A.
Zoning Board of Appeals established, membership. There is hereby
established a Zoning Board of Appeals pursuant to the New York State
Town Law. Said Board of Appeals shall consist of five members, including
a Chairperson appointed by the Town Board. Appointments shall be in
accordance with the New York State Town Law, and an appointment to
a vacancy occurring prior to the expiration of a term shall be for
the remainder of the unexpired term. In the absence of a Town Board
appointment of a Chairperson or in the absence of the Board member
so appointed, the Board of Appeals may designate a member to serve
as Acting Chairperson. The Town Board may also provide for compensation
to be paid to experts, clerks and a secretary and provide for such
other expenses as may be necessary and proper in connection with the
operation of the Board of Appeals. In making such appointments, the
Town Board may further require Board of Appeals members to complete
training and continuing education courses.
B.
Alternate members. The Town Board hereby elects to supersede the
New York State Town Law and to provide, pursuant to the New York State
Municipal Home Rule Law, for the appointment of one alternate member
of the Board of Appeals to serve for a term of one year or until a
successor is appointed. Such alternate member shall attend meetings
and shall act in the capacity of a full member whenever regular members
are absent or must recuse themselves due to conflicts of interest.
The Board of Appeals shall have the powers and duties authorized
by the New York State Town Law and shall have the following specific
powers and duties, provided that none of the following provisions
shall be deemed to limit any power of the Board of Appeals that is
conferred by law:
A.
The Board of Appeals may reverse or affirm, wholly or in part, or
may modify the order, requirement, decision, interpretation or determination
appealed from and shall make such order, requirement, decision, interpretation
or determination as in its opinion ought to have been made in the
matter by the administrative official or body charged with the enforcement
of this chapter, and to that end shall have all the powers of the
administrative official or body from whose order, requirement, decision,
interpretation or determination the appeal is taken.
B.
The Board of Appeals shall have the power, upon an appeal from a
decision or determination of the administrative official or body charged
with the enforcement of this chapter, after public notice and hearing
and in accordance with the requirements of law and this chapter, to
grant area variances as defined herein.
C.
The Board of Appeals shall have the power, upon an appeal from a
decision or determination of the administrative official or body charged
with the enforcement of this chapter, after public notice and hearing
and in accordance with the requirements of law and this chapter, to
grant use variances as defined herein.
D.
The Board of Appeals shall, upon request from or appeal of a decision
by the Code Enforcement Officer or any administrative body of the
Town of Lumberland, including the Town Board, decide any question
involving the interpretation of any provision of this chapter, including
determination of the exact location of any district boundary if there
is uncertainty with respect thereto.
A.
Appeals and applications for variance and interpretation. The Board
of Appeals shall act in accordance with the procedure specified by
law and by this chapter. The Board of Appeals may establish its procedures
and requirements, within the framework provided by law and this chapter,
for conducting its business. All appeal, variance and interpretation
applications made to the Board of Appeals shall be in writing on forms
prescribed by the Board or provided for herein. Every application
shall refer to the specific provision of the chapter involved and
shall exactly set forth the interpretation that is claimed, the use
which is involved or sought, and (if applicable) the details and type
of the variance that is applied for and the grounds on which it is
claimed that the variance should be granted, as the case may be. Every
decision of the Board of Appeals shall be by resolution, each of which
shall contain a full record of the findings of the Board in the particular
case.
B.
Required copies and fees. Ten copies of any appeal or variance or
interpretation application and supporting documentation shall be filed
with the Code Enforcement Officer, accompanied by a fee in the amount
set from time to time by resolution of the Town Board.
C.
Content of appeal or application. Each appeal or application shall
fully set forth the circumstances of the case and contain the following
information and documentation:
(1)
The name, address and telephone number of the property owner and,
if different, the name, address and telephone number of the applicant(s).
(2)
Address, tax identification number for the property, existing use,
acreage of parcel, and zoning district(s) designation.
(3)
A narrative description of the proposed development project, with
reference to the applicable use and other regulations of this chapter.
