With All Due Respect

[CAVEAT:  When this post was initially written, I incorrectly believed that the City of Buffalo Common Council had not rezoned land at the Buffalo Lakeside Commerce Park in furtherance of the subject cannabis cultivation facility.  In fact, on May 14, 2019, Buffalo’s Common Council did approve Zephyr Partners’ request to rezone four parcels of land on Laborer’s Way from D-C (“Flex-Commercial”) to D-IL (“Light Industrial”).  On March 30, 2021, when I investigated the zoning status of 15, 51, 87 and 125 Laborer’s Way, in preparation for writing this series of posts, the City of Buffalo’s on-line “Property Information” site incorrectly listed the zoning status of each of the four parcels as “D-C.”  I regret any confusion this post may have caused regarding the Common Council’s action in May 2019 in furtherance of Zephyr Partners’ plans.]  

[Note: This posting is the second in a three-part series regarding the development of cannabis cultivation facilities in Buffalo, NY.  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). Today I explain why I have reached the conclusion that the City of Buffalo’s zoning ordinance does NOT currently  permit a cannabis “grow” facility within its borders.]   

Zoning ordinances are an attempt by cities, villages and towns to protect and promote the public health, safety and welfare by establishing standards intended to ensure the orderly and compatible use of land.  These local laws divide a municipality into geographical areas called zones or zoning districts, and spell out the uses, and scale of buildings and lots allowed in each zone. [For a basic overview of land use and zoning laws, see the citizen’s guide that I helped to write, published by Partnership for the Public Good, Buffalo, in December 2018: click here.]   

The City of Buffalo’s zoning ordinance is officially called the Unified Development Ordinance (UDO), and is unofficially known as the “Green Code.”  It was adopted by the city’s legislative body, the Common Council, in late 2016, and went into effect in early 2017.  The UDO contains twenty-two zones, and spells out the activities or uses that are allowed in each zone.   The UDO/Green Code’s list of permitted uses is found at ”Table 6A, PRINCIPAL USES,” and identifies eighty-six (86) categories of uses, organized under eight (8) subheadings:  Residential, Civic, Lodging, Retail & Service, Employment, Agriculture, Transportation, and Infrastructure.

[Click on an image to enlarge it.]

The term “principal use” refers to the main or primary use or uses conducted on a lot or within a building; in contrast, an “accessory use” is a use located on the same site as a principal use that is incidental or subordinate to the principal use.  Buffalo’s zoning ordinance allows a site to have more than one principal use, as long as each principal use is permitted in the zone. 

The UDO’s “Principal Uses ” table divides uses into two categories:  “permitted uses,” which are uses permitted “by right” in the particular zone, that is, that are in compliance with the UDO and may be processed administratively by the city without the need for a public hearing; and, “special use” uses, which are activities considered to have increased potential for incompatibility in a zone, and, for that reason, require the approval of a “special use permit” by the Common Council – after a public hearing – before being allowed in the zone.    

Under the UDO/Green Code, a land owner or developer who wishes to conduct an activity at a particular site needs to first identify the zone within which the site is located (by checking out the UDO/Green Code’s Citywide_Zoning_Map_January2017, or by going to the Property Information tab at the City’s website).  If the use is listed as a “permitted use” on the UDO’s Table 6A, it is allowed “by right” in the zone.  Additionally, if an activity is not included as a permitted use in any of the twenty-two zones, but the City’s “Zoning Administrator” concludes that it is “similar in nature and impact” to a use listed in Table 6A, the activity may be treated as a permitted use.  On the other hand, “If a use is not listed and cannot be interpreted as similar in nature and impact to a use that is listed in Table 6A, the use is deemed prohibited.”  [See, UDO, Section 6.1.1(B), (D) & (E).] 

With this understanding of the UDO, we can apply these rules to Zephyr Partners’ March 2019 proposal for a cannabis cultivation project on eight parcels of land on Laborers Way in South Buffalo. 

Zephyr’s design team provided the following “Project Description” in its March 5, 2019 correspondence to the Common Council:

The proposed action is to develop 1.375 million square feet of cannabis cultivation facilities along with processing, quality control, extraction, research, and shipping/ receiving facilities.  The proposed development makes use of eight existing sites to the north and south of Laborers Way in the City of Buffalo (north of Union Ship Canal in the Lakeside Commerce Park). Roughly 65% of the built structures will house the growing facilities while the other 35% will house the accessory functions.  Protected wetlands are immediately north of the site and the Union Ship Canal is to the south across a public park.

Four of the eight parcels – located on the north side of Laborers Way – are zoned “D-IL Light Industrial,” and total about 27 acres  The four parcels on the south side of Laborers Way are in the “D-C Flex Commercial” zone, and comprise roughly 20.5 acres.  With its March 5, 2019 submission, Zephyr asked the Common Council to rezone the four D-C Flex Commercial parcels to D-IL Light Industrial, claiming that their proposed cannabis production facility was permitted by right in the D-IL zone, and with a special use permit in the D-C zone.  [CORRECTION:  On May 14, 2019, Buffalo’s Common Council rezoned 15, 51, 87 and 125 Laborer’s Way from D-C to D-IL.]

