With All Due Respect

Perhaps my expectations were too high.

Delaware District Councilmember Joel P. Feroleto has an impressive pedigree. His mother, the Hon. Paula L. Feroleto, was elected a State Supreme Court Justice in 2004, and has functioned as the Administrative Judge for the 8-county Eighth Judicial District since 2009. His father, John P. Feroleto, is a well-respected personal injury lawyer, known for his hard work and trial skills.

Perhaps my desire to see the growth of a new generation of leaders on the City of Buffalo Common Council – elected officials willing to provide a counter-weight to Mayor Byron Brown’s developers-before-residents approach to governing – created a false sense of hope.

No matter the reason, I am thoroughly discouraged by Joel Feroleto’s handling of Chason Affinity’s proposed mixed-use “1111 Elmwood” project at the southeast corner of Elmwood and Forest avenues. I expected the Common Council’s only lawyer to fight for the integrity of the zoning and development process, and to attempt to preserve the letter and spirit of the City’s most significant piece of legislation in many years – the Uniform Development Ordinance (UDO), known informally (and, misleadingly) as the “Green Code.”

[Full disclosure: For large portions of the past ten years, I have represented and assisted in various ways residents and property owners on Granger Place and Forest Avenue fighting to preserve the character of their historic Elmwood Village neighborhood and prevent the demolition of century-old buildings.]

The sources of my disappointment in Joel are many. Here’s a partial list:

Timing of political contributions. On September 7, 2016, Chason Affinity’s team of consultants officially submitted the developer’s application in furtherance of the “1111 Elmwood” project. In addition to site plan approval from the City Planning Board, and variances from the Zoning Board of Appeals (ZBA), the proposed development could not proceed without obtaining two important approvals from the Common Council: a rezoning of two Forest Avenue parcels, and a restricted use permit to allow demolition of eleven existing structures.

Within 20 days of the 1111 Elmwood project filing, Councilmember Feroleto received the following contributions from the Chason Affinity team: $500 from the property owner, Affinity Elmwood Gateway Properties; $500 from Chason Affinity’s architectural firm, Camina Wood Morris; and, $250 from Chason Affinity’s lawyers, Bond, Schoeneck & King. None of these contributors had donated to Joel’s councilmanic campaign prior to the filing of the 1111 Elmwood application.

Joel also received a September 19, 2016 donation of $500 from Gerald Buchheit. The general contractor for Chason Affinity’s proposed Elmwood/Forest project, RP Oak Hill Building Co., happens to be Buchheit’s partner in developing Queen City Landing, the controversial 23-story, glass-and-steel tower on Buffalo’s Outer Harbor. [Note: Councilmember Feroleto voted to approve the restricted use permit for the 23-story tower in June 2016, despite the fact that the proposed Green Code called for a 6-story building height maximum for the Fuhrman Blvd. site.]

Given an attorney’s obligation to be keenly aware of even the appearance of a conflict-of-interest, it would have been admirable and appropriate for Joel – in his role as the only lawyer on Buffalo’s Common Council – to give back the donations he received from the Chason Affinity team in light of the pending 1111 Elmwood project.

Note: Speaking of political contributions, Councilmember Feroleto received a $1,000 contribution from Mayor Byron Brown’s “Brown for Buffalo” campaign in October 2015. That’s one way for a city’s chief executive to convince a legislator not to rock the proverbial boat.

Refusal to take leadership role. I contacted Joel and Councilmember David Rivera (whose district also includes a portion of the Elmwood Village) early in October 2016. [I did not know at that time of the political contributions to Feroleto from the Chason Affinity team.] I urged the two legislators to take two steps to help preserve the unique character of the Elmwood Village:

First, have the Common Council seek “lead agency” status under the State Environmental Quality Review Act (SEQRA) to ensure that potential adverse impacts of the proposed project would be fully and objectively analyzed. My email message to Feroleto and Rivera included the following statement:

“It would not serve the residents of Buffalo for its legislative body to allow critical determinations that may impact the Elmwood Village for decades – and severely impact the character of the city’s most attractive neighborhood – to be made by another entity, no matter what justification you may put forth.  Being lead agency on this one project should not require an overwhelming amount of time or effort – there are experienced residents who will gladly assist you.  And, importantly, pursuant to SEQRA, as lead agency, the Common Council has the authority under the SEQRA regulations, to retain an outside consultant to review the project sponsor’s DEIS at the expense of the project sponsor:  “… [T]he lead agency may charge a fee to the applicant in order to recover the actual costs of … reviewing the draft and/or final EIS.”  [See 6 NYCRR 617.13(a).]”

To my chagrin, Joel provided the following excuse for not seeking lead agency status: “The Common Council already has too much on its plate.

