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Wednesday, August 17, 2022
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Injunction Denied


Construction on the Skinnersville Road student-housing complex will continue as scheduled, after a State Supreme Court Justice denied a motion Monday for a preliminary injunction. Amherst resident Rita Forman had requested an injunction to halt construction on the $11 million complex until the underlying lawsuit is resolved.

Forman, a 10-year resident of the Beacon Park Condominiums, with a residence across the street from the Skinnersville site, filed suit against the State University of New York, the University at Buffalo, the UB Foundation and the UB Alumni Association last week alleging that UB's failure to draft an Environmental Impact Statement (EIS) on the Skinnersville townhouses constitutes a violation of the State Environmental Quality Review Act.

Under SEQRA, state agencies are required to compose an EIS if an action is determined to have potentially significant adverse environmental impacts. The SEQRA regulations set out a group of actions, referred to as "Type I" actions, which typically necessitate preparation of an EIS. Specifically, construction of 250 or more new residential units is classified as a Type I action under SEQRA.

While the Skinnersville development, which will contain 116 residential units, falls below the 250-unit threshold, Forman contends that the project is merely one phase in the university's long-term plan for student housing which includes Flickinger Court, and Hadley, South Lake and Flint villages. Taken together, Forman argues, on-campus housing exceeds the SEQRA threshold and as such requires the completion of an EIS.

Forman's complaint alleges the university "purposely, willfully, and illegally" avoided preparing an EIS by "segmenting the construction of student housing into separate smaller projects." Dividing a long-term project into multiple phases to evade the EIS requirement runs counter to the intent of SEQRA.

The petitioner's preliminary statement concludes, "It is clear that the [Skinnersville Road] project is part of a long-term program of student-housing construction, which, in its entirety ... will have a significant impact on the environment. Defendants should not be permitted to subvert the letter and spirit of SEQRA by considering this project independently and as unrelated to other construction" on or near the UB campus.

State Supreme Court Justice Peter J. Notaro said that to obtain an injunction, the petitioner (Forman) needed to demonstrate a likelihood of success on the merits, namely that "SUNY has segmented the development of the housing constructed over the last five years for review purposes." Notaro denied the request for an injunction, concluding that Forman "has little likelihood of success."

The judge went one step further, noting "the court was tempted to treat this as a motion to dismiss" due to the petitioner's lack of evidence.

In his decision, Notaro said UB's various student apartment complexes were not planned together and that each constituted a distinct entity for purposes of SEQRA review, noting the geographic separation of the complexes, the separate financing of the projects and the fact that the construction of each of the university's housing ventures was not contingent upon the existence of the others.

According to Francis Amendola, one of Forman's attorneys, the petitioners presented articles from The Reporter, UB's publicity-engine, which suggested that each of the university's housing initiatives over the last five years were mere phases in a long-term plan - a source Notaro said lacked evidentiary value.

Notaro also concluded that Forman failed to demonstrate irreparable harm if the construction continued, a prerequisite for granting an injunction.

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In her petition, Forman stated "the destruction of the natural habitat at the site on Skinnersville Road will result in irreparable harm to my interests in maintaining this site as a pastoral area for appreciation of the natural environment." She contended that in addition to eliminating vegetation and destroying an "important and thriving wildlife habitat," the construction would also jeopardize the viability of the surrounding landscape, including Bizer Creek and the contiguous wooded area.

The defendants, represented by Hodgson Russ attorneys and the Attorney General of the State of New York, contended that Forman's claim of irreparable harm was based upon speculation, noting she included no supporting evidence on the matter aside from her own conclusion.

The respondents' memorandum said the Skinnersville Road development provided "critically necessary student housing" and, in contrast to the petitioner's description, characterized the construction site as an "open field with a small number of trees, most of which have been preserved during construction." The memo added that Forman's claims of environmental impact are "irresponsibly overstated."

Counsel for the university also argued that Forman misinterpreted SEQRA's prohibition of segmentation. It is inappropriate, they argued, for an agency to divide a single project into multiple pieces to avoid SEQRA requirements. If, for example, SUNY had conducted a separate SEQRA review for each townhouse building or separated the parking lot from the buildings, impermissible segmentation might be present.

According to SUNY, however, the case at hand involves entirely distinct housing projects that must also be considered separately in determining environmental impact. The only connection between the existing student apartment complexes and the Skinnersville Road development is that all five projects provide student housing.

SUNY's attorneys emphasized the geographical and financial independence of each of UB's housing initiatives. None of the existing housing developments, according to the respondents, were planned, designed or constructed at the same time.

"Petitioner's self-serving conclusion that five separate projects are actually a single project has no evidentiary support, and as such cannot be the basis of injunctive relief," stated the memorandum from SUNY.

Despite Monday's setback, Forman and her attorneys plan to pursue the lawsuit to the next level.

"We think that Judge Notaro's decision is wrong, and we are going to appeal it," Amendola said.

Forman said her only hesitation in going forward with legal action would be if the judge required bond. In his decision, Notaro said that if an injunction were granted, the petitioner would have to post bond to compensate for Skinnersville's loss of revenue, in the approximate value of one year's rent or about $1.5 million.

"But I'm going to go as far as I can go without bankrupting myself for life," Forman said.

Judge Notaro granted the respondents until Nov. 1, 2001 to answer Forman's underlying petition.




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