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How Elmwood became a test of the new Green Code

Mark Chason wanted to build a four-story, 315-foot-long condominium building at the corner of Elmwood and Forest avenues.

He had already lowered the height by one story and shortened the length by five feet to address neighborhood objections. But, he argued, he couldn't do any more because he needed the project to work financially.

So he sought eight exceptions from the city's new Green Code.

To Chason's company, the request was a necessary and appropriate application of state and local law.

To some people in the neighborhood, though, the request was an arrogant abomination, an offense against all that they had worked for over six years. One person at a recent Planning Board hearing called it a "gluttonous request" and an example of "hubris" by Chason.

They denounced the proposal as unsuitable, asserted that it was illegal under the new code and demanded it be changed to abide by the rules. Otherwise, they asserted, it should be rejected outright by the city.

"Follow the Green Code!" was a frequent mantra cited by many people at public meetings and in letters to city agencies.

The result was a bitter zoning fight that isn't over. And it's likely to be only one of the first skirmishes in an ongoing clash between neighborhoods and developers as the city's renaissance continues with new projects.

Seven months after Mayor Byron Brown signed the city's new zoning and land-use rules into law, the Green Code has touched off neighborhood controversies, as developers and city residents debate what it means. Meetings have turned tense over variances for projects, particularly in Elmwood, and disappointed opponents have threatened to sue the city over its decisions.

"Thousands of hours went into the Green Code," said Carl Dennis, an Elmwood resident and University at Buffalo English professor. "All kinds of money was spent, and the mayor got all kinds of free publicity about how progressive it was, and then these variances nullify its effects."

Landmark change

The Green Code was heralded as a landmark change in how the city would now handle development, setting clearer guidelines for everyone on what to expect. It was designed to introduce a more forward-thinking philosophy of what should be built in the future.

"It's very progressive," said Dennis Penman, executive vice president of Ciminelli Real Estate Corp., which also has a pending project in Elmwood that has stirred opposition. "It's starting to be recognized from people outside the community as one of the leading municipal codes for urban areas in the country."

After 242 public meetings, Mayor Byron Brown signs the Green Code into law at Seneca One Tower in January. (Sharon Cantillon/Buffalo News)

It also was seen by many in the Elmwood Village and other parts of the city as a way to protect what they liked about their neighborhoods – walkability, lower-scale and older buildings, and small storefronts.

"The Green Code was designed to promote what we thought is good on Elmwood, and we would like to see it kept," said Assemblyman Sean Ryan, D-Buffalo.

The Green Code is Buffalo's new zoning and land-use ordinance, setting the rules for what can be built on properties throughout the city. It determines how properties can be used by owners or developers, what kind and size of buildings can be constructed and how they look, particularly in relation to the neighborhood around them.

While the code sets a framework for development, it also allows property owners to seek exemptions – known as variances – that must be granted if a request meets specific criteria. The process is set up under state law to protect landowners who feel zoning laws infringe on their property rights, by creating an avenue for appeals when a municipality imposes restrictions on how land can be used.

Green Code debate is about variances. What are they?

It did not take long for the new laws to be on the books before developers began seeking exemptions. For example:

  • Chason Affinity sought variances for its proposal to tear down a row of houses and build a four-story condo building at the corner of Elmwood and Forest avenues that would be 315 feet long. The Green Code caps new buildings in the Elmwood area at three stories and 120 feet long. Other variances dealt with its design, especially where brick townhomes were proposed when glass storefronts were specified under the code. The requests were approved by the Zoning Board of Appeals.
  •  Dash's Markets received nine variances for its new store at 1764 Hertel Ave. Those related to landscaping, the height of parking lot buffers and walls, the use of more brick instead of glass and a 400-foot lot width where the limit is 150 feet.
  • Ciminelli Real Estate needs variances for its planned Reverie project on Elmwood Avenue near Bidwell Parkway, including for the height of the four-story building. Specific details are uncertain, as the developer has been modifying the plan. A second proposed building was five stories before Ciminelli pulled it from consideration because of neighborhood opposition.

A photographic print of an architectural rendering showing the proposed Dash's supermarket on Hertel and Starin. (Derek Gee/Buffalo News)

Critics say these and other developers are ignoring the Green Code by proposing projects that go against certain elements of the rules, and then seeking variances to get around the restrictions.

"It doesn't look like any of the developers are conforming their actions to the new Green Code," Ryan said. "It's sort of the way it was before, when it was the open Wild West. ... There are a lot of developers now waiting to see what will happen."

