[Adopted 3-9-2009 by L.L. No. 2-2009 (Ch. 55, Art. I, of
the 1983 Code)]
The Town Code of the Town of Kingsbury is hereby amended by
adding thereto a new chapter, entitled "Junkyard Regulation and Licensing
Law of the Town of Kingsbury."
A clean, wholesome, attractive environment is declared to be
of importance to the health and safety of the inhabitants of the Town
of Kingsbury and the safeguarding of their material rights against
unwarrantable invasion, and, in addition, such an environment is deemed
essential to the maintenance and continued development of the economy
of the Town and the general welfare of its citizens. It is further
declared that the unrestrained accumulation of junk is a hazard to
such health, safety and welfare of the citizens of the Town, necessitating
the regulation, restraint and elimination thereof. At the same time,
it is recognized that the maintenance of junkyards, as hereinafter
defined, is a useful and necessary business and should be encouraged
when not in conflict with the express purposes of this section, in
compliance with the requirements of this article, and otherwise operated
and maintained in a lawful manner.
The following definitions apply for purposes of this article,
notwithstanding any other provision of the Code of the Town of Kingsbury:
CONTAINER
Any portable device in which a material is stored, transported,
treated, disposed of or otherwise handled.
CONTINGENCY PLAN
A document describing organized, planned and technically
coordinated and financially feasible courses of action to be followed
in case of emergency or other special conditions. Such a document
prepared in accordance with New York State Environmental Conservation
Law §§ 27-2301 and 27-2303 shall be sufficient for
purposes of this article.
DISCHARGE
The accidental or intentional releasing, spilling, leaking,
pumping, pouring, emitting, emptying, discharging, escaping, leaching,
dumping, burying, abandoning or otherwise disposing into the environment
(including, without limitation, surface water or groundwater) of petroleum
as defined in § 172 of the New York State Navigation Law
or a hazardous substance as defined in § 27-1301(1) of the
New York State Environmental Conservation Law (except as to petroleum),
or 42 U.S.C. § 9601(14) (except as to petroleum).
GOOD CONDITION
No severe rusting, apparent structural defects or deteriorations
and not leaking.
GROUNDWATER
Water below the land surface in a saturated zone of soil
or rock. This includes perched water separated from the main body
of groundwater by an unsaturated zone.
JUNK
Junk motor vehicles and junk appliances as defined in this
article, as well as scrap iron, scrap tin, scrap brass, scrap copper,
scrap lead or scrap zinc, ferrous or nonferrous scrap, and all other
scrap metals and their alloys, and bones, rags, used cloth, used rubber,
used rope, used tinfoil, used bottles, old or used machinery, boxes
or crates, used pipe or used pipe fittings, used tires, other discarded
materials and other manufactured goods that are so worn, deteriorated
or obsolete as to make them unusable in their existing condition,
but are subject to being dismantled or recycled.
JUNK APPLIANCE
Any household appliance, including but not limited to a stove,
washing machine, dryer, dishwasher, freezer, refrigerator, air conditioner,
water heater, computer, television, which is stored outside of any
residence or enclosed structure for recycling or reclamation purposes.
JUNK MOTOR VEHICLE
Any motor vehicle, or used parts or waste materials from
motor vehicles which, taken together, equal in bulk one or more such
vehicle(s), which is unlicensed or unregistered; or abandoned, wrecked,
stored, discarded, dismantled or partly dismantled; or not in a condition
for legal use upon the public highways. The fact that a motor vehicle
does not display a current motor vehicle registration or license plate
shall be presumptive evidence that such motor vehicle is not in a
condition for legal use upon the highways.
JUNKYARD
A.
Any of the following:
(1)
Any place of storage or deposit, whether in connection with
another business or not, where two or more junk motor vehicles are
held, whether for the purpose of resale of used parts therefrom, for
the purpose of reclaiming for use some or all of the materials therein,
whether metal, glass, fabric or otherwise, for the purpose of disposing
of the same or for any other purpose, and where such junk or junk
motor vehicle is stored outside of any residence or enclosed structure.
