-against- Erie Co. Index No /2016. Respondents-Respondents. ARTHUR J. GIACALONE, an attorney duly admitted to practice in the State of New

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1 SUPREME COURT STATE OF NEW YORK APPELLATE DIVISION: FOURTH DEPARTMENT In the Matter of the Application of MARGARET WOOSTER, CLAYTON S. JAY BURNEY, JR., LYNDA K. STEPHENS, and JAMES E. CARR, Petitioners-Appellants, For a Judgment pursuant to CPLR Art. 78 & Sect against- SUPPORTING AFFIRMATION WOOSTER PROCEEDING Erie Co. Index No. I QUEEN CITY LANDING LLC, CITY OF BUFFALO PLANNING BOARD, and CITY OF BUFFALO COMMON COUNCIL, Respondents-Respondents In the Matter of the Application of BUFFALO NIAGARA RIVERKEEPER, INC. Petitioner-Appellant For a Judgment pursuant to CPLR Art. 78 RIVERKEEPER PROCEEDING -against- Erie Co. Index No /2016 CITY OF BUFFALO, and QUEEN CITY LANDING, LLC, Respondents-Respondents. ARTHUR J. GIACALONE, an attorney duly admitted to practice in the State of New York, subscribes and affirms the following to be true under the penalty of perjury: 1. I am the attorney for Petitioners-Appellants Margaret Wooster, Clayton S. Jay Burney, Jr., Lynda K. Stephens and James E. Carr in the above-captioned Wooster Proceeding (referred to collectively as Wooster Petitioners ), and, as such, am fully familiar with the facts and circumstances herein and the prior proceedings before the Hon. Donna M. Siwek, Justice of the Supreme Court, in Supreme Court, County of Erie. The Petitioner-Appellant Buffalo 1

2 Niagara Riverkeeper, Inc., is the sole petitioner in the second proceeding in the above caption ( Riverkeeper Proceeding ), and was represented below and continues to be represented on appeal by Richard J. Lippes, Esq., of Counsel to Lippes & Lippes. Mr. Lippes joins me in bringing this application. 2. This affirmation is provided in support of an Order to Show Cause ( OSC ) with Temporary Restraining Order ( TRO ) brought by the Wooster Petitioners-Appellants and Petitioner-Appellant Riverkeeper, pursuant to CPLR 5518 and 6301, and 22 NYCRR (b) and (n), which seeks an Order from this honorable Court that consolidates the abovecaptioned appeals, and grants preliminary relief during the pendency of the consolidated appeal. 3. The appeals are both taken from an Order & Judgment (one document) which was granted by Justice Siwek on September 30, 2016, entered in the office of the Erie County Clerk October 11, 2016, and served by respondent Queen City Landing, LLC (hereinafter, at times, QCL ) on October 12, The Order & Judgment grants, in part, motions to dismiss made by respondent QCL, and respondents City of Buffalo Planning Board ( Planning Board ) and City of Buffalo Common Council ( Common Council ) [collectively referred to as City Respondents ], and dismisses and denies the CPLR Article 78 proceedings brought separately by the Wooster Petitioners and Riverkeeper. Regarding Necessary Papers 4. Pursuant to 22 NYCRR (a)(5), accompanying this affirmation as Exhibit A are the following necessary papers: (a) Pertaining to both the Wooster Proceeding and Riverkeeper Proceeding: the joint Order & Judgment (one document) granted by the Hon. Donna M. Siwek, JSC, September 30, 2

