A.
In any business district where any part of an upper story of a nonresidence
building is used for offices, studios or workshops, a court is required
along at least one side of such building when said building is over
50 feet deep from a main front wall. The minimum width of such court
shall be four feet for a two-story building, and for each additional
story, one foot shall be added as the required width. For each foot
that a building is more than 25 feet in width, two inches shall be
added to the width of the required court. The depth of an inner court
shall be nine feet for a two-story building, 12 feet for a three-
or four-story building, and for each additional story, one foot shall
be added. Where any part of a story in such a district is used for
residence purposes, the width of an outer court on the lot line, measured
from the lot line to the nearest wall of the building, shall be at
least five feet for a one-story building, 6 1/2 feet for a two-story
building, eight feet for a three-story building, and shall be increased
in width one foot for each additional story in height throughout the
entire length of said court, beginning at a point 35 feet back from
the main front wall. If no part of a building is occupied for offices,
studios, workshops or residence purposes, no court is required.
B.
In any commercial district, where no part of a building is used for residence purposes, except by a janitor or watchman, no court shall be required; otherwise, all courts shall conform to the requirements of Subsection A.
C.
In any business or commercial district, side yards are not required
for nonresidence buildings in the event that a fire passage is provided
as herein required, but a side yard may be used in place of a fire
passage, or a required court if of corresponding width; but, for a
building used entirely for residence purposes in any such districts,
the same yards shall be required as are prescribed for residence districts.
A.
On any corner lot, no wall, fence or other structure shall be erected
or altered, and no hedge, tree, shrub or other growth shall be maintained,
nearer the corner than a line connecting points in each street 10
feet from the measured line along such street or which may cause danger
to traffic on the street by obscuring the view.
B.
No lot area shall be so reduced and no building shall be erected
or altered so that the dimensions of any of the open spaces shall
be less than herein prescribed.
C.
The area required in a yard at any given level shall be open from
such level to the sky unobstructed except for parapets above the bottom
of such yard and except for the ordinary projection of window sills,
cornices and other ornamental features to the extent of not more than
18 inches.
Steps and landings solely used for egress, chimneys not projecting
more than two feet, and bay windows that do not aggregate in width
more than 1/2 of the width of the frontage of the building may project
not more than three feet in front of it. No porch or piazza may project
in front of the main wall above the second story. No projections shall
project beyond the front line of apartment buildings except molded
cornices, sills, pilasters and base courses not to exceed four inches;
also, ornamental, nonsupporting pilasters or columns, entablatures,
pediments and steps at the main entrance doorways may project out
18 inches beyond the wall line where the buildings sit back 15 feet
or more. This section shall not apply, however, to buildings erected
in a Residence A District.
A.
A deck is defined as any fabrication of any material other than earth
or masonry product, that is constructed above the grade level of the
location where situated. Except to the extent that an exemption is
provided herein, all requirements heretofore established for structures
shall continue to apply to those structures generally referred to
or described as a "deck."
B.
Regulations.
(1)
Building permits shall be required for the construction of decks,
subject to inspection by the Superintendent of Buildings, to the same
extent as are required for other structures. The application for a
permit shall include a diagram of the proposed deck satisfactory to
the Building Department, showing dimensions and distances of the deck
to the boundary of the parcel in addition to the materials to be utilized
in said construction.
(2)
No deck shall be constructed closer to the street than the front
building line of the main structure upon the property.
(3)
No deck(s) shall be constructed or maintained so that any portion
thereof exists above the first story of the dwelling to which it is
accessory, except in the case of a high-ranch-type house, in which
case the deck shall not be constructed at a level higher than the
lowest floor of the residence in question.
[Amended 6-21-2018 by L.L. No. 3-2018]
(4)
Decks above 10 inches in height above average grade shall be
considered structures for the purpose of calculating the permissible
area of coverage on the building lot; and if removable, decks shall
not be deemed a permanent improvement.[1]
(5)
A deck or similar structure, including patios, constructed at
grade level or less than 10 inches above grade in the rear yard shall
not require a permit.
(6)
All decks shall comply with the side yard and rear yard setback
requirements for the zoning district in which the deck is located
as set forth in the Schedule of Regulations.[2]
[2]
Editor's Note: The Schedule of Regulations is included as an attachment to this chapter.
A.
Fees and deposits for various permits, licenses and proceedings authorized
by the chapter shall be in the amounts set forth, from time to time,
by resolution of the Board of Trustees.
B.
Costs incurred by the Village. On all applications to the Board of
Trustees, Zoning Board of Appeals, Planning Board, Board of Architectural
and Site Plan Review, and Traffic Commission, the applicant shall
be liable to the Village for and shall pay the following costs and
fees which are actually and necessarily incurred by the Village in
processing the application, which costs and fees shall be consistent
with the costs and fees for the services then prevailing in the community:
C.
Advertising. The applicant shall incur all fees associated with advertising,
public notice(s) and/or hearing dates published in the official and/or
alternate newspaper designated by the Board of Trustees.
D.
Stenographic minutes of meeting. The applicant shall be responsible
for all expenses incurred by the Village.
F.
Inspection costs. In case of inspections not otherwise provided by
the Building Department of the Village, the applicant shall be responsible
for any costs incurred.
H.
Planning, traffic, environmental or other specialized studies. The
applicant shall be responsible for any/all reasonable fees incurred
for applications before the Planning Board and Traffic Commission.
