Rally on April 9 Prior to Town of Tonawanda Hearing on Zoning Amendment

CLEAN AIR TO HOST RALLY ON TUESDAY APRIL 9 AT 5:30PM AT 2919 DELAWARE AVENUE

On Tuesday April 9 at 7pm at the Municipal Building at 2919 Delaware Avenue the Town of Tonawanda will be holding a public comment hearing on the draft comprehensive zoning amendment. We expect a vote on approving the current draft will follow during the scheduled Town Board meeting.

Clean Air urges all members, supporters, Town residents, and residents of adjacent communities to join us at 5:30pm in the village green in front of the Municipal Building for a brief rally to bring attention to the hearing and to voice concerns that we have with the existing draft. The rally will begin promptly at 6pm, with a brief demonstration at 5:30, and Clean Air staff will be there at 5pm. 

Directly after the rally we will go upstairs to the municipal meeting hall for the hearing and the meeting that will follow – we encourage our supporters to read through our following talking points and include these and any concerns you personally have in your remarks. You can also learn more by visiting the Town’s webpage on the comprehensive zoning amendment, or read the letters we and Smart Growth America submitted in August 2023.

We recommend that our supporters ask that the vote on the draft be tabled for a later meeting to allow for a second public comment hearing with broader outreach, or, if passed in this meeting, that the Town Board take swift action to amend the code and address the issues that we have flagged through separate legislation. Zoning codes are living documents that must be continually tweaked and updated for equity and justice, and the Town should continue to make ongoing reforms.

OUR REMAINING CONCERNS WITH THE PROPOSED DRAFT

1. Clean Air remains concerned about the Town’s approach to public engagement and comment solicitation. The first several pages of our initial August 2023 letter flagged this issue, and we’re distressed to see that this hearing is being held without an improved outreach effort.
   • The revised draft is dated February 1, 2024 but was not available to the public until February 11, and was only posted to the above-linked sub-webpage of the Planning and Development Department.

   • We did not see anything posted to the legal notices page about an official public comment period until the hearing notice posted on March 26, and this notice did not include clear instructions on how to submit comments beyond the hearing.

   • As of April 2, 2024, outside of a note on the calendar, there is nothing posted on the Town’s homepage announcing the public hearing.

   • As of April 2, 2024, there has been no notice of the hearing posted to the Town’s social media accounts.

2. Clean Air and Smart Growth America, subject-matter experts on zoning codes with a lens for progressive climate-friendly development strategies, submitted comments during the unofficial public comment period in summer 2023. We feel that these comments were not integrated in any meaningful way into the final draft.

   Our lengthier analysis is below, including specific smaller tweaks that the Town could make to bring it closer to alignment with the points we raised in our letters, but the number one point we would love our supporters to emphasize is that the Town should pass an Environmental Justice zoning ordinance for census tracts 83 and 84 (identified as areas disproportionately affected by environmental injustices by state and federal authorities), which would also align the code with the new statewide Cumulative Impacts law.

3. In our analysis, we further feel that the draft zoning amendment does not fully align with the goals set out in the Town’s 2014 Comprehensive Plan Update nor the goals of the Tonawanda Tomorrow plan that Clean Air worked extensively with the Town to develop. Here are two examples –
   • “The Town shares boundaries with the Village of Kenmore, the Town of Amherst, the City of Buffalo, the City of Tonawanda, the City of North Tonawanda and Town of Grand Island (at Niagara River). In areas adjacent to the municipalities, especially the Village of Kenmore where the boundary appears “seamless”– village land use patterns should be continued. The zoning that extends along these municipal boundaries should be coordinated with the adjoining communities to correlate zoning classifications, bulk standards, design requirements and other regulations guiding development.” (Page 151, 2014 Town of Tonawanda Comprehensive Plan Update)
     • At present, the Town’s former landfill at 15 Pirson Parkway remains zoned Mixed Use Industrial. This is despite a residential neighborhood in the City of Tonawanda which backs up to this site, and residents there have struggled with nuisance issues related to the regrading of this site. We urge the Town to rezone this parcel as Community Facility or Open Space to prevent industrial development in these resident’s backyards.

