Elmwood Village

Three minutes just isn’t enough

Posted by Arthur J. Giacalone on December 5, 2016

Posted in: Development, Elmwood Village, SEQRA. Leave a comment

The City of Buffalo’s Planning Board conducted a public hearing late this afternoon – Dec. 5, 2016 – concerning the Draft Environmental Impact Statement [DEIS] and design and site application for Chason Affinity’s proposed “1111 Elmwood” mixed-use project at the southeast corner of Elmwood and Forest avenues at the northern boundary of one of Buffalo’s most popular and desirable neighborhoods, the Elmwood Village. The room was hot and overcrowded, with residents for and against the 5-story, 166,000-square-foot building spilling out into the adjoining hallway.

First we heard from the developer’s lawyer. Then the project’s architect, an amiable chap, who felt obliged to spend an inordinate amount of time telling the assembled – with the aid of a PowerPoint presentation – just how much worse the earlier iterations of the developer’s plans were. [You can almost be certain that a proposed development is terribly unsuited for a neighborhood if its architect or lawyer is telling tell you how much worse the developer’s original plans were.] Then the developer spoke. When it was finally the public’s turn, we were told that we had three minutes each to provide our comments regarding a 160-page DEIS, the dozen or so appendices that accompanied it, and the project’s design and site plan.

Well, anyone who has visited this blog in the past knows that three minutes just isn’t enough for me to share my thoughts. Fortunately, I had a 14-page letter (with exhibits attached) to hand to the Planning Board chair. What is important for the public to know is that written comments can be submitted to the City Planning Board – at Buffalo City Hall, 65 Niagara Square, Room 901, Buffalo, NY 14202-3318 – through December 19, 2016. State law mandates that the Planning Board, as the “lead agency” conducting the environmental review, must respond in the Final EIS to “all substantive comments” it receives regarding the Draft EIS. If you are interested in my thoughts, READ ON:

December 5, 2016

Re: Chason Affinity’s proposed project at 1111 Elmwood Ave.

Dear City Planning Board:

I am providing these comments to you on behalf of my client, Sandra Girage, the owner of 611 Forest Avenue. Her two-family residence is located immediately adjacent to Chason Affinity’s property at 607 Forest Avenue. My comments will focus primarily on the inaccuracies and omissions in the project sponsor’s Draft Environmental Impact Statement [DEIS]:

FIRST, as an attorney who has been reviewing DEIS’s for over a quarter-century, I knew that the DEIS “accepted” as adequate for public review by this board would be remarkably one-sided and subjective when I read the following statement in the DEIS Introduction: “The FEAF [Full Environmental Assessment From] does not identify any potentially significant environmental impacts associated with the project that would mandate the preparation of an EIS under SEQRA.” [DEIS, p. 14] That statement should have been recognized as a “red flag” mandating a critical assessment of the scope, content, and adequacy of the DEIS prior to its acceptance.

SECOND, the DEIS states that, “The Project aims to transform the Site into one more consistent with prevailing Elmwood Village design standards… [EVDS]” This assertion inaccurately suggests that the EVDS criteria (mixed-use buildings constructed at the sidewalk, etc.) applies to every parcel within its boundaries. That claim is false. As clearly stated at Section 511-155(b)(1) of the City’s zoning ordinance: “The Elmwood Village Design Standards District shall include all commercial properties abutting Elmwood Avenue between Forest Avenue and North Street,” as well as “all commercial properties abutting” specified east-west spurs, including Forest between Richmond and Granger. In other words, the eight residential properties included within Affinity’s twelve parcels – six on Elmwood, and two around the corner on Forest – are NOT included in the EVDS, and, therefore, are not inconsistent with the expressed standards. [See EVDSD-section-511-155-amended-06-11.]

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THIRD, the supposed “Need” for the project lacks factual support, and is full of ironic assertions and mischaracterizations of the Elmwood Village and the City of Buffalo. [DEIS, pp. 14-15] Here are two examples:

*** According to the DEIS, “Like many other cities across the United States, the City of Buffalo has a relatively low supply of housing for newcomers who wish to remain in the City.” No data is provided to support this assertion. And it would probably surprise the head of the Mayor’s Office of Strategic Planning, Brendan Mehaffy. A year ago, during a panel discussion at Medaille College entitled “Is Buffalo really a housing boom town?”, Brendan gushed that, yes, indeed, Buffalo was experiencing a “housing boom” with 3,900 new units having been added since 2012.

*** In the words of the DEIS’ authors, the Elmwood Village “is increasingly desirable due to its intact urban fabric, recognizable thriving commercial district and proximity to high-quality public space.” Ironically, the proposed 166,000-square-foot project would rip apart the “intact urban fabric” by demolishing a dozen century-old buildings that are all “contributing” to the recently listed Elmwood Village Historic District (East)” on the National Register of Historic Places. And, to add insult to injury, Affinity wants to replace the “recognizable thriving business district” with an out-of-scale structure that is the antithesis of the “bohemian atmosphere” praised in a 2009 study prepared by Chason Affinity’s consultant, Pinnacle Advisory Group:

… The existing development in the immediate and surrounding neighborhood consists primarily of single family homes and free-standing homes that have been converted into apartment rentals … [T]he bohemian atmosphere and the numerous independent boutique shops and restaurants have helped to make the area around Elmwood and Forest [avenues] one of the most desirable residential neighborhoods in Buffalo. ” [Emphasis added.]

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FOURTH, proponents of the existing character of the Elmwood Village will not be fooled by a five-story, 166,000-square-foot building that supposedly has the “appearance of multiple structures” and will “’read’ as a three-story building” [as a result of the 4^th and 5^th stories being “stepped back”]. The proposed project will be demonstrably out-of-scale and character, and have a much greater density, than the existing Elmwood Village as a whole, and, more importantly for the purposes of SEQRA, the neighborhood immediately surrounding the Chason Affinity project. This board must not be distracted by comparison between the proposed 5-story structure and buildings in other neighborhoods (and, even other cities!), especially if those buildings have a much smaller footprint than the proposed 1111 Elmwood Ave. project. On behalf of my client, I ask you to consider the property information available at the City of Buffalo’s website concerning the existing neighborhood, which demonstrates the following facts:

(a) Affinity’s project is grossly inconsistent with the scale and character of the 12 primary structures it would replace. Eleven of the twelve existing structures on the 12 parcels comprising the Chason Affinity project – that is, 1091 through 1121 Elmwood Ave., and 605 and 607 Forest Ave. – are two- and two-and-a-half story structures on single, moderate-size lots. The twelfth structure – at 1111 Elmwood Avenue – is a 1.3-story single-family residence. The twelve structures have a total gross floor area of 34,062 square feet, 20.5% of the total gross floor area of the proposed project, 166,000 square feet. [Attached as Exhibit A is pertinent “Property Information” material re 1091 through 1121 Elmwood Ave., and 605 and 607 Forest Ave.]

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(b) Affinity’s project is grossly inconsistent with the scale and character of the ten adjacent residences on Forest Ave. and Granger Place. Nine of the ten structures on Granger Place [64 through 36 Granger Pl.] and Forest Avenue [611 Forest Ave.] abutting or immediately adjacent to the Chason Affinity property are 2-family residences, and the tenth structure is a three-family residence. The ten parcels are all developed with two- and two-and-a-half story structures on single, moderate-size lots, setback from the public right-of-way by front lawns, and have a total gross floor area of 25,105 square feet, 15.1% of the total gross floor area of the proposed project, 166,000 square feet. [Attached as Exhibit B is pertinent “Property Information” material re 64 through 36 Granger Pl. and 611 Forest Avenue (Sandra Girage’s property.]

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(c) Affinity’s project is grossly inconsistent with the scale of the commercial buildings directly across street on the west side of Elmwood Avenue. The six buildings on the west side of Elmwood Ave. directly across Elmwood from the proposed Chason project – that is, 1122, 1116, 1108, 1104, 1096 and 1094 Elmwood – are all 2-stories in height, and have a combined gross floor area of 35,224 square feet, 21.2% of the total gross floor area of the proposed project, 166,000 square feet. [Attached as Exhibit C is pertinent “Property Information” material re 1094 through 1122 Elmwood Ave.]

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(d) Affinity’s project is grossly inconsistent with the scale and character of the single-family residences on the east side of Elmwood Ave. immediately north of the corner of Elmwood & Forest. Although you would never know it from reading the DEIS, but starting barely 100 feet from the northeast corner of Elmwood and Forest, and extending along the east side of Elmwood for 18 parcels, are eighteen single-family residences. Ten of the twelve residences closest to the Chason Affinity project are 2-story structures, one is a 1.5-story home, and one a 2.5-story home. These dozen parcels are zoned R1, are moderate in size, and the houses are setback from the public right-of-way by front lawns. The total gross floor area of these 12 residences is 25,167 square feet, or 15.2% of the total gross floor area of the proposed project, 166,000 square feet. [Attached as Exhibit D is pertinent “Property Information” material re 1143 through 1187 Elmwood Ave.]

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The stunning contrast between the proposed project and the existing neighborhood and community character and scale constitutes a “significant adverse environmental impact.” As a result, this body, as lead agency, is obligated under SEQRA to “incorporate as conditions” to any decision approving the project “mitigative measures” that will avoid or minimize adverse impacts “to the maximum extent practicable.” [6 NYCRR 617.9(b)(7)] More specifically, SEQRA expressly provides all lead agencies with the authority to impose substantive conditions upon an action that are deemed “practicable and reasonably related” to the identified adverse impacts. [6 NYCRR 617.3(b)] In this instance, that would mean strictly limiting the height, square-footage, and footprint of the proposed project.