The applicant shall also be responsible for all costs incurred for
environmental studies and SEQRA requirements and/or any other specialized
studies required by these boards, commissions or the Board of Trustees.
I.
Action held until payment of fees. No action shall be taken by any
Village board or by any Village official on any application subject
to the requirements of this chapter unless and until all fees required
under this section and fee code of the Building Department shall have
been paid.
A.
In the residential districts, a private detached or attached garage
accessory to a dwelling on the same lot or parcel shall be permitted
in a rear yard or side yard only.
B.
In any residential district where residential use is permitted, a
private detached or attached garage shall be permitted as an accessory
use to a multiple-family dwelling as part of the site plan approval
process.
C.
In any residential district, an accessory garage for more than two
passenger vehicles shall be prohibited unless a special use permit
therefor shall have been granted by the Board of Trustees.
D.
No commercial vehicle shall be parked or stored in any accessory
residential garage.
E.
No garage shall exceed 12 feet in height.
F.
No detached garage shall have less than a two-foot side yard setback
and a two-foot rear yard setback.
G.
Except for outdoor pools and attached decks, the following regulations
shall apply to accessory buildings and structures in any residential
district:
(1)
Detached accessory buildings or structures, which are greater
than 100 square feet, or decks in excess of 10 inches in height above
grade, may be located in, and may occupy, not more than 40% of the
area of any rear yard and shall be located a distance of at least:
(2)
No structure shall be permitted less than four feet from any
lot line.
H.
No accessory building or structure shall be located closer to the
street upon which the property abuts than the existing building line
of the house.
I.
Except for garages, no accessory building or structure shall exceed
10 feet in height.
J.
No accessory building may be used as habitable space.
L.
Exterior basement entrances shall be prohibited unless expressly
permitted by a special use permit from the Board of Trustees.
M.
An open porch may extend into the required front yard no more than
six feet.
N.
In a residential district, where a lot abuts on a parkway, the lot
may be considered to have a front and front yard on the street and
also on the parkway, and where a building accords with this subsection,
a private accessory garage may be incorporated in the building or
attached thereto, regardless of distance from streets, provided the
front yard required in the district in which it is erected is maintained.
O.
In any residential district, no accessory building shall be nearer
the front street line than 60 feet, and if on a corner plot, not less
than 25 feet from the side street.
A.
Map and lines adopted. The map entitled "Department of Public Works,
Nassau County, New York, Detail Showing Proposed Alteration of Alignment
of Hempstead Avenue from Park Boulevard Northerly to Dogwood Avenue,
Malverne," dated March 28, 1952, a copy of which accompanies this
chapter, referred to herein as the "Hempstead Avenue Setback Map,"
is hereby adopted and made a part hereof, and the lines, both of which
are designated thereon as "Proposed New Property Line," are hereby
adopted as the front setback lines for that part of Hempstead Avenue
shown on said map.
B.
Front yard setback. Subject to the provisions of Subsections C and D hereof, the provisions of this chapter requiring a minimum front yard shall not apply to any land abutting on that part of Hempstead Avenue shown on the Hempstead Avenue Setback Map along the lines each designated thereon as a proposed new property line.
C.
Proposed new property line. Any other provision of this chapter to
the contrary notwithstanding, no building or structure hereafter erected
on any lot, piece or parcel of land abutting that part of Hempstead
Avenue shown on the Hempstead Avenue Setback Map along the lines designated
thereon as a proposed new property line shall be so constructed that
any part thereof shall extend into the area on said map between said
lines.
D.
Setback determined. Any other provision of this chapter to the contrary
notwithstanding, each building or structure hereafter erected on any
lot, piece or parcel of land abutting that part of Hempstead Avenue
shown on the Hempstead Avenue Setback Map along the lines each designated
thereon as a proposed new property line shall be set back from such
line on the same side of said avenue a distance equal to the average
distance which all other business buildings and structures within
the same block on such side of said avenue shall then be set back
from such line; provided, however, that no such building or structure
shall be so constructed that any part thereof shall be nearer to such
lines than any part of the then nearest existing business building
or structure located within 30 feet thereof.
E.
Existing buildings. Buildings and structures existing on or completed on or before July 15, 1953, and extending into the area on the Hempstead Avenue Setback Map between the lines each designated thereon as a proposed new property line shall not be deemed existing buildings or structures for the purpose of applying the provision of Subsection D hereof, and such buildings and structures, if relocated, remodeled or reconstructed at any time after that date, shall conform to the provisions of this section.
A.
Legislative findings. The Incorporated Village of Malverne Board
of Trustees has found that there are instances in the Village of owners
of residential properties exploiting their buildings by creating illegal
occupancies which expose their residents therein to living in substandard
rooms or apartments. Such practices are in derogation of the health,
safety and welfare of members of the public, who are entitled to such
suitable and safe housing. Such illegal occupancies in residential
properties also have a detrimental effect on Village services to the
community. Accordingly, enforcement of applicable Village Code provisions
is a legitimate governmental obligation which requires appropriate
consideration.
B.
Provisions relating to illegal occupancy prosecutions.
(1)
It shall be unlawful to occupy or permit to be occupied or to
assist in the occupancy of a building or dwelling unit where the number
of occupants exceeds the permitted number of occupants. It shall be
unlawful to occupy any building or dwelling in violation of the certificate
of occupancy.
(2)
Evidence of nonpermitted occupancy.
