City of Buffalo

The Riverline Neighborhoods Await Transformation

Posted by Arthur J. Giacalone on June 12, 2021

Posted in: Brian Higgins, City of Buffalo, South Buffalo, WNY Photos. 2 Comments

U.S. Rep. Brian Higgins recently indicated that he would like to see “The Riverline” project receive $10.5 million from President Joe Biden’s proposed highway bill. Are you wondering that “The Riverline” is? The Western New York Land Conservancy – a not-for-profit land trust that is developing the project – describes The Riverline as a “a nature trail and greenway” that will transform the abandoned DL&W rail corridor and link downtown Buffalo to the Buffalo River.

The 1.5-mile greenway will traverse three working class Buffalo neighborhoods, Perry, The Old First Ward, and The Valley. While they have experienced economic and social stress for decades, the Land Conservancy envisions The Riverline assisting these neighborhoods build “a shared future of equity, opportunity, and prosperity.”

(WNYLC)

You can learn much about The Riverline concept – “a vision created by the community” – by visiting the Land Conservancy’s website and immersing yourself in the project’s design drafts. The renderings are detailed, informative, and intriguing. You’ll discover that the linear trail will have gateway entries, bridges, and two miles of paths. Conceived primarily as a refuge – with nature trails and wildlife views – The Riverline will include an abundance of gardens (of both the neighborhood and butterfly variety), as well as passive recreation areas.

But the zoning-law-attorney in me needed to experience something beyond concept drawings. I’ve learned from decades of assisting residents in communities throughout Western New York that nothing beats a “site visit” if I want to truly begin to understand a neighborhood and imagine the impact of a proposed project (even if the site visit is a mile-and-a-half long).

So, despite the daunting heat predicted for later that day, I spent 2 or 3 hours on June 7th walking the neighborhoods that will be touched by The Riverline, taking photos, and making mental connections between the colorful concept drawings and the real world. The images that follow will be “organized” into three groupings, reflecting the Riverline’s three sections, The Del, The Juncture, and The Basswoods.

THE DEL

The Riverline begins at the corner of Moore and Miami streets, and proceeds in a southeasterly direction, initially on the north side of Miami Street, then on Miami’s south side, with an elevated berm eventually dropping to street level at Louisiana, Alabama, and Hamburg streets. Here’s the view looking east down Miami St. from Moore St.:

Just steps away, at Ohio St. and Moore, you’ll find the Buffalo River Fest Park:

And, as you peer down Miami St. from Moore, this is what is right behind you:

As you head easterly down Miami St. towards Chicago St., The Riverline will be on your left:

And here’s the scene on your right:

This is the view looking westerly back down Miami once you’ve reached Chicago St.:

Awaiting you at the northeast corner of Miami and Chicago is an abandoned brick building:

But there’s a pleasant surprise as you peak around the corner of that tired brick structure:

Here are views heading east down Miami from Chicago:

The next cross street is Louisiana:

The Riverline path switches to the south side of Miami as you proceed easterly from Louisiana St.:

But the north side of Miami St. is totally different, and makes you aware of the proximity of the future nature trail to this mixed industrial and residential neighborhood:

This is the view of the Riverline directly across Miami St. from these houses:

You soon come to Alabama St.:

This is a picture of the residential block looking north down Alabama from Miami St. heading towards South Park Avenue:

At the end of that block, you’ll find a struggling South Park commercial area, and a reminder of where you are:

Back to Alabama and Miami, this is what you’ll encounter as you look southeast across Alabama just south of Miami St.:

Then there’s Mackinaw St.:

And a lovely single-family home at 169 Alabama St., looking proud a half-block beyond Mackinaw:

As you proceed southerly down Alabama, you’ll find a neighborhood stalwart, Our Lady of Perpetual Help R.C. Church:

You’ve reached the end of “The Del” community as you walk easterly down Mackinaw or Miami to Hamburg St.

THE JUNCTURE

I have a bit of a confession to make here (and, I won’t blame it on the heat). After I crossed Hamburg Street on my self-guided tour, I made the mistake of criss-crossing the various streets – Sidway, Mackinaw, Katherine, Fitzgerald, and O’Connell – without taking notes of precisely where I was as I took each photo. So, I’m not 100% certain of either the street or direction I was looking (or, both) while capturing some of the images that follow. My apologies. But, at least, now I have an excellent reason to re-visit “the site” in the near future.

By the way, the moniker given to this section of The Riverline, The Juncture, reflects a prominent feature of the neighbor, its proximity to the intersection of two active railroad tracks. The photos of tracks inserted below were taken from a point just beyond the dead end of Mackinaw St. east of Fitzgerald. The Riverline will include an impressive trestle bridge providing its users with panoramic views of the railroad looking to the north and south.

Back to the site visit.

These are images looking easterly down Mackinaw from Katherine Street.

These are the last homes on Mackinaw as you approach the Dead End sign and RR tracks:

My first glimpse of the tracks:

I’d call this the juncture, or junction, or, perhaps, intersection:

And, here’s the view from ground level as I turned around:

If I’m reading the design drafts correctly, The Riverline will be traversing the existing neighborhood through what are now mostly mowed fields, and lastly a mature stand of trees southeast of the corner of Fitzgerald and O’Connell streets. The trestle bridge will then take nature lovers across the railroad tracks and continue southeasterly.

These are O’Connell St. homes near Fitzgerald (if my memory serves me):

Now it’s time to leave The Juncture and head by car down South Park to the intersection of Smith and South Park (just before the road goes over a bridge and past the Tesla complex). Our destination: the third and final section of The Riverline called The Basswoods.

THE BASSWOODS

I still have much to learn about both The Riverline’s vision and the existing terrain. I found the following excerpt from Buffalo News reporter Mark Sommer’s April 28, 2021 article to be quite helpful:

“… [The Riverline] disappears east of Katherine Street [Mark’s referring to the trestle bridge] before picking up again adjacent to Red Jacket Riverfront Park. From there, the trail would cross one of Buffalo’s busiest railroad lines over an existing bridge south and east of Smith Street and end at a half-bridge over the Buffalo River with views of the South Park Avenue lift bridge, the Buffalo Color peninsula and the Tesla plant.”

My photos pick up at South Park Ave. and Smith Street, heading down Smith in the direction of railroad tracks and two “art walls”:

I came upon a pleasant surprise when I reached the end of the “art wall.” As I looked north and west – in the direction I picture The Riverline’s trestle bridge would be gracing the terrain someday soon – I not only found a helpful sign, but also an Erie County field office/bus attending a herd of hungry goats (“Goats at Work”) energetically removing invasive plants in advance of The Riverline’s arrival, and then, down a picturesque path, basswood trees (I presume):

When I returned to Smith Street, I momentarily admired the other “art wall” bookending the road, and walked southeasterly for the final segment of my site visit:

That’s my last photo for now. But, I know that I did not reach the end of The Riverline, and look forward to future exploring. Meanwhile, you may want to click on the link above to Mark Sommer’s April 28th report. It includes a photo of a plank bridge, by Sharon Cantillon, with the following caption: “Buffalo’s Riverline park is expected to end at this bridge, overlooking the Buffalo River and the Tesla plant.”

I hope this posting has whet your appetite to learn more about The Riverline and the many other endeavors happening in Buffalo to protect, preserve, and enhance our natural and built resources.

