A.
There shall be a Board of Appeals consisting of seven members appointed
by the Town Board.
B.
Such Board of Appeals shall, consistent with the Town Law, determine
its own rules and procedure governing, among other things, the manner
of bringing on appeals and applications for hearing, the notice to
be given of its hearings in addition to statutory requirements, and
the date and time of hearings and decisions.
C.
The Board of Appeals shall investigate and report upon all matters
referred to it by the Town Board.
D.
The Board of Appeals shall have the powers granted by the Town Law
and the following powers:
(1)
Variance powers (matters of appeal to the Board of Appeals). Where
there are practical difficulties or unnecessary hardships in the way
of carrying out the strict letter of these regulations, the Board
of Appeals shall have power to vary or modify the application of such
regulations so that the spirit of this ordinance shall be observed,
public safety and welfare secured and substantial justice done.
(a)
Where any subdivision or lot reapportionment or site plan is
the subject of an application for a variance, the Board of Zoning
Appeals shall review the application for the purpose of considering
the preservation of existing trees on the site. The application shall
contain a specific plan, filed with the Department of Buildings, containing
a tree legend which will identify by number, species and caliper (four
inches or more) those trees to be preserved, removed and/or replaced.
In reviewing the application, the Board of Zoning Appeals shall consider
the following criteria:
[Effective 10-18-1987)
[1]
The condition of the trees with respect to disease and danger
of falling, proximity to existing or proposed structures and interference
with utility services.
[2]
The necessity of the removal or alteration of the tree in question.
[3]
Compliance with regulations of the New York State Department
of Environmental Conservation and the Town of Hempstead Department
of Conservation and Waterways if the proposed tree removal or alteration
site is adjacent to freshwater wetland boundaries.
[4]
The character established at the proposed site of removal or
alteration with respect to existing tree density.
[5]
The impact of any removal or alteration upon existing screening
of any road or highway bordering the property.
[6]
The recommendations of the Department of Buildings, which shall
review the site plan for tree preservation with a landscape architect.
(2)
Special powers and rules (matters of original jurisdiction and by
application to the Board of Appeals). Whenever a use, or the location
thereof, is permitted only if the Board of Appeals shall approve thereof,
the Board of Appeals may, in a specific case and after notice and
public hearing, authorize such permissive use and its location within
the district in which this ordinance specifies the permissive use
may be located, subject, however to the following:
(a)
Before such approval shall be given, the Board of Appeals shall
determine that:
[1]
The use will not prevent the orderly and reasonable use of adjacent
properties or of properties in adjacent use districts;
[2]
The use will not prevent the orderly and reasonable use of permitted
or legally established uses in the district wherein the proposed use
is to be located or of permitted or legally established uses in adjacent
use districts;
[3]
The safety, the health, the welfare, the comfort, the convenience
or the order of the Town will not be adversely affected by the proposed
use and its location; and
[4]
The use will be in harmony with and promote the general purposes
and intent of this ordinance.
(b)
In making such determination, the Board of Appeals shall also
give consideration, among other things, to:
[1]
The character of the existing and probable development of uses
in the district, and the peculiar suitability of such district for
the location of any of such permissive uses.
[2]
The conservation of property values and the encouragement of
the most appropriate uses of land.
[3]
The effect that the location of the proposed use may have upon
the creation of undue increase of vehicular traffic congestion on
public streets, highways or waterways.
[4]
The availability of adequate and proper public or private facilities
for the treatment, removal or discharge of sewage, refuse or effluent
(whether liquid, solid, gaseous or otherwise) that may be caused or
created by or as a result of the use.
[5]
Whether the use, or materials incidental thereto or produced,
may give off obnoxious gases, odors, smoke or soot.
[6]
Whether the use will cause disturbing emission of electrical
discharges, dust, light, vibration or noise.
[7]
Whether the operations in pursuance of the use will cause undue
interference with the orderly enjoyment by the public of parking or
of recreational facilities, if existing, or if proposed by the Town
or by other competent governmental agency.
