Hamlin City Zoning Code
ARTICLE VII
Administrative Procedures
§ 520-58 Building Inspector.
A.
This chapter shall be administered by the Building Inspector of the Town of Hamlin, subject to the rules, regulations, resolutions and ordinances of the Town Board.
B.
The Building Inspector shall be appointed and may be removed by the Town Board and shall serve at the pleasure of the Town Board.
C.
It shall be the duty of said Building Inspector to secure the enforcement of this chapter and to issue all permits or certificates required by this chapter. The Building Inspector shall have charge of the building inspection of the Town of Hamlin. He or she shall employ such inspectors or other help as necessary, subject to the approval of the Town Board; he or she shall attend meetings of the Town Board and of the Zoning Board of Appeals and shall secure or cause to be secured all information necessary for the proper consideration of any question relating to the building work in the Town of Hamlin. The Building Inspector may not inspect his or her own property or that of his or her family members, nor shall he issue a building permit to himself or a family member.
§ 520-59 Building permits required.
No person, firm or corporation shall commence the construction, enlargement, alteration, improvement, conversion or change of any building or structure without first obtaining a building permit from the Building Inspector. The regulations regarding building permits are set forth in Chapter 220, Building Code Administration and Enforcement, of the Code of the Town of Hamlin.
§ 520-60 Compliance required.
[Amended 12-11-2006 by L.L. No. 11-2006]
No building or structure hereafter erected, structurally altered, reconstructed, changed or moved in the Town of Hamlin shall be so erected, altered, reconstructed, changed, moved or used except in strict conformity with this chapter. Buildings or structures erected, structurally altered, reconstructed, changed or moved prior to the effective date of this chapter, as amended, may continue such nonconformity until they are destroyed, structurally altered, reconstructed, changed or moved, but no such buildings or structures shall thereafter be structurally altered, reconstructed, changed or moved unless application shall be made to the Zoning Board of Appeals and a permit shall be issued by such Board, upon such terms and conditions as the Board may impose, permitting such buildings or structures to be structurally altered, reconstructed, changed or moved. In passing upon such application, the Board shall have the power to consider the original intended use of the building or structure; the adaptability of the particular building or structure to the structural alterations, reconstruction or changes contemplated; the conformity or lack of conformity of the proposed building or structure to the provisions of this chapter; the appropriate development of the particular lot or parcel of land; and such other facts as, in the judgment of the Board, may be necessary and proper in connection with such application. No land shall hereafter be used for any purpose or use except as herein provided. Land or building uses not specifically provided for herein are deemed to be and shall be prohibited.
§ 520-61 Retroactive permit fees.
[Added 2-7-1996 by L.L. No. 2-1996]
Any person who fails to obtain a required variance and/or building permit prior to undertaking a project will be charged a penalty fee as set by the Town Board. The penalty fee will be added to the cost of the permit or variance, payable when such permit or variance is issued.
§ 520-62 Certificates; fees.
A.
Certificates.
(1)
Certificate of occupancy. It shall be unlawful to use or to permit the use of any building or structure hereafter erected, materially altered or located until a certificate of occupancy, to the effect that the building, structure or premises so erected, materially altered or located conforms to the provisions of this chapter, shall have been endorsed by the Building Inspector. The Building Inspector shall issue such a certificate of occupancy, provided that the applicant therefor shows compliance with this chapter and the applicable laws of the State of New York.
(2)
Certificate of conformity. It shall be unlawful to use or permit the use of any building or structure hereafter erected, structurally altered, reconstructed, moved or converted wholly or partly in its use, or of any premises hereafter altered or converted wholly or partly in its use, until a certificate of conformity, to the effect that the building, structure or premises so erected, altered, reconstructed or moved and the proposed use thereof conform to the provisions of this chapter, shall have been issued by the Building Inspector.
B.
Fees. Fees shall be charged by the Building Inspector at the time of the issuance of a certificate of conformity or occupancy in accordance with the rates set by resolution of the Town Board from time to time.
§ 520-63 Notice to conform.
If, on any inspection, the condition of a building, structure or premises or its use or occupancy is found not to conform to the requirements of this chapter or to the conditions of an existing certificate therefor, the Building Inspector shall at once issue written notice to the owner specifying the manner in which the building, structure or premises or its use or occupancy fails to conform. The owner shall thereupon at once take steps to make said building, structure or premises conform as directed by the Building Inspector. If it is necessary for the proper protection of the occupants, the Town Board shall order said building, structure or premises vacated while it is being changed to conform to the requirements of this chapter. When the required changes have been completed, a new certificate of conformity shall be issued as provided in § 520-62.
§ 520-64 Planning Board organization, powers and duties.
A.
Pursuant to the provisions of § 271 and 272 of the New York State Town Law, there shall be within the Town of Hamlin a Planning Board consisting of seven members appointed by the Town Board, with each member serving a term of seven years. If a vacancy occurs on the Planning Board as the result of an expiration of a member's term, the Town Board shall fill the vacancy by appointment for a new seven-year term. If a vacancy occurs on the Board for any other reason, the Town Board shall fill the vacancy by appointment for the unexpired term.
B.
The Town Board shall, commencing on January 1, 2016, designate a member of the Planning Board to act as Chairperson thereof. For the purpose of initiating a Planning Board under this chapter, the normal continuance of the existing Planning Board is established. The Planning Board may adopt additional rules, regulations and procedural requirements with respect to any subject matter over which it has jurisdiction under this chapter or under the New York State Town Law, following a public hearing on such matters and subject to the approval of the Town Board, and provided that such rules, regulations or procedures conform to the general minimum requirements outlined in this chapter.
[Amended 11-25-2015 by L.L. No. 9-2015]
C.
The Planning Board shall have all power and authority designated to it in this chapter and shall exercise such power and authority in conformance with the provisions of the applicable sections of the New York State Town Law and the general procedural requirements outlined in this chapter, as amended by the Town Board.
D.
The Planning Board may:
(1)
Help to prepare and revise a Comprehensive Plan for the development of the entire area of the Town, and the Town Board shall file certified copies of the Comprehensive Plan in the offices of the Town Engineer and the Town Clerk (§ 272-a of the New York State Town Law).
[Amended 2-10-1997 by L.L. No. 1-1997]
(2)
Review and comment on all proposed zoning amendments as referred to the Board.
(3)
Render assistance to the Zoning Board of Appeals at its request.
(4)
Conduct research and report on any matter referred to it by the Town Board.
(5)
Conduct investigations and prepare maps, reports and recommendations relating to the planning and development of the Town, provided that the total expenditures of said Board shall not exceed the appropriation for its expenses (§ 271 of the New York State Town Law).