FIFTH, the DEIS misleads this board and the public regarding the character of the adjoining neighborhood through what it omits. The DEIS appendices include a blue-starred map of properties on Elmwood Avenue with “Residential Only” usage. The project sponsor omits, however, a similar blue-starred map reflecting the fact that each and every property on the Forest Ave. block between Elmwood and Granger adjacent to the project site – including the pair of two-family residences at 605 and 607 Forest that Chason Affinity proposes to demolish – as well as the property directly across Forest from 605 and 607 Forest at 2 Penhurst Park, and each and every Granger Place property to the east of the proposed multi-use project, are utilized solely for residential purposes. Here’s what such a map would look like:

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SIXTH, the fact that a dozen “Residential Only” properties – including one single-family, ten two-family, and one three-family houses – adjoin the project site underscores the disservice the DEIS performs when it downplays the adverse impacts that would result during the projected 18-month construction period. The DEIS acknowledges that “[c]onstruction activity noises are expected to result from delivery of materials, installation of materials, and operation of heavy machinery and equipment,” [DEIS, 11] and that, in addition to noise, construction will create adverse air quality, parking and visual impacts [DEIS, p. 58]. Nonetheless, it minimizes the impacts by characterizing them as “short term” or, as in the case of dust, “a temporary nuisance.” [DEIS p. 53] That temporary nuisance, daily from 7AM to 7PM, will feel like an eternity if you are Sandra Girage’s tenants at 611 Forest Ave., or the octogenarian widow who lives at 2 Penhurst Park, or any of the adjacent Granger Place homeowners and tenants.

SEVENTH, the SEQRA regulations state that a DEIS must include “a description of the mitigation measures.” [6 NYCRR 617.9(b)(5)(iv)] Given this mandate, it is wholly inadequate for the DEIS to state that, “A traffic and vehicle access plan will be prepared and used for worker and delivery access to the Site,” and not provide details of the plan. [DEIS, pp. 11, 53] This is especially true given the proximity of nearby residences, the busy nature of the Elmwood/Forest intersection, the existing sparsity of on-street parking, and the admission in the DEIS that, “Large volumes of construction related vehicles are expected Monday through Friday” during the 18-month construction period.

EIGHTH, in an attempt to minimize the historic significance of the dozen primary structures proposed for demolition by Affinity – despite their contributions to the newly recognized Elmwood Village Historic District (East) – the author of the DEIS has the nerve to make the following assertions: “some have been affected by the removal of porches and other building alterations,” and “the Project is expected to enhance the appearance of the existing deteriorating buildings at the corner of Elmwood and Forest Avenues.” What makes these statements so brazen are the following facts: Affinity has owned all but one of these properties (1091 Elmwood) since 2009, and has continued collecting rents from retail and residential tenants throughout much of this period. It is Affinity that is responsible for the current condition of the buildings they want to demolish. Also, as these before-and-after photos (taken subsequent to Chason Affinity’s purchase of the properties, and prior to the property’s inclusion on the National Register of Historic Places) reflect, it was Affinity that decided to remove – rather than repair – the porches at 1113 Elmwood Avenue:

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It may be inconvenient for the project sponsor, but this board, as the SEQRA lead agency, must keep firmly in mind the words contained in the two April 25, 2016 letters sent to Chason Affinity by the State’s Deputy Commissioner for Historic Preservation, Ruth L. Pierpont (included in Appendix D of the DEIS) regarding ten properties the project sponsor would like to demolish on and near the corner of Elmwood and Forest avenues: “… [T]he National Register [of Historic Places] is the nation’s official list of properties worthy of preservation. Listing on the National Register recognizes the importance of these properties to the history of our country…” The Deputy Commissioner’s statement is in stark contrast to the false assertion at page 15 of the DEIS: “None of these structures have any reported historical or architectural significance.”

NINTH, the DEIS contains no data or analysis to support its conclusion that existing infrastructure “contains excess capacity for additional development.” [DEIS, p. 58] The adjacent residential community has questioned the adequacy of the existing sanitary sewer system for many years. SEQRA and fairness to the existing neighborhood mandate a thorough review of this potential area of environmental concern.

TENTH, the relevant “scale” and comparisons for this board to keep in mind when assessing the proposed project’s height and impacts on the existing neighborhood character and aesthetics are found at in the EVDS, not in Appendix G (Illustrative Scale Design) of the DEIS:

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As stated at Section 511-155(G)(1)(a) of Buffalo’s zoning code, the predominant height of buildings in the Elmwood Village Design District “is between two and 2 ½ stories,” and “new buildings shall respect the predominant height of buildings within the area.” The fact that the EVDS provision states that “buildings of more than five stories” are inappropriate does NOT mean that Chason Affinity has the right under the existing zoning code to construct a five-story building. This board must also ask the question: Does a five-story structure “respect the predominant height of buildings” in the area? It is my client’s opinion that it does not. If allowed to proceed, the proposed 5-story “1111 Elmwood” project would be between 2.5- and 3-stories taller than the closest building on Elmwood Ave. (Pano’s restaurant at 1081 Elmwood), and on Forest Ave. (Sandra Girage’s house at 611 Forest Ave.), and each of the residences on Granger Place immediately to the rear of the proposed 166,000-square-foot development.

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ELEVENTH, the “Alternatives Analysis” in the DEIS [DEIS, pp. 55-56] fails miserably in complying with either the letter or spirit of the “reasonable alternatives” analysis mandated by the SEQRA regulations:

617.9 Preparation and content of environmental impact statements

(b) Environmental impact statement content.

…

(5) The format of the draft EIS may be flexible; however, all draft EISs must include the following elements:

(v) a description and evaluation of the range of reasonable alternatives to the action that are feasible, considering the objectives and capabilities of the project sponsor. The description and evaluation of each alternative should be at a level of detail sufficient to permit a comparative assessment of the alternatives discussed. The range of alternatives must include the no action alternative. The no action alternative discussion should evaluate the adverse or beneficial site changes that are likely to occur in the reasonably foreseeable future, in the absence of the proposed action. The range of alternatives may also include, as appropriate, alternative: (a) sites; (b) technology; (c) scale or magnitude; (d) design; (e) timing; (f) use; and (g) types of action. For private project sponsors, any alternative for which no discretionary approvals are needed may be described. Site alternatives may be limited to parcels owned by, or under option to, a private project sponsor;

…

For example, the SEQRA regulations require that, “The description and evaluation of each alternative should be at a level of detail sufficient to permit a comparative assessment of the alternatives discussed.” Rather than meet this standard, the DEIS’ “Alternatives Analysis” provides no meaningful data or detailed evaluation of any kind. Instead we are given clichés about how wonderful the preferred alternative is. The discussion of the “No Action Alternative” repeats the same misleading assertion contained in the DEIS’ discussion of the project’s need and purpose, that is, “that the current structures do not conform to the existing Elmwood Village Design Standards, due to their significant setback form the street.” In fact, the EVDS standards only apply to “commercial properties,” and, therefore, the eight “residential only” properties owned by Chason Affinity are not out-of-compliance. Additionally, the project sponsor has failed to analyze the types of alternatives which would offer a meaningful comparison with the proposed action: a significantly shorter building with a substantially smaller footprint, or an “alternative for which no discretionary approvals are needed” (that is, no rezoning and no variances).

TWELTH, the DEIS is correct when it states that “the Elmwood Village is a thriving neighborhood,” but its claim that the thriving nature of this neighborhood is due to its “evolving mix of architectural styles and building scales” is self-serving and inaccurate. My client believes that the former Director of Zoning for the City of Rochester, Arthur J. Ientilucci, AICP, accurately explained the reasons for the success and attractiveness of the Elmwood Village when he identified the balance the Elmwood Village achieved over the years “between residential and non-residential use both in terms of density, concentration and scale.” As Mr. Ientilucci stated in 2013:

…

“Elmwood Village … is a distinct, recognizable urban district characterized by a mix of residential, boutique and small scale commercial uses… This is an urban neighborhood and not simply a commercial area bounded by residential areas.

Elmwood Village is a thriving mixed use urban neighborhood with many amenities that are attractive to urban dwellers. … It is a sustainable, intact neighborhood which has been built on certain characteristics and amenities, not the least of which is a healthy diverse residential population and housing stock. It has a high degree of walkability, a factor important to home buyers and dwellers in the emerging, often discussed ‘return to city living’.

A good deal of the Elmwood Village’s character is derived from the intermingling of small scale commercial uses and a variety of residential building styles affording a wide range of choice for its residents. The harmonious scale, older homes, and connectedness of buildings and uses throughout the area is a significant and attractive attribute. The district appears to have achieved a balance between residential and non- residential use both in terms of density, concentration and scale. This balance appears to have accrued from the residential character of the neighborhood, the scale of its non-residential structures in relation to nearby residential properties, and zoning code limitations on the intensity and scale of commercial use…”

THIRTEENTH, despite efforts in the DEIS to cherry-pick “smart growth” terminology and to ignore goals and principles that weigh against Chason Affinity’s plans, a close look at the City of Buffalo’s Comprehensive Plan – known as “Queen City in the 21^st Century” – reveals significant inconsistencies between the proposed “1111 Elmwood” project and Buffalo’s comprehensive plan. Here are several examples:

(a) The DEIS disregards a truism recognized by the Comprehensive Plan: “Conditions in Buffalo neighborhoods vary widely”:

“… Some are in good shape, attractive as living environments, and competitive as housing markets. Some are in desperate condition, with many dilapidated structures, high vacancy rates, low home-ownership rates, and a proliferation of vacant lots. The rest are somewhere in between…” [Comp Plan, p. 85]

The use of “demolition, rehabilitation and new construction to manage housing stock” is the approach the Comprehensive Plan envisions for neighborhoods in desperate condition. It is not what is proposed for the southeast corner of Elmwood and Forest avenues. While portions of Elmwood Ave. – for example, south of Summer Street – may require revitalization, the planning process utilized by the City of Buffalo in preparing the Comprehensive Plan concluded that the entire east side of Elmwood Ave., extending from the Scajaquada (Route 98) south to W. Utica, only requires actions necessary to “reinforce” the existing conditions, not to “revitalize” or “rebuild” the neighborhood. Not surprisingly, Elmwood Avenue is characterized as a “flourishing mixed-use commercial corridor with small specialty shops and boutiques, unique restaurants, bars and coffee houses,” and “one of the key communities for marketing the City of Buffalo to the region.” [Attached hereto as Exhibit E is a two-page excerpt from the Draft Comprehensive Plan regarding the “Elmwood Planning Community.”] [Click here: elmwood-draft-comprehensive-plan.]

(b) As the quote found at p. 23 of the DEIS indicates, the concept of “infill development” is meant as an approach for “reclaiming marginal and abandoned areas.” Demolishing 12 century-old buildings that reflect the history of a neighborhood, and replacing them with a huge structure different in character and scale from its surroundings, is neither “infill development,” nor smart growth.

