Thirty days.
That's how long preservationists have to save a building once the City of Buffalo receives a permit application to demolish it.
But it can't be done, they say.
Consider the recent case of a West Utica Street house built in 1907. The city's Department of Permit and Inspection Services observes a 30-day waiting period when someone applies for a demolition permit. So the countdown started when developer Nick Sinatra applied to tear down the house. After preservationists learned of the application, the Buffalo Preservation Board unanimously determined the West Utica Street house was worthy of landmark status.
But two days after the board's vote, the house was torn down. The demolition happened before the board's advisory recommendation even reached the Common Council for deliberation and a decision.
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James Comerford, commissioner of the city's Department of Permit and Inspection Services, allowed the demolition to avert a lawsuit that Sinatra threatened. By then, Sinatra had waited 37 days, a week longer than the 30 days adhered to by Comerford's department.
"Our interpretation is that the clock starts running when the demolition application is made," said Louis Petrucci, deputy commissioner of Permit and Inspection Services. "I'm supposed to wait 30 days and we're supposed to issue the permit."
If the conditions are met, the applicant has a right to the permit, Petrucci said.
But preservationists say that doesn't leave enough time for them to act.
"It is impossible to complete a landmark designation in 30 days," said Gwen Howard, who is chairwoman of the Buffalo Preservation Board.
Howard listed the factors that stretch the landmarking process beyond 30 days. The landmark application goes before the Preservation Board, which meets every two weeks, and then to the Common Council, whose weeks alternate between full Council sessions and committee meetings.
After the Preservation Board considers the issue, it must post a notice and then wait 15 days before holding a public hearing. The landmark recommendation is then sent to the Council, which assigns it to the Common Council's Legislative Committee, which also has to hold a public hearing. It's only then that the landmark application goes to the full Council for a vote.
The Preservation Board and Council are hard-pressed to render a decision in 60 days, let alone 30, Howard said.
In short, it isn't a good time to try and landmark a building once a demolition permit has been sought.
"I would prefer to have these discussions six months or a year beforehand," Petrucci said. "The worst time to try to stop these things is when someone has applied for a demolition permit. Why are we landmarking at the time of the wrecking ball? It is a terrible point at which to try and save a building."
The West Utica demolition proved that point.
"The irony here is while the demolition was happening on West Utica, on the front page of the Buffalo paper that day was a quote from director Guillermo Del Toro saying that the whole reason he selected Buffalo to film 'Nightmare Alley' was because of the quality of the architecture in our city," Howard said.
Protesting 30-day rule
The 30-day interpretation comes from an administrative order issued in February 2008 by Richard Tobe, at the time commissioner of the then-Department of Economic Development, Permit and Inspection Services. Tobe's order came after the Common Council required the Preservation Board to be given 30 days notice for all demolition requests.
The city's Green Code later required a demolition application to include a site plan.
The order says that every application should be considered within 30 days. But what "considered" means appears open to interpretation.
One section suggests leeway, when it states, "At the end of the 30-day review period, or after a recommendation by the Office of Strategic Planning/Preservation Board, the Commissioner of Economic Development, Permit and Inspection Services can issue (or deny) a permit for the demolition of a structure ..."
Another section also does the same: "If a nomination process has commenced, the report shall contain a timeline indicating when the landmark or district designation process commenced and when it is expected to be completed."
Richard Lippes, a former Preservation Board member who teaches preservation law at the University at Buffalo, believes there is no legal basis for the administrative order in the City Charter.
"Section 103 gives the Common Council full discretion to approve or deny," Lippes said. "There is nothing in this section that deals with building and demolition permits that required the Council to grant a demolition within 30 days. If the administrative order is not based on the City Charter and is contrary to the City Charter, then the City Charter preempts what any administrator says," he said.
Lippes said nothing in the ordinance limits the Preservation Board from going beyond 30 days, either.
"There is no question that it will be challenged in court in an appropriate case," Lippes said.
The city department's 30-day interpretation is incompatible with the preservation process, said Paul McDonnell, chairman of the Campaign for History, Architecture & Culture.
"The city has to allow enough time for the landmarking process to take place before a demolition permit is issued," said McDonnell, a former Preservation Board chairman. "If a building is determined to be eligible for local landmarking and an application is in process, that procedure must be allowed to play out before a demolition permit is issued."
The Campaign for Buffalo believes the timeline on granting a demolition permit should be longer than 30 days and shouldn't begin until the Preservation Board starts its consideration, not when the demolition application is filed.
Richard Berger, the organization's attorney, said the Planning Board's approval of the Elmwood Crossing project, which included the West Utica house, and the Preservation Board's landmark recommendation suggests the city's corporation counsel needs to rewrite the demolition language to reconcile future conflicting decisions.
"These things need to be resolved internally," Berger said.
McDonnell suggested the Office of Strategic Planning could change the language.
"There is nothing to stop the administration from rewriting an administrative order," he said.
The Council can also make changes. At a recent Community Development Committee, five Council members – David Rivera, Joseph Golombek, Mitchell Nowakowski, Rasheed Wyatt and Bryan Bolling – said they would be working on a legislative remedy for the demolition policy concerns.
Both the Campaign for Greater Buffalo and Preservation Buffalo Niagara have submitted proposed legislative changes to the Council to stop the clock while a local landmark application is being considered.
Defending 30-day rule
The Department of Permit and Inspection Services finds itself in a "very difficult position" because the person seeking the demolition has his or her own time and financial constraints, Petrucci said.
Applicants approach the department in good faith expecting a decision in 30 days, he said.
And the department has interpreted the administrative order to mean a final decision must be made by the Preservation Board and the Common Council during the 30-day time period, he said.
Petrucci acknowledged that once a demolition application has been received it is "basically too late" to save a building.
"What would be my basis for holding up the permit in what is not the first step but rather a final step in a long process?" Petrucci asked. "We don't know how the Common Council is going to vote. It's difficult to hold up something because of potential."
There are liability issues that also have to be weighed, Petrucci said. The city risks being sued for predevelopment costs or the full development cost of a project if it doesn't happen, he said.
Petrucci said he wants the preservation community to be more proactive by developing a list of buildings worthy of landmarking.
"We have repeatedly asked groups to identify buildings they would like to have saved so we are not trying to stop something when a demolition permit has been applied for," Petrucci said.
State model
James Finelli, historic preservation program analyst with the State Historic Preservation Office, said his office recommends to municipalities that preservation cases be given enough time for what he called "a fair hearing" to run its course.
"When a building is proposed for landmark status, it's frequently because there is an imminent threat to that building," Finelli said. "There has to be some kind of mechanism by which there can be a breathing period and which work is put on hold within a reasonable period of time, usually a two- month period with the option of it being extended beyond that.
"There has to be a public process with a public hearing, an opportunity for information to be gathered and opposing viewpoints to be heard," Finelli said. "If you don't do that you really aren't giving the local process time before a demolition permit is issued."
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