STATE OF NEW YORK
SUPREME COURT - PART 24

:

COUNTY OF ERIE

THE TAP ROOM AT THE LAFAYETTE, INC.; KATHLEEN AMBROSE; CLASSIC
EVENT AT THE LAFAYETTE, LLC; ABL LEASING, LLC; THE BUFFALO
LAFAYETTE LEASING, LLC; HAT LOFTS, LLC; SIGNATURE DEVELOPMENT
BUFFALO, LLC; EDWARD FIBITCH,
Petitioners,
-against-

DOCKET NO. 807404/2019

BYRON BROWN; THE CITY OF BUFFALO, NY; THE CITY OF BUFFALO
PLANNING BOARD; THE CITY OF BUFFALO ZONING BOARD OF APPEALS;
BRAYMILLER MARKET, INC.; CIMINELLI REALTY DEVELOPMENT CORP.; 201
ELLICOTT, LLC,
Respondents.
25 Delware Avenue - 4th Floor
Buffalo, New York
July 3, 2019

B e f o r e:
HONORABLE EMILIO L. COLAIACOVO,
Supreme Court Judge

A p p e a r a n c e s:
RICHARD EDMOND STANTON, ESQ.
BRIAN MICHAEL MELBER, ESQ.
Appearing for the Petitioners.
JENNIFER CRISTINA PERSICO, ESQ.
SEAN W. HOPKINS, ESQ.
Appearing for the Non-Municipal Respondents.
JESSICA M. LAZARIN, ESQ.
Appearing for the Municipal Respondents.

Reported By:

LAUREN A. ADAMS, NYRCR, RMR, CRR
Official Court Reporter

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(Proceedings commenced at 2:09 p.m.)

2

THE CLERK:

In the matter of the Tap Room at

3

the Lafayette, Inc., et al. versus Byron Brown, et al.

4

Index number 870404-2019.

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6

Counsel, please note your appearance for the
record, beginning with the Petitioner.

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8

MR. STANTON:

petitioners, together with --

9
10

Richard Stanton on behalf of the

MR. MELBER:

Brian Melber also for all the

petitioners, your Honor.

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MS. PERSICO:

Jennifer Persico, here

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representing all of the non-municipal defendants --

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respondents, rather.

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MS. LAZARIN:

Jessica Lazarin for the City of

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Buffalo Law Department, representing the municipal

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respondents in the matter.

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THE COURT:

All right.

Good afternoon to all

18

of you.

19

attorneys regarding the -- an issue.

20

been resolved, but I believe, Mr. Hopkins, you want to

21

place it on the record, so go ahead.

22

Before we begin, we had a conference with the

MS. PERSICO:

I believe it's

Your Honor, actually, given the

23

nature of the issue that was raised, I think I would

24

prefer to put that on the record, just to ensure the

25

pristine nature of these proceedings.

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THE COURT:

Sure.

2

MS. PERSICO:

There was an objection raised by

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petitioners' counsel and the individual client, who is a

4

member of a number of the LLCs, that there was a

5

potential conflict with Mr. Hopkins representing the

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respondents in this matter, inasmuch as Mr. Termini has

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an alleged ownership interest in a number of LLCs that

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Mr. Hopkins' firm allegedly represents, and Mr. Termini

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will not waive whatever perceived conflict there is

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there.

11

So, accordingly, Mr. Hopkins will not be

12

representing the respondents -- the non-municipal -- or

13

actually, the municipal respondents, either, in this

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matter.

15

papers, is not at issue here because it is simply a fact

16

affidavit, because Mr. Hopkins was at each of the

17

meetings and involved in all of the proceedings involved

18

in his -- set forth in his affidavit.

19

wanted to put that on the record, and also note that we

20

were only advised of this approximately three minutes

21

before our court appearance today.

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His affidavit, which was submitted with the

And so we just

And Mr. Hopkins' involvement has been a matter

23

of public record on NYSCEF, and to petitioners' counsel

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since the commencement of this action.

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THE COURT:

Thank you.

Mr. Stanton or Mr. Melber, do you

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wish to be heard on that?
MR. STANTON:

Your Honor, with regards to the

3

remedy to the situation, Ms. Persico speaks absolutely

4

accurately, and we're fine with that.

5

THE COURT:

That's satisfactory to you, then?

6

MR. STANTON:

7

THE COURT:

Yes.

All right.

Just by way of

8

background, so that we can properly tee up what we're

9

here to discuss today, and that is that this Court

10

granted an Order to Show Cause on, I believe, June 24th,

11

and granted a preliminary injunction, and I scheduled

12

the matter for argument with respect to the continuation

13

of the preliminary injunction for today.

14

received your papers.

15
16
17

The Court has

So, Mr. Stanton, I'm going to allow you to
proceed with your argument on that.
MR. STANTON:

Okay.

Your Honor, Mr. Melber

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and I may split the argument if that's okay with you.

19

will address --

20

THE COURT:

Well, I mean, you can try, but I

21

might have questions.

22

deal with that.

23

approach it, but let's just start there.

24
25

I

I don't know how we're going to

I don't know how you're going to

MR. STANTON:

I will start, your Honor.

As a

first matter, there was an objection that the statute of

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1

limitations was missed with regards to the challenges to

2

the Zoning Board of Appeals action.

3

the date for the filing of the petitioners' -- the date

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for the filing of the petition is 30 days.

5

would have expired on a Sunday and extends to the

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Monday.

7

of June.

8

corroborate that.

We all agree that

The 30 days

This action was commenced on Monday, the 17th
The first items -- 12 items in the docket

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What happens when you electronically file now,

10

is you file your petition, that's the only document they

11

take initially, then you wait for an index number.

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Section 304, subsection A of the second sentence says a

13

special proceeding is commenced by filing a petition in

14

accordance with rule twenty-one hundred two of this

15

chapter.

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items number 1 through 12 of the docket were filed at

17

2:45 on that day.

That's exactly what was done on June 17th when

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THE COURT:

19

MR. STANTON:

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21

first.

CPLR

Okay.
So, I just wanted to cover that

I know you -THE COURT:

I would prefer to address, I

22

guess, more of the issues that I have questions on.

23

With respect to standing, one of the issues that was

24

raised in the respondents' papers was that your clients

25

don't have standing.

They allege that Mr. Koessler,

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1

perhaps, missed standing, that the counselor may have

2

standing, but the remainder of the petitioners don't

3

have standing to commence this proceeding.

4

like to know --

5

MR. STANTON:

6

THE COURT:

7

I will go through that.

-- if there's any belief they were

existing.

8
9

So, I would

MR. STANTON:

Absolutely, your Honor.

And

standing is a threshold issue on all of the causes of

10

action brought.

11

that are brought, and standing always is going to boil

12

down to one issue:

13

within the zone of interest of the statute at issue?

14

There's three areas of causes of action

Are the individuals or the entities

One of the lead cases on this, is The Matter

15

of Gernatt Asphalt Products v. Town of Sardinia, as well

16

as The Society of Plastics Industry v. County of Suffolk

17

case cited by the petitioners.

18

what are the zones of interest?

19

It always comes down to,

The Court of Appeals has been very, very

20

active over the past maybe 15 years on clarifying what

21

is standing and have different standards for different

22

cases.

23

Appeals line of cases was Saratoga Chamber of Commerce

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v. Pataki, 100 N.Y.2d 801-203.

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They started out the first case in the Court of

And in that case, that was a challenge to

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1

Governor Pataki signing of a compact with an Indian

2

nation.

3

benefit of the agreement would not be one likely to

4

complain on whether or not they were going to allow the

5

IDA standing.

6

public interest, it was a broader standard to allow a

7

standing for it.

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9

In that case, it was -- the party who got the

They determine when you're protecting the

That's adopted since then with some major
cases by the Court of Appeals.

There's the Pine Barrens

10

case -- or Pine Bush case v. The Common Council of the

11

City of Albany, 13 N.Y.3d 297 (2009).

12

land that was -- it was a resource in the Pine Barrens

13

outside of Albany, and there was a couple species -- a

14

couple sensitive species of concerns -- what was the

15

Karner blue butterfly, of all things.

16

THE COURT:

That was private

Although, in this particular case

17

we have a falcon that perhaps is affected by this

18

project.

19

MR. STANTON:

20

THE COURT:

21
22

Yeah, we haven't raised that --

Well, this case is everything but

wetlands, so -MR. STANTON:

Yeah.

And it really is the

23

noise and displacement of persons in our businesses is

24

our primary concern, and reaching the public trust, and

25

who can enforce those in the variance issue.

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So there, they allowed standing to another

2

group of unincorporated persons who had an interest in

3

the matter and were losing the loss and use of enjoyment

4

of a species.

5

Then, there was another big case which --

THE COURT:

Your argument essentially is that

6

because they derive a benefit from these parking spots

7

and would be affected by the noise, regardless of what

8

they did previously, they have standing because of how

9

this anticipated and contemplated project would

10

adversely affect them?

11

MR. STANTON:

The public trust -- that's my

12

argument of the public trust, because they utilize and

13

rely on the parking spaces for their own maintenance of

14

their own property and enjoyment of their own property

15

interest --

16

THE COURT:

So that, in and of itself, confers

17

standing to bring the Petition.

18

MR. STANTON:

On the public trust.

Only on

19

the public trust, not under SEQRA.

SEQRA is a different

20

standard, your Honor, because it's a different zone of

21

interest.

22

Environmental harm under SEQRA is defined under 8-105 of

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the Environmental Conservation Law.

24

law, we consider the quality of the human environment

25

character -- impact on character effect of the

SEQRA is an environmental harm statute.

Unlike the federal

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neighborhood and displacement of businesses as small

2

persons --

3

THE COURT:

4

MR. STANTON:

5

THE COURT:

6

So anyone can bring that?
No, no.

You got to be harmed.

I mean, anyone that alleges a

harm?

7

MR. STANTON:

8

THE COURT:

9

MR. STANTON:

Anybody to bring the petition.

Yeah, yeah.
Because standing -- you don't

10

have to win to have standing.

11

THE COURT:

12

MR. STANTON:

No, no.

I understand.

Standing -- you have got to

13

have it.

14

of their own property, their own interest that is

15

different than the public at large gain standing, and

16

here we're saying there's people that own about 150

17

apartments, some people live inside those apartments.

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So, anyone impacted on their use and enjoyment

One of the main petitioners, the apartment

19

owners, which would be AM&A's Lofts on some of them, and

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ABL Leasing, the hotel room with the windows facing the

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Ellicott Street area, which is about -- under the

22

construction, they would have standing.

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The businesses threatened with displacement

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because of a four-and-a-half-year waiting list for

25

parking downtown in conditions where they need it would

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have standing based on threat of displacement.

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THE COURT:

But I mean, I guess, with respect

3

to the parking issue, is displacement of a parking space

4

sufficient enough to give somebody one standing?

5

number two, sufficient enough to thwart in proceeding

6

with this project?

