plan to construct a high school building at the site.

WNY Maritime Charter School began operating its “middle school” at 102 Buffum Street in September 2017.  The middle school has approximately 81 students and 24 faculty members.  Buffalo’s online property information website identifies the charter school as the current owner of the property, and also indicates that the facility is fully exempt from taxes as an education institution.

Current Proposal:   On May 1, 2018, William Paladino, as CEO of Ellicott Development Company, submitted a packet to the City of Buffalo on behalf of its “client” – WNY Maritime Charter School.  The October 2016 plan to construct “a new building including a gym (45,000 sq. ft.) and an athletic field” has transformed into a proposal “to construct a new 3-story classroom building” (64,913 sq. ft.) and “athletic facility addition” (24,050 sq. ft.) including “3 full size basketball courts.”  [See Charter school Special Use Permit packet 05-10-18.]

Neighborhood concerns:  Ellicott Development’s new proposal represents a significant increase in both the scale of development and the intensity of land use at the 102 Buffum Street site:

(a) The number of buildings would triple from 1 to 3.

(b) The gross floor area would triple in size from 43,000 sf to 132,000 sf.

(c) The maximum building height would increase from 2-stories to 3-stories.

(d) The current total of 105 students and faculty at the site would explode to 525 (450 students/75 faculty), five-times its current population.

(e) A beautiful grassy lawn on the east side of the existing school, graced by 8 to 10 mature trees, would be paved over to add an additional 57 parking spaces.

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As expressed during a June 5, 2018 public hearing before the Common Council’s Legislation Committee (with Mr. Scanlon in attendance), the proposed Maritime charter school expansion threatens to adversely impact several aspects of the environment protected by the State Environmental Quality Review Act (SEQRA):

  1. Impact on Land. SEQRA’s  regulations expressly include “a substantial change in the intensity of use of land” as one of the “indicators of significant adverse impacts on the environment.”  The stark contrasts between existing conditions at the site and the proposed addition of a high school building, athletic facility, and parking area reflect – in quantifiable terms – a substantial increase in both the scale of development and the intensity of use of the site.
  2. Impact on Traffic. Although the City Planning Board casually spoke of road capacity “adequate to service any increase in traffic,” Buffum Street is not Seneca Street or a busy commercial thoroughfare.  To the contrary, 102 Buffum is located three blocks from Seneca, in the heart of a residential neighborhood, where the principal public street is only 20 feet wide, cars purposely park over the curb because of the narrowness of the  thoroughfare, and two of the adjacent streets (Indian Orchard and Silverdale) are one-block long dead ends.  Traveling on Buffum Street becomes more difficult, even treacherous, during the winter months.  School buses – with only 81 students currently attending the school – already have a difficult time maneuvering around each other as they approach and depart the school.  Note:  The developer’s unsupported premise that 90% of the high school students will be using public transportation to get to and from the school seems unrealistic and self-serving.  And, no consideration has been given to the capacity of either the on-site parking spaces, or adjacent residential streets, to safely handle added traffic when the Maritime high school functions as “home team” for its basketball and other varsity games.  DSCN9708  DSCN9696
  3. Impact of Existing Neighborhood/Community Character. The above-noted substantial increase in the scale of development and the intensity of use of the site will also have a significant adverse impact on the existing character of the surrounding neighborhood of modest one- and two-family residences.  [See 6 NYCRR 617.2(l), 617.7(c)(1)(v).]  Their scale and architectural features are in harmony with the two-story existing school building, and are incompatible with the size and sterile façade proposed for the 3-story new classroom building.  Additionally, the existing character of the surrounding residential neighborhood will be adversely impacted by the sheer number of students and faculty that would be coming to the site daily – estimated at a combined 525 individuals – starting at approximately 7:15 AM when the buses and autos begin to arrive.  DSCN9597
  4. Impact on historical, archeological, and aesthetic resources. The mature trees and green lawn east of the existing school building are a significant aesthetic resource to this neighborhood, enjoyed by the residents who live across the street from the school property, passers-by, and, presumably, the staff and students at the Maritime middle school.  This important aesthetic resource – which took generations to reach its current state – would be eliminated in-a-blink-of-an-eye if the proposed project is approved, replaced by a large, noise-producing, exhaust-creating parking lot.  Note:  Although the Planning Board meekly attached as a condition to its site plan approval the following, “All mature trees must be saved where possible,” it is inconceivable that the developer would not claim that the vast majority of the majestic trees (with their extensive root systems) must be removed to ensure a safe, efficient movement of vehicles into and out of the new parking lot.   The project site is located within a couple hundred feet of the Seneca Indian Park, a site deemed sacred and part of a much larger area used historically as a burial ground by the Seneca Nation and others.  Historians believe that in 1819 the first Seneca Mission house was built by Christian missionaries at the site of the former School No. 70 – that is, the subject parcel.  While the developer and the Planning Board acknowledge that the proposed action is in an “archeologically sensitive area,” a “Phase 1” archeological survey has not been conducted.    DSCN9588  DSCN9587
  5. Construction-related adverse impacts. Construction-related traffic, noise, dust, etc., would have a profound impact on the quality of life of the surrounding residents for many, many months.

