Smithtown City Zoning Code
ARTICLE XII
Board of Appeals
§ 322-80 General provisions.
[Amended 8-25-1987; 3-29-2007; 6-24-2010; 12-15-2020 by L.L. No. 11-2020; 3-20-2025 by L.L. No. 4-2025]
A.
The Town Board shall appoint a Board of Appeals consisting of five members, shall designate its Chairperson and may provide for compensation to be paid to experts, clerks and a secretary and provide for such other expenses as shall be necessary and proper not exceeding the appropriation made by the Town Board for such purpose.
B.
Each member of the Board of Zoning Appeals shall serve for a term of two years. This subsection is adopted pursuant to Municipal Home Rule Law § 10 and is specifically intended to supersede the provision of Town Law § 267, Subdivisions (4) and (5), that establish terms of members of the Board of Zoning Appeals. All local laws, ordinances, or parts thereof that are in conflict with any part of this subsection are hereby repealed. This subsection shall take effect immediately upon its filing in the office of the Secretary of State.
C.
The Board of Appeals shall have the following powers:
(1)
To grant or deny use variances;
(2)
To grant or deny area variances;
(3)
To interpret on appeal the meaning of provisions of this ordinance;
(4)
To interpret on appeal the location of boundaries of districts depicted on the Building Zone Map;
(5)
To decide on applications for special exception uses as indicated in the Table of Use Regulations;
(6)
To decide on applications for certificates of existing use;
(7)
To vary the requirements of the County Commissioner of Public Works regarding the approval of building permits, curb cuts, and subdivision plats pursuant to § 239-k of the General Municipal Law;
(8)
To reverse, affirm or modify the decision of the administrative officer having charge of the issue of permits for buildings pursuant to § 280-a of the Town Law;
(9)
To call upon any department, agency or employee of the Town for such assistance as shall be deemed necessary and as shall be authorized by the Town Board; and
(10)
To impose such reasonable conditions and restrictions in the granting of applications as are directly related to and incidental to the proposed use of the property.
D.
The Board of Appeals shall adopt such rules of procedure, not inconsistent with the provisions of the Town Law and local ordinances, as it may deem necessary to the proper performance of its duties and the proper exercise of its powers.
E.
Alternate membership.
(1)
There shall be two alternate members of the Board of Zoning Appeals. Said alternates shall be appointed by resolution of the Town Board for a term of two years and shall be compensated per diem at the rate established by the Town Board. Whenever it appears that a member of the Board of Zoning Appeals is unable to participate in an application due to a conflict of interest, disability, or illness the Chairman of the Board of Zoning Appeals may substitute such member with an alternate member for the purpose of deciding the application. Alternates shall be designated to serve on a rotating basis by the Chairman, and the designation shall be duly entered into the official minutes of the meeting at the time such designation is made. Once designated, the alternate member shall possess all of the powers and responsibilities of such member of the Board.
(2)
All provisions of law relating to Board of Zoning Appeals member training and continuing education, conflicts of interest, eligibility, vacancy in office, removal, and service on other boards, shall also apply to alternate members.
(3)
This subsection is adopted pursuant to Municipal Home Rule Law § 10 and is specifically intended to supersede the provision of Town Law § 267, Subdivision (11), relating to alternate members of Zoning Board of Appeals insofar as it is inconsistent with such subsection. This subsection shall take effect immediately upon its filing in the office of the Secretary of State.
§ 322-81 Procedure.
[Amended 10-20-1964; 2-23-1965; 2-25-1969; 3-4-1975; 4-22-1975; 6-8-1976; 9-8-1981; 12-22-1981; 4-20-1982; 1-25-1983; 6-25-1985; 10-21-1986; 8-25-1987; 1-3-1989; 7-9-1991; 10-6-1992; 3-8-1994; 9-13-1994; 2-22-1999; 5-8-2007; 6-24-2010; 6-2-2015; 12-11-2018; 11-17-2022 by Res. No. 2022-1077; 2-6-2024 by Res. No. 2024-166; 6-11-2024 by Res. No. 2024-605; 3-20-2025 by Res. No. 2025-276; 5-22-2025 by Res. No. 2025-566]
A.
