Batavia Town City Zoning Code
ARTICLE VII
Administration and Enforcement
§ 235-56 Enforcement officers.
The responsibility of administering and enforcing the provisions of this chapter is hereby conferred upon the Building Inspector and his/her duly authorized assistants, who shall have the powers conferred upon him/her by this chapter, those as may be reasonably implied therefrom and those powers conferred upon him/her by other applicable laws. The Building Inspector and his/her duly authorized assistants shall be appointed by the Town Board and receive such compensation as determined by the Town Board. All references to duties and/or authority of the Building Inspector shall be deemed to also include any duly authorized assistants.
§ 235-57 Duties of Building Inspector.
Applications and permits. It shall be the duty of the Building Inspector, or his/her duly authorized assistants, to process applications and issue the permits required by this chapter.
Inspection and review. It shall also be the duty of the Building Inspector, or his/her duly authorized assistants, to cause any plans, buildings or premises to be examined or inspected so as to determine whether or not they are in violation of the provisions of this chapter. He/she shall have the right to enter any building or premises with the consent of the owner, or by a court order, during reasonable hours in the course of his/her duties.
Violations and written orders. When the Building Inspector determines that any plans, buildings or premises are in violation of the provisions of this chapter, he/she shall issue a written notice of violation to the owner and/or other responsible party directing that said violation be remedied. Said written notice shall specify the nature of the violation found to exist, the remedy ordered, the time permitted for such remedial action, the penalties and remedies which may be invoked by the town and the violator's rights of appeal.
Revocation of certificate of compliance. On service of the above-described notice of violation, the certificate of compliance for such building or use shall be held null and void. A new certificate of compliance shall be required for any further use of such building or premises.
Records. The Building Inspector shall maintain a permanent record of all matters considered and all action taken by him/her. Such records shall form a part of the records of his/her office and shall be available for the use of the Town Board and other officials of the town. The records to be maintained shall include at least the following:
Application file. A separate, permanent file shall be established for each application for a permit required by this chapter at the time said application is filed. Such file shall contain one signed copy of the application and all supporting documents and plans, notations regarding pertinent dates and fees, etc., one copy of any resolution and/or decision of the Planning Board and/or Board of Appeals adopted in connection with the application, and the date the permit applied for was issued or denied by the Building Inspector, together with a copy of such permit or denial.
Monthly report. The Building Inspector shall submit a monthly written report for the Town Board. Said report shall cite all actions taken by the Building Inspector, including all referrals made by him/her, all permits and certificates issued and denied, all complaints of violations received, all violations found by him/her, and any action taken by him/her in connection with each such violation. A copy of this monthly report shall also be provided by the Building Inspector to the Tax Assessor, Planning Board and Board of Appeals.
§ 235-58 Certificates and permits.
The following certificates and permits are hereby established for the equitable enforcement and administration of the provisions of this chapter:
Zoning permit. The Building Inspector is hereby empowered to issue a zoning permit for any plans involving the construction or alteration of a building or structure or part of any building or structure, including signs, or the change in use of any land, building or structure or part thereof, where he/she determines that such plans comply with the provisions of this chapter. A zoning permit is not a building permit. An applicant may need both permits.
Temporary use permit. Upon written direction of the Planning Board, the Building Inspector is hereby empowered to issue a temporary use permit pursuant to §§ 235-54B and 235-63B(4). Except as otherwise provided in § 235-54B, a temporary use permit shall only be effective for a period not exceeding 12 months, and such permit may be extended by the Planning Board for an additional consecutive period not exceeding six months.
Emergency housing permit. The Building Inspector is hereby empowered to issue a nonrenewable emergency housing permit when a dwelling unit is rendered uninhabitable (e.g., fire, flooding, etc.), for a period not exceeding one year in conformance with § 235-54B.
Special use permit. The Building Inspector is hereby empowered to issue a special use permit when granted by the Planning Board as provided for in § 235-63.
Certificate of compliance. The Building Inspector is hereby empowered to issue a certificate of compliance certifying that all provisions of this chapter have been complied with in respect to the location and use of the building, structure or premises in question.
§ 235-59 Application for zoning permit.
