Brookhaven City Zoning Code
Article
VII Town Board Amendments
§ 85-80 General procedures.
A.
The Town Board may, from time to time on its own motion, on recommendation of the Department of Planning, Environment and Land Management or on application, amend, change, supplement, modify or repeal the regulations, restrictions, district boundaries and provisions of this chapter, including the Zoning Map, after public notice and hearing.
B.
All applications for change of zones (hereafter referred to as "the application"), including those applications previously submitted and pending prior to the effective date of the enactment of this section, shall be referred to the Department of Planning, Environment and Land Management for a written report thereon, which sets forth the application's compatibility with the Town's land use plans and goals and surrounding land uses and zoning. The Town Board may:
C.
All applications for special use permit, variances (as required by Article VI), amendments to restrictive covenants and interpretations shall be referred to the Department of Law and the Department of Planning, Environment and Land Management for a written report thereon, which sets forth the application's compatibility with the Town's land use plans and goals and surrounding land uses and zoning.
D.
The Town Clerk shall notify the applicant of the Town Board's determination. Should the Town Board elect to deny the application by resolution or consider the application further, the Town Clerk shall notify the applicant of the Town Board's determination and shall fix the time and place of a public hearing on the proposed amendment or change and cause notice to be given in accordance with the provisions of Town Law.
§ 85-81 Application requirements.
[Amended 10-1-2020 by L.L. No. 10-2020, effective 10-14-2020; 6-30-2022 by L.L. No. 7-2022, effective 7-12-2022; 2-22-2024 by L.L. No. 4-2024, effective 2-27-2024]
A.
An application in the form approved by the Town Board, requesting a change of zone classification or special permits (hereafter referred to as "the application") shall be addressed to the Town Board, in addition to the following information, and subject to any other requirements as deemed necessary by the Board, which shall be submitted with the application and shall be filed with the Town Clerk:
(1)
An original complete and fully executed application.
(2)
A metes and bounds description of the boundaries of the property affected by the application; and the district, section, block and lot numbers for the subject property. In the event that the applicant/owner has an interest in any contiguous property, the metes and bounds description of such property; the district, section, block and lot numbers for the contiguous property, as well as the acreage of any contiguous property owned by the applicant/owner.
(3)
A conceptual plan signed and sealed by a professional licensed in the State of New York that includes a metes and bounds description of the boundaries of the property affected by the application; the approximate quantity, nature and location of proposed land uses; conformance with Town Code development standards; the proposed principal means of access to the site and major elements of the on-site circulation system; water supply and wastewater disposal; and such other information as would assist the reviewer at this conceptual review stage. A site plan may be submitted in lieu of a conceptual plan; however, said site plan must include all the information required in the conceptual plan.
(4)
A four-inch-by-four-inch diagram to be approved by the Department of Planning, Environment and Land Management, prepared by a registered professional engineer or registered land surveyor, indicating the location of the property which is the subject of the application with respect to the nearest intersecting street. The total acreage of the site shall be indicated on said diagram, as well as the district, section, block and lot numbers of the property. The following information is to be contained within the four-inch-by-four-inch diagram: hamlet name, the school district name and number, the application name, the existing zoning and the requested change of zone classification, special permit(s) and/or special permit waivers. If special permit waivers are sought, the diagram must state, "...and special permit waivers." The specific list of the waivers sought need not be included in the diagram.
(5)
A Town of Brookhaven Zoning Map in which the property which is the subject of the application is located. Such maps shall show the outline of the property which is the subject of the application.
(6)
A completed original Town of Brookhaven long environmental assessment form.
(7)
A title certification (which includes ownership verification and deed restrictions) prepared by a title company licensed to do business in the State of New York covering the subject premises and all contiguous property owned by the applicant/owner, or which the applicant/owner has an interest in, dated within three months of the date of the filing of the application documents. The title search must also contain a recorded copy of all deed restrictions referred therein. If no deed restrictions exist, the title certification must clearly so state. The title certification must also certify to the Town of Brookhaven that a twenty-year search was conducted within the Office of the Suffolk County Clerk.