Applications for appeals or special exception uses shall be submitted in the form required by the Board and filed in the office of the Board.
(1)
There shall be submitted with the application an affidavit to be executed by all owners of record, contract vendees, lessors, lessees, sublessors, sublessees, contract lessors, contract lessees, contract sublessors, contract sublessees, holders of beneficial interest, contract holders of beneficial interest, holders of encumbrances and contract holders of encumbrances. Lending institutions licensed or franchised by the State of New York, public corporations and lessees, contract lessees, sublessees and contract sublessees of less than a whole interest in the land are excluded from the provisions of this subsection.
(2)
If the affiant is an individual, he/she shall set forth his/her name and street address.
(3)
If the affiant is a partnership, it shall set forth the name, street address and the nature of interest of each partner.
(4)
If the affiant is a corporation, it shall set forth the name and street address of each office, director and stockholder. It shall also set forth the name and street address of all persons to whom corporate stock has been pledged or with whom any agreement has been made to pledge said stock.
(5)
All affiants shall set forth the name and address of all persons, individuals, partnerships and/or corporations who are the holders of any instruments creating an encumbrance upon the property which is the subject of the application and shall also state the nature of the encumbrance.
(6)
All affiants shall state that, to the best of their knowledge, no person mentioned in their affidavit is a Town officer or employee or is related to a Town officer or employee, or if such is not the case, the affiant shall state the exceptions in full detail.
(7)
In the event that there is any change in any matter set forth in any affidavit submitted hereunder prior to the time a certificate of occupancy is granted to the subject premises, the affiant affected by such change shall file a supplemental affidavit within 48 hours after such change has occurred, giving the full details thereof. The other party affected by the change, if any, shall, within 48 hours after such change has occurred, also file an affidavit in compliance with the requirements of this subsection and shall thereafter be subject to all requirements set forth in this subsection.
(8)
The provisions of this subsection shall not apply to any applicant who is an individual or a tenant by the entirety seeking an area variance or an interpretation of any provision of this chapter with respect to residential property. Anything to the contrary notwithstanding, the Board of Zoning Appeals shall have the power to require full compliance with this subsection in any case wherein the required disclosure would be appropriate.
B.
The Board of Appeals shall fix a time and place for a public hearing thereon and shall provide for the giving of notice thereof as follows:
(1)
By publishing a notice in a paper of general circulation in the Town in accordance with the provisions of Town Law.
(2)
By requiring the applicant to erect a white-with-red-lettering sign or signs, measuring not less than 30 inches high and 40 inches wide, which shall be prominently displayed on the premises, facing each public street on which the property abuts, giving notice that an application for an appeal or special exception use is pending and the date, time and place where the public hearing will be held. The sign shall not be set back more than 10 feet from the property line and shall not be less than two nor more than six feet above the grade at the property line. The sign shall be made of fourteen-ply pressed board or other durable material. It shall be displayed for a period of not less than five days immediately preceding the public hearing date or any adjourned date. The filing of an affidavit, by the applicant, that this requirement has been complied with shall be deemed sufficient proof of compliance therewith.
(3)
By requiring the applicant to mail notices by certified mail, return receipt requested, to the owners of all properties within 200 feet of the exterior limits of the subject property, as shown on the latest assessment roll. Proof of receipt shall be submitted to the Board at the time of the hearing. Such notice shall be given not less than 14 days prior to the date of the hearing.
(4)
By mailing notices to the Long Island State Park Commission if any state park or parkway is within 500 feet of the property affected.
(5)
By mailing notices to the Suffolk County Planning Commission if within 500 feet of the subject property there is a state park or parkway; the boundary of a village or Town; the boundary of any existing or proposed county, state or federal park; the right-of-way of any existing or proposed county or state parkway, thruway, expressway, road or highway; the existing or proposed right-of-way of any stream or drainage channel owned by the county or for which the county has established channel lines; the existing or proposed boundary of any other county, state or federally owned land; or the Long Island Sound or any estuary of the Sound, in accordance with §§ A14-14 through A14-23 of the Suffolk County Administrative Code.
