INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

OF NEW

STATE
SUPREME

In the

The

Matter

of

Hotel

d/b/a

The

at the

@ the
Pan

of

American

and
Grill

PETITION/COMPLAINT

Inc.

Lafayette,

Lafayette,

Washington

OF ERIE

Application

the

Room

Tap

also

and

Index

Brewery

Street

NY

Buffalo,

COUNTY

COURT:

d/b/a

391

YORK

14203
Honorable

Kathleen

Ambrose,
Member

Managing
391

NY

Classic

Events

329

Washington

NY

Buffalo,

ABL

Leasing,

391

Washington

NY

Buffalo,

The

Buffalo

391

Washington

H@
391

14203

@ the

Lafayette,

LLC

Lafayette

de

Street
14201

LLC
Street
14203

Leasing,

LLC

Street
14203

Washington

Street

800

NEW

BUFFALO,

Signature
391

LLC

LLC

LOFTS,

Suite

Service

Lafayette

NY

Buffalo,

Groom

as

Street

Buffalo,

Marquis

and

of

Washington

d/b/a

Individually

Development

Washington

Buffalo,

YORK,

NY

14203

Buffalo,

LLC

Street
14203

1 of 50

No.

2019/

 FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

Fibich

Edward
d/b/a

Dark

391

Washington

Horse

NY

Buffalo

Hair

Studio

Street
14203

Petitioners,

For

a Judgment

Civil

Practice

Mayor

City

of

901

City

Hall

Buffalo

68 Niagara

Niagara

Planning

Board

St.

NY

68

NY

14202

of

City

Buffalo

St,

City

The

of

Buffalo

The

Buffalo,

as

14202

NY

Buffalo,

14202

of

Buffalo

Zoning

Board

of

Appeals

St.

NY

I4202

Market

Gowanda

Hamburg,

Claims

St.

68 Niagara

6936

City

NY

Buffalo,

Braymiller

the

Hall

68 Niagara

Buffalo,

and

Rules,

capacity

of the
City

The

and

78 of

Brown

official

In his

201

Laws

Byron

Mayor

to Article

Pursuant

-

- Against

INDEX NO. 807404/2019

NY

State

Inc.

a/k/a

Road

Bray
(Route

Miller

Markets

62)

14075

2 of 50

 FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

Ciminelli
50

RECEIVED NYSCEF: 06/17/2019

Corp.

Plaza

NY

201

Ellicott,LLC

350

Essjay

Williamsville,

Development

Realty

Fountain

Buffalo,

INDEX NO. 807404/2019

14203

Road
NY,

14221

Respondents.

3 of 50

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

TABLE

OF THE

OF CONTENTS

I.

THE

NATURE

II.

THE

PETITIONERS.................................................................................3

III.

THE

LAND

IV.

THE

RESPONDENTS...........................................................................

V.

THE

CITY

AT

VII.

TO TRANSFER

LAWFUL

OF THEIR

PETITIONERS

MUNICPAL

RESPONDENTS

THE

PLANNING

BOARD'S

Procedural

Deficiencies

in

B.

The

Procedural

Deficiencies

of the

and

the

VIll.

THE

IX.

CLAIMS

X.

RELIEF

Threatened

CONSTRUCTIVE

CITY'S

FOR

Assess

to the

PROPRTY

IN

the

ADVERSE

SIGNIFICANT

OF THE

REVIEW

The

Impacts

REAL

REFUSED

A.

to Identify

20

AUTHORITY.......................................22

POTENTIAL

IDENTIFIED

THE

Failure

1

ISSUE............................................................................16

IS THREATENING

EXCEEDANCE

VI.

ACTION................................................................

TO

RATIONALLY

PROJECT

Environmental

SEQRA
Potentially

UNDER
Review

Process

SEQRA

24

.........26

Process................26

Resulted

Sigmficant

IMPACTS

ASSESS.........

in a Substantive

Adverse

Environmental

Residents....................................................27

DENIAL

OF THE

RELIEF...........................................................................

REQUESTED............................................................................

4 of 50

FOIL

REQUESTS

.................

32

33

39

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

Petitioners,

Esq.

Stanton,

allege

upon

information

1.

This

of

City

apartment

2.

a.

(the

the

complex

(The

a

in greater

the

threatened

transfer

507,

The

Charter

and

556)

of

approvals

of

Determination

mandates

referred

"SEQRA");

is

now

of

of

to

Article

as

the

Article

imminent

distribution

detail

below

of

item

Code

real

78

of

closure

come

herein,

NY

the

CPLR

transfer

and

warehouse,

were

State

the

the

Ellicott

Richard

forth

E.

and

The

challenging

of

a public

and

mini-market,

estate

all

which

State

Environmental

Petitioners

Street

§§ 27-2,

Planning

Significance

8 of

201

at §37

of

of

Second

Board,

Zoning

reliant

upon

failed

to

is

and

27-6,

violation

a threatened

Buffalo's

the

to

food

of

and

disposition

City

Petition

Verified

with

PLLC,

parking
a

202-unit

Project);

is set forth

concerning
b.

of

As

(City

pursuant

threatened

City's)

their

Shatkin,

ACTION

brought

construction

authority

j,

action

for

and

as follows:

OF THE

an

Buffalo's

for

facility

is

belief

Muscato

attorney,

as and

Counsel,

and

NATURE

their

through

of

appearing

THE

I.

and

by

allege:

an

the

Environmental

Quality

and

1

5 of 50

of

with

Conservation

Act

forth

on

72-

§§

the

and

City

Common
SEQRA

which

substantive

Law

lawful

Law

(ZBA),

process

the

City's

and

Law;

Appeals

approval

Review

set

Cities

the

Municipal

restrictions

Class

comply

of

General

27-13,

Board

an

exceedance

("ECL"),

(hereinafter

and

procedural

commonly
referred

to

as

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

3.

This

the

May
4.

14th,

with

Petitioners

This

Petition

secured

of

Information

Municipal

the

to

6 of

Article

Law

the

law

by

be

set

the

demands

Public

Officer's

served

the

State

of

upon

of

New
based

the

Law

on

City

City's

the

process

denied

Planning

Board,

perform

actions

property

at

upon:

Buffalo

failure

Appeal)

removal

York.

of

City

to

and

7803(1));

in

that

procurement

of

Buffalo,

threatened

act

below

§7803(1-4)

(CPLR

an

forth

noticed

Board

Zoning

would

disposition

exceedance

of

of

their

real

lawful

201

(CPLR

authority

and

Board's

also

threatened

abuse

of

discretion

ZBA's

substantial

of

in

upon

lawful

of

determinations

evidence

lawful

(CPLR

discretion

(CPLR

by

7803(3));

made

of

ZBA

and

the

made

City

of

Mayor

and

was

arbitrary

procedure,

(CPLR

violation

determinations

the

by

determinations

made

an abuse

upon

to be relied

violation

ZBA's

represented

relied

in

the

of

laws

Respondent's

made

was

the

(City

them

Street

SEQRA,

the

publicly

Respondents

upon

Planning

and

a

to CPLR

Buffalo

7803(2));

the

reasons

pursuant

Municipal

Ellicott

the

through

of

City

for

to under

is brought

enjoined

e.

pursuant

allege,

protection

and

d.

compel,

Freedom

further

terms

equal

c.

to

2019.

Petitioners

b.

seeks

compliance

mandatory

a.

further

action

City's

The

of

5.

RECEIVED NYSCEF: 06/17/2019

as Lead

Common

Buffalo

the

Council,

was

Departments,

City
and

under

Agency

and

capricious,

an

and

concerning

procedure,

the

was

issuance

of

arbitrary

and

an

area

variance

capricious,

and

7803(3));

are

arbitrary

7803(4));

2

6 of 50

and

and

capricious

not

being

supported

by

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

f.

Common

The

Ellicott

Street

Petition

This

the

directing
Commission

to fully

7.

This

injunctive

and

City,

further

its

Boards,

relief

necessary

This

Petition

to

in

Petitioners'

disposition

lawful

in

of

at

property
was

request

the

but

(See

support

of

until

the

201

and

arbitrary

7803(3));

requests

quo

of

procedure,

(CPLR

including

status

the

of

support

FOIL

submitted

preserve

the

discretion

agencies

and

further

is

of

of

violation

submitted

with

Petition

in

an abuse

is

comply

approval

made

was

and

capricious,

6.

Council's

not

for

limited

Exhibit

this

to

the

Planning

A).

application

the

relief

mandamus

matter

may

for

preliminary

come

to

be

fairly

adjudicated.

8.

permanent

thence

sensitive

and

of

Environmental

II.

THE

there

City's

such

of

of

costs

the

support

Petitioners'

the

review

significant

a weighing
all

Project,

of

environmental

potential

the

and

environment,

in

as a proper

time

study

Conservation

business

The

are

Petitioners

property

combined

submitted

of

the

as required

adverse

same

pursuant

for

is coordinated

and

impacts

is made

to

application

of the

against

Article

8 of

site

on

economic

New

York

Law.

PETITIONERS

The

10.

host

and

benefits

State's

improved

the

until

a thorough

after

areas

social

9.

relief

injunctive

completed

further

is

Washington

along

there

and/or

began

use

Petitioners

threat

of

and

Street,

residing
enjoyment

entities

and

individuals,

across

from

who

201

have

Ellicott

either

Street,

invested

and

thence

in,

and

moved

there.

of

their

:

3

7 of 50

property

interests

is now

threatened

by

the

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

unassessed

a.

construction

beepers

followed

activities,

from

noise

into

proposed

food

the

and

The

Mohawk

threat

disclosed

by

Project

13.

staff

ZBA

any

loss

of

the

and

whose

City's

more

enjoyment

issue

to

of

the

tasked

with

are

threatened

of

noise

have

trucks

as they

access

the

of

years

and

would

compressor

with

warning

truck

bay

at the

hundred

reasonable

a Negative

or the

if

out

space

parking.

(The

garage

to

threatening

become

not

the

issued

appear

Council

of

variances

who

in

have

been

Declaration

Negative

Common

granting

to

voted

support

on

the

of

the

neighborhood.

uncontrolled

spaces

parking

Declaration

does

Ramp
who

determining

quiet

ar

with

from

condition.'

Board

with

629

area

spaces

parking
use

another

Mohawk

process,

370

residential

immediate

the

on the

than

when

this

deteriorated

of

review

three

do

Planning

impacts

than

intensity

the

its

loss

adverse

Petitioners

high

to

upon

imminent

environmental

the

posed

The

the

or

sale,

Arterial

more

serving

based

the

City
the

tenninating

land

of

that

removing
with

threatening

Ramp)

unavailable,

The

it

replacing

is

City

Street

Oak

and

Ellicott,

plans

truck

two

warehouse;

b.

