SEQRA

Plea to Buffalo Outer Harbor Activists: Refocus, Don’t Appeal!

Posted by Arthur J. Giacalone on December 30, 2021

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

I agree wholeheartedly with one point raised in the December 29th email from my longtime friend and former client, Margaret Wooster. It is time for citizens concerned about the Outer Harbor’s future to “strengthen our resolve and focus for the new year.” But I am absolutely convinced – after 32 years of representing residents in development and SEQRA cases – that the least effective step that could be taken at this juncture is to expend precious time, energy and money appealing the unfavorable decision rendered on December 9, 2021 by Supreme Court Justice Donna Siwek (see LWVBN v ECHDC – Siwek’s 12-09-21 Decision).

I greatly admire the grit shown by the Petitioners, League of Women Voters of Buffalo/Niagara, Inc., The 21st Century Park In The Outer Harbor, Inc., and The Western New York Environmental Alliance, Inc., in bringing the “Article 78 proceeding.” But here’s the reality: Their lawyers took a case that was going to be extremely difficult, at best, to win, and, in my professional opinion, gravely undermined any chance at success by their actions and omissions. Here are some examples:

First, complying with the four-month statute of limitations for challenging the determinations made by Erie Canal Harbor Development Corporation (ECHDC) isn’t just a “technicality.” It is a prerequisite for succeeding in a lawsuit. Commencing the lawsuit on June 24, 2021 was not only well beyond four months from the November 8, 2020 ECHDC approval of the contested plan and SEQRA “Negative Declaration,” it was more than four months from February 8, 2021, the date the ECHDC reaffirmed their original resolution. If Petitioners’ team of attorneys had hoped to prevail by making a “creative” legal argument, or by making new law on when the statute of limitations begins to run, they were obligated to fully inform their clients of the riskiness of their approach.

Second, a court challenge to a decision made by the City Planning Board – such as site plan approval, or LWRP consistency determination – must be brought within 30 days of the Planning Board’s action. The City Planning Board made its determinations relating to the ECHDC’s amphitheater plans on May 17, 2021, more than 30 days prior to the commencement of Petitioners’ lawsuit. [Note: On September 13, 2021, the City Planning Board revisited ECHDC’s site plan application, and reapproved it with conditions. The September 13th determination could have been challenged in court within 30 days of that approval by either filing a motion seeking to supplement the original Petition by adding the new claim(s), or by filing a second Article 78 petition. It appears that no such steps were taken.]

Third, as New York’s appellate courts have made clear, administrative boards – such as a municipality’s Planning Board or Zoning Board of Appeals – are separate and independent entities from the municipality itself. For that reason, when you challenge determinations made by the City of Buffalo Planning Board, the Planning Board is a “necessary party,” and must be expressly named as a Respondent in an Article 78 proceeding. By only naming the City of Buffalo as a Respondent, and failing to name the City Planning Board as a separate Respondent, Petitioners’ lawyers doomed any claims raised in the lawsuit based on City Planning Board actions or omissions.

Fourth, if a lawyer wishes to prevent construction-related activities – including vegetation removal and grading – during the pendency of a lawsuit, he or she must seek a restraining order or “preliminary relief” in a timely manner New York’s appellate courts have frequently held that, when no timely and meaningful attempt has been made to preserve the clients’ rights by requesting such relief, and significant construction-related activities occur, an appeal from an unfavorable ruling may be rendered “moot,” and the appeal dismissed. Here, for whatever reason, Petitioners’ lawyers did not seek a restraining order or preliminary relief in June 2021 when the lawsuit was commenced, despite the fact that the City Planning Board and Common Council had already given their approvals to the project. Nor did they file a motion seeking preliminary relief – despite four months of adjournments – at the time oral argument was heard in November 2021. [Note: Even if the request for preliminary relief had failed, under well-established legal precedent, the ECHDC would have been put on notice that it proceeded with any construction “at its own risk.”] Not even Justice Siwek’s unfavorable decision on December 9, or the subsequent sight of construction equipment at the site of the proposed amphitheater shortly thereafter, resulted in a prompt filing of papers requesting preliminary injunctive relief.

Because Petitioners’ lawyers have not, in my opinion, done “all they could do to timely safeguard their interests,” an injunction or “stay” at this point to prevent further destruction of our recovering Lake Erie coast is highly unlikely, and would have to be secured by a bond or other sizeable undertaking. [Note: If the appeal proceeded and was unsuccessful, Petitioners would be held liable for damages to ECHDC resulting from the delays.] Also, it appears, such injunctive relief at this stage – given the removal of over 100 trees and other vegetation, and the bulldozing and scraping off of soil on 5+ acres of the amphitheater’s “great lawn” – would be, at best, too little, too late.

I’m not happy to have to write this blog post. And, I won’t claim to have any great ideas on what steps need to be taken. But I urge Buffalo Outer Harbor Concerned Citizens to find a new focus for 2022.

With All Due Respect,

Art Giacalone

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

Posted by Arthur J. Giacalone on April 12, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A. Odors.

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

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

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

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

C. Impacts on Human Health.

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

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

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

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

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

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

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

E. Impacts on Energy.

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

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

With All Due Respect

Art Giacalone

Legal Challenge to The Lawrence apartment project

Posted by Arthur J. Giacalone on July 9, 2020

Posted in: B-N Medical Campus, City of Buffalo, Development, Fruit Belt, Gentrification, Green Code, SEQRA, Zoning Law. Leave a comment

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

July 9, 2020

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

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

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

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

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

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

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

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

With All Due Respect,

Art Giacalone

Buffalo’s Zoning Administrator acts like the Facilitator-in-Chief

Posted by Arthur J. Giacalone on January 31, 2020

Posted in: Byron Brown, City of Buffalo, Development, Green Code, Nadine Marrero, SEQRA, Zoning Law. 3 Comments

[Update: When I wrote this post in late January, I whimsically suggested how nice it would be to hold a forum to discuss the failings of Buffalo City Hall’s approach to zoning and development proposals. Well, I had my wish substantially come true. On March 5, 2020, I had the honor of sharing the (politically-correct, non-elevated) dais with Jessie Fisher, Preservation Buffalo Niagara’s Executive Director, and Partnership for the Public Good’s Sam Magavern, for a Buffalo Commons Workshop titled, “Local Land Use, Green Code, and Zoning.” More than 30 people attended the two-hour lunchtime event, and the discussion was spirited (if not, overly encouraging). Here’s my hand-out: March 5 2020 Workshop on Land Use Green Code and Zoning, where I reflect on how similar the problems were 13 years ago when I first addressed the “uneven playing field” residents face at a Continued Legal Education seminar, and then proceed to the topic of this post: the role Buffalo’s Zoning Administrator/Director of Planning, Nadine Marrero, plays as the developer’s facilitator-in-chief.

