Why I’m Voting for Mark Schroeder on September 12th

Posted by Arthur J. Giacalone on September 8, 2017
Posted in: Byron Brown, City of Buffalo, Mark Schroeder. Leave a comment

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UPDATE:  Incumbent Byron W. Brown won the September 12, 2017 Democratic mayoral primary, winning 51.7% (13,346 votes), to Betty Jean Grant’s 12.6% (3,267 votes), and Mark Schroeder’s 35.7% (9,219 votes).  Approximately one-quarter of the city’s registered Democrats cast ballots on a weather-perfect mid-September day.  Here’s how Buffalo News veteran political reporter, Bob McCarthy, characterized the results:  “Brown surpassed the magic 50 percent mark in the primary, an impressive feat against two well known opponents. But it still means he was supported by just over half of the city’s Democrats, and Schroeder beat poll predictions with 35 percent.”  [Also, see this article with neighborhood results.]  For the reasons I expressed in my initial post below, I am quite disappointed in the outcome.  But, I am inspired by the positive and issue-oriented campaign Mark ran, and greatly appreciative of the opportunity to meet and get to know the candidate and his bright and energized staff (in particular, Jenn Orr and Cherelle Syph).

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Members of the Buffalo News editorial board endorsed incumbent Byron W. Brown for mayor in the September 12th Democratic primary election, characterizing the choice as “an easy call.” Their decision was simple and effortless despite an acknowledgement that Mr. Brown’s main opposition, Mark Schroeder, has not only “shown himself as a valuable asset” as City Comptroller, but would make “a credible mayor.”

The Buffalo News justifies its decision by claiming that “the case for change” has not been made. I emphatically disagree.

Had the region’s largest newspaper waited a week to announce its endorsement, and honestly assessed its September 6th article, “Byron Brown’s 12 years as mayor: By the numbers,” they would have seen how the incumbent’s record should give every Buffalonian reason to strongly consider a change at the top.

Likewise, had the editorial board re-read the paper’s July 24, 2016 editorial, “City comptroller is working to ensure public information gets to the public,” they would have recalled the stark contrast between and Mark Schroeder’s refreshing “commitment to open government that citizens of a democracy deserve,” and the Brown Administration’s consistent record of “hinder[ing] access to information.”

Here are the major reasons that I will vote on September 12th in the Democratic primary election to replace Byron Brown with Mark Schroeder for Mayor of the City of Buffalo:

HUMAN BEINGS, NOT BUILDINGS, DEFINE A CITY: Our current mayor has the audacity to tout “an economic development strategy” that he claims “stabilized and grew the economy.” He proudly takes credit for $6.1 billion in new economic activity. But, he refuses to shoulder any of the blame for the poverty that permeates much of the city. As reported in the September 6th Buffalo News article, during Byron Brown’s 12 years as mayor, the city’s overall poverty rate has increased from 26.9% to 33.0%, while Buffalo’s child poverty rate has mushroomed from an already-unacceptable 37.5% in 2005 to a reprehensible 53.9% in 2015 (the most recent year statistics are available). Buffalonians deserve so much better.

HOMICIDES AND FEAR OF VIOLENCE CONTINUE TO PLAGUE BUFFALO NEIGHBORHOODS. The Buffalo News would have city voters view the mayor’s “public safety” record as representing “a clear area of progress.” This sleight-of-hand is accomplished by focusing on the city’s 19.53 % decrease in “violent crime rate” per 100,000 between 2005 through 2015. Two factors greatly diminish the significance of this “progress.” First, as noted in the September 6th report, Buffalo’s overall rate remains significantly higher than the rates in Rochester and Syracuse. More importantly – and not reported in the Buffalo News article – the number of homicides on City of Buffalo streets has risen from 37 in 2008, to 42 in 2015, and 44 in 2016. And, the trend toward an annual increase in loss of life through homicides continues in 2017.

NOTE: As Mark Schroeder has emphasized during recent mayoral debates, Mayor Brown’s police department has an embarrassingly low rate of “clearing” – that is, resolving – homicide cases. According to City of Buffalo records, only 11 of the city’s 44 homicides in 2016 have been cleared – a dismal result reflecting, almost certainly, the low level of trust between the city’s law enforcement officials and the communities they serve. And the human costs to surviving family members – who are unable to find the comfort of “closure” – is immeasurable.

MAYOR BROWN’S “GREEN CODE” EMPOWERS DEVELOPERS AT THE EXPENSE OF RESIDENTS AND EXISTING NEIGHBORHOODS. Byron Brown misled city residents by promising a new zoning code that would protect the character of existing neighborhoods. What we got, however, was the “Uniform Development Ordinance” – informally known as the Green Code” – a set of rules and standards that make it easier for developers to build what they want, where they want. Adding insult to injury, Byron Brown has used his appointment and hiring authority the past 12 years to stack the Zoning Board of Appeals, City Planning Board, and, most importantly, city hall planning staff, with individuals who consistently view proposed projects from the perspective of developers, not residents.