12.

site

from

impacts

perpetual

by

designed

a poorly

backing

noise

in

their

without

noise

they
homes

assessing

and

impacts,

and

their

land

and

businesses

potential

the

usage

immediate

rely

upon,

is threatened

impacts

of

by

nuisance

Street ramp also operates the Mohwk
has approximately
609 spaces
BCAR who operates the Ellicott
Ramp which
list of 708 vehicles. While
and a 708 car waiting list, for daytime parking..(
See Exhibit C), and a 4 ½ year waiting
for night time parking,
it would be available
the City and the Project Sponsors represented
they failed to disclose
and there is a
to BCAR to be in poor condition,
that it was recently found in an Engineering
Report submitted
determination
looking

that it will

at demolition

need approximately
$5,000,000
on the Mohawk
recommendations

over the next two years(See
Ramp.

See Exhibit

8 of 50

E.

Exhibit

D)., and BCAR

is

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

noise

threatened

sources

14.

which

For

the

individuals

very

the

laws,

A.

were

of

Petitioner

ABL

The

Buffalo

Buffalo

16.

Hotel

17.

the

18.

The

designed

firm

of

19.

In

Lafayette

From

20.

state

largely

of

are

Lafayette

which

and

St.

Lafayette

French

Bethune

2002

Bethune

it

was

Hotel

dilapidation

vacant,

and

is

92

of

of

the

style

through

the

dilapidated.

2010,

upper

at the

Petitioners

land

are

the

disposition

to benefit.

LLC

of

391

Lafayette

Hotel

the

floors

upper

Washington

St.,

Building.

of

the

Lafayette

spaces.

Lafayette

1902

Hotel

which

Building,

architect

by

E.

documented

by

of decline.

the

Lafayette

and

floors,

(id)

5

9 of 50

steel

seven-story

. See Exhibit

in a state

noise

stationary

is listed

on

Places.

Renaissance

and

intended

owners

of

the

municipal

Leasing,

the

living

Historic

Fuchs

one

owner

is the

residential

address

were

space

and

that

and

laws,

Lafayette

LLC,

LLC

submitted

action,

Buffalo

is a circa

was

on

The

mobile

process.

land-use

this

Building

published

2002

of

and

Project,

permitting

commercial

Leasing

and

building

at least

the

Register

Hotel

the

and

is the

the

other

subject

contains

State

and

Leasing,

out

ABL

Washington

in

the

the

it is respectfully

below,

LLC,

leases

of

during

laws,

which

petitioners

National

forth

Leasing,

Building
391

assessed

set

who

NY,

The

construction

environmental

application

15.

not

reasons

the

the

by

Louise

Blanchard

local

architectural

See Exhibit

F.

Hotel

many

structure

portions

and

of

concrete

building

Bethune,

historian

and

that

was

underutilized,

the

lower

floors

the

the

in a

were

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

In

21.

about

architectural

Places.

to bottom,

premises,

the

National

was

Since

monitored

the

in the

Since

2010

the

the

by

ownership

United

of

New

thence

States

of

State

the

the

to

National

property

was

thence

of

Interior

the

work

Office

of

Lafayette

completed

agents,

the

Secretary
of

their

added

the

listing

York

the

small

numerous

was

Completion

group

renovation

it

Register

Places.

Historic

2010

million

with

and

and

group,

ownership

the

After

of

standards

23.

current

in accordance

Restoration

$30

of

study

Historic

22.

the

2010,

Historic

Hotel

Register

of

restored,

top
for

Standards

in

done

an

accordance

the

with

Places.

has

building

expended

over

structure.

and

medium-size

businesses

have

also

invested

in

the

premises.

24.

The

guests

Commercial

are

deprived

a.

The

b.

Classic

c.

a CrossFit

d.

Made

e.

Signature

f.

Groom

g.

offices

Hotel

The

and

26.

Events

by

room

luxury

are

in

threat

relied

parking

upon

of

by

displacement

the

if

businesses

their

include:

d/b/a

Marquis

the

Lafayette

;

and

LLC,

and

LLC;

at

Dresses,

Wedding

Services

least

two

sessions,

and

investment

to

active

Lafayette

LLC

Lafayette,

Development

gross

businesses

or the

enjoyment,

at the

Anatomy

of

whose

Lafayette,

gym;

restorative

The

quiet

at the

counseling
25.

occupants

use

Hotel

boutique

mental

health

reasonable

restore

Building

hotel,

has

whose

parking

accommodations.

present

premises

to be about

$50

the

is estimated

counselors

in

a restaurant

excess

and
6

10 of 50

of

of

the

patients

Lafayette

require

Hotel

quiet

Building

million.

70

banquet

daily

facility

employees,

which

contains

holds

over

a 57-

600

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

annual

events

over

(including

100

92

weddings),

and

apartments,

numerous

small

businesses.

27.

As

is

on

the

by

Buffalo

28.

375

As

of

201

The

forth

Auto

28,

2042

persons

Ellicott

Street

is the

Mohawk

parking

on

of

behalf

average

wait

development

31.

The

wait

space

Common
The

the

businesses

Buffalo

at 201

is

dependent

severely

Ellicott

St.

and

operated

parking

facilities

list

waiting
facilities.(See

parking

facility
which

service

a 629-space

facility

the

2846

Exhibit

the

servicing

of

B)

Petitioners

Petitioners

on

spaces

properties.

are

property

the

Ramp.

is

or

persons

corridor.

a daytime

entities.

the

See Exhibit

a waitlist

Mohawk

critical

parking

for

ramp

shortage

parking

708

spaces

a 4 ½

reports

business

stifling

B.

reports

Ramp

The

with

a 236

vehicle

wait

list

and

claims

a 2 to 4 month

(id)

demolition

Structure

closest

documents

Adams

the

Exacerbating

BCAR

reported

downtown

ramp
547

of

of

city

nine

Adams

time

in the

257

time.

the

the

by

BCAR

parking

and

each

(BCAR).

at their

structured

below

owned

2019,

The

year

detail

Ramps

Ramp

submitted

33.

spaces

February

closest

greater

Mohawk
30.

32.

in

parking
Civic

of

behalf

29.

set

of

Board

the

on

(See

enjoyment

of

proposals

for

the

Lafayette

of

the

Hotel

redevelopment

not

or the

dire

and

in

the

201

724

the

public

spaces.

imminent

The

demolition

record

shortage

parking
required

structure,

is the

of

filed

threat

of

to

the

report

the

Mohawk

with

the

City

ZBA.

daytime

of

its

recommends

appear

Board,

Planning

awareness

the

does

existent

already

structure

which

2019,

D),

the

in

Mohawk

26,

Exhibit

shortage

parking

dilapidated

March

Council,

City,

daytime

Ellicott

7

11 of 50

in

their

that

threatening

publicly

any

noticed

prospective

the

use

and

request

for

bidder

on

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

the

redeveloping
for

spaces

34.

The

threat

their

of

owners

the

adverse

convenience

36.

The

of

the

Board,

the

market

Interior

contains

city

and

to

bidding

redevelopment

Common

to

who

of

challenge

their

that

it

would

plan

to service

the

and

use

The

require

were

entitled

the

201

12 of 50

detail

imminent

removal

of

which

below,

upon

based

consider

food

to

the

potential

it

in

failure

aesthetic

and

warehouse,

discord

structure

and

Lafayette

upon

Ellicott

of

with

the

their

after

the

as

Liberty

LLC

Leasing,

the

St.

representations

for

property
practice

City

developers

Building.

element

the

further

who

represented

a mandatory

their

of

and

property,

contains

group

Project

8

deal

bait-and-switch

enjoyment

Hotel

planned

to rely

faith

bad

membership

Lafayette

the

standing

Buffalo

at the

a parking

the

Affidavit).

The

redevelopment

upon

incongruous

and

the

based

preserve

review.

contiguous

parking

to

L

greater

to

an

Siegel

LLC,

tenants.

on

of

structure

See Exhibit

by

have

Council

Ben

(See

in

also

substantially

preservation

their

structure

impact

construction

developers

threatens

bidding

and

Leasing,

standing

displace

from

dissuaded

has

which

municipality
threatens

the

concerning

Building

Standards.

standing

addressed

Hotel

structures,

group

have

owned

impacts

the

by

Building.

Liberty

environmental

Lafayette

ABL

benefits,

public

the

noise

the

their

a parking

element,

Building

of

mandatory

Petitioners,

membership

Hotel

enjoyment

threatened

food

of

and

and

Building

Lafayette

Planning

impacts

Secretary

the

in the

of

ZBA,

Hotel

as threatened

assessed

The

of

use

as well

not

35.

of

as a mandatory

include,

Lafayette

owners

parking,

were

the

project

were

in

their

of

the

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

B.

Petitioner

37.

The

New

The

petitioner

York

State

renovation

38.

The

the

structure,

and

of

Room

The

Tap

domestic

391

at the

Room

and

the

being

Lafayette

at the

corporation

Washington

Room

Tap
first

Tap

St.

Hotel's

Hotel

Lafayette

that

since

has

at the

invested

and

and

$10

is

Hotel)

million

in

the

2010.

involved

Lafayette,

Room

Tap

approximately

approximately

investments

(The

Inc.,

the

the

creation

second

of two

the

being

businesses

in the

Pan-American

Grill

Brewery.

39.

spaces.

hotel

The

face

hotel

201

40.

of

forever

threatened

roof

noise

noises

by

41.

the

As

not

or

Review),

anticipated

space

fully

for

set

identified

create

sleeping,

by

an

and

the

and

over

ft.2

13,000

of

many

attached

in

the

EAF

intolerable

quiet

by

sound

would

the

of

event

guestrooms

of

the

(SEQR

enjoyment

of

over

a one

to

warehouse

and

pressures

limited

market

forced

and

period,

operations.

from

as they

trucks

environmental

two-year

generated

unimpeded

delivery

John

document

Board,

Planning

condition

the

The

compressors

impacted

to back

up

on

hotel

and

onto

Oak

board.

affidavit

the

in

be

by

planning

the

assessed

noise

generated

in

not

food

a)

which

pressures

assessed

rationally
to

includes

annually,

but

the

include:

warehouse

approved

forth

with

would

b) noise

plan

is

guests

hotel

construction

associated

and

and

site

boutique

anticipated,

include

noises

market

spaces,

overnight

pressures

would

Project,

the

1400

luxury

Street.

operating
of

apartment

were

Ellicott

the

a 57-room

over

hosts

operating

Street

is

Significant

review

the

Hotel

The

for

required

use

and

by

Affidavit).
9

13 of 50

P.E.

Schenne,

noise

which

commences

ZBA,

or

guests

the

Common
of

enjoyment

and

the

pressures

Environmental

Council

hotel

occupants.

which

and

(See

would

apartment

Schenne

be

a

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

42.

600

the

Pan-American

The

events

it holds

competitive

switch

in

their

land

noticed

Brewery

operations,

disclose

of

impact

assess

noise

seeker

their

and

44.

initial

Hotel

at both

displacement

the

and

Petitioner

45.

