Citizens watch the sunset over the Great Lakes. Photo by Jburney
Citizens watch the sunset over the Great Lakes. Photo by Jburney

GreenWatch: Just Follow the Law

by / Jun. 19, 2016 10am EST

Just Follow the Law on Buffalo’s Outer Harbor

This would seem to the principled lay persons eye to be simple and obvious. However, when it comes to navigating the the insanity imposed upon us by the laws and regulations governing development, the build-out of the Outer Harbor-however that manifests, is a rats nest of contradictions, special situations, and of course special interests.

The City of Buffalo’s Greencode was undertaken to provide a more simple understanding, if not navigability, of the various zoning codes, restrictions, and opportunities for developers.  It has been aggressively pointed out by a strong cadre of concerned, educated, and thoughtful citizens that include property owners, residents, business owners, visitors, and other long time investors in the quality of life of our communities, that what may provide a fast track for developers, opens up a pandora’s box of ugly, often uniformed, and sometimes deliberate obfuscations that in general benefit few but the monied and often insider interests. This certainly creates an atmosphere that stimulates strong evaluations from entities that look to indict and prosecute those that deliberately seek to loot the public treasury. Why don’t we just follow the law?

The recent proposal to develop a 23 story glass residential tower on the Outer Harbor at the site of the old Freezer Queen site by Queen City Landing LLC, and Gerry Buchheit, reknowned as the man behind the sad story of the near physical disintegration of the Statler Towers on Niagara Square which is just across the way from Buffalo’s historic and beautiful art deco City Hall, is a case study that will be examined under a small lens for generations to come. 

Now, in a deja vu all over again echo chamber of destructive decisions by the Buffalo Planning Board, the Mayor’s office,  and the Buffalo Common Council are undermining all efforts to do the right thing with this development, all potential development on the Outer Harbor, and indeed, the potential for our region to grow and thrive. The right thing comes down to a simple but seemingly  evasive concept. Just follow the law.

In late May the Planning Board issued a Negative Declaration on the proposed glass tower.  This means that they found, after substantial public comments, presentations, and challenges, “no impact” on the environment or social and cultural concerns. The Negative Declaration is the easiest answer to any pressure by any developer to build something. It is the primary way to attempt to circumvent concerns and laws. It means that no work has to be done to evaluate threats. And in this particular case, the community has spent months describing and characterizing threats that this project may represent.  The Negative Declaration means that there are no requirements to further evaluate what are clearly articulated and documented  concerns.  The Mayor seems fine with the Negative Declaration, and this week on Tuesday, the Common Council may have the final say by voting to recommend a “Special Use Permit” for the project.

Enter the Dragon

Late last week, in what may be a prelude to a legal battle, Buffalo Niagara Riverkeeper (BNR) sent a strongly worded letter authored by noted environmental attorney Richard Lippes, to the Buffalo Common Council explaining in great detail the inadequacies of the Planning Board’s decision. It states that the Negative Declaration by the Planning Board was “improperly issued” and urges the Common Council to ask the Planning Board to rescind the Negative Declaration. It is one of the strongest statements ever made by BNR. It is full of information that you will not get from any other cheerleading media outlet covering this story. You should know. Read it please.

SEQRA and the Decisionmakers

According to informed attorneys and citizens, the obfuscations and gymnastics of the developer and it’s attorneys, and the actions of trusted agencies such as the Buffalo Planning Board and the Buffalo Common Council, skirted legal obligations related to the New York State Environmental Quality Review Act (SEQRA). Some are characterizing the Planning Board’s actions in issuing a Negative Declaration as one  of the most egregious skirting of responsibilities related to SEQRA that has entered the legal system in a long while. This is saying a lot.  SEQRA has been attacked continuously by the developer community in recent decades as an obstacle to progress.  Indeed, it has become a matter of course to avoid any scrutiny by issuing the Negative Declaration which means no action is required to address concerns, and our hands are washed.  Buffalo’s Greencode may be a manifestation of this as it seeks to streamline development. 

Simply put, those that seek to shrink government to a size that it can be “drowned in a bathtub” are winning this war against society. SEQRA is the primary tool that government and citizens have to evaluate the value of any given project. SEQRA looks at environment, historic preservation, and community character. It helps to determine real impacts, and provide strategies to remediate and lessen negative impacts. If done right, it brings voices to the table that are otherwise obliterated by powerful interests that have one issue, profitability for the particular shareholders. These voices include citizen voices which are often underserved or underrepresented communities. SEQRA is a necessarily complicated issue and here are some background briefings that are easy to read and may help you to understand what this is all about. 