Buffalo’s Division of Planning & Zoning is part of “The Mayor’s Office of Strategic Planning” – that’s Mayor Byron Brown, of course. The OSP is headed by Brendan R. Mehaffy. And, the head of the Planning Division is its Director of Planning, Nadine Marrero. According to the OSP’s home page, “The Division of Planning & Zoning oversees the administration of the City’s development regulatory boards (Planning Board, Zoning Board of Appeals, and Historic Preservation Board) and engages the community in planning initiatives. ”

Director of Planning Marrero wears a number of hats, having been named “Zoning Administrator” under the City of Buffalo’s Unified Development Ordinance (UDO) [unofficially, Buffalo’s Green Code].

Having observed Ms. Marrero’s handling of her responsibilities the past several years [before and after the 2017 adoption of the UDO/Green Code], I was rather astonished recently to read the following “Objective” of the Planning Division: “Ensure fair and equitable administration of land use policies and regulatory boards.”

Frankly, I would have sworn that the objective – or, perhaps, the job description for Mayor Brown’s Zoning Administrator – was more akin to: “Serve as facilitator-in-chief to developers as they circumvent the requirements of the UDO and State Environmental Quality Review Act [SEQRA].”

It would be wonderful if we could hold a public forum where residents and community groups would have the opportunity to evaluate the performance of The Mayor’s Office of Strategic Planning and Division of Planning & Zoning in meeting the objective of ensuring fair and equitable administration of land use policies and regulatory boards. [We could even give city officials and developers’ attorneys three minutes apiece to respond to the public’s comments and concerns.]

Here’s my first draft of a summary of topics to discuss at such a forum:

Title: Do Residents/Neighborhoods confront an Unfair & Inequitable Zoning/Planning Process?

Purpose of forum: Evaluate Division of Planning’s Stated Objective to “Ensure fair and equitable administration of land use and regulatory boards.”

Assumption: Residents/Neighborhoods/Community Groups face an uneven playing field.

A Major Cause: The Planning Director/Zoning Administrator, and much of her staff, function as developers’ Facilitators-in-Chief as proposed projects navigate the zoning, planning, and environmental review process.

Surprising Fact: The Zoning Administrator’s listed duties do not include reviewing applications to determine and/or assure compliance with Uniform Development Ordinance standards.

Observation: Proposed projects are given advantageous treatment at each step in the zoning/planning process:

A. Prior to Public Announcement of a Zoning Matter

– “Pre-application conferences” serve as strategy sessions where staff and developers’ representatives discuss ways to get around UDO restrictions, and where there is no apparent effort to conform proposals to UDO/Green Code standards.

– E.g., Queen City Landing’s proposed PUD to circumvent 6-story, 90’ height limits

– E.g., 983 Michigan Ave. apartment complex (“The Lawrence”), which requires 11 categories of variances – many of which are substantial – in 2 zoning districts.

– Zoning Administrator prematurely deems applications “complete” – and, therefore, prematurely schedules hearings and meetings – despite errors and omissions in the developers’ submitted papers.

– Zoning Administrator manipulates the order in which a project’s multiple applications are considered.

– E.g., Planning Bd.’s consideration of QCL’s PUD/rezoning application, SEQRA determination and LWRP consistency review separate from the Planning Bd.’s public hearing on major site plan review, thereby eliminating the public’s opportunity to address three critical topics

B. Scheduling and Noticing of Public Hearings/Meetings

– Scheduling back-to-back public meetings/hearings, which places a large burden on the public, and eliminates the likelihood that the Common Council and/or the public will receive the Planning Bd.’s written recommendations prior to the next public hearing.

– E.g., 1/13/20, 4pm, Pl. Bd. public meeting (not “public hearing”) on Queen City Landing’s Planned Unit Development (PUD)/rezoning request, SEQRA determination of significance and & LWRP consistency reviews; the following day, at 1pm, the Common Council Legislation Committee’s public hearing on the proposed PUD.

– Scheduling of Pl. Bd. site plan public hearings despite ZBA’s tabling of variance requests.

– E.g., on 1/27/20, Pl. Bd. conducts public hearing on 943 Michigan Ave. project (“The Lawrence”) despite ZBA’s tabling of variance application 1/15/20. As a result, site plan under consideration violates more than a dozen UDO standards.

– Note: UDO requires the Pl. Bd. to make a written finding on “approval standards,” the 1st of which is: “The project complies with all applicable standards of this Ordinance.”

– Publishing and mailing of inadequate notices for public hearings.

– E.g., no indication “943 Michigan Ave. – Construct multiple-unit residential building” application involved 129 units, needed 11 categories of substantial variances, and included 9 parcels on Maple St. – N.B. Under UDO, absentee landlords, not tenants, receive mailed notices

– On-line material in a board or committee’s “Journal” are often not available until 3 or 4 days prior to a scheduled public hearing; the “Journals” are frequently modified shortly before a public hearing without the public’s knowledge of the additional material

C. Last-minute “support” provided by OSP staff to Pl. Bd., ZBA members (but, not available to the public).

– Staff Reports provided to members of Pl. Bd. and ZBA are markedly one-sided (for example), disregarding perspective of neighbors, and community organizations.

– OSP staff, without first receiving instructions from the “lead agency,” draft SEQRA Determinations of Significance, and, nearly 100% of the time, end the SEQRA review by providing a Negative Declaration.

– Neither the Staff Reports, nor Negative Declarations, are informed by the public’s comments, concerns

D. Public hearings fail to provide the public with an adequate opportunity to address projects.

– Due to the disadvantages noted above, the public is greatly handicapped at public hearings.

– Virtually all public hearings involve a 3-minute limit for each individual opposing a project.

