Town of Busti, NY
Chautauqua County
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The following uses are permitted by a special permit from the Town Board of the Town of Busti.
A. 
Vehicle service stations. Vehicle service stations shall be allowed in a Highway Commercial (HC) District on securing a special permit from the Town Board of the Town of Busti, provided that:
(1) 
Applicants for a special use permit to operate a vehicle service station shall submit the following:
(a) 
Name, address, telephone number of the applicant.
(b) 
A map showing the location of the premises for which such permit is sought and the existing or proposed location of the structures, including all underground tanks and storage items upon the premises.
(c) 
Name of the person, firm, corporation or association which will operate the vehicle service station if the permit is granted.
(d) 
Such other information as the Town Board shall request in order to have all facts necessary to render a decision.
(2) 
Upon the receipt of such application and any necessary supplementary information, the Town Board shall set a date for a public hearing in regard to the granting of such permit, and a notice of such public hearing shall be published in the official Town newspaper no earlier than 20 days and no later than 10 days before the date of such public hearing.
(3) 
At the time of the public hearing, the applicant must present to the Town Board an affidavit certifying that written notice of the public hearing was given by the applicant to all owners of real property, as shown on the latest completed assessment roll, within 500 feet of the premises for which a permit is sought. Such a notice must be given no earlier than 20 days and no less than 10 days before the date of such public hearing.
(4) 
No permit shall be granted for the operation of a vehicle service station unless the following requirements are complied with:
(a) 
No motor vehicle service station shall have a vehicular entrance closer than 200 feet to the entrance of a church, school, theater, hospital, public park, playground, library, public administrative building or fire station, such measurement shall be taken as the shortest distance between such entrances, across the street if the entrances are on opposite sides of the street, and along the street frontage of both entrances where both entrances are on the same side of the street within the square block.
(b) 
All motor vehicle service stations shall be so arranged and all gasoline pumps shall be so placed as to require all servicing on premises and outside of the public right-of-way; no gasoline pump shall be placed closer to any side property line than 50 feet and no closer to any street or highway than 35 feet.
(c) 
All fuel, oil or similar substance shall be placed at least 35 feet from any street or lot line. Underground gasoline tanks shall be located at least 35 feet from any street or highway right-of-way.
(d) 
A vehicle service station shall not be located within 100 feet of a residential district. The measurement shall be from the closest lot line to the closest lot lines.
(e) 
No vehicle service station shall be located on any lot of an area less than 1/2 acre and a continuous street frontage of not less than 150 feet.
(f) 
No junk shall be stored on the outside. Inoperative or disabled vehicles shall be placed on the premises for no longer than three weeks, and in no event shall more than four such vehicles be placed on the premises at any one time.
(g) 
There shall be no outside storage of supplies, tires, drums, motors and motor parts, except within a closed structure or fence which shall render such items not to be visible from off the property.
(5) 
In addition to meeting the aforesaid requirements, before a permit may be issued the Town Board must find that the public convenience and welfare will be substantially served and the appropriate use of the neighboring property will not be injured thereby and that the granting of a permit is in the best interest of the Town of Busti and its inhabitants.
B. 
Mobile home parks. Mobile home parks shall be permitted in CAMP (Conservation/Agricultural/Mobile Home Park District) on securing a special permit from the Town Board of the Town of Busti, provided that:
(1) 
Any person, as of January 1, 1982, operating a mobile home park may continue to do so without obtaining a special permit. Any such person or any person claiming a nonconforming use to operate such a mobile home park may, by providing sufficient proof of such prior operation of such nonconforming use, obtain a certificate of prior use from the Code Enforcement Officer. Any such person denied a certificate of prior use from the Code Enforcement Officer may appeal such denial from the Zoning Board of Appeals, which may issue such certificate if such right to such certificate is established. Any mobile home park which is discontinued for one year shall not be resumed by any person without the issuance of a special use permit.
(2) 
Applicants for a special use permit to operate a mobile home park shall submit the following:
(a) 
The name and address of the applicant.
(b) 
The interest of the applicant in a mobile home park.
(c) 
The location and legal description of the mobile home park, including a map showing the physical characteristics of the property, including typography, vegetation and wetlands.
(d) 
Complete plans and specifications of the proposed park, showing:
[1] 
The area and dimensions of the land;
[2] 
The number, location and size of all mobile home lots;
[3] 
The location of service buildings and any other proposed structure;
[4] 
The location and width of roadways and walkways;
[5] 
The location of water and sewer lines and riser pipe and approved plans from the County Department of Health and State Department of Environmental Conservation for sewage disposal;
[6] 
Plans and specifications for all buildings constructed or to be constructed within the mobile home park;
[7] 
Plans and specifications as to the water supply, refuse and sewer disposal facilities;
[8] 
The locations and details of lighting and electrical systems;
[9] 
The phasing of the development, if any; and
[10] 
Such other information as may be required by the Town Board to properly effectuate the purpose of this chapter.
(3) 
All applications shall be accompanied by an application fee of $1,000 (nonrefundable).[1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
(4) 
Upon the receipt of such application and any necessary supplementary information, the Town Board shall set a date for a public hearing in regard to the granting of such permit, and a notice of such public hearing shall be published in the official Town newspaper no earlier that 20 days and no later than 10 days before the date of such public hearing.
(5) 
At the time of the public hearing, the applicant must present to the Town Board an affidavit certifying that written notice of the public hearing was given by the applicant to all owners of real property, as shown on the latest completed assessment roll, within 500 feet of the premises for which said permit is sought. Such notice must be given no earlier than 20 days and no less than 10 days before the date of such public hearing.
(6) 
At the time of the public hearing, the applicant must present to the Town Board a statement from 50% of the owners of real property, as shown on the latest completed assessment roll, within 500 feet of the subject premises that such owners are in favor of granting such permit to the applicant. Such statement must be sworn and subscribed to by a notary public. (Such approval may not be required with renewal of application.)
(7) 
No permit shall be granted for the operation of a mobile home park unless the following basic requirements are complied with:
(a) 
A mobile home park shall not be established or created except on a tract of land used or intended to be used for the parking of not less than 20 mobile home units nor more than 60 mobile home units, together with the necessary improvements and facilities upon the land.
(b) 
Each mobile home lot shall meet the area and bulk requirements of the district in which it is located, except that the minimum lot area shall be 8,250 square feet for each mobile home unit; the minimum lot width for each mobile home unit shall be 75 feet; the maximum lot coverage shall be 35% of each mobile home lot; the minimum front dimension for each mobile home lot shall be 25 feet; the minimum side yard dimension for each mobile home lot shall be 15 feet, each; the minimum rear yard dimension for each mobile home lot shall be 25 feet; and the maximum building height shall be one story.
