Hook & Ladder’s brewery plan should be promptly extinguished

Posted by Arthur J. Giacalone on October 31, 2019
Posted in: Cazenovia Park, City of Buffalo, Development, Green Code, Olmsted Parks, South Buffalo, Zoning Law. Leave a comment

[Note: An abbreviated version of this posting was published as a letter-to-the-editor in the Buffalo News “Everybody’s Column” on October 31, 2019. You can read it here.]

Jonathan D. Epstein, the business reporter at the Buffalo News, must have experienced a really slow news day in mid-October.  Or, perhaps, Jonathan decided to do a favor and float a trial balloon for the three local firefighters – John Otto, Peter Scarcello, and Gino Gatti – who comprise the Hook & Ladder development company.

On October 15, Mr. Epstein and our region’s largest newspaper treated the following as newsworthy: (1) Hook & Ladder is “exploring the possibility of putting a brewery in the former St. John the Evangelist Roman Catholic Church” on Seneca Street. (2) An existing deed restriction mandated by the Catholic Diocese whenever it sells a former church building bars a brewery in a former house of worship. (3) A brewery would be possible only if the diocese “gives its blessing.”

IMG_3814           Former St. John’s church, 2317 Seneca St.

IMG_3834                        Detail from St. John’s Façade.

This story might have been worth the ink and paper used to produce the Buffalo News print version on October 16, 2019 had the Hook & Ladder boys already reached out to the diocese to discuss the concept of a brewery in the vacant church building.  But, according to the article, that critical step had not occurred: “Diocese spokeswoman Kathy Spangler said they have not been contacted yet by Hook & Ladder about future development of the church.”

Whether or not the article was a premature, I found it both surprising and disappointing that Hook & Ladder would be giving any thought to installing a brewery at the corner of Seneca Street and Saint John’s Parkside.

After all, when Epstein initially reported Hook & Ladder’s purchase of the St. John’s property in January 2017 for $175,000 – under the too-cute headline, “Firefighters answer call to revive Seneca Street” – the firefighting team made no mention of a brewery.  Rather, they expressed plans for 12 loft-style residential apartments on the second floor (which, I assume, is still part of the development company’s vision), and a deli, coffee shop or similar business in the front of the building, with office or other retail in back.

And, the company’s motto is: “We are committed to improving our community one property at a time.”  In my humble opinion as a South Buffalo homeowner and resident, a brewery is not the way to attain that worthy goal.

Here are the primary reasons that I urge the diocese – when and if they are approached by Hook & Ladder – to quickly douse any spark or flame that could intensify into a full-blown brewery in old St. John’s:

– The former church has three sensitive neighbors. On one side is Grace House, a non-profit healthcare hospitality house, which promises patients and their families “overnight stays and day respite in a secure and peaceful guest house.”

IMG_3818         Grace House, 2315 Seneca St.

IMG_3823                Side yard between St. John’s and Grace House.

To the church’s rear is Baker Victory Service’s St. John’s Parkside Early Childhood Program, which offers “child care in a nurturing environment” on a “safe and accessible campus.”

IMG_3805        Baker Victory Service’s Early Childhood facility, 51 St. Park’s Parkside.

IMG_3826              View down St. John’s Parkside from Seneca St.

Steps away from the former St. John’s is the entrance to the busy and family-centric Cazenovia Park.

IMG_3831 Entrance to Cazenovia Park at Seneca St./Warren Spahn Way with St. John’s in background.

– The zoning status of the property bars a brewery. The former house of worship is zoned “N-3R Residential” under Buffalo’s zoning and development ordinance, the “Green Code” (as are the neighboring hospitality house and early childhood program facilities). Neither a brewery, nor a restaurant, is permitted in a N-3R district.

While I don’t know whether Hook & Ladder’s principals took care to consider zoning constraints prior to purchasing the property, they may want to check out two potential uses for the former church under the Green Code: a cultural facility, or a bed-and-breakfast, would be allowed in the structure if a “special use permit” is approved by the City’s Common Council.

