With All Due Respect

[Full disclosure: On December 9, 2019, I filed a letter with the City of Buffalo’s Planning Director/Zoning Administrator, Nadine Marrero, on behalf of myself and four City of Buffalo residents and environmental activists, regarding Queen City Landing, LLC’s latest proposal for the former Freezer Queen property on Buffalo’s Outer Harbor.  You can read that letter (minus the documents accompanying it) here: Giacalone Letter to Zoning Administrator 12-09-19.]

Gerald Buchheit was in a hurry, it seemed, back in 2016 and early 2017, to obtain all the zoning-related approvals he needed for his 23-story, mixed-use project proposed for Buffalo’s Outer Harbor.  And City Hall’s bureaucrats and elected officials were more than willing to accommodate him, by scheduling public hearings before Buchheit’s submissions were complete, proceeding without the thorough environmental assessment that (theoretically) accompanies an Environmental Impact Statement, etc., etc.

Why the rush?  Buchheit’s team needed to have an approved project in place before the long-awaited “Green Code” – known officially as the Uniform Development Ordinance [UDO] – was enacted by Buffalo’s Common Council, signed by Mayor Byron Brown, and placed into effect.

While the developer wished to build Buffalo’s tallest residential tower – in the midst of an important migratory bird pathway, adjacent to the Small Boat Harbor , and in close proximity to the ecologically significant-but-fragile Lake Erie shoreline – the Green Code had a very different vision for the former Freezer Queen site at 975/1005 Fuhrmann Blvd.:  the “N-1S” zoning designation for that property would not only prohibit construction of a tower, it would limit the height of the allowed “building types” to a maximum of six stories.

Buchheit and his team won the sprint to the finish line.  QCL obtained all of the zoning and planning approvals that he needed for his 23-story mixed-use tower prior to the April 3, 2017 effective date of the Green Code/UDO.   [The last of those approvals – the City Planning Board’s approval of a Final Subdivision Plat – was granted on March 13, 2017, just three weeks before the UDO went into effect.]

So Buchheit had managed to avoid the much stricter requirements for the former Freezer Queen project.  But, whether or not he knew it, the need to remain steadfast was not over.

Included among the approvals granted to QCL under the former Zoning Ordinance was the City Planning Board’s January 3, 2017 resolution granting QCL’s Amended Site Plan application.  [That’s the same day Mayor Brown signed the Green Code/UDO into law with a provision delaying the effective date of the city’s new zoning ordinance to April 3, 2017.]

Chapter 511 of the City Code placed an important restriction on a developer who burdens the city officials – and, the public – with proposals to construct a project.  More specifically, Section 511-151 of the prior Zoning Ordinance, entitled, “Limitations on approval,” states:

Section 511-151. Limitations on approval. No design and site plan approval shall be valid for more than one year from the date of issue, unless a building permit is issued and construction has actually begun within that period and is commenced within that period.

The one-year anniversary of the Amended Site Plan approval occurred on January 3, 2018 (as a matter of fact, we are fast approaching the passage of three years from the date the City Planning Board issued its design and site plan approval for QCL’s 23-story tower at the former Freezer Queen site).

According to the City’s Office of Permit and Inspection Service, QCL has never applied for, much less obtained, a building permit to construct the 23-story tower subsequent to its receipt of the January 3, 2017 Amended Site Plan approval. Therefore, pursuant to Section 511-151, QCL no longer has a valid design and site plan approval for the 2016/2017 project.

Not surprisingly, the Green Code/UDO specifically addresses, at Section 1.3 (Transition Rules), the manner in which projects which had been granted approvals prior to the April 3, 2017 effective date of the UDO are to be treated. Generally, such projects may proceed in accordance with the previously granted approvals. However, at Section 1.3.3B, the UDO expressly revokes a prior approval “if the applicant fails to act before any approval expires,” and instructs that the provisions of the UDO then govern. More specifically:

1.3.3 Previously Granted Approvals

…  B.  If the applicant fails to act before any approval expires, including any periods of extension granted, the provisions of this Ordinance govern and the previous approval is revoked.

As a result of the above-quoted zoning provisions, Queen City Landing, LLC, no longer possess a valid design and site plan approval to construct the previously approved 23-story project. And, of even greater significance, the standards and requirements of the Green Code/UDO now govern both the project approved by the City of Buffalo in 2016/2017, and the latest “vanity project” Buchheit has proposed for 975/1005 Fuhrmann Blvd., a 20-story apartment/condominium/event/banquet facility.

Under the UDO, a developer is required to select a “building type” that is allowed to be constructed within the zone where a proposed project is to be located, and the project must comply with the standards for that building type.  The UDO’s “TABLE 3A: BUILDING TYPES” identifies which building types are permitted in each zoning district.

As set forth in Table 3A, the only building types permitted in an N-1S zone – which is 975/1005 Fuhrmann Blvd.’s zoning classification – are “Attached House”, “Civic Building”, “Flex Building”, and “Loft Building”. A “Tower” is a building type that is not “permitted” in an N-1S zoning district.

Additionally, as noted above, a review of the pertinent sections of the UDO indicates that the maximum number of stories allowed for any of the four building types permitted in an N-1S zone is six stories. (See UDO Section 3.2.2E (Attached House, max. 4 stories, 52’); Section 3.2.4E (Civic Building, max. 6 stories, 90’); Section 3.2.7E (Flex Building, max. 1 story); and, Section 3.2.8 (Loft Building, max. 6 stories, 90’).

Clearly, Buchheit’s latest plan – a 20-story mixed-use project – is stunningly inconsistent with the Green Code/UDO’s vision for 975/1005 Fuhrmann Blvd.

And it is also totally out of character with the current and envisioned uses of the Outer Harbor.

Accordingly, at a minimum, the 2019 QCL project requires not only design and site plan review by the City Planning Board, but also substantial variance(s) from the Zoning Board of Appeals.

Two final thoughts for now, regarding the justifications Mr. Buchheit’s team has apparently expressed in an attempt to explain their lengthy delay in proceeding with QCL’s plans for an Outer Harbor tower.

First, an article published in the November 19, 2019 Buffalo News, written by business reporter Jonathan Epstein, reports that , “Construction has been delayed as lawsuits over the project’s approvals moved through the court system.”  In fact, litigation challenging the city’s approvals for QCL’s 23-story tower project ended nearly a year-and-a-half ago, on June 29, 2018, when the Appellate Division, Fourth Department, issued its order dismissing the appeal in Wooster et al. v. Queen City Landing, LLC, et al.  Here’s a copy of the appellate court’s order:

Second, the 11-19-19 Buffalo News article also mentions that QCL used the intervening time “completing remediation at the site.”  However, it was twelve months ago, December 14, 2018, that the NYS Department of Environmental Conservation issued its “Certificate of Completion” for QCL’s Brownfield Cleanup Program. Here’s the DEC’s “Summary of Project Completion Date”:

With All Due Respect,

Art Giacalone