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McGirt v. OK – Historic Tone, But Reasons For Skepticism

Posted by Arthur J. Giacalone on September 15, 2020
Posted in: Native American, US Supreme Court. Leave a comment

The U.S. Supreme Court has historically denied Native Americans the respect owed every human being.

“An ignorant and dependent race.”  “Wards of the nation.”  “Remnants of a race once powerful, now weak and diminished in numbers.”  “Pupils.”  “Communities dependent on the United States largely for their daily food, and for their political rights.”  Such characterizations of “Indian tribes” – ranging from paternalistic, disrespectful, and disparaging, to outright repugnant – can be found repeatedly in nineteenth- and twentieth-century opinions issued by our nation’s highest court.

This condescension towards North America’s Indigenous peoples has been mirrored in the high court’s rulings.  An oft-cited 1885 opinion asserts: “The power of the general government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell.”  Adding injury to its many insults, the Supreme Court presumes that the federal government acts in good faith when it breaches the promises it has made in Native treaties, or totally terminates a reservation: “It is to be presumed that in this matter the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race.”    

If that statement weren’t repugnant enough, our nation’s top jurists uttered what I consider the ultimate expression of “White Privilege.” Finding itself unable to identify a specific provision in the U.S. Constitution granting Congress, even implicitly, “paramount authority” over Native tribes, the Supreme Court justifies the federal government’s absolute power over the Indigenous population by referring to “the policy of the European nations and the United States in asserting dominion over all the country discovered by them.”  In other words, the USA has the power over, and ownership of, the entire country – including Native American tribes – because that’s what White colonizers do, leaving “the Indians” with, at best, a “possessory right to the soil over which they roamed and hunted and established occasional villages.”

[Source unknown. Sentiment understandable.]

In the eyes of the U. S. Supreme Court, Native tribes are not nations, not states, and not sovereigns, but “unique aggregations possessing attributes of sovereignty”.   Although an 1823 decision had described Indian tribes as “wholly distinct nations” within whose boundaries “the laws of a State can have no force,” the high court soon departed from the “conceptual clarity” of that view, and “acknowledged certain limitations on tribal sovereignty.” 

By 1886, the Supreme Court proclaimed that there exists only two entities with the right of sovereignty, “the government of the United States” and “the states of the Union.”  Indian tribes were relegated to a “semi-independent position … not as states, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations.”  As recently as 1983, a unanimous decision (delivered by Justice Thurgood Marshall) included the following statement: “[W]e have acknowledged that Indian tribes have been implicitly divested of their sovereignty in certain respects by virtue of their dependent status, that under certain circumstances a State may validly assert authority over activities of nonmembers on a reservation, and that in exceptional circumstances a State may assert jurisdiction over the on-reservation activities of tribal members.“

Despite this less-than-stellar record, our nation’s preeminent court has congratulated itself for “hav[ing] consistently guarded the authority of Indian governments over their reservations.” What it has done, for certain, is consistently remind Native Americans that Congress possesses the power to take that authority away.

Capitol Hill – January 2008

Given the historical context, it was not surprising to see the jubilation among Native Americans and Indigenous rights activists on July 9, 2020, when the U.S. Supreme Court issued its decision – written by Trump-appointee Justice Neil M. Gorsuch – in McGirt v. Oklahoma.  The McGirt ruling – described below – came at a time when the U.S. was experiencing (and, continues to experience) nationwide demands to eliminate systemic racism and discrimination, and Native American communities were being (and, continue to be) disproportionately impacted by covid-19.

An Overview of McGirt

At the heart of the case is the relevance today of a series of mid-1800s treaties between the federal government and the Muscogee (Creek) Nation.  As with countless other Native treaties, the USA had promised the Creeks (the term the English used to reference the Muscogee people) the proverbial moon. 

In exchange for ceding all their land east of the Mississippi river, the U.S. government agreed in an 1832 treaty that “the Creek country west of the Mississippi (located in what is now Oklahoma) shall be solemnly guarantied to the Creek Indians,” that the lands would become the “permanent home to the Creek Indians,” and that “no State or Territory shall ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.”  In the Treaty of 1856, Congress promised that within their lands, with exceptions, the Creek Indians were to be “secured in the unrestricted right of self-government,” with “full jurisdiction” over enrolled tribe members and their property.” Similar promises were made in an 1866 treaty, but the original territory set aside as the “permanent home to Creek Indians” was reduced in size, with the federal government paying 30 cents per acre as compensation.  

The question before the court in McGirt was a narrow one.  The criminal defendant, Jimcy McGirt – a member of the Seminole Nation of Oklahoma – argued that the sexual crimes for which he had been convicted by the State had been committed within an existing reservation, and, for that reason, under the federal Major Crime Act (MCA), the federal government alone, and not the State of Oklahoma, had the authority to prosecute him.  No one disputed the fact that Mr. McGirt’s crimes were committed on lands in northeastern Oklahoma located within the boundaries of the reduced Creek reservation as described in the 1866 Treaty.  But Oklahoma argued that the land once given to the Creek Indians is no longer a reservation today, emphasizing, among other issues, that tribe members make up less than 10%-15% of the population of their former domain, and the area, which includes most of the city of Tulsa, had lost its Indian character. 