(c) Chason Affinity’s proposed project violates two guiding principle “specific to the design of good neighborhoods” expressed in the Comprehensive Plan: “Individual architectural projects should be seamlessly linked to their surroundings.” And, “Architecture and landscape design should grow from local climate, topography, history, and building practice.” [Comp Plan, p. 97, 98] The project sponsor’s preferred alternative does neither.

(d) Chason Affinity’s plan to demolish a dozen structures – despite their contributions to the newly recognized Elmwood Village Historic District (East) – violates another principle “specific to the design of good neighborhoods” identified in the Comprehensive Plan: “Preservation and renewal of historic buildings, districts, and landscapes affirm the continuity and evolution of urban society.” [Comp Plan, p. 98] According to the Comprehensive Plan, preservation of the city’s historic resources – including historic districts – is important for a variety of reasons: it helps sustain the “web of urbanism”; it supports the community’s economic development goals by attracting tourists; and, it contributes to the quality of life that draws people and capital. [Id.]

(e) The Comprehensive Plan specifically calls for “a moratorium on demolitions other than those necessary for the preservation of public health.” [Comp Plan, p. 100]

(f) The density Chason Affinity proposes for its project – 45 to 50 units on a 1.1 acre site – far exceeds the densities envisioned in Buffalo’s Comprehensive Plan. [Comp Plan, p. 106] For example:

* A “mixed-use neighborhood commercial” district would allow mixed residential use with 8 to 16 units per acre, with accessory ground floor non-residential development.

* A “mixed use downtown district (outside of the Central Business District) would allow mixed residential use with 16 to 24 units per acre, with non-residential development.

* Only “mixed use downtown Central Business District” would allow residential use with 24 units or more per acre.

FOURTEENTH, the traffic analysis contained in the DEIS fails to provide an accurate assessment of the real-life impact on the adjacent community of the increase in traffic that would accompany the Chason Affinity project:

(a) By focusing on AM and PM “Peak Hour” trip generation, and omitting an estimate of the total number of trips the project will be generating on a daily basis, the DEIS understates the impact on nearby residents, pedestrians, bicyclists and drivers. My review of the ITE Trip Generation data reveals that, on average, the AM Peak Hour trips from a residential condominium/townhouse development represents only 7 or 8% of the total number of vehicle trips generated by the development throughout a typical weekday. Likewise, the PM Peak Hour figure reflects less than 10% of the total trips generated daily by the average condo/townhouse project. If the trip estimates provided in the DEIS traffic analysis are accurate, the proposed 45 to 50 units at “1111 Elmwood” would generate approximately 400 vehicle trips per day pulling into or out of traffic on already-busy Elmwood or Forest avenue. Similarly, the AM and PM Peak Hour figures for a Specialty Retail Center equal somewhere between 6 and 8% of the traffic generated throughout the entire day. Again, if the trip estimates provided in the DEIS traffic analysis are accurate, the three 2,500-square-foot commercial shops at 1111 Elmwood would add approximately 300 vehicle trips per day to existing traffic.

(b) Despite the fact that the project sponsor’s FEAF states that “During Operations” the proposed development “hours of operation” would be from 7 AM to 7 PM throughout the entire week, Chason Affinity’s traffic consultant has chosen not to include AM Peak Hour trips in its projection of estimated trips for the three specialty retail stores. My review of the ITE Trip Generation data shows that, on average, specialty retail centers generate a larger amount of traffic during the AM Peak Hour than during the PM Peak Hour.

(c) Although the project sponsor’s traffic analysis includes its estimate of the impact of the proposed project on the adjoining commercial property, Pano’s Restaurant, it does not provide an estimate on how the Forest Avenue entrance/exit – which will be accessed by 100% of commercial traffic using the on-site parking facility, and 50% of the residential traffic – will impact vehicles entering or existing either the residential driveway at 2 Penhurst, or the gas station/convenience store driveway at 1131 Elmwood. It is inconceivable that the additional traffic entering and exiting the proposed project will not impact safety and convenience for drivers using existing driveways in such close proximity.

FIFTEENTH, although it claims that the proposed project is “intended to meet the spirit and intent” of the proposed Green Code, the DEIS has conveniently failed to mention an important way in which the proposed project does not comply with the proposed Green Code: In addition to height limitation of three stories, the proposed Green Code, to maintain the character of the Elmwood Village, states the following: “No more than two lots in the Elmwood Village, existing at the time of the adoption of this Ordinance, may be combined for the purposes of new construction in an N-2C or N-2E zone.”

FOR THE ABOVE REASONS, my client, Sandra Girage, respectfully asks this board to take the following steps:

A. Exercise the authority given to you by the SEQRA regulations [6 NYCRR 617.9(a)(7)] and require the project sponsor to submit a Supplemental Environmental Impact Statement [SEIS] that addresses, at a minimum, the following issues not addressed or inadequately addressed in the DEIS:

(i) The impact of the proposed 5-story, 166,000-square-foot project on the character of the single-family residences on the east side of Elmwood Avenue north of Forest Avenue.

(ii) A detailed description of the “traffic and vehicle access plan will be prepared and used for worker and delivery access to the Site,” addressing how such plans would address the adverse impact of an 18-month construction schedule on nearby residences, the Elmwood/Forest intersection, the existing sparsity of on-street parking, and nearby businesses given “large volumes of construction related vehicles [that] are expected Monday through Friday” during the 18-month construction period.

(iii) Objective data and analysis to show whether or not the existing infrastructure, and, in particular, the existing sanitary sewer system contains adequate capacity to handle the proposed project.

(iv) An “Alternatives Analysis” that complies with the requirements of the SEQRA regulation [6 NYCRR 617.9(b)(5)(v)] by providing a description and evaluation of each alternative “at a level of detail sufficient to permit a comparative assessment of the alternatives discussed.” The alternatives described and evaluated, in addition to the “no action” alternative, should include a significantly shorter building with a substantially smaller footprint, and an alternative for which no rezoning or variances are needed.

(v) An expanded traffic analysis that includes trip generation figures on a daily basis (weekday, Saturday and Sunday), in addition to AM and PM peak hours; trip generation during AM peak hours for the three 2,500-square-foot retail stores; and, the impact of the Forest Avenue entrance/exit on the residence at 2 Penhurst and gas station/convenience store at 1131 Elmwood Ave.

B. Utilize the 45-day period provided by the SEQRA regulations between the close of the public hearing and the preparation of the Final EIS [6 NYCRR 617.9(a)(5)] to provide meaningful responses to all substantive comments received regarding the DEIS.

C. If, following issuance of the Final EIS and SEQRA written findings statement, this board determines that it will approve Chason Affinity’s design and site plan application, fully comply with a lead agency’s obligation under SEQRA to “incorporate as conditions” to any decision approving the project “mitigative measures” that will avoid or minimize adverse impacts “to the maximum extent practicable.” [6 NYCRR 617.9(b)(7)] More specifically, exercise your authority under SEQRA [6 NYCRR 617.3(b)] to limit the height, square-footage, and footprint of the proposed project so as to avoid or minimize the project’s adverse impacts on the existing neighborhood and community character, and the quality of life of the nearby residents.

Thank you.

Respectfully yours,

Arthur J. Giacalone

Enc.

Chason Affinity’s DEIS for “1111 Elmwood” does not tell the real story

Posted by Arthur J. Giacalone on November 15, 2016

Posted in: Elmwood Village, SEQRA. Leave a comment

Here are my initial thoughts on the Draft Environmental Impact Statement [DEIS] for the “Mixed-Use Condominium/Retail Development” proposed for the southeast corner of Elmwood and Forest avenues.

First, full disclosure: I spent seven years representing six families on Granger Place and Forest Avenue in opposition to Chason Affinity’s prior plans for what the developer calls “the Gateway to the Elmwood Village.” In 2012, I filed complaints with the City of Buffalo’s permits and inspections office concerning chronic code violations at Affinity’s Elmwood Avenue properties, and I also wrote a letter-to-the-editor questioning the wisdom of Chason Affinity’s proposal to reuse the former Millard Fillmore hospital site as a veterinarian teaching hospital. In response, the Affinity principals had their lawyers obtain an unlawful “gag order” against me from a compliant, now-disgraced State Judge. [For details, see my very first post at this blog in January 2014. Also, here’s the letter-to-the-editor that got the Affinity folks so riled up, and a few photos of the condition of Affinity’s Elmwood Ave. properties three years after they had purchased eleven parcels for nearly $2 million.]

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My comments concerning the Affinity DEIS – and the developer’s proposed five-story, 166,000-square-foot project – are informed by my love for the Elmwood Village (where I lived for years as a young adult), the knowledge I obtained while representing the Granger Place and Forest Avenue families, and a quarter century representing families in zoning and environmental review matters.

Here are my initial observations (which I hope to supplement as time permits):

FIRST, the supposed “Need” for the project lacks factual support, and is overflowing with ironic assertions and mischaracterizations of the Elmwood Village and the City’s zoning laws. Here are but three examples:

*** According to the DEIS, “Like many other cities across the United States, the City of Buffalo has a relatively low supply of housing for newcomers who wish to remain in the City.” This assertion would probably surprise the head of the Mayor’s Office of Strategic Planning, Brendan Mehaffy. A year ago, during a panel discussion at Medaille College, Brendan gushed that, yes, indeed, Buffalo was experiencing a “housing boom” with 3,900 new units having been added since 2012.

*** In the words of the DEIS’ authors, the Elmwood Village “is increasingly desirable due to its intact urban fabric, recognizable thriving commercial district and proximity to high-quality public space.” Ironically, the proposed 166,000-square-foot project would rip apart the “intact urban fabric” by demolishing a dozen century-old buildings that are all “contributing” to the recently listed Elmwood Village Historic District (East)” on the National Register of Historic Places. And, to add insult to injury, Affinity wants to replace the “recognizable thriving business district” with an out-of-scale structure that is the antithesis of the “bohemian atmosphere” described in a 2009 study prepared by Affinity’s consultant, Pinnacle Advisory Group:

“… The existing development in the immediate and surrounding neighborhood consists primarily of single family homes and free-standing homes that have been converted into apartment rentals … [T]he bohemian atmosphere and the numerous independent boutique shops and restaurants have helped to make the area around Elmwood and Forest [avenues] one of the most desirable residential neighborhoods in Buffalo. ” [Emphasis added.]