7

MR. STANTON:

And

One parking space we're not

8

saying would be enough, your Honor.

9

small businesses is the standard under the SEQRA,

10

Displacement of

upon -- for displacement of persons.

11

There's four cases on that.

There's the

12

one -- the Concerned Citizens of Wellsville Case v.

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Walmart.

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major case, which is the Court of Appeals case, which

15

that is the Chinese Staff case.

16

which was displacement of -- well, there was persons.

17

Here, we have a community of people that have come and

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built in reliance on the public holding the asset they

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took for public benefit.

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21
22

The Walmart case before that -- there's the

THE COURT:

They all cited on that,

But the community that you allege

is rather small.
MR. STANTON:

It is, it is.

I'm not going

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around the blocky (phonetic).

I'm going by the actual

24

impacted persons, and that's what I have to show, is

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only -- there's a case that's a little broader.

It says

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the fact it impacts a lot of people, but -THE COURT:

Just -- I wonder about the

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slippery slope that any court would create if every time

4

that a project is anticipated that would involve the

5

displacement of a parking lot, that that would give rise

6

to concerned citizens to say, no, we need that parking

7

lot, you can't build X, Y, Z there.

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9

MR. STANTON:

Yeah.

And you really have to

show it affects you different than the public, as a

10

whole, and you have some legitimate interests in it, and

11

it impacts you for this SEQRA aspect of the parking lot

12

displacement.

13

THE COURT:

Right.

Well, let's focus now on

14

the parking lot itself.

15

allege is that this -- the transfer violates the public

16

trust doctrine.

17

switching over to Mr. Melber.

And is a parking lot, as -- we're

18

MR. STANTON:

19

MR. MELBER:

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21

One of the things that you

We can, yeah.
I think we might be, Judge, but

we will do our best to respond to your questions.
THE COURT:

But, I guess my question is, is a

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parking lot a public use?

23

cases on this, I have seen, like, city docks --

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MR. MELBER:

25

THE COURT:

In looking at some of the

Docks city case?
That has been construed as a

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public trust -- or a public use.

2

and of itself, qualified to that?

3

MR. MELBER:

Is a parking lot, in

It is, Judge.

And you don't

4

really have to go any further than the 10 E. Realty case

5

from 2008.

6

a lot of 10 E. Realty cases -- this is -- the Appellate

7

Division case from 2008 is cited in the Respondent's

8

memorandum.

9

a parking lot can be held for public use for a public

10

This is the Appellate Division -- there are

And in that case, the Court recognized that

purpose.

11

And here, if you look at the factual record

12

that we've been able to present the Court with on a very

13

short amount of time, what we know is that this parking

14

lot -- first of all, it's been a parking lot for 55

15

years.

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parking lot.

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It was acquired by the City of Buffalo to be a

We went back to the Common Council's records

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from 1961 and 1963, and there we learned that the Common

19

Council first issued a -- they did a bond issue to raise

20

over $1 million to buy this land and make it a parking

21

lot, and it's been another bond issue for $150,000 to

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construct it into a parking lot.

23

Council records make reference to the fact that the City

24

also commenced a condemnation proceeding in Supreme

25

Court in Erie County to take possession of this land by

And those Common

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eminent domain.
And, as your Honor, I'm sure, knows that the

3

basis for any taking by eminent domain is -- the essence

4

of that is a public use -- a public purpose.

5

wouldn't have been -- wouldn't be allowed.

6

accomplish that through eminent domain and through a

7

condemnation unless you were creating it by -- for a

8

public purpose.

9

It

You couldn't

Beyond that, we know in more recent years

10

that -- this is in the record, Judge -- we know that

11

this parking lot is operated -- the City has chosen --

12

it owns the parking lot, and the City has chosen to

13

operate it through BCAR, which is a not-for-profit

14

entity, you can look at their website and find out that

15

they indicate that their mission is to serve the public,

16

and that's what -- that's what this parking lot does.

17

THE COURT:

What about the matter of 10

18

E. Realty, LLC v. Inc. Village of Valley Stream?

19

that particular case, it's a Second Department case

20

where it deals with a municipal parking lot.

21

parking lot had been a parking lot for 50 years, and it

22

was alleged that the public trust doctrine applied, that

23

you couldn't alienate this property because it had been

24

used for so long as a parking lot.

25

In

The

And in this particular case, the Second

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1

Department says that a parking lot -- the petitioners

2

have cited no authority for the proposition of a parking

3

lot may achieve public trust status through such means,

4

that there was no evidence.

5

Is the evidence that you're referencing to

6

what was just recently received by the Court this

7

morning that demonstrates the -- the history

8

establishing this as a public use?

9

MR. MELBER:

That's exactly it, Judge.

The 10

10

E. Realty case that you're referring to is the same one

11

that I was referring to a minute ago, and that case says

12

that municipal parking -- and I'm reading from it now,

13

Judge -- municipal parking may constitute a public use

14

of property, but in that case, the Court did not find it

15

to be a public use because the petitioners failed to

16

come forward with evidence of that.

17

We've got the evidence here, Judge.

18

addition to everything else that I just mentioned -- I

19

think I told you that we -- there's an indication of the

20

Common Council records that -- that there was a

21

condemnation proceeding.

22

proceeding with the Erie County Clerk's Office.

23

And in

There is a file of that

We've ordered that file, and we haven't

24

received it yet, but in the records that we have been

25

able to provide the Court with already, we can see that,

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from the indexing, that that file includes a petition,

2

and also, then, a stipulation of discontinuance that

3

coincides in time with the Common Council's resolution

4

authorizing and directing the Corporation Counsel to

5

obtain title to the property.

6

THE COURT:

But isn't it -- isn't the virtue

7

of the fact that they're leasing this property -- I

8

mean, the City of Buffalo leased, I believe, the parking

9

lot to BCAR, right?

10

MR. MELBER:

I believe that's right, Judge.

11

THE COURT:

So, isn't, by leasing it, doesn't

12

that demonstrate that it's not a public use?

13

it's a public use, it's there, it's a park, you can't

14

lease a park.

15

MR. MELBER:

16

THE COURT:

17

MR. MELBER:

18

THE COURT:

I mean, if

No.
So, how would you then lease -No, Judge.
By virtue of leasing it to BCAR,

19

how does that not vitiate the entire concept of the

20

public trust?

21

MR. MELBER:

Sure.

It doesn't, Judge, because

22

BCAR is being used by the City.

23

ownership of it, and they're leasing it to BCAR to

24

operate it on a not-for-profit basis.

25

to have it be there as parking for the use of the public

The City is retaining

In other words,

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and not to make money on it, not at profit, not to be

2

put in the hands of any private entity.

3

It's just like -- Judge, I'm sure you're

4

familiar with it -- the City of Buffalo has its parks

5

operated and managed by the Olmstead Parks Conservancy.

6

That doesn't mean they're not a public use or for a

7

public benefit.

8

manages and operates those parks for the use and benefit

9

of the public, and that's what we've got here with this

10

That's a not-for-profit group that

parking lot.

11

THE COURT:

But are you asking this Court to

12

say that every time a parking lot is sold that the state

13

legislature has to act?

14

MR. MELBER:

Not every time, Judge, and it

15

wouldn't have been the case here.

16

other --

17

THE COURT:

18

MR. MELBER:

There are some

It wouldn't move very fast.
-- there are other alternatives

19

that the City could do if they really want to sell this

20

parking lot, recognizing that it is being held for the

21

public use, they could do it under an urban renewal

22

plan.

23

area right now.

24

could also do it just by having a public bidding process

25

and putting it out for public bids so that there was

There doesn't happen to be one that covers this
That would be an alternative.

They

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1

competitive bidding to -- to establish the price of

2

this.

3

And here, Judge, it's really interesting in

4

this record that we know that when this land was

5

acquired in 1963, the City paid over a million dollars

6

for it.

7

under an appraisal.

8

and I had to --

9

In 1963 dollars 55 years later, it's being sold

THE COURT:

We don't have that appraisal yet,

Well, hold on.

There was one

10

issue I wanted to raise, because the City of Buffalo, in

11

their responding papers, said that on the agenda there

12

was a link to this appraiser.

13

appraisal was missing --

14

MR. MELBER:

15

THE COURT:

16

MR. MELBER:

You said that this

I was just about to address that.
They take issue with that.
I was just about to address that,

17

Judge.

18

carefully, because I said, did we miss something?

19

we fail to follow this link and read the appraisal?

20

you read that carefully, they're not -- I don't take it

21

to be saying that there's a link to the appraisal.

22

So -- and I had to read that section very
Did
If

What they're saying is, we have told you in

23

the materials -- and this is -- the reference is to the

24

Common Council agenda item which is available online,

25

and what they're saying is, as I understand it, we've

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1

told you what the result of that appraisal was -- you

2

know, that -- what the figure was.

3

itself, as far as I know, Judge, is not available -- is

4

not reachable by a link, and I have not seen it, and I

5

also don't see it in any of the responding papers from

6

the petitioner.

7

The appraisal

So we don't know what that appraisal was based

8

on.

And because of that, we're not in a position -- and

9

neither -- I think more importantly, we're not in the

10

position to know the quality of that appraisal.

11

more importantly, neither was the Common Council or any

12

of the city bodies who act on this; presumably, some of

13

them have seen it.

14

that appraisal.

15

was, it bumps right up against this alternative where

16

there are provisions under the law for the City to

17

alienate a property held for public use, and that would

18

be to do it by a public bid so that you're getting a

19

full value for it.

20
21

24
25

We don't have

And without knowing what that appraisal

THE COURT:

Okay.

Turning to the SEQRA

issue -- okay --

22
23

We don't have it.

But

MR. MELBER:

And that will be Mr. Stanton,

Judge.
THE COURT:
Mr. Melber.

We will come back to you,

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1

MR. MELBER:

2

THE COURT:

Happy to.
You allege a number of failures of

3

agencies who have failed to comply with the provisions

4

of SEQRA.

5

Because the only ones that I could figure out that had

6

the lead agency role were the City of Buffalo and the

7

planning board.

8
9

My question is:

What agencies are those?

Was there anybody else that --

MR. STANTON:

The planning board acted as the

lead agency, your Honor.

They notified who they

10

notified.

They're the ones that took on the

11

responsibility to do the hard look.

12

to the planning board with regard to any procedural

13

objections.

14

and failure for anybody to take this substantive hard

15

look as required under the HOMES cases -- it's an

16

acronym, H.O.M.E.S. --

With regards to reliance on those mistakes

17

THE COURT:

18

MR. STANTON:

19
20

We're coming back

Okay.
-- that there was then carried

out and nobody took the requisite -THE COURT:

So, who didn't -- who was supposed

21

to be involved in that that didn't?

Because, in reading

22

the Neg Dec, I noticed that the Sewer Authority was

23

involved, the Water Authority was involved, because they

24

dealt with consumption levels, and so I'm just wondering

25

who was not involved.