Classic

and

office,

survival

storage

2012

47.

They

submit

new

the

demand

Events

area

the

imposed

transit.

pregnant

City's

in

Spaces,

The

whole

to

events,

in

or

bait-and-

City's

the

Pan

the

to market

destination

from

away

impacts

The

also

their

have

historic

after

area,

American

it

was

Grill

omission

in

part,

exacerbates

in

standing

to challenge

structure

they've

representations

the

city's

its

business

operations.

the

Adams

Ramp

enjoyment

of

@ The

the

invested

its

and

failure

the

the

invested

failure

in

that

they

would

with

201

Ellicott

to

under

protect

Lafayette

the

re-use

current

their

that

201

lack

the

Ellicott

of

Hotel

for

capacity
and

and

Street,

Tap

for

the

daytime

Room

with

property.

of

10

14 of 50

banquet

rooms,

kitchen,

Building.

$450,000

375

three

operates

Hotel

approximately
the

of

St.

LLC

business

of

loss

threatens

Lafayette,

loss

arrangements

The

and

Ramp,

and

by

public

parking

adversely

on

on

and

threatened

luxury

nearby

project.

their

within

parking

market

upon

rely

Hotel

upon

is a catering

have

they

and

relied

of

use

LLC

Events,

Since

the

of

loss

to

upon

procedure.

rely

Ramp,

feasible

Mohawk

the

Mohawk

the

relies

displacement.

of the

the

facility

pulling

it,

impacts

Room

Classic

46.

to

bidding

Mohawk

the

C.

right

of

in

of

and

Tap

demolition

resulted

Room

Tap

and

to

necessary

the

the

that

bidding

impacts

as have

The

threatened

parking

traffic

in the

parking

loss

it

market,

with

bait-and-switch

of

find

include

threatens

imminent

owners

as well

parking

and

City'

The

York

would

Brewery

not

that

project

likely

the

43.

New

and

does

disposition,

the

the

and

annually

Western

publicly

to

Grill

spaces

their

into

at 201

property,

their

premises.

Ellicott

St,

and

other

compounded

projects

by
under

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

would

construction,

developed

48.

Since

banquets.

2012

They

have

valet

parking

events,

and

at 201

Ellicott

Classic

49.

corridor

loss

of

their

D.

50.

historic

space,

and

two

warehouse

and

and

of

201

Ellicott

to their

guests

market

the

in

parking
relies

spaces

all

virtually

upon

the

have

they

spaces

of

their

have

they

with

are

premises

being

by

applicable

urban

LLC

Lons,

AM&A's

law,

the

abandoned

previously

threatened

the

city's

and

without

with

east

side

displacement

proposed

and

disposition

of

the

considering

the

impacts

of

fabric..

from

201

located

just

south

of

for

conversion

seat

restaurants.

spent

owns

the

to

the

over

$10

it

as

located

third

Lofts.

room

300

utilizing

The

Warehouse

approximately
and

are

Street.

Ellicott

AM&A's

92-room

Lofts

Warehouse

across

re-purposing

now

on

LLC

Lofts,

H@

Lofts

investors

they

their

surrounding

The

initial

the

sited

100

H@

51.

the

H@

Street.

construction

of

enjoyment

petitioner

under

one

compliance

on

Petitioner

stores

provide

they

downtown,

and

actions

structures

AM&A's

was

without

Ellicott

utilized

regularly

to

ability

St..

Events

use

The

369

the

abutting

property

at

for

their

threatened

critically

hotel

million

a home

in

40,000

Lons

second

structure

square

a

a community

feet

former

of

of

located

the

is the

AM&A's

former

rebuilding
to

the

historic

The

with

Warehouse

quality,

three

fonner

stores

of

are

banquet

dilapidated

loft-style

apartments.

52.

at

the

operation

The

cost

of

use

$10

planned

and

enjoyment

million,

the

201

of

the

is threatened

Ellicott

H@
by

Lofts

the

property,

noise

St. site.
11

15 of 50

impacts

for

the

from

purpose

the

it was

construction

redeveloped

and

future

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

53.

The

threatened

environmental

use

on

impacts

enjoyment

and

human

the

of

the

threatened

property

environment

confer

the

by

standing

under

was

entitled

failure

seeker

to

to

assess

H@

Lofts

LLC.

It

54.

is

further

of

representations

and

of

has

to

standing

the

existence.

The

otherwise

have

city

that

concerning

the

the

challenge

and

Project,

public

the

submitted

failure

to

been

that

bidding

on

it

preservation

would

require

Lofts

of

the

a parking

at the

parking

loss

likely

H@

redevelopment

the

of

practice

other

disclose

of

LLC

LoRs

bait-and-switch

group

membership

H@

of

the

of

parking,

LLC

loss

201

the

to

Kathleen

Ambrose

Ellicott

St.

illusory

that

now

did

existent

not

the

property

bidding

threatens

their

who

could

developers

city

service

structure

upon

rely

municipality's

contains

if

property

to

represent

in

improvements

their

in

the

area.

D.

Petitioner

55.

Groom

Kathleen

Ambrose

56.

Groom

Hotel

her

own

and

the

57.

neighboring

dwelling

to

of

LLC

a New

is

a brick-and-mortar

their

she

parking

AM&A's
caused

ownership

York

State

limited

corporation

liability

she

relies

the

Ambrose,

Warehouse

by

the

backup

Groom

She

signals

available

her

has

business

of

which

12

16 of 50

daytime

with

Groom

on

has

inside

of

the

$500,000

to

member,

who

knows

her

clients,

parking

for

develop

displacement.

Service,

construction

bar

beauty

managing

experienced

already

mandated

and

approximately
LLC's

member

managing
Lofts.

upon

threatens

upon,

spent

Service

is dependent

salon

hair

has

group

customers.

submits

best,

the

The

service

Kathleen

space

is

LLC

Service,

business

loss

and

as a member.

Building.

premises

LLC

Service,

Service,

Lafayette

their

Groom

LLC

intolerable

vehicles

resides

noise

at the

in

the

in

her

AM&S

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

stores

RECEIVED NYSCEF: 06/17/2019

redevelopment.

penetrates

through

58.

to be

designated

201

59.

and

Petitioner

60.

Edward

He,

intolerable

Edward

patterns.

current

warehouse

foot

is

because

construction

is developed

Street

food

intolerable

warehouse

activities

under

in

arterial,

order

the

to

is

current

enter

permitted

being

it

the

by

the

J).

and

the

sleep

Oak

square

of

enjoyment

environmental

any

aspect

Fibitch

and

of

Kathleen

review

the

Dark

both

her

respondents'

municipal

the

like

Fibitch,

like

noise

warehouse

and

the

62.

block

- Exhibit

the

beepers

through

food

onto

14,000

by

in

active

back

use

approval

Kathleen

pressures

post-construction

of

Plan

disrupts

the

business

failure

to

assess

which

process,

and

property
loss

was

of

her

daytime

under

mandated

Project.

Horse

Hair

Studio

is an individual

Ambrose,

who

resides

in the

AM&A's

Lofts.

61.

virtue

to

from

experiences

if the

at the

impacts

to their

she

activity
trucks

Site

and

building

noise

is threatened

E.

Warehouse

the

beeper

noise

morning

Ambrose's

noise

prior

SEQRA,

of

delivery

Ellicott

residence,

parking

the

for

Kathleen

personal

walls

requires

ports

(See

early

a permanent

which

plan,

City.

the

nuisance

The

anticipated

site

The

site

Edward

away

201

plan

and

Fibitch

also

by

the

operates

the

construction

threatened

delivery
City's

Dark

which

a residence

by

noise

building,

approved

Ellicott

both

threatened

operational

market

has

Ambrose,

vehicles

Planning
Horse

Hair

St.

13

17 of 50

be

for

compressors

forced

Board

to

proposed

air

by

needs

to

the

protected

201

on

backup

from

Ellicott

the

onto

roofs

Oak

the

St.,

and

of

the

Street

by

.

Studio

at 403

Main

St.

which

is one

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

63.

Mr.

premises

he leases

64.

He

65.

the

His

reports

that

Main

at 403

Horse

greatest

is loss

threat

to

of daytime

his

business

for

parking
over

$75,000

approximately

Hair

the

and

his

use

enjoyment

of

the

building

up

his

customers.

past

three

years

Studio.

is in

business

the

St.,

invested

has

at Dark

business

by

Fibitch

the

of

category

small

local

businesses

with

threatened

displacement

project.

proposed

66.

His

67.

It

use

and

submitted

is

of

enjoyment

that

his

residence

Edward

is threatened

Fibitch

has

challenge

to

standing

pressures.

noise

by

the

City's

actions

at

issue.

Petitioner

F.

68.

an interest

Signature

in the

69.

Signature

requirements

requirement

includes

Project

contained

W.

line

available

if

in

to

it

the

Office

results

Downtown

of

a

in

store,

required

new

Strategic

their

market.

The

for

to

the

in

be

them.

The

on

the

the

bidding

protected

City's

share

Lofts.

bidding

city

would

the

by
solicitation

Downtown

A
or

for

14

18 of 50

a

mixed-use

(with

elersezit

office

proposed

a type

Qualifications

qualifications

seeking

develop

residential

ramp.

Request

is

Planning

capacity

a significant

for

spaces

Warehouse

from

by

members

language:

parking
jobs

dissuaded

Hotel

reserve

AM&A's

the

assurance

Lafayette

following
of

were

the

the

would

demonstrate

grocery
and

cen-fêMsiums),

the

Brown's

developers

a full

which

upon

whose

company
and

Building,

members

based

needs

parking

development

Hotel

Lafayette

St.

structure

is a local

LLCs

Ellicott

the

Byron

considered

the

a parking

of biddersonthe

interested

of

201

that

of

LLC

Development

of

LLC

Development,

Development

ownership

redevelopment

"Mayor

Signature

of

office

(RFQ)

from

project

that

a possibility

for

use

will

space

not

process

only

be

currently
will

result

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

in

the

RECEIVED NYSCEF: 06/17/2019

City

Street.

story,

a developer

designating

This

RFQ

a developer

seeks

that

can

mixed-use

multi-building,

potentially

Developer"

("Designated

incorporate

project

component

a grocery

While

communications

requirements

71.

LLC

Based

is an entity

requirements

Class

Charter

of

Cities

and

for

Law

Code

the

City

with

the

what

§37,

27-6,

now

counsel

Project

approved

it is respectfully
to challenge

standing

General

§ 27-2,

the

foregoing

municipalities

Petitioners'

the

Ellicott

a multi-

into

FOIL

does

Exhibit

demands

not

I, p.2.

requesting

match

the

mandatory

noticed.

publicly

the

has

ignored

developer

was

upon

who

has

201

....

See

70.

for

or "Developer")

concerning
Municipal

and

the

submitted

city's

governing
Law

failure

disposition

§§ 72-j,

27-13).