MAYOR BROWN HAS DISREGARDED THE QUALITY OF LIFE OF FRUIT BELT AND ALLENTOWN RESIDENTS BY FAILING TO EFFECTIVELY ADDRESS GENTRIFICATION AND PARKING ISSUES. As mayor, Byron Brown is a member of the Board of Directors of the Buffalo Niagara Medical Campus (BNMC). Rather than using that position as a means of protecting the adjoining residential neighborhoods, he has ignored the recommendation in the BNMC “2010 Master Plan Update” that the City of Buffalo act as “lead agency” and prepare a “Generic Environmental Impact Statement” to guide BNMC’s future development and reduce adverse impacts on the surrounding communities. As usual, big, new buildings, not human beings, were Mr. Brown’s first priority.

MAYOR BROWN’S APPOINTEES HAVE RENDERED SEQRA – THE STATE ENVIRONMENTAL QUALITY REVIEW ACT – TOOTHLESS AND VIRTUALLY MEANINGLESS. SEQRA is a state law intended to empower government decision-makers and the public by providing objective information and data whenever a proposed development project or policy might have a significant adverse impact on any one or more aspect of the environment. During the past two years, Mayor Brown’s staff has only recommended preparation of an Environmental Impact Statement – “the heart of SEQRA” – once. And, disturbingly, the environmental assessments are performed – not by the Common Council, Zoning Board of Appeals, or City Planning Board – but by the Mayor’s planning staff, virtually guaranteeing a pro-development disregard of impacts on natural resources, the character of existing neighborhoods, traffic, etc.

MARK SCHROEDER IS A MAN OF INTEGRITY AND COMPASSION. I had not met Mark Schroeder until I struck up a conversation with him at a rally-for-science several months ago. Since then, I have attended a number of debates and community meetings and observed him answering questions and explaining his concerns and plans. Each time, I have been impressed by his candor, humility, compassion for Buffalo’s residents and neighborhoods, his goals, genuineness, sense of humor, and decency. I can understand why the pro-Byron-Brown Buffalo News described Mark Schroeder in July 2016 as “among Western New York’s most consistently valuable public officials since he first became an Erie County legislator in 2002.”

I am convinced that Mark Schroeder is the kind of compassionate and forward-looking public official that the residents of the City of Buffalo – the entire City of Buffalo – deserve.

If you would like to learn more about Mark Schroeder’s plans for the City of Buffalo – or, perhaps, volunteer to help him unseat Mr. Brown – here are links to his website: https://www.markforbuffalo.com/, and his campaign’s Facebook page: https://www.facebook.com/markforbuffalo/.

With All Due Respect,

Art Giacalone

Is Buffalo’s Green Code dead?

Posted by Arthur J. Giacalone on August 25, 2017
Posted in: Buffalo Law Journal Columns by AJG, Byron Brown, Green Code. Leave a comment

The August 21, 2017 print version of the Buffalo Law Journal published my column – titled “Is Buffalo’s Green Code dead?” – which replies to Assemblyperson Sean Ryan’s tweet, following the July 19 approval of a fistful of variances for Chason Affinity’s “1111 Elmwood” project, proclaiming, “That’s it for the Buffalo Green Code…”

Here’s my basic premise:  What died when the ZBA approved the Chason Affinity project is the optimistic-but-misguided belief that the Green Code would provide residents with a meaningful tool to protect and enhance the quality of life and historic fabric of Buffalo’s neighborhoods. What remains intact and thriving is the true intent of the authors of the UDO: implementation of a land use law that, in the words of a City Hall press release, “promotes investment” by offering developers “predictable administration and by-right development.”

The column is available on-line at the BLJ website.

With All Due Respect,

Art Giacalone

Buffalo must address homegrown bigotry

Posted by Arthur J. Giacalone on August 21, 2017
Posted in: Carl Paladino, Christopher Scanlon, City of Buffalo, South Buffalo. Leave a comment

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The confluence of two stories persistently in the news this past week – the white nationalist rally in Charlottesville, VA and President Trump’s responses to the deadly violence, and State Education Commissioner Elia’s Aug. 17, 2017 decision to remove Carl Paladino from the Buffalo school board, and conjecture on the “real” reason for Paladino’s removal and the likelihood of success of an appeal from that ruling – begs me to ask: How should we, as Buffalonians, address signs of bigotry and hatred in our own neighborhoods and communities?

One need not journey to a former confederate state to be confronted by forceful symbols of the white supremacist movement.

Travelers on Indian Church Road, a block from Seneca Street in South Buffalo – whether on foot or bicycle or in a car – are reminded daily of that fact:

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The immediate “target” of this flag-waving expression of free speech are – it appears – the non-white attendees of the church diagonally across the street from this otherwise well-kept South Buffalo residence:

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There is no doubting the aggressive intent of the display of two large and one small confederate battle flags and a small “don’t tread on me” flag. A sign placed in the midst of waving flags proclaims to anyone who approaches the house: “WARNING – IF YOU CAN READ THIS, YOU ARE IN RANGE.”  Here is an (admittedly, poor-quality) image of the sign:

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There is also little doubt that the sentiments reflected in the display at the corner of Indian Church Road and Parkview Avenue reside in other hearts and minds in Western New York. A March 2016 article – based on racist language used on Twitter – ranked Buffalo, NY among the ten most racist cities in America. [Also see, “The most racist places in America, according to Google”, as well as an earlier post at this site.]

