Town of Phelps, NY Article IV District Regulations

§ 145-8 Schedule of Regulations.

The restrictions and controls intended to regulate development in each district are set forth in the attached schedule[1] which is supplemented by other sections in this chapter.

[1] Editor's Note: The Schedule of Regulations is included as an attachment to this chapter.

§ 145-8.1 Neighborhood Commercial District.

[Added 2-2-2004 by L.L. No. 2-2004]

A. Intent The intent in creating a Neighborhood Commercial District is to provide locations where groups of small establishments may be appropriately located to serve frequent commercial and personal service needs of residents within convenient traveling distance. It is not intended to permit major commercial or service establishments in such districts.

B. The following shall be permitted principal uses in said district:

(1) Bakery, confectionery, delicatessen and the like, provided that products prepared or processed on the premises shall be sold only at retail and only on the premises;

(2) Drugstore, newsstand and tobacco shop;

(3) Barbershops, beauty shops, hair salons and other personal service shops or uses;

(4) Restaurants, except fast food, drive-in and those serving liquor;

(5) Boutiques and specialty retail shops, including but not limited to, bookstores, florists, card or gift shops, candy stores, secondhand clothing stores, stationery stores and arts and crafts stores;

(6) Gasoline and fueling stations;

(7) Grocery, meat market, fish market, specialty food stores and convenience-type food stores;

(8) Laundry and dry-cleaning establishments, including self-service;

(9) Custom dressmaking, millinery, hemstitching, pleating, weaving or mending services, shoe repair and tailor shops;

(10) Banks and lending institutions;

(11) Similar uses to those listed above may be permitted subject to special use permit approval by the Town Planning Board and finding by the Board that such use is of the same general character as those permitted in this district and that such use, if permitted, will not cause adverse impacts or be detrimental to other uses within the zone or to adjoining land use; and

(12) Detached single-family dwellings.

C. The following shall be permitted accessory uses in said district:

(1) Off-street parking and loading area, subject to regulations;

(2) Signs, subject to Town requirements;

(3) Residential uses within a structure in combination with other permitted uses provided that such residential uses are accessory to the business conducted and are located elsewhere than on the street frontage of the ground floor and have a minimum area required by regulation; and

(4) Fences, subject to Town requirements.

D. The following uses shall be allowed only upon obtaining a special use permit from the Town Planning Board upon a finding by the Board that such use is of the same general character as those permitted in this district and that such use, if permitted, would not cause adverse impacts or be detrimental to other uses within the zone or to adjoining land uses:

(1) Public building and grounds;

(2) Uses for the treatment and care of human beings, including but not limited to medical and dental offices and clinics for physicians, osteopaths, dentists, chiropractors, chiropodists, podiatrists, opticians, optometrists and ophthalmologists, all excluding overnight occupancy or overnight care;

(3) Essential services and structures, excluding power plants, maintenance yards, storage yards and personal wireless telecommunications facilities;

(4) Business, professional and executive offices, including but not limited to offices for attorneys, architects, engineers, surveyors and accountants, real estate and insurance agents and salespersons;

(5) Private nursery school or day-care center or similar uses.

§ 145-8.2 Mining Overlay District.

[Added 7-9-2012 by L.L. No. 3-2012]

A. Permitted uses. No person shall do, conduct, perform, or engage in any mining, or operate a mine, within the Town of Phelps except within a Mining Overlay District as hereinafter defined and except in compliance with the provisions of this § 145-8.2 of the Zoning Law. Mining shall be a special use in a Mining Overlay District and shall be allowed only with a special use permit as hereinafter provided in this section.

B. Issuance of special use permits for mining.

(1) The Town Board hereby authorizes the Zoning Board of Appeals to issue special use permits to engage in mining in accordance with the provisions set forth below and §§ 145-10 and 145-11 of the Zoning Law. No person shall do, conduct, perform, or engage in mining, or operate a mine within the Town, except within a Mining Overlay District and except pursuant to a mining special use permit issued by the Zoning Board of Appeals in accordance with the procedures and criteria set forth in this subsection.

(2) Applicants for a special use permit to engage in mining shall submit to the Zoning Board of Appeals an original and 11 copies of an application for special use permit for mining (which application shall be developed by the Town Board). The applicant will include with the application for special use permit for mining the items set forth in § 145-8.2B(3) below. To the extent the applicant's application to the DEC for a state mining permit for the mine contains information required herein, the application to the DEC may be substituted therefor. The foregoing, however, shall not relieve the applicant from submitting any information required herein that is not contained in an application to the DEC for a state mining permit. The application for special use permit shall be accompanied by a fee as set forth in Chapter A157 of the Zoning Law. The applicant shall pay to the Town such additional amounts as are necessary to reimburse the Town for the expenses paid by the Town to any engineers or other consultants retained in connection with a review of the application.

(3) The application for special use permit for mining shall include the following:

(a) The name, address and telephone number of the applicant, together with the name of the person to contact for further information, if the applicant is not an individual.