– There are plenty of places to get a drink on Seneca Street. The Seneca Street neighborhood doesn’t need another place to drink beer or other alcoholic beverages. Within four-tenths of a mile of the former church building there are six establishments where you can buy a drink, including the recently renovated Blackthorn Restaurant & Pub, the trendy Rocker Bottle Beer Reserve, and the old-time Daly’s Bar. There are also two liquor stores.

My suggestion: Let’s encourage Hook & Ladder to find a meaningful use for this historic structure, activities that will truly enhance the Seneca Street/Cazenovia Park neighborhood.

With All Due Respect,

Art Giacalone

Whistleblower headlines stir up the past

Posted by Arthur J. Giacalone on October 22, 2019
Posted in: Donald J. Trump, Professional Ethics. Leave a comment

Preface:  The October 22, 2019 print version of the Buffalo News includes in its “My View” column a piece I wrote under the headline, “Former whistleblower reflects on his decision.”  [You can read the on-line version here.]  The newspaper’s editorial staff did a decent job “editing” what I had submitted, making it more streamlined and, one could say, more focused.  [If you’re curious about the changes, here’s a file tracking the alterations: My View whistleblower piece mark-up. ]  Posted below is the text of my submission to the Buffalo News:

I was a whistleblower 37 years ago while serving as a lawyer in a state office in Buffalo. No protections existed then for employees who sought to shed light on improper governmental action. I was fired.

That daunting episode perhaps explains my skepticism towards politicians, and my preference for a solo legal career. But, thankfully, I’ve managed to spend scant time the past few decades dwelling on the topic.

Recent events have changed that.

The media coverage of the whistleblower complaint, regarding a telephone conversation between President Donald Trump and Ukrainian President Volodymyr Zelensky, and the demeaning and threatening condemnation of the unidentified civil servant that followed, have affected me viscerally.

I recoil at the suggestion that a person who reports what he or she believes is improper governmental action must be a partisan or political hack. My party affiliation and progressive leanings were fully in line with those of my bosses.

I also know firsthand that personal animus towards an employer need not be a whistleblower’s motivation. I considered my local boss a mentor and friend. But I couldn’t remain silent once I concluded that his orders to me were potentially unethical and illegal.

There was also a human aspect to my actions. As the sole contact between our office and the powerless individuals who were relying on us, I was personally exposed to the pain caused by the politically motivated acts and omissions of my superiors.

Undoubtedly, the circumstances that I faced in 1982 pale in significance to those implicated by the anonymous whistleblower who has challenged the actions of President Trump. Nonetheless, the events that I found myself immersed in as a young attorney led me to place my ethical obligations as a lawyer, and the wellbeing of a hundred or so unemployed factory workers, above an unquestioned loyalty to the demands of my bosses.

The divergence between my opinion and that of my employer occurred in the summer of 1982. While the head of our statewide department was engaged in a re-election campaign, a federal agency sent him a stern letter questioning a decision my local boss had made concerning the case I was handling. The response was instantaneous: the public, including the unemployed workers, must not learn about “the letter” until after the November elections.

I found myself in an extremely uncomfortable position.

But I didn’t go running to an outside agency proclaiming my displeasure. I respectfully and discreetly asked my local boss for permission to prepare a confidential memorandum expressing my legal and ethical concerns. In response, my mentor and friend prohibited me from putting my research and conclusions in any written form, and ordered me not to raise my concerns with his superiors.

My discomfort, professionally and personally, escalated.

The November election came and went, but my local supervisor refused to lift the veil-of-secrecy or address the interests of the unemployed workers. I again tried to raise the issue privately with my Buffalo boss in December 1982. I was fired shortly thereafter, without any explanation, and told to immediately pack my belongings. An armed guard was placed at my office door.