SEQRA and Buffalo’s History of Non-Compliance 

What does Gerry Buchheits, Jeremy Jacobs, and the Pegulas have in common?


The Cost of Sprawl

 It may be necessary at this point to state the obvious, that profit is not a bad thing. However massive profit at the expense of communities is always something to be concerned about. Sprawl, which is a proven extractor of wealth from public treasuries, is low hanging profitability fruit for for powerful developers. It is all to often rotten fruit for the rest of us. 

Sprawl costs us all in ways that have harmed our own ability to become stronger economically. Buffalo’s and UB’s One Region Forward

and the Western New York Regional Economic Development Council (REDC)  declare sprawl to be a primary factor in increasing community debt, even in the best of times. 

This position and announced plans to avoid sprawl as requested by the Governor as part of the Buffalo Billion deal, was throughly vetted by all of the government entities and development agencies, and touted by governor Cuomo as part and parcel of why he decided to invest the Buffalo Billion here. We are shocked , just shocked that in the face of quick profits, all of this good work is tossed into the trash heap of announced intentions.

Gerry Buchheit’s 23 story glass residential building on the Outer Harbor meets the classic definition of sprawl. It is located at a significant distance from an urban center.  Because of that it will require substantial public investments in infrastructure (water, sewer, police and fire protection) not to mention the publicly funded brownfield clean-up costs which are also substantial. (Unless of course the clean up is a con-job)

This project which is characterized by the developer and mouthed by supporters and in the press as a $60 million “private investment” is wholly a con job designed to pick the publics pocket. The private investment is uncritically mouthed by supporters as the developers talking points are repeated uncritically, and deliberately by the media including the business community sponsored mouthpiece, the Buffalo News.

Whether or not there is an actual account reflecting a $60 million private investment is highly speculative. Public investment in this project could easily exceed the stated $60 million in “private” investments for the project.  

Let us add to these clean up and infrastructure costs the winter rescue costs when the building and its residents suffer through our well-documented winter lake effect, ice, sleet, big winter winds ripping down the length of Lake Erie. As many people that live here know, these are sometimes accompanied by icy seiches and storm-surges. This is one of the harshest places to build in our region. This is not Baltimore, Chicago, Cleveland, or Toronto. There is no way that the so called “tax-base” will provide any level of revenue to the community that will even begin to cover the costs of this misleading project. If you argue that the taxes will meet the public costs of this development, welcome to the idiocracy that has brought to us the government that is being exploited by the private sector powerhouses. I hope that you can “Make America Great Again.”  And we all hope that the liability insurance fully covers the probable costs in human lives that this project will subject to the harsh vagaries of a climate changing waterfront shoreline.

Why don’t we have an accounting of public costs and public benefits? Put it on the table so we can see it, smell it, feel it, and analyze it.  Is it because it reeks? The same goes for any development on the Outer Harbor. The ECHDC’s plans for a 100 blocks of condo’s on the Outer Harbor also evades accountability by not sharing the costs to the public.  Show us the money boys.  You may have some splainin to do.

The Buffalo Billion

Following closely in the footsteps of the continuing to emerge con and fraud associated with Solar City, this project emerges as a straw dog to see how far the Outer Harbor development power bases can go to get our money. Given the decline of local, regional, and national economic opportunities, this project is an economic recipe for disaster for taxpayers and will impact negatively the long term viability of our local economy. We, and future generations will suffer from our stupid decisions and acquiescence to a class of fraudsters.


More Outer Harbor SEQRA Issues 

The Outer Harbor and its shorelines are characterized by some as the most valuable and properties in the City of Buffalo and perhaps the region. They are also amongst the most fragile. This piece of property lies within a special Coastal Zone District and is affected by the Local Water Revitalization Plan (LWRP) both of which are part of the Buffalo Greencode. The Outer Harbor is on the shores of Lake Erie, a freshwater body that is part of 20% of the earth’s fresh surface water, and is challenged by pollution. This is our drinking water source. In addition, the site lies within a fragile corridor for bird migration. Birds are important to the health of our planet and this site is one of the more important bird migration areas on the entire planet. It is the gateway to the Niagara River Corridor Globally Significant Important Bird Area. These are serious legal and moral issue that need to be addressed by a transparent and inclusive Environmental Assessment of this project and all projects associated with development on the Outer Harbor. Avoiding this will create serious harm for future generations.

