With All Due Respect (and, Appreciation),
Art G.
If vaping – the use of electronic cigarettes – is as unhealthy and addictive as many medical experts believe (especially for children, teens, and young adults, and women who are pregnant) – Buffalonians should thank New York State for taking aggressive action.
On September 17, 2019, Gov. Andrew M. Cuomo announced that New York is the first state in the U.S. to implement a ban on the sale of flavored electronic cigarettes and nicotine e-liquids. While the ban is effective immediately, the Department of Health will allow retailers a two-week grace period before beginning visits to enforce the flavoring ban.
That’s great. But what have Buffalo’s elected officials done in response to recent health advisories by federal and state agencies triggered by unexplained vaping-associated pulmonary illness? Predictably, not much.
On September 6, Mayor Byron Brown announced that he was “proud” to be issuing a six-month moratorium on the opening of new stores in Buffalo that sell electronic cigarettes and supplies to give the city time to learn more about the health impacts of “vaping” on residents. His Honor’s press release proclaims in all-caps, “MAYOR BROWN ANNOUNCES SUSPENSION OF NEW VAPE LICENSES FOR SIX MONTHS.” It also states, “The resolution, sponsored by Delaware District Common Council Member Joel Feroleto, was unanimously adopted by the Common Council on September 3, 2019.” [Here’s Mayor Brown’s VapeShopMoratorium-PressRelease 09-06-19.]
Mayor Brown’s statement provides the following explanation of the Brown/Feroleto moratorium:
“The City of Buffalo issues licenses and special use permits pursuant to Section 399-13.1 and Chapter 496 of the City of Buffalo Code for the sale of tobacco and electronically delivered nicotine, commonly referred to as ‘vapes’ or ‘electronic cigarettes.’ The [Common Council’s September 3, 2019] resolution requires a moratorium on the issuance of these special use permits while these studies and investigations are ongoing.”
[Note: I know of no provision in the city’s code that requires an individual or business to obtain a “license” to operate a vape shop within the boundaries of the City of Buffalo.]
I have many concerns regarding this feeble and, from what I can tell, unlawful action by Mayor Brown. Here are the primary ones:
First, the real danger to the health of Buffalonians are the numerous vaping establishments already in existence, not the theoretical new ones that might apply to the city to open a store in the next half-year. With or without the Mayor’s moratorium, vape shops continue to pedal their problematic products on Elmwood Avenue, Hertel Avenue, South Park Avenue, Seneca Street, Main Street, etc.
Second, Mayor Brown’s pronouncement, and the Feroleto-sponsored resolution adopted by Buffalo’s legislative body, disregard (or, are ignorant of) an important fact: A “special use permit” approved by the Common Council is only needed to open a vape shop in the following four Buffalo zoning districts pursuant to Mayor Brown’s much-hyped “Green Code”: N-2C [Mixed-Use Center], N-2E [Mixed-Use Edge], N-3C [Mixed-Use Center], and N-3E [Mixed-Use Edge]. In contrast, “vaping establishments” are “permitted by right” in six zoning districts throughout the city. That is, under the “Green Code,” an individual or business can open a vape shop without the need to obtain a “special use permit” in the following districts: N-1D [Downtown/Regional Hub], N-1C [Mixed-Use Core], N-1S [Secondary Employment Center], D-S [Strip Retail], D-C [Flex Commercial], and D-IL [Light Industrial].
As a result of the provisions in the Green Code, a moratorium on the issuance of new special use permits for vaping establishments is an ineffective tool to stop all new vape shops. And it makes a joke out of the purported goal of the Feroleto resolution “to use every possible precaution to limit the potential negative effects of vaping while these studies and investigations are ongoing.” [Here’s the text of Feroleto’s 09-03-19 vape shop resolution.]
[Note: Just a reminder that the so-called “Green Code” – Buffalo’s zoning law – is known officially as the “Uniform Development Ordinance” (UDO) or Chapter 496 of the City of Buffalo Code.]
One can only wonder how our Common Council enacted, and Mayor Brown ceremoniously approved, a new zoning law in January 2017 that allows vaping establishments in many areas of the city “as of right” when the potential adverse health impacts of vaping were already well known at the time. [See, for example, Surgeon General’s 2016 report.]
