Tag Archives: lawsuits

Ostrowski’s Anti-Pork Lawsuit Dismissed

21 Nov

Libertarian activist and attorney Jim Ostrowski had been spearheading a lawsuit brought against several corporations, Empire State Development, and the state of New York, alleging that state business development incentives were violative of the state constitution. The New York State Court of Appeals put an end to that suit in a decision released today.

§8. 1. The money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking; nor shall the credit of the state be given or loaned to or in aid of any individual, or public or private corporation or association, or private undertaking, but the foregoing provisions shall not apply to any fund or property now held or which may hereafter be held by the state for educational, mental health or mental retardation purposes.

Ostrowski filed suit, and the defendants won a motion to dismiss, which was then reversed on appeal to the Appellate Division. At issue in the fight was whether state would continue to have a right to grant money and incentives to various private entities in order to help businesses and create jobs – it goes to the very heart of contemporary state business development strategies.

The Court explains how constitutionality is not only presumed, but that a violation must be found “beyond reasonable doubt”, because the Court had found as far back as 1976 that it will uphold “public funding programs essential to addressing the problems of modern life, unless such programs are ‘patently illegal'” The current prohibition was devised throughout the 19th century to prevent the state from being required to bail out and insure businesses who have received public monies, and to “insulate the state from the burden of long-term debt”. This is why the state created public benefit corporations and authorities. Case law has repeatedly found that public benefit corporations operate independently from the state, and that the state can grant money to them for lawful public purposes.

Because public benefit corporations are independent from the state, the Court finds that Article VII Section 8(1) does not apply to them gifting or loaning money the state has provided to them.

The Court also affirmed grants of public money to benefit things like stadiums, which may provide a private entity with a monetary benefit but also serves a public purpose. As such, county subsidies to the Bills and Rich Stadium may continue unimpeded by constitutional uncertainty. Justices Pigott and Smith offer dissenting opinions, arguing that longstanding practice does not magically render the unconstitutional, constitutional, and that the system merely rewards the well-connected at society’s expense.

It’s quite an interesting read (if you’re used to reading legal opinions) and, absent a constitutional convention, the end of the road for this particular argument.

Bordeleau v. State//

The Circle of Life

19 Dec

As the Goldman/Fisher anti-Bass Pro lawsuit dies, the Peace Bridge and Casino litigations will be born, or reborn (as the case may be).

So goeth “development” in Buffalo.

It’s Morning in WNY

17 Aug

I think some of you have lost your damned minds. I give up.

Some people took my post about the downtown shootings and their affect as anti-city. Nothing could be further from the truth, and I’m quite frankly astonished that it generated those types of responses.

So instead of further explaining something that I’ve already communicated quite clearly, I’m going to go with…well, with this.

I think it’s quite clear that Canal Side isn’t ever going to get built, nor should it at this point. Oh, we’ll get the street grid and infrastructure, but there won’t be any sort of shopping district built. Shopping, after all, is a bourgeois pursuit exercised mostly by the racist suburbanites and their evil cars and satanic parking. The city is too pure and perfect to permit such things as “fun things to do with families after 5pm on any given day” to happen. Instead, the city ought remain the way it is, with its islands of semitainment districts, inconveniently peppered miles away from each other. It makes perfect sense that businessmen can’t buy a tie downtown, and that even though the festivals prove that people will come to Buffalo in droves given something to do, that we give them nothing to do on a regular basis. Only periodically. That’s quite clearly good enough.

After all, We have loads of nice, walkable places in WNY to go shopping. WIth a broken economy and a shrinking population, we should completely throw in the towel on doing anything meaningful with the waterfront and just leave it as is – which is a marginal, incremental improvement over how it’s looked for 50+ years.

Maybe Tim Tielman’s diesel bus can show people around where the brothels and speakeasies used to be whilst spewing NOx particulate at passersby. (Remember: old diesel bus good, new ULEV cars bad). After all, particulate matter harkens back to Buffalo’s heyday.