   • “Reevaluate the Town’s zoning structure to consider greater opportunities for mixed uses and non-residential uses in residential districts. Consider a hybrid form-based code.” (Page 153, 2014 Comprehensive Plan Update)
     “Promote housing models that are currently lacking in the Town, including mixed-use developments near walkable centers, single family homes with 4+ bedrooms, and live-work spaces.” (Page 47, Tonawanda Tomorrow Plan)
     • At present, the Town’s code maintains strict Euclidian separation of residential and non-residential uses, even including separation between single-family and multi-family homes which use the same design forms and are indistinguishable from the street and share the same community characteristics. While some separation of uses are of course necessary, we urge the Town to revisit unnecessary separations that remain in the code to increase accessibility, inclusiveness, and walkability, and, longer term, adopt a form-based code to match with modern best planning practices.

4. Additionally, in the months since we submitted our initial letter, we have noted that while Tonawanda officials and residents have expressed their strong opposition to the mining of cryptocurrency as an industrial or commercial use, there are currently no laws, regulations or ordinances banning this practice.
   • From conversations we have had, we have gleaned that officials are also largely unaware that the phrase “Data Center” is usually used by developers to hide plans for cryptocurrency mining operations. Common issues with cryptocurrency mining include large energy uses which risk grid brownouts, and the requirement of large industrial fans to cool computer servers, which can be as loud as jet engines when at peak operations.

   • Town officials should strongly consider either incorporating a ban on cryptocurrency mining into the zoning amendment or plan to address this regulatory gap in the near future, as plans for several former industrial sites located in the River Road corridor that are presently in the Brownfield Cleanup Program include Data Centers, and these developers have a proven record of partnering with cryptocurrency mining firms.

   • Alternatively, in lieu of a total ban, the Town could consider adopting a zoning ordinance similar to Niagara Falls’ High Energy Usage Overlay District, which cuts to the core of the nuisance issues at hand – loud, persistent noise, and large energy uses, either with grid power which can increase instability, or with off grid power, which, depending on the power source, can substantially reduce air quality and increase greenhouse gas emissions.

   • These nuisance issues are not unique to cryptocurrency mining, which is why Niagara Falls’ tact may be more sensible than a ban specifically on cryptocurrency mining. For example, data centers used for ChatGPT and other Artificial Intelligence generative modeling also consume large amounts of energy and likewise require large fans, as do emerging Direct Air Capture operations, and new industrial cannabis growing operations require large amounts of energy for grow lights. Our advocacy for an Environmental Justice overlay could also dovetail into this ordnance, as brownouts and noise complaints from industrial sources are common among residents of EJ areas.

This has been a long process, and we understand that the Town would like to move forward to support development.

We also understand that these issues are not unique to the Town of Tonawanda – municipalities tend to share the same zoning language and are generally slow to make updates as issues arise. For example, the City of Tonawanda requires even larger minimum residential lot frontages (60 feet versus 45 feet), and most area municipalities, including the Village of Kenmore, also have the same outdated Adult Entertainment Cabaret definition which restricts drag performances to Industrial zones.

Even the City of Buffalo, which received international recognition for the relatively progressive “Green Code” zoning updates made in 2016, continues to lack Inclusionary Zoning housing affordability protections, and our campaigns in Buffalo are directly related to poor parcel zoning decisions as well as a lack of enforcement of the existing laws on industrial business operations.

Clean Air will continue to exert pressure on these policy areas, in particular supporting the codification of Environmental Justice into zoning codes throughout our membership areas and the broader region. If you are interested in joining this work, please reach out to Bridge.

ANALYSIS OF THE REVISIONS TO THE ZONING AMENDMENT MADE IN RESPONSE TO CLEAN AIR AND SMART GROWTH AMERCIA’S COMMENTS

Clean Air’s comments, submitted August 31, 2023

Public engagement process – no meaningful improvement.