(6)
If the application is a use variance or a special exception, by mailing notices to the Clerk of the adjacent municipality if any such municipality is within 500 feet of the site. Such notice shall be given not less than 10 days prior to the hearing.
C.
The Director of Planning shall prepare an advisory report on the proposed use unless he makes a determination that no planning issue is involved. The report shall be part of the record. The report may evaluate the application with respect to the needs and growth pattern of the Town, the Comprehensive Plan and the adequacy of the site area and plan. It may also include recommendations on the arrangement of buildings, parking areas, and other pertinent features of the site plan.
D.
The Board shall not consider an application to review an earlier decision concerning the same property, except as a rehearing pursuant to § 267-a of the Town Law, unless there has been a significant change in the proposal or applicable laws.
E.
For applications to legalize an existing use or structure, the premises shall be brought into compliance with the decision rendered by the Board and Town Code within 90 days of the decision. For applications for a proposed use or structure, the applicant shall apply for the appropriate permits within 12 months of the decision and obtain a certificate of occupancy or certificate of compliance or be in compliance with the decision and Town Code within 12 months of the issuance of the permit. At the time of decision, the Board may modify these time limits when the Board finds that such modification does not hinder the purposes of this ordinance. After the decision, the Board may extend these limits upon written request if the Board finds that such extension will not hinder the purposes of this ordinance.
F.
Unless modifications are required by the Chief Building Inspector or the Board of Site Plan Review, the site shall be developed and maintained in accordance with the plans submitted with the application to the Board of Zoning Appeals.
G.
The fee for application to the Board of Zoning Appeals shall be the sum of the fees listed in the table below. All fees in the table are per request. Fees associated with applications to legalize existing uses or structures shall be 50% more than the fees that are otherwise applicable.
(1)
Fees for one-family residential uses.
Type | Fee |
|---|---|
Use variance | $3,000 |
Area variance | $250 |
Interpretation | $1,500 |
Special exception | $1,300 |
Certificate of existing use | $1,650 |
Request for rehearing (after decision rendered) | $300 |
Rehearing | Same as original application fee |
Extension of approval (6 months) | $250 |
Any other request | $300 |
(2)
Fees for uses other than one-family residential uses.
Type | Fee |
|---|---|
Use variance | $3,000 |
Area variance | $550 |
Interpretation | $3,000 |
Special exception | $3,000 |
Certificate of existing use (per request) | $3,000 |
Request for rehearing | $300 |
Rehearing | Same as original application fee |
Extension of approval (6 months) | $500 |
Any other request | $600 |
H.
No fee shall be required for any government entity.
§ 322-82 Special exception uses.
[Last amended 5-22-2025 by Res. No. 2025-566]
A.
No special exception use for which the Board of Appeals has original jurisdiction according to the Table of Use Regulations[1] shall be established or modified without prior approval by this Board. No premises on which a special exception use exists shall be modified without prior approval by the Board.
(1)
Such use shall be one which is specifically authorized as a special exception use in the district within which the subject site is located.
(2)
Every decision by the Board of Appeals granting a permit for a special exception use shall clearly set forth the nature and extent of such authorized use and any special conditions or safeguards to which it shall be subject as a result of the Board's findings. Violations of any such limitations or special conditions and safeguards shall be deemed a violation of this chapter, punishable under the provisions of § 322-105.
(3)
A special exception use for which a permit is granted by the Board of Appeals pursuant to the provisions of this article shall be construed to be a conforming use.
(4)
Any special exception use approved prior to an amendment of any of the general standards or specific conditions shall be deemed nonconforming with respect to the amendment only.
[1]
Editor's Note: The Tables of Use Regulations for various districts are located at the end of this chapter.
B.
Compliance required. No special exception use shall be approved unless the Board of Zoning Appeals determines that the use is in full compliance with the general standards required for all special exception uses as described in § 322-94G and the special standards for certain special exception uses as described in § 322-82C.
C.
Special standards for certain special exception uses.
(1)
Animal boarding; kennel; veterinarian; animal hospice; animal hospital. The following requirements shall be met:
(a)
Outside pens or exercise runs shall be maintained in the WSI Zone only, provided that such runs are located at least 100 feet from all property lines and at least 200 feet from any residence district. Such runs shall be enclosed on all sides by a wall or solid fence between five and six feet in height.
