Village of Northport, NY Article X Board of Zoning Appeals

§ 306-37 Composition; form; appointment; removal; vacancies; training.

[Amended 11-16-1976 by L.L. No. 14-1976]

A. There shall be a Board of Zoning Appeals consisting of five members, appointed and/or removed pursuant to the Village Law. No member of the Board of Trustees shall be eligible for membership on the Board of Zoning Appeals. There shall be a Chairman and Deputy Chairman appointed pursuant to law and for a term established by law. The Board of Zoning Appeals shall have all other powers as granted by law.

B. The office of Secretary to the Board of Zoning Appeals is herewith created. Appointment to said position shall be made by the Mayor, subject to the approval of the Board of Trustees, for a term of one official year. If a vacancy occurs, other than by expiration of term, it shall be filled by appointment pursuant to law. The appointee may be removed by the Mayor for cause after a public hearing.

[Added 3-3-1981 by L.L. No. 1-1981]

C. There shall be two alternate members of the Board of Zoning Appeals appointed by the Mayor, subject to the approval of the Board of Trustees, for a term of four years each. The Chairperson of the Board of Zoning Appeals may designate an alternate member to substitute for a member due to a conflict of interest or where a member cannot participate for other reasons. Alternates so selected shall be on a rotating basis and once designated shall possess all the powers and responsibilities of a member for the appeal(s) for which the designation has been made.

[Added 7-5-2006 by L.L. No. 4-2006]

D. Training.

[Added 7-5-2006 by L.L. No. 4-2006; amended 4-5-2007 by L.L. No. 1-2007]

(1) Each member of the Board of Appeals shall complete, at a minimum, four hours of training each year designed to enable such members to more effectively carry out their duties. Training received by a member in excess of the four hours in any one year may be carried over by the member into succeeding years in order to meet the requirements of this subsection. Such training shall be approved by the Village Attorney and may include, but not be limited to, training provided by a municipality, regional or county planning office or commission, county planning federation, state agency, statewide municipal association, college or other similar entity. Training may be provided in a variety of formats, including but not limited to electronic media, video, distance learning and traditional classroom learning.

(2) To be eligible for reappointment to such Board, such member shall have completed the training promoted by the Village pursuant to this subsection.

(3) The training required by this subsection may be waived or modified by resolution of the Board of Trustees when, in the judgment of the Board of Trustees, it is in the best interest of the Village to do so.

(4) No decision or action of the Board of Appeals shall be voided or declared invalid because of a failure to comply with this subsection.

§ 306-38 Meetings and procedure.

A. Call of meeting. All meetings shall be held at the call of the Chairman and at such other times as the Board may determine.

B. Meetings; conduct. All meetings shall, to the extent required by law, be open to the public. Meetings shall be conducted in accordance with rules of procedure, if any, established by such Board. At the request of any interested party or when desired by the Board, witnesses shall testify under oath. The Chairman or Vice Chairman may administer oaths and also compel the attendance of witnesses.

C. Meetings; notice; hearings.

[Amended 2-15-1972 by L.L. No. 1-1972; 11-16-1976 by L.L. No. 14-1976; 8-17-1999 by L.L. No. 12-1999]

(1) Decisions and recommendations of the Board shall be reached only after a public hearing and after notice has been given any applicant or appellant by registered mail. In addition, notice shall be published in the official newspaper not less than five days previous to the hearing. Such notice shall contain the address or location of the premises concerned, the name of the applicant and a brief description of the nature of the application.

(2) In addition to the foregoing, the applicant shall cause the notice of hearing to be sent by regular mail and shall provide the Board with certification by the United States Postal Service that such mailing was made to the owners of all adjoining property within 500 feet of the exterior limits of the applicant's total property holding, as shown on the latest tax assessment roll, at least 14 days prior to the hearing. A copy of said notice shall also be addressed to the Town or Village clerk of neighboring municipalities within 500 feet of the subject property, when applicable, subject to New York State General Municipal Law 239-m. Further, in the case of an application for a variance and/or special permit or in the case of an appeal from a decision of the Code Compliance Director, the applicant shall post, in a conspicuous portion of the subject property (within 10 feet of the public way) a sign giving notice of the nature of the application, the date of the public hearing and any other pertinent information as may be required by the Code Compliance Director. Said sign shall be erected at least 14 days prior to the public hearing and shall be no smaller than two by two feet.

[Amended 11-6-2006 by L.L. No. 10-2006; 9-16-2008 by L.L. No. 4-2008]

D. Meeting; record of proceedings.

(1) The Board shall keep minutes of its proceedings, examinations and other official actions. Such records shall contain, as to each item of business, the following information:

(a) The question or proposition before the Board.

(b) The vote of each member.

(c) The name of each member absent or abstaining from voting.

(d) A statement of facts found by the Board.

(e) The decision of the Board.

(f) Any other matter desired by the Board.

(2) Every rule and regulation, every amendment or repeal thereof and every order, requirement, decision or determination of the Board shall immediately be filed in the office of the Clerk of the Board and shall be a public record.

§ 306-39 Jurisdiction.

[Amended 2-15-1972 by L.L. No. 1-1972; 10-2-1973; 3-7-1976 by L.L. No. 3-1976]

The Board of Zoning Appeals shall have jurisdiction in the following matters:

A. Appeals. To hear and decide appeals in accordance with Village Law § 7-712-b.

[Amended 8-17-1999 by L.L. No. 12-1999]

B. Permits. To issue permits for any of the uses for which this chapter requires the obtaining of such permits from the Board of Zoning Appeals. Approval of special use permits shall follow the procedures set forth in Village Law § 7-725-b.