With All Due Respect,

Art Giacalone

BOPC responds – and I reply – to Caz Park pathway concerns

Posted by Arthur J. Giacalone on June 3, 2021

Posted in: Cazenovia Park, Christopher Scanlon, City of Buffalo, Olmsted Parks, South Buffalo. Leave a comment

On June 1, I wrote here about my concerns regarding plans to remove about 700 feet of asphalt pathway in Cazenovia Park – alongside and providing views of the Cazenovia Creek. On June 2, Stephanie Crockatt, Executive Director of the Buffalo Olmsted Parks Conservancy, replied by email to many of the issues that I raised concerning plans to remove the asphalt pathway and concrete steps at Cazenovia Park. Ms. Crockatt’s correspondence confirms BOPC’s plan to, in fact, eliminate that portion of the upper pathway starting at Warren Spahn Way. I share her correspondence below, and provide my initial response to her comments in brackets and bold print. Also, I am attaching a pdf containing a slide presentation, provided to me on June 3 by BOPC’s Director of Planning and Advocacy, Brian Dold, reflecting Caz Park history and BOPC’s current proposal for pathway reconstruction, etc. Caz Park – June 2021 slide presentation

*****************

From: “Stephanie Crockatt”
To: AJGiacalone@twc.com
Cc: “Andy Rabb”, “Greg Robinson”, “Councilmember Scanlon – South”
Sent: Wednesday June 2 2021 4:33:51PM
Subject: Cazenovia Paths/Stairs

Mr. Giacalone and Ms. ______________,

The Conservancy appreciates your outreach on the topic of the pathway reconstruction along the southern edge of Cazenovia Creek.

As you may know, these paths have been in rough condition for years, with numerous complaints from the community. Thankfully in working with the City and funding allocations, we were able to partner on a restoration project.

[AJG: Every person with whom I have spoken in Caz Park since May 27 is pleased to hear that the bumpy and uneven condition of the asphalt pathway, primarily found between Cazenovia St. and the northern set of concrete steps, will be removed and replaced. However, not one of the two or three dozen park-goers was aware of the plan to remove a 700-foot portion of the asphalt pathway that provides proximity and views of the creek.]

The project stems from our master plan’s five-year priority project update. You may recall the Conservancy held several public input sessions throughout 2018 and into 2019 in working to determine projects the communities around the Olmsted parks would like to see elevated in attention and improvement. Number 4 for Cazenovia Park is the pathways.

[AJG: I was in attendance at the Cazenovia Park public sessions in 2018-2019. Not once did I hear anyone from BOPC state or suggest that pathway attention and improvements would involve removal of approximately one-third of the existing asphalt pathway along the creek’s shore. The fact that South District Councilmember Christopher Scanlon – for whom pathway improvements is a very high priority – did not know on May 27 that any of the asphalt pathway would be removed and replaced by lawn reflects a failure by BOPC to keep our elected representative, much less the users of Caz Park, adequately informed.]

Yes, in this project there are areas where the path will be relocated to the correct historical alignment. This is due to the fact that the current high pathway (and the staircases) were part of a DPW project – maybe 30 or 40 years ago – which tried to address the flooding, ice damming and other creek impacts on the park.

[AJG: The original plans for Cazenovia Park included a 20-acre recreational lake as its centerpiece, separated into two sections by a carriage bridge and featuring two islands. As existing signage in the park describes, the original plan “allowed park-goers more access to the water than in other, larger parks.” Later changes in the park altered “the once pastoral landscape” by introducing an ice-skating rink, community center, and an indoor swimming pool, etc. The pursuit of “historic integrity,” by removal of a popular section of pathway that provides proximity and views of the creek not available from the “historic parallel route,” appears to be little more than a fanciful conceit attainable only at the expense of current park-goers (who now have the option of experiencing the contrasting ambience of either the high or low road).]

The high berm constructed along the southern shore was not part of the Olmsted alignment or topography, and some of those higher paths have actually become a safety hazard. The odd staircases are not historic and are not something the Conservancy would advocate to keep or even ask the City to continue for deferred maintenance expenses.

[AJG: The reality is that the high berm is not being eliminated and is, most likely, a permanent feature in the park and obstacle to any meaningful replication of the Olmsted alignment or topography. The berm, along with the concrete steps, are a testament to the unrealistic nature of the original Olmstedian plans. The “odd staircases” (which I believe have been there for more than a half-century) provide an excellent opportunity for educating the public about both the history of Caz Park and the difficulties of creating a park adjacent to a mighty creek. Olmstedians should embrace such an educational effort.]

The process the Conservancy follows in such planning and design decisions is to first vet with the public, which we did in 2018-2019. We then work with City parks and engineering on historic realignments, repairs or renovations in mapping out the project. We pass the designs through our Design Review Committee with the Conservancy which is a group of community volunteers and professionals. We then take final designs through to the Preservation Board for their approval, which also has a public input component.

[AJG: No matter BOPC’s intent, the vetting process as a means to educate and obtain the consensus of the public was extremely flawed. The Preservation Board process added to the misinformation. Not only was the subject line for the May 27 meeting devoid of any reference to removal-without-replacement of a significant section of asphalt pathway (“Reconstruct and realign asphalt pathways and remove concrete steps”), the publicly available documents lacked a narrative, and failed to include informative images of the actual plans.]

It is unfortunate that the project is causing you concern, but I can assure you that we take every project seriously in it’s historical context and integrity, public safety aspects, and sustainability as to further investment and/or anticipated aging and repairs.

[AJG: BOPC can demonstrate its commitment by: (a) asking the City to discontinue implementation of any aspect of the project other than removal and replacement of the asphalt pathway between Cazenovia Street and the northern concrete steps; and (b) conducting a well-advertised public forum at the Caz Park community center to allow the users of Caz Park the opportunity to learn about the final designs, and to express their preferences regarding the portion of the asphalt pathway commencing at Warren Spahn Way, and the other features of the proposed project.]

If you would like to speak with me directly or perhaps even meet out on site with our staff landscape architect, Greg Robinson, let me know.

[AJG: I would appreciate the opportunity to meet on site with you, Greg Robinson, and perhaps BOPC’s Brian Dold, as well as Councilmember Chris Scanlon. Thank you.]

Best,

Stephanie

Stephanie Crockatt

Executive Director, Buffalo Olmsted Parks Conservancy

716-838-1249×16 Office / http://www.bfloparks.org

With all due respect,

Art Giacalone

Caz Park pathway inexplicably slated for removal

Posted by Arthur J. Giacalone on June 1, 2021

Posted in: Cazenovia Park, Christopher Scanlon, City of Buffalo, Olmsted Parks, South Buffalo. Leave a comment

[For an update of this posting, please see https://withallduerespectblog.com/2021/06/03/bopc-responds-and-i-reply-to-caz-park-pathway-concerns/ .]

[A version of the following post was published as a letter-to-the-editor in the Buffalo News “Everybody Column” on June 5, 2021.]

Cazenovia Creek is the heart of Cazenovia Park, providing a feature missing from the other gems in the Queen City’s Olmsted Park system’s crown.

Despite the creek’s unique role, the public will soon lose the ability to safely and conveniently walk, run, or bike along a substantial portion of the Caz Creek shoreline if plans approved by Buffalo’s Preservation Board on May 27 are implemented.

IMG_8316 (2) [Detail from city’s engineering plans showing the section where asphalt will be replaced by lawn.]

Parkgoers are currently able to traverse an asphalt pathway that starts at Warren Spahn Way (across from a public parking lot) and hugs the creek for about 2,080 feet, the length of just over 5 football fields.

[Beginning of asphalt pathway, across from Warren Spahn Way parking lot, slated for removal.]

The bumpiest section of the pathway – closest to Cazenovia Street – will be removed and replaced with a new asphalt path, a worthy improvement.

Unfortunately, about 700 feet of the path, the section that starts at the bridge near the public parking lot and extends to the northern set of concrete steps, will be removed and not replaced with a new pathway, but filled with topsoil, seeded, and turned into lawn.

[Part of 700-foot pathway slated for removal, replaced with lawn.]

[Section of asphalt path extending between two sets of concrete steps, slated for removal without replacement.]

[View of creek from pathway section that will not be replaced.]

The public was unaware of this disturbing aspect of the plan. The official description of the proposal merely states, “Reconstruct and realign asphalt pathways and remove concrete steps.” The documents available to the public (and, apparently, the Preservation Board), included no narrative, and no discussion of the reasons a 700-foot long portion of the asphalt pavement would not be replaced.

