Our state’s highest court expressed the following warning nearly a century ago concerning the power of a zoning board of appeals [ZBA] to grant “variances” from a zoning law’s requirements: “There has been confided to the Board a delicate jurisdiction and one easily abused.” The author of such elegant prose, Chief Judge Benjamin N. Cardozo, must have foreseen an inexplicable (but, sadly, not surprising) decision on June 17, 2020 by the City of Buffalo’s ZBA.
A “variance” is described in Buffalo’s zoning code [the Uniform Development Ordinance (UDO), informally known as the “Green Code”] as follows:
“A zoning variance allows a narrowly circumscribed means by which relief may be granted from unforeseen applications of this Ordinance that create practical difficulties or particular hardships.” [UDO, 11.3.5(A)]
As the words “narrowly circumscribed” suggest, this tool is intended as a scalpel. Unfortunately, in Buffalo’s City Hall, it is relentlessly wielded as an axe.
On June 17th, a 3 to 2 vote by Buffalo’s ZBA – with “Ayes” by Chairman Rev. James A. Lewis, Janice McKinnie and James Hornung Jr., and “Nayes” by Bernice Radle and Thomas Dearing – granted the request by Symphony Property Management LLC and Michigan-Redev LLC to circumvent eleven requirements of the Green Code to allow construction of a 133-unit apartment development known as “The Lawrence.” The controversial project straddles Michigan Avenue and Maple Street, and represents both a massive encroachment into the Fruit Belt neighborhood, and, as will be addressed below, an utter disregard of the UDO/Green Code’s vision for that community.
The site of the Symphony’s proposed project is an assemblage of 15 parcels – 6 on Michigan Avenue facing the Buffalo Niagara Medical Campus and zoned N-2E (“Mixed-Use Edge), and 9 on Maple Street, a residential neighborhood, zoned N-2R (“Residential”). Buffalo’s Common Council unanimously approved the UDO/Green Code on December 27, 20216. On December 23rd, just four days earlier, Michigan-Redev LLC purchased 11 of the 15 parcels (plus three adjoining lots) for the astronomical price of $1.75 million. According to an April 2014 Buffalo News article, it had only cost the sellers “about $100,000 to purchase, demolish and maintain” the parcels “The Lawrence” developers chose to buy for seventeen-and-a-half times that amount.
The intent of the N-2R zoning district on Maple Street (and, the vast majority of the Fruit Belt neighborhood) is clearly set out in the Green Code’s dimensional requirements. The N-2R zone envisions a residential district comprised of moderate size residential buildings (a maximum of 3-stories high), on moderate size lots (no wider than 60’), and separated by side yards at least 3-feet wide on each side. And, to underscore the goal of moderately dense N-2R neighborhoods, the UDO imposes a “Residential density” maximum of one unit for each 1,250 square feet of lot area.
Michigan-Redev LLC and its co-applicant, Symphony Property Management (by its principal, Timothy Leboeuf) never made an effort to comply with the requirements of the UDO/Green Code. And, even more disturbing, the applicants’ attorney, Marc Romanowski, Esq., commented several months ago that Symphony was encouraged by Mayor Byron Brown’s Office of Strategic Planning staff – the folks who drafted the Green Code – to ignore the limitations mandated by the zoning code and proceed with a monumentally non-compliant proposal.
Despite the “narrowly circumscribed” role of a variance, Michigan Redev LLC and Symphony asked Buffalo’s ZBA to, in effect, decimate the UDO’s N-2R requirements in order to provide relief from a fully foreseeable and self-created hardship: that is, their need to overcome the huge price Michigan Redev had voluntarily paid for the 15-lot assemblage by allowing the developer to build a large, high-density project, out-of-scale and character with the Fruit Belt neighborhood, and requiring multiple and substantial variances. In response, although they hemmed and hawed for months, the ZBA majority, in the end, abused its “delicate jurisdiction,” and took an axe to the Green Code’s letter and intent by approving the applicant’s March 5, 2020 proposal.
Here are the relevant figures:
– Number of units/density. By right, under the UDO, Symphony could lawfully build 21 apartment units on the 9 parcels located on Maple Street, one unit for every 1,250 square feet of lot area. By comparison, the 9 closest existing homes on Maple Street have a total of 17 units on nine parcels (which translates to one unit for every 2,345 square feet of lot area). Symphony disregarded both the Green Code’s restrictions, and the existing neighborhood density, and requested, and the ZBA approved, 68 units in the N-2R zone. In other words, thanks to its unbridled use of the variance tool, the ZBA majority will allow Symphony to construct 3.23 units for each unit permitted under the Green Code.