I can find no evidence in the public record that City Hall administrators – or the Common Council – ever questioned the project sponsor’s assertion that a cannabis cultivation facility is a permitted use in the D-IL and D-C zones.  As explained below, I have concluded that Zephyr’s assertion is incorrect.  The growing or cultivation of marijuana envisioned by Zephyr – its principal use – neither fits into any listed permitted use in the D-C or D-IL zones (or, any of Buffalo’s 22 zones), nor can be reasonably treated as similar in nature and impact to a permitted use.

At first glance, the terminology used for two of the UDO/Green Code broad categories of “principal uses” – Agriculture and Employment – might appear as potential candidates for allowing marijuana cultivation activities.  But the integrity of the zoning process mandates that the City’s zoning administrators look beyond Table 6A’s subheading when treating a proposed activity as a permitted use. 

“Cannabis cultivation facility” is not expressly listed as a permitted activity in the UDO.  That’s not a surprise given the illegality of cannabis usage by the general public when the Green Code was adopted in late 2016.  Consistent with the urban character of the City of Buffalo, there are only two activities – and both limited in scope – permitted as an “Agriculture” use in the UDO:  “Community Garden” and “Market Garden.”  Neither category envisions a massive, for-profit, commercial farm within the city limits, and neither can be reasonably thought of as a commercial-scale marijuana “grow” facility.  Here is what the Green Code provides:

6.1.7   Agriculture

A.  Community Garden.  A site where food, ornamental crops, or trees are grown for group, shareholder, or lessee use, or for donation.

      1.  Seed, fertilizer, and feed must be stored in sealed, rodent-proof containers.

      2.  No equipment, process, or other practice may be employed at a community garden that creates dust or odors detectable off the property, or any other effect determined by the Commissioner of Permit and Inspection Services to be detrimental to the public health, safety, or welfare.

B.  Market Garden.  A site where food, ornamental crops, or trees are grown for sale to the general public.

1. A special use permit for a market garden may be granted in an N-4-30 or N-4-50 zone only
if located east of Jefferson Avenue, south of Best Street/Walden Avenue, west of Bailey
Avenue, and north of Clinton Street.

2. Seed, fertilizer, and feed must be stored in sealed, rodent-proof containers.

3. No equipment, process, or other practice may be employed at a market garden that
creates dust or odors detectable off the property, or any other effect determined by
the Commissioner of Permit and Inspection Services to be detrimental to the public
health, safety, or welfare.

4. Agricultural products, plants, eggs, and honey grown or produced on or within the
subject property or within the City of Buffalo may be sold on the premises if the market
garden use is the only use of the subject property or occupies at least 50% of the area
of the property. In addition, foods prepared on site or off site may be sold if the principal
ingredients are grown or produced on the subject property or within the City of Buffalo.

5. On-site sales within an N-2R, N-3R, N-4-30, or N-4-50 zone must comply with the following:
a. No structure or building except for a maximum of one market stand may be
used to sell produce or other goods. b. On-site

The massive quantity of marijuana Zephyr plans to grow at the South Buffalo site certainly is not the “food, ornamental crops, or trees” envisioned in the UDO’s description of “Community Garden.”  And, under New York’s newly enacted adult-use marijuana law – the Cannabis/Marijuana Regulation & Taxation Act (MRTA) – licensed growers and processors are prohibited from owning retail stores that sell their product directly to the consumer.  In light of MRTA’s restrictions, one could not logically treat the proposed cannabis growing facility as a site selling its crop to the general public.    

Given the pervasive skunk-like odors associated with cannabis crops, and the energy-intensive nature of the business (see the discussion and links in “South Buffalo Cannabis Facility is not in the Public Interest”), it would be  arbitrary and irrational to interpret cannabis cultivation operations as similar in nature and impact to either a community garden or market garden. 

While a cannabis grow facility will generate jobs, it is not an activity that falls within the uses in the UDO/Green Code’s “Employment” category.  None of the Employment listed uses involve the growing of crops.  And, as the following description of “Industrial, Light” demonstrates, a non-manufacturing activity such as the growing of crops was not what the Common Council considered “light industrial” when the UDO was enacted:

6.1.6 Employment

                                                …

1. Industrial, Light. The processing or manufacturing of finished products or parts from previously prepared materials including processing, fabrication, assembly, treatment, and packaging of such products, and incidental storage, sales, and distribution of such products, provided that all manufacturing processes are contained entirely within a fully enclosed building.  Any heat, glare, dust, smoke, fumes, odors, or vibration are confined to the building.  A light industrial use may include a showroom or ancillary sales of products related to the items manufactured on-site.

While the various “accessory functions” included in Zephyr Partners’ project description – processing, quality control, extraction, research, and shipping/receiving facilities – may be permitted uses in the D-IL and D-C zones, the proposed “primary use” – over 800,000 square feet of marijuana cultivation facilities – is neither listed as a permitted use or special use in any of the Green Code’s 22 zoning districts, nor can be reasonably treated as similar in nature and impact to a permitted use.

To quote UDO Section 6.1.1(D)(2), “If a use is not listed and cannot be interpreted as similar in nature and impact to a use that is listed in Table 6A, the use is deemed prohibited.” 

With All Due Respect

Art Giacalone