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*** The DEIS states that, “The Project aims to transform the Site into one more consistent with prevailing Elmwood Village design standards…[EVDS]” This assertion – intentionally or otherwise – inaccurately suggests that the EVDS criteria (mixed-use buildings constructed at the sidewalk, etc.) applies to every parcel within its boundaries. That claim is false. As clearly stated at Section 511-155(b)(1) of the City’s zoning ordinance: “The Elmwood Village Design Standards District shall include all commercial properties abutting Elmwood Avenue between Forest Avenue and North Street,” as well as “all commercial properties abutting” specified east-west spurs, including Forest between Richmond and Granger. In other words, the eight residential properties included within Affinity’s twelve parcels – six on Elmwood, and two around the corner on Forest – are NOT included in the EVDS, and, therefore, are not inconsistent with the expressed standards. [See EVDSD-section-511-155-amended-06-11.]

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SECOND, proponents of the existing character of the Elmwood Village will not be fooled by a five-story, 166,000-square-foot building that supposedly has the “appearance of multiple structures” and will “’read’ as a three-story building” [as a result of the 4^th and 5^th stories being “stepped back”]. The proposed project will be demonstrably out-of-scale and character, and have a much greater density, than the existing Elmwood Village as a whole, and, more importantly for the purposes of SEQRA, the neighborhood immediately surrounding the Chason Affinity project. More specifically, the property information available at the City of Buffalo’s website shows the following:

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(c) Affinity’s project is grossly inconsistent with the scale of the commercial buildings directly across street on the west side of Elmwood Avenue. The five buildings on the west side of Elmwood Ave. directly across Elmwood from the proposed Chason project – that is, 1122, 1116, 1108, 1104 and 1096 – are all 2-stories in height, and have a combined gross floor area of 32,060 square feet, 19.3% of the total gross floor area of the proposed project, 166,000 square feet.

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(d) Affinity’s project is grossly inconsistent with the scale and character of the single-family residences on the east side of Elmwood Ave. immediately north of the corner of Elmwood & Forest. The block on the east side of Elmwood Avenue immediately north of Forest Avenue consists, first, of a one-story gas station/convenience store, and then eighteen homes, each of which is classified by the City of Buffalo as a single-family residence. Ten of the twelve residences closest to the Chason Affinity project are 2-story structures, one is a 1.5-story home, and one a 2-story home. These twelve parcels are moderate in size, and the houses are setback from the public right-of-way by front lawns. The total gross floor area of these residences is 25,167 square feet, or 15.2% of the total gross floor area of the proposed project, 166,000 square feet.

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THIRD, in an attempt to minimize the historic significance of the dozen primary structures proposed for demolition by Affinity – despite their contributions to the newly recognized Elmwood Village Historic District (East) – the DEIS has the nerve to make the following assertions: “some have been affected by the removal of porches and other building alterations,” and “the Project is expected to enhance the appearance of the existing deteriorating buildings at the corner of Elmwood and Forest Avenues.” What makes these statements so brazen are the following facts: Affinity has owned all but one of these properties (1091 Elmwood) since 2009, and has continued collecting rents from retail and residential tenants throughout much of this timeframe. It is Affinity that is responsible for the current condition of the buildings they want to demolish. As mentioned above, three- years into its tenure as owners of these structures, Affinity faced a battery of code violation complaints. [See the City’s official notices-of-code-violations-in-2012-at-affinitys-elmwood-ave-properties.] Also, as these before-and-after photos reflect, it was Affinity that decided to remove – rather than repair – the porches at 1113 Elmwood Avenue:

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I hope to add to these comments in the near future.

With All Due Respect,

Art Giacalone

“Little Summer Street” – An Antidote to “23-Story-Tower Syndrome”

Posted by Arthur J. Giacalone on July 31, 2016

Posted in: City of Buffalo, Elmwood Village, Gerald A. Buchheit Jr.. Leave a comment

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With All Due Admiration,

Art Giacalone

P.S. If you are curious, click here for Property Information for Little Summer St. parcels.

Moratorium needed to save Elmwood Village

Posted by Arthur J. Giacalone on February 25, 2016

Posted in: Byron Brown, City of Buffalo, Development, Elmwood Village, Green Code. 11 Comments

Buffalo’s Common Council must move quickly to temporarily halt development in and around Elmwood Avenue to preserve the historic fabric of this unique and livable neighborhood.

The Elmwood Village is under assault on two major fronts.

Mayor Byron W. Brown’s Office of Strategic Planning has authored a new zoning and land use ordinance – the “Green Code” – that proposes elimination of many of the zoning provisions that helped the Elmwood Village earn its 2007 designation as one of the American Planning Association’s “10 Great Neighborhoods.” [See APA – Elmwood Village award 2007.]

[Click here for a quick summary, Green Code Threats to Elmwood Village 02-24-16.]

And a bevy of Western New York developers – including, among others, Carl Paladino’s Ellicott Development Company, Chason Affinity, the Frizlen Group, and Ciminelli Real Estate Corp. – has rushed into the Elmwood Village with proposals that fail to capture the scale, aesthetics, history, and architecture of Buffalo’s nationally recognized asset. The historic fabric and extraordinary character of Elmwood Avenue will be irreparably compromised if this unique neighborhood continues to be tarnished by projects such as these:

905 Elmwood Avenue:

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Southeast Corner of Elmwood and Forest Avenue:

Affinity schematic 10-16-2010

766 Elmwood Avenue:

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It is time for Buffalo’s Common Council to demonstrate its leadership. The city’s legislative body has the power to enact a moratorium that would preserve the status quo within the boundaries of the Elmwood Village while the process of reviewing and, hopefully, modifying the proposed Green Code moves forward.

There will almost certainly be reluctance among Common Council members to take what some will view as a dramatic – if not drastic – move. And our legislators are unlikely to receive constructive assistance from the Corporation Counsel’s office – the city’s law department – where attorneys hold their jobs at Mayor Brown’s pleasure. So I will share with the Common Council – and, in particular, Messrs. Pridgen, Rivera and Feroleto – the following principles [additionally, here is a memorandum addressing FAQ re Moratoriums]:

First, New York’s courts have repeatedly upheld moratorium resolutions as “valid stopgap or interim zoning measures” when they temporarily halt development while a municipality considers comprehensive zoning changes (such as the proposed Green Code) or a new comprehensive plan.

[See, for example, Laurel Realty v. Planning Bd. of Town of Kent, 40 AD3d 85 (2^nd Dept. 2007); 119 Development Associates v. Village of Irvington, 171 AD2d 656 (2^nd Dept. 1991); McDonald’s Corp. v. Village of Elmsford, 156 AD2d 687 (2^nd Dept. 1989); Matter of Charles v. Diamond, 41 NY2d 318 (1977).]

Second, the fact that one or more developer may have applied for approval of a project prior to enactment of the moratorium neither invalidates the moratorium, nor makes the moratorium inapplicable to the pre-filed application, so long as the city does not act in “bad faith” and unduly delay acting on the application.

[Note: The courts have repeatedly upheld moratoriums enacted after a municipality has received an application. For example, McDonald’s Corp. v. Village of Elmsford, 156 AD2d 687 (2^nd Dept. 1989); West Lane Properties v. Lombardi, 139 AD2d 748 (2^nd Dept. 1988); Dune Associates v. Anderson, 119 AD2d 574 (2^nd Dept. 1986).]

Third, under New York law, a developer does not have a “vested right” to complete a project under the existing zoning law unless and until there has been construction or other change to the land itself in furtherance of the project to such an extent that enforcement of a subsequently enacted zoning law would inequitably cause a serious hardship or loss.

[See, for example, Pete Drown Inc. v. Town Board of Town of Ellenburg, 229 AD2d 877 (3^rd Dept. 1996); Masi Management, Inc. v. Town of Ogden, 273 AD2d 837 (4^th Dept. 2000); Alaimo v. Town of Greece, 68 AD2d 743 (4^th Dept. 1979).]

Fourth, moratoriums, to be valid, must be “reasonable” in length. Courts consider a six-month moratorium, and, if circumstances warrant, an extension if additional study is needed, to be a reasonable length.

[See, for example, Lakeview Apartments of Hunns Lake v. Town of Stanford, 108 AD2d 914 (2^nd Dept. 1985; McDonald’s Corp. v. Village of Elmsford, 156 AD2d 687 (2^nd Dept. Noghrey v. Acampora, 152 AD2d 498 (2d Dept. 1988).]

And fifth, a resolution to enact a moratorium must follow the same procedures as a request to amend a zoning ordinance. But, note, adoption of a moratorium on land development or construction is a “Type II action” under SEQRA, and, therefore, no SEQRA reviewed is required.

[Here is a sample resolution enacting a moratorium; and, a document, Land Use Moratoria – NYS Dept. of State 1999,” which provides a thoughtful discussion of the topic.]

If asked, I will gladly provide the Common Council pro bono advice and assistance in preparing the required documents and navigating the procedurals steps needed to enact an effective moratorium to maintain the status quo until the proposed Green Code is carefully assessed and modified to assure preservation of the Elmwood Village’s historic fabric.

With all due respect,

Art Giacalone

POST-SCRIPT:

The post, https://withallduerespectblog.com/category/elmwood-village/, appears to have touched a nerve. More than 1,600 visitors have been to my oft-quiet website in a little over 48 hours. I can only hope that Buffalo residents who are troubled by the current assault on the Elmwood Village will take the time to express their concerns to their respective Common Council Members and Council President: dpridgen@city-buffalo.com; darivera@city-buffalo.com; jferoleto@ch.ci.buffalo.ny.us.

I would like to respond with some detail to a comment I have received. But, first, let me clarify a point. No one is compensating me in any way for my efforts to shed light on the Green Code process. As a former resident of the Elmwood Village (having lived as a young adult on both Auburn and Ashland avenues), I greatly appreciate its attractiveness and uniqueness as a place to live. As a lawyer who has represented residents in and around the Elmwood Village area for a quarter century, I know all too well how vulnerable this historic neighborhood is to the whims of developers and, all too often, compliant city officials.

COMMENT: What is the Elmwood Village Association doing about this? Do they have any interest in preserving the most beautiful area of Buffalo?

