> by Art Giacalone

There are plenty of things to like in the recently-unveiled ”Green Code” (known officially as the “Unified Development Ordinance” or UDO). The image of a walkable, bicycle-friendly city. Tree conservation and open space. Designs for “complete streets”, including traffic calming measures and “road diets.” Environmentally-friendly roofs, etc. And there is no reason that the laudable aspects of the plan that has been touted by Mayor Byron W. Brown since 2010 should not become the city’s official policy.

But the attractive aspects of the Green Code disguise a comprehensive land use and development plan that replaces the ultimate goal of zoning—promotion of public health, safety and general welfare—with a single-minded push for economic development.

Under the Brown Administration’s scheme, zoning is no longer seen as a tool to protect residential streets from the increasing encroachment of commercial activities. Instead, it is but one more tool to further “economic development,” by providing a mechanism for commercial uses to spread to virtually every residential block in Buffalo.

As reflected in Mayor Brown’s October 22 press release, the quality of life of Queen City residents has become little more than an afterthought:

The Green Code ... is the key element of Mayor Brown’s place-based economic development strategy aimed to further promote private and public sector investment, facilitate job creation, restore the environment and improve Buffalo’s quality of life for residents.

But a funny thing has happened during the half-decade that it has taken for the Mayor’s Office of Strategic Planning and a gaggle of handsomely-paid consultants to produce the latest version of the so-called “Unified Development Ordinance.” According to Brown, Buffalo has experienced “over $5.5 billion in new economic growth.”

In other words, the city’s current zoning ordinance has not been an obstacle to a major economic boom. This reality was underscored by the venue chosen for last week’s announcement of the filing of the Mayor’s Green Code proposal with the Common Council. Mayor Brown’s exuberant promise to “revolutionize the development process” was proclaimed from an outdoor podium at Larkin Square. The thriving Larkinville district, as well as projects such as HarborCenter, and the new Delaware North headquarters at Delaware and Chippewa, have grown and prospered despite the absence of the Green Code.

The fate of the Unified Development Ordinance lies in the hands of Buffalo’s Common Council. As the city’s legislative body, the nine council members have the ultimate authority to approve, modify, or reject the 334-page proposal. Here are some observations I urge them to keep in mind:

1. As proposed, the draft Green Code would allow commercial and non-traditional residential activities on virtually every residential street.

The Brown Administration and Green Code advocates are enamored with the concept of “mixed use” neighborhoods where everything residents need is theoretically within easy walking distance of their homes. At the October 22 media event, Leslie Zemsky—known as the Larkin Group’s “Director of Fun”—told the assembled crowd that the Green Code would create “fun” by bringing back mixed use communities.

While that concept may sound attractive to the 20- to 40-year-olds and empty-nesters coveted by downtown developers, many City of Buffalo residents may not be enthralled at the thought of the following activities being allowed on their tranquil residential streets: restaurants (including live entertainment), retail and service stores, professional offices, industrial artisans, and taverns. But that is precisely what is being proposed in the latest version of the Green Code for the vast majority of residential streets—in the University District, Parkside neighborhood, the West Side, the East Side, South Buffalo, the Fruit Belt or the Elmwood Village—through a device referred to as “neighborhood shops.”

In its current form, the Green Code would allow a “neighborhood shop”—including a tavern—to be established in so-called “N-2R” and “N-3R” zones within “an existing commercial building,” even if the structure was last used for commercial purposes generations ago, if an applicant obtains a special use permit.

But even on blocks without a pre-existing commercial building, residential streets throughout Buffalo would be subjected to the following uses on any lot: a bed-and-breakfast (with up to 10 guests); a cultural facility or place of assembly; a group home for unrelated persons with disabilities (including those who have undergone treatment for alcohol or drug addiction); “public safety facilities”; and a “market garden” open to the general public.

2. The draft Green Code would bring more uncertainty—not less—to Buffalo’s residential neighborhoods.

The Mayor’s propaganda machine promised a new land use code that would bring “clarity and predictability” to the zoning process, allowing neighbors to have “certainty about what can and cannot be built next door.” Unfortunately, the proposed Green Code does just the opposite. By creating the potential for a wide variety of non-residential uses in residential neighborhoods through overuse of the “special use permit” process, residents on the vast majority of Buffalo’s residential streets—whether homeowners or renters—will be burdened with the possibility of living next door or down the block from unwanted commercial activities.

3. The “Special Use Permit” process provides much less protection to nearby residents and property owners than zoning amendments and variances.

In its latest iteration, the Green Code’s “Principal Uses” table depicts the “Special Use” symbol more than one hundred sixty (160) times. That means that there are 160 different circumstances where a use might be available. And that number does not include the availability of special use permits to establish or expand a “neighborhood shop” in a building originally constructed for commercial usage.

An activity requiring a special use permit is not allowed “by right,” but requires a property owner or authorized person (for example, a businessperson who does not own the property) to apply to the Common Council for a “special use permit.” The Green Code’s widespread reliance on the special use permit process not only creates uncertainties for nearby property owners and residents, it provides little protection and creates a false sense of security.

Developers and the business community generally prefer special use permits. New York’s courts have consistently ruled that when a legislative body—such as the Common Council—includes a use in a zoning law as an allowed activity if a special use permit is granted, it is making a finding that the use is in harmony with a community’s general zoning plan and will not adversely affect the neighborhood. For that reason, an applicant possesses a much greater chance of obtaining a special use permit than it does a zoning amendment from the Common Council, or a variance from the ZBA. Not only are special use permits the easiest type of zoning approvals to obtain, they are the hardest approval for an unhappy neighbor to overturn in court.

4. The Green Code team fails to adequately explain why the proposed new law emphasizes “Form”—that is, the types of buildings—over “Function”—how the buildings will be used.

