A. 
The Town of Delaware Planning Board is, pursuant to § 274-b of the New York State Town Law, authorized to approve, disapprove or approve with conditions the establishment of certain uses which shall, throughout this chapter, be identified as special uses. Special uses shall be those uses enumerated on the Schedule of District Regulations set forth in § 220-9[1] and any other applicable sections of this chapter. In addition, the following uses shall also be considered special uses:
(1) 
Any use involving the initial or cumulative disturbance of 43,560 or more square feet of soil surface area.
(2) 
Any use involving the initial or cumulative construction, installation and/or placement of 21,780 square feet or more of buildings, structures or other impervious surface areas.
[1]
Editor's Note: The Schedule of District Regulations is included as an attachment to this chapter.
B. 
Site plan review shall also be required for all special uses and such other uses as may be specified in this chapter. The Town of Delaware Planning Board is, pursuant to § 274-a of the New York State Town Law, authorized to review and approve, approve with modifications, or disapprove site plans as submitted to the Town in accord with this chapter.
C. 
Expansions or additions to uses classified as special uses in the PUD shall be governed by § 220-38B(1) of this chapter. In all other districts, the following shall be considered special uses:
(1) 
Expansions or additions to uses classified as special uses involving an increase of more than 25% of the floor area or lot area devoted to the use, as measured cumulatively, from the effective date of this provision.
(2) 
Expansions or additions to uses classified as special uses involving an expansion or addition of more than 1,000 square feet of floor area or lot area devoted to the use, as measured cumulatively, from the effective date of this provision.
(3) 
The addition of any dwelling unit.
(4) 
The addition of a new use.
(5) 
The expansion or addition to the following uses: adult businesses, airports, bulk fuel storage facilities, junkyards, natural resource uses, natural resources processing, and solid waste disposal facilities, including storage of trucks or containers.
D. 
The addition of an accessory structure shall not be considered a special use.
A. 
Conditions. Should the Planning Board approve a special use/site plan, the Planning Board may impose such reasonable conditions and restrictions as are directly related to and incidental to the special use/site plan. Upon the approval of any special use/site plan, any conditions imposed by the Planning Board must be met in connection with the issuance of permits by applicable enforcement agents or officers of the Town. The violation of any conditions of approval imposed on a special use/site plan shall be considered a violation of this chapter and shall be subject to the penalties therefor.
B. 
Expiration. Any special use and site plan approval granted by the Planning Board shall expire one year from the date such approval was granted if no building construction as approved has taken place or the use is not otherwise established as a functional and constructive activity prior to the expiration date. In the case of special uses and site plans approved prior to the effective date of this provision, the twelve-month expiration period shall begin on the effective date of this provision. Upon such one-year expiration, the said approval and any permit issued subsequent thereto shall be deemed null and void, and the developer shall be required to submit another application for the same. The Planning Board as the case may be, however, may grant an extension of the time limitations for good cause.
No zoning permit shall be issued for any structure covered by this Article VIII until an approved special use/site plan or approved amendment of any such special use/site plan has been secured by the applicant and presented to the Building Inspector. Compliance with the New York State Uniform Fire Prevention and Building Code shall be determined by the Town Building Inspector at the time of building permit application. No certificate of use shall be issued for any structure or use of land covered by this Article VIII unless the structure is completed or the land is developed or used in accord with an approved special use/site plan or approved amendment of any such special use/site plan.
The Planning Board, pursuant to § 274-a and § 274-b of the New York State Town Law, is authorized to, when reasonable, waive any preestablished requirements for the approval, approval with modification or disapproval of a special use/site plan submitted to the Board.
A. 
Justification. A waiver may be granted in the event any such requirement(s) is found not to be requisite in the interest of the public health, safety or general welfare or inappropriate to a particular special use/site plan application. However, the granting of a waiver shall not have the effect of making null and void the intent and purpose of this chapter.
B. 
Procedure. All requests for waivers shall be in writing, shall accompany and be a part of the special use/site plan application, and shall include:
(1) 
The specific section(s) of this chapter in question.
(2) 
Justification for the waiver, including the full grounds and facts of unreasonableness or hardship.
C. 
Action. If the Planning Board denies the request, the applicant shall be notified, in writing, of the reasons for denial. If the Planning Board grants the request, the final special use/site plan shall include a note which identifies the waiver as granted. In any case, the Planning Board shall keep a written record of all actions on all requests for waivers.