It was reassuring to learn that three elected officials who represent South Buffalo (where I have lived the past two years) – South District Common Council Member Chris Scanlon, Erie County Legislator Patrick Burke, and State Senator Tim Kennedy – participated in a prayer vigil on Wednesday August 16th in Durham Memorial AME Zion Church on Buffalo’s East Side. According to Buffalo News reporter Harold McNeil, speakers in attendance vowed that the hatred and bigotry that descended on Charlottesville on August 12th “will not be allowed to happen here.”

I sent an email to Messrs. Scanlon, Kennedy and Burke on August 17th, forwarding photos of the confederate flag display on Indian Church Road. So far, Pat Burke has responded, and he has expressed his interest in going to speak with the owner of the flag display.  I also had a constructive phone conversation this afternoon with a member of Tim Kennedy’s staff.

It is not clear to me what we can and should be doing in Buffalo when we experience symbolic expressions of racial animosity and resentment. I fully acknowledge the “right” of Americans to display whatever flags they wish. But, I also recognize that we – citizens and our elected officials – must find ways to reach out to our neighbors and family members to begin and sustain meaningful dialog and discussions to constructively address the learned hatred and biases that permeate all-too-much of our local and national psyche.

In the words of Nelson Mandela:

“No one is born hating another person because of the color of his skin, or his background, or his religion. People must learn to hate, and if they can learn to hate, they can be taught to love, for love comes more naturally to the human heart than its opposite.” ― Nelson Mandela, Long Walk to Freedom

With All Due Respect,

Art Giacalone

P.S. I’m apparently not the only Western New Yorker to see a connection between the Charlottesville-spurred discussions concerning symbols of the Confederacy, and the toppling of Mr. Paladino from his high horse. See the whimsical cartoon drawn by the uber-talented Adam Zyglis – titled “Finally Removed” – posted at the Buffalo News website on August 17, 2017:   http://buffalonews.com/2017/08/17/adam-zyglis-finally-removed/.

A primer on obstruction, collusion, impeachment

Posted by Arthur J. Giacalone on August 15, 2017
Posted in: Buffalo Law Journal Columns by AJG, Uncategorized. Leave a comment

I somehow forgot to post a quick blurb a month-and-a-half ago regarding a column I wrote that was published in the June 26, 2017 print version of the Buffalo Law Journal, titled “A primer on obstruction, collusion, and impeachment.” [Fortunately, with the person currently holding the position of U.S. President, it may be many years before the information in the article becomes outdated.]

The column is available on-line at the BLJ website.

With All Due Respect,

Art Giacalone

Poor planning produces predictable parking problems

Posted by Arthur J. Giacalone on August 8, 2017
Posted in: B-N Medical Campus, Buffalo Law Journal Columns by AJG, Buffalo News, Byron Brown, City of Buffalo, Development, Fruit Belt. Leave a comment

The August 7, 2017 print version of the Buffalo Law Journal published my column – titled “Poor planning produces predictable parking problems” – in which I opine regarding the ways the Buffalo Niagara Medical Campus [BNMC] board of directors, the City of Buffalo, and New York State have failed the Allentown and Fruit Belt neighborhoods by not effectively addressing beforehand foreseeable parking headaches resulting from the growth of the medical campus.

The column is available on-line at the BLJ website.

Here are links to various newspaper articles and documents referred to in the Buffalo Law Journal piece:

– A July 26, 2017 Buffalo News editorial entitled “Medical Campus parking squeeze must be dealt with.”

– An April 7, 2017 Buffalo News editorial entitled “Forward-looking Medical Campus is working on parking crunch.”

– BNMC’s “2010 Master Plan Update.”

– Buffalo News articles from May 16, 2016, June 17, 2016, and March 15, 2017.

– “Quick Facts” regarding the new SUNY at Buffalo medical school complex.

Note: After reading the BLJ column, you might agree with the conclusion that I have reached: Given his role as both the Mayor of the City of Buffalo and member of the Board of Directors of the Buffalo Niagara Medical Campus, Inc., the following statement by Byron Brown rings awfully hollow: “I made Fruit Belt parking my top legislative priority.”

With All Due Respect,

Art Giacalone

Rethinking the term “Gadfly”

Posted by Arthur J. Giacalone on August 7, 2017
Posted in: Uncategorized. Leave a comment

Here’s an email that I sent on August 4 to Elizabeth Licata, the editor-in-chief of Buffalo Spree – “The Magazine of Western New York” – that I thought I’d share:

Dear Elizabeth,

I discovered yesterday that Buffalo Spree had included me in its “BEST OF WNY 2017”  list as “Best Gadfly.”  I find the award humbling – in a number of ways – and greatly appreciate the description that followed my name.

Perhaps you’ll find amusing my changing comfort level with the label “gadfly.”

