The fate of a proposed 23-story apartment tower on Buffalo’s Outer Harbor could be decided as early as Wednesday.
That’s when State Supreme Court Justice Donna M. Siwek said she will rule on lawsuits by four petitioners and Buffalo Niagara Riverkeeper, who seek to void the approval of Queen City Landing’s mixed-use project at the former Freezer Queen site at 975 Fuhrmann Blvd.
Siwek heard nearly four hours of oral arguments late last week.
Those bringing the lawsuits allege the city didn’t follow state environmental laws when it approved the project earlier this year.
Because of that, the proposed project could cause significant harm to fish like the threatened lake sturgeon, birds like the threatened bald eagle and common tern as well as the motoring public, according to those who filed suit.
The tower’s developer, Gerald Buchheit, believes the project, being completed under the Brownfield Cleanup Program, will actually help the Outer Harbor’s environment.
Buchheit’s attorneys said it would result in the demolition of a decrepit asbestos-ridden building on the 20-acre property. It would clean up nearly a century’s worth of industrial toxins on the site. And it would fix a problem with contaminated water running off the site into nearby Lake Erie.
It’s also a $60 million to $85 million investment in Buffalo.
“We believe the City of Buffalo, the Planning Board and the Common Council did a very appropriate and thorough review of this project,” said Phil Pantano, a spokesman for Buchheit.
Among the issues to be decided by Siwek, however, will be whether the city’s Planning Board was the proper body to serve as lead agency in the environmental review for the Queen City Landing project.
And, if it was, whether its members did their duty as required under the State Environmental Quality Review Act to “identify” potential adverse environmental issues resulting from the project, “take a hard look” at them and make a “reasoned evaluation” on how to deal with them.
“To me, it’s all a question of ‘hard look,’ ” Siwek told both sides last week.
City attorneys say a 10-inch-thick record in the case proves the look was exhaustive.
Environmental groups disagree.
“They don’t do that,” said Richard Lippes, attorney for Buffalo Niagara Riverkeeper. “The regulations have been violated.”
Prior to the oral argument, Siwek granted standing in a separate case brought by four petitioners – Margaret Wooster, Jay Burney, Lynda Stephens and James Carr – over the objections of the developer and city attorneys.
Those petitioners alleged staff from the mayor’s Office of Strategic Planning actually wrote the environmental evaluation, determined the project would have “no substantial impact” and then had it “rubber-stamped” by the Planning Board, which is the lead agency on the project.
Their case and Riverkeeper’s were merged into one.
“They’re allowed to enlist help, but ‘help’ is not doing the work,” said petitioners’ attorney Art Giacalone, describing what he said should be the Planning Board’s role.
Giacalone compared what happened here with assisting his 89-year-old mother in grocery shopping: Not only did the Office of Strategic Planning figuratively push her around in her wheelchair, it also made the decisions for her on what to buy.
That would be improper under the law because the lead agency is required complete its own analysis.
“It’s supposed to be their mental process, and that’s not what happened,” Giacalone said. “They approved it without even having any intimate knowledge of what was there.”
City lawyers argued that planning staff officials, in their regular course of business, prepare such documents for Planning Board review. And they said Planning Board members thoroughly vetted them before voting 5-1 to approve Queen City Landing’s site plan in late May.
“The Planning Board did not abrogate their duties just because their staff did what they always do,” said Jessica Lazarin, the city’s deputy corporation counsel.
Added Mark Romanowski, the developer’s attorney: “Ultimately, the Planning Board took that (environmental analysis) and had a discussion about it and came to the conclusion they did.”
Romanowski said Giacalone and the petitioners invented “a conspiracy theory” because they don’t like the height of the building.
In June, the Common Council approved the project by a 6-3 vote.
Because of the scope of the Queen City Landing proposal, there’s a presumption it will have an impact on the environment. That means it is up to the lead agency to address why impacts are not significant enough to require a more detailed and time-consuming environmental impact statement.
If Siwek finds the Planning Board was the proper lead agency and it lawfully executed its procedural duties, she could also could make other determinations, including:
• Whether the city’s failure to consider how the project could affect threatened species like lake sturgeon and other aquatic habitat abutting the property renders its environmental assessment invalid; and
• Whether at least one substantial adverse environmental impact exists that should trigger a more detailed environmental impact statement.
Lippes argued Friday that both are true. He called Queen City Landing “a good project in the wrong place.”
“It’s uncontested that right next to the site, abutting the project, is an endangered species habitat,” Lippes said of the lake sturgeon. “They didn’t identify any impact to aquatic resources.”
Giacalone also pointed out there was insufficient consideration as to how flight paths for migratory birds in an internationally recognized zone for avian life would be affected, or how dangers to them from a 23-story building would be reduced, as well as issues of aesthetics, traffic and others, any of which should require a full environmental impact statement.
Developers contend not only that the issues were adequately addressed to the satisfaction of city officials and the requirements of state law, but reiterated their belief that the work is helping the environment.
“Anybody who’s spent any time there knows it’s not a pristine area,” Romanowski said. “This project has an improvement on the environment.”
As for why it didn’t address aquatic life at its waterfront property?
“We’re not doing anything that impacts the waters,” Romanowski said.