Proposal for a Kinneys in Eastwood

• We will build what we want, where we want it, despite your overlay district guidelines.
• We will sell pornographic products within mere feet of a church, a school, and residences.
• We will take you (and your tax dollars) to court if you try to prevent us from violating your city codes.
• We will win in court.
• There is nothing you can do.

There was virtually no positive response to the presentation and many people were quite unhappy with what they saw. Their plan violates the overlay district zoning standards as well as city regulations that prevent the sale of adult materials within 1000 feet of a church, school, or residential area.

Also, the building would be literally within a few feet of the James Street Methodist Church, so close that the church would not be able to properly care for its building because they wouldn’t be able to get equipment in.

Several people pressed them on the issue of the sale of adult materials. They would not come up with a definitive answer. We’ve all seen presentations like this before, and we know how much of it is truth and how much of it is spin or simply avoiding answering… which means they don’t want to say what they know we’ll object to.

I asked them how we could be assured that we would not end up in the same situation as Auburn, which had to go to court over the sale of such materials. They, too, have regulations against it. The response: “Auburn lost.” and “We always win in court because it’s a small portion of the product that we sell.”

But that doesn’t reassure us at all, does it?  While their pornographic material may represent a small percentage of the videos in the store, it could mean a huge percentage of the sales. We see no other way this outmoded business model can be as successful as they claim.

We in Eastwood are just so accustomed to this kind of arrogance on the part of a developer who waltzes in with a plan that clearly demonstrates no knowledge of or interest in our community standards. It’s almost laughable – did they not do their homework and, as someone in the meeting pointed out, did they not realize that Eastwood has already stood up to another developer for five years in order to keep our community pedestrian-friendly and safe for our kids?

This message is for “Family” Video: if you insist on moving ahead with the abysmal plan you brought to our community Monday night, you are in for a rough ride. Your plan has done for Eastwood what nothing in the past has accomplished: united it. And that is the feedback from the community that you can bring back to headquarters.

• All three proposed designs violate the James Street Overlay District Zoning Standards in many ways.
• Video stores are unsustainable businesses unless they are selling adult videos – which “Family” Video does.

Not one of over a dozen comments in the email group of over 100 members was in favor of having this business in Eastwood. This community has spent years fighting bad design – and winning – so we’re not about to turn back the clock and allow suburban-style development in our urban community. That would cause all our property values to drop and would be a slap in the face of the James Street business owners who develop, successfully, following the guidelines.

Several commenters noted that selling videos is an outmoded business model and figured that it’s the sale of pornographic videos that keeps these businesses going. The last thing Syracuse needs is to end up in court over the issue of adult videos like Auburn is right now. The Post-Standard quotes Auburn City Manager as saying, “The fact that they advertise it as a family store and then have something that really is degrading for our whole community — I think some changes will have to be made…”

Note: the Adult Use Regulations for the City of Syracuse prohibit Adult Uses within 1000 feet of any residential dwellings, districts, churches or schools.

Common Councilor Kathleen Joy wrote to the email group the following (reprinted with permission):

I met with a representative of the “Family” video Monday. They fully intend on presenting at TNT on 3/22. I told him that I could not personally support this project as proposed because it does not  comply even with the spirit of our design guidelines &  I don’t like the idea of an X rated section (not disputed by him, by the way), they have no contract with the owner and have not vetted this project through any pre-development meeting.
He tells me that if the sense of the neighborhood is that it’s not wanted, then they won’t pursue it.

We were alerted to the problems with “Family” Video by PACNY‘s Mike Stanton, who sent the following, reprinted with permission (bolding mine):

Quote of the day: “Growth for the sake of growth is the ideology of the cancer cell.” Edward Abbey (The Journey Home, 1977).

Here we go again.

1) Family Video, a national video store chain with 550 stores nationwide, says it will build a $1 million store in Eastwood, but only if they can build a suburban style store with the parking lot on the corner and the entrance facing the parking lot rather than the sidewalk. Eastwood has an overlay district intended to promote walkability and pedestrian-friendly design. The video store would be built at the site of the former Steak & Sundae restaurant on James Street, which has been vacant and deteriorating for years. Mike Muraco, a Syracuse native who lives in Miami Beach, Fla., said “It’s a useless piece of property, unless they can bend a little.”

2) The city of Auburn took Family Video to court in 2008 because it rented X-rated adult videos. “The (store name) is a trap for families,” City Manager Mark Palesh said. “My family’s never going to go there again.” The city sought a court order to shut down the store’s sex video trade, saying it violates the city’s 1998 zoning ordinance banning sexually oriented businesses from operating within 500 feet of any area zoned residential. Family Video fought the city’s order in court.

3) A Buffalo News article says municipal officials in Western New York utter the name “Family Video” sarcastically these days. In the Town of Tonawanda, officials thought they nipped a potential problem in the bud when Family Video presented plans for a store in 2005. Not only was the Colvin Boulevard site not zoned for adult uses, town officials were assured that X-rated fare wouldn’t be offered there. And, for a while, it wasn’t. But recent complaints about adult videos in a back room — and Family Video’s alleged refusal to remove them — prompted the town to seek a court injunction barring their rental or sale. “The whole thing was, they misled us,” Councilman John A. Bargnesi Jr. said last week, when he announced the court case had been initiated.

The “Family” Video representative wrote the following and sent the site plans to the developer, who sent them to me for blogging so the community can weigh in on the issue. The developer, Stephen Skinner, has indicated that he is solidly pro-guidelines and neutral on “Family” Video.

Attached are three site plans for consideration. The 7/14/08 model would be our preferred site plan, with the building in the rear corner of the lot. We are willing to consider a compromise that would turn the building 90 degrees and have the right side of the building adjacent to the sidewalk on James St. This is a significant change from our preferred prototype. We did this in Rome, but only after the City of Rome offered a significant amount of financial contribution toward the facade improvement.

Let’s hope we can get the same support here.

"Family" Video's preferred plan (7-14-08)

Compromise 1

Compromise 2

What’s wrong with these pictures?

Your comments, please.

I’ll be writing tomorrow with more information on what kind of company “Family” Video is and how it actually makes money in a world where video is fast giving way to online and cable sources.

1. 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.
2. The more of these JPF, the more powerful the message.
3. 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.
4. 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.
5. How the PC votes on a waiver request is very much affected by what the JPF say.
6. 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).

Final Summary

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