(4)
A copy of the recorded deed must be furnished evidencing ownership
of the property, together with copies of any leases, development agreements
or other agreements between the property owner and the applicant(s).
(5)
A list of all federal, state and other permits and other governmental
approvals that would be required to implement the development project,
and evidence of whether the applicant (or its agents) have applied
for any such permits and approvals and whether the applicant (or its
agents) have received any of the listed approvals.
(6)
Copies of any environmental assessments or permit applications and
supporting materials submitted to any other permitting agency in connection
with the development project.
(8)
Signature of the applicant, or the owner and the applicant if the
applicant is not the owner, attesting to the accuracy of the statements
and representations made in the application and constituting a certification
by the owner, or owner and applicant (as applicable), that each has
undertaken due diligence with respect to the matters asserted in the
appeal or application.
D.
Public hearings. The Board of Appeals shall fix a time for any required
public hearings, give public notice thereof and issue decisions in
accordance with the provisions of law. The applicant shall bear the
cost of advertising and required public notice for public hearings.
The Board of Appeals shall comply with SEQRA. Without limiting the
generality of the foregoing, the Board of Appeals shall hold a public
hearing to consider each appeal and application for a variance or
interpretation (as applicable) prior to rendering any decision on
an application or appeal. This public hearing may begin concurrently
with any required public hearing for the purpose of environmental
review of the same development project and may continue after any
such environmental review public hearing is closed. The public hearing
shall be advertised in the official newspaper of the Town at least
five business days before the date of the hearing, and the applicant
and adjoining property owners shall be notified by mail at least 10
business days before the date of the hearing.
E.
Appearances. On hearing of an application or appeal, a party may
either appear in person or by a representative who need not be an
attorney. If the party is to be represented by a person who is not
an attorney, a notarized affidavit of appointment of a representative
for the party must be presented to the Board of Appeals prior to the
hearing. The applicant or applicant's legal representative must attend
the public hearing and describe the appeal to the Board of Appeals.
The Board of Appeals may not hold a hearing on an application unless
the applicant or his/her representative is present.
F.
Conduct of proceedings. The Board of Appeals shall be primarily concerned
with facts and not with technicalities and shall decide the matters
before it fairly and equitably having regard to the welfare of the
community as a whole and to the rights of the applicant and neighbors.
The Board of Appeals shall make its findings and determinations based
upon substantial evidence contained in the record of its proceedings.
It shall be the responsibility of the applicant to present evidence
in the form of testimony, exhibits, documents, models, plans and the
like to support the application for approval of a variance or a favorable
decision upon an appeal.
G.
Referrals. The Board of Appeals may refer applications for variances
and appeals for review by the Fire Department, the Department of Public
Works, and any other Town officials or non-Town consultants deemed
appropriate by the Board of Appeals. These may include, but shall
not be limited to, local and county officials and representatives
of county, state and federal agencies, including the Upper Delaware
Council, the Sullivan County Soil and Water District, the State Department
of Transportation, and the State Department of Environmental Conservation.
Any comments from these reviewers shall be forwarded to the Board
to aid its decision on the application or appeal. Additional consultation
where fees are involved shall require approval by the Town Board,
and any such fees shall be borne by the applicant.
H.
Inspection. The Board of Appeals may defer decision on any matter
for the purpose of an appropriate inspection by the Board of Appeals
or any other agency that the Board deems to be an interested agency
or to hear witnesses or procure the submission of pertinent records.
An appeal or application on which determination by the Board is to
be deferred shall become the first order of business at the next public
meeting of the Board.
I.
Imposition of conditions.
