Green Code’s Final Generic EIS threatens SEQRA’s purposes now and in the future

Posted by Arthur J. Giacalone on September 26, 2016
Posted in: City of Buffalo, Green Code. Leave a comment

Common Council’s Legislation Committee will consider whether to “accept as complete” Buffalo Green Code’s FGEIS on Tuesday, September 27, 2016 at 2:00 PM.

You won’t find it yet at the City of Buffalo’s official Green Code website. But, five months after the public comment period for the Green Code’s Draft Generic Environmental Impact Statement (DGEIS) ended, the Green Code’s Final Generic Environmental Impact Statement (FGEIS) has been sent by Mayor Byron Brown’s Office of Strategic Planning to the City’s Common Council for its review and acceptance.

The public can get its first glimpse at the FGEIS – the penultimate step in the State Environmental Quality Review Act (SEQRA) process – by going to the Committee on Legislation’s September 27, 2016 agenda and clicking on FGEIS and its related documents.

It is unclear whether the public will be given the opportunity to speak at the September 27th Legislation Committee meeting – although the Head of the Mayor’s Office of Strategic Planning, Brendan Mehaffy, and the City’s Nadine Marrero, are scheduled to speak in support of a resolution in which “the Common Council Accepts the FGEIS as Complete.” So it is imperative to contact David Franczyk, the Legislation Committee’s Chairman, and your own Common Council member IMMEDIATELY if you are concerned about any of the issues that follow: [Their email addresses are: dpridgen@city-buffalo.com; rfontana@city-buffalo.com; dfranczyk@city-buffalo.com; jgolombek@city-buffalo.com; cscanlon@city-buffalo.com; jferoleto@city-buffalo.com; darivera@city-buffalo.com; rwyatt@city-buffalo.com; uwingo@city-buffalo.com.] 

I.  The FGEIS is NOT, in fact, “complete.”

The Environmental Impact Statement (EIS) for the “Green Code” [officially, the Buffalo Consolidated Development Framework (BCDF)] is “generic,” that is, it is more general than site or project specific EISs. [See 6 NYCRR 617.10.] It is lawful for the City to use a “generic” EIS when considering new development or zoning regulations such as the Green Code when the environmental analysis and data contained in the GEIS is sufficiently detailed to allow the SEQRA Lead Agency – here, the Common Council – and the public to adequately assess the potential adverse environmental impacts of the proposed new regulations and projects allowed pursuant to them.

But here are a number of ways in which the Draft GEIS, and the proposed Final GEIS (which contains little, if any, additional analysis), should not be considered “complete” in its current form:

A.  The DGEIS lacks the assessment and information needed to assist the Common Council and the public to determine which neighborhoods would experience a substantial change in character under the proposed Green Code, or to measure the adverse impacts of such change. It is wholly inadequate to state, as expressed at page 74 of the DGEIS, “The land use maps and zoning analysis discussed … above, demonstrate that the BCDF will not radically change the community character in most areas of the City.” The DGEIS falls far short of the requirements set forth in the Final Scoping Document, that is:

 A goal of the BCDF is to ensure any new development replaces or builds upon the fabric of existing neighborhoods within the City, and to allow complementary and appropriate future development. The DGEIS will evaluate the impact of the BCDF on the variety of neighborhoods. The DGEIS will compare the existing built environment with the potential future allowed developments focusing on building styles, lot sizes and general land uses.

Residents, taxpayers, and Common Council Members are not told which areas of this city would experience “radical change” under the current proposal, who would benefit from such significant transition, and what mitigation measures are available to protect residents from the adverse impacts of such change.

B.  Despite the promise in the Final Scoping Document that, “the DGEIS will evaluate if adoption and implementation of the [UDO] will have adverse impacts to low-income populations,” the DGEIS and FGEIS fail to address a paramount legal and moral issue confronting this city: the extent to which Mayor Brown’s vision for Buffalo – manifested in the “Green Code” – will result in the displacement of low-income, primarily African-American residents from their neighborhoods.

C.  The term “environment” is broadly defined in SEQRA to include – not only physical conditions – but also “existing patterns of population concentration, distribution, or growth, and existing community or neighborhood character.” Nearly three decades ago, our State’s highest court, the New York Court of Appeals, in a case called Chinese Staff and Workers Association v. City of New York, 68 NY2d 359 (1986), held that “population patterns and neighborhood character are physical conditions of the environment under SEQRA” and must be given consideration “regardless of whether there is any impact on the physical environment.” The Chinese Staff decision went on to rule that “potential acceleration of the displacement of local residents and businesses” is an effect on population patterns and neighborhood character that must be analyzed pursuant to SEQRA not only for the actual property involved, but for the community in general.  And these socio-economic impacts must be considered whether the proposed project may effect these concerns “primarily or secondarily or in the short term or long term.” The DGEIS and FGEIS fail to assess the proposed Green Code’s potential for displacing local residents and businesses in the neighborhoods in and in close proximity to growth areas.

