Zoning Law

Buffalo’s Green Code Prohibits Cannabis Cultivation Facilities

Posted by Arthur J. Giacalone on April 8, 2021

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

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

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

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

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

[Click on an image to enlarge it.]

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

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

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

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

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

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

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

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

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

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

6.1.7 Agriculture

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

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

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

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

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

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

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

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

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

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

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

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

6.1.6 Employment

…

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

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

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

With All Due Respect

Art Giacalone

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

Posted by Arthur J. Giacalone on February 6, 2021

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

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

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

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

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

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

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

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

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

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

With All Due Respect,

Art Giacalone

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

Dear Common Council Members and Planning Board Members:

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

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

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

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

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

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

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

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

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

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

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

Thank you for your thoughtful consideration of these comments.

Sincerely,

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

“Frequent Critics” Needed at Buffalo City Hall

Posted by Arthur J. Giacalone on October 3, 2020

Posted in: B-N Medical Campus, Buffalo News, City of Buffalo, Development, Environmental Justice, Fruit Belt, Gentrification, Green Code, Jonathan D. Epstein, Zoning Law. 2 Comments

Foolish me.

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

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

“September 19, 2020

Re: Chilling effect on public’s expression of concerns

Dear Everybody’s Column,

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

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

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

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

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

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

Sincerely, Arthur Giacalone“

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

Here’s the first picture:

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

And here’s a short version of the story.

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

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

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

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

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

With All Due Respect,

Art Giacalone

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

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

Posted by Arthur J. Giacalone on June 19, 2020

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

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

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

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

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

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

IMG_4185 (3)

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

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

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

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

Here are the relevant figures:

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

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

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

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

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

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

IMG_5376 (2)

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

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

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

With All Due Respect,

Art Giacalone

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

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

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

Buffalo’s Planning Board and Public are owed a balanced Staff Report on Buchheit’s QCL project

Posted by Arthur J. Giacalone on January 20, 2020

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

[On January 13, 2020, Mayor Byron Brown’s Office of Strategic Planning (OSP) provided its “Staff Report” – transcribed in its entirety below – regarding Gerald Buchheit’s proposed 20-story tower to the City Planning Board shortly before the opening of the board’s meeting. The Planning Board was scheduled to determine – without public input – three important matters relating to Queen City Landing’s proposed Planned Unit Development (PUD)/rezoning application at 975-1005 Fuhrmann Blvd.: first, recommend to the Common Council whether to approve or disapprove the proposed PUD; second, render its SEQRA “Determination of Significance” deciding whether to require the applicant to prepare a draft Environmental Impact Statement or end the environmental review; and, third, conduct a “Consistency Review” to determine if the proposed project complies with the goals and objectives of the City’s Local Waterfront Revitalization Program (LWRP).

In theory, the staff report is intended as an objective assessment of the proposed project by the city’s planning office professionals. From my experience, the report is heavily relied upon by Planning Board members as they review a pending application, and it often forms the bases for the board’s “findings of fact” on a pending application.

It is clear to me that staff report on the QCL project is not a balanced assessment of the PUD application. To help correct that deficiency, I will annotate the “staff report” below to provide additional information or perspectives not shared by the OSP staff with the Planning Board members. To limit any confusion, the text of the staff report will be underlined below. My bracketed and italicized comments will follow each paragraph of the staff report.

For the record, I have opposed (see, for example, Giacalone Letter to Common Council 01-02-20), and have assisted environmentalists and Outer Harbor activists in opposing, the various iterations of Mr. Buchheit’s Queen City Landing tower projects. Thanks. Arthur J. Giacalone, Attorney-at-Law and South Buffalo resident.]

CITY OF BUFFALO

PLANNED UNIT DEVELOPMENT

Property Location/Name: Queen City Landing (975 Fuhrmann Blvd.)

Proposed Use: Mixed Use building

Existing Zoning: N-1S Secondary Employment center/C-W Waterfront corridor

Surrounding Zoning: N-1S, D-OG (Open Space – Green)

Existing Land Use: Vacant land

Surrounding Land Use: Vacant land, park, marina

Action Requested: Planned Unit Development

Date of Public Meeting: January 13, 2020

Summary

The proposed project includes the development of a 20-story mixed use building on the former Freezer Queen industrial site along the Lake Erie waterfront. The project includes 35,000 SF of restaurant, retail, and commercial space on the ground floor, structured parking on floors two through five, 19,000 SF of restaurant/banquet space of [sic] the sixth floor, and 206 residential units above the sixth floor. In addition, the site will include a ground floor waterfront terrace, surface parking, public bike and walking paths that connect [with] the existing multi-use waterfront trail along Fuhrmann Blvd., as well as a public marina.

