The Buffalo City Court Building. Photo by M.J. Stafford

BUFFALO — Nothing was settled Wednesday when a state Supreme Court justice heard arguments in Fredonia McDonald’s owner Enrico Francani’s case against the state Department of Transportation over the proposed Routes 20 and 60 roundabout. But the Honorable Tracey Bannister made it clear: She wants the two sides to come to an agreement without her help.

“I’m hoping you resolve this,” the judge said at the end of the hearing. She wants the parties — which acknowledged in court that settlement talks have been ongoing — to let her know by next Friday, April 12, if they were able to cut a deal.

“I’ve always advocated some kind of a compromise to avoid this,” she said. Bannister warned that if she has to make a decision, “whatever I decide, someone will be hurt.”

Francani’s lawyers, Alan Bozer and Adam Walters, spoke first at the opening of the session. Bozer reiterated Francani’s position that there was never a proper State Environmental Quality Review (SEQR) for the project.

Bozer repeatedly said DOT did not take a “hard look” at issues surrounding the roundabout. “If an agency fails to take a hard look, then it leads to the standard we all know in agency review, ‘has there been an abuse of discretion?'” he said.

“The state has taken the position we are second guessing the project,” Walters said. “That is not our goal.”

He said DOT failed to do sufficient work looking into the project’s impact to local business and pedestrian safety, as well as stormwater discharges associated with construction. “The state has acknowledged and admitted it will deal with the stormwater later,” he said, referring to documents he said he’s received from DOT officials.

Walters cited traffic studies that say medians, which would be installed as part of the project, cause big problems for entry into and exit from nearby businesses. He said a large part of DOT’s position, that businesses won’t be unduly harmed by the roundabout project, was based on a Utah study. “That study specifically said they are not looking at impacts on individual businesses,” he said.

“There’s not a lot of meat to their analysis…it was designed to come to the conclusion there would be no impacts, it would seem,” Walters said.

The state’s lawyer, Jane Cameron, disagreed with virtually everything Bozer and Walters said.

“There have been three occasions DOT sat down with the plaintiff and explained why they did what they did,” she said. “They (Francani’s lawyers) propose a left-hand turn (lane for McDonald’s from Route 60) that would create impacts. They propose a corridor approach that’s not feasible.”

Cameron said signage could easily be installed to direct people on getting to McDonald’s. “It might take a little longer but McDonald’s can still be accessed all four ways,” she said.

The nature of the project “is to eliminate left turns into businesses” to make traffic flow safer, she said.

The state’s lawyer repeatedly questioned why other nearby businesses were not part of Francani’s suit and slammed Bozer and Walters’ “hard look” standard. “This ritualistic incantation about the term ‘hard look’ — that term is not even in DOT regulations,” she said. She later added, “Many businesses were disadvantaged by this … Burger King was tremendously disadvantaged. They’re not in court.”

Bannister wondered why the Route 60 median couldn’t be made shorter to assist in access to McDonald’s. “There was a snow removal issue that would occur. This has been explained,” Cameron responded.

Cameron also added that Francani had no authority to talk about traffic, pedestrian or storrmwater impacts — only economic issues he might face. His entire case is “based on a hunch,” she said.

“This business owner has standing so we an end this right here,” Bannister replied a little later, noting that the economic impacts on McDonald’s are a key concern of hers.

“I see a plan that impedes traffic in every direction,” the judge said. “Literally this project isolates it. I can see it now looking on the map. … I applaud the aim of trying to make it a safer place but it just appears that the unfortunate outcome of what you plan here is detrimental to McDonald’s.”

Bannister later told Cameron, “As a consumer of fast food, I’m not sure I’d go to McDonald’s if I had to do anything you’re suggesting.” Cameron replied that the standard to be met in the case was not the judge’s, but whether DOT’s efforts were “in error or capricious.”

“There has to be a way to make it somewhat easier to get into McDonald’s,” Bannister said. Cameron warned the judge she might be setting a precedent if she imposed left turn lanes, possibly opening up the state to countless lawsuits from concerned business owners.

As for a dedicated corridor approach, or “channel,” for McDonald’s entry, “there are engineering constraints to creating traffic roads that will on a regular basis be blocked,” Cameron said, again bringing up the snow removal issue.

Towards the close of the hour-long hearing, Francani’s lawyer sought an injunction against DOT starting construction, noting that flags are already in place to tell workers where utilities are located. Bannister denied the injunction.