(a)
In all civil and criminal prosecutions brought for enforcement of
provisions of the Village Code in respect to nonpermitted occupancy
of single- and two-family dwellings, the existence of any of the conditions
set forth below shall constitute evidence, but not prima facie evidence,
that a nonpermitted occupancy exists at the premises. The existence
of two or more of the conditions set forth below shall constitute
prima facie evidence that a nonpermitted occupancy exists at the premises:
[1]
Any dwelling which maintains more than one gas
meter or more than one electric meter or more than one water meter
is being used as the residence of two or more families.
[2]
Any dwelling which maintains more than two gas
meters or more than two electric meters or more than two water meters
is being used as the residence of three or more families.
[3]
A single-family dwelling which maintains any entrances
thereto, which entrance(s) has not been set forth on any plans approved
by and on file with the Village Building Department, is being used
as the residence of two or more families.
[4]
A two-family dwelling which maintains any third
or additional entrance thereto, which entrance(s) has not been set
forth on any plans approved by and on file with the Village Building
Department, is being used as the residence of three or more families.
[5]
A dwelling which has been advertised in any newspaper,
magazine or local advertising publication as being available for sale
or rent, which advertisement expressly or implicitly provides that
such dwelling contains rooms for rent, more than one separate dwelling
living unit, or may be occupied by more than one separate family,
is being used as a dwelling containing the number of rooms for rent,
dwelling units or families stated or implied in such advertisement.
[6]
There exist two or more doorbells such as would
indicate two or more families are residing in the dwelling.
[7]
There exists more than one mailbox or post office
address such as would indicate two or more families are residing in
the dwelling.
[8]
There exist permanent partitions or internal doors
which may serve to bar access between segregated portions of the dwelling,
including but not limited to bedrooms, or the inability of the occupant
or person in possession thereof to have unimpeded and/or lawful access
to all parts of the dwelling unit.
[9]
There exist two or more kitchens, each containing
one or more of the following: a range, oven hot plate, microwave,
or other similar device customarily used for cooking or preparation
of foods and a refrigerator or sink.
(b)
Nothing in this section shall be construed to lessen or modify
any other rights of the Village in the enforcement of the terms of
the Village Zoning Code.
(3)
The presumption raised by proof of the existence of any such conditions as set forth in Subsection B herein may be rebutted by conclusive evidence that such conditions do not, in fact, exist or that such conditions, in fact, comply with the Village Code.
(4)
A person charged with a violation of the Village Code as described
herein may, if he or she so chooses, demand an inspection of the subject
premises by the Village Building Department to rebut such presumption(s).
Such demand shall be in writing addressed to the Village Building
Department. The Village Building Department shall prepare a report
of the finding of the inspection together with photographs, if appropriate.
(5)
Nothing in this section shall require presumptive evidence to
support a finding of an illegal occupancy, and any direct evidence
of an illegal occupancy shall be sufficient to support a finding of
such illegal occupancy.
C.
FAMILY
SINGLE-FAMILY DWELLING
Definitions. As used in this section, the following terms shall have
the meanings indicated:
A family consists of one or more persons, whether or not
related to each other by blood, marriage or adoption, all of whom
live and cohabit as a single, stable and bona fide housekeeping unit,
provided that such persons together occupy and own, lease or rent
the whole of the building or dwelling unit, in a family-like living
arrangement as the functional and factual equivalent of a natural
family and use all rooms and housekeeping facilities in common. Any
such number of persons shall not be deemed to constitute a family
if any one of such persons may not have lawful access to all parts
of the principal building or separate building or dwelling unit or
if any one or more of such persons lease or rent any portion of such
principal building and/or separate accessory building or dwelling
unit from any other person.
A building designed for and occupied exclusively as a home
or residence for not more than one family, containing a single kitchen
in which members of a family all live and cook together as a single
housekeeping unit. Such a building shall not contain separate or segregated
internal partitions or locked internal doors barring access between
portions of the dwelling.
D.
Penalties for offenses.
(1)
A violation of a Code provision involving nonpermitted occupancy
of a single- or two-family dwelling is a violation, as that term is
defined in the New York State Penal Law.
(2)
Notwithstanding any provision of this Code inconsistent herewith,
for each Code violation involving a nonpermitted occupancy of a one-
or two-family dwelling, or of an approved three-family dwelling, the
owner, occupant or any person who is in charge of the subject property
at the time of the violation shall be liable for a fine of not less
than $3,500 and not more than $5,000, or by imprisonment for a period
not to exceed 15 days, or both, following a conviction for a first
offense; and not less than $5,000, and no more than $7,500, or by
imprisonment for a period not to exceed 15 days, or both, for each
additional offense.
(3)
Each week that the violation continues to exist shall constitute
a separate and distinct violation.
E.
Enforcement; severability.
(1)
The Superintendent of Buildings and his or her assistants shall
be responsible for investigating and documenting violations of any
case of illegal occupancy within the Village.
(2)
Prosecutions for violations hereunder may be instituted in the
Village Justice Court or in the District Court of the County of Nassau.
(3)
The Village Attorney may, upon direction of the Board of Trustees,
institute an action in the Supreme Court of the State of New York,
County of Nassau, for appropriate relief where it appears under the
circumstances that the imposition of a fine alone would not be adequate.
(4)
If any provision of this section shall be determined to be unconstitutional
or otherwise unenforceable, it shall not affect the constitutionality
or enforceability of the remaining provisions.
A.
Notwithstanding any other provision of this chapter, any automobile
or other junkyard in existence at the date of the passage of this
chapter, in a residence or business district, shall, at the expiration
of two years from such date, be discontinued.
