[HISTORY: Adopted by the Town Board of the Town of Batavia 7-18-2001
by L.L. No. 3-2001. Amendments noted where applicable.]
The Town Board of the Town of Batavia recognizes that the proper storage
or disposal of unregistered, abandoned, dismantled or partially dismantled
automobiles, as well as other large scrap objects, is in the overall best
interests of the residents of the Town of Batavia in order to avoid potential
health hazards or nuisances, protect property values in the community and
provide for a pleasing visual landscape. The purpose of this chapter is to
provide for the uniform regulation of junkyards and used material collection
or processing operations. It is not intended to prevent the operation of such
a business or to be interpreted to impose unrealistic restrictions on any
other type of business; rather, it seeks to allow such uses of land to exist
in harmony with surrounding land uses and to be of service and assets to the
community.
As used in this chapter, the following terms shall have the meanings
indicated:
Dismantling operations necessary to repair, as well as the actual
repair itself, of the vehicle, machine or equipment of the customer of a junkyard
operator.
Dismantling operations performed on a machine, vehicle or piece of
equipment in which the components of the vehicle or machine are removed and
used (or stored) for their own intrinsic value rather than as a part of the
entire vehicle, equipment or machine. The operations render the vehicle, equipment
or machine, as a whole, inoperable and are performed solely because of the
value of the parts or components, rather than of the whole.
An area of land, including buildings thereon, on or in which metal,
automobiles, waste paper, rags, household debris, tin cans and other materials
are collected, stored, processed, dismantled and/or sold.
The owner of land upon which a junkyard is located, his tenant, associates
or assignees responsible for the operations and conduct of business in the
junkyard.
A title owner, including a corporation, of real property, including
a mobile home park within the Town of Batavia, New York.
Piling two or more vehicles, machines, pieces of equipment or other
materials on top of one another to make use of vertical space rather than
horizontal space.
A person, firm or corporation leasing real property from a person.
The following are conditions constituting a junkyard:
A.Â
The storage or abandonment of waste paper, rags, scrap
metal and/or discarded materials or the collection, storage, salvage or abandonment
of machinery or vehicles not in operable condition by any person.
B.Â
The allowance, with or without permission, by a person
of the storage or abandonment of waste paper, rags, scrap metal and/or discarded
materials for the collection, storage, salvage or abandonment of machinery
or vehicles not in operable condition on real property owned by the person's
tenant or other leaseholder of real property.
C.Â
The storage or deposit of more than two unregistered,
disabled, dismantled or partly dismantled vehicles (whether or not dismantled
for repair), equipment, machines or material or comparable volume not stored
in a completely enclosed structure shall constitute a junkyard.
The following conditions are hereby excluded from the definition of
a junkyard.
A.Â
Unlicensed vehicles in operating condition stored by
or for the owner while the owner is:
B.Â
Seasonal vehicles or machinery during their off-season
if kept in a location not visible from any road, street or highway, when practicable;
otherwise, the same must be stored in a neat and orderly fashion.
C.Â
Vehicles or machinery used on the premises for the purpose
of conducting a business or industry.
D.Â
Operable vehicles by an approved auto or comparable agency
in business or industrial districts.
E.Â
Maximum of two customized or modified vehicles in operable
condition. (All modifications must be performed in a fully enclosed structure.)
F.Â
By-products or waste generated in the natural course
of running an on-site operation which is a necessary part of the business
being conducted and which is being temporarily stored (for a maximum of six
months) for future disposal in a sanitary manner as determined by the Genesee
County Health Department and/or the New York State Department of Environmental
Conservation.
A.Â
Junkyards shall only be located in General Industrial
Use Districts (MR Districts) with the issuance of a special use permit.
B.Â
The operator of a junkyard shall be issued a special
use permit by the Town Board of the Town of Batavia according to the provisions
of this chapter.
C.Â
Application for a special use permit shall be made in
writing to the Zoning Enforcement Officer of the Town of Batavia by the landowner
on whose land a junkyard is proposed to be located. If someone other than
the owner is desirous of obtaining said permit, the landowner shall join in
said application indicating in writing his consent to the intended use of
said property.
D.Â
In applying to the Zoning Enforcement Officer for said permit, the applicant shall furnish the Zoning Enforcement Officer with proof of payment of fees as provided by § 138-11, an aerial photograph on a scale of one inch equals 660 lineal feet (or on such other scale as shall be approved by the town's Zoning Enforcement Officer) of the proposed site on which the boundaries of the tract to be used as a junkyard are clearly delineated, a written description of the land to be included within the junkyard and shall specify in writing in map form the proposed location by street or road, required setbacks, fire lanes and all adjoining property owners. The map required shall be drawn on a scale of not less than one inch equals 100 feet. In addition, the applicant may supply any written statements he wishes to accompany said other documents. The aerial photograph, written description of the land and accompanying maps and statements shall then become part of the application record.
