Byron Brown

Proposed Linwood Lafayette UDAA shamelessly distorts intent of law

Posted by Arthur J. Giacalone on April 2, 2019
Posted in: Byron Brown, City of Buffalo, Corporate Welfare, Political Contributions. Leave a comment

Some might call the proposed formation of the Linwood Lafayette Urban Development Action Area (UDAA) – at the former Millard Fillmore Gates Hospital campus – a creative use of an urban renewal agency’s powers.  I see it as a shameless distortion of a tool intended to correct conditions in municipally-owned slums and blighted areas.

Linwood Lafayette UDAA map

Article 16 of the State’s General Municipal Law (GML) is entitled “Urban Development Action Area Act.”  Its “policy and purposes” section recognizes the existence of “municipally-owned areas” which are slum or blighted, or are becoming slum or blighted areas.  In order to ameliorate the blighted conditions in these municipally-owned areas, Article 16 gives cities such as Buffalo broader rights and powers to offer enhanced tax incentives and financial aid to encourage business enterprises to undertake corrective projects.

Buffalo’s Common Council has designated the Buffalo Urban Renewal Agency (BURA) as the agency authorized to carry out the purposes and provisions of GML Article 16.  According to its mission statement, BURA strives to “create quality and vibrant living in Buffalo New York through neighborhood driven development projects.”  Its website expressly encourages Buffalo residents “to be involved with BURA,” and states that its “goal is quite simple:  to become a resource and partner to City residents, community development agencies, and staff in seeking results to the most pressing issues facing the Buffalo area.”

Under its current leadership, however, BURA is pursuing a different goal:  to provide corporate welfare to financially-troubled private developers, in this instance, TM Montante Development and the Montante Group Companies.

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BURA is controlled by Mayor Byron W. Brown.  As Mayor, Brown sits as chair of BURA’s nine-member board of directors.  Three of the board’s members hold high-level positions in the Brown Administration (and, therefore, serve at the pleasure of the Mayor):  the Executive Director of the City’s Office of Strategic Planning (Brendan R. Mehaffy), who also functions as BURA’s Vice-Chairman; the City’s Corporation Counsel (Timothy A. Ball, Esq.); and, the City’s Commissioner of Administration and Finance (currently, Donna Estrich).  The Mayor also hand-picks two citizen board members, ensuring his command over a majority of the 9-person board.

Neither the process used to prepare the proposed Linwood Lafayette UDAA, nor the substance of the proposal presented to the City of Buffalo’s Planning Board and Common Council, complies with the requirements, purposes, or intent of either the Urban Development Action Area Act, or BURA’s own mission statement:

Deficiency No. 1.  The official request to create the Linwood Lafayette UDAA, submitted to the City’s Common Council and Planning Board in February 2019, states that it is BURA that “respectfully requests” the designation.  However, a review of the agendas and minutes of the BURA Board of Directors – from March 2019 back to June 2018 – discloses that the BURA’s governing body never considered, much less approved, the request to proceed with the Linwood Lafayette UDAA designation.  [So much for transparency and neighborhood-driven development projects.]  Had the topic been placed on the board of directors’ agenda, its members (including three Common Council members), the media, and, most importantly, the public, would have known in advance of this “creative” use of GML Article 16’s incentives and financial aid.

[Note:  It appears that the “permission request” filed with the Common Council was prepared by Scott Billman, BURA’s Counsel. Frankly, I would not be surprised if Mr. Billman was merely following instructions from the head of the Mayor’s Office of Strategic Planning (and, BURA Vice-Chair), Brendan Mehaffy.]

Deficiency No. 2.  No objective, rational observer would describe the community within which BURA proposes to create the Linwood Lafayette UDAA as a slum or blighted area.  Even the intended beneficiary of the proposed UDAA – TM Montante Development – proclaims that its proposed “Lancaster Square” project is “located in a premier urban, mixed-use neighborhood that the American Planning Association has selected as one of the 10 best neighborhoods in America.”

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Deficiency No. 3.  The “policy and purposes” of Article 16 is to provide incentives to eliminate slum or blight, or prevent slum or blight, in “municipally-owned areas” which were acquired pursuant to urban renewal powers, condemnation powers, or tax foreclosures.  [See GML Section 691.]  Article 16’s focus is not privately-owned real property.  Despite this fact, BURA’s request for UDAA designation is premised on “the present condition of the privately owned real property in the area [that purportedly] impairs the growth and development of the City of Buffalo municipality because the area is at significant risk of further deterioration and blight …”

[Note:  To the extent that the existing “blight” is created by demolition debris not promptly removed by TM Montante, Common Council President and Ellicott District Member Darius Pridgen and other elected and appointed officials must be asked:  Why haven’t you insisted that the City’s inspection office compel the property owner to comply with Section 103-38(E) of the City of Buffalo Code?  That provision requires removal of “material and debris resulting from demolition” within 5, 10, or 45 days, depending on the height of the demolished structure.] 

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Deficiency No. 4.  Consistent with Article 16’s policy and purposes, an area designated as an “urban development action area” must be “appropriate for urban development,” and at least 60% of the UDAA must consist of city-owned real property.  In a tortured effort to meet the 60% city-owned-real-property requirement of Article 16, the “creative” authors of the permission request have drawn the boundary lines of the UDAA to artificially include the entire width of adjacent public roads (that is, Delaware, Lafayette, and Linwood avenues), and historic Gates Circle.  These public rights-of-way were undoubtedly not acquired through urban renewal powers, condemnation, or tax foreclosure procedures.  And, in this context, they certainly cannot objectively be treated as areas “appropriate for urban development”:  TM Montante is not proposing to “develop” these public streets and adjacent traffic circle.  Additionally, even the site’s vacant parking garage, while clearly city-owned real estate and (it would appear) deteriorating, was built and operated for decades as a municipal parking ramp, and, presumably, is not the product of a recent condemnation or tax proceeding.  [See Buffalo Courier Express article from 1975: BCE19750122 re parking ramp .]

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Deficiency No. 5.  Article 16 envisions the use of enhanced financial aid and tax relief as incentives to encourage otherwise hesitant business enterprises to participate in programs to correct blighted and deteriorated conditions on city-owned property.  The UDAA program is not intended to bail out a private developer who enthusiastically proposes and commences a massive development project, but then, in the words of the Buffalo News, “needs a new partner and financial help to make the project work.”  The Mayor-controlled BURA and Office of Strategic Planning have improperly and unwisely chosen to use BURA’s powers and resources, not to stimulate neighborhood-driven development, but to bail out a well-heeled, politically-connected developer.

[Note:  Although Darius Pridgen has only received a pedestrian $200 political contribution from TM Montante Development, in the past five years TM Montante and the Montante Group (which includes TM Montante and Montante Construction) have made generous contributions to:  Mayor Byron Brown ($1,000),  Councilmember Joel Feroleto ($1,000), State Assemblyman Sean Ryan ($1,000), State Senator Tim Kennedy ($1,850), and State Assemblywoman Crystal Peoples ($3,500).]   

