City of Buffalo

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 (4th 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 6th 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

[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.]  

[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

                                                …

  1. 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

Common Council should forgo appeal of Justice Montour’s Order annulling its “blighted Gates Circle” resolution

Posted by Arthur J. Giacalone on December 30, 2020
Posted in: Buffalo News, Buffalo Urban Renewal Agency, Byron Brown, City of Buffalo, Corporate Welfare, Development. 1 Comment

I am posting below my op-ed published in the Buffalo News’ Another Voice column – online on 12/29/20, and in print 12/30/20 – under the headline, “Common Council needs to apply common sense to Gates Circle.”  I greatly appreciate its publication.  This posting will add some links and images not possible in the Another Voice column.

Another Voice: Common Council needs to apply common sense to Gates Circle –

By Arthur J. Giacalone

For the second time in just over a year, State Supreme Court Justice Mark A. Montour has told Buffalo’s Common Council that it acted contrary to law, and in an arbitrary and capricious manner, when it voted to create a special economic zone – the “Linwood Lafayette Urban Development Action Area” [LLUDAA] – at the former Millard Fillmore Hospital’s Gates Circle site.

The goal of Buffalo’s legislative body is to provide enhanced tax abatements and financial assistance to TM Montante Development LLC, so the Tonawanda company can proceed with its long-stalled plans to develop the former hospital site. But the judge twice has made it clear, in November 2019 and on Dec. 17, 2020, that the obscure state law the City Hall officials are attempting to use, General Municipal Law Section 691, has a narrow purpose: to provide an extra incentive to private developers to correct or prevent blight and deterioration of city-owned property that is “appropriate for urban development.” It is not meant as a handout to a private developer in over its head.  [Click here for Justice Montour’s Nov. 16, 2019 Decision; and the Court’s ORDER granted 12-17-2020.]

The News’ editorial board called Montour’s 2019 decision “a victory for common sense.” To designate the Gates Circle site an “Urban Development Action Area,” the Common Council had to declare that the Gates Circle location is at significant risk of deterioration and blight and will continue to be substandard, unsanitary, deteriorated or deteriorating without the UDAA.

Montour exercised judicial restraint when characterizing as “curious” the legislators’ branding of this prominent area a slum. This newspaper’s editorial was equally understated when suggesting that “it takes a vivid imagination to see devastation in that corner of the city,” which sits in the midst of such a vibrant and affluent neighborhood.

A-3 NW corner Delaware-Lancaster 04-03-19

A-7 Canterbury Woods at Gates Circle 04-03-19

Equally “creative” were the gymnastics used by Buffalo’s elected officials to meet the state law’s requirement that 60% of the land included within the special district be deteriorated city-owned property appropriate for redevelopment. To reach the 60% threshold, the legislators placed portions of Delaware and Lafayette avenues and Gates Circle itself in the UDAA, treating the public rights of way as land that could be appropriately redeveloped for non-public use.

Linwood Lafayette UDAA map LLUDAA Map – Pink area is land owned by City of Buffalo; Blue area land owned by TM Montante

A-5 Gates Circle viewed from S. 04-03-19

The city and developer have now had two opportunities to convince the court that the LLUDAA is legal. They have failed. Before making its decision to appeal the recent ruling (and, it is their decision, not the mayor’s or department of law’s), the Common Council must objectively reassess the legality – and common sense – of pursuing the UDAA designation.

Admittedly, there are two potential barriers to the Common Council taking the sensible path. The default mode for human beings is to avoid admitting when a mistake has been made. It may also be difficult to receive an objective assessment from the city’s law department. The city’s lawyers serve at the pleasure of a mayor who wants TM Montante to receive the enhanced assistance.

Nonetheless, the integrity of our legislative body is at stake.

Arthur J. Giacalone is the attorney who represented the resident who challenged the LLUDAA designation, Daniel R. Sack.

**Please contact your Common Council member and ask him to not appeal Justice Montour’s December 17, 2020 annulment of the LLUDAA resolution.**

With All Due Respect,

Art Giacalone

Sunshine and Serenity at the Erie Basin Marina

Posted by Arthur J. Giacalone on November 11, 2020
Posted in: City of Buffalo, Waterfront, WNY Photos. Leave a comment

I lack the verbal dexterity needed to adequately describe the beauty and peacefulness I experienced at Buffalo’s Erie Basin Marina on the afternoon of November 10, 2020.