Third, Mayor Brown does not appear to have the authority to issue this vapid moratorium. Suspending the special use permit process under the Green Code/Uniform Development Ordinance constitutes a temporary amendment of the zoning code. Amending the zoning code (or, any other provision of the City Code) is a “legislative” act which must be performed (following a public hearing) by our legislative body, the Common Council, not by the Mayor. The “Feroleto resolution” seemed to recognize that fact when it stated: “[T]he City of Buffalo Law Department is instructed to draft an ordinance amendment that suspends the issuance of new licenses for six months, to any person, entity, or company that plans to sell primarily tobacco or electronically delivered nicotine for the Common Council’s review.” Nonetheless, I have not heard any Councilmember publicly express dismay at either Mayor Brown’s usurpation of the legislative body’s authority, or the Mayor’s disregard for the separation of powers envisioned in the City Charter and Code (as well as our state and national constitutions).
Fourth, I could envision the Mayor’s staff arguing that Mayor Brown has broad power as the city’s executive to take emergency action when called for. There’s a major problem with such a claim. The only emergency powers a mayor is given in the City Charter and City Code that he or she can exercise unilaterally are the authority to order the emergency hiring of police officers (City Charter Section C-13-12), and to declare “the temporary closing of streets”(Section 413-34 of the City Code).
And, the only provision contained in either the City Charter or City Code pertaining to a mayor’s authority in response to a public health emergency does not appear to pertain to the current situation with e-cigarettes. Entitled “Proclamation to close public entertainment establishments,” Section 158-20 of the City Code:
(a) requires the Mayor to work in tandem with the Health Commissioner, and to issue orders as recommended, in writing by said commissioner;
(b) relates specifically to “the spread of any infectious or contagious disease”; and,
(c) limits the emergency measures to be taken to the “closing of all theaters and other similar places of public entertainment and all gatherings or assemblies of persons for any purpose.” [See City Code, Section 158-20.]
From the various statements issued by federal and state health officials, we are not dealing here with an infectious or contagious disease. And, if we were, common sense would strongly suggest that an urgent health emergency would mandate the immediate suspension of the SALE of vaping products at EXISTING vape shops, not simply a moratorium on the opening of any new vaping establishments.
Fifth, Neither Mayor Brown’s September 6th press release, nor the Feroleto resolution, addresses the steps the City of Buffalo is willing to take if the six-month research effort called for in Mr. Feroleto’s resolution leads to a conclusion that electronically-delivered nicotine presents a severe health risk to city residents. [Note: I find it a bit odd that the resolution adopted by the Common Council instructs the City of Buffalo Law Department –rather than individuals with medical expertise – to perform the investigation.] If the results are dire, I hope that Buffalo’s elected officials (and, Department of Law) will conscientiously consider the following options:
(1) “Exclusionary zoning”. In my opinion, the Common Council has the authority to amend the Green Code/UDO to prohibit vaping establishments throughout the entire city, or to restrict such operations to very limited area of the city, if the scientific facts demonstrate that the existence of vape shops present a significant health risk to Buffalonians. Although an established legal theory – exclusionary zoning – prohibits a municipality from using zoning laws to keep lower and middle socioeconomic groups out [see Berenson v. Town of New Castle, 38 NY2d 102], a city may rationally exercise its police powers (of which zoning is one) to exclude certain commercial or industrial activities in order to protect the public’s health and well-being and promote the interests of the community as a whole. [See, for example, Gernatt Asphalt Products v. Town of Sardinia, 87 NY2d 668.]
(2). “Amortization period” to phase out existing vape shops. If the Common Council were to amend the Green Code to prohibit vape shops, the existing e-cigarette establishments would become “nonconforming uses,” that is, a use that was lawfully established prior to the zoning amendment, but no longer conforms to the zoning code. Our state’s highest court has repeatedly confirmed a municipality’s authority to phase out nonconforming uses through a mechanism called (somewhat misleadingly) an “amortization period.” Under this principle, the City of Buffalo could grant existing vape shops a reasonable period of time to phase out operations as each proprietor sees fit. It would, in effect, grant e-cigarette establishments a “grace period” and, theoretically, a fair opportunity to recoup their investment.
Note: The validity of an amortization period depends on its reasonableness, but the courts have not provided a fixed formula for determining what constitutes a reasonable period. Instead, they have held that an amortization period is presumed valid, and placed a heavy burden on the owner of the nonconforming use to overcome the presumption by demonstrating “that the loss suffered is so substantial that it outweighs the public benefit to be gained by the exercise of the police power.” [See, Village of Valatie v. Smith, 83 NY2d 396.]
In other word, our Common Councilmembers and Mayor will have to give substantially more thought to their next actions regarding the future of vape shops in Buffalo than was apparent in the decision to issue a six-month moratorium on the approval of special use permits.