[- The proposed 54,000 SF of restaurant, retail, commercial and banquet space more than triples the 16,615 SF of non-residential space approved in 2016/2017.

– To accommodate the increased commercial/non-residential activities, the 2019 project proposes a 61% increase in total parking spaces – from 355 to 572 – including a doubling in surface parking spaces from 111 to 222-vehicles, requiring a surface parking lot covering more than an acre-and-a-half of land.

– The number of residential units has increased from 198 to 206.]

Background

The City previously approved a plan for a 23-story building in May 2016 (the current plan reduces the building height by three stories/48 feet, integrates the stand along [sic] parking structure into the principal building, reduces the building footprint and impervious coverage of the site, while increasing the green space).

[- The 2016 and 2017 approvals of the prior project were approved under the former zoning ordinance. Pursuant to Section 511-151 (“Limitations on approval”) of the former code, the Planning Board’s January 3, 2017 amended site plan approval was rendered invalid when the applicant failed to obtain a building permit and commence construction within one year of the site plan’s issuance. In accordance with UDO Section 1.3.3B (“Previously Granted Approvals”), the project’s previous approval is revoked, and the provisions of the UDO govern.

– While the combined footprint of the 3-story standalone parking garage plus the 23-story tower approved in 2016 is smaller than the footprint of the proposed structure, the footprint of the proposed structure is twice the footprint (width-times-the-length) of the previously approved tower (approx. 34,800 SF vs. approx. 17,480 SF), the proposed structure is 100 feet longer than the 2016/2017 version (290’ vs. 190’), and the gross floor area of proposed structure is 67,000 SF greater than the 23-story tower.

– If the applicant’s FEAF is correct, the decrease in impervious surfaces is less than one-seventh of an acre (0.14 AC), from 3.88 AC to 3.74 AC. However, if QCL’s Nov. 2019 site plan is accurate when it identifies the impervious area as 3.85 AC, the decrease is only 0.03 AC.

– As a result of the significantly larger footprint of the proposed building, and the doubling of service parking spaces, the increase in greenspace/pervious areas is less than one-seventh of an acre (0.14 AC).]

Consistency with the Comprehensive Plan

Standard 1: The planned unit development is consistent with the spirit and intent of this Ordinance and the Comprehensive Plan.

Analysis: The proposed project is consistent with the Comprehensive Plan’s policy of Transforming Buffalo’s Economy and specifically its priority to clean up and redevelop brownfield sites. In addition, the project may align with the Comprehensive Plan’s policy to Restore Ellicott, Olmstead, and the Waterfront, specifically its priority to reconnect to the waterfront by improving waterfront access and leveraging waterfront assets for appropriate economic development. However, there is some public sentiment that residential development on the Outer Harbor is inappropriate but the use of the site as mixed use is allowed by right.

[- In 2006, the Common Council adopted “Buffalo’s Comprehensive Plan – Queen City in the 21^st Century.” It was based on “a set of key principles”: sustainability, smart growth , and two simple rules, “fix the basics” of municipal service delivery and maintenance of the urban environment, and “build on the assets” of the community and great urban heritage. It can be argued that the PUD application is inconsistent with most, if not all, of these key principles.

– It may be a stretch to claim that the proposed project is consistent with the Comprehensive Plan’s policy of “Transforming Buffalo’s Economy.” T he full statement of the policy is as follows: “3. Transform the city’s economy to meet the needs and opportunities of the 21^st century and to provide the material basis for the revitalization of the whole city.” The proposed PUD’s combination of residential units, retail, and restaurant/banquet space is hardly transformative, or focused on the city’s 21^st century needs and opportunities.

– The UDO defines the city’s comprehensive plan as much more than any one document (as implied by the staff report’s reliance on a single policy from the 2006 “Queen City in the 21^st Century”): That is, “Comprehensive plan. The materials, written and/or graphic, including maps, charts, studies, resolutions, reports, and other descriptive materials that identify the goals, objectives, principles, guidelines, policies, standards, devices, and instruments for the immediate and long-range protection, enhancement, growth, and development of the City of Buffalo, which have been adopted and may be amended by the City in accordance with the General City Law.” The UDO itself, and Buffalo’s LWRP (Local Waterfront Revitalization Program) fall within this definition of the city’s comprehensive plan.