(1)
In granting a variance or in making any determination upon which
it is required to pass after public hearing under this chapter, the
Board of Appeals shall have the authority to impose such reasonable
conditions and restrictions as are directly related to and incidental
to the proposed development project and as are, in the opinion of
the Board, required to promote the intent and purposes of the Comprehensive
Plan of the Town and this chapter. Such conditions shall be based
on competent credible evidence on the record, be incorporated into
the decision, and may include, without limitation, provisions for:
(a)
Minimizing adverse impact of the development upon other land;
(b)
Ensuring that the type, intensity, design, location, character
and performance of activities shall be in harmony with the orderly
development of the Town;
(c)
Controlling the sequence of development, including when it must
be commenced and completed;
(d)
Controlling the duration of use or development and the time
within which any temporary structure must be removed;
(e)
Assuring satisfactory installation and maintenance of required
public improvements;
(f)
Designating the exact location and nature of development;
(g)
Establishing detailed records by submission of drawings, maps,
plats or specifications;
(h)
Ensuring all proposed structures, equipment and materials shall
be readily accessible for fire and police and other emergency responder
protection; and
(i)
Ensuring that the nature and intensity of operations involved
in or conducted in connection with the proposed use, its site layout
and its relation to access streets be such that both pedestrian and
vehicular traffic to and from the use and assembly of persons in connection
therewith will not be hazardous or inconvenient to or incongruous
with the Town or conflict with the normal traffic of the Town.
(2)
If the applicant refuses to accept such requirements and conditions,
the variance or permit shall be denied. Failure to abide by any conditions
attached to a permit or a variance shall be a violation of this chapter.
J.
Conduct of Board of Appeals. Board of Appeals' action on applications
and appeals shall additionally be subject to the following:
(2)
Every decision of the Board shall fully set forth in a statement
the circumstances of the case and shall contain a full record of the
findings on which the decision is based. The decision shall be mailed
to the applicant. Every decision shall be filed in the office of the
Town Clerk within five business days after completion, and additionally
copies shall be submitted to the Town Board, the Planning Board, and
the Code Enforcement Officer.
(3)
The Board of Appeals' statement may include recommendations of desirable
modifications to be incorporated in a revised proposal, and conformance
with specified modifications shall be considered a condition of any
subsequent approval incorporating the same. In such a case, the Board
may recommend to the applicant that it revise or redesign its application
and resubmit the same after it has been revised or redesigned. The
Board of Appeals may grant to the applicant a continuance of the review
process and/or adjourn the conclusion of the public hearing. However,
if more than 180 days has elapsed since the time of the Board's decision,
the Board shall require a resubmission of the application.
(4)
Upon any approval by the Board of the final proposal and payment
by the applicant of all fees and reimbursable costs due to the Town,
the Board of Appeals shall endorse its approval by signature or stamp
on a copy of the application and shall forward it to the Code Enforcement
Officer.
(5)
Upon disapproval of an application for use variance or area variance,
the Board of Appeals shall so inform the Code Enforcement Officer,
and the Code Enforcement Officer shall not issue a zoning or building
permit or certificate of occupancy to the applicant.
A.
Requirements for appeal. Every appeal application shall contain such
information as the Board of Appeals requires and shall refer to the
specific provision of the chapter involved and shall exactly set forth
the interpretation that is claimed. Appeals may be taken only within
the time period allowed by law.
B.
Additional required submissions for appeal. All appeals made to the Board of Appeals shall contain, in addition to the information required by § 250-60C above and by any other provision of this chapter, the following additional information:
(1)
Copy of the permit application, any materials submitted with the
application, and a copy of the Code Enforcement Officer's denial;
and
(2)
A brief narrative summary of the case explaining the relief sought
and the reasons why the applicant is seeking relief and why the applicant
asserts that the zoning decision is in error.
A.
No existing violations. No use variance shall be issued, and no application
for a use variance shall be considered by the Board of Appeals, for
a property where there is an existing violation of this chapter upon
such property. Other than an existing violation which is the subject
of the area variance application being considered, no area variance
shall be issued, and no application for an area variance shall be
considered by the Board of Appeals, for a property where there is
an existing violation of this chapter upon such property.
B.
