By Dan Cadzow |May 29, 2019

"NYSDOT’s obstructionism, the community’s response has been inspiring, and should serve as an example for others facing similar challenges.

The 2005 Expanded Project Proposal (EPP) report authored by the City, NYSDOT, and the Federal Highway Administration documented the dangerous history of Scajaquada Expressway. The report called for many interim traffic calming measures, including lowering the speed limit to 30 MPH. These measures were supported by the community and the projected cost for the proposed traffic calming measures was $5,000,000.

By the 2010 public meeting, however, NYSDOT had begun to “back-peddle.” They removed many proposed features that promoted the safety of pedestrians and cyclists, intra-neighborhood connectivity, and the restoration of green space. Those features were replaced with more expressway-style infrastructure. NYSDOT also refused to implement every single interim traffic calming measure recommended in the 2005 EPP.

Sadly, that didn’t change until May of 2015 when NYS Governor Cuomo forced NYSDOT to lower the speed limit to 30 MPH due to the death of a child in Delaware Park. His death was caused by a car that shot from Scajaquada Expressway into the park. In full knowledge of the road’s tragic history, NYSDOT let an entire decade go by without making any improvements to safety. This tragedy and numerous other preventable crashes.

Up to that point, NYSDOT claimed that their highly touted traffic modeling software unambiguously proved a 30 MPH speed limit would cause a “carmegeddon” (their word, intended to scare us) that would ripple across the city. Real life proved them wrong. Even with no warnings or preparations, the sudden reduction of the speed limit did not cause a “carmegeddon.” In fact, it resulted in about 30% of traffic disappearing from the corridor. In real life, that has happened elsewhere. Here too. It goes on and on… That means people were either using other, more direct routes or just driving less. That means we achieved a lower VMT (vehicle miles traveled): A bittersweet victory for Buffalo.

For contemporary traffic engineers and urban planners, a lower VMT is a sign of improved community health. It means people are accomplishing what they need while driving less. So, less congestion, less pollution, less crashes, less semi-anonymous aggression, more free time for the average driver, less inconvenience for those who don’t rely on cars, and eventually a more equitable distribution of goods and services.

But more importantly, after the speed limit was lowered, collisions along the 198 dropped by as much as 80%. Governor Cuomo’s so-called “knee-jerk reaction,” it turns out, has prevented a lot of needless damage, suffering and possibly even saved lives.

Unfortunately, it’s unlikely that the 80% reduction of crashes was experienced along the entire roadway. That’s because long stretches of NYS 198 have still received no traffic-calming measures beyond the lowered speed limit. That is, unless you consider painting steel guard rails brown traffic calming -most would just consider that a waste of labor, time, and money. NYSDOT’s attempted to label these neglected areas “transition zones” and proposed raising the speed limit to 40 or 50 MPH in them.

Imagine a world where all the streets that lead to expressways are enlarged and encased in steel and concrete to speed traffic up to “transition” to expressways.

Sounds like a dream for Exxonmobil, GM, and the American Road and Transportation Builders Association, but a nightmare for the rest of us. In the sane world, those “transition zones” are confined to the expressways as entrance and exit ramps -not extended into parks and neighborhoods. Their concept of “transition zones” is doubly irrational as the entrance and exit ramps at the end of NYSDOT’s proposed “transition zones” all contain NYSDOT cautionary speed limit signs of 25 and 30 MPH.

Crime and Liability: With regard to the driver of the car that killed three-year-old Maksym and seriously injured his five-year-old sister, the NYS District Attorney said it was a tragedy, but not a crime. The driver fell asleep at the wheel. There was no premeditation or negligence. It was a tragic, tragic accident.

The same is not true, however, for NYSDOT who knew about the dangerous road design, had resources to improve safety, but refused to for over a decade. In full knowledge of all that was at stake, they blatantly breached their duty to provide safe roads.

