JUDGE CONFRONTS BOTH SIDES IN BRIDGE SUIT
[CITY Edition]
Buffalo News
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Print Media Edition: Financial edition
Buffalo, N.Y.
Aug 13, 1999
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Authors: PATRICK LAKAMP
Pagination: A1
Abstract:
Lawyers for the Peace Bridge Authority and those suing to block it from
building a twin Peace Bridge clashed in a courtroom for the first time
Thursday, but it was the judge who poked the most holes in the legal
arguments.
The Buffalo Olmsted Parks Conservancy and the Episcopal Church Home of
Western New York, as well as the City of Buffalo, all argued the state
Department of Environmental Conservation failed to adequately consider
the impact on the environment when it approved the Peace Bridge
Authority's
application to build a $90 million bridge between Buffalo and Fort
Erie,
Ont.
When a lawyer for the city claimed increased traffic from the bridge
project
would harm Front Park and a nearby neighborhood, [Eugene M.] Fahey
asked
for some proof. He didn't get much.
Copyright Buffalo News Aug 13, 1999
Full Text:
Lawyers for the Peace Bridge Authority and those suing to block it from
building a twin Peace Bridge clashed in a courtroom for the first time
Thursday, but it was the judge who poked the most holes in the legal
arguments.
State Supreme Court Justice Eugene M. Fahey, who seemed to be in
command
of more than 6,500 pages of documents, reports and correspondence in
the
court record, spared neither side.
The Buffalo Olmsted Parks Conservancy and the Episcopal Church Home of
Western New York, as well as the City of Buffalo, all argued the state
Department of Environmental Conservation failed to adequately consider
the impact on the environment when it approved the Peace Bridge
Authority's
application to build a $90 million bridge between Buffalo and Fort
Erie,
Ont.
When a lawyer for the city claimed increased traffic from the bridge
project
would harm Front Park and a nearby neighborhood, Fahey asked for some
proof.
He didn't get much.
The city did not offer any expert testimony or submit any independent
traffic
studies. Instead, the city relied on about 15 pages of comments from
city
officials.
In contrast, the bridge authority submitted thousands of pages of
reports
and studies to buttress the case for building its preferred twin-span
design.
"They've got 6,500 pages, you've got 15 pages," Fahey told Richard
Stanton,
assistant corporation counsel for Buffalo. "I would have thought that
you
would have brought that proof forward."
Meanwhile, lawyers for the authority argued city officials for years
did
not bother to attend planning meetings on the bridge project where they
could have expressed their concerns.
"They had a four-year window to participate, to say what was on their
mind,
and they never did so," said Frank Gaglione, an attorney for the
authority.
Stanton cited a Common Council resolution and a letter from the city
engineer
that raised environmental questions some years ago. But Fahey picked up
on Gaglione's point as he spoke to city lawyers from the bench.
"You're not going to meetings. You're not going to hearings. You're not
coming up with alternative designs. You're not participating in
anything,"
Fahey said. "And then at the last minute, you say you're against the
project.
See a problem here?"
The bridge authority did not escape unscathed from the nearly five-hour
court hearing.
The authority has moved toward building a three-lane bridge that
resembles
the 1927 bridge. The companion span would be built next to the existing
bridge.
The authority has said its plan will expand capacity the quickest and
allow
this region a lucrative share of growing cross-border commerce spurred
by the North American Free Trade Agreement.
Many of Fahey's questions concentrated on the authority's decision to
pursue
separate environmental reviews on a new Peace Bridge and the American
plaza.
The judge called it the key issue.
The Olmsted Conservancy and the Episcopal Home say the authority failed
to conduct a full-blown environmental review for a new bridge. Their
lawsuit
says the authority segmented its environmental impact studies,
conducting
separate ones for the plaza and the new bridge. The authority did not
complete
a final environmental impact statement for the project, but completed a
less-thorough environmental review.
Lawyers for the city, the Olmsted Conservancy and the Episcopal Church
Home -- which operates a nursing home on Rhode Island Street near the
bridge
-- argued that court rulings elsewhere involving much smaller bridge
projects
required full-blown environmental studies. They asked the judge to
require
the Peace Bridge Authority to complete an environmental impact
statement.
"What we're suing for is a real review of the project," Stanton said.
Timothy Hoffman, an assistant attorney general, said DEC officials
"fulfilled
their obligation in every respect."
A new bridge and plaza are "separate actions," Hoffman said.
A new bridge is not needed for a new plaza to be built, and a new
bridge
doesn't automatically require a new plaza, he said.
In fact, the new plaza may never materialize, he said.
Fahey, however, questioned why the authority already has devoted eight
years and a substantial sum of money on a draft environmental impact
statement
for a plaza if it did not intend to build one.
He also questioned the logic of calling a bridge and its plaza
"separate."
The authority's opponents maintained the project should be considered
in
whole, saying cars would have to exit and enter the new bridge through
the plaza.
Fahey, noting a new Peace Bridge and plaza would rank as one of the
most
expensive public works projects in decades, questioned how many other
similar
projects of its scope in New York did not complete an environmental
impact
statement.
"A hundred million here and a hundred million there, and pretty soon
you
have a pretty big project," Fahey said, estimating the cost of the
authority's
project.,
Hoffman agreed that it would be "a big project," to which Fahey
replied:
"That would seem to argue for an (environmental impact statement)."
Fahey did not rule on the suit and said he would spend more time
reviewing
court documents and testimony.
Later in the day Thursday, Fahey turned his attention to the Peace
Bridge
Authority's lawsuit against the city.
In that suit, the authority has asked the court to order the city to
turn
over land easements to the authority. The authority needs the easements
to build the bridge.
The authority says city officials granted the easements in October 1998
but then illegally withheld them after they changed their position on
the
bridge project.
The hearing for that lawsuit is scheduled to continue today.
Fahey told both sides that he would focus on only the legal issues
before
him, not on the merits of alternative bridge designs or the political
debate
that has erupted in Western New York.
"It's not my place to get into that," Fahey said.
But Attorney Kevin P. Gaughan, the area's leading advocate of
regionalism,
said it'll be hard for Fahey not to have an impact on the controversy
surrounding
the bridge project.
"No matter how mightily Judge Fahey attempts to limit the issues,
public
policy will be made by a court of law rather than by concerned
citizens,"
Gaughan said. "In this age of inclusive governance, that's
regrettable."
Caption: "You're not participating in anything. And then at the last
minute,
you say you're against the project. See a problem here?" State Supreme
Court Justice Eugene M. Fahey to city lawyers trying to block a twin
span
Credit: News Staff Reporter