With All Due Respect

Exploring the Seneca-Iroquois National Museum in Salamanca NY

Posted by Arthur J. Giacalone on March 27, 2020

Posted in: Native American, South Buffalo, WNY Photos. Leave a comment

As a “non-essential” and semi-retired 70-year-old, I’m self-isolating these days at my 110-year-old home in South Buffalo, around the corner from Indian Church Road. I’ve lived here for nearly five years on a one-tenth acre plot of land that was, until the so-called Treaty of 1842, part of the Seneca Nation of Indians’ Buffalo Creek Reservation.

Map from 1797 showing reservation land 1979 Map of reservation land

From Abstract of Title for 17 Oschawa Ave., Buffalo, NY

While the circumstances that brought me to Oschawa Avenue were not joyful, there’s been an unexpected silver lining. I’ve taken small steps to learn about the culture and history of the indigenous peoples who lived throughout this region long before the Europeans arrived on the shores of what is now called North America. As part of that nascent process, I drove to Salamanca, New York on August 4, 2018, to attend the festive grand opening of the Seneca-Iroquois National Museum. [If interested in my posting regarding that visit, click here.]

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Wanting the opportunity to experience this living, breathing cultural center – located at 82 W. Hetzel Street, Salamanca, NY 14779 – on a quiet day, I returned to the museum on a weekday afternoon this past September. I’d like to share with you images from that excursion to help you past the time during the COVID-19 pandemic, and, of equal importance, to motivate as many of you as possible to travel to Salamanca – once we’re liberated from our crucial self-isolation – to thoroughly explore the history and culture of the Keepers of the Western Door, the People of the Great Hill. What follows will merely skim the surface.

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This tour starts with several images (by Bill Crouse, Seneca Nation, Hawk Clan) from the museum’s exhibit, “Ganö:nyök” (Giving Thanks for Everything), with occasional text to help one better understand the symbols. [For the entire “Thanksgiving Address,” please peruse “Ganö:nyök – Thanksgiving Address” , with words by Sandra Jimerson-Dowdy and illustrations by her son, the afore-mentioned Bill Crouse.]

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The cultural center has a plethora of Seneca-Iroquois crafts and artistry on display. Here’s a sampling:

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Not surprisingly, the walls overflow with information on the significant role of creation myths, clans, and both historical and contemporary figures and events (uplifting and heartbreaking).

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The 8 Seneca Clans:

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MARY JEMISON [who was once buried on sacred land in what is now called the Seneca Indian Park on Buffum Street, a block-and-a-half from my South Buffalo home]:

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The KINZUA DAMN Travesty (excerpts):

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With the positive expression, “Continuing To Be,” I’ll bring my amateurish-but-heartfelt tour to an end, hoping that it has whetted your appetite for the full experience at the Salamanca, NY museum and cultural center.

With All Due Respect,

Art Giacalone

Buffalo’s Zoning Board is entrusted with safeguarding the Fruit Belt neighborhood

Posted by Arthur J. Giacalone on March 11, 2020

Posted in: City of Buffalo, Development, Fracking, Gentrification, Green Code. Leave a comment

Open letter to Buffalo’s Zoning Board of Appeals:

On March 18^th you will be conducting a new public hearing (and, if I’m remembering correctly, your 5^th meeting) regarding “The Lawrence” – the 133-unit, 4-to-5-story apartment complex proposed by Timothy LeBoeuf and Symphony Property Management. If approved, the facility would straddle Michigan Avenue and Maple Street, and constitute a significant encroachment into the traditional Fruit Belt neighborhood.

Anyone getting their information about this project solely from the Buffalo News might feel sympathy for the poor developer. After all, according to business reporter Jonathan D. Epstein, LeBoeuf has revised the project a number of times “in response to community feedback,” but just can’t make the opposition go away. But this one-sided perspective can’t hide the facts: The original proposal was so monstrously out-of-scale and character with the Maple Street side of the project that repeated tweaking of the dimensions, setbacks, and façade still leaves a proposed development grossly out of character with the adjoining Fruit Belt neighborhood, and out of compliance with the standards set forth in the Unified Development Ordinance (a/k/a “Buffalo Green Code”).

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As you approach the March 18, 2020 public hearing, please keep the following comments in mind:

Your primary obligation as Buffalo’s zoning board is to protect our city’s neighborhoods and the integrity of our zoning laws. In the words of our state’s highest court, a zoning board of appeals “is entrusted with safeguarding the character of the neighborhood in accordance with the zoning laws.” You are responsible, not for bailing out land speculators or misguided developers overly eager to profit off of land near the Buffalo Niagara Medical Campus, but for preserving the character of the Fruit Belt neighborhood.
The important issue is not the number of times the developer has altered its plans for “The Lawrence,” but the extent to which the current proposal remains jarringly out-of-compliance with the UDO/Green Code requirements (in particular, with Maple Street’s “N-2R” residential zoning status).
And the standard to apply is not the developer’s manufactured and amorphous measuring stick – “more in line with the spirit” of the Green Code. The standard to be applied should be the lot width, density, yard requirements, and height limitations established by the Common Council for this residential district.
The developer’s proverbial “lipstick-on-a-pig” masquerade will not fool the neighborhood residents. They will know and feel the palpable difference between what the zoning law calls for – several three-story residential structures separated by side yards and green space – and a single, four-story building, 254-feet wide, with two recessed sections, consuming what had been nine Maple Street parcels.
Our state’s highest court has acknowledged multiple times that lot size and the architectural style of nearby homes are relevant factors when considering impacts on the character of a neighborhood. The Maple Street neighborhood consists almost exclusively of century-old, one- and two-family homes (with a smattering of 3-unit newer builds). None of these houses exceeds two stories in height. These traditional residences average less than 1,900 square feet in area, and sit on lots averaging 37 feet in width. In stark contrast, Mr. LeBoeuf’s development company, unconcerned that the Maple Street side of “The Lawrence” would dominate – but not invite in – its Fruit Belt neighbors, would shoehorn its proposed apartment complex into what had been 15 parcels of land.
As you know, one of the five mandatory “balancing test” criteria you must consider when deciding whether to approve or deny area variances is whether the requested variance is “substantial.” In 2002, while affirming a zoning board’s denial of two lot size and lot width variances, our state’s highest court made the following declaration: “The area variances – of at least 60% – are undisputably substantial.”
Given that 60% variances are characterized by our state’s highest court as “undisputably substantial,” how do you plan to describe – and what be the detriment to the neighborhood’s existing character – of the following requested variances for the Maple Street portion of “The Lawrence” proposal:

– A 205% variance from N-2R’s maximum-density-allowed standard (the proposed 64 units per acre vs. the 21 units per acre allowed under the Green Code)?

– A 333% variance from N-2R’s maximum-lot-width requirement (the proposed 260-foot wide lot, rather than the 60’ lot width allowed under Buffalo’s zoning law)? And,

– A 767% variance from N-2R’s minimum-total-side-yard requirement (a mere 6’ total of side yards – 3’ at each end – rather than 52-foot total required by the Green Code)?

Please remember, as you perform your “balancing test” (measuring the benefit to the developer against the detriment to the neighborhood) that the “benefit” Mr. LeBoeuf is seeking from you is protection from a self-created difficulty: In 2017, Symphony Development, as speculators, bought just over an acre of land near the Medical Campus, spending approximately $1.7 million dollars for 15 parcels which were assessed at that time at around $4,000 apiece. They knew, or should have known, the limitations for the property established under the Green Code. Now, they are desperate and whining, insisting that they need this out-of-scale and out-of-character apartment complex in order to make what they consider an appropriate profit.
By saying “Yes” to this developer, you will be incentivizing even more speculation and displacement throughout the Fruit Belt. Your duty is to protect the neighborhood, not bail out the developer.

I trust that you will do the right thing, acknowledge your obligation to safeguard the character of the Fruit Belt neighborhood, and deny the Maple Street variances.

With All Due Respect,

Art Giacalone

Barking up the right tree – in Caz Park

Posted by Arthur J. Giacalone on March 8, 2020

Posted in: Cazenovia Park, Olmsted Parks, South Buffalo, WNY Photos. 3 Comments

The lawyering side of my multi-fractured personality has spent much too much time of late howling at the moon and tilting at windmills. So, having dispatched my latest professional task via USPS late Saturday morning, I walked to my neighborhood Olmsted Park – South Buffalo’s Cazenovia Park – on a sunny and brisk March afternoon with my aging iPhone inconspicuously resting in my front pocket. I tried for a few minutes, but I couldn’t resist the urge to engage in a photo shoot that has been on my mind the past couple of weeks, something I considered calling “Barking up the RIGHT tree in Caz Park.”

I realize that this collection of images may not be for everyone, but I’m taking the risk of sharing it nonetheless in hopes that some of you might enjoy it. Here it is:

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With All Due Respect,

Art Giacalone

P.S. Here’s a bonus photo, taken in 2005, of a tree that caught my eye in a fairly well-known Olmsted Park in NYC:

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Living the high life at Buchheit Village

Posted by Arthur J. Giacalone on February 22, 2020

Posted in: Buffalo News, City of Buffalo, Development, Gerald A. Buchheit Jr., Jonathan D. Epstein, South Buffalo, Waterfront. Leave a comment

Gerald Buchheit is the “main man” at Queen City Landing. [It’s a limited liability company, so we don’t know who he is or isn’t partnering with these days.]

It was less than three months ago that Buchheit’s spokesperson, Phil Pantano, was quoted in the Buffalo News claiming that “Jerry” had used the two years since the city’s 2016/2017 approvals for his 23-story tower “… to really review and refine his vision and plan for the project.” Then, a couple weeks later, on December 4, 2019, Buffalo’s Common Council was sent a Letter of Intent [LOI] by Mr. Buchheit’s counsel, Adam Walters, admitting that (despite two years of reviewing and refining his vision) Queen City Landing had zero plans for the rear 12-acres of the 20-acre Fuhrmann Boulevard site:

“… Any future redevelopment of the remaining approximately 12 acres of the site will be designed and progressed on market demand in a way that furthers QCL’s overall redevelopment goals consistent with the PUD. However, at this time, no further redevelopment plans for the site have been developed.” [Emphasis added.]

The same admissions were made on behalf of QCL/Buchheit at January 2020 proceedings – in furtherance of Queen City Landing’s flawed PUD application – before the City Planning Board and the Common Council’s Legislation Committee.

