Henrietta City Zoning Code
ARTICLE XII
Special Use Permits
§ 295-53 Procedure for obtaining special use permits.
A.
Whenever a special use permit is required by this chapter, the applicant shall proceed in accordance herewith. Application for a special use permit shall be made in writing and filed with the Department of Building and Fire Prevention on the relevant Town application forms. The application must include plans and specifications as detailed in the Town's application forms and/or information as may otherwise be required by the Town, including as per the Director of Building and Fire Prevention, the Director of Engineering and Planning, and/or their designee. Applications shall be posted on the Town's website for public review at least 10 calendar days prior to the day of the public hearing to be had on such application.
[Amended 10-12-2022 by L.L. No. 17-2022]
B.
Within a reasonable time the board to which such application is directed (or, if such powers have been delegated by the board to the clerk of the board or to the Building Inspector or designee, then such official) 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 board once in the official newspaper at least five days prior to the hearing date, and the board shall also mail written notice of such hearing to all property owners within 750 feet in all directions at least five days before the date of such hearing. Proof of publication and mailing shall be filed with the Building Inspector or designee before the hearing date. The board may delegate the power to call the hearing and fix hearing dates to its clerk or to the Building Inspector or designee.
C.
At such hearing, the board may take such testimony and thereafter conduct such investigation as it deems necessary and shall, within 62 days after the hearing, 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 Henrietta. If the special use permit is granted, the decision of the board shall direct the Building Inspector or designee to issue a building permit or certificate of occupancy, as may be appropriate, in conformity with the decision, upon payment of the required fee.
D.
In the case of an application to the Town Board, the Town Board may, if it so desires and in its own discretion, before taking final action, refer the application to the Planning Board. Within 30 days after receipt of the application and the supporting papers filed in connection therewith, the Planning Board shall report its recommendations thereon to the Town Board, accompanied by a full statement of its reasons for the recommendations. Said recommendations are not binding upon the Town Board. If the Planning Board fails to report on a referred application prior to the time the Town Board is ready to act on the application, the Town Board may take action relative to the application as it sees fit, without any report.
E.
Fees shall be as established by Town Board resolution and paid to the Town Clerk as required by law.
§ 295-54 Granting or denial of special use permits.
In considering an application for a special use permit, the Town Board shall make its decision based upon the following factors. The Town Board may impose conditions, including in order to resolve any issues identified via its assessment of said factors.
A.
Whether the proposed use is substantially consistent in its scale and character with those uses permitted and the existing built permitted uses in the subject zoning district and neighborhood or will otherwise impair such uses due to inconsistency.
B.
Whether the proposed use aligns with the vision, goals and recommendations of the Comprehensive Plan and other applicable plans and studies conducted by or on behalf of the Town.
C.
Whether the proposed use aligns with the purpose, intent, and applicable design and development standards of the zoning district(s) in which the use is proposed to be located.
D.
Whether the proposed use will be a nuisance in law or in fact due to its being materially noxious, offensive or injurious by reason of the production of or emission of dust, smoke, refuse, poisonous substances, odors, fumes, noise, radiation, vibration, unsightliness or similar conditions, or will contaminate waters.
E.
Whether the proposed use will create material hazards or dangers to the public or to persons in the vicinity from fire, explosion, electricity, radiation, traffic congestion, crowds, parking of vehicles, or other causes.
F.
Whether the proposed use will create materially adverse impacts that cannot be adequately mitigated, such as to adversely impact natural resources or the environment, agriculture, community services or other areas required to be addressed by the State Environmental Quality Review Act (SEQRA).
G.
Whether the physical conditions and characteristics of the site are suitable for the proposed use considering site size, configuration, location, access, topography, vegetation, soils, and hydrology for effective stormwater management and, if necessary, the ability to be screened from neighboring properties and public roads.
H.
Whether there are adequate public infrastructure, utilities, community facilities and emergency services, either existing or to be provided by the applicant or others, to effectively serve the proposed use. A proposed use shall not create or contribute to an existing inadequacy.
I.
Whether the proposed use will provide, maintain, or enhance, as necessary, safe and efficient vehicular traffic patterns, nonmotorized travel, and pedestrian circulation as well as, where feasible, access to public spaces, parks, recreation, and open space resources.
§ 295-54.1 Additional provisions for certain specific uses requiring special use permit.
[Amended 4-12-2022 by L.L. No. 9-2022; 4-12-2022 by L.L. No. 10-2022; 10-25-2023 by L.L. No. 10-2023; 7-31-2024 by L.L. No. 4-2024; 2-6-2025 by L.L. No. 1-2025; 4-10-2025 by L.L. No. 6-2025]
In considering an application for a special use permit, in addition to the factors set forth at § 295-54, the following additional provisions will apply to the following specified uses, including that the Town Board shall also consider the following additional factors when making its decision.