B.
Notwithstanding any other provision of this chapter, any display
sign or commercial billboard in existence at the date of the passage
of this chapter, in a residence or business district, shall, at the
expiration of three years from such date, be discontinued. The Zoning
Board of Appeals may, however, permit its continuance as a special
exception as herein provided.
A.
The following uses shall not be permitted in any residential district:
motor vehicle repairs of a major nature, including, but not limited
to, auto painting, body work or extensive mechanical repairs. Nothing
contained herein shall be deemed to prohibit either emergency repairs
or preventive maintenance of a minor nature, such as an oil change
or tune up; provided, however, that such preventive maintenance is
performed upon the premises by an individual who is an occupant of
said premises and that the motor vehicle upon which the emergency
repairs and/or preventive maintenance is being performed is registered
in the name of the occupant of said premises. No repairs shall be
made to an unlicensed or inoperative motor vehicle outside of enclosed
buildings.
B.
All motor vehicle repairs are hereby prohibited, except for emergency
repairs, on all public streets in all zoning districts.
C.
All motor vehicle repairs are hereby prohibited in all parking fields.
A.
Special use. Other than the open storage permitted in this section,
no property shall be used for the open storage of any article, merchandise,
material or machinery except that permitted in the Commercial District
by special use permit by the Board of Trustees after notice and public
hearing.
B.
No open or outdoor storage shall be permitted in any street or roadway.
C.
Application required for special use permit for open storage. An
application shall be made in writing by the owner or lessee of the
lot or parcel of land upon which open storage use is applied for,
and said application shall state the following:
(1)
The name of the owner and/or lessee or other occupant.
(2)
A general statement of the location of the property and of the
classification of the use district in which such lot, parcel of land
or plot is located.
(3)
A survey showing the boundary of such parcel, together with
the size of the parcel by metes and bounds.
(4)
A site plan of the parcel showing any buildings or structures
on the property or buildings or structures to be erected thereon and
the proposed location of the open storage.
(5)
A radius map depicting adjacent properties, identifying zoning
districts, structures and current use for all properties within 200
feet of the site.
D.
Mobile recreational, unregistered or inoperative motor vehicles and
boats. The parking and storage of mobile recreational and unregistered
motor vehicles, boats and similar apparatus on premises in residential
districts shall conform to the following requirements:
(1)
No lot or parcel shall be used for the outer storage of an inoperative
or unlicensed motor vehicle or vehicles except as otherwise permitted
in this chapter. No repairs shall be made to an unlicensed or inoperative
motor vehicle outside of enclosed buildings. Nothing herein shall
be construed to prohibit the storage of such vehicle or vehicles inside
a garage or other building located on the premises, provided that
such vehicle or vehicles are owned by the owner or occupant of the
principal building. Where cars, parts, junk or implements are stored
outside a garage, they shall be kept at least 60 feet from the street
upon which the building fronts and shall be suitably and adequately
screened from all streets permitting a view thereof.
(2)
No automobile trailer, camper, mobile home, house trailer, recreational
vehicle, or other vehicle designed or outfitted with sleeping accommodations
that has an overall length in excess of 25 feet and/or an overall
height in excess of 12 feet, as measured from the ground to its highest
point of vertical rise as situated on the property, shall be parked
or stored in a residential district in the Village, except that such
vehicle may be parked or stored and used for sleeping and/or habitation
for a period of time not to exceed 12 months upon an approved application
and permit issued by the Superintendent of Buildings, and provided
that the Superintendent of Buildings determines that the premises
have been rendered uninhabitable due to fire, flood or other natural
or man-made disaster.
(3)
No automobile trailer, camper, mobile home, house trailer, recreational vehicle described in Subsection D(1) herein may be parked or stored on property located in a residential district unless the following requirements are satisfied:
(a)
Only one such vehicle may be parked or stored on any premises.
(b)
Such vehicle must be owned, leased or rented by the owner or
occupant of the premises upon which it is parked or stored.
(c)
In no case shall such vehicle be used for storage while parked
or stored on such lot unless such structure is fully enclosed within
a garage or other access-only structure.
(d)
No such vehicle may be parked or stored in the area of any premises
between the street or roadway and the closest point of the main structure
of such premises that is nearest to the street or roadway, otherwise
known as the "front yard," unless such vehicle is fully enclosed within
a garage or other accessory structure. All properties adjacent to
two intersecting streets shall be deemed to have two front yards under
this section.
(e)
No such vehicle shall be parked or stored within three feet
of the property line of any adjacent property, unless such vehicle
is fully enclosed within a garage or other accessory structure.
(4)
No unregistered motor vehicles shall be parked or stored on
property located within any residential district unless such vehicle
is fully enclosed within a garage or other accessory structure.
(5)
No boats, boats with trailers, trailers, jet skis, wave runners
or other marine apparatus designed or outfitted with sleeping accommodations
and/or rest rooms or bathroom facilities, having an overall length
in excess of 25 feet and/or an overall height in excess of 12 feet
as measured from the ground to its highest point of vertical rise,
including any mast or attached outrigger, as situated on the property,
shall be parked or stored in a residential district in the Village.[1]
(6)
No boats, boats with trailers, trailers, jet skis, wave runners
or other marine apparatus equal to or less than 25 feet in length
or 12 feet in height may be parked or stored on property located in
a residential district unless the following requirements are satisfied:[2]
(a)
Only one such boat, boat with trailer, trailer or other marine
apparatus may be parked or stored on any premises.