 20
1

MR. STANTON:

I'm not moving forward in the

2

coordination at this time for this purpose, your Honor.

3

I'm looking at the substantive issue under the SEQRA and

4

everybody relying on it.

5

that we did not make inside of our petition attributing

6

to the City's papers.

7

anybody to take the hard look, your Honor, but the lead

8

agency --

9

THE COURT:

There was also some statements

We are relying on the failure for

But that's what I'm getting at.

10

MR. STANTON:

11

THE COURT:

The --

Hold on, hold on.

12

better if I get to ask my question.

13

take the hard look?

14

MR. STANTON:

15

THE COURT:

16

MR. STANTON:

This works

But, so who didn't

The planning board.

Okay.

And how?

The EAF is the starting process.

17

The EAF, page 8, was supposed to identify any potential

18

significant adverse impact on noise, in particular, and

19

if there was potential adverse impact, they're supposed

20

to speak -- identify.

This was the project sponsor.

21

THE COURT:

But they went through that.

22

MR. STANTON:

No, they didn't.

They did not.

23

There's no -- there's no -- I'm sorry for using the word

24

"no" as a transition, but in this particular case, there

25

is no operation -- there's no look at any kind of

 21
1

operational noise and there's a failure to disclose it.

2

With regard to the required identification of

3

duration and intensity of the noise, which I believe,

4

again, is on page 8 of the EAF, that is left blank.

5

With regard to, then, the hard look which follows the

6

identifications of things in the EAF, there's no

7

analysis of operational noise at all.

8
9

I have a professional affidavit from a
professional engineer, John Schenne, who then says, "I'm

10

familiar with construction projects"; I think he was

11

working with the Army --

12
13
14

THE COURT:

Isn't there a construction project

working on right now in front of your client's building?
MR. STANTON:

On and off.

It's on the side

15

and there are complaints about that as noise, but that's

16

a short term -- that's -- that should be a short term or

17

have an end to it.

18

THE COURT:

Well, here -- I drive past it

19

every day and that's not very short term if that's your

20

definition of short term.

21

quite some time.

22

MR. STANTON:

This has been going on for

And short term, if you look at

23

Cortlandt Park, can be a temporary thing that lasts

24

years, obviously, and becomes permanent.

25

Cortlandt Park case.

That's the Van

 22
1

THE COURT:

2

MR. STANTON:

3
4

Right.
But what I'm getting at is,

short term can be insufficient in and of itself.
THE COURT:

But I mean, I believe that what

5

you alleged as being part of the noise component to this

6

for the beeping noises that when they back up, the HVAC

7

work and the -- I forget what the third one was -- but

8

I'm just wondering how -- well, you go ahead.

9

MR. STANTON:

That's yes.

I'm going to use

10

"yes" as a transitional word this time, your Honor.

11

When I get to operational noise, there's two components

12

of this project.

13

construction phase of this project, and then there's the

14

forever noise.

15

There's a supposed two-year

So the significant noise would be in the

16

two-year construction where it's 110, 120 decibels next

17

to residential property or across from residential

18

property, unbuffered in the sound walls -- no buffers,

19

no specific limitations.

20

forever, is a crazy site plan here.

21

where cars -- where trucks -- 53-foot trucks have to

22

back up along the Oak Street Arterial and back up into a

23

parking space.

24
25

Operational noise, which lasts
There's a site plan

Trucks themselves, by definition -- by beeping
noise, are designed to get attention.

There's standards

 23
1

for assessing noise.

New York State DEC has guidance

2

standards for assessing noise which is references in the

3

Schenne Affidavit.

4

they're intermittent noise, they're high-pitched noise.

5

That's why they get your attention, that's why they

6

annoy people, that's why they wake people up.

7

no hours of operation time limitation on that.

8

also compressor noise.

9

site -- if you don't take things into consideration, you

Those things are at 90 decibels,

There's
There's

If you don't do a controlled

10

don't control things on the front end, that's where you

11

get noise that becomes a nuisance.

12

THE COURT:

But doesn't that just block any

13

type of development whatsoever?

14

MR. STANTON:

15

Not at all.

You can -- there's

engineering, your Honor.

16

THE COURT:

I'm sorry?

17

MR. STANTON:

There's engineering, and SEQRA,

18

at the very end, if you identify a potential significant

19

adverse input -- in fact, you got to mitigate it on the

20

full extent possible.

21

the end.

22

renders the Negative Declaration null and void.

23

That's the substantive duty at

It's the failure to take the hard look which

THE COURT:

Well, if you look at the Negative

24

Declaration and -- I mean, they do go through in

25

painstaking detail -- and I have questions about it for

 24
1

them, which I will get to, but, I mean, couldn't an

2

argument be made that you just simply take issue with

3

the conclusions that they reach?

4

itself, isn't a basis to disturb the Negative

5

Declaration finding?

6

MR. STANTON:

And that, in and of

If they would have a noise

7

impact assessment, they would have identified the

8

daytime -- or construction noise and post-construction

9

operational noise, and if that would have determined

10

there was no potential significant adverse impact, they

11

could have terminated the environmental review process

12

with Negative Declaration.

13

They did not.

If the answer is ECL 8-109 Sub 2 -- if there

14

was any potential significant adverse impact, then they

15

have to proceed to an environmental impact statement.

16

That does add time to a project, your Honor.

17

an endless project, but it does add time.

18

It's not

And under the environmental impact statement,

19

they could say, okay, this is the consequences on the

20

quality of the human environment around it, but the

21

economic benefit outweighs it.

22

THE COURT:

So, you take issue with the

23

thoroughness of the SEQRA process that the City of

24

Buffalo perhaps didn't exhaustedly input?

25

MR. STANTON:

Absolutely.

And I also think

 25
1

they didn't meet the threshold -- the mandatory

2

threshold of 8-109-2, which is a substantive --

3
4

THE COURT:

I'm sorry; what?

You're talking

real fast.

5

MR. STANTON:

I know.

I'm sorry.

There's two

6

issues.

I'm saying they didn't take the hard look

7

because there's potential significant adverse impacts

8

they didn't address.

9

This Neg Dec, there's no showing of how it

10

emerged inside of the records that we have thus far,

11

that's just a piece of paper produced.

12

discussion to put on the record, but there's no showing

13

of looking at two issues inside the Negative

14

Declaration, which is displacement of the small

15

businesses, and there's no showing of operational noise.

16

I don't have any

They did say, because there will be

17

construction noise and it will be short term, that's the

18

only of the three most significant potential adverse

19

impacts that are identified and addressed in there.

20

And then, secondly, there's only one way if

21

you got potential significant adverse impacts to finish

22

the process, that's to do the environmental impact

23

statement, and then say, is this project worth it?

24
25

There's an absolute balancing test they can do
at the end.

They just can't skip the process, that's

 26
1

what all the SEQRA cases, like EFS Ventures, Chinese

2

Staff, all the granddaddies out there, they cover.

3

THE COURT:

Okay.

One of the other things

4

that respondents raise, is that you have to post the

5

bond if you want a continuation of the preliminary

6

injunction.

7

and they support it by the affidavit of Ms. Borgese.

And they calculate it to be $1.6 million,

8

Are your clients prepared to post a bond?

9

MR. STANTON:

A bond, yes, your Honor, but

10

$1.64 billion, that would be a stifling bond, and not

11

reasonable and not supported by the record.

12

There's a division of cases out there, your

13

Honor, which I cited at the end of my brief which has to

14

do with bonds when cases are in the public interest.

15

When you're protecting against the violation of the

16

public trust, many of those cases they say a nominal

17

amount.

18

quickly --

19
20
21

So, I -- if I could grab the brief real

THE COURT:

That's all right.

Believe me, I

read it.
MR. STANTON:

Okay.

And then I have some

22

notes, though.

23

that issue today there.

24

case, I just want to pull my notes on it.

25

I was doing some more poking around on
There was a recent parkland

There's a recent case, and it was reversed on

 27
1

other grounds, but not on this ground, your Honor.

It's

2

called Union Square Park Community Coalition v. New York

3

City Department of Parks and Recreation, 38 Misc 3d

4

1215.

5

protecting the public interest.

And there, there was a $1,000 bond where they're

6

If you got businesses being threatened with

7

displacement, if you've got a threatened breach of the

8

public trust, your Honor, and you're not following the

9

process on how to abandon the public trust, that's where

10

the bond should be weighed.

11

that no one can protect the public interest, then you

12

defeat regress.

13

THE COURT:

If you make the bond so

The TRO that the Court signed was

14

narrowly tailored -- drawn by you, I presume, to prevent

15

the City and the non-municipal respondents from entering

16

into any type of contracts, transferring deeds, et

17

cetera.

18

irreparably harmed by the commencement of the

19

transaction, which is separate and apart from the actual

20

construction, which goes to the merits of your petition.

I just -- I'm wondering how your clients are

21

MR. STANTON:

The abandonment of the resource

22

that they rely upon, your Honor.

23

why -- there was another case which is deja vu all over

24

again, that's a little more clear than this one, which

25

is the casino case.

I mean, that's really

That was an abandonment of the

 28
1

street, pursuant to a specific provision, which allows

2

you to abandon the streets.

3

law, General State Law Section 29, but there, it's

4

taking the asset beyond the public's use and control,

5

which is the issue here --

6

THE COURT:

They used to have their own

But that only -- but that argument

7

only applies if I accept the public trust doctrine

8

argument.

9

MR. STANTON:

10
11

THE COURT:

Yes.

And if I don't, then I think

you're kind of out of luck on that.

12

MR. STANTON:

I -- the public trust record is

13

un-Godly important to us, your Honor.

14

there's one -- one of the businesses who put in an

15

affidavit -- each one verified the affidavit -- but one

16

talks about being booked through 2020 and relying on

17

these parking spots for their valet spaces.

18

group of 45 people who will be displaced from employment

19

on that.

20

It is.

And

That's a

There's three banquet halls in total inside

21

that facility.

So each one of those, all the employees,

22

all the bookings, that's the irreparable harm, the loss

23

of business -- the loss of public businesses, the loss

24

of employment to all the people, that is the threatened

25

harm.

 29
1
2

THE COURT:
further.

All right.

I have nothing

Do you have anything else?

3

MR. STANTON:

I appreciate the questions.

4

MR. MELBER:

Judge, can I just mention one

5

thing that I wanted to make sure we discussed, and that

6

has to do with the factual record again.

7

The respondents argue repeatedly in their

8

papers that our factual record is limited to two

9

affidavits of petitioners.

I want to make sure that

10

everybody's mindful of the fact that we have a very

11

detailed factual petition.

12

all eight of the petitioners, and it -- we know from

13

CPLR 105 Sub U that a verified pleading, by statute,

14

under the CPLR -- a verified pleading can be used in a

15

same form as an affidavit.

16

admissible form.

It can be used just like an affidavit

17

for any purpose.

