[Added 1-10-1989 by L.L. No. 1-1989]
The provisions of this article are designed
to provide for administrative review of selected types of proposed
land uses. Certain uses which are allowable under zoning are nevertheless
so likely to significantly affect their surroundings that they require
individual review to assure compatibility with existing land use patterns,
community character and the natural environment before being permitted
to come into existence. Similarly, certain authorized uses may take
on such diverse forms in their actual implementation that it is wise
to review and pass upon the adherence of each individual proposal
to standards and guidelines previously established for the use involved.
Finally, the case-by-case review achieved by use of the special exception
approval mechanism can increase the flexibility and appropriateness
of local development review and better enable local officials to avoid
negative consequences which sometimes arise from the otherwise lawful
development or use of a particular site.
[Amended 11-24-1992 by L.L. No. 22-1992]
There is hereby created a category of land use
approval to be known as "special exception uses." Said uses may not
be commenced, created, undertaken, carried out or thereafter maintained
or substantially expanded without a special exception approval first
having been obtained therefor, which special exception approval shall
be granted for the use by the Zoning Board of Appeals according to
the provisions for the particular special exception use set forth
in this article or elsewhere in this chapter. Any land use, including
the erection, construction, reconstruction, alteration, demolition,
moving, conversion or change of use of any structure, shall be a special
exception use requiring a special exception approval if the text of
this chapter or the use schedule hereof denotes the use as being either
the subject of a special exception approval or simply a special exception
use. No building permit for any such special exception use shall be
issued until the required special exception approval shall have been
granted for the same and the conditions imposed in such approval as
prerequisites to a building permit, if there be any, have been met.
[Amended 4-10-1990 by L.L. No. 4-1990; 12-11-1990 by L.L. No. 29-1990; 6-15-1993 by L.L. No. 10-1993; 9-8-1993 by L.L. No. 19-1993; 1-16-2018 by L.L. No.
1-2018]
A.
An application for a special exception approval shall be on the form for the same provided by the Zoning Board of Appeals and shall be submitted in triplicate to the Zoning Board of Appeals, which shall review the application for completeness and conformity with this chapter. The Zoning Board of Appeals shall reject the application if it is not complete or not in conformance with the Zoning Code and shall notify the applicant as to the reason for such rejection. Upon a determination by the Zoning Board of Appeals that the application is complete, the application shall be scheduled for a public hearing. The fee for a special exception shall be as set forth in § 280-149.
B.
Within 60 days following the close of the public hearing, the Board
shall render a decision on the application.
C.
Effect of approval. A special exception approval issued in accordance
with the provisions of this article shall authorize only the special
exception use for which the approval is granted; provided, however:
(1)
No use which is not a special exception use hereunder shall be authorized
by any such approval;
(2)
The approval may include reasonable conditions which the Zoning Board
of Appeals determines to be necessary or appropriate to ensure that
the applicable general and specific standards and safeguards set forth
in this chapter for the use can and will be met and/or adhered to;
(3)
The Zoning Board of Appeals may condition the permit by requiring
that the applicant actually complete construction and begin the approved
special exception use in compliance with the conditions imposed by
the Zoning Board of Appeals within a time period of from six months
to three years;
(4)
If the Zoning Board of Appeals fails to specify a period to
complete construction and begin the approved special exception use,
the time period to complete construction and begin the approved special
exception use shall be one year;
(5)
An application may be made and the Zoning Board of Appeals may grant, after holding a public hearing in accordance with § 280-150, an extension of the approval of up to one year. A continuing or permanent land use authorized by a special exception approval, which use is undertaken or begun in accordance with the Zoning Board of Appeals approval, shall thereafter be deemed a lawful use as if the same were permitted by this chapter without need for a special exception permit; provided, however, that:
(a)
All conditions imposed by the special exception approval shall
continue to apply unless they, by their express terms, are of limited
duration.
(b)
All conditions imposed on special exception approval uses generally
or specifically by this chapter shall continue to apply, regardless
of whether any such conditions were expressly incorporated into the
special exception approval.
(c)
The Zoning Board of Appeals shall retain continuing jurisdiction
over the same;
(d)
The duration of a special exception use may be limited to a
specified time period as set forth in the approval of the Zoning Board
of Appeals; if the approval is silent as to the duration of the special
exception use, then said use shall be in perpetuity;
(e)
A special exception use which has been discontinued for a period
of one year or more shall be deemed abandoned.
D.