Buffalo residents deserve an agency that truly focuses on “neighborhood driven” projects – rather than developer-driven handouts – and that works to benefit the public, rather than politically-astute development companies.

So, Buffalonians, get involved, and demand that your elected Common Council members deny BURA’s requested to designate the proposed Linwood Lafayette UDAA.

With All Due Respect,

Art Giacalone

P.S.  The Linwood Lafayette UDAA proposal is not the first time that Mayor Brown’s BURA has been involved in activity that appears to me to not further the interest of the public.  See for example Op-Ed – The Mayor The Carlo and BURA sent 03-06-13.

P.P.S.  Likewise, the Linwood Lafayette UDAA proposal is not the first time Buffalo’s “leaders” have embraced an unworkable and inappropriate plan for this site.  See Kaleida Health’s 7-12-2013 press release announcing Chason Affinity’s failed effort to recruit a veterinary school to the former Millard Fillmore Gates Circle campus: Kaleida press release 07-12-13 re Gates Circle

Buffalo’s City Comptroller must be an independent fiscal watchdog, not a Byron Brown loyalist

Posted by Arthur J. Giacalone on March 10, 2019
Posted in: Byron Brown, City of Buffalo, Mark Schroeder, Political Contributions. Leave a comment

The City of Buffalo Charter (its “constitution”) creates two systems of checks and balances at City Hall:

First, the Mayor is given executive and administrative powers, while all “legislative power” – that is, the power to enact local laws and ordinances in accordance with the state constitution and laws – is placed (at least, officially) in the hands of the Common Council.

Second, the Charter creates the position of City Comptroller, and makes the Comptroller “head of the department of audit and control.”  Unlike the other city department heads – who are all appointed by the Mayor, confirmed by the Common Council, and serve at the pleasure of the Mayor – the City Comptroller is an elected office, chosen citywide by the voters every four years.  This arrangement helps ensure that the Comptroller functions independently from the Mayor and Common Council, and can serve city residents and taxpayers as an independent “fiscal watchdog.”

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As the Buffalo News editorial board recently observed, the office of Comptroller demands “checks and balances,” and the woman or man holding the position “must be independent enough to challenge any mayor on finances when appropriate.”

I believe that it is more critical than ever that the City Comptroller be an effective, independent watchdog.  That’s all we Buffalonians currently have.  The Common Council has effectively set aside its role as a counter-weight to Mayor Byron W. Brown and his administration.  To an unhealthy and unacceptable extent, our councilmembers acquiesce to the Mayor’s office and administrative appointees when it comes to formulating policy and identifying a vision for the Queen City’s future.  Absent are signs of the meaningful checks and balances envisioned by the Charter between the executive/administrative and legislative branches.

A prime example of our docile legislature was the Common Council’s belated and ineffective role in drafting, assessing, and enacting the city’s most significant “legislative” initiative in decades, the Uniform Development Ordinance (UDO), known informally as the “Green Code.”  [Note: I have previously expressed my thoughts on this topic at an October 2015 post,]

An independent City Comptroller is now the sole source of effective checks and balances at City Hall.  But that independence is threatened when a vacancy occurs in the midst of a four-year term, and the Common Council, and not the voters, fills the empty seat.  That is precisely where we find ourselves now.

The City Comptroller position has been vacant since February 1st when Mark J.F. Schroeder, who had been tenaciously serving as Comptroller since 2012, resigned to become head of New York’s motor vehicle department.  [Full disclosure: I supported Mark in his 2017 mayoral campaign against Byron Brown.  See https://withallduerespectblog.com/2017/09/08/why-im-voting-for-mark-schroeder-on-september-12th/.]

As a result of the opening, behind-the-scenes maneuvering is taking place.  In the words of  veteran Buffalo News political columnist Bob McCarthy, “Political intrigue is stalking City Hall this week… and angling is underway to fill the vacant comptroller’s office.”  Not surprisingly, Mayor Byron Brown and his Democratic allies are intent on assuring that Mark Schroeder’s successor will not be another thorn in the mayor’s side.  In an apparent step to ensure a harmonious and passive relationship between the next Comptroller and Mayor, local Democratic party leaders selected Erie County Legislator Barbara Miller-Williams as the party’s nominee to replace the vigilant Mark Schroeder.

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I am not professionally or personally familiar with Miller-Williams’ multi-faceted career, other than what I have read in newspapers and researched on-line.  According to her biography, prior to her position as a county legislator, she served on the city’s Common Council, and is both a retired Buffalo police officer and a retiree of the U.S. Army Reserve.  Ms. Miller-Williams holds both a B.S. degree in business administration, and Masters in Higher Education and Student Affairs Administration.  Notably, she is not a certified public accountant (although one need not be a CPA to meet the Charter’s qualification for the Comptroller position).

I am not questioning Miller-Williams’ integrity, or diminishing her many accomplishments.  However, while she promises an open and transparent relationship with the Brown administration, I have deep reservations regarding her independence and willingness to challenge either Byron Brown or her former Common Council colleagues.  Here’s why:

–  According to the Buffalo News, Barbara Miller-Williams “has reached a number of political milestones with [Mayor Byron] Brown’s help.”

– NYS Board of Elections records show that the Mayor’s “Brown for Buffalo” committee contributed nearly $2,000 to Miller-Williams’ county legislator campaign in 2011, and made additional contributions totaling $950 between 2013 and 2015.

– The Buffalo News also reports that Miller-Williams is “part of the Grassroots political club that has worked to elect dozens of politicians over the past three decades, including Mayor Byron W. Brown.”

– According to NYS Board of Elections records, “Brown for Buffalo” donated nearly $14, 000 to the Grassroots organization between 2013 and 2017.

City Hall under Mayor Brown’s leadership is a secretive and, at times, intimidating place.  It is understandable, when reviewing the following powers and duties the Charter vests in the City Comptroller, why Byron Brown and his allies on the Common Council would strongly prefer not to have an independent fiscal watchdog in their midst:

– The comptroller has unrestricted access to all employees, officials, offices, records, reports, files, and information and things of whatever nature as needed to carry out the comptroller’s duties, and possesses the power to investigate and to enforce by subpoena the attendance of witnesses or the production of document at such investigation.

– The comptroller has the power to conduct performance audits of all bureaus, offices, departments, boards, commissions, activities, functions, programs, agencies and other entities or services of the city to determine whether their activities and programs are: (i) conducted in compliance with applicable law and regulation; and (ii) conducted efficiently and effectively to accomplish their intended objectives.

– If the comptroller detects apparent violations of law or malfeasance or nonfeasance by an officer or employee, or information that indicates derelictions may be reasonably anticipated, the comptroller has the duty to report the irregularities to the council and the mayor, and, if the irregularity is potentially criminal in nature, to also notify the district attorney.