It's right in the CPLR.

18

The petition was verified by

It's evidentiary proof in

So our factual record includes all of the

19

factual allegations in the verified petition, verified

20

by every single petitioner.

21

affidavit, Mr. Siegel's affidavit, who are subject

22

experts, and it includes three additional factual

23

affidavits that we submitted, with the Order to Show

24

Cause.

25

omitting one more thing, Judge.

It includes Mr. Schenne's

That's our factual record, and -- actually, I'm
Mr. Stanton's

 30
1

affirmations, one from the other day, the other one that

2

was filed last night, those are affirmations of counsel.

3

Generally, the affirmation itself is not evidentiary

4

proof.

5

those two affirmations is a public document, public

6

record and is admissible in evidentiary proof that the

7

Court can take notice of, so it's a very much more

8

robust factual record than the respondents seem willing

9

to acknowledge.

The attachments -- every single attachment to

10

THE COURT:

All right.

11

Go ahead.

12

MR. STANTON:

Thank you.

Okay.

There's a point -- you mentioned

13

two questions on the bond, and I sat down just a little

14

too quickly, also submitting -- it's not a project

15

that's ready to go forward right now.

16

cut approval from New York State DOT --

17

THE COURT:

There's no curb

Although, I thought that

18

Ms. Borgese's affidavit painstakingly details their

19

anticipated schedule, that -- that starts, I think, as

20

soon as August?

21

MR. STANTON:

She would start as soon as she

22

could, your Honor.

They would hear of the public

23

parking -- but they do not have a proper approval for

24

this project to go forward because it requires at least

25

two more governmental approvals.

It requires New York

 31
1

State DOT approval to use Oak Street in the matter of

2

which they intend to have curb cuts on, to wit, the

3

State controls that.

4

it, and that seems like maybe an approval that never

5

comes under this site plan and makes that unworkable.

6

It's the 20,000 cars per day using

There's also NEPA.

It's alleged there's been

7

no commencement of the NEPA, which is the second

8

environmental review.

9

here.

They were not done in tandem

At least there's no evidence that they're done in

10

tandem.

11

any conclusion of the NEPA process.

12

We don't have the record yet.

We don't have

So, as we sit here today, these are not

13

projects that are ready to go forward.

14

want to get started with tearing up the parking lot,

15

starting with Brownfield Tax Credit Program.

16

to get started like everybody wants to get started, but

17

it doesn't have final approvals yet.

18

THE COURT:

All right.

19

MS. PERSICO:

I think they

They want

Ms. Persico?

Good afternoon, your Honor.

If

20

you can't hear me, I will use the microphone, but I'm

21

generally pretty loud, so -- I think that we're --

22

there's kind of a lot of smoke in the ear going on on

23

the petitioners' side here.

24

couple of things, but I feel like it's important to

25

point out to the Court that they're lofty cases that

I want to talk about a

 32
1

have been cited by my esteemed opponent there.

2

yes, they apply to Pine Barrens and forests and natural

3

wonders.

4

We're talking about a parking lot being redeveloped

5

into --

6

Sure,

They do not apply to a parking lot, right?

THE COURT:

Well, it doesn't necessarily say

7

that.

8

case, it says the petitioners have cited no authority

9

for the proposition that a parking lot may achieve

10

I mean, if we're looking at the 10 E. Realty

public trust status through such means.

11

MS. PERSICO:

12

THE COURT:

Your Honor --

Hold on.

That, I think, is an

13

evidentiary issue that a Second Department took with the

14

moving parties there.

15

Now, the most recent affidavit that was

16

submitted this morning, they argue, provides that that

17

evidence that was otherwise required.

18

possible, by demonstrating the historical nature of this

19

property, that it does establish a public use?

20

MS. PERSICO:

So, isn't it

I don't believe that the

21

evidence supports that and I will -- this is why.

So,

22

the 10 E. Realty case does, of course, say that

23

property for a public parking lot can be shown to be

24

dedicated for public use, but it has to be through

25

express provisions in a deed or legislative enactment --

 33
1

and I'm quoting directly from 49 A.D.3d 764 at page 766.

2

And clearly, they -- the Court there -- and I'm

3

quoting -- says they can show that the property was

4

dedicated for public use through express provisions in a

5

deed or legislative enactment.

6

So we have submitted and pointed out to the

7

Court that the deed submitted by petitioner are bereft

8

of any restrictions whatsoever.

9

papers, we quote from the deeds which say that they

And in fact, in our

10

grant to the City of Buffalo all rights, title and use

11

of that property.

12
13

So we know that there is no way that the deed
restriction piece of this can apply to this situation.

14

THE COURT:

So you're saying that because it

15

didn't create an in-perpetuity, that they can alter

16

their plans at any time.

17

MS. PERSICO:

Yes, and in fact, the Carpenter

18

case that we cite says specifically that -- and I will

19

just draw your attention for the record -- I will cite

20

that case.

21

Carpenter v. City of Buffalo 137 Misc 618.

22
23
24
25

It's an old case, but it's still good law,

THE COURT:

That's the 1930 case, Niagara

Falls?
MS. PERSICO:

Right.

And it says

specifically, surely, if the City acquires land for a

 34
1

public use and later finds that the lands are not fitted

2

for that use or such public use is abandoned, they

3

should have the right and the power to sell the lands in

4

question.

5

happy to answer any questions, but I think we're also

6

here relative to the preliminary injunction.

7

But, let's go back to -- not that I'm not

We will, of course -- unless, of course, the

8

Court dismisses the petition in its entirety today,

9

which we would encourage you to do, and we believe that

10

you have grounds to do that, but for the purposes of

11

today, we're here to talk about, really, two things:

12

One, standing; and two, the preliminary injunction.

13

THE COURT:

Well, let's talk about the

14

standing.

15

Committee to Preserve Brighton Beach and Manhattan Beach

16

Incorporated v. Planning Comission, they said close

17

proximity alone will give rise to an inference of an

18

injury.

19

In looking through some of these cases,

And the Gernatt case that counsel cited to,

20

improper procedure, which they do here, they suggest the

21

Court of Appeals does, but that's enough to give

22

somebody standing.

23

And so haven't they alleged enough?

I mean,

24

there's certainly enough allegations that were contained

25

in the affidavits and the papers that would allege that

 35
1

they would be harmed if this sale goes forward.

2

MS. PERSICO:

I understand what you're saying,

3

your Honor, and of course, those cases say that, but

4

this situation doesn't equate to those.

5

I think if you look at -- so, first of all, I

6

have to point out that they're -- although Mr. Melber

7

says that the Court can consider the whole record, I

8

don't know that that's the case in the context of a

9

preliminary injunction.

You are -- you are required to

10

consider what they give you in terms of the preliminary

11

injunction.

12

the application for the preliminary injunction that

13

addresses the transfer of the land, period, right?

14

There's nothing that says, this is why I need a

15

preliminary injunction stopping the transfer of the

16

land.

17

And so, I submit that there is nothing in

THE COURT:

However, I mean, in looking at the

18

Order to Show Cause that I signed -- or Judge Panepinto

19

signed in my absence, I mean, I can entertain an

20

argument about whether or not they would be affected

21

irreparably from the sale to your clients; however, one

22

of the things that I signed as part of the Order to Show

23

Cause, Judge Panepinto signed in my absence, was that

24

the City was prohibited from abandoning or discontinuing

25

the public parking lot at 201 Ellicott Street.

 36
1

They're alleging that if I vacate the TRO

2

today, that tomorrow you're going to be over there --

3

maybe not tomorrow, but soon thereafter, you'd be over

4

there tearing up the parking lot.

5

MS. PERSICO:

6

THE COURT:

Well --

Doesn't that give them standing

7

enough to continue or ask that we continue the temporary

8

injunction?

9

MS. PERSICO:

I don't think so, because -- so,

10

I -- the proof that was in the record with regard to the

11

preliminary injunction application talks about the

12

environmental, if you will, impact of the project

13

itself, right?

14

of no evidentiary value, but the attachments as they are

15

in the preliminary injunction application, right?

16

There's the Stanton affidavit, which is

I'm -- I think it's important that the Court

17

understand and recognize that injunctive relief is

18

significant.

19

shouldn't be granted just because somebody says this

20

might bug me again sometime in the future, right?

21

That's why there is so much case law with regard to

22

standing.

23

the Koessler affidavit, the Ambrose affidavit, and the

24

non-party Siegel affidavit allege that the -- that the

25

project, when it's going and when it's over, the noise

It shouldn't be granted lightly.

It

In the preliminary injunction application,

 37
1

and the decrease in parking are going to be adverse

2

environmental impacts to those two individuals.

3

If you look at that in the context of this

4

particular application, there just isn't the standing

5

for a SEQRA review.

6

review, they're challenging the fact that the planning

7

board didn't take into account the noise during the

8

operation and during the construction.

9

THE COURT:

They're challenging the SEQRA

Is it your argument that they

10

don't have -- his clients don't have standing to

11

challenge the SEQRA determination?

12

MS. PERSICO:

Right.

That's correct, your

13

Honor.

14

pretty clearly.

15

submitted with the preliminary injunction relief from

16

Bill Koessler alleges that classic events at the

17

Lafayette will be harmed economically by those things,

18

and the Mobil Oil case is clear, when you're looking to

19

challenge a SEQRA determination, which is essentially

20

what this is, you have to allege not just an economic

21

harm but some kind of environmental injury.

22

addition to that, you also have to establish that you

23

are suffering an injury that is distinct from the public

24

at large.

25

I think the Mobil Oil case spells that out
The affidavit -- the affidavit

And in

And we cited a case -- I think to the Finger

 38
1

Lakes case where the allegations that the petitioner

2

made in that case -- I'm just going to try and make sure

3

I'm accurate here -- the allegations in that case were

4

almost identical to those made by Ms. Ambrose, inasmuch

5

as she would be impacted by the project with increased

6

noise and dust.

7

And, the Court there said very clearly -- and

8

that is Finger Lakes Zero Waste Coalition v. Martens,

9

Third Department case from 2012, the petitioner --

10

petitioner -- "Roll's affidavit stating that she can

11

presently hear some noise from the landfill does not

12

indicate if, or to what extent, the noise level changed

13

in November of 2010 once work began."

14

"Roll's generalized assertions that the

15

project will increase her exposure to noise and dust are

16

insufficient to demonstrate that she will suffer damages

17

that are distinct from those suffered by the public."

18

I would submit to the Court, I don't see a big

19

difference between what Ms. Ambrose is alleging

20

individually, right -- so let me back up a little bit.

21

Koessler and Ambrose, as managing member of

22

Groom Services, are alleging economic harm based on the

23

decrease in parking and the increase in noise.

24

doesn't get them in the door.

25

standing.

That

It doesn't give them

So Koessler and Classic Events doesn't even

 39
1

make an individual harm argument.