3 2016, entered in the office of the Erie County Clerk October 11, 2016, and served October 12, 2016; and, Justice Siwek s joint Memorandum Decision, dated September 14, (b) Pertaining to the Wooster Proceeding: a copy of the Notice of Appeal with proof of service and filing on October 31, (c) Pertaining to the Riverkeeper Proceeding: a copy of the Notice of Appeal with proof of electronic filing on October 26, An appellate docket number has not been assigned to either appeal, and there are no prior orders of this Court. Factual Background 5. The Wooster Proceeding and Riverkeeper Proceeding were brought to obtain judgment nullifying the approvals granted by respondents City Planning Board and Common Council in furtherance of respondent QCL s proposed Queen City Landing project, that is: (a) respondent Planning Board s May 31, 2016 issuance of a Determination of Significance/ Negative Declaration, pursuant to the State Environmental Quality Review Act [ SEQRA ], and approvals of the demolition site plan and construction site plan for the project; and, (b) the June 21, 2016 grant by respondent City of Buffalo Common Council of a restricted use permit for the Queen City Landing project. 6. The Queen City Landing project involves demolition of the six-story former Freezer Queen building located at 975 and 1005 Fuhrmann Blvd in the City of Buffalo s Outer Harbor, and construction on the shore of Lake Erie of a mixed-use, 370,000-square-foot development which includes a 23-story tower with approximately 199 upscale apartments, a nightclub and restaurants, and an adjacent three-story parking garage. [Attached hereto as Exhibit B is a rendering of the proposed project submitted by respondent QCL to the City Respondents.] 3

4 7. The subject parcel forms a peninsula, approximately 20 acres in area, extending in a west-southwesterly direction into Lake Erie on the City of Buffalo s Outer Harbor, and is adjacent to, or in close proximity of, three State-designated significant fish and wildlife habitats, that is, the Small Boat Harbor, the Tifft Nature Preserve, and Times Beach Nature Preserve. The subject parcel is also situated at the gateway to the Niagara River Corridor Globally Significant Important Bird Area. 8. Attached hereto as Exhibit C are two maps, each of which is a detail from a map depicting the Outer Harbor s natural resources and recreation and open space, respectively, which were prepared for inclusion in the City of Buffalo s proposed Local Waterfront Revitalization Program (LWRP). 9. The two attached maps show the location of the Subject Parcel in relation to the Small Boat Harbor, Tifft Nature Preserve, and Times Beach, as well as the nearby Bird Habitats, Common Tern and Peregrine Falcon Nesting Sites, and Fish Spawning areas. Regarding Consolidation of the two appeals 10. Although the Wooster Proceeding, commenced on June 28, 2016, and the Riverkeeper Proceeding, commenced June 30, 2016, were separately brought, they arise out of the same fact situation (that is, approval of the proposed Queen City Landing project by respondents City Planning Board and Common Council), seek the same ultimate relief (nullification of respondent City Planning Board s SEQRA Negative Declaration and site plan approvals, and respondent Common Council s approval of respondent QCL s restricted use permit for the 23-story tower project), and raise many of the same legal claims (for example, respondent City Planning Board s improper designation as SEQRA lead agency; violation of SEQRA s procedural and substantive requirements; and, respondent Common Council s 4

5 arbitrary and capricious issuance of the restrictive use permit for the Queen City Landing project). 11. As a result of the many similarities between the two Article 78 proceedings, respondent Queen City Landing, LLC s counsel proposed, and Justice Siwek and all involved parties agreed, that the Wooster Proceeding and Riverkeeper Proceeding should be joined for the purpose of motion practice, oral argument, and the Court s ultimate determination of the two proceedings. 12. As noted above, the Order & Judgment appealed from, and the Memorandum Decision issued by the IAS court, pertain to both the Wooster Proceeding and Riverkeeper Proceeding. Both documents utilize a double caption referencing the two proceedings. Additionally, the City Respondents prepared, served and filed a six-volume, 1,300-page Certified Record of Proceedings to use jointly in the Wooster Proceeding and Riverkeeper Proceeding. 13. In light of the above reasons, consolidation of the two proceedings is justified, would serve the interests of judicial economy, and would prevent the unnecessary expense of preparing and printing two sets of Records on Appeal with greatly overlapping content. Regarding Application for Preliminary Relief 14. Petitioner-Appellant Riverkeeper and the Wooster Petitioners-Appellants seek two forms of preliminary relief pursuant to CPLR 5518 and 6301, and 22 NYCRR (b): (a) a preliminary injunction that enjoins both the demolition of the former Freezer Queen building (which, upon information and belief, started on or about October 24, 2016), and construction of the proposed 23-story tower and related facilities during the pendency of the requested consolidated appeal; and 5