Application. Applications for zoning permits shall be accompanied by a layout sketch, drawn to scale, showing the shape and dimensions of the lot to be affected, the size and location of all buildings or structures to be constructed, altered or extended as well as unaffected structures that shall remain, the intended use of each building or structure, the exact location of all utility and other easements and rights-of-way, and any other information with regard to the lot affected and neighboring lots as may be necessary for compliance with requirements of this chapter. The applicant is solely responsible for the accuracy of all information, data and site plans submitted pursuant to this chapter. Four copies of the application, together with the layout sketch, shall be submitted. The Building Inspector shall carefully consider the application, layout sketch and any supporting documents for compliance with this chapter and either issue or deny the zoning permit in a timely manner.
Issuance of zoning permit. The Building Inspector shall issue a zoning permit only after the site plan, if required, has been approved by the Planning Board and any required variances and/or special use permits have been obtained.
[Amended 2-19-2003]
Installation of foundation. The Building Inspector shall be notified when the site is prepared for installation of the foundation for any building or structure and shall inspect the site to check the proposed location thereof.
Completion of construction. A zoning permit shall expire if construction is not substantially completed within a period of one year from the date of said permit. The Building Inspector may issue a six-month extension for good cause shown. Only two such extensions shall be permitted.
Location of permit. The zoning permit shall be located in a place readily visible to the public during the construction process.
§ 235-60 Fees.
Fees may be charged for the processing of applications for the various permits, amendments, and variances required and/or permitted by the provisions of this chapter, together with site plan review and planned unit developments. The fees shall be set by separate resolution of the Town Board and may be changed from time to time in the same manner.
§ 235-61 Certificate of compliance.
No land shall be used, occupied or changed in use and no building hereafter erected, altered, or extended shall be used or changed in use until a certificate of compliance has been issued by the Building Inspector in accordance with the provisions of this chapter.
§ 235-62 Zoning Board of Appeals.
Organization. The Town Board shall appoint five regular members to the Zoning Board of Appeals in accordance with the provisions of § 267 of the Town Law, and two alternate member(s) as provided for by Local Law No. 1 of 2001, and shall designate the Chairperson thereof. In the absence of a Chairperson the Board of Appeals may designate a member to serve as Acting Chairperson. The term of office for regular members shall be governed by the applicable provisions of New York Town Law, and the term of office for the alternate member(s) shall be two years. The Chairperson of the Board of Appeals may designate an alternate member to substitute for a regular member when such member is unable to participate on an application or matter before the Board. When so designated, the alternate member shall possess all the powers and responsibilities of a regular member. Such designation shall be entered into the minutes of the initial Board of Appeals meeting at which such substitution is made. All provisions of state law relating to Board of Appeals member eligibility, vacancy in office, removal, compatibility of office and service on other boards, as well as any town requirements related to training, compensation and attendance, shall also apply to alternate members.
[Amended 4-18-2001]
Meetings, minutes and records. Meetings of the Zoning Board of Appeals shall be open to the public to the extent provided in Article 7 of the Public Officers Law. The Zoning Board of Appeals shall keep minutes of its proceedings, showing the vote of each member upon every question or, if absent or failing to vote, indicating such fact, and shall also keep records of its examinations and other official actions.
Filing requirements. Every rule, regulation, amendment or repeal thereof and every order, requirement, decision or determination of the Zoning Board of Appeals shall be filed in the office of the Town Clerk within five business days and shall be a public record.
Hearing appeals. The Zoning Board of Appeals shall hear and decide appeals from and review any order, requirement, decision, interpretation or determination made by the Building Inspector. The concurring vote of a majority of the entire Zoning Board of Appeals shall be necessary to reverse any order, requirement, decision or determination of the Building Inspector or to grant a use or area variance. In those instances where, due to the location of the affected property, a variance request is subject to review under General Municipal Law § 239-m, a majority plus one vote of the entire Zoning Board of Appeals is necessary to override a County Planning Board recommendation of disapproval or approval with modification. Such appeal may be taken by any person aggrieved or by an officer, department, board or bureau of the town.
Time of appeal.
Such appeal shall be taken within 60 days after the filing of any order, requirement, decision, interpretation or determination of the Building Inspector by filing with said official and with the Town Clerk a notice of appeal specifying the grounds thereof and the relief sought. Such notice of appeal shall be filed on forms available from the Building Inspector or Town Clerk. The cost of sending or publishing any notice relating to such appeal shall be borne by the appealing party and shall be paid to the Town Clerk prior to the hearing of such appeal.
An appeal shall stay all proceedings in furtherance of the action appealed from, unless the Building Inspector from whom the appeal is taken certifies to the Board of Appeals, after notice of appeal shall have been filed with the Building Inspector, that by reason of the facts stated in the certificate a stay would, in his/her opinion, cause imminent peril to life or property, in which case proceedings shall not be stayed otherwise then by a restraining order which may be granted by the Board of Appeals or by a court of record on application, on notice to the Building Inspector from whom the appeal is taken and on due cause shown.
