JUDGE DEALS PEACE BRIDGE AUTHORITY SETBACK SINGLE SPAN BACKERS GAIN

SOME

LEVERAGE

[FINAL Edition]

Buffalo News

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Print Media Edition: Financial edition

Buffalo, N.Y.

Oct 16, 1999

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Authors: PATRICK LAKAMP

Pagination: A1

Personal Names: Gaglione, Frank

Abstract:

In saying the city can keep its property easements on the banks of the

Niagara River, State Supreme Court Justice Eugene M. Fahey left the

authority

nowhere else to turn but to the independent bodies now evaluating the

authority's

twin-span design and alternatives.

Fahey urged the city and the bridge authority to settle their

differences

within three months and told them to include the Buffalo Olmsted Parks

Conservancy and the Episcopal Church Home of Western New York in any

deal.

While the city and bridge authority earlier this week found a way to

work

out their differences outside the courtroom, their agreement did not

include

the two other groups suing to stop the authority from building a twin

span,

said Guy J. Agostinelli, the attorney representing the parks

conservancy

and the nursing home.

Full Text:

A judge's decision Friday is a setback for the Peace Bridge Authority

and

gives proponents of a dramatic single bridge more leverage to press for

the kind of river crossing and plaza they want.

In saying the city can keep its property easements on the banks of the

Niagara River, State Supreme Court Justice Eugene M. Fahey left the

authority

nowhere else to turn but to the independent bodies now evaluating the

authority's

twin-span design and alternatives.

It's the second development this week that pushes the decision on what

kind of bridge to build further away from the authority and courts and

into the public arena.

Fahey urged the city and the bridge authority to settle their

differences

within three months and told them to include the Buffalo Olmsted Parks

Conservancy and the Episcopal Church Home of Western New York in any

deal.

"They have to be involved," Fahey said.

Otherwise, Fahey said he would rule on Jan. 26 on the remaining lawsuit

involving the environmental challenge to the authority's twin- span

plan.

Such a ruling could delay the start of bridge construction for years,

said.

"That's the deadline," Fahey said. "I can't be more clear. There's

nothing

to resolve disputes like deadlines."

While the city and bridge authority earlier this week found a way to

work

out their differences outside the courtroom, their agreement did not

include

the two other groups suing to stop the authority from building a twin

span,

said Guy J. Agostinelli, the attorney representing the parks

conservancy

and the nursing home.

Representatives from the parks conservancy and Episcopal Church Home

said

their voices against the authority's twin-span plan now will carry more

influence.

"We objected a year and a half ago but our objections were dismissed

then,"

said Edward C. Weeks, president and chief executive officer of

Episcopal

Church Home. "I can assure you they won't be dismissed this time."

More than before, the Buffalo Olmsted Parks Conservancy is "a party to

reckon with," said Andrea Schillaci, chairwoman of the conservancy.

"The

judge was quite clear on that point."

The conservancy wants a plan that moves the bridge out of Front Park.

Buffalo Corporation Counsel Michael B. Risman and Assistant Corporation

Counsel Richard Stanton, who successfully defended the city against the

authority's lawsuit, told the judge the city would work to include the

two groups into a settlement with the authority.

Frank Gaglione, a lawyer representing the Peace Bridge Authority,

called

the judge's ruling moot, for the most part, because of the breakthrough

agreement reached earlier this week between the city and the authority.

Gaglione said the authority would appeal Friday's ruling on the

easements

as a precaution, but he said he doesn't expect the appeal to be

pursued.

Mayor Masiello, Peace Bridge Authority Chairman John Lopinski and other

community leaders announced an agreement on Wednesday that creates a

process

to decide what kind of bridge to build.

As part of the deal, the city and the authority agreed to accept the

recommendation

of an independent binational review panel and a public consensus panel

that will look at alternative bridge designs and recommend one in

January.

So if the binational panel recommended a twin span, and that

recommendation

was backed by the Public Consensus Review Panel, Masiello is committed

to securing easements for the twin span.

Likewise, if the panels recommend another design, the authority has

agreed

to pursue that recommendation.

Fahey commended the city and the authority for the breakthrough. But

Friday's

ruling will loom large if the city's and authority's agreement falls

apart.

The bridge authority had filed a lawsuit against the city in June,

asking

the State Supreme Court to order the city to turn over two easements

needed

for construction of a twin bridge across the Niagara River. The

authority

needs the easements if it's ever to build a companion span to the Peace

Bridge.

The authority's lawyer argued that city officials granted the easements

in October 1998 but then illegally withheld them after they changed

their

position on the bridge project.

The Common Council last year passed a resolution authorizing Masiello

sign easement agreements with the bridge authority, contingent on two

city

agencies' approval.

The mayor signed the resolution a week later.

The city agencies eventually approved conveying the easements after

conducting

preliminary negotiations with the bridge authority.

But after community opposition to the twin-span design began to build,

the mayor refused to sign the easement agreement.

The authority said the mayor was obligated to sign the easement

agreement.

But Fahey called the mayor's decision a "lawful act, within the

exercise

of his discretion."

The mayor's refusal to sign "meant the agreement between the city and

the

Peace Bridge Authority never became legally binding," Fahey said in his

ruling. "There is no enforceable agreement."

The judge did not render a final opinion on the other lawsuit before

him,

but he turned aside a couple of objections made by the bridge

authority.

The parks conservancy and nursing home had joined the city in a lawsuit

contending the state Department of Environmental Conservation failed to

adequately consider the environmental impact when it approved the Peace

Bridge Authority's plan to build a $90 million bridge between Buffalo

and

Fort Erie, Ont.

Fahey repeated what he said in August, during oral arguments, that he

preferred

to see a settlement rather prolonged court battle.

The authority challenged whether the parks conservancy and nursing home

could challenge the DEC review merely because the Front Park and the

nursing

home are adjacent to the bridge and plaza. Fahey ruled they met the

test

to gain the right to sue.

Caption: "There's nothing to resolve disputes like deadlines." State

Supreme

Court Justice Eugene M. Fahey on resolving the batlle over the Peace

Bridge

Credit: News Staff Reporter