Others named in lawsuit against Buffalo, N.Y. hotel proposal

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Image of verified petition/complaint.

Wednesday, April 26, 2006

Buffalo, New York — A copy has been obtained of the lawsuit filed against the City of Buffalo for allegedly fast-tracking a seven million dollar hotel proposal.

The Elmwood Village Hotel is a 72-room, seven-million-dollar hotel proposed by Savarino Construction Services Corporation and designed by architect Karl Frizlen of the Frizlen Group. Its construction would require the demolition of at least five buildings, currently at 1109-1121 Elmwood, which house several shops and residents. Although the properties are "under contract," it is still not known whether Savarino Construction actually owns the buildings. It is believed that Hans Mobius, a resident of Clarence, New York and former Buffalo mayoral candidate, is still the owner. The hotel is expected to be a franchise of the Wyndham Hotels group.

According to official court documents, there are more defendants than previously thought. Documents state that not only Buffalo's Common Council and Planning Board are named in the lawsuit, but also the Mayor of Buffalo, Byron W. Brown, Savarino Construction Services Corporation, Hans J. Mobius and his son Hans S. Mobius owners of the properties at stake, Pano Georgiadis, owner of Pano's Restaurant on Elmwood, and Cendant Corporation, the parent company of Wyndham Hotels are also named in the suit.

According to the lawsuit, during the length of the trial, Savarino Construction along with their employees, Hans Mobius and his son are not allowed to make any alterations or "engage in the physical alteration" of any of the said properties, 1109-1121 Elmwood and 9999 Forest. The suit also states that the owner of 605 Forest, Pano Georgiadis is also to follow the same rule.

The suit also states that Hans Mobius, his son and employees or "agents" are not allowed to "take any step, lawful or otherwise, to terminate [the] petitioners, Nancy Pollina and Patricia Morris," owners of Don Apparel at 1119 Elmwood "tenancies." Although the business is owned by Pollina and Morris, they are without a lease.

Land use and zoning of proposed site of Elmwood Village Hotel, April 2006.

Within the suit it states that the rezoning of the properties 1119-1121 Elmwood and 605 Forest, by the Common Council, from a 'R3' Dwelling District to a C2 commercial zone "constitutes as impermissible 'spot-zoning'" and is "not in accord with a well-considered plan for the development of the community and is null and void." According to the suit the courts of New York have defined spot-zoning as "the process of singling out a small parcel of land for a use classification totally different from that of the surrounding area, for the benefit of the owner of such properties and to the detriment of other owners." The suit also states that the proposed site for the hotel is different from the surrounding properties because none of the zoning classifications, 'EB' [Elmwood Avenue Business District], 'R3' [Dwelling District], 'R1' [One Family District] and 'R2' [Dwelling District], permit the construction and operation of a hotel.

It is alleged that Savarino Construction "failed to utilize forms obtainable from the city clerks office, failed to include an accurate map or survey showing the location of all buildings and structures and failed to include the names and addresses of each of the owners of the properties to be rezoned."

Site plan or zoning referral to Erie County, New York and reply to municipality.

It is also believed that recommendation in regards to [hotel] compatibility, different land uses, traffic studies, community character, population density, relations between other residents and business owners, public convenience, governmental efficiency, and achieving and maintaining a satisfied community, were to be sent to Erie County's Planning agency and was to refer Savarino's rezoning application and site plan to the agency, however; the lawsuit alleges that although a referral was given to Savarino, it "does not appear that the 'full statement of such proposed action' was forwarded to the County [Agency]."

The suit also alleges that the Common Council "failed to wait the 'statutorily-mandated' 30-days after the County's Planning Agency's receipt" of recommendations from the Council. The County's Planning Agency replied to the recommendations, however; the Agency replied on March 27, 2006, just six days after the Council made its recommendations, falling well short of the "statutorily-mandated" thirty days. The Agency's reply however, did not support or oppose the recommendations or hotel proposal.

Public hearings are required to be registered by the City clerk to the City Planning Board, and according to the suit, "no record" of the Public hearing on March 7, presenting the initial proposal to the public, was made within the City's Clerk office or Planning Board.

Comments from Erie County Division of planning on the SEQRA.

The suit also alleges that the Common council and Planning Board also violated the State's Environmental Quality Review Act or SEQRA and the City's Environmental Review Ordinance by allowing the Planning Board to be the "lead agency" instead of the Common Council. A lead agency is an involved agency principally responsible for undertaking or approving an action and therefore responsible for determining whether an Environmental Impact Statement or EIS is needed, according to the SEQRA regulations. The suit also states that the hotel proposal "constitutes an action under the SEQRA" because the project could "affect the environment by changing the use, appearance or condition of any natural resource or structure that requires one or more approvals from an agency or agencies" and that the Common Council and Planning Board are "obliged to comply with both the letter [recommendations] and spirit of the SEQRA review process" which include identifying the areas of environmental concerns and taking a "hard look" at them. The suit also claims that the Common Council has the "sole authority to grant Savarino Construction's rezoning request" and "to approve the special development plan," but it also claims that the Planning Board is "an involved agency" but that it is "clearly subordinate to that of the Common Council" therefore the decision made by both the Council and Planning Board to allow the Planning Board to be the 'lead agency,' is in "violation" of the State's SEQRA and "renders all determinations" made by the Planning Board and Common Council on March 14, 21, and 28, 2006, "void and unauthorized." It goes on to say that the Council "proceeded without or in excess of their jurisdiction, and/or made a determination in violation of lawful procedure, affected by an error of law, and/or in an arbitrary and capricious manner." It also states that unless the requirements of the SEQRA are met, then the petitioners have the right to "seek a temporary restraining order" from the Court if circumstances require it.

The suit also states that a failure to grant a preliminary injunction, through the courts, will result in "irreparable injury" to the petitioners and that the Council and Planing Board have failed to comply with the requirements of the SEQRA and have violated several other state laws and city codes.

So far, Savarino Construction has not responded to any calls or e-mails. District councilman Joseph Golombek also has not responded. Georgiadias was unavailable for comment.

A preliminary hearing is scheduled to take place at 9:30 a.m. on June 8, 2006 in the Supreme Court building at 50 Delaware Avenue in Buffalo, on the 8th floor, part 31.

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