Several months ago, I expressed to my twin brother David [who, for a number of years, has been playing a role similar to mine in his current hometown of Schenectady – see his blog at https://snowmenatthegates.com/about/] my discomfort with the use of the word “gadfly” to describe a person who persistently engages in the sort of advocacy activities he and I find ourselves immersed in.  Someone had used the term to describe him.  I explained that the word has always carried with it – from my perspective – an implication that the individual superficially flits from issue to issue criticizing everything without doing the requisite homework.  He and I have always attempted to thoroughly research and meaningfully address the matters that concern us.

My Jesuit-trained brother (Rochester’s McQuaid high school and Georgetown’s School of Foreign Service) tried to assure me – to no avail – that history has known many noteworthy and honorable gadflies, not the least of which being Socrates.

[Back to your magazine.]  It was a bit confusing to me when I received an email yesterday morning from a business trying to sell me a commemorative wall plaque regarding Buffalo Spree’s “The Best of WNY 2017” awards.  I had no idea what the message was referring to.  The August edition of your magazine had arrived in the mail (surprisingly) a number of weeks ago.  I briefly glanced at it – noting the attractive photo of the Kim and Terry Pegula, the “Best Power Couple” – and placed it at the corner of my desk, expecting eventually to relaxingly read its pages.  That day never did arrive, and the Buffalo Spree slowly became buried under publications from my alma maters (U. of R. and Harvard law school).

When I dug up the “Best of…” edition, and discovered (adjacent to the smiling faces of the Pegulas) the “Best Gadfly” piece, I had mixed feelings.  I was grateful for the thoughtful description, but my lifetime of discomfort with what-I-viewed as the implied superficiality of a gadfly caused me concern.

So I did what I’ve always urged my children (now 20 and 17) to do:  I picked up my most recent dictionary, a “Merriam Webster’s Collegiate Dictionary” 10th Edition (1993).  I discovered the following definition for “gadfly” (after reference to “any of various flies … that bite or annoy livestock”):   “A person who stimulates or annoys esp. by persistent criticism.”  It was comforting to see a definition that did not appear to qualify or demean the nature of the criticism.

So, although I still have some reservations about the label “gadfly,” I suddenly find myself – thanks to the Buffalo Spree award – a bit more open-minded regarding its connotations.

Sincerely,

Art Giacalone

P.S.  Given my efforts over the years to thoroughly research issues, and a belief that I am a fairly observant person, it was humbling to realize that I had managed to admire the photo of the Pegulas my first time through the magazine, without noticing my own name in bright red print immediately adjacent to the Power Couple’s smiling faces.

P.P.S.  FYI:  Here are various bits of information and miscellany regarding “gadflies” that my friends have sent to me the past 24 hours or so:

Gadfly - self-discovery cartoon

Gadfly - Socrates bust

Greek for gadfly is muops. It’s what the Athenian fathers called Socrates when they were working up his prosecution and execution of Socrates as the “gadfly” of the state (4thC BC).

 

Plato in his Apology for the life of Socrates reminds us that all societies need a “gadfly” to sting the “steed” of state into acknowledging its proper duties and obligations:

I am the gadfly of the Athenian people, given to them by God, and they will never have another, if they kill me. And now, Athenians, I am not going to argue for my own sake, as you may think, but for yours, that you may not sin against the God by condemning me, who am his gift to you. For if you kill me you will not easily find a successor to me, who, if I may use such a ludicrous figure of speech, am a sort of gadfly, given to the state by God; and the state is a great and noble steed who is tardy in his motions owing to his very size, and requires to be stirred into life. I am that gadfly which God has attached to the state, and all day long 1and in all places am always fastening upon you, arousing and persuading and reproaching you. You will not easily find another like me, and therefore I would advise you to spare me.

About this Quotation:

According to the words put into his mouth by Plato, Socrates believed that he had been sent by the gods to act as a “gadfly” to the Athenian state. He saw the state as “a great and noble steed” which had to be reminded of its proper duties. Socrates believed he did this by stinging the steed of state “all day long and in all places”. No wonder it wanted to get rid of him by forcing him to commit suicide!

[From a retired college librarian] Here is the OED on gadfly:  1. The popular name of a fly which bites and goads cattle, esp. a fly of the genus Tabanus or of the genus Œstrus; a bot-fly, breeze.

1626   T. Hawkins tr. N. Caussin Holy Court 120   It was like..as a bull stung with a Gad-fly.

1744   J. Thomson Summer in Seasons (new ed.) 75   Light fly his Slumbers, if perchance a Flight Of angry Gad-Flies fasten on the herd.

1831   W. Youatt Horse xi. 201   A species of gad-fly, the œstrus equi, is in the latter part of the summer exceedingly busy about the horse.

1841   R. W. Emerson Hist. in Ess. 1st Ser. i. 18   The nomads of Africa were constrained to wander by the attacks of the gadfly, which drives the cattle mad.

Thesaurus »

 2. fig. One who irritates, torments, or worries another. Also (after Latin œstrus), an irresistible impulse to some course of action.

a1657   G. Daniel Trinarchodia: Henry IV cccxlvii, in Poems (1878) IV. 87   Rather then have the Gad-flyes of an ill-Disposed Army on their shoulders feed.