Public notice. Upon application for a use variance or area variance,
a public notice of the proposed development, the size and form of
which shall be approved by the Code Enforcement Officer, shall be
posted by the applicant at the project site for a minimum of five
business days. Such notice must remain in place at least until a decision
to approve or disapprove the variance application has been made. The
notice shall contain a narrative description of the development project
which is the subject of the variance application; specification of
the nature of the variance requested and reference to the applicable
use and other regulations of this chapter; specification of the time
and place of the public hearing; and specification as to whom and
by when any public comments are to be communicated. The notice must
be placed at or near the property line in the front yard so that it
will be plainly visible from the street, and in cases where a property
has frontage on more than one street, an additional sign must be placed
at or near the property line on any additional street frontage so
that the sign will be plainly visible from the street on which it
has such additional frontage.
C.
Failure to comply. Any use variance or area variance granted pursuant
to this chapter shall be revocable upon the order of the Board of
Appeals at any time upon the failure of the owner or the operator
of the use or structure covered by the variance to observe all requirements
of this chapter with respect to the maintenance and conduct of the
use, upon the failure to observe all conditions in connection with
such variance which were designated by the Board of Appeals in issuing
the same, or upon the discovery that material submitted with the request
for the variance was materially false or misleading. Prior to revoking
any such variance, the Board of Appeals shall give the holder of the
variance at least 10 days' written notice of the violation. If within
such 10 days the variance holder so requests, the Board of Appeals
shall hold a hearing upon the revocation of such variance and shall
give the applicant for the hearing at least 10 days' written notice
thereof either by certified mail, return receipt requested, or by
personal service. The foregoing provisions shall not be deemed to
preclude the use of any other remedy prescribed by law or by this
chapter with respect to violations of the provisions of this chapter
giving rise to such action for revocation.
D.
Failure to commence and complete construction. Any area variance
or use variance granted pursuant to this chapter shall automatically
expire and be of no further force and effect six months after the
granting thereof unless, within such six-month period, substantial
construction shall have been commenced. Unless otherwise provided
in the granting of the variance, such construction must be completed
within one year of the date of commencement of substantial construction.
If construction is not completed within such twelve-month period,
the variance shall automatically expire and be of no further force
or effect. The Board of Appeals shall be authorized, upon application
and without hearing, to grant extensions of the variance for periods
not to exceed six months in duration or to reinstate a lapsed variance
for good cause shown.
E.
Expiration of use variance. Whenever a use established pursuant to
a use variance shall have been abandoned for a term of six months
or more, or whenever the location of such use is substantially destroyed,
then in such event the land, building or structure in which said use
shall have existed shall not thereafter be used for the previously
established use. A structure shall be "substantially destroyed" if
the cost to repair and replace the same exceeds 50% of the then-current
structural replacement value thereof.
F.
Effect of denial. Where the Board of Appeals denies (on other than
procedural grounds) a request for a use variance or area variance
or otherwise rules against the applicant, the Board of Appeals may
not consider another application requesting any or all of the same
legal relief for a period of one year from the date of such denial
or withdrawal, except:
G.
Appeal of decision. A person aggrieved by any decision of the Board
of Appeals may apply to the Supreme Court for a review by a proceeding
under Article 78 of the New York State Civil Practice Law. Any such
appeal shall stay all proceedings in furtherance of the action appealed
from unless the Code Enforcement Officer certifies to the Board of
Appeals, after the notice of appeal has been filed, that such a stay
of proceedings would, in the Code Enforcement Officer's opinion, cause
imminent peril to life or property by reason of facts stated in the
certificate. In such a case, proceedings shall not be stayed except
by a restraining order granted by a court of competent jurisdiction.
A.
Authority to grant use variance. The Board of Appeals, on application
following the denial or referral of a zoning permit, shall have the
power to grant a use variance. If the use variance is granted, the
applicant must obtain site plan review approval from the Planning
Board prior to commencing the use or obtaining a building permit or
zoning permit.
B.
Required finding of unnecessary hardship. No such use variance shall
be granted by the Board of Appeals without a showing by the applicant
and finding by the Board of Appeals that applicable zoning regulations
and restrictions have caused unnecessary hardship.
(1)
Unnecessary hardship. In order to prove such unnecessary hardship,
the applicant shall be required to 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 all of the
following four criteria are satisfied:
(a)
The applicant cannot realize a reasonable return on the entire
parcel of property, provided that lack of return is substantial as
demonstrated by competent financial evidence;
(b)
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 involved;
(c)
That the requested use variance, if granted, will not alter
the essential character of the neighborhood; and
(d)
That the alleged hardship has not been self-created.