The authors of the draft Buffalo Green Code have chosen to push aside the traditional approach to zoning and land use regulations—which emphasizes how land and buildings are used—and, without adequate justification, have proposed a “form-based code” where emphasis is on the type of buildings that are allowed, rather than the activities that are taking place in the building.

Hand-in-hand with the “form-based” approach taken by the Mayor’s Office of Strategic Planning is an effort to equate the physical look of a neighborhood or street with its “character.” While the “form” of buildings—especially their size and proximity to neighboring parcels —affects the character of a neighborhood or community, it is often the type of activities which occur within and around that structure that has the greatest impact on nearby properties and uses, especially nearby residences. This fact would be especially true if an existing building—constructed decades or a century ago for commercial usage but presently used for residential purposes—were allowed under the Green Code to revert back to a commercial activity as a “neighborhood shop.”

5. The Green Code’s proposed elimination of all minimum parking requirements is unfair to existing businesses and nearby residential neighborhoods.

The Brown Administration has chosen to eliminate all minimum off-street motor vehicle parking requirements in its proposed zoning ordinance. The Mayor’s staff calls this a “market based approach,” based on the fiction that developers wishing to construct a new building, or expand an existing one, will always make certain that their tenants and customers have adequate parking facilities.

In the real world, however, developers are often tempted to skimp on off-street parking if given the opportunity, preferring to construct larger buildings that will provide additional revenue. When that happens, tenants and customers are compelled to park on the street. In areas where parking is already at a premium, existing businesses suffer when their lots are used by someone else’s customers, or their own customers can no longer find on-street spaces nearby. Worst of all, the excess parking spills over to neighboring residential streets, bringing with it noise, loss of privacy, and inconvenience.

It is ironic that a proposed land use plan that eliminates the requirement that businesses provide off-street parking spaces for motor vehicles is being presented to the Common Council simultaneously with the news that the U.S. government is providing an additional $18 million to finish the task of returning cars to Buffalo’s Main Street. Here’s Mayor Brown’s reported comment concerning the federal aid:

“This will give us everything we need to have a beautiful lower Main Street that stimulates additional investment and job creation.”

6. The latest version of the Green Code fails to preserve the character and historic fabric of the Elmwood Village.

Mayor Brown’s recent press release echoes the promises made throughout the Green Code process that the new zoning code would encourage buildings “that fit our historic city patterns.” But the latest edition of the proposed Uniform Development Ordinance—while less destructive than earlier version—would eliminate the very features of the current zoning ordinance that have reinforced and preserved the historic fabric of the Elmwood Village and nurtured the balance between residential and non-residential uses: substantial limits on the intensity and scale of commercial uses on Elmwood Avenue.

As currently written, the Green Code would allow so-called “Commercial Block” buildings up to 5-stories in height, and as wide as 120-feet on much of Elmwood Avenue. These structures, if built on a typical Elmwood Avenue lot with a depth of 140 feet, would contain nearly 75,000 square feet of floor area. In contrast, the two-story iconic building that Café Aroma shares with Talking Leaves book store at the southeast corner of Elmwood and Bidwell Parkway has 7,500 sq. ft. of floor area; Mr. Goodbar is a 2-story building with a total of 6,930 sq. ft.; and, Casa-Di-Pizza, also two-stories in height, sits on a 64-foot wide lot and weighs in at less than 11,500 square feet.

But it is not only the incongruent scale of the “Commercial Block” buildings envisioned by the draft Green Code that threatens the historic fabric of the Elmwood Village. Many of the lots in the Elmwood Village are only 30 to 40 feet wide. Allowing buildings 5-stories tall and 120 feet wide would encourage speculators to purchase and demolish rows of century—old residential structures—the essence of the Elmwood Village’s character. And the Mayor’s proposed development ordinance would prohibit construction of any new dwellings—whether in the form of attached or detached houses—on Elmwood Avenue, despite the historic neighborhood’s blend of residential and commercial structures.

And that’s not all. In sharp contrast to the inviting green lawns that have adorned so many of the Elmwood Avenue properties, the proposed zoning law mandates—in the name of “walkability”—that all structures be built right at the sidewalk with zero setback.

7. Rather than protect the low-income residents of McCarley Gardens and the Fruit Belt neighborhood from encroachment by the Buffalo Niagara Medical Campus, the draft Green Code would increase the threat and pace of displacement and gentrification.

The draft Green Code classifies the McCarley Gardens site at the corner of Michigan Avenue and Virginia Street as a “Residential Campus.” While at first glance that may sound reassuring to the 140+ families living in the predominately black, low-income townhouse development in the shadows of the Buffalo Niagara Medical Campus, the details suggest otherwise.

In the hands of ardent “mixed use” proponents, the term “residential” just does not mean what it customarily does. The Brown Administration’s land use plan does little, if anything, to protect the current residents from being pushed out of their homes in order to make way for new and profitable development. To the contrary, by virtue of the types of uses that would be allow on the so-called “Residential Campus,” the Green Code as currently drafted provides a major incentive for developers to purchase and demolish McCarley Gardens. The 23 townhouse buildings could be profitably replaced with an up-scale project that could include everything from medical clinics, residential care facilities, professional offices, and retail and service establishments, to hotels, restaurants (with outdoor dining and live entertainment), and taverns.

Additionally, the draft Green Code’s lengthy list of non-residential uses and sizeable buildings permitted alongside the medical campus and on the predominately residential streets of the Fruit Belt neighborhood will fuel the speculative purchase of properties and gentrification—the displacement of the current homeowners and tenants in the historic community to the east of the medical campus.

The Green Code is now in the hands of Buffalo’s Common Council. We can only hope that each one will soon be able to answer the question: So, what activities could occur on my block if the Green Code is enacted?