(b) A map, prepared by a licensed engineer or surveyor, showing the boundaries of the proposed mine, as well as a key map showing its approximate location in the Town of Phelps. The scale of the map shall be no less than one inch equals 100 feet, unless the Zoning Board of Appeals, by resolution, allows a smaller scale.

(c) A description of the proposed mining operation, including the type of material to be mined, equipment to be used, approximate tonnage for each year of the next five-year period, and the anticipated useful life of the mine. For the purposes of complying with this § 145-8.2B(3)(c), a mining plan prepared pursuant to Title 27, Article 23, of the Environmental Conservation Law and regulations promulgated thereunder shall be sufficient, provided that the Zoning Board of Appeals is satisfied that all relevant requirements thereof have been met; provided, further, that the applicant shall meet all applicable requirements of this section in submitting said mining plan.

(d) A reclamation plan, including both a graphic and a narrative description of the proposed objective to be achieved in the final stage of reclamation, the proposed method of reclaiming the affected land, and a schedule for reclaiming the affected land. For purposes of complying with this § 145-8.2B(3)(d), a reclamation plan prepared pursuant to Title 27, Article 23, of the Environmental Conservation Law and regulations promulgated thereunder shall be sufficient, provided that the Zoning Board of Appeals is satisfied that all relevant requirements thereof have been met; provided, further, that the applicant shall meet all applicable requirements of this section in submitting said reclamation plan.

(e) All documents submitted by the applicant to the DEC and the applicable state mining permit, if one has been issued, along with all documents referenced in the state mining permit.

(f) A completed environmental assessment form as required by the New York State Environmental Quality Review Act so that the Zoning Board of Appeals may perform any obligations required by such act unless all requirements under the New York State Environmental Quality Review Act have previously been satisfied.

(4) The Zoning Board of Appeals shall consider the application for a special use permit pursuant to the requirements of § 274-b of the New York State Town Law. The Zoning Board of Appeals shall require the applicant to provide notices of the application for special use permit to surrounding property owners within 500 feet of the proposed mine by First Class United States Mail, and any other recipients they deem appropriate. The cost of preparing, publishing and mailing any required notices shall be borne by the applicant. The Zoning Board of Appeals may cancel a public hearing if the applicant fails to submit all of the required information.

(5) When the applicant has submitted a complete application for a special use permit, the Zoning Board of Appeals may grant and approve a special use permit for a mine which meets the following criteria:

(a) The provisions of §§ 145-10B and 145-11 (except those provisions relating to screening) of the Zoning Law have been satisfied.

(b) The proposed use will not adversely affect the character of the neighborhood or surrounding area, including taking into account the surrounding land uses and the underlying zoning classification.

(6) Conditions. Except for proposed mines that are not required to be permitted by the State of New York, conditions placed on a special use permit to engage in mining by the Zoning Board of Appeals may include the following:

(a) Ingress and egress to public thoroughfares controlled by the Town;

(b) Routing of mineral transport vehicles on roads controlled by the Town;

(c) Requirements and conditions as specified in the applicable state mining permit concerning setback from property boundaries and public thoroughfare rights-of-way, natural or man-made barriers to restrict access, if required, dust control and hours of operation, when such requirements and conditions are established pursuant to § 23-2711, Subdivision 3, of the Environmental Conservation Law;

(d) Enforcement of reclamation requirements contained in the applicable state mining permit.

(7) Nothing herein shall prohibit the Town, as part of the DEC's permitting process, from making a determination in regard to the following, and notifying the DEC of the determination pursuant to Environmental Conservation Law § 23-2711:

(a) Appropriate setbacks from property boundaries or public thoroughfare rights-of-way;

(b) Man-made or natural barriers designed to restrict access if needed, and, if affirmative, the type, length, height and location thereof;

(c) The control of dust;

(d) Hours of operation; and

(e) Whether mining is prohibited at the proposed location.

(8) 

Notwithstanding the provisions of § 145-8.2B(6) above, to the extent allowed by law, special use permits for mines that are not required to be permitted by the State of New York, as defined by Environmental Conservation Law § 23-2711 as may be amended from time to time, may contain one or more of the following conditions or regulations:

(a) A requirement that the mining is to be designed, located and operated so as to protect the public health, safety and welfare.

(b) A requirement that the mining will encourage and promote a suitable and safe environment for the surrounding neighborhood and will not cause substantial injury to the value of other property in the neighborhood.

(c) A requirement that the mining will be compatible with existing adjoining development and will not adversely change the established character or appearance of the neighborhood.

(d) A requirement that effective landscaping and buffering is provided.

(e) A requirement that adequate off-street parking and loading are provided in accordance with the Zoning Law, and ingress and egress to parking and loading areas are so designed as to minimize the number of curbcuts and not unduly interfere with traffic or abutting streets.

(f) A requirement that site development shall be such as to minimize erosion and shall not produce increased surface water runoff onto abutting properties.

(g) A requirement that existing public streets and utilities servicing the mining are determined to be adequate.

(h) A requirement that significant existing trees and vegetation shall be preserved to the extent practicable.

(i) A requirement that adequate lighting of the site and parking areas is provided and that exterior lighting sources are designed and located so as to produce minimal glare on adjacent streets and properties.