(8)
A copy of the two notices to be sent to property owners as required under § 85-85 of this article.
(9)
All return receipt cards, except that such return receipt cards may be filed within 45 days after the filing of the application. (See § 85-85.)
(10)
An original sworn statement from the petitioner or his representative stating that notices have been sent by either certified or registered mail to adjacent property owners as required by this section. Said statement must contain the application name as set forth in the land use application, and shall be filed with the Town Clerk's office within 10 days of mailing the notices required herein.
(11)
The filing fee.
(12)
All certificates of occupancy, certificates of compliance, certificates of existing use and/or certificates of zoning compliance for all existing structures for all properties, which are subject to the application.
(13)
A recorded copy of the deed for all properties which are subject to the application.
(14)
The Town Assessor certified radius map, containing the names and addresses of the owners located within 500 feet of the perimeter of the properties, which are subject to the application, including the perimeter of all contiguous properties owned by the applicant/owner, or which the applicant/owner has an interest in to whom notices are to be sent.
B.
An application, in the form approved by the Town Board, requesting an amendment of restrictive covenant (hereafter referred to as "the application"), shall be addressed to the Town Board, in addition to the following information, and any other requirements as determined by the Town Board which shall be submitted with the application, shall be filed with the Town Clerk:
(1)
A complete original fully executed application.
(2)
A metes and bounds description of the boundaries of the property affected by the application; and the district, section, block and lot numbers for the subject property. In the event that the applicant/owner has an interest in any contiguous property, the metes and bounds description of such property; the district, section, block and lot numbers for the contiguous property, as well as the acreage of any contiguous property owned by the applicant/owner.
(3)
A survey, prepared by a registered professional engineer or a registered land surveyor, giving an exact description and location of the property with all existing and proposed structures and setbacks from all property lines. The survey must be signed and sealed by the engineer or land surveyor.
(4)
The Town Assessor certified radius map containing the names and addresses of the owners located within 500 feet of the perimeter of the properties, which is subject to the application, including the perimeter of all contiguous properties owned by the applicant/owner, or which the applicant/owner has an interest in to whom notices are to be sent.
(5)
A Town of Brookhaven Zoning Map in which the property which is the subject of the application is located. Such maps shall show the outline of the property which is the subject of the application.
(6)
A four-inch-by-four-inch diagram to be approved by the Department of Planning, Environment and Land Management, prepared by a registered professional engineer or registered land surveyor, indicating the location of the property which is the subject of the application with respect to the nearest intersecting street. The total acreage of the site shall be indicated on said diagram, as well as the district, section, block and lot numbers of the property. The following information is to be contained within the four-inch-by-four-inch diagram: hamlet name, the school district name and number, the application name, the existing zoning and the request for amendment of restrictive covenant.
(8)
All return receipt cards, except that such return receipt cards may be filed within 45 days after the filing of the application. (See § 85-85.)
(9)
An original sworn statement from the petitioner or his representative stating that notices have been sent by either certified or registered mail to adjacent property owners as required by this section. Said statement must contain the application name as set forth in the land use application, and shall be filed with the Town Clerk's office within 10 days of mailing the notices required herein.
(10)
A completed original Town of Brookhaven long environmental assessment form.
(11)
A title certification (which includes ownership verification and deed restrictions, i.e., covenants and restrictions and/or easements), prepared by a title company licensed to do business in the State of New York covering the subject premises and all contiguous property owned by the applicant/owner, or which the applicant/owner has an interest in, dated within three months of the date of the filing of the application documents. The title search must also contain a recorded copy of all deed restrictions referred therein. If no deed restrictions exist, the title certification must so state. The title certification must also certify to the Town of Brookhaven that a twenty-year search was conducted within the Office of the Suffolk County Clerk.
(12)
The filing fee.
(13)
All certificates of occupancy, certificates of compliance, certificates of existing use and/or certificates of zoning compliance for all existing structures for all properties, which are subject to the application.
(14)
A recorded copy of the deed for all properties which are subject to the application.
(15)
A conceptual plan, signed and sealed by a professional licensed in the State of New York, which includes a metes and bounds description of the boundaries of the property affected by the application, showing the proposed development. A site plan may be submitted in lieu of a conceptual plan; however, said site plan must include all the information required in the conceptual plan.