[Amended 8-2-2011 by L.L. No. 4-2011]
E.
The Town Board may by resolution authorize and empower the Planning Board to approve or disapprove changes in the lines of existing streets, highways or public areas shown on subdivision plats or maps filed in the County Clerk's office of the County of Monroe or the laying out, closing off or abandonment of streets, highways or public areas under the provisions of the Town and Highway Laws within that part of the Town outside the limits of any incorporated city or village (§ 271 of the New York State Town Law).
[Amended 8-2-2011 by L.L. No. 4-2011]
F.
The Planning Board shall have the authority to require the posting of a performance bond in an amount sufficient to cover the full cost of street improvements as estimated by the Board and/or Town Engineer, and the form, sufficiency and manner of execution of such bond shall be approved by the Town Board.
G.
Any person aggrieved by any decision of the Planning Board may apply to the New York State Supreme Court for review by a proceeding under Article 78 of the Civil Practice Law and Rules. Such proceedings shall be instituted within 30 days after the filing of a decision in the office of the Town Clerk.
§ 520-65 Site plan review.
A.
Site plan approval. The Town of Hamlin Planning Board, in accordance with the general provisions of § 274-a of the New York State Town Law, shall have the authority to review and approve site plans and general land development prior to the issuance of any building permits, subject to the provisions and restrictions of this chapter.
B.
Preapplication sketch conference.
(1)
At the time of application for a preliminary site plan approval, the applicant shall indicate whether or not an optional sketch plan conference with the Planning Board is desired. Such a sketch plan conference shall be conducted at a regularly scheduled meeting of the Planning Board but shall not be a public hearing. During the conference, the applicant and the Planning Board shall review and discuss the basic site design concept and generally determine the information to be required and provided on the preliminary site plan. No formal action shall be taken on the plan or application at the time of the sketch plan conference. At such a conference, the applicant should provide a statement and conceptual design sketch outlining what is proposed in addition to the information listed below:
(a)
The location of site with respect to existing and proposed rights-of-way and intersections.
(b)
All properties, subdivisions, streets and easements within 200 feet of the parcel.
(c)
All existing utilities in the area.
(d)
Internal street pattern, if any, of the proposed development.
(e)
Location of all existing structures on the site and future use of the same.
(f)
Existing zoning classification(s) of the property and all adjacent properties and any restrictions on land use of the site.
(g)
Existing natural features on the site and future use of the same.
(h)
A map of site topography at no more than five-foot contour intervals. If general site grades exceed 5% or portions of the site have susceptibility to erosion, flooding or ponding, a soils overlay and a topographic map showing contour intervals of not more than two feet of elevation should also be provided.
(2)
The Planning Board may, at this stage, suggest changes in the preapplication sketch involving street layout, traffic patterns, lot size or shape, preservation of natural features or other matters which, in its opinion, will improve the layout in keeping with the best interests of the Town.
(3)
The Planning Board shall be permitted a reasonable time to review the plan, but in no instance longer than 45 days after completion of all requirements, unless provided for elsewhere in this chapter.
C.
Application for preliminary site plan approval.
(1)
Any preliminary application for site plan approval shall be made in writing and shall be accompanied by any or all of the following information, as required by the Planning Board, prepared by a licensed engineer, architect, landscape architect or surveyor and certified by the seal and signature of such engineer, architect or surveyor. Plans for proposed developments consisting of five or more lots must be signed by a licensed professional engineer, licensed to practice engineering within the State of New York.
(a)
An area map showing that portion of the applicant's property under consideration, the applicant's entire adjacent holdings and all properties, subdivisions, streets and easements within 500 feet of the applicant's property.
(b)
Title of drawing, including name and address of the applicant and person responsible for preparation of such drawing.
(c)
North arrow, scale, original date and last revision date.
(d)
Boundaries of the property plotted to scale, including tax account numbers; dimensions of the site and total acreage.
(e)
Current zoning of the property and any proposed zoning changes.
(f)
Existing watercourses.
(g)
A grading and drainage plan showing existing and proposed contours and methods of on-site drainage and/or water retention.
(h)
The location, setbacks, dimensions and proposed use of all structures.
(i)
Floor plans and elevations for all buildings.
(j)
The location, design and traffic circulation patterns for all parking areas and truck delivery areas, showing ingress and egress points.
(k)
The location and size of all curb cuts.
(l)
Any provisions for pedestrian access and circulation, including sidewalks, handicapped parking areas and ramps, crosswalks, pavement markings, etc.
(m)
The location of any outdoor storage area; the location of any outdoor fencing, including size, height and type of construction.
(n)
The location, design and construction materials of all existing or proposed site improvements, such as drains, culverts, retaining walls, outdoor storage tanks, air-conditioning units and waste disposal units, etc.
(o)
A description of the method of securing public water and the location, design and construction materials for such facilities.
(p)
A description of the method of sewage and stormwater disposal and the location, design and construction materials of such facilities.
(q)
The location of fire lanes and other emergency zones, including the location of all fire hydrants, existing and proposed.
(r)
The location, size, design and construction materials of all proposed signs.
(s)
The location, design and construction materials of all energy distribution facilities, including electrical, gas and solar energy; provisions for solar energy use, energy conservation or other environmental design techniques.
(t)
The location and proposed development of all buffer areas, including existing and proposed vegetative cover.
(u)
The location and design of outdoor lighting facilities.
(v)
A designation of the amount of building area to be used for retail sales or similar commercial activity. An estimate of the maximum number of employees to be on the site at any one time.
(w)
A general landscaping plan and planting schedule, including the location and types of trees and shrubbery to be planted, and a tracing overlay showing soil types and classifications and their susceptibility to erosion and flooding.
(x)
Any other elements integral to the proposed development as considered necessary by the Planning Board, including identification of any zoning variances to be secured from the Zoning Board of Appeals and any other county or state permits required prior to final project approval.
(2)
The Building Inspector shall have the authority to require any or all of the above site design elements or other information on a site plan submitted for review and/or approval to the Planning Board.
(3)
Letter of intent.
(a)
A letter of intent, prepared by the applicant or his designated representative or agent, shall accompany the preliminary site plan application and shall include a statement outlining the proposed project, the owner of the property and any proposed buildings, the project builder or contractor, if known, a proposed construction schedule, the principals involved in the financing of the project and any other information deemed necessary by the Building Inspector.
(b)
Such additional information may include data on the nature and legal status of existing or proposed easements, a description of all deed restrictions or covenants applicable to the property, etc.
(4)
Required fees. Fees shall be paid to the Town Clerk upon the filing of an application. Such fees shall be as established by the Town Board and are not refundable.
D.
Planning Board review of preliminary site plan.