• Revised drafts are dated 2/1/24
• Updated draft was posted to Zoning Amendment webpage week of 2/11/24. 
• Nothing posted on legal notices about the new draft as of 3/25/24
• Nothing posted on home page about the new draft as of 3/25/24
• Nothing posted to town’s Facebook page as of 3/25/24

“We further encourage adding a 10-30% affordable housing requirement to the Planned Unit Development Districts and the Transit-Oriented Development Districts for residential developments of 5 or more units, with the median income for determining affordability pegged to current census tracts, not the Area Median Income of the region.”

• Remains unchanged. No set percentage requirements for affordable housing development within these or any zones.
  • TOD definition does not include affordable housing as a goal, but does include the goal of “moderate-income housing” (§215-23.6 – F.) “Moderate-income” is not defined nor is this phrase used anywhere else we could find either in . The Town should, at a minimum, swap out “moderate-income” for “affordable” to align with not only our suggested requirements but also the standard language used elsewhere in code.

  • PUD definition does not include affordable housing as a goal, but does include the goal of “Facilitate the provision of housing and improved residential environments” (§215-23.7 A4) and has a section on Public Benefit (§215-23.7 F) which does not include affordable housing, or any mention of housing whatsoever. The Town should, at a minimum, add “affordable” to the housing goal A4 and include affordable housing within the potential Public Benefit justifications.

  • We also strongly recommend including a definition of “affordable housing” within section §215-15.7, and additionally suggest using the Average Median Income for the Town’s census districts rather than the AMI for the region as threshold measures.

“We object to the continued use of restrictive Euclidean-style Single Family zoning (R-1) for the vast majority of the residential areas of the Town.”

“We are further troubled to see that the R-1 zoning has a minimum lot width of 45’, minimum front setback of 25’, and minimum lot area of 4,500 square feet.”

“We are also troubled to see that R-1 requires two spaces for cars , and does not permit Accessory Dwelling Units/In-Law Suites even with a special use permit…. We also noted that Building-Mounted Wind Energy Conversion Systems are not permitted anywhere except Industrial and Mixed Use Waterfront areas.”

“We instead suggest a minimum lot width of 25’ for new build structures, a setback defined by the front yard line of the block, and a minimum structure size set by percentage of lot covered rather than a specific required size. In the City of Buffalo, minimum lot widths for residential zones can be as narrow as 15’, but the N-2R residential areas that are most closely similar to Tonawandas R-1 district have minimums of 25’. The N-2R setback minimum in the city of Buffalo is not defined strictly, but rather is +/- 5’ from the established front yard line on the block. Finally, while the minimum lot size is 1500 sqft, rather than any specific minimum defined building requirement, instead structures must cover LESS than 70% of the lot.”

• Part 2 District & Use Regulations §215-20.5 Table 20-b remains unchanged, with 45’ minimum lot sizes for R-1, R-2 & MR zones and 25’ setbacks for R-1 & R-2 zones (20’ for MR zones.)

• Part 3 Development Standards §215-30.4 Table B remains unchanged, with requirements of 2 spaces per unit of single family housing, and 1.5 spaces per unit of multi-family housing.

• There is no mention of Alternative Parking Arrangements §215-30.8 in section §215-30.3 Residential Parking Requirements. Alternative Parking Arrangements for other zoning uses are at the discretion of the reviewing body and may require a Parking Demand Analysis, which disincentivizes Alternative Parking Arrangements. 

“We suggest eliminating the requirement for minimum parking for new developments in residential areas entirely, and replacing instead with a Transportation Demand Management plan for larger residential developments.” 

• Section 3 Off-street Parking Requirements §215-30.4 Table B Parking Minimums remains unchanged, with 2 spaces per residential unit or 1.5 per multifamily unit. There is a standard process for developments with fewer parking spaces that applicants can follow, but this creates an additional barrier that many developers will not bother with.

“We suggest allowing Accessory Dwelling Units and In-law Suites by right in residential areas, including in R-1 areas, and allowing installation of Building-Mounted Wind Energy Conversion Systems with a Special Use Permit.”