[Amended 11-16-1976 by L.L. No. 14-1976; 6-7-1977 by L.L. No. 13-1977; 3-3-1981 by L.L. No. 2-1981; 1-2-1985 by L.L. No. 1-1985; 6-24-1997 by L.L. No. 7-1997; 8-17-1999 by L.L. No. 12-1999]

(1) General. The Board of Zoning Appeals shall apply the following general standards which shall be applicable to all requests for special permits made under this chapter:

(a) No special permit shall be granted by the Board of Zoning Appeals unless it shall determine that:

[1] The use will not prevent the orderly and reasonable use of adjacent properties in the surrounding area or impair the value thereof.

[2] 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] The safety, health, welfare, comfort, convenience or order of the Village will not be adversely affected by the proposed use and its locations.

[4] The use will be in harmony with and promote the general purposes and intent of this chapter.

(b) In making such determination, the Board of Zoning 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 permissive 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 obnoxious gases, odors, smoke or soot.

[6] Whether the use will cause disturbing emission of electric 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 Village or by any other governmental agency.

[8] To the necessity for an asphalt- 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 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.

[10] Whether the use or the structures to be used therefor all cause an overcrowding of land or undue concentration of population, or deprive neighboring uses of light and air.

[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 a church, school, theater, recreational area or place of public assembly.

(2) Specific requirements. In considering application for the following specific permits, the Board of Zoning Appeals, as a condition to its issuance of such permits, shall first determine that all the requirements indicated in the following provisions for such permit have been or will be met upon the issuance thereof and the satisfaction of which requirements shall be a continuing condition of the validity and existence of such permit. In addition to the minimum requirements hereinafter indicated, the Board of Zoning Appeals is also empowered to impose any further requirements or conditions to any permit which, in its opinion, are reasonably designed to further the interest and purpose of this chapter and which are in harmony with the provisions hereof.

(a) Business or public garage, automobile service or filling station, automobile repair shop, automobile body shop, motor vehicle salesroom and installation of facilities for the storage of fuel oil, gasoline or other flammable liquids in excess of capacity of 1,000 gallons in the Highway Business District.

[1] Business or public garage, automobile service or filling station, automobile repair shop, automobile body shop and motor vehicle salesroom.

[a] No repair work is to be performed out of doors.

[b] Pumps, lubricating equipment and other devices are to be located at least 25 feet from any street line.

[c] All fuel, oil or similar substances are to be stored at least 35 feet from any street line, but installations existing at the time of adoption of this chapter and which do not conform to this requirement may be relocated, increased in capacity or replaced within an area less than 35 feet from a street line if such relocation, increase in capacity or replacement will not adversely affect the public welfare and will not be prejudicial to adjoining property owners.

[d] All automobile parts, dismantled vehicles and similar articles are to be stored within the principal building.

[e] No vehicles are to be scrapped or junked on the premises.

[f] The proposed location and manner of storage of all flammable liquids complies with all pertinent statutes, ordinances and regulations.

[g] The proposed use of the premises will not create traffic hazards or cause an undue increase of traffic congestion in the vicinity of the premises.

[h] The premises are not situated within 300 feet of any church, place of worship or school.

[i] In all cases, except for automobile body shops, registered vehicles owned by customers and present on the premises for servicing and/or repairs (other than body repair) may be stored for a period not exceeding one week in any of the parking spaces provided for on the premises. In no event shall the storage of said vehicles occupy any of the spaces on the premises required under § 306-21 of this chapter for the parking of employee vehicles. In the case of automobile body shops, when a vehicle is present on the premises for auto body repair, said vehicle, whether operable or inoperable, shall be stored within the principal building and may not be parked in any of the parking spaces located on the premises.

[j] Canopies over gasoline pumps shall be built to a scale compatible with the main building on the property. Their height, as measured from the lowest finished or natural grade to the lowest point on the canopy fascia, shall not exceed 14 feet, or the minimum required by the National Fire Protection Association, whichever is greater. The clearance height of canopies shall be clearly indicated on the structure or through use of a headache bar.

[Added 11-6-2006 by L.L. No. 10-2006]

[k] Canopies shall extend no farther than 11 feet from the gasoline pumps in any direction.

[Added 11-6-2006 by L.L. No. 10-2006]

[2] Installation facilities for the storage of fuel oil, gasoline or other flammable liquids in excess of capacity of 1,000 gallons in the Highway Business District.

[a] The provisions of § 306-39B(2)(a)[1][b], [c], [f], [g] and [h] above shall apply to the installation of such facilities.

[b] In no event shall such storage facilities exceed a capacity of 25,000 gallons.

(b) Conversion of existing residential structures to multiple-family use.[1]

[1] The building has been in existence at its present location and in its present size since 1925.

[2] The building is not to be increased in size or cubic content.

[3] The building, by reason of obsolescence in style, construction and size, is not marketable for use and occupancy as it is currently used. Notwithstanding the foregoing, nothing herein shall permit the conversion of a building having less than 1,200 square feet of ground floor space.

[4] The building at the time of application hereunder is used as a residence for two or fewer families, as the term "family" is defined in § 306-5 of this chapter.

[5] The applicant seeks permission to use the building as a residence for no more than three families, provided that each apartment shall contain at least 600 square feet of gross floor space.

[6] The exterior appearance of the building will not be altered or changed.

[7] One on-site parking space per family is provided.

[1] Editor's Note: See also general requirements set forth in § 306-39B(1).

(c) Topsoil or earth removal permits: all requirements set forth in § 306-19B hereof.[2]

[2] Editor's Note: See also general requirements set forth in § 306-39B(2).

(d) Permits for storage or warehousing of materials or for light industry in a Highway Business District.[3]

[1] No materials or supplies shall be stored in the open, unless adequate measures are taken to enclose and conceal such materials from the public view.

[2] The premises are not situated within 500 feet of any church, place of worship, school or municipal recreational facility.

[3] Editor's Note: See also general requirements set forth in § 306-39B(1).

