The responsibility of administering and enforcing
the provisions of this chapter is hereby conferred upon the Building
Inspector and his/her duly authorized assistants, who shall have the
powers conferred upon him/her by this chapter, those as may be reasonably
implied therefrom and those powers conferred upon him/her by other
applicable laws. The Building Inspector and his/her duly authorized
assistants shall be appointed by the Town Board and receive such compensation
as determined by the Town Board. All references to duties and/or authority
of the Building Inspector shall be deemed to also include any duly
authorized assistants.
A.
Applications and permits. It shall be the duty of
the Building Inspector, or his/her duly authorized assistants, to
process applications and issue the permits required by this chapter.
B.
Inspection and review. It shall also be the duty of
the Building Inspector, or his/her duly authorized assistants, to
cause any plans, buildings or premises to be examined or inspected
so as to determine whether or not they are in violation of the provisions
of this chapter. He/she shall have the right to enter any building
or premises with the consent of the owner, or by a court order, during
reasonable hours in the course of his/her duties.
C.
Violations and written orders. When the Building Inspector
determines that any plans, buildings or premises are in violation
of the provisions of this chapter, he/she shall issue a written notice
of violation to the owner and/or other responsible party directing
that said violation be remedied. Said written notice shall specify
the nature of the violation found to exist, the remedy ordered, the
time permitted for such remedial action, the penalties and remedies
which may be invoked by the town and the violator's rights of appeal.
D.
Revocation of certificate of compliance. On service
of the above-described notice of violation, the certificate of compliance
for such building or use shall be held null and void. A new certificate
of compliance shall be required for any further use of such building
or premises.
E.
Records. The Building Inspector shall maintain a permanent
record of all matters considered and all action taken by him/her.
Such records shall form a part of the records of his/her office and
shall be available for the use of the Town Board and other officials
of the town. The records to be maintained shall include at least the
following:
(1)
Application file. A separate, permanent file shall
be established for each application for a permit required by this
chapter at the time said application is filed. Such file shall contain
one signed copy of the application and all supporting documents and
plans, notations regarding pertinent dates and fees, etc., one copy
of any resolution and/or decision of the Planning Board and/or Board
of Appeals adopted in connection with the application, and the date
the permit applied for was issued or denied by the Building Inspector,
together with a copy of such permit or denial.
(2)
Monthly report. The Building Inspector shall submit
a monthly written report for the Town Board. Said report shall cite
all actions taken by the Building Inspector, including all referrals
made by him/her, all permits and certificates issued and denied, all
complaints of violations received, all violations found by him/her,
and any action taken by him/her in connection with each such violation.
A copy of this monthly report shall also be provided by the Building
Inspector to the Tax Assessor, Planning Board and Board of Appeals.
The following certificates and permits are hereby
established for the equitable enforcement and administration of the
provisions of this chapter:
A.
Zoning permit. The Building Inspector is hereby empowered
to issue a zoning permit for any plans involving the construction
or alteration of a building or structure or part of any building or
structure, including signs, or the change in use of any land, building
or structure or part thereof, where he/she determines that such plans
comply with the provisions of this chapter. A zoning permit is not
a building permit. An applicant may need both permits.
B.
Temporary use permit. Upon written direction of the Planning Board, the Building Inspector is hereby empowered to issue a temporary use permit pursuant to §§ 235-54B and 235-63B(4). Except as otherwise provided in § 235-54B, a temporary use permit shall only be effective for a period not exceeding 12 months, and such permit may be extended by the Planning Board for an additional consecutive period not exceeding six months.
C.
Emergency housing permit. The Building Inspector is hereby empowered to issue a nonrenewable emergency housing permit when a dwelling unit is rendered uninhabitable (e.g., fire, flooding, etc.), for a period not exceeding one year in conformance with § 235-54B.
D.
Special use permit. The Building Inspector is hereby empowered to issue a special use permit when granted by the Planning Board as provided for in § 235-63.
E.
Certificate of compliance. The Building Inspector
is hereby empowered to issue a certificate of compliance certifying
that all provisions of this chapter have been complied with in respect
to the location and use of the building, structure or premises in
question.
A.
Application. Applications for zoning permits shall
be accompanied by a layout sketch, drawn to scale, showing the shape
and dimensions of the lot to be affected, the size and location of
all buildings or structures to be constructed, altered or extended
as well as unaffected structures that shall remain, the intended use
of each building or structure, the exact location of all utility and
other easements and rights-of-way, and any other information with
regard to the lot affected and neighboring lots as may be necessary
for compliance with requirements of this chapter. The applicant is
solely responsible for the accuracy of all information, data and site
plans submitted pursuant to this chapter. Four copies of the application,
together with the layout sketch, shall be submitted. The Building
Inspector shall carefully consider the application, layout sketch
and any supporting documents for compliance with this chapter and
either issue or deny the zoning permit in a timely manner.
B.