E.Â
The Zoning Enforcement Officer shall then review the
application to be certain that the proposed location is not within an established
district restricted against such use or otherwise contrary to the prohibitions
of the Town of Batavia Zoning Ordinance. He shall also examine the aerial
photographs, written description of the land to be included within the junkyard,
map, statement and application to be certain that they conform to the requirements
of this chapter. Upon being satisfied that the application is in proper order,
the Zoning Enforcement Officer shall refer the matter to the Batavia Town
Board for a public hearing.
A hearing on the application shall be held by the Town Board not less
than two nor more than four weeks from the date of the receipt of the completed
application record from the Zoning Enforcement Officer. Notice of the hearing
shall be given to the applicant and shall be published once in the official
newspaper of the town, which publication shall be not less than seven days
before the date of the hearing.
At the time and place set for the hearing, the Town Board shall hear
the applicant and all other persons wishing to be heard on the special use
permit to operate, establish or maintain the junkyard. In considering such
application, it shall take into account the suitability of the applicant with
reference to his ability to comply with the fencing requirements and all other
requirements of this chapter, to any record of convictions for any type of
larceny or receiving of stolen goods and to any other matter within the purposes
of this section.
At the time and place set for the hearing, the Town Board shall hear
the applicant and all other persons wishing to be heard on the application
for a special use permit on the location of the junkyard. In passing upon
the same, it shall take into account, after proof of legal ownership and right
to such use of the property by the applicant, the nature and development of
surrounding property, such as the proximity of churches, schools, homes, hospitals,
public buildings or other places of public gathering, and whether or not the
proposed location can be reasonably protected from affecting the public health
and safety by reason of offensive or unhealthy odors, smoke or other causes.
At the hearing regarding location of the junkyard, the Town Board shall
take into account the clean, wholesome and attractive environment which is
hereby declared to be of vital importance to the continued general welfare
of its citizens by considering whether or not the proposed location can be
reasonably protected from having an unfavorable effect thereon. In this connection
the Town Board may consider collectively the type of road servicing the junkyard
or from which the junkyard may be seen, the natural or artificial barriers
protecting the junkyard from view, the proximity of the proposed junkyard
to established residential and recreational areas or main access routes thereto,
as well as the reasonable availability of other suitable sites for the junkyard.
A.Â
After hearing the Town Board shall, within 45 days, make
a finding as to whether or not the application should be granted, giving notice
of its finding to the applicant by mail, postage prepaid, to the address given
on the application. If approved, the special use permit shall be forthwith
issued by the Batavia Town Board, to remain in effect until the following
July 1. Approval shall be personal to the applicant and not assignable or
transferable.
B.Â
Special use permits shall be renewed thereafter on the
first day of July of each year upon payment of the annual special use permit
fee as follows:
(1)Â
An application for renewal in the form of an original application under § 138-5C of this chapter shall be filed with the Zoning Enforcement Officer indicating whether or not any changes in operation or location have taken place since the permit was last renewed or initially issued, as the case may be.
(2)Â
If there are no changes indicated on the renewal application
or determined by the Zoning Enforcement Officer to exist, the Town Board shall
issue a renewal permit valid until the following July 1, provided all provisions
of this chapter were complied with during the immediately previous special
use permit period, the junkyard has not become a public nuisance under the
common law and the applicant has not been convicted of any type of larceny
or the receiving of stolen goods. No hearing shall be required by the Town
Board under these circumstances.
(3)Â
If the application for renewal reveals changes or if
the Zoning Enforcement Officer reports them, or if the Town Board determines
that the chapter has not been complied with during the immediately previous
special use permit period, that the junkyard had become a public nuisance
under the common law or that the applicant had been convicted of any type
of larceny or the receiving of stolen goods, the applicant shall then be required
to follow all of the provisions of this chapter for renewal of his special
use permit as if the same were an initial rather than a renewal application.
The annual special use permit fee shall be $25, to be paid to the Town
Clerk at the time the application is made and annually thereafter in the event
of renewal.
The applicant shall demonstrate his ability to comply with the following
minimum standards:
A.Â
Provide adequate screening of all operations and storage
carried on in the junkyard so as to maintain a reasonably pleasing visual
landscape.
B.Â
Provide sufficient distance of a minimum of 50 feet between
the road right-of-way and junkyard operations so as not to interfere with
the flow of traffic.