(1)
The Planning Board's review of a preliminary site plan shall include, but is not limited to, the following considerations:
(a)
Adequacy and arrangement of vehicular and pedestrian traffic, access and circulation, including separation of pedestrian from vehicular traffic, walkway structures, control of intersections with vehicular traffic, road widths and traffic control structures, intersections, and provisions for pedestrian convenience. Consideration shall be given to facilities to assist handicapped persons using the facility.
(b)
Location, arrangement, size and design of buildings, lighting and signs. As much as is possible, consideration should be given to noise sources, privacy, prevailing wind directions and seasonal sun movements when locating structures, patios and open spaces on parcels, exhaust fans and outdoor waste disposal locations.
(c)
Adequacy, type and arrangement of trees, shrubs and other landscaping constituting a visual and/or noise-deterring buffer between these and adjoining lands.
(d)
In the case of an apartment house or multiple dwelling, the adequacy of usable open space for playgrounds and informal recreation.
(e)
Adequacy of stormwater and drainage facilities.
(f)
Adequacy of water supply and sewage disposal facilities.
(g)
Adequacy of fire lanes or other emergency zones, and provisions for fire hydrants.
(h)
Provisions for snow storage and/or removal.
(i)
Protection of solar access on adjacent or neighboring properties.
(j)
Protection of adjacent properties and the general public against noise, glare and unsightliness or other objectionable features.
(k)
Adequacy of structures, roadways and landscaping in areas with moderate to high susceptibility to flooding and ponding and/or erosion.
(l)
Proposed grading of the site.
(m)
Any unique environmental problems associated with development of the particular site, including but not limited to erosion control, soil types, drainage considerations, removal of existing vegetation, destruction of wildlife habitats, or any other environmental impacts and the means by which the applicant will deal with these problems.
(n)
The general visual and aesthetic aspects of the project as they relate to the overall project design and concept.
(o)
Conformity of the basic site design to generally accepted planning, engineering and design standards and criteria.
(q)
General project conformance with all applicable requirements of this chapter and the number and nature of any variances required.
(r)
Relationship of the proposed use to the existing land use and zoning patterns in the area.
(2)
In addition to the site plan review criteria outlined above, the Planning Board should examine the following site design considerations when reviewing development proposals along Lake Ontario and Sandy Creek:
(a)
Relationship of the proposed use to water depth and existing natural features.
(b)
Setbacks from the mean high-water mark.
(c)
Architectural and aesthetic considerations.
(d)
Standards for boating facilities (docks, pier, slips and catwalk dimensions), as recommended by the National Association of Engine and Boat Manufacturers, Inc.
(e)
Structures for shoreline protection.
(3)
The Planning Board shall have no authority to act on or approve variances from this chapter, with the exception of applications under § 278 of Town Law. However, any Planning Board approval of a site plan application must be made contingent on the applicant obtaining all necessary variances from the Town Zoning Board of Appeals and/or other applicable permits.[3]
(4)
Consultants and engineer's reviews. The Town Building Inspector shall be responsible for referring, as necessary, any development project to the various departments or agencies, prior to any final action being taken by the Planning Board on the application. The Town Building Inspector shall also be responsible for referring certain site development plans to the Monroe County Department of Planning for an advisory review and report, in accordance with the provisions of § 239-m of the General Municipal Law, prior to any final action being taken on the application by the Planning Board.[4]
(5)
Public hearings. The Planning Board shall conduct a public hearing on the proposed preliminary site plan. Such a public hearing shall be conducted within 62 days of the date of receipt of the application for preliminary site plan approval and shall be advertised in a newspaper of general circulation in the Town at least five days prior to the public hearing. The Clerk to the Planning Board shall be responsible for notifying by mail all property owners within 500 feet of the property involved in the preliminary application of the time, date and place of said public hearing, at least five days prior to such meeting.
[Amended 3-4-1992 by L.L. No. 2-1992[5]]
E.
Planning Board action on preliminary site plan.
(1)
Within 62 days of the receipt of an application for preliminary site plan approval, the Planning Board shall act on it. If no decision to disapprove such an application is made, and upon completion of all requirements to be met, the preliminary site plan shall be considered approved. The time limit for action on the preliminary site plan may be extended by mutual consent or agreement of the Planning Board and the applicant. The Planning Board's action shall be in the form of a written statement to the applicant stating whether or not the preliminary site plan is approved, disapproved or approved with conditions. The Planning Board may incorporate a statement of findings into the decision and must clearly state the reasons for the action being taken.[6]
(2)
The Planning Board's decision shall refer to a specific site plan drawing by date and number and may include recommendation of desirable modifications to be incorporated into the final site plan. Conformance with said modifications shall be considered a condition of project approval. If the preliminary site plan is disapproved, the Planning Board's decision shall clearly state the reasons for such denial. In such a case, the Planning Board may recommend further study of the site plan and resubmission to the Board after it has been revised or redesigned.
(3)
No modification of existing stream channels, filling of lands with a moderate to high susceptibility to flooding, grading or removal of vegetation in areas with a moderate to high susceptibility to erosion, or excavation for the construction of site improvements shall begin until the developer has received preliminary site plan approval. Failure to comply shall be construed as a violation of this chapter, and where necessary, final site plan approval may require the modification or removal of unapproved site improvements.
F.
Application for final site plan approval.
(1)
After receiving preliminary approval, with or without modifications, from the Planning Board on a preliminary site plan, and approval for all necessary permits and curb cuts from state and county officials, the applicant may prepare a final detailed site plan and submit it to the Planning Board for approval. If more than 12 months has elapsed since the time of the Planning Board's action on the preliminary site plan and if the Planning Board finds that conditions may have changed significantly in the interim, the Planning Board may require a resubmission of the preliminary site plan and an additional public hearing for further review and possible revision prior to accepting the proposed final site plan for review.
(2)
The final detailed site plan shall conform substantially to the preliminary site plan that has received preliminary site plan approval. It shall incorporate any revisions or other features that may have been recommended by the Planning Board at the preliminary review. In addition to that provided elsewhere in this chapter, the Planning Board may require a letter of credit, bond or maintenance bond for any facility or improvement that is indicated as part of the plan, such as parking areas and buffer and screen devices. All such compliance shall be clearly indicated by the applicant on the appropriate submission.
(3)
In addition to final detailed site plans, the following additional information shall accompany an application for final site plan approval:
(a)
A record of application for and approval status of all necessary permits or variances from Town, county and state departments or agencies.
(b)
Any other information or data deemed necessary by the Town Building Inspector and/or Planning Board.
(c)
The proposed construction schedule and/or phasing of the project and its relation to project design.