(2)
Reasonable rate of return. In order to make a determination that
the applicant is unable to realize a reasonable rate of return, the
Board of Appeals must find that the entire original or expanded property
holdings of the applicant (and not just the site of the proposed development
project) are incapable of producing a reasonable rate of return. No
use variance shall be granted unless, in addition to satisfying all
other applicable provisions of law and this chapter, the Board of
Appeals finds the that the applicant has clearly demonstrated, by
detailed "dollar and cents" proof, the inability to obtain a reasonable
return for the entire parcel (and not just the site of the proposed
development project) and for each and every permitted use in the district
(including those uses permitted by special use permit).
(3)
Unique hardship. No use variance shall be granted unless, in addition
to satisfying all other applicable provisions of law and this chapter,
the Board of Appeals finds that the entire parcel of which the development
project is a part possesses unique characteristics that distinguish
it from other properties in the area.
(4)
Essential character of the neighborhood.
(a)
In making its determination of whether a proposed development
project will alter the essential character of the neighborhood, the
Board of Appeals shall take into account factors that are of vital
importance to the citizens of the Town, including, without limitation:
[1]
The rural residential and scenic and natural character of the
Town;
[2]
Its irreplaceable recreation and tourism sites;
[3]
The extent of hazard to life, limb or property that may result
from the proposed development project;
[4]
Health impacts;
[5]
The social and economic impacts of traffic congestion, noise,
dust, odors, emissions, solid waste generation and other nuisances;
[6]
The impact on property values; and
[7]
Whether the applicant will use a style of development that will
result in degradation to the air quality, water quality or scenic
and natural resources of the Town.
(b)
In order to find that the proposed development project does
not alter the essential character of the neighborhood, the Board of
Appeals shall interpret the public interest in said essential character
of the neighborhood to require, at a minimum, that the development
project will not do any of the following:
(5)
Self-created hardship. The Board of Appeals shall find that the applicant
suffers from a self-created hardship in the event that the Board determines
that:
(a)
The applicant's inability to obtain a reasonable return on the
property as a whole results from having paid too much or from a poor
investment decision;
(b)
The applicant previously divided the property and is left with
only a portion which suffers from some unique condition for which
relief is sought and which did not apply to the parcel as a whole;
or
(c)
When the applicant purchased the property, he or she knew or
should have known the property was subject to the zoning restrictions.
C.
Additional required submissions for use variance. In addition to
the application requirements set forth elsewhere in this chapter,
an application for a use variance shall contain a typewritten narrative
explaining what the application is for and how the development project
meets or exceeds all of the criteria for a use variance, including:
(1)
Evidence.
(a)
Competent financial evidence containing reasonable specification
of the nature and factual particulars of such claim, and articulating
the basis for the applicant's claim, and including, at a minimum (as
to the entire parcel of which the proposed development project is
a part):
[1]
Date of acquisition;
[2]
The purchase price;
[3]
Present value of the property;
[4]
The amount of real estate taxes;
[5]
The amount of mortgages or liens and other expenses;
[6]
The asking price for the property when it had been offered for
sale;
[7]
The costs of demolishing any existing structures on the property;
[8]
Cost of erecting a new building(s) for each and every permitted
use in the zoning district (including uses allowed by special use
permit);
[9]
Efforts to market the property; and
[10]
A schedule of all other property in common ownership
at either the date of the enactment of this chapter or thereafter.
(b)
Competent financial evidence must include dollars and cents
proof, such as appraisals, economic studies and any other evidence
supporting the applicant's contention that the desired relief is appropriate,
including appraisals relating to any alleged diminution of all or
substantially all of the fair market value of property. For the purposes
of this section, "common ownership" means all other interests in property
either located within the Town or contiguous to the Town that is held
by the applicant, whether such ownership is of a legal or equitable
interest, in whole or in part, contiguous or not, and whether such
property interest is held by the applicant through a legal or equitable
interest in a(nother) corporation, partnership, trust, business, entity,
association, fund, joint venture, or individually.
