Lawsuit Over The 33 Tunnel Filed by Residents in Buffalo, New York

Residents near Rt 33 file lawsuit over proposed Kensington Expressway tunnel project in Buffalo

The fight isn’t over until it’s over, and for people who live near the Kensington Expressway in Buffalo, the battle to prevent a tunnel to cap the highway is far from done.

By Monday, three lawsuits will be filed in State Supreme Court challenging the project, trying to prevent the $1 billion construction effort from starting without a drastic redesign.

The complaints focus on two key components of the state’s efforts: the environmental review process, which two cases will argue was insufficient and did not fully comply with state environmental laws, while the third to be filed Monday says the state’s Department of Transportation did not have the authority to build the expressway in the first place, making the new proposal a violation of citizens’ rights to a healthy environment as codified in Section 19 of Article 1 of the state constitution, better known as the Green Amendment.

The state’s proposed project would put a cap on ¾ of a mile of the expressway, from just north of Martin Luther King Jr. Park into downtown Buffalo, and putting greenspace on top to mimic the conditions along Humboldt Parkway prior to the expressway’s construction several decades ago.

The lawsuits have been filed by nearly two dozen residents in Buffalo’s East Side, closest to the highway, and have the support of the East Side Parkways Coalition, an organization that has been calling for the highway to be outright removed and restored to its original park-like setting. The group argues the radial streets around the existing expressway are sufficient to handle the estimated 75,000 cars that travel on the Kensington daily, adding that the expressway was approved at a time when Buffalo’s population was, and was expected to be, closer to a million people.

Alan Bozer, a senior attorney on behalf of the plaintiffs from Phillips Lytle, said his clients “will not accept this mediocre, second-rate, incomplete plan” and will continue their fight for one that restores their neighborhood and helps address health and safety concerns associated with both the existing highway and the proposal to build a tunnel instead.

One of the plaintiffs, Dennice Barr, is a resident of the Fruit Belt and said she’s concerned for the health of herself and her neighbors. “We live in a cancer cluster and are surrounded by hospitals that can’t save us. Instead of the state looking at what is best for the residents affected, they are looking at what is best for the Department of Transportation. They should want to fix it and improve it and make it better for us.”

Another plaintiff and resident, Tendaji Ya’Ukuu, said he questioned not only the safety of the project but whether it would do anything to improve or protect the health of those who live closest to the road.

“I hope the lawsuits are able to delay the project so much that the engineers and the politicians working on its development see there is community pushback and decide there are other routes within this project’s development to take.”

A third, Marcia Ladinia, used to work for the Department of Environmental Conservation and has concerns about the project overall. “I’ve seen people get sick, die, and all because of this expressway. I see no reason to have a six-lane to have a six-lane expressway through a residential neighborhood. It’s ridiculous, and then to have them build the tunnel and perpetuate this for another 100 years is insane. It will continue to damage our health, it will damage our homes.”

The East Side Parkways Coalition, which has long fought against any work on the Kensington that wasn’t a complete replacement of the highway with parkland, points to the successful infill of the so-called Inner Loop in Rochester, in which a ⅔ mile segment of highway was filled, and a new streetscape built with greenspace, at a cost of $22 million. That effort was a partnership between the city of Rochester, the New York State Department of Transportation, with the Federal Highway Administration acting as consultants. The resulting project, including $200 million in private housing developments, was so successful, Rochester is now looking to take the same approach with an additional mile and a half of highway.

A spokesperson for Gov. Kathy Hochul said nothing about the lawsuits specifically, only that the environmental review conducted before the project was approved by the state “adhered to all applicable state and federal laws and we look forward to moving forward the project forward in the coming months,” as the governor has stated she’d like to see construction begin by the end of the year.