Article VIII Procedures

Initiation of application. A property owner, or its duly authorized agent, or other persons having a contractual interest shall make an application required under this chapter for the subject property.

Compliance required.

No application for site plan review, special permit and variances shall be considered where there are existing violations or delinquent real estate Town taxes assessed against the subject property, except where such application is intended to cure the violations. The Zoning/Code Enforcement Officer shall be responsible for accessing all records in order to make this determination.

[Amended 11-12-2013 by L.L. No. 2-2013]

Additionally, proof that all local, state and federal regulations and permits have been complied with or obtained shall be submitted as part of the application.

Simultaneous processing. Whenever two or more forms of review and approval are required under this chapter, applications for those development approvals may be processed simultaneously.

Application forms and application filing fees. Applications required under this article shall be submitted in a form and in such numbers as required by the Zoning/Code Enforcement Officer. Applications shall be accompanied by the fee amount that shall be established by the Town Board from time to time. Application fees are nonrefundable, unless otherwise expressly stated. The Zoning/Code Enforcement Officer shall have the authority to waive application requirements that are not applicable to a specific project.

Application completeness.

An application shall be submitted in the required form, including all mandatory information, all exhibits and accompanied by the applicable fee. A determination of application completeness shall be made within five business days by the Zoning/Code Enforcement Officer.

[Amended 11-12-2013 by L.L. No. 2-2013]

If an application is determined to be incomplete, the Zoning/Code Enforcement Officer shall provide written notice to the applicant along with an explanation of the application's deficiencies. No further processing of the application shall occur and no public hearings shall be scheduled until the deficiencies are corrected.

Upon certification that an application is complete, the Zoning/Code Enforcement Officer shall circulate the application to all relevant departments for their recommendations and, within 15 business days, refer the application to the appropriate authority. An application shall be considered complete following departmental review and transmittal to the appropriate authority.

Referral to Niagara County Planning Department.

Applications subject to General Municipal Law § 239-n shall be referred to the Niagara County Planning Board in accordance with the provisions of General Municipal Law § 239-n.

[Amended 11-12-2013 by L.L. No. 2-2013]

The County Planning Board shall have 30 days upon receipt of an application to approve, disapprove, or approve with modifications of the application.

If the County approves a referral, then the local board's decision is governed by majority vote.

If the County disapproves or approves subject to stated conditions or modifications, the local board may override the county's opinion only by a majority plus one vote.

The local board shall send a copy of its final decision and reasons for such decision on a County referral case to the County Planning Board within seven days after the local decision is reached.

Public hearing procedure.

Public hearings shall be required for the following:

Zoning Map or Zoning Text Amendments by Town Board;

Incentive Developments by the Town Board:

Special permit by the Zoning Board of Appeals;

Variances by the Zoning Board of Appeals.

Site plan approval applications.

[Added 9-8-2014 by L.L. No. 3-2014]

Setting hearing. For all matters properly brought before the Town Board, Planning Board or Zoning Board of Appeals for which a public hearing is required by this chapter, the body charged with conducting the hearing shall, upon receipt of a completed application, select a reasonable time and place for such hearing, provided, however, that such time shall be not later than 45 days following the receipt of the application, unless the applicant shall agree to some later time.

Notification.

[Amended 7-8-2019 by Ord. No. 4-2019]

Mailed notice.

The appropriate board secretary shall be required to mail the appropriate notices for public hearings to all property owners within 500 feet measured from property lines of the subject property both within and outside the Town boundaries and all involved agencies and officials.

Notice by mail shall be given not more than 20 nor less than 10 days before the hearing by regular United States mail, except that notice to Town agencies or officials may be by interdepartmental memorandum.

A written notice of any proposed change or amendment affecting property within 500 feet of the boundaries of a state park or parkway shall be given to the Niagara Frontier State Park Commission at least 10 days prior to the date of such public hearing.

A written notice of any proposed change or amendment affecting property within 500 feet of the boundaries of any city, village, town or county shall be given the Clerk of such municipality and to the Clerk of the County Legislature at least 10 days prior to the date of such hearing.

Published notice. A published notice shall be placed in an official newspaper or a newspaper of general circulation in the Town at least once, not more than 20 nor less than 10 days before the hearing.

Notice information. The notice of public hearing, both mailed and published, shall include:

The general location of land that is the subject of the application;

The legal description or street address;

The substance of the application, including the magnitude of proposed development and the current zoning district;

The time, date and location of the public hearing;

[5]

A phone number to contact the Town; and

[6]

A statement that interested parties may appear at the public hearing.

Compliance with New York State Environmental Quality Review Act (SEQRA). All agencies shall comply with the provisions of SEQRA under Article 8 of the Environmental Conservation Law and its implementing regulations.