Hearing on appeal.
A public hearing shall be held by the Zoning Board of Appeals before deciding an appeal. Such public hearing shall be advertised by publication in a paper of general circulation within the town of a notice of such hearing at least five days prior to the date thereof. When required by the provisions of § 239 of the General Municipal Law, the Zoning Board of Appeals shall forward the application to the County Planning Board for its review.
At least 30 days before the date of the public hearing, unless such time limit is waived by the Planning Board, the Secretary of the Zoning Board of Appeals shall transmit to the Planning Board a copy of the notice of hearing and all pertinent information for those appeals involving a use variance. The Planning Board shall inform the Zoning Board of Appeals in writing of its advisory opinion (including recommendations) prior to the hearing. Failure of the Planning Board to inform the Zoning Board of Appeals within the allotted time shall be deemed to signify no recommendation on the application.
At least 10 days before the date of the hearing, the Zoning Board of Appeals shall send, by regular mail, a copy of the notice of hearing to all Town of Batavia property owners whose property(ies) is located within 250 feet of the property which is the subject of the application when the property involved is located in an R District, or within 500 feet when the involved property is located in any other district.
Time of decision. The Zoning Board of Appeals shall decide upon an appeal within 62 days after the conduct of the public hearing. Prior to rendering its decision the Board shall first complete the SEQR process. Said time of decision may be extended by mutual consent of the applicant and Zoning Board of Appeals.
Filing of decision and notice. The decision of the Zoning Board of Appeals on an appeal shall be filed in the office of the Town Clerk within five business days after the day such decision is rendered and a copy thereof mailed to the applicant by regular mail.
Permitted action by the Zoning Board of Appeals.
Interpretations, requirements, decisions and determinations. The Zoning Board of Appeals may reverse or affirm, wholly or partially, or may modify the order, requirement, decision, interpretation or determination appealed from and shall make such order, requirement, decision, interpretation or determination as in its opinion ought to have been made.
Use variances.
The Zoning Board of Appeals, on appeal from the decision or determination of the Building Inspector, shall have the power to grant use variances authorizing a use of land which otherwise would not be allowed or would be prohibited by this chapter.
No such use variance shall be granted by the Zoning Board of Appeals without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship. In order to prove such unnecessary hardship, the applicant shall demonstrate to the Zoning Board of Appeals that for each and every use allowed under the zoning regulations for the particular district where the property is located:
The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;
The alleged hardship relating to the property in question is unique and does not apply to a substantial portion of the district or neighborhood;
The requested use variance, if granted, will not alter the essential character of the neighborhood; and
The alleged hardship has not been self-created.
The Zoning Board of Appeals, in the granting of use variances, shall grant the minimum variance that it shall deem necessary and adequate to address the unnecessary hardship proven by the applicant and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.
Area variances.
The Zoning Board of Appeals shall have the power, upon appeal from a decision or determination of the zoning enforcement officer, to grant area variances from the area or dimensional requirements of this chapter.
In making its determination, the Zoning Board of Appeals shall take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant. In making such determination, the Board shall also consider:
Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance;
Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;
Whether the requested area variance is substantial;
Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and
Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the Zoning Board of Appeals but shall not necessarily preclude the granting of the area variance.
The Zoning Board of Appeals, in the granting of area variances, shall grant the minimum variance that it shall deem necessary and adequate and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.
Imposition of conditions. The Zoning Board of Appeals shall, in the granting of both use variances and area variances, have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed use of the property. Such conditions shall be consistent with the spirit and intent of this chapter and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.
Solar access. Pursuant to Chapter 742 of the Laws of 1979, the siting of houses to take best advantage of solar energy and/or the construction of residential solar equipment shall be considered in the application of the provisions of this chapter.[1] Upon appeal pursuant to this section of this chapter the Zoning Board of Appeals shall consider the specific conditions of the case and may make provisions for, so far as conditions permit, the accommodation of solar energy systems and equipment and access to sunlight necessary therefor when hearing a request for an area variance.