By a 5 to 4 vote, the Supreme Court rejected Oklahoma’s arguments, and concluded that the lands remained “Indian country,” and, for that reason, the State had no right to prosecute Mr. McGirt for his crimes.  As explained by Justice Gorsuch, while Congress has the constitutional authority “to breach its own promises and treaties,” and may have “diminished the promised reservation, and at times sometimes restricted and other times expanded the Tribe’s authority,” it has never clearly withdrawn the promised reservation.  For that reason, the Supreme Court majority, over a strong dissenting opinion by Chief Justice John Roberts, concluded that it would “hold the government to its words.”

Responses to the McGirt decision

The response to the July 9, 2020 opinion was overwhelmingly celebratory.

David Hill, Principal Chief of the Muscogee (Creek) Nation, told the New York Times:  “This is a historic day.  This is amazing.  It’s never too late to make things right.”  A commentator at an influential legal blog, Prof. Ronald Mann of the Columbia law school, wrote: “The decision is a stunning reaffirmance of the nation’s obligations to Native Americans.”  The Indian Law Resource Center declared:  “This case is a significant victory for tribes, and a strong reaffirmation of the legal force of Indian nations’ treaty rights, land rights, and right to self-government.”  A July 12, 2020 article in The Atlantic magazine, under the headline “The McGirt Case Is a Historic Win for Tribes,” proclaims, “In the long Indigenous struggle for justice, McGirt v. Oklahoma might be one of the most important Supreme Court cases of all time.” The article’s author – Julian Brave NoiseCat, a member of the Secwepemc and St’at’imc Nations – quotes the lawyer who represented the Muscogee Nation at the Supreme Court, Riyaz Kanji, as predicting that tribal attorneys “will be quoting that decision for the rest of our lives.”  Social media was permeated with declarations of “Native Lives Matter.”

To be certain, there were also subdued voices, as reflected in the following excerpt from the New York Times’ July 9, 2020 report:

“But experts in Indian law said the decision’s effects would be more muted, and would change little for non-Natives who live in the three-million-acre swath of Oklahoma that the court declared to be a reservation of the Muscogee (Creek) Nation.“

“Not one inch of land changed hands today,” said Jonodev Chaudhuri, ambassador for the Creek Nation. “All that happened was clarity was brought to potential prosecutions within Creek Nation.”

In mid-August, WBFO, Buffalo’s npr station, asked John Kane, a Mohawk activist who hosts a NYC radio show and resides on Seneca Nation territory in Cattaraugus County, his assessment of McGirt’s impact on New York tribes. While Kane considered the ruling historic, he shared the following view:

“[The feds] haven’t wavered at all in their view that they have control. Even as we go from a policy of extermination, to removal, to assimilation, determination, and into self-determination the federal government makes it clear, that when they say self-determination they don’t mean the international standard which is essentially consummates to statehood, they mean internal self-determination.” 

Reasons to restrain one’s expectations

I admit to initially being excited on July 9th when I received the “alerts” from the New York Times and Washington Post regarding the McGirt ruling (made sweeter by Gorsuch’s role). But, I am not an expert in Native American law. Now that I have taken the time to read the opinion closely, and to review dozens of the decisions rendered by our nation’s highest court over the centuries, my jubilation has been tempered by the following realities:

First, the issue decided by the Supreme Court was a narrow one. As noted in the Gorsuch opinion, the only question before the court “concerns the statutory definition of ‘Indian country’ as it applies in federal criminal law under the MCA.”

Second, Mr. McGirt’s case is “a contest between State and Tribe,” NOT a question of the power of Congress to limit tribal sovereignty. The assertion by the five-member majority that, “we hold the government to its word,” does not result in a limitation of federal power, but only to the State of Oklahoma’s authority to prosecute crimes against Native Americans which fall within the provisions of the Major Crime Act.

Third, the McGirt opinion acknowledges, but does not directly criticize, Congress’ major broken promises to the Muscogee (Creek) Nation. At one point it states, “By subjecting Indians to federal trials for crimes committed on tribal lands, Congress may (emphasis added) have breached its promises to tribes like the Creek that they would be free to govern themselves.” Likewise, it states:

“While there can be no question that Congress established a reservation for the Creek Nation, it’s equally clear that Congress has since broken more than a few of its promises to the Tribe. Not least, the land described in the parties’ treaties, once undivided and held by the Tribe, is now fractured into pieces.“

Fourth, there is nothing in McGirt that expresses a willingness to hold the federal government “to its word” regarding the multiple ways it has breached the treaty’s promise to the Muscogee (Creek) people of self-governance, or the 1832 treaty’s “solemn guaranty” that the established boundary lines “will secure a country and permanent home to the whole Creek Nation of Indians.” To the contrary, Justice Gorsuch writes, “This Court long ago held that the Legislature wields significant constitutional authority when it comes to tribal relations, possessing even the authority to breach its own promises and treaties.” Not only that, the penultimate paragraph of McGirt reminds the parties (and, the rest of us) that Congress has the authority to undo, if it so pleases, the July 9, 2020 ruling by the high court: “Congress remains free to supplement its statutory directions about the lands in question at any time. It has no shortage of tools at its disposal.“

Fifth, let’s not forget that the Supreme Court presumes the federal government acts in good faith when it deals with Native American tribes.