The Planning Board, in taking action on a special use/site plan application, shall first determine compliance with the standards and criteria in this § 220-47 and the other applicable requirements of this chapter, and no use specified as a special use by this chapter shall be approved unless the proposed use complies with the said requirements.
A. 
Master Plan. The proposed use shall be in harmony with purposes, goals, objectives and standards of the Town of Delaware Master Plan and this chapter.
B. 
Location. The proposed use in the proposed location shall not result in either a detrimental overconcentration of a particular use within the Town or within the immediate area. The location chosen shall not be one demonstratively better suited or likely to be needed for uses which are permitted as a matter of right in the district. The Board shall, in making its decision, also evaluate the degree to which the proposed location may be particularly suitable or unsuitable for the proposed use in light of other potential sites in the immediate area, including those which might exist in adjacent communities.
C. 
Adverse effects. The proposed use at the proposed location shall not result in a substantial or undue adverse effect on adjacent property, the character of the neighborhood, traffic conditions, parking, public improvements, public sites or rights-of-way, or other matters affecting the public health, safety and general welfare, either as they now exist or as they may in the future be developed as a result of the implementation of the Master Plan and this chapter.
D. 
Facilities, services and improvements. The proposed use shall not impose an undue burden on any of the improvements, facilities, utilities and services of the Town, whether such services are provided by the Town or some other agency. The applicant shall be wholly responsible for providing such improvements, facilities, utilities or services as may be required to adequately serve the proposed use when the same are not available or adequate to service the proposed use in the proposed location. As part of the application and as a condition to any approval of the proposed special use/site plan, the applicant shall be responsible for establishing ability, willingness and binding commitment to provide such improvements, facilities, utilities and services in sufficient time and in a manner consistent with this and other regulations of the Town of Delaware. Any approval shall be so conditioned.
E. 
Additional standards and conditions of approval. No application for issuance of a special use/site plan permit shall be approved unless the Planning Board shall find that, in addition to complying with each of the standards enumerated above, any of the applicable standards of the law shall be met. In instances where the standards contained herein do not adequately protect the general health, safety and welfare of parties affected, the Board shall be obligated to impose such conditions in issuance of a permit. Conditions which might be imposed shall include (but not be limited to) provisions for additional parking, traffic control, submission of landscaping plans, setbacks, special measures addressing sales period activities, limiting the approval to the permittee and not the property, and other measures which can be effectuated to remove any potential adverse influence the use may have on adjoining uses. In reviewing a special use/site plan application and determining what conditions, if any, shall be attached should approval be granted, the Planning Board may consider:
(1) 
Location, arrangement, size, design and general site compatibility of buildings (including architectural design), lighting and signs.
(2) 
Adequacy and arrangement of vehicular traffic access and circulation, including intersections, road widths, pavement surfaces, dividers and traffic controls.
(3) 
Location, arrangement, appearance and sufficiency of off-street parking and loading.
(4) 
Adequacy and arrangement of pedestrian traffic access and circulation, walkway structures, control of intersections with vehicular traffic and overall pedestrian convenience.
(5) 
Adequacy of stormwater and drainage facilities.
(6) 
Adequacy of water supply and sewage disposal facilities.
(7) 
Adequacy, type and arrangement of trees, shrubs and other landscaping constituting a visual and/or noise buffer between the applicant's and adjoining lands, including the maximum retention of existing vegetation.
(8) 
Adequacy of fire lanes and other emergency zones and the provision of fire protection facilities.
(9) 
Special attention to the adequacy and impact of structures, roadways and landscaping in areas with susceptibility to ponding, flooding and/or erosion.
(10) 
The potential for the creation of nuisances, such as, but not limited to, noise, vibration, odor and glare.
(11) 
The effect on the value and future development of neighboring properties.
(12) 
Such other factors as may reasonably be related to the health, safety and general welfare of the community.
F. 
Burden of proof. The burden of proof shall remain with the applicant to show compliance with all standards, and the burden shall never shift to the Town.
The following procedures shall apply to special use/site plan applications:
A. 