1807   Salmagundi 14 Aug. 279   It is our misfortune to be frequently pestered..by certain critical gad-flies.

1864   J. R. Lowell Fireside Trav. 314   Bitten with the Anglo-Saxon gadfly that drives us all to disenchant artifice.

Gadfly - Columbia U. cover

Gadfly - DAG's collage

Uneven playing field for developers and residents

Posted by Arthur J. Giacalone on July 25, 2017
Posted in: Buffalo Law Journal Columns by AJG, Development, Waterfront. Leave a comment

The July 24, 2017 print version of the Buffalo Law Journal published my column – titled “Uneven playing field for developers and residents” – where I provide a brief overview of the obstacles faced by residents when developers seek to circumvent zoning and environmental laws, and then discuss three recent examples: the so-called “doughnut hole” approach to rezoning, the “second bite of the apple” phenomenon, and a developer’s failure to timely share information.

The column is available on-line at the BLJ website.

For a lengthier discussion of the obstacles faced by residents when battling developers, here’s a piece I prepared a decade ago as part of a Continued Legal Education seminar:  Zoning Challenges-Overcoming Obstacles June 2007.  [Note:  Things have, in my humble opinion, gotten worse, not better, for residents during the past ten years.]

And, here is a letter that I sent on July 1, 2017 to a New York State Supreme Court Justice when – thanks to a June 29, 2017 article  in the Buffalo News – I learned of a developer’s “failure to timely share info” with the State Department of Environmental Conservation:  Wooster Art. 78 – ltr to CNugent-Panepinto 07-01-17.

With All Due Respect,

Art Giacalone

Dennis Vacco’s affinity to “free speech protections” depends on the client.

Posted by Arthur J. Giacalone on July 11, 2017
Posted in: Buffalo Law Journal Columns by AJG, Carl Paladino, Chason Affinity, Dennis C. Vacco, Elmwood Village, Lawyer's 1st Am. rights. Leave a comment

[If you are interested in the “retaliatory First Amendment claim” asserted by attorney Dennis Vacco on behalf of the controversial Carl Paladino, please see my column, “Did Carl Paladino engage in protected free speech?” in the July 10, 2017 print version of the Buffalo Law Journal, and on-line here.]

What do Carl Paladino, school board member, developer and former gubernatorial candidate, and Mark Chason, developer and president of the Chason Affinity  Companies, have in common?

They both turned to former State Attorney General Dennis C. Vacco and the firm where he is a partner, Lippes Mathias Wexler Friedman LLP, for legal representation.

What is stunningly different in Mr. Vacco’s representation of his two clients?

In his current role as the lawyer representing Mr. Paladino in the proceedings to remove Mr. Paladino from the Buffalo School District’s Board of Education, Mr. Vacco is a champion of the First Amendment’s Free Speech clause.

In stark contrast to his free speech advocacy on behalf of Mr. Paladino, Mr. Vacco appeared oblivious to a lawyer’s First Amendment rights when he argued several years ago on behalf of the Chason Affinity subsidiary, Affinity Elmwood Gateway Properties LLC, for a gag order restricting the freedom of speech of his opposing counsel in a civil lawsuit.

Affinity was plaintiff in litigation brought to extinguish deed restrictions from 1892 on Chason Affinity’s properties at the southeast corner of Elmwood and Forest avenues in the City of Buffalo. I was the opposing counsel who had displeased Mr. Chason (“Of course, if it wasn’t for him there would be a beautiful development on Elmwood.”), and, as a result, was aggressively pursued by a handful of lawyers at the Lippes Mathias firm, including Dennis Vacco. They sought – through the use of a Temporary Restraining Order – not only to bar my communications with Kaleida Health, a non-party health care provider, but also to prevent me from contacting the City of Buffalo regarding property maintenance violations at Affinity’s Elmwood Avenue properties. Their accusations against me bordered on the preposterous, and included baseless claims that I had violated the New York Rules of Professional Conduct.

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The judge who oversaw – and, even aided and abetted the Vacco team in their efforts to stifle me – was the now-disgraced John A. Michalek.

The events that transpired in “His Honor’s” courtroom from November 2012 through March 2013 are detailed in the Appellants’ Brief that I prepared to challenge the temporary restraining order and subsequent “permanent” order issued by Michalek at the behest of Dennis Vacco and his colleagues at Lippes Mathias. The series of court orders precluded me from communicating with Kaleida Health, concerning the subject matter of the deed restriction lawsuit.

In the end, I spent 409 days – from November 20, 2012 through January 2, 2014 – with my First Amendment right to free speech restricted by the “gag order” pursued by Mr. Vacco on behalf of Mark Chason’s development company. Fortunately, on January 3, 2014, the New York State Appellate Division, Fourth Department, ruled unanimously that the lower court had “abused its discretion” when Michalek prohibited me from communicating with Kaleida Health, and struck down the impediment to my free speech. “Justice” Michalek’s orders were so clearly contrary to the court rule relied upon by the lower court, that the appellate court didn’t need to address the constitutional issues raised in the appeal. [Note: Courts prefer not to render decisions based on constitutional claims if lesser laws or regulations can provide the basis for their rulings.]