15

19 of 50

507,

556

that

Signature

to comply
of

507,

real

and

Development,

with

the

(See

property

City

bidding

of

Buffalo

Second

all

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

III.

THE

72.

201

of

City

LAND
Ellicott

Buffalo

ISSUE

St.,

the

land

It

Warehouse

is directly
all

Lofts,

at

issue

operated

currently

properties.

Petitioners

AM&A's

and

AT

as

across

of

which

is

a

2.5

approximately

fully

utilized

Washington

are

depicted

370

public

daytime

Street

on

from

the

of

acres

owned

land,

parking

lot

by

the

the

servicing

the

Lafayette

Google

Street

image

set

forth

land

believed

to

habe

Hotel,

and

the

below.

Street

View

been

The

acquired,

201

Facing

Street

Washington

73.

of

Site

contains

owned

and

approximately
held

to serve

the

public

parking

16

20 of 50

parking
needs.

spaces,

on

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

74.

require

In

addition

curb

cuts

to

and

Arterial,

and

on

surround

area

extracted

the

2.5

aprons

on

Washington

from

on

acres

City

A

Site

Plan

to

be

outside

property

Street.

the

site

depiction

of

is reproduced

the

physically

altered,

the

parcel

boundaries

the

proposed

Project

on

Project

will

the

Site

also

Oak

Street

Plan

and

its

below.

Opimwn
CAFNOPM5IGN

.

75.

The

competitive

available

the

Oak

Street

76.

working

approved

Site

procurement

for

Arterial

The

families,

food

and

at the

distribution

a 6,000

the

its

RFP

and

now

and

replace

square-foot

workers

approval

servicing

it with

with

food

of

four

appears

City

(Exhibit

intends

warehouse

Board

Planning
and

site

the

illustrates

of

structures,

properties

fresh

plan

requirement

neighboring

neighboring

square-foot

A0101

I ),

to

that

remove

a 202

abandoned

structured

all

unit

the

parking

requiring

Plan

irrationally

would

require

relied

parking

apartment

bays

the

complex,

vehicles

to

noticed

be

made

upon

by

a 14,000

back

onto

that

the

the

mart.

the

the

Site

space

17

21 of 50

assumed

zero

new

daytime

201

parking

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

and

spaces,

conditions

The

support

and

land

AM&A's

hotel,

40,000

seats.

The

immediate

79.

successful

fully

the

removed,

80.

submitting
a structured

81.

transferring
82.

structure,

area.

The

include

Corp.

authorization

was

new

parking

fact

that

the

existent

which

71

employees,

have

Lafayette

been

and

Hotel

restored

fully

approximately
and

Building,

the

selected

as the

third

designated

Project

to

which

required

of

the

Planning

built

100

for

would

the

to

the

ignored.

all

required

parking

Ciminelli

for

Realty

the

in its

plans..

consented

to

the

100

provide

competition

without

Board,

to

after

thence

Project,

were

process

structure

room

employees

Project

sometime

parking

a 340

approximately

continue

and

for

more

procurement

developer,

a rebidding

approved

approved

Building,

Liberty

the

each

already

facility

to ignore

requiring

2019

site,

Plan

cuts

the

Common

anytime

after

curb

cuts

for

coordination

for

trucks

of

to

Council

June

development

of

No
curb

the

plans

approximately

competitive

parking

Ciminelli

11,

to the

granted.

the

noticed

and

restaurants

add

for

has

site

was

Ciminelli

element

mandatory

of

garage.

granting

of

the

Stores)

two

would

publicly

proposed

June

Site

and

needs

parking

without

City,

The

are

AM&A's

(the

space,

Building

allowed

City

title

hotel,

luxury

structures

a structured

Hotel

On

the

of

two

premises,

one

completed,

City's

bidders

their

historic

businesses,

banquet

daytime

the

The

three

despite

assumption,

parking.

restored

once

While

the

daytime

structure

of

feet

third

Transportation

been

historic

square

Lafayette

that

Lofts.

third

Development

not

two

The

The

abuts

small

upon

for

wait

seven

Warehouse

78.

based

at issue

at least

apartments.

150

plans

a 4 ½ year

show

77.

to

approved

26,

dependent

trucks

to

back

the

back

upon

into

New
Oak

environmental

into

Mayor

to

execute

Deeds

2019.

is

the

authorized

a State

18

22 of 50

York

Street,

review

Arterial

has

State

and

of

been

Department

those

the

curb

cuts

in

have

and

Project,

found

of

the

limited

no

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

records

back

RECEIVED NYSCEF: 06/17/2019

made

into

out

the

from

upper

the

right

83.

set

and

is

set

no

forth

image

thus

site

the

in

foot

the

records

with

has

in

an

made

in

is on

are

available

site

never

for

the

below

the

delivery

back

out

site

also

the

to

city.

19

23 of 50

Benjamin

require

the

of

the

transfer

be

it is depicted

with

to

on

the

cut

a truck

in

the

Michael

the

Siegel

the

issuance

of

a special

not

of

an

sought.

area,

use

of

expected

are

plan.

of

been

trucks

is depicted

right,

would

Environmental

by

the

Affidavit

anticipated

National

the

renewal

trust

then

approved

urban

set forth

monies

the

the

which

held

federal

from

on

reasons

and

Street

warehouse

not

at which

accompanying

Council,

is

angle

Arterial,

Oak

cut

the

acute

Street

below.

parking

for

The

Oak

was

square

project

city.

the

forth

compliance

limited

the

Common

the

Although

85.

the

The

and

plan,

Project,

plan

a 14,000

The

abandoned,

from

Site

for

84.

renewal

from

As

use permit

by

premises

corner.

of

building

available

project

public

Policy

to

Act

never

has

required

allocated

is

of

part

been

competitive

the

housing

1970

has

urban

formally

bidding.

aspects

been

of

discerned,

the

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

86.

suffered

While

project

the

considered

88.

would

daytime

89.

structures

90.

of

Buffalo.

property

transferring

demolition

The

Project

what

site

they

by

low

low

need

most.

of the

some

to

have

have

assessed

not

nor

impact

have

modeled

with

publicly

disclosed

not

be

mini-mart.

businesses,

families

is an

persons

income

of

into

irrational

the

the

they

already
of

loss

zero

day
in

2ND

work

downtown

the

and

parking
in

formerly

International

departure

$50,000,000

the

from

residing

often

daytime

over

departed

determined

and

is required

moved

but

working

invested

thence

parking

and

adverse

will

which

properties,

they

of

modeling

Ramp.

component

which

no

warehouse

daytime

anticipated,

income

that

food

surrounding

Standards),

parking

is a critical

and

fabric,

developed

time

parking

new

Project.

from
3RD

the

Shias

by

previously

abandoned

largely

and

upon

relied

rebuilding

ITE

historic

Petitioners.

RESPONDENTS
Byron

Mayor

The

reality

businesses,

urban

201

the

activity

appears

(ITE

night-time

the

the

study

documents

of

hotel

the

Mohawk

the

demand

only

is onen

of

the

parking

loss

and

of

on

with

forward

and

operation

spots

the

stores

for

ignores

parking

Brown

petitioners

but

including
title

the

that

and

THE

IV.

AM&A's

the

nighttime

of

moved

has

properties,

parking

impacts

required

be

and

daytime

guidance

neighboring

abandoned

of

Site

residential

assessed

transportation

assumption

Standards,

loss

with

Engineers

spaces

the

former

The

Traffic

has

the

Project

activities,

city

cumulative

the

surrounding

the

the

planned

parking

the

and

at

property

the

of

construction

during

87.

The

on

pressures

noise

of

Development

The

or

control

seek

not

is named

to enjoin

limited

or ownership

to

in

solely
him

from

official

taking
of

execution

of the

his

Project
20

24 of 50

any
site

as the

capacity

any

deeds

out

in

action

of

or

the

Mayor

furtherance

instruments

City

of

Buffalo.

of

of

of

the

the

City

sale

indentured

of

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

91.

The

of

Buffalo

the

site,

be

the

this

The

and

site,

petitioners

93.

variances

from

may

of

Buffalo

City

thence

to have

The

City

criteria

the

of

94.

grant

Ciminelli

interest

property

forth

set

Appeals

null

of

in

area

in

the

void

permits

and

Board

of

Appeals

based

upon

determined

Corp.

and

for

Law

the

site

his

and

agents,

construction

null

the

City

activities

at

The

petitioners

and

void

rationally

to

have

to

for

of

which

the

issued

the

area

assess

requests

have

the

Zoning

initio.

developer

seeks

that

seek

status

agency
all

entity
to

ab

lead

approvals,

the

failure

designated

city

solicited

plan

is

the

81-b.

the

approvals

who

agency

initio.

variance

and

any

ab

City

permits

of

is the

General

Development

Buffalo,

heard.

and

petitioners

of

City

Declaration

Zoning

the

by

the

issuance

Board

Negative

Buffalo

of

the

Planning

determined

of

Mayor

to be fully

come

the

issued

seek

seek

authorizing

matter

challenged

against

Board

enjoined

until

92.

further

petitioners

for

the

determined

site

is

null

and

believed

void

ab

by

the

might

be

initio.

95.

201

Common

Council

impacted

by

96.

the

site

extent

the

Ellicott,

of

the

outcome

Braymiller

plan

that

application

their

interests

LLC

is

City

of

of

this

Markets

as

Buffalo

and

and

action,

Inc.

materials

may

identified

, also

as

a party

designated

is a party

identified

is thus

known

by

tenant

the

outcome

21

25 of 50

take

is one

title

whose

to

the

site

interests

as a party.

Miller

as Bray

a potential

be impacted

named

to

at

the

Markets

site,

of this

and

action.

has

been

is named

identified

is party

in

to

the

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

V.

RECEIVED NYSCEF: 06/17/2019

THE

CITY

OF THEIR

EXCEEDANCE

Section

86.

authorized

§ 27-4.

Abandoned

put

88.

has

the

public.

there

been

there

The

It

transaction

is

the

remains

in public

§ 27-13

Development

on

the

use

public

has

of

which

by

addresses

been

the

been

has

City

mechanisms

the

or

Auction,

if

it may

abandoned,

to

the

be

the

for

that

on

27-4

at issue

held

dictates

the

of

for

the

its

the

the

in

held

property
used

highest

the

identify

dependent

submitted

for

has

property

sold

by

of

Sale

never

or by

auction,

trust

for

continued

public

use

for

the

property,

and

enjoyment

for

which

purpose

parking

Code

bidder

of

it

was

usage.

does

not

benefit

to

apply

has

never

or

Lease

been

the

instant

abandoned

use.

