More on Apartments, Development, and the Master Plan

Dear Islanders,

Do you know we have more shoreline than any other town on the Niagara River, but we are the only one that does not have a Local Waterfront Revitalization Plan (LWRP)? Nor do we have a current Master Plan. In fact, we don’t have a great deal of the basic planning framework in place that other communities have to ensure our land is protected and that we are headed in the right direction.

I’m trying to change that. I’m not anti-development, or anti-developer, or anything of the sort. Remember, I come from the cutthroat corporate law world. I’m no lost lamb in the woods. And development done right— is great. But development done wrong is what we have too much of in America. I’ve said it before, and I’ll say it again, we don’t want Grand Island to become another cloned world of chain restaurants, big box stores, and apartment complexes. 

This is why we need a plan

By now I hope you know, I’ll stand up and for what I believe is right. And right now, I’m fighting for a Master Plan (including an LWRP). We worked for and received a $40,000 grant to pay for a planner. At the same time, we’re working on a farmland protection plan, grants, and projects to preserve green space and promote eco-tourism. As I am fond of quoting, the Bible says, “Where there is no vision (plan), the people shall perish.” We are working hard to get our plan in place. 

But for a plan to meaningful, it can’t just be something I whip up on my computer one evening alone in front of Netflix. There needs to be community input from all stakeholders, including residents, land owners, developers, ecology and conservation groups, etc. All these stakeholders and more are working diligently under the leadership of Deputy Supervisor, Jim Sharpe to shape the plan.  I hope the major work will be finished close to the end of this year. And then I will do my best to communicate with the town what the plan looks like and means.  

We need a moratorium

Until the plan is done, I will ask for a moratorium (temporary stoppage or pause) on new apartments. I’m not saying apartments are inherently evil. And I’m not saying all the current complexes are bad. For many, apartments offer a housing alternative they either need or prefer. But I don’t think any of us want any more mega projects springing up unexpectedly. And I think for many families, having a home of their own (that they can take care of and invest in) remains the American Dream. 

Even if I get my moratorium, however, we should all understand that we can’t indefinitely stop people from building on land they own.  The Master Plan can protect, but there will always be—and has to be— commercially zoned areas.  Therefore, some development is bound to continue. But the Master Plan gives us more control over what is built and where. To help you understand how projects get built, I wanted to give you an overview of the process.

STEP ONE: Consult with the Town

Before they even start, a smart developer will come in and consult with the Town Building and Zoning officers and Town Engineers. The Town cannot provide any sort of professional consultation. In most cases, a developer will hire a professional to assist them.  The Town is merely a check on the work that the professional carries out. A large part of what the Town employees do (and the Engineering Department in particular does) is review the plans to make sure that they do not overburden town-owned assets. For example, they check to see if the project will flood a stream or overflow the sewer, etc. 

STEP 2: Move up to the Planning Board

The next step is a review of the developer’s plan by the Planning Board. If the building inspector identifies any variances during the consultation process that are needed (things that don’t fit the code exactly), the developer must get approval from the Zoning Board of Appeals. Under Town Code, if the Developer wants to have zoning completely changed, it must go directly to the Town Board. For example, if a developer wanted to put a high-density development on a property zoned for single-family units, they would need approval from the Town Board directly. The Town Board may, however, ask the Planning Board for input on the proposed change. 

If a plan has jumped all zoning, building, and engineering hurdles, the Planning Board can’t decide not to recommend the project and the Town Board can’t just reject it out right. But they do have some discretion to ensure the plan fits into their interpretation of the Town Code. This can turn into a bit of a tug of war, and if there is a decision a developer does not agree with they can appeal to the Zoning Board of Appeals for a new interpretation of the Code. Beyond that, the developer could eventually appeal to the Courts (under an Article 78 action), but that rarely happens.

STEP 3: Town Board hears your input and then can give the OK

Once a project is approved by the Planning Board, they pass along their recommendation (and it is only a recommendation) to the Town Board. Guess what? The Town Board can reject any project if they have reasonable grounds to do so. They simply can’t say, “I don’t like pizza places,” but there are plenty of other legitimate reasons they could reject a project. And generally, the courts give plenty of discretion to Town Boards. Courts do not like to act as super legislatures.  And you should note, the Town Board relies heavily on public input. If there is a project and no one speaks up, how is the Board to understand the concerns of the community? So, please speak up if you have a concern.

But please be aware, New York law does not allow the Town Board to reject a project simply because it is unpopular, there has to be legitimate reasoning. So, when and if you speak up, please provide reasons that the project does not work, such as traffic congestion, noise, visual impact, etc. 

Can we be sued?

Short answer, yes. Anyone can be sued. 

That being said, if something is well underway, we must be cautious not to invite a lawsuit. 

If you have a shovel ready project, and all the permits are in place, you are less likely to see a lawsuit. This is the “turned dirt” rule. The classic example of this is a case from Orange Town, NY, where a developer began working on a track of condos. The developer started, went bankrupt, got money again, and restarted while he had valuable permits. The Supervisor said, “not so fast,” and the Town stopped the project. The Developer sued and won $5 million dollars.

Any Constitutional claim however, (due process, takings, and equal protection), is hard to prove. For example, to prove a “takings” claim, you have to show that you have no way to develop the property under any allowable zoning to recover your investment. For example, a few years back, some farmers claimed that they lost the benefit of their land when fracking was stopped in New York. But most of those cases went nowhere because the land still had economic value. The farmers could still farm their land, which is what they bought it for—their reasonable economic investment. They had no right to the highest and best use of the property. 

Some of you remember the old River Oaks lawsuit, where the town lost a multi-million dollar case for trying to stop the owners of the property from removing clay. I won’t go into the nitty gritty of that lawsuit (it’s well before my days on Grand Island), but my understanding is that it was not a takings case. Instead, it was a Commerce Clause case. The town tried to ban a particular type of commerce. They told them they could not distribute clay mined on the Island; thus, they tried to regulate that type of commerce beyond the scope of their jurisdiction. That type of regulation is the sole power of Congress. The constitution reserves all powers of interstate commerce under the Constitution.  

On my discussions with developers

Often, I have developers come into my office. Most are good natured sorts. Some are a tad more manipulative and cunning—even threatening. But again, most are just business people trying to do good business. 

I don’t want to fight. There is nothing worse than the empty feeling you have when you have hurt someone, either intentionally or unintentionally. But if have to choose between fight and flight, I will fight, especially when it’s something I believe in. I will always be mindful of protecting everyone’s rights under the law. But one of the things I believe in most is keeping Grand Island green . . . and beautiful . . . forever!

With highest regards,