Bottom Line:  Muscogee Creek Nation defeated Oklahoma in McGirt – but Congress still makes the rules and defines the playing field (and, that’s OK with the U.S. Supreme Court).

With All Due Respect,

Art Giacalone

 

Were Parkside neighbors perplexed in 1905 by the Darwin Martin House?

Posted by Arthur J. Giacalone on August 21, 2020
Posted in: Parkside Neighborhood, WNY Photos. 1 Comment

Many things have changed in Buffalo, NY since 1905.  The Queen City was the eighth largest city in the USA at that time, with a population exceeding 350,000.  We’re now ranked 87th among our nation’s cities, with nearly 100,000 fewer residents.

There was no such thing as a zoning ordinance at the beginning of the 20th century, and 70 years would pass before SEQRA (the State Environmental Quality Review Act) was enacted to help protect not only the physical environment, but also the character of existing neighborhoods.

What hasn’t changed is the curiosity that existed then and continues today regarding a certain residence in the City of Buffalo’s Parkside neighborhood.

It was 1905 when the man who would later become our nation’s best known architect, Frank Lloyd Wright, completed his “prairie style” masterpiece for a Buffalo industrialist,  Darwin D. Martin.  [Click here if you are interested in learning about the bond that was created between Mr. Wright and Mr. Martin.]

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Situated at the northwest corner of Jewett Parkway and Summit Avenue, Darwin Martin’s residential complex sits on in the heart of the Parkside neighborhood.  Development of this historic district – which hugs the eastern boundary of the Olmsted-designed Delaware Park– started in the 1880s and 1890s, primarily attracting upper-middle-class and professional folk desiring a less-congested form of urban living.

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While the nearby residences in existence at the turn of the century varied in size and style, nothing was comparable to the original five buildings and grounds of the Martin House estate.

Directly across Jewett Parkway from the site was a formidable dwelling – half-timber and half-brick – the residence of the prominent architect, William Wicks.  Boxy and dominated by vertical lines (reflecting late-18th century aesthetics), its nearly 6,000 square feet of living area – one of the largest in the neighborhood – paled when compared to the Martin’s 14,978-square-foot residence.  More significantly, the Wicks house contrasted mightily with rectilinear, horizontally-oriented lines, low hip-roofs and broadly cantilevered eaves of the “prairie style” home built for Darwin and Isabelle Martin and their two children:

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The house next door to the Martin House, 143 Jewett Parkway, was a 3-story Victorian residence constructed at the end of the 19th century on less than a third of an acre of land.  Although that structure was altered substantially over the years, it has been reconstructed to reflect its original appearance, and is now serves as the administrative office for the Martin House complex:

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My first awareness of the Martin House complex came in 1982.  I had just purchased my first house, a modest “North Buffalo double” on Florence Avenue in what is now the Parkside East Historic District.  According to official records, my two-family was built in 1900.

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Wanting a closer look at my new neighborhood, I took a walk up Parkside Avenue.  On my left and across the busy street was Delaware Park – with a “tot lot” where youngsters squealed and parents (in this pre-cellphone age) actually interacted with their children, a stretch of trees, and a fully-utilized basketball court.  On my side of the street were sturdy, traditional one- and two-family residences, including an arts-and-crafts charmer that I ended up calling home several years later.

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On reaching Jewett Parkway (with the entrance to the Buffalo zoo on my left), I hung a right.  My stroll and passing familiarity with Parkside had not prepared me for what I observed a block-and-a-half down the street.  There stood the Martin House, run-down and clearly in need of attention, but magnificent.  And, clearly, a striking contrast to the neighborhood surrounding it.

Although it would be another eight years before I began to represent residents concerned about threats to the environment and the character of their communities. I couldn’t help but wonder:  How did the folks who lived here in the early 20th century respond to this sight/site?

I don’t have an answer to this question (sorry), but I do ask anyone reading this post who does to please share the information with me at AJGiacalone@twc.com.  [I’ll gladly update this post.]

