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The Common Council is illegally trying to shut a Black Rock bakery waste business on the basis of an unconstitutional "popularity contest," an attorney for the company told a judge today.

Bruce S. Zeftel, attorney for Bakery Salvage Corp., complained to State Supreme Court Justice Penny M. Wolfgang that a city odor ordinance improperly targets the company's 10-year-old Chandler Street plant for closing without regard to legal rights or odor testing.

The odor law, passed in May and later revised, is "an obvious attempt by the Common Council to legislate us out of business," Zeftel told the judge.

He asked her to issue an order declaring the law unconstitutional and banning its enforcement.

Joseph A. Fiorella, a private attorney the city hired to defend the law, told the judge the Bakery Salvage plant "stinks."

Fiorella said the company's lawsuit is premature because no enforcement action has been taken while the Common Council studies homeowner complaints.

After admonishing about 18 Black Rock residents to stop arguing with Zeftel in court and telling Zeftel to stop "editorializing" about the plant's financial predicament, Justice Wolfgang reserved decision.

Court officials said a ruling may be issued by mid-January.

Zeftel complained to the judge that the current odor law was "crafted" by North Council Member David P. Rutecki and his personal lawyer, Henry E. Wyman, to circumvent the courts because three previous efforts by homeowners and the city to close the plant in court proceedings since 1981 failed.

The corporation counsel's office warned the city in December 1988 that, while the new law was being drafted, its ill-defined odor standards are unconstitutionally vague and possibly unenforceable, Zeftel said.

The law triggers a Common Council probe if anyone complains about odors given off by the plant, which processes stale baked goods for use as animal feeds.

Rutecki and the homeowners "can't show" any injuries to people or property caused by the plant operations, so Rutecki drafted a "silly, loose" odor provision that allows for the possible closing of the business "without just compensation" based on the "least odor" complaints, Zeftel said.

Rather than bring the "dirty laundry" of the city back into court a fourth time, Rutecki and Wyman devised what amounts to a "kangaroo court" proceeding in which Common Council action to close the plant can be sparked by a petition of 20 percent of homeowner living within a mile of the plant, Zeftel said.

The plant at 138 Chandler is in an area that traditionally has been zoned M-2, allowing for a wide range of heavy industry and manyer argues
ufacturing from steelmaking to beer brewing, junkyard operations and meat processing and pickle making, Zeftel said.

Labeling the odor law a thinly disguised "land use" law, Zeftel said the plant isn't subject to regulation under the code. Such land-use laws cannot be made retroactive and applied to existing facilities, Zeftel said.

Fiorella told the judge the petition-drive provision of the odor law "merely kicks off" a review by the Common Council, which held two public hearings on the plant in October, and doesn't affect the livelihood of Bakery Salvage, which has its headquarters in Williamsville.

The Common Council could allow the plant to remain open and limit its operations merely to the extent needed to eliminate the alleged odor problem, Fiorella said.

"This happens to be a smelly plant" and the Common Council is justified in trying "to see what can be done about it," Fiorella said.

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