Say you own a house, one of the big old three-story jobs like you can find in the city's North End.
Now say some city inspector, acting on orders from the mayor, comes along and tells you that, because you didn't mow your lawn last week, you can no longer occupy the top two stories of your own house.
Should you still have to pay taxes on a three-story house?
That, in a nutshell, is the heart of the legal dispute raging for the past four years between Mayor Paul Dyster and the owners of the One Niagara building downtown. The attempts to shut down the building -- which operates as a successful tourist attraction -- have already cost the taxpayers of Niagara Falls more than $1 million.
While Dyster claims that his only interest is collecting the $1.5 million owed by the building's owners in back taxes, the reality is that he, city Planning Director Tom De Santis and Assistant Corporation Council Tom O'Donnell have engaged in an ongoing pattern of harassment, citing issues as picayune as the planting of decorative shrubbery to the positioning of flagmen working in the building's parking lot. Additionally, the administration has been able, through legal maneuvering, to keep eight of the building's nine floors closed for most of the past four years.
They have been aided and abetted in this effort by the Maid of the Mist Corp., which has actively solicited tourist complaints about the One Niagara operation, and Dr. Robert Shibley, dean of the University of Buffalo School of Architecture and Planning, who is often brought in by Dyster to condemn this or that private developer, most recently in a December article in Bloomberg's Businessweek in which he attacked Niagara Falls Redevelopment.
On April 1, prominent Buffalo attorney Michael T. Kelly filed a notice of claim against the city, in which the owners of One Niagara charged the Dyster administration with numerous possibly criminal counts including "fraud, corruption and waste," "excessive" tax assessments, "illegal and disparate" enforcement of city and state laws and "deprivation" of property and civil rights.
Last week, he delivered a six-page motion directing the preservation of One Niagara materials to Dyster, 10 city department heads, Shibley, and James and Christopher Glynn, the owners of the Maid of the Mist Corp., to preserve all files, electronic data and other materials relating to the Rainbow Boulevard property.
"If we decide to look into this matter and possibly start a lawsuit, we will have any communications between any party that might have an interest in this," Kelly said.
An attorney close to the situation, speaking on the condition of anonymity, said the filings may lay the groundwork for a civil RICO action against those named, since the owners believe that the city's actions over the past four years constitute a criminal conspiracy.
"We are not going to be pushed into the Niagara Gorge by this administration for some mysterious reason," said One Niagara President Tony Farina.
Dyster and James Glynn both have publicly said that the One Niagara site would be the perfect place to locate the Niagara Experience Center, a pie-in-the-sky, multimillion-dollar project that, if erected, would take the property off the tax rolls forever. Paul Grenga, managing partner at One Niagara and an attorney himself, said the city's motives are clear.
"They are obviously trying to acquire it for some other use," Grenga said. "They won't say what it is, but the sheer number of incidents over the past four years clearly represents a pattern of behavior on the part of this administration."
The city is being represented in the case by another high-powered Buffalo attorney, Dan Oliverio. In dealing with the case off and on for a period of nearly two years, state Supreme Court Justice Richard Kloch found Oliverio's arguments on behalf of the city unimpressive.
In one courtroom exchange, Kloch plainly showed his contempt for the Dyster administration's arguments.
"Let me ask you a question then," Kloch said. "When you shut down this building, what are you going to do with it?"
Oliverio, who grew up in Niagara Falls, confessed that he didn't know what the city's plans were, or even if there were any plans.
"This is why Niagara Falls is not sick, not on life support, but dead," Kloch said.
More than 100 people are employed at One Niagara, people who would be thrown out of work if Dyster gets his way. For his part, the mayor has been unsuccessful in creating a single permanent private-sector job since taking office four years ago.
One Niagara is the only large business downtown not owned by the Seneca Nation of Indians, like the Seneca Niagara Casino, or the Seminole Nation of Indians, like the Hard Rock Cafe. It is also not owned by the Maid of the Mist Corp., a fact that irks the owners of that company -- who are strong Dyster supporters -- to no end.
Still, while Dyster has spent millions of dollars bolstering the Hard Rock and Maid of the Mist operations, and says he sees no need to renegotiate the state casino compact with the Senecas, despite the fact that they're withholding tens of millions of dollars contractually owed to the city, he seems to believe firmly that the biggest problem downtown is the continued operation of a highly successful private business.
A federal RICO action, which would allow One Niagara's owners to connect the dots and show whether or not the Dyster administration worked in concert with numerous public and private entities and individuals in order to shut the operation down, could provide the answers.
If it looks like a duck and walks like a duck and quacks like a duck, it's a duck, the old saying goes. And in the case of the city of Niagara Falls vs. One Niagara, it might even be a skunk, or a pack of them.
|Niagara Falls Reporter||www.niagarafallsreporter.com||April 26, 2011|