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Ellicott Development attorney: No tax abatement sought
By Joshua Maloni
To the disappointment of a room full of residents and business owners, the Village of Lewiston Zoning Board of Appeals granted Ellicott Development eight variances Thursday, bringing a proposal to build a 4.1-acre mixed-used plaza into municipal compliance.
Having already received second submission approval, the project can now go to the Board of Trustees for final approval.
Some of the 30 residents in attendance did not hear the ZBA vote, as they left in anger following a confrontation with board Chairman H. John Ritter, who abruptly ended a public hearing on the topic after 50 minutes.
Though members of the ZBA said they sympathized with residents, Ritter said the board's decision ultimately came down to the written words within the village law.
"Pretty much on that little black book," he said. "You can't deny people from building a business. Everybody in here's worried about their restaurant, their business. I can understand that. But that's free enterprise. That's what this country's noted for."
ZBA member Michael Swanson said, "My personal opinion is, is that (plaza) will create a hardship for the other businesses. But we don't vote on that. Our board has nothing to do with other businesses, or that business. We're voting on the variances."
Ritter noted, "What we personally feel can't enter into it. I'd like to see that pile of brush there for the rest of my life. We can't do that. They bought the property. They want to develop it. How can you say 'No'?"
Two of the plaza's three buildings would have frontage on Center Street, dipping down to Onondaga Street. The third and largest building, with a second floor of 13 apartments, would sit at the back of the property, bordering Onondaga and North Eighth streets. The proposal is estimated to cost $14 million.
The ZBA granted variances for:
•Three principal buildings on one lot, instead of just one. Approved 4-1 (dissenting: George VanHoose).
•187 parking spaces, which is 75 less than what is required. Approved 3-2 (Swanson, VanHoose).
•108 parking spaces measuring 9 by 18 feet, less than the code's stipulated 9 by 20 feet. Approved 4-1 (VanHoose).
•25 percent green space, which is 5 percent less than necessary. Approved 4-1 (VanHoose).
•A front-facing drive-thru on building No. 1. Approved 4-1 (VanHoose).
•9,964 square-feet of area coverage for building No. 3. The coverage is required to be between 2,000 and 5,000 square feet. Building No. 3 is 14,964 square feet. Approved 4-1 (VanHoose).
•Apartment unit size. Eight second-floor units in building No. 3 are more than the maximum 1,000 square feet (planned to be up to 1,300 square feet). Approved 4-1 (VanHoose).
•Two-bedroom apartment units (eight). Approved 4-1 (VanHoose). Technically, this variance was not required, as Zoning Officer Edward DeVantier already ruled in the applicant's favor on this request.
Sean Hopkins, of the Buffalo law firm Hopkins, Sorgi & Romanowski, spoke on behalf of Ellicott Development and its CEO, William Paladino. Hopkins said they appreciated the residents' passion. However, he said, "While the code is important, it's actually the complete converse is your intention, or your responsibility. And basically your responsibility, and that's pursuant to New York state law, is to consider applications for variances."
Hopkins said, "You're familiar with the law that applies with respect to granting variances. It requires you to balance the benefits and weigh those against any resulting detriments (to the health, safety and welfare of the surrounding neighborhood or surrounding community). In this particular case, we think the granting of requested area variances is justified, based on the law."
Hopkins also said if one or more variances stems from an alleged self-created hardship, as residents have claimed, that cannot be the sole basis for denial.
VanHoose said he voted against each variance because, "The codebook tells me this shouldn't be presented to the Zoning Board of Appeals until we get the (project reconfigured into a planned unit development)."
He added, "And I read it aloud. I've read it 16,000 times to different people. I've sent it to the mayor. I've sent it to the attorney."
The New York State Department of State affirms, "planned unit development district regulations are intended to provide for residential, commercial, industrial of other land uses, or a mix thereof, in which economies of scale, creative architectural or planning concepts and open space preservation may be achieved by a developer in furtherance of the village comprehensive plan and zoning local law."
VanHoose explained a planned unit development "allows you to have this mixed use. It allows you to have dwellings. It allows you to have shops and areas of recreation, all in the same lot - in a small lot like this one is."
The DOS says planned unit development regulations "shall be made with reasonable consideration, among other things, as to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality."
In May, when the ZBA initially granted the first five variances, Hopkins said the proposal was too far along for Ellicott Development to consider a planned unit development. On Thursday, he said, "That would be a distinct, separate zoning classification that the village would have to go and create. We're not zoned PUD."
South Fourth Street resident W.E. "Skip" Hauth said, "We, as stakeholders of the village, feel that this board is taking the approach, contrary to your charter, that the village code is a set of suggestions rather than a set of regulations."
Lewiston Town Clerk Donna Garfinkel, speaking on behalf of herself and her husband, Neil, owners of Sgt. Peppers Hot Sauces, Etc., on Center Street, said, "Although it has been said that Ellicott Development does not, at this time, know who their tenants will be, it appears they're headed in the direction of attracting chain stores. With many merchants in the village, at least 80 that are owned by our local residents, these shops are our livelihood. Bringing in chain stores will affect the small business merchant."
