With All Due Respect

[Note: This posting is the third in a three-part series regarding the development of cannabis cultivation facilities in Buffalo, NY, and will discuss how SEQRA provides the investigatory tools to assist Buffalo’s Commo Council in assessing the potential environmental impacts of a  marijuana grow facility. The first post, titled “South Buffalo Cannabis Facility is not in the Public Interest, ” provides my concerns regarding a marijuana cultivation-processing-shipping facility proposed in 2019 for the southern end of Buffalo’s Outer Harbor by Zephyr Partners (and, that is expected to be resurrected now that NYS has an adult-use marijuana law). The second, “Buffalo’s Green Code Prohibits Cannabis Cultivation Facilities,” explains how I reached the conclusion that the City of Buffalo’s zoning ordinance does NOT currently  permit a cannabis “grow” facility within its borders.]

Zephyr Partners applied in early 2019 to rezone about 15 acres of land at the Buffalo Lakeside Commerce Park [BLCP] in South Buffalo as part of its larger plan for a 47-acre, 1.375 million square-foot cannabis cultivation, processing, and shipping facility a short distance from the Lake Erie shoreline.  The developer proposed rezoning four parcels from D-C Flex Commercial to D-IL Light Industrial. 

I do not doubt the good intentions of the Common Council or its staff when they reviewed the proposed project two years ago and attempted to assess its potential environmental impacts.  But,  I assume that no one involved in the review is an environmental scientist, licensed engineer, or architect.  In effect, this complex and critical task – concerning what is for Buffalo a new and unregulated industry – with a proverbial mask over their eyes and arm tied behind their backs.  In essence, the scope of the environmental review was defined by Wendel, the engineering and architectural firm hired by Zephyr, and virtually all of the information the Common Council and its staff relied upon when assessing potential impacts came from the folks least likely to be objective and totally forthcoming, the project sponsor’s consultants. 

Without adequate tools, the Common Council members unanimously adopted, a “Determination of Non-Significance” or “Negative Declaration” under the State Environmental Quality Review Act [SEQRA].  That document, which was approved on May 14, 2019, declared that the proposed 1.375 million-square-foot cannabis cultivation facility “will not have an adverse impact on the quality of the environment,”  and ended environmental review by concluding that “a Draft Environmental Impact Statement [DEIS] will not be prepared.” 

Buffalo’s legislative body did not take the next step one would normally expect, that is, vote on whether to approve or disapprove Zephyr’s rezoning request.  For reasons not revealed in the City’s accessible records, the approval process came to a halt.  Importantly, the fact that the zoning map amendment was not approved provides the City of Buffalo with the chance for a do-over.  If and when Zephyr reinstates its rezoning request, the SEQRA regulations empower the “lead agency” – the Common Council – to rescind the March 2019 Negative Declaration based on “new information” or “changes in circumstances.”  [See 6 NYCRR 617.7(f).]  The Common Council can then fully fulfill its role as stewards of the air, water, land and living resources, and meet its obligation to protect the environment for the use and enjoyment of this and all future generations by issuing a Positive Declaration and requiring the project sponsor to prepare a Draft Environmental Impact Statement. 

Here are principles and factors I urge Buffalo’s legislative body to keep in mind if and when the recent enactment of New York’s  Cannabis/Marijuana Regulation & Taxation Act (MRTA) motivates Zephyr Partners to revive its dormant rezoning request:

1.  There is a presumption under SEQRA that the proposed facility – a “Type 1 action” – “is likely to have a significant adverse impact on the environment and may require a DEIS” (Draft Environmental Impact Statement). [See 6 NYCRR 617.4(a)(1).] Zephyr’s massive cannabis cultivation/processing/shipping facility does not just barely meet SEQRA’s thresholds for a “Type 1 action.”  It obliterates those standards: 

      (a) The proposed 1,375,000 square-foot facility is nearly six times the footprint of the 240,000 square feet of gross floor area for non-residential construction that triggers SEQRA’s Type 1 status in a city the size of Buffalo.  [Zephyr’s March 5, 2019 letter of intent does not mention this category of Type 1 actions.]

      (b) The plan to physically disturb 47.6 acres of the site is nearly five tines SEQRA’s 10-acre threshold for a Type 1 action. 

Additionally, the fact alone that the proposed cannabis facility is “substantially contiguous to any publicly owned or operated parkland, recreation area or designated open space” – that is, immediately abuts the Ship Canal Commons – makes it a Type 1 action carrying with it the presumption that it is likely to have a significant adverse impact on the environment.  [Zephyr’s March 5, 2019 letter of intent also does not mention this category of Type 1 actions.]