– A strong argument could be made that the PUD application is inconsistent with numerous policies and objectives set forth in Buffalo’s LWRP, including, for example:

– Protect and enhance features which contribute to the LWRA’s scenic quality (such as marinas, piers, wharfs, sunsets, and unique waterfront landscapes).

– Protect significant fish and wildlife coastal habitats (Small Boat Harbor, Tifft Nature Preserve, and Times Beach Nature Preserve).

– Protect the Niagara River Globally Significant Important Bird Area.

– Avoid disruptions to bird migration by the maximum extent practicable.

– Maximize coastal resiliency.

– Consider potential impacts of climate change on Buffalo’s coastal area.

– Minimize property damage and risk to humans from flooding and erosion.

– Maintain and protect shoreline protective features.]

The proposed PUD is located within the UDO’s N-1S Secondary Employment zone. Per the UDO, the N-1S zone addresses “mixed use employment centers primarily located along the New York Central Belt Line, often defined by mid-rise and large footprint industrial structures.” While the proposed PUD is consistent with the N-1S zone’s call for intensive mixed-use development, it should be noted that the site is not located along the Belt Line and its context is not defined by mid-rise industrial buildings (though the site once contained such a structure).

[- When determining whether the proposed construction of a 20-story building at 975/1005 Fuhrmann Blvd. is inconsistent with the spirit and intent of the UDO, one cannot overlook the fact that the following standards were established by the Common Council for the N-1S zoning district: the exclusion of “Tower” as a permitted building type; and, the 6-story and 90-foot height limited for the allowed building types, “loft building” and “civic building.” More broadly, the UDO’s exclusion of “towers” from all districts other than N-1D (the downtown district) reflects an intent to exclude buildings of the proposed 20-story structure’s substantial height and density from the N-1S and all districts other than N-1D.

– “Building Type” is not among the regulatory categories that an applicant may apply to waive or modify under the UDO’s PUD provisions. As noted, a tower is a building type not permitted in the N-1S zone. The public has strongly questioned whether the applicant’s characterization of its 20-story building as a “loft” is an improper effort to circumvent the UDO’s prohibition against constructing a tower in the N-1S zone, and the Common Council’s lack of authority to waive a” building type” restriction when establishing a PUD. It should be noted that, under the UDO, the maximum height allowed for a loft building in any zone is 6 stories, and the applicant’s proposed 20-story “loft” lacks the following features associated with lofts: naturally lit, tall ceilings, expansive windows, and light wells.

– It should also be noted that the applicant’s architect, Duncan Bates, referred to the proposed structure as a “residential tower” when testifying at the January 14, 2020 public hearing before Common Council’s legislative committee.]

Land Use

Standards (sic). 2. The planned unit development allows for the creative and innovative development of property that would otherwise not be possible through strict application of the standards of this Ordinance. 5. The planned unit development will maximize transportation efficiency. 6. Whether the planned unit development will provide for public benefits not otherwise required by this Ordinance. 7. The planned unit development will be sufficiently served by or provide services, utilities, and infrastructure as required by the Buffalo Sewer Authority, Buffalo Water Board, Department of Public Works, Parks, and Streets, and Fire Department.

Page 1 of 2

Analysis: The proposed PUD allows for additional building height in order to take advantage of the vast waterfront views, while incorporating a mix of uses including restaurant, retail, and other commercial activities which would likely serve as a waterfront attraction. The waterfront site is accessed by one road and would generally require automobile access due to limited transportation alternatives in the area most of the year. The applicant states the public benefit includes public pathways which will connect to the existing multi-use pathway along Fuhrman (sic) Boulevard and will loop around the proposed building which would provide additional public waterfront access. The project also proposes a public marina and a waterfront terrace at the ground level as a public benefit or amenity. As stated in the previous (sic) adopted negative declaration the proposed PUD will be sufficiently served by or provide services, utilities, and infrastructure as required by the Buffalo Sewer Authority, Buffalo Water Board, Department of Public Works, Parks, and Streets, and Fire Department though additional extensions may be required to service the site.

[- The proposed PUD does not appear to offer “creative and innovative development” of the parcel, and differs little conceptually from the project approved under the old zoning ordinance. Combining residential, retail and restaurant/event space in the same building is hardly creative or innovative when each of the uses is permitted in the N-1S zone, and the concept of “mixed-use” buildings is a cornerstone of the UDO/Green Code.