With all due respect,
Art Giacalone
I’ve been trying to muster the energy and focus to write a post equating the City of Buffalo’s approach to fighting Article 78 proceedings and other judicial challenges – to Common Council, Planning Board, and Zoning Board of Appeals determinations – with the parking-related sign in front of City Hall:
Or, perhaps, pen something pithy about the city’s efforts to erect “an impenetrable barrier to judicial scrutiny”:
But, blame it on an end-of-summer-malaise, I can’t quite sustain my effort.
Maybe I’ll feel the burn – in a positive or negative fashion – once Justice Mark A. Montour renders his decision in Sack v. City of Buffalo Common Council & TM Montante Development LLC, NYS Supreme Court, Erie County, Index No. I-2019-000073, where, of course, the city joins the developer in asserting the affirmative defense of lack of standing.
[Full disclosure: I represent Elmwood Village resident and activist Daniel Sack, pro bono, in State Supreme Court, asking the court to annul the Buffalo Common Council’s April 16, 2019 creation of the Linwood Lafayette Urban Development Action Area as an unlawful use of Article 16 of the State’s General Municipal Law in order to bail out TM Montante Development LLC.]
Enjoy the long weekend.
With All Due Respect,
Art Giacalone
Forty years ago, New York’s legislature enacted General Municipal Law Article 16 – the “urban development action area act” – with one goal in mind: to provide enhanced tax exemptions to private businesses to encourage redevelopment of blighted and deteriorated city-owned property. [Here’s the statute’s text: GML Article 16 Sections 690-698 .]
Article 16 offers private developers two generous incentives:
(i) a twenty-year exemption from paying city real property taxes, with 100% tax exemption for the first ten years, and negotiable terms for the second decade [see GML Section 696]; and,
(ii) loans that can be automatically reduced to zero payments for up to 30 years if multiple dwellings are rehabilitated or constructed, and the owner complies with the terms of a negotiated regulatory agreement [see GML Section 696-a].
To be eligible for this financial assistance, the follow requirements must be met: the city-owned property must be blighted or deteriorated, or becoming so, and must have been acquired by the city through condemnation, tax foreclosure, or a similar process; the present status of the property must tend to impair or arrest the sound growth and development of the city; and, the enhanced tax incentives available through Article 16 must be necessary to enable a restoration project to be undertaken.
As described in an August 1, 2019 Buffalo News article, “Civil War-era home in Fruit Belt gets one last chance to avoid demolition,” the long-vacant Italianate residence at 204 High Street – known by preservationists and neighborhood activists as the Meidenbauer House – appears to perfectly meet Article 16’s criteria.
[by AJG, 08/05/2019]
[by AJG, 08/05/2019]
[by AJG, 01-06-2016]
There is little time to waste. According to BN reporter Caitlin Dewey, “[This] battered, much-debated home in Buffalo’s Fruit Belt will fall to bulldozers this September unless city officials can find a buyer to salvage it.” The fate of this iconic Fruit Belt structure, it seems, depends on the will (whim?) of Common Council President – and Ellicott District Council Member – Darius Pridgen.
In April of this year, the Council President supported what I will charitably characterize as the “creative” use of Article 16 tax incentives to bail out financially-strapped TM Montante Development LLC at Gates Circle. [See my prior post.] During the Gates Circle proceedings, Mr. Pridgen expressly stated that he would like to see Article 16 financial assistance used in the Fruit Belt.
Well, here’s Council President Pridgen’s opportunity, if he has the will.
As reported in the August 1st newspaper article, a high-ranking (but, unidentified) city official told preservation groups that Pridgen “wants [204 High Street] demolished.” That sentiment might explain the tone of the Council President’s comment quoted in the recent Buffalo News article: “I am not shying away from the fact that if the building cannot be sold and cannot be rehabbed … then safety should trump preservation.”
Darius Pridgen is in a position – thanks to the many hats that he wears – to save the Meidenbauer House. To do so, he must place the importance of preserving this significant piece of Fruit Belt history above whatever political benefits he hopes to attain by removing this century-and-a-half old structure to make room for further advancement of the nearby medical campus.
Call on Mr. Pridgen to use his authority – as Council President, as the Councilmember in whose district 204 High Street is located, and as a director of the Buffalo Urban Renewal Agency – to begin the process (if it hasn’t already commenced) of designating an “urban development action area” eligible to obtain Article 16 incentives. The UDAA should include, at a minimum, the Meidenbauer House parcel, as well as the two vacant city-owned lots at 206 and 208 High Street immediately adjoining the east property line of 204 High Street.