D.  The methodology and assumptions utilized in the DGEIS “Build-Out Analysis” (Appendix H, p. 2) are flawed and inadequate to provide meaningful information for the Common Council or the public. For example:

(1) The build-out only considered lands available for development – including “vacant properties and surface lots within the downtown core.” This approach ignores the potential that the developer-friendly Green Code would result in less-dense areas to be demolished (for example, the Fruit Belt residential blocks) and replaced by buildings and projects of greater density, scale, height, etc.

(2) The build-out only considered as-of-right uses, or uses permitted in each zone without the need to obtain a variance. The limited approach fails to take into consideration the proposed Green Code’s unrestrained use of the “special use permit” – the zoning mechanism which places the least burden on an applicant to meet. It also ignores the overwhelming tendency of Buffalo Zoning Board of Appeals [ZBA] to grant variances, whether or not the applicant provides adequate proof to meet the statutory requirements for “area” and “use” variances.

(3) The build-out analysis does not attempt to determine when redevelopment of available lands might occur. This restricted (and, frankly, lazy) approach contrasts with the requirement at 6 NYCRR 617.7(c)(3) of the SEQRA regulations that the significance of a likely consequence of an action be assessed in connection with not only its setting, but also its probability of occurrence, its duration, its irreversibility, its magnitude, and the number of people affected.

(4) Although recognizing that “the city has numerous overlay districts (i.e. “special districts”) to address unique character areas and encompass a portion of one or more zoning districts,” the build-out analysis does NOT consider overlay zoning districts as part of its analysis. This is contrary to the following requirement found in the Final Scoping Document: “The DGEIS will document the differences between the current and proposed zoning ordinances (lot sizes, as of right uses, etc.) including any overlay districts. Inconsistencies will be documented and any adverse impacts to the existing built environment will be identified.” [Emphasis added.]

II.  The most important part of a Final EIS – “the lead agency’s responses to all substantive comments” on the Draft EIS – was apparently prepared by the Office of Strategic Planning, not the Common Council Members, insulating our elected officials from the rigors of carefully assessing the public’s concerns.

The proposed FGEIS’ most critical part is the 140 pages of responses to comments made by the public and agencies concerning the Draft GEIS. They are found at pages 24-163 of the FGEIS.

The SEQRA regulations – at 6 NYCRR 617.9(b)(8) – mandate that a final EIS must consist of “the lead agency’s responses to all substantive comments,” and also state that, “The lead agency is responsible for the adequacy and accuracy of the final EIS, regardless of who prepares it.

Each Common Council Member should be asked whether he has read and approved of each and every response contained in the proposed FGEIS. If he is unable to answer affirmatively to both of these questions, he should not vote to accept the FGEIS as complete.

III. SEQRA’s purpose – to protect our environment by requiring a careful consideration of potential adverse impacts, alternatives and mitigation measures – will be thwarted if the current inadequacies in the DGEIS/FGEIS are not corrected.

As I have previously written, the City of Buffalo has all-too-often failed to comply with the letter and spirit of SEQRA. Unfortunately, given the City’s history of non-compliance, adoption of the presently deficient FGEIS will allow the current Administration to completely circumvent the SEQRA review process with impunity.

Pursuant to the SEQRA regulations – at 6 NYCRR 617.10(d) – once a Final Generic EIS is filed, most proposed projects can be approved by a city’s common council, planning board, zoning board of appeals, etc., WITHOUT ANY SEQRA REVIEW. This regulation – which makes developers very happy, and takes significant power away from nearby residents and property owners – is based on the premise that the generic Environmental Impact Statement has “adequately addressed” each and every project that is allowed “by right” under the newly adopted zoning and development regulations.

Buffalo’s environment and, therefore, its residents, will suffer dramatically if the current FGEIS is accepted by the Common Council given the inadequate analysis of environmental impacts in the DGEIS/ FGEIS, the propensity of the City’s planning staff to support virtually any project proposed by a developer, and the “thresholds for further evaluation” contained in the FGEIS [at pages 21 -1 23 of the FGEIS]. These newly added “thresholds” anticipate that no SEQRA review will be conducted for the vast majority of projects and actions not requiring either a rezoning or use variance. Given the Green Code’s expansion of the “by right” uses allowed in residential neighborhoods, and the many, many uses allowed by “special use permit” under the Green Code, City of Buffalo residents will find their voices greatly reduced, and their quality of life adversely impacted by the whims of developers.

