Is Humboldt Parkway a park? New debate in Kensington Project lawsuit

BUFFALO, N.Y. (WIVB) -- Attorneys and advocates of the Kensington Expressway Project were back in a courtroom Monday in downtown Buffalo after the judge on the case issued a win for opponents of the billion-dollar tunnel.

On Friday, Justice Emilio Colaiacovo granted a preliminary injunction in the case because he said the state failed to do an environmental impact study. The state did do an environmental analysis and said there is no difference between the two.

The East Side Parkways Coalition, which is against the Route 33 tunnel project, is required post a $100,000 bond within 90 days. If that does not happen, the preliminary injunction would be vacated. This as Colaiacovo weighs the merits of the lawsuit. The state wants to build the tunnel while those in opposition want parkland to be restored.

Arguments in court centered around the question of whether Humboldt Parkway is considered a park or not.

If so, it would be a loss for the state.

"Humboldt Parkway was acquired for park purposes. We have found the dedicatory language for that. It was acquired for park purposes, it was obtained by the Buffalo Parks Department, it has been maintained for about 100 years as a park by the Buffalo Parks Department," said Alan Bozer, an attorney for the petitioners. "I have affidavits in front of the court, where kids did go and play football, talking about 'Cookie' Gilchrist and Jack Kemp in those good old days. They played there in the 1960s, they played football there. You have mothers with their carriages and fathers with their baby carriages perambulating through, you have horse-bridal paths."

The state wants this lawsuit against the Kensington Expressway Project to be dismissed.

"How many different ways can courts say this? How many different ways can the legislature say this? The Court of Appeals has ruled on it, the legislature is in lock step with that Court of Appeals decision. The Fourth Department has addressed whether Humboldt Parkway is a park and it has held that it is not a park," said Lucas McNamara, an assistant attorney general. "We don't have to have some sort of philosophical or historic debate when there's a statute that says the definition of parks under the Buffalo Parks Commission does not include park approaches, which are the parkways."

Those behind the lawsuit say that the lawsuit should not be dismissed because of possible environmental hazards the project could have.

Arguments were made in court that the Route 33 tunnel should not be built based off of the Public Trust Doctrine and New York's Green Amendment.

Colaiacovo asked plainly what the "end game" of the lawsuit is.

"The end game is to give back a community, which is ravaged by disease from all of this, give it back the park that was there for 100 years," Bozer said. "Is there anything wrong with using imagination to try and better Buffalo? That is a gash through the City of Buffalo, almost as big as the gash that the Buffalo line did for Josh Allen at the end of last night's game," Bozer said.

The judge overseeing the case did not make a decision. Instead, he said he will make his decision on the environmental impact study within the next 60 days.