But now – just a month or so later – we all are asked to believe that Mr. Buchheit and his team have a sincere, carefully crafted, and doable “master plan” for the entire 20-acre QCL site. Why, we have even been provided a rendering of what Jim Fink and Business First Buffalo say is Buchheit’s intention “to create a village” (with a $180M price tag):

QCL's rendering total new proposal [a/k/a “Buchheit Village”]

The Buffalo News recently reported on this latest iteration of Mr. Buchheit’s “vision” for the former Freezer Queen site. Here’s how the BN’s business reporter, Jonathan D. Epstein, describes Mr. Buchheit and his plans:

The developer behind the controversial Queen City Landing residential tower on the Outer Harbor is doubling-down on his bet, proposing two more six-story apartment buildings and a cluster of 32 townhouses on the rest of the peninsula that juts into the water.

Gerald Buchheit, whose pending proposal for a 20-story building is still mired in controversy, now says he wants to add two more phases to the project, located at 975 Fuhrmann Blvd.

His concept would ultimately add another 178 apartments – on top of the 206 he already plans in the first phase – along with additional restaurants, terraces and parking, according to documents that Buchheit has submitted to the city. …

But I really don’t think the Buffalo News, or the Queen City Landing website, provides anyone who might be curious about the proposed project the full picture. So I wrote a letter to the editor, and my tongue-in-cheek musings were included in the February 22, 2020 print version of our region’s largest newspaper under the headline, “Queen City Landing is not the gem it seems.”

If you’re interested n reading my “Everybody’s column” submission, I’m inserting it below – with the title I had proposed – and adding links to various assertions that I make.

Living the high life at Buchheit Village

Dear Editor,

WANTED: 384 adventurous renters and condominium owners to live in “Buchheit Village” on Buffalo’s Outer Harbor. The views are great, and you’ll have the opportunity to enjoy a variety of extras:

First, impress your friends by pointing to your home on FEMA’s flood plain maps and bragging about the “Special Flood Hazard Area” designation. See. FEMA FIRMETTE QCL-Small Boat Harbor Area Site_Specific[22528] (You might refrain from telling them about the sky-high annual premium for your mandatory flood insurance policy.)

Second, when the meteorologists warn that a wind-driven, 8- 12- or 15-foot wall of water or seiche will be crushing the Lake Erie shoreline, invite your friends over to hunker down with you and experience the awesome power of nature.

[Here’s how Our Outer Harbor‘s website describes the recent “seiche” activity along Buffalo’s Outer Harbor:

Lake Erie Seiche

A seiche is like a tsunami, except that it is not caused by an earthquake. Lake Erie is shaped like a bathtub. Storms from the west push the water toward the east (Buffalo) and this causes a rise in water levels at the eastern end of Lake Erie. Seiches occur frequently on Lake Erie, but they are generally small, and unless you are on the water a lot you may not even notice. We have about 50 seiches a year most of them under 2 feet. Lake water tends to slosh back and forth between the east and west ends of Lake Erie. Currently Great Lakes water levels including Lake Erie’s are at record highs. Last spring the Outer Harbor experienced a powerful storm that pushed a seiche onto the shoreline and inland. This storm surge was characterized by huge ice flows and jams that wreaked havoc in places like Times Beach Nature Preserve and Canalside. The October 28-29 2019 seiche appeared to be about 10 feet at the Outer Harbor on top of historic high water in Lake Erie. The 2nd seiche on October 31- November 1 2019 included high wind gusts of over 70 mph. It created enormous damage along the entire outer harbor, at Fort Erie and along the Niagara River shoreline. Canalside was also and flooded.

Third, if you enjoy using your car every time you need groceries, when it’s time to refill a prescription, or your clothes need dry-cleaning, you’ll be in heaven living in a development that QCL’s traffic consultant describes as “Car-Dependent” with a “Walk Score” of 1 (on a scale of 0 to 100, with 100 being most walkable).

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Fourth, if you enjoy a constant parade of cars and the unpleasant smell of exhaust fumes, you can pack a picnic basket, sit on a park bench near the site’s entrance, and watch your neighbors and the public pulling in and out of the development’s 777 parking spaces.

Fifth, if you’re a bit morbid, you can entertain yourself most mornings counting the carcasses of migrating birds who got disoriented by the lights of the 20-story tower the previous evening. [See, for example, HuffPost article re Galveston bird kill May 2017.]

You better hurry. This perfect place to live will fill up fast.

Sincerely,

Arthur J. Giacalone

With All Due Respect,

Art Giacalone

[Note: QCL’s 2018 Brownfield cleanup of the site only involved the front 8 acres, where the 20-story tower and 222-vehicle parking lot are proposed. Neither the City of Buffalo, nor the public, has adequate information to determine what type of development the DEC will consider appropriate for the rear 12 acres.]

Buffalo’s Zoning Administrator acts like the Facilitator-in-Chief

Posted by Arthur J. Giacalone on January 31, 2020

Posted in: Byron Brown, City of Buffalo, Development, Green Code, Nadine Marrero, SEQRA, Zoning Law. 1 Comment

[Update: When I wrote this post in late January, I whimsically suggested how nice it would be to hold a forum to discuss the failing’s of Buffalo City Hall’s approach to zoning and development proposals. Well, I had my wish substantially come true. On March 5, 2020, I had the honor of sharing the (politically-correct, non-elevated) dais with Jessie Fisher, Preservation Buffalo Niagara’s Executive Director, and Partnership for the Public Good’s Sam Magavern, for a Buffalo Commons Workshop titled, “Local Land Use, Green Code, and Zoning.” More than 30 people attended the two-hour lunchtime event, and the discussion was spirited (if not, overly encouraging). Here’s my hand-out: March 5 2020 Workshop on Land Use Green Code and Zoning, where I reflect on how similar the problems were 13 years ago when I first addressed the “uneven playing field” residents face at a Continued Legal Education seminar, and then proceed to the topic of this post: the role Buffalo’s Zoning Administrator/Director of Planning, Nadine Marrero, plays as the developer’s facilitator-in-chief.