(b)
Such boat must be registered and owned, leased or rented by
the owner or occupant of the premises upon which it is parked or stored.
(c)
In no case shall such boat, boat with trailer, trailer, jet
skis, wave runners or other marine apparatus be used for storage while
parked or stored on such lot unless such boat, boat with trailer,
trailer or other marine apparatus is fully enclosed in a garage or
other accessory structure.
(d)
No such boat, boat trailer, trailers, jet skis, wave runners
or other marine apparatus may be parked or stored in the area of any
premises between the street or roadway and the closest point of the
main structure of such premises that is nearest to the street or roadway,
otherwise known as the "front yard," unless such vehicle is fully
enclosed within a garage or other accessory structure. All properties
adjacent to two intersecting streets shall be deemed to have two front
yards under this section.
(e)
No such boat, boat with trailer, trailers, jet skis, wave runners
or other marine apparatus shall be parked or stored within three feet
of the property line of any adjacent property, unless such vehicle
is fully enclosed within a garage or other accessory structure.
E.
Enforcement and penalties for offenses.
(1)
The provisions of this section shall be administered and enforced
by the Code Enforcement Officer.
(2)
Any person, corporation, company, partnership, firm or other
legal entity violating any of the provisions of this section shall
commit an offense, the fine for which shall not exceed $500 or imprisonment
for a period not to exceed 15 days, or both, for each offense. Each
daily violation of this section shall constitute a separate offense.
A.
Prohibited actions. No person acting as a real estate broker, agent
and/or salesperson, whether or not licensed by the State of New York,
shall knowingly facilitate the use or occupancy of any dwelling in
a manner which violates the use or occupancy of such dwelling or building
which is permitted by the certificate of occupancy or certificate
of existing use for it or in a manner which violates the permitted
use or occupancy of such dwelling or building under this chapter.
A person shall be deemed to facilitate a use for occupancy of, by,
among other things, advertising or listing a dwelling or building,
showing a dwelling or building to a prospective user or occupant or
otherwise soliciting or encouraging another person to use or occupy
a dwelling or building. Upon the conviction of a licensed broker,
agent or salesperson for a violation of this section, in addition
to the penalties provided for in this section, the Clerk of the Malverne
Justice Court shall forward a record of such conviction to the New
York State Department of State, Division of Licensing Services.
B.
Unless otherwise provided, the provisions of this section shall be
administered and enforced by the Code Enforcement Officer and any
sworn police officer.
C.
Any person, corporation, company, partnership, firm or other legal
entity violating any of the provisions of this section shall commit
an offense, the fine for which shall not exceed $2,000 or imprisonment
for a period not to exceed 15 days, or both, for each offense. Each
day the property is advertised in violation of this section or each
occasion where a party knowingly facilitates the use or occupancy
of a detached dwelling or a two-family attached residential building
in a manner which violates the use or occupancy of such dwelling or
building in violation of this section shall constitute a separate
offense.
No public garage, stable or gasoline-vending station shall be
erected or used within 200 feet of any premises used for a school,
public library, church, hospital or orphanage.
A.
Except for decorative retaining walls not exceeding 18 inches in
height, no retaining wall may be built within the Village unless the
Superintendent of Buildings issues a permit for its construction.
Application for a permit shall be made on a form promulgated by the
Superintendent of Buildings.
B.
No permit shall be issued for a retaining wall unless:
(1)
The application is accompanied by plans for the development
of the land that the retaining wall is intended to support and of
any other land on the same tax lot or lots; or
(2)
The application demonstrates serious erosion or flooding problem,
or a serious threat to public health and safety, which the retaining
wall or walls is intended to eliminate; or
(3)
The applicant provides any additional information requested
by the Superintendent of Buildings to evaluate the application.
C.
In a residential zoning district, or within 50 feet of a residential
zoning district, no retaining wall may exceed five feet in height.
In other districts, no retaining wall may exceed eight feet in height.
Height shall be measured from the lowest point on the adjoining grade.
This subsection shall not prohibit applications for a series of retaining
walls in a parallel step design.
D.
A minimum of five horizontal feet is required between retaining walls
in parallel step design. The area between such retaining walls must
be landscaped with natural material and must be maintained.
E.
No retaining wall may exceed the height of the adjoining grade that
it supports or retains.
F.
Provision must be made to accommodate stormwater on a property during
construction and after completion of a retaining wall.
G.
The height restrictions of this section do not apply to retaining
walls whose construction was completed and which were backfilled prior
to the effective date of this chapter. If such walls are determined
to be unsafe by the Superintendent of Buildings or by a licensed engineer
or architect, they may be repaired, subject to approval by the Superintendent
of Buildings, provided that the repaired structure is of the same,
or smaller, size and type. If such walls are demolished or abandoned,
however, any replacement retaining wall must conform to this section.
H.
No retaining wall may be constructed in a front yard.
A.
Purpose. The Board of Trustees hereby determines that in a community
such as the Village of Malverne, comprised principally of one-family
homes, the aesthetic impact of large parabolic or hemispheric discs
or other similar antennas or devices, measuring several feet in diameter,
can be offensive to the residential community and be inconsistent
with the character of the neighborhood. If unregulated, such devices
can be disruptive to the appearance of the skyline and disrupt the
pleasant nature and character of the community. Also, the interests
of public safety require that such devices be installed in accordance
with well-defined engineering standards, and other safety measures,
such as fencing around the base, may be necessary. These aesthetic
and safety concerns do not arise in connection with dipole antennas,
which blend into the skyline. The Board also finds that a regulatory
scheme such as is set forth herein allows a reasonable balancing of
the needs of the community and the rights of persons to reasonable
access to television or radio stations that they desire and to allow
such antennas to fit into the character of the community.
