Judge Upholds Concerns for Impact of Kensington Tunnel Project

In an unexpected announcement late Friday, State Supreme Court Judge Emilio Colaiacovo issued a ruling that the New York State Department of Transportation failed to sufficiently consider the environmental impacts of a proposed project that would put a cap over a portion of the Kensington Expressway heading into downtown Buffalo. 

The ruling was unexpected in part because both the East Side Parkways Coalition, which has been suing the state to stop the project altogether due to environmental concerns and other issues, and the state DOT are due in court today at 9:30 for a hearing about the same case. The hearing is scheduled for 9:30 a.m. at Erie County Courthouse with a press conference immediately following. 

According to reports, the judge granted the preliminary injunction sought by East Side Parkways and others suing the state over the lack of an environmental impact statement, a more in-depth and detailed review of the project and how it would change air and water quality, among other things, for those living closest to the proposed 4,100-foot cap-and-tunnel project between Best and Sydney streets. Instead, the state performed a more superficial, faster, and less costly study to determine the impact of the project would be relatively insignificant and would last a short time. 

“In examining the four stages of the project, nothing can be considered temporary,” the judge said in part. 

The state admitted that traffic impacts were not taken into consideration during the length of the proposed project, which could take several years to complete. Further, Judge Colaiacovo suggested there was “very little information” about the physical disruption to those who live above the project, including noise and vibrations from heavy equipment operating to build the tunnel, provided during the environmental assessment it conducted. 

“All of these discrepancies beg for a more thorough look and analysis that would otherwise be included in an” environmental impact survey, the judge said. “Without question, given the low threshold to require an EIS, the state missed the mark in failing to do so here.” 

“We’re very excited and energized about this, and also it presents a new opportunity for us to take a new look at the project and what could be done instead,” said Matt Dearing of the East Side Parkways Coalition. 

Terry Connors, a legal analyst who often participates in high-profile cases in Buffalo and Western New York, said there are still plenty of decisions left to be made regarding this case. For example, the Coalition has paid $10,000 in bond to keep in place a restraining order preventing work from proceeding on the project; they are now required to post an additional $100,000 within the next 90 days. 

“You have to post a bond in the event that there is injury to the other side, so if it turns out that the judge was wrong or it’s reversed on appeal, there will be the ability to recover the defendants under that bond for damages that they lost because of the imposition of a point of injunction,” he said. 

This case comes at a time when other cities, in New York and elsewhere, are pushing for the reunification of neighborhoods by removing highways. Rochester has famously and successfully removed large portions of its Inner Loop and replaced highways with parks. The East Side Parkways Coalition has said the proposed park the state wants to build on top of the tunnel would not go far enough to reunite the neighborhood that used to stretch between Delaware and Martin Luther King Jr. Park, a stretch that was broken when the Kensington was built. 

“Only the complete removal of Route 33 inside Buffalo can accomplish that,” writes community activist Sherry Sherrill in a recent Buffalo News editorial. “All the above is why and what ESPC is fighting for. Down in New Orleans (LA) and over in Detroit (MI), this same neighborhood-centered argument, advocating highway removal versus highway ‘capping’ and ‘stitching,’ is raging. I hope those communities win. I hope that, knowing a community cannot win unless its neighborhoods win.”