With All Due Respect

[Update:  When I wrote this post in late January, I whimsically suggested how nice it would be to hold a forum to discuss the failings 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