When it comes to approaching the Planning Commission about waiver requests, we hear a lot of conflicting messages about the role and power of the residents:
- The PC likes to hear from “just plain folks,” the kind who show up in their paint-spattered work clothes, heavy work boots, medical uniforms and office attire. Let’s call them the “JPF” for short.
- The more of these JPF, the more powerful the message.
- The PC cannot make decisions based on the popularity, or lack thereof, of a waiver request. So actually, numbers of JPF at the meetings can’t count.
- The JPF actually don’t understand all the legalities, so while their interest is much appreciated, it doesn’t stand a chance against a legal technicality.
- How the PC votes on a waiver request is very much affected by what the JPF say.
- If the JPF haven’t come in with new information for the PC to use in figuring out how to vote, or if their information is ill-informed, then the hours they spend at these meetings is all for naught.
Okay, so at tonight’s Planning Commission meeting where waiver requests for an LED sign are to be considered, we’re going to see some JPF. Some will be quavering at the microphone because they are unaccustomed to public speaking, some will be thrilled to have a few minutes (2 or 7, depending on… nobody knows) to get their point across. Some will be there with their common sense, some with memories and current understanding of a city on the brink of decline (or not). And some will come with appropriate degrees tacked onto their names and legal or learned points to make.
None of these people should be despised – those with or without degrees. The diversity of viewpoints is to be appreciated. The JPF deserve the opportunity to bring up points that the PC might overlook. This is all well and good, for we know that Eastwood, in all its diversity of opinion, is united in its desire for good development that will knit the community back together after being falsely divided over a supposed “deal-breaker.”
But just to make sure that in the future we are not accused of not doing our homework, or not being prepared to inform the PC of the issues it must consider, I append here the final conclusions made by professional urban planner Maureen Harding in her letter to the Planning Commission. Her entire 9-page letter can be read here.
Please, Eastwood, do not despise Maureen for doing her homework, just as you do not despise your doctor, accountant, or attorney who has earned a degree in his or her field and continues to practice in various counties. Be grateful this woman takes the time she does to clarify things with plenty of back-up from acknowledged sources (which sources are included in the downloadable file).
Practical difficulties arise out of an applicant’s inability to utilize the property due to a physical or dimensional condition of a substandard lot that relates to the land or in this case, the locations of a proposed and prohibited additional projecting wall sign. Practical difficulties arise when the ordinance deprives the applicant of all viable economic use of the land. Since the applicant is able to make reasonable economic use of the property, practical difficulties do not arise for the applicant with regard to the “size, configuration and depth of the parcel” or the obstructed visibility of the proposed projecting wall sign (fails to satisfy practical difficulty in both economic and functional utilization standards).
Therefore, keep in mind none of the following conditions sustains a warrant for a waiver or exception:
1. Mere inconvenience does not rise to the level of meeting the requirements of the ordinance for both the economic and functional utilization of the lot.
2. Mere financial loss or insufficient return on investment is not a “practical difficulty.” The applicant must not be able to make reasonable use of the property in order for a practical difficulty standard to apply.
3. Size, configuration and depth of an oversized (setbacks do not apply to the sign waiver application) and an atypical parcel do not bear a logical relationship to the applicant’s need for area variances in general nor is it required by statute or the James Street Overlay District standard of review for the waiver of requirements.
4. The applicant is not automatically entitled to benefits of additional waivers or exceptions as-of-right if he has previously been granted waivers or exceptions on the subject parcel.
The Planning Commission must make a finding based on the fair preponderance of the record on each and every waiver requested. If the Planning Commission arbitrarily grants wholesale exceptions to this single applicant, the cumulative effect will substantially derogate the underlying intent and purpose (meaning to take away a part so as to impair) of the James Street Overlay District Standards and the Zoning Ordinance.
Thus far, not including the current three requested waivers, the applicant has applied for and has been granted (9) waivers. The Town of Lockport granted a series of (14) waivers and variances in total to the 185,000 square-foot Walmart supercenter proposal to date (case on appeal cited above). I would therefore, would like to add the following:
If the ordinance itself is unreasonable or because of changed conditions, it becomes unreasonable, the long recognized remedy is to change the zoning law ( Clark v. Board of Zoning Appeals of the Town of Hempstead, 301 N.Y. 86, 91, 92 N.E.2d 903, cert. denied 340 U.S. 933, 71 S.Ct. 498, 95 L.Ed. 673).
However, each request of the zoning authority to circumvent the zoning law by issuing ad hoc variances or waivers dilutes the effectiveness of the municipality’s land use authority. Legislative action is preferable to piecemeal exemptions that could ultimately defeat the purpose of the ordinance ( Otto v. Steinhilber, supra, at 77, 24 N.E.2d 851). Therefore, the Planning Commission is duty bound to protect the district from undesirable changes in a traditional main street character or that are inconsistent with the spirit of the law creating the James Street Overlay District.
Finally, it is with weary resignation that I must repeat that the spirit and intent of the JSOD is pedestrian primacy, not automobile primacy. The purpose of this sign is to capture the attention of auto-traveling public. This single developer knows not what he does and this particular development is the antithesis of mixed use, pedestrian oriented, traditional main street development that can easily be achieved through simple compliance with the JSOD standards and the enforcement of those standards through the Planning Commission without granting every request for a waiver of the requirements. Good urban design derives sustainable economic benefits for all (likely into the next century). However, it is well-recognized within the professional planning community the short-term benefits derived from single-purpose, single-use developments such as Fays, Eckerds, Rite Aid, etc. I hope that Walgreens will last longer.
I urge the Planning Commission on behalf of the Walkable Eastwood community to deny the application for waivers regarding the projecting wall sign at the Walgreens store at James Street and Grant Blvd.
Respectfully submitted by:
Maureen A. Harding, AICP