(2)
Evidence demonstrating the unique nature of parcel as a whole. The
fact that the improvements already existing at the time of the application
are old, obsolete, outmoded or in disrepair or the fact that the property
is then unimproved shall not be deemed to make the plight of the property
unique or to contribute thereto. Exceptional topographic conditions
are an example of a factor demonstrating the unique nature of the
property.
(3)
Evidence demonstrating that the proposed development project will
not change the essential character of the neighborhood with regard
to physical, economic, social or environmental elements. Adverse impacts
to the essential character of the neighborhood include, but are not
limited to, decreased quality or increased quantity of stormwater
runoff, increased soil erosion, increased traffic congestion, decreased
road quality, impairment of the scenic or rural character of roads,
increased noise, dust, odor and/or glare, reduced wildlife habitat,
decreased air quality, decreased water quality, impairment of the
viewshed, creation of solid wastes, negative impacts on sustainability
efforts, increased social costs, increased emergency response times,
negative impacts to public infrastructure, decreased property values,
and negative impacts on the health of area residents.
(4)
Evidence showing that the hardship is not self-created; to wit that,
either:
(a)
When the property was purchased the zoning restrictions from
which a use variance is now sought were not in existence or did not
otherwise apply; or
(b)
Some other change has occurred since the applicant's purchase
which makes the use nonconforming, as long as the change was not caused
by the applicant.
D.
Minimum use variance to be granted. The Board of Appeals in the granting
of use variances shall grant only the minimum variance that it shall
deem necessary and adequate to allow an economically beneficial use
of the property and at the same time preserve and protect the essential
character of the neighborhood and the health, safety and welfare of
the community.
Required submission for use variance for explicitly prohibited use. In addition to all of the other information required for all use variance applications (set forth in §§ 250-60C and 250-63C above) and/or all other information required for appeal applications (set forth in § 250-61B), the following reports shall be required to be submitted as part of any application or appeal concerning what is otherwise an explicitly prohibited use. The purpose of these reports in the context of otherwise explicitly prohibited uses is to assist the Board of Appeals in its determination as to the impact of the proposed development project on the Town and/or the essential character of the neighborhood and/or to determine whether the proposed development project otherwise complies with the requirements of this chapter:
A.
A completed draft of an Environmental Assessment Form, Part I.
B.
The approximate location of all neighboring residential, hamlet,
park/recreational, and/or agricultural areas, as well as all critical
environmental areas (if any) within a two-mile radius of the perimeter
of the site of the proposed use.
C.
A traffic impact report, containing the following:
(1)
The proposed traffic circulation plan, the projected number of motor
vehicle trips to enter or leave the site, estimated for daily and
peak hour traffic levels;
(2)
Existing and proposed daily and peak traffic hour levels and road
capacity levels;
(3)
A determination of the area of impact of traffic to and from the
proposed development project;
(4)
The proposed traffic routes to the nearest intersection with an arterial
highway, including gross weights and heights of vehicles requirements
presented by the proposed development project;
(5)
The projected traffic flow pattern, including vehicular movements
at all major intersections likely to be affected by the proposed development
project;
(6)
The impact of this traffic upon existing abutting public and private
ways in relation to existing road capacities;
(7)
A traffic impact analysis of the effects of the proposed development
project on the transportation network in the Town using passenger
car equivalents;
(8)
Articulation of the effects and impacts of the proposed development
project on traffic based on existing conditions and projected future
background traffic on the state, county and Town road system;
(9)
Evaluation of whether the resulting traffic conditions are likely
to hinder the passage of police, fire and emergency response vehicles
or degrade the quality of life, and/or otherwise contribute to hazardous
traffic conditions; and
(10)
Determination of whether there is sufficient road frontage so
that any vehicle leaving the site may turn into the lane of traffic
moving in the desired direction and be channeled within such lane
before crossing the nearest intersection or proceeding along the road,
and any vehicle entering the property may turn out of the nearest
lane of traffic without interfering with other traffic.
