It shall be the duty of the Building Inspector and he is hereby
given the power and authority to enforce the provisions of this ordinance.
[Effective 3-29-2003]
In all civil and criminal prosecutions brought for the enforcement
of this ordinance in respect to nonpermitted occupancy of single-
and two-family dwellings, the following provisions shall apply:
A.
There shall be a rebuttable presumption that any dwelling which maintains
more than one gas meter, or more than one electric meter, or more
than one water meter, is being used as the residence of two or more
families.
B.
There shall be a rebuttable presumption that any dwelling which maintains
more than two gas meters, or more than two electric meters, or more
than two water meters, is being used as the residence of three or
more families.
C.
There shall be a rebuttable presumption that a single-family dwelling
which maintains any entrance(s) thereto, which entrance(s) has not
been set forth on any plans approved by and on file with the Department
of Buildings, is being used as the residence of two or more families,
except that this provision shall not apply in the case of any entrance
which was constructed prior to the effective date of this Building
Zone Ordinance.
D.
There shall be a rebuttable presumption that a two- family dwelling
which maintains any third or additional entrances thereto, which entrance(s)
has not been set forth on any plans approved by and on file with the
Department of Buildings, is being used as the residence of three or
more families, except that this provision shall not apply in the case
of any entrance which was originally constructed prior to the effective
date of this Building Zone Ordinance.
E.
There shall be a rebuttable presumption that a dwelling which has
been advertised in any newspaper, magazine or local advertising publication
as being available for sale or rent, which advertisement essentially
provides that such dwelling contains more than one separate living
unit, or may be occupied by more than one separate family, is being
used as a dwelling containing the number of units or families set
forth in such advertisement.
F.
There shall be a rebuttable presumption that a dwelling is being
used as the residence of more than one family if any two or more of
the following are found to exist by the Building Inspector: more than
one mailbox, mail slot or post office address; more than one doorbell;
a written lease or leases, or oral rental agreements, or the payment
of rent, for a portion of the dwelling; a separate exterior entrance
to a cellar or basement; three or more vehicles registered to the
dwelling where each of the owners of the vehicles have different surnames;
utilities, such as telephone, television, electric or water services,
are billed to two or more persons with different surnames.
G.
If any provision of § 255.1 shall be determined to be unconstitutional
or otherwise unenforceable, it shall not affect the constitutionality
or enforceability of the remaining provisions.
H.
Nothing in this § 255.1 shall be construed as lessening
or modifying any other rights or prerogatives of the Building Inspector
in the enforcement of the terms of the Building Zone Ordinance.
[Effective 3-29-2003]
It shall be a violation for a person or other legal entity to
solicit or advertise for purposes of selling or renting property or
portions of property to be utilized in violation or contravention
of the uses permitted in zoning districts in this ordinance.
A.
The Building Inspector shall require that the application for a building
permit and the accompanying plot plan shall contain all the information
necessary to enable him to ascertain whether the proposed building
complies with the provisions of this ordinance and the Building Code.
B.
No building permit shall be issued until the Building Inspector has
certified that the proposed building or alteration complies with all
the provisions of this ordinance and the Building Code.
C.
Until a building permit has been duly issued therefor, it shall be
unlawful for any person to commence work for the erection or alteration
of any building or structure; commence the clearing of any lot or
premises of trees, shrubs or similar growth prior to construction:
commence work on any lot or premises for any purpose or any use; or
make any excavation thereon for the removal of sand, gravel, stone
or topsoil, except when such removal is made for the purpose of farming
the lot or premises.
[Effective 7-2-1984; 10-18-1987]
D.
Tree preservation.
[Effective 10-18-1987]
(1)
No subdivision, lot reapportionment or site plan, regardless of area,
shall be approved, or a building permit issued, without due consideration
being given to the preservation of existing trees.
(2)
No building permit shall be issued until § 184-11 of the
Code of the Town of Hempstead, entitled "Review of site plans." has
been satisfied fully.
E.
Senior residence.
[Effective 8-31-1992]
(1)
For any use district which expressly permits use of a single-family
detached dwelling as a senior residence, the Department of Buildings
shall issue a building permit for such use or for installation of
a second kitchen and/or separate entrance authorized thereby, which
permit shall be valid for a period of two years from the date of issuance,
only upon satisfaction of the following requirements:
(a)
Submission of completed building permit application and payment
of fee.
(b)
Declaration.