(4)
There shall be no additional fee required for review of an application for final site plan approval. Such review shall take place at a regularly scheduled meeting of the Planning Board but shall not require a public hearing.
(5)
If the final detailed site plan is substantially different from the approved preliminary plan, then the applicant shall present any modifications to the Planning Board as a preliminary site plan in accordance with the procedures found in this section. The Planning Board shall then determine whether or not the modified plan is still in keeping with the intent of the Board resolution which approved the preliminary site plan. If a negative decision is reached, the site plan shall be considered as disapproved.
G.
Planning Board action on final site plan.
(1)
The Planning Board may approve an application for site plan review when, based on the information presented at a public hearing, it has determined that the project will generally satisfy the conditions and criteria listed above. The Planning Board may place reasonable restrictions or stipulations on such applications in order to ensure that the project adequately meets the requirements, conditions or criteria listed above.
(2)
Within 62 days of receipt of the application for final site plan approval, the Planning Board shall render a decision to the Town Building Inspector. If no decision is made within the sixty-two-day period, and upon completion of requirements to be met, the final site plan shall be considered approved. However, the time period may be extended by mutual consent of the Planning Board and the applicant. The Planning Board's decision shall clearly refer to a specific site plan by drawing number and date.[7]
(3)
Upon submission of the final site plan and payment by the applicant of all fees and reimbursable costs due to the Town, the final site plan shall be signed by the Town Engineer, Highway Superintendent, Building Inspector, Fire Marshal and Attorney, respectively. Upon the Attorney signing the final site plan, the Planning Board shall endorse its approval on the final site plan. Planning Board final approval shall expire one year from the date granted. Any necessary easements to the Town of Hamlin must be received and approved by the Town Attorney before the Town Attorney will sign the final site plan The Town Engineer will give written notice to the Town Attorney, who will subsequently give written notice to the Town Clerk and the Building Inspector, that easements are necessary. All easements must be filed in the Monroe County Clerk's office by the applicant and returned to the Town Clerk before a building permit will be issued. Upon disapproval of a final site plan, the Planning Board shall so inform the Building Inspector, and the Building Inspector shall deny a building permit to the applicant. The Planning Board shall also notify the applicant, in writing, of its decision and its reasons for disapproval or approval. Planning Board approval of a final site plan shall expire after one year from the date of such decision unless a building permit has been taken out within such time period for work indicated on the final site plan. An application for preliminary or final site plan approval that has been denied by the Planning Board may not be resubmitted to the Board for a period of one year from the date of such decision unless such plan has been changed or revised to reflect the concerns and recommendations of the Planning Board indicated in its notice of denial.
[Amended 11-4-1992 by L.L. No. 10-1992; 2-13-1995 by L.L. No. 2-1995]
(4)
In taking action on applications for final site plan approval, the Planning Board shall ensure that, to the maximum extent possible, the minimum requirements of this chapter have been met or that appropriate variances have been granted by the Town Zoning Board of Appeals. The Planning Board may impose additional restrictions or conditions on applications for final site plan approval beyond the general requirements of this chapter, but within its given scope and authority, if it determines that such restrictions or conditions are necessary to ensure project conformance with generally accepted planning, engineering and design standards and criteria, are necessary to minimize the project's adverse impact on adjacent land uses and other physical and environmental features or are directly related to the health, safety or general welfare of the community. Such additional restrictions or conditions shall be in the form of a resolution of approval to be signed by the applicant as a condition of final site plan approval. Final site plan approval cannot be granted for any project until all necessary variances from the Town Zoning Board of Appeals have been granted and/or any approvals from the Town Board have been granted and a review or referral has been received concerning the project from the Monroe County Planning Department in accordance with the provisions of § 239-m of the General Municipal Law.[8]
(5)
The Planning Board shall take one of the following actions on site plan reviews:
(a)
Preliminary approval. The application is given preliminary site plan approval as presented.
(b)
Preliminary approval with modifications. The application is given preliminary site plan approval subject to certain modifications being made in the plan that will be shown on the final site plan.
(c)
Disapproval. The application for site plan approval is denied based upon reasons stated in the decision.
(d)
Disapproval without prejudice. The application for site plan approval is denied based upon reasons stated in the decision. However, the Planning Board may reconsider the application if substantial changes are made in the site plan design or overall project concept. A new application fee for the Planning Board is required and an additional public hearing is required if and when the new plans are submitted.
(e)
Final approval. The application is given final site plan approval as presented.
(f)
Final approval with modifications or conditions. The application is given final site plan approval subject to certain modifications or conditions contained in the decision or resolution of approval to be signed by the applicant.
(g)
Reserved decision. Further action on an application for site plan approval is postponed pending receipt of additional information or data.
(h)
Tabled. Preliminary site plan hearing is postponed pending receipt of additional information, appearance of applicant or a representative, etc.
(i)
Recommendation for denial. Town Board rezoning referral or application for site plan review is given a recommendation of denial, with reasons, for further action by the Town Board.
H.
Reimbursable costs. Costs incurred by the Planning Board for consultation fees or other extraordinary expenses in connection with the review of a proposed site plan, that are over and above the basic application fee, shall be charged to the applicant at a rate as established by the Town Board.
I.
Integration of site plan review. Whenever the particular circumstances of a proposed development require compliance with either special use permit procedures as found in this chapter, or requirements of the Town's land subdivision regulations or local SEQR regulations, then the Planning Board and Town Building Inspector shall attempt to integrate, where possible, site plan review as required by this section with the procedural and submission requirements for such other compliance.
J.
Special provisions regarding modification of site plans for commercial use.
[Added 7-9-2018 by L.L. No. 4-2018]
(1)
Administrative approval of certain changes in use.
(a)
With respect to a use permitted by site plan approval in a commercial use district, site plan approval is not required for a change of a previously approved use within a previously approved building or structure provided that there is no change in required parking, site drainage, access, lot coverage, or exterior alteration of the building or structure, and further provided that the proposed new use is also a use permitted subject to site plan approval. Upon a determination by the Building Inspector that the proposed new use meets all such requirements for exemption from the requirements for site plan approval, the Building Inspector shall file a statement setting forth the date of approval of such change in use with the original approved site plan, and may issue a certificate of occupancy for the new use.
(2)
Possible waiver of site plan review by the Planning Board.