Engineering and SEQRA cost recovery.

Any person who applies to the Town of Porter or its duly constituted Boards may be required to pay an engineering fee deposit.

No approval, permit, recommendation or review shall be processed until the required deposit is paid to the building department.

The amount of deposit shall be in accordance with the Fee Schedule of the Town of Porter.

Such deposit shall be in addition to all other fees required by law.

In addition to the engineering deposit and fee schedule, where the Town incurs additional engineering, administrative and legal costs pursuant to SEQRA, the Town shall recover the actual cost for preparing and reviewing all EIS or DEIS, including costs for scoping, when the Town is the lead agency and requires a DEIS or EIS.

The fee for residential projects shall not exceed 2% of the total cost, as estimated by the developer and verified by the Town. The total project cost shall be the cost of the land, plus the cost of all improvements required, not including the cost of buildings and structures.

(7)

The fee for nonresidential construction projects shall not exceed 0.5% of the total project cost. The total project cost shall be the cost of supplying utility service to the project, cost of site preparation, and the cost of labor and materials as determined with reference to a current construction cost data publication in common usage, such as building construction cost data by means. All costs shall include any legal expense, engineering and administrative costs according to contract that are incurred by the Town.

(8)

The fee paid hereunder shall be deposited in a trust account in the name of the Town of Porter.

(9)

Procedure upon completion.

Within 120 days of the final action by the Town or board(s) or the issuance of a certificate of occupancy, whichever is later, on an application for the improvement or SEQRA review, the Building Department shall report to the Town Board the actual cost to the Town for engineering.

The Town Board shall determine whether the Town costs exceed the total engineering fee charged. If the fee paid by the Town to its consulting engineers exceeds the fee paid by the applicant, the moneys deposited shall become the property of the Town of Porter.

In the event that the deposit paid by the developer is more than the actual amount paid by the Town to its consulting engineers or its attorney, then the excess shall be returned with interest, as provided above. SEQRA review fees shall be billed to the applicant and paid prior to approval.

(10)

In no event shall the Town charge against or utilize a fee paid hereunder for deficiencies in Town-owned improvements, routine maintenance or matters not directly related to the engineering cost for the specific improvement proposed.

Filing of approvals. The appropriate board secretary shall file all applicable restrictions and other conditions as approved by the Planning Board, Town Board or Zoning Board of Appeals. All covenants, deed restrictions, easements and similar restrictions to be recorded in connection with the approval shall provide that they may not be modified, removed or released without the express consent of the Town Board and shall provide that they may be enforced by the Town of Porter. All filing fees and expenses are the responsibility of the applicant.

§ 200-101 Building permits.

Purpose. The purpose of a building permit is to provide a record that a construction project is in compliance with this chapter, as well as any other applicable laws prior to commencement of the project.

Requirement. A building permit is required before the construction, alteration, or restoration of any building or structure may begin.

Reviewing authority. The Zoning/Code Enforcement Officer shall have the authority to issue a building permit in accordance with the provisions of this section.

Submission requirements.

A completed application form.

Survey plot plan/sealed drawing.

A survey plot plan, or if a survey plot plan is not available, or at the discretion of the Zoning/Code Enforcement Officer, a sealed drawing shall be submitted in conjunction with the application showing the following:

The actual shape, dimensions, radii, angles and area of the lot on which the building or structure is proposed to be erected or if an existing building, of the lot on which it is situated.

The location of the lot in relationship to the block on which it is on.

The exact size and locations on the lot of the proposed building or buildings or alteration of an existing building and of other existing buildings on the same lot.

The dimensions of all yards in relation to the subject building and the distances between such building and any other existing buildings on the same lot.

The existing and intended use of all buildings, existing or proposed, the use of land and the number of dwelling units, if any, the building is designed to accommodate.

(f)

In the case of accessory buildings, the Zoning/Code Enforcement Officer may waive any of the requirements in Subsection D(3)(a) through (c) above as they may deem to be unnecessary.

Proof of site plan approval (if applicable).

Proof of special use permit approval (if applicable).

Proof of variance approval (if applicable).

(7)

Any required application fees in accordance with the fee schedule.

Procedure. The Zoning/Code Enforcement Officer shall, within 30 days after the filing of a complete and properly prepared application with all required approvals, including site plan, special permit and/or variances, either issue or deny a building permit. If a permit is denied, the Zoning/Code Enforcement Officer shall state, in writing, to the applicant the reasons for such denial.

Expiration.

If any construction, alteration, enlargement or other work authorized under a building permit is not begun within six months from the date of its issuance, the building permit shall expire.

In the event that work being conducted pursuant to the building permit ceases for a period of six months, the building permit shall expire.

