Article XXIV Board of Zoning and Appeals

In the consideration and determination of applications for conditional uses or special permits, the Board of Zoning and Appeals shall consider the following general standards as applied to the specific application:

The purposes of zoning as set forth in the Town Law of the State of New York and uses permitted in the district in which the property is located.

Whether the proposed use is of such character, size, location, design and site layout as to be appropriate to and in harmony with the surrounding properties.

(c)

Whether the proposed use will provide a desirable service, facility or convenience to the area or otherwise contribute to the proper growth and development of the community and to its general welfare.

(d)

Whether the proposed use will be hazardous, conflicting or incongruous to the immediate neighborhood by reason of excessive traffic, assembly of persons or vehicles, proximity to travel routes or congregations of children or pedestrians.

(e)

Whether the proposed use will be of such nature as to be objectionable to nearby residential dwellings by reason of noise, lights, vibration or other factors of impact.

(f)

Whether the proposed use will be a harmonious use in the district in which it is to be situated and not hinder or discourage the appropriate use and development of adjacent uses or impair the value thereof.

(g)

In addition to the foregoing, the location and size of a proposed use in a business or industrial district, the nature and intensity of the operations proposed, the site layout and its relation to access streets shall be considered by the board having jurisdiction of the application to determine whether the vehicular traffic resulting from such use will be more hazardous than the normal traffic of the district, taking into account such factors as street intersection, traffic flow, sight distances and pedestrian traffic.

If the Board of Zoning and Appeals shall determine that the conditional uses provided in this chapter or a proposed special use will conform to the general character of the neighborhood to which the proposed use will apply and that the public health, morals, safety and general welfare of such neighborhood will be secure by the granting of such use, subject to the safeguards imposed by the Board, then the Board of Zoning and Appeals shall authorize the issuance of a permit pursuant to § 70-225 of this article. Such permits may be granted for a temporary period or permanently, as determined by the Board, and, if granted for a temporary period, application for extension of same will be subject to a public hearing as required in the original application.

Before an application for a conditional or special use may be heard by the Board of Zoning and Appeals, a complete and accurate list of the names and addresses of the owners of all the lands within a radius of 300 feet of the property affected by such application as appears on the latest completed assessment roll of the County of Nassau shall be submitted simultaneously with the application. The applicant shall send, by first-class mail and by registered or certified mail, to each owner shown on said list, not less than 10 nor more than 20 days before the date set for a hearing upon this application, a notice addressed to such owners generally, signed by the applicant, identifying the property affected thereby and setting forth the use requested and the date, hour and place fixed by the Board of Zoning and Appeals for the hearing thereon. Before such case may be heard by the Board of Zoning and Appeals, the applicant must file with the Clerk of the Board, not later than five days prior to the hearing date, an affidavit of the mailing of such notices as herein provided, said affidavit to be made on forms to be provided by the Board of Zoning and Appeals. This provision shall likewise apply to any application for the extension of a temporary conditional or special use.

[Amended 1-29-2019 by L.L. No. 3-2019]

(4)

If the Board of Zoning and Appeals finds that in an application the conditional use provided in this chapter or special use proposed and requested in said application will not conform to the general character of the neighborhood to which the proposed use will apply and that the public health, morals, safety and general welfare of such neighborhood will not be secured by granting such conditional use, then the Board of Zoning and Appeals shall deny such application, anything in this chapter to the contrary notwithstanding.

(5)

If, upon an application for extension of a conditional or special use, the Board finds that the applicant has violated the conditions imposed in the granting of same or if the Board finds that because of a change in the general character of the neighborhood the public health, safety, morals and general welfare will be adversely affected by the extension of such conditional or special use, then the Board of Zoning and Appeals may deny an application for extension of such conditional or special use, anything in this chapter to the contrary notwithstanding.

(6)

Mother-daughter residences.

Upon an application for a mother-daughter residence, as defined in § 70-231 of this chapter, § 70-225B(3) shall not apply; however, the applicant shall file with the Board the written consents received from, or proof of written notice given to, all owners of property adjoining the property affected by the application.