(a)
All applications for a change of use or for other modifications to a previously approved site plan for a commercial use which do not meet the requirements for administrative approval pursuant to Subsection J(1) hereof require site plan review by the Planning Board. Notwithstanding the foregoing, upon a finding by the Planning Board following its initial review of the application that, because of the particular character or limited nature of the change in use or modification of site improvements, the submission of a site plan, or of particular portions of the information typically required as part of a site plan, is inappropriate or unnecessary, the Planning Board may vary or waive the requirements for site plan review. The decision to vary or waive the requirements for site plan review shall be incorporated in a resolution setting forth the reasons supporting the decision. When granting a full or partial waiver from the requirements for site plan review the Planning Board may impose additional conditions it deems appropriate or necessary with respect to modification of the site plan. A statement setting forth the date such waiver was granted and the decision to permit the modification requested shall be filed with the previously approved site plan.
§ 520-66 Plats.
A.
Plat approval authority. For the purpose of providing for the future growth and development of the Town of Hamlin and affording adequate facilities for the housing, transportation, distribution, comfort, convenience, safety, health and welfare of its population, by resolution of the Town Board, the Planning Board is authorized to approve plats showing lots, blocks or sites, with or without streets or highways. For the same purposes and under the same conditions, the Planning Board shall approve the development of plats already filed in the office of the County Clerk if such plats are entirely or partially undeveloped. The term "undeveloped" shall mean those plats where 20% or more of the lots within the plat are unimproved unless existing conditions, such as poor drainage, have prevented their development. The Planning Board may recommend for adoption by the Town Board such rules and regulations as it deems necessary, consistent with the provisions of this chapter, to approve such plats.
[Amended 8-2-2011 by L.L. No. 4-2011]
B.
Submission of plats to Planning Board.
(1)
All plats shall be submitted to the Planning Board for approval in final form; provided, however, that where the Planning Board has been authorized to approve preliminary plats, the owner may submit, or the Planning Board may require that he or she submit, a preliminary plat for consideration. Such a preliminary plat shall be clearly marked "preliminary plat" and shall conform to the definition provided in § 276, Subdivision 4, of the Town Law. The Planning Board shall comply with the provisions of the State Environmental Quality Review Act under Article 8 of the Environmental Conservation Law and its implementing regulations. The Planning Board shall hold a public hearing and act on the preliminary plat in accordance with § 276 of the Town Law.
[Amended 8-2-2011 by L.L. No. 4-2011]
(2)
Notwithstanding the foregoing provisions, the time in which the Planning Board must take action on such plat may be extended by mutual consent of the owner and the Planning Board. When so approving a preliminary plat, the Planning Board shall state, in writing, the modifications, if any, it deems necessary for submission of the plat in final form. Within five days of the approval of such preliminary plat, it shall be certified by the Town Clerk as granted preliminary approval and a copy filed in the Town Clerk's office and a certified copy mailed to the owner. Within six months of the approval of the preliminary plat, the owner must submit the plat in final form. If such plat is not so submitted, approval of the preliminary plat may be revoked by the Planning Board. In the event that the Planning Board fails to take action on a preliminary plat within the time prescribed therefor, such plat shall be deemed granted preliminary approval. The certificate of the Town Clerk as to the date of submission and the failure to take action within such prescribed time shall be issued on demand and shall be sufficient in lieu of written endorsement or other evidence of approval herein required.
C.
Hearing on final plat.
(1)
When a final plat is submitted which the Planning Board deems to be in substantial agreement with a preliminary plat approved pursuant to this section, the Planning Board shall by resolution conditionally approve with or without modification, disapprove, or grant final approval and authorize the signing of such plat within 62 days of its receipt by the Clerk of the Planning Board. When a final plat is submitted which the Planning Board deems not to be in substantial agreement with a preliminary plat approved pursuant to this section, or when no preliminary plat is required to be submitted and a final plat clearly marked "final plat" is submitted conforming to the definition provided by § 276, Subdivision 4, of the Town Law, the Planning Board shall proceed in accordance with § 276 of the Town Law.
[Amended 8-2-2011 by L.L. No. 4-2011]
(2)
Notwithstanding the foregoing provisions, the time in which the Planning Board must take action on such plat may be extended by mutual consent of the owner and the Planning Board. In the event that the Planning Board fails to take action on a final plat within the time prescribed therefor, the plat shall be deemed approved and a certificate of the Town Clerk as to the date of submission and the failure to take action within such prescribed time shall be issued on demand and shall be sufficient in lieu of written endorsement or other evidence of approval herein required. Upon resolution of conditional approval of such final plat, the Planning Board shall empower a duly authorized officer to sign the plat subject to completion of such requirements as may be stated in the resolution. Within five days of such resolution, the plat shall be certified by the Town Clerk as conditionally approved and a copy filed in his or her office and a certified copy mailed to the owner, including a certified statement of such requirements which, when completed, will authorize the signing of the conditionally approved final plat. Upon completion of such requirements, the plat shall be signed by said duly authorized officer of the Planning Board. Conditional approval of a final plat shall expire within 180 days after the date of the resolution granting conditional approval unless such requirements have been certified as completed.
D.
Extension of time for plat approval. Notwithstanding the foregoing provisions of this section, the Planning Board may extend the time in which a conditionally approved plat in final form must be submitted for signature if, in its opinion, such intention is warranted by the particular circumstances thereof, not to exceed two additional periods of 90 days each.
E.
Filing of subdivision and resubdivision maps or plats. Final subdivision plats must be filed with the County Clerk's office within 62 days after the date of approval by the Town.
[Amended 8-2-2011 by L.L. No. 4-2011]
F.
Approval of subdivision plat sections. Prior to granting conditional or final approval of a final plat form, the Planning Board may permit the plat to be subdivided into two or more sections and may, in its resolution granting conditional or final approval, state that such requirements as it deems necessary to ensure the orderly development of the plat be completed before such sections may be signed by the duly authorized officer of the Planning Board. Conditional or final approval of the sections of a final plat, subject to any conditions imposed by the Board, shall be granted concurrently with conditional or final approval of the plat.
G.
Authority of Planning Board to require parks. Before the approval by the Planning Board of a plat showing lots, blocks or sites, with or without streets or highways, or the approval of a plat already filed in the office of the Town Clerk if such plat is entirely or partially undeveloped, such plat shall also show, in proper cases and when required by the Planning Board, a park or parks suitably located for playground or other recreational purposes. If the Planning Board determines that a suitable park or parks of adequate size cannot be properly located in any such plat or is otherwise not practical, the Planning Board may require, as a condition for approval of any such plat, a payment to the Town of a sum to be determined by the Town Board, which sum shall constitute a trust fund to be used by the Town exclusively for neighborhood park, playground or recreation purposes, including the acquisition of property.
H.