A.
Restaurants.
(1)
Generally. A special use permit for a restaurant shall specify which operational subtypes are permitted in association with such restaurant. Only those subtypes approved as part of the special use permit are permitted in association with the subject restaurant.
(3)
Changes. A new restaurant using the existing space of a preexisting restaurant may continue under the preexisting special use permit so long as the preexisting special use permit contains the operational subtypes that the new restaurant will employ. Should a new or existing restaurant wish to modify the permitted subtypes of a special use permit, it may apply for a new or amended special use permit.
B.
Cannabis retail dispensaries.
(1)
State approvals. Any approval of a cannabis retail dispensary shall be conditioned upon proof of any required state or other governmental approvals, including but not limited to licensure by the Cannabis Control Board.
(2)
Increased buffer.
(a)
Cannabis retail dispensaries may be established no less than 1,000 feet from any: a) school or school grounds; b) park or playground; c) church/house of worship; d) residence; or e) business which is primarily focused on providing services/products to children, including, for example, child-care facilities or recreational facilities with a significant youth component. Whether a use qualifies as one of the aforementioned, and thus requires an increased buffer, shall be assessed by the Town Board as part of the special use permit process. Such 1,000-foot setback shall be measured from the closest portion of the dispensary premises (inclusive of the dispensary building or leased tenant space, as well as any exterior portions where the actual dispensing might take place, such as outdoor sales locations or a drive through window) to the nearest portion of the buffered use (inclusive of, for example, outdoor spaces utilized by schools, for parks, etc.).
(b)
This buffer requirement may be reduced by the Town Board by up to any lesser minimums otherwise required by the state. In considering whether the reduction may be appropriate and the extent to which it may be reduced, the Town Board shall consider: whether there is a sufficient physical barrier between the dispensary and the buffered use; whether and to what extent advertising, signage, and/or other activity associated with the same which would be visible from the buffered use; and to what extent any reduced buffer might otherwise negatively impact the buffered use.
(3)
In no event shall any buffer be any less than otherwise required by state law or any other governmental agency with jurisdiction over the dispensary.
(4)
Additional special use permit factors. In considering a special use permit for a cannabis retail dispensary, the Town Board shall additionally consider how the § 295-54 special use permit factors apply specifically to any surrounding properties within a 250-foot distance, measured door-to-door. When measuring door-to-door, the nearest doors shall be used (not including emergency exit only doors).
C.
Specialty motor vehicle limited showroom/sales.
(1)
Limited volume and size and consistency with Industrial District. Specialty motor vehicle limited showroom/sales operations are to be smaller scale specialty sales operations which are significantly limited in sales volume, size of operation and scope of products offered, especially as compared to traditional car dealerships. In addition, and consistent with the aforementioned, they shall be limited in use intensity to be consistent with the industrial nature of the industrial district within which they are located (e.g., they are not intended to be a high-traffic retail area). Thus, the volume of expected sales activity and resultant use intensity and traffic shall be materially less than that of a typical car dealership and shall also generally be consistent with the industrial character of the surrounding area. In considering these issues, the Town Board shall consider (and may impose conditions relating to) but is not limited to considering the following: whether the number of vehicles for sale kept at the property is sufficiently limited, whether the number of demonstration/showroom vehicles kept at the property is sufficiently limited, whether activity associated with transportation and delivery of vehicles to the site is controlled and sufficiently limited, whether the size of the parking/storage area on the site is sufficiently limited, and whether the range/types of vehicles to be sold at the property is sufficiently limited, etc.
D.
Air-supported dome structures.
(1)
Any special use permit granting approval for an air-supported dome structure shall include, but not be limited to the following conditions:
(2)
The provisions of this subsection shall not apply to any lawful or approved air-supported dome structure existing prior to the effective date of this subsection; however, no air-supported dome structure shall be modified unless in conformity with this subsection.
E.
Split-zoned parcels/split-zone special use permit. A split-zone special use is a specially permitted use which permits a parcel comprised of multiple zoning districts (i.e., a "split-zoned" parcel) to be treated for zoning purposes as if it were zoned entirely as a single designated zoning district present on the parcel (thus permitting all uses of such designated district across the entire parcel). For a parcel comprised of multiple zoning districts (as of the date of this Local Law[1]), a "split-zone special use" may be permitted in any zoning district in Town in accordance with and as set forth herein, subject to issuance of a special use permit by the Town Board.