– The comptroller is obliged to submit to the common council, on or before the tenth day of May each year, a report assessing the accuracy of the revenue and expenditure estimates of the budget the mayor submits to the council.

– The comptroller has the authority to hire an independent consultant to conduct an audit of the performance of the common council staff every two years.

– The Charter provides the comptroller with the power to appoint, remove at his or her pleasure, and supervise the deputy comptroller, the city auditor, city accountant, and the investment and debt management officer.

– The comptroller has the duty to examine, audit and settle accounts of all officers, departments, boards commissions and other agencies of the city.

–  The comptroller also has the power to conduct financial and performance audits of all agencies and other entities a majority of whose members are appointed by city officials (most frequently, the Mayor) or that derive at least fifty percent of their revenue from the city.

[Note:  Additionally, pursuant to Section 34-a of the General Municipal Law of the State of New York, the Buffalo City Comptroller has the power to examine into the financial affairs of the Buffalo public school district and audit all school district accounts as the comptroller deems necessary.]

Clearly, given the breadth and depth of the City Comptroller’s authority and responsibilities, the position of Comptroller was created to provide Buffalo’s residents and taxpayers with an effective a fiscal watchdog at City Hall.  As expressed in a recent Buffalo News editorial, “Buffalo needs another fiscal watchdog who makes protecting the taxpayers a higher priority than keeping the political waters calm.”

The Common Council must vote no later than April 27 to appoint Mark Schroeder’s interim successor.  It may be tempting for councilmembers who are affiliated with Grassroots, or who have received substantial political contributions from “Brown for Buffalo” over the years – including Joe Golombek ($4,702.50), Joel Feroleto ($1,250), and Ulysees Wingo ($1,000) – to simply give their vote to Mayor Brown’s long-time ally, Ms. Miller-Williams.  But, we, Buffalo’s residents and taxpayers, must demand that each and every councilmember honestly and objectively give full consideration to all the candidates for the Comptroller vacancy, and, in the words of the Buffalo News editorial board, “[C]hoose a new comptroller who is independent enough to challenge the Brown administration on finances when it needs to be challenged.”

At last count, in addition to Miller-Williams, five individuals have submitted applications for appointment to the Comptroller’s seat:

* Vanessa A. Glushefski, who is a lawyer and the only CPA in the group.  Ms. Glushefski was appointed by Schroeder as Deputy Comptroller, and is currently serving as Acting Comptroller.

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* Common Council Member Richard A. Fontana, a seven-term representative of the City’s Lovejoy district.

* Patrick J. Curry, served seven years as Schroeder’s spokesperson and executive assistant.

* Jonathan D. Rivera, who works as an assistant to the commissioner of Erie County’s public works department.

* Scott J. Wilson, Jr., a college student who spent several years working in the Comptroller’s office in early 2018.

With All Due Respect,

Art Giacalone

P.S.  I believe that these are current email addresses for Common Council members:

dpridgen@city-buffalo.com; rfontana@city-buffalo.com; dfranczyk@city-buffalo.com; jgolombek@city-buffalo.com; cscanlon@city-buffalo.com; jferoleto@city-buffalo.com; darivera@city-buffalo.com; rwyatt@city-buffalo.com; uwingo@city-buffalo.com

Devolution by design – Elmwood’s tattered urban fabric

Posted by Arthur J. Giacalone on December 27, 2017
Posted in: Byron Brown, Chason Affinity, Elmwood Village, Green Code, Political Contributions, Uncategorized. 4 Comments

UPDATE Dec. 30, 2017:  When I originally posted this piece on 12/27, destruction of a dozen century-old buildings was still in progress at the southeast corner of Elmwood and Forest avenues.  Each structure that was being destroyed was a contributing resource to the nationally listed “Elmwood Historic District (East).”  [See SHPO’s 12-19-2016 letter]  Prior to Chason Affinity’s commencement of demolition activities, the Elmwood Historic District was “highly intact” and proudly represented the City of Buffalo’s turn-of-the-twentieth-century economic, social and architectural zenith.  I returned to the scene of destruction on December 29, and photographed the mud and mounds of rubble where two two-family residences had stood for a century on the south side of Forest Avenue between Elmwood and Granger Place.  I wanted to capture the image of “the last house standing” – the double owned by my friend and former client, Sandra Girage, who has courageously fought alongside her neighbors to preserve the character of the neighborhood she loves.  [I have added images of the Forest Ave. portion of Chason Affinity’s “devolution by design” at the end of this post.]  In my opinion – as the attorney who, until the latest judicial challenge, represented the opponents to the series of project’s proposed for the southeast corner of Elmwood & Forest – the multi-year legal, political, and judicial steps that have led to this inexcusable tattering of the Elmwood Village’s historic urban fabric epitomize the broken nature of Buffalo’s zoning, land use, and environmental processes.

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Exh 76 - Front yards 1095-1121 Elmwood

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THE LAST HOUSE STANDING ON THE FOREST AVE. BLOCK THAT WAS 100% RESIDENTIAL PRIOR TO CHASON AFFINITY:

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HERE’S WHAT’S COMING TO THE HISTORIC ELMWOOD VILLAGE:

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With All Due Respect,

Art Giacalone

 

 

Why I’m Voting for Mark Schroeder on September 12th

Posted by Arthur J. Giacalone on September 8, 2017
Posted in: Byron Brown, City of Buffalo, Mark Schroeder. Leave a comment

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UPDATE:  Incumbent Byron W. Brown won the September 12, 2017 Democratic mayoral primary, winning 51.7% (13,346 votes), to Betty Jean Grant’s 12.6% (3,267 votes), and Mark Schroeder’s 35.7% (9,219 votes).  Approximately one-quarter of the city’s registered Democrats cast ballots on a weather-perfect mid-September day.  Here’s how Buffalo News veteran political reporter, Bob McCarthy, characterized the results:  “Brown surpassed the magic 50 percent mark in the primary, an impressive feat against two well known opponents. But it still means he was supported by just over half of the city’s Democrats, and Schroeder beat poll predictions with 35 percent.”  [Also, see this article with neighborhood results.]  For the reasons I expressed in my initial post below, I am quite disappointed in the outcome.  But, I am inspired by the positive and issue-oriented campaign Mark ran, and greatly appreciative of the opportunity to meet and get to know the candidate and his bright and energized staff (in particular, Jenn Orr and Cherelle Syph).

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Members of the Buffalo News editorial board endorsed incumbent Byron W. Brown for mayor in the September 12th Democratic primary election, characterizing the choice as “an easy call.” Their decision was simple and effortless despite an acknowledgement that Mr. Brown’s main opposition, Mark Schroeder, has not only “shown himself as a valuable asset” as City Comptroller, but would make “a credible mayor.”

The Buffalo News justifies its decision by claiming that “the case for change” has not been made. I emphatically disagree.

