Buffalo’s Common Council must move quickly to temporarily halt development in and around Elmwood Avenue to preserve the historic fabric of this unique and livable neighborhood.
The Elmwood Village is under assault on two major fronts.
Mayor Byron W. Brown’s Office of Strategic Planning has authored a new zoning and land use ordinance – the “Green Code” – that proposes elimination of many of the zoning provisions that helped the Elmwood Village earn its 2007 designation as one of the American Planning Association’s “10 Great Neighborhoods.” [See APA – Elmwood Village award 2007.]
[Click here for a quick summary, Green Code Threats to Elmwood Village 02-24-16.]
And a bevy of Western New York developers – including, among others, Carl Paladino’s Ellicott Development Company, Chason Affinity, the Frizlen Group, and Ciminelli Real Estate Corp. – has rushed into the Elmwood Village with proposals that fail to capture the scale, aesthetics, history, and architecture of Buffalo’s nationally recognized asset. The historic fabric and extraordinary character of Elmwood Avenue will be irreparably compromised if this unique neighborhood continues to be tarnished by projects such as these:
905 Elmwood Avenue:
Southeast Corner of Elmwood and Forest Avenue:
766 Elmwood Avenue:
It is time for Buffalo’s Common Council to demonstrate its leadership. The city’s legislative body has the power to enact a moratorium that would preserve the status quo within the boundaries of the Elmwood Village while the process of reviewing and, hopefully, modifying the proposed Green Code moves forward.
There will almost certainly be reluctance among Common Council members to take what some will view as a dramatic – if not drastic – move. And our legislators are unlikely to receive constructive assistance from the Corporation Counsel’s office – the city’s law department – where attorneys hold their jobs at Mayor Brown’s pleasure. So I will share with the Common Council – and, in particular, Messrs. Pridgen, Rivera and Feroleto – the following principles [additionally, here is a memorandum addressing FAQ re Moratoriums]:
First, New York’s courts have repeatedly upheld moratorium resolutions as “valid stopgap or interim zoning measures” when they temporarily halt development while a municipality considers comprehensive zoning changes (such as the proposed Green Code) or a new comprehensive plan.
[See, for example, Laurel Realty v. Planning Bd. of Town of Kent, 40 AD3d 85 (2nd Dept. 2007); 119 Development Associates v. Village of Irvington, 171 AD2d 656 (2nd Dept. 1991); McDonald’s Corp. v. Village of Elmsford, 156 AD2d 687 (2nd Dept. 1989); Matter of Charles v. Diamond, 41 NY2d 318 (1977).]
Second, the fact that one or more developer may have applied for approval of a project prior to enactment of the moratorium neither invalidates the moratorium, nor makes the moratorium inapplicable to the pre-filed application, so long as the city does not act in “bad faith” and unduly delay acting on the application.
[Note: The courts have repeatedly upheld moratoriums enacted after a municipality has received an application. For example, McDonald’s Corp. v. Village of Elmsford, 156 AD2d 687 (2nd Dept. 1989); West Lane Properties v. Lombardi, 139 AD2d 748 (2nd Dept. 1988); Dune Associates v. Anderson, 119 AD2d 574 (2nd Dept. 1986).]
Third, under New York law, a developer does not have a “vested right” to complete a project under the existing zoning law unless and until there has been construction or other change to the land itself in furtherance of the project to such an extent that enforcement of a subsequently enacted zoning law would inequitably cause a serious hardship or loss.
[See, for example, Pete Drown Inc. v. Town Board of Town of Ellenburg, 229 AD2d 877 (3rd Dept. 1996); Masi Management, Inc. v. Town of Ogden, 273 AD2d 837 (4th Dept. 2000); Alaimo v. Town of Greece, 68 AD2d 743 (4th Dept. 1979).]
Fourth, moratoriums, to be valid, must be “reasonable” in length. Courts consider a six-month moratorium, and, if circumstances warrant, an extension if additional study is needed, to be a reasonable length.
[See, for example, Lakeview Apartments of Hunns Lake v. Town of Stanford, 108 AD2d 914 (2nd Dept. 1985; McDonald’s Corp. v. Village of Elmsford, 156 AD2d 687 (2nd Dept. Noghrey v. Acampora, 152 AD2d 498 (2d Dept. 1988).]
And fifth, a resolution to enact a moratorium must follow the same procedures as a request to amend a zoning ordinance. But, note, adoption of a moratorium on land development or construction is a “Type II action” under SEQRA, and, therefore, no SEQRA reviewed is required.