[1]
Submission of a binding declaration of restrictive covenants
by the owner of the premises stating that both the owner and second-family
lessee agree to permit a representative of the Department of Buildings
to enter the premises on reasonable notice to ascertain whether the
current occupancy of the premises actually complies with the requirements
for designation of the premises as a senior residence and stating
that upon termination of the building permit authorizing use of premises
as a senior residence:
[a]
The right to maintain the second kitchen and/or
separate entrance installed therein on the basis of such permit shall
lapse immediately;
[b]
The owner shall cause the lawful removal of the
second kitchen and/or separate entrance within 90 days of the termination
of said permit; and
[c]
The owner shall permit a representative of the
Department of Buildings to enter the premises, upon reasonable notice,
to verify that the second kitchen and/or separate entrance has been
lawfully removed.
[2]
Said declaration shall also state that its provisions are binding
upon both the owner and second-family lessee of the premises as well
as their heirs, executors, legatees, assigns or successors in interest
and that such provisions shall run with the land. The declaration
shall be filed with the deed to the premises at the office of the
Clerk of the County of Nassau upon issuance of the permit.
(c)
Submission of a sworn affidavit of the owner of the premises
and/or, if applicable, the owner's coresident spouse stating that
persons age (at least 62 years) and relationship to the owner (self
or spouse) and stating that such person presently and permanently
resides at the premises and will notify the Department of Buildings,
in writing, immediately prior to termination of his or her residence
at the premises or immediately prior to any absence from the premises
for any reason for a continuous period of at least 30 days.
(d)
Submission of a sworn affidavit of the owner of the premises,
which owner shall be a natural person, stating that such owner presently
and permanently is residing at the premises, stating that such owner
shall notify the Department of Buildings, in writing, prior to termination
of such owner's residence at the premises or prior to such owner's
absence from the premises for a period of at least 30 days and stating
that such owner also shall notify the Department of Buildings, in
writing, prior to the termination of permanent residence or absence
from the premises for a period of at least 30 days of the owner's
coresident spouse if such spouse's residence at the premises is required
for designation of the premises as a senior residence.
(e)
Inspection of the premises by a representative of the Department
of Buildings indicating that there are no Building or Zoning Cede
violations outstanding at the premises, except any such violation
which verifiably would not exist upon issuance of the senior residence
permit and second kitchen and/or separate entrance installation permit
authorized thereby.
(2)
A permit authorizing use of premises as a senior residence or authorizing use of a second kitchen and/or separate entrance therefor shall not lapse upon the expiration of two years from the date of issuance or upon the expiration of successive two-year renewal periods, provided that prior to the scheduled date of expiration but not earlier than 30 days prior thereto updated affidavits are submitted in conformity with Subsection E(1)(c) and (d) hereof.
(3)
A permit authorizing use of premises as a senior residence or authorizing
use of a second kitchen and/or separate entrance therefor shall terminate
upon the occurrence of any of the following events:
(a)
Expiration of two years from date of issuance or renewal of the permit without further renewal as provided by Subsection E(2) hereof.
(b)
Discovery by the Department of Buildings of a materially false
statement contained in the building permit application and supporting
documents.
(c)
Discovery by the Department of Buildings that either the owner
or the owner's coresident spouse whose residence at the premises also
may be required for senior residence designation has not resided at
the premises for 90 or more days during any two-year period for which
the permit has been approved.
(d)
Discovery by the Department of Buildings of any Building or
Zoning Code violation at the premises and failure of the owner to
abate such violation within 90 days' notice thereof.
(5)
The following further regulations shall apply with respect to applications
for designation of premises as a senior residence:
(a)
At least one of the two separate dwelling areas authorized by
a senior residence permit shall not exceed 800 square feet in total
floor space.
[Effective 2-21-1994]
(b)
The senior residence shall be restorable readily to a one-family
residence in the judgment of the Department of Buildings.
(c)
Prior to lawful establishment of residency at the senior residence,
the second-family lessee shall submit to the Department of Buildings
a sworn affidavit specifically granting the Department of Buildings
the right to inspect the portion of the premises under the lessee's
control, upon reasonable notice, and specifically acknowledging that
such lessee understands that upon the lapse of the senior residence
permit the lessee shall be required to vacate the premises.
(d)
The Department of Buildings may require any applicant for or
holder of a senior residence permit to furnish documentary proof of
age required for designation acceptable to the Department.
(e)
The declaration of restrictive covenants required by § 256E(1)(b)
hereof shall be submitted to the Department of Buildings, together
with reimbursement for the fee charged by the Nassau County Clerk
for recording thereof.
(6)
Notwithstanding any provision of this ordinance to the contrary,
the Department of Buildings shall not designate premises as a senior
residence, nor grant a senior residence permit therefor, with respect
to any premises lying within the territorial limits of the Incorporated
Village of Atlantic Beach.