I find the contrast between Carl Paladino’s words that the former State Attorney General finds worthy of First Amendment protection, and the letter-to-the-editor that I wrote that led to the prior restraint of my free speech rights, so striking that I’ll set them out here:

CARL PALADINO’S COMMENTS IN DECEMBER 23, 2016 EDITION OF ARTVOICE THAT DENNIS VACCO CHARACTERIZES AS “LOW AND UNNECESSARY”:

What do you want for 2017?

Carl Paladino DEVELOPER, SCHOOL BOARD MEMBER, POLITICAL ACTIVIST:

  1. Obama catches mad cow disease after being caught having relations with a Herford (sic).  He dies before his trial and is buried in a cow pasture next to Valerie Jarret, who died weeks prior, after being convicted of sedition and treason, when a Jihady cell mate mistook her for being a nice person and decapitated her.
  2. Michelle Obama.  I’d like her to return to being a male and let loose in the outback of Zimbabwe where she lives comfortably in a cave with Maxie, the gorilla.

…

ARTHUR GIACALONE’S LETTER TO THE EDITOR, PUBLISHED 09-10-2012 IN THE BUFFALO NEWS, THAT MR. VACCO CLAIMED IN OPEN COURT WAS “SCURRILOUS” (in other words, vulgar and evil):

August 28, 2012  

Re: Affinity is a risky choice for Kaleida/Gates Circle

Dear Editor:

            Chason Affinity’s proposal to re-use the Millard Fillmore Gates Circle Hospital site as a veterinarian teaching hospital may well be “visionary.” But more than an inspired idea will be needed if Kaleida Health is to reach its laudable goals for re-use of the prominent landmark.

            The expressed purpose of Kaleida’s million-dollar development competition was to “get the best ideas and the most capable developers to do something great” with the hospital site – great for the neighborhood, city, developer and Kaleida. For that goal to be met, Chason Affinity will need to substantially up its game from its performance the past several years at the southeast corner of Elmwood and Forest avenues.

            In 2007, with vague plans to construct student housing, a Chason Affinity subsidiary signed a contract to buy several century-old buildings at Elmwood and Forest. A year-and-a-half later, despite a risky financial market, a group of unhappy neighbors, and deed restrictions prohibiting “any business establishment,” Affinity proceeded with the purchase, spending nearly $2 million for eleven parcels. When the developer subsequently announced its vision for the “gateway to the Elmwood Village,” it proposed construction of a 6-story, 175,000 square-foot “mixed use” project poorly suited for the neighborhood, rather than the creative re-use of the quintessential “Elmwood Village” properties.    

            Unable to convince the adjoining owners to approve its project, Affinity is now in court seeking to extinguish the restrictive covenants that protect its neighbors. During the intervening years, the developer’s properties have been allowed to deteriorate in plain sight of residents, commuters and tourists. Affinity has been recently cited for code violations at eight of its properties.

            Chason Affinity may have won the competition, but Kaleida may want to think long and hard before designating it the developer of the Gates Circle site.

                                                            Sincerely,

                                                           Arthur J. Giacalone

In case you are curious, Kaleida Health did end up rethinking its approach to the former Millard Fillmore Gates Circle Hospital site “after Chason Affinity was unable to recruit a veterinary school as previously planned.” [See Kaleida Health Press Release issued 09/24/2013.]

With all due respect,

Art Giacalone

APPENDIX:

The “SCHOOL BOARD MEMBER CODE OF CONDUCT” of the City of Buffalo Board of Education provides the following: “As a member of my Board of Education, I will strive to improve public education, and to that end I will:… (g) Abide by the District’s Code of Ethics.

The “CODE OF ETHICS FOR BOARD MEMBERS AND EMPLOYEES OF THE BUFFALO CITY SCHOOL DISTRICT” expressly states: “V. REQUIREMENTS … (h) Confidentiality Requirements of Public Information and Records: (i) No board member or employee shall disclose confidential information acquired by them in the course of their official duties to further their personal interests or the interests of anyone in his/her family. (ii) No Employee or Board Member shall disclose the following matters discussed in executive session: (4) Discussions regarding proposed, pending or current litigation; (5) Collective negotiations under the Taylor Law;…

Section 306 of the state’s Education Law empowers the Commissioner to remove a school officer (including a member of a board of education), after a hearing (with the right of representation by counsel), “guilty of any willful violation or neglect of duty under this chapter, or any other act pertaining to common schools or other educational institution participating in state funds, or willfully disobeying any decision, order, rule or regulation of the regents or of the commissioner of education.” Section 2559 of the Education Law confirms that “for cause shown” – and after giving notice and opportunity of defense – the commissioner of education may remove any member of a board of education for “willful disobedience of any lawful requirement of the commissioner of education, or a want of due diligence in obeying such requirement or willful violation or neglect of duty.”

Also, Section 805-a of the state’s General Municipal Law [GML] expressly states that “No municipal officer or employee shall: … (b) disclose confidential information acquired by him in the course of his official duties or use such information to further his personal interest.” A “municipal officer or employee” is defined to include “members of any administrative board, commission or other agency” – whether paid or unpaid – and, “municipality” expressly includes a school district. GML Section 805-a(2) provides the following: “In addition to any penalty contained in any other provision of law, any person who shall knowingly and intentionally violate this section may be fined, suspended or removed from office or employment in the manner provided by law.”