(j) A requirement that the proposed mining be in harmony with the Zoning Law and not adversely affect the neighborhood.

(k) A requirement that noise from mining activities and related operations shall not be such as to unreasonably interfere with the quiet enjoyment of neighboring properties. Sources of sound emanating from the mining site shall not exceed a sound level limit of 75 dBA for any adjacent property receiving such sound, when measured at or within the property boundary of the adjacent property receiving such sound.

(l) A requirement that disturbed areas shall be kept to a minimum to reduce sources of dust.

(m) A requirement that impact vibrations and steady-state vibrations shall be limited or reduced so as to minimize their effect on adjoining properties.

(n) A requirement that radioactive materials, toxic gases or vapors shall not be emitted on or from the mining site.

(o) A requirement that no surface water drainage or ground water shall be polluted in any manner that renders it less usable (in quality or quantity for irrigation, swimming, drinking, visual attractiveness or whatever lawful uses are made of water resources to persons downstream) than such water's usefulness as it enters the area of mining operation.

(p) Installation by applicant of a berm to reduce the noise level to the neighboring residents; specification of the height of the berm; seeding of the berm to prevent erosion and to improve the look of the berm; a fixed completion date for the berm; and the slope of the berm.

(q) Arrangement of stockpiles to help muffle the sound from crushing and screening operations; height limits for the piles.

(r) Location or relocation of the exit road to reduce traffic next to the residents across from the mine pit.

(s) A timetable for completion of restoration phases.

(t) Installation and maintenance of rubber belting on chutes and similar equipment used in mining operations to help reduce noise levels.

(u) Widening, oiling and stoning by the applicant of any Town access roads, in consultation with the Town Highway Superintendent.

(v) For additional soil and erosion control, requiring applicant to:

[1] Prevent runoff from leaving the site.

[2] Raise/depress entrance/exit to prevent drainage from going onto road.

[3] Maintain the entrance/exit with clean gravel and keep the same washed (dust and mud free) at all times.

(w) Requiring the applicant to install signage as requested by the Town Highway Superintendent, and consult with the Town Highway Superintendent regarding recommendations for warning/safety devices.

(x) Requiring the applicant to keep the roads dust and mud free by periodic washing and sweeping, as needed to control dust and flying particles.

(y) Requiring the applicant to provide a truck staging area within the mine; and requiring that trucks awaiting the daily opening of the mine must be staged off public highways on the applicant's site being used for the mining operation.

(z) Requiring that the applicant shall confine fugitive dust and flying particles to the area of the mine; and:

[1] In the case of any houses within 500 feet of an active mine area, requiring that applicant shall annually reimburse the owners thereof for the costs incurred by such owners for washing the outside of such houses once per year. Such annual reimbursement may be subject to a maximum reimbursement amount and shall not be paid without prior notice to the applicant and proof of payment of the washing costs;

[2] In the case of any houses within 500 feet of an active mine area, requiring that the applicant shall purchase for each house a home air purifier (which may be subject to a maximum cost) if requested by the homeowner thereof who furnishes a doctor's statement showing that there is a need therefor and that the need was caused by dust from the applicant's mining operation; and

[3] Requiring that the applicant shall periodically spray water on stock piles/hoppers, as needed, to control dust and flying particles.

(aa) To attenuate noise, requiring that the applicant shall:

[1] Lower equipment/raise piles.

[2] Annually review efforts to reduce noise levels in July for additional adjustments.

[3] Annually review noise effects in July; and

[4] Use the applicant's best efforts not to use any crusher or screen before 8:00 a.m. on Saturdays.

(ab) Requiring that the applicant shall participate in an annual review (with the Zoning Board of Appeals, the applicant and other Town officials) within 30 days after the report required by § 145-8.2F(2) hereof has been filed, with special attention to noise, dust and dirt being confined to the mine area.

(ac) Requiring that the applicant shall, to the extent practicable, not cut certain trees or vegetation on the applicant's property.

(ad) Requiring that the applicant shall plant trees (a double row of seedlings on eight-foot centers, staggered) along certain roads by a certain date; provided, however, that the trees shall not be less than four feet in height if there are any residences in the immediate area. The applicant shall guarantee that all such seedlings (or trees, as the case may be) shall live for a period of at least one year, and in the event any such seedlings (or trees) shall die prior to the expiration of one year, the applicant (at its expense) shall replace said seedlings (or trees).

(ae) Requiring that no topsoil shall be removed from the site, that overburden shall not be considered topsoil, and that all restoration shall include a minimum of four inches of topsoil.

(af) Requiring that the applicant shall protect the fair market value of any residences then located within 500 feet of an active mining area from loss of value caused by mining during the term of the special use permit approval; defining the term "active mining area" as including any area used for mining, hauling, or processing, or any area on the site which is unreclaimed; designating those residences within the designated five-hundred-feet area, providing that any such residence owner claiming loss of property value shall be responsible for demonstrating such loss by a professional appraisal, or any other methods which are mutually agreed upon by the residence owner and the applicant; providing that such protection from loss of value caused by mining shall take the form of reimbursement to be made by the applicant to the affected residence owners in an amount equal to the difference between: a) the fair market value of the residence prior to the date the Zoning Board of Appeals approves and grants the special use permit, and b) the fair market value of the residence as of the date of the professional appraisal thereof; and providing that any dispute regarding a loss of fair market value caused by mining shall be resolved by arbitration, in accordance with the rules of the American Arbitration Association, and that judgment upon the award may be enforced in any court having jurisdiction thereof.

(ag) Providing that the Town Highway Superintendent, Town Supervisor, or Code Enforcement Officer shall have the authority to issue a written notice of violation where he or she determines that the mining special use permit conditions are being violated; upon such written notice, the applicant shall have a reasonable amount of time, at least two weeks, to cure such violations; if the violations persist and are found to be significant, the Zoning Board of Appeals shall have the authority to revoke the mining special use permit for good cause; the applicant shall have the right to a hearing prior to any such mining special use permit enforcement action.

(ah) Providing that the applicant shall grant the Highway Superintendent, Town Supervisor, Code Enforcement Officer, an engineer or other consultant designated by the Town, and members of the Zoning Board of Appeals a license to enter upon the site with reasonable prior notice to the applicant to determine that these conditions are being fulfilled and complied with notwithstanding any signs or other notices purporting to limit access to the site.

(ai) Specifying, in the case of vehicles going to or from the site, the haul routes to be followed.

(aj) Specifying that the applicant shall refrain from doing any washing of minerals on the site.

(ak) Requiring if the existing wells of certain neighboring property owners go dry, and if those neighboring property owners can prove by a preponderance of the evidence that such condition was caused by any water usage on the site by the applicant during the term of the mining special use permit approval, the applicant shall reimburse those neighboring property owners for the costs incurred by said neighboring property owners in drilling a new well on their properties; and providing that any dispute regarding the dry condition of the wells shall be resolved by arbitration in accordance with the rules of the American Arbitration Association, and that judgment upon the award may be enforced in any court having jurisdiction thereof.

(al) Requiring that the applicant shall comply with applicable fuel storage and permit requirements of DEC; the applicant shall provide and maintain on site an on-site secondary container large enough to contain the full volume of the fuel tank on site; and the fuel tank shall at all times be placed within said secondary container; the applicant shall maintain equipment and supplies on site to contain, remediate, and clean up potential spillage, and immediately use same to clean up any actual spillage; vehicle maintenance shall be conducted to minimize and prevent lubricant and fuel spills; all spills of chemicals, gasoline, motor oil, or hydraulic fluid in excess of one gallon at any one time must be reported within one hour to DEC and Town Supervisor.

(am) Providing that not more than 15 acres (exclusive of the berms and the roadway) on the entire site shall be unreclaimed at any one given time.

(an) Requiring that operations shall be conducted in such a manner as to prevent excessive dust and noise.

(ao) Requiring that operations shall generally be restricted to between the hours of 7:00 a.m. and 6:00 p.m., Monday through Friday, and between the hours of 8:00 a.m. and 12:00 noon on Saturday; provided, however, that the Zoning Board of Appeals may, at its discretion, modify these hours depending on prevailing conditions.

(ap) Requiring that the mine operator shall maintain private and public roads and driveways in a dust-free condition and provide such surfacing or other treatment as may be required by the Zoning Board of Appeals at the time of approval of the mining special use permit.

(aq) Requiring that open excavations extending below the level of an adjacent highway shall not be closer to the highway right-of-way than 100 feet. Operations shall be carried on no closer than 25 feet from an adjacent property.

(ar) Requiring that finished slopes in any open mining pit shall not be steeper than allowed by the DEC, and that finished slopes shall be graded and each site shall be fertilized, mulched and seeded to establish a firm cover of grass or other vegetation sufficient to reduce erosion, and that stone walls of a quarry need not be reduced in slope or reseeded.

(as) Requiring that all surface drainage shall be controlled through the use of dikes, barriers and drainage structures to prevent silt, erosion, debris or other loose materials from being deposited on any public or private highway or on other property; and that all provisions for control of drainage water shall be subject to periodic review by the Zoning Board of Appeals.

(at) Requiring that fencing shall be provided along property lines for whatever distance the Zoning Board of Appeals shall determine to be necessary for protection of adjoining property and the public.

(au) Requiring that screening may be required to reduce the visual impact of the project on the surrounding properties before mining commences and throughout the duration of the project.

(av) Requiring and providing that whenever the Zoning Board of Appeals determines that the excavation of materials is creating a nuisance, or the mining operator has violated the terms of the mining special use permit or of this section, the Zoning Board of Appeals may revoke the mining special use permit therefor upon five days' written notice after a hearing before the Zoning Board of Appeals.

(aw) Requiring that no smoke from any source whatever shall be emitted, as measured at the individual property line, of a density greater than, or equal to the density described as No. 2 on the Ringelmann Chart as published by the United States Bureau of Mines; provided, however, that the emission of smoke shall not be permitted if it is unreasonably offensive in terms of odor or noxious gases despite its apparent lack of density when measured by the Ringelmann Chart.

(9) Site plan review. A special use permit may be issued only after final site plan approval of the mine by the Planning Board.

C. Term of the mining special use permit. The term of the mining special use permit shall be coincident with the term of any applicable state mining permit. Otherwise, the term shall be two years.

D. Bond. Each mining special use permit shall include a requirement that the applicant submit a bond (if DEC does not require one), with such surety and in such amounts as the Zoning Board of Appeals shall prescribe, in favor of the Town, conditioned upon the satisfactory reclamation of the mining site upon the completion of mining operations thereon.

E. Renewals. The applicant shall, upon the expiration of each mining special use permit period, obtain a renewal for a like term by filing an application therefor with the Zoning Board of Appeals on a form prescribed by the Town Board. In entertaining said renewal application, the Zoning Board of Appeals shall require and consider, to the extent appropriate and applicable, the same information and factors considered by the Zoning Board of Appeals for an initial application, together with the performance of the renewal applicant under previous permits. To the extent the applicant's application to the DEC for a renewed state mining permit for the mine contains information required herein, the application to the DEC may be substituted therefor. The foregoing, however, shall not relieve the applicant from submitting any information required herein that is not contained in an application to the DEC for a renewed state mining permit. The application for a renewal of the special use permit shall be accompanied by a fee as set forth in Chapter A157 of the Zoning Law. The applicant shall pay to the Town such additional amounts as are necessary to reimburse the Town for the expenses paid by the Town to any engineers or other consultants retained in connection with a review of the renewal application.

F. Inspections and reports.

(1) The Code Enforcement Officer, and any engineer or other consultant retained by the Town, may conduct such periodic inspections, on reasonable notice to the mine operator, as they shall deem necessary to ensure compliance with the terms of the mining special use permit and this section.

(2) At least 30 days prior to the yearly anniversary of the granting of a mining special use permit, each mining operator shall submit 10 copies of a report, certified by the applicant, showing graphically and by narrative the extent of the operations carried on over the previous year, including any variance from the mined land-use plan. If the Code Enforcement Officer finds the report or applicant's compliance with the mining special use permit to be defective or deficient in any way, the expenses of discovering or remedying any such defect may be considered in establishing the fee upon the next occurring renewal of the mining special use permit.

G. Violations. For a violation of § 145-8.2 of the Zoning Law or a violation of any provision, term or condition of a mining special use permit issued pursuant to § 145-8.2 hereof, the provisions of Article X of the Zoning Law shall be applicable. Nothing herein shall prevent the Town from pursuing and enforcing remedies and sanctions pursuant to any other provision of the Code of the Town of Phelps or other applicable state or federal law.

H. Nonconforming mines.

(1) A mine within the Town of Phelps that exists and is in operation, with a valid state mining permit if required, and in compliance with all applicable laws, ordinances, and regulations of the Town of Phelps, County of Ontario, and State of New York on the date of adoption of this § 145-8.2 may be continued as a legal nonconforming mine, subject to the conditions below and provided that the requirements set forth in § 145-8.2H(4) are satisfied.

(2) After enactment of this § 145-8.2, a nonconforming mine shall not be enlarged or expanded beyond the area, size, or scope as specifically set forth in the applicable state mining permit in effect at the time this § 145-8.2 is enacted, nor shall the use of such mine be changed (a change in the use of the mine shall include, but not be limited to, a change in the type of material extracted, the method of processing of materials, and/or the products produced) after this § 145-8.2 is enacted. A mine that is not required to have a state mining permit shall not be enlarged or expanded, nor shall the use of such mine be changed after this § 145-8.2 is enacted. In no event, however, shall mining operations (regardless of whether required to have a state mining permit) be enlarged or extended beyond the boundaries of the parcel of property on which such mine exists at the time this § 145-8.2 is enacted. Any expansion or enlargement of a mine not specifically allowed under this § 145-8.2H(2) must comply with all applicable provisions of § 145-8.2, including but not limited to § 145-8.2A and B.

(3) If the mining within a nonconforming mine ceases for a period of one year, all future uses of the parcel on which the nonconforming mine existed shall conform to the Zoning Law.

(4) Certificate of nonconforming mine. In order to continue as a legal nonconforming mine, the owner or operator of the nonconforming mine shall within six months after enactment of this § 145-8.2 obtain a certificate of nonconforming mine pursuant to the procedures set forth herein.

(a) The owner of the nonconforming mine shall apply to the Code Enforcement Officer for a certificate of nonconforming mine.

(b) Upon a finding by the Code Enforcement Officer that the mine legally existed, in compliance with all applicable laws, ordinances, and regulations, of the Town of Phelps, County of Ontario, and State of New York, including the DEC, at the time this § 145-8.2 was enacted, the Code Enforcement Officer shall issue to such owner a certificate of nonconforming mine.

(c) The certificate of nonconforming mine shall include the following information:

[1] The basis for the Code Enforcement Officer's finding that the mine qualifies as a legal nonconforming mine.

[2] A description of the type of mining activity being conducted at the nonconforming mine.

[3] The specific area where mining activity is being conducted, including, if appropriate, maps or other depictions of the parcel where the nonconforming mine is located.