They also complain the city is failing to enforce it and protect them, by granting too many requests rather than forcing developers to comply with the rules. "They're taking the Green Code as just a list of suggestions," Dennis said. "It's not a list of suggestions. It's a law."

They also predict a flood of additional projects they don't want if even one is allowed to proceed. Several Elmwood residents say they will file a lawsuit against the city this month, claiming improper approval of the Chason project.

Some of the nine houses that would be demolished to make way for a proposed development by Chason Affinity on Elmwood at Forest. (Derek Gee/Buffalo News)

But some developers, attorneys and city officials say Ryan and the residents don't understand the system. "The Green Code enthusiasts have a complete misunderstanding as to how the zoning function of municipal government works," said land-use attorney Corey Auerbach of Barclay Damon LLP.

They say that variances are part and parcel of any zoning law – including the Green Code – and are governed by state law, which mandates that all property owners be afforded "due process" for obtaining relief through the Zoning Board of Appeals. They say zoning rules must allow for these exceptions.

"Some people have the erroneous belief and perception that the Green Code is an absolute law that cannot have deviations to it," said Common Councilmember Joel Feroleto, whose district includes part of the Elmwood Village. "That is in direct conflict to what the state law says."

City officials say they're not surprised by what's happened. "This was fully expected," said Brendan Mehaffy, the executive director of the city's Office of Strategic Planning. "A zoning code, as we frequently talk about, is not something people typically discuss around their dining room table. This is part of engaging the community in what zoning is and how it works."

Six years of planning 

Central to the ongoing battle are the meaning of the Green Code, the purpose of variances and the arcane roles of the city Zoning and Planning boards.

Buffalo's new Green Code is a radical change for a city long stuck in an older era. Six years in the making, it was the first comprehensive rewrite of the regulations in 62 years and was intended to usher in a different style of development.

"There was a time in Buffalo when every development was a good development, because the city was very eager to see any type of development," said Adam S. Walters, a land-use attorney at Phillips Lytle LLP. "Those days are long gone."

The city adopted the new code this year after a long process of public input, with more than 242 public meetings and intense involvement by city officials, working groups, community leaders and developers.

Residents of some neighborhoods, especially the Elmwood Village, took an active role in voicing desires for certain restrictions, after a wave of new projects they found objectionable. The Elmwood lobby even pushed through last-minute changes that tightened the guidelines further for their stretch of the city.

"There's satisfaction in general in the community that it was a good piece of work and will serve the city well," said James L. Magavern, senior counsel at Magavern Magavern & Grimm LLP, who helped draft the Elmwood provisions of the code as part of a working group.

Elmwood Avenue at Bidwell, left, and Potomac, right. (Derek Gee/Buffalo News)

Many residents thought the new rules would help protect the neighborhood's character. "Over the decades, we've had the development wars on Elmwood Avenue. The new Green Code was supposed to stop that and provide certainty for everyone," Ryan said. "The public breathed a big sigh of relief when it was passed."

That's why some people are now so upset with the city. They say they didn't envision what they say are significant deviations from the code.

"These are people from the community who helped to write this, and it feels like the rug was pulled out from under us," said Gretchen Cercone, president of the Lancaster Avenue Block Club, and a leading activist. "We trusted that process. We invested our time, our money, our energy, our efforts and our passion for the community into making the Green Code. We have an expectation that the city follows through on what its promises were."

'Living, breathing document'

Mehaffy insists the Green Code is being properly enforced "in the context of variances." He says his staff, as well as Planning and Zoning board members, have been trained. And the city has labored to increase transparency in its decisions, posting more documents and fuller explanations online.

"There's been a fair amount of effort to educate people about what the rules and procedures are," he said.

He said the number of variance denials has increased since the code was adopted, and the Zoning Board is taking more time to consider each application before making decisions. According to city statistics, since March, when the new code went into effect, the board rejected 29 variance requests, compared to just six in the same period a year ago. However, direct comparisons are difficult because the two time periods had different projects and variances under consideration.

"For every zoning code, you have variances," Mehaffy said. "There's a lot of people who don't understand the threshold and standards that are associated with variances."

Moreover, the Green Code, like any other zoning law, is subject to the same subjective interpretations and limitations as any other set of land-use rules, attorneys said. "It is more of a living, breathing document than it is a static one. It is a framework, but it is not the Bible," Auerbach said.

Critics don't buy it.

"There's no way to say they're enforcing the code," said Dennis, the Elmwood resident and UB professor.  "They just thumb their nose. It's not a misunderstanding of what it is. It's a misunderstanding of how seriously it ought to be treated."

Green Code debate is about variances. What are they?

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