[Amended 7-15-1992; 9-2-1992; 6-20-2001 by L.L. No. 3-2001; 2-15-2006 by L.L. No. 1-2006; 2-27-2019 by L.L. No. 3-2019; 6-26-2019 by L.L. No.
5-2019; 2-24-2022 by L.L. No. 4-2022; 3-9-2022 by L.L. No. 6-2022; 3-23-2022 by L.L. No. 7-2022; 4-12-2022 by L.L. No. 8-2022]
A.
Whenever a special use permit is required by this chapter, the applicant
shall proceed in accordance herewith. Application for a special use
permit shall be made in writing and filed with the Department of Building
and Fire Prevention on the relevant Town application forms. The application
must include plans and specifications as detailed in the Town's application
forms and/or information as may otherwise be required by the Town,
including as per the Director of Building and Fire Prevention, the
Director of Engineering and Planning, and/or their designee. Applications
shall be posted on the Town's website for public review at least 10
calendar days prior to the day of the public hearing to be had on
such application.
[Amended 10-12-2022 by L.L. No. 17-2022]
B.
Within a reasonable time the board to which such application is directed
(or, if such powers have been delegated by the board to the clerk
of the board or to the Building Inspector or designee, then such official)
shall direct a public hearing to be held on the application and fix
the date of such hearing. The hearing shall be held within 62 days
after filing of the application. Publication of notice of hearing
shall be made by the board once in the official newspaper at least
five days prior to the hearing date, and the board shall also mail
written notice of such hearing to all property owners within 750 feet
in all directions at least five days before the date of such hearing.
Proof of publication and mailing shall be filed with the Building
Inspector or designee before the hearing date. The board may delegate
the power to call the hearing and fix hearing dates to its clerk or
to the Building Inspector or designee.
C.
At such hearing, the board may take such testimony and thereafter
conduct such investigation as it deems necessary and shall, within
62 days after the hearing, grant or deny the application or grant
the same on conditions stated in the decision. The decision of the
board shall be entered in its minutes and filed with the Town Clerk
of the Town of Henrietta. If the special use permit is granted, the
decision of the board shall direct the Building Inspector or designee
to issue a building permit or certificate of occupancy, as may be
appropriate, in conformity with the decision, upon payment of the
required fee.
D.
In the case of an application to the Town Board, the
Town Board may, if it so desires and in its own discretion, before
taking final action, refer the application to the Planning Board.
Within 30 days after receipt of the application and the supporting
papers filed in connection therewith, the Planning Board shall report
its recommendations thereon to the Town Board, accompanied by a full
statement of its reasons for the recommendations. Said recommendations
are not binding upon the Town Board. If the Planning Board fails to
report on a referred application prior to the time the Town Board
is ready to act on the application, the Town Board may take action
relative to the application as it sees fit, without any report.
E.
Fees shall be as established by Town Board resolution
and paid to the Town Clerk as required by law.
In considering an application for a special use permit, the
Town Board shall make its decision based upon the following factors.
The Town Board may impose conditions, including in order to resolve
any issues identified via its assessment of said factors.
A.
Whether the proposed use is substantially consistent in its scale
and character with those uses permitted and the existing built permitted
uses in the subject zoning district and neighborhood or will otherwise
impair such uses due to inconsistency.
B.
Whether the proposed use aligns with the vision, goals and recommendations
of the Comprehensive Plan and other applicable plans and studies conducted
by or on behalf of the Town.
C.
Whether the proposed use aligns with the purpose, intent, and applicable
design and development standards of the zoning district(s) in which
the use is proposed to be located.
D.
Whether the proposed use will be a nuisance in law or in fact due
to its being materially noxious, offensive or injurious by reason
of the production of or emission of dust, smoke, refuse, poisonous
substances, odors, fumes, noise, radiation, vibration, unsightliness
or similar conditions, or will contaminate waters.
E.
Whether the proposed use will create material hazards or dangers
to the public or to persons in the vicinity from fire, explosion,
electricity, radiation, traffic congestion, crowds, parking of vehicles,
or other causes.
F.