[4] A description of all structures at the nonconforming mine, including a description of the use of such structures, and again including, if appropriate, maps or other depictions of the parcel.

[5] A description of the type of material extracted and products produced at the mine.

(d) The Code Enforcement Officer may require the owner of the nonconforming mine to provide such documentation as is necessary for the Code Enforcement Officer to issue a certificate of nonconforming mine. Such information may include, but is not limited to, an application in a form approved by the Code Enforcement Officer or the Town Board, copies of the applicable state mining permit, any applications for such state mining permit, and the approved mined land-use plan for the nonconforming mine.

(e) At least annually the Code Enforcement Officer shall conduct a review of each previously issued certificates of nonconforming mine to determine whether each mine that has a certificate of nonconforming mine is still in operation and whether such operation is as described in the certificate of nonconforming mine. The Code Enforcement Officer shall record any changes in the mining operation and shall take such other action consistent with this § 145-8.2 as is warranted by such changes.

(f) Notwithstanding any other provisions of this § 145-8.2H, a mine that fails to obtain a certificate of nonconforming use within the time frame set forth herein shall not be considered a legal nonconforming mine and shall be subject to all applicable provisions of this § 145-8.2, including but not limited to § 145-8.2A and B.

(5) The provisions of this § 145-8.2H shall apply notwithstanding the provisions of any other section of the Zoning Law or any other local law or ordinance of the Town of Phelps.

I. Amendment of Mining Overlay District. It is the intention of this § 145-8.2 of the Zoning Law to potentially allow for the amendment of the Mining Overlay District as deemed appropriate by the Town Board; provided, however, that the Town Board shall consider the factors specified in § 145-8.2J of the Zoning Law in determining whether to amend the boundaries of the Mining Overlay District.

J. Standards for the amendment of boundaries of the Mining Overlay District. In considering an amendment to the boundaries of the Mining Overlay District, the Town Board shall consider all relevant factors, including the following:

(1) The consistency of the proposed amendment of the Mining Overlay District with the Town of Phelps Comprehensive Plan and the Zoning Law.

(2) If land is proposed to be added to the Mining Overlay District as part of any amendment, the ability to balance such addition of land with a removal of land from the Mining Overlay District as part of the amendment.

(3) The character of the neighborhood which would be affected by an amendment of the Mining Overlay District.

(4) The general zoning classification of the area which would be affected by the amendment of the Mining Overlay District.

(5) The proximity of the amended Mining Overlay District to existing Mining Overlay District or mining operations.

(6) The inclusion within the amended Mining Overlay District of other parcels of land which, in the future, might be the subject of mining.

(7) Impact of the mining on the immediate area and any haulageways.

(8) Any other factors the Town Board considers relevant.

§ 145-8.3 Major Thoroughfare Overlay District.

[Added 7-13-2015 by L.L. No. 2-2015]

A. Intent.

(1) It is intended by the provisions of these regulations to accomplish the following:

(a) To retain the rural character of our Town by taking steps to keep the state roads within our Town as two-lane highways.

(b) To restrict or control site access along portions of State Route 14, State Route 96 and State Route 318 in the Town of Phelps in order to prevent the creation of strip commercial development as well as potentially significant traffic congestion problems and vehicular and pedestrian conflict areas within the major thoroughfare corridor. The Major Thoroughfare Overlay District is designed to permit appropriate commercial, residential and business uses along the corridor and to ensure consistency with the Town's Master Plan.

(2) The regulations contained within this Major Thoroughfare Overlay District are not intended to be substituted for other general zoning district provisions but will be superimposed over such district provisions and shall be considered as additional requirements to be met by the applicant or developer prior to final project approval. This Major Thoroughfare Overlay District is intended to provide the Town of Phelps with an additional level of review and regulation that will control how the land development permitted by the Town's primary zoning districts will take access to and will impact the major transportation routes within the Town.

B. Delineation of Major Thoroughfare Overlay District (MTOD) boundaries. The MTOD is hereby established as a mapped overlay zone and shall be delineated upon the Official Zoning Map of the Town of Phelps. The mapped MTOD area is based upon the "Official Major Thoroughfare District Overlay Mapping," Town of Phelps, Ontario County, New York, which is further identified as all property and parcels of land within and/or accessing State Route 14 within 500 feet of the center line on State Route 14 from the Town of Geneva/Town of Phelps boundary north to the New York State Thruway; then north of the New York State Thruway to the end of Parcel 37.00-1-28.000 which corresponds to the end of the current C-1 Zone District, to include all property and parcels of land within 500 feet of the center line on State Route 14 on the eastern side of State Route 14; and all property and parcels of land within 500 feet of the center line of State Route 318; and all property and parcels of land within and/or accessing State Route 96 within 500 feet of the center line of State Route 96 from the Seneca County-Town of Phelps boundary for a distance of 7,899 feet, as measured from the center line of State Route 96 (to the end at the existing C-1 District and the start of the M-1 Zone District). Any property or parcel of land which contains frontage along State Route 14, Route 96 and Route 318 lying within the boundary of the MTOD and/or accessing State Route 14, Route 96 and Route 318 shall be subject to the provisions and restrictions of the underlying zoning district and the provisions set forth in this section of the Town Code.