Had the region’s largest newspaper waited a week to announce its endorsement, and honestly assessed its September 6th article, “Byron Brown’s 12 years as mayor: By the numbers,” they would have seen how the incumbent’s record should give every Buffalonian reason to strongly consider a change at the top.

Likewise, had the editorial board re-read the paper’s July 24, 2016 editorial, “City comptroller is working to ensure public information gets to the public,” they would have recalled the stark contrast between and Mark Schroeder’s refreshing “commitment to open government that citizens of a democracy deserve,” and the Brown Administration’s consistent record of “hinder[ing] access to information.”

Here are the major reasons that I will vote on September 12th in the Democratic primary election to replace Byron Brown with Mark Schroeder for Mayor of the City of Buffalo:

HUMAN BEINGS, NOT BUILDINGS, DEFINE A CITY: Our current mayor has the audacity to tout “an economic development strategy” that he claims “stabilized and grew the economy.” He proudly takes credit for $6.1 billion in new economic activity. But, he refuses to shoulder any of the blame for the poverty that permeates much of the city. As reported in the September 6th Buffalo News article, during Byron Brown’s 12 years as mayor, the city’s overall poverty rate has increased from 26.9% to 33.0%, while Buffalo’s child poverty rate has mushroomed from an already-unacceptable 37.5% in 2005 to a reprehensible 53.9% in 2015 (the most recent year statistics are available). Buffalonians deserve so much better.

HOMICIDES AND FEAR OF VIOLENCE CONTINUE TO PLAGUE BUFFALO NEIGHBORHOODS. The Buffalo News would have city voters view the mayor’s “public safety” record as representing “a clear area of progress.” This sleight-of-hand is accomplished by focusing on the city’s 19.53 % decrease in “violent crime rate” per 100,000 between 2005 through 2015. Two factors greatly diminish the significance of this “progress.” First, as noted in the September 6th report, Buffalo’s overall rate remains significantly higher than the rates in Rochester and Syracuse. More importantly – and not reported in the Buffalo News article – the number of homicides on City of Buffalo streets has risen from 37 in 2008, to 42 in 2015, and 44 in 2016. And, the trend toward an annual increase in loss of life through homicides continues in 2017.

NOTE: As Mark Schroeder has emphasized during recent mayoral debates, Mayor Brown’s police department has an embarrassingly low rate of “clearing” – that is, resolving – homicide cases. According to City of Buffalo records, only 11 of the city’s 44 homicides in 2016 have been cleared – a dismal result reflecting, almost certainly, the low level of trust between the city’s law enforcement officials and the communities they serve. And the human costs to surviving family members – who are unable to find the comfort of “closure” – is immeasurable.

MAYOR BROWN’S “GREEN CODE” EMPOWERS DEVELOPERS AT THE EXPENSE OF RESIDENTS AND EXISTING NEIGHBORHOODS. Byron Brown misled city residents by promising a new zoning code that would protect the character of existing neighborhoods. What we got, however, was the “Uniform Development Ordinance” – informally known as the Green Code” – a set of rules and standards that make it easier for developers to build what they want, where they want. Adding insult to injury, Byron Brown has used his appointment and hiring authority the past 12 years to stack the Zoning Board of Appeals, City Planning Board, and, most importantly, city hall planning staff, with individuals who consistently view proposed projects from the perspective of developers, not residents.

MAYOR BROWN HAS DISREGARDED THE QUALITY OF LIFE OF FRUIT BELT AND ALLENTOWN RESIDENTS BY FAILING TO EFFECTIVELY ADDRESS GENTRIFICATION AND PARKING ISSUES. As mayor, Byron Brown is a member of the Board of Directors of the Buffalo Niagara Medical Campus (BNMC). Rather than using that position as a means of protecting the adjoining residential neighborhoods, he has ignored the recommendation in the BNMC “2010 Master Plan Update” that the City of Buffalo act as “lead agency” and prepare a “Generic Environmental Impact Statement” to guide BNMC’s future development and reduce adverse impacts on the surrounding communities. As usual, big, new buildings, not human beings, were Mr. Brown’s first priority.

MAYOR BROWN’S APPOINTEES HAVE RENDERED SEQRA – THE STATE ENVIRONMENTAL QUALITY REVIEW ACT – TOOTHLESS AND VIRTUALLY MEANINGLESS. SEQRA is a state law intended to empower government decision-makers and the public by providing objective information and data whenever a proposed development project or policy might have a significant adverse impact on any one or more aspect of the environment. During the past two years, Mayor Brown’s staff has only recommended preparation of an Environmental Impact Statement – “the heart of SEQRA” – once. And, disturbingly, the environmental assessments are performed – not by the Common Council, Zoning Board of Appeals, or City Planning Board – but by the Mayor’s planning staff, virtually guaranteeing a pro-development disregard of impacts on natural resources, the character of existing neighborhoods, traffic, etc.

MARK SCHROEDER IS A MAN OF INTEGRITY AND COMPASSION. I had not met Mark Schroeder until I struck up a conversation with him at a rally-for-science several months ago. Since then, I have attended a number of debates and community meetings and observed him answering questions and explaining his concerns and plans. Each time, I have been impressed by his candor, humility, compassion for Buffalo’s residents and neighborhoods, his goals, genuineness, sense of humor, and decency. I can understand why the pro-Byron-Brown Buffalo News described Mark Schroeder in July 2016 as “among Western New York’s most consistently valuable public officials since he first became an Erie County legislator in 2002.”

I am convinced that Mark Schroeder is the kind of compassionate and forward-looking public official that the residents of the City of Buffalo – the entire City of Buffalo – deserve.

If you would like to learn more about Mark Schroeder’s plans for the City of Buffalo – or, perhaps, volunteer to help him unseat Mr. Brown – here are links to his website: https://www.markforbuffalo.com/, and his campaign’s Facebook page: https://www.facebook.com/markforbuffalo/.

With All Due Respect,

Art Giacalone

Is Buffalo’s Green Code dead?

Posted by Arthur J. Giacalone on August 25, 2017
Posted in: Buffalo Law Journal Columns by AJG, Byron Brown, Green Code. Leave a comment

The August 21, 2017 print version of the Buffalo Law Journal published my column – titled “Is Buffalo’s Green Code dead?” – which replies to Assemblyperson Sean Ryan’s tweet, following the July 19 approval of a fistful of variances for Chason Affinity’s “1111 Elmwood” project, proclaiming, “That’s it for the Buffalo Green Code…”

Here’s my basic premise:  What died when the ZBA approved the Chason Affinity project is the optimistic-but-misguided belief that the Green Code would provide residents with a meaningful tool to protect and enhance the quality of life and historic fabric of Buffalo’s neighborhoods. What remains intact and thriving is the true intent of the authors of the UDO: implementation of a land use law that, in the words of a City Hall press release, “promotes investment” by offering developers “predictable administration and by-right development.”