If any construction, alteration, enlargement or other work authorized under a building permit has begun but is not completed within two years from the date of its issuance, such building permit shall expire and no further work shall be undertaken until a new building permit has been obtained.

The Zoning/Code Enforcement Officer may extend the building permit for no more than two three-month periods upon a showing of good cause.

§ 200-102 Temporary use permit.

Purpose. The purpose of a temporary use permit is to provide a record of the temporary use, to ensure that the use is compliant with this chapter, and to determine that the temporary use will not cause an excessive traffic problem or will be detrimental to the neighborhood surrounding the temporary use.

Requirement. A temporary use permit is required for any temporary use of a lot or building that would not require a building permit.

Reviewing authority. The Zoning/Code Enforcement Officer shall have the authority to issue a temporary use permit in accordance with the provisions of this section.

Submission requirements.

A completed application form.

A plot or floor plan drawn to scale showing the manner in which the land or building is proposed to be used.

A plan describing the estimated traffic generation of the use, available parking, and measures that will be taken to control the traffic and parking. If parking will be provided on other lots, the applicant shall submit a statement of agreement from all property owners who will provide parking for the temporary use.

Any required application fees in accordance with the fee schedule.

Procedure. The Zoning/Code Enforcement Officer shall, within 30 days after the filing of a complete and properly prepared application with all required submissions, either issue or deny a temporary permit. If the permit is denied, the Zoning/Code Enforcement Officer shall state, in writing, to the applicant the reasons for such denial.

Expiration. A temporary use permit shall only be valid for the time period specified on the application. The temporary use permit may be revoked at any time if the Zoning/Code Enforcement Officer finds that any of the conditions of the permit have been violated.

§ 200-103 Certificate of occupancy.

Purpose. The purpose of a certificate of occupancy is to ensure that the provisions of this chapter as well as all other applicable codes have been adhered to following the completion of a construction project or change of use.

Requirement. The occupancy and use of a building erected, reconstructed, restored, altered, or moved or any change in use of an existing building shall be unlawful until a certificate of occupancy has been issued.

Reviewing authority. The Zoning/Code Enforcement Officer shall have the authority to issue a certificate of occupancy.

Submission requirements.

A completed application form.

Copies of all plans and permits required for the project.

Notification of completion.

Procedure.

The applicant shall be responsible for notifying the Zoning/Code Enforcement Officer that the construction on a building or the establishment of a new use has been completed.

Within 10 days following notification of completion, the Zoning/Code Enforcement Officer shall inspect the site to find that:[1]

The work has been carried out in accordance with all approved plans and permits required for such work.

The approved water and sewer hookups are functioning properly.

All building and safety codes have been adhered to.

All exposed dirt surfaces have been planted, sodded or seeded.

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

Following inspection and within the same ten-day period, the Zoning/Code Enforcement Officer shall do one of the following:

Issue a certificate of occupancy.

Inform the applicant of the work that needs to be done to achieve compliance.

A temporary certificate of occupancy for a part of a building may be issued by the Zoning/Code Enforcement Officer for a period of not more than six months, provided that such portion or portions as have been completed may be occupied safely without endangering life or the public welfare.

A temporary certificate of occupancy may be issued by the Zoning/Code Enforcement Officer for a period of not more than six months upon finding that planting, sodding, or seeding of exposed dirt surfaces was impractical due to seasonal weather conditions.

§ 200-104 Certificate of legal nonconformity.

The applicant may request that a site be inspected at any time during construction in an attempt to minimize the cost associated with necessary project adjustments.

Expiration. A certificate of occupancy shall be valid until another certificate of occupancy is required for a given building or site.

Purpose. The purpose of a certificate of legal nonconformity is to provide a record of the character and extent of a nonconformity existing as of the effective date of this chapter.

Requirement. All nonconforming uses, structures, or lots of record shall obtain a certificate of legal nonconformity before a building permit may be obtained for the subject lot.

Reviewing authority. The Zoning/Code Enforcement Officer shall have the authority to issue a certificate of legal nonconformity.

Submission requirements.

A completed application form.

Procedure. The Zoning/Code Enforcement Officer shall issue a certificate of legal nonconformity within 10 days after receiving a completed and valid application.

Expiration.

A certificate of legal nonconformity for a nonconforming use shall be valid until the termination of the use.

A certificate of legal nonconformity for a nonconforming structure shall be valid until the demolition of the structure or until the structure is enlarged, repaired or altered in such a way as to add to the existing nonconformity or to increase the degree of existing nonconformity.[1]

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

A certificate of legal nonconformity for a nonconforming lot of record shall be valid indefinitely or until the lot is merged with another lot for a single development.

§ 200-105 Change of use permit.