(b)
In the WSI District, side yard requirements shall be increased to 50 feet, unless the proposed building will comply with Subsection C(1)(c) below.
(c)
In the NB, CB, and SCB Districts, all treatment rooms, cages, pens, runs and kennels shall be maintained within a completely enclosed soundproof building. Structural plans and specifications shall bear the certification of an acoustical engineer verifying that the proposed structure will achieve the required sound transmission loss, pursuant to Chapter 207, Noise, of the Town Code.
(d)
Appropriate equipment shall be provided to absorb odors and adequate service provided for the removal of refuse.
(3)
Parking in a residence district adjacent to and for a use located in a business or industrial district. The following requirements shall be met:
(a)
The parking shall be on the same lot as the principal use, and the lot shall have been in existence since the date that the district boundary line that divides the lot was created.
(b)
The residential portion of the lot shall be unusable for residential purposes by reason of size, shape or the lack of suitable potential access.
(c)
The parking shall not extend more than 50 feet into the residence district.
(d)
A densely planted buffer zone shall be maintained on site along the edges of the parking that faces a residence district, except where facing other lots that are used principally for commercial purposes. The depth of this buffer shall be at least equal to the depth of the extension of the parking into the residence district or shall be 15 feet, whichever is greater.
(e)
The principal building shall conform to the floor area ratio, building coverage, height and parking requirements for the district in which the building is located.
(f)
In the St. James Central Business District, the parking shall not extend more than 150 feet from Lake Avenue.
(4)
In the PB District, for buildings having a gross floor area larger than 2,500 square feet, the following requirements shall be met:
(5)
Day camp. The following requirements shall be met:
(a)
The proposed use shall be on a site of no less than five acres with no less than 300 feet of street frontage.
(b)
There shall be no more than one camper or student for every 2,000 square feet of site area.
(c)
All buildings, structures and areas of organized activity, such as baseball diamonds, basketball courts, riding areas, swimming pools, etc., shall be located at least 100 feet from all property and street lines.
(d)
Off-street parking areas shall be located at least 50 feet from any property line.
(e)
No more than one permanent family dwelling unit shall be permitted on the subject premises, and said dwelling unit must comply with all the regulations and provisions of this chapter and other applicable ordinances of the Town of Smithtown as they pertain to the zoning district in which the subject premises is located.
(f)
No outdoor floodlighting or loudspeaker systems shall be permitted.
(g)
Only one sign, not larger than four square feet in area, shall be permitted.
(h)
Landscaping and fencing shall be provided as required by the Board of Appeals.
(7)
Filling station. The following requirements shall be met:
(a)
The site shall be at least 500 feet from any church, school, library, playground or similar place of public assembly. The site shall not be within the Local Waterfront Area or within 1,200 feet of the Nissequogue River or its tributaries. Sites shall be at least 1,200 feet from any existing filling station.
(b)
The use shall be on a site of not less than 20,000 square feet, with no less than 150 feet of street frontage on any public road.
(c)
The gross floor area shall not exceed 1,500 square feet, and the building shall not be more than one story in height.
(d)
A densely planted buffer area at least 50 feet deep shall be maintained adjacent to residence districts or uses.
(e)
Pump islands shall be at least 25 feet from all property lines and buildings. Except as otherwise provided pursuant to § 322-82C(13), no fuel shall be stored above ground.
(f)
Outdoor storage or display of merchandise and outdoor repair work shall not be permitted at any time. No overnight outdoor storage or parking of vehicles shall be permitted.
(g)
The premises shall not be used for the sale, rent or display or vehicles, boats or similar articles.
(i)
No retail sales over 1,250 square feet in area shall be permitted:
[1]
Accessory convenience sales, provided that the following conditions are met:
[a]
No repair bays are on site.
[b]
The gross floor area for a filling station with accessory convenience sales, as defined by § 322-3B, shall not exceed 1,250 square feet in gross floor area.
[c]
The parking shall be sufficient for the use but in no case less than the requirement for a retail store of the same floor area.