Disappointed by Councilmember Joel Feroleto

Posted by Arthur J. Giacalone on June 27, 2017
Posted in: City of Buffalo, Elmwood Village, Green Code, Joel Feroleto, Political Contributions. 2 Comments

Perhaps my expectations were too high.

Delaware District Councilmember Joel P. Feroleto has an impressive pedigree. His mother, the Hon. Paula L. Feroleto, was elected a State Supreme Court Justice in 2004, and has functioned as the Administrative Judge for the 8-county Eighth Judicial District since 2009. His father, John P. Feroleto, is a well-respected personal injury lawyer, known for his hard work and trial skills.

Perhaps my desire to see the growth of a new generation of leaders on the City of Buffalo Common Council – elected officials willing to provide a counter-weight to Mayor Byron Brown’s developers-before-residents approach to governing – created a false sense of hope.

No matter the reason, I am thoroughly discouraged by Joel Feroleto’s handling of Chason Affinity’s proposed mixed-use “1111 Elmwood” project at the southeast corner of Elmwood and Forest avenues. I expected the Common Council’s only lawyer to fight for the integrity of the zoning and development process, and to attempt to preserve the letter and spirit of the City’s most significant piece of legislation in many years – the Uniform Development Ordinance (UDO), known informally (and, misleadingly) as the “Green Code.”

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[Full disclosure: For large portions of the past ten years, I have represented and assisted in various ways residents and property owners on Granger Place and Forest Avenue fighting to preserve the character of their historic Elmwood Village neighborhood and prevent the demolition of century-old buildings.]

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The sources of my disappointment in Joel are many. Here’s a partial list:

Timing of political contributions. On September 7, 2016, Chason Affinity’s team of consultants officially submitted the developer’s application in furtherance of the “1111 Elmwood” project. In addition to site plan approval from the City Planning Board, and variances from the Zoning Board of Appeals (ZBA), the proposed development could not proceed without obtaining two important approvals from the Common Council: a rezoning of two Forest Avenue parcels, and a restricted use permit to allow demolition of eleven existing structures.

Within 20 days of the 1111 Elmwood project filing, Councilmember Feroleto received the following contributions from the Chason Affinity team: $500 from the property owner, Affinity Elmwood Gateway Properties; $500 from Chason Affinity’s architectural firm, Camina Wood Morris; and, $250 from Chason Affinity’s lawyers, Bond, Schoeneck & King. None of these contributors had donated to Joel’s councilmanic campaign prior to the filing of the 1111 Elmwood application.

Joel also received a September 19, 2016 donation of $500 from Gerald Buchheit. The general contractor for Chason Affinity’s proposed Elmwood/Forest project, RP Oak Hill Building Co., happens to be Buchheit’s partner in developing Queen City Landing, the controversial 23-story, glass-and-steel tower on Buffalo’s Outer Harbor. [Note: Councilmember Feroleto voted to approve the restricted use permit for the 23-story tower in June 2016, despite the fact that the proposed Green Code called for a 6-story building height maximum for the Fuhrman Blvd. site.]

Given an attorney’s obligation to be keenly aware of even the appearance of a conflict-of-interest, it would have been admirable and appropriate for Joel – in his role as the only lawyer on Buffalo’s Common Council – to give back the donations he received from the Chason Affinity team in light of the pending 1111 Elmwood project.

Note: Speaking of political contributions, Councilmember Feroleto received a $1,000 contribution from Mayor Byron Brown’s “Brown for Buffalo” campaign in October 2015. That’s one way for a city’s chief executive to convince a legislator not to rock the proverbial boat.

Refusal to take leadership role. I contacted Joel and Councilmember David Rivera (whose district also includes a portion of the Elmwood Village) early in October 2016. [I did not know at that time of the political contributions to Feroleto from the Chason Affinity team.] I urged the two legislators to take two steps to help preserve the unique character of the Elmwood Village:

First, have the Common Council seek “lead agency” status under the State Environmental Quality Review Act (SEQRA) to ensure that potential adverse impacts of the proposed project would be fully and objectively analyzed. My email message to Feroleto and Rivera included the following statement:

“It would not serve the residents of Buffalo for its legislative body to allow critical determinations that may impact the Elmwood Village for decades – and severely impact the character of the city’s most attractive neighborhood – to be made by another entity, no matter what justification you may put forth.  Being lead agency on this one project should not require an overwhelming amount of time or effort – there are experienced residents who will gladly assist you.  And, importantly, pursuant to SEQRA, as lead agency, the Common Council has the authority under the SEQRA regulations, to retain an outside consultant to review the project sponsor’s DEIS at the expense of the project sponsor:  “… [T]he lead agency may charge a fee to the applicant in order to recover the actual costs of … reviewing the draft and/or final EIS.”  [See 6 NYCRR 617.13(a).]”

To my chagrin, Joel provided the following excuse for not seeking lead agency status: “The Common Council already has too much on its plate.

Second, promptly commence the proper steps needed to lawfully enact a moratorium on development, either city-wide or in select neighborhoods such as the Elmwood Village, until the proposed Green Code was enacted and placed into effect. [I even offered to prepare the first draft of the necessary papers.]

