[1]
Editor's Note: This resolution corrected article and section
number designations without any change in the actual content of the
8-30-2007 legislation.
A.
By this legislation, it is the intent of the Town Board of the Town
of Hempstead to utilize the zoning authority to establish a sensible
regulatory scheme in regard to the introduction or expansion of religious
or educational uses in the Town. The several provisions hereof are
designed and intended to strike a fair and appropriate balance between
the needs and rights of educational and religious institutions that
desire to establish new facilities or expand existing ones in the
Town, and the concerns of the surrounding Town inhabitants about the
potential adverse effects on the quality of life that these uses may
engender.
B.
This legislation fully recognizes the settled public policy in the
State of New York that systematic exclusion of religious or educational
institutions from a zoning district is beyond the power of any municipality,
because such uses are always presumed to be in furtherance of the
public health, safety and morals. However, it is equally established
in New York that this presumption is subject to rebuttal on a case-by-case
basis by a substantial showing that a proposed religious or educational
use at a particular location would actually have a net negative impact
on the surrounding neighborhood. Some specific instances in which
religious or educational uses may be found to have negative effects
are where they may impose:
C.
This legislation accommodates the competing interests as aforesaid
by establishing a reasonably drawn special permit requirement for
applications seeking to establish or expand religious or educational
uses in the Town, to be implemented by the Board of Appeals.
D.
Ultimately, the governing standard to guide the Board's deliberations
in passing on the merits of such applications shall be the protection
of the public's health, safety, welfare and morals. Where it may be
shown that a proposed religious or educational use will sufficiently
detract from the public's health, safety, welfare or morals, an application
for a special exception to establish or expand the institution may
properly be denied by the Board. In less adverse cases, appropriate
restrictions may be imposed in the form of conditions to be attached
to the grant of a special exception, limiting either the extent of
the religious or educational use itself, or the nature and/or extent
of its proposed accessory uses, if any. In any event, such conditions
shall be reasonably drawn to counteract the deleterious effects on
the public's welfare, but not, by their cost, magnitude or volume,
operate indirectly to exclude the religious or educational use altogether.
In this article, the following terms shall have the meanings
provided:
A use of a building or premises that, while not religious
or educational in nature, is customarily incidental to the primary
use of a building or premises as a religious or educational use.
A private school that has been chartered by the Board of
Regents of the State of New York.
A house of worship or other place regularly and primarily
devoted to religious practice.
A.
Upon the effective date of this article and at all times thereafter,
no religious use or educational use may be established or expanded
in any use district of the Town unless and until a special exception
permit has been granted to authorize same, as provided in this article.
B.
Accessory uses.
(1)
Upon the effective date of this article and at all times thereafter,
no accessory use shall be permitted in any use district of the Town
unless it is located on the same parcel as the primary religious or
educational use to which it is accessory, or immediately adjacent
thereto, and a special exception permit has been granted by the Board
of Appeals, expressly finding same to be a bona fide accessory use
and authorizing its conduct in conjunction with the on-site primary
religious or educational use to which it relates, or such proposed
accessory use is not on the same or immediately adjacent premises
but is in any event an independently permitted use in the zoning district
in which it is located, such that any proposed accessory use which
is not on the same parcel as its primary religious or educational
use, or immediately adjacent thereto, and is not an independently
permitted use in the zoning district in which it is located, shall
be deemed a prohibited use under this ordinance and shall not be permitted
except upon the grant of a use variance, regardless of either its
status as "customarily incident" to a primary religious or educational
use that is located elsewhere or its affiliation or legal relationship
with any such religious or educational use.
A.
All applications for a special exception permit under this article
shall originate by the filing of a building permit application with
the Commissioner of Buildings.
B.
If the application is denied for a violation of this article, applicant
may file an application to the Board of Appeals for a special exception
permit as provided herein, on a form to be provided by the Board.
C.
The special exception procedure shall be subject to the same public
notice, hearing and decisional requirements as are applications to
the Board of Appeals in the case of area or use variances.
D.
The Board of Appeals, in passing on applications for special exception
permits hereunder, shall resolve all questions of fact that are put
before it, and shall determine whether a grant of the application
shall protect and preserve the public's health, safety, welfare and
morals. In this regard, it shall specifically consider whether the
particular religious use, educational use or accessory use may impose
the following negative impacts:
(1)
A significant traffic congestion problem that jeopardizes public
safety;
(2)
A substantial adverse effect on surrounding property values;
(3)
A significant over-taxation of basic municipal services;
(4)
A cognizable and substantial fire or other emergency risk; and/or
(5)
Any other negative impact, including chronic conditions of substantial
noise disturbance or garbage accumulation, which may necessarily occur
as a result of the conduct of the proposed use, as may be borne out
by substantial evidence in the record before the Board.
E.
Decision.
(1)
If the Board of Appeals finds that the proposed religious, educational
or accessory use may be introduced or expanded at the proposed location
without any significant negative impacts, it may grant the special
exception permit requested.
(2)
If the Board finds that such proposed use may not be introduced or
expanded at the proposed location without causing significant negative
impacts, but that such negative impacts may be substantially mitigated
by imposition of appropriate conditions that do not, by their cost,
magnitude or volume, operate indirectly to exclude the use altogether,
then the Board may grant the special exception, subject to such conditions.
(3)
If the Board finds that such proposed use may not be introduced or
expanded at the proposed location without causing significant negative
impacts, and that such negative impacts cannot be substantially mitigated
by imposition of appropriate conditions that do not, by their cost,
magnitude or volume, operate indirectly to exclude the use altogether,
and that the degree of negative impact is such that the introduction
or expansion of the proposed religious, educational or accessory use
at a particular location would actually have a net negative impact
on the surrounding residential neighborhood or be substantially dangerous
to the surrounding area, then the Board may deny the special exception.
The fees for a special exception permit or a renewal thereof under this article shall be in accord with the fees applicable to special exceptions under § 257 of Article XXVI of this ordinance.
This article shall be construed such that the regulations hereof shall not relieve an applicant for relief hereunder from full compliance with other provisions of this ordinance, including but not limited to Article XXXII in relation to private schools, as well as any and all other applicable law or regulations, except that if there shall be a conflict between this article and any other law or regulation, then the provisions of this article shall control. If any provision of this article is held unconstitutional or otherwise unenforceable by any court of competent jurisdiction to the extent that the Town may become bound thereby not to enforce it, then it is only that specific provision which shall not be enforced, and the balance of the provisions hereof shall thereafter remain in full force and effect.