(e) Fairground or carnival permit.[4]

[1] The applicant is a local bona fide charitable, philanthropic, firemanic or similar community organization not organized for profit but dedicated to community service.

[2] The use of the premises for such purposes will be conducted by or under the sponsorship of the applicant for the advancement of its dedicated purposes.

[3] Adequate off-street parking is available for the patrons of or visitors to the premises.

[4] Such use will not be had for a greater period than two weeks during any calendar year.

[4] Editor's Note: See § 306-41, and see also general requirements set forth in § 306-39B(1).

(f) Conditional use permits for limited on-premises consumption of food and beverages.

[1] The underlying use is engaged in the sale at retail of foodstuffs and beverages, as permitted by § 306-11, 306-12 or 306-13 of this chapter, existing on March 1, 1997, except such a use engaged in the sale of alcoholic beverages.

[2] Notwithstanding § 306-39E of this chapter, the premises is located within one hundred feet of any municipal parking lot. The foregoing requirement shall be in addition to the parking spaces, if any, required to be provided for the uses located on the premises by § 306-21 of this chapter. If granted, the limited on-premises consumption of food and beverages permitted hereunder shall not be deemed an additional use under § 306-21 of this chapter.

[3] The on-premises consumption shall be limited to service at no more than eight seats. There shall be permitted one seat for each 100 square feet of gross floor space up to a total of no more than eight seats.

[Amended 10-2-2001 by L.L. No. 12-2001]

[4] Once granted, the applicant must commence the use within 120 days of the date of issuance of the permit. The permit shall expire and be of no further effect in the event that the underlying sale at retail of foodstuffs and beverages use ceases to exist.

[5] Any permit granted hereunder shall expire on the date two years next following issuance unless renewed by the Board of Zoning Appeals prior to the date of expiration.

(g) [5]Marine Business District uses.

[Added 1-17-2012 by L.L. No. 1-2012]

[1] Uses permitted by special use permit. The following uses shall be permitted in the Marine Business District by special use permit, subject to the conditions noted herein and any conditions imposed by the Board of Zoning Appeals which are designed to mitigate adverse impacts of the proposed use:

[a] Restaurant which serves alcoholic beverages but which does not feature outdoor music, including outdoor live or amplified music, and which has a maximum indoor square footage of 1,000 square feet of dining area per restaurant, with the maximum square footage devoted to all restaurants on the entire marina property not to exceed 12% of the total square footage of space within buildings devoted to retail uses, excluding space devoted to boat repair, maintenance or storage; a maximum of 200 seats (indoor and outdoor combined) permitted for all restaurant uses for the entire marina property. (Note: There also are other restrictions on the number of seats permitted for outdoor dining set forth hereinafter in Subsection B(2)(g)[4][g].)

[Amended 2-7-2023 by L.L. No. 2-2023]

[b] Outdoor live and amplified music for no more than four special events, each such event to be held on a single day between the hours of 12:00 noon and 8:00 p.m., in any calendar year, for which a special use permit is obtained from the Board of Zoning Appeals.

[c] Such other uses which the Board of Zoning Appeals finds are harmonious with existing uses and not harmful to adjacent properties.

[2] Standards to be considered by the Board of Zoning Appeals. Before granting a special use permit, the Board of Zoning Appeals shall take into consideration the following:

[a] The impacts upon neighboring properties.

[b] Traffic impacts, including adoption or modification of a parking plan as described in Subsection B(2)(g)[3] herein.

[c] Whether the floor area, seating or other physical attributes of a proposed use should be modified to mitigate adverse impacts.

[d] Whether the specific location for the proposed use is appropriate.

[e] Whether the number of such uses should be limited due to impacts upon nearby properties.

[f] Whether the proposed uses are in harmony with other uses on the subject property.

[g] All uses on the subject property must be lawfully existing before an additional use is granted.

[h] Impact on municipal services.

[i] Environmental and physical impacts of the proposed use.

[j] Whether the proposed use will be in compliance with the noise restrictions contained in the Village Code at § 200 et seq.

[k] The Board of Zoning Appeals is authorized to grant special use permits of a limited time period and which require the owner and applicant to return to the Board of Zoning Appeals within a specified time period to monitor compliance with the Board of Zoning Appeals grant and to determine if any modifications are warranted due to the impacts within and upon abutting properties;

[l] Compliance with the general standards applicable to special use permits at § 306-39B(1).

[m] Applicants requesting a waiver or variance from any permit requirement must set forth variance proof to support a grant of the requested relief and specify the nature of this request in the public notice posted on the property and mailed to adjacent property owners.

[3] Parking plan requirement. Before granting a special use permit, the Board of Zoning Appeals must approve a Master Parking Plan ("MPP") that provides for adequate parking for all on-site uses. The proposed MPP shall be referred to the Planning Board for review and recommendations. A MPP that has been approved by the Board of Zoning Appeals shall apply to all uses on the marina property. For as-of-right uses, the Building Inspector shall rely on the approved MPP as same may be modified by the Board of Zoning Appeals from time to time. A change in use or new use which triggers an increased parking requirement not provided for in the MPP shall require an application to the Board of Zoning Appeals. Changes in use or new uses which do not trigger an increased parking requirement shall be approved by the Building Inspector.

