Mayor Byron W. Brown’s Office of Strategic Planning [OSP] is now putting the finishing touches on an updated version of the “Buffalo Green Code”—a document the Mayor has modestly described as “a historic revision” of Buffalo’s land use and zoning policies. It is the intention of Mr. Brown’s “Green Code Team” to present the finished product to the nine-member Common Council—the body empowered by the State of New York to approve, modify or deny the proposed zoning and land use law—in the very near future.

I would like to share with the Common Council and the public nine observations concerning the May 2014 draft of the Green Code, a perspective the Common Council and citizenry will not be hearing from the Green Code Team or Western New York media. My comments are informed by a quarter century of representing City of Buffalo homeowners and tenants at administrative hearings and in court proceedings concerning zoning, land use, and environmental matters, and two decades of living in Buffalo:

1. The many outreach efforts held by the Green Code Team failed to provide residents with crucial information.

The Green Code Team has participated in many “outreach” activities since the May 2014 draft of the Green Code was made public. Despite that, the general public has found it extremely difficult to assess how the Green Code will affect what is most valuable to them—their homes and neighborhoods.

No matter how well intentioned the Green Code Team is, their presentations have always been influenced by the desire to “sell” the proposed code. The attendees—including Common Council members—have been given large quantities of information while repeatedly being told in a multitude of ways: “Old zoning law bad. Green Code good!”

Outreach participants have been shown lengthy PowerPoint presentations, but they have not been provided easy access to what residents are most interested in: a proposed land use map clearly showing what zoning district their block and neighborhood is in, and a reference table to easily see what activities would be permitted near their homes. Without this basic information Buffalo residents are deprived of a meaningful picture of the proposed Green Code.

2. The draft Green Code would bring commercial uses and more uncertainty to Buffalo’s residential neighborhoods.

The Mayor’s propaganda machine promised a new land use code that would bring “clarity and predictability” to the zoning process, allowing neighbors to have “certainty about what can and cannot be built next door.” Unfortunately, the proposed Green Code does just the opposite. By overuse of the “Special Use Permit” process, residents on the majority of Buffalo’s residential streets—whether homeowners or renters—will be burdened with the possibility of living next door or down the block from unwanted commercial activities.

The Green Code Team is enamored with the concept of “mixed use” neighborhoods where everything residents need is within easy walking distance of their homes. But the Mayor’s OSP staff has gotten carried away with that concept by writing a land use code that would make every block a potential “mixed use block.”

As currently proposed, whether your home is in the University District, Parkside neighborhood, the West Side, the East Side, South Buffalo, the Fruit Belt or the Elmwood Village—unless you are one of the privileged few living on one of Buffalo’s exclusive streets—the following activities could end up on the corner of your street if a Special Use Permit is granted:

Restaurants and taverns, including outdoor dining; live entertainment; retail stores and service establishments; lodges and private clubs; government offices; professional offices; healthcare clinics; funeral services, including a crematory; day care centers; nursing homes; a “neighborhood” parking lot.

And the following uses would be allowed “by right” (that is, with no approval needed) on any lot: a group home for unrelated persons with disabilities (including those who have undergone treatment for alcohol or drug addiction); a bed-and-breakfast, with up to 10 guests; a “day care home” servicing up to six children or six elderly; “public safety facilities”; and, a “market garden” open to the general public. Additionally, fraternity and sorority houses, including recreational facilities for college students, would be allowed on any lot with a Special Use Permit.

3. Under the proposed Green Code, even Buffalo’s most exclusive streets and neighborhoods would experience encroachment by non-residential activities.

The fortunate few who reside in the mansions on Lincoln Parkway, Rumsey Road, or Chapin Parkway, the gracious homes on McKinley Parkway, or on a few dozen other popular streets, would come away relatively unscathed if the draft Green Code were adopted by the Common Council. But even the residents of Buffalo’s most prized streets have reasons to be concerned.

The May 2014 draft Green Code allows, “by right” the following activities in the “N-4” zones encompassing Buffalo’s most exclusive streets: group homes, day care homes, community gardens and market gardens, and public safety facilities (including emergency medical services substations, border control and military facilities, and interim incarceration facilities). Additionally, the “N-4” zones include bed & breakfast establishments, community centers, and wireless communications towers and facilities as Special Use Permit activities.

4. The “Special Use Permit” provides much less protection to residents and property owners than zoning amendments and variances.

The proposed “Principal Uses” table in the draft Green Code depicts the “Special Use” symbol more than two hundred forty (240) times. It also includes the “Special Use, Corner Only” symbol thirty-two (32) times. This widespread use of the Special Use Permit creates uncertainties and little protection for nearby property owners and residents.

The current draft of the Green Code envisions a process where a property owner or someone authorized by a property owner (for example, a prospective business owner) applies for a Special Use Permit, the City Planning Board reviews the application and recommends to the Common Council whether the request should be approved or disapproved, and then the Common Council, following a public hearing, approves, approves with modifications, or disapproves the Special Use Permit. Correspondence sent by the Green Code Team to the Common Council in July, outlining the comments City Hall has received about the draft Green Code, mentions that questions have been raised on who should have the authority to approve or deny Special Use Permits, the Common Council, the Planning Board, or the Zoning Board of Appeals [ZBA]. Various commentators trust one body more than another.

