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Whirlpool Jet Boat Tours expansion: Judge rules in favor of village, Kinney

by jmaloni
Sat, Mar 26th 2011 05:00 am

Williams files new motion

by Joshua Maloni

A controversial land transfer in the Village of Lewiston was not unconstitutional.

So said State Supreme Court Justice Richard C. Kloch Sr. on Thursday, as he ruled in favor of the municipality and its deeding over of 197.23 feet of Water Street property to Whirlpool Jet Boat Tours and its president, John Kinney, for $1. Kloch said the sale, coupled with potential insurance savings, was adequate consideration.

Lewiston businessman Jerome Williams filed an Article 78 motion in December 2010 against the village and the whitewater tours company, citing the November 2010 sale as illegal and unconstitutional. The village's action enabled Kinney to obtain variances permitting him to build a new WJBT U.S. headquarters to the north of Water Street Landing.

Williams sought to have the land transfer voided.

A second motion was filed Monday, questioning the validity of the lease agreement between the village and WJBT, but Kloch did not rule on that topic.

The judge began Thursday's hearing by saying, "Get rid of it!" in regard to what he called "the five-foot sliver" of land. In response, Village of Lewiston Attorney Edward P. Jesella said, "That's what we did."

Williams' attorney, Gregory P. Photiadis of Buffalo law firm Duke, Holzman, Photiadis & Gresens, said the land transfer was not made with "fair consideration" of its "intrinsic value." The parcel overlooks the Niagara River.

Kloch asked, "Who better to provide it to than the property owner?"

Photiadis said that wasn't the issue. Rather, he argued the village essentially gifted the property over to WJBT for the sum of $1.

"How much more (is it worth)?" Kloch asked.

Photiadis said he didn't know.

"If you have no idea, how can you say it's worth more than a dollar?" Kloch asked.

Photiadis said WJBT has to pay something more substantial.

"It can't be a gift - that is illegal," Photiadis said. He speculated someone might pay upwards of $10,000 for the land. "(The village) can cure this by doing it correctly."

The parcel consists of two joined segments: 101.15 feet lies directly under Water Street Landing, while the other 96.08 feet runs north alongside the restaurant's sidewalk.

WJBT counsel John Bartolomei said the transferred land had "no marketable title."

"(The building) actually sits on this land? Amazing," Kloch said. "It's inside the covered entrance of the restaurant."

"One part of it is," Photiadis said, noting the remainder would obstruct the waterfront view. He said the village failed to competently assess the parcel's value.

Quite the contrary, Jesella said, "$1."

Kloch referenced the village's intent to seek relief from liability. When selling the land, village trustees argued the strip was more of a potential risk than an actual asset.

The judge said a person injured on the former village right-of-way would waste little time in filing suit against the municipality.

"That's what happens in this courtroom all the time," Kloch said.

He called the village's land transfer prudent, and said the $1 fee and newfound liability protection "more than exceeds the value of the property." Kloch ruled the sale was neither a constitutional violation nor a public trust doctrine violation, as the Article 78 claimed.

"It was right on point," Jesella said of the decision.

The judge rejected a motion filed Feb. 16 by the defendants to dismiss the case and compel Williams to provide $15,000 in relief.

Prior to Kloch's court session, Williams' attorneys, Photiadis and Elizabeth A. Kraengel, provided Jesella and Bartolomei with what they called "courtesy copies" of a new motion - a "taxpayer lawsuit" - that was filed on Monday. It describes a land lease, signed in 2002 by the Village of Lewiston and WJBT, as "illegal," and states it "violates the New York State Constitution, the public trust doctrine and the General Municipal Law." Further, the motion states WJBT dock easements "violate the requirement ... that the premises be used for the public benefit as a public recreation area" and the lease itself "is also inconsistent" with the Local Waterfront Revitalization Program.

Williams is requesting the lease agreement be nullified.

In response, Bartolomei said, "It seems to me there is no merit to that, either."

"We'll be moving to dismiss that, as well," he added.

Neither Williams nor Kinney appeared in court.

On Thursday afternoon, Kinney said the village turned a piece of property that had no significant value - but significant liability - into something better.

"(It's a) project that will create significant tax base to the village over the next 10, 20, 30 years," he said. "That seems like a pretty good business move on the part of the village."

Kinney intends to begin constructing the two-story, almost 2,700-foot WJBT headquarters in April or May, continue working through mid-June, and resume the process after Labor Day. The project, estimated at $1 million, was expected to open this summer, but has been delayed in court.

"It's going to have to be done in two phases," Kinney said, adding it's "a shame" construction workers will be delayed and visitors to the waterfront will have to wait for new river overlooks included in his design.

"All for the sake of an exercise that proved to be a big waste of the village's time, money," he said. "Now we're going through another round of it."

Attempts to contact Williams, who was out of town, were unsuccessful.

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