Please take immediate action to contact your Common Council Members, and, if possible, attend the September 27, 2016 Legislation Committee meeting at 2 PM, City Hall, 13th Floor, Common Council Chambers.

With All Due Respect,

Art Giacalone

RIP Chautauqua Amphitheater 1893 – 2016

Posted by Arthur J. Giacalone on September 15, 2016
Posted in: Chautauqua Institution, Stupidity. Leave a comment

We tried in vain to save this historic gem – see the tireless effort by Save The Amp, the press release regarding the Chautauqua Amp lawsuit 01-22-16 and the Article 78 Verified Petition on behalf of Chautauqua Committee to Preserve the Historic Chautauqua Amphitheater and a group of brave residents.  But Chautauqua Institution ended up being beyond the law.

Fortunately, at least, we and all of America have our memories [see, for example, National Trust’s characterization of the Amp as “the heart”of the Chautauqua Institution, and the Amp’s prominent role in CI’s listing as a historic landmark district at amp_national register]:

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With All Due Respect for an American Treasure,

Art Giacalone

 

 

 

 

 

 

 

Things aren’t DUCKY along Buffalo’s waterfront

Posted by Arthur J. Giacalone on August 31, 2016
Posted in: Buffalo Billion, City of Buffalo, ECHDC, Sam Hoyt, SEQRA, SolarCity, Terry Pegula, Waterfront. 1 Comment

This past weekend the problem was massive traffic jams near Buffalo’s Canalside. But the omissions that helped to create vehicular gridlock on a pleasant summer evening may result someday in more dire consequences for Buffalo’s Lake Erie shoreline.

As reported by WIVB-TV on August 29, 2016, the presence of a massive rubber duck is being blamed for hours of traffic gridlock on a pleasant summer evening:

The world’s largest rubber duck was a huge hit. Officials say it’s the most popular attraction to ever come to Canalside. But the big crowds caused a traffic nightmare at the waterfront.

Rubber Duck at Canalside

[Uncredited photo of “World’s Largest Rubber Duck” from Erie Canal Harbor Development Corporation’s website .]

Don’t blame the duck. The guilty parties are the state and local officials who have failed to do the thoughtful planning they were obliged to do each time a new development project was being considered for Buffalo’s waterfront.

While public officials have expressed concern over the weekend gridlock, they have not acknowledged what they could have done to prevent the unintended creation of Buffalo’s largest parking lot.

Sam Hoyt, regional president of Empire State Development (the state agency most involved in development of the city’s waterfront), told WGRZ-TV that ESD takes seriously the public’s concerns over congestion, and then exclaimed, “… [W]e’re thrilled with the popularity of Buffalo’s waterfront.”

Sam Hoyt

Mr. Hoyt’s sentiments were echoed in a Buffalo News August 31st editorial entitled “Growing Pains – Gridlock during waterfront events is an indicator of a city on the mend”:

… [T]he main point to be taken from the weekend’s gridlock is that people want to come to the Buffalo waterfront. It was all but unthinkable just a few years ago. Today, it is so popular that organizers will have to plan their events more carefully. And, what’s the problem with that?

With all due respect, let me tell you what the problem is:  State and local officials have consistently failed to follow the intent and purpose of SEQRA [the State Environmental Quality Review Act] when considering new development along Buffalo’s waterfront. They have opted for expedited approval of projects – such as HarborCenter – rather than gathering useful information through the Environmental Impact Statement [EIS] process.

In 2012 and 2013, both Buffalo’s Common Council – while deciding whether to transfer ownership of the “Webster block” from the city to the Pegulas – and the Erie Canal Harbor Development Corporation (a subsidiary of Empire State Development) – when deciding whether to modify its Canalside development plans to allow for the construction of HarborCenter – had the legal authority (and, I would argue, obligation) to require the HarborCenter developers to prepare an EIS.  They decided instead to issue a “Negative Declaration” and claim that HarborCenter, with its multiple hockey rinks, hotel, restaurants, night club, retail space, etc., etc., would not adversely impact the environment – including traffic levels.

Asking the Pegulas – deep-pocket owners who did not have the option of building a similar three-rink hockey complex any place else – to prepare an EIS to address, at a minimum, traffic impacts in and around its proposed project, would have provided a framework to perform four important functions:

(1) objectively assess potential cumulative traffic impacts of the various Canalside projects and activities;

(2) carefully consider alternative projects and activities for the parcel, including a reduction in the scale of the proposed HarborCenter;

(3) realistically identify mitigation measures to reduce or eliminate potential traffic problems; and

(4) provide the public with a meaningful opportunity to offer informed comments to assist the government agencies in making its decision whether to go forward with the project as proposed.