[UPDATE, 08/22/2020:   A friend and former academic librarian and librarian science professor (who wishes to remain anonymous) provided me with the following excerpt from a 2017 issue of American Bungalow Magazine:

https://www.americanbungalow.com/staying-put-in-parkside/

Staying Put in Parkside

By Douglas J Forsyth
From Issue 78 (2017 American Bungalow Magazine)

                                                                 …

Contemporaries were struck by how alien Wright’s buildings were to the existing cityscape. The Illustrated Buffalo Express wrote on 9 October 1904, about the Martin House, then under construction: “Jules Verne might well be the designer of a house that is being built at the northwestern corner of Jewett and Summit avenues in this city. It may be destined to be termed the freak house of Buffalo when it is finished.”vi There is no doubt that Wright intended his buildings as a provocation. The structures in the Martin House Complex are all on rigid axes, oriented to the cardinal points, ignoring Olmsted’s curving streets. (The Church of the Good Shepherd, across Jewett Parkway, is oriented to the curve on Summit Avenue, in contrast, as are the nearby houses.) Wright built the back end of the Barton House so close to the neighboring structure as to inconvenience its owners. When Wright published a version of the Gardener’s Cottage he designed for Darwin Martin in the Ladies Home Journal, in April 1907, he took what Buffalonians would have recognized as a swipe at a similarly sized cottage designed in 1900 by the Green and Wicks partnership, directly across the street from the Martin House Complex, by describing his own design as: “the result of a process of elimination… what remains seems sufficiently complete and the ensemble an improvement over the usual cut-up, overtrimmed boxes doing duty in this class, wherein architecture is a matter of ‘millwork’ and the ‘features’ are apt to peel.”vii

                                                                                …

Footnotes:

vi. Quoted in Quinan, Frank Lloyd Wright’s Martin House, p. 107.

vii. [1]. Frank Lloyd Wright, “A Fireproof House for $5000: Estimated to Cost That Amount in Chicago, and Designed Especially for the Journal,” Ladies Home Journal, 24 (1907) no. 5, p. 24.]

What I do have to offer are photographs of my walk this past week around the exterior of the Darwin Martin House State Historic Site,  described as follows by State park officials:

Today, the Martin House, a National Historic Landmark, has been restored to its glorious zenith of 1907. The museum consists of six buildings, grounds and gardens, and guest amenities including an interpretive visitor center, museum store, and cafe.

As you view the photos that follow, keep the following in mind:

  • Only two of the original five structures comprising the Martin House estate remain, the incomparable main house built for Darwin and Isabelle Martin, and the very first building designed and constructed by Frank Lloyd Wright for Darwin Martin (completed in 1903), the Barton House, for Darwin’s sister and brother-in-law, Delta and George Barton.  [This house served as a test to see whether Darwin Martin could trust FLW enough to proceed to the much larger and more extravagant primary residence.]
  • The original Pergola, Conservatory, and Carriage House/Stable – demolished around 1960 to make way for an incongruous apartment complex – have been reconstructed in recent years, along with the original landscaping plan.
  • The “Gardener’s Cottage” – built in 1905 (but not part of the original estate), representing FLW’s approach to affordable housing – was recently purchased and added to the Darwin Martin Complex.
  • A visitor center -the Eleanor and Wilson Greatbatch Pavilion – is a totally new creation.
  • According to the Martin House official site, “The total approximate cost of this ambitious restoration project was $50 million, which included design and construction of our visitor center, the Eleanor and Wilson Greatbatch Pavilion.”

The Barton House (118 Summit Ave.)

Barton House with sign 08-16-20

Barton House 08-16-20

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The Darwin Martin House (125 Jewett Pkwy.)

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The Gardener’s Cottage (285 Woodward Ave.)

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The Greatbatch Pavilion – Visitor Center

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The Pergola

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The Carriage House/Stable

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The Conservatory & The Nike of Samothrace statue (replica)

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Hope you enjoyed the tour.

With All Due Respect,

Art Giacalone

P.S. Frank Lloyd Wright, role model:

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Barns & Stable at Knox Farm State Park

Posted by Arthur J. Giacalone on August 14, 2020
Posted in: East Aurora NY, WNY Photos. Leave a comment

From 1996 through 2015, my family lived on Knox Road in the Village of East Aurora.  Our modest home was only a few hundred feet from the wooded, eastern boundary of the 600-acre country estate of the Knox family.  The expanse of meadows, pastures, woodlands, wetlands and ponds, which had served for generations as both an active farm and a place where the wealthy rode horses, played polo, and conducted fox hunts, is now the Knox Farm State Park.

The treed rear of our acre-and-a-half lot – which I affectionately called “the hard Knox estate” – was, ecologically, an extension of the nearby estate.  It’s wildlife – including deer, wild turkey, and an occasional red fox – casually shared our backyard.

Fawn in backyard 07-14-11

For nearly two decades, on foot or a bicycle, I traversed or circumnavigated the expansive Knox property.  The red barns were a striking part of the landscape, and pleasantly contrasted with the rolling meadows and tree-lined paths.  To this city-boy, the weather-worn and peeling facades of the farm buildings added to their charm and authenticity.

