Two Buffalo residents who live near the planned site of a new condominium building at Elmwood and Forest avenues have sued the City of Buffalo, challenging the city's approvals of the controversial proposal and demanding that it be blocked.
The Article 78 lawsuit by Susan Davis and Sandra Girage accuses the city's Planning Board and Zoning Board of Appeals of violating the city's new Green Code, as well as state environmental and historic preservation laws, when they approved the project by Chason Affinity Companies in late July.
The lawsuit claims the two boards acted improperly when the Planning Board approved the site plan for the Chason project, and when the Zoning Board granted eight variances from the Green Code.
The filing had been expected for weeks, since the final decisions were issued. Only two people are named as plaintiffs, but their concerns echo those of a larger group of city residents – particularly from the Elmwood Village – who are angry about how the city is enforcing the Green Code after they spent six years working on it.
In particular, the project opponents worry that large redevelopments – such as Chason's or another Elmwood Avenue proposal by Ciminelli Real Estate Corp. – will damage the historic character of their neighborhoods. They worry that a parade of other projects will follow Chason's.
"Elmwood Avenue is one of the only areas of the city that has not been affected by demolition. It is still intact," said Girage, who owns the house on Forest next to the Chason site, but doesn't live there. "I don't want to see the domino effect. If Chason can do this, what will stop everyone else?"
They insist any zoning variances should be few and far between, and small in nature.
"We want to see the Green Code enforced on this project," said Davis, a Granger Place resident, in a news release announcing the filing. "Otherwise, we will lose the rest of Elmwood Avenue."
The plaintiffs argue that officials ignored the city's comprehensive plan, failed to properly consider the impact on the neighborhood, neglected disclosure and public notice requirements, and disregarded the opinion of state historic preservation officials.
The lawsuit asks the court to void the municipal approvals and issue an injunction to stop any demolition or construction by the developer until the city boards have "fully complied" with state and local laws.
"If we have a zoning code, it must be applied equally to citizens, small business owners and developers," said Gretchen Cercone, president of the Lancaster Avenue Block Club and a member of the newly formed Residents of the Elmwood Village for Green Code Enforcement, which supports the lawsuit. "Citizens should not have to sue the city to get equal treatment under the law."
The lawsuit was filed in state Supreme Court in Erie County by attorney Richard Lippes, who is a member of the Buffalo Preservation Board. City officials declined to comment, citing the pending litigation.
Chason is building a four-story complex with 40 for-sale condos, three ground-floor retail spaces and one level of underground parking. The building, which was reduced in height from five stories, will be 44 feet high and 315 feet wide. The project requires the demolition of 14 buildings and the combination of multiple properties into one.
The Green Code limits new buildings in Elmwood to three stories in height and 120 feet in width along the street. Chason sought and received variances for both exceptions, as well as six other exemptions from the city's zoning codes.
The lawsuit claimed that the notices for public hearings on the variances were insufficient and that speakers were not given enough time to complete their comments, or were not given a chance to speak because the Zoning Board chairman cut off discussion after several hours. It also asserts that the board failed to fully explain its decisions on each variance and didn't fully consider the effect that demolitions would have on the historic districts on both sides of Elmwood.
In addition to other arguments, the plaintiffs allege Chason didn't prove that a hardship existed that it didn't create.