(1)
Generally. Where a split-zone special use permit is issued, the entire subject parcel shall be treated for zoning purposes as if it were zoned as the single designated zoning district, all in accordance with this subsection.
(2)
Default zoning as mapped. Where no split-zone special use permit is issued, a split-zoned parcel shall be treated in accord with the applicable zoning districts as mapped - e.g., the portion of the parcel zoned ILCD shall be treated in accordance with ILCD, and the portion of the parcel zoned B-1 shall be treated in accordance with B-1.
(3)
Two zoning districts. Where a parcel spans exactly two zoning districts, the entire parcel may be treated consistent with any single zoning district which covers at least 40% of the parcel, subject to issuance of a split-zone special use permit in accordance herewith. In this case, for purposes of this chapter, the entire parcel shall then be treated as if its zoning is entirely comprised of the designated 40+% zoning district.
(4)
Three or more zoning districts. Where a parcel spans three or more zoning districts, the entire parcel may be treated consistent with any single zoning district which covers at least 30% of the parcel, subject to issuance of a split-zone special use permit in accordance herewith. In this case, for purposes of this chapter, the entire parcel shall then be treated as if its zoning is entirely comprised of the selected 30+% zoning district.
(a)
Where no zoning district meets the 30% threshold in this case, then the designation may be made by selecting a zoning district which covers the largest or second largest area of the subject parcel, subject to issuance of a split-zone special use permit in accordance herewith. In this case, the entire parcel shall then be treated as if its zoning is entirely comprised of the selected largest or second largest zoning district.
(5)
Shared district subtypes. Where a split-zoned parcel contains zoning districts that are of the same subtype (e.g., R-1-20 and R-2-15 are both "residential" districts), the districts of the same subtype may be treated as a single zoning district for purposes of reaching any threshold herein.
(6)
Preexisting zoning conditions/specifics. In considering the issuance of a split-zone special use permit, the Town Board shall address any existing zoning conditions (also sometimes referred to as "specifics"), as follows:
(a)
If the designated zoning district contains conditions/specifics, those conditions/specifics shall generally be applied to the entire parcel. However, the Town Board may waive the application of the same against the remainder of the parcel (i.e., the area of the parcel which was not originally subject to such conditions/specifics) where it finds that the application of such conditions/specifics to the remainder of the parcel would not further the intent of such conditions/specifics and/or would not otherwise represent a material benefit to the general welfare of the Town given the split-zone special permit use.
(b)
If a non-designated district contains conditions/specifics, then those conditions/specifics shall generally continue to apply against the non-designated district area. However, the Town Board may waive the application of the same where it finds that continued application of the conditions/specifics would not further the intent of the same and/or would not otherwise represent a material benefit to the general welfare of the Town given the split-zone special permit use.
(7)
Effect of split-zone special use permit. Where a split-zone special use permit is issued, the entire parcel will then be treated as entirely zoned in accord with the singular designated zoning district - the parcel may not then continue to make use of any other zoning districts unless the associated split-zone special use permit is terminated.
(8)
Termination of split-zone special use. Should one seek to return to the original zoning of the parcel, a special use permit application shall be made to the Town Board to terminate the existing split-zone special use permit. In such a case, the Town Board may condition such approval on discontinuance of uses that would not otherwise be permitted pursuant to the underlying zoning but for the issuance of a split-zone special use permit.
(9)
Subsequent subdivision of parcel with a split-zone special use.
(a)
Subdivision of a split-zone special use permit shall require termination of the subject permit, and no nonconforming uses shall be created due to the subdivision of a parcel with a split-zone special use permit. As such, where a parcel which has received a split-zone special use permit is proposed for subdivision, each of the parcels (and their associated uses) resulting from such subdivision shall:
[1]
Be zoning compliant with the underlying district; or
[2]
Qualify for, apply for and receive a split-zone special use permit to continue existing uses which would require such permit; or
[3]
Otherwise terminate the split-zone use permit and associated uses to the extent they were permitted under a preexisting split-zone use permit and would no longer qualify under the proposed subdivision.
(b)
Should a resultant parcel not meet one of the above, then the subdivision shall not be permitted.
(10)
No use of split-zone special use to circumvent rezoning. A subdivision or combination of parcels shall not be utilized to manipulate districting percentages in order to achieve thresholds herein, such as to avoid the requirement to rezone or to permit development that would not otherwise be permitted pursuant to the presubdivision or precombination parcel(s).
[1]
Editor's Note: "This local law" refers to L.L. No. 10-2022, adopted 4-12-2022.
F.
Smoke shops.