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An August 7, 2020 headline in the Buffalo News, “Iconic barns at Knox Farm State Park will get makeover,” caught my eye.  As reported by Jane Kwiatkowski, a $100,000 barn rehabilitation project – intended to return the barns “to their former glory” and “make a great first impression of the park for people coming in” – has been approved by the state.  But there is a hitch.  The Friends of Knox Park, a not-for-profit group whose 300 members work to preserve and protect the park, needs $25,000 matching funds before the rehabilitation can proceed.

The idea of reversing decades of neglect and stemming further deterioration makes sense.  Priming and painting seven aging barns, and replacing and repairing the siding, windows and foundation of a particularly weathered building – the heifer barn – are worthwhile tasks.

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But, I do have a suggestion.  If, as noted in the August 7th article, a major purpose for spending $100K is to make “a great first impression” on people coming to the park, beautifying and enhancing the park’s primary entrance on Buffalo Road (Routes 16 and 20A) might be more effective.

Here is a picture of the state park’s rather generic entrance (meant for use by the general public), followed by the gracious gateway to the Knox mansion several hundred yards down the road (restricted for use by guests attending events at the mansion):

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Back to the barns.  Thankfully, for those of us who did not grow up immersed in 4-H Club activities, the various barns and farm buildings at the Knox Farm State Park come with nameplates: Dairy Barn, Bull Shed, Heifer Barn, Milk House, Ice House, Sheep Barn and Show Barn.  Here they are:

DAIRY BARN:

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BULL SHED

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HEIFER BARN

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MILK HOUSE

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ICE HOUSE

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SHEEP BARN

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SHOW BARN

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And, here’s the view from the passenger side of the Park’s department pickup truck pictured above:

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And, the field you pass as you head to the “stable” mentioned in the title of this posting:

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THE STABLE (rear, front)

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If you have the sense that time stands still at the old Knox estate – and swear you hear a voice shouting “tally-ho” across the meadow – you could be right.

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With All Due Respect,

Art Giacalone

P.S.  If you’re interested in learning more about the barn rehabilitation project, you may want to contact Friends of Knox Farm State Park.

 

 

The Most Historic Square Mile in America

Posted by Arthur J. Giacalone on August 6, 2020
Posted in: Lewiston, WNY Photos. 5 Comments

Well, at least that’s what the Village of Lewiston claims.  But, it’s not my purpose to prove or disprove such municipal boasting.

I traveled north from South Buffalo on the I-190 to Lewiston, on a perfect summer’s day, to experience a two or three hour “vacation” in a tourist town (as you can tell, my demands these days are quite modest).  And, I succeeded.

Here are some photos from that “historic square mile.”  I’ll insert a few informative signs in the P.S., for the historically curious readers, so as not to disrupt the flow of the images.

I started my leisurely stroll on the village’s main thoroughfare, Center Street, in what is aptly named the “opera hall district”:

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If I hadn’t just begun my walk, I might have sat down on an inviting bench near an attractive outdoor eatery:

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But I continued a short distance and noticed a spot – apparently created in 2012 to commemorate the 200th anniversary of the War of 1812 – that I had never noticed before, the Bicentennial Peace Garden:

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I got the impression that the pensive (confused?) figure above is wondering how the powers-that-be allowed the following “work of art” to be visible from the quietude of the peace garden:

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The Peace Garden is tucked behind one of the oldest structures in Lewiston, the Little Yellow House, standing proud(ly) since 1816:

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While the next picture breaks my promise to keep photos of informative signs until the end of this array, I must say that nothing says more about a chamber-of-commerce campaign to resonate “historic” than adding an unnecessary consonant to the end of a word:

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Here’s the controversial Frontier House, once, shockingly, the home of a McDonald’s restaurant, and now vacant:

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I took a detour off the main street to get a glimpse of the Lewiston Village Hall (and, somehow, never thought about taking a photo or two).  I then headed away from the “urban” setting and walked down a steep hill to get a glimpse of the Niagara River and water’s edge:

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I wasn’t certain whether these stairs were meant for the public, so I just took a couple photos from above:

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Of course, no touristy waterfront would be complete without a popular eatery, The Silo, and a caboose-turned-ice-cream-stand (note: I was “bearly” able to control my urge for an ice cream cone):

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Geography being what it is, my return to the historic village entailed a walk back up a steep hill.  By the time I reached the summit, I was no longer in a mood for dawdling.  I am feeling in a similar frame of mind as I find myself running out of steam composing this post, so here are several photos left to speak for themselves:

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[Please, you feline lovers out there, don’t hate me for proclaiming:  I will never, voluntarily, have coffee and dessert at an establishment with the above name.]

With All Due Respect (for the most historic square mile in America),

Art Giacalone

P.S.  Here are a few of those informative signs I promised the curious among you:

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Delaware Park is Next Stop on “Covid-19/ Resurgence” Summer Tour

Posted by Arthur J. Giacalone on July 27, 2020
Posted in: Byron Brown, Cazenovia Park, City of Buffalo, Covid-19/Coronavirus, Olmsted Parks, South Buffalo. Leave a comment

Pints-in-the-Park Summer Tour 2020

Mayor Byron W. Brown issued a July 16, 2020 press release in which His Honor cautions City of Buffalo residents of the continued dangers we face regarding the coronavirus:

COVID-19 remains a threat to our community and we cannot afford to let our guard down at this time. We must remain vigilant and continue to take the necessary precautions to maintain public health and safety. Please continue to practice physical distancing and wear face coverings when going out.