Please don’t wait. Darius Pridgen can, theoretically, be reached at: (716) 851-4980; dpridgen@city-buffalo.com.
[Full disclosure: I am currently representing Elmwood Village resident and activist Daniel Sack, pro bono, in State Supreme Court, asking the court to annul the Buffalo Common Council’s April 16, 2019 creation of the Linwood Lafayette Urban Development Action Area as an unlawful use of Article 16 of the State’s General Municipal Law to bail out TM Montante Development LLC.]
With All Due Respect,
Art Giacalone
I wish I could feel as good about City Hall – more specifically, the elected and appointed officials who set policy and directly impact the lives of Buffalo’ residents – as I do about the image of that grand structure from a distance.
Here are some recent photos I’ve taken while strolling the Erie Basin Marina. Hope you enjoy them.
With all due respect,
Art Giacalone
First things first: The flag-related image that I find most offensive is that of Donald Trump hugging, kissing, and fondling the red-white-and-blue symbol of the USA.
That being said, the recent controversy surrounding Nike’s decision to pull a special edition shoe with a 13-star flag on its heel, in response to concerns expressed by activist and former NFL quarterback Colin Kaepernick that the image is offensive and tied to slavery, is both poignant and complex.
Nike’s Air Max 1 Quick Strike Fourth of July shoe
There’s a part of me that would like to push back against the usurpation of historic symbols – by hate groups and bigoted individuals – by obscuring whatever meaning they have imbued in the object by using/wearing/waving it myself. But I realize that such action by one 69-year-old Italian American male in Buffalo, New York would have miniscule impact, and might cause further offense, discomfort, and consternation.
So I won’t be lobbying for Nike to liberate the controversial shoe. But I will address hateful symbolism in my South Buffalo neighborhood.
While there may be doubts about whether Betsy Ross – an 18th-century Philadelphia seamstress – actually designed the 13-star flag, there is no uncertainty regarding Colin Kaepernick’s conclusion that the so-called “Betsy Ross flag” is being waved and worn by a segment of our society as a symbol of white supremacy. I’m confident that I have seen evidence supporting that conclusion a mere three blocks from my humble home.
40 Indian Church Rd. (taken by AJG 07-08-2019)
For the past four years, I have observed an ever-changing front porch display at 40 Indian Church Road. The house is situated a short walk from Seneca Street and Cazenovia Park at the northwest corner of Parkview Avenue and Indian Church. While the dark brown, well-kept century-old residence may initially appear welcoming, the occupants’ choice of symbols and words reflect – in my opinion – the sentiments of bigots and white supremacists.
A day or so after the initial national coverage of Nike’s decision to pull its “Air Max 1 Quick Strike Fourth of July” shoe, the facade at 40 Indian Church suddenly displayed two large flags: the “Stars and Bars”, which sports three broad stripes and is the first national flag of the Confederate States of America, and the 13-star, 13-stripe “Betsy Ross” flag.
If I had not frquently walked by the corner of Indian Church and Parkview, I might have thought that the flag-hanger was trying to highlight the dissimilar aspects of the two flags, and the fact that they couldn’t be easily mistaken for one another. But I’m well aware of the series of flags and signs at 40 Indian Church Road that have defiled the neighborhood for years. And, I could also see the carefully arranged objects resting between the pair of 3’ by 5’ flags. With that information in hand, I do not hesitate to interpret the “Stars and Bars” and “Betsy Ross flag” display at 40 Indian Church as a glorification of an America where slavery was legal and the federal government’s power was insubstantial.
Nestled amongst the flowers and front-yard knick-knacks on July 8th was/is a cluster of three hand-held flags: the well-known Confederate battle flag (with the red field and diagonal dark blue cross and white stars), the German national flag, and the “Gadsden Flag” – a historical American Revolution flag with a yellow field depicting a coiled rattlesnake and the words “DON’T TREAD ON ME.” [The Gadsden flag is often described as an example of a historic symbol co-opted by groups such as the Tea Party and the white supremacists movement.] There also was/is a choo-choo train weather vane sporting a small Confederate battle flag.
(taken by AJG 07-08-2019)
[Note: I first started noticing the DON’T TREAD ON ME proclamations a number of years ago planted in rural front yards in Wyoming County alongside anti-Obama, “Repeal the Safe Act” and anti-Cuomo signs.]