Purpose. The purpose of a change of use permit is to provide an easier permitting process for a change of use when no exterior alterations are necessary for such conversion. A change of use permit shall only be granted to those uses which are permitted within the given zoning district.

Requirement. A change of use permit is required for any use which is different from the previous use, provided that such use:

Is permitted with site plan review within the given district;

Will not alter the exterior of the building;

Meets all requirement of this chapter.

Reviewing authority. The Zoning/Code Enforcement Officer shall have the authority to issue a change of use permit.

Submission requirements.

A completed application form.

Procedure. The Zoning/Code Enforcement Officer shall review the application for a change of use permit and determine if such use meets all other requirements of this chapter.

If such use meets all the requirements of this chapter, the Zoning/Code Enforcement Officer shall issue a change of use permit within 15 days.

If the Zoning/Code Enforcement Officer finds that such use does not conform to all provisions of this chapter, the Zoning/Code Enforcement Officer shall, within 15 days, deny the applicant a change of use permit. In the event that a change of use permit is denied, the applicant may still submit his/her plan through the site plan review process.

Expiration. A change of use permit shall be valid until a certificate of occupancy is granted, at which point such a use becomes the existing use.

§ 200-106 Site plan review.

[Amended 1-9-2012 by L.L. No. 1-2012]

Purpose. The purpose of site plan review is to provide a mechanism for a detailed review of development proposals to ensure that they are consistent with this chapter and the comprehensive plan, will not adversely affect the neighborhood, and promote the safety and general welfare of the community.

Requirement. All new developments for a use which are required by this chapter in the district in which it is located to obtain site plan approval or a special use permit shall obtain site plan approval before a building permit or special use permit may be issued.

Reviewing authority. The Planning Board shall be responsible for approving site plans if all specifications contained in this chapter are met. If there are minor variations to any of the specifications, the Planning Board may still approve a site plan.

Optional presubmission consultation. The owner or owners of land to be developed in any district may consult with the Planning Board, the Zoning/Code Enforcement Officer, or any other public officials prior to the preparation of the site plan. Requirements for site plan approval and the relationship of the application to the Comprehensive Plan should be determined in advance of the preparation of the site plan.

Submission requirements.

A completed application form.

A statement indicating the financial capability of the applicant to carry out the proposed development.

A completed Environmental Assessment Form (EAF).

Ten copies of a plat accurately drawn to a scale of not less than one inch equals 50 feet certified by a registered/licensed engineer, architect, landscape architect or surveyor as appropriate, as to existing features, design features and boundaries. The plat shall include or be accompanied by the following information:

Date of preparation. All revisions shall be noted and dated.

A location map showing the location of the tract with reference to the surrounding properties, existing streets and streams within 1,000 feet of the property lines of the proposed development.

Name of the development, North arrow, graphic scale, parcel number, the name and address of the record owner, the name and address of the applicant, the name, address, license number, and seal and signature of the person preparing the survey. If the owner of the premises is a corporation, the name and business address of the president and secretary shall be submitted on the application.

All distances shall be in feet and 0.01 of a foot and all bearings shall be given to the nearest 10 seconds.

The zoning classification of properties within 200 feet of the boundaries of the property for which the application is made shall be illustrated on a map.

(f)

A boundary and topographical survey by a surveyor of the total proposed development. If the developer intends to develop a tract of land in phases, the plat shall include the total tract.

(g)

A copy of any existing or proposed covenants, deed restrictions, which are applicable to the property.

(h)

The distance, measured along the right-of-way lines of existing streets abutting the property, to the nearest intersections with other public streets within 200 feet of the site boundaries.

(i)

The location and dimensions of proposed buildings and structures, all accessory structures, signs and fences, if any, including front, side and rear yard setbacks, height of buildings, first floor elevations of all structures and floor plans of buildings.

(j)

Location of existing buildings and all other structures, including walls, fences, culverts and bridges, with spot elevations of such buildings and structures. Structures to be removed shall be indicated by dashed lines. Structures to remain shall be indicated by solid lines.

(k)

If any proposed construction or development is located within or adjacent to any identified flood-prone area, the following information shall be submitted:

A plan which accurately delineates the area which is subject to flooding, the location of the proposed construction, the location of any other flood-prone development or structures, and the location of any existing or proposed stream improvements or protective works, information concerning the one-hundred-year flood elevations, descriptions of uplift forces, associated with the one-hundred-year flood, size of structures, location and elevations of streets, water supply and sanitary sewage facilities, soil types and floodproofing measures.

A document certified by a registered professional engineer or architect that the proposed construction has been adequately designed to protect against flood damage. Such statement shall include a description of the type and extent of floodproofing measures that have been incorporated into the design of the structure.[1]

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

(l)

Existing and proposed contours, referred to as United States Coast and Geodetic Survey datum, now known as North American Vertical Datum of 1988 (NAVD 88), with a contour interval of two feet for slopes of less than 20% and an interval of five feet for slopes of 20% or more. Regardless of slope, contours within areas of disturbance shall be plotted at two-foot intervals. Dashed lines shall be used to indicate existing contours and solid lines shall be used to indicate proposed contours.[2]

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

(m)

Location of existing rock outcrops, high points, watercourses, depressions, ponds, marshes, wooded areas and other significant existing features, including previous flood elevations of watercourses, ponds and marsh areas as determined by survey.

(n)

Identification of any wetlands on the site and the regulatory agency approved design techniques proposed to accommodate them.

(o)

Any and all existing streets related to the proposed development; including the names, widths, approximate gradients and sidewalk widths.

(p)

If any new streets are proposed, profiles, indicating grading; cross-sections showing the width and design of roadways and sidewalks.

(q)

Acreage, to the nearest hundredth of an acre of the site to be developed for nonresidential purposes and/or the area, in square feet, of each lot to be developed for residential purposes.

(r)

Plans of proposed stormwater systems showing feasible connections to existing or any proposed utility systems. Pipe sizes, grades and direction of flow, locations and inlets, manholes or other appurtenances and appropriate invert and other elevations shall be indicated. All stormwater facility plans shall be accompanied by a separate sketch showing all existing drainage within 500 feet of any boundary, and all areas and any other surface area contributing to the calculations, and showing methods used in the drainage calculations.

(s)

The location and size of all existing and proposed sanitary sewers.

(t)

The location and size of all existing and proposed waterlines, valves and hydrants.

(u)

The location, width and purpose of all existing and proposed easements and rights-of-way.

(v)

The location, type and approximate size of existing utilities to serve the development.

(w)

Tree masses and all individual trees having a caliper of four inches or greater.

(x)

A soil erosion and sedimentation control plan prepared by a licensed engineer or registered landscape architect.

(y)

The number and density of dwelling units (if residential).

(z)

All means of vehicular access for ingress and egress to and from the site onto public streets, showing the size and location of internal streets or driveways and curb cuts, including the organization of traffic channels, acceleration and deceleration lanes, additional width and any other improvements on the site or along the site's street frontage necessary to prevent a difficult traffic situation. All pedestrian walkways and provisions for handicapped facilities in compliance with the requirements of the Americans with Disabilities Act (ADA) for an accessible site shall also be shown. In addition, the development plan shall show the existing road system, located outside the development within 200 feet of the development or the next nearest intersection.

(aa)

Computation of the number of parking spaces to be provided, the location and design of off-street parking areas and loading areas showing size and location of bays, aisles and barriers and the proposed direction of movement.

(bb)

Proposed screening and landscaping plan prepared by a registered landscape architect.

(cc)

The placement and screening of solid waste disposal and storage facilities.

(dd)

If applicable, a detailed proposal, including covenants, agreements, or other specific documents showing the ownership and method of assuring perpetual maintenance to be applied to those areas which are to be used for private streets, sewers, recreational or other common purposes.

(ee)

If the plan is to be completed in phases, the proposed sequence of development with projected time schedule for completion of each of the several phases.

(ff)

The Zoning/Code Enforcement Officer, in consultation with the Planning Board, may waive any of the above submittal requirements if he/she finds them to be irrelevant to the proposed project.

Any required application fees in accordance with the fee schedule.

The Planning Board may waive any submission requirements which it deems unnecessary or unduly burdensome taking into consideration the complexity, size and scope of the request for site plan approval.

Procedure.

Upon certification that the site plan application is complete, the Zoning/Code Enforcement Officer shall circulate the application to all relevant departments for their recommendations and, within 30 business days, refer the site plan to the Planning Board.

The Planning Board, upon receipt of a site plan from the Zoning/Code Enforcement Officer, shall review the application at the next scheduled Planning Board meeting at which the application can be placed on the agenda. The Planning Board will review the application with the Zoning/Code Enforcement Officer and any other persons deemed relevant by the Planning Board to determine the completeness of the application. Once deemed complete, a public hearing will be scheduled in accordance with § 200-100 of this chapter.

[Amended 9-8-2014 by L.L. No. 3-2014]

At the public hearing, all persons interested in the application will be heard. Following the public hearing, the Planning Board shall make a determination on the application within 30 days to approve, disapprove, or approve with modification. The time period may be extended by mutual agreement of the Planning Board and the applicant. If the proposed development is determined to require further environmental review pursuant to Article 8 of the Environmental Conservation Law and 6 NYCRR 617, the time period for approval may be extended until such review is completed.

[Amended 9-8-2014 by L.L. No. 3-2014]

If a permit is denied, the Planning Board shall state, in writing, to the applicant the reasons for such denial.