Any mother-daughter residence legally in existence with a currently valid permit on April 1, 1997, shall be considered to be a legal nonconforming use with respect to any structural improvement in existence on April 1, 1997. Any subsequent structural improvement shall conform to the conditions of a mother-daughter residence, as defined in § 70-231.

(c)

The fee owner of any residence which ceases to be a mother-daughter residence under the conditions listed in § 70-231 shall remove all cooking facilities from the apartment within 90 days of the change. As a condition of granting any application for a conditional use of a mother-daughter residence, the Board of Zoning and Appeals shall require the recording of a covenant to remove cooking facilities as aforesaid.

(7)

Changes to uses requiring conditional use permit; noncompliance.

[Amended 3-20-2018 by L.L. No. 2-2018]

Any restaurant or retail food use must apply to the Board of Zoning and Appeals if any of the following occurs:

An increase in the size of an approved kitchen by 20% of floor area of said kitchen, or 250 square feet, whichever is less, inclusive of prep areas, is proposed.

The addition or removal of counter/kiosk service for the placement of a food order.

Failure to comply with the conditions imposed in the decision of the Board of Zoning and Appeals may result in a revocation of the conditional use permit. In the event that the conditional use permit is revoked, a new conditional use permit application must be made and the appropriate fees paid.

Authorize the issuance of temporary and conditional permits for a period not to exceed two years for structures, buildings and uses in undeveloped sections of the Town, as determined by the Board, in contravention of the requirements of this chapter.

Determine and establish the true location of use district boundaries in any disputed case.

Permit a use authorized on a portion of a lot in a lower restricted district to extend to the entire lot, but not more than 50 feet beyond the boundary line of the higher restricted district in a case where a use district boundary line divides a lot in a single ownership at the effective date of this chapter.

Determine whether or not any trade, industry, purpose or use otherwise permitted by this chapter would violate Article XXII, § 70-203A, and if so, to prohibit such trade, industry or use.

Vary the application of the provisions of this chapter and establish appropriate requirements for irregular lots or lots less than the required area in any district existing at the effective date of this chapter.

Vary the application of the provisions of this chapter and modify the requirements thereof in cases of exceptional topography under such conditions as will safeguard the neighborhood.

Vary any provision of this chapter in cases of practical difficulty or unnecessary hardship, provided public health, safety and general welfare are secured.

In an appeal under which the Board is asked to vary those provisions of this chapter related to the dimension and/or number of parking spaces (e.g., §§ 70-103 and 70-231), the Board shall decide such appeal by applying the "area variance" test set forth in Town Law § 267-b(3).

In addition to the power and duties of the Board as hereinabove set forth, the Board of Zoning and Appeals shall also act in an advisory capacity to the Town Board in reference to changes of zone, and shall study the application of this chapter, recommending to the Town Board from time to time such changes in the chapter and in the boundaries of the various districts as it shall deem advisable to further promote the health, safety, morals and/or general welfare of the community.

The concurring vote of a majority of the members of the Board shall be necessary for a decision.

Wherever in this chapter reference is made to the Planning Board or Board of Appeals, said reference shall for the purpose of the ordinance be deemed to refer to the Board of Zoning and Appeals as established by the Town Board under the date of May 1, 1952.

Review a decision of the Building Commissioner to deny a request for a tree removal permit. In reviewing such decision, the Board of Zoning and Appeals shall be guided by the criteria established in § 2-9T(4).

Each member of the Board of Appeals and of the Town Board shall complete four hours of training each year, designed to enable such members to more effectively carry out their duties. Training received by a member in excess of four hours in any one year may be carried over by the member into succeeding years in order to meet the requirements of this subsection. Such training shall be approved by the Commissioner of Planning, as an authorized representative of the Town Board. Training may include, but not be limited to, training provided by a municipality, regional or county planning office or commission, county planning federation, state agency, statewide municipal association, educational or other similar entity. Training may be provided in a variety of formats, including, but not limited to, electronic media, video, distance learning and traditional classroom training.