(1)
Increased buffer.
(a)
Smoke shops may only be established no less than 1,000 feet from any a) school or school grounds, b) park or playground, c) church/house of worship, d) residence, or e) business which is primarily focused on providing services/products to children, including, for example, child-care facilities or recreational facilities with a significant youth component. Whether a use qualifies as one of the aforementioned, and thus requires an increased buffer, shall be assessed by the Town Board as part of the special permit process. Such 1,000-foot setback shall be measured from the closest portion of the premises (inclusive of the building or leased tenant space, as well as any exterior portions where the actual sales might take place, such as outdoor sales locations or a drive-through window) to the nearest portion of the buffered use (inclusive of, for example, outdoor spaces utilized by schools, for parks, etc.).
(b)
This buffer requirement may be reduced by the Town Board by up to any lesser minimums otherwise required by the state. In considering whether the reduction may be appropriate and the extent to which it may be reduced, the Town Board shall consider: whether there is a sufficient physical barrier between the establishment and the buffered use; whether and to what extent advertising, signage, and/or other activity associated with the same which would be visible from the buffered use; and to what extent any reduced buffer might otherwise negatively impact the buffered use.
(2)
Additional special permit factors. In considering a special permit for a smoke shop, the Town Board shall additionally consider how the § 295-54 special permit factors apply specifically to any surrounding properties within a 250-foot distance, measured door-to-door. When measuring door-to-door, the nearest doors shall be used (not including emergency exit only doors).
G.
Cannabis production facility.
(1)
State approvals. Any approval of a cannabis production facility shall be conditioned upon proof of any required state or other governmental approvals, including but not limited to licensure by the Cannabis Control Board.
(2)
Increased buffer.
(a)
Cannabis production facilities may be established no less than 1,000 feet from any: a) school or school grounds; b) park or playground; c) church/house of worship; d) residence; or e) business which is primarily focused on providing services/products to children, including, for example, child-care facilities or recreational facilities with a significant youth component. Whether a use qualifies as one of the aforementioned, and thus requires an increased buffer, shall be assessed by the Town Board as part of the special use permit process. Such 1,000-foot setback shall be measured from the closest portion of the facility premises (inclusive of the facility building or leased tenant space, as well as any exterior portions where the actual production might take place, such as outdoor sales locations or a drive-through window) to the nearest portion of the buffered use (inclusive of, for example, outdoor spaces utilized by schools, for parks, etc.).
(b)
This buffer requirement may be reduced by the Town Board by up to any lesser minimums otherwise required by the state. In considering whether the reduction may be appropriate and the extent to which it may be reduced, the Town Board shall consider: whether there is a sufficient physical barrier between the facility and the buffered use; whether and to what extent advertising, signage, and/or other activity associated with the same which would be visible from the buffered use; and to what extent any reduced buffer might otherwise negatively impact the buffered use.
(3)
In no event shall any buffer be any less than otherwise required by state law or any other government agency with jurisdiction over the facility.
(4)
Odor control.
(a)
Minor cannabis production facilities must implement stringent odor control measures such that the odor is minimally detectable outside the production facility. Such measures for consideration include active odor elimination systems as well as not allowing the cannabis plants to flower.
(b)
Major cannabis production facilities must implement enough odor control measures to not create noxious, offensive, or injurious odor emissions.
(5)
Additional special use permit factors. In considering a special use permit for a cannabis production facility, the Town Board shall additionally consider how the § 295-54 special use permit factors apply specifically to any surrounding properties within a 250-foot distance, measured door-to-door. When measuring door-to-door, the nearest doors shall be used (not including emergency exit-only doors).
H.
Nonconforming uses.
(1)
A legal preexisting nonconforming use may be reconstructed, replaced, or demolished and replaced provided that the construction begins within 12 months of when the building was demolished, destroyed, or otherwise made uninhabitable, upon issuance of this special use permit. The Town Board may impose conditions designed to ensure that the proposed reconstruction or use is more consistent with the character of the surrounding neighborhood and has less adverse impacts than the use or structure it is replacing.
(2)
A legal preexisting nonconforming use may be modified or changed to a different nonconforming use within the footprint of the existing structure or site plan upon issuance of a special use permit by the Town Board. The Town Board shall issue the special use permit only upon a finding that the proposed use is more consistent with the character of the surrounding neighborhood and has no greater adverse impacts than the use it replaces.