Sketch plan. A sketch plan conference may be held between the Planning Board and the applicant prior to the preparation and submission of a formal application. The intent of such a conference is to enable the applicant to inform the Planning Board of his proposal prior to the preparation of a detailed plan and for the Planning Board to review the basic site design concept, advise the applicant as to potential problems and concerns, and to generally determine the information to be required on the plan. In order to accomplish these objectives, the applicant should provide the following:
(1) 
A statement and rough sketch showing the locations and dimensions of principal and accessory structures, proposed vehicle access and parking, and other planned features; anticipated changes in the existing topography and natural features; and where applicable, measures and features to comply with flood hazard and flood insurance regulations;
(2) 
A sketch or map of the area which clearly shows the location of the site with respect to nearby street rights-of-way, properties, easements and other pertinent features; and
(3) 
A topographic or contour map of appropriate scale (one inch equals 200 feet or less) and detail to show site topography with contour intervals of no less than 20 feet each.
B. 
Applications. The Planning Board shall, for purposes of agenda preparation and project evaluation, be authorized, although not required, to reject any application not filed with the Building Inspector at least eight calendar days prior to the meeting at which action is requested. The Planning Board may, from time to time and by resolution, adjust this time period to meet its needs, provided that such period shall not be more than 20 calendar days.
C. 
Information required.
(1) 
For applications involving the construction of buildings, structures or additions to buildings or structures, all information contained in this § 220-48C shall, in general, be provided by the applicant. However, when the Planning Board determines that all such information is not required or when the application is for a change in use not involving construction of a building, structure or addition thereto, the Planning Board shall establish which information shall be submitted by the applicant. In any case, the Planning Board shall have the right to require any or all information in the checklist or any other information deemed necessary by the Planning Board to determine compliance with this chapter.
(2) 
The site plan shall be prepared by a licensed surveyor, professional engineer, architect or landscape architect and shall be drawn in such reasonable detail and scale as deemed necessary by the Board to determine compliance with this chapter.
(3) 
Information required.
(a) 
Title of drawing, including name and address of applicant and person responsible for preparation of such drawing;
(b) 
North arrow, scale and date;
(c) 
Boundaries of the property plotted to scale;
(d) 
Existing watercourses;
(e) 
Grading and drainage plan, showing existing and proposed contours;
(f) 
Location, design, type of construction, proposed use and exterior dimensions of all buildings;
(g) 
Location, design and type of construction of all parking and truck loading areas, showing access and egress;
(h) 
Provision for pedestrian access;
(i) 
Location of outdoor storage, if any;
(j) 
Location, design and construction materials for all existing or proposed site improvements, including drains, culverts, retaining walls and fences;
(k) 
Description of the method of sewage disposal and location, design and construction materials of such facilities;
(l) 
Description of method of securing public water and location, design and construction materials of such facilities;
(m) 
Location of fire and other emergency zones, including the location of fire hydrants and type of fire prevention controls;
(n) 
Location, design and construction of materials of all energy distribution facilities, including electrical, gas and solar energy;
(o) 
Location, size, design and type of construction of all proposed signs;
(p) 
Location and proposed development of all buffer areas, including existing vegetative cover;
(q) 
Location and design of outdoor lighting facilities;
(r) 
Identification of the location and amount of building area proposed for retail sales or similar commercial activity;
(s) 
General landscaping plan and planting schedule; and
(t) 
An estimated project construction schedule.
D. 
Referral to other agencies.
(1) 
Other agencies. The Planning Board may refer any special use/site plan application for review and comment to any local, county, state or federal agency.
(2) 
County Planning Department. Prior to taking final action on the special use/site plan application, the Planning Board shall refer the plan to the Sullivan County Department of Planning and Economic Development in accord with § 239-m of the New York State General Municipal Law and shall comply with all applicable provisions of the said § 239-m.
E. 
State Environmental Quality Review Act. The applicant shall submit all documentation necessary to demonstrate compliance with the New York State Environmental Quality Review Act, and the Planning Board shall take all required actions relative to the same prior to acting on the special use/site plan.
F. 
Agricultural data statement. The application shall include an agricultural data statement as required by § 283-a of the New York State Town Law in cases where the proposal involves property within an agricultural district containing a farming operation or involves property with boundaries within 500 feet of a farm operation located in an agricultural district. Agricultural districts are such districts designated in accord with the New York State Agriculture and Markets Law Article 25-AA, Agricultural Districts Law, as amended. If the proposal does not meet the criteria requiring an agricultural data statement, the applicant shall provide a certification to such effect. Agricultural data statements shall be submitted by the applicant on the form provided by the Planning Board and shall be processed in accord with § 283-a of the New York State Town Law.
G. 
