ROCHESTER, Dec. 7, 2018 — Members of the Seneca Falls Town Board never needed to actually read the resolutions they adopted this past Spring for a sewer line project requiring the use of eminent domain, the town’s special counsel told a panel of appellate justices Thursday.
Instead, the board properly relied on its engineering and legal experts for guidance in picking the Frank J. Ludovico Sculpture Trail along the New York State Canal as the best route for the line, Mark McNamara said.
“While eminent domain is one of the most significant powers of government, this project is the very stuff of responsible constitutional exercise of that power,” McNamara told five justices of the State Appellate Division’s Fourth Department.
But an attorney for the Sculpture Trail, a non-profit group, disagreed, arguing that taking its property by eminent domain would be an arbitrary action that violated the group’s due process rights.
Shelia Chalifoux, the Sculpture Trail’s attorney, said the town board failed to meet its legal obligation when it rubber-stamped lengthy, complicated resolutions after McNamara read extracts of them to board members at a town meeting on May 1.
The sewer line project hadn’t been on the board’s agenda, and board members didn’t have copies of the documents they voted to adopt.
“This was the attorney’s determination, not the board’s,” Chalifoux told the justices. “If we’re going to have attorneys come in with documents, tell the board what to do and have those boards act without even considering it, we don’t need town boards.”
The Sculpture Trail had petitioned the appellate court in June to annul the “determination and findings” resolution McNamara had encouraged them to adopt in May. That resolution argued in favor of locating the sewer line on the Sculpture Trail rather than an alternate route along West Bayard Road, which was the first choice of the state Department of Environmental Conservation.
The Sculpture Trail’s petition also asked the justices to reject the board’s amended declaration that the sewer line project would not have a significant negative impact on the environment.
Acting as “lead agency” for the project under the State Environmental Quality Review Act (SEQRA), the Seneca Falls Town Board was required to take a “hard look” at all relevant environmental issues before declaring that there would be no environmental harm.
But they never even discussed them, Chalifoux argued.
They complied with the law, McNamara countered.“The petitioner confuses ‘comment’ with ‘consideration,’” he told the justices. “You don’t necessarily have to ask questions if you’re satisfied with the information you have.”
One board member, Doug Avery, had objected to voting May 1 on the “determination and findings” resolution before he had a chance to read it.
“I don’t see how we can move forward with something this important until we’ve had a chance to talk, we’ve had a chance to see that document,” Avery said, according to a transcript of the May hearing. He was the only ‘no’ vote against the resolution.
McNamara noted that Seneca Falls and its engineering firm, Barton & Loguidice, had been exploring ways to improve the town’s aged sewer system for at least three years.
“The core purpose of the project is one of health and safety,” McNamara wrote in a court brief filed in September in response to Chalifoux’s initial petition. “Specifically, the project will upgrade the aging Kingdom Road pump station and deteriorating sewer system infrastructure which has experienced multiple significant failures in recent years.”
The key feature is a 4,600-foot forced main sewer line that would require an easement 20 feet wide.
The alternate route, preferred by the DEC but rejected by Barton & Loguidice, runs through a residential area along West Bayard Street. Both routes run south of the canal.
The engineering firm concluded that the Sculpture Trail would be the cheaper option — $1,743,000 versus $2.451,000 — and that it would require fewer easements. It also asserted that it would require cutting fewer trees and would take less time to complete.
But in each case, Chalifoux claimed, supporting data was skimpy or non-existent.
According to an affidavit of a Rochester engineer who studied the two sewer line options, the Sculpture Trail route would be more — not less — expensive, require more tree cutting and more easements than the Bayard Street line.
Thomas G. Peaslee wrote that the Barton & Loguidice analysis was flawed in that it failed to include engineering plans or reports for the two routes.
“From an engineer’s perspective,” Peaslee wrote, “it is difficult to understand how any analysis could be made (under SEQRA) or an analysis as two which of two routes should be selected based on cost, loss of trees or number of easements necessary without engineering reports or plans.”
Although three of the five appellate justices raised questions Thursday about the town’s obligation to take a “hard look” at adverse environmental impacts under SEQRA, they did not tip their hands on how they were likely to rule on the Sculpture Trail’s petition.
The ‘hard look’ requirement proved to be central to a separate Seneca Falls legal matter last year. An acting Ontario County Supreme Court judge annulled a local law that effectively extended the life of the Seneca Meadows landfill because the board had failed to meet that standard.
In the Sculpture Trail’s June petition, Chalifoux had argued that the town “appears to be under pressure from big corporations, outside attorneys and the town’s engineers … to push projects forward at the expense of municipal procedure.”
The petition also asserted that the purpose of the proposed sewer line under the Sculpture Trail “appears to be to transport leachate from Seneca Meadows Landfill in Waterloo and sewage from the del Lago Casino in Tyre” to the town’s wastewater treatment plant.
In his response brief, McNamara wrote that leachate from the landfill and sewage from the casino would have “no impact” on the plant “since the flow will still be substantially below the capacity of the treatment plant.”
The town hired McNamara, a Buffalo attorney with the firm Barclay Damon, as its special counsel on the sewer line matter because of his expertise in eminent domain law.
His hiring stirred controversy when it was revealed that the town was paying him $430 per hour while also paying the full salary and benefits to the town’s regular attorney, David Lee Foster.
To be clear—this sewer line has nothing to do with upgrading our deteriorating sewer infrastructure. It is a separate line designed only to carry sewer and leachate from businesses in Junius, Tyre and most important Seneca Meadows inc. it will not carry sewage for the town of SF nor will it impact the system which has experienced significant failures in recent years