C.
No application shall be accepted or filed with respect to any property which has been the subject of a public hearing during the period 12 months immediately following such public hearing, unless such application sought to be filed shall have endorsed thereon the consent to the filing thereof of at least five members of the Town Board.
§ 85-82 Land use intensification mitigation fee.
A.
Purpose. With the goal of preservation and balanced growth, it is the intention of the Town Board to mitigate any land use intensification associated with the approval of a change of zoning classification from a more restrictive use to a less restrictive use, through the acquisition of open space. The Town Board recognizes that there is now and will continue to be development within the Town, which may occur through the Town Board's discretionary approval of an application for change of zoning classification, and further, that to balance such land use intensification, the Town Board shall facilitate the acquisition of open space, for the protection of valuable environmental resources for the benefit of the Town residents, and to mitigate potential adverse impacts to the maximum extent possible.
B.
All approved applications for a change of zone classification from more restrictive zoning to less restrictive zoning shall be subject to a land use intensification mitigation fee.
C.
The increase in land use intensification shall be calculated as follows: land use intensification percentage of the less restrictive zone (proposed zoning) minus the land use intensification percentage of the more restrictive zone (current zoning). The schedule of increased percentage of land use intensification shall be as follows, listed from the most restrictive to least restrictive as designated by § 85-134 of this chapter:
[Amended 10-28-2014 by L.L. No. 24-2014, effective 11-4-2014; 3-23-2017 by L.L. No. 7-2017, effective 4-3-2017; 8-2-2018 by L.L. No. 15-2018, effective 8-13-2018]
0% | A Residence 10 | |
5% | A Residence 5 | |
10% | A Residence 2 | |
15% | A Residence 1 | |
20% | A Residence | |
25% | B Residence 1 | |
30% | B Residence | |
35% | C Residence | |
40% | D Residence | |
45% | Golf Course District | |
50% | Horse Farm Residence | |
50% | K Business | |
55% | J Business | |
60% | J Business 4 | |
65% | Planned Retirement Congregate Housing Community Residence | |
70% | NH-H Health Facility | |
70% | L Industrial 1 | |
70% | Pet Cemetery | |
80% | Commercial Recreation | |
85% | J Business 2 | |
90% | J Business 6 | |
90% | J Business 8 | |
90% | Marine Commercial | |
95% | L Industrial 4 | |
95% | J Business 5 | |
100% | L Industrial 2 |
D.
The land use intensification mitigation fee shall be calculated as follows: $750 per one-percent increase in land use intensification per acre or part thereof, in conformance with the percentages above.
[Amended 11-13-2014 by L.L. No. 30-2014, effective 11-25-2014]
(1)
No land use intensification mitigation fee shall be required for any change of zone application involving less than one acre of land.
(2)
At the discretion of the Town Board, the land use intensification mitigation fee may be waived or partially waived for:
(a)
Religious institutions, not-for-profit organizations and governmental uses, wherein such application or use clearly demonstrates or provides an inherent public benefit or service; or
(b)
Applications for change of zone classification which conform to an adopted community-based land use plan, where the Town Board on its own motion is implementing the change of zones recommended by said plan. Applications which conform to the 1996 Comprehensive Land Use Plan shall not be eligible for a waiver pursuant to this section.
(3)
Requests for a waiver or partial waiver pursuant to Subsection D(2) above shall be submitted no later than at the public hearing for the change of zone application. Any request for a waiver or partial waiver received after the granting of a change of zone application must conform to the application and voting requirements contained in §§ 85-83 and 85-84 respectively.
E.
The land use intensification mitigation fee shall be deposited in the Joseph Macchia Environmental Preservation Capital Reserve Fund.
F.
The required land use intensification mitigation fee shall be submitted prior to the effective date of the change of zone.
[Amended 8-2-2018 by L.L. No. 16-2018, effective 8-13-2018; 2-22-2024 by L.L. No. 4-2024, effective 2-27-2024]
§ 85-83 Amendment of restrictive covenants.
