An artist's rendering of the proposed Dash's expansion on Hertel Avenue.
An artist's rendering of the proposed Dash's expansion on Hertel Avenue.

Zoning Watch: How a Code Shapes a City

by / Jul. 19, 2017 7am EST

The Green Code has been in effect citywide since April 3 and it’s already busy at work shaping Buffalo. A zoning code, like a filter through which each increment of physical investment is pressed, can have a profound effect on the form and function of a city. The applications reviewed in the past month show this process of incremental change at work. Here’s what you need to know:

Coffee roastery coming soon. The City Planning Board, at its July 17 meeting, recommended approval to the Common Council of a special use permit for a Tipico coffee roastery and tasting room at 202 Rhode Island Street. This will be the second “artisan industrial” use to be approved under the Green Code—the first being a craft brewery at 1335 Hertel Avenue back on March 21. The new code allows for “artisan industrial” uses, defined as any manufacturing use involving small scale production or assembly with no noxious byproducts, in any zone where retail uses are allowed. This policy change is good news for “makers,” who were previously required to be in an industrial zone to conduct even micro-scale, zero-impact manufacturing under the now repealed 1953 zoning ordinance.

Art gallery coming soon. The City Planning Board, at its July 17 meeting, recommended approval to the Common Council of a special use permit to convert the vacant Immaculate Conception R.C. Church, 150 Edward Street, to an art gallery (Assembly House 150). The new code deems a “cultural facility” an allowed use in the N-2R Residential zone. The project would have required a use variance—with a substantially higher threshold for approval—under the previous code.

LED billboards coming soon. If the Green Code fell short anywhere, it would likely be in the liberalization of policies toward off-premise signs (billboards) and so-called Electronic Message Centers (EMCs), which are the blazing LED advertising screens often seen outside of strip clubs and used car dealerships in Cheektowaga. Presumably due to pressure from the sign industry, the Green Code legalized billboards and EMC signs in parts of downtown Buffalo (the N-1C Mixed-Use Core zone) and elsewhere. Now, you’ll start seeing these tacky signs popping up. The first such LED billboard, at 110 Genesee Street, was approved by the Common Council on May 30, and the second, at 51 Broadway, was recommended for approval by the City Planning Board on July 17.

Beer garden coming soon. The Common Council, at its July 11 meeting, approved a Zoning Map amendment—the first such approval since the Green Code went into effect—to allow for an outdoor beer garden at the Buffalo Brewing Company, 314 Myrtle Avenue. A Zoning Map amendment is a tool vested in the Common Council that allows for a change in the Zoning Map in response to changed conditions or changes in City policy. Normally, a Zoning Map amendment would be a last resort—projects should generally comply with the zoning, rather than the zoning changed to conform to the project. In this case, the project was perhaps mistakenly mapped in the N-2R Residential zone, which allows for artisan industrial uses in certain cases, but only if the use is “conducted wholly within a fully-enclosed building.” 314 Myrtle Avenue is surrounded by commercial uses in differently designated zones that allow for such uses, including outdoors. This is a case of an appropriate use of the Zoning Map amendment. Beer under a shady tree, coming soon!

Bullet dodged. Dash’s Market withdrew a proposal to remap 1764 Hertel Avenue from N-3C Mixed-Use Center to D-S Strip Retail, and the Common Council, rather than make a decision on the Zoning Map amendment, referred the proposal back to the Legislation Committee on June 27. Essentially, the applicant sought to remap a single parcel so that few design requirements aimed to create a comfortable and inviting street for pedestrians would apply to an expanded 47,500 square foot Dash’s Market. Had it been approved, the Zoning Map amendment would have provided a template for any future developer: to make sprawl great again, simply remap your parcel to D-S Strip Retail. North Buffalo resident Jesse Smith, at the June 20 public hearing before the Council’s Legislation Committee, rightly called the proposal a potential “Pandora’s box.” Dash’s is now proposing 12 area variances—including from window transparency and parking lot standards that are intended to promote an active public realm—to be considered by the Zoning Board of Appeals on July 19.

The Zoning Board of Appeals, the five-member body considered to be the principal line of defense protecting the letter and intent of the Green Code, is where most of the action is. The ZBA’s June 21 meeting, at which 26 projects sought altogether 40 variances, was a marathon lasting 5 hours and 41 minutes. Here’s a few key updates from the meeting:

Posted notice improvements. Of 26 applicants, only three failed to post the required notice (a 12 square foot sign visible from the street) on the property at least 10 days in advance of the June 21 public hearing. This 88 percent compliance rate is significantly better than the 16 percent compliance rate logged at the May 17 meeting, so procedures at City Hall must be improving. Due to inadequate notice, the public hearings for variances at 122 Gibson Street, 65 Louisiana Street, and 135 Herman Street were canceled.

Use variance confusion. To allow applicants to provide competent financial evidence demonstrating qualification for a use variance, the ZBA tabled the requests at 80 Milton Street (to establish a contractor storage facility in the N-3R Residential zone), 109 Mayer Avenue (to establish a contractor storage yard in the N-3R Residential zone), 2695 Bailey Avenue (to establish two permanent storage containers in the D-S zone), and 700 Military Road (to establish a self-storage use in the D-IH zone). The ZBA did not appear to understand what meets the approval threshold for a use variance, so here’s a reminder from Section 11.3.5 of the UDO: To allow a use not otherwise permitted in the zone, an applicant must prove unnecessary hardship. In order to prove unnecessary hardship, the applicant must demonstrate that for each and every allowed use in the zone:

1. The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence.

2. The alleged hardship relating to the property in question is unique and does not apply to a substantial portion of the zone or neighborhood.