Public hearing. The Planning Board shall conduct a public hearing on a special use/site plan application, and the said hearing shall be conducted within 62 days of the date that the application is received for review by the Planning Board.
H. 
Hearing notice.
(1) 
Newspaper. Public notice of the hearing required in § 220-47E of this chapter shall be printed in a newspaper of general circulation in the Town at least five days prior to the date of the hearing.
(2) 
Applicant and county. At least 10 days before the hearing required in § 220-47E of this chapter, the Planning Board shall mail notices thereof to the applicant and to the Sullivan County Department of Planning and Economic Development, as required by § 239-m of the New York State General Municipal Law, which notice shall be accompanied by a full statement of the special use/site plan application.
(3) 
Notice to adjacent property owners. Notices of special use application hearings shall be provided by the applicant to all adjacent property owners as identified in the latest tax assessment records of the Town of Delaware, including those for properties on the opposite side of any public or private road. Such notice shall be given by certified mail at least seven calendar days in advance of such hearing. The Planning Board shall be authorized to waive this requirement in the case of applications limited to site plan review or where it is determined by the Board that adjoiners have otherwise been afforded reasonable notice of such hearing as evidenced by their appearance at or knowledge of such hearing. No hearing shall be delayed where the Board determines the applicant has made reasonable attempts to notify all interested parties as provided herein.
I. 
Decision. The Planning Board shall render a decision on the special use/site plan within 62 days of the date of the hearing required in § 220-48G of this chapter. The decision of the Planning Board shall be immediately filed in the office of the Town Clerk, but in no case beyond five business days after the day such decision is rendered, and a copy thereof mailed to the applicant.[1]
(1) 
Approval. Upon approval of the special use/site plan and payment by the applicant of all fees and reimbursable costs due to the Town, the Planning Board shall endorse its approval on a copy of the special use/site plan and shall forward a copy to the applicant and the Town Clerk along with the notice required by this section.
(2) 
Approval with modifications and/or conditions. Upon approval of the special use/site plan with modifications and/or conditions, the notice required by this section shall include, in writing, a statement of the modifications required and any conditions imposed by the Planning Board. The Planning Board may authorize the Board Chairman to endorse the Board's approval on the special use/site plan when all required modifications have been made and all conditions imposed are satisfied. Upon such endorsement, a copy shall be forwarded to the applicant and the Town Clerk.
(3) 
Disapproval. Upon disapproval of the special use/site plan, the notice required by this section shall include, in writing, the reasons for the disapproval.
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
J. 
Extension of time to render decision. The time within which the Planning Board must render its decision may be extended by mutual consent of the applicant and the Planning Board.
No certificate of occupancy shall be issued for any building, structure or use until all improvements shown on the special use/site plan are installed or a sufficient performance guarantee has been posted with the Town Board for improvements not yet completed.
A. 
Form and content of guarantee. The form and term of the guarantee and schedule for completion of the improvements shall be approved by the Town Board after consultation with the Town Attorney and the Town Engineer.
B. 
Amount and term of guarantee. The sufficiency of the amount of such performance guarantee, based on an estimate prepared by the applicant's engineer, shall be determined by the Town Board after consultations with the Town Attorney, the Town Engineer and other appropriate parties. The amount shall be adequate to complete the required improvements plus expected cost increases over the term of the guarantee. The guarantee shall specify a completion date for the improvements, which shall not be more than three years from the date of special use/site plan approval.
C. 
Release of guarantee. When the improvements have been completed and approved by the Town Engineer or other qualified individual designated by the Town Board, the guarantee shall be released by the Town Board. The Town Board may approve partial releases of the guarantee for any portion of the improvements completed and approved in accord with this § 220-49.
D. 
Failure to complete improvements. In the event that any required improvements have not been installed as required by this chapter or within the terms of the guarantee, the Town Board may declare such guarantee to be in default and collect the sum remaining payable thereunder and install such improvements as are covered by the guarantee and which are commensurate with the extent of the development that has occurred, but not exceeding in cost the amount of such proceeds.
E. 
Inspections. Prior to initiating the installation of any improvements, the applicant shall meet with the Town Engineer to develop a schedule to assure that at the time each improvement is to be installed, and upon its completion, adequate inspections are conducted to confirm that all improvements are installed in accord with the approved plans.
Costs incurred by the Planning Board and the Town Board in connection with any special use/site plan for consultation fees or other expenses in connection with the review of plans, inspections of improvements, guarantee approval or any other costs shall be charged to the applicant.