The column is available on-line at the BLJ website.

With All Due Respect,

Art Giacalone

Poor planning produces predictable parking problems

Posted by Arthur J. Giacalone on August 8, 2017
Posted in: B-N Medical Campus, Buffalo Law Journal Columns by AJG, Buffalo News, Byron Brown, City of Buffalo, Development, Fruit Belt. Leave a comment

The August 7, 2017 print version of the Buffalo Law Journal published my column – titled “Poor planning produces predictable parking problems” – in which I opine regarding the ways the Buffalo Niagara Medical Campus [BNMC] board of directors, the City of Buffalo, and New York State have failed the Allentown and Fruit Belt neighborhoods by not effectively addressing beforehand foreseeable parking headaches resulting from the growth of the medical campus.

The column is available on-line at the BLJ website.

Here are links to various newspaper articles and documents referred to in the Buffalo Law Journal piece:

– A July 26, 2017 Buffalo News editorial entitled “Medical Campus parking squeeze must be dealt with.”

– An April 7, 2017 Buffalo News editorial entitled “Forward-looking Medical Campus is working on parking crunch.”

– BNMC’s “2010 Master Plan Update.”

– Buffalo News articles from May 16, 2016, June 17, 2016, and March 15, 2017.

– “Quick Facts” regarding the new SUNY at Buffalo medical school complex.

Note: After reading the BLJ column, you might agree with the conclusion that I have reached: Given his role as both the Mayor of the City of Buffalo and member of the Board of Directors of the Buffalo Niagara Medical Campus, Inc., the following statement by Byron Brown rings awfully hollow: “I made Fruit Belt parking my top legislative priority.”

With All Due Respect,

Art Giacalone

Why won’t Buffalo City Hall enforce the Green Code?

Posted by Arthur J. Giacalone on June 7, 2017
Posted in: Byron Brown, Chason Affinity, City of Buffalo, Development, Elmwood Village, Green Code. Leave a comment

[A version of this post was published by The Public on June 14, 2017 under the headline, “Elmwood-Forest and the Green Code.”  You can read it here.]

The City of Buffalo’s long-touted new zoning law – the Uniform Development Ordinance (UDO) or “Green Code” – has been in effect citywide for two months. Is that too short a time period for members of Mayor Byron Brown’s planning staff to familiarize itself with its provisions and apply its requirements to Chason Affinity’s proposed “1111 Elmwood” project at the southeast corner of Elmwood and Forest avenues?

Or, are we just seeing more of the same from the ninth floor of City Hall? That is, are the staff members of the Mayor’s Office of Strategic Planning (headed by Executive Director Brendan Mehaffy), and the city’s Division of Planning (under the leadership of Nadine Marrero) being willfully indifferent or blind to zoning, planning and environmental requirements that might slow down or derail a proposed development project?

I’m not in a position to know with certainty whether it is ignorance, indifference, incompetence, or some unidentified reason. What I do know is that Chason Affinity’s project is not being held to the requirements of either the former zoning ordinance or newly-enacted Green Code/UDO. While an excellent report by WBFO’s Chris Caya diplomatically includes a question mark in its headline – Does proposed Elmwood Village project violate the Green Code? – the answer, in my opinion, is a clear and unequivocal YES!

Please note, I am not saying – as many well-intentioned individuals have argued – that Chason Affinity should be prohibited from proposing a project that requires “variances” from the specific requirements of the zoning ordinance. Both New York State law and the Green Code/UDO mandate that a property owner or project sponsor have access to the variance process – that is, the ability to apply to the city’s Zoning Board of Appeals [ZBA] in an attempt to demonstrate at a public hearing that he/she should be relieved of a particular requirement in the zoning code.

I’m saying that there are provisions of the Green Code/UDO that Chason Affinity’s proposed project violates, and that the city’s planning staff are, intentionally or otherwise, disregarding those requirements and allowing the application process to proceed without addressing that non-compliance.

If you are interested in the details, please read the letter that I sent on June 5, 2017 to James Comerford, Jr., Commissioner of the City’s Department of Permit & Inspection Services [who is empowered under the Green Code/UDO to provide “written interpretations” of the UDO provisions], and Ms. Marrero [who, as “Zoning Administrator,” is the person who makes a “determination of completeness” when a project sponsor applies for a discretionary approval under the UDO from the Common Council, City Planning Board, or Zoning Board of Appeals (ZBA)].  Here’s a link to that correspondence: Letter to Comerford-Marrero re 1111 Elmwood 06-05-17

And here is a quick summary of the primary areas of non-compliance that I believe the Mayor’s planning staff has so far ignored:

Issue No. 1 – Combination of lots

The Green Code/UDO’s “Elmwood Village Standards” include the following provision: “No more than two lots in the Elmwood Village, existing at the time of the adoption of this Ordinance, may be combined for the purposes of new construction in an N-2C or N-2E zone.” Chason Affinity’s Elmwood Ave. property is located in an N-2C zoning district, and consists of 10 lots, extending 321.5 feet.

Chason Affinity claims that it combined these lots in 2016, but has not provided any public support for that assertion. There was only one lawful way in 2016 for the project sponsor to consolidate its lots: obtain approval of such consolidation from the City Planning Board after a public hearing. Zoning Administrator Marrero has stated in a recent email that consolidation of the Chason Affinity parcels was not completed through the Planning Department, but, apparently, through “Assessments.”

Despite the apparent failure of Chason Affinity to lawfully combine “more than two lots”, Ms. Marrero has allowed the proposed 1111 Elmwood project to proceed before the Planning Board and – as currently scheduled – the ZBA on June 21, without addressing this significant issue. While Chason Affinity’s 10-lot combination extends over 320’ on Elmwood Avenue, the two-lot limitation would restrict the Elmwood Ave. frontage – and, the length of the building – to less than 82 feet – and would eliminate the need to demolish 8 of the ten of the existing century-old buildings.

Exh 76 - Front yards 1095-1121 Elmwood

Issue No. 2 – Chason Affinity’s hybrid “Commercial Block”/“Stacked Units” building

The Green Code/UDO is clear. A project sponsor must “select” which allowed building type it proposes to construct, and then comply with the standards for that building type. This form-based approach to zoning was an integral feature of the new zoning code. But Chason Affinity has failed to comply with this requirement, and is attempting to have its building treated as both a Commercial Block building where convenient, and Stacked Units building where a Commercial Block building is inappropriate.

The most disturbing aspect of this issue is that the Zoning Administrator and City Planning Board are allowing the project sponsor to get away with this flagrant disregard of this basic Green Code/UDO requirement.

Issue No. 3 – Conflicts with “Commercial Building” and “Stacked Units” requirements

Whether or not the intention of the Green Code/UDO is to permit a “hybrid” building, the residential-only portions of the proposed monolith – the southern portion of the Elmwood Ave. frontage, and the portion of the building located at 605 and 607 Forest Ave. – violate a number of the requirements for a “Commercial Block” building and “Stacked Unit” buildings.