Issuance of zoning permit. The Building Inspector
shall issue a zoning permit only after the site plan, if required,
has been approved by the Planning Board and any required variances
and/or special use permits have been obtained.
[Amended 2-19-2003]
C.
Installation of foundation. The Building Inspector
shall be notified when the site is prepared for installation of the
foundation for any building or structure and shall inspect the site
to check the proposed location thereof.
D.
Completion of construction. A zoning permit shall
expire if construction is not substantially completed within a period
of one year from the date of said permit. The Building Inspector may
issue a six-month extension for good cause shown. Only two such extensions
shall be permitted.
E.
Location of permit. The zoning permit shall be located
in a place readily visible to the public during the construction process.
Fees may be charged for the processing of applications
for the various permits, amendments, and variances required and/or
permitted by the provisions of this chapter, together with site plan
review and planned unit developments. The fees shall be set by separate
resolution of the Town Board and may be changed from time to time
in the same manner.
No land shall be used, occupied or changed in
use and no building hereafter erected, altered, or extended shall
be used or changed in use until a certificate of compliance has been
issued by the Building Inspector in accordance with the provisions
of this chapter.
A.
Organization. The Town Board shall appoint five regular
members to the Zoning Board of Appeals in accordance with the provisions
of § 267 of the Town Law, and two alternate member(s) as
provided for by Local Law No. 1 of 2001, and shall designate the Chairperson
thereof. In the absence of a Chairperson the Board of Appeals may
designate a member to serve as Acting Chairperson. The term of office
for regular members shall be governed by the applicable provisions
of New York Town Law, and the term of office for the alternate member(s)
shall be two years. The Chairperson of the Board of Appeals may designate
an alternate member to substitute for a regular member when such member
is unable to participate on an application or matter before the Board.
When so designated, the alternate member shall possess all the powers
and responsibilities of a regular member. Such designation shall be
entered into the minutes of the initial Board of Appeals meeting at
which such substitution is made. All provisions of state law relating
to Board of Appeals member eligibility, vacancy in office, removal,
compatibility of office and service on other boards, as well as any
town requirements related to training, compensation and attendance,
shall also apply to alternate members.
[Amended 4-18-2001]
B.
Meetings, minutes and records. Meetings of the Zoning
Board of Appeals shall be open to the public to the extent provided
in Article 7 of the Public Officers Law. The Zoning Board of Appeals
shall keep minutes of its proceedings, showing the vote of each member
upon every question or, if absent or failing to vote, indicating such
fact, and shall also keep records of its examinations and other official
actions.
C.
Filing requirements. Every rule, regulation, amendment
or repeal thereof and every order, requirement, decision or determination
of the Zoning Board of Appeals shall be filed in the office of the
Town Clerk within five business days and shall be a public record.
D.
Hearing appeals. The Zoning Board of Appeals shall
hear and decide appeals from and review any order, requirement, decision,
interpretation or determination made by the Building Inspector. The
concurring vote of a majority of the entire Zoning Board of Appeals
shall be necessary to reverse any order, requirement, decision or
determination of the Building Inspector or to grant a use or area
variance. In those instances where, due to the location of the affected
property, a variance request is subject to review under General Municipal
Law § 239-m, a majority plus one vote of the entire Zoning
Board of Appeals is necessary to override a County Planning Board
recommendation of disapproval or approval with modification. Such
appeal may be taken by any person aggrieved or by an officer, department,
board or bureau of the town.
E.
Time of appeal.
(1)
Such appeal shall be taken within 60 days after the
filing of any order, requirement, decision, interpretation or determination
of the Building Inspector by filing with said official and with the
Town Clerk a notice of appeal specifying the grounds thereof and the
relief sought. Such notice of appeal shall be filed on forms available
from the Building Inspector or Town Clerk. The cost of sending or
publishing any notice relating to such appeal shall be borne by the
appealing party and shall be paid to the Town Clerk prior to the hearing
of such appeal.
(2)
An appeal shall stay all proceedings in furtherance
of the action appealed from, unless the Building Inspector from whom
the appeal is taken certifies to the Board of Appeals, after notice
of appeal shall have been filed with the Building Inspector, that
by reason of the facts stated in the certificate a stay would, in
his/her opinion, cause imminent peril to life or property, in which
case proceedings shall not be stayed otherwise then by a restraining
order which may be granted by the Board of Appeals or by a court of
record on application, on notice to the Building Inspector from whom
the appeal is taken and on due cause shown.
F.
Hearing on appeal.
(1)
A public hearing shall be held by the Zoning Board
of Appeals before deciding an appeal. Such public hearing shall be
advertised by publication in a paper of general circulation within
the town of a notice of such hearing at least five days prior to the
date thereof. When required by the provisions of § 239 of
the General Municipal Law, the Zoning Board of Appeals shall forward
the application to the County Planning Board for its review.
(2)
At least 30 days before the date of the public hearing,
unless such time limit is waived by the Planning Board, the Secretary
of the Zoning Board of Appeals shall transmit to the Planning Board
a copy of the notice of hearing and all pertinent information for
those appeals involving a use variance. The Planning Board shall inform
the Zoning Board of Appeals in writing of its advisory opinion (including
recommendations) prior to the hearing. Failure of the Planning Board
to inform the Zoning Board of Appeals within the allotted time shall
be deemed to signify no recommendation on the application.
(3)
At least 10 days before the date of the hearing, the
Zoning Board of Appeals shall send, by regular mail, a copy of the
notice of hearing to all Town of Batavia property owners whose property(ies)
is located within 250 feet of the property which is the subject of
the application when the property involved is located in an R District,
or within 500 feet when the involved property is located in any other
district.
G.
Time of decision. The Zoning Board of Appeals shall
decide upon an appeal within 62 days after the conduct of the public
hearing. Prior to rendering its decision the Board shall first complete
the SEQR process. Said time of decision may be extended by mutual
consent of the applicant and Zoning Board of Appeals.
H.
Filing of decision and notice. The decision of the
Zoning Board of Appeals on an appeal shall be filed in the office
of the Town Clerk within five business days after the day such decision
is rendered and a copy thereof mailed to the applicant by regular
mail.
I.
Permitted action by the Zoning Board of Appeals.
(1)
Interpretations, requirements, decisions and determinations.
The Zoning Board of Appeals may reverse or affirm, wholly or partially,
or may modify the order, requirement, decision, interpretation or
determination appealed from and shall make such order, requirement,
decision, interpretation or determination as in its opinion ought
to have been made.
(2)
Use variances.
(a)
The Zoning Board of Appeals, on appeal from
the decision or determination of the Building Inspector, shall have
the power to grant use variances authorizing a use of land which otherwise
would not be allowed or would be prohibited by this chapter.
(b)
No such use variance shall be granted by the
Zoning Board of Appeals without a showing by the applicant that applicable
zoning regulations and restrictions have caused unnecessary hardship.
In order to prove such unnecessary hardship, the applicant shall demonstrate
to the Zoning Board of Appeals that for each and every use allowed
under the zoning regulations for the particular district where the
property is located:
[1]
The applicant cannot realize a reasonable return,
provided that lack of return is substantial as demonstrated by competent
financial evidence;
[2]
The alleged hardship relating to the property
in question is unique and does not apply to a substantial portion
of the district or neighborhood;
[3]
The requested use variance, if granted, will
not alter the essential character of the neighborhood; and
[4]
The alleged hardship has not been self-created.
(c)
The Zoning Board of Appeals, in the granting
of use variances, shall grant the minimum variance that it shall deem
necessary and adequate to address the unnecessary hardship proven
by the applicant and at the same time preserve and protect the character
of the neighborhood and the health, safety and welfare of the community.
(3)
Area variances.
(a)
The Zoning Board of Appeals shall have the power,
upon appeal from a decision or determination of the zoning enforcement
officer, to grant area variances from the area or dimensional requirements
of this chapter.
(b)
In making its determination, the Zoning Board
of Appeals shall take into consideration the benefit to the applicant
if the variance is granted, as weighed against the detriment to the
health, safety and welfare of the neighborhood or community by such
grant. In making such determination, the Board shall also consider:
[1]
Whether an undesirable change will be produced
in the character of the neighborhood or a detriment to nearby properties
will be created by the granting of the area variance;
[2]
Whether the benefit sought by the applicant
can be achieved by some method, feasible for the applicant to pursue,
other than an area variance;
[3]
Whether the requested area variance is substantial;
[4]
Whether the proposed variance will have an adverse
effect or impact on the physical or environmental conditions in the
neighborhood or district; and
[5]
Whether the alleged difficulty was self-created,
which consideration shall be relevant to the decision of the Zoning
Board of Appeals but shall not necessarily preclude the granting of
the area variance.
(c)
The Zoning Board of Appeals, in the granting
of area variances, shall grant the minimum variance that it shall
deem necessary and adequate and at the same time preserve and protect
the character of the neighborhood and the health, safety and welfare
of the community.
(4)
Imposition of conditions. The Zoning Board of Appeals
shall, in the granting of both use variances and area variances, have
the authority to impose such reasonable conditions and restrictions
as are directly related to and incidental to the proposed use of the
property. Such conditions shall be consistent with the spirit and
intent of this chapter and shall be imposed for the purpose of minimizing
any adverse impact such variance may have on the neighborhood or community.
J.
Solar access. Pursuant to Chapter 742 of the Laws
of 1979, the siting of houses to take best advantage of solar energy
and/or the construction of residential solar equipment shall be considered
in the application of the provisions of this chapter.[1] Upon appeal pursuant to this section of this chapter the
Zoning Board of Appeals shall consider the specific conditions of
the case and may make provisions for, so far as conditions permit,
the accommodation of solar energy systems and equipment and access
to sunlight necessary therefor when hearing a request for an area
variance.
[1]
Editor's Note: See § 263 of the
Town Law.
K.
Rehearing. A motion for the Zoning Board of Appeals
to hold a rehearing to review any order, decision or determination
of the Board not previously reviewed may be made by any member of
the Board. A unanimous vote of all members of the Board then present
is required for such rehearing to occur. Such rehearing is subject
to the same notice provisions as an original hearing. Upon such rehearing
the Board may reverse, modify or annul its original order, decision
or determination upon the unanimous vote of all members then present,
provided the Board finds that the rights vested in persons acting
in good faith in reliance upon the reviewed order, decision or determination
will not be prejudiced thereby.
A.
Organization. The Town Board shall appoint seven members
to the Planning Board in accordance with the provisions of § 271
of the Town Law and two alternate member(s) as provided for by Local
Law No. 1 of 2001, and shall designate the Chairperson thereof. In
the absence of a Chairperson the Planning Board may designate a member
to serve as Acting Chairperson. The term of office for regular members
shall be governed by the applicable provisions of New York Town Law,
and the term of office for the alternate member(s) shall be two years.
The Chairperson of the Planning Board may designate an alternate member
to substitute for a regular member when such member is unable to participate
on an application or matter before the Board. When so designated,
the alternate member shall possess all the powers and responsibilities
of a regular member. Such designation shall be entered into the minutes
of the initial Planning Board meeting at which such substitution is
made. All provisions of state law relating to the Planning Board member
eligibility, vacancy in office, removal, compatibility of office and
service on other boards, as well as any town requirements related
to training, compensation and attendance, shall also apply to alternate
members.
[Amended 4-18-2001]
B.
Powers and duties:
(1)
Site plan review. Review of site plans in accordance with New York State Town Law § 274-a, as set forth in Subsection C of this section, for any application for a zoning permit other than those for single-family dwellings and their accessory uses and/or buildings unless otherwise required by this chapter (i.e., special use permit).
(2)
Special use permits. Granting of special use permits in accordance with New York State Town Law § 274-b as set forth in this chapter based upon the criteria set forth in Subsection D of this section.
(3)
Review use variances. Review use variance applications referred to the Planning Board in accordance with §§ 235-62F and at its discretion make a recommendation to the Zoning Board of Appeals.
(4)
Temporary uses and structures. Grant permits for temporary uses and structures only as follows, provided a public hearing has been held which meets the same notice requirements as set forth in Subsection D(3) of this section:
(a)
Except as otherwise provided in § 235-43A(1)(c), the Planning Board may direct the Building Inspector to issue a temporary use permit for a period of time not exceeding 12 months for incidental nonconforming uses and structures as follows:
(b)
Temporary use permits shall be conditioned upon
an agreement by the applicant to remove the use upon expiration of
the permit.
(c)
Temporary use permits may be reissued only once
for an additional consecutive period not exceeding six months.
C.
Site plan review. The Planning Board, at a regular
or special meeting, shall review and approve, approve with modification,
or disapprove a site plan in connection with any application for a
zoning permit other than those for single-family dwellings and their
accessory uses and/or buildings.
(1)
Notice and public hearing.
[Amended 2-19-2003]
(a)
The Planning Board shall notify all property
owners within the Town of Batavia who own land that is either contiguous
or directly across from the involved property. Such notice shall be
sent by regular mail, at least 10 days before the meeting. In those
instances when the Planning Board holds an optional public hearing
(See following subsection.) on a site plan review, this notice to
contiguous property owners is not required.
(b)
The Planning Board may, in its sole discretion,
hold a public hearing as part of the site plan review process. When
a public hearing is held as part of the site plan review, the public
hearing shall be held at a time fixed within 62 days from the date
of the application for site plan review is received by it and public
notice thereof shall be published in a newspaper of general circulation
in the Town at least five days prior to the date of the hearing. The
Planning Board shall mail a notice of the hearing to the applicant
at least 10 days before such hearing and also send, by regular mail,
a copy of the notice of hearing to all owners of property located
within 250 feet of the property which is the subject of the application
when the property involved is located in an R District, or 500 feet
when the involved property is located in any other district, at least
10 days before the date of the hearing. When necessary under § 239
of the General Municipal Law, the Planning Board shall forward the
site plan to the Genesee County Planning Board for its review prior
to taking any final action.
(2)
Submission of site plan and data. The applicant shall
submit to the Town Clerk 10 copies of a site plan and supporting data
in a form satisfactory to the Planning Board, including but not limited
to the following information presented in graphic form and accompanied
by a written text:
(a)
Survey of property showing existing features,
including contours, utility easements, large trees, buildings, uses,
structures, streets, rights-of-way, zoning and ownership of surrounding
property.
(b)
Layout sketch showing proposed lots, blocks,
building locations and land use area.