[Effective 6-14-1993]
F.
Notwithstanding any provision of this ordinance or any other applicable
provision of law to the contrary, no building permit application shall
be denied for violation of any height, story, minimum lot size or
floor area ratio restriction set forth in this ordinance, provided
that the Commissioner of Buildings determines that:
[Effective 12-31-2012]
(1)
The building permit application seeks permission to repair or replace
a building or structure damaged in the storm commonly known as "Hurricane
Sandy" occurring in the Town of Hempstead on or about October 29,
2012, and/or its aftermath; and
(2)
The violation of the height restriction is necessary in order for
the proposed building or structural repair or replacement to comply
with the elevation standards and requirements of the Federal Emergency
Management Agency (FEMA) in the adminisatration of the National Flood
Insurance Program (NFIP); and
(3)
The proposed height is no greater than necessary to comply with the
FEMA standards and requirements and, in the case of replacement dwellings,
does not exceed 30 feet above the applicable base flood elevation
plus two feet free board; and
(4)
The building permit application does not propose a decrease in any
yard area or side yard aggregate, or an increase in lot area occupied
by the building or structure proposed to be repaired or replaced;
and
(5)
The building permit application does not seek permission to repair
or replace buildings or structures which were constructed without
a building permit and violate the area requirements of this ordinance,
and were not vested with legal nonconforming status as to those requirements
as of October 29, 2012.
A.
For a permit for a new building or structure or for the alteration
of an existing one or the use of a building or land, the fees shall
be as required in the Town of Hempstead Code, § 86-11. For
the renewal of a permit when extended either by the Board of Appeals
or by the Town Board, the fee shall be $5. except for a renewal of
a sign permit under § 244B hereof, which shall be controlled
by said section.
[Effective 7-1-1979]
B.
Board of Appeals.
[Effective 5-20-1973; 4-5-1982; 5-29-1982; 3-23-1990; 7-21-1998; 5-30-2016]
(1)
Application for a variance: $250; additional fee of $50 for each
additional variance.
(2)
Application to maintain or construct a fence: $100.
(3)
Application to maintain or construct an accessory structure: $200.
(4)
Application to maintain or install a swimming pool: $200.
(5)
Application for a variance to construct or maintain a two-family
dwelling in a Business or Residence C District: $1,000.
(6)
Application for a special exception or use variance: $1,000, except that a special exception for an accessory structure on a parcel used as a one-family or two-family dwelling shall be $200, as listed in Subsection B(3) above.
(7)
Application to vary or waive off-street parking: $1,000.
(8)
Application to park in front yard setback area: $1,000; additional
fee of $500 for each additional front setback area.
(9)
Application for a subdivision of a parcel in violation of § 307
of the Building Zone Ordinance: $1,000.
(10)
Application pursuant to § 280-A of the Town Law of
the State of New York: $1,000.
(11)
Application for mother-daughter or immediate family residence:
$300.
(12)
Application for amusement rides at special events: $575.
(13)
Business-related renewal applications, except those provided
hereinafter: $1,000.
(14)
Non-business-related renewal applications, except those provided
hereinafter: $500.
(15)
Renewal application for fences: $75.
(16)
Application for reopening of a case not yet decided: $250.
(17)
Application for rehearing of a case already decided: $250.
(18)
Application for modification of a prior determination or condition
imposed thereunder: $150, per case.
(19)
Application for a verification of mother-daughter residence:
$150.
(20)
An application or appeal not provided for above: $500.
(21)
Corrective legal publication or any special legal publication
required by the Board of Appeals: $250 per insertion.
(22)
Application to extend the time for issuance of a building permit
under § 271 of this ordinance prior to expiration of allotted
time: $50; within four months after expiration: $75; over four months
after expiration: $500.
(23)
Application to extend the time for commencement of use or construction
of the principal building or structure under § 271 of this
ordinance within four months after issuance of building permit: $50;
within eight months after issuance of building permit: $75; all others:
$500.
(24)
Application to extend the time for completion of the principal
building and issuance of a certificate of occupancy under § 271
of this ordinance within two years after issuance of building permit:
$50; all others: $500.
C.
All permits issued under Article XXIII of this ordinance shall expire on the 31st day of December next ensuing the date of the issuance thereof. The following fees prescribed herein shall be paid to the Building Department, and no permits shall be issued by the Building Inspector until such fees shall have been paid. For a tourist camp, the fee for a permit shall be at the rate of $5 for each unit therein, but in no event less than $25.[1]
[1]
Editor's Note: Former Sec. P-1.7, which immediately followed
this subsection, was repealed 7-29-1952.