About six weeks after my termination, my Buffalo supervisor announced his candidacy for an elected office. I finally understood the reason for his uncharacteristic behavior.

Given my experiences, I deeply admire the woman or man who had the courage and sense of duty to file the federal “whistleblower complaint.” And I know that if he or she possesses values similar to my own, the whistle had to be blown regardless of the consequences.

With All Due Respect,

Art Giacalone

P.S.  Attached is a lengthy “Statement of Facts,” written in 1987, which provides a  detailed chronology of my “whistleblower” episode:  1987 Statement of Facts.

 

Brown-Feroleto “vape shop moratorium” exceeds mayor’s authority, accomplishes little

Posted by Arthur J. Giacalone on September 20, 2019
Posted in: Andrew Cuomo, Byron Brown, City of Buffalo, Green Code, Joel Feroleto, Zoning Law. Leave a comment

If vaping – the use of electronic cigarettes – is as unhealthy and addictive as many medical experts believe (especially for children, teens, and young adults, and women who are pregnant) – Buffalonians should thank New York State for taking aggressive action.

On September 17, 2019, Gov. Andrew M. Cuomo announced that New York is the first state in the U.S. to implement a ban on the sale of flavored electronic cigarettes and nicotine e-liquids. While the ban is effective immediately, the Department of Health will allow retailers a two-week grace period before beginning visits to enforce the flavoring ban.

That’s great. But what have Buffalo’s elected officials done in response to recent health advisories by federal and state agencies triggered by unexplained vaping-associated pulmonary illness? Predictably, not much.

On September 6, Mayor Byron Brown announced that he was “proud” to be issuing a six-month moratorium on the opening of new stores in Buffalo that sell electronic cigarettes and supplies to give the city time to learn more about the health impacts of “vaping” on residents. His Honor’s press release proclaims in all-caps, “MAYOR BROWN ANNOUNCES SUSPENSION OF NEW VAPE LICENSES FOR SIX MONTHS.” It also states, “The resolution, sponsored by Delaware District Common Council Member Joel Feroleto, was unanimously adopted by the Common Council on September 3, 2019.” [Here’s Mayor Brown’s VapeShopMoratorium-PressRelease 09-06-19.]

Joel Feroleto photo from prior bio Byron Brown photo

Mayor Brown’s statement provides the following explanation of the Brown/Feroleto moratorium:

“The City of Buffalo issues licenses and special use permits pursuant to Section 399-13.1 and Chapter 496 of the City of Buffalo Code for the sale of tobacco and electronically delivered nicotine, commonly referred to as ‘vapes’ or ‘electronic cigarettes.’ The [Common Council’s September 3, 2019] resolution requires a moratorium on the issuance of these special use permits while these studies and investigations are ongoing.”

[Note: I know of no provision in the city’s code that requires an individual or business to obtain a “license” to operate a vape shop within the boundaries of the City of Buffalo.]

I have many concerns regarding this feeble and, from what I can tell, unlawful action by Mayor Brown. Here are the primary ones:

First, the real danger to the health of Buffalonians are the numerous vaping establishments already in existence, not the theoretical new ones that might apply to the city to open a store in the next half-year. With or without the Mayor’s moratorium, vape shops continue to pedal their problematic products on Elmwood Avenue, Hertel Avenue, South Park Avenue, Seneca Street, Main Street, etc.

IMG_3251.JPG

Second, Mayor Brown’s pronouncement, and the Feroleto-sponsored resolution adopted by Buffalo’s legislative body, disregard (or, are ignorant of) an important fact: A “special use permit” approved by the Common Council is only needed to open a vape shop in the following four Buffalo zoning districts pursuant to Mayor Brown’s much-hyped “Green Code”: N-2C [Mixed-Use Center], N-2E [Mixed-Use Edge], N-3C [Mixed-Use Center], and N-3E [Mixed-Use Edge]. In contrast, “vaping establishments” are “permitted by right” in six zoning districts throughout the city. That is, under the “Green Code,” an individual or business can open a vape shop without the need to obtain a “special use permit” in the following districts: N-1D [Downtown/Regional Hub], N-1C [Mixed-Use Core], N-1S [Secondary Employment Center], D-S [Strip Retail], D-C [Flex Commercial], and D-IL [Light Industrial].