City Hall has treated the Chason Affinity application as “complete” without requiring the project sponsor to apply for additional variances despite the following examples of non-compliance with Green Code/UDO requirements:

(a) The residential-only portion of the building located at 605-607 Forest Ave. violates the following “Stacked Units” requirements: (i) there appears to be no “shared entry”;  (ii) it lacks a second side yard (which would make it a free-standing structure); and (iii) it appears to lack the required rear yard.

BGC Stacked Units dark0001

(b) If the “condominium portion” of the building on Elmwood Avenue is a Commercial Block building, as claimed by Chason Affinity, it currently violates the “Commercial Block” requirement that the ground floor consist of “retail or service uses.”

(c) If, in fact, the “condominium portion” of the building on Elmwood Avenue is meant to be a “Stacked Units” building, it violates the Green Code/UDO’s exclusion of “Stacked Units” in the N-2C District. It also lacks the required “shared entry” and second side yard.

Please contact City of Buffalo officials and demand compliance with the Green Code/UDO

Zoning, planning, and environmental laws are meant to be applied as written, not as a project sponsor or Mayor Brown’s Administration wants to interpret it to expedite or ease a project’s construction.  If you agree with this sentiment – whether or not you support or oppose Chason Affinity’s project – please contact the following officials by phone, email, letter, or in person, to demand that the law be objectively and fully applied:

Mayor Byron Brown: bbrown@city-buffalo.com; 716-851-4841

Brendan Mehaffy, Executive Director of Office of Strategic Planning [and, Nadine Marrero’s boss]: bmehaffy@city-buffalo.com;  716-851-4769

Nadine Marrero, Director of Planning/Zoning Administrator: nmarrero@city-buffalo.com; 716-851-0172

James Comerford, Jr., Commissioner of City’s Department of Permit & Inspection Services: jcomerford@city-buffalo.com; 716-851-4972

Timothy Ball, Esq., Corporation Counsel: tball@city-buffalo.com;  716-851-4343

Joel Feroleto, Esq., Delaware District Councilmember: jferoleto@city-buffalo.com; 716-698-1207.

Thank you for your advocacy!

With all due respect,

Art Giacalone

Buffalo’s Green Code: Historic Revision or Hype?

Posted by Arthur J. Giacalone on May 18, 2017
Posted in: Buffalo Law Journal Columns by AJG, Byron Brown, Green Code, Uncategorized. Leave a comment

The May 15, 2017 edition of the Buffalo Law Journal published my column – titled “Buffalo’s Green Code: Historic Revision or Hype?” – where I compare promises made by Mayor Byron Brown’s administration and the actual ordinance that went into effect citywide on April 3, 2017.

The column is available to the public on-line at the BLJ website.

I hope you’ll enjoy the piece.

With All Due Respect,

Art Giacalone

Derail Buffalo Train Station Decision until Environmental Review Performed

Posted by Arthur J. Giacalone on April 18, 2017
Posted in: Andrew Cuomo, Byron Brown, City of Buffalo, Development, SEQRA. Leave a comment

Unlike many Buffalonians, I have yet to make up my mind where Buffalo’s new train station should be located. [Frankly, I still haven’t concluded that we “need” to replace the admittedly sad Amtrak Station now servicing our “city of no illusions.”] But I am certain of one thing: A decision as momentous, and with such multi-generational implications as the site of the region’s new train complex, should be preceded by a careful assessment and comparison of the potential adverse environmental impacts of the various sites under consideration.

New York State has a law – SEQRA, the State Environmental Quality Review Act – that requires our local and state officials and agencies to give serious consideration to environmental factors when engaging in “planning and policy-making activities that may affect the environment and commit the agency to a definite course of future decisions.” [See 6 NYCRR 617.2(b)(2).] The environmental assessment envisioned by SEQRA is meant to occur “at the earliest possible time” in the planning process – when it is still practical to modify the decision in order to mitigate adverse environmental effects.

In my opinion, there is a strong legal argument that SEQRA’s mandated environmental review should be taking place now, before the preferred site is announced for a new train station. By doing the environmental assessment at this stage in the planning process, the government decision-makers and the public would have pertinent data and information to help guarantee an informed and balanced determination – one that would allow a meaningful comparison of the environmental, social and economic impacts of each location being considered.

Unfortunately, neither the Cuomo administration, nor the City of Buffalo, has exhibited a willingness to comply with the letter and spirit of SEQRA, especially when the goal is to “fast-track” the decision-making process. A meaningful examination of the likely adverse environment impacts that might result from selecting a particular site is not what is occurring.

[Note: The term “environment” is broadly defined by SEQRA: “Environment means the physical conditions that will be affected by a proposed action, including land, air, water, minerals, flora, fauna, noise, resources of agricultural, archeological, historic or aesthetic significance, existing patterns of population concentration, distribution or growth, existing community or neighborhood character, and human health. “ 6 NYCRR 617.2(l).]

Opinions being expressed by politicians, community leaders, preservationists, and ordinary citizens focus on a myriad of reasons for preferring one site over another. Residents of Buffalo’s East Side are hopeful that locating the Amtrak station at the long-idled Central Terminal would help to infuse private investment and new vitality to their neighborhood. A group of architects, struck by the scale and majesty of this “architectural icon,” also supports the Central Terminal as the site of a new train station. City of Buffalo Mayor Byron Brown appears to be stressing “price tag” as the most significant factor, which, controversially, would appear to favor a downtown location.

But no one seems to be concerned about the short-term and long-term impacts on the environment of constructing and operation a train station, much less as multi-modal facility.

CCI041817

The Buffalo News is pushing for a downtown location. Its April 13, 2017 editorial embraces “the likely immediate impact” of keeping the Amtrak station downtown, as opposed to what it views as the mere “prospects for future benefits” of the Central Terminal site. While I don’t understand such a shortsighted perspective, I am truly flabbergasted by the editorial board’s justification for building a new station at all: “… Simply because the state has made $25 million available to begin the work…”

That comment brings to mind the apparent reason Western New York’s media and politicians suddenly became obsessed with the need to decide now where to locate a new train station: Gov. Andrew Cuomo offered last October to pay one million dollars for a study if his “selection committee – headed by Mayor Byron Brown – could reach a determination on the preferred site within six months. To fan the fire a bit more, New York’s chief executive – sounding more each day like our nation’s 45th President – recently threatened to make Mayor Brown pay for the ongoing engineering study assessing the various locations if a choice isn’t announced by April 26.

This is not the way a rational community should be making important decisions.