2

ironically complaining about noise, because it is a

3

blow -- hair blow dry salon, so all they do is make

4

noise all day, so I find it difficult to reconcile --

5

THE COURT:

6

MS. PERSICO:

Groom Services,

Inside, though.
Inside, right.

So they make

7

noise inside, but they don't want anybody to make noise

8

outside.

9

makes essentially the same arguments as the petitioner

But additionally, Ms. Ambrose individually

10

in the Finger Lakes case, and the Court there said that

11

you don't -- you haven't made an allegation sufficient

12

to prove that you have something different happening to

13

you than is happening to everybody.

14

the case with regard to the two petitioners who

15

submitted affidavits in connection with the preliminary

16

injunction.

17

restricted, because it's the petitioner's burden to look

18

at what the petitioner submits with that application.

19

There's no -- there isn't even like we incorporate by

20

reference, I don't think.

21

And I think that's

And I do think that the Court is

So, I think you're limited to just looking at

22

what they give you on the face.

23

those petitioners have not, under the Mobil Oil case,

24

been able to avail themselves of standing.

25

THE COURT:

So, I would submit that

So --

One of the trickier things about

 40
1

this was, with respect to the parking lot, was the

2

abandonment argument.

3

the property under 27-5 of the code, that the City could

4

do so if the property was either abandoned or

5

re-appropriated.

6

"abandonment" and "re-appropriated" are nowhere to be

7

found in the code.

8
9

I believe that in order to sell

And oddly enough, the definition of

And you acknowledge that in your responding
papers, and you admit that it wasn't defined, but your

10

argument is, is that if it's left undefined, it gives

11

the Common Council the right to transfer the property.

12

And you say that a narrower definition is against New

13

York State Law, but you don't cite any case law to

14

substantiate that point, and I'm curious, you said it's

15

an important point for the Court to consider is, what is

16

that case law that says that you can't adopt a narrower

17

definition?

18

MS. PERSICO:

Well, I think -- and I'm just

19

going to look at my notes here so I can answer you

20

correctly, but let me talk about that for a minute.

21

27-4 does very clearly of the charter -- I'm just

22

saying -- does very clearly say that after an appraisal,

23

which was done in this case --

24

THE COURT:

25

MS. PERSICO:

Which was done.
No one is --

 41
1
2

THE COURT:

Well, they're saying that it

wasn't because it's not linked on the website.

3

MS. PERSICO:

Well, I think we also have

4

evidence in the record now from the people at the City

5

affirming that, in fact, it was done, and I think maybe

6

they might not have it, but they -- and they might take

7

issue with the appraisal itself, but the procedure was

8

followed, right?

9

that's what this is about, right?

10

The proper procedure was followed, and

THE COURT:

Well, let's presume that it was.

11

I'm not going to get hung up on the appraisal just

12

yet --

13

MS. PERSICO:

14

THE COURT:

So --

But it sounds to me like the City

15

of Buffalo one day said, well, we're no longer going to

16

operate with BCAR, and therefore, it's abandoned.

17

abandoned because we say it's abandoned.

18

MS. PERSICO:

It's

And I think that that's -- you

19

make it sound like that's an unreasonable and irrational

20

response, but I think, if you think about it in the

21

opposite, it makes more sense.

22

project --

23

THE COURT:

So, just like this

I mean, doesn't something have to

24

be abandoned for an extended period of time?

25

it's -- it's a timing issue, I'm wondering.

I mean,

 42
1

MS. PERSICO:

So, if we took that argument a

2

little bit further, I think it would be the inept --

3

the -- I guess inefficient nature of it would become

4

apparent.

5

as a parking lot.

6

being used as a parking lot.

7

pay -- another element that we seem to be missing

8

here -- but this isn't -- I think your Honor hit on it

9

precisely.

So, this is a parking lot.

It's being used

It's not hurting anybody to have it
People go there, they

This isn't a park where people can go and

10

relax, they pull their cars in, pay money to BCAR, and

11

that's how they use it.

12

So, would it make sense, then, to just say

13

arbitrarily, you have to let this parking lot sit sallow

14

for -- I don't know, you pick -- a day, ten days, ten

15

years, ten months?

16

practical context of economic development, it makes more

17

sense if the governing body determines that the next

18

use --

19

THE COURT:

It doesn't make any sense.

In the

But I go back to my original

20

question, which is, you said that New York case law

21

suggests a broader interpretation of the term

22

"abandonment."

23

I'm just wondering what that is.

MS. PERSICO:

24

Honor.

25

here.

And I think we do cite it, your

I'm just going to -- I'm going to pull this out

 43
1

Okay.

So, we cite to Carpenter v. City of

2

Buffalo as support saying where you're interpreting

3

similar provisions, there, Buffalo abandoned the public

4

use of property where previously it had leased the

5

property in the manner of a private land owner and then

6

they just changed their mind.

7

I think I read to the Court the quote from

8

that case, which essentially said, lookit, if they take

9

it in the beginning and think that they're going to use

10

it for X and then -- I don't know what the Common

11

Council minutes are from 1963 -- I read them past my

12

bedtime last night when they were filed.

13

So they determined however many decades later

14

that that is no longer the use that they want to have on

15

that property, should the City be prohibited from doing

16

that?

17

development.

18

still good law.

19

I mean, that flies in the face of economic
And that case, although old, from 1930, is

In addition, we cite Grayson v. The Town of

20

Huntington for the proposition that -- upholding the

21

proposition there where the Town discontinued the prior

22

public use as of the date the Town adopted the

23

resolution devoting the property to alternative public

24

use.

25

But, that still shows you that you can change

 44
1

uses, and there is no definition of how long the

2

abandonment has to happen, because it wouldn't make

3

sense to say that, and it would be arbitrary.

4

You may think abandonment for ten minutes is

5

appropriate, I may think that it has to be 18 months.

6

Who's right about that?

7

shackle the municipality that way.

8

be senseless to determine you have to abandon the

9

property for this much time; why?

10
11
12
13
14
15

I don't know how you could ever
So it would really

What would be the

point of that?
THE COURT:

Is it still being used as a

parking lot today?
MS. PERSICO:

Yes, it is.

Based on the

temporary restraining order issued by the Court.
THE COURT:

So, if I vacate that, it's no

16

longer going to be a parking lot as of Friday when

17

people come to work?

18
19

MS. PERSICO:

Well, it will -- no, there's

notice provisions.

20

THE COURT:

I saw.

21

MS. PERSICO:

Yeah.

I -So people would have

22

notice and people would have an opportunity to go to a

23

different paid parking lot and park, and I think, you

24

know, the decision made by the -- made by the agency --

25

the municipal agency, the planning board, the Common

 45
1

Council, is entitled to great deference.

2

looked very long and hard at the project.

3

People have

As the Court greatly points out, you know, the

4

petitioner just doesn't like the conclusion, and it's

5

not -- you know, we're not talking here about -- we're

6

not trying -- talking about saving an endangered

7

species, we're not talking about saving trees.

8
9

What we're really talking about is a developer
fighting with another developer over a parking lot,

10

because, developer number 1, who, by the way, is the

11

managing member of five of the nine petitioners -- the

12

remainder of the petitioners are either tenants, or

13

business partners of Mr. Termini's.

14
15
16

THE COURT:

Okay.

So --

One is a homeowner, too,

isn't he?
MS. PERSICO:

There is.

I think the guy from

17

the hair salon who lives in the apartment building owned

18

by Rocco and some other people.

19

has a business nexus.

20

So, everybody kind of

There is nothing altruistic about this

21

petition, and so -- not that the Court was misled into

22

thinking that, but what we're really talking about is an

23

economic injury to the petitioners who were involved in

24

the application for a preliminary injunction.

25

all they allege.

That's

That isn't sufficient to give them

 46
1

standing, so I think the Court can dismiss based

2

completely on that argument alone.

3

Second of all, as I have indicated, injunctive

4

relief isn't something that should be granted lightly.

5

It has to be where somebody shows a lack of success on

6

the merits, where there is imminent and irreparable

7

harm, and where the balancing of the equities is in the

8

petitioners' favor.

9

I think we've demonstrated -- and I will run

10

through them quickly, and if you have any questions, I

11

would be happy to answer them, but you know, there's no

12

likelihood of success on the merits here that have been

13

demonstrated, even if you assume the standing, which I

14

think is a stretch, given what we have just on this

15

application, not talking about the merits of the

16

petition.

17

But I think if you look to the likelihood of

18

success on the merits -- so, we -- I think we've covered

19

the public trust 10 E. Realty almost directly on point.

20

There's no deed restrictions, there's no legislative

21

enactment, there's nothing in the compounds of minutes

22

that were submitted, I think improperly, and shouldn't

23

be considered by Court, but clearly the Court has read

24

them, and so I want to be able to address that, just

25

because there was a theoretic condemnation proceeding in

 47
1

1960, or that there was money raised in order to

2

purchase those properties.

3

petitioners in relation to those minutes -- really, I

4

was kind of surprised to read them, in fact, because I

5

thought, oh, these are great because they really help

6

me.

7

The cases cited by the

I think the Kelo Supreme Court case, let's

8

see -- at page -- that's 545 U.S.469, at page 479, I'm

9

quoting directly, "This Court long ago rejected any

10

literal requirement that condemned property be put into

11

use for the general public."

12

So, the Supreme Court has indicated -- so,

13

if -- I guess I'm jumping around a little bit.

If you

14

accept as true that there was condemnation in

15

1960-something of the lands to create this public

16

parking lot, that still doesn't get you to the public

17

trust doctrine, because the Court, as case cited by the

18

petitioners, plainly says, we never meant that condemned

19

property had to be forever used for the general public.

20

So, there's no public trust.

21

have the public trust, as the Court has already

22

indicated, this argument really doesn't go anywhere.

23

So, I think that they don't succeed on the merits if

24

there --

25

THE COURT:

If you don't

If you don't mind, Ms. Persico,

 48
1

all the questions that I've had for you I have had

2

answers to.

3
4

So if you don't mind --

MS. PERSICO:

Oh.

You're telling me to sit

down and be quiet?

5

THE COURT:

No, no.

6

MS. PERSICO:

7

THE COURT:

I would be happy to --

Unless there's something else that

8

you really think I need to hear, other than what I've

9

already asked you, I would like to move to the City of

10
11
12

Buffalo.
MS. PERSICO:
you, your Honor.

Yeah, sure.

No, that's -- thank

Sorry if I was --

13

THE COURT:

No, no, no, no, no.

14

Counselor --

15

MS. LAZARIN:

16

THE COURT:

Yes, your Honor.

One of the arguments that

17

petitioner raised in their papers were that a special

18

use permit was required, and that one was not issued

19

here mostly because of the warehouse that was

20

contemplated by the project.

21

necessary here?

22
23
24
25

MS. LAZARIN:

Was a special use permit

It is not necessary here because

the square footage that will be -THE COURT:

You can use the microphone so

everyone can hear you.