[4] Outdoor dining. Restaurant uses may be granted permission for outdoor dining, subject to compliance with the following:

[a] No outdoor music, including outdoor live or amplified music;

[b] All patrons outdoors must be at tables for the purpose of dining, where service of food and beverages, including alcoholic beverages, shall be by waiter/waitress service only;

[c] There shall be no congregating by patrons in outdoor areas for any other purposes, except in a designated waiting area only if approved by the Board of Zoning Appeals, provided that no consumption of alcoholic beverages shall be permitted in a designated outdoor waiting area;

[d] All outdoor areas shall be specifically designated on a seating plan approved by the Board of Zoning Appeals and devoted to tables for diners without any other activities;

[e] Outdoor seating is prohibited after 10:00 p.m., Sunday through Thursday, except holiday eves and after 11:00 p.m., Friday, Saturday and holiday eves;

[f] Except for a service bar, no bar area where customers are served food or beverages directly or where any bar stools or seats are located may be located outside;

[g] The Board of Zoning Appeals shall determine the maximum number of outdoor seating for each restaurant, but in no event shall outdoor seating be permitted for more than 100 persons per restaurant and for more than 150 persons in total for outdoor dining for all restaurants on site.

[Amended 2-7-2023 by L.L. No. 2-2023]

[5] Indoor music restriction. If live or amplified music is played indoors, then doors, windows or other openings must stay closed for the entire duration of such music, excepting such ingress and egress as is necessary for fire protection purposes and for general safety of patrons and employees. Furthermore, indoor music is permitted only until 9:00 p.m. on Fridays, Saturdays and holiday eves; on all other days, indoor music is permitted only until 8:00 pm. For the purposes of this section, "holiday eves" shall mean the day before a nationally recognized holiday.

[6] Pending applications. As to pending applications for relief relating to the subject matter of the amendments, the applicant and property owner are required to reapply under the enacted provisions of this code subsection.

[7] Lawfully existing uses may continue. Lawfully existing uses may continue and are not required to obtain any relief from the Board of Zoning Appeals to continue. A change in any such use that triggers a greater parking requirement shall be required to apply to the Board of Zoning Appeals for relief and/or modification of an existing Master Parking Plan ("MPP"), unless there is an approved MPP which provides for sufficient parking for such change in use.

[8] (Reserved)[6]

[6] Editor’s Note: Former Subsection B(2)(g)[8], regarding Marine Business District uses, was repealed 2-7-2023 by L.L. No. 2-2023.

[9] Marine Business District code supersedes restrictive covenants. If there are restrictive covenants in effect for a property that conflict with these Code sections for the Marine Business District, then the Board of Zoning Appeals is authorized to grant a modification of such covenants consistent with determinations it makes under this chapter.

[10] Enforcement. In addition to code enforcement officials of the Village, sworn officers of the Northport Village Police Department are authorized to issue summonses for any violations of this chapter and any violations of restrictions and conditions imposed by the Board of Zoning Appeals on any special use permits or other grants.

[5] Editor's Note: Former Subsection B(2)(g), Temporary permit for outdoor dining on private property, added 7-6-1999 by L.L. No. 10-1999, as amended, was repealed 3-18-2009 by L.L. No. 1-2009.

(h) Drive-through facilities.

[Added 11-6-2006 by L.L. No. 10-2006; amended 6-1-2021 by L.L. No. 2-2021]

[1] Drive-through facilities shall be permitted only in the Highway Business District on parcels that are fronting on a state highway on a parcel of land in excess of 1/2 acre and cannot be adjoining any residentially zoned or used property and upon a finding by the Planning Board that the general standards for the issuance of a special permit as set forth in Northport Village Code § 306-39B(1) have been met. Applications for special use permits for drive-through facilities shall be made to the Planning Board which shall have jurisdiction to issue special use permits for drive-through facilities by applying the standards set forth in § 306-39B(1).

[2] A traffic impact study must be provided, including accident data for all roads and streets where an access connection will be located. The study shall demonstrate that:

[a] All streets and intersections to be impacted by the project shall have the same level of service or better than predevelopment conditions.

[b] All vehicle stacking for the proposed drive-through facility will be contained completely on-site at all times.

[c] All customer transactions in the drive-through lane shall be accomplished in six minutes or less from the time of ingress to the time of egress.

[3] Drive-through facilities shall have one stacking lane only, unless the applicant can demonstrate a need for a second lane to facilitate traffic flow. No more than two stacking lanes shall be permitted.

[4] Any outdoor service facilities, including, but not limited to, stacking lanes and transaction windows, shall not be adjoining residentially used or zoned property.

[5] Each stacking lane shall provide a minimum total of eight stacking spaces, one of which shall be placed after the transaction space.

[6] Each stacking space shall be a minimum of 20 feet long and 10 feet wide in straight portions of the stacking lane. Spaces in curved portions of the stacking lane shall be 12 feet wide.

[7] Entrances to stacking lane(s) shall be clearly marked and a minimum of 60 feet from a roadway intersection. The distance shall be measured from the property line along the road to the beginning of the entrance.

[8] Stacking lanes shall not enter or exit directly into a public right-of-way.

[9] Stacking lanes shall be designed to prevent circulation congestion and conflicts, both on-site and on adjacent public streets. They shall be clearly delineated from traffic aisles, other stacking lanes, parking areas and on-site pedestrian circulation through striping, curbing, landscaping, alternative paving color and/or materials or comparable means. Additionally, they shall be designed so as not to impede or impair:

[a] Access into or out of parking spaces;

[b] Vehicular or pedestrian traffic movement;

[c] Required loading and trash storage areas and operations.

[10] If a separate stacking lane is curbed, an emergency bypass or exit shall be provided.

[11] The intersection of stacking lanes and walk-in customer access shall be provided with a marked crosswalk and be located at a reasonable distance from any access connections and/or transaction windows.

[12] The use of order boards is prohibited.

[13] Speakers, if used, shall not be audible at the residential property line.

[14] Drive-through facilities determined by the Zoning Board of Appeals to be legally existing on the date of the enactment herein shall be deemed a nonconforming use. Any change in the nature or type of business operated on the premises shall require conformance to the provisions of this Code, including an application for a special permit as detailed in this subsection, § 306-39B(2)(g).

