Project could be halted until it meets code compliance
By Joshua Maloni
Eight variances granted to Ellicott Development in July 2016 for its Lewiston plaza project were declared void on Tuesday. The village's Zoning Board of Appeals said the Buffalo real estate company failed to commence construction within the period of time listed in municipal code.
Furthermore, the ZBA said the project is now noncompliant with Lewiston law. As such, the board said Ellicott Development cannot continue work on the 4.1-acre plaza site until and unless variances are re-granted.
The board voted to hold a rehearing, but didn't set a date.
ZBA member Michael Swanson read village code Section 14-D (nonconforming uses and buildings; discontinuance): " 'Nothing herein contained shall require any change in plans, construction, or designated use of the building for which a building permit has been heretofore issued, and the construction of which shall have been diligently prosecuted within eight months of the date of such permit, and which entire building shall be completed according to such plans as filed within one year from date of this ordinance.' "
He added, " 'Whenever a nonconforming use has been discontinued for a period of six months, such use shall not thereafter be re-established' - so it has to be redone - 'and any future use shall be in conformity with the provisions of this ordinance.' That's 14-H."
As it's been nearly two years since the variances were granted, "Just that right there alone will rescind those variances. Those variances are no longer effective," Swanson said.
Zoning Officer Edward DeVantier said, "I was under the impression a variance was forever. It's not a nonconforming use. They got a variance. We can rescind them - I'm not saying that - but a variance is a variance."
"A land variance is forever," Ritter said.
"But there's a time limit on that variance; until it's constructed; until it's permanent," Swanson said. "And then it goes with that building or property. But if they don't build, then it goes away after a year."
"It goes away," Ritter affirmed.
Swanson later said, "What I read in the codebook is that they waited too long. They can't proceed."
No vote was taken on the matter of rescinding the variances.
Delays in construction of a new plaza on Center Street in Lewiston led the Zoning Board of Appeals to rule on Tuesday that previously granted variances are expired.
ZBA: Project Revisions Require Rehearing
The ZBA reviewed this section of village law as it voiced a desire to hold a rehearing on the eight previously granted variances. Members said a new review would be required if Ellicott Development moves forward with changes Ellicott Development CEO William Paladino presented to the Planning Commission last week.
Paladino requested to modify the already-approved site plan with the addition of a detention pond (in place of underground detention). In order to erect the dry holding area, neighboring property - said to be for sale - has to be re-subdivided, and southwest plaza parking lot areas reconfigured.
Planning Board Chairman Norm Machelor and Vice Chairwoman Anne Welch said the changes would be in keeping with the variances. Their committee unanimously approved the site plan re-subdivision, detention pond and parking lot changes, pending approval from Village of Lewiston Engineer Mike Marino, who was excused.
Following the Planning Board meeting, ZBA member George VanHoose said he would request a rehearing. On Tuesday, that's what he did - and the other three members (Swanson and newcomers Glenn Clark and Ken Bedore) were in agreement. Ritter seconded the motion, and the board unanimously agreed to take such action.
Ritter said, "If they're going to add to the project, which they're talking about, that nullifies the variances also."
"That's why we're having the rehearing," VanHoose said.
"It's because they're trying to add to the project," Ritter said.
"They're changing the shape of their property and making it bigger. I think it changes it so all the variances on there are squashed. So, they have to start over with their whole project," Swanson said.
"I agree," Ritter said.
A rehearing will require a public hearing.
Swanson said the previously granted variances made the plaza project code-compliant. However, "Now that it's a different lot, it's changed."
He cited village code Section 14-I (changes), which reads, in part, "Once changed to a conforming use, no building or land shall be permitted to revert to a nonconforming use."
"We made it conforming by passing the variances. Now that it's a different lot, it's changed."
Swanson also said he believes the proposed plaza addition would make the adjoining divided property nonconforming.
"(The) Planning (Board) subdivided that lot where Vincenzo's is, and Sue's Frame of Mind. There's also an apartment or two apartments, I'm not quite clear exactly. But they need parking. It's off-street parking," he said. "Each dwelling needs two parking spaces. And the businesses each need a minimum of one for the employee, if not for the patrons. They eliminated all the parking in the back (by dividing the land)."
The Planning Board is only a recommending board, so the proposed plaza changes would have to be approved by the Village Board. Technically, then, nothing changed last week that would void the variances.
That point is moot, however, now that the ZBA considers the variances expired based on the construction time lapse.
In an email to The Sentinel on Saturday, Paladino wrote, "Regarding Lewiston, I did do all my due diligence upfront and their delays before our last approval seriously hampered our development and we lost substantial tenancies.
"From the beginning we tried to do a detention pond because we know underground is so expensive and they said no they don't want one, so I tried to do it their way with underground detention. The numbers were even higher then I could ever envision so that is what precipitated the request for the change. The additional property was acquired more so to assist in eliminating some further cost being the retaining walls and make the plaza more aesthetically pleasing and to add some parking. It's a better plan."
He added, "We did (our due diligence) and Planning Board members know we did. I asked in the beginning and knew a pond was the way to go. We asked to find places to place on site or along Onondaga and they said 'No.'
"They didn't want one, so we tried it differently. The project would maybe have still been affordable the old way if we would have still had our original major anchor tenants, a pharmacy and McDonald's, who we lost because of the long, contentious planning process."
Can ZBA Opinion be Reversed?
State law says the ZBA has appellate jurisdiction to make decisions independent of the Village Board of Trustees. As such, the board's assessment that the variances are void can only be reversed by a technicality, something contradictory in state law, or by a court order.
The ZBA did not list the project on its agenda, include it in a legal notice, inform Ellicott Development or hold a public hearing. It's unclear if any or all of these steps were required, as the board's statement on repeal was based on code and not the result of a petition.
The Sentinel was unable to reach village counsel Joseph Leone prior to deadline.
On Thursday, Building Inspector Ken Candella said demolition permits were granted to Ellicott Development for the plaza. That, in his opinion, counts as proof of work toward construction. When paired with ongoing discussions between the project applicant and the village, and approved modifications to two of the plaza's proposed three buildings, he said the timetable should have reset.
Project Liaison W.E. "Skip" Hauth said his oversight team, which includes DeVantier and Candella, is still moving forward. He said he agrees a re-assessment would be necessary with site plan changes, but did not concur with the ZBA's construction clock.
"I don't view it that way," he said.
"My actions at the moment continue to move forward with those activities that are making the assumption that the project is in a state of proposed change that requires review and requires reaffirmation that the project is acceptable to the village," Hauth said.
His project team was set to meet Friday after The Sentinel went to press.
In May 2016, five of the variances in question were revoked by the ZBA when it was learned the board violated New York State General Municipal Law, Article 12B, Section 239, which requires specific actions to be referred to Niagara County for review if they involve issuance of a special permit, approval of a site plan or subdivision, granting of a use or area variance, among other things, when certain conditions exist - in this case, the project falling within 500 feet of a state roadway (Center Street).
The variances were re-granted less than two months later.