RESPONSE: I have no doubt that there are members on the EVA board of directors who care deeply about preserving and protecting the historic fabric of the Elmwood Village. But I have seen professionally – most recently, as the lawyer for a group of Granger Place and Forest Avenue residents and property owners fighting to prevent the demolition of ten century-old dwellings on the southeast corner of Elmwood and Forest – how the EVA has functioned more as the “Elmwood Village Chamber of Commerce” than as an organization determined to enhance the qualities that have made this portion of Buffalo the gem that it is.

It is understandable that there are mixed feelings about the current condition of the properties on the east side of Elmwood Avenue south of Forest Avenue – owned since 2009 by an affiliate of the Chason Affinity companies. However, for many years, neither the EVA (which was founded in 1994), nor the City of Buffalo, took effective steps to compel the former owner of the parcels, Hans Mobius, to properly maintain and preserve these properties. With the appropriate attention, these structures – built as two- and three-family residences between 1900 and 1920 – would proudly reflect “the unique and historic nature of Elmwood Avenue” the EVA claims it was formed to preserve and protect.

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Rather than attempting to save ten dwellings (eight on Elmwood and two around the corner on Forest) from the wrecking ball, EVA Executive Directors – one former, Justin Azzarella, and the current, Carly Battin – have functioned as cheerleaders for a developer who wishes to demolish them all, eliminate their welcoming front lawns, and construct a six-story (five stories and a penthouse), approximately 200,000 square-foot mixed-development project which would be completely out-of-character with Elmwood’s fabric and history.

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More specifically, Mr. Azzarella provided Chason Affinity with an undated letter (sometime after December 6, 2010) expressing, on behalf of the board of directors of the Elmwood Village Association, “support of your mixed-use development at the corner of Elmwood and Forest Avenue,” applauding the developer’s “commitment to developing an appropriately scaled, mixed-use building in keeping with the City of Buffalo’s Elmwood Village Design Standards” [EVDS]. [Click here for EVA support letter.]

Curiously, despite the fact that every single building on Elmwood between Bird and Forest avenues is less than three stories in height, Mr. Azzarella fails to explain how a five- or six-story structure could be compatible with the EVDS requirement that “new buildings shall respect the predominant height of buildings within the area”:

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More recently, Ms. Battin not only testified in a civil proceeding on behalf of Chason Affinity’s efforts to extinguish deed restrictions protecting the adjacent owners since 1892, she provided a sworn affidavit expressing EVA’s “full support” for the proposed planned hotel-condominium-retail, proclaiming that it would be “overwhelmingly beneficial for the commercial strip of Elmwood Avenue.” [Click here for Carly Battin’s affidavit.]

Notably, not a word was expressed by EVA’s former or current Executive Director regarding potential adverse impacts a 200,000-square-foot development would have on the residents living near the proposed project on Elmwood, Forest and Granger. And nothing was stated concerning the goal of protecting and preserving Elmwood Avenue’s unique and historic nature.

With All Due Respect,

Art Giacalone

BUFFALO’s “GREEN CODE” – Tricks Taint the Treats

Posted by Arthur J. Giacalone on October 30, 2015

Posted in: Byron Brown, Elmwood Village, Fruit Belt, Green Code. Leave a comment

** Proposed zoning and development law needlessly jeopardizes the quality of life of residents in the name of economic development. **

There are plenty of attractive concepts in the recently released draft of Mayor Byron W. Brown’s ”Green Code” (known officially as the “Unified Development Ordinance” or UDO). The image of a walkable, bicycle-friendly city. Tree conservation and open space. Designs for “complete streets”, including traffic calming measures and “road diets.” Environmentally-friendly roofs. Etc. And there is no reason that the laudable aspects of the plan that has been touted by the Brown Administration since 2010 should not become the city’s official policy.

But the attractive aspects of the Green Code disguise a comprehensive land use and development plan that replaces the ultimate goal of zoning – promotion of public health, safety and general welfare – with a single-minded push for economic development.

Under the Brown Administration’s scheme, zoning is no longer seen as a tool to protect residential streets from the increasing encroachment of commercial activities. Instead, it is but one more tool to further “economic development,” by providing a mechanism for commercial uses to spread to virtually every residential block in Buffalo.

As reflected in Mayor Brown’s October 22^nd press release, the quality of life of Queen City residents has become little more than an afterthought:

The Green Code … is the key element of Mayor Brown’s place-based economic development strategy aimed to further promote private and public sector investment, facilitate job creation, restore the environment and improve Buffalo’s quality of life for residents.

But a funny thing has happened during the half-decade that it has taken for the Mayor’s Office of Strategic Planning and a gaggle of handsomely-paid consultants to produce the latest version of the so-called “Unified Development Ordinance.” According to His Honor, Buffalo has experienced “over $5.5 billion in new economic growth.”

In other words, the city’s current zoning ordinance has not been an obstacle to a major economic boom. This reality was underscored by the venue chosen for last week’s announcement of the filing of the Mayor’s Green Code proposal with the Common Council. Mayor Brown’s exuberant promise to “revolutionize the development process” was proclaimed from an outdoor podium at Larkin Square. The thriving Larkinville district, as well as projects such as HarborCenter, and the new Delaware North headquarters at Delaware and Chippewa, have grown and prospered despite the absence of the Green Code.

The fate of the Unified Development Ordinance lies in the hands of Buffalo’s Common Council. As the city’s legislative body, the nine council members have the ultimate authority to approve, modify, or reject the 334-page proposal. Here are some observations I urge them to keep in mind:

As proposed, the draft Green Code would allow commercial and non-traditional residential activities on virtually every residential street.

The Brown Administration and Green Code advocates are enamored with the concept of “mixed use” neighborhoods where everything residents need is theoretically within easy walking distance of their homes. At the October 22^nd media event, Leslie Zemsky – known as the Larkin Group’s “Director of Fun” – told the assembled crowd that the Green Code would create “fun” by bringing back mixed use communities.

While that concept may sound attractive to the 20- to 40-year-olds and empty-nesters coveted by downtown developers, many City of Buffalo residents may not be enthralled at the thought of the following activities being allowed on their tranquil residential streets: restaurants (including live entertainment), retail and service stores, professional offices, industrial artisans, and taverns. But that is precisely what is being proposed in the latest version of the Green Code for the vast majority of residential streets – in the University District, Parkside neighborhood, the West Side, the East Side, South Buffalo, the Fruit Belt or the Elmwood Village – through a device referred to as “neighborhood shops.”

In its current form, the Green Code would allow a “neighborhood shop” – including as disruptive an activity as a tavern with live entertainment – to be established in so-called “N-2R” and “N-3R” zones within “an existing commercial building,” even if the structure was last used for commercial purposes generations ago, if an applicant obtains a special use permit.

Disturbingly, the “neighborhood shop” concept is not reflected in the mechanism hailed by the Brown Administration as providing residents and developers a quick and easy way to immediately see which uses are allowed in each of the proposed zoning code’s twenty-two (22) zoning districts: the PRINCIPAL USES Table.

The use table, known as “Table 6A: Principal Uses,” is comprised of two pages, with the abbreviations for each of the 22 zoning districts listed horizontally, and approximately 86 “uses” listed vertically. Accordingly to the Green Code text, the “Permitted” symbol, a black circle, “indicates that the use is permitted by-right in the zone,” while the “Special Use” symbol, a half-white/half-black circle, “indicates that the use requires a special use permit.” The reader is then told: “If a cell is blank, this indicates that the use is not permitted in the zone.”

That assertion, however, is not true. The Principal Uses table fails to reflect the potential that neighborhood shops” are allowed with a special use permit in two prevalent “residential” zoning districts, N-2R and N-3R. By not indicating the possibility that one or more of the five categories of so-called “neighborhood shops” could be coming to a currently residential block, residents are being misled to believe that their neighborhood is safe from encroachment by unwanted commercial activity, and the accompanying traffic, noise, and loss of privacy.

But even on blocks without a pre-existing commercial building, residential streets throughout Buffalo would be subjected to the following uses on any lot: a bed-and-breakfast (with up to 10 guests); a cultural facility or place of assembly; a group home for unrelated persons with disabilities (including those who have undergone treatment for alcohol or drug addiction); “public safety facilities”; and a “market garden” open to the general public.

The draft Green Code, by extensive reliance on the “Special Use Permit” process, would bring more uncertainty – not less – to Buffalo’s residential neighborhoods, and provide less protection to nearby residents and property owners than zoning amendments and variances.

The Mayor’s propaganda machine promised a new land use code that would bring “clarity and predictability” to the zoning process, allowing neighbors to have “certainty about what can and cannot be built next door.” Unfortunately, the proposed Green Code does just the opposite. By creating the potential for a wide variety of non-residential uses in residential neighborhoods through overuse of the “special use permit” process, residents on the vast majority of Buffalo’s residential streets – whether homeowners or renters – will be burdened with the possibility of living next door or down the block from unwanted commercial activities.

In its latest iteration, the Green Code’s “Principal Uses” table depicts the “Special Use” symbol more than one hundred sixty (160) times. That means that there are 160 different circumstances where a particular use might be allowed. As noted above, that number does not include the availability of special use permits to establish or expand a “neighborhood shop” in a building originally constructed for commercial usage.

An activity requiring a special use permit is not allowed “by right,” but requires a property owner or authorized person (for example, a businessperson who does not own the property) to apply to the Common Council for a “special use permit.” The Green Code’s widespread reliance on the special use permit process not only creates uncertainties for nearby property owners and residents, it provides little protection and creates a false sense of security.

Developers and the business community generally prefer special use permits, and for a good reason. New York’s courts have consistently ruled that when a legislative body – such as the Common Council – includes a use in a zoning law as an allowed activity if a special use permit is granted, it is making a finding that the use is in harmony with a community’s general zoning plan and will not adversely affect the neighborhood. For that reason, an applicant possesses a much greater chance of obtaining a special use permit than it does a zoning amendment from the Common Council, or a variance from the Zoning Board of Appeals. Not only are special use permits the easiest type of zoning approvals to obtain, they are the hardest approval for an unhappy neighbor to overturn in court.

The Green Code team fails to adequately explain why the proposed new law emphasizes “Form” – that is, the types of buildings – over “Function” – how the buildings will be used.