[8]
The necessity for bituminous-surfaced space for purposes of
off-street parking of vehicles incidental to the use, and whether
such space is reasonably adequate and appropriate and can be furnished
by the owner of the plot sought to be used within or adjacent to the
plot wherein the use shall be had.
[9]
Whether a hazard to life, limb or property because fire, flood,
erosion or panic may be created by reason of or as a result of the
use or by the structures to be used therefor or by the inaccessibility
of the property or structures thereon for the convenient entry and
operation of fire and other emergency apparatus or by the undue concentration
or assemblage of persons upon such plot.
[10]
Whether the use or the structures to be used therefor
will cause an overcrowding of land or undue concentration of population.
[11]
Whether the plot area is sufficient, appropriate
and adequate for the use and the reasonable anticipated operation
and expansion thereof.
[12]
The physical characteristics and topography of
the land.
[13]
Whether the use to be operated is unreasonably
near to a church, school, theater, recreational area or other place
of public assembly.
[14]
In applications for special exceptions for dish-type
satellite signal receiving antennas, the Board of Zoning Appeals,
in addition to the foregoing, shall also give consideration to the
following
[Effective 12-16-1983]:
[a]
Whether a hazard to life, limb or property because
of snow, wind or storm may be created by reason of or as a result
of the installation of such antenna.
[b]
Whether a hazard to life, limb or property because
of structural impairment, disassembly or collapse may be created by
reason of or as a result of the installation of such antenna.
[c]
Whether solar access may be denied to an abutting
property by reason of or as a result of the installation of such antenna.
[15]
In applications seeking permissive uses, the Board
of Zoning Appeals shall give consideration to the preservation of
existing trees on the site. An application for a permissive use shall
contain a specific plan, filed with the Department of Buildings, containing
a tree legend which will identify by number, species and caliper (four
inches or more), those trees to be preserved, removed and/or replaced.
In reviewing the application, the Board of Zoning Appeals shall consider
the following criteria;
[Effective 10-18-1987]
[a]
The condition of the tree with respect to disease
and danger of falling, proximity to existing or proposed structures
and interference with utility services.
[b]
The necessity of the removal or alteration of the
tree in question.
[c]
Compliance with regulations of the New York State
Department of Environmental Conservation and the Town of Hempstead
Department of Conservation and Waterways if the proposed tree removal
or alteration site is adjacent to freshwater wetland boundaries.
[d]
The character established at the proposed site
of removal or alteration with respect to existing tree density.
[e]
The impact of any removal or alteration upon existing
screening of any road or highway bordering the property.
[f]
The recommendations of the Department of Buildings,
which shall review the site plan for tree preservation with a landscape
architect.
(c)
Each application under this Subsection B shall be accompanied by a plot plan prepared by a registered architect, a licensed professional engineer or licensed surveyor, showing the location of each structure proposed to be erected on the plot which is the subject of said application and showing the dimensions of each such structure. The granting by the Board of Appeals of any such application shall be limited to structures of the dimensions shown on said plan and located as shown thereon unless the determination of said Board making such grant shall expressly provide otherwise. In making such determination where the application is for a mother-daughter permissive use, the Board of Appeals shall also give consideration, in addition to the foregoing, to:
(d)
As conditions to the granting of a mother-daughter application,
the following shall be required by the Board of Zoning Appeals:
[1]
That a restrictive covenant shall be submitted to the Board
of Zoning Appeals and filed with the Nassau County Clerk's office
at the applicant's expense, and which shall declare the limitations
on the use of the mother-daughter residence in accordance with the
determination of the Board of Zoning Appeals.
[2]
That the Town of Hempstead shall have the right to inspect the
premises during reasonable hours to ascertain whether the use is in
compliance with the determination of the Board of Zoning Appeals.
The applicant shall execute the consent for such inspection to be
filed with the Town Clerk.