6 (b) a temporary restraining order enjoining continued demolition of the Freezer Queen structure from the time this Order to Show Cause is served until the time this application is determined by this Court. 15. Petitioners-Appellants meet the requirements for preliminary relief, that is, immediate and irreparable injury absent granting of the TRO, the likelihood of success on the merits, and a balancing of equities in their favor (as private attorney generals fighting to protect both the natural and man-made environment). A. Irreparable Injury/Acts tending to render judgment ineffectual. 16. The former Freezer Queen building is a concrete commercial refrigerated foods and manufacturing facility built along the Lake Erie shoreline at Buffalo s Outer Harbor in Importantly, it is a historic resource eligible for inclusion in both the National and State Register of Historic Places. 17. On June 17, 2016, the New York State Department of Parks, Recreation and Historic Preservation (PR&HP) issued a Resource Evaluation report which expressly concludes that the Freezer Queen building at 975 Fuhrmann Blvd. in Buffalo is eligible for listing in the State and National Registers of Historic Places under two separate criteria: (a) The Freezer Queen building is associated with events that have made a significant contribution to the broad patterns in our history, that is, its association with Buffalo s oncethriving shipping, warehousing and storage industry, as part of the industrial Outer Harbor, and as a significant contributor to the national industry of frozen foods. (b) The Freezer Queen building embodies the distinctive characteristics of a type, period or method of construction, that is, it is a locally significant example of early-twentieth century commercial architecture. (A copy of the State PR&HP report is attached as Exhibit D.) 6

7 18. Photographs attached hereto as Exhibit E which I took the afternoon of October 31, 2016 show that respondent QCL s agents have begun the demolition of the historic Freezer Queen building. As reflected in the photographs, demolition activities appear to be restricted to the western half of the north side of the massive structure, as well as the west side (facing Lake Erie) of the building. As of October 31, 2016, the walls and structural elements of the east side (facing Fuhrmann Blvd.) and south side of the Freezer Queen building appear to be intact. 19. In addition to showing the Court the progress that has been made since on or about October 24, 2016 in demolishing the former Freezer Queen facility, the accompanying photographs also reflect the historic structure s location along the City of Buffalo s Industrial Heritage Trail. 20. The appellate courts of this State have repeatedly recognized that, within the purview of CPLR article 63, an irreparable injury is one which may not be compensated by an award of money damages. See, Lawrence H. Morse, Inc. v. Anson, 185 AD2d 505 (AD3 1992); Fischer v. Deitsch, 168 AD2d 599 (AD2 1990). 21. Failure to preserve one of the few remaining pieces of Buffalo s industrial heritage, a building deemed eligible by the State Department of PR&HP as eligible for listing on the National register of Historic Places, during the pendency of this appeal, would create an immediate and irreparable loss to the Petitioners-Appellants, as well as the entire Buffalo area, that could not be compensated by either the award of money damages, or the construction of a replacement structure. Furthermore, it would tend to render ineffectual an important part of the judgment in the underlying proceedings, were this Court to reverse the IAS court s dismissal of the two CPLR Article 78 proceedings. 7