[Northern set of concrete steps slated for removal and replacement with lawn.]

Even the South District Councilmember, Chris Scanlon, did not know the specifics of the proposed project. An hour before the Preservation Board’s vote to approve the plans, my Councilmember emailed me that, “the pathways along the creek are not being removed, they are being replaced.” Mr, Scanlon was incorrect, despite proclaiming that replacing the deteriorated paths “has been a major priority of mine.”

[View of creek through portion of path slated to be removed and not replaced.]

It is bad enough that no public explanation has been given for removal of the iconic concrete steps – a physical reminder of Cazenovia Park’s history.

[Southern concrete steps, slated for removal and replacement by lawn.]

[Northern concrete steps, slated for removal and replacement by lawn.]

There is no excuse for limiting the public’s ability to walk, run and bike along the creek without providing a meaningful explanation for diminishing that option.

IMG_8322 (2)_LI [An activity that will be impossible to enjoy if plans to remove the asphalt pathway and replace it with grass is implemented.]

If implemented, the approved plan, apparently proposed by the Buffalo Olmsted Park Conservancy and endorsed by the South District Councilmember, will eliminate the existing choice offered to Cazenovia Park users: to take the high road or low road.

[If implemented, removal of the path alongside Cazenovia Creek will force walkers, runners, and bicyclists to all use the path on the left in this photo, unable to see the creek.]

For the sake of transparency and fairness, Buffalo Olmsted Park Conservancy and city officials owe it to the public to reconsider this plan, with input from a fully-informed public.

If you agree, you can express your views to the following individuals:

Christopher P. Scanlon, South District Council Member at: 65 Niagara St., Room 1401, Buffalo, NY 14202; cscanlon@city-buffalo.com; 716-851-5169.

Stephanie Crockatt, BOPC Executive Director at: 84 Parkside Ave., Buffalo, NY 14214; 716-838-1249; www.bfloparks.org.

Andrew R. Rabb, Dep. Commr. For Parks & Recreation at: arabb@city-buffalo.com; 716-851-5553.

Thank you.

With All Due Respect,

Art Giacalone

Framed by Buffalo’s Iconic Skyway

Posted by Arthur J. Giacalone on May 23, 2021

Posted in: City of Buffalo, South Buffalo, Waterfront, WNY Photos. Leave a comment

Photos taken May 18, 2021.

IMG_8129 (2)

IMG_8126 (3)

IMG_8127 (2)

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With All Due Respect,

Art Giacalone

Due Respect for Otetiani a/k/a Red Jacket

Posted by Arthur J. Giacalone on May 19, 2021

Posted in: City of Buffalo, Native American, South Buffalo. 1 Comment

The land on which my home was constructed in 1910, on Oschawa Avenue off Indian Church Road at the southeastern edge of the City of Buffalo, is historically part of the Seneca Nation’s Buffalo Creek reservation. My parcel is just a few hundred feet southeast of ancient burial grounds near what is now the corner of Buffum (formerly, Buffam) Street and Fields Avenue. A 1.6-acre portion of the burial site is now called Seneca Indian Park by the City of Buffalo, and was designated a local landmark in 2011 by the City Common Council.

Saturday Morning Shadows at Seneca Indian Park 04-24-21

A primary reason for the landmark designation is the site’s affiliation with a Seneca named Otetiani (“Always Ready,” or more commonly known as Red Jacket). Here is an excerpt from the Seneca Indian Park landmark submission papers to justify the creation of the landmark:

Red Jacket was among the most important and influential Seneca leaders of the late 1700s – early 1800s. The village at Buffam Street had two important foci: the prehistoric village site and Red Jacket’s cabin. He lived middle and later years of his life in this village, walking along Buffalo and Cazenovia Creeks, conducting business at the council house a short walk away, even receiving the occasional white visitor. Red Jacket was adamant that he never wanted to leave the village – not even upon his death. He was buried accordingly, beneath a large walnut tree at the West end of the current Seneca Indian Park. Red Jacket’s former burial site is thus far more significant because it is more closely associated with his life and final wishes – indeed his cultural beliefs – than his current resting place in Forest Lawn Cemetery or any other site in Western New York. Buffam Street is significant because it was Red Jacket’s chosen and original burial location. This simple choice articulates the site’s significance even though Red Jacket’s body is no longer buried there. Red Jacket is a person of outstanding importance in Seneca history, the most ardent and recognizable protector of Seneca culture during his lifetime… [Emphasis added.]

Red Jacket's House

Buffum Street grave sites

Forest Lawn - Red Jacket (Red Jacket memorial in Forest Lawn Cemetery, Buffalo, NY, photo by Art Giacalone circa 1980)

The landmark submission document also includes the following description of Otetiani/Red Jacket:

… Red Jacket, a prominent and well-spoken Seneca diplomat who lived in Buffalo Creek during the middle and later years of his life, was among the most ardent of Seneca traditionalists. His conservatism showed in his skepticism of Christian missionaries and land sales to speculators… He was involved in most of the land deals during the 1790s, as well as the delicate negotiations with U.S. emissaries interested in securing the Seneca’s neutrality at a time when Indian parties were ravaging American settlers in the Ohio Valley. Red Jacket’s peace advocacy earned him a medal from president George Washington in 1792, and the Seneca remained neutral during the settlement of Western New York.

As you most likely know, on May 17, 2021, the Onöhsagwë:de’ Cultural Center, in Salamanca, New York , hosted a joyous celebration to honor the return to the Seneca Nation of the Red Jacket Peace Medal. I had the honor of sitting outdoors in the sun as part of the crowd attending the “repatriation” ceremony. It was with great pride and respect that the Seneca people welcomed home a truly significant cultural artifact. While I’ll talk a bit about May 17 below, that momentous event is not the focal point of this posting.

Red Jacket medal - front sni (Red Jacket Peace Medal, photo courtesy of Seneca Nation)

The information at the beginning of this piece, regarding the significance to Red Jacket and the Seneca Nation of the Buffum Street area, was provided for a reason. Just four blocks or so from the site of the Seneca Indian Park – at the corner of Cazenovia and Seneca Streets – stands a (larger than?) life-size statue of a Native American. Although the person represented by the wooden sculpture is not identified, he is conspicuously wearing a prominent oval-shape medal around his neck, and, most certainly, is Otetiani or Red Jacket.

There is one major problem, as reflected in the following photos. Over the years, the statue has been vandalized and is significantly damaged:

I am unable to identify the sculptor, and am unaware of when or how the statue’s location was chosen. But it stands next to Cazenovia Street in the City of Buffalo’s right-of-way. Officials at the city’s Parks department were cooperative earlier this year when they learned that metal detectorists and artifact-hunters had been digging at the Buffum Street sacred burial site. They responded by putting up a “No Digging” sign.

Seneca Indian Park - Buffum St. NO DIGGING ALLOWED sign 04-01-2021

I have no reason to believe that Buffalo South District Council Member Christopher P. Scanlon and Commissioner of Public Works, Parks & Streets, Michael J. Finn, would not be equally willing to see the statue of Red Jacket returned to its original glory once the sculpture’s current condition is brought to their attention. I urge anyone interested in seeing this restoration project commenced and expeditiously brought to fruition to reach out to these public officials:

Hon. Christopher P. Scanlon, 65 Niagara Square, Room 1401, Buffalo, NY 14202; (716) 851-5169; cscanlon@city-buffalo.com.

Hon. Michael J. Finn, 65 Niagara Square, Room 502, Buffalo, NY 14202; (716) 851-5636; mfinn@city-buffalo.com.

Now let’s get back to the May 17, 2021 celebration.