If the site plan is approved with modification, such modifications shall be stated in writing and considered as a condition for approval.

(Reserved)[3]

Editor's Note: Former Subsection F(4), concerning determination on the application, was repealed 9-8-2014 by L.L. No. 3-2014. See now Subsection F(3).

Within five business days following such decision, the Planning Board Secretary shall mail notice of such decision to all persons entitled to such notice and file such decision with the Town Clerk, where it shall be public record.

Expiration.

The approval of a site plan for a building permit shall be valid for a period of two years from the date of the approval for purposes of obtaining a building permit. Failure to obtain a building permit within the time period shall cause the approval to become null and void. Upon application, for good cause shown, the Planning Board may extend the validity of the approval two times for a period of six months each time, not to exceed an additional period of one year.

The approval of a site plan for a special permit application shall be valid for a period of 90 days for the purpose of applying to the Zoning Board of Appeals for special permit approval. Upon application, for good cause shown, the Planning Board may extend the validity of the approval two times for a period of 30 days each time, not to exceed an additional period of 60 days.

Site plan flow chart.

§ 200-107 Special use permit.

[Amended 1-9-2012 by L.L. No. 1-2012]

Purpose. The Town of Porter allows a variety of uses of land, provided that such uses do not adversely affect neighboring properties, the natural environment or the character of the Town and its neighborhoods. Many of the uses listed in this chapter are, therefore, permitted only upon issuance of a special use permit by the Zoning Board in order to ensure that these uses are appropriate to their surroundings and satisfy performance criteria. Accessory uses or structures used in connection with a special use permit use shall be subject to the same special use permit approval requirements as the principal structure or use. Special use permits are to be necessary for those uses which, though intended to be allowed when certain criteria are met, are not allowed as a matter of right. It is the intent of this article to determine whether such uses are compatible, desirable and allowable on a case-by-case basis. Special use permits are only allowed where the Zoning Board makes findings that they meet the criteria of this section. The burden of establishing that the criteria set forth in this article have been met shall in all cases be on the applicant.

Requirement. All new developments for a use or a change of use which are required by this chapter in the district in which it is located to obtain a special use permit shall obtain a special use permit before a building permit.

Reviewing authority. The Zoning Board shall have the authority to issue a special use permit.

Submission requirements.

A completed application form.

Completion of site plan approval and receipt of Planning Board Recommendation.

Procedure.

A special use permit shall only be issued after the completion of a site plan review by the Planning Board pursuant to § 200-106 of this chapter with a recommendation of approval or denial communicated to the Zoning Board of Appeals within 15 days of the completion of the site plan approval process. Upon receipt of the required submissions, the Zoning Board of Appeals shall conduct a public hearing as described in § 200-100 of this chapter. Following the public hearing, the Zoning Board of Appeals shall make a determination on the application within 60 days to approve, disapprove, or approve with modification. The time period may be extended by mutual agreement of the Zoning Board of Appeals and the applicant.

If the proposed development is determined to require further environmental review pursuant to Article 8 of the Environmental Conservation Law and 6 NYCRR 617, the time period for approval may be extended until such review is completed.

Findings.

In granting or denying special use permits, the Zoning Board of Appeals shall take into consideration the purposes of this article, the scale of the proposed project, the possible impact of the proposed project on the nearby properties and neighborhoods, architectural aesthetics of the area and measures that will mitigate potential adverse impacts and preserve or enhance the character of the Town and the welfare of its citizens. The Zoning Board of Appeals shall not grant a special use permit unless and until it shall make the following findings as to whether the proposed special use:

Will be in compliance with all provisions and requirements of this and other local laws and regulations and will be in harmony with the purposes of the land use district in which it is located and with the general intent and purposes of this article.

Will not be detrimental to adjacent uses.

Will not cause undue traffic congestion, unduly impair pedestrian safety or overload existing roads considering their current width, surfacing and condition and will have appropriate parking and be accessible to fire, police and other emergency vehicles.

Will not overload any public water, drainage or sewer system or any other municipal facility or degrade any natural resource or ecosystem.

Will be suitable for the property on which it is proposed, considering the property's size, location, topography, vegetation, soils, natural habitat and hydrology.

(f)

Will not adversely affect the aesthetics of the premises and adjacent properties and the neighborhoods.

The Board shall further find whether the adverse impacts of the proposed special use can be mitigated to such an extent that the special use permit should be granted and if so, what conditions need be required to achieve such mitigation.

Expiration.

As a condition in granting a special use permit, the Zoning Board of Appeals may require that the special use permit be renewed at regular intervals. Regular intervals for special permit renewal shall not be less than two years.

The special use permit may be revoked at any time if the Zoning/Code Enforcement Officer finds that any of the conditions of the permit have been violated.

