Plans for a $30 million condominium project at Elmwood and Forest avenues got a major boost this week when the developer won approval for eight zoning variances.
But that doesn't mean the still-boiling controversy is over. Next up is the city Planning Board. And the zoning decision may face a legal challenge as well, as two neighbors have hired attorney Richard Lippes to represent them.
The highly visible project overcame a major set of obstacles when the Zoning Board of Appeals voted to grant Chason Affinity Companies' the variances it sought.
The variances break significantly with some elements of the newly enacted Green Code.
Four of the biggest variances – combining more than two properties, the length of the project along Elmwood and the height of the building – were approved unanimously by the five-member board, despite vocal opposition from some members of the communty. Other variances involving exceptions to requirements to encourage retail space along Elmwood narrowly passed by a 3-2 vote.
"We are very pleased with the approvals by the ZBA on the variances for our project," said Chason CEO Mark Chason. "These votes to approve the requested variances allow our project to move forward."
But the Board also made sure to lay out its findings and reasoning behind its decisions. Not only does that help to explain and justify their rulings on the Chason applications, advocates say, but it also will help to separate this from another controversial project proposal by Ciminelli Real Estate Corp. down the street on Elmwood.
That's been a particular concern of many opponents, who believe that an approval of Chason's project opens the door to Ciminelli's and other projects in the future. The city's corporation counsel has said it would not be a precedent.
"The Zoning Board did a very good job in their findings, because they listed unique facts that are applicable to this property and the project. They put on the record a lot of things that distinguish the property," said Delaware Common Councilmember Joel P. Feroleto, who represents that area and who came out in support of the project earlier this month.
"They really put in a lot of effort to make sure it doesn't set a legal precedent for any other project on Elmwood, so that another project in the future can't get variances just because Chason got them."
The Planning Board will consider the project July 31, and the developer hopes to start work in early fall.
"We are just happy that our project is being so well received and that the community and the ZBA have judged our project on its merits," Chason said. "We are thrilled to move this project forward."
Critics were not pleased.
"Community members who worked with Mayor Brown and Councilmember Feroleto to get the city's Green Code passed feel betrayed by their elected officials as they are watching the law circumvented by one substantial variance after the next," said Gretchen Cercone, president of the Lancaster Avenue Block Club.
The votes came at the end of another five hours of testimony and discussion by the board, which met inside the Common Council chambers to accommodate the enormous crowd. The meeting, which began at 2 p.m. with a series of two dozen other variance applications, did not end until after 9 p.m. Wednesday.
The comments on both sides were generally similar to those from a prior five-hour public hearing earlier this month, also held by the ZBA in Council chambers.
Twenty-eight people spoke, including 10 in favor and 18 against. Opponents included Assemblyman Sean Ryan's communications director, Cody Meyers, Preservation Buffalo Niagara Executive Director Jessie Fisher and two members of the city Preservation Board, Terry Robinson and Lippes.
In the end, supporters of the residential development project, who are eager to see it built, won out over opposition from critics, who have denounced the company's proposal as inappropriate for the Elmwood Village, and demanded that the city adhere to its new set of rules.
The opponents argue that the variances are too significant and too many in number to deserve approval as one of the first major projects since the city Green Code went into effect. Cercone said the Zoning Board was given a petition with 31 signatures from Elmwood business owners, as well as an electronic petition with 684 signatures of people supporting the Green Code.
Supporters - including both neighbors on various streets and businesses on Elmwood - say the project will bring needed vibrancy to the area, with new residents, retailers and underground parking to replace neglected or underused properties.
"The immediate neighborhood supported the project," Feroleto said. "I'm pleased that the project passed, and I'm happy that the corporation counsel and members of the Zoning Board put a lot of hard work and time into making sure this does not set a legal precedent."
Chason plans to demolish nine buildings on Elmwood and two on Forest to construct a four-story brick-and-brownstone building with a mixture of one, two- and three-bedroom units and three retail storefronts. The project, which was downsized from five stories and 57 condos, would include 97 underground parking spaces.
The Green Code limits the height of buildings in the Elmwood Village to three stories and 44 feet, and restricts how long new construction projects can stretch along the street to 120 feet. Chason's project is four stories and 315 feet long.
"In order to maintain an effective zoning code, you have to have uniform application. Certainly, this very large variance makes it hard to keep anything uniform from this point on," Ryan said Friday. "Every developer will now argue that four stories and combining multiple lots will be the new normal."
But Chason officials note that they have made efforts to respond to neighborhood concerns, reduce the scale of the project, and redesign it to look less imposing.
The company introduced different colors of brick and other materials, as well as setbacks, to redesign the front facade so it looks like nine different buildings – seven walk-up townhomes at one end, a glass-enclosed courtyard and pocket park in the middle, and a main building at the far end – as opposed to a single monolithic structure.
It's also five feet shorter, at 315 feet in length, and the top floor is set back from the facade by another eight feet. And the fourth floor now has a mansard roof, instead of a vertical wall.
However, the Green Code still imposes requirements on ground-floor facades along Elmwood, to encourage more retail space and create a walkable community. That prompted some disagreement among the Zoning Board members, leading to the split votes on those related variances.
Feroleto said that's something that may need to be revisited by the Common Council, given the struggles facing brick-and-mortar retailers nationwide because of the growing prevalence of online shopping.
"We really need to be proactive on the retail and commercial districts," Feroleto said. "We don't want to be oversaturated with retail."
News Staff Reporter Deirdre Williams contributed to this article.