With respect to members of the Board of Zoning and Appeals, in order to be eligible for reappointment to such board, such members shall have completed the training required by the Town pursuant to this subsection.

Board members shall provide adequate proof of such training to the Commissioner of Planning upon completion of same.

The training required by this subsection may be waived or modified by resolution of the Town Board when, in the judgment of the Town Board, it is in the best interest of the Town to do so.

(4)

No decision of the Board of Zoning and Appeals or of the Town Board shall be voided or declared invalid because of a failure to comply with this subsection.

(5)

The training requirements imposed by this subsection shall become effective for the calendar year 2008, as the Town Board deems it in the best interests of the Town to impose such requirement at such time.

§ 70-226 (Reserved) [1]

§ 70-227 Rules; fees and costs; submission requirements; hearing notice requirements.

Editor’s Note: Former § 70-226, Lapse of variance; requests for variance extension, was repealed 2-28-2019 by L.L. No. 5-2019.

§ 70-226.1 When effective.

[Added 3-12-2013 by L.L. No. 1-2013]

This article shall take effect immediately.

[Amended 5-29-2007 by L.L. No. 5-2007; 1-29-2019 by L.L. No. 3-2019; 11-19-2019 by L.L. No. 15-2019; 8-5-2021 by L.L. No. 16-2021; 2-11-2025 by L.L. No. 2-2025]

The Board of Zoning and Appeals shall establish rules as to the manner of filing appeals or applications for permits or variances in specific cases and may amend these rules as needed. Copies of the procedures and requirements for the filing of applications shall be maintained by the Board and shall be made available to the public.

Fees and costs. Fees for all matters to be heard by the Board of Zoning and Appeals shall be set according to the amounts indicated in the Town of North Hempstead Fee Schedule.

Submission requirements.

All applications to the Board of Zoning and Appeals shall be accompanied by the notice of disapproval issued by the Building Department, an application form with related attachments and four copies each of the following:

For applications for new one- and two-family residential structures:

Title page, which shall include the following:

Key map showing clearly and accurately the location of the property in relation to the neighboring streets;

Zoning/Site data analysis which shall include zoning district; permitted and proposed data for all zoning criteria, including, but not limited to, floor areas, lot coverage, building height, and a depiction of the required sky exposure plane;

Name and address of the applicant, and the name and address of the owner of the site, if different from the applicant;

Name(s) and contact information of the professional engineer, land surveyor, architect, landscape architect and/or land planner involved in preparing the plans;

Area map of the subject property and all properties within a radius of 300 feet of any contiguous property owned by the applicant. The area map must be accurately drawn to scale and shall include the names of property owners, as well as section, block, and lot information for all properties within the three-hundred-foot radius;

Survey of existing conditions, prepared by a New York State licensed land surveyor at a scale of one inch equals 40 feet or larger, showing at a minimum:

The locations of all existing buildings, driveways, patios, fences and accessory structures;

The locations of property lines with bearings and distances clearly marked;

The locations of all monuments, stakes or other permanent boundary markers;

Underground and overhead utilities;

The locations of all easements, if applicable;

Proposed site or plot plan, showing the location of all proposed buildings, accessory structures, driveways or other paved areas;

Floor plans, fully dimensioned, of each level, which shall include, but not be limited to, basements, cellars, mezzanines and attics, and labeling of all interior spaces with their uses;

Building elevations and section, which shall include the following:

Existing and proposed grades in Nassau County Vertical Datum;

Finished floor elevations for each level;

Building height elevation(s);

Building/site section(s);

Proposed finish materials for all exterior surfaces;

Short environmental assessment form;

Disclosure affidavit from applicant;

For additions or alterations of one- and two-family residential structures or construction of fences, sheds or other accessory structures:

Title page, which shall include the following:

Key map showing clearly and accurately the location of the property in relation to the neighboring streets;

Name and address of the applicant, and the name and address of the owner of the site, if different from the applicant;

Name(s) and contact information of the professional engineer, land surveyor, architect, landscape architect and/or land planner involved in preparing the plans.