I never received a response in any form from Councilmember Feroleto regarding a moratorium. He most likely found the thought of taking this bold step too controversial, and contrary to the Mayor’s wishes.

Parroting of the developer’s positions. For the past half year or so, conversations with Joel regarding the Chason Affinity project became increasingly frustrating. Whether the Councilmember initiated a topic, or replied to my perspective on pertinent issues, the words that came out of his mouth consistently echoed Chason Affinity’s positions (although the Councilmember would not publicly confirm that he was in favor of the project). For example:

*** Although the State Office of Historic Preservation concluded that the proposed demolition of the 11 century-old building would have a significant adverse impact on the Elmwood Village Historic District (East), [see SHPO’s 12-19-2016 letter] Joel took the position that the actual impact would not be great because none of the individual building has substantial architectural or historic significance.

*** Although none of the existing structures on Chason Affinity’s property, the adjoining Granger Place and Forest Avenue residences, the commercial buildings across Elmwood Avenue from the proposed 1111 Elmwood site, or the single-family homes on the east side of Elmwood Avenue north of Forest Avenue, exceed two-and-a-half stories in height, Joel insisted that Chason Affinity’s 4-story, 315-foot wide building would not be out-of-scale with the adjoining neighborhood because the stepped-back upper floors and various facades along Elmwood Avenue would give the impression from street level of multiple, three-story buildings.

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*** Despite the fact that the various projects proposed by Chason Affinity during its eight years of owning the properties at the southeast corner of Elmwood & Forest never complied with the existing zoning laws, and never reflected the character and scale of the Elmwood Village, Joel praised the developer for being open, transparent, and willing to compromise.

Affinity schematic 10-16-2010

Lack of willingness to fight for the integrity of Green Code/zoning process. During the weeks preceding the recent public hearing before the ZBA regarding the proposed 1111 Elmwood project, I sent emails and supporting documentation to Councilmember Feroleto of a number of significant defects in Chason Affinity’s application that had been ignored by the city’s Planning Department, including, for example, the following:

(i) The developer had failed to follow the proper procedures – including a public hearing before the City Planning Board – when it allegedly consolidated its ten (10) Elmwood Ave. parcels into one 321.5-foot wide lot in the fall of 2016. Under the Green Code/UDO, no more than 2 lots can be combined on Elmwood Avenue if they had not been consolidated prior to the enactment of the Green Code.

(ii) The Green Code/UDO requires a project sponsor to “select” one building type it proposes to construct, and then comply with the standards for that building type. Chason Affinity’s proposed project violates this requirement by treating its proposed structure as both a “Commercial Block” building where convenient, and “Stacked Units” building where a Commercial Block building is inappropriate.

(iii) The Green Code/UDO requires the ground floor of a “Commercial Block” building – the type of building allowed on the Elmwood Avenue portion of the Chason Affinity property – to consist of “retail or service uses” only. Despite this mandate, 153-feet of the Elmwood Avenue frontage of the proposed project contains residential condominium units, and not the required commercial uses.

Joel never addressed these issues in his replies to my emails, and, to my knowledge, never publicly discussed or acknowledged these defects in the Chason Affinity application. Disturbingly, Councilmember Feroleto appears not to care that what many residents consider the Common Council’s most significant legislative accomplishment in decades – the Green Code -was being disregarded by Mayor Brown’s planning staff.

Preference for Penhurst Park elites and popularity polls.

Our state’s highest court made it clear nearly a half-century ago that zoning determinations must be “more than just a Gallup poll.” That reminder fell on deaf ears as Joel – finally breaking his public silence – endorsed the Chason Affinity project at the June 21st ZBA public hearing. According to a Buffalo News article, “Feroleto noted that ‘there is significant support’ in the ‘immediate neighborhood’ around the project, citing letters and petitions to the ZBA from 80 percent of homeowners on Penhurst Place (sic)…”

Councilmember Feroleto’s embrace of the position taken by Penhurst residents – whose enclave of high-priced homes lies outside of the Elmwood Village boundaries and is protected from any direct adverse impacts associated with the demolition, construction, or operation of the Chason Affinity project – rather than the concerns expressed by adjacent Granger Place and Forest Avenue residents, or the plight of the students and non-affluent tenants being displaced by Chason Affinity’s eviction notices, says volumes about Joel, his values, and how he arrives at his decisions as an elected legislator.

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I could go on, but I have more important things to do.

With all due respect,

Art Giacalone

Motions to re-argue – who’s keeping score?

Posted by Arthur J. Giacalone on June 14, 2017
Posted in: Buffalo Law Journal Columns by AJG, Judiciary. Leave a comment

The June 12, 2017 print version of the Buffalo Law Journal published my column – titled “Motions to re-argue – who’s keeping score?” – where I humbly discuss my “batting average” when making these sensitive requests to a judge who has rendered a decision I believe is wrong. I also offer some reflections on a handful of motions that I think might provide insight into the judicial mindset.

The column is available to the public on-line at the BLJ website.

Hope you’ll find the piece informative, at least mildly entertaining, and, perhaps, a bit disturbing.

With All Due Respect,

Art Giacalone