Code

City

property
to

belonging
incidental

or

any

or

in

to

the

for

disposed

therein

control

areas,

a term
of,

auction

or

rental,

when

by

to

and

exceeding

any

person,

authorized

by

appurtenances
city,

of

the

or

22

26 of 50

be

may
years,

or

or

the

council,

sold

or

otherwise
at

marketable
of

or

in substandard

corporation

highest

resolution

for

development

renewal,

firm

thereto

necessary

rehabilitation

ninety-nine

at

bids

the

urban

for

not

sealed

"Sale

replanning,

clearance,

or

and

of

reconstruction

insanitary

leased

the

that

interest
the

for

process

It provides

redevelopment,
and

mechanisms

at Public

auction

remain

Property

sale

actively

or Redevelopment.".

Real

IN

an Appraisal.

remains

Petitioners

the

the

Property

the

abandonment

respectfully
where

public

no

property

and

developed,

for

allows

Council

any

PROPRTY

AUTHORITY.

Real

Abandoned

been

REAL

Property.

or the

has

TRANSFER

provides

Code

City

and

use,

TO

LAWFUL

Real

of

of the

vote

nor

90.

the

of

Sale

to public

Here

89.

of

Property,

two-thirds

and

27

to dispose

87.

been

THREATENING

IS

public
price
which

or

Property

for

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

shall

designate

the

with

the

terms

and

place

of

auction

brief

shall

weeks

in

publication
of

shall

of

the

sale

for

disposed

for

92.

of

While

blighting

General

implementation

of

nor

question,

improvements

93.

the

requires

with

the

the

highest

bidder".

94.

To

would

urban

it

ever

the

simply

been

any

highest

any

the

Ordinances

language

the

other

Upon

the
them

the

highest

thereupon,

may
the

sale

the

a

by

or lease.

or

of

Thus,

two

such

receive

council

receiving

and

area

556

slums

sealed

or blight

bids

not

authorizing

public

for

is

property

contain

when

done,

no

plan,

found

to

for

or

auction

lawfully

being

Code.

507,

§§

renewal

plan

has

that

the

parking

has

been

found

limited

the

been

provisions

transfer

is done

identified

lot

that

for

as part

of

the

covering
serves

transfer

the

the

in

site

surrounding

usage.

which

Law,

guidance

ordinance

Law

been

council.

substandard,

bidder.

to the

renewal

general

extent

of

the

urban

the

order

members,

finding

to

Cities

City

its

there

an

an

Class

following

franchise.

in

city

by

in

a

sold

week

and

and

with

to be

each

the

time

received,

therein

council

together

the

the

to

the

lease

of

designated

certify
and

or

be

once

of

no

pursuant

is blighting

Second

provides

§37

has

of

Municipal

property

and

has

redevelopment

least

person

or rental,

will

interest

specified

nor

a disposition

establishing

at

the

bids,

been

simply

or

sale

Notice

bids

publication

three-fourths

development,

when

property

report
price

has

date

publications

forthwith

vote

there

the

such

thereof.

published

such

marketable

Here,

of

official
or

receipt

91.

the

be

the

to conduct

conditions

or

description

leased,

officer

and

restrictions

to restrict

"In

of

case

must

provide

for

City

attempts

to

where

applicable

no

Urban

dispositions

of

a orooosed

sale

a disposition

interpret

be unauthorized.

23

27 of 50

their

of

real

Renewal

lease

Ordinances

real

at public

in

conflict

of

City

to the

of

same

the

Plan

property

or

the

to

is

Buffalo,

applicable.

highest

estate

bidder

or

auction

with

of

to

§37

the

they

a

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

95.

upon

Based

Counsel's

ever

public

and

applicability

thus

While

2019

97.

At

about

their

98.

relied

users

on

the

the

the

and

property
of

of

of

Board

in

was

Demand

parking

to the

adverse

the

site

impacts

at

would

to

nighttime

public

the

no

was

in the

the

need

24

28 of 50

on

the

parking,

to

public

laws

hearing

allowed

negative

and

Ramp.

no

of

longer

general

IMPACTS

ASSESS

did

impact

events,

by

and

the

by

appraisal,

ADVERSE

petitioners

daytime

Buffalo's

undisclosed

abandonable,

prescribed

noticed

obfuscated

Study

threatened

an

of

City

initio.

have

and

assessed

the

TO RATIONALLY

hearings

require

or

trust

ab

the

daytime,

not

upon

SIGNIFICANT

property,

Planning

which

public

void

appears

Board.

Transportation

introduced

the

that

abandoned

was

REFUSED

Zoning

parking

surplus

the

based

property,

POTENTIAL

Council

the

and

properties,

upon

cumulative

that

be determined

transfer

ZBA
loss

own

The

should

Common

Board

Planning

the

is a breach

submitted

respectfully

of

RESPONDENTS

the

vote

is

sale

IDENTIFIED

MUNICPAL

96.

the

usage,

PETITIONERS

THE

of

determined

having

for

necessary

it

foregoing

authorization

without

VI.

the

to

be

raise

their

heard

issues

use

prior

and

to

their

before

and

the

concerns

enjoyment

of

declaration.

daytime

further

and

demolish

shortage

parking

assumed

staff

City
or

none

of

failed

rebuild

the

and

new

to disclose

the

Mohawk

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

99.

While

the

public

of

representatives

that

property
of

persons

would

100.

have

It

that

small

201

Ellicott

been

operation

of

201

environmental

the

food

101.

warehouse

set by

of

trained

architect

of

the

same

set

structures.

incompatible

forth

the

The

lack

belief,

on

assessed

with

mass

above

the

for

never

that

of

enjoyment

dislocation

The

adverse

of

that

impact

adverse

Appeals

grant

threatened

fabric.

impacts

caused

the

compatibility

of

the

National

by

the

noise

impacts

without

proposed

use

noise

assessed

managing

a variance

the

by

Adverse

rationally

the

Appeals,

significant

of

noise

surrounding

the

by

Secretary

of

the

and

hearings.

significant

Board

Board

of

use

public

believed

also

not.

Zoning

Zoning

is

own

potential

potential

construction

post

and

and

the

was

Benjamin

scale

the

impacts

on

structures

the

raise

their

at the

was

it

for

and

a recognized

is

either

operations

long-term

incidental

to

with

the

mini-market.

and

never

were

standards

image

or

historic

surrounding
impacts

St.

information

Upon

the

and

which

activities,

before

did

to

business

and

adverse

Ellicott

their

assessed

that

assessed,

impact

construction

been

produced

threats

a recognized

is

LLC,

potential

the

considering

of

been

yet

identify

a loss

submitted

never

have

did

businesses

to have

further

of

in

not

has

public

result

needed

is

member

the

could

and

record

of

the

M

Siegel,

as

depicts,

similar

surrounding

the

lead

Register

As

the

the

historic

fenestration

urban

and

fabric

lot

and

building

along

25

29 of 50

in

in

the

As

currently

materials

make

Street.

front

the

affidavit

is objectively
the

the

with

accompanying

site

Washington

however

accordance

Market

structures.

the

Project

identified,

Braymiller

proposed

parking

was

is set forth

surrounding

proposed

themselves

agency

Interior.

the

Google

the

it incongruous

not

Street

historic

and

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

VII.

THE

A.

The

Procedural

The

Planning

102.

Environmental

EAF

The

103.

The

information

the

to

it:

solicited

for

the

procedural

Project

and

lead

by

substantive

its

status,

taking
of

mandates

of

filing

a

Real

Estate.

itself

initial

upon

SEQRA.

EAF

purpose

its

the

Ciminelli

of

completed

location,

with

agents

agency

SEQRA

Process

commenced

a properly

action,

UNDER

PROJECT

Review

Application

itself

617.2(m)

proposed

the

the

Plan

Site

H.

6 NYCRR

to

first

in

response

Council,

to

In its

of

record

must

and

its

contain

potential

enough

on

impacts

FOIL

by
the

boards

lead

by

the

agency;

made

demands,

which

approvals

and

State

of

requirements

prepared

the

York

SEQRA.

available

appear

The

the

sponsor;

the

second

to the

to

have

of

Department

has

three

is the

of

and

public,

been

LEAF

second

part

Environmental

the

EAF

was

not

review

of

was

not

produced

denied

constructively

parts

for

later.

identification

a Special

because

the

New

the

by

description

prepared

petitioner's

set forth

that

public

prepared

implement

project

impacts

the

to

106.

fact

is a form

is the

project

identified

reasons

LEAF

(NYSDEC)

the

potential

the

with

Environmental

of

as Exhibit

Board

describe

The

Conservation

in

herewith

and

THE

OF

environment.

105.

to

Form

Planning

Pursuant

104.

review

Board's

to comply

responsibility

in the

Deficiencies

Assessment

is submitted

REVIEW

BOARD'S

PLANNING

of

Use

the

size

of

and

Permit,

of

the

consistency

perhaps

proposed

rezoning
warehouse
26

30 of 50

with

would

and

zoning
be

the

required

mini-market,

EAF

at page

from

and

the

the

fact

3 omits

Common
that

the

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

structures

affidavit

of

107.

over

Benjamin

From

two

will

if

day

and

duration

109.

On

exceedance

provide

the

over

land

As

are

guidance

is

as

"stacked"

a

structure.

(See

levels

levels

to

project

is

to

anticipated

at p.

be

detail

it

and

noise

the

proposed

operation

or

sources

including

likely

would

be

subsequent

impacts

the

identifying
their

or not

both,

time

of

8)

adverse

produced

whether

construction,

during
provide

construction

and

the

to answer

acknowledge

potential

ever

required

required

did

during

of

3)

noise

K

Exhibit

backgrounds

forth

set

In

of

on

of

John

of

the

producing

operations

could

sources

impact

of

assessed

and

the

omits

would

for

in

failed

to

but

be rationally
noise

noise

the

assessed.

degree

of

their

residential

surrounding

and

concrete

found

P.E.

Schenne,

intolerable

New

applying

the

likely

York

State

noise

DEC

evaluation.

form

Lafayette

the

Hotel

AM&A's
impacts

marketing

asks

and

Places,

the

be

likely

mandatory

potential

affidavit

accompanying

Historic

he

addition,

sheet-metal

the

13,

the

they

standards

page

never

in

that

structure

neighboring

story

permittable

construction

was

was

applicant

was

ambient

at p.

ambient

so that

study

Register

thus

not

the

applicant

(See

noise

so intense

At

National

and

K

applicant

the

"detail"

document

111.

project.

are

usage

110.

impacts

the

EAF

requisite

exceedance

Project

noises.

ambient

assessment

hotel

the

the

No noise

thus

that

Exhibit

exceeding

is yes,

of

of

is

learned

(See

noise

answer

the

we

the

EAF,

produce

and

FEAF

duration.