Seneca Nation President Matthew Pagels, and Cultural Center Director Joe Stahlman, can certainly do a much better job than I explaining the importance to the Seneca people of the “repatriation” of the Red Jacket Peace Medal. So here’s the Seneca Nation’s news release. But I do want to share two quotes that I feel capture the spirit of the day:

“This medal represents what lives inside each and every Seneca — the heart of a sovereign people and our rightful recognition as such,” said Seneca Nation President Matthew B. Pagels. “This is our identity as a Nation. It cannot be owned, bought or sold. It belongs to all of us and is passed from generation to generation so it can live forever.”

“I like to remind the United States that the Haudenosaunee — especially the Seneca – play an important role in your early survival; that is what I see when I look upon the medal,” said Dr. Joe Stahlman, director of the Seneca-Iroquois National Museum. “We need to have moments of reconciliation. There are things from the past that still matter to many of us of here today and we need to talk about them. We need to all heal and find peace.”

I also want to mention a few of the dignitaries in attendance at the repatriation ceremony (frankly, I prefer the term “reMatriation”) who played central roles – alongside Dr. Stahlman and President Pagels – in making the return happen: Melissa Brown, Executive Director, Buffalo History Museum; State Senator Sean Ryan; Robert Jones, Seneca Nation Councilor; and, Walter Mayer, Buffalo History Museum’s Senior Director of Collections.

Lastly, I’ll end this post with images of the rarely-seen reverse side of the Peace Medal (the side closest to Otetiani’s heart) gifted by George Washington to Red Jacket in 1792 (and, reflecting the sky on 05/17/2021); the most significant piece of the cake crafted for the celebration; and, importantly, some of the folk in attendance.

(Peace Medal’s reverse side, photo by Art Giacalone 05/17/2021)

(Photo by Art Giacalone, 05/17/2021)

With All Due Respect to Otetiani and the Seneca,

Art Giacalone

For the unfortunate not strolling Caz Park today

Posted by Arthur J. Giacalone on May 2, 2021

Posted in: Cazenovia Park, City of Buffalo, Olmsted Parks, South Buffalo, WNY Photos. Leave a comment

Click on the photo if you’d like to enlarge it.

With All Due Respect,

Art G.

Buffalo’s Common Council has the same rights as any other client

Posted by Arthur J. Giacalone on April 14, 2021

Posted in: City of Buffalo, Professional Ethics. Leave a comment

When a member of the City of Buffalo’s Corporation Counsel’s Office represents the City of Buffalo Common Council in a court proceeding, or is asked for legal advice and guidance by the Common Council or one of its members, she or he is engaging in an attorney-client relationship with the Common Council. On each such occasion, the attorney – the Corporation Counsel or the designated lawyer – owes to the client – the Common Council or its members – the same duties and responsibilities as any other attorney owes to her or his client.

In other words, Buffalo’s legislative body and the duly elected legislators have the same rights as any other client when being represented or advised by the City’s Corporation Counsel’s Office.

So it came as no surprise to this lawyer when I saw the following headline in the April 12, 2021 Buffalo News: “Council seeks an independent attorney.” It goes without saying that every client is owed an independent attorney. The issues expressed by Council President Darius G. Pridgen, University Council Member Rasheed N.C. Wyatt, and Majority Leader David A. Rivera – delays in performance of tasks, conflicts of interest between the Common Council and Mayor Byron W. Brown (who appoints the Corporation Counsel), and confidentiality of information – are legitimate and problematic. And, they bring to mind the following rights, in particular, found in the official “Statement of Client’s Rights” that every New York State lawyer, including a lawyer in a government law office, owes his or her client:

From STATEMENT OF CLIENT’S RIGHTS

– You are entitled to your lawyer’s independent professional judgment and undivided loyalty uncompromised by conflicts of interest.

– You are entitled to have your questions and concerns addressed promptly and to receive a prompt rely to your letters, telephone calls, emails, faxes, and other communications.

– You have the right to privacy in your communications with your lawyer and to have your confidential information preserved by your lawyer to the extent required by law.

– You are entitled to have your legitimate objectives respected by your attorney…

– You are entitled to be kept reasonably informed as to the status of your matter and are entitled to have your attorney promptly comply with your reasonable requests for information, including your requests for copies of papers relevant to the matter. You are entitled to sufficient information to allow you to participate meaningfully in the development of your matter and make informed decisions regarding the representation.

– You are entitled to have your attorney handle your legal matter competently and diligently, in accordance with the highest standards of the profession. If you are not satisfied with how your matter is being handled, you have the right to discharge your attorney and terminate the attorney-client relationship at any time…

[Click here for the full Statement of Client’s Rights, codified at 22 NYCRR 1210.1.]

It is true that the City of Buffalo’s Charter, when listing the duties and powers of the Corporation Counsel, states, “The corporation counsel shall prosecute and defend all actions and proceedings brought by or against the city or any of its officers, departments, commissions, board, or other agencies…” However, the Charter cannot overrule an attorney’s obligation to afford her or his client the rights and ethical behavior mandated in New York State’s “Rules of Professional Conduct.” The Charter indirectly acknowledges this reality when it also lists the following amongst the Corporation Counsel’s duties and powers: “When necessary, the corporation counsel shall have the power to designate the need for counsel outside of the law department to deal with conflicts of interest or special circumstances.”

I would argue that the City’s “top lawyer” is under the duty to “designate the need for counsel outside of the law department” whenever its client, the Common Council, expresses its belief that a conflict of interest or special circumstances exists. It is the client’s right to express such concerns, and to have those concerns respected by its attorney.

The Common Council deserves independent legal representation and advice. The existence of an independent attorney, dedicated solely to the needs and preferences of the Common Council, would not only improve its efficiency and effectiveness. It would strengthen the City’s legislative branch by reinforcing its independence from the executive branch. That would serve the best interests of the Common Council’s constituents, the residents of the City of Buffalo.

With All Due Respect,

Art Giacalone

Buffalo’s Common Council must fully utilize SEQRA when assessing cannabis cultivation facilities

Posted by Arthur J. Giacalone on April 12, 2021

Posted in: Cannabis, City of Buffalo, Development, SEQRA, South Buffalo, Waterfront. Leave a comment

[CAVEAT: When this post was initially written, I incorrectly believed that the City of Buffalo Common Council had not rezoned land at the Buffalo Lakeside Commerce Park in furtherance of the subject cannabis cultivation facility. In fact, on May 14, 2019, Buffalo’s Common Council did approve Zephyr Partners’ request to rezone four parcels of land on Laborer’s Way from D-C (“Flex-Commercial”) to D-IL (“Light Industrial”). On March 30, 2021, when I investigated the zoning status of 15, 51, 87 and 125 Laborer’s Way, in preparation for writing this series of posts, the City of Buffalo’s on-line “Property Information” site incorrectly listed the zoning status of each of the four parcels as “D-C.” I regret any confusion this post may have caused regarding the Common Council’s action in May 2019 in furtherance of Zephyr Partners’ plans.]

[UPDATE: What was a theoretical threat when I wrote this post this past April was become a reality. Zephyr Partners has applied for a Major Site Plan Review for Phase 1 of its proposed 1.375 million square-foot cannabis cultivation/processing/ distribution facility at the Buffalo Lakeside Commerce Park on Buffalo’s Outer Harbor. The City of Buffalo Planning Board will conduct a virtual public hearing during its October 25, 2021 meeting (which starts at 4 PM) to allow the public an opportunity (most likely its only opportunity) to address the proposed project. It appears on the agenda as 15 Laborers Way and 310 Ship Canal Parkway. The applicant’s submissions in support of its request can be found at pages 144-162 of the Planning Board’s 10/25/2021 Journal (the SEAF is at pp. 147-149). Note: The Common Council rezoned 15 Laborers Way and three adjoining parcels from D-C to D-IL on May 14, 2019. [The papers before the Common Council at that time can be found at pages 819-1,022 of the “Proceedings” for the May 14, 2019 regular meeting.]