C. Permitted principal uses. Permitted principal uses within the Major Thoroughfare Overlay District shall be those allowed within the underlying or base zoning district within which the property lies and shall be considered subject to the appropriate principal use provisions and restrictions of that district.

D. Permitted accessory uses. Permitted accessory uses within the Major Thoroughfare Overlay District shall be those allowed within the underlying or base zoning district within which the property lies and shall be subject to the appropriate accessory use provisions and restrictions of that district.

E. Special permit uses. Uses within the Major Thoroughfare Overlay District which are permitted subject to special permit review and approval by the Town Zoning Board of Appeals, after review by the Planning Board, shall be those subject to such permit within the underlying or base zoning district within which the property lies.

F. Dimensional requirements. Dimensional requirements for development within the Major Thoroughfare Overlay District shall be those setbacks, lot size and lot coverage provisions of the underlying or base zoning district within which the subject property lies, as outlined elsewhere in this Chapter 145 of the Code of the Town of Phelps (Zoning), unless otherwise provided by this section.

G. Setbacks.

(1) Buildings located within the Major Thoroughfare Overlay District shall be governed by the following setbacks:

(a) Setback from Town road: 100 feet.

(b) Setback from State Route 14: 100 feet.

(c) Setback from State Route 96: 100 feet.

(d) Setback from State Route 318: 100 feet.

(2) Measurement of the setback shall be from the existing Town and/or state right-of-way.

H. Parking. For all properties adjacent to State Route 14, State Route 96 and State Route 318, other than single- or two-family dwellings, it is the Town's preferred goal that parking be to the side and/or rear of buildings located on the property. The applicant will provide a written statement as part of their application justifying any modification from the preferred goal.

I. General access management requirements.

(1) Regulations applicable to all zoning districts within the MTOD Overlay District.

(a) The location and design of driveways and other site layout, parking and access management conditions shall conform to all state and local requirements, including, and not limited to, those established in this section.

(b) The site layout, location and design of driveways, parking and other access management conditions shall be based on the full development of a lot.

(c) Driveways shall be limited to one per lot. More than one driveway may be permitted if:

[1] The additional driveway(s) do not degrade traffic operations and safety of the public roadway system; and

[2] The additional driveway(s) will improve the safe and efficient movement of traffic between the lot and the abutting public road.

(d) Driveways to properties with frontage on two or more roads shall be provided to the road with the lowest functional classification serving the proposed development.

(e) Driveways may be required to be located so as to provide shared driveways and/or cross-access driveways with an abutting lot or lots.

[1] Shared driveways and/or cross-access driveways shall be of sufficient width (minimum 24 feet) to accommodate two-way travel for automobiles and emergency service and loading vehicles. Wider driveways may be required to serve traffic to major developments or large vehicles.

[2] Shared driveways, cross-access driveways, interconnected parking and private roads constructed to provide access to properties internal to a subdivision shall be recorded as an easement and shall constitute a covenant running with the land. Operating and maintenance agreements for these facilities should be recorded with the deed.

J. Driveway standards.

(1) Spacing standards. Regulations relate to the required separation, location and standards for driveways providing access to and from roads listed in the MTOD Overlay District. Each driveway constructed within the MTOD shall comply with the following:

(a) Driveways shall be located so as to meet or exceed the driveway spacing standards shown in Table 1.

Table 1
Minimum Driveway Spacing Standards
Type of Development/ Type of Road	Single-Family (feet)	Commercial (feet)
State Route 318	150	500
State Route 14	150	500
State Route 96	150	500

(b) Driveway spacing standards shall apply to driveways located on the same side of the road.

(c) Driveway spacing is to be measured along the road from the inside edge of the driveway to the inside edge of the adjacent driveway (see Exhibit A).[1]

[1] Editor's Note: Exhibit A is on file in the Town offices.

(2) Corner clearance.

(a) Corner clearance is to be measured along the road from the center line of the driveway to the closest edge of the road determined by the State Department of Transportation, unless otherwise specified elsewhere in this chapter.

(b) Driveways for corner properties shall meet or exceed the minimum corner clearance requirements as follows: 220 feet as measured from the center of the intersection.

(3) Driveway location.

(a) Driveway location will be based on a site plan which has been approved by the Town Planning Board in consultation with the New York State Department of Transportation or the Town Engineer/Town Highway Superintendent.

(b) Driveways shall be located so as to meet or exceed the minimum driveway spacing standards and the minimum corner clearance standards.

(c) The Town Planning Board may allow the location of driveways at less than the minimum driveway spacing and corner clearance standards if:

[1] A dual-driveway system, cross-access driveway system or shared driveway is proposed and this improves the safe and efficient movement of traffic between the lot and the road; or

[2] A driveway or driveways could be located so as to meet the minimum driveway spacing standards and corner clearance standards, but the characteristics of the lot or the physical or operational characteristics of the road are such that a change of location will improve the safe and efficient movement of traffic between the lot and the road; or

[3] Conformance with the driveway spacing standards or corner clearance standards imposes undue hardship on the lot owner.