[15] The Board of Zoning Appeals has the power to regulate the hours of operation of drive-through facilities based upon the impacts of said use to nearby properties and the general standards for special use permits contained in § 306-39B(1) and specific standards where relevant and upon the evidence submitted in the record of the public hearing and upon a consideration of such other relevant and material matters as may otherwise be permitted by law.

(i) Commercial catering establishments.

[Added 11-6-2006 by L.L. No. 10-2006]

[1] Applicants shall provide a plan for the disposal of sewage and kitchen wastes, sized to the maximum customer capacity of the restaurant.

[2] Applicants shall demonstrate there will be no impacts from noise or odors on nearby residential property.

[3] Applicants shall maintain such other licenses or permits as may be required by law.

[4] Permits for commercial catering establishments shall be valid for a period of three years of the date of issuance, unless sooner revoked after a public hearing by the Village Board pursuant to § 306-39B(2)(k)[5] for violations of this or other sections of the Code of the Village of Northport or the rules, regulations and laws of any other agency having jurisdiction.

[5] A commercial catering establishment shall forfeit and suffer revocation of such authorization after a public hearing by the Village Board pursuant to § 306-39B(2)(k)[5], and no further authorization shall be granted for any food establishment occupying the same premises or location, for a period of two years of the revocation, in the event of the following:

[a] Upon conviction, by plea or otherwise, of three separate violations of Chapter 200 of the Code of the Village of Northport, if the violations occur within any twelve-month period of time;

[b] Upon conviction, by plea or otherwise, of two violations of selling or serving alcoholic beverages to minors, if the violations occur within any twelve-month period of time; or

[c] Upon conviction, by plea or otherwise, of two separate violations of the New York State Uniform Fire Prevention and Building Code, including but not limited to the absence of a valid public assembly permit and exceeding the maximum number of occupants permitted within the assembly space as established by the Code Compliance Director, if the violations occur within any twelve-month period of time.

[6] Nothing contained herein shall be construed to limit the right of the Village of Northport to pursue enforcement of this section by an action in law or equity and to recover the cost of attorneys' fees in any enforcement proceeding.

[7] Permit renewal.

[a] At least 90 days before the expiration of the permit period, an applicant may apply to the Board of Zoning Appeals for a renewal of the permit. If there has been no physical alteration to the land, building or structure for which a renewal is required, or change in use, occupancy or ownership, then in that event, the documents previously filed on the original application will be deemed incorporated in the application for a renewal. An applicant seeking such incorporation shall submit a sworn verification that no changes or alterations have been made. The Village may conduct an inspection, on due notice, to verify the contents of such sworn verification prior to a public hearing.

[b] After a public hearing held in accordance with § 306-38C herein, the Village Board, in its discretion, may refuse to renew a permit where there are, or have been during the permit period, any violations by the applicant of the Code of the Village of Northport or the rules, regulations and laws of any other agency having jurisdiction relating to the permit previously issued. Additionally, the Board may alter or revise the criteria, conditions or restrictions of a previously issued permit.

[8] Revocation hearing.

[a] The Village Board may revoke a permit issued hereunder only after a public hearing on notice to the permit holder. Such notice shall contain the time, date and place of the public hearing and written notice of the charges. Service of the notice shall be deemed proper if personally delivered to the permit holder, or delivered to the person in charge at the subject premises, or mailed by certified mail, return receipt requested, to the last known address of the permit holder, within 10 days of the public hearing. The permit holder may present testimony and question opposing witnesses during the hearing.

[b] Notice of revocation. In the event that a permit is revoked by the Village Board, notice of revocation shall be delivered to the permit holder in the same manner as set forth in Subsection B(2)(k)[8](a) above. Such notice shall state in writing the reasons for the revocation.

[c] No permit shall be revoked under this section unless a resolution is passed by a concurring majority vote of the Village Board of Trustees. The decision of the Board shall be filed with the Village Clerk and becomes final.

(j) Convenience store as an accessory use.

[Added 11-6-2006 by L.L. No. 10-2006]

[1] The applicant shall demonstrate a need for the accessory use based on economic hardship, i.e., the convenience store accessory is required to support the economic viability of the primary use.

[2] The convenience store portion of the use shall be limited to 200 square feet or less.

[3] There shall be no food preparation; however, appliances for hot beverages shall be allowed.

(k) Food shop with limited-service restaurant.

[Added 11-6-2006 by L.L. No. 10-2006]

[1] Food shops with limited restaurant service shall be permitted only in the Highway Business District.

[2] On-premises seating shall be limited to 16.

[3] When food is to be prepared on-premises, applicants shall provide a plan for the disposal of sewage and kitchen wastes, sized to the maximum customer capacity of the restaurant.

[4] Applicants shall demonstrate there will be no impacts from noise or odors on nearby residential property.

[5] Applicants shall maintain such other licenses or permits as may be required by law.

[6] The provisions with respect to the revocation of permits for commercial catering establishments, set forth above in § 306-39B(2)(i)[5] and [8], shall also apply.

(l) Wireless communication facilities.

[Added 11-4-2010 by L.L. No. 9-2010]

[1] Legislative intent. The Board of Trustees of the Incorporated Village of Northport hereby determines that it is in the best interests of the residents of the Village to set forth specific regulations establishing standards for the safe provision of the wireless communication facilities specified herein, consistent with applicable federal and state laws, statutes, rules and regulations, in order to:

[a] Protect the health, safety and welfare of the residents of the Village.

[b] Protect natural features, aesthetics and residential character of the neighborhoods within the Village and the efficient and orderly development of land uses from potential adverse impacts.

[c] Promote and encourage the location of these devices in nonresidential areas of the Village.

[d] Minimize the total number of such devices constructed throughout the Village within functional limits.

[e] Promote and encourage joint use of such new and existing devices and discourage the erection of such devices for single users.