(8)
Horsemanship school or stable. The following requirements shall be met:
(a)
The proposed use shall be on a site of not less than five acres, with no less than 300 feet of street frontage. In determining the area, no portion of the premises less than 150 feet in width shall be included.
(b)
The number of horses stabled on the site shall be no more than three for each acre of lot area.
(c)
The property shall not be used for a livery stable, dude ranch or amusement park, nor shall any horse or pony rides be sold or advertised for sale.
(d)
The site plan for the proposed use shall show the location of existing and proposed structures, riding areas, driveways and parking areas.
(e)
Stables shall be located at least 60 feet from front, side and rear property lines; provided, however, that in cases involving structures existing at the effective date of this chapter, the Board of Appeals may permit modifications of these restrictions.
(f)
No living quarters other than one one-family dwelling shall be constructed or maintained on the premises, and no living quarters shall be permitted in any building in which the horses are stabled.
(g)
No outdoor floodlighting or loudspeaker system shall be permitted.
(h)
Only one sign, not larger than four square feet in area, shall be permitted.
(i)
Landscaping and fencing shall be provided around the perimeter of the premises as required by the Board of Appeals.
(j)
Special exception uses authorized under this category shall be limited to a lifetime of not more than five years. No authorization or renewal of a previous authorization shall be granted by the Board of Appeals pursuant to this chapter if the Board finds that the development of land adjacent to the site has advanced to a degree where the health, safety or general welfare of the public is endangered by the proposed use.
(9)
Day-care center and nursery school. The following requirements shall be met:
(a)
In residence districts, the use shall be located only on a lawfully existing day camp or on a site of at least one acre in area, of a hospital, nursing home, church or school.
(b)
A passenger loading/discharge zone of adequate size shall be provided in a suitable on-site location so that pedestrians will not have to cross drives or aisles in order to reach their destinations.
(c)
The outside recreation area shall be set back from hazardous uses so as to comply with the United States Department of Housing and Urban Development standards for siting urban development with respect to hazardous commercial/industrial facilities.
(d)
The building and outdoor play area shall not be permitted in the required front yard or within 50 feet of any residential lot.
(e)
The outdoor play areas shall be adequately protected from traffic and shall be set back at least 10 feet from all parking areas.
(f)
The use of the outdoor play area shall be limited to 8:00 a.m. to 5:00 p.m. unless otherwise modified by the Board.
(10)
(Reserved)
(11)
Membership club, nonprofit. The following requirements shall be met:
(a)
In residential districts:
[1]
The proposed use shall be on a site of not less than two acres with not less than 200 feet of the street frontage.
[2]
All buildings and structures shall be located at least 60 feet from the front, side or rear property lines. The Board of Appeals may permit modification of this restriction involving existing structures.
[3]
The total building area shall not exceed 10% of the total lot area.
[4]
Off-street parking areas shall be located at least 30 feet from all property lines and shall be screened from adjacent properties by appropriate landscaping.
[5]
No living quarters other than one dwelling unit for the caretaker or manager and his family shall be permitted.
[6]
No outdoor floodlighting or loudspeaker system shall be permitted.
[7]
Only one sign, not larger than four square feet, shall be permitted. No banners or attention-getting devices shall be permitted.
[8]
The exterior of the building shall be designed, if new, or maintained, if existing, to present the general appearance of a residence, and the site shall be landscaped in the same manner.
(12)
(Reserved)
(13)
Propane exchange. The following requirements shall be met:
(a)
This land use shall be permitted only as an accessory use to filling stations, fuel storage and distribution, and nurseries.
(b)
The site shall be at least 500 feet from any church, school, theater, recreation area or similar place of public assembly.
(c)
All cylinders shall be stored in sturdy metal cages finished in a dark color so as to be inconspicuous. Bollards which meet the design requirements of the Board of Site Plan Review shall be constructed to protect the cages from vehicles.
(d)
The maximum storage capacity on the site shall not exceed 200 gallons.
(e)
All cylinders shall be set back at least 50 feet from highways, residence districts, and lots used for residence, and six feet from adjacent lots, parking areas and driveways.