As I wrote here about two years ago [see https://withallduerespectblog.com/2017/08/21/buffalo-must-address-homegrown-bigotry/], 40 Indian Church Road and its pro-Confederacy displays are situated diagonally across the street from BEREA Church of God in Christ (C.O.G.I.C.) and its predominantly non-white attendees. Although it is no longer in sight, there was a period of time when a sign with an image of cross-hairs unambiguously proclaimed, “WARNING – IF YOU CAN READ THIS, YOU ARE IN RANGE,” reinforcing the aggressive message of the multiple Confederate and “DON’T TREAD ON ME” flags.
(taken by AJG Aug. 2017)
As recently as May 2019, 40 Indian Church Road simultaneously flaunted three large Confederate flags: the Confederate battle flag, the “Blood Stained Banner” (the third national flag of the Confederacy), and the “Stars and Bars.”
(taken by AJG 05-02-2019)
A month-and-a-half earlier, a Confederate battle flag and flag of Germany were joined by a banner that frequently is on display at 40 Indian Church Road, a Texas “COME AND TAKE IT” flag with a white field, a black star, and the silhouette of an M4 AR15 machine gun. This defiant proclamation is an updated version of a flag used in 1831, at the first battle of the Texas Revolution against Mexico, which contained the phrase “Come And Take It” and depicted a black star and a small cannon.
(taken by AJG 03-20-2019)
When not displaying Confederate flags, or co-opting provocative symbols from the past, the residents of 40 Indian Church Road have expressed their support for an individual viewed by many as a racist and white supremacist, Donald J. Trump:
(taken by AJG 10-24-2016)
I have chosen not to interact with the residents at 40 Indian Church Road when I walk or bicycle by. I’m not particularly proud of that fact, but I don’t see myself as the appropriate person to initiate a meaningful discussion. But it would be fascinating to hear a conversation between Colin Kaepernick and the folk who live at 40 Indian Church Road on the issues raised by “the Nike controversy.” Or, on a more practical level, it might be a useful step forward if a community leader were to reach out and facilitate a discussion between the person or persons who “speak” through the flags displayed at 40 Indian Church Road and the leaders and churchgoers at BEREA C.O.G.I.C.
With All Due Respect,
Art Giacalone
P.S. I wonder if this is a topic that could be raised with the organizers of the 100th Year Centennial celebration promoted in the banner currently above the church’s front door:
I’ve been trying to write a post about Buffalo’s Common Council for days now. But focusing on the ways such an uninspiring legislative body functions is, well, depressing. To boot, summer weather has finally arrived in Western New York.
So, I’m going to embrace the suggestion from a trusted friend and sometime “guardian angel.” Rather than pen another gloomy post involving Council President Darius Pridgen, South District Council Member Chris Scanlon, or Delaware District’s Joel Feroleto, etc., I will share some photographs that I took on the sunny and breezy final day of June, 2019 along Buffalo’s shoreline.
But, first, I must split a hair.
My environmental allies, the fishing public, the media, State officials, the Erie Canal Harbor Development Corporation (ECHDC), and virtually every knowledgeable and sensible WNY’er that I’ve encountered, would agree that the pictures that follow were snapped on my trek around the southern portion of Buffalo’s Outer Harbor.
However, the City of Buffalo’s Common Council, at the recommendation of Mayor Byron Brown’s Office of Strategic Planning, excluded from the definition of the “Outer Harbor” contained in the “Green Code” [officially, Uniform Development Ordinance] everything south of the former Ford complex (Terminal A and Terminal B). In doing so, our esteemed legislators have excluded, from the protections of criteria intended to protect the Outer Harbor from inappropriate future development, the following: the former Freezer-Queen parcel (where Gerry Buchheit may or may not still wish to construct a 23-story glass-and-steel tower), the Small Boat Harbor, Buffalo Harbor State Park, Gallagher Beach, the Tifft Street Pier, etc. [Note: Here’s how the city in its proposed LWRP, the ECHDC, and State DEC, interpreted the boundaries of the Outer Harbor prior to Mr. Buchheit’s proposed Queen City Landing tower at the former Freezer-Queen site: Outer Harbor defined by LWRP-ECHDC-DEC.]
In other words, the enlightened world will think of the following photos as images of Our Outer Harbor. I hope you’ll enjoy them:
And, here are my favorite images for what you will not see – the proposed 23-story tower!
With All Due Respect,
Art Giacalone
P.S. Please contact Buffalo’s Common Council Members (especially South District Councilman Christopher Scanlon), as well as the Mayor’s office, and insist that the Green Code be amended immediately to include ALL of the Outer Harbor in the “Outer Harbor boundaries” as defined at Section 5.3.3C(1)(a) of the Uniform Development Ordinance. Thank you.