– The applicant’s Letter of Intent states that the sixth-story restaurant/banquet space will provide guests “with spectacular views of the waterfront,” and “will impress guests with a unique and picturesque experience.” Given the scenic waterfront views available from the sixth floor, it appears that occupants of floors 7 through 20 could be afforded notable waterfront views without being located on land situated in close proximity to the Lake Erie shoreline.

– The PUD proposal fails to offer the noteworthy types of public amenities listed in the UDO, such as affordable housing units, below-market commercial incubator space, green building systems, adaptive reuse of heritage resources, reserved or dedicated open space, accessible building and site exceeding USAB minimum standards, use of renewable energy sources, water conservation and reuse, or restoration of natural features. Also, the Brownfield cleanup of the site occurred prior to the proposed PUD application, and, therefore, would not be a product of the creation of the PUD.

– The applicant does not dedicate any part of the site to public use, but is merely allowing the public to bike or walk on its multi-use path and use its boat slips. These same amenities – a bike/walking path looping around the principal building, and 300 feet of boat slips – were part of the 2016/2017 project. There appears to be no reason that they could not be a part of a project under the UDO without creation of the requested PUD.

– It is difficulty to suggest that the proposed PUD would “maximize transportation efficiency” when the site would generally require automobile access due to limited transportation alternatives in the area most of the year. The applicant’s TDMP describes the project site as “Car-Dependent” with “Almost all errands requiring a car” and a “Walk Score” of 1 on a scale of 0 to 100 (with 100 representing the highest rated location), and as “Minimal Transit” with a “Transit Score” of 21 out of 100. While “it is possible to get on a bus,” the closest bus stop is near the Small Boat Harbor, and no current bus route is available to stop at the project site.]

Compatibility

Standard 3. The planned unit development will be compatible with, and not impede the normal and orderly development and improvement of, adjacent property. 4. The planned unit development will promote a coordinated site and building design to enhance the relationship of buildings to public space, the interconnectedness of rights-of-way and blocks, and social vitality.

Analysis: Much of the surrounding area is zoned for Open Space and will therefore have very limited development. The provision of residential adjacent to open space could provide a built in constituency and user group for the open space or could potential (sic) create conflicts depending on the use of the open space. The project will provide public access pathways along the waterfront that will connect to nearby waterfront attractions via the existing multi-use waterfront trail. A public marina will be incorporated, providing a public amenity. Although the PUD shows how the site would relate to the public right-of-way it lacks detail about the development of the rest of the peninsula which could help to determine if the entire parcel will be developed in a coordinated manner.

Page 2 of 2 [End of Staff Report]

[- Strong public sentiment has been expressed that the fact that much of the surrounding area is zoned for – and, actually used as – open space, marinas, parks, etc., underscores the incompatibility of the proposed project with nearby property. Note that under the UDO, “a new tower may not cast new shadows upon any D-OG, D-OS, or D-ON zone from 12 noon to 2 pm on September 21.” The adjacent Small Boat Harbor is zoned D-OG (Green).

– There is a stark contrast in size, scale, and character of the proposed PUD building to adjacent and nearby structures, and the nature of the nearby parks, marinas, walkways, piers, etc. The applicant has not provided tangible visual assessments, such as graphic viewshed and line-of-sight analyses, or more sophisticated visual simulations and digital viewshed analyses, from any of the potentially impacted areas of the Lake Erie shoreline, to facilitate an objective assessment of the proposed project’s impacts on the existing character and scenic quality of the Local Waterfront Revitalization Area.

– It appears that the vehicular traffic generated by the proposed project would impede the normal and orderly use of the adjacent public bike/pedestrian path. If we use the TDMP’s “baseline site generated trips” figure of a total of 346 vehicle trips during the weekday PM peak hour, a vehicle entering or exiting the project site will be crossing the adjoining public bike/pedestrian path once every 10.4 seconds. If one were to treat the “modal share objective travel demand” figure of 267 vehicle trips entering or exiting the project site during the weekday PM peak hour as realistic, 267 vehicle trips per hour translates to one vehicle crossing the adjoining bike/pedestrian path every 13.4 seconds.