C.Â
Provide for adequate fire protection of the junkyard,
as well as a buffer for adjacent land uses.
D.Â
All new buildings to be located on the site must be set
back a distance of at least 50 feet from the right-of-way of any roadway.
E.Â
All sides of a yard must be enclosed and permanently
maintained with a fence and/or sight barrier constructed of materials to be
approved by the Town Board with a suitable gate which shall be closed and
locked except during the working hours of such junkyard or when the applicant,
his agents or employees shall be within. Said fence and/or sight barrier shall
be required to effectively screen the operations and storage taking place
within the yard from the view of passing motorists, pedestrians and neighbors.
F.Â
If a front fence is erected it must be set back a distance
of at least 50 feet from the right-of-way of the roadway. Living hedges and/or
trees used as a sight barrier must be established clear of any right-of-way.
G.Â
The remainder of the site shall be enclosed by a fence
or a sight barrier of acceptable natural or man-made materials (natural to
include stands of trees, brush, a berm of dirt, etc.) to reasonably screen
the operations and storage taking place within the yard from the view of passing
motorists, pedestrians and neighbors.
H.Â
There shall be a fifteen-foot buffer zone around the
entire site between the adjoining property line and any fence or sight barrier.
Said lane shall be free of debris and excessive growth (trees, underbrush),
except where the natural materials are part of the fencing required.
I.Â
No materials shall be stacked higher than 15 feet above
a junkyard's ground surface. Stacked materials shall have additional
sight barriers around them if not otherwise reasonably screened from general
view.
J.Â
Notwithstanding any of the foregoing provisions of this
chapter, no person, firm or corporation shall be issued a special use permit
to operate such junkyard or any part thereof within 500 feet of any church,
school, hospital, public building or place of public assembly.
All operations constituting a junkyard shall be carried on within the
area enclosed by the fence or sight barrier.
Those persons, firms and corporations legally operating or maintaining
junkyards under the ordinance of the Town of Batavia licensing dealers in
used materials at the time this chapter becomes effective shall be permitted
to operate thereunder until current licenses and certificates of approval
expire on June 30, 1979. Thereafter, all applications for permits shall be
made under and pursuant to this chapter. Those junkyard operators holding
valid licenses under the town's present ordinance may be issued a permit
under this chapter effective July 1, 1979, upon making application as required
hereunder, upon demonstrating to the Town Board that substantial procedures
to comply with all of the provisions of this chapter have been undertaken
prior to July 1, 1979, and that screening of all sides of yards by fencing
or planting of natural sight barriers has been completed prior to said date.
Holders of validly issued licenses and certificates of approval under the
town's present ordinance shall have until July 1, 1980, to fully comply
with the provisions of this chapter. Failure to comply with the provisions
of this section shall result in the revocation, denial or nonrenewal of the
operator's special use permit.
A.Â
Persons, firms or corporations found in violation of
this chapter shall be guilty of an offense and shall be subject to the following
penalties to the extent allowed by law:
(1)Â
First offense: fine of not more than $50 and/or imprisonment
for a period not to exceed 15 days.
(2)Â
Second offense: fine of not less than $50 nor more than
$100 and/or imprisonment for a period not to exceed 15 days.
(3)Â
Third and each succeeding offense: fine of not less than
$100 nor more than $250 and/or imprisonment for a period not to exceed 15
days.
B.Â
Each week the violation continues shall constitute a
separate offense subject to separate penalties. Nothing contained herein shall
prevent the Town Board, either alone or in conjunction with the foregoing
penalties, from maintaining an action or proceeding in the name of the town
in any court of competent jurisdiction to compel compliance with or to restrain
by injunction the violation of any provision of this chapter.
A.Â
Notice of violation.
(1)Â
The Zoning Enforcement Officer of the Town of Batavia
shall enforce this chapter. The Zoning Enforcement Officer shall serve a notice
of violation in the manner hereinafter set forth for all violations of this
chapter. The notice of violation shall set forth the alleged violation or
violations and shall state if the same have not ceased and/or been rectified,
as the case may be, within 30 days of the date of service of said notice of
violation, in the case of alleged violators who hold validly issued special
use permits issued by the town, and within 10 days of the date of service
of said notice of violation in all other cases, that formal enforcement proceedings
under this chapter shall be instituted.
(2)Â
Service of the notice of violation shall be sufficient
if directed to the permit holder or other person, firm or corporation operating
in violation of this chapter. Service of said notice of violation shall be
made personally upon the alleged violator, if possible; otherwise, said notice
of violation shall be sufficient if served by delivering the same to a person
of suitable age and discretion at the actual site of operation, dwelling place
or usual place of abode of the person allegedly operating the junkyard in
violation of this chapter and by mailing the notice to the person to be served
at his last known residence; or, where service cannot otherwise be made with
due diligence, by affixing said notice of violation to the door of the actual
place of operation, dwelling place or usual place of abode of said person
to be served and by mailing said notice to such person at his last known residence.