Requirements for streets and highways in plats. In approving such plats, the Planning Board shall require that the streets and highways shall be of sufficient width and suitable grade and shall be suitably located to accommodate the prospective traffic, to afford adequate light and air, to facilitate fire protection and to provide access of fire-fighting equipment to buildings, and if there is an Official Map or Comprehensive Plan, they shall be coordinated so as to compose a convenient system conforming to the Official Map and properly related to the proposals shown by the Planning Board on the Comprehensive Plan. All streets or other public places shown on such plats shall be suitably graded and paved and street signs, sidewalks, streetlighting standards, curbs, gutters, street trees, water mains, fire alarm signal devices including necessary ducts and cables or other connecting facilities, sanitary sewers and storm drains or combined sewers shall be installed all in accordance with standards, specifications and procedures acceptable to the appropriate Town departments.
[Amended 8-2-2011 by L.L. No. 4-2011]
I.
Posting of bond to insure performance. A performance bond sufficient to cover the full cost of required improvements as estimated by the Planning Board or other appropriate Town departments designated by the Planning Board shall be furnished to the Town by the owner. In the event that the owner shall be authorized to file the approved plat in sections, approval of the plat may be granted upon the installation of the required improvements in the section of the plat filed in the office of the County Clerk or the posting of a bond covering the cost of such improvements. Such performance bond shall be issued by a bonding or surety company approved by the Town Board, or by the owner with security acceptable to the Town Board, and shall also be approved by such Town Board as to form, sufficiency and manner of execution. Such performance bond shall run for a term to be fixed by the Planning Board but in no case for a longer term than three years; provided, however, that the term of such performance bond may be extended by the Planning Board with consent of the applicant.
J.
Waiver of requirements.
[Added 4-10-2006 by L.L. No. 2-2006; amended 4-9-2012 by L.L. No. 5-2012]
(1)
Alteration of lot lines. The Planning Board shall review all plats which consist solely of alteration of lot lines between two or more contiguous lots. Upon a determination that there is no increase in the nonconformity of any dimensional area or setback requirements to any resulting lot, the Planning Board shall approve the plat, and the procedures for approval of subdivision plats do not apply. In the event there is any increase in the nonconformity of any dimensional area or setback requirement to any resulting lot, the procedures for approval of subdivision plats apply subject to the discretion of the Planning Board to waive any of the procedures for approval of subdivision plats, including any requirement for a public hearing. The Planning Board shall not, however, approve any such plat in which there is an increase in the nonconformity of any dimensional area or setback requirement of any lot unless the Zoning Board of Appeals has issued a variance.
(2)
Lot combinations.
[Amended 11-10-2014 by Ord. No. 5-2014]
(a)
Courtesy combination without Planning Board review. An owner of two or more contiguous parcels may make a written request to the assessor or acting assessor of the town to combine two or more contiguous parcels provided that (1) all parcels are situate within a single zoning district and wholly situate within the Town of Hamlin, (2) none of the parcels are within a subdivision, and (3) the parcels have identical ownership. Said written request must be signed by the owner of the properties, shall set forth the Tax Map number of each contiguous parcel to be combined, and shall provide proof of payment of all property taxes on said parcels. Provided that the aforesaid requirements are met between January 1 and March 1, the assessor or acting assessor shall submit a letter to the Real Property Services Office of Monroe County requesting such combination for tax mapping purposes. Said request from the assessor or acting assessor shall include a copy of the signed request from the owners, shall include the Tax Map number and owners name of each parcel to be combined, the Tax Map number remaining on the Tax Map that will identify the one combined parcel, and proof of payment of all property taxes on the parcels to be combined.
(b)
Lot combinations requiring Planning Board review. An application for a plat that simply combines two or more contiguous lots, and which does not meet the requirements for courtesy combination pursuant to § 520- 66J(2)(a), must be reviewed by the Planning Board, and such plat shall be approved upon the Planning Board's determination that the plat meets requirements for filing as determined by that Board. Such plats are not considered as subdivisions.
K.
Applicability of § 278 of the New York State Town Law. The Planning Board is hereby empowered, simultaneously with the approval of a plat or plats pursuant to this section, to modify applicable provisions of this chapter as prescribed by § 278 of the New York State Town Law. The purposes of such authorization shall be to enable and encourage flexibility of design and development of land in such a manner as to promote the most appropriate use of land, to facilitate the adequate and economical provision of streets and utilities, and to preserve the natural and scenic qualities of open lands.
[Amended 8-2-2011 by L.L. No. 4-2011]
§ 520-67 Special use permits.
[Amended 3-4-1992 by L.L. No. 2-1992; 2-10-1997 by L.L. No. 1-1997; 3-12-2001 by L.L. No. 1-2001]
A.
Issuance. The Town of Hamlin Planning Board, in accordance with the general provisions of § 274-b of the New York State Town Law, shall have the authority to issue special use permits for certain land uses which are permitted with a special use permit pursuant to the provisions of this chapter.
B.
Procedure for obtaining special use permit.
(1)
Except as hereinafter provided in Subsection D relating to expedited permits for certain professional offices in residences and home occupation uses, whenever a special use permit is required by this chapter, as hereinafter in effect, the applicant shall proceed in the following manner:
[Amended 12-11-2006 by L.L. No. 10-2006]
(a)
The applicant shall submit to the Building Inspector an application on a form provided by the Building Inspector. The application shall be accompanied by plot plan showing, where applicable:
[1]
The location, dimensions and area of the land or lot;
[2]
The location of all existing and proposed buildings or structures with reference to property lines;
[3]
The elevation, area and dimensions of all existing and proposed buildings or structures;
[4]
The plans and specifications for all proposed buildings or structures or alterations of existing buildings or structures;
[5]
A statement of the specific use or uses to be made of the land, buildings or structures; and
[6]
Such other information as the Building Inspector may require.
(2)
Within a reasonable time, the Planning Board shall direct a public hearing to be held on the application and fix the date of such hearing. The hearing shall be held within 62 days after filing of the application. Publication of notice of hearing shall be made by the Clerk of the Planning Board once in the official newspaper at least five days prior to the hearing date, and the Clerk shall also mail written notice of such hearing to all property owners within 500 feet in all directions at least five days before the date of such hearing. Proof of publication and mailing shall be filed with the Town Clerk before the hearing date. Also, as required by § 239-m of the General Municipal Law, notice shall be mailed to the applicant and to the Monroe County Planning Board at least 10 days before the hearing.
(3)
At such hearing, the Board may take such testimony and thereafter conduct such investigation as it deems necessary and shall, within 62 days, grant or deny the application or grant the same on conditions stated in the decision. The decision of the Board shall be entered in its minutes and filed with the Town Clerk of the Town of Hamlin. If the special permit is granted, the decision of the Board shall direct the Building Inspector to issue a building permit or certificate of occupancy, as may be appropriate, in conformity with the decision, upon payment of the required fee.