(c) 
No mobile home unit within any mobile home park shall be placed closer than 100 feet to any highway or public right-of-way.
(d) 
No mobile home shall be placed in any mobile home park until all facilities required pursuant to this section for at least 20 mobile homes shall have been installed.
(e) 
Each mobile home park shall be surrounded by a landscaped greenbelt for at least 50 feet from each lot line, which distance shall not be computed in meeting the area and bulk requirements.
(f) 
Interior drives shall be designed so as to prevent blockage of vehicles entering or leaving the mobile home site. Drives may be one-way or two-way. All accessways to any public street or highway shall be located at least 200 feet from the intersection or any street lines and shall be designed in a manner conducive to safe ingress and egress.
(g) 
All mobile home lots or berths shall abut on a road with a right-of-way of at least 50 feet having a paved all-weather cartway of not less than 20 feet in width for a two-way street and not less than 15 feet in width for a one-way street.
(h) 
A recreational area equal to at least 400 square feet for each mobile home berth shall be set aside and improved according to an approved recreation plan and shall not be located in any required setback, backyard or buffer area. The recreation plan shall be approved by the Town Board.
(i) 
Each mobile home, lot or berth shall contain a mobile home stand which will not heave, shift or settle unevenly under the weight of any mobile home as a result of any frost action, poor drainage, vibration or any other such forces. The material used in constructing the stand shall be durable and capable of supporting the expected load regardless of the weather. Reinforced concrete runways are recommended, but well-compacted gravel or bituminous concrete materials properly used are suitable.
(j) 
Exposed ground surfaces in all parts of every mobile home park shall be paved or covered by stones, screens or other solid materials or protected with a vegetative growth that is capable of preventing soil erosion and eliminating dust.
(k) 
All waste from showers, bathtubs, flushed toilets, urinals, lavatories, washing machines and slop sinks in service and other buildings shall be discharged into a sewage system approved by the Chautauqua County Health Department or its successor.
(l) 
Each mobile home owner shall be required to enclose the bottom portion of the mobile home with either a metal, plastic or wood skirt properly ventilated within 60 days after arrival in the park, pursuant to regulations of the park.
(m) 
All fuel, oil, storage tanks or cylinders shall be securely fastened in place and shall be located in the rear of the mobile home, not facing the driveway or public highway, and not located less than five feet from any mobile home exit. Supports or standards for fuel oil storage tanks must be of a noncombustible material.
(n) 
Fire shall be allowed in stoves, the incinerators and other equipment specifically designed for such purpose. Open fires are not permitted.
(o) 
All mobile homes, service and accessory buildings shall be connected to a central water system. Fire hydrants, if any, shall be located at least 500 feet from any mobile home, service building or any other accessory structure.
(p) 
Each mobile home berth shall be provided with an approved electrical system. Underground cables shall be required.
(q) 
A mobile home shall not be occupied for dwelling purposes unless it is properly placed on a mobile home stand and connected to water, sewage and electrical facilities.
(8) 
The person to whom a permit for a mobile home park is issued shall operate the park in compliance with this chapter and shall notify park occupants of all applicable provisions of this chapter.
(9) 
A special use permit granted to a person for the purpose of establishing a mobile home park shall be valid for a period of three years from issuance and may be renewed by the Town Board upon application of the person to whom such permit is issued after a public hearing is held, for which a notice of such hearing shall be published in the official newspaper of the Town not earlier than 20 days and not later than 10 days before the date of such hearing.
(10) 
Failure to comply with the provisions of this section shall constitute a basis for revocation by the Town Board of any permit granted hereunder. However, no special use permit for a mobile home park shall be revoked unless the person to whom it is issued shall have had an opportunity to be heard by the Town Board and the Town Board shall issue findings consistent with its decision.
C. 
Sawmills. A sawmill shall be allowed only in the CAMP District by securing a special use permit from the Town Board of the Town of Busti, provided that:
[Added 6-6-2016 by L.L. No. 1-2016[2]]
(1) 
No more than six special use permits for sawmills shall be permitted in the Town at any time. Special use permits issued pursuant to this section shall not be assignable or transferable.
(2) 
No special use permit shall issue unless the application complies with the following terms and conditions, which also shall be included as terms and conditions of the permit:
(a) 
A mill shall be located only on a lot at least 10 acres in size and the operator of the sawmill must use the same lot as his primary residence.
(b) 
Only mills using a band saw shall be permitted. The size of the band saw blade shall be no more than 1 1/2 inches by 18 feet and, whether using one or more engines, shall total no more than 80 horsepower.
(c) 
All cutting, sawing, grinding or other processing shall be conducted within a completely-enclosed building.
(d) 
Hours of operation shall be limited to between the hours of 7:00 a.m. and 5:00 p.m. on weekdays and 9:00 a.m. to 5:00 p.m. on Saturday. No Sunday nor holiday operations shall be permitted.
(e) 
The sawmill shall employ only the operator's immediate family plus one nonfamily employee.
(f) 
All buildings or other structures and all equipment or storage areas associated with the sawmill shall be located not less than 100 feet from any property line, nor less than 300 feet from any neighboring dwelling, and any new mill-related buildings constructed after the special use permit is issued shall also comply with the same setback requirements.
(g) 
No storage area for logs, sawn lumber or waste materials shall be located within 100 feet of any stream, other water body or well providing a source of potable water.
(h) 
The accumulation of waste materials in an on-site dump or landfill shall not be permitted. All waste materials shall be recycled or removed from the site in a timely fashion, but no less often than once per week. No waste materials shall be disposed of by burning.
(i) 
All fuel used for equipment shall be stored in a manner that meets all New York State requirements for fuel storage.
(j) 
All uses shall provide sufficiently long stacking lanes into the facility so that vehicles waiting will not back up on to adjacent streets.
(k) 
All access drives onto the site shall be paved for a distance of at least 100 feet or consist of a one-hundred-foot-long gravel section of driveway to help collect any mud that may have attached to a vehicle's wheels. The owner and/or operator shall be responsible for removing any mud from streets caused by persons traveling to and from the site.
(l) 
All transportation of logs and lumber shall comply with the applicable rules and regulations of New York State, including, but not limited to, those of the New York Department of Environmental Conservation and New York State Department of Transportation
(3) 
This section shall not apply to sawmills lawfully existing outside the CAMP District at the time of the adoption of the first Town of Busti Zoning Code in 1968, which may continue as nonconforming uses pursuant to and subject to Article X of this chapter. All other properties shall conform to the provisions hereof immediately upon the effective date of this local law.