There are now three legal precedents for holding state and local municipalities liable for damages that result from their failure to address known dangerous road conditions. This was the case with Friedman v. New York State (1986), Turturro v. City of New York (2016), and Brown v. State (2018). These precedents are being used right now to support the Sugorovsky family’s law suit against NYSDOT, which will likely be the fourth precedent.

These precedents can help other people who have been hurt by this and other dangerous roadways too. Hopefully they will also spur DOT’s like ours to adopt a Vision Zero approach to road design.

PSA: If you or someone you care about is injured along the 198, call a lawyer quickly. Quickly because, conveniently for the powers that be, there are short deadlines for filing “notice of claim” for negligence lawsuits against municipalities. For the state of New York, you have 90 days to file a claim. Or you may file a notice of intent to file claim if you are unable to arrive at a final claim figure within the 90 days (N.Y. Court of Claims Act § 10).

It is worth the call because it can be clearly demonstrated that NYSDOT has long-known about the dangerous conditions of the roadway and refused to address the underlying problems. It’s as close as you can get to a textbook example of negligence. At the time the 2005 EPP was produced, some of the intersections had collision rates 14 times higher than state averages -that’s beyond egregious. And some of those locations, like the intersection at Parkside Ave, have yet to experience a single traffic-calming measure beyond the speed limit reduction demanded by Governor Cuomo. Unless, again, you consider painting steel guard rails brown a traffic calming measure. Or, restriping the road three times (once including an unneeded repaving), but failing to reduce lane widths each time, a traffic calming measure. More wasted time and tax payer dollars protecting car-centric infrastructure that would never be allowed to be built over parks and among neighborhoods, colleges, schools, museums, and hospitals today.

Traffic Calming may sound like some kind of feel-good nonsense, but it’s an expansive, context-specific tool kit of proven techniques that moves traffic at appropriate speeds and reduce crashes. Traffic calming prevents tragedies like these. Each orange dot on Bergman Associates Accident Graphic and each NYSDOT “statistic” actually represents tragedies like these:"[see figures in full-length article]

"All these crashes and many more took place on dry pavement in the summer of 2014, the year before Governor Cuomo lowered the speed limit. All too many of us know how emotionally, physically, and economically devastating crashes like this can be. NYSDOT should not take preventing these so lightly.

A Movement Emerges: Over time, community members attended each meeting in greater numbers and their vision became increasingly informed and focused. They studied and learned from real world examples of what works and what doesn’t with traffic engineering and urban planning in other cities.

The vision for the Scajaquada Corridor coalesced around the idea of a Complete Street: one that accommodates all users from pedestrians, to cyclists, to motorists, and public transit riders. A street that’s safe for people of all ages and physical abilities. A street that is fully integrated with the surrounding street network. A street that fixes NYSDOT’s past injuries to Delaware Park, Humboldt Parkway, and Scajaquada Creek. A street that remediates the entire length of the corridor. A street that doesn’t need guard rails because it doesn’t hurt and kill people…

Based on the results of a recent FOIA request we can now, sadly, say that Maksym wasn’t the first person killed on NYS 198, he was the 13th, at least since 1987. There will be more to come on the results of the FOIA request.

The community’s voices were amplified by numerous community organizations that lined up rank and file with this vision. These organizations include Olmsted Parks Conservancy, GObike Buffalo, Restore Our Community Coalition, Parkside Community Association, Grant-Amherst Business Association of Historic Black Rock, Buffalo and Erie County Historical Society, Buffalo Zoo, Darwin Martin House, Buffalo Museum of Science, Shakespeare in Delaware Park, Buffalo Niagara Waterkeeper, Black Rock and Riverside Alliance, Delaware Soccer Club, and Preservation Buffalo-Niagara. The Partnership for the Public Good (PPG), a meta-community organization that speaks with a unified voice for its over 200-member organizations, also published two policy briefs highlighting the social, economic, environmental, ethical, and public health costs of urban expressways like Scajaquada and Kensington expressways:

It’s a badge of honor for Buffalo that these people and institutions banded together to form another meta-community organization called the Scajaquada Corridor Coalition (SCC). Its sole purpose is the remediation of NYSDOT’s injuries to our communities and the city’s environmental, economic, cultural and historical landscapes in the Scajaquada Corridor.