– E.g. Residents and activists were given 3 minutes at the 1/14/20 public hearing on the QCL PUD at the Common Council Legislation Committee’s (conducted by Councilmember Feroleto) to address approximately 600 pages of documents submitted by the applicant. The Chair would not allow the public an opportunity to rebut the “reply” statements made by the applicant’s representatives (but did, reluctantly, leave the public hearing open).

– Public hearings are closed despite board’s request for additional info from developers.

E. Other examples. …

If you think such a public forum would be useful, or wish to share your comments with the appropriate officials, you can (theoretically) reach Nadine Marrero at nmarrero@city-buffalo.com, and Brendan Mehaffy at bmehaffy@city-buffalo.com.

With All Due Respect,

Art Giacalone

“The Lawrence” highlights what’s lousy with Bflo’s land use laws

Posted by Arthur J. Giacalone on November 25, 2019

Posted in: B-N Medical Campus, Byron Brown, City of Buffalo, Development, Fruit Belt, Gentrification, Green Code, SEQRA, Zoning Law. Leave a comment

Tim LeBoeuf and his Symphony Property Management, LLC, have big plans. They would like to construct “The Lawrence,” a 5-story, 131-unit market rate apartment project on Michigan Avenue and Maple Street.

If built, The Lawrence would be the first major residential project encroaching on the Fruit Belt, a historically rich, economically poor, predominately non-white neighborhood. It is a neighborhood situated immediately east of the Buffalo Niagara Medical Campus (BNMC), bordered by Michigan Avenue to the west, Jefferson Avenue to the east, Best Street to the north and the Kensington Expressway to the south, with High Street serving as its focal point. The Fruit Belt’s streets, which include names such as Grape, Peach, Lemon and Orange, consist primarily of one-family, two-family and three-family homes, nearly all of which stand no more than two stories high.

[Here’s a link to an informative brochure “Architectural Guide to the Fruit Belt” – as well as a link to an intensive survey of the Fruit Belt neighborhood’s history, people, and distinctive building stock. See P.S. below for additional information.]

BNMC and Fruit Belt map

Three peculiarities stand out to me as I review the papers filed with the Mayor’s Office of Strategic Planning in support of “The Lawrence”:

First, the submitted documents refer to “building” and “structure” as if the development consists of only one building. In fact, what is being proposed are two large buildings, one on Michigan Avenue facing the medical campus, and one on Maple Street, surrounded by the Fruit Belt neighborhood. [Note: The official terminology used in the Zoning Board of Appeals (ZBA) “agenda” continues the misleading reference to a lone building, “983 Michigan Avenue – Construct Multiple-Unit Residential Building.”]

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Second, Tim LeBoeuf’s application uses at least three different titles for the project: “The Lawrence Market Rate Apartments,” “Michigan Avenue/Medical Campus Apartments,” and “The Lawrence Michigan Avenue Apartments.” Notably, none of the names references the project’s location within the Fruit Belt, or seems to target as potential tenants current Fruit Belt residents.

Third, consistent with the various names given to the proposed development, the project seems designed to ensure that its “market rate” tenants can, if they choose, have virtually no interaction with the people who presently call the Fruit Belt their home (other than driving their vehicles to and from the enclosed ground floor parking and the adjacent street). Patios are located internally. None of the units will have balconies facing either Maple Street or Michigan Avenue. The prolonged Maple Street expanse gives the impression of an unwelcoming wall.

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The more I think about the proposed development’s details – and the political, social, and legal context in which it was submitted and is being processed – the more I realize that “The Lawrence” proposal epitomizes virtually all that is (from my perspective) wrong with the land use, zoning, and development processes in the City of Buffalo. And the more I am reminded that much of what I view as detrimental to the interests and effectiveness of city residences is: (a) rooted in the pro-development philosophy of Mayor Brown; and, (b) facilitated by the all-too-often docile and ineffective actions of the city’s legislators, the Common Council, headed by its President, Darius Pridgen (who is also the Ellicott District Councilmember, and, therefore, tasked with the responsibility of representing the interests of the voters in and around the Fruit Belt).

More specifically:

1. THE primary function of the Green Code is to provide a “Green Light” to development, not, as promised, to preserve neighborhoods or protect the quality of life of residents.

When Mayor Byron Brown announced the Buffalo Green Code back in 2011, city residents were promised a land use plan that would preserve the character of neighborhoods and encourage future development that was consistent with the prevailing patterns. Residents were told that the historic fabric in a neighborhood – typical lot sizes, scale of existing buildings, and the intensity of development – as well as what residents wanted to see in their neighborhoods, would provide the foundation for future growth. That’s not what we got.

The Green Code, crafted, not by our legislative body, the Common Council, but primarily by and under the supervision of the Mayor’s Office of Strategic Planning, supplanted these lofty goals with a competing set of interests: the desire of developers to maximize profits.

The new zoning ordinance increases the ability of developers and commercial interests – not City residents and their elected Common Council members – to decide where new construction will occur by not only significantly increasing the amount of land “available for as-of-right development” (that is, without the need for rezoning or the grant of a special use permit by the Common Council), but also by greatly increasing the density of the projects permitted “by right.”

2. The Green Code, and the state-mandated “environmental review” that preceded it, ignored the adverse impacts of gentrification on less affluent neighborhoods such as the Fruit Belt, and encouraged displacement of longtime residents and homeowners by allowing commercial and residential buildings out-of-scale with the surrounding community.

Buffalo’s Common Council was the official the “lead agency” responsible under SEQRA (the State Environmental Quality Review ACT) to take a “hard look” at the potential adverse impacts of the proposed new zoning and development law – that is, the Uniform Development Ordinance or “Green Code.” Rather than preparing, or, at a minimum, closely supervising preparation of the state-mandated “draft environmental impact statement” that preceded the enactment of the Green Code, Buffalo’s elected legislators let the Mayor’s Office of Strategic Planning perform the lion’s share of this crucial task.

Despite protests (by me, AJGiacalone’s DGEIS comments 03-15-16, and others), the SEQRA study prepared by the Office of Strategic Planning failed to address significant legal and moral issues, such as: To what the extent would Mayor Brown’s vision for Buffalo – manifested in the “Green Code” – result in the displacement of low-income, mainly non-white residents from their neighborhoods? Would a zoning code that allows “as of right” construction of large mixed-use commercial buildings (what the Green Code calls “Commercial Block” buildings) on portions of Michigan Avenue and High Street near the medical campus, and large residential buildings (referred to in the Green Code as “Stacked Units”) throughout the Fruit Belt, accelerate gentrification and the displacement of Fruit Belt residents?