(3)
A legal preexisting nonconforming use may be expanded or extended upon issuance of a special use permit by the Town Board. The Town Board may place limitations on the expansion or extension related to intensity of the use and capacity of structures or buildings. This special use permit shall be issued only upon a finding by the Town Board, as demonstrated by the applicant, that practical difficulties prevail in operating the premises or structure in its presently existing nonconforming manner and that the proposed extension or remodeling of the use or any structure would constitute a reasonable adjustment of the existing nonconforming use. The applicant has the burden of proving the practical difficulties and of establishing that the expansion or extension will not negatively alter the character of the neighborhood or create additional adverse impacts. The Town Board may also require that the applicant provide a community benefit agreement as a condition of the approval.
§ 295-55 Duration of special use permits.
A.
The approval or granting of a "special use permit" shall mean the authorization pursuant to this article of a specially permitted use (i.e., a use requiring a special use permit), which authorization is required prior to engaging in any such specially permitted use, and which is thus also required prior any issuance of a building permit or certificate of occupancy related to any specially permitted use.
B.
Validity and expiration. After a special use permit has been granted, said special use permit shall expire and become null and void and of no effect one year after it is granted, unless, within such year:
[Amended 11-15-2023 by L.L. No. 12-2023]
(1)
A principal use allowed per such special use permit actually, materially and legally commences; or,
(2)
A certificate of occupancy/compliance relating to a principal building, structure or use authorized pursuant to such special use permit (i.e., not an accessory building/structure/use, unless only an accessory building/structure/use is authorized via the special use permit) is duly issued; or
(3)
A building permit required for a principal building or structure authorized pursuant to such special use permit (i.e., not for an accessory building/structure, unless only an accessory building/structure is authorized) is duly applied for, in which case the special use permit shall continue to be valid during the term of any active building permit for a principal building or structure authorized pursuant to such special use permit (should one be issued), and such special use permit shall expire and become null and void and of no effect at such time as there is no such currently active and valid building permit for a principal building or structure (e.g., all such building permits are expired, have been revoked, etc.), unless:
(a)
Work authorized via any such building permit has been actually, materially and legally commenced; or,
(b)
A certificate of occupancy relating to such valid building permit is duly issued; or
(c)
A principal use (i.e., not an accessory use, unless only an accessory use was authorized via the special use permit) allowed per such special use permit actually and legally commences during the pendency of any such valid building permit.
(4)
If other government permitting is required for construction (including, e.g., from the DOT, etc.) and a permit is duly issued by such other governmental agency and provided to the Town within such year, the special use permit shall be valid for six additional months beyond the original expiration date (18 total months), and shall thereafter expire and become null and void and of no effect, unless, within such 18 months a requirement as per Subsection B(1), B(2), or B(3) above is satisfied.
C.
Extension. The Town Board, for good cause shown, may grant a longer period of time for the commencement of use, issuance of a certificate of occupancy/compliance, issuance of a building permit, and/or commencement of construction, provided, however, said application for extension shall be made before expiration of time. Such extensions shall be issued for periods of up to six months each.
[Amended 11-15-2023 by L.L. No. 12-2023]
D.
Cause for extension. In determining whether good cause exists for such extension, the Town Board shall consider, among other things, the nature and extent of the construction and complexity thereof, practical difficulty tending to delay construction, availability of utilities, strikes, scarcity of labor or materials, war or acts of God.
[Amended 11-15-2023 by L.L. No. 12-2023]
E.
Any special use permit granted by the Town may be revoked by the Town Board after notice and a hearing for any knowing violation of any provision of federal, state and local law or ordinance relating to the conduct of business and the use or maintenance of the premises or the knowing failure to comply with all the notices, orders, decisions and rules and regulations made by the Town governing the occupation and use of the premises by the applicant or a duly authorized agent or employee of the applicant in charge of the use.
F.
Notice of a hearing for the revocation of a special use permit shall be given, in writing, by the Town Clerk. The notice shall specifically set forth the grounds upon which the proposed revocation is based and the time and place of the hearing. It shall be served by mailing a copy to the applicant at his last known address by certified mail, return receipt requested, at least five days prior to the date set for the hearing.
G.
At the hearing, the applicant shall have the right to appear and be heard, to be represented by an attorney, to present witnesses on his own behalf, to cross-examine opposing witnesses and to have a permanent record made of the proceedings at his own expense. The Town Board shall revoke or suspend the special use permit if it is satisfied by a preponderance of the evidence that the applicant is guilty of the acts charged.
H.
The Town Board may issue another special use permit to a person whose special use permit has been revoked as provided in this section if, after a hearing, it is satisfied by clear and convincing evidence that the acts which led to the revocation will not occur again; otherwise, no person whose special use permit has been revoked nor any person acting on his behalf, directly or indirectly, shall be issued another special use permit to carry on the same activity.