(4)
Fees shall be established by the Town Board and paid to the Town Clerk as required by law.
C.
Waiver of certain requirements for special use permits for certain professional offices in residences and certain home occupations. Whenever the Planning Board receives an application for a special use permit for a professional office in a home or for a home occupation use pursuant to § 520-26 of this chapter, it shall determine if the proposed use meets all the following requirements for classification as a "minor professional office" in a residence or a "minor home occupation use":
[Added 12-11-2006 by L.L. No. 10-2006]
(1)
No individual who is not a resident of the premises may be employed by the business.
(2)
There shall be no sign identifying the business.
(3)
All business is conducted by appointment only. No more than 10 appointments may be scheduled during any one day.
(4)
No more than two customer vehicles shall be on the premises at the same time.
(5)
No commercial vehicles used in connection with the professional office or home occupation use shall be parked on the premises.
D.
Procedure for expedited issuance of special use permits. Whenever the Planning Board has made a determination that an application for a special use permit is for a minor professional office or minor home occupation use, the requirement for a public hearing set forth in Subsection B(2) shall be waived, and, if the proposed use does not involve new construction, the Planning Board may waive any or all of the requirements for site plan review, including the requirement for a public hearing, as it may deem appropriate. In the event it has been determined that the application is for a minor professional office or minor home occupation use, the Planning Board may issue the special use permit upon written findings, without a hearing, that the proposed use will be in compliance with the restrictions set forth in § 520-26C and Subsection F of this section.
[Added 12-11-2006 by L.L. No. 10-2006]
E.
Special use permits for bed-and-breakfast facilities. In addition to all other requirements regarding special use permits, no special use permit for a bed-and-breakfast facility shall be issued unless the proposed bed-and-breakfast facility is found to comply with the following standards which shall be conditions of the permit:
[Added 2-11-2008 by L.L. No. 2-2008]
(1)
The owner of the bed-and-breakfast facility must reside in and continue to reside in the dwelling as his/her/their principal residence. The owner will provide a sworn statement certifying to such residency to the Building Inspector on an annual basis commencing with the issuance of a certificate of occupancy.
(2)
No more than one employee shall be permitted to work on the premises at any time, and none shall be present between the hours of 11:00 p.m. and 6:00 a.m. Members of the owner’s immediate family who are residents on the premises shall not be considered employees, whether or not paid.
(3)
(4)
No guest may be registered for a maximum continuous period in excess of seven consecutive nights. The owner shall maintain a guest register and shall preserve registration records for a minimum of three years. The register and all records shall be made available for inspection at any time by the Building Inspector of the Town of Hamlin.
(5)
Any meals provided and any amenities connected with the guest rooms, such as a swimming pool or tennis court, shall be solely for the use of the owner, the owner's family and the owner's registered guest.
(6)
The bed-and-breakfast facility shall be maintained and operated at all times so as to comply with all applicable laws and ordinances of the State of New York, County of Monroe, Town of Hamlin, and all rules and regulations promulgated thereunder.
(7)
One sign shall be permitted identifying the property as a bed-and-breakfast facility. The sign shall not exceed three square feet in area and shall contain no information other than identification of the premises as the named bed-and-breakfast. The setback and other distinguishing features shall be in accordance with terms as established by the Planning Board during site plan review.
(8)
Each bedroom occupied by a paying guest shall be equipped with a properly installed and functioning smoke detector. Further, a smoke detector shall be properly installed and functioning on or near the ceiling in the room or hallway from which each bedroom rented to paying guests exists.
(9)
Each bed-and-breakfast shall be established, maintained and operated so as to preserve and compliment the residential character and integrity of the surrounding area when the facility is established in a residential district as provided in the code.
(10)
The Building Inspector and Fire Marshal shall be given such access to the dwelling as they deem necessary from time to time for the purpose of making inspections to ensure compliance with all federal, state and local codes, rules and regulations, including the New York State Uniform Fire Prevention and Building Code. Such inspections may be made with or without prior notice thereof.
(11)
The Planning Board shall have the right to impose and include other and additional conditions as it may deem necessary to effectuate the purpose of this chapter.
F.
Special use permits for kennels. In addition to all other requirements regarding special use permits, no special use permit for a kennel shall be issued unless the proposed kennel is found to comply with the following standards, which shall be conditions of the permit:
[Added 7-13-2015 by L.L. No. 6-2015[1]]
(1)
All kennel facilities shall be located behind the rear foundation line of the principal structure.
(2)
On-site open storage or composting of animal waste is prohibited. An animal waste disposal plan is required.
(3)
Subject to the provisions of § 520-67F(6)(h) below, all kennel facilities must be set back 50 feet from any property line.
(4)
All animals must be kept in separate crates or cages within an enclosed building between the hours of 10:00 p.m. and 6:30 a.m.
(5)
An emergency preparedness plan shall be established for the kennel facility.
(6)
Such other conditions which the Planning Board deems appropriate for the particular site and particular kennel facility in order to avoid detrimental impact on surrounding properties with respect to the following:
(a)
Fencing or screening around outside kennel areas;
(b)
Odor control;
(c)
Soundproofing of buildings;
(d)
Maximum number of animals permitted at any one time;
(e)
Species of animals permitted;
(f)
Adequacy of staffing for animal supervision;
(g)
Hours of operation when animals may be delivered or picked up or when visitors are permitted;
(h)
After consideration of the particular site, the site's proximity to neighboring residences, the number and species of animals permitted, and to minimize visual impact and noise impact on surrounding properties, the Planning Board may require setbacks greater than 50 feet for certain kennel facilities; or, in the event it determines that certain kennel facilities will not have an undue visual or noise impact on surrounding properties, the Planning Board may provide that such facilities may be located closer than 50 feet from a property line, but in no event less than 15 feet from a property line.
G.
Denial of special use permits. The Planning Board will deny an application for a special use permit where it determines, based upon written findings, that one or more of the following considerations or requirements have not been met by the applicant:
(1)
The proposed use will not create hazards or dangers to the public or to persons in the vicinity as a result of increased traffic (i.e., congestion, turning movements, crowds, parking of automobiles or other similar conflicts).
(2)
The proposed use will serve the public convenience and welfare and is not injurious or prejudicial to adjoining or neighboring uses with respect to noise, odor, fumes, smoke, heat, glare, vibrations, lights, litter, waste products or similar considerations.
(3)
The proposed use can be adequately serviced by existing or proposed utility lines, Town streets or highways and other Town services such as police and fire protection, etc.
(4)
The proposed use will not materially conflict with the existing direction of building development and street layout or the proposed land use pattern as outlined for the area in the official Town Comprehensive Plan.