A.
The Town Board may, on its own motion or on application, amend, supplement, change, modify or repeal any covenant imposed on property by the Town Board.
B.
An application requesting an amendment of restrictive covenant shall be addressed to the Town Board, in accordance with the requirements set forth in this chapter, in addition to the following:
C.
The Town Board may amend a restrictive covenant without holding a public hearing only in those cases where the restrictive covenant has not been recorded in the Office of the Suffolk County Clerk and where the amendment is solely to correct a typographical or scrivener's error. Proof of said error must be supported by substantial evidence contained in the Town Board's minutes. It shall be the applicant's burden to submit such proof to the Town Board.
D.
No application shall be accepted or filed with respect to any property which has been the subject of a public hearing during the period 12 months immediately following such public hearing, unless such application sought to be filed shall have endorsed thereon the consent to the filing thereof of at least five members of the Town Board.
§ 85-84 Vote on amendments to restrictive covenant.
A.
Intent. Pursuant to the Municipal Home Rule Law, the Town Board hereby determines that § 63 of New York State Town Law shall be superseded to the extent that a three-fourths majority vote of the entire membership of the Town Board shall be required to amend a restrictive covenant heretofore imposed by the Town Board as a condition of approval.
B.
Any such amendment to a restrictive covenant shall not be approved except upon the favorable vote of at least 3/4 of the members of the Town Board.
§ 85-85 Notice required.
[Amended 6-30-2022 by L.L. No. 7-2022, effective 7-12-2022; 2-22-2024 by L.L. No. 4-2024, effective 2-27-2024]
A.
The Town Board shall fix the time and place of a public hearing thereon and cause notice to be given in accordance with the provisions of § 264 of the Town Law. The applicant shall provide the following notice requirements: a notice containing the following information must be sent by either certified or registered mail, return receipt requested, to every property owner immediately adjacent and directly opposite thereto for a distance of 500 feet from the perimeter of the subject property. Additionally, such notice shall be mailed to the school district, fire and ambulance districts in which property is located and the Suffolk County Water Authority. Such notices shall be mailed within 10 days after the application has been filed with the Town Clerk and a second notice at least 10 days prior to the public hearing. Proof of such mailing shall be given to the Town Clerk at or prior to the public hearing. In the event that the applicant owns or has an interest in property contiguous to the subject property, such distance shall be measured from the perimeter of such contiguous property. For the purpose of this section, the word "owner" or "property owner" means the owner as shown on the current Brookhaven Town assessment roll. Said notice shall contain the following information:
(1)
The current zoning, relief requested (i.e., change of zoning classification, amendment of restrictive covenant, special permit and/or special permit waivers), including a description of the nature of the proposed request to the Town Board.
(2)
A metes and bounds description of the property which is the subject of the application.
(3)
A statement as to which side of any street in the Town of Brookhaven the property is located on and the distance and direction from the nearest intersecting street. If the property is located at the intersection of two or more streets, the notice shall state on which corner the property affected by the application is located.
(4)
A statement that a more detailed diagram of the property which is the subject of the application is on file at the office of the Town Clerk and may be examined during regular office hours and by any interested person.
(5)
A statement that all persons interested in the proposal shall be notified of the date fixed by the Town Board for a public hearing in the matter, provided that they file a written request for such notice with the Town Clerk, Town of Brookhaven, One Independence Hill, Farmingville, New York 11738.
B.
A poster to be obtained from the Town Clerk must be conspicuously posted every 200 feet along the entire length of each street frontage of the subject property at least 10 days prior to the date set for the public hearing before the Town Board.
(1)
An affidavit of posting shall be submitted to the Town Clerk by the applicant on or before the date set for the public hearing.
(2)
Said poster must remain in place until the public hearing has been completed and must be removed no later than seven days thereafter. The applicant or applicant's agent shall verify that said poster is still in place on a daily basis and shall promptly replace said poster should it be removed or defaced.
(3)
The Town Board may set a fee to cover the cost of said poster.
C.
The notice of public hearing before the Town Board published by the Town Clerk shall contain the following:
(1)
The name of the applicant.
