[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.
[1]
Editor's Note: Former § 216-31, Definitions, was
repealed 9-17-1996, effective 9-18-1996.
[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.
