A variance battle brews at 2929 Main Street.
A variance battle brews at 2929 Main Street.

Zoning Watch: 2929 Main Tests the ZBA’s Resolve

by / May. 25, 2017 6am EST

The Zoning Board of Appeals met on May 17. The meeting was as interesting for what didn’t happen as much as what did. Here are a few key updates:

Posted Notice: The May 17 meeting of the Zoning Board of Appeals originally had 19 agenda items. All but three (16 Cleveburn Place, 298 Dewitt Street, and 2929 and 2939 Main Street) were tabled due to deficient posted notice, and the hearings will be rescheduled for the June 21 meeting. The Green Code (Section 11.2.2.C) now requires a minimum 12 square foot sign, prominently visible from the street, to be posted at least 10 days in advance of public hearings before the ZBA, City Planning Board, and Common Council. A resident, visiting each project site at which a variance was being requested, reportedly found that only three of the 19 applications had posted the required sign. It is possible that previous Green Code variance, site plan, and special use permit requests have likewise had inadequate posted notice. The ZBA did the right thing by cancelling each of the 16 hearings for which the applicant failed to post the sign, but time will tell if the City will ensure that all public notice requirements are consistently met in the future. As chemist Orlando Battista wrote, “An error doesn’t become a mistake until you refuse to correct it.” The Public will certainly be following up.

Staff Reports: Starting in March, the Office of Strategic Planning began providing the City Planning Board and Zoning Board of Appeals with staff reports containing a professional analysis of each application. This is a giant leap forward for code administration, is consistent with best practice, and should assist the City Planning Board and Zoning Board of Appeals in making informed, legally defensible decisions. The Public learned of the existence of these staff reports only because of a May 3 FOIL request by persistent ZBA critic and Zoning Watch contributor Daniel Sack. The City of Buffalo should take the next step by posting staff reports alongside other application materials on its website (http://city-buffalo.com/meetings), as the City of Rochester does (http://www.cityofrochester.gov/zoningboard/), so that citizens know what advice the ZBA and City Planning Board is being given. Transparency is key.

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

2929 and 2939 Main Street: An applicant (Main and Hertel, LLC) proposing to erect a five-story, 320-unit mixed-use building is seeking five area variances. The project is consistent with the smart growth principles of the Comprehensive Plan, and as one of Buffalo’s largest residential projects in decades will likely contribute to Metro Rail ridership and the revitalization of Main Street. It is a brownfield reclamation project, and will restore two of four historic industrial buildings on the site. It is an exemplary project.

That said, in spite of its density and proximity to the LaSalle Metro Rail station (only one-fifth of a mile away), the proposal is clearly intended to be automobile dependent. The building would occupy only 25 percent of its site, the rest devoted to surface parking—a ratio that recalls sprawling development sites in Amherst and Cheektowaga. The three substantial area variances (two variance requests are arguably minor) are clearly motivated by a choice to facilitate automobiles at the expense of pedestrians and the natural environment. Here’s the breakdown:

Front Yard Setback. The N-1C zone requires all buildings to be built up to the public right-of-way. The applicant seeks a 5.76-foot front yard setback, a minor deviation from the code. This setback is more consistent with the setbacks of adjacent industrial buildings, and is therefore more consistent with the intent of the standard. As the staff report notes, no on-street parking exists along Main Street adjacent to the site (a problem that should be fixed in the long term), so the additional front yard setback will provide a buffer from vehicular traffic and support a more comfortable pedestrian environment. This variance request is justified.

Interior Side Yard Setback. The N-1C zone requires an interior side yard to be no more than 30 feet in width, presumably to keep distances to a minimum between adjacent buildings and promote pedestrian connectivity. Because of the unusual configuration of the lot, an interior side yard of 88 feet is provided at its maximum, only at the rear of the lot. Because of the practical difficulty this presents for site development, and the absence of any discernible adverse effect upon the public realm, the variance request is justified.