[3]
Special exception grant for mother-daughter shall be terminated
upon the happenings of the following events:
[4]
As a part of the application, the resident owner/applicant for
a mother-daughter residence shall provide to the Board of Appeals
a photo ID acceptable to the Board of each person who the resident
owner/applicant proposes to be entitled, by reason of familial relationship,
to reside (with his or her family) at a second separate living unit
within the dwelling. The resident owner/applicant shall disclose to
the Board his or her familial relationship to each such person, and
shall provide such proof of identity and familial relationship as
the Board may demand. Any person whose necessary information as required
above has not been submitted to, and approved by, the Board of Appeals
shall not be a person whose residence at the premises constitutes
qualification for mother-daughter residence status, regardless of
familial relationship to the resident owner/applicant, pending further
application to, and approval by, the Board of Appeals, if any. If
at any point no fee resident owner and/or approved qualifying relative
shall be a permanent resident of his or her respective dwelling unit,
the mother-daughter residence status shall immediately terminate,
without need of further action by the Board of Appeals or any other
instrumentality of the Town. In such case, the occupancy of the dwelling
by a second family and maintenance of a second kitchen shall both
become immediate and continuous nonpermitted uses in the district
where they are situated, unless and until they are abated. The term
"permanent resident" shall mean a person who actually resides at the
premises in excess of 186 days per year; excepting active federal
military duty.
[Effective 4-21-2009]
(3)
The Board of Appeals shall, in authorizing such permissive uses,
impose such conditions and safeguards as it may deem appropriate,
necessary or desirable to preserve and protect the spirit and objectives
of this ordinance. Where the Board of Appeals deems it appropriate
under all of the circumstances of a case, it may impose a condition
of a grant which shall make the grant temporary in nature, for a duration
of time to be fixed by the Board, subject to renewals as the Board
may deem appropriate. Any renewals shall be granted only if the Board
shall find that the grant has not had an unreasonably deleterious
effect on surrounding area character and property values, and/or the
use and enjoyment of neighboring properties, during the temporary
period, or the most recent temporary renewal period. The Board shall
have authority to make any temporary grant permanent, upon the expiration
of a temporary period.
[Effective 1-10-2015]
The Board of Appeals shall make rules as to the manner of filing
appeals and applications for variances or for special exceptions.
After filing with the Board of Appeals, and payment of the requisite
fees, of an appeal for a variance or of an application for special
use, the Board of Appeals shall fix a time and place for a public
hearing thereon and shall give notice thereof by publishing a notice
thereof in accordance with the Town Law.
[Effective 7-10-2011]
In any case filed with the Board of Appeals not involving single-family
or two-family detached residential use, and in addition to all other
applicable requirements, the following regulations shall apply to
public hearings thereon:
A.
Notice of the hearing shall be made by the applicant or the applicant's
authorized representative, utilizing a form approved by the Board
of Appeals.
B.
The notice shall be mailed to owners of all property directly abutting
the subject premises, by certified mail, return receipt requested,
to their last known address. Additionally, the notice shall be mailed
by first-class mail to owners of all other properties within a three-hundred-foot
radius of the subject premises. All mailings shall be made at least
21 days and not more than 28 days prior to the date of hearing.
C.
Additionally, notice shall be provided by 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
21 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 Board of Appeals, and
those standards shall include the following minimum requirements:
(1)
The visible face of the sign shall be not less than 24 square
feet in area;
(2)
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;
(3)
The sign shall set forth the type of relief requested before
the Board of Appeals, in a manner approved by the Board; and
(4)
The background color of the face of the sign shall be either
bright orange or bright yellow.
D.
Proof of compliance with all the above shall be provided by submission
of an affidavit acceptable to the Board of Appeals, and failure to
abide by these rules may be grounds for adjournment of the public
hearing by the Board of Appeals, pending compliance herewith.