As a result of the provisions in the Green Code, a moratorium on the issuance of new special use permits for vaping establishments is an ineffective tool to stop all new vape shops. And it makes a joke out of the purported goal of the Feroleto resolution “to use every possible precaution to limit the potential negative effects of vaping while these studies and investigations are ongoing.” [Here’s the text of Feroleto’s 09-03-19 vape shop resolution.]

[Note: Just a reminder that the so-called “Green Code” – Buffalo’s zoning law – is known officially as the “Uniform Development Ordinance” (UDO) or Chapter 496 of the City of Buffalo Code.]

One can only wonder how our Common Council enacted, and Mayor Brown ceremoniously approved, a new zoning law in January 2017 that allows vaping establishments in many areas of the city “as of right” when the potential adverse health impacts of vaping were already well known at the time. [See, for example, Surgeon General’s 2016 report.]

Third, Mayor Brown does not appear to have the authority to issue this vapid moratorium. Suspending the special use permit process under the Green Code/Uniform Development Ordinance constitutes a temporary amendment of the zoning code. Amending the zoning code (or, any other provision of the City Code) is a “legislative” act which must be performed (following a public hearing) by our legislative body, the Common Council, not by the Mayor. The “Feroleto resolution” seemed to recognize that fact when it stated: “[T]he City of Buffalo Law Department is instructed to draft an ordinance amendment that suspends the issuance of new licenses for six months, to any person, entity, or company that plans to sell primarily tobacco or electronically delivered nicotine for the Common Council’s review.” Nonetheless, I have not heard any Councilmember publicly express dismay at either Mayor Brown’s usurpation of the legislative body’s authority, or the Mayor’s disregard for the separation of powers envisioned in the City Charter and Code (as well as our state and national constitutions).

Fourth, I could envision the Mayor’s staff arguing that Mayor Brown has broad power as the city’s executive to take emergency action when called for. There’s a major problem with such a claim. The only emergency powers a mayor is given in the City Charter and City Code that he or she can exercise unilaterally are the authority to order the emergency hiring of police officers (City Charter Section C-13-12), and to declare “the temporary closing of streets”(Section 413-34 of the City Code).

And, the only provision contained in either the City Charter or City Code pertaining to a mayor’s authority in response to a public health emergency does not appear to pertain to the current situation with e-cigarettes. Entitled “Proclamation to close public entertainment establishments,” Section 158-20 of the City Code:

(a) requires the Mayor to work in tandem with the Health Commissioner, and to issue orders as recommended, in writing by said commissioner;

(b) relates specifically to “the spread of any infectious or contagious disease”; and,

(c) limits the emergency measures to be taken to the “closing of all theaters and other similar places of public entertainment and all gatherings or assemblies of persons for any purpose.”  [See City Code, Section 158-20.]

From the various statements issued by federal and state health officials, we are not dealing here with an infectious or contagious disease. And, if we were, common sense would strongly suggest that an urgent health emergency would mandate the immediate suspension of the SALE of vaping products at EXISTING vape shops, not simply a moratorium on the opening of any new vaping establishments.

