Appeal filed in ongoing battle over Kensington Expressway Project

BUFFALO, NY (WIVB) -- Tuesday marked yet another chapter in the battle over the future of the Kensington Expressway Project.

The East Side Parkways Coalition is appealing a judge's recent ruling, continuing their efforts to halt the $1.5 billion cap-and-tunnel project that spans less than a mile of Route 33, from Dodge to Sidney Streets.

“This is a toxic infrastructure that has devastated the health of neighbors who live nearby,” said Sherry Sherrill of the East Side Community Collaborative.

For months, the coalition has fought to stop the proposed project, citing environmental and public health concerns.

"I'm in this fight for the future, and for now, I hate to see this expressway maintained the way it is,” said resident Wayne Blassingame.

In February, a federal judge temporarily put the state project on hold pending a proper environmental review.

“We successfully opposed what they wanted to do with this toxic tunnel, but what we are for is the restoration of Humboldt Parkway,” said the coalition’s attorney, Alan Bozer of Phillips Lytle LLP.

However, the coalition faced a setback when a case they filed, claiming the State Department of Transportation lacked legislative authority to remove the parkway, was dismissed.

Coalition attorneys argue the Kensington Expressway violates the Public Trust Doctrine and the New York State Green Amendment.

“Land that is dedicated as parkland by the legislature can only be alienated away from parkland by the legislature,” Bozer said. “When the commissioner came in and thrust this expressway through the East Side of Buffalo, what he did was take 46 acres of parkland and did not replace it.”

"The State DOT doesn't comment on pending litigation," the New York State Department of Transportation said in a statement.

The project was originally slated to begin this fall.

Residents near Route 33 continue to raise health concerns, citing long-term effects of living near the expressway.

“I lost my uncle not even 24 hours ago from cancer," one resident said. "The high rate of cancer among people who live here is just tremendous."

Bozer emphasized the historical context and legal basis of the coalition’s appeal.

“The state legislature dedicated this as parkland in 1869. We expect the Appellate Division to agree with us — that the proper inquiry is what kind of parkland it was," he said. "If it was parkland, then the state was wrong to have taken it. The public trust doctrine says that, believe it or not, with a huge project like this, if you do it unlawfully, you’re taking it away from the public, from the people, and it has to be restored.”

The appeal will be heard by the New York State Supreme Court Appellate Division in Rochester before the end of the year.