But the more important issue the public and the Common Council need to consider is whether the City of Buffalo should be making such extensive use of the Special Use Permit process when it provides so little protection for nearby residents?

New York’s courts have long held that when a legislative body—such as the Common Council—includes in it’s zoning law an allowed activity if a ‘Special Use Permit’ is granted, that legislative body is making a finding that the allowed activity will not adversely affect the neighborhood.

This explains why developers and the business community support the widespread utilization of the Special Use Permit process. An applicant possesses a much greater chance of obtaining a Special Use Permit than it does a zoning amendment from the Common Council, or a variance from the ZBA. Special Use Permits are the easiest type of zoning approvals to obtain, and the hardest approval for an aggrieved neighbor to overturn in court.

5. The Green Code Team fails to adequately explain why the proposed new law emphasizes “Form”—the types of buildings—over “Function”—how the buildings will be used.

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

Hand-in-hand with the “form-based” approach taken by the Mayor’s Office of Strategic Planning is an effort to equate the physical look of a neighborhood or street with its “character.” While the “form” of buildings—especially their size and proximity to neighboring parcels—affects the character of a neighborhood, it is the type of activities which occur within and around that structure that has the greatest impact, especially on nearby residences.

6. The draft Green Code allows large commercial buildings on residential streets without providing any meaningful protection for nearby residents.

Substantial portions of Buffalo’s residential neighborhoods would be designated either “N-2R (Residential)” or “N-3R (Residential)” under the draft Green Code. Despite the inclusion of the term “Residential” in the names of these zoning districts, two decidedly non-residential “forms” would be allowed on the residential streets that are home to a majority of Buffalonians: 1) A Commercial Block building—a structure of two or more stories designed to facilitate pedestrian-oriented retail or office uses on the ground floor, with upper floors typically designed for residential, hospitality, or employment uses. 2) A Stacked Units building—a structure of two or more stories that facilitate multiple units connected with one or more shared entries, and are typically designed for residential, hospitality or office uses.

The May 2014 version of the Green Code would allow a 4-story “Commercial Block” structure on corner lots in “N-2R” districts (which include much of the West Side and also the Fruit Belt neighborhood), and 3-story “Commercial Block” buildings on corner lots in “N-3R” districts (which include much of the East Side, South Buffalo, and significant portions of North Buffalo and the University district). In either N-2R or N-3R zones, a Commercial Block” building would be allowed to cover 100% of the lot, that is, there would be no yards and no setbacks from neighboring homes.

The latest draft of the Green Code would allow a 4-story “Stacked Units” building on any lot in “N-2R” districts, and 3-story ”Stacked Units” structure on any lot in “N-3R” districts. A “Stacked Units” building would be allowed to cover up to 90% of the lot, and can be as close as three feet from the principal building (including a residence) on an abutting lot.

Given the potential scale and extensive lot coverage of Commercial Block and Stacked Units buildings, the proposed Green Code provides woefully inadequate safeguards to protect the privacy and quality of life of nearby residents.

7. The Mayor’s Green Code Team has broken its promise to the residents of the Elmwood Village to preserve the character of neighborhoods and encourage development consistent with prevailing patterns.

The Mayor’s Green Code Team is determined to “fix what’s not broken”—the special zoning district provisions enacted by the Common Council in 1977 for the “Elmwood Avenue Business District” [“EB”].

The proposed new zoning code would eliminate the very features of the current zoning ordinance that have reinforced and preserved the historic fabric of the Elmwood Village and nurtured the balance between residential and non-residential uses—the EB District’s limits on the intensity and scale of commercial uses on Elmwood Avenue. By allowing “Commercial Block” buildings up to 5-stories in height, on lots as wide as 225 feet, the draft Green Code would encourage speculators to purchase rows of century-old residential structures—the essence of the Elmwood Village’s character—demolish them, and replace them with out-of-scale commercial buildings that would generate more traffic and overwhelm the adjacent residential neighborhood.

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

Although the draft Green Code classifies the McCarley Gardens development as a “Residential Campus,” it does nothing to protect the current residents from being pushed out of their homes in order to make way for new and profitable development. To the contrary, by virtue of the types of uses allowed on a so-called “Residential Campus,” it provides a major incentive for developers to eliminate McCarley Gardens and replace it with an up-scale project that could include medical clinics, professional offices, hotels, restaurants, taverns, outdoor dining, retail and service businesses, and residential care facilities.

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

9. The proposed elimination of all minimum parking requirements is unfair to existing businesses and residential neighborhoods.

The Green Code Team has chosen to eliminate all minimum off-street parking requirements. The Mayor’s OSP staff calls this a “market based approach,” based on the fiction that developers wishing to construct a new building, or expand an existing one, will always make certain that their tenants and customers have adequate parking facilities.

In the real world, however, developers are often tempted to skimp on off-street parking if given the opportunity, preferring to construct larger buildings that will provide additional revenue. When that happens, tenants and customers are compelled to park on the street. In areas where parking is already at a premium, existing businesses suffer when their lots are used by someone else’s customers, or their own customers can no longer find on-street spaces nearby. Worst of all, the excess parking spills over to neighboring residential streets, bringing with it noise, loss of privacy, and inconvenience. When you look beyond the bells-and-whistles, you have a proposed zoning and land use law that empowers developers at the expense of the City’s residents.

Arthur J. Giacalone is a semi-retired lawyer who comments on land use and development issues at WithAllDueRespectBlog.com.