(4) 
Any failure or omission on the part of the special use permit holder to carry out any condition or requirement of this section or to operate in accordance with the terms or requirements of any statute, local law, ordinance or regulation, may be deemed a violation of the Town of Busti Zoning Law and unless corrected in not more than 10 days following the service of written notice of such violation upon the permit-holder, may subject them to the penalties therein. Continued violations after written notice may result in revocation of the special use permit.
[2]
Editor's Note: This local law also provided for the redesignation of former Subsection C and Subsection D.
D. 
General provisions applicable to this section:
[Amended 6-6-2016 by L.L. No. 1-2016]
(1) 
No permit issued hereunder may be signed or assumed by any person, corporation, partnership or association.
E. 
Agribusiness and agritourism business. Agribusinesses and agritourism businesses shall be permitted in the Conservation/Residential (CR) and Conservation/Agricultural (CA) Districts on securing a special use permit from the Town Board of the Town of Busti, provided that:
[Added 10-16-2017 by L.L. No. 2-2017]
(1) 
An application for a special use permit to operate an agribusiness or agritourism business shall be submitted to the Code Enforcement Officer, which application must indicate the proposed hours of operation and be accompanied by a site plan which identifies parking areas and establishes minimum distances between any parking and neighboring property and shows the proposed location of all lighting.
(2) 
Upon receipt of a completed application with the required fee, the application shall be referred to the Planning Board for its review and comment. The Planning Board shall review the site plan to determine if the proposed site plan and hours of operation are satisfactory based upon the location of the proposed agribusiness and/or agritourism business and its proximity to other residential properties in the applicable zoning district. The Planning Board shall then forward the application together with their recommendations to the Town Board.
(3) 
The completed application with site plan along with the recommendations of the Planning Board shall then be forwarded to the Town Board. The Town Board shall review the application and order a public hearing, which notice of public hearing must be published at least five days prior to the public hearing. Written notice of the public hearing for all applications shall be provided to the owners of property within 500 feet of the proposed location of the agribusiness and/or agritourism business. Such written notice shall also advise property owners that written comments may be forwarded to the Town Board prior to the public hearing with comments that are accompanied by the name and address of the person providing the comments to be made part of the record.
(4) 
The Town Board will then determine whether the special use permit to conduct the agribusiness and/or the agritourism business shall be granted and may set forth specific conditions in such permit. The special permit shall be permanent but subject to revocation if the agribusiness or agritourism business is not operated in accordance with the conditions of the special use permit.
F. 
Wedding or private event facility. Wedding or private event facilities shall be permitted in the Conservation/Residential (CR) and Conservation/Agricultural (CA) Districts on securing a special use permit from the Town Board of the Town of Busti, provided that:
[Added 9-17-2018 by L.L. No. 2-2018]
(1) 
No vehicles associated with the event shall be permitted to be parked on public roadways. All vehicle parking shall be maintained "on site." "On site" is defined as at least 30 feet from the property boundaries of the parcel on which the event is permitted.
(2) 
One parking space for every three persons attending the event shall be provided for on-site parking. The Board may approve, in its discretion, the use of off-site parking as an alternative, with transportation to the site by attendees through a commercial transportation service.
(3) 
The general event area [the actual location(s) in which the gathering is to occur] shall be located 200 feet from adjacent owner's property lines. All activities associated with the use are to be included within the general event area, the only exception being the parking as allowed above.
(4) 
Sources of amplified sound including but not limited to recorded music, live musical performances, and spoken word shall commence no earlier than 12:00 noon and shall be terminated by 10:00 p.m. on Sunday through Thursday and at 12:00 midnight on Friday and Saturday nights.
(5) 
No overnight accommodations shall be allowed in temporary structures such as tents or recreational vehicles. Any venues which provide overnight accommodations must comply with all applicable codes and laws related to the provision of said accommodations.
(6) 
Adequate sanitary restroom facilities shall be provided on site.
(7) 
The Town Board recognizes that no regulation can anticipate every creative plan that may be devised, which, though not in strict compliance with the provisions of this subsection, nevertheless, is not objectionable. Accordingly, the Town Board is hereby empowered to grant relief to an applicant from the strict application of this subsection where the applicant provides sufficient grounds for a finding that the proposed use comports as much as feasible with the spirit and letter of this subsection and, though not in strict compliance therewith, remains aesthetically pleasing, promotes traffic safety, protects neighboring properties, and preserves property values within the Town of Busti.
G. 
Stand-alone accessory building. No accessory building ordinarily may be erected on a vacant lot. However, accessory buildings as stand-alone structures may be permitted, upon issuance of a special use permit and only in the Conservation/Residential (CR), Conservation/Agricultural (CA), and Conservation/Agricultural/Mobile Home Park (CAMP) Districts, subject to the following requirements:
[Added 9-17-2018 by L.L. No. 2-2018]
(1) 
The use of a stand-alone accessory building must be located on a lot of at least four acres.
(2) 
Notwithstanding any other provisions of the Town of Busti Zoning Law, front, side, and rear yard setbacks of the stand-alone accessory building shall be determined by the Town Board based upon site specific considerations and as part of the issuance of a special use permit.
(3) 
The stand-alone accessory building shall be of a size and design commensurate with the lot on which it is placed and with the surrounding neighborhood. There shall be no more than one stand-alone accessory building per lot.
(4) 
The structure must be demonstrated to have a tangible nexus and purpose related to the land itself. The stand-alone accessory building may not be used for commercial purposes. Typical allowable uses are as a storage for personal tools and recreational vehicles used on the property, gardening shed, sugar house or similar low-impact, rural use.
(5) 
No outdoor storage of any type shall occur on the lot.
(6) 
The use shall not interfere or conflict with the peaceful enjoyment of neighboring residential uses.
(7) 
In exercising its approval powers, the Town Board may, upon proper finding, impose such reasonable conditions relating to screening, buffering and other mitigative measures incidental to the application for a special use permit.
(8) 
Such other materials as the Town Board deems necessary upon which to determine the impact of such specially permitted use must be submitted.
(9) 
The Town Board recognizes that no regulation can anticipate every creative plan that may be devised, which, though not in strict compliance with the provisions of this subsection, nevertheless, is not objectionable. Accordingly, the Town Board is hereby empowered to grant relief to an applicant from the strict application of this subsection where the applicant provides sufficient grounds for a finding that the proposed use comports as much as feasible with the spirit and letter of this subsection and, though not in strict compliance therewith, remains aesthetically pleasing, promotes traffic safety, protects neighboring properties, and preserves property values within the Town of Busti.
A. 
Uses permitted in districts subject to the issuance of a special use permit by the Zoning Board of Appeals as set forth in Article IV shall be permitted only in conformity with:
(1) 
The provisions prescribed hereunder for each special use permit;
(2) 
All other applicable provisions for the district for which said use is permitted, unless such provision are waived by the Zoning Board of Appeals; and
(3) 
The provisions of Article XII relative to the issuance of such permits.
B. 
Camps, game farms, fish hatcheries, fishing reserves, and dog kennels. Camps, game farms, fish hatcheries and fishing reserves shall be allowed in CR, CAMP and CA Districts, and dog kennels shall be allowed in CA or CAMP Districts by securing a special permit from the Zoning Board of Appeals of the Town of Busti, provided that:
(1) 
No camp or building harboring game, fish or dog kennels shall be located closer than 100 feet from any property boundary line;
(2) 
The premises upon which any camp, game farm, fish hatchery, fishing reserve or dog kennels are located must be maintained in a sanitary condition at all times;
(3) 
Floors and inside walls must be housed and washed at reasonable intervals, (not applicable to CAMP);
(4) 
Pits and stalls must be kept clean and free from objectionable smells at all times; and
(5) 
All outside fences must be at least 50 feet from any property boundary line.
C. 
Customary home occupations. Customary home occupations shall be allowed in the CA and CAMP Districts by securing a special permit from the Zoning Board of Appeals of the Town of Busti, provided that:
[Amended 7-24-1995 by L.L. No. 2-1995]
(1) 
Such occupation is carried on in a residential dwelling unit or a building or other structure accessory to such dwelling unit;
(2) 
Such occupation is carried on by a member of the family residing in the dwelling unit;
(3) 
Such occupation is clearly incidental and accessory or secondary to the use of the dwelling unit for residential purposes; and
(4) 
Such occupation is carried on in accordance with the following conditions:
(a) 
No exterior sign, except that placed pursuant to a permit issued under § 405-40 of this chapter, shall be placed on the premises;
(b) 
No exterior storage of materials and no exterior indication of the home occupation or profession or variation of the residential character of the principal building shall be allowed;
(c) 
The occupation or profession shall be carried on solely within the principal building or within a building or other structure accessory thereto;
(d) 
Not more than two persons outside the family shall be employed in a home occupation;
(e) 
No offensive odor, noise, vibration, smoke, dust, heat or glare shall be produced; and
(f) 
Off-street parking sufficient to serve all persons availing themselves of the home occupation shall be provided by the applicant.
D. 
Home enterprise occupation. Home enterprise occupations shall be allowed in the CA District by securing a special permit from the Zoning Board of Appeals of the Town of Busti, provided that:
[Amended 7-24-1995 by L.L. No. 2-1995]
(1) 
Such occupation is carried on in a residential dwelling unit or a building designated for such occupation located on the same lot as the dwelling unit and is not more than 1,500 square feet in size;
(2) 
Such occupation is carried on by a member of the family residing in the dwelling unit;
(3) 
Such occupation is clearly incidental and accessory or secondary to the use of the dwelling unit for residential purposes; and
(4) 
Such occupation is carried on in accordance with the following conditions:
(a) 
No exterior sign, except that placed pursuant to a permit issued under § 405-40 of this chapter, shall be placed on the premises;
(b) 
No exterior storage of materials and no exterior indication of the home occupation or profession or variation of the residential character of the building or lot shall be allowed;
(c) 
Not more than two persons outside the family shall be employed in a home occupation;
(d) 
No offensive odor, noise, vibration, smoke, dust, heat or glare shall be produced;
(e) 
Off-street parking sufficient to serve all persons availing themselves of the home occupation shall be provided by the applicant; and
(f) 
The home enterprise occupation shall be carried on on a lot not less than two acres in size and having a minimum lot width of at least 250 feet;
(5) 
The Zoning Board of Appeals may require, when requested by property owners owning property or persons residing within 1,000 feet of the lot upon which the home enterprise occupation is to be carried on, that a visual barrier or landscaped screen be provided and maintained. This screen may be composed of plants and trees arranged to provide either a low-level or a high-level screen, or both. The high-level screen shall consist of trees planted with specimens no shorter than six feet and planted at intervals of not more than 10 feet. The low-level screen shall consist of shrubs or hedges planted at an interval height of not less than two feet and spaced at intervals of not more than five feet. All plants not surviving three years after planting must be replaced.
E. 
Home occupation of a restricted nature. Home occupation of a restricted nature shall be permitted in a CR District by securing a permit from the Zoning Board of Appeals of the Town of Busti upon the following conditions: The same conditions shall be applicable as are applicable for customary home occupations.
F. 
Golf courses, tennis courts, etc. Golf courses shall be allowed in CAMP, CR and CA Districts; outdoor recreational uses, including tennis, picnic groves, golf and swimming, shall be allowed in the CAMP and CA Districts; indoor and outdoor recreational facilities shall be allowed in the LC District; and club, fraternal lodge and meeting halls shall be allowed in the MR District, by securing a special use permit from the Zoning Board of Appeals of the Town of Busti, provided that:
(1) 
The Board of Zoning Appeals determines that the activities to be conducted by the applicant shall not be detrimental to the neighborhood in which the proposed activities are to be conducted, taking into consideration the physical relationship of the proposed use or uses to the surrounding structures, the probable hours of operation and the social activities to be conducted on the premises. In this regard, the Zoning Board of Appeals shall specifically make findings with respect to the proposed scheme for lighting; the noise likely to be produced and proposals for abatement of the same; the likelihood of traffic congestion; and the proposed landscape;
(2) 
No clubhouse or principal building shall be located closer than 100 feet to any lot line;
(3) 
Parking spaces shall be provided as required by the zoning district regulations or in such greater number as the Board of Zoning Appeals shall determine to be necessary; and
(4) 
Rifle ranges, archery courses, skeet facilities, hunting reserves and any other uses with similar safety hazards shall not be permitted.
G. 
Nursing and convalescent homes or sanitariums. Nursing and convalescent homes and sanitariums shall be allowed in the MR District upon securing a special use permit from the Zoning Board of Appeals of the Town of Busti, upon the following conditions:
(1) 
No principal building or boundary line shall be located closer than 75 feet to the property boundary line; and
(2) 
Location shall be such as to offer reasonable protection to the neighborhood against possible detrimental effects, taking into consideration the physical relationship to the surrounding properties and access to the site over any nearby street.
H. 
Communication towers.
[Amended 9-21-1998 by L.L. No. 5-1998]
(1) 
Purpose. The purpose of this section is to promote the health, safety and general welfare of the residents of the Town of Busti; to provide standards for the safe provision of communications consistent with applicable federal and state regulations; to minimize the total number of communication towers in the community by encouraging shared use of existing and future towers and the use of existing tall building and other high structures; and to minimize adverse visual effects from communication towers by requiring careful siting, visual impact assessment, and appropriate landscaping, thereby protecting the natural features and aesthetic character of the Town of Busti with special attention to the scenic value of Chautauqua Lake.
(2) 
Application of special use regulation:
(a) 
No communication tower, except those approved prior to the effective date of this section, shall be used unless in conformity with these regulations. No communication tower shall hereafter be erected, moved, reconstructed, changed or altered unless in conformity with these regulations. No existing structure shall be modified to serve as a communication tower unless in conformity with these regulations.
(b) 
Applicants proposing to co-locate on a previously approved communication tower do not require a special permit. They are, however, subject to site plan review in accordance with Subsection H(8). The Zoning Board of Appeals (the Board) may require the applicant to submit any of the items under Subsection H(3)(a) below as part of the site plan review process.
(c) 
These regulations shall apply to all property within the following districts: I and CAMP (as described in § 405-14C). Communication towers shall be specifically excluded from all other districts.
(3) 
Shared use of existing tall structures. At all times, the shared use of existing tall structures (for example: municipal water towers, multistory buildings, farm silos, etc.) and existing or approved towers shall be preferred to the construction of new towers.
(a) 
An applicant proposing to share use of an existing tall structure shall be required to submit:
[1] 
A completed application for special permit.
[2] 
Documentation of intent from the owner of the existing facility to allow shared use.
[3] 
A site plan. The site plan shall show all existing and proposed structures and improvements, including antennas, roads, buildings, guy wires and anchors, parking and landscaping, and shall include grading plans for the new facilities and roads. Any methods used to conceal the modification of the existing facility shall be indicated on the site plan.
[4] 
An engineer's report, certifying that the proposed shared use will not diminish the structure and explaining what modifications, if any, will be required in order to certify the above.
[5] 
A completed EAF and completed visual EAF addendum.
[6] 
A copy of its Federal Communications Commission (FCC) license.
(b) 
If an applicant proposing to share use of an existing tall structure submits complete and satisfactory documentation in accordance with Subsection H(3)(a) above, and if modifications indicated according to Subsection H(3)(a) are deemed insignificant by the Board, after the Board conducts a hearing and complies with all SEQRA provisions, the Board shall grant a special permit without further review under this section. If the Board determines that any modifications indicated according to Subsection H(3)(a) are significant, it may require further review according to Subsection H(8) through (16) below.
(4) 
New communication tower. The Board may consider a new communication tower when the applicant demonstrates that shared use of existing tall structures and existing or approved towers is impractical. An applicant shall be required to present an adequate report inventorying all existing tall structures and existing or approved towers within a reasonable distance of the proposed site. This distance shall be determined by the Board in consultation with the applicant. The report shall outline opportunities for shared use of these facilities as an alternative to a proposed new tower. The report shall demonstrate good faith efforts to secure shared use from the owner of each as documentation of the physical, technical and/or financial reasons why shared usage is not practical in each case. Written requests and responses for shared use shall be provided.
(5) 
Shared usage of an existing tower site for the placement of new tower. Where shared use of existing tall structures and existing or approved towers is found to be impractical, the applicant shall investigate shared usage of an existing tower site for its ability to accommodate new tower and accessory uses. Documentation and conditions shall be in accordance with Subsection H(4) above. Any proposals for a new communication tower on an existing tower site shall be subject to the requirements of Subsection H(7) through (17) below.
(6) 
New tower at new location. The Board may consider a new communications tower on a site not previously developed with an existing tower when the applicant demonstrates that shared use of existing tall structures and existing or approved towers is impractical and submits a report as described in Subsection H(4) above and when the Board determines that shared use of an existing tower site for a new tower is undesirable based upon the applicant's investigation in accordance with Subsection H(5). Any proposal for a new communication tower shall also be subject to the requirements of Subsection H(7) through (17) below.
(7) 
New towers: future shared use. The applicant shall design a proposed new communication tower to accommodate future demand for reception and transmitting facilities. The applicant shall submit to the Board a letter of intent committing the owner of the proposed new tower, and his/her successors in interest, to negotiate in good faith for shared use of the proposed tower by other communications providers in the future. This letter shall be filed with the Code Enforcement Officer prior to issuance of a building permit. The letter shall commit the new tower owner and his/her successor in interest to:
(a) 
Respond within 90 days to a request for information from a potential shared-use applicant.
(b) 
Negotiate in good faith concerning future requests for shared use of the new tower by other communications providers.
(c) 
Allow shared use of the new tower if another communications provider agrees, in writing, to pay reasonable charges. The charge may include but is not limited to a pro rata share of the cost of site selection, planning, project administration, land costs, site design, construction and maintenance financing, return on equity, and depreciation, and all of the costs of adapting the tower or equipment to accommodate shared use without causing electromagnetic interference.
(8) 
Site plan review: submission requirements. The applicant shall submit the following:
(a) 
An applicant shall be required to submit a site plan which shall show all existing and proposed structures, including lighting, and improvements, including roads, buildings, tower(s), guy wires and anchors, antennas, parking and landscaping, and shall include grading plans for new facilities and roads.
(b) 
Supporting documentation. The applicant shall submit a complete short EAF, a complete visual assessment form (visual EAF addendum), and documentation on the proposed intent and capacity of use as well as a justification for the height of any tower and justification for any clearing required. The applicant shall also submit a copy of its FCC license.
(9) 
Lot size and setbacks. All proposed communication tower accessory structures shall be located on a single parcel and shall be set back from abutting parcels and street lines a distance sufficient to substantially contain on site all icefall or debris from tower failure and preserve the privacy of any adjoining residential properties.
(a) 
Lot size of parcels containing a tower shall be determined by the amount of land required to meet the setback requirements. If the land is to be leased, the entire area required shall be leased from a single parcel, unless the Board determines that this provision may be waived.
(b) 
Communication towers shall comply with all existing setback requirements of the underlying zoning district or shall be located with a minimum setback from any property line equal to at least 500 feet or 30% of the height of the tower, whichever is greater. Accessory buildings shall comply with minimum setback requirements in the underlying zoning district.
(10) 
Visual impact assessment. The Board may require the applicant to undertake a visual impact assessment, which may include:
(a) 
A "zone of visibility map" shall be provided in order to determine locations where the tower may be seen.
(b) 
Pictorial representations of before and after views from any key viewpoints both inside and outside of the Town, including but not limited to state highways and other major roads, state and local parks, Chautauqua Lake, other public lands, preserves and historic sites normally open to the public, and from any other location where the site is visible to a large number of visitors or travelers. The Board shall determine the key sites at a presubmission conference with the applicant.
(c) 
Assessment of the alternative tower designs and color schemes, as described in Subsection H(11) below.
(11) 
New tower design. Alternate designs shall be considered for new towers, including lattice and single pole structures. The design of a proposed new tower shall comply with the following:
(a) 
Any new tower shall be designed to accommodate future shared use by other communication providers.
(b) 
Unless specifically required by other regulations, a tower shall have a finish that minimizes its degree of visual impact.
(c) 
The maximum height of any new tower shall not exceed that which shall permit operation with only that artificial lighting prescribed by state and/or federal law and/or regulation. The Board, at its discretion, may modify this requirement if the applicant can justify the need to exceed this height limitation.
(d) 
No lighting shall be permitted unless required by the Federal Aviation Administration. If tower lighting is necessary, the applicant shall fully disclose to the Board all lighting options. Only the minimal amount of tower lighting necessary to meet state and/or federal laws and/or regulations shall be authorized. Light pollution or light spillover to the nearby and distant properties shall be minimized to the greatest degree possible by use of shielding. The Board shall, upon review, approve only the lighting scheme that it determines to be least obtrusive to the affected properties.
(e) 
The Board may request a review of the application by a qualified engineer in order to evaluate the need for and the design of any new tower.
(f) 
Accessory buildings shall maximize the use of building materials, colors and textures designed to blend with the natural surroundings.
(g) 
A sign shall be conspicuously placed near the base of a tower, and it shall generally state that danger exists and no access is permitted. No portion of any tower or accessory building shall be used for a sign other than as stated or for any other advertising purpose, including but not limited to company name, phone numbers, banners and streamers.
(12) 
Existing vegetation. Existing on-site vegetation shall be preserved to the maximum extent possible. No cutting of trees exceeding four inches in diameter (measured at a height four feet off the ground) shall take place prior to the approval of the special permit.
(13) 
Screening. Deciduous or evergreen trees planting may be required to screen portions of the tower and accessory buildings from nearby residential property as well as from public sites known to include important views or vistas. Where a site abuts a residential property or public property, including streets, screening shall be required.
(14) 
Access. Adequate emergency and service access shall be provided. Maximum use of existing roads, public or private, shall be made. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion potential.
(15) 
Parking. Parking shall be provided to assure adequate emergency and service access. The Board shall determine the number of required spaces, based upon a recommendation from the applicant. Two parking spaces shall be located in any required yard.
(16) 
Fencing. The tower and any accessory building shall be adequately enclosed by a fence, the design of which shall be approved by the Board. This requirement may be waived by the Board if the applicant demonstrates that such measures are unnecessary to ensure the security of the facility.
(17) 
Inspections and removal. Periodic inspections of all towers shall be required every five years. Inspections shall be conducted by a licensed engineer. Based on the results of an inspection, repair or removal of a tower may be required. Tower owners shall remove all towers and accessory buildings that are unused for a twelve-month period. Tower owners shall notify the Code Enforcement Officer of such nonuse. Removal shall be within six months of written notification to the Town or 90 days of written notification from the Town. Owners may request a special use permit hearing to request an extension of time for removal for just cause. Failure to notify and/or remove an unused tower in accordance with these regulations shall be a violation of this chapter and shall be punishable according to Article XIV of this chapter.
I. 
Utility distribution facilities. Utility distribution facilities, including electrical distribution substations, compressor stations, and other public utility structures, shall be allowed in the CAMP and I Districts by securing a special use permit from the Zoning Board of Appeals of the Town of Busti, provided as follows:
[Amended 9-21-1998 by L.L. No. 5-1998]
(1) 
Purpose. The purpose of this section is to promote the health, safety and general welfare of the residents of the Town of Busti; to provide standards for the safe provision of utility distribution facilities consistent with applicable federal and state regulations; to minimize the total number of utility distribution facilities in the community by encouraging use of such facilities; and to minimize adverse visual, sound and odor effects from utility distribution facilities by requiring careful siting, visual impact assessment, and appropriate landscaping, thereby protecting the natural features and aesthetic character of the Town of Busti with special attention to the scenic value of Chautauqua Lake.
(2) 
Application of special use regulation.
(a) 
Utility distribution facilities, except those approved prior to the effective date of this section, may continue to be used unless in conformity with these regulations. No utility distribution facility shall hereafter be erected, moved, reconstructed, changed or altered unless in conformity with these regulations. No existing structure shall be modified to serve as a utility distribution facility unless in conformity with these regulations.
(b) 
Applicants proposing to co-locate on a previously approved utility distribution facility do not require a special permit. They are, however, subject to site plan review in accordance with Subsection I(8). The Zoning Board of Appeals (the Board) may require the applicant to submit any of the items under Subsection I(3)(a) below as part of the site plan review process.
(c) 
These regulations shall apply to all property within the following districts: CAMP and I Districts. Utility distribution facilities shall be specifically excluded from all other districts.
(3) 
Shared use of existing tall structures. At all times, the shared use of existing utility distribution facilities shall be preferred to the construction of new towers.
(a) 
An applicant proposing to share use of utility distribution facilities shall be required to submit:
[1] 
A completed application for a special permit.
[2] 
Documentation of intent from the owner of the existing facility to allow shared use.
[3] 
A site plan. The site plan shall show all existing and proposed structures and improvements, including antennas, roads, buildings, guy wires and anchors, parking and landscaping, and shall include grading plans for the new facilities and roads. Any methods used to conceal the modification of the existing facility shall be indicated on the site plan.
[4] 
An engineer's report, certifying that the proposed shared use will not diminish the facility and explaining what modifications, if any, will be required in order to certify the above.
[5] 
A completed short EAF and a completed visual EAF addendum.
[6] 
Demonstrate that no additional noise or odor shall emanate from the facility.
(b) 
If an applicant proposing to share use of an existing utility distribution facility submits complete and satisfactory documentation in accordance with Subsection I(3)(a) above, and if modifications indicated according to Subsection I(3)(a) are deemed insignificant by the Board, after the Board conducts a hearing and complies with all SEQRA provisions, the Board shall grant a special permit without further review under this section. If the Board determines that any modifications indicated according to Subsection I(3)(a) are significant, it may require further review according to Subsection I(8) through (17) below.
(4) 
New utility distribution facilities. The Board may consider new utility distribution facilities when the applicant demonstrates that shared use of existing facilities is impractical. An applicant shall be required to present an adequate report inventorying all existing utility distribution facilities within a reasonable distance of the proposed site. This distance shall be determined by the Board in consultation with the applicant. The report shall outline opportunities for shared use of these existing facilities as an alternative to a new facility. The report shall demonstrate good faith efforts to secure shared use from the owner of each as documentation of the physical, technical and/or financial reasons why shared usage is not practical in each case. Written requests and responses for shared use shall be provided.
(5) 
Shared usage of an existing utility distribution facilities: (Reserved)
(6) 
New utility distribution facilities at new location. The Board may consider new utility distribution facilities on a site not previously developed with an existing utility distribution facility when the applicant demonstrates that shared use of existing facilities is impractical and submits a report as described in Subsection I(4) above, and when the Board determines that shared use of an existing utility distribution facility is undesirable based upon the applicant's investigation in accordance with Subsection I(5). Any proposal for a new utility distribution facility shall also be subject to the requirements of Subsection I(7) through (16) below.
(7) 
New utility distribution facility, future shared use. The applicant shall design a proposed new utility distribution facilities to accommodate future demand for transmission for such facility. The applicant shall submit to the Board a letter of intent committing the owner of the proposed utility distribution facility and his/her/its successors in interest to negotiate in good faith for shared use of the proposed utility distribution facility by other utility providers in the future. This letter shall be filed with the Code Enforcement Officer prior to issuance of a building permit. The letter shall commit the new utility distribution facility and his/her/its successor in interest to:
(a) 
Respond within 90 days to a request for information from a potential shared-use applicant.
(b) 
Negotiate in good faith concerning future requests for shared use of the new facility by other utility providers.
(c) 
Allow shared use of the new utility distribution facility if another utility provider agrees, in writing, to pay reasonable charges. The charge may include but is not limited to a pro rata share of the cost of site selection, planning, project administration, land costs, site design, construction and maintenance financing, return on equity, and depreciation, and all of the costs of adapting the utility distribution facilities or equipment to accommodate shared use.
(8) 
Site plan review, submission requirements. The applicant shall submit the following:
(a) 
An applicant shall be required to submit a site plan which shall show all existing and proposed structures, including lighting, and improvements, including roads, buildings, tower(s), guy wires and anchors, antennas, parking and landscaping, and shall include grading plans for new facilities and roads.
(b) 
The plan shall ensure that the utility distribution facilities shall be in a completely enclosed structure which conforms in character and appearance to other buildings located within 1,500 feet of the proposed structure.
(c) 
The facility plan shall show that the facility shall be located at least 500 feet from any property boundary line and at least 750 feet from any current structure.
(d) 
The facility plan shall show that it does not involve business offices, storage areas or structures requiring trucking or other truck movements.
(e) 
Supporting documentation. The applicant shall submit a complete short EAF, a complete visual assessment form (visual EAF addendum), noise assessment form (noise EAF addendum) and documentation on the proposed intent and capacity of use, as well as a justification for the height of any utility distribution facilities and justification for any clearing required.
(9) 
Lot size and setbacks. All proposed utility distribution facilities' accessory structures shall be located on a single parcel and shall be set back from abutting parcels and street lines a distance sufficient to substantially preserve the privacy of any adjoining residential properties.
(a) 
Lot size of parcels containing utility distribution facilities shall be determined by the amount of land required to meet the setback requirements. If the land is to be leased, the entire area required shall be leased from a single parcel, unless the Board determine that this provision may be waived.
(b) 
Utility distribution facilities shall be located with a minimum setback from any property line equal to at least 500 feet and 750 feet from any existing structure. Accessory buildings shall comply with minimum setback requirements in the underlying zoning district.
(10) 
Visual/noise/odor impact assessments. The Board may require the applicant to undertake visual and noise impact assessments, which may include:
(a) 
A "zone of visibility map" and/or "zone of noise penetration" and/or "zone of odor penetration map" shall be provided in order to determine where the facility may be seen and what noise or odor will be emanating from it.
(b) 
Pictorial representations of before and after views from any key viewpoints both inside and outside of the Town, including but not limited to state highways and other major roads, state and local parks, Chautauqua Lake, other public lands, preserves and historic sites normally open to the public, and from any other location where the site is visible to a large number of visitors or travelers. The Board shall determine the key sites at a presubmission conference with the applicant.
(c) 
Assessment of the alternative facility designs and color schemes, as described in Subsection I(11) below.
(d) 
Engineering studies showing likely noise impacts upon properties within a two-thousand-foot radius of the facility as well as alternate designs to reduce or eliminate the transmission of noise to areas outside the walls of the utility distribution facilities.[1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).
(e) 
Studies to show that no odor will emanate from the facility.
(11) 
New facility design. Alternate designs shall be considered for new facilities, including underground. The design of a proposed new utility distribution facility shall comply with the following:
(a) 
Any new utility distribution facilities shall be designed to accommodate future shared use by other utility providers.
(b) 
Unless specifically required by other regulations, a utility distribution facility shall have a finish that minimizes its degree of visual impact.
(c) 
The maximum height of any new utility distribution facility shall not exceed that which shall permit operation without artificial lighting of any kind or nature, except as required by state and/or federal law and/or regulation. The Board, at its discretion, may modify this requirement if the applicant can justify the need to exceed this height limitation.
(d) 
No lighting shall be permitted unless required by state or federal law. If facility lighting in necessary, the applicant shall fully disclose to the Board all lighting options. Only the minimal amount of lighting necessary to meet state and/or federal laws and/or regulations shall be authorized. Light pollution or light spillover to the nearby and distant properties shall be minimized to the greatest degree possible by use of shielding. The Board shall, upon review, approve only the lighting scheme that it determines to be least obtrusive to the affected properties.
(e) 
The Board may request a review of the application by a qualified engineer in order to evaluate the need for and the design of any new utility distribution facility, the cost of which shall be paid by applicant.
(f) 
Accessory buildings shall maximize the use of building materials, colors and textures designed to blend with the natural surroundings.
(g) 
A sign shall be conspicuously placed near the base of a utility distribution facility, and it shall generally state that danger exists and that no access is permitted. No portion of any utility distribution facility or accessory building shall be used for a sign other than as stated or for any other advertising purpose, including but not limited to company name, phone numbers, banners and streamers.
(h) 
No noise shall be permitted to extend beyond the premises except at a level of no more than 45 dBA for more than 30 minutes in a twenty-four-hour period. The applicant shall fully disclose to the Board all noise options. Only the minimal amount of noise necessary shall be authorized. Noise pollution to nearby and distant properties shall be minimized to the greatest degree possible by use of shielding, burying of noisemaking devices, insulation, buildings and the use of technology. The Board shall, upon review, approve only the noise levels and scheme that it determines to be least obtrusive to the affected properties.
