Ossining City Zoning Code
Article
XX Moratorium for Submission and Processing of Land Use Approvals for Cannabis Dispensaries, Vape Shops, Smoke Shops, Vape Lounges and Vape Consumption Businesses
§ 270-98 Purpose.
A.
The purpose of this moratorium is to temporarily suspend issuance of land use approvals for cannabis dispensaries, vape shops, smoke shops, vape lounges and vape consumption businesses in the Village of Ossining pursuant to the Board of Trustees' authority to regulate and control land use; to protect the health, safety and welfare of the residents of the Village; to address present and future development in the Village; and to continue to update the Village's land use regulations.
B.
The Village of Ossining Code currently lacks the ability to regulate cannabis dispensaries, particularly time, place and manner in accord with the regulations of the Office of Cannabis Management. The moratorium shall maintain the status quo while allowing the Board of Trustees to develop appropriate zoning regulations to consider issues such as:
C.
In addition to Subsections A and B, the Board of Trustees is concerned that the unregulated establishment and operation of vape shops, smoke shops, vape lounges, hookah lounges and vape consumption businesses can lead to secondary impacts upon the residents, businesses, property values and quality of life in the Village and therefore would be detrimental to the health, safety and economic viability of the Village. The moratorium maintains the status quo and allows the Board of Trustees to consider revisions to Chapter 270 (zoning) and other provisions of the Village Code regarding such businesses.
§ 270-99 Definitions.
Any facility or person who sells at retail any cannabis product, the sale of which a license is required under the provisions of the New York State Marijuana Regulation and Tax Act (MRTA).
Any facility or location whose business operation includes the on-site indoor smoking of electronic cigarettes, vape pens, vapors, e-liquids, or other like substances. Smoking is the inhalation of the smoke/liquid nicotine/vapors/water pipe tobacco and other substances encased in electronic cigarettes, vape pens, and pipes commonly known as "hookah," "water pipe," "shisha" and "narghile."
A single or multi-stemmed instrument used by one or more persons to smoke tobacco or another substance, which hookah pipe is also commonly referred to as a "hookah" or "water pipe."
Any establishment which offers for sale or consideration cigarettes, tobacco paraphernalia, electronic cigarettes, pipes, vape pens, vapors, e-liquids, or other like substances, or cannabis paraphernalia, or components reasonably assumed to be used for smoking and/or inhalation or injection of any products or other substances as a substantial or significant portion of its business, merchandise and/or stock-in-trade. Such establishments include tobacco shops, head shops, nicotine shops, vapor shops and the like.
Substantial or significant portion shall be determined using the following factors:
Amount of floor area and basement space accessible to customers and allotted to the sale or consideration of cigarettes, electronic cigarettes, pipes, vape pens, vapors, e-liquids, or other like substances of any type, generally, or as compared to the total floor area and basement space accessible to customers; and/or
Number of cigarettes, electronic cigarettes, pipes, vape pens, vapors, e-liquids, derivatives, or other like substances stock-in-trade or of any type accessible to customers generally, or as compared to total stock accessible to customers; and/or
Revenues derived from cigarettes, electronic cigarettes, pipes, vape pens, vapors, e-liquids, or other like substances of any type, generally, or as compared to total revenues; and/or
Advertising devoted to cigarettes, electronic cigarettes, pipes, vape pens, vapors, e-liquids, or other like substances of any type, generally, or as compared to total advertising; and/or
Use of the establishment for cigarettes, electronic cigarettes, pipes, vape pens, vapors, e-liquids, or other like substances of any type, generally, or as compared to total use thereof.
However, notwithstanding the above factors, the following shall be conclusive in determining substantial or significant portion:
40% or more of floor area and basement space accessible to customers allotted to cigarettes, electronic cigarettes, pipes, vape pens, vapors, e-liquids, or other like substances of any type; and/or
40% or more of its stock-in-trade in cigarettes, electronic cigarettes, pipes, vape pens, vapors, e-liquids, or other like substances of any type; and/or
40% or more of its gross income derived from cigarettes, electronic cigarettes, pipes, vape pens, vapors, e-liquids, or other like substances; and/or
40% or more of its advertising is devoted to cigarettes, electronic cigarettes, pipes vape pens, vapors, e-liquids, or other like substances.