(2)
Any place of storage or deposit for recycling or reclamation
of any household appliance, including but not limited to a stove,
washing machine, dryer, dishwasher, freezer, refrigerator, air conditioner,
water heater, computer, television, which is stored outside of any
residence or enclosed structure.
(3)
An establishment having facilities for processing iron, steel
or ferrous or nonferrous scrap and whose principal product is scrap
iron, steel or ferrous or nonferrous scrap for remelting purposes.
(4)
Any business required to be licensed as a junkyard pursuant
to § 136 of the New York State General Municipal Law.
(5)
Any business required to be licensed as a junk dealer pursuant
to Article 6 of the New York State General Business Law.
(6)
Any business required to be licensed as a scrap processor pursuant
to Article 6-C of the New York State General Business Law.
B.
The following shall not be considered a junkyard and shall not
be regulated under this article:
(1)
Storage and/or warehousing of used motor vehicle parts in a
fully enclosed building(s) associated with a business engaged in selling
the same for use in motor vehicles and temporary indoor storage of
five or less inoperative motor vehicles only in conjunction with the
same.
(2)
The outdoor storage or deposit of one unregistered, old or secondhand
motor vehicle except as part of a legally licensed junkyard or legally
licensed car sales business.
LEAK-RESISTANT or LEAKPROOF
Designed and maintained to prevent the escape of contained
liquids or other materials when appropriately closed, regardless of
container orientation (i.e., upright, tipped over).
MERCURY-CONTAINING DEVICES
Any device or material into which elemental mercury or mercury
compounds are intentionally added during the manufacture of such devices
and in which the continued presence of mercury is required to provide
a specific characteristic, appearance or quality or to perform a specific
function. Such items include but are not limited to convenience lighting
switches, anti-lock brake assemblies and high-intensity discharge
headlamps.
PERSON
Any individual, association, partnership, corporation, limited-liability
company or other organization.
SURFACE WATER
Lakes, ponds, reservoirs, impoundments, streams, drainageways,
springs, rivers, creeks, marshes and other wetlands, canals and all
other bodies of water, natural or artificial.
No person shall operate, establish or maintain a junkyard, nor
shall any landowner permit, allow, tolerate or consent to the operation,
establishment or maintenance of a junkyard, without a license to operate
such junkyard pursuant to this article.
The applicant must obtain a certificate of zoning compliance
prior to making its application to the Town Board. The Code Enforcement
Officer shall review the applicant's proposed junkyard, including
the map(s) and narrative required by this article, for compliance
with the Zoning Code and, where in compliance with said Zoning Code, issue
the applicant a certificate of zoning compliance stating that the
proposed junkyard will comply in all respects with the requirements
of the Zoning Code. The certificate of zoning compliance does not
relieve the applicant of site plan review by the Planning Board as
applicable under Article VIII of the Zoning Code.
The Town Board shall conduct a public hearing within 62 days
from the date it determines the application is complete. Notice of
the hearing shall be made in a newspaper in general circulation in
the Town at least five days prior to the date of the hearing. Written
notice of the hearing shall be provided to the applicant at least
10 days prior to the date of the hearing.
At the time and place set for hearing, the Town Board shall
hear the applicant and all other persons wishing to be heard on the
application for a license to operate, establish or maintain the junkyard.
In considering such application, the Town Board shall take into account
the suitability of the applicant with reference to his ability to
comply with the following licensing standards, the regulations and
requirements of this article and other reasonable regulations concerning
the proposed junkyard, as well as any other matter within the purposes
of this article.
A. Ownership or control. The Town Board shall require the applicant
to provide proof of legal ownership or the right to use of the property
for a junkyard purpose during the license period.