Whether the proposed use will create materially adverse impacts that
cannot be adequately mitigated, such as to adversely impact natural
resources or the environment, agriculture, community services or other
areas required to be addressed by the State Environmental Quality
Review Act (SEQRA).
G.
Whether the physical conditions and characteristics of the site are
suitable for the proposed use considering site size, configuration,
location, access, topography, vegetation, soils, and hydrology for
effective stormwater management and, if necessary, the ability to
be screened from neighboring properties and public roads.
H.
Whether there are adequate public infrastructure, utilities, community
facilities and emergency services, either existing or to be provided
by the applicant or others, to effectively serve the proposed use.
A proposed use shall not create or contribute to an existing inadequacy.
I.
Whether the proposed use will provide, maintain, or enhance, as necessary,
safe and efficient vehicular traffic patterns, nonmotorized travel,
and pedestrian circulation as well as, where feasible, access to public
spaces, parks, recreation, and open space resources.
In considering an application for a special use permit, in addition to the factors set forth at § 295-54, the following additional provisions will apply to the following specified uses, including that the Town Board shall also consider the following additional factors when making its decision.
A.
Restaurants.
(1)
Generally. A special use permit for a restaurant shall specify
which operational subtypes are permitted in association with such
restaurant. Only those subtypes approved as part of the special use
permit are permitted in association with the subject restaurant.
(3)
Changes. A new restaurant using the existing space of a preexisting
restaurant may continue under the preexisting special use permit so
long as the preexisting special use permit contains the operational
subtypes that the new restaurant will employ. Should a new or existing
restaurant wish to modify the permitted subtypes of a special use
permit, it may apply for a new or amended special use permit.
B.
Cannabis retail dispensaries.
(1)
State approvals. Any approval of a cannabis retail dispensary
shall be conditioned upon proof of any required state or other governmental
approvals, including but not limited to licensure by the Cannabis
Control Board.
(2)
Increased buffer.
(a)
Cannabis retail dispensaries may be established no less than
1,000 feet from any: a) school or school grounds; b) park or playground;
c) church/house of worship; d) residence; or e) business which is
primarily focused on providing services/products to children, including,
for example, child-care facilities or recreational facilities with
a significant youth component. Whether a use qualifies as one of the
aforementioned, and thus requires an increased buffer, shall be assessed
by the Town Board as part of the special use permit process. Such
1,000-foot setback shall be measured from the closest portion of the
dispensary premises (inclusive of the dispensary building or leased
tenant space, as well as any exterior portions where the actual dispensing
might take place, such as outdoor sales locations or a drive through
window) to the nearest portion of the buffered use (inclusive of,
for example, outdoor spaces utilized by schools, for parks, etc.).
(b)
This buffer requirement may be reduced by the Town Board by
up to any lesser minimums otherwise required by the state. In considering
whether the reduction may be appropriate and the extent to which it
may be reduced, the Town Board shall consider: whether there is a
sufficient physical barrier between the dispensary and the buffered
use; whether and to what extent advertising, signage, and/or other
activity associated with the same which would be visible from the
buffered use; and to what extent any reduced buffer might otherwise
negatively impact the buffered use.
(3)
In no event shall any buffer be any less than otherwise required
by state law or any other governmental agency with jurisdiction over
the dispensary.
(4)
Additional special use permit factors. In considering a special use permit for a cannabis retail dispensary, the Town Board shall additionally consider how the § 295-54 special use permit factors apply specifically to any surrounding properties within a 250-foot distance, measured door-to-door. When measuring door-to-door, the nearest doors shall be used (not including emergency exit only doors).
C.
Specialty motor vehicle limited showroom/sales.
(1)
Limited volume and size and consistency with Industrial District.
Specialty motor vehicle limited showroom/sales operations are to be
smaller scale specialty sales operations which are significantly limited
in sales volume, size of operation and scope of products offered,
especially as compared to traditional car dealerships. In addition,
and consistent with the aforementioned, they shall be limited in use
intensity to be consistent with the industrial nature of the industrial
district within which they are located (e.g., they are not intended
to be a high-traffic retail area). Thus, the volume of expected sales
activity and resultant use intensity and traffic shall be materially
less than that of a typical car dealership and shall also generally
be consistent with the industrial character of the surrounding area.
In considering these issues, the Town Board shall consider (and may
impose conditions relating to) but is not limited to considering the
following: whether the number of vehicles for sale kept at the property
is sufficiently limited, whether the number of demonstration/showroom
vehicles kept at the property is sufficiently limited, whether activity
associated with transportation and delivery of vehicles to the site
is controlled and sufficiently limited, whether the size of the parking/storage
area on the site is sufficiently limited, and whether the range/types
of vehicles to be sold at the property is sufficiently limited, etc.
D.
Air-supported dome structures.
[Added 4-12-2022 by L.L.
No. 9-2022]
(1)
Any special use permit granting approval for an air-supported
dome structure shall include, but not be limited to the following
conditions:
(2)
The provisions of this subsection shall not apply to any lawful
or approved air-supported dome structure existing prior to the effective
date of this subsection; however, no air-supported dome structure
shall be modified unless in conformity with this subsection.
E.
Split-zoned parcels/split-zone special use permit. A split-zone special
use is a specially permitted use which permits a parcel comprised
of multiple zoning districts (i.e., a "split-zoned" parcel) to be
treated for zoning purposes as if it were zoned entirely as a single
designated zoning district present on the parcel (thus permitting
all uses of such designated district across the entire parcel). For
a parcel comprised of multiple zoning districts (as of the date of
this Local Law[1]), a "split-zone special use" may be permitted in any zoning
district in Town in accordance with and as set forth herein, subject
to issuance of a special use permit by the Town Board.
[Added 4-12-2022 by L.L.
No. 10-2022]
(1)
Generally. Where a split-zone special use permit is issued,
the entire subject parcel shall be treated for zoning purposes as
if it were zoned as the single designated zoning district, all in
accordance with this subsection.
(2)
Default zoning as mapped. Where no split-zone special use permit
is issued, a split-zoned parcel shall be treated in accord with the
applicable zoning districts as mapped - e.g., the portion of the parcel
zoned ILCD shall be treated in accordance with ILCD, and the portion
of the parcel zoned B-1 shall be treated in accordance with B-1.
(3)
Two zoning districts. Where a parcel spans exactly two zoning
districts, the entire parcel may be treated consistent with any single
zoning district which covers at least 40% of the parcel, subject to
issuance of a split-zone special use permit in accordance herewith.
In this case, for purposes of this chapter, the entire parcel shall
then be treated as if its zoning is entirely comprised of the designated
40+% zoning district.
(4)
Three or more zoning districts. Where a parcel spans three or
more zoning districts, the entire parcel may be treated consistent
with any single zoning district which covers at least 30% of the parcel,
subject to issuance of a split-zone special use permit in accordance
herewith. In this case, for purposes of this chapter, the entire parcel
shall then be treated as if its zoning is entirely comprised of the
selected 30+% zoning district.
(a)
Where no zoning district meets the 30% threshold in this case,
then the designation may be made by selecting a zoning district which
covers the largest or second largest area of the subject parcel, subject
to issuance of a split-zone special use permit in accordance herewith.
In this case, the entire parcel shall then be treated as if its zoning
is entirely comprised of the selected largest or second largest zoning
district.
(5)
Shared district subtypes. Where a split-zoned parcel contains
zoning districts that are of the same subtype (e.g., R-1-20 and R-2-15
are both "residential" districts), the districts of the same subtype
may be treated as a single zoning district for purposes of reaching
any threshold herein.
(6)
Preexisting zoning conditions/specifics. In considering the
issuance of a split-zone special use permit, the Town Board shall
address any existing zoning conditions (also sometimes referred to
as "specifics"), as follows:
(a)
If the designated zoning district contains conditions/specifics,
those conditions/specifics shall generally be applied to the entire
parcel. However, the Town Board may waive the application of the same
against the remainder of the parcel (i.e., the area of the parcel
which was not originally subject to such conditions/specifics) where
it finds that the application of such conditions/specifics to the
remainder of the parcel would not further the intent of such conditions/specifics
and/or would not otherwise represent a material benefit to the general
welfare of the Town given the split-zone special permit use.