Violations of conditions. A violation of any limitation or condition
of a special exception approval or of any provision of this chapter
applicable to a special exception use shall constitute a violation
of this chapter. The Zoning Board of Appeals shall retain jurisdiction
and shall have the right, after a public hearing, to modify, suspend
or revoke such approval or any term or condition thereof or to impose
thereon one or more new conditions, all on the following grounds:
(1)
False statements or mistake of material fact: materially false or
inaccurate statements in the application, supporting papers or supporting
testimony or ignorance or misunderstanding of a material fact by the
Board, which fact, had it been known to the Board at the time of its
review, would have resulted in a denial of the approval sought.
(2)
Noncompliance with the terms and conditions of such approval: failure
of the applicant-permittee to comply with any conditions or terms
of the approval.
(3)
Activity beyond such approval: exceeding the scope of the activity,
use or project as the same was described in the application.
[Amended 6-15-1993 by L.L. No. 10-1993]
No special exception approval shall be granted
unless the Zoning Board of Appeals specifically finds and determines
the following:
A.
That the use will not prevent the orderly and reasonable
use of adjacent properties or of properties in adjacent use districts.
B.
That the use will not prevent the orderly and reasonable
use of permitted or legally established uses in the district wherein
the proposed use is to be located or of permitted or legally established
uses in adjacent use districts.
C.
That the safety, the health, the welfare, the comfort,
the convenience or the order of the Town will not be adversely affected
by the proposed use and its location.
D.
That the use will be in harmony with and promote the
general purposes and intent of this chapter.
E.
That the use will be compatible with its surroundings
and with the character of the neighborhood and of the community in
general, particularly with regard to visibility, scale and overall
appearance.
F.
That all proposed structures, equipment and material
shall be readily accessible for fire and police protection.
In making such determination, consideration
shall also be given, among other things, to:
A.
The character of the existing and probable development
of uses in the district and the peculiar suitability of such district
for the location of any of such permitted uses.
B.
The conservation of property values and the encouragement
of the most appropriate uses of land.
C.
The effect that the location of the proposed use and
the location that entrances and exits may have upon the creation or
undue increase of vehicular traffic congestion on public streets,
highways or sidewalks to assure the public safety.
D.
The availability of adequate and proper public or
private water supply and facilities for the treatment, removal or
discharge of sewage, refuse or other effluent (whether liquid, solid,
gaseous or otherwise) that may be caused or created by or as a result
of the use.
E.
Whether the use or the materials incidental thereto
or produced thereby may give off obnoxious gases, odors, smoke or
soot.
F.
Whether the use will cause disturbing emissions of
electrical discharges, dust, light, vibration or noise.
G.
Whether the operation in pursuance of the use will
cause undue interference with the orderly enjoyment by the public
of parking or of recreational facilities, if existing or if proposed
by the Town or by other competent governmental agencies.
H.
The necessity for bituminous-surfaced space for purposes
of off-street parking of vehicles incidental to the use and whether
such space is reasonably adequate and appropriate and can be furnished
by the owner of the plot sought to be used within or adjacent to the
plot wherein the use shall be located.
I.
Whether a hazard to life, limb or property because
of fire, flood, erosion or panic may be created by reason of or as
a result of the use or by the structures to be used therefor or by
the inaccessibility of the property or structures thereon for the
convenient entry and operation of fire and other emergency apparatus
or by the undue concentration or assemblage of persons upon such plot.
J.
Whether the use or the structures to be used therefor
will cause an overcrowding of land or undue concentration of population.
K.
Whether the plot area is sufficient, appropriate and
adequate for the use and the reasonably anticipated operation and
expansion thereof.
L.
Whether the use to be operated is unreasonably near
to a church, school, theater, recreational area or other place of
public assembly.
M.
Whether the site of the proposed use is particularly
suitable for such use.
N.
Whether adequate buffer yards and screening can and
will be provided to protect adjacent properties and land uses from
possible detrimental impacts of the proposed use.
O.
Whether adequate provision can and will be made for
the collection and disposal of stormwater runoff, sewage, refuse and
other liquid, solid or gaseous waste which the proposed use will generate.
P.
Whether the natural characteristics of the site are
such that the proposed use may be introduced there without undue disturbance
or disruption of important natural features, systems or processes
and without risk of pollution to groundwater and surface waters on
and off the site.
[Amended 6-15-1993 by L.L. No. 10-1993]
In deciding on any application for a special
exception use, the Zoning Board of Appeals may impose such conditions
and safeguards as it deems necessary or appropriate to preserve and
protect the spirit and the objectives of this chapter.