2.  The obligation of a lead agency to issue a Positive Declaration and require the project sponsor to prepare a DEIS is triggered by “a relatively low threshold” – that is, the DEIS is needed if the action MAY have a significant effect on any one or more aspects of the environment. [See 6 NYCRR 617.7(a)(1), 617.1(c).]  Under SEQRA, the Common Council has the obligation – as “stewards of the air, water, land and living resources” – to not shy away from requiring a DEIS, and to not rationalize why a Negative Declaration should be issued.  SEQRA mandates that a Positive Declaration be issued whenever a proposed project may have a significant adverse impact on any aspect of the environment (including aesthetic resources or neighborhood character).

3.  The Environmental Impact Statement is “the heart of SEQRA”. SEQRA has designed the Draft EIS and Final EIS process to ensure that the lead agency undertakes a full review of the adverse environmental effects of a project, provides the public with access to the review and the ability to assist the agency in the decision-making process, considers alternatives to the project, and carefully considers meaningful and practicable mitigation measures.  [See, for example, Miller v. City of Lockport, 210 AD2d 955 (4^th Dept. 1994).]  It is an effective tool to help guarantee an informed decision whether to approve or deny a proposed action.

4.  As lead agency, the Common Council has the authority under SEQRA to hire environmental, engineering, or planning consultants to review the project sponsor’s DEIS, and to charge the applicant a fee to recover the actual costs of that review. SEQRA anticipates that members of a lead agency often may lack the technical expertise needed to fully assess the potential impacts pf a proposed project.  It is for that reason that the SEQRA regulations not only require a lead agency to inform other interested agencies of a proposed action and solicit their input, but also empowers the lead agency to hire consultants with the requisite expertise, and to pass on the expense to the project sponsor.  [See 6 NYCRR 617.13(a), (c).] 

Application of these principles to Zephyr Partners’ proposed facility demonstrates the important role of the DEIS process.  Here are several examples:

A.  Odors.

As noted in my April 6, 2021 post, Zephyr’s engineering consultant mentions in its Full Environmental Assessment Form [FEAF] that there are “odors associated with processing” cannabis – an accessory use at the site – but they say nothing about the strong skunk-like odor associated with the growth of the plant, the primary activity to be conducted 24/7 throughout the entire year.  The pervasive and offensive nature of the odors resulting from marijuana cultivation (acknowledged by Public Health Ontario, and the Air-Conditioning, Heating and Refrigeration industry, and even in the Cannabis Industry Times) mandates a “hard look” that goes beyond the self-serving, anecdotal, non-scientific claim in Zephyr’s supporting papers that a California marijuana facility where Chlorine Dioxide is used for odor mitigation reports no complaints.  Given the fact that the City of Denver’s 2020 Best Management Practices guidelines (BMP) strongly recommend the use of carbon filtration, not ClO2, as the best odor-control technology for cannabis cultivation, the DEIS process would allow an assessment and comparison of alternative mitigation measures by experienced engineering professionals.  This is especially needed given Zephyr’s plans to construct multiple “greenhouses” immediately adjacent to the walking/biking/nature trails of the Ship Canal Commons, and in close proximity to the existing companies at the Buffalo Lakeside Commerce Park( Sonwil Distribution, CertainTeed, and Cobey, Inc.).

B.  Impacts on Aesthetic Resources, Parkland, and Existing Character.

As also noted in my April 6^th posting, the proposed project is not an idyllic “pot farm.”  Zephyr plans a massive industrial facility, with seven “high tech greenhouses” 30 feet tall, and ranging from 94,000 to 168,500 square feet in area.  This project would not only reside across Tifft Street from the Tifft Nature Preserve, and be visible from the Seaway Trail (a national scenic by-way), its southern boundary would adjoin the Ship Canal Commons – a public park and nature trail.  SEQRA considers a proposed project’s location that is “substantially contiguous” to a public park, recreation area, or open space, to be of such potential concern that it makes it a “Type 1 action” as long as it “exceeds 25 percent” of its designated Type 1 thresholds.  The southernmost cannabis cultivation (“grow”) facility alone, at 94,080 square feet, is 50% larger than the 60,000-square-foot minimum needed to trigger the Type 1 status when a project is adjacent to a public park/recreation area/open space. 

When the Common Council issued its March 2019 Negative Declaration, concluding that the proposed action would not have a significant adverse impact on aesthetic resources, open space or recreational resources, or existing neighborhood character, the determination of non-significance incorrectly stated that “properties that are industrial in nature border the new development on the south…”  This characterization contrasts starkly with two descriptions of the adjacent Ship Canal Commons found at the website of Wendel, Zephyr’s engineering consultant:  “a 22-acre interpretive greenspace” and “a pastoral passive activity space.”  With the issuance of a Positive Declaration, the lead agency would be in a position to require the project sponsor to provide objective evidence of the potential impacts of 30-foot tall, 94,080-square-foot and larger greenhouses located immediately to the north of this 22-acre public park and open space.  That evidence could include, for example, “view shed analysis” and computer-generated images.  With such documentation, the Common Council and the public would be in a position to reach fully-informed conclusions regarding the project’s potential adverse impacts on aesthetics, parkland, and neighborhood character.         [Click on an image to enlarge it.]