[Note: This posting is the third in a three-part series regarding the development of cannabis cultivation facilities in Buffalo, NY, and will discuss how SEQRA provides the investigatory tools to assist Buffalo’s Common Council in assessing the potential environmental impacts of a marijuana grow facility. The first post, titled “South Buffalo Cannabis Facility is not in the Public Interest, ” provides my concerns regarding a marijuana cultivation-processing-shipping facility proposed in 2019 for the southern end of Buffalo’s Outer Harbor by Zephyr Partners (and, that is expected to be resurrected now that NYS has an adult-use marijuana law). The second, “Buffalo’s Green Code Prohibits Cannabis Cultivation Facilities,” explains how I reached the conclusion that the City of Buffalo’s zoning ordinance does NOT currently permit a cannabis “grow” facility within its borders.]

Zephyr Partners applied in early 2019 to rezone about 15 acres of land at the Buffalo Lakeside Commerce Park [BLCP] in South Buffalo as part of its larger plan for a 47-acre, 1.375 million square-foot cannabis cultivation, processing, and shipping facility a short distance from the Lake Erie shoreline. The developer proposed rezoning four parcels from D-C Flex Commercial to D-IL Light Industrial. [CORRECTION: On May 14, 2019, Buffalo’s Common Council did approve Zephyr Partners’ request to rezone 15, 51, 87 and 125 Laborer’s Way from D-C (“Flex-Commercial”) to D-IL (“Light Industrial”) in furtherance of the project.]

I do not doubt the good intentions of the Common Council or its staff when they reviewed the proposed project two years ago and attempted to assess its potential environmental impacts. But, I assume that no one involved in the review is an environmental scientist, licensed engineer, or architect. In effect, this complex and critical task – concerning what is for Buffalo a new and unregulated industry – was performed with a proverbial mask over their eyes and arm tied behind their backs. In essence, the scope of the environmental review was defined by Wendel, the engineering and architectural firm hired by Zephyr, and virtually all of the information the Common Council and its staff relied upon when assessing potential impacts came from the folks least likely to be objective and totally forthcoming, the project sponsor’s consultants.

Without adequate tools, the Common Council members unanimously adopted, a “Determination of Non-Significance” or “Negative Declaration” under the State Environmental Quality Review Act [SEQRA]. That document, which was approved on May 14, 2019, declared that the proposed 1.375 million-square-foot cannabis cultivation facility “will not have an adverse impact on the quality of the environment,” and ended environmental review by concluding that “a Draft Environmental Impact Statement [DEIS] will not be prepared.”

Here are principles and factors I urge the City of Buffalo to keep in mind if and when the recent enactment of New York’s Cannabis/Marijuana Regulation & Taxation Act (MRTA) motivates Zephyr Partners to revive its dormant project:

1. There is a presumption under SEQRA that the proposed facility – a “Type 1 action” – “is likely to have a significant adverse impact on the environment and may require a DEIS” (Draft Environmental Impact Statement). [See 6 NYCRR 617.4(a)(1).] Zephyr’s massive cannabis cultivation/processing/shipping facility does not just barely meet SEQRA’s thresholds for a “Type 1 action.” It obliterates those standards:

(a) The proposed 1,375,000 square-foot facility is nearly six times the footprint of the 240,000 square feet of gross floor area for non-residential construction that triggers SEQRA’s Type 1 status in a city the size of Buffalo. [Zephyr’s March 5, 2019 letter of intent does not mention this category of Type 1 actions.]

(b) The plan to physically disturb 47.6 acres of the site is nearly five tines SEQRA’s 10-acre threshold for a Type 1 action.

Additionally, the fact alone that the proposed cannabis facility is “substantially contiguous to any publicly owned or operated parkland, recreation area or designated open space” – that is, immediately abuts the Ship Canal Commons – makes it a Type 1 action carrying with it the presumption that it is likely to have a significant adverse impact on the environment. [Zephyr’s March 5, 2019 letter of intent also does not mention this category of Type 1 actions.]

2. The obligation of a lead agency to issue a Positive Declaration and require the project sponsor to prepare a DEIS is triggered by “a relatively low threshold” – that is, the DEIS is needed if the action MAY have a significant effect on any one or more aspects of the environment. [See 6 NYCRR 617.7(a)(1), 617.1(c).] Under SEQRA, the Common Council has the obligation – as “stewards of the air, water, land and living resources” – to not shy away from requiring a DEIS, and to not rationalize why a Negative Declaration should be issued. SEQRA mandates that a Positive Declaration be issued whenever a proposed project may have a significant adverse impact on any aspect of the environment (including aesthetic resources or neighborhood character).

3. The Environmental Impact Statement is “the heart of SEQRA”. SEQRA has designed the Draft EIS and Final EIS process to ensure that the lead agency undertakes a full review of the adverse environmental effects of a project, provides the public with access to the review and the ability to assist the agency in the decision-making process, considers alternatives to the project, and carefully considers meaningful and practicable mitigation measures. [See, for example, Miller v. City of Lockport, 210 AD2d 955 (4^th Dept. 1994).] It is an effective tool to help guarantee an informed decision whether to approve or deny a proposed action.

4. As lead agency, the Common Council has the authority under SEQRA to hire environmental, engineering, or planning consultants to review the project sponsor’s DEIS, and to charge the applicant a fee to recover the actual costs of that review. SEQRA anticipates that members of a lead agency often may lack the technical expertise needed to fully assess the potential impacts pf a proposed project. It is for that reason that the SEQRA regulations not only require a lead agency to inform other interested agencies of a proposed action and solicit their input, but also empowers the lead agency to hire consultants with the requisite expertise, and to pass on the expense to the project sponsor. [See 6 NYCRR 617.13(a), (c).]

Application of these principles to Zephyr Partners’ proposed facility demonstrates the important role of the DEIS process. Here are several examples:

A. Odors.

As noted in my April 6, 2021 post, Zephyr’s engineering consultant mentions in its Full Environmental Assessment Form [FEAF] that there are “odors associated with processing” cannabis – an accessory use at the site – but they say nothing about the strong skunk-like odor associated with the growth of the plant, the primary activity to be conducted 24/7 throughout the entire year. The pervasive and offensive nature of the odors resulting from marijuana cultivation (acknowledged by Public Health Ontario, and the Air-Conditioning, Heating and Refrigeration industry, and even in the Cannabis Industry Times) mandates a “hard look” that goes beyond the self-serving, anecdotal, non-scientific claim in Zephyr’s supporting papers that a California marijuana facility where Chlorine Dioxide is used for odor mitigation reports no complaints. Given the fact that the City of Denver’s 2018 “Cannabis Environmental Best Management Practices Guide” (BMP) strongly recommends the use of carbon filtration, not ClO2, as the best odor-control technology for cannabis cultivation, the DEIS process would allow an assessment and comparison of alternative mitigation measures by experienced engineering professionals. This is especially needed given Zephyr’s plans to construct multiple “greenhouses” immediately adjacent to the walking/biking/nature trails of the Ship Canal Commons, and in close proximity to the existing companies at the Buffalo Lakeside Commerce Park (Sonwil Distribution, CertainTeed, and Cobey, Inc.).

B. Impacts on Aesthetic Resources, Parkland, and Existing Character.

As also noted in my April 6^th posting, the proposed project is not an idyllic “pot farm.” Zephyr plans a massive industrial facility, with seven “high tech greenhouses” 30 feet tall, and ranging from 94,000 to 168,500 square feet in area. This project would not only reside across Tifft Street from the Tifft Nature Preserve, and be visible from the Seaway Trail (a national scenic by-way), its southern boundary would adjoin the Ship Canal Commons – a public park and nature trail. SEQRA considers a proposed project’s location that is “substantially contiguous” to a public park, recreation area, or open space, to be of such potential concern that it makes it a “Type 1 action” as long as it “exceeds 25 percent” of its designated Type 1 thresholds. The southernmost cannabis cultivation (“grow”) facility alone, at 94,080 square feet, is 50% larger than the 60,000-square-foot minimum needed to trigger the Type 1 status when a project is adjacent to a public park/recreation area/open space.

