[1]
Editor's Note: The title of this article was changed
from "Special Use and Site Plan Review Criteria" to "Special Use Permit
and Site Plan Review Criteria" 9-13-2022 by L.L. No. 1-2022.
A.
The Town of Tusten 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 in the schedule of district regulations set forth in § 300-4.0 and any other sections of this chapter. In addition, the following uses shall also be considered special uses:
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 Tusten
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 § 300-7.2 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-oriented
businesses, airports, bulk fuel storage facilities, junkyards, natural
resource uses, natural resources processing, and valued-added 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 an 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 therefore.
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 section. 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.
C.
Zoning permits; certificate of use. 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 Code Enforcement Officer (CEO). Compliance with the New York State Uniform Fire Prevention and Building Code shall be determined by the Town Code Enforcement Officer (CEO) 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.
D.
Waiver of requirements. 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. Additionally, the Planning Board is authorized to waive parking requirements in accordance with § 300-6.12A(4).
[Amended 9-13-2022 by L.L. No. 1-2022]
E.
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.
F.
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:
G.
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 section 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.
Comprehensive plan. The proposed use shall be in harmony with purposes,
goals, objectives and standards of the Town of Tusten Comprehensive
Plan.
B.
Location. The proposed use in the proposed location shall not result
in either a detrimental over-concentration 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 Town of Tusten Comprehensive Plan.
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 Tusten. 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)
Sufficiency of protection for wetlands through stormwater and
drainage facilities, grading plans, vegetated riparian buffers, or
other means.
[Amended 9-13-2022 by L.L. No. 1-2022]
(7)
Adequacy of water supply and sewage disposal facilities.
[Amended 9-13-2022 by L.L. No. 1-2022]
(8)
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.
[Amended 9-13-2022 by L.L. No. 1-2022]
(9)
Adequacy of fire lanes and other emergency zones and the provision
of fire protection facilities.
[Amended 9-13-2022 by L.L. No. 1-2022]
(10)
Special attention to the adequacy and impact of structures,
roadways and landscaping in areas with susceptibility to ponding,
flooding and/or erosion.
[Amended 9-13-2022 by L.L. No. 1-2022]
(11)
The potential for the creation of nuisances such as, but not
limited to, noise, vibration, odor and glare.
[Amended 9-13-2022 by L.L. No. 1-2022]
(12)
The effect on the value and future development of neighboring
properties.
[Amended 9-13-2022 by L.L. No. 1-2022]
(13)
Such other factors as may reasonably be related to the health,
safety and general welfare of the community.
[Added 9-13-2022 by L.L.
No. 1-2022]
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 Code Enforcement Officer (CEO)
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 section 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, landscape or architect, and shall be drawn in
such reasonable detail and scale as deemed necessary by the Board
to determine compliance with this chapter. 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, and state and federal wetlands (state
wetlands are shown on the NYSDEC Environmental Resource Mapper, and
federal wetlands are shown on US Fish and Wildlife Wetlands Mapper);
[Amended 9-13-2022 by L.L. No. 1-2022]
(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;
(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 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 (SEQRA). The applicant shall
submit all documentation necessary to demonstrate compliance with
the New York State Environmental Quality Review Act[1] and the Planning Board shall take all required actions
relative to the same prior to acting on the special use/site plan.
[1]
Editor's Note: See Environmental Conservation Law Art. 8, § 8-0101
et seq.
F.
Agricultural data statement. The application shall include an agricultural
data statement as required by § 283-a of the NYS 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 NYS 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
NYS 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 § 300-8.3G 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)
E-mail to UDC/NPS relevant representative. At least 10 days
before the hearing the Town will convey an e-mail to the relevant
representative of the UDC/NPS to inform these parties of proposed
projects since the River Management Plan may be impacted.
(3)
Applicant and county. At least 10 days before the hearing required in § 300-8.3G 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.
(4)
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 Tusten, 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 § 300-8.3G 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)
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 § 300-8.3G.
(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 805.7 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.
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 § 300-8.4.
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 there
under; 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.