The Town Board shall make rules as to the manner of filing applications
for special exceptions or for authorization, or approval, or permits
for any use.
[Effective 11-29-2021]
A.
Upon the filing with the Town Board of any such application, the
Town Board shall fix the time and place for a public hearing thereon
and shall give notice thereof by publishing such notice once a week
for two consecutive weeks in a newspaper of general circulation published
in the Town.
B.
The notices required by Subsection A of this section shall state the location of the building or lot and general nature of the question involved.
C.
In addition to all other applicable requirements, any application
filed with the Town Board which requires a public hearing for either
rezoning, a special exception, or modification of a declaration of
restrictive covenants in respect to a specific parcel of property
shall also require:
(1)
Notice of the hearing by the applicant or the applicant's authorized
representative; utilizing a form approved by the Town Board.
(2)
The notice shall be mailed to interested parties as required under the provisions of § 276 of Article XXVIII.
(3)
Conspicuous posting of a sign or signs. A sign shall be located in
each front yard setback of the subject premises or, if there is no
such setback, then on the front wall of the building. The sign shall
be in place not less than 10 days' prior to the scheduled hearing
date and shall continue in place until after conclusion of the hearing.
The sign shall be subject to physical standards to be determined by
the Town Board, and those standards shall include the following minimum
requirements:
(a)
The visible face of the sign shall be not less than 24 square
feet in area;
(b)
The sign shall provide the words "NOTICE OF PUBLIC HEARING"
and the date, place and time of the hearing in letters that are black
and at least six inches high;
(c)
The sign shall set forth the type of relief requested before
the Town Board, in a manner approved by the Board; and
(d)
The background color of the face of the sign shall be either
bright orange or bright yellow.
(4)
Proof of compliance with all the above shall be provided by submission
of an affidavit acceptable to the Town Board and which shall include
a color photograph of the posted sign, and failure to abide by these
rules may be grounds for adjournment of the public hearing by the
Town, pending compliance herewith.
[Effective 5-5-1985; 12-21-1999]
Any special exception, site plan approval or GSS District inclusion
granted by the Town Board shall expire and be of no force and effect,
unless:
A.
A building permit shall have been issued pursuant thereto within
four months after the date of the decision of the Town Board; and
B.
The use granted by the Town Board shall have actually commenced,
or the construction of the principal building or structure authorized
by the Town Board shall have actually commenced, within four months
after the issuance of the building permit; provided that excavation
for a foundation shall not be deemed a commencement within the meaning
of this section; and
C.
The construction of any such principal building or structure shall
have been completed, and a certificate of occupancy issued, within
two years after the date of the issuance of the building permit therefor.
[Effective 5-5-1985; 12-21-1999; 8-25-2014]
The Town Board may, for good cause shown, grant a longer period
of time for the issuance of a building permit, commencement of construction,
and completion of a building or structure in pursuance thereof, than
that herein provided, either upon the granting of the authorization,
approval or special exception or thereafter upon application made
to it for such extension; provided, however, that such application
shall be made before or within one year after the time for the issuance
of a building permit or commencement of the building or structure
has expired. In determining whether good cause exists for such extension,
the Town Board shall consider, among other things, the nature and
extent of the construction and complexity thereof, practical difficulty
tending to delay construction, availability of utilities, strikes,
scarcity of labor or materials, war or acts of God. The aforesaid
application shall be accompanied by a fee of $350.
[Effective 12-21-1999; 8-25-2014]
Upon an application to Town Board based upon the original papers,
the Town Board may reinstate any grant which has expired as a result
of the operation of the foregoing provisions, in the interest of justice,
if it shall find that there has been no substantial change in material
circumstances since the time of its prior approval such as would justify
a denial of the application. If the Town Board shall reinstate an
expired grant, it may then impose such reasonable conditions thereon
as it may find appropriate. If the Town Board deems it necessary for
the rendering of any determination hereunder, the Town Board may require
that a public hearing be held to consider same. The fee for an application
hereunder shall be $350, which shall be increased by an additional
$350 if a hearing is required. In the event that the Town Board shall
grant reinstatement, then there shall also be due the separate and
additional fee of $700.
[Effective 12-8-1998; 8-25-2014]
A.
Each application to the Town Board for a permit for the use or operation
of a gasoline service station and battery and tire service station
shall be accompanied by a fee of $800. An applicant for a permit to
install additional gasoline storage tanks in an existing gasoline
filling station shall pay an application fee of $200 at the time of
filing such application.
B.
Each application for a variance from the provisions of the Gasoline Service Station District (GSS) of Article XXXIII of the Building Zone Ordinance shall be accompanied by a fee of $450.