When the Common Council issued its March 2019 Negative Declaration, concluding that the proposed action would not have a significant adverse impact on aesthetic resources, open space or recreational resources, or existing neighborhood character, the determination of non-significance incorrectly stated that “properties that are industrial in nature border the new development on the south…” This characterization contrasts starkly with two descriptions of the adjacent Ship Canal Commons found at the website of Wendel, Zephyr’s engineering consultant: “a 22-acre interpretive greenspace” and “a pastoral passive activity space.” With the issuance of a Positive Declaration, the lead agency would be in a position to require the project sponsor to provide objective evidence of the potential impacts of 30-foot tall, 94,080-square-foot and larger greenhouses located immediately to the north of this 22-acre public park and open space. That evidence could include, for example, “view shed analysis” and computer-generated images. With such documentation, the Common Council and the public would be in a position to reach fully-informed conclusions regarding the project’s potential adverse impacts on aesthetics, parkland, and neighborhood character. [Click on an image to enlarge it.]

C. Impacts on Human Health.

The creation of a hazard to human health is one of the “indicators of adverse impacts on the environment” found in the SEQRA regulations. [See 6 NYCRR 617.7(1)(vii).] When addressing this criterion, both Zephyr’s 2019 submission in support of its rezoning request, and the Common Council’s Negative Declaration, are silent on the topic of worker health at a cannabis cultivation facility. However, had a Positive Declaration been issued in 2019, members of the public would have been in a position to advise Buffalo’s legislative body of an article prepared by the American Institute of Architects’ risk-management arm, AIA Trust, entitled, “Guide to Marijuana Facilities Design.” That document attributes to “grow facilities” temperature and humidity comparable to indoor swimming pool centers, conditions that expose employees to fungi and other undesirable results. Moreover, under the subheading, “Worker Safety,” the AIATrust article states: “At marijuana grow facilities, workers are also subject to chemical exposure from fertilizers and pesticides, from sulfur dioxide as a result of fumigation, and from carbon dioxide asphyxiation.” [See AIATrust Guide-Marijuana-Facilities-Design.]

Given Zephyr’s claim that its facility would ultimately employ 500 to 1,000 workers, the human health implications of the proposed cannabis cultivation complex is an important topic for consideration under SEQRA.

D. Conflict with Official Goals and Plans. There are a number of significant ways in which the proposed action contradicts the March 2019’s conclusions that the proposed action is “consistent with the current Land Use Plan and the goal of further developing the Industrial Park,” and “with the character of the neighborhood”:

(1) The zoning map adopted by the Common Council in December 2016 is nuanced. It places the land to the south of Laborers Way and immediately adjacent to the Ship Canal Commons – a public park zoned D-OG – in the less intrusive, less dense D-C Flex Commercial zone. The land to the north of Laborers Way is zoned D-IL. The proposed rezoning would do away with that rational distinction.

(2) The goal expressed by the Buffalo Urban Development Corporation when Laborers Way and surrounding infrastructure was completed was not merely to further develop the Industrial Park, but the specific goal of “attracting green companies to the City of Buffalo.” As addressed below in “Impacts on Energy,” a cannabis cultivation project is anything but “green.” Additionally, the BUDC divided the 47-acres adjoining Laborers Way into eight (8) medium-sized parcels, referred to as “Available Sites,” not one large assemblage serving one company.

(3) The proposed project, with 1,375,000 square feet of development on 47.6 acres, has a developed density of 28,888 square feet per acre. That proposed density is greatly out-of-character with the existing businesses at the Buffalo Lakeside Commerce Park: Sonwil Distributor consists of 300,000 square feet of structures on 52 acres, for a density of 5,769 square feet per acre; CertainTeed has 270,000 square feet on 25 acres, or 10,800 square feet per acre; and, Cobey’s building contains 90,000 square feet (which is a smaller footprint than Zephyr’s smallest greenhouses) on 12 acres, with a density of 7,500 square feet per acre.

(4) The adopted plans and maps envision the existence of a public right-of-way, Laborers Way (which was constructed with taxpayers’ money). Zephyr Partners’ plan eliminates Laborers Way.

E. Impacts on Energy.

Zephyr Partners states in its FEAF that its facility would generate an estimated annual demand of 25 MW of electricity. Currently the site uses none. When the infrastructure was installed (at taxpayer expense) for the portion of the Buffalo Lakeside Commerce Park where the proposed cannabis cultivation project would be located, the Buffalo Urban Development Corporation expressed its goal of “attracting green companies to the City of Buffalo.” According to Denver’s 2020 Best Management Practices guidelines, the cannabis cultivation industry is far from a “green” industry. It is a “resource intensive process,” largely due to energy demands for lighting, HVAC and dehumidification, which are a leading driver of greenhouse gas emissions, and result in the industry’s sizeable environmental footprint. The DEIS process would allow the gathering of objective data so that the Common Council can compare the proposed project’s impact on energy with that of “green companies.”

The above list of environmental concerns relating to cannabis cultivation facilities is not meant to be exhaustive. Nonetheless, as long as any of these areas of adverse environmental impacts “may” be considered significant, the Common Council is obligated under SEQRA to issue a Positive Declaration and require preparation of a Draft Environmental Impact Statement.

With All Due Respect

Art Giacalone

Buffalo’s Green Code Prohibits Cannabis Cultivation Facilities

Posted by Arthur J. Giacalone on April 8, 2021

Posted in: Cannabis, City of Buffalo, Development, Green Code, South Buffalo, Waterfront, Zoning Law. 1 Comment

[Note: This posting is the second in a three-part series regarding the development of cannabis cultivation facilities in Buffalo, NY. The first post, titled “South Buffalo Cannabis Facility is not in the Public Interest, ” provides my concerns regarding a marijuana cultivation-processing-shipping facility proposed in 2019 for the southern end of Buffalo’s Outer Harbor by Zephyr Partners (and, that is expected to be resurrected now that NYS has an adult-use marijuana law). Today I explain why I have reached the conclusion that the City of Buffalo’s zoning ordinance does NOT currently permit a cannabis “grow” facility within its borders.]

Zoning ordinances are an attempt by cities, villages and towns to protect and promote the public health, safety and welfare by establishing standards intended to ensure the orderly and compatible use of land. These local laws divide a municipality into geographical areas called zones or zoning districts, and spell out the uses, and scale of buildings and lots allowed in each zone. [For a basic overview of land use and zoning laws, see the citizen’s guide that I helped to write, published by Partnership for the Public Good, Buffalo, in December 2018: click here.]

The City of Buffalo’s zoning ordinance is officially called the Unified Development Ordinance (UDO), and is unofficially known as the “Green Code.” It was adopted by the city’s legislative body, the Common Council, in late 2016, and went into effect in early 2017. The UDO contains twenty-two zones, and spells out the activities or uses that are allowed in each zone. The UDO/Green Code’s list of permitted uses is found at ”Table 6A, PRINCIPAL USES,” and identifies eighty-six (86) categories of uses, organized under eight (8) subheadings: Residential, Civic, Lodging, Retail & Service, Employment, Agriculture, Transportation, and Infrastructure.

[Click on an image to enlarge it.]

The term “principal use” refers to the main or primary use or uses conducted on a lot or within a building; in contrast, an “accessory use” is a use located on the same site as a principal use that is incidental or subordinate to the principal use. Buffalo’s zoning ordinance allows a site to have more than one principal use, as long as each principal use is permitted in the zone.