All of this gave rise to numerous events including public meetings and speaker events hosted by the SCC and its members. By hosting their own public meetings, the communities recaptured some of the control over the dialogue that NYSDOT had been dominating. The talks were videotaped and shared on YouTube and Vimeo to inspire other communities facing similar dilemmas. Also, be sure to check out Urban Expressway Removal in Buffalo: The Historical Context.

It also led to public actions like closing down Scajaquada Expressway and the increasingly unpopular Skyway for group bike rides. Small groups of cyclists even put their lives, limbs, and civil liberties on the line with unsanctioned guerilla tactics like cycling the entire length of NYS 198. Due to inadequate (or absent) traffic calming and unsafe road designs, the posted speed limit is treated as a lower limit by many drivers. As a result, frustrated motorists often get aggressive. So, riding a bike on this 30-MPH city street is undeniably a risky act of civil disobedience.

The Nation Takes Notice: Advocates published numerous letters to the editor in the Buffalo News and multiple staff writers here at Buffalo Rising have written articles about the need for a complete and thoughtful redesign.

The movement garnered attention and support from national media outlets like City Lab and the New York Times:

The Scajaquada and Kensington expressways even made the top ten list of US Freeways Without Futures by the Congress for New Urbanism.

 The ever-increasing momentum to restore the Scajaquada Corridor and Humboldt Parkway has been truly inspiring. Unfortunately, NYSDOT’s response was to continue to drag the process out through long hiatuses between meetings as well as to appoint new regional directors who tried to put fresh spins on old ideas. As time went on, however, instead of being worn down, the meetings became dominated by community members that loudly, articulately, and almost unanimously rejected their plans during the public comment period at the end of their meetings. That was truly impressive just making it to the end of one of NYSDOT’s meetings is proof of the community’s dedication.

Then, without notice, NYSDOT changed the format for public participation at their meetings. Before one of the last meetings, NYSDOT no longer allowed the community to speak. They restricted public comments to hand-written statements on tiny forms. NYSDOT then picked which of those statements would be read aloud by them and responded to. To cap the censorship off, NYSDOT began the Q and A session by eliminating roughly half of the comments because they were about the interim traffic calming measures, or the lack thereof. The NYSDOT employee justified the exclusion saying, “That’s just not what this meeting is about.” It might have been good to tell community members that such questions would be thrown out while handing out the comment cards. Or, maybe, they could have recognized interim traffic calming measures were an important community concern and simply addressed the issue.

The final meeting excluded public comment altogether, except through casual conversation with NYSDOT representatives surrounding posters showing different proposed alternative road designs – none of which included most of what the community had been calling for. They scribbled notes and assured participants that their comments and insights would play a valuable role in the final design.

Those assurances were proven false by NYSDOT’s handling of the public comments submitted in writing. NYSDOT manipulated and edited the public comments in the Project Scoping Document and the Draft Environmental Impact Statement (DEIS). For example, NYSDOT excluded both above-mentioned PPG Policy Briefs from the DEIS. These briefs were drafted in direct response to this project and were submitted as public comments via email and USPS.

NYSDOT also excluded NYS assembly member Sean Ryan’s petition that included over 3,000 signatures. I was told he was very angry after finding that out, but as far as I know he never publicly denounced this misdeed.

They excluded Buffalo Olmsted Parks Conservancy’s petition that currently has over 5,800 signatures.

They excluded Parents for a Safe Delaware Park’s petition that had over 1,500 signatures.