BGC Stacked Units dark0001

BGC Commercial Block dark0001

The failure of Buffalo’s executive and legislative officials to openly and objectively confront these issues has left many residents vulnerable. Tim LeBoeuf’s proposed apartment project, and the fashion by which it is handled by Buffalo City Hall, will undoubtedly begin the process of answering these and related questions that the Brown Administration and the Common Council chose not to address prior to enacting the Green Code.

3. Even when a zoning ordinance gives developers an extremely generous “inch,” some (most?) will try to take the proverbial “mile”.

The Green Code that was enthusiastically approved by Mayor Brown and the Common Council in early 2017 designates the portion of the east side of Michigan Avenue directly across the street from the Buffalo Niagara Medical Campus, as well as most of High Street between Michigan Avenue and Jefferson Avenue, an “N-2E” (Mixed Use Edge) zone. Under Buffalo’s zoning ordinance, an N-2E zone allows “by right” development of “Commercial Block” mixed-use buildings, and “Stacked Units” residential buildings, up to three-stories in height and on lots as wide as 120 feet.

The Green Code places virtually all of the remainder of the Fruit Belt’s residential streets, including Maple Street, in the “N-2R” (Residential) zone. While Commercial Block buildings are not allowed by right in an N-2R zone, under Buffalo’s zoning ordinance, “Stacked Units” residential buildings, up to three-stories in height and on lots as wide as 75 feet, are permitted “by right” in N-2R.

As written, the Green Code magnanimously allows a developer to construct “by right” on Maple Street a three-story, 15,750 square-foot apartment building on one or more parcels of land totaling up to 75 feet in width. Likewise, Buffalo’s zoning ordinance permits construction “by right” on Michigan Avenue of a three-story, 25,200 square-foot apartment building on parcel(s) of land as wide as 120 feet.

But that was not enough for Mr. LeBoeuf and company.

LeBoeuf’s Symphony Property Management is seeking approval to combine fifteen (15) parcels – six on Michigan Avenue totaling 181.5 feet in width (when the maximum width allowed in an N-2E zone is 120’), and nine on Maple Street totaling a whopping 260 feet in width (when the maximum permissible lot width in the N-2R zone is 75’). And the developer wants The Lawrence buildings to reach five stories in height – despite the Green Codes 3-story limit in both N-2R and N-2E zones.

All in all, the total square footage of The Lawrence as proposed is approximately 136,800 square feet of new, market rate apartments (I say “appears” because LeBoeuf’s papers do not supply this figure). As stated in the papers submitted in support of the proposed development, Symphony Property Management has chosen this “density and scale” in order “to provide a financially feasible project that does not rely on public funds to sustain itself.” LeBoeuf’s application then states that “the proposed scale is not out of character with the surrounding context of the Buffalo Niagara Medical Campus.” Revealingly, no mention is made of the inconsistency between the 5-story, 131-unit, 136,800-square-foot girth of the “The Lawrence” project, and the modest density and scale of Fruit Belt neighborhood it would surely dominate.

To demonstrate the extent to which LeBoeuf’s proposal is dramatically out of character with the surrounding Fruit Belt neighborhood, I have compiled “Property Information” from the City’s on-line site regarding the fifteen residential properties on or adjacent to Maple Street nearest to the fifteen parcels sought to be combined for the proposed apartment project. Here’s what the city’s official data reveals:

– Number of units: The 15 nearest residences – each containing one, two, or three units – have a total of 27 units, as compared to the 131 units proposed for The Lawrence.

– Number of stories: While LeBoeuf and company would like to build two 5-story structures, the average height of the 15 nearest residences – none of which is over two stories in height – is 1.67 stories.

– Square footage of buildings: The total area of the 15 nearest residential structures is 33,343 square feet. As noted above, The Lawrence as proposed totals approximately 133,800 square feet.

– Lot sizes: LeBoeuf would like to construct 133,800 square feet of market rate apartments on just 1.014 acres of land. In contrast, the total area of the 15 nearest developed lots is 1.402 acres, about 40% larger than The Lawrence composite site.

– Density of development: Most revealing of all, the 15 nearest residences comfortably support 19.25 units per acre, while The Lawrence proposal would dramatically alter the character of the Fruit Belt neighborhood with its 129.2 dwelling units per acre.

Symphony Property Management certainly is trying to make the most out of the very generous opening to the Fruit Belt provided by the authors of the Green Code.

4. Byron Brown’s Administration has created an environment in which “sophisticated” developers, their architects, and lawyers, don’t even try to present a proposal that meets the specific requirements of the Green Code.

As Mayor, Byron Brown appears to have filled City Hall with planners, administrators, and lawyers who understand, in the words of a friend of mine, His Honor’s “doctrine of development”: do everything you can to facilitate a developer’s proposal. On top of that, thanks to his longevity as mayor, Byron Brown has appointed – or, at a minimum, reappointed – every single member of the two entities meant to make the zoning process fair and transparent: the City Planning Board, and the Zoning Board of Appeals.

Given the pro-development bent at City Hall, the professionals who work for developers – and, the developers themselves – have figured out that they don’t need to exert themselves too strenuously in an effort to meet the requirements of the Green Code. Indeed, the “doctrine of development” has led to a world where projects are filed that require not only multiple variances from the ZBA, but, as with the LeBoeuf proposal, need in excess of 20 such deviations from the criteria set forth in Buffalo’s zoning ordinance.

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This approach leaves residents confused, cynical, and rightfully distrustful of the City of Buffalo’s land use and development process.

It also shows how City Hall has chosen to disregard a quote (attributed to Austrian-born architect Christopher Alexander) that had graced early documents disseminated on behalf of Mayor Brown’s “Green Code”: “Every increment of construction must be done in such a way as to heal the city.”

With All Due Respect,

Art Giacalone

P.S. The Fruit Belt brochure and intensive level survey were commissioned by the Fruit Belt/McCarley Gardens Housing Task Force, overseen and managed by Preservation Buffalo Niagara, funded by the Preservation League of New York State and the Buffalo Niagara Medical Campus. The project consultant on the intensive level survey was Preservation Studios.