I realize that Buffalo’s Mayor often feels obliged to do what Gov. Cuomo requests of him. But I would have hoped that Buffalo has at least one elected official capable of seeing the wisdom of making fully-informed and prudent decisions regarding such a major project. Not Congressman Brian Higgins, who provided the following statement last October: “Fast track the selection of a new site, its design, and construction,” Higgins said. “[It’s] a good thing for Western New York. There’s good reason to be optimistic.” Not State Senator Tim Kennedy, who exclaimed, “Governor Cuomo is supporting Congressman Higgins’ call and ensuring that the job gets done. A new station is needed, and we must move expeditiously to achieve that, wherever it may be located.”

It is inexcusable that the State of New York is expending one million dollars to the NYS Department of Transportation’s hand-picked engineering consultant firm, WSP Parsons Brinckerhoff – for a “Buffalo Train/Intermodal Station Location Study” that does not include the environmental review mandated by SEQRA. And, no one should be fooled into thinking that the engineering study requested by the Cuomo Administration is the equivalent of an “Environmental Impact Statement” prepared in compliance with SEQRA. Not one of the seven specific factors included in the report’s “Statement of Purpose & Needs” pertains directly or indirectly to protecting and preserving the environment. Similarly, the sixteen “Guiding Principles for the New Buffalo Station” are silent as to the need to limit adverse impacts to the environment.

Buffalonians must demand that the “fast-tracking” of a decision concerning a new train station be halted until a SEQRA “lead agency” is chosen, and an Environmental Impact Statement is prepared.

With All Due Respect,

Art Giacalone

 

SEQRA and Buffalo’s History of (Non)Compliance

Posted by Arthur J. Giacalone on March 4, 2016
Posted in: Byron Brown, City of Buffalo, Green Code. Leave a comment

I recently urged Buffalo residents to roll up their sleeves, and provide “substantive comments” to our Common Council members regarding the Green Code’s Draft Generic Environmental Impact Statement [DGEIS]. [See https://withallduerespectblog.com/2016/02/20/how-green-is-the-buffalo-green-code/.] But I realize how daunting a task that might be for anyone not fully familiar with SEQRA, its intended role, and the alphabet soup of phrases and legal terminology that surrounds the environmental review process. So this post will offer the public and our public officials some background information concerning SEQRA, as well as my perspective on the City of Buffalo’s history of (non)compliance with this important law.

DSCN5144

I.  State Environmental Review Act (SEQRA).

The Draft Generic Environmental Impact Statement [DGEIS] that was accepted by Buffalo’s Common Council in mid-February is an attempt by city officials to demonstrate compliance with the requirements of a state law enacted four decades ago, the State Environmental Quality Review Act, known commonly as SEQRA. [See ECL Article 8 SEQRA.] Hugh Carey, New York’s governor at that time, explained in his acceptance memorandum why the legislation was sorely needed:

… In recent years, it has become abundantly clear that state and local agencies have not given sufficient consideration to environmental factors when undertaking or approving various projects or activities… [Emphasis added.]

Gov. Carey also identified the goal of SEQRA: to create a mechanism to provide state and local agencies with objective information so they could “intelligently assess and weigh environmental factors” when deciding whether or not to approve new policies, laws and projects. SEQRA’s role was also described by our state’s highest court in a landmark 1986 court decision known as Jackson v. NYS Urban Dev. Corp.:

“… SEQRA makes environmental protection a concern of every agency. In proposing action, an agency must give consideration not only to social and economic factors, but also to protection and enhancement of the environment. SEQRA insures that agency decision-makers–enlightened by public comment where appropriate–will identify and focus attention on any environmental impact of proposed action, that they will balance those consequences against other relevant social and economic considerations, minimize adverse environmental effects to the maximum extent practicable, and then articulate the bases for their choices… factors when undertaking or approving various projects or activities…”  [Emphasis added.]

To assure protection and enhancement of the environment, SEQRA defines “environment” broadly to include not only the “physical conditions” that will be affected by a proposed action, such as land, air, water, minerals, flora, fauna, and agricultural and archeological resources, but also elements that are less tangible and may be considered socio-economic in nature, such as historic and aesthetic resources, existing patterns of population concentration, distribution or growth, existing community or neighborhood character, and human health. [See 6 NYCRR 617.22(l).] Notably, our state’s highest court held thirty years ago that an action’s potential impact on these socio-economic factors (which include the displacement of low-income residents through the process euphemistically known as “gentrification”) must be a matter of concern “with or without a separate impact on the physical environment.”   [See Chinese Staff and Workers Association v. City of New York, 68 NY2d 359, 365-366 (1986).]

DSCN4775

The “heart” of SEQRA is the “environmental impact statement” or “EIS.” It is a document – when properly prepared – that provides government agencies, project sponsors, and the public a means to systematically gather and consider significant adverse impacts on the environment, alternatives to the proposal under consideration, and mitigation measures to eliminate or substantially reduce unavoidable adverse impacts. As expressed by our state’s highest court in the Jackson decision, the EIS process is designed as “a cooperative venture” whereby both the public and public agencies are informed, and an agency has “the benefit of public comment” prior to approving an action.

To comply with SEQRA’s purpose, consideration of environmental factors must be incorporated into the planning, review, and decision-making processes of government agencies “at the earliest possible time.” [See 6 NYCRR 617.1(c).] Although SEQRA does not state the precise time a DEIS must be prepared, the document is to be presented to the public “at a point ‘where genuine flexibility remains before bureaucratic momentum strips [it] of any real influence on decision-making.’” [See Sun Beach Real Estate Development Corp. v. Anderson, 98 AD2d 367 (2d Dept. 1983).

DSCN6742

II.  City of Buffalo and SEQRA (Non)Compliance.

I have closely observed the City of Buffalo’s efforts to comply with the requirements and intent of SEQRA for a quarter century, as a citizen, as a lawyer representing informal groups of residents, and, in the mid-1990s, as a member of the City of Buffalo’s Environmental Management Commission (BEMC). I will be gracious and refer to the city’s approach to its obligations under SEQRA as less-than-diligent. But one need not rely solely on my assessment.

In 1994, James A. Smith, as Executive Director of the City’s Office for the Environment, served as the liaison between the Department of Community Development and the BEMC. In that capacity, Mr. Smith prepared a document entitled 1994 State of the Environment Report for the City of Buffalo. Although known for his diplomatic choice of words and non-confrontational demeanor, Jim Smith’s 1994 report concludes that, “there are serious problems with the City’s compliance with SEQR,” and states:

“… Due to a lack of procedural guidelines, and in some cases lack of commitment, the City of Buffalo does not fully obey New York state law regarding mandated environmental review procedures…”

The Common Council did adopt environmental review procedures in 1997. But serious problems remain with Buffalo’s compliance with SEQRA. In my opinion, there continues to be a lack of commitment to the statute’s goal of assuring the timely and informed assessment and consideration of environmental factors. This indifference to SEQRA’s mandates has manifested itself in a variety of ways, including:

A.  The failure of the City to require a Draft EIS for politically popular and fast-tracked projects, despite the fact that the proposed actions far exceed SEQRA’s thresholds for preparing an environmental impact statement. (See, for example, ENB 10-30-13 re Uniland’s 250 Delaware Ave. and ENB 02-24-16 re NorthlandCorridor.)