D.
An evaluation of:
(1)
Appropriate roadway geometry including required road widths, bridge
widths, starting and stopping sight distances, intersection sight
distances, horizontal and vertical curves along the proposed traffic
routes;
(2)
The adequacy of existing pavement structures along the proposed traffic
routes to accommodate the full weight load of any high-impact trucks
likely to be used in connection with the proposed development project;
and
(3)
Impacts to the rural or scenic character of any roads along the proposed
traffic route.
E.
A description of ingress and egress through the proposed development
project site through which equipment and supplies will be delivered
and which will provide access during and after construction, and identification
of any roads, streets, intersections, bridges and other facilities
along the proposed traffic route that do not meet New York State Department
of Transportation standards. Such description and identification shall
describe any anticipated improvements to existing roads, bridges or
other infrastructure; any new road or access construction measures
which will be taken to avoid damaging access/traffic routes, and measures
that will be taken to restore damaged routes following construction,
and measures to maintain the scenic and/or rural characteristics of
such roads.
F.
A noise impact report on the following topics:
(1)
The existing audible conditions at the development project site to
identify a baseline sound presence and preexisting ambient noise,
including seasonal variation.
(2)
A description and map of sound-producing features of the proposed
development project from any noise-generating equipment and noise-generating
operations that will be conducted in connection with the proposed
project site, including noise impacts from truck traffic travelling
within the Town to and from the proposed development project.
(3)
For the noise generated by construction and use of the proposed development
project, the range of noise levels and the tonal and frequency characteristics
expected, and the basis for the expectation.
(4)
A description and map of the existing land uses and structures, including
any sound receptors (i.e., residences, hospitals, libraries, schools
and places of worship, parks, areas with outdoor workers) within one
mile of the development project parcel boundaries. (Said description
shall include the location of the structure/land use, distances from
the proposed development project and expected decibel readings for
each receptor.)
(5)
The report shall specifically cover (without limitation) low-frequency,
A-weighted, infrasound, pure tone, and repetitive/impulse noise.
(6)
The report shall describe the development project's proposed noise-control
features, including specific measures proposed to protect workers
and mitigate noise impacts for sensitive receptors.
G.
A visual presentation of how the site of the proposed development
project will relate to and be compatible with the adjacent and neighboring
areas, within a two-mile radius of the perimeter of the site of the
proposed development project. This presentation shall include computerized
photographic simulation showing the site during construction and fully
developed and demonstrating any visual impacts from strategic vantage
points. Color photographs of the proposed site from at least two locations
accurately depicting the existing conditions shall be included. The
study shall also indicate the color treatment of the facility's components
and any visual screening incorporated into the project that is intended
to lessen visual prominence.
H.
A report containing:
(1)
A description of any natural gas and/or petroleum extraction, exploration
or production wastes, and any other solid wastes, industrial wastes,
hazardous wastes, toxic wastes, and pollutants expected to be produced,
utilized, stored, injected, discarded, discharged, disposed, released
or maintained on the development project site;
(2)
A description of controls and practices to eliminate or minimize
release of all such materials into the environment; and
(3)
A plan for ultimate disposal of such materials whether on or off
site.
I.
A discussion of:
(1)
The extent of the use of nonrenewable resources during the initial
and continued phases of the proposed development project;
(2)
The expected duration of the initial and continued phases of the
proposed development project; and
(3)
The extent to which the proposed development project may contribute
to an irreversible commitment to the continuation of this proposed
use by future generations.
J.
A discussion of characteristics of the proposed development project
that may decrease the Town's and/or the neighborhood's suitability
for other uses, such as residential, commercial, historical, cultural,
tourism, recreational, environmental or scenic uses.
K.
An assessment describing the adverse effects and impacts on Town
revenue and costs necessitated by additional public facility and service
costs likely to be generated by the proposed development project.
L.