• Section 2 Residential Districts Use Lists  §215-20.4 – Accessory Dwelling Units still require a Special Permit process in R-2 & MR zones and are not by-right uses, but are now permitted in R-1 zones with a Special Permit – positive adjustment possibly based in part on our feedback.

• Section 2 Residential Districts Use Lists  §215-20.4 – no mention of Building-Mounted Wind Energy Conversion Systems as a permitted use, even with a Special Use Permit. Unchanged.
  • As written, permitted only in §215-21.4 MU-W and §215-22.4 MU-I GI zones. 

“We strongly support the development and addition of an Environmental Justice Overlay Zone for residential parcels within the General Industrial Zone and adjacent areas, particularly those areas defined by the State of New York under the Disadvantaged Communities Criteria… A placeholder in the draft codifying a commitment to develop this Overlay within the next five years would suffice for our concerns at this time, and we would happily work with the Town to facilitate neighborhood meetings and help develop this overlay.”

• Unchanged. No placeholder added.

“We strongly support striking the terms “male and female impersonators” from [the definition of Adult Entertainment Cabaret under Adult Uses]”

• Unchanged. Definition remains as previously written – 
  • “ADULT ENTERTAINMENT CABARET — A public or private establishment which is licensed to serve food and/or alcoholic beverages, which features topless dancers, strippers, male or female impersonators or similar entertainers.”

• Adult uses also remain restricted to MU-I and GI zones.

“We suggest in the future considering adding protective zoning measures against “box store” type suburban development”

• Not analyzed. This was more aspirational and a goal for future analysis/advocacy. The Institute for Local Self Reliance has a number of examples of how to add protective measures, like including a maximum square footage for retail businesses.

“We encourage publishing a simple 1-2 page guide breaking down the Draft Zoning Amendments prior to scheduling the Public Hearing.”

• Unchanged. There is a summary paragraph on the Zoning webpage, but no simple 1-2 page guide.

Smart Growth America’s Comments, Submitted August 31, 2023

“Review the Subdivision Regulations with a climate and environmental justice lens for consistency with the Comprehensive Plan and Zoning Ordinance”

• To the best of our knowledge, this has not occurred.

“The Town should convene a climate change-oriented steering committee for the draft zoning ordinance to oversee the inclusion of climate resilient land use policies. This steering committee should review the draft zoning ordinance’s climate-relevant policies and provide recommendations for specific language that should be incorporated into the zoning code update. The steering committee should pull from the Town’s planning department staff, but should have a clear term limit (when the updated zoning ordinance is adopted).” 

• To the best of our knowledge, this has not occurred.

“Tonawanda might also consider specifically promoting knowledge of flood resilience as a desired qualification for a seat on the Planning Board.”

• To the best of our knowledge, there is no one with specific flood resilience and stormwater management knowledge on the planning board.

“All residential zoning designations in the draft zoning ordinance should explicitly allow a variety of housing types, with up to 10 dwelling units per acre (or even higher maximums). This density could be tiered, with lower DUA along the coastal areas and increasing density as development moves away from the waterfront and towards the more established community core.”

• Unchanged, feedback not incorporated

“Denser infill development has the potential to advance Tonawanda residents’ quality of life by supporting retail and mixed uses, introducing a wider variety of housing typologies for households of different incomes, and increasing accessibility to transit and other amenities. It can also reduce greenhouse gas emissions, vehicle miles traveled, sprawling surfaces and materials that retain heat and create pollution, and exposure to inland flooding. Reducing density controls such as setbacks, rear yard requirements, and floor area ratios in residential zones—while also including landscaping requirements as conditions of use and allowing by-right permits for the redevelopment and reuse of existing building stock—will provide stronger regulatory support for the Comprehensive Plan’s goals and aspirations to make the Town more climate resilient.”

