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COMMENTARY

'This is about safety and justice': Fighting City Hall over 'Green Suggestions'

Rod Watson

During the civil rights era, advocates for justice had to use the courts to circumvent local officials who disregarded the plain meaning of words on paper.

Who knew that in Buffalo a half century later, citizens would still have to turn to the courts instead of their elected officials and that the fight for equal justice under the law would be just as arduous?

Two court cases last week exemplify the new battleground as neighborhood residents take on developers and, in both cases, city officials side with the moneyed interests.

Copper Town residents concerned about the Tim Hortons drive-thru proposed for the historic Michigan Avenue corridor lost in their bid to make the city live up to its own Green Suggestions. That’s the much-ballyhooed document that is supposed to guide such development, but is a "code" in name only, given all of the exemptions the city grants.

"This is about safety and justice and access to a fair process," residents’ attorney Stephanie Adams argued in questioning whether the Green Code was followed in letter or spirit.

But in a decision that seemed preordained, State Supreme Court Justice Mark Grisanti said he could find no reason to conclude the city’s approval of Ellicott Development’s coffee shop/bakery planned for Michigan at William Street was not "rational." That followed last year’s court ruling overturning the city Zoning Board– yes, one city agency actually did stand up for residents and the rule of law – after it had denied a variance to allow that drive-thru in the Michigan Street African American Heritage Corridor.

Infuriatingly for residents, city lawyers went to court then and sided with the developers – just as they did in declaring the upscale Gates Circle neighborhood a "slum" to allow TM Montante Development the type of tax breaks that should be reserved for truly blighted areas.

Neighborhood activist sues to block designation of Gates Circle as blighted

That case also was in court last week as a nearby resident challenged that absurd legal interpretation, one made even more ridiculous by the inclusion of a city parking ramp and streets, and even the circle itself, in calculations to reach a threshold of "city-owned" property to make the tax breaks possible. Attorney Arthur Giacalone argued in part that the fact the city has used this interpretation so seldom – perhaps one other time – is proof in itself the law was never meant to be misused this way.

A decision from Justice Mark Montour in that case is pending, after Montante’s attorney – abetted by city lawyers – argued that residents lack standing to sue, that no one has been harmed (yet), that city officials deserve "deference" to decide these matters, and that there’s really no controversy, apparently because the city and the developer agree that everything is just fine.

For his part, Montour asked pointed questions of both sides, including about the lack of appraisals to show that nearby residents were actually harmed by the slum designation. But he also questioned the inclusion of city-owned property and whether any "blight" at the former Millard Fillmore Hospital site was actually caused by inaction on the part of the developer and the city itself.

Montour’s incisive questioning offers some hope that residents might prevail in this one.

But regardless of the outcome, what the two cases have in common is citizens trying to prove you can fight City Hall. And make no mistake, you have to in Buffalo, where officials mimic the Lewis Carroll character who said, "When I use a word, it means just what I choose it to mean — neither more nor less."

Undaunted by the court loss in the Copper Town case, those residents – some of whom also rallied against the Gates Circle farce – seem more determined than ever to make city government work for the people. That means pushing officials to improve the process so that residents aren’t always at a disadvantage, learning about developments when it’s too late to make a difference – as they say happened when Ellicott Development went to court to overturn the Zoning Board decision.

Rather than being defeated, they seem steeled by the notion that the city has yet to catch up to its own Green Code and can still be poked, prodded and sued into doing what it is supposed to do – once it realizes residents aren’t going to go away.

And it’s clear these residents, unlike many of their more passive fellow citizens, are not.

They’re going to keep pressing for a more transparent process, Copper Town Block Club President Gail Wells said after Grisanti’s ruling, emphasizing that East Side residents will be protagonists, not victims.

In an earlier open letter, she pointed out that residents are developers, too, investing in their properties long before gentrification became a buzzword and when redlining and other obstacles made such a commitment even harder.

Now they want to be involved in the process up front. They want developers and officials to learn about their neighborhood and its history before trying to impose some new project. And they want their government to work with them instead of against them.

Maybe that means appointing an ombudsman or a planning liaison to communicate with residents, the way Housing Court does, Wells and Adams suggested.

But maybe that also means keeping score of which officials back development variances – and which judges needlessly back them up – and putting that scorecard out at election time.

Whatever it takes. Because most of all, what they want is for the city to honor the words it committed to paper.

That means they want the Green Suggestions treated as if they actually are the law.

 

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