C.
Each application to the Town Board for a special exception for a public garage or similar uses as stated in § 196N of Article XVI of the Building Zone Ordinance, § 209 of Article XVII of the Building Zone Ordinance and § 220 of Article XVIII of the Building Zone Ordinance shall be accompanied by a fee of $700.
[Effective 5-29-1982]
Every application to the Town Board for an amendment of the
Building Zone Ordinance or of the Building Zone Map or for a special
exception or other use permit and every application to the Board of
Zoning Appeals for a special exception shall be accompanied by an
area map prepared by a professional engineer or surveyor licensed
by the State of New York showing by courses and distances the property
which is the subject of the application and all of the properties
within 200 feet of any line of the property which is the subject of
the application and showing, to scale, all structures within the area
indicating the use of each, and showing the zoning of all the areas
depicted. The number of copies of the area map required for each application
shall be at the discretion of either Board, through rules promulgated
by either Board from time to time.
[Effective 4-5-1982]
Site plan approvals under § 305 of this ordinance
shall require payment of the following fees:
A.
An application fee based upon acreage at $500 for the first acre
and $150 for each additional acre or portion thereof.
B.
An application for a revised site plan shall require a fee of $500
per revision.
[Effective 4-10-1993]
C.
Churches and nonprofit charitable institutions shall be exempt from
this section.
[Effective 10-3-1968]
A.
Every applicant for a variance, change of zoning, approval of a plat,
exemption from a plat or official map, or any other license or permit
granted in the exercise of discretion under the provisions of this
ordinance, shall certify, in the manner hereinafter provided, the
name and address of each state or local officer or employee in the
county interested in the favorable exercise of such discretion.
B.
As used in this section, the terms "state or local officer or employee"
shall also include the members of the boards and commissioners of
local public authorities or other public corporations within the county,
but shall not include volunteer firemen or civil defense volunteers.
C.
A person is "interested" in such application when he or his spouse
or a person by consanguinity related to either of them within the
third degree:
(1)
Is the applicant;
(2)
Is an officer, director or employee of the applicant;
(3)
Legally or beneficially owns or controls the stock of a corporation
or is a member of the partnership venture or association which makes
the application; or
(4)
Has an agreement with such an applicant, expressed or implied, whereby
his compensation for services is to be dependent or contingent upon
the favorable exercise of such discretion.
D.
An applicant shall certify whether or not any of the foregoing provisions
are applicable by making a verified statement, under oath (unless
such statement is affirmed by an attorney under the provisions of
Article 21 of the Civil Practice Law and Rules) on a form for such
purpose provided by either the Town Clerk on behalf of the Town Board
or by the Clerk of the Board of Zoning Appeals, depending upon which
Board has jurisdiction over the application.
E.
The provisions of this section shall not apply to a corporation whose
stock is traded on any regularly organized stock market as defined
in Rule 4533 of the Civil Practice Law and Rules.
[Effective 4-5-1982; 8-25-1998]
Applications for extensions of time under § 271 of
this ordinance shall require application fees as provided in § 257B
of this article.
[Effective 2-6-1977; 8-25-2014]
A.
Every application for the rezoning of a parcel to CA or CA-S Residence District heretofore or hereafter granted by the Town Board in pursuance of the provisions of this ordinance shall be subject to a requirement that all necessary building permits shall be obtained and the physical erection and construction of the principal building or structure related to the rezoning, so granted, shall be commenced within 18 months of the date of the grant. Subject to Subsections B and C below, in the event that said erection or construction has not been so commenced, any CA or CA-S zoning designation shall expire, whereby the premises shall return to the zoning district and status which had existed immediately prior to the said grant.
B.
Notwithstanding Subsection A above, such expiration shall be subject to extensions of time granted by the Town Board for good cause shown, provided the request for the extension is submitted to the Town Clerk and the Building Inspector prior to expiration. The fee for such an extension of time shall be $350.
C.
Upon an application to the Town Board based upon the original papers,
the Town Board may reinstate any grant which has expired as a result
of the operation of the foregoing provisions, in the interest of justice,
if it shall find that there has been no substantial change in material
circumstances since the time of its prior approval such as would justify
a denial of the application. If the Town Board shall reinstate an
expired grant, it may then impose such reasonable conditions thereon
as it may find appropriate. If the Town Board deems it necessary for
the rendering of any determination hereunder, the Town Board may require
that a public hearing be held to consider same. The fee for an application
hereunder shall be $350, which shall be increased by an additional
$350 if a hearing is required. In the event that the Town Board shall
grant reinstatement, then there shall also be due the separate and
additional fee of $700.