NYSDOT also excluded a petition from 134 residents from just six city blocks of the Parkside Neighborhood that called for physical and vegetative buffers for the traffic pollution emanating from the expressway -again submitted electronically and via USPS. After badgering a DOT engineer, the Project Scoping Document was amended to include the petition, though there was no mention of the fact that it was signed by 134 people from just six blocks.

Assurances were made that this petition would be included in the DEIS, released November 2016, but it was not. During a 38-minute phone call initiated by Frank Cirillo, NYSDOT region 5 commissioner at 3:28 pm, December 8, 2016, I was told that the law forbids NYSDOT from amending the DEIS to include our petition. The truth of that statement is hard to verify, but one would think the law would work the other way around. Note – the unexpected conversation was not recorded without permission, but notes were taken and drafted as a transcript immediately after.

We also discovered several other public comments were deleted from the record or even edited for content. For example, a public comment that informed NYSDOT of changes in federal transportation policy under Transportation Secretary Foxx that released state DOTs from their requirement to prioritize “Level of Service” was deleted from the record. This is an important part of the conversation because it would prove that NYSDOT was aware that state DOTs could use more up-to-date and inclusive metrics for roadway functionality, like VMT. They could consider the impacts their designs have on health and safety as well as economic and social issues, like the division of neighborhoods, the distribution of goods, jobs, and services, the restoration of our world-class park system, and structured segregation of the City of Buffalo.

Half of another comment was deleted. This comment called for a design that would accommodate public transportation along the corridor. At that time, the proposed designs didn’t even allow for bus stops, let alone the light rail the corridor deserves. NYSDOT deleted the portion of the comment that informed them of opportunities for free technical workshops on Transit Oriented Development hosted by the Federal Transit Administration and Smart Growth America. This supports the contention NYSDOT has a myopic focus on transportation infrastructure that benefits oil and auto industries and a concomitant disregard for transportation infrastructure that serves and protects the non-automobile-reliant population.

NYSDOT DID NOT EXCLUDE a petition calling for the retention of the Scajaquada Expressway. At the time the DEIS was finalized this petition that was been circulated through social media had acquired a whopping 74 signatures. So NYSDOT INCLUDED IT IN ITS ENTIRETY 75 TIMES – Once to introduce it and another for each of the 74 people that had signed it. It reads

“We, the undersigned, call upon the N.Y.S. Department of Transportation and its Commissioner Joan McDonald, to retain the Scajaquada Expressway (NY 198) as an Arterial Expressway between the Kensington Expressway (NY 33) and the Niagara Thruway (I-190) and not to turn it into a city street which would end neighborhood access to the local highway system for the people of Riverside, Black Rock, West Hertel, North Buffalo and Kenmore.”

While the logic, research, and policy implications behind this petition are impressive, that is dwarfed by the fact that these Seventy-four people were represented 75 times while over 10,000 people’s contributions were removed from the record. It is hard to imagine how this could be unintentional.

While we have found several other comments that were deleted from NYSDOT’s report, we’ll never know how many other public comments were discarded. You cannot check to see if comments submitted through NYSDOT’s web portal were included because they do not send confirmation of receipt nor copies of the comments to the commenters. These are common practices with agencies that value openness and transparency. This was yet another way NYSDOT tried to control the conversation and marginalize the voices of our community members. We entered this process trusting NYSDOT and time after time they betrayed that trust. Through this turmoil, however, we’re learning how to confront those inequities.

Pro Tip: When submitting public comments for projects like these, always use your own email. That guarantees a copy will be saved in your Sent folder. You can also cc or bcc yourself and elected representatives.

Also, make sure to use easy-to-remember key words to make finding the copies in your Sent folder easy. I settled on using “Scajaquada Corridor Project I.D. No. 5470.22” copied from NYSDOT’s web page as a subject heading. This was to make the intent obvious for NYSDOT as well as to facilitate finding my emails when it came time to verify their inclusion to the public record.