 49
1

MS. LAZARIN:

The square footage that will be

2

utilized by the property for warehouse or storage

3

purposes is less than 10,000 square feet, and as such,

4

pursuant to the Green Code, or the Unified Development

5

Ordinance for the City of Buffalo, a special use permit

6

is not required.

7
8

THE COURT:

I thought it was 13,000 square

feet, the contemplated warehouse?

9

MS. LAZARIN:

There were some division of the

10

numbers, your Honor, that I can lay out for the Court.

11

If we turn our attention to Exhibit 1 of the

12

affidavit of Mr. Sean Hopkins -- I'm sorry; of

13

Ms. Denise Juron-Borgese -- I'm sorry if I totally

14

missed that.

15
16

THE COURT:

I thought it was Borgese,

but that's okay.

17

MS. LAZARIN:

It is, your Honor.

You're

18

correct.

19

food market was 9,280 square feet of real estate, 9,580

20

square feet of commercial wholesale space, and 2,780

21

square feet of office space, and that's why the special

22

use permit is not required.

23

The breakdown of the interior of the fresh

THE COURT:

Okay.

With respect to the parking

24

lot issue that petitioner raises in their affidavit that

25

was filed last night, do you take issue with any of the

 50
1

attachments that were included that, more or less, they

2

argue establishes that this was the designed benefit of

3

the parking lot or of the city when it acquired it in

4

1963, that this would be a parking lot, and therefore,

5

giving rise to the public trust doctrine?

6

MS. LAZARIN:

Actually, your Honor, I do agree

7

that it was acquired in that time for a parking lot, but

8

I don't agree that it is subject to the public trust

9

doctrine.

If you look at the documents for -- that are

10

dated in 1961 from the Common Council, at Exhibit A, to

11

the affirmation of counsel that was submitted yesterday

12

evening, you will see on page 1, second to last

13

photograph, it's very clear that the local finance law

14

applying to this transfer of property -- most of these

15

minutes have to do with the bonds, the percentage of

16

bonds, the pricing, but it very clearly says there that

17

the -- that it is hereby found and determined that the

18

period of probable usefulness of the object or purpose

19

thereof, which is to be a parking lot, is 30 years.

20

And so quite plainly here, the Common Council

21

was contemplating a change of use for this property.

22

And that is the position of the City, whereas, this

23

property was and has been intended for a different use.

24

If you look at the supporting affirmation of --

25

affidavit of Hope Young-Watkins submitted by the City,

 51
1

she lays out plainly at paragraph 10 of her affidavit

2

that the property was subject to a designated developer

3

agreement since 2016.

4

So this property has been contemplated for a

5

different use for some time.

6

happened in 2018.

7

appraisal to be a separate issue.

8

challenge the appraisal, you know, that would be an

9

entirely separate record, but an appraisal was done, and

10

this property has been contemplated for a different use.

11

The initial appraisal

I'm taking the issue with the
If you want to

And just going back to the 1961 documents,

12

your Honor, when petitioners were talking about the fact

13

that condemning a property that then makes it necessary

14

for public use, pursuant to our charter, which is the

15

way that the City does transfer property, Section 2714

16

does outline for condemnation that the council, by

17

two-thirds vote of all members, may authorize

18

condemnation of property necessary for a municipal or a

19

public purpose.

20

And here, we were looking at it for municipal

21

purpose.

Here we have been looking at this property for

22

a different development.

23

eye on this property so that we can appraise it.

24

looked at surrounding market values so that we could

25

appraise it well and bring a development that could be a

Here, we have been keeping our
We had

 52
1

lot more useful and not -- and a lot more beneficial for

2

the greater city than just a parking lot.

3

So I don't agree at all that it is subject to

4

the public trust doctrine.

This is not a parkland of

5

recreational use property.

As such, I do agree that

6

those documents say, yeah, we wanted to use it as a

7

parking lot for 30 years, and we used it for a parking

8

lot for about 20 more.

9

can't now sell it and have it for a different purpose.

10

THE COURT:

That shouldn't mean that we

Turning to the SEQRA Negative

11

Declaration, I think you will agree with me that this is

12

a pretty big project.

13

MS. LAZARIN:

14

THE COURT:

Yes, your Honor.

Yet not one problem with it -- it

15

went through air, ground field, surface water,

16

transportation, noise, flooding, flora/fauna,

17

environment, consistency with community planning,

18

community character, historic and archaeological, energy

19

and public utilities and human health, and not one issue

20

found.

21

scope of this project, that there was no negative

22

impacts at all?

23

I'm just thinking that in terms of the massive

MS. LAZARIN:

Your Honor, that's because the

24

standard is not whether or not there are negative

25

impacts, it's whether or not there are significant

 53
1

adverse environmental impacts.

2

THE COURT:

Right.

But I mean, in reading

3

through it -- I mean, the Negative Declaration was

4

pretty thorough.

5

whether they're significant or not.

6

in reading that, that that was kind of unusual that it

7

didn't identify not one thing, not -- in fact, they even

8

go so far as to explain how this -- you know, like, for

9

example, transportation:

I mean, it didn't identify any issues,
And I just thought,

Well, this is going to be

10

great because we won't have all these people parking

11

there and yet we don't have any more traffic congestion.

12

So it's almost like you identified what could

13

be the problem.

14

issue.

15

and in preparing the Negative Declaration, no issues

16

were found at all.

17

You said, oh, that's not going to be an

I was just taken by the fact that, in concluding

MS. LAZARIN:

Your Honor, I would disagree

18

that no issues were found.

19

environmental impacts.

20

significant enough to require mitigation?

21

significant enough to stop this project?

22

There were plenty of adverse

But the question is, are they
Are they

And so many adverse impacts were identified

23

throughout the Neg Dec, but whether or not -- the

24

decision is whether or not they're significant enough to

25

put a stop to that, and that's where they -- we did find

 54
1

there weren't such that they were significant that the

2

project should be stopped.

3

a really unique issue in Buffalo.

4

impacting a development on an ongoing basis because,

5

pursuant to the Unified Development Ordinance, there is

6

no mandatory required parking lot for the City of

7

Buffalo.

8

development community is going to have a problem with

9

for a number of development projects in the future

And I think that parking is
It's going to be

And so, this is an issue that I think the

10

that's foreseeable, but it is our position that it is

11

our property and we're able to determine --

12

THE COURT:

Do with it what you want?

13

MS. LAZARIN:

Yes.

And you know, I just -- I

14

took a little bit of issue with the petitioner saying

15

that we could do different things with that lot.

16

could put it out to bidding, we could make different

17

provisions.

18

options, that they can move their hair salon or they

19

can, you know, move the --

Well, your Honor, the petitioners also have

20

THE COURT:

21

MS. LAZARIN:

22

THE COURT:

23
24
25

We

They can't move the building.
You're right.

The building has been there since

the early 20th century.
MS. LAZARIN:

You're right.

And we're not

advocating that they move the building.

We're ecstatic

 55
1

that it is in the condition that it is now, and bringing

2

such attention -- positive attention to the City of

3

Buffalo and its redevelopment, but they have options,

4

too.

5

place for them.

I don't see any irreparable, immediate harm taking

6

THE COURT:

Let me ask you this:

Mr. Stanton

7

talks about the hard look and whether or not the lead

8

agency did that hard look.

9

thoroughness of the Negative Declaration, there's no

10

backup.

11

like that.

12

And while I appreciate the

There are no surveys, no reports, or anything

Now, I don't know if that's part of the record

13

that ultimately would have to be provided if we proceed

14

on the petition, but while the Negative Declaration

15

could be considered a self-serving document, I guess the

16

meat in the coconut would be found in the supporting

17

documentation.

18

Why wasn't that provided?

MS. LAZARIN:

Well, ultimately, your Honor, a

19

record would be compiled if we were to proceed on the

20

merits of a case where you would have supporting

21

affidavits from the expert in-house staff from the

22

office of strategic planning.

23

hearing information on the temporary restraining order,

24

but there is much more that goes into the review.

25

is just the -- the end result, which is the final

At this juncture, we are

This

 56
1

determination, and that's what's subject to the Article

2

78 proceeding.

3

Do you want to add --

4

THE COURT:

5

Hold on.

I'll get to you, I'll

get to you.

6

MS. PERSICO:

7

THE COURT:

Okay.

With respect to the abandonment

8

issue -- and I asked Ms. Persico some of these

9

questions -- will you also concede, as Ms. Persico did,

10

that the term "abandoned" is not defined?

11

MS. LAZARIN:

12

THE COURT:

Yes, your Honor.

So, again, how does this become an

13

abandoned property?

It's still being used.

14

still being used because of the TRO, but up until the

15

TRO, it's still being used as a parking lot, so I don't

16

think that any definition would consider it to be

17

abandoned.

18

MS. LAZARIN:

19

THE COURT:

I know it's

Well, your Honor --

And I still don't know what the

20

definition -- I'll give you a minute to respond -- I

21

still don't know what re-appropriate means or is defined

22

as.

23

MS. LAZARIN:

Well, your Honor, pursuant to

24

our charter, the Common Council does have the authority,

25

by resolution, under 27-5 to provide that the interest

 57
1

is abandoned, to provide that it may be sold.

2

is our position that at that juncture, when there is a

3

new use --

4
5

THE COURT:

And so it

So, again, if the City says it's

abandoned, it's abandoned.

6

MS. LAZARIN:

7

THE COURT:

Yes, your Honor.

So even if it was being used as,

8

let's say, for example, more than a parking lot, the

9

City, if it owns the property, could say, no, it's

10

abandoned, and we're going to raze it and put something

11

else on it.

12

MS. LAZARIN:

That is our position, your

13

Honor.

In fact, it's subject to the land disposition

14

agreement which has already been approved by the

15

Council, the property is, in the view of the Council,

16

already abandoned.

17

subject to those individuals that have a contract for

18

parking, one, BCAR.

19

decision and the determination has been made.

20

THE COURT:

The notice provisions do go out

But, at this juncture, that

If the Court, though, finds it's

21

not abandoned, what is the proper way to transfer the

22

property?

23

I found it, no, it wasn't abandoned, then what's the --

24
25

If 27-5 doesn't apply, because I -- let's say

MS. LAZARIN:

Then, your Honor, procedurally,

would be remanded to the Council, and they would seek

 58
1

advice for a determination on the distribution of the

2

property at that time.

3

THE COURT:

Okay.

4

MS. LAZARIN:

5

THE COURT:

Anything else?

No, your Honor.

All right.

Very briefly, I will

6

let everyone take one more go at it, but we've been at

7

this for over an hour, and I think I get most of your

8

arguments and you've done a wonderful job giving me

9

answers to my subsequent questions, but I'll give you

10

one last kick at the --

11

MR. MELBER:

So, Judge, I will be brief, but

12

there are a few things I want to make sure I address.

13

One is the special use permit, which we haven't talked

14

about yet, which I think I can help you with.