The failure to fully and effectively utilize SEQRA to address potential Canalside traffic congestion is certainly disappointing. But what is truly disconcerting – and inexplicable – is how an obscure state agency, the SUNY College of Nanoscale Science and Engineering (CNSE), has placed in jeopardy the future health and sustainability of the Buffalo River and Buffalo’s Outer Harbor.

CSNE – an entity under the control of Gov. Andrew Cuomo and totally unaccountable to the residents of the City of Buffalo – approved the largest piece of the “Buffalo Billion” program, the Buffalo High-Tech Manufacturing Innovation Hub @ RiverBend, in May 2014 without the preparation of an Environmental Impact Statement.

As I explained in greater detail in a posting a year ago:

Under law, an EIS is presumed necessary whenever a project would physically alter 10 or more acres of land, or exceed construction of 240,000 square feet of non-residential facilities.  Nonetheless, the Cuomo administration knowingly circumvented the safeguards built into SEQRA by approving construction of a 90-acre, 1-million square-foot complex in a highly sensitive area in May 2014 without preparation of an EIS.

The decision to place RiverBend’s Innovation Hub along the Buffalo River prior to conducting the proper environmental review to determine if the site is appropriate for such activities was inexcusable.  The by-products of manufacturing solar panels at the RiverBend site have never been identified publicly.  We cannot rationally and responsibly research, develop, and manufacture “clean energy” products if the processes involved could harm the surrounding environs, including the fragile Lake Erie shoreline.

The College of Nanoscale Science and Engineering – which, since September 2014, is also known as SUNY Polytechnic Institute (SUNY Poly) – has the distinction of praising “the vision and leadership of Governor Andrew Cuomo” in the very first sentence of its website’s “About Us” page. Its Home page also boasts a photo of our Governor proclaiming, “Nanotechnology is a juggernaut for the activation of the entire economy.”

Andrew Cuomo - juggernaut

Sadly, for the future of the Buffalo River and the Lake Erie shoreline, CSNE has not been a juggernaut for the protection of the environment in Western New York.  As a sobering omen of what may lie ahead as a result of a state agency – in the midst of a gubernatorial election campaign – failing to conduct a thorough environmental review, CSNE has recently encountered a bit of a problem. According to a SEQRA notice filed with the State DEC, slag materials “containing low levels of technology enhanced naturally occurring radioactive material (TENORM)” were excavated during redevelopment activities at the RiverBend site.  CSNE has proposed “placing the material over an approximate 10 + acre area of the 90 acre Project Site followed by placement of a demarcation layer and covering…”.

Not surprisingly, consistent with its decision not to prepare an EIS for the entire 90-acre, 1-million square foot manufacturing project, CSNE has issued a Negative Declaration claiming that the on-site placement of this radioactive material will not adversely impact the environment. [Note: There is still time for an appropriate agency to challenge the Negative Declaration in an Article 78 proceeding in State Supreme Court.]

There’s no duck to blame for this problem. But I do know a number of turkeys masquerading as public officials who should be held accountable.

Jessica Santillo with Turkey Survivors 11-25-14

With All Due Respect,

Art Giacalone

Reasons exist to question the “waterfront bona fides” of U.S. Representative Brian Higgins

Posted by Arthur J. Giacalone on July 21, 2016
Posted in: Brian Higgins, City of Buffalo, Development, Gerald A. Buchheit Jr., Political Contributions, Waterfront. Leave a comment

Some may think it’s sacrilegious to question Congressman Brian Higgins’ good faith and sincerity when it comes to development of Buffalo’s waterfront. In a recent column expressing a grudging endorsement of developer Gerry Buchheit’s 23-story tower proposed for the former Freezer Queen site, Buffalo News columnist Donn Esmonde goes so far as to proclaim, “There is no questioning Higgins’ waterfront bona fides.” And Mr. Esmonde doesn’t stop there. He makes the following assertion: “For the record, there is no record of political contributions to [Higgins] from Buchheit or other project principals.”

[Note:  On July 25, 2016, the following correction was added to Mr. Esmonde’s June 11, 2016 column:  (Correction: A June 11 Donn Esmonde column on the proposed Outer Harbor waterfront tower inaccurately described campaign contributions to Rep. Brian Higgins. According to federal campaign records, since 2006 developer Gerald Buchheit and principals from project partner R&P Oak Hill Development donated a total of $29,400 to Higgins.)]