B. Location. The Town Board shall take into account the nature and development
of surrounding property, such as the proximity of churches, schools,
hospitals, public buildings or other places of public gathering, and
whether or not the proposed location can be reasonably protected from
affecting the public health and safety by reason of offensive or unhealthy
odors, smoke, noise, dust or other pollution. The Town Board shall
also take into account the available site access to the proposed location,
whether the transportation infrastructure is sufficient to provide
ingress and egress to the proposed site, as well as accommodating
for the increase in scope and intensity of the traffic. No license
shall be issued without obtaining a certificate of zoning compliance
as provided for in this article.
C. Aesthetic. The Town Board shall also take into account the clean,
wholesome and attractive environment which has been declared to be
of vital importance to the continued general welfare of its citizens
by considering whether or not the proposed location can be reasonably
protected from having an unfavorable effect thereon. In this connection
the Town Board may consider collectively the type of road servicing
the junkyard or from which the junkyard may be seen, the natural or
artificial barriers protecting the junkyard from view, the proximity
of the proposed junkyard to established residential and recreational
areas or main access routes thereto, as well as the reasonable availability
of other suitable sites for the junkyard.
D. Compliance history. The Town Board may also consider the applicant's
history of compliance with any federal, state or local law or any
of the following: § 136 of the New York State General Municipal
Law, Article 6 or 6-C of the New York State General Business Law,
§ 415-a of the New York State Vehicle and Traffic Law, any
applicable provision of the New York State Environmental Conservation
Law, or any regulations promulgated pursuant to said laws.
The Town Board may grant a waiver from the dimensional (nonphysical)
requirements or regulations of this article and a variance from any
nondimensional regulation or requirement. The Town may grant such
a waiver or variance only if the following standards are met:
A. Waiver standard. In granting a waiver of a dimensional (nonphysical)
requirement or regulations of this article, the Town Board must consider
the benefit to the applicant if the waiver is granted, as weighed
against the detriment to the health, safety and welfare of the neighborhood
or community by such waiver. In making such determination, the Town
Board shall also consider: whether an undesirable change will be produced
in the character of the neighborhood or a detriment to nearby properties
will be created by the granting of the waiver; whether the benefit
sought by the applicant can be achieved by some method, feasible for
the applicant to pursue, other than a waiver; whether the requested
waiver is substantial; whether the proposed waiver will have an adverse
effect or impact on the physical or environmental conditions in the
neighborhood; and whether the alleged difficulty was self-created,
which consideration shall be relevant, but shall not necessarily preclude
the granting of the waiver.
B. Variance standard. The Town Board may grant a variance from a nondimensional
requirement or regulation of this article only upon determining that
such action would be in keeping with the intent and spirit of this
article and the best interests of the Town and that denying such request
would result in unnecessary hardship to the applicant. In order to
demonstrate unnecessary hardship, the applicant must demonstrate that:
the applicant cannot realize a reasonable return, provided that lack
of return is substantial as demonstrated by competent financial evidence;
that the alleged hardship relating to the property in question is
unique and does not apply to other licensed or unlicensed junkyards
in the Town; that the requested waiver or variance, if granted, will
not produce an adverse impact on the physical or environmental conditions
in the neighborhood of the junkyard or would not alter the essential
character of such neighborhood; and that the alleged hardship has
not been self-created.
C. Any waiver or variance authorized by the Town Board shall be made
by resolution containing the grounds for granting such relief. The
Town Board shall require such conditions as will, in its judgment,
secure substantially the objectives of the regulation or requirement
so waived or varied. Under no circumstances shall the Town Board vary
the limitations contained in the prohibition section of this article.
No junkyard shall be licensed to operate within 500 feet of
a church, school, hospital, nursing home, public park, public building
or other place of public gathering, measured from the property line
of such place.
Any person or persons, jointly or severally aggrieved by any
decision of the Town Board concerning such license application pursuant
to this article, or any officer, department, board or bureau of the
Town, may have the decision reviewed by the New York State Supreme
Court in the manner provided by Article 78 of the Civil Practice Law
and Rules, provided the proceeding is commenced within 30 days after
the filing of the decision in the office of the Town Clerk.