(d) For properties unable to meet the minimum driveway spacing standards or corner clearance standards, a temporary driveway may be granted. The granting of a temporary driveway will be conditioned on obtaining a shared driveway, cross-access driveway or unified parking and circulation with an abutting lot, and closure of the temporary driveway, in the future.

(e) For properties unable to meet the minimum corner clearance requirements, driveways shall be located as far as practicable from the intersection. In such cases, driveway movements may be restricted and only one driveway will be permitted along the road frontage not meeting the minimum corner clearance requirement.

(4) Driveway design.

(a) Driveways shall be designed so as to provide for the safe and efficient movement of traffic between the public road and the lot and to eliminate the potential for the queuing of vehicles along the public road due to congestion in or at the driveway.

(b) Vehicle circulation systems on the lot shall be designed so as to provide for the safe and efficient movement of traffic between the driveway and the parking area.

(c) Driveway width, radii, flare, throat length, internal circulation systems and other design elements for driveways to developments generating more than 150 peak-hour trips (peak-hour trips will be determined through application of the Institute of Transportation Engineers' trip generation methods and statistics) shall be based upon traffic, engineering and design data provided by a traffic engineer/consultant who is recognized and accepted by the Town Planning Board. In the event that a traffic engineer/consultant is not provided, the Town shall have the right to retain such traffic engineer/consultant at the cost of the applicant.

(5) Driveway movements.

(a) Driveway movements (cross, left turn in, left turn out, right turn in and right turn out) may be restricted so as to provide for the safe and efficient movement of traffic between the road and the lot.

(b) Driveways shall be designed and constructed to provide only allowable movements.

(6) Changes in access.

(a) The Town Planning Board may establish provisions for and require future alteration of the lot layout, the location and design of driveways, parking and other access features based on phased development, additional development or a change in use of the lot, or development of or a change in use at an abutting lot.

(b) For any change in use of a lot which requires Town permit or approval and may increase traffic, the Town Planning Board may:

[1] Require closure or relocation or consolidation of driveways so as to meet the minimum driveway spacing standard for the new level of traffic that may be generated.

[2] Require shared driveways and cross-access driveways with abutting lots.

[3] Require alteration of the lot layout and parking, which allows for the circulation of traffic between abutting properties.

K. Land subdivision criteria. All proposed development of land located within the MTOD, which involves the subdivision of a parcel of land not in effect as of the effective date of the adoption of these regulations, shall be subject to the following criteria in addition to that set forth in Chapter 123, Subdivision of Land, of the Code of the Town of Phelps:

(1) Planned access shall be provided for lots which are the result of subdivisions occurring after the effective date of this section.

(2) Planned access shall address the provisions of this section and the following:

(a) Lots which are the result of a subdivision do not have the right of individual access to public roads. The number of driveways or connections shall be the minimum number necessary to provide reasonable access to these lots, not the maximum available for frontage.

(b) Driveways shall be provided to the road with the lowest functional classification serving the proposed land use.

(c) Access should be internalized. Access to lots within a subdivision should be obtained from an access road or interior road.

(d) The access system for the proposed subdivision should be coordinated with existing, proposed and planned streets outside the subdivision.

L. Variance standards for development within the MTOD Overlay District.

(1) In addition to the standards and criteria for development set forth elsewhere in the Town of Phelps Code, the Town Board hereby enacts the following additional standards for granting of variances associated with development within the MTOD Overlay District:

(a) The granting of an area variance shall be in harmony with the purpose and intent of this section and shall not be considered until every reasonable option for meeting the provisions of this section is explored.

(b) Applicants for an area variance must demonstrate unique or special conditions that make strict application of the provisions of this section impractical. This shall include a showing that:

[1] Indirect or restricted access cannot be obtained.

[2] No reasonable engineering or construction solutions can be applied to mitigate the condition; and

[3] No reasonable alternative is available from a road with a lower functional classification than the primary road.

(c) Under no circumstances shall an area variance be granted unless not granting the variance would deny all reasonable access, endanger public health, welfare or safety or cause an exceptional and undue hardship on the applicant. No area variance shall be granted where such hardship is self-created.

§ 145-9 Signs.

A. Business and advertising signs. One or more business or advertising signs in the commercial and industrial districts are permitted, provided that such signs shall not have a combined gross surface area in square feet exceeding two times the frontage of the lot on which they are located, and in no case shall any single sign exceed 200 square feet. In residential districts, existing business or advertising signs shall not be enlarged or altered, but may be maintained.

B. Residential signs. Nonadvertising signs accessory to nonresidential uses located in residential districts are permitted, provided that they do not exceed 10 square feet in size. The number of signs shall be restricted to one to each property or dwelling unit, entrance, exit or building to which it pertains, except that properties located on corner lots may have one sign facing each street.

C. Location of signs. All signs may be located in any required yard, shall conform to the height limitations of the district in which they are located and shall not project into or over any public right-of-way.

D. Illumination of signs. No illuminated or flashing sign shall create excessive glare or brightness which will adversely affect abutting properties or create a nuisance or hazardous condition as determined by the Board of Appeals.