Developer of planned Elmwood/Forest hotel wins court ruling - The Buffalo News

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Developer of planned Elmwood/Forest hotel wins court ruling

Chason Affinity Cos.’ plan for a mixed-use development at the corner of Elmwood and Forest avenues in Buffalo took a step forward with a court ruling in its favor on Friday.

State Supreme Court Justice John A. Michalek sided with the developer over a group of property owners in a dispute over enforcement of deed covenants that could block the project. The property owners’ attorney vowed to appeal.

The decision is the latest turn in a long-running debate over the future use of properties at the southeast corner of Elmwood and Forest. The location is a gateway to the Elmwood Village and is near SUNY Buffalo State, the Albright-Knox Art Gallery and Burchfield Penney Art Center.

Chason Affinity introduced its plan in 2009, and has proposed a combination of residential, hotel, restaurant and retail uses. The project could include 125 hotel rooms, 20 to 30 residential units, street-level retail or restaurant spaces along Elmwood, and multilevel indoor parking.

Chason Affinity officials were traveling and unavailable for comment Friday afternoon when word of the decision came out. However, spokesman Matt Davison said the firm is “going to have some additional details coming out in the near future” about its plans for development now that the court has ruled.

“Exact details of the development are being worked out, and Chason Affinity intends to move forward as quickly as possible and really focus a lot of energy on the project,” Davison said. The development would replace several buildings on the properties where businesses currently operate.

“I’m very excited about the ruling,” said Dennis C. Vacco of Lippes Mathias Wexler Friedman, who represented the developer in the case. “I believe Judge Michalek got the law exactly right.”

The project still needs approvals from the city before construction could begin, Vacco said. “The typical review process for a project of this sort will move forward in earnest.”

But it could face another legal challenge. Arthur J. Giacalone, the attorney for the property owners, said: “We are disappointed but not surprised by the judge’s decision.” Giacalone said the property owners will appeal. “We will provide more detailed comments when we have had time to digest the entire decision,” he said.

Some neighboring property owners have objected to Chason Affinity’s plans for a development of the size and scope at that location. A different developer, Savarino Cos., in 2006 had proposed a hotel and retail complex at the intersection, but ended up scrapping its plan out of concern about the legal barrier the deed restrictions might create.

During the two-week trial, Chason Affinity sought to have restrictive covenants on the properties “extinguished” to allow the development to move forward.

Vacco argued that the “character of the community” had changed dramatically since the covenants in question were put into place in 1892.

Vacco also contended that the restrictions in question did not benefit the property owners who were trying to enforce them. The case involved owners of six properties that are either adjacent or close to where the development would be built.

Vacco argued the 19th century covenants dated to a time when the properties in question were vacant or farmland, not the bustling business corridor that Elmwood Avenue is today. Businesses have sprouted on both sides of Elmwood in that area in the decades since the covenants were put into place, he said.

In his ruling, Michalek said he “sympathizes and empathizes with the position of the (property owners)” about their push to enforce the covenants.

“One must respect their interest in maintaining their property, their neighborhood, etc., and having the courage to enter to fight to protect what they believe is vital to their neighborhood,” he wrote.

But Michalek said “what it comes down to – is attempts by modern interpretation of the restrictive covenants to the proof before the court and how the law sets out how the covenants must exist or apply, i.e., no business whatsoever.”

Vacco also sought to demonstrate that restricting the properties to residential use only was “not practical.” Michalek agreed, saying “the real property is not capable of being put to use required by the restrictions in the restrictive covenants and therefore again, are extinguished on the (Chason Affinity) properties.”

News Business Reporter Jonathan Epstein contributed to this report. email:

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