[Adopted 7-3-1990, effective 7-3-1990; amended in its entirety 3-19-1991, effective 3-28-1991]
[Amended 9-17-1996, effective 9-18-1996]
A. 
The Common Council determines that the production by business, commercial or manufacturing establishments of offensive or noxious odors is a detriment to the comfort, convenience, safety, health and welfare of the citizens of the city. The Common Council determines that no reliable scientific objective standard or test for the existence of an offensive or noxious odor exists in present-day science or technology. The Common Council further determines that the detriment to the comfort, convenience, safety, health and welfare of the citizens of the City caused by offensive or noxious odors emanating from a business, commercial or manufacturing establishment may, under certain circumstances, be outweighed by and made secondary to the public benefits, in the form of jobs, increased property taxes, promotion of the highest and best use of real property and premises and natural resources and general economic stimulation, created by such a business, commercial or manufacturing establishment.
B. 
To balance the public comfort and the economic well-being of the City of Buffalo, the Common Council hereby establishes a system for the regulation of such establishments, the initiation of which lies with specified percentages of persons within a designated area. The final determination as to operation or continuing operation of each establishment lies with this Common Council.
C. 
A petition seeking control or elimination of offensive or noxious odors, containing the dated signatures of at least 20% of the owners of real property or premises within the City within the area of land contained in the impact area. The total number of owners or occupants within the impact area to establish the appropriate number of petition signatories may be determined by the Division of Planning within the Department of Community Development. The petition must state that the signatories consider the odor or odors emanating from a business, commercial or manufacturing establishment to be noxious or offensive. The length of time between the earliest dated and the last dated signature must be no more than 60 calendar days. A petition regarding a specified commercial user shall be accepted by the City Clerk only if it is filed for the first time or more than five years have elapsed between the presentation date of the petition and the action by the Council on a prior petition involving the same establishment.
[Amended 9-17-1996, effective 9-18-1996]
Whenever a petition, as specified in this article, is submitted to the City Clerk stating that a use undertaken in an impact area is creating or has created offensive or noxious odors, that use may continue without modification until the Common Council may authorize and direct the approval, the approval with conditions or the denial of the issuance of a regulated use permit pursuant to the provisions of this article.
A. 
Should the Common Council deny issuance of such a regulated use permit, the owners of such an establishment shall cause the operation of the establishment to terminate within the number of calendar days prescribed by the Common Council for such termination.
B. 
Should the Common Council determine that the use should be continued with a condition or conditions, a regulated use permit shall be issued upon that condition or conditions, subject to revocation by the Common Council should the condition or conditions not be fulfilled.
[Amended 9-17-1996, effective 9-18-1996]
In making a determination under § 216-32 of this article, the Common Council shall consider the following factors and make specified findings thereon:
A. 
Whether the use complained of in the petition predated the owners' affected uses (including residential uses) of their properties.
B. 
The economic impact on the commercial user and the City and its citizens of denying the use or permit or approving it with conditions, including jobs lost, reduction in the taxable assessment base and the like.
C. 
Whether the owners' loss of comfort can be compensated for without the termination of or modification of activities by the commercial user.
[Amended 9-17-1996, effective 9-18-1996]
When the Common Council shall determine that there appears to have been properly filed by the appropriate minimum number of owners within the impact area a petition or petitions as herein prescribed, the Common Council shall, by resolution, designate a hearing or hearings to be conducted by the Council in accordance with this section and upon notice as hereinafter provided.
A. 
Service of notice.
(1) 
A notice of the hearing to be held shall be published in a newspaper of general circulation at least 10 but not less than five days before the hearing or hearings, specifying the purpose of the hearing and its date, time and place. Such a notice shall also be required to be sent by the ordinary mail within the same time period to each person who signed the petitions herein at the stated address in the petition.
(2) 
Notice shall also be served in the ordinary mail to the commercial user named in the petition at the address of such establishment. The City Clerk shall take such other steps as the Clerk may deem necessary to assure that the establishment, through its representative, has notice of the hearing and of the existence of the petitions. Upon the request of such commercial user, through its representative or representatives, further information shall be provided regarding the petitions, any resolution of the Council authorizing such hearing or hearings and the provisions of this section. Notwithstanding the foregoing, if the commercial user, through its representative or representatives, shall request the Common Council, through its president or any member, to recess the hearing for the purpose of preparing a presentation to the Council, then such a recess shall be granted to another day not more than one month from the first hearing date.
B. 
Conduct of the hearing. During the course of the hearing or hearings, persons so notified shall be offered the opportunity to present testimony and evidence regarding the odor or odors emanating from the establishment and to cross-examine witnesses so testifying. Such testimony shall be recorded and a transcript made available free of charge to anyone who testifies. At the conclusion of the hearing or hearings, the findings, determinations and recommendations based on the evidence received shall be reported to the Common Council for consideration at its next regularly scheduled meeting. Such report shall include, among other items, a determination as to whether the odor or odors emanating from the establishment are offensive or noxious. If such a determination is made in the affirmative, the report shall recommend to the Council what action, if any, the Council should take pursuant to this section, including the issuance of a regulated use permit.
If any portion of this article is declared unconstitutional, such a declaration shall not affect the constitutionality of any remaining portion.
The approval by the Common Council of these amendments shall not affect in any way the validity of any petition or petitions submitted prior to the approval of these amendments.
[Amended 9-17-1996, effective 9-18-1996]
Whenever the Common Council has determined by resolution, pursuant to Section 32 of the Charter of the City of Buffalo, that the operation of an establishment shall terminate within a number of calendar days and the operation is not terminated within that number of days, or when the Common Council by resolution, pursuant to Section 32 of the Charter of the City of Buffalo, has determined that a regulated use permit issued in accordance with the provisions of this section should be revoked, the Corporation Counsel shall bring and maintain a civil proceeding in the name of the city, in the Supreme Court of the County of Erie, for a judgment permanently enjoining the operation of the establishment from which offensive or noxious odors emanate. The existence of an adequate remedy at law shall not prevent the granting of permanent injunctive relief pursuant to this article.
A. 
With respect to any action commenced or to be commenced pursuant to this chapter, the Corporation Counsel shall file a notice of pendency pursuant to the provisions of Article 65 of the Civil Practice Law and Rules.
B. 
The person in whose name the real property affected by the action is recorded in the office of the Erie County Clerk shall be presumed to be the owner thereof.
C. 
Whenever there is evidence that a person was the manager, operator or supervisor or in any other way in charge of the real property or premises at the time that offensive or noxious odors are emanated, such evidence shall be presumptive that he or she was an agent or employee of the owner or lessee of the establishment.
D. 
A judgment awarding a permanent injunction pursuant to this article may direct the Sheriff of Erie County to seize and remove from the establishment all material, equipment and instrumentalities used in the process which produces offensive or noxious odors and shall direct the sale by the Sheriff of such property in the manner provided for the sale of personal property under execution pursuant to the provisions of the Civil Practice Law and Rules. The net proceeds of any such sale, after a deduction of the lawful expenses involved, shall be paid into the general fund of the city.
E. 
A judgment awarding a permanent injunction pursuant to this article shall direct the closing of the establishment by the Sheriff to the extent necessary to abate the noxious or offensive odors and shall direct the Sheriff to post a copy of the judgment and a printed notice of such closing. A closing by the Sheriff pursuant to the provisions of this Subsection E shall not constitute an act of possession, ownership or control by the Sheriff of the closed real property or premises.