Rehearing. A motion for the Zoning Board of Appeals to hold a rehearing to review any order, decision or determination of the Board not previously reviewed may be made by any member of the Board. A unanimous vote of all members of the Board then present is required for such rehearing to occur. Such rehearing is subject to the same notice provisions as an original hearing. Upon such rehearing the Board may reverse, modify or annul its original order, decision or determination upon the unanimous vote of all members then present, provided the Board finds that the rights vested in persons acting in good faith in reliance upon the reviewed order, decision or determination will not be prejudiced thereby.
§ 235-63 Planning Board.
Organization. The Town Board shall appoint seven members to the Planning Board in accordance with the provisions of § 271 of the Town Law and two alternate member(s) as provided for by Local Law No. 1 of 2001, and shall designate the Chairperson thereof. In the absence of a Chairperson the Planning Board may designate a member to serve as Acting Chairperson. The term of office for regular members shall be governed by the applicable provisions of New York Town Law, and the term of office for the alternate member(s) shall be two years. The Chairperson of the Planning Board may designate an alternate member to substitute for a regular member when such member is unable to participate on an application or matter before the Board. When so designated, the alternate member shall possess all the powers and responsibilities of a regular member. Such designation shall be entered into the minutes of the initial Planning Board meeting at which such substitution is made. All provisions of state law relating to the Planning Board member eligibility, vacancy in office, removal, compatibility of office and service on other boards, as well as any town requirements related to training, compensation and attendance, shall also apply to alternate members.
[Amended 4-18-2001]
Powers and duties:
Site plan review. Review of site plans in accordance with New York State Town Law § 274-a, as set forth in Subsection C of this section, for any application for a zoning permit other than those for single-family dwellings and their accessory uses and/or buildings unless otherwise required by this chapter (i.e., special use permit).
Review use variances. Review use variance applications referred to the Planning Board in accordance with §§ 235-62F and at its discretion make a recommendation to the Zoning Board of Appeals.
Temporary uses and structures. Grant permits for temporary uses and structures only as follows, provided a public hearing has been held which meets the same notice requirements as set forth in Subsection D(3) of this section:
Except as otherwise provided in § 235-43A(1)(c), the Planning Board may direct the Building Inspector to issue a temporary use permit for a period of time not exceeding 12 months for incidental nonconforming uses and structures as follows:
Temporary uses incidental to a construction project.
Temporary real estate sales office incidental to a subdivision.
Temporary use permits shall be conditioned upon an agreement by the applicant to remove the use upon expiration of the permit.
Temporary use permits may be reissued only once for an additional consecutive period not exceeding six months.
Site plan review. The Planning Board, at a regular or special meeting, shall review and approve, approve with modification, or disapprove a site plan in connection with any application for a zoning permit other than those for single-family dwellings and their accessory uses and/or buildings.
Notice and public hearing.
[Amended 2-19-2003]
The Planning Board shall notify all property owners within the Town of Batavia who own land that is either contiguous or directly across from the involved property. Such notice shall be sent by regular mail, at least 10 days before the meeting. In those instances when the Planning Board holds an optional public hearing (See following subsection.) on a site plan review, this notice to contiguous property owners is not required.
The Planning Board may, in its sole discretion, hold a public hearing as part of the site plan review process. When a public hearing is held as part of the site plan review, the public hearing shall be held at a time fixed within 62 days from the date of the application for site plan review is received by it and public notice thereof shall be published in a newspaper of general circulation in the Town at least five days prior to the date of the hearing. The Planning Board shall mail a notice of the hearing to the applicant at least 10 days before such hearing and also send, by regular mail, a copy of the notice of hearing to all owners of property located within 250 feet of the property which is the subject of the application when the property involved is located in an R District, or 500 feet when the involved property is located in any other district, at least 10 days before the date of the hearing. When necessary under § 239 of the General Municipal Law, the Planning Board shall forward the site plan to the Genesee County Planning Board for its review prior to taking any final action.
Submission of site plan and data. The applicant shall submit to the Town Clerk 10 copies of a site plan and supporting data in a form satisfactory to the Planning Board, including but not limited to the following information presented in graphic form and accompanied by a written text:
Survey of property showing existing features, including contours, utility easements, large trees, buildings, uses, structures, streets, rights-of-way, zoning and ownership of surrounding property.
Layout sketch showing proposed lots, blocks, building locations and land use area.
Traffic circulation, parking and loading spaces, and pedestrian walks.
Landscaping plans, including site grading, landscape design, open space and buffer zone.
Preliminary architectural drawings for buildings to be constructed, floor plans, exterior elevations and sections.
Preliminary engineering plans, street improvements, storm drainage, water supply and sanitary sewer facilities and fire protection.