• Unchanged, feedback not incorporated

“In order to advance the Town’s goals for development that is adapted to extreme heat and flooding, the draft zoning ordinance should include language to allow the creation and/or preservation of green space geographically distributed throughout the town. Many of the Town’s identified open spaces and community facilities are located along the riverfront and/or the edge of town. Locating natural spaces throughout the community, especially in residential zoned areas, will decrease the Town’s ambient temperatures and help manage stormwater and water quality. Incorporating green spaces on the riverfront can be a best practice for flood preparedness, and it is also critical to strive for distributed park access within close proximity to all residents.”

• While there weren’t any changes, Section 3 §215-31.13 specifically addresses the need for protected and expanded green space throughout the town 

“Incorporating the following zoning and land use regulation updates could also help the Town deal with higher temperatures and a more severe heat island effect:”

• Residential zoning designations should include language to require the installation of shade amenities, including a street tree canopy, porches, awnings, porticos, etc. These amenities should be allowed with little regulatory burden; either by-right or via an “over the counter” permit. Additionally, approaches such as a Green Area Ratio can provide discretion to property owners about what combination of green and stormwater interventions they choose to incorporate on site.”
  • Unchanged, feedback not incorporated. Only mention of shade is in Section 3 Article 31, which features mention of shade trees, largely in parking areas.

• “Landlords should be incentivized to install green or cool roofs via the inclusion of these amenities in the zoning text as a by-right use in all residential zones along with opportunities to support reflective surfaces. Currently, the omission of these elements serves as an additional administrative burden for those who might be interested in including these amenities. Incorporation of green design elements could be paired with an incentive such as a density bonus.”
  • Green roofs and cool roofs are mentioned in Section 3 §215-32.6. Mild incentive to incorporate green roofs into new construction by allowing for greater build-to-lot ratio.
    • “Where green roofs are proposed, the reviewing body may deduct a portion of the green roof building from the lot coverage calculations up to 75% of the green roof footprint.”

• “Native vegetation should be incorporated into public facilities and street/sidewalk infrastructure; this should be allowed or required by-right in all residential zones.”
  • Section 3 §215-31.4 B2 – “Native species shall be utilized to the greatest extent possible.”

“Recommendations aimed at helping the Town deal with increased precipitation and more severe flooding events include:”

• “Locate new public facilities inland to reduce their susceptibility to flooding.”
  • Unchanged, feedback not incorporated – see Section 2 §215-23.5 FLOOD HAZARD OVERLAY (FHO) DISTRICT. The language of this section does not directly mention barring or restricting new construction of public facilities in this overlay area. This section largely directs readers to Chapter 92 of the Town Code (https://ecode360.com/10932590#10932590) and the FEMA Flood Zone Map for the area, which designates the boundaries of the Overlay.

  • The Town does feature a flood plain map on their website in their GIS tools, although these are difficult to find and use for the average resident. You must first navigate to the Planning & Development Department webpage and then scroll down to the link to “Interactive Maps”. You must then know to select “Tonawanda Map Gallery” and then select “2021 Adopted Floodplain Viewer”, and then be experienced enough with GIS maps to know to zoom in to activate layers. This map does reveal that developed areas near Brighton Park are at high risk of flooding from Ellicott Creek, and discussions of managed retreat may be worth consideration to alleviate future disasters.

• “Issue permits for the installation of greywater systems for water reuse by-right or over the counter.”
  
  • Unchanged, feedback not incorporated. Greywater is not mentioned anywhere in documents.

• “Use permeable materials for streets, parking lots, and sidewalks in flood-prone areas to reduce runoff, promote groundwater recharge, and mitigate the impacts of droughts.”
  • Unchanged, feedback not incorporated. Section 3 §215-32.11 STORMWATER MANAGEMENT & GREEN INFRASTRUCTURE encourages but does not require green stormwater infrastructure. Upwards of 85% of a lot can be of impervious surfaces depending on the zoning type.

• “Reference the ASCE 24 guidelines on Flood Resistant Design and Construction for areas prone to flooding.”
  • Unchanged, feedback not incorporated

• “Incentivize new development, and higher density development, in areas which are less flood-prone through by-right zoning or by introducing incentives such as density bonuses.”
  • Unchanged, feedback not incorporated