The intent of this article is to vest certain powers, actions,
functions and responsibilities authorized to and performed by the
Board of Appeals in the Town Board of the Town of Brookhaven. It is
the Town Board's express intent and purpose by this article, pursuant
to § 10 of the Municipal Home Rule Law and § 10
of the Statute of Local Governments, to supersede, to the extent necessary,
New York State Town Law § 274-b, entitled "Approval of special
use permits," by vesting the responsibility for same in the Town Board.
The Town Board shall have the powers and duties enumerated herein. An application requesting a special use permit shall be addressed to the Town Board, in accordance with the requirements set forth herein and in §
85-81.
The Town Board shall have the following powers and duties:
A. To hear and authorize, in specific cases, such special permits. An
application requesting a special use permit shall be addressed to
the Town Board, in accordance with the requirements set forth in this
chapter.
[Amended 2-22-2024 by L.L. No. 4-2024, effective 2-27-2024]
B. To review special permits for any of the uses for which this chapter
requires the obtaining of such permits from the Town Board. In granting
such permits, the Town Board may waive or modify any of the criteria
listed herein or within the specific zoning districts and/or it may
limit the duration of the special use permits and prescribe appropriate
conditions and safeguards in conformity with this chapter.
[Amended 9-13-2018 by L.L. No. 25-2018, effective 9-24-2018; 2-22-2024 by L.L. No. 4-2024, effective 2-27-2024]
(1) No special use permit shall be granted by the Town Board unless it
shall determine:
(a)
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.
(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 districts.
(c)
That the safety, health, welfare, comfort, convenience or 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.
(2) In making such determination, the Town Board shall give consideration,
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 permissive 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 may have upon
the creation or undue increase of traffic congestion on public streets,
highways or waterways.
(d)
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.
(e)
Whether the use or materials incidental thereto or produced
thereby may give off obnoxious gases, odors, smoke or soot.
(f)
Whether the use will cause disturbing emission 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 agency.
(h)
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.
(i)
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 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 all 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 reasonable anticipated operation and expansion
thereof.
(l)
The physical characteristics and topography of the land.
(m)
Whether the use to be operated is unreasonably near to a church,
school, theater, recreational area or place of public assembly.
(3) In addition to the criteria set forth herein, compliance must be
demonstrated with the specific criteria set forth within the applicable
zoning district classifications, including the dimensional requirements
contained therein, unless:
(a)
The applicant makes and receives relief from the Board of Zoning
Appeals; or
(b)
The applicant, in conjunction with its special permit application
to the Town Board, seeks and is granted by the Town Board a waiver
or modification. The authority to grant relief hereunder shall comport
with the requirements of Town Law § 274-b, and as a result
of the election for relief of waiver and/or modification to the Town
Board, instead of seeking a variance from the Board of Zoning Appeals,
such determination shall be final and reviewable by the courts.
(4) Expiration. All special permits granted by the Town Board pursuant
to this chapter shall expire three years after the date of the Town
Board's grant of approval thereof, unless a building permit has been
issued and substantial construction has commenced in reliance thereon.
The Town Board may grant a maximum of three extensions, not to exceed
one year each. Upon written request by the applicant/owner, or representative
thereof, received by the Town Clerk, in writing, with the required
application fee as established by Town Board resolution, prior to
the expiration date of the permits. For purposes of this subsection,
the date of the grant of approval is defined as the date set by the
Town Clerk for the special permit to become effective, thereby causing
the special permit to be in full force and effect.
If any clause, sentence, paragraph, section or item of this
article shall be adjudged by a court of competent jurisdiction to
be invalid, such judgment shall not impair nor invalidate the remainder
hereof, but such adjudication shall be confined in its operation to
the clause, sentence, paragraph, section or item directly involved
in the controversy in which such judgment shall have been rendered.