– Lot width/length of building. The nine Maple Street lots owned by Michigan Redev LLC total 260-feet in width, or an average of about 30’ each. The Green Code generously allows a property owner a maximum lot width of 60 feet. In other words, under the UDO, Symphony could construct, by right , 5 buildings on 5 lots ranging in widths from 48’ to 53,’ and, in doing so, not overwhelm the adjoining residential community. From the start, however, the voracious developer proposed one 254-foot long building on the 260-foot wide lot. And, the ZBA majority (Lewis, McKinnie and Hornung) generously approved Symphony’s request.
– Side yards/open space. Reflecting the traditional, medium-density character of the residential Fruit Belt streets, the Green Code requires each lot to have a 3-foot side yard, with a minimum total side yards of 15% of the lot width. The 260-foot wide lot for “The Lawrence” would require, under the existing zoning law, 52 feet of side yards.? So, what did the greedy, speculating developer request, and the UDO-trampling ZBA majority approve? An incredible total of six-feet of side yards on a 260-foot parcel.
– Number of stories. Not one of the nine closest homes on Maple Street exceeds two stories in height. Nonetheless, the N-2R zone allows an owner to construct a building with a maximum of three stories. Despite the scale of the existing neighboring residences, and the 3-story limit in the Green Code, Symphony requested, and the ZBA majority granted, permission to build a 4-story, 254-foot wide apartment building on Maple Street.
Although you can’t see the height of the structures, here are site plans, showing, first, the footprint of what could be built to comply with the UDO/Green Code, and then what the June 17th variances allows:
Also, here is the architectural drawing of the Maple Street “elevation” approved for “The Lawrence,” followed by a photograph of the three-unit, two-story residence on the 85-foot wide lot directly across Maple Street from the proposed site of “The Lawrence” (the largest of the nearby houses):
In my opinion, the decision made by Buffalo’s Zoning Board of Appeals’ majority on June 17, 2020 will a detrimental impact on the fabric of the historic Fruit Belt neighborhood. The ZBA’s misguided determination will further embolden developers to pay outrageously high prices to assemble large parcels of land – despite the restrictions codified in Buffalo’s zoning laws – with a renewed confidence that Buffalo’s City Hall will allow them to duplicate – if not surpass – Symphony’s out-of-scale and out-of-character apartment project. In doing so, the gentrification of the Fruit Belt – that is, the process of displacing current, low-income, African-American and Hispanic residents with more affluent and whiter occupants – will proceed unabated.
In 2004, our state’s highest court expressed its belief that a municipality’s zoning board is “entrusted with safeguarding the character of the neighborhood in accordance with the zoning laws.” That court has also held that lot size, density, and the scale and style of nearby homes are relevant factors when considering a proposed project’s impacts on a neighborhood’s character.
I’ll let you decide whether Buffalo’s ZBA has lived up to its fiduciary duty to the residents of the Fruit Belt neighborhood.
With All Due Respect,
P.S. Here is a copy of my most recent letter in opposition to the proposed variance application, submitted to the ZBA – by way of the Office of Strategic Planning – on June 15, 2020: The Lawrence – Giacalone 06-15-20 ltr to ZBA.
P.P.S. When reading the post following its publication, I noticed that I had forgotten to mention the arguments, repeated ad nauseum by Symphony’s lawyer, and embraced in city hall’s staff report, on why the massive scale of the building, and flagrant disregard of the Green Code’s lot width, side-yard, density, and height restrictions, would barely be noticed by nearby residents, and would not adversely impact the existing neighborhood character: (1) the revised plan (see the “elevation” drawing above) “break[s] up the building design” and “mimics” 3 or 4 building structures”; and, (2) two 25-foot by 20-foot recesses in the Maple Street façade – characterized by Symphony as “patios” – “create 50’ of open space within the façade, greatly minimizing the impact of a loss of side yard separation.” In fact, UDO requires side yards to be actual open spaces, extending from the front yard to the rear yard line. As proposed, the patios extend about a quarter of the depth of the lot, and then meet a 4-story wall and the rest of the apartment building. The following landscape plan gives you an idea of just how minimal the patio “recesses” actual are [I’ve highlighted the patios in yellow]: