[Adopted 9-24-1970 by Ord. No. 26 (Ch. 108, Art. XVII, §§ 108-75,
108-76 and 108-77, of the 1976 Code)]
A.
The Board of Appeals shall hear and decide appeals from and review
any order, requirements, decision or determination made by the Zoning
Officer.
[Amended 6-15-1976]
B.
The Board of Appeals shall have the power, in accordance with statutory provisions, after due notice and public hearing, where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of Chapter 301, Zoning and Land Development, to vary or modify the application of any of the regulations or provisions of Chapter 301 relative to the use, construction or alteration of buildings or structures or the use of land so that the spirit of Chapter 301 shall be observed, public health, safety and welfare secured and substantial justice done.
C.
The Board of Appeals shall have the power, in a specific case, after due notice and public hearing and subject to appropriate conditions and safeguards, to determine and vary the application of the regulations of Chapter 301 in harmony with their general purpose and intent, as follows:
(1)
Grant undeveloped sections of the Town temporary and conditional
permits for not more than two years for structures and uses in contravention
of the regulations controlling districts, provided that such uses
are important to the development of such undeveloped sections and/or
provided that such uses are not prejudicial to adjoining and neighboring
sections already developed.
(2)
Grant special exceptions and special permits for any of the uses for which Chapter 301 requires the obtaining of such special exceptions and special permits from the Board of Appeals. In granting such special exceptions and special permits, the Board may prescribe appropriate conditions and safeguards in conformity with Chapter 301.
(a)
The Board of Appeals shall grant special exceptions and special
permits only upon making the following determinations:
[1]
That the use will not prevent the orderly and reasonable use
of adjacent properties or of properties in the surrounding area, or
impair the value thereof.
[2]
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 districts.
[3]
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.
(b)
In making such determinations, the Board of Appeals shall give
consideration, among other things, to:
[1]
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 such proposed uses.
[2]
The conservation of property values and the encouragement of
the most appropriate uses of land.
[3]
The effect that the location of the proposed use may have upon
the creation or undue increase of traffic congestion on public streets,
highways or waterways.
[4]
The availability of adequate and proper public or private 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.
[5]
Whether the use or materials incidental thereto or produced
thereby may give off noxious gases, smoke or soot.
[6]
Whether the use will cause disturbing emission of electrical
discharges, dust, light, vibration or noise.
[7]
Whether the operations 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 agency.
[8]
The necessity for an asphaltic- or concrete-surfaced area for
purposes of off-street parking and loading of vehicles incidental
to the use, and whether such area 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 had.
[9]
Whether a hazard to life, limb or property because of fire,
flood, erosion or panic may be created by reason or as a result of
the use, or by the structures to be used therefor or by the inaccessibility
of the plot or structure 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.
[10]
Whether the use or the structures to be used therefor will cause
an overcrowding of land or undue concentration of population.
[11]
Whether the plot area is sufficient, appropriate and adequate
for the use and the reasonably anticipated operation and expansion
thereof.
[12]
The physical characteristics and topography of the land.
[13]
Whether the use to be operated is unreasonably near to a church,
school, theater, recreational area or place of public assembly.
(3)
Grant a special exception where it is provided in Chapter 301 that the approval of the Board of Appeals is required for the increase in total building area and increase in the height of buildings, if the Board shall determine the matters contained in Subsection C(2)(a) of this section and additionally consider the applicable provisions of Subsection C(2)(b) of this section and also consider whether the spacing of the buildings or the construction with suitable materials will prevent a conflagration.
(4)
Grant a special exception where it is provided in Chapter 301 that the approval of the Board of Appeals is required for the use of premises and erection of public utility buildings or structures, dog and horse training and alcohol manufacture, if the Board shall determine the matters contained in Subsection C(2)(a) of this section and additionally consider the applicable provisions of Subsection C(2)(b) of this section and also consider whether the provisions of the laws, ordinances, rules and regulations of all state, federal and local agencies or bureaus applicable to such use have been complied with.
[Amended 7-3-1979[1]]
[1]
Editor's Note: This ordinance also repealed original § 108-76C(4) of the 1976 Code, which immediately preceded this subsection, regarding granting special exceptions for business signs in front yards.
(5)
Chapter 301, § 301-231, provides for off-street parking and truck-loading space requirements. As an incident of the implementation of Chapter 301, nonresidential property owners in particular are required to supply parking and truck-loading spaces whenever commercial premises are improved. Consistent with the requirements, the Board of Appeals is permitted, on consideration of sufficient evidence and proof, to vary the terms and requirements of Chapter 301 to the extent that off-street parking and/or truck-loading spaces may be in whole or in part avoided.
[Added 10-6-1987]
(a)
The Town Board recognizes that such parking and off-street truck-loading space variances may be appropriate as a matter of legal construction, but the Town Board also recognizes that there is a continuous and persistent demand for additional off-street parking and/or truck-loading spaces throughout all zoning districts. Conditions that may be established by a Zoning Board of Appeals on the issuance of a parking variance do not and cannot meet the problem of insufficient parking and truck-loading spaces. Therefore, the Town Board finds that special provisions must be enacted in order to avoid or minimize the adverse impacts of such variances and in order to promote the purposes for which Chapter 301 was originally enacted.
(b)
The Town Board has decided to establish a trust fund to be used
by the Town of Riverhead exclusively for public off-street parking
and truck-loading space purposes, including the acquisition and improvement
of land for such purposes. By way of further explanation, these special
provisions would require, as a condition to the granting of a parking
or truck-loading space variance, a payment to such trust fund of a
sum to be determined by the Town Board from time to time for each
and every space for which a variance is granted. The total amount
required to be paid to the trust fund would be equivalent to the number
of spaces for which the variance or variances are granted, multiplied
by the per-space sum in effect at the time of the granting of the
variance or variances. The per-space sum is intended to be equivalent
to the estimated cost per space of providing off-street parking and
truck-loading spaces. As a result of the enactment of these special
provisions as an ordinance, the Town of Riverhead would be able to
provide spaces needed and would thereby promote the public safety
and welfare by alleviating traffic congestion and easing the use of
the commercial facilities now or hereafter established in all zoning
districts.[2]
(c)
Every decision of the Board of Appeals which grants a variance waiving, varying or modifying the requirements of Chapter 301 to the extent that the number of spaces required by Chapter 301 for off-street parking and/or truck-loading is reduced shall clearly set forth the extent of such variance or variances by stating the number of spaces required pursuant to Chapter 301, the reduced number of spaces required by reason of the decision by the Board of Appeals and the number of spaces thus avoided or waived by the determination of the Board of Appeals. The number of spaces so waived by the Board of Appeals shall constitute the number of spaces for which a variance is required.
(d)
Every such variance granted by the Board of Appeals waiving, varying or modifying the requirements of Chapter 301 for off-street parking and/or truck-loading spaces in whole or in part, where the zoning use is a preexisting nonresidential use in any zoning district, shall be made subject to a condition requiring a payment to the Town of Riverhead of a sum to be determined by the Town Board from time to time for each and every space for which a variance or waiver is granted, which said sums shall constitute a trust fund to be used by the Town Board exclusively for public off-street parking and truck-loading space purposes, including the acquisition and improvement of land for such purposes. Such condition shall be deemed a condition of every such variance, and such payment may be referred to as the off-street parking space fee.
(e)
The amount of the per-space sum required to be paid to the Town
for each and every space for which a variance is granted shall be
$2,000 per space, or such other amount as the Town Board may hereafter
fix by resolution of the Town Board, which shall be reviewed and fixed
again from time to time as circumstances warrant.
(f)
There is hereby created a Town of Riverhead Public Off-Street
Parking and Truck-Loading Space Trust Fund to be used by the Town
Board exclusively for off-street parking and truck-loading space purposes,
including the acquisition and improvement of land for such purposes.
D.
Any determination made by the Board of Appeals shall not become effective
unless a permit is obtained in accordance therewith within one year
of the date of such determination, unless the Board of Appeals stipulates
a different period of time in its determination. The Board of Appeals
shall have the power, by resolution, to extend its determination for
a period of one year upon written notice from the applicant or his
agent of the desire to do so. No more than three such extensions shall
be allowed. The provisions of this subsection shall not apply in cases
of interpretation of variances for the use of land unless the Board
of Appeals stipulates a period of time in its determination.
[Amended 1-5-1988]
E.
The applicant shall erect a sign giving notice that an application
for an appeal or special exception is pending and giving the date,
time and place where the public hearing will be held. The sign will
be furnished by the Town of Riverhead. It shall not be set back more
than 10 feet from the property line and shall not be less than two
nor more than six feet above the grade at the property line. It shall
be displayed for a period of not less than seven days immediately
preceding the public hearing date or any adjourned date. Further,
the applicant shall be required to send notice to the owners of record
of every property which abuts each and every property which is across
from any public or private street from the property included in the
application. Such notice shall be made by certified mail, return receipt
requested, posted at least seven days prior to the date of the initial
public hearing on the application and addressed to the owners at the
addresses listed for them on the local assessment roll in the Assessor's
office. The applicant or agent shall file an affidavit that he or
she has complied with all the provisions of this section and shall
also provide a listing of the names, addresses and Tax Map numbers
for which mail notification was required to the Board reviewing the
subject application. No public hearing shall be held unless such affidavit
has been filed.
[Added 5-17-1977; amended 10-21-2003 by L.L. No. 21-2003]
F.
Up to two adjournments requested by the applicant may be granted
by the Board of Appeals. Upon the third scheduled hearing, the case
must be heard or the applicant forfeits the application without prejudice.
Nothing in this section shall be construed to affect or deny the applicant
from making a new application in accordance with all provisions of
this chapter and Municipal Town Law.
[Added 6-7-2016 by L.L.
No. 19-2016]
[Amended 6-15-1976; 10-3-1978; 11-8-1978; 12-29-1989; 12-2-2003 by L.L. No. 26-2003]
A.
For each appeal to the Board of Appeals, there shall be filing fees,
payable upon the submission of an application, in the following amounts:
[Amended 4-19-2005 by L.L. No. 11-2005; 5-22-2019 by L.L. No. 14-2019; 6-4-2019 by L.L. No. 15-2019]
(1)
Residential applications:
(a)
Use variances: $500.
(b)
Area variances and/or interpretations: $300.
(c)
Appeals in accordance with New York State Town Law Article 16,
§ 280-a: $25.
(d)
Structures being 100 square feet and less, including swimming
pools being 100 square feet and less of surface area and of less than
a three-foot depth: $25.
(2)
Commercial applications:
B.
The Board of Appeals shall have the discretion to refund a fee where
it deems waiving such a fee is appropriate.