It turns out that the public has plenty of reasons to wonder whether, in the words of the Buffalo News columnist, the U.S. representative from South Buffalo “simply believes the apartment tower is a good idea.”  Mr. Esmonde’s assertion that there are no records of political contributions from the 23-story tower developer to Congressman Higgins is false.  The Federal Election Commission records show that Gerald A. Buchheit has contributed generously to Brian Higgins’ prior campaigns. [Mr. Esmonde could have done his own “Transaction Query By Individual Contributor” by simply inserting “Buchheit” and “Gerald”.]

FULL DISCLOSURE: I represent four local environmentalists and activists who are challenging the City of Buffalo’s approvals for Mr. Buchheit’s 324-foot tower in a State Supreme Court proceeding known as Wooster et al. vs. Queen City Landing, LLC et al. I am so appalled by the City’s disregard for the protections built into the State’s environmental review process and the City’s zoning and planning laws that I am providing my legal services for free. In 2004, my East Aurora front lawn proudly displayed a sign in support of Brian Higgins while he successfully ran for the 27th Congressional district seat. When redistricting left me with Chris Collins as my Congressman, I could not help but long for the days when Brian represented my family in Washington, D.C. But now I am a South Buffalo resident, Mr. Higgins is once again my Congressman, and I am taking a closer look at what is happening in and around Buffalo’s Outer Harbor. Given the fact that we are not talking about a “virtual” 23-story tower – but a real threat to the significant and fragile natural habitat that adjoins Western New York’s Lake Erie shoreline – I feel compelled to hold a South Buffalo legend to the highest ethical standards.

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Between 2006, when Gerry Buchheit did not yet own the former Freezer Queen site and donated $2,000, and 2013, when Buchheit’s Queen City Landing, LLC, owned the Outer Harbor parcel and he contributed $5,200, Brian Higgins’ campaign committee was the beneficiary of $21,600 in contributions from Mr. Buchheit.

Information available from the Center for Responsive Politics at www.OpenSecrets.org helps to place the size of Gerry Buchheit’s political contributions into context. The $5,200 donated in 2013 by Mr. Buchheit (who identified his employer as Accent Stripe, Inc., and his occupation as contractor) makes the developer of the 23-story tower project the 21st largest contributor to Brian Higgins’ campaign. The $5,200 contributed individually by Buchheit exceeds the total amount donated during 2013-2014 campaign cycle to Mr. Higgins by individuals affiliated, for example, with each of these organizations: Bricklayers Union, Communications Workers of America, International Longshoremens Association, National Fuel Gas Corp., Teamsters Union, United Auto Workers, Kaleida Health, General Motors, and Lockheed Martin.

But Gerry Buchheit is not the only principal affiliated with Queen City Landing’s 23-story tower project who generously donated to Brian Higgins’ 2013-2014 campaign. R & P Oak Hill Development – through its President, Melissa Garman Baumgart, and related companies, such as 3556 Lakeshore, LLC – is functioning as both general contractor and Buchheit’s partner in developing Queen City Landing. Between 2011 and 2014, individuals identified as R & P Oak Hill “partners” gave political contributions to Brian Higgins totaling $7,800.00.  According to the OpenSecrets.org website, R & P Oak Hill Development’s $4,000 contribution to Brian Higgins’ 2013-2014 campaign made Mr. Buchheit’s business partner Congressman Higgins’ 43rd biggest contributor that election cycle.

The combined $9,200 contributions Mr. Higgins received in 2013-2014 alone from the individuals and companies hoping to profit from the 23-story tower project are enough, when viewed in isolation, to cause inquiring citizens – if not Donn Esmonde or the Buffalo News editorial board – to question the Congressman’s “waterfront bona fides.” But there is another, broader reason to wonder whether Brian Higgins’ support for the Queen City Landing proposal is motivated by something other than a belief that Mr. Buchheit’s project was simply a “good idea.” According to the Center for Responsive Politics, two of the three industries to have contributed the largest amounts to date to the Brian Higgins for Congress 2015-2016 election campaign (a staggering, combined total of $68,500) are the building trade unions and industrial unions.

The size of the political contributions received by Mr. Higgins from the 23-story tower’s principals and the unions whose members would be expected to work at the development site provides a likely answer to the inquiry: “Why would a U.S. Congressman feel compelled to write a three-page letter in support of the proposed Queen City Landing development at 975 and 1005 Fuhrmann Boulevard?” It also might explain why the man Donn Esmonde refers to as “the figurative father of a revived Outer Harbor” would submit a correspondence that:

(a) fails to address the project’s likely impacts on the Outer Harbor’s natural environment and significant fish and wildlife habitats – despite having “SEQRA Comments re Queen City Landing Proposal” as its “Re” line; and,

(b) contains inaccurate assumptions more suitable to expression by Mr. Buchheit’s lawyers than a conscientious and objective public servant.