[Here is a sample resolution enacting a moratorium; and, a document, Land Use Moratoria – NYS Dept. of State 1999,” which provides a thoughtful discussion of the topic.]
If asked, I will gladly provide the Common Council pro bono advice and assistance in preparing the required documents and navigating the procedurals steps needed to enact an effective moratorium to maintain the status quo until the proposed Green Code is carefully assessed and modified to assure preservation of the Elmwood Village’s historic fabric.
With all due respect,
The post, https://withallduerespectblog.com/category/elmwood-village/, appears to have touched a nerve. More than 1,600 visitors have been to my oft-quiet website in a little over 48 hours. I can only hope that Buffalo residents who are troubled by the current assault on the Elmwood Village will take the time to express their concerns to their respective Common Council Members and Council President: email@example.com; firstname.lastname@example.org; email@example.com.
I would like to respond with some detail to a comment I have received. But, first, let me clarify a point. No one is compensating me in any way for my efforts to shed light on the Green Code process. As a former resident of the Elmwood Village (having lived as a young adult on both Auburn and Ashland avenues), I greatly appreciate its attractiveness and uniqueness as a place to live. As a lawyer who has represented residents in and around the Elmwood Village area for a quarter century, I know all too well how vulnerable this historic neighborhood is to the whims of developers and, all too often, compliant city officials.
COMMENT: What is the Elmwood Village Association doing about this? Do they have any interest in preserving the most beautiful area of Buffalo?
RESPONSE: I have no doubt that there are members on the EVA board of directors who care deeply about preserving and protecting the historic fabric of the Elmwood Village. But I have seen professionally – most recently, as the lawyer for a group of Granger Place and Forest Avenue residents and property owners fighting to prevent the demolition of ten century-old dwellings on the southeast corner of Elmwood and Forest – how the EVA has functioned more as the “Elmwood Village Chamber of Commerce” than as an organization determined to enhance the qualities that have made this portion of Buffalo the gem that it is.
It is understandable that there are mixed feelings about the current condition of the properties on the east side of Elmwood Avenue south of Forest Avenue – owned since 2009 by an affiliate of the Chason Affinity companies. However, for many years, neither the EVA (which was founded in 1994), nor the City of Buffalo, took effective steps to compel the former owner of the parcels, Hans Mobius, to properly maintain and preserve these properties. With the appropriate attention, these structures – built as two- and three-family residences between 1900 and 1920 – would proudly reflect “the unique and historic nature of Elmwood Avenue” the EVA claims it was formed to preserve and protect.
Rather than attempting to save ten dwellings (eight on Elmwood and two around the corner on Forest) from the wrecking ball, EVA Executive Directors – one former, Justin Azzarella, and the current, Carly Battin – have functioned as cheerleaders for a developer who wishes to demolish them all, eliminate their welcoming front lawns, and construct a six-story (five stories and a penthouse), approximately 200,000 square-foot mixed-development project which would be completely out-of-character with Elmwood’s fabric and history.
More specifically, Mr. Azzarella provided Chason Affinity with an undated letter (sometime after December 6, 2010) expressing, on behalf of the board of directors of the Elmwood Village Association, “support of your mixed-use development at the corner of Elmwood and Forest Avenue,” applauding the developer’s “commitment to developing an appropriately scaled, mixed-use building in keeping with the City of Buffalo’s Elmwood Village Design Standards” [EVDS]. [Click here for EVA support letter.]
Curiously, despite the fact that every single building on Elmwood between Bird and Forest avenues is less than three stories in height, Mr. Azzarella fails to explain how a five- or six-story structure could be compatible with the EVDS requirement that “new buildings shall respect the predominant height of buildings within the area”:
More recently, Ms. Battin not only testified in a civil proceeding on behalf of Chason Affinity’s efforts to extinguish deed restrictions protecting the adjacent owners since 1892, she provided a sworn affidavit expressing EVA’s “full support” for the proposed planned hotel-condominium-retail, proclaiming that it would be “overwhelmingly beneficial for the commercial strip of Elmwood Avenue.” [Click here for Carly Battin’s affidavit.]
Notably, not a word was expressed by EVA’s former or current Executive Director regarding potential adverse impacts a 200,000-square-foot development would have on the residents living near the proposed project on Elmwood, Forest and Granger. And nothing was stated concerning the goal of protecting and preserving Elmwood Avenue’s unique and historic nature.
With All Due Respect,