The Town of Hamburg has had much recent success as a hub of economic development and commerce. Unfortunately, not all commerce is created equal. Commerce which reduces the quality of neighborhoods by emitting harmful chemicals and odors can have a massive detriment on the community. We do not stand against business development, but rather against undue impacts on other landowner’s and resident’s rights.
The issue at hand is that the land owned by Cheektowaga Concrete, LLC is zoned M-3 at 5690 Camp Rd and adjacent sites, which is the heaviest industrial zoning district in the Town of Hamburg. This land is intended to be leased to AL Asphalt company, owned by the owner of Cheektowaga Concrete LLC’s daughter, to produce hot mix asphalt.
One might argue that this code is archaic and outdated, and that the intended use of the surrounding land has changed significantly. This said, the current owner and their attorney believe that since the M-3 zoning exists, this should give them a free pathway to produce asphalt less than a mile from a village and less than a quarter of a mile from the downwind Hamburg Middle and High schools.
Upon investigating the Town of Hamburg code, we discovered some serious issues existing with their proposed use:
Limitations on uses in the M-3 District:
(1) No use of land, building or structure shall be permitted, the operation of which normally results in any:
(a) Fire or explosive hazard beyond the boundaries of the district in which such use is located. Any approved use shall conform with the New York State Uniform Fire Prevention and Building Code and the Town of Hamburg Fire Prevention Code, Chapter 113.
(b) Dissemination of atmospheric pollutant, noise or odor into any R, C, M-1 or M-2 District.
(c) No vibration shall be registered beyond the property line.
(2) No unneutralized refuse material shall be discharged into sewers, streams or ditches.
(3) All side and rear lot lines abutting any lot in any R District or a C-1 District shall be fenced or screened in the same manner as prescribed in the M-2 District. All open storage yards not otherwise limited in this section, including junkyards, shall be fenced to a height of not less than eight feet nor more than 10 feet, as determined by the Planning Board, to screen such storage from adjacent view.
(4) Unless otherwise provided, required side yards shall be used only for landscaping and/or the off-street parking of employees’, customers’ and visitors’ cars.
As shown in section (b) and (c) listed above, the Town of Hamburg code explicitly restricts all facilities that may emit any atmospheic pollutant, noise or odor into any R, C, M-1 or M-2 district.
Upon referencing the zoning map, found at this link in PDF format, the adjoining properties are either zoned M-2, C or are part of the Village of Hamburg, primarily zoned residential.
Due to this, odors, noise, vibrations, and most likely pollutants would very likely be entering or impeding upon regions zoned M-2, C or R. Further, the Village of Hamburg and their residents would have a strong case to bring suit against the Town of Hamburg in the case where property values, quality of life, tax receipts and health concerns are impacted by this type of facility in such close proximity to residences.
It would have to be proven, beyond a reasonable doubt, that none of these factors would have an impact on surrounding areas that in some cases are hundreds of feet from the intended location of the production facility and emissions stack. This seems highly unlikely that these areas would not be impacted, but at a minimum, an environmental study by a qualified third party must be done to asses the impact.
Even documentation from NAPA – the National Asphalt Pavement Association – seems to agree. While they claim that health hazards do not exist, which can be argued separately, they state the following:
Sometimes odors from the heated materials may also emanate from an asphalt plant. Although they may be noticeable, these odors pose no danger to either plant personnel or to the communities in which a plant operates.
In this case, since the Town of Hamburg code doesn’t explicitly state that a danger must exist, but rather just the presence of odor, this functionally resolves the case altogether as asphalt’s own association admits that there will be a noticeable odor emanating from the plant.
If that wasn’t enough, we’ve compiled articles from other communities which share residential space with asphalt plants, and the feedback is widely negative from nearby residents, often those residing even further than the Hamburg residents would from the proposed plant:
- Raising a stink: Asphalt plant odor draws ire
- It smells, but Maine asphalt plant meets standards
- Controversy in the air as Mesa homeowners decry neighboring asphalt plant’s odors
Unfortunately, for residents of those communities, regulations do not exist that explicitly separate odor from danger. Due to this, if an asphalt plant hits the minimum viable filtration requirements for harmful pollutants, but otherwise smells horrible and damages the neighborhood, they cannot be shuttered.
In the case of Hamburg, NY, the code exists to prevent this type of situation from happening and we intend to make sure that the code is enforced strongly and properly.