In the

and

stories,

Siegel).

the

in

years

108.

action

multiple

lacks

the

applicant

which

is

Warehouse

of

the

warehouse

applicant

to

and

31 of 50

the

the

and

historic

feet

AM&A's
incongruous

structures.

on

buildings

fails

40

approximately

incompatible

27

any

unexplainably

Lofts

on

identify

to

from

the

the

identify
the

stores

proposed

buildings

proposed

one-

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

A properly

112.

substantive

iii),

Project

likely

whether

the

113.

historic

significance

shortage

of

is a Type

LEAF

the

in

daytime

the

impacts,

Project

Here

LEAF

prepared

necessary

full

scope

1 action

immediate

of

to

which

the

Lead

the

help

involved

to

Agency

Agencies

determine

the

617.6(ii

and

NYCRR

6

617.6(1)(iv).

at identifying

proximity

spaces

to

NYCRR

r 6

deficient

was

parking

is

potential

noise

project

the

further

and

business

neighboring

impacts

and

failed

structures

to

of

the

identify

district

fabric

relied

failed

to make

the

upon

for

survival.

114.

In disregard

available

B.

review

for

The

at their

Procedural

the

Residents

115.

The

lead

Assess

initial

to follow

office

the

impact

the

on

the

dictates

identified

during

required

to mandate

the

while

was

to

SEQRA

Process

Resulted

Adverse

Environmental

the

determine

review

period,

an Environmental

the

before

Impact

Statement

32 of 50

still

in

after

Impacts

solicited

any

determination

significant

were

be prepared.

file

pending

they

approvals

public

a Substantive

posed

their

potential

final

28

was

project

making

If any

617.7.

and

if

In

action

Board

Planning

environment.

NYCRR

and

617.3,

Council

of

six

of

NYCRR

Significant

task

human

6

Common

the

Potentially

substantive

in

policy

of

responsibilities

agency

adverse

stated

Deficiencies

and

Identify

to the

Failure

to

Threatened

to

and

potential

they
adverse

granted,

accepted

significant

are

impact

they

bound

was

were

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

116.

if

Only

a

adverse

significant

negative

Lead

Agency

impact

on

determines

rationally
aspect

any

of

the

that

there

environment

are

is

potential

no

for

authorized

they

to

any

issue

declaration.

117.

NYCRR

6

significant.

is potentially
To

(1)

this

from
The

subdivision.

considered

the

of

quality

Type

proposed

or

must

air

on

the

have

may

be reasonably

against

a

the

These

criteria

in

criteria

are

environment:

ground

quality,

or surface

increase

a substantial

levels;

impact

may

exhaustive.

not

impacts

in existing

that

impacts

be compared

is illustrative,

noise

an environmental

action

Unlisted
the

adverse

change

traffic

I or

action

list

if

determining

as follows

part

environment,

significant

adverse

or quantity,

the

following

indicators

a substantial

on

for

criteria

a proposed

impact

to result

the

in relevant

whether

adverse

expected

provides

(c)

It provides

determine

significant

(i)

617.7

in

water

solid

waste

production....
impairment

the

(v)

archeological,

open

agricultural,

the

of

quality

important
or

resources

aesthetic

in

change
space

the

or

use,

or recreational

or attracting

encouraging

more

than

place

absent
the

a few

historical,

of

of

intensity
or

resources,

of

compared

days,

the

existing

or

ccmmüñity

in

of

use,

its

land

including

to support

capacity

number

a large

number

to the

of people

of

people

to a place

who

would

or places

come

for

to such

action;

creation

above

of

a material

demand

other

for

actions

that

would

in one

result

of the

consequences;
in

changes

(xi)

or

or

uses;

existing

(x)

character

character;
a substantial

(viii)

(ix)

the

architectural,

neighborhood
....

of

significant

impact

substantial
or

more

of which

none
when

or

has

considered

more

on

adverse

two

(xii)

two

the

related

on

the

actions

would

considered

when

or

funded

a significant
meet

one

of which

has

result

together

in

or

undertaken,

would

no

environment,

environment;

have

cumulatively

the
but

environment,

impact

or

of

clemêñts

on

impact
one

or

approved
the
of

more

the

by

an

agêñcy,
but

environment,
in

criteria

this

subdivision.
(2)

For

purpose

the

listed

consequences
consider

of

in paragraph
related

reasonably

cumulative

whether

determining

impacts,

(1)

of this

long-term,

cause

may

the

subdivision,

short-term,

other

includiñg

an action

direct,
or

simultaneous

lead

one

of the

subsequent

must

agency

indirect

and
actions

which

are:
(i)

included

(ii)

likely

(iii)
(3)

in
to be

dependent
The

any

long-range

undertaken

significance

of

substantial,

or

its

(e.g.,

urban

setting

of

as a result

which

the

thereof,

action

under

consideration

or

thereon.

large

(i)

plan

a likely

important)

consequence

(Le.,
be

should

assessed

or rural);
29

33 of 50

whether
in

it is material,
connection

with:

is a part;

a
a

a

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

its

(ii)
(iii)

its

(iv)

its

irreversibility;
geographic

its

(vi)

[Bold

118.

effect

is set

in

warehouse

and

potentially

impacts

under

the

As

not

noise

structures

their

be

the

review

617.7(c)(v),

assessed,

and

city's

three

the

there

was

The

to

duration

is both

long-term,

significant

declaration

was

potential

the

Board

agenda

no

significant

relied

items

adverse

not

justified

adverse

upon

by

were

before

that

potential

impacts

ZBA

the

the

Agency

published

done.

30

34 of 50

on

the

that

is not

found

the

Secretary
on

there

in their

historic

themselves,

agenda

Washington

on

impacts

assess

impacts

Lead

Board

of

determination

significance

the

structures

application

rationally

Board's

aesthetic

Planning

after

thereafter,

potential

thus

negative

Register

National

Board

by

out

the

forever

adverse

(c)(i).

Planning

by

the

significant

in

the

Planning

website.

Planning

record.

the

potential

And

and

the

617.7

ruling

supported

and

and

historic

rationally

of

the

thus

intense,

and

out,

assessment

the

the

the

ruled

have

in operation,

and

6 NYCRR

Planning

Thus

of

the

EAF,

the

be

by

not

above

in

by

not

we

construction.

two-year

is placed

conclusions

on

the

significant,

noise

are

forth

of

and

no

posted

structures.

market

set forth

had

identified

Standards

mini-

here

Affidavit,

during

could

Council

set

Schenne

both

forever,

and

and

affected.

in the

levels

we

Common
Board

forth

criteria

noise,

people

Added]

and

on

Here

120.

of

noise

the

on

and

number

Emphasis

As

119.

scope;

magnitude;

the

(vii)

occurrence;

duration;

its

(v)

of

probability

items

the

were

own

Street

of

National

no

was

pursuant

to

not

Interior

Register

impacts

documentation

structures

does

the

were

support

required

6

on

of

to

NYCRR
this

was

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

121.

Considered

the

plans

people

pull

to

per

loss

of

the

area

to

support

the

historic

the

structures

structures

is

in

environmental

the

6 NYCRR

617.6

Although

Board

failed

implementing
a.

failing
threatens

b.

failing

the

effect.

Considered

a mandatory

and

617.7

(c )(viii)),

function.

We

have

of

a poor

parking

precluded

an environmental

was

out

the

that

necessary

to

support

have

triggered

a negative

impact

must

be,

the

capacity

of

the

in

considered

of the

restored

bombardment

follow

will

the

the

according

daytime

to be

capacity

of

the

two

structures.

together

criteria

of

Record

years

it

an

of

further

they

to the

the

While

requirement

declaration,

study

hundred

not.

potential

the

the

with

for

as they

had

and

plan

should

demands

reduces

that

stress

site

several

together,

factor

to

upon

the

actions

ongoing

likely

alone

study,

and

imposition

increases

elements

loss

factor

for

will

was

based

the

together

Ellicott,

set forth

in

(c)(1)(xi).

the

of

in

with

their

at 6

work

of

NYCRR

to identify

the

extent,

of

allow

to

response

to

and

product

their

617.7

substantive

local

review

FOIL

the

demands

process,

it

duties

before

somewhat

appears

the

hinders

Planning

SEQRA

under

the

and

its

by:

daytime

the

identify

displacement

in

delay

performance

properly
the

the

failure

staffs

SEQRA

their

regulations

to

Board

Planning
together

identification

the

to

and

service,

future

at 201

spaces

parking

which

NYCRR

6

noise

each

need

Board,

Planning

and

or more

and

impact

exacerbate

uses

continue

activity,

submitted

123.

two

intolerable

a construction

the

( See

to

with

with

existing

Declaration

site

cumulative

a

together

the

from

ramp

Ellicott

pose

we do have

Here

201

all

site,

parking

Negative

122.

the

of

removal

Mohawk

the

at

day

at the

parking

the

together,

shortage

parking

in

the

area

which

businesses;

duration,

and

31

35 of 50

intensity

of

noise

pressure

impacts;

and

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

c.

to produce

failing
of

Transportation

never

in

potential

potential

coordinated

at

identify
on

impacts

and

same,

with

on

impacts

prior

review

New

the

the

to

York

Oak

the

State

Street

issuance

Department

Arterial

of

the

were

negative

and

to

failing

a

communication

the

showing

assessed

declaration;

d.

of

a record

assess

the

the

of

commencement

Lafayette

potential

Hotel

impacts

and

the

environmental

perform

pursuant

view

any
the

to

review

shed

studies

of

Secretary

process

on

the

the

Interior

Standards.

THE

VIII.

ZBA

124.

The

125.

Counsel

126.

The
would
or

127.

the

the

on

Office

be available

of

within

about

two

variances

for

the

Project.

On May

29,

2019

matters

At

business

to see the

submitted

Strategic
20

day

file

the

(See

which
the

for
that

on

petitioners

is traditionally

May

REQUESTS

2019.

15,

on

the

have
of

on
on

May

or

about

to the

kept

on

that

Thursday

ZBA

the

challenging

went

2019

22,

Planning

a table

for

grant

Board's
public

time

of

the

request

action

by

the

Common

32

36 of 50

Council

was

still

the

June

is the

pending.

material
13, 2019,

of

the

office

viewing

are pending.

the

who

Clerk,

City

I).

responded
would

FOIL

demand

Exhibit

expiration

the

project

a FOIL

Planning

days

before

counsel

public

for

17, 2019.

May

OF THE

DENIAL

approval

first

petitioners

Officer

City's

requested

128.

granted

for

FOlL

City's

CONSTRUCTIVE

CITY'S

area

and
while

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

129.

The

City's

to have

busy

130.

The

on

this

then

the

Based

upon

and

when

the

The

allow

same

force

133.

of

City
Ellicott

upon

Based

Buffalo

LLC

exceeded

without

The

the

same

any

Petitioners

force

and

re-allege

and

fully

proof

repeat

effect

do

timely

put

away,

reviewed

by

was

materials

request

was

the

required

Court

provide

the

time

to amend

of

a First

each

set forth

and

she

was

too

public

to be

the

to stay

complete
their

the

response

bodies

filed.

proceedings
to

the

FOIL

pleadings.

and

public

and

and

as if more

each

fully

the

that

the

approving

a Second

re-allege

of

every

submitted

were

bidding

For

Relief

paragraphs

foregoing

with

herein.

in

authority

for

Claim

it is respectfully

lawful

As

134.