15

is this question of abandonment and how we interpret

16

that.

17

there are tools we can bring to that.

18

discuss those.

19

talking about a representation that was made by counsel

20

for the City just now about the project being designated

21

for development and contemplated for some other use

22

going back to 2016.

23

The other

As a matter of statutory interpretation, I think
I would like to

But maybe I want to start, Judge, with

Well, in 2016, Judge, when the City first put

24

this out for proposals under an RFQ -- and Judge, you

25

can find this RFQ at Exhibit H, 2R for the Notice of

 59
1

Petition, which is part of the record for this

2

application.

3

RFQ made it clear that there would have to be a

4

preservation of parking as a part of this reuse of the

5

property, and that's critical here.

6
7
8
9

I want to come back to that, as well.

THE COURT:

The

There is going to be some parking,

though?
MR. MELBER:

There's going to be 30 spaces

for -- where there are now close to 400 spaces, and

10

we're going to replace those 400 spaces with 30 spaces,

11

a market, a warehouse, and a 7-story 200-unit apartment

12

building, which will have no parking for it.

13

obliterating all the parking and adding parking by

14

demand, when we also know it's undisputed --

15

THE COURT:

So we're

But is parking a guarantee?

Is

16

this something that -- I mean, one of the things that I

17

was looking at in one of the cases -- of course, I don't

18

know if I'm going to be able to find it so quickly, but

19

when we talked about the public use doctrine, there's

20

this case that I read, the 4th Department case,

21

regarding The Town of Riga v. The County of Monroe, a

22

1991 case, where Judge Callahan, in his opinion, said --

23

I think it's Judge Callahan -- said, even if the Town

24

could invoke prior public use doctrine, such invocation

25

should yield to the greater public meeting.

If the

 60
1

argument is that the surrounding Buffalo area would

2

benefit more from a mixed-use project, including a

3

grocery store, then -- I kind of lost my train of

4

thought there, but --

5

MR. MELBER:

6

I think I know where you're

going, Judge.

7

THE COURT:

I guess the point that I'm making

8

is, is that can't the Court yield to the greater public

9

need?

10

MR. MELBER:

If all of the processes and the

11

requirements of the law were followed, and the

12

determinations of the decision-makers were --

13

THE COURT:

But Mr. Stanton said that it was

14

un-Godly important for your case to proceed, that

15

this -- that this property be considered protected under

16

the public use doctrines.

17

If the 4th Department, in 1991, said that the

18

Court can yield to the greater public good inarguably

19

here -- I'm not saying it's my argument, but their

20

argument is that the public -- the greater public of the

21

great people of the City of Buffalo would benefit more

22

from a grocery store than a parking lot, adapting Judge

23

Callahan's reasoning, this Court can simply overlook the

24

public use doctrine.

25

MR. MELBER:

So, we don't think you can

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1

overlook the public use doctrine, we think you have to

2

apply it, but we're not saying --

3

THE COURT:

4

MR. MELBER:

You can't overlook -And the law doesn't -- the law

5

doesn't say, and we're not saying that there's no way,

6

given the public use doctrine, that this property could

7

ever be put into some other use other than parking, but

8

there has to be a process, and that process is about

9

abandonment, which we have talked a lot about.

10

Under the respondent's theory, abandonment

11

doesn't mean anything.

12

this statute and the way they want your Honor to

13

interpret it, they want the word "abandonment" to do no

14

work in Section 27-4.

15

Under their interpretation of

Judge, let's look at the language of this

16

statute and use the regular roles of statutory

17

interpretation to figure out what abandonment might mean

18

here.

19

I think that's what we have to do.
And the language is this, Judge, that this

20

provision says that by two-thirds vote of the council,

21

that the sale of the property that's in the public use

22

can be authorized, and I'm going to start quoting now,

23

"of real property acquired by the City for public

24

use" -- I think we have established that, Judge --

25

continuing the quote, "which has not been appropriated

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1

thereto" -- so if it were acquired for a public use, but

2

it wasn't put into that public use, okay, that's some of

3

the surrounding language, we think that's significant --

4

continuing with the quote, "or the use of which for such

5

purpose has been abandoned."

6

So, the first thing is, Judge, let's look at

7

our rules of statutory interpretation.

8

The phrase, "or the use of which for such purpose has

9

been abandoned" comes immediately after "which has not

10

Context, right?

been appropriated thereto."

11

So, if it's acquired for public use and either

12

you never put it into that use or you stopped using it

13

for that use, then two-thirds vote of the council can do

14

it.

15

we should interpret abandonment to mean.

16

That's what the context tells us we should see --

Another common tool of statutory

17

interpretation, Judge -- the plain language.

18

just look at the phrase, "or the use of which for such

19

purpose has been abandoned," past tense.

20

abandoned, or which the council decides to abandon, has

21

been abandoned.

22

So, let's

That is

You asked about timing, there's your clue, and

23

there's your rule of statutory interpretation.

There

24

has to be a time element, and it has to, at a minimum,

25

be in the past tense.

Now, we can talk about how high

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1

is high or how long ago is past, but it has to be in the

2

past tense.

3

And then, lastly, Judge, and maybe most

4

important, and I've already alluded to this, statutory

5

interpretation rules tell us that every part of the

6

statute has to mean something.

7

Under their interpretation that they're offering to the

8

Court, this statute would mean the same thing if you

9

just deleted the words "or the use of which for such

It has to do some work.

10

purpose has been abandoned."

11

way, you just have a two-thirds vote, and you can sell

12

the property when it's in the public use.

13

It would operate the same

We heard, Judge, that -- that our argument is

14

that there -- it runs counter to development.

15

Judge, to a degree, I agree with that.

16

trust doctrine and the public use requirement does

17

create a threshold that has to be met in order for the

18

property to be sold and taken out of the public use and

19

put into a private -- a different private use, and there

20

is a threshold that has to be met.

21
22
23
24
25

And

This public

Judge, I want to talk about the special use
permit because we haven't talked about that yet.
THE COURT:

You told me you were going to be

belief, Mr. Melber.
MR. MELBER:

I'm terrible with being brief,

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1

Judge, and I confess that, but I'm hoping I'm also being

2

helpful.

3

permit.

4

part of the record.

5

affidavit submitted by the respondents of

6

Ms. Juron-Borgese, it's Exhibit 1.

7

You asked about numbers -- so special use
I want you to you look at two exhibits that are
The first is Exhibit 1, to the

Here's a drawing -- and this is where we get

8

the figures that the City argues "are" -- "are," and

9

we're going to talk about verb tense, "are," part of

10

this project, and that's where they represent to the

11

Court that the -- that the warehouse is 9,580 feet, and

12

that the combination of the retail space -- the retail

13

mezzanine and the office are 11,320 feet.

14

Judge, if you look at that exhibit, there's no

15

date on it, there's no indication that it's part of the

16

record, that it was part of what was submitted to the

17

planning board or to the Common Council.

18

part of the agenda item, it doesn't have the hallmarks

19

of having been part of the public record, and Judge,

20

that's because it wasn't.

21

It's not a

This drawing, those figures, those dimensions,

22

those square footages, were not what was presented to

23

the planning board, were not what was acted on by the

24

Common Council, but if we look at the record of what was

25

acted on by the planning board and the Common Council --

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1

and here's the second exhibit I'd like you to look at,

2

Judge.

3

If we look at the -- it's called the

4

Transportation Demand Management Plan, and we've

5

attached that -- that's attached to our papers, it's

6

Exhibit K, to Mr. Stanton's affirmation -- the first

7

affirmation.

8

page 558 because that's the page of the Common Council

9

agenda item which we had accessed online -- that tells

And if you look at page 558, Judge -- it's

10

us that this project, this building, was represented to

11

be -- I'm looking right at the top of that page -- an

12

approximately 20,000-square-foot commercial building

13

that includes a 6,320-square-foot fresh food market.

14

The remainder of the building to be used for a wholesale

15

market with food preparation area as well as an area --

16

as well as storage and back-of-house operation.

17

So, what the City acted on, what was presented

18

and submitted to the planning board and to the council,

19

was a 6,000-foot market, now it's a 9,000-foot market.

20

But you know, half again as large, and Judge, this comes

21

from nowhere.

22

didn't appear in the record anywhere, but now it's being

23

presented here for litigation to argue to you that this

24

is not going to be a 10,000-foot -- excess of

25

10,000-foot warehouse, and I think, Judge, that means

This drawing, as far as we can tell,

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1

that the City and the respondents concede that if it is

2

a 10,000-foot warehouse, and it was a 10,000-foot

3

warehouse that was presented to the planning board and

4

passed by the planning board and the Common Council,

5

then that was done based on a proposal and a plan where

6

there was a 10,000 -- a warehouse in excess of 10,000

7

feet, and they failed to get a special use permit.

8
9

If that's all correct -- and I think that's
what the record shows us -- we got to go back and we got

10

to go get the special use permit, or we got to go back

11

and present this drawing and this plan with these square

12

footages through this process.

13

up after the fact and then submit it to the Court with

14

an affidavit.

15

You can't just make it

And Judge, look very carefully at the

16

affidavit.

If you read the paragraphs that refer to

17

that document, they don't represent to you that that

18

document was ever presented to anybody else or was part

19

of the application, or even -- even this morning, Judge,

20

I listened very carefully.

21

and what the square footage of the warehouse was.

22

the answer was, the warehouse is 9,000-and-some square

23

feet.

24

of the application.

25

a likelihood of success on the merits.

You asked what was presented
And

This has come up afterwards, and it was not part
That's why that cause of action has
That one alone

 67
1
2

establishes that element for us, Judge.
One more thing, if I could, and I don't mean

3

to try the Court's patience.

4

respondents, persists in arguing to the Court that the

5

verified petition is not a part of this application.

6

I could just refer you, Judge, to the Order to Show

7

Cause, where we not only refer to the verified petition,

8

we always -- we say --

9
10
11

THE COURT:

My friend, counsel for the

If

To be honest, I -- while I

appreciate your argument, I think you should move on.
MR. MELBER:

Okay.

So, I want to talk about

12

one just one more thing, then, Judge.

The Brighton

13

Beach case -- I'm sorry, the Finger Lakes case, we heard

14

a quote from that Finger Lakes case where -- and that

15

record is being compared to the record that we have

16

here -- I think what the quote said was that there was

17

nothing presented saying that the noise would increase

18

or that there would be any -- or it wasn't quantified.

19

Judge, we've given you an expert's affidavit

20

that quantifies it, that measures it.

We've given you

21

factual affirmance in the verified petition and in the

22

affidavits that say it's going to be increased if we

23

have these trucks.

24

have this construction noise for a period of two years.

25

That's where the -- that's a part of the irreparable

It's going to be increased if we

 68
1

harm, and that's what distinguishes us from that case.

2

That's all I have, Judge.

3

THE COURT:

4

MS. PERSICO:

5

Thank you.
Yes.