Buffalo’s Division of Planning & Zoning is part of “The Mayor’s Office of Strategic Planning” – that’s Mayor Byron Brown, of course. The OSP is headed by Brendan R. Mehaffy. And, the head of the Planning Division is its Director of Planning, Nadine Marrero. According to the OSP’s home page, “The Division of Planning & Zoning oversees the administration of the City’s development regulatory boards (Planning Board, Zoning Board of Appeals, and Historic Preservation Board) and engages the community in planning initiatives. ”

Director of Planning Marrero wears a number of hats, having been named “Zoning Administrator” under the City of Buffalo’s Unified Development Ordinance (UDO) [unofficially, Buffalo’s Green Code].

Having observed Ms. Marrero’s handling of her responsibilities the past several years [before and after the 2017 adoption of the UDO/Green Code], I was rather astonished recently to read the following “Objective” of the Planning Division: “Ensure fair and equitable administration of land use policies and regulatory boards.”

Frankly, I would have sworn that the objective – or, perhaps, the job description for Mayor Brown’s Zoning Administrator – was more akin to: “Serve as facilitator-in-chief to developers as they circumvent the requirements of the UDO and State Environmental Quality Review Act [SEQRA].”

It would be wonderful if we could hold a public forum where residents and community groups would have the opportunity to evaluate the performance of The Mayor’s Office of Strategic Planning and Division of Planning & Zoning in meeting the objective of ensuring fair and equitable administration of land use policies and regulatory boards. [We could even give city officials and developers’ attorneys three minutes apiece to respond to the public’s comments and concerns.]

Here’s my first draft of a summary of topics to discuss at such a forum:

Title: Do Residents/Neighborhoods confront an Unfair & Inequitable Zoning/Planning Process?

Purpose of forum: Evaluate Division of Planning’s Stated Objective to “Ensure fair and equitable administration of land use and regulatory boards.”

Assumption: Residents/Neighborhoods/Community Groups face an uneven playing field.

A Major Cause: The Planning Director/Zoning Administrator, and much of her staff, function as developers’ Facilitators-in-Chief as proposed projects navigate the zoning, planning, and environmental review process.

Surprising Fact: The Zoning Administrator’s listed duties do not include reviewing applications to determine and/or assure compliance with Uniform Development Ordinance standards.

Observation: Proposed projects are given advantageous treatment at each step in the zoning/planning process:

A. Prior to Public Announcement of a Zoning Matter

– “Pre-application conferences” serve as strategy sessions where staff and developers’ representatives discuss ways to get around UDO restrictions, and where there is no apparent effort to conform proposals to UDO/Green Code standards.

– E.g., Queen City Landing’s proposed PUD to circumvent 6-story, 90’ height limits

– E.g., 983 Michigan Ave. apartment complex (“The Lawrence”), which requires 11 categories of variances – many of which are substantial – in 2 zoning districts.

– Zoning Administrator prematurely deems applications “complete” – and, therefore, prematurely schedules hearings and meetings – despite errors and omissions in the developers’ submitted papers.

– Zoning Administrator manipulates the order in which a project’s multiple applications are considered.

– E.g., Planning Bd.’s consideration of QCL’s PUD/rezoning application, SEQRA determination and LWRP consistency review separate from the Planning Bd.’s public hearing on major site plan review, thereby eliminating the public’s opportunity to address three critical topics

B. Scheduling and Noticing of Public Hearings/Meetings

– Scheduling back-to-back public meetings/hearings, which places a large burden on the public, and eliminates the likelihood that the Common Council and/or the public will receive the Planning Bd.’s written recommendations prior to the next public hearing.

– E.g., 1/13/20, 4pm, Pl. Bd. public meeting (not “public hearing”) on Queen City Landing’s Planned Unit Development (PUD)/rezoning request, SEQRA determination of significance and & LWRP consistency reviews; the following day, at 1pm, the Common Council Legislation Committee’s public hearing on the proposed PUD.

– Scheduling of Pl. Bd. site plan public hearings despite ZBA’s tabling of variance requests.

– E.g., on 1/27/20, Pl. Bd. conducts public hearing on 943 Michigan Ave. project (“The Lawrence”) despite ZBA’s tabling of variance application 1/15/20. As a result, site plan under consideration violates more than a dozen UDO standards.

– Note: UDO requires the Pl. Bd. to make a written finding on “approval standards,” the 1st of which is: “The project complies with all applicable standards of this Ordinance.”

– Publishing and mailing of inadequate notices for public hearings.