Survey or plot plan of existing conditions, prepared by a New York State licensed land surveyor at a scale of one inch equals 40 feet or larger, showing at a minimum the locations of all existing buildings, driveways, patios, fences and accessory structures;

Proposed site plan, showing the location of all proposed buildings, fences, accessory structures, driveways or other paved areas;

Floor plans, fully dimensioned, of each level, which shall include, but not be limited to, basements, cellars, mezzanines and attics, and labeling of all interior spaces with their uses;

Building elevations, if applicable, which shall include the following:

Existing and proposed grades;

Finished floor elevations for each level;

Building height elevation(s);

Proposed finish materials for all exterior surfaces.

Details or specifications of any fencing material, if applicable.

(c)

For applications for new multiple residence, commercial or other nonresidential structures:

Title page, which shall include the following:

Key map showing clearly and accurately the location of the property in relation to the neighboring streets;

Zoning/Site data analysis which shall include zoning district information; permitted and proposed data for all zoning criteria, including, but not limited to, floor areas by use, lot coverage, building height, parking; and the quantities of pervious and impervious surfaces. All zoning calculations shall be based on gross floor area as required in this chapter;

Names of the appropriate water and sewer districts;

Name and address of the applicant, and the name and address of the owner of the site, if different from the applicant. If the applicant or owner is a corporation or partnership, the names of all principals shall be included;

Name(s) and contact information of the professional engineer, land surveyor, architect, landscape architect and/or land planner involved in preparing the plans;

Area map of the subject site and all properties within a radius of 300 feet of any contiguous property owned by the applicant. The area map must be accurately drawn to scale and shall include all proposed principal and accessory buildings, the names of abutting property owners, as well as section, block, and lot information for all properties within the three-hundred-foot radius.

Survey of existing conditions, prepared by a New York State licensed land surveyor at a scale of one inch equals 40 feet or larger, showing at a minimum:

The locations of all existing buildings, driveways, patios, fences and accessory structures;

The locations of property lines, with bearings and distances clearly marked;

The locations of all monuments, stakes or other permanent boundary markers;

Underground and overhead utilities;

The locations of all easements, if applicable.

Schematic site plan, which shall include the following:

Location and arrangement of all buildings and structures;

All proposed parking and loading facilities, access aisles, and all pavement markings, fully dimensioned;

Adjacent roadways indicating traffic flow directions and showing vehicular access and circulation to and from the site, including intersections, road widths, pavement surfaces, dividers, traffic controls, and street lighting;

Any proposed right-of-way improvements or road widening;

Arrangement of pedestrian traffic access and circulation, including, but not limited to, walkway structures, and handicapped accessibility;

Location and type of equipment provided for storage and disposal of garbage and refuse; if the application is for a restaurant, delicatessen, retail grocery or other food-related use, the plan must show the location of the required interior refrigerated refuse locker.

Floor plans, fully dimensioned, of each level, which shall include, but not be limited to, basements, cellars, lobbies, mezzanines and attics, and labeling of all interior spaces with their uses; seating diagrams and emergency egress plans are required for all places of public assembly;

Building elevations and sections, which shall include the following:

Existing and proposed grades in Nassau County Vertical Datum;

Finished floor elevations for each level;

Building height elevation(s);

Building/Site section(s) as required to adequately analyze the site development;

Proposed finish materials for all exterior surfaces;

Scale drawings indicating the design, color and material of all signs, accompanied by an explanation of the lighting mechanism.

Perspective drawing(s) of all principal buildings;

Schematic landscape, grading, drainage and lighting plans;

[8]

Full environmental assessment form in the format required by the State Environmental Quality Review Act;

[9]

Traffic and parking analysis, including capacity and level-of-service for the nearest signalized intersection(s) to be submitted to the office of the Board of Zoning Appeals no later than the filing deadline of the hearing on which the application is to be heard;

[10]

Disclosure affidavit from applicant.