The results of the 2020 Presidential election announced a few days earlier had already brought a sense of relief to my political- and pandemic-pummeled psyche. The string of 70-plus degree November days was forecast to come to an end, so a final “summery” visit to the lakeshore seemed like the perfect outing. But the pervasive quiet that awaited me – the result, apparently, of a windless day, and the absence of the cacophony of sounds normally accompanying boating activities on a warm, sunny day – brought a palpable calm I hadn’t been expecting.

I’ll let the following images recapture some of what I experienced.

With All Due Respect,

Art Giacalone

“Frequent Critics” Needed at Buffalo City Hall

Posted by Arthur J. Giacalone on October 3, 2020
Posted in: B-N Medical Campus, Buffalo News, City of Buffalo, Development, Environmental Justice, Fruit Belt, Gentrification, Green Code, Jonathan D. Epstein, Zoning Law. 2 Comments

Foolish me.

I actually was optimistic on September 19 when I emailed the letter inserted below to the “Everybody’s Column” at the Buffalo News – the publication’s letter-to-the-editor (LTE) section. Despite expression of pessimism by a number of friends and fellow advocates, I believed that the editorial staff would publish my concerns about the chilling effect the newspaper’s approach to reporting zoning matters has on citizen’s willingness to voice their opinions at public hearings. My friends were correct.

So the only way “the world” will get to read my LTE is by publishing it on this humble platform. Here it is:

“September 19, 2020

Re:  Chilling effect on public’s expression of concerns

Dear Everybody’s Column,

The Buffalo News is a staunch advocate of the First Amendment’s protection of freedom of the press.  For that I am grateful.  I only wish they were as vigilant in protecting and encouraging two other freedoms assured in the same constitutional provision:  freedom of speech and the right of the people to petition their government.

When business reporter Jonathan Epstein writes about proposed development projects at Buffalo city hall, he never tells the public that the developers’ attorneys  – such as Marc Romanowski, Adam Walters, and Sean Hopkins – are repeatedly asking the zoning board for variances from the zoning code to allow their clients to build projects significantly out-of-scale and character from the structures allowed under the Green Code.  Their constant repetition of the same one note goes unmentioned.

In sharp contrast, Mr. Epstein finds it noteworthy to advise this newspaper’s readers that members of the public – such as Dan Sack, Lorna Peterson, and myself – who appear at public hearings and raise concerns about the proposals before the zoning or planning board, or Common Council, are “frequent critics” of development projects.  Those words are not meant as a compliment.

And it’s not just a reporter using this characterization.

The Buffalo News editorial board published an opinion piece two years ago in support of plans by a Buffum Street charter school to construct a high school building and gymnasium on land considered sacred by Native American tribes.  That editorial attempted to disparage the concerns that I was raising on behalf of two neighbors by describing me as “a frequent critic of development projects.”

This newspaper’s approach has a chilling effect on the willingness of residents and taxpayers to stand up in public to voice their opinions to their government officials.   It should be championing such action.

Sincerely, Arthur Giacalone“

It has been an exhausting week or two, so I’ll keep the remainder of this post short (at least, for me), hoping that a picture or two really is better than a thousand words.

Here’s the first picture:

A Site model – to scale – of The Lawrence facing Maple St., and the 8 residences on Maple.

And here’s a short version of the story.

On June 17, 2020, the Zoning Board of the City of Buffalo [ZBA] – despite strong opposition voiced by the three “frequent critics” mentioned in my unpublished LTE – approved 14 variances for “The Lawrence.” That development – proposed by Symphony Property Management LLC and Michigan Re-Dev LL – is a 133-unit, 4- to 5-story tall, 254-foot long, 129,072-square foot apartment “building” (I’m using quotation marks because it doesn’t look like a single building to my weary eyes).

Plans are to cram the The Lawrence onto what had been 15 parcels of land straddling Michigan Avenue (across the road from the Buffalo Niagara Medical Campus) and Maple Street, a small-scale residential street in the predominantly low-income, African American “Fruit Belt” neighborhood.

Map of Fruit Belt/Medical Campus area. “The Lawrence” site is proposed for the block north of Carlton and south of High Street.

Too lazy (or, perhaps, too embarrassed) to vote for each deviation from the “Green Code” separately, the variances – many of them indisputably substantial – were adopted on one motion. A majority of the ZBA [kudos to the two dissenting members, Bernice Radle and Thomas Dearing] convinced themselves that the project was not out-of-scale or character with the adjoining residential neighborhood, and that any potential harm had been mitigated by changes by the developer’s architectural team to the Maple Street facade. Here’s the developer’s rendering of what I think of as “lipstick” being applied to the proverbial “hog”:

I happen to think that the ZBA should pay more attention to the concerns of the “frequent critics.” Do you agree?