Here are several of the questionable assertions in the Congressman’s letter of support:

** Mr. Higgins opening paragraph expresses his “understanding that a public comment period has commenced pursuant of the provisions of the State Environmental Quality Review Act (SEQRA).” There never was a “public comment” period pursuant to SEQRA due to the City Planning Board’s issuance of a Negative Declaration. The Congressman could have corrected his misunderstanding by contacting either City officials or the respected environmentalists who sought his assistance in addressing the harmful impacts of the 23-story tower proposal. He apparently did neither, and, more importantly, did not urge the SEQRA “lead agency” to require preparation of an Environmental Impact Statement (EIS) to ensure that potential adverse environmental effects could be objectively assessed and properly mitigated.

** The Congressman concludes that the fact that the former Freezer Queen parcel is “privately held” means that “fewer levers of control are available to government actors who would seek to influence the outcome of this proposal.”  This assertion – mirroring arguments made by Mr. Buchheit’s legal team – ignores the prominent and productive role SEQRA’s EIS process is intended to play, whether or not the property is in public or private hands.  It also disregards the significant discretionary power available to both the City Planning Board (through the design and site plan review process), and the City of Buffalo Common Council (through the Buffalo Coastal Special Review District’s restricted use permit process).

** Mr. Higgins seemingly accepts the developer’s claim that lowering the proposed height of the tower would “debas[e] the financial underpinning of the project” given the “higher rents which the higher floors would command.”  Perhaps the Congressman’s 21st best campaign contributor shared with him something not seen by City officials or the public, a market feasibility study. If not, the U.S. Representative for the 26th Congressional District owes his constituency – the public and the electorate – a reason to trust the unsupported assertions of a developer who in 2008 and again November 2015 claimed that he could profitably develop the site by retrofitting the existing Freezer Queen building and adding a penthouse floor.

Freezer Queen site tower

** Congressman Higgins – recognizing that the Green Code’s call for a six-story height limitation at the 975-1005 Fuhrmann Blvd. site has not yet been enacted into law – states that “it is not clear to me what leverage exists to legitimately restrict the proposed height of this structure.” Had Mr. Higgins contacted someone with knowledge of the City’s zoning law (other than, perhaps, Mr. Buchheit’s counsel), he would have learned that the Buffalo Coastal Special Review District provisions expressly give the Common Council the authority to determine the height of any building constructed along the Lake Erie shoreline. That, in my book, is an awful lot of leverage.

I am not thrilled to be doing it, but, in light of the above, I feel compelled to question Brian Higgins’ waterfront bona fides.  [Note:  This is not the first time I have written a post expressing my disappointment in the Congressman from South Buffalo:  https://withallduerespectblog.com/2014/02/08/wnys-most-influential-person-ignores-health-issues-at-peace-bridge/.]

With All Due Respect,

Art Giacalone

P.S.  Donn Esmonde’s term – “figurative father” – makes me think of “godfather,” which brings to mind the following quote from Francis F. Coppola’s The Godfather Part III:  “All my life I kept trying to go up in society to where everything higher up was legal, straight.  But the higher I go, the crookeder it becomes.  Where the hell does it end.”  (Michael Corleone [Al Pacino] to his sister Connie [Talia Shire].)

Defining Moment for Chris Scanlon and Buffalo’s Common Council

Posted by Arthur J. Giacalone on June 20, 2016
Posted in: City of Buffalo, Development, Gerald A. Buchheit Jr., SEQRA, South Buffalo. Leave a comment

WGRZ reported on June 17th that South District Christopher Patrick Scanlon is leaning toward voting “yes” on the proposed 23-story Queen City Landing project at the former Freezer Queen site on the Outer Harbor. The upcoming decision – which could take place as early as June 22nd – will determine the face and character of Buffalo’s waterfront for generations.

Chris Scanlon has not provided me with any substantial feedback to the communications that I have been sending to him – as my South District legislator – and the entire nine-member Common Council the past few months (although I certainly have tried to constructively provide legal and factual analysis – here’s one example). So now I am sending this open letter to Council Member Scanlon with a series of questions I hope he will consider:

Dear Council Member Scanlon,

It has been five years since you were appointed to fill the South District Common Council seat vacated by State Assemblyman Mickey Kearns. I have little doubt that you are sincerely committed to work in the best interests of the residents in your district, including your wife and young son, and the City of Buffalo as whole. The decision you will make regarding the proposed Queen City Landing project will be a defining moment in your career. Before you cast your vote, I urge you to consider the following questions and comments:

First, what best symbolizes the legacy you wish to leave behind for the City of Buffalo, a sterile and controversial 23-story tower, or an Outer Harbor where nature thrives and city residents and visitors can get away from urban development and enjoy the beauty and serenity of the Lake Erie shoreline?