Tree Conservation. Here’s where the automobile begins to trample upon the public good. The Green Code (Section 7.1.3) requires that mature trees of six inches or more in diameter at breast height (DBH) be conserved or replaced in kind in the course of development. For any tree that is removed for any reason, replacement trees of the same or similar species must be installed for which the combined DBH is equal to or greater than the DBH of the trees that are removed. The replacement trees may be planted on site or anywhere else in the corporate limits of the City of Buffalo (the latter option apparently not yet explored by the applicant). The applicant proposes to remove 46 trees totaling 609 inches of DBH and replace them with 59 trees totaling 165 inches of DBH. The code requires 269 percent more tree replacement (444 inches of equivalent DBH) than the applicant proposes. This is the definition of a substantial area variance, with the removal of mature trees that provide important ecosystem benefits to the human and natural environments. And all for what? A parking lot.

Interior Parking Lot Landscape. The applicant proposes to fall short of the minimum 10 percent landscape requirement for the interior of the parking lot by providing only seven percent. The applicant and even the staff report suggest that the requested area variance is not substantial, but Daniel Sack, applying the magic of mathematics, pointed out at the May 17 hearing that a seven percent interior parking lot landscape ratio is 30 percent less than what the code requires. That’s substantial. (Substantiality is open to interpretation by the ZBA, which must make a reasoned judgment as to whether a nonconformity being proposed is too great, as compared to the lawful dimensions prescribed by the code. In Heitzman v. Town of Lake George Zoning Board of Appeals, the court upheld a variance denial based in part on a finding that construction would have exceeded the allowable lot coverage by 15 percent.) Nothing particular to the site creates a practical difficulty for meeting the interior parking lot landscape requirement. The applicant is requesting the variance only to maximize the number of off-street parking spaces. The area variance should be denied, and the minimum 10 percent interior parking lot landscape requirement should be met. The applicant could feasibly do so by reducing the number of parking spaces provided to tenants, as the code allows, or by adding an additional story to reduce the building footprint, as the code allows.

Driveway Width. To constrain the space invaded by motor vehicles moving across a sidewalk intended for pedestrians, the Green Code limits double-lane driveways to 24 feet, or the width of two standard vehicle lanes on the New York State Thruway. The applicant seeks to increase the driveway width to three lanes (two moving lanes and one turn lane) at a width of 30 feet, or a 25 percent area variance, to jointly serve the project and an adjacent muffler shop. Section 8.3.2 of the code establishes a maximum width in feet and clearly states the intent of the standard: “The number and width of curb cuts must be the minimum needed to provide reasonable access to the site.” Two lanes and 24 feet is plenty.

The variance requests were tabled until the June 21 meeting.

298 Dewitt Street: An applicant sought an area variance from the front yard setback requirement to facilitate the combination of two former rear cottages on adjacent parcels to create one single-family house on a combined parcel. Since the front main buildings no longer exist, a strict application of the code would have required any horizontal expansion to meet the front yard setback requirement (to roughly line up with other detached houses along the same block). The rear cottages are set back 93 feet from the public right-of-way, so meeting the front yard setback requirement is clearly not possible. The ZBA granted the request.

16 Cleveburn Place: An applicant sought relief from a rear yard setback requirement to facilitate an addition to a single-family house. Because the lot depth is only 66 feet, and the code requires a minimum rear yard of at least 15 percent of the total lot depth (in this case, a minimum rear yard of 9.9 feet), this produced a practical difficulty for the applicant. The applicant proposed a rear yard of only four feet, and ZBA did grant the request.

Correction: The May 17 Zoning Watch incorrectly stated the diameter at breast height (DBH) of the street tree killed to construct a ZBA-approved front yard parking pad at 470 West Delavan Avenue. The Kentucky coffee tree was 21 inches in circumference, not diameter, at breast height. The DBH (circumference at 4.5 feet above ground level divided by π) was actually six and ⅔ inches. At least one member of the Zoning Board of Appeals also disputes whether the members considered the existence of the tree in making its bad decision. After reviewing the tapes for the meeting again, it turns out to be true that one of the two trees removed for the parking pad (one was in the front yard) was briefly mentioned, though it is unclear which. In making its approval, the ZBA established a condition that two trees be planted for the one (which tree, who knows) that is being removed. Giving the ZBA the benefit of the doubt that it was referring to the street tree, not the front yard tree, The Public will be following up to ensure that two replacement street trees are in fact planted at the applicant’s expense.

With 17 tabled agenda items rolling over to June 21, and the Elmwood/Forest proposal presumably on the same docket, it’s bound to be a very interesting Zoning Board of Appeals meeting next month. The Public will be there watching.