(14)
Repair garage. The following requirements shall be met:
(a)
The proposed use shall be on a site of not less than 20,000 square feet, with no less than 100 feet of frontage on each public street. The gross floor area shall not exceed 25% of the lot area.
(b)
The site shall not be within 500 feet of any church, school, library, playground or any other similar place of public assembly.
(c)
The sale of fuel, either wholesale or retail, shall not be permitted.
(d)
A densely planted buffer zone, at least 50 feet deep, shall be maintained adjacent to any residence district.
(e)
Outdoor storage or display of vehicle parts, dismantled vehicles, tires and similar accessories and outdoor repair work shall not be permitted at any time. Overnight outdoor storage and parking of vehicles shall be limited to an area less than 3,500 square feet, which shall be enclosed by a six-foot-high opaque fence.
(f)
Premises shall not be used for the sale, rent or display of motor vehicles, mobile homes, boats or similar articles.
(g)
The only sale or service permitted shall be for commodities related to automotive needs unless such sale or service is licensed as a coin-operated machine under § 322-28 of this chapter.
(h)
In the WSI and HI Districts, the sale of motor vehicle parts shall be permitted as an accessory use, provided that the floor area used for the sale display and storage of parts shall not exceed 49% of the floor area used for the repair of vehicles.
(15)
Outdoor storage.
(a)
The area of outdoor storage shall not exceed the gross floor area.
(b)
The minimum setback from streets, parks, parkways, and residence districts shall be 100 feet. This area shall be densely planted with trees and shrubs to screen the outdoor storage from views off-site.
(c)
The maximum height of outdoor storage shall not exceed six feet; except for vehicles, which shall not exceed 14 feet, and storage containers and shipping containers, which shall not exceed 10 feet.
(d)
All outdoor storage shall be enclosed by a six-foot-high solid wood fence on the perimeter of the outdoor storage area.
(e)
No loading or unloading shall be conducted between 6:00 p.m. and 8:00 a.m.
(16)
Swimming or boat club. The same requirements as stated for membership club, nonprofit, shall be met, except that:
(a)
The proposed use shall be on a site of not less than two acres with no less than 100 feet of street frontage.
(b)
All buildings, structures and areas of organized activity, such as picnic areas or terraces, game courts, swimming pools, etc., shall be located at least 100 feet from all property or street lines.
(c)
All areas of organized activity shall be screened by landscaping from adjacent properties.
(d)
Boat berth facilities shall not have an aggregate berth width in excess of the length of the available water frontage.
(17)
(Reserved)
(18)
Trucking station. The same requirements as stated for filling station shall be met, except that the requirement set forth in Subsection C(7)(c), (f) and (g) above shall not be applicable to a trucking station, and, in addition, the Board of Appeals shall provide for the adequate muffling of such noises as diesel engine starters and the overnight operation of refrigeration units so that they shall not create a nuisance on adjacent properties.
(19)
Temporary living quarters for parent. The following requirements shall be met:
(a)
The residents of the proposed use shall be members of the immediate family of the residents of the main dwelling. Members of the immediate family shall include: parents, children, siblings, grandparents or grandchildren related by blood, adoption, marriage or foster parent-child relationship.
(c)
(Reserved)
(d)
The floor plan submitted with the application shall show that it is economical and practical to convert the use back to a single family residence and the applicant shall file with the deed in the Suffolk County Clerk's office a covenant agreeing to comply with all of the special exception requirements.
(e)
The proposed use shall be for an initial three year period, renewable every three years by the Chief Building Inspector, who shall inspect the premises to determine if the residents and physical conditions of the premises are the same as approved. Special exception approval shall terminate upon such change, the separate cooking facilities shall be removed and access to the main residence shall be restored.
(20)
(Reserved)
(21)
(Reserved)
(22)
Harboring or stabling of horses or ponies in the R-15, R-10 and R-10S Districts. The following requirements shall be met:
(b)
A signed affidavit shall be submitted to the Board to the effect that, at the termination of the use, the fenced runs, barns, stables or other accessory buildings for horses or ponies shall be removed and the grounds shall revert to its original use.