Engineering feasibility study of any anticipated problem which may arise from the proposed development, as required by the Planning Board.
Construction sequence and time schedule for completion of each phase for buildings, parking and landscaped areas.
Description of proposed uses, anticipated hours of operation, expected number of employees, and anticipated volume of traffic generated.
Description of proposed measures to control runoff and drainage from the site and, when required by the New York State Department of Environmental Conservation and/or the SEQR process, a stormwater management and erosion control plan.
A description of the proposed generation, storage and/or disposal of hazardous materials and/or hazardous wastes on site, including estimates of amounts involved and provisions for transport, storage and environmental protection.
Any other permits or applications made to other governmental agencies and any additional information requested by the Planning Board.
Site plan review criteria. The Town Planning Board shall review the site plan and supporting data before approval, approval with modifications, or disapproval of such site plan, taking into consideration the following:
Harmonious relationship between proposed uses and existing adjacent uses.
Maximum safety of vehicular circulation between the site and street, including emergency vehicle access.
Adequacy of interior circulation, parking and loading facilities, with particular attention to pedestrian safety and emergency vehicle access.
Adequacy of landscaping and setbacks to achieve compatibility with, and protection of, adjacent residential uses.
Adequacy of municipal facilities to serve the proposal, including streets, water supply and wastewater treatment systems, stormwater control systems, and fire protection.
Protection of the aquifer and aquifer recharge areas that provide drinking water for both private and municipal wells. In evaluating the protection of the aquifer, aquifer recharge areas and the water supplies, the Planning Board shall give consideration to the simplicity, reliability, and feasibility of the control measures proposed and the degree of threat to water quality that would result if the control measures failed.
Area variances. Notwithstanding any provisions of law to the contrary, where a proposed site plan contains one or more features which do not comply with the zoning regulations, applications may be made to the Zoning Board of Appeals for an area variance pursuant to New York State Town Law § 274-a, without the necessity of a decision or determination of an administrative official charged with the enforcement of the zoning regulations.
Modifications and conditions.
The Planning Board may require changes or additions in relation to yards, driveways, landscaping, buffer zones, etc., to ensure safety, to minimize traffic difficulties and to safeguard adjacent properties. Should changes or additional facilities be required by the Planning Board, final approval of the site plan shall be conditional upon satisfactory compliance by the applicant in making the changes or additions.
The Planning Board shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to a proposed site plan. Upon its approval of said site plan, any such conditions must be met in connection with the issuance of permits by applicable enforcement agents or officers of the town.
Waiver of requirements. The Planning Board is empowered, when reasonable, to waive any requirements for the approval, approval with modifications or disapproval of site plans submitted for approval. Any such waiver, which shall be subject to appropriate conditions set forth in this chapter, may be exercised in the event any such requirements are found to be not requisite in the interest of the public health, safety or general welfare or inappropriate to a particular site plan.
Reservation of parkland on site plans containing residential units.
Before the Planning Board may approve a site plan containing residential units, such site plan shall also show, when required by the Planning Board or this chapter, a park or parks suitably located for playground or other recreational purposes.
Land for park, playground or other recreational purposes may not be required until the authorized Board has made a finding that a proper case exists for requiring that a park or parks be suitably located for playgrounds or other recreational purposes within the town. Such findings shall include an evaluation of the present and anticipated future needs for park and recreational facilities in the town based on projected population growth to which the particular site plan will contribute.
In the event the Planning Board makes a finding pursuant to Subsection C(7)(b) of this section that the proposed site plan presents a proper case for requiring a park or parks suitably located for playgrounds or other recreational purposes, but that a suitable park or parks of adequate size to meet the requirement cannot be properly located on such site plan, the Planning Board may require a sum of money in lieu thereof to be established by the Town Board. In making such determination of suitability, the Board shall assess the size and suitability of lands shown on the site plan which could be possible locations for park or recreational facilities, as well as practical factors, including whether there is a need for additional facilities in the immediate neighborhood. Any moneys required by the Planning Board in lieu of land for park, playground or other recreational purposes, pursuant to the provisions of this section, shall be deposited into a trust fund to be used by the town exclusively for park, playground or other recreational purposes, including the acquisition of property.
Notwithstanding the foregoing provisions of this Subsection C(7), if the land included in a site plan under review is a portion of a subdivision plat which has been reviewed and approved pursuant to New York State Town Law § 276, the Planning Board shall credit the applicant for any land set aside or money donated in lieu thereof under such subdivision plat approval. In the event of resubdivision of such plat, nothing shall preclude the additional reservation of parkland or money donated in lieu thereof.