As you are well aware, two of your fellow Council members – David Francyk and David Rivera – have characterized the Queen City tower as too tall and aesthetically-challenged. Whether or not you agree with that assessment, a vote to allow this project to go forward will alter for generations the character and feel of the Outer Harbor. You must seriously consider what your vision is for Buffalo’s future, and act accordingly.

Freezer Queen site tower

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Second, who do you believe should be determining the future of Buffalo’s Outer Harbor, a private developer with a less-than-consistent track record, or the Common Council speaking on behalf of the entire city?

As Buffalo’s legislative body, you and your fellow Common Council members have a duty under the “Buffalo Coastal Special Review District” process to protect our city’s waterfront from the threat of “inconsistent development” or “inadequately controlled development.” Just this past February, the Common Council – including yourself – adopted the city’s official goals and policies for waterfront development, the Local Waterfront Revitalization Program [LWRP].

Does your vote for the LWRP mean anything? Can you truly reconcile the vision for Buffalo’s Outer Harbor embraced by the LWRP – with its goals of protecting the scenic quality of the coastal area; enhancing the enjoyment and appreciation of visitors to the Outer Harbor’s parks, marina, walkways and nature preserves; preserving and improving state- and locally-designated natural habitats; avoiding disruption of bird migration “to the maximum extent practicable”; and, reusing industrial heritage resources, such as the former Freezer Queen facility – with the plan proposed by Queen City Landing, LLC, and its principal, Gerald A. Buchheit, Jr.?

LWRP map detail - natural resources

Mr. Buchheit’s history of proposing projects and then abandoning them may be unrivaled, even if you choose to disregard his “ambitious plan” in 2002 – when his casino development group, Northstar Development Corp., owned the Statler Towers – to convert the Convention Center and the first two floors of the Statler Towers to casino space, construct a parking tower, and develop an entertainment/restaurant/retail complex stretching along the block between Delaware Avenue and Franklin Street.

The Orchard Park businessman (who has generously contributed to the Republic party as well as Gov. Andrew Cuomo) has twice – in 2008 and again in 2015 – proposed to reuse the existing Freezer Queen building and construct a luxury condominium project. Here’s is how Buffalo Rising described Buchheit’s 2008 plans:

“Buchheit is a former owner of the Statler. He sold the property to Bashar Issa … He purchased the Freezer Queen property for $3 million at a November 2007 auction.  In March 2008, Buchheit announced plans to create as many as 130 condos in the building and additional residential buildings and a hotel on surrounding land.  Those plans (below) stalled out with a sputtering economy.”

Buchheit's 2008 plans

And here’s Buffalo Rising’s description of Buchheit’s July 2015 plans:

“A plan to convert the vacant Freezer Queen complex at the north end of the Small Boat Harbor is back with a new design.  Property owner Gerry Buchheit is partnering with R&P Oak Hill on the $40 million Queen City Landing project that will start with the conversion of the six-story building into 120 apartments priced at $2,000/month and up.  Future phases would include new residential buildings and possibly a hotel on the 20-acre site. The development team is working with Trautman Associates to design the project.  Plans call for retrofitting the existing building to create one and two-bedroom units ranging in size from 1,200 to 1,500 sq.ft. of living space. The main floor will house a mix of restaurant, bar, and fitness center tenants. The remaining floors will contain the residential units featuring floor-to-ceiling glass, high ceilings, and balconies. Plans also call for penthouse residences added atop the existing structure, and a resident club house with roof top terrace.  Covered parking is planned.”

Buchheit's 2015 plans

In July 2015, the Buffalo Business Journal noted that “the existing 6 story building provides limitless views of the lake, downtown, and more” [so, I must ask, who needs a 23-story tower?]. It also provided the following priceless quotes from Gerry Buchheit:

“Now is the time,” Buchheit said Thursday while revealing his proposed plans at an event sponsored by Business First… “We envision this as a local hot spot,” Buchheit said. “This could be a regional example of a community can re-imagine its waterfront.”

As you know, Mr. Buchheit’s representatives obtained approvals from the City of Buffalo for both his 2008 and 2015 plans. Then each project was abandoned.