Second, promptly commence the proper steps needed to lawfully enact a moratorium on development, either city-wide or in select neighborhoods such as the Elmwood Village, until the proposed Green Code was enacted and placed into effect. [I even offered to prepare the first draft of the necessary papers.]

I never received a response in any form from Councilmember Feroleto regarding a moratorium. He most likely found the thought of taking this bold step too controversial, and contrary to the Mayor’s wishes.

Parroting of the developer’s positions. For the past half year or so, conversations with Joel regarding the Chason Affinity project became increasingly frustrating. Whether the Councilmember initiated a topic, or replied to my perspective on pertinent issues, the words that came out of his mouth consistently echoed Chason Affinity’s positions (although the Councilmember would not publicly confirm that he was in favor of the project). For example:

*** Although the State Office of Historic Preservation concluded that the proposed demolition of the 11 century-old building would have a significant adverse impact on the Elmwood Village Historic District (East), [see SHPO’s 12-19-2016 letter] Joel took the position that the actual impact would not be great because none of the individual building has substantial architectural or historic significance.

*** Although none of the existing structures on Chason Affinity’s property, the adjoining Granger Place and Forest Avenue residences, the commercial buildings across Elmwood Avenue from the proposed 1111 Elmwood site, or the single-family homes on the east side of Elmwood Avenue north of Forest Avenue, exceed two-and-a-half stories in height, Joel insisted that Chason Affinity’s 4-story, 315-foot wide building would not be out-of-scale with the adjoining neighborhood because the stepped-back upper floors and various facades along Elmwood Avenue would give the impression from street level of multiple, three-story buildings.

*** Despite the fact that the various projects proposed by Chason Affinity during its eight years of owning the properties at the southeast corner of Elmwood & Forest never complied with the existing zoning laws, and never reflected the character and scale of the Elmwood Village, Joel praised the developer for being open, transparent, and willing to compromise.

Lack of willingness to fight for the integrity of Green Code/zoning process. During the weeks preceding the recent public hearing before the ZBA regarding the proposed 1111 Elmwood project, I sent emails and supporting documentation to Councilmember Feroleto of a number of significant defects in Chason Affinity’s application that had been ignored by the city’s Planning Department, including, for example, the following:

(i) The developer had failed to follow the proper procedures – including a public hearing before the City Planning Board – when it allegedly consolidated its ten (10) Elmwood Ave. parcels into one 321.5-foot wide lot in the fall of 2016. Under the Green Code/UDO, no more than 2 lots can be combined on Elmwood Avenue if they had not been consolidated prior to the enactment of the Green Code.

(ii) The Green Code/UDO requires a project sponsor to “select” one building type it proposes to construct, and then comply with the standards for that building type. Chason Affinity’s proposed project violates this requirement by treating its proposed structure as both a “Commercial Block” building where convenient, and “Stacked Units” building where a Commercial Block building is inappropriate.

(iii) The Green Code/UDO requires the ground floor of a “Commercial Block” building – the type of building allowed on the Elmwood Avenue portion of the Chason Affinity property – to consist of “retail or service uses” only. Despite this mandate, 153-feet of the Elmwood Avenue frontage of the proposed project contains residential condominium units, and not the required commercial uses.

Joel never addressed these issues in his replies to my emails, and, to my knowledge, never publicly discussed or acknowledged these defects in the Chason Affinity application. Disturbingly, Councilmember Feroleto appears not to care that what many residents consider the Common Council’s most significant legislative accomplishment in decades – the Green Code -was being disregarded by Mayor Brown’s planning staff.

Preference for Penhurst Park elites and popularity polls.

Our state’s highest court made it clear nearly a half-century ago that zoning determinations must be “more than just a Gallup poll.” That reminder fell on deaf ears as Joel – finally breaking his public silence – endorsed the Chason Affinity project at the June 21^st ZBA public hearing. According to a Buffalo News article, “Feroleto noted that ‘there is significant support’ in the ‘immediate neighborhood’ around the project, citing letters and petitions to the ZBA from 80 percent of homeowners on Penhurst Place (sic)…”

Councilmember Feroleto’s embrace of the position taken by Penhurst residents – whose enclave of high-priced homes lies outside of the Elmwood Village boundaries and is protected from any direct adverse impacts associated with the demolition, construction, or operation of the Chason Affinity project – rather than the concerns expressed by adjacent Granger Place and Forest Avenue residents, or the plight of the students and non-affluent tenants being displaced by Chason Affinity’s eviction notices, says volumes about Joel, his values, and how he arrives at his decisions as an elected legislator.

I could go on, but I have more important things to do.

With all due respect,

Art Giacalone