8 22. Additionally, were this Court to deny Petitioners-Appellants request for preliminary relief barring demolition of the Freezer Queen building, the post-demolition construction of the proposed Queen City Landing project during the pendency of the requested consolidated appeals would violate Petitioners-Appellants rights under SEQRA and the zoning and planning laws of the State of New York and City of Buffalo, and would tend to render the judgment ineffectual. Unless this Court issues a preliminary injunction to restrain construction during the pendency of the appeals, a massive development including a 23-story, 324-foot tall glass and metal tower will be constructed in the midst of significant fish and wildlife habitats, and at the gateway to a globally significant bird area, without the benefit of the comprehensive information, data and assessment provided by the heart of SEQRA, an Environmental Impact Statement. B. Likelihood of Success on the Merits 23. The majority of legal claims asserted in both the Wooster Proceeding and Riverkeeper Proceeding raise multiple violations of SEQRA s requirements by the City Respondents. Petitioners-Appellants contend that there is a strong likelihood that their SEQRA legal claims will succeed on appeal given this Court s long-standing adherence to the following principles: (a) Literal rather than substantial compliance with SEQRA is required. [See, e.g., Dawley v. Whitetail 414, LLC, 130 AD3d 1570 (4 th Dept. 2015) ( It is well settled that SEQRA s procedural mechanisms mandate strict compliance, and anything less will result in annulment of the lead agency s determination of significance. ); Taxpayers Opposed to Floodmart, Ltd. v. City of Hornell IDA, 212 AD2d 958 (4th Dept. 1995) ( literal rather than substantial compliance with SEQRA is required ).] 8

9 (b) A lead agency must take a hard look at areas of potential environmental concerns. [See, e.g., Mtr. Of Wellsville Citizens for Responsible Dev., Inc. v. Wal-Mart Stores, Inc., AD3d, 2016 N.Y. App. Div. LEXIS 4693; 2016 NY Slip Op (4 th Dept. 06/17/2016) (a town board s failure to take a hard look at a proposed project s impact on birds at a nearby habitat, and community character, rendered its negative declaration arbitrary and capricious); H.O.M.E.S. v. NYS Urban Development Corp., 69 AD2d 222, 418 NYS2d 827, 831 (4 th Dept. 1979).] (c) There is a relatively low threshold for requiring an Environmental Impact Statement (EIS) for Type I actions, and one should be prepared when there is a potentially significant adverse effect on any one aspect of the environment. [See, e.g., Miller v. City of Lockport, 210 AD2d 955 (AD4 1994) (negative declaration annulled where the relatively low threshold for preparing an EIS on a Type I action is not met ).] 23. A glaring example of respondent City Planning Board s failure to strictly comply with the procedural requirements of SEQRA is its reliance on members of the City s planning office staff to complete Part 2 of the State DEC s Full Environmental Assessment Form (FEAF) and prepare the 13-page Determination of Significance/Negative Declaration ( Negative Declaration ). 24. Both this Court and the New York Court of Appeals have long-held that a lead agency may not insulate itself from a meaningful consideration of environmental concerns by delegating its authority and responsibilities under SEQRA. [See, e.g., Coca-Cola Bottling Co. of New York, 72 NY2d 674, (1988) (a governmental entity responsible for deciding to proceed with a project impermissibly delegates its SEQRA responsibilities when it insulates itself from consideration of environmental factors); Penfield Panorama Area Community, Inc. v. 9

10 Town of Penfield Planning Board, 253 AD2d 342, 350) ("A lead agency under SEQRA may not delegate its responsibilities to another agency.").] 25. In reaching its determination to dismiss the Wooster Proceeding and Riverkeeper Proceeding, the IAS Court s Memorandum Decision concludes its analysis concerning respondent Planning Board s Reliance on City Departments with the following statement: Ultimately, we find that the record supports that the Planning Board reached its own conclusions and exercised its own judgment in rendering their decision with respect to the Negative Declaration. [Memorandum Decision, p. 17] 26. Petitioners-appellants respectfully contend that this Court should reverse the lower court s decision below in light of the following: (a) Part 2 of the FEAF, consisting of ten pages and 18 sets of questions, is the tool that was created by the DEC to ensure that a lead agency does not insulate itself from direct consideration of potential adverse environmental impacts, and considers environmental ramifications of a proposed action to the fullest extent possible. To meet SEQRA s procedural requirements, the first sentence of FEAF, Part 2, states unequivocally and in bold print: Part 2 is to be completed by the lead agency. The importance of this procedural requirement is underscored by the language used in the SEQR Handbook when explaining the function of the FEAF in the environmental review process: A full EAF consists of three parts: - Part 2 of the full EAF helps to identify the major categories of impacts and identifies the magnitude of each impact. The lead agency must complete its own analysis and is responsible for all decisions made during preparation of Part 2 [Emphasis added.] (b) No mention is made in the IAS court s Memorandum Decision to the procedural mandates that Part 2 of the FEAF is to be completed by the lead agency, and must reflect the lead 10