(b)
If a non-designated district contains conditions/specifics,
then those conditions/specifics shall generally continue to apply
against the non-designated district area. However, the Town Board
may waive the application of the same where it finds that continued
application of the conditions/specifics would not further the intent
of the same and/or would not otherwise represent a material benefit
to the general welfare of the Town given the split-zone special permit
use.
(7)
Effect of split-zone special use permit. Where a split-zone
special use permit is issued, the entire parcel will then be treated
as entirely zoned in accord with the singular designated zoning district
- the parcel may not then continue to make use of any other zoning
districts unless the associated split-zone special use permit is terminated.
(8)
Termination of split-zone special use. Should one seek to return
to the original zoning of the parcel, a special use permit application
shall be made to the Town Board to terminate the existing split-zone
special use permit. In such a case, the Town Board may condition such
approval on discontinuance of uses that would not otherwise be permitted
pursuant to the underlying zoning but for the issuance of a split-zone
special use permit.
(9)
Subsequent subdivision of parcel with a split-zone special use.
(a)
Subdivision of a split-zone special use permit shall require
termination of the subject permit, and no nonconforming uses shall
be created due to the subdivision of a parcel with a split-zone special
use permit. As such, where a parcel which has received a split-zone
special use permit is proposed for subdivision, each of the parcels
(and their associated uses) resulting from such subdivision shall:
[1]
Be zoning compliant with the underlying district;
or
[2]
Qualify for, apply for and receive a split-zone
special use permit to continue existing uses which would require such
permit; or
[3]
Otherwise terminate the split-zone use permit and
associated uses to the extent they were permitted under a preexisting
split-zone use permit and would no longer qualify under the proposed
subdivision.
(b)
Should a resultant parcel not meet one of the above, then the
subdivision shall not be permitted.
(10)
No use of split-zone special use to circumvent rezoning. A subdivision
or combination of parcels shall not be utilized to manipulate districting
percentages in order to achieve thresholds herein, such as to avoid
the requirement to rezone or to permit development that would not
otherwise be permitted pursuant to the presubdivision or precombination
parcel(s).
[1]
Editor's Note: "This local law" refers to L.L. No. 10-2022,
adopted 4-12-2022.
F.
Smoke shops.
[Added 10-25-2023 by L.L.
No. 10-2023]
(1)
Increased buffer.
(a)
Smoke shops may only be established no less than 1,000 feet
from any a) school or school grounds, b) park or playground, c) church/house
of worship, d) residence, or e) business which is primarily focused
on providing services/products to children, including, for example,
child-care facilities or recreational facilities with a significant
youth component. Whether a use qualifies as one of the aforementioned,
and thus requires an increased buffer, shall be assessed by the Town
Board as part of the special permit process. Such 1,000-foot setback
shall be measured from the closest portion of the premises (inclusive
of the building or leased tenant space, as well as any exterior portions
where the actual sales might take place, such as outdoor sales locations
or a drive-through window) to the nearest portion of the buffered
use (inclusive of, for example, outdoor spaces utilized by schools,
for parks, etc.).
(b)
This buffer requirement may be reduced by the Town Board by
up to any lesser minimums otherwise required by the state. In considering
whether the reduction may be appropriate and the extent to which it
may be reduced, the Town Board shall consider: whether there is a
sufficient physical barrier between the establishment and the buffered
use; whether and to what extent advertising, signage, and/or other
activity associated with the same which would be visible from the
buffered use; and to what extent any reduced buffer might otherwise
negatively impact the buffered use.
(2)
Additional special permit factors. In considering a special permit for a smoke shop, the Town Board shall additionally consider how the § 295-54 special permit factors apply specifically to any surrounding properties within a 250-foot distance, measured door-to-door. When measuring door-to-door, the nearest doors shall be used (not including emergency exit only doors).
A.
The approval or granting of a "special use permit" shall mean the
authorization pursuant to this article of a specially permitted use
(i.e., a use requiring a special use permit), which authorization
is required prior to engaging in any such specially permitted use,
and which is thus also required prior any issuance of a building permit
or certificate of occupancy related to any specially permitted use.