Performance bond or letter of credit as a condition of site plan approval. The Planning Board may require as a condition of site plan approval that the applicant file a performance bond or letter of credit in such amount as the Planning Board determines to be in the public interest, to ensure that the proposed development will be built in compliance with accepted plans. Any such bond must be in a form acceptable to the Town Attorney for an amount approved by the Town Board.
Performance standards. In all districts, uses are not permitted which violate applicable county, state and/or federal codes and regulations pertaining to environmental issues. The Planning Board, under its powers of site plan review and approval, may, in its discretion, reject any uses if it determines that insufficient evidence has been submitted to show compliance with these environmental standards. However, final responsibility for compliance with all environmental laws and regulations lies with the applicant.
Decisions. The Planning Board shall decide any matter referred to it under this Subsection C within 62 days after the first regular monthly meeting of the Planning Board at least 10 days prior to which the site plan and all supporting data required by this article are submitted to the Town Clerk. Such time may be extended by mutual consent of the Planning Board and the developer. Prior to rendering its decision the Board shall first complete the SEQR process. In those instances where, due to the location of the affected property, a variance request is subject to review under General Municipal Law § 239-m, a majority plus one vote of the entire Planning Board is necessary to override a County Planning Board recommendation of disapproval or approval with modification. The decision of the Planning Board shall be filed in the office of the Town Clerk within five business days after such decision is rendered and a copy mailed to the applicant by regular mail.
Changes and revisions. Any applicant wishing to make changes in an approved site plan shall submit a revised site plan to the Planning Board for review and approval.
Revocation of permit. After a permit has been issued following site plan review based upon either approval or approval with modifications, a permit may be revoked by the authorizing Board which granted the approval for said permit in the event that the permit grantee deviates from or does not comply with the site plan exactly as approved or with any modifications or conditions established by the authorizing Board or in the event that, after full compliance has been achieved, the permit grantee thereafter deviates from or ceases to comply with the site plan exactly as approved or with any modifications or conditions established by the authorizing Board. The procedure for revocation of a permit shall be as follows:
[Added 9-19-2007 by L.L. No. 4-2007]
After notification in writing by the Zoning Enforcement Officer of alleged violations, the authorizing Board shall hold a public hearing to consider whether or not the permit grantee is fully compliant with the approved site plan or has violated any terms or conditions of said permit. The public hearing shall be held only after the permit grantee has been notified by the Zoning Enforcement Officer of said violations and has failed to correct said violations within the time period established by the Zoning Enforcement Officer, to be not less than 15 calendar days.
At least 10 calendar days before said public hearing, a legal notice of said hearing shall be published in a newspaper of general circulation in the Town of Batavia. Written notice of said hearing shall also be mailed to the permit grantee by certified mail, return receipt requested, and by regular first-class mail directed to the last known address of the permit grantee.
Special use permit. The Planning Board, at a regular or special meeting, shall review and approve, approve with modification, or disapprove an application for a special use permit. Uses requiring a special use permit are those which are compatible with the general spirit of this chapter if certain standards and conditions are met. Each such use is listed in this chapter as a use permitted within a zoning district upon the issuance of a special use permit. All provisions of this chapter shall be followed, and the Planning Board must find that the proposed implementation of such use is not inconsistent with the public welfare. A special use permit may be subject to conditions and safeguards imposed by the public welfare. Also, the Building Inspector shall at least annually inspect the use of the property in question to ensure compliance with conditions which have been imposed by the Planning Board in issuing such special use permit and other applicable provisions of this chapter.
Application. Applications for special use permits shall be made in writing on the appropriate form obtained from the Building Inspector. Four copies of each application, including site plan, shall be submitted to the Building Inspector, who shall review the application for completeness prior to forwarding it to the Town Clerk and the Planning Board. One copy shall be retained by the Building Inspector. Such site plan shall show the location of all buildings, parking, access and circulation, open space, landscaping and other information necessary to determine that the proposed special use complies with the intent of this chapter.
Area variance. Where a proposed special use permit contains one or more features which do not comply with this chapter, application may be made to the Zoning Board of Appeals for an area variance pursuant to § 274-b of Town Law without the necessity of a decision or determination of the Building Inspector.