And it’s not just the economy or the shrinking population. We should make it crystal clear to the Canadians that they should continue patronizing the malls in the Towns of Niagara and Cheektowaga. We can pretend like they will come to Elmwood because it’s such a unique and significant walkable community, and we should therefore ignore that Toronto has about 30 of those. Of course someone from Oakville (Toronto’s Greenwich, CT) will come to Elmwood to see a smaller, less compelling version of Oakville’s own long, tony, walkable downtown! North Yonge and Queen West. Leslieville, the Annex, Bloor/Yonge, Spadina. Ur-Elmwoods, all.

Keep everything as-is, at this point.

Because with respect to Canal Side, whoever doesn’t get their way is going to sue, and the winning project will be enjoined from moving forward. No matter how open, transparent, inclusive, responsive, or sensitive the ECHDC decides to be – that ECHDC could hold a public hearing at lunchtime, televise it, hold a referendum, hear a thousand people speak, and do it over the course of a decade – but whichever group doesn’t get its way will throw a tantrum and sue. Guaranteed. And the arguments they make will be filled with lies. Guaranteed. Past as prologue.

Why put ourselves through it anymore? Why raise people’s hopes and then have them disappointed again? The answer, clearly, is to not raise hopes anymore. Let’s give up. We should focus our collective civic attention on decrying how the Scajaquada, the 33, the 190, the Skyway, and the bermed Route 5 are what keep the city back. We should demand historical accuracy and recreation, except when it’s inconvenient to do so.

All new projects should only celebrate Buffalo’s past, because no one has a vision for its future worth embracing.

Nostalgia, nostalgia, nostalgia. Nostalgia for lost football seasons and dissolved neighborhoods. Nostalgia for dead architects and the wealthy people who hired them. Nostalgia for 40 year-old mistakes, endlessly rehashing them. Nostalgia for a world without cars, or parking. Nostalgia for a growing, vibrant city that was all about progress and invention. Nostalgia for manufacturing and the toxic particulates that used to turn the sky orange and coat the region with soot. Nostalgia for a time when factories were the highest and best use for the waterfront, and the resulting brownfields that no one has the political will or financial capital to remediate. Nostalgia for everything. It’s natural for a place with loads of history and no future. We like to blame the politicians and the politics. It’s easy to point to this group or that group, but the fact that Buffalo is a nostalgia shack with no vision for the future is your fault – it’s my fault. It’s everyone’s fault.

We’ll lurch from silver bullet project to lawsuit to smaller-scale project to lawsuit to no project. Some will sell their souls out to politics, others to big business, and others to big foundations. The actual number of people who hold what passes for wealth and pursestrings in this town is rather small and intertwined. It’s been thus for years, and it’ll be thus forever. Newcomers are viewed with suspicion – everyone knows their place. No one cares to change it, and no one – not the city, county, or state – has a plan (or the will to plan) to retain or attract people or business, instead relying on the status quo because this is how it was in the good old days of half-million-people Buffalo, so if we just keep everything the same, we’re bound to double the population again. All we need is more tchotchkes and museums.

Turn the whole city into an early-50s version of Old Sturbridge Village, recreating Buffalo’s heyday – the streets of the district will feature five-and-dimes and Studebakers. Everyone will smoke Luckys. We can charge $25 admission.

Maybe the bermed Route 5 really does separate downtown from its waterfront. Maybe if we got rid of it, 50 years of failure will turn around. Maybe if we get rid of the 33, people will flock back to Buffalo regardless of the crime, political dysfunction, and school system that’ll get better just as soon as we throw more money at it, (whilst the brave people who shout “Clarence Pundit!” at me due to their moral superiority of living in the city busily work to make damned sure their kids go to a charter school, away from the hoi polloi). We should take more advice from people who don’t just live in the suburbs, but live hundreds or thousands of miles away.

And this post is one that I wrote after deleting a post about the Ground Zero non-mosque community center, because I think the whole country has gone crazy.

Today, I’m going to have a great day. I hope you do, too.