The UDO’s “Principal Uses ” table divides uses into two categories: “permitted uses,” which are uses permitted “by right” in the particular zone, that is, that are in compliance with the UDO and may be processed administratively by the city without the need for a public hearing; and, “special use” uses, which are activities considered to have increased potential for incompatibility in a zone, and, for that reason, require the approval of a “special use permit” by the Common Council – after a public hearing – before being allowed in the zone.

Under the UDO/Green Code, a land owner or developer who wishes to conduct an activity at a particular site needs to first identify the zone within which the site is located (by checking out the UDO/Green Code’s Citywide_Zoning_Map_January2017, or by going to the Property Information tab at the City’s website). If the use is listed as a “permitted use” on the UDO’s Table 6A, it is allowed “by right” in the zone. Additionally, if an activity is not included as a permitted use in any of the twenty-two zones, but the City’s “Zoning Administrator” concludes that it is “similar in nature and impact” to a use listed in Table 6A, the activity may be treated as a permitted use. On the other hand, “If a use is not listed and cannot be interpreted as similar in nature and impact to a use that is listed in Table 6A, the use is deemed prohibited.” [See, UDO, Section 6.1.1(B), (D) & (E).]

With this understanding of the UDO, we can apply these rules to Zephyr Partners’ March 2019 proposal for a cannabis cultivation project on eight parcels of land on Laborers Way in South Buffalo.

Zephyr’s design team provided the following “Project Description” in its March 5, 2019 correspondence to the Common Council:

The proposed action is to develop 1.375 million square feet of cannabis cultivation facilities along with processing, quality control, extraction, research, and shipping/ receiving facilities. The proposed development makes use of eight existing sites to the north and south of Laborers Way in the City of Buffalo (north of Union Ship Canal in the Lakeside Commerce Park). Roughly 65% of the built structures will house the growing facilities while the other 35% will house the accessory functions. Protected wetlands are immediately north of the site and the Union Ship Canal is to the south across a public park.

Four of the eight parcels – located on the north side of Laborers Way – are zoned “D-IL Light Industrial,” and total about 27 acres The four parcels on the south side of Laborers Way are in the “D-C Flex Commercial” zone, and comprise roughly 20.5 acres. With its March 5, 2019 submission, Zephyr asked the Common Council to rezone the four D-C Flex Commercial parcels to D-IL Light Industrial, claiming that their proposed cannabis production facility was permitted by right in the D-IL zone, and with a special use permit in the D-C zone. [CORRECTION: On May 14, 2019, Buffalo’s Common Council rezoned 15, 51, 87 and 125 Laborer’s Way from D-C to D-IL.]

I can find no evidence in the public record that City Hall administrators – or the Common Council – ever questioned the project sponsor’s assertion that a cannabis cultivation facility is a permitted use in the D-IL and D-C zones. As explained below, I have concluded that Zephyr’s assertion is incorrect. The growing or cultivation of marijuana envisioned by Zephyr – its principal use – neither fits into any listed permitted use in the D-C or D-IL zones (or, any of Buffalo’s 22 zones), nor can be reasonably treated as similar in nature and impact to a permitted use.

At first glance, the terminology used for two of the UDO/Green Code broad categories of “principal uses” – Agriculture and Employment – might appear as potential candidates for allowing marijuana cultivation activities. But the integrity of the zoning process mandates that the City’s zoning administrators look beyond Table 6A’s subheading when treating a proposed activity as a permitted use.

“Cannabis cultivation facility” is not expressly listed as a permitted activity in the UDO. That’s not a surprise given the illegality of cannabis usage by the general public when the Green Code was adopted in late 2016. Consistent with the urban character of the City of Buffalo, there are only two activities – and both limited in scope – permitted as an “Agriculture” use in the UDO: “Community Garden” and “Market Garden.” Neither category envisions a massive, for-profit, commercial farm within the city limits, and neither can be reasonably thought of as a commercial-scale marijuana “grow” facility. Here is what the Green Code provides:

6.1.7 Agriculture

A. Community Garden. A site where food, ornamental crops, or trees are grown for group, shareholder, or lessee use, or for donation.

1. Seed, fertilizer, and feed must be stored in sealed, rodent-proof containers.

2. No equipment, process, or other practice may be employed at a community garden that creates dust or odors detectable off the property, or any other effect determined by the Commissioner of Permit and Inspection Services to be detrimental to the public health, safety, or welfare.

B. Market Garden. A site where food, ornamental crops, or trees are grown for sale to the general public.

1. A special use permit for a market garden may be granted in an N-4-30 or N-4-50 zone only
if located east of Jefferson Avenue, south of Best Street/Walden Avenue, west of Bailey
Avenue, and north of Clinton Street.

2. Seed, fertilizer, and feed must be stored in sealed, rodent-proof containers.

3. No equipment, process, or other practice may be employed at a market garden that
creates dust or odors detectable off the property, or any other effect determined by
the Commissioner of Permit and Inspection Services to be detrimental to the public
health, safety, or welfare.

4. Agricultural products, plants, eggs, and honey grown or produced on or within the
subject property or within the City of Buffalo may be sold on the premises if the market
garden use is the only use of the subject property or occupies at least 50% of the area
of the property. In addition, foods prepared on site or off site may be sold if the principal
ingredients are grown or produced on the subject property or within the City of Buffalo.

5. On-site sales within an N-2R, N-3R, N-4-30, or N-4-50 zone must comply with the following:
a. No structure or building except for a maximum of one market stand may be
used to sell produce or other goods. b. On-site

The massive quantity of marijuana Zephyr plans to grow at the South Buffalo site certainly is not the “food, ornamental crops, or trees” envisioned in the UDO’s description of “Community Garden.” And, under New York’s newly enacted adult-use marijuana law – the Cannabis/Marijuana Regulation & Taxation Act (MRTA) – licensed growers and processors are prohibited from owning retail stores that sell their product directly to the consumer. In light of MRTA’s restrictions, one could not logically treat the proposed cannabis growing facility as a site selling its crop to the general public.

Given the pervasive skunk-like odors associated with cannabis crops, and the energy-intensive nature of the business (see the discussion and links in “South Buffalo Cannabis Facility is not in the Public Interest”), it would be arbitrary and irrational to interpret cannabis cultivation operations as similar in nature and impact to either a community garden or market garden.

While a cannabis grow facility will generate jobs, it is not an activity that falls within the uses in the UDO/Green Code’s “Employment” category. None of the Employment listed uses involve the growing of crops. And, as the following description of “Industrial, Light” demonstrates, a non-manufacturing activity such as the growing of crops was not what the Common Council considered “light industrial” when the UDO was enacted:

6.1.6 Employment

…

Industrial, Light. The processing or manufacturing of finished products or parts from previously prepared materials including processing, fabrication, assembly, treatment, and packaging of such products, and incidental storage, sales, and distribution of such products, provided that all manufacturing processes are contained entirely within a fully enclosed building. Any heat, glare, dust, smoke, fumes, odors, or vibration are confined to the building. A light industrial use may include a showroom or ancillary sales of products related to the items manufactured on-site.

While the various “accessory functions” included in Zephyr Partners’ project description – processing, quality control, extraction, research, and shipping/receiving facilities – may be permitted uses in the D-IL and D-C zones, the proposed “primary use” – over 800,000 square feet of marijuana cultivation facilities – is neither listed as a permitted use or special use in any of the Green Code’s 22 zoning districts, nor can be reasonably treated as similar in nature and impact to a permitted use.

To quote UDO Section 6.1.1(D)(2), “If a use is not listed and cannot be interpreted as similar in nature and impact to a use that is listed in Table 6A, the use is deemed prohibited.”