Fruit Belt fiction and hypocrisy

Posted by Arthur J. Giacalone on November 11, 2019

Posted in: Buffalo News, City of Buffalo, Development, Fruit Belt, Gentrification, SEQRA. Leave a comment

[A shorter version of this posting was published on-line in the Buffalo News “Another Voice” column on November 10, 2019 under the headline, “Fruit Belt residents deserve moratorium, environmental review.” Here’s the link. Note: The print version on November 11, 2018 omits reference to “moratorium” in its headline.]

BNMC and Fruit Belt map

The November 5, 2019 print version of the Buffalo News contains an opinion by the newspaper’s editorial board under the headline, “Fruit Belt Friction – Residents’ fears of gentrification demand respect, without slowing revival.” [The on-line version, published November 4, 2019, uses the headline, “Editorial: Friction in the Fruit Belt.”]

The editorial board of Western New York’s major newspaper expresses the following perspective:

(1) “gentrification” occurs when high-tech development produces high-dollar jobs, demand for nearby land rises, and real estate prices in the surrounding neighborhoods are suddenly pushed higher;

(2) the fear of Fruit Belt residents, that economic forces beyond their control could upend their lives, is real;

(3) despite the impacts on Fruit Belt residents, gentrification should not be resisted because the “macro effects are overwhelmingly beneficial to the city”;

(4) “the job of government” is to limit the damage of higher tax bills on Fruit Belt residents who cannot afford them, but this task must be performed “without diminishing the possibilities” of rising prices for those who wish to sell their land;

(5) government should not and cannot view gentrification “as an irredeemably destructive force” because “it is, in the end, just another word for renewal,” part and parcel of reviving a neighborhood that has fallen on hard times; and

(6) although “anyone with a beating heart” should acknowledge that the fundamental fear of Fruit Belt residents that their lives could be upended is real, gentrification should not be slowed down.

With all due respect, I find the approach to gentrification reflected in the Buffalo News editorial – an approach embraced by the powers-that-be – to be fiction, rather than fact, and to reveal a thinly disguised hypocrisy towards the low-income residents of the Fruit Belt and other Buffalo neighborhoods.

The Fruit Belt “neighborhood” is not being revived by BNMC-spurred gentrification.

A neighborhood is much more than its physical location. It’s a section of a city defined by its residents, history and distinguishing characteristics. It’s a place where neighbors feel comfortable interacting in familiar surroundings.

It is fiction to suggest that the Fruit Belt neighborhood is being renewed or revitalized by the gentrification that has been occurring as the Buffalo Niagara Medical Campus (BNMC) has grown and expanded eastward.

A “neighborhood” is not renewed or revitalized if its existing residents are being displaced, either directly through significantly higher rents or an exorbitant rise in property taxes, or indirectly when long-time residents decide to move as the departure of family and friends leaves them feeling like strangers in a once familiar setting.

Real estate prices may be rising, and property assessments skyrocketing. New buildings out-of-scale with the existing homes, with residential units too expensive for existing neighbors, may be planned. But true Fruit Belt renewal and revitalization isn’t occurring if the neighborhood is no longer affordable for the residents who call it home, or if the character of the community is altered to the extent that it is no longer recognizable and comforting to the families who have lived there for decades.

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Government agencies have disregarded their obligation to protect Fruit Belt residents from displacement.

Contrary to the position taken in the Buffalo News editorial, the “job of government” goes well beyond limiting the damage of higher tax bills for the Fruit Belt homeowners who can’t afford them.

Each and every time a state or city agency was asked over the years to approve or help finance a development project for the medical campus, they were obligated, pursuant to the State Environmental Quality Review Act (SEQRA), to objectively and thoroughly assess the potential adverse impacts that might result from BNMC growth and expansion. Additionally, they were legally mandated to avoid or reduce the identified adverse impacts “to the maximum extent practicable” by incorporating mitigation measures as conditions to any approval or financing of a project.

It is important to note that SEQRA defines the term “environment” broadly to include, in addition to physical conditions, socio-economic factors such as “existing patterns of population concentration, distribution, or growth” and “existing community or neighborhood character.” As held by our state’s highest court, the “potential acceleration of the displacement of local residents and businesses” is one of the impacts on population patterns and neighborhood character that must be analyzed pursuant to SEQRA whenever a project is proposed. And, the impact must be assessed, not only for the actual parcel of land involved, but for the community in general.

In short, the environmental review mandated by SEQRA placed an obligation on city and state officials to protect Fruit Belt residents beforehand from the “upending of their lives” that might result from BNMC expansion and growth. Disturbingly, government officials have consistently failed to comply with their obligations under SEQRA. Fruit Belt residents have just reason to feel betrayed.

Although the BNMC Board of Directors acknowledged in 2010 that “the transition” between the medical campus and the Fruit Belt neighborhood must be carefully considered, dramatic expansion has occurred without concern for the Fruit Belt.

For a decade-and-a-half, Western New York powerbrokers have allowed virtually unfettered economic development in and around the medical campus to take priority over the quality of life of nearby residents. According to the BNMC, the clinical, research and support space on the medical campus doubled in size from 4.5 million square feet in 2002 – when the Buffalo Niagara Medical Campus, Inc. was formed – to 9.0 million square feet in 2017. During that same time period, the number of employees and students converging on the 120-acre campus grew from 7,000 to approximately 17,000.

IMG_4150 (3) From BNMC’s Report to the Community 2014.

Acknowledging that “the dramatic growth of the campus” far exceeded its initial expectations, the BNMC Board of Directors updated its original 2003 master plan in 2010. Expecting an accelerated eastward expansion of the medical campus, the BNMC board made the following statement in the update: “The transition between the medical campus and the Fruit Belt neighborhood must be carefully considered to take advantage of proximity while also mediating building scale, character and use.”

The 2010 Master Plan Update highlighted a list of “important and necessary initiatives,” which included the preparation of a “campus-wide” Generic Environmental Impact Statement [GEIS] to “establish conditions under which future actions [that is, proposed development projects] would be undertaken.” The GEIS was envisioned by the BNMC board as a neutral platform where information could be gathered and development options and impacts fully and publicly assessed. The City of Buffalo was considered the ideal entity to serve as the “lead agency” in guiding preparation of the GEIS.