Kristen Trunzo, chairwoman of the Niagara River Region Chamber of Commerce executive board, and co-owner of the Hibbard's plaza and businesses, said, "We really have no idea what is coming into Ellicott Development. ... We have a very small community, and we all eat off the same piece of pie. And the more and more and more you split that pie, the less there is for everyone. I can see a lot of businesses getting very disturbed because their profit margins, every time something opens, are dropping down and down."
Onondaga Street resident Rich Donaldson said, "Chain restaurants that have been proposed will shudder some of our existing small businesses, and the project will forever erase the quaint ambiance that draws visitors, residents and businesses to Lewiston."
Hopkins said, "We do understand there's always a concern about competition. Will national companies lease space? Will they interfere with the operations of the existing businesses? We would note the following: We do not have any tenants identified. With that being said, can there or could there be national chains? Absolutely. Will the entire site be occupied by national chains? Absolutely not. If you look at those two buildings proposed out along Center Street, we have some smaller footprints. We're hoping that it will be attractive to local businesses.
"I would also remind this board ... zoning cannot be utilized to regulate competition."
Zoning Board of Appeals members Peter MacLaren, left, and H. John Ritter listen as residents discuss Ellicott Development's plaza proposal variance requests.
Speaking to Hopkins, ZBA member Peter MacLaren said, "Certainly you are very, very familiar with the zoning rules and regulations. ... In fact, I wouldn't hesitate to say you probably know a lot more than I do. But, I do live in the village, and I understand everything that everybody in this room - everything that everybody has said - and I am very sympathetic to a lot of things that are said. I also understand that you are making a living off this type of a thing.
"And, I think, that for something of this importance, and, one, we have a possible brownfield designation in question, and, two, because we are not represented by - and I feel we should be represented by a village or a town attorney - we need that kind of (counsel). ... I would favor not giving any approvals for anything until we get a legal opinion on what the village is getting into and what might possibly occur."
Despite those comments, MacLaren voted for all eight variances, which later prompted some catcalls from the audience to the effect of "Let's wait for the lawyer!"
"I am sure that everybody here really appreciates the fact that the developer's attorney is guiding you and telling you what the village code says. ... Who you should be listening to is your village attorney," Garfinkel said. "He (Joseph Leone) should be guiding you in how to read your law, and how it should be taken care of. Not the developer's attorney."
As several people started to raise their voices toward Hopkins over infrastructure and parking concerns, Ritter yelled, "That's enough!"
He added, "I'm tired of hearing about parking. Tell Artpark to close down. You won't have a problem with parking. Close down half the businesses. You won't have a problem with parking. The village will always have problems with parking."
Emery Simon, who owns the Lewiston Stone House wine bar across the street from Ellicott Development's property, said the plaza's parking configuration would make it difficult for fire personnel to reach the three buildings.
Lewiston No. 1 Volunteer Fire Co. director Barry Beebe said, "There are still accessibility issues. ... The turn radiuses, if we come down that ramp off of Center Street, we cannot go to the basements of building one and two. ... Anything possible that can be in our way, it's going to be in our way."
MacLaren proceed to yell at Simon.
"Emery, I don't know of a piece of property in the village that probably is more crowded than your piece of property where the Stone House is," he said.
"Absolutely. So we should learn from the mistake," Simon said. He added, "We should be using my property as a lesson, not as an example."
As residents asked why Simon's property was being discussed, Ritter said, "The guys that are complaining have already done all the wrong things."
This led to grumbling from many, which prompted Ritter to yell, "I'm going to close the public hearing, because this will last all night. The public hearing's closed."
Resident and Lewiston Council on the Arts Artistic Director Eva Nicklas had her hand raised to speak, but wasn't afforded the opportunity to do so. This led to an argument over the length of comment time in the Town of Lewiston relative to the time given in the village.
As residents moved out of the Morgan Lewis Boardroom and into the hallway, there was talk of filing an Article 78 formal legal challenge against the Village of Lewiston.
In all, about a dozen people spoke at the special meeting/public hearing, none voicing support for the granting of variances.
Starting with a residents meeting Sunday, plaza opponents have suggested Paladino will apply for a brownfield designation and avoid having to pay village taxes. They've speculated a portion of Ellicott Development's property, which is largely a shrub forest, is contaminated due to its history as a service station and junkyard.
In an email to the Sentinel Tuesday, Paladino said there is contamination; it was always his company's intention to remove it; and the brownfield program is an option. But, he stressed, the property won't be removed from the village tax rolls.
At the meeting Thursday, Hopkins said, "A soils test has been done. ... That phase one environmental report that was done did reveal that there could possibly be contamination on the site. ... The next step is we will have to do additional environmental testing. If the project is eligible, we would seek brownfield status from the DEC.
"Most importantly, from the perspective of not only this board, but from the village's taxpayers, that does not qualify Ellicott Development, or any other party in New York state, for a property tax abatement. That is simply not the case. The economic benefits that you may receive from the DEC are in the form of (income) tax credits that go back to the developer."
Hopkins added, "As Bill has indicated on the record before ... we are not seeking any property tax abatements from the Niagara County Industrial Development Agency or from any other governmental agency."
To sum things up, ZBA member Bart Klettke said, "I'll give you a rationale (for variance approval). Two words came up: 'walkability' and 'village charm.' They just identified a brownfield. How walkable is that? How charming is a brownfield that's contaminated? Let's do something proper with it - get it done right."
Shown above is a portion of the property's southeast corner.