Any equipment, device or instrument that is primarily designed or manufactured for the smoking, chewing, absorbing, dissolving, inhaling, snorting, sniffing or ingesting by any other means into the body of smoking and tobacco products or cannabinoid products. Items or devices classified as tobacco or cannabis paraphernalia include, but are not limited to, the following: pipes, punctured metal bowls, bongs, water bongs, electric pipes, e-cigarettes, e-cigarette juice, buzz bombs, vaporizers, hookahs, and devices for holding burning material. Lighters and matches are excluded from the definition of tobacco or cannabis paraphernalia.
§ 270-100 Moratorium.
Pursuant to the statutory authority vested in the Village to regulate and control land use and to protect the health, safety and welfare of its residents, the Board of Trustees of the Village of Ossining adopts this moratorium on the review and approval of new, as of yet unfiled and any and all pending applications for all land use approvals, including site plan approvals, subdivision plats, special use permits, and variances (hereinafter "land use approvals") involving the construction of cannabis dispensaries, vape shops, smoke shops, vape lounges and vape consumption businesses in the Village of Ossining. As of the effective date of this moratorium:
A.
Neither the Planning Board nor the Board of Architectural Review shall accept any application, grant any approval to, or continue the review of a subdivision plat, site plan, or other application that would have as a result the permitting, construction and/or development of cannabis dispensaries, vape shops, smoke shops, vape lounges and vape consumption businesses.
B.
The Zoning Board of Appeals shall neither accept nor continue to review any application or grant any approval for a variance that would have as a result the permitting, construction and/or development of cannabis dispensaries, vape shops, smoke shops, vape lounges and vape consumption businesses.
C.
The Historic Preservation Commission shall neither accept nor continue to review any application for a certificate of appropriateness which would have as a result the permitting, construction and/or development of cannabis dispensaries, vape shops, smoke shops, vape lounges and vape consumption businesses.
D.
The Board of Trustees shall neither accept nor continue to review any application for a special use permit that would have as a result the permitting, construction and/or development of cannabis dispensaries, vape shops, smoke shops, vape lounges and vape consumption businesses.
§ 270-101 Duration of moratorium.
The moratorium shall be effective for eight months from the effective date of this article.
§ 270-102 Early termination or extension of the moratorium.
A.
Should the Board of Trustees determine that no new local law which addresses the substantive issues set forth herein needs to be enacted prior to the date that the moratorium expires, then the moratorium imposed by this article shall expire on the date such determination is made by resolution of the Board of Trustees.
B.
In the event that any new local law which addresses the substantive issues set forth herein, should be enacted and adopted by the Board of Trustees prior to the date that the moratorium imposed herein expires, then the moratorium shall expire on the date the new local law takes effect pursuant to Section 27 of the Municipal Home Rule Law.
C.
In the event that more than six months have passed since the implementation of this moratorium, and it shall be determined by the Board of Trustees that an extension of this moratorium is required, then the Board of Trustees by resolution may extend this moratorium as it deems necessary in order to fulfill the purposes noted in § 270-98 for no more than four additional months from the date of the original intended expiration of this article.
§ 270-103 Hardship.
A.
Should an applicant suffer any extraordinary hardship due to the enactment and application of this moratorium, then the applicant may apply to the Board of Trustees for a variance from strict compliance with this article upon submission of proof of such extraordinary hardship. For purposes of this article extraordinary hardship shall not be considered:
B.
An application for an exception based upon extraordinary hardship shall be filed with the Village Clerk including a fee of $500 for each tax map parcel claimed to be subject to extraordinary hardship. The application shall include a recitation of the specific facts that are alleged to support the claim of extraordinary hardship and shall contain such other information and/or documentation as the Board of Trustees requires to be fully informed with respect to the application.
C.
A public hearing on any application for an exception to the moratorium shall be held by the Board of Trustees no later than 45 days after receipt of a complete application. The Board of Trustees shall note in the resolution calling for the public hearing that the application is complete.
D.
In reviewing an application for an exception from the moratorium based upon a claim of extraordinary hardship, the Board of Trustees shall consider the following criteria:
(1)
The extent to which the proposed development activity would cause significant environmental degradation, adversely impact existing development in the affected zoning districts, be detrimental to public health, comfort or safety concerns and/or have a negative impact on the Village of Ossining.