The Buffalo Planning Board declared itself the lead agency on this project. That makes them the decisionmaker of initial record. No other public entity challenges that. One assumes that this is because no agency or department has the resources or wherewith all to deal with the lead agency  issue. Have no doubt, they are aware of the issues and can’t afford to engage. Governement is drowned in the bathtub.  The Planning Board took its strange incompetence and apathy to a new level when it determined that there are “no environmental issues associated” with the project. This came in a surprise vote at the end of a long session in which community representatives were led to believe that a decision would not be forthcoming at this meeting.

The Planning Board then issued a “Negative Declaration” which means that the project can proceed.  Whether it is incompetence or malfeasance, the Planning Board’s decision is, according to legal experts, one of the most egregious and error filled SEQRA decisions that this region has seen in recent years. Which is going a long way since we are consistently faced with egregious SEQRA decisions by so called “lead-agencies”. The Planning Board has become  a tragic comedy lead by a group of head in the sand enablers, or worse. They do not represent the best interests of this community and given the Negative Declaration in this issue, all such future negative declarations should be viewed with extreme prejudice and scrutiny. This author feels that the entire planning board should resign, and that City Staff facilitating the Planning Board should be reassigned. All involved with this should be held accountable. This includes our elected representatives that have allowed this to happen.  The bottom line is that if community standards and accountability have to be upheld by the intelligent, thoughtful and concerned citizens, it will be done.

Here are some detailed analysis and overview’s of the situation. Local environmental attorney Art Giacalone has chronicled the process at his blog “With All Due Respect” 

-Planning Board’s approval of 23-story tower disregards the Common Council’s policies and goals for Buffalo’s waterfront 5 June 2016

-Buchheit’s Consultants Need to Do their Homework 18 April, 2016

-Guess What Gerry Buchheit has in common with Jeremy Jacobs Sr., and the Pegulas? 1 June 2016  

-Cancel the April 4th Planning Bd.hearing on the 23 Story Outer Harbor Tower  28 March 2016

Why can’t we Just follow the law?



Our Condolences -RIP

Development and planning decisions on the Outer Harbor in recent months have gone against what we think are in the  new Buffalo Green Zoning Code and the wishes of thousands of engaged citizens. Of course there are all of those special rules including “special use permits” which is where this project comes in. Special use Permits will negate all of the Greencodes goodness for citizens, and continue the business as usual, family-style, streamlined for developers.

The economic impact alone of these politically guided decisions  will help the downward spiraling local and regional resiliency into a free fall.  The losses to our community in the past few weeks orchestrated by the Planning Board and possibly implemented by the politics of the Buffalo Common Council’s tutelage by the Mayors office, and the guidance of some representatives of the Governors office are fundamental, irreversible, and escalating.  The downsizing of the Council several years ago, and the decision to make the Council the Lead Agency in development decisions regarding the Greencode and Specal Use Permits, may seem like a check and balance but it is not.  

Making the ever resource challenged Buffalo Common Council the responsible party for development decisions under the greencode is a lot like putting a hungry goat in charge of weeding the garden. But there it is.

We are not saying that the Common Council is incompetent, we are just saying that they lack the resources to adequately decide Greencode issues. The Council simply does not have the staff, the experience, or the institutional memory of making important decisions such as these.  For this we can thank the Buffalo News and the private sector soldiers including Carl Paladino, Chris Collins, and we now must assume, Governor Cuomo. This is the tell that says the government is being shrunk by the private sector and is intended to be drowned in the bathtub.  I am sure that there will be some good old boys backslapping when they read this.

Large elements of the controlling interests of the private sector love this. It is embraced by their hired politiicans. The goal is to eviscerate “regulations” such as SEQRA, so that the looting of the public treasury can go full Monty.  It has.

RIP accountability. RIP a sustainable future for all. RIP Buffalo.

Depending on the political vagrancies of those in higher elected office will continue to prove disastrous for the sustainable future of our community. What are we loosing? The opportunity to return the public lands of the shorelines of our waterways back to a partnership with the people.  Without that partnership, there will be war.

This Tuesday the Buffalo Common Council will make an important decision on the future of our community. Consider sending a message to the Mayor, the Council, and the media, and if you can, attend the Common Council Meeting Tuesday June 21 at 2pm in the Council Chambers.