[Effective 4-24-1972]
Every variance, or application for a special exception or special
use, granted by the Board of Zoning Appeals in pursuance of the provisions
of this ordinance shall become null, void and of no further force
and effect, unless:
A.
A permit shall have been issued pursuant thereto within four months
after the filing with the Town Clerk of the decision of the Board
of Zoning Appeals;
B.
The use so granted shall have been actually commenced upon the premises,
or the erection and construction of the principal building or structure,
for the construction or use of which a variance or special exception
or special use shall have been granted by the Board of Zoning Appeals,
shall have been actually commenced within four months after issuance
of permit; provided, however, that excavation for a building foundation
shall not be deemed a commencement of the erection of such building
or structure within the meaning of this section; and
C.
The erection and construction of any such principal building or structure
shall have been completed and a certificate of occupancy shall have
been issued within two years after the date of the issuance of the
permit therefor.
[Effective 4-24-1972; 5-5-1985]
The Board of Zoning Appeals may, for good cause shown, grant
a longer period of time for the issuance of a permit, commencement
of construction and completion of a building or structure in pursuance
thereof, than that herein provided either upon the granting of the
variance or application for special uses 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 permit or commencement of the building or structure has expired.
In determining whether good cause existed for such extension, the
Board of Zoning Appeals shall consider, among other things, the nature
and extent of the construction and the complexity thereof, practical
difficulty tending to delay construction, availability of utilities,
strikes, scarcity or labor or materials, war or acts of God.
The Board of Appeals may, after public notice and hearing, permit
the following uses in the districts designated:
A.
In an A Residence District, AA Residence District, B Residence District
or Levittown Planned Residence District (LPRD):
[Effective 12-24-1973; 10-31-1987]
B.
C.
In a Business District:
(1)
Any permitted use whose vehicular access is limited to one or more
two-lane roadways, and exceeds the following thresholds:
[Effective 4-27-2004; 8-30-2007]
(a)
Thresholds.
[1]
Single-family and two-family detached dwelling: 100 dwelling
units.
[2]
Club, fraternity house or lodge: 25 employees.
[3]
Public school, parochial school, private school for instruction
of elementary grades, academic grades, or both, chartered by the Board
of Regents of the State of New York; college; university: 8,400 square
feet.
[4]
Religious use: 8,500 square feet.
[5]
Philanthropic use, excluding a correctional institution: 15,000
square feet.
[6]
Hospital, sanatorium or a dormitory of an educational institution:
44,500 square feet.
[7]
Music school or dancing school: 17,400 square feet.
[8]
Agriculture, greenhouse and nursery: 10,000 square feet.
[9]
(Reserved]
[10]
(Reserved]
[11]
Office: 65,000 square feet; bank: 2,400 square
feet.
[12]
Stores and shopping centers.
[a]
Shopping center: 20,150 square feet.
[b]
Supermarket: 9,300 square feet.
[c]
Convenience market: 1,300 square feet.
[d]
Video rental store: 3,200 square feet.
[e]
Pharmacy/drug store: 9,400 square feet.
[f]
All other stores for the sale, at retail, of articles
to be used or consumed off the premises: 14,200 square feet.
[13]
Restaurant other than a diner, lunch wagon, drive-in
restaurant, drive-in luncheonette, drive-in counter or drive-in refreshment
stand: 5,000 square feet; fast-food restaurants: 1,850 square feet.
[14]
(Reserved]
[15]
Carpenter, hand cabinetmaking, furniture repair
or upholstery shop, electrical shop, hand metalworking, blacksmith,
tinsmith, new and unused plumbing, gas, steam or hot-water fitting
shop: 109,000 square feet.
[16]
Hand laundry, custom tailoring, hand dressmaking,
shoemaking and repairing: 14,200 square feet.
[17]
Sale or repair of jewelry, watches, clocks or
optical goods, musical, professional or scientific instruments: 16,100
square feet.