B.
Permits; when required. No person shall cause, suffer or permit the
erection, construction, installation, relocation and/or maintenance
of any parabolic or hemispheric disc or satellite receive-only antenna
or other similar antenna or device, the purpose of which is to receive
television, radio and/or microwave or other electrical or similar
signals from satellites or from ground facilities which transmit such
signals, except as provided herein.
C.
District permit required.
(1)
In any commercial or industrial district, a satellite receive-only
antenna two meters or less in diameter is permitted without a permit.
(2)
In any district other than a commercial or industrial district,
a satellite receive-only antenna one meter or less in diameter is
permitted without a permit.
(3)
In all other instances, no erection, construction, installation
and/or maintenance of any satellite dish antenna shall be permitted
or continued except when permitted by special use permit by the Board
of Trustees, after public hearing. The first permit granted to any
applicant under this section shall be conditional and shall be for
a period of not more than two years. Any application for renewal of
such conditional permit shall be acted upon in the same manner as
an initial application.
D.
Requirements for special use permits.
(1)
In evaluating whether a special use permit should be issued,
the Board of Trustees shall consider the purposes set forth in this
section.
(2)
The antenna or other device shall be located only in the rear
yard of the lot unless the applicant establishes that other placement
is necessary to obtain reasonable reception.
(3)
No permit shall be issued if the Board of Trustees finds that
either the type of antenna or disc, or the method of its placement,
will endanger the safety of residents, neighbors or pedestrians, or
threaten property on the applicant's lot or adjoining lots.
(4)
Use of any illumination for the disc or antenna is strictly
prohibited.
(5)
All connections shall be made so that wiring and supporting
cables shall not be visible from the street or sidewalk.
(6)
No more than one parabolic, hemispheric, satellite receive-only,
or similar antenna shall be erected, constructed, installed or maintained
on a single lot or premises.
(7)
The Board of Trustees shall impose such screening requirements
that are reasonable to effectuate the purposes set forth in this section
and that will not substantially limit reception.
E.
Application for permit. All applications for special use permits
shall be filed with the Board of Trustees. The application shall describe
the subject premises by street address, shall state the section, block
and lot number and shall describe the present use of the premises.
In addition, the application shall be accompanied by the following:
(1)
A location survey showing existing structures upon the premises,
their location and distance from the proposed disc or antenna, the
dimensions of the parabolic disc or antenna; the setbacks of the parabolic
disc or antenna from each property line; and all properties and structures
within a two-hundred-foot radius of the premises, showing the names
and street addresses of the record owner of each property.
(2)
A detailed plan showing the material from which the parabolic
disc or antenna is to be constructed and the proposed color of the
parabolic disc or antenna and details illustrating the structural
support system.
(3)
A landscape plan illustrating adequate screening of the parabolic
disc or antenna which will be provided to screen the parabolic disc
or antenna from the roadway and adjoining property owners. Unless
demonstrated to be impracticable, all screening required shall be
by coniferous trees and shall be of sufficient height and density
to screen 100% of the parabolic disc or antenna from sight at ground
level from the roadway and from properties located within a two-hundred-foot
radius of the premises during the entire year.
(4)
An application fee in an amount as set forth, from time to time,
by resolution of the Board of Trustees.
F.
Notice required. Prior to the public hearing held by Board of Trustees,
the applicant shall file a certification of notice showing that all
property owners within 200 feet of the applicant's property were notified,
in writing, by the applicant of the application, by certified mail,
return receipt requested, at least 15 days and no more than 25 days
before the date scheduled for the public hearing. In addition, the
Village Clerk shall cause to be published notice of the hearing not
less than 10 days prior to the hearing date.[1]
A.
Permit required. No solar energy system shall be erected or installed
unless an application has been submitted to, and approved by, the
Superintendent of Buildings.
B.
Regulations. The Superintendent of Buildings shall issue a permit
for the erection or installation of a solar energy system, provided
that the application, and proposed erection or installation, complies
with the Long Island Unified Solar Permit Initiative and all other
applicable local, county, state and federal law.
Any provision herein to the contrary notwithstanding, the Board
of Trustees may, upon application and after a public hearing, permit
any land to be used and any building or other structure to be erected
or used in any district of the Village for the office, station or
facilities of a public utility and for the maintenance and operation
of public utility machinery and equipment if said Board shall find
that such use is necessary for adequate public utility service to
any of the residents of the Village and that the proposed location
thereof is the most appropriate available location in the Village
therefor, considering the efficient operation of such utility, the
use district in which such property is located, the character of the
neighborhood and the possible effect of the maintenance of such use
on the value of buildings in the vicinity; and said Board may, if
it grants such permit, impose such reasonable conditions thereto as
it shall deem necessary or desirable to carry out the purposes set
forth in the Village Law, upon the considerations set forth in said
section.
A.
Purpose. The purpose of this section is to provide for the safe provision
of telecommunications consistent with applicable federal and state
regulations, and to protect the natural features and aesthetic character
of the Village.
B.
Authority. The Village Trustees, upon application and after a public
hearing, and upon the recommendation of the Building Department, may
approve, approve with modifications, or disapprove special use permits
and site plans for the development of telecommunications tower sites
in the Village.
