Bakery Salvage Corp. v. City of Buffalo

In Bakery Salvage Corp. v. City of Buffalo (175 AD2d 608 [4th Dept 1991]), the ordinance at issue recognized that there is no reliable objective test for determining a noxious odor, yet went on to define a noxious or offensive odor to be " 'the minimum concentration of odor required to give the first sensation of fetid or noisome odor to a person of average odor sensitivity' " (supra, at 609). The ordinance further provided that upon petition of at least 20% of the owners of real property within a one-quarter-mile radius of the point of the odor emission, the Common Council must conduct a hearing to decide whether to issue a regulated use permit to enable the establishment to continue its operation of business. The factors to be considered by the Common Council in making its determination were "1) whether the 'use complained of . . . predated the residential uses affected', 2) 'the economic impact on the establishment and the City and its citizens of denying the use or permit or approving it with conditions' and 3) '[w]hether the residents' loss of comfort can be compensated for with' the cessation of the use" (Bakery Salvage Corp. v. City of Buffalo, supra, at 609). As noted by the Court, the void-for-vagueness doctrine requires that a statute or ordinance be " 'informative on its face' " (supra, at 609). In holding the ordinance unconstitutional, the Court noted that it lacked a reasonable degree of definiteness in various of its provisions and left " 'virtually unfettered discretion in the hands of' the Common Council' " (supra, at 610).