RESIDENTS TAKE ACTION: Pictured above, Gail Wells (left) and Geneva Johnson at the Michigan and William intersection… Not pictured is Marcia Baker. The three have filed an Article 78 against the City and developers. Challenger Photo
Three residents of the Copper Town neighborhood have filed an Article 78 petition against the City of Buffalo Planning Board to undo the city’s March 25 approval of a development plan that includes a drive-through Tim Hortons at the corner of Michigan and William.
“We are fighting for the residents of a vibrant neighborhood who deserve a walkable, beautiful, safe community that honors the history of the Michigan Street African American Heritage Corridor,” said Gail V. Wells, who, along with Geneva Johnson and Marcia Baker, filed the petition.
Throughout the process since July 2018, residents raised concerns that were never properly addressed, according to Ms. Wells and her fellow petitioners. The city is required by law to evaluate such serious issues about safety, traffic intensity, noise, nuisance, litter, deliveries, and distracted driving.
“The taxpaying residents of Copper Town support economic development but we expect the law to be followed,” Ms. Wells said. “The neighborhood’s 100 homeowners have invested significant personal resources in the development of our community. We’re developers too.”
An Article 78 proceeding provides a way to challenge the rulings of administrative agencies, public bodies or officers. In this case, the body is the City of Buffalo Planning Board.
It is important to note that the corner of William and Michigan was not zoned for a drive through in the zoning law commonly called “The Green Code.”
When Ellicott Development submitted its plans, they received a notice of denial from the City of Buffalo Department of Permit and Inspection Services in June 26, 2018 because the Code did not permit a drive through. On September 18, the Zoning Board of Appeals (ZBA) had turned down the developer’s request for a change called a “variance” to allow a drive-through, but later, the City was forced to reverse its ZBA decision after Ellicott Development filed an Article 78. When concerned residents and citizen supporters of Copper Town attended a community meeting in December and learned of the November 2018 reversal, Councilman Pridgen was quoted saying as he left the evening meeting that “anyone can file an Article 78.”
Wells, Baker, and Johnson did so.
“It would have been very easy for the Law Department to point out the flaws in Ellicott’s petition. But instead they provided illogical arguments defending Ellicott,” said Ms. Wells. “They never really put forth a defense for the decision the Zoning Board made…”
Here is a timeline:
•June 2013 Paladino’s Ellicott Development, through its LLC 9187 Group, buys the lots 474 & 492 Michigan and 173 Elm from BEAR DEN PROPERTIES LLC for $350,000.
•June 2018 Ellicott Development submits its 474 Michigan proposal to Permit and Inspection Services. City Department of Permit and Inspection Services sends “Notice of Denial” because area is not zoned for the requested development, particularly the drive through.
•July 18, 2018 ZBA 474 Michigan Avenue -Construct Mixed-Use Building; Drive-Through Not Permitted (9454898). N-2C Zone. Section 6.1.1.B. Closed Public Hearing474 Michigan Avenue -Construct Mixed-Use Building; Drive-Through Not Permitted (9454898). N-2C Zone. Section 6.1.1.B. Tabled
•July 19, 2018 Community meeting called by Crystal Peoples-Stokes office to discuss the proposed drive through Tim Hortons. Community opposition to the drive through is expressed.
•September 19, 2018 ZBA, Old Business 474 Michigan Avenue -Construct Mixed-Use Building; Drive-Through Not Permitted. N-2C Zone. Section 6.1.1.B. Deny Variance
•October 22, 2018 Ellicott Development files an Article 78 to reverse the ZBA denial.
•Nov 15, 2018 Ellicott Development appears before Judge Diane Devlin to state that the City did not make the right decision regarding the request for a variance. The Developer’s lawyer asked that the Court direct the City to grant the variance. The City’s lawyer agreed with Ellicott Development instead of defending the City’s zoning board decision. With that, the ZBA denial was reversed.
•Dec 12, 2018 A community meeting was requested by Tom Fox of Ellicott Development. Quoting Mr. Fox in his message to community members: “As I’m sure you have learned, the ruling made by the Zoning Board of Appeals in September denying our use variance request for the installation of a drive-thru at the corner of Michigan and William was recently reversed as the denial was determined improper through an Article 78 proceeding. Given this turn of events, we will be resubmitting our proposed project for review by the City Planning Board in January.”
•Dec 19, 2018 Community meeting held and community reaffirmed its commitment to development, but not to producing bad development, which is how the drive through is viewed. At this meeting, Councilman Pridgen stated that “anyone can file an Article 78” in answer to the disappointment at the overturning of the ZBA variance denial.
•Jan 14, 2019 Public Hearing Planning Board 474 Michigan Avenue -New Construction of a Two-Story Mixed Use Building Tabled
•March 25, 2019 474 Michigan Avenue -New Construction of a Two-Story Mixed Use Building Approved Site Plan With Conditions
•April 24, 2019 Plaintiffs Gail Wells, Geneva Johnson, and Marcia Baker file an Article 78 against the City Planning Board
The court hearing has yet to be determined as the original hearing date of May 23 resulted in a delay request by the City.
-By Staff Writer