11 agency s analysis. (c) The affidavit submitted by the Director of Environmental Affairs for the City of Buffalo, Jason Paananen, unequivocally establishes that the involvement of the City s planning staff extended well beyond mere assistance or sharing of expertise. To the contrary, the FEAF, Part 2, was reviewed, answered, and completed by the City s planning staff, not the lead agency, the members of respondent City Planning Board. (d) The Paananen affidavit also shows that the City s planning staff, and not respondent Planning Board, made the decision that the proposed 23-story tower project would not be adversely impact the environment the most critical of all SEQRA-related determinations and proceeded to prepare the 13-page Negative Declaration to present to the Planning Board during its May 31, 2016 meeting where the Negative Declaration and project site plans were approved. (e) A review of the Planning Board s May 31, 2016 meeting transcript shows that the Planning Board members neither went through and answered the ten pages of questions in Part 2 of the FEAF, nor discussed the specific findings and conclusions in the thirteen-page Negative Declaration. (f) Respondent Planning Board did not change one response in FEAF, Part 2, or one word in the Negative Declaration, despite the fact that neither lengthy documents was prepared by or at the direction of the Planning Board. 27. As a result of the foregoing, Petitioners-Appellants respectfully contend that they have demonstrated a likelihood of success on the merits. Moreover, there were additional violations of SEQRA that were overlooked or misapprehended by the IAS Court that Petitioners-Appellants contend should lead to the reversal of the lower court s ruling, including, without limitation, the following: 11

12 (a) Respondent Planning Board refused to acknowledge the potential significant adverse impacts to the Outer Harbor s aesthetic resources and existing community character posed by a stand-alone, 23-story, 324-foot tower, despite the lead agency s repeated acknowledgments that it is certainly different and distinct from anything else on the water s edge, and constitutes a stark contrast to the existing manmade and natural resources nearby. In doing so, respondent Planning Board failed to take the requisite hard look at relevant areas of environmental concern, despite the proposed Type I action s undeniable contrast with the numerous public paths, parks, beaches, marinas, and nature preserves within its sizeable viewshed. While it is true that a lead agency possesses considerable discretion in deciding which areas of potential environmental concern may have a significant impact, it does not have the authority to disregard an obvious problem. In the words of this honorable Court, Like the proverbial ostrich, respondents have incredibly put out of sight and mind a clear environmental problem. H.O.M.E.S. v. NYS Urban Development Corp., 69 AD2d 222, 418 NYS2d 827, 831 (4 th Dept. 1979). (b) Despite the proximity of the subject parcel to three State-designated significant fish and wildlife habitats, respondent City Planning Board failed to take the requisite hard look at this area of environmental concern. Rather, it chose to rely on a flawed two-and-a-half page analysis submitted by the project sponsor s ecologist concerning the issue of migratory birds. The analysis by respondent QCL s consultant does little more than list best practices measures QCL was willing to incorporate into its development. Furthermore, respondent Planning Board fell short of taking a hard look when it failed to request any information or analysis from the project sponsor to address the following topics relevant to assessing the potential adverse impacts of a 23-story, 324-foot-tall glass and metal tower on the migratory bird 12