The Mayor followed that plea with a press conference July 24th announcing “an innovative and safe dining experience initiative that will enable restaurants to offer outdoor dining services to patrons” on a stretch of Chippewa Avenue. We were told that each of the 10 or so participating eating-and-drinking establishments “will safely operate while practicing New York State social distance guidelines and requirements.” Not only have their plans been reviewed by Mayor Brown’s Small Business Social Distancing Advisory Committee (SBDAC), but, as reported by WBFO, Mayor Brown said it’s important for patrons and proprietors to understand – this is not meant to be a block party: “This isn’t to allow mass gatherings on Chippewa. This is to allow more room to socially distance.”

No, the block party – where, it appears, you can get away with not wearing a face covering and adhering to social distancing and other health guidelines intended to slow the virus spread – was occurring on July 24th and 25th several miles away in South Buffalo’s Cazenovia Park.

While bicycling through my neighborhood park at 8 PM on the Friday the 24th I observed at least 60 or 70 Pints-In-The-Park attendees, many of whom were not following the posted (and, by now, well known) Covid-19 protocols. I saw a similar scene at 6 PM on Saturday.  Here’s a sampling:

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I have since confirmed that the City of Buffalo had issued a permit to (a rather aptly-named) Resurgence Brewing Company to host pop-up beer gardens – with the cutesy moniker, Pints-In-The-Park. Here’s how the events are described at Resurgence’s facebook page:

All Pints in the Park events will be held in Olmsted Parks with a portion of proceeds going toward the Olmsted Parks Conservancy.

Bring your own blankets and chairs and your mask for when you are up and walking around. We’ll provide the beer. Feel free to bring your own food as well. Bring the family, bring the dog and have a Pint, with us, in beautiful Cazenovia Park. We’ll be located next to the casino.

I found the city’s willingness to use our city park’s for this sort of commercial endeavor distasteful last year when I first became aware of it occurring in Caz Park. And, frankly, I was even more offended at that time when I realized Buffalo Olmsted Park Conservancy’s involvement – tacitly, or otherwise – in the endeavor.

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But I find the concept of a pop-up beer garden in our public park’s even more problematic in the summer of 2020. It is hypocritical, at best, for Mayor Brown’s administration to issue public statements urging the public, on the one hand, ”not to let our guard down” and to “remain vigilant” to the threat of Covid-19, while it allows residents to gather in Cazenovia Park in large numbers and hold a pint of beer, in the other hand, without ensuring enforcement of our state’s social distancing guidelines and requirements.

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I know that my sentiment will not be universally popular. But, nonetheless, I want to provide this shoutout to my friends and colleagues in North Buffalo:

THE RESURGENCE BREWING COMPANY’S PINTS-IN-THE-PARK SUMMER TOUR IS SCHEDULED TO POP-UP IN DELAWARE PARK ON AUGUST 7 & 8.

With All Due Respect,

Art Giacalone

P.S. Concerns have been raised for months that the Covid-19 pandemic has resulted in skyrocketing alcohol sales, and has raised concerns regarding substance abuse. See, for example, this.]

1 in 3 Young Adults is Medically Vulnerable to SEVERE covid-19 Illness

Posted by Arthur J. Giacalone on July 20, 2020
Posted in: Covid-19/Coronavirus. 1 Comment

The fact that this estimate is halved to 1 in 6 for non-smoking young adults is little comfort to this father of a son and daughter in their twenties.

The thought of writing about covid-19 and its impacts had not been part of my plans. That all changed this past weekend.

A beloved family member sent me a link to a July 9, 2020 video being disseminated across the internet by “reopen America” advocates. The so-called “facts” and “realities” expressed by the interviewed physician ranged from blaming the recent spike in covid-19 cases on “massive protests and rioting” across our country, to insistence that wearing masks has “very little utility in stopping the spread” of the virus and that hydroxychloroquine works “wonderfully well,” to espousing that schools reopen “with almost no restrictions.”

But what caught my attention and motivated this post was the commentators repeated claims that 31 year-olds – the average age of those currently testing positive for covid-19 – “have an easy time with the virus,” and should go about living their lives without worrying about being susceptible to the virus. I find these assertions reckless and dangerous.

According to health departments across the U.S., younger people are making up a higher percentage of those infected with the coronavirus. Seemingly, many younger Americans have the misimpression that their youth renders them invincible to any serious harm from covid-19. Perhaps a study published on July 13, 2020 in the Journal of Adolescent Health, will provide a strong dose of reality to the less-conscientious members of the younger generation (as well as their parents).

