Will block-long buildings like the project at 1166 Jefferson Avenue become the norm, in spite of new rules intended to promote small-scale, incremental redevelopment? Time will tell, as the ZBA considers exceptions to the Green Code.
Will block-long buildings like the project at 1166 Jefferson Avenue become the norm, in spite of new rules intended to promote small-scale, incremental redevelopment? Time will tell, as the ZBA considers exceptions to the Green Code.

Zoning Watch: ZBA Sends Mixed Signals on Green Code

by / Mar. 20, 2017 11am EST

The Zoning Board of Appeals on March 15 considered the first ever variance requests from the Green Code, the “smart growth” blueprint adopted by the City of Buffalo on January 3 and partially in effect as of February 17.

The Zoning Board of Appeals has been a dysfunctional body since perhaps the day it first met in 1953, and has earned its reputation as a liberal dispenser of exceptions to the rules for damned near anybody who seeks one. An analysis of its previous six monthly meetings (September 2016 to February 2017) shows that of 95 variance requests, 77 were granted—an 81 percent approval rate.

Why would a developer stick to the rules if there’s only a 19 percent chance of a variance being denied?

The March 15 meeting was interesting. Cynics and optimists looking for either “more of the same” or a sea change in ZBA practice were delivered a more nuanced outcome. Of seven projects seeking variances from the new code, three were denied and four were granted. While a 43 percent denial rate may provide weak assurances that the Green Code will be respected, it is a better denial rate than in any of the previous six ZBA meetings. A sea change, no, but progress.

The ZBA decisions themselves are the not the only measure of change. Here’s what else is new:

• Written findings of fact. The ZBA, for the first time ever, made “written findings of fact” in support of each decision. In place of arbitrary and capricious decisions frequently made without any board discussion, the board now determines in writing whether an application meets each of New York State’s variance approval criteria. This should lead to better decision-making, and fewer unjustified variances.

• Proof of hardship. The ZBA is now requiring third-party financial evidence to demonstrate hardship. State law requires that for any use variance, the applicant must prove financial hardship to be eligible for approval. This is a very difficult litmus test to meet, since the applicant must demonstrate that for any use allowed in the zone, none can provide a reasonable rate of return. The ZBA had never expressed much interest in such legal strictures, instead passing out use variances, in the words of one city planner, “like Halloween candy.” That may have changed on March 15. The two use variances on the docket were denied due to a lack of competent financial evidence.

For a full record of agendas and proceedings, visit the city’s meetings portal

Here’s the play-by play-for each decision:

  • 338 Amherst Street. An applicant sought to install a 24-square-foot blade sign that, in combination with an existing 32-square-foot wall sign, would exceed the maximum allowed sign area (35 square feet in the N-2C zone) by 60 percent. The board turned down the request, finding that the area variance was substantial, that feasible alternatives (such as a window sign, which doesn’t count toward the maximum sign area) were available to the applicant, and that the signs would detract from Amherst Street’s small-scale character.
  • 1140 and 1166 Jefferson Avenue. The applicant (Nick Sinatra, David Pawlik, and People Inc.) sought substantial area variances for lot and building width on two projects on Jefferson Avenue, as well as a minor area variance for a corner side setback on one of the projects. 1140 Jefferson would be 284 feet wide, or 89 percent wider than the maximum 150 feet allowed in the N-3E zone, while 1166 Jefferson would be 253 feet wide, or 69 percent wider that allowed. The variances were granted. This led persistent ZBA critic Daniel Sack to declare that “the Green Code is dead.” That may be an overstatement, since the project otherwise follows the Green Code meticulously, but the decision does raise a question as to whether a different standard will be applied to big developers than to the “little guy.”
  • 880 Elmwood Avenue. An applicant sought a use variance for a 17-space commercial parking lot, a use not allowed in the N-2C zone, on the site of a house that burned in 2014. The variance was denied because the applicant failed to prove financial hardship.
  • 2401 Delaware Avenue. An applicant sought to install a 10-foot-tall pole sign of the kind that you see on Harlem Road in Cheektowaga. The board approved with modifications the sign at a reduced height of eight feet, still 60 percent greater in height than what is allowed (a maximum of five feet in the N-3E zone). The sign may be consistent with the character of this section of Delaware Avenue, but that’s why the code changed. That character sucks, and is the direct result of dumb rules in the 1953 zoning ordinance that are now no longer in effect. With the pole sign’s approval, an improvement in character has effectively been denied to North Buffalo residents.
  • 682 Abbott Road. An applicant sought a use variance to erect an off-premise sign (billboard), a use not allowed in the N-3E zone. The variance was denied because the applicant failed to prove financial hardship.
  • 2178 Seneca Street. An applicant sought area variances from the street tree and interior and perimeter parking lot standards for the Shea’s Seneca rehabilitation, perhaps South Buffalo’s most exemplary development project since the theater’s 1929 construction. The area variances were minor, and a decent attempt was made to comply with the intent of the standards if not the letter. Ornamental trees would be planted rather than the required shade trees, interior landscape would make up eight percent of the interior of the lot rather than the required 10 percent, and the rear yard buffer would be three feet rather than the required 5 feet. A stated explanation for these variance requests was to maximize the number of off-street parking spaces, 88 of which are planned. The variances were granted. As for the required street trees, which cannot be planted on the adjacent sidewalk due to inadequate width, a question remained unanswered as to whether the Department of Public Works was given the opportunity to require the street trees in an alternative location that would have provided the same benefit, as allowed by the code.

The high praise for the Green Code is now touching down onto the reality of what is likely to be a rocky implementation. The new code goes into effect citywide on April 3.

Zoning variances should be the exception rather than the rule. The March 15 ZBA meeting may or may not be an indication of what is to come, and time will tell if variances remain the rule. Either way, you can be certain that The Pubic will be watching.