With All Due Respect

Art Giacalone

Buffalo’s Common Council must fully develop its vision for the Outer Harbor before rezoning any of it

Posted by Arthur J. Giacalone on February 6, 2021

Posted in: City of Buffalo, Development, Green Code, South Buffalo, Waterfront, Zoning Law. 1 Comment

[Update: At its February 8, 2021 public meeting, the City Planning Board “tabled” the application of RCR Yachts, Inc., to rezone 9 & 11 City Ship Canal – the site of RCR’s marina and boat sales, storage an dockage business – from N-3E to D-IL. In response to questions from Planning Director Nadine Marrero, RCR agreed to the tabling of its requested zoning map amendment while it seeks variances on February 17, 2021 from the City’s Zoning Board of Appeals. RCR’s pending application at the ZBA requests area variances from N-3E’s building setback and transparency requirements to allow construction of a 4,300-square-foot boat storage and display building. At the 2/8/2021 meeting, the Planning Board did approve, with no substantive discussion, RCR’s Coastal Consistency Application. Note: Don’t quote me, but I presume that RCR’s rezoning application will not be considered at the Common Council’s February 9, 2021 Legislation Committee.]

An application currently pending at Buffalo City Hall to rezone a 14-acre site at 9 & 11 City Ship Canal has highlighted an issue that I believe needs to be addressed by Buffalo’s legislative body: The Common Council must comprehensively consider and publicly express its long-term vision for the Outer Harbor, with and without the Skyway.

The Outer Harbor as depicted in a map of open space resources included in the City’s Local Waterfront Revitalization Program (LWRP)

By necessity, the Common Council’s analysis should include reconsideration of what I believe is an arbitrary limitation in the UDO/Green Code’s definition of the “Outer Harbor boundaries.” As currently delineated, the “Outer Harbor Review Area” [OHRA] abruptly ends at the southern boundary of the former NFTA Terminal buildings. As a result, the current zoning/development ordinance precludes from the protections provided by the OHRA standards all the shoreline properties extending southerly from the former Freezer Queen site (where the 23-story Queen City Landing tower was proposed) to the Lackawanna city line.

The rezoning application for 9 & 11 City Ship Canal was filed by RCR Yachts, Inc. , which describes itself as “an active business providing sales, storage, dockage and service to the recreational community on the waterfront.” RCR seeks to alter the property’s zoning classification from N-3E (Mixed-Use Edge) to D-IL (Light Industrial).

The D-IL zoning district allows “by right” many uses and activities not permitted in the N-3E zone, including solar farm, major utilities facility, light and heavy industrial use, heliport, freight and passenger terminals, drive-thru facility, and outdoor amusement facility. While pondering this list, note that the subject parcel is located along the west shore of the City Ship Canal, to the east and in close proximity to Outer Harbor land and shoreline zoned D-OG (Green) and D-ON (Natural), and “developed” as open space, park, and ecologically sensitive preserves. [RCR’s zoning application refers to the Outer Harbor parcels as “undeveloped green space and then Lake Erie.”] Only Fuhrmann Blvd. separates RCR’s 14-acre property from the D-OG and D-ON zones.

RCR’s N-3E property is part of the narrow strip of beige-colored land running north-to-south in this zoning map excerpt:

The need for a clear understanding of the Common Council’s vision for the Outer Harbor is underscored by the criteria the Common Council (as well as the City Planning Board, in its advisory capacity) is obliged to consider when presented with a request to amend the UDO/Green Code’s zoning map. Those approval standards include whether the proposed rezoning “corrects an error” or “reflects a change in policy” by the Common Council, whether the proposed zoning map amendment is “compatible with existing form, pattern, use and zoning of nearby property,” and whether the proposed rezoning is “consistent with the trend of development, if any, in the general area of the property.”

The Planning Board’s February 8, 2021 agenda includes its consideration of the proposed rezoning of 9 & 11 City Ship Canal. That issue is also on the February 9, 2021 agenda of the Common Council’s Legislation Committee. I am not certain when the rezoning application will be back before the entire Common Council for a vote, but I assume it will be soon. I am inserting below an email message that I sent on February 6, 2021 to the City Planning Board (by way of the Planning Director, Nadine Marrero), and to each of the nine Common Council Members. I’ll include the email addresses, and urge you to contact the City of Buffalo decision-makers if the issue raised in either this posting or my email correspondence are important to you.

With All Due Respect,

Art Giacalone

From: “Arthur Giacalone”
To: “cscanlon@city-buffalo.com”, “nmarrero@city-buffalo.com”, “jferoleto@city-buffalo.com”, “darivera@city-buffalo.com”, “dpridgen@city-buffalo.com”, “mnowalkowski@city-buffalo.com”, “jgolombek@city-buffalo.com”, “uwingo@city-buffalo.com”, “rwyatt@city-buffalo.com”, “bbollman@city-buffalo.com”
Cc: “mshea@city-buffalo.com”
Sent: Saturday February 6 2021 11:12:58AM
Subject: Deny Rezoning of 9-11 City Ship Canal from N-3E to D-IL

Dear Common Council Members and Planning Board Members:

I request that this correspondence be made a part of the record of the Planning Board’s February 8, 2021 meeting, the Legislation Committee’s February 9, 2021 meeting, and any future Common Council meeting where the rezoning of 9 & 11 City Ship Canal is under consideration.

For the following reasons, I respectfully ask that the City Planning Board and Common Council Legislation Committee recommend against the application to rezone 9 & 11 City Ship Canal from N-3E to D-IL, and that the Common Council disapprove the application when the matter comes before it for a vote:

First, it would be shortsighted to make any decision to rezone the 14-acre subject parcel – or any land in the Outer Harbor area in the vicinity of the Skyway – unless and until plans for the Skyway’s removal or alteration are finalized. The presence, absence, or alteration of the Skyway would not only have a significant impact on the 9 & 11 City Ship Canal property, it would also determine the most appropriate future activities on the subject parcel and Outer Harbor lands and shoreline to the west of the site.

Second, the decision to approve or disapprove the requested rezoning must be preceded by a clear understanding of the Common Council’s vision for the Outer Harbor as a whole, and, in particular, the land in the vicinity of 9 & 11 City Ship Canal. The members of the Planning Board and Common Council cannot protect the best interests of the City as a whole – in contrast to the narrow interests of the rezoning applicant – unless and until the following questions are answered:

        (a) What was the Common Council’s reasoning when enacting the UDO and classifying the subject parcel and the land directly to its north as N-3E?

        (b) Has the Common Council concluded that either it was a mistake to place the narrow strip of land along the western edge of the City Ship Canal in the 3-NE district, or that recent and anticipated future development in the vicinity of the subject parcel and Outer Harbor area calls for a change in policy?

Third, the proposed rezoning to D-IL is inconsistent with the trend of “development” – and, the increasingly popular goal of retaining as much of the Outer Harbor as parkland and open space – in the general area of the property in question, especially to the northwest, west, and southwest of the site.

Fourth, no matter what the applicant expresses as its current plans, the rezoning from N-3E to D-IL would mean that the following uses, which are not allowed in N-3E, and are incompatible with the existing form, pattern, use, and zoning of nearby property, would be:

         (a) Permissible “by right” in the D-IL zone: solar farm; major utilities facility; light and heavy industrial; freight terminal; heliport; railway facilities; passenger terminal; tobacco/hookah/vaping establishment; outdoor amusement facility; drive-thru facility; and, heavy retail and service; and

         (b) Permissible with a Special Use Permit in the D-IL zone: wind farm; gas station (due to C-W); car wash (due to C-W); halfway house; helistop.

Fifth, pursuant to Chapter 12.1 (Noncomformities) of the UDO, the current uses and structure(s) at 9 & 11 City Ship Canal are legal and may continue, unless the use is discontinued for one year. Furthermore, the rights conferred under the UDO “run with the property and not not affected by changes in tenancy or ownership.” Therefore, the N-3E zoning status does not place an undue burden on the applicant.

Thank you for your thoughtful consideration of these comments.

Sincerely,

Arthur J. Giacalone
17 Oschawa Avenue
Buffalo, NY 14210
(716) 436-2646
AJGiacalone@twc.com

With All Due Respect

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