A Common Council to Decide Whether a Business Emitting Noxious or Offensive Odor Be Allowed to Operate

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 " '[t]he 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) 'whether 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).