(d)

For additions or alterations of multiple residence, commercial or other nonresidential structures or variances for nonresidential uses:

Title page, which shall include the following:

Key map showing clearly and accurately the location of the property in relation to the neighboring streets;

Zoning/site data analysis which shall include zoning district information; permitted and proposed data for all zoning criteria, including, but not limited to, floor areas by use, lot coverage, building height, parking; and the quantities of pervious and impervious surfaces. All zoning calculations shall be based on gross floor area as required in this chapter;

Names of the appropriate water and sewer districts;

Name(s) and contact information of the professional engineer, land surveyor, architect, landscape architect and/or land planner involved in preparing the plans;

Area map of the subject site and all properties within a radius of 300 feet of any contiguous property owned by the applicant. The area map must be accurately drawn to scale and shall include the names of property owners, as well as section, block, and lot information for all properties within the three-hundred-foot radius.

Survey of existing conditions showing, at a minimum, the locations of all existing buildings, parking areas and access points;

Schematic site plan, which shall include the following:

Location and arrangement of all buildings and structures;

All proposed parking and loading facilities, access aisles, and all pavement markings, fully dimensioned;

Location and width of landscaped buffers, if applicable;

Floor plans, fully dimensioned, of each level, which shall include, but not be limited to, basements, cellars, lobbies, and mezzanines, and labeling of all interior spaces with their uses; seating diagrams and emergency egress plans are required for all places of public assembly;

Building elevations and sections, which shall include the following:

Finished floor elevations for each level;

Building height elevation(s);

Proposed finish materials for all exterior surfaces;

Scale drawings indicating the design, color and material of all signs, accompanied by an explanation of the lighting mechanism;

Schematic landscape, grading, drainage and lighting plans, if applicable;

Short environmental assessment form;

[8]

A trip generation and parking analysis, to be submitted to the office of the Board of Zoning Appeals no later than the filing deadline of the hearing on which the application is to be heard, including capacity and level-of-service analysis for the nearest signalized intersection(s), except for applications where one or more of the following conditions apply:

A reduction in required parking from previous use or tenant;

An increase of less than two parking spaces from the previous use or tenant;

No variances for parking or loading;

[9]

For applications projected to create 100 or more trips per hour by the most current Institute of Transportation Engineers Trip Generation Manual in the year of the application, a traffic analysis, including capacity and level-of-service for the nearest signalized intersection(s), shall be required and submitted to the office of the Board of Zoning Appeals no later than the filing deadline of the hearing on which the application is to be heard;

[10]

A trip generation and parking analysis, to be submitted to the office of the Board of Zoning Appeals no later than the filing deadline of the hearing on which the application is to be heard, shall be required for all applications involving a variance from § 70-103;

[11]

Disclosure affidavit from applicant.

All plans and accompanying documents shall be prepared by the appropriate professional(s) licensed in the State of New York and shall be prepared at a scale sufficient to clearly present the required information for review.

Applications will not be placed on the Board hearing calendar until all submissions are deemed complete pursuant to the requirements of this Subsection C, except for submissions which may be filed no later than the filing deadline of the hearing on which the application is to be heard.

Hearing notice requirements.

The Secretary to the Board of Zoning and Appeals shall publish notice of the public hearing for a variance, appeal for determination or conditional use permit in the local newspapers at least 10 days before the hearing date. The notice shall identify the property affected by stating the section, block, lot and street address and shall also state the date, time and place of the hearing.

Where an application for a variance, appeal for determination, or conditional use permit is adjourned, the Secretary to the Board of Zoning and Appeals shall publish notice of the new hearing date in the local newspapers at least 10 days before the date of the new hearing. The notice shall identify the property affected by stating the section, block, lot and street address and shall also state the date, time and place of the hearing.

Before the application will be heard, the applicant must provide notice of the hearing to property owners within a radius of 300 feet of the site, in the manner provided herein, and must file an affidavit as to the mailing of such notices in accordance with this section with the Secretary to the Board of Zoning and Appeals not less than five days before the hearing. Not less than 10 nor more than 20 days before the hearing, the applicant shall send, by first-class mail and by registered or certified mail, a notice to each affected owner identifying the subject property, stating the nature of the application and the date, time and place for the hearing. For applications for additions and alterations to one- or two-family residential structures and sign variances, notice may be provided to only the adjoining property owners and the owner of properties directly across the nearest right(s)-of-way.