(b)
CONVENIENCE MARKET
FAST-FOOD RESTAURANT
PHARMACY/DRUGSTORE
SHOPPING CENTER
SUPERMARKET
VIDEO RENTAL STORE
For the use of this subsection only, the above terms are defined
as follows:
A market that sells convenience foods, newspapers, magazines
and beer, which does not sell gasoline.
A restaurant other than a diner, lunch wagon, drive-in restaurant,
drive-in luncheonette, drive-in counter or drive-in refreshment stand,
which sells prepared food over a counter and is characterized by a
large carryout clientele, long hours of service, and high turnover
rates for eat-in customers.
A retail facility that sells prescription and nonprescription
medication. These facilities may also sell cosmetics, toiletries,
medications, stationery, personal care products, limited food products,
and general merchandise.
An integrated group of establishments, comprised usually
but not exclusively of retail and personal service establishments,
that is planned, developed, owned and managed as a unit.
A freestanding or attached retail store which sells an assortment
of food, food preparation materials and household cleaning items.
A business specializing in the rental of home movies and
video games.
(2)
(Reserved]
(4)
Storage warehouses; express depots or yards; merchandise receiving
or distributing depots or yards; storage of motor vehicles, boats,
contractors' equipment, motor trucks or buses when not accessory to
premises used primarily for the sale thereof; yards for storage or
sale of coal or building materials.
(5)
Newspaper or job printing or bookbinding.
(6)
Places of amusement or public assembly. However, the grant of any
cabaret use by the Board of Zoning Appeals shall be limited to the
specific cabaret use applied for and approved by the Board of Zoning
Appeals and no other cabaret use. This section shall apply to any
cabaret use hereafter or previously granted by the Board of Zoning
Appeals. For purposes of this section, the term "cabaret" shall be
the same as defined in Chapter 96 of the Code of the Town of Hempstead.
[Effective 3-31-1997]
(7)
Stores or salesrooms or open lots for the display or sale of used
automobiles, whether or not maintained in connection with the sale
or display of new automobiles.
(8)
Storage, sale or distribution of ice, coal, new or used lumber, used
plumbing material or fittings, used household equipment or materials,
used automotive parts, equipment or supplies, and live poultry.
(9)
Bowling alleys.
(10)
Stores or shops for the sale of food, refreshments or other
edibles or drink, which provide or make available any facility (including
but not limited to parking or standing space on the premises for vehicles)
for or permits the consumption of such food, refreshments or other
edibles or drink on the premises outside the building or structure
occupied by such store.
(11)
Hotels and motels.
[Effective 3-9-2004]
(12)
Machine-operated laundry or dry-cleaning establishments, whether
the machinery is operated or controlled by personnel of the establishment
or by customers thereof.
(13)
Day camps.
(14)
Diners, lunchwagons, drive-in restaurants, drive-in luncheonettes;
drive-in lunch counters or drive-in refreshment stands.
(15)
Any use of the same general character as any of the uses expressly
permitted in a Business District by this ordinance.
(16)
Accessory uses on the same lot with and customarily incidental
to any use expressly permitted in a Business District by this ordinance
or permitted pursuant to this section.
D.
In a Light Manufacturing District:
(1)
Places of amusement or public assembly. However, the grant of any
cabaret use by the Board of Zoning Appeals shall be limited to the
specific cabaret use applied for and approved by the Board of Zoning
Appeals and no other cabaret use. This section shall apply to any
cabaret use hereafter or previously granted by the Board of Zoning
Appeals. For purposes of this section, the term "cabaret" shall be
the same as defined in Chapter 96 of the Code of the Town of Hempstead.[2]
[Effective 3-31-1997]
[2]
Editor's Note: Former Sec. Z-5.0, Subsection d17, which immediately
preceded this subsection, was repealed 8-14-1956.
(2)
Hotels and motels.
[Effective 3-17-1983; 3-9-2004]
(3)
A floor area ratio in excess of 0.4 for any permitted use.