13 populations that traverse the Buffalo waterfront: (i) The flight paths and quantity of migrating birds in the vicinity of the subject parcel. (ii) The seasonal patterns of the migrations, and the extent to which the bird populations are moving during the day or at night. (iii) The extent, if any, the existing six-story, unlit Freezer Queen building has been an obstruction to migrating birds. (iv) A comparison between deaths, if any, occurring at the existing Freezer Queens facility and the likely change in numbers if the proposed 324-foot tower were built, as well as an estimate of how many migrating birds would be killed by the proposed tower, with and without the proposed mitigation measures. (v) The best practices respondent QCL was unwilling to incorporate into its 23-story tower, and the reasons such mitigation measures were not being used. 28. Petitioners-Appellants contend that respondent Planning Board could not have rationally determined that respondent QCL s stand-alone, 23-story tower on the shores of Lake Erie would not have an adverse impact on migratory birds without determining how many birds might be killed or otherwise disturbed by the proposed project. Furthermore, by failing to issue a Positive Declaration and require respondent Queen City Landing to prepare a draft EIS addressing the proposed action s probable adverse impacts on migratory birds and wildlife, respondent Planning Board has violated the aforementioned principle that the requirement to issue a Positive Declaration and require preparation of a draft EIS is triggered by "a relatively low threshold", that is, a draft EIS is needed if the action may have a significant effect on any one or more aspects of the environment. See Chemical Specialties, supra; Miller, supra. 13

14 C. Balancing of equities. 29. For the following reasons, the potential harm to Petitioners-Appellants, the Buffalo community, and the environment clearly exceed any potential harm to respondents of granting the temporary restraining order and preliminary injunction: (a) Demolition of the former Freezer Queen facility constitutes an irreversible injury to a historically significant structure, and will tend to render judgment herein ineffectual as it relates to a significant element of the environment resources of historic significance protected by SEQRA. (b) Pursuant to Section 617.3(a) of the SEQRA regulation, "A project sponsor may not commence any physical alteration related to an action until the provisions of SEQR have been complied with." [6 NYCRR 617.3(a)] The SEQRA regulations, at 6 NYCRR 617.2(ab), define "physical alteration" to include, but not be limited to, vegetation removal, demolition, stockpiling materials, grading and other forms of earthwork, excavation or trenching, and construction of buildings, structures or facilities. The purpose and intent of SEQRA will be jeopardized and minimized beyond effectiveness if respondent QCL s proposed Type I action is allowed to proceed despite the absence of full compliance by the City Respondents with the procedural and substantive mandates of this State-mandated law. 30. While respondent QCL will almost certainly allege that it will incur huge financial losses if the requested preliminary relief is granted by this Court, Petitioners-Appellants urge this Court to approach such claims with skepticism, and to explore whether potential delays in construction of the proposed development would be the result of granting preliminary relief, or of uncertainties regarding the costs and feasibility of the project. 14

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16 EXHIBIT A - ORDER & JUDGMENT BEING APPEALED - MEMORANDUM DECISION - WOOSTER PETITIONERS NOTICE OF APPEAL, PROOF OF FILING/SERVICE - RIVERKEEPERS NOTICE OF APPEAL, RECEIVED NYSCEF: 10/26/

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25 EXHIBIT B - RESPONDENT QUEEN CITY LANDING, LLC S RENDERING OF THE PROPOSED 23-STORY TOWER PROJECT 25

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27 EXHIBIT C - DETAIL FROM LWRP NATURAL RESOURCES AND RECREATION AND OPEN SPACE MAPS 27

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30 EXHIBIT D - NYS DEPARTMENT OF PARK, RECREATON & HISTORIC PRESERVATION S JUNE 17, 2016 RESOURCE EVALUATION REPORT 30

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33 EXHIBIT E - PHOTOGRAPHS TAKEN OCTOBER 31, 2016 BY THE WOOSTER PETITIONERS ATTORNEY SHOWING STATUS OF DEMOLITION ACTIVITIES AT THE FORMER FREEZER QUEEN SITE 33

34 NORTH SIDE OF FORMER FREEZER QUEEN BUILDING FROM INDUSTRIAL HERITAGE TRAIL

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36 EAST AND SOUTH SIDES OF FORMER FREEZER QUEEN BUILDING FROM PUBLIC BIKE/PEDESTRIAN PATH