Scott v. City of Buffalo
| Decision Date | 09 November 2006 |
| Docket Number | No. 2006-1189 ,2006-1189 |
| Citation | 16 Misc.3d 259,2006 NY Slip Op 26543,835 N.Y.S.2d 803 |
| Court | New York Supreme Court |
| Parties | KEITH H. SCOTT, SR., et al., Petitioners, v. CITY OF BUFFALO et al., Respondents. |
Lippes & Associates, Buffalo, and Jackson & Jackson, Buffalo (Michael Lee Jackson and Rachel E. Jackson of counsel), for petitioners.
Phillips Lytle LLP, Buffalo (Michael B. Powers, Adam S. Walters and Marc A. Romanowski of counsel), and Nixon Peabody LLP, Buffalo (Laurie Styka Bloom of counsel), for respondents.
Petitioners, Pastor Keith H. Scott, Sr., Dora Richardson, Josephine Rush, John and Shelley McKendry, and Geoffrey D. Butler (hereinafter referred to as petitioners), either live or work along Perry Street in the City of Buffalo, New York. Petitioners live or work within two blocks of nine acres of land purchased by the Seneca Nation of Indians in the fall of 2005 for the development of a class III gaming casino. The nine acres of land owned by the Seneca Nation of Indians in restricted fee status are bounded by Marvin Street, South Park Avenue, Michigan Avenue and Perry Street in the City of Buffalo. The Seneca Nation of Indians (hereinafter referred to as the Nation) is not a party to this CPLR article 78 proceeding.
Since assuming ownership, the Nation has undertaken certain construction, demolition and related development activities to clear the nine-acre site for development as a class III gaming casino. The authority of the Nation to conduct demolition activity within the nine acres owned by it was the subject of injunction proceedings before the court in May 2006. At that time, the court declined to grant a preliminary injunction enjoining the Nation from demolishing a grain mill located on the nine-acre parcel.
Earlier this year, the Nation requested the City of Buffalo to abandon and sell Fulton Street right-of-way (Fulton Street ROW) to it in order to allow fulfillment of development plans for construction of its class III gaming casino. Fulton Street is a public street situate immediately adjacent to the nine acres owned by the Nation. Following a period of protracted negotiation, the City of Buffalo and the Nation entered into an agreement for the sale of Fulton Street ROW for an agreed price of $631,000. Under the terms of the agreement, the City of Buffalo also agreed to provide sewer and water service to the Buffalo Creek Territory and to make available certain emergency services. In consideration of the agreement, the Nation agreed to undertake certain actions, including: spending between $5 million and $7 million making infrastructure improvements to City-owned lands around the Buffalo Creek Territory; integrating the class III gaming casino structure with the surrounding community and building of an urban park; employing approximately 1,000 people at the casino and the grant of a preference to City of Buffalo residents for 50% of these jobs and the recruitment high in unemployment areas; abiding by a policy of trying to have a work force of at least 25% minorities and at least 8% women; marketing the casino beyond the Western New York region; and not acquiring additional property for casino operations.
The agreement between the City and the Nation for the sale of Fulton Street was required, under the Charter of the City of Buffalo, to be approved by a two-thirds vote of the Buffalo Common Council. On October 31, 2006, by a vote of six to three, the Common Council of the City of Buffalo, among other things, adopted a resolution entitled "Abandonment and Sale of Fulton Street and Approval of Proposed Agreement between the City of Buffalo and the Seneca Gaming Corporation, the Seneca Erie Gaming Corporation and the Seneca Nation of Indians." (Lukasiewicz affidavit, exhibit 2.)
In approving the agreement for the sale of Fulton Street, the Common Council, on October 31, 2006, by a vote of six to three, adopted a resolution entitled "Determination of Significance Pursuant to the State Environmental Quality Review Act" for the abandonment and sale of Fulton Street ROW. A copy of this resolution referred to as "Determination of Significance" as well as supporting documentation is attached as exhibit 1 to the Lukasiewicz affidavit. With the approval of the Common Council of the City of Buffalo, the sale of Fulton Street ROW is scheduled for approval by the Buffalo Fiscal Stability Authority on November 9, 2006. Assuming the Buffalo Fiscal Stability Authority approves the sale of Fulton Street ROW by the City of Buffalo to the Nation, the matter will then be referred to the Tribal Council of the Nation for approval. Such action is contemplated on November 9, 2006.