– The popularity of the Outer Harbor for a wide variety of outdoor activities, and the frequency of bumper-to-bumper traffic on Fuhrmann Blvd. and full parking lots when events are held there, suggest that its open space and facilities are not being underutilized. The applicant has not addressed the impacts during the 18-month projected construction period of construction-related vehicles on either the adjoining street or public bike/pedestrian path.

– There is strong public sentiment that proposing a one-building PUD on 8 acres of the site, while the applicant acknowledges that it has no redevelopment plans for the site’s remaining 12 acres, contradicts the UDO’s intent that a PUD be a “planned” and “unified” development. Allowing the applicant to belatedly submit a proposed “plan” for the rear 12 acres could weaken the UDO’s objectives of creating a planned and coordinated PUD district. ]

With All Due Respect,

Art Giacalone

P.S. Below is a rendering of the QCL proposal, followed by some photos of the Outer Harbor shoreline, paths, marinas and parks.

QCL 2019 rendering

DSCN6689

DSCN7639

Jonathan Epstein perfects press-release journalism with Buchheit article

Posted by Arthur J. Giacalone on January 12, 2020

Posted in: Buffalo News, City of Buffalo, Development, Gerald A. Buchheit Jr., Jonathan D. Epstein, Waterfront, Zoning Law. Leave a comment

[Disclosure: I represented a group of environmentalists and Outer Harbor activists in 2016-2018 challenging Gerald Buchheit’s 23-story version of the Queen City Landing project, and continue to express my opposition to QCL’s plans for 975-1005 Fuhrmann Blvd. See, for example, Giacalone Letter to Common Council 01-02-20.]

What does Western New York’s biggest newspaper do two days before a public hearing on the controversial Queen City Landing project on Buffalo’s Outer Harbor?

Does it present an objective piece reflecting the pros and cons of the project? No.

Does it explain what a “Planned Unit Development” [PUD] is, and explore the reasons that the request by Gerald Buchheit, QCL’s owner, to create a PUD at the Fuhrmann Blvd. site is considered a distortion of the PUD concept by a variety of Buffalonians? [See for example, Sam Magavern’s Queen City Landing letter 01-09-20] Absolutely not.

Of course, taking one of these approaches would actually be considered journalism.

Instead, we, the public, are subjected to excruciatingly one-dimensional piece by Jonathan D. Epstein, the Buffalo News business reporter. His “reporting” is little more than a propaganda piece for the developer. While Jonathan may not have literally inserted his name on a Queen City Landing press release, he may as well have. [Here’s the article.]

IMG_4433 (2)

[Note: Mr. Epstein has even stopped calling the proposed 20-story tower a tower, and is following QCL’s lead and just referring to it as a building. He’s certainly well trained.]

QCL 2019 rendering

If a Pulitzer Prize were given for “press-release journalism,” I would not hesitate to nominate Jonathan’s January 12, 2020 article.

By the way, the only opportunity for the public to speak to the decision-makers regarding Buchheit’s proposed PUD will be the public hearing before the Common Council’s Legislative Committee on Tuesday, January 14, 2020 at 1:00 P.M. in the 13th-floor Common Council Chambers, Buffalo City Hall. If you’re interested, please be there.

With All Due Respect,

Art Giacalone

It’s not a Tower – it’s a 20-Story Loft – and other QCL Tall Tales

Posted by Arthur J. Giacalone on January 2, 2020

Posted in: City of Buffalo, Development, Gerald A. Buchheit Jr., Green Code, Jonathan D. Epstein, South Buffalo, Waterfront, Zoning Law. Leave a comment

I’d like to share with you a letter that I mailed on this second day of 2020 to our nine City of Buffalo Councilmembers (including the newest legislators, Lovejoy District’s Bryan Bollman, and Fillmore District’s Mitchell Nowakowski – Congratulations gentlemen!).

Among the myriad issues raised in my correspondence is the following nugget regarding Queen City Landing’s efforts to characterize its latest proposal as a 20-story “loft”:

G. Throughout QCL’s 2016/2017 application process, site plan documents consistently and accurately referred to the main structure proposed for the 975/1005 Fuhrmann Blvd. parcel as a “23-STORY TOWER.” Now, curiously, QCL refuses to use the dreaded “T-word” – TOWER when describing its proposed 20-story building. The reasons for the change in nomenclature are obvious, despite the fact that what is being proposed here is unquestionably a tower: First, a tower is a “building type” which is not allowed in the N-1S district. And, most importantly, under the Green Code, the Common Council lacks the power to waive “Building Type” requirements when establishing a PUD. So we have Buchheit’s proposed 20-story tower now masquerading as a 20-story “loft building”.