Despite the BNMC’s lofty goals and ostensibly sincere concerns regarding the Fruit Belt, the campus-wide GEIS was never prepared. This failure to provide meaningful protections to residents of the Fruit Belt (and, other neighborhoods adjoining the medical campus) is particularly inexcusable given the identity of two members of the BNMC Board of Directors: the Mayor of the City of Buffalo, Mayor Byron Brown, and the City Common Council President, currently Darius Pridgen.

Preparation of the recommended GEIS would have provided an effective vehicle both to publicly and objectively assess the potential that BNMC expansion would result in accelerated displacement of Fruit Belt residents and businesses, and to establish and implement practical conditions to limit such adverse impacts. The need for a campus-wide environmental review is underscored by the dramatic growth of the medical campus in the years following the 2010 update. The new institutions that opened subsequent to 2010 include Kaleida/UB Global Vascular Institute, UB’s School of Medicine and Biomedical Sciences, John R. Oishei Children’s Hospital, Conventus, and the Innovation Center Annex.

Of special interest, due to its proximity to the Fruit Belt, is the opening in 2016 of Roswell Park’s Clinical Science Center at the northwest corner of Carlton Street and Michigan Avenue (a/k/a Harriet Tubman Way)

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Rather than providing an appropriate “transition” at the interface of the medical campus with the Fruit Belt, government decisionmakers allowed Roswell to construct its tallest and most modernistic building at the critical Carlton Street/Michigan Avenue intersection. In doing so, the adjoining neighborhood has been subjected to a structure that contrasts starkly in scale, character and use to the Fruit Belt’s predominately one- and two-story residences.

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To compensate for the years of governmental and institutional neglect, and to prevent additional displacement of Fruit Belt homeowners and tenants, Buffalo’s Common Council should promptly enact a moratorium prohibiting any new construction along the portion of the Fruit Belt near the medical campus while it conducts a meaningful environmental study that identifies mitigation measures to protect residents from the adverse impacts of gentrification.

With All Due Respect,

Art Giacalone

A Citizen’s Guide to Land Use and Zoning Law

Posted by Arthur J. Giacalone on December 22, 2018

Posted in: Citizen's Guide to Land Use & Zoning, City of Buffalo, Development, Erie County, Green Code, SEQRA, Zoning Law. 2 Comments

I was honored this past year when Sam Magavern, as Executive Director of Partnership for the Public Good, asked me if I would be interested in writing a handbook to assist Western New York residents better understand land use and zoning laws, and more effectively express their concerns about proposed projects or changes in land use laws. When Sam approached me, I was well aware of how tirelessly PPG has worked to provide research and advocacy support to community groups and advocates to improve the quality of life and ensure justice throughout the Buffalo Niagara region.

I had some reservations (as I’ll address in a minute), but I took on the task, and PPG published the finished product earlier this week, entitled, “Land Use and Zoning Law: A Citizen’s Guide.” [You can also find the handbook here: environment-_land_use_and_zoning_law_a_citizens_guide ]

Although PPG generously attributes the writing of the guide to me, it was, in fact, a team effort. The final version reflects the evenhandedness and editorial insight of Sam Magavern, as well as the “historic preservation” expertise of Jessie Fisher, Executive Director of Preservation Buffalo Niagara. My sincere thanks to both.

Regarding my reservations, I realized that it would a struggle for me to overcome my skepticism of the zoning and land use process while organizing and drafting the handbook. As I wrote in a July 2018 post following announcement of the Buffalo Billion-related conviction:

“Zoning, land use and construction decisions are made at what I view as the intersection of politics and greed. It’s an unattractive and discouraging place to be if you believe that citizens deserve both an open and fair process, and government officials who truly strive to function lawfully and in a manner intended to benefit society as a whole.”

Much of my perspective and concerns relating to the development process are the result of three decades of dealing with Buffalo City Hall. As expressed in a recent posting regarding a proposed project on Buffum Street near my South Buffalo residence:

“As a lawyer who has spent nearly 30 years representing residents in land use and environmental matters, I have lost virtually all confidence in Buffalo City Hall’s willingness and ability to comply with zoning and environmental review laws.”

Not only has the City of Buffalo failed to consistently apply and enforce its much touted zoning and development law, the “Uniform Development Ordinance” or “Green Code” [one startling example, the Chason Affinity project at Elmwood and Forest avenues], it has managed to render SEQRA, a citizen’s most effective tool, virtually meaningless by its reluctance to require project sponsor’s to prepare draft Environmental Impact Statements. [See my February 2018 post on the virtual extinction of EISs.]

Equally disappointing, when it comes to preserving the Queen City’s historic and architectural heritage, Buffalo’s pro-development and arrogant decision-makers have refused to listen to, or consider, the recommendations of State preservation experts when such advice contradicts a developer’s plans. [See State Historic Preservation office letter re Elmwood/Forest project: SHPO’s 12-19-2016 letter] This myopic stance was tangibly demonstrated in 2017 when, following the “leadership” of Councilmember Joel Feroleto, the Common Council made decisions which led to the demolition of 10 century-old buildings in the Elmwood Village to make room for a massive, incongruous, mixed-development project.

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More recently, this position was formalized, at the urging of Councilmember Christopher Scanlon, in a resolution adopted by Buffalo’s Common Council on October 2, 2018 (in furtherance of Maritime Charter School’s Buffum Street expansion plans): “… As a municipal entity, the Common Council is not required to take advice from or consult with New York State Historic Preservation Office (SHPO) in any way.” [See Common Council Resolution rescinding special use permit 10-02-2018]

Sophisticated and politically-connected developers, emboldened by their lawyers, have learned to work in concert with compliant government officials to circumvent and maneuver through zoning laws and SEQRA requirements. The only way to reverse this tidal wave will be through persistent vigilance and hard work on the part of residents and community advocates.

I hope PPG’s handbook will assist those efforts as we strive to protect and enhance the character and integrity of our neighborhoods and communities throughout Western New York.

With All Due Respect,

Art Giacalone

DEC – enlightened by public comment – partially scales back SEQRA “streamlining”

Posted by Arthur J. Giacalone on May 4, 2018

Posted in: SEQRA, Uncategorized. Leave a comment

There’s some encouraging news to share with anyone who cares about the environment and believes that government decision-making should be well-informed and objective. But there’s also no time for complacency, with a rapidly approaching May 11, 2018 deadline for submitting comments to New York’s Department of Environmental Conservation [DEC] – via email to seqr617@dec.ny.gov – to ensure continued forward progress.

