The summaries that follow are samples of the cases Art Giacalone has handled for his clients, some “winners” and some “losers.”
1. Challenge to Town of Hamlin’s Wind Energy Law (2008-2009).
An out-of-state “wind farm” developer quietly negotiated land lease agreements in 2006 with some major land owners in the Town of Hamlin (Monroe County, NY). That same year, the Hamlin Town Board amended the town’s zoning law to allow construction and operation of meteorological (MET) towers so that potential wind developers could obtain data relevant to wind speed and direction, and two MET towers were promptly erected. A “Wind Tower Committee” (WTC) was created by the town board to determine if wind towers are in the overall best interest of the Town of Hamlin and to develop proposed regulations accordingly. The nine-member WTC (described by the pro-wind town supervisor as “a balanced committee with open minds”) conducted 13 meetings and gathered and assessed pertinent information prior to issuing a report recommending that industrial-scale wind turbines be located at least 1,500 feet from roads and property lines and 2,640-foot (one-half mile) from residences.
In April 2008, without preparing an environmental impact statement (EIS), the Town Board approved a Wind Energy Facility law that disregarded the WTC’s setback and noise standards and allowed construction of 400-foot wind turbines within 600 feet of property lines and public roads and 1,200 feet of residences. The “Hamlin Preservation Group” [HPG], an unincorporated association of property owners concerned about the adverse impacts of improperly sited industrial wind turbines on the health of nearby residents and the town’s rural character, hired Art Giacalone to challenge the town’s wind law in State Supreme Court. On January 5, 2009, the Hon. David Michael Barry “set aside and annulled” the Town of Hamlin’s wind law, ruling that the town board violated the requirements of the State Environmental Quality Review Act (SEQRA) when it neither took a “hard look” at the relevant areas of environmental concern, nor set forth a “reasoned elaboration” for its determination that the wind energy law would not have a significant impact on the environment.
2. Challenge to Buffalo Planning Board’s Approval of Architecturally-Inappropriate Residence (2007-2008).
Rumsey Lane is a small cul-de-sac development of one-story, relatively modest ranch houses in an area of Buffalo known for its large mansions, art galleries and Olmsted-designed parkways. The Rumsey Lane homes were constructed in the 1950’s with a consistency in scale and size to create a harmonious setting. In June 2007, an individual bought the smallest of the Rumsey Lane lots, demolished the existing 1,465-square-foot ranch, and commenced the process of obtaining “design and site plan” approval for a two-story, 3,500-square-foot, quasi-Gothic residence. In November 2007, prior to Mr. Giacalone’s involvement, the City Planning Board approved the site plan application, with several members expressing the belief that they could not say “No” to the proposed project because it complied with the zoning ordinance’s dimensional requirements. Three families on Rumsey Lane then retained Art Giacalone to bring a State Supreme Court proceeding to stop construction of the approved residence. In January 2008, the Hon. Timothy J. Drury concluded that the Planning Board was “unaware of and/or misinformed as to the scope of its authority pursuant to the Citywide Design and Site Plan regulations and SEQRA” when it approved the plan, and sent the matter back to the board for reconsideration.
Following a new public hearing, the Planning Board once again approved the design and site plan application. Mr. Giacalone brought a second court proceeding, and Justice Drury, describing the proposed residence as a “McMansion” that was totally out of place in a micro-neighborhood of subdued and understated ranches, annulled the site plan approval and ordered the property restored to its pre-construction condition.
3. Challenge to City of Buffalo’s Approval of a Hospital Helipad adjacent to existing residences (2004).
A hospital in a fully developed urban neighborhood applied to the Buffalo Common Council for a permit to place a heliport less than 100 feet from private residences. Rather than conduct a public hearing, as required by the city’s code, and serve as “lead agency” under the SEQRA, the Common Council delegated the public hearing responsibility to its “committee on legislation,” and allowed the City Planning Board to function as “lead agency” to conduct the mandatory environmental review. The Hon. John P. Lane, in a decision reported as Price v. Common Council of City of Buffalo, 773 NYS2d 224 (Supreme Ct., Erie Co. 2004), agreed with the argument asserted by Mr. Giacalone on behalf of nearby residents that the Common Council had violated both the City Code and SEQRA, and remanded the matter so that public health and safety issues could be adequately reviewed. Following a new public hearing and additional investigation into environmental and safety concerns, the helipad was approved, and is now operating.