Fifth, Neither Mayor Brown’s September 6th press release, nor the Feroleto resolution, addresses the steps the City of Buffalo is willing to take if the six-month research effort called for in Mr. Feroleto’s resolution leads to a conclusion that electronically-delivered nicotine presents a severe health risk to city residents. [Note: I find it a bit odd that the resolution adopted by the Common Council instructs the City of Buffalo Law Department –rather than individuals with medical expertise – to perform the investigation.] If the results are dire, I hope that Buffalo’s elected officials (and, Department of Law) will conscientiously consider the following options:

(1) “Exclusionary zoning”. In my opinion, the Common Council has the authority to amend the Green Code/UDO to prohibit vaping establishments throughout the entire city, or to restrict such operations to very limited area of the city, if the scientific facts demonstrate that the existence of vape shops present a significant health risk to Buffalonians. Although an established legal theory – exclusionary zoning – prohibits a municipality from using zoning laws to keep lower and middle socioeconomic groups out [see Berenson v. Town of New Castle, 38 NY2d 102], a city may rationally exercise its police powers (of which zoning is one) to exclude certain commercial or industrial activities in order to protect the public’s health and well-being and promote the interests of the community as a whole. [See, for example, Gernatt Asphalt Products v. Town of Sardinia, 87 NY2d 668.]

(2). “Amortization period” to phase out existing vape shops. If the Common Council were to amend the Green Code to prohibit vape shops, the existing e-cigarette establishments would become “nonconforming uses,” that is, a use that was lawfully established prior to the zoning amendment, but no longer conforms to the zoning code. Our state’s highest court has repeatedly confirmed a municipality’s authority to phase out nonconforming uses through a mechanism called (somewhat misleadingly) an “amortization period.” Under this principle, the City of Buffalo could grant existing vape shops a reasonable period of time to phase out operations as each proprietor sees fit. It would, in effect, grant e-cigarette establishments a “grace period” and, theoretically, a fair opportunity to recoup their investment.

Note: The validity of an amortization period depends on its reasonableness, but the courts have not provided a fixed formula for determining what constitutes a reasonable period. Instead, they have held that an amortization period is presumed valid, and placed a heavy burden on the owner of the nonconforming use to overcome the presumption by demonstrating “that the loss suffered is so substantial that it outweighs the public benefit to be gained by the exercise of the police power.” [See, Village of Valatie v. Smith, 83 NY2d 396.]

IMG_3253.JPG IMG_3254

In other word, our Common Councilmembers and Mayor will have to give substantially more thought to their next actions regarding the future of vape shops in Buffalo than was apparent in the decision to issue a six-month moratorium on the approval of special use permits.

With all due respect,

Art Giacalone

Buffalo City Hall’s “No Standing Any Time” Policy to Court Challenges

Posted by Arthur J. Giacalone on August 30, 2019
Posted in: City of Buffalo. Leave a comment

I’ve been trying to muster the energy and focus to write a post equating the City of Buffalo’s approach to fighting Article 78 proceedings and other judicial challenges – to Common Council, Planning Board, and Zoning Board of Appeals determinations – with the parking-related sign in front of City Hall:

IMG_2773

Or, perhaps, pen something pithy about the city’s efforts to erect “an impenetrable barrier to judicial scrutiny”:

IMG_2779.JPG

But, blame it on an end-of-summer-malaise, I can’t quite sustain my effort.

Maybe I’ll feel the burn – in a positive or negative fashion – once Justice Mark A. Montour renders his decision in Sack v. City of Buffalo Common Council & TM Montante Development LLC, NYS Supreme Court, Erie County, Index No. I-2019-000073, where, of course, the city joins the developer in asserting the affirmative defense of lack of standing.

[Full disclosure: I represent Elmwood Village resident and activist Daniel Sack, pro bono, in State Supreme Court, asking the court to annul the Buffalo Common Council’s April 16, 2019 creation of the Linwood Lafayette Urban Development Action Area as an unlawful use of Article 16 of the State’s General Municipal Law in order to bail out TM Montante Development LLC.]

Enjoy the long weekend.

With All Due Respect,

Art Giacalone

Fruit Belt’s embattled Civil War-era home is ripe for Article 16 tax relief and incentives

Posted by Arthur J. Giacalone on August 6, 2019
Posted in: City of Buffalo, Fruit Belt. Leave a comment

Forty years ago, New York’s legislature enacted General Municipal Law Article 16 – the “urban development action area act” – with one goal in mind: to provide enhanced tax exemptions to private businesses to encourage redevelopment of blighted and deteriorated city-owned property. [Here’s the statute’s text: GML Article 16 Sections 690-698 .]