(c)
Traffic circulation, parking and loading spaces,
and pedestrian walks.
(d)
Landscaping plans, including site grading, landscape
design, open space and buffer zone.
(e)
Preliminary architectural drawings for buildings
to be constructed, floor plans, exterior elevations and sections.
(f)
Preliminary engineering plans, street improvements,
storm drainage, water supply and sanitary sewer facilities and fire
protection.
(g)
Engineering feasibility study of any anticipated
problem which may arise from the proposed development, as required
by the Planning Board.
(h)
Construction sequence and time schedule for
completion of each phase for buildings, parking and landscaped areas.
(i)
Description of proposed uses, anticipated hours
of operation, expected number of employees, and anticipated volume
of traffic generated.
(j)
Description of proposed measures to control
runoff and drainage from the site and, when required by the New York
State Department of Environmental Conservation and/or the SEQR process,
a stormwater management and erosion control plan.
(k)
A description of the proposed generation, storage
and/or disposal of hazardous materials and/or hazardous wastes on
site, including estimates of amounts involved and provisions for transport,
storage and environmental protection.
(l)
Any other permits or applications made to other
governmental agencies and any additional information requested by
the Planning Board.
(3)
Site plan review criteria. The Town Planning Board
shall review the site plan and supporting data before approval, approval
with modifications, or disapproval of such site plan, taking into
consideration the following:
(a)
Harmonious relationship between proposed uses
and existing adjacent uses.
(b)
Maximum safety of vehicular circulation between
the site and street, including emergency vehicle access.
(c)
Adequacy of interior circulation, parking and
loading facilities, with particular attention to pedestrian safety
and emergency vehicle access.
(d)
Adequacy of landscaping and setbacks to achieve
compatibility with, and protection of, adjacent residential uses.
(e)
Adequacy of municipal facilities to serve the
proposal, including streets, water supply and wastewater treatment
systems, stormwater control systems, and fire protection.
(f)
Protection of the aquifer and aquifer recharge
areas that provide drinking water for both private and municipal wells.
In evaluating the protection of the aquifer, aquifer recharge areas
and the water supplies, the Planning Board shall give consideration
to the simplicity, reliability, and feasibility of the control measures
proposed and the degree of threat to water quality that would result
if the control measures failed.
(4)
Area variances. Notwithstanding any provisions of
law to the contrary, where a proposed site plan contains one or more
features which do not comply with the zoning regulations, applications
may be made to the Zoning Board of Appeals for an area variance pursuant
to New York State Town Law § 274-a, without the necessity
of a decision or determination of an administrative official charged
with the enforcement of the zoning regulations.
(5)
Modifications and conditions.
(a)
The Planning Board may require changes or additions
in relation to yards, driveways, landscaping, buffer zones, etc.,
to ensure safety, to minimize traffic difficulties and to safeguard
adjacent properties. Should changes or additional facilities be required
by the Planning Board, final approval of the site plan shall be conditional
upon satisfactory compliance by the applicant in making the changes
or additions.
(b)
The Planning Board shall have the authority
to impose such reasonable conditions and restrictions as are directly
related to and incidental to a proposed site plan. Upon its approval
of said site plan, any such conditions must be met in connection with
the issuance of permits by applicable enforcement agents or officers
of the town.
(6)
Waiver of requirements. The Planning Board is empowered,
when reasonable, to waive any requirements for the approval, approval
with modifications or disapproval of site plans submitted for approval.
Any such waiver, which shall be subject to appropriate conditions
set forth in this chapter, may be exercised in the event any such
requirements are found to be not requisite in the interest of the
public health, safety or general welfare or inappropriate to a particular
site plan.
(7)
Reservation of parkland on site plans containing residential
units.
(a)
Before the Planning Board may approve a site
plan containing residential units, such site plan shall also show,
when required by the Planning Board or this chapter, a park or parks
suitably located for playground or other recreational purposes.
(b)
Land for park, playground or other recreational
purposes may not be required until the authorized Board has made a
finding that a proper case exists for requiring that a park or parks
be suitably located for playgrounds or other recreational purposes
within the town. Such findings shall include an evaluation of the
present and anticipated future needs for park and recreational facilities
in the town based on projected population growth to which the particular
site plan will contribute.
(c)
In the event the Planning Board makes a finding pursuant to Subsection C(7)(b) of this section that the proposed site plan presents a proper case for requiring a park or parks suitably located for playgrounds or other recreational purposes, but that a suitable park or parks of adequate size to meet the requirement cannot be properly located on such site plan, the Planning Board may require a sum of money in lieu thereof to be established by the Town Board. In making such determination of suitability, the Board shall assess the size and suitability of lands shown on the site plan which could be possible locations for park or recreational facilities, as well as practical factors, including whether there is a need for additional facilities in the immediate neighborhood. Any moneys required by the Planning Board in lieu of land for park, playground or other recreational purposes, pursuant to the provisions of this section, shall be deposited into a trust fund to be used by the town exclusively for park, playground or other recreational purposes, including the acquisition of property.