The Good News

As I expressed in a Buffalo Law Journal article a year ago, the DEC – under the pretext of “streamlining” and “updating” regulations implementing SEQRA (State Environmental Quality Review Act) – was about to significantly weaken environmental protections and lessen the public’s role in zoning and land use decision-making.

The proposed regulatory changes issued by the DEC in February 2017 recommended a substantial increase in the categories of so-called Type II actions – the proposed projects and policy changes that do not have to undergo any SEQRA review – from the current 37 to 54. By expanding the list of projects completely insulated from SEQRA review, the DEC’s proposed regulations would likely result in the following impacts:

Decrease the information available to the public, as well as to the government decision-makers, to intelligently assess a proposed project’s potential impacts on the environment;
Reduce the ability of a municipality or a concerned public to objectively consider a proposed project’s specific natural and manmade surroundings, or the existing neighborhood or community character, when determining whether a proposed project may have a negative environmental effect;
Eliminate the obligation of a project sponsor or government agency to systematically consider alternatives and mitigation measures.

But something quite unusual happened in Albany. The DEC allowed itself to be enlightened by the written and oral public comments it received last spring. On April 4, 2018, the revised proposal for amending the SEQRA regulations was revealed. Significantly, the latest iteration of proposed changes reduces the number of new “Type II” categories from 17 to 9. Unless the inevitable push-back by developers and municipal “stakeholders” causes a reversal, the following types of proposed actions will not be treated as “Type II actions” and will still need to undergo environmental review under SEQRA:

– area variance applications to a city, town or village zoning board of appeals [other than the previously-excluded individual setback and lot-line modifications and area variances for one-, two- and three-family residences];

– brownfield clean-up agreements;

– acquisitions of less than 100 acres of land for parkland [although, as revised, an agency’s acquisition and dedication of 25 acres or less of land for parkland, or acquisition of a conservation easement, would be treated as a Type II action and not undergo SEQRA review];

– minor subdivisions;

– installation of cellular antennas or repeaters; and, perhaps most importantly,

– so-called “sustainable development” projects on a “previously disturbed site in the municipal center of a city, town or village”.

SEQRA’s “Cooperative Venture”

The DEC’s revised draft EIS for the proposed amendments to the SEQRA regulations is an excellent example of how the SEQRA environmental review process is intended to function.

More than three decades ago, New York’s highest court, the Court of Appeals, explained that “SEQRA makes environmental protection a concern of every agency [and] insures that agency decision-makers – enlightened by public comment where appropriate – will identify and focus attention on any environmental impact of a proposed action.” [See Jackson v. NYS Urban Dev. Corp., 67 NY2d 400 (1986).] That court accurately characterized the Environmental Impact Statement [EIS] process as “the heart of SEQRA … designed as a cooperative venture, the intent being that an agency have the benefit of public comment” before approving a proposed action. As recognized by our state’s top jurists, “a primary purpose of a [draft] EIS is to inform the public and the public agencies … and to solicit comments which will assist the agency in the decision-making process.”

The public spoke – in the form of hundreds of written and oral comments – and the DEC was enlightened and pulled back on many of its most troubling proposals.

The fact that the SEQRA review process for the proposed regulatory changes worked precisely as envisioned by NY’s legislators when the statute was enacted is more than a bit ironic. The DEC’s February 2017 proposal for “streamlining” and “updating” the SEQRA regulations (which are found at 6 NYCRR Part 617) by significantly adding to the “Type II” list of actions not subject to review under SEQRA was – from my perspective – little more than a capitulation by the DEC and Cuomo administration to pressures from the business community and government officials. These “stakeholders” wished to eliminate what they perceive as two obstacles in the way of proposed development projects: public comment, and the objective information obtained when the SEQRA review process works as intended.

The SEQRA review process has – so far – reduced the number of new “Type II actions,” and, by doing so, has preserved the opportunities for the public to impact future development decisions by exerting the power that accompanies knowledge.

The Need for Immediate Action

With the May 11, 2018 deadline for submitting comments on the Revised Draft Generic Environmental Impact Statement looming near, here are a number of points that I recommend sending to the DEC – via email to seqra617@dec.ny.gov – to ensure protection of NY’s natural and man-made resources and preservation of the public’s ability to enlighten our government decision-makers:

The DEC’s removal of several categories of new Type II actions from the proposed changes to the SEQRA regulations is laudable. The DEC should resist any pressure to reinstate the eliminated categories.
The DEC has made the correct decision to require all future Environmental Impact Statements [EISs] (other than Supplemental EISs) to undergo the “Scoping” process. This proposal will help make certain that future EISs focus on potentially significant adverse impacts, and not irrelevant or non-significant impacts.
The proposed changes to the SEQRA regulations fail to take any steps to reverse the regrettable trend of agencies failing to meet the low threshold for requiring an EIS, the “heart of SEQRA.” As noted in the Revised DGEIS, there are only about 200 EISs being prepared annually statewide – despite the thousands of proposed actions under consideration by the state’s 1,500 local municipalities and the myriad of NYS departments, agencies and authorities obligated to comply with SEQRA. Most troubling for Western New Yorkers, there were ZERO EISs required in 2017 throughout all of Erie County (including the City of Buffalo) and Niagara County, and only two EISs required in 2016 throughout the DEC’s entire six-county Region 9 (including Erie and Niagara counties). The DEC must take effective steps to reverse this trend, and firmly instruct local and state agencies that it is their obligation to “insure that agencies will err on the side of meticulous care in their environmental review,” and not “cut corners and then cure defects only after protracted litigation, all at the ultimate expense of the environment.” [ See New York’s highest court’s decision in King v. Saratoga County Bd. of Supervisors, 89 NY2d 341 (NYCA 1996).] At a minimum, the SEQRA regulations must be amended – perhaps as an introductory paragraph at Section 617.7 (Determining Significance) – to include the language contained in the SEQRA statute at ECL Section 8-0109(2): “All agencies (or applicant as hereinafter provided) shall prepare, or cause to be prepared by contract or otherwise an environmental impact statement on any action they propose or approve which may have a significant effect on the environment.” [Emphasis added.]
To ensure that any proposed action that may have a significant adverse impact on any one or more aspects of the environment undergoes the SEQRA review process, the DEC should follow the “no action” alternative and eliminate the remaining proposed additions to the Type II actions list.

