A request to provide only 48 percent ground story front facade transparency for the new Dash's on Hertel was “approved with conditions” to require 60 percent rather than the minimum 70 percent. 
A request to provide only 48 percent ground story front facade transparency for the new Dash's on Hertel was “approved with conditions” to require 60 percent rather than the minimum 70 percent. 

Zoning Watch: The Green Code's First 100 Days

by / Sep. 26, 2017 5pm EST

When the Green Code was signed into law on January 3, the expectations were set high. Mayor Byron Brown, using the upper levels of One Seneca Tower as a stage set, claimed that new code “will greatly assist in the city’s transformation” and act as a foundation for Buffalo’s “renewal, rehabilitation, repurposing, and revival.”

Common Council President Darius Pridgen agreed, stating that “the last code was created to make Buffalo look like the suburbs,” while the Green Code would make Buffalo “look like Buffalo.”

Smart growth became the Green Code’s mission, attempting to encourage walkable development and discouraging if not reversing the conventional suburban development that has gradually eroded neighborhoods throughout the city.

Is the Green Code succeeding? It is too early to tell. The rubber hit the road on February 17, when the code was partially put into effect, and the pedal hit the metal on April 3 when it went into effect citywide. In the 100 days thereafter, 22 major site plan reviews, nine minor site plan reviews, 29 special use permits, 94 variances, two Planned Unit Developments, and two Zoning Map amendments have gone through the approvals pipeline. Each of these decisions is a record of how well the code is being administered by regulatory boards, followed by applicants, and defended by citizens.

Decisions to date should not define the code’s success or failure, but these first 100 days are likely to set the tone for the months and years ahead. Here are some emerging themes:

Walkable projects face fewer hurdles. The following projects would have required variances due to their density, mix of uses, and/or insufficient off-street parking under the old zoning ordinance, but secured relatively easy approvals under the Green Code:

  • 1299 Delaware Avenue. Construct a six-story mixed-use building with 60 dwelling units and ground-story commercial space.
  • 157 Great Arrow Avenue. Renovate a daylight factory for 72 dwelling units.
  • 79 Perry Street. Renovate an industrial loft building for residential, office, and a restaurant and brewery.
  • 2929 Main Street. Construct a five-story mixed-use building with 320 dwelling units and office and retail space.
  • 1 Seneca Street. Renovate two annexes for 137 dwelling units and construct plaza-level retail spaces.

Variance denials are up, but not high enough. Of the 94 variance requests, 25 (27 percent) were denied, 12 (13 percent) were approved with conditions, and 57 (60 percent) were approved. This is a 42 percent higher denial rate than in the six meetings of the Zoning Board of Appeals that preceded the Green Code’s effective date. Notably, seven of 11 (64 percent) use variances were denied. The ZBA would be cooking with grease if it could consistently apply the level of scrutiny that was evident at its most recent September 20 meeting, at which 11 of 21 (52 percent) variance requests were denied.

Most projects request zero variances. Of the 30 new construction and substantial renovation projects requiring site plan review, eight (27 percent) requested variances. Only three (10 percent) of these projects—1140 and 1166 Jefferson Avenue, 1764 Hertel Avenue, and 1111 Elmwood Avenue—arguably sought substantial deviations from the code’s letter (though not necessarily from its intent). This is evidence that applicants generally comply with zoning requirements and avoid the drama of appearing before the Zoning Board of Appeals. In the future, getting the percentage of projects requesting variances to below 10 percent would be a sign of success.

Parking-related variances dominate ZBA agendas. While such language was never heard from city planners pushing the zoning reform, the new code did “declare war on the car.” New standards generally prohibit parking in front and corner side yards, require extensive landscape screening and tree installation for parking lots, and emphasize pedestrian safety over motorist convenience in parking facility design, all while removing minimum parking requirements citywide. Now, the car culture is pushing back, with 27 of 94 (29 percent) variance requests related to parking placement and screening. Two North Buffalo projects show where a line in the sand has been drawn:

  • 2929 Main Street. With the ZBA pushing back, an applicant agreed to drop variance requests for a 30 percent reduction in the required parking lot interior landscape and allowance to remove 46 mature trees without full replacement in kind.
  • 1764 Hertel Avenue. Resident Jesse Smith alerted the City Planning Board that the parking lot for a proposed Dash’s supermarket failed to meet the code’s shade tree installation, landscape terminal island, and driveway flare standards—as a result, all were corrected prior to site plan approval.