(d)
Notwithstanding the foregoing provisions of this Subsection C(7), if the land included in a site plan under review is a portion of a subdivision plat which has been reviewed and approved pursuant to New York State Town Law § 276, the Planning Board shall credit the applicant for any land set aside or money donated in lieu thereof under such subdivision plat approval. In the event of resubdivision of such plat, nothing shall preclude the additional reservation of parkland or money donated in lieu thereof.
(8)
Performance bond or letter of credit as a condition
of site plan approval. The Planning Board may require as a condition
of site plan approval that the applicant file a performance bond or
letter of credit in such amount as the Planning Board determines to
be in the public interest, to ensure that the proposed development
will be built in compliance with accepted plans. Any such bond must
be in a form acceptable to the Town Attorney for an amount approved
by the Town Board.
(9)
Performance standards. In all districts, uses are
not permitted which violate applicable county, state and/or federal
codes and regulations pertaining to environmental issues. The Planning
Board, under its powers of site plan review and approval, may, in
its discretion, reject any uses if it determines that insufficient
evidence has been submitted to show compliance with these environmental
standards. However, final responsibility for compliance with all environmental
laws and regulations lies with the applicant.
(10)
Decisions. The Planning Board shall decide any matter referred to it under this Subsection C within 62 days after the first regular monthly meeting of the Planning Board at least 10 days prior to which the site plan and all supporting data required by this article are submitted to the Town Clerk. Such time may be extended by mutual consent of the Planning Board and the developer. Prior to rendering its decision the Board shall first complete the SEQR process. In those instances where, due to the location of the affected property, a variance request is subject to review under General Municipal Law § 239-m, a majority plus one vote of the entire Planning Board is necessary to override a County Planning Board recommendation of disapproval or approval with modification. The decision of the Planning Board shall be filed in the office of the Town Clerk within five business days after such decision is rendered and a copy mailed to the applicant by regular mail.
(11)
Changes and revisions. Any applicant wishing
to make changes in an approved site plan shall submit a revised site
plan to the Planning Board for review and approval.
(12)
Revocation of permit. After a permit has been
issued following site plan review based upon either approval or approval
with modifications, a permit may be revoked by the authorizing Board
which granted the approval for said permit in the event that the permit
grantee deviates from or does not comply with the site plan exactly
as approved or with any modifications or conditions established by
the authorizing Board or in the event that, after full compliance
has been achieved, the permit grantee thereafter deviates from or
ceases to comply with the site plan exactly as approved or with any
modifications or conditions established by the authorizing Board.
The procedure for revocation of a permit shall be as follows:
[Added 9-19-2007 by L.L. No. 4-2007]
(a)
After notification in writing by the Zoning
Enforcement Officer of alleged violations, the authorizing Board shall
hold a public hearing to consider whether or not the permit grantee
is fully compliant with the approved site plan or has violated any
terms or conditions of said permit. The public hearing shall be held
only after the permit grantee has been notified by the Zoning Enforcement
Officer of said violations and has failed to correct said violations
within the time period established by the Zoning Enforcement Officer,
to be not less than 15 calendar days.
(b)
At least 10 calendar days before said public
hearing, a legal notice of said hearing shall be published in a newspaper
of general circulation in the Town of Batavia. Written notice of said
hearing shall also be mailed to the permit grantee by certified mail,
return receipt requested, and by regular first-class mail directed
to the last known address of the permit grantee.
D.
Special use permit. The Planning Board, at a regular
or special meeting, shall review and approve, approve with modification,
or disapprove an application for a special use permit. Uses requiring
a special use permit are those which are compatible with the general
spirit of this chapter if certain standards and conditions are met.
Each such use is listed in this chapter as a use permitted within
a zoning district upon the issuance of a special use permit. All provisions
of this chapter shall be followed, and the Planning Board must find
that the proposed implementation of such use is not inconsistent with
the public welfare. A special use permit may be subject to conditions
and safeguards imposed by the public welfare. Also, the Building Inspector
shall at least annually inspect the use of the property in question
to ensure compliance with conditions which have been imposed by the
Planning Board in issuing such special use permit and other applicable
provisions of this chapter.
(1)
Application. Applications for special use permits
shall be made in writing on the appropriate form obtained from the
Building Inspector. Four copies of each application, including site
plan, shall be submitted to the Building Inspector, who shall review
the application for completeness prior to forwarding it to the Town
Clerk and the Planning Board. One copy shall be retained by the Building
Inspector. Such site plan shall show the location of all buildings,
parking, access and circulation, open space, landscaping and other
information necessary to determine that the proposed special use complies
with the intent of this chapter.
(2)
Area variance. Where a proposed special use permit
contains one or more features which do not comply with this chapter,
application may be made to the Zoning Board of Appeals for an area
variance pursuant to § 274-b of Town Law without the necessity
of a decision or determination of the Building Inspector.
(3)
Notice and public hearing. The Planning Board shall
hold a public hearing as part of the special use permit process. The
public hearing shall be held at a time fixed within 62 days from the
date the application for a special use permit is received by the Board,
and public notice thereof shall be published in a newspaper of general
circulation in the town at least five days prior to the date of the
hearing. At least 10 days before such hearing, the Planning Board
shall mail a notice of the hearing to the applicant and also send,
by regular mail, a copy of the notice of hearing to all Town of Batavia
property owners whose property(ies) is located within 250 feet of
the property which is the subject of the application when the property
involved is located in an R District, or within 500 feet when the
involved property is located in any other district. When necessary
under § 239 of the General Municipal Law, the Planning Board
shall forward the site plan to the Genesee County Planning Board for
its review prior to taking any final action.
(4)
Conditions. The Planning Board shall have the authority
to impose such reasonable conditions and restrictions as are directly
related to and incidental to a proposed special use permit plan. Upon
its approval of said special use permit, any such conditions must
be met in connection with the issuance of the special use permit by
the Building Inspector.
(5)
Waiver of requirements. The Planning Board is empowered,
when reasonable, to waive any requirements, other than procedural
processes required by law, for the approval, approval with modifications
or disapproval of special use permits submitted for approval, except
that any modifications to dimensional requirements (setbacks, lot
size, etc.) shall require a variance from the Zoning Board of Appeals.
Any such waiver, which shall be subject to appropriate conditions
set forth in this chapter, may be exercised in the event any such
requirements are found to be not requisite in the interest of the
public health, safety or general welfare or inappropriate to a particular
special use permit.
[Amended 2-20-2008 by L.L. No. 2-2008]
(6)
Decisions. The Planning Board shall decide any matter referred to it under this Subsection D within 62 days after the public hearing. Such time may be extended by mutual consent of the Planning Board and the applicant. Prior to rendering its decision the Board shall first complete the SEQR process. In those instances where, due to the location of the affected property, a special use permit request is subject to review under General Municipal Law § 239-m, a majority plus one vote of the entire Planning Board is necessary to override a County Planning Board recommendation of disapproval or approval with modification. The decision of the Planning Board shall be filed in the office of the Town Clerk within five business days after such decision is rendered and a copy mailed to the applicant by regular mail.
(7)
Abandonment of special use permit. A special use permit
shall expire when there occurs a cessation of such use or activity,
for which said special use was originally issued, for a period of
one year. Upon evidence that a special use permit has been abandoned,
the Building Inspector shall issue a notice of abandonment to the
owner of record for the property by registered mail. If after 60 days
the owner has not provided satisfactory proof that the special use
did not cease, the Planning Board shall revoke the special use permit.
(8)
Standards applicable for all special use permits.
(a)
The Planning Board may issue a special use permit
only after it has found that all the following standards and conditions
have been satisfied, in addition to any other applicable standards
and conditions contained elsewhere in this chapter:
[1]
The location and size of such use and intensity
of the operations involved in or conducted therewith, its site layout
and its relation to access streets shall be such that both pedestrian
and vehicular traffic to and from the use and the assembly of persons
in connection therewith will not be hazardous and shall be in harmony
with the orderly development of the district.
[2]
The location, nature and height of buildings,
walls and fences will not discourage the appropriate development and
use of adjacent land and buildings nor impair their value.
[3]
The operation of any such use shall not be more
objectionable to nearby properties than would be the operation of
any permitted use.
[4]
The proposed use shall not cause undue noise,
vibration, odor, lighting glare, and unsightliness so as to detrimentally
impact on adjacent properties.
[5]
When a commercial or industrial special use
abuts a residential property, the Planning Board may find it necessary
to require screening of sufficient height and density (i.e., fences,
hedges, etc.) to reduce or eliminate the conflicting environmental
conditions previously mentioned.
[6]
Electrical disturbances shall not be caused
so as to disrupt radio or television communications in the immediate
area.
[7]
The proposed use shall meet the off-street parking
and loading requirements of similar uses.
[8]
Appropriate on-lot drainage shall be provided
so as to eliminate any potential on-site water related problems. Also,
the drainage systems created shall not detrimentally impact on adjacent
properties.
[9]
Traffic access to and from the use site, as
well as on-lot traffic circulation, shall be designed so as to reduce
traffic hazards. The Planning Board shall review and approve all such
proposals.
[10]
Such use shall be attractively landscaped. This
shall involve grading, seeding, and regular mowing of the front yard
area at a minimum.
(b)
A special use permit shall not be issued for
a use on a lot where there is an existing violation of this chapter
unrelated to the use which is the subject of the requested special
use permit, as determined by the Planning Board.