B.
Validity and expiration. After a special use permit has been granted,
said special use permit shall expire and become null and void and
of no effect one year after it is granted, unless, within such year:
[Amended 11-15-2023 by L.L. No. 12-2023]
(1)
A principal use allowed per such special use permit actually, materially
and legally commences; or,
(2)
A certificate of occupancy/compliance relating to a principal building,
structure or use authorized pursuant to such special use permit (i.e.,
not an accessory building/structure/use, unless only an accessory
building/structure/use is authorized via the special use permit) is
duly issued; or
(3)
A building permit required for a principal building or structure
authorized pursuant to such special use permit (i.e., not for an accessory
building/structure, unless only an accessory building/structure is
authorized) is duly applied for, in which case the special use permit
shall continue to be valid during the term of any active building
permit for a principal building or structure authorized pursuant to
such special use permit (should one be issued), and such special use
permit shall expire and become null and void and of no effect at such
time as there is no such currently active and valid building permit
for a principal building or structure (e.g., all such building permits
are expired, have been revoked, etc.), unless:
(a)
Work authorized via any such building permit has been actually,
materially and legally commenced; or,
(b)
A certificate of occupancy relating to such valid building permit
is duly issued; or
(c)
A principal use (i.e., not an accessory use, unless only an
accessory use was authorized via the special use permit) allowed per
such special use permit actually and legally commences during the
pendency of any such valid building permit.
(4)
If other government permitting is required for construction (including, e.g., from the DOT, etc.) and a permit is duly issued by such other governmental agency and provided to the Town within such year, the special use permit shall be valid for six additional months beyond the original expiration date (18 total months), and shall thereafter expire and become null and void and of no effect, unless, within such 18 months a requirement as per Subsection B(1), B(2), or B(3) above is satisfied.
C.
Extension. The Town Board, for good cause shown, may grant a longer
period of time for the commencement of use, issuance of a certificate
of occupancy/compliance, issuance of a building permit, and/or commencement
of construction, provided, however, said application for extension
shall be made before expiration of time. Such extensions shall be
issued for periods of up to six months each.
[Amended 11-15-2023 by L.L. No. 12-2023]
D.
Cause for extension. In determining whether good cause exists for
such extension, the Town Board shall consider, among other things,
the nature and extent of the construction and complexity thereof,
practical difficulty tending to delay construction, availability of
utilities, strikes, scarcity of labor or materials, war or acts of
God.
[Amended 11-15-2023 by L.L. No. 12-2023]
E.
Any special use permit granted by the Town may be
revoked by the Town Board after notice and a hearing for any knowing
violation of any provision of federal, state and local law or ordinance
relating to the conduct of business and the use or maintenance of
the premises or the knowing failure to comply with all the notices,
orders, decisions and rules and regulations made by the Town governing
the occupation and use of the premises by the applicant or a duly
authorized agent or employee of the applicant in charge of the use.
F.
Notice of a hearing for the revocation of a special
use permit shall be given, in writing, by the Town Clerk. The notice
shall specifically set forth the grounds upon which the proposed revocation
is based and the time and place of the hearing. It shall be served
by mailing a copy to the applicant at his last known address by certified
mail, return receipt requested, at least five days prior to the date
set for the hearing.
G.
At the hearing, the applicant shall have the right
to appear and be heard, to be represented by an attorney, to present
witnesses on his own behalf, to cross-examine opposing witnesses and
to have a permanent record made of the proceedings at his own expense.
The Town Board shall revoke or suspend the special use permit if it
is satisfied by a preponderance of the evidence that the applicant
is guilty of the acts charged.
H.
The Town Board may issue another special use permit
to a person whose special use permit has been revoked as provided
in this section if, after a hearing, it is satisfied by clear and
convincing evidence that the acts which led to the revocation will
not occur again; otherwise, no person whose special use permit has
been revoked nor any person acting on his behalf, directly or indirectly,
shall be issued another special use permit to carry on the same activity.
