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Tops Never Stops…Cutting Down Trees

Filed under: Uncategorized

The effort by Tops Markets on the corner of Grant and Amherst Streets to install a gas station in the front of their plaza, right alongside the Scajaquada Creek bike and walking trail has been tabled for at least two weeks by the city’s Planning Board. As we reported a couple weeks ago, Tops wants to put in four pumps serving up to eight cars, three underground gas tanks with a capacity of 25,000 gallons, and a lit canopy along Grant Street, all packaged in their application as part of a larger effort to overhaul the market’s interior and exterior, though clearly the centerpiece of the makeover is the gas station. The supermarket’s attempts to get a gas station permitted there have been rejected twice before.

The tabling of this application happened at the request of Tops itself, though it is certainly a response to neighborhood opposition, which has followed two lines: first, the project requires a thorough environmental review, based on its proximity to the creek; second, Tops needs to fulfill any number of broken promises it made to the community about the interface between its plaza, the creekside path, and the rest of the neighborhood before it is allowed any further expansion.

Apropos the first objection, check out this letter from community activist Charley Tarr to the city’s law department, the Common Council and the Planning Board:

I am a 20-year resident of the West Side of Buffalo.  After reading of this proposal in the June  20th issue of Artvoice, I immediately sought to review pertinent documentation including the  May 17, 2012 summary brief authored by Mr. Daniel Spitzer of Hodgson Russ LLP and the  SEQR Environmental Assessment Form completed April 13, 2012.  I am working to complete a  larger brief with references to statute and exhibits for the Planning Board meeting on Tuesday,  July 17th.  The major concerns that will be supported in the brief are summarized as follows:

1. EAF Deficiencies Focusing on City codes, the applicant has presented a deficient Environmental  Assessment Form (EAF) to the Planning Board (617.20 Recorded April 13, 2012).  The applicant  has failed to adequately acknowledge conditions requiring jurisdiction pertinent to both the U.S.  Environmental Protection Agency and the New York State Department of State.  The Planning  Board (as Lead Agency) is charged to “Determine whether the action involves a federal agency  and/or whether the action may involve one or more other agencies” under New York State DEC  §617.6 (a-ii, iii).

2. Coastal Area and Inland Waterway Zone The applicant has failed to properly identify  jurisdictional procedure accordant to NYCRR Title 19 Chapter XIII regarding Coastal Area and  Inland Waterway designation.  The proposed site is located well within the jurisdictional  boundaries of NYCRR Title 19 Chapter XIII receiving Coastal Area and Inland Waterway  designation.  As such, the Planning Board should make no SEQR declaration until the applicant  submits this form to DOS and gets a consistency determination.   [http://www.dos.ny.gov/communitieswaterfronts/pdfs/caf2.pdf]  Following confirmation of  reception from DOS, the proposal should trigger a Type-1 action designation and receive a Positive  Declaration for a full Environmental Impact Study adjoined with referral to the authority of the  New York State Department of State. 

3. Federal EPA Jurisdiction  As of March 15, 2012, the City of Buffalo Sewer Authority is under  federal order by the U.S. Environmental Protection Agency to comply with requirements of the  Clean Water Act in relation to Combined Sewer Overflows which discharge into various Buffalo  waterways including the Scajaquada Creek (concisely named in the EPA Order).  The proposed site  is substantially contiguous (directly adjacent) to Scajaquada Creek and therefore should trigger a  Type-1 action designation and receive a Positive Declaration for a full Environmental Impact  Study adjoined with referral to the authority of the U.S. Environmental Protection Agency.

4. Historic Creek Bed  The very unique relationship between the applicant’s proposed Benenson  Parcel and Scajaquada Creek does not appear to be understood.   Examination of historic surveys  and aerial photos reveals that the proposed Gasoline Station lies directly between the Parish Tract  and the Stephens Survey.  This means that the proposed site is located directly in the center of the  historic waterbed of Scajaquada Creek.  The path of the Scajaquada Creek was straightened and the  subsequent creation of the Benenson Parcel was facilitated by the DOT during the construction of  the Scajaquada Expressway.  The water contamination and flooding event concerns arising from  this extreme adjacency should trigger a Type-1 action designation and receive a Positive  Declaration for a full Environmental Impact Study.

5. Freshwater Tributary  The proposed site is located substantially contiguous (directly adjacent)  to a direct freshwater tributary, the Scajaquada Creek which within 1-mile flows untreated into the  Niagara River providing freshwater supply to hundreds of thousands of people.  The Niagara River  shares an international border with Canada immediately at the Scajaquada point of attachment as  the Black Rock Canal.  Therefore, the proposal should trigger a Type-1 action designation and  receive a Positive Declaration for a full Environmental Impact Study.

6. Parkland and Recreation  The proposed site is located substantially contiguous (directly  adjacent) to the Jesse Kregel Pathway (previously the Scajaquada Pathway) which is a publicly  owned parkland and recreation area representing years of political endeavor and more than 1.7  million dollars expenditure.  The proposed site is also situated less than 500-feet from the new and  substantially invested Track and Athletic Field at Buffalo State College. Therefore, the proposal  should trigger a Type-1 action designation and receive a Positive Declaration for a full  Environmental Impact Study.

7. Site of Military Battle  The proposed site is located substantially contiguous (directly adjacent)  to a War of 1812 historic area eligible for inclusion on the State Register of Historic Places. The  last major battle of the War of 1812 on the Niagara Frontier, the Battle of Scajaquada Bridge,  occurred in close proximity to this site and, according to local reports, holds military gravesites in  situ.  Therefore, the proposal should trigger a Type-1 action designation and receive a Positive  Declaration for a full Environmental Impact Study.  

This seems to have been sufficient to have forestall Tops’s effort to get the gas station fast-tracked. As far as the second objection, regarding Tops reneging on promises to the neighborhood in the past, have a look at this:

This is the stump of one of six trees Tops took down in front of its store in the last week. This despite that fact that, as we noted in our first report on this matter, that Tops has failed to plant or maintain the number of trees they promised the neighborhood long ago. Not by a couple of trees; by nearly 30, or about half what they promised. And now they’re cut down six more.

Brilliant community relations.


  • BufChester

    Kudos to Charley Tar, and to AV, for bringing these issues to light.