The authors of the draft Buffalo Green Code have chosen to push aside the traditional approach to zoning and land use regulations – which emphasizes how land and buildings are used – and, without adequate justification, have proposed a “form-based code” where emphasis is on the type of buildings that are allowed, rather than the activities that are taking place in the building.

Hand-in-hand with the “form-based” approach taken by the Mayor’s Office of Strategic Planning is an effort to equate the physical look of a neighborhood or street with its “character.” While the “form” of buildings – especially their size and proximity to neighboring parcels – affects the character of a neighborhood or community, it is often the type of activities which occur within and around that structure that has the greatest impact on nearby properties and uses, especially nearby residences. This fact would be especially true if an existing building – constructed decades or a century ago for commercial usage but presently used for residential purposes – was allowed under the Green Code to revert back to a commercial activity as a “neighborhood shop.”

The Green Code’s proposed elimination of all minimum parking requirements is unfair to existing businesses and nearby residential neighborhoods.

The Brown Administration has chosen to eliminate all minimum off-street motor vehicle parking requirements in its proposed zoning ordinance. The Mayor’s staff calls this a “market based approach,” based on the fiction that developers wishing to construct a new building, or expand an existing one, will always make certain that their tenants, customers, and employees have adequate parking facilities.

In the real world, however, developers are often tempted to skimp on off-street parking if given the opportunity, preferring to construct larger buildings that will provide additional revenue. When that happens, tenants and customers are compelled to park on the street. In areas where parking is already at a premium, existing businesses suffer when their lots are used by someone else’s customers, or their own customers can no longer find on-street spaces nearby. Worse of all, the excess parking spills over to neighboring residential streets, bringing with it noise, loss of privacy, and inconvenience. Recent news stories reflect the fact that homeowners and tenants throughout Buffalo – from the Fruit Belt to the Lower West Side to the Elmwood Village – are already besieged by nonresidents parking near their homes, resulting in substantial inconvenience and loss of privacy. The Green Code’s elimination of any minimum off-street parking requirement will greatly exacerbate that problem.

It is ironic that a proposed land use plan that eliminates the requirement that businesses provide off-street parking spaces for motor vehicles is being presented to the Common Council simultaneously with the news that the U.S. government is providing an additional $18 million to finish the task of returning cars to Buffalo’s Main Street. Here’s Byron Brown’s reported comment concerning the federal aid:

“This will give us everything we need to have a beautiful lower Main Street that stimulates additional investment and job creation.”

Everything but an appropriate place to park those additional cars.

The latest version of the Green Code fails to preserve the character and historic fabric of the Elmwood Village.

Mayor Brown’s recent press release echoes the promises made throughout the Green Code process that the new zoning code would encourage buildings “that fit our historic city patterns.” But the latest edition of the proposed Uniform Development Ordinance would eliminate the very features of the current zoning ordinance that have reinforced and preserved the historic fabric of the Elmwood Village and nurtured the balance between residential and non-residential uses: substantial limits on the intensity and scale of commercial uses on Elmwood Avenue.

Some specific concerns:

A. Placement of most of Elmwood Ave. in the so-called N-2C “Mixed-Use Center” Zone is inconsistent with the historic fabric of the Elmwood Village.

With the exception of its intersection with Lafayette Ave., all of Elmwood Ave. starting just north of W. Ferry St. and extending to Forest Ave. has been designated an N-2C “Mixed-Use Center” zoning district. The description of the N-2C zone in the Green Code sounds innocuous enough:

“The N-2C zone addresses mixed-use, walkable centers of Buffalo’s most compact neighborhoods, many of which were fully developed before the automobile became prominent.”

But labeling this integral stretch of the Elmwood Village N-2C ignores the character and scale of the existing buildings, and, thereby, the unique charm that has made this neighborhood so attractive. N-2C allows 5-story commercial buildings – with the decidedly unattractive moniker of “Commercial Block” – despite the fact that the predominant height in this area is 2 to 3 stories. The N-2C zone also prohibits the construction of houses, whether detached or attached, despite the prominence throughout this portion of the Elmwood Village of free-standing residential structures.

B. The height and scale of “Commercial Block” buildings is inconsistent with the character of the Elmwood Village, and will adversely impact residences on abutting streets.

As currently written, the Green Code would allow so-called “Commercial Block” buildings up to 5 stories in height, and as wide as 120 feet in those areas of Elmwood Avenue zoned N-2C. In contrast, the proposed maximum height of Commercial Block buildings on the stretch of Hertel Avenue between Delaware Ave. and Starin – a so-called N-2E zone – is a more reasonable 3 stories.

While the current maximum width of lots in N-SC – 120 feet – is a substantial improvement over the inexcusable 225-foot maximum in the Green Code’s May 2014 draft, it is still totally inconsistent with the Elmwood Village. A 5-story commercial block building 120-feet in width built on a typical Elmwood Avenue lot 140 feet deep [such as would occur at the southeast corner of Elmwood and Forest] would contain nearly 75,000 square feet of floor area. In contrast, the two-story iconic building that Café Aroma shares with Talking Leaves book store at the southeast corner of Elmwood and Bidwell Parkway has 7,500 sq. ft. of floor area:

Mr. Goodbar is a 2-story building with a total of 6,930 sq. ft.:

And Casa-Di-Pizza, also two-stories in height, sits on a 64-foot wide lot and weighs in at less than 11,500 square feet.

Even the Lexington Co-op’s more recent building at Elmwood and Lancaster is only 8,800 sq. ft.

As currently written, the draft Green Code generally requires a zero-foot rear yard for Commercial Block buildings – NO BACK YARD! In response to outcries from neighboring property owners on abutting residential streets, the current version requires a minimum rear yard setback of “10% of lot depth if rear lot line abuts an N-2R, N-3R, N-4-30, or N-4-50 zone.” While a slight improvement, this feeble buffer would subject residents – such as a group of prior clients of mine on Granger Place – to a 5-story commercial building a mere 14 feet from their rear yards, replacing what have historically been the back yards of 2-family residential structures.

C. Allowing 120-foot wide Commercial Block buildings will hasten speculation and demolition of the characteristic Elmwood Village structures.

It is not only the incongruent scale of the “Commercial Block” buildings envisioned by the draft Green Code that threatens the historic fabric of the Elmwood Village. Many of the lots in the Elmwood Village are only 30 to 40 feet wide. Allowing buildings 5-stories tall and 120 feet wide would encourage speculators to purchase and demolish rows of century-old residential structures – the essence of the Elmwood Village’s character. And, as noted above, the Mayor’s proposed development ordinance would prohibit construction of any new dwellings – whether in the form of attached or detached houses – on Elmwood Avenue, despite the historic neighborhood’s blend of residential and commercial structures.

D. The Green Code further threatens the scale and character of the Elmwood Village by eliminating the strict limitations on the size of commercial establishments that were established in the mid-1970s pursuant to the protective provisions found in the “E-B” special zoning district.

In the mid-1970s, Buffalo’s Common Council wisely took steps to protect the stability and viability of the portion of Elmwood Avenue that is now popularly known as the Elmwood Village – starting at Virginia Street and heading north to Forest Avenue – by enacting a “special zoning district” known as the Elmwood Avenue Business District (E-B). The legislation’s purpose [found at Section 511-86(B) of the current City of Buffalo Zoning Ordinance] was expressed as follows:

Legislative intent. The Common Council finds that the stability and continued viability of this area as a sound residential, commercial and cultural area of the City is threatened by the overdevelopment and expansion of bars, taverns, restaurants, takeout food shops and other commercial enterprises which threaten the continuation of the essentially unique and continuing viability of this area. The Common Council further finds that the encroachment and expansion of enterprises of his nature have given rise to traffic congestion, hazards to the life and safety of pedestrians and motor vehicle passengers and operators, extensive illegal parking, excessive noise, vandalism and trespass and damage to public and private property. Further, this condition has created annoyance and interference with the rights of residents of the neighborhood to their right to peaceful enjoyment of their property and an invasion of their rights of privacy. By creating this special zoning district, the Common Council of the City of Buffalo intends to create a compatible balance between the legitimate commercial interests and the lawful interests of the residents of this area.

A critical mechanism used in the E-B zoning requirements to create “a compatible balance” between the legitimate interests of residents and businesses was the following limitation on the size of a commercial establishment:

“Maximum floor area for a single business outlet; 2,500 square feet on any single floor or 5,000 square feet total floor area in any single building.”

This restriction on the size of new business establishments has contributed to the unique charm and attractiveness of the Elmwood Village, and its recognition by the American Planning Association as one of the ten “Great Neighborhoods in America.”

Despite the undoubted success of the Elmwood Village as a thriving urban community, the draft Green Code would drastically alter the existing balance between the quality of life of residents and commercial activity. In stark contrast to the 2,500 square feet “on any single floor” maximum created in the E-B district legislation, the latest Green Code draft sets the limit for “ground floor commercial space” in the Elmwood Village at 10,000 square feet, and provides no limits for an entire building or business. Relaxation of restrictions on the scale of commercial activity will jeopardize the essence of the Elmwood Village.

[Note: I addressed the adverse impacts of the proposed Green Code on the Elmwood Village in greater depth in a May 2014 post: https://withallduerespectblog.com/2014/05/20/buffalo-green-code-developers-given-green-light-on-elmwood-avenue/.]

E. By its inflexible insistence on zero front-yard setbacks, the proposed Green Code will eliminate the green front lawns that grace a substantial number of Elmwood Avenue lawns.

In sharp contrast to the inviting green lawns that have adorned so many of the Elmwood Avenue properties, the proposed zoning law mandates – in the name of “walkability” – that all structures be built right at the sidewalk with zero setback. Once again, such a requirement adversely impacts the fabric and feel of the Elmwood Village.

6. Rather than protect the low-income residents of McCarley Gardens and the Fruit Belt neighborhood from encroachment by the Buffalo Niagara Medical Campus, the draft Green Code would increase the threat and pace of displacement and gentrification.

The draft Green Code classifies the McCarley Gardens site at the corner of Michigan Avenue and Virginia Street as a “Residential Campus.” While at first glance that may sound reassuring to the 140+ families living in the predominately black, low-income townhouse development in the shadows of the Buffalo Niagara Medical Campus, the details suggest otherwise.