Money & What It’s Spent On

4 Dec

Jim Heaney discovers that the Buffalo Schools’ legal bills for its ill-fated unilateral switch to a single health insurer for its employees amounts to $252,000.

Gee, for that change, the district could have pursued disciplinary action against McKinley High School Principal Crystal Barton. Williams nixed the idea, saying it would cost too much.

Naturally, the school district was unsuccessful in its attempt to unilaterally changing things, it’s out a quarter of a million dollars, and James Williams and Phil Rumore still aren’t on each other’s Christmas card lists.

Tsk tsk.

"Mother of All Taxpayer Lawsuits"

3 Aug

Jim Ostrowski is representing a large group of plaintiffs who are suing the state, state leadership, and several companies who have (or may) receive state economic development incentives. The defendants include Delphi, American Axle, IBM, and Bass Pro.

Ostrowski argues that this provision of the state constitution prohibits “corporate welfare”:

“The money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking; nor shall the credit of the state be given or loaned to or in aid of any individual, or public or private corporation or association, or private undertaking, but the foregoing provisions shall not apply to any fund or property now held or which may hereafter be held by the state for educational, mental health or mental retardation purposes.”

The Bass Pro example wouldn’t apply because there isn’t a loan or donation being given by the state (or any state-controlled entity) to Bass Pro. The incentive package has to do with tax reduction or elimination – not a handout. But other examples do involve outright grants from the Empire State Development Corporation to private firms to enable some form of expansion with corresponding pledges of job creation.

The Empire State Development Corporation, however, is not named as a defendant in the lawsuit despite the fact that it is the entity that makes the incentives.

By way of a guess, I’d suspect that the creation of the ESDC is the workaround this constitutional prohibition. By using the ESDC, it is not the “state” per se which is giving out the money, but a public benefit corporation (a.k.a. Authority). As we all know, Authorities in New York have been carved out and created in such a way as to best avoid public oversight and scrutiny, so the counterargument will most likely be that the ESDC is a legal creation, and it – not the state – hands out the pork.

But it’ll be interesting to see what happens. Also, as far as I’m aware, the Wendt Foundation is not funding this lawsuit.

Litigation Stew at a Roiling Boil

31 Mar

This reminds me of dealing with Santaland the first in 2005.

We were given very specific parameters in terms of what we could and couldn’t do, lest we make the laid off workers and their union very angry. I made numerous calls to AFSCME, and not one of my calls was ever returned. Frankly, that in and of itself made me want to say, “screw them”. I mean, if you have a beef about it, why do I have to hear it second or third-hand. At least have the decency to tell me over the phone or to my face that you oppose volunteers bringing Santa to Chestnut Ridge.

Mentholatum Corporation wants to donate a playground to the County’s Chestnut Ridge Park at a cost of $23,000. Setting up a playground (and doing cleanup) takes labor, and the problem is that any such labor is supposed to be peformed by union workers, and cannot (under the Taylor Law) be done by volunteers.

AFSCME’s John Orlando has threatened to sue the county if it permits volunteers to do cleanup work at Chestnut Ridge Park. On Hardline with Hardwick yesterday, Collins said, “sue me”.

This is a blockbuster PR opportunity all around.

Mentholatum wins for being a good corporate citizen.

The Collins Administration wins among a large swath of the population because it’s willing to go into combat with the union representing most county workers; a union with which Collins is going to have to negotiate a new contract shortly.

AFSCME will win among the large labor community in WNY, but I suspect that its stance – albeit legally justified – will render it a laughingstock among the community at-large, and will hand Collins a huge PR victory, and a lot of clout going into labor negotiations.

Of course, AFSCME will probably argue that Collins’ violation of the Taylor Law frees it from that same law’s prohibition against striking.

Looks like it’ll be an interesting year, indeed. I just hope Chestnut Ridge Park gets that new playground. Some of the play equipment there contains heiroglyphics, I think.

City to Sue to Fund Demolitions

28 Feb

David Torke over at Fix Buffalo has the scoop. Evidently, the City of Buffalo is suing 36 lenders for the cost of demolishing homes that never make it all the way through the foreclosure process and end up vacant and derelict.