(c)
The proposed use shall be for an initial three-year period, renewable every three years by the Chief Building Inspector. At such time the Chief Building Inspector will conduct an inspection of the site to determine that the lot area and stabling facilities are adequate to assure that no adverse effects have occurred to adjoining properties, i.e., noise, smell, vermin, poor property maintenance or hazardous health conditions.
(d)
Each renewal application shall be subject to a filing fee of $100.
(23)
Accessory apartment dwelling units. The following requirements shall be met:
(a)
The apartment dwelling units shall not be located on the first floor of the building.
(b)
No apartment dwelling shall consist of more than two bedrooms.
(c)
A suitable means of access to the dwelling unit shall be provided, which shall be sufficiently safe and attractive for pedestrian use.
(d)
A smoke detector, fire alarm or sprinkler system shall be provided.
(e)
There shall be adequate provision for off-street parking according to good practice, but not less than the requirements specified in this chapter, unless the Board determines that there is adequate available off-street parking in a public parking lot that is located within 200 feet walking distance of the access to the apartment dwelling unit. Notwithstanding § 322-82B(8), the Board of Appeals may permit a reduction in the number of parking and truck-loading spaces, provided that the Board finds that the general standards described in § 322-83B are met, the building and site design conform to the development plan for the central business district in which the site is located and that the number of parking stalls shall not be less than 60% of the requirements for the uses as described in Article IX.
(f)
Accessory apartment dwelling units shall only be permitted on premises containing only the following uses: a retail store or shop, personal shop, office, bank, funeral home, restaurant, tavern, bar, inn or shop for custom work and making articles sold on the premises.
(g)
Permission for the proposed accessory use shall be for an initial three-year period, renewable every three years by the Board of Appeals, which shall determine whether or not the use is in compliance with these requirements. A covenant in recordable form shall be submitted to the Board of Appeals by the property owner, agreeing to remove the residential use upon termination of the permit. Upon the property owner's failure to renew within 60 days of the termination of the three-year period, the permission of the Board of Zoning Appeals shall automatically terminate.
(24)
Home occupation. Except for home occupations and home professional offices, as defined in § 322-3, that were in existence prior to October 1984, and which were in compliance with the provisions of the Building Zone Ordinance at that time, the following requirements shall be met:
(a)
The home occupation is to be an accessory use so located and conducted that the use would not be evident to neighbors.
(b)
Nuisances and hazards.
[1]
The use shall not create any undue noise, dust, vibration, odor, smoke, glare, electrical interference, fire hazard or any other hazard or nuisance.
[2]
The use shall require no electrical or mechanical equipment which creates visible or audible interference in radio or television receivers or causes fluctuations in line voltage outside the dwelling unit or which creates noise not normally associated with residential uses.
[3]
The use shall not introduce any odorous, hazardous, noxious or toxic fumes into the air.
(d)
There shall be no outdoor storage of supplies or finished products or any equipment used in the home occupation.
(e)
There may be one separate outside entry or exit constructed specifically for or used exclusively by the office portion of the home.
(f)
The home occupation use may not exceed 400 square feet of the floor area of the residence.
(g)
The conduct of any home occupation shall not cause the use of either on-street parking facilities or publicly or privately owned parking fields, nor shall it cause the use of more than two on-site parking spaces.
(h)
To the extent that there is any sale or purchase of any product as a primary function of the home occupation, no shipping of materials or delivery of that product utilizing any commercial truck, van or other such vehicle shall occur on or from the premises or adjacent to the premises; nor shall there be utilized any commercial truck, van or other such vehicle for the purpose of pickup or delivery of materials or the product produced by the home occupation by the applicant and/or his clients or customers.
(i)
There shall be only one home occupation use allowed per residence.
(25)
Outdoor dining area. The following regulations shall be met:
(a)
The outdoor dining area shall not be located within 150 feet of any residence district, unless the principal building is situated between the proposed use and the residence district.
(b)
The outdoor dining area shall be set back from the curbline at least 10 feet in the CB District and 40 feet in other districts.
(c)
If the outdoor dining area exceeds 1,000 square feet, parking shall be provided at the same rate as the principal use.
(d)
The outdoor dining area may be covered. No fences or walls higher than four feet shall be permitted.