(2)
The existing zoning and the proposal before the Town Board.
(3)
A statement that a public hearing on the proposal will be held at a specified time, date and place.
(4)
The Suffolk County Tax Map Number of the subject property.
(5)
The distance and direction of the subject property from the nearest intersecting street or, if said property is located at an intersection, the corner on which said property is located.
(6)
The school district in which the subject property is located.
(8)
A statement that a more detailed diagram of the subject property is on file at the office of the Town Clerk and may be examined during regular office hours by any interested person.
(9)
A statement that any interested person will be given the opportunity to be heard at the public hearing.
D.
Renotification required. In the event that the public hearing is to be held more than one year after the date of submission of the application, the applicant shall submit a new list of the names and addresses of all owners of property as shown on the current Brookhaven Town assessment roll within 500 feet of the perimeter of the property and shall notify the same as described in Subsection A above.
§ 85-86 Town Board determination.
[Amended 8-12-2014 by L.L. No. 18-2014, effective 8-26-2014; 6-30-2022 by L.L. No. 7-2022, effective 7-12-2022; 2-22-2024 by L.L. No. 4-2024, effective 2-27-2024]
A.
Whenever the Town Board, as a condition for the granting of an application, requires a restrictive covenant to be imposed upon the subject property, the following shall be filed with the Town Clerk:
(1)
An original signed and notarized declaration of covenants.
(2)
A certified survey prepared by a registered land surveyor showing by courses and distances the subject property which is the subject of the restrictive covenant. Said survey shall be dated within one year of the date of submission.
(3)
A metes and bounds description of the boundaries of the property affected by the restrictive covenants and the district, section, block and lot numbers for the property.
(4)
Deed and a title certification prepared by a title company licensed to do business in the State of New York covering the subject premises and all contiguous property. Said title certification shall include ownership verification, mortgage(s), judgment(s) and lien(s) and be dated within six months of the date of submission. If no judgment(s)/lien(s) exist, the title certification must so state. The title certification must also certify to the Town of Brookhaven that a twenty-year search was conducted within the Office of the Suffolk County Clerk. If the certification is prepared by an abstract/agency company, a letter from the title company authorizing the agency/abstract company to issue the title certification on its behalf is required.
B.
Publication of approval. Whenever the Town Board grants an application for a change of zone or covenant amendment, and after all conditions of such Town Board approval have been met, the Town Clerk shall publish a notice of adoption of the application and shall set the date for the application to become effective, thereby causing the application to be in full force and effect.
C.
Inactivity.
(1)
Failure to meet all conditions of the Town Board resolution of adoption within two years from the date the applicant/owner was notified of the approval by the Town Clerk will cause the application to be deemed inactive, except as follows:
(a)
The Town Board may grant extensions of time to meet conditions, upon written request from the applicant/owner to the Town Clerk. The Town Board may grant a maximum of two extensions, not to exceed one year each. Said request must sufficiently demonstrate that:
[1]
The applicant is diligently pursuing all other required governmental permits or other approvals; and
[2]
The extension request is received in writing, with the required application fee as established by Town Board resolution, by the Town Clerk. All approved extensions shall become effective retroactive to the date of expiration of the grant, determination or decision of the Board.
[Amended 9-12-2024 by L.L. No. 16-2024, effective 9-23-2024]
(3)
Prior to a Town Board hearing to rescind the resolution of adoption, the Town Board may grant a request to reinstate the application upon written request from the applicant/owner, subject to the submission of a reinstatement filing fee, and subject to the requirements set forth in § 85-86C(1)(a).
(a)
Subsequent failure to meet all conditions of Town Board approval within two years from the date the applicant/owner was notified of the application reinstatement by the Town Clerk will cause the application to be deemed inactive, and no further extensions shall be permitted pursuant to § 85-86C(1)(a).
D.
Withdrawal of Town Board application.
(1)
An application for which the Town Board has not yet taken any action shall be deemed withdrawn in the following circumstances:
(a)
The applicant has failed to submit documents to the Town Clerk within six months of the date of a written request by the Department of Planning, Environmental and Land Management, the Office of the Town Attorney, or the Office of the Town Clerk. The documentation submitted to avoid withdrawal under this provision must evidence the applicant's action in response to requirements issued by the Department of Planning, Environmental and Land Management, the Office of the Town Attorney, or the Office of the Town Clerk, to the satisfaction of the reviewing department.