For

foregoing

its

file

78 Petition

reasonable

and

as if more

the

the

RELIEF

repeat

effect

and

to

City

the

Article

Petitioners

Petitioners

FOR

Petitioners

the

of

any
first

the

the

As

132.

produce

foregoing,
Order

that

table.

period

and

CLAIMS

IX.

the

to

the

then

on

responded

Planning

declined

time

Petition,

demands,

of

it placed

City

throughout

131.

Director

commended

Claim

and

set forth

33

37 of 50

for

every
herein.

the

sale

of

Common
201

competitive

Council

Ellicott

St.

of

to

the

201

procurement.

Relief

of

the

foregoing

paragraphs

with

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

135.

Based

to

commence

upon

with

all

Application,

Site

review

environmental

complete

all

the

and

potential

refusal

to

public

comment,

significant

adverse

impacts

them

it is submitted

As

The

the

Petitioners

same

137.

It

force

is

Common

effect

alleged

Plan

Council

before

The

the

same

Petitioners

force

and

repeat

effect

For

and

upon

with

based

the

Planning

failure

social

and

Board

failed

Claim

for

the

which

refusal

Board's

to

all

the

of

requests

the

with

of

failure

to

agencies

environmental

review

Project

on

would

have

the

in

actions

host

facilitated

weigh

impacts

to perform

form

involved

rationally

economic

failure

assessment

Planning

actions

the

FOIL

net

the

impacts

upon

that

the

and

each

fully

and

potential

a Findings

enjoined

upon

paragraphs

with

acted

Board

for

a Project

that

For

be used

a Fourth

as if more

fully

to site

and

set forth
34

38 of 50

for

every
herein.

the

foregoing

outside

required

Claim

each

re-allege

of

every
herein.

Planning

could

Relief

set forth

the

land

and

a Third

re-allege

as if more

approval

As

138.

and

repeat

and

herein

a Site

issuing

based

Board's

Planning

environmental

upon

required

the

law.

by

136.

the

based

the

with

adequate

significant

against

that

all

comply
and

that

an

and

and

raised

the

with

for

EAF,

meaningful

Statement

it is submitted

foregoing

Plan

a sufficiently

environment,

the

review

the

the

evaluate

of

an environmental

of

receipt

coordinate

to

upon

their

a Special

a 14,000

lawful

Use

square

foot

authority

in

from

the

Permit

warehouse.

Relief

of

the

foregoing

paragraphs

with

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

139.

Based

submitted

granting

authority
Project

the

upon

that

Site

the

and

until

approval

should

they
such

time

The

the

141.

same

The

adverse

Petitioners

force

repeat

effect

and

on

impacts

the

use

ZBA

For

and

a Fifth

each

set forth

fully

determination

environment

that

it

process

but

included

in

final

for

and

action

are

are

Claim

re-allege

taken

issuing

SEQRA

of

review

which

from

mandates

and

have

variances,

enjoined

as if more

Board's

Planning

be

as the

As

140.

and

environmental

the

and

Board,

Planning

Plan

of

inadequacy

exceedance

approval

and

procedurally

not

of

and

is

hereby

limited

their

permits

substantively

to

lawful

to

the

met.

Relief

every

of

the

paragraphs

foregoing

with

herein.

the

posed

Project

is not

supported

a Sixth

Claim

by

the

no potential

and

Record,

significant

is arbitrary

and

capricious

As

142.

The

the

143.

same

The

repeat

Petitioners

force

and

ZBA's

undesirable

and

adverse

change

For

and

re-allege

as if more

effect

assumed

detriment

arbitrary

and

capricious,

on the

to

each

fully

that

properties

nearby
and

Petitioners

the

grant

and

set forth

determinations

for

every

the

was

property

variance

the

of

39 of 50

paragraphs

foregoing

Project

would

Gen.

by

without

an exceedance

35

the

with

herein.

as required

of

Relief

of

City

not

Law

a record

their

lawful

produce

81-b

(4)(i)

supporting
authority.

an

was

no

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

and

As

144.

The

the

Petitioners

same

force

The

ZBA's

145.

impact

on

Gen.

City

without

the

repeat

and

81-b

a record

of

or

The

the

147.

lawful

lawful

Petitioners

repeat

same

force

and

The

City

is

effect

the

same

Petitioners

force

and

effect

every

of

the

and

Project

in

the

foregoing

would

not

paragraphs

on

the

produce

neighborhood

and

capricious,

impact

the

with

herein.

conditions

adverse

and

For

and

an

to

and

and

Eighth

re-allege

For

the

an

adverse

as required

grant

of

of

any

neighborhood

a Ninth

by

the

variance

kind

was

an

every

of

and

forth

36

40 of 50

the

foregoing

with

paragraphs

herein.

Claim

set

Relief

issue

relief

each

fully

for

and

land,

injunctive

re-allege

as if more

and

forth

set

fully

and

Claim

each

transfer

preliminary

repeat

Relief

authority.

threatening
and

authority,

The

no

forth

that

arbitrary

as if more

As

148.

was

and

set

fully

for

Claim

each

environmental

(4)(iv)

As

146.

re-allege

determinations

supporting
their

a Seventh

as if more

assumed

Law

exceedance

and

effect

physical

For

for

permits

in

exceedance

of

their

is warranted.

Relief

every
herein.

of

the

foregoing

paragraphs

with

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

149.

Based

with

procedure

and

Act

also

to

both

with

regard

to

and

copying

The

the

151.

Petitioners

same

force

upon

Based

adverse

impacts

impacts

during

restored

urban

two

avoiding,

maximum

arbitrary

and

The

Foil

Officer

on

each

re-allege

and

set forth

fully

that

the

to

of

have

the

and

the

an

of

issuance

abuse

of

the

to

and

paragraphs

foregoing

consider

of

but

failed

up
to

for

with

with

the

limited

time

a State

comply

Conditioned

and

not

aesthetic

on

to

noise

to

parking

and

arterial

it

road,

impacts

to

Declaration

of

the

Site

Plan

authority.

and

counsel

17th,

For

an

Eleventh

submitted

FOIL

Claim

demands

2019.

37

41 of 50

for

Relief

upon

the

Municipal

is

mandate

SEQRA's

Negative

the

significance,

adverse

approval

significant

potentially

day

potential

Project's

discretion,

is

critical

and

backing

the

the

includes

historic

Board

mitigating

of

fully

vehicles

Planning

or

and

failure

buildings

would

available

herein.

removal

that

Review

Quality

them

lawful

Relief

every

construction,

including

of

violations

Environmental

making

for

of

years

lawful

May

Claim

which

Plan

Petitioners'

a Tenth

environment

As

152.

and

host

possible

of

documents

the

capricious

an exceedance

State's

in

engaged

to FOIL.

as if more

minimizing
extent

the

Board's

submitted

respectfully

has

Planning

fabric

a Site

approving

of

on

For

and

effect

the

of

filing

Board

with

compliance

and

repeat

and

Planning

pursuant

As

150.

the

foregoing

regard

review

public

the

upon

Respondents

the

was

was

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

On May

153.

in

On May
believed

155.

Planning

Department

29th,

the

Planning

Director

to be

The

demands

as

the

of

been

open

date

files

for

the

City,

would

they

to

of

practice

challenge

to the

to

first

the

not

the

produce

documents

the

Petitioners

a Project

providing
the

approvals

show

while

delayed

a challenge

filing

to

declined

thence

time

with

comply

The

any
final

first

in

was

taken

in

to the

response

now

and

pending,

furtherance

Agenda

the

records

is pending.

documents

action

in

counsel

approval

approval

contained

force

same

Based

established

and

of

the

have

packets

not

upon

and

a reasonable

Court

grant

Department,

the

Office

Mandamus

Relief

Planning

likelihood

to

for

each

and

this

relief

mandamus

of

the

to

Mayor,

is

respectfully

of

success

of

the

paragraphs

foregoing

submitted

on

with

comply

every

with

herein.

set forth

fully
it

failure

Claim

re-allege

foregoing,

Commission's

Planning

A Twelfth

as if more

effect

the

the

request

demands.

For

repeat

and

Petitioners

Board,

FOIL

the

Petitioners

the

foregoing,

Planning

As

158.

the

pertaining

upon

the

directing

the

responded

produced.

Based

157.

as a matter

Department

while

last

the

Project,

kept

Planning

FOIL

fully

the

20 days.

154.

156.

22nd,

the

the

that

merits

based

procedural

and

the

Petitioners

upon

the

have

respondent

substantive

mandates

SEQRA.

159.

It

is

neighboring
excavation

further

submitted

business

and

rely

construction

that

upon,

the

and

activities

tearing
the

on

up

of

the

imminent

a

site

38

42 of 50

municipal

commencement

with

no

restrictions,

parking

resource

of

two

or

safeguards

years

the

of

to

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

protect

the

of

Project

the

It

further

is

granted

so

approval

any

that

of

the

allow

cuts

with

NEPA

relies,

required

to place

a 14,000

the

that

Thus,

balances

I62.

the

matter

come

may

WHEREFORE,
at law;

and

1.

a.

has

the

equities

in

favor

not

support

that

all

of

been

foot

desired

the

granting

to be fully

an

to

of

the

the

neighbors

issuance

on

the

approved

of

of

and

funds

no

been

NYS

DOT

showing

of

which

the

upon

Special

the

have

Permit

Use

site.

is not

relief

of

showing

federal

for

yet

injunctive

injunctive

approvals

Arterial,

application

preliminary

preliminary

a State

expenditure

warehouse

Project

on

up

is no

there

Namely

to back

there

to go

ready

forward

further

relief.

will

preserve

the

status

quo

no

adequate

until

heard.

submitted

it is respectfully
request

accordingly
Issue

threat

REQUESTED

RELIEF

X.

the

proceed.

trucks

square

favor

granting

does

so as to allow

the

in

equity

Finally,

this

fact

to

to allow

nor

Project

Record

Project

the

housing

161.

a potential

poses

of

balancing

that

curb

compliance

a

noises

relief.

submitted

as to

deleterious

warrants

injunctive

preliminary
160.

against

community

this

sale

operated

Estate

fully

and

Relief

transfer

of

as a parking

Corporation,

heard

and

any

decided;

Petitioners

201

and

staying

portion

at 201

ramp
or

the

have

remedy

to:

Injunctive

Preliminary

The

Court

that

or

the

Ellicott

Ellicott,

and

39

43 of 50

LLC

preventing:

whole

of

St.,

Buffalo,

until

this

the

properties

NY
matter

to

currently

Ciminelli

may

come

Real

to

be

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

b.

