UPDATED FRIDAY AT NOON.
by Joshua Maloni
State Supreme Court Justice Richard C. Kloch Sr. has dismissed the second lawsuit filed by developer Jerome Williams and Lewiston Management Group against Whirlpool Jet Boat Tours and the Village of Lewiston.
The lawsuit, which was filed March 21, 2011, questioned the validity of an agreement between the village and WJBT. It asserted the Village of Lewiston violated Section 51 of general municipal law and was in violation of the public trust doctrine. The plaintiffs claimed a 2002 lease between the village and WJBT President John Kinney violated easement requirements, and inferred trustees illegally granted said lease. This action, the suit alleged, resulted in the "waste of public property" alongside Water Street Landing on Water Street, where WJBT operates.
In his decision dated Jan. 13, Kloch wrote, in part, "Plaintiffs claim a waste of property which imperils the use and enjoyment of the waterfront. Nothing could be further from the truth."
Kloch wrote the jet boat "rides provide a view of the Niagara Gorge and rapids that would otherwise be unattainable."
He added, "even if the Lewiston Jet Boat tours were to stop, the Jet Boat would continue to operate from its Canadian location. The Canadian launch facility is further downriver, meaning Jet Boat excursions from that location would be longer and therefore presumably, louder. Plaintiff's (sic) were not able to submit any material which raises a question of fact that the lease is a wasting of public property or in anyway deleterious to the environment or ecology.
"Curtailing or prohibiting the Jet Boat from the Lewiston location would merely move this tourist generating attraction from New York to Canada."
With regard to Section 51, Kloch explained the state of New York granted an easement to the Village of Lewiston for the use of the land in question "for the purposes of developing and expanding the Village's waterfront and waterfront activities (Kloch underlined that statement). That's exactly what they did."
"The easement was made pursuant to (section) 75 of the Public Lands Law and the lease from the Village is specifically authorized and allowed by the easement."
John Bartolomei, the attorney representing WJBT, filed a motion to dismiss the second lawsuit in November 2011. Kloch dismissed the first lawsuit on March 21, 2011. In that case, the plaintiffs claimed the Village of Lewiston's November 2010 sale of 197.23 feet of Water Street property to Whirlpool Jet Boat Tours for $1 was illegal and unconstitutional.
In dismissing the second lawsuit, Kloch wrote, "It appears, from oral arguments, that the plaintiffs resent the Jet Boat spoiling their view of the Niagara River," and "have some undefined animus toward the Jet Boat operation."
Village of Lewiston Attorney Edward Jesella said, "I think the judge is absolutely right."
"I don't believe this was an environmentally driven lawsuit," he added. "I think that's apparent. It was apparent with the judge. It was apparent with the village, and it was apparent with Mr. Kinney and Mr. Bartolomei."
Jesella said he understood "the honest concerns" of residents who spoke in favor of the plaintiffs, but "I think this is the only way the judge could've answered (the motion to dismiss)."
Williams was out of town, but his daughter, Bridget, said he would continue to fight.
"Obviously, we're disappointed," she said Thursday. "We're going to appeal this decision. We don't think the judge considered all aspects of this case."
In a letter to Kloch dated Nov. 29, 2011, obtained Friday by the Sentinel, Jerome Williams said the jet boat tours produce "destructive wakes," squealing loudspeakers and "the roar of the engines punctuating the enjoyment" of the waterfront for residents and recreational boaters.
"The Whirlpool Jet Boat operation jeopardizes the quiet enjoyment of the Lower Niagara River," he wrote. "Potentially limitless growth of this operation could mean declining property values and hesitancy on the part of citizens to invest in their waterfront property. It could mean buses roaring down Center Street in our village to take people to the Jet Boat, and then roaring straight back out."
In response to news of the appeal, Kinney said, "This is the type of situation that keeps Western New York mired in the economic condition we're in."
He said the lawsuits and appeal are "delay tactics for the sake of delay."
In fact, the court proceeings have delayed Kinney's development of a new, two-story headquarters for WJBT.
In January of 2011, he was granted permission to build a 2,580-square-foot structure for WJBT north of its current base inside Water Street Landing. The seasonal, mostly open-air facility would offer bathrooms for patrons and visitors, improved changing facilities and a street-level retail operation.
In November 2010, Kinney said the new headquarters would provide "a very clear and distinct entrance to the jet boat tour operations," which is presently connected to a series of doors leading into Water Street Landing.
"We're trying to create economic vitality in the village," Kinney said Thursday. He said a new headquarters would result in construction jobs, more hotel/motel room stays, and more tourists shopping and dining in Lewiston.
Kinney also said a new headquarters would increase the tax base in the village.
"All that is being put on hold," he said.
Without the lawsuits, Kinney said the new headquarters would have debuted this spring. Now, "There is no way this is going to happen for the 2012 season."
He said the legal action "ultimately hurts the taxpayers of the village," and said it's the residents of Lewiston who have to foot the bill for the village's defense in court.
"It's a shame," Kinney said.
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