C.  Impacts on Human Health.

The creation of a hazard to human health is one of the “indicators of adverse impacts on the environment” found in the SEQRA regulations.  [See 6 NYCRR 617.7(1)(vii).]  When addressing this criterion, both Zephyr’s 2019 submission in support of its rezoning request, and the Common Council’s Negative Declaration, are silent on the topic of worker health at a cannabis cultivation facility.  However, had a Positive Declaration been issued in 2019, members of the public would have been in a position to advise Buffalo’s legislative body of an article prepared by the American Institute of Architects’ risk-management arm, AIA Trust, entitled, “Guide to Marijuana Facilities Design.”   That document attributes to “grow facilities” temperature and humidity comparable to indoor swimming pool centers, conditions that expose employees to fungi and other undesirable results. Moreover, under the subheading, “Worker Safety,” the AIATrust article states: “At marijuana grow facilities, workers are also subject to chemical exposure from fertilizers and pesticides, from sulfur dioxide as a result of fumigation, and from carbon dioxide asphyxiation.”  [See AIATrust Guide-Marijuana-Facilities-Design.] 

Given Zephyr’s claim that its facility would ultimately employ 500 to 1,000 workers, the human health implications of the proposed cannabis cultivation complex is an important topic for consideration under SEQRA.

D.  Conflict with Official Goals and Plans.  There are a number of significant ways in which the proposed action contradicts the March 2019’s conclusions that the proposed action is “consistent with the current Land Use Plan and the goal of further developing the Industrial Park,” and “with the character of the neighborhood”:

(1) The zoning map adopted by the Common Council in December 2016 is nuanced.  It places the land to the south of Laborers Way and immediately adjacent to the Ship Canal Commons – a public park zoned D-OG – in the less intrusive, less dense D-C Flex Commercial zone.  The land to the north of Laborers Way is zoned D-IL.  The proposed rezoning would do away with that rational distinction.

(2) The goal expressed by the Buffalo Urban Development Corporation when Laborers Way and surrounding infrastructure was completed was not merely to further develop the Industrial Park, but the specific goal of “attracting green companies to the City of Buffalo.”  As addressed below in “Impacts on Energy,” a cannabis cultivation project is anything but “green.”  Additionally, the BUDC divided the 47-acres adjoining Laborers Way into eight (8) medium-sized parcels, referred to as “Available Sites,” not one large assemblage serving one company.

(3) The proposed project, with 1,375,000 square feet of development on 47.6 acres, has a developed density of 28,888 square feet per acre.  That proposed density is greatly out-of-character with the existing businesses at the Buffalo Lakeside Commerce Park:  Sonwil Distributor consists of 300,000 square feet of structures on 52 acres, for a density of 5,769 square feet per acre; CertainTeed has 270,000 square feet on 25 acres, or 10,800 square feet per acre; and, Cobey’s building contains 90,000 square feet (which is a smaller footprint than Zephyr’s smallest greenhouses) on 12 acres, with a density of 7,500 square feet per acre.

(4) The adopted plans and maps envision the existence of a public right-of-way, Laborers Way (which was constructed with taxpayers’ money).  Zephyr Partners’ plan eliminates Laborers Way.

E.  Impacts on Energy.

Zephyr Partners states in its FEAF that its facility would generate an estimated annual demand of 25 MW of electricity.  Currently the site uses none.  When the infrastructure was installed (at taxpayer expense) for the portion of the Buffalo Lakeside Commerce Park where the proposed cannabis cultivation project would be located, the Buffalo Urban Development Corporation expressed its goal of “attracting green companies to the City of Buffalo.”  According to Denver’s 2020 Best Management Practices guidelines, the cannabis cultivation industry is far from a “green” industry.  It is a “resource intensive process,” largely due to energy demands for lighting, HVAC and dehumidification, which are a leading driver of greenhouse gas emissions, and result in the industry’s sizeable environmental footprint.  The DEIS process would allow the gathering of objective data so that the Common Council can compare the proposed project’s impact on energy with that of “green companies.”   

The above list of environmental concerns relating to cannabis cultivation facilities is not meant to be exhaustive.  Nonetheless, as long as any of these areas of adverse environmental impacts “may” be considered significant, the Common Council is obligated under SEQRA to issue a Positive Declaration and require preparation of a Draft Environmental Impact Statement.

With All Due Respect

Art Giacalone