QCL 2019 rendering QCL’s 2019/2020 proposed 20-story tower.

Bird's Eye View from Fuhrmann Blvd. QCL’s 2016/2017 23-story tower

For the record, not even Buffalo News business reporter Jonathan Epstein was fooled by QCL’s less-than-lofty sleight-of-hand, referring a number of times to the newly proposed “tower” in his 11/18/19 article that announced Queen City Landing’s most recent proposal for the site of the former Freezer Queen facility.

You can peruse my letter here, Giacalone Letter to Common Council 01-02-20, and also review the chart accompanying my correspondence where I compare side-by-side QCL’s latest redevelopment plans for 975-1005 Fuhrmann Blvd. with both the 23-story tower plan approved in 2016/2017 and the requirements of Buffalo’s Green Code (officially known as the Uniform Development Ordinance or UDO), Chart Comparing QCL 2017 v. 2019 v. UDO 12-30-19.

Or you can check out the chart, as well as the pages of the January 2, 2020 letter, below:

QCL Comparison Chart 01-02-2020.JPG

AJG Letter to Common Council p1.JPG

AJG Letter to Common Council p2.JPG

AJG Letter to Common Council p3.JPG

AJG Letter to Common Council p4.JPG

AJG Letter to Common Council p5.JPG

With All Due Respect,

Art Giacalone

Buffalo’s Green Code catches up with Buchheit’s QCL tower

Posted by Arthur J. Giacalone on December 9, 2019

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

[Full disclosure: On December 9, 2019, I filed a letter with the City of Buffalo’s Planning Director/Zoning Administrator, Nadine Marrero, on behalf of myself and four City of Buffalo residents and environmental activists, regarding Queen City Landing, LLC’s latest proposal for the former Freezer Queen property on Buffalo’s Outer Harbor. You can read that letter (minus the documents accompanying it) here: Giacalone Letter to Zoning Administrator 12-09-19.]

Gerald Buchheit was in a hurry, it seemed, back in 2016 and early 2017, to obtain all the zoning-related approvals he needed for his 23-story, mixed-use project proposed for Buffalo’s Outer Harbor. And City Hall’s bureaucrats and elected officials were more than willing to accommodate him, by scheduling public hearings before Buchheit’s submissions were complete, proceeding without the thorough environmental assessment that (theoretically) accompanies an Environmental Impact Statement, etc., etc.

Bird's Eye View from Fuhrmann Blvd.

Why the rush? Buchheit’s team needed to have an approved project in place before the long-awaited “Green Code” – known officially as the Uniform Development Ordinance [UDO] – was enacted by Buffalo’s Common Council, signed by Mayor Byron Brown, and placed into effect.

While the developer wished to build Buffalo’s tallest residential tower – in the midst of an important migratory bird pathway, adjacent to the Small Boat Harbor , and in close proximity to the ecologically significant-but-fragile Lake Erie shoreline – the Green Code had a very different vision for the former Freezer Queen site at 975/1005 Fuhrmann Blvd.: the “N-1S” zoning designation for that property would not only prohibit construction of a tower, it would limit the height of the allowed “building types” to a maximum of six stories.

Buchheit and his team won the sprint to the finish line. QCL obtained all of the zoning and planning approvals that he needed for his 23-story mixed-use tower prior to the April 3, 2017 effective date of the Green Code/UDO. [The last of those approvals – the City Planning Board’s approval of a Final Subdivision Plat – was granted on March 13, 2017, just three weeks before the UDO went into effect.]

So Buchheit had managed to avoid the much stricter requirements for the former Freezer Queen project. But, whether or not he knew it, the need to remain steadfast was not over.

Included among the approvals granted to QCL under the former Zoning Ordinance was the City Planning Board’s January 3, 2017 resolution granting QCL’s Amended Site Plan application. [That’s the same day Mayor Brown signed the Green Code/UDO into law with a provision delaying the effective date of the city’s new zoning ordinance to April 3, 2017.]

Chapter 511 of the City Code placed an important restriction on a developer who burdens the city officials – and, the public – with proposals to construct a project. More specifically, Section 511-151 of the prior Zoning Ordinance, entitled, “Limitations on approval,” states:

Section 511-151. Limitations on approval. No design and site plan approval shall be valid for more than one year from the date of issue, unless a building permit is issued and construction has actually begun within that period and is commenced within that period.