In the hands of ardent “mixed use” proponents, the term “residential” no longer means what Buffalonians might think. The Brown Administration’s land use plan does little, if anything, to protect the current residents from being pushed out of their homes, in order to make way for new and profitable development, by proposing creation of a “mixed use” campus. By virtue of the types of uses that would be allow on the so-called “Residential Campus,” the Green Code as currently drafted provides a major incentive for developers to purchase and demolish McCarley Gardens. The 23 townhouse buildings could be profitably replaced with an up-scale project that could include everything from medical clinics, residential care facilities, professional offices, and retail and service establishments, to hotels, restaurants (with outdoor dining and live entertainment), and taverns.

Additionally, the draft Green Code’s lengthy list of non-residential uses and sizeable buildings permitted alongside the medical campus and on the predominately residential streets of the Fruit Belt neighborhood will fuel the speculative purchase of properties and gentrification – the displacement of the current homeowners and tenants in the historic community to the east of the medical campus.

The Green Code is now in the hands of Buffalo’s Common Council. We can only hope that each one will soon be able to answer the question: So, what activities could occur on my block if the Green Code is enacted?

With All Due Respect,

Art Giacalone

Note: A version of this post was published in the October 29 – November 4, 2015 weekly edition of ARTVOICE at http://artvoice.com/issues/v14n43/news_green_code.

Mayor Brown’s Representatives Attempt to Hijack Alternative “Green Code” Discussion

Posted by Arthur J. Giacalone on September 22, 2014

Posted in: B-N Medical Campus, Byron Brown, Carl Paladino, City of Buffalo, Elmwood Village, Fruit Belt, Gentrification, Green Code. Leave a comment

– But Buffalo’s residents and Common Council members aren’t served by misleading sound bites; they need specifics about the potential impacts on their homes and neighborhoods –

The thought that community members might hear an alternative view about the zoning implications of the city’s proposed Buffalo Green Code was apparently too much for Mayor Byron Brown. “His Honor” dispatched not one, but two members of the City’s Executive Department to attend and – it seems – do their best to commandeer the discussion: Nadine Marrero, the Mayor’s newly appointed Director of Planning [not to be confused with the Mayor’s Office of Strategic Planning], and Oswaldo Mestre Jr., the Mayor’s Director of the Division of Citizen Services.

The alternative “Green Code” discussion was organized by two Buffalonians who care deeply about the well-being and future of their fellow residents – Lorna Peterson and Veronica (Ronnie) Nichols. The event – sponsored by the Fruit Belt/McCarley Gardens Housing Task Force – took place this past Thursday evening, September 18, at the Moot Senior Center at 292 High Street, in the heart of Buffalo’s Fruit Belt community.

I was asked to talk about the implications of the draft Green Code’s rezoning provisions for Buffalo’s East Side residents, but found myself frequently interrupted by Ms. Marrero (who at least was apologetic) and Mr. Mestre (who tried desperately to mention his boss each time he spoke). There also was a rogue “civilian” sniper in attendance, intent on attacking me personally rather than engaging in an intelligent dialog regarding the accuracy of my statements [I’ll do him a favor and not mention his name]. Here are my thoughts on a number of questionable comments and issues raised by the Mayor’s Buffalo Green Code defenders:

Director of Planning Marrero mentioned off-handedly that the Green Code is “more concerned about what a building looks like than what is happening inside.” That skin-deep approach to development may work well for the casual visitor, or someone merely interested in lunch or a shopping spree. But it is wholly inadequate for the people living in the neighborhood. While the “form” of buildings – especially their size and proximity to neighboring parcels – affects the character of a neighborhood or community, it is the type of activities which occur within and around that structure that has the greatest impact on the quality of life of nearby residents. The authors of the Draft Buffalo Green Code appear oblivious to this reality.
It is possible to have “mixed-use” neighborhoods – as called for by the Green Code – without allowing commercial and non-residential uses on virtually every single residential block. The home is where the vast majority of people retreat for peace, quiet and privacy. Protecting the quality of life of city residents should be the top priority of any land use ordinance. The Green Code, as currently proposed, suggests a far different agenda when it provides business interests the opportunity to place restaurants, taverns, outdoor dining, live entertainment, professional offices, retail establishments, healthcare clinics, etc., etc., at the corner of residential streets.
The City-sponsored presentations and workshops on the May 2014 version of the Draft Buffalo Green Code – which always include a lengthy PowerPoint presentation – have NOT included either a slide or other visual depicting the proposed land use map, or a discussion of the many non-residential uses proposed for virtually every residential street in the City of Buffalo. Perhaps, as Director of Planning Marrero insists, one of the presenters may have had a map at his or her table. But neither the public, nor any Common Council Member in attendance, was provided basic information needed to accurately assess the pros and cons of the zoning proposals.
The authors of the Draft Green Code have NOT adequately justified their decision to ELIMINATE ALL MINIMUM PARKING REQUIREMENTS in the City of Buffalo. References are made to the current zoning code requiring too many off-street spaces, and the supposed wisdom of a “market-based” approach that trusts businesses to provide the number of off-street spaces their own customers will need. The “zero requirement” approach flies in the face of the many complaints the city receives from both its residents and existing businesses concerning the current lack of adequate on-street parking spaces. As proposed in the Draft BGC, new or expanding businesses will be tempted to construct larger buildings and skimp on off-street parking, compelling more and more vehicles to park on nearby residential streets.
I understand that the current version of the Buffalo Green Code is merely a “draft” that will be modified before it is submitted to the Common Council Members for their review and eventual vote on whether or not to enact it into law. I also recognize that the BGC authors have acknowledged some mistakes when confronted by a stunned or angry audience. But I still do not fully trust that the folks who will be deciding what version of the Green Code to submit to the Common Council will ultimately place the quality of life of residents over the desire of the business community to maximize profits. For example:

(a) If the BGC draftspersons truly cared about the character of existing residential neighborhoods, and understood the potential adverse impacts that can result from large-scale commercial activities, they would never have issued the May 2014 version of the BGC. As currently proposed, developers would be allowed to build a mixed-use facility, five-stories in height and 225-feet in length, with zero off-street parking requirements, in the Elmwood Village – monstrously large structures backing up to century-old residences on the adjoining streets.

(b) If quality of life and the environment were top priorities, rather than say – Mayoral politics – the May 2014 version of the draft BGC would not have included a significant change from the Green Code draft issued in the spring of 2012. The earlier version of the draft Green Code would NOT have allowed Carl Paladino’s Ellicott Development Co. to construct a stand-alone, 14-story hotel/office/condominium project on prime waterfront property. Buildings at this location were conceived in the 2012 draft as “connected, moderate-scale mixed-use buildings with pedestrian-oriented frontages.” The current version, however, without any justification or discussion, added “towers” as one of the “building types” that would be allowed in the zoning district where Mr. Paladino plans to construct “The Carlo” tower.

The “rogue ‘civilian’ sniper” at this past week’s alternative Green Code meeting boldly proclaimed that, unlike the City’s current zoning code, the Draft BGC protects McCarley Gardens, the low-income housing development located at the edge of the expanding Buffalo Niagara Medical Campus. Mayor Brown’s emissaries said nothing while sitting in the midst of Fruit Belt residents at an event sponsored by the Fruit Belt/McCarley Gardens Housing Task Force. In fact, while the draft Green Code may classify the McCarley Gardens development as a “Residential Campus” [“D-R”], it does NOT protect the current residents from being pushed out of their homes to make way for a new and totally different “Residential Campus.” Not only does the BGC not prevent demolition of the existing low-income residential development, it provides a major incentive for developers to remove McCarley Gardens and replace it with an up-scale development that – as currently written – could include, for example: residential care facilities, cultural facilities, government offices, frat houses, a hotel, restaurants, taverns, outdoor dining, retail and service businesses [including “large scale”], medical clinics, professional offices, a “solar farm,” cell towers, etc.
The Mayor’s representatives also remained silent when “Mr. Rogue” proclaimed that the draft Buffalo Green Code would protect the Fruit Belt from encroachment by the Buffalo Niagara Medical Campus. While the draft Green Code may provide an initial boundary for the medical campus, it does NOT – and cannot – guarantee that future rezonings will not expand the campus beyond the proposed boundary. More importantly, the draft Green Code’s lengthy list of non-residential uses and sizeable buildings that would be allowed in N-2E and N-2R zones will fuel the speculative purchase of properties and the intrusion of non-residential development, hastening the displacement of the current homeowners and tenants, and gentrification of the Fruit Belt neighborhood.
The City of Buffalo’s existing zoning code had nothing to do with the unfortunate decision in the 1950s to build the Kensington Expressway, despite Mr. Mestre’s suggestion of a connection. The zoning laws neither called for, nor enabled, that determination.
Lastly, the comment by Ms. Marrero that Buffalo’s current zoning laws reflect an effort to follow the Town of Amherst’s suburban pattern of development seems to overlook an important fact: when the city’ enacted its existing zoning code in the early 1950s, Amherst was predominantly rural in character and years away from its current personification of ‘suburban sprawl.”

Members of the City’s Buffalo Green Code team have confirmed that they do confer with Buffalo’s business community in private sessions regarding the BGC. [We certainly wouldn’t want the business elite compelled to justify their positions concerning future development at a public forum.] As I have stated in my written communications with the BGC team, and as I told Director of Planning Nadine Marrero at the close of our alternative Green Code meeting, I would gladly sit down with her and the Executive Director of the Mayor’s Office of Strategic Planning, Brendan Mehaffy, to share my resident-oriented perspective on the Green Code.

With All Due Respect,

Art Giacalone

Buffalo Green Code gives Developers “Green Light” on Elmwood Avenue

Posted by Arthur J. Giacalone on May 20, 2014

Posted in: Elmwood Village, Green Code. 1 Comment

– HISTORIC FABRIC OF ELMWOOD VILLAGE THREATENED BY DRAFT CODE –

A recent editorial in the Buffalo News praises the proposed “Buffalo Green Code.” Reading more like a press release than a thoughtful opinion piece, the newspaper’s editorial staff proclaims that the draft development code “revamps building rules to emphasize neighborhood character,” and “promises to move Buffalo into the forefront of progressive, 21^st century cities emphasizing accessible neighborhoods, environmental sustainability, mixed-use development and mass transit.”