Scanlon’s response:  The South District’s Common Council member sat passively throughout the comments made by the public on June 5, showing neither interest, nor concern.  But Mr. Scanlon made certain that he expressed support, on the record, for Ellicott Development’s proposed project at the close of the hearing.  As reported by WBFO:

“… South Buffalo Common Councilmember Chris Scanlon says the project would be a good addition, especially saving the long-closed School 70.  ‘If it continued that way, it would eventually have fallen into a state of disrepair,’ says Scanlon. ‘Here we have a[n] entity, a school, which has a wonderful reputation, which is bringing life back to that building and which will inject the South Buffalo community with a couple hundred bodies each and every day, and they’re further investing between $10-$15 million in that location, which will further revitalize the Seneca Street Corridor.’”

Scanlon’s comments ignore several relevant facts.  The presence of the middle school students and faculty has already brought “life back to that building” – life commensurate with the scale of both the century-old building and surrounding residential neighborhood.  The building was not in significant disrepair when purchased by the Maritime school, and would almost certainly have been an attractive target for conversion into apartments or condominiums given the current momentum by developers to breathe life into Seneca Street.  Also, whatever purported benefit “a couple hundred bodies each and every day” would have on the broader South Buffalo community, it is disingenuous, at best, to imply that attracting over 500 individuals a day, every day, would improve the quality of life for the human beings – homeowners and renters – who call the adjacent streets “home.”

One last point needs to be made.  Scanlon not only ignored the concerns of his constituents who will bear the burden of placing a high school in their midst, he disregarded the questionable process used by his political contributors – I mean – Ellicott Development, and its client, WNY Maritime Charter School:

(1) Ellicott Development and the Maritime charter school engaged in a bait-and-switch transaction when the sale of the property was before the Common Council in October 2016, expressing a desire to construct one 45,000 sq. ft. building to house a gymnasium, and then replacing that scenario with a plan to add a 65,000 sq. ft. high school building (three-stories in height), a 24,000 sq. ft. athletic facility, and nearly 5 dozen additional parking spaces.

(2) The filing of site plan documents that omitted important and necessary information concerning existing conditions on- and off-site:  the location and scale of the nearby residences; the location of driveways on Buffum Street; and, the number and location of the “established trees” on site.

(3) Despite a grassy front lawn approximately 48’ deep, the developer violated the Green Code’s “posted notice” requirement by ignoring the mandate to post a sign “clearly visible from” and “within 10 feet” of Buffum Street.  Instead, the public notice was hidden in a classroom window more than 50’ from Buffum Street, obscured by the glare and light reflecting off the school window.

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It appears to me that Councilmember Scanlon is more interested in protecting the interests of the developer (who also happens to be an early and faithful campaign contributor), than preserving the quality of life and existing character and historical significance of the surrounding residential neighborhood.

With All Due Respect,

Art Giacalone

The vacant Park District BOE seat – a day late ain’t great

Posted by Arthur J. Giacalone on June 3, 2018
Posted in: Carl Paladino, City of Buffalo. Leave a comment

I moved from East Aurora to South Buffalo in June 2015 – June 17, to be exact.  [You’ll understand the reason for such specificity as you read this posting.]

I half-jokingly told my friends at the time that the primary motivation for my landing in South Buffalo was so that I could run against Carl P. Paladino for the Park District seat on the City of Buffalo’s Board of Education.  I was sick and tired of his bullying, vitriol, and conflicts-of-interest.  In reality, it was the prices of homes in the Queen City’s trendier neighborhoods, and a desire to live as close as possible to my teenage son in East Aurora, that led me to my humble-but-charming century-old home several blocks from Cazenovia Park.

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But my belief that the residents – and, most especially, the children – of South Buffalo were not being well-served by Paladino’s act pre-dates my daily walks down Indian Church Road, across Seneca Street, and around Caz park.  In fact, in March 2015, after reading yet another example of what I viewed as an endless stream of ill-conceived and unnecessary confrontations by The Carl, I posted a piece at this blog titled, “Dear Park District Voters, Please Don’t Re-elect Carl Paladino in 2016.”