[f] Promote and encourage the location of such devices, to the extent possible, in areas where adverse impacts on the surrounding neighborhoods is minimized.

[g] Promote and encourage the configuration of such devices in a manner that minimizes adverse visual impacts through careful design, siting, landscape, screening and innovative camouflaging techniques.

[h] Promote the ability of providers of services related to such devices to supply such services as effectively and efficiently as possible.

[i] Prohibit potential damage to adjacent and/or nearby properties from collapse or failure of such devices through adequate engineering and siting requirements.

[j] Regulate all wireless communication facilities fairly and nondiscriminately among and between the various companies engaged in constructing and/or operating wireless communication facilities within the boundaries of the Incorporated Village of Northport.

[2] Definitions and word usage.

[a] Definitions. Unless otherwise stated in the section where the term is used herein, the meanings of terms used in this chapter shall be as stated below:

ACCESSORY FACILITY

Includes any building or other structure which is accessory to the principal use, being subordinate in size, area, extent and purpose to the principal use, and located on the same lot as the principal use.

ANTENNA and/or BEACON

Includes any device that incorporates a system of electrical conductors involved in transmitting or receiving radio frequency waves, including but not limited to radio navigation, radio and television frequencies (excluding radar), wireless and microwave communications, generally ranging from 10 hertz to 300,000 megahertz, and/or used in communications that radiate or capture electromagnetic waves, digital signals, analog signals or other communications signals.

COLLOCATION

The use of any communication, transmission and/or reception antennae and/or towers, radio television and/or telecommunications beacons to carry two or more antennae by two or more service providers.

DEVICE(S)

Includes wireless communication facility, tower, monopole, antenna, beacon, and accessory facility as defined herein.

FAA

The Federal Aviation Administration of the United States.

FCC

The Federal Communications Commission of the United States.

HEIGHT

The distance measured from the finished mean grade of the parcel to the highest point on the tower or other structure, including the base pad and any antenna.

INCORPORATED VILLAGE OF NORTHPORT AND ANY SUBDIVISION THEREOF

Includes the government of the Incorporated Village of Northport, as well as its various departments, agencies and all other facets of the Village government or its subdivisions.

PREEXISTING TOWERS, MONOPOLES AND ANTENNAE

Includes any and all towers or antennae possessing a valid, current and proper building permit and/or special use permit issued prior to the effective date of this section.

TOWER, MONOPOLE

Includes any structure designed and constructed primarily for the purpose of supporting one or more antennae for telephone, television, radio and similar communication purposes, including self-supporting lattice towers, guyed towers or monopole towers, radio and television transmission and reception towers, microwave towers, common-carrier towers, cellular telephone towers, alternative tower structures and similar structures, inclusive of the structure and any support systems appurtenant thereto.

WIRELESS COMMUNICATION FACILITY

Includes transmission and/or reception antennae and/or towers, monopoles, boxes, radio, television and/or telecommunications beacons, and radio or television stations, including accessory facilities and structures and any device not otherwise defined herein the purpose of which is to facilitate the wireless transmission of voice, data, images or other forms of wireless communication.

[b] Word usage. When not inconsistent with the context, the present tense shall include the future, and words used in the plural shall include the singular and vice versa. Furthermore, a masculine pronoun shall include the feminine. "Shall" is mandatory; "may" is permissive.

[c] Ambiguity. Terms not defined in this article, or terms found to be ambiguous or improperly defined in this section, shall be defined by the Act, or appropriate rules and regulations, pursuant thereto.

[3] Exceptions. Nothing herein shall be construed to apply to, prohibit, regulate or otherwise affect the erection, maintenance or utilization of the following uses, including antennae and support structures, which are deemed to be permitted uses and shall not be subject to the issuance of a special use permit.

[a] All antennae which are accessory to permitted residential uses and are mounted on the residential dwelling without a tower.

[b] Such uses that are licensed to operate as amateur radio stations by the Federal Communications Commission, pursuant to 47 CFR 97.

[4] General provisions.

[a] Special use permit required. No wireless communication facility or any related or accessory structures may be erected without first obtaining a special use permit from the Board of Zoning Appeals, which shall apply the general standards for special use permits set forth in Village Code § 306-39 and the specific standards set forth in § 306-239B(2)(l). The Board of Zoning Appeals shall give due consideration to the Incorporated Village of Northport's existing land uses and development, environmentally sensitive areas and other appropriate factors in approving the issuance of a special use permit for the siting of communication, transmission and/or reception antennae and/or towers, radio, television and/or telecommunications beacons and radio or television stations.

[b] Zoning. Such uses shall only be permitted within the commercial and industrial zoning districts of the Incorporated Village of Northport, unless special circumstances demonstrate by clear and convincing proof that a communications system cannot properly function without the location of such a use in a specific residential area.

[c] Principal and accessory use. Such uses may be considered either principal or accessory uses, in that a different existing use and/or an existing structure on the same lot shall not preclude the installation of an antenna or wireless communication facility on such lot.

[d] Inventory. Any application for such uses shall include an inventory of all existing like uses, or sites approved for like uses, that are either within the jurisdiction of the Village or within one mile of the border thereof, including specific information about the location, height and design of each wireless communication facility, compiled by the applicant from municipal records. Applicant shall be required to prove that existing wireless communication facilities are not adequate to remedy any gaps in the applicant's coverage.

[e] (Reserved)[7]

[7] Editor's Note: Former Subsection B(2)(l)[4][e], pertaining to aesthetic requirements, was repealed 9-1-2020 by L.L. No. 2-2020.

[f] Multiple user plans. Service providers submitting a single application for the approval of collocation of such devices for multiple users shall be given priority status in a fast-track review process.