On October 26, 2006, the court issued an order to show cause as to why petitioners should not be granted a preliminary injunction enjoining the respondents from (1) taking any actions toward approval or acting upon the proposed agreement for the sale of Fulton Street ROW between the City of Buffalo and the Nation, Seneca Gaming Corporation, and Seneca Erie Gaming Corporation; (2) enjoining respondents from taking any steps toward the transfer of that property commonly known as Fulton Street between Michigan Avenue and Marvin Street and/or any rights pertinent thereto or easements, authority, permissions to the Nation, Seneca Gaming Corporation, Seneca Erie Gaming Corporation and/or any other body or party until such time as this article 78 proceeding before the court is resolved; and (3) compelling respondents to undertake an appropriate environmental review, including but not limited to, preparation of a complete environmental assessment form, preparation of a draft environmental impact statement (EIS) followed by an appropriate public comment, an issuance of a final environmental impact statement prior to making any findings with regard to the proposed agreement and/or transfer of said Fulton Street ROW.
The matter was returnable before the court on October 30, 2006. On October 30, 2006, respondents filed a motion in response to the order to show cause requesting dismissal of petitioners' motion and sanctions pursuant to 22 NYCRR 130-1.1. The court offered respondents the opportunity to file supplemental papers on or before November 2, 2006. Respondents have filed said supplemental papers, including an affidavit of Alisa Lukasiewicz, Corporation Counsel of the City of Buffalo, and a supplemental memorandum of law. On November 3, 2006, petitioners filed the reply affidavit of Robert Knoer, Esq., and a supplemental memorandum of law. On November 6, 2006, the court heard extensive oral argument on petitioners' motion for a preliminary injunction. Following oral argument, the court reserved decision. For the reasons cited herein, the court denies petitioners' application for a preliminary injunction. The reasons for the court's decision denying petitioners' application for injunctive relief are set forth herein.
Respondents contend that petitioners lack standing to seek State Environmental Quality Review Act (hereinafter referred to as SEQRA) claims because petitioners are not within sufficient "close proximity" to the proposed site, nor do they allege specific environmental injury which is "in a way different from the community at large." (Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 413-414 [1987].)
In Matter of King v County of Monroe (255 AD2d 1003 [4th Dept 1998]), the Court found petitioners had standing to challenge a SEQRA process undertaken by Monroe County where petitioner resided directly across the street from the proposed project and alleged that her property would suffer environmental harm as a result of the project. (Id., citing Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 687 [1996]; Matter of LaDelfa v Village of Mt. Morris, 213 AD2d 1024, 1025 [1995]; see generally Matter of Brighton Residents Against Violence to Children v MW Props., 304 AD2d 53, 56-57 [4th Dept 2003].)
On the record before the court, petitioners reside within two blocks of the Nation's proposed class III gaming casino. In light of the geographic proximity of the petitioners to the nine-acre site of the Nation's proposed class III gaming casino and Fulton Street, this court determines that petitioners have standing to bring the SEQRA claims.
Petitioners attack the "negative declaration" issued by the Common Council on October 31, 2006 in its resolution entitled "Determination of Significance Pursuant to the State Environmental Quality Review Act (SEQRA) for the Abandonment and Sale of Fulton Street and the Proposed Agreement Between the City of Buffalo and the Seneca Gaming Corporation, the Seneca Erie Gaming Corporation and the Seneca Nation of Indians." (Lukasiewicz affidavit, exhibit 1.) Specifically, petitioners maintain the "negative declaration" adopted by the Common Council constituted an impermissible segmented environmental review limited to the sale of Fulton Street which failed to address the class III gaming casino contemplated by the Nation on the adjacent nine acres of land owned by it in the city.
In substance, petitioners maintain that the Common Council performed a segmented environmental review limited to the environmental effect of the sale of Fulton Street without adequately considering the issue of the environmental effect which the Nation's construction of a class III gaming casino would have on them. Petitioners maintain the contemplated class III gaming casino constitutes a Type I action under SEQRA and a comprehensive environmental review of the entire project is required by the City. (6 NYCRR 617.4.) In response to this contention, respondents maintain...
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