With All Due Respect,

Art Giacalone

The “Heart of SEQRA” – the Environmental Impact Statement – at the verge of extinction

Posted by Arthur J. Giacalone on February 12, 2018

Posted in: Andrew Cuomo, City of Buffalo, Development, SEQRA, SolarCity. 2 Comments

[A version of this post is published at page 8 of the print and digital version of the February 14-20, 2018 edition of “The Public” under the headline, “The Endangered Environmental Review”: https://issuu.com/dailypublic.com/docs/public_y18w7web. Once again, my thanks to Geoff Kelly, the publication’s editor-in-chief, for extending the reach of this humble blog.]

ZERO. That’s the number of times during the entirety of 2017 that a city, town, village, industrial development agency, school district, or any other local government agency in ERIE COUNTY issued a “Positive Declaration” and required preparation of an Environmental Impact Statement (EIS) under the State Environmental Quality Review Act (SEQRA) prior to approving a proposed development project, enacting a new law, or adopting a change in land use policy.

ZERO. That’s also the number of times in 2017 a local government agency in NIAGARA COUNTY issued a “Positive Declaration” and required preparation of an EIS for a proposed project or law.

As a matter of fact, a review of the Environmental Notice Bulletin [ENB] – published by the New York State Department of Environmental Conservation [DEC] – reveals that during 2017 only TWO Positive Declarations requiring a proposed action to undergo the EIS environmental review process were issued for proposed projects and laws in the six counties comprising DEC’s Region 9 – Allegany, Cattaraugus, Chautauqua, Erie, Niagara, and Wyoming counties. [See here and here.]

CCI021218

And it’s not only the hundreds of local agencies in the six-county “Region 9” area that spent an entire year without requiring a project sponsor – including the government entities themselves – to prepare an Environmental Impact Statement. Not one New York State agency issued a Positive Declaration during 2017 for an action proposed for Region 9’s six counties. Not the NYS Office of Parks, Recreation and Historic Preservation. Not the NYS Urban Development Corporation/Empire State Development. Not even the DEC, the state department entrusted with the duty of promulgating SEQRA regulations and protecting NYS’s environment and its human and community resources. [Click here for my compilation of DEC Region 9 – 2017 SEQR and Other Notices]

The EIS is accurately characterized by NY’s courts as “the heart of SEQRA.” It is a document which provides government agencies, the project sponsor, and the public a means to systematically consider potential environmental impacts, alternatives to a proposed action, and appropriate mitigation measures to eliminate or substantially reduce adverse impacts. Whenever a proposed project or policy – referred to by SEQRA as an “action” – may have the potential for one or more significant adverse environmental impact, the SEQRA mandates that the “lead agency” issue a “Positive Declaration” and require preparation of a draft EIS.

But the letter and spirit of SEQRA are being avoided – not followed – by local or state agencies. For example, the desire of the City of Buffalo to be “developer friendly” and place virtually every land use project on a “fast track” to approval has led even the most conscientious member of the city’s Planning Board – Cynthia Schwartz – to apologize to a developer’s lawyer during a public hearing for even mentioning her belief that a massive project on the shore of Lake Erie needed an EIS.

And it doesn’t matter how large a proposed project is, or how sensitive ecologically the site of the proposed development may be. In 2014, Gov. Andrew Cuomo’s administration – with the College of Nanoscale Science and Engineering serving as “lead agency” – allowed construction to proceed at the 90-acre, nearly one-million square-foot manufacturing and research and development complex at South Buffalo’s RiverBend site without preparation of an EIS. This glaring disregard of SEQRA’s requirements occurred despite the project’ location along the Buffalo River’s highly sensitive “Area of Concern” (AOC), one of the most toxic hotspots in the Great Lakes region.

Innovation Hub model

Given the State’s approach to the Riverbend project, it’s not surprising that the Governor’s economic development engine, Empire State Development, concluded in April 2017 that an Environmental Impact Statement wasn’t needed for the proposed Athenex Manufacturing Project in the Chautauqua County Town of Dunkirk. After all, how could there possibly be a potential adverse impact to the environment when clearing a 33.5-acre site near Lake Erie and constructing a 40-foot high, 320,000-square-foot pharmaceutical manufacturing facility housing manufacturing, warehouse, laboratories, office and central utilities spaces?

The paucity of EISs should be troubling to anyone who cherishes NY’s natural and manmade resources, who believes that our government officials and agencies are obligated to objectively and fairly comply with state law, or who believes that zoning, land use, and development decisions should be made by fully-informed agencies following meaningful public scrutiny and review.

With All Due Respect,

Art Giacalone

Fight to stop Queen City Landing’s 23-story tower continues

Posted by Arthur J. Giacalone on May 30, 2017

Posted in: City of Buffalo, Development, Gerald A. Buchheit Jr., SEQRA, Waterfront. Leave a comment

On May 30, four City of Buffalo residents – Margaret Wooster, Jay Burney, Lynda K. Stephens and James E. Carr [referred to as the “Wooster Appellants”] – continued their legal battle challenging the procedures and quality of the city’s environmental review for the 23-story glass-and-steel tower proposed for the site of the former Freezer-Queen facility on Buffalo’s Outer Harbor.

Bird's Eye View from Fuhrmann Blvd.

As lawyer for the Wooster Appellants, I served a “Motion to Reargue” asking the Appellate Division, Fourth Department, to reconsider its May 5, 2017 “Memorandum and Order” which affirmed the lower court’s dismissal of my clients’ lawsuit. [Click here to read the Appellate Division’s decision with my “sticky notes”: Wooster-Riverkeeper Annotated 05-05-17 AD4 Decision.]

The Motion to Reargue alleges that the appellate court “overlooked or misapprehended” a number of legal and factual points when it rendered its May 5th ruling. You can read the arguments raised on behalf of the Wooster Appellants in the following document: AD4 – Wooster REARGUE Supporting Affirmation.

The Appellate Division, Fourth Department – which is the intermediate state appeals court serving the Western New York area – will rule on the motion (including whatever papers it receives on behalf of the project sponsor, Queen City Landing, LLC, and the City of Buffalo) on or after June 12, 2017.

With all due respect,

Art Giacalone

With All Due Respect

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