[g] In addition to complying with the requirements of this chapter, wireless communication facilities located or proposed to be located on property owned, leased or otherwise controlled by the Incorporated Village of Northport or any subdivision thereof must also obtain a license or lease issued by the Board of Trustees of the Village of Northport, which shall include payment to the Village of the fair and reasonable value of the use of public property. Application to the Board of Trustees must be made simultaneously with the application for the special use permit to the Board of Zoning Appeals. The failure to satisfy this requirement shall result in a stay of all proceedings until all required filings are made.

[h] No wireless communication facilities may be located within the boundaries of the Village of Northport unless the applicant demonstrates a need for such facilities. In evaluating whether there is a need for the proposed facilities, the Board of Zoning Appeals shall apply a standard for coverage that is reasonably necessary to permit voice, data and image transmissions intended to provide consistent coverage over substantially all of the intended areas.

[i] Applicants shall be required to pay an application fee of $2,500 for each location on which a wireless communication facility is proposed to be located and shall also be responsible for payment of expenses as provided for in § 147-4.[8]

[8] Editor's Note: Former Subsection B(2)(l)[4][j], pertaining to special use permits, which immediately followed this subsection,, was repealed 9-1-2020 by L.L. No. 2-2020.

[5] Applications. Applications for special use permits under this section shall include the following (all of which shall be certified or sworn to as accurate by qualified persons):

[a] Certification by a qualified professional setting forth that such use meets or exceeds current standard regulations of the FAA, FCC and any other state or federal agency having proper authority.

[b] A scaled site plan which meets all the site plan requirements of the Code of the Incorporated Village of Northport and any applicable regulations.

[c] Delineation of all setback distances between the proposed use and all adjoining structures and residentially zoned or developed properties.

[d] Delineation of all distances from other like uses described in the inventory of existing sites submitted with the application shall be shown on a site plan or map, identifying the type of construction of the existing uses and the owner/operator of any such existing uses, if same can be determined, compiled from municipal records by the applicant.

[e] A written description of the application's compliance with all applicable requirements of this section and all applicable federal, state and local laws.

[f] A notarized statement by the applicant as to whether construction of the proposed use will accommodate collocation of additional antennae for future users.

[g] A description of the suitability or unsuitability of existing like uses, other structures and/or alternative technology that are available in place of the proposed structure and the uses contemplated for the proposed structure.

[h] All information required for a special use permit in this chapter.

[i] Applicants are required to submit with their application documented reports, affidavits and studies that establish the need for the proposed facility in the location(s) desired, including evidence to support a request to locate the facilities on residentially zoned properties.

[j] Applicants are required to submit with their application documented reports, affidavits and studies to establish that the proposed facilities will comply with the federally established limit for RF emissions.

[6] General review. The Zoning Board shall consider the following factors in determining whether to issue a special use permit, in addition to the standards for consideration of special use permit applications set forth in this chapter:

[a] Height of the proposed structure.

[b] Proximity of the proposed use to residential structures and residential district boundaries.

[c] Nature of existing and/or proposed uses on adjacent and nearby properties.

[d] Site and/or surrounding topography.

[e] Surrounding tree coverage and foliage.

[f] Design of the structure, with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness.

[g] Proposed ingress and egress.

[h] Availability of suitable existing uses or other structures or alternative technologies not requiring the use of new structures; the Zoning Board should receive and review evidence from the applicant proving that existing facilities are not adequate to remedy the applicant's claimed gap in coverage.

[i] Applicant is required provide sufficient evidence to establish that there is no suitable location for the proposed facility on nonresidential property, including providing an inventory of applicant's efforts to obtain a suitable location on such property and the results of all testing to measure the suitability of the subject site and alternative sites.

[7] Review or alternatives.

[a] No application for such a special use permit shall be granted unless the applicant demonstrates to the reasonable satisfaction of the Zoning Board of Appeals that no existing use, structure or alternative technology not requiring new construction can accommodate the applicant's proposed use.

[b] An applicant shall submit any information requested by the Zoning Board of Appeals relating thereto. Such evidence may consist of any or all of the following:

[i] That no suitable existing uses or structures are located within the geographic area which meet the applicant's engineering requirements.

[ii] That the fees, costs or contractual provisions required by the owner of an existing like use of structure in order to share it, or adapt it for sharing, are unreasonable. Costs exceeding new use development are presumed to be unreasonable.

[iii] That alternative technologies not requiring the use of towers or structures, such as a cable microcell network using multiple low-powered transmitters/receivers attached to a wireline system, is unsuitable. Costs of alternative technology that exceed new tower or antenna development shall not be presumed to render the technology unsuitable.

[8] Conditions. The granting of a special use permit herein shall comply with the following conditions:

[a] Setbacks. The following setback requirements shall apply to all such uses for which a special use permit is required:

[i] Wireless communication facilities shall be set back from any adjoining lot line a distance equal to at least 150% of the height of the facility in order to provide a safe fall-zone; this requirement may be varied only if the Board finds that the granting of a variance from this requirement will not create an unsafe condition.

[ii] All structures shall satisfy minimum zoning district setback requirements in the district in which it is located.

[b] Distance between towers. The required distance between such uses shall be a minimum of 2,000 feet, measured by drawing or following a straight line between the base of any existing like use and the base of the proposed use, delineated on a map or site plan. Said distance requirement may be reduced by the Zoning Board of Appeals only after a finding that a specific application merits such a reduction and closer siting of such uses is warranted due to reception/transmission limitations caused by topographical interference.

[c] Security fencing. Such uses shall be surrounded by security fencing not less than eight feet in height and shall be equipped with appropriate anticlimbing devices.

[d] Landscaping.

[i] All such uses shall be landscaped with a buffer or plant materials sufficient to screen the view of such uses from residential property, consisting of at least one row of mixed evergreen shrubs and trees capable of forming a hedge at least eight feet in height.

[ii] Existing mature tree growth and natural land forms and topography at the site shall be preserved to the maximum extent possible.