The editorial reflects what Mayor Brown, out-of-town consultants and City Hall staff have been telling city residents for years: a neighborhood’s “historic fabric” – that is, building form and design, lot sizes, parks and streets – will provide “the foundation for future growth” and play an important factor in determining a neighborhood’s future. In fact, the 2012 version of the code emphasized that, “planning for sustainable neighborhoods means preserving the character of neighborhoods while encouraging development consistent with the prevailing patterns.”

Nice words. But residents and others who appreciate the unique character of the Elmwood Village should not take too much comfort in them. A close reading of the current draft of the “Uniform Development Ordinance” [the formal name for the Buffalo Green Code] reveals that the Brown Administration’s plans, if not drastically changed, will be disastrous for this attractive and livable community recognized in 2007 by the American Planning Association as one of the ten “Great Neighborhoods in America.”

To appreciate the tangible threat the Green Code represents to the Elmwood Village, it helps to hear what an urban planning expert and former Director of Planning for the City of Rochester, Arthur J. Ientilucci, AICP, had to say last year while serving as a consultant to five Granger Place and Forest Ave. property owners fighting to preserve their neighborhood’s quality of life:

“Elmwood Village is a thriving mixed use urban neighborhood with many amenities that are attractive to urban dwellers… A good deal of the Elmwood Village’s character is derived from the intermingling of small scale commercial uses and a variety of residential building styles affording a wide range of choice for its residents. The harmonious scale, older homes, and connectedness of buildings and uses throughout the area is a significant and attractive attribute. The district appears to have achieved a balance between residential and non- residential use both in terms of density, concentration and scale. This balance appears to have accrued from the residential character of the neighborhood, the scale of its non-residential structures in relation to nearby residential properties, and zoning code limitations on the intensity and scale of commercial use.”

The City’s past role in nurturing the balance between residential and non-residential uses in the Elmwood Village – most notably, the limits in the intensity and scale of commercial uses that have been in place since the creation of the Elmwood Business zoning district in the late 1970s – will disappear if the Buffalo Green Code, as currently drafted, is enacted into law by the City’s Common Council. Its authors have decided not to “REINFORCE” the historic fabric of the Elmwood Village by highlighting and protecting the current harmony between residential and commercial uses in terms of density, concentration in scale. Instead, the Uniform Development Ordinance proposes to “TRANSITION” much of Elmwood Avenue to what is awkwardly called the “N-2C Mixed-Use Center” zone, urban areas characterized by “significant scale” and “high diversity of uses.”

The inappropriateness of selecting “N-2C Mixed-Use” as the proposed designation for the Elmwood Village’s primary street can be seen by taking a close look at the current makeup of the two blocks of Elmwood Avenue extending from Potomac Ave. to Forest Ave.

There are approximately 30 buildings on Elmwood between Potomac and Bird. Not one of these buildings exceeds 2 1/2 stories in height. Two dozen or eighty percent of these structures were built a century ago as detached residential buildings. They are all separated from the public right-of-way by front lawns. Here are three examples:

Five of the remaining buildings were constructed for retail use on the first floor, with apartments or offices on the second. A small one-story retail structure was built in the 1960s.

The “form” [to borrow a term from the Green Code] of the buildings on the northernmost Elmwood Village block, running from Bird Avenue to Forest Avenue, is similar to the Potomac-to-Bird block. All of the buildings have fewer than three stories. Only seven of the approximately 30 structures were built for non-residential purposes, and one of those is a house of worship.

Each of the remaining buildings was constructed for residential use, and has a substantial setback from the public sidewalk and street. They include one-family, two-family, and three-family residences, as well as two eight-unit apartment houses.

The current draft of the Green Code prohibits the construction of any type of residence – detached, attached, or stacked – on virtually all of Elmwood Avenue from Bryant St. to Forest Avenue. There is an exception: residential units may be located on the second floor or higher in what the proposed code calls a “commercial block” building, described as follows: “A commercial block is a structure of two or more stories designed to facilitate pedestrian-oriented retail or office uses on the ground floor, with upper floors typically designed for residential, hospitality, or employment uses.” Article 3 – Neighborhood Zones – of the proposed code provides this illustration of a 3-story version of the “commercial block” form:

A number of existing structures on Elmwood Avenue between Potomac and Forest fit the definition of a “commercial block,” including, for example, the “Poster Art” building on the southeast corner of Elmwood & Bird, and Mr. Goodbar (pictured above). But each of these long-standing Elmwood Village fixtures is only two-stories in height, and complements the scale of the neighborhood’s residential structures.

In sharp contrast, the draft Green Code removes the existing zoning limitations on the intensity and scale of commercial building. Currently, the maximum building height is three stories. Of equal or greater significance, the existing zoning ordinance limits the size of a business outlet to 2,500 square feet on any one floor, and 5,000 square feet total in any one building. The local business community has been fighting for years – with the assistance of the Elmwood Village Association – to eliminate the square-footage restrictions. The proposed ordinance grants their wish and, in doing so, jeopardizes the appreciable balance that now exists between residential and commercial uses in the Elmwood Village.

More specifically, the proposed Green Code would allow a “commercial block” building on Elmwood Avenue to be five stories tall and to cover 100% of the lot – whether or not the parcel adjoins existing residences. While the typical lot on Elmwood between Forest and Potomac avenues is approximately 30 to 40 feet wide, the draft Green Code would allow a commercial block building to be constructed on a lot as wide as 225 feet. Not only would such a structure dwarf nearby buildings – residential or commercial – it would lead to developers buying and demolishing seven or eight existing residential structures in order to build one monolithic building.

If the Common Council were to enact the Green Code as presently proposed, a building in excess of 150,000-square-feet could be construct in the Elmwood Village AS OF RIGHT – that is, without the need for a zoning amendment or variance.

For example: The lots on the east side of Elmwood Ave. between Bird and Forest are 140-feet deep. Under the draft Green Code, a “commercial block” building is allowed to be five-stories in height, situated on a parcel as wide as 225 feet, and cover up to 100% of the lot. The proposed ordinance also eliminates ALL minimum off-street parking requirements for commercial buildings. With these rules in place, a building could be 225 feet wide, 140 feet deep, and five stories high. That translates to 157,500 square feet of commercial space [that is, 225’ x 140’ x 5 = 157,500 sq. ft.].

To help grasp the scale of a 157,500-square-foot building, JP Bullfeathers has a total square footage of 6,441 square feet. Mr. Goodbar’s two-story structure totals 6,930 square feet. And, heading south a few blocks on Elmwood Avenue, the Lexington Co-op supermarket totals 8,880 square feet. In other words, the hypothetical commercial block building described above would be MORE THAN 17 TIMES LARGER THAN THE LEXINGTON-COOP BUILDING.

Allowing such mammoth structures on Elmwood Avenue would obliterate the “balance between residential and non- residential use both in terms of density, concentration and scale” that Rochester’s former zoning director, Art Ientilucci, perceives as an essential aspect of the Elmwood Village’s character.

And it is not only the scale of the structures allowed under the draft Green Code that threatens the fabric of the Elmwood Village. It is also the diversity of uses that would be allowed under the Uniform Development Ordinance (in what appears to be a concerted effort by the proposed code’s authors to expand the traditional “downtown” area outwards).

While many a suburbanite may think of the Elmwood Village as “downtown Buffalo,” few, if any, Elmwood Village residents would accept that characterization. Nonetheless, under the draft code, not only would density on Elmwood Avenue be substantially increased, there would be little distinction between the uses allowed in the “N-1D Downtown/Regional Hub” zone, and those permitted in the “N-2C Mixed-Use Center” zone, the proposed designation for much of Elmwood Avenue. With the exception of a correctional facility, college or university, halfway house, and emergency shelter, all of the 53 principal uses allowed in downtown Buffalo would be permitted in the N-2C zone either as-of-right or with a special use permit. That includes hotels, government offices, indoor amusement facilities (undefined), and dormitories (without the current limitation of being located within ½ mile of the institution it would serve). [The May 2014 draft Green Code lists the “principal uses” for each of the 23 zones and districts at page 1 and page 2 of “TABLE 6A”.]

For all of these reasons, the proposed Buffalo Green Code will be a disaster for residents and visitors who value the character and historic fabric of the Elmwood Village. But don’t rely solely on the word of a semi-retired land use and environmental lawyer who is often referred to by his detractors as “anti-development” and an “obstructionist.” Also consider what Rocco Termini, the prominent Buffalo developer, wrote in a March 4, 2006 op-ed piece in the Buffalo News entitled, “Proposed hotel doesn’t fit area’s urban fabric.” Responding to a planned four-story, 40,000-square-foot hotel/retail project slated for the southeast corner of Elmwood and Forest, Mr. Termini, the recent recipient of Leadership Buffalo’s “Community Impact Award,” expressed the following:

“The controversy surrounding the construction of a hotel on the corner of Elmwood and Forest avenues is not about size; it’s about destroying the urban streetscape that has made Elmwood a successful pedestrian-friendly shopping area.

People come to Elmwood to walk around and visit all the quirky, offbeat shops… We, as a community, cannot lose the uniqueness of the Elmwood strip.

The supporters of the development suggest that the six buildings need to be demolished because they have been neglected by the owner over the last decade. As a policy, do we want to reward bad owners by allowing them to sell their property to eager developers?” …

We need to change the direction of the development community and do not just things that are easy, but what is right for the community. This is an opportunity to be proud of what we do.”

The draft Buffalo Green Code, as currently written, would provide developers a virtual “Green Light” to unravel the historic fabric of the Elmwood Village. [By the way, I thank my friend Sandra Girage for providing the answer to the question that has been haunting me for years: What exactly does “green” stand for in the name “Buffalo Green Code?”]

Unless the residents and friends of the Elmwood Village stand up and loudly demand a major change in the proposed code, the road ahead will be a rough one for this historic neighborhood. Your written comments on the draft Green Code should be emailed to info@buffalogreencode.com or sent by the U.S.P.S. to: Attn: Buffalo Green Code, Mayor’s Office of Strategic Planning, 920 City Hall, Buffalo NY 14202.

With All Due Respect,

Art Giacalone

P.S. A version of this posting was published in the May 22, 2014 edition of the ArtVoice Weekly at http://artvoice.com/issues/v13n21/letters_to_artvoice.

With All Due Respect

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