250 Delware Ave rendering

B.  An agency with the principal authority to approve or deny a proposed action (most often, Buffalo’s Common Council) deferring to other city agencies to oversee the DEIS process, and, in doing so, insulating itself from directly assessing potential environmental problems. (See, for example, Price v. Common Council 01-22-04.)

C. Delay in issuing a Draft EIS until a time when genuine flexibility no longer exists.

From my perspective, the City’s disinterest in adhering to SEQRA’s letter and spirit has emanated from the Mayor’s office, spreading throughout City Hall. SEQRA appears to be viewed by the current Mayor – as well as his predecessors – as an obstacle to be circumvented, an impediment to developers doing precisely what they want when they want to do it, and an unwanted constraint on the unfettered discretion of government agencies and officials. Without commitment from the head of the executive branch, and a steadfast effort by the City’s law department to educate and train city decision-makers on their duties and powers under SEQRA, it is not surprising that members of the Common Council, City Planning Board, Zoning Board of Appeals, etc., often fail to fully comprehend their role and obligations under SEQRA. .

III. Green Code’s Draft Generic Environmental Impact Statement (DGEIS).

Buffalo’s Common Council – the city’s elected legislative body – has been designated “lead agency” for the proposed Green Code. It correctly holds that status because, as Buffalo’s legislative body, it alone has the authority to decide whether or not the new zoning and development ordinance will be enacted and become law. [See 6 NYCRR 617.2(u).] Under SEQRA, the “lead agency” is responsible for determining whether an Environmental Impact Statement (EIS) is required, and for preparing and filing the EIS.

Despite the fact that the Common Council holds the title of “lead agency” for the proposed Green Code, the Green Code is Mayor Byron Brown’s baby, and the actual task of writing this massive piece of legislation has been assumed by the Mayor’s Office of Strategic Planning (OSP). Given that fact, it was more important than ever to adhere to SEQRA’s mandate to prepare a Draft EIS “at the earliest possible time” and “at a point where genuine flexibility remains before bureaucratic momentum strips [it] of any real influence on decision-making.” Unfortunately, the exact opposite has occurred.

Nearly five-and-a-half years elapsed between the time the Green Code planning process officially began in September 2010, and the public’s first access in February 2016 to the DGEIS, the heart of SEQRA. Here’s a brief chronology of major Green Code and SEQRA-related events:

– September 2010: “Kick off” of the Land Use Plan project occurs.

– November 2010 – Summer 2011: Mayor’s OSP holds community meetings, workshops.

– October 2011: Mayor’s OSP releases the First Draft of Buffalo Green Code.

– April 2012: Mayor’s OSP releases “A New Zoning Direction for Buffalo – Technical Report,” and Mayor hosts a major forum entitled “Buffalo Green Code – A Form Based Unified Development Ordinance.”

– May 2012 – Mayor’s OSP takes first step to comply with SEQRA, filling out an informational form known as a Full Environmental Assessment Form (FEAF), and submitting it to the Common Council.

– July 2012: Common Council determines that the proposed Green Code may have a significant adverse impact on the environment and issues a “Positive Declaration” under SEQRA calling for a Draft Generic Environmental Impact Statement (DSGEIS); Mayor’s OSP prepares and releases a “Draft Scoping Document” to identify potentially adverse impacts that should be evaluated in the DGEIS.

– May 2014: Mayor’s OSP releases the second draft of the proposed Green Code for public review.

– October 2015: Mayor’s OSP releases the third draft of the proposed Green Code for public review.

– February 2016: On February 16, 2016, Common Council accepts as complete the Green Code DGEIS prepared by the Mayor’s OSP, and begins the public comment period (which ends April 22, 2016).  [Click here for the Green Code’s DGEIS.]

IV.  Flaws in the City’s Approach to the Green Code.

There are four basic flaws in the approach taken by the Mayor’s Office of Strategic Planning in enacting, in Mayor Brown’s words, “a historic revision of Buffalo’s land use and zoning policies”:

First, the decision to conduct the environmental review of four diverse projects, that is, Buffalo’s Land Use Plan and Unified Development Ordinance (“Green Code”), Local Waterfront Revitalization Program, Revised Urban Renewal Plans, and Brownfield Opportunity Areas, “as one package” greatly reduces the likelihood that any of the four sets of laws, policies and plans will be afforded the “hard look” mandated by SEQRA. The Mayor’s OSP further “softens” the assessment process by choosing to evaluate potential environmental problems through the gauzy lens of a generic draft environmental impact statement (GDEIS), rather than looking at site-specific impacts.

Second, contrary to SEQRA’s mandate that the environmental review process occur “at the earliest possible time” in the planning process, the City and its consultants have spent years developing their comprehensive proposals without the benefit of the DGEIS. In doing so, the City has made it much more unlikely that any of the proposals constituting Buffalo’s new land use and zoning policies will be significantly modified in response to any environmental problems discovered through the EIS process. Bureaucratic momentum in favor of the “preferred” proposals, as well as the non-environmental [that is, political] considerations that have contributed to the shape of the various projects, will almost certainly eliminate any genuine flexibility in the decision-making process. In other words, by delaying its SEQRA review, the City has stripped the environmental impact statement of any real influence on the decision-making process.

Third, the much-touted “public outreach” the City has engaged in concerning its proposed land use and zoning plans occurred pre-SEQRA when residents were not armed with the information needed to insure fully informed commentary. Although it has taken “the experts” five-and-a-half years to amass the numerous and lengthy documents comprising the DGEIS and its nine appendices, Buffalonians have until only April 22, 2016 to assess and comprehend this mountain of information – and figure out what important information and evaluation is missing from the DGEIS.

Fourth, following the DGEIS public comment period, it will be the Mayor’s OSP and consultants, not the Common Council, responding to the public’s comments, and making revisions, if any, to the Green Code documents. As stated at the Green Code’s website, “Once the revisions are complete, the Green Code documents and the Final GEIS will be presented to the Common Council for adoption.” This approach further insulates the Common Council from the planning and review process, jeopardizing compliance with the letter and spirit of SEQRA. According to SEQRA, the Green Code’s Final GEIS must include “the lead agency’s responses to all substantive comments,” and it is the lead agency that is “responsible for the adequacy and accuracy of the final EIS, regardless of who prepares it.” [See 6 NYCRR 617.9(b)(8).]

I guess we really do have to roll up our sleeves!

With All Due Respect,

Art Giacalone

Note:  My thanks to Jay Burney for arranging to have this posting re-published at The Public‘s inestimable GreenWatch column at http://www.dailypublic.com/articles/03062016/greenwatch-buffalo-greencode.