This article originally appeared in Artvoice on December 20th, 2012.
Arguments in federal court this week on Peace Bridge matters explored a thicket of technical legal questions, including whether the bi-national entity Public Bridge Authority must comply with State Environmental Quality Review Act regulations.
Which got into the further question—apart from whether the PBA must comply—whether it did voluntarily comply with SEQRA by producing a segmented environmental assessment on the proposed demolition of eight houses on Busti Avenue.
Which got into the further question of whether what was billed as an informational meeting on an infeasible alternative to wholesale demolition constituted a public hearing in fulfillment of SEQRA’s public comment requirements.
The court session was on a petition by the preservationist Campaign for Greater Buffalo History, Architecture & Culture for a restraining order preventing the proposed demolitions. Specifically, on the procedural question of whether the campaign has standing—sufficient interest on legal grounds—in the demolitions matter for the court to consider its petition. Prior to consideration of substantive issues, if the court grants standing. Judge Jeremiah J. McCarthy struggled mightily to keep the focus on the procedural question, but substantive issues kept creeping in.
Another main question considered—substantive but seeming related to the procedural question—was whether the houses proposed for demolition, several of which have declared historical value but which are dilapidated, are dilapidated beyond repair and need to be demolished on that account. In a previous court session, Judge McCarthy gave the campaign permission to enter and inspect the houses, which they did, and determined the buildings are “structurally sound” and “no threat to the public,” according to Richard G. Berger, one of the attorneys for the campaign.
On the multi-layered SEQRA question, Judge McCarthy, addressing Berger, said, “They [the PBA] say they’re not obligated to comply with SEQRA, but they say they did comply.”
Berger doubted their compliance with respect to SEQRA’s provisions for public comment.
“They held a public meeting,” Judge McCarthy said. In April, in the Niagara Branch Public Library on Porter Avenue. “Tim Tielman or others didn’t speak out.” Tim Tielman is the executive director of the campaign.
Tielman, who was present at the court session, said afterwards that he did not consider the April meeting a “public hearing” and was unaware it was being offered as such, but simply as an informational meeting on a PBA offer to anyone interested to take and remove any of the seven structures—at that time the PBA only owned seven—proposed for demolition, free of charge, but all costs to be borne by the remover. There were no takers on the offer.
The PBA announcement for the April meeting read:
The PBA will hold a public information session regarding plans to demolish seven PBA-owned homes on Busti Avenue between Vermont Avenue and Rhode Island Street in the City of Buffalo. At this session, details will be available on the authority’s commitment to providing interested groups or individuals with an opportunity to acquire and relocate these houses, free of charge, subject to paying all removal costs.
Others who attended the April meeting—Liz Martina, Al Coppola—said they too were unaware it was anything more than an informational meeting on the removal offer. Tielman said that although he made no public statement at the April meeting, he did tell PBA general manager Ron Rienas at the time that it was a farce and insincere.
Adam S. Walters, an attorney for the PBA, gave a succinct summary of the many and diverse provisions and considerations in state and federal law on the matter of standing: “Loving something is not enough to confer standing.”
Richard J. Lippes, an attorney for the campaign, addressed at some length the problematic matter of the segmented environmental assessment on the proposed demolitions, that is, without considering the widely discussed but not officially announced or adopted plan to expand the bridge plaza into the area in question. The segmented assessment could talk about the demolition proposal as creating a greenspace buffer zone between the plaza and neighborhood residential properties. The plaza expansion plan would be to build a new and bigger Duty Free store, with expanded parking area, in the demolitions/greenspace area and area immediately to the north, formerly owned by the Episcopal Church Home. The SEQRA ramifications would surely be considerable.
Reverting at the end of the day to the question of whether the houses should be demolished based on their current deteriorated state, Lippes said, “that’s an argument everybody makes” in historic preservation cases. “I’ve heard it over and over.” He said it was made in the original historic preservation case, which was regarding Mount Vernon.
Judge McCarthy had a sheaf of papers maybe a foot thick comprising written arguments from both sides on standing and substantive matters. He said he had read through them once and would read them again before handing down any decision. He said he would probably spend Christmas morning re-reading the arguments.