The one-year anniversary of the Amended Site Plan approval occurred on January 3, 2018 (as a matter of fact, we are fast approaching the passage of three years from the date the City Planning Board issued its design and site plan approval for QCL’s 23-story tower at the former Freezer Queen site).

According to the City’s Office of Permit and Inspection Service, QCL has never applied for, much less obtained, a building permit to construct the 23-story tower subsequent to its receipt of the January 3, 2017 Amended Site Plan approval. Therefore, pursuant to Section 511-151, QCL no longer has a valid design and site plan approval for the 2016/2017 project.

Not surprisingly, the Green Code/UDO specifically addresses, at Section 1.3 (Transition Rules), the manner in which projects which had been granted approvals prior to the April 3, 2017 effective date of the UDO are to be treated. Generally, such projects may proceed in accordance with the previously granted approvals. However, at Section 1.3.3B, the UDO expressly revokes a prior approval “if the applicant fails to act before any approval expires,” and instructs that the provisions of the UDO then govern. More specifically:

1.3.3 Previously Granted Approvals

… B. If the applicant fails to act before any approval expires, including any periods of extension granted, the provisions of this Ordinance govern and the previous approval is revoked.

As a result of the above-quoted zoning provisions, Queen City Landing, LLC, no longer possess a valid design and site plan approval to construct the previously approved 23-story project. And, of even greater significance, the standards and requirements of the Green Code/UDO now govern both the project approved by the City of Buffalo in 2016/2017, and the latest “vanity project” Buchheit has proposed for 975/1005 Fuhrmann Blvd., a 20-story apartment/condominium/event/banquet facility.

Under the UDO, a developer is required to select a “building type” that is allowed to be constructed within the zone where a proposed project is to be located, and the project must comply with the standards for that building type. The UDO’s “TABLE 3A: BUILDING TYPES” identifies which building types are permitted in each zoning district.

IMG_4306 (3)

As set forth in Table 3A, the only building types permitted in an N-1S zone – which is 975/1005 Fuhrmann Blvd.’s zoning classification – are “Attached House”, “Civic Building”, “Flex Building”, and “Loft Building”. A “Tower” is a building type that is not “permitted” in an N-1S zoning district.

Additionally, as noted above, a review of the pertinent sections of the UDO indicates that the maximum number of stories allowed for any of the four building types permitted in an N-1S zone is six stories. (See UDO Section 3.2.2E (Attached House, max. 4 stories, 52’); Section 3.2.4E (Civic Building, max. 6 stories, 90’); Section 3.2.7E (Flex Building, max. 1 story); and, Section 3.2.8 (Loft Building, max. 6 stories, 90’).

Clearly, Buchheit’s latest plan – a 20-story mixed-use project – is stunningly inconsistent with the Green Code/UDO’s vision for 975/1005 Fuhrmann Blvd.

QCL 2019 rendering

And it is also totally out of character with the current and envisioned uses of the Outer Harbor.

LWRP map detail rec areas - LEGEND

Accordingly, at a minimum, the 2019 QCL project requires not only design and site plan review by the City Planning Board, but also substantial variance(s) from the Zoning Board of Appeals.

Two final thoughts for now, regarding the justifications Mr. Buchheit’s team has apparently expressed in an attempt to explain their lengthy delay in proceeding with QCL’s plans for an Outer Harbor tower.

First, an article published in the November 19, 2019 Buffalo News, written by business reporter Jonathan Epstein, reports that , “Construction has been delayed as lawsuits over the project’s approvals moved through the court system.” In fact, litigation challenging the city’s approvals for QCL’s 23-story tower project ended nearly a year-and-a-half ago, on June 29, 2018, when the Appellate Division, Fourth Department, issued its order dismissing the appeal in Wooster et al. v. Queen City Landing, LLC, et al. Here’s a copy of the appellate court’s order:

IMG_4302 (2)

Second, the 11-19-19 Buffalo News article also mentions that QCL used the intervening time “completing remediation at the site.” However, it was twelve months ago, December 14, 2018, that the NYS Department of Environmental Conservation issued its “Certificate of Completion” for QCL’s Brownfield Cleanup Program. Here’s the DEC’s “Summary of Project Completion Date”:

IMG_4303 (2)

With All Due Respect,

Art Giacalone

With All Due Respect

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