(i) 
No odor shall be permitted to extend beyond the premises. The applicant shall fully disclose to the Board all potential odor problems. Odor pollution to the nearby and distant properties shall be prohibited by the use of appropriate devices. The Board shall, upon review, approve only the odor levels and scheme that it determines to be least likely to allow odors to extend to adjacent or distant properties.
(12) 
Existing vegetation. Existing on-site vegetation shall be preserved to the maximum extent possible. No cutting of trees exceeding four inches in diameter (measured at a height four feet off the ground) shall take place prior to the approval of the special permit.
(13) 
Screening. Facades may be required to be built and deciduous or evergreen tree planting may be required to screen portions of the facility and accessory buildings from nearby residential property as well as from public sites known to include important views or vistas. Where a site abuts a residential property or public property, including streets, facades and screening shall be required where the facility is located above ground.
(14) 
Access. Adequate emergency and service access shall be provided. Maximum use of existing roads, public or private, shall be made. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion potential.
(15) 
Parking. Parking shall be provided to assure adequate emergency and service access. The Board shall determine the number of required spaces, based upon a recommendation from the applicant. Two parking spaces shall be located in any required yard.
(16) 
Fencing. The facility shall be adequately enclosed by a fence, the design of which shall be approved by the Board. This requirement may be waived by the Board if the applicant demonstrates that such measures are unnecessary to ensure the security of the facility.
(17) 
Inspections and removal. Periodic inspections of all towers shall be required every five years. Inspections shall be conducted by a licensed engineer at the owner's expense. Based on the results of an inspection, repair or removal of a facility may be required. Utility distribution facility owners shall remove all facilities and accessory buildings that are unused for a twelve-month period. Utility distribution facility owners shall notify the Code Enforcement Officer of such nonuse. Removal shall be within six months of written notification to the Town or within 90 days of notification by the Town. Owners may request a special use permit hearing to request an extension of time for removal for just cause. Failure to notify and/or remove an unused utility distribution facility in accordance with these regulations shall be a violation of this chapter and shall be punishable according to Article XIV of this chapter.
J. 
Other special use permits. Other uses permitted in certain districts on securing a special use permit from the Zoning Board of Appeals of the Town of Busti in accordance with Article XII of this chapter are:
(1) 
Planned residential unit development and cluster-unit residential development in CR, CAMP, CA and MR Districts.
(2) 
Parks and administrative offices (governmental) in CR, CAMP, CA and MR Districts.
(3) 
Public uses, including schools, museums, highway garages and storage of road equipment and materials, in CAMP, CA and MR Districts.
(4) 
Semipublic uses in CAMP, CA and SR Districts.
(5) 
Wildlife sanctuaries, woodland preserves and arboretums in CAMP, CR and CA Districts.
K. 
Private communication towers. Private communication towers shall be permitted by special use permit issued by the Zoning Board of Appeals, provided as follows:
[Added 10-16-2006 by L.L. No. 3-2006]
(1) 
Design.
(a) 
No such proposed structure, including the tower, antenna, and all associated components, shall exceed 80 feet in height as measured from the lowest exterior grade on the proposed site, and no part of the proposed structure shall extend beyond the applicant's property boundary line and its vertical plane extension.
(b) 
The proposed installation complies with all parts of NFPA 70, Article 810.III of the National Electric Code.
(c) 
The proposed tower is designed in accordance with generally accepted engineering standards so that its construction and operation will not pose a hazard to persons or property on the ground or in the vicinity of the tower; any tower not specifically designed to support an antenna or any tower privately built of components shall be reviewed by a licensed professional engineer, who shall provide to the Zoning Board of Appeals a sealed document attesting to the adequacy of the proposed tower.
(2) 
Location.
(a) 
The topography and location of the proposed site are reasonably adapted for the proposed tower.
(b) 
The proposed tower is set back from adjacent property lines by a distance equivalent to its height, measured as follows:
[1] 
If the tower is affixed to the ground, from the ground to the highest point of the tower or anything attached to it; or
[2] 
If the tower is affixed to another structure, from the point at which it is affixed to the highest point of the tower or anything attached to it.
(3) 
General impact mitigation.
(a) 
The plans for the site (and the vegetation, screens, fencing or other devices when completed) provide buffering of the site and tower from adjoining land, to the extent possible.
(b) 
No more than one such tower shall be constructed per parcel, provided there is no evidence that the applicant subdivided his property to thwart the spirit of this provision.
(c) 
The applicant shall operate the tower in a manner so that it does not become a public nuisance.
The owner of a dwelling unit who maintains a use at his or her dwelling unit other than one permitted pursuant to this chapter or any prior zoning code, ordinance or regulation heretofore adopted or enacted by the Town Board of the Town of Busti shall be granted a special use permit for such use by the Zoning Board of Appeals, provided that:
A. 
Application for such permit it made to the Code Enforcement Officer on or before September 1, 1997.
B. 
The nonconforming or nonpermitted use is carried on by the owner or resident of the dwelling unit and by no other person.
C. 
The applicant provided clear and convincing proof to the Zoning Board of Appeals that such use was carried on prior to July 1, 1986.
D. 
The Zoning Board finds that the applicant has abided in the past by, and the applicant agrees to abide in the future by, the following conditions:
(1) 
Such occupation is carried on in a residential dwelling unit or buildings or other structures accessory to such dwelling unit; and
(2) 
Such occupation is carried on in accordance with the following conditions:
(a) 
No exterior sign, except that placed consistent with the provisions of § 405-40 of this chapter, shall be placed on the premises;
(b) 
No exterior storage of materials and no exterior indication of the home occupation or profession or variation of the residential character of the principal building shall be allowed that is more extensive than that existing as of July 1, 1986;
(c) 
The occupation, profession or business shall be carried on solely within the principal building or within buildings or other structure accessory thereto;
(d) 
Employment shall be limited to the maximum number of persons employed during any one time during the period between July 1, 1976 and July 1, 1986;
(e) 
No offensive odor, noise, vibration, smoke, dust, heat or glare shall be produced; and
(f) 
Off-street parking sufficient to serve all persons availing themselves of the home occupation shall be provided by the applicant.
E. 
Such permit shall be granted for a period of five years. It shall be renewed for successive periods of five years upon application by the permit holder where the Zoning Board of Appeals finds that, at the time of application, the permit holder had complied with all conditions above referred to and the permit holder has reaffirmed his or her commitment to abide by the above conditions.
F. 
Special use permits issued pursuant to this section shall in all other ways conform to the provisions of Article XII relative to the issuance of special use permits.