IN OUR SUPPORT: an affidavit from the Director of Graduate Studies in Historic Preservation at Cornell University, an amicus brief from the National Trust for Historic Preservation, and a Memorandum of Law from the Preservation League of New York State filed on behalf of our law suit.
OUR CASE: the petition of the Aurora Colition seeking relief from the State of New York.
Layman's Outline of the Suit
On August 17, 2001, the Aurora Planning Board ended its State Environmental Quality Review (SEQR) of the Aurora Inn and Vanderipe Market project with a "negative declaration." The Board decided that demolishing or gutting of these contributing structures in a National Historic Register District constiutued a "small impact," requiring no public hearings or consideration of alternatives through an Environmental Impact Study. This decision contradicted the counsel of the Department of Environmental Conservation (DEC) and the State Office of Parks Recreation, and Historic Preservation (OPRHP), and contraditcted SEQRA guidelines.
A month later, the Aurora Coalition petitioned the State Supreme Court for relief, alleging that the village boards violated state and municipal law in approving the Inn/Market project. The judge granted a temporary restraining order.
Oral argument was heard on October 23. The judge prevented the Preservation League of New York State from filing an amicus brief in support of our case. On November 5, the judge upheld our "standing" or our right to sue (a victory for preservationists), but dismissed our allegations as being "without merit." This action was seen as severely flawed by preservation legal experts.
The Aurora Coalition filed a Notice of Appeal. The day after we moved to obtain a second temporary restraining order, the owner (Wells College) got demolition permits and began destroying the interior of the Inn. Work halted the next day, as the appellate division issued a restraining order.
In late November, a panel of five Appellate Division judges offered us an injunction to stop the work during the appeal. Such an offer is not routine, and is seen as indicating likelihood of success on appeal.
State law required us to post a bond to undertake the offered injunction. The court set the bond amount at $250,000. We were given one week to show one quarter of a million dollars in assets available to pay for potential damages from delayed work. Such damages could could never have been proven, as serious work had not begun nor had demolition contracts had been signed. But, the coalition could not afford to post the ourageously excessive bond.
The restraining order expired on December 12 and interior gutting proceeded at the Inn the next day. The Aurora Coalition filed its expedited appeal on January 7th.
On January 17 the original front balcony and porch were removed from the 1833 inn. On January 21, demolition of the inn's 1904 addition -- historic in its own right -- began and was completed by noon. The following week they razed the 1926 market, which incorporated parts of the 1829 Morgan Store (see photo pages).
The National Trust for Historic Preservation and The Preservation League of New York State requested "friend of the court" status in our appeal. The appellate division granted the request, and the Trust and the League filed a brief supporting our case on February 4.
Oral argument of the case was heard in by a judicial panel of the Fourth Department of the Appellate Division in Rochester February 25. The judges' questions focused on "segmentation" (the illegal separation of the inn project from the Wells College - Pleasant Rowland development plan for 17 other historic village properties) and "mootness" (whether the suit was immaterial because so much demolition had already occured.)
On March 15, the Appellate Division issued a ruling of one sentence in which it "unanimously affirmed" the lower court's ruling. We lost. The brutally brief decision stunned more than a few experienced lawyers and preservationists in Boston, NYC, Albany, Washington DC and upstate NY.
This court had granted us a temporary restraining order, something not routinely given. It then offered us an injunction, a rare gesture made only when a judicial panel feels something is wrong with a lower court's ruling. In fact, the award of an injunction is usually seen as a predictor of success on appeal, but this court set our injunction bond ridiculously far beyond out means at $250,000. And then, our case was rejected in its entirety with no explanation. Had we lost on the grounds of moot-ness, at least the decision would have been understandable -- if not justifiable to our way of thinking. The loss seemed inexplicable.
On April 23, 2002, the National Trust for Historic Preservation, the Preservation League of NYS, and the Aurora Coalition filed a joint motion for permission to appeal in the state's highest court, the Court of Appeals.
On July 2nd, the Court of Appeals ruled that it would not grant permission for us to appeal.
Such permission is not granted often. Yet we hoped the Court of Appeals would agree to examine the State Environmental Quality Review Act (SEQRA) in a manner which might offer protection to our historic properties.
The SEQRA was passed over 25 years ago. It gave the public the right to challenge ill-advised development. But no state office enforces the SEQRA regulations. Enforcement depends on legal action by citizens.
In recent years, this enforcement capability has been eroded by the lower courts to such an extent that the state's Attorney General stepped in last spring, and asked the Court of Appeals to allow the appeal of a similar SEQRA challenge from Catskill, NY. Elliot Spitzer asked the Court of Appeals to consider that "a rigid, highly restrictive approach that creates serious barriers to citizens who seek to bring important SEQRA claims" contradicted their own previous rulings. The Court refused to hear this case as well.
It seems ironic that the latest "I Love New York" campaign highlights our historic heritage at a time when our courts do not interpret the SEQRA in a manner which protects that very same invaluable historic heritage.
In fighting for a full environmental review of the Inn/Market project, the Aurora Coalition exhausted all legal options and demonstrated that the SEQRA no longer is a viable resource for citizens attempting to protect their historic environment.