(e)
From October 31 to April 1 all furniture shall be stored indoors.
(f)
The outdoor dining area shall not be used between 11:00 p.m. and 7:00 a.m. The Board may permit the use to operate later into the night only if the Board finds that the use will not impact any residential uses.
(g)
Outdoor entertainment or loudspeakers shall not be permitted.
§ 322-83 Variances.
[Amended 1-23-1973; 11-12-1974; 2-13-1990; 11-24-1992; 6-24-2010]
A.
Use variances. Pursuant to § 267-b(2) of the Town Law, no use variance shall be granted by the Board of Zoning 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 Board that for each and every permitted use under the zoning regulations for the particular district where the property is located:
(1)
The applicant cannot realize a reasonable return, provided that lack of return is substantial as demonstrated by competent financial evidence:
(2)
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;
(3)
That the requested use variance, if granted, will not alter the essential character of the neighborhood; and
(4)
That the alleged hardship has not been self-created.
B.
Area variances. Pursuant to § 267-b(3) of the Town Law, in making its determination, the Board of Zoning Appeals shall take into consideration the benefit to the applicant if the variance is granted, as weighted against the detriment to the health, safety and welfare of the neighborhood or community by such grant, and:
(1)
Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance;
(2)
Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;
(3)
Whether the requested area variance is substantial;
(4)
Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and
(5)
Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the Board, but shall not necessarily preclude the granting of the area variance.
C.
The Board shall grant the minimum variance that it shall deem necessary and adequate and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.
D.
In cases where the lot does not meet the area and/or frontage requirements, the Board shall not grant more than three variances.
E.
The Board may authorize the change of a certificate of existing use so as to permit a use not otherwise permitted, provided that the Board determines that the change would be beneficial to the community.
F.
In cases where the appeal is in the form of a request for an interpretation of a word or words, the Board shall consider the intent of the provision in question and also the definition of terms as described in the Town Code, professional publications, and standard references.
G.
In cases where the appeal is in the form of a request for a determination of the precise location of a district boundary line, the Board shall consider public records on file in the Town.
H.
Development in flood hazard zones.
(1)
In passing upon such applications, the Board shall consider all technical evaluations, all relevant factors, standards and specified in other sections of this chapter and:
(a)
The danger that materials may be swept onto other lands to the injury of others.
(b)
The danger to life and property due to flooding or erosion damage.
(c)
The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner.
(d)
The importance of the services provided by the proposed facility to the Town.
(e)
The necessity to the facility of a waterfront location, where applicable.
(f)
The availability of alternative locations for the proposed use that are not subject to flooding or erosion damage.
(g)
The compatibility of the proposed use with existing and anticipated development.
(h)
The relationship of the proposed use to the Comprehensive Plan and floodplain management program of that area.
(i)
The safety of access to the property in times of flood for ordinary and emergency vehicles.
(j)
The costs to local governments and the dangers associated with conducting search and rescue operations during periods of flooding.
(k)
The expected heights, velocity, duration, rate of rise and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site.
(l)
The costs of providing governmental services during and after flood conditions, including search and rescue operations, maintenance and repair of public utilities and facilities such as sewer, gas, electrical and water systems and streets and bridges.
(2)
Generally, variances may be issued for new construction and substantial improvements to be erected on a lot of 1/2 acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, provided that the items in § 322-83H(1)(a) through (l) have been fully considered.
(3)
Variances may be issued for the repair or rehabilitation of historic structures upon determination that:
(4)
Variances may be issued for new construction and substantial improvements and for other development necessary for the conduct of a functionally dependent use, provided that:
(5)
Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.
(6)
Variances shall be issued only upon receiving written justification of:
(a)
A showing of good and sufficient cause.
(b)
A determination that failure to grant the variance would result in exceptional hardship to the applicant.
(c)
A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety or extraordinary public expense, create nuisances, cause fraud on or victimization of a public or conflict with existing local laws or ordinances.
(7)
Any applicant to whom a variance is granted for a building with the lowest floor below the base flood elevation shall be given written notice over the signature of a Clerk to the Board that the cost of flood insurance will be commensurate with the increased risk resulting from lowest-floor elevation.