With All Due Respect,

Art Giacalone

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

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

Pints-in-the-Park Summer Tour 2020

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

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

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

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

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

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

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

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

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

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

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

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

With All Due Respect,

Art Giacalone

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

Legal Challenge to The Lawrence apartment project

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

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

July 9, 2020

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

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

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

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

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

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

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

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

With All Due Respect,

Art Giacalone

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

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

Our state’s highest court expressed the following warning nearly a century ago concerning the power of a zoning board of appeals [ZBA] to grant “variances” from a zoning law’s requirements: “There has been confided to the Board a delicate jurisdiction and one easily abused.”  The author of such elegant prose, Chief Judge Benjamin N. Cardozo, must have foreseen an inexplicable (but, sadly, not surprising) decision on June 17, 2020 by the City of Buffalo’s ZBA.

A “variance” is described in Buffalo’s zoning code [the Uniform Development Ordinance (UDO), informally known as the “Green Code”] as follows:

“A zoning variance allows a narrowly circumscribed means by which relief may be granted from unforeseen applications of this Ordinance that create practical difficulties or particular hardships.” [UDO, 11.3.5(A)]

As the words “narrowly circumscribed” suggest, this tool is intended as a scalpel. Unfortunately, in Buffalo’s City Hall, it is relentlessly wielded as an axe.

On June 17th, a 3 to 2 vote by Buffalo’s ZBA – with “Ayes” by Chairman Rev. James A. Lewis, Janice McKinnie and James Hornung Jr., and “Nayes” by Bernice Radle and Thomas Dearing – granted the request by Symphony Property Management LLC and Michigan-Redev LLC to circumvent eleven requirements of the Green Code to allow construction of a 133-unit apartment development known as “The Lawrence.” The controversial project straddles Michigan Avenue and Maple Street, and represents both a massive encroachment into the Fruit Belt neighborhood, and, as will be addressed below, an utter disregard of the UDO/Green Code’s vision for that community.

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The site of the Symphony’s proposed project is an assemblage of 15 parcels – 6 on Michigan Avenue facing the Buffalo Niagara Medical Campus and zoned N-2E (“Mixed-Use Edge), and 9 on Maple Street, a residential neighborhood, zoned N-2R (“Residential”). Buffalo’s Common Council unanimously approved the UDO/Green Code on December 27, 20216. On December 23rd, just four days earlier, Michigan-Redev LLC purchased 11 of the 15 parcels (plus three adjoining lots) for the astronomical price of $1.75 million. According to an April 2014 Buffalo News article, it had only cost the sellers “about $100,000 to purchase, demolish and maintain” the parcels “The Lawrence” developers chose to buy for seventeen-and-a-half times that amount.

The intent of the N-2R zoning district on Maple Street (and, the vast majority of the Fruit Belt neighborhood) is clearly set out in the Green Code’s dimensional requirements. The N-2R zone envisions a residential district comprised of moderate size residential buildings (a maximum of 3-stories high), on moderate size lots (no wider than 60’), and separated by side yards at least 3-feet wide on each side.  And, to underscore the goal of  moderately dense N-2R neighborhoods, the UDO imposes a “Residential density” maximum of one unit for each 1,250 square feet of lot area.

Michigan-Redev LLC and its co-applicant, Symphony Property Management (by its principal, Timothy Leboeuf) never made an effort to comply with the requirements of the UDO/Green Code.  And, even more disturbing, the applicants’ attorney, Marc Romanowski, Esq., commented several months ago that Symphony was encouraged by Mayor Byron Brown’s Office of Strategic Planning staff – the folks who drafted the Green Code – to ignore the limitations mandated by the zoning code and proceed with a monumentally non-compliant proposal.

Despite the “narrowly circumscribed” role of a variance, Michigan Redev LLC and Symphony asked Buffalo’s ZBA to, in effect, decimate the UDO’s N-2R requirements in order to provide relief from a fully foreseeable and self-created hardship: that is, their need to overcome the huge price Michigan Redev had voluntarily paid for the 15-lot assemblage by allowing the developer to build a large, high-density project, out-of-scale and character with the Fruit Belt neighborhood, and requiring multiple and substantial variances.  In response, although they hemmed and hawed for months, the ZBA majority, in the end, abused its “delicate jurisdiction,” and took an axe to the Green Code’s letter and intent by approving the applicant’s March 5, 2020 proposal.

