On Tuesday, Buffalo’s Common Council unanimously approved a $7.2 million settlement to a group of lawsuits brought by residents of the environmentally contaminated Hickory Woods neighborhood.

The settlement agreement was drawn up between the plaintiff’s lead attorney, Richard J. Lippes, the City of Buffalo and Buffalo Urban Renewal Agency, and approved by New York State Supreme Court Justice John A. Michalek, who insisted last year that the parties to the various suits arrive at a global settlement. The settlement is funded entirely with city money, drawn from unrestricted state aid. South District Councilmember Mickey Kearns, who has been pursuing a resolution doggedly since he took office two years ago, credited Mayor Byron Brown for locating the funds after previously promised money seemed to disappear.

It’s not a perfect settlement, Kearns conceded, but it will bring closure to a neighborhood that has struggled too long with loss of health, equity, peace of mind and faith in government. “I think that under the circumstances, this was the best we could do,” said Kearns.

Kearns also noted that this is hardly the end of the matter: The city must still settle on a plan to remediate and revive the neighborhood.

Conceived under the Griffin administration in the late 1980s and expanded under the Masiello administration, Hickory Woods is a South Buffalo housing development built by BURA on former steel company property without the benefit of prior environmental testing or remediation. The city should have tested, as it turned out: The new houses, which were offered with subsidies and attractive loan rates for city employees, sat atop soil contaminated with heavy metals and polycyclic aromatic hydrocarbons, or PAHs, a family of known carcinogens, among other hazardous substances and debris—the legacy of nearly a hundred years of steelmaking and waste disposal on the property.

City officials realized the mistake at least as early as 1993, but it was the 1998 discovery of hazardous substances during the excavation of a new basement on Mystic Street that began the tortuous, frustrating slog to this settlement, which, if effected, will put an end to all claims against the city and the former property owners.

The residents’ fury rose to a pitch in 1999 and 2000, as it became clear just how reckless the city had been in developing Hickory Woods, and how much city officials had known or should have known about the risks of the project. (City officials had received warning from state and federal agencies not to build houses on the property without first undertaking an environmental review, and a letter from LTV Steel, which sold the property to the city in 1988 for $30,000, also suggested that the property was unsuitable for residential development.) The controversy turned the staid, relatively conservative Hickory Woods residents into accidental activists, just as Love Canal had done to Lois Gibbs, who returned to the area to speak at protests and public hearings on their behalf.

The uproar, which attracted national attention, landed squarely in the lap of a sincerely horrified Mayor Tony Masiello. Masiello scrambled to find a course of action, while his staff drew back into defensive postures. Peter Cutler, communications director then for Masiello and now for Mayor Byron Brown, told the Buffalo News “to suggest that this area is a toxic-waste dump smacks of alarmist demagoguery that appears to be preying on the fears of homeowners in that area.” Assistant corporation counsel Rich Stanton, who took the lead for the Masiello administration on the Hickory Woods issue, was even more surly, accusing Dr. Joseph Gardella of UB’s Environment and Society Institute, who volunteered his expertise to the residents and the city, of bias and incompetence.

Heightening the residents’ dissatisfaction, the city quickly found money to remediate lots it still owned, as well as Boone Park and the 210-acre Superfund site across from Abby Street that had been the font of the contaminated soils—but, until Tuesday, could not find a means to compensate Hickory Woods homeowners.

Of the $7.2 million the city has agreed to pay, up to one third can be claimed in lawyers’ fees, leaving $4.8 million to be split among more than 220 plaintiffs. Each individual plaintiff will present a claim to Michalek, who, with the help of two other judges, will determine an equitable settlement. (The panel can take into account any other compensation received by plaintiffs, as well as compensation denied them in other suits.) That means the average settlement will be just over $20,000—though surely some homeowners will receive far more than others.

Pat Blake, a Buffalo fireman who moved into Hickory Woods in 1996, was the only Hickory Woods resident in Council Chambers when the vote to approve the settlement was taken. (This may be taken as a sign of weariness; eight years ago at least a hundred residents would have showed.) Blake’s 12-year-old son, Christopher, was born blind; he didn’t walk until he was nine years old and still can’t see or speak. Christopher’s mother was pregnant in Hickory Woods; the Blakes dug gardens, ate vegetables that grew in the soil there and every day breathed the dust from the construction of new homes in the neighborhood. No settlement, big or small, will ameliorate their son’s condition.

“He’ll probably get what you get for a dog bite,” Blake said.

Blake hopes he’ll get enough money to pay off his mortgage and move out. Eight years ago, Blake would have settled for as much equity as he’d put into it. Now he’s got eight more years of mortgage payments, taxes and maintenance invested into a property for which no bank will write a mortgage and no insurance company will issue a policy. He said that once he receives his settlement, he’ll sell to the first person who offers him 10 bucks.

“You can’t open your windows in the summer, you can’t use your yard,” Blake said. “It’s like being a prisoner in your home. You can’t sell it. This plan still calls for us to stay in our homes. If they give us some money hopefully be able to pay off my mortgage, but I’m still going to own this house, have to pay taxes on it and maintain it. Nobody wants it.”

“I’ll leave a vacant home. I’ll walk away from it. They city can take it and they can sell it.”

Rick Ammerman was once president of the Hickory Woods Homeowners Association, which formed around the issue of the neighborhood’s contamination. He showed up at Council Chambers 10 minutes after the vote. He’s grateful that Kearns and Brown forced this agreement and found money to fund it. But he knows it’s not perfect. It’s not the deal he and his neighbors set out to achieve eight years ago—a complete, fair-value buyout of every resident who wanted to leave, with relocation costs. But it’s better than nothing, he said, and it’s an end.

“I’ve been stuck with this for eight years,” Ammerman said. “Enough is enough. Lois Gibbs said, ‘They’ll wait you out.’ Well, that tactic has worked.”

It’ll end in tears

Hickory Woods was the most substantial item on the Council’s agenda, which was blissfully short—the entire session lasted about half an hour, and most of the agenda items were ticked off dutifully, their outcomes predetermined as always.

Only Ellicott District Councilmember Brian Davis managed to throw a wrench in the works of the first meeting of the whole in 2008, which was also the first session held under the Council’s new power alignment: a coalition of five councilmembers who are less aligned with the mayor than their remaining four colleagues. Last week, the new majority coalition of five retained Fillmore District Councilmember Dave Franczyk as council president, installed Lovejoy Councilmember Rich Fontana as majority leader and the South’s Mickey Kearns as president pro tempore—all white men, which prompted Masten District Councilmember Demone Smith to stand up and say “I will stand up to tyranny and oppression” at last week’s reorganization meeting.

On Tuesday, Davis, one of the four who sit nominally in the mayor’s camp, peevishly objected to a late-filed agenda item submitted by one of the coalition of five. Which just means the item will have to wait two weeks to make it on the Council’s agenda, be discussed and sent to the appropriate committee.

Usually late files are approved pro forma, but Davis was clearly in no mood to be cooperative: The new majority also stripped Davis of his position as chair of the finance committee. And so he chose this means of standing up against tyranny and oppression.

Welcome to Buffalo’s Common Council, 2008.

—geoff kelly