[Effective 8-5-1989]
(4)
Any
facility for the processing or recycling of putrescible or nonputrescible
waste materials, located on property any part of which is within 500
feet from any premises zoned Residence A or Residence B and actually
improved with a single-family dwelling.
[Effective 5-8-2006]
E.
In an Industrial District:
(1)
Hotels and motels.
[Effective 3-17-1983; 3-9-2004]
(2)
Places of amusement or public assembly. However, the grant of any
cabaret use by the Board of Zoning Appeals shall be limited to the
specific cabaret use applied for and approved by the Board of Zoning
Appeals and no other cabaret use. This section shall apply to any
cabaret use hereafter or previously granted by the Board of Zoning
Appeals. For purposes of this section, the term "cabaret" shall be
the same as defined in Chapter 96 of the Code of the Town of Hempstead.
[Effective 3-31-1997]
(3)
A floor area ratio in excess of 0.4 for any permitted use.
[Effective 8-5-1989]
(4)
Any
facility for the processing or recycling of putrescible or nonputrescible
waste materials, located on property any part of which is within 500
feet from any premises zoned Residence A or Residence B and actually
improved with a single-family dwelling.
[Effective 5-8-2006]
F.
In any district:
(1)
Parking fields, either public or private, for the parking of passenger
vehicles only, but not for display or sale of automobiles.
(2)
Amusement-ride facilities on a temporary basis not to exceed 10 days'
duration, except when amusement-ride facilities are conducted on the
grounds and parking area immediately adjacent to the property of the
Nassau County Veterans Memorial Coliseum, in which event such amusement-ride
facilities shall be permitted on a temporary basis not to exceed 17
days' duration
[Effective 5-8-1977; 4-24-1992]
(3)
Parking of automobiles in the minimum area required for the front
yard setback.
[Effective 9-12-1995]
(4)
Religious
uses; private educational uses.
[Effective 8-30-2007]
G.
In the Edu-Cultural (E), Mitchel Field Hotel (MFH), Mitchel Field
Office (MFO), (MFO-I) and (MFO-II), Business (X), Light Manufacturing
(LM), Industrial (Y), Marine Commercial (MB), Marine Recreation (MC),
Marine Resort (MD) and Urban Renewal Highway Commercial (URD-HC) and
Planned Unit Development (PUD) Use Districts:
[Effective 12-16-1983; 5-17-1993]
(1)
Installation of dish-type satellite signal-receiving antennas.
H.
In a Marine Recreation District:
[Effective 6-26-1987]
(1)
Places of amusement or public assembly, but only as an accessory
use to an expressly permitted use pursuant to § 232.3B.
However, the grant of any cabaret use by the Board of Zoning Appeals
shall be limited to the specific cabaret use applied for and approved
by the Board of Zoning Appeals and no other cabaret use. This section
shall apply to any cabaret use hereafter or previously granted by
the Board of Zoning Appeals. For purposes of this section, the term
"cabaret" shall be the same as defined in Chapter 96 of the Code of
the Town of Hempstead.
[Effective 3-31-1997]
[Effective 3-3-2016]
Any application which the applicant asserts to impact constitutionally
protected freedom of expression shall have a preference over all other
cases before the Board of Appeals in its review and scheduling of
a public hearing, and the Department of Buildings, Department of Highways
and Department of Engineering shall expedite all their ancillary functions
with respect thereto, both prior to and after presentation to the
Board of Appeals. The Board shall render its decision on a completed
application in no more than 15 days after the hearing record is closed,
or at the next hearing scheduled, whichever time is shorter (or at
such other time as the applicant and Board may agree to). Nothing
herein shall be construed to prevent an adjournment of the hearing
by request of any aggrieved party for good cause shown, or to supersede
or override any mandatory state fire and building code regulations,
the State Environmental Quality Review Act, or any other applicable
laws and regulations. If necessary, the applicant shall be entitled
to expedited review in a court of competent jurisdiction, in an Article
78 proceeding or other judicial remedy.