The study’s authors, analyzing National Health Interview Survey statistics for over 8,400 young adults aged 18-25 years, reached the following conclusions:

– Nearly one in three young adults are medically vulnerable to severe COVID-19 illness (32%).

– In contrast, in the nonsmoking young adult group, only about one in six is medically vulnerable to severe COVID-19 illness (16%).

– Among nonsmokers, females were significantly more likely to be medically vulnerable than males, because of their higher asthma and immune condition rates.

– Unexpectedly, the findings revealed a lower medical vulnerability of racial/ethnic minorities compared with the white subgroup, despite controlling for income and insurance status.

[Here’s the original article in its entirety: Medical vulnerability of Young Adults to Severe COVID-19 Illness 07-13-20 ; also, more generally, here’s a recent article at Johns Hopkins medical center’s website entitled, “Coronavirus and COVID-19: Younger Adults Are at Risk, Too”: https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/coronavirus-and-covid-19-younger-adults-are-at-risk-too.]

While investigating the potential impact of covid-19 on younger Americans, I also came across information relating to two other specious assertions in the “reopen America” propaganda piece, the purported ineffectiveness of face masks and effectiveness of hydroxychloroquine.

Face masks: Intentionally or not, anti-mask advocates often blur two issues, the effectiveness of a mask in protecting its wearer from contracting Covid-19, and the usefulness of the mask as a tool to limit the spread of the virus, especially by an asymptomatic person. I find the explanations given by the Mayo Clinic and the U.S. Centers for Disease Control (CDC) much more persuasive than assertions of the naysayers. Here’s what the Mayo Clinic says:

Can face masks help slow the spread of the coronavirus (SARS-CoV-2) that causes COVID-19? Yes, face masks combined with other preventive measures, such as frequent hand-washing and social distancing, help slow the spread of the virus.

So why weren’t face masks recommended at the start of the pandemic? At that time, experts didn’t know the extent to which people with COVID-19 could spread the virus before symptoms appeared. Nor was it known that some people have COVID-19 but don’t have any symptoms. Both groups can unknowingly spread the virus to others.

These discoveries led public health groups to do an about-face on face masks. The World Health Organization and the U.S. Centers for Disease Control and Prevention (CDC) now include face masks in their recommendations for slowing the spread of the virus. The CDC recommends cloth face masks for the public and not the surgical and N95 masks needed by health care providers.

Hydroxychloroquine: I’m naïve enough to have been stunned to hear a self-proclaimed medical expert insist that research and studies show that hydroxychloroquine “works wonderfully well.” On July 16, 2020, a randomized trial with over 400 non-hospitalized participants, entitled, “Hydroxychloroquine in Non-hospitalized Adults With Early COVID-19,” was published in the American College of Physicians Journal, Annals of Internal Medicine. That study concludes that hydroxychloroquine “did not substantially reduce symptom severity in outpatients with early, mild COVID-19.” [I can’t help but wonder how soon the video’s propagandist will update his prior statements.]

Two final comments relating to the coronavirus.

First, if you’re into statistics and graphs, Johns Hopkins University has an up-to-date timeline of covid-19 policies, cases, and deaths in all 50 states, taking a look at how social distancing and other measures may have influenced those trends.

Second, as someone who took several constitutional law classes in law school, who has attended a variety of Continuing Legal Education seminars on constitutional law and civil rights over the decades, who has on occasion asserted constitutional claims on behalf of my clients (and, myself), and who continues to read and think about contemporary constitutional issues on a regular basis, I cannot fathom how any sensible lawyer could reach the conclusion that U.S. citizens have a constitutional right not to wear a mask in public. To me, that position is, frivolous, at best. It is akin to saying that we have a constitutional right not to use headlights or taillights when driving our cars at night, or windshield wipers when driving in the pouring rain, and proclaiming: Public safety and welfare be damned!

With All Due Respect,

Art Giacalone

P.S. I have intentionally not referenced the source of the offending video, or the speakers expressing their “realities’ and “facts.” I don’t wish to provide them any publicity. However, I did check into the background and funding sources of the website, and biographies of the two individuals on screen. In a nutshell, my research shows they all are so agenda-driven as to raise legitimate questions regarding the objectivity and accuracy of their assertions. Most troubling to me, as I attempt to conscientiously assess these complex scientific issues, is the primary funding source for the website: two billionaires who not only have spent a fortune advocating “human influenced climate change denialism,” but who are also believers in the scientific accuracy of the Bible.