– E.g., no indication “943 Michigan Ave. – Construct multiple-unit residential building” application involved 129 units, needed 11 categories of substantial variances, and included 9 parcels on Maple St. – N.B. Under UDO, absentee landlords, not tenants, receive mailed notices

– On-line material in a board or committee’s “Journal” are often not available until 3 or 4 days prior to a scheduled public hearing; the “Journals” are frequently modified shortly before a public hearing without the public’s knowledge of the additional material

C. Last-minute “support” provided by OSP staff to Pl. Bd., ZBA members (but, not available to the public).

– Staff Reports provided to members of Pl. Bd. and ZBA are markedly one-sided (for example), disregarding perspective of neighbors, and community organizations.

– OSP staff, without first receiving instructions from the “lead agency,” draft SEQRA Determinations of Significance, and, nearly 100% of the time, end the SEQRA review by providing a Negative Declaration.

– Neither the Staff Reports, nor Negative Declarations, are informed by the public’s comments, concerns

D. Public hearings fail to provide the public with an adequate opportunity to address projects.

– Due to the disadvantages noted above, the public is greatly handicapped at public hearings.

– Virtually all public hearings involve a 3-minute limit for each individual opposing a project.

– E.g. Residents and activists were given 3 minutes at the 1/14/20 public hearing on the QCL PUD at the Common Council Legislation Committee’s (conducted by Councilmember Feroleto) to address approximately 600 pages of documents submitted by the applicant. The Chair would not allow the public an opportunity to rebut the “reply” statements made by the applicant’s representatives (but did, reluctantly, leave the public hearing open).

– Public hearings are closed despite board’s request for additional info from developers.

E. Other examples. …

If you think such a public forum would be useful, or wish to share your comments with the appropriate officials, you can (theoretically) reach Nadine Marrero at nmarrero@city-buffalo.com, and Brendan Mehaffy at bmehaffy@city-buffalo.com.

With All Due Respect,

Art Giacalone

Queen City Landing “PUD” is as ludicrous as Common Council’s “blighted” Gates Circle

Posted by Arthur J. Giacalone on January 27, 2020

Posted in: Buffalo News, City of Buffalo, Development, Gerald A. Buchheit Jr., South Buffalo, Waterfront. Leave a comment

The Buffalo News editorial staff recently expressed support for Gerry Buchheit’s efforts to have his 20-acre Outer Harbor parcel designated a “Planned Unit Development” [PUD]zoning district by Buffalo’s Common Council. Apparently, no one at One News Plaza took time to educate themselves on the purpose and criteria for creating a PUD district. In fact, it seems as if the opinion writers at our region’s largest newspaper (despite the importance of their role) are caught in a silo where they don’t bother to go beyond the myopic words of the paper’s business reporters when reaching a position on important development matters.

My effort to share a different perspective with BN’s readership (and, the editorial staff) – by way of a letter-to-the-editor – appears not to have been deemed worthy of print. [Although the Sunday Buffalo News did find room for a letter from an individual who refers to opponents of the 20-story Queen City Landing tower as “narrow-minded, blind and ‘my way or no way’ fanatics,” as well as “hypocrites.”]

So, I’m sharing my letter-to-the-editor with the readers of this blog:

January 23, 2019

Outer Harbor “PUD” as ludicrous as “blighted” Gates Circle

Dear Editor,

Migratory birds are disoriented by the bright lights of a stand-alone tower, especially in inclement weather. Perhaps that’s what happened to the Buffalo News editorial staff when Queen City Landing’s proposed 20-story Outer Harbor project found itself in the midst of a seiche of opposition at a recent hearing.

It was last November when a Buffalo News editorial perceived the illogic in designating a portion of Gates Circle, one of Buffalo’s finest neighborhoods. “blighted.” It viewed with 20-20 vision the problem of a city “pushing legal boundaries” to make huge tax breaks available to a financially-strapped developer. And, it called City Hall’s maneuver a “sham” – noting that “words matter,” and praising a court ruling, which had declared the designation as contrary to the law’s intent, “a victory for common sense.”

Three months later, a News editorial appears blind to a similar display of City Hall’s arrogance and willingness to distort the law to help out a developer, Queen City Landing’s proposed “Planned Unit Development” adjacent to Lake Erie’s Small Boat Harbor.

Prior uses of the PUD zoning device in Buffalo involve multiple buildings, on multiple parcels, with a variety of identified uses and architectural styling. They represented, at least arguably, “planned” and “unified” development, as required by Buffalo’s Green Code.

In contrast, Mr. Buchheit is masquerading one mixed-use tower standing on the front 8 acres of a 20-acre parcel, and zero plans for the rear 12 acres, as a PUD. This illogical proposal was not born of creativity and innovation, the objective of a Planned Unit Development, but of Buchheit’s desperate need to circumvent the Green Code’s six-story, 90-foot height limits for his Fuhrmann Blvd. property.

As with Gates Circle, words matter, and common sense and the law’s intent must prevail.

With All Due Respect,

Art Giacalone

Buffalo’s Planning Board and Public are owed a balanced Staff Report on Buchheit’s QCL project

Posted by Arthur J. Giacalone on January 20, 2020

Posted in: City of Buffalo, Development, Gerald A. Buchheit Jr., Green Code, South Buffalo, Waterfront, Zoning Law. 1 Comment

[On January 13, 2020, Mayor Byron Brown’s Office of Strategic Planning (OSP) provided its “Staff Report” – transcribed in its entirety below – regarding Gerald Buchheit’s proposed 20-story tower to the City Planning Board shortly before the opening of the board’s meeting. The Planning Board was scheduled to determine – without public input – three important matters relating to Queen City Landing’s proposed Planned Unit Development (PUD)/rezoning application at 975-1005 Fuhrmann Blvd.: first, recommend to the Common Council whether to approve or disapprove the proposed PUD; second, render its SEQRA “Determination of Significance” deciding whether to require the applicant to prepare a draft Environmental Impact Statement or end the environmental review; and, third, conduct a “Consistency Review” to determine if the proposed project complies with the goals and objectives of the City’s Local Waterfront Revitalization Program (LWRP).

In theory, the staff report is intended as an objective assessment of the proposed project by the city’s planning office professionals. From my experience, the report is heavily relied upon by Planning Board members as they review a pending application, and it often forms the bases for the board’s “findings of fact” on a pending application.

It is clear to me that staff report on the QCL project is not a balanced assessment of the PUD application. To help correct that deficiency, I will annotate the “staff report” below to provide additional information or perspectives not shared by the OSP staff with the Planning Board members. To limit any confusion, the text of the staff report will be underlined below. My bracketed and italicized comments will follow each paragraph of the staff report.

For the record, I have opposed (see, for example, Giacalone Letter to Common Council 01-02-20), and have assisted environmentalists and Outer Harbor activists in opposing, the various iterations of Mr. Buchheit’s Queen City Landing tower projects. Thanks. Arthur J. Giacalone, Attorney-at-Law and South Buffalo resident.]

CITY OF BUFFALO

PLANNED UNIT DEVELOPMENT

Property Location/Name: Queen City Landing (975 Fuhrmann Blvd.)

Proposed Use: Mixed Use building

Existing Zoning: N-1S Secondary Employment center/C-W Waterfront corridor

Surrounding Zoning: N-1S, D-OG (Open Space – Green)

Existing Land Use: Vacant land

Surrounding Land Use: Vacant land, park, marina

Action Requested: Planned Unit Development

Date of Public Meeting: January 13, 2020

Summary

The proposed project includes the development of a 20-story mixed use building on the former Freezer Queen industrial site along the Lake Erie waterfront. The project includes 35,000 SF of restaurant, retail, and commercial space on the ground floor, structured parking on floors two through five, 19,000 SF of restaurant/banquet space of [sic] the sixth floor, and 206 residential units above the sixth floor. In addition, the site will include a ground floor waterfront terrace, surface parking, public bike and walking paths that connect [with] the existing multi-use waterfront trail along Fuhrmann Blvd., as well as a public marina.

[- The proposed 54,000 SF of restaurant, retail, commercial and banquet space more than triples the 16,615 SF of non-residential space approved in 2016/2017.

– To accommodate the increased commercial/non-residential activities, the 2019 project proposes a 61% increase in total parking spaces – from 355 to 572 – including a doubling in surface parking spaces from 111 to 222-vehicles, requiring a surface parking lot covering more than an acre-and-a-half of land.

– The number of residential units has increased from 198 to 206.]

Background

The City previously approved a plan for a 23-story building in May 2016 (the current plan reduces the building height by three stories/48 feet, integrates the stand along [sic] parking structure into the principal building, reduces the building footprint and impervious coverage of the site, while increasing the green space).

[- The 2016 and 2017 approvals of the prior project were approved under the former zoning ordinance. Pursuant to Section 511-151 (“Limitations on approval”) of the former code, the Planning Board’s January 3, 2017 amended site plan approval was rendered invalid when the applicant failed to obtain a building permit and commence construction within one year of the site plan’s issuance. In accordance with UDO Section 1.3.3B (“Previously Granted Approvals”), the project’s previous approval is revoked, and the provisions of the UDO govern.

– While the combined footprint of the 3-story standalone parking garage plus the 23-story tower approved in 2016 is smaller than the footprint of the proposed structure, the footprint of the proposed structure is twice the footprint (width-times-the-length) of the previously approved tower (approx. 34,800 SF vs. approx. 17,480 SF), the proposed structure is 100 feet longer than the 2016/2017 version (290’ vs. 190’), and the gross floor area of proposed structure is 67,000 SF greater than the 23-story tower.

– If the applicant’s FEAF is correct, the decrease in impervious surfaces is less than one-seventh of an acre (0.14 AC), from 3.88 AC to 3.74 AC. However, if QCL’s Nov. 2019 site plan is accurate when it identifies the impervious area as 3.85 AC, the decrease is only 0.03 AC.

– As a result of the significantly larger footprint of the proposed building, and the doubling of service parking spaces, the increase in greenspace/pervious areas is less than one-seventh of an acre (0.14 AC).]

Consistency with the Comprehensive Plan

Standard 1: The planned unit development is consistent with the spirit and intent of this Ordinance and the Comprehensive Plan.

Analysis: The proposed project is consistent with the Comprehensive Plan’s policy of Transforming Buffalo’s Economy and specifically its priority to clean up and redevelop brownfield sites. In addition, the project may align with the Comprehensive Plan’s policy to Restore Ellicott, Olmstead, and the Waterfront, specifically its priority to reconnect to the waterfront by improving waterfront access and leveraging waterfront assets for appropriate economic development. However, there is some public sentiment that residential development on the Outer Harbor is inappropriate but the use of the site as mixed use is allowed by right.

[- In 2006, the Common Council adopted “Buffalo’s Comprehensive Plan – Queen City in the 21^st Century.” It was based on “a set of key principles”: sustainability, smart growth , and two simple rules, “fix the basics” of municipal service delivery and maintenance of the urban environment, and “build on the assets” of the community and great urban heritage. It can be argued that the PUD application is inconsistent with most, if not all, of these key principles.

– It may be a stretch to claim that the proposed project is consistent with the Comprehensive Plan’s policy of “Transforming Buffalo’s Economy.” T he full statement of the policy is as follows: “3. Transform the city’s economy to meet the needs and opportunities of the 21^st century and to provide the material basis for the revitalization of the whole city.” The proposed PUD’s combination of residential units, retail, and restaurant/banquet space is hardly transformative, or focused on the city’s 21^st century needs and opportunities.

– The UDO defines the city’s comprehensive plan as much more than any one document (as implied by the staff report’s reliance on a single policy from the 2006 “Queen City in the 21^st Century”): That is, “Comprehensive plan. The materials, written and/or graphic, including maps, charts, studies, resolutions, reports, and other descriptive materials that identify the goals, objectives, principles, guidelines, policies, standards, devices, and instruments for the immediate and long-range protection, enhancement, growth, and development of the City of Buffalo, which have been adopted and may be amended by the City in accordance with the General City Law.” The UDO itself, and Buffalo’s LWRP (Local Waterfront Revitalization Program) fall within this definition of the city’s comprehensive plan.

– A strong argument could be made that the PUD application is inconsistent with numerous policies and objectives set forth in Buffalo’s LWRP, including, for example:

– Protect and enhance features which contribute to the LWRA’s scenic quality (such as marinas, piers, wharfs, sunsets, and unique waterfront landscapes).

– Protect significant fish and wildlife coastal habitats (Small Boat Harbor, Tifft Nature Preserve, and Times Beach Nature Preserve).

– Protect the Niagara River Globally Significant Important Bird Area.

– Avoid disruptions to bird migration by the maximum extent practicable.

– Maximize coastal resiliency.

– Consider potential impacts of climate change on Buffalo’s coastal area.

– Minimize property damage and risk to humans from flooding and erosion.

– Maintain and protect shoreline protective features.]

The proposed PUD is located within the UDO’s N-1S Secondary Employment zone. Per the UDO, the N-1S zone addresses “mixed use employment centers primarily located along the New York Central Belt Line, often defined by mid-rise and large footprint industrial structures.” While the proposed PUD is consistent with the N-1S zone’s call for intensive mixed-use development, it should be noted that the site is not located along the Belt Line and its context is not defined by mid-rise industrial buildings (though the site once contained such a structure).

[- When determining whether the proposed construction of a 20-story building at 975/1005 Fuhrmann Blvd. is inconsistent with the spirit and intent of the UDO, one cannot overlook the fact that the following standards were established by the Common Council for the N-1S zoning district: the exclusion of “Tower” as a permitted building type; and, the 6-story and 90-foot height limited for the allowed building types, “loft building” and “civic building.” More broadly, the UDO’s exclusion of “towers” from all districts other than N-1D (the downtown district) reflects an intent to exclude buildings of the proposed 20-story structure’s substantial height and density from the N-1S and all districts other than N-1D.

– “Building Type” is not among the regulatory categories that an applicant may apply to waive or modify under the UDO’s PUD provisions. As noted, a tower is a building type not permitted in the N-1S zone. The public has strongly questioned whether the applicant’s characterization of its 20-story building as a “loft” is an improper effort to circumvent the UDO’s prohibition against constructing a tower in the N-1S zone, and the Common Council’s lack of authority to waive a” building type” restriction when establishing a PUD. It should be noted that, under the UDO, the maximum height allowed for a loft building in any zone is 6 stories, and the applicant’s proposed 20-story “loft” lacks the following features associated with lofts: naturally lit, tall ceilings, expansive windows, and light wells.

– It should also be noted that the applicant’s architect, Duncan Bates, referred to the proposed structure as a “residential tower” when testifying at the January 14, 2020 public hearing before Common Council’s legislative committee.]

Land Use

Standards (sic). 2. The planned unit development allows for the creative and innovative development of property that would otherwise not be possible through strict application of the standards of this Ordinance. 5. The planned unit development will maximize transportation efficiency. 6. Whether the planned unit development will provide for public benefits not otherwise required by this Ordinance. 7. The planned unit development will be sufficiently served by or provide services, utilities, and infrastructure as required by the Buffalo Sewer Authority, Buffalo Water Board, Department of Public Works, Parks, and Streets, and Fire Department.

Page 1 of 2

Analysis: The proposed PUD allows for additional building height in order to take advantage of the vast waterfront views, while incorporating a mix of uses including restaurant, retail, and other commercial activities which would likely serve as a waterfront attraction. The waterfront site is accessed by one road and would generally require automobile access due to limited transportation alternatives in the area most of the year. The applicant states the public benefit includes public pathways which will connect to the existing multi-use pathway along Fuhrman (sic) Boulevard and will loop around the proposed building which would provide additional public waterfront access. The project also proposes a public marina and a waterfront terrace at the ground level as a public benefit or amenity. As stated in the previous (sic) adopted negative declaration the proposed PUD will be sufficiently served by or provide services, utilities, and infrastructure as required by the Buffalo Sewer Authority, Buffalo Water Board, Department of Public Works, Parks, and Streets, and Fire Department though additional extensions may be required to service the site.