§ 200-108 Variance.

Purpose. The variance procedure is intended to provide a means by which relief may be granted only when no other applicable remedy, pursuant to other provisions of this chapter, is available.

Requirement. A request for variances may be filed where it is alleged that the provisions of the zoning ordinance inflict unnecessary hardship upon the applicant.

Reviewing authority. The Zoning Board of Appeals shall have the authority to grant use or area variances.

Submission requirements.

A completed application form. The application shall refer to the specified provision of the chapter involved shall precisely state the following:

The interpretation that is claimed.

The details of the variance that is being applied for and the grounds on which it is claimed.

The use or change in requirement for which the exception is sought.

Building and site plans. Where applicable, and in all instances where required herein, the application for a variance shall be accompanied by building plans and site plans as pursuant to § 200-106.

Procedure.

A public hearing shall be scheduled in accordance with § 200-100 of this chapter.

The parties to the hearing shall be the Town, any person affected by the application who has made timely appearance of record before the board, and any other person including civic or community organizations permitted to appear by the board. The Board shall have power to require that all persons who wish to be considered parties enter appearances in writing on forms provided by the board for that purpose.

The chairman or acting chairman of the Board shall have power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant documents and papers, including witnesses and documents requested by the parties.

The parties shall have the right to be represented by counsel and shall be afforded the opportunity to respond and present evidence and argument and cross-examine adverse witnesses on all relevant issues.

Formal rules of evidence shall not apply, but irrelevant, immaterial, or unduly repetitious evidence may be excluded.

The Board shall keep a stenographic record of the proceedings.

(7)

Within 60 days following the close of the public hearing, the Zoning Board of Appeals shall render its decision, approving or disapproving the variance failure to act within 60 days shall be considered a denial of the variance.

(8)

Within five business days following such decision, the Zoning Board Secretary shall mail notice of such decision to all persons entitled to such notice and file such decision with Town Clerk, where it shall be public record.

Variance standards.

Use variance.

No such use variance shall be granted by a board of appeals without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship. In order to prove such unnecessary hardship, the applicant shall demonstrate to the board of appeals that for each and every permitted use under the zoning regulations for the particular district where the property is located.

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 a substantial portion of the district or neighborhood;

That the requested use variance, if granted, will not alter the essential character of the neighborhood; and

That the alleged hardship has not been self-created.

The Board of Appeals, in the granting of use variances, shall grant the minimum variance that it shall deem necessary and adequate to address the unnecessary hardship proven by the applicant, and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.

Area variance.

In making its determination, the Zoning Board of Appeals shall take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant. In making such determination the 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 area variance;

Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;

Whether the requested area variance is substantial;

Whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and

[5]

Whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the Board of Appeals, but shall not necessarily preclude the granting of the area variance.

The Board of Appeals, in the granting of area variances, shall grant the minimum variance that it shall deem necessary and adequate and at the same time preserve and protect the character of the neighborhood and the health, safety and welfare of the community.

Conditions on variances. The Board of Appeals shall, in the granting of both use variances and area variances, have the authority to impose such reasonable conditions and restrictions as are directly related to, and incidental to the proposed use of the property. Such conditions shall be consistent with the spirit and intent of the zoning ordinance or local law, and shall be imposed for the purpose of minimizing any adverse impact such variance may have on the neighborhood or community.

Effect of variance approval. The approval of a variance shall not authorize the establishment or expansion of any use nor the development, construction, reconstruction, alteration or moving of any building or structure. A variance approval shall merely authorize the preparation, filing, and processing of applications for any permits and approvals which may be required by the codes and ordinances of the Town.

Expiration.

A variance shall expire if the applicant fails to obtain a building permit or a use or occupancy permit within one year from the date of authorization.[1]

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).

A use variance shall remain in effect until there is a change of use on the subject property, or the property is transferred to another owner.

§ 200-109 Zoning text and map amendments (rezoning).

An area variance shall remain in effect until the structure requiring a variance is demolished or altered in such a way to be compliant with this chapter.

Purpose. The amendment process herein established is intended to provide a means for making changes in the text of this chapter and in the Zoning District Map that have more or less general significance or application. It is not intended to relieve particular hardships nor to confer special privileges or rights but is intended as a tool to adjust the provisions of this chapter and the Zoning Map in light of changing, newly discovered or newly important conditions, situations or knowledge.

Authority. This chapter and the Zoning District Map may be amended from time to time by law enacted by the Town Board; provided, however, that no such amendment shall be enacted except in accordance with the procedures set out in this section.

Procedure.

Proposal by the Town. Amendments may be proposed by either the Supervisor, Town Board, the Planning Board or the Zoning Board of Appeals by transmitting such proposal, together with such supporting materials as may seem appropriate, to the Zoning/Code Enforcement Officer for processing in accordance with the provisions of this section.