Where an application for a variance, appeal for determination, or conditional use permit is adjourned, the applicant must notice the new hearing date. For applications for additions and alterations to one- or two-family residential structures, notice may be provided to only the adjoining property owners in the manner provided herein. For all other applications, notice must be provided to property owners within a radius of 300 feet of the site in the manner provided herein. Not less than 10 nor more than 20 days before the hearing, the applicant shall send, via first-class mail, a notice to each affected owner identifying the subject property, stating the nature of the application, and the date, time and place for the hearing. The applicant must file an affidavit as to the mailing of such notices in accordance with this subsection with the Secretary to the Board of Zoning and Appeals not less than five days before the hearing.

Sign notice requirements for Board of Zoning and Appeal applications.

For all commercial applications, with the exception of applications for signs, and for all applications for new homes and for subdivisions, the following requirements shall apply:

Sign notice shall be given by the property owner of the subject property by posting a sign stating the nature of the application, and the time, date, and place of the public hearing to be held by the Board of Zoning and Appeals on the property which is the subject of an application.

The sign shall be posted at least 10 days prior to the date of the public hearing to be held by the Board of Zoning and Appeals.

The sign shall be visible from adjacent rights-of-way, including waterways.

If the subject property is on more than one right-of-way, a sign shall be posted facing each right-of-way.

If the sign is destroyed or removed from the property, the owner of the subject property shall be responsible for replacing it.

The sign shall be no less than 34 inches by 48 inches in size.

Five days prior to the public hearing, the owner of the subject property shall execute and submit to the Secretary to the Board of Zoning and Appeals an affidavit of proof of the posting of the public notice sign(s) according to this section. If the owner of the subject property fails to submit the affidavit, the public hearing will be postponed until after the affidavit has been supplied.

[8]

Section 227D(3)(a) shall apply to all Board of Zoning Appeals applications which have been adjourned.

Abandonment of applications/appeals.

Applications to the BZA in which any portion of the application pertains to the legalization or maintenance of already existing structures or uses shall be deemed abandoned and closed if all required materials pursuant to § 70-227C are not submitted within 180 days of the date the first correspondence is sent by the staff of the Board of Zoning Appeals to the applicant indicating that the application is incomplete.

Adjourned appeals. Appeals which are adjourned at the request of the applicant or due to insufficient mailing or sign posting in accordance with § 70-227D, must be recalendared within 180 days of the originally scheduled hearing date when any portion of the appeal pertains to the legalization or maintenance of already existing structures or uses. Such appeals not scheduled for a hearing within this time frame will be deemed abandoned and closed.

Applicants shall be given no less than 10 days' prior written notice of an intent to deem an application/appeal abandoned, such notice to be delivered to the applicant by electronic mail with delivery and read receipt, or by certified or registered mail. Applicants shall be granted one 180-day extension of time where it has been demonstrated that the delay is caused by factors outside the control of the applicant.

(4)

A stay on appeal from any enforcement action related to an application deemed abandoned and closed pursuant to this section shall be of no further force and effect.

(5)

Application fees will not be refunded for applications that are abandoned and closed. Any unpaid fees shall remain due and payable to the Town.

(6)

Applications or appeals which are deemed abandoned pursuant to this section may be reinstated by the Commissioner of Planning upon written request by the applicant made within 30 days of the date of abandonment and upon a showing of good cause.

Closing of appeals continued for additional information.

The Board reserves the right to close the record and render a decision on any appeal, following notice to the applicant, where the record has been left open at the conclusion of a hearing in order to accept additional information from the applicant, and more than 180 days have elapsed from the date of the hearing without the applicant providing the additional information to the Board. Upon written request of the applicant prior to a decision, the Board shall grant one 180-day extension of time under this subsection.