Demolition Moratoriums and the Local Landmarking Process

By Christiana Limniatis and Tabitha O’Connell

On March 7, 2023, the small Art Deco style administration building at the Clinton-Bailey Farmers Market in Buffalo was illegally demolished. This post will break down the context of this demolition and why it was illegal.

In December 2021, a demolition application for the building, which was located on the market’s property at 1443 Clinton Street, came before the Buffalo Preservation Board for advisory review. This is the process for all non-emergency demolition applications in the city; before a permit is issued, the Preservation Board reviews the application and makes a recommendation that is passed on to the Department of Permit and Inspection Services (DPIS). For buildings that are not designated as local landmarks, this recommendation is non-binding.

In the case of the building at 1443 Clinton, the Preservation Board hoped to work with the owner to find an alternative to demolition, and the application was tabled while the Board discussed the issues with the owner, conducted a site visit, and facilitated a meeting between the owner and the district’s councilmember. The demolition application has remained tabled by the Preservation Board ever since, with no recommendation ever made.

As part of our advocacy on this issue, we submitted a letter to the Preservation Board asking that they recommend denial of the demolition permit and encouraging the landmarking of the entire Clinton-Bailey Famers Market. To assist with the preparation of a landmark application, we included research on the property and a recommendation of which Criteria for Designation we felt the site was eligible under. The Preservation Board’s Landmarks Subcommittee subsequently prepared a local landmark application for the market property, which was submitted in July 2022. After the necessary public hearing before the Preservation Board in September, the Board recommended that the application be approved and sent it to the Common Council for the next part of the process.

Per the city’s Preservation Ordinance, upon the Common Council’s receipt of a landmark application from the Preservation Board, a moratorium on demolition permits for the subject property goes into effect until a final decision on the application is reached. This aspect of the law is a relatively recent amendment that was unanimously approved by the Common Council in 2021. Sponsored by Councilmembers Nowakowski and Rivera, it came about due to the demolition of the house at 184 West Utica Street while a landmark application for that building was pending.

As amended, the law states:

The Preservation Board shall, within 90 days of receipt of a completed application form, take its final action thereon, which shall be in the form of a recommendation to the Common Council. …

Upon the Common Council’s receipt of said recommendation, the Department of Permits and Inspection Services shall put in place a temporary moratorium, prohibiting the issuance of any building permits or demolition permits, relating to any property or resource that is subject to the proposed designation, to last until there is a final decision on the designation.

A property owner affected by this temporary moratorium may petition the Common Council for the lifting of any temporary moratorium to allow certain work to proceed pending the completed designation process, if such work would not affect the historic features under consideration.(§337-8 of Article III of Chapter 337, Preservation Standards)

Thus, a moratorium on permits should have gone into effect for 1443 Clinton Street in September 2022, when the Common Council received the recommendation from the Preservation Board. Since then, a final decision has not been made on the application. The Council’s Committee on Legislation held a public hearing for the application in October 2022, but rather than sending it on to the full Common Council for a vote afterward, they tabled it, and it has remained tabled ever since.

Issuance of a demolition permit for this building thus constitutes a clear violation of city law. While the City has not yet provided any formal explanation, based on  information available our understanding is that the permit’s issuance comes down to three critical failures on the City’s part:

1. Department of Permit and Inspection Services

Cathy Amdur, the Commissioner of the Department of Permit and Inspection Services, has stated that it is the job of the acting Secretary of the Preservation Board (who, as specified in §337-5 of the city’s Preservation Ordinance, is the staff person assigned to that position by the city) to enter a comment in the City’s permitting system to indicate when a property has a pending landmark application. In this case, according to Ms. Amdur, that information was not entered in the system, and thus DPIS was not aware of the moratorium when they received a demolition permit application from the building’s owner. However, as quoted above, the law states that it is the duty of DPIS to put the moratorium in place. Thus, the City’s internal policy is a violation of city law.

2. Preservation Board

The Preservation Ordinance lays out the powers and duties of the Preservation Board, which include “To advise and assist other City departments on matters pertaining to historic preservation” and “To undertake any other action or activity necessary or appropriate for the execution of its powers and duties or to further the purpose of this code” (§337-5 of Article II). In this case, the Board did not communicate sufficiently with DPIS regarding this building, resulting in a failure of execution of the Preservation Ordinance.

3. Common Council

Finally, indefinite tabling of a landmark application by the Legislation Committee is itself a violation of city law. According to the Preservation Ordinance, the Committee must take action—that is, approve, disapprove, or modify the proposed landmark designation—within 30 days of the public hearing and transmit their decision to the Common Council, who will then conduct a final vote on whether to approve or disapprove the designation (§337-11 of Article III). The requirement that the Council make a timely decision is confirmed by case law; in The Campaign For Buffalo History Architecture & Culture, Inc. v. The City of Buffalo Common Council (2019), the New York State Supreme Court found that it was “arbitrary and capricious” for the Council “to fail to make a decision” on a landmark application.

As a side note, this particular issue is not unique to 1443 Clinton Street; Voelker’s Bowling Center, located at 680 Amherst Street, is currently in a similar situation, with a landmark application for the building having been tabled by the Legislation Committee for 18 months, since September 2021. The city’s housing court recently issued a demolition order for the property, which is a directive to the owner to obtain a demolition permit; however, even with this order from the court, DPIS cannot legally issue a demolition permit while the landmark application remains pending.

As we plan our next advocacy steps, in light of the numerous issues laid out here, we call on Mayor Byron Brown and his administration to review and update the City’s internal policies and procedures so that they are consistent with the letter of the law and allow for the law’s appropriate execution. We also call on the Common Council to process received landmark applications in a timely matter. PBN will continue to advocate to the City to protect our historic fabric from further illegal demolitions