3. The requested use variance, if granted, will not alter the essential character of the neighborhood.

4. The alleged hardship has not been self-created.

The Zoning Board of Appeals, in granting a use variance, must grant the minimum variance deemed necessary and adequate to address the unnecessary hardship and protect the character of the neighborhood and the public health, safety, and welfare.

The first use variance approved. In spite of the ZBA’s confusion regarding the other use variance requests, it did approve the first ever use variance since the Green Code was put into effect. A proposal at 1002 Abbott Road sought to reestablish a gas station at a site where the infrastructure for a gas station is still in place. Since the proposal was to reestablish a nonconforming use that had simply lost its grandfather status, the application is likely the first to actually qualify for a use variance, but it’s hard to tell if unnecessary hardship was proven. Upon questioning by the Board, the applicant hastily assembled financial evidence on a wrinkled sheet of paper and handed it to one of the members, who then held it up as though it were as authoritative as the Ten Commandments delivered from Mount Sinai. The public was not afforded the opportunity to review this evidence, but the ZBA made an approval based on it.

Minor area variances approved. Contrary to popular belief, the ZBA is “enforcing the Green Code” when it approves minor area variances that are consistent with New York State approval criteria. In approving an area variance, the ZBA is required to make a balancing test—to balance the benefit to the applicant against the detriment to the health, safety, and welfare. In several cases, the ZBA determined that the intent of the code in protecting the public welfare was upheld in spite of minor deviations from the code’s letter:

  • 1657 Broadway. Construct an addition to an auto repair garage, deficient in required rear yard.
  • 2515 Delaware Avenue. Construct an addition to connect two existing structures, not in compliance with front yard, build-to percentage, and rear yard standards.
  • 324 Elmwood Avenue. Conduct vehicle sales as an outdoor use (use allowed, but must be within a fully enclosed building, in the N-2E zone). As a condition of approval, the Board required that a Type D buffer yard or masonry wall be erected between curb cuts.
  • 806 Kenmore Avenue. Construct a 66 space parking lot, insufficient in parking lot perimeter landscape (minimum 5’ buffer required, only 1.5’ requested) and interior landscape (minimum 10% required, only 5% requested), and in excess of permitted fence height (up to 4’ allowed, 6’ requested). As a condition of approval, the Board required that interior parking lot landscape be increased to 8% of the area of the lot.
  • 2317 Niagara Street. Construct a single-unit dwelling with a garage deficient in required setback.
  • 175 Nottingham Terrace. Install a fence in excess of permitted height (up to 4’ or 6’ allowed, 8’ requested). One resident stated, perhaps correctly, that the fence would be the “most beautiful fence erected in Buffalo since the Larkin Administration Building was built in 1904,” and that a 4’ vinyl fence from Home Depot would be allowed as-of-right.
  • 437 Rhode Island Street. Construct a four-space parking lot in an interior side yard (location not allowed) and erect a fence in excess of permitted height (4’ allowed, 6’ requested). The variance was granted on the basis that no practical alternative existed for the applicant (there is no rear yard, where parking must be located), and because of the nature of the improvement (permeable pavers, an attractive fence, and a sculpture will replace a vacant lot).


Parking pad smack-down. The ZBA denied the Buffalo Municipal Housing Authority’s bid to expand front yard parking pads at 16 Lockwood Avenue, 138 Tennessee Street, 80 Troupe Street, 16 Trowbridge Street, 77 Trowbridge Street, 104 West Woodside Avenue, and approved preexisting parking pads at 42 Rugby Road and 56 Rugby Road.

Lexington Co-Op sign denial (sort of). In a surprise move, the ZBA proved that a popular use (the Lexington Food Co-Op) could not simply receive an area variance because it was popular. The applicant had requested two signs with a total sign area of 90 square feet at 1678 Hertel Avenue, while the N-3C zone allows for only 35 square feet of total sign area per establishment. This would have been a 157% area variance, well enough to be considered substantial, and the Board had previously denied area variances for signs that were as little as 60% above the allowed sign area (388 Amherst Street, for example). The ZBA “approved with modifications” a proposal that allows for up to 45 square feet of sign area (a 28.5% area variance), or only one of the two proposed signs.

Big decisions put off: The ZBA tabled hot-button items at 2929 and 2939 Main Street (at the applicant’s request) for front yard, interior side yard, tree conservation, interior parking lot landscape, and driveway width variance requests, and at 1111 Elmwood Avenue for building height, building width, ground floor level height, ground story height, window sill height, and frontage type variance requests. A request to establish a fence in the right-of-way of Colonial Circle, part of the Olmsted Parks & Parkways Historic District, was withdrawn by the applicant due to objections by the Preservation Board.

The Zoning Board of Appeals meets next on July 19, when it could take action on 62 variance requests for 26 projects. It is likely the longest ZBA agenda in Buffalo’s history.