Here are the relevant figures:

– Number of units/density. By right, under the UDO, Symphony could lawfully build 21 apartment units on the 9 parcels located on Maple Street, one unit for every 1,250 square feet of lot area. By comparison, the 9 closest existing homes on Maple Street have a total of 17 units on nine parcels (which translates to one unit for every 2,345 square feet of lot area). Symphony disregarded both the Green Code’s restrictions, and the existing neighborhood density, and requested, and the ZBA approved, 68 units in the N-2R zone. In other words, thanks to its unbridled use of the variance tool, the ZBA majority will allow Symphony to construct 3.23 units for each unit permitted under the Green Code.

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– Lot width/length of building. The nine Maple Street lots owned by Michigan Redev LLC total 260-feet in width, or an average of about 30’ each. The Green Code generously allows a property owner a maximum lot width of 60 feet. In other words, under the UDO, Symphony could construct, by right , 5 buildings on 5 lots ranging in widths from 48’ to 53,’ and, in doing so, not overwhelm the adjoining residential community. From the start, however, the voracious developer proposed one 254-foot long building on the 260-foot wide lot. And, the ZBA majority (Lewis, McKinnie and Hornung) generously approved Symphony’s request.

– Side yards/open space. Reflecting the traditional, medium-density character of the residential Fruit Belt streets, the Green Code requires each lot to have a 3-foot side yard, with a minimum total side yards of 15% of the lot width. The 260-foot wide lot for “The Lawrence” would require, under the existing zoning law, 52 feet of side yards.? So, what did the greedy, speculating developer request, and the UDO-trampling ZBA majority approve? An incredible total of six-feet of side yards on a 260-foot parcel.

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– Number of stories. Not one of the nine closest homes on Maple Street exceeds two stories in height. Nonetheless, the N-2R zone allows an owner to construct a building with a maximum of three stories. Despite the scale of the existing neighboring residences, and the 3-story limit in the Green Code, Symphony requested, and the ZBA majority granted, permission to build a 4-story, 254-foot wide apartment building on Maple Street.

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Although you can’t see the height of the structures, here are site plans, showing, first, the footprint of what could be built to comply with the UDO/Green Code, and then what the June 17th variances allows:

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Also, here is the architectural drawing of the Maple Street “elevation” approved for “The Lawrence,” followed by a photograph of the three-unit, two-story residence on the 85-foot wide lot directly across Maple Street from the proposed site of “The Lawrence” (the largest of the nearby houses):

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In my opinion, the decision made by Buffalo’s Zoning Board of Appeals’ majority on June 17, 2020 will a detrimental impact on the fabric of the historic Fruit Belt neighborhood. The ZBA’s misguided determination will further embolden developers to pay outrageously high prices to assemble large parcels of land – despite the restrictions codified in Buffalo’s zoning laws – with a renewed confidence that Buffalo’s City Hall will allow them to duplicate – if not surpass – Symphony’s out-of-scale and out-of-character apartment project. In doing so, the gentrification of the Fruit Belt – that is, the process of displacing current, low-income, African-American and Hispanic residents with more affluent and whiter occupants – will proceed unabated.

In 2004, our state’s highest court expressed its belief that a municipality’s zoning board is “entrusted with safeguarding the character of the neighborhood in accordance with the zoning laws.” That court has also held that lot size, density, and the scale and style of nearby homes are relevant factors when considering a proposed project’s impacts on a neighborhood’s character.

I’ll let you decide whether Buffalo’s ZBA has lived up to its fiduciary duty to the residents of the Fruit Belt neighborhood.

With All Due Respect,

Art Giacalone

P.S.  Here is a copy of my most recent letter in opposition to the proposed variance application, submitted to the ZBA – by way of the Office of Strategic Planning – on June 15, 2020: The Lawrence – Giacalone 06-15-20 ltr to ZBA.

P.P.S.  When reading the post following its publication, I noticed that I had forgotten to mention the arguments, repeated ad nauseum by Symphony’s lawyer, and embraced in city hall’s staff report, on why the massive scale of the building, and flagrant disregard of the Green Code’s lot width, side-yard, density, and height restrictions, would barely be noticed by nearby residents, and would not adversely impact the existing neighborhood character:  (1) the revised plan (see the “elevation” drawing above) “break[s] up the building design” and “mimics” 3 or 4 building structures”; and, (2) two 25-foot by 20-foot recesses in the Maple Street façade – characterized by Symphony as “patios” – “create 50’ of open space within the façade, greatly minimizing the impact of a loss of side yard separation.”  In fact, UDO requires side yards to be actual open spaces, extending from the front yard to the rear yard line.  As proposed, the patios extend about a quarter of the depth of the lot, and then meet a 4-story wall and the rest of the apartment building.  The following landscape plan gives you an idea of just how minimal the patio “recesses” actual are [I’ve highlighted the patios in yellow]:

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