Notice and public hearing. The Planning Board shall hold a public hearing as part of the special use permit process. The public hearing shall be held at a time fixed within 62 days from the date the application for a special use permit is received by the Board, and public notice thereof shall be published in a newspaper of general circulation in the town at least five days prior to the date of the hearing. At least 10 days before such hearing, the Planning Board shall mail a notice of the hearing to the applicant and also send, by regular mail, a copy of the notice of hearing to all Town of Batavia property owners whose property(ies) is located within 250 feet of the property which is the subject of the application when the property involved is located in an R District, or within 500 feet when the involved property is located in any other district. When necessary under § 239 of the General Municipal Law, the Planning Board shall forward the site plan to the Genesee County Planning Board for its review prior to taking any final action.
Conditions. The Planning Board shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to a proposed special use permit plan. Upon its approval of said special use permit, any such conditions must be met in connection with the issuance of the special use permit by the Building Inspector.
Waiver of requirements. The Planning Board is empowered, when reasonable, to waive any requirements, other than procedural processes required by law, for the approval, approval with modifications or disapproval of special use permits submitted for approval, except that any modifications to dimensional requirements (setbacks, lot size, etc.) shall require a variance from the Zoning Board of Appeals. Any such waiver, which shall be subject to appropriate conditions set forth in this chapter, may be exercised in the event any such requirements are found to be not requisite in the interest of the public health, safety or general welfare or inappropriate to a particular special use permit.
[Amended 2-20-2008 by L.L. No. 2-2008]
Decisions. The Planning Board shall decide any matter referred to it under this Subsection D within 62 days after the public hearing. Such time may be extended by mutual consent of the Planning Board and the applicant. Prior to rendering its decision the Board shall first complete the SEQR process. In those instances where, due to the location of the affected property, a special use permit request is subject to review under General Municipal Law § 239-m, a majority plus one vote of the entire Planning Board is necessary to override a County Planning Board recommendation of disapproval or approval with modification. The decision of the Planning Board shall be filed in the office of the Town Clerk within five business days after such decision is rendered and a copy mailed to the applicant by regular mail.
Abandonment of special use permit. A special use permit shall expire when there occurs a cessation of such use or activity, for which said special use was originally issued, for a period of one year. Upon evidence that a special use permit has been abandoned, the Building Inspector shall issue a notice of abandonment to the owner of record for the property by registered mail. If after 60 days the owner has not provided satisfactory proof that the special use did not cease, the Planning Board shall revoke the special use permit.
Standards applicable for all special use permits.
The Planning Board may issue a special use permit only after it has found that all the following standards and conditions have been satisfied, in addition to any other applicable standards and conditions contained elsewhere in this chapter:
The location and size of such use and intensity of the operations involved in or conducted therewith, its site layout and its relation to access streets shall be such that both pedestrian and vehicular traffic to and from the use and the assembly of persons in connection therewith will not be hazardous and shall be in harmony with the orderly development of the district.
The location, nature and height of buildings, walls and fences will not discourage the appropriate development and use of adjacent land and buildings nor impair their value.
The operation of any such use shall not be more objectionable to nearby properties than would be the operation of any permitted use.
The proposed use shall not cause undue noise, vibration, odor, lighting glare, and unsightliness so as to detrimentally impact on adjacent properties.
When a commercial or industrial special use abuts a residential property, the Planning Board may find it necessary to require screening of sufficient height and density (i.e., fences, hedges, etc.) to reduce or eliminate the conflicting environmental conditions previously mentioned.
Electrical disturbances shall not be caused so as to disrupt radio or television communications in the immediate area.
The proposed use shall meet the off-street parking and loading requirements of similar uses.
Appropriate on-lot drainage shall be provided so as to eliminate any potential on-site water related problems. Also, the drainage systems created shall not detrimentally impact on adjacent properties.
Traffic access to and from the use site, as well as on-lot traffic circulation, shall be designed so as to reduce traffic hazards. The Planning Board shall review and approve all such proposals.
Such use shall be attractively landscaped. This shall involve grading, seeding, and regular mowing of the front yard area at a minimum.
A special use permit shall not be issued for a use on a lot where there is an existing violation of this chapter unrelated to the use which is the subject of the requested special use permit, as determined by the Planning Board.
As a condition of all special use permits, right of entry for inspection with reasonable notice shall be provided to determine compliance with the conditions of said permit.
In addition to the general standards for special permits as set forth herein, the Planning Board may, as a condition of approval for any such use, establish any other additional standards, conditions, and requirements it deems necessary or appropriate to promote the public health, safety and welfare and to otherwise implement the intent of this chapter.