(b)
Upon written request of the applicant.
(2)
Inactive Town Board land use applications.
(a)
Land use applications submitted to the Town Clerk that remain incomplete, and/or for which the applicant initiates no activity for a period in excess of one year, may be deemed withdrawn, so long as written notice is provided to the applicant informing said applicant of the Town Clerk's intent to deem the application withdrawn at least 30 days prior to the Town Clerk's determination. If an application is inactive for more than two years, it shall be deemed withdrawn without further notice.
§ 85-87 Procedure on motion of Town Board.
Whenever the Town Board, on its own motion or upon recommendation of the Department of Planning, Environmental Protection, and Land Management, shall consider any change of zoning classification, the resolution setting a date for a public hearing shall contain a clause requiring that the owners of all property within the boundaries of the property proposed to be changed in zoning classification and all property owners immediately adjacent and directly opposite thereto for a distance of 500 feet from the perimeter of the property proposed to be changed in zoning classification be notified of the proposed change, except as hereinafter provided. Said notice shall be sent by either certified mail or registered mail, return receipt requested, to such owner at the address shown on the current Brookhaven Town assessment roll and shall be mailed to such owner at least 10 days prior to the public hearing. Said notice shall contain a description sufficient to identify the property which is proposed to be changed in zoning classification, together with information substantially similar to that required by § 85-85A of this chapter. In the following enumerated cases, the notice required by this section shall not be required:
A.
In the event that the area of the proposed change of zone represents 50% or more of the property contained within the bounds of a school district within the Town of Brookhaven.
B.
In the event that the area of the proposed change of zone exceeds 50 acres.
C.
In the event that the proposed changes are in conformance with the goals of a comprehensive land use plan.
D.
In all other cases where the Town Board of the Town of Brookhaven shall determine that the notice required by this article shall be dispensed with.
§ 85-88 Vote on amendments; amendments subject to written protest.
A.
Legislative intent. Pursuant to § 10 of the Municipal Home Rule Law and § 10 of the Statute of Local Governments, the Town Board of the Town of Brookhaven intends to supersede § 265 of the New York State Town Law (which provides in pertinent part: "Such amendment shall be effected by a simple majority vote of the town board, except that any such amendment shall require the approval of at least three-fourths of the members of the town board in the event such amendment is the subject of a written protest,. . ."), to the extent that any amendment to a zoning regulation, restriction or boundary, which is the subject of a written protest submitted to the Town Board in accordance with § 265 of the New York State Town Law, may be approved by majority-plus-one vote (five members) of the members of the Town Board. Notwithstanding the foregoing, the Town Board does not intend to supersede any general law or, specifically, § 239-m or 239-n of the General Municipal Law, with respect to any extraordinary vote that may be required pursuant to such laws.
B.
Majority-plus-one vote for amendments subject to written protests. Any amendment to a zoning regulation, restriction or boundary, which is the subject of a written protest presented to the Town Board in accordance with § 265 of the New York State Town Law, shall become effective upon the favorable vote of a majority-plus-one vote (five of the members) of the Town Board. This section shall not apply to an amendment(s) for which an extraordinary vote is required pursuant to any other general law or, specifically, § 239-m or 239-n of the General Municipal Law.
C.
Inconsistency. If any provisions of this section are inconsistent with the provisions of any other local law or act, the provisions of this article shall be controlling.
D.
Severability. If any provision of this section is held to be unconstitutional or otherwise invalid by any court of competent jurisdiction, the remaining provisions of this article shall remain in effect.
§ 85-89 Filing fee.
The filing fee shall be that as set forth by the Town Board of the Town of Brookhaven.
§ 85-90 through § 85-98. (Reserved) [1]
[1]
Editor's Note: Former § 85-90, Extension of time for implementation, was repealed 6-30-2022 by L.L. No. 7-2022, effective 7-12-2022.