NYSDOT may have had free reign on stacking the public-comments-deck towards their goals in the past, but those days are over. Google and email servers save everything now. You can find comments you emailed by searching key words related to Scajaquada Corridor in your Sent folder. To see if your comments were excluded, go to NYSDOT’s web page for the Scajaquada Corridor Project. Select Reports/Documents, and scroll down to where the public comments are hidden, Appendix 12.

When you open Appendix 12, type “Ctrl f” to bring up the search (or find) dialogue box. Then type in key words or short phrases from the comments you submitted. It helps to cut and paste from the original comment. It’s good to search for a minimum of three key phrases before concluding the comment was excluded. You can then verify the omission by comparing the date the email was sent to the “date received” column in the public comments -they’re ordered chronologically. You should also check several days after that in case the comment happened to be submitted over a weekend or holiday. After all that, you can be confident the comment was excluded.

A Corrupt Proposal Terminated: Evidence of NYSDOT’s wrongdoings was shared with city, state (including the Attorney General), and federal entities (including the Federal Highway Administration). To date, no responses have been received. But it does appear our efforts are having effect. In February of 2017, Buffalo Mayor Byron Brown called on NYSDOT to stop NYSDOT’s plans and listen to the community’s concerns. Buffalo Common Council passed a resolution with the same message November 28, 2017.

In January 2018, two months later, NYSDOT agreed to scrap their plans because: “After an extensive effort to create a plan that transforms the Scajaquada Corridor, unfortunately, a consensus could not be reached with the many stakeholders involved,” said DOT Region 5 Director Frank Cirillo in a statement. “More than two-thirds of the most recent public comments received by NYSDOT were not in favor of the proposed Scajaquada Corridor project moving forward.”

“As a result, NYSDOT will rescind work on the Environmental Impact Statement and not move forward with the project in its current form. In the coming months, we will hit the ‘reset’ button and begin a fresh dialogue with stakeholders.”

More than two-thirds opposed… Imagine the tally of opposition if they included all the public comments and petitions that were submitted to the DEIS. From the petitions that we are aware of, 74 voices were represented 75 times while over 10,000 voices were silenced. And “rescind” …that’s a nice word for throwing out roughly five million dollars’ worth of tax-payer dollars spent on “studies” and community outreach trying to convince people they need something that hurts them.

It is sad and exasperating to think NYSDOT has wasted over $4,500,000 and 15 years on this failed attempt to convince us we need the kind of traffic infrastructure that Robert Moses and Charles Erwin Wilson (Engine Charlie) pushed on our parents and grandparents. It is worse to think of all the crashes, injuries and at least one death that could have been avoided over the years. But WE SHOULD BE PROUD that we shut them down. We should be proud that we rejected the kind of traffic infrastructure that serves the oil and auto industries at the expense of our health, safety, communities, local economy, and social equity.

It’s been 16 months and we are still waiting for Frank Cirillo and NYSDOT to hit the reset button. I guess that means we are in another one of NYSDOT’s long hiatuses that I can only imagine is intended to wear us down. So, this is a message to Frank Cirillo and the NYSDOT saying IT IS NOT WORKING! We will not be worn down and we will not forget their wrongdoings in round one of the Scajaquada Corridor’s redesign.

In Round Two we will hit the ground already organized and less trusting of NYSDOT. Our vision for Scajaquada Corridor and Humboldt Parkway will be in focus and our toolkit for keeping the process transparent and equitable large and growing. We are looking forward to a bright future for the Scajaquada Corridor, Humboldt Pkwy and the entire City of Buffalo. NYSDOT has tossed aside our confidence and trust, but they appear to be a necessary partner in the redesign of the Scajaquada Corridor. While our confidence and trust in NYSDOT can be restored, the burden of restoration is on their shoulders. And yes, this article will be submitted as a public comment in Round Two."

To read the full article including the collection of figures, click here.