(2)
Whether the moratorium will expose an applicant to substantial monetary liability to a third person or would leave the applicant completely unable, after a thorough review of alternative solutions, to have a reasonable alternative use of the property.
(3)
The extent to which actions of the applicant were undertaken in good faith belief that the proposed development would not lead to significant environmental degradation, adversely impact existing development in the area, have an adverse impact on public health or safety, and/or have a negative impact upon the Village of Ossining.
(4)
Compatibility of the proposed application with the existing land use and character of the area in general proximity to the subject of the application, and its effect upon aesthetic resources of the community.
(5)
Such other considerations and issues as may be raised by the Board of Trustees.
E.
At the public hearing the applicant and any other parties wishing to present evidence with regard to the application shall have an opportunity to be heard. The Board of Trustees shall, within 30 days of the close of the public hearing, render its decision in writing granting, denying, granting in part or denying in part the application for a hardship waiver. Should the Board of Trustees determine that an applicant will suffer an extraordinary hardship if the moratorium is strictly applied to a particular property, then the Board of Trustees shall revise the moratorium to the minimum extent necessary to provide the applicant relief from strict compliance with this article.
§ 270-104 Conflict with state statutes and authority to supersede.
It is the intent of this article to supersede any statutes or regulations which may be inconsistent with the provisions herein. To the extent that any provisions of this article are in conflict with or are construed as inconsistent with the provisions of the Village Law or General Municipal Law, this article supersedes, amends and takes precent consistent with the Village's home rule powers pursuant to the Municipal Home Rule Law Section 10, New York Statute of Local Governments Sections 10(1) and (7) and Article IX of the New York State Constitution.
A.
Related to Land Use Approvals for cannabis dispensaries, vape shops, smoke shops, vape lounges and vape consumption businesses, this article supersedes Village of Ossining Code Chapter 270 (Zoning). This article suspends and stays the running of time periods for processing, acting upon, holding hearings on, making decisions and taking action on such applications provided for in those chapters.
B.
This article supersedes any inconsistent provision of the General Municipal Law, Village Law or Village of Ossining Code relating to the authority of the Zoning Board of Appeals to grant variances or other relief from the Village's zoning code.
C.
Any inconsistent provisions of the Village Law and Village of Ossining Code requiring that the Planning Board/Board of Architectural Review, Historic Preservation Commission or Board of Trustees hold hearings and act upon applications within specified time periods are superseded by this article.
§ 270-105 Penalties.
A.
Any person, firm, corporation or other entity that shall take any action in violation of this article shall be guilty of a violation and upon conviction thereof shall be subject to a fine of not less than $500 and not more than $2,000 for an individual and a fine of not less than $2,000 and not more than $5,000 for a corporation, association or other entity or to a term of imprisonment not to exceed 15 days, or both. Each and every week that the violation continues shall constitute a separate violation.
B.
Any person, firm, corporation or other entity that violates this article shall be liable to pay a civil penalty of $1,000 for each day or part thereof during which the violation continues. The civil penalty shall be recoverable in an action brought by the Corporation Counsel. In addition to the aforementioned penalty, the person, firm, entity or corporation found to have violated this article shall be liable for all reasonable attorneys' fees, costs and disbursements incurred by the Village to recover the civil penalty.
C.
Compliance with this article also may be compelled and violations restrained by order or by injunction of a court of competent jurisdiction in an action brought by the Corporation Counsel on behalf of the Village.
D.
Loss of profit. Where any person, firm, entity or corporation has gained a profit as a result of the violation of this article, the court, in lieu of imposing the civil penalty in Subsection B, may order the party to pay an amount fixed by the court not to exceed double the amount of the profit from the violation. The court shall make a finding as to the amount of profit after a hearing.
E.
If the civil penalty or loss of profit awarded to the Village by the court is not paid in full within 30 days from the date of assessment by the court such award shall be included on the next annual tax levy for the involved tax lots.
§ 270-106 Enforcement.
This article shall be enforced by the Village's Building Inspector, Assistant Building Inspector and Code Enforcement Officers.
§ 270-107 Severability.
If any clause, sentence, paragraph, or section of this article shall be adjudged to be invalid by any court o competent jurisdiction, such judgment shall not affect, impair or invalidate any other part of this article, or the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph or section thereof directly involved in the controversy in which such judgment shall have been rendered.