For the second time in just over a year, State Supreme Court Justice Mark A. Montour has told Buffalo’s Common Council that it acted contrary to law, and in an arbitrary and capricious manner, when it voted to create a special economic zone – the “Linwood Lafayette Urban Development Action Area” – at the former Millard Fillmore Hospital’s Gates Circle site.
The goal of Buffalo’s legislative body is to provide enhanced tax abatements and financial assistance to TM Montante Development LLC, so the Tonawanda company can proceed with its long-stalled plans to develop the former hospital site. But the judge twice has made it clear, in November 2019 and on Dec. 17, 2020, that the obscure state law the City Hall officials are attempting to use has a narrow purpose: to provide an extra incentive to private developers to correct or prevent blight and deterioration of city-owned property that is “appropriate for urban development.” It is not meant as a handout to a private developer in over its head.
The News’ editorial board called Montour’s 2019 decision “a victory for common sense.” To designate the Gates Circle site an “Urban Development Action Area,” the Common Council had to declare that the Gates Circle location is at significant risk of deterioration and blight and will continue to be substandard, unsanitary, deteriorated or deteriorating without the UDAA.
Montour exercised judicial restraint when characterizing as “curious” the legislators’ branding of this prominent area a slum. This newspaper’s editorial was equally understated when suggesting that “it takes a vivid imagination to see devastation in that corner of the city,” which sits in the midst of such a vibrant and affluent neighborhood.
Equally “creative” were the gymnastics used by Buffalo’s elected officials to meet the state law’s requirement that 60% of the land included within the special district be deteriorated city-owned property appropriate for redevelopment. To reach the 60% threshold, the legislators placed portions of Delaware and Lafayette avenues and Gates Circle itself in the UDAA, treating the public rights of way as land that could be appropriately redeveloped for non-public use.
The city and developer have now had two opportunities to convince the court that the LLUDAA is legal. They have failed. Before making its decision to appeal the recent ruling (and, it is their decision, not the mayor’s or department of law’s), the Common Council must objectively reassess the legality – and common sense – of pursuing the UDAA designation.
Admittedly, there are two potential barriers to the Common Council taking the sensible path. The default mode for human beings is to avoid admitting when a mistake has been made. It may also be difficult to receive an objective assessment from the city’s law department. The city’s lawyers serve at the pleasure of a mayor who wants TM Montante to receive the enhanced assistance.
Nonetheless, the integrity of our legislative body is at stake.
Arthur J. Giacalone is the attorney who represented the resident who challenged the LLUDAA designation, Daniel R. Sack.