The above standards are not intended to apply to uses whose regulation has been preempted by the state or federal government, i.e., mining.
(Reserved)
(Reserved)
(Reserved)
Revocation of special use permit. After a special use permit has been issued following site plan review based upon either approval or approval with modifications, a special use permit may be revoked by the authorizing Board which granted the approval for said special use permit in the event that the special use permit grantee deviates from or does not comply with the site plan exactly as approved or with any modifications or conditions established by the authorizing Board or in the event that, after full compliance has been achieved, the special use permit grantee thereafter deviates from or ceases to comply with the site plan exactly as approved or with any modifications or conditions established by the authorizing Board. The procedure for revocation of a special use permit shall be as follows:
[Added 9-19-2007 by L.L. No. 4-2007]
After notification in writing by the Zoning Enforcement Officer of alleged violations, the authorizing Board shall hold a public hearing to consider whether or not the special use permit grantee is fully compliant with the approved site plan or has violated any terms or conditions of said special use permit. The public hearing shall be held only after the special use permit grantee has been notified by the Zoning Enforcement Officer of said violations, and has failed to correct said violations within the time period established by the Zoning Enforcement Officer, to be not less than 15 calendar days.
At least 10 calendar days before said public hearing, a legal notice of said hearing shall be published in a newspaper of general circulation in the Town of Batavia. Written notice of said hearing shall also be mailed to the special use permit grantee by certified mail, return receipt requested, and by regular first-class mail directed to the last known address of the special use permit grantee.
§ 235-64 (Reserved) [1]
[1]
Editor's Note: Former § 235-64, Artichitectural Review Board, was repealed 2-19-2003.
§ 235-65 Penalties for offenses.
It shall be unlawful for any person, firm or corporation to construct, alter, repair, move, equip, use or occupy, or change the use of, any building, structure, or land or part thereof in a manner not permitted by this chapter or without the issuance of a valid zoning permit or certificate of compliance as required by this chapter.
It shall be further unlawful for any person to fail to comply with a written order of the Building Inspector within the time fixed for compliance therewith.
Appearance ticket. The Building Inspector may issue an appearance ticket to any person who fails to respond to a notice of violation and written order to correct the violation.
It shall be unlawful for any owner, builder, architect, tenant, contractor, subcontractor, construction superintendent or their agents, or for any person taking part or assisting in the construction, alteration, repair or use of any building, structure or land, to violate any of the applicable provisions of this chapter or any lawful order, notice, directive, permit or certificates issued or made hereunder.
Any violation of this section and/or this chapter shall be deemed an offense punishable by a fine and/or imprisonment as set forth in § 268 of New York State Town Law. Each and every week such violation continues shall be deemed a separate and distinct violation.
The Building Inspector may engage the Town Attorney or any other attorney approved by the Town Board to initiate legal action to enforce the provisions of this chapter.
In addition to the foregoing remedies, the Town of Batavia and/or its appropriate officials and authorities may maintain an action for injunction to restrain, correct or abate any violation of this chapter and/or maintain an action at law for damages sustained as a result of any violation of this chapter and/or seek any other remedy permitted by law, including Town Law § 268. Damages may include, but not be limited to, the legal fees and court costs expended or incurred by the town as a result of any legal proceedings brought hereunder.
§ 235-66 Complaint of violation.
Whenever a violation of this chapter occurs, any person may file a complaint in regard thereto. All such complaints must be in writing, signed, and shall be filed with the Building Inspector, who shall properly record such complaint, investigate it and take appropriate action in a timely manner.
§ 235-67 Environmental quality review.
The State Environmental Quality Review Act (SEQR) requires that local governments examine the environmental impact of all actions they permit, fund, or construct. Article 8 and Part 617 of Title 6 of the New York Code of Rules and Regulations (8 NYCRR 617) set forth the SEQR regulations in detail and should be reviewed for compliance prior to undertaking any of the above-mentioned activities.
As set forth in 8 NYCRR 617, determination of lead agency status is one of the initial steps in the SEQR process. When the Town is designated lead agency for a particular zoning action, the following Boards (agencies) may typically be the lead agency for the actions identified as follows:
The SEQR process may extend the various procedural time limits set forth throughout this chapter. For those actions taken under this chapter subject to SEQR, all time frames and deadlines otherwise set forth in this chapter may be delayed until a determination of significance has been made and, if required, a draft environmental impact statement has been filed.