(c)
As a condition of all special use permits, right
of entry for inspection with reasonable notice shall be provided to
determine compliance with the conditions of said permit.
(d)
In addition to the general standards for special
permits as set forth herein, the Planning Board may, as a condition
of approval for any such use, establish any other additional standards,
conditions, and requirements it deems necessary or appropriate to
promote the public health, safety and welfare and to otherwise implement
the intent of this chapter.
(e)
The above standards are not intended to apply
to uses whose regulation has been preempted by the state or federal
government, i.e., mining.
(9)
(Reserved)
(10)
(Reserved)
(11)
(Reserved)
(12)
Revocation of special use permit. After a special
use permit has been issued following site plan review based upon either
approval or approval with modifications, a special use permit may
be revoked by the authorizing Board which granted the approval for
said special use permit in the event that the special use permit grantee
deviates from or does not comply with the site plan exactly as approved
or with any modifications or conditions established by the authorizing
Board or in the event that, after full compliance has been achieved,
the special use permit grantee thereafter deviates from or ceases
to comply with the site plan exactly as approved or with any modifications
or conditions established by the authorizing Board. The procedure
for revocation of a special use permit shall be as follows:
[Added 9-19-2007 by L.L. No. 4-2007]
(a)
After notification in writing by the Zoning
Enforcement Officer of alleged violations, the authorizing Board shall
hold a public hearing to consider whether or not the special use permit
grantee is fully compliant with the approved site plan or has violated
any terms or conditions of said special use permit. The public hearing
shall be held only after the special use permit grantee has been notified
by the Zoning Enforcement Officer of said violations, and has failed
to correct said violations within the time period established by the
Zoning Enforcement Officer, to be not less than 15 calendar days.
(b)
At least 10 calendar days before said public
hearing, a legal notice of said hearing shall be published in a newspaper
of general circulation in the Town of Batavia. Written notice of said
hearing shall also be mailed to the special use permit grantee by
certified mail, return receipt requested, and by regular first-class
mail directed to the last known address of the special use permit
grantee.
[1]
Editor's Note: Former § 235-64,
Artichitectural Review Board, was repealed 2-19-2003.
A.
It shall be unlawful for any person, firm or corporation
to construct, alter, repair, move, equip, use or occupy, or change
the use of, any building, structure, or land or part thereof in a
manner not permitted by this chapter or without the issuance of a
valid zoning permit or certificate of compliance as required by this
chapter.
B.
It shall be further unlawful for any person to fail
to comply with a written order of the Building Inspector within the
time fixed for compliance therewith.
C.
Appearance ticket. The Building Inspector may issue
an appearance ticket to any person who fails to respond to a notice
of violation and written order to correct the violation.
D.
It shall be unlawful for any owner, builder, architect,
tenant, contractor, subcontractor, construction superintendent or
their agents, or for any person taking part or assisting in the construction,
alteration, repair or use of any building, structure or land, to violate
any of the applicable provisions of this chapter or any lawful order,
notice, directive, permit or certificates issued or made hereunder.
E.
Any violation of this section and/or this chapter
shall be deemed an offense punishable by a fine and/or imprisonment
as set forth in § 268 of New York State Town Law. Each and
every week such violation continues shall be deemed a separate and
distinct violation.
F.
The Building Inspector may engage the Town Attorney
or any other attorney approved by the Town Board to initiate legal
action to enforce the provisions of this chapter.
G.
In addition to the foregoing remedies, the Town of
Batavia and/or its appropriate officials and authorities may maintain
an action for injunction to restrain, correct or abate any violation
of this chapter and/or maintain an action at law for damages sustained
as a result of any violation of this chapter and/or seek any other
remedy permitted by law, including Town Law § 268. Damages
may include, but not be limited to, the legal fees and court costs
expended or incurred by the town as a result of any legal proceedings
brought hereunder.
Whenever a violation of this chapter occurs,
any person may file a complaint in regard thereto. All such complaints
must be in writing, signed, and shall be filed with the Building Inspector,
who shall properly record such complaint, investigate it and take
appropriate action in a timely manner.
A.
The State Environmental Quality Review Act (SEQR)
requires that local governments examine the environmental impact of
all actions they permit, fund, or construct. Article 8 and Part 617
of Title 6 of the New York Code of Rules and Regulations (8 NYCRR
617) set forth the SEQR regulations in detail and should be reviewed
for compliance prior to undertaking any of the above-mentioned activities.
B.
As set forth in 8 NYCRR 617, determination of lead
agency status is one of the initial steps in the SEQR process. When
the Town is designated lead agency for a particular zoning action,
the following Boards (agencies) may typically be the lead agency for
the actions identified as follows:
C.
The SEQR process may extend the various procedural
time limits set forth throughout this chapter. For those actions taken
under this chapter subject to SEQR, all time frames and deadlines
otherwise set forth in this chapter may be delayed until a determination
of significance has been made and, if required, a draft environmental
impact statement has been filed.