The

the

properties

NY
c.

of

abandonment

until

Staying

matter

each

and

all

of

Instruments

as a parking

come

may

usage

parking

operated

currently

this

public

the

to be

the

named

Deeds,

or

known

as 201

Ellicott

Street,

until

of

Buffalo

and

all

its departments,

with

the

Freedom

14,

2019

and

control

matter

this

at 201

or

of

come

may

whole

St.,

of

Buffalo,

and

from

the

the

Ellicott

decided;

Respondents

or

title,

conveying

portion

any

ramp
heard

fully

above

of

executing

premises

to be

any

commonly

fully

heard

and

and

agencies

decided.;

2.

Direct

fully
the

of

the

respond

to

on

May

City
area

3.

City
and

13 and

null

and

section

the

SEQRA

the

by

, and/or

its

null

and

Declaration

Law

null

and

on

or about

the

of

Site

granting
on

entities

void

ab

of

the

voted

on

of

City

the

by

prior

ab

May

served

initio

15,

May

20,

to

2019

including
Board

Planning

on

to

upon

granting
and

2019;

determinations

Buffalo,

the

Approval

Plan

or about

all

initio

demands

void

Corporation

related

Board

Planning

Negative

initio

ab

Information

of

; andDetermine

Estate

void

determining

made

Real

and

Corporation

Estate

vacating

May

to Ciminelli

variances

Determine

Real

comply

boards,

officers,

Ciminelli

further

and

related

to

but

not

or

about

May

Project

and

the

limited

to
6th

2019;

4.

enjoin

Permanently

Permit

and

by
agencies

State's

adverse

the

fully

persons

use

persons

and

of

actions

Respondents

or

their

agents

with

the

substantive

Conservation

environmental

and

taking

comply

Environmental

businesses

and

of

any

the

Law

impact

of

based

upon

enjoyment

the

of the

the

city

by

adverse

premises
40

44 of 50

of

this

Buffalo

Article

the

assessing

threatens

impacts

of

of

requirements

which

of

furtherance

until

(SEQRA)

project

the

in

the

and

8 of

potential

displacement

surrounding

local

its

the

boards

New

York

significant

of

local

businesses

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

a.

Assessing
on

b.

the

use

the

potential

and

enjoyment

deficiencies

of

c.

the

be

rationally

assessing

5.

by

Article

any

8 of

the

Environmental

found

at

hours

Finding

a.

the

of

include

A

are

SEQRA
but

rational

urban

or

not

Act,

review,

and

all

its

be limited

assessment

existent

daytime

Ellicott

AMA's

Ellicott

St.

parking

the

and

Building,

on

buildout

proposed

in

placement

upon

relies

trucks

for

warehouse

backing

into

Oak

the

Street

operation

of

their

or

actions

in

agents

until

Law

SEQRA)

but

, including

made

at 201

parking

at 201

parking

impacts

Conservation

Review

617

of

taking

Environmental

Statements

food

Respondents

environmental

mandates

should

the

project

and

existing

former

the

by

Ramp;

on

their

generated

consideration

of

the

which

NYCRR

coordinated

at

of

Quality

6

loss

distribution

enjoin

of

the

traffic

limits

of

into

potential

Permanently
permit

removal

taking

by

Mohawk

of the

without

after

the

developments

demolition

description

of

pressures

properties;

surrounding

exacerbated

approved

noise

impacts

impact

usage

land

surrounding

of

the

assesses

rationally

adverse

not

furtherance

respondents

Environmental

strict

procedural

fully
referred

all

implementing

and

to

and

the

the

undertaking

Impact

Statement

substantive

regulations.

implementing

this

(Commonly

limited

and

of

Such

Project

comply
to

as

and

the

with

the

the

State

regulations

of

is

compliance

Environmental

a properly
and

drafted,

with

review

to:

and

of

study

noise

fabric;

41

45 of 50

pressure

impacts

on

the

the

surrounding

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

b.

A

rational

assessment

businesses

surrounding

A

rational

historic

Interior

historic

d.

the

6.

Award

Grant

and

Dated:

June

17th,

the

Project

land

usages

study

which

is

State's

Oak

Street

to Article

such

other

costs

to

6 of the

further

and

of

in

the

on

land

surrounding

which

Project

with

accordance

for

standards

and

reasonable

impacts

importance

structures;

York

pursuant

7.

approved

of

adopted

traffic

New

and

assessment

determined

the

of

impacts

on

rely

usage

existent

day

on

time

and

parking;

c.

of

assesses

surrounding

the

United

of

impacts

assessing

impact

the

on

of

structures

States

new

proposed

of

of

Secretary

construction

truck

on

operations

on

Arterial

the

Petitioners

Public

Officers

different

relief

from

the

Respondent

Law,

and

to

Petitioner

City

as this

2019

Richard

Muscato
Richard

and

Franklin

Buffalo,
(716)

42

46 of 50

NY
842-0550

of

Esq.

PLLC

Shatkin,

Esq.

E. Stanton,

Appearing
415

E. Stanton,

Counsel

Street
14202

Buffalo

and

otherwise;

equitable.

_/s/

of

Court

deems

just

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

VERIFICATION

YORK

OF NEW

STATE

OF ERIE

COUNTY

)

ss.

)

EDWARD
Petitioners

in the

STUDIO,

one

Petition

knows

and

as to the

above

of the

matters

the

stated
them

duly

and

thereof;

and

to be alleged

that

n

otary

to before
day

as a d/b/a

upon

captioned
the

same

information

FIBICH

me this

of June,

2019.

Pbblic

NANCY

E CLARK

NOTARY PUBLIC-STATE

OF NEW YORK

No OtCL6308963
Oualifiedin
My Commission

and

deposes

to be true.

EbWARb
Sworn

swom

operates

in afore

Petitioners

contents

therein

being

matter

captioned
named

he believes

allegations

FIBICH,

New York County
Expires08-04-2022

47 of 50

the

DARK

matter;

that

is true

to his

and

that

says

belief,

HORSE

he has
own
and

he is one

read

of the

HAIR
the

foregoing

knowledge,
as to those

except

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

VERIFICATION
OF NEW

STATE
COUNTY

Rocco
of ABL

ABL
am

deponent's

belief

investigations

the

which

and

that

the

Lafayette

Member

matters

has caused

acquired

corporation

and

in the

by
from

the

said

of the

Petition

not

deponent

in the
and

ROCCO

Sworn

to before
day

Notary

201

.

E CLARK
NANCY
OF NEW YORK
PUBLIC-STATE
NOTARY
01CL6308983
No
My Commission

afore

New York County
Expires08-04-2022

48 of 50

by

Lofts,

upon

of his
of said

the

and

that

matter;
same

is true

information

deponent

and

and

by

the

Signature

the

and

grounds
are

knowledge,
matter

as a member

corporation.

and

not

Companies,

entities,
own

subject

duties

the

upon

LLC,

his

Signature

captioned

Liability

referenced

stated

TERMINI

Publ

Qualifiedin

H@

are Limited

course

me this

of June,

to be alleged

concerning

papers

and

thereof;

Member

Managing

LLC,

in afore

is made

LLC,

to be made

the books

stated

entities

of each
said

H@

verification

Leasing

the

he 1s the
Loffs,

Petitioners

contents

therein
this

that

says

LLC,

named

knows

reason

, is because

deponent

information

of said

the

as to the matters

Managing

as to all

and

and

Leasing

are amongst

Buffalo

LLC

deposes

Lafayette

Petition

says

The

LLC,
and

who

except

further

sworn

duly

Buffalo

foregoing

Buffalo,

an Officer

Petition

the

Deponent
Leasing,

officer

LLC

knowledge,

Development

being
The

Buffalo,

own

belief.

)

LLC,

he has read

to his

)

as.

Termini,,

Leasing,

Development
that

YORK

OF ERIE

of this
and/or

I
of

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

VERIFICATION
OF NEW

STATE
COUNTY

YORK

OF ERIE

)
ss.

)

KATHLEEN
individual

her

and

the

matter

this

stated

verification
the

said

to be alleged

GROOM

are investigations

which

deponent

and

information

Petition
officer

of said

corporation

LLC

and

in the

not

has caused

th

THLEEN
and

Sw

rn to before
day

Notary

as Managing

me this

of June,

20

9.

ic

NANCY
E CLARK
NOTARY PUBLIC-sTATE OF NEW YORK
No 01CL6308863
OualifiedinNew

York County

MyCommissionExpnes08-04-2022

49 of 50

and

the

SERVICE

upon

concerning

course

of her
of said

Member

LLC,

except

further

says

LLC,

NEW

and
her

in

foregoing

knowledge,

papers

AMBROSE,

is an

Service,

Deponent

stated

she

capacity,and

is a corporation

not

in the

books

own

GROOM

to be made

onent
from

that

she has read

belief.

YORK

Petition

said

acquired

by

indivual

to her

and

NEW

LLC,

states

is true

same

says

of Groom

in her

and

information

upon

SERVICE
matters

and/or

the

by deponent

as to all

of this

that

and

Member

Petition

the

Service,

and

thereof;

deposes

Managing

verifies

Groom

sworn

duly

and the

hereby

of

is made

belief

of deponent's

knowledge,
member

therein

matters

is because

grounds

contents

, being

matter,

She

Member

the

knows

reason

YORK

matter.

as Managing

capacity

as to the

in this

in this

Petitioner

Petition

that

Petitioner

named

another

AMBROSE

the

own

the

subject

duties

as a

corporation.

Individually
of

Groom

Service,

LLC

 INDEX NO. 807404/2019

FILED: ERIE COUNTY CLERK 06/17/2019 02:45 PM
NYSCEF DOC. NO. 1

RECEIVED NYSCEF: 06/17/2019

VERIFICATION

NEW YORK

OF

STATE

COUNTY

OF ERIE

Room

Tap
has

read

own

at
the

Room

except

the

says

of

of

member

Inc

the

and/or

the

Tap

all

matters

as

to

said

corporation

Room

deponent

in

has

acquired

by

and/or

EARL
Sworn

of

ay

Ñotary
RICHARD
NOTARY

me

before

to

this

20J9.

June

Publi

EDMUNÔ
ERIE
LIC.

COMM.

OF NEW YORK

STATE

PUBLIC

ESQ.

STANTON,

COUNTY

#028T6277461

EXR

03/11/20

2

L __

50 of 50

the

at

caused
deponent

om

A.

t

be
in

e boolps

KETRY

t1

informatio
and

not

made

is

a co

u

stated

concerning

e coµrse
and

Pr

same

the

Inc

Petition
to

that

deponent

Lafayette,

said

the

by

the

captioned

upon

alleged

made

is

is

afore

and

be

to

he

that
in

thereof;

stated

because

information

of

therein

says

Petitioners

contents

verification

which

and

the

this

belief

officer

knows

matters

named

the

and

deposes

reason

investigations
Petition

this

to

is

deponent's

are

knowledge,

and

the

that

Lafayette,

grounds

matter

as

of

one

Petition

sworn

duly

being
Inc.,

foregoing

further
at

Ketry,

Lafayette,

knowledge,

Deponent

the

the

ss.

)

Earl

)

apers

of

his

of