A copy of the City’s pleadings is here. Over 3,000 foreclosures took place within city limits in the last two years, as alleged in the Complaint. There are 10,000 vacant homes that need to be demolished at a cost of between $16,000 and $40,000 each.

This particular lawsuit, however, deals with 57 specific properties which the city alleges are nuisances it is dutybound to abate, and the Complaint is 90-something pages long, so each affected property is tied to each defendant lender.

Good for the city for holding someone responsible for the cost of demolition. But the raw statistics are sobering and put the lie to any talk of a renaissance.

Buffalo isn’t coming back until all of Buffalo is coming back.

And absolutely nothing has happened in the last 4 years to help Buffalo stop the bleeding.

Park Lane Condo Lawsuit: Motions Denied

13 Feb

Looks like Uniland will actually get to start construction on the 68-condo tower later this year, after all.

“It was a very thorough decision,” said Richard Moore, a partner in Magavern Magavern & Grimm LLP, Uniland’s attorney. “The record clearly reflects the determinations that were made.”

The Park Lane Condominiums owners’ association had filed the lawsuit alleging that the Buffalo officials violated several environment review and impact mandates when the project was approved last fall.

“The review of these concerns was thorough, complete and consistent with the requirements set forth in SEQRA (a state environmental quality review),” Dillon wrote in his decision. “The court concludes that the determination of the lead agency was not made in violation of SEQRA nor was it arbitrary and capricious, nor an abuse of discretion.”

Score one for the super-heating, sight line-blocking, sunlight-blocking, and air flow-blocking forces of progress!

Irony & Godwin’s Law on the Waterfront

12 Dec


In 1987, President Ronald Reagan gave a speech in the shadow of the Berlin Wall and the Brandenburg Gate, imploring the General Secretary of the Communist Party of the Soviet Union to “tear down this wall”. Two years later, it came down as a democratic revolution swept over the Warsaw Pact countries within the course of about 5 months.

The Berlin Wall wasn’t just a physical barrier. It was symbolic – it was the very embodiment of the East’s lack of freedom. It prevented its prisoners from visiting the West, where they would certainly come quickly to realize the inferiority of the brutal totalitarian state in which they lived. It was also one of the most brutally fortified de facto international frontiers in existence.

During the Berlin Wall’s 1963 – 1989 history, there were 5,000 escape attempts and 239 people perished trying to escape a communist totalitarian dictatorship and make a better, freer life in the West.

In 2007, a group of non-profits and community activists calling itself the “Waterfront Coalition” drenched itself in offensiveness and irony.

In order to protest one “wall” – the bermed Route 5 – the Waterfront Coalition purchased space on an actual wall. A billboard.


The billboard asks Governor Spitzer to “tear down this wall”. Evidently, it’s referring to Route 5, and not the billboard itself.

In making its point, the Waterfront Coalition invokes Reagan’s 1987 speech.

I will withhold, for now, comment on the substance of the Waterfront Coalition’s 40-minute long press conference where a representative from every. single. member. group. felt compelled to speak. WNYMedia will have video of that up later today.

But to equate Route 5 with the Berlin Wall is one thing and one thing only: an outrage.

Has Route 5 murdered or purged tens of millions of innocent people? Is Route 5 peppered with guardposts from which snipers target hapless pedestrians trying to cross from swamp to weeds? Is the grassy area between Route 5 and the incomprehensible maze that passes for Fuhrmann Boulevard laden with tank traps and mines to prevent progress or murder pedestrians?

To equate a bermed Route 5 – or even the Skyway, for that matter – with the Berlin Wall is absolute and utter bullshit, and those people who thought it would be pithy and on-point should be f*cking ashamed of themselves.

The only thing Route 5 is a barrier to is people’s views of the grain elevators and the Clean Water Act violation that runs around them.

Oh, and incidentally, the Riverkeeper once released this rendering of a “Citizen’s [sic] Vision for the Lakefront”:


Yes, that’s the Skyway and a bermed Route 5 in there.