B.Â
In the case of violations of § 138-3 of this chapter, the Zoning Enforcement Officer shall provide, with the notice of violation, a list of valid junkyards and/or other approved parties who may be willing to pick up or otherwise accept said scrap or junk.
C.Â
If a notice of violation has been served, and the alleged
violator has not ceased and/or rectified the alleged violation or violations
within the time allowed under this chapter, the Zoning Enforcement Officer
shall have the option of scheduling a hearing to determine whether the town
shall, by either subcontractors or town employees, have the property brought
into conformance with this chapter.
(1)Â
Notice of hearing. If the Zoning Enforcement Officer determines that a hearing is desired pursuant to Subsection C above, he shall cause a notification in writing to be issued to the property owner setting forth specifically the grounds, and reasons, for such action, and the time and place of a hearing within the town to determine whether the town shall take such conformance action on behalf of the property owner.
(2)Â
Manner and time of service.
(a)Â
The written notice provided for in Subsection C(1) hereof shall be served in one of the following ways:
[1]Â
By personal service of a copy thereof; or
[2]Â
By certified mail, return receipt requested, addressed
to the last known address of the property owner of said premises. If said
certified mail is refused or returned, service upon the property owner shall
be made by mailing a copy of said notice by first class mail to the address
of the property owner in a post office or official depository under the exclusive
care and custody of the United States Postal Service within the State of New
York.
(b)Â
If said notice is served in accordance with Subsection C(2)(a)[1] above, the same shall be served at least 10 days prior to the date of the hearing. Service shall be deemed complete on the date the notice is personally served upon the property owner.
(c)Â
If said notice is served in accordance with Subsection C(2)(a)[2] above, the same shall be served at least 15 days prior to the date of the hearing. Service by certified or regular mail shall be deemed complete upon depositing the same in a post office or official depository under the exclusive care and custody of the United States Postal Service within the State of New York.
(3)Â
Conduct of hearing. At the time and place specified in
the notice, a town official designated by the Town Board, hereafter referred
to as the "hearing officer," shall conduct the hearing. The hearing shall
be conducted informally by the hearing officer, and oral or documentary evidence
pertinent to the facts and issues raised by the Zoning Enforcement Officer
or other interested parties may be received without regard to admissibility
under the rules of evidence applicable to judicial proceedings. The hearing
officer shall require the participants or spectators to conduct themselves
in an orderly fashion. Failure to comply with the directions of the hearing
officer to obtain order may result in exclusion from the proceedings or in
a decision adverse to the interests of the disorderly party and granting or
denial of relief as requested. All parties to the hearing shall be afforded
a fair hearing providing the basic safeguards of due process.
(4)Â
Determination. At the close of the hearing, the hearing
officer may direct that the Zoning Enforcement Officer, either by subcontract
or by town employees, bring the property into conformance with the provisions
of this chapter, or other appropriate action as the hearing officer may determine.
The cost and expense for bringing property into conformance shall be billed
by the town to the property owner. If the property owner fails to pay the
aforesaid cost and expenses within 30 days of the billing, the cost and expenses
can then be levied against the property owner in his or her next real property
tax issued by the town.
(5)Â
Appeal. Any party aggrieved by the action
of the hearing officer shall have the right to appeal to the Town Board. Such
appeal shall be taken by the aggrieved party by filing a written notice of
appeal with the Town Clerk within 14 days after the original hearing and decision.
The Town Board shall set a time and place for the hearing on such appeal,
and notice of such hearing shall be mailed to the aggrieved party at his or
her last known address by regular mail at least five days prior to the date
set for the hearing. The Town Board shall, after hearing all interested parties,
either affirm or reverse the decision of the hearing officer or make such
other ruling as it deems appropriate. The decision of the Town Board shall
be final and conclusive.
It is the intention of this chapter to take the place of and supersede
Town of Batavia Local Law Nos. 1 of 1988 and 1 of 1991, as well as an ordinance
amendment adopted by the Batavia Town Board on May 29, 1991, all relating
to the regulation of junkyards in the Town of Batavia, New York; said repeal,
however, shall not prevent any enforcement of either of said local laws or
ordinance that may be undertaken or in progress prior to the adoption of this
chapter. In addition, all persons, firms and corporations legally operating
or maintaining a junkyard under either of said local laws or ordinance amendment
may continue to do so in accordance with permits issued to them.