C.
Applicability. This section applies to the use, erection, moving,
reconstruction, change or alteration of a structure within the Village
to serve as a telecommunications tower site. Where a provision of
this section conflicts with other provisions of this Code, the more
restrictive shall apply.
D.
ACCESSORY STRUCTURE
ANTENNAS (AND/OR OTHER RECEIVING AND/OR TRANSMITTING DEVICES)
SPECIAL USE
TELECOMMUNICATIONS TOWER AND/OR SITE
Definitions. As used in this section, the following terms shall have
the meanings indicated:
A structure which serves the principal use, is subordinate
in area, extent and purpose to the principal use, and is located on
the same lot as the principal use.
Conductors that receive and/or transmit communications signals.
A use which is deemed allowable within a given zoning district,
but which is potentially incompatible with other uses and, therefore,
is subject to special standards and conditions set forth for such
use, subject to approval by the Building Department.
A structure or combination of structures of a height greater
than 52 feet above grade, which is capable of receiving and/or transmitting
signals, and/or upon which antennas and/or other receiving and/or
transmitting devices are located.
E.
Special use regulations. No use, erection, moving, reconstruction,
change, or alteration of a telecommunications tower site is permitted
prior to the issuance of a special use permit and site plan approval
in conformity with this section.
F.
Special use standards.
(1)
Shared use of existing structures. At all times, shared use
of existing structures shall be preferred to the construction of new
telecommunications tower sites.
(2)
Applicants for shared use (collocation). An applicant for shared
use of an existing structure shall be required to document intent
from the owner or lessee of the existing structure to share use. The
applicant shall ensure that all fees and costs of adapting the existing
structure to a new shared use are paid and that all modifications
required to adapt the existing structure to shared use are performed
in accordance with Building Department regulations and in conformance
with this section.
(3)
Applicants for new construction. An applicant for new construction
of a telecommunications tower site shall be required to identify existing
structures within a one-mile radius of the proposed new site which
are capable of accommodating the applicant's requirements to provide
telecommunications service and shall demonstrate good faith efforts
to secure shared use from the owners or lessees of the existing structures
or that the proposed telecommunications service cannot be installed
or collocated on the existing structures as an alternative to new
construction.
(4)
Future shared use of new telecommunications tower sites. Unless
demonstrated by the applicant to be unfeasible, the construction of
a new telecommunications tower site shall include capacity for future
shared use with other providers of telecommunications services. An
applicant for the construction of new telecommunications tower sites
shall document capacity for future shared use of the proposed site.
(5)
Setbacks. Telecommunications towers shall be set back from abutting
parcels, recorded rights-of-way, and street lines in accordance with
the setback requirements of the zoning district in which the installation
is to be located, or shall be located with a minimum setback from
any property line equal to 1 1/2 times the height of the tower,
whichever is greater. Setbacks shall apply to all parts of the tower,
including guy wire anchors, antennas and/or other receiving and/or
transmitting devices. Accessory structures shall comply with the setback
requirements of the zoning district in which they are located.
(6)
Visibility. All telecommunications towers and accessory structures
shall be sited to have the least practical adverse visual effect on
the environment. Telecommunications towers shall not be artificially
lighted except as required by the Federal Aviation Administration
(FAA). Towers shall be a galvanized finish or painted gray above the
surrounding treeline unless other standards are required by the FAA.
In all cases, guyed towers shall be preferable to freestanding towers.
Towers should be designed and sited as to avoid, whenever possible,
application of FAA lighting and painting requirements. Accessory structures
shall maximize use of building materials, colors and textures designed
to blend with natural surroundings.
(7)
Existing vegetation. Existing on-site vegetation shall be preserved
to the maximum extent possible. No cutting of trees exceeding four
inches in diameter (measured at a height of four feet off the ground)
shall take place prior to the issuance of the special use permit and
plan site approval.
(8)
Screening. The adequate planting of trees or shrubs is required
to screen the base of the telecommunications tower and accessory structures
from nearby property.
(9)
Access. Adequate emergency and service access shall be provided.
Maximum use of existing roads, public or private, shall be made. Road
construction shall, at all times, minimize ground disturbance and
vegetation cutting to within the toe of fill, the top of cuts, or
no more than 10 feet beyond the edge of the pavement. Road grades
shall closely follow natural contours to assure minimal visual disturbances
and reduce soil erosion potential.
(10)
Parking. Parking shall be provided to assure adequate emergency
and service access. The Building Department shall determine the number
of required parking spaces based upon information provided by the
applicant. No parking spaces shall be located in any required yard
or setback area.
(11)
Enclosure. Telecommunications tower sites shall be adequately
secured by a fence or other barrier, unless the applicant demonstrates
that a fence or other barrier is unnecessary to secure the structure.
All fencing or other barrier design is subject to the approval of
the Building Department.
(12)
Advertising. No portion of a telecommunications tower shall
be used for advertising, including, but not limited to, displaying
any name, logo, banner or the like.
(13)
Discontinuance of use; removal. The owner of a telecommunications
tower site shall notify the Village in writing within 30 days of the
discontinuance of use of the tower, antennas and/or other receiving
and/or transmitting devices, and/or accessory structures at the site.