Article 16 offers private developers two generous incentives:

(i) a twenty-year exemption from paying city real property taxes, with 100% tax exemption for the first ten years, and negotiable terms for the second decade [see GML Section 696]; and,

(ii) loans that can be automatically reduced to zero payments for up to 30 years if multiple dwellings are rehabilitated or constructed, and the owner complies with the terms of a negotiated regulatory agreement [see GML Section 696-a].

To be eligible for this financial assistance, the follow requirements must be met: the city-owned property must be blighted or deteriorated, or becoming so, and must have been acquired by the city through condemnation, tax foreclosure, or a similar process; the present status of the property must tend to impair or arrest the sound growth and development of the city; and, the enhanced tax incentives available through Article 16 must be necessary to enable a restoration project to be undertaken.

As described in an August 1, 2019 Buffalo News article, “Civil War-era home in Fruit Belt gets one last chance to avoid demolition,” the long-vacant Italianate residence at 204 High Street – known by preservationists and neighborhood activists as the Meidenbauer House – appears to perfectly meet Article 16’s criteria.

IMG_2326.JPG [by AJG, 08/05/2019]

IMG_2331.JPG [by AJG, 08/05/2019]

DSCN7079.JPG [by AJG, 01-06-2016]

There is little time to waste. According to BN reporter Caitlin Dewey, “[This] battered, much-debated home in Buffalo’s Fruit Belt will fall to bulldozers this September unless city officials can find a buyer to salvage it.” The fate of this iconic Fruit Belt structure, it seems, depends on the will (whim?) of Common Council President – and Ellicott District Council Member – Darius Pridgen.

In April of this year, the Council President supported what I will charitably characterize as the “creative” use of Article 16 tax incentives to bail out financially-strapped TM Montante Development LLC at Gates Circle. [See my prior post.] During the Gates Circle proceedings, Mr. Pridgen expressly stated that he would like to see Article 16 financial assistance used in the Fruit Belt.

Well, here’s Council President Pridgen’s opportunity, if he has the will.

As reported in the August 1st newspaper article, a high-ranking (but, unidentified) city official told preservation groups that Pridgen “wants [204 High Street] demolished.” That sentiment might explain the tone of the Council President’s comment quoted in the recent Buffalo News article: “I am not shying away from the fact that if the building cannot be sold and cannot be rehabbed … then safety should trump preservation.”

Darius Pridgen is in a position – thanks to the many hats that he wears – to save the Meidenbauer House. To do so, he must place the importance of preserving this significant piece of Fruit Belt history above whatever political benefits he hopes to attain by removing this century-and-a-half old structure to make room for further advancement of the nearby medical campus.

Call on Mr. Pridgen to use his authority – as Council President, as the Councilmember in whose district 204 High Street is located, and as a director of the Buffalo Urban Renewal Agency – to begin the process (if it hasn’t already commenced) of designating an “urban development action area” eligible to obtain Article 16 incentives. The UDAA should include, at a minimum, the Meidenbauer House parcel, as well as the two vacant city-owned lots at 206 and 208 High Street immediately adjoining the east property line of 204 High Street.

IMG_2318.JPG

Please don’t wait. Darius Pridgen can, theoretically, be reached at: (716) 851-4980; dpridgen@city-buffalo.com.

[Full disclosure: I am currently representing Elmwood Village resident and activist Daniel Sack, pro bono, in State Supreme Court, asking the court to annul the Buffalo Common Council’s April 16, 2019 creation of the Linwood Lafayette Urban Development Action Area as an unlawful use of Article 16 of the State’s General Municipal Law to bail out TM Montante Development LLC.]

With All Due Respect,

Art Giacalone