WJBT proposed expansion: Village of Lewiston headed to courtby jmaloni
by Joshua Maloni
The Village of Lewiston will begin the new year in a familiar place: New York State Supreme Court.
Lewiston businessman Jerome Williams, and Lewiston Management Group, a limited liability company he manages, filed an Article 78 lawsuit Monday against the municipality's Board of Trustees and Niagara Gorge Jet Boating Ltd. (aka Whirlpool Jet Boat Tours). Williams is contesting the board's Nov. 15 decision to deed over a 197.23-foot-long parcel of land to WJBT for the sum of $1.
The lawsuit seeks to nullify what it describes as an "illegal transfer" of property. It presents three causes for such an action.
The first is an alleged constitutional violation. "By transferring the Property to Jet Boat," the lawsuit reads, "the Village violated the Gift and Loan clause of the New York State Constitution, which provides that no village shall give property to or in aid of any individual, private corporation or association (taken from Article VIII, Section 1, of the state constitution)."
It continues, "The transfer of the Property from the Village to Jet Boat constitutes an illegal gift.
"The nominal sum of $1.00 paid to the Village by Jet Boat for the (1,966-square-foot) property is not valuable consideration."
The second cause of action is an alleged public trust doctrine violation.
"The Village may not permit property held for public use to be diverted into possession or use exclusively private without authorization from the State Legislature," it reads.
Trustees did not submit the land transfer to the State Legislature for approval.
Cause No. 2 continues, "immediately prior to the Village's transfer of the Property to Jet Boat, the Village held the Property for public use.
"The Village has diverted the Property into the possession of Jet Boat, a private corporation, in contravention of lawful procedure and in violation of the public trust doctrine."
The third and final cause of action alleges trustees violated general municipal law.
"The official act of the Village Board adopting the resolution concerning transfer of the Property to Jet Boat constitutes waste of public property and imperils the public interest of enjoyment, use and protection of the waterfront in violation of General Municipal Law §51."
Williams' lawsuit is rooted in the Local Waterfront Revitalization Program, which was adopted by the Village of Lewiston in 1989, and approved at the state and national level in 1991.
In part III-17 of the LWRP, the plan reads, "Given the limited availability in the lower Niagara River of public facilities providing specific water-related recreational activities and the limited opportunities for developing such facilities to meet an increasing demand, access to publicly-owned lands adjacent to the river's edge should be provided, whenever practicable, for activities and pursuits which require only minimal facilities for their enjoyment. Where access to such lands cannot be provided or is not needed at this time, such lands shall nonetheless be retained in public ownership to ensure future opportunities for providing public access and/or developing needed public recreational facilities."
Now, at Monday's Village of Lewiston Planning Board meeting, Edward Jesella, counsel for the municipality and its board members, issued a statement that read: "All actions taken to date by the Village Board, the Zoning Board of Appeals and the Planning Board are within the legal parameters of the Planning and Zoning Regulations and are not arbitrary, capricious or unconscionable and are supported by the substantive evidence that has been presented.
"Furthermore, the applicant's request falls within the guidelines of the Local Waterfront Revitalization Program and is consistent with its revitalization plan."
Niagara Falls attorney John Bartolomei, who represents WJBT and its president, John Kinney, said Williams has "misquoted badly" the LWRP. He said the waterfront plan's "purpose was to encourage and attract private investment. ... To increase public access to the Niagara River."
Moreover, in written correspondence to the Village of Lewiston, Renee Parsons, a coastal resources specialist with the state Department of State, said the proposed jet boat headquarters expansion was in keeping with the LWRP.
"Thank you for sending the Whirlpool Jetboat Tours proposed renovation plans and photos," she wrote. "As you know, new development (within) the waterfront area needs to be consistent with the Village's LWRP. That is, a new project cannot impair or negatively impact waterfront resources, or diminish the objectives or purposes of the LWRP policies. From the information that you sent me, it appears that this project will further LWRP Policy 1 by enhancing an existing water-dependent use, and Policy 25B by improving an existing structure and enhancing the overall visual quality.
"The proposal also appears to have considered the existing public access, which is important. The project proposal should not diminish or block public access to the waterfront, i.e., the existing road/pedestrian pathway should remain open. If possible, the project should enhance or increase public access."
As of press time, no judge is assigned to preside over the Article 78 hearing, and no court date has been selected.
Planning Board Approves Expansion Concept
At the Planning Board meeting, members unanimously approved the first official submission presented by WJBT. This action means the board conceptually approves of the expansion plan, which calls for a two-story, 2,700-foot addition to Water Street Landing, the U.S. home of WJBT.
Before the board would consider final approval, members said they want to see some revisions to the plan (including bathroom locations, outside lighting, green space, roof pitching, color and siding samples).
Moreover, the proposal needs approval from the Niagara County Planning Board (meeting Monday) before the Village of Lewiston Board of Trustees could sign off on it.
The Planning Board also approved combining WJBT lots five and six (which includes the deeded parcel) into one taxable lot. Members called the resubdivision "housekeeping," and said municipal law prohibits building a project across property lines.
Williams questioned how the board could move forward in light of his lawsuit.
"I don't know how we move ahead with a planning meeting ... when we filed a suit believing that it was an unconstitutional gift and your waterfront development program doesn't allow for it," he said. "I don't know how, today, we move through this motion until we know that it's right or not."
"Why don't we wait until we know if it's his (property)?" Williams asked.
Giusiana said his board was "acting on instructions from our legal counsel saying that we can interpret that as property that has been conveyed, and that we can amalgamate it into the larger whole. Our board is acting on legal counsel's instructions."
A Village Divided
About 125 people attended the Planning Board meeting, which was held in the Red Brick Municipal Building gymnasium. It appeared as if the audience was split on the topic, with one half cheering when anti-jet boat sentiment was raised, and the other applauding when the tourism company was defended.
"A lot of people are using this as a platform to attack Whirlpool Jet Boat. ... If we shut down all tourist attractions, all of the things that happen here like Whirlpool Jet Boat, then our taxes are going to go up - and go up a lot," said village resident and Artpark & Co. President George Osborne. "I didn't move here to get higher taxes."
He said the village benefits from sales and property taxes generated by WJBT.
"The addition has zero impact on the environment," Osborne said. "I really, really don't understand what everybody is opposed to."
Former Village of Lewiston Mayor Bill Geiben said Kinney is a good community neighbor. He said WJBT contributes to festivals, charity drives and auctions.
"I support the project - I support John Kinney - and I hope he continues to be successful," Geiben said.
Lewiston resident Paul Saya described the jet boats as a noisy nuisance.
"I can't sit in my yard and have a conversation," he said.
The bigger problem, he continued, is "every time I come to these meetings, we're changing the laws, we're changing the rules ... for businessmen."
Williams asked where it all ends.
"Are we coming back in another year to expand it?" he said. "It's going to force and it's going to push the public out. And it's going to allow the tourism in."
Ultimately, Giusiana said the meeting was "about the physical addition to the building, itself, on the parcel that is on Water Street, and not the operation of the boats, specifically, in the water."
The Planning Board's next scheduled meeting is Tuesday, Jan. 10, 2011, at 6:30 p.m. at the Red Brick. At that time, it is possible the board could approve the expansion plan - though the same could be said of all future Planning Board meetings.
As of now, the Village of Lewiston is moving forward as if the lawsuit hadn't been filed. The Village Board is not expected to take any action on the jet boat proposal at this Monday's regular board meeting (which begins an hour early, at 5 p.m.). Unless trustees decide to take action regarding the lawsuit, they have nothing to approve or disapprove until the Planning Board makes a final decision.