4. Challenge to Town of Aurora’s grant of real property tax exemption to an upscale retirement community (1999-2001).
NY’s highest court held in 1989 that a retirement community for middle-income elderly is not eligible for a real property tax exemption as a “charitable” use. Despite that ruling, the Town of Aurora granted “charitable” tax-exempt status in 1998 to a proposed $21 million retirement community where residents would be required to pay “entrance fees” ranging from $140,000 to $300,000, and monthly “service fees” ranging from $1,700 to $2,500. Mr. Giacalone was hired by a competing company and a group of nearby residents to challenge the tax exemption in State court. Unfortunately, the courts never reached the question whether the town’s grant of “charitable” status to the upscale project was legal. While the lower court’s 1999 ruling that the petitioners lacked “standing” to raise the tax exemption issue was initially reversed in 2000 by the intermediate appeals court [see Fetzer v. Town Bd. of Town of Aurora, 270 AD2d 804, 705 NYS2d 147 (4th Dept. 2000)], a subsequent decision by the State’s highest court in an unrelated case led the intermediate court to conclude in 2001 that the petitioners lacked standing and could not challenge the tax exemption. [See Fetzer v. Town Bd. of Town of Aurora, 289 AD2d 996, 734 NYS2d 915 (4th Dept. 2001.]
Although the lawsuit brought by Mr. Giacalone was dismissed, the proposed retirement community was never built.
5. Challenge to Town of Alabama’s Rezoning of Farmland for a Stone Quarry (1997).
The Town of Alabama rezoned 182 acres of farmland at the request of Lancaster Stone Products Corporation to allow a stone quarry to be operated on the site. Mr. Giacalone was retained to challenge the rezoning by a family of farmers who had tilled the adjacent acreage since 1919. A court proceeding was commenced in Supreme Court, Genesee County, seeking to nullify the rezoning on SEQRA and other grounds. The town and the mining company argued that the State Mine Land Reclamation Law absolved the town of its obligation under SEQRA to consider the action’s environmental impacts. Hon. J. Dillon disagreed, annulling the rezoning. See Phelps v. Town Board of Town of Alabama, 667 NYS2d 187 (Sup. Ct., Gen. Co. 1997).
6. Challenges to Town of Amherst’s Deer Bait-&-Shoot Program (1996-97).
A group of Amherst residents retained Art Giacalone in 1996, and then again in 1997, to fight the Town’s deer bait-and-shoot program. Mr. Giacalone successfully brought court proceedings in Supreme Court, Erie County, on both occasions, obtaining court orders annulling Amherst’s deer-management program for violating SEQRA’s environmental review process. The first decision, by Justice Barbara Howe, is reported as O’Donnell v. Town Board of Town of Amherst, 656 NYS2d 100 (Sup. Ct., Erie Co. 1997), and holds that the Town’s issuance of a Negative Declaration was irrational because the Town failed to identify how many deer it intended to “harvest.” The second decision, by Justice Frank A. Sedita, Jr., concluded that the bait-and-shoot program must be preceded by an Environmental Impact Statement. At Mr. Giacalone’s request, the Fourth Department subsequently dismissed as moot the Town’s belated effort to appeal J. Sedita’s decision. See O’Donnell v. Town Bd. of Town of Amherst, 262 AD2d 1084, 691 NYS2d 853 (4th Dept. 1999).
7. Special Counsel to Village of East Aurora re Wal-Mart Rezoning (1994-1995).
Mr. Giacalone served as special counsel to the East Aurora Village Board to assist the village during its most controversial and complex rezoning matter, the request by a national developer to rezone a large parcel of land to allow construction of a Wal-Mart shopping center. His tasks included the provision of legal advice during the SEQRA environmental review process and public hearing, preparation of resolutions and other legal documents, and assistance in drafting the village board’s final environmental impact statement and SEQRA findings statement. The proposed rezoning was denied, and the developer threatened, but did not commence, litigation.