The notice of the discontinuance of use shall be addressed to the
Village Clerk, Malverne Village Hall, 99 Church Street, Malverne,
New York 11565, and shall be sent by certified mail, return receipt
requested. Towers, antennas and/or other receiving and/or transmitting
devices, and/or accessory structures shall be removed from the site
within four months of their discontinued use. Failure to have the
structures removed within four months following their discontinued
use shall subject the owner to a penalty of $100 per day for each
day thereafter in which the structure has not been removed, in addition
to the actual cost of any repair or clean-up of the site which the
Village may be required to undertake in order to ensure the public
safety.
G.
Security. The applicant, owner and/or lessee of the telecommunications
tower site shall be required to execute and file with the Village
Clerk, with a copy to the Village Attorney, a performance bond, or
other security, acceptable to the Village Attorney as to form and
manner of execution, in an amount sufficient for the faithful performance
of the terms and conditions of this section, the conditions of the
permit or the approval issued hereunder, for the observation of all
Village laws and/or ordinances, to cover the maintenance of the telecommunications
tower site during the period of its use, and/or to cover the cost
of its removal upon the discontinuance of its use. The amount required
shall be determined by the Board of Trustees upon the recommendation
of the Building Department. In the event of default in any of the
provisions of this section by the applicant, owner, and/or lessee
of the telecommunications tower site, the performance bond, or other
security, shall be forfeited to the Village, which shall be entitled
to maintain an action thereon. The performance bond, or other security,
shall remain in full force and effect until the removal of the telecommunications
tower and all accessory structures thereto pursuant to this section.
The owner and/or lessee of the telecommunications tower site shall
certify annually, in writing, to the Village Clerk, with a copy to
the Village Attorney, that the performance bond, or other security,
is in full force and effect.
H.
General public liability insurance. Upon issuance of the special
permit and site plan approval, the applicant, owner and/or lessee
of the telecommunications tower site shall obtain a policy of general
public liability insurance in an amount (per occurrence) to be determined
by the Village Board of Trustees, from a company licensed as an insurer
in the State of New York, naming the Village as an additional insured
under the policy. Such insurance coverage shall be maintained until
such time as the telecommunications tower has been removed pursuant
to this section.
I.
General indemnification. In addition to and distinct from the insurance
and security requirements of this section, the applicant, owner and/or
lessee of the telecommunications tower site shall be required to defend,
indemnify and hold the Village, its elected and appointed officials,
its agents and/or employees harmless from and against all damages,
losses and expenses arising out of or resulting from, or alleged to
arise out of or result from, the acts, omissions, failure to act or
misconduct of the applicant, owner, and/or lessee of the telecommunications
tower site, or its/their affiliates, officers, employees, agents,
contractors or subcontractors, in the construction, operation, maintenance,
or repair or removal of the telecommunications tower or any accessory
structures thereto and/or in providing or offering services through
such telecommunications tower or any accessory structures thereto
and/or in providing or offering services through such telecommunications
facility, whether such acts or omissions are authorized or prohibited
by this section or by lease or other agreement entered into pursuant
to this section.
J.
Authority to impose other conditions. The Board of Trustees shall
have the authority to impose such other reasonable conditions and
restrictions as are directly related and incidental to the proposed
telecommunications tower special use or site plan.
K.
Special use permits and site plan approval. Applications for special
use permits and site plan approval to develop telecommunications tower
sites shall be made in writing in accordance with instructions provided
by the Building Department.
L.
Notice. At least 30 days prior to the public hearing on the application
for the proposed development of the telecommunications tower site,
the applicant shall send notice of the time, date, location and purpose
of the hearing, by United States mail or equivalent means, individually
to the property owners on the tax rolls of the Village (or on an official
registry of a locality adjacent to the Village) whose property is
located within 500 feet of the proposed or existing tower site, and
shall cause such notice to be published once a week for four consecutive
weeks in a newspaper of general circulation and in the official newspaper
designated by the Village.
M.
Decision of the Board of Trustees. The decision of the Village Board
of Trustees to approve, approve with modifications, or disapprove
special use permits and site plans for the development of telecommunications
tower sites in the Village shall be filed immediately with the Village
Clerk.
N.
Severability. If any clause, sentence, paragraph, section, or part
of this section shall be adjudged by any court of competent jurisdiction
to be invalid, such judgment shall not affect, impair or invalidate
the remainder thereof, but shall be confined in its operation to the
clause, sentence, paragraph, section, or part thereof directly involved
in the controversy in which judgment shall have been rendered.
In any district where a two-family dwelling is a permitted use,
a two-family dwelling may be maintained or constructed, provided:
[Added 12-6-2023 by L.L. No. 4-2023]
A.
A rental
dwelling or dwelling unit occupied by persons other than the owner
or a family member of the owner and for which rent is received by
the owner, directly or indirectly, in exchange for such rental occupation
for a period of less than 28 nights. For the purposes of this chapter,
the term "transient rental property" shall mean all non-owner-occupied
dwelling units rented for a period of less than 28 nights and shall
not include:
(1)
Properties used exclusively for nonresidential commercial purposes
in any zoning district; or
(2)
Any legally operating hotel/motel business operating exclusively
and catering to transient clientele; that is, customers who customarily
reside at these establishments for short durations for the purpose
of vacationing, travel, business, recreational activities, conventions,
emergencies and other activities that are customary to a commercial
hotel/motel business.
B.
Presumption
of dwelling unit as transient rental property.
C.
No
property located in the Residence A, Residence B, Residence C, and
Residence D Districts shall be occupied, used, rented and/or leased
as transient rental property.
D.
It
is illegal to advertise a transient rental property within the Incorporated
Village of Malverne.