Small-scale projects get streamlined approvals. In an attempt to reward smaller-scale, incremental development, the Green Code allows new construction and substantial renovation projects that fall below a certain threshold to be eligible for “minor site plan review.” This approval is purely administrative and asks two basic questions: does the project comply with the code, and is the project served by the services, utilities, and infrastructure required by the city? If the answer is yes to both, the project gets a stamp of approval and is out the door. Here are a few projects that benefited from this streamlined approval process:

  • 1501 Main Street. Renovate an 11,000-square-foot vacant building, including restoration of storefront glazing, for office space, a coffee shop, and one dwelling unit.
  • 178 Vermont Street. Construct a detached, handicap-accessible dwelling on a 29-foot-wide lot.
  • 1335 Hertel Avenue. Renovate a 7,000-square-foot mixed-use building, including reconstruction of the facade, to include a brewery and tap room.

Building width limits are tested. To preserve the diversity and granular character of the city’s historic neighborhoods, the new code established the first ever building width maximums in certain zones. So far, these standards have had no effect. Larger and larger buildings are being proposed and approved by the Zoning Board of Appeals—284- and 253-foot-long mixed-use buildings at 1140 & 1166 Jefferson Avenue, a 235 foot long grocery store at 1764 Hertel Avenue, and a 315-foot-long mixed-use building (divided functionally into two distinct building masses) at 1111 Elmwood Avenue. Two projects for a 180-foot-wide mixed-use building at 253 Virginia Street and 260-foot-wide multiple unit dwelling at 695 Genesee Street are now in the pipeline. The ZBA must take greater care to ensure that the intent of the ordinance is carried out, lest too many exceptions without proper foundation destroy the zoning itself. This will require a much more thoughtful approach to such variance requests, taking into account neighborhood character and the realities of development economics, than has been evident so far.

Public notice is improving. The city, thanks to one citizen who tracked public notice implementation monthly, is now requiring applicants to provide photo documentation demonstrating that notice (a 12-square-foot sign visible from the street) is posted at least 10 days prior to a public hearing. Posting notice is the applicant’s responsibility. Early on in the code rollout no procedure was in place to ensure compliance; therefore, few complied. Now, if an applicant fails to furnish proof of the posted notice, the application is removed from the City Planning Board or Zoning Board of Appeals agenda.

Transparency is key. Before the city’s online meeting portal was introduced in 2016, it wasn’t easy to access materials related to development approvals. If a citizen wanted to review application submissions, it had to be under the watchful eye of city staff during working hours, or through a FOIL request and possible 25 cent per page copy charge. Now, any citizen can access online the same information that is provided to the City Planning Board, Zoning Board of Appeals, and Preservation Board, with one exception. Staff reports provided to these regulatory boards are not posted online, as they are in the City of Rochester and countless other municipalities. Consequently, the general public does not see what professional advice—for example, whether in the opinion of staff an application qualifies for a variance—is being provided.

Speaking of transparency. The ZBA denied most of a variance request for reduced transparency at the proposed Dash’s supermarket at 1764 Hertel Avenue. After the applicant’s attorney claimed that every variance was “absolutely essential to move this project forward,” the request to provide only 48 percent ground story front facade transparency was “approved with conditions” to require 60 percent rather than the minimum 70 percent. The project is still moving forward.

The Green Code has been in effect for months and is now imperfectly impacting projects across the city. Before signing the new code into law, Mayor Byron Brown noted that Buffalo was only one of three cities—with Denver and Miami—to undertake a similarly sweeping and far-reaching reform. Whether this reform will continue to be taken seriously, only time will tell.