(5)
The proposed use will not have any adverse affect on the general character, health, safety and welfare of the community by virtue of its particular size or location, nature or intensity of the activities involved or its influence on neighboring land uses.
H.
Site plan review for special use permits. Each special use permit application must also receive site plan approval from the Planning Board before the special use permit may be granted.
I.
Automatic termination of approval for special use permit. Any special use permit shall automatically become null and void in the event an application for a building permit or certificate of occupancy, as the case may be, is not made within one year from the date of the final decision of the Planning Board authorizing the issuance of a building permit or certificate of occupancy for a specially permitted use.
J.
Annual inspection. The Building Inspector will annually inspect all properties for which a special use permit has been issued. In the event the use is found not to conform to the terms and conditions of this chapter and/or of the permit, the Building Inspector shall issue to the owner and/or business operator a fourteen-day notice to conform. If the owner and/or business operator does not conform within that time period, the owner and/or business owners will be subject to enforcement proceedings as provided in Article VIII of this chapter.
K.
The owner of any property for which a special use permit has been issued is required to apply for an extension every year. The application for extension shall be made to the Building Inspector. The application shall be granted upon the Building Inspector's certification that an inspection of the premises has indicated satisfactory compliance with the terms and conditions of this chapter and of the permit, and if there has been an absence of written complaints regarding the use during the past year. The Building Inspector shall commence enforcement proceedings against the owner of the property in the event he does not issue the annual extension of the permit.
§ 520-68 Public or municipal structures, facilities or utilities.
[Amended 5-6-2013 by L.L. No. 2-2013]
Nothing in this chapter shall restrict the construction, use or maintenance of public or municipal buildings, structures or facilities or other publicly owned properties nor the installation, maintenance and operation of such public utilities and facilities as may be essential to the servicing of any district or area.
§ 520-69 Zoning Board of Appeals.
A.
Board organization.
(1)
Pursuant to the provisions of § 267 of the New York State Town Law, there shall be within the Town of Hamlin a Town Zoning Board of Appeals consisting of five members appointed by the Town Board, with each member serving a term of five years. If a vacancy occurs on the Zoning Board of Appeals as a result of an expiration of a member's term, the Town Board shall fill the vacancy by appointment for a new five-year term. If a vacancy occurs on the Board for any other reason, the Town Board shall fill the vacancy by appointment for the unexpired term.
[Amended 2-12-2007 by L.L. No. 4-2007]
(2)
If upon the effective date of this chapter, the authorized membership of the Zoning Board of Appeals is seven members, no incumbent shall be removed from office except upon the expiration of his or her term.
[Added 2-12-2007 by L.L. No. 4-2007]
(3)
The Zoning Board of Appeals shall recommend to the Town Board a member to be appointed as Chairperson. For the purpose of initiating a Zoning Board of Appeals under this chapter, the normal continuance of the existing Zoning Board of Appeals is established. The Zoning Board of Appeals may adopt rules governing the taking, hearing and determination of appeals, applications for accessory permits or any subject matter over which it has jurisdiction under this chapter or under the New York State Town Law, following a public hearing on such matters, and provided that such rules, regulations or procedures conform to the general minimum requirements outlined in this chapter.
[Amended 3-4-1992 by L.L. No. 2-1992]
(4)
The Zoning Board of Appeals shall have the power to hear and decide appeals from any order, decision or determination of the Building Inspector or other administrative officer charged with the enforcement of this chapter, and, in passing upon such appeals, it shall have the power to vary or modify the application of any of the provisions of this chapter relating to the use, construction or alteration of buildings or structures or the use of land to the extent permitted by the New York State Town Law.
(5)
The concurring vote of a majority of the total membership of the Board shall be necessary to reverse any order, requirement, decision or determination of any such administrative official or to effect any variation in this chapter.
B.
Variances.
(1)
Granting of variances. Where practical difficulties, unnecessary hardships and results inconsistent with the general purposes of this chapter may result from strict application of certain provisions thereof, variances may be granted as provided in this section.
(2)
Application for variance. A property owner(s) or his or her agent(s) may initiate a request for a variance by filing an application with the Town Clerk using forms provided by the Town for such requests. Such application shall be accompanied by either a legal description or tape location map of the property and, as deemed necessary by the Zoning Board of Appeals, plans and elevations necessary to show the proposed variance, other drawings or information necessary to an understanding of the proposed use and its relationship to surrounding properties, and a filing fee as required in the Town's fee schedule, established by the Town Board.
(3)
Granting or denial of variances.
(a)
Area variances.
[Amended 8-8-2005 by L.L. No. 4-2005]
[1]
In making its determination on an application for an area variance, 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:
[a]
An undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by granting of the variance;
[b]
The benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;
[c]
The requested area variance is substantial;
[d]
The proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and
(b)
Use variance.[3]
[1]
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 permitted use under the zoning regulations for the particular district where the property is located:
[a]
The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence;
[b]
That the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the district or neighborhood;
[c]
That the requested use variance, if granted, will not alter the essential character of the neighborhood; and
[d]
That the alleged hardship has not been self-created.
[2]
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.
(4)
Public hearing for variances. Before the Zoning Board of Appeals may act on a request for a variance, it shall hold a public hearing. Notice of said hearing shall be given as provided in § 267 of the Town Law, and a decision shall be rendered within 62 days of the final hearing date.
[Amended 2-10-1997 by L.L. No. 1-1997[4]]
(5)
Limitations on variances. Subject to an extension as granted by the Town Zoning Board of Appeals, no variance of the provisions of this chapter shall be valid for a period longer than one year, unless a building permit is issued and construction is actually begun within that period and is thereafter diligently pursued to completion, or unless a certificate of occupancy is issued and a use commenced within such period.[5]
[5]
Editor's Note: Original § 125-76C, Zoning Board of Appeals accessory and professional office/home occupation permit authority, which immediately followed this subsection, as amended 12-2-1991 by L.L. No. 6-1991, 3-4-1992 by L.L. No. 2-1992, and 2-10-1997 by L.L. No. 1-19997, was deleted 3-12-2001 by L.L. No. 1-2001.
(6)
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.
[Added 8-8-2005 by L.L. No. 4-2005[6]]
C.
Appeals from Zoning Board of Appeals decisions. Any person aggrieved by any decision of the Zoning Board of Appeals may apply to the Supreme Court for review by a proceeding under Article 78 of the Civil Practice Law and Rules. Such proceedings shall be instituted within 60 days after the filing of a decision in the office of the Town Clerk.[7]
§ 520-70 Consolidation of Boards.
The Town Board may, by resolution, appoint the same persons to the Planning Board and Zoning Board of Appeals for the terms heretofore fixed.