[- The proposed PUD does not appear to offer “creative and innovative development” of the parcel, and differs little conceptually from the project approved under the old zoning ordinance. Combining residential, retail and restaurant/event space in the same building is hardly creative or innovative when each of the uses is permitted in the N-1S zone, and the concept of “mixed-use” buildings is a cornerstone of the UDO/Green Code.

– The applicant’s Letter of Intent states that the sixth-story restaurant/banquet space will provide guests “with spectacular views of the waterfront,” and “will impress guests with a unique and picturesque experience.” Given the scenic waterfront views available from the sixth floor, it appears that occupants of floors 7 through 20 could be afforded notable waterfront views without being located on land situated in close proximity to the Lake Erie shoreline.

– The PUD proposal fails to offer the noteworthy types of public amenities listed in the UDO, such as affordable housing units, below-market commercial incubator space, green building systems, adaptive reuse of heritage resources, reserved or dedicated open space, accessible building and site exceeding USAB minimum standards, use of renewable energy sources, water conservation and reuse, or restoration of natural features. Also, the Brownfield cleanup of the site occurred prior to the proposed PUD application, and, therefore, would not be a product of the creation of the PUD.

– The applicant does not dedicate any part of the site to public use, but is merely allowing the public to bike or walk on its multi-use path and use its boat slips. These same amenities – a bike/walking path looping around the principal building, and 300 feet of boat slips – were part of the 2016/2017 project. There appears to be no reason that they could not be a part of a project under the UDO without creation of the requested PUD.

– It is difficulty to suggest that the proposed PUD would “maximize transportation efficiency” when the site would generally require automobile access due to limited transportation alternatives in the area most of the year. The applicant’s TDMP describes the project site as “Car-Dependent” with “Almost all errands requiring a car” and a “Walk Score” of 1 on a scale of 0 to 100 (with 100 representing the highest rated location), and as “Minimal Transit” with a “Transit Score” of 21 out of 100. While “it is possible to get on a bus,” the closest bus stop is near the Small Boat Harbor, and no current bus route is available to stop at the project site.]

Compatibility

Standard 3. The planned unit development will be compatible with, and not impede the normal and orderly development and improvement of, adjacent property. 4. The planned unit development will promote a coordinated site and building design to enhance the relationship of buildings to public space, the interconnectedness of rights-of-way and blocks, and social vitality.

Analysis: Much of the surrounding area is zoned for Open Space and will therefore have very limited development. The provision of residential adjacent to open space could provide a built in constituency and user group for the open space or could potential (sic) create conflicts depending on the use of the open space. The project will provide public access pathways along the waterfront that will connect to nearby waterfront attractions via the existing multi-use waterfront trail. A public marina will be incorporated, providing a public amenity. Although the PUD shows how the site would relate to the public right-of-way it lacks detail about the development of the rest of the peninsula which could help to determine if the entire parcel will be developed in a coordinated manner.

Page 2 of 2 [End of Staff Report]

[- Strong public sentiment has been expressed that the fact that much of the surrounding area is zoned for – and, actually used as – open space, marinas, parks, etc., underscores the incompatibility of the proposed project with nearby property. Note that under the UDO, “a new tower may not cast new shadows upon any D-OG, D-OS, or D-ON zone from 12 noon to 2 pm on September 21.” The adjacent Small Boat Harbor is zoned D-OG (Green).

– There is a stark contrast in size, scale, and character of the proposed PUD building to adjacent and nearby structures, and the nature of the nearby parks, marinas, walkways, piers, etc. The applicant has not provided tangible visual assessments, such as graphic viewshed and line-of-sight analyses, or more sophisticated visual simulations and digital viewshed analyses, from any of the potentially impacted areas of the Lake Erie shoreline, to facilitate an objective assessment of the proposed project’s impacts on the existing character and scenic quality of the Local Waterfront Revitalization Area.

– It appears that the vehicular traffic generated by the proposed project would impede the normal and orderly use of the adjacent public bike/pedestrian path. If we use the TDMP’s “baseline site generated trips” figure of a total of 346 vehicle trips during the weekday PM peak hour, a vehicle entering or exiting the project site will be crossing the adjoining public bike/pedestrian path once every 10.4 seconds. If one were to treat the “modal share objective travel demand” figure of 267 vehicle trips entering or exiting the project site during the weekday PM peak hour as realistic, 267 vehicle trips per hour translates to one vehicle crossing the adjoining bike/pedestrian path every 13.4 seconds.

– The popularity of the Outer Harbor for a wide variety of outdoor activities, and the frequency of bumper-to-bumper traffic on Fuhrmann Blvd. and full parking lots when events are held there, suggest that its open space and facilities are not being underutilized. The applicant has not addressed the impacts during the 18-month projected construction period of construction-related vehicles on either the adjoining street or public bike/pedestrian path.

– There is strong public sentiment that proposing a one-building PUD on 8 acres of the site, while the applicant acknowledges that it has no redevelopment plans for the site’s remaining 12 acres, contradicts the UDO’s intent that a PUD be a “planned” and “unified” development. Allowing the applicant to belatedly submit a proposed “plan” for the rear 12 acres could weaken the UDO’s objectives of creating a planned and coordinated PUD district. ]

With All Due Respect,

Art Giacalone

P.S. Below is a rendering of the QCL proposal, followed by some photos of the Outer Harbor shoreline, paths, marinas and parks.

QCL 2019 rendering