Application by petition.

When any proposed amendment is initiated by an owner of, or other person having a contractual interest in, real estate to be affected by the proposed amendment, or by the owners of 50% or more of the frontage of real estate to be affected by the proposed amendment, the application for such amendment, addressed to the Town Board, shall be filed with the Zoning/Code Enforcement Officer. The Zoning/Code Enforcement Officer may also request such other and further information and documentation deemed necessary or appropriate to a full and proper consideration and disposition of the particular application.

When a proposed amendment or change is initiated by petition, the expenses of advertising notice of public hearing or such proposal shall be paid by the petitioner.

Action by Planning Board.

A proposal for a zoning change or text amendment shall be transmitted to the Planning Board for their recommendation to the Town Board.

Within 60 days following the receipt of the application, the Planning Board shall transmit their recommendation to the Town Board.

In making recommendations regarding amendments to the text of the Zoning Law or to the Official Zoning Map, the Planning Board shall consider and make findings on the following matters regarding the proposed amendment:

Consistency with the Town's Comprehensive Plan.

Compatibility with the present zoning and conforming uses of nearby property and with the character of the neighborhood

Suitability of uses proposed by the zoning amendment for the property affected by the amendment.

Availability of public services and infrastructure generally suitable and adequate for uses allowed within the proposed district.

Public hearing. A public hearing shall be set, advertised and conducted by the Town Board in accordance with § 200-100 of this chapter.

Action by Town Board.

Within 60 days following the public hearing, the Town Board shall either refuse the application or adopt the proposed amendment, with or without modifications.

Within five business days of such action, the Town Clerk shall mail notice of the decision to all entitled parties.

Petition of protest. In case of a protest against such change signed by the owner(s) of 20% or more either of the area of land included in such proposed change or of that immediately adjacent extending 100 feet therefrom or that directly opposite thereto extending 100 feet from the street frontage of such opposite land, such amendment shall not become effective except by the favorable vote of at least four Town Board members.

Resubmission of petition.

The Town Board shall not review any applications for the same changes affecting the same property or any portion thereof until the expiration of one year from the date of such previous denial.

The Town Board may allow resubmission of such petition within said one-year period if it determines that, since the date of action on the prior petition:

There has been a significant change in the zoning district classification of an adjacent piece of property;

The Town Board has adopted a plan that changes public policy regarding how the property affected by the amendment should be developed;

Construction or expansion of a road, waterline, sewer line or other such facilities has occurred to serve the property and can comfortably accommodate the intensity of development allowed under the proposed classification; or

There has been some other extraordinary change in conditions or circumstances, outside the control of the petitioner, which justifies waiver of the one-year restriction on a new petition; this, however, shall not include a change in the ownership of the subject property;

It has been determined by the Town Board that the petitioner has satisfactorily complied with all suggestions by the Town Board regarding the prior submission.

Expiration. Once a text amendment or Zoning Map change is adopted, only another resolution by the Town Board can reverse or alter the amendment.

Zoning change flow chart.

§ 200-110 Incentive developments.

Purpose. To provide a mechanism for developers who offer concessions which accomplish goals of the Comprehensive Plan in exchange for an increase in density or permitted use. Since a development receiving an incentive may have negative impacts on transportation systems and other Town services, the review process needs to examine the benefits against the impacts in a public forum.

Requirement. Any development proposing to receive an incentive in exchange for an amenity must first be granted approval before undergoing site plan review or any other permitting process.

Reviewing authority. The Town Board shall be responsible for approving incentives.

Submission requirements. An application for incentives shall include the following:

A description of the proposed amenities.

The cash value of the proposed amenities.

A narrative which describes:

The benefits to the community and how the amenity furthers the goals of the Town and the Comprehensive Plan.

Preliminary indication that there are adequate sewer, water, transportation, waste disposal, and fire protection facilities to handle the proposed incentive or how such facilities will be provided.

The requested incentive.

A sketch plan or the proposed development.

Procedure.

The Town Board shall refer the application to the Planning Board for its review and comment within 30 days.

The Planning Board may review the proposal for up to 60 days and may forward the proposal to any Agency it deems appropriate for their comments.

After receiving comments from the Planning Board, the Town Board shall schedule and hold a public hearing in accordance with § 200-100 of this chapter.

All applicable requirements of SEQR shall be complied with as part of the review and hearing process.

Following review and public hearing, the Town Board shall, within 30 days, do one of the following:

Deny the application for incentive on the grounds that the public benefit does not exceed the expected impacts of the proposal or that there are insufficient facilities to handle the increased density.

Approve the application for incentive in exchange for the proposed amenity.