Ms. Persico, briefly.

Thank you, your Honor.

I

hear what you're saying.

6

So, two things.

The special use permit, I

7

think, is kind of a red herring here.

I think they

8

failed to exhaust their administrative remedies.

9

should have asked for a code interpretation if they

They

10

wanted to challenge that issue.

11

we're really getting into the meat of the petition here.

12

But let's go back to --

We're here on the -- so we don't have a

13

record.

We don't have the record of what the City used

14

to make the determination.

15

that the 14,000-square-foot representation made in the

16

petitioners' -- either the petition or the moving papers

17

is not the right number, right?

18

a 10,000 -- there is a 10,000-square-foot threshold.

19

There has been no dispute

And that the -- we need

Nothing that we're talking about rises to that

20

level, A.

21

But again, that -- and I know that goes to the

22

likelihood of success on the merit, and so I just want

23

to run through that quickly.

24
25

B, that isn't just a warehouse back there.

I don't believe that they have established a
likelihood of success on the merits on -- on any of

 69
1

their causes of action.

2

there is simply no -- nothing besides a conclusory

3

allegation by a couple of petitioners that they will be

4

irreparably harmed.

5

think about.

6

submitted by the petitioner -- and they have the burden

7

on this -- that presents the Court with any imminent and

8

irreparable harm that's going to happen.

9

But perhaps more importantly,

And really, that's what we have to

There is nothing in any of the papers

This isn't going to be an expedited

10

proceeding.

11

in front of the Court, you will decide the merits of the

12

case.

13

was lifted today and the preliminary injunction is not

14

granted, here's what's going to happen:

15

notices sent out by virtue of the contract to the

16

parkers at -- that use that lot, right?

17

take some time.

18

We will have a record.

We will come back

If the preliminary injunction -- and if the TRO

There will be

That's going to

There's some time there.

Although there are things that need to happen,

19

such as the closing and the -- in the -- in Denise's

20

affidavit, we identified --

21

THE COURT:

22

MS. PERSICO:

There is.

23

MR. HOPKINS:

Anticipated.

24

MS. PERSICO:

Well, it's anticipated, right.

25

Wasn't there a date set for the -It's on the 9th.

Well, I mean, we're not going to do it unless we can,

 70
1
2

but hopefully we will be able to do that.
But, conversely, nothing is going to happen --

3

nothing, really, is going to happen to any of the

4

petitioners within -- you know, tomorrow, the next day,

5

the day after, the next month.

6

to happen to them.

7

able to park there.

8

parkers, right?

9

for this injunction really are even going to be impacted

10
11

Really, nothing is going

In about a month, people won't be
None of the petitioners are

None of the people who are petitioning

immediately if parking is ceased there.
So, without showing irreparable harm, I don't

12

believe that this Court -- even if you think they're

13

going to succeed on the merits, I don't think that the

14

Court can grant injunctive relief without that very

15

important element.

16

of the equities other than to say they're in our favor.

17

They don't talk about the balancing

And lastly, I think it's very important that

18

we talk about the undertaking, because if, in fact, the

19

Court doesn't lift the TRO and grants the preliminary

20

injunction, we do need -- you know, it's mandatory for

21

there to be an undertaking, although, Mr. Stanton cited

22

a list of cases in his either memorandum of law or

23

petition, those cases were meant to apply, and the

24

nominal $1,000 bond was meant to apply where there is a

25

citizens action group and they're trying to save an

 71
1

endangered species or protect parkland.

2

But they're -- this is really about economic

3

damage to both sides.

4

alleging economic damages primarily, and we will indeed

5

suffer economic damages.

6

inclined to grant the injunction, which we don't believe

7

they are entitled to, we would be requesting a bond in

8

the amount set forth in our papers.

9
10

THE COURT:

And so, the petitioner is

Anything further from you,

Counsel?

11

MS. LAZARIN:

12

THE COURT:

13
14

So we would -- if the Court is

No, your Honor.

All right.

action -- oh, go ahead.
MR. STANTON:

The underlying

Mr. Stanton?
I was going to point out that

15

the Ambrose affidavit and the Koessler affidavit point

16

to the immediate reliance on parking and people that

17

actually park there.

18

THE COURT:

So noted.

All right.

The

19

underlying action involves a sale of property located at

20

201 Ellicott Street owned by the City of Buffalo to the

21

respondent, should plan to and have been approved to

22

erect a mixed use property to include a fresh produce

23

grocery store, warehouse, and housing.

24

is currently a parking lot that has been operated by the

25

Buffalo Civic Auto Ramps is directly across from the

Property which

 72
1

petitioners' building, offices, places of work, and

2

residence.

3

Petitioners objected to transfer on several

4

grounds, including but not limited to, a necessity of

5

the parking lot which they maintain is a public use that

6

is governed by the public trust doctrine that cannot be

7

sold without authorization of the state legislature and

8

to accommodate their guests and patrons.

9

Further, they allege that the City of Buffalo

10

failed to properly transfer the property to the

11

respondent developer and, in doing so, violated the city

12

code.

13

City of Buffalo, failed to properly comply with the

14

requirements of the State Environmental Quality Review

15

Act, SEQRA, which purpose is to assess the environmental

16

impacts of projects on the affected surrounding area and

17

to mitigate the significant environmental impacts of the

18

activity proposed.

19

Also, petitioners allege that the respondent,

Petitioners have moved by way of Notice of

20

Petition, pursuant to Article 78 of the CPLR, seeking to

21

to, inter alia 1) declared null and void the granting of

22

variances to Ciminelli Real Estate Corporation, 2)

23

declare null and void ab initio the granting of a site

24

plan approval to Ciminelli Real Estate and other related

25

entities, and 3), vacating and declaring null and void

 73
1

ab initio all prior determinations related to the

2

determination made by the Planning Board of the City of

3

Buffalo, including but not limited to the SEQRA Negative

4

Declaration voted on by the planning board on or about

5

May 6th, 2019 regarding the property located at 201

6

Ellicott Street in the City of Buffalo.

7

Petitioners also seek a permanent injunction

8

from respondents proceeding with the project on 201

9

Ellicott Street and an order directing respondents to

10

engage in a proper environmental review by strictly

11

complying with the procedural and substantive

12

requirements of SEQRA.

13

On June 24th, 2019, this Court granted an

14

Order to Show Cause filed by petitioners wherein they

15

sought a temporary restraining order preventing the

16

Respondent City from the sale and/or transfer of any

17

portion or the whole of the properties currently

18

operated at a parking lot at 201 Ellicott Street,

19

Buffalo, New York, and told that this matter may come to

20

be fully heard and decided.

21

discontinuance of the public usage of any portion or the

22

whole of the properties currently operated at a parking

23

lot at 201 Ellicott Street, Buffalo, New York, including

24

but not limited to discontinuing any tenancies until

25

this matter may come to be fully heard and decided.

B, the abandonment or

C,

 74
1

executing any deeds or instruments in title or control

2

of the premises commonly known as 201 Ellicott Street

3

until this matter may come to be fully heard and

4

decided.

5

sale, transfer, alteration, or redevelopment of the

6

existing parking lot at 201 Ellicott Street, Buffalo,

7

until the City of Buffalo and its boards and agencies

8

fully comply with the substantive requirements of

9

Article 8 of the New York State's Environmental

10
11

And D, taking any action in furtherance of the

Conservation Law, parenthesis, SEQRA.
The Court, on that date, granted the

12

petitioners that temporary restraining order.

13

heard argument, the Court's decision is as follows.

14

Entitlement to a preliminary injunction requires a

15

showing of, (1), the likelihood of success on the

16

merits, (2), irreparable injury absent the granting of

17

the preliminary injunctive relief, and (C), a balancing

18

of the equities in the movant's favor.

19

Having

See CPLR Section 6301; Nobu Next Door, LLC v.

20

Fine Arts Hous, Incorporated, 4 N.Y.3d 839.

It follows

21

that in order to move for such an injunction,

22

petitioners must have standing.

23

petitioners seek to enjoin the respondents from entering

24

into a contract to which they are not parties.

25

standing, petitioners must show that they have suffered

Here, essentially,

For

 75
1

an injury in fact, distinct from the general public.

2

They have alleged that if this contract is executed,

3

same will permanently interfere with their use of the

4

parking lot, which serves their needs, the project would

5

cause noise, traffic problems, among other injuries.

6

These constitute injury-in-fact and thus have standing

7

to bring this petition.

8
9

Further, close proximity alone may give rise
to an inference of injury enabling the petitioners to

10

challenge the administrative determination.

11

Committee to Preserve Brighton Beach & Manhattan Beach

12

Incorporated v. Planning Comission, 259 A.D.2d 26, and

13

Matter of Gernatt Asphalt Products v. Town of Sardinia,

14

87 N.Y.2d 87 668.

15

That's

However, this Court today will only determine

16

whether the preliminary injunction shall continue, which

17

essentially, enjoins the Respondent City from

18

transferring the property to the Respondent Developer.

19

This Court finds that petitioners have not established

20

irreparable injury if the contracts are executed and the

21

deeds transferred, as there exists no imminent

22

disruption should the sale take place.

23

may be able to demonstrate that the project itself

24

necessitates an injunction, that is not before the Court

25

today.

While they still

As such, the Court is vacating the preliminary

 76
1

injunction.

2

However, this Court must still address the

3

substance of the petition.

As such, the Court will

4

afford the City and the non-municipal respondents time

5

to answer or move to dismiss pursuant to 7803.

6

With respect to oral argument, the Court will

7

go off the record for -- to set a date for argument, as

8

well as a scheduling order for papers to be submitted.

9

(Discussion held off the record.)

10

THE COURT:

Let's go back on the record.

11

Further, respondents shall file their motion to dismiss

12

no later than July 15th.

13

be due no later -- or must be filed no later than August

14

9th and any sur-reply papers shall be filed no later

15

than August 12th.

16

at 2:00 p.m.

17

Court.

18

together with a transcript of the decision.

Any reply papers to that must

Argument will be heard on August 13th

This shall constitute the order of the

The Respondent City shall submit an order

19

Any points of clarification?

20

MR. STANTON:

Yes, your Honor.

On the current

21

parking, you've lifted the stay on the transfer of the

22

land; is there any --

23

THE COURT:

24

MR. STANTON:

25

clarification.

No, I lifted about everything.
That's the point of

 77
1

THE COURT:

The temporary restraining order

2

that was signed as part of the June 24th, 2019 Order to

3

Show Cause, that preliminary injunction is vacated in

4

its entirety, okay?

5

Anything else?

6

MS. PERSICO:

7
8
9
10

Honor.

No.

That was my question, your

Thank you, very much.
THE COURT:

Thank you.

(Whereupon, the proceedings adjourned at 3:46 p.m.)
Certified to be a true and accurate transcript.

11
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LAUREN A. ADAMS, NYRCR, RMR, CRR

13

Official Court Reporter

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