Note:  Mr. Buchheit now claims that he must demolish – and not reuse – the existing Freezer Queen building because the structure sits in a 100-year FEMA floodplain.  It was sitting in the same floodplain in 2008 and 2015.  Are we to believe, on the one hand, that Mr. Buchheit presented his 2008 and 2015 plans to the City of Buffalo without taking into consideration the hazards of building in a floodplain, or, on the other hand, that he is using the floodplain as an excuse so that he can build a 23-story monument to his ego?     

As South District Council Member you must objectively ask: Is this is the person to whom one can confidently entrust the future of Buffalo’s Outer Harbor?

Third, are you able to identify any meaningful mitigation measures incorporated into the Queen City Landing project to reduce adverse aesthetic and environmental impacts?

WGRZ’s June 17th report included the following quote:

“In a phone interview on Friday evening, Councilman Scanlon said he is leaning toward voting ‘yes’ on the project. ‘If you look at what the Planning Board was doing, as lead agency, in determining that it didn’t need a full Environmental Impact Statement… I think the Planning Board, in their role as lead agency, they didn’t feel it needed one based on everything they looked at,’ Scanlon said. ‘The issues that were raised, legitimate or non-legitimate, by the public or other people, I think they felt they were mitigated by the developer’s plans.’”

Frankly, I am unaware of any meaningful mitigation measures. Are you able to identify any of the supposed mitigation reflected in the developer’s plans?

Do you know what, if anything, was done to lessen the adverse aesthetic impact of viewing a 23-story, 324-foot building from the vantage point of boaters or restaurant patrons at the adjacent Small Boat Harbor, or from walkers at nearby Greenway Nature Trail or Tifft Nature Preserve?

What mitigation measures, if any, were taken to protect scenic coastal vistas?

Has the developer done anything to change the plans to ensure the safety and convenience of bikers and pedestrians using the public bike path who will be forced to deal with one vehicle entering or exiting the Queen City Landing driveway as often as once every 16 seconds (and, that is the intrusion across the bike path before Mr. Buchheit builds the additional 10-story apartment tower he plans for the rear of the parcel)?

Did the City Planning Board assess how a shorter building might be less disruptive to seasonal bird migration than the proposed 23-story tower?

What mitigation measures were added to ensure that the proposed 400,000-square-foot mixed-use development project – that will include a nightclub, restaurants, and other outdoor activities, and generate thousands of motor vehicles daily – will not adversely impact nearby fishing hot spots, fish spawning and bird nesting sites, and sensitive natural habitats?

LWRP map detail rec areas - LEGEND

Did the developer incorporate the request by Congressman Brian Higgins to “eliminate the negative impacts associated with putting a parking garage (three stories high and 277 feet long) along the water’s edge”?

Lastly, do you agree with the absurd statement at page 4 of the City Planning Board’s Negative Declaration that the 324-foot structure will NOT negatively impact the Outer Harbor’s aesthetic resources and coastal views because it is “a stand-alone building”?

Fourth, are you allowing yourself to be swayed by pressure being placed on you and other Council Members by Mayor Byron Brown’s administration, other elected officials, the media, or business interests?

I keep hearing rumors – from every direction – that you and the other members of the Common Council are being pressured to say “Yes” to this project? Are the rumors true?

Can you assure residents of the South District and throughout the City of Buffalo that your vote for or against the project – or insistence that the building be substantially reduced – will be made based on the requirements of the city’s zoning code and impacts on the environment, and not as a result of political pressure?  Your legacy will depend on it!

With All Due Respect,

Art Giacalone

One Vehicle Every 16 Seconds!

Posted by Arthur J. Giacalone on June 12, 2016
Posted in: City of Buffalo, Gerald A. Buchheit Jr., Waterfront. Leave a comment

Dear Common Council Members,

Go ‘head, flip-off the thousands of birds that might get killed,

Forget the echo of Buffalo’s industrial heritage that will be lost,

And, turn a blind eye to the waterfront views that will be ruined,

But do you really want one-vehicle-every-16-seconds crossing the Outer Harbor bike path? 

Please say “No” to the 23-story tower at the old Freezer Queen site!

Here is the developer’s site plan showing the proposed entrance/exit to the Queen City Landing project crossing the adjacent public bike path:

Bike Path intrusion

And here is an excerpt from the developer’s traffic analysis indicating that the proposed 400,000-square-foot project would generate 228 vehicles entering or exiting the development during PM peak hours, 217 vehicles during the AM peak hours, and an average of 2,687 vehicles daily:

Trip Generation table

220 vehicles per hour equates to 3.66 vehicles per minute, or approximately one vehicle every 16 seconds crossing the public bike path.

Walk Your Bike

With All Due Respect,

Art Giacalone