To my chagrin, I discovered – not long after settling into my new home, neighborhood, and community – that I would not be eligible to run for the Park District seat in May 2016.  Although I was a U.S. citizen, had never been convicted of a felony, and was a qualified voter of the Buffalo City School District (and, had been a resident of the City of Buffalo for approximately nineteen years prior to moving to East Aurora in 1996), I couldn’t meet two qualifications:  “a resident of the city school district for three years and a resident of the [Park District] for a period of one year preceding the date of the election.”  [See NYS Education Law, Section 2553(1).]

Mr. Paladino won an unexpectedly competitive race in March 2016.  The most that I could do at the time was vote for his youthful opponent.  The thought of three-more-years of Carl was distressing.  And waiting until May 2019 for the next opportunity to seek the Park District seat – when I would unequivocally meet all of the requirements –  seemed interminable.

So I decided to look for ways to personally assist and get to know the challenges facing the students in Buffalo’s public schools.  During the summer of 2016, I responded to a call for volunteers from Read To Succeed Buffalo.  The organization did not have arrangements at that time (they will this coming year) to place reading tutors/mentors in any of South Buffalo’s schools.  But I’ve had the good fortune of spending two extremely rewarding and informative years volunteering twice a week at the Waterfront Elementary School, where I get to interact with a diverse group of bright, energetic second-graders.

As most of you are aware, Carl Paladino was removed from the Buffalo BOE in August 2017 by the State Education Commissioner, MaryEllen Elia.  As succinctly described by Buffalo News reporter Jay Rey, the disciplinary action was taken against Paladino “for publicly disclosing private information from a School Board executive session – which happened in the wake of his inflammatory comments about former President Barack Obama and his wife, Michelle.”

When the Board of Education solicited applicants to fill the vacant Park District seat in August 2017, I was unable to apply, shackled by the three-year City of Buffalo residency requirement.  But I was pleased by the BOE’s unanimous choice of pediatric psychologist Catherine Flanagan-Priore to fill Carl’s place on the board.  She brought a fresh perspective, and I looked forward to a new, more-placid, and productive era for the Buffalo school district, one devoid of the drama and discord associated with Mr. Paladino’s tenure.

Meanwhile, I have continued my own efforts to become more familiar with the day-to-day workings of Buffalo’s public schools.  For the past year, I have worked as a Substitute Teacher in more than a dozen elementary schools throughout the city, spending a majority of my time in South Buffalo schools.  The experience has been eye-opening in many ways, and on many levels.

But back to Buffalo’s BOE.  Good times don’t seem to last all that long on the eighth floor of Buffalo City Hall.  Last month – on May 16, 2018, to be exact – the Park District once again found itself without a member on the Buffalo Board of Education.  Catherine Flanagan-Priore abruptly resigned her seat.  As reported by local media, the Park District board member resigned on May 16 to protest the manner in which the BOE handled a new nursing contract (a board decision adversely impacting Flanagan-Priore’s employer, Kaleida Health).

The remaining members of the Buffalo’s BOE have 30 days from the date when the vacancy occurred to fill the open seat with a qualified person (or the Mayor, subject to confirmation by the Common Council, makes the appointment).  That means that a majority of the board must select Ms. Flanagan-Prior’s replacement by June 16, 2018.  [See Education Law Section 2553(10(n).]

My current residency in the City of Buffalo will not reach three successive years until June 17, 2018, the day after the BOE’s deadline for appointing the new Park District member.

Not surprisingly, the Board of Education has officially informed me that I do not meet the three-year City of Buffalo residency requirement.  [Click here to see Arthur Giacalone’s Letter of Notification with Resume, and here to see BOE Letter to Arthur Giacalone.]

Being the proverbial “day late” is a bummer.  While I would have preferred that the respected  child psychologist not have resigned at all, I can’t help but wish that she would have made the decision a bit less impulsively, or, at a minimum, had given her fellow board members some notice and made the resignation effective later in the month of May.  Had either option occurred, the three-year residency deadline would have been pushed beyond June 17, 2018.

I am not in any way suggesting that I would have been the best qualified of the prospective applicants for this unexpected opening, or that a majority of the remaining eight board members would have chosen me as the new Park District member.  But I certainly would have appreciated an opportunity to be interviewed by the BOE.  And, had I been appointed, I would have been honored – and, humbled – to join the BOE members and undertake the challenge, on behalf of South Buffalo’s residents, to improve the City of Buffalo’s public school system.

While it may not be in any official capacity, I am ready, willing, and able to assist the current BOE members, and whomever is appointed to the vacant Park District seat, to further the interests of Buffalo’s students.

With All Due Respect,

Art Giacalone