Legal Challenge to The Lawrence apartment project

Posted by Arthur J. Giacalone on July 9, 2020
Posted in: B-N Medical Campus, City of Buffalo, Development, Fruit Belt, Gentrification, Green Code, SEQRA, Zoning Law. Leave a comment

[I wrote on June 19th about my disappointment in the City of Buffalo Zoning Board of Appeals’ June 17, 2020 granting of 13 variances for “The Lawrence” apartment facility – straddling Michigan Ave. and the Fruit Belt’s Maple Street.  This week I filed a lawsuit challenging the approvals by both the ZBA and City Planning Board of that project.  What follows is my press release announcing the legal proceeding in Erie County Supreme Court.  Here’s WBFO’s response to the lawsuit, here’s the BuffNews article , and here’s BusinessFirst Buffalo’s version.  If you’re really curious (and, perhaps, a bit of a masochist), here’s the 72-page Verified Petition commencing the CPLR Article 78 proceeding:  Verified Petition Gidney v. Buffalo ZBA et al.]

July 9, 2020

CITY’S APPROVAL OF “THE LAWRENCE” APARTMENT COMPLEX ON FRUIT BELT’S WESTERN BOUNDARY CHALLENGED IN STATE COURT

 – The lawsuit claims that Buffalo’s Zoning Board and Planning Board disregarded the requirements and intent of City’s “Green Code”, and ignored the character of the adjoining residential neighborhood, to enable the developer to make a profit –

Michigan-Redev LLC spent around $2 million to buy 15 parcels of land across Michigan Avenue from the Buffalo Niagara Medical Campus in 2016 and 2017. At the time, most of the parcels were assessed in the $4,000 range. Six of the lots face Michigan Avenue and the medical campus, and 9 front on Maple Street, a traditional neighborhood of small homes, peaked roofs, and side yards. Under zoning laws in existence when the developer began assembling the one-acre site, a maximum of 27 apartments could be built. When the City enacted its new zoning ordinance early in 2017 (the Unified Development Ordinance or “Green Code”), the allowable number of residential units that could be constructed “by right” rose to around 57.

In August 2019, Michigan-Redev’s agent, Symphony Property Management LLC, went to the City with plans for an apartment complex they called “The Lawrence.” Little effort was made to comply with the Green Code’s limitations. Instead, the developer told city officials that they were unable to make a reasonable return on their $2 million investment unless they were allowed to construct a 129-unit building. On June 17th, following two revisions and multiple public hearings, Buffalo’s Zoning Board of Appeals (ZBA) granted Michigan-Redev thirteen (13) variances from the existing Green Code requirements – many substantial in size – approving a 133-unit structure, over 250’ long and 4 stories high on Maple St., and nearly 180’ long and 5 stories high on Michigan. On June 29th, the City Planning Board gave the project its approval.

On July 8, 2020, petitioners Elverna D. Gidney, whose family has owned a home about a block from The Lawrence site for nearly 60 years, and Lorna Peterson, a retired university professor who has worked tirelessly since 2014 to preserve and enhance the historic Fruit Belt community, filed a lawsuit in Erie County Supreme Court seeking to annul the ZBA and Planning Board approvals. The case, Elverna D. Gidney v. Zoning Board of Appeals of City of Buffalo, Index No. 806735/2020, is assigned to the Hon. Frank A. Sedita, and is scheduled to be heard 08/26/20.

Petitioners’ counsel, Arthur J. Giacalone, explains the reasons for his clients’ lawsuit:

The ZBA and Planning Board have the duty to protect the integrity of our zoning laws, and the character of our neighborhoods. They chose, instead, to protect the pocketbook of a developer who cavalierly ignored zoning requirements when purchasing the land. By decimating the Green Code, these boards disregarded the standards set by Buffalo’s Common Council, and exceeded their lawful authority. If their approvals are not reversed, the Fruit Belt will suffer further speculative buying and unjust gentrification.

 Inquiries or requests for copies of the court papers should be addressed to Arthur J. Giacalone, at (716) 436-2646 or AJGiacalone@twc.com. Thank you.

With All Due Respect,

Art Giacalone

Visiting the coast of Maine

Posted by Arthur J. Giacalone on July 9, 2020
Posted in: Maine. Leave a comment

I recently learned that a friend – having adjusted fairly well to the premature ending of tutoring this school year – has now accepted the fact that the family’s annual vacation to Maine won’t be happening this summer as a result of Covid-19.  I feel bad, knowing how wonderful a trip to the pine tree state can be this time of year, and sharing the near-universal desire to escape to “somewhere else.”

The least I can do on this miserably hot July day (current temperature 96 degrees) is put together a virtual trip to the Maine coast (and, relive some favorite memories).

Enjoy.

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Mt. Desert Island

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Anchored Boats

Boat Graveyard

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Purple Hill 2

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Balcony

Museum - Bridge

Seagull blues

Solitary Seagull

Swirl

Biddeford, ME (Vacant)

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With All Due Respect (for nature’s beauty),

“Mr. Art”

 

 

 

 

Zoning Board’s trampling of Green Code rewards Fruit Belt speculators and emboldens gentrification

Posted by Arthur J. Giacalone on June 19, 2020
Posted in: B-N Medical Campus, City of Buffalo, Development, Fruit Belt, Gentrification, Green Code, Zoning Law. Leave a comment

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.

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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.

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– 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.

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– 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.

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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:

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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):

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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,

Art Giacalone

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]:

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