A fire prevention, equipment failure, and emergency response report,
containing the following:
(1)
Description of the potential fire, equipment failures and emergency
scenarios associated with the proposed development project that may
require a response from fire, emergency medical services, police or
other emergency responders;
(2)
An analysis of the worst-case disaster associated with the proposed
development project and the impact of such a disaster upon the health,
safety and welfare of the inhabitants of the Town and their property;
(3)
Designation of the specific agencies that would respond to potential
fires, equipment failures, accidents or other emergencies;
(4)
Description of all emergency response training and equipment needed
to respond to a fire, accident, equipment failure or other emergency,
including an assessment of the training and equipment available to
local agencies; and
(5)
The approximate or exact location of all fire, police and emergency
response service facilities within a five-mile radius of the perimeter
of the site of the proposed use, and a detailed fire control and pollution
prevention and emergency response plan.
M.
A public facilities and services assessment, describing:
(1)
Whether current Town public facilities and services, including water
supply, fire protection, school services, recreation facilities, police
protection, roads and stormwater facilities, are adequate for the
proposed development project (taking into account all other uses that
have been permitted or are currently operating in the Town);
(2)
A comparison of the capacity of the public services and facilities
to the maximum projected demand that may result from the proposed
development project (in determining the effect and impact of the proposed
development project on fire, police and emergency services, the review
shall take into consideration response times and the number and location
of available apparatus and fire, police and emergency service stations,
and specification as to whether the same are manned by full-time,
paid or volunteer professional service personnel; and where applicable,
calculation of response time shall also include the time it takes
volunteer emergency personnel to get to their stations); and
(3)
A review of the impact of the proposed development project on the
safety of all children going to and from school by car, bus, bicycle,
and walking during and outside of school zone hours and whether safety
measures such as signaled crosswalks, elevated sidewalks, green space
buffers for pedestrians/bikes where established walking/biking route
overlap/run along intended truck routes so as to prevent accidents.
N.
A property value analysis, prepared by a licensed appraiser in accordance
with industry standards, regarding the potential impact of the development
project on the value of properties adjoining the project site.
O.
A human health impact assessment that identifies ways in which the
proposed development project could adversely affect the health of
Town residents and a priority list of recommendations to minimize
the potential health impacts of the proposed development project.
The health impact assessment shall at a minimum include:
(1)
A risk assessment of possible impact of chemical exposure on the
health of residents, including the chemical abstract service number
of all chemicals proposed to be used or generated at the development
project site;
(2)
An assessment of possible health effects due to industrial operations
in non-heavy-industrial zoned areas;
(3)
An assessment of possible health effects due to community changes,
including the presence of an industrial activity in a previously non-heavy-industrial
area, a perceived loss of shared community ideals and cohesion, declining
property values, impacts to the education system and sudden changes
in population numbers, demographics and customs; and
(4)
Proposed remedies to address principal findings.
A.
Authority to grant area variances. The Board of Appeals shall have
the power, upon an appeal from a decision or determination of the
Code Enforcement Officer or the Planning Board, to grant an area variance.
B.
Required considerations in granting an area variance.
(1)
"Area variance" shall mean the authorization by the Board of Appeals
for the use of land in a manner that is not allowed by the dimensional
or physical requirements of the applicable zoning regulations.
(2)
In making its determination, the Board of Appeals shall take into
consideration the benefit to the applicant if the area variance is
granted as weighed against the detriment to the health, safety and
welfare of the neighborhood or community by such a grant. In making
such determination, the Board of Appeals shall also consider:
(a)
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;
(b)
Whether the benefit sought by the applicant can be achieved
by some method, feasible for the applicant to pursue, other than an
area variance;
(c)
Whether the requested area variance is substantial;
(d)
Whether the proposed area variance will have an adverse effect
or impact on the physical or environmental conditions in the neighborhood
or district; and
(e)
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.
C.
Minimum area variance to be granted. The Board of Appeals in the
granting of area variances shall grant only 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.
D.
Additional required submissions for area variance. In addition to the information required for all applications set forth in § 250-60C above, applications for an area variance shall contain a typewritten narrative explaining what the application is for and how the development project meets or exceeds all of the criteria for an area variance.