[e] Abandonment. Any such use that is not operated for a continuous period of 12 months shall be deemed abandoned, and the owner thereof shall be responsible for removal of all structures within 90 days of the issuance of a notice by the Village declaring the facilities abandoned and directing removal, and upon failure to do so the Village may take such action at the owner's expense.

[f] Nonconforming uses. Such uses lawfully existing and operating prior to the effective date of this section shall be permitted as they presently exist, including routine maintenance and reconstruction in like form and height, excluding substantive change, which will require compliance with the requirements of this section.

C. Certification of legal nonconforming uses. To hear application for a determination of the status of any use of land or buildings as a legal nonconforming use, to decide such questions and to issue certifications of such status.

D. To hear direct applications for variances of any of the provisions of this chapter and to decide the same in accordance with Village Law § 7-712-b.

[Amended 8-17-1999 by L.L. No. 12-1999]

E. Modification of parking space and unloading space requirements. Upon application, the Board of Zoning Appeals may modify or waive any and all parking space and/or unloading space requirements as follows:

(1) For all business districts, if it determines that the shape or topography of the lot on which the building is located makes it impracticable to provide sufficient parking or unloading spaces thereon, the Board may permit the spaces unprovided thereon to be located on any lot within 500 feet of the street frontage of the building.

(2) For the Central Business A and B Districts, the Board of Zoning Appeals may reduce, modify or waive any parking space or unloading space requirements of this chapter if it first determines that:

(a) The shape or topography of the lot on which the building is located makes it impracticable to provide sufficient parking or unloading spaces thereon.

(b) Alternate sites as prescribed in Subsection E(1) of this section are unavailable.

[Amended 6-7-1977 by L.L. No. 13-1977]

(c) Existing curb or municipal parking in the vicinity of the building is capable of accommodating the vehicles reasonably expected to be parked or unloaded.

(d) Failure to provide minimum off-street parking or unloading spaces will not contribute unduly to traffic congestion.

F. Extensions or changes of legal nonconforming uses shall be permitted when:

[Amended 11-16-1976 by L.L. No. 14-1976]

(1) Practical difficulties prevail in operating the premises or structures in the presently existing nonconforming manner, and that the proposed extension or remodeling would constitute a reasonable adjustment of the existing nonconforming use.

(2) The proposed extension or remodeling will reduce the deleterious effect on the neighborhood of the existing nonconforming use. In determining deleterious effect, the Board of Zoning Appeals shall take into consideration, among other things, traffic generated, nuisance characteristics, hours and manner of operation, total ground area covered by structures and the appearance and condition of premises.

(3) The proposed extension or remodeling will not be more incompatible with or adversely alter the nature and character of the neighborhood and neighborhood structures, or prejudice value of adjoining properties.

(4) Adequate on-site parking and loading space will be provided for all potential users.

(5) The proposed extension or remodeling will not cause or increase traffic congestion or traffic hazards and will not unduly restrict fire and police protection of the premises.

(6) In addition, the Board of Zoning Appeals in granting a special use permit under this section may also prescribe such further conditions or restrictions with respect to both the proposed extension or remodeling and the existing nonconforming structures or use as in its opinion will increase the compatibility of the nonconforming use, as extended or remodeled, with the general neighborhood, including but not limited to landscaping, redecoration, structural improvements, manner of operation and elimination of offensive uses or procedures.[9]

[9] Editor's Note: Former Subsection G, pertaining to referral to the Planning Board and Architectural Review and Historic Board, which immediately followed this subsection, was repealed 9-1-2020 by L.L. No. 2-2020.

§ 306-40 Fees.

[Amended 4-2-1975 by L.L. No. 4-1975; 8-17-1999 by L.L. No. 12-1999]

There shall be paid to the Village Clerk, simultaneously with the filing of an application for a permit, variance or certification of nonconforming use or location, and with the filing of a notice of appeal, an application or filing fee as set forth from time to time by resolution of the Board of Trustees; see Chapter 147, Fees. No application or notice shall be considered as filed until such fee is paid.

§ 306-41 Voting.

[Amended 8-17-1999 by L.L. No. 12-1999]

The concurring vote of a majority of the members of the Board shall be necessary to reverse any order, requirement, decision or determination of any administrative official, or to decide in favor of the applicant any matter upon which it is required to pass under this chapter or to effect any variation in this chapter. However, in passing upon any application or when considering the issuance of a permit for a fairground or carnival[1] use of premises and a written protest to the granting of such a permit signed by the assessed owners of more than 20% of the properties located within a distance of 200 feet from any part of the premises for which such a permit is sought, is presented to or filed with the Board, then such a permit may be granted only upon the unanimous vote of the Board members present at the hearing at which the application is considered.

[1] Editor's Note: See § 306-39B(2)(e).

§ 306-42 Procedure.

A. The Board of Zoning Appeals may establish general rules of procedure which shall govern all proceedings before it. In addition, the Board may prescribe the manner and form in which all matters must be presented to it and, if it so prescribes, all papers shall conform to the prescribed forms and contain all specified information.

B. Every variance, special permit or conditional use granted by the Board of Zoning Appeals pursuant to the provisions of this chapter shall become null and void and have no further force and effect unless, within 180 days after the filing of the decision of the Board with the Village Clerk, the variance, special permit and/or conditional use is commenced, implemented and/or constructed within said period of time. Upon application to the Board of Zoning Appeals without the requirement of an additional filing fee, the applicant may request an extension of time for good cause. Said application shall be treated pursuant to the procedures established herein for appeals from a decision of the Code Compliance Director. Such an application to extend the one-hundred-eighty-day period shall be deemed timely if the same is applied for prior to the expiration of the said first one-hundred-eighty-day period.

[Added 8-4-1981 by L.L. No. 8-1981]